1. The applicant filed Summons for Revocation of Grant dated 29th November 2021, under the provisions of Sections 44, 76(a), (b) and (c) of the Law of Succession Act and Rules 44 and 73 of the Probate and Administration Rules.
2. The applicant seeks to revoke the Grant of Letters of Administration Intestate issued on 18th May 2020, to Lucy Wanjiru Gichuhi, Walter Mwenda Gichuhi and Rose Njeri Gichuhi. She also seeks orders for the Administrators to produce a full and accurate account of the Estate of the deceased, including but not limited to rental income in respect of Title No. Nakuru Municipality Block 3/250, Nakuru Municipality Block 18/44, Bahati/Bahati Block 1/1206 and 850 ordinary shares in Citywall Kenya Limited. The applicant also prays for reasonable provisions to be made from the Estate of the deceased for her maintenance and her children’s educational needs.
3. The application is supported by an affidavit sworn on 29th November 2021, by the applicant herein, Mercy Gathoni Githaiga. She averred that she is one of the widows of the deceased person hence a dependant of his Estate under Section 29 of the Law of Succession Act. She deposed that she commenced succession proceedings through a Citation dated 17th December 2019, after which the respondents rushed to file these proceedings and the Citation file was closed.
4. She contended that the respondents left her out and her children from the Succession Cause, despite knowing of their existence, and of their interest in the Estate which shows that the Grant ought to be revoked.
5. She further contended the respondents concealed known facts, namely, that the deceased was a majority Shareholder of Citywall Hotel which has a monthly income of Kshs.2,000,000/=, the properties known as Nakuru Municipality Block 3/250 and 18/44 which are developed with three-bedroom houses, with rental income of Kshs.50,000/= each. She stated that property known as Bahati/Bahati Block 1/1206 is developed with 27 housing units, and a standalone bungalow with a borehole, from which water is sold. She claimed that the said property fetches Kshs.400,000/= rental income monthly. She added that the respondents concealed the fact that the deceased was in the process of purchasing land measuring two acres in Bahati from Lucy Njoki and Nancy Wanjiru, and that he had made a substantial part payment.
6. Ms Githaiga deposed that she met the deceased in November 2011 and that they started dating until 2015, when they agreed to move in together as husband and wife. That they rented a house in Ruaka, where the deceased was paying rent of Kshs.30,000/= monthly. She stated that they were blessed with two children who were born at the Coptic Hospital on 21st May 2015 and 12th December 2017, and that the deceased paid the Hospital bills. She claimed that she stopped working at the deceased’s Hotel in December 2017 and relocated to Section 58 area in Nakuru, where the deceased paid her monthly rent of Kshs 24,000/=.
7. The applicant averred that in April 2018, the deceased visited her home for introduction where he met her family members, including her grandmother. Ms Githaiga deposed that the deceased was present in their children’s lives by attending special ceremonies like birthdays and baptism, and that he paid school fees for them. She stated that the deceased fell ill in 2018 and he was hospitalized in Nairobi, where she would go to see him and meet other family members, including the 1st respondent. She stated that due to his deteriorating health, the deceased was unable to pay her monthly upkeep and he gave her the original logbook of motor vehicle Registration Number KBN 209F and authorized Resma Commercial Agencies to sell it so that she could get some money. She stated that the deceased later died and the 1st respondent forcefully collected the said motor vehicle through threats, a matter she reported to Nakuru Central Police Station under OB 31/28/11/2019.
8. Ms Githaiga claimed that the burial of the deceased was meant to be done on 24th October 2019, but she only learnt that the burial was done on the night of 17th October 2019, as featured in the Nairobian Newspaper of March 6-12, 2020 under the headline, ‘When the rich mpango dies’. She claimed that the deceased being a public figure and a long-time politician was not given a befitting send-off and neither herself nor her children were given the opportunity to bury him. The applicant stated that her children are of tender age, and need financial support through school, unlike the 1st respondent whose children are already adults, which shows that she (applicant) needs reasonable provision.
9. The applicant argued that the application is merited since her children are entitled to education as well as other rights from the Estate of their father, which is in their best interest. She added that under Section 66 of the Law of Succession Act, she is put in equality with the 1st respondent in administration of the deceased’s Estate.
10. She contended that the failure by the 1st respondent to disclose that the deceased had another family amounts to concealment of material facts which shows that the proceedings were defective and the Grant should be revoked under Section 76 of the Law of Succession Act and Rules 44 and 73 of the Probate and Administration Rules.
11. The respondents opposed the Summons for Revocation of Grant through a replying affidavit sworn on 11th January 2022 by Ms Lucy Wanjiru Gichuhi, on her own behalf and on behalf of the other respondents, Walter Mwenda and Rose Njeri Gichuhi. Ms Gichuhi averred that she is the lawful wife of the deceased as they were married under Kikuyu customary law as seen in the bundle of photographs attached to her affidavit, and a video recording which she could supply on demand. She stated that she lived with the deceased for more than 20 years until his demise and they were blessed with seven issues of the marriage.
12. She denied that the applicant herein was the deceased’s second wife as she did not provide any proof of marriage other than birth certificates of her children. She stated that a visit to the applicant’s grandmother or photographs of a birthday are not proof of marriage.
13. Ms Gichuhi contended that the applicant cannot object to the confirmation of the Grant since they filed the petition openly, and it was published in the Kenya Gazette on 3rd April 2020. She averred that she was issued with a burial permit as the widow of the deceased and arrangements were made for the burial to be done, and no consent was needed from the applicant as she is a stranger to the Estate, as she is not a legal or a common wife of the deceased, to show that she is entitled to the Estate.
14. Ms Gichuhi deposed that if the applicant’s children, Susan Joy Wambui and Sifa Wairimu Gichuhi, are children of the deceased, which she denied, they are the only ones entitled to benefit from the Estate and not the applicant.
15. She denied concealing the existence of the applicant as she only got to know her when she filed a Citation, and she (1st respondent) then served her with the petition for Letters of Administration. Ms Gichuhi asserted that she could not recognize the applicant as a beneficiary or wife of the deceased.
