1. The deceased herein, Agai Chumo, died on 11/01/2011 at the age of 68 years. On 8/08/2013, the Administrator, Priscilla Jesondin Chumo, claiming as his widow, petitioned for Letters of Administration to manage the estate. In the Petition, she listed herself and her 7 children as the survivors of the deceased, and 2 parcels of land as comprising the estate, namely, Turbo East/Sosian Block 1(Sugoi)/1 and Turbo East/Leseru Block 1(Cheptabach)/57. The Grant was then issued to the Administrator on 4/03/2014.
2. The Administrator had also, through Messrs Chepkwony & Co. Advocates, filed the Summons dated 30/09/2013 seeking orders of injunction or perseveration to restrain the Objector, whom she termed a stranger, from, among others, entering or dealing with the parcels of land referred to.
3. The Objector, in her Replying Affidavit in response to the Application, filed through Messrs E.C. Rotich & Co. Advocates, denied that she is a stranger, and contended that the Administrator is her mother-in-law, as she (Objector) is the widow of the late Nicholas Kipchoge, the Administrator’s son, whom the Objector married under Nandi customary law in 2001, and with whom they were blessed with 3 children. She deponed that the deceased, as her husband’s father, and thus her father-in-law, participated in the marriage engagement ceremony, and that the parcel of land Turbo East/Sosian Block 1(Sugoi)/12 is her matrimonial home. She also deponed that one Hellen Jepkosgei listed in the Petition as a daughter of the deceased, is in fact, her (Objector’s) co-wife, whom the Administrator had, before the death of Nicholas Kipchoge, made to become Nicholas Kipchoge’s 2nd wife, and which actions almost “tore them apart”. The Objector then disclosed that she had some domestic disagreements with Nicholas Kipchoge and thus left the matrimonial home before he later died on 6/11/2011, and that during the burial, the Administrator declared that she will never recognize the Objector as Nicholas Kipchoge’s wife. She therefore denied invading the parcels of land, and reiterating that she was simply residing there as her matrimonial home. In the end, she urged that her children are heirs to the estate and should be considered beneficiaries, just like the children of her co-wife, the said Hellen Jepkosgei.
4. The Administrator then filed the Further Affidavit which she swore on 12/11/2023, in which she denied that the Objector is “a wife” to her (Administrator’s) son, Nicholas Kipchoge, and stated that although there was an intention for a marriage engagement ceremony, none took place, since Nicholas Kipchoge, instead, married the said Hellen Jepkosgei with whom he was blessed with 3 children. She however admitted that her late son had an affair with the Objector, which resulted into the birth of 2 children, all of whom were born out of wedlock. She maintained that at no time did the Objector and Nicholas Kipchoge ever live together, and that no dowry was ever paid. She also reiterated that the Objector forcefully entered into the parcel of land, Turbo East/Sosian Block 1(Sugoi)/1 and refused to leave, and that after the end of the Objector’s love affair with Nicholas Kipchoge in 2003, the Objector got married to one Nathan with whom the Objector got one child, and that Nicholas Kipchoge died on 7/11/2009, 6 years after his love affair with the Objector ended in 2003. She further observed that by the time Nicholas Kipchoge died, his father, the deceased herein, was still alive as the deceased died later on 11/01/2011. She further denied that the house in which the Objector lives is her matrimonial home, and contended that the house was constructed as a sleeping structure for the Administrator’s sons.
5. Be that as it may, the record shows that the Grant was subsequently confirmed on 31/07/2015 and a Certificate of Confirmation of Grant issued, with the Administrator named as the sole beneficiary of the entire said 2 parcels of land. Matters then went silent until 3 years later when the Objector filed the Summons for Revocation dated 24/05/2018, the subject hereof.
6. The Summons for Revocation is filed through Messrs Isiaho Sawe & Co. Advocates and is dated 24/05/2018. The orders sought are premised as follows:
i) [……….] spent
ii) […….....] spent
iii) That the Grant of Letters of Administration issued on 4th March, 2014 and subsequently confirmed on 2nd September, 2015 be annulled and/or revoked forthwith.
iv) That the Objector herein be made a Co-Administratrix and beneficiary of the estate of the deceased herein, AGUI CHUMO upon determination of this summons in her favour.
v) That the title deeds issued on the ground of misrepresentation and/or non-disclosure of material facts by the Petitioner be cancelled in the best interest of justice.
vi) That costs of this application be provided for.
7. In her Affidavit in support of the Summons, the Objector deponed that the Grant was obtained fraudulently, and by concealment from the Court of material facts, particularly as to the true legal beneficiaries and dependants of the estate of the deceased, and that consents by persons of equal or lesser priority were not obtained from all beneficiaries and dependants of the estate. She urged that this concealment of facts has led to a miscarriage of justice as she and her children have been disinherited. She averred that she has always had problems with the Administrator since she married her son, Nicholas Sawe, hence the bad faith on her part, and that the letter from the Chiefs’ letter used by the Administrator to obtain the Grant did not disclose all the beneficiaries of the deceased. She thus termed the letter a forgery as it bears a name that is different from the correct name of the Chief. According to her, the legitimate Chief of Sosiani Location is one Gilbert Songok, and not David Songok as indicated in the letter presented by the Administrator. She urged that the said legitimate Chief, Gilbert Songok confirmed that she (Objector) is the widow of the late Nicholas Cheboiywo Sawe, and one Hellen Jepkosgei is her co-wife. She thus insisted that the deceased herein is her father-in law thus making the Administrator her mother-in-law.
