[2022] KEHC 15882 (KLR)

In the Matter of JMM (Deceased) (Succession Cause 292 of 2013) [2022] KEHC 15882 (KLR) (Family) (11 November 2022) (Judgment)

Neutral citation: [2022] KEHC 15882 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Family

Succession Cause 292 of 2013

MA Odero, J

November 11, 2022

Judgment

1. Before this court is the summons for revocation/annulment of grant dated July 17, 2014 by which the objector/applicant CWM seeks to have the grant of letters of administration intestate issued to ANM on September 12, 2013 revoked/annulled. The summons was based on the following grounds:-'a.The administrator while petitioning this honourable court for the letters of administration willfully and purposely concealed to disclose the names of the deceased’s wife CWMM.b.The letters of administration have already been issued in the name of the administrator ANM who is the deceased’s mother in total disregard to the deceased’s immediate family members.c.This honourable court should make an order staying the use of that letter of administration and or subsequent confirmation of grant and distribution of the estate as the objector pursues this application for revocation of the grant.d.That unless this court revokes the said grant, the objector and deceased’s children stand the risk of not inheriting their father, the deceased.

2. The summons which was premised upon section 76 of the Law of Succession Act and rule 44 (1) of the Probate and Administration Rules and was supported by the affidavit of even date and the further affidavit dated June 11, 2016 both sworn by the objector. One INM also swore an affidavit dated July 17, 2014 in support of the summons for the revocation of grant.

3. The respondent ANM opposed the summons through her replying affidavit dated June 14, 2016 and the further response dated July 8, 2016. The summon was canvassed by way of viva voce evidence. The hearing commenced before Hon Lady Justice Margaret Muigai who heard the objectors case. Following the transfer of the honourable judge to Machakos High Court, I took over the matter and heard the respondents case.

Background 4. This succession cause relates to the estate of the late JMM (hereinafter ‘the deceased’) who died intestate at the Kikuyu PCEA Hospital on September 11, 2012. A copy of the death certificate serial number XXXX is annexed to the petition for grant of letters of administration intestate dated February 2, 2013.

5. Following the demise of the deceased, his mother ANM (the respondent herein) filed a petition dated February 2, 2013 seeking to be appointed as administrator of the estate. In the said petition the respondent named herself as the only survivor of the deceased and the sole beneficiary to his estate. The assets of the estate were listed as follows:-1. Standard Chartered Bank a/c No XXXX – Kshs 560,000/-2. Half share in LR No 4871/XXX – Kshs 630,0003. Motor vehicle No XXX - Kshs 300,000

6. The court on September 12, 2013 issued a grant of letters of administration in respect of the estate of the deceased to the respondent. The applicant has now filed this summons seeking to revoke the grant issued to the respondent on grounds that the same was obtained fraudulently by concealment of material facts.

The evidence 7. The objector CWM told the court that she is a widow of the deceased. The applicant relied entirely upon her affidavit dated July 17, 2014. She stated that contracted a marriage with the deceased under Kikuyu customary law in the year 2003.

8. The objector states that the deceased was the father to three (3) children –(i)IN – who was born to deceased and his late wife AW(ii)IMM – 13 years(iii)JMM – 3 years.That the family resided with the deceased in the matrimonial home in Kiambaa, Muguga being LR No XXXX.

9. The objector accuses the respondent of moving to obtain letters of administration without her participation and/or consent. That the respondent obtained the grant fraudulently by naming herself as the sole beneficiary and concealing the existence of the objector and the deceased’s three (3) children. That in obtaining the said grant the respondent omitted to annex the chief’s letter as required.

10. The objector states that as a result, the deceased’s children have been denied their rightful inheritance from the estate of their father. The objector on the basis of the above prays to have the grant issued to the respondent revoked.

11. PW1 IN told the court that she is the first born child of the deceased arising from the marriage by the deceased to her late mother AWM. She states that she lived with her father in the family home in Kiamba Muguga LR No XXXX before the respondent chased them away.

