Lwm (suing As A Guardian and Next Friend of Smk (minor)) v Grace Wairimu Kanjigi

c. The learned magistrate erred in law and fact in finding that the minor SMK was not a child of the deceased despite the birth certificate bearing the name of the deceased as his father, which was capriciously referred to as unreliable despite being obtained while the deceased was alive. d. The learned magistrate erred in law and fact in failing to order a DNA test if she had doubts about the paternity of the minor, as justice is best served by proof, and the trial court had discretion to suo moto order a DNA test. e. The learned magistrate erred in law and fact in dismissing the summons for revocation of grant dated 5.10.2023 effectively disinheriting the Appellant and SMK. f. The trial court erred in fact and in law in misinterpreting section 76 of the Law of Succession Act despite clear evidence of wrongdoing on the side of the administrator who filed a succession case in Nyeri instead of Mũkũrwe-inĩ, hiding proceedings from the appellant whose names appeared in the Chief’s letter. Pleadings 4. By a summons dated 13.07.2023 and filed in the lower court, the Respondent sought the following reliefs: a. 5. The summons was premised on the grounds on the face of it expounded and supported through the sworn affidavit of the Respondent dated 13.7.2023. By the said Affidavit, it was deposed as follows: a. b. c. 6. The Grant of Letters of Administration made to Grace Wairimu Kanjigi on 18.1.2023 be confirmed, and the estate be divided in terms of the annexed proposed mode of distribution. The Deceased was survived by the following dependants and children: i. Grace Wairimu Kanjigi - widow ii. Michael Gachanja Kanjigi – son iii. Anthony Thuku Kanjigi – son iv. Florence Njeri Kanjigi - daughter v. John Kibe Kanjigi - son The assets owned by the deceased were as follows: i. Naromoru/Naromoru/Block xx/xx ii. Royal Bar & Restaurant located on Plot No. xx, Naromoru iii. Plot No. xx excised from LR No. xxxx iv. Title No. Laikipia/Daiga Umande/Block xxxx Nyariginu The said property was proposed to be registered and transferred in the sole name of the Respondent absolutely. The Appellant on her part filed the summons for revocation of the grant dated 7.10.2023 by which she sought the following reliefs: i. The court be pleased to revoke the grant of letters of administration issued to Grace Wairimu Wanjigi on 18.1.2023 and confirmed on 5.10.2023. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12499/eng@2026-07-30 2

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ii. 7. 8. 9. The Court be pleased to appoint the Appellant and Grace Wairimu Wanjigi as coadministrators and a fresh grant to issue. The summons for revocation was based on the grounds on its face and the affidavit of the Appellant of the same date as well as the supplementary affidavit dated 8.xx.2023 by which it was materially deponed as follows: a. The proceedings leading to the grant were defective for noncompliance with Rule 26 and 40 of the Probate and Administration Rules. b. The grant was obtained fraudulently by making a false statement or concealment of material that the deceased was polygamous. c. The Appellant as 2nd wife was entirely excluded from the estate. d. The union between the deceased and the Appellant was blessed with a child SMK who was left out. e. The Appellant was living with the deceased since 2002 and the Respondent had deserted the deceased in 2013 only returning in 2022. f. The Respondent had left out LR No. Naromoru/Thiamathage/Block xxxx, Plot No. Bxxxx – Dandora Phase 2 and the shares in Kengen, Safaricom, Cooperative Bank and Mumias Sugar Company Limited. g. The Appellant co-signed a lease for Royal Bar and Restaurant, which also confirmed that the Appellant was the second wife of the deceased. h. The Appellant took care of the deceased until his demise. i. The deceased gave him the name and took parental responsibility of the minor, SMK. The Respondent filed a Replying Affidavit dated 3.xx.2023 by which it was deposed in material thus: a. The Respondent was the sole widow of the deceased married in 1987. b. In 2020, the deceased visited her parents’ home for dowry. c. The deceased introduced the Appellant to her as a bar attendant and his employee in 2018. d. The Appellant was a minor when she allegedly married the deceased. e. The chief, Gakindu location, did not register marriages. f. The eulogy was not proof of marriage. g. The Appellant’s son was named after the Appellant’s father, and not the deceased’s father, and so is not the child of the deceased. h. The Appellant forcefully acquired original documents by accessing the deceased’s house. i. The Appellant never raised any objection to the grant after publication in the Kenya Gazette. The Appellant testified as PW1. She relied on the supporting affidavit to the summons for revocation of grant dated 7.10.2023 and the supplementary affidavit dated 8.xx.2023. According to her, she lived on the parcel of land owned by her deceased husband. She got married to the deceased in 2002. They were blessed with a child known as SMK. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12499/eng@2026-07-30 3

