A. INTRODUCTION
1. This judgment relates to the objection to the making of a grant of letters of administration intestate in respect of the estate of the late Osiemo Mayunga (hereinafter “the deceased”) filed by Sabina Bisieri Osiemo vide summons for revocation of grant dated 4.12.2019.
2. The objection challenges both the process leading to the petition and the mode of distribution adopted in the confirmed grant dated 14.2.14 , principally on the grounds of non-disclosure of all beneficiaries and inequitable allocation of the estate.
B. BACKGROUND
3. The deceased died intestate on 15.8.1998. The petitioner moved this Court for letters of administration, describing himself/herself as the deceased's wife.
4. The objector subsequently lodged an objection pursuant to section 76 of the Law of Succession Act and Rule 44 of the Probate and Administration Rules, contending that:
1. The deceased married 3 wives, i.e., Nyangarisa , Nyanchama Osiemo and herself as the 3rd wife .
2. The Nyanchama was not blessed with sons, and she chose to marry Yunia Bosibori under Gusii customary law to have sons.
3. The petition is defective for failure to disclose all beneficiaries as required under section 51(2)(g) of the Act;
b. The objector 3RD wife to the deceased and her children, Evans Mochumbe Osiemo , Samuel Mokaya Osiemo , Francis Osiemo and Richard Osiemo were excluded;
c. The succession cause herein is a sham and contrary to the law.
4. The objector testified as Sabina Bisieri (Pw1), who adduced evidence attesting to her customary marriage with the deceased and to the fact that her marriage was blessed with 8 children. She said the deceased settled her on the lower portion of the land parcel, no. Bosinage 140, while the petitioner was settled on the upper portion, which was slightly larger than hers. She accused the petitioner of demolishing her house while she was away in Maasai land after the death of the deceased. She alleges exclusion from the succession process. Her witnesses, Joseph Makori (pw2), a cousin to the deceased, corroborated her marital status and confirmed her prior occupation and subsequent eviction from the land in dispute.he said he witnessed the deceased subdivide the land into two plots for the houses of Nyanchama and Sabina and that Sabina used to plant maize on the land herein until she was chased from that land . He said that Sabina and Yunia have lived in the Maasai land for a long time, and that Yunia returned home earlier and started ploughing the land. Also, the house of Sabina was demolished . PW3 Omweri Oroni said the deceased was his uncle and that he had 3 wives: Nyangarisa, Nyanchama, and Sabina. He said Nyanchama married Yunia to sire children for her boys under the Gusii customary law, and that the house of Sabina was demolished by Yunia's children.
5. The petitioner opposed the objection and urged the Court to confirm the grant to the identified beneficiaries . Also, that she inherited the land from a deceased husband of Nyanchama, who married her to sire her boys under Gusii customary law. She testified as DW1 and said she was married to Nyanchama, the wife of Osiemo Mayunga, under Gusii customary law. She claimed that the late Osiemo gave her a land parcel, which is the estate of the deceased herein. On examination, she admitted that Nyanchama had six daughters and that she did not provide them in succession for a reason. She said she first saw Sabina in court and denied knowing her or her children.
6. Protus Mogunde Ombiro, the chief of Bosinange location(Dw2), testified herein and recognised Yunia and Sabina as related to Osiemo. He said that Sabina lived in Maasai land with her children, whom she sired with Osiemo, who was present in court. Also, Sabian's marriage was meant to be Osiemo's, intended to maintain family lineage. Also, Yunia currently lives with a neighbour (Pw2) . He said that Yunia and Sabina live in Maasai land, and that Yunia was brought in by Nyanchama to ensure continuity of her generation. She later moved Bosinange from the Maasai land and began developing it, and Sabina later followed, also demanding land. He referred the case to the chief and said that the thatched grass house of Sabina was pulled down.
