[2024] KEHC 12291 (KLR)

In re Estate of Michael Riabi Opiyo (Deceased) (Succession Cause 322 of 2014) [2024] KEHC 12291 (KLR) (15 October 2024) (Ruling)

Neutral citation: [2024] KEHC 12291 (KLR)

Republic of Kenya

In the High Court at Busia

Succession Cause 322 of 2014

WM Musyoka, J

October 15, 2024

IN THE MATTER OF THE ESTATE OF MICHAEL RIABI OPIYO (DECEASED)

Ruling

1. This cause relates to the estate of the late Michael Riabi Opiyo, who, according to certificate of death, serial number O13451, of 18th January 2011, died on 28th September 2003. There is a letter, on the record, from the Chief of Bunyala Central Location, dated 25th May 2014, which indicates his “descendants” to have been some 17 individuals, namely Pascal Okwako Ngira, Stephen Odira Malingu, Paul Juma Mujibi, Victor Opiyo Musega, Edick Jachim Musega, Joseph Okwako Musega, Joseph Mujibi Musega, Michael Omolo Egesa, Nicholas Onyango Ngira, Fleria Auma Omumi, Margaret Anyango Mairo, Everline Apondi Ochieng, Agnes Bwire Ngira, Stephen Bwire George, Hendrick Kechula Mujibi, Monica Muongo Ebidongo and Juliet Sirago Musega. The nature of the relationship between the deceased and the 17 “descendants” is not disclosed.

2. Representation, in intestacy, was sought by Stephen Odira Malingu, vide a petition filed herein on 10th September 2014, in his capacity as nephew of the deceased. The deceased was said to have been survived by 7 individuals, being Pascal Okwako Ngira, Stephen Odira Malingu, Paul Juma Mujubi, Fleria Auma Omumi, Margaret Anyango Mairo, Everline Apondi Ochieng and Agnes Bwire Ngira. The deceased is said to have had died possessed of Bukhayo/Mundika/905. Letters of administration intestate were made on 2nd July 2015, to Stephen Odira Malingu , and a grant was duly issued on 5th July 2015. I shall refer to Stephen Odira Malingu hereafter as the administrator.

3. The administrator filed a summons for confirmation of grant, dated 14th January 2016. He listed the 7 individuals listed in the petition as the beneficiaries, who had also, allegedly, executed a consent to the proposed distribution. The confirmation happened on 23rd June 2016, the entire estate was devolved upon Stephen Odira Malingu. A certificate of confirmation of grant, in those terms, was issued on 27th June 2016, dated 24th June 2016.

4. I am tasked with determining an amended summons for revocation of grant, dated 17th March 2023. It is at the instance of John Okwako Pamba, who I shall refer to hereafter as the applicant. He claims that the grant was obtained through fraud and stealth. He describes the deceased as his grandfather, who had inherited his grandmother, Veronica Ambani. His grandmother lived in Mundika, on Bukhayo/Mundika/905, where the deceased came to live with her, after he moved from his home in Bunyala, following the death of her husband. During land adjudication that property, Bukhayo/Mundika/905, was registered in the name of the deceased, after the death of his grandmother. He says that he has just established that the property was no longer in his name, but had been registered in the name of the administrator, after succession was conducted. He asserts that he is entitled to the property. He states that he does not know the administrator, adding that he did not know his family, and he did not have a relationship with the family of the deceased. He asserts that he is the true survivor of the deceased, being his grandson. He further asserts that the grant was obtained through a process where material facts were concealed from the court. He states that the administrator registered himself as the sole beneficiary of Bukhayo/Mundika/905 to the exclusion of everybody else.

5. The applicant has attached a copy of a letter from the Chief of Bukhayo West Location, dated 23rd February 2023, and a certificate of official search, for Bukhayo/Mundika/905, dated 6th September 2013. In the letter, the Chief alleges that Bukhayo/Mundika/905 was wrongly registered to Michael Eliabi, who had inherited Veronica Ambani Abala, who ought to have been the rightful owner. It is indicated that Veronica Ambani Abala was since deceased, and the family had chosen her daughter-in-law, Salome Khaoya Pamba as the proposed administratrix. The survivors are listed as 6, being a daughter-in-law and 5 sons, namely Salome Khaoya Pamba, John Okwako Pamba, Joash Ouma Pamba, David Abala and Benson Okello Pamba. The search certificate indicates that Bukhayo/Mundika/905 was registered in favour of John Okwako Pamba on 31st July 1995.

