[1] Before the Court for determination is the Summons for Revocation and/or Annulment of Grant dated 3 rd March 2024. It was filed herein by Hassan Saidi Mboya under Section 76 of the Law of Succession Act, Chapter 160 of the Laws of Kenya ; and Rules 26(1), 44, 49, 59 and 63 of the Probate and Administration Rules, for an order that the Grant of Letters of Administration Intestate issued to the petitioners/respondents, Hellen Nyakinda Osongo and Samuel Osewe Ochillo, in respect of the estate of the deceased herein, be revoked and/or annulled; and that the costs of the application be provided for. The applicant relied on the following grounds:
[a] That the respondents concealed material facts and failed to disclose to the Court that he, the applicant herein, is one of the rightful surviving beneficiaries of the deceased.
[b] That the respondents were not fair during their application for subdivision of the deceased’s property in failing to include the applicant or to obtain his consent to the subdivision.
[c] That the applicant stands to suffer irreparable damage if the Grant of Letters of Administration Intestate issued to the respondents is not revoked.
[2] In his Supporting Affidavit sworn on 4 th March 2024, the applicant averred that he is one of the sons of the deceased; and that the deceased died intestate on the 25 th February 2000. The applicant explained that at some point in his lifetime, the deceased obtained a loan from a financial institution and used his land as security; and that he later approached the 2 nd respondent, Mr. Samwel Ochillo , Advocate, for financial assistance in offsetting the said loan. The applicant further averred that, after the death of his parents, and without his knowledge, his stepmother, Hellen Nyakinda Osongo , who is the 1 st respondent herein, instituted a Petition for Grant of Letters of Administration jointly with the 2 nd respondent in respect of the estate of the deceased.
[3] The applicant further deposed that upon conducting his own due diligence, he found out that his name had been omitted from the list of beneficiaries. He therefore filed the instant application, contending that the Grant was obtained fraudulently and without full disclosure to the Court of the material facts relating to the subject estate; thereby disinheriting him from his rightful share of the estate. He annexed copies of the Grant of Letters of Administration issued to the two respondents, the Green Card for land parcel number West Kasipul/Kasimba/213 and the Certificate of Death in respect of the deceased.
[4] The respondents opposed the application. In her Replying Affidavit sworn on 18 th November 2024, the 1 st respondent confirmed that she is the only surviving widow of the deceased, George Osongo Swa ; and that she was the 5 th wife. She further averred that the mother of the applicant, Azziza Ojwok Osongo, was the 2 nd wife; and that Azziza Ojwok and the deceased separated in the 1980s after having had one child. It was her assertion that the applicant’s mother thereafter got married to one Saidi Mboya in Kisumu and were blessed with five other children, including the applicant.
[5] The 1 st respondent pointed out that, since the applicant’s mother had contracted another marriage, she was not allowed by the elders to come back to the deceased’s homestead as a widow to attend the funeral of the deceased. She however acknowledged that Kamuzu Banda Osongo , cited in the Replying Affidavits as the respondent, and who is a brother to the applicant, was given a portion of land from the estate where he is living to date. She contended that the applicant is the son of Saidi Mboya and therefore has no share in the estate of the deceased. She added that the applicant has settled in Ndhiwa where his home is situated.
[6] Regarding the 2 nd respondent’s interest, the 1 st respondent averred that the family members of the deceased sat down and agreed that he be given his portion of land as per the agreement he entered into with the deceased during his lifetime. She added that the family also agreed and authorized Kamuzu Banda Osongo (hereinafter, “Kamuzu”) to apply for Grant of Letters of Administration in respect of the estate of the deceased; which he did in Oyugis SRM’s Succession Cause No. 90 of 2004 . The 1 st respondent further averred that Kamuzu was consequently issued with a Grant; which Grant was confirmed on the 26 th January 2005.
[7] At paragraph 18 of her Replying Affidavit, the 1 st respondent deposed that, despite the confirmation of the Grant issued by Oyugis SRM’s Court, Kamuzu failed, neglected and/or declined to distribute the estate of the deceased, more particularly LR No. WEST KASIPUL/KASIMBA/213, to the dependants of the deceased. She also stated that the respondent instead proceeded to sell portions of the estate to third parties, including one Tom Sipul , without reference to the other beneficiaries. Hence, they applied for revocation of the Grant issued to Kamuzu and were themselves appointed as the administrators of the deceased’s estate.
[8] The 1 st respondent further averred that, upon the Grant issued to them being confirmed, they proceeded to distribute the estate to the beneficiaries of the deceased as per the five houses; and none of them has ever complained about the manner in which distribution was carried out. She added that the beneficiaries of the deceased have settled as per the distribution and some have proceeded to sell their respective portions to third parties; while others have buried their loved ones on the portions allocated to them.
[9] She reiterated her stance that the applicant is not a son of the deceased and proposed that a DNA test be conducted to determine his paternity if the applicant was ready to cater for the costs of the exercise that would include exhumation of the body of the deceased. In the alternative, the 1 st respondent averred that, should it be found that the applicant has a valid claim to a share of the estate then it is Kamuzu who should share with him his portion of land that was given to the 2 nd House. She otherwise prayed for the dismissal of the application.