16. She denied having left out some of the deceased’s properties such as Nakuru Municipality Block 3/250, Nakuru Municipality Block 18/44, Bahati/Bahati Block 1/1206 as they were included in the petition. She stated that the applicant did not adduce evidence to prove that the deceased was in the process of purchasing a property.
17. She added that the motor vehicle Registration Number KBN 209F could not have been gifted to the applicant by the deceased as it was owned by a company and not himself.
18. She stated that she was not aware that she was required to list Citywall Kenya Ltd, which is a limited liability company, in these succession proceedings, but once she was advised by her Counsel, she made an application dated 13th September 2021, in regard to the said company. She asserted that that the applicant must prove the alleged income of Kshs.2,000,000/= per month, claimed to be made by the said company.
19. Ms Gichuhi averred that omission of an asset or name should not result in revocation of Grant, as there is no evidence that the Grant was obtained fraudulently. She deposed that when the applicant filed the Citation and after she was served with the Petition, she was required to make out her case and not to nullify the entire process.
20. She maintained that presumption of marriage is a matter of fact which needs to be proved by evidence not mere allegations. She urged this Court to find the instant application to be without merits and have it dismissed with costs.
21. The applicant filed a supplementary affidavit sworn on 7th February 2022. She reiterated that she got married to the deceased after cohabiting with him from the year 2015 until his demise and they were blessed with two children. She claimed that the 1st respondent was well aware of her existence as a second wife. She stated that the respondents had ulterior motive by filing the case in Kiambu, while knowing that she resides in Nakuru and she does not interact with publications in the Kenya Gazette. She claimed that bad motive was also evident by having conducted the deceased’s burial at night on an earlier date, than the one scheduled for burial.
22. She emphasized that she is a wife of the deceased and she depended on him fully, until his demise. She denied having been served with the Petition as alleged by the respondents and reiterated that the 1st respondent was aware that she existed.
23. She blamed the respondents for failing to state that some of the properties were developed and that they derive rental income therefrom. She stated that the respondents should not deny that the Hotel makes Kshs.2,000,000/= per month, as they have to account for the income earned since the deceased’s demise. She urged this Court to allow the application.
24. The application was canvassed by way of viva voce evidence and written submissions. The Court (Mshila J.), heard the applicants’ witnesses, Mercy Gathoni Githaiga (PW1), Naomi Mwende Githaiga (PW2) and Benard Githaiga Wanjohi (PW3). She also heard the evidence of the respondents’ witness, Lucy Wanjiru Gichuhi (DW1).
25. Mercy Gathoni Githaiga, testified as PW1. She adopted her supporting and supplementary affidavits dated 29th November 2021 and 7th November 2022, respectively, as her evidence-in-chief and produced her bundle of documents as PEXB 1-19. She stated that she has birth certificates for her children which show that the deceased was their father. She also provided evidence of Bank and Mpesa statements which show that the deceased used to send her money. She described the photographs showing the deceased holding their child, her baby shower, birthday party for Susan Wamuyu, and baptism forms as evidence to show that the deceased was the father of her children. She also exhibited a photograph of when she visited the deceased in the Hospital, the burial taking place at night, with the Priest using a torch from a phone and the story of the burial as published in the Nairobian Newspaper. She urged this Court to revoke the Grant and make provision for herself and her children as dependants of the deceased.
26. In cross-examination by Mr Kamau Advocate, PW1 stated that the burial was done at night using a torch, which is contrary to Kikuyu customs, and not at 6.20 p.m. She stated that the Bank and Mpesa statements are evidence that the deceased supported her. She confirmed that there are procedures for marriage in Kikuyu customs and that the deceased went to their house once, but never went back. She stated that she did not know what was discussed or whether anything was written down, but she was later called in and her father told her afterwards, that the visitors had come for an introduction.
27. She stated that she met the deceased while working as a Receptionist at his Hotel, and when the deceased was ill, she visited him in the Hospital and took photographs. She stated that the 1st respondent was there in the Hospital, but she does not appear in any of the photographs.
28. She contended that the 1st respondent was feigning ignorance as there were many occasions when their marriage was discussed, and the deceased had told her that she had informed the 1st respondent about her.
29. She reiterated that the Petition was filed privately and that she never interacts with Kenya Gazette. She confirmed that she was working but the money was not sufficient, and so she depended on the deceased.
30. She confirmed that she does not have evidence of developments on the properties or rental income or that Citywall Hotel makes Kshs.2,000,000/= monthly. She stated that between 2020 and 2021, she was not working, but she started her business of selling vegetables in October 2021, just to try it out.
31. She stated that the deceased got birth certificates and baptism cards for the children, and there was nothing else to show that the children belonged to the deceased.
32. In re-examination, she stated that the deceased went to her home with Mr. Mbogo who was his friend, and they gave out Kshs.20,000/= but she was not present. She indicated that the visit was in 2018, but the deceased never went back and he died in 2019 after ailing, which means he could not have gone back to her home. She stated that the deceased paid her rent and all expenses, and she has birth certificates which confirm that the deceased was the father of her children, which certificates have not been challenged.
33. On the issue of rental income, she indicated that she had no evidence as she was told by her husband, but the reports can show the same. She stated that in her business she was making Kshs.200 per day which is not enough to sustain them and that is why she filed the case so that she can be provided for. She stated that the burial was done on the night of 17th October 2019 and not 24th October 2019 as scheduled.
34. Naomi Mwenda Githaiga testified as PW2. She adopted her witness statement dated 25th April 2022 as her evidence-in-chief. She stated that she is the sister of the applicant and she knew that the deceased was her lover and her employer. She testified that PW1’s daughter is named after the deceased’s mother, and when the deceased was in Hospital, she went to visit him in the company of the applicant.
35. In cross-examination by Mr. Kamau Advocate, she stated that she knows Lucy (DW1) as Mama Wambui, the deceased’s first wife. She also stated that she (PW2) is married under Kikuyu Customs and there was an introduction and her parents followed up, and that her husband’s parents went to their home a second time with guests but she was never called inside, and she was told by the Elders that they could do a wedding. She testified that during the visit, PW1 introduced the deceased to her, as her friend, then he later became her husband. She narrated an instance when the deceased and his three friends visited their home, with the purpose of knowing the home, and they left. She indicated that the deceased never went back to their home because of his health. She confirmed that the deceased loved and cared for PW1.
