(Being an appeal from the Ruling of Hon. E. Nyakundi (SRM) delivered on 27 th June, 2024 in Nairobi Milimani Chief Magistrates Court Succession Cause No. E055 of 2023, In the matter of the Estate of Timothy Irimu Murigu alias Timothy Irimu alias Murigu Timothy Irimu)
1. The Deceased, Timothy Irimu Murigu alias Timothy Irimu alias Murigu Timothy Irimu, died on 7 th August, 2021. The Respondent obtained grant of representation to his estate on 15 th August, 2023 and the same was confirmed on 4 th March, 2024. The Appellant brought an application dated 22 nd March, 2024 seeking to revoke the confirmed grant under section 76 of the Law of Succession Act. She claimed that she was a 2 nd wife of the Deceased and that the grant had been obtained fraudulently and by concealment of material facts thereby disinheriting legitimate dependents of the Deceased.
2. The Court delivered a ruling on 27 th June, 2024 in which dismissed the Appellant’s application for revocation. The Court held that since it had confirmed the grant on 4 th March, 2024, it became functus officio as far as the confirmation of the grant was concerned. It also held that, once a grant has been confirmed, the only recourse available to parties under civil law was to appeal or review, to the extent admissible under the Law of Succession Act but not move the Court under section 76 of the Law of Succession Act.
3. The Appellant went back to Court through miscellaneous application dated 1 st July, 2024 and amended on 31 st July, 2024 in which she sought revocation of the grant. The Respondents raised a preliminary objection arguing that the Appellant’s application for revocation of the grant was res judicata . The Court delivered a ruling on 12 th August, 2024 in which it held that it was functus officio . It also observed that the Appellant was at liberty to file an appeal against the ruling delivered on 27 th June, 2024, instead of a miscellaneous cause.
4. The Appellant was dissatisfied with the two rulings and appealed to this Court vide a Memorandum of Appeal dated 22 nd August, 2024. She raised 23 grounds of Appeal, which were captured in 6 pages of her Record of Appeal. I have reproduced 13 of the 23 grounds as follows;
1) 3. The Learned trial Magistrate misdirected herself in law and fact and arrived at a wrong conclusion in, having been a matter in which the Appellant was completely in the dark about, since the Respondent had excluded the Appellant from the petition for Grant of Letters of Administration as well as in the proceedings/Summons for confirmation of Grant hence she was not party to the said proceedings.
2) 4. The Learned trial magistrate erred in law and fact in failing to address the fact that the Respondent is guilty of fraudulently obtaining the Grant of Letters of Administration without involving the Appellant who is the widow of the Deceased and as well as the mother of T.B.W.I (a minor) who are rightful beneficiaries to the estate of the Deceased herein.
3) 5. The Learned Magistrate was wrong in issuing the Grant of Letters of Administration to the Respondent without the production of the birth certificate of minor T.B.W.I which would clearly have shown that the said child’s mother is the Appellant herein and the father was the Deceased. The Appellant is guilty of fraud by concealment of a material fact to the effect that the Appellant is the mother of the Deceased’s child; thereby hoodwinking the court to the effect that she (Respondent) is the mother of the minor while she herself had no child with the Deceased, in a blatant attempt to lock out the Appellant and manipulate the court so that she could take all the properties of the Deceased, thereby disinheriting the legitimate beneficiaries, the Appellant and the minor who are lawful dependants of the Deceased.
4) 6. The Learned Magistrate erred in law and fact in failing to consider the ground that the proceedings to obtain the grant were defective in substance as the minor is mentioned in the petition as a child of the Deceased, yet only one administrator was appointed in the Grant of Letters of Administration contrary to the provisions of Section 71 (2A) of the Law of Succession Act.
5) 7. That the Learned Magistrate erred in law and fact in failing to Summons for Confirmation of Grant particularly the prayer for the appointment of the Trustee of the child by the Appellant. The learned magistrate through the manipulation of the Respondent appointed a complete stranger one Judith Nekesa Mwanzo, who is unknown to the Appellant and the Minor, as Trustee of the minor who is the child of the Appellant and the Deceased while the Appellant is alive and well, a fact that the Respondent was very much aware of. All these orders were granted without the involvement and or consent of the Appellant which is an illegal act intended to defraud the Appellant and the Minor from their fair share in the estate, in complete contravention of the rights and welfare of the child as protected and enshrined in Article [..] of the Constitution of Kenya, 2010.
6) 8. That the Learned trial Magistrate erred in law and fact in failing to appreciate the Respondent acted fraudulently by the making of a false statement or by the concealment from the court of something material to the case. In this case the Administrator deliberately concealed to the Honourable Court information about the existence if the minor’s mother-the Appellant herein, while the court never made efforts to interrogate the Petition for Grant or the Summons for Confirmation of Grant.
7) 9. That the Learned magistrate misdirected herself in failing to address the fact that the Respondent misrepresented to the court that she was married to the Deceased while in fact she concealed the fact that she had long separated from the Deceased more than one year before the time of his death and that the Deceased had in fact filed for divorce against the Respondent vide Nairobi CMCC Divorce Cause No E029 of 2021 Timothy Irimu Murigu vs Carolyne Munyasili while she also filed a Cross-Petition against the Deceased. There was no existing marriage between the Respondent and the Deceased and the Respondent was not therefore a spouse to the Deceased at the time of his death. The Respondent is not therefore a proper person to be appointed administrator of the Deceased’s estate and or be a beneficiary of the estate of the Deceased in exclusion of his surviving spouse-the Appellant.
8) 10. That the learned magistrate erred in law and fact in failing to address the fact that the Respondent was guilty of non-disclosure of the full inventory of the estate of the Deceased.
9) 11. That learned trial magistrate erred in fact and law and granted orders of distribution of the estate despite the fact that the Respondent concealed to court the existence of other properties of the Deceased.
10) 12. That the learned trial magistrate erred in fact and in law in allowing the mode of distribution of the Deceased’s properties as listed in the Respondent’s Summons for Confirmation of Grant which included non-existent properties in the list of the Deceased’s estate.
