1. Before this Court for determination is a Notice of Objection to the making of a grant of representation dated 20th February 2026 and lodged by Tabitha Kasia Wesa ( the Objector )
2. The deceased, David Oduor Opela passed away on 2nd September 2025. Thereafter, Beatrice Susan Achieng Ogutu and Matilda Awuor Oduor ( the Petitioners ) petitioned this Court for letters of administration intestate in respect of his estate.
3. The Objector contends inter-alia in her grounds of objection as follows; that the petition was filed without the Objector’s consent or knowledge; that the Objector has not been included in the list of those who survived the deceased; that the fact that the Objector was a dependant of the deceased has been concealed by the Petitioners; that the fact that the Objector’s daughter, Elizabeth Achieng Wesa was a dependant of the deceased has also been concealed by the Petitioners; that the Petitioners intend to unlawfully deprive the Objector and her said daughter of their rights over the deceased’s estate.
4. The 1 st Petitioner filed a replying affidavit dated 9/4/2026 on behalf of the 2 nd Petitioner wherein she averred inter alia; that she was one of the Petitioners in the matter and was swearing the affidavit in reply to the objection of Tabitha Kasia Wesa on her own behalf and with authority from the 2nd Petitioner; that they had filed the petition on 5th November 2025 as the wife of the deceased alongside the second Petitioner, Matilda Awuor Oduor as the daughter of the deceased; that the deceased had died in Myanmar where he was working for Irish Aid (under UNICEF) and that they had received the information through the Ministry of Foreign Affairs after information was sent to Kenya through the last contact by his employer found on his phone; that she was aware that the Objector was present at the funeral but did not participate as a wife adding that the Objector and her family members walked away because under their customs she could not bury the deceased after it was confirmed that she was not formally married; that she would apply and pray to be allowed to produce evidence of their actions during the hearing of the matter; that they went to the area chief who issued them with a letter confirming that she was the widow and only wife of the deceased and listing her children as beneficiaries as per the attached letter dated 21st October 2025 marked as BSAO/1.; that the chief had clearly confirmed that she was the wife of the deceased and named the children without mentioning the Objector anywhere; that the same chief had altered his earlier letter and stated in another letter dated 20th November 2025 that the Objector was a wife; that she was ready to prove her marriage to the deceased through evidence and called upon the Objector to bring her own evidence; that the Objector also introduced her daughter, Elizabeth Achieng Wesa but pointed out that the said daughter was never included in the chief's letter produced by the Objector as confirmed by the attached Chief's letter dated 20th November 2025 marked as BSAO/2; that to support her marriage to the deceased, she had evidence from elders who went to buy the animals for the dowry and that she would call them as witnesses; that on 17th April 2014, the deceased paid her dowry which was evidenced by a letter from the chief allowing him to transport the animals used for the dowry as per the attached chief's letter marked as BSAO/4; that she obtained the required sureties for filing the suit from the deceased's family and that none of them mentioned the Objector; that she was aware the deceased had properties in Busia, Bungoma, Siaya and other areas which the Objector was boasting were hers and specifically mentioned learning from friends about motor vehicles the Objector was using; that she was informed by close friends that the Objector had been claiming that she was capable of obtaining a marriage certificate which she dared her to produce; that the Objector had only intervened to object and distract the succession process after discovering that the deceased had an insurance policy with his employer; that the Objector was well aware that her children with the deceased were young and in school and wanted them to suffer as the succession was delayed; that the Objector's sole intention was to force her way into the succession and become a beneficiary or administrator because she was an acquaintance of the deceased; that while she could confirm the Objector might have been a mistress to the deceased, she was never a wife and was never introduced to her family as a wife; that she possessed evidence and witnesses to show that the deceased was her husband who maintained their children and that the Objector's daughter was never a dependant; that at one point, through the Objector's emissaries, the Objector had asked to be an Administrator of the estate which she refused and though a suggestion was raised for the Objector to receive 1 7 of the estate, the Objector later rejected it and filed the objection.]
5. The application was heard by way of viva voce evidence based on the witness statements filed by the parties.
6. Tabitha Kasia Wesa (OW1) was the Objector who stated that the deceased was her husband and that they had cohabited for nine years. She testified that she had one child Elizabeth Achieng Wesa aged 25 years who was in her custody before she met the deceased but whom the deceased took in as his own daughter. She formally adopted her witness statement as evidence and produced a list of documents dated 2nd June 2026 (Exhibits P1 to P7) as well as a supplementary list of documents dated 11th June 2026 (Exhibits Objector 8 to 11). She prayed that the court issues a grant of letters of administration of the estate to her.
In cross-examination, she stated that she was married to the deceased in December 2016 and that he took her to his parents. She explained that she met the deceased when he came to Nairobi. She listed those present at the introduction as her sisters-in-law and three uncles-in-law namely Ogola, Omena, and Sam noting that the deceased's father had already passed on. She clarified that Opela was not a sister to her husband but Margaret Yogo, a sister to the deceased and her mother-in-law were present. She stated that she was married in 2016 and was brought to the deceased's home on 23rd December 2018. She testified that she met the deceased in South Sudan in 2016 and noted that he was born on 8th October 1970. She stated that the deceased informed her that he had previously been married but that his first wife had left him with the children. She added that the deceased’s mother had also confirmed this to her. She stated that the deceased intended to pay dowry at her home but lacked the money to do so. She confirmed that there was no marriage certificate and that customary marriage procedures were not strictly followed. However, she stated that the deceased's parents had visited her parents and her parents had also visited their home during the deceased’s mother’s funeral though they did not discuss marriage issues. She stated that the deceased was in South Sudan between 2016 and 2021 and that she came to live at his home in 2021. She lived there when her mother-in-law passed on and used to take her to the hospital during her illness, though she did not possess the hospital documents. She noted that the 1st Petitioner came during the mother-in-law's funeral. She conceded that she was not given formal permission or consent by the 1st Petitioner when she got married to the deceased.
