[2023] KEHC 24068 (KLR)

In re Estate of Isaaya Okuku Obilo (Deceased) (Succession Cause 194 of 2015) [2023] KEHC 24068 (KLR) (27 October 2023) (Ruling)

Neutral citation: [2023] KEHC 24068 (KLR)

Republic of Kenya

In the High Court at Busia

Succession Cause 194 of 2015

WM Musyoka, J

October 27, 2023

Ruling

1. The deceased herein died on 13th September 1989. Representation to the estate was sought by Ludofico Opiyo Obilo, in Busia SRMCSC No. 86 of 1992, in his capacity as brother of the deceased. He listed himself as the sole survivor of the deceased. Samia/Bujwanga/1580 was listed as the property that the deceased died possessed of. It was stated that there was a liability, of 2½ acres, whose value was put at Kshs. 15,000. 00. Letters of administration intestate were made to Ludofico Opiyo Obilo on 12th October 1992, and a grant was duly issued, of even date. the said grant was confirmed on 10th January 1994. Samia/Bujwanga/1580 was shared out between Ludofico Opiyo Obilo and Armstrong Freddie Kasuku, who got 2½ acres out of the land, with Ludofico Opiyo Obilo getting the balance. A certificate of confirmation of grant, in those terms, was duly issued, dated 10th January 1994.

2. A summons for revocation of grant was then filed herein, on 30th April 2015, of even date, by Rayson Ochieng Oduke and Simon Khalonyere Oduke, in their purported capacities as sons of the deceased. They complained that Ludofico Opiyo Obilo, a stepbrother of the deceased, had obtained representation to the estate, without involving or disclosing them, and had proceeded to have the grant confirmed, and devolved the estate to himself and Armstrong Freddie Kasuku, to their total exclusion. They were subsequently evicted from the land. They averred that their mother, Mary Auma Malo, came to discover what had happened, and moved to the Funyula Land Disputes Tribunal, which found in favour of Ludofico Opiyo Obilo, and that award was adopted as an order of the court in Busia SRM Land Dispute No. 60 of 2008. They asserted that they had lived all their lives on Samia/Bujwanga/1580, and had no other place they could call home. That summons for revocation was resisted by Ludofico Opiyo Obilo, vide an affidavit sworn on 5th May 2015. He asserted that Rayson Ochieng Oduke and Simon Khalonyere Oduke were not sons of the deceased, but of a Zedekia Oduke. He asserted that their entitlement was in the estate of the said Zedekia Oduke. He stated that the 2 only came into the land following the demise of the deceased, and were brought by Mary Auma Malo, who was their maternal aunt. The said Mary Auma Malo had been temporarily accommodated by the deceased, after she was chased away by her husband.

3. The application, dated 30th April 2015, was partly heard by F. Tuiyott J and partly by W. Korir J. Both took oral evidence, from Simon Khalonyere Oduke, Peter Cornell Osogo, Ludofico Opiyo Obilo and Clement Oduke Malo. The application was disposed of in a ruling that W. Korir J delivered on 30th November 2016, reported as In re Estate of Isaaya Okuku Obilo (Deceased) [2016] eKLR. The court found and held that Rayson Ochieng Oduke and Simon Khalonyere Oduke were children that the deceased had taken into his family as his own, and were his dependants for all purposes, and they ought to have been listed in the petition. It was also ruled that they had priority, by dint of section 38 of the Law of Succession Act, Cap 160, Laws of Kenya, to succeed the deceased, over Ludofico Opiyo Obilo. It was further found and held that if there was anything to be inherited from the estate, then Rayson Ochieng Oduke and Simon Khalonyere Oduke and their deceased aunt, Mary Auma Malo, were entitled to it. The court also made findings related to what Armstrong Freddie Kasuku acquired out of the land from the deceased. It was 2½ acres, leaving a ¾ acre to the estate, and that the ¾ acre was what was available for distribution to Rayson Ochieng Oduke and Simon Khalonyere Oduke. The final order was that the grant, made in Busia SRMCSC No. 86 of 1992, on 12th October 1992, and confirmed on 10th January 1994, was revoked. Rayson Ochieng Oduke and Simon Khalonyere Oduke were then appointed administrators. The transmission of the share given to Armstrong Freddie Kasuku was cancelled, and the entire property was reverted to Samia/Bujwang’a/1580, in the name of the deceased.

