REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT VIHIGA
SUCCESSION APPEAL NO E003 OF 2025
IN THE MATTER OF THE ESTATE OF YAGOSA LUMASA ALIAS ILAGOSA ALUMASA (DECEASED)
JEDIDAH INYUMA INDULAJI ……….…………….………………..… APPELLANT
VERSUS
ALLAN LITSUSA ASILIGWA ..………………………………….……. RESPONDENT
(Being an appeal from the Ruling and Orders of Hon. R. M. Ndombi (SRM) delivered at Vihiga in the Senior Principal Magistrate’s Court Succession Case No 120 of 2019 on 27 th May 2021)
JUDGMENT
INTRODUCTION
1. The Appeal before this court arose from the decision that was delivered on 27 th May 2021 in which of the Trial Court dismissed the Appellant’s Summons for Revocation of Grant dated 16 th February 2021 wherein, she had sought the revocation of the Grant that was issued to the Respondent herein on 24 th December 2019.
2. Being aggrieved by the said decision, on 31 st May 2021, the Appellant filed a Memorandum of Appeal of even date. She set out five (5) grounds of Appeal.
3. The Appellant's Written Submissions were dated 6 th February 2026 and filed on 9 th February 2026, while the Respondent’s Written Submissions were dated 2 nd March 2026 and filed on 26 th March 2026. The Judgment herein is based on the said Written Submissions, which parties relied upon in their entirety.
LEGAL ANALYSIS
4. Having considered the Record of Appeal, the grounds of appeal and the parties’ Written Submissions, the court identified the following issues for determination:
a. Whether or not the Trial Court erred in law and fact in finding that the Respondent was entitled to petition for the Grant of Letters of Administration in priority to the Appellant;
b. Whether or not the Trial Court erred in law and fact in having dismissed the Appellant’s application for revocation of Grant of Letters of Administration;
c. Whether or not the Trial Court erred in law and fact in having found that the Respondent distributed the estate of Yagosa Lumasa alias Ilagosa Alumasa (hereinafter referred to as “the deceased”) fairly.
5. The court dealt with the said issues under the following distinct and separate heads.
I. RANK OF PETITIONER TO APPLY FOR GRANT OF LETTERS OF ADMINISTRATION
6. Ground of Appeal No (3) was dealt with under this head.
7. The Appellant submitted that the Respondent was the deceased’s grandson and that, when filing the Petition of the Letters of Administration, he indicated that there were only two (2) beneficiaries of the deceased’s estate. She averred that the Respondent failed to disclose that there were other beneficiaries of the deceased’s estate as shown hereinbelow:-
a. Moses Indulaji Ilagosa – deceased who she represented.
b. Jamin Asiligwa – father to the Respondent.
c. Gladys Adema Khavasinya – daughter to the deceased.
d. Tebra M'mbone Vulimu – daughter to the deceased.
8. She stated that she raised the issue of non-disclosure of all the beneficiaries of the deceased’s estate in her application for revocation of grant. She submitted that it was clear that the failure to have disclosed the full list of beneficiaries would have caused the other beneficiaries to lose their rights of inheritance. She reiterated that the Trial Court erred in holding that the application for revocation of grant lacked merit and urged the court to find merit in ground one (1) of the Memorandum of Appeal and allow it with costs to the Appellant.
9. She submitted that she was the daughter-in-law to the deceased and ranked higher in priority to administer the estate than the Respondent. She added that the Respondent’s aunts, who were also alive, ranked higher in priority to administer the estate than the Respondent and urged the court to allow ground three (3) of the Memorandum of Appeal with costs.
10. On his part, the Respondent submitted that the Appellant contended that she ranked higher than him in priority to administer the estate. He cited Section 66 of the Law of Succession Act, which gave preference to a surviving spouse, children and other beneficiaries entitled on intestacy. He pointed out that she had not demonstrated that she ranked above a biological descendant of the deceased. He averred that he was a lineal descendant of the deceased while the Appellant was not. He asserted that a daughter-in-law was not expressly provided for under that provision.
11. He relied on the case of In re Estate of Murigi (Deceased) (2019) eKLR , where the court held that consanguinity ranked higher than affinity in matters of administration.
12. He further contended that his father, though incarcerated, had not objected to him petitioning for the grant and that there was no evidence of lack of consent. He submitted that the Trial Court correctly applied Section 66 of the Law of Succession Act.
13. He urged this court to be guided by the principles in the case of Selle & Another vs Associated Motor Boat Co Ltd [1968] EA 123 , where it was held that a first appellate court must re-evaluate the evidence but should not interfere with findings of fact unless they were based on no evidence, based on a misapprehension of the evidence or the court had acted on wrong principles.
14. He further submitted that appellate courts were slow to interfere with judicial discretion unless it was shown that the court had misdirected itself, as held in the case of Mbogo & Another vs Shah (1968) EA 93 .