36. She stated that nothing was done to make PW1 a wife, as they never went to church to wed. She added that while in Hospital, the deceased said that his children with Lucy DW1 and Mercy (PW1) be educated and the reference was only on the children and not the wives. She stated that the deceased would pay rent for her, which was not a debt, and that he would call her whenever he had an argument with PW1, but she could not recall when that happened.
37. In re-examination, she reiterated that the deceased would call her at night if he disagreed with PW1 and that he would pay her rent as a way of helping her, as his sister-in-law. She also confirmed that the deceased while in Hospital stated that the children should be educated from the proceeds of the Hotel.
38. With respect to whether PW1 and the deceased had a marriage, she stated that they did not have a wedding and that the deceased did not go for the second introduction. PW2 stated that she had a wedding and there was a process needed to plan it, between the introduction, as her spouse and his family went to their home about three times, but she was not present during the discussions. She stated that Lucy (DW1) is Mama Wambui the first wife, and that Mercy (PW1) is the deceased’s second wife.
39. Benard Githaiga Wanjohi, testified that as PW3. He is the father of PW1. He stated that he knew the deceased as PW1’s husband. He produced his statement dated 25th April 2022. His evidence was that he first saw the deceased in 2015, during his retirement celebration when PW1 was expectant and he asked his wife to follow up on the issue. He stated that the deceased was introduced as PW1’s ‘Mzee’ and after she delivered, the child was named after the deceased’s mother, and his wife went to stay with PW1 in Nairobi. He stated that on the child’s birthday party at Section 58 in Nakuru, the deceased was present and PW2 was the MC of the day.
40. He testified that on 6th May 2018, the deceased visited them with his Aunt Ngendo, and one Mbogo, and he (PW3), called his friend Musa Muchai. It was PW3’s evidence that the deceased told them that he wanted to have PW1 as his wife, and he paid Kshs 20,000/= (Kshs 10,000/= for mwati and Kshs 10,000/= for harika), and they said that they would return, but he (deceased) did not do so due to illness.
41. He confirmed that Kikuyu customary marriage is a process which starts with introduction and ends with ruracio which are not done on the same day.
42. He testified that there was a period when the deceased and PW1 had disagreed and he travelled with his friend Musa Muchai to Citywall Hotel, where they had lunch and a discussion which resolved the issues, and they continued living together. He testified that the deceased treated PW1 as his second wife and the process of traditional marriage had started.
43. In cross-examination by Mr Kamau Advocate, PW3 stated that introduction is a ceremony and when the deceased went to his home, he did not record anything. As such, there was no list of attendees, and nothing was brought to Court as evidence. He stated that he cannot recall the year, month or date of the birthday party. He stated that he had seen Lucy, the deceased’s first wife, many times. He confirmed that he did not write the attendees of the meeting, not even his own children.
44. The respondents called Lucy Wanjiru Gichuhi as their only witness. She testified as DW1. She adopted her witness statement dated 29th March 2022 as her evidence-in-chief and produced her list of documents at pages 56-66 as DW-EXB1.
45. In cross-examination by Mr. Mwangi Advocate, DW1 stated that she does not have proof of authority from her children Walter and Rose to swear the affidavit on their behalf. She stated that the deceased was her husband under customary law not church, as they started cohabiting in 1983 and he died in 2019. She testified that the uthoni customary marriage was done in 1986, but she had no proof of the same. She stated that the uthoni is a process, and not an event, and that the deceased was already her husband before the uthoni in 1986. It was her evidence that their marriage was blessed with seven (7) children; Walter aged 26, Rose - 36 years, Susan - 40 years, Henry - 30 years and Judy - 30 years. She stated that Susan Wambui Gichuhi is her step-daughter and Ben Mwenda is a son of her deceased sister-in-law, whom she adopted and she added them as beneficiaries.
46. She confirmed knowing the applicant who was her employee in the Hotel, but denied knowing of her relationship with the deceased. She denied having seen the applicant at the Hospital and stated she had no knowledge that Ben Mwenda took money to her, or knowing that PW1 needed money from the proceeds of the Hotel.
47. DW1 stated that she was shocked to hear that the deceased had children with PW1, whose first child bears a name similar to that of her mother-in-law. She admitted that the birth certificates of PW1’s children show the name of the deceased, Dedan, as their father and she did not have any contrary documents by the District Registrar.
48. It was her evidence that when she filed the Petition in Kiambu, she did not know that there were other proceedings in Nakuru. She confirmed having been served with the Citation and that she appointed an Advocate to enter appearance, who explained to her what the documents were. She stated that when she filed the Petition, she did not know about PW1’s children and that she only filed the Petition in Kiambu Court, as she resides in Kiambu, despite the fact that the deceased was buried in Nakuru. She indicated that the deceased had only one property in Kiambu, and all the others are in Nakuru. She acknowledged that PW1 ought to have been served with the Petition. As for the Summons for Confirmation of Grant, she could not recall whether or not PW1 was served.
49. She stated that the deceased had 85% shareholding, while she had 15% in Citywall Hotel, but she did not include his shares in the Petition as she did not know that she was required to do so. She stated that the Hotel has a high value, but she denied using the backdoor to appoint new Directors. On the allegation by PW1 that the Hotel makes Kshs.2,000,000/= monthly income, she indicated that from its inception, it makes between Kshs.800,000/= and Kshs.900,000/=. She admitted that she had not prepared audited accounts.
50. DW1 indicated that she had no knowledge that the deceased would send PW1 money or that the source of the money was the company. She confirmed that statements of account showed that PW1 was sent Kshs.100,000.00 to her account from Citywall Hotel.
51. She testified that the deceased died in 2019 at the Nairobi Hospital and his burial date of 24th October 2019 was advertised through Inooro, but he was buried earlier, on 17th October 2019. She stated that she was not the one who decided to change the burial date, and she was not given any reasons why it was done at night.