7. John Wambia (OW2) testified that he is a resident of Umala and knew the deceased, who was his brother’s son. He stated that the deceased had two wives, Beatrice and Tabitha. Beatrice is the eldest while Tabitha came in 2018. He stated that he wished to rely on his statement dated 12/6/26 as his evidence-in-chief. He recalled that a meeting was held at home before the body of the deceased arrived. The family accepted Tabitha, who has one child. On cross examination, he stated that he was born in 1975. He confirmed attending a meeting with Charles and Julius, who are older than him. He confirmed that his father and the deceased's father were brothers. He stated that the elders selected him to chair the meeting. He testified that there were no women present at the meeting which took place in September 2025 outside the deceased's parents' house, 200 meters away. He identified the clan as Kanyarwanda. He confirmed that a video recording of the meeting was made. In reexamination, He confirmed sharing the same grandfather with Charles as well as the deceased's father. He testified in Kiswahili that they agreed to deal with the burial of the deceased first at his parents' home.
8. Tobias Ochieng Odielo (OW3) testified that he is the Chief of East Alego and knew the deceased as he hailed from his area. He confirmed seeing letters regarding the estate of the deceased. He stated that the letter dated 10/10/25 only mentioned one wife, Beatrice as the second wife was not there. He wrote a second letter after both parties came to his office in Umala. He noted that John Nyakago is the deceased's maternal uncle. He stated that the deceased had two wives, Beatrice and Tabitha. On cross examination, he confirmed writing the letter dated 20/11/25 after reviewing the petitioner's earlier letter. He stated that he stands by the revocation letter dated 20/11/25. In reexamination, he stated that he does not determine custom management on the ground. He confirmed that the deceased’s uncle, petitioner and others came to see him. He stated that he has no evidence that the objector was married elsewhere and does not know where the objector currently resides. He further testified that he does not know of any house set up by the deceased and the objector.
9. Vitalis Ooko Raba (OW4) testified that he is a resident of Umala area and was a cousin to the deceased. He identified his witness statement dated 26/5/26 and adopted it as his evidence-in-chief. On cross examination, he stated that the deceased was his clan brother from the Kanyarwanda clan. He confirmed that the deceased was married to two wives. He testified that he accompanied the deceased to the objector's home in Homa Bay. The deceased brought the objector and she was allowed to occupy the home. He was present when the objector named Tabitha was brought to the home. He stated that the deceased had one child with Tabitha. He recalled that in 2000, the child visited the home and the chief recognized the deceased as her father. The deceased brought Tabitha to his home in Nairobi and later erected a house for her at home. He noted that the deceased built a house for her about eight years ago. He stated that the deceased’s first wife was called Mar Suba (and later Mar Goro). He stated that he was among the team that went to Homa Bay when the deceased was away. The parents were requested to pay dowry, but the deceased died a month later.
10. Gilbert Oluoch Oduor (OW5) testified that he resides in Umala and was a great friend to the deceased. He adopted his statement dated 26/5/26 as his evidence-in-chief. On cross examination, he stated that he knew the deceased for a long time and knew family members such as Akello, Yogo and others. He stated that the deceased called him and introduced the objector as his wife. He stated that the deceased lived with his second wife for about ten years. The deceased worked in South Sudan and used to visit his parents. Tabitha resided in the house and used to come and go. He testified that the deceased used to pay school fees for Tabitha's daughter. The deceased briefed him as a close friend about plans to visit the second wife's parents in Bungoma to pay dowry. He noted that when a man brings a lady home, she becomes a wife. The deceased called him on the phone, introduced his second wife Tabitha and daughter and they lived as a couple. The deceased bought land in Siaya area where he set up a house for the second wife.
11. George Owino Oganga (OW6) testified that the deceased was his stepbrother and they were quite close. He stated that the deceased had two wives. He adopted his statement dated 26/5/26 as his evidence-in-chief. He stated that during the funeral meeting in September 2025, he was the chairman of a committee comprised of twelve members including Charles Omena, John Wambia and Otieno. They recorded the meeting and he later prepared and downloaded the audio/video recording on 19/6/26. He produced the flash disk containing the video recording (Exhibit USB 2.0 2GB). On cross examination, he testified that he did not know the deceased’s children well as they lived in Nairobi. He confirmed being the funeral committee chairman. He stated that the deceased brought Tabitha in 2018. He confirmed that during the funeral, a fracas occurred and the Bungoma mourners moved out of the venue. He confirmed that a meeting took place where Charles Omena, John Ogato and others were present. He admitted that the video recording did not capture all faces clearly but confirmed it was recorded on an HMD (Nokia) phone. He denied deleting any part of the video, explaining that any gap in the recording occurred when he stepped outside.
