1. Jane Auma Omogo died on 28th February 2008. She was 40 years old at the time of her death. Upon her death, her daughter, Mary Adhiambo Omogo, sought letters of administration intestate in respect of her estate. She was issued with the grant of representation on 23rd August 2010.
2. Upon her application, the grant was confirmed on 28th June 2011. The certificate of confirmation of the grant named Jane Auma Omogo’s daughter, Mary Adhiambo Omogo, as the sole beneficiary of her estate, with a 100% interest in 6 properties described as being
1. Parcel No 1047/Mikindani;
2. Parcel No 247/XII/Mombasa Island;
3. Siaya/2916/Karapul;
4. Bank a/c with the Post Bank; and
5. Household goods and personal effects.
3. After confirmation, the matter remained dormant for over 15 years. However, vide a Notice of Motion dated 13th October 2025, the applicant, Millicent Adhiambo Omogo, sought to have the grant issued to Mary Adhiambo Omogo revoked on the ground that it was issued fraudulently by concealment of material information from the Court, namely that the deceased had other beneficiaries and dependants.
4. In the affidavit in support of the application, she averred that she was the daughter of Mr Isaiah Omogo Were. Her mother was the first wife, while Jane Auma Omogo was the second wife. Millicent deposed that her father died on 23rd March 2002. Upon his demise, her stepmother, Mary, together with her and Mary, filed succession cause No 423 of 2004; subsequently, the grant was issued, which grant was confirmed on 11th January 2007. She annexed the certificate of confirmation of grant. According to the certificate of confirmation of grant, Jane inherited Title Nos 1047/Mikindani, 247/XII/Mombasa Mainland, and Siaya/Karapul/2916. Jane died on 28th February 2008.
5. The Applicant averred that the Respondent obtained the grant in respect of Jane’s estate without involving her; she further averred that she, too, was the deceased’s daughter and ought to have been involved. She stated that Jane was her stepmother, that she survived Jane, and that she should have been consulted in the succession proceedings.
6. In response, Mary Adhiambo Omogo filed a reply affidavit, sworn on 17th November 2025, in which she conceded that Millicent was her father’s daughter. She clarified that her mother filed Succession Cause No 423 of 2004.
7. Mary stated that after hearing the parties, DK Maraga, J, as he then was, held that the beneficiaries of the estate of Isaiah Omogo were Jane Auma Omogo, Millicent Adhiambo Omogo and Mary Adhiambo Omogo. The estate was subsequently distributed in accordance with the confirmed grant, with each of the 3 beneficiaries receiving their shares.
8. Mary deposed that, at the time of her death, Jane's property had already been transferred to her. She stated that Millicent was not Jane's daughter, but the daughter of Ms Anastacia Awour, a woman with whom her father had a relationship before his relationship with her mother began.
9. Mary denied that her mother had brought up Millicent as her own daughter. She stated that Jane was only 3 years older than Millicent. In any case, Millicent lived in Komarock, Nairobi, while the family lived in Mombasa. She denied that the parties had ever been in a cordial relationship.
10. The Summons for revocation of the grant was heard by way of viva voce evidence. I shall briefly set out the parties' evidence below.
11. Millicent Adhiambo testified that her mother, Anastasia, was the wife of Isaiah Omogo, whom she married in 1984; she stated that she attended primary school in Mombasa. She further testified that after her stepmother died, she sought to commence succession proceedings; however, Mary Adhiambo was not receptive to her proposal. She also testified that Mary manages her mother’s 2 properties.
12. When cross-examined by Mr Mutugi, Millicent admitted that her relationship with the stepmother wasn’t cordial; she also admitted that her mother was alive. She testified that her father paid her fees and that Jane was unemployed during the time her husband was alive.
13. Her testimony was supported by Carren Anyango Openda. Mrs Openda is the cousin of Isaiah Omogo Were. She testified that Millicent doesn’t live in Mombasa.
14. The Respondent testified as a witness. It was her evidence that her father’s estate was completely distributed, as a result of which the estate ceased to exist. She and the applicant got their respective shares. Mary testified that Millicent never respected her mother. According to her, Millicent lived in Nairobi and would visit from time to time. She further testified that she was the only biological child of her mother.