15. The relationship between the Appellant, the Respondent and the deceased was not disputed. The Appellant was the widow of the deceased's late son, while the Respondent was the son of the deceased's surviving son, who was incarcerated. The deceased had four (4) children, three (3) of whom survived him. These children were still alive.
16. The Respondent stated that his father did not object to him petitioning for the Grant and that the deceased’s other two (2) daughters were not interested in taking a share of the estate. He submitted that Section 66 of the Law of Succession Act had been correctly applied and the Trial Court properly exercised its discretion.
17. Section 66 of the Law of Succession Act sets out the order of priority to be applied in issuing Letters of Administration to an estate. It states as follows; -
“When a deceased has died intestate, the court shall, save as otherwise expressly provided, have a final discretion as to the person or persons to whom a grant of letters of administration shall, in the best interests of all concerned, be made, but shall, without prejudice to that discretion, accept as a general guide, the following order of preference –
a. surviving spouse or spouses, with or without association of other beneficiaries;
b. other beneficiaries entitled on intestacy, with priority according to their respective beneficial interests as provided by Part V;
c. the Public Trustee; and
d. creditors
Provided that, where there is partial intestacy, letters of administration in respect of the intestate estate shall be granted to any executor or executors who prove the will.”
18. Part V of the Law of Succession Act provides that a surviving child of a deceased person who had died intestate was a beneficiary entitled to the estate. Section 38 of the Law of Succession Act states that:-
“ Where an intestate has left a surviving child or children but no spouse, the net intestate estate shall, subject to the provisions of sections 41 and 42 , devolve upon the surviving child, if there be only one, or shall be equally divided among the surviving children.”
19. Section 39 of the Law of Succession Act further stipulates that:-
1. Where an intestate has left no surviving spouse or children, the net intestate estate shall devolve upon the kindred of the intestate in the following order of priority—
a. father; or if dead
b. mother; or if dead
c. brothers and sisters, and any child or children of deceased brothers and sisters, in equal shares; or if none
d. half-brothers and half-sisters and any child or children of deceased half-brothers and half-sisters, in equal shares; or if none
e. the relatives who are in the nearest degree of consanguinity up to and including the sixth degree, in equal shares.
2. Failing survival by any of the persons mentioned in paragraphs (a) to (e) of subsection (1), the net intestate estate shall devolve upon the State, and be paid into the Consolidated Fund.
20. In this case, the Respondent had disclosed that his father was alive and incarcerated and had stated that the other two (2) daughters of the deceased were not interested in the estate. The issue before the court was therefore not whether those facts were disclosed, but whether, notwithstanding that disclosure, the Respondent had the legal priority to petition for the Grant of Letters of Administration in light of the order of preference under Section 66 of the Law of Succession Act.
21. Having survived the deceased, the Respondent’s father was a direct beneficiary of the estate notwithstanding his incarceration. He, therefore, ranked higher in priority to the Respondent. The Respondent's assertion that his father did not object to him petitioning for the Grant of Letters of Administration did not, without the necessary written consent or renunciation contemplated under the Law of Succession Act, alter the statutory order of preference under Section 66 of the Law of Succession.
22. The court further considered the Respondent's contention that the deceased's other two (2) daughters were not interested in the estate. However, their alleged lack of interest in the estate did not, without more, confer priority upon him to petition for the Grant of Letters of Administration or displace their statutory entitlement under the Law of Succession Act without consenting him to do so in writing. Being the deceased’s children, the two (2) daughters were entitled to apply for the Grant of Letters of Administration in equality with the Respondent’s father and on priority to the Respondent.
23. As the deceased’s daughter-in-law, the Appellant could not apply for the Grant of Letters of Administration as the Respondent, his father and aunties were still alive. Only her children could apply for the said Grant of Letters of Administration in the event the Respondent’s father and his two (2) sisters had died or if they had given them consent to apply for the Grant of Letters of Administration under Rule 26 of the Probate and Administration Rules.
24. The said Rule 26 of the Probate and Administration Rules states that:-
2. 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.
3. 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.
4. Unless the court otherwise directs for reasons to be recorded, administration shall be granted to a living person in his own right in preference to the personal representative of a deceased person who would, if living, have been entitled in the same degree, and to a person not under disability in preference to an infant entitled in the same degree.
25. In the absence of the requisite consent or renunciation by persons with prior entitlement, the court found that neither the Respondent nor the Appellant ranked in priority to the deceased's surviving children under Section 66 of the Law of Succession Act to apply for a grant of letters of administration in respect of the deceased’s estate.
26. Indeed, t his court found and held that a daughter-in-law did not automatically rank in priority to administer the estate of her father-in-law under Section 66 of the Law of Succession Act and had to establish a recognised legal interest in the estate either through the Section 29 of the Law of Succession Act or claim through her children. Daughters-in-law did not fall within the degree of consanguinity contemplated under Section 39(1)(f) of the Law of Succession Act further demonstrated in the Table of Consanguinity in the Second Schedule of the Probate and Administration Rules pursuant to Rule 7(1)(e)(iii) of the said Rules.
