https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11015

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT KISUMU** **HCFA NO. E016 OF 2025** **JULIA ATIENO OJWANG….…………..………..………..APPELLANT** **-VERSUS-** **PETERIS OCHIENG JACKTON…….………….…1ST RESPONDENT** **PATRICK OMONDI GOGO…………….…………..2ND RESPONDENT** **JOHN OJWANG KUNGU………….………………..3RD RESPONDENT** **(Being an Appeal from the Ruling of Hon. Kiniale delivered on the 12th June 2023 in Nyando Succession Cause Number 14 of 2017)** **JUDGMENT** **Introduction** 1. The Appeal emanates from a Grant of Letters of Administration of the Estate of Lazaro Omolo Ogila issued to the Respondents on 7/3/2018 and confirmed on the 29/11/2018. 2. The Appellant filed an Application for Revocation of the Grant on 25/5/2025, claiming that she is a niece to the deceased and that the Respondents were not related to the deceased. The application sought to restrain the Respondents who were the administrators of the Estate of the deceased from interfering with the Applicant’s peaceful stay and occupation of ***Kisumu/Wanyanga 2/2164*** and an order to have the grant issued and confirmed in favor of the Respondents revoked. 3. The Application was heard by way of viva voce evidence where the Administrators testified and called 3 other witnesses while the Objector testified and called one witness. 1. The trial court dismissed the Application for revocation stating that the Appellant had not established that she was the niece of the deceased, and that her claim was based on the fact that her family had been in occupation of the land. The Court had also noted that it appears that the claim was more of a land dispute as opposed to a succession dispute. 1. Dissatisfied with this finding of the trial court, the Appellant has filed the instant Appeal and cited several grounds of Appeal, to wit: - 2. That the learned trial magistrate erred in law and fact in the interpretation and application of Section 76 of the Law of Succession Act by imposing a higher threshold for revocation of grant than required by statute. 3. That the learned trial magistrate erred in relying on unproduced and unverified documentary evidence, particularly the alleged "second chief's letter, contrary to the provisions of Sections 63 and 64 of the Evidence Act. 4. That the learned magistrate misapprehended or failed to properly evaluate the Appellant's evidence on the family tree and degree of consanguinity, thereby arriving at an erroneous finding on the rightful heirs of the deceased. 5. That the learned magistrate erred by failing to appreciate that the grant was obtained through concealment and falsehood. 6. That the learned magistrate erred in treating the matter as a mere land dispute instead of a succession issue involving the lawful heirs and entitlement to the deceased's estate. 7. That the learned magistrate violated the Appellant's right to a fair hearing by failing to consider and address the Appellant's submissions and evidence. 8. The Appellant sought to have the appeal allowed and the grant of letters of Administration issued and confirmed in favour of the Respondents revoked. **Trial Court Evidence** 1. The Objector testified in court and called one witness. She stated that she was the daughter to Andrea Owaga and a step daughter to the deceased herein. She told court that the land in question was given by the deceased to her father in exchange for treatment when the deceased came from Mombasa while very sick. That she does not know whether it was a sale, but she knows that her family has been in occupation of the land even when the deceased was alive. 2. The Appellant claimed that the Respondents had obtained a grant through concealment stating that they were step brothers to the deceased which is not the position. That during the course of the objection proceedings, they obtained another letter from the chief stating that they were nephews to the deceased. 1. She called her witness in support of her case and the witness told court that the land had been sold to Owaga by the deceased and there was a meeting at the chief’s office to discuss this transaction on 27/09/2016. The witness also attempted to explain the family tree of the object, stating that she (objector) was a niece of the deceased. 2. The Respondents on the other hand told court that they were nephews to the deceased. That they are children of Jacton son of Malela and the deceased was also a son of Malela. They denied that the Appellant was a relative and stated that she only comes from the same area with them. 3. The witness told court that the land had a dispute that had been taken to the chief, the allegation being that the deceased had sold it to the father of the Appellant. However, the family of the Appellant is said not to have availed the sale agreement. **Submissions by the Appellant** 1. The Appellant’s case is that she is a niece of the deceased and to prove this, the Appellant submits that there is a family tree of consanguinity. According to the Appellant, the Respondent withheld or concealed the true heirs of the deceased and represented to the court that they were step brothers of the deceased which was not the position. The Appellant submits that a single incident of misrepresentation is enough to have the court revoke a grant. 