1. Before the Court is a summons for revocation and or annulment of grant dated 28th October 2024 vide which the applicant seeks the following orders:-
(1) That the grant issued to Michelle Olwero Eshutchi and Richards Litunya Eshutchi on 12th April 2024 be revoked and or annulled;
(2) The cost of the application be provided for.
2. The grounds upon which the application is brought is that the proceedings to obtain the grant were defective in substance in as much as the administrators/respondents, who are the children of the deceased, petitioned for the grant without involving the applicant, who as she claims, is the sole surviving widow of the deceased and therefore has a life, interest in the estate. She stated that she got married to the deceased under the customary laws of the Kisa people and cohabited together with him for 8 years in Mombasa. She asserted that their union was blessed with two issues, Mitch Litunya Eshutchi and Margaret Amboko Eshutchi.
3. She urged that the administrators/applicants not disclose a full inventory of the assets of the deceased, including a 1-acre piece of land at Yala-Jina town, Sacco savings at Ndege Chai Sacco Ltd and death benefits amounting to Kes.14,312,1721/- at Kingsland Court Trustees Services Ltd. The applicant reiterated these averments in the affidavit she swore on 28th October 2024. In paragraph 8 of her affidavit, she deposed that:-
“I have no objection to the Petitioners being given their respective shares as beneficiaries to the estate, but it is imperative that I be accorded the necessary recognition and priority as the deceased’s sole surviving widow to administer the estate.”
4. Although her deposition made averments that would ordinarily require corroboration and documentary proof, she produced neither.
5. The application was opposed. Ms Michelle Olwero Eshutchi was deposed to an affidavit dated 7th November 2024, in which she denied that the Applicant was ever married to the deceased, and in particular, that she contracted a customary marriage with her father under the Luhya (Kisa) customary law. In her view, the contention that the applicant cohabited with her father was a lie. Ms Eshutchi deposed that the applicant was one of her father’s many lovers.
6. She stated categorically that there was no customary marriage between the two as she would have been invited to attend, being her father’s favourite daughter. Ms Eshutchi castigated the applicant for not providing documentary proof of her allegations and contrasted her conduct with theirs. In her view, she and her brother acted in good faith and included the children of the applicant as beneficiaries.
7. The application was canvassed by way of Written submissions.
8. The submission of the applicant is dated 19th December 2024. The Applicant's counsel submitted that as a widow, she had a life interest in the estate of the deceased. To support her contention that she was a widow she relied on the letter of the chief of Yala Township in which she was indicated as a widow. She accused the applicants of not making a full disclosure of the estate of the deceased.
9. In support of her case, she relied on the case of re Estate of Festo Akwela Kusebe alias Akwela Kutsebe (deceased) [2014]eKLR, re Estate of Julius Ndubi Javan (deceased) [2018]eKLR and re Estate of Elijah Onyango Abeka (deceased) [2024]eKLR. In the latter case, this Court found that the failure of the applicants to include the widow of a deceased polygamous African man was a ground for revocation of the grant.
10. Counsel for the applicant submitted that the non-disclosure of her status and interest was deliberate and was a calculated move aimed at deriving the applicant of her life interest over the estate, something she described as being dishonest and improper for the administrators to do. The applicant thus prayed that her application be allowed with costs.
11. The submissions of the respondent are dated 3rd December 2024. Counsel for the respondents/administrators submitted that the deceased contracted a statutory marriage to Ms Mary Nandi, which had not been dissolved at the time of his death. That being the case, he lacked the capacity to marry the applicant.
12. It was submitted that the applicant was one of the deceased's many lovers. Regarding the allegation that she cohabited with the deceased for 8 years, it was urged that she visited his house a few times but that that did not make him her husband or convert their relationship into a marriage.
13. The administrators/respondents submitted that the applicant produced no documentary proof of her allegation, nor was a notification of customary marriage produced under sections 44 and 45 of the Marriage Act, 2014.
14. To the respondents, the applicant, as a lover, had no standing as a beneficiary. Their counsel submitted that section 66 of the Law of Succession Act provided for the order of priority of people who could apply for a grant and that a lover was not listed therein.
15. Counsel averred that there had been no lies nor prevarications nor dissimulation and no misinformation as would justify the revocation of the grant.
