(Being an appeal from the ruling of Hon Eric Malesi (PM) delivered on 29 th October 2025 in Madiany SPMCC Succession Cause No. E006 of 2022)
1. The appeal herein arises from the ruling of Hon Erick Malesi (PM) dated 29/10/25 in Madiany SPMCC Succession Cause No. 6 of 2022 wherein he dismissed the Appellant’s summons for revocation of grant dated 3/7/2025.
2. The Appellant were aggrieved by the aforesaid ruling and duly filed an amended Memorandum of Appeal dated 5/12/2025 wherein he raised the following grounds of appeal namely:
i) The learned magistrate erred in law and in fact by mischaracterizing the Appellant’s claim as one of dependency under Section 29 of the Law of Succession Act instead of determining it as a revocation application for concealment of beneficiaries under Section 76(b) and (c).
ii) The magistrate erred by disregarding clear documentary evidence establishing the Appellant’s lineage as a grandson of the deceased, including the birth certificate, Chief’s letter, death certificates, and family tree, all of which were admitted and never impeached.
iii) The learned magistrate erred in law and in fact by disregarding the testimony of the Appellant’s witnesses who testified and identified the Appellant as a grandson of the deceased, and by faulting the Appellant for failure to call alleged siblings as witnesses, yet the said persons were not biological children of the Appellant’s father, were not beneficiaries, had no locus in the proceedings, and their presence had no probative value in determining the Appellant’s lineage or entitlement.
iv) The magistrate erred in fact by holding that the Appellant was born ten months after the death of his father which holding is not correct.
v) The learned magistrate erred in fact and in law by ignoring established precedent and thus venturing into medical speculation that a child could not be born ten months after the father’s death, without any expert evidence, and thereby substituting medical expertise with personal conjecture.
vi) The learned magistrate erred in law and in fact by rejecting and discrediting the Chief’s letter dated 13 th August 2025 on the speculative assertion that the Chief was under pressure, yet no allegation of coercion was pleaded by any party, no evidence was adduced to support such a finding, and that the said letter was admitted on record and was never disputed, impeached, or challenged.
vii) The magistrate exceeded judicial competence by ignoring the legal presumption of legitimacy arising from a duly issued birth certificate, contrary to Section 83 of the Evidence Act and Section 12 of the Registration of Births and Deaths Act.
viii) The court failed to appreciate the burden of proof, wrongly placing upon the Appellant the duty to prove paternity when the Respondent bore the legal obligation to disprove it but offered no rebuttal evidence.
ix) The magistrate erred in law by confirming a grant obtained through concealment and misrepresentation of heirs, contrary to Section 51(2)(g) of the Law of Succession Act and Rule 7(1)(e) of the Probate and Administration Rules.
x) The court failed to evaluate or reference crucial evidence including the Chief’s letter dated 29 th November 2020, family tree (MOO4), and the Green Card showing unlawful transfer of UYOMA/KATWENGA/1403 to the Respondent on 21 st May 2025.
xi) The magistrate erred in fact and law by holding that the Objector failed to prove any grounds for revocation as stipulated in section 76 of the Law of Succession Act
xii) The magistrate failed to issue a reasoned decision, giving only a blanket dismissal that the “Objector’s claim wholly fails,” thereby violating Articles 47(2) and 50(1) of the Constitution on the right to a fair hearing and reasoned judgment.
xiii) The entire ruling was against the weight of evidence, based on conjecture, and occasioned a miscarriage of justice.
The Appellant humbly prays that this Honourable Court:
1. Allows this appeal and sets aside the Ruling delivered on 29th October, 2025 and Orders dated 7th November 2025 by the Senior Principal Magistrate’s Court at Madiany.
2. Revokes and annuls the Grant of Letters of Administration issued on 6 October 2022 and the Certificate of Confirmation of Grant dated 11 January 2023.
3. Cancels the registration of land parcel UYOMA/KATWENGA/1403 in the Respondent’s name and restores the same to the name of the deceased pending lawful redistribution.
4. Issues an order of inhibition to preserve the estate pending lawful confirmation proceedings.
5. Orders that a fresh confirmation of grant be undertaken to include all rightful beneficiaries, including the household of the late Josiah Odhiambo Oginga.
6. Awards costs of this appeal to the Appellant.
3 This being the first appellate court, its duty is to re-evaluate the evidence and come to its own conclusion as to whether or not to uphold the decision of the trial court. The court must also take into account the fact that it neither saw nor heard the witnesses as they testified and therefore it must give due allowance for that. See Selle & Another vs Associated Motor Boat Company Ltd & Others [1968] 1EA 123; Peters v. Sunday Post Ltd (1958) EA 424.
4 The evidences tendered before the trial court was at follows:
5. Alfred Oyoyo (OW1), testified that he is the Chief of South Uyoma Location. That he wrote a letter in the matter. That his earlier letter omitted some beneficiaries and hence he wrote a second letter including all beneficiaries.
On cross-examination, he stated that he wrote an introductory letter to the Petitioner whom he has known for over 20 years. That he wrote another letter on instructions from someone who introduced himself as a lawyer.
On re-examination, he stated that “We should believe the letter.”
6. Moses Otieno Odhiambo (OW2), was the Objector who identified himself as a teacher from Lieta, South Uyoma. That he adopted his witness statement as his evidence in chief.
On cross-examination, he stated inter alia; that Josiah is his father; that he was born on 14/5/1982; that the death certificate he filed shows Josiah died on 17/8/1981; that he is the firstborn; that his other siblings were Lucia and Mercy who were all born after 1982; that his two siblings haven’t filed statements, possibly because they know they aren’t biological children of the deceased.
On re-examination, he stated that he was born in 1982 and that his father died in 1981, which is ten months apart. That he was conceived before his father’s death. That the petitioner hasn’t provided proof that he’s not Josiah’s biological child.
7. Elizabeth Atieno Otieno (OW3) testified that the Objector herein was her nephew. She adopted her witness statement as her evidence in chief. She confirmed that Moses is the son of her cousin brother Josiah.
On cross-examination, she stated that she saw Moses and his father together and that she identified a birth certificate shown to her.