6. The administrator swore an affidavit, on 17th April, 2023, in reply. He avers that Bukhayo/Mundika/905 was originally registered in the name of the deceased, and the applicant has not explained how he, the applicant, came to be registered as proprietor in 1995, when the registered proprietor was still alive. He argues that, although the applicant claims that he is a grandson of the deceased, he has not explained how he comes to rank in priority over the brothers and other relatives of the deceased. He asserts that the applicant had used fraud and other unprocedural processes to cause his name to appear as the registered owner of the subject title. He states that the Land Registrar had reverted the title to the name of the deceased, after conducting internal investigations. He says that his father was Mujubi Wedube Opiyo, and his siblings, by the same mother, were Charles Ngira Opiyo and the deceased. He asserts that the deceased never married, and he could not, therefore, have been the grandfather of the applicant. He asserts that only the children of the brothers of the deceased, that is to say the children of Mujubi Wedube Opiyo and Charles Ngira Opiyo, were entitled to the property in succession. He asserts that the said children all participated in the succession proceedings. He claims that the applicant had filed herein an affidavit, sworn on 29th June 2017, where he confessed that he had obtained registration of Bukhayo/Mundika/905 as proprietor after he had bribed a lands official, and the mess was corrected after his Advocates noted it. He annexes a letter, dated 28th May 2016, from the Chief of Bunyala Central Location, to explain the status of the Bunyala family.

7. I will now narrate the various documents annexed to the affidavit in reply. There is a letter, dated 18th June 2014, addressed to the County Land Registrar, on the seemingly irregular change of name in the registration details in the register for Bukhayo/Mundika/905. The certificate of official search of Bukhayo/Mundika/905, dated 18th August 2017, shows entry of a restriction, in 2014, after the change of registration particulars of 1995. The certificate of official search, dated 28th September 2015, reflects the reversion of the registration of Bukhayo/Mundika/905, to the name of the deceased. The affidavit of 29th June 2017, sworn by the applicant, indicates that he paid some money to lands officials, in 1995, to have the particulars, in the register for Bukhayo/Mundika/905, changed. The letter, dated 28th May 2016, from the Chief of Bunyala Central Location, identifies the persons who had survived the deceased, who are the same individuals listed in the petition.

8. The application was canvassed by viva voce evidence. The hearing happened on 26th September 2023, 21st November 2023 and 18th December 2023.

9. John Okwako Pamba was the first on the witness stand. He testified that his grandmother had been inherited by the deceased, after the demise of his grandfather. He stated that his grandfather was Abala Opiyo, who died in 1965. He identified his grandmother as Veronica Ambani. He stated that her grandmother and the property of his dead grandfather were inherited by the deceased. He stated that his grandmother lived at Munongo, and the deceased joined her there, coming from Budalang’i, Bunyala. He said that Abala Opiyo came from Bunyala, and he was a stepbrother of the deceased. Abala Opiyo came to live with in-laws, at Munongo. He stated that the family of Veronica Ambani, gave land belonging to them, to Abala Opiyo. He stated that he did not know the administrator. He stated that he had filed a letter from the Chief, of Bukhayo, dated 23rd February 2023. He explained how he got registered as proprietor of Bukhayo/Mundika/905. A person interested in buying Bukhayo/Mundika/905 approached him, and he consulted the lands office, and was advised on what to do, and he did it, and the land was transferred to his name. He asserted that Abala Opiyo did not get ancestral land, and that the administrator was not entitled to the land.

10. During cross-examination, he explained that he only saw the name of the administrator in the title, otherwise he did not know him prior. He said that he did not know whether the administrator was related to the deceased. He explained that Alfred Pamba Abala was his father, while Salome Khaoya was his mother. He said that Abala Opiyo was his grandfather, and the father of Alfred Pamba Abala. He described Veronica Ambani as his grandmother, and the mother of his father, Alfred Pamba Abala. He said that Simon Wanyama was a brother of his father, while Onyango Opiyo was a brother of his grandfather. He said Thomas Opiyo Nadegu was a son of Lucas Nadegu, and that he was related to them. He said the mother of his grandfather was Nasonga. He said that the father of the deceased was also the father of his grandfather. He pointed out, however, that his grandfather and the deceased had different mothers, being Nasonga and Namwemba. He explained that Bukhayo/Mundika/902 was registered in favour of Wanyama Pamba in 1971, while Bukhayo/Mundika/904 was registered in favour of Onyango Opiyo in the same year. He said that Bukhayo/Mundika/899 was registered in the name of Thomas Opiyo Nadegu in 1971, and Bukhayo/Mundika/905 in favour of Riabi Opiyo in the same year. He asserted that Bukhayo/Mundika/902 and 904 did not belong to his house, and that Bukhayo/Mundika/899 did not belong to the other house. He asserted that the said lands were not registered in trust. He denied bribing lands officials to get registration of Bukhayo/Mundika/905, but conceded that he gave out some money, and the details of ownership were changed. He said that he did not do succession for Bukhayo/Mundika/905, nor for any of the other lands, neither had he sold it. He said that it was the family of Abala that was objecting, and he was their leader. He said that David Pamba, Joash Pamba, Gladys and Alice were his siblings, and they supported his case. He said that he was not aware of any children of the deceased, and that he did not sire any with his grandmother. He said that he did not know of any siblings of the deceased, such as Mujibi and Ngira Opiyo. He said that he did not know of any wife of the deceased. He added that when the deceased died, he was buried in Bunyala, where he was born.

