[2019] KEHC 5224 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAKURU

SUCCESSION CAUSE NUMBER 294 OF 2001

IN THE MATTER OF THE ESTATE OF THE LATE GABRIELJAMES

OCHIENGKOUNAH ALIAS JAMES OCHIENG KOUNAH (DECEASED)

JAMES KOUNAH OCHIENG............ADMINISTRATOR/APPLICANT

AND

JANE PAMELA ANYANGO...............................................RESPONDENT

RULING

1. The application before Court is dated 29th May, 2012. The prayers sought are;

1. Spent

2. THAT this Honourable court do make a declaration that the life interest and benefit of Jane Pamela Anyango, has extinguished and ceased to take effect.

3. THAT the Certificate of Confirmation of grant issued on the 25th February 2011 be reviewed in relation to NKU/MUN BLOCK 23/10 and one (equal) share of KCB, ICDC, HFCK, STANDARD CHARTERED SHARES, FUNDS IN KCB ACCOUNT NUMBERS 200845622 AND 345034461024, TERMINAL DUES (IF ANY) should revert to the Estate.

4. THAT a Certificate of Confirmation of Grant be issued as follows

i) NKU/MUN BLOCK 23/10 be registered in the Name of James Kounah Ochieng to hold in trust for the benefit of himself and 1. Jennifer Njoki Ochieng 2. Caroline Atieno 3. Emmanuel Nganga 4. Moses Aketch 5. Martha Mumbi 6. David Nyalia.

ii) KCB, ICDC, HFCK, STANDARD CHARTERED SHARES, FUNDS IN KCB ACCOUNT NUMBERS200845622 AND 345034461024, TERMINAL DUES (IF ANY) be distributed equally among1. Jennifer Njoki Ochieng 2. Caroline Atieno 3. Emmanuel Nganga 4. Moses Aketch 5. Martha Mumbi 6. David Nyalia 7. James Kounah Ochieng

5. THAT the cost of the application be provided for.

2. The application is premised on grounds that;

a) THAT the Certificate of Confirmation of Grant was issued on 25th February 2011.

b) THAT in the mode of distribution Jane Pamela Anyango was to have a life interest upon NKU/MUN BLOCK 23/10.

c) THAT Jane Pamela Anyango was also to inherit one (equal) share in KCB, ICDC, HFCK, STANDARD CHARTERED SHARES, FUNDS IN KCB ACCOUNT NUMBERS 200845622 AND 345034461024, TERMINAL DUES (IF ANY).

d) THAT Jane Pamela Anyango has since remarried to one Jason Christopher Gregory on 11th December 2010 at Nassau county Florida, USA.

e) THAT the life interest of Jane Pamela Anyango on NKU/MUN BLOCK 23/10 extinguished and ceased to take effect on the 11th December 2010.

f) THAT the interest, inheritance/and or benefit of Jane Pamela Anyango in KCB, ICDC, HFCK, STANDARD CHARTERED SHARES, FUNDS IN KCB ACCOUNT NUMBERS 200845622 AND 345034461024, TERMINAL DUES (IF ANY) extinguished and ceased to take effect on 11th December 2010.

g) THAT Jane Pamela Anyango deliberately and intentionally concealed and/or failed to disclose the existence of the marriage to Jason Christopher Gregory when the estate was being distributed on 25th February 2011.

h) It is in the best interest of justice for orders sought to issue.

i) No prejudice shall be suffered by the Respondent if the orders sought are issued.

3. It is also supported by the affidavit of James Kounah Ochieng sworn on 29th May, 2012.

4. In a nutshell, the gist of the application is that a certificate of confirmation of grant in respect of the estate of Gabriel James Kounah alias James Ochieng Kounah was issued on 25th February, 2011.

5. Among the beneficiaries was Jane Pamela Anyango a wife and she was to have a life interest in property known as NKU/MUN BLOCK 23/10 and also to inherit shares in KCB, ICDC, AFCK, Standard Chartered Bank, Monies in KCB and terminal benefits.

6. It is averred that Jane has since remarried to one Jason Christopher Gregory on 11th December, 2010 at Nussau County Florida, USA.

7. It is the applicant’s case that the life interest of Jane Pamela Anyango on NKU/MUN BLOCK 23/10 extinguished and ceased to take effect on the 11th December, 2010. The same applies to her rights over shares and monies.

8. It is urged that the said Jane deliberately and intentionally concealed and/or failed to disclose the existence of the marriage to Jason when the estate was being distributed on 25th February, 2011.

9. There is no response to the application by way of affidavit.

10. I note however that both parties filed written submissions.

11. I have considered the application and the supporting grounds and affidavit. I have had due regard to the submissions on record.

12. It emerges from the facts deponed to that Jane got married to Jason on 11th December, 2010. This fact is not controverted by any other evidence.

13. Curiously, the grant herein was confirmed on 25th February, 2011. This is over two (2) months from the date of the alleged marriage.

14. At paragraph 4 of the affidavit in support of summons for confirmation, Janette Hellen Atieno, one of the administrators of the estate of the deceased listed Jane as a widow of the deceased. Before Court was not tendered any indication that Jane had remarried. On the material before court, Jane was recognized as a beneficiary.

15. The court proceeded to confirm the grant and Jane was given the property known as NKU/MUN BLOCK 23/10 whole share as shown on the distribution schedule.

16. Section 35 of the Law of Succession Act provides;

“S. 35. (1) Subject to the provisions of section 40, where an intestate has left one surviving spouse and a child or children, the surviving spouse shall be entitled to -

(a) the personal and household effects of the deceased absolutely; and

(b) a life interest in the whole residue of the net intestate estate:

Provided that, if the surviving spouse is a widow, that interest shall determine upon her re-marriage to any person.

17. Thus where a deceased person leaves behind a spouse and children, a surviving spouse is entitled to a life interest in the whole residue of the net estate.

18. Jane was a surviving spouse. In tandem with the law under Section 35, she ought to have been entitled to a life interest in the residue of the net estate.

19. The circumstances of the instant suit present a complete departure from the expectations of the law. According to the certificate of confirmed grant Jane was to get a whole share of NKU/MUN BLOCK 23/10. She acquired a registrable interest not the life interest as anticipated under Section 35(1).

20. Indeed, the confirmed grant has no reservations regarding the property designated for the benefit of Jane. There is no mention of a life interest in the grant.

21. To that extent therefore, the application before court is misconceived as “there exists no life interest to extinguish”.

22. The applicant’s remedy in my view lies in a challenge to the propriety of the grant noting, as alluded to above, he asserts Jane was married even before the grant was confirmed and secondly, he has issues with the nature of share she got.

23. The application as drawn cannot succeed. The same is dismissed. Each party to bear its own costs.

Dated and Signed at Nakuru this 10th day of July, 2019.

A. K. NDUNG’U

JUDGE