8. Alfred Awiti (OW4), testified that he is a peasant farmer from Iweya and duly adopted his filed statement as his evidence in chief. He stated that Moses’ father is Josiah Odhiambo Oginga, son of Henry Oginga Odongo, and that Moses was born during Josiah’s lifetime.
On cross-examination, and upon being shown a birth certificate, he maintained that Josiah died in 1981 but was still alive when Moses was born.
9. Jorim Otieno Asesa (OW5), testified that he is a farmer from Iweya. He adopted his filed statement as his evidence in chief. He testified that when Moses was born, his father Josiah was still alive.
On cross-examination, he stated inter alia; that he couldn’t fully remember when Josiah died but agreed it could be 1981; that Josiah had four children, with Moses as the firstborn, and that three were biological children; that “a dead person cannot conceive”; that Josiah died when Moses was still very young, but he couldn’t recall Moses’ birth date.
On r-examination, he clarified that Josiah died leaving behind Moses.
10. That marked the close of the Objector’s case.
11. Samuel Odongo Oginga (RW1) adopted his statement as his evidence in chief. He stated that he is a retired civil servant, and that he had his affidavit admitted as evidence. He stated that Josiah was not survived by any beneficiary.
On cross-examination, he stated that Josiah did not have a child and never had a wife, but confirmed that Moses stays next to their home.
12. That marked the close of the Petitioner’s case.
13. The trial court later considered the rival issues and came up with the impugned ruling.
14.The appeal was canvassed by way of written submissions. Parties duly complied.
15. Learned counsel for the Appellant raised three issues for determination inter alia; whether the trial court erred in finding that the Appellant is not a grandson of the deceased and thus not a beneficiary of the deceased; Whether the appellant established and proved grounds for revocation of grant; Whether the decision/ruling of the trial magistrate was against the weight of evidence.
16. As regards the first issue, the Appellant contended that the trial court mad e a wrong decision regarding the issue of his evidence regarding his birth. The Appellant revisited the issue of his birth and maintained that he was born on 24/5/1982 while his father Josiah Odhiambo Oginga died on 17/8/1981 which is approximately 245 days before he was born and which is below the stated 280 days by law. The Appellant took issue with the trial court’s finding that he was not a child of the late Josiah Odhiambo Oginga as he was born ten months after the dearth of his alleged birth. The Appellant’s counsel submitted that this finding was erroneous as it does not tally with the provisions of section 118of the Evidence Act which provides as follows:
“ The fact that any person was born during the continuance of a valid marriage between his mother and any man, or within two hundred and eighty days after its dissolution, the mother remaining unmarried, shall be conclusive proof that he is the legitimate son of that man, unless it can be shown that the parties to the marriage had no access to each other at any time when he could have been begotten”
It was contended that the Respondent did not avail evidence which impeached the authenticity of the birth certificate and hence the court ought to accept the Appellant’s paternity. Reliance was placed in the case of In re Estate of Francis Maina Kabiru (Deceased) (Succession Cause 2484 of 2007) [2023] КЕНС 21800 (KLR) (Family) (21 July 2023) where the court held as follows:
"In my view therefore, an entry in the Register of Births and Deaths and subsequent issuance of a birth certificate is the best evidence as to the parentage of a child. I am obligated to accept this as factual unless the authenticity of the entry is sufficiently challenged. In the instant case, the Respondent did not raise any credible challenge to the authenticity of the Birth Certificate’
It was the view of learned counsel for the Appellant that the Appellant is the legitimate son of the late Josiah Odhiambo Oginga and is thus a grandson of the deceased herein. It was also contended that even if the Appellant had been born posthumously, the same does not disentitle him from the estate. In the case of Rose Nafula Wanyama v Nusra Nasambu Chibanga & Ano (2020) eKLR, [Quoted In re Estate of Peter Njoroge Karanja
(Deceased) (Succession Cause 296 of 1989) [2023] K ЕНС 21213 (KLR) (27 July 2023 where the Court of Appeal held :
“A posthumous child born after the death of a husband cannot inherit from the estate of the deceased unless such a child was in utero when the husband died. The child must be bor n within ten (10) Iunar months after the husband's death to be entitled to an inheritance. “
It was submitted that the Appellant was conceived before Josiah Odhiambo Oginga's death and born within the gestation period of ten 10) Lunar months after the death of Josiah Odhiambo Oginga and that he was a posthumous child, fully protected by law as the biological child of the deceased and therefore, is entitled and has a right to benefit from the Estate of Henry Odongo Oginga (deceased) who is his direct grandfather in place of his late biological father Josiah Odhiambo Oginga, who predeceased Henry Odongo (Deceased.
The Appellant also took issue with the trial court for rejecting the chief’s letter yet the chief who authored it turned up in court and testified. That the Chief in his letter shed light and added more beneficiaries to his letter of 29 th November, 2020 which letter was used by the Respondent as the Petitioner to obtain grant and thereafter confirmed the grant of the estate of Henry Oginga Odongo (Deceased). That the Chief in his letter details the names of the beneficiaries who were not included in his letter of 29 th November, 2020 and who confirmed that his said letter should be believed and thus the second letter dated 13/8/2025 is a clear indication that the Appellant and others who are the beneficiaries in the estate ought to be considered and that it was erroneous for the trial court to dismiss the letter without credible reason.
The Appellant also faulted the trial magistrate for confirming that the two witnesses presented by the Appellant identified him as a grandson of the deceased but again goes ahead to refuse to accept the testimony/evidence by the witnesses on the ground that the evidence of the witnesses cannot take precedence over the birth certificate produced by the Appellant. That the trial magistrate did not support his decision by any precedence/evidence. In re Estate of M’ Ngarithi M’ Miriti (Deceased) [2017] eKLR where
the court held that paternity can be proved on a balance of probabilities. It was submitted that this authority clearly contradicts the decision of the trial magistrate.
17. As regards the second issue, it was submitted that the trial magistrate erred in holding that the Appellant has not proved any ground as required by section 76 of the Succession Act to warrant revocation of grant. That the Appellant is a direct grandson of the deceased and therefore, a beneficiary of his estate and that he and others were not included in the petition and confirmation of the grant for the Estate of Henry Oginga Odinga (deceased).
