https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12556

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT KAJIADO** **PROBATE AND ADMINISTRATION CAUSE E009 OF 2020** **IN THE MATTER OF ESTATE OF SIMEL OLE MATAEN MINIK ALIAS SIMEL OLE MATAEN (DECEASED)** **SYLVIA MALILAU SIMEL…………...………..……………...APPLICANT** **versus** **STEPHEN PARSAIT SIMEL………........ADMINISTRATOR/RESPONDENT** **AND** **GEORGE KIKASE………….……………...…….1ST INTERESTED PARTY** **DANIEL SEKENOI……...……………………...2ND INTERESTED PARTY** **TOBIKO OLE MEELI NINI…………………….3RD INTERESTED PARTY** **JAMES PARSIRA TOTO…. …………………...4TH INTERESTED PARTY** **DAVID MATAYEN SEKOYO…………………..5TH INTERESTED PARTY** **BENJAMIN KETUTA………….………………..6TH INTERESTED PARTY** **SAKIMBA OLE PARSAOTI………………...7TH INTERESTED PARTY STEPHEN MOINKET MEELI………………8TH INTERESTED PARTY GEORGE LEKOKO PARSAOTI……………9TH INTERESTED PARTY MARGARET TOTO KILUKEI ………………..10TH INTERESTED PARTY** **RULING** 1. This ruling relates to two summons, the first, dated 29.03.2022 and the second dated 8.11.2022 which, for ease of reference will hereafter be referred to as the first and second summons, respectively. This succession cause concerns the estate of the late **Simel Ole Mataen Minik alias Simel Ole Mataen** (hereafter the deceased) who died intestate on 1.07.2005. About 15 years after his death, the sole surviving son of the deceased, **Stephen Parsait Simel** (hereafter the Respondent), successfully petitioned for a grant of letters of administration intestate, which was issued by this court on 28th June 2021, appointing the said petitioner as the sole administrator of the estate. 2. However, before the grant could be confirmed, **Sylvia Malilau Simel** (hereafter the Applicant) moved the Court by way of the first summons brought under Section 66(1) and 76 of the Law of Succession Act and Rule 44(1), Rule 73(i) of the Probate and Administration Rules. Seeking that the grant issued to the Respondent be revoked and that subsequent to revocation, a fresh grant be jointly issued to **Sebeiyan Ene Simel** (now deceased)and the Applicant, both named as the widows of the deceased. 3. The first summons was supported by the affidavit sworn by the Applicant on 29.03.2022. The Applicant contended that she was the deceased's second wife, married under Maasai customary law and co-wife to the first wife of the deceased, **Sebeiyan Ene Simel** (deceased). She averred that the impugned grant was obtained through concealment of material facts, in particular the existence of her household, comprising herself and her three children with the deceased, namely, **Diana Mopian Simel**, **Neema Mataiko Simel** and **Sharon Nakaet Simel**. 4. She further asserted that the Respondent had through fraudulent misrepresentation secretly petitioned for letters of administration without her knowledge, involvement, or consent, and without including her or her children as beneficiaries and hence misled the court into believing the deceased had only one wife and household. 5. Additionally, she disposed that the Respondent had improperly accepted a compensation offer from Kenya Electricity Company Ltd **(KETRACO)** in August 2021 and executed a wayleave agreement in favour of **KETRACO** on 14th October 2021 in respect of the estate asset, namely, land parcel **No**. **Kajiado/Kaputiei-North/4627** where the entire family resides. Thereby exposing the estate to financial loss. She averred that the grant to the Respondent ought to be revoked and a fresh one issued to herself and **Sebeiyan Ene Simel,** as the widows of the deceased who were more suitable persons to faithfully administer the estate. 6. Through his replying affidavit dated 4.08.2022, the Respondent disputed that the Applicant was the deceased’s widow and stated that he was the eldest son of the deceased; that the Applicant was brought to the family home in 1998 as a house help through an arrangement by her grandfather, who was acquainted with the deceased; that the Applicant, then a minor, was already pregnant; and that the family accommodated her temporarily out of goodwill pending delivery and a decision by her own family on her future. He denied that the deceased married the Applicant, or that any customary marriage ceremony was ever performed, and that the deceased had no intention of taking another wife, as his mother was alive and well throughout the deceased's lifetime. 7. Stating further that, because the Applicant's family abandoned her, the deceased made attempts to return her to her home, and before his death in 2005, had left instructions to that effect with his brother one **Sekoyo Minik,** who in2007, prepared cattle as a gesture of goodwill to facilitate her return. However, the Applicant refused to leave, instead proceeding to occupy a portion of the deceased's land in collusion with the Interested Parties herein, including the 2nd Interested Party who is the local Assistant Chief. 8. Challenging the Applicant's assertion that the deceased sired her children, the deponent contended that two of the children were born after the death of the deceased, as evidenced by their birth certificates. He asserted that the Applicant was at the time of the swearing her affidavit in cohabitation with one **George Kikase,** the 1st Interested Party, whom the deponent believed to be the true father of the Applicant's children. 9. Reiterating that the Applicant was a stranger to the estate, being neither wife, dependent, or beneficiary of the deceased, and therefore not entitled to any share of the estate, he prayed that the first summons be dismissed with costs. 10. By her supplementary affidavit dated 12.09.2022, the Applicant reiterated her earlier depositions and stated that the deceased had personally sought her hand in marriage; that all customary requirements were fulfilled before the marriage to the deceased which was conducted in accordance with Maasai customs and traditions and; that thereafter she cohabited with the deceased as husband and wife until his death. Hence, allegations suggesting otherwise were false, malicious, and intended to deny her and her children their rightful claim to the estate. 11. In support of the foregoing assertions, the Applicant annexed several photographs depicting the customary marriage ceremony involving herself and the deceased. And asserting that her children, including **Diana Mopian**, were accepted and raised within the family home, without any objection being raised in the lifetime of the deceased, she stated that under Maasai custom children born and raised in a man's household are regarded as members of that family. 12. Disputing allegations that she left the matrimonial homestead voluntarily, the deponent averred that following the death of the deceased, members of the first house became hostile towards her and eventually compelled her to leave the family homestead. However, following intervention by family elders and clan members, it was ultimately agreed that she relocate to another estate property where she has continued to reside and undertake developments as shown in photographs exhibited in her affidavit together with a copy of her national identity card. Finally, accusing the members of the first house of attempts to disinherit her and her children, she urged the Court to recognize her status as a lawful widow of the deceased. 13. The second summons was brought by the Respondent pursuant to Section 47 of the Law of Succession Act and Rule 49 of the Probate and Administration Rules. The summons contained inter alia prayers seeking interim injunctive orders against the Interested Parties who were said to have trespassed onto the property of the estate with the connivance of the Applicant. Those prayers are spent. 14. The live prayers in the second summons are no.s 3, 5 and 6, essentially seeking to restrain the Applicant and the 10 Interested Parties, pending determination of the cause, from trespassing onto, leasing or committing any acts of waste in respect of the estate asset described as **LR. No. Kajiado/Kaputiei-North/4627**; an order for the exhumation of the remains of the deceased for purposes of collection of his DNA samples; and that the Applicant’s daughter **Diana Mopian** be subjected to a DNA test to establish her paternity in respect of the deceased, and the resultant report be filed into court. 15. The second summons was supported on the grounds on its face as amplified in the affidavit sworn by the Respondent. As concerns the live prayers in the second summons the affidavit is to the effect that the Interested Parties had trespassed onto the estate land with the connivance and abetment of the Applicant and the 10th Interested Party, to graze cattle and commit waste on the property, and in addition some illegal fencing demarcating some portions of the land has been put up. 16. Further, that the Applicant having alleged that **Diana Mopian** is a biological child of the deceased, it was imperative that the remains of the deceased be exhumed to obtain his DNA samples for comparison with DNA samples from **Diana Mopian** for purposes of establishing paternity. Hence, assist the court in conclusively determining the issue of paternity and to enable the succession cause to proceed to its logical conclusion. 17. In opposing the second summons, the Applicant swore a replying affidavit dated 9.11.2023 chiefly to the effect that the summons was misconceived and intended to divert the Court from the real issues in dispute. She described the ten Interested Parties as her neighbour, area chief, father, brother to 10th Interested Party, two maternal cousins to the Respondent, brother to the deceased’s first wife, the Applicant’s own first cousin, and wife to the deceased’s son, respectively. 18. And asserted that most of them have been unnecessarily joined in the cause because they had supported her as the deceased’s widow and had participated in sessions aimed at mediating between the Respondent’s family and herself in the past, and for their refusal to support the Respondent’s efforts to exclude her as a beneficiary of the estate. 19. In opposing the prayer for exhumation and DNA testing, the Applicant denied that she was pregnant at the time she married the deceased, and stated that her daughter, **Diana Mopian**, was born during her marriage to the deceased on 11th July 1999. Here citing details of the child’s birth certificate identifying the deceased as her father, a matter which the deceased never disputed in his lifetime. 20. She described the request for exhumation as unreasonable, unnecessary, and unsupported by sufficient grounds, more so as the deceased passed away many years ago. Adding that exhumation would offend Maasai customs and beliefs regarding the dead and that the Respondent's true intention is to torment and harass her by disturbing her late husband’s remains. Besides, entitlement to benefit from the estate is governed by the law of succession and not based on biological parentage. And accusing the Respondent of being driven by greed, urged the Court to dismiss the application. 