REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT BUNGOMA
SUCCESSION CAUSE NO. 43 OF 2012
IN THE MATTER OF THE ESTATE OF DAUDI CHOGO MAKAMA - DECEASED
JOSEPHAT LIJODI .................................................. APPLICANT
- VERSUS -
SAMUEL ASHEM CHOGO ................. PETITIONER/RESPONDENT
R U L I N G
1. This succession cause relates to the estate of DAUDI CHOGO MAKAMA (“the deceased”) who died on 16/4/2004 . The respondent applied for and obtained Grant of Letters of Administration on 20/4/2012 and had it confirmed on the 6/2/2023 .
2. The applicant, a son of the deceased and a brother of the respondent, has moved this Court by Summons dated 6/4/2024 seeking the revocation of the grant on the grounds that, in distributing the deceased’s estate under the confirmed grant, the respondent included his son, Meshack Ashem, whereas Meshack was never on the list of beneficiaries of the deceased’s estate; that, together with his mother, Loida Muhonja, they had sold their shares of the deceased’s estate to one Justus Simiyu Wepukhulu and were therefore not supposed to benefit from the deceased’s estate; and that he did not consent to the mode of distribution advanced by the respondent. The applicant further contended that, as per the Certificate of Confirmation of Grant, the acreage of the distributed land measured 1.4Ha, whereas the deceased’s estate measured 0.95Ha.
3. The matter proceeded by way of viva voce evidence. The applicant, as Pw1, reiterated the averments made in his summons and detailed in the supporting affidavit. In cross-examination, the applicant was firm that he and his mother were not involved in the proceedings leading up to the issuance of the grant to the respondent.
4. Pw2, Justus Simiyu Wepukhulu adopted his witness statement dated 19/7/2024 as his evidence in chief, wherein he had detailed that he purchased a portion measuring 0.55 acres to be carved out of the shares of the applicant and his mother in 2009. That consequently he was duly recognised as a liability to the deceased’s estate and thus entitled to benefit from the same vide two judgements delivered by this court on the 6/8/2019 and 25/11/2022. That he was aware that the respondent had illegally included his son as a beneficiary of the estate and distributed 0.07 Ha to him.
5. Pw3, Loida Muhonja, the deceased's wife, adopted her witness statement dated 19/7/2024 as her evidence in chief. She corroborated the testimony of Pw1 and Pw2.
6. Samuel Ashem Chogo testified as DW1. He stated that the deceased passed away, leaving behind one wife and 5 children. He further stated that two of his siblings, Jane and the applicant, disappeared sometime in 1995; however, in his application for a letter of administration, he included them. He also added his son, Meshack Ashema, when he sought confirmation of the grant, despite also providing for himself.
7. Dw1 initially testified that he did not know Justus Wephukulu, but he also testified that the court granted him 0.5Ha from the estate, even though it did not recognise him as a purchaser. He further testified that the court’s distribution totaled 1.4Ha, whereas the deceased’s estate measured 0.95Ha. He stated that he wished the matter could be discussed at home; however, the applicant failed to approach him before coming to court. He concluded that the court ought not to revoke the grant. When questioned by court, Dw1 testified that no title had been taken out for the distribution over the deceased’s estate.
8. The Summons was disposed off by way of written submissions which this court has duly considered.
DETERMINATION
9. The only issue for determination is whether the applicant’s application meets the threshold for revocation of a grant within the meaning of Section 76 of the Law of Succession Act. Section 76 provides: -
“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.”
10. In Albert Imbuga Kisigwa v Recho Kavai Kisigwa Succession Cause No. 158 of 2000 Mwita J (as he was then) stated as follows: -
“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 wrong doing 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 interests of all beneficiaries entitled to the deceased’s estate and ensure that the action taken will be for the interest of justice.” [Own emphasis]
11. The facts of this case are not disputed. The applicant alleges that the grant was obtained by concealing material facts, namely the inclusion of the applicant’s son as a beneficiary of the deceased’s estate and the fact that the total acreage distributed, as per the Certificate of Confirmation of grant, totals 1.4 Ha, whereas the deceased’s estate measures 0.95 Ha.