[10] The 2 nd respondent, Samwel Osewe Ochillo , also filed a Replying Affidavit to the application, sworn on 21 st November 2024. He deposed that sometime in the years 1996 and 1997, he entered into a land sale agreement with the deceased, George Osongo Swa , in respect of a portion of his land LR No. WEST KASIPUL/KASIMBA/213, and that by the time of his demise, the deceased had not transferred the purchased portion to him. He further averred that he was aware that subsequently, the family members of the deceased sat down and authorized Kamuzu to petition for Grant of Letters of Administration on behalf of the family, acknowledging his land sale agreement with the deceased as a liability to the estate.
[11] The 2 nd respondent further averred that upon obtaining the Grant as well as a Certificate of Confirmation, Kamuzu failed, neglected and/or declined to distribute the estate as agreed, but instead started selling portions of LR No. WEST KASIPUL/KASIMBA/213 to third parties, such as one Tom Sipul . He reiterated the averments of the 1 st respondent as to how they came to be appointed as administrators and confirmed that in the ensuing distribution, he was given his portion of the estate, measuring one acre, pursuant to his land sale agreement with the deceased.
[12] At paragraph 18 of his Replying Affidavit, the 2 nd respondent averred that his interest as a creditor was duly recognized in Oyugis SRM Succession Cause No. 90 of 2004; and that he has already been given his portion, albeit a smaller one in size. He added that none of the other beneficiaries are complaining about the manner in which distribution was done. He also averred that no complaint has been raised by the applicant about the land sale agreement he had with the deceased in his lifetime. The 2 nd applicant annexed a copy of the agreement to his affidavit, among other documents, and prayed for the dismissal of the application, contending that the applicant has not met the minimum threshold for revocation of Grant.
[13] Kamuzu also filed his Replying Affidavit in opposition to the application. He reiterated the contents of the affidavits filed by the respondents and added that he is the son of the deceased from the 2 nd house of Azziza Ojuok Osongo . He also pointed out that he is the only child of the deceased from that house. Kamuzu further averred that his mother separated from the deceased around 1970 when he was young; and that he was brought up by his grandmother; and upon the death of his grandmother around 1974/1975, he was taken in by his step mother, Jane Osongo . He added that upon the death of Jane Osongo in 1993, his father handed him over to the 1 st respondent.
[14] Kamuzu further stated that, after separating from his father, his mother remarried one Saidi Mboya in Kisumu and settled in Kondele, where she had five other children, including the applicant. He also stated that his mother later differed with Saidi Mboya and returned to Oyugis with her five children in the hopes of resuming cohabitation with his father, but his father declined and wanted nothing to do with her. He added that when the deceased died in 2000, his mother, the applicant and his siblings did not attend the funeral as no house or home had been constructed for his mother during the deceased’s lifetime. He added that, when his mother died in 2003, he was prevailed upon by his relatives to inter her body on the piece of land he inherited from the estate of the deceased as there was no burial place for her in the Osongo family set up; and so her body was buried on his own portion of the estate land.
[15] Kamuzu conceded that the deceased’s family met and appointed him as their representative, with authority to apply for Grant of Letters of Administration in respect of the estate of the deceased. He averred that he proceeded to file Oyugis SRM’s Succession Cause No. 90 of 2004 and the Grant issued to him was confirmed on 26 th January 2005. He further conceded that he failed to distribute the estate as expected; and that due to his failure to diligently administer the estate the Grant was revoked and he was replaced by the two respondents.
[16] At paragraph 18 of his affidavit, Kamuzu averred that the distribution was thereafter effected and all the five houses of the deceased were provided for; and none of them has had any complaint thereafter. He denied that the applicant is a son to the deceased and asserted that he is merely out to cause disunity and dispossess the rightful beneficiaries of the deceased. He likewise proposed that DNA be conducted at the applicant’s expense to determine his paternity. Kamuzu posited that the applicant ought to claim his inheritance from the estate of his biological father, one Saidi Mboya.
[17] The application was canvassed by way of viva voce evidence in which the witnesses adopted their respective affidavits. The applicant testified on 28 th May 2025. He adopted his Supporting Affidavit sworn on 4 th March 2024 as well as his Further Affidavit sworn on 3 rd April 2024. The contents of those two affidavits have been summarized herein above. In cross-examination, the applicant reiterated that the purpose of filing the application was to obtain his rightful share of the estate of his deceased father. In his assertion, he was supposed to receive land parcel No. 2106 as shown in the Mutation Form which he produced as an exhibit herein.
[18] Regarding his relationship with Saidi Mboya , the applicant explained that when his mother returned to Oyugis to resume cohabitation with the deceased there was no house for her within the homestead and therefore she had to rent a house next to the deceased’s home. He testified that out of the hardship he was experiencing he went to Kisumu where he lived on the streets until Saidi Mboya took pity on him and took him in around 1987. He explained that he thereafter embraced the Muslim faith while living as part of the household of Saidi Mboya who was himself a Muslim. He therefore denied that Saidi Mboya, who is also deceased , was his biological father.
[19] The applicant testified that he was aware that the deceased had sold a portion of his land to the 2 nd respondent, Samwel Osewe Ochillo; and stated that he had no problem with the portion of land that was given to the 2 nd respondent. He acknowledged that land parcel No. 213 has been subdivided into several pieces and that there are about 10 families living on the property currently, some of whom are strangers to him.
[20] The applicant called two other witnesses to support his application for revocation of Grant. Tom Ochieng Osongo (OW2) is his stepbrother from the 1 st house. He is the eldest son of the deceased. He adopted his affidavit sworn on 3 rd April 2025. He confirmed that the estate of the deceased was distributed amongst the beneficiaries per house; and that the portion for the 2 nd house of Azziza Ojwok Osongo was given to her eldest son, Kamuzu. It was the evidence of OW2 that the applicant is entitled to a portion of the estate that was given to Kamuzu.