15. When cross-examined by Ms Temugo Kibet, Mary conceded that the property that went to her mother initially belonged to their father. She also conceded that she didn’t inform Millicent when she filed the succession proceedings.
16. Mary’s evidence was corroborated by Eric Obam, Thomas Mboga Ogolla, Lilian Kadzo Safari, Abdulaziz Abdalla Said and Ibrahim Mwatoza Mbela, all of whom testified that the objector visited her father in Mombasa but did not live there.
17. The Court directed the parties to file written submissions. I will summarize each party's submissions below.
18. The submissions of the Applicant are dated 18th March 2026. Her counsel submitted that the succession proceedings were brought under section 76 of the Law of Succession Act on the ground that the Respondent concealed material facts, to wit, that there was another beneficiary of the estate. It was submitted that the Court recognized the Applicant as the beneficiary of her father's estate, the original registered owner of the properties in the estate.
19. It was urged that the issues went beyond the succession of her father’s estate to the question as to whether “rights already declared and protected by a Court of competent jurisdiction may ultimately be defeated through subsequent succession proceedings.”
20. Counsel identified the issues coming for determination as being on:
1. Whether the rights of the objector which had already crystallized in earlier succession proceedings can be extinguished; and
2. Whether the objector can inherit from the estate of her deceased stepmother.
21. It was urged that previous proceedings determined that she was a beneficiary of the estate. In her counsel's view, the rights recognized by the Court may not subsequently be ignored.
22. On the second issue, she contended that section 35 of the Law of Succession Act grants a surviving spouse a life interest in the estate of the deceased and that upon her demise the estate becomes available for redistribution under the laws governing intestacy. It was urged that the two properties were held in trust for the Applicant and the Respondent and should be available for distribution.
23. On the other hand, the submissions of the Respondent are dated 18th May 2026. It was urged in the said submissions that succession in respect of the estate of Isaiah Omogo Were (deceased) was concluded upon the distribution of the estate to the 3 beneficiaries, including Mary’s Mother, Jane. When Jane died, Mary, as the sole heir, applied for the grant of representation as her only child. Subsequently, she transferred Jane’s properties to herself.
24. Her counsel identified issues for determination as being:
1. Whether the estate of Isaiah Omogo Were was still in existence;
2. Whether the assets distributed to the late Jane Auma Omogo were still available for redistribution;
3. Whether Millicent was a beneficiary of the estate of Jane Auma Omogo;
4. What life interest means and whether it existed in respect of the estate of Jane Auma Omogo;
5. Matrimonial property and equality of spouses during marriage and upon demise;
6. Whether there was fraud or non-disclosure in obtaining the grant; and
7. Who should pay costs.
25. It was urged that the estate of Isaiah Omogo Were was fully distributed and was no longer in existence. Counsel relied on the decision of the Court in re Estate of Vincent Komurgor (Deceased) [2026] KEHC 220 (KLR)
26. It was contended that assets distributed to Jane Auma Omogo were not available for re-distribution as the estate of Isaiah Mugo Were was fully distributed.
27. It was urged that Millicent wasn’t a beneficiary of the estate of Jane Auma Omogo as she was neither her biological issue nor had she proved dependency.
28. Counsel for the Respondent submitted that the interest that Jane got was not a life interest but a full interest that was transmissible to her heirs. Mr Mutugi, for the Respondent, urged that the Court could infer that that was the case from the context of the proceedings. Reliance was made on the case of M’Murithi v Murithi [2015] KECA 347 (KLR).
29. Counsel contended that it wasn’t shown that there had been non-disclosure in respect of the estate of the deceased. Counsel relied on the case of GEOFFREY NDUNGU KINUTHIA & ANOTHER vs MARY NJOKI KARANJA [1998] KECA 240 (KLR) where it was held that:
“The only ground relied upon by the appellants for revocation or annulment of grant was that the grant had been obtained fraudulently by making a false statement or by concealment of material facts. As the appellants were not entitled to any share in plot 805, the respondent had rightly stated in her application that she was the only surviving beneficiary of that land which was registered in the name of the deceased. There was no fraud nor concealment of any material facts…”
30. Lastly, it was urged that the properties forming the estate of the late Isaiah Omogo Were were acquired during the marriage between Jane and Isaiah, and that Anastacia played no part in their acquisition.
