[2021] KEHC 4681 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT KISUMU

SUCCESSION CAUSE NO. 3 OF 2019 (APPEAL)

IN THE MATTER OF THE ESTATE OF FREDRICK ADERO ODIERO – DECEASED

AND

MONICA AKOMO OLAYO .............1ST APPELLANT/APPLICANT/OBJECTOR

STEPHEN OLANG’O ONGOYA ......2ND APPELLANT/APPLICANT/OBJECTOR

VERSUS

EZEKIEL ODIERO ADERO.........................................RESPONDENT/PETITIONER

JUDGMENT

On 6th October 2019 the learned trial magistrate dismissed the Objector’s application which was seeking the revocation of the Grant that had been confirmed on 6th June 2018.

1. Being dissatisfied with the said Ruling, the Objector, MONICA AKOMO OLAYOand the Interested Party, STEPHEN OLANG’O ONGOYAfiled an appeal before this Court.

2. The Memorandum of Appeal raised the following grounds of appeal;

“1. The learned Trial Magistrate erred in both lawand fact in arriving at a decision which was notonly manifestly unjust but also against the weightof the evidence on record.

2. The Learned Trial Magistrate grossly misdirected himself in treating the evidenceon record before him superficially andconsequently coming to a wrong conclusionon the same.

3. The Learned Trial Magistrate misdirected himself in ignoring the principles applicablein the law of revocation of the grant and therelevant authorities.

4. The Learned Trial Magistrate erred in not considering the evidence presented beforehim in totality and in particular the evidencepresented on behalf of the Appellant.

5. The analysis of the evidence as per the rulingis extremely wanting in material respects.

6. The Learned Trial Magistrate misapprehended the evidence on record to a material degreeresulting in him arriving at a wrong conclusion.

7. The Learned Trial Magistrate failed to apply judicially and to adequately evaluate theevidence and exhibits tendered and therebyarrived at a decision unsustainable in law.”

3. On the basis of those grounds of appeal, the Appellants urged this Court to set aside the Ruling of the learned trial magistrate.

4. The subject matter of this appeal is a piece of land L.R. NO. KISUMU/ KARATENG/884(“the suit property”). The Appellants had broughtproceedings for the revocation of the confirmed Grant, which had given the suit property to the Respondent, EZEKIEL ODIERO ADERO.

5. The trial court held that the Respondent (“Ezekiel”) was not under any duty to specifically inform or even involve the Appellants in the process of the succession of the Estate of FREDRICK ADERO ODIERO.

6. The reason for that decision was that the Objectors and the Interested Party, (who are the Appellants herein) were not the dependants of thedeceased.

7. And when the trial court found that the suit property formed part and parcel of the estate of the deceased; and because Ezekiel had followed all the requisite processes leading up to the issuance and also theconfirmation of the Grant, the Appellant’s application (for revocation of the Grant) was dismissed.

8. In challenging the decision of the trial court, the Appellants have now submitted that Ezekiel had deliberately misled the court, by concealing the fact that the suit property belonged to the 1st Appellant.

9. It was the Appellants’ case that the copy of the death certificate which Ezekiel used when he instituted the succession cause was fraudulent.

10. The Appellants pointed out that whilst the death certificate used byEzekiel indicated that his father FREDRICK ODIERO ODERO, died on 20th July 2014, the correct position was that Fredrick died on 7th February 1994.

11. Secondly, the Appellants pointed out that Fredrick had exchanged the suit property with L.R. NO. KISUMU/KARATENG/888which had beenregistered in the name of Monica’s husband, JOSHUA OLAYO SEE. Ineffect, the Appellants were saying that whilst Fredrick was the registered proprietor of the suit property, he had given that property to Joshua; and in exchange, Joshua gave to Fredrick the Parcel No. 888.

12. The Appellants pointed out that it is because Fredrick had taken overParcel No. 888, that both Fredrick and his wife were buried on that parcel of land.

13. In the meantime, as Joshua had taken up the suit property, it was thereason why Monica had utilized the said property for over 40 years.

14. If the Respondent was allowed to retain Parcel No. 884, the Appellants pointed out that that would result in him having 2 properties, whilst the Appellants would be left with nothing.

15. In answer to the appeal Ezekiel reiterated that the Appellants were strangers to the estate of his late father, Fredrick.

16. He also denied that his father had exchanged the suit property for Parcel No. 888.

17. In that respect, I note that the Appellants had made it clear that at the time when Fredrick and Joshua exchanged the 2 parcels of land, Ezekiel was still a minor. Ezekiel did not respond to that assertion.

18. Ezekiel’s position was that the purported sale of a portion of the suit property, by Monica to Stephen Olang’o Ongoya, constitutedintermeddling with the free property of Fredrick.

19. However, Ezekiel went on to state as follows;

“3)That the sale agreements between the 1st Appellant and the Second Appellant onland parcel No. Kisumu/Karateng/884were made before the death of my fatherFredrick Adero Odiero.”

20. If, as the Respondent has said, the sale of the (whole or part of) suitproperty was conducted prior to the death of Fredrick, that transaction could not have constituted intermeddling with his estate.

21. The Respondent submitted that the Appellants had misrepresented themselves in the estate of the deceased, since they have no relationship with the deceased.

22. I have given careful consideration to the case of the Appellants but I failed to find any place where they asserted that they were relatives of thedeceased, and that their claim to the suit property was founded upon such relationship.

23. At all material times, the 1st Appellant said that her late husband hadexchanged his parcel of land with the suit property.

24. It is my finding that the Respondent never disputed the assertion that the Petition was founded upon quicksand! He did not answer to the issue concerning the date when the deceased passed away.

25. It is not possible that the deceased died on 7th February 1994, and again died on 20th July 2014.

26. Therefore, it is entirely possible that the very foundation of the Petition was a lie. I so hold because a Certificate of Death is a fundamentaldocument in a Succession Cause. Without proof of death, proceedings for succession of the estate of a deceased person cannot commence.

27. Accordingly, when the Appellants have cast doubt on the authenticity of the Certificate of Death which the Respondent utilized in the Petition for Grant of Letters of Administration, I hold the considered view that the proceedings founded upon the impugned document cannot standscrutiny.

28. In the result, and in order to allow the Environment & Land Courttime to determine the question concerning ownership of the suit property, I allow the appeal and revoke the Certificate of Grant which was issued to the Respondent.

29. Consequent upon the revocation of the Certificate of Grant, it follows that the Certificate of Confirmation of Grant lacks any leg to stand on.

Therefore, the said Certificate of Confirmation of Grant is also herebyrevoked.

30. Costs of the appeal are awarded to the Appellants, and shall be payable by the Respondent.

31. The Respondent will also pay to the Appellants, the costs of theapplication dated 23rd October 2018.

DATED, SIGNED AND DELIVERED AT KISUMU THIS 12TH DAY OF JULY 2021

FRED A. OCHIENG

JUDGE