(Being an appeal arising from the Judgment delivered by Hon. Mkala Jacob Punga RM in Siaya CM Succ No. 444 of 2022 delivered on 12 th day of July 2024).
JUDGMENT
The Appellant herein filed the present appeal arising from the judgment of Honourable Jacob Punga Mkala delivered on 12/7/2024 in Siaya CM SUCC No. 444 of 2022 wherein he allowed the Objectors’ application dated 20/2/2024 and revoked the grant that had been issued to the petitioner and further ordered that a new gnat be issued to the Petitioner and two of the Objectors and a third one and who were ordered to file fresh summons for confirmation of grant upon issuance of the new grant.
Being aggrieved by the said decision the Appellant filed Appellant filed his Memorandum of Appeal dated 30/7/2024 wherein he raised the following grounds of appeal:
That the learned Magistrate erred in law and in fact by failing to trike out the summons for Objection to confirmation of grant which was patently and manifestily defective.
That the learned magistrate erred in law and in fact by failing to uphold that parties are bound by their pleadings.
That the learned magistrate occasioned a miscarriage of justice by descending into the arena of litigation.
That the learned magistrate misapplied the provisions of Article 159 (2) of the Constitution.
That the learned magistrate erred in law and in fact by treating the Appellant evidence and the Appellant submissions superficially and without adequate weight and thereby grossly misdirected himself and arrived at an erroneous decision.
That the learned magistrate erred in law and in fact by finding that Thomas Odol had inherited and also married the three (3) wives of his brother when the same was not supported by fact.
That the learned magistrate erred in law and in fact by failing to properly analyze the evidence on record thereby arriving at a wrong decision.
That the learned magistrate erred in law and fact when he turned the rules of evidence on their head by requiring the Petitioner to disapprove the Plaintiff evidence on their head by requiring the Petitioner to disapprove the Plaintiff/Objectors case instead of requiring the Objectors to prove their case.
The learned magistrate erred in law and in fact by relying on extraneous factors and or issues not before court and the judgment was based on wrong consideration.
The learned magistrate erred in law and fact when he failed to appreciate that the pleadings in the Appellants replying affidavit remained uncontroverted and ought to have allowed the objection.
The learned magistrate failed to appreciate the submissions of the learned counsel for the Appellant by finding in favour of the Respondent herein.
The learned magistrate proceeded on the wrong principles and disregarded the generally applicable principle of law.
That in all the circumstances of the case, the findings of the learned magistrate are insupportable in law or on the basis of the evidence adduced.
This being the first appellate court, its duty is well spelt out namely to re-evaluate, analyze the evidence tendered before the trial court and subject it to an independent analysis so as to arrive at an independent conclusion as to whether or not to uphold the decision of the trial court. In doing so, the court has to take into consideration the fact that it did not have the benefit to see or hear the witnesses while they testified and that the court will have to provide an allowance for that fact. ( See Selle vs. Associated Motor Boat Company Limited [1968] EA 123).
The Appellant herein had filed summon for confirmation of Grant dated 5/12/2023 seeking to distribute the estate of the deceased among about ten (10) beneficiaries. The Respondents herein filed summons for objection to confirmation of grant dated 20/2/2024 wherein they sought for the revocation of grant on the grounds that the Appellant herein had concealed material facts from the court and did not obtain consent from the beneficiaries towards the making of the grant as well as the summons for confirmation of grant. The Appellant filed a replying affidavit to the said application dated 20/2/2024 in which he vehemently opposed and sought for its dismissal and further averred that he is a biological grandson of the deceased herein.
The objection dated 20/2/2024 was canvassed by way of viva voce evidence. The 1 st objector testified as OBW1 on behalf of the rest of the objectors and relied on the affidavit in support of the objection dated 20/2/2024. He further added that the deceased herein was his grandfather who had a piece of land namely Siaya/Ambira/606 measuring 4.2 HA. That they object the confirmation of grant as the same will interfere with the manner in which they are living on the ground and that the boundaries should not be changed. That the proposed mode of distribution is unfair as some of the houses have not been provided for while others are likely to be dislodged from the land yet there are permanent boundaries. On cross examination, he stated inter alia; that the deceased had his own wife namely Leonora Adundo while he also inherited other women (widows); that the beneficiaries listed in the schedule (1-6) are biological children of the deceased; that Otaya Okong’o is not a biological child of the deceased; that the deceased’s three wives were living in one homestead and that they were buried within the same homestead; that the parcel is not registered in the name of the deceased; that the confirmation was done secretly; that he has not filed an application to be considered as a dependant; that they do not have any home in Sega as they live in Ambira.
