[2023] KEHC 25034 (KLR)

In re Estate of Alfred Amolo Angengo (Deceased) (Succession Cause 34 of 2015) [2023] KEHC 25034 (KLR) (10 November 2023) (Ruling)

Neutral citation: [2023] KEHC 25034 (KLR)

Republic of Kenya

In the High Court at Busia

Succession Cause 34 of 2015

WM Musyoka, J

November 10, 2023

Ruling

1. There are 2 certificates of death herein, one indicating that the deceased herein died on 12th August 1993, and the other that he died on 22nd August 1994. There are 2 letters, on record, from the Chief of Ukwala Location, dated 16th May 2012 and 27th January 2015, respectively. That dated 16th May 2012, is addressed to the District Land Registrar, on succession to North Ugenya/Siranga/1159, whose proprietor is indicated as the late Alfred Amolo Agengo. He is said to have had married the late Josphine Adero, and that they did not have children. Dismas Ochieng Okwaro is said to be the legal heir to his estate. That of 27th January 2015, is addressed to court, and it conveys that the deceased and his late wife did not have children, and that he died possesd of North Ugenya/Siranga/467. The deceased is said to have had only 1 sibling, the late Okwaro Agengo, who had only 1 child, Dismas Ochieng Okwaro, who is described as the only surviving member of that family. He is said to be the legal heir to that estate.

2. Representation to the intestate estate was sought by the said Dismas Ochieng Okwaro, in his purported capacity as stepson of the deceased, through a petition filed herein, on 30th January 2015. He listed himself as the sole survivor of the deceased, and North Ugenya/Siranga/467 and 1159 as the assets that the deceased died possessed of. Letters of administration intestate were made to him, on 20th April 2015, and a grant was duly issued, dated 3rd June 2015. I shall refer to him as the administrator. The grant was confirmed on 17th August 2016, on an application dated 16th December 2015. The estate was devolved wholly upon Dismas Ochieng Okwaro. A certificate of confirmation of grant was duly issued, dated 17th August 2016.

3. An application for revocation of grant, dated 25th January 2019, was brought at the instance of Joanes Angengo Otunga, Joseph Onyango Otieno and Gaudensia Auma Odhiambo. I shall refer to them as the applicants. They seek revocation of the grant herein, as confirmed, and cancellation of the registration of Dismas Ochieng Okwaro, as proprietor of North Ugenya/Siranga/467 and 1159; and that a fresh grant be made to Joanes Angengo Otunga and Joseph Onyango Otieno. The grounds on the face of the application are that the proceedings to obtain the grant were defective in substance; the grant was obtained fraudulently by the making of false statements and by concealment of material facts; the cause was prosecuted and finalized without notice to the applicants; and the applicants had priority over the administrator; and are in exclusive possession of the estate land.

4. The affidavit in support is sworn by Joanes Angengo Otunga. He avers that he was a son of Alex Otunga, who was a stepbrother of the deceased; while Joseph Onyango Otieno was a son of Gabriel Otieno Angengo, a brother of the deceased; and Gaudensia Auma Odhiambo was a widow of Charles Owuor Angengo, a brother of the deceased. He states that the administrator was a son of Daudi Okwaro Angengo, who was a brother of the deceased. He further states that the father of the administrator was the eldest son in the 1st house of Angengo, and had been given various parcels of land by Angengo during his lifetime, at land adjudication, and the administrator had sold most of them for his own benefit. He states that the deceased had, during his lifetime, bequeathed North Ugenya/Siranga/1159 to him, that is Joanes Angengo Otunga, and Dominic Odhiambo Otieno, and based on that he had moved onto the land, and had started to use it, and that Joseph Odhiambo Otieno, a brother of Domnic Odhiambo Otieno also moved in and erected a house there. He avers that he had established that a certain Jenipher Auma Agengo had done succession, and had been registered as proprietor of North Ugenya/Siranga/1159, by transmission. They raised a complaint with the administration, and she was asked to hand over the certificate of death relating to the deceased, and the title deed she had obtained. Subsequently, they established that the administrator herein had been registered as proprietor by transmission, based on orders obtained in this cause, and that was done before the cancelation of the registration in favour of Jenipher Auma Agengo. He argues that, as at the time of the registration of the administrator as proprietor, the property, North Ugenya/Siranga/1159, was not estate property, for it was in the name of Jenipher Auma Agengo, and a transfer should have been done instead to the administrator, and not a transmission. He also states that the land was situated at Siaya, where the deceased was buried, and that he was surprised that the cause herein was initiated at the High Court at Busia, instead of the court at Siaya. He states that upon perusal of the court file herein, they established that the same was initiated without a certificate of death for the deceased, the deceased was indicated as having died on 22nd August 1994, instead of 12th August 1993, and they suspected that the Chief’s letter used had been forged. They raised a complaint with the administration, and the Chief disowned the letter, and a fresh letter was written to court. He stated that there was a threat to evict them, as court proceedings had been initiated for that purpose. He asserts entitlement to North Ugenya/Siranga/1159. He argues that the guarantors who signed the petition papers for the administrator were actually employees of the administrator’s Advocates, and were strangers.