12. PW1 states that she was shocked to realize that the respondent had proceeded to obtain letters of administration to the estate of the deceased fraudulently by failing to disclose her existence in effect disinheriting her. PW1 asserted that she supports the summons filed by the objector seeking revocation of the grant.

13. PW3 JKK was the father of the objector. He told the court that on April 27, 2007 members of the deceased’s family came to his home. That the visitors were a group of five (5) people who included ANM, the mother of the deceased who had come to commence marriage/dowry negotiations in respect of his daughter CW. He states that the ceremony of ‘kuhanda ithigi’ was conducted to confirm the intention of the deceased to marry the objector.

14. PW3 told the court that on that occasion he was paid Kshs 26,000 as part of the dowry. He told the court that in the year 2011 the objector returned to his home following a misunderstanding with the deceased. He confirms that no ‘ngurario’ ceremony was conducted but states that he attended the burial of the deceased.

15. PW4 EMN told the court that on April 27, 2007 he was present at the home of the objectors father (PW3) when members of the family of the deceased led by his mother ANM visited the objectors father. That he witnessed the payment of Kshs 26,000/- to the father of the objector as part of the ‘ruracio’ (dowry payment).

16. The respondent ANM told the court that the deceased was her eldest son. She confirmed that she had applied for and obtained letters of administration in respect of the estate of the deceased issued to her on September 12, 2013. The respondent concedes that IN is a child of the deceased. She states that when the deceased married his late wife AW she came into the marriage with the child IN who by then was aged three (3) years. She further confirms that the deceased accepted his wife’s child and raised her as his own. That the family lived in her compound in M XXXX. The respondent categorically denies that the deceased ever married CW (the objector herein). She also denies that the deceased ever sired any children with the objector. According to the respondent the objector is the wife of one ‘GM’ and that the two (2) children of the objector were fathered by the said ‘GM’. According to the respondent, this is the reason why she did not include the objector and her children as beneficiaries of the estate of the deceased.

17. The respondent insists that the property known as LR XXX belongs to her and does not form part of the estate of the deceased. She further asserts that LR XXXX was owned jointly by the deceased and his brother and that the motor vehicle registration No XXX belonged to the deceased.

18. DW2 SWM told the court that the deceased was his nephew. He confirms that the deceased had married one AW who came into the marriage with a daughter called IN. DW2 insists that after the said AW passed away the deceased did not marry any other wife, that he merely had a casual relationship with the objector. DW2 states that the objector was in actual fact married to one GM with whom she had two (2) children.

19. DW2 confirmed that he visited the home of the Objectors father but denies that they went there for marriage negotiations. He stated that the family of the Deceased went to the Objectors home in a visit called ‘kiama’ to warn the objector against ever returning to the home of the Deceased as she was the wife of somebody else.

20. DW3 SMM is a younger brother to the Deceased. He relied upon his written statement dated May 14, 2015 on his evidence in chief. DW3 denies that the Deceased ever married the Objector and denies that the Deceased is the father of the Objectors children. He stated that he knew the Objector as a neighbour and states that she was married to one GM with whom she bore two (2) children.

21. DW3 told the court that he and the Deceased jointly purchased LR No XXXX. However, the Deceased vide a Sale Agreement dated February 1, 2012 later agreed to sell his share of the property to his brother for Kshs 1. 2 million. DW3 states that he made a cash payment of Kshs 900,000/- to the Deceased and that the balance of Kshs 300,000/- remains due and owing to the estate.

22. Upon conclusion of the evidence, the parties were invited to file and exchange written submissions. The objector filed the submissions dated July 4, 2022 later whilst the Respondent relied upon her written submissions dated July 18, 2022.

Analysis and Determination 23. I have carefully considered the summons before this court, the Reply filed by the Respondent, the evidence adduced in court as well as the written submissions filed by the parties. The following are the issues which arise for determination.(i)Whether the Objector was a wife to the Deceased.(ii)What property constitute the estate of the Deceased.(iii)Whether the Grant issued to the Respondent on September 12, 2013 ought to be revoked.