11. At re-examination, he stated that Abala was not given land by his in-laws, and that he shared out the lands amongst those in occupation.

12. Ojiambo Manyuru Osonyo testified next. He described the applicant as his grandson, for his father, Okwako Pamba, was a son of his sister. He said that Salome Khaoya was the mother of the applicant, while Abala was the father of Pamba Opiyo. He said that Opiyo was the father of Abala and Eliabi. He explained that Abala and Eliabi had different mothers, whose names he did not know. He stated that no one resided in or occupied Bukhayo/Mundika/905, but the Pamba family lived on or occupied the adjoining land, and it was that family that used that land.

13. Salome Khaoya Pamba followed. She came from Munongo, Mundika, and was the mother of the applicant, and the widow of Alfred Pamba Abala. She identified the father of her late husband as Abala Opiyo, while Veronica Abala was his mother. She identified Nasonga as the mother of Abala Opiyo. She explained that when Abala died, Michael Riabi moved into the boma. She said that he had no blood relationship with the people of that family. She mentioned that the members of the family, whose names she had mentioned earlier, were all buried on the land. She said that she did not know the administrator, nor that he had been appointed as such over the estate of the deceased. She stated that the deceased came into the picture to inherit the widow of Abala. She stated that the 2 lived as husband and wife, and later the deceased went back to Bunyala, where he died.

14. Patrick Okwako Nadebu testified next. He too was from Munongo. He described the applicant as his nephew, being a son of his brother, Alfred Pamba Abala, and his wife Salome Khaoya. He said that the father of Alfred Pamba Abala was Abala Opiyo, and his mother Veronica Abala. He said that they came from the house of Nasonga, the mother of Abala Opiyo. He said that he knew the deceased. He came to inherit the home of Abala, after the former died. He could not tell the land registration details of the land on which the Abala home stood, but said that the home was still there. He said that he did not know the administrator, nor whether he was related to the deceased. He said that he never saw the wife nor the children of the deceased. He also stated that he was unaware whether anyone had been appointed administrator of the estate of the deceased. He said that when the deceased came to inherit Veronica Ambani he did not come with children.

15. The administrator followed. He came from Mafunda West Location, Bunyala. He said that he knew the deceased, who he described as a child of his cousin, Alfred Pamba Abala. He said that he shared a grandfather with the father of the applicant, given that their fathers shared a father. He said that he was a son of Emmanuel Mujibi Opio, who was a brother of Abala Opio. He stated that the deceased was not his biological father, and explained that he became his father because he died without a wife or child. He asserted that he was related to the applicant. He described Abala Opio as their father, and Veronica was his wife, and both lived on Bukhayo/Mundika/902 and 905, in Bukhayo, Mundika. He stated that no one lived on Bukhayo/Mundika/905, but explained that Abala and his wife utilized it. He described Abala Opio and the deceased as brothers, for they had the same father. He stated that the deceased did not inherit Veronica, after Abala died. He explained that the deceased used to live together with Abala and Veronica, at their home. He stated that Veronica had 2 children, Wanyama Abala and Alfred Pamba Abala, who lived in Munongo, occupying Bukhayo/Mundika/902 and 904, and who utilised Bukhayo/Mundika/905. He stated that when both Abala and Veronica died, they were buried on Bukhayo/Mundika/902, while the deceased was buried in Bunyala. He asserted that it was not those who occupy the land who inherit it. He said that he, and his side of the family, used to visit the land, but he never used it.