12. On the first issue, it is trite that grandchildren cannot inherit from a deceased’s estate when their parents are still alive. In the matter of the estate of Veronica Njoki Wakago, Succession Cause No. 1974/2008, Musyoka J. stated as follows;
“Under Part V, grandchildren have no right to inherit their grandparents who die intestate after 1 st July, 1981. The argument is that such grandchildren should inherit from their own parents. This means that the grandchildren can only inherit their grandparents’ indirectly through their own parents, the children of the deceased. The children inherit first and thereafter grandchildren inherit from the children. The only time grandchildren inherit directly from their grandparents is when the grandchildren’s own parents are dead. The grandchildren step into the shoes of their parents and take directly the share that ought to have gone to the said parents. In this case, the applicant’s mother survived the deceased. She is the one entitled under Part V to inherit her mother, the applicant’s deceased grandmother. The applicant clearly has no claim under Part V so long as his mother survived the deceased.”
13. It is thus clear that the respondent erred by providing for his son. This error is compounded by the fact that the respondent had never listed his son as a beneficiary of the deceased’s estate in his initial application for Letters of Administration. This points to mischief on his part, as his personal estate would benefit twice from the deceased’s estate at the expense of other beneficiaries.
14. Regarding the discrepancy between the size of the deceased’s estate as confirmed for distribution and the actual size of the estate, it is my view that this is not an error that can be rectified under section 74 of the Law of Succession, but rather an error that renders the grant issued and confirmed to the applicant herein inoperable.
15. In conclusion, the evidence adduced leads me to conclude that the Grant of Letters of Administration, issued on 20/4/2012 and confirmed on 6/2/2023, cannot be sustained and is hereby revoked. Let the parties apply for a fresh grant in the normal manner.
Dated, signed and delivered virtually this 21 st Day of May 2026
R.E. OUGO
JUDGE
In the presence of:
Applicant /Absent
Samuel Chogo
Wilkister C/A
SUCCESSION CAUSE NO.43 OF 2021- RULING
IN THE HIGH COURT OF KENYA AT BUNGOMA
SUCCESSION CAUSE NO. 43 OF 2012
IN THE MATTER OF THE ESTATE OF DAUDI CHOGO MAKAMA - DECEASED
JOSEPHAT LIJODI .................................................. APPLICANT
- VERSUS -
SAMUEL ASHEM CHOGO ................. PETITIONER/RESPONDENT
R U L I N G
1. This succession cause relates to the estate of DAUDI CHOGO MAKAMA (“the deceased”) who died on 16/4/2004 . The respondent applied for and obtained Grant of Letters of Administration on 20/4/2012 and had it confirmed on the 6/2/2023 .
2. The applicant, a son of the deceased and a brother of the respondent, has moved this Court by Summons dated 6/4/2024 seeking the revocation of the grant on the grounds that, in distributing the deceased’s estate under the confirmed grant, the respondent included his son, Meshack Ashem, whereas Meshack was never on the list of beneficiaries of the deceased’s estate; that, together with his mother, Loida Muhonja, they had sold their shares of the deceased’s estate to one Justus Simiyu Wepukhulu and were therefore not supposed to benefit from the deceased’s estate; and that he did not consent to the mode of distribution advanced by the respondent. The applicant further contended that, as per the Certificate of Confirmation of Grant, the acreage of the distributed land measured 1.4Ha, whereas the deceased’s estate measured 0.95Ha.
3. The matter proceeded by way of viva voce evidence. The applicant, as Pw1, reiterated the averments made in his summons and detailed in the supporting affidavit. In cross-examination, the applicant was firm that he and his mother were not involved in the proceedings leading up to the issuance of the grant to the respondent.
4. Pw2, Justus Simiyu Wepukhulu adopted his witness statement dated 19/7/2024 as his evidence in chief, wherein he had detailed that he purchased a portion measuring 0.55 acres to be carved out of the shares of the applicant and his mother in 2009. That consequently he was duly recognised as a liability to the deceased’s estate and thus entitled to benefit from the same vide two judgements delivered by this court on the 6/8/2019 and 25/11/2022. That he was aware that the respondent had illegally included his son as a beneficiary of the estate and distributed 0.07 Ha to him.
