[1] Before court for determination is the Summons for Revocation and/or Annulment of Grant dated 16 th August 2024. It was brought by the Elizabeth Cheserem Rugut , (referred to in the said application as the objector) under Sections 47 and 76 of the Law of Succession Act as well as Rules 26, 44(1) and 73 of the Probate and Administration Rules. The application seeks the following orders:
[a] THAT the Grant of Letters of Administration issued to Mark Kipkemei Choge on 20 th March, 2013 and confirmed on 1 st October, 2015 be annulled and/or revoked.
[b] THAT upon the grant of prayer [a] above, the deceased's estate be distributed to his three houses in accordance with the provisions of Section 40 of the Law of Succession Act, Cap 160 of the laws of Kenya having been polygamous in his lifetime.
[c] THAT any such further orders be granted as the Court deems expedient in the circumstances.
[d] THAT costs of the application be provided for.
[2] The application is predicated on the grounds that the deceased was polygamous during his lifetime, having married three wives including the objector; and that the objector is the only surviving widow. Therefore, she contended that she ranks in priority to Mark Kipkemei Choge, the petitioner/respondent herein, and had the right to institute these proceedings in place of the petitioner. The objector further contended that the Grant herein was confirmed on the basis of forgeries undertaken by the petitioner; and that as a result she has been disinherited along with her children of part of their rightful share of the deceased’s estate.
[3] The objector further averred that she has a beneficial interest in 31 acres of the estate and was constrained to file the instant application to ensure justice for herself and her children. She further contended that the Petition for Grant of Letters of Administration Intestate was filed herein by the petitioner without her knowledge, consent or participation; yet she is the sole surviving widow. It was therefore her prayer that her application be allowed to pave way for equal distribution of the subject estate that would ensure she receives 31 acres that is due to her and her children.
[4] The application is supported by an affidavit sworn by the objector, on 16 th August 2024 in which she deposed that the deceased herein had three (3) wives in his lifetime, namely: Elizabeth Tapsharga Rugut who had seven (7) children [four (4) sons and three (3) daughters]; Maria Tabutmoi Rugut who had six children: [three (3) sons and three (3) daughters]; and herself, Elizabeth Cheserem Botkiptuwei with four (4) children [three (3) daughters and one (1) son]. She further deposed that the deceased made it known to the members of his family during his lifetime that his wish was for the sole parcel of land known as L.R No. Nandi/Chemnoet/103, measuring approximately 93 acres, to be shared equally amongst his three houses, with each house receiving 31 acres.
[5] The objector also averred that, during the lifetime of the deceased each of the three houses were given portions to utilize for farming purposes pending the ultimate identification of their respective shares. She added that each of the three widows of the deceased had the mandate to divide their respective shares for the benefit of their children.
[6] At paragraphs 8 and 10 of her Supporting Affidavit, the objector averred that there has always been a strained relationship between her and her stepchildren who believe that she is not entitled to inherit an equal share of land as their houses. She pointed out that as a result she was not notified of the filing of the Petition for Grant. She added that she only discovered recently that the petitioner had forged pleadings and caused the confirmation of grant to be done without her participation, consent or knowledge. In particular, she deposed that the signature appended against her name in the Consent annexed to the affidavit in support of the application for confirmation is not hers. She added that, being illiterate, she always affixes a thumb print whenever required to execute any document.
[7] She was further aggrieved that in the Mode of Distribution presented by the petitioner and approved by the Court, her share of the estate of 31 acres was illegally and/or maliciously reduced by the petitioner to twelve (12) acres. She also mentioned that the petitioner has threatened to sell a portion of the estate comprising her share of the estate, hence the urgent need for the Court’s intervention. She accordingly prayed that her application be allowed and the orders sought by her granted as set out in the Summons.
[8] The petitioner opposed the application; to which end he relied on his Replying Affidavit sworn on the 9 th April 2025. He deposed that he is the son the deceased and the administrator of his estate, having been issued with a Grant of Letters of Administration Intestate dated on 20 th March 2013. The petitioner also averred that the Grant was confirmed on 1 st October 2015 and the Mode of Distribution of the estate of the deceased approved as illustrated in the Certificate of Confirmation of Grant.
[9] At paragraph 5 of his Replying Affidavit, the respondent averred that the objector was involved in the entire succession process and that she consented not only to the issuance of the Grant of Letters of Administration to him, but also to the proposed Mode of Distribution presented alongside the Summons for Confirmation of Grant. He also pointed out that the objector was also present when the application for confirmation of Grant came up for hearing.
[10] The petitioner deposed that, upon obtaining the Certificate for Confirmation of Grant, he embarked on registration of the subject parcel at the land's offices for onward transmission of the estate of the deceased to the beneficiaries. He added that the has already been transmitted to him as the administrator pending distribution and further transmission to the other beneficiaries. He annexed a Certificate of Official Search to his Replying Affidavit in proof of his assertion.
[11] The petitioner also averred that the beneficiaries of the deceased are entitled to inherit from the estate in accordance with their respective shares as stated in the Certificate of Confirmation of Grant and that he has no intention of disinheriting them as alleged by the applicant. He reiterated his stance that, according to the Certificate of Confirmation of Grant dated 1 st October 2015, the objector is entitled to 12 acres which is the portion she has been in possession and occupation for a period of over 51 years. He added that the applicant has over time sold a portion of her land to third parties, including William Ngetich and Philip Lelei who are now in possession and occupation of the portion of the land.
[12] In the light of the foregoing averments, the petitioner concluded his Replying Affidavit by asserting that the beneficiaries will suffer irreparable harm if the application is allowed, granted that the Grant of Letters of Administration and the Certificate of Confirmation of Grant was obtained in good faith and with the knowledge and participation of all the beneficiaries of the estate.
