'1.The instant matter herein arises from a dispute over estate of Sebastian Mongare between the 1st house and the alleged 2nd house .
2.The genesis of the same being that upon demise of the deceased the petitioners herein lodged succession in exclusion of the alleged second house.
3.Thus application for revocation of grant dated 30.05.2023 seeking annulment of grant issued on 13.3.15 and confirmed on 22.02.2021.
4.The application seeks the following orders :
a. Spent
b. Spent
c. Spent
d. The Honourable court be pleased to annul and revoke the grant dated 13th day of march 2015 issued to the petitioners for being obtained through forgery and fraud on an existing title in the name of the 1st objector
e. The Honourable court be pleased to order and declare all transactions of subdivisions , transfer effected on parcel of land WEST KITUTU/ MWAGICHANA 2970 upon the confirmation of grant confirmed on 22nd February 2021as fraudulent and forgery and be revoked
f. The petitioners be condemned to bear the cost of this application and proceedings.
5.This application was premised on the grounds that;
a. The 1st objector’s case is that she is the second wife of the deceased who died on 23rd July 2012. Before the demise of the deceased , in the year 2000 w he subdivided his estate to his two wives , Mercella Mongare (deceased and Elimelda Kerubo Mongare) .
b. The estate of the 1st wife was held by Walter Moseti Mongare the elder and 1st son of the 1st wife in trust for his siblings .
c. The petitioners are daughters of the 1st house of the deceased whose estate on behalf their brother Walter Moseti Mongare is holding title number WEST KITUTU /MWAGICHANA 2971 which represents 60% of the parcel of land WEST GITUTU / MWAGICHANA /2541 as originally held by the deceased.
d. The petitioners are not entitled to any land from parcel no WEST KITUTU/MWAGICHANA/ 2970 as it belongs to the 1st objector and her family.
e. The petitioners have unlawfully subdivided title and obtained subdivided title and have commenced to evict the objectors from the land.
f. It is fair and just to grant the orders sought based on the cited grounds.
6. The application is also based on the supporting affidavit of Elimelda Kerubo Mongare the 1st objector herein and the 2nd objector who is her 1st son was omitted therefore aggrieved by the entire grant obtained , the petitioners are children of her co -wife ,and that the deceased herein was the owner of the land parcel WEST KITUTU/MWAGICHANA/2541 which was subsequently subdivided respectively for his two wives The title remained in the name of the deceased to hold in trust for his 2nd wife. The annexed documents included a copy of the court proceedings of a criminal case against them , a copy of the ruling of the criminal case ,a copy of the filed succession cause and the dismissal ,a copy of the grant and the confirmed grant , a copy of transfer document , a copy of application for consent obtained , a copy of the title and a search for the land parcel , a copy of the eviction notice bundle of letters from the area chief and that the evidence provided are true to the best of her knowledge.
7. The objectors/ applicants called 4 witnesses in support of their case . PW1 the 1st objector herein stated that she is a widow to deceased having been married on was not involved in the filing of the succession cause and produced documents as evidence .During cross examination she reiterated that she was married in the year 2003 with three children at that time and that she lived with the deceased on land parcel in question and that during the lifetime of the deceased she was the one cultivating the land and there was a shop on that land.
8. Pw1 the 1st objector herein stated that Land parcel West Kitutu/ Mwagichana /2970 is not available for distribution as the husband had transferred it to her during his lifetime. She said that the fist house was given land parcel number 2971 through Moseti who is the only on in that house . He said that respondents deliberately excluded her and her children from the succession cause. PW2 Boaz Getungi Mongare is a son to PW1 and the 2nd objector herein. He supported the evidence of PW1 in all the material aspects. PW3 the chief of Mwagichana location stated that he knew the deceased well and he said that pw1 was the 2nd wife to deceased . he said he one mediated on a land dispute between the two houses . PW4 , the village elder stated pw1 was thew 2nd wife to deceased and that he was a witness to deceased sharing our his land between the two houses
Respondents case
9.The respondents on the other hand called 3 witnesses. DW1 Everyn Kemuma Mongare stated that the deceased was her father and that she is the last born in the 1st house . She said the objector was married to One Lawrence Momanyi Omwenga in Omogochoncho village . She said that the 1st objector participated in her father’s funeral but was not recognised as a wife . She said that the 1st objector was recognized as the 2nd wife before the Chief and the elders after the funeral following a dispute and that they agreed to recognise her as the 2nd wife of deceased. . On cross examination , she admitted that in her replying affidavit herein she recognized the 1st objector as a wife and that the estate was to be shared between the two houses they are 8 siblings but the others are not in the chief’s letter because they are married and are not interested in the land .She stated that they filed for the succession cause and the grant was issued. She also claimed that they informed the second house of the date for confirmation of grant confirmation but only herself Everlyne , Water Mongare and Elmelda turned up . He said the others did not attend court despite notice . He said the court did not ask them where the other beneficiaries were . She also denied that they were not fit to be administrators. She said they conducted a search before filling the succession and it showed that the land belonged to their father hence subject to succession.