27. Rule 7(1)(e )(iii) of the Probate and Administration Rules provides that:-
“Subject to the provisions of subrule (9), where an applicant seeks a grant of representation to the estate of a deceased person to whose estate no grant or no grant other than one under section 49 or a limited grant under section 67 of the Act has been made, the application shall be by petition in the appropriate Form supported by an affidavit in one of Forms 3 to 6 as appropriate containing, so far as they may be within the knowledge of the applicant, the following particulars or the purposes of determining the degree of consanguinity reference shall be made to the table set out in the Second Schedule”
28. In the premises foregoing, Ground of Appeal No (3) was not merited and the same be and is hereby dismissed.
II. REVOCATION OF GRANT OF LETTERS OF ADMINISTRATION
29. Grounds of Appeal Nos (1) and (5) were dealt with together as they were related.
30. The Appellant submitted that for an application for revocation of grant to succeed, the applicant had to prove that the grant was obtained without disclosing all material facts to the court or by giving wrong information to the court.
31. She submitted that the Trial Court failed to consider the submissions filed by her counsel in support of the application for revocation of grant, which clearly brought out the Respondent’s non-disclosure of information. She thus urged this court to allow this ground of appeal.
32. On his part, the Respondent submitted that revocation of a grant of letters of administration was governed strictly by Section 76 of the Law of Succession Act. He pointed out that the Appellant's central complaint was the alleged non-disclosure of beneficiaries. He averred that not every omission led to revocation and that the omission had to be material and shown to prejudice the beneficiaries. He added that the non-disclosure had to be deliberate, the concealment had to be material and affect the substance of the grant.
33. He submitted that the record demonstrated that the existence of the deceased's sons and daughters was known, and that the Appellant was listed as a beneficiary in respect of her late husband's share, that the alleged omitted beneficiaries had not filed affidavits complaining of exclusion and that there was no proof of fraud.
34. He was emphatic that although the Appellant argued that the deceased’s daughters had been excluded, the said daughters were aware of the proceedings and that they had not filed any affidavit alleging exclusion. He submitted that in succession matters, courts acted on evidence rather than speculative grievances raised by third parties. He further submitted that a party could not purport to agitate the rights of beneficiaries who had not themselves complained. He argued that the Appellant lacked locus to litigate the grievances of competent adult beneficiaries who had not objected.
35. He submitted that the Appellant's arguments largely challenged the mode of distribution. He relied on the case of In Re Estate of Prisca Ong'ayo Nande (Deceased) (2020) eKLR , where the court held that dissatisfaction with distribution was not, of itself, a ground for revocation unless it was tied to the statutory grounds under Section 76 of the Law of Succession.
36. He submitted that revocation was not an appeal against confirmation and had to be anchored on fraud, defect, or misrepresentation. He was emphatic that the Appellant was improperly converting revocation proceedings into a distribution dispute and that the Trial Court had properly rejected that approach. He asserted that the Appellant had not demonstrated misapplication of Section 76 of the Law of Succession Act, failure to consider the evidence, reliance on irrelevant matters or an erroneous principle of law.
37. He submitted that, from the foregoing, the Appellant failed to discharge the burden of proof before the Trial Court. He submitted that the threshold for revocation under Section 76 of the Law of Succession Act for no material non-disclosure had not been met to the required standard and that the Trial Court properly exercised its discretion.
38. He further submitted that the Appellant had not demonstrated deliberate concealment and that the Trial Court had correctly found that there was no material non-disclosure. He was emphatic that the Trial Court properly directed itself on Section 76 of the Law of Succession Act and found that no statutory ground for revocation of grant had been established. He stated that the Appeal was devoid of merit and invited the court to interfere with a properly exercised judicial discretion without demonstrating any misdirection, illegality or perversity.
39. He relied on the case of Matheka & Another vs Matheka (2005) eKLR , where the Court of Appeal held that a grant could only be revoked where the applicant proved the specific statutory grounds under Section 76.
40. He asserted that revocation was not automatic and had to be grounded on evidence. He also relied on the case of In re Estate of Julius Ndubi Javan (Deceased) (2018) eKLR , where it was held that the burden lay upon the applicant to strictly demonstrate fraud, concealment, or defective proceedings. He submitted that revocation was a drastic remedy and could not be granted on mere suspicion, dissatisfaction, or speculation.
41. It was his submission that he disclosed all the children of the deceased and all the assets of the deceased and that the Appellant failed to discharge the burden of proof and therefore her claim had failed.
42. Notably, Section 76 of the Law of Succession Act sets out the revocation or annulment of grant of letters of Administration to an estate 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.”
