[2020] KEHC 1142 (KLR)
The court found that the applicant's late father, Africanus Omanyala Muka, had participated in the process of distribution and confirmation of the grant and did not raise any objection during his lifetime. The deceased died intestate, and there was no credible evidence to support the claim that his wishes regarding...
Source-derived case information.
- Citation
- [2020] KEHC 1142 (KLR)
- Parties
- Respondent: Simon Ogulubera Imuka; Applicant: Philip Omuse Omanyala
- Court
- High Court
- Court Station
- High Court at Busia
- Jurisdiction
- Kenya
- Case Number
- Probate & Administration 212 of 2010
- Procedural Posture
- Probate and Administration / Ruling on Summons for Revocation/rectification of Grant
- Outcome
- Application for revocation or rectification dismissed; substitution of applicant for deceased father allowed.
- Judges
- KW Kiarie
- Legal Topics
- Succession, Grant Revocation, Letters of Administration, Estate Distribution
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Simon Ogulubera Imuka
Respondent
Philip Omuse Omanyala
Applicant
Procedural Posture
Probate and Administration / Ruling on Summons for Revocation/rectification of Grant
Legal Issues
- 1 Whether the grant of letters of administration should be revoked or rectified to reflect the alleged wishes of the deceased regarding land distribution.
- 2 Whether the applicant should be substituted for his deceased father as a beneficiary.
- 3 Whether there was concealment of material facts or fraud in the confirmation of the grant.
Ratio Decidendi
The court found that the applicant's late father, Africanus Omanyala Muka, had participated in the process of distribution and confirmation of the grant and did not raise any objection during his lifetime. The deceased died intestate, and there was no credible evidence to support the claim that his wishes regarding land distribution were ignored. The surveyor's report annexed by the applicant was deemed to have no probative value as there was no application for a survey. The court concluded that the application for revocation or rectification was an afterthought and lacked merit. However, the court allowed the substitution of the applicant for his deceased father as a beneficiary, but...
Court Disposition
Application for revocation or rectification dismissed; substitution of applicant for deceased father allowed.
Orders
- The applicant, Philip Omuse Omanyala, is substituted for his deceased father, Africanus Omanyala Muka, as beneficiary.
- The application for revocation or rectification of the grant is dismissed.
Full Case Text
Judgment text and source record
33 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT BUSIA
PROBATE & ADMINSTRATION NO. 212 OF 2010
IN THE MATTER OF THE ESTATE OF:
MUKA ADUNGO...........................................................................................................DECEASED
BETWEEN
SIMON OGULUBERA IMUKA.................................................PETITIONER/ RESPONDENT
AND
PHILIP OMUSE OMANYALA..........................................................OBJECTOR/APPLICANT
RULING
1. Philip Omuse Omanyala, the applicant herein moved the court by way of amended summons for revocation and/or rectification/review of grant dated 31st October 2017 under sections 47, 74 &76 of the Law of Succession Act and Rules 43, 44 & 73 of Probate and Administration Rules. He is seeking the following orders:
a) That the grant of probate (letters of administration) issued herein on 16th November 2011 and all consequential orders obtained pursuant thereto be revoked or annulled in terms of the distribution acreage of the parcel of land NO. SOUTH TESO/CHAKOL/40.
b) That the applicant be given leave to substitute his late father and beneficiary Africanus Omanyala Muka (deceased) as his only son for purposes of this application rectification and re-distribution.
c) That he is the only son of the second beneficiary Africanus Omanyala Muka who is now deceased and is desirous to replace the said deceased.
d) That the grant of letters of administration issued to Sion Ogulubela Muka be rectified and/or reviewed in its confirmation to reflect the deceased Muka Adugo’s wishes and the true position on the ground.
2. The application is premised on the following grounds:
a) That the matter is utmost urgency as the petitioner has obtained letters of administration and certificate of confirmation which has errors since the acreage on the ground is more and the petitioner did not involve the surveyor to get the actual measurements.
b) That the petitioner concealed material facts to the effect that prior to his demise, the deceased had sub-divided his land between the petitioner and the applicant’s late father and plated a boundary which exists to date.
c) That the confirmation does not reflect the deceased’s wishes and the true position on the ground as the deceased allocated the applicant’s father 2. 0 Ha and the petitioner 0. 6Ha and which position exists to date and has been respected today by the deceased’s two sons.
d) That the petitioner capitalized on the applicant’s father’s illiteracy, ignorance and sickness to secretly drag him to court to fraudulently secure confirmation of grant.
e) That there is an error apparent on the face of the record as if the confirmation of grant is executed.
3. There was no objection for the applicant to be substituted for his deceased father but the other aspects of the application were opposed on the following grounds:
a) That there is no apparent error on the face of the record.
b) The purported wishes of the deceased is not supported by any evidence.
4. The application that the objector/applicant be substituted for his deceased father is allowed.
5. Africanus Omanyala Muka, the deceased father of the applicant herein, participated in the process of distribution and confirmation of the grant. During his lifetime and during the pendency of this succession cause, he did not at any time raise any objection in the mode of distribution of the estate.
6. Muka Adungo, the deceased in respect of this succession cause died on 24th August 1993. He died intestate. The applicant cannot therefore purport to claim that his wishes on distribution were ignored. In any case, his father, Africanus Omanyala Muka, was better placed to know of the wishes but he never brought this issue up. It is therefore clearly an afterthought.
7. The applicant has annexed a copy of a surveyor’s report to his application. There was no application for the land to be surveyed. The document is mischievous and has no probative value.
8. The application for revocation or rectification is therefore dismissed. The distribution of the estate will be carried as indicated in the certificate of confirmation except for the substitution of Africanus Omanyala Muka with the applicant who must hold it for the estate of his deceased father, Africanus Omanyala Muka. Costs be in the cause.
DELIVERED and SIGNED at BUSIA this 6th day of October, 2020
KIARIE WAWERU KIARIE
JUDGE