Barack Onyango Abuor v Joseph Wayodi Jure

ii) That the trial magistrate erred in fact and law by failing to appreciate that the Appellant together with his family were dependants of the deceased. iv) That the trial magistrate erred in fact and law by failing to appreciate in totality the evidence tendered with regard to the legitimate and direct beneficiaries in the estate of the deceased. v) That the trial magistrate erred in fact and law by relying only on the letter of the chief dated 31/8/2023. He thus prayed that the appeal be allowed and that the ruling be set aside and the summons for revocation of grant be allowed with costs as well as the costs of the appeal. 3. Being a first appeal, i have a duty to appreciate the entire evidence by subjecting it to a fresh exhaustive scrutiny and arrive at my own independent conclusion. I also must take into account the fact that i did not have the opportunity to hear or see the witnesses and must therefore give an allowance for that. (See Selle & Another vs Associated Motor Boat Company Ltd & others [1968] 1EA 123; Peters v. Sunday Post Ltd (1958) EA 424; Mary Wanjiku Gachigi v Ruth Muthoni Kamau (Civil Appeal No. 172 of 2000. (Tunoi, Bosire & Owuor JJA); Anne Wambui Ndiritu v Joseph Kiprono Ropkoi & Another Civil Appeal No. 345 of 2000.(Okubasi, Githinji & Waki JJA] 4. It was the Appellants case vide his summons for revocation of grant dated 17/3/2023 that the Respondent obtained the grant issued on 9/1/2023 without disclosing that there are other beneficiaries to the estate of the deceased and therefore, the lawful beneficiaries were deprived of their rightful share of the estate. It was further the Appellant’s case that the Respondent had concealed vital information and material facts from the court. It was finally the Appellant’s case that he was the only surviving beneficiary in the degree of consanguinity. The Appellant therefore urged the trial court to revoke the grant as well as the certificate of confirmation of grant. 5. The application was strenuously opposed by the Respondent vide a replying affidavit sworn on 29/5/2023 wherein he averred inter alia; that he is a nephew of the deceased since his father Johanes Jure Sino was a brother to the deceased; that the deceased had inherited the mother of the Appellant but that they had no children together; that the Appellant’s grandmother Margaret Milo holds two parcels of land namely South Gem/Wagai/44 and 700 in trust for him and that he should move into them; that the deceased died intestate and they legally and procedurally conducted succession on his step father’s land and denied having obtained the grant fraudulently by making false statements and or by concealment of material facts from the court; that the Appellant fraudulently obtained a chief’s letter to file a rival Succession Cause No. 324 of 2022 which was later disowned by the area chief and hence he was a fraudulent person; that the application should be dismissed with costs. 6. The Application was canvassed by way of written submissions and afterwards the trial court dismissed the said application which precipitated the instant appeal. 7. The appeal was canvassed by way of written submissions. Both parties duly complied. 8. The Appellant submitted that he was entitled to inherit from the deceased estate by virtue of 3(2), 3 and 5 of the Law of Succession Act. 9. On the other hand, the Respondent submitted that the Appellant was not entitled to inherit from the estate because they had no blood relation with the deceased. 10. I have considered the record of appeal, the submissions before the trial court and those before this appellate court and find the issue for determination is whether the Appellant’s summons for revocation of grant dated 8/3/2023 had merit. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/13264/eng@2025-09-26 2

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11. As the gist of the matter in the trial court revolved around revocation of grant, it is imperative to delve into the salient provisions of section 76 of the Law of Succession Act which deal with the same. The same provides as follows; “ A grant of representation, whether or not confirmed, may at any time be revoked or annulled if the court decided, either on application by any interested party or of its own motiona) 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 of an untrue allegation of 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- e) 12. i) to apply for confirmation of the grant within one years 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 that the grant has become useless and inoperative through subsequent circumstances.’’ From the rival affidavits, it is not in dispute that the deceased had inherited the Appellant’s mother and lived together as husband and wife but did not have children with her and that the Appellant’s mother had her own children with her former husband one Mr. Abuor. However, it transpired that the deceased had another wife who deserted the marriage due to the deceased’s alcoholism and also due to the fact that the deceased spent a lot of time at a chang’aa den then ran by the Appellant’s mother. It is also not in dispute that when the disagreement arose the family of the deceased held a meeting wherein it was discovered that the Appellant and his siblings had indicated Abuor as their father and which left no doubt that they were not biological children of the deceased. The trial court in its attempt to get to the bottom of the matter called for the assistance of the Area Chief to shade light as to who between the Appellant and the Respondent were the legitimate beneficiaries of the estate of the deceased. The Area Chief went ahead and called for a meeting and deliberated on the dispute and thereafter forwarded a letter dated 31/10/2023 which contained the minutes of the findings. The chief’s resolution was that the Appellant and his siblings were not biological children of the deceased and that they had their own father’s (Abuor) land parcels South Gem/Wagai/44 and 700 which were being held in trust by the Appellant’s paternal grandmother Margaret Milo. It was also the finding of the chief that the Appellant had fraudulently obtained an introductory letter and used it to file Succession Cause 324 of 2022 seeking to inherit the property of the deceased herein comprised of LR No. South Gem/Wagai/241 and that the chief went ahead to confirm that the Appellant and his https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/13264/eng@2025-09-26 3