C. ISSUES FOR DETERMINATION
6. The issues arising ing for determination are:
i. Whether the petitioner made full and frank disclosure of all beneficiaries;
ii. Who are the lawful beneficiaries of the estate?
iii. What is the appropriate mode of distribution?
iv. What orders should issue?
D. LEGAL FRAMEWORK
7. This dispute is governed by the Law of Succession Act, Cap 160, particularly:
(a) Section 51(2)(g) – which obligates petitioners to disclose all survivors/beneficiaries of the estate of the deceased . The same provides that:- in cases of total or partial intestacy, the names and addresses of all surviving spouses, children, parents, brothers and sisters of the deceased, and of the children of any child of his or hers then deceased;
Section 66 – provides for preference in appointment of administrators to wit ; 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:
8. Section 76 – provides for revocation of grant;-
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;
9. Sections 40 –provides that ;- (1)Where an intestate has married more than once under any system of law permitting polygamy, his personal and household effects and the residue of the net intestate estate shall, in the first instance, be divided among the houses according to the number of children in each house, but also adding any wife surviving him as an additional unit to the number of children.
(2) The distribution of the personal and household effects and the residue of the net intestate estate within each house shall then be in accordance with the rules set out in sections 35 to 38.
10. Section 29 of the Law of Succession Act defines a dependant as follows ;- For the purposes of this Part, "dependant" means—
(a) the wife or wives, or former wife or wives, and the children of the deceased whether or not maintained by the deceased immediately prior to his death;
(b) such of the deceased's parents, step-parents, grandparents, grandchildren, step-children, children whom the deceased had taken into his family as his own, brothers and sisters, and half-brothers and half-sisters, as were being maintained by the deceased immediately prior to his death; and
(c) where the deceased was a woman, her husband if he was being maintained by her immediately prior to the date of her death.
11. Article 27 of the Constitution of Kenya provides for non-discrimination of all persons on grounds of gender, race, status, etc. This applies to every aspect, including succession proceedings.
E. ANALYSIS
i. Whether the petitioner made full and frank disclosure of all beneficiaries
12.The objector alleged that the petitioner did not make a full disclosure of the survivors / beneficiaries . She alleged that she and her children were left out of the succession cause . The petitioner said she was the survivor of the deceased, who left the land parcel no. South Mugirango / Bosinange / 140 to the house of Nyanchama and her children, while the house of Nyangarisa was gifted a land parcel no. South Mugirango / Bosinange / 141 intervivos. The law imposes a mandatory duty on a petitioner to disclose all surviving spouses and children of the deceased.
13.In In re Estate of M’Ngarithi M’Miriti (Deceased) [2017] eKLR, the Court held that non-disclosure of beneficiaries constitutes a material defect and renders a grant liable to revocation.
14.Similarly, in In re Estate of G.K.K (Deceased) [2017] eKLR, the Court emphasised that concealment of material facts undermines the integrity of succession proceedings.
15.In the present case, though the petitioner denies knowing the objector, upon considering the evidence of the objector , Pw2, Pw3 , the petitioner and the area chief , the evidence of Pw1 was supported by the firm evidence of Pw2, Pw3 and the chief Dw2, who described the objector as a 3rd wife to the deceased and the petitioner as a customary wife to Nyanchama, the wife of the deceased . It has emerged that she lived in the Maasai land with the deceased before his death, and she also had a home in the Bosinage land parcel no. 140, which was pulled down by the petitioner, and this has not been controverted. The objector has proved on a balance of probability that she is, in fact, the deceased's 3rd wife.