52. It was her evidence that the burial had about 200 people or about 120 people and it was at 6.30 p.m., and dark. She stated that there are pictures of herself and the children at the burial, and the coffin was lowered with ropes, and that she fainted during the ceremony and was not aware if concrete was put on top of the grave. She stated that there is no evidence of 200 attendees. She admitted to not having given the deceased a befitting send off as the burial was at night, but it was not because PW1 was going to Court as she was not aware of it.
53. With regard to the Nairobian Newspaper Publication, she stated that it was published that the deceased was buried at 6.30 pm., and the said Newspaper gave reasons as to why the lady was to go to Court.
54. She added that PW1 had the deceased’s car in her possession, while she had the documents and she denied sending Police to pick the car.
55. She agreed that the children of the deceased are entitled to reasonable provision but upon producing prove that they are his children as the birth certificates could be forgeries. She was against exhumation of the deceased for DNA to be conducted, but stated that she needed time to think about it. She admitted that the letter from the Chief only lists her children and not PW1’s children.
56. In re-examination, she stated that the ruracio ceremony was done for her marriage to the deceased.
57. With respect to the authority of her children to swear the affidavit on their behalf, she stated that they reside in the United Kingdom and she stood in for them.
58. She stated that she did not know about the other case of the Citation, and that she filed the Petition through her Advocate in Kiambu, since the deceased had a house (boma) in Kiambu. She asserted that she served PW1 and that the petition was gazetted.
59. She denied that she was hiding shares of the Hotel and stated that she thought they were independent. She denied changing the Directors of the Hotel through the back door and indicated that she went through Court. She expressed the view that PW1 did not provide evidence that the Hotel makes Kshs.2,000,000/= monthly.
60. She denied that the burial was at night and stated that she gave the deceased a decent burial.
61. PW1 (applicant) filed written submissions dated 10th February 2026 which were withdrawn through the Notice of Withdrawal dated 17th February 2026, and later filed submissions dated 16th February 2026 and supplementary submissions dated 10th March 2026 through the law firm of Mwangi & Partners. The respondents filed written submissions dated 17th February 2026 through the law firm of P.K. Kamau & Company Advocates.
62. Mr. Mwangi, learned Counsel for the applicant submitted on seven issues; namely, whether the minors Susan Joy Wambui Gichuhi and Sifa Wairimu Gichuhi are children of the deceased, whether the applicant was the second wife of the deceased, whether the deceased maintained the applicant and her children, whether the respondents fraudulently filed a petition by making a false statement and concealed material facts, whether the applicant has proved her case for revocation of Grant, whether the respondents should be ordered to give a full and accurate account of the Estate, whether the applicant and her children are entitled to reasonable provision, and on the issue of costs.
63. Counsel maintained that the deceased is the father of the applicant’s children as no contrary evidence was tendered by the respondents. He cited the case of FNT & another v CM on behalf of CSNT [2021] eKLR, in which documentary evidence was relied on to show that the deceased was the father of the minor therein, as he was involved in school and welfare.
64. Mr. Mwangi asserted that there is evidence that the deceased visited the applicant’s family and paid Kshs 20,000/= as ‘mwati’ and ‘harika’, which was confirmed by PW3, which shows commencement of a traditional marriage which was incomplete. He placed reliance on the case of James Njuguna Kagiri v Mary Wanjiru Njuguna [2006] eKLR, which held that lack of performance of traditional ceremonies does not lead to a finding that there was no marriage, if other ingredients such as capacity, consent, payment of dowry and commencement of cohabitation are proved.
65. Counsel relied on three cases which support the doctrine of presumption of marriage - Esther Wanjiru Kiarie v Mary Wanjiru Githatu [2008] eKLR, Joseph Gitau Githongo v Victoria Mwihaki Munya [2014] eKLR and Nyambura Kangara v Paul Ogari Mayaka & others [2023] eKLR. He submitted that the applicant was a dependant of the deceased under Section 29 of the Law of Succession Act, which assertion the respondents had not disputed. He further submitted that the applicant had provided various Bank accounts and Mpesa statements, which support payments made by the deceased to her on diverse dates of 2015 and 2019, which were made by Citywall Ltd, and some payments were made by the deceased and other payments by Ben Mwenda, who is a nephew of the deceased. Counsel contended that the respondents did not tender any evidence to the contrary, which shows that the deceased maintained the applicant in their marriage.
66. Mr. Mwangi submitted that failure by the respondents to include the applicant and her children in the Petition shows fraudulent misrepresentation. He cited the case of Julius Kiptoo Rop & others v Leah Kipruto & others [2025] eKLR, where the Court of Appeal defined fraud as misrepresentation or concealment of material facts meant to induce another to act to his or her detriment. He also cited the case of Sabina Kamori Kiburi & others v Monicah Wairima [2025] eKLR and Re Estate of Moses Wachira Kimotho (Deceased) [2009] KEHC 3958 (KLR), which addressed the issue of disclosure of material facts. Counsel argued that the applicant has made out a case for revocation of the Grant issued, as required under Section 76 of the Law of Succession Act.
67. Mr. Mwangi urged this Court to order for accounts of the Estate, which has income generating assets such as shares of Citywall Hotel and the rental income on the developed assets. He maintained that the applicant and her children are dependants of the Estate under Section 29 of the Law of Succession Act and the Court should make an order for reasonable provision of their basic needs. He also urged this Court to award costs of the application to the applicant.
68. Mr. Kamau, learned Counsel for the respondents submitted on five issues - whether the applicant has proved marriage under Kikuyu customary law, whether a presumption of marriage arises in favour of the applicant, whether the applicant qualifies as a dependant, whether the Grant was obtained fraudulently or through concealment of material facts and whether the legal threshold for revocation of Grant has been met by the applicant.
69. Counsel argued that customary law marriage is proved by evidence and cited the case of Gituanja v Gituanja [1983] KLR 575, to support his assertion. He further quoted the case of Echaria v Echaria [2007] eKLR, to state that cohabitation alone does not constitute a customary marriage, unless mandatory rites are proved.