16. Based on the foregoing it was urged that the application ought to be dismissed.
17. I have considered the application, the responses thereto as well as the written submissions of the parties. It is necessary that I set out the provision of section 76 of the Law of Succession Act. It 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.”
18. The foregoing provision of the Law of Succession Act was interpreted in the case of re Estate of Prisca Ongayo Nande (deceased) [2020]eKLR, where it was stated that:-
“Under section 76, a court may revoke a grant so long as the grounds listed above are disclosed, either on its motion or on the application of a party. A grant of letters of administration may be revoked on three general grounds. The first is where the process of obtaining the grant was attended by problems. The first would be where the process was defective, either because some mandatory procedural step was omitted, or the persons applying for representation was not competent or suitable for appointment, or the deceased died testate having made a valid will, and then a grant or letters of administration intestate was made instead of a grant of probate, or vice versa. It could also be that the process was marred by fraud and misrepresentation or concealment of matters, such as where some survivors are not disclosed or the applicant lies that he is a survivor when he is not, among other reasons. The second general ground is where the grant was obtained procedurally, but the administrator, thereafter, got into problems with the exercise of administration, such as where he fails to apply for confirmation of grant within the time allowed, or he fails to proceed diligently with administration, or fails to render accounts as and when required. The third general ground is where the grant has become useless and inoperative following subsequent circumstances, such as where a sole administrator dies, leaving behind no administrator to carry on the exercise, or where the sole administrator loses the soundness of his mind for whatever reason or even becomes physically infirm to an extent of being unable to carry out his duties as administrator, or the sole administrator is adjudged bankrupt and, therefore, becomes unqualified to hold any office of trust.”
19. Although the Applicant alleged fraud, she provided no documentary evidence showing that the applicants failed to include all the assets of the deceased or otherwise corroborated her case. As the person making a claim, she had the burden, under the Evidence Act, of proving it.
20. Sections 107, 108 and 109 of the Evidence Act states that:-
“107. Burden of proof
(1) 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.
(2) When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person.
108. Incidence of burden
The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side.
109. Proof of particular fact
The burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person.”
21. it is an established principle of law that fraud must be specifically pleaded and proved. The Court, in the case of Vijay Morjaria vs. Nansingh Madhusingh Darbar & another [2002] eKLR, stated as follows
“It is well established that fraud must be specifically pleaded and that particulars of the fraud alleged must be stated on the face of the pleading. The acts alleged to be fraudulent must, of course, be set out, and then it should be stated that these acts were done fraudulently. It is also settled law that fraudulent conduct must be distinctly alleged and as distinctly proved, and it is not allowable to leave fraud to be inferred from the facts.”
22. Save for alleging fraud, the applicant made no effort at all to prove it. The standard of proof applicable to fraud is higher than the balance of probability but less than that applicable in criminal proceedings.
23. The foregoing notwithstanding, was she married to the deceased under the customary law of the Kisa community? As she was the one alleging such a marriage, she bore the burden of proof. Did she discharge the said burden? In my view, if she intended to prove such a marriage, she could have shown that her marriage was registered under sections 44 and 45 of the Marriage 2014 or led evidence to prove the said fact.
24. In re Estate of DMM (deceased) [2018]eKLR, the Court expressed itself as follows:-
“66. Further in the case of Hortensiah Wanjiku Yawe –vs- The Public Trustee, Civil Appeal No. 13 of 1976, the court held:-The onus of proving customary law marriage is generally on the party who claims it. The standard of proof is the one usually for a civil action namely “on the balance of probabilities.” Evidence as to the formalities required for a customary law marriage must be proved to that standard. Long cohabitation as a man and wife gives rise to a presumption of marriage in favour of the party asserting it. Only cogent evidence to the contrary can rebut the presumption. If specific ceremonies and rituals are not fully accomplished this does not invalidate such a marriage.
67. From the foregoing, I am satisfied that the most important element of a Kamba customary marriage is the payment of 3 goats (mbui sya ntheo) by the groom. From the evidence on record, the above aspect aspects about the ceremony on alleged marriage of protester and deceased are lacking.
