[2022] KEHC 15486 (KLR)

In re Estate of Paul Arwa Lala-Deceased (Succession Cause 71 of 2015) [2022] KEHC 15486 (KLR) (15 November 2022) (Judgment)

Neutral citation: [2022] KEHC 15486 (KLR)

Republic of Kenya

In the High Court at Kisumu

Succession Cause 71 of 2015

RE Aburili, J

November 15, 2022

IN THE MATTER OF THE ESTATE OF PAUL ARWA LALA-DECEASED

Between

Fredrick Omondi Omolo

Petitioner

and

John Osango Ajowi

Applicant

Judgment

1. The applicant/Objector’s application dated 1st July, 2021 seeks the following reliefs:a.That the certificate of confirmation of grant issued on 13th April, 2017 and letters of administration intestate made on 13th March, 2015 herein to Fredrick Omondi Omollo be nullified since the applicant and his families were not included as liabilities and they have been staying on land No. Kisumu/Karateng/1616 since their birth and both of their parents were buried in the same land.b.That upon nullification, the applicant be included to be part of the beneficiary in the deceased estate and land parcel no. Kisumu/Karateng/1616 be transferred to the applicant’s name since the said land was erroneously transferred to Paul Arwa Lala-deceased.c.That the grant made on the 13th March 2015 and all consequential orders thereto be stayed and or varied on such terms as the court may deem just.d.Costs of the application be in the cause.

2. The application is premised on the grounds that the petitioner colluded with the area Assistant Chief to deceive the court that he and one Marion Omollo Sesoa were the beneficiaries over the parcel of land yet it belongs to one, Pitalis Ajowi Owuor, the applicant’s father. It is further claimed that the deceased herein Paul Arwa Lala fraudulently transferred the parcel of land into his name contrary to the adjudication records. The applicant avers that his late father built a house in the year 1966 on the land and in the year 1974, Pitalis Ajowi and one Elkana Chore appeared before the Land Disputes Tribunal and agreed that the land be registered in Pitalis Ajowi’s name. That he and his family have been living on the land since his birth.

3. It is the applicant’s case therefore that the grant was obtained fraudulently and non-disclosure of material facts thus the prayer that the same be nullified. The applicant alleges that he came to know of the matter when he was informed by phone that surveyors were at his homestead and his sister in-law had been arrested.

4. The application is opposed through the petitioner’s replying affidavit sworn on 13th August, 2021 wherein he deposes that the disputed land belonged to his late father Paul Arwa Lala which is now registered in his name after successfully obtaining letters of administration intestate. He denies any collusion between himself, Marion Sesoa and the area Chief saying that they are the grandchildren of the late Paul Arwa Lala.

5. The Respondent deposes that his late father made a report to the adjudication officer that some individuals had encroached onto his land and he also filed the same complaint when the applicant encroached thus the applicant’s belief that the land belongs to his father. He denies the existence of any agreement in the alleged terms that the land was to be registered in the applicant’s father’s name as none has been produced in court. He further denies the allegation that the applicant’s parents were buried in the land and or that the applicant is in occupation of the land. He contends that the land disputes tribunal proceedings relate to different parcels of land from the parcel herein.

6. By directions of the court, the application was disposed of by way of written submissions which were highlighted in court. The applicant submitted that his father lived on the parcel and borders the petitioner’s homestead and that the petitioner herein has invaded the applicant’s home and that the applicant cannot now access his home. He submitted that his late father had lived on the subject parcel during the petitioner’s grandfather’s lifetime and that when he realized the title to the land had been registered in Elkana’s name, he reported the matter to the Chief and was issued with a letter to get the title deed in 1975.

7. The applicant relied on the provisions of Section 76 of the Law of Succession Act to buttress his point that the grant was obtained through fraud, misrepresentation and concealment of material facts by the respondent. He further relied on the authorities in Jamleck Maina Njoroge v Mary Wanjiru Mwangi (2015) eKLR, Re Estateof Moses Wachira Kimotho (deceased) (2009)eKLR and Re Estateof Magangi Obuki (deceased) (2020) eKLR in advancing his argument for grounds that can lead to revocation of grant.

8. On his part, the petitioner submitted that he obtained letters of administration to his grandfather’s estate comprising land parcel No. Kisumu/Karateng/1616 and has subdivided it to cede portions to his brothers. He contends that the aforesaid parcel of land is adjacent to Kisumu/Karateng/1618 which are adjacent parcels, according to the survey records. He denies that he has any claim to the former parcel.

Analysis and determination. 9. I have carefully considered the application for revocation of grant by the applicant/ objector, the replying affidavits and the rival submissions by both parties. I find the issue for determination in this matter is whether the applicant has met the threshold for revocation and or annulment of grant under Section 76 of the Law of Succession Act which provides that:“76. A grant of representation, whether or not confirmed, may at any time be revoked or annulled if the court decides, either on application by any interested party or of its own motion—(a)that the proceedings to obtain the grant were defective in substance;(b)that the grant was obtained fraudulently by the making of a false statement or by the concealment from the court of something material to the case;(c)that the grant was obtained by means of an untrue allegation of a fact essential in point of law to justify the grant notwithstanding that the allegation was made in ignorance or inadvertently;(d)………..—(i)………; or(ii)………; or(iii)……….; or(e)that the grant has become useless and inoperative through subsequent circumstances.”

