[2023] KEHC 25188 (KLR)

In re Estate of of the Late Japheth Opolo Ayot alias Appolo Musa (Deceased) (Family Appeal 4 of 2022) [2023] KEHC 25188 (KLR) (9 November 2023) (Judgment)

Neutral citation: [2023] KEHC 25188 (KLR)

Republic of Kenya

In the High Court at Siaya

Family Appeal 4 of 2022

DO Ogembo, J

November 9, 2023

Between

Joshua Allan Opolo

1st Appellant

Joshua Allan Opolo ......................................1St Appellant Samuel Otieno Ayot

2nd Appellant

Joshua Allan Opolo ......................................1St Appellant Samuel Otieno Ayot

3rd Appellant

Joshua Allan Opolo ......................................1St Appellant Samuel Otieno Ayot

4th Appellant

Samuel Otieno Ayot

5th Appellant

and

Mary Nyagar

1st Respondent

Mary Omusi Nyagar

2nd Respondent

Mary Nyagar

3rd Respondent

Mary Nyagar

4th Respondent

Claris Nyagar

5th Respondent

Claris Nyagar

6th Respondent

Claris Nyagar

7th Respondent

Claris Amuom Opolo

8th Respondent

Judgment

1. The 2 appellants Joshua Allan Opolo and Samwel Otieno Ayot, being the Petitioners and administrators of the estate of the Late Japheth Opolo Ayot alias Appolo Musa (deceased), have appealed to this court against the Judgment of the Hon. J.P. Nandi, Principal Magistrate, Bondo issued on 31-5-2021 in Succession Cause No. 250 of 2020. The memorandum of Appeal dated 30-6-2021 and dated the same date has listed the following grounds of appeal: -1. That the learned trial magistrate erred in law and in fact by failing to find that Japheth Apollo Ayot (deceased) was also known as Appolo Musa despite the evidence on record.2. That the learned trial magistrate erred in law and in fact by failing to appreciate that the respondents failed to prove their objection on a balance of probability as required by the law.3. That the learned trial magistrate erred in law and in fact by failing to appreciate the evidence on record adduced by the appellants and the area chief.4. That the learned trial magistrate erred in law and in fact by making a finding that Musa Ayot Alago was also known as Apollo Musa.5. That the learned trial magistrate erred in law and in fact by failing to make a finding that land parcel No. East Asembo/Ramba 1370 belonged to Japheth Apollo Ayot who was also known as Appolo Musa.6. That the learned trial magistrate erred in law and in fact by making a finding which amounted to intermeddling with the estate of the deceased herein as against the provisions of Section 45 of the Law of Succession Act, thereby disinheriting the appellants.

2. The appellants have urged that this appeal be allowed and the ruling in Bondo Succession Cause No. 250/2020 be set aside in its entirety and the same be substituted with a ruling declaring that Japheth Apollo Ayot and Appolo Musa are one and the same person and that land parcel number East Asembo/Ramba/1370 belonged to Japheth Apollo Ayot also known as Appolo Musa and that the same be included as part of the estate and be administered according to the law.

3. The Respondents have opposed this appeal. The jurisdiction of this court over this matter as a first appeal is well settled. It is for the court to re-evaluate and analyse the evidence before the lower court and to come to its own conclusions (Okeno v R (1972) EA 32). It is therefore mandatory that this court relooks at the evidence tendered before the lower court and to make an independent determination on the same.

4. From the record of the proceedings Mary Nyagar Omusi was PW1. Her evidence was that Petitioners are sons of her brother-inlaw. That Musa Alago had 3 sons who were buried on the same land and had given each son his portion. That Petitioners want the land to be given to them alone. That each of them is cultivating their respective shares of the said land and that Petitioners have encroached onto her parcel and also that of Claris Nyagar. That 2nd Petitioner threatens them with eviction. She has stayed on the land since 1955, when she got married. She confirmed that Apolo Musa is her father inlaw, while Japheth Apolo Ayot is her brother inlaw. That 2nd Petitioner has invaded her land and erected a house thereon. In her evidence Japheth Apollo Ayot and Apollo Musa are 2 different people.

