Mark Ochieng Otieno v Siprosa Ombori & 3 others

[2] Upon confirmation of Grant, the appellant proceeded to transmit the sole asset comprising the estate of the deceased to himself as the absolute owner. Being aggrieved by that turn of events, the respondents applied for revocation of grant to pave way for the appointment of new administrators vide their Summons dated 22nd January 2024. In her ruling dated 28 th January 2025, the learned magistrate allowed the respondents’ application and granted orders to the following effect: [a] The Grant of Letters of Administration Intestate issued to the petitioner and the subsequent Certificate of Confirmation of Grant was revoked. [b] The Land Registrar Homa Bay County was ordered to place a caution over land parcel No. Homa Bay/K/K/Karating/3565 barring any dealings on the land until further grant is issued. [c] The Chief, Central Kabuoch Location was ordered to write a proper introduction letter listing all the surviving beneficiaries of the estate of Janes Owuor Genga indicating how they are related to the deceased. [d] The beneficiaries were ordered to thereafter agree on who would be the administrator of the estate and move the court accordingly for the issuance of Grant of Letters of Administration Intestate in respect of the estate of the deceased. 2|Page 2|Page HCCA NO. E009 OF 2025 HCCA NO. E009 OF 2025 JUDGMENT JUDGMENT

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[d] The dispute was referred to Court Annexed Mediation. [3] The ruling and orders aforementioned provoked the instant appeal. The appellant contended that: [a] The learned magistrate erred in law and fact and went outside the Law of Succession Act by declaring the 2 nd and 3rd respondents as beneficiaries of the deceased's estate while the said respondents did not fall under the purview of beneficiaries of the deceased as per the family organogram and as per the Law of Succession Act. [b] The learned trial magistrate misdirected herself in law and fact by issuing a directive that the parties should again present themselves before the area chief for introduction in a matter already adjudicated by her court. [4] In the premises, the appellant prayed that the limb of the ruling of the lower court allowing the 2 nd and 3rd respondents to inherit the estate of the deceased be set aside and that the 2 nd and 3rd respondents be excluded as either dependents or beneficiaries of the estate. He also prayed for costs of the appeal. [5] The appeal was canvassed by way of written submissions in accordance with the directions given herein on 30 th September 2025. The appellant relied on his written submissions dated 13 th October 2025 in which he reiterated his stance that the learned magistrate erred by declaring the 2 nd and 3rd respondents as beneficiaries of the estate of Janes Genga Owuor (deceased), 3|Page 3|Page HCCA NO. E009 OF 2025 HCCA NO. E009 OF 2025 JUDGMENT JUDGMENT

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yet they did not fall under the purview of beneficiaries as set out in the family organogram and the Law of Succession Act. Thus, according to the appellant, the respondents have no share in the subject estate; and are simply out to take advantage of the fact that the deceased left no widow or children. [6] The respondents also filed their written submissions dated 10th February 2026. It was their submission that the learned Magistrate correctly declared the 2 nd and 3rd respondents as beneficiaries of the deceased's estate in accordance with the Law of Succession Act and the evidence adduced before the lower court. In their view, the issue of whether the 2 nd and 3rd respondents are beneficiaries was premised on Section 39(1) of the Law of Succession Act and the evidence presented before the lower court. [7] The respondents submitted that, because the deceased left no parents, spouse or children at the time of his death, his estate devolved upon "other relatives by blood" under Section 39(1)(v) of the Act. They therefore urged the Court to find that the learned magistrate correctly found that the 2 nd and 3rd respondents, being descendants of the Patriach Olala through different wives, were "other relatives by blood" entitled to share in the estate. They impugned the appellant’s argument that the 2 nd and 3rd respondents are "only clan members" or "distant relatives" and contended that that argument is misconceived since the Law of Succession Act does not distinguish between "close" and "distant" 4|Page 4|Page HCCA NO. E009 OF 2025 HCCA NO. E009 OF 2025 JUDGMENT JUDGMENT

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relatives in Section 39(1)(v). In their view, the category "other relatives by blood" is all-encompassing and includes all blood relatives who do not fall within the specific categories in Sections 39(1)(a)-(f). [8] They further submitted that since the appellant himself falls within the same category of "other relatives by blood" as the 2 nd and 3rd respondents as per the family organogram exhibited before the lower court, he cannot selectively claim beneficiary status while excluding others who share a similar relationship with the deceased. [9] In the premises, the respondents urged the Court to find that the learned Magistrate correctly interpreted and applied Section 39(1)(v) of the Law of Succession Act in declaring the 2 nd and 3rd respondents as beneficiaries of the estate of Janes Genga Owuor (deceased). They posited that the appellant is merely intent on monopolizing the deceased's estate to the exclusion of other rightful beneficiaries. They prayed for the dismissal of the appeal in its entirety with costs, and for a confirmation that the 2nd and 3rd respondents as indeed beneficiaries of the estate of Janes Genga Owuor (deceased). [10] This being a first appeal, it is the duty of the Court to reevaluate the evidence adduced before the lower court with a view of coming to its own findings and conclusions thereon; while giving due consideration for the fact that it did not have the advantage of seeing or hearing the witnesses. The principle was 5|Page 5|Page HCCA NO. E009 OF 2025 HCCA NO. E009 OF 2025 JUDGMENT JUDGMENT

