1. The deceased, Prem Lal Ramnath, died on 24th November 2019 at Mombasa Hospital. He was 72 years old at the time of his demise. His residence, as given in the certificate of death, was Nyali. Mr Ramnath died from cardiopulmonary arrest due to tuberculosis, having struggled with ill health for a long period of time.
2. Vide a petition dated 21st January 2020, Ms Rupa Bulbuli Gupta sought to be granted letters of administration intestate of the estate of Mr Ramnath. Ms Gupta listed her capacity as that of a widow of Mr Ramnath (who I shall hereafter refer to as “the decedent” or “the deceased”). She listed herself, Mr Varun Gupta Prem Lal and Ms Yatika Gupta as the heirs of the decedent. According to her, the deceased owned the following assets:
1. Title No Kilifi Township/Block IV/37;
2. ½ share in Title No Kwale/Diani Beach Block/47;
3. 1000 shares in Gupta Construction Co Ltd;
4. 1 share in Ram Development Ltd;
5. 1 share in Bamburi Supermarkets Ltd; and
6. 60 shares held in Varoo Investment Ltd;
She estimated the value of his estate as being Kes 200,000,000/=.
3. The petitioner annexed to her petition a letter from the Chief of Tononoka location, BA Ahmed, which showed that she, Varun and Yatika were the dependants of the decedent, and a photocopy of the marriage certificate, Serial No 84608, which shows that she, then 29 years old, married the decedent on 17th December 1999 at the Registrar’s Office in Mombasa. The deceased was 52 years old at the time.
4. The petition was gazetted on 20th March 2020 vide Kenya Gazette Notice No 2515. There being no objection within the statutory period set out in Rule 7(4) of the Probate & Administration Rules, 1980, letters of administration intestate were issued on 1st February 2021 to the petitioner, Rupa Bulbuli Gupta, of P.O. Box 83551 – 80100, Mombasa.
5. On 18th February 2021, the summons before this court was filed. The summons for Revocation of Grant is dated 17th February 2021. It was filed by the decedent's son and daughter, Varun and Yatika Gupta, and their mother, Aruna Gupta. They seek revocation of the grant issued to the petitioner and issuance of a new grant to Varun Gupta and Yatika in its stead.
6. The applicants contend that no consent was obtained from the beneficiaries of the estate of the decedent as regulated by law, that no proper notice was issued as required by section 67 of the Law of Succession Act and that the alleged Gazette Notice was dated 18th March 2019, way before the petition was filed.
7. The applicants contend that the grant was obtained fraudulently by the making of a false statement concerning material information, namely that Aruna Gupta, said to be the decedent’s lawful wife, was omitted, that all the assets of the deceased were not listed, and that the value of the estate was understated. It was further urged that, prior to filing the instant proceedings, the petitioner had filed Mombasa Civil Succession Cause No. 64 of 2020 relating to the same estate, and that the grant was issued to her before the citation proceedings in citation No. 10 of 2020 were concluded.
8. The summons was supported by the affidavit of Mr Varun Gupta sworn on 17th February 2021. Mr Gupta deposed that his mother was the decedent's only wife. He contended that the marriage allegedly entered into by the deceased and the petitioner was invalid, as the decedent never divorced his mother and she remained his wife, up to the time he died. He reiterated that neither his consent nor his sister's was obtained. According to Mr Gupta, Hindu marriages are monogamous and therefore the decedent could not lawfully have contracted another marriage with the petitioner, unless he first divorced the 3rd applicant. He stated that his parents never divorced and were legally married on 24th November 2019, when his father died.
9. He deprecated the purported marriage certificate between the deceased and the petitioner on the ground that it falsely stated that the deceased was a bachelor in 1999 when in fact he wasn’t. In his view, the marriage was invalid; therefore, for all intents and purposes, the petitioner had no capacity to petition for a grant of representation.
10. Mr Varun Gupta contended that the petitioner filed a citation cause, E10 of 2020, which she never prosecuted. Further, she filed a succession cause in the Chief Magistrate’s Court, to wit, CM Succession Cause No 64 of 2020.
11. The petitioner was accused of intermeddling with the estate and of abusing the court process. Mr Varun prayed that the summons be allowed as prayed.
12. On her part, Ms Rupa Bulbuli Gupta opposed the summons. She contended that she was the decedent's lawful wife, with whom she had lived for 20 years. Prior to the marriage, she worked for him as a professional musician, and thereafter as a manager of his businesses, responsible for running and overseeing them, which included a casino, hotel, restaurant, and what she called “the complex”.
13. Ms Rupa Gupta accused the 3rd Applicant of having mistreated the decedent, as a result of which he developed health complications. She stated that Ms Aruna always wanted to go to Canada to be as far away as possible from the decedent, and that she finally went to Canada in the year 2000 with Varun and Yatika, where they have resided ever since.
14. She averred that she was the one who took care of the deceased when he was unwell, and accompanied him to India when he needed treatment and even donated a kidney to him as they both had similar blood groups. He contrasted his conduct with that of the applicants, who, she alleged, abandoned him and appeared to be waiting for him to die so that they could inherit his property. In particular, she accused Varun of having slapped the deceased and the deceased’s sister of having allegedly told him not to seek a kidney and that he should wait for his time. According to the documents she presented, the petitioner donated her kidney to him on 17th July 2012.
