[2022] KEHC 18075 (KLR)

In re estate of Othieno Onyango – Deceased (Civil Appeal E016 of 2021) [2022] KEHC 18075 (KLR) (6 July 2022) (Judgment)

Neutral citation: [2022] KEHC 18075 (KLR)

Republic of Kenya

In the High Court at Busia

Civil Appeal E016 of 2021

JR Karanja, J

July 6, 2022

IN THE MATTER OF THE ESTATE OF OTHIENO ONYANGO – DECEASED

Between

Nobert Owino Othieno

Appellant

and

Wandera Patrick Were

1st Respondent

Mildred Auma

2nd Respondent

Judgment

1. The appellant, Nobert Owino Othieno, preferred this appeal after being aggrieved by the ruling of the Principal Magistrate delivered on February 26, 2020 in Busia CMCC Succession Case No.149 of 2019 which was formerly High Court P & A cause No.294 of 2013, where grant of letters of administration intestate respecting the estate of Otieno Onyango (deceased) issued to the appellant on November 25, 2013, were confirmed in favour of the appellant and five other beneficiaries including his siblings Andrew or Anderea Opondo Keya, Onyango Otieno Onyango and Wilberforce Ongondo. The other two beneficiaries i.e. Wandera Patrick Were and Mildred Auma, were the alleged purchasers of part of the estate property being land parcel Bukhayo/Bugengi/627.

2. The necessary certificate of confirmation of grant was accordingly issued on July 3, 2020. The memorandum of appeal dated June 3, 2021, indicated that the appeal is against the distribution of the estate property to the alleged purchasers (first & second respondents/objectors) and it contains four (4) grounds viz:-(1)That, the learned trial magistrate erred in fact and law by declaring that the appellant/petitioner shares his part of inheritance with the first respondent whom he never sold to any portion of the estate.(2)That, the learned trial magistrate erred in fact and law when he relied on the statement of one village elder William Ojwang Obuko who was never a witness to any sale transactions if any between the appellant and first respondent and who was never cross examined before reaching at this finding.(3)That, the learned trial magistrate erred in law and fact when he distributed the estate based on documents in the file without any examination on the said documents or even admissions in support of the said document from the parties herein.(4)That, the learned trial magistrate erred in law and fact in failing to property evaluate the evidence on record before arriving at his findings.

3. The appeal was canvassed by way of written submissions which were filed by the appellant on April 1, 2022 through Abalo & Co. Advocates. The respondent’s submissions in opposition to the appeal were filed on June 27, 2022 through Okeyo Ochiel and Co. Advocates.This court has given due consideration to the appeal on the basis of the supporting grounds and the rival submissions. The court’s role was therefore to re-consider the matter afresh and arrive at its own conclusions.

(4)The determination on whether or not to sustain or overrule the grounds of appeal would necessarily be dependant on a careful examination of the record and what comes out of it. In that regard the record shows that the deceased passed away on April 12, 1976 and was survived by his sons and grandsons. He left behind land parcel Bukhayo/Bugengi/627 (The Estate property) which was expected to be distributed to the rightful beneficiaries as it was in the name of the deceased in 1971, but the title deed was issued long after his death in September 2007 as per the search certificate dated July 29, 2013.

(5)Vide the petition for letter of administration intestate made by the appellant (Nobert), the necessary grant was issued on November 25, 2013 pursuant to an order of the court made on October 20, 2013. Thereafter, on the February 18, 2014, the appellant took out summons for confirmation of grant, but the respondents raised objection claiming purchaser’s interest in the estate property. The affidavits and/or statements filed by the respondents indicated that the second respondent (Mildred) purchased part of the estate from the appellant’s brother, Onyango Otieno Onyango, who allegedly acted on behalf of the appellant in the transaction which occurred on January 26, 2011, while the first respondent (Patrick) also purchased a part of the estate property from the same brother of the appellant, Onyango Otieno Onyango, in an earlier transaction which occurred on August 23, 2007.

(6)On May 7, 2018, the respondents/objectors withdrew their respective objections so that they could pursue their rights with the sellers of part of the estate property. This prompted the appellant to forge ahead with his application for confirmation of the grant, but the second respondent re-newed her objection vide the affidavit of protest dated March 12, 2019. As at that time the matter had been moved to the Magistrate’s Court for hearing of the new objection on July 4, 2019, when the objector appeared in court alone prompting matter to be adjourned to the November 6, 2019 when it was pushed forward to November 13, 2019, for mention.