21. **(George) Kikase Ole Ntiyione**, the 1st Interested Party, opposed the second summons and denied allegations of trespass while stating concerning the issue of paternity and the proposed DNA testing, that the deceased married the Applicant in 1998 and that Diana Mopian was born on 11th July 1999 during the subsistence of that marriage. As a neighbour of the deceased, he avers that he observed the deceased raise and maintain Diana as his child throughout his lifetime and never heard him deny paternity. His view is that exhumation and DNA testing were unnecessary and not only contrary to Maasai customs, but also amount to taboo and a curse against a deceased elder who died peacefully. 22. The deponent detailed his participation in numerous family meetings convened to resolve the succession dispute and that during those meetings, concerns were raised that the intention of the Respondent and his mother was to disinherit other family members, particularly the Applicant and **Margaret Kilukiei** (10th Interested Party). He accused the Respondent of being motivated by greed and a desire to inherit the entire estate to the exclusion of others. 23. On his part, **Daniel Sanoe Sekenoi**, the 2nd Interested Party and Assistant Chief of Ilpolosat Location, by his replying affidavit opposed the second summons and asserted that he had served at Ilpolosat since 1996. Therefore was well acquainted with the deceased’s family, including the Respondent, the Applicant, and most of the Interested Parties, all of whom reside within his area of jurisdiction. And that as the author of the Chief’s introduction letter dated 22nd January 2021 identifying the beneficiaries of the deceased’s estate, he was well informed about the family of the deceased and succession dispute concerning the estate. 24. Asserting that he knew the deceased personally long before becoming Chief, he recalled attending the marriage ceremony between the deceased and the Applicant in 1998; that during the deceased’s lifetime no member of the first house ever objected to the Applicant’s marriage to the deceased and; that the deceased’s first wife, **Sebeyian Ene Simel,** was among those who welcomed the Applicant into the family. According to him, the succession dispute started when the Respondent and members of the first house allegedly began harassing the Applicant, prompting clan elders to intervene and eventually recommending that the Applicant relocate to her own homestead to ease tensions within the family. 25. However, disputes concerning the estate became more intense when the estate property was earmarked for compensation arising from a KETRACO wayleave project. Whereupon the Respondent and his siblings intensified efforts to evict the Applicant from the estate with the deceased’s first wife repeatedly requesting him, in his capacity as Chief, to issue a letter excluding the Applicant and her children from the list of beneficiaries, a request he declined. Whereupon the Respondent instituted proceedings seeking to compel him to alter the Chief’s introduction letter, which he views as part of a campaign aimed at denying a section of the deceased’s family their due inheritance. 26. The deponent also denied allegations that he trespassed onto the estate, and regarding the issue of paternity and the proposed exhumation, stated that the deceased married the Applicant in 1998 and that Diana Mopian was born on 11th July 1999 during the subsistence of that marriage. And that as Area Chief, he never heard the deceased deny or disown any of his children, hence the request for exhumation and DNA testing was unnecessary, and deeply offensive to Maasai customs and traditions. In his view, exhuming the remains of a respected elder who died peacefully would amount to a taboo and would cause needless anguish to the family without serving any meaningful purpose. 27. The deponent detailed his own participation in numerous family meetings concerning the succession dispute and asserted that the consistent position of local elders had been that it would be unjust, unfair, and contrary to accepted moral values to disinherit the Applicant . He believes that he had been drawn into the proceedings for this stand, and accused the Respondent of being motivated by greed and a desire to inherit the entire estate. 28. On his part, **Tobiko Ole Meeli Nini**, the 3rd Interested Party and father of the Applicant by his replying affidavit dated 14.11. 2023, opposed the second summons. And asserting to be well acquainted with the facts of the dispute, he averred that the deceased approached him through his friend **Ole Kopejo** in 1998, seeking the Applicant’s hand in marriage under Maasai customary law. 29. According to him, the deceased’s request was accepted after the initial formal ceremony of identification of the intended bride called *esirare* and attended by the deceased’s first wife Sebeiyanene Simel (deceased); which was followed by the *enkaputi* ceremony involving dowry negotiations where dowry was agreed at six heads of cattle which the deceased paid in full before traditional wedding ceremony; and that this was followed by the departure of the Applicant and the deceased and commencement of their cohabitation in the deceased’s home. 30. He stated that throughout the deceased’s lifetime, the couple lived openly as man and wife, the marriage being fully recognized by both families and the community, and that denials concerning the Applicant’s status as a wife to the deceased only arose after the deceased’s death. He further denied allegations that he had trespassed onto the deceased’s property, asserting that he owned sufficient land for his livestock. 31. On the question of the paternity of the Applicant’s children and the proposed exhumation of the deceased’s remains, the 3rd Interested Party, reiterated that the deceased married the Applicant in 1998 and that her children, including **Diana Mopian,** were born and raised within the deceased’s household. Adding that under Maasai customary law, children born in a man’s home were regarded as his children and moreover, Diana’s status as the deceased’s child had not been disputed during the deceased’s lifetime. In his view, the proposed exhumation and DNA testing were unnecessary and motivated by an intention to torment the family rather than genuine resolution of the dispute. 32. The deponent further stated that he had participated in numerous family meetings convened to resolve the succession dispute, the consensus among elders consistently being that the Applicant should not be disinherited. He contends that the Applicant is motivated by greed and seeks to inherit the entire estate to the exclusion of other beneficiaries. 33. **Sakimpa Ole Parsaoti**, the 7th Interested Party, also filed a replying affidavit dated 14.11.2023. Introducing himself as a brother to **Sebeyian Ene Simel,** the first wife of the deceased, and therefore an uncle to the Respondent, he deposed that he personally knew the Applicant as the second wife of the deceased, having been married to him under Maasai customary law. 34. The deponent categorically denied accusations that he trespassed onto the deceased’s property known as **Kajiado/Kaputiei-North/4627**, and regarding the contested paternity and proposed exhumation, stated that the deceased married the Applicant in 1998 and their daughter, **Diana Mopian,** was born on 11th July 1999 during the subsistence of that marriage, a matter never disputed by the deceased. He views the application for exhumation of the deceased’s remains for DNA paternity testing as unprecedented, unnecessary and serving no purpose other than causing suffering to the family. Adding that exhumation is contrary to Maasai customs and traditions and amounts to a taboo against a deceased elder who died peacefully. 35. He too asserted his involvement in numerous family meetings convened to resolve the dispute concerning the deceased’s estate and accuses the Respondent of being motivated by greed and a desire to inherit the entire estate to the exclusion of others. 36. In his replying affidavit, **George Lekoko Parsaoti**, the 9th Interested Party, also a brother to the late **Sebeyian Ene Simel**, the first wife of the deceased, and uncle to the Respondent deposed that he knew the Applicant as the second wife of the deceased, having been married to him under Maasai customary law. Disputing allegations of trespass on estate property as levelled against him and the proposed DNA testing, the deponent stated that the deceased married the Applicant in 1998 and that Diana Mopian was born on 11th July 1999 during the subsistence of that marriage and the deceased never disowned her in his lifetime. In his view, the prayer seeking exhumation and DNA testing is unprecedented, and unnecessary. According to him, such an order would only serve to torment the family and would be contrary to Maasai customs and traditions. 37. The deponent asserted his participation in numerous family meetings aimed at resolving the succession dispute and that the consensus among family elders was that it would be unjust and contrary to accepted values to disinherit the Applicant. And averred that his stand on the dispute was the real reason why the Respondent, whom he asserts was motivated by greed, had involved him in these proceedings. 38. **Margaret Toto Kilukei**, the 10th Interested Party, by her replying affidavit dated 29.05.2024, described herself as the daughter-in-law of the deceased, having been married under the African Christian Marriage and Divorce Act on 6th May 2006 at Ilpolosat Full Gospel Church, to **Wilson Kilukei Simel** (now deceased) the deceased‘s son by his first wife, per the exhibited copy of marriage certificate. Whereas the Respondent was her brother-in-law. 39. She deposed that immediately after her marriage she moved into the family homestead situated on **Land Parcel No. Kajiado/Kaputiei-North/4627,** where the couple cohabited, residing in a house developed by her husband, until his death on 21st November 2008. And was survived by herself and their daughter **Abigael Sempaian**, born on 22nd March 2007. According to her, she has continued to occupy the said residence as an integral member of the deceased’s family and has actively participated in family affairs throughout the years. She disputed that she is a trespasser on the said property, and asserted that since 2020, the Respondent exhibited hostility towards her and her daughter in an attempt to deny their respective status as the widow and child of a deceased beneficiary. 40. To the response by the 10th Interested Party, the Respondent swore a further affidavit dated 10.03.2025 in which he acknowledged that the said Interested Party had indeed been married to his late brother **Wilson Kilukei Simel** and that the marriage produced one issue, **Abigael Sempaian**. Adding, however, that after Wilson’s death, the 10th Interested Party having allegedly remarried one **Stephen Moinket Meeli,** demolished and abandoned her matrimonial home and commenced cohabitation with her new husband at his home and had two children with him. 41. Hence the said Interested Party having ceased to be a daughter-in-law of the deceased forfeited her right to inheritance, and only her daughter Abigael, already recognized and included among the beneficiaries of the estate remained as a member of the family. Photographs said to depict the remains of the demolished house were exhibited. **Applicant’s Evidence** 1. On 12.03.2025, the court ordered that the two summons be heard together through *viva voce* evidence, with the hearing proceeding by way of witnesses adopting their affidavits and being cross-examined. 