[2017] KEHC 7275 (KLR)
The court found that the applicant, as a daughter of the deceased, was a dependant under Section 29 of the Law of Succession Act, which does not discriminate based on gender. The respondent's reliance on Teso customary law to exclude the applicant was held to be repugnant to justice and morality and contrary to...
Source-derived case information.
- Citation
- [2017] KEHC 7275 (KLR)
- Parties
- Applicant: Nawire Regina Omula; Respondent: Federiko Paulo Ounoi
- Court
- High Court
- Court Station
- High Court at Busia
- Jurisdiction
- Kenya
- Case Number
- Probate & Administration 339 of 2013
- Procedural Posture
- Probate and Administration / Ruling on Summons for Revocation or Annulment of Grant
- Outcome
- application allowed; grant annulled; joint administrators appointed
- Legal Topics
- Succession, Revocation of Grant, Non Disclosure of Beneficiaries, Customary Law Vs Statute
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Nawire Regina Omula
Applicant
Federiko Paulo Ounoi
Respondent
Procedural Posture
Probate and Administration / Ruling on Summons for Revocation or Annulment of Grant
Legal Issues
- 1 Whether the exclusion of the applicant, a daughter of the deceased, from the list of beneficiaries justified revocation of the grant.
- 2 Whether reliance on Teso customary law to exclude a married daughter from inheritance is valid under Kenyan law.
- 3 Whether non-disclosure of all dependants constitutes a material concealment warranting annulment of the grant.
Ratio Decidendi
The court found that the applicant, as a daughter of the deceased, was a dependant under Section 29 of the Law of Succession Act, which does not discriminate based on gender. The respondent's reliance on Teso customary law to exclude the applicant was held to be repugnant to justice and morality and contrary to statutory law. The respondent's failure to disclose all dependants, specifically the applicant, constituted concealment of material facts, which is a ground for revocation of the grant under Section 76(b) of the Law of Succession Act. Consequently, the grant issued and confirmed to the respondent was annulled, and both the applicant and respondent were appointed as joint...
Court Disposition
application allowed; grant annulled; joint administrators appointed
Orders
- The grant made to the respondent and confirmed on 2nd February, 2015 is annulled.
- The applicant and respondent are appointed joint administrators of the estate of the deceased.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT BUSIA
PROBATE AND ADMINISTRATION NO. 339 OF 2013
IN THE MATTER OF THE ESTATE OF PAULO EZODI AME...…DECEASED
NAWIRE REGINA OMULA ....……APPLICANT/OBJECTOR
VERSUS
FEDERIKO PAULO OUNOI.…..RESPONDENT/PETITIONER
RULING
(Summons for revocation or annulment of grant dated 2nd August, 2016)
1. Nawire Regina Omula, the Applicant/Objector through the summons for revocation of a grant dated 2nd August, 2016 seeks an annulment of the grant issued and confirmed to the Respondent/Petitioner Federiko Paul Ounoi in respect of the estate of the deceased Paul Ezodi Ame (hereinafter simply referred to as the deceased).
2. The application is supported by an affidavit sworn by the Applicant on 2nd August, 2016 in which she avers that she is a daughter of the deceased but her name was not included in the list of the beneficiaries. Her case is that the grant and the confirmation thereof were obtained upon non-disclosure of material information.
3. The Respondent though served with a hearing notice did not attend the hearing of the application. However, in a replying affidavit sworn on 21st September, 2016, he averred that in accordance with the Teso customary laws he excluded the Applicant as a daughter of the deceased as she is already married elsewhere.
4. The certificate of death filed by the Respondent herein shows that the deceased passed away on 2nd December, 2012. In accordance with Section 2 of the Law of Succession Act, Chapter 160 the estate of the deceased who died intestate is governed by the said Act.
5. Section 29 of the Law of Succession Act, Chapter 160 defines a dependant to includea child of a deceased person. The definition does not discriminate between a son and a daughter. Even without reference to the 2010 Constitution, it goes without saying that the custom which the Respondent relied on in excluding the Applicant from the list of the dependants is repugnant to justice and morality. He was misadvised and ended up failing to disclose all the dependants of the deceased.
6. His actions amount to concealment of something material to the case which is a ground for the revocation of a grant as per Section 76(b) of the Law of Succession Act, Chapter 160.
7. In essence, the application has merit. The same succeeds and the grant made to the Respondent/Petitioner and confirmed on 2nd February, 2015 is annulled. The Objector and the Petitioner shall be appointed joint administrators of the estate of the deceased.
8. In light of the fact that this is a family affair, I direct each party to meet own costs of the application.
Dated, signed and delivered at Busia this 16thday of March, 2017.
W. KORIR,
JUDGE OF THE HIGH COURT