43. A perusal of the Petition of Letters of Administration dated and filed on 4 th July 2019 showed that the Respondent had only indicated him and the Appellant herein as the only beneficiaries who survived the deceased. This was as per the Letter from Fred Adika Silingi, the Assistant Chief of Kedoli Sub-location, dated 2 nd July 2018. This was clearly not true as the Respondent’s father and his two (2) siblings were still alive.
44. This court took cognisance of Rule 27 of the Probate and Administration Rules which provides that a grant could be made to whom it could be made. For instance, citors could be issued with grants of letters of administration where the deceased’s beneficiaries had refused to take out such grants. It states as follows:-
“Nothing in rule 26 shall operate to prevent a grant being made to any person to whom a grant may be made, or may be required to be made, under the Act.”
45. The Respondent herein did not explain if he fell within the persons contemplated under Rule 27 of the Probate and Administration Rules to have been issued with a grant as some of the deceased’s children were still alive.
46. It was evident to this court that there was a material non-disclosure of the right beneficiaries of the deceased’s estate rendering the proceedings to obtain the grant defective in substance, the Grant of Letters of Administration was obtained fraudulently by the making of a false statement or by the concealment from the court of something material to the case and 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 the Respondent made may have been in ignorance or inadvertently as envisaged in Section 76(a), (b) and (c) of the Law of Succession.
47. In addition, having found that the Respondent did not rank in priority over the surviving children of the deceased, and that the Appellant did not rank in priority by virtue of being a daughter-in-law, the court found that the proceedings leading to the issuance of the Grant were procedurally defective within the meaning of Section 76 of the Law of Succession Act by reason of the absence of the requisite written consents or renunciations from the persons having prior entitlement.
48. This court was thus persuaded to find and hold that the Grant of Letters of Administration that was issued on 24 th December 2019 only lent to it being revoked. In the premises foregoing, Grounds of Appeal Nos (1) and (5) were merited and the same be and hereby allowed.
III. MODE OF DISTRIBUTION OF THE DECEASED’S ESTATE
49. Grounds of Appeal Nos (2) and (4) were dealt with under this head as they were related.
50. The Appellant submitted that the Trial Court erred in holding that the Respondent distributed the estate of the deceased fairly among the beneficiaries. She stated that the Respondent shared Land Parcel Number Kakamega/Kedoli/363 (hereinafter referred to as “the subject property”) equally between himself and her but had not given any share to his father, aunts, brothers and sisters.
51. It was her averment that the Trial Court failed to consider the evidence she adduced in arriving at its finding to the effect that some beneficiaries of the deceased’s estate had been left out at the time of distribution of his estate. She averred that the Respondent had not indicated that he was holding his half share on behalf of his siblings, whom he failed to disclose were also staying within the estate. She thus, stated that the Respondent’s mode of distribution of the deceased’s estate was wrong.
52. On his part, the Respondent asked this court not to interfere with the well-reasoned Ruling and prayed that the appeal be dismissed in its entirety and he be awarded costs of this Appeal.
53. This court took the firm view that distribution of a deceased’s estate had to be undertaken in accordance with the provisions of the Law of Succession Act. Indeed, the entitlement of beneficiaries was determined by the statutory scheme and not by an agreement or arrangement inconsistent with the Act.
54. The court therefore found that the equal distribution of the estate between the Respondent and the Appellant could not presently be sustained on the material before the court, as it had not been shown to accord with the provisions governing intestate succession. The beneficiaries of the deceased’s estate were mandated to comply with the provisions of the law.
55. In the circumstances, having found that neither the Respondent nor the Appellant ranked in priority to petition for the Grant and that the distribution of the estate was inconsistent with the statutory scheme under the Law of Succession Act, the court was satisfied that the confirmation of the Grant and the distribution effected pursuant thereto could not stand.
DISPOSITION
56. For the foregoing reasons, the upshot of this court’s decision was that the Appeal dated and filed on 31 st May 2021 was partially merited. The effect of this decision is that the Ruling of Hon R. Ndombi (SRM) that was delivered in Vihiga Senior Principal Magistrate’s Court Succession Cause No 120 of 2019 on 27 th May 2021 be and is hereby allowed.
57. It is hereby directed that the lower court file be and is hereby returned to the Senior Principal Magistrate’s Court at Vihiga and that the same be mentioned before the Head of Station on 30 th September 2026 for allocation to any judicial officer for further orders and/or directions regarding the administration of the deceased’s estate.
58. Considering that this dispute arose from a family dispute, so as not to strain the relationship between the Appellant and the Respondent herein, it is hereby directed that each party will bear its own costs of this Appeal.
