Introduction & Background
1. It is common ground that on 5 th October 2016, a Grant of Letters of Administration intestate was issued to the Petitioners in respect of the estate of the Deceased and that the same was confirmed through a Certificate of Confirmation of Grant issued on 19 th October 2016 (“the Grant”). The Objector has now filed the Summons dated 18 th June 2025 seeking to revoke and/or annul the Grant and that any properties transferred under that Grant be reverted to the Deceased's name.
2. The Summons is supported by the affidavits of the Objector sworn on 18 th June 2025, 4 th November 2025 and 7 th November 2025. It is opposed by the Petitioners through the affidavits of the 3 rd Petitioner sworn on 17 th September 2025. The Summons was canvassed by way of written submissions which are on record and together with the pleadings I will make relevant references to them in my analysis and determination below.
Analysis and Determination
3. From the parties’ submissions, the court is being called to determine the following:
a) Whether the Grant was obtained through fraud, concealment of material facts, or misrepresentation;
b) Whether the non-disclosure of the Objector and other beneficiaries renders the grant liable to revocation under Section 76
c) Whether the late Esther Ngenesi was a wife for purposes of succession
d) Whether the Objector has locus standi as a beneficiary to the estate of the Deceased
e) Whether delay defeats the Objector’s claim
f) Whether the Court is functus officio;
g) Whether the orders sought should issue.
Whether the Grant was obtained through fraud, concealment of material facts, or misrepresentation
4. The Objector, states that he is a son of the Deceased and that the Petitioners failed to disclose to the Chief and the court that the Deceased had three wives and that the entire first house, being the Deceased's first wife and her five children, including the Objector were deliberately excluded from the list of beneficiaries in these proceedings. The Objector alleges that the Chief, who issued the letter required for succession, is a clansman who knew the Deceased's family but fraudulently omitted the first house and that the Petitioners had full knowledge of the first house but chose to conceal this information to disinherit them from their rightful share of the estate. As such, the Objector claims that the rightful beneficiaries of the estate have been disinherited and that it is in the interest of justice to revoke the Grant so that all beneficiaries can receive their share.
5. In response, the Petitioners deny that the Objector is a son of the Deceased, stating his claim is unfounded and/or baseless and that the Objector has provided no evidence to back his claim. The Petitioners claim that Esther Ngenesi, Objector's mother, was not a wife of the Deceased, instead, they assert that she was a sister-in-law, having been married to the Deceased's brother, Mbai Masyuko, the Objector's alleged father. They cite a land dispute from 2003 where the adjudication office allocated Plot No. 382 to the Deceased and Plot No. 1599 to the Objector's mother on behalf of her late husband
6. The Petitioners maintain that the Deceased had only two legally married wives under Kamba customary law, that is; Beatrice Kavuli Ngonze and Rhoda Kaveni Ngonze and they emphasize that no dowry was paid for the Objector's mother. The Objector is accused of raising his claim 18 years after the Deceased's death on 3 rd March 2007 and that he never raised any claim during the Deceased's lifetime and was absent throughout the succession proceedings, only appearing now to challenge the Grant. The Petitioners state that the Objector has not annexed any cogent evidence to prove his relationship to the Deceased and they state that the Summons is based on mere speculations and hearsay. The Petitioners further contend that the court is functus officio because the Grant was confirmed long ago and that if the Objector is aggrieved, his only recourse is to file an appeal, not a revocation application.
7. In re Estate of Ngune Kibako (Deceased) [2022] KEHC 9799 (KLR) the court emphasized that section 51(2) (g) of the Law of Succession Act requires the petitioner for grant of letters of administration intestate to disclose all the surviving spouses and children of the deceased and that this provision is in mandatory terms. It is also not lost to me that under section 47 of the Law of Succession Act , this court is bestowed with jurisdiction to determine any dispute which comes before it in relation to an estate of the deceased and that under Rule 73 of the Probate and Administration Rules, the court has the inherent powers to make orders so as to make the ends of justice meet or to prevent abuse of the process of the court. Further, the law under Rule 26 (1) and (2) of the Rules provides as follows:
26. Grants of letters of administration
(1) Letters of administration shall not be granted to any applicant without notice to every other person entitled in the same degree as or in priority to the applicant.
(2) 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.