[13] The application was canvassed by way of viva voce evidence, pursuant to the directions given herein on 3 rd March 2025. The objector called two witnesses whereas the petitioner called three witnesses. The objector testified as PW1 on 14 th May 2025. She essentially adopted her Supporting Affidavit sworn on 16 th August 2024 and underscored her assertion that she did not consent to the proposed Mode of Distribution appended to the petitioner’s application for Confirmation of Grant. She explained that she is illiterate and therefore could not have signed the consent in the manner suggested by the petitioner. She added that she ordinarily affixes her thumbprint to documents. She therefore maintained her stance that the Grant and the Certificate of Confirmation were fraudulently obtained by the petitioner.
[14] The objector called Simon Kipkorir Rotich (PW2) as her witness. He confirmed that the deceased was a village-mate and therefore the objector and the other members of the deceased’s family are well-known to him. He stated that Elizabeth Cheserem Rugut was the deceased’s third wife. He stated that he could not remember whether the deceased divided his land among his three wives, but added that it was within his knowledge that each of the wives had a share to cultivate.
[15] The petitioner, Mark Kipkemei Choge , testified as DW1 on 4 th March 2026. He adopted his Replying Affidavit and witness statement dated 9 th June 2025 as his evidence in chief. He testified that the deceased was his father and that they shared the estate according to what had been agreed by the family; and that the Grant was obtained and confirmed in the presence of all the beneficiaries. He acknowledged that his father was married to three wives and the objector is the third widow. He also conceded that both the 1 st and 2 nd houses received 40 acres each while the objector was apportioned 12 acres; adding that the objector did not object to that mode of distribution but expressed her approval by signing the consent.
[16] The respondent called his stepbrother, Hillary Kiptum Bett (DW2) as his witness to confirm that the objector sold a portion of the land given to her to a third party. DW2 testified that he is the son of the objector and was a witness to the land sale agreement in question. He also confirmed that his mother is illiterate and cannot read or write; and that she was allocated only 12 acres of the estate.
[17] Beatrice Cherono Samoei (DW3) is one of the deceased’s daughters in law. She adopted her witness statement dated 9 th June 2025 as her evidence in chief and reiterated that her husband Edward Samoei is deceased, and it was on that account that she and her co-wife Roselyn received 10 acres as inheritance on his behalf. She explained that the first and 2 nd house received 40 acres each which was shared within the respective houses.
[18] In her closing submissions dated 9 th March 2026, the objector proposed the following issues for determination:
[a] Whether the proceedings herein are testate or intestate;
[b] Who ranks in priority in the application for the grant of letters of administration between the objector and the Administrator?
[c] Whether the requirements of Section 76 of the Law of Succession Act have been met by the objector to warrant the revocation of the grant issued to the Administrator
[d] How should the estate herein be distributed?
[19] On the nature of the proceedings the applicant submitted that, although the petitioner alleged that the deceased left a Will, the proceedings are intestate as no such Will was presented to the Court. On who ranks in priority for purposes of a Petition for Grant of Letters of Administration, the applicant relied on Section 66 of the Law of Succession Act and urged the Court to find that, being the sole surviving spouse of the deceased, she ranks in priority to the petitioner and any of the other beneficiaries.
[20] On whether the requirements of Section 76 have been met to warrant the revocation of the grant issued to the Administrator, the objector urged the Court to find that she did not participate at all in the institution of these proceedings from inception; and that her signature was forged on the consent documents. Having denied that she attended court during confirmation of Grant, she therefore submitted that she has met the requirements of Section 76 of the Law of Succession Act to warrant the revocation of the grant.
[21] On how the estate should be distributed, the objector cited Section 40 of the Law of Succession Act and proposed that the estate be divided among the houses according to the number of children in each house, but also adding her as an additional unit to the number of children in the third house. He also made reference to case law in this regard.
[22] On his part, the petitioner relied on his written submissions dated 18 th March 2026. He proposed the following issues for determination:
[a] Whether the objector attended court during confirmation of grant on 27 th July 2015.
[b] Whether the estate of the deceased was distributed to the beneficiaries.
[c] Whether grant ought to be revoked.
[23] The petitioner submitted that, since he had demonstrated to the requisite standard that the objector and the other beneficiaries attended court during confirmation of Grant on 27 th July 2015, no justification had been shown for the revocation of the Grant or the Certificate of Confirmation. He also made reference to the typed and certified court proceedings, especially the proceedings of 27 th July 2015, to confirm that the objector was listed as the first beneficiary in attendance that day. The petitioner relied on the case Mburu Njoroge v Fredrick Mburu Njoroge [2014] KEHC 5108 (KLR) to buttress his case.
[24] The respondent submitted that on the basis of the approved Mode of Distribution appended to the Certificate of Confirmation of Grant, the estate had been distributed to the beneficiaries, taking into account the allocation made by the deceased before his demise. On whether the Grant ought to be revoked, the petitioner relied on In re estate of Prisca Ongayo Nande (deceased) [2020] КЕНС 6553 (KLR) and In re estate of Kiberenge Mukwa (deceased) [2021] K ЕНС 1392 (KLR) and submitted that the application before the court is not founded on any of the grounds set out in Section 76 of the Law of Succession Act.
[25] According to him, the application is not about a grant that has been obtained in the basis of a process that was defective, or tainted by fraud, misrepresentation and concealment of matter from court. He further contended that the objector did not allege any failure on his part as the administrator, in terms of failing to apply for confirmation of grant within the timelines given in law, or failing to diligently administer the estate, or to render the accounts. He also submitted that it is not contended that the Grant has become useless or inoperative on account of changed circumstances. He therefore posited that the application must fail.