The Petitioner(Appellant) testified as RW1 and adopted his replying affidavit dated 14/3/2024 as his evidence in chief wherein he had averred inter alia; that the objection is incompetent and unknown to the Law of Succession and rules thereunder; that the Respondents ought to have filed affidavits of protest against the proposed schedule of distribution of the estate; that he is a biological grandson of the deceased as he is a son to the first born son of the deceased Paul Othune; that he gave a chronology of the deceased’s family tree; that the objectors are direct descendants of the estate of Okong’o and not Thomas Odol; that the said Okong’o had been conscripted into the Kings African Rivals as a soldier and went out of the country to fight for the British but he died in the war and that his remains were not brought to Kenya; that the deceased herein who was then a bachelor and in line with Luo culture took all his brother’s wives together with their children under his roof for purposes of taking care of them as was expected of him; that the deceased Thomas Odol married only one wife Leonora Adundo and they gave birth to their first born son who is the Petitioner herein Paul Oluoch Odol; that the deceased moved from Sega to Ambira and set up his homestead for his wife and also separate homestead for his late brother’s three wives within the same vicinity; that the deceased Thomas Odol and his wife were thereafter blessed with six small children all of whom have passed on leaving only Zacharia Onyango; that he is the biological son of Paul Othune; that the deceased Thomas Odol sired children with two of his brother’s widows who are all deceased; that that it is only his uncle Zacharia Onyango who is surviving; that the 1 st and 2 nd Objectors are not direct beneficiaries of the estate but are beneficiaries of the estate of the deceased’s brother Okong’o; that the deceased was buried in the homestead of his only wife Leonora Adundo; that the objectors are strangers to the estate of the deceased and that they have no legal entitlement thereto; that the only person who ranks in the decree of consanguinity is uncle Zacharia Onyango who has not raised any objection to the proceedings; that the application should be dismissed so that the estate can be distributed to the rightful children of the deceased.
On cross examination, he stated inter alia; that his grandfather was residing in Sega on whose land he cannot recall; that the deceased shifted to Ambira where there were other people; that all the family members reside on the land in dispute and that there are no clear boundaries between the four wives but that the homesteads are clearly marked; that they did not engage the surveyor to determine the acreage; that they are dividing the 4.2HA by the number of beneficiaries; that each family should not get equal portions; that he objects to a survey being carried out; that the deceased had only one wife while the rest are his brother’s wives on the same land.
Richard Okoth Otieno ( RW2) adopted his statement dated 2/5/2024 as his evidence in chief. He stated that the deceased took up the responsibility of taking care of his elder brother’s family even at the time when he was not married. That the deceased sired three children with the 2 nd and 3 rd wives of his deceased brother Okong’o. That the deceased herein later married his wife Leonora Adundo who gave birth to six children. That the Petitioner herein is a biological son to Paul Othune who is the eldest son of the deceased with Leonora Adundo.
On cross examination he stated inter alia; that all the parties reside on the suit land and that they were born and brought up on that parcel of land; that the wives are wives to the deceased Thomas Odol since in addition to marrying his wife Leonora Adundo, he inherited three wives from his brother Okong’o; that each of the beneficiaries have their own portion of land they are occupying on the same land; that no surveyor had visited the land to establish the sizes.
Alphonce Okumu Ong’uolo (RW3) adopted his statement dated 7/5/2024 as his evidence in chief which was a reiteration of the averments of RW2.
On cross examination he stated inter alia; that the deceased-built homesteads for his wife and the wives of his late brother and all of whom lived on the same land; that everyone knows their boundaries; that he cannot tell whether a surveyor was invited to come and establish the size of the land.
The appeal was canvassed by way of written submissions. Both parties filed and exchanged submissions.
The Appellant raised three issues for determination namely:
Whether the trial magistrate had erred in law by failing to strike out summons for objection to confirmation of grant for being defective.
Whether the trial magistrate failed to appreciate the totality of the evidence and whether he arrived at a wrong conclusion.
Which orders should the court grant.
As regards the first issue, the Appellant submitted that the trial court made an error in failing to strike out the Respondent’s application dated 20/2/2024 since there was no procedure provided for by the Law of Succession Act when one has an objection to summons for confirmation of grant. According to the Appellant, the Respondents should have approached the court by filing an affidavit of protest so that the issue of the distribution of the estate can be determined by the trial court. Further, it was contended that the trial court went out of its way to determine matters of revocation of grant when no such request had been made by the Respondents pursuant to Section 76 of the Laws of Succession Act.
As regards the second issue, it was submitted that the trial magistrate got it all wrong when he ruled that the Respondents are dependants of the deceased. Further it was contended that the trial magistrate made an error when he left the issue for distribution of the estate and directed that new administrators be appointed from each house and thereafter to come up for confirmation of grant. It was also submitted that the Appellant herein is the only surviving descendant of the deceased by virtue of being a son to the deceased’s first-born son Paul Othune and therefore he should be allowed to administer the estate of the deceased.
It was finally submitted that the Appellant had already submitted his proposed mode of distribution of the estate of the deceased but which was not responded to by the Respondents and therefore the learned trial magistrate was wrong in failing to make a determination regarding the distribution of the estate. It was therefore urged that the orders dismissing the Respondent’s application dated 20/2/2024 with costs and an order the summons for confirmation of grant dated 5/12/2023.