10. This Section was interpreted in Matheka and Another v Matheka [200] 2 KLR 455 where the Court of Appeal stated that:“Even when revocation is by the court upon its own motion, there must be evidence that the proceedings to obtain the grant were defective in substance, or that the grant was obtained fraudulently by the making of a false statement or by concealment of something material to the case or that the grant was obtained by means of untrue allegation of facts essential in point of law or that the person named in the grant has failed to apply for confirmation or to proceed diligently with the administration of the estate.”

11. The applicant’s main contention in this application is that the grant was obtained through the making of misleading information and or fraudulently by making of untrue allegations that the petitioner and one Marion Sesoa Omollo were the only beneficiaries of the late Paul Ariwa Lala yet the true position was that the applicant’s father was the owner of the suit parcel of land. The applicant further claims that in furthering their fraudulent activities, the petitioner and the said Marion colluded with the area Chief who wrote a letter confirming this position. He asserts that his father had sued one Elkana Chore over the same parcel and that it was resolved that the parcel be registered in the applicant’s father’s name. He maintains that he has been living on the suit parcel of land since his birth and has relatives buried thereon.

12. On his part, the petitioner contends that land parcels Kisumu/Karateng/1616 and 1618 are adjacent parcels and that he has no claim whatsoever over the latter which he alleges belongs to the applicant’s father. He states that he successfully petitioned the court for grant of letters of administration without objection from the applicant and that the applicant’s misconception flows from an encroachment by his kin hence, the applicant’s claim is now based on that encroachment.

13. A perusal of the court file shows that the petitioner herein petitioned for letters of administration intestate which was confirmed on the 4th of July, 2017 in his favour. Among the documents in support of the petition is a certificate of official search relating to land parcel Kisumu/Karateng/1616 issued 30th December, 2014 showing that the land was registered in the name of Paul Ariwa on 20/4/1977.

14. The Chief’s letter accompanying the petition introduces the petitioner and one Paul Ariwa Omollo being the kin of Paul Ariwa. This fact has not been controverted by the applicant/Objector herein.

15. In support of the application for revocation of grant, the applicant annexed copies of the land disputes tribunals finding and the Chief’s letter dated 25th May, 2021 wherein the Chief indicates that land parcel Kisumu/Karateng/1616 belongs to the applicant’s father who was buried thereon. However, I observe that the proceedings before the Land Disputes Tribunal relate to a different parcel of land number 1265 between Paul Ariwa and one John Ongoya. There is no mention of Pitalis, the applicant’s father. The court further observes that the applicant’s complaint dates back to the adjudication of land period in that area and the subsequent proceedings before the Land Disputes Tribunal which he alleges to have ceded the parcel to his father

16. The power to revoke a grant is discretionary as was held in the case of Albert Imbuga Kisigwa v Recho Kavai Kisigwa (2016) eKLR that:“Power to revoke a grant is a discretionary power that must be exercised judiciously and only on sound grounds. It is not a discretion to be exercised whimsically or capriciously. There must be evidence of wrong doing for the court to invoke section 76 and order to revoke or annul a grant. And when a court is called upon to exercise this discretion, it must take into account interests of all beneficiaries entitled to the deceased’s estate and ensure that the action taken will be for the interest of justice.”

17. Having analyzed the material placed before me as above, there is no doubt that the deceased herein Paul Arwa Lala is the named proprietor of parcel number Kisumu/Karateng/1616 as at the time of his death and it is only his children and or bona fide dependants who are entitled to petition for letters of administration intestate to his estate. Clearly, the applicant is not related to the said proprietor in any way save for the allegation that his deceased father was the owner of the disputed land subject of the estate of the deceased Paul Ariwa Lala pursuant to a truce entered into at the Land Disputes Tribunal. No evidence however was adduced in support of this oral allegation as the proceedings before the LDT did not involve the applicant’s father and the petitioner’s deceased kin and registered proprietor of the suit land.

18. The applicant also alleged that he is in occupation of the aforesaid parcel of land and that his kin are buried thereon but he did not adduce any evidence to prove that allegation.

19. Accordingly, I find that the applicant has not satisfied this court that he is entitled to the orders sought for revocation or annulment of the grant issued to the petitioner herein. I find that the petitioner’s parcel and the applicant/objector’s parcel of land are adjacent and that the applicant/ objector’s claim is based on misconception.

20. I also find that the application is based on a claim dating back to the adjudication era which this court has no jurisdiction to delve into as this is a succession court and any claim over ownership of land is in the province of the Environment and land Court as stipulated in Section 13 of the Environment and land Court Act and Articles 162(2) (b) and 165(5) (b) of the Constitution.

21. For the above stated reasons, I find no merit in the application which is hereby dismissed with an order that each party shall bear their own costs.

22. File Closed. I so order.

DATED, SIGNED AND DELIVERED AT KISUMU THIS 15TH DAY OF NOVEMBER, 2022. R.E. ABURILIJUDGE