In re Estate of Ashby Musila Muia (Deceased) [2023] KEHC 19395 (KLR)

In re Estate of Ashby Musila Muia (Deceased) (Succession Cause 451 of 2017) [2023] KEHC 19395 (KLR) (29 June 2023) (Judgment)

Neutral citation: [2023] KEHC 19395 (KLR)

Republic of Kenya

In the High Court at Kisumu

Succession Cause 451 of 2017

RE Aburili, J

June 29, 2023

Between

Loice Atieno Oduk

Applicant

and

Josephat Mwania Muia

1st Respondent

Brian Mwema Masila

2nd Respondent

Judgment

1. The applicant Loice Atieno Oduk filed the instant application dated 10th July 2017 seeking annulment of the grant issued to the 1st respondent on the grounds that the grant was obtained fraudulently by making false statements.

2. The applicant further sought an order to compel the 1st respondent Josephat Mwania Muia to produce to court a full and accurate inventory of the assets and liabilities of the deceased’s estate as well as an account of all dealings therewith. The applicant further sought leave to petition for letters of administration to the deceased’s estate.

3. The application was supported by the grounds on its face as well as the supporting affidavit of Loice Atieno Oduk, the applicant herein.

4. The applicant gave viva voce evidence as OW1. It is the applicant’s case that she was married to the deceased having begun cohabiting in 2008 with the deceased paying dowry in 2011 and the couple solemnizing their marriage on the 15th May 2014. She further averred that they had three children, one that she had got prior to the marriage, one from the deceased’s previous marriage and the last that they got in the course of their marriage.

5. The applicant further averred that the 1st respondent intentionally omitted parcels/plots of land that the deceased owned in his application for grant. It was the applicant’s case that the deceased was the owner of Land Parcel No. Kisumu/Kanyakwar “A”/403 wherein he had built four rental houses and Land Parcel Number Kisumu/Korando/4933.

6. The applicant further averred that the application for grant of probate made by the 1st respondent was dated 6th January 2016 way before the deceased’s demise and further that the deceased did not write any will as in October 2014 when the will produced by the 1st respondent was allegedly written; the deceased was suffering from memory loss.

7. It was the applicant’s case that the 1st respondent was mismanaging the deceased’s estate by collecting money from the deceased’s business premises in exclusion of the deceased’s other beneficiaries.

8. In response, the 1st respondent filed an affidavit in opposition to the instant application dated 4th June 2018 and also testified as PW1 in which he asserted that the deceased was a widower and was only survived by his son Brian Muema Masila. It was his case that the applicant was married to one Zablon Opondo Otiende whom she got married to in 1995, which marriage brought forth one child.

9. The 1st respondent averred that having been lawfully married to Zablon Opondo Otiende, the purported marriage to the deceased was a nullity as was evidenced from the deceased’s forged signature on the marriage certificate marked “LAO”.

10. It was his case that on the 3. 3.2015, the deceased executed a Power of Attorney in his favour and that he had carried out his obligations as per the power granted to him. He further stated that was the one who took care of the deceased from the time he fell ill till his demise.

11. The 1st respondent disputed the fact that he fraudulently acquired letter of administration over the deceased’s estate or that he was under any obligation to inform the applicant or anybody else of his intention to petition for the grant.

12. It was his case that he was ready to render accounts once he completed his duty as an executor. He further averred that the child R.O.M. alleged to be the deceased’s and the applicant’s was not the deceased but of one Benjamin Mathingu.

13. PW2, who is the 2nd respondent testified that he lived with his father, the deceased, at the KPLC Quarters in Kisumu until 2007 when they moved to land parcel no. Kanyakwar A403 where they had different house helps including the applicant. He further testified that the house help would sleep in the sitting room while he and his dad slept in the bedroom. He admitted that in 2013, he and his father attended the applicant’s graduation in Eldoret.

14. PW2 testified in cross-examination that in 2014 he moved to Milimani to live with his uncle because it was closer to school and that his father joined him later as he was sickly. He stated that he was not aware whether his father wrote a will as he was very young.