The Respondents’ submissions are dated 13/3/2025. It was submitted that the application dated 20/2/2024 was proper before the trial court as one of the prayers was for revocation of grant which falls under Section 76 of the Laws of Succession Act. that the trial established that the main issue that had been raised was the circumstances leading to he issuance of the grant and therefore dealt with it and differed the summons for confirmation of grant to another date after the appointment of the Petitioners. It was also submitted that the children of the deceased’s brother Okong’o Othune as well as the children sired by the deceased upon inheriting his brother’s widows are entitled to benefit from the estate. It was also submitted that eh Appellant obtained a grant by means of concealment of material facts from the court and therefore the subsequent grant was properly revoked by the trial court so that new Petitioners could be appointed representing the houses of the three widows inherited by the deceased as well as the deceased legally married wife one Leonora Adundo. It was submitted that since the deceased settled his late brother’s three wives on the same parcel of land as well as his own wife and also sired children with the said widow, then all of them should be treated as beneficiaries of the estate. Learned counsel for the Respondent submitted that the Respondents duly presented to the trial court the true picture of the deceased’s family tree flowing from the deceased’s marriage to the four wives namely Obuong Nyar Adan, Betina Abayo, Regina Nyar Obare and Leonora Adundo as follows:
1 ST HOUSEHOLD
OBUONG NYAR’ ADAN FIRST WIFE (DECEASED)
Had one child known as HENRY OHOR’ who sired ‘ PATER OTIENO OOR’
2 ND HOUSEHOLD
BETINA ABAYO SECOND WIFE (DECEASED)
Had one child known as Othune Okong’o who sired PATRICK OTIENO ODOL
(1 st Applicant/Objector)
3 RD HOUSEHOLD
REGINA NYAR’OBARE THIRD WIFE (DECEASED)
Had one child known as OTAYA OKONG’O who sired ALFRED OTAYA OKONG’O
(2 nd Applicant/Objector)
4 TH HOUSEHOLD
LEONORA ADUNDO FOURTH WIFE (DECEASED)
Had six children as
PAUL OTHUNE (deceased) who sired PAUL OLUOCH OTIENO
(the Respondent/Petitioner)
JACOB OUNA (deceased) who sired MARIKUS OLUOCH OUNA
(The 3 RD Respondent/Petitioner)
HILARIUS OKONG’O (deceased)
JOHN MAYAMB (deceased)
ZACHARIA ONYANGO (alive)
ROBERT OJWANG (deceased)
JOSEPH OKONG’O (deceased)
5. I have considered the record of appeal as well as the submissions filed. It is not in dispute that the deceased herein had inherited the widows of his later brother Okong’o who died while fighting in the Kings African Rivals Battle on behalf of the British Empire and that his remains were never brought back to Kenya for burial. It is also not in dispute that at the time the deceased’s brother died while fighting abroad, he was then a bachelor as he had not married. It is also not in dispute that the deceased at the time used to live in Sega and that he later moved to Ambira area and took along the three widows of his late brother and established a homestead for them. It is not in dispute that the deceased sired children with the 2 nd and 3 rd widows of his late brother. It is also not in dispute that the deceased herein later married his own wife Leonora Adundo with whom he sired six children most of whom have since died and that his first-born son Paul Othune (deceased) is the father of the Appellant herein. It is also not in dispute that the deceased not only maintained the three widows and children of his late brother plus the ones he sired with them as well as his own with his wife Leonora Adundo prior to his demise. It is also not in dispute that the three widows of his late brother were settled on the same land parcel Siaya/Ambira/606 as well as all the children and that the widow, his wife and deceased’s children were all buried on the same parcel of land. It is also not in dispute that the Appellant and the Respondents reside on the same parcel of land where they have settled their homes and they have boundaries. It is also not in dispute that from the introductory letter of the Area Local Administration (Central Ugenya Location) dated 22/11/2022 contains a long list of beneficiaries who lay a stake in the estate of the deceased and in which the Appellant herein has indicated in the petition vide Form P&A 80 while instituting the succession cause wherein he has listed 110 names of beneficiaries. I find the issue for determination is whether the appeal has merit.
It is noted that the Respondents had filed an application dated 20/2/2024 objecting to the summons for confirmation of grant and sought for the revocation of grant issued to the Appellant on the grounds that the Appellant concealed certain material facts from the court while petitioning for grant and further sought for the dismissal of the summons for confirmation of grant dated 5/12/2023 on the ground that the proposed mode of distribution of the estate had not been properly done as no survey had been carried out so as to establish the occupation of the land on the ground by the beneficiaries. The Appellant’s counsel has taken great exception at the direction taken by the trial magistrate in proceedings to determine the issue of revocation of grant and leaving out the issue of distribution of the estate yet the Respondents did not present their proposed mode of distribution of the estate. Indeed, upon the filing of confirmation of grant, the task of the court was to consider rival schedules of the distribution of the estate by the parties and thereafter make a determination regarding the same. In the particular situation, it seems the Respondents were interested in first of all challenging the issue of the grant before coming to the distribution of the estate. It is clear from the proceedings that the learned trial magistrate saw and identified this issue from the perspective and hence he went ahead and established that the Appellant had lodged the Petition for grant without informing the rest of the beneficiaries. Even though the learned counsel for the Appellant has found this not to be sitting well with the Appellant’s point of view, I find that the Respondents having raised the issue that the grant had been issued to the Appellant in a manner not in accordance with the Law of Succession Act, were entitled to get a determination by the trial court regarding that particular prayer. The Respondents also claimed in their application that the Appellant had not engaged the services of a surveyor so as to establish the exact position of the land on the ground by the beneficiaries. Indeed, the succession court’s duty is to distribute the estate of the deceased persons to their beneficiaries. It is form that premise that the learned trial magistrate opted to deal with the issue of grant and let the issue of distribution of the estate through the summons for confirmation of grant to come later. It is also not in dispute that the estate of the deceased comprises of only one parcel of land namely Siaya/Ambira/606 wherein the whole family reside. The list presented by the Appellant as well by the Area Chief shows that the family is a large one since the list provided by the chief is 110 family members. Hence, in order to address the issue affecting such large number the trial court had to address the issue of the grant. It is therefore erroneous on the part of the Appellant’s counsel to claim that her prayer for revocation of grant had not been raised by the Respondents. Even though the Appellant’s counsel has taken issue with the Respondents’ manner of approaching the court via a summons for revocation of grant in answer to a summons for confirmation of grant, I find that the same is an issue of technicality which can be excused by dint of the provisions of Article 159 (2) (d) of the Constitution which dictates that the courts should not be armstrung by technicalities but should be guided by the need to do substantive justice by ensuring that matters are determined on merit. From the long family tree presented by both the Appellant and the Respondents, the dispute involves one family and therefore the need to ensure that everyone is given their day in court. To that extent, I find that the trial court was right to make a determination regarding the issue of revocation of grant in accordance with the provisions of Section 76 of Law of Succession Act.