11) 13. The learned trial Magistrate erred in law and fact in law in failing to consider the prayers made in the Summons for Revocation of Grant dated 25 th March, 2024 filed by the Appellant as well as the Appellant’s fresh Summons for Revocation of Grant dated 1 st July, 2024 and amended on 31 st July, 2024 seeking Revocation of grant of Letters of Administration and setting aside of the orders confirming the Grant and instead ruling that the matter was functus officio yet the Appellant had filed a fresh application and introduced the minor as a party in the proceedings and the new prayer for setting aside of the orders confirming the Grant. The Magistrate further ignored the grounds put forward by the Appellant under Section 76 of the Law of Succession Act, hence failing to take into consideration the grounds thereof.
12) 14. That the learned Magistrate erred in law and fact in failing to grant the Appellant an opportunity to present her case and in the circumstance, her right to a fair trial/hearing as enshrined in the Constitution was trampled on.
13) 22. That the learned magistrate failed in law to invoke the inherent jurisdiction conferred on the court under Section 76 to revoke the grant whether or not confirmed and further Rule 73 of the Probate and Administration Rules and instead placed undue reliance to extraneous matters while issuing the orders confirming the grant and the distribution of the estate.
5. She asked the court to allow the appeal and set aside the Grant of Letters of Administration issued on 4 th March, 2023 to the Respondent as well as the orders confirming the Grant of Letters of Administration issued on 15 th August, 2024 by Honourable E.M Nyakundi. She also prayed that, the Appellant together with the child’s grandmother Diana Mwikali Mutinda Mutisya be appointed administrators of the estate of the Deceased and the distribution of the rightful shares of the Appellant and the Deceased’s child- T.B.W.I to the estate of the Deceased be determined afresh.
6. Lastly, she requested that the orders made on 4 th March, 2024 as contained in the Certificate of Confirmation of Grant, appointing Judith Nekesa Mwanzo as Trustee of Baby T.B.W.I (a minor) as Trustee be vacated and the minor’s grandmother Diana Mwikali Mutinda Mutisya be appointed as Co-Administrator of the Estate, as Trustee of the Minor.
7. The Appeal was canvassed by way of written submissions.
Appellant’s written Submissions
8. The Appellant submitted that the grant issued to the Respondent should be revoked on grounds that there was fraudulent non-disclosure of material facts by the Respondent. She argued that the Respondent concealed the existence of the Appellant as the rightful spouse of the Deceased. She submitted that, once the Deceased and the Respondent separated, she married the Deceased under Kamba customary law and that dowry was paid in that respect. He also stated that the Deceased had indicated her as his next of kin in a policy he had taken with the ICEA Lion Insurance Company.
9. She also submitted that the Respondent fraudulently misrepresented that she was the Deceased’s wife. She argued that these claims were without merit, as the Respondent had long separated from the Deceased prior to his death and that the Deceased had already initiated divorce proceedings against the Respondent. She submitted that while the legal divorce may not have been finalized, the separation and the divorce proceedings demonstrated that the Deceased no longer considered her as his wife.
10. The Appellant submitted that she is a dependent under Section 3 (5) of the Law of Succession Act and thus entitled to inherit from the Deceased’s estate. She also argued that the proceedings to obtain the grant were defective in substance because the Respondent failed to appoint two administrators where a minor is a beneficiary and that she appointed a stranger as Trustee for the minor. She also submitted that the Respondent did not disclose the full inventory of the Deceased’s property such that some properties were omitted in the distribution.
11. Lastly, the Appellant submitted that the Respondent had already collected monies amounting to Kshs.11,000,000.00 from Nairobi Water & Sewerage company. She argued that, where it is found that the Respondent has transferred any of the Deceased’s property, the Court should order her to give an account and inventory and pay back to the estate all monies and properties already transferred in her name. She submitted that where monies have been withdrawn and properties transferred, the court should declare the same as illegally obtained and order the Respondent to pay back to the estate.
Respondent’s written Submissions
12. The Respondent submitted that she is a lawful and rightful beneficiary of the Deceased’s estate in the capacity of a widow and that she was fully entitled to institute the succession proceedings. She argued that there was no concealment of material facts from the court and that the allegations to the contrary are unfounded and unsupported by evidence. She submitted that her marriage to the Deceased subsisted throughout the lifetime of the Deceased and at the time of his death. She also submitted that the Appellant was not a wife of the Deceased and did not qualify as a beneficiary of the Deceased’s estate.
13. The Respondent also submitted that the grant does not disinherit the minor, arguing that she was duly recognized in the Petition and Certificate of Confirmation of Grant and was bequeathed several properties to be held in trust for her by a trustee. For this reason, she argued that she ensured that the Minor’s rights and interests were fully protected and that she was provided for. She submitted that any dispute by the Appellant regarding the adequacy or nature of the assets does not alter the fact that the minor was included in the distribution and was not disinherited.
14. Lastly, the Respondent submitted that there was no concealment of any information whatsoever regarding the properties making up part of the estate. She argued that the properties alleged to have been omitted from the Petition cannot be included in the Succession cause because of several reasons; some are not governed by the Law of Succession Act, others are owned jointly by the Deceased and the Respondent and hence not subject to the succession proceedings, and yet others are subject matter in the Deceased’s grandfather’s succession cause.
Issues for Determination
15. Having considered the grounds of appeal and the submission by the Appellant, I find that there are five (5) issues for determination;
a) Whether the Appellant’s application for revocation of grant dated 22 nd March, 2024 was merited.
b) Whether there was Concealment of something material to the case.
c) Whether the Appellant is a wife of the Deceased, and therefore a dependant under Section 3 (5) of the Law of Succession Act.
d) What Reliefs are available to the Appellant?
e) Who should be appointed the Co-administrator in this Cause?
16. This being a first Appeal, this Court has a duty to revisit the evidence tendered before the trial court afresh, evaluate, analyze it, and come to its own independent conclusion, but always bearing in mind that the trial court had the advantage of observing the demeanor of the witnesses and hearing them give evidence, and give allowance for that. (See Okeno vs. Republic (1972) EA 32 and Mark Oiruri Mose vs. R (2013) eKLR.
