[2021] KEHC 13182 (KLR)

REPUBLIC OF KENYA

IN THE HIGH CURT OF KENYA AT BUSIA

SUCCESSION CAUSE NO.429 OF 2014

DAVID OSIMBO MAKANDA (Suing on behalf of the estate of

JOSEPH OSIMBO MAKANGA............................PROTESTOR/APPLICANT

VERSUS

REV. FATHER OLUSI INGIDI DAVID.............PETITIONER/RESPONDENT

R U L I N G

[1]Pursuant to the petition for letters of administration intestate dated 15th May 2014, respecting the estate of the late James Were Olusi (deceased), the Reverend Father Olusi David (petitioner) was granted by this court the grant of letters of administration intestate dated the 22nd April 2015. After confirmation of the grant on the 21st September 2016, the necessary certificate of confirmation of grant dated 22nd September 2016 was issued.

Thus, the estate comprising a parcel of land described as Bunyala/Bukoma/975 was distributed to the petitioner with the consent of other beneficiaries of the estate including two sons of the deceased Casmil and Christopher and three daughters of the deceased including Consolata, Beatrice and Mary.

[2]However, on the 18th October 2019, the present application for revocation of the grant and the certificate of confirmation of grant was filed by David Osimbo Makanga on behalf of the estate of the late Joseph Osimbo Wesonga (objector/applicant). In doing so, the applicant moved the court wrongly by way of a notice of motion instead of summons for revocation and/or annulment of grant. The application contained other prayers not suitable for determination by a succession court. Be that as it may, the petitioner opposed the application on the basis of the grounds and averments contained in his replying affidavit dated 4th September 2020.

[3] Hearing of the application proceeded by way of affidavit evidence and written submissions which were filed by both parties through Mayende & Buseiga Advocates and J.V. Juma & Co. Advocates, respectively.

After due consideration of the application together with the rival submissions, this court is of the view that the issues arising for determination arefirstly, whether the estate property was properly availed for distribution as a whole entity. Secondlywhether it is proper for the entire property to be transferred wholly to the petitioner and thirdly, whether the objector was entitled to half of the property on behalf of the estate of his late father Joseph Osimbo Makanga who allegedly owned the property jointly with the petitioner’s late father.

[4]With regard to the first issue, the objector submitted that half share of the property was owned by his late father but the petitioner intermeddled with it and eventually claimed the whole property which was eventually registered in his name.

In response, the petitioner conceded that the property was initially registered in the joint names of his father and the respondent’s father but that the objector did not lay a claim to half share of the property even after the death of his father. The petitioner submitted that the property measured 0. 45ha such that its joint owners were each entitled to 0. 225ha. That, the objector’s father’s share of the property was owned by his clansmen after they encroached on it without objection from the objector’s father.

[5]The petitioner implied that he fenced off his share of the property to prevent intrusion from the objector’s clansman. That, his share measures 0. 11ha which is almost half of his late father’s share in the property as per the exhibited certificate of search dated 8th May 2014.

From the search certificate and the petitioner’s submissions coupled with that of the objector, the estate property was as a whole owned jointly by the late fathers of the objector and the petitioner.

The certificate of search showed and confirmed that the property as a whole measured 0. 45 hectares and the two owners were each entitled to half of the land. Therefore, it was within the right of the petitioner to avail the property for distribution when he petitioned for the grant and applied for its confirmation. However, in his petition dated 15th May 2014, the petitioner availed the whole of the property measuring 0. 45 hectares for administration and distribution to the beneficiaries of the father’s estate. He was not required to avail the whole parcel of land for distribution but only half share of the property belonging to his late father.

[6]For the foregoing reasons, it was also improper for the petitioner to cause the whole portion of the estate property to be transferred to himself and registered in his name without acknowledging and/or recognizing the objector’s interest in the property. The second issue for determination is thus accordingly determined in favour of the objector just as the first issue.

On the basis of the findings in the first and second issue, the third issue must also be determined in favour of the objector. He was clearly entitled to a half share of the estate property through the estate of his late father. In the circumstances, the petitioner ought to have included objector’s father’s estate through the objector as a beneficiary of the estate in the impugned certificate of confirmation of grant given that he was not included as such in the application for the grant.

[7]In essence, this present dispute is more on the distribution of the estate rather than the grant of letters of administration to the petitioner. Since the grant was made for the whole estate property including the part owned by the objector’s father, the petitioner ought to have included the objector in the application for confirmation of grant and gone ahead to transmit a half share of the property to the objector. Inasmuch as the petitioner did not do so, the certificate of confirmation of grant dated 22nd September 2016, falls for revocation as it was obtained by concealment of material facts, regarding part ownership of the estate property by the objector’s late father.

[8] In sum, the present application is allowed to the extent that the aforementioned certificate of confirmation of grant is hereby revoked. Fresh summons for confirmation of grant be taken out within the next four (4) months from this date hereof. In default, the grant issued to the petitioner dated 22nd April 2015 be revoked forthwith. Otherwise, pending fresh distribution of the estate as between the petitioner and the objector, the ownership of the entire portion of the property measuring 0. 45 hectares shall revert jointly to the late father of the petitioner and the late father of the objector. Matter be mentioned on 19/10/2021 for a status report and/or further orders.

Mention notice to issue to objector.

J.R. KARANJAH

J U D G E

[READ AND SIGNED THIS 15TH DAY OF JULY 2021]