(i) Whether the Objector was a wife. 24. It is common ground that the Deceased JMM passed away on September 11, 2012. It is also agreed by all parties that the Deceased was once married to one AW who came into the marriage with a three (3) year old daughter named IN. The parties all agree that the said AW who died in the year 2003 predeceased her husband. It is therefore proved that IN being a stepdaughter to the Deceased is a beneficiary to the estate.

25. The Objector claims to be the widow of the Deceased. She told the court that the Deceased married her under Kikuyu Customary Law in the year 2007. The Objector stated that the family of the Deceased led by his mother came to her father’s home on April 27, 2007, and fulfilled the Kikuyu Customary marriage rites.

26. The Respondent who was the Deceased’s mother vehemently denies the claim by the Objector that she was a wife to the Deceased. The Respondent insists that following the demise of his wife, the Deceased never remarried. According to the Respondent, the Objector is actually married to one ‘G’ with whom she has two (2) sons.

27. The evidence of the objector regarding her marriage to the Deceased is corroborated by her father JKK (PW3). This witness confirms that the mother of the Deceased led a delegation of five (5) people to his home on April 27, 2007. He states that they had come to perform a ceremony known in Kikuyu as ‘kuhanda ithigi’, which signified their intention to become in-laws to PW3. The objector’s father states that on that occasion he was paid Kshs 26,000/- as part of the dowry.

28. The evidence of PW3 is corroborated by his neighbour EMN (PW4) who was present when the visitors came. PW4 states that he witnessed PW3 receiving a sum of Kshs 26,000/- from the family of the Deceased.

29. Both PW3 and PW4 gave clear evidence regarding the events of April 27, 2007. They both remained unshaken under cross-examination. Both witnesses were elderly gentlemen and it is unlikely that they were lying to the court.

30. The Deceased’s mother confirms that she did visit the objectors home in April 2007 accompanied by family members. According to Respondent, they did not visit the objectors father to inform him of their intention to marry his daughter. The Respondent states that they went there to tell the father to warn the Objector to stay away from the Deceased as she was a married woman.

31. The evidence of the Respondent is corroborated by DW2 SWM an uncle of the Deceased who testified that he accompanied the respondent on the visit to the Objectors father. According to DW2 the Objectors husband one ‘GM’ had issued threats over the relationship between the objector and the Deceased. Thus they went to warn her to keep away from the Deceased.

32. While I cannot claim to be an expert in Kikuyu customs it is curious why the mother of the Deceased would lead a delegation to the home of the Objectors father merely to tell him to warn his daughter to keep away from the Deceased. The aggrieved party was the Objectors alleged husband. It was he who ought to have gone to the home of the Objector to complain to her father about her wayward behavior. Moreover why did the family of the Deceased gift to the Objectors father Kshs 26,000/-. Was the money part of the warning?

33. Secondly, whereas DW2 says he accompanied the Respondents mother to the Objectors home, the Respondent herself denied ever having gone to the Objectors home to pay dowry. The Respondent makes a blanket denial of the payment of dowry. She did not raise the issue of having gone there to warn the Objector. This story of this warning came from DW2. The Respondent and DW2 give inconsistent evidence in this regard.

34. Finally, I was able to observe the demeanor of DW2 as he testified. He did not strike me as an honest witness. In my view, the tale about going to the Objectors home in order to deliver a warning was clearly an afterthought. I find that the visit to the objectors home on April 27, 2007 was undertaken as an introductory meeting to initiate the desire to marry the Objector.

35. The parties in this case have argued at length regarding the issue of whether the Objectors was a wife to the deceased and whether the children of the Objector were the children of the Deceased. The Objector has stated that when she was married by the Deceased she already had one son by the name of IM and that later she bore the Deceased a son by the name WMM. The Respondent and her witnesses stated that the Objector was married to someone else and those children were sired by her husband. The Respondent has maintained that bride price was not paid and no customary rite was ever conducted to make a Kikuyu Customary Marriage.

