Introduction
1. This ruling concerns the Notice of Motion dated 18th September 2023 by Annah Nyanchare Ndege (the Applicant), seeking revocation of the temporary grant of Letters of Administration ad litem issued on 12th February 2015 to Jared Mochiemo Ogeto (the Respondent/Petitioner).
2. The grant in question was limited in purpose, namely to enable the Respondent file a civil suit on behalf of the estate of the late Isaac Ogeto Magare, who died on 24th March 2008, in respect of alleged fraudulent subdivision and transfer of land parcels East Kitutu/Botabori 1/260 and East Kitutu/Botabori 1/304.
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Background
3. The Respondent petitioned for and obtained the temporary grant ad litem claiming to be a grandson and beneficiary of the deceased. He contended that the estate had been intermeddled with through fraudulent subdivisions and transfers and that urgent legal intervention was required to preserve the estate.
4. The Applicant, who is a daughter of the deceased, contends that the Respondent obtained the grant fraudulently and without capacity. She avers that:
o The deceased had three wives and eleven children, all of whom were alive at the time the grant was obtained.
o The Respondent is not a biological grandson of the deceased and can only claim, if at all, through his mother.
o No consent was obtained from the lawful beneficiaries of the estate.
o The chief’s letter relied upon was defective and did not disclose the true beneficiaries of the estate.
The Application
5. The Applicant seeks revocation of the temporary grant on the grounds that:
o It was obtained fraudulently by concealment of material facts;
o The Respondent lacked locus standi to petition for the grant;
o The consents filed were from persons who were not beneficiaries of the estate;
o The proceedings leading to issuance of the grant were defective in substance.
The Response
6. The Respondent opposed the application through a replying affidavit sworn on 4th July 2025 and written submissions. He maintains that:
o He is a beneficiary of the estate under Gusii customary law;
o His grandmother, Abigael Binyanya Ogeto, married his mother to bear sons for her house;
o He was properly issued with the grant ad litem solely to enable him institute proceedings to protect the estate;
o The grant was lawfully obtained and there was no concealment or misrepresentation.
Issues for Determination
7. Having considered the pleadings, affidavits and submissions, the following issues arise for determination:
1. Whether the Respondent had capacity to petition for letters of administration ad litem.
2. Whether the temporary grant was obtained fraudulently or through concealment of material facts.
3. Whether the grant should be revoked.
Analysis and Determination
Capacity to Petition
8. Letters of administration ad litem are issued for a limited purpose, usually to enable a party represent an estate in litigation. However, even such limited grants must be sought by a person with locus in relation to the estate.
9. The evidence before court shows that the deceased had surviving wives and children at the time the Respondent petitioned for the grant. These persons rank in priority over a grandchild or alleged dependent as per section 29 of the law of succession Act.
10. The Respondent’s claim to beneficiary status is premised on customary arrangement of woman to woman marriage under Gusii customary law involving his mother. Even assuming such arrangements existed, the Respondent would only claim through his mother, not directly as a primary beneficiary.
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Consent and Disclosure
11. The record reveals that the consents filed in support of the petition were from persons who were not disclosed as children of the deceased. Crucially, none of the deceased’s surviving wives or children consented to the Respondent applying for the grant.
12. Further, the chief’s letter relied upon did not list the family members or beneficiaries of the deceased. This omission was material and had the effect of misleading the court as to the true composition of the deceased’s family
Fraud and Concealment
13. Under section 76 of the Law of Succession Act, a grant may be revoked where it is shown that it was obtained fraudulently by making a false statement or by concealment of material facts. In Re Estate of Magangi Obuki (Deceased) [2020] eKLR the Court cited the authority in the case of Albert Imbuga Kisigwa v Recho Kavai Kisigwa, Succession Cause No.158 of 2000, Mwita J. held as follows ; on the guiding principles for the revocation of a grant. He stated;
(13)Power to revoke a grant is a discretionary power that must be exercised judiciously and only on sound grounds. It is not discretion to be exercised whimsically or capriciously. There must be evidence of wrong doing for the court to invoke section 76 and order to revoke or annul a grant. And when a court is called upon to exercise this discretion, it must take into account interests of all beneficiaries entitled to the deceased’s estate and ensure that the action taken will be for the interest of justice.’’
14. The Respondent failed to disclose that:
• The deceased had surviving wives and children;
• He was not a direct child of the deceased;
• No consent had been obtained from persons with prior right to administration.
15. The court is satisfied that these omissions were material and go to the root of the grant.
Conclusion
16.In view of the foregoing, this court finds that:
• The Respondent lacked priority and capacity to petition for the grant ad litem;
• The grant issued on 12th February 2015 was obtained through concealment of material facts;
• The continued existence of the grant undermines the proper administration of the estate.
Orders
17.Accordingly, the court makes the following orders:
a. The temporary grant of Letters of Administration ad litem issued to Jared Mochiemo Ogeto on 12th February 2015 is hereby revoked.
b. No further proceedings shall be instituted on behalf of the estate pursuant to the revoked grant.
c. The lawful beneficiaries of the estate are at liberty to commence proper succession proceedings in accordance with the Law of Succession Act.
d. Each Party to bear its own costs.
e. This file is closed .
T.A ODERA
JUDGE
19.2.26
DELIVERED VIRTUALLY ON THIS 19TH DAY OF FEBRUARY 2026 VIA TEAMS PLATFORM IN THE PRESENCE OF MR MOMANYI FOR THE APPLICANT , MR OMWEGA FOR RESPONDENT & CA MR KIPCHIRCHIR ......