31. I have considered the application, the response of the Respondent, the evidence adduced during the hearing as well as the submissions of the parties. In my view the issues for determination are:-
i. Whether the Objector/Applicant is a beneficiary of the estate of Jane Auma Omogo;
ii. Whether Jane Auma Omogo obtained a life interest in the estate of her deceased husband;
iii. Whether there was fraud or misrepresentation on the part of the Petitioner/Respondent; and
iv. Who should pay costs, if at all.
32. This Court acknowledge at the outset that it has the jurisdiction to revoke a grant under section 76 of the Law of Succession Act.
33. Section 76 of the Law of Succession Act states that:
“A grant of representation, whether or not confirmed, may at any time be revoked or annulled if the court decides, either on application by any interested party or of its own motion—
(a)that the proceedings to obtain the grant were defective in substance;
(b)that the grant was obtained fraudulently by the making of a false statement or by the concealment from the court of something material to the case;
(c)that the grant was obtained by means of an untrue allegation of a fact essential in point of law to justify the grant notwithstanding that the allegation was made in ignorance or inadvertently;
(d)that the person to whom the grant was made has failed, after due notice and without reasonable cause either-
(i)to apply for confirmation of the grant within one year from the date thereof, or such longer period as the court order or allow; or
(ii)to proceed diligently with the administration of the estate; or
(iii)to produce to the court, within the time prescribed, any such inventory or account of administration as is required by the provisions of paragraphs (e) and (g) of section 83 or has produced any such inventory or account which is false in any material particular; or
(e)that the grant has become useless and inoperative through subsequent circumstances.”
34. In Albert Imbuga Kisigwa v Recho Kavai Kisigwa [2016] KEHC 1528 (KLR) , it was stated that:
“13. Power to revoke a grant is a discretionary power that must be exercised judiciously and only on sound grounds. It is not a 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.”
35. The Court discussed the circumstances under which a grant may be revoked in the case of In re Estate of Prisca Ong’ayo Nande (Deceased) [2020] KEHC 6553 (KLR). The Court stated that:
“8. Under section 76, a court may revoke a grant so long as the grounds listed above are disclosed, either on its own motion or on the application of a party. A grant of letters of administration may be revoked on three general grounds. The first is where the process of obtaining the grant was attended by problems. The first would be where the process was defective, either because some mandatory procedural step was omitted, or the persons applying for representation was not competent or suitable for appointment, or the deceased died testate having made a valid will and then a grant or letters of administration intestate was made instead of a grant of probate, or vice versa. It could also be that the process was marred by fraud and misrepresentation or concealment of matter, such as where some survivors are not disclosed or the applicant lies that he is a survivor when he is not, among other reasons. The second general ground is where the grant was obtained procedurally, but the administrator, thereafter, got into problems with the exercise of administration, such as where he fails to apply for confirmation of grant within the time allowed, or he fails to proceed diligently with administration, or fails to render accounts as and when required. The third general ground is where the grant has become useless and inoperative following subsequent circumstances, such as where a sole administrator dies leaving behind no administrator to carry on the exercise, or where the sole administrator loses the soundness of his mind for whatever reason or even becomes physically infirm to an extent of being unable to carry out his duties as administrator, or the sole administrator is adjudged bankrupt and, therefore, becomes unqualified to hold any office of trust.”
36. The Applicant avers that she was the deceased’s daughter and that she ought to have been disclosed as a beneficiary. Is that the case? It is common ground that she is the daughter of Anastacia Awuor, a former spouse of Isaiah Omogo Were. Anastacia is still alive. I note that during the succession proceedings in respect of the estate of Isaiah Omogo Were, Anastacia made no claim in respect of the estate. The deceased wasn’t Anastacia’s biological mother. In those circumstances, it is my view that she could not succeed her stepmother as of right.
37. Millicent could only make a claim if she was a dependant of the deceased and was maintained by her. It would appear to me from the evidence adduced that Millicent didn’t live with Jane, was not in a cordial relationship with her and was not, in any case, maintained by her, as to qualify her to be her dependant under section 29 of the Law of Succession Act.