8. She further deponed that her late husband, Nicholas Cheboiywo Sawe is a beneficiary of the father’s estate. She then contended that the proceedings herein were filed and concluded without her inclusion. She also exhibited copies of her children’s respective Certificates of Birth and health cards indicating the late Nicholas Cheboiywo Sawe as the children’s father. She contended further that the Administrator, upon being registered as a trustee, upon confirmation of the Grant, moved to the Environment and Land Court (ELC) and filed Eldoret ELC Case No. 133 of 2016 seeking orders to evict the Objector from the parcel of land, L.R. No. Turbo East/Sosiani Block L (Sugoi)/12 which forms part of the estate, which, according to her, was a miscarriage of justice. She then exhibited a copy of the Judgment rendered in the said ELC case on 17/04/2017 whereof the Administrator was declared the owner of the said parcel of land and the Objector a trespasser, and a permanent injunction issued restraining the Objector from intermeddling, interfering, trespassing and/or in any other way adversely dealing with the land. The Objector contended that the Administrator misled the ELC by purporting that the said parcel of land was jointly purchased by the Administrator and the deceased, which fact the Administrator knew to be untrue. She deponed further that she has a life interest in her husbands’ estate, and that the trial Court was not informed of the beneficiary interest of her children in the estate during confirmation of the Grant hence leading to a miscarriage of justice, and that the Court was also not informed that her Application for Injunction dated 4/09/2013 had not, by the date of confirmation of the Grant, been heard and determined. According to her therefore, the status quo orders issued on 20/05/2014 are still in force herein. She however deponed that she is not opposed to her late husband’s estate being divided between her house and the house of her co-wife, the said Hellen Jepkosgei.
9. The Administrator in her Affidavit filed in response to the Summons for Revocation, and which she swore on 6/08/2018, contended that the Summons has been filed by a person who lacks the locus standi to the estate of her late husband, and contended that the Objector is not her co-wife and she thus cannot apply to be appointed a co-Administratrix to the estate of the deceased herein, the Administrator’s late husband. She reiterated that the Objector is a stranger as she is not a member of the family of the deceased, and also that the fact that the Objector had a love affair with the Administrator’s son does not entitle her to make a claim in the estate. She also urged that her son, Nicholas Kipchoge, did not survive the deceased, and that is why his name was not included in the Petition. She further insisted that the Objector never got married to her son, and observed that the Objector’s name did not even appear in the burial programme. She averred that in obtaining the Grant of Letters of Administration, she followed the requisite procedure to the latter, and that the Objector participated by filing objections which were unsuccessful. She confirmed that, as the Administrator and sole beneficiary, she has been registered as the owner of the 2 parcels of land and title deeds issued as such.
10. The parties also filed respective Witness Statements. I will briefly recount the same as they were adopted at the trial as the Witnesses’ evidence-in-chief.
Objector’s Witness Statements
11. The Objector, Nelly Jebor, filed the Witness Statement dated 24/05/2025 whose contents I do not deem it necessary to recount as it is basically a restatement of her case as already presented in her Affidavits and other pleadings referred to above.
12. Gilbert Songok filed the Statement dated 24/05/2018, in which he stated that he is the Chief, Sosiani Location since the year 2001. He confirmed that the deceased and the parties herein are from his Location, and are personally known to him, and that the deceased died by suicide. He stated that the deceased was married to 2 wives, namely, the Objector herein as the 1st wife, and Hellen Jepkosgei as the 2nd wife, that the Objector and the deceased lived together as a couple, and that the Objector and the Administrator herein, her mother-in-law, have always had differences on various issues. He also stated that he at one time got both the late Nicholas Kipkoech and the Objector arrested for neglecting and/or abandoning their children at the Chief’s office after having personal disputes.
13. Michael Kimaiyo Kitur filed the Witness Statement also dated 24/05/2018, and stated that the parties herein are personally known to him being his neighbours. He also stated that the late Nicholas Kipkoech was his good friend and married the Objector, that he attended the couple’s traditional marriage engagement ceremony as his best man, and that he is one who “talked him" to get married because he was drinking alcohol too much. He contended that the couple were blessed with 2 children and that the 1st born was born to them even before the engagement ceremony, and that Nicholas Kipkoech later married the said Hellen as a 2nd wife. He stated further that Nicholas Kipkoech resided with the Objector on land pointed out to them by the deceased herein, and it is when the couple differed and the Objector returned to her parent’s home that the Administrator took advantage of the situation and caused Nicholas Kipkoech to marry Hellen as a 2nd wife.
Administrator’s Witness Statements
14. The Administrator, Priscila Jesondin Chumo, filed the Witness Statement dated 22/06/2018 whose contents are basically also a restatement of her case already presented in her pleadings. For this reason, I will not recite the same. She however pronounced her doubts over the paternity of the Objector’s children and proposed the conduct of a DNA test. She also reiterated that the letter from Chief Gilbert Songok relied on by the Objector is not true as that particular Chief has an interest in the parcel of land herein which he wants to purchase. She also pointed out that it is the same Chief who had written for her the letters which she relied on to file the Petition herein. Regarding Hellen Jepkosgei appearing in her list of beneficiaries, she maintained that Hellen Jepkosgei is her last-born child.
15. Elisha Kipkorir Biwott who stated that the Administrator is his aunt, filed the Witness Statement dated 22/06/2018. He denied that Nicholas Sawe Chebaiywo, whom the Objector is claiming to have had children with married the Objector as no dowry was paid, the two never stayed together, and also that from 2013, the Objector has been residing on the Administrator’s land illegally. He, too, stated that the Chief’s letter relied on by the Objector is not true as that particular Chief has an interest in the matter.
16. Henry Kiptoo Murei who stated that he is a neighbour to the Administrator since 1970, filed the Witness Statement also dated 22/06/2018. He stated that the Objector was in Court when the Grant herein was issued to the Administrator, and also denied that the Objector was married to the Administrator’s son, Nicholas Sawe Chebaiywo. He, too, stated that he has no certainty that the Objector’s children were sired by Nicholas Sawe Chebaiywo. He stated that no ceremony was conducted in respect to the Objector’s alleged marriage, and that the Objector came to the parcel of land the subject hereof in 2013. He, too, stated that the Chief whose letter the Objector relies on is a friend of the Objector.
17. Kipkosgey Talam filed the Witness Statement also dated 22/06/2018 in which he stated that he is a brother to the deceased herein, Agui Chumo. He denied any knowledge of the Objector, whom he also denied was married to the Administrator’s son, or had any children with him. He stated further that they informed the Objector about this Succession Cause upon which she filed an Objection which was dismissed. He insisted that the Administrator’s son had only one wife, namely, Hellen Jepkosgei, and he, too, contended that the Objector never stayed with the Administrator’s son, nor was any dowry paid for her.
Hearing of the Summons for Revocation
18. It was then directed that the Summons for Revocation be set down for viva voce trial, which trial then commenced before me on 20/06/2023. The Objector called 3 witnesses while the Administrator called 4.
