[2017] KEHC 10127 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT HOMA BAY

SUCCESSION CAUSE NO.01 OF 2017

FORMERLY HOMA BAY SRM SUCC. CAUSE NO.140 OF 1995

IN THE MATTER OF THE ESTATE OF:

DANIEL WAGA OPIYO............................................................DECEASED

AND

MATHEWS OLOO OKUNDI............................OBJECTOR/APPLICANT

VERSUS

ENOS AYAL NDEDE............................1ST PETITIONER/ RESPONDENT

CHARLES OGUNA ONGONG.............2ND PETITIONER/RESPONDENT

RULING

1. Upon the death of DANIEL WAGA OPIYO (Deceased) on 20th May 1983, ENOS AYAL NDEDE (1st Petitioner) and CHARLES OGUNA ONGONG (2nd Petitioner) applied for, and obtained grant of letters of administration of his estate, in their capacity as sons of the deceased.

2. The grant was subsequently confirmed on 19th April 1996 and the asset namely Land Parcel No. EAST KARACHUONYO/KOBUYA/1413 was shared equally between the two administrators.

3. Subsequently on 1st November 2016, MATHEWS OLOO OKUNDI (Applicant) filed a summons seeking revocation/annulment of the grant. He also urged the court to nullify the two parcels EAST KARACHUONYO/KOBUYA/1439 and 1438 which came into being as a result of the subdivision and that it ought to revert to the original number of EAST KARACHUONYO/KOBUYA/1413, and the applicant be allowed to carry out fresh succession.

4. The reason for seeking the orders is that the applicant is much closer to the deceased than the petitioners and ought to be given first priority in administering the estate. He accused the petitioners of misrepresenting themselves as beneficiaries of the estate saying ENOS AYAL NDEDE is a stranger to the deceased’s family tree.

5. As for the 2nd petitioner, he is said to be the child of WENSILAUS ONGONG from the 8th wife of OPIYO OGWANG who was the father of the late DANIEL WAGA OPIYO.

6. The applicant stated that his father was the grandson of the 5th wife of OPIYO OGWANG who sired two children namely DANIEL WAGA OPIYO and JERMINUS OKUNDI OPIYO.

He contends that his father was the 4th follower of the late DANIEL WAGA OPIYO.

7. The petitioners have raised a preliminary objection to the summons saying it is incurably defective and ought to be struck out as it contravenes the mandatory provisions of the statute of Limitation of Actions Act (Cap 22) and the Environment and Land Court Act No.19 of 2011 which totally divests this court of jurisdiction over the matter.

8. MR. MAGARA who appeared on behalf of the petitioners submitted that the action is time barred as 6 years had lapsed from the date the grant was confirmed and the asset distributed. He lamented that the applicant was bringing the action 30 years after the cause of action and this was bad in law and should not be allowed to stand.

9. Counsel also urged this court to consider the provisions of Section 30 of the Environment and Land Court Act No.19 of 2011 which provides that where a claim is to recover land relating to occupation and ownership, the only court with jurisdiction is the Environment and Land Court under the Constitution. It is his contention that the respondents have been in occupation of the parcel for the last 30 years and have obtained title, and must be presumed to be the rightful owners; so what the applicant seeks is not tenable.

10. In response, MR. OCHIENG who held brief for MR. ODINGO for the applicant urged the court to be guided by the provisions of Section 76 of the Law of Succession Actwhich provides that Grant can be revoked or annulled at any time.

11. Does the Limitation of Actions Act apply to application for revocation of grants?

12. MR. ODINGO filed a response to the preliminary objection saying this preliminary objection does not meet the test set out in the case of MUKISA BISCUIT MANUFACTURES COMPANY LTD –VS- WESTEND DISTRIBUTIORS LTD [1969] EA 696 that:-

“A preliminary objection is in the nature of what used to be a demeanour. It raises a pure point of law which is argued on the assumption that all facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion.”

13. It is the applicant’s contention that no pure point of law has been raised which if heard would finalize the matter nor is there any assumption that all the facts pleaded by either side are correct.

14. This is not a land dispute per se, although the subject matter is land. The applicant is not claiming ownership of the entire land, but contends that he ought to have been given priority as an administrator; and that the 1st petitioner had no right to the estate as he had no relationship with the deceased. Of course there is a very thin line between what per se would constitute a matter under the Environment and Land Act, visa vis the Law of Succession Act. However the linking strand is not so much a claim to ownership, as the omission in the administration of the estate by virtue of family lineage.

15. The issue of lineage and degree of consanguinity cannot be assumed, evidence will be required to ascertain the applicant’s assertion. The objection certainly does not meet the threshold set out by NEWBOLO L.Jin the MUKISA BISCUIT (supra) case.

16. There is also the issue regarding the application of the statute of limitation of actions in succession matters. If this was purely a motion focused on recovery of land then of course the action would be limited under the provisions of Section 7 of the Limitation of Actions Act. However this action is being brought to recover land of a deceased person who died intestate and then Section 9 (2) of the Statute of Limitation provides that:-

“(2) Where a person brings an action to recover land of a deceased person, whether under a will or intestacy, and the deceased person was on the date of his death in possession of the land, and was the last person entitled to the land to be in possession of the land, the right of action accrues on the date of death.”

Section 10 (2) further provides that if the person entitled to the preceding estate was notin possession of the land on the date of the determination of the estate or interest, then no action may be brought by the person entitled to succeed the estate after the end of twelve years from the date on which the action accrued or six years from the date on which the right of action accrued to the person entitled to the succeeding estate, whichever period ends last.

7. Yet these provisions must be considered in light of Section 16 which provides that:-

“The purposes of the provisions of this Act relating to actions for the recovery of land, an administrator of the estate of a deceased person is taken to claim as if there has been no interval of time between the death of the deceased person and the grant of the letters of administration.”

18. My understanding of the applicant’s complaint is that he ought to have been given priority as an administrator of the estate, and therefore finds refuge under Section 16 cited above. This is further boosted by Section 76 of the Law of Succession Actwhich provides that:-

“A grant of representation, whether or not confirmed, may at any time be revoked or annulled if the court decides, either on application by any interested party ....”

19. I need not say more, the writing is clearly on the wall and this preliminary objection cannot stand. It is dismissed with costs to the applicant.

Delivered and dated this 3rd day of November, 2017 at Homa Bay

H.A. OMONDI

JUDGE