[2017] KEHC 2843 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KISUMU

SUCCESSION CAUSE NO.574 of 2013

IN THE MATTER OF THE ESTATES OF OMWOMBO DANDE AND JUMA ANDADE ALIAS JUMA DANDE (DECEASED)

BETWEEN

ALEX ODUORI OKOTH……………………………………………...................APPLICANT/OBJECTOR

AND

PETRONELLA A. ODUORI……….………………………….…….………PETITIONER/RESPONDENT

JUDGEMENT

Introduction

The deceased persons, OmwomboDande andJumaAndade alias JumaDandedied sometimes on 7th February, 1995 and 20th September 2012 respectively. The deceased persons were not married and did not have children and they were survived by their sister Petronella A. Oduori, the petitioner/respondent herein. The petitioner applied for letters of administration which were issued in her favour on 4th January, 2013.

OmwomboDande and JumaAndade alias JumaDande estates compriseproperty in LR. NO. North Ugenya/Sifuyo/918 and LR. NO. North Ugenya/Sifuyo/ 600 respectively.

Application

The Notice of Motion before the court is dated on 21st March, 2013ismade under Sections38, 66(b), 71 and 76 of the Law of Succession Act (Chapter 160 of the Laws of Kenya). The applicant seeks the following orders:

1. That the letters of administration which were issued toPetronella A. Oduori, the petitioner/respondent herein, on 4th January, be revoked and/or annulled.

2. That the letters of administration be issued toAlex OduoriOkoth, the applicant/objector

3. That a prohibitory order do issue on LR. NO. North Ugenya/Sifuyo/918 and LR. NO. North Ugenya/Sifuyo 600 pending the determination of this matter

4. The costs of the application be provided for.

Objectors/Applicants’ Case

The application is supported by an affidavit sworn by the applicant/objectoron28th March, 2013. The objector describeshimself as a nephew of the deceased persons. In his testimony; he told court that the deceased were his uncles and he was therefore their nephew. It was his testimony that land parcels LR. NO. North Ugenya/Sifuyo/918 and LR. NO. North Ugenya/Sifuyo 600 were given to the deceased persons by his father and that he was therefore entitled to a share of the estates. He stated that he was entitled to deceaseds’ estates because the parcels of land originally belonged to his father.

In cross-examination and upon being shown search certificates for LR. NO. North Ugenya/Sifuyo/918 and LR. NO. North Ugenya/Sifuyo 600 by Mr. K’Owinoh, learned counsel for the petitioner; the applicant/objector conceded that there was no evidence that the land parcels originally belonged to his father.

Francisca AokoOkoth, the objector applicant’s mother also stated that the land parcels that form the deceased persons estates were given to them by her late husband. She conceded that the deceased persons were not married and had no children and that the petitioner/respondent was their sister and closest blood relative.

Respondent’s Case

The petitioner stated that the deceased persons are her blood brothers who died without wives and children and that she was the closest blood relative entitled to their estate.

Determination

The matter before the court is an application for revocation and/or annulment of letters of administration which is governed bysection 76 of the Law of Succession Act and which provides as follows:

Agrantofrepresentation,whetherornotconfirmed,mayatanytimeberevoked or annulled if the court decides, either on application by any interested party or of its own motion—

(a) That the proceedings to obtain the grant were defective in substance;

(b) That the grant was obtained by the making of a false statement or by concealment of from the court of something material to the case

(c)thatthegrantwasobtainedbymeansofanuntrueallegationofafact essential in point of law to justify the grant notwithstanding that the allegation was made in ignorance or inadvertently;

(d)Thatthepersontowhomthegrantwasmadehasfailed,afterdue notice and without reasonable cause either—

(i)Toapplyforconfirmationofthegrantwithinoneyearfromthe date thereof, or such longer period as the court order or allow; or

(ii) To proceed diligently with the administration of the estate; or

(iii) toproducetothecourt,withinthetimeprescribed,anysuch inventory or account of administration as is required by the provisions of paragraphs (e) and (g) of section 83 or has produced any such inventory or account which is false in any material particular; or

(e)That the grant has become useless and inoperative through subsequent circumstances

The issue for determination is whether the objectors/applicants’ case falls within the provisions of section 76 of the Law of Succession Act. The evidence on record has disclosed that the deceased persons, OmwomboDande and JumaAndade alias JumaDandewere survived by their sister Petronella A. Oduori, the petitioner/respondent to whom letters of administration intestate were granted on 4th January, 2013 . It is on record that the objector/applicant is a nephew of the deceased persons.

Section 66 of the Law of Succession Act provides as follows:

When a deceasedhasdied intestate, the court shall, save as otherwise expresslyprovided,haveafinaldiscretionastothepersonorpersonstowhom a grant of letters of administration shall, in the best interests of all concerned, be made,butshall,withoutprejudicetothatdiscretion,acceptasageneralguidethe following order of preference—

(a) survivingspouseorspouses,withorwithoutassociationofother beneficiaries;

(b) otherbeneficiariesentitledonintestacy,withpriorityaccordingtotheir respective beneficial interests as provided by Part V;

(c) the Public Trustee; and

(d) creditors:

Section 39 of the Law of Succession Act which is in Part V of the Act provides as follows:

Where intestate has left no surviving spouse or children

(1)Whereanintestatehasleftnosurvivingspouseorchildren,thenetintestate estateshalldevolveuponthekindredoftheintestateinthefollowingorderofpriority

(a) father; or if dead

(b) mother; or if dead

(c) brothers and sisters, and any child or children of deceased brothers and sisters, in equal shares; or if none

(d) half- brothers and half-sisters and any child or children of deceased half-brothers and half-sisters, in equal shares; or if none

(e) the relatives who are in the nearest degree of consanguinity upto and including the sixth degree, in equal shares.

(2)Failing survival by any of the persons mentioned in paragraphs (a) to (e)of subsection (1), the net intestate estate shall devolve upon the State, and be paid into the Consolidated Fund.

The deceased persons were survived by their sister Petronella A. Oduori, the petitioner/respondent, who is the third in the order of priority under Section 39 of the Law of Succession Act. From the foregoing position of the law;I find that the letters of administration intestate were lawfully issued to Petronella A. Oduori, the petitioner/respondent. The applicant/ objector who is the fifth in the order of priority under Section 39 of the Law of Succession Act would only benefit if the first to fourth, of deceased’s kin, in the order of priority did not survive him.

The search certificates for of LR. NO. North Ugenya/Sifuyo/918 and LR. NO. North Ugenya/Sifuyo 600 shows that OmwomboDande and JumaAndade alias JumaDandewere respectively the first registered owners of the said parcels. The applicant/objector’s contention that the parcels of land originally belonged to his father is not supported by any tangible evidence and it is therefore rejected.

Having said that, I find no evidence to support the applicant/objectors’ case for the revocation of the letters of administration intestate issued to the petitioner/respondent or in favour of issuance of the said letters to the applicant/objector.

Decision

As a result,

1. The Notice of Motion dated on 21st March, 2013 is considered and found to have no merit and it is dismissed

2. Thepetitioner/respondentis at liberty to proceed to apply for confirmation of the grant in accordance with the provisions of the law

3. Theapplicant/objectoris hereby ordered to pay costs of this objection to thepetitioner/respondent

DATED AND DELIVERED THIS5thDAY OFOctober2017

T. W. CHERERE

JUDGE

Read in open court in the presence of-

Court Assistant- Felix

Petitioner/Respondent-N/A

Applicant/Objector- N/A