[2019] KEHC 10236 (KLR)
The court found that the grant confirmed on 25th May 2015 had not been amended and there was therefore nothing to amend as sought by the applicant. The application for rectification was dismissed on this basis. The court further directed the petitioner to render accounts within 30 days as required by law, failing...
Source-derived case information.
- Citation
- [2019] KEHC 10236 (KLR)
- Parties
- Applicant: Vincent Ochieng Opondo; Respondent: Vincent Ogai Wandera
- Court
- High Court
- Court Station
- High Court at Busia
- Jurisdiction
- Kenya
- Case Number
- Probate & Administration 71 of 2019
- Procedural Posture
- Probate and Administration / Ruling on Application to Rectify Confirmed Grant
- Outcome
- application dismissed
- Judges
- KW Kiarie
- Legal Topics
- Succession, Grant Rectification, Estate Distribution, Fraud in Succession, Omission of Heirs
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Vincent Ochieng Opondo
Applicant
Vincent Ogai Wandera
Respondent
Procedural Posture
Probate and Administration / Ruling on Application to Rectify Confirmed Grant
Legal Issues
- 1 Whether the confirmed grant should be rectified as sought by the applicant.
- 2 Whether the subdivision of the deceased's land was procured by fraud.
- 3 Whether rightful heirs were omitted from the distribution of the estate.
Ratio Decidendi
The court found that the grant confirmed on 25th May 2015 had not been amended and there was therefore nothing to amend as sought by the applicant. The application for rectification was dismissed on this basis. The court further directed the petitioner to render accounts within 30 days as required by law, failing which an order for revocation of the grant would issue. The court did not find sufficient grounds to support the applicant's allegations of fraud or omission of heirs, as the record showed that the distribution had already been addressed in the previous confirmation of grant. The application was therefore dismissed with costs.
Court Disposition
application dismissed
Orders
- The application for rectification of the confirmed grant is dismissed.
- The petitioner is given 30 days to render accounts as provided under section 83(g) of the Law of Succession Act, failing which an order for revocation will issue.
Full Case Text
Judgment text and source record
37 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT BUSIA
PROBATE & ADMINSTRATION NO.71 OF 2004
IN THE ESTATE OF;
JACOB OPONDO AJWANGI..................................................................DECEASED
BETWEEN
VINCENT OCHIENG OPONDO.........................................................APPLICANT
AND
VINCENT OGAI WANDERA..................INTERESTED PARTY/RESPONDENT
RULING
1. Vincent Ochieng Opondo the applicant herein filed an application dated 5th May 2015 under section 47 of the Law of Succession Act and Rules 43& 49 of the Probate and Administration Rules. He is seeking orders as follows:
a) That the confirmed grant be rectified.
b) That the property of the deceased land parcel No. SAMIA/WAKHUNGU-ODIADO/246 subdivision to Nos. 1885 &1886 be annulled and be cancelled and reverted to its original number.
c) That a fresh certificate of confirmation be issued to the applicant to subdivided the land to the beneficiaries as follows:
i) Victor Ochieng Opondo -1 acre
ii) Michael Oduori -1acre
iii) Vincent Ogai Wandera - 1. 5 acres
iv) Angelina Ouma - 2 acres
2. The application was premised on grounds that I have summarized as follows:
a) That the subdivision was procured by fraud on the part of the interested party.
b) That the respondent deliberately omitted some rightful heirs.
3. The application was opposed by the interested party on grounds that:
a) The petitioner filed an application for confirmation of the grant dated 26th June 2008 and proposed that he be granted 4 acres from the estate.
b) That the applicant lacks the capacity to urge this application.
4. I have perused the record and the facts that emerge are as follows:
i) That on 1st December 2008 a certificate of confirmation of grant was issued to Ojwang Opondo Hela to distribute the estate of JACOBOPONDO AJWANGIwhich comprised of SAMIA/WAKHUNGU-ODIADO/246 to Ojwang Opondo Hela (1. 5 acres) and Vincent Ogai Wandera (4 acres).
ii) On 25th May 2015 another certificate of confirmation of grant in respect of the same estate was issued. This was after the application of 24th November 2014 was allowed. This application introduced the distribution of the estate to some heir left in the initial distribution. The estate was distributed as follows:
a) Angelina R. Ouna (sic) to get 2 acres;
b) Victor Ochieng to get 1 acre;
c) Evans Oduory to get 1 acre; and
d) Vincent Ogai Wandera 1. 5 acres
The present application is seeking confirmation in the same terms.
5. My perusal of the record does show that the grant that was confirmed on 25th May 2015 was ever amended. I therefore have nothing to amend. The application is therefore dismissed and the petitioner given 30 days within which to render accounts as provided for under section 83 (g) of the Law of succession Act failure to do so, an order for revocation will issue.
6. The application is therefore dismissed with costs.
DELIVEREDandSIGNEDatBUSIA this 22nd day ofJanuary 2019
KIARIE WAWERU KIARIE
JUDGE