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10. She testified that the chief recognised her as wife in the chief’s letter. She proposed that each person should get an equal share in the estate. On cross-examination, she stated that she was born in 1986. She got married in 2002, not 2008. She was 16 years old then. She agreed to be married to the deceased after the child was born. The child was supposed to be named after the deceased’s father. She went to Huduma Centre with the deceased. They agreed to change the child's name from her father’s name to his father’s name. The child was born in June 2010. The deceased paid dowry in 2020. He bought sodas for the elders and paid Ksh. 20,000/=. She was not employed by the Respondent. They entered into an agreement with the Respondent. She lived in Plot No. xx/xx Naromoru. The deceased also took a goat to her home. 11. The Respondent also testified as DW1. She relied on her affidavit dated 3.xx.2023. The Appellant was not her co-wife. She was employed by the deceased at his bar at the time he died. She testified that she was coerced to record the lease agreement. The plot in Nairobi was given to the Respondent’s son. She bought plot xx/xx with the deceased in 1998. xx. In cross-examination, it was her case that she was married to the deceased in 1987. They visited her parents in 1997. Two goats were taken. In 2020, the final dowry was paid. The Appellant was an employee who had remained on the property. There was no funeral committee in Mũkũrwe-inĩ. The committee was in Naromoru. The Appellant prepared the obituary. She, together with the Appellant took the deceased to hospital. 13. The lower court considered the matter and rendered its judgment finding that the Appellant had not proved that together with her son, they were a wife and son of the deceased as to be dependants. Aggrieved, the Appellant lodged a Memorandum of Appeal, hence this appeal. Submissions 14. The Appellant filed submissions dated 11.3.2026. It was submitted that the Appellant and the minor were dependants of the deceased. Reliance was placed on Section 3(5) of the Law of Succession Act that provides as follows: “ Notwithstanding the provisions of any other written law, a woman married under a system of law which permits polygamy is, where her husband has contracted a previous or subsequent monogamous marriage to another woman, nevertheless a wife for the purposes of this Act, and in particular sections 29 and 40 thereof, and her children are accordingly children within the meaning of this Act.” 15. It was also submitted that the deceased and the original Appellant clearly lived together and had a child together bearing his father’s name on his surname and clearly the deceased and herself presented themselves as husband and wife to the public as demonstrated by the various exhibits such as a lease agreement signed by both wives, the deceased’s eulogy and burial permit plus the birth certificate for the minor. Reliance was placed on In re Estate of Heinz Ostertag (Deceased) [2022] KEHC 16661 (KLR), quoting the case of Phylis Njoki Karanja & two others v Rosemary Mueni Karanja & another (2009) eKLR where the Court of Appeal, Madan J stated thus: The concept of presumption of marriage is not new in Kenya. It was recognised by the former Court of Appeal in Hortensiah Wanjiku v Public Trustee in Civil No 13 of 1976 and by this court in Mbithi Mulu & another v Mitwa Mutunga in Civil Application Number Nai.17 of 1983. This presumption arises from long cohabitation and repute between the man and the woman who have capacity to marry and have consented to do so-see (supra). We consider that the deceased and the 1st Respondent in this appeal had capacity to marry while the deceased was married to the 2nd appellant under Kikuyu https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12499/eng@2026-07-30 4

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customary law, but this was not a bar to him marrying any other woman since customary law of marriages under Kikuyu customs are potentially polygamous. 16. Therefore, the Appellant submitted that the summons for revocation of the grant was merited as the grant was obtained fraudulently by the making of a false statement or by the concealment from court of something material to the case, particularly in relation to the Estate of the deceased. She cited inter alia In re Estate of Prisca Ong’ayo Nande (Deceased) [2020] eKLR. 17. It was submitted that lack of involvement of the original Appellant and her child in these succession proceedings offend Rules 26(2) & 40(8) of the Probate and Administration Rules 1980. 18. The Respondent, on her part, also filed submissions dated 4.5.2026. It was submitted for the Respondent that her child had not proved that they were the wife and son of the deceased. Reliance was placed on Section 11(1)(a) of the Marriage Act Cap 150 that “A union is not a marriage if at the time of the making of the union, either party is below the minimum age for marriage.” 