(7)On the November 13, 2019, in the presence of the petitioner (appellant) the court directed the parties to go home and agree on the respective shares of the estate and if possible identify the shares they sold before distribution. Thereafter, on the December 18, 2019, when the petitioner appeared in court in the absence of the other parties he informed the court that the parties did not agree at home.The court then indicated that it will distribute the estate based on documents in the file and actually did as much in its ruling or judgement delivered on February 26, 2020, which is the subject of the present appeal.

(8)The certificate of confirmation of grant issued on the July 3, 2020, was a result of the impugned ruling. It clearly indicates that part of the estate property was distributed to the two respondents who were treated as beneficiaries on account of purchase of the respective parts.Indeed, this appeal turns on the distribution of the estate by the trial court in the manner specified in the certificate of confirmation of grant. The petitioner/appellant is particularly aggrieved by the order of the court compelling him to share his inheritance with the first respondent who he never sold to, part of the estate property. He does not seem to have any substantial dispute with part of the estate property which was allegedly sold to the second respondent.

(9)However, the appellant’s dispute with the first respondent does invariably impact on the distribution of part of the estate property to the second respondent as her interest in the estate property arises from her alleged right to the estate as a purchaser similar to that of the first respondent.From a broad spectrum, the outcome of this appeal will affect the certificate of confirmation of grant inasmuch as it was issued pursuant to the impugned ruling.

[10]From the history of the matter and all the documents filed herein it is clear to this court that the impugned ruling was made rather prematurely prior to the hearing of the appellant’s summons for confirmation of grant as opposed by the second respondent vide the relevant affidavit of protest. Even though the parties were given an opportunity to agree on their own the manner of distribution of the estate and they failed in that regard it was incumbent for the trail court to set for hearing the appellant’s summons for confirmation of grant and the second respondent’s objection.Ideally, the trial court ought to have given directions on the mode of hearing the protest on the summons for confirmation before actual distribution of the estate as proposed by the petitioner or protestor and if none of the proposals was acceptable by the court it would proceed to distribute the estate in accordance with the law.

(11)In this matter, the trial court did not hear any of the parties on distribution but proceeded to distribute the estate on the basis of the documents availed in the record file. In so doing, the trial court overlooked the glaring facts that there was uncertainty as to the rightful beneficiaries of the estate and that the alleged buyers of part of the estate were not listed as a liability in the petition for the grant of letters of administration. There was also uncertainty as to whether the alleged buyers did actually purchase the property and from whom.Most importantly, regarding the alleged interest of the respondents in the estate property, the documents availed showed that the property was still in the name of the deceased at the time of the alleged sale transactions and none of the actual beneficiaries had the power to sell the property of the deceased without a formal confirmation of the grant.

(12)Neither the petitioner (appellant) nor his brother, Onyango Otieno Onyango, had the power or authority to sell part of the estate to any third parties including the two respondents. Therefore, the respondents could not claim a buyer’s interest in the estate arising from a fraudulent and invalid sale transaction. The respondent’s claim (if any) lay in damages against those who sold them part of the estate property and certainly not in the estate property part thereof which was sold prior to the distribution of the estate and issuance of any certificate of confirmation of grant.

(13)It would follow that the distribution of the estate in terms of the impugned ruling of the court was undertaken without proper ascertainment of the actual beneficiaries and the share of the property available for distribution to each of the three and actual beneficiaries of the estate who did not possibly include the two respondents. The issuance of the certificate of confirmation of grant on July 3, 2020 was premature.

(14)It is for all the foregoing reasons that this court finds that this appeal is well merited on all the four grounds which are hereby sustained with the result that the appeal is allowed to the extent that the ruling of the trial court delivered on February 26, 2020 and the accruing certificate of confirmation of grant dated July 3, 2020 are hereby set aside with orders that the matter do revert to the lower court for confirmation of the grant and distribution of the estate property to the actual and proper beneficiaries.In that regard, the appellant/petitioner do take all fresh summons for confirmation of grant in the next (4) months from this date hereof, failure to which the grant of letters of administration intestate issued on November 25, 2013, be revoked forthwith.The parties shall bear their own costs of the appeal.Ordered accordingly.

J.R KARANJAHJUDGE[DATED & DELIVERED THIS 6TH DAY OF JULY 2022]