1. The 1st Petitioner/Administrator filed the instant succession cause on 14th August 2024. Although the cause is presented as having been filed on behalf of Zipporah Achieng Otieno and Siobhan Anita McIntosh, the latter did not sign the petition or the affidavit in support thereof. The supporting affidavit, although prepared by the firm of JK Mwarandu & Co, Advocates, was commissioned by Mr Joseph Karisa Mwarandu, the proprietor of the said firm.
2. The petition was gazetted on 8th April 2025. No objection was made in respect of the said petition. There being no objection within the 30-day period provided in the Rules, the court issued a grant of letters of administration intestate to Zipporah Achieng Otieno (hereafter “Zipporah”) and Ms Siobhan Anita McIntosh (hereafter “Siobhan”), both, allegedly, of P. O. Box 1279 – 80100 Mombasa. It must be stated that Siobhan filed an objection on 8th December 2024, which this court did not consider, as it was filed prematurely.
3. It is common ground that the deceased had 2 children, by different mothers, namely Siobhan Anita Mcintosh and Camara Malik Mugalitsi, whose mother, Jackline Madete Mugalitsi, was previously in a romantic relationship with the deceased.
4. By vide summons dated 27th October 2025, Siobhan seeks to have the grant revoked and a new one issued to her and Ms Jackline Mugalitsi. It is contended that Zipporah wasn’t the deceased’s wife and that the proceedings resulting in the grant’s issuance are defective. On her part, Jackline Mugalitsi filed a summons dated 22nd January 2026 seeking to revoke the grant issued to the 1st petitioner on grounds similar to those raised by Siobhan.
5. In response, Ms Zipporah insisted that she was the deceased's wife and that they had contracted a Luhya customary law marriage. She accused the 2 objectors of malice. Although she conceded that Camara Malik Mugalitsi was the deceased's son, she prevaricated as to whether Siobhan was the deceased's daughter and took no firm stand. That, notwithstanding the fact that she filed this petition and indicated that Siobhan was a co-petitioner, is quite telling.
6. I have considered the matter. The same, in my view, is straightforward. The petition filed lacks Siobhan's signature. That, in my view, is an incurable defect. If it were true that Siobhan refused to sign the right thing, the petitioner should have filed a citation for her to take or refuse the grant. She did no such thing. Further, Mr Mwarandu, having prepared the affidavit, could not purport to commission it.
7. Section 76 of the Law of Succession Act states that:
“A grant of representation, whether or not confirmed, may at any time be revoked or annulled if the court decides, either on application by any interested party or of its own motion—
(a)that the proceedings to obtain the grant were defective in substance;
(b)that the grant was obtained fraudulently by the making of a false statement or by the concealment from the court of something material to the case;
(c)that the grant was obtained by means of an untrue allegation of a fact essential in point of law to justify the grant notwithstanding that the allegation was made in ignorance or inadvertently;
(d)that the person to whom the grant was made has failed, after due notice and without reasonable cause either-
(i)to apply for confirmation of the grant within one year from the date thereof, or such longer period as the court order or allow; or
(ii)to proceed diligently with the administration of the estate; or
(iii)to produce to the court, within the time prescribed, any such inventory or account of administration as is required by the provisions of paragraphs (e) and (g) of section 83 or has produced any such inventory or account which is false in any material particular; or
(e)that the grant has become useless and inoperative through subsequent circumstances.”