2. The Appellant submitted that the trial court dismissed the Appellant’s evidence of the relationship without giving any reason and urged the court to consider the relationship and revoke the grant. She faulted the trial court for relying on an application by her brother Caleb, which had been withdrawn. 3. Further, the Appellant faulted the trial Magistrate for relying on a document that was not produced in court, being the second letter of the chief indicating that the Administrators were nephews to the deceased, to support the case by the Respodents. Counsel submitted that the Respondents obtained the letters of administration and had them confirmed on false information and urged the court to revoke the grant. **Respondents Submissions** 1. The Respondent submitted that the Learned Trial Magistrate properly applied and interpreted the provisions of section 76 of the Law of succession Act. That the Respondents pleaded in the Petition that they were step brothers of the deceased instead of nephews of deceased, and acknowledged that this was an error and that when they discovered it, they went back to the chief to rectify it and had the letter dated 10th April, 2023 done to confirm that the Respondents were nephews. That this was a mistake that can be rectified under Section 74 of the Law of Succession Act and that under Section 73 of the LSA, the court had the power to rectify this to meet the ends of justice. 2. The Respondent further submitted that whether as step brothers or as nephews, the Respondents proved on the balance of probability that they were within the degree of consanguinity. 3. Counsel submitted that one Caleb Juma Owaga was the first to file an application for revocation of grant issued to the Respondents, and he sought revocation of the grant issued to the Respondents on the sole ground that his father Andrea Owaga Adel, purchased the property from the deceased and even attached a purported land sale agreement, with no claim of any form relationship with the deceased. That the Applicant herein who is a sister to Caleb, filed the application that is subject of the instant appeal on the ground that she is a niece of the deceased and as such a relative to the deceased. 4. Counsel submitted that the Appellant and her brother have presented two different versions as to why they were seeking revocation of the grant and why their family is claiming land parcel number ***Kisumu/Wangaya 2/2164*** and submitted that the family of Andrea Owaga is on a fishing expedition to wrestle the estate of the deceased from the rightful beneficiaries. 5. He submitted that the Appellant herself made an admission that the deceased gave her father part of his land in exchange to treat his illness and the chief’s letter dated 27/9/2016 at page 43 of the record of Appeal at paragraph 3 shows that the family of Andrea Owaga claimed that they purchased the property from the deceased and then there is a purported land sale agreement between Lazaro Omolo & Andrea Owaga at page 46 of the record of Appeal. 1. On the second letter of the chief, counsel submitted that the chief’s letter dated 10/4/2023 was verified and produced by the Respondents as exhibit. He referred to the Replying Affidavit of Peterlis Ochieng Jackton sworn on 11/4/2013 at page 38-40 of the record of Appeal where the letter is marked as exhibit **“POJ 2”** at paragraph 4 of the Affidavit. He submitted that the proceedings at page 105, line No 2 also shows that the affidavit and annexures thereof were produced in court. **Analysis and Determination** 1. This being a first Appeal, the duty of the court is to approach the whole of the evidence on record from a fresh perspective and with an open mind. As was espoused by the Court of Appeal in the case **of *Selle & Another Vs Associated Motor Boat Co. Ltd &Another (1968) EA 123*,** my duty is to evaluate and re-examine the evidence adduced in the trial court in order to arrive at my own findings. Further, the Appellate court will not normally interfere with a lower court's findings of fact unless the same is founded on wrong principles, misapprehension of evidence or based on no evidence. The court of Appeal in the **Selle** case (supra) held thus: - "A court on appeal will not normally interfere with the finding of fact by a trial court unless it is based on no evidence, or on a misapprehension of the evidence, or the judge is shown demonstrably to have acted on wrong principles in reaching his conclusion,'' 1. This duty was also discussed by the Court of Appeal in ***Kenya Horticultural Exporters Ltd vs Julius Munguti Maweu Civil Appeal No. 9 of 2004*,**where it was held that: - *“On a first appeal the Court has the duty of re-evaluating the evidence, assess it and make its own conclusions without overlooking the conclusions of the trial court and bearing in mind that unlike the trial court it neither saw nor heard the witnesses.