[2022] KEHC 10244 (KLR)

In re Estate of Daudi Isaka Nyaringe (Deceased) (Succession Cause 465 of 1996) [2022] KEHC 10244 (KLR) (12 July 2022) (Ruling)

Neutral citation: [2022] KEHC 10244 (KLR)

Republic of Kenya

In the High Court at Kisii

Succession Cause 465 of 1996

REA Ougo, J

July 12, 2022

IN THE MATTER OF THE ESTATE OF DAUDI ISAKA NYARINGE

Between

Agnes Kwamboka Isaka

Petitioner

and

Alois Nyambati Isaka

Objector

and

Lucia Nyakerario Omaya

Interested Party

Ruling

1. This cause relates to the estate of Daudi Isaka Nyaringe (‘the deceased’) who died at the age of 60 in 1991. Petition for grant of letters of administration intestate was filed by the widow Agnes Kwamboka Isaka. According to the affidavit in support of the petition the deceased was the proprietor of Central Kitutu/ Mwabundusi/265 (‘parcel 265’) and Central Kitutu/mwabundusi/242 (‘parcel 242’). She explained that the deceased was also known as Isaac Omaya. The deceased’s beneficiaries listed were:a)Agnes Kwamboka Isaka (widow)b)Paul Isaka Otwori (son)c)Cosmas Mogere (son)d)Douglas Nyangoya (son)e)Lawrence Omurwa (son)f)Nathan Onyangi (son)

2. The petitioner was issued with grant of letters of administration intestate which were later confirmed on October 23, 1997. The objector, has now filed summons for revocation or annulment of grant pursuant to section 76 (e) of the Law of Succession Act & rule 44 of the Probate and Administration Rules. The application seeks the following orders:4. That the honourable court be pleased to revoke and/or annul the letters of administration issued to Agnes Kwamboka Isaka, the petitioner/respondent herein on the April 17, 1997 and the certificate of confirmation of grant issued on the October 23, 1997. 5.That the Honourable Court be pleased to order for cancellation of all Titles arising out of the subdivision of Land Parcels Central Kitutu/ Mwabundusi/265 and Central Kitutu/mwabundusi/242 and have the same revert back to the name of the deceased.6. That the Honourable Court be pleased to enjoin the intended interested party herein in the instant succession objection proceedings.

3. The application is on grounds that the letters of administration were obtained fraudulently and by making of false statement and he also claimed that the petitioner failed to disclose the fact that the deceased was polygamous. The petitioner proceeded with the succession cause without involving the first house, particularly the first wife Rael Kwamboka Isaka. It was conceded that it indeed land parcel 242 belonged to the deceased however, he disputed the deceased’s ownership of parcel 265 claiming that it belonged to Isaac Omaya (who is also deceased). According to the objector, the intended interested party is the widow to the said Isaac Omaya. The objector in his affidavit in support of the summons for revocation of grant also included Rael Kwamboka Isaka and her two sons Peter Omaya Isaka and Alois Nyambati Isaka as beneficiaries of the deceased.

4. The petitioner filed her response vide her replying affidavit dated June 21, 2021. She averred that after Rael Kwamboka deserted her marital home she married the deceased in 1974. The said Rael Kwamboka left behind her son, Peter Omaya Isaka, however when the boy turned 2 years of age, Rael Kwamboka took him and lived with him until he was 8 years old when she returned him to live with the petitioner. She explained that initially parcel 242 was registered in the name of A Ongeti Omaya but the deceased purchased the land and the same was transferred to him. Parcel 265 on the other hand was registered in the name of her late husband’s name as it was an inheritance from his father.

5. She recalled that in 2008 Peter Omaya Isaka and the Objector went to her home and claimed for land. The area assistant chief, Mr Cosmas Mocha, summoned the petitioner to his office demanding that she subdivides a portion of parcel 242 to the objector and Peter Omaya Isaka. Parcel 242 was therefore subdivided into Central Kitutu/mwabundisi/1450 and 1451. She then transferred Central Kitutu/mwabundisi/1451 to the objector and Peter Omaya Isaka. The two later sold the land to William Omoro Ondari who made further subdivisions and sold a portion of the land to Sarah Kerubo Osoro. According to the petitioner Rael Kwamboka Kiobo is of sound mind and is married to one Joseph Kiobo Mongare.

6. The objector filed a further affidavit and denied that his mother Rael Kwamboka remarried. The objector also advanced that the petitioner never gave them land as claimed.

7. The court directed parties to give viva voce evidence. Alois Nyambati Isaka (Pw1) adopted his statement as his evidence in chief. He testified that the deceased was married to both the petitioner and his mother Rael Kwamboka. The deceased had 2 brothers Andrew Ongeti Omaya whom he claimed was Isaac Omaya and Patris Arosi. The three brothers jointly owned parcel Central Kitutu/Mwabundusi/264. Parcel 265 was registered in the name of Isaac Omaya and Parcel 242 in the name of the deceased. According to him the petitioner falsely claimed that Isaac Omaya and Daudi Isaka Nyaringe is one and the same person. He urged court to cancel the subdivisions arising out of the two parcels of land and the same to revert back to the deceased.

