[2023] KEHC 25032 (KLR)

In re Estate of Odonyo Maloba (Deceased) (Succession Cause 48 of 1999) [2023] KEHC 25032 (KLR) (10 November 2023) (Ruling)

Neutral citation: [2023] KEHC 25032 (KLR)

Republic of Kenya

In the High Court at Busia

Succession Cause 48 of 1999

WM Musyoka, J

November 10, 2023

IN THE MATTER OF THE ESTATE OF ODONYO MALOBA (DECEASED)

Ruling

1. The application for determination is dated 19th June 2023. It is brought at the instance of Juliana Maloba Makokha, Daniel Wanzala Juma, Wilfrida Makokha Taabu and Francis Kaunda Ongoro. I shall hereafter refer to them as the applicants. The prayers in the summons are poorly crafted, for some of them are mere statements, not prayers. The prayers are that the interested parties be “enjoined” to the proceedings, the grant ad litem made to John Wawire Obonyo in Busia CMC Ad Litem Cause No. E15 of 2022 be revoked, and that the interested parties be granted letters of administration in the estate of Elizabeth Atsieno Shiundu in the place of John Wabwire Odonyo. The statements, which do not amount to prayers, are that the grant ad litem made to John Nabwire Obonyo, in Busia Cause No. E15 of 2022, was obtained in collusion with Rispa Nabwire Juma, and was fraudulent; and the interested parties are purchasers for value of part of Bukhayo/Nasewa/52 from the administrator, Elizabeth Atsieno Shiundu, now deceased.

2. The application is brought against Risper Nabwire Juma and Elizabeth Athieno Shiundu. The grounds on the face of the application are that Risper Nabwire Juma is colluding with the limited administrator ad litem, to intermeddle in the estate of Elizabeth Atsieno Shiundu and the instant estate, both are defrauding the interested parties in the estate of Elizabeth Atsieno Shiundu, both are acquiring the estate of Elizabeth Atsieno Shiundu, John Wabwire Odonyo obtained the limited letters of administrator to fraudulently acquire the estate of Elizabeth Atsieno Shiundu, and that the interested parties have a legitimate claim to the portions that they had bought from the late Elizabeth Atsieno Shiundu.

3. The affidavit, in support, was sworn by Juliana Maloba Makokha, on 19th June 2023. She avers that they had bought, on diverse dates, parcels of land from the late Elizabeth Atsieno Shiundu, contained in her ½ share in Bukhayo/Nasewa/52. Upon her death, they obtained a letter from the local Chief, with a view to initiating succession proceedings in her estate. She stated that she had bought 2 acres from her, and that her interest, and that of Daniel Wanzala Juma, had been noted in the certificate of confirmation of grant, issued on 8th April 2006. She bought another piece in 2020, while Daniel Wanzala Juma also bought 2 more acres in 2018. Winfred Taabu bought ½ acre in 2019, while Francis Kanda Ongoro bought 2½ acres in 2005, 2010 and 2018. She prays that the objection, filed herein by Risper Wabwire Juma, be dismissed. She would like to have the grant implemented and the file closed.

4. She has attached several documents to her affidavit. These include the grant that was made in this estate on 4th October 2000, to Elizabeth Atieno Siundu. There is an order made on 26th May 2016, for removal of restrictions placed on Bukhayo/Nasewa/52, by Juliana Maloba and John Wabwire Odonyo, and an order directing the land registrar, Busia County, to implement the certificate of confirmation of grant made herein. There is a letter to the Deputy Registrar, dated 6th July 2021, from the Chief of Nasewa Location, to introduce the applicants to court, for the purpose of taking out letters of administration intestate with respect to the estate of Elizabeth Shiundu, who had died on 18th May 2021. Her certificate of death is attached, serial number 139716. There is also a copy of the certificate of confirmation of grant, dated 8th April 2006. There is a bundle of sale agreements. There are also rulings that were delivered on 8th April 2005, 26th May 2016 and 26th April 2018, a variety of affidavits, typed copies of proceedings and certificates of official searches.