* 2. With that in mind, I have considered the Memorandum of Appeal, the rival submissions on the appeal and the record of Appeal. I will frame the following issues for determination: - 1. *Whether the grant herein was obtained fraudulently and in concealment of a material fact – which fact was that the appellant was a niece of the deceased and that the Respondents were nephews and not step brothers of the deceased* 2. *Whether the trial court erred in finding that the second* *letter of the chief had rectified the error in the letter of chief used to obtain the grant of letters of administration.* * 1. *Whether the trial magistrate erred in relying on an application that had been withdrawn by Caleb Owaga and erred in finding that the issue between the parties is that of a land dispute as opposed to succession.* ***Whether the grant herein was obtained fraudulently and in concealment of a material fact – which fact was that the Appellant was a niece to the deceased and that the Respondents were nephews and not step brothers to the deceased.*** 1. On whether or not the Appellant was a niece to the deceased, the evidence adduced in court by the Appellant was a family tree of consanguinity. The Respodents on their part produced in court a different family tree in which they argue that the Appellant is not a relative to the deceased. I have considered both family trees presented to the court together with the evidence adduced in court in totality. 2. Although the Appellant submits that the court should not have interacted with the proceedings that had been withdrawn, the role of the court is always to look at the entire documents and evidence on record. A withdrawn document is admissible in court not as a pleading but as part of the evidence that is available to help the court to make an informed decision. 3. Having looked at the record, the claim by Caleb Owaga who is listed in the family tree of the Appellant as a brother was purely based on a purchase, allegedly done in 1978 or 1979. The affidavit attached to the withdrawn application also indicates that the buyer and seller were cousins, which would mean that although there existed a buyer/seller relationship, there was also likely some blood relationship, but which relationship, this court is not able to particularly point out from the family tree. 1. Be that as it may, there is the second limb of the submissions that the Respondents obtained the grant by giving false information that they were step brothers to the deceased. The Respondents have acknowledged this and submitted that this was an error which they rectified vide the letter of chief dated 10th April 2023. I have had the occasion to consider the said second letter of the chief, that was introduced to the court vide a Replying Affidavit by Peterlis Ochieng Jackton sworn on 11/4/2023. 2. I note that the grant of letters of Administration was issued on 7/3/2018 and confirmed on the 29/11/2018. The grant was issued on the premises that the Respondents were step brothers to the deceased and this is evidenced by the Gazette Notice of 9th February of 2018. As it turns out, this information was not correct. 3. Section 76 of the LSA provides that 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— 1. that the proceedings to obtain the grant were defective in substance; 2. 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; 3. 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; 4. ……….. 5. ………… 4. Clearly the Respondents had made a false statement to the court by presenting a document that indicated that they were stepbrothers to the deceased, which position turns out to be erroneous. 5. Counsel submitted that this is an error that could be corrected under Section 73 of the LSA. Section 73 of the LSA provides that ***“Errors in names and descriptions, or in setting forth time and place of the deceased’s death may be rectified by the court and the grant of representation, whether before or after confirmation, may be altered and*** ***amended accordingly.”*** 1. The error in question does not relate to the name of the deceased, description of the deceased or time and place of his death. The error in question goes to the relationship of the Respondents to the deceased therefore forming the root of the succession and the rights of the survivors under Section 39 (1) of the Law of succession Act. This is therefore an error that cannot be amended. 