[2022] KEHC 3308 (KLR)

In re Estate of Justo Were Oloo alias Were Oloo (Deceased) (Succession Cause 237 of 2015) [2022] KEHC 3308 (KLR) (7 July 2022) (Ruling)

Neutral citation: [2022] KEHC 3308 (KLR)

Republic of Kenya

In the High Court at Migori

Succession Cause 237 of 2015

RPV Wendoh, J

July 7, 2022

IN THE MATTER OF: THE ESTATE OF JUSTO WERE OLOO alias WERE OLOO (DECEASED)

Between

John Opudo Oloo

Applicant

and

Josephine Bochere Mogiro

1st Respondent

Land Registrar Migori

2nd Respondent

Ruling

1. By an application dated 24/8/2021, the applicant, John Opudo Oloo, filed a Notice of Motion Application seeking the following orders: -1. That the caution placed on Land Parcel No. Suna East/Kakrao/509 by the 1st respondent herein on the 11/12/2014 was unlawful, illegal and done without consultations and ought to be removed forthwith as its continued existence is denying the proprietor enjoyment of his property and subdivision of the estate to other beneficiaries as per the Certificate of Confirmation issued on 3/3/2021. 2.That the caution was imposed based on false allegation and claim of purchaser’s interest.3. That the continued existence of the said caution and restriction is causing irreparable loss to the applicant to continue enjoying his property peacefully and subdivide the estate to other beneficiaries.4. Costs be in the cause.

2. The application is based on the grounds appearing on its face and the affidavit of John Opudo Oloo, the applicant. The applicant deponed that he is the administrator of the estate of Justo Were Oloo, the deceased, owner of Land Parcel No. Suna East/Kakrao/509 vide a certificate of confirmation of grant dated 3/3/2021; that after confirmation, he proceeded to the lands registry to have the estate of the deceased subdivided as per the confirmed grant and he discovered that there was a caution placed by the 1st respondent on allegations of purchaser’s interest; that the 1st respondent has never purchased a portion of the said land thus misleading the registrar, as she is a stranger to the parcel of land.

3. The applicant stated that prior to the confirmation of the said grant, the 1st respondent was served to attend court to address the court on the issue of the objection but she failed to attend. The application to remove the caution from the parcel of land should be allowed.

4. The 1st respondent filed grounds of opposition dated 12/11/2021. The grounds faulted the application for being incompetent, frivolous, an abuse of the court process and it does not disclose the provisions of the law under which it is brought; that the 1st respondent has a legal and equitable interest over the property and the application is meant to deny her right over the suit property.

5. Both parties filed written submissions. The applicant filed submissions dated 11/2/2022 and submitted that the grant was issued on 5/10/2015 and it took almost three (3) years to be confirmed because other parties were claiming purchaser’s interest; that the summons for confirmation was heard and cgrant onfirmed on 25/11/2019 by consent of all the beneficiaries who had proved their entitlement to the estate; that the 1st respondent having registered a caution on the land on 11/12/2014 never challenged the issuance of grant or the confirmation of the grant; that the 1st respondent has never filed any case against the estate of the deceased; that 1st respondent has not disclosed the type of legal or equitable right over the said property; that the respondent has not availed to this court any sale agreement yet the caution was placed with the reason that the respondent was claiming purchaser’s interest.

6. In rebuttal, the 1st respondent filed submissions dated 9/2/2022. It was submitted that Daniel Onyancha Obiri (Deceased) purchased a portion of the land measuring 1. 0 Ha from the deceased’s estate; that the said purchaser took physical possession of the land and put up his permanent homestead and was later buried thereon. The 1st respondent submitted that he is the sister of the purchaser. It was further contended that the applicant has failed to administer the said estate equitably and fairly and he wants to evict the rightful purchasers. The 1st respondent submitted that the caution placed thereon is legally tenable and can only be removed once the interests of the Estate of Daniel Onyancha (Deceased) are taken into account and given a share of one (1) Ha of the suit land. It was also submitted that the principle of adverse possession is applicable.

7. I have considered the application dated 24/8/2021, the grounds of opposition dated 12/11/2021 and the rival submissions. The main issue for determination is whether the applicant’s prayer can be granted.

8. The 1st respondent claims a purchaser’s interest in the deceased’s estate, as the sister of the deceased purchaser, one Daniel Onyancha Obiri.

