https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1310

Ogolla & another v Maritim (Civil Appeal E077 of 2021) [2026] KECA 1310 (KLR) (10 July 2026) (Judgment) Neutral citation: [2026] KECA 1310 (KLR) Republic of Kenya In the Court of Appeal at Eldoret Civil Appeal E077 of 2021 PM Gachoka, WK Korir & L Ndolo, JJA July 10, 2026 Between Salina Chebichii Ogolla 1st Appellant Emmanuel Kiplagat 2nd Appellant and Joseph Mark Maritim Respondent (Being an appeal from the ruling and orders of the High Court of Kenya at Eldoret (Githinji, J.) dated 7th November 2019 in HC Succession Cause No. 434 of 2014) Judgment 1.This appeal arises from the ruling of Githinji J, delivered on 7th November 2019, in Eldoret High Court Succession Cause No 434 of 2014. The subject of the ruling was an objection raised by the 1st and 2nd appellants, who claimed to be beneficiaries of the estate of the late Kiplamai Arap Letui, but had been left out of the succession proceedings, leading to grant of letters of administration to the respondent, Joseph Mark Maritim. 2.Upon hearing the parties, the learned Judge reached the conclusion that the appellants had failed to prove any relationship with the deceased, and were therefore not entitled to raise an objection in the administration of his estate. It is this decision that prompted the appellants to approach this Court on a first appeal. In their memorandum of appeal dated 28th April 2021, the appellants raise the following grounds of appeal:a.That the learned trial Judge erred in law and fact by finding that the appellants had not proved their case on a balance of probabilities;b.That the learned trial Judge completely misunderstood the facts and principles before him, wrongly analysed them and therefore came to a wrong conclusion;c.That the learned trial Judge erred in law and fact in relying on wrong principles of law to arrive at the decision;d.That the learned trial Judge erred in law and fact in failing to find that the respondent had filed several succession causes over the same estate of the deceased with a view to committing fraud;e.That the learned trial Judge erred in law and fact in failing to find that the appellants and the respondent fall under the same degree of consanguinity, and should have apportioned the estate in equal shares. 3.When the appeal came up for hearing on 12th May 2026, the appellants had not filed submissions. Learned counsel, Ms. Wambani holding brief for Ms. Kigen on record for the appellants, gave an unverified statement from the bar that the appellants’ counsel had not been mapped on the case tracking system. Ms. Wambani chose to rely on the record of appeal, without any oral highlights. 4.On his part, learned counsel, Mr. Kipkosgei Choge for the respondent relied on his written submissions dated 5th May 2026. 5.This is a first appeal and the guiding principles in adjudicating such an appeal were laid out in the decision of this Court in Abok James Odera t/a A.J. Odera & Associates vs. Patrick Machira t/a Machira & Co. Advocates [2013] eKLR as follows:“This being a first appeal, we are reminded of our primary role as a first appellate court namely, to re-evaluate, re-assess and re- analyse the extracts on the record and then determine whether the conclusions reached by the learned trial Judge are to stand or not and give reasons either way.” 6.We have carefully considered the record of appeal, the submissions and the authorities that have been filed. We note that the appeal raises one issue: whether the learned Judge was wrong in holding that the appellants had not established that they were entitled to be beneficiaries and that therefore, they had no right to raise an objection in the succession proceedings. 7.The appellants’ application before the High Court was brought under section 76 of the Law of Succession Act, which provides for revocation or annulment of a grant, in the following terms:76.Revocation or annulment of grantA 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; orii.to proceed diligently with the administration of the estate; oriii.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; ore.that the grant has become useless and inoperative through subsequent circumstances. 8.The appellants based their objection before the High Court on the averment that they were beneficiaries of the estate of the deceased but had wrongly been left out of its administration. The appellants went as far as accusing the respondent of fraud. In attempting to trace their kinship to the deceased, the appellants stated that the 1st appellant, Salina Chebichii Ogolla was a daughter in law while the 2nd appellant, Emmanuel Kiplagat was a grandson. However, neither the husband of the 1st appellant nor the parents of the 2nd appellant, were disclosed. Significantly, the 2nd appellant’s national identity card, which was produced at the High Court, did not in any way link the 2nd appellant to the deceased. 9.In his ruling, which is the subject of this appeal, the learned Judge stated the following:“…The 1st objector claims she was a daughter in law to the deceased. The question that arises is who she was married to? There is no documentary evidence that she was married to anyone related to the deceased…The second applicant claims to be a grandson to the deceased and the proof of the relationship is the identification card. I find that the same is not sufficient proof that there exists a relationship between himself and the deceased. He does not disclose his parents and therefore the court is unable to determine his relationship to the deceased.” 10.Section 39 of the Law of Succession Act provides for devolution of the estate of an intestate with no surviving spouse or children as follows:1.Where an intestate has left no surviving spouse or children, the net estate shall devolve upon the kindred of the intestate in the following order of priority:a.Father; or if deadb.Mother; or if deadc.Brothers and sisters, and any child or children of deceased brothers and sisters, in equal shares; or if noned.Half-brothers and half-sisters and any child or children of deceased half-brothers and half-sisters, in equal shares; or if nonee.The relatives who are in the nearest degree of consanguinity up to and including the sixth degree, in equal shares. 11.It is trite that for one to benefit from the estate of a deceased, a relationship must be established as per the Succession Act. That is what the appellants were required to do. Had the appellants proved their kinship with the deceased, they would have been beneficiaries of his estate under the foregoing provision. We have carefully perused the record and just like the trial court, we are satisfied that they did not establish any kinship link with the deceased and were therefore strangers. With specific reference to the 2nd appellant, who claimed to be a grandchild of the deceased, his claim ought to have been accompanied by proof of dependant support by the deceased, prior to his death. 12.Ultimately, we find no evidence to support the claim by the appellants that they were beneficiaries of the estate of the deceased. We therefore agree with the finding by the learned Judge that the appellants were strangers who had no capacity to raise an objection on the administration of the estate of the deceased. 13.In warding off the allegations of fraud levelled by the appellants, the respondent, in his submissions dated 5th May 2026, relied on the decision in Vijay Morjaria vs. Nansingh Madhusingh Darbar & Another [2000] KECA 223 where this Court stated the following:“It is well established that fraud must be specifically pleaded and that particulars of the fraud alleged must be stated on the face of the pleading. The acts alleged to be fraudulent must of course be set out, and then it should be stated that these acts were done fraudulently. It is also settled law that fraudulent conduct must be distinctly alleged and as distinctly proved, and it is not allowable to leave fraud to be inferred from the facts.” 14.In advancing their allegations of fraud against the respondent, the appellants cited a number of other succession causes, which they claimed were related to the estate of the deceased. Again, no evidence was adduced to support this allegation. In any event, multiplicity of suits per se, cannot be used as proof of fraud. No particulars of fraud were pleaded and none were proved. This ground, therefore fails. 15.Finally, we find that the appellants failed to prove any of their grounds of appeal and the appeal has no merit. Accordingly, the appeal is dismissed with costs to the respondent. DATED AND DELIVERED AT ELDORET THIS 10TH DAY OF JULY, 2026.M. GACHOKA C.Arb, FCIArb............................JUDGE OF APPEALW. KORIR............................JUDGE OF APPEALL.M. NDOLO............................JUDGE OF APPEALI certify that this is a true copy of the original.DEPUTY REGISTRAR