Coram: Before Justice R. Nyakundi
M/S A. Habwe Advocates & Associates
M/S Elunga’ata & Co. Advocates
FACTS
1. George Makoba Omboko, the deceased herein, died intestate on 25th August 2003 at Sagam Community Hospital. He was a polygamous man. More than two decades after his death his estate remains unadministered in law, and his children remain locked in a dispute that has outlived several of them.
2. These are not appellate proceedings. This Court sits in its original jurisdiction as a probate Court. Before me is a Summons for Revocation and Annulment of Grant dated 28th December 2018 and filed on 19th February 2019, taken out by Japheth Makoba Omboko, a son of the deceased by his second house. It is brought under sections 47, 48 and 76 of the Law of Succession Act, Cap 160, and Rules 44 and 73 of the Probate and Administration Rules. It is opposed by the Petitioner, Rebbeccah Olesi Nanyendo, a daughter of the deceased by his first house, to whom the grant was made.
3. The cause was commenced at Kakamega as Succession Cause No. 633 of 2009 and has since been transferred to this station and renumbered. Three discrepancies on the face of the record must be addressed before going further, because a judgment must operate on ascertained facts.
4. First, as to the dates of the grant. The Summons pleads that letters of administration intestate were made to the Petitioner on 21st December 2012 and confirmed on 8th May 2012 by Chitembwe J. at Kakamega. A grant cannot be confirmed some seven months before it is made. The Objector's submissions compound the difficulty by rendering the confirmation date as “08/05/20212”. One or other of the pleaded dates is plainly a typographical error. Nothing turns on the precise dates, and I frame my orders by reference to the grant and certificate of confirmation issued in Kakamega High Court Succession Cause No. 633 of 2009 rather than to dates the record does not establish. The Deputy Registrar will ascertain the correct dates from the file when extracting the order.
5. Second, as to the date of death. The Objector's submissions open by giving 25th August 2008 but later give 25th August 2003. The Petitioner's submissions and her replying affidavit both give 2003. I find the deceased died on 25th August 2003.
6. Third, as to the composition of the family. The parties are not agreed on how many wives the deceased married, in what order, or how many children each bore. That disagreement is not peripheral. It goes to the heart of what a Court must know before it can administer a polygamous estate under section 40 of the Act, and I return to it below.
THE PLEADINGS
i. The Summons and supporting affidavit
7. By the Summons the Objector seeks, in substance, four orders: that the grant of letters of administration intestate made to the Petitioner, and the certificate of confirmation thereof, be revoked and/or annulled; that fresh letters issue jointly to the Petitioner and to himself; that all transactions entered into by the Petitioner and any third party after the death of the deceased, and thereafter upon confirmation, in respect of West/Bunyore/Ebusiralo/132,West/Bunyore/Ebusiralo/2184 and West/Bunyore/Ebusikhale/117 be declared null and void and set aside; and that costs be awarded to him.
8. The Summons is supported by his affidavit sworn on 28th December 2018. He deposes that he is a beneficiary and that the Petitioner is his step-sister; that his mother bore Johnstone Mwenje Libuli (deceased), Ann Atemo Makoba (who died in 2013), Jenepher Nyapela Makoba and Antony Francis
Makoba; that the deceased in his lifetime bequeathed
West/Bunyore/Ebusiralo/132 to Johnstone Mwenje Libuli, who has since died and is succeeded by Eddy Mbati; that West/Bunyore/Ebusiralo/2184 (0.38 Ha) and West/Bunyore/Ebusikhale/117 (0.9 acres) fell for distribution; that the Petitioner instead distributed to herself and to one John Sambiri Mudaki, a stranger to the family; that she has had the balance transferred by transmission into her own name; that she has leased one of the properties to a school and earns profits which remain undistributed; and that none of the other beneficiaries was notified of, enlisted in, or participated in the process leading to the grant or its confirmation.
ii. The Petitioner's replying affidavits
9. The Petitioner relies on a replying affidavit sworn on 21st January 2020 and a further replying affidavit sworn on 2nd March 2023 and filed on 9th March 2023.
10. In the latter she sets out the family as follows. Mary Achungo, the first wife, whom she says is alive, bore Adah Okaya Wangila, Julia Asami (deceased), Rebeccah Olesi, Phoebe Atero (deceased), Jesca Makoba (deceased) and Sophia Makoba. Margaret Makoba, the second wife, now deceased, bore Ann Atemo Makoba (deceased), Japheth Makoba, Jenepher Makoba and Antony Makoba. A third wife, Lucy, died without issue.
11. She deposes that after her father's death Margaret remained in Mombasa with her children, occupying and carrying on business on his property there; that she herself stayed with and cared for her father until he died; that the Objector and his siblings abandoned their father in life and in death and that the Objector never set foot at the funeral; that her father had sold part of his property before he died and that she initiated the succession to assist the purchasers process their titles; that the deceased had property in Mombasa which the Objector and his siblings took exclusively; that Jenepher and Antony have received their portions; that the Objector has refused his inheritance, saying that he is a man and cannot share his father's property with a girl child; that the property can be divided into two, the first house taking the upper portion and the second the lower; that she is agreeable to Court-annexed mediation; that it is not true that she has not involved the other siblings; and that it is not possible to conduct succession proceedings secretly given the requirements of notice and gazettement.
THE EVIDENCE PRESENTED BY EACH SIDE
12. The parties have not called oral evidence beyond the material filed. I have considered the Summons and supporting affidavit, the replying affidavits, the witness statements and lists of witnesses and documents filed by each side, the Objector's list of exhibits, and the written submissions.
i. The Petitioner's witnesses
13. Four witness statements were filed for the Petitioner on 9th March 2023, by Adah Okaya Wangila, Janepher Makoba, Anthony Francis Makoba and Sophie Makoba. They are in materially identical terms. Each deposes to being a child of the deceased; to knowing that the land at Bunyore/Ebusikhale 132 and 117 belonged to their father; that the children sat and appointed Rebbeccah Olesi Nanyendo to be administrator and conduct the succession; that the proceedings were done and everyone was notified; that the property was shared equally among the beneficiaries; that they fully supported the transaction; and that each is satisfied with his or her share. Those of Anthony Francis Makoba and Sophie Makoba add that everyone was notified “including our brother Japheth”.