2. Testifying as **PW1,** the Applicant adopted her affidavit and supplementary affidavit dated 29.03.2022 15.9.2022, respectively and the affidavit in opposition to the second summons sworn on 10.11.2023, as her evidence. Following objections by the Respondent’s counsel to the production of the copies of photographs referred to at paragraph 7 to 14 of the supplementary affidavit, the said photographs were marked **MFI1** and the witness identified the people present therein as herself dressed in a white dress, her own father, and uncle, **Kobejo** all taken at her home. When subsequently recalled by consent, she produced the original hard copy 16 photographs (**Exh.2**). Referring to photographs in her further documents filed on 08.05. 2023 the Applicant stated that they captured events on her wedding day, when she left her home to the new home of the deceased at Ilpolosat and was received by women including the deceased’s first wife. 3. During cross-examination she stated that she was illiterate and could not recall the date of the wedding which happened a long time ago. Asserting her age to be about 40 years, she said her first child was probably 25 years old, but she did not know her exact age or whether she was herself expectant at the time of the marriage ceremony; that she was of age and was not compelled to marry; that she initially occupied the same house as her co-wife because her husband was an old man with children older than her and did not build her a house . She stated that several people attended the wedding including children of the deceased **Mwende** and **Metian**. 4. Stating that the Respondent did not involve her in the administration process, she identified a chief’s letter containing her name and the names of her children. She referred to photographs marked **MFI-1** taken by her neighbour **Tom Tajeu** showing her arrival at her husband’s home, with elders blessing her at the entrance adding that the wedding ceremony took place at her father’s homestead. 5. Concerning the photographs marked **SM 2(a) - (d)** she said they were taken on different dates in her home while she was tending livestock and that some photographs were taken as recently as 2025. She stated that at the time of the death of the deceased she had one child, **Diana Mopian**, but others born thereafter were not the deceased’s biological children. She denied being pregnant before her wedding 6. Describing the 1st Interested Party as her neighbour, she denied that she was married to him after the death of the deceased. Adding that the 10th Interested Party, her late husband **Wilson Kilukei Simel** and herself had occupied the same piece of land belonging to the deceased, and that after the death of **Wilson**, the 10th Interested Party had remained in occupation, and denied that the 10th Interested Party had remarried. 7. During re-examination, the Applicant reiterated that she had no child when she married the deceased and that **Diana Mopian**, her first-born, was born after she settled in the homestead of the deceased. Further disputing that she was forced into marriage she testified that the children of the deceased, including **Mwende** and **Metian** and others, attended the wedding ceremony. Adding that she was not aware that any of the children of the deceased opposed the marriage, she confirmed that the chief’s letter contained her name and those of her children, including those born after the deceased had died who all bear his name. 8. The 7th Interested Party **(PW2)** stated that the first wife of the deceased was his eldest sister and that the Applicant was the second wife of the deceased. Shown the wedding photo **SMS 19(f)** he identified the 3 people therein as the deceased, the Applicant and his own deceased sister who was the first wife of **Simel** (deceased herein). 9. He reiterated during cross examination by counsel for the Respondent , that he was involved in the wedding though she did not appear in the photographs; that he did not remember the date of the wedding; that he was not involved in taking care of the deceased’s homestead; that the Masaai wedding involved several stages including initial visits by the elders and that he only participated in the wedding and not initial ceremonies; and that he was motivated to testify because of the unfair treatment of the Applicant. 10. Under cross- examination by counsel for the 10th Interested Party, the witness stated that **Wilson Kilukei Simel** was his nephew and was married to 10th Interested Party and cohabited on the deceased’s land where the 10th Interested Party remained to date; and that he was unaware that she had remarried. 11. He reiterated his testimony during re-examination adding that he was pained by the eviction of the Applicant; that although he attended the wedding between the Applicant and the deceased, he was not included in photographs taken thereat, or involved in earlier rites, because, as in-laws hailing from a different clan, his family were not involved by the deceased. 12. As for the 2nd Interested Party, (**PW3**) the senior assistant chief Ilpolosat sub- location, he adopted his affidavit sworn on 14/11/2023. He stated that he has worked at Ilpolosat as chief for 20 years and confirmed that the deceased was a resident of his area of jurisdiction. He confirmed writing the introductory letter dated 22/1/2021, and stated that the deceased had two wives and children; that he attended the wedding of the deceased and the Applicant adding that the photo **SMS 1a**, showed the deceased in a red tie, the Applicant, one Kobejo and the Applicant’s father **Tobiko** (3rd Interested Party) as the couple left the Applicant’s home while the photo **SMS 1e** reflected several women from Ilpolosat including the wife of the deceased, his brother, one **Sekoyo Minik** all at the homestead of the deceased. Adding that he had not presided over any dispute regarding the status of the Applicant as wife of the deceased who he said had two wives. 13. Answering questions from counsel for the 10th Interested Party, he confirmed that his introductory letter included **Wilson Kilukei Simel**, late husband of the 10th Interested Party the two having wed in church and cohabited on the deceased’s land, and further denying that the 10th Interested Party had remarried, he said she had continued to live on the estate land. 14. Under- cross examination by counsel for the Respondent, **PW3** he said he had executed his affidavit at the offices of the Applicant’s counsel; that he knew all the deceased’s children and admitted that the Respondent was excluded in his letter but not deliberately and that he wrote the letter upon court orders; that although he attended the wedding he was not involved in pre-nuptial rites; that he was not related to the Applicant; that he knew the 10th Respondent’s husband who died long ago but not any children born after his death; and that he did not author the letter cited in the official land search dated 16.10.2020 on record in support of lodging a caution on the suit property . 15. During re-examination he denied knowing all the names of the children of the deceased’s first wife, adding that the names in his letter were supplied by the advocates for the Petitioner; that he was not reluctant to write the introductory letter; that he was not involved in initial pre-wedding customary rites, and explaining the contents of the official search, stated it only showed the Applicant’s (the cautioner’s) address as care of the chief, not that the chief wrote a letter in support of the caution. 16. The sum total of the evidence of **Lemaiyan Leminik Ole Mataen (PW4),** a resident at Ilkiushin and brother of the deceased, the deceased had 2 wives and therefore, the Respondent, **Stephen Parsoit Simel** was like a son to him; that he attended the wedding ceremony having earlier attended negotiations on the previous day and that the dowry including six head of cattle were delivered to the Applicant’s home on the eve of the wedding; that the Applicant had one child prior to the death of the deceased and having initially shared a house with the first wife, the Applicant had moved to her own house constructed for her in the matrimonial home . 17. The witness stated that the 10th Respondent was the wife of the deceased's son **Wilson Kilukei**; that the couple resided on the deceased land, and that at the time Wilson Kilukei died, the couple had one child; and that his widow had continued to live on the land and had not remarried. 18. **Tobiko Ole Meeli Nini**, the 3rd Interested Party, (**PW5)** the father of the Applicant adopted his affidavit sworn on 14.11.2023 as his evidence-in-chief, the gist of which is as follows. In August 1998 his older brother **Ole Kobejo** relayed to him the request from his friend, the deceased, seeking to marry the Applicant; that he was agreeable and while the Applicant initially showed reluctance, she accepted the proposal after advice by elderly women. 19. He narrated that subsequently the *esirare* ceremony for the identification of the proposed bride was arranged by the deceased, and was followed by dowry negotiation known as *enkaputi* where the dowry was agreed at six heads of cattle, paid subsequently by the deceased, all in fulfilment of Maasai custom, following which a date for the wedding ceremony was set. And after the wedding ceremony, the Applicant left home and commenced cohabitation with the deceased. Stating that the Applicant had no child at the time and that all her children were born in the deceased’s home, he disputed allegations that the Applicant was merely a house help to the family of the deceased. 20. During cross examination he stated that in Maasai culture a 2nd wife resides where her husband decides, her own house or the first wife’s house; that the family of the deceased had visited his home three times prior to the wedding bringing gifts during the introduction, in preparation for the dowry negotiations which involved elders and eventual payment of dowry by the deceased, and that photographs were taken during the final rites on the eve of the wedding ceremony. He confirmed receipt of six heads of cattle as dowry in accordance with Maasai custom as the marriage between the Applicant and deceased was customary. 21. The evidence by the **10th interested Party** **Margaret Tiwai** **(Toto)** (**PW6**) was that she wed the deceased’s son Wilson Kilukei Simel on 6.05.2006 under the African Christian Marriage and Divorce Act . She thereafter cohabited with the said husband in a home he built on the deceased’s land, and that despite the collapse of that house and death of her husband, she had continued living at the same property where his remains were also interred; that she never remarried despite giving birth to other children, besides her first daughter Abigael Sempayian with her deceased husband, after his death, according to Maasai culture. 