5. Attached to that affidavit in support are several documents. There is a certificate of official search, dated 17th August 2011, in respect of North Ugenya/Siranga/1159, indicating the proprietor as Jenipher Auma Angengo, since 12th August 2011. There is another certificate of official search, dated 4th June 2012, in respect of the same property, indicating a registration in favour of the deceased, since 30th May 1990, with a restriction in favour of Gaudensia pending sorting out of family issues; and another restriction, dated 8th March 2012, in favour of Jenipher Auma Agengo as beneficiary pending finalization of succession proceedings. There is a green card for North Ugenya/Siranga/1159, showing that the deceased was registered proprietor sometime in 1990, then in 2011 there was a transfer to Jenipher Auma Angengo, and restrictions were subsequently registered in 2012. There is a certificate of death, indicating that the deceased died on 12th August 1993. There is a copy of the letter, dated 27th January 2015, from the Chief, which was lodged herein with the petition. There is another letter, from the same Chief, dated 15th September 2017, which indicates that the administrator had not given the correct information concerning the estate, for the purpose of the letters that the Chief had issued earlier. It is indicated that the grandfather of the administrator, the late Angengo Amolo, had 3 wives. The 1st wife was Sabina Akech, whose children were Daudi Okwaro Angengo, Alfred Amolo Angengo, Gabriel Otieno Angengo and Charles Owuor Angengo. Anyango Nyar Abach was the 2nd wife, and the mother of Alex Otunga Angengo. Angengo Nyar Rabala was the 3rd wife, and the mother of Were Angengo. It is indicated that Daudi Okwaro Angengo was the father of the administrator; while Gabriel Omolo was the father of Domnic Odhiambo, Onyango Joseph and Juma Otieno, Domnic had died and was survived by Ogayo Domnic; and Charles Owuor Angengo was survived by a widow, Gaudensia Auma. Joanes Angengo Otunga is identified as a son of Alex Otunga from the 2nd house, and was claiming that North Ugenya/Siranga/1159 was given to him, and Gaudensia Auma and Joseph Onyango, by the deceased during his lifetime, and that was where they resided. There is a copy of the plaint in Busia ELC No. 5 of 2017, being a suit by the administrator, against the applicants, seeking vacant possession of North Ugenya/Siranga/1159. There is a copy of the family tree of the family of Angengo Amolo.

6. The reply to the application was by Dismas Ochieng Okwaro, the administrator of the estate herein. It takes the form of an affidavit, sworn on 25th March 2019. He avers that that Alex Otunga was from the 3rd house of the original Angengo, and he has his own land. He states that the deceased was from the 1st house, together with him, and the land in question, by custom belonged to the 1st house, and Alex Otunga was not entitled to it. He asserts that Joseph Onyango Otieno was not a biological child of Gabriel Onyango Angengo, and that his mother came into her marriage with the late Gabriel, when the said Joseph Onyango Otieno was 10 years old. She allegedly stayed briefly tehn left and went back to the father of Joseph Onyango Otieno. Joseph Onyango Otieno then returned in 2016, and went to stay at the house left behind by Domnic Odhiambo, the son of the late Gabriel, that is to say North Ugenya/Siranga/242, where he built a permanent house, before moving into North Ugenya/Siranga/1159. He states that he could not restrain him, as the land was still under the name of the deceased, and he needed to have representation to enable him protect the estate. It was after he obtained representation, that he filed ELC No. 5 of 2017, seeking vacant possession. He avers that Gaudensia Auma Odhiambo was not a widow of Charles Owuor Angengo, but the wife of an Ojwang Mwalo, from the Radier clan of Kamrembo Siwadhe, and that she had only been contracted to take care of Charles Owuor when he was ailing. He states that Charles Owuor sold his land, North Ugenya/Siranga/99, to one Eric Oduor. He then allowed Charles Owuor to live in one of the houses until he died in 2008. He states that the patriarch, Angengo, had 3 wives, and that the sons from the 1st house were Okwaro David, Alfred Amolo, Gabriel Otieno and Charles Owuor. The other 2 houses had 1 son each, being Were and Otunga. The late Angengo shared his land amongst his wives, and boundaries were marked on the ground. He avers that Joanes Angengo Otunga had enough land, being North Ugenya/Siranga/243, 282 and 470, and that he sold North Ugenya/Siranga/243 to one Peter Lelo. He asserts that Joanes Angengo Otunga had always resided on North Ugenya/Siranga/282, until 2015, when he moved into North Ugenya/Siranga/1159, and built a semi-permanent structure there. He accuses him of using his base in North Ugenya/Siranga/1160, to encroach upon North Ugenya/Siranga/1159, by building a pit latrine there. He avers that at one time he lost documents relating to the property of the deceased, and Jenipher Auma Angengo used them to cause her registration as proprietor of North Ugenya/Siranga/1159. He made a report to the authorities, and the registration was cancelled, after which he initiated the current succession proceedings. He avers that he is elderly, and that was why he filed the cause at Busia rather than at Siaya. He asserts that the deceased died on 22nd August 1994, and that he initiated the cause using certificate of death No. 0184216. He defends the letters from the Chief, which he used to initiate the cause, arguing that they carried correct information. He dismisses the applicants as land grabbers, saying that Joanes Angengo Otunga acquired North Ugenya/Siranga/1160 strategically, so as to use it as a base to encroach on North Ugenya/Siranga/1159.