That the omission/exclusion of the Appellant in particular from participation and benefit in the estate of the deceased while knowing that he is a beneficiary amounts to the Respondent obtaining grant fraudulently by making of false statement or by concealment from the court of something material to the case, is in contravention of section 76 (b) of Succession Act. That obtaining grant by means of untrue allegation of fact essential in point of law to justify the grant notwithstanding that the allegation was made in ignorance or inadvertently contravenes section 76 (c) of Succession Act. That contravention of the sections 76 (b) or (c) is a ground for revocation of grant whether confirmed or not. That the Respondent contravened section 76(b) and (c) and the grant therefore, is liable for revocation.
Reliance was placed in the case of Priscilla Ndubi & Zipporah Mutiga (Petitioners) Vs. Gerishon Gatobu Mbui Succession Cause No 720 Of 2013, In The High Court Of Kenya At MERU where the court in revoking the grant for violation of sections 76 (b) and 76 (c) held,
“But of relevance in these proceedings is that such material facts were never disclosed to this court during confirmation of the grant so as to enable the court make an informed decision on distribution of the estate. Needless to state that, in any judicial proceeding, parties must make full disclosures to the court of all material facts to the case including succession cases. This general rule of law emphasizes utmost good faith (uberimaefidei) from parties who take out or are subject of the court proceedings. The said responsibility is part of justice itself. Accordingly, non-disclosure of material facts undermines justice and introduces festering waters into the pure steams of justice; such must, immediately be subjected to serious reverse osmosis to purify the streams of justice, if society is to be accordingly regulated by law. I will give ample justification for taking this position. The primary duty of the Probate Court is to distribute the estate of the deceased to the rightful beneficiaries.”
Learned counsel submitted that the Appellant has demonstrated in the preceding paragraphs herein above that the Appellant is a grandson of the Henry Oginga Odongo (Deceased) and should have been included by the Respondent as a beneficiary in the estate of Henry Oginga Odongo (Deceased) but the Appellant was not included at all. The Respondent therefore, violated sections 76(b) and 76(c) of the Succession Law and the grant should be revoked as per the law.
It was submitted that the trial magistrate at paragraph 8 of his Ruling for unknown reasons did not include sections 76 (b) and 76(c) as grounds for revocation of grant but curiously listed only other 3 grounds required for revocation of grant and which was a deliberate attempt by the trial magistrate to justify his impugned decision at paragraph 9 of his Ruling. It was contended that the Respondent having violated sections 76(b) and &76 (c) of the Succession Act, this Honorable Court should do the reasonable and revoke the grant without hesitation.
18. It was also submitted that the trial magistrate’s decision was erroneous in that he disregarded and failed to correctly evaluate the following evidences:
◾ He disregarded the Chief’s letter dated 13 th August 2025 despite the fact that the letter confirmed that the Appellant was a beneficiary of the deceased’s estate but had not been included in his earlier letter of introduction dated 29 th November, 2020
◾ The trial magistrate disregarded the birth certificate, law and court precedent which clearly confirmed that the Appellant was indeed born within human gestation period of 10 months within the death of his father and therefore, a beneficiary of the estate of deceased. The holding by the trial magistrate at paragraph 10 of his ruling that the Appellant was born 10 months after the death of his father and that this was not biologically possible, is misconceived, without basis, erroneous and therefore, led to wrong decision. Furthermore
it is important to note that the Appellant was born within 9months and 7 days after the death of his father and not after 10 months after the father’s death.
◾ The trial magistrate disregarded sections 76(b) and 76(c) of Succession Act which is applicable to this case and as a consequence reached an erroneous decision of dismissing the Appellant’s case.
◾ The trial magistrate disregarded the Green Card that clearly showed unlawful transfer of Land parcel No. Uyoma/Katwenga/1403 to the Respondent.
◾ The trial magistrate disregarded the family tree of the Appellant and the Respondent.
19. It was finally contended that the Appellant brought his claim as a grandson and beneficiary of the estate of Henry Oginga Odongo (Deceased) and that he led evidence to that effect. That the Appellant sought relief under section 76 of Succession Act for revocation of grant. The trial magistrate however, at paragraph 13 of his ruling mischaracterized the Appellant’s claim as that of dependency and ruled against the Appellant in that he did not adduce evidence to show that he was a dependent of the deceased to warrant the Appellant to inherit from the estate of the deceased. It was submitted that the ruling is based on dependency and not on revocation under section 76 of Succession Act claimed by the Appellant and that the same is inconsistent with the Appellant’s claim and is therefore, erroneous. The Appellant having adduced evidence i.e birth certificate, court precedent, witness testimony etc as to his paternity, the burden of disapproving/ impeaching that evidence shifted to the Respondent and that there is no evidence that the Respondent discharged that burden.
20. The Appellant therefore urged this court to allow the Appeal in its entirety and grant all the prayers with costs.
21. Learned counsel for the Respondent started off by submitting that the law governing revocation or annulment of grant is Section 76 of the Law of Succession Act, Cap 160 Laws of Kenya, and Rule 44 of the Probate and Administration Rules. Section 76 stipulates as follows:
A grant of representation, whether or not confirmed, may at any time be revoked or annulled if the court decides, either on application by any interested party or of its own motion:-
a) that the proceedings to obtain the grant were defective in substance;
b) that the grant was obtained fraudulently by the making of a false statement or by the concealment from the court of something material to the case;
c) that the grant was obtained by means of an untrue allegation of a fact essential in point of law to justify the grant notwithstanding that the allegation was made in ignorance or inadvertently;
d) that the person to whom the grant was made has failed, after due notice and without reasonable cause either—
i) to apply for confirmation of the grant within one year from the date thereof, or such longer period as the court order or allow; or
ii) to proceed diligently with the administration of the estate; or
iii) to produce to the court, within the time prescribed, any such inventory or account of administration as is required by the provisions of paragraphs (e) and (g) of section 83 or has produced any such inventory or account which is false in any material particular; or
e) that the grant has become useless and inoperative through subsequent circumstances.