15. Ms Rupa averred that the applicants didn’t participate in the funeral arrangements and didn't settle the hospital bills. She contended that they were interested in the decedent’s properties, as shown, in her view, by the fact that immediately after the decedent died, they began to devise a plan to take over his estate by throwing her out.
16. She prayed that the summons for revocation of grant be dismissed, for in her view, the same lacked merit and was not in accordance with the mandatory requirements of the rules.
17. In response, Mr Varun Gupta deposed to an affidavit sworn on 9th April 2021. In the said affidavit, she accused the Petitioner/Respondent of lying about her age. He averred that his father had never divorced his mother and that the allegation to that effect was false. He contended that the marriage certificate identified the deceased as being a bachelor when he wasn’t. He saw that as evidence that the marriage certificate was fraudulent.
18. Mr Varun Gupta averred that his parents' marriage was a Hindu one and that it was celebrated in Toronto.
19. He denied that the petitioner was a musician. Mr Gupta dismissed Ms Rupa as nothing but a “mujra” dancer employed to dance in bars, “to lure men to the business”. He denied that she had the ability to run any business. Mr Gupta averred that the businesses were registered in the names of limited liability companies and that, if that were the case, company resolutions would have been required.
20. Mr Gupta, while admitting that they relocated to Canada, stated that that was for the purposes of their education. He stated that they would visit the decedent in Kenya from time to time and that he, the decedent, too, went to Canada regularly. They accused the petitioner of inciting the deceased against them, of having been interested in his money and of harassing and neglecting the deceased. He contended that the decedent and the petitioner never shared a room. Regarding the kidney donation, Mr Gupta stated that they didn’t donate a kidney due to mismatched blood groups. On the other hand, he averred that the petitioner’s donation was not an act of love but a business transaction, as she got a substantial amount of money, had a rundown building in Kolkata renovated and rebuilt into a 3-storey building and was given a property in her name in Ahmedabad, India.
21. Mr Gupta averred that his mother was aware of the alleged marriage between the decedent and the petitioner and that she even went to see Mr CB Gor, a senior advocate in Mombasa, with the decedent. Although the second marriage was illegal and bigamous, she stated that she didn’t pursue a complaint against the decedent because she didn’t want him to be jailed.
22. He averred that he and his mother were in charge of the funeral and that the petitioner “was nowhere to be seen, having disappeared the night before.”
23. Mr Gupta averred that it was necessary that their consent be obtained and that the fact that the petitioner filed a citation shows that she was aware that this was in fact necessary. Regarding their petition, he contended that it wasn’t necessary for them to name her as she wasn’t the wife of the deceased. He averred that his relationship with his father was cordial and that he had relocated to Kenya in 2019.
24. The summons was heard by way of viva voce evidence. I shall state a summary of the evidence given by the witnesses.
25. The first witness for the applicants was Mr Varun Gupta. As pointed out earlier, he is the son of the deceased. He reiterated the contents of his two affidavits. He denied that the petitioner was the deceased's wife. According to him, his father loved his family. He conceded that he did not donate his kidney, contending that he had undergone two tests which showed he wasn’t qualified.
26. When cross-examined by Mr Khalid Salim, he conceded that at the time of his father's demise, his father was with the petitioner and that they lived together. He further conceded that from 1999, when she left Kenya, to 2019, when he died, his father and mother did not live together. Mr Varun Gupta acknowledged that the petitioner donated her kidney to his father, but explained that it was not an act of kindness but a commercial transaction, as she paid handsomely for it.
27. The second witness was Aruna Gupta. She testified that she was the wife of the deceased, having married him on 14th February 1982 under Hindu Religious Law. She further testified that their marriage was blessed with 2 children, Varun and Yatika Gupta. She denied that her marriage to him had ever been dissolved. She further stated that her husband contracted a second marriage to help the petitioner obtain citizenship, so that she could conduct her business as a mujra dancer in Kenya. She denied neglecting the deceased.
28. When cross-examined by Mr Khalid Salim, Ms Aruna stated that she left Kenya in 2001. He came back only once in 2014, when the husband was alive. The next time she came was in 2019, after her husband died. Although her ostensible reason for going to Canada was to help her children settle into college and to take care of her mother, she admitted that her children had graduated from college in 2006, while her mother died in 2003. Ms Aruna was unclear as to whether the deceased and Rupa had stayed together, as she both denied and conceded the point. She also appeared to concede that the Hindu religion permits polygamy.
29. The petitioner Rupa Gupta testified for herself. She testified that she met the objector in 1996. She knew that the deceased had 2 children, Varun and Yatika, with the 3rd applicant. It was her evidence that the 3rd applicant was not on good terms with the deceased and that she left him to go to Canada in 2001. She testified that Aruna only came to Kenya in 2014 and that she stayed for 2 months. Ms Rupa testified that she paid the hospital bills when he died. Regarding inheritance, she denied that Aruna was entitled to any inheritance.
30. Rupa was cross-examined by Mr Oluga. She testified that she was first employed as a musician to entertain guests. Upon getting married, she stopped singing for guests and instead assisted the decedent with secretarial work. She insisted that she had lived with the deceased until the time he died.
31. It was Ms Rupa's evidence that the Kenya Gazette Notice was erroneously dated 18th March 2019.
32. The second witness was Mr Lusher Narum Das. He is the chairman of the temple, whose particulars were unclear. He relied on his affidavit sworn on 3rd May 2021. He testified that Ms Rupa and the deceased were married to each other and were husband and wife. He testified that under Hindu law, polygamy is allowed.