10. DW2 Gladys Monyangi Nyabuto the 1st petitioner herein testified that she and Everlyne (Dw2) are the administrators of the estate of the deceased . She denied that Elmelda was her father’s wife as deceased was monogamous .She said that Elmelda was just a maid who took care of their father while he was ailing and that they included her in the succession cause as they had no money to pay her money salary of Kshs.1500/= per month which had accumulated to over Kshs 100,000/=. She contended that she does not know of the title deed in the name of the Elmelda and that she consented to the filing of the succession cause and confirmation of grant. She admitted that the grant did not indicate the share of Elmelda and said that they had given her a place to stay. She testified that that the land no 2970 belonged to their father and it was subject to succession. She claim that the 1st objector herein fraudulently obtained the title since the land was still in their father’s name at the time of his death and that he never transferred the land to anyone .
11. The objectors in their submissions stated that deceased had two wives and that the petitioners without any reason concealed the material facts to some of the siblings by deliberately refusing to name some of the beneficiaries that in the year 2000 deceased had subdivided his land into two portion and transferred parcel no 2971 to the 1st son to hold in trust for himself and his other siblings in the 1st house and retained the remaining forty percent for his second house. Also that the deceased in his lifetime signed transfer forms in favour of Emelda and she had the transfer completed upon the demise of deceased. .They relied on section 29 on the issue of dependency and section 76 on the grounds for revocation of grant . They sought that the grant issued to the respondents herein be revoked and annulled and that the land registrar to annul all entries in the title.
12. The respondents submitted stated that their father had given their elder brother land for himself since he had his own family and the remaining land in the name of deceased was held in trust for the unmarried daughters at that time. They further contended that the 2nd house was aware of the succession proceedings and participated in them and thus the grant was issued and confirmed procedurally.
13. The objectors sought revocation of grant under Section 76 of the Law of Succession Act. Cap 160, Laws of Kenya. The said Provision states 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 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.”
Issues for determination.
14. I have carefully considered the objectors’ case and the respondents’ case .The issues arising for determination are as follows ;
a. Whether the first objector is a widow of the deceased and if yes ,
b. Whether the children of the 1st objector were dependants of the deceased
c. Whether land parcel no West Kitutu/Mwagichana/2970 is available for distribution
d. Whether there is sufficient evidence to warrant revocation of grant under Section 76 of the law of Succession Act.
15. 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.
16 .Rule 26 of Probate and Administration Rules prescribes that 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.
17. In the case of Re Estate of Geoffrey Mwaura Ngoima (Deceased) Succession Cause No. 130 of 2005 eKLR where the court in revoking a grant Held that:
“The Law of Succession Act does not put a timeline within which a person can file an application for revocation of grant. The objector in the matter sought revocation of the grant and nullification of title in respect of the original parcel of land. Musyoka, J. In this regard expounded as to when a matter is best placed for a succession cause and when it ought to be referred to Another Court with concurrent jurisdiction in In Re Estate of Alice Mumbua Mutua (Deceased) [2017] eKLR as follows: “…..The Law of Succession Act, and the Rules made thereunder, are designed in such a way that they confer jurisdiction to the Probate court with respect to determining the assets of the deceased, the survivors of the deceased and the persons with beneficial Interest, and finally distribution of the assets amongst the survivors and the persons beneficially interested. The function of the Probate court in the circumstances would be to facilitate collection and preservation of the estate, identification of survivors and Beneficiaries, and distribution of the assets. Disputes of course do arise in the process. The provisions of the Law of Succession Act and the Probate and Administration Rules are tailored for resolution of disputes between the personal representatives of the deceased and the survivors, beneficiaries And dependants. However, claims by and against third parties, meaning persons who a neither survivors of the deceased nor Beneficiaries, are for resolution outside of the framework set out in the Law of Succession Act and the Probate and Administration Rules. Such have to be resolved through the structures created by the Civil Procedure Act and Rules, which have Elaborate rules on suits by and against executors and administrators.’’