22. That on this issue, it was submitted that the burden of proof lay with the Appellant who was under duty to prove that the process was defective, either because some mandatory procedural step was omitted, or the persons applying for representation was not competent or suitable for appointment, or the deceased died testate having made a valid will and
then a grant or letters of administration intestate was made instead of a grant of probate, or vice versa. It could also be that the process was marred by fraud and misrepresentation or concealment of matter, such as where some survivors are not disclosed or the Applicant lies that he is a survivor when he is not, among other reasons.
That the burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side. The burden of proof as to any particular fact lies on that person who wishes the court to believe its existence, unless it is provided by any law that the proof of that fact shall be on any particular person. See section 107 of the Evidence Act.
In Lewis Waruiro vs Moses Muriuki Muchiri (2012) CA 106, it was held that:
“All cases are decided on the legal burden of proof being discharged (or not). Lord Brandon in Rhesa Shipping Co SA vs Edmunds remarked: ‘no Judge likes to decide cases on the burden of proof if he can legitimately avoid having to do so. There are cases, however, in which, owing to the unsatisfactory state of the evidence or otherwise, deciding on the burden of proof is the only just course to take.’
Thus, the legal burden of proof is consciously or unconsciously the acid test applied when coming to a decision in any particular case. This fact was succinctly put forth by Rajah J in Britestone Pte Ltd vs Smith & Associates Far East Ltd (2007) 4 SLR 855 as follows:
“The court’s decision in every case will depend on whether the party concerned has satisfied the particular burden and standard of proof imposed on him.”
It is therefore a well-established rule of evidence that whoever asserts a fact is under an obligation to prove it in order to succeed. The standard determines the degree of certainty with which a fact must be proved to satisfy the court of the fact. In civil cases the standard of proof is on the balance of probabilities. In the case of Miller vs Minister of Pensions (1947) 2 All ER 372, Lord Denning said the following about the standard of proof in civil cases:
“The Standard of proof is well settled. It must carry a reasonable degree of probability…if the evidence is such that the tribunal can say, ‘we think it more probable than not’ the burden is discharged, but, if the probabilities are equal, it is not.”
It is a fundamental principle of law that a litigant bears the burden or onus of proof in respect of the propositions he asserts to prove his claim. The standard of proof, in essence can loosely be defined as the quantum of evidence that must be presented before a court a fact can be said to exist or not exist.
In this case, the objector bears the burden of proving that he is a child of Josiah Odhiambo Oginga and a dependent of the deceased and therefore of his estate and that therefore he is entitled to benefit from his estate.
23. As regards the issue whether the grant ought to be annulled based on the objectors’ chiefs letter, it was submitted that the Appellants counsel made an application to have the Chief be summoned to court to explain the contents of the introduction letter dated 29.11.20 and another dated 13.8.25. That what came out clearly, the chief alleged that he never knew the objector. In fact, the objector never appeared before him to draw an introduction letter. He testified that while he was conducting his business, he received a call from a lawyer to have him write the letter dated 13.8.25. It was contended that the chief, under the undue influence of the lawyer, without the parties appearing before him, wrote a letter. That the authority to write the letter came after they had filed their application to have the trial court revoke the petitioner’s grant. That the chief on the other hand testified that he knew the petitioner and his family for over 20 years and he properly did the introduction letter. The question is which letter was properly written? Black’s Law Dictionary defines undue influence as follows:
“Persuasion, pressure or influence, short of actual force, but stronger than mere advice, that so overpowers the dominated party’s free will or judgment that he or she cannot act intelligently and voluntarily, but acts, instead, subject to the will or purposes of the dominating party.”
It was submitted that the chief wrote the second letter under undue influence thus the same should be discredited. That the chief categorically stated, during cross examination, that he did not know the Appellant.
It was contended that the chief’s letter cannot be used as proof of who the parents of the objectors is. That the letter is just used to inform who the beneficiaries are and where there is a dispute more evidence is required to prove that one is a child on the deceased. That the findings of the trial court which he relied on the first letter where the chief was not unduly influenced must be upheld.
24. As to whether the objector is a son to Josiah Oginga, the son to Henry Oginga, it was submitted that paternity is central to the dispute at hand, whether the objector is the biological grandchild of the deceased hence the beneficiaries of the estate of the deceased’s estate. That the objector claimed that he is a biological grandchild of the deceased, while the petitioner stated that that the objector is a neighbour to the deceased. That the petitioner avers that his elder brother Josiah died leaving no beneficiary.
In re Estate of Mbuthi Mungushi Igiria (Deceased) (Succession Cause E375 of 2022) [2024] KEHC 5216 (KLR) (Family) (26 April 2024) (Judgment), Nyakundi J held as follows:
“With regard to the interested parties, it is contended that they are children of the deceased and the evidence in support of that assertion is that they bear the name of the deceased on their respective Identity Cards. In dismissing this claim of the interested parties, I note that apart from the acknowledgment by a parent, the only other way one can prove who their parents are, is a birth certificate or DNA results. An Identity Card cannot be evidence of the paternity of an individual as on its own it does not identify who the parents are.”
It was submitted that the Objector relied and adopted his witness statement and produced a death certificate of his father and his birth certificate. That the death certificate shows Josiah Oginga who died on 17.08.1981, whereas his birth certificate shows that he was born on 24.05.1982.
That PW1 on cross examination, confirmed that he was born as shown in his birth certificate. He confirmed that Josiah died as was shown in the death certificate. He also told the court, through an analogical series of questioning that it is an impossibility to be born in 1982, if a parent died in 1981. It was contended when approached with a series of questions pertaining this case, he stated he actually saw his father, Josiah for a few months, meaning he was alive after 1982. He claims that his father died in 1981, yet he also claims he saw him after 1982. He also stated that he is the first born of the other two siblings. It was contended that if indeed Josiah was there for a few months, then the logical deduction is that Mercy and another sibling cannot be beneficiaries. He claimed that Josiah was also the biological father of his siblings who did not appear before court to testify and corroborate the testimony of the Objector. He insisted the information in the death certificate was correctly captured
This court was urged to take in to account the testimony of the chief that he does not know the objector herein.