12. Collins Odhiambo Onyango (OW7) testified that he resides in Wari, Kisumu as well as Umala. He knew the deceased as a distant cousin and close friend. He adopted his written statement dated 26/5/26 as his evidence-in-chief. On cross examination, he stated that he is from the Kanyarwanda clan and that the deceased was his cousin. He stated that he lived with the deceased in 2006–2007 in Umoja Estate, Nairobi. The deceased married the objector in 2018 while working in South Sudan. He testified that the deceased brought the objector to the village in 2022 and built a permanent house for her at the Umala property. He confirmed that the deceased accepted the objector's child named Achieng and supported her. He stated that the deceased stayed frequently in Umala whenever he was not away for contract work in South Sudan. He testified that both wives of the deceased have their respective homes in Umala and maintained that the objector was legally recognized as the deceased's wife. That marked the close of the Objector’s case.
13. Beatrice Susan Achieng Otieno (PET.W1) identified herself as the 1st Petitioner currently employed as a clerk in a consulting firm. She adopted her witness statements dated 28/05/2026 and 08/06/2026 as her evidence-in-chief alongside Petitioner Exhibits 1 through 16 (including documentary lists dated 28/05/2026 and 03/06/2026). She stated that she and the deceased were married in 1999 and lived together happily, acquiring several properties jointly. She noted that while they lived in various locations in Nairobi (Juja, Dandora, Umoja, Buruburu, Ngong, Syokimau) they were never legally separated. She asserted that the Objector was not a lawful wife of the deceased but merely a concubine or guest. She explained that she omitted the Objector from the petition for grant of letters of administration because the Objector was not a genuine beneficiary or spouse. Regarding the insurance proposal form (Exhibit 16), she stated that the original document bore her name as next-of-kin/spouse whereas another copy indicated the Objector’s name. She stated that the policy document had been altered or erased while the deceased was out of the country. She acknowledged that elders met in Nairobi following the deceased's passing to discuss burial plans with representatives from Bungoma (the Objector's family). She testified that no customary dowry had been paid for the Objector under traditional customs. She testified that during the burial at Umala, the Objector and her family members walked out and failed to participate fully in the final burial rites thereby disowning any status as a surviving spouse.
14. Charles Omondi ( PET.W2) a resident of Umala adopted his written statement dated 28/05/2026 as his evidence-in-chief. On cross examination, he testified that he occasionally saw the Objector in the Umala area between 2015 and 2016. He confirmed that the deceased had built a house at Umala following the death of his mother and recalled attending a gathering/housewarming party where the Objector was present. He stated that during burial planning meetings involving representatives from Bungoma, issues arose regarding the Objector’s status. He expressed the view that the Objector could not be recognized as a widow because she failed to participate in the burial proceedings of the deceased.
15. Julius Ogola (PET.W3), identified himself as a resident of Umala and adopted his written statement dated 28/05/2026 as his evidence-in-chief. He testified that he used to see the deceased and the Objector together at the Umala home whenever the deceased visited from Nairobi or abroad. He confirmed attending a housewarming party for the newly constructed house where the Objector was present. Under cross-examination and questioning by the Court, he stated that under customary expectations, a wife is required to participate in and perform burial duties for her deceased spouse. He asserted that the Objector's failure to stay and bury the deceased disowned her status as a wife. On re-examination, he clarified that no formal traditional marriage ceremony (dowry payment) was ever completed between the deceased and the Objector.
16. Kezia Aoko Odiero (PET.W4), testified that she is a resident of Umala and a paternal aunt (younger uncle’s wife) to the deceased. She adopted her statement dated 19/07/2026 as evidence. On cross examination, she stated that her home is located approximately 100 meters from the deceased’s homestead. She observed the Objector residing at the Umala home particularly after the death of the deceased’s mother whom the Objector assisted. She recalled attending a birthday party hosted by the deceased at the home. She noted that while the deceased brought various guests over time, he once referred to the Objector as a guest rather than a formal wife. She testified that the Objector and her family left prior to the completion of the burial concluding that by running away from the funeral, the Objector forfeited her claim as a wife.
17. Michael Odongo (PET. W5) adopted his written statement 16.07.2026 as his evidence-in-chief. On Cross-Examination, he testified that he works for a company based in Nairobi (since 2015) and seasonally visits his home in Umala village. He testified regarding financial transactions in 2019 concerning the purchase of a TV set for the deceased’s mother confirming that he assisted in purchasing the TV set. He stated that he was not aware of the Objector contributing towards the purchase of adjoining land or another house. He testified that during the funeral at Umala, mourners and family members from Bungoma (Objector’s relatives) attended but disagreements arose regarding their treatment and involvement. He noted that the Objector's name was initially included as a visitor/relative rather than a primary widow. He denied that the family mistreated or chased away the Objector stating that the Objector and her relatives voluntarily walked out during the burial. He confirmed that he never witnessed any formal customary marriage ceremony between the deceased and the Objector.
18. At the close of the petitioner’s case, parties were directed to file their respective submissions.
19. After careful analysis of the Notice of Objection, the response thereto, the oral testimonies of each party and the respective written submissions of the parties, I find the main issue for determination is whether the Objector’s Objection has merit.
20. The central question in this matter is whether the Objector was a wife of the deceased and thus a “dependant” under Section 29(a) of the Law of Succession Act. This is a dispute about marriage which is a matter of fact to be determined by evidence. The law in Kenya recognizes various forms of marriage including customary law marriages.