68. The protestor has not discharged the burden of proving the existence of a Kamba customary marriage between herself and the deceased bearing that in any customary law in relation to marriage, the families of both the husband and the wife comes together for mutual undertaking and agreement to the aspect of dowry price. Witnesses are engaged to witness. The protestor has failed to call any of her witnesses to confirm the matters of her dowry payment.”
25. Similarly, the Court, in the case of re Estate of Julius Kairu Kamau [2020]eKLR, stated that:-
“It is noteworthy in this case, that the Applicant has not led evidence as to what ceremony took place to signify her marriage to the deceased, apart from stating that she was married to the deceased under Kikuyu customary law. She did not tender any evidence to support her assertion that a Kikuyu customary marriage ceremony, if any, took place. The indication that her identity card bears the name ‘Kairu’ is not sufficient evidence as proof of a marriage between herself and the deceased.”
Based on that, the Court declined to find that the applicant, in the said case, was a wife of the deceased.
26. The Applicant provided no evidence that would convince this court that, indeed, she was the wife of the deceased. In the circumstances, I do not agree that the applicant was a spouse of the deceased.
27. Since it hasn’t been shown that there was material non-disclosure or fraud or that the applicant was a spouse of the deceased, there is not, in my view, a justification for the revocation of the grant. Revocation of the grant has been said to be a drastic remedy that the Court should give only where the same is merited. In the case of Albert Imbuga Kisigwa vs Recho Kavai Kisigwa [2016]eKLR, the Court stated as follows:-
“[13] Power to revoke a grant is a discretionary power that must be exercised judiciously and only on sound grounds. It is not discretion to be exercised whimsically or capriciously. There must be evidence of wrongdoing for the court to invoke section 76 and order to revoke or annul a grant. And when a court is called upon to exercise this discretion, it must take into account the interests of all beneficiaries entitled to the deceased’s estate and ensure that the action taken will be for the interest of justice.”
28. Under the circumstances, I dismiss the summon for revocation of the grant for lacking merit and order that the administrators/respondents file summons for confirmation of the grant within 30 days of the date of this ruling.
29. As this is a succession matter between family members, each party shall bear his/her/their own costs.
30. Orders accordingly
Dated and signed at Mombasa on this 14th day of February 2025. Delivered virtually through Microsoft TEAMS.
(1) That the grant issued to Michelle Olwero Eshutchi and Richards Litunya Eshutchi on 12th April 2024 be revoked and or annulled;
(2) The cost of the application be provided for.
2. The grounds upon which the application is brought is that the proceedings to obtain the grant were defective in substance in as much as the administrators/respondents, who are the children of the deceased, petitioned for the grant without involving the applicant, who as she claims, is the sole surviving widow of the deceased and therefore has a life, interest in the estate. She stated that she got married to the deceased under the customary laws of the Kisa people and cohabited together with him for 8 years in Mombasa. She asserted that their union was blessed with two issues, Mitch Litunya Eshutchi and Margaret Amboko Eshutchi.
3. She urged that the administrators/applicants not disclose a full inventory of the assets of the deceased, including a 1-acre piece of land at Yala-Jina town, Sacco savings at Ndege Chai Sacco Ltd and death benefits amounting to Kes.14,312,1721/- at Kingsland Court Trustees Services Ltd. The applicant reiterated these averments in the affidavit she swore on 28th October 2024. In paragraph 8 of her affidavit, she deposed that:-
“I have no objection to the Petitioners being given their respective shares as beneficiaries to the estate, but it is imperative that I be accorded the necessary recognition and priority as the deceased’s sole surviving widow to administer the estate.”
4. Although her deposition made averments that would ordinarily require corroboration and documentary proof, she produced neither.
5. The application was opposed. Ms Michelle Olwero Eshutchi was deposed to an affidavit dated 7th November 2024, in which she denied that the Applicant was ever married to the deceased, and in particular, that she contracted a customary marriage with her father under the Luhya (Kisa) customary law. In her view, the contention that the applicant cohabited with her father was a lie. Ms Eshutchi deposed that the applicant was one of her father’s many lovers.
6. She stated categorically that there was no customary marriage between the two as she would have been invited to attend, being her father’s favourite daughter. Ms Eshutchi castigated the applicant for not providing documentary proof of her allegations and contrasted her conduct with theirs. In her view, she and her brother acted in good faith and included the children of the applicant as beneficiaries.
