[2022] KEHC 12568 (KLR)

In re Estate of George Gedalla Churko alias George Gedara Churuko alias Churko Gendalla (Deceased) (Succession Cause 277 of 2014) [2022] KEHC 12568 (KLR) (17 June 2022) (Ruling)

Neutral citation: [2022] KEHC 12568 (KLR)

Republic of Kenya

In the High Court at Meru

Succession Cause 277 of 2014

PJO Otieno, J

June 17, 2022

IN THE MATTER OF THE ESTATE OF GEORGE GEDALLA CHURKO alias GEORGE GEDARA CHURUKO Alias CHURKO GENDALLA (DECEASED)

Between

Kato Churko

1st Applicant

Jane Churko

2nd Applicant

Zakaria Guyo

3rd Applicant

Gode Ote

4th Applicant

Bali Chandbhai

5th Applicant

and

Christine Gendalla Churko

1st Respondent

Hasinakarch Gendalla

2nd Respondent

Ruling

1. By summons dated 15/3/2017 under certificate of urgency and expressed to be brought pursuant to sections 47 & 76 of the Law of Succession Act, rule 44 of the Probate and Administration Rules and all other enabling provisions of law, the applicants seek in the main the revocation of the grant on the allegations that the grant made to Christine Gedalla Churko and Hasina Karch Gedalla on December 17, 2014 should not have been made in respect of the estate of Churko Gedalla Alias Elija Churko Gedalla who is a different person from the late George Gedalla Churko. It is averred that the late George Gedalla Churko was the son of the late Churko Gedalla Alias Elija Churko Gedalla, the husband to Hasina Karch Gedalla and the father to Christine Gedalla Churko. The respondents are accused of using the similarities in the family names to make fraudulent misrepresentation to the court to the effect that George Gedalla Churko was the same as Churko Gedalla Alias Elija Churko Gedalla, yet the two are son and father respectively. It is contended that the 1st respondent is the daughter of the late George Gedalla Churko and the 2nd respondent.

2. The applicants aver that Gedalla Churko(deceased) was the father to George Gedalla Churko(deceased), Shallo Churko(deceased), Shoe Churko(deceased), Shallu Churko(deceased), Kato Churko and Jane Churko and therefore that the inclusion of the property known as Marsabit/Mountain/37 (hereinafter referred to as the suit property) as part of the estate of the late George Gedalla Churko was fraudulent and the fraud was perpetuated by indicating that Churko Gedalla was an Alias for George Gedalla Churko yet the two are totally different individuals. The applicants thus urge and pray that the suit property should revert back to the estate of Churko Gedalla since the original title deed is still being held by his only surviving son namely Kato Churko, the 1st applicant to obviate the prospects of the respondents transferring the suit property to another unsuspecting 3rd party and therefore further complicating the matter even further.

3. It is further asserted that the negotiations within the family have failed since the respondents refused to attend any clan meeting called by the elders to address the issues. It is further averred that the respondents have threatened to evict the 1st applicant, who currently lives in the suit property on the basis that it has since been illegally and fraudulently transferred to the respondents. The applicants contend that the appointment of Hasina Karch Gedalla and Christine Gedalla Churko as administrators of the estate of Churko Gedalla was itself unlawful.

4. The 1st applicant, in his supporting affidavit sworn on 13/3/2017 reiterates the grounds on the face of the application and maintains that his father namely Churko Gedalla Alias Elijah Churko Gedalla was the registered owner of Marsabit/Mountain/37 which ought not to have been included in the deceased’s estate and should be excluded with the consequence that the transfer in favour of the two administrators ought to be reversed. The respondents are accused of of misleading the court that Churko Gedalla Alias Elijah Churko Gedalla and George Gedalla Churko was one and the same person thus justifying the inclusion of the property as part of the estate it never belonged to and thus culminating into the same being transmitted to the respondents unlawfully. It is then underscored that the original title to the property remains to be held by the applicant

5. In opposition to the application, the 1st respondent swore a replying affidavit on 10/5/2017 in which she contends that the deceased herein was her father and the applicants are uncle, aunt and cousins and therefore not beneficiaries to the estate. She maintains that the estate herein and the properties dealt with therein belonged to her father George Gendala Churko and any registration of his property in any other person’s name was merely erroneous. She avers that the applicants have been making death threats to them which they reported to the police besides chasing her mother, the 2nd respondent from the suit property. She contends that the 1st applicant owns a lot of properties within Marsabit County, some of which he actually inherited from their grandfather Elijah Churko Gendalla, and they have never bothered him. She contends that Marsabit/Mountain/37 was actually acquired and belonged to their father and that is why they included it in the administration of his estate. She further contends that the person referred to as Churko Gendalla is her father, which name was also used by her grandfather. She concludes that they did not fraudulently or otherwise mislead the court at all but the applicants are merely being selfish to the truth.