The Objector (OW2) also adopted his statement. On cross examination he states that he was
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1. The appeal herein arises from the ruling of Hon Erick Malesi (PM) dated 29/10/25 in Madiany SPMCC Succession Cause No. 6 of 2022 wherein he dismissed the Appellant’s summons for revocation of grant dated 3/7/2025.
2. The Appellant were aggrieved by the aforesaid ruling and duly filed an amended Memorandum of Appeal dated 5/12/2025 wherein he raised the following grounds of appeal namely:
i) The learned magistrate erred in law and in fact by mischaracterizing the Appellant’s claim as one of dependency under Section 29 of the Law of Succession Act instead of determining it as a revocation application for concealment of beneficiaries under Section 76(b) and (c).
ii) The magistrate erred by disregarding clear documentary evidence establishing the Appellant’s lineage as a grandson of the deceased, including the birth certificate, Chief’s letter, death certificates, and family tree, all of which were admitted and never impeached.
iii) The learned magistrate erred in law and in fact by disregarding the testimony of the Appellant’s witnesses who testified and identified the Appellant as a grandson of the deceased, and by faulting the Appellant for failure to call alleged siblings as witnesses, yet the said persons were not biological children of the Appellant’s father, were not beneficiaries, had no locus in the proceedings, and their presence had no probative value in determining the Appellant’s lineage or entitlement.
iv) The magistrate erred in fact by holding that the Appellant was born ten months after the death of his father which holding is not correct.
v) The learned magistrate erred in fact and in law by ignoring established precedent and thus venturing into medical speculation that a child could not be born ten months after the father’s death, without any expert evidence, and thereby substituting medical expertise with personal conjecture.
vi) The learned magistrate erred in law and in fact by rejecting and discrediting the Chief’s letter dated 13 th August 2025 on the speculative assertion that the Chief was under pressure, yet no allegation of coercion was pleaded by any party, no evidence was adduced to support such a finding, and that the said letter was admitted on record and was never disputed, impeached, or challenged.
vii) The magistrate exceeded judicial competence by ignoring the legal presumption of legitimacy arising from a duly issued birth certificate, contrary to Section 83 of the Evidence Act and Section 12 of the Registration of Births and Deaths Act.
viii) The court failed to appreciate the burden of proof, wrongly placing upon the Appellant the duty to prove paternity when the Respondent bore the legal obligation to disprove it but offered no rebuttal evidence.
ix) The magistrate erred in law by confirming a grant obtained through concealment and misrepresentation of heirs, contrary to Section 51(2)(g) of the Law of Succession Act and Rule 7(1)(e) of the Probate and Administration Rules.
x) The court failed to evaluate or reference crucial evidence including the Chief’s letter dated 29 th November 2020, family tree (MOO4), and the Green Card showing unlawful transfer of UYOMA/KATWENGA/1403 to the Respondent on 21 st May 2025.
xi) The magistrate erred in fact and law by holding that the Objector failed to prove any grounds for revocation as stipulated in section 76 of the Law of Succession Act
xii) The magistrate failed to issue a reasoned decision, giving only a blanket dismissal that the “Objector’s claim wholly fails,” thereby violating Articles 47(2) and 50(1) of the Constitution on the right to a fair hearing and reasoned judgment.
xiii) The entire ruling was against the weight of evidence, based on conjecture, and occasioned a miscarriage of justice.
The Appellant humbly prays that this Honourable Court:
1. Allows this appeal and sets aside the Ruling delivered on 29th October, 2025 and Orders dated 7th November 2025 by the Senior Principal Magistrate’s Court at Madiany.
2. Revokes and annuls the Grant of Letters of Administration issued on 6 October 2022 and the Certificate of Confirmation of Grant dated 11 January 2023.
3. Cancels the registration of land parcel UYOMA/KATWENGA/1403 in the Respondent’s name and restores the same to the name of the deceased pending lawful redistribution.
4. Issues an order of inhibition to preserve the estate pending lawful confirmation proceedings.
5. Orders that a fresh confirmation of grant be undertaken to include all rightful beneficiaries, including the household of the late Josiah Odhiambo Oginga.
6. Awards costs of this appeal to the Appellant.
3 This being the first appellate court, its duty is to re-evaluate the evidence and come to its own conclusion as to whether or not to uphold the decision of the trial court. The court must also take into account the fact that it neither saw nor heard the witnesses as they testified and therefore it must give due allowance for that. See Selle & Another vs Associated Motor Boat Company Ltd & Others [1968] 1EA 123; Peters v. Sunday Post Ltd (1958) EA 424.
4 The evidences tendered before the trial court was at follows:
5. Alfred Oyoyo (OW1), testified that he is the Chief of South Uyoma Location. That he wrote a letter in the matter. That his earlier letter omitted some beneficiaries and hence he wrote a second letter including all beneficiaries.
On cross-examination, he stated that he wrote an introductory letter to the Petitioner whom he has known for over 20 years. That he wrote another letter on instructions from someone who introduced himself as a lawyer.
On re-examination, he stated that “We should believe the letter.”
6. Moses Otieno Odhiambo (OW2), was the Objector who identified himself as a teacher from Lieta, South Uyoma. That he adopted his witness statement as his evidence in chief.
On cross-examination, he stated inter alia; that Josiah is his father; that he was born on 14/5/1982; that the death certificate he filed shows Josiah died on 17/8/1981; that he is the firstborn; that his other siblings were Lucia and Mercy who were all born after 1982; that his two siblings haven’t filed statements, possibly because they know they aren’t biological children of the deceased.
On re-examination, he stated that he was born in 1982 and that his father died in 1981, which is ten months apart. That he was conceived before his father’s death. That the petitioner hasn’t provided proof that he’s not Josiah’s biological child.
7. Elizabeth Atieno Otieno (OW3) testified that the Objector herein was her nephew. She adopted her witness statement as her evidence in chief. She confirmed that Moses is the son of her cousin brother Josiah.
On cross-examination, she stated that she saw Moses and his father together and that she identified a birth certificate shown to her.