[26] I have carefully considered the application, the grounds on which it was premised and the averments set out in the parties’ respective affidavits. I have similarly considered the testimonies of the witnesses and the written submissions filed by learned counsel on behalf of the parties. It is common ground that the objector is the only surviving widow of the deceased out of the three wives the deceased was married to in his lifetime. It is also not in dispute that the petitioner is one of the sons of the deceased and that he was appointed as the administrator of the estate of the deceased on 20 th March 2013; which Grant was confirmed and a Certificate of Confirmation issued on 1 st October 2015.
[27] Although the applicant raised the question for determination as to the exact nature of these proceedings, whether testate or intestate, at this stage of the proceedings, that is a non-issue. I say so because the proceedings speak for themselves. The Petition for Grant filed herein on 20 th March 2012 by the petitioner was in terms of Form P&A.80, and is a Petition for Grant of Letters of Administration Intestate. The petitioner declared therein that the deceased died intestate on 1 st August 1988. The matter proceeded as such up to the point of confirmation of Grant. Any suggestions that the deceased left a Will is foreign to the proceedings and is not within the ambit of this application.
[28] In the premises, the only issues for determination in respect of the Summons for Revocation of Grant dated 16 th August 2024 are:
[a] Whether sufficient cause has been shown by the objector for the revocation of the Grant of Letters of Administration Intestate issued to the petitioner, Mark Kipkemei Choge , on 20 th March 2013 and confirmed on 1 st October, 2015.
[b] What orders ought to issue.
A. On Revocation of Grant:
[29] The Summons before Court seeks annulment and/or revocation of grant. It is anchored on Section 76 of the Law of Succession Act which provides as follows:
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 has ordered or allowed; 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.
[30] The import of the above provision was commented on by Hon. Mativo, J . (as he then was) in Re Estate of Wahome Mwenje Ngonoro (Deceased) [2016] eKLR as follows:
“…A close look at Section 76 shows that the grounds can be divided into the following categories:- the propriety of the grant making process; mal-administration or where the grant has become inoperative due to subsequent circumstances…”
[31] In her Supporting Affidavit sworn on 16 th August 2024, the objector stated that the deceased herein had children with his three wives in his lifetime as follows: Elizabeth Tapsharga Rugut had seven (7) children (four sons and three daughters); Maria Tabutmoi Rugut had six children: (three sons and three daughters); and Elizabeth Cheserem Botkiptuwei with four children: (three daughters and one son). It was therefore her contention that, as the only surviving spouse, she ranks in priority to the petitioner.
[32] Needless to say that the matter of appointment of administrators is one in which the final discretion lies with the Court. Section 66 of the Law of Succession Act is explicit on this and on the order of priority. It provides that:
“When a deceased has died intestate, the court shall, save as otherwise expressly provided, have a final discretion as to the person or persons to whom a grant of letters of administration shall, in the best interests of all concerned, be made, but shall, without prejudice to that discretion, accept as a general guide the following order of preference-
(a) surviving spouse or spouses, with or without association of other beneficiaries;
(b) other beneficiaries entitled on intestacy, with priority according to their respective beneficial interests as provided by Part V;
(c) the Public Trustee; and
(d) creditors ”
[33] Clearly, as between the objector and the petitioner, the objector ranked higher in the order of preference for purposes of an application for Grant of Letters of Administration Intestate in respect of the estate of the deceased , Joseph Some Rugut. Nevertheless, Rule 66 provides that:
“Where a person who is not a person in the order of preference set out in section 66 of the Act seeks a grant of administration intestate he shall before the making of the grant furnish to the court such information as the court may require to enable it to exercise its discretion under that section and shall also satisfy the court that every person having a prior preference to a grant by virtue of that section has—
(a) renounced his right generally to apply for a grant; or
(b) consented in writing to the making of the grant to the applicant;
(c) been issued with a citation calling upon him either to renounce or to apply for a grant.
[34] In the same vein, Rule 26(2) of the Probate and Administration Rules provides that:
“An application for a grant where the applicant is entitled in a degree equal to or lower than that of any other person shall, in default of renunciation, or written consent in Form 38 or 39, by all persons so entitled in equality or priority, be supported by an affidavit of the applicant and such other evidence as the court may require.”
[35] In this instance, the petitioner filed a letter from the chief of Lolkeringet Location on 20 th March 2012 in which the beneficiaries of the deceased were listed as follows:
[a] Elizabeth Cheserem Rugut 54 years widow
[b] Patrice Kirwa Samoei 69 years son
[c] Mark Kipkemei Choge 62 years Son
[d] Rosaline Chepkorir Samoei 77 years Daughter in law
[e] Beatrice Cherono Samoei 53 years Daughter in law
[f] Prisilla Cheptarus Choge 59 years Daughter in law
[36] The chief further indicated that the family had agreed that the petitioner, Mark Kipkemei Choge , be appointed as the administrator.
[37] The petitioner also filed a consent to the making of Grant, Form P&A 38, confirming that those ranking in priority or of equal rank to him, including the applicant, Elizabeth Cheserem Rugut , had given their consent to his Petition for Grant of Letters of Administration Intestate. That document shows that the objector duly signed the consent document. It is also notable that in the Affidavit in Support of the Petition for Grant of Letters of Administration Intestate, Form P&A5, the names of the applicant and the five other beneficiaries were restated as the only surviving beneficiaries of the deceased.