16. During re-examination, he explained that he and the applicant came from the same family, but from different houses. He said the side of his family belonged to the house of Namwemba Nanzala Opio, while the side of the applicant came from the house of Nasonga. He explained that he did not involve the applicant in the proceedings, as Bukhayo/Mundika/905 did not belong to his side of the family, and what the applicant was entitled to inherit was from the other house, which controlled Bukhayo/Mundika/902 and 904, that is to say the families of Alfred and Okova.

17. Peter Ouma followed. He was from Munongo. He described the deceased as an uncle in the family. He said that his father and the father of the deceased were brothers, being sons of Opio. He stated that Opio had 3 wives, who he named as Nasonga, Nafundi/Nagoma and Namwemba. He stated that he came from the house of Nagoma, while the administrator was in the house of Namwemba, and the applicant from the house of Nasonga. He said that he knew the applicant, as he was a son of Pamba, who was related to the deceased. He said that Opio was their father. He described Abala as the husband of Veronica, who had 2 sons, Wanyama and Pamba. He said that that family lived at Munongo, while the deceased lived at Bunyala. He explained that after the family shared their lands, he, the deceased, moved to Munongo. He said that he was at Munongo before the deceased died, and that he had his own boma, but no wife, so he lived alone. He said that he also had a boma at Bunyala, but he could not explain when he lived at Bunyala, and when he lived at Munongo. He said that he died at Bunyala, and was buried there.

18. Christopher Oduori Sicha was the next to take the witness stand. He was a retired Chief, for Bunyala. He said that he knew the deceased since 1980, and that he had never married, and had no child. He stated that he was his Chief, and that he issued a burial permit with respect to the disposal of his remains. He said that he knew the administrator, as he was the one who lived with the deceased, as his caregiver. During cross-examination, he stated that the deceased lived throughout in Bunyala. He said that in his letter he referred to Bukhayo/Mundika/905. He said that he knew the land, although he had never visited it, and he did not know who occupied it. He said that he did not know Veronica Ambani, although he knew the family of the deceased well.

19. At the end of the oral hearings, both sides filed written submissions, where they have extensively analysed the facts presented in evidence. The applicant has relied on the decision in In re Estate of Prisca Ong’ayo Nandi (Deceased) [2020] eKLR (Musyoka, J), while the administrator has relied on Albert Imbuga Kisigwa v Recho Kayai Isigwa [2016] eKLR (Mwita, J).

20. The dispute herein, as I understand it, is framed differently by both sides. According to the applicant, the 2 sides are not related by blood. The only connection between is through widow inheritance. The narrative is that the deceased herein was a resident of Bunyala, within Busia. He then moved to Bukhayo, where he cohabited with the grandmother of the applicant, on the property her late husband, and, at land adjudication, that land ended up registered in his name. When he died, his remains were buried at his native Bunyala. The story by the administrator is that the 2 sides are in fact related. They are all part of the larger Opio family, but belonging to different houses. The narrative is a little hazy at some points, for there are divergencies in the testimonies of the witnesses presented. What is clear, however, is that the deceased emerged from Bunyala, and found himself at Bukhayo. At Bukhayo, according to the administrator, he stayed together with the grandparents of the applicant, on their land and in their house, being Bukhayo/Mundika/902, and not Bukhayo/Mundika/905, but they used to utilise Bukhayo/Mundika/905, for no one lived there. The deceased never inherited Veronica. The other version, by the witness presented by the administrator, was that after the family shared their land, the deceased moved from Bunyala to Bukhayo, to his own land there, where he lived alone. He said that he had land both at Bunyala and Bukhayo. Curiously, the third witness presented by the administrator, who was their area Chief in Bunyala, said that the deceased lived his entire life in Bunyala.

21. It would be very hard to tell who was telling the true, given the divergencies, although the witnesses, presented by both sides, appeared to point to the argument by the administrator being more reliable and believable. Nevertheless, those family histories may not be of much assistance in determining the issue at hand. Succession is more about property, and less about families, for beneficiaries need not always be members of the family of the deceased, or his blood descendants. There has to be property for there to be succession, and succession would happen even where the deceased had no family. However, there would be no succession where the deceased had no property, even if he had a family. In succession, property comes first, and family second. It has to be established first whether there was property, before consideration is given to whether the deceased had a family, whose members would be entitled to succeed. The question, as to whether there was property, necessarily includes the question as to who the owner of the property, presented as belonging to the deceased, is, before consideration is given to who his survivors are or should be. Rushing to ascertain survivors, before addressing the property question, would be akin to putting the horse before the cart.