14. Two features deserve notice. The first is that Janepher Makoba and Anthony Francis Makoba are children of the second house — the Objector's own full siblings — and they support the Petitioner. That carries some weight in her favour on the question of family consensus. The second is that all four statements are dated in March 2023: they were made some fourteen years after the petition was filed and four years after this Summons was taken out. They are not contemporaneous evidence of what was disclosed to the Court in 2009. A statement made in 2023 that “everyone was notified” cannot supply a disclosure that was, or was not, made to the probate Court more than a decade earlier. ii. The Objector's witnesses
15. Three witness statements were filed for the Objector on 20th September 2022.
16. Nason Tiema Mbati, chairman of the Abasiralo community, states that on 25th June 2022 he was invited to participate, as a community leader, in family discussions concerning the estate; that he learnt the Petitioner had initiated succession proceedings without consulting her immediate family or the clan; that she had been invited to two earlier meetings and had neither responded nor attended, but agreed to attend a third on 25th June 2022, at which all the children attended save Sophie Makoba, absent with apologies; that it was agreed everything done without involving the siblings should be cancelled and the properties reverted to the name of the deceased for distribution after due process; that any child left out be incorporated; that two antagonistic factions had emerged; and that afterwards the Petitioner and her supporters refused to sign what had been agreed.
17. Mackinon Jackton Onjiri Ojuoku, chairman of Nyumba Kumi for Mwirumbi village, gives an account to like effect. He says the meeting was held at the home of the deceased and attended by over 48 people; that it emerged Rebecca had gone to Court and initiated succession without involving the other siblings, had registered all the properties in her own name and had left some children out; that it was resolved everything be quashed, every child incorporated and the net estate distributed by the Court according to law; and that some children allied to Rebecca refused to sign.
18. Judith Esherry Omusala, a sister of the deceased and thus the surviving paternal aunt, states that he was married to three wives whom she names as Omukhango, Mary Achungo and Margaret Musialo; that he had one child with the first wife, five with the second and five with the third; that he left three parcels, W. Bunyore/Ebusiralo/132, W.
Bunyore/Ebusikhale/117 and W. Bunyore/2184; and that the surviving children were Johnstone Mwenje Libuli (deceased), Adah Okaya Wangila, Sphiwe Amisi Makoba, Ann Atemo (deceased), Japheth Makoba Omboko, Janepher Nyapela Makoba and Anthony Francis Makoba. She says the Petitioner initiated the succession without notifying her siblings and allocated herself the whole estate, and urges equity and transparency. The Objector's list of exhibits comprises the minutes of the meeting of 25th June 2022 and search certificates for the three parcels.
19. I make this observation. None of the Objector's three witnesses purports to have any knowledge of what was placed before the probate Court in Kakamega in 2009; two speak only to a clan meeting held in June 2022. Their evidence of what was and was not disclosed in 2009 is hearsay and I place no reliance on it as such. It has a narrower but genuine value: it establishes that as at June 2022 there was an unresolved family grievance about the conduct of the succession, and it corroborates the Objector's account that he had not participated. What I have said of the Petitioner's witnesses applies equally here, and I have not treated the resolutions of a clan meeting as capable of “quashing” anything. A clan meeting cannot annul a grant of the High Court; only this Court can. Its resolutions are evidence of family opinion, no more. The material findings I make below rest on neither side's witnesses. They rest on the Petitioner's own admissions.
THE PROCEEDINGS AND ORDERS NOW IMPUGNED
20. Letters of administration intestate issued to the Petitioner alone in Kakamega High Court Succession Cause No. 633 of 2009, and were in due course confirmed. Upon confirmation the properties listed in the proceedings were transferred by transmission into her sole name.
21. The estate as scheduled comprised three parcels:
West/Bunyore/Ebusiralo/132,West/Bunyore/Ebusiralo/2184 and West/ Bunyore/Ebusikhale/117. No assets outside Vihiga were scheduled, and no liabilities were declared.
22. In her submissions the Petitioner gives an account of what she has done since. She states that West/Bunyore/Ebusiralo/2184 had already been sold by the deceased in his lifetime to John Sambiri Mudaki, who had not received a title before the deceased died; that
West/Bunyore/Ebusikhale/117 was land the deceased had allocated in his lifetime to Johnstone Mwenje Libuli, a son born out of wedlock, on which he was buried, and that she holds that title in her own name to safeguard his minor children because his eldest son Eddy Mbati wished to sell it; and that she caused a County surveyor to subdivide WEST/BUNYORE/EBUSIRALO/132, the mutation being done on 24th
February 2022, into six plots allocated as follows: Plot 3292 to herself; Plot 3293 to Adah Okiya Wangila; Plot 3294 to Sophie Amisi Makoba; Plot 3295 to the Objector; Plot 3296 to Jeniffer Nyabela Makoba, later sold to Sophie Amisi Makoba; and Plot 3297 to Antony Francis Makoba, also later sold to Sophie Amisi Makoba.
23. The date of that subdivision matters and I highlight it now: it was carried out in February 2022, some three years after this Summons was filed, while the confirmed grant stood and without any application to this Court. The Petitioner further states that the Objector was called to a land board meeting after Plot 3295 was allocated to him but declined it on the ground already mentioned.
24. No inventory or account of the administration has at any time been filed.
THE GROUNDS OF THE APPLICATION
25. The grounds relied upon track section 76(a), (b) and (c) of the Act, namely:
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 it; and
d) That this Court has jurisdiction to revoke the grant.
THE PARTIES' SUBMISSIONS
26. For the Objector, Elung'ata & Company Advocates filed submissions dated 7th July 2025. They submit that the Petitioner's own replying affidavits concede the case against her: she admits the deceased was polygamous with three wives; that he left several other children including the Objector; that in her Form P&A 5 she named only six of her siblings while conceding elsewhere to nine in total; that after confirmation she alone inherited the whole of the properties she had listed; that the deceased left property in Mombasa which she did not list; and that he had sold land in his lifetime, so that there were purchasers or liabilities likewise undisclosed. They submit that having been served with the Summons she then purported to redistribute the estate as she saw fit without leave of this Court. They rely on the discretionary character of the power under section 76 and on Albert Imbuga Kisigwa v Recho Kavai Kisigwa, and ask that the grant be revoked and the properties reverted to the estate.