8. Rule 26 of the Rules also requires consent to be obtained when the person whose consent is sought is entitled to petition in the same degree or in priority to the petitioner (see Jane Njeri Nderi v Rachel Wangari Nderi [2020] KECA 682 (KLR) ].
9. From the above, it is thus clear that all beneficiaries must be disclosed and consent must be obtained from those entitled in the same degree. I have gone through the pleadings and evidence presented by the parties. In his supporting affidavit of 18 th June 2025, the Objector listed the family structure detailing the three houses of the Deceased:
1 st House : Esther Ngenesi (the Deceased’s 1 st wife) with children including; John Mutua Ngonze, Cephus Mungai Ngonze, Jonah Roy Mwangangi (the Objector) and Dorcas Mumo Ngonze.
2 nd House : Beatrice Kavuli (the Deceased’s 2 nd wife) with children including David Wambua Ngonze and Monica Ndulu Ngonze and others.
3 rd House : Rhoda Kaveni Ngonze (the Deceased’s 3 rd wife) with children including Kennedy Kaunda Ngonze (“the 4 th Petitioner) and Mark Kyalo Ngonze (the 2 nd Petitioner).
10. The Objector’s supplementary affidavit of 7 th November 2025 has official birth records from the National Registration Bureau ( JR 1-4 ) showing his and his siblings' paternity as being the Deceased. Also attached is the eulogy of Beatrice Kavuli Ngonze ( JR-9 ), the Deceased's second wife, who died in March 2023 that explicitly states that Beatrice was the “stepmother” of the Objector and his siblings. He further presented a letter from the Ward Clan Chairperson confirming three wives and listing the Objector as child in the first house( JR-7 ) and the eulogy of Esther Ngenesi confirming her marriage to the Deceased in 1938 and listing her children ( JR-10 ). The Petitioners contended that the Objector and his mother were not a son and spouse of the Deceased respectively. It should not be lost that certain aspects of succession disputes are subjected to the threshold of proof on a balance of probabilities and I find that the Objector’s case of whether he and his siblings were children of the Deceased is one such scenario which must substantially be tested within that scope (see In re Estate of Elijah Murkomen Kitum (Deceased) [2025] KEHC 2838 (KLR) ]
11. I find that it is more probable than not that the Objector and his siblings were children of the Deceased and that the Petitioners knew of this fact and chose to deliberately omit this information from the court while petitioning for the Grant. I am in agreement with the Objector’s submission that concealment of a whole house from the court constitutes a material non-disclosure warranting revocation and this concealment is a material and substantial non-disclosure, not a minor administrative error. The law is settled that such non-disclosure, whether deliberate or negligent, is sufficient ground for revocation (see Matheka & another v Matheka [2005] KECA 316 (KLR)]
Whether the non-disclosure of the Objector and other beneficiaries renders the Grant liable to revocation under Section 76
12. As submitted by the Objector, section 76 (b) of the Law of Succession Act provides that a grant may be revoked if it was "…obtained fraudulently by the making of a false statement or by the concealment from the court of something material to the case" My findings above lead me to conclude that the concealment of the Objector and his siblings as beneficiaries of estate and the failure by the Petitioners to obtain consents from them before petitioning the court for the Grant are sufficient grounds to revoke the Grant issued and confirmed. The non-disclosure by the Petitioners is the exact scenario that section 76 was designed to remedy. The Objector's evidence demonstrates the Petitioners knew of the 1 st house yet filed a petition listing only themselves as beneficiaries. Proceedings to obtain the Grant were defective in substance as material facts were concealed and it follows that the Grant issued and confirmed cannot stand as is.
Whether the late Esther Ngenesi was a wife for purposes of succession
13. The Petitioners submitted that the Objector failed to discharge the legal burden of proving a valid Kamba customary marriage under section 3(5) of the Law of Succession Act between the Deceased and the Objector’s mother, Esther Ngenesi. They contended that a customary marriage is a public, communal event requiring proof of negotiations, dowry ( ngasya ) payment and ceremonies but that the Objector provided no specifics regarding dowry, witnesses, or ceremony details. They state that the Clan letter relied upon by the Objector lacks authenticity, has vague authorship and lacks supporting sworn affidavits or appearance by clan members. That the Chief’s letter relied upon by the Objector dated 22nd September 2025 is bare, conclusory and fails to establish a nexus between the Objector's mother and the Deceased.