[38] In the Certificate of Confirmation of that Grant issued herein on 1 st October 2015, the list of beneficiaries stated therein tallied with what was declared by the area chief and the petitioner in his Affidavit in Support of the Petition. For purposes of the Summons for Confirmation of Grant, the petitioner averred that all the six surviving beneficiaries had agreed on the Mode of Distribution and signed a Consent to that effect. The estate property, measuring 93 acres was to be distributed as follows:
[a] Elizabeth Cheserem Rugut 12 acres
[b] Patrice Kirwa Samoei 20 acres
[c] Mark Kipkemei Choge 20 acres
[d] Rosaline Chepkorir samoei 10 acres
[e] Beatrice Cherono Samoei 10 acres
[f] Prisilla Cheptarus Choge 20 acres
[39] All indications are therefore that the objector consented to the Mode of Distribution and appended her signature to the consent dated 19 th March 2014. It was on that basis that the Certificate of Confirmation was made. A perusal of the proceedings of the court also shows that the objector was present on 27 th July 2015 when the Summons for Confirmation came up for hearing and her name was listed as the first in the list of beneficiaries present. The proceedings for that day further show that the beneficiaries were all represented by Mr. Birech , Advocate , who informed the Court that all the beneficiaries had agreed to the proposed mode of distribution.
[40] If, as alleged by the objector, that her signature was forged, then it was upon her to prove that assertion to the requisite standard. In this regard, Section 107(1) of the Evidence Act, Cap 80, provides that:
Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist .
[41] Hence, in Antony Francis Wareham t/a AF Wareham & 2 others v Kenya Post Office Savings Bank (Civil Appeal 5 & 48 of 2002) [2004] KECA 166 (KLR) (2 July 2004) (Judgment) the Court of Appeal held:
“We have carefully considered the judgement of the superior court, the grounds of appeal raised against it and the submissions before us on those matters. Having done so we are impelled to state unequivocally that in our adversarial system of litigation, cases are tried and determined on the basis of the pleadings made and the issues of fact or law framed by the parties or the Court on the basis of those pleadings pursuant to the provisions of order XIV of the Civil Procedure Rules. And the burden of proof is on the plaintiff and the degree thereof is on a balance of probabilities. In discharging that burden, the only evidence to be adduced is evidence of existence or non existence of the facts in issue or facts relevant to the issue. It follows from those principles that only evidence of facts pleaded is to be admitted and if the evidence does not support the facts pleaded, the party with the burden of proof should fail…”
[42] This position was reiterated in Palace Investments Limited v Geoffrey Kariuki Mwenda & another [2015] eKLR, as follows:
“The burden of proof is placed upon the appellant and is to be discharged on a balance of probabilities. Denning J. in Miller –vs- Minister of Pensions [1947] 2 ALL ER 372 discussing the burden of proof had this to say: -
“That degree is well settled. It must carry a reasonable degree of probability, but not so high as is required in a criminal case. If the evidence is such that the tribunal can say: ‘We think it more probable than not’, the burden is discharged, but, if the probabilities are equal, it is not. Thus, proof on a balance or preponderance of probabilities means a win, however narrow. A draw is not enough. So, in any case in which the tribunal cannot decide one way or the other which evidence to accept, where both parties’ explanations are equally (un)convincing, the party bearing the burden of proof will lose, because the requisite standard will not have been attained.”
[43] Needless to add that where fraud is alleged, the standard of proof is the intermediate one. The essence of fraud, in legal parlance, is aptly captured in the definition proffered by Black's Law Dictionary , Tenth Edition, thus:
"Fraud consists of some deceitful practice or willful device, resorted to with intent to deprive another of his right, or in some manner to do him an injury. As distinguished from negligence, it is always positive, intentional. As applied to contracts, it is the cause of an error bearing on a material part of the contract, created or continued by artifice, with design to obtain some unjust advantage to the one party, or to cause an inconvenience or loss to the other. Fraud, in the sense of a court of equity, properly includes all acts, omissions, and concealments which involve a breach of legal or equitable duty, trust, or confidence justly reposed, and are injurious to another, or by which an undue and unconscientious advantage is taken of another."
[44] It is trite therefore that fraud, because of its very nature, must be strictly proved. In Central Bank of Kenya Ltd v Trust Bank Ltd & 4 Others NAI Civil Appeal No. 215 of 1996, the Court of Appeal held that:
"...Fraud and conspiracy to defraud are very serious allegations. The onus of prima facie proof was much heavier on the Appellant in this case than in an ordinary Civil Case..."
[45] Similarly, in Rosemary Wanjiku Murithi v George Maina Ndinwa [2014] eKLR , the Court of Appeal expressed the view that:
"…Proof of fraud involves questions of fact. Simply raising the issue of fraud in a statement of defence and counterclaim is not proof of fraud. The two courts below held that fraud had not been proved. The appellant has not illustrated any error or misdirection in law on the part of the learned Judge to show that fraud was indeed proved and the Judge erred in finding that it had not been proved."
[46] I find no such proof either in the objector’s Supporting Affidavit or in her viva voce evidence adduced herein. Indeed, at paragraph 7 of her Further Affidavit dated 17 th April 2025, the objector conceded that she was not opposed to the petitioner being retained as the administrator of the estate of the deceased. It is therefore my finding that no justification has been shown for revocation of the Grant of Letters of Administration Intestate issued herein to the petitioner.
[47] The second ground relied on by the objector was that the petitioner concealed information from the Court as to the exact number of beneficiaries. It is notable however that, although the objector averred that the deceased left more dependants than was declared by the petitioner, she did not supply the names of those additional dependants. She merely alleged at paragraph 3 of her Supporting Affidavit that the deceased had three wives and 17 children but failed to prove that assertion.
[48] The foregoing notwithstanding, it is manifest that although the objector is the surviving widow, she ended up with a smaller portion of the estate than the daughters in law of the deceased. No justification for this state of affairs was given by the petitioner other than the bare assertion that the objector consented to being given 12 acres. Section 40 of the Law of Succession Act provides that:-
“(1) Where an intestate has married more than once under any system of law permitting polygamy, his personal and household effects and the residue of the net intestate estate shall, in the first instance, be divided among the houses according to the number of children in each house, but also adding any wife surviving him as an additional unit to the number of children.