17. Accordingly, this Court is being required to undertake a wholesome review of the Appellant suit at the lower Court and come up with its conclusion.
Whether the Appellant’s application for revocation of grant dated 22 nd March, 2024 was merited
18. Section 76 of the Law of Succession Act provides for the grounds under which a court can revoke a grant of letters of administration. The section provides as follows;
A grant of representation, whether or not confirmed, may at any time be revoked or annulled if the court decides, either on application by any interested party or of its own motion—
(a) that the proceedings to obtain the grant were defective in substance;
(b) that the grant was obtained fraudulently by the making of a false statement or by the concealment from the court of something material to the case;
(c) that the grant was obtained by means of an untrue allegation of a fact essential in point of law to justify the grant notwithstanding that the allegation was made in ignorance or inadvertently;
(d) that the person to whom the grant was made has failed, after due notice and without reasonable cause either—
(i) to apply for confirmation of the grant within one year from the date thereof, or such longer period as the court order or allow; or
(ii) to proceed diligently with the administration of the estate; or
(iii) to produce to the court, within the time prescribed, any such inventory or account of administration as is required by the provisions of paragraphs (e) and (g) of section 83 or has produced any such inventory or account which is false in any material particular; or
(e) that the grant has become useless and inoperative through subsequent circumstances.”
19. The Court in In re Estate of Amos Kiteria Madeda-Deceased [2022] eKLR interpreted the said provision in the following terms;
21.The grounds upon which a grant may be revoked or annulled are thus statutory and it is incumbent upon any party making an application for revocation or annulment of a grant to demonstrate the existence of any, some or all the above grounds. A reading of Section 76 shows that the grounds can be divided into the following categories: - (a) the propriety of the grant-making process; (b) mal-administration or (c) where the grant has become inoperative due to subsequent circumstances.
20. The Appellant submitted that the grant issued to the Respondent should be revoked. For this to happen, it was upon the Appellant to demonstrate the existence of any or some of the grounds provided for under Section 76. That said, I shall relook at the Appellant’s application for revocation of grant dated 22 nd March, 2024, to determine whether the said application disclosed any or some of the grounds for revocation.
21. In the application, the Appellant claimed that the grant was obtained fraudulently and by concealment of material facts. The Application was supported by an affidavit sworn by her and dated the same date. She averred that the Respondent was the estranged 1 st wife of the Deceased and that the two were in the process of divorcing at the time of the death of the Deceased, in Divorce Cause No. E029 of 2021 Timothy Irimu vs Carolyne Munyasili. She attached a copy of the Petition for Divorce.
22. The Respondent filed a replying affidavit dated 1 st April, 2024, in which she did not comment on the issue of the divorce proceedings. Instead, she stated that she enjoyed an uninterrupted and continuous lawful marriage with the Deceased up until the date of his unfortunate passing.
23. I have relooked at the records to ascertain whether the Deceased had in fact initiated divorce proceedings against the Respondent. I have looked at the Petition for Divorce allegedly filed by the Deceased when he initiated the said divorce proceedings. I have also seen the answer to Petition and Cross-petition allegedly filed by the Respondent in response to Divorce Petition. The pleadings cite the case as Divorce Cause No. E029 of 2021. The Answer to Petition and Cross-petition shows that it was signed by the Respondent.
24. I note that the Respondent did not respond to the issue of the divorce proceedings between her and the Deceased. Additionally, she did not disown the copy of the answer to Petition and Cross-petition which bears her signature. She had an opportunity to file a further affidavit and clarify this issue to the court, but she did not. In the circumstances, I find that the Appellant has established, on a balance of probabilities, that there were subsisting divorce proceedings between the Respondent and the Deceased at the time of his death.
25. I associate with the observations of the Court in VJC v BSW [2024] eKLR , where the Court held that parties are deemed legally divorced once the Divorce Court pronounces its Judgment declaring the marriage as dissolved and issues a Decree Nisi . It observed as follows;
However, as regards proof of dissolution of the marriage, in my, view, that is sufficiently done once the Divorce Court pronounces its Judgment declaring the marriage as dissolved and issues a Decree Nisi. In this case, although it seems that neither of the parties has bothered to pursue extraction of the Decree Absolute, it is not denied that the marriage was dissolved by the Court vide its Judgment delivered way back on 20/09/2019, 5 years ago and further, neither of the parties denies that they have both accepted that fate.
26. Similarly, the Court in In re Estate of Salim Juma Hakeem Kitendo (Deceased) [2022] eKLR held that an estranged spouses remains legally married until the conclusion of their divorce proceedings. It observed as follows;
71. Therefore, in the absence of any divorce certificate or any witness in accordance with the Islamic law to confirm the divorce between the deceased and the objector, the allegations of divorce remain unsubstantiated. I have no doubt that the deceased did not complete any divorce proceedings against the objector and that by the time the deceased died, he was still lawfully married to the deceased. Consequently, the objector is for all purposes and intents a widow to the deceased and therefore a beneficiary to the deceased’s estate.
27. Based on the above authorities, I find that, the marriage between the Respondent and the Deceased had not been legally dissolved at the time of his death. Even though they had separated and the divorce proceedings were underway, the Respondent remained his wife because the divorce Court had not rendered a judgment declaring the marriage dissolved, and had not issued a Decree Nisi . Accordingly, I find that the Respondent was for all intents and purposes a widow of the Deceased and a beneficiary to the Deceased’s estate.
28. I have seen the Respondent’s petition for Letters of Administration Intestate together with the supporting affidavit both dated 29 th May, 2023. I have gone through the contents and the averments therein. She described herself as a wife of the Deceased and disclosed that the Deceased had a daughter (the minor in question). On the face of the petition for grant, in my view, the Respondent did not make fraudulent statements.