70. He contended that the marriage herein is based on alleged cohabitation, childbirth, photographs, a visit to the applicant’s grandmother’s home and payment of Kshs.20,000/=, without evidence from anyone else, other than the nuclear family. He relied on the case of Njoki v Mutheru [1985] KLR 874, which held that dowry payment without proof of negotiations and family participation is insufficient to prove a marriage. He submitted that the Court in the case of Hortensiah Wanjiku Yawe v Public Truste
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2. The applicant seeks to revoke the Grant of Letters of Administration Intestate issued on 18th May 2020, to Lucy Wanjiru Gichuhi, Walter Mwenda Gichuhi and Rose Njeri Gichuhi. She also seeks orders for the Administrators to produce a full and accurate account of the Estate of the deceased, including but not limited to rental income in respect of Title No. Nakuru Municipality Block 3/250, Nakuru Municipality Block 18/44, Bahati/Bahati Block 1/1206 and 850 ordinary shares in Citywall Kenya Limited. The applicant also prays for reasonable provisions to be made from the Estate of the deceased for her maintenance and her children’s educational needs.
3. The application is supported by an affidavit sworn on 29th November 2021, by the applicant herein, Mercy Gathoni Githaiga. She averred that she is one of the widows of the deceased person hence a dependant of his Estate under Section 29 of the Law of Succession Act. She deposed that she commenced succession proceedings through a Citation dated 17th December 2019, after which the respondents rushed to file these proceedings and the Citation file was closed.
4. She contended that the respondents left her out and her children from the Succession Cause, despite knowing of their existence, and of their interest in the Estate which shows that the Grant ought to be revoked.
5. She further contended the respondents concealed known facts, namely, that the deceased was a majority Shareholder of Citywall Hotel which has a monthly income of Kshs.2,000,000/=, the properties known as Nakuru Municipality Block 3/250 and 18/44 which are developed with three-bedroom houses, with rental income of Kshs.50,000/= each. She stated that property known as Bahati/Bahati Block 1/1206 is developed with 27 housing units, and a standalone bungalow with a borehole, from which water is sold. She claimed that the said property fetches Kshs.400,000/= rental income monthly. She added that the respondents concealed the fact that the deceased was in the process of purchasing land measuring two acres in Bahati from Lucy Njoki and Nancy Wanjiru, and that he had made a substantial part payment.
6. Ms Githaiga deposed that she met the deceased in November 2011 and that they started dating until 2015, when they agreed to move in together as husband and wife. That they rented a house in Ruaka, where the deceased was paying rent of Kshs.30,000/= monthly. She stated that they were blessed with two children who were born at the Coptic Hospital on 21st May 2015 and 12th December 2017, and that the deceased paid the Hospital bills. She claimed that she stopped working at the deceased’s Hotel in December 2017 and relocated to Section 58 area in Nakuru, where the deceased paid her monthly rent of Kshs 24,000/=.
7. The applicant averred that in April 2018, the deceased visited her home for introduction where he met her family members, including her grandmother. Ms Githaiga deposed that the deceased was present in their children’s lives by attending special ceremonies like birthdays and baptism, and that he paid school fees for them. She stated that the deceased fell ill in 2018 and he was hospitalized in Nairobi, where she would go to see him and meet other family members, including the 1st respondent. She stated that due to his deteriorating health, the deceased was unable to pay her monthly upkeep and he gave her the original logbook of motor vehicle Registration Number KBN 209F and authorized Resma Commercial Agencies to sell it so that she could get some money. She stated that the deceased later died and the 1st respondent forcefully collected the said motor vehicle through threats, a matter she reported to Nakuru Central Police Station under OB 31/28/11/2019.
8. Ms Githaiga claimed that the burial of the deceased was meant to be done on 24th October 2019, but she only learnt that the burial was done on the night of 17th October 2019, as featured in the Nairobian Newspaper of March 6-12, 2020 under the headline, ‘When the rich mpango dies’. She claimed that the deceased being a public figure and a long-time politician was not given a befitting send-off and neither herself nor her children were given the opportunity to bury him. The applicant stated that her children are of tender age, and need financial support through school, unlike the 1st respondent whose children are already adults, which shows that she (applicant) needs reasonable provision.
9. The applicant argued that the application is merited since her children are entitled to education as well as other rights from the Estate of their father, which is in their best interest. She added that under Section 66 of the Law of Succession Act, she is put in equality with the 1st respondent in administration of the deceased’s Estate.
10. She contended that the failure by the 1st respondent to disclose that the deceased had another family amounts to concealment of material facts which shows that the proceedings were defective and the Grant should be revoked under Section 76 of the Law of Succession Act and Rules 44 and 73 of the Probate and Administration Rules.
11. The respondents opposed the Summons for Revocation of Grant through a replying affidavit sworn on 11th January 2022 by Ms Lucy Wanjiru Gichuhi, on her own behalf and on behalf of the other respondents, Walter Mwenda and Rose Njeri Gichuhi. Ms Gichuhi averred that she is the lawful wife of the deceased as they were married under Kikuyu customary law as seen in the bundle of photographs attached to her affidavit, and a video recording which she could supply on demand. She stated that she lived with the deceased for more than 20 years until his demise and they were blessed with seven issues of the marriage.
12. She denied that the applicant herein was the deceased’s second wife as she did not provide any proof of marriage other than birth certificates of her children. She stated that a visit to the applicant’s grandmother or photographs of a birthday are not proof of marriage.
13. Ms Gichuhi contended that the applicant cannot object to the confirmation of the Grant since they filed the petition openly, and it was published in the Kenya Gazette on 3rd April 2020. She averred that she was issued with a burial permit as the widow of the deceased and arrangements were made for the burial to be done, and no consent was needed from the applicant as she is a stranger to the Estate, as she is not a legal or a common wife of the deceased, to show that she is entitled to the Estate.
14. Ms Gichuhi deposed that if the applicant’s children, Susan Joy Wambui and Sifa Wairimu Gichuhi, are children of the deceased, which she denied, they are the only ones entitled to benefit from the Estate and not the applicant.
15. She denied concealing the existence of the applicant as she only got to know her when she filed a Citation, and she (1st respondent) then served her with the petition for Letters of Administration. Ms Gichuhi asserted that she could not recognize the applicant as a beneficiary or wife of the deceased.
16. She denied having left out some of the deceased’s properties such as Nakuru Municipality Block 3/250, Nakuru Municipality Block 18/44, Bahati/Bahati Block 1/1206 as they were included in the petition. She stated that the applicant did not adduce evidence to prove that the deceased was in the process of purchasing a property.
