https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12611

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT MIGORI** **CIVIL APPEAL NO. E027 OF 2024** **RUSALINA AKINYI OGOT.............................................................................APPELLANT** **VERSUS** **SYLVESTER OCHOLA OGOT......................................................................RESPONDENT** **(Being an appeal against the Judgment arising from the Principal Magistrate’s Court at Rongo in Succession Cause Number 1 of 2020 before Honourable S.N. Mutava Resident Magistrate delivered on 15th May 2024)** **JUDGMENT** 1. Before this Court is an appeal from the decision of **Hon. S.N. Mutava Resident Magistrate where she dismissed the Appellant’s summons for revocation of grant to the intestate estate of the deceased Wilson Ogot Wao. The trial Magistrate** ordered that the suit property **Kamagambo/Kongudi/437 be maintained as subdivided among the 8 brothers.** 2. The Succession cause herein relates to the estate of the late **WILSON OGOT WAO** (hereinafter the Deceased) who died intestate on **20th April 1986**, leaving behind 8 children and three wives. 3. Following the demise of the deceased, the Respondent **Sylvester Ochola Ogot** sought for and obtained a Grant of Letters of Administration intestate issued on **2011** and confirmed on **3rd October 2013**. Thereafter, the Appellant **RUSALINA AKINYI OGOT** (third wife of the deceased) filed summons for revocation dated 10th December 2019. Vide a ruling dated **16th February 2020**, the first grant was revoked with orders that the three houses do nominate one proposed administrator so that a certificate of grant could be re-issued by the court for purposes of administration and distribution of the estate. 4. **On 25th May 2020**, the court appointed **Sylvester Ochillo Ogot** (first house), Fransisca Owiti (second house) and **Rusalina Akinyi Ogot** (third house) as joint administrators of the Estate of the late **WILSON OGOT WAO** and were issued with grant of representation. 5. The parties were ordered to agree on the mode of distribution but did not reach an agreement by themselves, thus sought the help of the village elder to assist in the distribution. This also did not yield any result. 6. **On 29th November 2022**, the Appellant filed Summons for confirmation of grant which was not signed by all beneficiaries. The Respondent filed an affidavit in protest. 7. The Appellant stated that the estate should be divided into three equal parts amongst the three houses so that her son **Charles Ogot who is not the biological son of the deceased** to get a share of the estate. 8. The Respondent on his part was not agreeable to this. He stated that his father had before his death subdivided the suit property among his eight sons and all of them had established their homes and developed their respective portions. He further contended that sharing the property into three equal parts would deny the rightful beneficiaries their shares of the estate and improperly enrich the 3rd wife (the Appellant) and her third son who was born way after the distribution of the estate and the death of the deceased. 9. **On 14th June 2023**, the trial court noting the battle over the property amongst the administrators referred the parties to Court Annexed Mediation. The parties failed to reach a settlement and the file was sent back to the trial court for further directions. 10. The Protest was heard in the lower court by way of Viva Voce evidence. Vide judgement dated **15th May 2024, Hon. Mutava, Resident Magistrate** ordered that the suit property **Kamagambo/Kongudi/437 be maintained as subdivided among the 8 brothers.** 11. Being aggrieved by the judgement, the Appellant filed this Memorandum of Appeal dated 25th May 2024 premised on the following grounds:- 12. THAT the learned trial magistrate erred in law and in fact in making finding that the appellants son Charles Ochieng was not the biological son, to the late Wilson Ogot and he is not entitled to benefit from the estate reason being he was born after the demise of the deceased. 13. **THAT** the trial magistrate erred in law and if failing to fully analyze the evidence tendered by the appellants herein and giving and due weight to the respondent’s case and least weight to the appellants case. 14. **THAT** the learned trial magistrate erred in law and in fact that she totally failed to take into account the appellant case. 15. **THAT** the learned trial magistrate erred in law and in fact by giving the arguments in favour of the respondent against the appellants sermons for the confirmation of grant present before the honorable court. 