18. Section 29 of the Act provides that;
A Dependant is -
The wife or wives and children of the deceased, regardless of whether they were maintained by the deceased immediately prior to their death.
The deceased''s parents, step-parents, grandparents, grandchildren, step-children, children taken into the family as their own brothers, sisters, and half-brothers/half-sisters, provided they were being maintained by the deceased immediately before their death.
19. On whether deceased is a widow to the deceased, she said she is a widow to the deceased and this is supported by Pw2, Pw3 the area chief and Pw4 the village elder , the issue of marriage is denied by the respondents, their brother (Dw3) and Mateno Omwenga (Dw4)who is their neighbour . Dw4 said that the respondents are the ones who told him the Elemelda was a maid and that he saw her living with deceased . Though the respondents say that Elmelda was a maid to the deceased they referred to the 1st house and second house in their testimonies . The theory that Elemelda was recognised as a wife as she was owed salary arrears does not hold any water. There is overwhelming evidence that deceased was survived by the 1st objector who wa his 2nd wife .
20 .On whether the children of Emelda are entitled to inherit the property of deceased , It has emerged that deceased married 1st objector with children including the 2nd objector and that he took them as his own . The respondents case is that she was married with the children while the objectors argued that deceased took care of the said children .It is trite law that once one takes care of children as his own then he cannot stop maintaining them on the ground that they are not his biological children . In Section 29 of the law of succession Act recognizes the ‘’ step-children, children taken into the family as their own’’ as dependants . It then follows that such children are also entitled to inherit the estate of such a deceased who was maintaining them in his left time. It has emerged from the chief’s introduction letter dated 30.9.13 and the evidence that Moseti Mongare the first son of the deceased was provided for by deceased gifting him land parcel no. West Kitutu /Mwagichana/2971 by him in his life time as a representative of the 1st house but the respondents also provided for him in the confirmed grant dated 21. 2.21 ..
21. On whether land parcel West Kitutu/Mwagichana /2970 was available for distribution to both the 1st and second house, 1st objector said it was not available as the same was held in trust by deceased on her behalf at the time he was sharing his property . Also that deceased signed transfer forms in her favour and obtained consent to transfer from the Land Control Board . She said she managed to have the land transferred to her name on 15.7.14 which is 2 years down the line .
22. This court invoked the provisions of rule 73 of probate and administration rules and called for additional evidence from Kisii county land registrar to produce green card of the said land parcel No. West Kitutu/Mwagichana /2970 together with the current official search. The land registrar DW5 informed this court that the copy of green card indicated that the land was still registered in the deceased name and that no transfer entry was made into the register. Also that transfer and consent documents are not in the records held by the land registrar as per the evidence of the land registrar. It is clear that the alleged transfer of the land to 1st objector I was fraudulent . I find that the registration of title deed no, West Kitutu/Mwagichana /2970 in the name of Emelda was obtained fraudulently .
23. On whether the grant was obtained fraudulently obtained The 1st and 2nd objectors were provided for in the grant but they say they were not heard in the said cause and were not aware of it’s existence . The respondents said that Emelda was in court during confirmation They admitted that the 2nd objector a son to deceased , a daughter to deceased and other beneficiaries as per the chief’s letter was also were not in court during confirmation and they justified it by saying that the court did not ask about them . Further that Boaz and did not attend despite being notified . Rule 26 of Probate and administration Rules provides that ;
1) Letters of administration shall not be granted to any applicant without notice to every other person entitled in the name 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. It has emerged that the objector and her children were not heard in the proceedings leading to the confirmation of grant herein . I find that the confirmation of grant and the subsequent subdivision and registration of the land West Kitutu/Mwagichana/3957 and 3958 were obtained The objectors admitted that Boaz Jorum a daughter and son to deceased as per the chief’s letter was also were not in court during confirmation and they justified it by saying that the court did not ask about them for and though the petitioners said that she was not interested in the estate but no evidence of the same was availed Rule 26 of Probate and administration Rules prescribes;
1) Letters of administration shall not be granted to any applicant without notice to every other person entitled in the name 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. It has emerged that the objector and her children were not heard in the proceedings leading to the confirmation of grant herein There is no evidence that the objectors were in court on the material day or that they were informed of that day . I find that the grant the confirmation of grant and the subsequent subdivision and registration of the land West Kitutu/Mwagichana/3957 and 3958 were obtained fraudulently .