9. A purchaser’s interest in the estate of a deceased person was captured in the case of HCC (NKS) 865 OF 2013 In theEstate of Joseph Mutua Munguti(deceased)2018 KLR, it was held: -“According to section 3 of the Act “estate” means “the free property of a deceased person” while “free property”, in relation to a deceased person, means “the property of which that person was legally competent freely to dispose during his lifetime, and in respect of which his interest has not been terminated by his death.” It is therefore clear that the only property that forms part of the estate of the deceased is that property which the deceased herein was legally competent to dispose of during his lifetime and in which by that time his interests had not been terminated.”From the above decision, to be able to transfer the said property the 1st respondent has to demonstrate that the subject property was the deceased’s free property.

10. In order to prove that the land belonged to the deceased purchaser, the 1st respondent produced the following documents attached to her submissions being: -a.A copy of the chief’s letter dated 16/12/2014. b.Copy of the official search.c.Copy of the advocate’s letter dated 11/12/2014. d.Copy of a letter addressed to the Assistant County Commissioner.

11. As a general principle, submissions are not an avenue for adducing evidence. The 1st respondent ought to have filed a replying affidavit and annexed the above documents in order for the court to assess and consider the same at the time the summons for confirmation was heard. Mwera, J (as he then was) in Erastus Wade Opande v Kenya Revenue Authority &another Kisumu HCCA No. 46 of 2007 held: -“Submissions simply concretise and focus on each side’s case with a view to win the court’s decision that way. Submissions are not evidence on which a case is decided.”

12. Section 76 of the Law of Succession Act provides that a grant of representation whether confirmed or not can be annulled. One of the grounds is when the grant was made through concealment of facts either inadvertently or ignorantly.

13. A party who wishes to have a confirmed grant annulled or revoked is required to move the court appropriately for all parties to be heard on the application for the revocation of the grant. It is not possible to revoke, annul or amend the grant or include an interested party to be part of the deceased’s estate through an application made to the registrar. The 1st respondent had an opportunity to ventilate her claim before the grant was confirmed but she did nothing to do so. Even now, it is the applicant who has come to court, the 1st respondent has not moved this court for revocation of the grant. So far it cannot be ascertained whether the 1st respondent has any legitimate claim to the deceased’s estate.

14. In any event, the 1st respondent has submitted that the principle of adverse possession is applicable in this instance. I need not rehash the law to learned Counsel for the 1st respondent on which court has the proper jurisdiction to determine issues relating to land and more so a claim for adverse possession. I should also point out that the 1st respondent is a sister to an alleged deceased purchaser and in the event. She decides to litigate any claim on behalf of her deceased brother, she should obtain letters of administration ad litem to give her capacity to do so. So far there is no evidence that the 1st Respondent has the capacity to lay any claim to the deceased’s property on behalf of her brother.

15. I also wish to point out that I have considered the court record and the proceedings prior to the confirmation of grant. All the beneficiaries and those entitled to the estate as purchasers were heard by Hellen Omondi J on 7/11/2016. On 6/7/2016, the court ordered that all the beneficiaries be served including the 1st respondent. When the cause came for hearing on 14/8/2016, the applicant stated that the 1st respondent had been served orally but the court directed that proper service be effected. The matter was again before the court to confirm service of the 1st respondent and the court was satisfied that the 1st respondent was served but the other beneficiaries were not served. The cause was stood over to 11/11/2016 and when the court once more confirmed that the 1st respondent was served but she was absent.

16. From the sequence of events above, the 1st respondent was never keen to pursue her interest if any, as a purchaser like the other purchasers. She was indolent and equity does not aid the indolent. From 2016, the 1st Respondent slept on her rights and cannot hold all the beneficiaries of the deceased’s estate at ransom. She has not explained the lapse of time from 2014 when she placed the caution on the deceased’s title.

17. There are no appropriate orders which can issue in favour of the 1st respondent.

18. Consequently, I allow the application dated 24/8/2021 and grant Order No. 1 as prayed that the caution placed on Land Parcel Suna East / Kakrao 509 on 11/12/2014 be removed forthwith. The order be served on the land Registrar.

19. There be no orders as to costs.

DATED, DELIVERED AND SIGNED AT MIGORI THIS 7TH DAY OF JULY,2022. R. WENDOHJUDGERuling delivered in the presence ofMr. Jura for the Applicant.Mr. Bosire holding brief Mr. Nyagesoa for the 1st Respondent.No appearance for the 2nd Respondent.Evelyn Nyauke Court Assistant.**