Revocation of grant is provided for under Section 78 of the Law of Succession Act Cap 161 Laws of Kenya.
Revocation or annulment of grant.
A grant of representation, whether or not confirmed, may at any time be revoked or annulled if the court decides either on application by any interested a party or of its own motion –
That the proceedings to obtain the grant were defective in substance;
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;
That the grant was essential in point of law to justify the grant notwithstanding that the allegation was made in ignorance or inadvertently;
76. That the person to whom the grant was made has failed, after due notice and without reasonable cause either –
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
To proceed diligently with the administration of the estate; or to produce to the court, within the time prescribed, any
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
That the grant has become useless and inoperative through subsequent circumstances.
The trial court was therefore entitled to make such orders as are expedient in the interest of justice pursuant to Rule 73 of the Probate and Administration Rules. Indeed, the duty of the court is to distribute the free property of the deceased person to the rightful beneficiaries. According to the list of beneficiaries, the Appellant presented while lodging the petition of Grant, it is only a few of the beneficiaries who signed it. According to the letter by the Area Chief the beneficiaries numbered about 110. The Respondents therefore were entitled to challenge the issuance of the grant to the Appellant. The learned trial magistrate therefore rightly found that the grant issued to the Appellant ought to be revoked and that more Petitioners were required to be appointed.
The Appellant has strongly objected to the inclusion of the Respondents as administrators in the estate on the ground that they are not grand children of the deceased. During the testimony presented by the witnesses, it came clearly that the deceased sired children with two of the widows of his late brother after he inherited them. Those children sired by the deceased were therefore entitled in equal measure just like Appellant herein to be declared as beneficiaries. The Appellant himself in his testimony admitted on cross examination that the 3 rd Respondent Marikus Oluoch Ouna was one of the sons of the deceased sired by one of the widows to the deceased’s late brother Okong’o. That being the position, the said Marikus Oluoch Ouna ranks in priority just like Paul Othune who was the father of the Appellant. The only difference is that they were born by different mothers. The Appellant admitted that the 3 rd Respondent herein is the only surviving son of the deceased and in fact he referred to him as his uncle. This then implies that the Appellant is not the only one who ought to take up letters of grant. It is illogical for the Appellant to claim that he is the only one who is entitled to be issued with letters of grant on the basis that he is a son to Paul Othune who was the 1 st born son of the deceased with Leonora Adundo yet the deceased also sired other children with the deceased’s brother’s widows one of whom is the 3 rd Respondent. I find that the 3 rd Respondent ranks equally in priority with the Appellant. Both the Appellant and the Respondents in their testimonies before the lower court confirmed that the deceased herein had inherited the three widows of the deceased’s late brother Okong’o and moved with them from Sega to Ambira area where they all settled on the parcel No. Siaya/Ambira/606 and that he sired children with those widows. That the deceased together with those widows and other children were later buried on the said land and further that the children from the three widows as well as the deceased wife Leonora Adundo have resided on the land in question. From the list presented by the chief, the more than 100 members of the family almost comprise the size of a village. From the moment the deceased inherited those three widows and sired children and went ahead to take them in as his own family, they all became his dependants for all intents and purposes children of the deceased and are entitled as beneficiaries. Even though the learned trail magistrate grouped those children as representing the houses of those widows, I find that no prejudice was suffered by the Appellant since those children are his uncles and step-brothers to his father and that all of them actually reside on the same parcel of land. I find that it is appropriate that they be made as administrators of the estate. To that extent, the finding by the trial magistrate was proper.
In view of the foregoing observation, it is my finding that the Appellant’s appeal lacks merit. The same is dismissed. As parties are family members, I order each party to bear their own costs.
Dated and delivered at Siaya this 31 st day of July 2025.