17. She added that the motor vehicle Registration Number KBN 209F could not have been gifted to the applicant by the deceased as it was owned by a company and not himself.
18. She stated that she was not aware that she was required to list Citywall Kenya Ltd, which is a limited liability company, in these succession proceedings, but once she was advised by her Counsel, she made an application dated 13th September 2021, in regard to the said company. She asserted that that the applicant must prove the alleged income of Kshs.2,000,000/= per month, claimed to be made by the said company.
19. Ms Gichuhi averred that omission of an asset or name should not result in revocation of Grant, as there is no evidence that the Grant was obtained fraudulently. She deposed that when the applicant filed the Citation and after she was served with the Petition, she was required to make out her case and not to nullify the entire process.
20. She maintained that presumption of marriage is a matter of fact which needs to be proved by evidence not mere allegations. She urged this Court to find the instant application to be without merits and have it dismissed with costs.
21. The applicant filed a supplementary affidavit sworn on 7th February 2022. She reiterated that she got married to the deceased after cohabiting with him from the year 2015 until his demise and they were blessed with two children. She claimed that the 1st respondent was well aware of her existence as a second wife. She stated that the respondents had ulterior motive by filing the case in Kiambu, while knowing that she resides in Nakuru and she does not interact with publications in the Kenya Gazette. She claimed that bad motive was also evident by having conducted the deceased’s burial at night on an earlier date, than the one scheduled for burial.
22. She emphasized that she is a wife of the deceased and she depended on him fully, until his demise. She denied having been served with the Petition as alleged by the respondents and reiterated that the 1st respondent was aware that she existed.
23. She blamed the respondents for failing to state that some of the properties were developed and that they derive rental income therefrom. She stated that the respondents should not deny that the Hotel makes Kshs.2,000,000/= per month, as they have to account for the income earned since the deceased’s demise. She urged this Court to allow the application.
24. The application was canvassed by way of viva voce evidence and written submissions. The Court (Mshila J.), heard the applicants’ witnesses, Mercy Gathoni Githaiga (PW1), Naomi Mwende Githaiga (PW2) and Benard Githaiga Wanjohi (PW3). She also heard the evidence of the respondents’ witness, Lucy Wanjiru Gichuhi (DW1).
25. Mercy Gathoni Githaiga, testified as PW1. She adopted her supporting and supplementary affidavits dated 29th November 2021 and 7th November 2022, respectively, as her evidence-in-chief and produced her bundle of documents as PEXB 1-19. She stated that she has birth certificates for her children which show that the deceased was their father. She also provided evidence of Bank and Mpesa statements which show that the deceased used to send her money. She described the photographs showing the deceased holding their child, her baby shower, birthday party for Susan Wamuyu, and baptism forms as evidence to show that the deceased was the father of her children. She also exhibited a photograph of when she visited the deceased in the Hospital, the burial taking place at night, with the Priest using a torch from a phone and the story of the burial as published in the Nairobian Newspaper. She urged this Court to revoke the Grant and make provision for herself and her children as dependants of the deceased.
26. In cross-examination by Mr Kamau Advocate, PW1 stated that the burial was done at night using a torch, which is contrary to Kikuyu customs, and not at 6.20 p.m. She stated that the Bank and Mpesa statements are evidence that the deceased supported her. She confirmed that there are procedures for marriage in Kikuyu customs and that the deceased went to their house once, but never went back. She stated that she did not know what was discussed or whether anything was written down, but she was later called in and her father told her afterwards, that the visitors had come for an introduction.
27. She stated that she met the deceased while working as a Receptionist at his Hotel, and when the deceased was ill, she visited him in the Hospital and took photographs. She stated that the 1st respondent was there in the Hospital, but she does not appear in any of the photographs.
28. She contended that the 1st respondent was feigning ignorance as there were many occasions when their marriage was discussed, and the deceased had told her that she had informed the 1st respondent about her.
29. She reiterated that the Petition was filed privately and that she never interacts with Kenya Gazette. She confirmed that she was working but the money was not sufficient, and so she depended on the deceased.
30. She confirmed that she does not have evidence of developments on the properties or rental income or that Citywall Hotel makes Kshs.2,000,000/= monthly. She stated that between 2020 and 2021, she was not working, but she started her business of selling vegetables in October 2021, just to try it out.
31. She stated that the deceased got birth certificates and baptism cards for the children, and there was nothing else to show that the children belonged to the deceased.
32. In re-examination, she stated that the deceased went to her home with Mr. Mbogo who was his friend, and they gave out Kshs.20,000/= but she was not present. She indicated that the visit was in 2018, but the deceased never went back and he died in 2019 after ailing, which means he could not have gone back to her home. She stated that the deceased paid her rent and all expenses, and she has birth certificates which confirm that the deceased was the father of her children, which certificates have not been challenged.
33. On the issue of rental income, she indicated that she had no evidence as she was told by her husband, but the reports can show the same. She stated that in her business she was making Kshs.200 per day which is not enough to sustain them and that is why she filed the case so that she can be provided for. She stated that the burial was done on the night of 17th October 2019 and not 24th October 2019 as scheduled.
34. Naomi Mwenda Githaiga testified as PW2. She adopted her witness statement dated 25th April 2022 as her evidence-in-chief. She stated that she is the sister of the applicant and she knew that the deceased was her lover and her employer. She testified that PW1’s daughter is named after the deceased’s mother, and when the deceased was in Hospital, she went to visit him in the company of the applicant.
35. In cross-examination by Mr. Kamau Advocate, she stated that she knows Lucy (DW1) as Mama Wambui, the deceased’s first wife. She also stated that she (PW2) is married under Kikuyu Customs and there was an introduction and her parents followed up, and that her husband’s parents went to their home a second time with guests but she was never called inside, and she was told by the Elders that they could do a wedding. She testified that during the visit, PW1 introduced the deceased to her, as her friend, then he later became her husband. She narrated an instance when the deceased and his three friends visited their home, with the purpose of knowing the home, and they left. She indicated that the deceased never went back to their home because of his health. She confirmed that the deceased loved and cared for PW1.