(2)The distribution of the personal and household effects and the residue of the net intestate estate within each house shall then be in accordance with the rules set
[...truncated]
[a] THAT the Grant of Letters of Administration issued to Mark Kipkemei Choge on 20 th March, 2013 and confirmed on 1 st October, 2015 be annulled and/or revoked.
[b] THAT upon the grant of prayer [a] above, the deceased's estate be distributed to his three houses in accordance with the provisions of Section 40 of the Law of Succession Act, Cap 160 of the laws of Kenya having been polygamous in his lifetime.
[c] THAT any such further orders be granted as the Court deems expedient in the circumstances.
[d] THAT costs of the application be provided for.
[2] The application is predicated on the grounds that the deceased was polygamous during his lifetime, having married three wives including the objector; and that the objector is the only surviving widow. Therefore, she contended that she ranks in priority to Mark Kipkemei Choge, the petitioner/respondent herein, and had the right to institute these proceedings in place of the petitioner. The objector further contended that the Grant herein was confirmed on the basis of forgeries undertaken by the petitioner; and that as a result she has been disinherited along with her children of part of their rightful share of the deceased’s estate.
[3] The objector further averred that she has a beneficial interest in 31 acres of the estate and was constrained to file the instant application to ensure justice for herself and her children. She further contended that the Petition for Grant of Letters of Administration Intestate was filed herein by the petitioner without her knowledge, consent or participation; yet she is the sole surviving widow. It was therefore her prayer that her application be allowed to pave way for equal distribution of the subject estate that would ensure she receives 31 acres that is due to her and her children.
[4] The application is supported by an affidavit sworn by the objector, on 16 th August 2024 in which she deposed that the deceased herein had three (3) wives in his lifetime, namely: Elizabeth Tapsharga Rugut who had seven (7) children [four (4) sons and three (3) daughters]; Maria Tabutmoi Rugut who had six children: [three (3) sons and three (3) daughters]; and herself, Elizabeth Cheserem Botkiptuwei with four (4) children [three (3) daughters and one (1) son]. She further deposed that the deceased made it known to the members of his family during his lifetime that his wish was for the sole parcel of land known as L.R No. Nandi/Chemnoet/103, measuring approximately 93 acres, to be shared equally amongst his three houses, with each house receiving 31 acres.
[5] The objector also averred that, during the lifetime of the deceased each of the three houses were given portions to utilize for farming purposes pending the ultimate identification of their respective shares. She added that each of the three widows of the deceased had the mandate to divide their respective shares for the benefit of their children.
[6] At paragraphs 8 and 10 of her Supporting Affidavit, the objector averred that there has always been a strained relationship between her and her stepchildren who believe that she is not entitled to inherit an equal share of land as their houses. She pointed out that as a result she was not notified of the filing of the Petition for Grant. She added that she only discovered recently that the petitioner had forged pleadings and caused the confirmation of grant to be done without her participation, consent or knowledge. In particular, she deposed that the signature appended against her name in the Consent annexed to the affidavit in support of the application for confirmation is not hers. She added that, being illiterate, she always affixes a thumb print whenever required to execute any document.
[7] She was further aggrieved that in the Mode of Distribution presented by the petitioner and approved by the Court, her share of the estate of 31 acres was illegally and/or maliciously reduced by the petitioner to twelve (12) acres. She also mentioned that the petitioner has threatened to sell a portion of the estate comprising her share of the estate, hence the urgent need for the Court’s intervention. She accordingly prayed that her application be allowed and the orders sought by her granted as set out in the Summons.
[8] The petitioner opposed the application; to which end he relied on his Replying Affidavit sworn on the 9 th April 2025. He deposed that he is the son the deceased and the administrator of his estate, having been issued with a Grant of Letters of Administration Intestate dated on 20 th March 2013. The petitioner also averred that the Grant was confirmed on 1 st October 2015 and the Mode of Distribution of the estate of the deceased approved as illustrated in the Certificate of Confirmation of Grant.
[9] At paragraph 5 of his Replying Affidavit, the respondent averred that the objector was involved in the entire succession process and that she consented not only to the issuance of the Grant of Letters of Administration to him, but also to the proposed Mode of Distribution presented alongside the Summons for Confirmation of Grant. He also pointed out that the objector was also present when the application for confirmation of Grant came up for hearing.
[10] The petitioner deposed that, upon obtaining the Certificate for Confirmation of Grant, he embarked on registration of the subject parcel at the land's offices for onward transmission of the estate of the deceased to the beneficiaries. He added that the has already been transmitted to him as the administrator pending distribution and further transmission to the other beneficiaries. He annexed a Certificate of Official Search to his Replying Affidavit in proof of his assertion.
[11] The petitioner also averred that the beneficiaries of the deceased are entitled to inherit from the estate in accordance with their respective shares as stated in the Certificate of Confirmation of Grant and that he has no intention of disinheriting them as alleged by the applicant. He reiterated his stance that, according to the Certificate of Confirmation of Grant dated 1 st October 2015, the objector is entitled to 12 acres which is the portion she has been in possession and occupation for a period of over 51 years. He added that the applicant has over time sold a portion of her land to third parties, including William Ngetich and Philip Lelei who are now in possession and occupation of the portion of the land.
[12] In the light of the foregoing averments, the petitioner concluded his Replying Affidavit by asserting that the beneficiaries will suffer irreparable harm if the application is allowed, granted that the Grant of Letters of Administration and the Certificate of Confirmation of Grant was obtained in good faith and with the knowledge and participation of all the beneficiaries of the estate.