14. The Petitioners also submit that funeral programs, burial arrangements and eulogies are anecdotal references, not legal instruments capable of establishing marriage and that during her lifetime, Esther Ngenesi pursued a land dispute before the Land Adjudication Board regarding Plot Nos. 382 and 1599. Plot No. 1599 was awarded to her expressly as the wife of the late Mbai Masyuko, the Deceased's brother. They submit that claims made before statutory bodies carry legal weight and contradict the Objector's current claims.
15. On his part, the Objector submitted that the formal marital status of the Objector's mother is a moot point at the revocation stage and that the court's concern at the revocation stage is disclosure, not distribution. That even if paternity were disputed, the Petitioners had a legal obligation to disclose his existence so the court could determine the issue.
16. It is not lost to the court that the existence or otherwise of a marriage is a question of fact. Likewise, whether a marriage can be presumed is a question of fact. It is not dependent on any system of law except where by reason of a written law it is excluded (see TMG & another v AP [2022] KECA 612 (KLR) ]. This principle is directly applicable in this case as the question is not whether the Objector can produce a marriage certificate or a formal dowry receipt but whether the totality of facts supports the existence of a marriage. This shifts the analysis from a rigid checklist of formal requirements to a holistic examination of all available evidence.
17. The parameters of a marriage by presumption were set out by the Supreme Court in the case of MNK v POM; Initiative for Strategic Litigation in Africa (ISLA) (Amicus Curiae) (Petition 9 of 2021) [2023] KESC 2 (KLR) as follows:
a. The parties must have lived together for a long period of time.
b. The parties must have the legal right or capacity to marry.
c. The parties must have intended to marry.
d. There must be consent by both parties.
e. The parties must have held themselves out to the outside world as being a married couple.
f. The onus of proving the presumption is on the party who alleges it.
g. The evidence to rebut the presumption has to be strong, distinct, satisfactory and conclusive.
h. The standard of proof is on a balance of probabilities.
18. When the aforementioned parameters are applied to the evidence presented by the Objector, I find that his claim of his mother’s marriage to the Deceased is strongly supported. The Objector's mother was buried on the Deceased's land in Kilome and the Objector and his siblings were born, educated and brought up by the Deceased, who provided for them financially as a father would. The Objector's evidence shows a lengthy and enduring relationship and the fact that the Deceased built a home for his mother and raised her children on his land is powerful evidence of cohabitation and family life.
19. The Petitioners have not contested that the Deceased and the Objector’s mother had the legal capacity to marry under Kamba customary law, which permits polygamy and there is no evidence either party lacked capacity. Further and as stated, the burial programme for Esther Ngenesi eulogized her as a spouse of the Deceased and a co-wife to Rhoda and Beatrice. The eulogy of Beatrice Kavuli explicitly listed the Objector and his siblings as stepchildren. I find that the intention to marry is clearly demonstrated by the public and community recognition of Esther as a wife during her lifetime and after her death. The Deceased's participation in her burial and eulogy is strong evidence of his recognition of the marriage.
20. I also find that the adjudication records merely show a land dispute between relatives but they do not directly disprove the existence of a marital relationship. The fact that Esther was allocated land does not preclude the possibility she was also married to the Deceased. Furthermore, the Petitioners' own evidence, that is, the eulogy of Beatrice Kavuli and the numerous community acknowledgments is internally inconsistent with their claim that Esther was only a sister-in-law. I take the position that the Objector's evidence, when viewed as a whole, makes it more likely than not that Esther Ngenesi was married to the Deceased under Kamba customary law.
21. In any event, I am in agreement that the issue of marriage is ultimately a secondary question for the Objector in this case. The Objector is not claiming inheritance as a spouse, but as a child of the Deceased. The Petitioners have stated that Esther was not married to the Deceased, but even if that were true, it does not automatically disqualify the Objector from being a beneficiary. Section 3(2) of the Law of Succession Act defines "child" in relation to a male person as "…. any child whom he has expressly recognized or in fact accepted as a child of his own or for whom he has voluntarily assumed permanent responsibility." The Objector has provided substantial evidence that the Deceased recognized him as his son including the identity cards bearing the Deceased's name, his presence on the Deceased's land and the Deceased's provision of financial support. Even if the Petitioners are correct about the marriage, which I have found they are not, the Objector qualifies as a child of the Deceased under section 3(2) of the Law of Succession Act.