38. In the case of E.M.M v I.G.M & another [2013] KECA 37 (KLR) , it was held by the Court of Appeal that:
“Independent of being a biological child of the deceased, and therefore an automatic dependant, the appellant would also qualify as a dependant of the deceased if he can prove that he is a child whom the deceased had taken into his family as his own, and who was being maintained by the deceased immediately prior to his death. Unlike the dependant under section 29(a), the dependant under section 29(b) has to establish that the deceased had taken him or her into his family as his own child and that he or she was being maintained by the deceased immediately prior to his death.”
39. It is unlikely that Jane maintained Millicent, given their hostile relationship, their domicile in different towns, and their relatively close ages.
40. The foregoing notwithstanding, it has been stated that Jane obtained a life interest in the deceased husband's estate and that upon her death the estate became available for redistribution. My understanding of the Court of Appeal's decision in Murithi v Mutithi [2015]KECA 347(KLR) is that a spouse does not always obtain a life interest, and the circumstances of a particular case may show a different intention.
41. In my view, given the litigation involved, the intention of the parties at the time they entered into the consent recorded by the Court was that each of the 3 beneficiaries of the estate of Isaiah Omogo Were received an absolute share of the estate. Each of the 3 received a share of the estate that they could alienate absolutely at their whim, for value or otherwise.
42. In light of that, I find and hold that there was no life interest in this case, and that upon her demise whatever belonged to Jane remained in her estate to be distributed to her heirs under the law of intestacy.
43. In those circumstances, I am unable to fault Mary. In my view, she was not obliged to disclose that Millicent was alive, as Millicent was not a dependant of Jane at law.
44. What flows from the foregoing is that I am not persuaded that the Notice of Motion filed by the Applicant has any merit. The same is dismissed.
45. Noting the relationship between the parties, I decline to make orders as to costs. Consequently, each party shall bear their own costs.
46. In reaching this decision, the Court agonized greatly. Certainly, the Applicant may feel that she ought to receive the same share of her father’s estate as the sister has effectively received. In my view, the Court’s hands were tied when the grant in respect of Isaiah's estate was confirmed.
47. It is so ordered.
Dated and signed in Nairobi this 21st day of August 2026.
2. Upon her application, the grant was confirmed on 28th June 2011. The certificate of confirmation of the grant named Jane Auma Omogo’s daughter, Mary Adhiambo Omogo, as the sole beneficiary of her estate, with a 100% interest in 6 properties described as being
1. Parcel No 1047/Mikindani;
2. Parcel No 247/XII/Mombasa Island;
3. Siaya/2916/Karapul;
4. Bank a/c with the Post Bank; and
5. Household goods and personal effects.
3. After confirmation, the matter remained dormant for over 15 years. However, vide a Notice of Motion dated 13th October 2025, the applicant, Millicent Adhiambo Omogo, sought to have the grant issued to Mary Adhiambo Omogo revoked on the ground that it was issued fraudulently by concealment of material information from the Court, namely that the deceased had other beneficiaries and dependants.
4. In the affidavit in support of the application, she averred that she was the daughter of Mr Isaiah Omogo Were. Her mother was the first wife, while Jane Auma Omogo was the second wife. Millicent deposed that her father died on 23rd March 2002. Upon his demise, her stepmother, Mary, together with her and Mary, filed succession cause No 423 of 2004; subsequently, the grant was issued, which grant was confirmed on 11th January 2007. She annexed the certificate of confirmation of grant. According to the certificate of confirmation of grant, Jane inherited Title Nos 1047/Mikindani, 247/XII/Mombasa Mainland, and Siaya/Karapul/2916. Jane died on 28th February 2008.
5. The Applicant averred that the Respondent obtained the grant in respect of Jane’s estate without involving her; she further averred that she, too, was the deceased’s daughter and ought to have been involved. She stated that Jane was her stepmother, that she survived Jane, and that she should have been consulted in the succession proceedings.
6. In response, Mary Adhiambo Omogo filed a reply affidavit, sworn on 17th November 2025, in which she conceded that Millicent was her father’s daughter. She clarified that her mother filed Succession Cause No 423 of 2004.