59. It is so ordered.
DATED and SIGNED at VIHIGA this 16 th day of September 2026
J. KAMAU
JUDGE
HCFA NO E003 OF 20252
IN THE HIGH COURT OF KENYA AT VIHIGA
SUCCESSION APPEAL NO E003 OF 2025
IN THE MATTER OF THE ESTATE OF YAGOSA LUMASA ALIAS ILAGOSA ALUMASA (DECEASED)
JEDIDAH INYUMA INDULAJI ……….…………….………………..… APPELLANT
VERSUS
ALLAN LITSUSA ASILIGWA ..………………………………….……. RESPONDENT
(Being an appeal from the Ruling and Orders of Hon. R. M. Ndombi (SRM) delivered at Vihiga in the Senior Principal Magistrate’s Court Succession Case No 120 of 2019 on 27 th May 2021)
JUDGMENT
INTRODUCTION
1. The Appeal before this court arose from the decision that was delivered on 27 th May 2021 in which of the Trial Court dismissed the Appellant’s Summons for Revocation of Grant dated 16 th February 2021 wherein, she had sought the revocation of the Grant that was issued to the Respondent herein on 24 th December 2019.
2. Being aggrieved by the said decision, on 31 st May 2021, the Appellant filed a Memorandum of Appeal of even date. She set out five (5) grounds of Appeal.
3. The Appellant's Written Submissions were dated 6 th February 2026 and filed on 9 th February 2026, while the Respondent’s Written Submissions were dated 2 nd March 2026 and filed on 26 th March 2026. The Judgment herein is based on the said Written Submissions, which parties relied upon in their entirety.
LEGAL ANALYSIS
4. Having considered the Record of Appeal, the grounds of appeal and the parties’ Written Submissions, the court identified the following issues for determination:
a. Whether or not the Trial Court erred in law and fact in finding that the Respondent was entitled to petition for the Grant of Letters of Administration in priority to the Appellant;
b. Whether or not the Trial Court erred in law and fact in having dismissed the Appellant’s application for revocation of Grant of Letters of Administration;
c. Whether or not the Trial Court erred in law and fact in having found that the Respondent distributed the estate of Yagosa Lumasa alias Ilagosa Alumasa (hereinafter referred to as “the deceased”) fairly.
5. The court dealt with the said issues under the following distinct and separate heads.
I. RANK OF PETITIONER TO APPLY FOR GRANT OF LETTERS OF ADMINISTRATION
6. Ground of Appeal No (3) was dealt with under this head.
7. The Appellant submitted that the Respondent was the deceased’s grandson and that, when filing the Petition of the Letters of Administration, he indicated that there were only two (2) beneficiaries of the deceased’s estate. She averred that the Respondent failed to disclose that there were other beneficiaries of the deceased’s estate as shown hereinbelow:-
a. Moses Indulaji Ilagosa – deceased who she represented.
b. Jamin Asiligwa – father to the Respondent.
c. Gladys Adema Khavasinya – daughter to the deceased.
d. Tebra M'mbone Vulimu – daughter to the deceased.
8. She stated that she raised the issue of non-disclosure of all the beneficiaries of the deceased’s estate in her application for revocation of grant. She submitted that it was clear that the failure to have disclosed the full list of beneficiaries would have caused the other beneficiaries to lose their rights of inheritance. She reiterated that the Trial Court erred in holding that the application for revocation of grant lacked merit and urged the court to find merit in ground one (1) of the Memorandum of Appeal and allow it with costs to the Appellant.
9. She submitted that she was the daughter-in-law to the deceased and ranked higher in priority to administer the estate than the Respondent. She added that the Respondent’s aunts, who were also alive, ranked higher in priority to administer the estate than the Respondent and urged the court to allow ground three (3) of the Memorandum of Appeal with costs.
10. On his part, the Respondent submitted that the Appellant contended that she ranked higher than him in priority to administer the estate. He cited Section 66 of the Law of Succession Act, which gave preference to a surviving spouse, children and other beneficiaries entitled on intestacy. He pointed out that she had not demonstrated that she ranked above a biological descendant of the deceased. He averred that he was a lineal descendant of the deceased while the Appellant was not. He asserted that a daughter-in-law was not expressly provided for under that provision.
11. He relied on the case of In re Estate of Murigi (Deceased) (2019) eKLR , where the court held that consanguinity ranked higher than affinity in matters of administration.
12. He further contended that his father, though incarcerated, had not objected to him petitioning for the grant and that there was no evidence of lack of consent. He submitted that the Trial Court correctly applied Section 66 of the Law of Succession Act.
13. He urged this court to be guided by the principles in the case of Selle & Another vs Associated Motor Boat Co Ltd [1968] EA 123 , where it was held that a first appellate court must re-evaluate the evidence but should not interfere with findings of fact unless they were based on no evidence, based on a misapprehension of the evidence or the court had acted on wrong principles.
14. He further submitted that appellate courts were slow to interfere with judicial discretion unless it was shown that the court had misdirected itself, as held in the case of Mbogo & Another vs Shah (1968) EA 93 .
