[2018] KEHC 5196 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT KISUMU

SUCCESSION CAUSE NO. 181 OF 1990

IN THE MATTER OF THE ESTATE OF LEONARDOGWANG WAGA (DECEASED)

BETWEEN

TOBIAS OWINO OGWANG.........PETITIONER/RESPONDENT

AND

MOSES OTIENO OGWANG.................OBJECTOR/APPLICANT

JUDGEMENT

Introduction

1. LEONARD OGWANG WAGA(deceased) died sometimes on 13th March, 1990. It is pleaded that the deceased’s estate comprises of land parcel Nos.KISUMU/KORU/328and KISUMU/KORU/637. Letters of administration were issued in Petitioner’s favour on 12th February, 1991. On 4th November, 1991, the grant was confirmed solely in his favour. This prompted the objection that is the subject of this judgment.

OBJECTION

2. By summons dated 18th July, 2017 brought under Section 76 of the Succession Act (the Act) objector sought orders for revocation of grant and to restrain the petitioner from dealing with land parcel Nos.KISUMU/KORU/328and KISUMU/KORU/637. The application is supported by the objector’s affidavit sworn on 18th July, 2017 in which he avers that the petitioner has disinherited other family members.

OBJECTOR’S CASE

3. In his evidence, objector stated thathe had lived on the disputed land since 1940. It as his evidence that the deceased, who was his uncleencroached on the said land and in 1972 caused it to be registered in his name while the objector was sick.In cross-examination by Mr. Munuang’o, counsel for the petitioner, objector conceded that land parcel Number. EAST UGENYA/ANYIKAA/1620and 1622were registered in his name on 11. 6.77 but land parcelNo. EAST UGENYA/ANYIKAA/1621which alsobelonged to him was fraudulently registered in the name of the deceased on the same date. He faulted deceased for taking advantage of his ill-health to take away his land. PW2 John Komo the protestor’s assistant and PW4, William Lala, assistant chief Sihayi Sub-location confirmed that a title deed for the suit land that was issued to the objector on 12. 9.00 was cancelled on the round that objector had not obtained letters of administration for the deceased’s estate. PW3 Jacob Wanjiri stated that he was a member of the Anyiko Land Adjudication Committee but that he did not know the deceased or the land in dispute. PW5 Dickson Okere Dulo, Land Registrar, Siaya confirmed that the suit land was still registered in deceased’s name.

PETITIONER’S CASE

4. DW1 Ochieng Musando, objector’s brother and petitioner’s cousin told court that the land in issue belonged to petitioner’s father and that petitioner was the rightful heir. In cross-examination by Mr. Munuang’o, counsel for the petitioner, the witness stated that the disputed land initially belonged to their great grandfather, Gode, and that him and objector were also entitled to a share of the said land. DW2 Morris Ogola Opondo, petitioner’s son, stated that his paternal grandfather. Okech and objector’s maternal grandfather Ogwok, were son and daughter of Gode. He stated that he was the rightful heir to his father’s estate.

Analysis and Determination

5. Evidence contained in chef’s letter disclosesthat the deceased had 3 sons. They are:

i. Sylvanus Okech Olela (deceased)

ii. Maurice Onyango Olela (deceased)

iii. Felix Opondo Olela (Petitioner)

6. Section 38 of the Law of Succession Act provides:-

“Where an intestate has left a surviving child or children but no spouse, the net intestateestateshall,subject to the provisions of sections 41 and42, devolve upon the surviving child, if there be only one, or shall be equally divided among the surviving children.”

7. There’s no dispute that deceased was survived by one child and grandchildren. There’s also no dispute that the deceased is objector’s uncle. The issue in question is whether objector is entitled to either a share or the whole of deceased’s estate.

8. I have considered the evidence on record and the green card for land parcel No. EAST UGENYA/ANYIKAA/1621and it evidently demonstrates that it was first registered in the name of Olel Okech (Deceased) on 11. 6.77. The objector’s allegation that the said land belonged to his great grandfather, Gode,and that he was entitled to the said land is not supported by any tangible evidence and therefore lacks merit. Objector’s claim that the deceased caused land parcel EAST UGENYA/ANYIKAA/1620to be registered in his name while the objector was sickis unconvincing considering thatland parcels No.EAST UGENYA/ANYIKAA/1620and 1622were on the same day registered in his name of the objector.

9. There’s evidence that objector’s attempt to unlawfully have the land registered in his name was thwarted by the Land Registrar who cancelled the title deed issued to the objector, the same having been obtained without first applying for letters of administrator to the deceased’s estate. Consequently, I find that the objector’s claim does not meet the threshold of the provisions of Section 38 of the Law of Succession Act.

10. As regards the objector’s claim over deceased’s land by operation of the principle of adverse possession, I have considered if this court has jurisdiction and I am guided by the decision in the case of Samuel Kamau Macharia vs. Kenya Commercial Bank & 2 Others, Civil Appl. No. 2 of 2011, where the Supreme Court observed that:

“A Court’s jurisdiction flows from either the Constitution or legislation or both. Thus, a Court of law can only exercise jurisdiction as conferred by the Constitution or other written law. It cannot arrogate to itself jurisdiction exceeding that which is conferred upon it by law. We agree with counsel for the first and second respondents in his submission that the issue as to whether a Court of law has jurisdiction to entertain a matter before it, is not one of mere procedural technicality; it goes to the very heart of the matter, for without jurisdiction, the Court cannot entertain any proceedings… Where the Constitution exhaustively provides for the jurisdiction of a Court of law, the Court must operate within the constitutional limits. It cannot expand its jurisdiction through judicial craft or innovation.”

11. The matter of adverse possession is pending in Land & Environment Case No. 100 of 2015 before Land and Environment Court in Kisumu which has the Constitutional and legislativejurisdiction to deal with disputes of such nature. This court therefore declines the invitation to arrogate to itself jurisdiction exceeding that which is conferred upon it by law.

12. Having said that, I find no evidence to support the objector’s case that is he is entitled to the deceased’s estate.

13. Accordingly, and from what is stated hereinabove, I find that the objection is unmerited and proceed to make order as follows: -

i. Thatthe Objection is hereby dismissed.

ii. The petitioner may proceed to list the cause for confirmation of the grant

iii. The Objector is hereby ordered to pay costs of this objection to the petitioner

DATED, DELIVERED AND SIGNED THIS26THDAY OF JULY2018

T. W. CHERERE

JUDGE

Read in open court in the presence of-

Court Assistant - Felix

Objector- Mr. Achura

Petitioner- Mr. Awele/Mr. Omondi