22. During cross-examination by counsel for the Applicant and the Respondent she confirmed that she married into the deceased’s family after the death of the deceased whom she knew well as a father with three sons and two wives including the Applicant and that since 2006 to 2020 had never heard anyone dispute the Applicant’s status. She further stated that after the death of her husband in 2008, she bore two children, namely, **CSK** and **FKK** but she could neither identify who their biological fathers nor got married to any of them, further denying a romantic relationship with one **Stephen Moinket Meeli** (the 8th Interested Party). 23. **Pastor Tom Tajeu Reureu (PW7)** a driver at Leshau Primary school, a photographer and pastor at Baptist Church Leijani testified that he resides at Ilpolosat. He identified photographs marked 1-16 which he said he took at the wedding of the deceased and the Applicant, and others in 2022, all which were described in his statement, and which he produced as **Exh. 1(i) A and Exh. 1(i) B**. He described as true copies the copies of photographic material annexed to the Applicant’s respective affidavits and the original hard copies produced by the Applicant as **Exh.2**. He stated that he used a manual camera in taking the wedding photographs. 24. **PW7** was subjected to lengthy cross-examination by counsel for the Respondent. He stated that he was sixty (60) years old and started photography in class six; that the Applicant was his neighbour and while he knew **George Kikase (1st Interested Party)** in the same capacity, he did not know **Stephen Moinket**; that he took the wedding photographs identified on a Saturday in the year 2008 at the invitation of the deceased with whom he travelled on the previous day to the home of the bride, the Applicant, in the company of others including the best man **Lesauti** and one **Keranto**. 25. He described the persons in the photographs confirming that the Respondent was not present, gave a narration of the moments captured in the photos shown him and confirmed having retained the film as the initial photos were taken on a manual camera, whereas the 2023 photos were taken at the home of the Applicant after the death of the deceased on a modern camera. 26. He recalled that he personally took all the photographs during the wedding ceremony which lasted approximately twenty to thirty minutes; that the day’s events which commenced at about midday concluded later in the afternoon; and that he subsequently developed the film which he retained but handed over the developed photographs to the family. He confirmed that the photographs accurately depicted events that occurred during the wedding ceremony, denied fabricating or altering any of the photographs and maintained that the images represented genuine scenes captured during the occasion. 27. The witness also stated that he later attended the funeral of Mzee Simel, the deceased. He confirmed that he had known members of his family and had interacted with them during both the wedding and funeral ceremonies. He reiterated that the photographs produced in court related to the wedding ceremony of the deceased and accurately reflected the events of that day. That marked the close of the Applicant’ case. 28. On his part, the Respondent, **Stephen Parsait Simel (RW1)** the first born son of the deceased and his wife Sebeiyan Ene Simel stated that the Applicant was a worker at the family home of the deceased since 1998 and **George Kikase** the 1st Interested Party her husband, whereas **Stephen Moinket** **Meeli**, the 8th Interested Party, was the husband of **Margaret Toto Kilukei**, the 10th Interested Party, previously the wife of his younger brother. 29. He adopted his affidavits sworn on 5.04.2022 and 10.03.2025 (whose contents were reproduced in the early portion of the ruling) and the supplementary list of documents dated 10.03.2025 as his evidence-in-chief, the latter which contained a notice dated 31.07.2007 requiring the Applicant to vacate the property, allegedly in obedience to the directions of his father before his death that cattle be paid so that the Applicant could return to her home. 30. He also identified among the list of documents attached to his affidavit filed on 25.08.2022 another letter dated 6.07.2007 and addressed to his paternal uncle who had invaded the deceased’s land , **Benjamin Ketuta Mataen** (the 6th Interested Party) in similar vein because he grazed his cattle on the deceased’s land. Taking issue with the chief’s letter dated 22.01.2021, he stated that the Applicant and her children were not members of his family and that his name had been omitted while other members of his family were listed. He also identified photographs exhibited in his affidavit sworn on 10.03.2025 as evidence that the 10th Interested Party had demolished her matrimonial home and left to cohabit with **Stephen Moinket Meeli**. 31. During cross-examination by counsel for the Applicant, **RW1** stated that the Applicant was a househelp and an assistant taking care of the deceased and hired by him, and was to be paid with cows as agreed although he could not tell what salary was agreed upon. Stating that when the Applicant came to the home in 1998 she was already pregnant, as he was informed by his mother, **RW1** added that he was unaware that Maasai custom allowed the practice of polygamy, that his mother had been married under Maasai custom, that the deceased had no need for a second wife his mother being in good health, and that under Maasai custom the deceased was required to confer with him as the first son before taking a second wife. 32. Confirming that a copy of the Applicant’s identity card bearing the name of his father was obtained in his lifetime, the Respondent said he never heard his father raise objection thereto and that that the Applicant gave birth to her 1st child while she lived in his father’s homestead; that the father had instructed his brother **Sekoyo Mataen** (now deceased), to return the Applicant to her home of origin with cattle as a sign of goodwill; that cattle were prepared for the purpose, however the wishes were not carried out, thus the Applicant was abandoned in the deceased’s homestead and having moved to a house with the assistance of the chief, **PW3** and **Ketuta Minik** (6th Interested Party). 33. He stated that the Applicant had continued living on the deceased’s land in a portion close to the land of the 1st Interested Party, the alleged father of some of the Applicant’s children and that the deceased had disowned the first child Diana Moipan. He identified the 1st, 2nd, 3rd, 4th, 5th, 6th, 7th, 8th, 9th and 10th Interested Parties as related by blood or otherwise to the parties herein and asserting that they were all connected to the Applicant, and named in the second summons . 34. In answer to questions by the counsel for the 10th Interested Party, he confirmed that the said party cohabited with her deceased husband until his death on the deceased’s land; that that the said Party demolished her house recently and had moved to another portion on the land before marrying the 8th Interested Party and bearing two children with him while continuing occupation of the deceased’s land; that neither he nor his deceased mother had ever attempted to evict the 10th Interested Party; and that he lived at Ngong and not on the estate land. He also reiterated that the chief's introductory letter, dated 22.01.2022, omitted his name among beneficiaries despite the fact that he had filed the succession petition in 2020. That marked the close of the Respondent’s case, whereupon directions were issued for the filing of submissions. **SUBMISSIONS** 1. By submissions dated 16th September, 2025, counsel for the Applicant asserted that she was the 2nd wife of the deceased, her established matrimonial home being on the deceased’s land known as **Kajiado/Kaputiei-North/4627**, where she has continued to reside. Stating further that **Diana Mopian Simel** and other children born during the subsistence of that marriage are children of the deceased and beneficiaries of his estate. 2. Reiterating that the Respondent obtained the grant of letters of administration without involving the Applicant or her children and deliberately concealed from the Court the existence of the deceased’s second household, counsel stated that neither the Applicant nor her children consented to the petition, having been unaware of the succession proceedings. Despite being persons entitled to participate in the administration of the estate. 3. Restating oral and documentary evidence regarding her status as a widow to the deceased, counsel contended that the evidence overwhelmingly demonstrated that the Applicant was married to the deceased under Maasai customary law and rebutted claims by the Respondent that she was merely a house help, which claim in any event, was not supported by evidence. 4. Further asserting that customary marriages are recognized under Article 11 of the Constitution and Section 43 of the Marriage Act, counsel argued that the Applicant had proved the essential elements of a valid Maasai customary marriage, including negotiations between families, payment of dowry, community participation, and formal acceptance into the deceased’s family. Here emphasising testimony by witnesses who attended the marriage ceremony, including her father and clan elders, who gave consistent accounts of the customary rites that were performed. And in addition photographic evidence of the various stages of the marriage ceremony tendered in corroboration of oral testimony by witnesses. 5. Counsel cited the case of **Mwagiru v Mumbi [1995] eKLR**, for the holding that the existence of a customary marriage is a matter of fact and must be proved by demonstrating that the essential customary rites recognized by the relevant community were performed. Hence submitted that the Applicant had discharged this burden through oral and documentary evidence showing that indeed the asserted marriage was contracted in accordance with Maasai customs. 6. Also relied on was the pronouncement in **Re Estate of William Mbeke Muthini (Deceased) [2007] eKLR**, that customary law marriage may be proved through evidence showing performance of the essential customary rites and that once such proof is given, the burden shifts to the party disputing the marriage. Thus, it was argued that the Respondent had failed to rebut the evidence demonstrating the Applicant’s marriage to the deceased. 7. Contending that the Respondent’s failure to disclose the Applicant’s existence and that of her children amounted to concealment of material facts and rendered the grant liable to revocation under Section 76 of the Law of Succession Act, counsel submitted that the petition was founded on misrepresentation. In support of this argument, counsel relied on the statement in **Mary Wakaru Kibiru v Stephen Kiaria & Another [2017] eKLR**, that a widow married under customary law is a rightful beneficiary to the estate of her deceased husband and ought to be included in succession proceedings. 