High Court 17961 of 2025

year 2007, she filed a petition dated 24th April 2007 seeking to divorce the deceased citing exceptional cruelty and hardship. The matter however never proceeded to conclusion and decree absolute not issued. The applicant/objector is also accused of not disclosing the fact that subsequent to her petition for divorce, the deceased also petitioned for dissolution of the marriage by filing a petition dated 10th September 2021citing grounds of dissertation and irretrievable breakdown of their marriage. The deceased however passed on before the petition could be determined. 4. The respondent avers that the objector failed to disclosed the fact that the deceased died testate, with a valid written will dated 3rd September 2021 in which the deceased detailed his marital status, confirming his separation from the objector who she addressed as "former wife” and affirmed his marriage to the respondent and her status as a wife. The deceased also appointed her and Ambassador Peter Ole Nkuraya as the executors of his will. 5. The respondent avers that the deceased by his valid and existing will bequeathed her of land parcel no KJD/OLCHORO-ONYORE/34574, KJD/OLCHORO-ONYORE/34573, Plot No.C77 Ongata Rongai T. Center and all monies held in Equity Bank Account Kiserian 06101920867654 and National Bank Ongata Rongai Account No 01243003384800 a fact the objector failed to disclosed to the court. 6. The respondent therefore urges this court to dismiss the application as the applicant has not proved any grounds that warrants the revocation or annulment of grant under the provisions of Section 76 of the Law of Succession Act. 7. The applicant filed a supplementary affidavit dated 28th April 2025 in response to affidavit dated 10th march 2025 whose contents I have read and considered. Applicants submissions 8. In its brief submissions, the applicant counsel contend that they have established that the objector is a legal wife of the deceased having been married in 1970 and attached a copy of the marriage certificate to that effect and further that the applicant has never separated with the deceased in January 1994 as alleged by the respondent. Counsel submits that the statutory marriage celebrated between the objector and the deceased was never dissolved neither a decree nisi nor decree absolute issued in any court. 9. It is submitted that the deceased did not die testate and the will attached to the respondent affidavit is invalid for the reason that the same was not paid for and registered. In addition, it is submitted that the appointment of ambassador Peter Ole Nkuraya is invalid for the reason that he is not a beneficiary of the deceased estate. Respondent Submissions 10. The respondent submitted on three main issues; whether the deceased written will is valid, whether the executor has to be a beneficiary to the estate of the deceased and whether the applicants presented sufficient evidence and met the conditions to warrant revocations or annulment of the Grant dated 8th July 2024. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/17961/eng@2025-11-25 2

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11. It is the respondent’s case that the deceased will dated 3rd September 2021 is valid based on the capacity of the testators to make a will and compliance with the formal requirements. Section 5 of the law of succession provides as follows; “ persons capable of making wills and freedom of testation Subject to the provisions of this part and part iii every person who is of sound mind and not a minor may dispose of all or any of his free property by will, and may thereby make any disposition by reference to any secular or religious law that he chooses. A female person, whether married or unmarried, has the same capacity to make a will as does a male person. Any person making or purporting to make a will shall be deemed to be of sound mind for the purpose of this section unless he is at the time of executing the will, in such a state of the mind, whether arising from mental or physical illness, drunkenness, or from any other cause, as not to know what he is doing The burden of proof that a testator was, at the time he made any will, not of sound mind, shall be upon who so alleges” 12. The respondent submitted citing the case of Elizabeth Kamene Ndolo vs George Matata Ndolo (1996) and the Estate of Kevin John Ombajo (2020) eKLR that every Kenyan has unfettered testamentary freedom to dispose his or her property by will in any manner he or she sees fit and mere sickness without evidence of such sickness affecting testator’s mental capacity is not enough. 13. As regards formal compliance, the respondent cited section 11 of the law of succession for the requirement of a testator’s signature and those of two witness or more who have seen the testators sign or affix his mark to the will. 14. On whether an appointed executor of a will must be a beneficiary to the estate of the deceased, counsel submitted that there is no such requirement in law. That section 3 of the law of succession Act defines an executor as a person to whom the execution of the last will of the deceased person is, by testator’s appointment confined and that under section 6 of the Act, a person may by will appoint an executor or executors. 15. It is therefore submitted that the applicant contention and objection to the appointment of ambassador Peter Nkuraiya for the reason that he is not a beneficiary or dependant of the deceased has no legal basis. Section 66 of the Act is cited as an example that if the law required that an executor and administrators be beneficiaries of the estate, then public trustees and creditors would not be able to administer the estate of the deceased persons. 16. Finally, the respondent submitted that the applicant has not met the conditions to warrant revocation of grant dated 8th July 2024 as provided for in section 76 (b) of the law of succession. The respondent also takes issue with the applicant introduction of a new grounds not cited in the application for revocation to with section 76 (a) of the Act. Analysis and determination 17. The law of succession Act Cap 160, Laws of Kenya provides for revocation of Grant under section76, which states as follows; a. A grant of representation, whether or not confirmed, may at any time be revoked or annulled if the court decide, either on application by interested party or of its own motion; https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/17961/eng@2025-11-25 3