19. Reliance was heavily placed on in re Estate of GOR (Deceased) (Succession Cause 257 of 2017) [2023] KEHC 25658 (KLR) (Family) (17 November 2023) (Judgment) Neutral citation: [2023] KEHC 25658 (KLR) based on which it was submitted the court observed thus: “ All the court hears are vague statements that dowry was paid. This will not suffice to prove a Luo Customary Marriage. The Chief PW4 merely wrote letters according to what he was told. He was not a reliable witness at all as he seems to have had no personal knowledge regarding the personal life of the Deceased.” 20. It was further submitted that the minor was not a child or dependant of the deceased. She relied on the dictum in re Estate of GOR (supra) thus: 56) Section xx of the Births and Deaths Registration Act Cap 149, Laws of Kenya provides that: No person shall be entered in the Register as the father of any child except at the joint request of the father and mother of upon the production to the Registrar of such evidence as he may require that the father and mother were married according to law or in accordance with some recognized customs. 57) The Deceased was not married to ‘RA’. There is no document or indeed any proof that the Deceased consented to the use of his name in the Birth Certificates of the two (2) children. The Birth Certificates in question were issued after the death of the Deceased and were mysteriously placed in the file of the Deceased at Kenyatta University. More questions than answers arise. 58) In the matter of Kamau Muigai (Deceased) (2018) eKLR, Hon. Justice Musyoka, facing a similar situation, held as follows: 5 21. “Regarding the second Applicant, there is a Birth Certificate on record that places the name of the late son of the Deceased on record as her father. The family claims that she was not related to them as she was not introduced as such. The Certificate was obtained before the alleged father died. I am, however, alive to the fact that a certificate of Birth is not adequate proof of paternity… It was also submitted that the existence or otherwise of a marriage between the Respondent’s mother and the deceased did not affect their nature as children of the deceased. They cited Re in the Matter of the Estate of JCG and Section 3(2) of the Law of Succession Act on presumption of marriage. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12499/eng@2026-07-30 5

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22. It was also submitted that under Section 29, the Appellant was under a duty to adduce evidence to show that the deceased had indeed taken in the son of the Appellant and was providing for them as his child. Analysis 23. The Appellant herein was substituted after the demise of Agnes Wangari Mwangi, who was the initial Appellant herein and Applicant in the lower court. The issue for determination is whether the lower court erred in its finding that Agnes Wangari Mwangi and her son, SMK, were not respectively the wife and child of the Deceased and therefore dependants under Section 29 of the Law of Succession Act. 24. On dependants, the Law of Succession Act (Cap 160 Act defines who is a dependant at Section 29 as follows:- 25. “ (a) The wife or wives, or former wife or wives, and the children of the deceased whether or not maintained by the deceased immediately prior to his death; (b) such of the deceased’s parents, step-parents, grand-parents, grandchildren, step-children, children whom the deceased had taken into his family as his own, brothers and sisters, and half-brothers and half-sisters, as were being maintained by the deceased immediately prior to his death; and (c) Where the deceased was a woman, her husband if he was being maintained by her immediately prior to the date of her death." Therefore, in order to prove dependency under Section 29, Agnes Wairimu Mwangi was under a duty to adduce evidence to show that she was the second wife and the deceased was also the father of her son. On this subject, Section 107(1) of the Evidence Act, Cap 80 Laws of Kenya provides that: "Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist." 26. The burden was on the party that asserted the affirmative of the issue. In Anne Wambui Ndiritu –vsJoseph Kiprono Ropkoi & Another [2005] 1 EA 334, the Court of Appeal held that: “ As a general proposition under Section 107 (1) of the Evidence Act, Cap 80, the legal burden of proof lies upon the party who invokes the aid of the law and substantially asserts the affirmative of the issue. There is, however, the evidential burden that is cast upon any party to prove any particular fact which he desires the court to believe in its existence, which is captured in Sections 109 and 1xx of the Act.” 27. The question then is what amounts to proof on a balance of probabilities. Kimaru, J in William Kabogo Gitau –vs- George Thuo & 2 Others [2010] 1 KLE 526 stated that: “ In ordinary civil cases, a case may be determined in favour of a party who persuades the court that the allegations he has pleaded in his case are more likely than not to be what took place. In percentage terms, a party who is able to establish his case to a percentage of 51% as opposed to 49% of the opposing party is said to have established his case on a balance of probabilities. He has established that it is probable than not that the allegations that he made occurred.” https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12499/eng@2026-07-30 6