8. In the case of In re Estate of Prisca Ong’ayo Nande (Deceased) [2020] KEHC 6553 (KLR), the court stated that:
“8. Under section 76, a court may revoke a grant so long as the grounds listed above are disclosed, either on its own motion or on the application of a party. A grant of letters of administration may be revoked on three general grounds. The first is where the process of obtaining the grant was attended by problems. The first would be where the process was defective, either because some mandatory procedural step was omitted, or the persons applying for representation was not competent or suitable for appointment, or the deceased died testate having made a valid will and then a grant or letters of administration intestate was made instead of a grant of probate, or vice versa. It could also be that the process was marred by fraud and misrepresentation or concealment of matter, such as where some survivors are not disclosed or the applicant lies that he is a survivor when he is not, among other reasons. The second general ground is where the grant was obtained procedurally, but the administrator, thereafter, got into problems with the exercise of administration, such as where he fails to apply for confirmation of grant within the time allowed, or he fails to proceed diligently with administration, or fails to render accounts as and when required. The third general ground is where the grant has become useless and inoperative following subsequent circumstances, such as where a sole administrator dies leaving behind no administrator to carry on the exercise, or where the sole administrator loses the soundness of his mind for whatever reason or even becomes physically infirm to an extent of being unable to carry out his duties as administrator, or the sole administrator is adjudged bankrupt and, therefore, becomes unqualified to hold any office of trust.”
9. I am satisfied that in this case the proceedings leading to the issuance of the grant were incurably defective to such an extent that the grant must be revoked.
10. Having decided as above, what must happen next? The estate of the deceased consists of a property that is rented out to residential tenants. It cannot remain unmanaged; there must be administrators to collect, bank and account for the receivables. This court is unable to tell whether Zipporah was the wife of the deceased. There are inconclusive indications that she could have been. These are in the form of photographs, her attendance at and role in the deceased’s cremation, and the chief's letter. In my view, her status is an issue that can be resolved during the estate's distribution stage. For now, to preserve the status quo, and so that there can be progress, I will presume, subject to further enquiry in future, that she is.
11. In the circumstances, and with a view to achieving resolution in this knotted matter, I revoke the grant issued on 1st July 2025 to Siobhan and Zipporah for having been obtained pursuant to very defective proceedings. In its place, I issue a new grant to Siobhan Anita McIntosh, Jackline Madete Mugalitsi and Zipporah Achieng Otieno. I order and direct that the summons for confirmation of the grant be filed within 60 days of the date hereof.
12. I must warn the parties that if they are unable to agree, the court reserves the right to revoke the grant hereby issued and to issue a new one to the Public Trustee.
13. Given the nature of the matter, the parties will bear their own costs.
14. It is so ordered.
Dated and signed at Nairobi this 18th day of June 2026.
2. The petition was gazetted on 8th April 2025. No objection was made in respect of the said petition. There being no objection within the 30-day period provided in the Rules, the court issued a grant of letters of administration intestate to Zipporah Achieng Otieno (hereafter “Zipporah”) and Ms Siobhan Anita McIntosh (hereafter “Siobhan”), both, allegedly, of P. O. Box 1279 – 80100 Mombasa. It must be stated that Siobhan filed an objection on 8th December 2024, which this court did not consider, as it was filed prematurely.
3. It is common ground that the deceased had 2 children, by different mothers, namely Siobhan Anita Mcintosh and Camara Malik Mugalitsi, whose mother, Jackline Madete Mugalitsi, was previously in a romantic relationship with the deceased.
4. By vide summons dated 27th October 2025, Siobhan seeks to have the grant revoked and a new one issued to her and Ms Jackline Mugalitsi. It is contended that Zipporah wasn’t the deceased’s wife and that the proceedings resulting in the grant’s issuance are defective. On her part, Jackline Mugalitsi filed a summons dated 22nd January 2026 seeking to revoke the grant issued to the 1st petitioner on grounds similar to those raised by Siobhan.
5. In response, Ms Zipporah insisted that she was the deceased's wife and that they had contracted a Luhya customary law marriage. She accused the 2 objectors of malice. Although she conceded that Camara Malik Mugalitsi was the deceased's son, she prevaricated as to whether Siobhan was the deceased's daughter and took no firm stand. That, notwithstanding the fact that she filed this petition and indicated that Siobhan was a co-petitioner, is quite telling.
6. I have considered the matter. The same, in my view, is straightforward. The petition filed lacks Siobhan's signature. That, in my view, is an incurable defect. If it were true that Siobhan refused to sign the right thing, the petitioner should have filed a citation for her to take or refuse the grant. She did no such thing. Further, Mr Mwarandu, having prepared the affidavit, could not purport to commission it.
