Margaret Nyangara Omangi & 1 other v Kepha Mainye Ongiri & 1 other

4. That the Grant issued to the Petitioners and confirmed on the 7th day of October 2024 be revoked and/or annulled for reasons of being defective and the same having been obtained fraudulently. 5. That this Honourable Court be pleased to grant any other or further orders it may deem fit and expedient in the circumstances to grant. 6. That the costs of this Application be provided for. 2. The Application is premised on several grounds, inter alia, that the Grant of Letters of Administration intestate was obtained without the Applicants’ involvement as the deceased’s daughter and 2nd wife respectively. It was the Applicants’ case that the Petitioners/Respondents did not include them in the proposed mode of distribution as stated in the confirmed Grant, which they contend, does not correspond with the wishes of the deceased. It was also contended that the Petitioners interfered with the bank account that was in the joint names of deceased and the 2nd widow’s (2nd Applicant) and which was to be solely utilized by her. 3. In response to the Application, the Respondents denied all the averments contained in the application and maintained that the deceased’s estate was distributed fairly and in accordance with the wishes of the deceased. 4. The Applicants filed a further affidavit in which they faulted the Petitioners for concealing material facts at the time they obtained the Grant. They contended that the 1st Applicant was entitled to an equal share of the estate as she is daughter of the deceased. They also contended that the claim that the deceased did not want any of his daughters to inherit his Estate was false, misleading and was aimed at disinheriting the deceased’s daughters. They further contended that the Petitioners did not inform the Court that their younger brother one Lamech Nyabuti Ongiri had passed away on 3rd June 2024 during the pendency of the succession proceedings yet they proceeded with the confirmation of Grant on 7th October 2024. 5. The Interested Parties filed an Application dated 19th June 2025 seeking to be enjoined to the proceedings. The said application was allowed by a consent dated 16th July 2025 after which directions were issued for the hearing of the instant application by way of viva voce evidence. 6. The Applicants testified as PW1 and PW2 respectively while the Respondents tendered the evidence of the 1st Respondent, Kepha Mainye Ongiri (DW1) and George Ongiri Mokaya (DW2). 7. At the conclusion of the hearing, the Applicants filed written submissions in support of their case while the Respondents did not file any submissions. Analysis and Determination 8. I have carefully considered the chronology of events in this case, the evidence tendered through sworn affidavits and the viva voce evidence, the statements by the parties, the grounds in the Summons for the Revocation of Grant and the proceedings leading to the confirmation of Grant. I find that the main issue for my determination is whether the Applicants have made out a case for the revocation of Grant. 9. Section 76 of the Law of Succession Act (the Act) and Rule 44 of the Probate and Administration Rules provide as follows: 76. Revocation or annulment of grant https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19374/eng@2025-10-30 2

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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; 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. 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. 10. The deceased herein died intestate but the Respondents and Interested Parties claimed that the deceased expressed his intentions on how his estate should be distributed in a meeting that he held with his sons in the presence of his brothers. One of the surviving brother filed an affidavit dated 4th February 2025 wherein he stated that the deceased instructed them to allocate one acre of land to his two daughters who are unmarried and had no source of income and exclude daughters who are capable of taking care of themselves. 11. According to the 1st Respondent, (DW1) the deceased was of sound mind when he distributed his property to his sons in the presence of his two brothers. He added that his father explained that the married daughters were not to be given land and that only those who were unmarried would benefit from his estate. 12. The same narrative was advanced by the Interested Parties in their jointly sworn affidavit and statement dated 19th June 2025. It would appear that the Respondents and Interested Parties implied that the deceased left an oral Will whose existence was however not proved before this court from the onset as the estate was dealt with as an intestate estate. Indeed the Respondents filed for Intestate proceedings at the point of filing the succession cause. I find that this act of filing for an intestate estate was in itself proof that they were aware that the deceased died without a will. It is my view that the Respondents cannot seek to introduce an oral Will at this stage of the proceedings when the Grant they obtained is under challenge. 13. It is trite that where beneficiaries of an estate fail to reach a consensus on the mode of distribution, Court will be guided by the provisions of the Law of Succession Act and the Constitution in effecting such distribution. It is also trite that the law shuns laws/dictates that are discriminatory and have severally https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19374/eng@2025-10-30 3