33. The 3rd witness was Ms Twinkle Patel of Muljibhai Patel Budalgnal Hospital, Gujarat, India. She is a Public Relations Officer at the hospital in question. She produced the records from the said hospital and confirmed that the deceased was treated there and that Ms Rupa was presented as the decedent’s wife. She testified that there was no evidence that the petitioner was paid by the decedent so that she could donate her kidney to him.
34. After the conclusion of the case, the court ordered the parties to file written submissions. I shall give a précis of each party's submissions below.
35. I must state that this matter was heard by Onyiego, J. For a considerable period, the file could not be traced. Since it was unclear whether a judgment had ever been delivered, this Court, with the concurrence of the parties, opted to consider the evidence in the court record and to make its determination.
36. The submissions of the applicants are dated 26th September 2022. In the said submissions, the applicants identified issues for determination as being:-
i Whether the proceedings were defective;
ii Whether the grant of letters of administration intestate was obtained fraudulently;
iii Whether the petitioner was guilty of fraud; and
iv Whether the petitioner had the capacity to file the petition.
37. In regard to the first issue, it was contended that the petitioner did not comply with Rule 26 of the P&A Rules as the beneficiaries with equal or greater priority did not consent. Support for the contention was drawn from the case of in re Estate of Dominicus Odhiambo (deceased) [2020]eKLR and Matei Julius Mulili Ndeli & Ndeli & another [2022]KECA 150 (KLR).
38. Regarding the citation filed, it was urged that the same was not served nor concluded. As for the Kenya Gazette notice, counsel submitted that it was improper because it was published long before the petition was filed.
39. On the issue of fraud and concealment of material information, it was urged that the petitioner filed a citation and a succession cause at the court below and that she did not disclose all the assets of the deceased nor all his dependants. Counsel relied on the case of Eric John Mutemi & another v Agnes Mumbunu Kinako [2016]eKLR and Margaret Gacuku Simon v Mariela Nkatha Makinya [2017]eKLR.
40. It was urged that the petitioner engaged in duplicitous conduct by filing this petition and another one in the lower court.
41. On the last issue of capacity, it was urged that the deceased lacked capacity to marry a second wife as his first marriage was monogamous. It was urged, on the basis of section 6(2) of the Marriage Act, that where a monogamous marriage is contracted, a subsequent marriage is unlawful.
42. Counsel therefore prayed that the summons be allowed and the grant issued to the petitioner herein be revoked.
43. The submissions of the Petitioner/Respondent are dated 7th November 2026. In the said submissions, it was urged that the summons be dismissed.
44. The petitioner identified issues for determination as being:-
i Whether the petitioner has the capacity to apply for a grant of representation;
ii Whether the grant dated 1st February 2024 was lawful and regular;
iii Whether the court should allow the summons for revocation of the grant;
45. On the first issue, it was contended that the deceased was the wife of the deceased and that they lived together for over 20 years, as the 3rd applicant and her children relocated to Canada. Their union was solemnized in a civil marriage. Relying on the case of the Estate of Jecinter Njoki Okoth (deceased) [2020] eKLR, it was contended that by moving on and contracting another marriage, the deceased had conclusively shown that he had no desire to continue the marital relationship with the 3rd applicant.
46. Counsel contended that the 3rd applicant evinced a similar desire by staying away and that she could no longer be deemed to be his wife.
47. On whether the grant issued on 1st February 2023 was lawful, it was contended that that was the case. Counsel urged that, since the petitioner was the decedent's wife, she could petition for a grant. It was urged that due process was observed. It was denied that there was any non-disclosure in the petition; counsel urged that all parties had given the value of the estate as Kes 200,000,000/-.
48. Counsel submitted that there was no duplicity on the part of the petitioner as the succession cause in the court below was withdrawn.
49. On the management of the estate, it was urged that the petitioner had done a good job of it and that there was no reason to revoke the grant.
50. The petitioner thus urged the court not to revoke the grant and to allow her to administer her deceased husband’s estate.
51. I have considered the summons, the responses of the Petitioner/Respondent, the evidence adduced, the submissions of the parties, as well as the applicable law.
52. The issue in this matter is whether the petitioner was lawfully married to the deceased or if her marriage was invalid because the prior marriage of the decedent was allegedly monogamous and had not been dissolved.
53. I note that there is no contestation that the marriage between the petitioner and the deceased was indeed celebrated. It would appear to me that at the time of the celebration of the said marriage, the deceased did not suffer from any infirmity of the body or mind that perverted his intentions. Although he had been ailing for a long period of time, leading to his kidney transplant, his cognitive ability, at the time of the marriage and thereafter, was not questioned. In essence, he knew what he was doing.
54. The evidence adduced shows that the 3rd Applicant and the deceased had separated and did not live together for a long period of time. As a matter of fact, the 3rd Applicant lives in Canada, while the deceased died in Mombasa. Since going to Canada in 2001, the 3rd applicant came back to Kenya only once during the time the deceased was alive. When the deceased became unwell, it was the Petitioner/Respondent who took care of him and even donated her kidney to him.
55. Ms Aruna’s reasons for going to Canada were, first, to help Varun and Yatika settle into college, and second, to take care of her ailing mother. Even after those reasons had become moot, following her mother’s death and the children’s graduation, she never returned. This was despite the fact that her husband was ailing in Kenya and needed her companionship, love and care.