15. PW3, Joseph Musomba testified that he prepared the will for the deceased when the deceased was in a sober state of mind. It was his testimony that the deceased informed him that he had a girlfriend whom he did not want to be associated with his wealth. PW3 further testified that the 1st respondent and his sister Rose who were the executors of the will also witnessed the will

16. The applicant filed a further affidavit in response to the response by the 1st respondent. It was her case that she was never married to Zablon Opondo Otiende though he was the biological father to her son J.O.M whom the decease had accepted as his own.

17. The applicant further stated that the deceased’s alleged last will did not meet the prerequisite for written wills as it only indicated the 1st respondent as both the executor and witness and further left out other primary beneficiaries of the deceased.

18. It was her case that she had lived with the 2nd respondent from the year 2008 when she got married to his father. She further averred that the respondents had concealed motor vehicle KBK 404A belonging to the deceased from the list of assets.

19. The applicant averred that the respondents had demonstrated bad faith and ill intentions to deceive this court and were thus not suitable administrators of the deceased’s estate.

20. The parties agreed to file submissions to dispose of the matter.

The Applicant’s Submissions 21. It was submitted that the deceased lacked capacity to make and execute a valid will considering the assessment that he had received from his last hospital visit, 3 months to the making of the will, in which the doctor noted that the deceased was confused with loss of short- and long-term memory.

22. The applicant further submitted that the 1st respondent was not a valid witness to the will as he testified himself how he was not present at the time the testator signed the will but rather that the will was subsequently taken to him. The applicant further impugned the deceased’s sister’s action of travelling from Nairobi merely to sign the will.

23. In addition to the above, it was the applicant’s case that the 1st respondent and his sister being executors of the will were not valid witnesses of the will. Reliance was placed on the case In re Estate of Lusila Wairu Waweru (Deceased) [2020] eKLR where the court emphasised the need of having the will signed in the presence of witnesses.

24. It was submitted that the 1st respondent failed to disclose in his application for the grant of probate the existence of the applicant and further that Land Parcel No. Kisumu/Kanyakwar “A”/403 had four door rental houses from which he had been collecting rent since the deceased’s passing.

25. The applicant submitted that some of the deceased’s assets such as Motor Vehicle KBK 404A were omitted from the will and further that the advocate who prepared the will failed to ascertain the ownership of the deceased’s alleged properties.

26. The applicant submitted that the 1st respondent had transferred the suit properties to the name of the 2nd respondent despite court orders to the contrary thus demonstrating that the 1st respondent was unfit to be an administrator.

27. It was submitted that section 66 (a) of the Law of Succession Act gave preference to the deceased’s surviving spouse in cases where a deceased had died intestate.

The Respondents’ Submissions 28. The respondents submitted that there was no evidence adduced by the applicant to sustain her claim that the grant issued to the 1st respondent ought to be annulled or that the 1st respondent mismanaged the deceased’s estate.

29. As to the validity of the will, the respondents submitted that the testator fully complied with section 11 of the Law of Succession Act which was duly witnessed by over two witnesses.

30. Regarding the deceased’s beneficiaries, the respondent submitted that the 2nd respondent was the only beneficiary of the deceased’s estate and that the deceased could not have contracted a valid marriage to the applicant as the applicant was married to Zablon Opondo Otiende and further that there was need for a D.N.A test to be conducted on R.O.M.

31. The respondents submitted that Kisumu/Kanyakwar/ “A”/403 had already been transferred to the 2nd respondent and was thus not subject of the instant proceedings and further that land parcel Kisumu/Korando/4933 was not in the name of the deceased at the time of his death but was transferred to the 1st respondent afterwards to hold in trust for the 2nd respondent.

Analysis and Determination 32. I have carefully considered the pleadings filed herein by both parties as well as their respective submissions and I find that the issues for determination are:i.Whether the applicant was the deceased’s wife,ii.Whether the grant issued to the 1st respondent ought to be annulled.

33. On the first issue, the applicant asserted that she was the deceased’s wife as they begun cohabiting in 2008 with the deceased paying dowry in 2011 and the couple solemnizing their marriage on the May 15, 2014.

34. In response, the respondents refuted this claim with the 1st respondent stating that the deceased was not in a position to procure a marriage with the applicant as the applicant was already married to one Zablon Opondo. On his part, the 2nd respondent stated that the applicant was one of the house helps who used to stay with him and his father.