[21] Kennedy Ouma Otieno (OW3) explained that he is a cousin to the applicant, Tom Ochieng Osongo (OW1) and Kamuzu . He likewise adopted his affidavit sworn on 3 rd April 2025. He testified that Kamuzu is one of the applicant’s siblings and that he is the eldest son in the house of the late Azziza Ojwok, while the applicant is his follower. He also mentioned that their home is only 300 feet from the home of the deceased; and that they know each other well. He added that he went to school with the applicant and could vouch for the fact that he grew up in the deceased’s homestead.
[22] The applicant’s last witness was Lazarus Odhiambo (OW4). His evidence was that the went to school with the applicant and that he knew his sisters as well because they are all kinsmen. He testified that it was within his knowledge that Kamuzu was given the portion of land for the 2 nd house and therefore ought to have ensured that his siblings, including the applicant, were catered for.
[23] Hellen Nyakinda Osongo (the 1 st respondent), Samwuel Osewe Ochillo and Kamuzu all testified in opposition to the application. They adopted their respective Replying Affidavits as summarized herein above. Their evidence was that the applicant has no share in the estate of the deceased as he is not a biological son of the deceased.
[24] The parties were also given an opportunity to file written submissions. Accordingly, the applicant filed written submissions dated 12 th September 2025. He reiterated the factual background to his application and reiterated his assertion that he is a son of the deceased through his 2 nd wife, Azziza Ojuok . He urged the Court to believe his evidence as corroborated by the testimony of his eldest step-brother, Tom Osongo , who confirmed that the applicant was born long before his mother separated from the deceased.
[25] The applicant further submitted that the contention that he was not a son of the deceased, having been made by the respondents, it was upon them to prove it on a balance of probabilities. In his submission, that burden was not discharged. He therefore urged the Court to find that the respondents concealed material facts from the court concerning him and his siblings and thereby denying him a share of his lawful inheritance.
[26] With reference to Section 76 of the Laws of Succession Act, the applicant submitted that a grant of representation, whether or not confirmed, may at any time be revoked or annulled if any of the grounds set out in that provision has been shown. He submitted that he had adduced sufficient evidence to demonstrate that the respondents fraudulently obtained the Grant of Letters of Administration in respect of the estate of the deceased, granted that the fact of the existence of other siblings of Kamuzu from the 2 nd house was concealed to the court. He relied on Meru High Court Succession Cause No. 720 of 2013: In the Matter of the estate of Julius Ndubi Javan (Deceased) as well as the decision of the Court of Appeal in Mombasa Civil Appeal No.10 of 2012: Cosimo Plocino v Tony Kent & Another to buttress his arguments.
[27] The respondents filed written submissions dated 9 th December 2025. They likewise revisited the factual basis of the dispute and reiterated their stance that all the beneficiaries of the deceased have been taken care of as they distributed the estate in accordance with the number of houses comprising the deceased’s nuclear family. They asserted that the applicant was left out because he was neither a biological son of the deceased nor his dependant for purposes of Section 29 of the Law of Succession Act. They further submitted that it was incumbent upon the applicant to demonstrate this crucial aspect of his case by producing a Certificate of Birth, or DNA result showing that he was sired by the deceased. They urged the Court to dismiss the evidence to Tom Osongo as hearsay and of no help to the applicant.
[28] The respondents relied on In the Matter of the Estate of Veronica Njoki Wakagoto (Deceased) [2013] KEHC 1930 (KLR) and In the Matter of the Estate of Julius Chepkwony Arap Cheruiyot (Deceased) [2019] eKLR for the proposition that the applicant was duty-bound to prove paternity and dependency. They prayed for the dismissal of the Summons dated 3 rd March 2024.
[29] I have given due consideration to the evidence adduced herein by the applicant in the light of the pleadings filed herein and the proceedings held to date. There is no dispute that the deceased, George Osongo Swa , died intestate on 25 th February 2000 and that Grant of Letters of Administration Intestate was obtained by the two respondents in respect of the estate. The said Grant was confirmed on 23 rd November 2016 upon which the estate was distributed to the beneficiaries of the deceased.
[30] The applicant moved the Court seeking revocation of the said Grant, contending that it was obtained fraudulently. He relied on Section 76 of the Law of Succession Act . The provision states:
“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 assist 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.”
[31] Commenting on the import of the above provision in Re Estate of Wahome Mwenje Ngonoro (Deceased) [2016] eKLR, Hon. Mativo, J. (as he then was), took the following view, with which I entirely agree:
“…A close look at Section 76 shows that the grounds can be divided into the following categories:- the propriety of the grant making process; mal-administration or where the grant has become inoperative due to subsequent circumstances…”
[32] Thus, the only issue for determination is whether the Grant was obtained through fraud or concealment of material facts and if so, whether the applicant has made out a case for the issuance of the orders prayed for in his application dated 3 rd March 2024.