Objector’s Witnesses’ Testimonies
19. PW1 was the Objector, Nelly Jebor. Led by her Counsel, Ms. Isiaho, she adopted her Witness Statement and basically restated her case as already captured above. She maintained that the deceased was her father-in-law, and testified that her 2 children with her husband, the late Nicholas Kipkoech, were born in 2003 and 1995, respectively. She maintained that she was never notified of the filing of this Succession Cause, and was never involved in applying for the Letters of Administration. She then produced her supporting documents. Under cross-examination by Ms. Mutai, she insisted that the Administrator, as her mother-in-law, was present at her marriage engagement ceremony with Nicholas Kipkoech conducted in 2001, and fully participated therein, although she agreed that no cows were given out as dowry as the Administrator later changed her mind. She also insisted that she and Nicholas Kipkoech lived together on land belonging to the deceased, and stated that she gave birth to her 1st born child with Nicholas Kipkoech even before they got married, although the Administrator knew about the birth. She also reiterated that Gilbert Songok was the genuine Chief of the area, and denied being involved in any romantic relationship with him. In re-examination, she stated that even before the engagement ceremony, an earlier “introduction” ceremony known as “show-up” had already been conducted, in which the Administrator also fully participated.
20. PW2 was the said Gilbert Lelmengit Songok, who reiterated that he is the Chief, Sosiani Location since 2001, and who, too, adopted his Witness Statement. He confirmed that he was the author of both the letters dated 2/05/2014 and 4/08/2015, respectively, presented by the Objector. He agreed that in one of the letters, he stated that the said Nicholas Kipkoech had 2 wives, namely, Nelly Jebor and Hellen Jepkosgei, and both live on land belonging to the deceased. He also reiterated that he once solved a marital dispute between the Objector and the Nicholas Kipkoech as husband and wife, in respect to neglect of their children. In cross-examination, he denied being involved in any romantic relationship with the Objector.
21. PW3 was the said Michael Kimaiyo Kitur who, too, adopted his Witness Statement. He clarified that the late Nicholas Kipkoech was also known as “Nicholas Cheboiywo Sawe”, and reiterated that he was the best man during the “engagement” ceremony for Nicholas Sawe and the Objector, and that according to Kalenjin customary law, which they all belong to, after “engagement”, which is known as “koito” in the Kalenjin language, a woman is considered a wife, and after the ceremony, the couple goes home together. He agreed that Nicholas Kipkoech later married a 2nd wife. In cross-examination, he reiterated that he is a neighbour to the family of the deceased. He could not however recall how many people were present at the “engagement”, or who spoke, or give a clear narrative of how the ceremony was conducted. He could not also not tell the number of children that the deceased had. He then agreed that Nicholas Kipkoech and the Objector already had children by the time of the “engagement”.
Administrator’s Witness Testimonies
22. DW1 was the said Elisha Kipkorir Biwott. Led by the Administrator’s Counsel, Ms. Mutai, he adopted his Witness Statement whose contents he basically recounted. He reiterated that the Administrator is the wife to his uncle, the deceased herein. He termed the Objector as only a co-habiter, and stated that she was never officially married, as only a “show-up” ceremony was conducted, and that they never lived together. She stated that the Objector and Nicholas Kipchoge were residing at the local centre, and not on Nicholas Kipchoge’s father’s land. He also stated that the Objector never attended Nicholas Kipkoech’s burial as they were living apart before he died after briefly cohabiting, and that the Objector only returned about 5 years after his burial, and forcefully evicted the 2nd wife, Hellen, from the house. Under cross-examination by Ms. Isiaho, he agreed that he lives in Nandi while the family of the deceased lives in Sugoi, thus far away. He also confirmed that Hellen Jepkosgei is Nicholas Kipkoech’s 2nd wife, and not the Administrator’s daughter as alleged in the Petition.
23. DW2 was the Administrator, Priscilla Chumo, the wife to the deceased herein, Chumo Agui. She, too, adopted her Witness Statement and reiterated the matters stated therein, including her denial that the Objector was a wife to her late son. She reiterated that the only wife to his son was the said Hellen in respect to whom all marriage ceremonies were conducted. She reiterated that for the Objector, they only went for a “show up” and thus they never paid any dowry. About describing “Hellen Jepkosgei” as her daughter, she stated that she has 2 children who share that same name, one her biological daughter, and the other adopted. In cross-examination, she agreed that PW3 was a close friend to her late son Nicholas Kipchoge, and that since her son was an alcoholic, she asked PW3 to speak to him about getting married. She also agreed that the Objector got 2 children with her said son even before the alleged “marriage”, and that they lived together. She however reiterated that only a “show up” ceremony was conducted in respect to the Objector, which was hosted and held at the home of the Objector’s uncle. She also agreed that she did not include the Objector’s 2 children sired by her son in the list of beneficiaries. About some of her own children being left out in her list of survivors, she stated that it is the Chief who omitted the names of her dead children, including Nicholas Kipchoge. Regarding Hellen Jepkosgei, she conceded that although she was listed as her daughter, she was in fact her daughter-in-law. About the Chief’s letter she relied on bearing the name “David Songok” as the Chief, and not the correct name “Gilbert Songok”, she stated that she could not explain that discrepancy but confirmed that PW2 who testified herein was the Chief who gave her the letter. About her son and the Objector being arrested by the Chief, she stated that the reason was the fighting between them. At this point, I recorded that the witness appeared evidently evasive in answering some questions. When she continued, she maintained that the Objector was simply a girlfriend to her son, and that after they stopped dating, the Objector got married to another man. She however acknowledged that the Objector’s 2 children were sired by her son, and she also seemed to further acknowledge that her son did marry the Objector. She also agreed that it is the Objector who currently resides in the subject parcel of land. She then urged the Court to uphold the Judgment of the ELC in which she obtained orders directing the Objector to give her vacant possession thereof. She stated that the 2 children sired by her son will be entitled to inherit her son’s share of the estate once she distributes the same. In re-examination, she maintained that the Objector and her son were simply friends as they never got married. She also pointed out that this Succession Cause is about the estate of the deceased herein, Agui Chumo, and not Nicholas Kipkoech. Regarding the cause of disagreements between her son and the Objector, she eventually agreed that it was because of neglect of their children, but she denied any further knowledge of the matter as it was the deceased who reported the matter to the Chief.