35. The standard of proof in civil cases was discussed in the Court of Appeal decision in Civil Appeal 15 of 2016, Samuel Ndegwa Waithaka v Agnes Wangui Mathenge & 2 others [2017] eKLR. The Court while referring to Lord Nicholls observed as follows;12. In Civil cases such as this case, the standard of proof is on the balance of probabilities. This standard means that a court is satisfied an event occurred if the court considers that, on the evidence, the occurrence of the event was more likely than not. In H (Minors) [1966] AC 563 at pg 586, Lord Nicholls explained that the test on the balance of probabilities was flexible. Said he,“When assessing the probabilities, the court will have in mind as a factor, to whatever extent is appropriate in the particular case, that the more serious the allegation, the less likely it is that the event occurred and, hence, the stronger should be the evidence before the court concludes that the allegation is established on the balance of probability. Fraud is usually less likely than negligence. Deliberate physical injury is usually less likely than accidental physical injury.....…..Built into the preponderance of probability standard is a generous degree of flexibility in respect of the seriousness of the allegation. Although the result is much the same, this does not mean that where a serious allegation is in issue, the standard of proof required is higher. It means only that the inherent probability or improbability of an event is itself a matter to be taken into account when weighing the probabilities and deciding whether, on balance, the event occurred. The more improbable the event, the stronger must be the evidence that it did occur before, on the balance of probability, its occurrence will be established.”

36. The onus rests on the applicant to prove her allegation that she was married to the deceased. It was the applicant’s case that she was married to the deceased and that the deceased had paid dowry of Kshs. 100,000. Though the applicant did not adduce any evidence that dowry was paid, she testified that she and the deceased had their marriage formalised at the Registrar of Marriages Offices as evidenced in the Certificate of Marriage produced that bore the Serial Number 198028.

37. Despite the respondents’ averments that the deceased was not married to the applicant as she was in another marriage already, the respondent failed to adduce any evidence in support of their assertions or to controvert the evidence of marriage as supported by the Marriage Certificate produced by the applicant. Further, other than alleging that the deceased’s signature on the aforementioned marriage certificate was forged, the respondents similarly did not adduce any evidence to prove fraud or forgery which is a serious offence, to contradict or fault the Certificate of Marriage produced by the applicant.

38. In the circumstances, and in absence of evidence to the contrary, I find that the balance of probabilities tilts in favour of the applicant’s assertion that she was married to the deceased and that therefore she was his widow. The applicant in her submissions in response to the contention by the respondents that the deceased left a valid will asserted and submitted that the subject Will as annexed was not valid. However, the applicant did not in her prayers, seek to challenge the will in question and therefore I do not find it appropriate at this stage to delve into the validity or otherwise of the alleged will which the 1st respondent filed into court.

39. In addition, it is noteworthy that the deceased did not will away his whole estate as the motor vehicle registration number KBK 404A referred to by the applicant and which the respondents never disputed that it existed, was not provided for in the will.

40. On whether the grant issued to the 1st respondent ought to be annulled, section 76 of the Law of Succession Act which provides for revocation and annulment of grant and the same provides as follows:“A grant of representation, whether or not confirmed, may at any time be revoked or annulled if the court decides, either or application by an interested party or its own Motion.(a)That the proceedings to obtain the grant were defective in substance,(b)That the grant was obtained fraudulently by making of a false statement or by concealment from the court of something material to the case(c)That the grant was obtained by means of untrue allegations of facts essential the point of Law to justify the grant notwithstanding that the allegation was made in ignorance or inadvertently. The revocation or annulment is also governed by Rule 26 of the Probate & Administration Rules which states that: -“Letters of Administration shall not be granted to any applicant without Notice to every other person entitled in the same degree as or in the priority to the applicant. 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 the form 38 or 39, by all persons so entitled in equally or priority be supported by an affidavit of the applicant and such other evidence as the court may require”

41. These sections signify that a petitioner for grant of Letters of Administration will be deemed prima facie to have obtained a fraudulently grant, with respect of the estate if he or she fails to issue notice to any of the dependents or beneficiaries to the estate of the deceased, including obtaining their necessary consents as mandatory provided in the Succession Act. Equally, the grant of letters turns out to be defective if the evidence shows that it was issued in error, mispresentation of facts, concealment or nondisclosure of material evidence relevant and admissible for the making of the grant of representation.