27. For the Petitioner, Habwe Advocates & Associates filed submissions dated 28th April 2026. They submit that the application has been overtaken by events, distribution having been completed and titles issued equally to all beneficiaries including the Objector; that West/Bunyore/Ebusiralo/2184 was sold by the deceased in his lifetime and its transfer cannot be impeached; that WEST/BUNYORE/EBUSIKHALE/117 is held for the children of Johnstone Mwenje Libuli; that the Objector is not fit to be entrusted with the estate, having sold the estate of his late sister Ann Atemo Makoba and her husband without family consent, having faced criminal charges at Mpeketoni in MCCR/E105/2024, E106/2024 and E107/2024, having served a term of imprisonment, and having procured an assault on his sister Jenipher Makoba; that he has colluded with a tenant of estate property, Milcah Akola Moindi, trading as Neema Grace Christian School, against whom the Petitioner obtained orders for distress and eviction in Business Rent Tribunal Case No. E061 of 2024 and recovered arrears of Kshs 806,000/= by execution; and that to reopen the petition would defeat efficiency, the purchaser of 2184 (now 2432) having long since developed and settled. They rely at length on In re Estate of Mukhobi Namonya (Deceased) [2020] eKLR (Musyoka J.).
28. I have found the Mukhobi Namonya passage instructive, but not in the way counsel intends. It is concerned with creditors and claimants against an estate, and with the proposition that an administrator who has gazetted the cause has discharged the duty of disclosure to the world of creditors. It says nothing about the duty to disclose beneficiaries, which is a different duty owed under section 51(2) of the Act and Rule 7 of the Rules, and which gazettement does not discharge. Indeed the passage is squarely against the Petitioner on the other point it addresses: it emphasizes that an administrator must identify the creditors of the estate and pay them off or make provision for them at confirmation, and must render an account of administration within six months. On her own case she did neither.
THE JURISDICTION AND APPROACH OF THIS COURT
29. Section 76 of the Law of Succession Act provides that a grant of representation, whether or not confirmed, may at any time be revoked or annulled if the Court decides, either on the application of any interested party or of its own motion, that the proceedings to obtain the grant were defective in substance; 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; that it was obtained by means of an untrue allegation of a fact essential in point of law, notwithstanding that the allegation was made in ignorance or inadvertently; that the person to whom it was made has failed after due notice and without reasonable cause to apply for confirmation within one year, or to proceed diligently with the administration, or to produce an inventory or account; or that it has become useless and inoperative through subsequent circumstances.
30. Section 51(2) prescribes what an application for a grant must contain, including full particulars of all surviving spouses, children, parents and other relatives, and of the assets and liabilities of the estate. Rule 7 of the Probate and Administration Rules is to the same effect. Rule 26 requires the consents of persons of equal or prior degree, or an order dispensing with them. These provisions exist for one reason: the probate Court acts on the information the petitioner supplies, and if that information is incomplete the Court's order will be incomplete too.
31. The power to revoke is discretionary. In Albert Imbuga Kisigwa v Recho Kavai Kisigwa, Succession Cause No. 158 of 2000 [2016] eKLR, Mwita J. held that the power is to be exercised judiciously and only on sound grounds, not whimsically or capriciously; that there must be evidence of wrongdoing before section 76 is invoked; and that in exercising it the Court must take into account the interests of all beneficiaries and ensure that the action taken will be in the interest of justice. To like effect is In Re the Estate of the Late Suleman Kusundwa [1965] EA 247: the Court is not obliged to revoke and should do so only where a useful purpose would thereby be achieved, or a right of the applicant safeguarded which could not otherwise be safeguarded.
32. Fraud, where alleged, must be specifically pleaded, particularised and strictly proved. In Vijay Morjaria v Nansingh Madhusingh Darbar & another [2000] eKLR, Tunoi JA. held that fraudulent conduct must be distinctly alleged and as distinctly proved, and that it is not permissible to leave fraud to be inferred from the facts. In Kinyanjui Kamau v George Kamau Njoroge [2015] eKLR the Court of Appeal confirmed that the standard is higher than the ordinary balance of probabilities though short of proof beyond reasonable doubt, and that a party alleging fraud must lay an evidential basis for the finding.
33. It is important to keep the three limbs distinct, because they do not require the same thing. Limb (b) requires fraud and attracts that elevated standard. Limbs (a) and (c) do not. A defect in substance is objective: the proceedings either complied with the statute or they did not. And limb (c) applies expressly notwithstanding that the allegation was made in ignorance or inadvertently. A petitioner who innocently misstates a fact essential in point of law is caught by limb (c) as surely as one who does so deliberately. That distinction disposes of much of what was urged about the Petitioner's good intentions.
34. Because the deceased was polygamous, section 40 governs distribution: the personal and household effects and the residue of the net intestate estate are divided in the first instance among the houses according to the number of children in each house, adding any wife surviving him as an additional unit, distribution within each house then following sections 35 to 38. “House” is defined in section 3(1) as a family unit comprising a wife, whether alive or dead at the date of the husband's death, and the children of that wife — so the death of Margaret Makoba does not extinguish the second house. “Child” is defined in section 3(2) to include, in relation to a male person, any child whom he has expressly recognised or in fact accepted as his own.
35. I add, since the point arises on the Petitioner's own account of what the Objector has said, that any suggestion that a daughter may not inherit her father's land, or may not administer his estate, has no place in the law of Kenya. It was rejected in Rono v Rono [2005] eKLR and is now foreclosed by Articles 27 and 60(1)(f) of the Constitution. Sons and daughters take alike.
ISSUES FOR DETERMINATION
36. The following issues arise:
a) Whether the Objector has locus standi, and whether the Summons is defeated by delay;
b) Whether the proceedings to obtain the grant were defective in substance;
c) Whether the grant was obtained by concealment or by an untrue allegation of a fact essential in point of law;
d) If any ground is established, whether the Court should exercise its discretion to revoke;
e) If the grant is revoked, to whom fresh representation should issue;
f) What is to become of the dealings already had with the estate assets; and
g) What directions should be given as to accounts and as to the resolution of the distribution.
