[2018] KEHC 6669 (KLR)

IN THE HIGH COURT AT KISUMU

SUCCESSION CAUSE NO. 893 OF 2015

IN THE MATTER OF THE ESTATE OF JOHN OYOSI AMOLLO (DECEASED)

AND IN THE MATTER OF APPLICATION

BETWEEN

JULIUS ABUTO AMOLLO................................................PETITIONER

AND

KENNEDY ODHIAMBO OBANGO........OBJECTOR/RESPONDENT

RULING

1. John Oyosi Omollo (“the deceased”) died intestate on 3rd May 2012 and Julius Abuto Amollo (“Julius”) petitioned for a grant of letters of administration intestate on 14th August 2015. In his affidavit in support of his Petition for letters of administration intestate, Julius named Daniel Amollo Ongaro, Wycliffe Ouma Ongaro, David Ochieng Obango, Kennedy Ochieng Obango (“Kennedy”) and himself as the only surviving beneficiaries of the estate of the deceased. The deceased left only one asset at the time of death; KISUMU/GEM RAE/148 (“Plot 148).

2. Before the grant was issued, Kennedy objected to the application for issuing of the grant on the ground that Plot 148 did not form part of the deceased’s estate. Kennedy produced a title deed indicating that he was the registered proprietor. The petitioner also produced a search showing that the land was registered in the name of the deceased. Before the conflicting ownership could be resolved, Daniel Mose Ooko Ogutta (“Ogutta”) filed an affidavit claiming a buyer’s interest in a portion of the land. It also emerged that a primary school, Bwaja Primary School, had also been built on same land.

3. On 11th April 2017, I ordered the all the parties to appear before Mr. Mwamu, Advocate, in a bid mediate the matter. On 12th June 2017 Mr. Mwamu filed his report of the outcome of the mediation process. The report established the following:

Daniel Amollo Oyosi (“Daniel”), who was the initial registered proprietor Plot 148,gave a portion of the land for construction of Bwaja Primary School and that the portion was well demarcated.

Daniel sold a portion of the land to the family of the late John Ogutta Obango who was the father of Ogutta who were in occupation of the part of the property.

4. Following the report, I directed that the land be surveyed and the portions occupied by Bwaja Primary school and the family of John Ogutta Obango be demarcated. After the demarcation, the court on 27th November 2017 ordered that the family of John Ogutta and Bwaja Primary school be issued with title deeds for their respective parcels. The remaining 1. 970 Ha in the name of the estate of deceased is the subject of these proceedings.

5. Several aspects of the case are not disputed. As stated elsewhere the deceased was the son of the Daniel who was the initial registered proprietor of Plot 148. After Daniel’s death the deceased had the land transferred to his name on 11th January 2010 and obtained a title deed. Daniel had two wives; Leotina Amolo (deceased) and Maria Akeyo Amollo. Leotina was blessed with two children these are Consolata Akoth and Joshua Obango Amolo (“Joshua”) who is deceased. Consolata got married and moved away. Joshua sired six children namely Kennedy, the objector herein, George Ochieng Obango, Lydia Atieno Onyango, Gloria Awino and Olga Akinyi. Maria gave birth to five children; the deceased herein, Maritha, Monica Owino, Yunia Ogeto and Zilpa Olielo.

6. The petitioner contends that his mother, Magdalina Achola Abuto (“Magdalina”) was inherited by Daniel from Abuto Oyosi and as a result of the that union he was born. Kennedy and his witnesses denied that Abuto was the son of Daniel. According to him, the petitioner and his family have land in a place known as Kabuop which was left for them by the late Abuto Oyosi and they should all return to their land.

7. Pastor Mariko Olwal (PW 2) painted a picture of how the petitioner and his family came to live on Daniel’s land. He testified that Magdalena was married to Abuto and together they sired several children including the petitioner who was named after his father. After Abuto’s death, Daniel inherited Magdalena but their union was short-lived and Magdalena went to live with a man in Rift Valley. Later they too separated and Magdalena moved back to Daniel’s land where Daniel’s brother Keke built her a house while Daniel was away in Karachuonyo. When Daniel returned he enquired as why Keke had built Magdalena a house on his land and Keke stated that her stay was only for a while and she would return to her land in Kabuop.

8. PW 2 testified that shortly thereafter Daniel got very ill and died while Magdalena was still living on his land and after that she never left to go back to Kabuop. PW 2 recalled that after Daniel’s death, his sons tried to remove Magdalena and her children but they never did. PW 2 was categorical that the petitioner and his family are not part of Daniel’s family. This testimony was corroborated by the testimony of Monica Owino Ngeta (PW 5) who stated her brother tried to remove Magdalena from the land after Daniel’s death but she refused to vacate the land.

9. On the other hand, Magdalena testified that Plot 148 initially belonged to her mother in law, Elizabeth Oloo which was given to her by her husband Daudi Oyosi and Daniel later transferred it to his name. Magdalena testified that after her husband’s death, Daniel inherited her and they lived together and sired Julius. During adjudication, Daniel had the land registered in his name and later inherited Magdalena after Abuto’s death.

10. Richard Nondo Keke (DW 4) testified that after Abuto’s death, Daniel inherited Magdalena and she later went to work in Rift valley. She returned in 1972 whereupon Keke built her a house. DW 4 testified that the land never belonged to Daniel and he registered it in his name on the promise that he would later transfer it to Magdalena.

11. The court on its own motion summoned the area chief, George Onyango Okongo, to shed light on the matter. He testified that all the parties have been living on the land together even the before the death of the deceased. He was of the view that all of them are entitled to a share of the land.

12. From the totality of the evidence, I find that Daniel inherited Magdalena after Abuto’s death and although Magdalena left and went to live in Rift Valley but she later returned in 1972 and Daniel’s brother Keke built her house while Daniel was away. It is also evident that after Daniel returned home he never chased her away. Magdalena continued to live on the land. This fact was confirmed by the Chief in his evidence. The objector did not establish that Magadalena had some land in Kabuop. I am aware that the burden of proof to show that Julius was not the son of Daniel was on Kennedy and I am satisfied that he did not discharge this burden.

13. I therefore find and hold that the petitioner and objector are beneficiaries of the deceased’s estate and are entitled to a share of the deceased estate. I therefore order as follows;

(a) The grant of letters of administration intestate herein is issued to JULIUS ABUTO AMOLLO and KENNEDY ODHIAMBO OBANGO.

(b) Since the land, KISUMU/GEM RAE/148 is occupied by the family Magdalena Acholla Abuto and the family of Joshua Obango Amolo, I direct the Assistant County Commissioner, the District Surveyor and the local administration including the elders identify the boundaries settled by the respective families and the share of each beneficiary and file a report in this court within forty-five (45) days from the date hereof to enable the court confirm that grant.

(c) In the meantime, provision shall be made for the following on the said land;

(i) Bwaja Primary School – 0. 490Ha

(ii) John Ogutta Obango -1. 0 Ha

(d) There shall be no order as to costs in the matter.

SIGNED AT NAIROBI BY

D. S. MAJANJA

JUDGE

DATED and DELIVERED at KISUMU this 31st day of May, 2018.

F. A. OCHIENG

JUDGE