21. The 1st Petitioner has made a prima facie case for her marriage to the deceased, citing the payment of dowry and a letter from the Chief confirming her status. The Objector on her part has not provided detailed evidence of a customary marriage ceremony or the payment of dowry. She merely asserts that she is a widow. In Re Estate of Muthungu Macharia (Deceased) [2025] KEHC 7381 (KLR), the court emphasized that a grant can be revoked if it was obtained through the concealment of material facts such as the existence of other dependants. However, the existence of a dependant must be proved not merely alleged. In Gituanja v Gituanja [1983] KLR 575 , the Court of Appeal held that the existence of a marriage is a matter of fact proved by evidence.
22. The 1st Petitioner claims the Objector’s status is that of a mistress. The Objector has not provided any evidence of cohabitation, recognition by the family or the birth of children in a manner that would raise a presumption of marriage. Even if such a presumption were to arise, it would require a declaratory order from a court of competent jurisdiction. In the absence of such evidence, the Objector’s claim to being a wife remains unsubstantiated.
23. Under Section 26 of the Law of Succession Act, the court has the power to make reasonable provision for a dependant who has not been adequately provided for. However, this power is exercisable only after the relationship of “dependant” is established under Section 29. A person who is merely an acquaintance or mistress does not fall within the definition of a dependant. The Objector’s claim is at this stage a bare allegation lacking the evidentiary foundation required to displace the Petitioners’ position.
24. The Petitioners’ duty to disclose all persons with a prior right to administer the estate is paramount. Rule 26 of the Probate and Administration Rules requires that letters of administration shall not be granted to any applicant without notice to every other person entitled in the same degree as or in priority to the applicant. The 1st Petitioner’s affidavit admits that the Objector attended the funeral and further in her viva voce evidence confirmed that the Objector was a mistress of the deceased and that prior to the hearing herein, the parties had tried to reach a consent wherein the Objector was to given 1/7 of the estate but which was flatly rejected by the Objector. This suggests that the Petitioners were aware of the Objector’s existence and potential interest. The failure to include the Objector in the petition or obtain her consent is a procedural irregularity. However, the failure to obtain consent is not automatically fatal. The court must consider the substantive justice of the case. The Objector has been given an opportunity to be heard through the objection proceedings. More importantly, the court must consider whether the Objector has established a prima facie right that would justify delaying the administration of the estate.
25. In In re Estate of Albert Musyoka Mueti (Deceased) [2020] KEHC 6005 (KLR ), the court held that where the status of a dependant is disputed, the matter may proceed to full hearing. However, the court also recognized that the existence of a dispute does not automatically warrant the revocation of a grant. The court must weigh the evidence presented and determine whether the dispute is genuine or merely a delaying tactic. In this case, the Objector has not provided any documentary or witness evidence to support her claim of marriage or dependency. Her objection appears to be a late attempt to benefit from the deceased’s estate triggered by the discovery of the insurance policy as claimed by the Petitioners.
26. The Petitioners claim that the Objector was offered a share of 1/7 of the estate but refused and instead filed the objection. The Objector has not denied this allegation. This conduct suggests that the Objector is not seeking a fair determination of her rights but is instead trying to disrupt the succession process and checkmate the Petitioners. In Re Estate of Fredrick Clavence Kittany [2002] eKLR , the court emphasized that a grant should not be delayed or revoked based on unsubstantiated claims.
27. The court is mindful of the need to balance the rights of all parties with the need for the expeditious administration of the estate. The deceased died on 2nd September 2025, and that the petition was filed on 5th November 2025. The 1st Petitioner has averred that she has young children with the deceased who are in school and that the delay in succession would cause them to suffer. The Objector’s claim, if allowed to delay the proceedings without sufficient evidence, would be prejudicial to the Petitioners and the deceased’s children.
28. The Objector has failed to satisfy the court that she has a prima facie case as a dependant. Her claim is a bare assertion without any supporting evidence. The 1 st Petitioner has, on the other hand, provided some evidence of her marriage including a letter from the Chief allowing the transportation of dowry animals and a letter confirming the 1st Petitioner as the widow.
29. The court in Re Estate of Muthungu Macharia (Deceased) (supra) stated that an objection to a grant must be based on substantial grounds and not on mere allegations. The court further noted that where the objector fails to adduce credible evidence to support their claim, the objection should be dismissed.
30. Iam of the considered view that the most appropriate course of action is to allow the grant to be issued but with liberty to the Objector to file a protest under Section 68 of the Law of Succession Act and Rule 49 of the Probate and Administration Rules once the summons for confirmation of grant is filed. A protest is filed after the grant has been made and allows the court to determine the distribution of the estate. This approach ensures that the administration of the estate is not unduly delayed while still giving the Objector a forum to challenge the distribution.
31. Iam persuaded that the Objector’s claim is at best a dispute over distribution not over the administration of the estate. The Petitioners are the deceased’s wife and daughter and are therefore entitled to administer the estate. The Objector has not established a prior right to administer the estate that would justify denial of the issuance of the grant or revoking the same.
32. For the foregoing reasons, it is my finding that the Objection to the making of a grant of representation dated 20th February 2026 lacks merit. The same is hereby dismissed. Each party to bear their own costs.