16. **THAT** the trial magistrate erred in law and in fact in maintaining the status quo in the suit property when there was no evidence to show that the deceased had divided his land to the eight sons contrary to what was content in the green card which were presented before the trial honorable court. 17. **THAT** the trial magistrate erred in law and in fact in failing to consider the Appellants evidence on record on the succession process. 18. **THAT** the learned trial magistrate erred in law and in fact failing to take into the account the principles of equality before the law in her determination and judgement sighting section of the law which were not relevant to appellants applications at the trial court. 19. **THAT** the learned trial magistrate erred in law and in fact in allowing the eight sons to benefit from the estate and discrimination the one who was born after the deceased death. 20. **THAT** the learned trial magistrate erred in law and in fact in failing to consider the appellants submissions, statements together with the affidavits on record. 21. **THAT** the learned trial magistrate erred in law and in fact by overly relying on the Respondents’ submissions and statements hence resulting to wrong court decisions. 22. **THAT** the learned trial magistrate erred in law and in fact by ignoring all the documents presents by the appellant during and after the succession. REASONS WHEREFORE the Appellant prayed for orders that:- 1. The appeal be allowed 2. The judgment entered in Rongo Succession Cause No.1 of 2020 be set aside 3. That costs of the trial court and appeal be awarded to the Appellant. The appeal was canvassed by way of written submissions. The Appellant filed submissions dated 13th June 2026 whilst the Respondent filed submissions dated 18th June 2026. **ANALYSIS AND DETERMINATION** 1. This is a first appeal and, in this regard, I take cognizance of the holding **In the case of Imanyara & 2 others v Attorney General [2016]KECA 557 (KLR)** in which the Court of Appeal stated as follows:- **“This being a first appeal it is trite law, that this Courtis not bound necessarily to accept the findings of fact by the court below and that an appeal to this Court from a trial by the High Court is by way of retrial and the principles upon which this Court acts in such an appeal is are well settled. Briefly put, they are that this court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect. See Selle and Another v Associated Motor Boat Company Limited and others [1968] EA 123 and Williamson Diamonds Ltd. V. Brown [1970] E.A.L As we discharge our mandate of evaluating the evidence placed before the High Court, we keep in mind what the predecessor of this Court said in Peters -vs- Sunday Post Ltd [1958] EA 424. In its own words:-** **“Whilst an appellate court has jurisdiction to review the evidence to determine whether the conclusions of the trial judge should stand, this jurisdiction is exercised with caution; if there is no evidence to support a particular conclusion, or if it is shown that the trial judge has failed to appreciate the weight or bearing of circumstances admitted or proved, or had plainly gone wrong, the appellate court will not hesitate so to decide.....”** 1. Having carefully considered the grounds of appeal and re-evaluated the record filed on 18th August 2024 as well as analysed the rival s submissions filed by both parties the issues for determination are:- 2. Whether Charles Ochieng was biological son of the deceased and entitled to inherit from the estate of the deceased 3. Whether the Appellant satisfied the court for grant of orders revoking Letters of Administration issued to the Appellant,Respondent and Francisca Ogot. 4. It is not in dispute that that the deceased herein passed away on **20th April 1986.** A copy of the **Death certificate Serial Number** **288284** appears at page 14 of the Record of Appeal. It is also not in contention that at the time of his demise, the deceased had 8 sons and three wives. Not in contention is the fact that before his demise, the deceased had already subdivided the suit property among his 8 sons and all of them had established their respective homes on their respective shares and ironically, this is also the controversy of the matter. 5. The Appellant herein took issues with the manner in which the suit property was distributed by the deceased and confirmed by the trial court. From the record, it is clear that the Appellant was present when the deceased distributed his property among his 8 sons, including 2 of her three sons, and she had no issues with the distribution at that time. 6. She only has issues with the distribution and wanted the earlier wishes of the deceased to be done away with because she had another son, who according to the record and evidence she confirms was not the biological son of the deceased. This notwithstanding, she wants the son born after the demise of the deceased to benefit from the already distributed estate of the deceased. 