36. In Eva Naima Kaaka & another v Tabitha W Mararo [2018] eKLR, the Court of Appeal quoted Eugene Cotrain’s casebook on Accusatory Law that at page 30 sets out the essentials of Kikuyu Customary Marriage. These are stipulated as:'1. Capacity; the parties must have capacity to marry and also the capacity to marry each other.2. Consent; the parties to the marriage and their respective families must consent to the union3. Ngurario; no marriage is valid under Kikuyu customary law unless the Ngurario ram is slaughtered.4. Ruracio; there can be no valid marriage under Kikuyu law unless a part of the ruracio (dowry) has been paid.5. Commencement of cohabitation; the moment at which a man and a woman legally become husband and wife is when the man and woman commence cohabitation i.e under the capture procedure when the marriage is consummated after the eight days’ seclusion, and nowadays when the bride comes to the bride grooms home'.

37. In the same case, the Court of Appeal in observing that ‘ngurario’ ceremony did not take place stated:'From the above it becomes apparent that, no ram or goat was slaughtered to mark the coming into existence of a marriage. Without the presence of the central feature of the ngurario ceremony, it cannot be said that a valid Kikuyu customary marriage came into existence between W and the Deceased.'

38. In the instant case the Objector and her witnesses stated that the family of deceased visited her father for introduction and gave him a sum of Kshs 26,000/- which according to her was a part payment of the (‘Ruracio’) bride price. The Respondent was adamant that no bride price was paid and there was no marriage or even the intention of marriage. In cross-examination the Respondent categorically says,'I have never gone to C's home to pay dowry.' There was no other event that took place after the supposed visit, more pertinently, there was no ‘ngurario’ ceremony which is an integral part of a Kikuyu Customary Marriage. The critical element as a valid Kikuyu Marriage is the ‘Ngurario’. All the parties agree that no ‘Ngurario’ ceremony was ever conducted. The Objector in her cross-examination concedes that:'We did not do the Ruracio ceremony'.I therefore find that no Kikuyu Customary marriage existed between the Deceased and the Objector.

39. The absence of ‘Ngurario’ does not negate the fact of a marriage. A marriage can be presumed by the conduct of the parties as well as the period of cohabitation.

40. PW1 IN who is a daughter to the Deceased told the court that the Objector was her father’s wife and stated that all lived as a family in XXX. However, the fact that the said IN has recognized the Objector as her father’s wife is not conclusive proof of the existence of a marriage.

41. The Objector has annexed to her supporting Affidavit dated July 17, 2014 an Affidavit sworn by the Deceased on August 28, 2006 (Annexutre CWM-3’).

42. The Objectors seeks to rely on an Affidavit sworn by the Deceased on August 28, 2006 in which the Deceased declared that he was married to the Objector in support of her claim to have been married to the Deceased. This Affidavit is dated August 2006 whilst by the Objectors own admission the initial steps for the customary marriage did not commence until April 2007. This Affidavit is not proof of a marriage.

43. The photographs produced by the Objector do prove that she knew and interacted with the Deceased (and his family) but such photographs do not prove the existence of a marriage between the two.

44. In the alternative, did the deceased cohabit with the Objector and was there a presumption of marriage? The Objector testified that she cohabited with the deceased from the year 2003 to 2011. The Court of Appeal in the case of Phylis Njoki Karanja & 2 others vs Rosemary Mueni Karanja & another [2009] eKLR in holding that the presumption of marriage could be drawn from two conjoined factors, namely, long cohabitation and acts of general repute, stated as follows-'Before a presumption of marriage can arise a party needs to establish long cohabitation and acts of general repute; that long cohabitation is not mere friendship or that the woman is not a mere concubine but that the long cohabitation has crystallized into a marriage and it is safe to presume the existence of a marriage.'