7. Section 76 of the Law of Succession Act states that:
“A grant of representation, whether or not confirmed, may at any time be revoked or annulled if the court decides, either on application by any interested party or of its own motion—
(a)that the proceedings to obtain the grant were defective in substance;
(b)that the grant was obtained fraudulently by the making of a false statement or by the concealment from the court of something material to the case;
(c)that the grant was obtained by means of an untrue allegation of a fact essential in point of law to justify the grant notwithstanding that the allegation was made in ignorance or inadvertently;
(d)that the person to whom the grant was made has failed, after due notice and without reasonable cause either-
(i)to apply for confirmation of the grant within one year from the date thereof, or such longer period as the court order or allow; or
(ii)to proceed diligently with the administration of the estate; or
(iii)to produce to the court, within the time prescribed, any such inventory or account of administration as is required by the provisions of paragraphs (e) and (g) of section 83 or has produced any such inventory or account which is false in any material particular; or
(e)that the grant has become useless and inoperative through subsequent circumstances.”
8. In the case of In re Estate of Prisca Ong’ayo Nande (Deceased) [2020] KEHC 6553 (KLR), the court stated that:
“8. Under section 76, a court may revoke a grant so long as the grounds listed above are disclosed, either on its own motion or on the application of a party. A grant of letters of administration may be revoked on three general grounds. The first is where the process of obtaining the grant was attended by problems. The first would be where the process was defective, either because some mandatory procedural step was omitted, or the persons applying for representation was not competent or suitable for appointment, or the deceased died testate having made a valid will and then a grant or letters of administration intestate was made instead of a grant of probate, or vice versa. It could also be that the process was marred by fraud and misrepresentation or concealment of matter, such as where some survivors are not disclosed or the applicant lies that he is a survivor when he is not, among other reasons. The second general ground is where the grant was obtained procedurally, but the administrator, thereafter, got into problems with the exercise of administration, such as where he fails to apply for confirmation of grant within the time allowed, or he fails to proceed diligently with administration, or fails to render accounts as and when required. The third general ground is where the grant has become useless and inoperative following subsequent circumstances, such as where a sole administrator dies leaving behind no administrator to carry on the exercise, or where the sole administrator loses the soundness of his mind for whatever reason or even becomes physically infirm to an extent of being unable to carry out his duties as administrator, or the sole administrator is adjudged bankrupt and, therefore, becomes unqualified to hold any office of trust.”
9. I am satisfied that in this case the proceedings leading to the issuance of the grant were incurably defective to such an extent that the grant must be revoked.
10. Having decided as above, what must happen next? The estate of the deceased consists of a property that is rented out to residential tenants. It cannot remain unmanaged; there must be administrators to collect, bank and account for the receivables. This court is unable to tell whether Zipporah was the wife of the deceased. There are inconclusive indications that she could have been. These are in the form of photographs, her attendance at and role in the deceased’s cremation, and the chief's letter. In my view, her status is an issue that can be resolved during the estate's distribution stage. For now, to preserve the status quo, and so that there can be progress, I will presume, subject to further enquiry in future, that she is.
11. In the circumstances, and with a view to achieving resolution in this knotted matter, I revoke the grant issued on 1st July 2025 to Siobhan and Zipporah for having been obtained pursuant to very defective proceedings. In its place, I issue a new grant to Siobhan Anita McIntosh, Jackline Madete Mugalitsi and Zipporah Achieng Otieno. I order and direct that the summons for confirmation of the grant be filed within 60 days of the date hereof.
12. I must warn the parties that if they are unable to agree, the court reserves the right to revoke the grant hereby issued and to issue a new one to the Public Trustee.
13. Given the nature of the matter, the parties will bear their own costs.
14. It is so ordered.
Dated and signed at Nairobi this 18th day of June 2026.