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28. The Appellant maintained that she had cohabited with the deceased since 2002 when she was 16 years old. Dowry was paid in 2020. She had her son with the deceased in 2010. The Respondent, on the other hand, maintained that she and her 4 children were the rightful heirs of the deceased. It was not a contested fact that the Respondent was the wife of the deceased and her children were the children of the deceased, and the court will not delve into this aspect. 29. In determining the issue as to who a child of the deceased would mean, the starting point is the definition of ‘child’ or ‘children’ under the Law of Succession Act. Section 3(2) of the said Act stipulates as follows: “ (2 )References in this Act to "child" or "children" shall include a child conceived but not yet born (as long as that child is subsequently born alive) and, in relation to a female person, any child born to her out of wedlock, and, in relation to a male person, any child whom he has expressly recognized or in fact accepted as a child of his own or for whom he has voluntarily assumed permanent responsibility.” 30. The Appellant adduced a birth certificate for SM. This was to prove that this was a child of the deceased. The court has keenly perused the said document as produced by the Appellant. The certificate of birth was registered on 30.7.2010 and issued on 14.3.2018. It bears the name of the deceased as father of the child. Section xx of the Births and Deaths Registration Act Cap 149, Laws of Kenya provides that:“ No person shall be entered in the Register as the father of any child except at the joint request of the father and mother of upon the production to the Registrar of such evidence as he may require that the father and mother were married according to law or in accordance with some recognised customs” 31. There was no evidence presented from which the court would discern that the entry of the name of the deceased on the certificate of birth was unlawful or without the knowledge or consent of the deceased. The circumstances of this case placed the Appellant in the residence of the deceased. Whereas the case of the Respondent was that the naming of the minor did not follow the pattern customarily known to apply to the Agikuyu, to this court, this cannot be any fault of the minor. 32. Be it an omission by the registering entity or on the part of the Appellant, it could not disadvantage the child. Moreover, the certificate of birth could not hold if proved alongside other evidence. A certificate of birth, even though a proper one, is not adequate proof of paternity. In the matter of Kamau Muigai (Deceased) (2018) eKLR Hon. Justice Musyoka, facing a similar situation, held as follows: “ Regarding the second Applicant there is a Birth Certificate on record that places the name of the late son of the Deceased on record as her father. The family claims that she was not related to them as she was not introduced as such. The Certificate was obtained before the alleged father died. I am, however, alive to the fact that a certificate of Birth is not adequate proof of paternity….” 33. The Respondent was under a duty to present evidence to discredit the certificate of birth or that the name of the deceased was implanted on the certificate in order to create a succession advantage as opposed to being really a child of the deceased. This did not happen. Indeed, there was no evidence led at all to show that, in any case, the deceased did not recognize the child as his or that there was a dispute as to paternity between the deceased and the appellant. Indeed as a document, it can only be impeached https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12499/eng@2026-07-30 7

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by other documents. In Fidelity & Commercial Bank Ltd V Kenya Grange Vehicle Industries Ltd (2017)eKLR, the Court of Appeal, Ouko, Kiage and Murgor JJA held as doth;“ Courts adopt the objective theory of contract interpretation, and profess to have the overriding aim of giving effect to the expressed intentions of the parties when construing a contract. This is what sometimes is called the principle of four corners of an instrument, which insists that a document's meaning should be derived from the document itself, without reference to anything outside of the document (extrinsic evidence), such as the circumstances surrounding its writing or the history of the party or parties signing it. 34. In Gerald Dworkin, Odgers' Construction of Deeds and Statutes (5th edn, Sweet & Maxwell 1967), the learned