16.The courts are usually guided by the Chief's letters in identifying survivors and beneficiaries of deceased persons. The chief's letter dated 12.9.2011, presented by the petitioner herein, indicated that the deceased left a land parcel, Bosinange/140, to the petitioner and her sons, Thomas Osiemo, Stephen Oendo Osiemo, Benard Bundi Osiemo, and Paul Osiemo. The said letter does not indicate the relationship of the petitioner to the deceased or whether he was survived by other wives or children. It is clear that this letter was drawn with the intent to defeat the interests of other survivors of the deceased, as the 1st house of the deceased and his daughters from the 2nd house were not included in the same. This omission of the 1st house , the objector and her children ,the daughters to Nyanchama, is neither inadvertent nor trivial. It goes to the root of the petition and offends section 51(2)(g) of the Act, as disclosure of the survivors is mandatory whether they are beneficiaries or not, succession being a birthright, and the court has to satisfy itself that no beneficiary has been left out.
ii. Whether the grant should be revoked
17. On whether the conditions of section 76 of the Law of Succession Act have been met. The petitioner described herself as the deceased's wife in form P & A 5, whereas it has emerged that she was not the deceased's wife but Nyanchama's under the Gusii customary law of woman-to-woman marriage. The said custom recognizes children of such a marriage as belonging to the woman who married their mother and, thus, as children of the husband who contracted with the woman in a woman-to-woman marriage. Court reiterates that all children of a deceased person, whether male or female, are entitled to inherit. I have already found that the petitioner left out the deceased's 3rd wife, together with her children, and the 1st house. She also obtained a letter from the chief, which did not disclose the said family members to the court . The letter talks of a purported Will of the deceased of land parcel 140 to the petitioner and her children to the exclusion of the daughters of the deceased from the 2nd house and the 3rd house . Section 76 provides for circumstances under which a grant may be revoked .
18. It is clear that the procedure used to obtain the grant was defective in substance and fraudulent, as not all the survivors / beneficiaries were disclosed to the court, and the petitioner described herself as the wife of the deceased, which is not true .
19.This omission of the 1st house , the objector and her children ,the daughters to Nyanchama, is neither inadvertent nor trivial. It offends section 51(2)(g) of the Act and goes to the root of the grant as was held in the cases of In re Estate of M’Ngarithi M’Miriti (Deceased) [2017] eKLR & In re Estate of G.K.K (Deceased) [2017] eKLR (Supra)
iii.Identification of Lawful Beneficiaries
20. There is consensus that land larcel No. West Mugirango/Bosinange /141 was gifted inter vivos to the 1st house of Nyangarisa by deceased and that the same is not in the name of deceased . The first house was therefore fully provided for . The beneficiaries/survivors of the estate in respect to land parcel no West Mugirango/Bosinange / 140 , therefore are :
a. The Sabina Bisieri Osiemo and her children :
i. Evans Mochume Osiemo
ii. Samwel Mokaya osiemo
iii. Francis Osiemo .
iv Richard osiemo .
b. Yunia Bosibori , her children and daughters of Nyanchama ;
i.. Thomas Osiemo
ii. Stephen Oendo Osiemo
iii. Benard Bundi Osiemo
iv. Paul Osiemo
Daughters of Nyanchama : Queen, Sibia , Alice Bitengo, Barongo, Nyaboke and Anna
.
(iv) Appropriate Mode of Distribution
21.The deceased was a polygamous man who died intestate, and distribution must therefore be governed by the provisions of Section 40 of the law of succession Act. He gifted the 1st house with land no. 141 and left land parcel no. 140 in his name.
22.The evidence placed before the Court indicates that during his lifetime, both the petitioner and the objector were using land parcel 140 and the objector even had a grass thatched house thereon the deceased and thus it cannot be true that objector is a stranger to that land as suggested by the petitioner. Nothing would have stopped the deceased from gifting the land to the 2nd house if he indeed intended it to wholly go to the 2nd house . I find that deceased left land no 140 for the 2nd and 3rd houses as per the evidence of Pw1, Pw2,Pw3 and Dw2.
23.In the circumstances, the just and equitable approach is to apply Section 40 and to distribute each house’s share equally between the houses considering the number of children in each house and each wife shall be considered to be an additional unit . The distribution should consider ground by both houses occupation as at the time of demise of deceased.