15. The relationship between the Appellant, the Respondent and the deceased was not disputed. The Appellant was the widow of the deceased's late son, while the Respondent was the son of the deceased's surviving son, who was incarcerated. The deceased had four (4) children, three (3) of whom survived him. These children were still alive.
16. The Respondent stated that his father did not object to him petitioning for the Grant and that the deceased’s other two (2) daughters were not interested in taking a share of the estate. He submitted that Section 66 of the Law of Succession Act had been correctly applied and the Trial Court properly exercised its discretion.
17. Section 66 of the Law of Succession Act sets out the order of priority to be applied in issuing Letters of Administration to an estate. It states as follows; -
“When a deceased has died intestate, the court shall, save as otherwise expressly provided, have a final discretion as to the person or persons to whom a grant of letters of administration shall, in the best interests of all concerned, be made, but shall, without prejudice to that discretion, accept as a general guide, the following order of preference –
a. surviving spouse or spouses, with or without association of other beneficiaries;
b. other beneficiaries entitled on intestacy, with priority according to their respective beneficial interests as provided by Part V;
c. the Public Trustee; and
d. creditors
Provided that, where there is partial intestacy, letters of administration in respect of the intestate estate shall be granted to any executor or executors who prove the will.”
18. Part V of the Law of Succession Act provides that a surviving child of a deceased person who had died intestate was a beneficiary entitled to the estate. Section 38 of the Law of Succession Act states that:-
“ Where an intestate has left a surviving child or children but no spouse, the net intestate estate shall, subject to the provisions of sections 41 and 42 , devolve upon the surviving child, if there be only one, or shall be equally divided among the surviving children.”
19. Section 39 of the Law of Succession Act further stipulates that:-
1. Where an intestate has left no surviving spouse or children, the net intestate estate shall devolve upon the kindred of the intestate in the following order of priority—
a. father; or if dead
b. mother; or if dead
c. brothers and sisters, and any child or children of deceased brothers and sisters, in equal shares; or if none
d. half-brothers and half-sisters and any child or children of deceased half-brothers and half-sisters, in equal shares; or if none
e. the relatives who are in the nearest degree of consanguinity up to and including the sixth degree, in equal shares.
2. Failing survival by any of the persons mentioned in paragraphs (a) to (e) of subsection (1), the net intestate estate shall devolve upon the State, and be paid into the Consolidated Fund.
20. In this case, the Respondent had disclosed that his father was alive and incarcerated and had stated that the other two (2) daughters of the deceased were not interested in the estate. The issue before the court was therefore not whether those facts were disclosed, but whether, notwithstanding that disclosure, the Respondent had the legal priority to petition for the Grant of Letters of Administration in light of the order of preference under Section 66 of the Law of Succession Act.
21. Having survived the deceased, the Respondent’s father was a direct beneficiary of the estate notwithstanding his incarceration. He, therefore, ranked higher in priority to the Respondent. The Respondent's assertion that his father did not object to him petitioning for the Grant of Letters of Administration did not, without the necessary written consent or renunciation contemplated under the Law of Succession Act, alter the statutory order of preference under Section 66 of the Law of Succession.
22. The court further considered the Respondent's contention that the deceased's other two (2) daughters were not interested in the estate. However, their alleged lack of interest in the estate did not, without more, confer priority upon him to petition for the Grant of Letters of Administration or displace their statutory entitlement under the Law of Succession Act without consenting him to do so in writing. Being the deceased’s children, the two (2) daughters were entitled to apply for the Grant of Letters of Administration in equality with the Respondent’s father and on priority to the Respondent.
23. As the deceased’s daughter-in-law, the Appellant could not apply for the Grant of Letters of Administration as the Respondent, his father and aunties were still alive. Only her children could apply for the said Grant of Letters of Administration in the event the Respondent’s father and his two (2) sisters had died or if they had given them consent to apply for the Grant of Letters of Administration under Rule 26 of the Probate and Administration Rules.
24. The said Rule 26 of the Probate and Administration Rules states that:-
2. 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.
3. 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.
4. Unless the court otherwise directs for reasons to be recorded, administration shall be granted to a living person in his own right in preference to the personal representative of a deceased person who would, if living, have been entitled in the same degree, and to a person not under disability in preference to an infant entitled in the same degree.
25. In the absence of the requisite consent or renunciation by persons with prior entitlement, the court found that neither the Respondent nor the Appellant ranked in priority to the deceased's surviving children under Section 66 of the Law of Succession Act to apply for a grant of letters of administration in respect of the deceased’s estate.