22. The upshot on this issue is that the Objector's evidence, viewed through the lens of the decision in MNK v POM(supra) , strongly supports the conclusion that Esther Ngenesi was married to the Deceased under Kamba customary law.
Whether the Objector has locus standi as a beneficiary to the estate of the Deceased
23. Section 76 of the Law of Succession Act allows an application for revocation by " any interested party ". The Court of Appeal in Matheka(supra) held that the definition of "any interested party" is wide enough to include a person who claims to be a beneficiary. The Objector, by alleging he is a son of the Deceased and providing documentary evidence of his paternity, has demonstrated a recognizable stake in the matter. The Objector did not need to conclusively prove his status as a beneficiary to challenge the Grant. He only needed to show he is an "interested party” for the purpose of bringing the Summons and since he has asserted that he is the son of the Deceased, I find that he had the requisite locus standi to file this Summons
Whether delay defeats the Objector’s claim
24. Section 76 of the Law of Succession Act explicitly states that a grant "… may at any time be revoked or annulled…” meaning there is no limitation in so far as matters revocation or annulment of grant are concerned (see In re Estate of Josph Muthini Kibwaa (Deceased) [2024] KEHC 12528 (KLR)]. Further, the principle that fraud vitiates all proceedings means there is generally no limitation period for challenging a grant obtained through fraudulent concealment. The Objector's explanation that he was unaware of the proceedings until 2025 is also a mitigating factor and his averment that he was never served or informed of the succession proceedings was not rebutted by the Petitioners. It follows therefore that any delay in this case does not defeat his claim.
Whether the Court is functus officio;
25. As stated, section 76 of the Law of Succession Act expressly grants the court jurisdiction to revoke a grant, whether confirmed or not, "at any time.” In re Estate of Kiberenge Mukwa (Deceased) [2021] KEHC 1392 (KLR) , the court(Kemei J.,) clarified that while the court may become functus officio on confirmation orders, it retains jurisdiction under section 76 to revoke a grant on grounds of fraud or concealment . The Petitioners' position on this point is legally unsustainable, as the law itself provides for this scenario.
Whether the orders sought should issue
26. Given the clear and material non-disclosure by the Petitioners, it follows that the Grant was obtained improperly. The interests of justice would be best served by revoking the Grant and allow the Objector’s Summons in its entirety.
Disposition
27. The Court now makes the following final orders:
1) The Grant of Letters of Administration Intestate issued to BEATRICE KAVULI NGONZE, MARKE KYALO NGONZE, WILFRED WAMBUA NGONZE AND KENNEDY KAUNDA NGONZE on 19 th October 2016 together with the Certificate of Confirmation of Grant issued on the same date, are hereby revoked, set aside and annulled
2) All properties comprised in the estate of the Deceased which were transmitted, transferred, or registered in the names of the Petitioners or any other person pursuant to the confirmed Grant, do hereby revert to the name of the Deceased, GRISHON NGONZE MASYUKO
3) BEATRICE KAVULI NGONZE, MARKE KYALO NGONZE, WILFRED WAMBUA NGONZE, KENNEDY KAUNDA NGONZE AND JONAH ROY NGONZE shall file a fresh Petition for Letters of Administration intestate in respect of the estate of the Deceased within Forty-Five (45) days from the date of this order. The fresh petition shall include all rightful beneficiaries of the Deceased's estate and the petitioners shall give notice of the fresh succession proceedings to all beneficiaries in accordance with the Law of Succession Act and the Probate and Administration Rules.
4) Pending the filing, hearing and determination of the fresh petition, an order of status quo ante is hereby issued in respect of the Deceased's estate that no party shall dispose of, transfer, charge, or in any manner alienate any property comprising the estate of the Deceased pending the hearing and determination of the fresh petition.
5) There shall be no order as to costs
DATED SIGNED AND DELIVERED virtually this 10 TH DAY OF SEPTEMBER
2026
............................................................................