24. DW3 was the said Henry Kiptoo Murei who also adopted his Witness Statement and reiterated that he is a neighbour to the family of the deceased. In cross-examination, he reiterated that the Objector and Nicholas Kipkoech were living with some children at the local Centre where they were operating a hotel. He denied that he had been promised any share of the land by the Administrator or that he had any interest in the matter. He termed a “show-up” ceremony as simply a preliminary “introduction” ceremony which may not necessarily end up into a marriage, and that it is “koito” which is the main marriage ceremony. According to him therefore, “show-up” without “koito” has no meaning. In response to a question from the Court, he stated that he could not tell whether the children he referred to as living with the couple were the couples.
25. DW4 was the said Simeon Kipkosgei Talam. He adopted his Witness Statement and reiterated that he is a cousin to the deceased, and that, therefore, the Administrator is his sister-in-law. In cross-examination, he stated that he could recall the Objector reporting Nicholas Kipchoge to the Chief and he denied any knowledge of what it was all about. He also denied any knowledge of the “show-up” or whether the couple had any children, or whether they lived on land belonging to the deceased. According to him however, Nicholas Kipkoech had rented a house at the Centre but he could not tell whether he lived there with the Objector. He agreed that before this Succession Cause was filed, a family meeting was convened to discuss the estate but agreed that the Objector did not attend as she was not notified about it. He however eventually agreed that the Objector was married to Nicholas Kipkoech and was actually the 1st wife, and Hellen the 2nd wife. He, too, denied that he had been promised a share of the land by the Administrator, or having any interest in the matter. In re-examination, he reiterated that the Objector only moved into Nicholas Kipkoech’s house after his death, and reitearted that Hellen Jepkoech was the only wife Nicholas Kipkoech married.
Written Submissions
26. Upon close of the trial, the parties filed Written Submissions. The Objector’s is dated 20/06/2025 while the Administrator’s is dated 22/06/2025.
Objector’s Submissions
27. Counsel for the Objector stated that they had abandoned prayers 2, 4 and 6 of the Summons for Revocation. Since prayer 2 was an interlocutory prayer which is now spent, and prayer 6 is only on costs, it means that the only substantive prayer abandoned is prayer 4 which seeks that the Objector be appointed a co-Administratrix of the estate of the deceased herein. Although the prayer also includes the plea that the Administrator be declared a beneficiary of the estate, I do not think that the abandonment extended to that portion of prayer 4. Counsel then reiterated that the Grant of Letters of Administration and its subsequent confirmation were obtained fraudulently and/or by concealment of material facts, particularly as to the Objector and her children being beneficiaries of the estate. She also contended that the Chief’s letter relied on by the Administrator was a forgery as it was issued by a fictitious person. She reiterated that the Objector got married to a son of the deceased, Nicholas Kipchoge, in the year 2001 under Kalenjin customary law and were blessed with 2 children as evidenced by the Certificate of Birth and health cards produced. Counsel also urged that the Administrator’s oral testimony was at variance with the contents of her Witness Statement and Replying Affidavit, particularly in regard to her late son Nicholas Kipkoech and the Objector cohabiting as husband and wife and getting 2 children, the Administrator’s attendance at the Objector’s “show-up” traditional ceremony, the fact of the Nicholas Kipkoech having 2 wives, namely the Objector as the 1st wife, and the fact of the Objector currently residing in the a parcel of land belonging to the deceased herein. He also termed the testimonies of the Administrator’s other witnesses as hearsay. On whether the Objector is Nicholas Kipkoech’s widow, Counsel relied on the principle of presumption of marriage arising from long cohabitation by a “couple”. She cited several authorities and submitted that the Administrator admitted that the Objector was staying with her late son, Nicholas Kipkoech before his death, that they begot 2 children from the relationship, and that they lived on a parcel of land belonging to the deceased during the deceased’s lifetime. She thus maintained that the Objector has proved her “dependency” to the estate of the deceased. in accordance with the provisions of Section 29 of the Law of Succession Act, and also observed that under the interpretational provision of the Act, namely, Section 3 thereof, “wife” includes a wife who is separated from her husband and that the terms “husband" and “spouse”, “widow" and “widower” shall have corresponding meaning.
Respondent’s Submissions
28. Counsel for the Administrator, too, cited Section 29 of the Law of Succession Act, and also the case of In Re-Estate of M’Muthania Mwendwa (Deceased) (2016) eKLR, and contended that the Objector does not fall in any category thereof as a “dependant” as she was not “a wife” nor “a former wife” of Agui Chuma, the deceased herein, and she did not also produce any evidence to demonstrate that her children - the deceased’s grandchildren - were being maintained by the deceased prior to his death. She submitted that in law, it is not the mere relationship that matters but proof of “dependency” She cited several cases, including Amina Munini v Margaret Nzambi [1984] eKLR and also Hortensiah Wanjiku Yawe vs The Public Trustee. Regarding the Objector’s allegation of long cohabitation, Counsel cited the Objector’s testimony that she began cohabiting with the deceased's son from 21/10/2001, and that they resided in a parcel of land belonging to Agui Chumo, the deceased herein. She averred that Nicholas Kipchoge Sawe did not own that parcel of land, and that the Objector should therefore direct her claims to the estate of the son, Nicholas Kipchoge. Regarding the prayer for revocation of the Grant, Counsel cited the provisions of Section 76 of the Law of Succession Act, and observed that the Summons for Revocation, as crafted, appears to challenge distribution of the estate, and not the process of issuing the Grant itself. She however denied that there was any misrepresentation on the Administrator’s part, and if any, the same was not about a point of law or fact essential to the Grant, and that all requisite procedures were followed. She cited the case of In re Estate of Musa Rengo Nabiswa (Deceased), and also In re Estate of Prisca Ongayo Nande (Deceased) (2020) eKLR. According to her therefore, the Objector has failed to prove that the Grant was obtained by making of false statements. She also submitted that at the time that the Grant was confirmed, all the beneficiaries were present in Court, and the Objector was also present, and thus, the prayer for revocation thereof is an afterthought.