author at p. 106 states as follows: “ Parol Evidence and written documents. It is a familiar rule of law that no parol evidence is admissible to contradict, vary or alter the terms of a deed or any written instrument. The rule applies as well as deeds as to contracts in writing. Although the rule is expressed to relate to parol evidence, it does in fact apply to all forms of extrinsic evidence. As it stands this is not a rule of interpretation but of law, and means that the interpretation of the document must be found in the document itself with the addition if necessary of such evidence as we have previously seen is admissible for explaining or translating words and expressions used therein” 35. A vain wish that the certificate is not genuine does not help anyone. The contents of the birth certificate are enough to prove paternity of the minor, in the absence of contestation by the deceased during his lifetime. It is vain hope and pedantry to declare the co-wife a barmaid for purposes of succession. One question that lingers in my head, why will a husband, as way back as 2018, introduce a barmaid to his house? 36. Secondly, adequate evidence was adduced that when the deceased died, the two women took her to hospital and cosigned the burial permit. Further, there were no adequate funds to bury the deceased. This necessitated leasing of one of the deceased’s businesses, that is, the bar. They jointly signed. The postulation that she was a worker is not plausible. It is insulting to the intelligence of the people listening and abhorrent at best. The respondents remind me of the lamentations by Odunga J, as he then was, in Kioko Peter v Kisakwa Ndolo Kingóku [2019] KEHC 11387 (KLR): 4…. parties and Counsel ought to give the court’s some credit that the courts are not manned by morons who can be easily duped into believing all manner of incredible stories with little or no iota of truth. It is these kinds of allegations that Madan, J (as he then was) had in mind when in N vs. N [1991] KLR 685 he expressed himself in the following terms: “ I wish people would not tell me absurd and unbelievable lies. I feel disappointed if a lie told in court is not reasonable imitation of the truth and is not reasonably intelligently contrived. I wish people who tell lies before me would respect my grey hair even if they consider that my intelligence is not of high order. I wish the witness had not told me the most stupid of his lies, which both disappointed and made me feel intellectually insulted.” https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12499/eng@2026-07-30 8

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5. In the South African case of Matatiele Municipality & Others vs. President of the Republic of South Africa & others (1) (CCT73/05) (2006) ZACC 2: 2006 (5) BCLR (CC); 2006(5) SA 47 (CC) it was held that “ In my view, a person who deliberately, either by commission or omission, misleads the court and the public that a particular state of affairs exists while knowing very well that that is not the position cannot be said to be open, candid and transparent. Dishonest in my view is an Act which is antithesis to transparency and vice versa…” 37. I am persuaded that the deceased had stayed in Naromoru and was attended to by the Appellant at his hour of death. She called the Respondent, and they together took the deceased to Tumutumu Hospital. The Appellant also produced school fees receipts, including the receipts depicting fees paid for the minor as well as some of the children of the Respondent. She also had some title documents. 38. Whereas the Respondent’s case was that the Appellant broke into the house of the deceased and obtained such documents unlawfully, this was a mere suggestion without a scintilla of evidence, a police report, or a case. The truth of the matter is that the Appellant had access to the house of the deceased. They still stay at the deceased’s property in Naromoru. 39. This leads me to the next issue, that of the relationship between the deceased and the Appellant. The Appellant’s case was that she cohabited with the deceased since 2002. The Respondent’s case was that the Appellant was merely an employee of the deceased. The burden was on the Appellant to prove customary marriage. The Appellant appeared to hinge on dowry payment as a ground for her to be taken as wife. Dowry was said to have been paid in 2020. Before delving into dowry, I will tackle the question of presumption of marriage. 40. The chief’s letter, which was never impeached, showed that the original Appellant, now deceased, was a widow of the deceased herein. Secondly, they co-signed for the body at the mortuary. The family prepared a eulogy and presented it to the members of the public that the original Appellant, now deceased, was a widow of the deceased. The 4 children born of the respondent and the child of the original Appellant, now deceased, were listed as children. 