Everlyn M. Magati & 2 others v Mary Moraa Onsomu & 1 other

3. The Court issued directions for the hearing of both the Summons for Confirmation and the Protest by way of written submissions. Background 4. Following the death of the deceased, the Petitioners obtained interim orders in Keroka Civil Suit No. 109 of 2023 restraining the Protestors from excluding them from the burial arrangements. Despite a consent order for joint participation in the burial arrangements, the Petitioners were excluded from the said burial. The alleged Will was also not produced before Keroka Court. 5. A dispute thereafter arose as to whether she had died testate or intestate. While the Protestors maintained that the deceased had left a written Will, the Petitioners argued that no valid Will was ever produced despite repeated requests. 6. The Petitioners subsequently filed Nyamira CM’s Misc. Succession Cause No. 65 of 2023 (Citation) against the 1st Protestor who was ordered her to file succession proceedings within 30 days, failing which the Petitioners would be at liberty to file the same. The 1st Protestor did not take any action within the stipulated period, and hence the Petitioners filed HCFP&A E005 of 2024, wherein they obtained Grant of Letters of Administration Intestate. 7. The Protestors later filed HCFP&A E006 of 2024 for Probate of a Will on 7th February 2024, without leave of the court or extension of time. The two matters were consolidated on 20th March 2025. Petitioners/Applicants’ Case 8. The Petitioners’ case was that the deceased died intestate as the Protestors did not produce any Will before any authority or forum prior to their late filing of HCFP&A E006 of 2024 for Probate of a Will on 7th February 2024. 9. According to the Petitioners, the Protestors forfeited their right to file succession proceedings after failing to act within 30 days as directed by the court in Misc. Succession No. 65 of 2023. It was submitted that the subsequent filing for probate, without the leave of court, is legally untenable. 10. It was submitted that the proposed mode of distribution divides Land Parcel No. Nyansongo/ Settlement Scheme/111 measuring 10.7 hectares into four equal portions among the deceased’s four children or their representatives. 11. It was the Petitioners’ case that the alleged Will is a fabrication intended to disinherit the deceased’s granddaughters based on their gender and marital status. They urged this court to confirm the Grant as proposed in the Affidavit in support of the Summons for Confirmation of Grant. Protestors’ Case 12. The Protestors’ position was that the deceased died testate, having executed a valid Will which they attached to the Affidavit of Protest and marked as annexure MMO-1. The Protestors submitted that the deceased appointed executors in the said Will and that the administration of her estate should proceed by way of Probate, not Intestacy. 13. The Protestors’ case was that the Petitioners were aware of the Will and therefore acted fraudulently by obtaining Letters of Administration Intestate. They maintained that the grant issued to the Petitioners is therefore defective in substance and should be revoked under Section 76 of the Law of Succession Act (Cap 160). https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19384/eng@2025-10-23 2

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14. The Protestors relied on the decisions in Joyce Ngima Njeru & Another vs. Ann Wambeti Njue [2012] eKLR, and In re Estate of Prisca Ong’ayo Nande (Deceased) [2020] KEHC 6553 (KLR), where the courts affirmed that a grant obtained through concealment, fraud, or procedural defect may be revoked. 15. The Protestors urged this court to revoke the Grant of Letters of Administration Intestate, and that probate be issued to the executors named in the Will, or alternatively, that the estate be distributed according to the Will. Issues for Determination 16. I have carefully considered the pleadings filed herein and the submissions by the parties. I find that the following issues arise for determination: a. Whether the deceased died testate or intestate. b. Whether the Grant of Letters of Administration Intestate issued to the Petitioners should be revoked under Section 76 of the Law of Succession Act. c. Whether the Protestors’ filing for probate in HCFP&A E006 of 2024 was valid in law. d. What is the appropriate mode of distribution of the estate. Analysis and Determination 17. On whether the deceased died intestate, I note that while the Protestors alleged the existence of a written Will, they did not produce a certified copy of the said will or any credible evidence of its execution. A perusal of the alleged Will shows that it was not authenticated, nor was any attesting witness called to verify its validity. Section 11 of the Law of Succession Act, stipulates that a Will must be in writing, signed by the testator, and attested by two competent witnesses. I find that in the absence of such proof or authentication, the Court cannot rely on an alleged Will whose authenticity remains unverified. In re Estate of Wahome Njoki (Deceased) [2009] eKLR, it was held that: “ a mere allegation of a Will without production and proof thereof cannot override proceedings for intestate succession.” 18. It did not also escape this court’s attention that the said Will was only brought to the fore after the Petitioners had filed their Petition for grant of letters of administration intestate. This court notes that at no time, prior to the filing of the Petition did the Protestors indicate that the deceased had left a Will thereby lending credence to the Petitioners’ claim that the Will was a fabrication. Accordingly, I find that the deceased died intestate. Issue 2: Whether the Grant to the Petitioners should be revoked 19. On revocation of Grant, I refer to Section 76 of the Law of Succession Act which provides that Grant may be revoked where the same is defective in substance, was obtained fraudulently or through the concealment of material facts. 20. In the present case, I find that the Protestors’ claim of fraud or concealment of material facts is unsubstantiated as the Petitioners lawfully invoked the court’s jurisdiction and obtained the Grant after the Protestors failed to act within 30 days of the Citation order in Misc. Succession No. 65 of 2023. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19384/eng@2025-10-23 3