D. KEMEI
JUDGE
In the presence of:
N/A Ooro E………………….for Appellant
Ochanyo ……………………for Respondents
Maureen/Kimaiyo………..Court Assistant
JUDGMENT
The Appellant herein filed the present appeal arising from the judgment of Honourable Jacob Punga Mkala delivered on 12/7/2024 in Siaya CM SUCC No. 444 of 2022 wherein he allowed the Objectors’ application dated 20/2/2024 and revoked the grant that had been issued to the petitioner and further ordered that a new gnat be issued to the Petitioner and two of the Objectors and a third one and who were ordered to file fresh summons for confirmation of grant upon issuance of the new grant.
Being aggrieved by the said decision the Appellant filed Appellant filed his Memorandum of Appeal dated 30/7/2024 wherein he raised the following grounds of appeal:
That the learned Magistrate erred in law and in fact by failing to trike out the summons for Objection to confirmation of grant which was patently and manifestily defective.
That the learned magistrate erred in law and in fact by failing to uphold that parties are bound by their pleadings.
That the learned magistrate occasioned a miscarriage of justice by descending into the arena of litigation.
That the learned magistrate misapplied the provisions of Article 159 (2) of the Constitution.
That the learned magistrate erred in law and in fact by treating the Appellant evidence and the Appellant submissions superficially and without adequate weight and thereby grossly misdirected himself and arrived at an erroneous decision.
That the learned magistrate erred in law and in fact by finding that Thomas Odol had inherited and also married the three (3) wives of his brother when the same was not supported by fact.
That the learned magistrate erred in law and in fact by failing to properly analyze the evidence on record thereby arriving at a wrong decision.
That the learned magistrate erred in law and fact when he turned the rules of evidence on their head by requiring the Petitioner to disapprove the Plaintiff evidence on their head by requiring the Petitioner to disapprove the Plaintiff/Objectors case instead of requiring the Objectors to prove their case.
The learned magistrate erred in law and in fact by relying on extraneous factors and or issues not before court and the judgment was based on wrong consideration.
The learned magistrate erred in law and fact when he failed to appreciate that the pleadings in the Appellants replying affidavit remained uncontroverted and ought to have allowed the objection.
The learned magistrate failed to appreciate the submissions of the learned counsel for the Appellant by finding in favour of the Respondent herein.
The learned magistrate proceeded on the wrong principles and disregarded the generally applicable principle of law.
That in all the circumstances of the case, the findings of the learned magistrate are insupportable in law or on the basis of the evidence adduced.
This being the first appellate court, its duty is well spelt out namely to re-evaluate, analyze the evidence tendered before the trial court and subject it to an independent analysis so as to arrive at an independent conclusion as to whether or not to uphold the decision of the trial court. In doing so, the court has to take into consideration the fact that it did not have the benefit to see or hear the witnesses while they testified and that the court will have to provide an allowance for that fact. ( See Selle vs. Associated Motor Boat Company Limited [1968] EA 123).
The Appellant herein had filed summon for confirmation of Grant dated 5/12/2023 seeking to distribute the estate of the deceased among about ten (10) beneficiaries. The Respondents herein filed summons for objection to confirmation of grant dated 20/2/2024 wherein they sought for the revocation of grant on the grounds that the Appellant herein had concealed material facts from the court and did not obtain consent from the beneficiaries towards the making of the grant as well as the summons for confirmation of grant. The Appellant filed a replying affidavit to the said application dated 20/2/2024 in which he vehemently opposed and sought for its dismissal and further averred that he is a biological grandson of the deceased herein.
The objection dated 20/2/2024 was canvassed by way of viva voce evidence. The 1 st objector testified as OBW1 on behalf of the rest of the objectors and relied on the affidavit in support of the objection dated 20/2/2024. He further added that the deceased herein was his grandfather who had a piece of land namely Siaya/Ambira/606 measuring 4.2 HA. That they object the confirmation of grant as the same will interfere with the manner in which they are living on the ground and that the boundaries should not be changed. That the proposed mode of distribution is unfair as some of the houses have not been provided for while others are likely to be dislodged from the land yet there are permanent boundaries. On cross examination, he stated inter alia; that the deceased had his own wife namely Leonora Adundo while he also inherited other women (widows); that the beneficiaries listed in the schedule (1-6) are biological children of the deceased; that Otaya Okong’o is not a biological child of the deceased; that the deceased’s three wives were living in one homestead and that they were buried within the same homestead; that the parcel is not registered in the name of the deceased; that the confirmation was done secretly; that he has not filed an application to be considered as a dependant; that they do not have any home in Sega as they live in Ambira.
