Esther Kananu Mugiira v Ann Gakii Kinegeni & 1 other

3. Esther in the summons for revocation contended that the Respondent had filed the succession cause in the trial court by misleading the court that she was the sole beneficiary of the deceased’s estate without considering her as a beneficiary which amounted to concealment of material facts. 4. The trial court upon considering the summons for revocation and the submissions by the parties, rendered its ruling 13th February 2024 dismissing the summons with costs to the Respondent. 5. Aggrieved with the decision of the trial court, the Appellant lodged the appeal on the following grounds as per the Memorandum of Appeal dated 11th March 2025:i. That the learned trial magistrate erred in law and fact by failing to appreciate that the Appellant was a dependant of the deceased within the meaning of Section HCCA NO. E001 OF 2025 2

page 2 of 27

29 of the Law of Succession Act (Cap 160, of the Laws of Kenya) despite evidence proving the Appellant’s relationship with the deceased. ii. That the trial magistrate erred in fact in failing to consider critical evidence tendered by the Appellant including a deed of indemnity and release which sufficiently demonstrated the Appellant’s entitlement to inheritance. iii. That the learned magistrate erred in law and misinterpreted Section 3 (2) and 3 (5) of the Law of Succession Act which recognizes children born out of wedlock as dependents. disregarded The the ruling unfairly Appellant’s legitimate claim to a share of Land Parcel No. Kiera/E.Magutuni/2271. HCCA NO. E001 OF 2025 3

page 3 of 27

iv. That the trial court erred in law and fact in upholding the Respondent’s objections without properly evaluating whether the Appellant was unfairly excluded from succession proceedings thereby violating the principles of justice and equity. v. That the trial magistrate erred in law and fact by failing to properly interrogate and address concerns that the grant was obtained fraudulently without the Appellant’s knowledge or involvement in the succession process contrary to Section 76 of the Law of Succession Act. vi. That the trial court’s decision violates Article 27 of the Constitution of Kenya (2010) which guarantees equal treatment and non- discrimination in inheritance matters. HCCA NO. E001 OF 2025 4

page 4 of 27

6. The Appellant prayed that the appeal be allowed, the ruling of the lower court be set aside and the grant issued in Succession Cause No. 56 of 2017 be revoked or amended to include the Appellant as the rightful beneficiary with costs of the appeal. 7. This being a first appeal, the Court is under duty to re-evaluate, re-analyse and reconsider the evidence on record and draw its own independent conclusions. The appellate court must give due allowance that it did not see or hear the witnesses testify, but it is required to examine the entire evidence and satisfy itself that the trial court’s conclusions are consistent with the record. This duty was restated by the Court of Appeal in the case of Imanyara & 2 others v Attorney General [2016] KECA 557 (KLR) as follows: “This being a first appeal, it is trite law, that this Court is not bound necessarily HCCA NO. E001 OF 2025 5

page 5 of 27

to accept the findings of fact by the court below and that an appeal to this Court from a trial by the High 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 evaluate it reconsider the evidence, itself draw its and own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowances in this respect.” 8. The Appeal was canvassed by way of written submissions. The submissions dated Appellant 1st May filed 2025 written raising the following issues for determination: - HCCA NO. E001 OF 2025 6

page 6 of 27

i. Whether the Appellant is a dependent of the deceased within the meaning of the Law of Succession Act ii. Whether the Respondent concealed material facts during the petition for grant and confirmation proceedings. iii. Whether the trial magistrate erred in law and in fact in dismissing the Appellant’s summons for revocation of grant iv. Whether the rights of the Appellant under the Constitution and the Law of Succession Act were violated v. Whether the Appellant is entitled to the reliefs sought including revocation of the grant and inclusion as a beneficiary. 9. The Respondent filed written submissions dated 3rd June 2025 raising the following issues for determination: - HCCA NO. E001 OF 2025 7

page 7 of 27

i. Whether the Appellant was a beneficiary or a dependant of the estate of Genson Kinegeni ii. Whether the grant issued in favour of the Respondent on 11th July 2017 should be revoked. ANALYSIS AND DETERMINATION 10. have considered the Appeal, the grounds it is founded upon and the submissions by the parties. I find the following issues for determination: i. Whether the Appellant established that she is a dependant or beneficiary of the deceased within the meaning of Sections 3(2), 3(5) and 29 of the Law of Succession Act and was therefore entitled to be involved in the succession proceedings. ii. Whether the grant of letters of administration issued to the Respondent HCCA NO. E001 OF 2025 8