24.The schedule of distribution by the petitioner, having excluded some beneficiaries and certain assets, cannot be upheld and I find that it is for revocation.
.
F. DETERMINATION
25.The Court therefore finds:
a. The objection is meritorious;
b. The petition is defective for failure to disclose all beneficiaries;
c. The proposed mode of distribution is inequitable and contrary to the law.
G. ORDERS
26.Accordingly, the Court makes the following orders:
(a) The grant of letters of administration issued to the petitioner is hereby revoked under section 76(a) & (b) of the Law of Succession Act.
(b) .A fresh grant shall issue jointly to:
Yunia Bosibori Petitioner.Sabina Bisieri [Objector].
(c)The administrators shall, within 60 days, file a complete and accurate list of all beneficiaries of the deceased.
(d)The administrators shall file a proposed mode of distribution consistent with this judgment within the same period.
(e)For avoidance of doubt, distribution shall adhere to the following principles:
o Each house shall retain the portion of the land it occupied as at the date of the demise of the deceased .
o Within each house, all children shall benefit equally without discrimination;
( f) The county surveyor is to visit the land and establish ground occupation as at the time of the deceased's death .
(g)The surveyor will visit the land within 45 days from today. Parties to equally share the cost of the survey
(h) The matter shall be mentioned on 28.9.26 for compliance
(i)This being a family matter , each party shall bear their own costs.
T. A. ODERA
JUDGE
28.4.26
DELIVERED VIRTUALLY VIA TEAMS PLATFORM ON THIS 28TH DAY OF APRIL 2026 IN THE PRESENCE OF THE OBJECTOR & PETITIONER ,MR SAGWE, FOR THE PETITIONER & CA KIPCHIRCHIR
T. A. ODERA
JUDGE
28.4.26
Sagwe : May there be an order stopping the destruction of the houses of the petitioner.
Order : The objector is hereby restrained from destroying the houses of the petitioner and her children pending the visit by the surveyor and confirmation of the grant .
T. A. ODERA
JUDGE
28.4.26
1. This judgment relates to the objection to the making of a grant of letters of administration intestate in respect of the estate of the late Osiemo Mayunga (hereinafter “the deceased”) filed by Sabina Bisieri Osiemo vide summons for revocation of grant dated 4.12.2019.
2. The objection challenges both the process leading to the petition and the mode of distribution adopted in the confirmed grant dated 14.2.14 , principally on the grounds of non-disclosure of all beneficiaries and inequitable allocation of the estate.
B. BACKGROUND
3. The deceased died intestate on 15.8.1998. The petitioner moved this Court for letters of administration, describing himself/herself as the deceased's wife.
4. The objector subsequently lodged an objection pursuant to section 76 of the Law of Succession Act and Rule 44 of the Probate and Administration Rules, contending that:
1. The deceased married 3 wives, i.e., Nyangarisa , Nyanchama Osiemo and herself as the 3rd wife .
2. The Nyanchama was not blessed with sons, and she chose to marry Yunia Bosibori under Gusii customary law to have sons.
3. The petition is defective for failure to disclose all beneficiaries as required under section 51(2)(g) of the Act;
b. The objector 3RD wife to the deceased and her children, Evans Mochumbe Osiemo , Samuel Mokaya Osiemo , Francis Osiemo and Richard Osiemo were excluded;
c. The succession cause herein is a sham and contrary to the law.