The Petitioner(Appellant) testified as RW1 and adopted his replying affidavit dated 14/3/2024 as his evidence in chief wherein he had averred inter alia; that the objection is incompetent and unknown to the Law of Succession and rules thereunder; that the Respondents ought to have filed affidavits of protest against the proposed schedule of distribution of the estate; that he is a biological grandson of the deceased as he is a son to the first born son of the deceased Paul Othune; that he gave a chronology of the deceased’s family tree; that the objectors are direct descendants of the estate of Okong’o and not Thomas Odol; that the said Okong’o had been conscripted into the Kings African Rivals as a soldier and went out of the country to fight for the British but he died in the war and that his remains were not brought to Kenya; that the deceased herein who was then a bachelor and in line with Luo culture took all his brother’s wives together with their children under his roof for purposes of taking care of them as was expected of him; that the deceased Thomas Odol married only one wife Leonora Adundo and they gave birth to their first born son who is the Petitioner herein Paul Oluoch Odol; that the deceased moved from Sega to Ambira and set up his homestead for his wife and also separate homestead for his late brother’s three wives within the same vicinity; that the deceased Thomas Odol and his wife were thereafter blessed with six small children all of whom have passed on leaving only Zacharia Onyango; that he is the biological son of Paul Othune; that the deceased Thomas Odol sired children with two of his brother’s widows who are all deceased; that that it is only his uncle Zacharia Onyango who is surviving; that the 1 st and 2 nd Objectors are not direct beneficiaries of the estate but are beneficiaries of the estate of the deceased’s brother Okong’o; that the deceased was buried in the homestead of his only wife Leonora Adundo; that the objectors are strangers to the estate of the deceased and that they have no legal entitlement thereto; that the only person who ranks in the decree of consanguinity is uncle Zacharia Onyango who has not raised any objection to the proceedings; that the application should be dismissed so that the estate can be distributed to the rightful children of the deceased.
On cross examination, he stated inter alia; that his grandfather was residing in Sega on whose land he cannot recall; that the deceased shifted to Ambira where there were other people; that all the family members reside on the land in dispute and that there are no clear boundaries between the four wives but that the homesteads are clearly marked; that they did not engage the surveyor to determine the acreage; that they are dividing the 4.2HA by the number of beneficiaries; that each family should not get equal portions; that he objects to a survey being carried out; that the deceased had only one wife while the rest are his brother’s wives on the same land.
Richard Okoth Otieno ( RW2) adopted his statement dated 2/5/2024 as his evidence in chief. He stated that the deceased took up the responsibility of taking care of his elder brother’s family even at the time when he was not married. That the deceased sired three children with the 2 nd and 3 rd wives of his deceased brother Okong’o. That the deceased herein later married his wife Leonora Adundo who gave birth to six children. That the Petitioner herein is a biological son to Paul Othune who is the eldest son of the deceased with Leonora Adundo.
On cross examination he stated inter alia; that all the parties reside on the suit land and that they were born and brought up on that parcel of land; that the wives are wives to the deceased Thomas Odol since in addition to marrying his wife Leonora Adundo, he inherited three wives from his brother Okong’o; that each of the beneficiaries have their own portion of land they are occupying on the same land; that no surveyor had visited the land to establish the sizes.
Alphonce Okumu Ong’uolo (RW3) adopted his statement dated 7/5/2024 as his evidence in chief which was a reiteration of the averments of RW2.
On cross examination he stated inter alia; that the deceased-built homesteads for his wife and the wives of his late brother and all of whom lived on the same land; that everyone knows their boundaries; that he cannot tell whether a surveyor was invited to come and establish the size of the land.
The appeal was canvassed by way of written submissions. Both parties filed and exchanged submissions.
The Appellant raised three issues for determination namely:
Whether the trial magistrate had erred in law by failing to strike out summons for objection to confirmation of grant for being defective.
Whether the trial magistrate failed to appreciate the totality of the evidence and whether he arrived at a wrong conclusion.
Which orders should the court grant.
As regards the first issue, the Appellant submitted that the trial court made an error in failing to strike out the Respondent’s application dated 20/2/2024 since there was no procedure provided for by the Law of Succession Act when one has an objection to summons for confirmation of grant. According to the Appellant, the Respondents should have approached the court by filing an affidavit of protest so that the issue of the distribution of the estate can be determined by the trial court. Further, it was contended that the trial court went out of its way to determine matters of revocation of grant when no such request had been made by the Respondents pursuant to Section 76 of the Laws of Succession Act.
As regards the second issue, it was submitted that the trial magistrate got it all wrong when he ruled that the Respondents are dependants of the deceased. Further it was contended that the trial magistrate made an error when he left the issue for distribution of the estate and directed that new administrators be appointed from each house and thereafter to come up for confirmation of grant. It was also submitted that the Appellant herein is the only surviving descendant of the deceased by virtue of being a son to the deceased’s first-born son Paul Othune and therefore he should be allowed to administer the estate of the deceased.
It was finally submitted that the Appellant had already submitted his proposed mode of distribution of the estate of the deceased but which was not responded to by the Respondents and therefore the learned trial magistrate was wrong in failing to make a determination regarding the distribution of the estate. It was therefore urged that the orders dismissing the Respondent’s application dated 20/2/2024 with costs and an order the summons for confirmation of grant dated 5/12/2023.