23. On whether land parcel no 2970 was available to distribution, the respondents said it was and hence it was distributed as per the confirmed grant in the presence of the objectors on 22.2.21 when the grant was confirmed and that resultant title deed no. 3957 and 3958 were issued . This is disputed by the objectors. The land registrar indicated that the said land is still in the name of the deceased and I have already found that the grant was obtained fraudulently .I order that land registrar reverts back the land to West Kitutu/Mwagichana /2970 in the name of deceased to avail it for distribution.
24. On identification of the beneficiaries of land parcel no 2970, the 1st objector said that the said land belongs to her house and was held by deceased in trust for her as before his death deceased shared his land between the two houses whereby 60 % of the land was gifted to the 1st house represented by his son ,Moseti Mongare who got land parcel West Kitutu/Mwagichana /2971while land Parcel 2970 was registered which is 40 % of the estate was registered in the name of deceased to hold on behalf of her house . She said that Moseti Mongare and his sisters are thus not beneficiaries in land parcel no West Kitutu. Mwagichana.2970. The deceased was a Kisii man and he had two wives . Under the Gusii customary law a polygamous man shares out his estate between his two wives . He divided his land into 2 portions giving the 1st house 60 % of the land and leaving 40 % in his name . It is clear the deceased in his wisdom shared out his land between the two houses and passed title to the of land parcel no. West Kitutu/Mwagichana /2971 to the 1st house and left title parcel No. 2970 in his own name . Pw1 said he passed the title to Moseti of the first house as there were frequent differences between him and the deceased . By the time of his death the title had not passed to the 1st house as found herein above . Also that deceased must have considered the number of the children in the 1st house including the daughters in sharing 60 % of his land to them . This was a fair distribution and the petitioners cannot be heard to claim otherwise . The recourse of the petitioners is thus not in the for the 2 land parcel no. West Kitutu/Mwagichana /2970 left for the 2nd house but land parcel no. West Kitutu/Mwagichana /2971 which was given to their house . In the upshot , the beneficiaries of the said land parcel no. West Kitutu/Mwagichana /2970 are Emelida Kerubo Mongare and her children Boaz Getungi Mongare , Albert Machwanga Mongare and Clinton Mongare .
24. On whether the objectors have satisfied grounds for revocation of grant under section 76 of the Act. I have already found hereinabove that the Widow to the deceased and her children were not involved in the succession cause , that the succession was filed by petitioners who had no interest in the estate . The grant also included Moseti the first son of the deceased and the applicants who were fully provided for in land parcel 2971.The grant was thus obtained fraudulently by concealment of material facts to the court . I proceed to revoke the grant issued on 13.3.15 and confirmed on 22.02.2021.
.
25. Thus I proceed to make the following orders;
i. Elmelida Kerubo Mongare is the surviving widow of deceased herein.
ii. The grant of letters of administration issued on 13.3.15 and confirmed on 22.2.21 issued to the respondents is hereby revoked .
iii. Elmelida Kerubo Mongare is hereby appointed as an administrator of the estate of deceased herein .
iv. Title to deed no. West Kitutu/Mwagichana /2970 in the name of Emelda Kerubo Mongare is fraudulent the same be surrendered to land registrar .
v. Title dee numbers . West Kitutu/Mwagichana/ 3957 and 3938 were obtained fraudulently and I direct the land registrar to revert the land back to title number West Kitutu/Mwagichana /2970 in the name of deceased.
vi. The administrator to file to file a fresh summons for confirmation of grant and a new proposed mode of distribution within 30 days from today.
vii. The children of the first house were fully provided for in land Parcel 2971 and are thus are not beneficiaries of land parcel no West Kitutu. Mwagichana/2970.
viii. Emelida Kerubo Mongare and her children Joram Omwenga Mongare , Albert Machwanga Mongare and Clinton Mongare are the true beneficiaries of land parcel no. West Kitutu/Mwagichana /2970 . , West Kitutu/Mwagichana /2970 was obtained fraudulently.
ix. Each party to bear his own costs as this is a family matter.
T.A ODERA
JUDGE
4.11.25
DELIVERED VIRTUALLY VIA TEAMS PLATFORM IN THE PRESENCE OF MR MASWARI FOR PETIONER/ RESPONDENTS , MR BABU FOR THE OBJECTORS , THE PETITIONERS , THE OBJECTORS . MOSETI MOGARE AND CA KIPCHIRCHIR
'
2.The genesis of the same being that upon demise of the deceased the petitioners herein lodged succession in exclusion of the alleged second house.