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siblings were children of the brother of the deceased and therefore the legitimate beneficiaries. The trial court went ahead to dismiss the Appellant’s summons for revocation of grant dated 17/3/2023. 13. Reverting back to the minutes of the chief’s meeting held on 16th August 2023 at Komuok Chiefs camp, it is noted that it was the opinion of the majority that the Appellant and his siblings have vast lands held in trust by their biologically paternal grandmother, and further that their intention is to get the deceased’s land and sell it having already brought several prospective buyers to the land. It also transpired that it was the Respondent who had been in possession of the deceased’s land parcel South Gem/Wagai/241 for about 23 years and that the Appellant had not been anywhere near the land. It would seem therefore that the Appellant just wanted to get the land and sell it and then fall back on their family land parcels South Gem/Wagai/44 and 700. The Appellant, during that meeting presided by the chief, did not manage to convince those in attendance that he was a child of the deceased or that the deceased maintained him prior to his death. Again, the Appellant’s conduct in surreptitiously obtaining a purported letter from the Area Chief and proceeding to file Succession Cause 324/2022 at Siaya without the knowledge of the Respondent and his family left no doubt that he was acting in bad faith and that is why the majority of those who were present in the chief’s meeting aforesaid did not believe his claim to the estate. 14. As the dispute is to do with who between the Appellant and the Respondent is a child of the deceased, there is need to fall back on the provisions of Section 3(2) of the Law of Succession Act which provides that: References in this Act to "child “or "children" shall include a child conceived but not yet born (as long as that child is subsequently born alive) and, in relation to a female person, any child born to her out of wedlock, and, in relation to a male person, any child whom he has expressly recognized or in fact accepted as a child of his own or for whom he has voluntarily assumed permanent responsibility. Whereas the Appellant attempted to claim that he is a child of the deceased, he failed to explain as to why his identity card had the name Abuor as his father. Nothing prevented him from having the name of the deceased as his father if at all he had sired him. It is therefore clear that the Appellant is not a biological child of the deceased. The only nexus that the Appellant can have regarding the estate is for him to claim and present evidence that the deceased had taken him as his child and maintained him. The Appellant in his affidavit and his statement before the chief’s meeting stated that when the deceased passed on, he together with his family came for the burial. What is curious about that assertion is that the Appellant and his family were not living/residing on parcel 241 where the deceased was buried. This then disabuses the Appellant’s claim that he was staying at the deceased’s home all this time until he died. there is therefore a high likelihood that the Appellant and his siblings were staying at their late father’s home on parcels 44 and 700. 15. As regards the question as to who is the right person to take out letters of grant, regard must be resorted to the provisions of Section 66 of the Law of Succession Act states that: When a deceased has died intestate, the court shall, save as otherwise expressly provided, have a final discretion as to the person or persons to whom a grant of letters of administration shall, in the best interests of all concerned, be made, but shall, without prejudice to that discretion, accept as a general guide the following order of preference— (a) surviving spouse or spouses, with or without association of other beneficiaries; (b) other beneficiaries entitled on intestacy, with priority according to their respective beneficial interests as provided by Part V; https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/13264/eng@2025-09-26 4