[33] In respect of the first issue, namely, whether the proceedings that led to the issuance of the Grant of Letters of Administration Intestate to the respondent are defective in substance, the Simplified Resource Tool on Inheritance and Related Family Practice in Keny a, published by the Judiciary, offers guidance, at Paragraph 7.3 thereof, as to the documents that must accompany a petition for Grant of Letters of Administration Intestate. They include:
[a] Form P&A 5, (Affidavit in Support of Petition)
[b] Form P&A 11, (Affidavit of Justification of Proposed Sureties)
[c] Form P&A 12 (Affidavit of Means)
[d] Form P&A 57 (Guarantee of Personal Sureties)
[e] Original Death Certificate or certified copy, or an order of presumption of death;
[f] Full inventory of assets and liabilities of the deceased at the time of death, including estimated value,
[g] List of heirs
[h] Letter from the Area Chief introducing the petitioner and heirs
[i] Consents, where applicable
[34] A perusal of the court record shows that this matter was initiated in Kisii and that the original file was misplaced and therefore the respondents had to file an application for reconstitution of the file. A copy of the Certificate of Confirmation filed herein shows that the estate was shared out in accordance with the number of houses and that the 2 nd respondent was also given his portion as a purchaser. The question to pose is whether indeed the 2 nd respondent, as a purchaser and therefore a creditor to the estate, was entitled in law to petition for Grant of Letters of Administration Intestate in respect of the estate of the deceased.
[35] Section 66 of the Law of Succession provides that:
“When a deceased has died intestate, the court shall, save as otherwise expressly provided, have a final discretion as to the person or persons to whom a grant of letters of administration shall, in the best interests of all concerned, be made, but shall, without prejudice to that discretion, accept as a general guide the following order of preference-
(a) surviving spouse or spouses, with or without association of other beneficiaries;
(b) other beneficiaries entitled on intestacy, with priority according to their respective beneficial interests as provided by Part V;
(c) the Public Trustee; and
(d) creditors.”
[36] Accordingly, is plain therefore that the 2 nd respondent as a purchaser had no right to supersede the children of the deceased for purposes of the right to petition for Grant of Letters of Administration and had no justification for so applying when the deceased was survived by some of his widows and children. Moreover, Rule 26(2) of the Probate and Administration Rules, is explicit that:
An application for a grant where the applicant is entitled in a degree equal to or lower than that of any other person shall, in default of renunciation, or written consent in Form 38 or 39, by all persons so entitled in equality or priority, be supported by an affidavit of the applicant and such other evidence as the court may require.
[37] From the standpoint of the applicant, he did not renounce his rights or consent to the appointment of the 2 nd respondent as an administrator; and therefore that appointment was wrongly made. As for the 1 st respondent, being the widow of the deceased, she ranked higher in terms of priority to the applicant and therefore her appointment cannot be faulted.
[38] The respondents made heavy weather of their assertion that the applicant is not a biological son of the deceased and therefore has no share to his estate. They proposed that the paternity of the applicant be determined at his expense and urged the Court to find that he did not discharge the burden of proof in that regard.
[39] It is a cardinal principle that he who alleges must prove. Indeed, Section 107(1) of the Evidence Act, CAP 80, provides that:
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 .
[40] The applicant testified that he was one of the sons of the deceased as the second born son of the deceased and his 2 nd wife, Azziza Ojuok . He also adduced supporting evidence through the eldest son of the deceased, Tom Osongo, and neighbours and kinsmen, Kennedy Ouma Otieno and Lazarus Odhiambo adduced evidence to show that he is one of the deceased’s sons; and that he was only taken in by Saidi Mboya after he ran away from home to live on the streets in Kisumu Town. The parties conceded that Azziza Ojuok was the 2 nd wife of the deceased; and that she was the mother of Kamuzu. Since it was the respondents who disputed the applicant’s paternity, the burden of proof was on them to prove that assertion.
[41] It is immaterial that the mother of the applicant was separated from the deceased because, for purposes of the Law of Succession Act, a “wife” is defined, in Section 3 thereof, to include “…a wife who is separated from her husband…” . In particular, Section 29(a) of the Law of Succession Act provides that:
“…“dependant” means—
(a) The wife or wives, or former wife or wives, and the children of the deceased whether or not maintained by the deceased immediately prior to his death;
[42] In the light of the foregoing, it is manifest that the applicant as well as his siblings are the children of the deceased for purposes of the Law of Succession Act and had every right to claim a share of the estate of the deceased but were deliberately left out by the respondents. I am therefore satisfied that the Grant of Letters of Administration Intestate issued herein to the respondents was obtained by concealment of material information to the Court by not disclosing the existence of the applicant and his siblings.
[43] Section 47 of the Law of Succession Act is explicit that:
The High Court shall have jurisdiction to entertain any application and determine any dispute under this Act and to pronounce such decrees and make such orders therein as may be expedient…”
[44] Moreover, Rule 73 of the Probate and Administration Rules provides that:
Nothing in these Rules shall limit or otherwise affect the inherent power of the court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the court.
[45] In the premises, since there is no dispute regarding the portion of the estate that was transmitted to the other houses or to the 2 nd respondent as a purchaser for value, the orders that commend themselves to the Court and which I hereby make are as follows:
[a] That the Grant of Letters of Administration Intestate issued herein to the two respondents be and is hereby revoked, the same having been obtained in contravention of Section 76(b) of the Law of Succession Act.
[b] That a fresh Grant of Letters of Administration Intestate to the estate of the deceased be issued in the names of the 1 st respondent, being the only surviving widow of the deceased, jointly with Tom Ochieng Osongo , the eldest son of the deceased, limited for the purpose of ensuring that the applicant is given his share of the portion of the estate that was given to the 2 nd house of the late Azziza Ojwok.