41. It is not lost that the original Appellant, now deceased, had custody of all the deceased’s documents, including the burial permit and original title deeds. The totality of the evidence on record is that, the deceased treated and took the original Appellant, now deceased and her child as a wife and child; she was staying with him up to the time of his demise. Therefore, the respondent was dishonest in purporting that she was the only wife. 42. One aspect of the evidence that remained uncontroverted was that the Respondent disappeared for a considerable period and only resurfaced in 2022, when the deceased was on his sick bed. This provides the only plausible explanation for her limited involvement in the deceased's care and the burial arrangements, notwithstanding her assertions to the contrary. It was further not disputed that the original Appellant, now deceased, raised the Respondent's last-born child, Dylan. 43. She also signed a lease for the deceased’s land for burial expenses. This brings us to proof of presumption of marriage. The Supreme Court settled the law of presumption of marriage in MNK v POM & another [2023] KESC 2 (KLR) as follows: The presumption of marriage encompassed two essential elements: the parties must have had the legal capacity to marry, and they must have, in effect, contracted such a marriage. Where one party was already in a subsisting marriage, they lacked capacity to enter into a new marriage until the prior marriage had been lawfully dissolved or terminated by death. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12499/eng@2026-07-30 9

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The strict requirements for a presumption of marriage were as follows: 1. Parties must have cohabited for a long duration; 2. Parties must have had the legal capacity to marry; 3. Parties must have intended to marry; 4. There must have been mutual consent to the marriage; 5. Parties must have held themselves out publicly as married; 6. The burden of proving the presumption lay on the party alleging it; 7. Evidence rebutting the presumption had to be strong, distinct, satisfactory, and conclusive; 8. The standard of proof was on a balance of probabilities. Marriage in Kenya bears significant traditional, religious, economic, social, and cultural meaning. Nonetheless, it is increasingly common for adults to cohabit without intending to marry. Such relationships may be interdependent yet deliberately outside the confines of matrimony, reflecting contemporary social realities. 44. She needed to prove capacity to marry and a long stance of cohabitation with evidence of property together or a child or children. There was a child born in 2010, more than 10 years before the demise of the deceased. The chief appears to have listed property and beneficiaries according to what the person applying, in this case the Appellant, instructed. The court finds that the Appellant could not have cohabited with the deceased for more than 20 years since 2002 without being involved in the life of the family and friends of the deceased who could testify on the existence of a marriage. The family sealed this in the publicly displayed eulogy and the sharing of responsibilities. 45. Even though the Appellant’s case was that the court ought to have ordered a DNA test suo moto, the court appreciated that such a test would be the better option to prove paternity but found that even without a paternity test, extrinsic evidence would be used to found paternity. In the matter of The Estate Of Peter Muray Chege Alias Muraya Chege (2019) eKLR Hon. Justice A. K. Ndungu held that:“ In this time and age of considerable scientific discovery, development and achievement, where a dispute arises as to the paternity of an individual, there is no better way to settle that issue with finality than through a dependable DNA test”. 46. In any event, it is the Appellant who alleged that the minor was a son of the deceased and who bore the burden of proof. The Court of Appeal in the case of Mbuthia Macharia v Annah Mutua & another [2017] eKLR discussed the burden of proof and stated thus:The legal burden is discharged by way of evidence, with the opposing party having a corresponding duty of adducing evidence in rebuttal. This constitutes evidential burden. 47. Therefore, proof of paternity of a child was not to be pegged merely on the basis of names as customarily given. To the contrary, documentary or circumstantial evidence was crucial. The coincidence of names alone was inadequate. It was upon the Appellant to demonstrate how she related with the deceased during his time. This would categorise them under Section 29 of the Law of Succession Act. To this court, indeed she satisfied this burden. She was staying with or at least visited the deceased in Naromoru, where the deceased had also put up. The Respondent, on the other hand, lived in Mũkũrwe-inĩ. Such circumstances, justified the reason the deceased was named as father of the minor on the certificate of birth issued on 14.3.2018. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12499/eng@2026-07-30 10