Whether the Respondent concealed Something Material to the Case
29. The court has also considered whether the Respondent concealed something material to the case. From the record, it is evident that the Respondent, while filing for the letters of the administration, did not disclose to the court the fact that the minor was not her biological daughter. Without that clarification, it is reasonable to assume that the Court presumed the minor was the Respondent’s biological daughter. It is also reasonable to assume that the Court believed that the Respondent was out to protect the interests of the minor because it believed that she was her biological daughter.
30. I also note that the Respondent appointed one Judith Nekesa Mwanzo as the trustee of the Minor. The Appellant claimed that the said person is the Respondent’s relative- being her sister-in-law. I presume that the lower Court did not see anything strange with this appointment, because it had been made to believe that the minor was the Respondent’s biological daughter. In my view, the lower Court would have been hesitate to allow such an arrangement had it been informed that the minor’s mother was alive, well, and able to articulate the best interests of the Minor.
31. In the end, I find that the Respondent’s failure to disclose to the Court the fact that the minor was not her biological daughter amounted to the concealment from the court of something material to the case as per Section 76 (b) of the Law of Succession Act. In that case, I find that the grant is for revocation.
Whether the Appellant is a wife of the Deceased, and therefore a dependant under Section 3 (5) of the Law of Succession Act
32. In her application for revocation of the grant, the Appellant claimed that she was married to the Deceased through Kikuyu-Kamba customary laws in early 2021. The Respondent denied the said marriage and maintained that the Appellant did not have the legal capacity to marry the Deceased at the said time because the Appellant herself was in another subsisting monogamous marriage which had not been dissolved at the time she alleges she married the Deceased.
33. I have relooked at the record to determine whether the Appellant had the legal capacity to marry the Deceased at the time she alleges they contracted the customary marriage. According to the documents on record, the Appellant was married to one D.N.M in 2010 but she filed a divorce against him in Divorce Cause No E1283 of 2020. The divorce court made a Decree Nisi on 16 th July, 2021 and the same was made absolute on 16 th August, 2021.
34. Thus, based on the observations of the Court in VJC v BSW (Supra), it means that the marriage between the Appellant and D.N.M was legally dissolved on 16 th July, 2021, when the Decree Nisi was made. Until that time, I find that the Appellant was in a monogamous marriage with D.N.M and thus she did not have the legal capacity to contract marriage with the Deceased, or anyone else.
35. In the instant case, the Deceased died on 7 th August, 2021. This means that, the only time that the Appellant was free to legally contract a marriage with the Deceased was between 17 th July, 2021 and 7 th August, 2021.
36. In the supporting affidavit to the application, the Appellant averred that she was married to the Deceased under customary law in early 2021. She produced an affidavit dated 28 th July, 2021, in which she stated that the customary rites were conducted on 19 th July, 2021. I have seen that the application was disposed of by way of written submissions and the parties did not give oral evidence on the application. Accordingly, the parties did not adduce oral testimony concerning the alleged customary marriage between the Appellant and the Deceased.
37. The lower Court did not address itself to the issue of the alleged customary marriage because the court declared itself functus officio and declined to look the merits of the application. However, I do not think that the lower Court was functus officio in the circumstances.
38. I associate with the observations of the Court in Asvalu v Ashiundu & another [2025] eKLR , where the court held that section 76 of the Law of Succession Act provides for instances where the court can be allowed to revoke or annul the Grant notwithstanding the fact that it has been confirmed. The court held as follows;
It is trite that the court largely becomes functus officio once it has issued a certificate of confirmation of letters of administration. However, section 76 of the Law of Succession Act provides for instances where the court can be allowed to revoke or annul the Grant notwithstanding the fact that it has been confirmed and provides that;- “
A Grant of representation, whether or not confirmed, may at any time be revoked or annulled if the court decides, either on application by any interested party or of its own motion—………………
By virtue of section 76 of the Law of Succession Act, the court had discretion to entertain an application for revocation or annulment of grant
39. Similarly, the Court in In re Estate of the Late Epharus Nyambura Nduati (Deceased) [2021] eKLR faced a similar question and held as follows;
38. In light of the above, I invoke the inherent powers of this court granted under Article 159 of the Constitution and Section 76 of the Law of Succession Act and make the order to revoke the letters of grant of administration issued to the Petitioner and subsequent confirmation as it was obtained fraudulently by the making of false statement or by the concealment from court of something material to the case particularly in relation to the sale of the 2 acre portion of Nyandarua/Oljoro Orok Salient/1881 belonging to the Applicant’s husband.
40. Based on the above authorities, I find that the Appellant’s application for revocation of the grant was rightly before the Court, and that the Court had the jurisdiction to hear the application, notwithstanding that it had confirmed the grant. In my view, that is the correct interpretation of Section 76 of the Law of Succession Act, where it stated; “ A Grant of representation, whether or not confirmed , may at any time be revoked or annulled if the court decides, either on application by any interested party or of its own motion .”
41. I shall now relook at the issue of the alleged customary marriage. Appellant produced two affidavits one sworn by her and another one sworn by the Deceased, both dated 28 th July, 2021. In the affidavits, they averred that they married each other under Kamba customary law on 19 th July, 2021. I note that in her earlier affidavit dated 22 nd March, 2024 she had indicated that they got married under the customary law in early 2021. In the latter affidavit, she also indicated that they swore an affidavit to that effect on 1 st April, 2021.
42. Kenyan Courts have established the requirements for proving a customary law marriage. In Hortensia Wanjiku Yawe v The public Trustees, Civil Appeal 13 of August 6, 1976 , the Court established the principles regarding proof of customary marriages in Court as follows;
“i. The onus of proving customary law marriage is generally on the party who claims it;
ii. The standard of proof is the usual one for a civil action, namely, one the balance of probabilities;
iii. Evidence as to the formalities required for a customary law marriage must be proved to that evidential standard.”
43. In DCK v GKM; RNM (Interested Party) [2020] eKLR , the Court interrogated on how a party should proof customary marriage and held as follows;
The plaintiff did not adduce any evidence to prove a marriage between her and the defendant. She pleaded that they contracted a customary marriage under Kalenjin Customary Law in 2014. One would have expected a document to show payment of dowry or a witness to confirm that indeed the plaintiff and the defendant cohabited as husband and wife between 2014 and 2018 but none was availed.