45. The Objector has stated that she started living with the deceased herein in 2003 and she had one child by then. That she sired a child with the Deceased. PW1 testified that when her mother died the deceased got married to the Objector herein. The Respondent and her children testified that the Deceased did not get remarried after losing the first wife. The testimony of DW1 (a bother to Deceased) was that the Deceased had a casual relationship with the Objector. The Objector relies on a chief’s letter dated July 7, 2014 (Annexture ‘CW5’) that lists the Objector, her children and I as beneficiaries of the Deceased. There is also another chief’s letter provided by the Respondent and dated May 31, 2013 signed by a different Chief stating that the Respondent is the only beneficiary of the Deceased. This court cannot rely on any of these letters because they give contradictory information. It is clear that the two chiefs merely wrote from what they were informed by the parties.

46. A marriage is law is proved either by production of a marriage certificate or in the case of a customary marriage by evidence showing that all the cultural rites of that particular community were conducted. This did not happen in this case. By the Objectors own admission no ‘Ngurario’ ceremony took place to cement the Kikuyu Customary marriage.

47. Indeed, it is evident that inasmuch as the objector and the Deceased may have been cohabitating they separated in the year 2011. By the time Deceased passed away, the couple were not living together as stated by the objector’s father. Moreover it is noteworthy that the Objector was not mentioned as a widow in the Newspaper Advert announcing the death of the Deceased nor was she included in the Funeral Programme (copies annexed to the objectors supporting Affidavit dated July 17, 2014). If the Objector truly was a wife to the Deceased then I have no doubt she would have taken legal steps (as many have) to ensure her inclusion in the funeral arrangements for her late husband. Why would a wife wait until almost four (4) years after the death of her husband to file a suit in court?

48. I have no doubt that the Deceased and the Objector may have cohabitated for a period of time. There may even have been an intention to marry. However, a mere intention is not enough. There is no evidence to prove conclusively that the two (2) were married either under statute or under customary law. Neither is there sufficient evidence to lead the court to find that a presumption of marriage existed. I am therefore unable to find that the objector was a wife to the Deceased.

49. Regarding the two (2) children, the Objector insists that they were sired by the Deceased. On the other hand, the Respondent states that the Objectors children were sired by her husband one ‘GM’. The Respondent went to the extent of stating that the Deceased was impotent thus had no capabilities of siring a child. This however is not proven. The Objector produced as exhibit several photographs depicting the Respondent posing with her children. The photographs are not proof of paternity. The Objector has not produced any birth certificates which indicate that the Deceased was the father of her children.

50. In matters of succession the determining factor is not paternity, but rather whether one was a dependant of the Deceased. Section 29 of the Law of Succession Act defines a dependant in the following manner:-'29 For the purpose of this part, 'dependant' means –a.b.Such of the Deceased’s parents, step-parents, grandparents, grandchildren, step-children, children whom the Deceased had taken into her family as his own, brothers and sisters, and half-brothers and half-sisters as were being maintained by the deceased immediately prior to his death; andc.'

51. The Objector states that when she began to cohabit with the Deceased, he adopted her son. She states that the Deceased provided for both children and maintained them as his own.

52. The Respondent on the other hand denies all knowledge of the two (2) minors. She denies posing for photographs with them and says they were just village children who happened to be in her home at the time. As a court, I am not convinced that the Respondent does not know the said minors. Her denial rings hollow.

53. The Objector has produced several documents to support her claim that the two (2) minors were in fact dependants of the Deceased. CWM-1 is a document of vaccination calendar for the child WMM, which bears the name of the Deceased under father’s name. There is also a Birth Notification Certificate Serial No BC XXXXXX which notification was issued to the Deceased on November 16, 2010.

54. The Objector has also attached receipts from [particulars withheld] showing that the Deceased used to cater for the school expenses for IM. There is also a church card belonging to IM where there is an entry of the Deceased’s name as the father of IM.