3.Thus application for revocation of grant dated 30.05.2023 seeking annulment of grant issued on 13.3.15 and confirmed on 22.02.2021.
4.The application seeks the following orders :
a. Spent
b. Spent
c. Spent
d. The Honourable court be pleased to annul and revoke the grant dated 13th day of march 2015 issued to the petitioners for being obtained through forgery and fraud on an existing title in the name of the 1st objector
e. The Honourable court be pleased to order and declare all transactions of subdivisions , transfer effected on parcel of land WEST KITUTU/ MWAGICHANA 2970 upon the confirmation of grant confirmed on 22nd February 2021as fraudulent and forgery and be revoked
f. The petitioners be condemned to bear the cost of this application and proceedings.
5.This application was premised on the grounds that;
a. The 1st objector’s case is that she is the second wife of the deceased who died on 23rd July 2012. Before the demise of the deceased , in the year 2000 w he subdivided his estate to his two wives , Mercella Mongare (deceased and Elimelda Kerubo Mongare) .
b. The estate of the 1st wife was held by Walter Moseti Mongare the elder and 1st son of the 1st wife in trust for his siblings .
c. The petitioners are daughters of the 1st house of the deceased whose estate on behalf their brother Walter Moseti Mongare is holding title number WEST KITUTU /MWAGICHANA 2971 which represents 60% of the parcel of land WEST GITUTU / MWAGICHANA /2541 as originally held by the deceased.
d. The petitioners are not entitled to any land from parcel no WEST KITUTU/MWAGICHANA/ 2970 as it belongs to the 1st objector and her family.
e. The petitioners have unlawfully subdivided title and obtained subdivided title and have commenced to evict the objectors from the land.
f. It is fair and just to grant the orders sought based on the cited grounds.
6. The application is also based on the supporting affidavit of Elimelda Kerubo Mongare the 1st objector herein and the 2nd objector who is her 1st son was omitted therefore aggrieved by the entire grant obtained , the petitioners are children of her co -wife ,and that the deceased herein was the owner of the land parcel WEST KITUTU/MWAGICHANA/2541 which was subsequently subdivided respectively for his two wives The title remained in the name of the deceased to hold in trust for his 2nd wife. The annexed documents included a copy of the court proceedings of a criminal case against them , a copy of the ruling of the criminal case ,a copy of the filed succession cause and the dismissal ,a copy of the grant and the confirmed grant , a copy of transfer document , a copy of application for consent obtained , a copy of the title and a search for the land parcel , a copy of the eviction notice bundle of letters from the area chief and that the evidence provided are true to the best of her knowledge.
7. The objectors/ applicants called 4 witnesses in support of their case . PW1 the 1st objector herein stated that she is a widow to deceased having been married on was not involved in the filing of the succession cause and produced documents as evidence .During cross examination she reiterated that she was married in the year 2003 with three children at that time and that she lived with the deceased on land parcel in question and that during the lifetime of the deceased she was the one cultivating the land and there was a shop on that land.
8. Pw1 the 1st objector herein stated that Land parcel West Kitutu/ Mwagichana /2970 is not available for distribution as the husband had transferred it to her during his lifetime. She said that the fist house was given land parcel number 2971 through Moseti who is the only on in that house . He said that respondents deliberately excluded her and her children from the succession cause. PW2 Boaz Getungi Mongare is a son to PW1 and the 2nd objector herein. He supported the evidence of PW1 in all the material aspects. PW3 the chief of Mwagichana location stated that he knew the deceased well and he said that pw1 was the 2nd wife to deceased . he said he one mediated on a land dispute between the two houses . PW4 , the village elder stated pw1 was thew 2nd wife to deceased and that he was a witness to deceased sharing our his land between the two houses
Respondents case
9.The respondents on the other hand called 3 witnesses. DW1 Everyn Kemuma Mongare stated that the deceased was her father and that she is the last born in the 1st house . She said the objector was married to One Lawrence Momanyi Omwenga in Omogochoncho village . She said that the 1st objector participated in her father’s funeral but was not recognised as a wife . She said that the 1st objector was recognized as the 2nd wife before the Chief and the elders after the funeral following a dispute and that they agreed to recognise her as the 2nd wife of deceased. . On cross examination , she admitted that in her replying affidavit herein she recognized the 1st objector as a wife and that the estate was to be shared between the two houses they are 8 siblings but the others are not in the chief’s letter because they are married and are not interested in the land .She stated that they filed for the succession cause and the grant was issued. She also claimed that they informed the second house of the date for confirmation of grant confirmation but only herself Everlyne , Water Mongare and Elmelda turned up . He said the others did not attend court despite notice . He said the court did not ask them where the other beneficiaries were . She also denied that they were not fit to be administrators. She said they conducted a search before filling the succession and it showed that the land belonged to their father hence subject to succession.