J W W MONGARE
JUDGE
IN THE PRESENCE OF
1. Ms. Mule holding brief for Ms. Mutuku for the Petitioners
2. Ms. Kimani holding brief for Ms. Nzamsa for the Objector
3. Abdisalan- Court Assistant
2 | Page
1. It is common ground that on 5 th October 2016, a Grant of Letters of Administration intestate was issued to the Petitioners in respect of the estate of the Deceased and that the same was confirmed through a Certificate of Confirmation of Grant issued on 19 th October 2016 (“the Grant”). The Objector has now filed the Summons dated 18 th June 2025 seeking to revoke and/or annul the Grant and that any properties transferred under that Grant be reverted to the Deceased's name.
2. The Summons is supported by the affidavits of the Objector sworn on 18 th June 2025, 4 th November 2025 and 7 th November 2025. It is opposed by the Petitioners through the affidavits of the 3 rd Petitioner sworn on 17 th September 2025. The Summons was canvassed by way of written submissions which are on record and together with the pleadings I will make relevant references to them in my analysis and determination below.
Analysis and Determination
3. From the parties’ submissions, the court is being called to determine the following:
a) Whether the Grant was obtained through fraud, concealment of material facts, or misrepresentation;
b) Whether the non-disclosure of the Objector and other beneficiaries renders the grant liable to revocation under Section 76
c) Whether the late Esther Ngenesi was a wife for purposes of succession
d) Whether the Objector has locus standi as a beneficiary to the estate of the Deceased
e) Whether delay defeats the Objector’s claim
f) Whether the Court is functus officio;
g) Whether the orders sought should issue.
Whether the Grant was obtained through fraud, concealment of material facts, or misrepresentation
4. The Objector, states that he is a son of the Deceased and that the Petitioners failed to disclose to the Chief and the court that the Deceased had three wives and that the entire first house, being the Deceased's first wife and her five children, including the Objector were deliberately excluded from the list of beneficiaries in these proceedings. The Objector alleges that the Chief, who issued the letter required for succession, is a clansman who knew the Deceased's family but fraudulently omitted the first house and that the Petitioners had full knowledge of the first house but chose to conceal this information to disinherit them from their rightful share of the estate. As such, the Objector claims that the rightful beneficiaries of the estate have been disinherited and that it is in the interest of justice to revoke the Grant so that all beneficiaries can receive their share.
5. In response, the Petitioners deny that the Objector is a son of the Deceased, stating his claim is unfounded and/or baseless and that the Objector has provided no evidence to back his claim. The Petitioners claim that Esther Ngenesi, Objector's mother, was not a wife of the Deceased, instead, they assert that she was a sister-in-law, having been married to the Deceased's brother, Mbai Masyuko, the Objector's alleged father. They cite a land dispute from 2003 where the adjudication office allocated Plot No. 382 to the Deceased and Plot No. 1599 to the Objector's mother on behalf of her late husband
6. The Petitioners maintain that the Deceased had only two legally married wives under Kamba customary law, that is; Beatrice Kavuli Ngonze and Rhoda Kaveni Ngonze and they emphasize that no dowry was paid for the Objector's mother. The Objector is accused of raising his claim 18 years after the Deceased's death on 3 rd March 2007 and that he never raised any claim during the Deceased's lifetime and was absent throughout the succession proceedings, only appearing now to challenge the Grant. The Petitioners state that the Objector has not annexed any cogent evidence to prove his relationship to the Deceased and they state that the Summons is based on mere speculations and hearsay. The Petitioners further contend that the court is functus officio because the Grant was confirmed long ago and that if the Objector is aggrieved, his only recourse is to file an appeal, not a revocation application.
7. In re Estate of Ngune Kibako (Deceased) [2022] KEHC 9799 (KLR) the court emphasized that section 51(2) (g) of the Law of Succession Act requires the petitioner for grant of letters of administration intestate to disclose all the surviving spouses and children of the deceased and that this provision is in mandatory terms. It is also not lost to me that under section 47 of the Law of Succession Act , this court is bestowed with jurisdiction to determine any dispute which comes before it in relation to an estate of the deceased and that under Rule 73 of the Probate and Administration Rules, the court has the inherent powers to make orders so as to make the ends of justice meet or to prevent abuse of the process of the court. Further, the law under Rule 26 (1) and (2) of the Rules provides as follows:
26. Grants of letters of administration
(1) Letters of administration shall not be granted to any applicant without notice to every other person entitled in the same degree as or in priority to the applicant.
(2) 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.