[c] The two administrators to thereafter file an application for confirmation of the fresh Grant within one month of its issuance, with a proposed Mode of Redistribution for the portion of the estate that was given to Kamuzu Banda Osongo as between him and his siblings in the 2 nd house.
[d] Each party to bear own costs of the application.
It is so ordered.
DATED SIGNED AND DELIVERED VIRTUALLY THIS 12 TH DAY OF JUNE 2026
[a] That the respondents concealed material facts and failed to disclose to the Court that he, the applicant herein, is one of the rightful surviving beneficiaries of the deceased.
[b] That the respondents were not fair during their application for subdivision of the deceased’s property in failing to include the applicant or to obtain his consent to the subdivision.
[c] That the applicant stands to suffer irreparable damage if the Grant of Letters of Administration Intestate issued to the respondents is not revoked.
[2] In his Supporting Affidavit sworn on 4 th March 2024, the applicant averred that he is one of the sons of the deceased; and that the deceased died intestate on the 25 th February 2000. The applicant explained that at some point in his lifetime, the deceased obtained a loan from a financial institution and used his land as security; and that he later approached the 2 nd respondent, Mr. Samwel Ochillo , Advocate, for financial assistance in offsetting the said loan. The applicant further averred that, after the death of his parents, and without his knowledge, his stepmother, Hellen Nyakinda Osongo , who is the 1 st respondent herein, instituted a Petition for Grant of Letters of Administration jointly with the 2 nd respondent in respect of the estate of the deceased.
[3] The applicant further deposed that upon conducting his own due diligence, he found out that his name had been omitted from the list of beneficiaries. He therefore filed the instant application, contending that the Grant was obtained fraudulently and without full disclosure to the Court of the material facts relating to the subject estate; thereby disinheriting him from his rightful share of the estate. He annexed copies of the Grant of Letters of Administration issued to the two respondents, the Green Card for land parcel number West Kasipul/Kasimba/213 and the Certificate of Death in respect of the deceased.
[4] The respondents opposed the application. In her Replying Affidavit sworn on 18 th November 2024, the 1 st respondent confirmed that she is the only surviving widow of the deceased, George Osongo Swa ; and that she was the 5 th wife. She further averred that the mother of the applicant, Azziza Ojwok Osongo, was the 2 nd wife; and that Azziza Ojwok and the deceased separated in the 1980s after having had one child. It was her assertion that the applicant’s mother thereafter got married to one Saidi Mboya in Kisumu and were blessed with five other children, including the applicant.
[5] The 1 st respondent pointed out that, since the applicant’s mother had contracted another marriage, she was not allowed by the elders to come back to the deceased’s homestead as a widow to attend the funeral of the deceased. She however acknowledged that Kamuzu Banda Osongo , cited in the Replying Affidavits as the respondent, and who is a brother to the applicant, was given a portion of land from the estate where he is living to date. She contended that the applicant is the son of Saidi Mboya and therefore has no share in the estate of the deceased. She added that the applicant has settled in Ndhiwa where his home is situated.
[6] Regarding the 2 nd respondent’s interest, the 1 st respondent averred that the family members of the deceased sat down and agreed that he be given his portion of land as per the agreement he entered into with the deceased during his lifetime. She added that the family also agreed and authorized Kamuzu Banda Osongo (hereinafter, “Kamuzu”) to apply for Grant of Letters of Administration in respect of the estate of the deceased; which he did in Oyugis SRM’s Succession Cause No. 90 of 2004 . The 1 st respondent further averred that Kamuzu was consequently issued with a Grant; which Grant was confirmed on the 26 th January 2005.
[7] At paragraph 18 of her Replying Affidavit, the 1 st respondent deposed that, despite the confirmation of the Grant issued by Oyugis SRM’s Court, Kamuzu failed, neglected and/or declined to distribute the estate of the deceased, more particularly LR No. WEST KASIPUL/KASIMBA/213, to the dependants of the deceased. She also stated that the respondent instead proceeded to sell portions of the estate to third parties, including one Tom Sipul , without reference to the other beneficiaries. Hence, they applied for revocation of the Grant issued to Kamuzu and were themselves appointed as the administrators of the deceased’s estate.
[8] The 1 st respondent further averred that, upon the Grant issued to them being confirmed, they proceeded to distribute the estate to the beneficiaries of the deceased as per the five houses; and none of them has ever complained about the manner in which distribution was carried out. She added that the beneficiaries of the deceased have settled as per the distribution and some have proceeded to sell their respective portions to third parties; while others have buried their loved ones on the portions allocated to them.
[9] She reiterated her stance that the applicant is not a son of the deceased and proposed that a DNA test be conducted to determine his paternity if the applicant was ready to cater for the costs of the exercise that would include exhumation of the body of the deceased. In the alternative, the 1 st respondent averred that, should it be found that the applicant has a valid claim to a share of the estate then it is Kamuzu who should share with him his portion of land that was given to the 2 nd House. She otherwise prayed for the dismissal of the application.
[10] The 2 nd respondent, Samwel Osewe Ochillo , also filed a Replying Affidavit to the application, sworn on 21 st November 2024. He deposed that sometime in the years 1996 and 1997, he entered into a land sale agreement with the deceased, George Osongo Swa , in respect of a portion of his land LR No. WEST KASIPUL/KASIMBA/213, and that by the time of his demise, the deceased had not transferred the purchased portion to him. He further averred that he was aware that subsequently, the family members of the deceased sat down and authorized Kamuzu to petition for Grant of Letters of Administration on behalf of the family, acknowledging his land sale agreement with the deceased as a liability to the estate.
