[2022] KEHC 3127 (KLR)

In re Estate of Lucy Edna Ouma (Deceased) (Succession Cause 369 of 2013) [2022] KEHC 3127 (KLR) (16 June 2022) (Ruling)

Neutral citation: [2022] KEHC 3127 (KLR)

Republic of Kenya

In the High Court at Busia

Succession Cause 369 of 2013

JR Karanja, J

June 16, 2022

IN THE MATTER OF THE ESTATE OF LUCY EDNA OUMA (DECEASED)

Between

Andrew Lumumba Kechula

Applicant

and

Corel Odanga Ouma

Respondent

Ruling

[1]The application dated 29th December 2021 by the objector, Andrew Lumumba Kechula, seeks orders that the orders made on 16th December 2021 revoking the amended grant issued on 18th June 2020, be set aside and alternatively, the objector be appointed the administrator of the estate of the deceased, the late Lucy Edna Ouma (deceased).In the alternative to the foregoing, the objector seeks leave to appeal against the orders of 16th December 2021 and extension of time to appeal. The grounds on which the application is anchored are contained in the appropriate summons dated 29th December 2021 and are fortified by the averments of the objector in the supporting affidavit deponed by himself on the 29th December 2021. The court record is bereft of a replying affidavit and/or grounds of opposition by the respondent, Cornel Odanga Ouma or Cornel Odiaga Ouma.

[2]However, in his written submissions dated 6th June 2022, the respondent concedes prayer one (1) of the application for what he considers to be in the interest of justice. It is on that basis that the applicant in his submissions dated 8th June 2022 urges this court to allow the application even though the respondent contends that prayers two (2), three (3), four (4) and five (5) of the application are untenable for being premature. Basically, a party’s concesion of one prayer or every prayer contained in an application does not deprive the applicant of his legal obligation to establish and prove the grounds in support of his application.

[3]In that regard and in relations to ground 1,2,3,4 and 5 of the application the court record shows that the original grant was issued not on 22nd July 2014 but the 12th February 2014. It was however, re-issued on the 22nd July 2014 and effectively confirmed on 27th November 2014. The certificate of confirmation of grant was dated the 3rd December 2014, in favour of the two petitioner’s parents of the deceased, Cornel Odiaga Ouma and Colleta Odiaga Ouma.However, on the 23rd January 2015, an application for revocation of the grant dated 19th January 2015, was filed by Andrew Lumumba Kechula, described therein as the objector and is herein, the applicant.After the hearing of the application the court rendered its ruling on 25th February 2020, in favour of the applicant meaning that the original grant and the accompanying certificate of confirmation of grant stood revoked forthwith.The court made a further order to the effect that the objector (applicant) and the respondent herein be appointed joint administrators of the estate of the deceased and for them to file a proposal for confirmation of grant within thirty (30) days of the ruling failure to which the new grant would automatically be revoked.

[4]The new amended grant was thus issued in favour of both the applicant and respondent on 18th June 2020 and on the 9th July 2020, the applicant filed the undated summons for confirmation of the grant. The respondent opposed the application vide the grounds of opposition filed herein on 9th October 2020 and the replying affidavit dated the 14th July 2021 and filed herein on 18th January 2021.

10. Both parties gave their own proposals on the mode of distribution of the estate.The matter was placed in court on 9th March 2021 for the hearing of the applicant’s summons for confirmation of grant said to be dated 16th June 2020. Both parties were represented by their respective counsel and in view of the respondent’s objection or protest directions were given to the effect that the protest be heard by way of written submissions and affidavit evidence on 13th April 2021, on which date the applicant appeared in person while learned counsel, Mr. Okutta, appeared and held brief on behalf of Mr. Ojienda for the respondent.The court was notified that the applicant’s submissions had been filed but not those of the respondent. The matter was therefore adjourned and stood over to 11th May 2021.

[5]However, before the appointed hearing date, the matter was mentioned by the court in chambers in the absence of the parties for re-scheduling of the hearing date to 8th June 2021. The parties were to be served with the necessary hearing notices by the deputy registrar which task was accomplished as both parties appeared in court on 8th June 2021 through Mr. Were for the applicant and Mr. Wanyama holding brief for Mr. Ojienda for objector/protestor.Both parties confirmed filing of their respective submissions and requested for a ruling date which was set by the court on the 16th June 2021. Indeed, on that date, this court delivered the impugned ruling.

[6]In the ruling, the court specifically disallowed the applicant’s application for confirmation of grant filed herein on 9th July 2020 for being pre-mature and unmerited. By extension, the respondent’s protest and/or objection was party allowed.Nonetheless, the court directed the parties to take out fresh summons for confirmation of grant within four (4) months from the date of the ruling and in default the fresh amended grant issued on 18th June 2020, shall stand revoked.Apparently, the period passed by without any positive action from the parties and on the 28th October 2021, when the matter was mentioned in court in the presence of the applicant’s counsel, Mr. Fwaya, the court indicated that the grant had since been revoked for failure by the parties to take out fresh summons for confirmation of grant within the prescribed period of four (4) months.However, after hearing Mr. Fwaya and in the interest of justice, the period was extended by a further three (3) months and the matter stated for mention on 16th December 2021 for a status report and/or further orders.

[7]Indeed, the matter was mentioned on 16th December 2021 but neither of the parties appeared in court either personally or through counsel. Consequently, the order for revocation of grant in terms of this court’s ruling of the 16th June 2021 which gave a four (4) months period for parties to take out fresh summons for confirmation of grant as extended on 28th October 2021 was confirmed.Clearly, as may be borne by the court record, the applicant’s grounds one (1) to five (5) of the present application are devoid of merit, unproved by cogent and credible evidence and a demonstration of lack of good faith on the part of the applicant and his complete ignorance of the course this matter had taken from inception up to 16th June 2021 and indeed 16th December 2021. In the circumstances, grounds one to five are overruled and dismissed.

[8]The remaining grounds six (6) and seven (7) are irrelevant for the purposes of this application as the fresh amended grant was issued in terms of the court order made on 25th February 2020, but was never confirmed and remained unconfirmed as at the 28th October 2021 and the 16th December 2021, despite the court order made on 16th June 2021. The delay in finalizing this matter at this level must be attributed to the parties indolence or inflated egos. They cannot expect justice to be done with their continuous and relentless, disagreements on the mode of distribution of the estate of the deceased oblivious of the fact that justice delayed is justice denied.Otherwise, the present application is dismissed for want of merit with each party bearing their own coats.However, in exercise of this court’s inherent powers donated by Rule 73 of the Probate & Administration Rules and for realizing the ends of justice and prevent further abuse of the process of this court, it is hereby ordered that the order made by this court on 16th December 2021 revoking the fresh amended grant issued on 18th June 2020, be and is hereby set aside on condition that the parties do agree on the mode of distribution of the estate after which they should jointly take out summons for confirmation of the grant within the next four (4) months from this date hereof. In default the matter be referred to the Public Trustee for distribution of the estate in accordance with the law and this file be closed forthwith.Ordered accordingly.

J.R. KARANJAHJ U D G E

DATED AND DELIVERED THIS 16TH DAY OF JUNE 2022