8. Rule 26 of the Rules also requires consent to be obtained when the person whose consent is sought is entitled to petition in the same degree or in priority to the petitioner (see Jane Njeri Nderi v Rachel Wangari Nderi [2020] KECA 682 (KLR) ].
9. From the above, it is thus clear that all beneficiaries must be disclosed and consent must be obtained from those entitled in the same degree. I have gone through the pleadings and evidence presented by the parties. In his supporting affidavit of 18 th June 2025, the Objector listed the family structure detailing the three houses of the Deceased:
1 st House : Esther Ngenesi (the Deceased’s 1 st wife) with children including; John Mutua Ngonze, Cephus Mungai Ngonze, Jonah Roy Mwangangi (the Objector) and Dorcas Mumo Ngonze.
2 nd House : Beatrice Kavuli (the Deceased’s 2 nd wife) with children including David Wambua Ngonze and Monica Ndulu Ngonze and others.
3 rd House : Rhoda Kaveni Ngonze (the Deceased’s 3 rd wife) with children including Kennedy Kaunda Ngonze (“the 4 th Petitioner) and Mark Kyalo Ngonze (the 2 nd Petitioner).
10. The Objector’s supplementary affidavit of 7 th November 2025 has official birth records from the National Registration Bureau ( JR 1-4 ) showing his and his siblings' paternity as being the Deceased. Also attached is the eulogy of Beatrice Kavuli Ngonze ( JR-9 ), the Deceased's second wife, who died in March 2023 that explicitly states that Beatrice was the “stepmother” of the Objector and his siblings. He further presented a letter from the Ward Clan Chairperson confirming three wives and listing the Objector as child in the first house( JR-7 ) and the eulogy of Esther Ngenesi confirming her marriage to the Deceased in 1938 and listing her children ( JR-10 ). The Petitioners contended that the Objector and his mother were not a son and spouse of the Deceased respectively. It should not be lost that certain aspects of succession disputes are subjected to the threshold of proof on a balance of probabilities and I find that the Objector’s case of whether he and his siblings were children of the Deceased is one such scenario which must substantially be tested within that scope (see In re Estate of Elijah Murkomen Kitum (Deceased) [2025] KEHC 2838 (KLR) ]
11. I find that it is more probable than not that the Objector and his siblings were children of the Deceased and that the Petitioners knew of this fact and chose to deliberately omit this information from the court while petitioning for the Grant. I am in agreement with the Objector’s submission that concealment of a whole house from the court constitutes a material non-disclosure warranting revocation and this concealment is a material and substantial non-disclosure, not a minor administrative error. The law is settled that such non-disclosure, whether deliberate or negligent, is sufficient ground for revocation (see Matheka & another v Matheka [2005] KECA 316 (KLR)]
Whether the non-disclosure of the Objector and other beneficiaries renders the Grant liable to revocation under Section 76
12. As submitted by the Objector, section 76 (b) of the Law of Succession Act provides that a grant may be revoked if it was "…obtained fraudulently by the making of a false statement or by the concealment from the court of something material to the case" My findings above lead me to conclude that the concealment of the Objector and his siblings as beneficiaries of estate and the failure by the Petitioners to obtain consents from them before petitioning the court for the Grant are sufficient grounds to revoke the Grant issued and confirmed. The non-disclosure by the Petitioners is the exact scenario that section 76 was designed to remedy. The Objector's evidence demonstrates the Petitioners knew of the 1 st house yet filed a petition listing only themselves as beneficiaries. Proceedings to obtain the Grant were defective in substance as material facts were concealed and it follows that the Grant issued and confirmed cannot stand as is.
Whether the late Esther Ngenesi was a wife for purposes of succession
13. The Petitioners submitted that the Objector failed to discharge the legal burden of proving a valid Kamba customary marriage under section 3(5) of the Law of Succession Act between the Deceased and the Objector’s mother, Esther Ngenesi. They contended that a customary marriage is a public, communal event requiring proof of negotiations, dowry ( ngasya ) payment and ceremonies but that the Objector provided no specifics regarding dowry, witnesses, or ceremony details. They state that the Clan letter relied upon by the Objector lacks authenticity, has vague authorship and lacks supporting sworn affidavits or appearance by clan members. That the Chief’s letter relied upon by the Objector dated 22nd September 2025 is bare, conclusory and fails to establish a nexus between the Objector's mother and the Deceased.
