[2023] KEHC 25500 (KLR)

In re Estate of Jakinda Samwel Oballa (Deceased) (Family Miscellaneous Application E003 of 2023) [2023] KEHC 25500 (KLR) (15 November 2023) (Ruling)

Neutral citation: [2023] KEHC 25500 (KLR)

Republic of Kenya

In the High Court at Siaya

Family Miscellaneous Application E003 of 2023

DO Ogembo, J

November 15, 2023

IN THE MATTER OF THE ESTATE OF JAKINDA SAMWEL OBALLA (DECEASED)

Between

Geoffrey Ochieng Oballa

Objector

and

Dinna Adoyo Oballa

1st Administrator

Benjamin Odero Oballa

2nd Administrator

Jane Atieno Oballa

3rd Administrator

Ruling

1. Geoffrey Ochieng Oballa, the Objector/applicant, has moved this court by way of summons for revocation of grant dated 4-5-2023. The application is brought under Sections 63, 73 and 76 of the Law of Succession Act, Cap 160 and Rule 44 of the Probate and Administration Rules, amongst other provisions of the law. At this point of the proceedings the material prayers in the application are:-1. That the grant of representation and certificate of confirmation issued to the 1st and 2nd administrators herein on 26-7-2017 be revoked and annulled.2. That all public entries and records undertaken by the Respondents before or on account of the Certificate of confirmation of grant issued on 26-7-2017 herein regard to illegal change of proprietorship of the suit properties mother parcels be and are hereby declared null and void ab initio.3. That all the titles LR Nos North Sakwa/Nyawita/2260 and 2261, LR No. Uyoma/Kokwiri/4355 and 4356 and LR No. North Sakwa/Nyawita/2406 and 2407 be cancelled and their ownership be reverted to the mother parcels and to the name of the deceased for the purpose of distribution of the Estate.

2. The Objector also prays for costs of this cause. On 17-7-2023, the court gave directions that this application, (together with the preliminary objection) filed by the Respondent be canvassed by way of written submissions. However, only the objector applicant filed submission.

3. The basis of this objection application is contained in the Affidavit of the Objector in support of the application wherein it has been deponed that he is son and beneficiary in the estate of Jakinda Samwel Oballa (deceased). That deceased had 5 wives. 1st wife Dinnah Adoyo Oball (deceased) had no children. 2nd wife Rhoda Oballa (deceased) had 4 children. 3rd wife Lorna Oballa (decased) also had 4 children. The 4th wife Jane Atieno Oballa, had children while the 5th wife Alice Oballa had 2 children. That deceased owned parcels LR No. North Sakwa/Nyawita/883, Uyoma/Kokwiri/4194, North Sakwa/Ajigo/460 and North Sakwa/Ajigo/1041. That on or about 2001, Jane Atieno Oballa, the 3rd administrator illegally sub-divided the mother title North Sakwa/Nyawita/833 into 2 portions North Sakwa/Nyawita/2260 and North Sakwa/Nyawita/2261 and registered the same in her name.

4. That she further authorized a 3rd party, Safaricom Ltd to construct a booster in the sub-divided North Sakwa/Nyawita/2260 from which she earns rental income.

5. Further that 3rd administrator further illegally sub-divided Uyoma/Kokwiri/4194 into 2 portions Uyoma/Kokwiri/4355 and Uyoma Kokwiri/4356 and sold a portion of the mother parcel to a 3rd party.

6. Also that on 4-8-2010, the 1st administrator Dinna Adoyo Oballa illegally transferred North Sakwa/Ajigo/460 from deceased’s name to her name and further sub-divided same into 2 portions North Sakwa/Ajigo/2406 and North Sakwa/Ajigo/2407.

7. That in 2015, the 1st and 2nd Respondents filed for succession in Cause No. 51 of 2015 and a certificate for confirmation was issue to 1st and 2nd Respondents on 26-7-2017. That the Respondents deliberately left out other properties of the deceased and only included North Sakwa/Ajigo/362 for distribution. It was deponed further that the Respondents have failed to protect the estate of the deceased and colluded with 3rd parties to defraud and unlawfully sub-divide North Sakwa/Nyawita/883, North Sakwa/Ajigo/460, Uyoma/Kokwiri/4194, and allowing a 3rd party Elly Randiga Oluoch to occupy North Sakwa/Ajigo/1041 which is still in the name of the deceased.

8. Finally, that unless restrained and the grant revoked, or rectified, the administrator’s (Respondents shall cause the other beneficiaries irreparable loss and damage).

9. In the submissions filed, the applicant submitted that Section 76 of the Law of Succession Act, Cap 160, gives the situations under which a grant of representation, whether or not confirmed may be revoked or annulled. That such circumstances include: -i.That the grant was obtained fraudulently by making false statement or by concealment of a material fact.ii.That the administrator has failed to proceed diligently with administration.