7. He has attached a copy of a certificate of official search for North Ugenya/Siranga/242, dated 14th January 2019, to demonstrate that the same was registered in the name of Gabriel Onyango Angengo, on 11th September 1977; a copy of the plaint in Busia ELC No. 5 of 2017; a family tree chart for the household of Angengo Amolo; a certificate of official search for North Ugenya/Siranga/1159, showing him as registered proprietor since 4th October 2016; copy of certificate of death No. 0184216, dated 18th December 2014, showing that the deceased passed on on 22nd August 1994; a copy of the letters of administration intestate issued to him in 2015; and the letter from the Chief dated 16th May 2012.

8. The applicants withdrew that application, dated 25th January 2019, on 15th January 2020. Subsequently, the administrator filed an affidavit of accounts, on 28th April 2020, indicating that the estate had been transmitted, and the administration completed, and praying that the cause be closed. The file was formally marked as closed, by orders made on 17th September 2020.

9. In a curious twist, the 3 applicants, filed a fresh summons for revocation of grant, on 14th September 2022, of even date. They seek similar prayers, save that they joined Evans Lawrence Odhiambo to the proceedings, and added North Ugenya/Siranga/467 to their claim. They also added an alternative prayer, that the certificate of confirmation of grant be revoked or cancelled. The new application is founded on the same grounds and facts as the withdrawn application, except for a few new issues. One, it is alleged that the administrator had identified himself as a stepson of the deceased. Two, that the deceased had settled Charles Owuor Angengo and Gaudensia Odhiambo on the land, before he died, and the said Gaudensia was on the land to date.

10. The response by the administrator is a replica of his reply to the withdrawn application.

11. The applicants, jointly, swore a supplementary affidavit. They aver that the deceased was not in good terms with the administrator, and their relationship had completely broken down. Things were so bad that when the deceased died, the administrator did not participate in the burial arrangements, did not attend the funeral, and was busy working on his farm on the day of the burial. They explain that the deceased had a wife, Josephine Adero Amolo, who also died, and the administrator did not attend her burial. They aver that the deceased had lived on the land, with his brother Charles Owuor Angengo, who had a daughter called Majuma, by his wife Adikinyi, and the said Majuma was the mother of Jenipher Auma Angengo. They aver that the said Jenipher Auma Angengo, a granddaughter of Charles Owuor Angengo, conspired with the administrator, and acquired the estate fraudulently. They assert that they were the ones who reported the intermeddling with the estate by the said Jenipher, and it was not the administrator. It is alleged that the late Angengo had not allocated land to his 3 houses, for he and his wives were long dead before the demarcation and adjudication exercise happened, for the same was conducted in 1971. They say that it was the administrator who was in charge of the exercise on behalf of the extended family. They accuse him of selling land to various individuals, who included Erick Oduor, Onyango Odako, Dan, Oloo Wamura, Nyadondiek, Onyanyo Otieno Omuya, Okado, Abiero, Steven Obala and William Orega. It is averred that Charles Owuor Angengo built houses for his wives, Adikinyi and Gaudensia, on the land belonging to the deceased, which stand to date. They further state that the administrator was not entitled to assert customary law rights over the property. They have attached handwritten notes of what they say were the resolutions before the County Commissioner, to have North Ugenya/Siranga/1159 reverted to the estate, from the registration in favour of Jenipher Auma Angengo.