8. Also cited was the decision in the case of **In the Matter of the Estate of Gedion Manthi Nziko (Deceased) [2015] eKLR**, emphasizing that succession proceedings must be conducted openly and that all material facts must be disclosed to the Court. According to the Applicant, the Respondent’s omission of the Applicant’s household violated these principles. Moreover, where a person with an equal or prior right to apply for a grant is excluded from the proceedings, the grant is rendered defective as held in **Re Estate of M’Mugambi M’Itunga (Deceased) [2016] eKLR**. Thus, as a widow of the deceased, the Applicant had an equal right to participate in the administration process and should have been consulted before the grant was issued. 9. With regard to the allegation that she and the Interested Parties unlawfully encroached upon the estate land, counsel for the Applicant submitted that she has occupied the property continuously since her marriage in 1998 and therefore could not be described as a trespasser. 10. The prayer seeking exhumation of the deceased’s remains and DNA testing were equally opposed, the Applicant describing exhumation as an extraordinary remedy that should only be ordered in exceptional circumstances, whereas the deceased was buried many years ago. Terming the prayer as oppressive, intrusive, and intended to harass the deceased’s family, counsel for the Applicant cited the admission by the Respondent that the Applicant came to the deceased’s home in 1998 and that Diana Mopian was born during the subsistence of the marriage. Whereas the Respondent’s evidence regarding Diana’s paternity is based solely on hearsay and speculation. The case of **In re Estate of NKM (Deceased) [2021] eKLR**, was cited for the proposition that exhumation of a deceased person’s remains for DNA testing was a drastic order that ought to be made in exceptional circumstances, given the sanctity of human remains and likely emotional distress to surviving family members. Counsel contended that no such exceptional circumstances had been demonstrated in the present case. 11. Finally, counsel stated that the Applicant and her children qualify as dependants pursuant to Section 29(a) of the Law of Succession Act, and asserted that the Respondent’s challenge to the paternity of the Applicant’s children was not supported by evidence. Whereas Maasai customs recognize children born to a widow after the death of her husband as belonging to the deceased’s lineage and entitled to inherit within that family structure. On that basis, the Court was urged to dismiss the second summons, recognize the Applicant’s status as a widow of the deceased, acknowledge her children as beneficiaries, and to revoke or rectify the grant accordingly. 12. The 10th Interested Party **Margaret Toto Kilukei** through her counsel filed submissions dated 26th May, 2026. Identifying two principal issues for determination, namely, whether the Respondent is entitled to the prayers in the second summons, and whether the first summons ought to be granted. Her counsel associated himself with the Applicant’s submissions on the first summons in respect of which the 10th Interested Party expressed support, before proceeding to address the second summons. 13. Counsel, recounted the evidence that the 10th Interested Party was a widow to the deceased’s son and therefore beneficiary of the deceased’s estate, adding that allegations that she was a trespasser to the estate were baseless, as she had entered the estate property lawfully in her capacity as the wife of the deceased’s son. Counsel contended that the Respondent’s claim that she remarried one **Stephen Moinket Meeli** (8th Interested Party) is unsupported by evidence, thus the allegation of remarriage cannot defeat her established rights in the estate. 14. On the prayer seeking injunctive relief, counsel argued that the Respondent had failed to satisfy the well-established principles governing the grant of interlocutory injunctions, as articulated in **Giella v Cassman Brown & Co. Ltd [1973] EA 358**, and **Mrao Ltd v First American Bank of Kenya Ltd & 2 Others [2003] KLR 125**. 15. Thus, stating that the Respondent had failed to establish a prima facie case of trespass, highlighting the Respondent’s admission that the 10th Interested Party had occupied the estate property since 2006. Adding that photographs produced by the Respondent did not prove trespass and that mere allegations, suspicion, or conjecture cannot justify the drastic remedy of exclusion from property she has occupied for many years. 16. Moreover, counsel submitted that as a widow of a deceased beneficiary, the 10th Interested Party was entitled to protection under the Law of Succession Act. Here citing the protection accorded by the provisions of Section 29 and 35(1) of the Law of Succession Act, whereas the deceased beneficiary’s interest in the estate devolves upon his surviving spouse and child. Hence, the 10th Respondent’s entitlement to remain on the estate land pending final distribution. 17. Regarding the widow’s inheritance rights, counsel cited the case of **Rono v Rono [2005] KLR 538**, for the proposition that as a statute enacted to tame the mischief of customary law which discriminated against women and children and to give such persons the right to inherit property, the Law of Succession Act must be interpreted in a manner that promotes the rights of women and children to inherit property. Counsel arguing therefore that granting the injunction sought by the Respondent would effectively evict a widow from her matrimonial home before the succession cause is determined, thereby causing irreparable harm and offending principles of justice and equity. Hence the balance of convenience overwhelmingly favours maintaining the status quo and preserving the occupation of the property by the 10th Interested Party pending determination of the succession proceedings. 18. With regard to the prayer seeking exhumation and DNA testing, counsel for the 10th Interested Party submitted that the order sought is disproportionate, intrusive, and unsupported by evidence. More so as more than eighteen years have elapsed since interment of the deceased and in the absence of evidence that the deceased ever denied paternity of **Diana Mopian,** whose birth certificate bears the name of the deceased as her father. 19. Counsel cited the presumption of legitimacy under Section 118 of the Evidence Act, which provides that a child born during the continuation of a valid marriage is presumed to be the legitimate child of the spouses. Thus, Diana having been born during the subsistence of the Applicant’s marriage to the deceased enjoys the presumption of legitimacy, which the Respondent failed to rebut. Besides, even if paternity were disputed, the Law of Succession Act recognizes children conceived before a father’s death and born thereafter as children of the deceased. 20. The Court was therefore urged to reject the request for exhumation as unnecessary and contrary to the principles of dignity, proportionality, and respect for the dead. 21. Regarding the entitlement due to the 10th Interested Party, counsel contended that because her late husband **Wilson Kilukei Simel** was a beneficiary of the deceased’s estate, his interest devolved to his widow and child upon his death. And that the law requires the Court to consider the interests of predeceased beneficiaries through their surviving spouses and children and not to extinguish those rights merely because the beneficiary died before final distribution. 22. In closing, counsel for the 10th Interested Party supported the first summons terming the grant to the Respondent as having been obtained through concealment of material facts by failing to disclose the existence of the Applicant and her children. And stated that the exclusion of an entire household from the succession proceedings rendered the grant fundamentally defective pursuant to Section 76 of the Law of Succession Act. Accordingly, the Court was urged to dismiss the Respondent’s second summons in its entirety while allowing the first summons. 23. The Respondent’s submissions are dated 1st October, 2025 and commence by addressing prayers in the second summons. Therein, counsel accused the Applicant of unlawfully allowing the Interested Parties onto the suit property, where they have allegedly trespassed with livestock, consuming pasture to the detriment of the estate and its beneficiaries. It was further contended that portions of the property have been subdivided and fenced without authority and that unless the Court intervened, the estate was at risk of wastage. Counsel therefore argued that preservatory orders were necessary to protect the estate pending final determination of the succession proceedings. 24. As regards Diana **Mopian’s** paternity, counsel contending that her paternity remained unresolved argued that exhumation of the deceased’s remains and DNA testing would conclusively settle the paternity dispute and assist the Court in determining the rightful beneficiaries of the estate. 25. Turning to the first summons, counsel for the Respondent identified the key issue for determination to be whether a valid marriage existed between the deceased and the Applicant, **Sylvia Malilau Simel**. Citing Section 59 of the Marriage Act, counsel asserted that proof of marriage must be established through documentary evidence such as a marriage certificate or copy thereof, or entries in a register of marriages. 26. Thus, contending that the presumption of marriage through cohabitation having lost its footing under the current statutory framework, counsel asserted that the Applicant had failed to provide satisfactory proof of a customary marriage. In support of the above, counsel cited dicta in **Kimani v Gikanga (1965) EA 735 at 739**, that where customary law is invoked, it must be accurately established, and the onus of proof is on the party who relies on customary law. Also cited was the case of **Mary Wanjiru Githatu v Esther Wanjiru Kiarie, Civil Appeal No. 20 of 2009.** 27. The Applicant also relied on **Hortensia Wanjiku Yawe v The Public Trustee, Civil Appeal No. 13 of 1976**, for the following propositions:- (i) the burden of proving a customary marriage lies upon the person asserting it; (ii) the standard of proof is on a balance of probabilities; and (iii) the customary formalities relied upon must be proved to that standard. Counsel therefore contended the Applicant had failed to discharge her burden of proof. 28. Counsel further argued that the evidence tendered by the Applicant and her witnesses was inconsistent regarding the date and circumstances of the alleged Maasai customary marriage. Counsel pointed out that at the time, the deceased was already married to his first wife, whereas key elements of a valid Maasai customary marriage, including proper negotiations between families, payment of dowry, and the formal handing over of the bride, were not satisfactorily proved. 