In the instant case, no attempt was made to prove a marriage
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1. The Deceased, Timothy Irimu Murigu alias Timothy Irimu alias Murigu Timothy Irimu, died on 7 th August, 2021. The Respondent obtained grant of representation to his estate on 15 th August, 2023 and the same was confirmed on 4 th March, 2024. The Appellant brought an application dated 22 nd March, 2024 seeking to revoke the confirmed grant under section 76 of the Law of Succession Act. She claimed that she was a 2 nd wife of the Deceased and that the grant had been obtained fraudulently and by concealment of material facts thereby disinheriting legitimate dependents of the Deceased.
2. The Court delivered a ruling on 27 th June, 2024 in which dismissed the Appellant’s application for revocation. The Court held that since it had confirmed the grant on 4 th March, 2024, it became functus officio as far as the confirmation of the grant was concerned. It also held that, once a grant has been confirmed, the only recourse available to parties under civil law was to appeal or review, to the extent admissible under the Law of Succession Act but not move the Court under section 76 of the Law of Succession Act.
3. The Appellant went back to Court through miscellaneous application dated 1 st July, 2024 and amended on 31 st July, 2024 in which she sought revocation of the grant. The Respondents raised a preliminary objection arguing that the Appellant’s application for revocation of the grant was res judicata . The Court delivered a ruling on 12 th August, 2024 in which it held that it was functus officio . It also observed that the Appellant was at liberty to file an appeal against the ruling delivered on 27 th June, 2024, instead of a miscellaneous cause.
4. The Appellant was dissatisfied with the two rulings and appealed to this Court vide a Memorandum of Appeal dated 22 nd August, 2024. She raised 23 grounds of Appeal, which were captured in 6 pages of her Record of Appeal. I have reproduced 13 of the 23 grounds as follows;
1) 3. The Learned trial Magistrate misdirected herself in law and fact and arrived at a wrong conclusion in, having been a matter in which the Appellant was completely in the dark about, since the Respondent had excluded the Appellant from the petition for Grant of Letters of Administration as well as in the proceedings/Summons for confirmation of Grant hence she was not party to the said proceedings.
2) 4. The Learned trial magistrate erred in law and fact in failing to address the fact that the Respondent is guilty of fraudulently obtaining the Grant of Letters of Administration without involving the Appellant who is the widow of the Deceased and as well as the mother of T.B.W.I (a minor) who are rightful beneficiaries to the estate of the Deceased herein.
3) 5. The Learned Magistrate was wrong in issuing the Grant of Letters of Administration to the Respondent without the production of the birth certificate of minor T.B.W.I which would clearly have shown that the said child’s mother is the Appellant herein and the father was the Deceased. The Appellant is guilty of fraud by concealment of a material fact to the effect that the Appellant is the mother of the Deceased’s child; thereby hoodwinking the court to the effect that she (Respondent) is the mother of the minor while she herself had no child with the Deceased, in a blatant attempt to lock out the Appellant and manipulate the court so that she could take all the properties of the Deceased, thereby disinheriting the legitimate beneficiaries, the Appellant and the minor who are lawful dependants of the Deceased.
4) 6. The Learned Magistrate erred in law and fact in failing to consider the ground that the proceedings to obtain the grant were defective in substance as the minor is mentioned in the petition as a child of the Deceased, yet only one administrator was appointed in the Grant of Letters of Administration contrary to the provisions of Section 71 (2A) of the Law of Succession Act.
5) 7. That the Learned Magistrate erred in law and fact in failing to Summons for Confirmation of Grant particularly the prayer for the appointment of the Trustee of the child by the Appellant. The learned magistrate through the manipulation of the Respondent appointed a complete stranger one Judith Nekesa Mwanzo, who is unknown to the Appellant and the Minor, as Trustee of the minor who is the child of the Appellant and the Deceased while the Appellant is alive and well, a fact that the Respondent was very much aware of. All these orders were granted without the involvement and or consent of the Appellant which is an illegal act intended to defraud the Appellant and the Minor from their fair share in the estate, in complete contravention of the rights and welfare of the child as protected and enshrined in Article [..] of the Constitution of Kenya, 2010.
6) 8. That the Learned trial Magistrate erred in law and fact in failing to appreciate the Respondent acted fraudulently by the making of a false statement or by the concealment from the court of something material to the case. In this case the Administrator deliberately concealed to the Honourable Court information about the existence if the minor’s mother-the Appellant herein, while the court never made efforts to interrogate the Petition for Grant or the Summons for Confirmation of Grant.
7) 9. That the Learned magistrate misdirected herself in failing to address the fact that the Respondent misrepresented to the court that she was married to the Deceased while in fact she concealed the fact that she had long separated from the Deceased more than one year before the time of his death and that the Deceased had in fact filed for divorce against the Respondent vide Nairobi CMCC Divorce Cause No E029 of 2021 Timothy Irimu Murigu vs Carolyne Munyasili while she also filed a Cross-Petition against the Deceased. There was no existing marriage between the Respondent and the Deceased and the Respondent was not therefore a spouse to the Deceased at the time of his death. The Respondent is not therefore a proper person to be appointed administrator of the Deceased’s estate and or be a beneficiary of the estate of the Deceased in exclusion of his surviving spouse-the Appellant.
8) 10. That the learned magistrate erred in law and fact in failing to address the fact that the Respondent was guilty of non-disclosure of the full inventory of the estate of the Deceased.
9) 11. That learned trial magistrate erred in fact and law and granted orders of distribution of the estate despite the fact that the Respondent concealed to court the existence of other properties of the Deceased.
10) 12. That the learned trial magistrate erred in fact and in law in allowing the mode of distribution of the Deceased’s properties as listed in the Respondent’s Summons for Confirmation of Grant which included non-existent properties in the list of the Deceased’s estate.