12. The application was canvassed by way of viva voce evidence. The testimonies were given by Dismas Ochieng Okwaro, Joanes Angengo Otunga, Joseph Onyango Otieno, Evans Lawrence Odhiambo and Gaudensia Atieno.

13. Dismas Ochieng Okwaro, the administrator, testified that the deceased was a brother of his own father, who, although married, did not have a child. He said that he had land, and when he died, it was him who did succession to that land, and the same was devolved to him. He said that all the 3 wives of his grandfather, Angengo, had their own lands, and that the deceased got his land from his mother’s house, and so did he. He stated that Gaudensia had been brought in to assist Charles Owuor, but she was not a wife of Charles Owuor, and she did domestic duties as a maid. He said that Joanes Angengo Otunga was a child from the third house. He asserted that he was the closest relative of the deceased alive. He mentioned that Ogwayo was a son of Gabriel Otieno, who was his own brother. He conceded that he did not list Ogwayo as a survivor. He said that Josephine Adero was living within North Ugenya/Siranga/1159, when he sought succession, and so was the wife of Charles Owour. He said that he was the one who had allowed Charles Owuor to reside on the land, as he had sold all his property, and did not have any land. He stated that Gaudensia was a worker for Charles Owuor, and had come into assist him, but he had no house there, the house was built later on by Gaudensia. He stated that Joseph Onyango Otieno and his mother were chased away from the land, and that the mother got married elsewhere, and that he only came back later. He conceded that he did the succession alone, and did not mention anyone else in his papers. He said that at confirmation, he did not see the need to involve the applicants. He conceded that he had obtained a title deed, and he had filed a suit to evict them. He said that he did not know Jenipher Auma Angengo, and was not aware that she had a title deed to the land. he stated that Charles Owuor had no wife, and after his death, Gaudensia remained on the land, claiming to be his wife. He said Charles Owuor was a brother of the deceased. He had sold his land and went to Uganda, and when he came back he invited him to settle on North Ugenya/Siranga/1159.

14. Joanes Angengo Otunga followed. He said that the Ogwayo, that the administrator referred to, was Evans Otieno Ogwayo, who was one of the applicants. He said that he resided on North Ugenya/Siranga/1160, and not North Ugenya/Siranga/1159. He asserted that the deceased had given him and Domnic North Ugenya/Siranga/1159. Domnic died. He could not recall when the gifting was done. He stated that the event was at the house of the deceased, now occupied by Gaudensia, and added that all those present at the meeting have since died, except for him. He said that he was a descendant of the 2nd house, while Domnic was from the 1st house, from which the administrator also came. He stated that Domnic was closer to the deceased than the administrator, as he was a brother of the deceased, and, therefore, an uncle of the administrator. He asserted that Charles Owuor had a wife, who died without issue. It was after that wife died that Gaudensia came into the picture, as a wife of Charles Owuor. 2 houses were built on the land, by Charles, for the first wife and for Gaudensia. He asserted that Charles had come to the land of his family. He stated that Joseph Onyango was a son of Gabriel Onyango, and was from the 3rd house, and that Evans was a grandchild of the said Joseph Onyango. He said that he was not aware whether succession had been done to the estate of Charles Owuor. He stated that Joseph took the place of his brother, Domnic Odhiambo. He was also not aware whether succession had been done to the estate of Domnic Odhiambo. He said that the said Joseph was a son of Alfred, and a cousin of the administrator. He described Gaudensia as the second wife of Charles Owuor. He said that Charles and the deceased were brothers, and lived together on North Ugenya/Siranga/1159, and that the houses that Gaudensia lived in were constructed by Charles Owuor.

15. Joseph Onyango Otieno testified next. He was a son of Gabriel Otieno Angengo, who he said was a brother of the deceased, from the same mother. He said Domnic Odhiambo Otieno was his own brother, being a son of Gabriel Otieno. He described the administrator as a son of David or Daudi Okwaro Angengo, who was a blood brother of the deceased. He stated that he lived within North Ugenya/Siranga/1159, and occupied the entire piece of land. He said that his own father had his land. He said the deceased had no wife, nor children. He said that he entered North Ugenya/Siranga/1159 in 2015. He said that the deceased had given the land to Domnic and Joanes in 1989, but when Domnic died he moved in and took his place. He said that he was 5 years old in 1989. He said Domnic died in 2004, and by then he had not taken possession of the land. He described the administrator as a nephew of the deceased. Evans Lawrence Odhiambo stated that he was a son of Domnic, and was administrator of his estate. He said that he would like to take the share due to his father from North Ugenya/Siranga/1159. Gaudensia Atieno said that he lived on the land belonging to Charles Owuor, her husband. She said that he had paid dowry for her. She said that she stayed with him as a servant, during his illness until he died. Then again said that she stayed with him as a wife, and not as a servant. She added that the deceased and Charles Owour were brothers. She asserted that the owner of the land was Charles Owuor. She described the deceased as her son.