29. Emphasizing the requirement for strict proof of Maasai customary marriage, as stated In **re Estate of Oloikampai Sarapes Sanguti (Deceased) [2018] eKLR**, counsel contended that the essential elements of a valid Maasai customary marriage included negotiations between families, payment of dowry, and the handing over of the bride. Elements which counsel contends were not proved by the Applicant. The case of **Priscilla Waruguru Gathigo v Virginia Kamuzu Gathigo [2004] eKLR**, was also cited in that regard. 30. In summation counsel for the Respondent placed reliance on **In re Estate of Anyika David Leongu (Deceased) [2022] KEHC 10931 (KLR)**, where the Court dismissed a claim by a party who failed to establish that she was the deceased’s wife. Counsel therefore urged the Court to find that the Applicant had failed to prove the existence of a valid marriage to the deceased and to dismiss her summons, and consequently grant the second summons, and award costs to the Respondent. **Analysis and Determination** 1. The court has considered the evidential material and arguments canvassed in respect of the two summons before the court. From the evidence, some facts are not in dispute. The deceased was in his lifetime a resident of Ilpolosat, Kajiado County and married to Sebeiyan ene Simel (deceased) under Maasai customary law, hence the marriage was potentially polygamous. 2. With **Sebeiyan**, the deceased sired three sons, namely, **Stephen Parsai Simel** (the first son and Respondent herein), **Joseph Tenke Simel** (deceased and survived by his wife Agnes Isaac and four children) and **Wilson Kilukei Simel** (deceased); and daughters **Mtetiai Maison Mesa**, **Mwende Parmale Maako**, **Esther Sapiyo**, **Purity Saetua Simel**, **Roselyne Mpaiyama**, **Janet Metian Simel**, and **Nekiyo Simel**. The deceased and his immediate family resided on the vast land parcel **LR No.Kajiado/Kaputiei North/4627** (hereafter the estate property) located at Ilpolosat until his death on 1.07.2005. 3. In May 2006, the deceased son Wilson Kilukei married the 10th Interested Party under the African Christian Marriage and Divorce Act, and by the time of his death, the couple who resided on the estate property had one child, Abigael Kilukei, although the widow subsequently proceeded to bear two more children and to occupy the estate asset. 4. It is not in dispute that in or around 1998, the Applicant Silvia Malilau Simel came into the family of the deceased, although the circumstances are disputed, and has continued to live on the estate property to date. She had one daughter, Diana Mopian born on 11th July 1999 prior to the death of the deceased. Subsequent to the death of the deceased, she got two more daughters, namely, NMS and SNS, both minors as of 2021. 5. About 15 years after his father’s death, the Respondent moved the court by his petition dated 28.10.2020 and was issued with a grant of letters of administration appointing him as a sole administrator on 28th June 2021. The said grant is the subject of the first summons. It would appear that his mother Sebeiyan ene Simel died sometime in 2023. 6. The issues falling for determination in respect of the first summons are whether the Applicant was married to the deceased under Maasai customary law and therefore a wife and alongside her three children, rightful beneficiaries of the estate of the deceased, and consequently, whether the grant issued to the Respondent on 28th June 2021 was obtained through concealment of material facts and is liable for revocation under Section 76 of the Law of Succession Act; and regarding the second summons whether the prayers sought therein are merited. 7. Regarding the first question, as held in **Hortensia Wanjiku Yawe vs The public Trustee** (supra) a party alleging the existence of a customary marriage bears the burden of proof on a balance of probabilities, which is the standard of proof in civil cases. 8. The Court of Appeal in **Mumbi M'Nabea v David M. Wachira [2016] eKLR** expressed itself asas follows**:** **“In our jurisdiction, the standard of proof in civil liability claims is that of the balance of probabilities. This means that the Court will assess the oral, documentary and real evidence advanced by each party and decide which case is more probable. To put it another way, on the evidence, which occurrence of the event was more likely to happen than not. Section 107(1) of the Evidence Act, Cap 80 Laws of Kenya provides as follows:** **“Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.”** **The above provision provides for the legal burden of proof.** **However, Section 109 of the same Act provides for the evidentiary burden of proof and states as follows:** **“The burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person.”** **The position was re-affirmed by the Court of Appeal in Maria Ciabaitaru M’mairanyi & Others v. Blue Shield Insurance Company Limited -Civil Appeal No. 101 of 2000 [2005] 1 EA 280 where it was held that:** **“Whereas under Section 107 of the Evidence Act, (which deals with the evidentiary burden of proof), the burden of proof lies upon the party who invokes the aid of the law and substantially asserts the affirmative of the issue, section 109 of the same Act recognizes that the burden of proof as to any particular fact may be cast on the person who wishes the Court to believe in its existence.”** 1. This court found useful guidance in the decision of the Court of Appeal in **MNM V DNMK and Others (2017) e KLR.** In that case, the Court of Appeal reiterated its decision in **Gituanja v Gituanja (1983) KLR 575** and in **Kimani v Gikanga [1965] EA 735** where it was held that the existence of a customary marriage is a matter of fact, to be proved through evidence. In **MNM,** the Court of Appeal was called upon to determine whether a party named **E** was married to the deceased, in that case, under kikuyu customary law. The Court expressed itself as follows: **“Having carefully analysed the evidence, we do not see any basis for faulting the learned judge in his finding that E did not prove that she was married to the deceased under Kikuyu customary law. The onus was on her to prove such marriage. In *Kimani v. Gikanga* *(supra),* *Duffus JA*explained the position thus:** ***“To summarize the position; this is a case between Africans and African customary law forms a part of the law of the land applicable to this case. As a matter of necessity the customary law must be accurately and definitely established. The Court has a wide discretion as to how this should be done but the onus to do so must be on the party who puts forward customary law. This might be done by reference to a book or document of reference and would include a judicial decision but in view, especially of the present apparent lack in Kenya of authoritative text books on the subject, or any relevant case law, this would in practice usually mean that the party propounding customary law would have to call evidence to prove that customary law, as would prove the relevant facts of his case.”*** 1. That said, in the **Eliud Maina Mwangi vs Margaret Wanjiru Gachangi (2013) eKLR**, the Court of Appeal exhorted that customary law was dynamic and evolving with time. The Court observing that: **“Customary law is certainly not static. Like all other human inventions, it is dynamic and keeps evolving from generation to generation. Customary ceremonies cannot therefore be expected to be conducted in 2013 in exactly the same way that they were conducted in, say, 1930**. **To insist on rigid customary ceremonies at all times is the surest way of rendering customary law obsolete. For example, essential steps like payment of dowry may be satisfied by payment of the monetary equivalent of such items as goats and cows instead of delivery to the prospective in-laws every item in kind, such as beer, honey, live goats and cows. The bottom line appears to be that the essential steps and ceremonies must be performed, irrespective of the form in which they are performed.”** 1. In the present case, the Applicant testified that she was married to the deceased in 1998 under Maasai customary law. Although the Applicant did not, on her part, describe the various customary rites conducted prior to the wedding ceremony, it appears from the photographs of the ceremony taken by **PW7** that she was very young, possibly a teenager at the time, who despite initial reluctance had been given in marriage to a man old enough to be her grandfather. Thus, unable to recollect the traditional events culminating in the wedding ceremony captured in photographs. 2. However, the Applicant called other witnesses including **PW4**, a brother to the deceased who testified that the requisite cultural rites including identification of the bride, negotiation of dowry and eventual payment thereof were performed in this case prior to the wedding ceremony. He stated that he participated in these rites on three separate occasions at the home of the Applicant’s father, **PW5**, and eventually attended the wedding ceremony. His evidence was not shaken during cross-examination. 3. According to the Applicant’s father **PW5**, the wedding ceremony captured in the photographic evidence was the culmination of prior traditional rites, which followed the deceased’s request through his own brother **Ole Kopejo** for the Applicant’s hand in marriage. **PW5** having accepted the request, the first rite, known as *esirata* or marking of the proposed bride by female representatives of the deceased, was conducted, followed by dowry negotiations known as *enkaputi* where elders settled on 6 heads of cattle as stipulated by the Ilkaputiei section of the Maasai*.* **PW5** confirmed receipt of dowry, paving the way for the wedding ceremony captured by **PW7** and departure of the Applicant to commence cohabitation with the deceased. **PW5** refuted claims by the Respondent that the Applicant was a househelp in the family of the deceased. 4. **Tom Tajeu Reureu** (**PW7**), the photographer at the wedding ceremony, produced photographs **Exh.1 (i) A & B** capturing the same events and persons in her hard copy and photocopies of photographs marked as **Exh. 1, 2** and **3**. The photographer adopted his affidavit evidence which contained the narration at paragraph **12 (a) to (l)** identifying the persons present and various scenes of the wedding day, which narration was supported by other witnesses , such as **PW2,3,** and **4** who attended that ceremony, although they admittedly had not participated in pre-nuptial traditional ceremonies. 5. The wedding ceremony scenes captured and vividly described by **PW7** included the impartation of blessings as the Applicant prepared to leave her parents’ home while dressed in a white dress, the Applicant standing besides the deceased and his best man both who were formally dressed, the formal reception of the Appellant by women at the home of the deceased, impartation of blessing by the mother of the deceased and the deceased, his first wife and the Applicant all posing together for a photograph at the deceased’s home. 6. The photographs produced by **PW7**, including the ones showing the Applicant tending animals at her home after 2020 appeared genuine and believable, especially given the fact that the events captured therein involved real people well known to the parties and witnesses and were augmented by strong oral witness accounts. 