8. Alfred Awiti (OW4), testified that he is a peasant farmer from Iweya and duly adopted his filed statement as his evidence in chief. He stated that Moses’ father is Josiah Odhiambo Oginga, son of Henry Oginga Odongo, and that Moses was born during Josiah’s lifetime.
On cross-examination, and upon being shown a birth certificate, he maintained that Josiah died in 1981 but was still alive when Moses was born.
9. Jorim Otieno Asesa (OW5), testified that he is a farmer from Iweya. He adopted his filed statement as his evidence in chief. He testified that when Moses was born, his father Josiah was still alive.
On cross-examination, he stated inter alia; that he couldn’t fully remember when Josiah died but agreed it could be 1981; that Josiah had four children, with Moses as the firstborn, and that three were biological children; that “a dead person cannot conceive”; that Josiah died when Moses was still very young, but he couldn’t recall Moses’ birth date.
On r-examination, he clarified that Josiah died leaving behind Moses.
10. That marked the close of the Objector’s case.
11. Samuel Odongo Oginga (RW1) adopted his statement as his evidence in chief. He stated that he is a retired civil servant, and that he had his affidavit admitted as evidence. He stated that Josiah was not survived by any beneficiary.
On cross-examination, he stated that Josiah did not have a child and never had a wife, but confirmed that Moses stays next to their home.
12. That marked the close of the Petitioner’s case.
13. The trial court later considered the rival issues and came up with the impugned ruling.
14.The appeal was canvassed by way of written submissions. Parties duly complied.
15. Learned counsel for the Appellant raised three issues for determination inter alia; whether the trial court erred in finding that the Appellant is not a grandson of the deceased and thus not a beneficiary of the deceased; Whether the appellant established and proved grounds for revocation of grant; Whether the decision/ruling of the trial magistrate was against the weight of evidence.
16. As regards the first issue, the Appellant contended that the trial court mad e a wrong decision regarding the issue of his evidence regarding his birth. The Appellant revisited the issue of his birth and maintained that he was born on 24/5/1982 while his father Josiah Odhiambo Oginga died on 17/8/1981 which is approximately 245 days before he was born and which is below the stated 280 days by law. The Appellant took issue with the trial court’s finding that he was not a child of the late Josiah Odhiambo Oginga as he was born ten months after the dearth of his alleged birth. The Appellant’s counsel submitted that this finding was erroneous as it does not tally with the provisions of section 118of the Evidence Act which provides as follows:
“ The fact that any person was born during the continuance of a valid marriage between his mother and any man, or within two hundred and eighty days after its dissolution, the mother remaining unmarried, shall be conclusive proof that he is the legitimate son of that man, unless it can be shown that the parties to the marriage had no access to each other at any time when he could have been begotten”
It was contended that the Respondent did not avail evidence which impeached the authenticity of the birth certificate and hence the court ought to accept the Appellant’s paternity. Reliance was placed in the case of In re Estate of Francis Maina Kabiru (Deceased) (Succession Cause 2484 of 2007) [2023] КЕНС 21800 (KLR) (Family) (21 July 2023) where the court held as follows:
"In my view therefore, an entry in the Register of Births and Deaths and subsequent issuance of a birth certificate is the best evidence as to the parentage of a child. I am obligated to accept this as factual unless the authenticity of the entry is sufficiently challenged. In the instant case, the Respondent did not raise any credible challenge to the authenticity of the Birth Certificate’
It was the view of learned counsel for the Appellant that the Appellant is the legitimate son of the late Josiah Odhiambo Oginga and is thus a grandson of the deceased herein. It was also contended that even if the Appellant had been born posthumously, the same does not disentitle him from the estate. In the case of Rose Nafula Wanyama v Nusra Nasambu Chibanga & Ano (2020) eKLR, [Quoted In re Estate of Peter Njoroge Karanja
(Deceased) (Succession Cause 296 of 1989) [2023] K ЕНС 21213 (KLR) (27 July 2023 where the Court of Appeal held :
“A posthumous child born after the death of a husband cannot inherit from the estate of the deceased unless such a child was in utero when the husband died. The child must be bor n within ten (10) Iunar months after the husband's death to be entitled to an inheritance. “
It was submitted that the Appellant was conceived before Josiah Odhiambo Oginga's death and born within the gestation period of ten 10) Lunar months after the death of Josiah Odhiambo Oginga and that he was a posthumous child, fully protected by law as the biological child of the deceased and therefore, is entitled and has a right to benefit from the Estate of Henry Odongo Oginga (deceased) who is his direct grandfather in place of his late biological father Josiah Odhiambo Oginga, who predeceased Henry Odongo (Deceased.
The Appellant also took issue with the trial court for rejecting the chief’s letter yet the chief who authored it turned up in court and testified. That the Chief in his letter shed light and added more beneficiaries to his letter of 29 th November, 2020 which letter was used by the Respondent as the Petitioner to obtain grant and thereafter confirmed the grant of the estate of Henry Oginga Odongo (Deceased). That the Chief in his letter details the names of the beneficiaries who were not included in his letter of 29 th November, 2020 and who confirmed that his said letter should be believed and thus the second letter dated 13/8/2025 is a clear indication that the Appellant and others who are the beneficiaries in the estate ought to be considered and that it was erroneous for the trial court to dismiss the letter without credible reason.
The Appellant also faulted the trial magistrate for confirming that the two witnesses presented by the Appellant identified him as a grandson of the deceased but again goes ahead to refuse to accept the testimony/evidence by the witnesses on the ground that the evidence of the witnesses cannot take precedence over the birth certificate produced by the Appellant. That the trial magistrate did not support his decision by any precedence/evidence. In re Estate of M’ Ngarithi M’ Miriti (Deceased) [2017] eKLR where
the court held that paternity can be proved on a balance of probabilities. It was submitted that this authority clearly contradicts the decision of the trial magistrate.
17. As regards the second issue, it was submitted that the trial magistrate erred in holding that the Appellant has not proved any ground as required by section 76 of the Succession Act to warrant revocation of grant. That the Appellant is a direct grandson of the deceased and therefore, a beneficiary of his estate and that he and others were not included in the petition and confirmation of the grant for the Estate of Henry Oginga Odinga (deceased).