7. The application was canvassed by way of Written submissions.
8. The submission of the applicant is dated 19th December 2024. The Applicant's counsel submitted that as a widow, she had a life interest in the estate of the deceased. To support her contention that she was a widow she relied on the letter of the chief of Yala Township in which she was indicated as a widow. She accused the applicants of not making a full disclosure of the estate of the deceased.
9. In support of her case, she relied on the case of re Estate of Festo Akwela Kusebe alias Akwela Kutsebe (deceased) [2014]eKLR, re Estate of Julius Ndubi Javan (deceased) [2018]eKLR and re Estate of Elijah Onyango Abeka (deceased) [2024]eKLR. In the latter case, this Court found that the failure of the applicants to include the widow of a deceased polygamous African man was a ground for revocation of the grant.
10. Counsel for the applicant submitted that the non-disclosure of her status and interest was deliberate and was a calculated move aimed at deriving the applicant of her life interest over the estate, something she described as being dishonest and improper for the administrators to do. The applicant thus prayed that her application be allowed with costs.
11. The submissions of the respondent are dated 3rd December 2024. Counsel for the respondents/administrators submitted that the deceased contracted a statutory marriage to Ms Mary Nandi, which had not been dissolved at the time of his death. That being the case, he lacked the capacity to marry the applicant.
12. It was submitted that the applicant was one of the deceased's many lovers. Regarding the allegation that she cohabited with the deceased for 8 years, it was urged that she visited his house a few times but that that did not make him her husband or convert their relationship into a marriage.
13. The administrators/respondents submitted that the applicant produced no documentary proof of her allegation, nor was a notification of customary marriage produced under sections 44 and 45 of the Marriage Act, 2014.
14. To the respondents, the applicant, as a lover, had no standing as a beneficiary. Their counsel submitted that section 66 of the Law of Succession Act provided for the order of priority of people who could apply for a grant and that a lover was not listed therein.
15. Counsel averred that there had been no lies nor prevarications nor dissimulation and no misinformation as would justify the revocation of the grant.
16. Based on the foregoing it was urged that the application ought to be dismissed.
17. I have considered the application, the responses thereto as well as the written submissions of the parties. It is necessary that I set out the provision of section 76 of the Law of Succession Act. It 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.”
18. The foregoing provision of the Law of Succession Act was interpreted in the case of re Estate of Prisca Ongayo Nande (deceased) [2020]eKLR, where it was stated that:-
“Under section 76, a court may revoke a grant so long as the grounds listed above are disclosed, either on its motion or on the application of a party. A grant of letters of administration may be revoked on three general grounds. The first is where the process of obtaining the grant was attended by problems. The first would be where the process was defective, either because some mandatory procedural step was omitted, or the persons applying for representation was not competent or suitable for appointment, or the deceased died testate having made a valid will, and then a grant or letters of administration intestate was made instead of a grant of probate, or vice versa. It could also be that the process was marred by fraud and misrepresentation or concealment of matters, such as where some survivors are not disclosed or the applicant lies that he is a survivor when he is not, among other reasons. The second general ground is where the grant was obtained procedurally, but the administrator, thereafter, got into problems with the exercise of administration, such as where he fails to apply for confirmation of grant within the time allowed, or he fails to proceed diligently with administration, or fails to render accounts as and when required. The third general ground is where the grant has become useless and inoperative following subsequent circumstances, such as where a sole administrator dies, leaving behind no administrator to carry on the exercise, or where the sole administrator loses the soundness of his mind for whatever reason or even becomes physically infirm to an extent of being unable to carry out his duties as administrator, or the sole administrator is adjudged bankrupt and, therefore, becomes unqualified to hold any office of trust.”
19. Although the Applicant alleged fraud, she provided no documentary evidence showing that the applicants failed to include all the assets of the deceased or otherwise corroborated her case. As the person making a claim, she had the burden, under the Evidence Act, of proving it.
20. Sections 107, 108 and 109 of the Evidence Act states that:-
“107. Burden of proof
(1) 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.
(2) When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person.
108. Incidence of burden
The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side.
109. Proof of particular fact
The burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person.”