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48. Even though the school receipts that the Appellant adduced did not name the deceased as the person who paid fees for the minor, there was also no evidence of any dispute as to paternity or maintenance of the minor during the lifetime of the deceased. What the Respondent appeared to suggest was that the Appellant used the monies she obtained from the deceased to pay fees for the minor. The minor was said to be in class five. The deceased’s name appeared on his certificate of birth, and without any evidence of neglect, the court is entitled to find that the deceased and the Appellant collaborated well in the payment of the minor’s school fees. As was held in re Estate of David Omare Kimori (Deceased) (Succession Cause 4 of 2020) [2023] KEHC 23286 (KLR) (28 September 2023) (Judgment): There was no tangible evidence adduced to prove that the deceased paid the school fees for the said children, when their father was available and known. There is no evidence that the deceased took up the parental responsibility of the three children exclusively or even attempted to adopt the children of Livingstone Nyaribo who is well and alive and there is no evidence that Livingstone Nyaribo relinquished his parental responsibility towards the said children. If anything, the 1st objector was bound by law to seek for the children’s maintenance from their biological father since the deceased never sought consent of their biological father to be their guardians or to adopt them as his own. There being no evidence that the deceased assumed parental responsibility over the objector’s children inn as much as they may have been fond of him and that they had moved in his house with their mother… … Accordingly, I am not satisfied that the 2nd – 4th Objectors quality to be the deceased’s dependants. I reject their proposition and further find that for that very reason, they are legally not entitled to inherit from his estate. 49. The court finds that the appellant, the original Appellant, now deceased, was the wife of the deceased. She was entitled to inherit. 50. This leaves the issue of costs, which is governed by Section 27 of the Civil Procedure Act, which provides as follows: 51. (1) Subject to such conditions and limitations as may be prescribed, and to the provisions of any law for the time being in force, the costs of and incidental to all suits shall be in the discretion of the court or judge, and the court or judge shall have full power to determine by whom and out of what property and to what extent such costs are to be paid, and to give all necessary directions for the purposes aforesaid; and the fact that the court or judge has no jurisdiction to try the suit shall be no bar to the exercise of those powers: Provided that the costs of any action, cause or other matter or issue shall follow the event unless the court or judge shall for good reason otherwise order. (2) The court or judge may give interest on costs at any rate not exceeding fourteen per cent per annum, and such interest shall be added to the costs and shall be recoverable as such. Costs are generally discretionary. However, the discretion is not arbitrary. The Court of Appeal in the case of Farah Awad Gullet v CMC Motors Group Limited [2018] KECA 158 (KLR) had this to say: “ It is our finding that the position in law is that costs are at the discretion of the court seized up of the matter with the usual caveat being that such discretion should be exercised judiciously meaning without caprice or whim and on sound reasoning secondly that a court can only withhold costs either partially or wholly from a successful party for good cause to be shown." 52. The Supreme Court set forth guiding principles applicable in the exercise of that discretion in the case of Rai & 3 others v Rai & 4 others [2014] KESC 31 (KLR), as follows: https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12499/eng@2026-07-30 11

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18. It emerges that the award of costs would normally be guided by the principle that “costs follow the event”: the effect being that the party who calls forth the event by instituting suit, will bear the costs if the suit fails; but if this party shows legitimate occasion, by successful suit, then the defendant or respondent will bear the costs. However, the vital factor in setting the preference, is the judiciously-exercised discretion of the Court, accommodating the special circumstances of the case, while being guided by ends of justice. The claims of the public interest will be a relevant factor, in the exercise of such discretion, as will also be the motivations and conduct of the parties, prior-to, during, and subsequent-to the actual process of litigation. 22. Although there is eminent good sense in the basic rule of costs - that costs follow the eventit is not an invariable rule and, indeed, the ultimate factor on award or non-award of costs is the judicial discretion. It follows, therefore, that costs do not, in law, constitute an unchanging consequence of legal proceedings - a position well illustrated by the considered opinions of this Court in other cases. The relevant question in this particular matter must be, whether or not the circumstances merit an award of costs to the Applicant. 