7. **PW7** as a local resident of Ilpolosat was evidently well acquainted with the persons captured in his photographs and their respective roles, and in the court’s view, was the witness most removed from the key disputants herein, making him a most reliable and independent witness who had no axe to grind.He acquitted himself well during extensive cross-examination by the Respondent’s counsel, and like the other witnesses some of whom were maternal and paternal uncles to the Respondent, reiterated the subsequent cohabitation as man and wife by the bridal couple. 8. Although it appeared during cross-examination of **PW3**, that there existed a degree of animosity between him and the Respondent, as evidenced by the former’s inexplicable exclusion of the Respondent’s name among beneficiaries named in his introductory letter to the court dated 20.01.2021, the same cannot be said of **PW2**, a maternal uncle to the Respondent being his mother’s brother who, like **PW4** asserted that, despite not having attended prior cultural rites, he had attended the wedding ceremony between the Applicant and the deceased, and that they had cohabited as such at Ilpolosat. 9. The earliest documented source of the Maasai customary law of marriage in Kenya is **Eugene Cotran's Restatement of African Law, Volume 1: The Law of Marriage and Divorce (Sweet & Maxwell, London, 1968).** In Chapter 15 of that treatise, at page 159 the author states:. “”The marriage ceremony among the Maasai is known as ***Enkiama.*** The process leading to a valid marriage involves several sequential and customarily recognised steps, as follows: (a) Declaration of intention (**Olipsai**). The process is initiated by the prospective groom presenting an Olipsai — a beaded wedding necklace — to the woman of his choosing, signifying his matrimonial interest. He then arranges for a woman of his own age group to present alcohol to his chosen woman's mother, as a gesture of courtesy and an opening of negotiations. (b) Formal engagement **(*Enkoshoke*).** The first formal legal step in the constitution of a valid Maasai marriage is the presentation of ***Enkoshoke*** to the prospective bride. This act signifies that the woman is formally engaged and is considered, under customary law, the equivalent of a public notice of intended marriage. (c) Declaration to the bride's father (***Enkiroret***). Thereafter, a gift of alcohol known as *Enkiroret* is presented to the father of the bride. This gift is consumed by the father and his relatives, who thereupon formally require the man to declare his intentions. Upon acceptance of those intentions by the bride's family, a formal relationship between the two families is established. This stage constitutes family consent to the proposed union, which is an essential element of a valid customary marriage. (d) Betrothal (***Esirit***). Once the families have agreed, a formal betrothal — known as *Esirit* — is concluded. The betrothal is marked by the giving of the bride price and signifies the commencement of a binding legal relationship between the two families. At this point, the couple is considered officially engaged under customary law, and the woman may no longer be offered to another suitor. (e) Bride Price (***Enkoshoke Enkishu***). 1. According to the author, among the Maasai community both the type and the quantum of bride price or dowry is specified. The dowry or ***Enkoshoke Enkishu***, takes the form of cattle, and the standard number is between ten and forty-nine head of cattle. However, the precise number is subject to negotiation between the families and based on the bride's family proposals and the wealth of the proposed groom. The payment of dowry is not merely ceremonial, but a critical legal requirement under Maasai customary law. Dowry payment formalizes the union between the families of the bride and groom, transfers certain rights in respect of the bride, and establishes the legal status of children sired in the union. 2. In a relatively recent publication entitled **Engagement and Marriage among the Maasai** by **Naomi Kipury** available online at <http://journals.za/doi/pdf/10.10520/AJA02578301_36> and cited by counsel for the Applicant, the writer describes the ***esirata*** or betrothalas the first step signifying that a prospective bride has been identified and marked, which is followed by the formal declaration of intention by the prospective groom’s side who bring gifts to the girl’s home for discussions concerning the wedding ceremony. If the proposal is well received by the bride’s family, a further visit by the groom’s side with gifts including a heifer (***enkiteng***) to the father in law and an ewe (***enker***) to the mother in law and in addition, a bullock and cow with calf will follow. 3. The formal wedding ceremony (***Erikoroto too nkishu*,** meaning *led out with a herd of cows* ) having been set, the groom will arrive three days in advance, with two fat rams to be slaughtered and eaten by male members of both families before the wedding ceremony. On the wedding day, the bride is dressed up and adorned with ornaments and when ready to leave is blessed by elders before the bridal procession departs. On arrival at the groom's home, the bride is welcomed by her new family to commence cohabitation with her husband. 4. Indeed customary law evolves with time, as evident from the comparatively shorter steps documented by **Kipury,** perhaps reflecting a collapsing of several rites into the basic steps due evolution of cultural practices, in keeping with modern day realities. What is clear though is that the ***esirata*** ceremony, dowry negotiations (described as ***enkaputi*** by **PW5**), gifts (dowry) and finally the marriage ceremony described by **Kipury,** appear tomirror the ***Esirit,* *enkoshoke enkishu*** and ***enkiama*** rites described by Cotran. It is also significant that the photographs of the wedding ceremony taken by **PW7** appear to confirm **Kipury**’s description of the customary wedding ceremony. 5. **Denis Odinga Okiya**, in his 2016 PHD thesis entitled ***The Centrality of Marriage in African religio-culture with Reference to the Maasai of Kajiado, Kenya*** available online at <https://ir-library.ku.ac.ke/server/api/core/bitstreams/693a4c08-d738-4dec-9eb2-ffea18b3df5c/content> concluded from his research that: **‘’All the respondents were in agreement that the first step is normally the booking of the bride at the time of birth or at some point in her youth. The booking is done by the parents, especially the father. The second step involves discussions by the family of the bride and bridegroom and making engagement or courtship. There were three views regarding the third step. Some were of the view that the third step involved engagement of the couple or courtship. Others cited discussions between the parents of the bride and the bridegroom on the possibilities of marriage. There were two views on the fourth step: 1) time for the groom to collect the bride, 2) presentation of traditional gifts.** **Included in all these steps to marriage are several activities: payment of bridewealth, several ceremonies of blessing, smearing of the bride with animal fat, singing and dancing. These are accompanied by other ceremonies such as ornamentation of the bride, advising the couple, and presentation of gifts. Payment of bridewealth was singled out as the main activity of a Maasai marriage. It was seen as taking centre stage and as the climax of Maasai marriage. This is because the presentation of bridewealth signifies the consent of both families for the marriage to proceed......** 1. The author further noted from his research that: **‘’Bridewealth is a terminology used to describe the gifts given in marriage in a patrilineal set up. The gifts are given by the family of the bridegroom to the family of the bride. The Maasai are a patrilineal ethnic group where bridewealth is given to the family of the bride by the family of the bridegroom. Bridewealth is an important element in Maasai marriage…All the respondents indicated that bridewealth was necessary for marriage. These responses underscore the centrality of bridewealth in Maasai marriage. The role of bridewealth in legalizing marriage was re-emphasized by 117/163 (71.4%) of the respondents who indicated that a man who had not paid bridewealth had no legal claim on the woman...**(such informal relationship) **is considered to be an illegal cohabitation and friendship, ….If they happened to part ways while in such state, the woman would take back all the children with her. The man would have no right to claim ownership of the children because their stay together was unacceptable, illegal,….** **Bridewealth is necessary for marriage because it strengthens the covenant between two families. It shows that one has taken the wife completely; it is a sign of taking total control of the family, to show how rich the bridegroom is, to show that the man is responsible and ready to bring up a family and to seal or make the marriage legal. The responses indicate that there is no specific number of livestock given as bridewealth. The highest number of the respondents 52/163 (31.7%) cited six as the number of cows to be given as bridewealth, followed by 28/163 (17.3%) who indicated five as the number of cattle to be given. Those who indicated four as the number of cattle account for 22/163 (13.5%) while those for three cattle were 17/163 (10.6%). The two other choices of one and two cattle respectively account for 26.9% of the respondents.** **The variation in responses to this item may be interpreted as an indication that there is no specific number of cattle required for bridewealth as a general rule among the Maasai. Each situation is taken care of on its own merit. However, the average and the most commonly cited figure was six cattle.’’** 1. Viewed in this light, the Applicant’s evidence through her father and **PW4** appears credible proof of the requirements and actual compliance with the rites necessary for a Maasai customary marriage, whereas no evidence in rebuttal was tendered by the Respondent. 2. Against the Applicant’s evidence specifically through **PW5** showing that the deceased performed the requisite rites in respect of a Maasai customary marriage, the Respondent claimed that the Applicant was merely a house help who had been accommodated by the deceased's family. However, he did not tender any proof in support of the claim or plausible explanation why the identification and reception of a supposed female houseworker, barely out of her teens, by her alleged proposed elderly employer would require the deceased, and other male elders to formally and personally collect her from her family home and escort her to the alleged employer’s home amidst great formality and fanfare, as depicted in photographs by **PW7** and oral evidence by the Applicant’s witnesses. 