21. it is an established principle of law that fraud must be specifically pleaded and proved. The Court, in the case of Vijay Morjaria vs. Nansingh Madhusingh Darbar & another [2002] eKLR, stated as follows
“It is well established that fraud must be specifically pleaded and that particulars of the fraud alleged must be stated on the face of the pleading. The acts alleged to be fraudulent must, of course, be set out, and then it should be stated that these acts were done fraudulently. It is also settled law that fraudulent conduct must be distinctly alleged and as distinctly proved, and it is not allowable to leave fraud to be inferred from the facts.”
22. Save for alleging fraud, the applicant made no effort at all to prove it. The standard of proof applicable to fraud is higher than the balance of probability but less than that applicable in criminal proceedings.
23. The foregoing notwithstanding, was she married to the deceased under the customary law of the Kisa community? As she was the one alleging such a marriage, she bore the burden of proof. Did she discharge the said burden? In my view, if she intended to prove such a marriage, she could have shown that her marriage was registered under sections 44 and 45 of the Marriage 2014 or led evidence to prove the said fact.
24. In re Estate of DMM (deceased) [2018]eKLR, the Court expressed itself as follows:-
“66. Further in the case of Hortensiah Wanjiku Yawe –vs- The Public Trustee, Civil Appeal No. 13 of 1976, the court held:-The onus of proving customary law marriage is generally on the party who claims it. The standard of proof is the one usually for a civil action namely “on the balance of probabilities.” Evidence as to the formalities required for a customary law marriage must be proved to that standard. Long cohabitation as a man and wife gives rise to a presumption of marriage in favour of the party asserting it. Only cogent evidence to the contrary can rebut the presumption. If specific ceremonies and rituals are not fully accomplished this does not invalidate such a marriage.
67. From the foregoing, I am satisfied that the most important element of a Kamba customary marriage is the payment of 3 goats (mbui sya ntheo) by the groom. From the evidence on record, the above aspect aspects about the ceremony on alleged marriage of protester and deceased are lacking.
68. The protestor has not discharged the burden of proving the existence of a Kamba customary marriage between herself and the deceased bearing that in any customary law in relation to marriage, the families of both the husband and the wife comes together for mutual undertaking and agreement to the aspect of dowry price. Witnesses are engaged to witness. The protestor has failed to call any of her witnesses to confirm the matters of her dowry payment.”
25. Similarly, the Court, in the case of re Estate of Julius Kairu Kamau [2020]eKLR, stated that:-
“It is noteworthy in this case, that the Applicant has not led evidence as to what ceremony took place to signify her marriage to the deceased, apart from stating that she was married to the deceased under Kikuyu customary law. She did not tender any evidence to support her assertion that a Kikuyu customary marriage ceremony, if any, took place. The indication that her identity card bears the name ‘Kairu’ is not sufficient evidence as proof of a marriage between herself and the deceased.”
Based on that, the Court declined to find that the applicant, in the said case, was a wife of the deceased.
26. The Applicant provided no evidence that would convince this court that, indeed, she was the wife of the deceased. In the circumstances, I do not agree that the applicant was a spouse of the deceased.
27. Since it hasn’t been shown that there was material non-disclosure or fraud or that the applicant was a spouse of the deceased, there is not, in my view, a justification for the revocation of the grant. Revocation of the grant has been said to be a drastic remedy that the Court should give only where the same is merited. In the case of Albert Imbuga Kisigwa vs Recho Kavai Kisigwa [2016]eKLR, the Court stated as follows:-
“[13] Power to revoke a grant is a discretionary power that must be exercised judiciously and only on sound grounds. It is not discretion to be exercised whimsically or capriciously. There must be evidence of wrongdoing for the court to invoke section 76 and order to revoke or annul a grant. And when a court is called upon to exercise this discretion, it must take into account the interests of all beneficiaries entitled to the deceased’s estate and ensure that the action taken will be for the interest of justice.”
28. Under the circumstances, I dismiss the summon for revocation of the grant for lacking merit and order that the administrators/respondents file summons for confirmation of the grant within 30 days of the date of this ruling.
29. As this is a succession matter between family members, each party shall bear his/her/their own costs.
30. Orders accordingly
Dated and signed at Mombasa on this 14th day of February 2025. Delivered virtually through Microsoft TEAMS.