11) 13. The learned trial Magistrate erred in law and fact in law in failing to consider the prayers made in the Summons for Revocation of Grant dated 25 th March, 2024 filed by the Appellant as well as the Appellant’s fresh Summons for Revocation of Grant dated 1 st July, 2024 and amended on 31 st July, 2024 seeking Revocation of grant of Letters of Administration and setting aside of the orders confirming the Grant and instead ruling that the matter was functus officio yet the Appellant had filed a fresh application and introduced the minor as a party in the proceedings and the new prayer for setting aside of the orders confirming the Grant. The Magistrate further ignored the grounds put forward by the Appellant under Section 76 of the Law of Succession Act, hence failing to take into consideration the grounds thereof.
12) 14. That the learned Magistrate erred in law and fact in failing to grant the Appellant an opportunity to present her case and in the circumstance, her right to a fair trial/hearing as enshrined in the Constitution was trampled on.
13) 22. That the learned magistrate failed in law to invoke the inherent jurisdiction conferred on the court under Section 76 to revoke the grant whether or not confirmed and further Rule 73 of the Probate and Administration Rules and instead placed undue reliance to extraneous matters while issuing the orders confirming the grant and the distribution of the estate.
5. She asked the court to allow the appeal and set aside the Grant of Letters of Administration issued on 4 th March, 2023 to the Respondent as well as the orders confirming the Grant of Letters of Administration issued on 15 th August, 2024 by Honourable E.M Nyakundi. She also prayed that, the Appellant together with the child’s grandmother Diana Mwikali Mutinda Mutisya be appointed administrators of the estate of the Deceased and the distribution of the rightful shares of the Appellant and the Deceased’s child- T.B.W.I to the estate of the Deceased be determined afresh.
6. Lastly, she requested that the orders made on 4 th March, 2024 as contained in the Certificate of Confirmation of Grant, appointing Judith Nekesa Mwanzo as Trustee of Baby T.B.W.I (a minor) as Trustee be vacated and the minor’s grandmother Diana Mwikali Mutinda Mutisya be appointed as Co-Administrator of the Estate, as Trustee of the Minor.
7. The Appeal was canvassed by way of written submissions.
Appellant’s written Submissions
8. The Appellant submitted that the grant issued to the Respondent should be revoked on grounds that there was fraudulent non-disclosure of material facts by the Respondent. She argued that the Respondent concealed the existence of the Appellant as the rightful spouse of the Deceased. She submitted that, once the Deceased and the Respondent separated, she married the Deceased under Kamba customary law and that dowry was paid in that respect. He also stated that the Deceased had indicated her as his next of kin in a policy he had taken with the ICEA Lion Insurance Company.
9. She also submitted that the Respondent fraudulently misrepresented that she was the Deceased’s wife. She argued that these claims were without merit, as the Respondent had long separated from the Deceased prior to his death and that the Deceased had already initiated divorce proceedings against the Respondent. She submitted that while the legal divorce may not have been finalized, the separation and the divorce proceedings demonstrated that the Deceased no longer considered her as his wife.
10. The Appellant submitted that she is a dependent under Section 3 (5) of the Law of Succession Act and thus entitled to inherit from the Deceased’s estate. She also argued that the proceedings to obtain the grant were defective in substance because the Respondent failed to appoint two administrators where a minor is a beneficiary and that she appointed a stranger as Trustee for the minor. She also submitted that the Respondent did not disclose the full inventory of the Deceased’s property such that some properties were omitted in the distribution.
11. Lastly, the Appellant submitted that the Respondent had already collected monies amounting to Kshs.11,000,000.00 from Nairobi Water & Sewerage company. She argued that, where it is found that the Respondent has transferred any of the Deceased’s property, the Court should order her to give an account and inventory and pay back to the estate all monies and properties already transferred in her name. She submitted that where monies have been withdrawn and properties transferred, the court should declare the same as illegally obtained and order the Respondent to pay back to the estate.
Respondent’s written Submissions
12. The Respondent submitted that she is a lawful and rightful beneficiary of the Deceased’s estate in the capacity of a widow and that she was fully entitled to institute the succession proceedings. She argued that there was no concealment of material facts from the court and that the allegations to the contrary are unfounded and unsupported by evidence. She submitted that her marriage to the Deceased subsisted throughout the lifetime of the Deceased and at the time of his death. She also submitted that the Appellant was not a wife of the Deceased and did not qualify as a beneficiary of the Deceased’s estate.
13. The Respondent also submitted that the grant does not disinherit the minor, arguing that she was duly recognized in the Petition and Certificate of Confirmation of Grant and was bequeathed several properties to be held in trust for her by a trustee. For this reason, she argued that she ensured that the Minor’s rights and interests were fully protected and that she was provided for. She submitted that any dispute by the Appellant regarding the adequacy or nature of the assets does not alter the fact that the minor was included in the distribution and was not disinherited.
14. Lastly, the Respondent submitted that there was no concealment of any information whatsoever regarding the properties making up part of the estate. She argued that the properties alleged to have been omitted from the Petition cannot be included in the Succession cause because of several reasons; some are not governed by the Law of Succession Act, others are owned jointly by the Deceased and the Respondent and hence not subject to the succession proceedings, and yet others are subject matter in the Deceased’s grandfather’s succession cause.
Issues for Determination
15. Having considered the grounds of appeal and the submission by the Appellant, I find that there are five (5) issues for determination;
a) Whether the Appellant’s application for revocation of grant dated 22 nd March, 2024 was merited.
b) Whether there was Concealment of something material to the case.
c) Whether the Appellant is a wife of the Deceased, and therefore a dependant under Section 3 (5) of the Law of Succession Act.
d) What Reliefs are available to the Appellant?
e) Who should be appointed the Co-administrator in this Cause?
16. This being a first Appeal, this Court has a duty to revisit the evidence tendered before the trial court afresh, evaluate, analyze it, and come to its own independent conclusion, but always bearing in mind that the trial court had the advantage of observing the demeanor of the witnesses and hearing them give evidence, and give allowance for that. (See Okeno vs. Republic (1972) EA 32 and Mark Oiruri Mose vs. R (2013) eKLR.