1. This ruling concerns the Notice of Motion dated 18th September 2023 by Annah Nyanchare Ndege (the Applicant), seeking revocation of the temporary grant of Letters of Administration ad litem issued on 12th February 2015 to Jared Mochiemo Ogeto (the Respondent/Petitioner).
2. The grant in question was limited in purpose, namely to enable the Respondent file a civil suit on behalf of the estate of the late Isaac Ogeto Magare, who died on 24th March 2008, in respect of alleged fraudulent subdivision and transfer of land parcels East Kitutu/Botabori 1/260 and East Kitutu/Botabori 1/304.
________________________________________
Background
3. The Respondent petitioned for and obtained the temporary grant ad litem claiming to be a grandson and beneficiary of the deceased. He contended that the estate had been intermeddled with through fraudulent subdivisions and transfers and that urgent legal intervention was required to preserve the estate.
4. The Applicant, who is a daughter of the deceased, contends that the Respondent obtained the grant fraudulently and without capacity. She avers that:
o The deceased had three wives and eleven children, all of whom were alive at the time the grant was obtained.
o The Respondent is not a biological grandson of the deceased and can only claim, if at all, through his mother.
o No consent was obtained from the lawful beneficiaries of the estate.
o The chief’s letter relied upon was defective and did not disclose the true beneficiaries of the estate.
The Application
5. The Applicant seeks revocation of the temporary grant on the grounds that:
o It was obtained fraudulently by concealment of material facts;
o The Respondent lacked locus standi to petition for the grant;
o The consents filed were from persons who were not beneficiaries of the estate;
o The proceedings leading to issuance of the grant were defective in substance.
The Response
6. The Respondent opposed the application through a replying affidavit sworn on 4th July 2025 and written submissions. He maintains that:
o He is a beneficiary of the estate under Gusii customary law;
o His grandmother, Abigael Binyanya Ogeto, married his mother to bear sons for her house;
o He was properly issued with the grant ad litem solely to enable him institute proceedings to protect the estate;
o The grant was lawfully obtained and there was no concealment or misrepresentation.
Issues for Determination
7. Having considered the pleadings, affidavits and submissions, the following issues arise for determination:
1. Whether the Respondent had capacity to petition for letters of administration ad litem.
2. Whether the temporary grant was obtained fraudulently or through concealment of material facts.
3. Whether the grant should be revoked.
Analysis and Determination
Capacity to Petition
8. Letters of administration ad litem are issued for a limited purpose, usually to enable a party represent an estate in litigation. However, even such limited grants must be sought by a person with locus in relation to the estate.
9. The evidence before court shows that the deceased had surviving wives and children at the time the Respondent petitioned for the grant. These persons rank in priority over a grandchild or alleged dependent as per section 29 of the law of succession Act.
10. The Respondent’s claim to beneficiary status is premised on customary arrangement of woman to woman marriage under Gusii customary law involving his mother. Even assuming such arrangements existed, the Respondent would only claim through his mother, not directly as a primary beneficiary.
________________________________________
Consent and Disclosure
11. The record reveals that the consents filed in support of the petition were from persons who were not disclosed as children of the deceased. Crucially, none of the deceased’s surviving wives or children consented to the Respondent applying for the grant.
12. Further, the chief’s letter relied upon did not list the family members or beneficiaries of the deceased. This omission was material and had the effect of misleading the court as to the true composition of the deceased’s family
Fraud and Concealment
13. Under section 76 of the Law of Succession Act, a grant may be revoked where it is shown that it was obtained fraudulently by making a false statement or by concealment of material facts. In Re Estate of Magangi Obuki (Deceased) [2020] eKLR the Court cited the authority in the case of Albert Imbuga Kisigwa v Recho Kavai Kisigwa, Succession Cause No.158 of 2000, Mwita J. held as follows ; on the guiding principles for the revocation of a grant. He stated;
(13)Power to revoke a grant is a discretionary power that must be exercised judiciously and only on sound grounds. It is not discretion to be exercised whimsically or capriciously. There must be evidence of wrong doing for the court to invoke section 76 and order to revoke or annul a grant. And when a court is called upon to exercise this discretion, it must take into account interests of all beneficiaries entitled to the deceased’s estate and ensure that the action taken will be for the interest of justice.’’
14. The Respondent failed to disclose that:
• The deceased had surviving wives and children;
• He was not a direct child of the deceased;
• No consent had been obtained from persons with prior right to administration.
15. The court is satisfied that these omissions were material and go to the root of the grant.
Conclusion
16.In view of the foregoing, this court finds that:
• The Respondent lacked priority and capacity to petition for the grant ad litem;
• The grant issued on 12th February 2015 was obtained through concealment of material facts;
• The continued existence of the grant undermines the proper administration of the estate.
Orders
17.Accordingly, the court makes the following orders:
a. The temporary grant of Letters of Administration ad litem issued to Jared Mochiemo Ogeto on 12th February 2015 is hereby revoked.
b. No further proceedings shall be instituted on behalf of the estate pursuant to the revoked grant.
c. The lawful beneficiaries of the estate are at liberty to commence proper succession proceedings in accordance with the Law of Succession Act.
d. Each Party to bear its own costs.
e. This file is closed .
T.A ODERA
JUDGE
19.2.26
DELIVERED VIRTUALLY ON THIS 19TH DAY OF FEBRUARY 2026 VIA TEAMS PLATFORM IN THE PRESENCE OF MR MOMANYI FOR THE APPLICANT , MR OMWEGA FOR RESPONDENT & CA MR KIPCHIRCHIR ......