[11] The 2 nd respondent further averred that upon obtaining the Grant as well as a Certificate of Confirmation, Kamuzu failed, neglected and/or declined to distribute the estate as agreed, but instead started selling portions of LR No. WEST KASIPUL/KASIMBA/213 to third parties, such as one Tom Sipul . He reiterated the averments of the 1 st respondent as to how they came to be appointed as administrators and confirmed that in the ensuing distribution, he was given his portion of the estate, measuring one acre, pursuant to his land sale agreement with the deceased.
[12] At paragraph 18 of his Replying Affidavit, the 2 nd respondent averred that his interest as a creditor was duly recognized in Oyugis SRM Succession Cause No. 90 of 2004; and that he has already been given his portion, albeit a smaller one in size. He added that none of the other beneficiaries are complaining about the manner in which distribution was done. He also averred that no complaint has been raised by the applicant about the land sale agreement he had with the deceased in his lifetime. The 2 nd applicant annexed a copy of the agreement to his affidavit, among other documents, and prayed for the dismissal of the application, contending that the applicant has not met the minimum threshold for revocation of Grant.
[13] Kamuzu also filed his Replying Affidavit in opposition to the application. He reiterated the contents of the affidavits filed by the respondents and added that he is the son of the deceased from the 2 nd house of Azziza Ojuok Osongo . He also pointed out that he is the only child of the deceased from that house. Kamuzu further averred that his mother separated from the deceased around 1970 when he was young; and that he was brought up by his grandmother; and upon the death of his grandmother around 1974/1975, he was taken in by his step mother, Jane Osongo . He added that upon the death of Jane Osongo in 1993, his father handed him over to the 1 st respondent.
[14] Kamuzu further stated that, after separating from his father, his mother remarried one Saidi Mboya in Kisumu and settled in Kondele, where she had five other children, including the applicant. He also stated that his mother later differed with Saidi Mboya and returned to Oyugis with her five children in the hopes of resuming cohabitation with his father, but his father declined and wanted nothing to do with her. He added that when the deceased died in 2000, his mother, the applicant and his siblings did not attend the funeral as no house or home had been constructed for his mother during the deceased’s lifetime. He added that, when his mother died in 2003, he was prevailed upon by his relatives to inter her body on the piece of land he inherited from the estate of the deceased as there was no burial place for her in the Osongo family set up; and so her body was buried on his own portion of the estate land.
[15] Kamuzu conceded that the deceased’s family met and appointed him as their representative, with authority to apply for Grant of Letters of Administration in respect of the estate of the deceased. He averred that he proceeded to file Oyugis SRM’s Succession Cause No. 90 of 2004 and the Grant issued to him was confirmed on 26 th January 2005. He further conceded that he failed to distribute the estate as expected; and that due to his failure to diligently administer the estate the Grant was revoked and he was replaced by the two respondents.
[16] At paragraph 18 of his affidavit, Kamuzu averred that the distribution was thereafter effected and all the five houses of the deceased were provided for; and none of them has had any complaint thereafter. He denied that the applicant is a son to the deceased and asserted that he is merely out to cause disunity and dispossess the rightful beneficiaries of the deceased. He likewise proposed that DNA be conducted at the applicant’s expense to determine his paternity. Kamuzu posited that the applicant ought to claim his inheritance from the estate of his biological father, one Saidi Mboya.
[17] The application was canvassed by way of viva voce evidence in which the witnesses adopted their respective affidavits. The applicant testified on 28 th May 2025. He adopted his Supporting Affidavit sworn on 4 th March 2024 as well as his Further Affidavit sworn on 3 rd April 2024. The contents of those two affidavits have been summarized herein above. In cross-examination, the applicant reiterated that the purpose of filing the application was to obtain his rightful share of the estate of his deceased father. In his assertion, he was supposed to receive land parcel No. 2106 as shown in the Mutation Form which he produced as an exhibit herein.
[18] Regarding his relationship with Saidi Mboya , the applicant explained that when his mother returned to Oyugis to resume cohabitation with the deceased there was no house for her within the homestead and therefore she had to rent a house next to the deceased’s home. He testified that out of the hardship he was experiencing he went to Kisumu where he lived on the streets until Saidi Mboya took pity on him and took him in around 1987. He explained that he thereafter embraced the Muslim faith while living as part of the household of Saidi Mboya who was himself a Muslim. He therefore denied that Saidi Mboya, who is also deceased , was his biological father.
[19] The applicant testified that he was aware that the deceased had sold a portion of his land to the 2 nd respondent, Samwel Osewe Ochillo; and stated that he had no problem with the portion of land that was given to the 2 nd respondent. He acknowledged that land parcel No. 213 has been subdivided into several pieces and that there are about 10 families living on the property currently, some of whom are strangers to him.
[20] The applicant called two other witnesses to support his application for revocation of Grant. Tom Ochieng Osongo (OW2) is his stepbrother from the 1 st house. He is the eldest son of the deceased. He adopted his affidavit sworn on 3 rd April 2025. He confirmed that the estate of the deceased was distributed amongst the beneficiaries per house; and that the portion for the 2 nd house of Azziza Ojwok Osongo was given to her eldest son, Kamuzu. It was the evidence of OW2 that the applicant is entitled to a portion of the estate that was given to Kamuzu.