ANALYSIS AND DETERMINATION
Issue (i): Locus standi and delay
37. Section 76 permits revocation on the application of “any interested party”, or by the Court of its own motion. The Objector is a son of the deceased; the Petitioner herself says so at paragraph 3(b)(ii) of her further replying affidavit. He is a dependant within section 29(a) and a beneficiary of the intestate estate. His locus standi is beyond argument and was not in the end contested.
38. Delay requires more. The grant was confirmed in or about 2012; the Summons was taken out in December 2018 and filed in February 2019. Some six years elapsed, and judgment is delivered later still, the cause having been transferred and the parties having taken until 2026 to complete submissions.
39. Section 76 contains no limitation period. It provides that a grant may be revoked “at any time”, whether or not confirmed. That is deliberate. A grant procured by concealment should not harden into an unimpeachable title merely by the passage of time, for the vice of concealment is that it keeps the aggrieved party in ignorance. Where non-disclosure is alleged, delay runs from when the applicant knew or ought reasonably to have known of the facts complained of.
40. The Petitioner has placed before me no evidence that the Objector was cited, served, or asked for consent under Rule 26 at any stage. Her answer is that gazettement made secrecy impossible. That proves less than it appears to. Gazettement under section 67 is notice to the world at large; it is not, and has never been treated as, a substitute for the specific disclosure of known beneficiaries which section 51(2) requires. A son living in Mombasa is not to be fixed with knowledge of a Gazette notice published
in respect of a cause in Kakamega. Delay remains a discretionary consideration which I weigh below; it does not bar the Summons.
Issue (ii): Whether the proceedings were defective in substance
41. Here the Petitioner's own pleadings are decisive, and I have not needed to resolve any contested question of fact.
42. On her own further replying affidavit the deceased left two houses which produced children: Mary Achungo's with six children and Margaret Makoba's with four. That is ten children. The Objector asserts, and the Petitioner nowhere denies, that her Form P&A 5 named six only. There is no material from which I could find that the second house, or its four children, was ever disclosed to the Court in Kakamega. Nor is there any evidence of compliance with Rule 26: no consents, no citation, no order dispensing with consents is exhibited.
43. Second, the estate as disclosed was incomplete. The Petitioner deposes at paragraph 15 of her further replying affidavit that “mzee had property in Mombasa”. Whatever the merits of her complaint that the second house took that property to her exclusion, it was an asset of the estate and fell to be listed under section 51(2). It was not. An administrator cannot decline to schedule an asset because she believes others have helped themselves to it; the remedy is to schedule it and pursue it.
44. Third, the liabilities were not disclosed. Her case is that the deceased had sold West/Bunyore/Ebusiralo/2184 to John Sambiri Mudaki in his lifetime but had not processed the title, and that this is why she took out the succession. An uncompleted contract of sale by the deceased is a liability of the estate. It ought to have been declared and provision made for it at confirmation under section 83. On her own account it was not declared; it was simply performed.
45. Fourth, and most tellingly, the distribution the Court confirmed did not proceed on the statutory basis at all. A polygamous estate falls to be divided among houses under section 40, not per capita among such children as the administrator chooses to name. Nothing suggests the Court in 2009 was told there were two houses, still less invited to divide the estate between them in the statutory proportions. It could not have been, if the second house was not disclosed.
46. These are not irregularities of form. A grant obtained without disclosure of an entire house of a polygamous family, without the consents required by the Rules, on an incomplete schedule of assets and without declaration of a known liability, is a grant obtained upon proceedings defective in substance. The ground under section 76(a) is established.
Issue (iii): Concealment and untrue allegation
47. The Objector alleges fraud. That is a serious charge and I approach it with the caution the authorities require.
48. I am satisfied that material facts were withheld. The existence of the second house and of four of the deceased's children including the Objector; the existence of assets in Mombasa; and the existence of a purchaser holding an uncompleted contract over one of the parcels, were each material in the ordinary sense: each, if disclosed, would have altered the shape of the order the Court made. Their omission is established on the Petitioner's own affidavit.
49. Whether that omission was fraudulent is a different question. The Petitioner says the Objector and his siblings had abandoned their father, that the second house had taken the Mombasa property, and that she acted to help purchasers obtain titles. She says, in effect, that she saw no reason to bring into the succession people who had walked away from her father.
50. I do not doubt she felt that grievance keenly, and there is evidence she alone cared for the deceased in his last illness. But a belief that a beneficiary does not deserve to inherit is not a licence to withhold his existence from the Court. Entitlement under sections 35 to 40 does not depend on filial merit. If she considered that the Objector's conduct, or his enjoyment of the Mombasa property, should reduce his share, the Act gave her the means to say so: section 28 requires the Court, in making provision for a dependant, to have regard to the dependant's conduct in relation to the deceased and to any property already received. That is an argument to
be made to the Court, on notice, and it might well have succeeded in part.
It is not an argument to be self-administered by omission.
51. Her conduct after service of this Summons puts the matter beyond doubt. Served in 2019, she did not apply to rectify the confirmed grant. Instead, in February 2022, she engaged a surveyor, subdivided Parcel 132 into six plots and reallocated them among six of the children — a distribution materially different from the one this Court had confirmed. She did so without leave and while the confirmed grant stood. That was unlawful: a confirmed grant is the measure of an administrator's authority to distribute, and sections 82(b) and 83 confine her accordingly. The exercise carries an unavoidable implication: it is an admission by the Petitioner herself that the confirmed distribution was wrong and needed redoing.
52. Taking the omissions and the subsequent conduct together, I find the grant was obtained by the concealment from the Court of matters material to the case, and the ground under section 76(b) is established. I make that finding on the objective effect of what was withheld and on the Petitioner's own admissions, without needing to characterise her state of mind in 2009. Fraud requires distinct proof and I decline to make any finding of dishonest intent, which has not been proved to the requisite standard and is unnecessary to the result. It is enough that material facts were concealed.