Dated, signed and delivered at Siaya this 18 th day of September 2026
D. KEMEI
JUDGE
In the presence of:
Gikunda...............................for Petitioners
Ahomo for Amuga............................. for Objector
Maurine...................................... Court Assistant
RULING siaya hcf p&a. e015 OF 202527
2. The deceased, David Oduor Opela passed away on 2nd September 2025. Thereafter, Beatrice Susan Achieng Ogutu and Matilda Awuor Oduor ( the Petitioners ) petitioned this Court for letters of administration intestate in respect of his estate.
3. The Objector contends inter-alia in her grounds of objection as follows; that the petition was filed without the Objector’s consent or knowledge; that the Objector has not been included in the list of those who survived the deceased; that the fact that the Objector was a dependant of the deceased has been concealed by the Petitioners; that the fact that the Objector’s daughter, Elizabeth Achieng Wesa was a dependant of the deceased has also been concealed by the Petitioners; that the Petitioners intend to unlawfully deprive the Objector and her said daughter of their rights over the deceased’s estate.
4. The 1 st Petitioner filed a replying affidavit dated 9/4/2026 on behalf of the 2 nd Petitioner wherein she averred inter alia; that she was one of the Petitioners in the matter and was swearing the affidavit in reply to the objection of Tabitha Kasia Wesa on her own behalf and with authority from the 2nd Petitioner; that they had filed the petition on 5th November 2025 as the wife of the deceased alongside the second Petitioner, Matilda Awuor Oduor as the daughter of the deceased; that the deceased had died in Myanmar where he was working for Irish Aid (under UNICEF) and that they had received the information through the Ministry of Foreign Affairs after information was sent to Kenya through the last contact by his employer found on his phone; that she was aware that the Objector was present at the funeral but did not participate as a wife adding that the Objector and her family members walked away because under their customs she could not bury the deceased after it was confirmed that she was not formally married; that she would apply and pray to be allowed to produce evidence of their actions during the hearing of the matter; that they went to the area chief who issued them with a letter confirming that she was the widow and only wife of the deceased and listing her children as beneficiaries as per the attached letter dated 21st October 2025 marked as BSAO/1.; that the chief had clearly confirmed that she was the wife of the deceased and named the children without mentioning the Objector anywhere; that the same chief had altered his earlier letter and stated in another letter dated 20th November 2025 that the Objector was a wife; that she was ready to prove her marriage to the deceased through evidence and called upon the Objector to bring her own evidence; that the Objector also introduced her daughter, Elizabeth Achieng Wesa but pointed out that the said daughter was never included in the chief's letter produced by the Objector as confirmed by the attached Chief's letter dated 20th November 2025 marked as BSAO/2; that to support her marriage to the deceased, she had evidence from elders who went to buy the animals for the dowry and that she would call them as witnesses; that on 17th April 2014, the deceased paid her dowry which was evidenced by a letter from the chief allowing him to transport the animals used for the dowry as per the attached chief's letter marked as BSAO/4; that she obtained the required sureties for filing the suit from the deceased's family and that none of them mentioned the Objector; that she was aware the deceased had properties in Busia, Bungoma, Siaya and other areas which the Objector was boasting were hers and specifically mentioned learning from friends about motor vehicles the Objector was using; that she was informed by close friends that the Objector had been claiming that she was capable of obtaining a marriage certificate which she dared her to produce; that the Objector had only intervened to object and distract the succession process after discovering that the deceased had an insurance policy with his employer; that the Objector was well aware that her children with the deceased were young and in school and wanted them to suffer as the succession was delayed; that the Objector's sole intention was to force her way into the succession and become a beneficiary or administrator because she was an acquaintance of the deceased; that while she could confirm the Objector might have been a mistress to the deceased, she was never a wife and was never introduced to her family as a wife; that she possessed evidence and witnesses to show that the deceased was her husband who maintained their children and that the Objector's daughter was never a dependant; that at one point, through the Objector's emissaries, the Objector had asked to be an Administrator of the estate which she refused and though a suggestion was raised for the Objector to receive 1 7 of the estate, the Objector later rejected it and filed the objection.]
5. The application was heard by way of viva voce evidence based on the witness statements filed by the parties.
6. Tabitha Kasia Wesa (OW1) was the Objector who stated that the deceased was her husband and that they had cohabited for nine years. She testified that she had one child Elizabeth Achieng Wesa aged 25 years who was in her custody before she met the deceased but whom the deceased took in as his own daughter. She formally adopted her witness statement as evidence and produced a list of documents dated 2nd June 2026 (Exhibits P1 to P7) as well as a supplementary list of documents dated 11th June 2026 (Exhibits Objector 8 to 11). She prayed that the court issues a grant of letters of administration of the estate to her.
In cross-examination, she stated that she was married to the deceased in December 2016 and that he took her to his parents. She explained that she met the deceased when he came to Nairobi. She listed those present at the introduction as her sisters-in-law and three uncles-in-law namely Ogola, Omena, and Sam noting that the deceased's father had already passed on. She clarified that Opela was not a sister to her husband but Margaret Yogo, a sister to the deceased and her mother-in-law were present. She stated that she was married in 2016 and was brought to the deceased's home on 23rd December 2018. She testified that she met the deceased in South Sudan in 2016 and noted that he was born on 8th October 1970. She stated that the deceased informed her that he had previously been married but that his first wife had left him with the children. She added that the deceased’s mother had also confirmed this to her. She stated that the deceased intended to pay dowry at her home but lacked the money to do so. She confirmed that there was no marriage certificate and that customary marriage procedures were not strictly followed. However, she stated that the deceased's parents had visited her parents and her parents had also visited their home during the deceased’s mother’s funeral though they did not discuss marriage issues. She stated that the deceased was in South Sudan between 2016 and 2021 and that she came to live at his home in 2021. She lived there when her mother-in-law passed on and used to take her to the hospital during her illness, though she did not possess the hospital documents. She noted that the 1st Petitioner came during the mother-in-law's funeral. She conceded that she was not given formal permission or consent by the 1st Petitioner when she got married to the deceased.