5. This witness was cross examined. She answered that each son was given his portion and that her husband was burred on the land she stays on. Further that parcel 1370 has not been sub-divided. Her father inlaw Musa Ayot Alago distributed to all his sons. She had no explanation on why the Chief did not include her name in his letter.

6. Claris Nyagar was PW2. She is the 2nd Objector. Her evidence was that the suit land belongs to her father in law and each son was given part of parcel 1370. She has stayed in the suit land since 1964. That they all stay on the same parcel of land No. 1370. In her evidence Musa Ayot Alago Apollo is the same person as Apollo Musa and that Apollo Ayot was not using the name Musa.

7. Answering to the 2nd Petitioners, the witnesses went on that in the meeting at the Office of the Chief, the Chief advised that they distribute the land peacefully, but that 2nd Petitioner secretly took the letter from the Chief. That apart from 1370, 2nd Petitioner has another parcel. Finally, that her husband and children are all buried in parcel 1370.

8. The 3rd witness (PW3) was Elijah Anyango Akumu, 81 years. His testimony was the 2 objectors are his sisters in law. That the late Musa Ayot Alago had 3 sons, Stephen Alago Ayot, Japheth Apollo Ayot and Jackson Nyagar. He denied knowing any other name of Japheth nor who Apollo Musa is. That the 3 sons should get a share of the suit land. That Musa Ayot was the owner of the land and he gave each son a portion of the land and share each was buried.

9. And PW4 Andrew Ochieng Alago, son of Stephen Alago and a grandson of Musa Ayot, recalled that his father, mother and brother are buried in the same land. That his brother, the petitioner told him not to build on the land due to a dispute. He also confirmed that his grandfather gave each of his son a portion and the dispute started after the death of their fathers. He summed up that the Petitioners are wasting the land, away from their portions.

10. On being cross examined, he went on that the Petitioners left them out during succession and that he claims a share in 1370.

11. Joshua Allan Opolo was DW1. His evidence was that the objectors are his mothers. That the land in dispute belongs to Japheth Apolo Ayot alias Apolo Musa and this is in search records. That they had legal documents supporting their claim over the disputed land while objectors had none. That the objectors have their own lands and are not entitled to the suit land. Futher that while their mothers could get a share, their added brother is not supposed to get land from the disputed parcel.

12. Samwel Otieno Ayot (2nd Petitioner) was DW2. His evidence was that Musa gave each of his sons land and that is why objectors were excluded from the succession, he denied that the Objectors are beneficiaries of his late father’s estate. She also denied that 1st Objector is wife of Japheth. He stays on the suit land because he obtained ad litem, while answering to 2nd Objector, he stated that he left the parcel of land of his father and build on the suit land after he did a search and found the land belongs to his father.

13. And DW3 Isaac Nyaoko Okidi testified that the late Musa Ayot had 3 sons Alago Apollo Musa and Nyagar Musa. That Musa Ayot had a home in parcel No. 1370. That DW2 had a search showing the land was in the name of Apollo Musa, son of Musa Alago Ayot. And that is when the Chief gave instructions to Joshua and Samwel to commence succession. That the Objectors and 2nd Petitioner stay in parcel No. 1370 while Joshua has no house on this land. To him, the objectors should not be given a share of this land.

14. This appeal was canvassed by way of written submissions. It was submitted by the appellants that their late grandfather Musa Ayot Alago bequeathed each child his land parcel with the Respondents getting Siaya Memba/578 and Siaya Memba/74. That East Asembo/Ramba/1370 was not owned by Musa Ayot Alago who had already transferred same to Japheth Opollo Ayot alias Apollo Musa. It was summed up that since the succession is on estate of Japheth Opolo Ayot Alias Apollo Musa, the appellants be allowed to continue.

15. The Respondents have on the other hand submitted that they seek to have the grant issued to the appellants revoked. That both are daughters in law of Apolo Musa, the registered owner of parcel number Asembo/Ramba 1370. That Stephen Alago Ayot, Japheth Opolo Ayot and Jackson Nyagar Ayot are deceased. That the mode of distribution is not in the interest of all beneficiaries and that the estate of the deceased be distributed amongst all the beneficiaries as per the wishes of the said deceased prior to his death.

