[2022] KEHC 12723 (KLR)

In re Estate of Jacob Opondi Ajwangi (Deceased) (Succession Cause 71 of 2004) [2022] KEHC 12723 (KLR) (15 June 2022) (Ruling)

Neutral citation: [2022] KEHC 12723 (KLR)

Republic of Kenya

In the High Court at Busia

Succession Cause 71 of 2004

JR Karanja, J

June 15, 2022

IN THE MATTER OF THE ESTATE OF JACOB OPONDI AJWANGI (DECEASED)

Between

Vincent Ochieng Opondo

Applicant

and

Vicent Ogai Wandera

Interested Party

Ruling

1. The application which was canvassed by way of written submissions was that which was dated June 3, 2019, for which the court on June 15, 2021 noted that it could not be traced in the record. Instead, what was on record was an application dated January 22, 2021. The parties were directed by the court to decide which of the two applications should be heard in priority to the other. They were given up to the September 21, 2021 to make a decision and on that day they informed the court that they had decided to have the application dated June 3, 2019, heard in priority to the application dated January 22, 2021. It was then ordered by the court that the application dated June 3, 2019, be heard in priority to the other application with leave to the applicant to amend the application which was eventually fixed for hearing on November 24, 2021, on which date the applicant failed to turn up either personally or through his advocate. The respondent/interested party appeared in court through his advocate Mr Wanyama, who notified the court that the parties intended to file submissions respecting the application dated June 3, 2019. The court allowed them to do so and on February 9, 2022, the parties appeared in court.

2. It transpired on that date that the applicant/petitioner had not filed his submissions. This necessitated an adjournment of the matter to a later date and on June 7, 2022, the court was notified by the interested party/respondent’s advocate and confirmed as much that both parties had since filed their respective submissions.Notwithstanding the foregoing, the application dated June 3, 2019, remained untraced in the record and there was no indication that it was ever amended.The matter therefore proceeded and was built without a foundation or with a foundation that was erected on “quick sand” such that it could not withstand or sustain the intended application dated June 3, 2019. In the circumstances, there is no such application dated June 3, 2019 for this court to make a ruling in respect thereof.

3. However, as gleaned from the submissions the elusive application was for a review of a ruling made by this court on January 22, 2019, which effectively dismissed the applicant’s application dated May 5, 2015, which sought the rectification of a confirmed grant and issuance of a fresh certificate of confirmation of grant in the manner proposed therein.Even if the application was in existence in the record or it is unavailable in the court record due to a lapse in the filing or any other reason it is highly unlikely that it would have been allowed by this court for a failure of satisfactory reason or cause for review of the impugned ruling. In any event, the circumstances of the matter provided reasonable grounds for an appeal rather than a review of the impugned ruling. Thus, the remedy sought by the applicant lies with the Court of Appeal rather than this court. Consequently, the application whether intended or existent cannot be sustained and is hereby dismissed free of costs.

4. The submissions filed by both parties addressed the dismissed application dated June 3, 2019 as well as the application dated January 22, 2021, in which the interested party seeks orders to the effect that the ex-parte proceedings conducted on March 24, 2015 be set aside to allow the interested party an opportunity to be heard and respond to the application by the petitioner/applicant and to the effect that the second certificate of confirmation of grant dated May 25, 2015 made in favour of the petitioner/applicant be set aside and expunged from the record. The court having also given due consideration to this second application on the basis of the supporting grounds and the rival submissions is of the view that the application with regard to prayer one (1) is untenable for reasons that the interested party has not provided satisfactory grounds for setting aside the proceedings of March 24, 2015 which were essentially for substitution of the departed petitioner Ojwang Opondo Hela with the interested party as the new petitioner in place of his departed father/previous petitioner. The application was allowed and this did not cause any prejudice to the interested party in any manner as the demise of the previous petitioner was not disputed at all.

5. However, the substitution came rather belatedly after the original grant was confirmed on the December 1, 2008 with the estate property (i e Samia/Wakhungu Odiado/2416) being distributed to the two beneficiaries, i e the late petitioner and the interested party. Having come approximately eight (8) years after the grant was confirmed, the substitution was a pyrrhic victory for the applicant as it had no effect on the certificate of confirmation of grant dated December 1, 2008, which authorized lawful transmission of the estate property to the respective beneficiaries. The estate became spent following the transmission such that there was nothing left or available for distribution or further distribution.

6. In the circumstances, the subsequent certificate of confirmation of grant issued on May 25, 2015 was erroneous inasmuch as it was purportedly issued following the grant of the applicant’s application to be substituted as the petitioner in place of his late father, yet there was no further order for the issuance of a fresh certificate of confirmation of grant which in any event could not issue without revocation of the earlier certificate of confirmation of grant issued and dated December 1, 2008. It is instructive to note that the applicant made an application dated May 5, 2015 for a fresh certificate of confirmation of grant but it was filed in court on May 29, 2015 after the second certificate of confirmation of grant was issued on May 25, 2015. It could not therefore purport to “sanitize” the erroneous issuance of the second certificate of confirmation of grant which for al lintent and purposes was not a legally valid document and only served to demonstrate a gross abuse of the process of the court on the part of the applicant, Victor Ochieng Opondo.

7. For the foregoing reasons, the second prayer in the application dated January 22, 2021 is well merited and by the power conferred upon this court by rule 73 of the Probate & Administration Rules, the second certificate of confirmation of grant dated May 25, 2015, is hereby revoked and expunged from the record to the court that any act undertaken on its strength and authority be and is hereby declared null and void “abinitio”.Ordered accordingly.

J R KARANJAHJ U D G EDATED & SIGNED THIS 15TH DAY OF JUNE 2022