22. I raise this issue as I have discerned, from the material on record, that the dispute is not so much on who the survivors of the deceased herein are or should be, but rather whether the property in question forms part of his estate, although both sides have given primacy to the matter of the survivorship. The applicant claims that that piece of land was held by the deceased in trust for his side of the family, for it only got into his hands through widow inheritance. Therein is a suggestion that the land was ancestral, and a widow inheritor would not accede to ancestral proprietary rights by virtue only of inheriting the widow. The administrator argues that the land was registered in the name of the deceased as of right, and the succession proceedings were mounted on that basis. He appears to take the position, that the mere fact that his side had not been utilising the land, was of no moment, so long as registration was in the name of his kin.

23. So, the first issue to be disentangled should be that question of ownership. The land is in the name of the deceased. I expected the parties to lead evidence on how it came to be in the name of the deceased. That would have been the only way of establishing which side would be entitled to it. Of course, as the land is registered in favour of the deceased, who, from the emerging evidence, was nearer to the administrator than to the applicant, the onus was on the applicant, as the claimant, to establish that the deceased was a mere trustee of the land, in favour of his side of the family. Upon the adducing prima facie proof of that trusteeship, the burden would then have shifted to the administrator, to discount that alleged trusteeship, by counter evidence on the circumstances of the registration.

24. Ideally, therefore, both sides were obliged to adduce evidence on the circumstances of the registration. The burden was more so on the applicant, as he was the one seeking to defeat the title. He led no evidence on how that property ended up being registered in the name of the deceased. He only alleged the widow inheritance, he did not lead any evidence that would have demonstrated that the registration happened during that period of widow inheritance, and that the deceased was registered as such only on account of that. Documents from the adjudication process would have been of great help. He led no evidence on the legal incidences or consequences of a widow inheritance, particularly as to whether it amounted to a mere cohabitation, or it was more substantial, in terms of the widow inheritor stepping into the rights over the property of the late husband of the inherited widow. Widow inheritance is a concept in customary law, and it is trite that existence of a custom should be proved. It would only be upon such proof that a trust could be inferred. Upon prima facie proof of such a trust being adduced by the applicant, the burden would have shifted to the administrator, to adduce evidence to counter that. It was after evidence was adduced, on who was entitled to be the registered proprietor of the property, that the issue of the families would have arisen, for the purpose of ascertaining beneficiaries to that property in intestacy. The primary burden lay with the applicant, to demonstrate that the deceased was a mere trustee of that property for the benefit of his, the applicant’s, side of the family. That burden was not discharged.

25. In any case, that issue, as to whether the registration was in trust, revolves around title to or ownership of land. That is an issue that the High Court has no jurisdiction to determine. That jurisdiction was lost when the Constitution of Kenya, 2010, was promulgated, for Articles 162(2) and 165(5) took it away, and vested it in the courts envisaged therein. The role of a probate court is to distribute the property of a dead person. It is not to determine issues around ownership of such land. Where a dispute arises, over title or ownership of land that the probate court is being invited to distribute, jurisdiction, over that issue, is lost, and the parties ought to place the matter before the appropriate court, in appropriate proceedings. Rule 41(3) of the Probate and Administration Rules was designed for that purpose. If the applicant felt very strongly, that Bukhayo/Mundika/905 was property held in trust by the deceased, for his side of the family, he should have taken that matter to the proper court. It is not a succession issue, but a land issue. Revocation of grant would only arise, if it has to, after the appropriate court has resolved the issue in favour of the applicant. As it is, the circumstances favour the administrator, to the extent that he has demonstrated to be a closer relative of the deceased than the applicant.

26. As the applicant has not demonstrated that the property in question was held in trust, and that he would have been entitled to it, in priority to or equally with the administrator, there would have been no need for the administrator to have included him in the proceedings, or to have involved him, or to have notified him of the same.

27. I, therefore, find no merit, in the circumstances, in the application, dated 17th March 2023, and I hereby dismiss it. Each party should bear its own costs. I note that the estate has been transmitted. It would mean that there is nothing outstanding. This cause is, therefore, spent, and the file should be closed and moved to the archives. Should the applicant be aggrieved, by the orders made in this ruling, I grant to him leave of 30 days, to move the Court of Appeal, appropriately.

DELIVERED VIA EMAIL, DATED AND SIGNED IN CHAMBERS, AT BUSIA, THIS 15TH DAY OF OCTOBER 2024. W MUSYOKAJUDGEMr. Arthur Etyang, Court Assistant.AdvocatesMs. Nabulindo, instructed by DK Nabulindo & Company, Advocates for the applicant.Mr. Mogi, instructed by Manwari & Company, Advocates for the administrator.