7. John Wambia (OW2) testified that he is a resident of Umala and knew the deceased, who was his brother’s son. He stated that the deceased had two wives, Beatrice and Tabitha. Beatrice is the eldest while Tabitha came in 2018. He stated that he wished to rely on his statement dated 12/6/26 as his evidence-in-chief. He recalled that a meeting was held at home before the body of the deceased arrived. The family accepted Tabitha, who has one child. On cross examination, he stated that he was born in 1975. He confirmed attending a meeting with Charles and Julius, who are older than him. He confirmed that his father and the deceased's father were brothers. He stated that the elders selected him to chair the meeting. He testified that there were no women present at the meeting which took place in September 2025 outside the deceased's parents' house, 200 meters away. He identified the clan as Kanyarwanda. He confirmed that a video recording of the meeting was made. In reexamination, He confirmed sharing the same grandfather with Charles as well as the deceased's father. He testified in Kiswahili that they agreed to deal with the burial of the deceased first at his parents' home.
8. Tobias Ochieng Odielo (OW3) testified that he is the Chief of East Alego and knew the deceased as he hailed from his area. He confirmed seeing letters regarding the estate of the deceased. He stated that the letter dated 10/10/25 only mentioned one wife, Beatrice as the second wife was not there. He wrote a second letter after both parties came to his office in Umala. He noted that John Nyakago is the deceased's maternal uncle. He stated that the deceased had two wives, Beatrice and Tabitha. On cross examination, he confirmed writing the letter dated 20/11/25 after reviewing the petitioner's earlier letter. He stated that he stands by the revocation letter dated 20/11/25. In reexamination, he stated that he does not determine custom management on the ground. He confirmed that the deceased’s uncle, petitioner and others came to see him. He stated that he has no evidence that the objector was married elsewhere and does not know where the objector currently resides. He further testified that he does not know of any house set up by the deceased and the objector.
9. Vitalis Ooko Raba (OW4) testified that he is a resident of Umala area and was a cousin to the deceased. He identified his witness statement dated 26/5/26 and adopted it as his evidence-in-chief. On cross examination, he stated that the deceased was his clan brother from the Kanyarwanda clan. He confirmed that the deceased was married to two wives. He testified that he accompanied the deceased to the objector's home in Homa Bay. The deceased brought the objector and she was allowed to occupy the home. He was present when the objector named Tabitha was brought to the home. He stated that the deceased had one child with Tabitha. He recalled that in 2000, the child visited the home and the chief recognized the deceased as her father. The deceased brought Tabitha to his home in Nairobi and later erected a house for her at home. He noted that the deceased built a house for her about eight years ago. He stated that the deceased’s first wife was called Mar Suba (and later Mar Goro). He stated that he was among the team that went to Homa Bay when the deceased was away. The parents were requested to pay dowry, but the deceased died a month later.
10. Gilbert Oluoch Oduor (OW5) testified that he resides in Umala and was a great friend to the deceased. He adopted his statement dated 26/5/26 as his evidence-in-chief. On cross examination, he stated that he knew the deceased for a long time and knew family members such as Akello, Yogo and others. He stated that the deceased called him and introduced the objector as his wife. He stated that the deceased lived with his second wife for about ten years. The deceased worked in South Sudan and used to visit his parents. Tabitha resided in the house and used to come and go. He testified that the deceased used to pay school fees for Tabitha's daughter. The deceased briefed him as a close friend about plans to visit the second wife's parents in Bungoma to pay dowry. He noted that when a man brings a lady home, she becomes a wife. The deceased called him on the phone, introduced his second wife Tabitha and daughter and they lived as a couple. The deceased bought land in Siaya area where he set up a house for the second wife.
11. George Owino Oganga (OW6) testified that the deceased was his stepbrother and they were quite close. He stated that the deceased had two wives. He adopted his statement dated 26/5/26 as his evidence-in-chief. He stated that during the funeral meeting in September 2025, he was the chairman of a committee comprised of twelve members including Charles Omena, John Wambia and Otieno. They recorded the meeting and he later prepared and downloaded the audio/video recording on 19/6/26. He produced the flash disk containing the video recording (Exhibit USB 2.0 2GB). On cross examination, he testified that he did not know the deceased’s children well as they lived in Nairobi. He confirmed being the funeral committee chairman. He stated that the deceased brought Tabitha in 2018. He confirmed that during the funeral, a fracas occurred and the Bungoma mourners moved out of the venue. He confirmed that a meeting took place where Charles Omena, John Ogato and others were present. He admitted that the video recording did not capture all faces clearly but confirmed it was recorded on an HMD (Nokia) phone. He denied deleting any part of the video, explaining that any gap in the recording occurred when he stepped outside.