page 8 of 27

on 11th July 2017 and confirmed on 12 th July 2018 was obtained through concealment of material facts or other grounds contemplated under Section 76 of the Law of Succession Act, thereby warranting revocation by this Court. (i) Whether the Appellant established that she is a dependant or beneficiary of the deceased within the meaning of Sections 3(2), 3(5) and 29 Succession Act and of the was Law of therefore entitled to be involved in the succession proceedings. 11. The Appellant submitted biological child of the supported by the that deceased deceased and she is raised and therefore a a dependant within the meaning of Section 29 (a) of the Law of Succession Act. HCCA NO. E001 OF 2025 9

page 9 of 27

12. She further submitted that the trial court failed to appreciate that all the children of a deceased person, regardless of the nature of the relationship between the deceased and the mother of the child are entitled to equal treatment under succession law as provided for under Article 27 (1) and (4) of the Constitution. 13. In support of her arguments above, she relied on the case of NSA & Another v Cabinet Secretary for Coordination Ministry of National of Interior and Government & Another [2019] eKLR where the court held that within the provisions of Section 3 (2) of the Law of Succession Act any infringement of the right to inheritance for children born out of wedlock would be unconstitutional. 14. The Respondent on her part submitted that the Appellant bore the burden of proving that she HCCA NO. E001 OF 2025 10

page 10 of 27

was a daughter of the deceased and therefore a beneficiary of his estate entitled to benefit from the estate. She relied on the case of Lewis Waruiro v Moses Muriuki Muchiri [2012] CA 106 in regards to the burden of proof. 15. The Respondent further submitted that the Appellant produced a certificate of birth before the trial court which birth certificate does not bear the name of the deceased as her father. She faulted the Appellant’s reliance on the Deed of Indemnity and Release in which she alluded that part of the insurance benefits of the deceased were shared to her by virtue of being a daughter. She contended that neither of those documents illustrate dependency or otherwise beneficial interests as insurance proceeds are not governed by the Law of Succession Act. HCCA NO. E001 OF 2025 11

page 11 of 27

16. To buttress her position, she relied on the case of In Re Estate of Carolyne Achieng Wagah (deceased) where the court held that life insurance policies whether group or personal are governed by the Insurance Act Cap 487, Laws of Kenya. 17. She further submitted that the Appellant was not included as a beneficiary of the estate in the chief’s letter filed in the succession cause. That it is well settled that a letter emanating from the locality in which the deceased was resident is prima facie evidence of the persons being beneficiaries of a particular estate. She relied on the case of In Re Estate of Shem Kitanga [2018] eKLR where Ngugi J (as he was then) held that a succession cause starts with an introduction letter from the chief. HCCA NO. E001 OF 2025 12

page 12 of 27

18. In the present matter, the Appellant sought to establish her status as a child of the deceased through a birth certificate and, more significantly, a Deed of Indemnity and Release executed between the parties following the deceased's death, and under which insurance benefits were shared between the Appellant and the Respondent in the ratio of 60:40. 19. I have looked at the exhibited Birth Certificate. It does not contain the name of the deceased as found by the trial court. It is my view however that the omission of the name is not on its own, fatal to the Appellant's claim. Section 12 of the Births and Deaths Registration Act (Cap 149) historically required that the name of a father of a child born outside marriage be entered in the birth register only upon his consent or joint request with the mother. HCCA NO. E001 OF 2025 13

page 13 of 27

20. The above provision was declared unconstitutional for discriminating against children born out of wedlock and their mothers, and inconsistent with Articles 27, 28 and 53 of the Constitution. The absence of a father's name on a birth certificate of a child born outside marriage may therefore reflect nothing more than the historical absence of consent or a joint registration process, rather than the absence of any biological or social relationship. The trial court, in treating the birth certificate as effectively dispositive of nonparentage, did not give due weight to this reality. 21. With respect to the Deed of Indemnity and Release, I agree with Respondents’ submissions that the same falls under the Insurance Act and that an assured or policy holder has the sole discretion to identify and nominate beneficiaries and their beneficial shares. The Deed however was HCCA NO. E001 OF 2025 14