6. The 1st applicant in his further supporting affidavit sworn on November 14, 2019 stated that the late George Gendala E Churko, a family member of the late Elija Churko Gendala, confirmed in an affidavit sworn by him on 2/4/2003 that the land in question belonged to Elija Churko Gendalla. He contended that the said George Gendala had also confirmed in that affidavit that Elijah Churko Gendalla and Churko Gedalla was a different person from himself.

7. The 1st respondent swore another affidavit on 15/2/2020 in response to the further supporting affidavit by the 1st applicant and termed the affidavit sworn by the deceased on 2/4/2003 as a forgery and denied that the suit property belonged to Churko Gendalla. She maintained that her father could not have sworn such an affidavit yet he was the registered owner of the suit property. She accused the 1st applicant in collusion with others of interfering with official records and/ or forging her late father’s signature with the sole purpose of taking his estate. she urged the court to order for investigation of the source of the alleged deceased affidavit and punishment of the culprit.

8. The 1st respondent swore a further replying affidavit on 2/2/2021 and averred that pursuant to a consent order of 10/7/2017, the land registrar and the registrar of births and deaths supplied the court with information on the registration details of the suit property and identities of the people concerned. She contended that the signature on the adjudication record completely differed from that of her deceased father. She urged the court to order for the production of the original adjudication record for perusal and verification. She faulted the applicants for numerously failing to comply with the aforementioned consent order. She termed the application as an afterthought purely filed to gamble and attempt to illegally take away the suit property from the right beneficiaries. She denied that they had threatened to dispose of their late father’s properties to 3rd parties and that it was the 1st applicant who had forcefully entered and occupied the suit property and plot No 15 Marsabit Town after the death of the deceased and was colluding with his co-applicants to threaten her and the 2nd respondent. She reiterated that Gedalla Elija George, George Gendala E. Churko, George Gandala Churko, Churko Gedalla, George G.E Churko, George G. Churko, Elijah Churko Gedala, Churko Gedala and George Churuko Gedara all belonged to her father. She stated that Elija Churko Gendala was her grandfather who died in 1979. The form for register of death by the registrar of persons shows that her late father was called Elija Churko Gedalla and not Churko Gedalla as alleged by the applicants. She contended that her late father Churko Gedalla was the first registered owner of the suit property and denied the allegation that the suit property was registered in the name of their grandfather namely Elijah Churko Gedalla Alias Churko Gedalla. The respondents position is that since the said Elijah Churko Gedalla died in 1979, he could not have been registered as the owner of the suit property 23 years after his death. She accused the applicants of exploiting the similarities of her late father’s names and that of their late father Elija Churko Gedala to cause confusion so that they could have a leeway to lay a claim on the suit property, simply because the respondents are women. The 1st applicant started claiming the suit property when the respondents wrote him a demand notice to move out of the land and has roped in the 3rd to 5th applicants are her cousins who have never lived in any part of the suit property and therefore they cannot demand any share of the land. The 1st applicant is also not entitled to a share of the suit property because prior to their grandfather’s death, he had given them their respective shares of the family land. She contended that her late father, her sister Kulu George (deceased) and John Churko (deceased) are all interred in the suit property. She stated that the 2nd respondent used to live on the suit property before she was threatened with death by the applicants which forced her to move out of the land and that they filed the succession cause openly and without any secrecy. She urged the court to disallow the application with costs.

9. The application was directed to be canvassed by way of written submissions which were respectively filed on 16/7/2021 and 1/11/2021. The applicants submitted that they had locus standi to seek revocation of the grant by virtue of being beneficiaries to the estate of Churko Gedalla Alias Elijah Churko Gedalla. They blamed the respondents for obtaining the grant without disclosing the fact that George Churko Gedalla and Elijah Churko were two distinct people and therefore the inclusion of the suit property in this cause was erroneous. They cited Re Estate of Hellen Wangari Wathiai(deceased)(2021)eKLR, on who and when an objection to the making of a grant can be lodged adding that it would be a travesty of justice to drive away the applicants, who are rightful beneficiaries of the estate of Elijah Churko Gedalla, from getting a share of the suit property. They cited Re Estate of Joseph Kilonzo Musyoka(deceased) (2018) eKLR, on the need by parties to make full disclosures to the court of all material facts to the case including succession cases and further that based on the weight of the evidence on record, it was just that the grant be revoked and the titles issued to the respondents cancelled, so that the suit property can revert back to Churko Gedalla Alias Elijah Churko Gedalla for distribution of all the rightful beneficiaries.