7. It was the Respondents case that the suit property had been equally redistributed among the 8 sons of the deceased who have already established their homes and developed their portions and that there was nothing left from the estate for distribution to a son who was clearly not the son of the deceased. 8. It was the testimony of the Respondent that redistribution of the estate to accommodate a son born way after the death of the diseased was unfair and against the wishes of the deceased. 9. **On whether Charles Ochieng was a dependant to the deceased, Section 29 of the**[***Law of Succession Act***](https://new.kenyalaw.org/akn/ke/act/1972/14) defines dependency as follows:- a. The wife or wives, or former wife or wives, and the children of the deceased whether or not maintained by the deceased immediately prior to his death; b.) Such of the deceased's parents, step-parents, grandparents, grandchildren, step-children, children whom the deceased had taken into his 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; and c.) Where the deceased was a woman, her husband if he was being maintained by her immediately prior to the date of her death. 1. From the provision of this section, all biological children are the dependents of the deceased and automatic beneficiaries of the estate of the deceased, which they already have. The Appellant together with the Respondents witnesses confirmed that the last child of the Appellant is not the biological son of the deceased and was therefore not a dependant prior to his death. This court will not belabor that fact. The last child of the Appellant does not fall within the category of persons entitled to inherit from the deceased estate under the Law of Succession Act. In the circumstances the child’s exitance does not constitute any legal basis for reopening the distribution of the estate. 2. Section 42 of Succession Act makes provisions for previous benefit from the estate and provides as follows:- **Where—(a)an intestate has, during his lifetime or by will, paid, given or settled any property to or for the benefit of a child, grandchild or house; or** **(b)property has been appointed or awarded to any child or grandchild under the provisions of**[**section 26 or section 35**](https://new.kenyalaw.org/akn/ke/act/1972/14/eng%402022-12-31#section%2026%20or%20section%2035)**,that property shall be taken into account in determining the share of the net intestate estate finally accruing to the child, grandchild or house**. 1. It was the observation of the trial court that all the beneficiaries who appeared before her were elderly and might have already subdivided the property to their children and that confirmation of the grant as drafted on **29th July 2022** would benefit the Appellants illegitimate child at the detriment of the entire extended family. 2. In the case of **Timothy Simiyu Wakapisi Wanjala & 3 others, v John Wachana Wanjala Kimawachi & 3 others, (2014)eKLR**, the court stated that:- “**In my view this Section of the law sought to protect, respect and preserve the wishes and acts executed and undertaken by deceased persons during their lifetime. Such acts or settlements effected are not subject to disruption, change or frustration. There are to honoured and effected”** 1. **In Patrick Munene Mwigi v Simon Nyamu Mwigi (2017) KECA 31 (KLR)**, the court of appeal applied the provisions of section 42 of the Succession Act and affirmed that gifts made by the deceased during his lifetime must be taken into account under section 42 of the Act. 2. The beneficiaries have occupied their respective portions as were settled by the deceased 3 decades ago. The court sees no legal or equitable justification for disturbing that settled position. 3. This court agrees with the trial court that the Appellant is a troublemaker and her application for confirmation of grant was indeed an abuse of the court process and unjust enrichment. If anything, 2 of her sons already have equal shares, they can agree to accommodate their illegitimate brother. 4. The upshot of the foregoing is that the appeal lacks merit and is hereby dismissed with no orders as to cost. 5. It is so ordered. **DATED, SIGNED AND DELIVERED AT MIGORI THIS 9TH JULY 2026.** **ANNE ONGI’NJO** **JUDGE** **In the presence of:** Victor – Court Assistant Calvince – Court Assistant Ms. Appollo Advocate H/B for Mr. Mugwe Advocate for the Appellant Mr. Achola Advocate for the Respondent.