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held that estates be distributed equally to all beneficiaries irrespective of their gender or marital status. In Re Estate of John Musambayi Katumanga – Deceased [2014] eKLR where it was held as follows: “ The spirit of Part V, especially sections 35, 38 and 40, is equal distribution, of the intestate estate amongst the children of the deceased. There have been debates on whether the distribution should be equal or equitable. My reading of these provisions is that they envisage equal distribution for the word used in sections 35(5) and 38 is ‘equally’ as opposed to ‘equitably’. This is the plain language of the provisions. The provisions are in mandatory terms – the property “shall … be equally divided among the surviving children.” Equal distribution is envisaged regardless of the ages, gender and financial status of the children.” 14. Turning to the crux of this Application which is revocation of Grant, it was contended that there was concealment of material facts at the point of application and confirmation of the Grant. The Applicants contended that they were not aware of the proceedings. A cursory glance at the Chief’s letter dated 20th March 2023 listing the names of the beneficiaries reveals that the 1st Applicant’s name is missing from the said list. I also note that she 1st Applicant was not among the beneficiaries who were present in court, physically or virtually, on 7th October 2024 at the hearing of the Application for Confirmation of Grant. 15. I note that the Applicant presented proof of her relationship to the deceased through exhibit marked ‘MN-2B’ (Birth Certificate) and the Chief’s letter ‘MN-2A’. I have perused the said documents and I note that she was the deceased’s and 2nd Applicant’s daughter. I am satisfied that she proved this through tangible evidence. This is also a matter that was not disputed by any of the Respondents. They conceded, in their respective affidavits and statements, that she was indeed their sister. It is therefore clear that she was excluded from the succession proceedings without any justifiable cause. 16. It was also contended that the Respondents did not disclose all the properties belonging to the deceased when they applied for the Grant of Letters of Administration. The Applicants listed land in Kerumbe, commercial shops in local markets, tea bushes together with a tea farm which the 1st Respondent stated, had already been given to the 1st wife Bathsheba, who is now deceased. It is clear from the above evidence that the deceased had several assets such as land, bank accounts, shares and tea farms which should have been included in the schedule of assets to be distributed to the beneficiaries. 17. It is my finding that the Respondents/Administrators were required to list all the assets of the deceased in the schedule of assets for distribution so that the same could be transmitted to the rightful beneficiaries as required by Rule 7 of the Probate and Administration Rules which provides as follows: 7. Application for grant: general provisions 1. Subject to the provisions of subrule (9), where an applicant seeks a grant of representation to the estate of a deceased person to whose estate no grant or no grant other than one under section 49 or a limited grant under section 67 of the Act has been made, the application shall be by petition in the appropriate Form supported by an affidavit in one of Forms 3 to 6 as appropriate containing, so far as they may be within the knowledge of the applicant, the following particulars— a. the full names of the deceased; b. the date and place of his death, his last known place of residence, and his domicile at date of death; https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19374/eng@2025-10-30 4

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c. whether he died testate or intestate and, if testate, whether his last will was written or oral, and the place where and the date upon which it was made; d. a full inventory of all his assets and liabilities at the date of his death (including such, if any, as may have arisen or become known since that date) together with an estimate of the value of his assets movable and immovable and his liabilities; e. in cases of total or partial intestacy— i. the names, addresses, marital state and description of all surviving spouses and children of the deceased, or, where the deceased left no surviving spouse or child, like particulars of such person or persons who would succeed in accordance with section 39(1) of the Act; ii. whether any and if so which of those persons is under the age of eighteen years or is suffering from any mental disorder, and, if so, details of it; iii. for the purposes of determining the degree of consanguinity reference shall be made to the table set out in the Second Schedule; f. the relationship (if any) which the applicant bore to the deceased or the capacity in which he claims; g. .............. 18. I further find that even though the Respondents did not inform this Court of the demise of their younger brother, Lamech Nyabuti Ongiri, he was included as a beneficiary in the distribution of the Estate where he is to receive the whole of East Kitutu/Bonyamondo 1/441 measuring 4 Acres. In this regard I dismiss the Applicant’s claim that the Respondents intentionally left out Lamech Nyabuti Ongiri from the distribution of the Estate. 19. In a nutshell, I find that the Applicants have made out a case for the revocation of Grant under Section 76 (b) of the Act as they have adequately demonstrated that there was concealment of material facts at the point of applying for the Grant since some of the beneficiaries and properties of the deceased were excluded. I therefore allow the Application. I am guided by the decision in Re Estate of Prisca Ong’ayo Nande (Deceased) [2020] eKLR where the court held as follows: “ 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. The first is where the process of obtaining the grant was attended by problems. 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. 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. 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. The third general ground https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19374/eng@2025-10-30 5

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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.” 20. 21. Having regard to the findings and observations that I have made in this ruling, I make the following final orders: a. The Grant dated 18th September 2023 issued to Kepha Mainye Ongiri and Jameson Ongiri and confirmed on 18th September 2023 is hereby revoked. b. Since this is a family matter there shall be no orders as to costs. Orders accordingly. JUDGMENT DATED, SIGNED AND DELIVERED VIRTUALLY AT NYAMIRA VIA MICROSOFT TEAMS THIS 30TH DAY OF OCTOBER 2025. W. A. OKWANY JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19374/eng@2025-10-30 6

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