Rutto Alfred v Mutai Nicholas

iv. Hellen Chepngeno Rotich Married daughter v. Lily Cherop Munai Daughter (deceased) vi. Ismael Kiprotich Mutai Son vii. Charles Kiprono Mutai Son viii. Robert Kipkoech Mutai Son ix. Janeth Chemutai Sang Daughter x. Geoffrey Kipngeno Mutai Son 2nd household. i. Sally Chepngeno Langat Widow ii. Emily Cherotich Maritim Married daughter iii. Raphael Kipngeno Mutai Son iv. Cornelius Kipkirui Mutai Son v. Nicholas Kipkorir Mutai Son vi. Evaline Chepkemoi Daughter vii. Geoffrey Cheruiyot Mutai Son 5. It was the Objector’s case that the Petitioner did not seek consent from all the beneficiaries of the deceased’s estate while petitioning for the Grant. That the Petitioner applied for the Grant while excluding members of the first household i.e. the families of Lydia Chepketer Langat (deceased) and Lily Cherop Munai (deceased). 6. Through his written submissions dated 14th April 2025 and 15th May 2025, the Objector submitted that the Petitioner deliberately concealed the existence of all the beneficiaries from the 1st household while obtaining the Grant. That this rendered the Grant defective and he relied on section 76 of the Law of Succession Act and re Estate of Julius Ndubi Javan (2018) eKLR. The Objector further submitted that the deceased’s estate was in imminent danger of wasted or unfairly distributed. 7. It was the Objector’s submission that the Petitioner had acknowledged him as the first-born son of Lydia Chepketer Langat. That the allegation that he had other properties was unfounded. It was the Objector’s further submission that the Petitioner failed to disclose all the deceased’s assets i.e. Kobor farm, Tegat farm, Teta Kapallan far, plot no.170 at Elburgon, Chemoiben plot no. 16 et.al. 8. The Objector submitted that the Law of Succession Act takes precedence over customary laws and that women have the same inheritance rights as men. That his mother (Lydia Chepketer Langat) could not inherit due to cultural inhibitions that discriminated against him on the basis of Kipsigis customary adoption. The Objector further submitted that his mother died when he was a minor and he was taken away by Ruth Koskei so that he could attend school. 9. It was the Objector’s submission that there was no evidence indicating that he was an adopted child and further that there was no evidence indicating that he was the beneficiary of the properties belonging to Ruth Koskei. That Ruth Koskei disassociated herself from him in the year 2014 after the demise of the deceased. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/13612/eng@2025-10-02 2

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10. The Objector submitted that the names of the children of the deceased’s daughters (Lydia Chepketer Langat and Lily Munai) had been excluded from the succession proceedings. The Objector further submitted that the Minutes that the Petitioner relied on were Minutes from a meeting that took place two weeks before the deceased’s death. That the deceased was gravely ill and was unable to participate in such a meeting. The Response. 11. Through his Replying Affidavit dated 29th January 2025, the Petitioner stated that the Objector was the adopted son of Ruth Koskei and had many pieces of land given to him by his adopted mother. That the Objector was not a beneficiary of the deceased’s estate. The Petitioner further stated that the deceased had distributed his estate before his death. 12. It was the Petitioner’s case that the Objector had not shown interest to be included as a beneficiary during the deceased’s lifetime and had no surviving next of kin. That he filed the current succession proceedings after agreement by family members as all the assets had already been fully subdivided by the deceased in his lifetime. It was the Petitioner’s further case that they had been living in peace after the death of the deceased. 13. Through his written submissions dated 28th April 2025, the Petitioner submitted that the Objector’s mother did not have any properties at the time of her death. That the Objector was an adult when the deceased died and he never requested to be given any property. 14. It was the Petitioner’s submission that the 1st household was fully represented and they were all in agreement with his proposed mode of distribution. That the Objector was not representing anyone in the first household and that he was the deceased’s grandson. 15. The Petitioner submitted that the deceased had already distributed his estate and began doing so as far back as the year 1990 and that the sharing was formalized through a family meeting. That the family chose one administrator to distribute the land on behalf of the others. The Petitioner further submitted that some of the deceased’s properties were not to be shared including Chemoiben plot 16 as it was part of the Government Road Expansion Programme. That the Tegat plot in Nakuru was allocated to Philemon Cheruiyot Mutai. 16. It was the Petitioner’s submission that adoption severed the legal relationship between a biological parent and the child. That there was no basis for the Objector to be a dependant of the deceased. He relied on section 29 of the Law of Succession Act and re Estate of M’Muthania Mwendwa (Deceased) (2016) eKLR. It was the Petitioner’s submission that the Objector had to prove that he had been maintained by the deceased during his lifetime. 17. I have gone through the record, the Summons for Revocation dated 14th January 2025, the Replying Affidavit dated 29th January 2025, the Objector’s written submissions dated 14th April 2025 and 15th May 2025 and the Petitioner’s written submissions dated 28th April 2025. The sole issue for my determination was whether there were sufficient grounds to revoke the Grant dated 16th July 2024. 18. The law on revocation of Grants is provided for in Section 76 of the Law of Succession Act which states that: 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; https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/13612/eng@2025-10-02 3