53. The circumstances of the case demand that each party shall bear her own costs. 54. The net effect of the foregoing is that the appeal is allowed. The application dated 05.10.2023, filed by the original Appellant (now deceased), is hereby allowed. The judgment of the lower court is set aside in its entirety. In its place, this Court finds that the Respondent obtained the grant of representation fraudulently. Consequently, the grant of letters of administration issued on 18.01.2023 and confirmed on 22.09.2025 is hereby revoked. 55. It is hereby declared that the original Appellant, now deceased, was the lawful wife of the deceased and was entitled to inherit from his estate. It is hereby declared that the minor herein, SMK, is a child of the deceased and is entitled to benefit from the estate. Therefore, for purposes of succession, the beneficiaries of the estate herein are: a. Grace Wairimu Kanjigi – First widow; b. Agnes Wangari Mwangi (deceased) – Second widow c. Michael Gachanja Kanjigi – Son d. Anthony Thuku Kanjigi – Son; e. Florence Njeri Kanjigi – Daughter; f. John Kibe Kanjigi – Son; and g. SMK – Son 56. A fresh grant of letters of administration shall issue to the substituted Appellant and one other suitable paternal relative, to be agreed upon by the parties or, in default of agreement, appointed by the court. The two administrators shall hold SMK's entitlement in trust until he attains the age of majority. The first house shall equally pick two persons to be appointed administrators from their house. It is directed that, in the fresh grant, the estate shall be distributed into seven (7) equal shares, with SMK receiving his own share together with the share that would have devolved upon his late mother, Agnes Wangari Mwangi. 57. The shares held by the deceased herein in the named companies shall be divided equally between the Respondent and SMK, the latter taking the portion attributable to the late Agnes Wangari Mwangi. Upon subdivision of the immovable property, the portion of land upon which the deceased resided https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12499/eng@2026-07-30 12

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with the late Agnes Wangari Mwangi shall be allocated to SMK as part of his own entitlement and that devolving through his late mother. 58. The administrators shall, within 60 days of appointment, file summons for confirmation of the fresh grant. In the proposed distribution, the first house of Grace Wairimu Kanjigi shall retain five (5) of the seven (7) shares, subject to Grace Wairimu Kanjigi's life interest in accordance with section 35 of the Law of Succession Act, while SMK shall receive the remaining two (2) shares, to be held in trust until he attains the age of majority. Determination 59. In the upshot, I make the following orders: a. The appeal is hereby allowed. The application dated 05.10.2023, filed by the original Appellant (now deceased), is hereby allowed. The judgment of the lower court is set aside in its entirety. In its place, this Court finds that the Respondent obtained the grant of representation fraudulently. Consequently, the grant of letters of administration issued on 18.01.2023 and confirmed on 22.09.2025 is hereby revoked. b. It is hereby declared that the original Appellant, now deceased, was the lawful wife of the deceased and was entitled to inherit from his estate. c. It is hereby declared that the minor herein, SMK, is a child of the deceased and is entitled to benefit from the estate. d. The court shall appoint new administrators, including the appellant and another paternal relative who shall hold the properties in trust for the minor SMK together with the deceased appellant. The first house shall appoint two administrators in addition to the two appointed by the court on the request of the appellant herein. e. The administrators shall, within 60 days of appointment, file summons for confirmation of the fresh grant. In the proposed distribution, the first house of Grace Wairimu Kanjigi shall retain five (5) of the seven (7) shares, subject to Grace Wairimu Kanjigi's life interest in accordance with section 35 of the Law of Succession Act, while SMK shall receive the remaining two (2) shares, to be held in trust until he attains the age of majority. f. The sharing of the estate shall have regard to the directions given in the body of the judgment. g. Each party will bear its own costs. DELIVERED, DATED AND SIGNED AT NYERI ON THIS 30TH DAY OF JULY THE YEAR OF OUR LORD TWO THOUSAND AND TWENTY-SIX Ruling delivered through Microsoft Teams Online Platform KIZITO MAGARE JUDGE In the presence of: Mr. Mbau for the Appellant Mr. Okoth for the Respondent Court Assistant – Timothy M. D. KIZITO, J. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12499/eng@2026-07-30 13

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