56. On one occasion, she came back in 2014, she appeared to have made peace with the fact that the decedent had moved on and found love in the arms of Ms Rupa Gupta. The applicants grudgingly accepted, during the oral hearing, that the deceased lived with the petitioner and that the latter played a significant role in the decedent’s life. It is inconceivable that she could have done all the things they accuse her of if she hadn’t been close to him.
57. In my view, there was not much of a marriage between the deceased and the 3rd Applicant at the time of his demise. It would appear to me that each party had moved on. In my view, this is the one instance in which the court must make a presumption of divorce. I rely on the persuasive authority of the case of the
In re Estate of Jecinter Njoki Okoth (Deceased) [2020] KEHC 7562 (KLR). In the said case, the Court stated as follows:
“In my view, the objector’s cause does not hold water. It is the view of this court that the deceased moved on with her life as she had abandoned the marriage with the objector, engaged in relationships with other men other that the objector, behaved and conducted herself like a single person, a free woman capable of entering into a marriage and actually solemnized the marriage with the petitioner and acquire properties together, after many years of having lived away from the objector. This shows that she had no intention of going back to the objector. These are all indicators that the deceased had moved on permanently. This is distinguishable from adultery in the sense that in adultery does not have an intention to abandon the marriage.
The marriage between the deceased and the objector was founded upon the basis of presumption of marriage and it is logical to say if the same is applied mutatis mutatis to the circumstances of this case, a presumption that they divorced suffices. The circumstances that the deceased find herself in can safely satisfy a presumption of divorce.”
58. In the case of NELIA WANJIRU GITUMBI vs JACINTA WANJIRU GITUMBI,JOSEPH KAGWIRI GITUMBI [2003] KEHC 925 (KLR) it was held that:
“In my opinion, the moot question is not the marriage between the two but the effect of total and continued separation from 1979 and the Applicant being given a portion of her father’s land. Even as per the counsel for the Applicant he stressed more on the presumption of marriage due to long cohabitation and repute. If so, the long separation will, in my humble opinion, be presumed as evincing an intention on the part of the Applicant of dissolution of the marriage. More so when her father has taken her back and settled her on his own land by apportioning a piece from the land. She has never gone back except for attending two funerals. No evidence was led that she participated in those funerals as a daughter in law and a widow.”
59. Similarly, in the case of the In re Estate of Henry Mbogo Kuria (Deceased) [2025] KEHC 10818 (KLR) Ndungu J held that:-
“ I take the view that it would be a travesty of justice of monumental proportions to allow a spouse who during the existence of marriage abandons the other spouse for a lengthy period engaging in independent economic and social activities with no regard at all to the other spouse only to return and seek to inherit what the other spouse could have toiled to put together in her long absence.”
60. I agree with the sentiments expressed above. The Court must take into account the parties’ lived reality rather than be imprisoned by assumptions unchained from the facts.
61. My view is buttressed by the Constitution, which declared at Article 45(2) that “Every adult has the right to marry a person of the opposite sex, based on the free consent of the parties.” I am of the opinion that marriage may subsist only as long as there is a consensus ad idem between the spouses that it may continue. To hold otherwise is to conceive marriage as some form of prison and would be a denial of the constitutional promise of consent.
62. What flows from above is that I am unwilling to invalidate the marriage between the deceased and the petitioner. In my view, she was the deceased's wife. The marriage was known to Ms Aruna and the family, as evidenced by Mr Varun's affidavit and the oral evidence tendered during the hearing.
63. Being a wife, I find and hold that the petitioner was under no obligation to get the consent of Varun and Yatika, as under Section 66 of the Law of Succession Act, she ranked higher than they. This is clear from Rule 26(1) of the Probate and Administration Rules which provides that:
“Letters of administration shall not be granted to any applicant without notice to every other person entitled in the same degree as or in priority to the applicant.”
64. Having been the deceased's wife, the petitioner had the capacity to file the petition. There was, therefore, no defect in the manner in which the petition was filed. The resultant grant was therefore lawful.
65. Mr Varun Gupta averred that the petitioner was a “mujra dancer.” Whereas she may as well have been, that, of itself, does not mean that the deceased was incapable of falling in love with her or that her station in life could not improve. Mr Varun Gupta appears to be stuck in classist thinking that should not be acceptable in this day and age. His father had every right, in exercising his agency and autonomy, to look for love wherever he could find it.
66. I am of the opinion, in any event, that to recognize, on the one hand, that marriage was dead during his lifetime, and to give it legal force upon death would, to me, be rather bizarre.
67. There were attempts to paint the petitioner as a gold-digger. I am not persuaded that she was. She risked her life to donate a kidney to the deceased, something the applicants, for whatever reason, failed to do. No evidence was adduced to show that Ms Rupa was paid to donate her kidney. In my view, the allegation that her act of kindness was motivated by commercial reasons was a scurrilous attempt to besmirch her reputation so that she could be disinherited.
68. What of the gazette notice? It is evident that the gazette notice had an error which cannot be blamed on the petitioner. The applicants did not say that the publication was fraudulent or that it did not emanate from the Government Printer. Since the date of the deceased's death is uncontested, it is clear that the date in the notice was erroneous. To punish the petitioner for an error that she did not author would be oppressive. This Court will not concern itself with an error that does not create an injustice, in keeping with the maxim “de minimis non curat lex.”
69. I am not persuaded that there was fraud of any kind. In the circumstances, the summons dated 17th February 2021 is dismissed with no orders as to the costs.