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(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- (e) 19. (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 that the grant has become useless and inoperative through subsequent circumstances. In the case of Jamleck Maina Njoroge v Mary Wanjiru Mwangi [2015] KEHC 7143 (KLR), Achode J. (as she then was) observed: “ The circumstances that can lead to the revocation of grant have been set out in Section 76 Law of Succession. For a grant to be revoked either on the Application of an interested party or on the court’s own motion there must be evidence that the proceedings to obtain the grant were defective in substance, or that the grant was obtained fraudulently by making of false statement, or by concealment of something material to the case, or that the grant was obtained by means of untrue allegations of facts essential in point of law.” 20. Similarly, Mwita J.in Albert Imbuga Kisigwa v Recho Kavai Kisigwa [2016] KEHC 1528 (KLR) held: “ Power to revoke a grant is a discretionary power that must be exercised judiciously and only on sound grounds. It is not a discretion to be exercised whimsically or capriciously. There must be evidence of wrong doing for the court to invoke section 76 and order to revoke or annul a grant. And when a court is called upon to exercise this discretion, it must take into account interests of all beneficiaries entitled to the deceased’s estate and ensure that the action taken will be for the interest of justice.” 21. In the present case, the Objector stated that he was the first-born son of Lydia Chepketer Langat (deceased) who was the first-born daughter of Stanley Kimutai Langat (deceased). The Objector further stated that the Grant was obtained fraudulently as the Petitioner did not seek consent from members of the first household specifically from the families of Lydia Chepketer Langat and Lily Cherop Munai who were both deceased. On the other hand, the Petitioner stated that the Objector had no locus to want the Grant revoked as he was adopted. 22. From the pleadings, it was clear to me that the Objector was adopted soon after the death of his mother (Lydia Chepketer Langat). The Petitioner has also admitted that the Objector was the deceased’s https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/13612/eng@2025-10-02 4

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grandson and would visit him during his lifetime. It was thus evident that the Objector was the deceased’s grandson by virtue of being the son of the deceased’s daughter. 23. On the issue whether the Objector was a beneficiary of the deceased’s estate, I am persuaded by Gitari J. in re Estate of Joyce Kanjiru Njiru (Deceased) [2017] KEHC 1435 (KLR) where she held: “ From the definition given under Section 29 (supra) the spouses and children of the deceased have priority to inherit the estate. The grandchildren and others can inherit if they were being maintained by the deceased prior to her death. In this present cause, the two grandchildren are not claiming interests as dependants but are coming in to claim the interests of their respective parents who are now deceased. My view is that the children are entitled to inherit the share which their deceased parents would have inherited” ……. (Emphasis mine) 24. Similarly, in the Matter of the estate of Veronica Njoki Wakagoto (Deceased) [2013] KEHC 1930 (KLR), Musyoka J. held: “ ……….grand children can only inherit their grandparents indirectly through their own parents, the children of the deceased. The children inherit first and thereafter the grandchildren inherit from the parents. The only time grandchildren inherit directly from their grandparents is when the grandchildren’s own parents are dead. The grandchildren step into the shoes of their parents and take directly the share that ought to have gone to the said parents.” 25. Flowing from the above, it is my finding that the Objector was a beneficiary of the deceased’s estate. 26. That said, I have carefully gone through the Petition and I have noted that the Petitioner failed to include the names of Lydia Chepketer Langat and Lily Cherop Munai (both deceased) as beneficiaries in his Petition. It is my finding that the Petitioner concealed this crucial information from this court while obtaining the Grant. Thus, the Grant can only be classified as defective as contemplated under section 76 of the Law of Succession Act. 27. In the end, the Grant dated 16th July 2024 is revoked. RULING DELIVERED, DATED AND SIGNED AT BOMET THIS 2 ND DAY OF OCTOBER, 2025. …………………………………… . HON. JULIUS K. NG’ARNG’AR JUDGE Ruling delivered in the presence of: Siele/Susan (Court Assistants) Objector: present Petitioner: present https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/13612/eng@2025-10-02 5

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