53. For the same reasons the ground under section 76(c) is established, and here good faith is expressly irrelevant. The representation that the beneficiaries w
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M/S A. Habwe Advocates & Associates
M/S Elunga’ata & Co. Advocates
FACTS
1. George Makoba Omboko, the deceased herein, died intestate on 25th August 2003 at Sagam Community Hospital. He was a polygamous man. More than two decades after his death his estate remains unadministered in law, and his children remain locked in a dispute that has outlived several of them.
2. These are not appellate proceedings. This Court sits in its original jurisdiction as a probate Court. Before me is a Summons for Revocation and Annulment of Grant dated 28th December 2018 and filed on 19th February 2019, taken out by Japheth Makoba Omboko, a son of the deceased by his second house. It is brought under sections 47, 48 and 76 of the Law of Succession Act, Cap 160, and Rules 44 and 73 of the Probate and Administration Rules. It is opposed by the Petitioner, Rebbeccah Olesi Nanyendo, a daughter of the deceased by his first house, to whom the grant was made.
3. The cause was commenced at Kakamega as Succession Cause No. 633 of 2009 and has since been transferred to this station and renumbered. Three discrepancies on the face of the record must be addressed before going further, because a judgment must operate on ascertained facts.
4. First, as to the dates of the grant. The Summons pleads that letters of administration intestate were made to the Petitioner on 21st December 2012 and confirmed on 8th May 2012 by Chitembwe J. at Kakamega. A grant cannot be confirmed some seven months before it is made. The Objector's submissions compound the difficulty by rendering the confirmation date as “08/05/20212”. One or other of the pleaded dates is plainly a typographical error. Nothing turns on the precise dates, and I frame my orders by reference to the grant and certificate of confirmation issued in Kakamega High Court Succession Cause No. 633 of 2009 rather than to dates the record does not establish. The Deputy Registrar will ascertain the correct dates from the file when extracting the order.
5. Second, as to the date of death. The Objector's submissions open by giving 25th August 2008 but later give 25th August 2003. The Petitioner's submissions and her replying affidavit both give 2003. I find the deceased died on 25th August 2003.
6. Third, as to the composition of the family. The parties are not agreed on how many wives the deceased married, in what order, or how many children each bore. That disagreement is not peripheral. It goes to the heart of what a Court must know before it can administer a polygamous estate under section 40 of the Act, and I return to it below.
THE PLEADINGS
i. The Summons and supporting affidavit
7. By the Summons the Objector seeks, in substance, four orders: that the grant of letters of administration intestate made to the Petitioner, and the certificate of confirmation thereof, be revoked and/or annulled; that fresh letters issue jointly to the Petitioner and to himself; that all transactions entered into by the Petitioner and any third party after the death of the deceased, and thereafter upon confirmation, in respect of West/Bunyore/Ebusiralo/132,West/Bunyore/Ebusiralo/2184 and West/Bunyore/Ebusikhale/117 be declared null and void and set aside; and that costs be awarded to him.
8. The Summons is supported by his affidavit sworn on 28th December 2018. He deposes that he is a beneficiary and that the Petitioner is his step-sister; that his mother bore Johnstone Mwenje Libuli (deceased), Ann Atemo Makoba (who died in 2013), Jenepher Nyapela Makoba and Antony Francis
Makoba; that the deceased in his lifetime bequeathed
West/Bunyore/Ebusiralo/132 to Johnstone Mwenje Libuli, who has since died and is succeeded by Eddy Mbati; that West/Bunyore/Ebusiralo/2184 (0.38 Ha) and West/Bunyore/Ebusikhale/117 (0.9 acres) fell for distribution; that the Petitioner instead distributed to herself and to one John Sambiri Mudaki, a stranger to the family; that she has had the balance transferred by transmission into her own name; that she has leased one of the properties to a school and earns profits which remain undistributed; and that none of the other beneficiaries was notified of, enlisted in, or participated in the process leading to the grant or its confirmation.
ii. The Petitioner's replying affidavits
9. The Petitioner relies on a replying affidavit sworn on 21st January 2020 and a further replying affidavit sworn on 2nd March 2023 and filed on 9th March 2023.
10. In the latter she sets out the family as follows. Mary Achungo, the first wife, whom she says is alive, bore Adah Okaya Wangila, Julia Asami (deceased), Rebeccah Olesi, Phoebe Atero (deceased), Jesca Makoba (deceased) and Sophia Makoba. Margaret Makoba, the second wife, now deceased, bore Ann Atemo Makoba (deceased), Japheth Makoba, Jenepher Makoba and Antony Makoba. A third wife, Lucy, died without issue.
11. She deposes that after her father's death Margaret remained in Mombasa with her children, occupying and carrying on business on his property there; that she herself stayed with and cared for her father until he died; that the Objector and his siblings abandoned their father in life and in death and that the Objector never set foot at the funeral; that her father had sold part of his property before he died and that she initiated the succession to assist the purchasers process their titles; that the deceased had property in Mombasa which the Objector and his siblings took exclusively; that Jenepher and Antony have received their portions; that the Objector has refused his inheritance, saying that he is a man and cannot share his father's property with a girl child; that the property can be divided into two, the first house taking the upper portion and the second the lower; that she is agreeable to Court-annexed mediation; that it is not true that she has not involved the other siblings; and that it is not possible to conduct succession proceedings secretly given the requirements of notice and gazettement.
THE EVIDENCE PRESENTED BY EACH SIDE
12. The parties have not called oral evidence beyond the material filed. I have considered the Summons and supporting affidavit, the replying affidavits, the witness statements and lists of witnesses and documents filed by each side, the Objector's list of exhibits, and the written submissions.
i. The Petitioner's witnesses
13. Four witness statements were filed for the Petitioner on 9th March 2023, by Adah Okaya Wangila, Janepher Makoba, Anthony Francis Makoba and Sophie Makoba. They are in materially identical terms. Each deposes to being a child of the deceased; to knowing that the land at Bunyore/Ebusikhale 132 and 117 belonged to their father; that the children sat and appointed Rebbeccah Olesi Nanyendo to be administrator and conduct the succession; that the proceedings were done and everyone was notified; that the property was shared equally among the beneficiaries; that they fully supported the transaction; and that each is satisfied with his or her share. Those of Anthony Francis Makoba and Sophie Makoba add that everyone was notified “including our brother Japheth”.