70. It is so ordered.
Dated and signed at Nairobi this 7th day of July 2026.
2. Vide a petition dated 21st January 2020, Ms Rupa Bulbuli Gupta sought to be granted letters of administration intestate of the estate of Mr Ramnath. Ms Gupta listed her capacity as that of a widow of Mr Ramnath (who I shall hereafter refer to as “the decedent” or “the deceased”). She listed herself, Mr Varun Gupta Prem Lal and Ms Yatika Gupta as the heirs of the decedent. According to her, the deceased owned the following assets:
1. Title No Kilifi Township/Block IV/37;
2. ½ share in Title No Kwale/Diani Beach Block/47;
3. 1000 shares in Gupta Construction Co Ltd;
4. 1 share in Ram Development Ltd;
5. 1 share in Bamburi Supermarkets Ltd; and
6. 60 shares held in Varoo Investment Ltd;
She estimated the value of his estate as being Kes 200,000,000/=.
3. The petitioner annexed to her petition a letter from the Chief of Tononoka location, BA Ahmed, which showed that she, Varun and Yatika were the dependants of the decedent, and a photocopy of the marriage certificate, Serial No 84608, which shows that she, then 29 years old, married the decedent on 17th December 1999 at the Registrar’s Office in Mombasa. The deceased was 52 years old at the time.
4. The petition was gazetted on 20th March 2020 vide Kenya Gazette Notice No 2515. There being no objection within the statutory period set out in Rule 7(4) of the Probate & Administration Rules, 1980, letters of administration intestate were issued on 1st February 2021 to the petitioner, Rupa Bulbuli Gupta, of P.O. Box 83551 – 80100, Mombasa.
5. On 18th February 2021, the summons before this court was filed. The summons for Revocation of Grant is dated 17th February 2021. It was filed by the decedent's son and daughter, Varun and Yatika Gupta, and their mother, Aruna Gupta. They seek revocation of the grant issued to the petitioner and issuance of a new grant to Varun Gupta and Yatika in its stead.
6. The applicants contend that no consent was obtained from the beneficiaries of the estate of the decedent as regulated by law, that no proper notice was issued as required by section 67 of the Law of Succession Act and that the alleged Gazette Notice was dated 18th March 2019, way before the petition was filed.
7. The applicants contend that the grant was obtained fraudulently by the making of a false statement concerning material information, namely that Aruna Gupta, said to be the decedent’s lawful wife, was omitted, that all the assets of the deceased were not listed, and that the value of the estate was understated. It was further urged that, prior to filing the instant proceedings, the petitioner had filed Mombasa Civil Succession Cause No. 64 of 2020 relating to the same estate, and that the grant was issued to her before the citation proceedings in citation No. 10 of 2020 were concluded.
8. The summons was supported by the affidavit of Mr Varun Gupta sworn on 17th February 2021. Mr Gupta deposed that his mother was the decedent's only wife. He contended that the marriage allegedly entered into by the deceased and the petitioner was invalid, as the decedent never divorced his mother and she remained his wife, up to the time he died. He reiterated that neither his consent nor his sister's was obtained. According to Mr Gupta, Hindu marriages are monogamous and therefore the decedent could not lawfully have contracted another marriage with the petitioner, unless he first divorced the 3rd applicant. He stated that his parents never divorced and were legally married on 24th November 2019, when his father died.
9. He deprecated the purported marriage certificate between the deceased and the petitioner on the ground that it falsely stated that the deceased was a bachelor in 1999 when in fact he wasn’t. In his view, the marriage was invalid; therefore, for all intents and purposes, the petitioner had no capacity to petition for a grant of representation.
10. Mr Varun Gupta contended that the petitioner filed a citation cause, E10 of 2020, which she never prosecuted. Further, she filed a succession cause in the Chief Magistrate’s Court, to wit, CM Succession Cause No 64 of 2020.
11. The petitioner was accused of intermeddling with the estate and of abusing the court process. Mr Varun prayed that the summons be allowed as prayed.
12. On her part, Ms Rupa Bulbuli Gupta opposed the summons. She contended that she was the decedent's lawful wife, with whom she had lived for 20 years. Prior to the marriage, she worked for him as a professional musician, and thereafter as a manager of his businesses, responsible for running and overseeing them, which included a casino, hotel, restaurant, and what she called “the complex”.
13. Ms Rupa Gupta accused the 3rd Applicant of having mistreated the decedent, as a result of which he developed health complications. She stated that Ms Aruna always wanted to go to Canada to be as far away as possible from the decedent, and that she finally went to Canada in the year 2000 with Varun and Yatika, where they have resided ever since.
14. She averred that she was the one who took care of the deceased when he was unwell, and accompanied him to India when he needed treatment and even donated a kidney to him as they both had similar blood groups. He contrasted his conduct with that of the applicants, who, she alleged, abandoned him and appeared to be waiting for him to die so that they could inherit his property. In particular, she accused Varun of having slapped the deceased and the deceased’s sister of having allegedly told him not to seek a kidney and that he should wait for his time. According to the documents she presented, the petitioner donated her kidney to him on 17th July 2012.
15. Ms Rupa averred that the applicants didn’t participate in the funeral arrangements and didn't settle the hospital bills. She contended that they were interested in the decedent’s properties, as shown, in her view, by the fact that immediately after the decedent died, they began to devise a plan to take over his estate by throwing her out.