4. A grant of letters of administration was duly issued to Rayson Ochieng Oduke and Simon Khalonyere Oduke, dated 17th September 2021. I shall refer to the 2 as administrators. The administrators filed a summons for confirmation of grant, dated 20th September 2021. They identified themselves as the sole survivors of the deceased, and Samia/Bujwang’a/1580 as the asset available for distribution. They propose that the same be registered in their joint names.

5. Armstrong Freddie Kasuku filed an affidavit of protest, sworn on 30th December 2021, and I shall refer to him hereafter as the protestor. He avers to be in possession of the land, having bought it from the deceased. He complains that he was not involved in the revocation proceedings that led up to the cancellation of his title. He states that the initial administrator had lodged an appeal, at the Court of Appeal, against the determination by W. Korir J, being Kisumu CACA No. 38 of 2017, and that that matter was still pending. He asserts that the land could not be taken away from him, without him being given an opportunity to be heard. He prays that the distribution be stayed, to await determination of the Court of Appeal matter. The protestor filed a supplementary affidavit, on 13th March 2023, sworn on 10th March 2023, essentially to refer to the Tribunal proceedings, and to assert that the administrators were not children of the deceased.

6. In a curious twist, the administrators filed a second summons for confirmation of grant, on 22nd May 2023, dated 19th May 2023. In it, they identify themselves as survivors of the deceased. They identify the asset available for distribution as Samia/Bujwanga/153, measuring 5 acres, out of which they propose that Rayson Ochieng Oduke get 2 acres and Simon Khalonyere Oduke 3 acres.

7. The summonses for confirmation of grant were canvassed orally. The oral hearings happened on 15th March 2023 and 14th June 2023.

8. The protestor was the first on the stand. He said that he bought the land in 1984. He said that the administrators had been staying on the land with their aunt and the deceased, when the deceased sold the land to him. He stated that the deceased had a wife, and the deceased aunt of the administrators was not the wife. He said that the administrators came on to the land illegally. He stated that Samia/Bujwang’a/1580 measured 5 acres, but by the time he got the title he found only 3. 5 acres. He stated that the administrators were entitled to 2. 5 acres from the estate of their real or biological father. He explained that after he bought Samia/Bujwang’a/1580, he and the deceased went to the land control board, but the deceased died before the process was finalized, hence his brother, Ludofico got involved, and initiated the succession process to facilitate the transmission of Samia/Bujwang’a/1580 to his name.

9. Clement Oduke Malo followed. He was a retired Chief. He identified the administrators as his half-brothers, being the children of Zedekia Oduke, and asserted that they were not the children of the deceased herein. He asserted that the mother of the administrators had been married to Zedekia Oduke, although she later left and went back to her first husband, and when she died, she was buried there. He said that he was the one who paid school fees for the administrators, but the 2 abandoned school. Joseph Ogeso Ngesa followed. He said that he knew the administrators.

10. Only Rayson Ochieng testified for the administrators. He insisted that his real name was Hesbon Ochieng. He said that the deceased was his father. He also stated that he was meeting the protestor for the first time in court. He stated that his mother was Mary Auma, and asserted that they were following the entitlement of their mother. He said that he was not related to Clement.

11. At the close of the oral hearings, the parties filed written submissions, which I have read through, and noted the arguments made.