10. DW2 Gladys Monyangi Nyabuto the 1st petitioner herein testified that she and Everlyne (Dw2) are the administrators of the estate of the deceased . She denied that Elmelda was her father’s wife as deceased was monogamous .She said that Elmelda was just a maid who took care of their father while he was ailing and that they included her in the succession cause as they had no money to pay her money salary of Kshs.1500/= per month which had accumulated to over Kshs 100,000/=. She contended that she does not know of the title deed in the name of the Elmelda and that she consented to the filing of the succession cause and confirmation of grant. She admitted that the grant did not indicate the share of Elmelda and said that they had given her a place to stay. She testified that that the land no 2970 belonged to their father and it was subject to succession. She claim that the 1st objector herein fraudulently obtained the title since the land was still in their father’s name at the time of his death and that he never transferred the land to anyone .
11. The objectors in their submissions stated that deceased had two wives and that the petitioners without any reason concealed the material facts to some of the siblings by deliberately refusing to name some of the beneficiaries that in the year 2000 deceased had subdivided his land into two portion and transferred parcel no 2971 to the 1st son to hold in trust for himself and his other siblings in the 1st house and retained the remaining forty percent for his second house. Also that the deceased in his lifetime signed transfer forms in favour of Emelda and she had the transfer completed upon the demise of deceased. .They relied on section 29 on the issue of dependency and section 76 on the grounds for revocation of grant . They sought that the grant issued to the respondents herein be revoked and annulled and that the land registrar to annul all entries in the title.
12. The respondents submitted stated that their father had given their elder brother land for himself since he had his own family and the remaining land in the name of deceased was held in trust for the unmarried daughters at that time. They further contended that the 2nd house was aware of the succession proceedings and participated in them and thus the grant was issued and confirmed procedurally.
13. The objectors sought revocation of grant under Section 76 of the Law of Succession Act. Cap 160, Laws of Kenya. The said Provision states 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 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.”
Issues for determination.
14. I have carefully considered the objectors’ case and the respondents’ case .The issues arising for determination are as follows ;
a. Whether the first objector is a widow of the deceased and if yes ,
b. Whether the children of the 1st objector were dependants of the deceased
c. Whether land parcel no West Kitutu/Mwagichana/2970 is available for distribution
d. Whether there is sufficient evidence to warrant revocation of grant under Section 76 of the law of Succession Act.
15. 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.
16 .Rule 26 of Probate and Administration Rules prescribes that 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.
17. In the case of Re Estate of Geoffrey Mwaura Ngoima (Deceased) Succession Cause No. 130 of 2005 eKLR where the court in revoking a grant Held that:
“The Law of Succession Act does not put a timeline within which a person can file an application for revocation of grant. The objector in the matter sought revocation of the grant and nullification of title in respect of the original parcel of land. Musyoka, J. In this regard expounded as to when a matter is best placed for a succession cause and when it ought to be referred to Another Court with concurrent jurisdiction in In Re Estate of Alice Mumbua Mutua (Deceased) [2017] eKLR as follows: “…..The Law of Succession Act, and the Rules made thereunder, are designed in such a way that they confer jurisdiction to the Probate court with respect to determining the assets of the deceased, the survivors of the deceased and the persons with beneficial Interest, and finally distribution of the assets amongst the survivors and the persons beneficially interested. The function of the Probate court in the circumstances would be to facilitate collection and preservation of the estate, identification of survivors and Beneficiaries, and distribution of the assets. Disputes of course do arise in the process. The provisions of the Law of Succession Act and the Probate and Administration Rules are tailored for resolution of disputes between the personal representatives of the deceased and the survivors, beneficiaries And dependants. However, claims by and against third parties, meaning persons who a neither survivors of the deceased nor Beneficiaries, are for resolution outside of the framework set out in the Law of Succession Act and the Probate and Administration Rules. Such have to be resolved through the structures created by the Civil Procedure Act and Rules, which have Elaborate rules on suits by and against executors and administrators.’’