17. Accordingly, this Court is being required to undertake a wholesome review of the Appellant suit at the lower Court and come up with its conclusion.
Whether the Appellant’s application for revocation of grant dated 22 nd March, 2024 was merited
18. Section 76 of the Law of Succession Act provides for the grounds under which a court can revoke a grant of letters of administration. The section provides as follows;
A grant of representation, whether or not confirmed, may at any time be revoked or annulled if the court decides, either on application by any interested party or of its own motion—
(a) that the proceedings to obtain the grant were defective in substance;
(b) that the grant was obtained fraudulently by the making of a false statement or by the concealment from the court of something material to the case;
(c) that the grant was obtained by means of an untrue allegation of a fact essential in point of law to justify the grant notwithstanding that the allegation was made in ignorance or inadvertently;
(d) that the person to whom the grant was made has failed, after due notice and without reasonable cause either—
(i) to apply for confirmation of the grant within one year from the date thereof, or such longer period as the court order or allow; or
(ii) to proceed diligently with the administration of the estate; or
(iii) to produce to the court, within the time prescribed, any such inventory or account of administration as is required by the provisions of paragraphs (e) and (g) of section 83 or has produced any such inventory or account which is false in any material particular; or
(e) that the grant has become useless and inoperative through subsequent circumstances.”
19. The Court in In re Estate of Amos Kiteria Madeda-Deceased [2022] eKLR interpreted the said provision in the following terms;
21.The grounds upon which a grant may be revoked or annulled are thus statutory and it is incumbent upon any party making an application for revocation or annulment of a grant to demonstrate the existence of any, some or all the above grounds. A reading of Section 76 shows that the grounds can be divided into the following categories: - (a) the propriety of the grant-making process; (b) mal-administration or (c) where the grant has become inoperative due to subsequent circumstances.
20. The Appellant submitted that the grant issued to the Respondent should be revoked. For this to happen, it was upon the Appellant to demonstrate the existence of any or some of the grounds provided for under Section 76. That said, I shall relook at the Appellant’s application for revocation of grant dated 22 nd March, 2024, to determine whether the said application disclosed any or some of the grounds for revocation.
21. In the application, the Appellant claimed that the grant was obtained fraudulently and by concealment of material facts. The Application was supported by an affidavit sworn by her and dated the same date. She averred that the Respondent was the estranged 1 st wife of the Deceased and that the two were in the process of divorcing at the time of the death of the Deceased, in Divorce Cause No. E029 of 2021 Timothy Irimu vs Carolyne Munyasili. She attached a copy of the Petition for Divorce.
22. The Respondent filed a replying affidavit dated 1 st April, 2024, in which she did not comment on the issue of the divorce proceedings. Instead, she stated that she enjoyed an uninterrupted and continuous lawful marriage with the Deceased up until the date of his unfortunate passing.
23. I have relooked at the records to ascertain whether the Deceased had in fact initiated divorce proceedings against the Respondent. I have looked at the Petition for Divorce allegedly filed by the Deceased when he initiated the said divorce proceedings. I have also seen the answer to Petition and Cross-petition allegedly filed by the Respondent in response to Divorce Petition. The pleadings cite the case as Divorce Cause No. E029 of 2021. The Answer to Petition and Cross-petition shows that it was signed by the Respondent.
24. I note that the Respondent did not respond to the issue of the divorce proceedings between her and the Deceased. Additionally, she did not disown the copy of the answer to Petition and Cross-petition which bears her signature. She had an opportunity to file a further affidavit and clarify this issue to the court, but she did not. In the circumstances, I find that the Appellant has established, on a balance of probabilities, that there were subsisting divorce proceedings between the Respondent and the Deceased at the time of his death.
25. I associate with the observations of the Court in VJC v BSW [2024] eKLR , where the Court held that parties are deemed legally divorced once the Divorce Court pronounces its Judgment declaring the marriage as dissolved and issues a Decree Nisi . It observed as follows;
However, as regards proof of dissolution of the marriage, in my, view, that is sufficiently done once the Divorce Court pronounces its Judgment declaring the marriage as dissolved and issues a Decree Nisi. In this case, although it seems that neither of the parties has bothered to pursue extraction of the Decree Absolute, it is not denied that the marriage was dissolved by the Court vide its Judgment delivered way back on 20/09/2019, 5 years ago and further, neither of the parties denies that they have both accepted that fate.
26. Similarly, the Court in In re Estate of Salim Juma Hakeem Kitendo (Deceased) [2022] eKLR held that an estranged spouses remains legally married until the conclusion of their divorce proceedings. It observed as follows;
71. Therefore, in the absence of any divorce certificate or any witness in accordance with the Islamic law to confirm the divorce between the deceased and the objector, the allegations of divorce remain unsubstantiated. I have no doubt that the deceased did not complete any divorce proceedings against the objector and that by the time the deceased died, he was still lawfully married to the deceased. Consequently, the objector is for all purposes and intents a widow to the deceased and therefore a beneficiary to the deceased’s estate.
27. Based on the above authorities, I find that, the marriage between the Respondent and the Deceased had not been legally dissolved at the time of his death. Even though they had separated and the divorce proceedings were underway, the Respondent remained his wife because the divorce Court had not rendered a judgment declaring the marriage dissolved, and had not issued a Decree Nisi . Accordingly, I find that the Respondent was for all intents and purposes a widow of the Deceased and a beneficiary to the Deceased’s estate.
28. I have seen the Respondent’s petition for Letters of Administration Intestate together with the supporting affidavit both dated 29 th May, 2023. I have gone through the contents and the averments therein. She described herself as a wife of the Deceased and disclosed that the Deceased had a daughter (the minor in question). On the face of the petition for grant, in my view, the Respondent did not make fraudulent statements.
Whether the Respondent concealed Something Material to the Case
29. The court has also considered whether the Respondent concealed something material to the case. From the record, it is evident that the Respondent, while filing for the letters of the administration, did not disclose to the court the fact that the minor was not her biological daughter. Without that clarification, it is reasonable to assume that the Court presumed the minor was the Respondent’s biological daughter. It is also reasonable to assume that the Court believed that the Respondent was out to protect the interests of the minor because it believed that she was her biological daughter.
