[2019] KEHC 8018 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

PROBATE AND ADMINISTRATION CAUSE NO. 660 OF 1988

IN THE MATTER OF THE ESTATE OF JOHN NIKOLAI BWIRE OSOGO DECEASED

RULING

1. The deceased herein JOHN NIKOLAI BWIRE OSOGO died domiciled in Kenya on 9. 12. 1979 leaving a Will which is undated.

2. On 18. 7.1988, PAUL OSOGO one of the executors named in the Will petitioned the Court for grant of probate.

3. There were two other Executors namely PETER LEO ONALO and KASSIM LAKHA who renounced their rights and title to Probate Execution of the said Will.

4. The Grant of Probate was issued to PAUL OSOGO ON 6. 10. 1988.

5. On 8. 3.2017, the Executor filed in Court a Summons for Confirmation dated 3. 3.2017 supported by an Affidavit of even date.

6. In the Supporting Affidavits to the summons for confirmation dated 8th March 2017 the executor stated that the deceased died leaving an undated will and was survived by 12 children as follows;

(i) DOLOROSA APONDI OSOGO

(ii) MARTHA OSOGO

(iii) EMMA CAROLINA OSOGO

(iv) JACOB GERALD OSOGO

(v) PETER JOSEPH OSOGO

(vi) TEOFANO JOSEPH OSOGO

(vii) MARGARET OTARO OSOGO

(viii) VERONICA NABWIRE OSOGO

(ix) STACY NAFULA MWANGALA

(x) TEOFANO WANDERA OSOGO

(xi) JOAN STELLA NABWIRE OSOGO.

(xii) ROSEMARY AUMA

7. The Executor also stated that the Deceased had four wives namely:

(a) MARY AGOLLA OSOGO (Now deceased)

(b) ANASTACIA OSOGO

(c) TEODORA OSOGO

(d) SALOME OBUYU BWIRE

8. On 24th March 2017 the Objector, THEOPHANO JOSEPH OSOGO filed an affidavit objecting to the Confirmation of Grant.

9. In the said Affidavit dated 24. 3.2017 the objector stated as follows (in part);

(i) THAT he is the second son from the 2nd wife of the deceased by name ANASTACIA NERIMA OSOGO and that he had the Permission of his sister and brother, Margaret Otaro Osogo and Peter Joseph Osogo to swear the Affidavit.

(ii) THAT at the time the Executor obtained grant of Probate on 6. 10. 1988, the Objector and his sister and brother were all Minors.

(iii) THAT he is aware that there are two Wills in respect of his father’s Estate.

(iv) THAT he has learnt that the Matrimonial Property where his mother lives has been bequeathed to other beneficiaries and he is apprehensive that his mother will be rendered homeless if the grant is confirmed.

(v) THAT the deceased operated a hotel on a piece of land in Busia Plot No. 3 Bukoma Sub-Location and the Property has been left to select beneficiaries as share-holders to operate the business which the land was given to other beneficiaries which is not a tenable way of distributing the Property.

(vi) THAT the Applicant together with his brother have invested significant time and money in the said business and are apprehensive that the beneficiaries of the said land and business will sell and leave him and his brother disadvantaged.

(vii) THAT the will did not provide for other wives of Deceased namely TEODORA OSOGO and SALOME BUYU BWIRE and therefore this matter requires settlement and re-distribution to cater for all Dependants of the deceased.

10. The hearing of the objection proceeded by viva voce evidence. The Parties filed their Written Statements and Submissions which I have duly considered. I have also considered the oral evidence adduced by the Parties and my findings are as follows:

(i) I find that there is no dispute that the Deceased died leaving an undated Will.

(ii) There is also no dispute that the Deceased left four wives and 12 children including the Objector, his mother, brother and sister. I refer to Chiefs letter dated 17th February 2017 which states:

“The deceased was survived by 4 wives namely:

1. MARIA AGOLLA OSOGO (1st Wife and now Deceased)

Children;

(a) DOLOROSA APONDI OSOGO

(b) EMMA CAROLINA OSOGO

(c) JACOB GERALD OSOGO

(d) MARTHA OSOGO

2. ANASTACIA OSOGO ( 2nd Wife) – alive

Children;

(a) PETER JOSEPH OSOGO

(b) TEOFANO JOSEPH OSOGO

(c) MARGARET OTARO OSOGO

(d) VERONICA NABWIRE OSOGO

(e) STACY NAFULA MWANGALA

3. TEODORA OSOGO (3rd Wife) – Alive

Children;

(a) TEOFANO WANDERA OSOGO

(b) JOAN STELLA NABWIRE OSOGO

4. SALOME OBUYU BWIRE (4th Wife) – Alive

Children;

(a) ROSEMARY AUMA

(iii) The Executor petitioned for Probate on 18. 7.1988 and the grant of Probate was issued on 6. 10. 1988.

(iv) There is no dispute that two of the Executors named in the Will renounced their rights leaving the Executor as the only executor of the Will.

(v) There is no dispute that the executor has been running the estates as stated in his Witness Statement filed in Court on 10. 2.2019.

(vi) There is no dispute that the family has attempted to do mediation but the same did not succeed and they decided to come to court for the hearing and determination of their case.

11. I find that the issues for determination in this case are as follows;

(i) Whether the deceased left a valid will.

(ii) Whether the Estate of the Deceased should be re-distributed.

12. On the issue as to whether the deceased left a valid Will, I find that the answer is NO. the reason being that the Will annexed to the Petition herein is not dated, it is full of cancellations and lacks clarity in the manner of distribution of the Estate. There are also two sets of the said Will and it is apparent that it is a doctored document.

13. I also find that the Will has left out several beneficiaries including the 3rd and 4th wives of the deceased. It could be that it was made before the testator married his 3rd and 4th wives.

14. It is therefore not clear whether the Will was written before or after the deceased married the 3rd and 4th wives. The law provides that a Will is revoked upon subsequent marriage of the Testator unless the Will is made in contemplation of the said Marriage.

15. I accordingly find that the undated, unclear, altered Will of the Testator is not valid. The Executor did not attempt to call any witnesses to testify on how the same was written or obtained by him. I find that the deceased in this case did not leave a valid Will.

16. On the issue as to whether the Estate of the Deceased should be re-distributed, I find that the answer is YES.

17. Having established that the deceased did not leave a valid Will, I revoke and annul the grant of Probate issued to PAUL OSOGO on 6. 10. 1988.

18. I direct that the family appoints four administrators to represent each of the four wives of the deceased.

19. I further direct that the Estate of the Deceased be distributed under the Laws of intestacy as the Deceased did not leave a valid Will.

20. I direct that PAUL OSOGO to hands the Grant of Probate and Grant of Letters of Administration be issued to the four Administrators to be agreed upon by the family.

21. This case will be mentioned after 30 days on 3. 6.2019 for the family to agree on the four administrators failure to which this court will appoint the Administrators of the Estate of the deceased.

DELIVERED, SIGNED AND DATED IN OPEN COURT THIS 3RD DAY OF MAY, 2019

ASENATH ONGERI

JUDGE OF THE HIGH COURT OF KENYA, NAIROBI