[2022] KEHC 11434 (KLR)

In re Estate of Okeya Omunyin Ebaale (Deceased) (Succession Cause 236 of 2008) [2022] KEHC 11434 (KLR) (6 July 2022) (Ruling)

Neutral citation: [2022] KEHC 11434 (KLR)

Republic of Kenya

In the High Court at Busia

Succession Cause 236 of 2008

JR Karanja, J

July 6, 2022

IN THE MATTER OF THE ESTATE OF OKEYA OMUNYIN EBAALE – DECEASED

Between

Simon Emongor Enagai

Petitioner

and

Ludovico Omunyin Okeya

1st Respondent

Pau Okeya

2nd Respondent

Daniel Odeke Ojilo

3rd Respondent

and

Bonface Ojuma Epuret

Interested Party

Charles Orupi

Interested Party

Ruling

1. A cursory perusal of the court record reveals the following facts to wit that the late Okeya Omunyin Ebaale passed away on April 26, 1996 at the age of seventy two (72) years and was survived by Simon Emongor Emongor Enagai, Ludovico Omunyin Okeya, Paul Okeya, Sabencia Asukuku Omuse, Jacenta Mwaka Omuse, Etyang Singa and Charles Orupi Singa as indicated in the Chief’s letter dated 13the October, 2008. The deceased was at the time of his demise the registered proprietor of the sole estate property described as land parcel No South Teso/Amukura/1076. On October 21, 2008, Simon Emongor Enagai (petitioner) applied for grant of letters of administration intestate respecting the estate of the deceased and on the October 5, 2009 the grant was issued to him and was confirmed belatedly on May 16, 2011. The necessary certificate of confirmation of grant was issued with the estate property being shared amongst the specified beneficiaries.

2. Seemingly, the distribution of the estate was complete and spent. However four (4) of five (5) years after the confirmation of the grant and distribution of the estate, a summons for revocation of the grant dated October 6, 2015 was filed by seven (7) people described as the objectors. They included Daniel Odeke Ojilo, Kevin Asale, Patrack Osala Ojakepel, Jimmy Odeke, Francis Ekapolok, Francis Odeke and Hellena Odeke. They alleged that the grant was fraudently obtained as they were excluded as beneficiaries having purchased apart of the share property from the petitioner/administrator of the estare.Another application for revocation of grant was made on December 7, 2015 by one of the beneficiaries, Ludovico Omunyin Okeya. This latest application was allowed by the court on January 19, 2016 meaning that the original grant dated October 5, 2009 and the accruing certificate of confirmation of grant dated May 16, 2011 all made in favour of the petitioner Simon Emongor Enaga or Enagai were revoked thereby implying that the estate property reverted back to the deceased as the registered proprietor.

3. However, vide a notice of motion dated April 30, 2018, and filed herein on May 8, 2018, the petitioner Simon Emongor Enagai applied for a review of the court order made on January 19, 2016, revoking the grant together with the accompanying certificate of confirmation of grant.Another application dated May 15, 2019, for restraining orders in respect of parts of the estate property was filed by the petitioner, first interested party Boniface Ojuma Epuret and second interested party Charles Orupi all described as the first, second and third applicants respectively. The application was against Ludovico Omunyin Ekeya, Paul Okeya and Daniel Odeke Opilo, described as the first, second and third respondents respectively. A notice of preliminary objection dated October 18, 2019 respecting that application and the application dated April 30, 2018 was filed on October 22, 2019 by the respondents. Both applications dated April 30, 2018 and May 15, 2019 came up for directions in court on June 8, 2021 after a long delay mostly attributed to the Covid-19 pandemic in the year 2020.

4. It is instructive to note that the notice of preliminary objection to both applications was re-filed on January 14, 2022, but was struck out and discussed by the court on March 8, 2022 for being misconceived and an abuse of the process of the court.So, on the June 8, 2021, the application dated May 15, 2011 was withdrawn by the applications through their Advocate, Mr Okeyo. The application dated April 30, 2018 was left pending and parties directed to engage on the matter which was then stood over to the September 22, 2021 on which date the petitioner indicated that they were exploring possibility of a settlement. A further mention date was therefore slated for October 19, 2021 but the parties did not appear. It is however noted that an application dated October 6, 2021 was filed on October 18, 2021 seeking confirmation of the grant issued on October 5, 2009 to the petitioner, Simon Emongor Engai.

5. The court fixed the application for hearing on November 18, 2021 when the parties did not appear thereby prompting an adjournment to the January 20, 2022 but which date was on December 16, 2021 rescheduled to March 8, 2022 when the parties appeared and given the May 4, 2022 as the first date for hearing of the application for confirmation in order to allow filing of affidavit of protest by any party disagreeing with the application and the proposed mode of distribution.On April 19, 2022 an affidavit of protest was filed by one of the beneficiaries, Paul Okeya.As directed by the court, the protest was heard by way of affidavit of evidence and written submissions which were filed by the protestor on the June 15, 2022 and by the petitioner through Okeyo Ochiel & Co Advocates.This ruling is in respect of the protest and by extension the application for confirmation of grant dated October 6, 2021.

6. Having examined and re-visited the steps taken by the parties in this matter from its inception on the December 2, 2008 to date, this court notes with sympathy that the application for confirmation of grant and the protest thereto are premature and unreliable in as much as they relate to the grant issued to the petitioner on October 5, 2009 and confirmed on May 16, 2011 as both the Grand and the accruing certificate of confirmation of grant were revoked by an order of the court on January 19, 2016, which order remains valid to date given that none of the parties appealed against it.An attempt was made by the petitioner via his application dated April 30, 2018 to have the order reviewed and set aside but the application remained dormant for a long period of time until the June 8, 2021 when the court drew the alteration of the parties to its existence and directed the parties to ponder afresh on the matter. On the September 21, 2021, the petitioner informed the court that the parties were exploring a possibility of settlement. Later, the petitioner filed the application dated October 6, 2021 for confirmation of grant thereby implying that the parties have agreed on the mode of distribution of the estate. This action rendered the application dated April 30, 2019 as having been overlooked the events.

7. It was expected and required that in view of the revocation of the original grant the parties would agree on the issuance of a fresh grant to specified administrator or administrators and thereafter seek confirmation of the fresh grant. This was not done. Aggrieved, the petitioner and indeed all the parties sought a confirmation of the original grant which was effectively revoked by the court. The objective of that revocation was to revert the estate property back to the name of deceased and to leave the estate unadministered. Any action that was undertaken on the basis of the revoked grant and the accompanying certificate of confirmation of grant became “void ab-initio” with any person claiming an interest in the estate as a purchaser being at liberty to file a civil suit for damages against the vendor or the estate of the deceased.

8. In sum, both the protest dated April 19, 2022 and the application for confirmation of grant dated October 6, 2021 are hereby dismissed with each party bearing their own costs.The parties are directed to agree on the issuance of a fresh grant of letters of administration to one or two or three or even four of the proper and rightful beneficiaries after which they may agree on distribution and take out necessary summons for confirmation of grant. In any event, not later than six (6) months from the date hereof. The matter shall be given a mention date on its status and/or further orders.Ordered accordingly.

J.R. KARANJAHJ U D G E[DELIVERED AND SIGNED THIS 6TH DAY OF JULY, 2022]