16. At the end of the oral hearing, both sides filed written submissions, which I have read through, and noted the arguments made. The parties did not cite any legal authorities to back their submissions, save that the applicants argued that “sections 39(1) c&d, 42 (a), 66 (b) and 76,” of an undisclosed statute, entitled them to the land on account of being related to the deceased, and on account of having settled on the land during his lifetime.

17. I will start with the more mundane straightforward issues, and after that I shall address the more complex.

18. Let me begin with the issue around the filing of this suit at Busia High Court, while the property is situated within Siaya County. There is no dispute that the estate in question is situate within Ugenya of Siaya County, and not Busia County. There is a High Court at Siaya. It was established there to handle disputes that emanate within the bounds of that County. There should be no excuse for filing a suit outside the boundaries of that County. The administrator argues that the Busia High Court is closer to his home than the Siaya High Court. That may well be so, but he is a resident of Siaya County, and not Busia County, and the matter should be handled within his County of residence. The records relating to the assets in dispute are housed within Siaya County, and the officials having custody of those records are at Siaya, not Busia. I shall determine the dispute before me, on its merits, but I shall thereafter order transfer of the matter to where it ought to have been filed.

19. The other issue is around the date of the death of the deceased died, between 22nd August 1994 alleged by the administrator, and 12th August 1993, alleged by the applicants. Both sides have supporting certificates of death. One of them has to be genuine, and the other false. Whatever the case, it would be a storm in a tea cup. The bottom-line is that the deceased is dead, and that that fact is not disputed by either side. Whether he died on 12th August 1993 or 22nd August 1994 is, in my view, of no moment.

20. The other issue is around the application of customary law. The administrator rests his claim on that law, on the basis that, under the customs of his community, North Ugenya/Siranga/1159, ought to devolve upon the house from which the deceased hailed, and as he, according to him, was the sole survivor in that house, he was solely entitled to it. The deceased herein died in 1993/1994. By then the Law of Succession Act, Cap 160, Laws of Kenya, had come into force. Its effective date was 1st July 1981. The effect of its coming into force, by dint of section 2(1), was to oust the application of customary law on administration and distribution of estates, and to bring the same under the provisions of the Act. Sections 5(1) and 34 provide some window for application of customary law, but none of the 2 apply here. Section 5(1) would only apply where there is a written or oral will. It has not been alleged or proved that the deceased had made a will. Section 34 of the Act applies to property situated in areas specified in a gazette notice published in 1981, Siaya was not in that gazette notice. So, customary law does not apply here at all. The applicable law is the intestacy provisions in Part V of the Law of Succession Act.

21. The summons for determination is for revocation of grant. The discretion to revoke grants is given under section 76 of the Law of Succession Act. There are 3 general grounds: challenges with the manner the grant was obtained, problems with administration of the estate, and the grant having become useless and inoperative. The grounds herein appear to revolve around the first general ground. the complaint is that the grant was obtained secretly and in a process that excluded some persons who were also entitled to a share in the estate. That is covered under section 76(b)(c) of the Act, which makes non-disclosure, misrepresentation and fraud a ground for revoking the grant. Failing to disclose persons who are also entitled to a share in the estate, amounts to concealment of the existence of those persons to the court. It also amounts to fraud, where their names are suppressed, so that the sole applicant gets to be the person inheriting] everything. It amounts to misrepresentation, for it creates the wrong picture or impression in the mind of the court, for distribution is based on how individuals were related to the deceased, and where some are not disclosed, an impression is created that they do not exist, and distribution is done excluding them.

