[2013] KEHC 2885 (KLR)
The court found that the application raised serious allegations of fraud, forgery, and misrepresentation in the process of obtaining the grant of letters of administration. Given the gravity and factual nature of the disputes—particularly the claim that the supposed deceased is alive and that the applicant's...
Source-derived case information.
- Citation
- [2013] KEHC 2885 (KLR)
- Parties
- Applicant: Enos Onyango Atendo; Respondent: Charles Odero Adage; Respondent: Leah A. Otieno
- Court
- High Court
- Court Station
- High Court at Kisii
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 311 of 2010
- Procedural Posture
- Succession Cause / Ruling on Summons for Revocation of Grant
- Outcome
- Matter to proceed to hearing for viva voce evidence; no final orders on revocation at this stage.
- Legal Topics
- Revocation of Grant, Fraud in Succession, Forgery of Documents, Probate and Administration, Intermeddling With Estate
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Enos Onyango Atendo
Applicant
Charles Odero Adage
Respondent
Leah A. Otieno
Respondent
Procedural Posture
Succession Cause / Ruling on Summons for Revocation of Grant
Legal Issues
- 1 Whether the grant of letters of administration was obtained fraudulently by making false statements and untrue allegations of fact essential in law.
- 2 Whether the applicant's name and signature were forged and included in the petition without his knowledge.
- 3 Whether the chief's letter and death certificate presented were fraudulent.
Ratio Decidendi
The court found that the application raised serious allegations of fraud, forgery, and misrepresentation in the process of obtaining the grant of letters of administration. Given the gravity and factual nature of the disputes—particularly the claim that the supposed deceased is alive and that the applicant's identity and documents were misused—the court determined that these issues could not be resolved on affidavit evidence alone. The appropriate course is to direct the parties to present viva voce evidence, allowing for cross-examination to test the veracity of the competing claims. The court therefore ordered that the matter proceed to hearing for oral evidence before any substantive...
Court Disposition
Matter to proceed to hearing for viva voce evidence; no final orders on revocation at this stage.
Orders
- Parties to take early dates for the taking of viva voce evidence.
- No substantive orders on revocation of grant until viva voce evidence is heard.
Full Case Text
Judgment text and source record
42 paragraphs
NO. 760
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KISII
SUCCESSION CAUSE NO.311 OF 2010
IN THE MATTER OF THE ESTATES OF DODI ATENDO ………… DECEASED
AND
ENOS ONYANGO ATENDO ………………………….……………….. APPLICANT
VERSUS
CHARLES ODERO ADAGE ………..…………. 1ST PETITIONER/RESPONDENT
LEAH A. OTIENO ………………………..……. 2ND PETITIONER/RESPONDENT
RULING
The applicant herein Enos Onyango Atendo filed a summons for revocation of grant dated 16th March 2011 expressed to be brought under section 76of the Law of Succession Act, Rules 44, 58, 63and 73of theProbate and Administration Rules, Order 40 Rules 1, 2, 3and10of theCivil Procedure RulesandSections 1A, 1Band3Aof the Civil Procedure Act, Cap 21of theLaws of Kenyaseeking orders THAT:-
The application be certified as urgent and service there within the 1st instance be dispensed with. (sic)
The Grant of Letters of Administration issued to the Petitioner/
Respondent herein on the 18th day of January 2011 in the estate of the above named Deceased be revoked and or annulled.
There be a conservatory Order of temporary order of injunction restraining the respondent herein from intermeddling in any manner adverse to the applicant with the Title No. KAMAGAMBO/
KANYAJUOK/819 pending hearing [and] determination of this
application.
The application was supported by an affidavit sworn by the applicant
HC (KISII) SUCCESSION CAUSE NO.311 OF 2010 - RULING NO. 760
dated 16th March 2011 and on the following grounds:-
The Grant was obtained fraudulently by making false statement.
The Grant was obtained by means of making untrue allegations of facts essential in point of law to justify the Grant thus:-
The purported deceased person herein is alive and is also known as ENOS ONYANGO ATENDO in whose name TITLENO. KAMAGAMBO/KANYAJUOK/819 is currently registered, hence no succession could obtain;
The applicants name has been included in the petition herein without his knowledge and his signature forged without his knowledge;
The chief’s letter presented herein is a total falsity as it purports that the applicant who is alive died in 1980.
The Death Certificate presented herein is a pure fraud;
The signature by YUCABETH ODIDA ATENDO is a forgery;
The signature by the sureties herein are a fraud and a forgery.
In his affidavit, the applicant says he was utterly shocked to find that his signature had been forged on documents in support of the succession cause filed in the court below. He alleges total fraud in the manner the grant in the lower court was obtained.
Now that I have had the opportunity to read the competing affidavits and the respective submissions, it is imperative that for a just decision to be rendered in this case, the parties must give viva voce evidence which shall be tested by cross-examination.
In the circumstances, the court directs parties to take early dates for the taking of viva voce evidence.
HC (KISII) SUCCESSION CAUSE NO.311 OF 2010 - RULING NO. 760
It is so ordered.
Dated and delivered at Kisii this 11th day of July, 2013
RUTH NEKOYE SITATI
JUDGE.
In the presence of:
Mr. Kisera (absent) for Appellant/Applicants
Mr. Owade for Respondent
Mr. Bibu - Court Clerk
HC (KISII) SUCCESSION CAUSE NO.311 OF 2010 - RULING