Determination
29. The broad issues that arise for determination herein are evidently the following:
i) Whether the Objector is entitled to share in distribution of the estate of the deceased herein as a daughter-in-law.
ii) Whether the Grant of Letters of Administration issued and confirmed herein should be revoked
30. It is apparent that the Objector’s claim that she was “a wife” of a son of the deceased having undergone a customary marriage under the Kalenjin traditions has been strenuously refuted by the Administrator. The Objector admits that
[...truncated]
2. The Administrator had also, through Messrs Chepkwony & Co. Advocates, filed the Summons dated 30/09/2013 seeking orders of injunction or perseveration to restrain the Objector, whom she termed a stranger, from, among others, entering or dealing with the parcels of land referred to.
3. The Objector, in her Replying Affidavit in response to the Application, filed through Messrs E.C. Rotich & Co. Advocates, denied that she is a stranger, and contended that the Administrator is her mother-in-law, as she (Objector) is the widow of the late Nicholas Kipchoge, the Administrator’s son, whom the Objector married under Nandi customary law in 2001, and with whom they were blessed with 3 children. She deponed that the deceased, as her husband’s father, and thus her father-in-law, participated in the marriage engagement ceremony, and that the parcel of land Turbo East/Sosian Block 1(Sugoi)/12 is her matrimonial home. She also deponed that one Hellen Jepkosgei listed in the Petition as a daughter of the deceased, is in fact, her (Objector’s) co-wife, whom the Administrator had, before the death of Nicholas Kipchoge, made to become Nicholas Kipchoge’s 2nd wife, and which actions almost “tore them apart”. The Objector then disclosed that she had some domestic disagreements with Nicholas Kipchoge and thus left the matrimonial home before he later died on 6/11/2011, and that during the burial, the Administrator declared that she will never recognize the Objector as Nicholas Kipchoge’s wife. She therefore denied invading the parcels of land, and reiterating that she was simply residing there as her matrimonial home. In the end, she urged that her children are heirs to the estate and should be considered beneficiaries, just like the children of her co-wife, the said Hellen Jepkosgei.
4. The Administrator then filed the Further Affidavit which she swore on 12/11/2023, in which she denied that the Objector is “a wife” to her (Administrator’s) son, Nicholas Kipchoge, and stated that although there was an intention for a marriage engagement ceremony, none took place, since Nicholas Kipchoge, instead, married the said Hellen Jepkosgei with whom he was blessed with 3 children. She however admitted that her late son had an affair with the Objector, which resulted into the birth of 2 children, all of whom were born out of wedlock. She maintained that at no time did the Objector and Nicholas Kipchoge ever live together, and that no dowry was ever paid. She also reiterated that the Objector forcefully entered into the parcel of land, Turbo East/Sosian Block 1(Sugoi)/1 and refused to leave, and that after the end of the Objector’s love affair with Nicholas Kipchoge in 2003, the Objector got married to one Nathan with whom the Objector got one child, and that Nicholas Kipchoge died on 7/11/2009, 6 years after his love affair with the Objector ended in 2003. She further observed that by the time Nicholas Kipchoge died, his father, the deceased herein, was still alive as the deceased died later on 11/01/2011. She further denied that the house in which the Objector lives is her matrimonial home, and contended that the house was constructed as a sleeping structure for the Administrator’s sons.
5. Be that as it may, the record shows that the Grant was subsequently confirmed on 31/07/2015 and a Certificate of Confirmation of Grant issued, with the Administrator named as the sole beneficiary of the entire said 2 parcels of land. Matters then went silent until 3 years later when the Objector filed the Summons for Revocation dated 24/05/2018, the subject hereof.
6. The Summons for Revocation is filed through Messrs Isiaho Sawe & Co. Advocates and is dated 24/05/2018. The orders sought are premised as follows:
i) [……….] spent
ii) […….....] spent
iii) That the Grant of Letters of Administration issued on 4th March, 2014 and subsequently confirmed on 2nd September, 2015 be annulled and/or revoked forthwith.
iv) That the Objector herein be made a Co-Administratrix and beneficiary of the estate of the deceased herein, AGUI CHUMO upon determination of this summons in her favour.
v) That the title deeds issued on the ground of misrepresentation and/or non-disclosure of material facts by the Petitioner be cancelled in the best interest of justice.
vi) That costs of this application be provided for.
7. In her Affidavit in support of the Summons, the Objector deponed that the Grant was obtained fraudulently, and by concealment from the Court of material facts, particularly as to the true legal beneficiaries and dependants of the estate of the deceased, and that consents by persons of equal or lesser priority were not obtained from all beneficiaries and dependants of the estate. She urged that this concealment of facts has led to a miscarriage of justice as she and her children have been disinherited. She averred that she has always had problems with the Administrator since she married her son, Nicholas Sawe, hence the bad faith on her part, and that the letter from the Chiefs’ letter used by the Administrator to obtain the Grant did not disclose all the beneficiaries of the deceased. She thus termed the letter a forgery as it bears a name that is different from the correct name of the Chief. According to her, the legitimate Chief of Sosiani Location is one Gilbert Songok, and not David Songok as indicated in the letter presented by the Administrator. She urged that the said legitimate Chief, Gilbert Songok confirmed that she (Objector) is the widow of the late Nicholas Cheboiywo Sawe, and one Hellen Jepkosgei is her co-wife. She thus insisted that the deceased herein is her father-in law thus making the Administrator her mother-in-law.
8. She further deponed that her late husband, Nicholas Cheboiywo Sawe is a beneficiary of the father’s estate. She then contended that the proceedings herein were filed and concluded without her inclusion. She also exhibited copies of her children’s respective Certificates of Birth and health cards indicating the late Nicholas Cheboiywo Sawe as the children’s father. She contended further that the Administrator, upon being registered as a trustee, upon confirmation of the Grant, moved to the Environment and Land Court (ELC) and filed Eldoret ELC Case No. 133 of 2016 seeking orders to evict the Objector from the parcel of land, L.R. No. Turbo East/Sosiani Block L (Sugoi)/12 which forms part of the estate, which, according to her, was a miscarriage of justice. She then exhibited a copy of the Judgment rendered in the said ELC case on 17/04/2017 whereof the Administrator was declared the owner of the said parcel of land and the Objector a trespasser, and a permanent injunction issued restraining the Objector from intermeddling, interfering, trespassing and/or in any other way adversely dealing with the land. The Objector contended that the Administrator misled the ELC by purporting that the said parcel of land was jointly purchased by the Administrator and the deceased, which fact the Administrator knew to be untrue. She deponed further that she has a life interest in her husbands’ estate, and that the trial Court was not informed of the beneficiary interest of her children in the estate during confirmation of the Grant hence leading to a miscarriage of justice, and that the Court was also not informed that her Application for Injunction dated 4/09/2013 had not, by the date of confirmation of the Grant, been heard and determined. According to her therefore, the status quo orders issued on 20/05/2014 are still in force herein. She however deponed that she is not opposed to her late husband’s estate being divided between her house and the house of her co-wife, the said Hellen Jepkosgei.