16. She prayed that the summons for revocation of grant be dismissed, for in her view, the same lacked merit and was not in accordance with the mandatory requirements of the rules.
17. In response, Mr Varun Gupta deposed to an affidavit sworn on 9th April 2021. In the said affidavit, she accused the Petitioner/Respondent of lying about her age. He averred that his father had never divorced his mother and that the allegation to that effect was false. He contended that the marriage certificate identified the deceased as being a bachelor when he wasn’t. He saw that as evidence that the marriage certificate was fraudulent.
18. Mr Varun Gupta averred that his parents' marriage was a Hindu one and that it was celebrated in Toronto.
19. He denied that the petitioner was a musician. Mr Gupta dismissed Ms Rupa as nothing but a “mujra” dancer employed to dance in bars, “to lure men to the business”. He denied that she had the ability to run any business. Mr Gupta averred that the businesses were registered in the names of limited liability companies and that, if that were the case, company resolutions would have been required.
20. Mr Gupta, while admitting that they relocated to Canada, stated that that was for the purposes of their education. He stated that they would visit the decedent in Kenya from time to time and that he, the decedent, too, went to Canada regularly. They accused the petitioner of inciting the deceased against them, of having been interested in his money and of harassing and neglecting the deceased. He contended that the decedent and the petitioner never shared a room. Regarding the kidney donation, Mr Gupta stated that they didn’t donate a kidney due to mismatched blood groups. On the other hand, he averred that the petitioner’s donation was not an act of love but a business transaction, as she got a substantial amount of money, had a rundown building in Kolkata renovated and rebuilt into a 3-storey building and was given a property in her name in Ahmedabad, India.
21. Mr Gupta averred that his mother was aware of the alleged marriage between the decedent and the petitioner and that she even went to see Mr CB Gor, a senior advocate in Mombasa, with the decedent. Although the second marriage was illegal and bigamous, she stated that she didn’t pursue a complaint against the decedent because she didn’t want him to be jailed.
22. He averred that he and his mother were in charge of the funeral and that the petitioner “was nowhere to be seen, having disappeared the night before.”
23. Mr Gupta averred that it was necessary that their consent be obtained and that the fact that the petitioner filed a citation shows that she was aware that this was in fact necessary. Regarding their petition, he contended that it wasn’t necessary for them to name her as she wasn’t the wife of the deceased. He averred that his relationship with his father was cordial and that he had relocated to Kenya in 2019.
24. The summons was heard by way of viva voce evidence. I shall state a summary of the evidence given by the witnesses.
25. The first witness for the applicants was Mr Varun Gupta. As pointed out earlier, he is the son of the deceased. He reiterated the contents of his two affidavits. He denied that the petitioner was the deceased's wife. According to him, his father loved his family. He conceded that he did not donate his kidney, contending that he had undergone two tests which showed he wasn’t qualified.
26. When cross-examined by Mr Khalid Salim, he conceded that at the time of his father's demise, his father was with the petitioner and that they lived together. He further conceded that from 1999, when she left Kenya, to 2019, when he died, his father and mother did not live together. Mr Varun Gupta acknowledged that the petitioner donated her kidney to his father, but explained that it was not an act of kindness but a commercial transaction, as she paid handsomely for it.
27. The second witness was Aruna Gupta. She testified that she was the wife of the deceased, having married him on 14th February 1982 under Hindu Religious Law. She further testified that their marriage was blessed with 2 children, Varun and Yatika Gupta. She denied that her marriage to him had ever been dissolved. She further stated that her husband contracted a second marriage to help the petitioner obtain citizenship, so that she could conduct her business as a mujra dancer in Kenya. She denied neglecting the deceased.
28. When cross-examined by Mr Khalid Salim, Ms Aruna stated that she left Kenya in 2001. He came back only once in 2014, when the husband was alive. The next time she came was in 2019, after her husband died. Although her ostensible reason for going to Canada was to help her children settle into college and to take care of her mother, she admitted that her children had graduated from college in 2006, while her mother died in 2003. Ms Aruna was unclear as to whether the deceased and Rupa had stayed together, as she both denied and conceded the point. She also appeared to concede that the Hindu religion permits polygamy.
29. The petitioner Rupa Gupta testified for herself. She testified that she met the objector in 1996. She knew that the deceased had 2 children, Varun and Yatika, with the 3rd applicant. It was her evidence that the 3rd applicant was not on good terms with the deceased and that she left him to go to Canada in 2001. She testified that Aruna only came to Kenya in 2014 and that she stayed for 2 months. Ms Rupa testified that she paid the hospital bills when he died. Regarding inheritance, she denied that Aruna was entitled to any inheritance.
30. Rupa was cross-examined by Mr Oluga. She testified that she was first employed as a musician to entertain guests. Upon getting married, she stopped singing for guests and instead assisted the decedent with secretarial work. She insisted that she had lived with the deceased until the time he died.
31. It was Ms Rupa's evidence that the Kenya Gazette Notice was erroneously dated 18th March 2019.
32. The second witness was Mr Lusher Narum Das. He is the chairman of the temple, whose particulars were unclear. He relied on his affidavit sworn on 3rd May 2021. He testified that Ms Rupa and the deceased were married to each other and were husband and wife. He testified that under Hindu law, polygamy is allowed.