22. Section 76(a) is also relevant. It makes substantive defects in the process of obtaining representation a ground for revocation. Whereas section 76(b)(c) is about statements made by the administrator in his petition, section 76(a) is about the formalities and the processes, such as obtaining consents, renunciations and filing affidavits, so that where some of these processes are omitted, then the process would be defective. Some of these procedural requirements serve the purpose of accountability, transparency and inclusiveness, which are bywords in the Constitution of Kenya, 2010. What ought to go into an application or petition for representation is set out in section 51(2) of the Law of Succession Act and rule 7(1) of the Probate and Administration Rules. Omission of the material specified in these provisions would amount to a defect in the process. Rules 7(7) and 26 of the Probate and Administration Rules are also relevant. They talk about consents and renunciations of survivors being obtained, and affidavits being filed where such cannot be obtained. They also provide for issuance of citations in appropriate cases. These devices are designed to ensure that all entitled have notice of the proceedings, and have consented to the matter proceeding in the manner adopted by the petitioner. Failure to obtain the consents or renunciations, or to file the affidavits, or to issue the citations, would amount to defects in the process, for which the grant could be revoked.

23. I will start with section 51(2)(g) of the Law of Succession Act and Rule 7(1)(e) of the Probate and Administration Rules, and follow with Rules 7 and 26. The parties herein have proceeded on the basis that the deceased died intestate, and, therefore, the relevant provisions are those relating to administration in intestacy. Under section 51(2)(g), it is provided that “An application shall include information as to – in cases of total or partial intestacy, the names and addresses of all surviving spouses, children, parents, brothers and sisters of the deceased, and of the children of any child of his or hers then deceased…” Under Rule 7(1)(e) of the Probate and Administration Rules, it is provided “… the application shall be by petition … supported by an affidavit … containing … the following particulars – in cases of total or partial intestacy – the names, addresses, marital state and description of all surviving spouses and children of the deceased, or where the deceased left no spouse or child, the like particulars of such persons who would succeed in accordance with section 39(1) of the Act …”

24. The question then is, did the administrator herein comply with these 2 provisions, and provide the particulars anticipated in them? He only disclosed himself, as sole survivor, describing himself as a stepson. Was he a sole survivor? Should he have disclosed other survivors? Both sides have placed on record a family tree, and are in agreement on the lineages connecting the deceased, the administrator and the applicants. There is agreement that the deceased had contracted a marriage, which had not produced a child or children. The family tree starts with the patriarch, Angengo. He had 3 wives. The deceased was from the 1st house, and that is also the same house to which the administrator belongs, and so does 2 of the applicants, Evans and Joseph. The other applicant, Gaudensia, claims to be a widow of another member of the 1st house, although her status is contested by the administrator. The other applicant, Joanes, belongs to one of the other 2 houses. It is also alleged that Jenipher Auma Agengo was a granddaughter of Charles Owuor Angengo. That would mean that the deceased was the blood brother of Charles Owuor, the alleged husband of Gaudensia and the grandfather of Jenipher Auma Agengo; of Gabriel Otieno Angengo, the father of 2 of the applicants, Joseph and Evans; and Daudi Okwaro Angengo, the father of the administrator. That would also mean that the administrator was not the sole survivor of the deceased, for there were other claimants to shares in that property from the house from which the deceased hailed. So, he should have disclosed them in his petition.

25. What about the status of Gaudensia? Was she really a widow of Charles Owour Angengo, the brother of the deceased? It was testified, by the administrator, that she was not a spouse of his uncle, but a person who had been brought in to nurse him during his final illness. She testified in a manner that presented some element of ambivalence. During examination-in-chief, she stated that the late Charles Owuor Angengo was her husband. Then, during cross-examination, she said that she had come in as a servant and cared for him till death, then later said she did not come in as a servant, but as a wife, and dowry had been paid. The other applicants appeared to me to be too young to know whether there had been a marriage or not, and that leaves me with the testimonies of the administrator and Gaudensia. What I find curious is that the administrator let Gaudensia to remain on the land and in the compound of his uncle undisturbed, that is after his death. That is something strange to do, if the allegation is that that person is a stranger to the family. If she had been brought in the picture as a nurse or caregiver to Charles Owuor Angengo during his illness, then her services terminated with his death. The fact that she remained, and the administrator, or other family members, did not find it necessary to ask her to leave, speaks volumes. I am inclined to conclude that she was more than a servant or nurse or minder of Charles Owuor Angengo, and to hold and find that she was in fact his spouse. She was part of the 1st house, and the persons entitled to stake claim to the estate of the deceased brother of her husband.