18. Section 29 of the Act provides that;
A Dependant is -
The wife or wives and children of the deceased, regardless of whether they were maintained by the deceased immediately prior to their death.
The deceased''s parents, step-parents, grandparents, grandchildren, step-children, children taken into the family as their own brothers, sisters, and half-brothers/half-sisters, provided they were being maintained by the deceased immediately before their death.
19. On whether deceased is a widow to the deceased, she said she is a widow to the deceased and this is supported by Pw2, Pw3 the area chief and Pw4 the village elder , the issue of marriage is denied by the respondents, their brother (Dw3) and Mateno Omwenga (Dw4)who is their neighbour . Dw4 said that the respondents are the ones who told him the Elemelda was a maid and that he saw her living with deceased . Though the respondents say that Elmelda was a maid to the deceased they referred to the 1st house and second house in their testimonies . The theory that Elemelda was recognised as a wife as she was owed salary arrears does not hold any water. There is overwhelming evidence that deceased was survived by the 1st objector who wa his 2nd wife .
20 .On whether the children of Emelda are entitled to inherit the property of deceased , It has emerged that deceased married 1st objector with children including the 2nd objector and that he took them as his own . The respondents case is that she was married with the children while the objectors argued that deceased took care of the said children .It is trite law that once one takes care of children as his own then he cannot stop maintaining them on the ground that they are not his biological children . In Section 29 of the law of succession Act recognizes the ‘’ step-children, children taken into the family as their own’’ as dependants . It then follows that such children are also entitled to inherit the estate of such a deceased who was maintaining them in his left time. It has emerged from the chief’s introduction letter dated 30.9.13 and the evidence that Moseti Mongare the first son of the deceased was provided for by deceased gifting him land parcel no. West Kitutu /Mwagichana/2971 by him in his life time as a representative of the 1st house but the respondents also provided for him in the confirmed grant dated 21. 2.21 ..
21. On whether land parcel West Kitutu/Mwagichana /2970 was available for distribution to both the 1st and second house, 1st objector said it was not available as the same was held in trust by deceased on her behalf at the time he was sharing his property . Also that deceased signed transfer forms in her favour and obtained consent to transfer from the Land Control Board . She said she managed to have the land transferred to her name on 15.7.14 which is 2 years down the line .
22. This court invoked the provisions of rule 73 of probate and administration rules and called for additional evidence from Kisii county land registrar to produce green card of the said land parcel No. West Kitutu/Mwagichana /2970 together with the current official search. The land registrar DW5 informed this court that the copy of green card indicated that the land was still registered in the deceased name and that no transfer entry was made into the register. Also that transfer and consent documents are not in the records held by the land registrar as per the evidence of the land registrar. It is clear that the alleged transfer of the land to 1st objector I was fraudulent . I find that the registration of title deed no, West Kitutu/Mwagichana /2970 in the name of Emelda was obtained fraudulently .
23. On whether the grant was obtained fraudulently obtained The 1st and 2nd objectors were provided for in the grant but they say they were not heard in the said cause and were not aware of it’s existence . The respondents said that Emelda was in court during confirmation They admitted that the 2nd objector a son to deceased , a daughter to deceased and other beneficiaries as per the chief’s letter was also were not in court during confirmation and they justified it by saying that the court did not ask about them . Further that Boaz and did not attend despite being notified . Rule 26 of Probate and administration Rules provides that ;
1) Letters of administration shall not be granted to any applicant without notice to every other person entitled in the name 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. It has emerged that the objector and her children were not heard in the proceedings leading to the confirmation of grant herein . I find that the confirmation of grant and the subsequent subdivision and registration of the land West Kitutu/Mwagichana/3957 and 3958 were obtained The objectors admitted that Boaz Jorum a daughter and son to deceased as per the chief’s letter was also were not in court during confirmation and they justified it by saying that the court did not ask about them for and though the petitioners said that she was not interested in the estate but no evidence of the same was availed Rule 26 of Probate and administration Rules prescribes;
1) Letters of administration shall not be granted to any applicant without notice to every other person entitled in the name 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. It has emerged that the objector and her children were not heard in the proceedings leading to the confirmation of grant herein There is no evidence that the objectors were in court on the material day or that they were informed of that day . I find that the grant the confirmation of grant and the subsequent subdivision and registration of the land West Kitutu/Mwagichana/3957 and 3958 were obtained fraudulently .