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21. In Ann Wambeti Njue (supra) the Court of Appeal held that Section 76 of the Law of Succession Act is not meant to attack validly obtained grants, but to address clear defects or deceit in the process. Similarly, In re Estate of Prisca Ong’ayo Nande (Deceased) [2020] the Court emphasized that a grant may be revoked only where the process of obtaining it was fundamentally defective or fraudulent. 22. In the instant case, I find that no material was presented to show that the Grant was defective or fraudulent. It is my further finding that the Protestors’ subsequent filing for probate was out of time and without leave thus making it irregular. Accordingly, I find that the Grant issued to the Petitioners remains valid and untainted. 23. Turning to the validity of HCFP&A E006 of 2024, I note that the Protestors filed this cause on 7th February 2024, more than 60 days after the court’s directions to commence succession proceedings within 30 days had expired. It is instructive to note that the Protestors did not make any application for extension of time. I find that this renders the late filing of the cause was irregular and incompetent. In Re Estate of Gitau (Deceased) [1991] eKLR, it was held that: “ a party who ignores a court order directing filing of succession within a specific period cannot thereafter seek the same relief without leave of the court.” 24. I therefore find that the Protestors’ probate proceedings were procedurally defective. 25. On the issue of the appropriate mode of distribution, the Petitioners proposed equal division of Land Parcel No. Nyansongo/Settlement Scheme/111 (10.7 Ha) among the four children of the deceased or their representatives. 26. I find that the Petitioners’ proposed mode of distribution aligns with Section 38 of the Law of Succession Act, which provides that where an intestate has left children but no surviving spouse, the estate shall be equally divided among the children. 27. It is my considered view that the Protestors’ claim for exclusive benefit, under an unproven Will, would have the effect of unjustly disinheriting other beneficiaries. I find that the proposed equal distribution is fair, lawful, and in accordance with the principles of equity. Conclusion and Orders 28. 29. Having carefully considered all the material before this Court, I make the following final orders: a. The deceased, Esther Kemunto Onsomu, died intestate. b. The Grant of Letters of Administration Intestate issued to the Petitioners on 24th October 2024 was lawfully obtained. c. The Protestors’ Affidavit of Protest dated 7th July 2025 and the claim for revocation under Section 76 are dismissed for want of merit. d. The Summons for Confirmation of Grant dated 29th May 2025 is hereby allowed. e. The estate, namely Land Parcel No. Nyansongo/Settlement Scheme/111, shall be distributed equally among the four children of the deceased or their respective beneficiaries, as proposed in the affidavit in support of the Summons for Confirmation of Grant. f. Each party shall bear their own costs. Orders accordingly. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19384/eng@2025-10-23 4

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JUDGMENT DATED, SIGNED AND DELIVERED AT NYAMIRA VIRTUALLY VIA MICROSOFT TEAMS THIS 23RD DAY OF OCTOBER 2025. W. A. OKWANY JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19384/eng@2025-10-23 5

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