9. The Administrator in her Affidavit filed in response to the Summons for Revocation, and which she swore on 6/08/2018, contended that the Summons has been filed by a person who lacks the locus standi to the estate of her late husband, and contended that the Objector is not her co-wife and she thus cannot apply to be appointed a co-Administratrix to the estate of the deceased herein, the Administrator’s late husband. She reiterated that the Objector is a stranger as she is not a member of the family of the deceased, and also that the fact that the Objector had a love affair with the Administrator’s son does not entitle her to make a claim in the estate. She also urged that her son, Nicholas Kipchoge, did not survive the deceased, and that is why his name was not included in the Petition. She further insisted that the Objector never got married to her son, and observed that the Objector’s name did not even appear in the burial programme. She averred that in obtaining the Grant of Letters of Administration, she followed the requisite procedure to the latter, and that the Objector participated by filing objections which were unsuccessful. She confirmed that, as the Administrator and sole beneficiary, she has been registered as the owner of the 2 parcels of land and title deeds issued as such.
10. The parties also filed respective Witness Statements. I will briefly recount the same as they were adopted at the trial as the Witnesses’ evidence-in-chief.
Objector’s Witness Statements
11. The Objector, Nelly Jebor, filed the Witness Statement dated 24/05/2025 whose contents I do not deem it necessary to recount as it is basically a restatement of her case as already presented in her Affidavits and other pleadings referred to above.
12. Gilbert Songok filed the Statement dated 24/05/2018, in which he stated that he is the Chief, Sosiani Location since the year 2001. He confirmed that the deceased and the parties herein are from his Location, and are personally known to him, and that the deceased died by suicide. He stated that the deceased was married to 2 wives, namely, the Objector herein as the 1st wife, and Hellen Jepkosgei as the 2nd wife, that the Objector and the deceased lived together as a couple, and that the Objector and the Administrator herein, her mother-in-law, have always had differences on various issues. He also stated that he at one time got both the late Nicholas Kipkoech and the Objector arrested for neglecting and/or abandoning their children at the Chief’s office after having personal disputes.
13. Michael Kimaiyo Kitur filed the Witness Statement also dated 24/05/2018, and stated that the parties herein are personally known to him being his neighbours. He also stated that the late Nicholas Kipkoech was his good friend and married the Objector, that he attended the couple’s traditional marriage engagement ceremony as his best man, and that he is one who “talked him" to get married because he was drinking alcohol too much. He contended that the couple were blessed with 2 children and that the 1st born was born to them even before the engagement ceremony, and that Nicholas Kipkoech later married the said Hellen as a 2nd wife. He stated further that Nicholas Kipkoech resided with the Objector on land pointed out to them by the deceased herein, and it is when the couple differed and the Objector returned to her parent’s home that the Administrator took advantage of the situation and caused Nicholas Kipkoech to marry Hellen as a 2nd wife.
Administrator’s Witness Statements
14. The Administrator, Priscila Jesondin Chumo, filed the Witness Statement dated 22/06/2018 whose contents are basically also a restatement of her case already presented in her pleadings. For this reason, I will not recite the same. She however pronounced her doubts over the paternity of the Objector’s children and proposed the conduct of a DNA test. She also reiterated that the letter from Chief Gilbert Songok relied on by the Objector is not true as that particular Chief has an interest in the parcel of land herein which he wants to purchase. She also pointed out that it is the same Chief who had written for her the letters which she relied on to file the Petition herein. Regarding Hellen Jepkosgei appearing in her list of beneficiaries, she maintained that Hellen Jepkosgei is her last-born child.
15. Elisha Kipkorir Biwott who stated that the Administrator is his aunt, filed the Witness Statement dated 22/06/2018. He denied that Nicholas Sawe Chebaiywo, whom the Objector is claiming to have had children with married the Objector as no dowry was paid, the two never stayed together, and also that from 2013, the Objector has been residing on the Administrator’s land illegally. He, too, stated that the Chief’s letter relied on by the Objector is not true as that particular Chief has an interest in the matter.
16. Henry Kiptoo Murei who stated that he is a neighbour to the Administrator since 1970, filed the Witness Statement also dated 22/06/2018. He stated that the Objector was in Court when the Grant herein was issued to the Administrator, and also denied that the Objector was married to the Administrator’s son, Nicholas Sawe Chebaiywo. He, too, stated that he has no certainty that the Objector’s children were sired by Nicholas Sawe Chebaiywo. He stated that no ceremony was conducted in respect to the Objector’s alleged marriage, and that the Objector came to the parcel of land the subject hereof in 2013. He, too, stated that the Chief whose letter the Objector relies on is a friend of the Objector.
17. Kipkosgey Talam filed the Witness Statement also dated 22/06/2018 in which he stated that he is a brother to the deceased herein, Agui Chumo. He denied any knowledge of the Objector, whom he also denied was married to the Administrator’s son, or had any children with him. He stated further that they informed the Objector about this Succession Cause upon which she filed an Objection which was dismissed. He insisted that the Administrator’s son had only one wife, namely, Hellen Jepkosgei, and he, too, contended that the Objector never stayed with the Administrator’s son, nor was any dowry paid for her.
Hearing of the Summons for Revocation
18. It was then directed that the Summons for Revocation be set down for viva voce trial, which trial then commenced before me on 20/06/2023. The Objector called 3 witnesses while the Administrator called 4.