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restated in Selle & Another v Associated Motor Boat Co. Ltd & Others [1968] EA 123 as follows: "...this court is not bound necessarily to accept the findings of fact by the court below. An appeal to this court ... is by way of retrial and the principles upon which this court acts in such an appeal are well settled. Briefly put they are that this court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect..." [11] The learned magistrate disposed of the application for revocation of grant dated 22nd January 2024 by way of viva voce evidence. She heard the evidence of several witnesses. They included the respondents and Mary Akinyi Abia (sister-in-law to the deceased), Gordon Otieno Okiaka (nephew to the deceased), Joseph Okiaka (cousin to the deceased), Charles Omollo Makonjo (immediate neighbor and relative), and Capis Olala (Area Chief). The learned magistrate also took into consideration the Replying Affidavit of the appellant and the family organogram annexed thereto as Annexure MOO-01, which clearly depicted the genealogical relationship between the parties and the deceased. The learned magistrate also made reference to the Chief's letter dated 26th July 2023 confirming the beneficiaries and the witness statements. [12] From the evidence presented before her, the learned magistrate noted as follows on the contentious issue of whether the 2nd and 3rd respondents are beneficiaries of the deceased: [a] That the 2nd and 3rd applicants are the nephews to the deceased while the 4th applicant is his grandson. 6|Page 6|Page HCCA NO. E009 OF 2025 HCCA NO. E009 OF 2025 JUDGMENT JUDGMENT

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[b] The organogram filed by the petitioner shows that the 2nd applicant is a son to Joseph Olony who is a cousin/halfbrother to the deceased; and is therefore the deceased's nephew. [c] The 3rd applicant is a son to Peter Olala Opudo who is a cousin/half-brother to the deceased. He is therefore a nephew to the deceased. [d] The 4th applicant is a step-grandson to the deceased. [e] Other than the applicants, there are other family members who rank higher in priority to them who were also left out of the proceedings, including Joseph Okiaka and George Odhiambo who are brothers to the deceased. [f] The petitioner admitted that Joseph and George are cousins/half-brothers to the deceased and that their names were omitted from the succession proceedings. [g] The organogram filed by counsel for the petitioner confirmed that Joseph and George are cousins/ half-brothers to the deceased. [13] From the evidence presented before the lower court, it is manifest that there were several relatives of the deceased that ranked higher or in pari passu with the appellant but who were not included either in the Chief’s letter or in the Affidavit in Support of Petition for Grant of Letters of Administration Intestate 7|Page 7|Page HCCA NO. E009 OF 2025 HCCA NO. E009 OF 2025 JUDGMENT JUDGMENT

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(Form P&A.5), yet Rule 26(2) of the Probate and Administration Rules provides that: “An application for a grant where the applicant is entitled in a degree equal to or lower than that of any other person shall, in default of renunciation, or written consent in Form 38 or 39, by all persons so entitled in equality or priority, be supported by an affidavit of the applicant and such other evidence as the court may require.” [14] Moreover, Rule 7(7) of the Probate and Administration Rules places an obligation on the appellant to ensure that all those of the deceased’s relatives who stood in priority or equal ranking with him furnished either their consent to his being issued with Grant or renunciation of their respective rights. The rule states: “Where a person who is not a person in the order of preference set out in section 66 of the Act seeks a grant of administration intestate he shall before the making of the grant furnish to the court such information as the court may require to enable it to exercise its discretion under that section and shall also satisfy the court that every person having a prior preference to a grant by virtue of that section has— (a) (b) (c) renounced his right generally to apply for a grant; or consented in writing to the making of the grant to the applicant; been issued with a citation calling upon him either to renounce or to apply for a grant. [15] There was no indication of compliance with the above rules by the appellant. In effect he fell short of making material disclosure to the lower court. Section 76 of the Law of Succession Act is explicit 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; (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; 8|Page 8|Page HCCA NO. E009 OF 2025 HCCA NO. E009 OF 2025 JUDGMENT JUDGMENT

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(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-(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 assist 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 (d) that the grant has become subsequent circumstances.” useless and inoperative through [16] In the premises, the learned magistrate cannot be faulted for revoking the Grant issued to the appellant. The net effect of her decision is to unwind the clock and require that the Petition for Grant of Letters of Administration Intestate be revisited. Of course on the material available to her, the lower court ought to have determined who ought to be the administrators jointly with the appellant to ensure speedy resolution of the dispute. Nevertheless, no prejudice will be suffered by the appellant if the steps preceding re-issuance and confirmation of Grant are taken with the involvement of the relatives of the deceased who rank either higher in terms of priority or in pari passu with him. [17] That is the essence of Section 39 of the Law of Succession Act. It states: 9|Page 9|Page HCCA NO. E009 OF 2025 HCCA NO. E009 OF 2025 JUDGMENT JUDGMENT

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"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) the father and mother of the intestate, or the survivor of them; (b) the brothers and sisters of the intestate, and the children of deceased brothers and sisters, in equal shares; (c) the half-brothers and half-sisters of the intestate, and the children of deceased half-brothers and half-sisters, in equal shares; (d) the grandparents of the intestate in equal shares; (e) the uncles and aunts of the intestate, and the children of deceased uncles and aunts, in equal shares; (f) the half-uncles and half-aunts of the intestate, and the children of deceased half-uncles and half-aunts, in equal shares; (g) the other relatives by blood of the intestate in equal shares." [18] In the result, I find no merit in the appeal. The same is hereby dismissed with no order as to costs, considering the nature of the dispute. It is so ordered. DATED, SIGNED AND DELIVERED VIRTUALLY THIS 8TH DAY OF MAY 2026 …………………….…………………… HON. OLGA SEWE JUDGE 10 | P a g e 10 | P a g e HCCA NO. E009 OF 2025 HCCA NO. E009 OF 2025 JUDGMENT JUDGMENT

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