7. Mary stated that after hearing the parties, DK Maraga, J, as he then was, held that the beneficiaries of the estate of Isaiah Omogo were Jane Auma Omogo, Millicent Adhiambo Omogo and Mary Adhiambo Omogo. The estate was subsequently distributed in accordance with the confirmed grant, with each of the 3 beneficiaries receiving their shares.
8. Mary deposed that, at the time of her death, Jane's property had already been transferred to her. She stated that Millicent was not Jane's daughter, but the daughter of Ms Anastacia Awour, a woman with whom her father had a relationship before his relationship with her mother began.
9. Mary denied that her mother had brought up Millicent as her own daughter. She stated that Jane was only 3 years older than Millicent. In any case, Millicent lived in Komarock, Nairobi, while the family lived in Mombasa. She denied that the parties had ever been in a cordial relationship.
10. The Summons for revocation of the grant was heard by way of viva voce evidence. I shall briefly set out the parties' evidence below.
11. Millicent Adhiambo testified that her mother, Anastasia, was the wife of Isaiah Omogo, whom she married in 1984; she stated that she attended primary school in Mombasa. She further testified that after her stepmother died, she sought to commence succession proceedings; however, Mary Adhiambo was not receptive to her proposal. She also testified that Mary manages her mother’s 2 properties.
12. When cross-examined by Mr Mutugi, Millicent admitted that her relationship with the stepmother wasn’t cordial; she also admitted that her mother was alive. She testified that her father paid her fees and that Jane was unemployed during the time her husband was alive.
13. Her testimony was supported by Carren Anyango Openda. Mrs Openda is the cousin of Isaiah Omogo Were. She testified that Millicent doesn’t live in Mombasa.
14. The Respondent testified as a witness. It was her evidence that her father’s estate was completely distributed, as a result of which the estate ceased to exist. She and the applicant got their respective shares. Mary testified that Millicent never respected her mother. According to her, Millicent lived in Nairobi and would visit from time to time. She further testified that she was the only biological child of her mother.
15. When cross-examined by Ms Temugo Kibet, Mary conceded that the property that went to her mother initially belonged to their father. She also conceded that she didn’t inform Millicent when she filed the succession proceedings.
16. Mary’s evidence was corroborated by Eric Obam, Thomas Mboga Ogolla, Lilian Kadzo Safari, Abdulaziz Abdalla Said and Ibrahim Mwatoza Mbela, all of whom testified that the objector visited her father in Mombasa but did not live there.
17. The Court directed the parties to file written submissions. I will summarize each party's submissions below.
18. The submissions of the Applicant are dated 18th March 2026. Her counsel submitted that the succession proceedings were brought under section 76 of the Law of Succession Act on the ground that the Respondent concealed material facts, to wit, that there was another beneficiary of the estate. It was submitted that the Court recognized the Applicant as the beneficiary of her father's estate, the original registered owner of the properties in the estate.
19. It was urged that the issues went beyond the succession of her father’s estate to the question as to whether “rights already declared and protected by a Court of competent jurisdiction may ultimately be defeated through subsequent succession proceedings.”
20. Counsel identified the issues coming for determination as being on:
1. Whether the rights of the objector which had already crystallized in earlier succession proceedings can be extinguished; and
2. Whether the objector can inherit from the estate of her deceased stepmother.
21. It was urged that previous proceedings determined that she was a beneficiary of the estate. In her counsel's view, the rights recognized by the Court may not subsequently be ignored.
22. On the second issue, she contended that section 35 of the Law of Succession Act grants a surviving spouse a life interest in the estate of the deceased and that upon her demise the estate becomes available for redistribution under the laws governing intestacy. It was urged that the two properties were held in trust for the Applicant and the Respondent and should be available for distribution.
23. On the other hand, the submissions of the Respondent are dated 18th May 2026. It was urged in the said submissions that succession in respect of the estate of Isaiah Omogo Were (deceased) was concluded upon the distribution of the estate to the 3 beneficiaries, including Mary’s Mother, Jane. When Jane died, Mary, as the sole heir, applied for the grant of representation as her only child. Subsequently, she transferred Jane’s properties to herself.