26. Indeed, t his court found and held that a daughter-in-law did not automatically rank in priority to administer the estate of her father-in-law under Section 66 of the Law of Succession Act and had to establish a recognised legal interest in the estate either through the Section 29 of the Law of Succession Act or claim through her children. Daughters-in-law did not fall within the degree of consanguinity contemplated under Section 39(1)(f) of the Law of Succession Act further demonstrated in the Table of Consanguinity in the Second Schedule of the Probate and Administration Rules pursuant to Rule 7(1)(e)(iii) of the said Rules.
27. Rule 7(1)(e )(iii) of the Probate and Administration Rules provides that:-
“Subject to the provisions of subrule (9), where an applicant seeks a grant of representation to the estate of a deceased person to whose estate no grant or no grant other than one under section 49 or a limited grant under section 67 of the Act has been made, the application shall be by petition in the appropriate Form supported by an affidavit in one of Forms 3 to 6 as appropriate containing, so far as they may be within the knowledge of the applicant, the following particulars or the purposes of determining the degree of consanguinity reference shall be made to the table set out in the Second Schedule”
28. In the premises foregoing, Ground of Appeal No (3) was not merited and the same be and is hereby dismissed.
II. REVOCATION OF GRANT OF LETTERS OF ADMINISTRATION
29. Grounds of Appeal Nos (1) and (5) were dealt with together as they were related.
30. The Appellant submitted that for an application for revocation of grant to succeed, the applicant had to prove that the grant was obtained without disclosing all material facts to the court or by giving wrong information to the court.
31. She submitted that the Trial Court failed to consider the submissions filed by her counsel in support of the application for revocation of grant, which clearly brought out the Respondent’s non-disclosure of information. She thus urged this court to allow this ground of appeal.
32. On his part, the Respondent submitted that revocation of a grant of letters of administration was governed strictly by Section 76 of the Law of Succession Act. He pointed out that the Appellant's central complaint was the alleged non-disclosure of beneficiaries. He averred that not every omission led to revocation and that the omission had to be material and shown to prejudice the beneficiaries. He added that the non-disclosure had to be deliberate, the concealment had to be material and affect the substance of the grant.
33. He submitted that the record demonstrated that the existence of the deceased's sons and daughters was known, and that the Appellant was listed as a beneficiary in respect of her late husband's share, that the alleged omitted beneficiaries had not filed affidavits complaining of exclusion and that there was no proof of fraud.
34. He was emphatic that although the Appellant argued that the deceased’s daughters had been excluded, the said daughters were aware of the proceedings and that they had not filed any affidavit alleging exclusion. He submitted that in succession matters, courts acted on evidence rather than speculative grievances raised by third parties. He further submitted that a party could not purport to agitate the rights of beneficiaries who had not themselves complained. He argued that the Appellant lacked locus to litigate the grievances of competent adult beneficiaries who had not objected.
35. He submitted that the Appellant's arguments largely challenged the mode of distribution. He relied on the case of In Re Estate of Prisca Ong'ayo Nande (Deceased) (2020) eKLR , where the court held that dissatisfaction with distribution was not, of itself, a ground for revocation unless it was tied to the statutory grounds under Section 76 of the Law of Succession.
36. He submitted that revocation was not an appeal against confirmation and had to be anchored on fraud, defect, or misrepresentation. He was emphatic that the Appellant was improperly converting revocation proceedings into a distribution dispute and that the Trial Court had properly rejected that approach. He asserted that the Appellant had not demonstrated misapplication of Section 76 of the Law of Succession Act, failure to consider the evidence, reliance on irrelevant matters or an erroneous principle of law.
37. He submitted that, from the foregoing, the Appellant failed to discharge the burden of proof before the Trial Court. He submitted that the threshold for revocation under Section 76 of the Law of Succession Act for no material non-disclosure had not been met to the required standard and that the Trial Court properly exercised its discretion.
38. He further submitted that the Appellant had not demonstrated deliberate concealment and that the Trial Court had correctly found that there was no material non-disclosure. He was emphatic that the Trial Court properly directed itself on Section 76 of the Law of Succession Act and found that no statutory ground for revocation of grant had been established. He stated that the Appeal was devoid of merit and invited the court to interfere with a properly exercised judicial discretion without demonstrating any misdirection, illegality or perversity.
39. He relied on the case of Matheka & Another vs Matheka (2005) eKLR , where the Court of Appeal held that a grant could only be revoked where the applicant proved the specific statutory grounds under Section 76.
40. He asserted that revocation was not automatic and had to be grounded on evidence. He also relied on the case of In re Estate of Julius Ndubi Javan (Deceased) (2018) eKLR , where it was held that the burden lay upon the applicant to strictly demonstrate fraud, concealment, or defective proceedings. He submitted that revocation was a drastic remedy and could not be granted on mere suspicion, dissatisfaction, or speculation.
41. It was his submission that he disclosed all the children of the deceased and all the assets of the deceased and that the Appellant failed to discharge the burden of proof and therefore her claim had failed.
42. Notably, Section 76 of the Law of Succession Act sets out the revocation or annulment of grant of letters of Administration to an estate 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.”