[21] Kennedy Ouma Otieno (OW3) explained that he is a cousin to the applicant, Tom Ochieng Osongo (OW1) and Kamuzu . He likewise adopted his affidavit sworn on 3 rd April 2025. He testified that Kamuzu is one of the applicant’s siblings and that he is the eldest son in the house of the late Azziza Ojwok, while the applicant is his follower. He also mentioned that their home is only 300 feet from the home of the deceased; and that they know each other well. He added that he went to school with the applicant and could vouch for the fact that he grew up in the deceased’s homestead.
[22] The applicant’s last witness was Lazarus Odhiambo (OW4). His evidence was that the went to school with the applicant and that he knew his sisters as well because they are all kinsmen. He testified that it was within his knowledge that Kamuzu was given the portion of land for the 2 nd house and therefore ought to have ensured that his siblings, including the applicant, were catered for.
[23] Hellen Nyakinda Osongo (the 1 st respondent), Samwuel Osewe Ochillo and Kamuzu all testified in opposition to the application. They adopted their respective Replying Affidavits as summarized herein above. Their evidence was that the applicant has no share in the estate of the deceased as he is not a biological son of the deceased.
[24] The parties were also given an opportunity to file written submissions. Accordingly, the applicant filed written submissions dated 12 th September 2025. He reiterated the factual background to his application and reiterated his assertion that he is a son of the deceased through his 2 nd wife, Azziza Ojuok . He urged the Court to believe his evidence as corroborated by the testimony of his eldest step-brother, Tom Osongo , who confirmed that the applicant was born long before his mother separated from the deceased.
[25] The applicant further submitted that the contention that he was not a son of the deceased, having been made by the respondents, it was upon them to prove it on a balance of probabilities. In his submission, that burden was not discharged. He therefore urged the Court to find that the respondents concealed material facts from the court concerning him and his siblings and thereby denying him a share of his lawful inheritance.
[26] With reference to Section 76 of the Laws of Succession Act, the applicant submitted that a grant of representation, whether or not confirmed, may at any time be revoked or annulled if any of the grounds set out in that provision has been shown. He submitted that he had adduced sufficient evidence to demonstrate that the respondents fraudulently obtained the Grant of Letters of Administration in respect of the estate of the deceased, granted that the fact of the existence of other siblings of Kamuzu from the 2 nd house was concealed to the court. He relied on Meru High Court Succession Cause No. 720 of 2013: In the Matter of the estate of Julius Ndubi Javan (Deceased) as well as the decision of the Court of Appeal in Mombasa Civil Appeal No.10 of 2012: Cosimo Plocino v Tony Kent & Another to buttress his arguments.
[27] The respondents filed written submissions dated 9 th December 2025. They likewise revisited the factual basis of the dispute and reiterated their stance that all the beneficiaries of the deceased have been taken care of as they distributed the estate in accordance with the number of houses comprising the deceased’s nuclear family. They asserted that the applicant was left out because he was neither a biological son of the deceased nor his dependant for purposes of Section 29 of the Law of Succession Act. They further submitted that it was incumbent upon the applicant to demonstrate this crucial aspect of his case by producing a Certificate of Birth, or DNA result showing that he was sired by the deceased. They urged the Court to dismiss the evidence to Tom Osongo as hearsay and of no help to the applicant.
[28] The respondents relied on In the Matter of the Estate of Veronica Njoki Wakagoto (Deceased) [2013] KEHC 1930 (KLR) and In the Matter of the Estate of Julius Chepkwony Arap Cheruiyot (Deceased) [2019] eKLR for the proposition that the applicant was duty-bound to prove paternity and dependency. They prayed for the dismissal of the Summons dated 3 rd March 2024.
[29] I have given due consideration to the evidence adduced herein by the applicant in the light of the pleadings filed herein and the proceedings held to date. There is no dispute that the deceased, George Osongo Swa , died intestate on 25 th February 2000 and that Grant of Letters of Administration Intestate was obtained by the two respondents in respect of the estate. The said Grant was confirmed on 23 rd November 2016 upon which the estate was distributed to the beneficiaries of the deceased.
[30] The applicant moved the Court seeking revocation of the said Grant, contending that it was obtained fraudulently. He relied on Section 76 of the Law of Succession Act . The provision states:
“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 assist 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.”
[31] Commenting on the import of the above provision in Re Estate of Wahome Mwenje Ngonoro (Deceased) [2016] eKLR, Hon. Mativo, J. (as he then was), took the following view, with which I entirely agree:
“…A close look at Section 76 shows that the grounds can be divided into the following categories:- the propriety of the grant making process; mal-administration or where the grant has become inoperative due to subsequent circumstances…”
[32] Thus, the only issue for determination is whether the Grant was obtained through fraud or concealment of material facts and if so, whether the applicant has made out a case for the issuance of the orders prayed for in his application dated 3 rd March 2024.
[33] In respect of the first issue, namely, whether the proceedings that led to the issuance of the Grant of Letters of Administration Intestate to the respondent are defective in substance, the Simplified Resource Tool on Inheritance and Related Family Practice in Keny a, published by the Judiciary, offers guidance, at Paragraph 7.3 thereof, as to the documents that must accompany a petition for Grant of Letters of Administration Intestate. They include:
[a] Form P&A 5, (Affidavit in Support of Petition)
[b] Form P&A 11, (Affidavit of Justification of Proposed Sureties)
[c] Form P&A 12 (Affidavit of Means)
[d] Form P&A 57 (Guarantee of Personal Sureties)
[e] Original Death Certificate or certified copy, or an order of presumption of death;
[f] Full inventory of assets and liabilities of the deceased at the time of death, including estimated value,
[g] List of heirs
[h] Letter from the Area Chief introducing the petitioner and heirs
[i] Consents, where applicable
[34] A perusal of the court record shows that this matter was initiated in Kisii and that the original file was misplaced and therefore the respondents had to file an application for reconstitution of the file. A copy of the Certificate of Confirmation filed herein shows that the estate was shared out in accordance with the number of houses and that the 2 nd respondent was also given his portion as a purchaser. The question to pose is whether indeed the 2 nd respondent, as a purchaser and therefore a creditor to the estate, was entitled in law to petition for Grant of Letters of Administration Intestate in respect of the estate of the deceased.