5. Rispa Nabwire Juma, who is referred to as objector, in the application, has responded to the same, by an affidavit sworn on 6th June 2023. She avers that the applicants did not buy any land from the deceased herein, Odonyo Maloba, and, therefore, they are strangers to the estate. She further says that this court cannot revoke a grant issued in another cause.

6. I directed, on 12th July 2023, that the said application be canvassed by way of written submissions. Parties have placed their respective written submissions on record. I have read through them, and noted their respective arguments.

7. Let me start with revocation of the limited grant ad litem, issued out of Busia CMC Ad Litem Cause No. E15 of 2022. That grant was not made and issued in this cause, and it cannot possibly be revoked in this cause. A grant of representation can only be revoked within the cause in which it was made. The said limited grant was made and issued out of a cause at the magistrate’s court. The High Court has no jurisdiction to revoke a grant made by a magistrate. Magistrates now have jurisdiction to revoke grants made by them, and an issue relating to revocation of such a grant can only come to the High Court by way of appeal. A new Magistrate’s Court Act, No. 16 of 2015, came into force in 2016, and it extended the power to revoke grants to magistrates.

8. Related to that is the prayer that I should order substitution of John Wabwire Odonyo as administrator of the estate of Elizabeth Atsieno Shiundu with the applicants. I understand that John Wabwire Odonyo was the limited administrator appointed under Busia CMC Ad Litem Cause No. E15 of 2022. I reiterate what I have said in paragraph 7, hereabove, that I am not seized of Busia CMC Ad Litem Cause No. E15 of 2022, and I cannot make any orders here relating to what is pending in Busia CMC Ad Litem Cause No. E15 of 2022. The order, that I am being invited to make, with respect to that substitution, ought to be made in Busia CMC Ad Litem Cause No. E15 of 2022.

9. On the joinder of the applicants, to this cause, as interested parties, I note that the cause herein is to the estate of Odonyo Maloba, deceased. The applicants have no issue at all with the late Odonyo Maloba. They do not claim to have had bought anything from him, and do not claim that he was indebted to them in any way. Their claims are against Elizabeth Atsieno Shiundu, who was the administratrix of the estate herein. They claim that she sold land to them, not as administrator herein, but in her personal capacity, for she allegedly sold to them portions of the ½ share that she was entitled to from the estate, in the distribution approved by the court in 2005. As the applicants have no claim against the estate, there should be no basis for their joinder to the instant cause, as the same would serve no purpose. Their claim is against Elizabeth Atsieno Shiundu. She died. They should now pursue her estate, in separate proceedings, and not in this matter, which is not in respect of her estate.

10. I note that the deceased herein died in 1968. Representation to his estate was sought in 1998, and was granted on 4th October 2000. That grant of 4th October 2000 was confirmed on 8th April 2005, in a ruling delivered by Sergon, J. A certificate of confirmation of grant was duly issued, dated 8th April 2006. It granted ½ share of the estate to Elizabeth Atsieno Shiundu, out of which Juliana Maloba was to get something. The applicants thereafter entered into sale agreements with the said Elizabeth Atsieno Shiundu, to buy portions of her ½ share. From this material, it ought to be clear that the claim that the applicants have is against the estate of Elizabeth Atsieno Shiundu, and not the deceased herein, Odonyo Maloba.

11. There is absolutely no merit in the chamber summons, dated 19th June 2023, and I hereby dismiss the same.

DELIVERED, DATED AND SIGNED IN OPEN COURT AT BUSIA ON THIS 10TH DAY OF NOVEMBER 2023WM MUSYOKAJUDGEAdvocatesMr. Kasamani, instructed by Kasamani & Associates, Advocates for the applicants.Mr. Ouma, instructed by BM Ouma & Company, Advocates for the administrator.Mr. Wanyama, instructed by Wanyama & Company, Advocates for the objector.