43. A perusal of the Petition of Letters of Administration dated and filed on 4 th July 2019 showed that the Respondent had only indicated him and the Appellant herein as the only beneficiaries who survived the deceased. This was as per the Letter from Fred Adika Silingi, the Assistant Chief of Kedoli Sub-location, dated 2 nd July 2018. This was clearly not true as the Respondent’s father and his two (2) siblings were still alive.
44. This court took cognisance of Rule 27 of the Probate and Administration Rules which provides that a grant could be made to whom it could be made. For instance, citors could be issued with grants of letters of administration where the deceased’s beneficiaries had refused to take out such grants. It states as follows:-
“Nothing in rule 26 shall operate to prevent a grant being made to any person to whom a grant may be made, or may be required to be made, under the Act.”
45. The Respondent herein did not explain if he fell within the persons contemplated under Rule 27 of the Probate and Administration Rules to have been issued with a grant as some of the deceased’s children were still alive.
46. It was evident to this court that there was a material non-disclosure of the right beneficiaries of the deceased’s estate rendering the proceedings to obtain the grant defective in substance, the Grant of Letters of Administration was obtained fraudulently by the making of a false statement or by the concealment from the court of something material to the case and 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 the Respondent made may have been in ignorance or inadvertently as envisaged in Section 76(a), (b) and (c) of the Law of Succession.
47. In addition, having found that the Respondent did not rank in priority over the surviving children of the deceased, and that the Appellant did not rank in priority by virtue of being a daughter-in-law, the court found that the proceedings leading to the issuance of the Grant were procedurally defective within the meaning of Section 76 of the Law of Succession Act by reason of the absence of the requisite written consents or renunciations from the persons having prior entitlement.
48. This court was thus persuaded to find and hold that the Grant of Letters of Administration that was issued on 24 th December 2019 only lent to it being revoked. In the premises foregoing, Grounds of Appeal Nos (1) and (5) were merited and the same be and hereby allowed.
III. MODE OF DISTRIBUTION OF THE DECEASED’S ESTATE
49. Grounds of Appeal Nos (2) and (4) were dealt with under this head as they were related.
50. The Appellant submitted that the Trial Court erred in holding that the Respondent distributed the estate of the deceased fairly among the beneficiaries. She stated that the Respondent shared Land Parcel Number Kakamega/Kedoli/363 (hereinafter referred to as “the subject property”) equally between himself and her but had not given any share to his father, aunts, brothers and sisters.
51. It was her averment that the Trial Court failed to consider the evidence she adduced in arriving at its finding to the effect that some beneficiaries of the deceased’s estate had been left out at the time of distribution of his estate. She averred that the Respondent had not indicated that he was holding his half share on behalf of his siblings, whom he failed to disclose were also staying within the estate. She thus, stated that the Respondent’s mode of distribution of the deceased’s estate was wrong.
52. On his part, the Respondent asked this court not to interfere with the well-reasoned Ruling and prayed that the appeal be dismissed in its entirety and he be awarded costs of this Appeal.
53. This court took the firm view that distribution of a deceased’s estate had to be undertaken in accordance with the provisions of the Law of Succession Act. Indeed, the entitlement of beneficiaries was determined by the statutory scheme and not by an agreement or arrangement inconsistent with the Act.
54. The court therefore found that the equal distribution of the estate between the Respondent and the Appellant could not presently be sustained on the material before the court, as it had not been shown to accord with the provisions governing intestate succession. The beneficiaries of the deceased’s estate were mandated to comply with the provisions of the law.
55. In the circumstances, having found that neither the Respondent nor the Appellant ranked in priority to petition for the Grant and that the distribution of the estate was inconsistent with the statutory scheme under the Law of Succession Act, the court was satisfied that the confirmation of the Grant and the distribution effected pursuant thereto could not stand.
DISPOSITION
56. For the foregoing reasons, the upshot of this court’s decision was that the Appeal dated and filed on 31 st May 2021 was partially merited. The effect of this decision is that the Ruling of Hon R. Ndombi (SRM) that was delivered in Vihiga Senior Principal Magistrate’s Court Succession Cause No 120 of 2019 on 27 th May 2021 be and is hereby allowed.
57. It is hereby directed that the lower court file be and is hereby returned to the Senior Principal Magistrate’s Court at Vihiga and that the same be mentioned before the Head of Station on 30 th September 2026 for allocation to any judicial officer for further orders and/or directions regarding the administration of the deceased’s estate.
58. Considering that this dispute arose from a family dispute, so as not to strain the relationship between the Appellant and the Respondent herein, it is hereby directed that each party will bear its own costs of this Appeal.
59. It is so ordered.
DATED and SIGNED at VIHIGA this 16 th day of September 2026
J. KAMAU
JUDGE
HCFA NO E003 OF 20252