26. What about joanes Angengo Otunga? He belongs to the 2nd house. His father was a half-brother of the deceased, called Alex Otunga. In the scheme of things, in section 39(1) of the Law of Succession Act, which applies here, Joanes Angengo Otunga is not entitled to inherit the estate of the deceased herein. He is a rank outsider, who would only be entitled to access that estate when there are no survivors at all in the 1st house. For avoidance of doubt, section 39(1) of the Law of Succession Act says:“Where an intestate has left no surviving spouse or children, the net intestate estate shall devolve upon the kindred of the intestate in the following order of priority – father; or if dead; mother; or if dead brothers and sisters, and any child or children of the deceased brothers and sisters, in equal shares; of if none half-brothers and half-sisters, and any child or children of the deceased brothers and sisters in equal shares … ”

27. This provision would mean that since the deceased herein was not survived by a spouse or child, his estate ought to devolve to his siblings, and if dead to the children of his siblings. All his siblings are dead, so the next in line take. For Charles Owuor Angengo, the share should go to his widow, Gaudensia, and granddaughter, Jenipher Auma Angengo. Gaudensia should not take directly, for wives or widows or sisters-n-law are not in the lineup given above. She will have to obtain letters of administration to the estate of Charles Owuor Angengo to be able to access her share in the estate of the deceased herein. However, Jenipher Auma Angengo, would be entitled to take directly, by dint of section 41 of the Law of Succession Act, but the presence of Gaudensia would mean that they have to take out letters of administration. For Daudi Okwaro Angengo, his share should devolve to his son, the administrator herein, who should be entitled to access the share directly, according to section 39(1) of the Act. For Gabriel Otieno Odhiambo, his share should go to his 3 sons, the late Domnic Odhiambo, Joseph Onyango and Juma Otieno. As Domnic Odhiambo is dead, his share shall devolve upon his estate, to be taken by Evans, and his siblings, if any. Joanes Angengo Otunga is not entitled under section 39(1), for his father was not a full brother of the deceased, but a half-brother, who could only come in in the absence of full brothers or their offspring.

28. Following from the above, it would mean that the administrator herein should have disclosed the brothers of the deceased in his petition, or their children, or their survivors or the administrators of their estates. Those to be disclosed should have been Gaudensia, Jenipher Auma Angengo, Joseph Onyango Otieno and Evans Lawrence Odhiambo. Their non-disclosure amounted to a substantive defect in the process, for the law expects total disclosure of the information contemplated in section 51(2)(g) and Rule 7(1). The application by the administrator was, therefore, defective in that respect. It was also fraudulent as it amounted to concealment of matter from the court and a misrepresentation of the true facts. The administrator misled the court to believe that he was the only person entitled to a share in that estate, when the truth was that he was not the sole survivor, the deceased had been survived by other individuals, from his mother’s house.

29. Let me now bring in Rule 7(7) and 26 of the Probate and Administration Rules. They are related. Rule 7(7) applies where the petitioner does not have preference or prior right or entitlement to administration over the other survivors. That does not apply here, since the administrator herein did not have a lesser right to apply compared with the rest. Gaudensia, as widow of a brother of the deceased, would have had a prior right over the nephews of the deceased, but only if she had taken out letters of administrators with respect to the estate of Charles Owuor Angengo, to clothe her with authority to assert his rights as a brother of the deceased. Without a grant to her husband’s estate, she becomes the least amongst the 5 claimants. The administrator is a cousin to Joseph Odhiambo, and so he has an equal right or entitlement to administration. Where there is an incidence of equal right or entitlement to apply for representation, Rule 26 would apply, which says:“26. Grants of letters of administration(1)Letters of administration shall not be granted to any applicant without notice to every other person entitled in the same degree as or in priority to the applicant.(2)An application for a grant where the applicant is entitled in a degree equal to or lower than that of any other person shall, in default of renunciation, or written consent in Form 38 or 39, by all persons so entitled in equality or priority, be supported by an affidavit of the applicant and such other evidence as the court may require.(3)....”

30. This provision expects a petitioner, with equal right with another survivor, who is not applying, to notify that other survivor of the application. The process of notification is that detailed in Rule 26(2), by way of filing a written consent or renunciation of the right to apply, in Forms 38 or 39, basically allowing the petitioner to go ahead. In default of such renunciation or written consent, the petitioner should file an affidavit, essentially to explain why he did not file the consent or renunciation, either because the other survivor is out of the jurisdiction or has refused to cooperate. The administrator did not file any of these documents. He did not comply with Rule 26 of the Probate and Administrations Rules, and his application was defective in substance.

