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High CourtDismissedSuccession Cause (Kisumu) – objection to grant dated 5th October 2018· [2019] KEHC 8525 (KLR)

In re Estate of Nanga Okungu (Deceased)

High Court of Kenya
7 March 2019
TCT. W. Cherere
1,389 words in judgment
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·~6 min to read original · ~4 min brief

The bottom line

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Grandchildren can inherit directly from their grandparents if their parents are deceased, provided the grant of administration was not obtained fraudulently.

What this practically means

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Executive summary

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Nanga Okungu died leaving three parcels in Kisumu/Wang'aya. Letters of administration were issued to the petitioner on 21st November 2016 and confirmed on 8th November 2017, upon which he obtained title to Kisumu/Wang'aya 1/965 and moved to evict the 4th objector. The four objectors, sons of the deceased's brothers Obudho Okungu and Kibuye Okungu, applied on 5th October 2018 for revocation of the grant, alleging concealment of beneficiaries, a false chief's letter and a fraudulent death certificate. The dispute proceeded by viva voce evidence. The court framed two issues: whether the letters of administration should be revoked, and who is entitled to inherit. Applying Section 76 of the Succession Act and the Court of Appeal's decision in Musa Nyaribari Gekone, the court found the chief's evidence corroborated that the petitioner was the deceased's grandson and thus ranked in priority to the objectors; the grant was not fraudulently obtained and revocation was refused. On entitlement, applying Sections 39(e) and 66(b), the court held the grandson had the nearest degree of consanguinity and that all three parcels rightfully devolved upon him, fortified by Musyoka J's holding in Estate of Veronica Njoki Wakagoto that grandchildren step into the shoes of their deceased parents. The objection was disallowed with each party bearing its own costs.

Key legal issues

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01

Whether the grant should be revoked under Section 76 of the Succession Act

Holding

Revocation refused; no fraud or concealment established

Reasoning

The chief's evidence (DW2) corroborated that the petitioner was the deceased's grandson, being son of John Odhiambo Nanga, son of the deceased. The court found the petitioner ranked in priority to the objectors, whose fathers were the deceased's brothers, and that the grant was not fraudulently obtained.

p. 2
02

Who is entitled to inherit the deceased's estate

Holding

The petitioner, as grandson with the nearest degree of consanguinity under Sections 39(e) and 66(b), is entitled to the three parcels

Reasoning

The deceased left no surviving spouse or children. Under Section 39, the estate devolves on kindred in order of priority, including relatives of the nearest degree of consanguinity up to the sixth degree. The grandson, representing his deceased father, has the nearest degree of consanguinity compared to nephews.

p. 3

Legal principles established

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  • An interested party for purposes of revocation of a grant includes any person with a right or expectancy in the estate
  • Grandchildren inherit directly from grandparents only where their own parents (children of the deceased) are dead, stepping into their shoes

Court orders

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  1. 1.The objection has no merit and it is disallowed
  2. 2.Each party shall bear its own costs

Authorities

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Legislation

  • Succession Act, Cap 160Section 76
  • Succession Act, Cap 160Section 39
  • Succession Act, Cap 160Section 66(b)
  • Succession Act, Cap 160Section 83

Cases cited (3)

  • Musa Nyaribari Gekone & 2 Others v Peter Miyienda & Another
    [2015] eKLR

    Meaning of 'any interested party' under Section 76 – wide enough to accommodate any person with a right or expectancy in the estate

  • In re Estate of John Gakunga Njoroge (Deceased)
    [2015] eKLR

    Support for the finding that the grant was not fraudulently obtained

  • Estate of Veronica Njoki Wakagoto (deceased)
    (2013) eKLR

    Grandchildren inherit directly from grandparents only when their own parents are dead, stepping into their shoes

Jurisdiction invoked
Succession Act, Cap 160 – Section 76 (revocation of grants) and Section 39 (intestate devolution)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "In re Estate of Nanga Okungu (Deceased)", Case Analysis (2019). Succession Cause (Kisumu) – objection to grant dated 5th October 2018. Source:

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.