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b. That the proceedings to obtain the grant were defective in substance; c. That the grant was obtained fraudulently by making of a false statement or by the concealment from the court of something material to the case; d. That the grant was obtained by means of untrue allegations of fact essential in point of law to justify the grant notwithstanding that the allegations was mad in ignorance or inadvertent e. 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 allow; or to proceed diligently with the administration of the estate ;or to produce to the court, within time prescribed, any such inventory or account of administrations is required by the provisions of paragraph (e) and (g) of section 83 or has produced any such inventory or account which is false in any material particulars; or f. That the grant has become useless and inoperative through subsequent circumstances. 18. The grounds upon which a Grant may be annulled is set out clearly in law and a party moving the court seeking that the Grant be revoked must bring himself/herself within the parameters of the law and demonstrate interest in the cause and establish the existence of the grounds upon which the Grant is impugned. In the context of a probate an interested person is one who has an interest in the estate of a deceased person and includes; spouse(s) beneficiaries, heir devisee, child, creditor and any other person that has a right in or claim against the estate of the deceased. 19. Revocation or annulment of 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 once a party satisfy the court the presence of the above parameters. See the case of In re Estate of Prisca Ong’ayo Nande (Deceased) [2020] eKLR where it was stated that: “Under section 76, a court may revoke a grant so long as the grounds listed above are disclosed, either on its own motion or on the application of a party. A grant of letters of administration may be revoked on three general grounds. 20. The first is where the process of obtaining the grant was fraught with challenges. The first would be where 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. 21. 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. 22. The second general ground is where the grant was obtained procedurally, but the administrator, thereafter, got into problems with the exercise of administration, such as where he fails to apply for confirmation of grant within the time allowed, or he fails to proceed diligently with administration, or fails to render accounts as and when required. 23. The third general ground is where the grant has become useless and inoperative following subsequent circumstances, such as where a sole administrator dies leaving behind no administrator to carry on the exercise, or where the sole administrator loses the soundness of his mind for whatever reason or even becomes physically infirm to an extent of being unable to carry out his duties as administrator, or the sole administrator is adjudged bankrupt and, therefore, becomes unqualified to hold any office of trust.” https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/17961/eng@2025-11-25 4

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24. From the evidence before this court it is clear that the applicant/objectors main challenge to the Grant is premised on fraud, misrepresentation or concealment of a matter to wit the fact that the applicant as spouse/wife of the deceased was not disclosed and neither her consent sought and obtained. 25. It is indeed true and a marriage certificate was attached, that the applicant/objector was married to the deceased in 1970 and lived together as such until 5th January 1994 when both started living separately. The objector in her petition for divorce dated 24th April 2007 stated that it was the deceased who deserted the matrimonial home from January 1994 and on the other hand, the deceased in his petition for dissolution of marriage dated 10th September 2021at paragraph 6 (b) alleges that it was the objector who deserted the matrimonial home and lived elsewhere. 26. The petition for divorce filed by the objector was never concluded and no reasons were given for that, whereas the one filed by the deceased person, being a personal action abated upon his death. Although by law there is no determination dissolving the marriage between the applicant and the deceased before his demise, their intention was clearly to end the relationship. This intention was obvious and evidenced by both of them separately filing petitions for dissolution of the marriage and the fact of separation from 1994 until the 2021 when the deceased unfortunately passed on. It was only after the death of the deceased in 2021 close to 27 years later that the objector appeared to claim the body of the deceased for burial to the exclusion of the respondent which claim was dismissed by the magistrate court. 27. In view of the above obtaining situation can the applicant/objector be considered as a wife/spouse of the deceased and therefore should have been disclosed and/or included in the petition for grant of probate? I do not think so. The objector for all intent and purposes had parted ways with the deceased without any possibility of coming back together in their lifetime. Their intention was very clear and well demonstrated in filing of the two petitions for divorce. The fact that intention was not effectuated by a court of law and issuance of decree nisi/absolute, does not negate the fact that it was their express intention to terminate it. 28. If there was doubt about the status of the applicant/objector as a wife or spouse of the deceased, then that doubt is resolved by the deceased written will dated 3rd September 2021recognizing and declaring the objector as “former wife” and stating that “my former wife” and I separated and ended our union on 5th January 1994 whereafter we have lived separately.’’ 29. In my view, the applicant/Objector is no longer considered as surviving spouse and loses the right to be a primary administrator and is out of the primary hierarchy provided in the succession Act and therefore the requirement for seeking and obtaining her consent was not available. 30. The challenge by the applicant on the validity of the will dated 3rd September 2021 was rather casual. To contest and invalidate a written will, one must be able to clearly demonstrate by evidence that the testator lacked capacity by reason of mental incapacity at the time of making the will, was coerced or manipulated into making the will or that the will was tampered with and does not comply with the Wills Act among others. Failure to register a will does not make it invalid as long as it substantially meets the requirement of section 5 and 11 of the law of succession. 31. I find the written will dated 3rd September 2021 valid and as such the deceased wishes devolving his property to the beneficiaries including the applicant herein must be respected and upheld unless the court determined otherwise. 32. The challenge on the appointment of executors of the will and especially the appointment of ambassador Peter Ole Nkuraiya is without merit and the same is not supported by law or precedents. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/17961/eng@2025-11-25 5

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33. On whether the application for revocation has merit, from the above analysis the Applicant has not brought the application within the parameters for revocation of the grant issued by this court on 20th June 2024 34. Consequently, the application dated 7th August 2024 is hereby dismissed with cost. DATED AND DELIVERED AT KAJIADO THIS 25th DAY OF NOVEMBER 2025 JOHN T LOLWATAN JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/17961/eng@2025-11-25 6

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