page 14 of 27

significance in two ways. It disproved that the Appellant was a stranger the Respondent. The Respondent does not dispute that she and the Appellant jointly executed this document and that insurance benefits arising from the deceased's death were shared between them at a ratio of 60:40. 22. Secondly, the Deed shows that there was an agreement that the two beneficiaries named in the Deed being the Respondent and Appellant herein, surrender a percentage of their entitlement to their grandmother, the deceased’s mother. 23. From the above it is difficult to reconcile the Respondent's position that the Appellant is a stranger to the deceased with her own conduct in voluntarily sharing in the proceeds of his death with the Appellant. A reasonable and probable inference from this conduct is that the Respondent HCCA NO. E001 OF 2025 15

page 15 of 27

herself recognised, at the time, that the Appellant had a familial claim arising from her relationship to the deceased; parties do not ordinarily share death benefits with persons who have no connection to the deceased. 24. While the Respondent argues that insurance proceeds fall outside the Law of Succession Act and are governed by the Insurance Act, the relevance of the Deed here is not as proof of a beneficial interest in the insurance proceeds themselves, but as an acknowledgement of an existence of a relationship between the Appellant and the deceased. 25. Having re-evaluated this evidence as a whole, I am persuaded that the Appellant has, on a balance of probabilities, established that she was acknowledged by the deceased and is connected to his estate. HCCA NO. E001 OF 2025 16

page 16 of 27

26. As regards the chief's letter, this Court is alive to the fact that such a letter is, as has been held, a useful introductory document in succession proceedings, but it is not infallible nor conclusive as to the complete family of the deceased. A chief compiling such a letter relies substantially on information volunteered by the person seeking the grant and on his own knowledge of the family within the locality. 27. Where, as is the case here, the alleged relationship involves a child born out of wedlock who may not have resided with the deceased's recognised household, or whose existence may not have been disclosed to the chief by the petitioner, the chief cannot reasonably be expected to have captured that person as having survived the deceased. The omission of the Appellant's name from the HCCA NO. E001 OF 2025 chief's letter is therefore equally 17

page 17 of 27

consistent with an incomplete disclosure to the chief of the Appellant's non-existence as a child of the deceased, and cannot be treated as decisive proof against her claim, particularly where it is contradicted by the Respondent's own subsequent conduct in sharing the insurance proceeds with her. 28. Taking the evidence cumulatively, in particular the conduct reflected in the Deed of Indemnity and Release, together with the limitations inherent in both the Birth Certificate, in light of the historical consent requirement under the former Section 12 of the Births and Deaths Registration Act and the chief's letter as discussed above, I am satisfied that the Appellant has discharged the burden placed upon her under Sections 107 and 109 of the Evidence Act to establish, on a balance of probabilities, that she is a child of the deceased HCCA NO. E001 OF 2025 18

page 18 of 27

within the meaning of Sections 3(2) and 3(5) of the Law of Succession Act and a dependant within the meaning of Section 29 of the Act. 29. Accordingly, I find that the Appellant was a dependant and beneficiary of the deceased and was entitled to be involved in and notified of the succession proceedings concerning his estate. 30. The Appellant submitted that the Respondent presented herself as the sole surviving child and heir of the deceased, fully aware that the Appellant existed and was entitled to benefit, having known of their common paternity. Having found that the Appellant has established her status as a child and dependant of the deceased, this submission must now be assessed against that finding rather than against the trial court's earlier (and now reversed) conclusion that no such relationship was proved. HCCA NO. E001 OF 2025 19

page 19 of 27

31. The Respondent does not deny that she petitioned for the grant on the basis that she was the sole beneficiary of the deceased's estate, nor does she deny her participation in the Deed of Indemnity and Release with the Appellant. Where a person who petitions for a grant has, by her own conduct, treated another individual as having a claim arising from the deceased (as evidenced by the sharing of the insurance proceeds), but thereafter proceeds to petition for and obtain a grant on the representation that she is the sole survivor and beneficiary, without disclosing the existence of that other person to the court or the chief, this amounts to a failure to make a full and frank disclosure of facts material to the proceedings, within the meaning contemplated under Section 76(a) of the Law of Succession Act. HCCA NO. E001 OF 2025 20