16. I have considered the evidence of the parties as tendered before the trial court, the judgment of the trial court and also the submissions filed by the parties in this appeal. This cause relates to land parcel number Asembo/Ramba/1370. The evidence on record reveals a number of important facts regarding this estate. That the land parcel belonged to Apolo Musa (deceased) that the 2 Respondents (Objectors) are daughters in law of Apolo Musa. That Apolo Musa had 3 sons, Stephens Alago Ayott, Japheth Opollo Ayot and Jackson Nyagar Ayot who are all deceased. That the first son, Stephen Alago Ayot is survived by Andrew Ochieng Alago and Mary Ayot. The second son Japheth Opollo Ayot is survived by Joshua Alan Opollo and Samwel Ayot who are the appellants herein. And lastly, that the third son Jackson Nyagar Ayot is survived by Mary Nyagar and Cariss Nyagar the Respondents.

17. The Appellants evidence is that the deceased provided for all his sons and that their claim to exclusive rights over parcel number Asembo/Ramba/1370 is on the basis of the search they did which showed that the land belonged to their late father Japheth Opolo Ayot alias Apollo Musa. That this sucession cause is of the state of their father Japheth Opolo Ayot and the Obector/Respondents have no share on the same. The Respondents and their witnesses deny that Japheth Opolo Ayot was also known as Apollo Musa.

18. There is no doubt that the 2 Respondents stay on the disputed land. Their father in law and their husband were buried in the land. For the 1st respondent she has stayed on the land from 1955 when she got married in the home. And for 2nd Respondent, it is from date of her marriage in the 1960s. The 1st appellant stays on his own land away from parcel number 1370. The 2nd appellant has another land away from parcel number 1370 and has chosen to also construct in parcel number 1370.

19. The pictures that comes out of all this is that the 2nd appellant while already having his owned parcel, also claims plot number 1370. The question is therefore why of all the beneficiaries of his grandfather Apollo Musa (deceased), he is the only one to have 2 different parcels. And if the land indeed belonged to his late father Japheth Opollo Ayot, why then did his father not bequeath this land in his lifetime to the appellants who were his only sons? Their father must have known that the respondents had an interest on the land. After all, their homes are on the land.

20. The claim of the appellants is based on a search. The Appellants have not explained in any way how this search came to be whereas it is on record that the estate of their grandfather on which the objector/respondents homes are has never been subdivided. Otherwise the appellants also did not exhibit any document of title to the parcel of land in the name of their father. There is even the dispute as to whether their father Japheth Opolo Ayot was also known as Appolo Musa. The letter of the Assistant Chief fated 30-1-2021 also clearly shows the 2 Respondents as beneficiaries of the deceased Musa Ayot Alago.

21. It is for the above reasons that I am convinced that the 2 Respondents Mary Nyagar and Cariss Nyagar (the objectors) are beneficiaries in East Asembo/Ramba/1370 and that the letters of administration that the 2 appellants herein Joshua Allan Opolo and Samwel Otieno Ayot obtained in respect of this estate i.e. Bondo Succession Cause No. 250 of 2020 was obtained irregularly and by material of non-disclosure.

22. That the appellants failed to disclose that the Respondents are beneficiaries of the said estate, particularly, parcel number East Asembo/Ramba/1370. And on this 2 arrive the same finding as that of the Hon. Principal Magistrate in the succession cause before the court below.

23. Pursuant to Section 76 of the law of Succession Act, Cap 160, I accordingly find that the grant of letters of administration issued to the 2 Respondents (administrators) in Bondo Succession Cause No. 250 of 2020, and to the exclusion of the 2 Respondents (objectors), who are rightful beneficiaries, was obtained through concealment of material facts. The same is accordingly annulled and revoked I award cost of this application to the Respondents.

24. It is so ordered.

DATED, SIGNED AND DELIVERED AT SIAYA THIS 9TH DAY OF NOVEMBER, 2023. D.O. OGEMBOJUDGENOVEMBER 9, 2023Court:JUDGMENT READ OUT IN OPEN COURT IN THE PRESENCE OF BOTH 1ST AND 2ND APPELLANTS AND 1ST AND 2ND RESPONDENTS.D.O. OGEMBOJUDGENOVEMBER 9, 2023