2. And in any event, the second letter of the chief was only brought to court in response to an application for revocation. The grant herein was confirmed in the year 2018 and the Respondents did nothing to rectify the relationship indicated on the initial papers until they were faced with a revocation application. 3. Indeed, even when the Respondents filled the statutory forms that formed the application for grant, they indicated that they were step brothers to the deceased. The error is not only on the letter of the chief but also in the forms that were filed in court and submitted to the central Registry. 4. In the case of ***Re Estate of Ambutu Mbogori (2018) eKLR Gikonyo J*.** observed as follows; ***“the Petitioner committed other sins; he initiated these proceedings without a letter of introduction from the chief. This letter serves an important purpose in the ascertainment of the deceased,*** ***the dependents as well as properties of the deceased”*** 1. So that this letter of the chief is not just for form, but goes to the substance of the Succession dispute and cannot be amended when a cause has already been gazetted and letters of administration issued and confirmed. The error in the letter vitiates the entire succession cause. In the case of ***Re Estate of Wahome Mwenje alias Peter Mwenje Wahome (2021) eKLR*,** the court held that: - *“…… a single instance of concealment is sufficient to vitiate the grant under Section 76 of the LSA”.* 2. My finding is that the Respodents obtained the grant by making a false representation and even for that reason alone, the grant herein ought to have been revoked. I find that the trial Magistrate erred in failing to find that the Respondents had made a false representation, and under Section 76 of the LSA, this was sufficient to have the grant revoked. ***Whether the trial court erred in finding that the second letter of the chief had rectified the error in the letter of chief used to obtain the grant of letters of administration.*** 1. The second letter of the chief was an annexure in the Replying affidavit sworn by the Peterlis Ochieng Jackton on 11/4/2023. By then, the letters of Administration had been issued and confirmed. The information that went out to the public was that the Respodents were step brothers to the deceased. The second letter was not published to the public, having not been part of the documents sent to the Central registry that is in charge of gazettements of succession causes. In those circumstances, the letter cannot be said to have rectified the earlier letter. 1. I find that the trial Magistrate erred in finding that the latter letter of the chief had rectified the former. ***Whether the trial magistrate erred in relying on an application that had been withdrawn by Caleb Owaga and erred in finding that the issue between the parties is that of a land dispute as opposed to succession.*** 1. It is trite law that a court cannot rely on a withdrawn pleading as the basis for a decision. However, under the Evidence Act, a withdrawn pleading can be used as evidence of an admission of facts. In the instant case, other than the withdrawn application, both the Appellant and the Respondents testified in court. Both tendered evidence on the alleged transaction between the deceased and the father to the Appellant and there is an agreement which was supposed to form the basis of the transaction. So that in as much as the pleading is withdrawn, and therefore cannot be called a valid pleading in law, the same remains evidence. 2. On whether this is a land dispute or a succession cause, this court has not been given sufficient material to determine whether this is a land dispute. But with the documents on record, the land in question is registered in the name of the deceased according to the search certificate attached to the Application for the letters of Administration filed in the trial court, and dated 29th November 2017. 3. That being the case, then the property herein would be part of the estate of the deceased and any claim would need to be canvassed separately from the succession cause. 4. **The upshot of the matter is: -** 1. **The Appeal herein is allowed.** 2. **The Ruling/order delivered by the learned Magistrate on the 12th June 2023 in the trial court is set aside in its entirety.** 3. **The grant of letters of administration issued on 7th March, 2018 and confirmed on the 29th November, 2018 are revoked.** 4. **The administration of the Estate of the late Lazaro Omolo Ogila alias Omolo Ongilo shall start anew as provided under the law.** 5. **Orders Accordingly.** **JUDGMENT** delivered, dated and signed virtually at Nairobi This **17th** day of **July**, 2026. **…………………………..………………** **L. M. WACHIRA** **JUDGE** **In the Presence of:** *Leadys* – Court assistant N/A for the Appellant. Miss Ojwa for the Respondent.