4. The objector testified as Sabina Bisieri (Pw1), who adduced evidence attesting to her customary marriage with the deceased and to the fact that her marriage was blessed with 8 children. She said the deceased settled her on the lower portion of the land parcel, no. Bosinage 140, while the petitioner was settled on the upper portion, which was slightly larger than hers. She accused the petitioner of demolishing her house while she was away in Maasai land after the death of the deceased. She alleges exclusion from the succession process. Her witnesses, Joseph Makori (pw2), a cousin to the deceased, corroborated her marital status and confirmed her prior occupation and subsequent eviction from the land in dispute.he said he witnessed the deceased subdivide the land into two plots for the houses of Nyanchama and Sabina and that Sabina used to plant maize on the land herein until she was chased from that land . He said that Sabina and Yunia have lived in the Maasai land for a long time, and that Yunia returned home earlier and started ploughing the land. Also, the house of Sabina was demolished . PW3 Omweri Oroni said the deceased was his uncle and that he had 3 wives: Nyangarisa, Nyanchama, and Sabina. He said Nyanchama married Yunia to sire children for her boys under the Gusii customary law, and that the house of Sabina was demolished by Yunia's children.
5. The petitioner opposed the objection and urged the Court to confirm the grant to the identified beneficiaries . Also, that she inherited the land from a deceased husband of Nyanchama, who married her to sire her boys under Gusii customary law. She testified as DW1 and said she was married to Nyanchama, the wife of Osiemo Mayunga, under Gusii customary law. She claimed that the late Osiemo gave her a land parcel, which is the estate of the deceased herein. On examination, she admitted that Nyanchama had six daughters and that she did not provide them in succession for a reason. She said she first saw Sabina in court and denied knowing her or her children.
6. Protus Mogunde Ombiro, the chief of Bosinange location(Dw2), testified herein and recognised Yunia and Sabina as related to Osiemo. He said that Sabina lived in Maasai land with her children, whom she sired with Osiemo, who was present in court. Also, Sabian's marriage was meant to be Osiemo's, intended to maintain family lineage. Also, Yunia currently lives with a neighbour (Pw2) . He said that Yunia and Sabina live in Maasai land, and that Yunia was brought in by Nyanchama to ensure continuity of her generation. She later moved Bosinange from the Maasai land and began developing it, and Sabina later followed, also demanding land. He referred the case to the chief and said that the thatched grass house of Sabina was pulled down.
C. ISSUES FOR DETERMINATION
6. The issues arising ing for determination are:
i. Whether the petitioner made full and frank disclosure of all beneficiaries;
ii. Who are the lawful beneficiaries of the estate?
iii. What is the appropriate mode of distribution?
iv. What orders should issue?
D. LEGAL FRAMEWORK
7. This dispute is governed by the Law of Succession Act, Cap 160, particularly:
(a) Section 51(2)(g) – which obligates petitioners to disclose all survivors/beneficiaries of the estate of the deceased . The same provides that:- in cases of total or partial intestacy, the names and addresses of all surviving spouses, children, parents, brothers and sisters of the deceased, and of the children of any child of his or hers then deceased;
Section 66 – provides for preference in appointment of administrators to wit ; 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:
8. Section 76 – provides for revocation of grant;-
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;
9. Sections 40 –provides that ;- (1)Where an intestate has married more than once under any system of law permitting polygamy, his personal and household effects and the residue of the net intestate estate shall, in the first instance, be divided among the houses according to the number of children in each house, but also adding any wife surviving him as an additional unit to the number of children.
(2) The distribution of the personal and household effects and the residue of the net intestate estate within each house shall then be in accordance with the rules set out in sections 35 to 38.
10. Section 29 of the Law of Succession Act defines a dependant as follows ;- For the purposes of this Part, "dependant" means—
(a) the wife or wives, or former wife or wives, and the children of the deceased whether or not maintained by the deceased immediately prior to his death;
(b) such of the deceased's parents, step-parents, grandparents, grandchildren, step-children, children whom the deceased had taken into his family as his own, brothers and sisters, and half-brothers and half-sisters, as were being maintained by the deceased immediately prior to his death; and
(c) where the deceased was a woman, her husband if he was being maintained by her immediately prior to the date of her death.
11. Article 27 of the Constitution of Kenya provides for non-discrimination of all persons on grounds of gender, race, status, etc. This applies to every aspect, including succession proceedings.