[13] The application was canvassed by way of viva voce evidence, pursuant to the directions given herein on 3 rd March 2025. The objector called two witnesses whereas the petitioner called three witnesses. The objector testified as PW1 on 14 th May 2025. She essentially adopted her Supporting Affidavit sworn on 16 th August 2024 and underscored her assertion that she did not consent to the proposed Mode of Distribution appended to the petitioner’s application for Confirmation of Grant. She explained that she is illiterate and therefore could not have signed the consent in the manner suggested by the petitioner. She added that she ordinarily affixes her thumbprint to documents. She therefore maintained her stance that the Grant and the Certificate of Confirmation were fraudulently obtained by the petitioner.
[14] The objector called Simon Kipkorir Rotich (PW2) as her witness. He confirmed that the deceased was a village-mate and therefore the objector and the other members of the deceased’s family are well-known to him. He stated that Elizabeth Cheserem Rugut was the deceased’s third wife. He stated that he could not remember whether the deceased divided his land among his three wives, but added that it was within his knowledge that each of the wives had a share to cultivate.
[15] The petitioner, Mark Kipkemei Choge , testified as DW1 on 4 th March 2026. He adopted his Replying Affidavit and witness statement dated 9 th June 2025 as his evidence in chief. He testified that the deceased was his father and that they shared the estate according to what had been agreed by the family; and that the Grant was obtained and confirmed in the presence of all the beneficiaries. He acknowledged that his father was married to three wives and the objector is the third widow. He also conceded that both the 1 st and 2 nd houses received 40 acres each while the objector was apportioned 12 acres; adding that the objector did not object to that mode of distribution but expressed her approval by signing the consent.
[16] The respondent called his stepbrother, Hillary Kiptum Bett (DW2) as his witness to confirm that the objector sold a portion of the land given to her to a third party. DW2 testified that he is the son of the objector and was a witness to the land sale agreement in question. He also confirmed that his mother is illiterate and cannot read or write; and that she was allocated only 12 acres of the estate.
[17] Beatrice Cherono Samoei (DW3) is one of the deceased’s daughters in law. She adopted her witness statement dated 9 th June 2025 as her evidence in chief and reiterated that her husband Edward Samoei is deceased, and it was on that account that she and her co-wife Roselyn received 10 acres as inheritance on his behalf. She explained that the first and 2 nd house received 40 acres each which was shared within the respective houses.
[18] In her closing submissions dated 9 th March 2026, the objector proposed the following issues for determination:
[a] Whether the proceedings herein are testate or intestate;
[b] Who ranks in priority in the application for the grant of letters of administration between the objector and the Administrator?
[c] Whether the requirements of Section 76 of the Law of Succession Act have been met by the objector to warrant the revocation of the grant issued to the Administrator
[d] How should the estate herein be distributed?
[19] On the nature of the proceedings the applicant submitted that, although the petitioner alleged that the deceased left a Will, the proceedings are intestate as no such Will was presented to the Court. On who ranks in priority for purposes of a Petition for Grant of Letters of Administration, the applicant relied on Section 66 of the Law of Succession Act and urged the Court to find that, being the sole surviving spouse of the deceased, she ranks in priority to the petitioner and any of the other beneficiaries.
[20] On whether the requirements of Section 76 have been met to warrant the revocation of the grant issued to the Administrator, the objector urged the Court to find that she did not participate at all in the institution of these proceedings from inception; and that her signature was forged on the consent documents. Having denied that she attended court during confirmation of Grant, she therefore submitted that she has met the requirements of Section 76 of the Law of Succession Act to warrant the revocation of the grant.
[21] On how the estate should be distributed, the objector cited Section 40 of the Law of Succession Act and proposed that the estate be divided among the houses according to the number of children in each house, but also adding her as an additional unit to the number of children in the third house. He also made reference to case law in this regard.
[22] On his part, the petitioner relied on his written submissions dated 18 th March 2026. He proposed the following issues for determination:
[a] Whether the objector attended court during confirmation of grant on 27 th July 2015.
[b] Whether the estate of the deceased was distributed to the beneficiaries.
[c] Whether grant ought to be revoked.
[23] The petitioner submitted that, since he had demonstrated to the requisite standard that the objector and the other beneficiaries attended court during confirmation of Grant on 27 th July 2015, no justification had been shown for the revocation of the Grant or the Certificate of Confirmation. He also made reference to the typed and certified court proceedings, especially the proceedings of 27 th July 2015, to confirm that the objector was listed as the first beneficiary in attendance that day. The petitioner relied on the case Mburu Njoroge v Fredrick Mburu Njoroge [2014] KEHC 5108 (KLR) to buttress his case.
[24] The respondent submitted that on the basis of the approved Mode of Distribution appended to the Certificate of Confirmation of Grant, the estate had been distributed to the beneficiaries, taking into account the allocation made by the deceased before his demise. On whether the Grant ought to be revoked, the petitioner relied on In re estate of Prisca Ongayo Nande (deceased) [2020] КЕНС 6553 (KLR) and In re estate of Kiberenge Mukwa (deceased) [2021] K ЕНС 1392 (KLR) and submitted that the application before the court is not founded on any of the grounds set out in Section 76 of the Law of Succession Act.
[25] According to him, the application is not about a grant that has been obtained in the basis of a process that was defective, or tainted by fraud, misrepresentation and concealment of matter from court. He further contended that the objector did not allege any failure on his part as the administrator, in terms of failing to apply for confirmation of grant within the timelines given in law, or failing to diligently administer the estate, or to render the accounts. He also submitted that it is not contended that the Grant has become useless or inoperative on account of changed circumstances. He therefore posited that the application must fail.