10. The respondents submitted that the allegations by the applicants that the respondents used the similarities of names in the family to make fraudulent misrepresentation have no iota of truth and insisted that the suit property belonged to George Gendalla Churko and denied that the suit property was registered in the name of the applicants’ father. They submitted that the applicants have their own land and they should not be allowed to interfere with the deceased estate. They submitted that the alleged affidavit sworn the deceased herein was a forgery, maintaining that they obtained the grant legally after following due process. They submitted that prior to their grandfather’s death, he gave the 2nd house, which the 1st and 2nd applicants belong, several parcels of land within Marsabit, blamed the applicants of giving evidence in their submissions and relied on Robert Okari Ombeka v Central Bank of Kenya (2015)eKLR, for the proposition that submissions cannot take the place of evidence. It was additionally submitted that the applicants had not met the threshold required under section 76 of the Law of Succession Act to warrant the revocation of the grant. They beseeched the court not to revoke the grant as the applicants had failed to prove that the respondents obtained the grant against the principles set out in Matheka & anor v Matheka(2005)2 KLR 455,Joyce Ngima Njeru & anor v Ann Wambeti Njue(2012)eKLR on the application of provisions of section 76 of the Law of Succession Act.

Analysis and Determination 11. I have considered the affidavits and documents filed in evidence thereof as well as the submissions on record and isolate the issue for determination to be whether the property known as parcel Number Marsabit/Mountain/37 belongs to the estate. Even though the application seeks revocation of the grant, the only reason advanced is the inclusion of the said property which is alleged not to be part of the estate. I consider that not to be a reason for revocation nor annulment.

12. Section 76 of the Law of Succession Act sets out the requirements for revocation or annulment of grant. It provides: -“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; (d) that the person to whom the grant was made has failed, after due notice and without reasonable cause either—(i)to apply for confirmation of the grant within one year from the date thereof, or such longer period as the court order or allow; or(ii)to proceed diligently with the administration of the estate; or(iii)to produce to the court, within the time prescribed, any such inventory or account of administration as is required by the provisions of paragraphs (e) and (g) of section 83 or has produced any such inventory or account which is false in any material particular; or(e)that the grant has become useless and inoperative through subsequent circumstances.

13. I have looked at the report from the ministry for immigration and registration of persons dated 1/8/2017 together with the registers of death. The information I gather from those documents is that George Gendala was the son to Elijah Churko, and Churko Gendala was the son to George Gendala. The letter from the ministry of land and physical planning dated 6/9/2017 and the green card to Marsabit/Mountain/37 reveals that as at 15/8/2002, the said parcel was owned by Churko Gedalla. I have equally looked at the affidavit sworn by George Gendala E Churko on 2/4/2003 in which the said George admits that Elija Churko Gendala was the registered owner of Marsabit/Mountain/37. The deponent went on to swear that, being one of the alive family members of the late Elija Churko Gendala, he could collect the title deed on behalf of other family members. I however note that the authenticity of the affidavit is contested by the respondents.

14. It is quite evident from the identification report exhibited by the 1st respondent (CGC 7) that Elijah Churko Alias Churko Gendalla was the father to George Gedalla Churko (deceased), Shallo Churko (deceased), Shoe Churko(deceased), Shallu Charko, Kato Churko and Jane Churko, the applicants, who would therefore be e entitled to a share of any of his property by virtue of being children and grandchildren but in a cause over the estate of the deceased.

15. The cause herein relates to the estate of George Gedalla Churko and not Elijah Churko Gendala. On basis alone, the applicants do not stand in pari passu with the respondents being not children to the deceased and cannot thus validly seek to have the grant revoked on the basis that they were not involved. Moreover, that a property that does not belong to the estate was included by itself is not sufficient to have the grant revoked.

16. The pleadings filed are not explicit on whose favour, between the two deceased persons, the land was registered. That confusion needs a resolution by a court with that jurisdiction. However, on the basis that the property is not a free property as defined, it is directed that it, Parcel Number Marsabit/Mountain/37, be removed from the list of properties and set apart, pending the determination of its ownership by a court empowered appropriately.

17. Having said so, the dispute now comes out as a claim over title to land between the two estates. That is a matter well beyond this court sitting as a probate court. Let parties take legal counsel and have the proprietorship of the property determined before its distribution can be considered in this cause.

18. The upshot from the foregoing is that the application for revocation fails but the asset, plot No Marsabit/Mountain/37, is removed from the list of estate property and set apart pending determination of its ownership. The proceedings for such determination be commenced within 60 days from today. To preserve the property, pending such determination, it is ordered that it be not alienated in any way. For that reason, let an inhibition be issued and registered against the title.

19. By way of case management and the need to take judicial services closer to the people, it is noted that the entire estate property is situate within Marsabit county where there sits a Judge. It is directed that this file be transferred to Marsabit High Court for any other and further necessary proceedings.

20. On costs, each party shall bear own costs

DATED, SIGNED AND DELIVERED AT KAKAMEGA, ONLINE, THIS 17TH DAY OF JUNE 2022. PATRICK J. O. OTIENOJUDGEIn the presence of:Mr. Nyamu Nyaa for the PetitionersN/A for Mr. Behailu for the ObjectorsCourt Assistant: Mwenda