E. ANALYSIS
i. Whether the petitioner made full and frank disclosure of all beneficiaries
12.The objector alleged that the petitioner did not make a full disclosure of the survivors / beneficiaries . She alleged that she and her children were left out of the succession cause . The petitioner said she was the survivor of the deceased, who left the land parcel no. South Mugirango / Bosinange / 140 to the house of Nyanchama and her children, while the house of Nyangarisa was gifted a land parcel no. South Mugirango / Bosinange / 141 intervivos. The law imposes a mandatory duty on a petitioner to disclose all surviving spouses and children of the deceased.
13.In In re Estate of M’Ngarithi M’Miriti (Deceased) [2017] eKLR, the Court held that non-disclosure of beneficiaries constitutes a material defect and renders a grant liable to revocation.
14.Similarly, in In re Estate of G.K.K (Deceased) [2017] eKLR, the Court emphasised that concealment of material facts undermines the integrity of succession proceedings.
15.In the present case, though the petitioner denies knowing the objector, upon considering the evidence of the objector , Pw2, Pw3 , the petitioner and the area chief , the evidence of Pw1 was supported by the firm evidence of Pw2, Pw3 and the chief Dw2, who described the objector as a 3rd wife to the deceased and the petitioner as a customary wife to Nyanchama, the wife of the deceased . It has emerged that she lived in the Maasai land with the deceased before his death, and she also had a home in the Bosinage land parcel no. 140, which was pulled down by the petitioner, and this has not been controverted. The objector has proved on a balance of probability that she is, in fact, the deceased's 3rd wife.
16.The courts are usually guided by the Chief's letters in identifying survivors and beneficiaries of deceased persons. The chief's letter dated 12.9.2011, presented by the petitioner herein, indicated that the deceased left a land parcel, Bosinange/140, to the petitioner and her sons, Thomas Osiemo, Stephen Oendo Osiemo, Benard Bundi Osiemo, and Paul Osiemo. The said letter does not indicate the relationship of the petitioner to the deceased or whether he was survived by other wives or children. It is clear that this letter was drawn with the intent to defeat the interests of other survivors of the deceased, as the 1st house of the deceased and his daughters from the 2nd house were not included in the same. This omission of the 1st house , the objector and her children ,the daughters to Nyanchama, is neither inadvertent nor trivial. It goes to the root of the petition and offends section 51(2)(g) of the Act, as disclosure of the survivors is mandatory whether they are beneficiaries or not, succession being a birthright, and the court has to satisfy itself that no beneficiary has been left out.
ii. Whether the grant should be revoked
17. On whether the conditions of section 76 of the Law of Succession Act have been met. The petitioner described herself as the deceased's wife in form P & A 5, whereas it has emerged that she was not the deceased's wife but Nyanchama's under the Gusii customary law of woman-to-woman marriage. The said custom recognizes children of such a marriage as belonging to the woman who married their mother and, thus, as children of the husband who contracted with the woman in a woman-to-woman marriage. Court reiterates that all children of a deceased person, whether male or female, are entitled to inherit. I have already found that the petitioner left out the deceased's 3rd wife, together with her children, and the 1st house. She also obtained a letter from the chief, which did not disclose the said family members to the court . The letter talks of a purported Will of the deceased of land parcel 140 to the petitioner and her children to the exclusion of the daughters of the deceased from the 2nd house and the 3rd house . Section 76 provides for circumstances under which a grant may be revoked .
18. It is clear that the procedure used to obtain the grant was defective in substance and fraudulent, as not all the survivors / beneficiaries were disclosed to the court, and the petitioner described herself as the wife of the deceased, which is not true .