14. Two features deserve notice. The first is that Janepher Makoba and Anthony Francis Makoba are children of the second house — the Objector's own full siblings — and they support the Petitioner. That carries some weight in her favour on the question of family consensus. The second is that all four statements are dated in March 2023: they were made some fourteen years after the petition was filed and four years after this Summons was taken out. They are not contemporaneous evidence of what was disclosed to the Court in 2009. A statement made in 2023 that “everyone was notified” cannot supply a disclosure that was, or was not, made to the probate Court more than a decade earlier. ii. The Objector's witnesses
15. Three witness statements were filed for the Objector on 20th September 2022.
16. Nason Tiema Mbati, chairman of the Abasiralo community, states that on 25th June 2022 he was invited to participate, as a community leader, in family discussions concerning the estate; that he learnt the Petitioner had initiated succession proceedings without consulting her immediate family or the clan; that she had been invited to two earlier meetings and had neither responded nor attended, but agreed to attend a third on 25th June 2022, at which all the children attended save Sophie Makoba, absent with apologies; that it was agreed everything done without involving the siblings should be cancelled and the properties reverted to the name of the deceased for distribution after due process; that any child left out be incorporated; that two antagonistic factions had emerged; and that afterwards the Petitioner and her supporters refused to sign what had been agreed.
17. Mackinon Jackton Onjiri Ojuoku, chairman of Nyumba Kumi for Mwirumbi village, gives an account to like effect. He says the meeting was held at the home of the deceased and attended by over 48 people; that it emerged Rebecca had gone to Court and initiated succession without involving the other siblings, had registered all the properties in her own name and had left some children out; that it was resolved everything be quashed, every child incorporated and the net estate distributed by the Court according to law; and that some children allied to Rebecca refused to sign.
18. Judith Esherry Omusala, a sister of the deceased and thus the surviving paternal aunt, states that he was married to three wives whom she names as Omukhango, Mary Achungo and Margaret Musialo; that he had one child with the first wife, five with the second and five with the third; that he left three parcels, W. Bunyore/Ebusiralo/132, W.
Bunyore/Ebusikhale/117 and W. Bunyore/2184; and that the surviving children were Johnstone Mwenje Libuli (deceased), Adah Okaya Wangila, Sphiwe Amisi Makoba, Ann Atemo (deceased), Japheth Makoba Omboko, Janepher Nyapela Makoba and Anthony Francis Makoba. She says the Petitioner initiated the succession without notifying her siblings and allocated herself the whole estate, and urges equity and transparency. The Objector's list of exhibits comprises the minutes of the meeting of 25th June 2022 and search certificates for the three parcels.
19. I make this observation. None of the Objector's three witnesses purports to have any knowledge of what was placed before the probate Court in Kakamega in 2009; two speak only to a clan meeting held in June 2022. Their evidence of what was and was not disclosed in 2009 is hearsay and I place no reliance on it as such. It has a narrower but genuine value: it establishes that as at June 2022 there was an unresolved family grievance about the conduct of the succession, and it corroborates the Objector's account that he had not participated. What I have said of the Petitioner's witnesses applies equally here, and I have not treated the resolutions of a clan meeting as capable of “quashing” anything. A clan meeting cannot annul a grant of the High Court; only this Court can. Its resolutions are evidence of family opinion, no more. The material findings I make below rest on neither side's witnesses. They rest on the Petitioner's own admissions.
THE PROCEEDINGS AND ORDERS NOW IMPUGNED
20. Letters of administration intestate issued to the Petitioner alone in Kakamega High Court Succession Cause No. 633 of 2009, and were in due course confirmed. Upon confirmation the properties listed in the proceedings were transferred by transmission into her sole name.
21. The estate as scheduled comprised three parcels:
West/Bunyore/Ebusiralo/132,West/Bunyore/Ebusiralo/2184 and West/ Bunyore/Ebusikhale/117. No assets outside Vihiga were scheduled, and no liabilities were declared.
22. In her submissions the Petitioner gives an account of what she has done since. She states that West/Bunyore/Ebusiralo/2184 had already been sold by the deceased in his lifetime to John Sambiri Mudaki, who had not received a title before the deceased died; that
West/Bunyore/Ebusikhale/117 was land the deceased had allocated in his lifetime to Johnstone Mwenje Libuli, a son born out of wedlock, on which he was buried, and that she holds that title in her own name to safeguard his minor children because his eldest son Eddy Mbati wished to sell it; and that she caused a County surveyor to subdivide WEST/BUNYORE/EBUSIRALO/132, the mutation being done on 24th
February 2022, into six plots allocated as follows: Plot 3292 to herself; Plot 3293 to Adah Okiya Wangila; Plot 3294 to Sophie Amisi Makoba; Plot 3295 to the Objector; Plot 3296 to Jeniffer Nyabela Makoba, later sold to Sophie Amisi Makoba; and Plot 3297 to Antony Francis Makoba, also later sold to Sophie Amisi Makoba.
23. The date of that subdivision matters and I highlight it now: it was carried out in February 2022, some three years after this Summons was filed, while the confirmed grant stood and without any application to this Court. The Petitioner further states that the Objector was called to a land board meeting after Plot 3295 was allocated to him but declined it on the ground already mentioned.
24. No inventory or account of the administration has at any time been filed.
THE GROUNDS OF THE APPLICATION
25. The grounds relied upon track section 76(a), (b) and (c) of the Act, namely:
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 it; and
d) That this Court has jurisdiction to revoke the grant.
THE PARTIES' SUBMISSIONS
26. For the Objector, Elung'ata & Company Advocates filed submissions dated 7th July 2025. They submit that the Petitioner's own replying affidavits concede the case against her: she admits the deceased was polygamous with three wives; that he left several other children including the Objector; that in her Form P&A 5 she named only six of her siblings while conceding elsewhere to nine in total; that after confirmation she alone inherited the whole of the properties she had listed; that the deceased left property in Mombasa which she did not list; and that he had sold land in his lifetime, so that there were purchasers or liabilities likewise undisclosed. They submit that having been served with the Summons she then purported to redistribute the estate as she saw fit without leave of this Court. They rely on the discretionary character of the power under section 76 and on Albert Imbuga Kisigwa v Recho Kavai Kisigwa, and ask that the grant be revoked and the properties reverted to the estate.