31. The applicants also advance the argument that the deceased had gifted North Ugenya/Siranga/1159 to them. That is a very long short. I say so because no evidence was presented, in the affidavits or the oral narratives, to support that contention. Joanes Angengo Otunga could not tell the year when that gifting happened, and he had no witnesses to support him on that, as he testified that all those who were present were all dead, except for himself. Joseph Onyango, on his part, said that it happened in 1989. He was not privy to the meeting where the gifting happened. Indeed, he said he was only 5 years old in 1989. Evans Lawrence Odhiambo did not at all talk about it. He appeared to me to be the youngest of the applicants, and I doubt that he had been born by 1989. On her part, Gaudensia did not talk of any gifting. She asserted, instead, that the property belonged to her husband, Charles Owuor Angengo. I think the little I say about the alleged inter vivos gifting of North Ugenya/Siranga/1159, by the deceased to the applicants, the better.

32. The applicants also made a pitch that they were in possession of the land, and that that gave them priority in administration and inheritance. Occupation of a property belonging to a dead person does not confer any inheritance rights to those in possession. Indeed, possession or occupation of property belonging to a dead person, by any of the persons asserting inheritance rights, is an irrelevant factor. What matters is the familial relationship between the deceased and the heir, and entitlement is based on the criteria in Part V of the Law of Succession Act. The issue of rights accruing on occupation or possession of land belonging to another, would only arise in land cases, where the claimants assert entitlement or rights accruing by way of adverse possession. This is not a land matter, and the fact that the applicants are in occupation is of little value for succession purposes. If the applicants feel that rights have accrued to them by adverse possession, and they would like to assert that position, then the proper thing for them to do should be to move the court with jurisdiction, which is the Environment and Land Court or any of the enabled subordinate courts. The High Court has no jurisdiction over such rights, at all, including where the issue arises in probate proceedings.

33. On the employees of the Advocates for the administrator signing the guarantee forms in the application placed on record by the administrator, it was argued that was a defect in the process, for the said individuals were unknown to the family, and were strangers. This argument has no foundation in law. There is no provision in the Law of Succession Act, nor in the Probate and Administration Rules, which require that those guarantee forms are to be signed by relatives of the petitioner, or by persons who are known to the family. They can be signed by anyone, who is able to guarantee that, in the event of the petitioner being appointed administrator, and of misappropriating estate funds, they would reimburse the estate, or make good the loss suffered. That can be done by anyone, not necessarily family members, or relatives, or neighbours, or friends of the administrator. There was absolutely nothing wrong with Lydia Mokeira Nyokaye and Cynthia Kabonga Amwayi signing the guarantee forms, in the circumstances.

34. The final orders shall be as follows:a.That the grant made herein, on 20th April 2015, and issued on 3rd June 2015, to Dismas Ochieng Okwaro, is hereby revoked;b.That, as a consequence of (a), above, the orders made herein on 17th August 2016, confirming the grant of 20th April 2015, are hereby vacated, the certificate of confirmation of grant, dated 17th August 2016, is hereby cancelled, and the orders made herein on 17th September 2020, marking this file as closed, are vacated;c.That, as a consequence of (b), above, any and all transactions carried out on the basis or strength of the said certificate of confirmation of grant, dated 17th August 2016, are hereby cancelled, and the Land Registrar, responsible for Siaya County, is hereby directed to cancel any transactions relating to North Ugenya/Siranga/467 and 1159, including its transmission in accordance with the said certificate of confirmation of grant cancelled above, and to revert the property to the name of the deceased herein, Alfred Amolo Angengo;d.That I hereby appoint Dismas Ochieng Okwaro, Joseph Onyango Otieno, Evans Lawrence O. Odhiambo and Gaudensia Auma Odhiambo administrators of the estate of the deceased herein, and I direct that a grant of letters of administration intestate be issued to them;e.That the new administrators, that is to say Dismas Ochieng Okwaro, Joseph Onyango Otieno, Evans Lawrence O. Odhiambo and Gaudensia Auma Odhiambo, shall, jointly or severally, apply for confirmation of their grant in the next 45 days, and the matter shall be mentioned thereafter for compliance and directions;f.That, in that contemplated summons for confirmation of grant, the administrators shall include all the survivors of the deceased, including any females, being his nieces and grandnieces;g.That the file herein shall forthwith be transferred to the High Court of Kenya, sitting at Siaya, for the reasons that are documented in the body of this ruling, andh.That any party, aggrieved by these orders, has leave of 30 days, to appeal against the same, at the Court of Appeal.

DELIVERED, DATED AND SIGNED IN OPEN COURT AT BUSIA ON THIS 10TH DAY OF NOVEMBER 2023. WM MUSYOKAJUDGEMr. Arthur Etyang, Court Assistant.AdvocatesMr. Wanyama, instructed by Wanyama & Company, Advocates for the applicants.Mr. Bogonko, instructed by Bogonko Otanga & Company, Advocates for the administrator.