[2012] KEHC 4796 (KLR)
The court found that the Grant of Letters of Administration was obtained on the basis of incorrect information regarding the surviving children of the deceased. Both parties agreed that the particulars of the surviving children as stated in the petition were wrong. To safeguard the interests of all parties and...
Source-derived case information.
- Citation
- [2012] KEHC 4796 (KLR)
- Parties
- Applicant: Francis Wesonga Odipo; Applicant: John Mungayi Odipo; Respondent: Ali Omondi Malichi; Respondent: Maneya Makokha Osambayo
- Court
- High Court
- Court Station
- High Court at Kakamega
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 595 of 2009
- Procedural Posture
- Succession Cause / Ruling on Application for Revocation of Grant
- Outcome
- grant revoked; fresh grant to be issued jointly to applicants and respondent; costs to applicants
- Legal Topics
- Revocation of Grant, Letters of Administration, Fraudulent Obtainment, Beneficiaries of Estate
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Francis Wesonga Odipo
Applicant
John Mungayi Odipo
Applicant
Ali Omondi Malichi
Respondent
Maneya Makokha Osambayo
Respondent
Procedural Posture
Succession Cause / Ruling on Application for Revocation of Grant
Legal Issues
- 1 Whether the Grant of Letters of Administration was obtained fraudulently by providing incorrect information.
- 2 Whether the applicants, as sons of the deceased, are entitled to inherit the estate.
- 3 Whether the particulars of the surviving children of the deceased were correctly stated in the petition.
Ratio Decidendi
The court found that the Grant of Letters of Administration was obtained on the basis of incorrect information regarding the surviving children of the deceased. Both parties agreed that the particulars of the surviving children as stated in the petition were wrong. To safeguard the interests of all parties and ensure proper administration of the estate, the court revoked the Grant issued to the 1st respondent and ordered that a fresh Grant be issued in the joint names of the applicants and the respondent. The court held that the entitlement to inherit would be determined at the confirmation stage, not at this stage.
Court Disposition
grant revoked; fresh grant to be issued jointly to applicants and respondent; costs to applicants
Orders
- The Grant issued to Ali Omondi Malichi on 15.2.2010 is revoked.
- A fresh Grant to be issued in the joint names of the applicants and the respondent.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLICOF KENYA
IN THE HIGH COURT OF KENYA
AT KAKAMEGA
SUCCESSION CAUSE NO. 595 OF 2009
IN THE MATTER OF THE ESTATE OF ODIPO WANGOMA alias OTIBO WANGOMA (DECEASED)
B E T W E E N
1. FRANCIS WESONGA ODIPO
2. JOHN MUNGAYI ODIPO ………………………… APPLICANTS
V E R S U S
1. ALI OMONDI MALICHI
2. MANEYA MAKOKHA OSAMBAYO.....................RESPONDENTS
R U L I N G
The application dated 3. 9.10 seeks orders for revocation or annulment of Grant and cross-application for Grant. The Grant of Letters of Administration the subject matter of these proceedings was issued on 15/2/2010 to the Respondent, ALI OMONDI MALICHI as the administrator in the estate of the deceased ODIPO WANGOMA alias OTIBO WANGOMA. The application is supported by the affidavit of FRANCIS WESONGA.
The main ground in support of the application is that the Grant was obtained fraudulently in that correct information was not given.
The application is opposed to as per the replying affidavit of ALI MOHAMED MALICHI, the 1st Respondent. In a nutshell, the replying affidavit contends that land parcel No. Souty/Wanga/Lureko/181 that is the subject of these proceedings is ancestral land that belonged to their grandfather and was registered in the name of the deceased in his capacity as the eldest son to hold in trust.
The affidavit in support contends that the 1st and 2nd applicants are the only two sons of the deceased. That the 1st Respondent is a cousin and the 2nd Respondent a step-brother. The 1st Respondent in concedes that the deceased was his uncle. Paragraph No. 6 of the replying affidavit also raises the possibility that the 2nd Respondent is a stepson to the deceased.
The parties are therefore in agreement that the particulars of the surviving children of the deceased as stated in the petition are wrong.
The bone of contention is whether the applicants are entitled to inherit the estate of the deceased. This will be determined at the confirmation stage.
To safeguard the interests of all the parties herein, the grant issued to ALI OMONDI MALICHI on 15. 2.10 is hereby revoked. A fresh grant to be issued in the joint names of the applicants and the respondent.
Cots to the applicants.
Delivered, dated and signed at Kakamega this 16th day of February, 2012.
B. THURANIRA JADEN
J U D G E