14. The Petitioners also submit that funeral programs, burial arrangements and eulogies are anecdotal references, not legal instruments capable of establishing marriage and that during her lifetime, Esther Ngenesi pursued a land dispute before the Land Adjudication Board regarding Plot Nos. 382 and 1599. Plot No. 1599 was awarded to her expressly as the wife of the late Mbai Masyuko, the Deceased's brother. They submit that claims made before statutory bodies carry legal weight and contradict the Objector's current claims.
15. On his part, the Objector submitted that the formal marital status of the Objector's mother is a moot point at the revocation stage and that the court's concern at the revocation stage is disclosure, not distribution. That even if paternity were disputed, the Petitioners had a legal obligation to disclose his existence so the court could determine the issue.
16. It is not lost to the court that the existence or otherwise of a marriage is a question of fact. Likewise, whether a marriage can be presumed is a question of fact. It is not dependent on any system of law except where by reason of a written law it is excluded (see TMG & another v AP [2022] KECA 612 (KLR) ]. This principle is directly applicable in this case as the question is not whether the Objector can produce a marriage certificate or a formal dowry receipt but whether the totality of facts supports the existence of a marriage. This shifts the analysis from a rigid checklist of formal requirements to a holistic examination of all available evidence.
17. The parameters of a marriage by presumption were set out by the Supreme Court in the case of MNK v POM; Initiative for Strategic Litigation in Africa (ISLA) (Amicus Curiae) (Petition 9 of 2021) [2023] KESC 2 (KLR) as follows:
a. The parties must have lived together for a long period of time.
b. The parties must have the legal right or capacity to marry.
c. The parties must have intended to marry.
d. There must be consent by both parties.
e. The parties must have held themselves out to the outside world as being a married couple.
f. The onus of proving the presumption is on the party who alleges it.
g. The evidence to rebut the presumption has to be strong, distinct, satisfactory and conclusive.
h. The standard of proof is on a balance of probabilities.
18. When the aforementioned parameters are applied to the evidence presented by the Objector, I find that his claim of his mother’s marriage to the Deceased is strongly supported. The Objector's mother was buried on the Deceased's land in Kilome and the Objector and his siblings were born, educated and brought up by the Deceased, who provided for them financially as a father would. The Objector's evidence shows a lengthy and enduring relationship and the fact that the Deceased built a home for his mother and raised her children on his land is powerful evidence of cohabitation and family life.
19. The Petitioners have not contested that the Deceased and the Objector’s mother had the legal capacity to marry under Kamba customary law, which permits polygamy and there is no evidence either party lacked capacity. Further and as stated, the burial programme for Esther Ngenesi eulogized her as a spouse of the Deceased and a co-wife to Rhoda and Beatrice. The eulogy of Beatrice Kavuli explicitly listed the Objector and his siblings as stepchildren. I find that the intention to marry is clearly demonstrated by the public and community recognition of Esther as a wife during her lifetime and after her death. The Deceased's participation in her burial and eulogy is strong evidence of his recognition of the marriage.
20. I also find that the adjudication records merely show a land dispute between relatives but they do not directly disprove the existence of a marital relationship. The fact that Esther was allocated land does not preclude the possibility she was also married to the Deceased. Furthermore, the Petitioners' own evidence, that is, the eulogy of Beatrice Kavuli and the numerous community acknowledgments is internally inconsistent with their claim that Esther was only a sister-in-law. I take the position that the Objector's evidence, when viewed as a whole, makes it more likely than not that Esther Ngenesi was married to the Deceased under Kamba customary law.
21. In any event, I am in agreement that the issue of marriage is ultimately a secondary question for the Objector in this case. The Objector is not claiming inheritance as a spouse, but as a child of the Deceased. The Petitioners have stated that Esther was not married to the Deceased, but even if that were true, it does not automatically disqualify the Objector from being a beneficiary. Section 3(2) of the Law of Succession Act defines "child" in relation to a male person as "…. any child whom he has expressly recognized or in fact accepted as a child of his own or for whom he has voluntarily assumed permanent responsibility." The Objector has provided substantial evidence that the Deceased recognized him as his son including the identity cards bearing the Deceased's name, his presence on the Deceased's land and the Deceased's provision of financial support. Even if the Petitioners are correct about the marriage, which I have found they are not, the Objector qualifies as a child of the Deceased under section 3(2) of the Law of Succession Act.