That the omission/exclusion of the Appellant in particular from participation and benefit in the estate of the deceased while knowing that he is a beneficiary amounts to the Respondent obtaining grant fraudulently by making of false statement or by concealment from the court of something material to the case, is in contravention of section 76 (b) of Succession Act. That obtaining grant by means of untrue allegation of fact essential in point of law to justify the grant notwithstanding that the allegation was made in ignorance or inadvertently contravenes section 76 (c) of Succession Act. That contravention of the sections 76 (b) or (c) is a ground for revocation of grant whether confirmed or not. That the Respondent contravened section 76(b) and (c) and the grant therefore, is liable for revocation.
Reliance was placed in the case of Priscilla Ndubi & Zipporah Mutiga (Petitioners) Vs. Gerishon Gatobu Mbui Succession Cause No 720 Of 2013, In The High Court Of Kenya At MERU where the court in revoking the grant for violation of sections 76 (b) and 76 (c) held,
“But of relevance in these proceedings is that such material facts were never disclosed to this court during confirmation of the grant so as to enable the court make an informed decision on distribution of the estate. Needless to state that, in any judicial proceeding, parties must make full disclosures to the court of all material facts to the case including succession cases. This general rule of law emphasizes utmost good faith (uberimaefidei) from parties who take out or are subject of the court proceedings. The said responsibility is part of justice itself. Accordingly, non-disclosure of material facts undermines justice and introduces festering waters into the pure steams of justice; such must, immediately be subjected to serious reverse osmosis to purify the streams of justice, if society is to be accordingly regulated by law. I will give ample justification for taking this position. The primary duty of the Probate Court is to distribute the estate of the deceased to the rightful beneficiaries.”
Learned counsel submitted that the Appellant has demonstrated in the preceding paragraphs herein above that the Appellant is a grandson of the Henry Oginga Odongo (Deceased) and should have been included by the Respondent as a beneficiary in the estate of Henry Oginga Odongo (Deceased) but the Appellant was not included at all. The Respondent therefore, violated sections 76(b) and 76(c) of the Succession Law and the grant should be revoked as per the law.
It was submitted that the trial magistrate at paragraph 8 of his Ruling for unknown reasons did not include sections 76 (b) and 76(c) as grounds for revocation of grant but curiously listed only other 3 grounds required for revocation of grant and which was a deliberate attempt by the trial magistrate to justify his impugned decision at paragraph 9 of his Ruling. It was contended that the Respondent having violated sections 76(b) and &76 (c) of the Succession Act, this Honorable Court should do the reasonable and revoke the grant without hesitation.
18. It was also submitted that the trial magistrate’s decision was erroneous in that he disregarded and failed to correctly evaluate the following evidences:
◾ He disregarded the Chief’s letter dated 13 th August 2025 despite the fact that the letter confirmed that the Appellant was a beneficiary of the deceased’s estate but had not been included in his earlier letter of introduction dated 29 th November, 2020
◾ The trial magistrate disregarded the birth certificate, law and court precedent which clearly confirmed that the Appellant was indeed born within human gestation period of 10 months within the death of his father and therefore, a beneficiary of the estate of deceased. The holding by the trial magistrate at paragraph 10 of his ruling that the Appellant was born 10 months after the death of his father and that this was not biologically possible, is misconceived, without basis, erroneous and therefore, led to wrong decision. Furthermore
it is important to note that the Appellant was born within 9months and 7 days after the death of his father and not after 10 months after the father’s death.
◾ The trial magistrate disregarded sections 76(b) and 76(c) of Succession Act which is applicable to this case and as a consequence reached an erroneous decision of dismissing the Appellant’s case.
◾ The trial magistrate disregarded the Green Card that clearly showed unlawful transfer of Land parcel No. Uyoma/Katwenga/1403 to the Respondent.
◾ The trial magistrate disregarded the family tree of the Appellant and the Respondent.
19. It was finally contended that the Appellant brought his claim as a grandson and beneficiary of the estate of Henry Oginga Odongo (Deceased) and that he led evidence to that effect. That the Appellant sought relief under section 76 of Succession Act for revocation of grant. The trial magistrate however, at paragraph 13 of his ruling mischaracterized the Appellant’s claim as that of dependency and ruled against the Appellant in that he did not adduce evidence to show that he was a dependent of the deceased to warrant the Appellant to inherit from the estate of the deceased. It was submitted that the ruling is based on dependency and not on revocation under section 76 of Succession Act claimed by the Appellant and that the same is inconsistent with the Appellant’s claim and is therefore, erroneous. The Appellant having adduced evidence i.e birth certificate, court precedent, witness testimony etc as to his paternity, the burden of disapproving/ impeaching that evidence shifted to the Respondent and that there is no evidence that the Respondent discharged that burden.
20. The Appellant therefore urged this court to allow the Appeal in its entirety and grant all the prayers with costs.
21. Learned counsel for the Respondent started off by submitting that the law governing revocation or annulment of grant is Section 76 of the Law of Succession Act, Cap 160 Laws of Kenya, and Rule 44 of the Probate and Administration Rules. Section 76 stipulates as follows:
A grant of representation, whether or not confirmed, may at any time be revoked or annulled if the court decides, either on application by any interested party or of its own motion:-
a) that the proceedings to obtain the grant were defective in substance;
b) that the grant was obtained fraudulently by the making of a false statement or by the concealment from the court of something material to the case;
c) that the grant was obtained by means of an untrue allegation of a fact essential in point of law to justify the grant notwithstanding that the allegation was made in ignorance or inadvertently;
d) that the person to whom the grant was made has failed, after due notice and without reasonable cause either—
i) to apply for confirmation of the grant within one year from the date thereof, or such longer period as the court order or allow; or
ii) to proceed diligently with the administration of the estate; or
iii) to produce to the court, within the time prescribed, any such inventory or account of administration as is required by the provisions of paragraphs (e) and (g) of section 83 or has produced any such inventory or account which is false in any material particular; or
e) that the grant has become useless and inoperative through subsequent circumstances.
