[2023] KEHC 25031 (KLR)

In re Estate of Otengo Wadenya (Deceased) (Succession Cause 161 of 2004) [2023] KEHC 25031 (KLR) (10 November 2023) (Ruling)

Neutral citation: [2023] KEHC 25031 (KLR)

Republic of Kenya

In the High Court at Busia

Succession Cause 161 of 2004

WM Musyoka, J

November 10, 2023

IN THE MATTER OF THE ESTATE OF OTENGO WADENYA (DECEASED)

Ruling

1. The deceased herein died on 29th August 1997. There is a letter from the Chief of Bumala “A” Sub-Location, dated 23rd December 2004, which indicates that the deceased was a polygamist, who had married 2 wives, namely Willy Aoko Otengo and Lucia Atieno Opio, who had 2 sons, James Otieno Otengo and Sospeter Onyango Otengo. The other survivors are stated to be his mother, Anjelina Nyangweso Wadenya, and his brother Juma Wadenya Ajuang. He was said to have died possessed of Marachi/Bumala/1002. The survivors are said to have sold 1. 3 hectares of Marachi/Bumala/1002 to Francis Lukio Mulamba, Nicholas Dondi and Emily Norah Kwena, leaving the estate with 5. 76 hectares.

2. Representation to the intestate estate was sought by Lucia Athieno Opio and Juma Wadenya Ajwang, in their purported capacities as widow and son of the deceased, through a petition filed herein, on 23rd December 2004. They listed themselves, and Richard Ouma Otengo, James Otieno Otengo, Sospeter Onyango Otengo and Anjelina Nyangweso Wadenya, as the sole survivors of the deceased, and Marachi/Bumala/1002 as the asset that the deceased died possessed of. They also listed Francis Lukio Mulamba, Nicholas Dondi and Emily Norah Kwena as liabilities. Letters of administration intestate were made to them on 4th May 2005, and a grant was duly issued, bearing an even date. I shall refer to them as the administrators. The grant was confirmed on 30th October 2006, on an application dated 22nd June 2006. The estate was devolved, unevenly, between Lucia Athieno Opio, Sospeter Onyango Otengo, Juma Wadenya Ajwanga, James Otieno Otengo, Anjelina Nyangweso Wadenya, Richard Ouma Otengo, Emilly Norah Kwena, Nicholas Dindi and Francis L. Mulamba. A certificate of confirmation of grant was duly issued, dated 30th October 2006.

3. A summons, dated 31st October 2019, brought at the instance of David Ouma Otengo and Samson Oduor Otengo, on 15th November 2019. I shall refer to them as the applicants. They sought joinder to the succession cause; injunctive reliefs, with respect to Marachi/Bumala/2139-2145, said to have been sub-divisions from Marachi/Bumala/1002; and orders directed at the land registrar, to register a restriction against the title in Marachi/Bumala/2139-2145. The applicants averred to be sons of the deceased, who were not given any share in the estate of their late father, and that they had equal priority to administration of the estate. The affidavit in support is sworn by David Ouma Otengo. He explains that the deceased had the 2 wives listed in the Assistant Chief’s letter, but that Willy Aoko Otengo had died. He further explains that the surviving widow, who was the 2nd wife, Lucia Atheino Opio, had only 1 son, Sospeter Onyango, while the 1st wife, the late Willy Aoko Otengo, had 3 sons, James Otieno Otengo, David Ouma Otengo and Samson Oduor Otengo. He avers that when succession was sought, he and Samson Oduor Otengo were omitted from the process. He says that they were unaware of the process, until they established that the land had been sold, and that some of the persons who benefitted from the distribution were not even children or survivors of the deceased. He states that they were left out because they were young, and living in Nakuru with an aunt. He submits that there was concealment of matter from the court. He states that the estate ought to be distributed according to the wives, and not as done following the proposals of the administrators. He has attached a permit for burial, dated 6th September 2002, showing that the late Willy Aoko Otieno died on 5th September 2002.

4. That application was amended on 19th June 2023, to convert it to a summons for revocation of grant. The affidavit in support was sworn by David Ouma Otengo, on 19th June 2023. He states that he thought that Juma Wandenya Ajwanga was holding land in trust for him and Samson Oduor Otengo, but he had refused to give them their share of their father’s land. They would want the land re-distributed. He has attached a letter, dated 6th October 2021, from the Chief of Bumala “A” Location, which confirms that David Ouma Oteng’o and Samson Oduor Oteng’o were sons of the deceased, and that they had not been included in the distribution of the estate of their late father, the deceased herein. There is also a letter, in similar terms, from the Assistant Chief of Bumala “A” Sub-Location, dated 1st February 2021. A green card for Marachi/Bumala/1002 shows that the same was registered in the name of the deceased in 1984, was transferred to the names of the administrators in 2005, and was sub-divided and distributed, in 2006, as per the certificate of confirmation of grant dated 30th October 2006.

5. The reply to the application was by Joseph Enaki Okello, the administrator of the estate of Juma Wadenya Ajwanga. It takes the form of an affidavit, sworn on 22nd June 2023. He avers that his late father, Juma Wadenya Ajwanga, held the land devolved to him at confirmation, in trust for the applicants, the children of the late Willy Aoko Otengo. He states that it had been agreed that since the children of the said widow were minors at the time succession was initiated, their interests could be taken care of by the late Willy Aoko Otengo. He says that by the time his father died in 2017, he saw strangers occupying the land saying that they had bought it. He states that the land of the deceased herein ought to be subdivided into 2, according to his 2 houses/wives. He avers that the grant ought to be revoked, for the sake of justice, to facilitate re-distribution. He states that his own father had his own land, and he, the late Juma Wadenya Ajwanga, had no interest in inheriting his late brother’s land.