[26] I have carefully considered the application, the grounds on which it was premised and the averments set out in the parties’ respective affidavits. I have similarly considered the testimonies of the witnesses and the written submissions filed by learned counsel on behalf of the parties. It is common ground that the objector is the only surviving widow of the deceased out of the three wives the deceased was married to in his lifetime. It is also not in dispute that the petitioner is one of the sons of the deceased and that he was appointed as the administrator of the estate of the deceased on 20 th March 2013; which Grant was confirmed and a Certificate of Confirmation issued on 1 st October 2015.
[27] Although the applicant raised the question for determination as to the exact nature of these proceedings, whether testate or intestate, at this stage of the proceedings, that is a non-issue. I say so because the proceedings speak for themselves. The Petition for Grant filed herein on 20 th March 2012 by the petitioner was in terms of Form P&A.80, and is a Petition for Grant of Letters of Administration Intestate. The petitioner declared therein that the deceased died intestate on 1 st August 1988. The matter proceeded as such up to the point of confirmation of Grant. Any suggestions that the deceased left a Will is foreign to the proceedings and is not within the ambit of this application.
[28] In the premises, the only issues for determination in respect of the Summons for Revocation of Grant dated 16 th August 2024 are:
[a] Whether sufficient cause has been shown by the objector for the revocation of the Grant of Letters of Administration Intestate issued to the petitioner, Mark Kipkemei Choge , on 20 th March 2013 and confirmed on 1 st October, 2015.
[b] What orders ought to issue.
A. On Revocation of Grant:
[29] The Summons before Court seeks annulment and/or revocation of grant. It is anchored on Section 76 of the Law of Succession Act which provides as follows:
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 has ordered or allowed; 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.
[30] The import of the above provision was commented on by Hon. Mativo, J . (as he then was) in Re Estate of Wahome Mwenje Ngonoro (Deceased) [2016] eKLR as follows:
“…A close look at Section 76 shows that the grounds can be divided into the following categories:- the propriety of the grant making process; mal-administration or where the grant has become inoperative due to subsequent circumstances…”
[31] In her Supporting Affidavit sworn on 16 th August 2024, the objector stated that the deceased herein had children with his three wives in his lifetime as follows: Elizabeth Tapsharga Rugut had seven (7) children (four sons and three daughters); Maria Tabutmoi Rugut had six children: (three sons and three daughters); and Elizabeth Cheserem Botkiptuwei with four children: (three daughters and one son). It was therefore her contention that, as the only surviving spouse, she ranks in priority to the petitioner.
[32] Needless to say that the matter of appointment of administrators is one in which the final discretion lies with the Court. Section 66 of the Law of Succession Act is explicit on this and on the order of priority. It provides that:
“When a deceased has died intestate, the court shall, save as otherwise expressly provided, have a final discretion as to the person or persons to whom a grant of letters of administration shall, in the best interests of all concerned, be made, but shall, without prejudice to that discretion, accept as a general guide the following order of preference-
(a) surviving spouse or spouses, with or without association of other beneficiaries;
(b) other beneficiaries entitled on intestacy, with priority according to their respective beneficial interests as provided by Part V;
(c) the Public Trustee; and
(d) creditors ”
[33] Clearly, as between the objector and the petitioner, the objector ranked higher in the order of preference for purposes of an application for Grant of Letters of Administration Intestate in respect of the estate of the deceased , Joseph Some Rugut. Nevertheless, Rule 66 provides that:
“Where a person who is not a person in the order of preference set out in section 66 of the Act seeks a grant of administration intestate he shall before the making of the grant furnish to the court such information as the court may require to enable it to exercise its discretion under that section and shall also satisfy the court that every person having a prior preference to a grant by virtue of that section has—
(a) renounced his right generally to apply for a grant; or
(b) consented in writing to the making of the grant to the applicant;
(c) been issued with a citation calling upon him either to renounce or to apply for a grant.
[34] In the same vein, Rule 26(2) of the Probate and Administration Rules provides that:
“An application for a grant where the applicant is entitled in a degree equal to or lower than that of any other person shall, in default of renunciation, or written consent in Form 38 or 39, by all persons so entitled in equality or priority, be supported by an affidavit of the applicant and such other evidence as the court may require.”
[35] In this instance, the petitioner filed a letter from the chief of Lolkeringet Location on 20 th March 2012 in which the beneficiaries of the deceased were listed as follows:
[a] Elizabeth Cheserem Rugut 54 years widow
[b] Patrice Kirwa Samoei 69 years son
[c] Mark Kipkemei Choge 62 years Son
[d] Rosaline Chepkorir Samoei 77 years Daughter in law
[e] Beatrice Cherono Samoei 53 years Daughter in law
[f] Prisilla Cheptarus Choge 59 years Daughter in law
[36] The chief further indicated that the family had agreed that the petitioner, Mark Kipkemei Choge , be appointed as the administrator.
[37] The petitioner also filed a consent to the making of Grant, Form P&A 38, confirming that those ranking in priority or of equal rank to him, including the applicant, Elizabeth Cheserem Rugut , had given their consent to his Petition for Grant of Letters of Administration Intestate. That document shows that the objector duly signed the consent document. It is also notable that in the Affidavit in Support of the Petition for Grant of Letters of Administration Intestate, Form P&A5, the names of the applicant and the five other beneficiaries were restated as the only surviving beneficiaries of the deceased.
[38] In the Certificate of Confirmation of that Grant issued herein on 1 st October 2015, the list of beneficiaries stated therein tallied with what was declared by the area chief and the petitioner in his Affidavit in Support of the Petition. For purposes of the Summons for Confirmation of Grant, the petitioner averred that all the six surviving beneficiaries had agreed on the Mode of Distribution and signed a Consent to that effect. The estate property, measuring 93 acres was to be distributed as follows:
[a] Elizabeth Cheserem Rugut 12 acres
[b] Patrice Kirwa Samoei 20 acres
[c] Mark Kipkemei Choge 20 acres
[d] Rosaline Chepkorir samoei 10 acres
[e] Beatrice Cherono Samoei 10 acres
[f] Prisilla Cheptarus Choge 20 acres
[39] All indications are therefore that the objector consented to the Mode of Distribution and appended her signature to the consent dated 19 th March 2014. It was on that basis that the Certificate of Confirmation was made. A perusal of the proceedings of the court also shows that the objector was present on 27 th July 2015 when the Summons for Confirmation came up for hearing and her name was listed as the first in the list of beneficiaries present. The proceedings for that day further show that the beneficiaries were all represented by Mr. Birech , Advocate , who informed the Court that all the beneficiaries had agreed to the proposed mode of distribution.