22. That on this issue, it was submitted that the burden of proof lay with the Appellant who was under duty to prove that the process was defective, either because some mandatory procedural step was omitted, or the persons applying for representation was not competent or suitable for appointment, or the deceased died testate having made a valid will and
then a grant or letters of administration intestate was made instead of a grant of probate, or vice versa. It could also be that the process was marred by fraud and misrepresentation or concealment of matter, such as where some survivors are not disclosed or the Applicant lies that he is a survivor when he is not, among other reasons.
That the burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side. The burden of proof as to any particular fact lies on that person who wishes the court to believe its existence, unless it is provided by any law that the proof of that fact shall be on any particular person. See section 107 of the Evidence Act.
In Lewis Waruiro vs Moses Muriuki Muchiri (2012) CA 106, it was held that:
“All cases are decided on the legal burden of proof being discharged (or not). Lord Brandon in Rhesa Shipping Co SA vs Edmunds remarked: ‘no Judge likes to decide cases on the burden of proof if he can legitimately avoid having to do so. There are cases, however, in which, owing to the unsatisfactory state of the evidence or otherwise, deciding on the burden of proof is the only just course to take.’
Thus, the legal burden of proof is consciously or unconsciously the acid test applied when coming to a decision in any particular case. This fact was succinctly put forth by Rajah J in Britestone Pte Ltd vs Smith & Associates Far East Ltd (2007) 4 SLR 855 as follows:
“The court’s decision in every case will depend on whether the party concerned has satisfied the particular burden and standard of proof imposed on him.”
It is therefore a well-established rule of evidence that whoever asserts a fact is under an obligation to prove it in order to succeed. The standard determines the degree of certainty with which a fact must be proved to satisfy the court of the fact. In civil cases the standard of proof is on the balance of probabilities. In the case of Miller vs Minister of Pensions (1947) 2 All ER 372, Lord Denning said the following about the standard of proof in civil cases:
“The Standard of proof is well settled. It must carry a reasonable degree of probability…if the evidence is such that the tribunal can say, ‘we think it more probable than not’ the burden is discharged, but, if the probabilities are equal, it is not.”
It is a fundamental principle of law that a litigant bears the burden or onus of proof in respect of the propositions he asserts to prove his claim. The standard of proof, in essence can loosely be defined as the quantum of evidence that must be presented before a court a fact can be said to exist or not exist.
In this case, the objector bears the burden of proving that he is a child of Josiah Odhiambo Oginga and a dependent of the deceased and therefore of his estate and that therefore he is entitled to benefit from his estate.
23. As regards the issue whether the grant ought to be annulled based on the objectors’ chiefs letter, it was submitted that the Appellants counsel made an application to have the Chief be summoned to court to explain the contents of the introduction letter dated 29.11.20 and another dated 13.8.25. That what came out clearly, the chief alleged that he never knew the objector. In fact, the objector never appeared before him to draw an introduction letter. He testified that while he was conducting his business, he received a call from a lawyer to have him write the letter dated 13.8.25. It was contended that the chief, under the undue influence of the lawyer, without the parties appearing before him, wrote a letter. That the authority to write the letter came after they had filed their application to have the trial court revoke the petitioner’s grant. That the chief on the other hand testified that he knew the petitioner and his family for over 20 years and he properly did the introduction letter. The question is which letter was properly written? Black’s Law Dictionary defines undue influence as follows:
“Persuasion, pressure or influence, short of actual force, but stronger than mere advice, that so overpowers the dominated party’s free will or judgment that he or she cannot act intelligently and voluntarily, but acts, instead, subject to the will or purposes of the dominating party.”
It was submitted that the chief wrote the second letter under undue influence thus the same should be discredited. That the chief categorically stated, during cross examination, that he did not know the Appellant.
It was contended that the chief’s letter cannot be used as proof of who the parents of the objectors is. That the letter is just used to inform who the beneficiaries are and where there is a dispute more evidence is required to prove that one is a child on the deceased. That the findings of the trial court which he relied on the first letter where the chief was not unduly influenced must be upheld.
24. As to whether the objector is a son to Josiah Oginga, the son to Henry Oginga, it was submitted that paternity is central to the dispute at hand, whether the objector is the biological grandchild of the deceased hence the beneficiaries of the estate of the deceased’s estate. That the objector claimed that he is a biological grandchild of the deceased, while the petitioner stated that that the objector is a neighbour to the deceased. That the petitioner avers that his elder brother Josiah died leaving no beneficiary.
In re Estate of Mbuthi Mungushi Igiria (Deceased) (Succession Cause E375 of 2022) [2024] KEHC 5216 (KLR) (Family) (26 April 2024) (Judgment), Nyakundi J held as follows:
“With regard to the interested parties, it is contended that they are children of the deceased and the evidence in support of that assertion is that they bear the name of the deceased on their respective Identity Cards. In dismissing this claim of the interested parties, I note that apart from the acknowledgment by a parent, the only other way one can prove who their parents are, is a birth certificate or DNA results. An Identity Card cannot be evidence of the paternity of an individual as on its own it does not identify who the parents are.”
It was submitted that the Objector relied and adopted his witness statement and produced a death certificate of his father and his birth certificate. That the death certificate shows Josiah Oginga who died on 17.08.1981, whereas his birth certificate shows that he was born on 24.05.1982.
That PW1 on cross examination, confirmed that he was born as shown in his birth certificate. He confirmed that Josiah died as was shown in the death certificate. He also told the court, through an analogical series of questioning that it is an impossibility to be born in 1982, if a parent died in 1981. It was contended when approached with a series of questions pertaining this case, he stated he actually saw his father, Josiah for a few months, meaning he was alive after 1982. He claims that his father died in 1981, yet he also claims he saw him after 1982. He also stated that he is the first born of the other two siblings. It was contended that if indeed Josiah was there for a few months, then the logical deduction is that Mercy and another sibling cannot be beneficiaries. He claimed that Josiah was also the biological father of his siblings who did not appear before court to testify and corroborate the testimony of the Objector. He insisted the information in the death certificate was correctly captured
This court was urged to take in to account the testimony of the chief that he does not know the objector herein.
The Objector (OW2) also adopted his statement. On cross examination he states that he was
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