22. The upshot on this issue is that the Objector's evidence, viewed through the lens of the decision in MNK v POM(supra) , strongly supports the conclusion that Esther Ngenesi was married to the Deceased under Kamba customary law.
Whether the Objector has locus standi as a beneficiary to the estate of the Deceased
23. Section 76 of the Law of Succession Act allows an application for revocation by " any interested party ". The Court of Appeal in Matheka(supra) held that the definition of "any interested party" is wide enough to include a person who claims to be a beneficiary. The Objector, by alleging he is a son of the Deceased and providing documentary evidence of his paternity, has demonstrated a recognizable stake in the matter. The Objector did not need to conclusively prove his status as a beneficiary to challenge the Grant. He only needed to show he is an "interested party” for the purpose of bringing the Summons and since he has asserted that he is the son of the Deceased, I find that he had the requisite locus standi to file this Summons
Whether delay defeats the Objector’s claim
24. Section 76 of the Law of Succession Act explicitly states that a grant "… may at any time be revoked or annulled…” meaning there is no limitation in so far as matters revocation or annulment of grant are concerned (see In re Estate of Josph Muthini Kibwaa (Deceased) [2024] KEHC 12528 (KLR)]. Further, the principle that fraud vitiates all proceedings means there is generally no limitation period for challenging a grant obtained through fraudulent concealment. The Objector's explanation that he was unaware of the proceedings until 2025 is also a mitigating factor and his averment that he was never served or informed of the succession proceedings was not rebutted by the Petitioners. It follows therefore that any delay in this case does not defeat his claim.
Whether the Court is functus officio;
25. As stated, section 76 of the Law of Succession Act expressly grants the court jurisdiction to revoke a grant, whether confirmed or not, "at any time.” In re Estate of Kiberenge Mukwa (Deceased) [2021] KEHC 1392 (KLR) , the court(Kemei J.,) clarified that while the court may become functus officio on confirmation orders, it retains jurisdiction under section 76 to revoke a grant on grounds of fraud or concealment . The Petitioners' position on this point is legally unsustainable, as the law itself provides for this scenario.
Whether the orders sought should issue
26. Given the clear and material non-disclosure by the Petitioners, it follows that the Grant was obtained improperly. The interests of justice would be best served by revoking the Grant and allow the Objector’s Summons in its entirety.
Disposition
27. The Court now makes the following final orders:
1) The Grant of Letters of Administration Intestate issued to BEATRICE KAVULI NGONZE, MARKE KYALO NGONZE, WILFRED WAMBUA NGONZE AND KENNEDY KAUNDA NGONZE on 19 th October 2016 together with the Certificate of Confirmation of Grant issued on the same date, are hereby revoked, set aside and annulled
2) All properties comprised in the estate of the Deceased which were transmitted, transferred, or registered in the names of the Petitioners or any other person pursuant to the confirmed Grant, do hereby revert to the name of the Deceased, GRISHON NGONZE MASYUKO
3) BEATRICE KAVULI NGONZE, MARKE KYALO NGONZE, WILFRED WAMBUA NGONZE, KENNEDY KAUNDA NGONZE AND JONAH ROY NGONZE shall file a fresh Petition for Letters of Administration intestate in respect of the estate of the Deceased within Forty-Five (45) days from the date of this order. The fresh petition shall include all rightful beneficiaries of the Deceased's estate and the petitioners shall give notice of the fresh succession proceedings to all beneficiaries in accordance with the Law of Succession Act and the Probate and Administration Rules.
4) Pending the filing, hearing and determination of the fresh petition, an order of status quo ante is hereby issued in respect of the Deceased's estate that no party shall dispose of, transfer, charge, or in any manner alienate any property comprising the estate of the Deceased pending the hearing and determination of the fresh petition.
5) There shall be no order as to costs
DATED SIGNED AND DELIVERED virtually this 10 TH DAY OF SEPTEMBER
2026
............................................................................
J W W MONGARE
JUDGE
IN THE PRESENCE OF
1. Ms. Mule holding brief for Ms. Mutuku for the Petitioners
2. Ms. Kimani holding brief for Ms. Nzamsa for the Objector
3. Abdisalan- Court Assistant
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