8. The petitioner testified as Dw1 and reiterated contents of her replying affidavit. Peter Omaya Nyangau (Dw2) testified that he was born in 1973 to the deceased and Rael Kwamboka and that they were 2 children but his sister Maria Kerubo died. He was brought up by the petitioner. Later in 1993 he got to know of the objector when the chief told him that the objector was his brother. Since the objector was his brother he decided to stay with him and the petitioner gave them land out of parcel 242. Dw2 testified that he later learnt that that someone was cultivating their shamba. Parcel 265 was the deceased’s land and he urged the court not to give the land to the objector who has already sold part of parcel 242.

9. Sabina Kemunto Abunga (Dw3) testified that she is the daughter to Charles Omaya. She explained that Andrew Omaya and the deceased were her brothers. The deceased had two wives, Rael Kwamboka and the petitioner. She testified that the deceased’s other names were Daudi Isaka Omaya and at times he used Nyaringe. She told court that the deceased had 2 shambas, a lower one and one on the upper portion. It was their father that gave the deceased the shamba.

10. John Koinange Okeyo (Dw4) adopted his statement as his evidence in chief. He testified that parcel 265 belonged to the deceased who was also known as Isaka Omaya. He testified that Lucia Nyakerario (intended interested party) occupies parcel 264 where her husband Andrew Ongeti Omaya was buried. On cross examination he testified that he was a neighbor of the deceased. Mogaka Francis Moseti (Dw5) testified that the deceased was his uncle and that his grandfather gave the deceased parcel 265.

Analysis and determination 11. After oral hearing, the parties filed written submissions. I have considered the pleadings, evidence and rival submissions by the parties. The central issue for determination is whether the objector has demonstrated a case for revocation of grant. The provisions of section 76 of the Law of Succession Act provides as follows:76. Revocation or annulment of grant 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 or of its own motion—a.that the proceedings to obtain the grant were defective in substance;b.that the grant was obtained fraudulently by the making of a false statement or by the concealment from the court of something material to the case;c.that the grant was obtained by means of an untrue allegation of a fact essential in point of law to justify the grant notwithstanding that the allegation was made in ignorance or inadvertently;

12. The objector argued that the deceased was not Isaac Omaya as claimed by the petitioner. However, there was no evidence adduced before the court to confirm his allegation that the deceased’s brother Andrew Ongeti Omaya was Isaac Omaya. On the contrary the deceased’s sister Dw3, testified that Isaka’s other names were Daudi Isaka Omaya and at times he used the name Nyaringe. She further testified that the deceased owned parcel 242 and 265, explaining that parcel 265 was transferred to the deceased from their parents.

13. The objector also contends that the grant should be revoked as Rael Kwamboka and her children were not listed as beneficiaries in the petitioner’s application for grant of letters of administration intestate. The petitioner conceded to the fact that the deceased was initially married to Rael Kwamboka. He however claimed that the said Rael Kwamboka abandoned the deceased and remarried and was therefore not a wife of the deceased. The deceased’s sister (Dw3) and Dw4 both testified that indeed Rael Kwamboka was initially married to the deceased but ran away when the deceased got sick. The statements from Rioma police station annexed to the petitioner’s replying affidavit dated June 21, 2021 show that the said Rael Kwamboka is now married to Joseph Keobo Mongare. I therefore find that the said Rael Kwamboka having remarried is not a wife and a beneficiary of the deceased.

14. However, in respect to Peter Omaya Isaka and Alois Nyambati Isaka, I find that the petitioner failed to include some of the deceased children, the objector and Peter Omaya Isaka, when she applied for grant. The petitioner failed to include them as beneficiaries yet they were the deceased children. This is supported by the evidence of Dw2 who testified that he got to know that the objector was his brother in 1993. The petitioner also gave part of parcel 242 to the objector because she believed he was the deceased’s son. The petitioner was therefore required to disclose to the court that the objector and Peter Omaya Isaka were the deceased’s children.

15. Although the petitioner’s non-disclosure of some of the deceased’s children is sufficient ground for revocation of grant, I decline to do so. Parcel Central Kitutu/mwabundisi/1451 which the petitioner transferred to the objector and Peter Omaya Isaka measured 0. 59 Ha. The petitioner was left with parcel Central Kitutu/mwabundisi/1450 measuring 0. 61 ha and parcel Central Kitutu/ Mwabundusi/265 measures 0. 16 ha. The petitioner is required to share parcel Central Kitutu/mwabundisi/1450 and parcel Central Kitutu/ Mwabundusi/265 between herself and her 10 children with the deceased. The petitioner in distributing the deceased’s estate amongst the deceased’s children was therefore fair as she took into account the fact that the deceased had children with Rael Kwamboka.

16. The objector’s denial that the parcel Central Kitutu/mwabundisi/1451 was not transferred to him and Peter Omaya Isaka did not help much in supporting his claim. The petitioner presented the transfer form confirming that parcel Central Kitutu/mwabundisi/1451 was transferred to the objector and Peter Omaya Isaka. A further transfer was registered showing the objector and Peter Omaya Isaka transferred the land to William Omoro Ondari upon receipt of Kshs 300,000/- as consideration. The objector cannot therefore squander his inheritance and then come to the court for revocation of grant so that the court aids his selfish pursuits. The objector was provided for when the petitioner transferred parcel Central Kitutu/mwabundisi/1451 to him and I therefore find that his application dated April 20, 2021 must fail. There shall be no orders as to costs.

DATED, SIGNED AND DELIVERED AT KISII THIS 12TH DAY OF JULY 2022. R E OUGOJUDGEIn the presence of:Mr Ndemo for the objectorMr Momanyi for the respondentMs Aphline court assistant