[2024] KEHC 3829 (KLR)
The court found that there was conflicting information regarding the existence and status of the deceased's daughters and their issue. While affidavits were filed by both sides, the court noted that not all necessary disclosures had been made, particularly regarding whether the two other deceased daughters (Magret...
Source-derived case information.
- Citation
- [2024] KEHC 3829 (KLR)
- Parties
- Applicant: Augustine Wesonga Odhiambo; Respondent: Silvester Omondi Asimo; Respondent: Patrick Odhiambo Onyango
- Court
- High Court
- Court Station
- High Court at Busia
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 88 of 2015
- Procedural Posture
- Succession Cause / Interlocutory Ruling on Compliance With Disclosure Orders Prior to Confirmation of Grant
- Outcome
- Further affidavits required before confirmation of grant can be determined.
- Judges
- WM Musyoka
- Legal Topics
- Succession, Confirmation of Grant, Beneficiary Identification, Disclosure of Survivors
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Augustine Wesonga Odhiambo
Applicant
Silvester Omondi Asimo
Respondent
Patrick Odhiambo Onyango
Respondent
Procedural Posture
Succession Cause / Interlocutory Ruling on Compliance With Disclosure Orders Prior to Confirmation of Grant
Legal Issues
- 1 Whether the administrators have fully disclosed all beneficiaries of the deceased, including daughters and issue of deceased daughters, as required by law.
- 2 Whether the affidavits filed sufficiently address the court's prior directions on disclosure of survivors and consents for surrender of shares.
Ratio Decidendi
The court found that there was conflicting information regarding the existence and status of the deceased's daughters and their issue. While affidavits were filed by both sides, the court noted that not all necessary disclosures had been made, particularly regarding whether the two other deceased daughters (Magret Olaka Ongoma and Kelesenthia Awino) had surviving issue, and whether Rose Odinga had other children besides Obiero Alek. The court held that it could not proceed to determine the confirmation of grant until full disclosure was made and consents obtained from all entitled beneficiaries or their issue. The administrators were therefore directed to file further affidavits within 30...
Court Disposition
Further affidavits required before confirmation of grant can be determined.
Orders
- Administrators to file further affidavits within 30 days addressing whether the two deceased daughters had surviving issue and whether Rose Odinga had other children, and to file consents as appropriate.
- Matter to be mentioned on a date to be allocated at delivery of the ruling.
Full Case Text
Judgment text and source record
15 paragraphs
In re Estate of Odhiambo Amuga Olaka (Deceased) (Succession Cause 88 of 2015) [2024] KEHC 3829 (KLR) (19 April 2024) (Ruling)
Neutral citation: [2024] KEHC 3829 (KLR)
Republic of Kenya
In the High Court at Busia
Succession Cause 88 of 2015
WM Musyoka, J
April 19, 2024
IN THE MATTER OF THE ESTATE OF ODHIAMBO AMUGA OLAKA (DECEASED)
Ruling
1. I delivered a ruling herein, on 2 summonses for confirmation of grant, dated 9th November 2022 and 6th December 2022. I did not determine the said summonses, for I postponed them, to allow the administrators time to comply with Articles 2(4) and 37 of the Constitution, by disclosing whether or not the deceased was survived by daughters. Both sides have complied, by filing affidavits.
2. The first in time was filed by Silvester Omondi Asimo, a grandson of the deceased. He swore his affidavit on 11th December 2023. He disclosed that his grandfather, the deceased herein, had only sons, and no daughters. He has named the 3 sons, 2 who have passed on, and the 1 surviving, who is his co-administrator. He has also disclosed the children of the 2 dead sons of the deceased, which includes his own father, Philip Asimo Odhiambo.
3. Augustine Wesonga Odhiambo, a son of the deceased, filed his affidavit next, sworn on 28th February 2024. He discloses that the deceased had 4 daughters, who he has named in the affidavit. 3 are dead, but 1 is alive. The 1 alive, Getruda Aor Obandha, has sworn an affidavit, where she identifies herself as a daughter of the deceased, and says that her 3 sisters were dead. By her affidavit, she surrenders her share to her surviving brother, Augustine Wesonga Odhiambo. There is an affidavit by Obiero Alek, a child of one of the dead daughters of the deceased, named as Rose Odinga. He avers that he surrenders his late mother’s share to his surviving uncle, Augustine Wesonga Odhiambo.
4. There was no disclosure whether the other 2 dead daughters of the deceased had been survived by issue. I am talking of the late Magret Olaka Ongoma and the late Kelesenthia Awino. If they had offspring, then such offspring would be entitled, and I should not proceed to determine the matter without their input. If the 2 left behind no immediate survivors, then that fact ought to be disclosed. It should also be disclosed whether Rose Odinga had other children, apart from Obiero Alek, and if she did, then the consents of those other children, on whether they support surrender of their mother’s share, should be filed.
5. Consequently, I give the administrators 30 days to file further affidavits, to address the issues, that I have raised in paragraph 4 hereabove. The matter shall be mentioned on a date that I shall allocate at the delivery of this ruling.
DATED, SIGNED AND DELIVERED IN OPEN COURT AT BUSIA THIS 19TH DAY OF APRIL 2024WM MUSYOKAJUDGEMr. Arthur Etyang, Court AssistantAdvocatesMr. Jumba, instructed by Balongo & Associates, Advocates for Augustine Wesonga OdhiamboMr. Ashioya, instructed by Ashioya & Company, Advocates for Silvester Omondi Asimo and Patrick Odhiambo Onyango