27. For the Petitioner, Habwe Advocates & Associates filed submissions dated 28th April 2026. They submit that the application has been overtaken by events, distribution having been completed and titles issued equally to all beneficiaries including the Objector; that West/Bunyore/Ebusiralo/2184 was sold by the deceased in his lifetime and its transfer cannot be impeached; that WEST/BUNYORE/EBUSIKHALE/117 is held for the children of Johnstone Mwenje Libuli; that the Objector is not fit to be entrusted with the estate, having sold the estate of his late sister Ann Atemo Makoba and her husband without family consent, having faced criminal charges at Mpeketoni in MCCR/E105/2024, E106/2024 and E107/2024, having served a term of imprisonment, and having procured an assault on his sister Jenipher Makoba; that he has colluded with a tenant of estate property, Milcah Akola Moindi, trading as Neema Grace Christian School, against whom the Petitioner obtained orders for distress and eviction in Business Rent Tribunal Case No. E061 of 2024 and recovered arrears of Kshs 806,000/= by execution; and that to reopen the petition would defeat efficiency, the purchaser of 2184 (now 2432) having long since developed and settled. They rely at length on In re Estate of Mukhobi Namonya (Deceased) [2020] eKLR (Musyoka J.).
28. I have found the Mukhobi Namonya passage instructive, but not in the way counsel intends. It is concerned with creditors and claimants against an estate, and with the proposition that an administrator who has gazetted the cause has discharged the duty of disclosure to the world of creditors. It says nothing about the duty to disclose beneficiaries, which is a different duty owed under section 51(2) of the Act and Rule 7 of the Rules, and which gazettement does not discharge. Indeed the passage is squarely against the Petitioner on the other point it addresses: it emphasizes that an administrator must identify the creditors of the estate and pay them off or make provision for them at confirmation, and must render an account of administration within six months. On her own case she did neither.
THE JURISDICTION AND APPROACH OF THIS COURT
29. Section 76 of the Law of Succession Act provides that a grant of representation, whether or not confirmed, may at any time be revoked or annulled if the Court decides, either on the application of any interested party or of its own motion, that the proceedings to obtain the grant were defective in substance; 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; that it was obtained by means of an untrue allegation of a fact essential in point of law, notwithstanding that the allegation was made in ignorance or inadvertently; that the person to whom it was made has failed after due notice and without reasonable cause to apply for confirmation within one year, or to proceed diligently with the administration, or to produce an inventory or account; or that it has become useless and inoperative through subsequent circumstances.
30. Section 51(2) prescribes what an application for a grant must contain, including full particulars of all surviving spouses, children, parents and other relatives, and of the assets and liabilities of the estate. Rule 7 of the Probate and Administration Rules is to the same effect. Rule 26 requires the consents of persons of equal or prior degree, or an order dispensing with them. These provisions exist for one reason: the probate Court acts on the information the petitioner supplies, and if that information is incomplete the Court's order will be incomplete too.
31. The power to revoke is discretionary. In Albert Imbuga Kisigwa v Recho Kavai Kisigwa, Succession Cause No. 158 of 2000 [2016] eKLR, Mwita J. held that the power is to be exercised judiciously and only on sound grounds, not whimsically or capriciously; that there must be evidence of wrongdoing before section 76 is invoked; and that in exercising it the Court must take into account the interests of all beneficiaries and ensure that the action taken will be in the interest of justice. To like effect is In Re the Estate of the Late Suleman Kusundwa [1965] EA 247: the Court is not obliged to revoke and should do so only where a useful purpose would thereby be achieved, or a right of the applicant safeguarded which could not otherwise be safeguarded.
32. Fraud, where alleged, must be specifically pleaded, particularised and strictly proved. In Vijay Morjaria v Nansingh Madhusingh Darbar & another [2000] eKLR, Tunoi JA. held that fraudulent conduct must be distinctly alleged and as distinctly proved, and that it is not permissible to leave fraud to be inferred from the facts. In Kinyanjui Kamau v George Kamau Njoroge [2015] eKLR the Court of Appeal confirmed that the standard is higher than the ordinary balance of probabilities though short of proof beyond reasonable doubt, and that a party alleging fraud must lay an evidential basis for the finding.
33. It is important to keep the three limbs distinct, because they do not require the same thing. Limb (b) requires fraud and attracts that elevated standard. Limbs (a) and (c) do not. A defect in substance is objective: the proceedings either complied with the statute or they did not. And limb (c) applies expressly notwithstanding that the allegation was made in ignorance or inadvertently. A petitioner who innocently misstates a fact essential in point of law is caught by limb (c) as surely as one who does so deliberately. That distinction disposes of much of what was urged about the Petitioner's good intentions.
34. Because the deceased was polygamous, section 40 governs distribution: the personal and household effects and the residue of the net intestate estate are divided in the first instance among the houses according to the number of children in each house, adding any wife surviving him as an additional unit, distribution within each house then following sections 35 to 38. “House” is defined in section 3(1) as a family unit comprising a wife, whether alive or dead at the date of the husband's death, and the children of that wife — so the death of Margaret Makoba does not extinguish the second house. “Child” is defined in section 3(2) to include, in relation to a male person, any child whom he has expressly recognised or in fact accepted as his own.
35. I add, since the point arises on the Petitioner's own account of what the Objector has said, that any suggestion that a daughter may not inherit her father's land, or may not administer his estate, has no place in the law of Kenya. It was rejected in Rono v Rono [2005] eKLR and is now foreclosed by Articles 27 and 60(1)(f) of the Constitution. Sons and daughters take alike.
ISSUES FOR DETERMINATION
36. The following issues arise:
a) Whether the Objector has locus standi, and whether the Summons is defeated by delay;
b) Whether the proceedings to obtain the grant were defective in substance;
c) Whether the grant was obtained by concealment or by an untrue allegation of a fact essential in point of law;
d) If any ground is established, whether the Court should exercise its discretion to revoke;
e) If the grant is revoked, to whom fresh representation should issue;
f) What is to become of the dealings already had with the estate assets; and
g) What directions should be given as to accounts and as to the resolution of the distribution.