The Respondents’ submissions are dated 13/3/2025. It was submitted that the application dated 20/2/2024 was proper before the trial court as one of the prayers was for revocation of grant which falls under Section 76 of the Laws of Succession Act. that the trial established that the main issue that had been raised was the circumstances leading to he issuance of the grant and therefore dealt with it and differed the summons for confirmation of grant to another date after the appointment of the Petitioners. It was also submitted that the children of the deceased’s brother Okong’o Othune as well as the children sired by the deceased upon inheriting his brother’s widows are entitled to benefit from the estate. It was also submitted that eh Appellant obtained a grant by means of concealment of material facts from the court and therefore the subsequent grant was properly revoked by the trial court so that new Petitioners could be appointed representing the houses of the three widows inherited by the deceased as well as the deceased legally married wife one Leonora Adundo. It was submitted that since the deceased settled his late brother’s three wives on the same parcel of land as well as his own wife and also sired children with the said widow, then all of them should be treated as beneficiaries of the estate. Learned counsel for the Respondent submitted that the Respondents duly presented to the trial court the true picture of the deceased’s family tree flowing from the deceased’s marriage to the four wives namely Obuong Nyar Adan, Betina Abayo, Regina Nyar Obare and Leonora Adundo as follows:
1 ST HOUSEHOLD
OBUONG NYAR’ ADAN FIRST WIFE (DECEASED)
Had one child known as HENRY OHOR’ who sired ‘ PATER OTIENO OOR’
2 ND HOUSEHOLD
BETINA ABAYO SECOND WIFE (DECEASED)
Had one child known as Othune Okong’o who sired PATRICK OTIENO ODOL
(1 st Applicant/Objector)
3 RD HOUSEHOLD
REGINA NYAR’OBARE THIRD WIFE (DECEASED)
Had one child known as OTAYA OKONG’O who sired ALFRED OTAYA OKONG’O
(2 nd Applicant/Objector)
4 TH HOUSEHOLD
LEONORA ADUNDO FOURTH WIFE (DECEASED)
Had six children as
PAUL OTHUNE (deceased) who sired PAUL OLUOCH OTIENO
(the Respondent/Petitioner)
JACOB OUNA (deceased) who sired MARIKUS OLUOCH OUNA
(The 3 RD Respondent/Petitioner)
HILARIUS OKONG’O (deceased)
JOHN MAYAMB (deceased)
ZACHARIA ONYANGO (alive)
ROBERT OJWANG (deceased)
JOSEPH OKONG’O (deceased)
5. I have considered the record of appeal as well as the submissions filed. It is not in dispute that the deceased herein had inherited the widows of his later brother Okong’o who died while fighting in the Kings African Rivals Battle on behalf of the British Empire and that his remains were never brought back to Kenya for burial. It is also not in dispute that at the time the deceased’s brother died while fighting abroad, he was then a bachelor as he had not married. It is also not in dispute that the deceased at the time used to live in Sega and that he later moved to Ambira area and took along the three widows of his late brother and established a homestead for them. It is not in dispute that the deceased sired children with the 2 nd and 3 rd widows of his late brother. It is also not in dispute that the deceased herein later married his own wife Leonora Adundo with whom he sired six children most of whom have since died and that his first-born son Paul Othune (deceased) is the father of the Appellant herein. It is also not in dispute that the deceased not only maintained the three widows and children of his late brother plus the ones he sired with them as well as his own with his wife Leonora Adundo prior to his demise. It is also not in dispute that the three widows of his late brother were settled on the same land parcel Siaya/Ambira/606 as well as all the children and that the widow, his wife and deceased’s children were all buried on the same parcel of land. It is also not in dispute that the Appellant and the Respondents reside on the same parcel of land where they have settled their homes and they have boundaries. It is also not in dispute that from the introductory letter of the Area Local Administration (Central Ugenya Location) dated 22/11/2022 contains a long list of beneficiaries who lay a stake in the estate of the deceased and in which the Appellant herein has indicated in the petition vide Form P&A 80 while instituting the succession cause wherein he has listed 110 names of beneficiaries. I find the issue for determination is whether the appeal has merit.
It is noted that the Respondents had filed an application dated 20/2/2024 objecting to the summons for confirmation of grant and sought for the revocation of grant issued to the Appellant on the grounds that the Appellant concealed certain material facts from the court while petitioning for grant and further sought for the dismissal of the summons for confirmation of grant dated 5/12/2023 on the ground that the proposed mode of distribution of the estate had not been properly done as no survey had been carried out so as to establish the occupation of the land on the ground by the beneficiaries. The Appellant’s counsel has taken great exception at the direction taken by the trial magistrate in proceedings to determine the issue of revocation of grant and leaving out the issue of distribution of the estate yet the Respondents did not present their proposed mode of distribution of the estate. Indeed, upon the filing of confirmation of grant, the task of the court was to consider rival schedules of the distribution of the estate by the parties and thereafter make a determination regarding the same. In the particular situation, it seems the Respondents were interested in first of all challenging the issue of the grant before coming to the distribution of the estate. It is clear from the proceedings that the learned trial magistrate saw and identified this issue from the perspective and hence he went ahead and established that the Appellant had lodged the Petition for grant without informing the rest of the beneficiaries. Even though the learned counsel for the Appellant has found this not to be sitting well with the Appellant’s point of view, I find that the Respondents having raised the issue that the grant had been issued to the Appellant in a manner not in accordance with the Law of Succession Act, were entitled to get a determination by the trial court regarding that particular prayer. The Respondents also claimed in their application that the Appellant had not engaged the services of a surveyor so as to establish the exact position of the land on the ground by the beneficiaries. Indeed, the succession court’s duty is to distribute the estate of the deceased persons to their beneficiaries. It is form that premise that the learned trial magistrate opted to deal with the issue of grant and let the issue of distribution of the estate through the summons for confirmation of grant to come later. It is also not in dispute that the estate of the deceased comprises of only one parcel of land namely Siaya/Ambira/606 wherein the whole family reside. The list presented by the Appellant as well by the Area Chief shows that the family is a large one since the list provided by the chief is 110 family members. Hence, in order to address the issue affecting such large number the trial court had to address the issue of the grant. It is therefore erroneous on the part of the Appellant’s counsel to claim that her prayer for revocation of grant had not been raised by the Respondents. Even though the Appellant’s counsel has taken issue with the Respondents’ manner of approaching the court via a summons for revocation of grant in answer to a summons for confirmation of grant, I find that the same is an issue of technicality which can be excused by dint of the provisions of Article 159 (2) (d) of the Constitution which dictates that the courts should not be armstrung by technicalities but should be guided by the need to do substantive justice by ensuring that matters are determined on merit. From the long family tree presented by both the Appellant and the Respondents, the dispute involves one family and therefore the need to ensure that everyone is given their day in court. To that extent, I find that the trial court was right to make a determination regarding the issue of revocation of grant in accordance with the provisions of Section 76 of Law of Succession Act.