42. In the case of Matheka and Another V Matheka (2005) EA 251 it is clearly stated as follows:“A grant may be revoked either by application or by an interested party or on the courts own motion. Even when revocation is by the court upon its own of motion, there must be evidence that the proceedings to obtain the grant were defective in substance, or that the grant was obtained fraudulently by making a false statement or by concealment of something material to the case or that the grant was obtained by means of untrue allegations of facts essential in point of Law or that the person named has failed to apply for Confirmation or to proceed diligently with the administration of the estate. The grant may also be revoked if it can be shown to the court that the person to which the grant has been issued has failed to produce to the court such inventory or account of administration as may be acquired.”

43. In the case of Ngaii Gatumbi alias James Ngaii Gatumbi (deceased) Nairobi Succession Cause No 783 OF 1993, the application for revocation was brought by persons who were omitted from the Petition for Grant, of Letters of Administration although, they were equally entitled to apply, but were not notified of the Petition neither were their respective consents obtained. The court revoked the grant on the ground that it had been obtained by a defective or irregular process.

44. Applying the above principles as it transpired in this instance, Section 29 of the Law of Succession clearly sets out an account on the definition and hierarchy of dependents of the deceased who are bound to benefit from the estate, subsisting at the time of his or her demise. Secondly, Section 35, 37, 38 and 39 of the said Act fundamentally and without any contradiction sets out the order of priority of the persons entitled to inherit the deceased estate. The provisions point out first it is the spouse or spouses and their children.

45. Apparently, in the Petition for Grant of Letters of Administration and subsequent confirmation, the respondent-initiated proceedings without notice to the applicant herein. It is clear from the documents produced by the applicant that the 1st respondent as well as the 2nd respondent though the latter was a minor then in 2015 but was not a child of tender years and that the Notices issued to the applicant by the Department of Children’s Services referred to her as step mother who was expected to pay fees for the 2nd respondent, from the rental income received from the houses owned by the deceased. See “LAO 10”. It follows that the two respondents cannot pretend not to know what kind of relationship the applicant had with the deceased Ashby.

46. Further to the above, the 1st respondent, in my view, knew and ought to have known that since the deceased was married to the applicant, he should have notified her of the existence of the alleged Will so that she exercises her right to challenge the will where the ‘will’ clearly made no provision for her and the deceased’s other dependent children and the said Will even claimed that the deceased was not married yet the deceased was legally married to the applicant as shown by the marriage certificate. I further find that the 1st respondent is not honest in his testimony because he alleged that the deceased was very sick and could not have contracted a marriage with the deceased yet he wants the court to believe that at the time the deceased was not in his sound mind, he write the alleged Will on 10th October, 2014.

47. Upon the death of a testator, executors of a Will are under a duty to read out the will to the family of the testator whether provided for in the will or not. The applicant has adduced evidence that herself and her two children were the deceased’s dependants and that she bore one child with the deceased while she had her child from a previous relationship before she met the deceased and that the deceased maintained that child and even allowed him to use his name on the birth certificate. The respondents alleged that the two children were not the deceased. However, the applicant pleaded and adduced evidence that the deceased had taken in J.O.M as his own and that R.O.M was the product of the deceased’s union with the applicant. The applicant went further and adduced evidence of birth certificates showing that the deceased had given the two children his name. This evidence was not controverted by the respondents who merely asserted that he would require DNA but never pursued the DNA test to be undertaken on the child in question.

48. In the circumstances of this case, I find it difficult to conceive how the 1st respondent went ahead to obtain Grant of probate in the absence of notice to the spouse and children of the deceased.

49. Before I conclude on this matter, I must mention what I have observed from my perusal of the entire court file and which is a serious legal issue that the court must address itself on, even if no party raised it because it goes to the root of this case.

50. The petition for grant of probate was filed by the firm of Gichaba and Company Advocates of P.o. Box 601-40100 Kisumu whereas the 1st respondent’s affidavit in support of that petition was sworn before Wesley M.R.Gichaba Advocate, Commissioner for oaths, Notary Public & CPC(K). The advocates letter head also discloses that Mr. Wesley M.R.Gichaba is the proprietor of Gichaba &Company Advocates. In other words, the same advocate who drew and filed the petition for grant of probate is the same who commissioned the petitioner’s affidavit in support.