5. Pw3, Loida Muhonja, the deceased's wife, adopted her witness statement dated 19/7/2024 as her evidence in chief. She corroborated the testimony of Pw1 and Pw2.
6. Samuel Ashem Chogo testified as DW1. He stated that the deceased passed away, leaving behind one wife and 5 children. He further stated that two of his siblings, Jane and the applicant, disappeared sometime in 1995; however, in his application for a letter of administration, he included them. He also added his son, Meshack Ashema, when he sought confirmation of the grant, despite also providing for himself.
7. Dw1 initially testified that he did not know Justus Wephukulu, but he also testified that the court granted him 0.5Ha from the estate, even though it did not recognise him as a purchaser. He further testified that the court’s distribution totaled 1.4Ha, whereas the deceased’s estate measured 0.95Ha. He stated that he wished the matter could be discussed at home; however, the applicant failed to approach him before coming to court. He concluded that the court ought not to revoke the grant. When questioned by court, Dw1 testified that no title had been taken out for the distribution over the deceased’s estate.
8. The Summons was disposed off by way of written submissions which this court has duly considered.
DETERMINATION
9. The only issue for determination is whether the applicant’s application meets the threshold for revocation of a grant within the meaning of Section 76 of the Law of Succession Act. Section 76 provides: -
“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.”
10. In Albert Imbuga Kisigwa v Recho Kavai Kisigwa Succession Cause No. 158 of 2000 Mwita J (as he was then) stated as follows: -
“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 wrong doing 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 interests of all beneficiaries entitled to the deceased’s estate and ensure that the action taken will be for the interest of justice.” [Own emphasis]
11. The facts of this case are not disputed. The applicant alleges that the grant was obtained by concealing material facts, namely the inclusion of the applicant’s son as a beneficiary of the deceased’s estate and the fact that the total acreage distributed, as per the Certificate of Confirmation of grant, totals 1.4 Ha, whereas the deceased’s estate measures 0.95 Ha.
12. On the first issue, it is trite that grandchildren cannot inherit from a deceased’s estate when their parents are still alive. In the matter of the estate of Veronica Njoki Wakago, Succession Cause No. 1974/2008, Musyoka J. stated as follows;
“Under Part V, grandchildren have no right to inherit their grandparents who die intestate after 1 st July, 1981. The argument is that such grandchildren should inherit from their own parents. This means that the grandchildren can only inherit their grandparents’ indirectly through their own parents, the children of the deceased. The children inherit first and thereafter grandchildren inherit from the children. The only time grandchildren inherit directly from their grandparents is when the grandchildren’s own parents are dead. The grandchildren step into the shoes of their parents and take directly the share that ought to have gone to the said parents. In this case, the applicant’s mother survived the deceased. She is the one entitled under Part V to inherit her mother, the applicant’s deceased grandmother. The applicant clearly has no claim under Part V so long as his mother survived the deceased.”
13. It is thus clear that the respondent erred by providing for his son. This error is compounded by the fact that the respondent had never listed his son as a beneficiary of the deceased’s estate in his initial application for Letters of Administration. This points to mischief on his part, as his personal estate would benefit twice from the deceased’s estate at the expense of other beneficiaries.
14. Regarding the discrepancy between the size of the deceased’s estate as confirmed for distribution and the actual size of the estate, it is my view that this is not an error that can be rectified under section 74 of the Law of Succession, but rather an error that renders the grant issued and confirmed to the applicant herein inoperable.
15. In conclusion, the evidence adduced leads me to conclude that the Grant of Letters of Administration, issued on 20/4/2012 and confirmed on 6/2/2023, cannot be sustained and is hereby revoked. Let the parties apply for a fresh grant in the normal manner.
Dated, signed and delivered virtually this 21 st Day of May 2026
R.E. OUGO
JUDGE
In the presence of:
Applicant /Absent
Samuel Chogo
Wilkister C/A
SUCCESSION CAUSE NO.43 OF 2021- RULING