Revocation of grant is provided for under Section 78 of the Law of Succession Act Cap 161 Laws of Kenya.
Revocation or annulment of grant.
A grant of representation, whether or not confirmed, may at any time be revoked or annulled if the court decides either on application by any interested a party or of its own motion –
That the proceedings to obtain the grant were defective in substance;
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;
That the grant was essential in point of law to justify the grant notwithstanding that the allegation was made in ignorance or inadvertently;
76. That the person to whom the grant was made has failed, after due notice and without reasonable cause either –
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
To proceed diligently with the administration of the estate; or to produce to the court, within the time prescribed, any
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
That the grant has become useless and inoperative through subsequent circumstances.
The trial court was therefore entitled to make such orders as are expedient in the interest of justice pursuant to Rule 73 of the Probate and Administration Rules. Indeed, the duty of the court is to distribute the free property of the deceased person to the rightful beneficiaries. According to the list of beneficiaries, the Appellant presented while lodging the petition of Grant, it is only a few of the beneficiaries who signed it. According to the letter by the Area Chief the beneficiaries numbered about 110. The Respondents therefore were entitled to challenge the issuance of the grant to the Appellant. The learned trial magistrate therefore rightly found that the grant issued to the Appellant ought to be revoked and that more Petitioners were required to be appointed.
The Appellant has strongly objected to the inclusion of the Respondents as administrators in the estate on the ground that they are not grand children of the deceased. During the testimony presented by the witnesses, it came clearly that the deceased sired children with two of the widows of his late brother after he inherited them. Those children sired by the deceased were therefore entitled in equal measure just like Appellant herein to be declared as beneficiaries. The Appellant himself in his testimony admitted on cross examination that the 3 rd Respondent Marikus Oluoch Ouna was one of the sons of the deceased sired by one of the widows to the deceased’s late brother Okong’o. That being the position, the said Marikus Oluoch Ouna ranks in priority just like Paul Othune who was the father of the Appellant. The only difference is that they were born by different mothers. The Appellant admitted that the 3 rd Respondent herein is the only surviving son of the deceased and in fact he referred to him as his uncle. This then implies that the Appellant is not the only one who ought to take up letters of grant. It is illogical for the Appellant to claim that he is the only one who is entitled to be issued with letters of grant on the basis that he is a son to Paul Othune who was the 1 st born son of the deceased with Leonora Adundo yet the deceased also sired other children with the deceased’s brother’s widows one of whom is the 3 rd Respondent. I find that the 3 rd Respondent ranks equally in priority with the Appellant. Both the Appellant and the Respondents in their testimonies before the lower court confirmed that the deceased herein had inherited the three widows of the deceased’s late brother Okong’o and moved with them from Sega to Ambira area where they all settled on the parcel No. Siaya/Ambira/606 and that he sired children with those widows. That the deceased together with those widows and other children were later buried on the said land and further that the children from the three widows as well as the deceased wife Leonora Adundo have resided on the land in question. From the list presented by the chief, the more than 100 members of the family almost comprise the size of a village. From the moment the deceased inherited those three widows and sired children and went ahead to take them in as his own family, they all became his dependants for all intents and purposes children of the deceased and are entitled as beneficiaries. Even though the learned trail magistrate grouped those children as representing the houses of those widows, I find that no prejudice was suffered by the Appellant since those children are his uncles and step-brothers to his father and that all of them actually reside on the same parcel of land. I find that it is appropriate that they be made as administrators of the estate. To that extent, the finding by the trial magistrate was proper.
In view of the foregoing observation, it is my finding that the Appellant’s appeal lacks merit. The same is dismissed. As parties are family members, I order each party to bear their own costs.
Dated and delivered at Siaya this 31 st day of July 2025.
D. KEMEI
JUDGE
In the presence of:
N/A Ooro E………………….for Appellant
Ochanyo ……………………for Respondents
Maureen/Kimaiyo………..Court Assistant