3. Or why the deceased not having done so in his own lifetime would, as claimed by the Respondent, give instructions for the Applicant’s return to her home with several heads of cattle through his elder brother. Or how and why it is that, since 1998 to date, a mere househelp had remained on the family land occupying her own house, begetting children, and acquiring national registration in the deceased’s name, despite the deceased having died in 2005 and later his wife in 2023, without any serious legal steps being taken to remove her from the home. 4. The only rational answer to these questions is found in the Applicant’s evidence that, as a teenager, she was identified by and married to the deceased pursuant to Maasai customary law. Looking at the totality of the evidence, this court was satisfied that there is proof on a balance of probabilities that the formal requirements of a Maasai customary marriage, namely, ***esirata***, ***enkaputi****,* ***enkoshoke enkishu***followed by ***enkiama*** were satisfied. The court therefore finds that the Applicant was married to the deceased under Maasai customary law and was consequently a widow of the deceased for purposes of succession. 5. And further that, with regard to her first daughter **Diana Mopian** who was born in July 1999 during the continuance of the Applicant’s marriage to the deceased, and in the absence of evidence to the contrary, that she enjoys the presumption of legitimacy as a daughter of the deceased. However, the alleged Maasai custom invoked by the Applicant that her children born after the death of the deceased in 2005 are deemed his own children notwithstanding, was not satisfactorily established through evidence, and the court is unpersuaded. 6. Having found that the Applicant was a widow of the deceased, the next question is whether the grant issued to the Respondent ought to be revoked. Patently, the petition for grant by the Respondent did not include the Applicant and her daughter **Diana Mopian** as beneficiaries who survived the deceased. Whereas at the time of death the deceased had two wives, namely, **Sebeiyan ene Simel** (deceased) and **Silvia Malilau Simel**, the Applicant and several children. 7. The Applicant’s consent was not sought, the Respondent apparently considering her a stranger to the estate, and she was hence unaware of the petition. His actions perhaps arose from the fact that he was offended that the Applicant and 10th Respondent had, after the death of their respective spouses, proceeded to beget children with other men and hence misconception as to their true status in the estate. 8. Section 76 of the Law of Succession Act empowers the Court to revoke a grant where it was obtained fraudulently by making false statements or by concealment from the Court of material facts. The existence of a surviving widow and her house is undoubtedly a material fact. The omission of the Applicant’s house from the petition rendered the proceedings leading to the issuance of the grant defective in substance, the Petitioner having concealed from the Court some of the beneficiaries entitled to participate in the administration of the estate. 9. The foregoing is also true of the 10th Interested Party whose name was omitted among the beneficiaries despite being the widow of the deceased’s son **Wilson Kilukei Simel** (deceased) it being stated in the Respondent's affidavit in support of the petition that she had remarried. There is uncontroverted proof by way of a marriage certificate, and admitted by the Respondent, that she had married her deceased husband in 2006 and never divorced or remarried while she continued to reside on the estate property . 10. She had however gone on to have two children with other persons after her husband’s death, and invoked, as the Applicant has attempted, the unproven Maasai custom or presumption that these latter children were, in addition to Abigael, the children of her deceased husband. The Respondent was hard pressed to prove his claims that the 10th Interested Party was married to the 9th Interested Party, a cousin to the Applicant and that she had left her home to live with him. 11. In the circumstances, the grant issued to the Respondent being founded on misrepresentations and concealment of material facts, cannot be allowed to stand. The first summons dated 29th March 2022 must therefore be granted, but in terms that the grant to the Respondent is hereby revoked, and further that to obviate a vacuum in the administration of the estate, administrators reflecting a balanced representation of the beneficiaries’ interests ought to be appointed. 12. Therefore the court hereby issues a fresh grant in the names of the Respondent **Stephen Parsait Simel** being the only surviving son of the deceased; the Applicant **Sylvia Malilau Simel** being the surviving widow of the deceased; the deceased’s daughter **Purity Saetua Simel** to represent inter alia the interests of her sisters; and **Agnes Rachia**, the widow of **Joseph Tenke Simel** (deceased) to represent inter alia the interests of the families of sons of the deceased who are now deceased. Hopefully, these persons will co-operate to administer the estate in a manner that secures the interests of all beneficiaries before the grant is confirmed. 13. On the second summons, the Respondent’s case was that the Applicant and 10th Interested Parties had facilitated their co-Interested Parties to trespass onto the estate property where they grazed their cattle and committed other acts of waste. These allegations were disputed by the Applicant, 1st, 2nd, 3rd, 7th, 9th and 10th Interested Parties in their responses. Of these Interested Parties, the Applicant, 2nd, 3rd, 7th and 10th Interested Parties also testified in the same vein, as **PW1, 3, 5, 2 and 4,** respectively. 14. The legal principles governing interlocutory injunctions, remain as expressed in **Giella v Cassman Brown & Co. Ltd [1973] EA 358,** where the East African Court of Appeal held that an applicant must establish a prima facie case with a probability of success, show that damages would not be an adequate remedy, and where doubt exists, the matter should be determined on a balance of convenience. The definition of a prima facie case is found in **Mrao Ltd v First American Bank of Kenya Ltd & 2 Others [2003] eKLR**, namely**, *”A case which on the material presented to the court, a tribunal properly directing itself will conclude that there exists a right which has apparently been infringed by the opposite party as to call for an explanation or rebuttal from the latter.”*** 15. In this case the Respondent relied onphotographs which in the court’s opinion were inadequate for the purpose of creating the necessary nexus between the images therein, firstly with the Interested Parties and Applicant, and second, with the estate property, the subject of the summons. The maker of these photographs was not called as a witness, whereas no credible direct or indirect evidence was tendered linking the alleged livestock or activities complained of with the Interested Parties. Indeed, during cross-examination the Respondent conceded that he could not positively identify the persons in his photographs. 16. More significantly, as the court has already found, both the Applicant and the 10th Interested Parties have beneficial interest in the estate property and first occupied and continued to occupy the property lawfully on the basis of their proven relationship with the deceased, as widow and daughter-in-law, respectively. There was no evidence tendered to prove the allegation that the said Applicant and 10th Interested Party had invited or facilitated the 1st to 9th Interested Parties to trespass onto the land, or had themselves committed any acts of waste thereon. 17. In the circumstances, until each beneficiary's share of the property is determined, no precipitate action that would amount to barring the Applicant and 10th Interested Party from occupation of the portions of the property they currently possess and reside on can be justified. Thus, the second summons does not muster the threshold for issuance of temporary injunctive orders. 18. That being said, there is a clear need to preserve the estate from adverse dealing by any beneficiary pending eventual distribution. For that purpose, for purposes of preserving the estate land parcel **L.R. No. Kajiado/Kaputiei-North/4627,** the court hereby issues an order to the effect that, pending confirmation of grant and distribution, no beneficiary, dependant or person claiming under them or third party shall sell, alienate, subdivide, charge, lease or otherwise commit acts of waste on the said parcel or any other estate asset. For the avoidance of doubt, the administrators who have by this ruling been appointed shall jointly manage the estate properties as authorised by the Law of Succession Act, with a view to preserving it pending the confirmation of the grant. 19. Finally, it should be obvious by now that the prayer seeking exhumation for purposes of confirming the paternity of **Diana Mopian** is overtaken, and without proper basis. Exhumation of human remains is an extraordinary remedy that should only be granted where there are compelling and exceptional circumstances. The matter of exhumation, especially after 18 years in this case raises questions of practical efficacy, dignity of the dead, cultural taboos, effect on family members and public policy as reiterated by all the Interested Parties and the Applicant. 20. It appears to the court that the Respondent’s challenge to Diana Mopian's paternity is founded largely on suspicion and assertions, inter alia that the Applicant was already pregnant with her when she married the deceased, which were not supported by cogent evidence. As the court has already found, **Diana Mopian** was born during the subsistence of the marriage between the Applicant and the deceased, who accepted her as his child. The prayer for exhumation and compulsory DNA testing is therefore declined. 21. In conclusion, while the first summons is allowed in terms prescribed earlier in this ruling, the second summons fails and is hereby dismissed. Given the delay in concluding this matter, and the recorded fact that disbursement of compensation due to the estate from **KETRACO** is held up by the dispute, the court hereby directs the four administrators appointed at **paragraph 142** of this ruling namely, the **Stephen Parsait Simel, Silvia Malilau Simel, Purity Saetua Simel** and **Agnes Rachia** to expeditiously file the summons for confirmation of the grant with a view to concluding this matter without further delay. The parties will bear their own costs in respect of the first and second summons. It is so ordered. **DELIVERED AND SIGNED ELECTRONICALLY AT KAJIADO ON THIS 30TH DAY OF JULY, 2026** **** **C. MEOLI** **JUDGE** **In the presence of:** **For the Applicant: Mr. Kibet h/b for Mr. Nairi** **For the Respondent: Mr. Muriithi h/b for Mr. Nzaku** **For the 10th Interested Party: Ms. Yator h/b for Mr. Kariuki** **C/A: Lepatei**