55. From the documents presented by the Objector it appears that the deceased took up responsibility for the two (2) children. The children undoubtedly regarded him as a Father. It is not lost to this court that the younger child bears the name ‘M’ which is the name of the Deceased’s father in accordance with Kikuyu Customary naming practices. From the evidence I am satisfied that the Deceased did take the two (2) minors into his home and maintained them as a father would. IN did tell the court that the Deceased lived with the two (2) children in his home and treated them both as his own. I therefore find that the two (2) children are dependants of the Deceased.

(iii) Dispute over the properties 56. The position of the Objector is that LR No XXXX (the ‘XXXX Property’) and LR XXX both form part of the estate of the Deceased. This is denied by the Respondent who asserts that Plot TXXX belongs wholly to her having been transferred to her by the Deceased during his lifetime while Plot XXX which was jointly owned by the Deceased and his brother now belongs to DW2 who bought out the Deceased’s share of the land for Kshs 1. 2 million.

57. DW2 confirms that he did buy out the Deceased’s share in M 235. He produces as evidence a Sale Agreement dated February 1, 2012 (Annexture ANM ‘4’). DW2 states that he paid the Deceased in cash an amount of Kshs 900,000/- leaving a balance of Kshs 300,000/- due and owing to the estate.

58. Despite the Respondent’s claim that Title in M XXX had been transferred to herself she did not produce in court a copy of the said Title Document. What the Court has is a copy of the Green Card for Plot T XXX which indicates that the property was transferred to the Respondent on December 22, 2011 and a fresh Title issued. As stated earlier no copy of the Title or of the transfer was availed in court.

59. The Objector submits that the Respondent illegally removed a caution which she (the Objector had lodged on the Title in September 2010 and alleges that the Respondent transferred the land to herself shortly prior to the death of the Deceased. The Objector has not produced any evidence whatsoever to prove these allegations.

60. The question of whether the two (2) parcels of land belonged to the Deceased or to the Respondent and DW2 is not one which this court sitting as a Probate Court has jurisdiction to determine.

61. Matters relating to the ownership use and occupation of land have now under Article 162 of theConstitution of Kenya 2010 been mandated to be determined by a specialized court being the Environment and Land Court (‘ELC’).

62. Section 13 of the Environment and Land Court Act provides for the jurisdiction of that court as follows:-13. Jurisdiction of the Court(1)The Court shall have original and appellate jurisdiction to hear and determine all disputes in accordance with Article 162(2)(b) of theConstitution and with the provisions of this Act or any other law applicable in Kenya relating to environment and land.(2)In exercise of its jurisdiction under Article 162(2)(b) of theConstitution, the Court shall have power to hear and determine disputes―(a)Relating to environmental planning and protection, climate issues, land use planning, title, tenure, boundaries, rates, rents, valuations, mining, minerals and other natural resources;(b)Relating to compulsory acquisition of land;(c)Relating to land administration and management;(d)Relating to public, private and community land and contracts, choses in action or other instruments granting any enforceable interests in land; and(e)Any other dispute relating to environment and land. [Rev 2012] No 19 of 2011 Environment and Land Court 9 [Issue 1] 62. Therefore, the correct and proper forum before which the parties ought to ventilate their claim to the suit land is the ELC. The Environment and Land Court is the only court exclusively mandated by law to determine the question of ‘ownership’ of the suit land.

63. In Re Estate Of Stone Kathubi Muinde (Deceased) [2016] eKLR Hon Justice William Musyoka held that:-'Such claims to ownership of alleged estate property, as between the estate and a third party, should be resolved through the civil process in a civil suit properly brought before a civil court in accordance with the provisions of the Civil Procedure Act and the Civil Procedure Rules. This could mean filing suit at the magistrates’ courts, or at the Civil or Commercial Divisions of the High Court, or at the Environment and Land Court. If a decree is obtained in such suit in favour of the claimant then such decree should be presented to the probate court in the succession cause so that that court can give effect to it.'

64. In the circumstances this court will not make any determination regarding whether M XXX or M XXXX comprise the estate of the Deceased. These are matters to be canvassed before the Environment and Land Court.