[35] Section 66 of the Law of Succession provides that:
“When a deceased has died intestate, the court shall, save as otherwise expressly provided, have a final discretion as to the person or persons to whom a grant of letters of administration shall, in the best interests of all concerned, be made, but shall, without prejudice to that discretion, accept as a general guide the following order of preference-
(a) surviving spouse or spouses, with or without association of other beneficiaries;
(b) other beneficiaries entitled on intestacy, with priority according to their respective beneficial interests as provided by Part V;
(c) the Public Trustee; and
(d) creditors.”
[36] Accordingly, is plain therefore that the 2 nd respondent as a purchaser had no right to supersede the children of the deceased for purposes of the right to petition for Grant of Letters of Administration and had no justification for so applying when the deceased was survived by some of his widows and children. Moreover, Rule 26(2) of the Probate and Administration Rules, is explicit that:
An application for a grant where the applicant is entitled in a degree equal to or lower than that of any other person shall, in default of renunciation, or written consent in Form 38 or 39, by all persons so entitled in equality or priority, be supported by an affidavit of the applicant and such other evidence as the court may require.
[37] From the standpoint of the applicant, he did not renounce his rights or consent to the appointment of the 2 nd respondent as an administrator; and therefore that appointment was wrongly made. As for the 1 st respondent, being the widow of the deceased, she ranked higher in terms of priority to the applicant and therefore her appointment cannot be faulted.
[38] The respondents made heavy weather of their assertion that the applicant is not a biological son of the deceased and therefore has no share to his estate. They proposed that the paternity of the applicant be determined at his expense and urged the Court to find that he did not discharge the burden of proof in that regard.
[39] It is a cardinal principle that he who alleges must prove. Indeed, Section 107(1) of the Evidence Act, CAP 80, provides that:
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 .
[40] The applicant testified that he was one of the sons of the deceased as the second born son of the deceased and his 2 nd wife, Azziza Ojuok . He also adduced supporting evidence through the eldest son of the deceased, Tom Osongo, and neighbours and kinsmen, Kennedy Ouma Otieno and Lazarus Odhiambo adduced evidence to show that he is one of the deceased’s sons; and that he was only taken in by Saidi Mboya after he ran away from home to live on the streets in Kisumu Town. The parties conceded that Azziza Ojuok was the 2 nd wife of the deceased; and that she was the mother of Kamuzu. Since it was the respondents who disputed the applicant’s paternity, the burden of proof was on them to prove that assertion.
[41] It is immaterial that the mother of the applicant was separated from the deceased because, for purposes of the Law of Succession Act, a “wife” is defined, in Section 3 thereof, to include “…a wife who is separated from her husband…” . In particular, Section 29(a) of the Law of Succession Act provides that:
“…“dependant” means—
(a) The wife or wives, or former wife or wives, and the children of the deceased whether or not maintained by the deceased immediately prior to his death;
[42] In the light of the foregoing, it is manifest that the applicant as well as his siblings are the children of the deceased for purposes of the Law of Succession Act and had every right to claim a share of the estate of the deceased but were deliberately left out by the respondents. I am therefore satisfied that the Grant of Letters of Administration Intestate issued herein to the respondents was obtained by concealment of material information to the Court by not disclosing the existence of the applicant and his siblings.
[43] Section 47 of the Law of Succession Act is explicit that:
The High Court shall have jurisdiction to entertain any application and determine any dispute under this Act and to pronounce such decrees and make such orders therein as may be expedient…”
[44] Moreover, Rule 73 of the Probate and Administration Rules provides that:
Nothing in these Rules shall limit or otherwise affect the inherent power of the court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the court.
[45] In the premises, since there is no dispute regarding the portion of the estate that was transmitted to the other houses or to the 2 nd respondent as a purchaser for value, the orders that commend themselves to the Court and which I hereby make are as follows:
[a] That the Grant of Letters of Administration Intestate issued herein to the two respondents be and is hereby revoked, the same having been obtained in contravention of Section 76(b) of the Law of Succession Act.
[b] That a fresh Grant of Letters of Administration Intestate to the estate of the deceased be issued in the names of the 1 st respondent, being the only surviving widow of the deceased, jointly with Tom Ochieng Osongo , the eldest son of the deceased, limited for the purpose of ensuring that the applicant is given his share of the portion of the estate that was given to the 2 nd house of the late Azziza Ojwok.
[c] The two administrators to thereafter file an application for confirmation of the fresh Grant within one month of its issuance, with a proposed Mode of Redistribution for the portion of the estate that was given to Kamuzu Banda Osongo as between him and his siblings in the 2 nd house.
[d] Each party to bear own costs of the application.
It is so ordered.
DATED SIGNED AND DELIVERED VIRTUALLY THIS 12 TH DAY OF JUNE 2026