24. Her counsel identified issues for determination as being:
1. Whether the estate of Isaiah Omogo Were was still in existence;
2. Whether the assets distributed to the late Jane Auma Omogo were still available for redistribution;
3. Whether Millicent was a beneficiary of the estate of Jane Auma Omogo;
4. What life interest means and whether it existed in respect of the estate of Jane Auma Omogo;
5. Matrimonial property and equality of spouses during marriage and upon demise;
6. Whether there was fraud or non-disclosure in obtaining the grant; and
7. Who should pay costs.
25. It was urged that the estate of Isaiah Omogo Were was fully distributed and was no longer in existence. Counsel relied on the decision of the Court in re Estate of Vincent Komurgor (Deceased) [2026] KEHC 220 (KLR)
26. It was contended that assets distributed to Jane Auma Omogo were not available for re-distribution as the estate of Isaiah Mugo Were was fully distributed.
27. It was urged that Millicent wasn’t a beneficiary of the estate of Jane Auma Omogo as she was neither her biological issue nor had she proved dependency.
28. Counsel for the Respondent submitted that the interest that Jane got was not a life interest but a full interest that was transmissible to her heirs. Mr Mutugi, for the Respondent, urged that the Court could infer that that was the case from the context of the proceedings. Reliance was made on the case of M’Murithi v Murithi [2015] KECA 347 (KLR).
29. Counsel contended that it wasn’t shown that there had been non-disclosure in respect of the estate of the deceased. Counsel relied on the case of GEOFFREY NDUNGU KINUTHIA & ANOTHER vs MARY NJOKI KARANJA [1998] KECA 240 (KLR) where it was held that:
“The only ground relied upon by the appellants for revocation or annulment of grant was that the grant had been obtained fraudulently by making a false statement or by concealment of material facts. As the appellants were not entitled to any share in plot 805, the respondent had rightly stated in her application that she was the only surviving beneficiary of that land which was registered in the name of the deceased. There was no fraud nor concealment of any material facts…”
30. Lastly, it was urged that the properties forming the estate of the late Isaiah Omogo Were were acquired during the marriage between Jane and Isaiah, and that Anastacia played no part in their acquisition.
31. I have considered the application, the response of the Respondent, the evidence adduced during the hearing as well as the submissions of the parties. In my view the issues for determination are:-
i. Whether the Objector/Applicant is a beneficiary of the estate of Jane Auma Omogo;
ii. Whether Jane Auma Omogo obtained a life interest in the estate of her deceased husband;
iii. Whether there was fraud or misrepresentation on the part of the Petitioner/Respondent; and
iv. Who should pay costs, if at all.
32. This Court acknowledge at the outset that it has the jurisdiction to revoke a grant under section 76 of the Law of Succession Act.
33. Section 76 of the Law of Succession Act states that:
“A grant of representation, whether or not confirmed, may at any time be revoked or annulled if the court decides, either on application by any interested party or of its own motion—
(a)that the proceedings to obtain the grant were defective in substance;
(b)that the grant was obtained fraudulently by the making of a false statement or by the concealment from the court of something material to the case;
(c)that the grant was obtained by means of an untrue allegation of a fact essential in point of law to justify the grant notwithstanding that the allegation was made in ignorance or inadvertently;
(d)that the person to whom the grant was made has failed, after due notice and without reasonable cause either-
(i)to apply for confirmation of the grant within one year from the date thereof, or such longer period as the court order or allow; or
(ii)to proceed diligently with the administration of the estate; or
(iii)to produce to the court, within the time prescribed, any such inventory or account of administration as is required by the provisions of paragraphs (e) and (g) of section 83 or has produced any such inventory or account which is false in any material particular; or
(e)that the grant has become useless and inoperative through subsequent circumstances.”
34. In Albert Imbuga Kisigwa v Recho Kavai Kisigwa [2016] KEHC 1528 (KLR) , it was stated that:
“13. Power to revoke a grant is a discretionary power that must be exercised judiciously and only on sound grounds. It is not a 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.”