(iv) Whether the Grant ought to be revoked 65. It is common ground that Grant of letters of Administration Intestate was made to the respondent on September 12, 2013. The Objector prays that the said Grant be revoked on grounds that the same was obtained by concealment of material facts.

66. The Law of Revocation of grant is out in Section 76 of the Law of Succession Act as follows:-'76. A grant of representation, whether or not confirmed, may at any time be revoked or annulled if the court decides, either on application by any interested party or of its own motion—(a)That the proceedings to obtain the grant were defective in substance;(b)That the grant was obtained fraudulently by the making of a false statement or by the concealment from the court of something material to the case;(c)That the grant was obtained by means of an untrue allegation of a fact essential in point of law to justify the grant notwithstanding that the allegation was made in ignorance or inadvertently;(d)That the person to whom the grant was made has failed, after due notice and without reasonable cause either—(i)To apply for confirmation of the grant within one year from the date thereof, or such longer period as the court order or allow; or(ii)To proceed diligently with the administration of the estate; or(iii)To produce to the court, within the time prescribed, any such inventory or account of administration as is required by the provisions of paragraphs (e) and (g) of section 83 or has produced any such inventory or account which is false in any material particular; or(e)That the grant has become useless and inoperative through subsequent circumstances.'

67. PW1 IN told the court that when the Deceased married her late mother he took in I from the age of three (3) years and raised her as his own child. The Respondent in her evidence admits that IN is a child of the Deceased whom the Deceased accepted and raised as his own child. Indeed, in the Death Announcement placed in the Sunday Nation Newspaper dated September 16, 2012 the Deceased was stated to be the Father to ‘IN’. ‘I’ was also included as family member in the funeral pragramme prepared by the family. It is clear that the family willfully recognized ‘I’ as child of the Deceased.

68. The said ‘IN’ told the court that despite having full knowledge that she was a child of the Deceased, the Respondent failed to consult and/or include her when petitioning for the Grant of Administration. She laments that -'My grandmother has not shared with me anything from my late father’s estate'.‘I’ therefore prays that the Grant issued to the Respondent be revoked.

69. DW2 who was a brother to the Deceased confirmed that ‘I’ was a daughter to the Deceased. DW2 says –'I know ‘INM'. She is a step-daughter to Deceased. She came into the marriage with her mother. I am not aware if ‘I’ has been given any share of the estate. ‘I’ is entitled to inherit from his estate of his father.'

70. Despite this overwhelming evidence that I was a child of Deceased in the Petition for letters of Administration Intestate the Respondent listed herself as the sole beneficiary of the estate of the Deceased. Despite having knowledge that the Deceased had a child called IN the Respondent deliberately and maliciously failed to include the child in her petition.

71. In her defence the Respondent confirms that she did not include ‘IN’ as a beneficiary in her Petition for Grant of letters of Administration Intestate. She explains that she did not include I in her petition because ‘I’ had by then travelled to Saudi Arabia for work. The fact that one is residing in a foreign country does not mean that one ceases to be a beneficiary of an estate in Kenya.

72. The existence of IN was a material fact which the Respondent deliberately concealed from the court at the time she petitioned for the Grant. The Respondent even went so far as to procure a letter from the Chief dated May 31, 2013 indicating that she was the sole survivor of the Deceased. The Respondent therefore obtained this Grant fraudulently and the same is for Revocation.

Conclusion 73. Finally based on the foregoing I find that this summons for revocation of Grant is merited. Accordingly, this court makes the following orders.

(1)The Grant of letters of Administration Intestate issued to the Respondent ANM be and are hereby revoked.(2)A fresh Grant to issue in the joint names of ANM and INM.(3)The two (2) minors IMM and WMM are to be included as dependants of the Deceased and beneficiaries of his estate.(4)The joint Administrators to file within sixty (60) days a summons for confirmation of Grant indicating the proposed mode of distribution of the estate.(5)This being a family matter each side shall bear its own costs.

DATED IN NAIROBI THIS 11TH DAY OF NOVEMBER, 2022. …………………………………MAUREEN A. ODEROJUDGE