[40] If, as alleged by the objector, that her signature was forged, then it was upon her to prove that assertion to the requisite standard. In this regard, Section 107(1) of the Evidence Act, Cap 80, provides that:
Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist .
[41] Hence, in Antony Francis Wareham t/a AF Wareham & 2 others v Kenya Post Office Savings Bank (Civil Appeal 5 & 48 of 2002) [2004] KECA 166 (KLR) (2 July 2004) (Judgment) the Court of Appeal held:
“We have carefully considered the judgement of the superior court, the grounds of appeal raised against it and the submissions before us on those matters. Having done so we are impelled to state unequivocally that in our adversarial system of litigation, cases are tried and determined on the basis of the pleadings made and the issues of fact or law framed by the parties or the Court on the basis of those pleadings pursuant to the provisions of order XIV of the Civil Procedure Rules. And the burden of proof is on the plaintiff and the degree thereof is on a balance of probabilities. In discharging that burden, the only evidence to be adduced is evidence of existence or non existence of the facts in issue or facts relevant to the issue. It follows from those principles that only evidence of facts pleaded is to be admitted and if the evidence does not support the facts pleaded, the party with the burden of proof should fail…”
[42] This position was reiterated in Palace Investments Limited v Geoffrey Kariuki Mwenda & another [2015] eKLR, as follows:
“The burden of proof is placed upon the appellant and is to be discharged on a balance of probabilities. Denning J. in Miller –vs- Minister of Pensions [1947] 2 ALL ER 372 discussing the burden of proof had this to say: -
“That degree is well settled. It must carry a reasonable degree of probability, but not so high as is required in a criminal case. If the evidence is such that the tribunal can say: ‘We think it more probable than not’, the burden is discharged, but, if the probabilities are equal, it is not. Thus, proof on a balance or preponderance of probabilities means a win, however narrow. A draw is not enough. So, in any case in which the tribunal cannot decide one way or the other which evidence to accept, where both parties’ explanations are equally (un)convincing, the party bearing the burden of proof will lose, because the requisite standard will not have been attained.”
[43] Needless to add that where fraud is alleged, the standard of proof is the intermediate one. The essence of fraud, in legal parlance, is aptly captured in the definition proffered by Black's Law Dictionary , Tenth Edition, thus:
"Fraud consists of some deceitful practice or willful device, resorted to with intent to deprive another of his right, or in some manner to do him an injury. As distinguished from negligence, it is always positive, intentional. As applied to contracts, it is the cause of an error bearing on a material part of the contract, created or continued by artifice, with design to obtain some unjust advantage to the one party, or to cause an inconvenience or loss to the other. Fraud, in the sense of a court of equity, properly includes all acts, omissions, and concealments which involve a breach of legal or equitable duty, trust, or confidence justly reposed, and are injurious to another, or by which an undue and unconscientious advantage is taken of another."
[44] It is trite therefore that fraud, because of its very nature, must be strictly proved. In Central Bank of Kenya Ltd v Trust Bank Ltd & 4 Others NAI Civil Appeal No. 215 of 1996, the Court of Appeal held that:
"...Fraud and conspiracy to defraud are very serious allegations. The onus of prima facie proof was much heavier on the Appellant in this case than in an ordinary Civil Case..."
[45] Similarly, in Rosemary Wanjiku Murithi v George Maina Ndinwa [2014] eKLR , the Court of Appeal expressed the view that:
"…Proof of fraud involves questions of fact. Simply raising the issue of fraud in a statement of defence and counterclaim is not proof of fraud. The two courts below held that fraud had not been proved. The appellant has not illustrated any error or misdirection in law on the part of the learned Judge to show that fraud was indeed proved and the Judge erred in finding that it had not been proved."
[46] I find no such proof either in the objector’s Supporting Affidavit or in her viva voce evidence adduced herein. Indeed, at paragraph 7 of her Further Affidavit dated 17 th April 2025, the objector conceded that she was not opposed to the petitioner being retained as the administrator of the estate of the deceased. It is therefore my finding that no justification has been shown for revocation of the Grant of Letters of Administration Intestate issued herein to the petitioner.
[47] The second ground relied on by the objector was that the petitioner concealed information from the Court as to the exact number of beneficiaries. It is notable however that, although the objector averred that the deceased left more dependants than was declared by the petitioner, she did not supply the names of those additional dependants. She merely alleged at paragraph 3 of her Supporting Affidavit that the deceased had three wives and 17 children but failed to prove that assertion.
[48] The foregoing notwithstanding, it is manifest that although the objector is the surviving widow, she ended up with a smaller portion of the estate than the daughters in law of the deceased. No justification for this state of affairs was given by the petitioner other than the bare assertion that the objector consented to being given 12 acres. Section 40 of the Law of Succession Act provides that:-
“(1) Where an intestate has married more than once under any system of law permitting polygamy, his personal and household effects and the residue of the net intestate estate shall, in the first instance, be divided among the houses according to the number of children in each house, but also adding any wife surviving him as an additional unit to the number of children.
(2)The distribution of the personal and household effects and the residue of the net intestate estate within each house shall then be in accordance with the rules set
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