30. I also note that the Respondent appointed one Judith Nekesa Mwanzo as the trustee of the Minor. The Appellant claimed that the said person is the Respondent’s relative- being her sister-in-law. I presume that the lower Court did not see anything strange with this appointment, because it had been made to believe that the minor was the Respondent’s biological daughter. In my view, the lower Court would have been hesitate to allow such an arrangement had it been informed that the minor’s mother was alive, well, and able to articulate the best interests of the Minor.
31. In the end, I find that the Respondent’s failure to disclose to the Court the fact that the minor was not her biological daughter amounted to the concealment from the court of something material to the case as per Section 76 (b) of the Law of Succession Act. In that case, I find that the grant is for revocation.
Whether the Appellant is a wife of the Deceased, and therefore a dependant under Section 3 (5) of the Law of Succession Act
32. In her application for revocation of the grant, the Appellant claimed that she was married to the Deceased through Kikuyu-Kamba customary laws in early 2021. The Respondent denied the said marriage and maintained that the Appellant did not have the legal capacity to marry the Deceased at the said time because the Appellant herself was in another subsisting monogamous marriage which had not been dissolved at the time she alleges she married the Deceased.
33. I have relooked at the record to determine whether the Appellant had the legal capacity to marry the Deceased at the time she alleges they contracted the customary marriage. According to the documents on record, the Appellant was married to one D.N.M in 2010 but she filed a divorce against him in Divorce Cause No E1283 of 2020. The divorce court made a Decree Nisi on 16 th July, 2021 and the same was made absolute on 16 th August, 2021.
34. Thus, based on the observations of the Court in VJC v BSW (Supra), it means that the marriage between the Appellant and D.N.M was legally dissolved on 16 th July, 2021, when the Decree Nisi was made. Until that time, I find that the Appellant was in a monogamous marriage with D.N.M and thus she did not have the legal capacity to contract marriage with the Deceased, or anyone else.
35. In the instant case, the Deceased died on 7 th August, 2021. This means that, the only time that the Appellant was free to legally contract a marriage with the Deceased was between 17 th July, 2021 and 7 th August, 2021.
36. In the supporting affidavit to the application, the Appellant averred that she was married to the Deceased under customary law in early 2021. She produced an affidavit dated 28 th July, 2021, in which she stated that the customary rites were conducted on 19 th July, 2021. I have seen that the application was disposed of by way of written submissions and the parties did not give oral evidence on the application. Accordingly, the parties did not adduce oral testimony concerning the alleged customary marriage between the Appellant and the Deceased.
37. The lower Court did not address itself to the issue of the alleged customary marriage because the court declared itself functus officio and declined to look the merits of the application. However, I do not think that the lower Court was functus officio in the circumstances.
38. I associate with the observations of the Court in Asvalu v Ashiundu & another [2025] eKLR , where the court held that section 76 of the Law of Succession Act provides for instances where the court can be allowed to revoke or annul the Grant notwithstanding the fact that it has been confirmed. The court held as follows;
It is trite that the court largely becomes functus officio once it has issued a certificate of confirmation of letters of administration. However, section 76 of the Law of Succession Act provides for instances where the court can be allowed to revoke or annul the Grant notwithstanding the fact that it has been confirmed and provides that;- “
A Grant of representation, whether or not confirmed, may at any time be revoked or annulled if the court decides, either on application by any interested party or of its own motion—………………
By virtue of section 76 of the Law of Succession Act, the court had discretion to entertain an application for revocation or annulment of grant
39. Similarly, the Court in In re Estate of the Late Epharus Nyambura Nduati (Deceased) [2021] eKLR faced a similar question and held as follows;
38. In light of the above, I invoke the inherent powers of this court granted under Article 159 of the Constitution and Section 76 of the Law of Succession Act and make the order to revoke the letters of grant of administration issued to the Petitioner and subsequent confirmation as it was obtained fraudulently by the making of false statement or by the concealment from court of something material to the case particularly in relation to the sale of the 2 acre portion of Nyandarua/Oljoro Orok Salient/1881 belonging to the Applicant’s husband.
40. Based on the above authorities, I find that the Appellant’s application for revocation of the grant was rightly before the Court, and that the Court had the jurisdiction to hear the application, notwithstanding that it had confirmed the grant. In my view, that is the correct interpretation of Section 76 of the Law of Succession Act, where it stated; “ A Grant of representation, whether or not confirmed , may at any time be revoked or annulled if the court decides, either on application by any interested party or of its own motion .”
41. I shall now relook at the issue of the alleged customary marriage. Appellant produced two affidavits one sworn by her and another one sworn by the Deceased, both dated 28 th July, 2021. In the affidavits, they averred that they married each other under Kamba customary law on 19 th July, 2021. I note that in her earlier affidavit dated 22 nd March, 2024 she had indicated that they got married under the customary law in early 2021. In the latter affidavit, she also indicated that they swore an affidavit to that effect on 1 st April, 2021.
42. Kenyan Courts have established the requirements for proving a customary law marriage. In Hortensia Wanjiku Yawe v The public Trustees, Civil Appeal 13 of August 6, 1976 , the Court established the principles regarding proof of customary marriages in Court as follows;
“i. The onus of proving customary law marriage is generally on the party who claims it;
ii. The standard of proof is the usual one for a civil action, namely, one the balance of probabilities;
iii. Evidence as to the formalities required for a customary law marriage must be proved to that evidential standard.”
43. In DCK v GKM; RNM (Interested Party) [2020] eKLR , the Court interrogated on how a party should proof customary marriage and held as follows;
The plaintiff did not adduce any evidence to prove a marriage between her and the defendant. She pleaded that they contracted a customary marriage under Kalenjin Customary Law in 2014. One would have expected a document to show payment of dowry or a witness to confirm that indeed the plaintiff and the defendant cohabited as husband and wife between 2014 and 2018 but none was availed.
In the instant case, no attempt was made to prove a marriage
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