[2015] KEHC 2097 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KAKAMEGA

SUCCESSION CAUSE NO.68 OF 2005

IN THE MATTER OF THE ESTATE OF EMMANUEL OPINDI OMUKOKO (DECEASED)

AGGREY AMARIATI OPINDI………………………………PETITIONER

WILLIAM AMOYI OPINDI ………………………………….OBJECTOR

J U D G M E N T

The deceased herein, Emmanuel Opindi Omukoko died on 15/01/1987 at the age of 70 years. From the records, the deceased owned one parcel of land, namely Title No.Marama/Inaya/377 measuring 5. 0 acres. Also from the records, the deceased was survived by the following:-

Aggrey Amariati Opindi –

Wycliffe Eshawata – son

William Amoyi Opindi – son

Raphael Otieno Omukoko – son

Petero Opindi – son

Mildred Ayako Olaka - daughter

On the strength of the Assistant Chief’s letter dated 14/02/2005, the Petitioner herein Aggrey Amariati Opindi commenced these proceedings on 15/02/2005. The Grant was issued to the Petitioner on 03/04/2006 and on 16/10/2006, he filed the Summons for Confirmation of Grant in which he proposed to distribute the deceased’s estate as follows:-

Aggrey Amariati Opindi - 0. 5 acres

Wycliffe Eshamwata - 0. 5 acres

Raphael Otieno - 0. 5 acres

William Amoyi - 0. 5 acres

Mildred Ayako Olaka - 2. 5 acres

Before confirmation, Wycliffe Eshamwata raised an objection which led to oral evidence being taken. The Objector contended that the distribution proposed by the Petitioner was contrary to what their father had done with his Estate. The Objector prayed that the proposed distribution of the deceased’s estate be rejected because according to him the deceased’s four (4) sons had all got their respective share of land from their father as follows:-

Aggrey Amariati Opindi – L.P No. Marama/Inaya/406

Wycliffe Eshamwata – L.P No. Marama/Inaya/453

Omukoko Opindi – L.P No.Marama/Inaya/424 and that the only person who had not been given a share by the deceased was William Amoyi Opindi to whom LP No.Marama/Inaya/377 should devolve.

In his replying affidavit, the Petitioner stated that the deceased had another son by the name Peter (Petero) Opindi for whom no provision of the deceased’s estate had been made. He also stated that Mildred Ayako was a stranger to the deceased’s estate although it is the Petitioner himself who listed the said Mildred as a daughter to the deceased. The Petitioner did not agree with the Objector that William Amoyi Opindi was not given land by their father. According to the Petitioner, William was given jointly with the Objector L.P No.Marama/Inaya/453 measuring 8. 0 acres. The Petitioner averred that the Objector has refused to share out the land with William.

During the hearing, the Objector was represented by M/s P.M. Muleshe advocate of Phoebe Munihu Muleshe & Co. Advocates while the Petitioner appeared in person. At the close of the hearing, Counsel for the Objector filed written submissions and proposed that because the whereabouts of the parties’ step-brother one Petero Opindi are unknown, the LP No.Marama/Inaya/377 should be confirmed in the name of William Amoyi Opindi who has never been given his own share of inheritance from the deceased. The Petitioner who appeared unlearned did not file any written submissions.

I have now carefully read through the testimonies of both the Objector and the Petitioner. I have also read the testimony of Mildred Ayako Olaka who was shown on Form P & A 5 as a daughter of the deceased. In her testimony, she stated that she was the only daughter of one Andika Ashikhube who allegedly bought some 2. 5 acres from the deceased herein sometime in 1972. However, Mildred had no papers to show that her father (also deceased) bought any land from the deceased herein, nor did she produce any evidence, either oral or documentary to show that she was using a portion of LP No. Marama/Inaya/377. It is therefore clear that the Petitioner gave wrong information to the Court when he stated that Mildred Ayako Olaka was a daughter to the deceased.

The Objector on his part states that he does not have any interest in LP No.Marama/Inaya/377. He is asking the Court to order that the said parcel of land be given to the parties, brother William Amoyi Opindi.

After a careful analysis of the evidence on record, I find and hold that Mildred Ayako Olaka is a stranger to the deceased’s estate. Although she claims that her father bought 2. 5 acres from the deceased in 1972, she had no evidence to that effect. Her claim against the estate of the deceased is therefore unsupported and is accordingly dismissed.

Concerning the issue as to who should inherit LP No. Marama/Inaya/377, I am satisfied that the same should go to William Amoyi Opindi since Petero Opindi for whom the Petitioner wants the land are unknown. According to both the Petitioner and the Objector, the said Petero has never come home to where the family lives. I note that the Objector’s desire to have the land registered in William Amoyi’s name could be for his own selfish ends because the parcel of land he occupies being LP No.Marama/Inaya/453 measures 8. 0 acres as compared to the Petitioner’s 6. 5 acres. Nonetheless, that is his entitlement.

In conclusion, I find and hold that the objection herein has merit. The same is allowed. The Summons for Confirmation dated 16/10/2006 be and is hereby struck out with no order as to costs. The Petitioner shall file a fresh Summons for Confirmation of Grant in accordance with the findings of this Court. If the Petitioner fails to file the Summons within the next sixty (60) days from the date hereof, the Objector will be at liberty to do so within thirty (30) days of the expiry of the period of 60 days granted to the Petitioner. Any party dissatisfied with the proposals in the Summons for Confirmation shall be at liberty to file their Affidavit of Protest.

Orders accordingly.

Judgment delivered, dated and signed in open Court at Kakamega this 24th day September 2015.

RUTH N. SITATI

J U D G E

In the presence of:-

Mrs Muleshe (present) for Objector/Applicant

Aggrey Amariati Opindi (absent) for Petitioner/Respondent

Mr. Lagat - Court Assistant