Objector’s Witnesses’ Testimonies
19. PW1 was the Objector, Nelly Jebor. Led by her Counsel, Ms. Isiaho, she adopted her Witness Statement and basically restated her case as already captured above. She maintained that the deceased was her father-in-law, and testified that her 2 children with her husband, the late Nicholas Kipkoech, were born in 2003 and 1995, respectively. She maintained that she was never notified of the filing of this Succession Cause, and was never involved in applying for the Letters of Administration. She then produced her supporting documents. Under cross-examination by Ms. Mutai, she insisted that the Administrator, as her mother-in-law, was present at her marriage engagement ceremony with Nicholas Kipkoech conducted in 2001, and fully participated therein, although she agreed that no cows were given out as dowry as the Administrator later changed her mind. She also insisted that she and Nicholas Kipkoech lived together on land belonging to the deceased, and stated that she gave birth to her 1st born child with Nicholas Kipkoech even before they got married, although the Administrator knew about the birth. She also reiterated that Gilbert Songok was the genuine Chief of the area, and denied being involved in any romantic relationship with him. In re-examination, she stated that even before the engagement ceremony, an earlier “introduction” ceremony known as “show-up” had already been conducted, in which the Administrator also fully participated.
20. PW2 was the said Gilbert Lelmengit Songok, who reiterated that he is the Chief, Sosiani Location since 2001, and who, too, adopted his Witness Statement. He confirmed that he was the author of both the letters dated 2/05/2014 and 4/08/2015, respectively, presented by the Objector. He agreed that in one of the letters, he stated that the said Nicholas Kipkoech had 2 wives, namely, Nelly Jebor and Hellen Jepkosgei, and both live on land belonging to the deceased. He also reiterated that he once solved a marital dispute between the Objector and the Nicholas Kipkoech as husband and wife, in respect to neglect of their children. In cross-examination, he denied being involved in any romantic relationship with the Objector.
21. PW3 was the said Michael Kimaiyo Kitur who, too, adopted his Witness Statement. He clarified that the late Nicholas Kipkoech was also known as “Nicholas Cheboiywo Sawe”, and reiterated that he was the best man during the “engagement” ceremony for Nicholas Sawe and the Objector, and that according to Kalenjin customary law, which they all belong to, after “engagement”, which is known as “koito” in the Kalenjin language, a woman is considered a wife, and after the ceremony, the couple goes home together. He agreed that Nicholas Kipkoech later married a 2nd wife. In cross-examination, he reiterated that he is a neighbour to the family of the deceased. He could not however recall how many people were present at the “engagement”, or who spoke, or give a clear narrative of how the ceremony was conducted. He could not also not tell the number of children that the deceased had. He then agreed that Nicholas Kipkoech and the Objector already had children by the time of the “engagement”.
Administrator’s Witness Testimonies
22. DW1 was the said Elisha Kipkorir Biwott. Led by the Administrator’s Counsel, Ms. Mutai, he adopted his Witness Statement whose contents he basically recounted. He reiterated that the Administrator is the wife to his uncle, the deceased herein. He termed the Objector as only a co-habiter, and stated that she was never officially married, as only a “show-up” ceremony was conducted, and that they never lived together. She stated that the Objector and Nicholas Kipchoge were residing at the local centre, and not on Nicholas Kipchoge’s father’s land. He also stated that the Objector never attended Nicholas Kipkoech’s burial as they were living apart before he died after briefly cohabiting, and that the Objector only returned about 5 years after his burial, and forcefully evicted the 2nd wife, Hellen, from the house. Under cross-examination by Ms. Isiaho, he agreed that he lives in Nandi while the family of the deceased lives in Sugoi, thus far away. He also confirmed that Hellen Jepkosgei is Nicholas Kipkoech’s 2nd wife, and not the Administrator’s daughter as alleged in the Petition.
23. DW2 was the Administrator, Priscilla Chumo, the wife to the deceased herein, Chumo Agui. She, too, adopted her Witness Statement and reiterated the matters stated therein, including her denial that the Objector was a wife to her late son. She reiterated that the only wife to his son was the said Hellen in respect to whom all marriage ceremonies were conducted. She reiterated that for the Objector, they only went for a “show up” and thus they never paid any dowry. About describing “Hellen Jepkosgei” as her daughter, she stated that she has 2 children who share that same name, one her biological daughter, and the other adopted. In cross-examination, she agreed that PW3 was a close friend to her late son Nicholas Kipchoge, and that since her son was an alcoholic, she asked PW3 to speak to him about getting married. She also agreed that the Objector got 2 children with her said son even before the alleged “marriage”, and that they lived together. She however reiterated that only a “show up” ceremony was conducted in respect to the Objector, which was hosted and held at the home of the Objector’s uncle. She also agreed that she did not include the Objector’s 2 children sired by her son in the list of beneficiaries. About some of her own children being left out in her list of survivors, she stated that it is the Chief who omitted the names of her dead children, including Nicholas Kipchoge. Regarding Hellen Jepkosgei, she conceded that although she was listed as her daughter, she was in fact her daughter-in-law. About the Chief’s letter she relied on bearing the name “David Songok” as the Chief, and not the correct name “Gilbert Songok”, she stated that she could not explain that discrepancy but confirmed that PW2 who testified herein was the Chief who gave her the letter. About her son and the Objector being arrested by the Chief, she stated that the reason was the fighting between them. At this point, I recorded that the witness appeared evidently evasive in answering some questions. When she continued, she maintained that the Objector was simply a girlfriend to her son, and that after they stopped dating, the Objector got married to another man. She however acknowledged that the Objector’s 2 children were sired by her son, and she also seemed to further acknowledge that her son did marry the Objector. She also agreed that it is the Objector who currently resides in the subject parcel of land. She then urged the Court to uphold the Judgment of the ELC in which she obtained orders directing the Objector to give her vacant possession thereof. She stated that the 2 children sired by her son will be entitled to inherit her son’s share of the estate once she distributes the same. In re-examination, she maintained that the Objector and her son were simply friends as they never got married. She also pointed out that this Succession Cause is about the estate of the deceased herein, Agui Chumo, and not Nicholas Kipkoech. Regarding the cause of disagreements between her son and the Objector, she eventually agreed that it was because of neglect of their children, but she denied any further knowledge of the matter as it was the deceased who reported the matter to the Chief.