6. The matter was disposed of by viva voce evidence. David Ouma Otengo testified, and so did Joseph Enaki Okello. He stated that the 2 administrators were his stepmother and uncle, respectively, and that both had died. He stated that he and his applicant were minors when succession was done, and were living with a maternal aunt, as their mother had since died. He complained that the 2 of them were not allocated anything as children of the deceased. Joseph Enaki Okello, on his part, stated that he stood by the contents of his replying affidavit.

7. At the end of the oral hearing, the applicants, through their Advocate, filed written submissions, which highlighted the provisions in sections 76, 79 and 82 of the Law of Succession Act, Cap 160, Laws of Kenya, and rule 7(1) of the Probate and Administration Rules, and the decisions in In re Estate of Prisca Ong’ayo Nande (Deceased)[2020] eKLR (Musyoka, J) and In re Estate of Jamin Inyanda Kandambi (Deceased) [2021] eKLR (Musyoka, J).

8. This is a fairly straightforward matter. The administrators, whose grant is sought to be revoked, are dead. That then means that their grant became useless and inoperative on account of their deaths. Secondly, the administrator of the estate of 1 of those dead administrators has filed an affidavit indicating that the said estate does not oppose the application. He concedes that his late father was supposed to hold the share due to the applicants in trust, and agrees that something went wrong with the way the estate was distributed.

9. It is not contested that the applicants were sons of the deceased, and that they were not included in the schedule of the children of the deceased, that was filed in court when representation was sought. They should have been disclosed in the petition for representation, by dint of section 51(2)(g) of the Law of Succession Act and Rule 7(1)(e)(i) of the Probate and Administration Rules. The provisions are in mandatory terms. Section 51(2)(g) says“an application shall include information as to – in cases of total or partial intestacy, the names and addresses of all surviving spouses, children ... of the deceased ... ”;while Rule 7(1)(e)(i) says“the application shall be by petition ... supported by an affidavit .... containing .... the following particulars – in cases of total or partial intestacy – the names, addresses, marital state and description of all surviving spouses and children of the deceased....”

10. The non-disclosure of the applicants, in the petition, meant that section 51(2)(g) of the Law of Succession Act and Rule 7(1)(e)(i) of the Probate and Administration Rules were not complied with. That non-disclosure amounted to a substantive defect in the process of obtaining representation, and also amounted to fraud, concealment of information, and misrepresentation, which brought the matter within section 76(a)(b) and (c) of the Law of Succession Act. The court was misled, lied to and hoodwinked into believing that the deceased did not have the 2 children, who are the applicants herein. That defect, fraud, misrepresentation and concealment of information were carried into the confirmation process, where the court was misled into distributing the estate on the false impression that the 2 children did not exist. The share due to the 2 was lost, and they were disinherited. There was also the lie, in the petition, that Juma Wadenya Ajwanga was a son of the deceased, instead of his brother, as it turned out later, at the hearing of those revocation proceedings.

11. Section 76 of the Law of Succession Act is designed to address such mistakes or anomalies, if they happen inadvertently or innocently, and acts of outright fraud, where done deliberately, with an intent to mislead, so as to achieve the objective of disinheriting an heir, so that the perpetrators can arrogate or appropriate to themselves a bigger share of the estate than what they are entitled to. The consequence of such chicanery is that the flawed process, up to confirmation of grant, has to be nullified, and the matter reverted to square one.

12. The final orders shall be as follows:a.That the grant made herein, on 4th May 2005, to Lucia Athieno Opio and Juma Wadenya Ajwang, is hereby revoked;b.That, as a consequence of (a), above, the orders made herein on 30th October 2006, confirming the grant of 4th May 2005, are hereby vacated, and the certificate of confirmation of grant, dated 30th October 2006, is hereby cancelled;c.That, as a consequence of (b), above, any and all transactions carried out on the basis or strength of the said certificate of confirmation of grant, dated 30th October 2006, are hereby cancelled, and the Land Registrar, responsible for Busia County, is hereby directed to cancel any transactions relating Marachi/Bumala/1002, including its subdivision and transfer or transmission to the beneficiaries named in the said certificate of confirmation, and to revert the property to the name of the deceased herein;d.That I hereby appoint David Ouma Otengo and Sospeter Onyango Otengo administrators of the estate of the deceased herein, and I direct that a grant of letters of administration intestate be issued to them;e.That the new administrators, David Ouma Otengo and Sospeter Onyango Otengo, shall apply for confirmation of their grant in the next 45 days, and the matter shall be mentioned thereafter for compliance and directions;f.That in that summons for confirmation of grant, the administrators shall include all the children of the deceased, including any daughters; andg.That any party, aggrieved by these orders, has leave of 30 days, to appeal against the same, at the Court of Appeal.

DELIVERED, DATED AND SIGNED IN OPEN COURT AT BUSIA ON THIS 10TH DAY OF NOVEMBER 2023WM MUSYOKAJUDGEMr. Arthur Etyang, Court Assistant.Mr. Joseph Enaki Okello, the respondent, in person.AdvocatesMs. Nabulindo, instructed by DK Nabulindo & Company, Advocates for the applicants.