12. Collins Odhiambo Onyango (OW7) testified that he resides in Wari, Kisumu as well as Umala. He knew the deceased as a distant cousin and close friend. He adopted his written statement dated 26/5/26 as his evidence-in-chief. On cross examination, he stated that he is from the Kanyarwanda clan and that the deceased was his cousin. He stated that he lived with the deceased in 2006–2007 in Umoja Estate, Nairobi. The deceased married the objector in 2018 while working in South Sudan. He testified that the deceased brought the objector to the village in 2022 and built a permanent house for her at the Umala property. He confirmed that the deceased accepted the objector's child named Achieng and supported her. He stated that the deceased stayed frequently in Umala whenever he was not away for contract work in South Sudan. He testified that both wives of the deceased have their respective homes in Umala and maintained that the objector was legally recognized as the deceased's wife. That marked the close of the Objector’s case.
13. Beatrice Susan Achieng Otieno (PET.W1) identified herself as the 1st Petitioner currently employed as a clerk in a consulting firm. She adopted her witness statements dated 28/05/2026 and 08/06/2026 as her evidence-in-chief alongside Petitioner Exhibits 1 through 16 (including documentary lists dated 28/05/2026 and 03/06/2026). She stated that she and the deceased were married in 1999 and lived together happily, acquiring several properties jointly. She noted that while they lived in various locations in Nairobi (Juja, Dandora, Umoja, Buruburu, Ngong, Syokimau) they were never legally separated. She asserted that the Objector was not a lawful wife of the deceased but merely a concubine or guest. She explained that she omitted the Objector from the petition for grant of letters of administration because the Objector was not a genuine beneficiary or spouse. Regarding the insurance proposal form (Exhibit 16), she stated that the original document bore her name as next-of-kin/spouse whereas another copy indicated the Objector’s name. She stated that the policy document had been altered or erased while the deceased was out of the country. She acknowledged that elders met in Nairobi following the deceased's passing to discuss burial plans with representatives from Bungoma (the Objector's family). She testified that no customary dowry had been paid for the Objector under traditional customs. She testified that during the burial at Umala, the Objector and her family members walked out and failed to participate fully in the final burial rites thereby disowning any status as a surviving spouse.
14. Charles Omondi ( PET.W2) a resident of Umala adopted his written statement dated 28/05/2026 as his evidence-in-chief. On cross examination, he testified that he occasionally saw the Objector in the Umala area between 2015 and 2016. He confirmed that the deceased had built a house at Umala following the death of his mother and recalled attending a gathering/housewarming party where the Objector was present. He stated that during burial planning meetings involving representatives from Bungoma, issues arose regarding the Objector’s status. He expressed the view that the Objector could not be recognized as a widow because she failed to participate in the burial proceedings of the deceased.
15. Julius Ogola (PET.W3), identified himself as a resident of Umala and adopted his written statement dated 28/05/2026 as his evidence-in-chief. He testified that he used to see the deceased and the Objector together at the Umala home whenever the deceased visited from Nairobi or abroad. He confirmed attending a housewarming party for the newly constructed house where the Objector was present. Under cross-examination and questioning by the Court, he stated that under customary expectations, a wife is required to participate in and perform burial duties for her deceased spouse. He asserted that the Objector's failure to stay and bury the deceased disowned her status as a wife. On re-examination, he clarified that no formal traditional marriage ceremony (dowry payment) was ever completed between the deceased and the Objector.
16. Kezia Aoko Odiero (PET.W4), testified that she is a resident of Umala and a paternal aunt (younger uncle’s wife) to the deceased. She adopted her statement dated 19/07/2026 as evidence. On cross examination, she stated that her home is located approximately 100 meters from the deceased’s homestead. She observed the Objector residing at the Umala home particularly after the death of the deceased’s mother whom the Objector assisted. She recalled attending a birthday party hosted by the deceased at the home. She noted that while the deceased brought various guests over time, he once referred to the Objector as a guest rather than a formal wife. She testified that the Objector and her family left prior to the completion of the burial concluding that by running away from the funeral, the Objector forfeited her claim as a wife.
17. Michael Odongo (PET. W5) adopted his written statement 16.07.2026 as his evidence-in-chief. On Cross-Examination, he testified that he works for a company based in Nairobi (since 2015) and seasonally visits his home in Umala village. He testified regarding financial transactions in 2019 concerning the purchase of a TV set for the deceased’s mother confirming that he assisted in purchasing the TV set. He stated that he was not aware of the Objector contributing towards the purchase of adjoining land or another house. He testified that during the funeral at Umala, mourners and family members from Bungoma (Objector’s relatives) attended but disagreements arose regarding their treatment and involvement. He noted that the Objector's name was initially included as a visitor/relative rather than a primary widow. He denied that the family mistreated or chased away the Objector stating that the Objector and her relatives voluntarily walked out during the burial. He confirmed that he never witnessed any formal customary marriage ceremony between the deceased and the Objector.
18. At the close of the petitioner’s case, parties were directed to file their respective submissions.
19. After careful analysis of the Notice of Objection, the response thereto, the oral testimonies of each party and the respective written submissions of the parties, I find the main issue for determination is whether the Objector’s Objection has merit.
20. The central question in this matter is whether the Objector was a wife of the deceased and thus a “dependant” under Section 29(a) of the Law of Succession Act. This is a dispute about marriage which is a matter of fact to be determined by evidence. The law in Kenya recognizes various forms of marriage including customary law marriages.
