[2014] KEHC 2755 (KLR)
The court found that the applicant's proposed distribution of the estate was patently unfair to the protestor, who was allocated a much smaller share than his siblings. The applicant failed to contest the protest or justify the unequal distribution. Given the lack of response and the evidence that the protestor is a...
Source-derived case information.
- Citation
- [2014] KEHC 2755 (KLR)
- Parties
- Objector: Dominic Imoo Otwane; Applicant: Africanus Ikapel Otwane Kidera
- Court
- High Court
- Court Station
- High Court at Busia
- Jurisdiction
- Kenya
- Case Number
- Probate & Administration 44 of 2001
- Procedural Posture
- Probate and Administration / Ruling on Protest to Confirmation of Grant
- Outcome
- Application for confirmation of grant referred back to applicant for fresh proposal; protest upheld.
- Legal Topics
- Succession, Distribution of Estate, Confirmation of Grant, Equitable Share, Beneficiary Rights
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Dominic Imoo Otwane
Objector
Africanus Ikapel Otwane Kidera
Applicant
Procedural Posture
Probate and Administration / Ruling on Protest to Confirmation of Grant
Legal Issues
- 1 Whether the proposed distribution of the deceased's estate is equitable among all beneficiaries.
- 2 Whether the protestor, as a son of the deceased, is entitled to an equal share of the estate.
- 3 Whether the applicant's proposal for distribution is unfair and requires reconsideration.
Ratio Decidendi
The court found that the applicant's proposed distribution of the estate was patently unfair to the protestor, who was allocated a much smaller share than his siblings. The applicant failed to contest the protest or justify the unequal distribution. Given the lack of response and the evidence that the protestor is a son of the deceased, the court determined that each child should, in principle, receive an equal share. However, due to the complexity of the land parcels and to avoid hardship to beneficiaries, the court exercised its discretion under Rule 41(2) of the Probate and Administration Rules to refer the matter back to the applicant. The applicant is required to file a new proposal...
Court Disposition
Application for confirmation of grant referred back to applicant for fresh proposal; protest upheld.
Orders
- The application for confirmation of grant is referred back to the applicant to make a fresh proposal on distribution giving the protestor an equitable share.
- The applicant shall file an affidavit with the new proposal on distribution within 30 days of this ruling.
Full Case Text
Judgment text and source record
32 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT BUSIA
PROBATE & ADMINISTRATION NO.44 OF 2001
DOMINIC IMOO OTWANE ………………………..OBJECTOR
VERSUS
AFRICANUS IKAPEL OTWANE KIDERA ………APPLICANT
R U L I N G
A Grant of Letters of Administration Intestate to the Estate of Peter Otwane (the Deceased) was made to Africanus Ikapel Otwane Kidera (the Applicant) on 4th June 2002. Through summons dated 31st March 2006 the Applicant had moved Court for confirmation of that Grant.
Dominic Imoo Otwane (The Protestor) objects to the proposed confirmation of Grant and swore an Affidavit in Protest on 17th January 2014. That protest would be pursuant to Rule 40(b) of The Probate and Administration Rules.
The Applicant never responded to that protest nor did he attend the hearing notwithstanding that he had been duly served with a hearing notice.
In his Affidavit in protest, the Protest asserts that he is the biological son of the Deceased. It is his wish that each of the children of the Deceased get an equal share of 4. 8 hectares. He protests that the Applicant proposed to give him land parcel South Teso/Amukura/2884 measuring 0. 70 when in fact he is residing on South Teso/Amukura/1445 (perhaps South Teso/Amukura/445?). He also makes the point that South Teso/Amukura/2884 had already been given to one Andrew Apadet by the Deceased.
The Affidavit evidence of the Protest is not contested and I will take it that the Applicant is indeed a son of the Deceased. Reading the Applicants Affidavit in support of the summons for confirmation, one quickly notices that the share of the Protester is the smallest in acreage; and by far. It is proposed that he gets 0. 70 hactares while his brothers shares are as follows:-
Jacob Etori - 10 hectares
South Teso/Amukura/438 & 445
Nicholas Oita - 10 hectares
South Teso/Amukura/445
Francis Ejon - 10 hectares
South Teso/Amukura/438
Fred Ipaa - 6 hectares
South Teso/Amukura/445
Africanus Ikapel Otwane - 7. 35 hectares
South Teso/Amukura/1563,590 & 2853
On the face of it the proposed distribution is patently unfair to the Protestor.
7) Rule 41(2) of The Probate & Administration Rules empowers the Court, upon hearing an application for confirmation and a Protest, to refer back the Application to the Applicant for further consideration. I choose to refer the Application back to the Applicant to make a fresh proposal on distribution in which he shall give the Protestor an equitable share of the Deceased Estate bearing in mind that each child of the Deceased would, normally, be entitled to an equal share of his/her father’s Estate. The Court takes this course because the proposed shares of some of the other beneficiaries appear to be on more than one parcel of land and for this Court to make a Court order for redistribution without knowledge of the situation of the ground may result in unnecessary hardship to the beneficiaries.
8) The Applicant shall file an affidavit with the new proposal on distribution within 30 (thirty) days of this ruling to enable this Court make its final orders.
F. TUIYOTT
J U D G E
DATED, DELIVERED AND SIGNED AT BUSIA THIS 17TH DAY OF JULY 2014.
IN THE PRESENCE OF:
KADENYI ……………………………………………COURT CLERK
PROTESTOR PRESENT IN PERSON
N/A FOR APPLICANT