51. It is the same Mr. Wesley Gichaba advocate herein who is actively involved in defending the respondents herein and who has filed all other documents on behalf of the petitioner/ administrator.

52. In Stephen M Mogaka v Independent Electoral & Boundaries Commission (IEBC) & 2 others [2017] eKLR the Court addressing itself to this issue stated as follows:“The next issue for consideration is whether a commissioner for Oaths can exercise the powers given under Oaths and statutory Declarations Act in any proceedings or matter in which he or she is the Advocate for any of the parties to the proceedings or concerned in the matter in which he or she is interested" The relevant law on this point is found under Section 4 (1) of the Oaths and Statutory Declarations Act, which provides:-“A commissioner for oaths may, by virtue of his commission, in any part of Kenya, administer any oath or take any affidavit for the purpose of any Court or matter in Kenya, including matters ecclesiastical and matters relating to the registration of any instrument, whether under an Act or otherwise, and take any bail or recognizance in or for the purpose of any civil proceeding in the High Court or any subordinate court:Provided that a commissioner for oaths shall not exercise any of the powers given by this section in any proceeding or matter in which he is the advocate for any of the parties to the proceeding or concerned in the matter, or clerk to any such advocate, or in which he is interested.”[emphasis added]50. In R.E BAGLEY (1911) 1 KBD 317 at the hearing the Court highlighted thus:“Now one of those affidavits was sworn before Mr. Goddard, who was the solicitor for the trustee of the deed, and they also have been interested in it. It is sufficient to say that he was solicitor for the trustee of the deed, as appears from the endorsement of the deed itself. That is the really important point in this case. Is an affidavit, or what purport to be an affidavit, sworn before the solicitor of the trustee of the deed a nullity and is its effect to render the deed void…. It was held thus:-“Provided that a commissioner for oaths shall not exercise any of the powers given by this section in any proceeding in which he is solicitor to any of the parties to the proceeding, or clerk to any such solicitor, or in which he is interested.”“That is to say, although under the first part of the section he is generally empowered to administer an oath whether the oath be in the form of an affidavit or of a statutory declaration, yet there is a proviso that this general power may not be exercised by any person who is solicitor to any of the parties in any proceeding.” …“If am right in the view that Goddard had no authority to administer this particular oath, it seems to me that there was no affidavit at all, and, that being so, the deed to the validity of which the filing of the debtor’s affidavit is essential is no deed at all and is gone….”51. In the case of James Francis Kariuki & Another V United Insurance Co. Ltd Civil Appeal No. 1450 of 2000, Hon. Justice Onyango Otieno, as he then was; held as follows:“That the verifying affidavit sworn by the plaintiffs is incurably defective as the Commissioner for Oaths while exercising the powers given, offended the mandatory proviso of Section 4(1) of the Oaths and Statutory Declarations Act.”“The simple facts of this case are that the Plaintiffs are, according to the Plaint represented by Njenga Mwaura and Company, Advocates. Mr. Njenga Mwaura is a Partner in the firm of Njenga Mwaura and Company, Advocates, who are the Advocates representing the Plaintiffs. The Verifying affidavit has been sworn before Njenga Mwaura as Commissioner for Oaths…”“It will be clear from the above that Mr. Njenga Mwaura, being an Advocate in the firm that is acting for the plaintiff should not have allowed the verifying affidavit to be sworn before him as in any event, is an interested party.”52. In Kenya Federation of Labour & Another V. Attorney General & 2 Others Industrial Court of Kenya at Nairobi, Case No. 735 of 2012, Hon. Justice Nzioki wa Makau held:“The short answer to that is that it would be against the provisions of the Oaths and Statutory Declarations Act. A Lawyer cannot commission a document drawn by his/her firm. Indeed, the further affidavit by the claimants was defective in form as the jurat was not in conformity with the Oaths and Statutory Declaration Act.”53. Caltex Oil (Kenya) Limited Vs New Stadium Services Station Limited & Another [2002] eKLR Hon Justice Onyango Otieno, as he then was, stated as follows:“I do think that the courts have a duty to rightly interpret the laws and to ensure that they do not condone any breaches of the same laws under any pretences whatsoever. I still stand by what I did say in the case of James Francis Kariuki & Another Vs. United Insurance Co. Ltd HCCC No. 1450 at 2000 that such an affidavit sworn in violation of section 4 (1) of the Oaths and Statutory Declarations Act is for all intents and purposes not an affidavit as envisaged in law and is not capable of being received under Order 18 Rule 7 as it offends a provision of an Act of Parliament and does not represent a mere irregularity either in defect as to form or by misdirection of the parties, or in the title.”