36. She stated that nothing was done to make PW1 a wife, as they never went to church to wed. She added that while in Hospital, the deceased said that his children with Lucy DW1 and Mercy (PW1) be educated and the reference was only on the children and not the wives. She stated that the deceased would pay rent for her, which was not a debt, and that he would call her whenever he had an argument with PW1, but she could not recall when that happened.
37. In re-examination, she reiterated that the deceased would call her at night if he disagreed with PW1 and that he would pay her rent as a way of helping her, as his sister-in-law. She also confirmed that the deceased while in Hospital stated that the children should be educated from the proceeds of the Hotel.
38. With respect to whether PW1 and the deceased had a marriage, she stated that they did not have a wedding and that the deceased did not go for the second introduction. PW2 stated that she had a wedding and there was a process needed to plan it, between the introduction, as her spouse and his family went to their home about three times, but she was not present during the discussions. She stated that Lucy (DW1) is Mama Wambui the first wife, and that Mercy (PW1) is the deceased’s second wife.
39. Benard Githaiga Wanjohi, testified that as PW3. He is the father of PW1. He stated that he knew the deceased as PW1’s husband. He produced his statement dated 25th April 2022. His evidence was that he first saw the deceased in 2015, during his retirement celebration when PW1 was expectant and he asked his wife to follow up on the issue. He stated that the deceased was introduced as PW1’s ‘Mzee’ and after she delivered, the child was named after the deceased’s mother, and his wife went to stay with PW1 in Nairobi. He stated that on the child’s birthday party at Section 58 in Nakuru, the deceased was present and PW2 was the MC of the day.
40. He testified that on 6th May 2018, the deceased visited them with his Aunt Ngendo, and one Mbogo, and he (PW3), called his friend Musa Muchai. It was PW3’s evidence that the deceased told them that he wanted to have PW1 as his wife, and he paid Kshs 20,000/= (Kshs 10,000/= for mwati and Kshs 10,000/= for harika), and they said that they would return, but he (deceased) did not do so due to illness.
41. He confirmed that Kikuyu customary marriage is a process which starts with introduction and ends with ruracio which are not done on the same day.
42. He testified that there was a period when the deceased and PW1 had disagreed and he travelled with his friend Musa Muchai to Citywall Hotel, where they had lunch and a discussion which resolved the issues, and they continued living together. He testified that the deceased treated PW1 as his second wife and the process of traditional marriage had started.
43. In cross-examination by Mr Kamau Advocate, PW3 stated that introduction is a ceremony and when the deceased went to his home, he did not record anything. As such, there was no list of attendees, and nothing was brought to Court as evidence. He stated that he cannot recall the year, month or date of the birthday party. He stated that he had seen Lucy, the deceased’s first wife, many times. He confirmed that he did not write the attendees of the meeting, not even his own children.
44. The respondents called Lucy Wanjiru Gichuhi as their only witness. She testified as DW1. She adopted her witness statement dated 29th March 2022 as her evidence-in-chief and produced her list of documents at pages 56-66 as DW-EXB1.
45. In cross-examination by Mr. Mwangi Advocate, DW1 stated that she does not have proof of authority from her children Walter and Rose to swear the affidavit on their behalf. She stated that the deceased was her husband under customary law not church, as they started cohabiting in 1983 and he died in 2019. She testified that the uthoni customary marriage was done in 1986, but she had no proof of the same. She stated that the uthoni is a process, and not an event, and that the deceased was already her husband before the uthoni in 1986. It was her evidence that their marriage was blessed with seven (7) children; Walter aged 26, Rose - 36 years, Susan - 40 years, Henry - 30 years and Judy - 30 years. She stated that Susan Wambui Gichuhi is her step-daughter and Ben Mwenda is a son of her deceased sister-in-law, whom she adopted and she added them as beneficiaries.
46. She confirmed knowing the applicant who was her employee in the Hotel, but denied knowing of her relationship with the deceased. She denied having seen the applicant at the Hospital and stated she had no knowledge that Ben Mwenda took money to her, or knowing that PW1 needed money from the proceeds of the Hotel.
47. DW1 stated that she was shocked to hear that the deceased had children with PW1, whose first child bears a name similar to that of her mother-in-law. She admitted that the birth certificates of PW1’s children show the name of the deceased, Dedan, as their father and she did not have any contrary documents by the District Registrar.
48. It was her evidence that when she filed the Petition in Kiambu, she did not know that there were other proceedings in Nakuru. She confirmed having been served with the Citation and that she appointed an Advocate to enter appearance, who explained to her what the documents were. She stated that when she filed the Petition, she did not know about PW1’s children and that she only filed the Petition in Kiambu Court, as she resides in Kiambu, despite the fact that the deceased was buried in Nakuru. She indicated that the deceased had only one property in Kiambu, and all the others are in Nakuru. She acknowledged that PW1 ought to have been served with the Petition. As for the Summons for Confirmation of Grant, she could not recall whether or not PW1 was served.
49. She stated that the deceased had 85% shareholding, while she had 15% in Citywall Hotel, but she did not include his shares in the Petition as she did not know that she was required to do so. She stated that the Hotel has a high value, but she denied using the backdoor to appoint new Directors. On the allegation by PW1 that the Hotel makes Kshs.2,000,000/= monthly income, she indicated that from its inception, it makes between Kshs.800,000/= and Kshs.900,000/=. She admitted that she had not prepared audited accounts.
50. DW1 indicated that she had no knowledge that the deceased would send PW1 money or that the source of the money was the company. She confirmed that statements of account showed that PW1 was sent Kshs.100,000.00 to her account from Citywall Hotel.
51. She testified that the deceased died in 2019 at the Nairobi Hospital and his burial date of 24th October 2019 was advertised through Inooro, but he was buried earlier, on 17th October 2019. She stated that she was not the one who decided to change the burial date, and she was not given any reasons why it was done at night.
52. It was her evidence that the burial had about 200 people or about 120 people and it was at 6.30 p.m., and dark. She stated that there are pictures of herself and the children at the burial, and the coffin was lowered with ropes, and that she fainted during the ceremony and was not aware if concrete was put on top of the grave. She stated that there is no evidence of 200 attendees. She admitted to not having given the deceased a befitting send off as the burial was at night, but it was not because PW1 was going to Court as she was not aware of it.