ANALYSIS AND DETERMINATION
Issue (i): Locus standi and delay
37. Section 76 permits revocation on the application of “any interested party”, or by the Court of its own motion. The Objector is a son of the deceased; the Petitioner herself says so at paragraph 3(b)(ii) of her further replying affidavit. He is a dependant within section 29(a) and a beneficiary of the intestate estate. His locus standi is beyond argument and was not in the end contested.
38. Delay requires more. The grant was confirmed in or about 2012; the Summons was taken out in December 2018 and filed in February 2019. Some six years elapsed, and judgment is delivered later still, the cause having been transferred and the parties having taken until 2026 to complete submissions.
39. Section 76 contains no limitation period. It provides that a grant may be revoked “at any time”, whether or not confirmed. That is deliberate. A grant procured by concealment should not harden into an unimpeachable title merely by the passage of time, for the vice of concealment is that it keeps the aggrieved party in ignorance. Where non-disclosure is alleged, delay runs from when the applicant knew or ought reasonably to have known of the facts complained of.
40. The Petitioner has placed before me no evidence that the Objector was cited, served, or asked for consent under Rule 26 at any stage. Her answer is that gazettement made secrecy impossible. That proves less than it appears to. Gazettement under section 67 is notice to the world at large; it is not, and has never been treated as, a substitute for the specific disclosure of known beneficiaries which section 51(2) requires. A son living in Mombasa is not to be fixed with knowledge of a Gazette notice published
in respect of a cause in Kakamega. Delay remains a discretionary consideration which I weigh below; it does not bar the Summons.
Issue (ii): Whether the proceedings were defective in substance
41. Here the Petitioner's own pleadings are decisive, and I have not needed to resolve any contested question of fact.
42. On her own further replying affidavit the deceased left two houses which produced children: Mary Achungo's with six children and Margaret Makoba's with four. That is ten children. The Objector asserts, and the Petitioner nowhere denies, that her Form P&A 5 named six only. There is no material from which I could find that the second house, or its four children, was ever disclosed to the Court in Kakamega. Nor is there any evidence of compliance with Rule 26: no consents, no citation, no order dispensing with consents is exhibited.
43. Second, the estate as disclosed was incomplete. The Petitioner deposes at paragraph 15 of her further replying affidavit that “mzee had property in Mombasa”. Whatever the merits of her complaint that the second house took that property to her exclusion, it was an asset of the estate and fell to be listed under section 51(2). It was not. An administrator cannot decline to schedule an asset because she believes others have helped themselves to it; the remedy is to schedule it and pursue it.
44. Third, the liabilities were not disclosed. Her case is that the deceased had sold West/Bunyore/Ebusiralo/2184 to John Sambiri Mudaki in his lifetime but had not processed the title, and that this is why she took out the succession. An uncompleted contract of sale by the deceased is a liability of the estate. It ought to have been declared and provision made for it at confirmation under section 83. On her own account it was not declared; it was simply performed.
45. Fourth, and most tellingly, the distribution the Court confirmed did not proceed on the statutory basis at all. A polygamous estate falls to be divided among houses under section 40, not per capita among such children as the administrator chooses to name. Nothing suggests the Court in 2009 was told there were two houses, still less invited to divide the estate between them in the statutory proportions. It could not have been, if the second house was not disclosed.
46. These are not irregularities of form. A grant obtained without disclosure of an entire house of a polygamous family, without the consents required by the Rules, on an incomplete schedule of assets and without declaration of a known liability, is a grant obtained upon proceedings defective in substance. The ground under section 76(a) is established.
Issue (iii): Concealment and untrue allegation
47. The Objector alleges fraud. That is a serious charge and I approach it with the caution the authorities require.
48. I am satisfied that material facts were withheld. The existence of the second house and of four of the deceased's children including the Objector; the existence of assets in Mombasa; and the existence of a purchaser holding an uncompleted contract over one of the parcels, were each material in the ordinary sense: each, if disclosed, would have altered the shape of the order the Court made. Their omission is established on the Petitioner's own affidavit.
49. Whether that omission was fraudulent is a different question. The Petitioner says the Objector and his siblings had abandoned their father, that the second house had taken the Mombasa property, and that she acted to help purchasers obtain titles. She says, in effect, that she saw no reason to bring into the succession people who had walked away from her father.
50. I do not doubt she felt that grievance keenly, and there is evidence she alone cared for the deceased in his last illness. But a belief that a beneficiary does not deserve to inherit is not a licence to withhold his existence from the Court. Entitlement under sections 35 to 40 does not depend on filial merit. If she considered that the Objector's conduct, or his enjoyment of the Mombasa property, should reduce his share, the Act gave her the means to say so: section 28 requires the Court, in making provision for a dependant, to have regard to the dependant's conduct in relation to the deceased and to any property already received. That is an argument to
be made to the Court, on notice, and it might well have succeeded in part.
It is not an argument to be self-administered by omission.
51. Her conduct after service of this Summons puts the matter beyond doubt. Served in 2019, she did not apply to rectify the confirmed grant. Instead, in February 2022, she engaged a surveyor, subdivided Parcel 132 into six plots and reallocated them among six of the children — a distribution materially different from the one this Court had confirmed. She did so without leave and while the confirmed grant stood. That was unlawful: a confirmed grant is the measure of an administrator's authority to distribute, and sections 82(b) and 83 confine her accordingly. The exercise carries an unavoidable implication: it is an admission by the Petitioner herself that the confirmed distribution was wrong and needed redoing.
52. Taking the omissions and the subsequent conduct together, I find the grant was obtained by the concealment from the Court of matters material to the case, and the ground under section 76(b) is established. I make that finding on the objective effect of what was withheld and on the Petitioner's own admissions, without needing to characterise her state of mind in 2009. Fraud requires distinct proof and I decline to make any finding of dishonest intent, which has not been proved to the requisite standard and is unnecessary to the result. It is enough that material facts were concealed.
53. For the same reasons the ground under section 76(c) is established, and here good faith is expressly irrelevant. The representation that the beneficiaries w
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