24. DW3 was the said Henry Kiptoo Murei who also adopted his Witness Statement and reiterated that he is a neighbour to the family of the deceased. In cross-examination, he reiterated that the Objector and Nicholas Kipkoech were living with some children at the local Centre where they were operating a hotel. He denied that he had been promised any share of the land by the Administrator or that he had any interest in the matter. He termed a “show-up” ceremony as simply a preliminary “introduction” ceremony which may not necessarily end up into a marriage, and that it is “koito” which is the main marriage ceremony. According to him therefore, “show-up” without “koito” has no meaning. In response to a question from the Court, he stated that he could not tell whether the children he referred to as living with the couple were the couples.
25. DW4 was the said Simeon Kipkosgei Talam. He adopted his Witness Statement and reiterated that he is a cousin to the deceased, and that, therefore, the Administrator is his sister-in-law. In cross-examination, he stated that he could recall the Objector reporting Nicholas Kipchoge to the Chief and he denied any knowledge of what it was all about. He also denied any knowledge of the “show-up” or whether the couple had any children, or whether they lived on land belonging to the deceased. According to him however, Nicholas Kipkoech had rented a house at the Centre but he could not tell whether he lived there with the Objector. He agreed that before this Succession Cause was filed, a family meeting was convened to discuss the estate but agreed that the Objector did not attend as she was not notified about it. He however eventually agreed that the Objector was married to Nicholas Kipkoech and was actually the 1st wife, and Hellen the 2nd wife. He, too, denied that he had been promised a share of the land by the Administrator, or having any interest in the matter. In re-examination, he reiterated that the Objector only moved into Nicholas Kipkoech’s house after his death, and reitearted that Hellen Jepkoech was the only wife Nicholas Kipkoech married.
Written Submissions
26. Upon close of the trial, the parties filed Written Submissions. The Objector’s is dated 20/06/2025 while the Administrator’s is dated 22/06/2025.
Objector’s Submissions
27. Counsel for the Objector stated that they had abandoned prayers 2, 4 and 6 of the Summons for Revocation. Since prayer 2 was an interlocutory prayer which is now spent, and prayer 6 is only on costs, it means that the only substantive prayer abandoned is prayer 4 which seeks that the Objector be appointed a co-Administratrix of the estate of the deceased herein. Although the prayer also includes the plea that the Administrator be declared a beneficiary of the estate, I do not think that the abandonment extended to that portion of prayer 4. Counsel then reiterated that the Grant of Letters of Administration and its subsequent confirmation were obtained fraudulently and/or by concealment of material facts, particularly as to the Objector and her children being beneficiaries of the estate. She also contended that the Chief’s letter relied on by the Administrator was a forgery as it was issued by a fictitious person. She reiterated that the Objector got married to a son of the deceased, Nicholas Kipchoge, in the year 2001 under Kalenjin customary law and were blessed with 2 children as evidenced by the Certificate of Birth and health cards produced. Counsel also urged that the Administrator’s oral testimony was at variance with the contents of her Witness Statement and Replying Affidavit, particularly in regard to her late son Nicholas Kipkoech and the Objector cohabiting as husband and wife and getting 2 children, the Administrator’s attendance at the Objector’s “show-up” traditional ceremony, the fact of the Nicholas Kipkoech having 2 wives, namely the Objector as the 1st wife, and the fact of the Objector currently residing in the a parcel of land belonging to the deceased herein. He also termed the testimonies of the Administrator’s other witnesses as hearsay. On whether the Objector is Nicholas Kipkoech’s widow, Counsel relied on the principle of presumption of marriage arising from long cohabitation by a “couple”. She cited several authorities and submitted that the Administrator admitted that the Objector was staying with her late son, Nicholas Kipkoech before his death, that they begot 2 children from the relationship, and that they lived on a parcel of land belonging to the deceased during the deceased’s lifetime. She thus maintained that the Objector has proved her “dependency” to the estate of the deceased. in accordance with the provisions of Section 29 of the Law of Succession Act, and also observed that under the interpretational provision of the Act, namely, Section 3 thereof, “wife” includes a wife who is separated from her husband and that the terms “husband" and “spouse”, “widow" and “widower” shall have corresponding meaning.
Respondent’s Submissions
28. Counsel for the Administrator, too, cited Section 29 of the Law of Succession Act, and also the case of In Re-Estate of M’Muthania Mwendwa (Deceased) (2016) eKLR, and contended that the Objector does not fall in any category thereof as a “dependant” as she was not “a wife” nor “a former wife” of Agui Chuma, the deceased herein, and she did not also produce any evidence to demonstrate that her children - the deceased’s grandchildren - were being maintained by the deceased prior to his death. She submitted that in law, it is not the mere relationship that matters but proof of “dependency” She cited several cases, including Amina Munini v Margaret Nzambi [1984] eKLR and also Hortensiah Wanjiku Yawe vs The Public Trustee. Regarding the Objector’s allegation of long cohabitation, Counsel cited the Objector’s testimony that she began cohabiting with the deceased's son from 21/10/2001, and that they resided in a parcel of land belonging to Agui Chumo, the deceased herein. She averred that Nicholas Kipchoge Sawe did not own that parcel of land, and that the Objector should therefore direct her claims to the estate of the son, Nicholas Kipchoge. Regarding the prayer for revocation of the Grant, Counsel cited the provisions of Section 76 of the Law of Succession Act, and observed that the Summons for Revocation, as crafted, appears to challenge distribution of the estate, and not the process of issuing the Grant itself. She however denied that there was any misrepresentation on the Administrator’s part, and if any, the same was not about a point of law or fact essential to the Grant, and that all requisite procedures were followed. She cited the case of In re Estate of Musa Rengo Nabiswa (Deceased), and also In re Estate of Prisca Ongayo Nande (Deceased) (2020) eKLR. According to her therefore, the Objector has failed to prove that the Grant was obtained by making of false statements. She also submitted that at the time that the Grant was confirmed, all the beneficiaries were present in Court, and the Objector was also present, and thus, the prayer for revocation thereof is an afterthought.
Determination
29. The broad issues that arise for determination herein are evidently the following:
i) Whether the Objector is entitled to share in distribution of the estate of the deceased herein as a daughter-in-law.
ii) Whether the Grant of Letters of Administration issued and confirmed herein should be revoked
30. It is apparent that the Objector’s claim that she was “a wife” of a son of the deceased having undergone a customary marriage under the Kalenjin traditions has been strenuously refuted by the Administrator. The Objector admits that
[...truncated]