10. That the administrators have failed to produce a full and accurate inventory of assets and liabilities of the estate contrary to Section 83(g) and (e) of the Act. That they have also irregularly and unlawfully transferred some assets to their personal names or to 3rd parties by concealing the same contrary to Section 76(b) of the Act, and also licencing 3rd parties (Safaricom Ltd) and collecting rental income without declaring or accounting for the same.

11. As to the remedies sought, it was submitted that the said grant issued and confirmed in favour of the Respondents be revoked.

12. I have considered this matter, the circumstances of the same as deponed in the Affidavit of the applicant in support of this application, the annextures for the same and also the submissions filed by the Objector applicant. The Respondents have not controverted the evidence of the Objector/applicant.Salient in the evidence produced by the applicant are: -i.That the deceased owned several parcels of land including North Sakwa/Nyawita/883, Uyoma/Kokwiri/4194, North Sakwa/Ajigo/460 and North Sakwa/Ajigo/1041. ii.That the 3rd administrator illegally sub-divided North Sakwa/Nyawita/833 into North Sakwa/Nyawita/2260 and 2261 and transferred same to her name.iii.That 3rd administrator has licenced a 3rd party, Safaricom Ltd parcel No. North Sakwa/Nyawita/2260 and collects rental income from the same without declaring or accounting for the same to other beneficiaries.iv.That 3rd administrator has sub-divided Uyoma/Kokwiri/4194 into Uyoma/Kokwiri/4355 and 4356 and sold part of the mother title to a 3rd party.v.That 3rd administrator has illegally transferred part of North Sakwa/Ajigo/460 to her name and sub-divided same into North Sakwa/Ajigo/2406 and 2407. vi.That in obtaining the grant herein and having the same confirmed, the administrators listed only 1 property for distribution, being North Sakwa/Ajigo/362, leaving out other assets of the deceased. That the administrators therefore obtained and confirmed the grant by way of concealment of material facts.vii.That the administrators have unlawfully sub-divided North Sakwa/ Nyawita/883, North Sakwa/Ajigo/460 and Uyoma/Kokwiri/4194, and illegally allowed a 3rd party one Elly Randiga Oluoch to occupy North Sakwa/Ajigo/1041, which incidentally still remains in the name of the deceased.

13. An administrator of the deceased’s estate has his responsibilities well spell out in Section 83 of the Law of Succession Act, Cap 160 Laws of Kenya. It is a fiduciary duty aimed at collecting the estate, paying out liabilities of the estate and generally managing the estate to the advantage of the beneficiaries of the estate. This, therefore, means that appointment as an administrator of the deceased’s estate does not confer on the administrator any benefits over and above those of the other beneficiaries.

14. The administrator must be diligent and honest in managing the estate. He must distribute the whole estate equitably to all the beneficiaries. He must not confer any benefit or advantage to himself unfairly. And in managing the estate, he must account for and declare to the other beneficiaries all the income received or derived from the Estate.

15. The actions of the administrators herein as enumerated above depict a picture of administrators who have obtained and had the grant confirmed by concealment of material facts. Administrators who have apportioned a disproportionately big part of the estate to themselves to the disadvantage of the other beneficiaries. Administrators who have unfairly enriched themselves by failing to declare and or account for any rental income accrued from the estate. Administrators who have failed to declare any accounts of the estate. Administrators who have dealt in the estate of the deceased, even on those property not covered or declared at the time of petitioning for grant or at the time of having the said grant confirmed.

16. It is for this reason that this court finds the Administrators/Respondents to be in clear breach of their fudiciary duties and in total contravention of the duties expected of them as administrators under Section 83 of the Law of Succession Act. The application of the Objector, brought under Section 76 of the Law of Succession Act, therefore has merit. I allow the same and order as follows: -i.That all public entries and records undertaken by the Respondents before or on account of the certificate of confirmation of grant issued on 26-7-2017 herein regard to illegal change of proprietorship of the suit properties mother parcels be and are hereby declared null and void ab initio.ii.That all the titles of LR. Nos. North/Sakwa/2260 and 2261, Uyoma/Kokwiri/4355 and 4356 and North Sakwa/Nyawita/2406 and 2407 be cancelled and ownership of same to revert to the Mother parcels and to the name of the deceased for purpose of distribution of the estate.iii.Costs of this objection application to be borne by the Respondents.Orders accordingly.

DATED, SIGNED AND DELIVERED AT SIAYA THIS 15TH DAY OF NOVEMBER, 2023D.O. OGEMBOJUDGE15. 11. 2023Court:Ruling read in Open court in the presence of Mr. Jaoko for Objector and the absence of Mr. Okongo for Administrator.D.O. OGEMBOJUDGE15. 11. 2023