12. The administrators have filed 2 summonses for confirmation of grant, one dated 17th September 2021 and the other dated 19th May 2023. I will determine one of them, and strike out the other. The one that I will determine is that dated 17th September 2021. I will strike out that dated 19th May 2023. Here are the reasons. Firstly, it was filed during the pendency of the earlier application, and it was filed before the pending application had been withdrawn. There cannot be 2 summonses for confirmation of grant, with respect to the same estate, filed by the same applicants. Secondly, it seeks to distribute a property described as Samia/Bujwanga/153. That property is not what has been the bone of contention in these proceedings. The petition herein listed only Samia/Bujwanga/1580, not Samia/Bujwanga/153. The certificate of official search, on record, dated 22nd June 1992, indicates Samia/Bujwanga/1580 to be the property registered in the name of the deceased, since 3rd April 1989. I have not seen any document of title relating to Samia/Bujwanga/153, and I cannot tell whether the same has any connection with the deceased. When the administrators mounted their summons for revocation of grant, dated 30th April 2015, the property in contention, in that application, was Samia/Bujwanga/1580, and Samia/Bujwanga/153 did not feature. The ruling by W. Korir J turned on Samia/Bujwanga/1580, not Samia/Bujwanga/153. The application, dated 19th May 2023, has no place in these proceedings, and I hereby strike it out.

13. The oral hearings that I conducted on this matter, with respect to summons for confirmation of grant, dated 17th September 2021, turned on only 2 issues, the status of the administrators as survivors of the deceased, and on the entitlement of the protestor to Samia/Bujwanga/1580. These 2 issues also arose in the revocation application, dated 30th April 2015. They were litigated before F. Tuiyott J and W. Korir J, and W. Korir J addressed them in his ruling of 30th November 2016. The said issues are now water under the bridge. They are res judicata. They cannot possibly be re-litigated in the instant confirmation proceedings. They were finally resolved, and all I can do herein is to distribute the estate, based on the findings and holdings in the ruling of 30th November 2016.

14. How was the issue of the status of the administrators resolved? W. Korir J found and held that the 2 were children of the deceased, on the basis that the deceased had taken them into his family as his own. So, whether they had another father, who was their biological father, and whether Mary Auma Malo was not their biological mother, is now neither here nor there. If that finding and holding aggrieved anyone, then the aggrieved party was entitled to appeal. Has an appeal be lodged against the same? No material was placed before me, other than an alleged appeal number. I cannot tell whether an appeal was lodged as no appeal papers were placed before me. As it is, I have an order before me which declared the administrators herein to be heirs to the estate of the deceased herein.

15. How was the issue of the protestor resolved? W. Korir J found and held that the protestor had taken his case to the Land Disputes Tribunal, on the issue as to whether the deceased had indeed sold Samia/Bujwanga/1580 to him, and found and held that the Tribunal found that indeed such a sale happened. What was not clear was the acreage that was sold to the protestor, was it the whole land, 5 acres, or 3. 35 acres? The petition identified the claim by the protestor as 2½ acres, and that was what was devolved to him in the initial confirmation of 1994. W. Korir J concluded that the administrators would be entitled to inherit the balance of what remains of Samia/Bujwanga/1580, after the share sold to the protestor was hived off. The administrators acknowledged the Tribunal proceedings, in the revocation application, and conceded that the proceedings were resolved in favour of the protestor.

16. I can only go by the final conclusions by W. Korir J. The share due to the protestor was determined by the Tribunal, and the award of the Tribunal was made a decree of the court. That determination by the Tribunal has not been reversed, either on appeal or in Judicial Review proceedings, and it binds. That share shall be hived off first, being 2½ acres, and whatever shall remain shall then be shared equally between Rayson Ochieng Oduke alias Hesbon Ochieng and Simon Khalonyere Oduke. The summons for confirmation of grant, dated 17th September 2021, is resolved in those terms. The administrators have 6 months to transmit the estate. The matter shall be mentioned after 6 months for compliance. There is leave of 30 days, for parties to appeal against this outcome, at the Court of Appeal, in case any of them is aggrieved. Each party shall bear their own costs.

DELIVERED, DATED AND SIGNED IN OPEN COURT AT BUSIA ON THIS 27THDAY OF OCTOBER,2023. WM MUSYOKAJUDGEMr. Arthur Etyang, Court Assistant.Mr. Rayson Ochieng Oduke alias Hesbon Ochieng and Mr. Simon Khalonyere Oduke, the administrators, in person.AdvocatesMr. Juma, instructed by JV Juma & Company, Advocates for the protestor.