[2022] KEHC 11373 (KLR)

Amollo v Obango; Oguta (Interested Party); Oyosi (Interested Beneficiary) (Succession Cause 893 of 2015) [2022] KEHC 11373 (KLR) (6 June 2022) (Ruling)

Neutral citation: [2022] KEHC 11373 (KLR)

Republic of Kenya

In the High Court at Kisumu

Succession Cause 893 of 2015

FA Ochieng, J

June 6, 2022

Between

Julius Abuto Amollo

Petitioner

and

Kennedy Odhiambo Obango

Objector

and

Daniel Moses Ooko Oguta

Interested Party

and

Daniel Otieno Oyosi

Interested Beneficiary

Ruling

1. On March 18, 2021the petitioner, Julius Abuto Amollo filed a summons for confirmation of the grant which had been issued on December 16, 2015.

2. By his supporting affidavit, the petitioner cited the following persons as having survived the deceased, John Oyosi Amolo;(i)Julius Abuto Amollo – Brother(ii)Daniel Amollo Ongaro – Brother(iii)Whycliffe Ouma Ongaro – Son(iv)David Ochieng Obango – Son(v)Kennedy Ochieng Obango - Son

3. He then proposed that the estate, which is comprised of the parcel of land L.R. No. Kisumu/ Gem Rae/148, be distributed as follows;(a)Julius Abuto Amollo – 1. 1206 HA(b)Bwaja Primary School – 0. 490 HA(c)John Oguta Obango – 1. 00 HA(d)Kennedy Odhiambo Obango – 0. 8494 HA

4. In the face of the application, objections were raised by Daniel Moses Ouko Oguta and also by Kennedy Odhiambo Obango.

5. On his part Daniel Moses Ooko Oguta cited the following 4 persons as those who survived the deceased;(1)Wycliffe Ouma – Son(2)Daniel Otieno – Son(3)Silpa Adhiambo – Daughter(4)Felix Omondi – Son

6. Although both Daniel and the petitioner indicated that the deceased was survived by 3 sons, the only one whose name is common in their respective lists is Wycliffe Ouma.

7. I find that the parties will need to give further clarity concerning the beneficiaries of the estate of the deceased, John Oyosi Amollo, before the court can determine the most justifiable manner of sub-dividing the estate.

8. The following are some of the matters about which the parties need to provide further evidence;(a)Was the property in issue initially ancestral land, which then came into the hands of the decased, John Oyosi Amollo, through the traditional process of succession?(b)If the answer to (a) above is in the positive, what portion thereof did the deceased inherit for himself and his immediate family?(c)Who are the wife (or wives), and the children of the deceased?(i)Have they agreed on how to divide the property?(ii)If they have not all agreed, how does the justice of the case dictate to the court about distribution?(d)Apart from the wife (or wives), and the children of the deceased, is there any other person to whom a portion of the estate should be divided?(i)If the answer is affirmative, who is that person?(ii)What size of land should be given to the said person(s)?

9. It does appear to the court that there are 2 possible options for resolving the issue of distribution. The first option is Mediation.

10. The second option is through further hearing, during which witnesses would give oral testimony before the Court.

11. The court now asks the parties to first consider submitting themselves to Mediation.

12. After hearing from the parties, concerning the proposed Mediation, the court will give further Directions and Orders herein.

13. Finally, the court wishes to draw the attention of all the parties to the fact that on May 31, 2018, Majanja J. delivered a Ruling, in which the learned Judge made provisional distribution as follows;(i)Bwaja Primary School – 0. 490 HA(ii)John Ogutta Obango – 1. 0 HA

14. The said provisional distribution has never been challenged by any of the parties, through either an appeal or an application for review.

15. If anything, the District Surveyor, for Nyando, Nyakach & Muhoroni Sub-Counties, Mr. Paul K. Rugut, did file a Survey Report dated August 27, 2018, in compliance with the Orders of Majanja J.

16. I note that the main objection to the Survey Report was that it did not make provision for the children of the deceased.

17. So far, there does not appear to be any justification for excluding the children of the deceased from inheriting their late father’s property.

18. On another note, I observe that there are contentions regarding non-compliance with the Orders of Majanja J., when the surveyor was conducting the exercise of verification of the persons who are in actual occupation of the suit land.

19. In particular, it has been alleged that the Assistant County Commissioner did not play any role in the process.

20. Furthermore, it has been alleged that only one Elder joined the District Surveyor during the exercise.

21. If there is any truth in the said allegations, the Survey Report may be rendered a nullity.

22. In the circumstances, if the parties were to express the view that the verification exercise be conducted afresh; and in accordance with the court Order dated May 31, 2018, this Court may well be persuaded to give appropriate directions in that regard.

**DATED, SIGNED AT DELIVERED AT KISUMU THIS 6TH DAY OF JUNE 2022FRED A. OCHIENGJUDGE