35. The Court discussed the circumstances under which a grant may be revoked in the case of In re Estate of Prisca Ong’ayo Nande (Deceased) [2020] KEHC 6553 (KLR). The Court stated that:
“8. Under section 76, a court may revoke a grant so long as the grounds listed above are disclosed, either on its own motion or on the application of a party. A grant of letters of administration may be revoked on three general grounds. The first is where the process of obtaining the grant was attended by problems. The first would be where the process was defective, either because some mandatory procedural step was omitted, or the persons applying for representation was not competent or suitable for appointment, or the deceased died testate having made a valid will and then a grant or letters of administration intestate was made instead of a grant of probate, or vice versa. It could also be that the process was marred by fraud and misrepresentation or concealment of matter, such as where some survivors are not disclosed or the applicant lies that he is a survivor when he is not, among other reasons. The second general ground is where the grant was obtained procedurally, but the administrator, thereafter, got into problems with the exercise of administration, such as where he fails to apply for confirmation of grant within the time allowed, or he fails to proceed diligently with administration, or fails to render accounts as and when required. The third general ground is where the grant has become useless and inoperative following subsequent circumstances, such as where a sole administrator dies leaving behind no administrator to carry on the exercise, or where the sole administrator loses the soundness of his mind for whatever reason or even becomes physically infirm to an extent of being unable to carry out his duties as administrator, or the sole administrator is adjudged bankrupt and, therefore, becomes unqualified to hold any office of trust.”
36. The Applicant avers that she was the deceased’s daughter and that she ought to have been disclosed as a beneficiary. Is that the case? It is common ground that she is the daughter of Anastacia Awuor, a former spouse of Isaiah Omogo Were. Anastacia is still alive. I note that during the succession proceedings in respect of the estate of Isaiah Omogo Were, Anastacia made no claim in respect of the estate. The deceased wasn’t Anastacia’s biological mother. In those circumstances, it is my view that she could not succeed her stepmother as of right.
37. Millicent could only make a claim if she was a dependant of the deceased and was maintained by her. It would appear to me from the evidence adduced that Millicent didn’t live with Jane, was not in a cordial relationship with her and was not, in any case, maintained by her, as to qualify her to be her dependant under section 29 of the Law of Succession Act.
38. In the case of E.M.M v I.G.M & another [2013] KECA 37 (KLR) , it was held by the Court of Appeal that:
“Independent of being a biological child of the deceased, and therefore an automatic dependant, the appellant would also qualify as a dependant of the deceased if he can prove that he is a child whom the deceased had taken into his family as his own, and who was being maintained by the deceased immediately prior to his death. Unlike the dependant under section 29(a), the dependant under section 29(b) has to establish that the deceased had taken him or her into his family as his own child and that he or she was being maintained by the deceased immediately prior to his death.”
39. It is unlikely that Jane maintained Millicent, given their hostile relationship, their domicile in different towns, and their relatively close ages.
40. The foregoing notwithstanding, it has been stated that Jane obtained a life interest in the deceased husband's estate and that upon her death the estate became available for redistribution. My understanding of the Court of Appeal's decision in Murithi v Mutithi [2015]KECA 347(KLR) is that a spouse does not always obtain a life interest, and the circumstances of a particular case may show a different intention.
41. In my view, given the litigation involved, the intention of the parties at the time they entered into the consent recorded by the Court was that each of the 3 beneficiaries of the estate of Isaiah Omogo Were received an absolute share of the estate. Each of the 3 received a share of the estate that they could alienate absolutely at their whim, for value or otherwise.
42. In light of that, I find and hold that there was no life interest in this case, and that upon her demise whatever belonged to Jane remained in her estate to be distributed to her heirs under the law of intestacy.
43. In those circumstances, I am unable to fault Mary. In my view, she was not obliged to disclose that Millicent was alive, as Millicent was not a dependant of Jane at law.
44. What flows from the foregoing is that I am not persuaded that the Notice of Motion filed by the Applicant has any merit. The same is dismissed.
45. Noting the relationship between the parties, I decline to make orders as to costs. Consequently, each party shall bear their own costs.
46. In reaching this decision, the Court agonized greatly. Certainly, the Applicant may feel that she ought to receive the same share of her father’s estate as the sister has effectively received. In my view, the Court’s hands were tied when the grant in respect of Isaiah's estate was confirmed.
47. It is so ordered.
Dated and signed in Nairobi this 21st day of August 2026.