19.This omission of the 1st house , the objector and her children ,the daughters to Nyanchama, is neither inadvertent nor trivial. It offends section 51(2)(g) of the Act and goes to the root of the grant as was held in the cases of In re Estate of M’Ngarithi M’Miriti (Deceased) [2017] eKLR & In re Estate of G.K.K (Deceased) [2017] eKLR (Supra)
iii.Identification of Lawful Beneficiaries
20. There is consensus that land larcel No. West Mugirango/Bosinange /141 was gifted inter vivos to the 1st house of Nyangarisa by deceased and that the same is not in the name of deceased . The first house was therefore fully provided for . The beneficiaries/survivors of the estate in respect to land parcel no West Mugirango/Bosinange / 140 , therefore are :
a. The Sabina Bisieri Osiemo and her children :
i. Evans Mochume Osiemo
ii. Samwel Mokaya osiemo
iii. Francis Osiemo .
iv Richard osiemo .
b. Yunia Bosibori , her children and daughters of Nyanchama ;
i.. Thomas Osiemo
ii. Stephen Oendo Osiemo
iii. Benard Bundi Osiemo
iv. Paul Osiemo
Daughters of Nyanchama : Queen, Sibia , Alice Bitengo, Barongo, Nyaboke and Anna
.
(iv) Appropriate Mode of Distribution
21.The deceased was a polygamous man who died intestate, and distribution must therefore be governed by the provisions of Section 40 of the law of succession Act. He gifted the 1st house with land no. 141 and left land parcel no. 140 in his name.
22.The evidence placed before the Court indicates that during his lifetime, both the petitioner and the objector were using land parcel 140 and the objector even had a grass thatched house thereon the deceased and thus it cannot be true that objector is a stranger to that land as suggested by the petitioner. Nothing would have stopped the deceased from gifting the land to the 2nd house if he indeed intended it to wholly go to the 2nd house . I find that deceased left land no 140 for the 2nd and 3rd houses as per the evidence of Pw1, Pw2,Pw3 and Dw2.
23.In the circumstances, the just and equitable approach is to apply Section 40 and to distribute each house’s share equally between the houses considering the number of children in each house and each wife shall be considered to be an additional unit . The distribution should consider ground by both houses occupation as at the time of demise of deceased.
24.The schedule of distribution by the petitioner, having excluded some beneficiaries and certain assets, cannot be upheld and I find that it is for revocation.
.
F. DETERMINATION
25.The Court therefore finds:
a. The objection is meritorious;
b. The petition is defective for failure to disclose all beneficiaries;
c. The proposed mode of distribution is inequitable and contrary to the law.
G. ORDERS
26.Accordingly, the Court makes the following orders:
(a) The grant of letters of administration issued to the petitioner is hereby revoked under section 76(a) & (b) of the Law of Succession Act.
(b) .A fresh grant shall issue jointly to:
Yunia Bosibori Petitioner.Sabina Bisieri [Objector].
(c)The administrators shall, within 60 days, file a complete and accurate list of all beneficiaries of the deceased.
(d)The administrators shall file a proposed mode of distribution consistent with this judgment within the same period.
(e)For avoidance of doubt, distribution shall adhere to the following principles:
o Each house shall retain the portion of the land it occupied as at the date of the demise of the deceased .
o Within each house, all children shall benefit equally without discrimination;
( f) The county surveyor is to visit the land and establish ground occupation as at the time of the deceased's death .
(g)The surveyor will visit the land within 45 days from today. Parties to equally share the cost of the survey
(h) The matter shall be mentioned on 28.9.26 for compliance
(i)This being a family matter , each party shall bear their own costs.
T. A. ODERA
JUDGE
28.4.26
DELIVERED VIRTUALLY VIA TEAMS PLATFORM ON THIS 28TH DAY OF APRIL 2026 IN THE PRESENCE OF THE OBJECTOR & PETITIONER ,MR SAGWE, FOR THE PETITIONER & CA KIPCHIRCHIR
T. A. ODERA
JUDGE
28.4.26
Sagwe : May there be an order stopping the destruction of the houses of the petitioner.
Order : The objector is hereby restrained from destroying the houses of the petitioner and her children pending the visit by the surveyor and confirmation of the grant .
T. A. ODERA
JUDGE
28.4.26