page 20 of 27

32. I am guided by the principle that the duty to disclose all persons interested in an estate lies squarely on the petitioner, and that a grant obtained without due regard to that duty, to the prejudice of a person later shown to have a genuine interest, is liable to be revoked or rectified so as to protect that interest. 33. The Appellant relied on the case of In Re Estate of L A K (deceased) [2014] eKLR, where the court revoked a grant on account of beneficiaries having been left out, emphasising that the duty lies on a petitioner to involve all interested parties in the succession process. That principle applies with equal force to the present facts now that the Appellant's status as a dependant has been established. 34. The Respondent's position, that the Appellant did not qualify as a beneficiary or dependant and HCCA NO. E001 OF 2025 21

page 21 of 27

therefore could not sustain a claim of concealment, was the foundation of her opposition to revocation. That position is no longer tenable in light of the finding made above. The authorities she relied on, In Re Estate of Prisca Ong'ayo Nande (deceased) [2020] eKLR and Albert Imbuga Kisigwa v Recho Kavai Kisigwa [2016] KEHC 158 (KLR), remain good law for the proposition that the power to revoke a grant is discretionary and must be exercised judiciously and only on sound grounds; the question is whether sound grounds exist on the facts as now found, and for the reasons set out above, I find that they do. 35. I have reconsidered the finding made under the preceding issue, namely that the Appellant did establish, on a balance of probabilities, that she was a child, dependant and beneficiary of the deceased within the meaning of Sections 3 and 29 HCCA NO. E001 OF 2025 22

page 22 of 27

of the Law of Succession Act. That finding is central to the question of revocation, because it removes the basis on which the trial court declined to find concealment. Where a petitioner is shown to have had a relationship with, or knowledge of, another person with a claim on the estate, and proceeds to obtain a grant without disclosing that person's existence to the court, this constitutes the concealment of a material fact within the meaning of Section 76(a) of the Act. 36. I have examined the record before the trial court afresh in light of this finding. The Respondent petitioned for the grant on the representation that she was the sole survivor and beneficiary of the deceased, relying on a chief's letter that, for the reasons set out above, cannot be treated as conclusively excluding the Appellant. Read together with the subsequent execution of the HCCA NO. E001 OF 2025 23

page 23 of 27

Deed of Indemnity and Release sharing insurance proceeds with the Appellant, I find that there is sufficient material to conclude that the grant was obtained without full disclosure of a material fact, namely the existence of the Appellant as a person interested in the estate. 37. The power to revoke a grant under Section 76 of the Law of Succession Act is discretionary and ought to be exercised judiciously upon proof of the statutory grounds. In Matheka and Another v Matheka [2005] eKLR, the Court of Appeal held that an applicant seeking revocation must strictly bring herself within the grounds set out under Section 76 of the Act. I am satisfied that the Appellant has done so in this case, having demonstrated both her status as a dependant of the deceased and the non-disclosure of that status at the time the grant was obtained and confirmed. HCCA NO. E001 OF 2025 24

page 24 of 27

38. Having re-evaluated the evidence on record and the applicable law, I am persuaded that the grant issued to the Respondent on 11th July 2017 and confirmed on 12th July 2018 was obtained through concealment of a material fact, namely the existence of the Appellant as a dependant of the deceased, contrary to Section 76(a) of the Law of Succession Act. I find that the trial court erred in declining to revoke the grant on this basis. 39. As I pen off, I observe that the chief’s introductory letter categorically stated that the Respondent was “the only legal dependent of the deceased’s estate.” It made no reference to the mother or any other surviving family member leaving a lacuna in information. 40. In the end, the Appeal succeeds and is hereby allowed in the following terms: HCCA NO. E001 OF 2025 25

page 25 of 27

i. The ruling of the trial court dated 13th February 2024 is hereby set aside. ii. The grant of letters of administration issued in Succession Cause No. 56 of 2017 to the Respondent stands. (iii).The confirmed grant is revoked. (iv). The matter is remitted back to the trial court for the Respondent (Administrator) to file fresh summons for confirmation with a new schedule of distribution which includes the Appellant’s beneficial interest. v. Each party shall bear its own costs of the appeal. Orders accordingly. Judgement delivered, dated and signed at Chuka this 30th day of June, 2026. .......................... HCCA NO. E001 OF 2025 26

page 26 of 27

R. LAGAT-KORIR JUDGE Judgement delivered in the presence of Ms. Mbugua for the Appellant; and Mr. Kinyua for the Respondent; Muriuki (Court Assistant.) HCCA NO. E001 OF 2025 27

page 27 of 27