21. The 1st Petitioner has made a prima facie case for her marriage to the deceased, citing the payment of dowry and a letter from the Chief confirming her status. The Objector on her part has not provided detailed evidence of a customary marriage ceremony or the payment of dowry. She merely asserts that she is a widow. In Re Estate of Muthungu Macharia (Deceased) [2025] KEHC 7381 (KLR), the court emphasized that a grant can be revoked if it was obtained through the concealment of material facts such as the existence of other dependants. However, the existence of a dependant must be proved not merely alleged. In Gituanja v Gituanja [1983] KLR 575 , the Court of Appeal held that the existence of a marriage is a matter of fact proved by evidence.
22. The 1st Petitioner claims the Objector’s status is that of a mistress. The Objector has not provided any evidence of cohabitation, recognition by the family or the birth of children in a manner that would raise a presumption of marriage. Even if such a presumption were to arise, it would require a declaratory order from a court of competent jurisdiction. In the absence of such evidence, the Objector’s claim to being a wife remains unsubstantiated.
23. Under Section 26 of the Law of Succession Act, the court has the power to make reasonable provision for a dependant who has not been adequately provided for. However, this power is exercisable only after the relationship of “dependant” is established under Section 29. A person who is merely an acquaintance or mistress does not fall within the definition of a dependant. The Objector’s claim is at this stage a bare allegation lacking the evidentiary foundation required to displace the Petitioners’ position.
24. The Petitioners’ duty to disclose all persons with a prior right to administer the estate is paramount. Rule 26 of the Probate and Administration Rules requires that letters of administration shall not be granted to any applicant without notice to every other person entitled in the same degree as or in priority to the applicant. The 1st Petitioner’s affidavit admits that the Objector attended the funeral and further in her viva voce evidence confirmed that the Objector was a mistress of the deceased and that prior to the hearing herein, the parties had tried to reach a consent wherein the Objector was to given 1/7 of the estate but which was flatly rejected by the Objector. This suggests that the Petitioners were aware of the Objector’s existence and potential interest. The failure to include the Objector in the petition or obtain her consent is a procedural irregularity. However, the failure to obtain consent is not automatically fatal. The court must consider the substantive justice of the case. The Objector has been given an opportunity to be heard through the objection proceedings. More importantly, the court must consider whether the Objector has established a prima facie right that would justify delaying the administration of the estate.
25. In In re Estate of Albert Musyoka Mueti (Deceased) [2020] KEHC 6005 (KLR ), the court held that where the status of a dependant is disputed, the matter may proceed to full hearing. However, the court also recognized that the existence of a dispute does not automatically warrant the revocation of a grant. The court must weigh the evidence presented and determine whether the dispute is genuine or merely a delaying tactic. In this case, the Objector has not provided any documentary or witness evidence to support her claim of marriage or dependency. Her objection appears to be a late attempt to benefit from the deceased’s estate triggered by the discovery of the insurance policy as claimed by the Petitioners.
26. The Petitioners claim that the Objector was offered a share of 1/7 of the estate but refused and instead filed the objection. The Objector has not denied this allegation. This conduct suggests that the Objector is not seeking a fair determination of her rights but is instead trying to disrupt the succession process and checkmate the Petitioners. In Re Estate of Fredrick Clavence Kittany [2002] eKLR , the court emphasized that a grant should not be delayed or revoked based on unsubstantiated claims.
27. The court is mindful of the need to balance the rights of all parties with the need for the expeditious administration of the estate. The deceased died on 2nd September 2025, and that the petition was filed on 5th November 2025. The 1st Petitioner has averred that she has young children with the deceased who are in school and that the delay in succession would cause them to suffer. The Objector’s claim, if allowed to delay the proceedings without sufficient evidence, would be prejudicial to the Petitioners and the deceased’s children.
28. The Objector has failed to satisfy the court that she has a prima facie case as a dependant. Her claim is a bare assertion without any supporting evidence. The 1 st Petitioner has, on the other hand, provided some evidence of her marriage including a letter from the Chief allowing the transportation of dowry animals and a letter confirming the 1st Petitioner as the widow.
29. The court in Re Estate of Muthungu Macharia (Deceased) (supra) stated that an objection to a grant must be based on substantial grounds and not on mere allegations. The court further noted that where the objector fails to adduce credible evidence to support their claim, the objection should be dismissed.
30. Iam of the considered view that the most appropriate course of action is to allow the grant to be issued but with liberty to the Objector to file a protest under Section 68 of the Law of Succession Act and Rule 49 of the Probate and Administration Rules once the summons for confirmation of grant is filed. A protest is filed after the grant has been made and allows the court to determine the distribution of the estate. This approach ensures that the administration of the estate is not unduly delayed while still giving the Objector a forum to challenge the distribution.
31. Iam persuaded that the Objector’s claim is at best a dispute over distribution not over the administration of the estate. The Petitioners are the deceased’s wife and daughter and are therefore entitled to administer the estate. The Objector has not established a prior right to administer the estate that would justify denial of the issuance of the grant or revoking the same.
32. For the foregoing reasons, it is my finding that the Objection to the making of a grant of representation dated 20th February 2026 lacks merit. The same is hereby dismissed. Each party to bear their own costs.
Dated, signed and delivered at Siaya this 18 th day of September 2026
D. KEMEI
JUDGE
In the presence of:
Gikunda...............................for Petitioners
Ahomo for Amuga............................. for Objector
Maurine...................................... Court Assistant
RULING siaya hcf p&a. e015 OF 202527