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(c) the Public Trustee; and (d) creditors: Provided that, where there is partial intestacy, letters of administration in respect of the intestate estate shall be granted to any executor or executors who prove the will. From the rival claims, it seems that both the Appellant and the Respondent filed separate Succession Causes. However, the Area Chief upon being directed by the trial court to present the genuine beneficiaries, it transpired that the Appellant had used a forged and/or suspicious chief’s letter and filed Succession Cause 324 of 2022 whereas the Respondent had used a genuine letter from the chief and lodged Succession Cause 304/2022. Indeed, the chief vouched for the Respondent’s claim while dismissing that of the Appellant. The chief supported the claim by the Respondent by virtue of the fact that the Respondent is a son to the brother of the deceased and therefore a close family member to inherit the estate. It also transpired from the meeting that the deceased had expressed that his land was to be occupied by the sons of his brother Joanes Jure Sino who is the Respondent’s father. It also transpired that the Respondent had been on the land for more than 23 years and that nobody had raised any issues. 16. In re Estate of Gamaliel Otieno Onyiego (Deceased) [2018] eKLR Makau J explained the purport of section 66 as follows: “ 18. 17. Section 39 of the Law of Succession Act provides thus: (1) (2) 18. Under Part V referred under section 66(b), the persons given priority over an intestate estate are the surviving spouse and children. That where the intestate has unfortunately left no surviving spouse or children, the provisions of section 39 of the Law of Succession Act stipulate the net intestate shall devolve upto the kindred of the intestate in manner of order of priority.” Where an intestate has left no surviving spouse or children, the net intestate estate shall devolve upon the kindred of the intestate in the following order of priority— (a) father; or if dead (b) mother; or if dead (c) brothers and sisters, and any child or children of deceased brothers and sisters, in equal shares; or if none (d) half-brothers and half-sisters and any child or children of deceased half-brothers and half-sisters, in equal shares; or if none (e) the relatives who are in the nearest degree of consanguinity up to and including the sixth degree, in equal shares. Failing survival by any of the persons mentioned in paragraphs (a) to (e) of subsection (1), the net intestate estate shall devolve upon the State, and be paid into the Consolidated Fund. It is worth noting that dependency is a question of fact. It was therefore the responsibility of the Appellant/Objector to adduce sufficient evidence which on a balance of probability would sway the court to find that he is entitled to inherit from the deceased’s estate. Even though the Appellant is indicated in the chief’s meeting as having claimed that he is a child to the deceased, the evidence of one of the village elders by the name Joseph Omondi Owino was that Josephine Abuor (mother to https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/13264/eng@2025-09-26 5

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Appellant) had made a deliberate decision to register all her children in Abuor’s name; and that Abuor’s family have vast land and the Appellant and his siblings are not under any threat to be disinherited as they are entitled to those parcels of land namely South Gem/Wagai/44 and 700. From the chief’s letter dated 31/10/2023, it came out clearly that the Respondent was found to be the closest member of the deceased’s family to take out letters of grant and therefore the filing of Succession Cause 304 of 2023 by the Respondent was proper and that the Appellant’s attempt to discredit it was found to lack basis. 19. Learned counsel for the Appellant sought reliance on the provisions of Section 29(a) of the Laws of Succession Act to come up with the proposition that the deceased had taken in the Appellant as his child and maintained him. The said Section 29 (a) provides as follows: 29 Meaning of “dependant” For the purposes of this Part, “dependant” means – a. The wife or wives, or former wife or wives, and the children of the deceased whether or not maintained by the deceased immediately prior to his death. b. ….. c. ….. From the foregoing provision, the Appellant was required to avail evidence to the effect that the deceased accepted him and his siblings as his own children and that the deceased had assumed parental responsibility over them. From the Appellant’s affidavit as well as the minutes of the meeting conducted by the chief dated 16/10/2023, the Appellant’s claim of having been maintained by the deceased was not established. This then leaves out the Respondent and his siblings to be the nearest relatives of the deceased in terms of the degree of consanguinity. Indeed the Respondent and his siblings are sons of the brother of the deceased herein. 20. From the foregoing observations, it is clear that the Appellant in secretly filing Succession Cause No. 324/2022 without alerting the family members was intended to lock out the genuine beneficiaries. I find that the intentions of the Appellant was to get double inheritance at the expense of the deceased’s kindred who include the Respondent herein. It is instructive that the Appellant deliberately omitted to talk about the existence of his father’s parcels of land namely South Gem/Wagai/44 and 700 and has concentrated his energies on the deceased’s parcel South Gem/Wagai/241. I find that the Appellant did not present sufficient evidence to warrant revocation of grant that had been issued to the Respondent. The finding by the trial court in dismissing the Appellant’s summons for revocation of grant dated 17/3/2023 was proper and must be upheld. 21. In view of the foregoing observations, it is my finding that the Appellant’s appeal lacks merit. The same is dismissed. Each party to bear their own costs. DATED AND DELIVERED AT SIAYA THIS 26TH DAY SEPTEMBER, 2025. D. KEMEI JUDGE In the presence of: N/A Otieno - for Appellant N/A Ochanyo - for Respondent Okumu - Court Assistant https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/13264/eng@2025-09-26 6

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