53. With regard to the Nairobian Newspaper Publication, she stated that it was published that the deceased was buried at 6.30 pm., and the said Newspaper gave reasons as to why the lady was to go to Court.
54. She added that PW1 had the deceased’s car in her possession, while she had the documents and she denied sending Police to pick the car.
55. She agreed that the children of the deceased are entitled to reasonable provision but upon producing prove that they are his children as the birth certificates could be forgeries. She was against exhumation of the deceased for DNA to be conducted, but stated that she needed time to think about it. She admitted that the letter from the Chief only lists her children and not PW1’s children.
56. In re-examination, she stated that the ruracio ceremony was done for her marriage to the deceased.
57. With respect to the authority of her children to swear the affidavit on their behalf, she stated that they reside in the United Kingdom and she stood in for them.
58. She stated that she did not know about the other case of the Citation, and that she filed the Petition through her Advocate in Kiambu, since the deceased had a house (boma) in Kiambu. She asserted that she served PW1 and that the petition was gazetted.
59. She denied that she was hiding shares of the Hotel and stated that she thought they were independent. She denied changing the Directors of the Hotel through the back door and indicated that she went through Court. She expressed the view that PW1 did not provide evidence that the Hotel makes Kshs.2,000,000/= monthly.
60. She denied that the burial was at night and stated that she gave the deceased a decent burial.
61. PW1 (applicant) filed written submissions dated 10th February 2026 which were withdrawn through the Notice of Withdrawal dated 17th February 2026, and later filed submissions dated 16th February 2026 and supplementary submissions dated 10th March 2026 through the law firm of Mwangi & Partners. The respondents filed written submissions dated 17th February 2026 through the law firm of P.K. Kamau & Company Advocates.
62. Mr. Mwangi, learned Counsel for the applicant submitted on seven issues; namely, whether the minors Susan Joy Wambui Gichuhi and Sifa Wairimu Gichuhi are children of the deceased, whether the applicant was the second wife of the deceased, whether the deceased maintained the applicant and her children, whether the respondents fraudulently filed a petition by making a false statement and concealed material facts, whether the applicant has proved her case for revocation of Grant, whether the respondents should be ordered to give a full and accurate account of the Estate, whether the applicant and her children are entitled to reasonable provision, and on the issue of costs.
63. Counsel maintained that the deceased is the father of the applicant’s children as no contrary evidence was tendered by the respondents. He cited the case of FNT & another v CM on behalf of CSNT [2021] eKLR, in which documentary evidence was relied on to show that the deceased was the father of the minor therein, as he was involved in school and welfare.
64. Mr. Mwangi asserted that there is evidence that the deceased visited the applicant’s family and paid Kshs 20,000/= as ‘mwati’ and ‘harika’, which was confirmed by PW3, which shows commencement of a traditional marriage which was incomplete. He placed reliance on the case of James Njuguna Kagiri v Mary Wanjiru Njuguna [2006] eKLR, which held that lack of performance of traditional ceremonies does not lead to a finding that there was no marriage, if other ingredients such as capacity, consent, payment of dowry and commencement of cohabitation are proved.
65. Counsel relied on three cases which support the doctrine of presumption of marriage - Esther Wanjiru Kiarie v Mary Wanjiru Githatu [2008] eKLR, Joseph Gitau Githongo v Victoria Mwihaki Munya [2014] eKLR and Nyambura Kangara v Paul Ogari Mayaka & others [2023] eKLR. He submitted that the applicant was a dependant of the deceased under Section 29 of the Law of Succession Act, which assertion the respondents had not disputed. He further submitted that the applicant had provided various Bank accounts and Mpesa statements, which support payments made by the deceased to her on diverse dates of 2015 and 2019, which were made by Citywall Ltd, and some payments were made by the deceased and other payments by Ben Mwenda, who is a nephew of the deceased. Counsel contended that the respondents did not tender any evidence to the contrary, which shows that the deceased maintained the applicant in their marriage.
66. Mr. Mwangi submitted that failure by the respondents to include the applicant and her children in the Petition shows fraudulent misrepresentation. He cited the case of Julius Kiptoo Rop & others v Leah Kipruto & others [2025] eKLR, where the Court of Appeal defined fraud as misrepresentation or concealment of material facts meant to induce another to act to his or her detriment. He also cited the case of Sabina Kamori Kiburi & others v Monicah Wairima [2025] eKLR and Re Estate of Moses Wachira Kimotho (Deceased) [2009] KEHC 3958 (KLR), which addressed the issue of disclosure of material facts. Counsel argued that the applicant has made out a case for revocation of the Grant issued, as required under Section 76 of the Law of Succession Act.
67. Mr. Mwangi urged this Court to order for accounts of the Estate, which has income generating assets such as shares of Citywall Hotel and the rental income on the developed assets. He maintained that the applicant and her children are dependants of the Estate under Section 29 of the Law of Succession Act and the Court should make an order for reasonable provision of their basic needs. He also urged this Court to award costs of the application to the applicant.
68. Mr. Kamau, learned Counsel for the respondents submitted on five issues - whether the applicant has proved marriage under Kikuyu customary law, whether a presumption of marriage arises in favour of the applicant, whether the applicant qualifies as a dependant, whether the Grant was obtained fraudulently or through concealment of material facts and whether the legal threshold for revocation of Grant has been met by the applicant.
69. Counsel argued that customary law marriage is proved by evidence and cited the case of Gituanja v Gituanja [1983] KLR 575, to support his assertion. He further quoted the case of Echaria v Echaria [2007] eKLR, to state that cohabitation alone does not constitute a customary marriage, unless mandatory rites are proved.
70. He contended that the marriage herein is based on alleged cohabitation, childbirth, photographs, a visit to the applicant’s grandmother’s home and payment of Kshs.20,000/=, without evidence from anyone else, other than the nuclear family. He relied on the case of Njoki v Mutheru [1985] KLR 874, which held that dowry payment without proof of negotiations and family participation is insufficient to prove a marriage. He submitted that the Court in the case of Hortensiah Wanjiku Yawe v Public Truste
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