53. The learned Judge then concluded that:“In view of the e provision of Section 4 (1) of the Oaths and Statutory Declarations Act, it is clear from the facts of this petition, that the Petitioner in this petition is represented by the firm of M/s. Musyoki Mogaka & Co. Advocates, the firm which drew and filed this petition. The affidavits were sworn before Mercy Moragwa Mogusu, a Commissioner for Oaths who practices or works with the said firm, which is representing the Petitioner. It was clear at the time of commissioning of the affidavits that M/s. Mercy Moragwa Mogusu, being an Advocate practicing law in the firm, that is acting for the Petitioner should not have allowed the supportive affidavit of the Petitioner as well as the six witnesses affidavits to be sworn before her as in the event she is an interested party.”

54. Applying the above decision and provisions of the Oaths and Statutory Declarations Act as interpreted therein, I find that the petition for grant of probate was dead on arrival at the first instance in view of the legal flows of the advocate for the petitioner commissioning an affidavit for the petitioner in the same matter.

55. I say Dead because the law requires that a petition for grant must be accompanied by an affidavit and therefore where no affidavit filed is commissioned by the same advocate representing a party in the cause, then there is no affidavit and therefore the whole succession proceeding is fatally defective.

56. On whether the petition itself could survive without an affidavit in support, Rule 7 of the Probate and Administration Rules is on Application for grant: general provisions and provides as follows:“(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—[emphasis added](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;(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)if the deceased died testate leaving a written will, the names and present addresses of any executors named therein; and(h)the postal and residential addresses of the applicant.”

57. Thus, with the law requiring that a petition be filed with an affidavit in support, where an affidavit filed is found to be invalid, as is in the instant case, there is no petition. Without a petition, the basis upon which the grant of probate was issued sinks. Accordingly, I find that the grant of probate issued to the 1st respondent was materially defective and is amenable for revocation.

58. It is also clear that some of the assets of the deceased were not even part of the alleged Will and these include the motor vehicle and land parcel No. Kisumu/Korando/4933 which had not fully crystalized to him at the time of his death and therefore the deceased died leaving some assets outside what is said to be his Will as he could not will away what was not in his name. What that means is that his estate was not fully testate even assuming that the Will is valid.

59. Further, despite the power of Attorney given to the 1st respondent on 3rd March, 2015 regarding Kisumu/Korando/4933, upon the death of the deceased donor, the power of attorney was extinguished and therefore the 1st respondent could not have used the power of attorney to get the suit property Kisumu/Korando/4933 transferred into his name for him to transfer the same to the 2nd respondent.

60. In the end, I find that the applicant’s summons for annulment of grant dated 10. 7.2017 is merited. I allow it, annul the Grant of probate issued to the 1st respondent on 11/10/2016 and confirmed on 5th June, 2017 and order that the estate of the deceased Ashby Musila Muia shall be administered afresh with the full participation of the 2nd respondent who is now of age and the applicant who is now at liberty to file proceedings challenging the will relied on by the 1st respondent.

61. Having annulled the grant of probate, I hereby order that the property which was in the name of the deceased prior to his demise and transferred to the 1st respondent and subsequently to the 2nd respondent shall revert to the deceased’s name until proper succession proceedings are undertaken. All other assets in the estate will await a fresh grant before distribution. The beneficiaries of the estate of the deceased to commence fresh succession proceedings to administer the estate of the deceased.

62. I make no orders as to costs.

63. This file is closed.

DATED, SIGNED AND DELIVERED AT KISUMU THIS 29TH DAY OF JUNE, 2023R.E. ABURILIJUDGE