33. The 3rd witness was Ms Twinkle Patel of Muljibhai Patel Budalgnal Hospital, Gujarat, India. She is a Public Relations Officer at the hospital in question. She produced the records from the said hospital and confirmed that the deceased was treated there and that Ms Rupa was presented as the decedent’s wife. She testified that there was no evidence that the petitioner was paid by the decedent so that she could donate her kidney to him.
34. After the conclusion of the case, the court ordered the parties to file written submissions. I shall give a précis of each party's submissions below.
35. I must state that this matter was heard by Onyiego, J. For a considerable period, the file could not be traced. Since it was unclear whether a judgment had ever been delivered, this Court, with the concurrence of the parties, opted to consider the evidence in the court record and to make its determination.
36. The submissions of the applicants are dated 26th September 2022. In the said submissions, the applicants identified issues for determination as being:-
i Whether the proceedings were defective;
ii Whether the grant of letters of administration intestate was obtained fraudulently;
iii Whether the petitioner was guilty of fraud; and
iv Whether the petitioner had the capacity to file the petition.
37. In regard to the first issue, it was contended that the petitioner did not comply with Rule 26 of the P&A Rules as the beneficiaries with equal or greater priority did not consent. Support for the contention was drawn from the case of in re Estate of Dominicus Odhiambo (deceased) [2020]eKLR and Matei Julius Mulili Ndeli & Ndeli & another [2022]KECA 150 (KLR).
38. Regarding the citation filed, it was urged that the same was not served nor concluded. As for the Kenya Gazette notice, counsel submitted that it was improper because it was published long before the petition was filed.
39. On the issue of fraud and concealment of material information, it was urged that the petitioner filed a citation and a succession cause at the court below and that she did not disclose all the assets of the deceased nor all his dependants. Counsel relied on the case of Eric John Mutemi & another v Agnes Mumbunu Kinako [2016]eKLR and Margaret Gacuku Simon v Mariela Nkatha Makinya [2017]eKLR.
40. It was urged that the petitioner engaged in duplicitous conduct by filing this petition and another one in the lower court.
41. On the last issue of capacity, it was urged that the deceased lacked capacity to marry a second wife as his first marriage was monogamous. It was urged, on the basis of section 6(2) of the Marriage Act, that where a monogamous marriage is contracted, a subsequent marriage is unlawful.
42. Counsel therefore prayed that the summons be allowed and the grant issued to the petitioner herein be revoked.
43. The submissions of the Petitioner/Respondent are dated 7th November 2026. In the said submissions, it was urged that the summons be dismissed.
44. The petitioner identified issues for determination as being:-
i Whether the petitioner has the capacity to apply for a grant of representation;
ii Whether the grant dated 1st February 2024 was lawful and regular;
iii Whether the court should allow the summons for revocation of the grant;
45. On the first issue, it was contended that the deceased was the wife of the deceased and that they lived together for over 20 years, as the 3rd applicant and her children relocated to Canada. Their union was solemnized in a civil marriage. Relying on the case of the Estate of Jecinter Njoki Okoth (deceased) [2020] eKLR, it was contended that by moving on and contracting another marriage, the deceased had conclusively shown that he had no desire to continue the marital relationship with the 3rd applicant.
46. Counsel contended that the 3rd applicant evinced a similar desire by staying away and that she could no longer be deemed to be his wife.
47. On whether the grant issued on 1st February 2023 was lawful, it was contended that that was the case. Counsel urged that, since the petitioner was the decedent's wife, she could petition for a grant. It was urged that due process was observed. It was denied that there was any non-disclosure in the petition; counsel urged that all parties had given the value of the estate as Kes 200,000,000/-.
48. Counsel submitted that there was no duplicity on the part of the petitioner as the succession cause in the court below was withdrawn.
49. On the management of the estate, it was urged that the petitioner had done a good job of it and that there was no reason to revoke the grant.
50. The petitioner thus urged the court not to revoke the grant and to allow her to administer her deceased husband’s estate.
51. I have considered the summons, the responses of the Petitioner/Respondent, the evidence adduced, the submissions of the parties, as well as the applicable law.
52. The issue in this matter is whether the petitioner was lawfully married to the deceased or if her marriage was invalid because the prior marriage of the decedent was allegedly monogamous and had not been dissolved.
53. I note that there is no contestation that the marriage between the petitioner and the deceased was indeed celebrated. It would appear to me that at the time of the celebration of the said marriage, the deceased did not suffer from any infirmity of the body or mind that perverted his intentions. Although he had been ailing for a long period of time, leading to his kidney transplant, his cognitive ability, at the time of the marriage and thereafter, was not questioned. In essence, he knew what he was doing.
54. The evidence adduced shows that the 3rd Applicant and the deceased had separated and did not live together for a long period of time. As a matter of fact, the 3rd Applicant lives in Canada, while the deceased died in Mombasa. Since going to Canada in 2001, the 3rd applicant came back to Kenya only once during the time the deceased was alive. When the deceased became unwell, it was the Petitioner/Respondent who took care of him and even donated her kidney to him.
55. Ms Aruna’s reasons for going to Canada were, first, to help Varun and Yatika settle into college, and second, to take care of her ailing mother. Even after those reasons had become moot, following her mother’s death and the children’s graduation, she never returned. This was despite the fact that her husband was ailing in Kenya and needed her companionship, love and care.