23. On whether land parcel no 2970 was available to distribution, the respondents said it was and hence it was distributed as per the confirmed grant in the presence of the objectors on 22.2.21 when the grant was confirmed and that resultant title deed no. 3957 and 3958 were issued . This is disputed by the objectors. The land registrar indicated that the said land is still in the name of the deceased and I have already found that the grant was obtained fraudulently .I order that land registrar reverts back the land to West Kitutu/Mwagichana /2970 in the name of deceased to avail it for distribution.
24. On identification of the beneficiaries of land parcel no 2970, the 1st objector said that the said land belongs to her house and was held by deceased in trust for her as before his death deceased shared his land between the two houses whereby 60 % of the land was gifted to the 1st house represented by his son ,Moseti Mongare who got land parcel West Kitutu/Mwagichana /2971while land Parcel 2970 was registered which is 40 % of the estate was registered in the name of deceased to hold on behalf of her house . She said that Moseti Mongare and his sisters are thus not beneficiaries in land parcel no West Kitutu. Mwagichana.2970. The deceased was a Kisii man and he had two wives . Under the Gusii customary law a polygamous man shares out his estate between his two wives . He divided his land into 2 portions giving the 1st house 60 % of the land and leaving 40 % in his name . It is clear the deceased in his wisdom shared out his land between the two houses and passed title to the of land parcel no. West Kitutu/Mwagichana /2971 to the 1st house and left title parcel No. 2970 in his own name . Pw1 said he passed the title to Moseti of the first house as there were frequent differences between him and the deceased . By the time of his death the title had not passed to the 1st house as found herein above . Also that deceased must have considered the number of the children in the 1st house including the daughters in sharing 60 % of his land to them . This was a fair distribution and the petitioners cannot be heard to claim otherwise . The recourse of the petitioners is thus not in the for the 2 land parcel no. West Kitutu/Mwagichana /2970 left for the 2nd house but land parcel no. West Kitutu/Mwagichana /2971 which was given to their house . In the upshot , the beneficiaries of the said land parcel no. West Kitutu/Mwagichana /2970 are Emelida Kerubo Mongare and her children Boaz Getungi Mongare , Albert Machwanga Mongare and Clinton Mongare .
24. On whether the objectors have satisfied grounds for revocation of grant under section 76 of the Act. I have already found hereinabove that the Widow to the deceased and her children were not involved in the succession cause , that the succession was filed by petitioners who had no interest in the estate . The grant also included Moseti the first son of the deceased and the applicants who were fully provided for in land parcel 2971.The grant was thus obtained fraudulently by concealment of material facts to the court . I proceed to revoke the grant issued on 13.3.15 and confirmed on 22.02.2021.
.
25. Thus I proceed to make the following orders;
i. Elmelida Kerubo Mongare is the surviving widow of deceased herein.
ii. The grant of letters of administration issued on 13.3.15 and confirmed on 22.2.21 issued to the respondents is hereby revoked .
iii. Elmelida Kerubo Mongare is hereby appointed as an administrator of the estate of deceased herein .
iv. Title to deed no. West Kitutu/Mwagichana /2970 in the name of Emelda Kerubo Mongare is fraudulent the same be surrendered to land registrar .
v. Title dee numbers . West Kitutu/Mwagichana/ 3957 and 3938 were obtained fraudulently and I direct the land registrar to revert the land back to title number West Kitutu/Mwagichana /2970 in the name of deceased.
vi. The administrator to file to file a fresh summons for confirmation of grant and a new proposed mode of distribution within 30 days from today.
vii. The children of the first house were fully provided for in land Parcel 2971 and are thus are not beneficiaries of land parcel no West Kitutu. Mwagichana/2970.
viii. Emelida Kerubo Mongare and her children Joram Omwenga Mongare , Albert Machwanga Mongare and Clinton Mongare are the true beneficiaries of land parcel no. West Kitutu/Mwagichana /2970 . , West Kitutu/Mwagichana /2970 was obtained fraudulently.
ix. Each party to bear his own costs as this is a family matter.
T.A ODERA
JUDGE
4.11.25
DELIVERED VIRTUALLY VIA TEAMS PLATFORM IN THE PRESENCE OF MR MASWARI FOR PETIONER/ RESPONDENTS , MR BABU FOR THE OBJECTORS , THE PETITIONERS , THE OBJECTORS . MOSETI MOGARE AND CA KIPCHIRCHIR
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