56. On one occasion, she came back in 2014, she appeared to have made peace with the fact that the decedent had moved on and found love in the arms of Ms Rupa Gupta. The applicants grudgingly accepted, during the oral hearing, that the deceased lived with the petitioner and that the latter played a significant role in the decedent’s life. It is inconceivable that she could have done all the things they accuse her of if she hadn’t been close to him.
57. In my view, there was not much of a marriage between the deceased and the 3rd Applicant at the time of his demise. It would appear to me that each party had moved on. In my view, this is the one instance in which the court must make a presumption of divorce. I rely on the persuasive authority of the case of the
In re Estate of Jecinter Njoki Okoth (Deceased) [2020] KEHC 7562 (KLR). In the said case, the Court stated as follows:
“In my view, the objector’s cause does not hold water. It is the view of this court that the deceased moved on with her life as she had abandoned the marriage with the objector, engaged in relationships with other men other that the objector, behaved and conducted herself like a single person, a free woman capable of entering into a marriage and actually solemnized the marriage with the petitioner and acquire properties together, after many years of having lived away from the objector. This shows that she had no intention of going back to the objector. These are all indicators that the deceased had moved on permanently. This is distinguishable from adultery in the sense that in adultery does not have an intention to abandon the marriage.
The marriage between the deceased and the objector was founded upon the basis of presumption of marriage and it is logical to say if the same is applied mutatis mutatis to the circumstances of this case, a presumption that they divorced suffices. The circumstances that the deceased find herself in can safely satisfy a presumption of divorce.”
58. In the case of NELIA WANJIRU GITUMBI vs JACINTA WANJIRU GITUMBI,JOSEPH KAGWIRI GITUMBI [2003] KEHC 925 (KLR) it was held that:
“In my opinion, the moot question is not the marriage between the two but the effect of total and continued separation from 1979 and the Applicant being given a portion of her father’s land. Even as per the counsel for the Applicant he stressed more on the presumption of marriage due to long cohabitation and repute. If so, the long separation will, in my humble opinion, be presumed as evincing an intention on the part of the Applicant of dissolution of the marriage. More so when her father has taken her back and settled her on his own land by apportioning a piece from the land. She has never gone back except for attending two funerals. No evidence was led that she participated in those funerals as a daughter in law and a widow.”
59. Similarly, in the case of the In re Estate of Henry Mbogo Kuria (Deceased) [2025] KEHC 10818 (KLR) Ndungu J held that:-
“ I take the view that it would be a travesty of justice of monumental proportions to allow a spouse who during the existence of marriage abandons the other spouse for a lengthy period engaging in independent economic and social activities with no regard at all to the other spouse only to return and seek to inherit what the other spouse could have toiled to put together in her long absence.”
60. I agree with the sentiments expressed above. The Court must take into account the parties’ lived reality rather than be imprisoned by assumptions unchained from the facts.
61. My view is buttressed by the Constitution, which declared at Article 45(2) that “Every adult has the right to marry a person of the opposite sex, based on the free consent of the parties.” I am of the opinion that marriage may subsist only as long as there is a consensus ad idem between the spouses that it may continue. To hold otherwise is to conceive marriage as some form of prison and would be a denial of the constitutional promise of consent.
62. What flows from above is that I am unwilling to invalidate the marriage between the deceased and the petitioner. In my view, she was the deceased's wife. The marriage was known to Ms Aruna and the family, as evidenced by Mr Varun's affidavit and the oral evidence tendered during the hearing.
63. Being a wife, I find and hold that the petitioner was under no obligation to get the consent of Varun and Yatika, as under Section 66 of the Law of Succession Act, she ranked higher than they. This is clear from Rule 26(1) of the Probate and Administration Rules which provides that:
“Letters of administration shall not be granted to any applicant without notice to every other person entitled in the same degree as or in priority to the applicant.”
64. Having been the deceased's wife, the petitioner had the capacity to file the petition. There was, therefore, no defect in the manner in which the petition was filed. The resultant grant was therefore lawful.
65. Mr Varun Gupta averred that the petitioner was a “mujra dancer.” Whereas she may as well have been, that, of itself, does not mean that the deceased was incapable of falling in love with her or that her station in life could not improve. Mr Varun Gupta appears to be stuck in classist thinking that should not be acceptable in this day and age. His father had every right, in exercising his agency and autonomy, to look for love wherever he could find it.
66. I am of the opinion, in any event, that to recognize, on the one hand, that marriage was dead during his lifetime, and to give it legal force upon death would, to me, be rather bizarre.
67. There were attempts to paint the petitioner as a gold-digger. I am not persuaded that she was. She risked her life to donate a kidney to the deceased, something the applicants, for whatever reason, failed to do. No evidence was adduced to show that Ms Rupa was paid to donate her kidney. In my view, the allegation that her act of kindness was motivated by commercial reasons was a scurrilous attempt to besmirch her reputation so that she could be disinherited.
68. What of the gazette notice? It is evident that the gazette notice had an error which cannot be blamed on the petitioner. The applicants did not say that the publication was fraudulent or that it did not emanate from the Government Printer. Since the date of the deceased's death is uncontested, it is clear that the date in the notice was erroneous. To punish the petitioner for an error that she did not author would be oppressive. This Court will not concern itself with an error that does not create an injustice, in keeping with the maxim “de minimis non curat lex.”
69. I am not persuaded that there was fraud of any kind. In the circumstances, the summons dated 17th February 2021 is dismissed with no orders as to the costs.
70. It is so ordered.
Dated and signed at Nairobi this 7th day of July 2026.