[2024] KEHC 11801 (KLR)
The court found that the grant issued and confirmed in 1999 was fundamentally defective because it failed to list any beneficiaries or assets of the deceased, except for death benefits. The property now sought to be included was never part of the original petition or the confirmation application. The absence of a...
Source-derived case information.
- Citation
- [2024] KEHC 11801 (KLR)
- Parties
- Applicant: Herina Ayugi Odongo
- Court
- High Court
- Court Station
- High Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Succession Cause E063 of 2024
- Procedural Posture
- Miscellaneous Succession Cause / Ruling on Application for Rectification of Grant
- Outcome
- grant annulled and revoked; file closed; applicant to file fresh petition
- Judges
- RE Aburili
- Legal Topics
- Succession, Grant Rectification, Revocation of Grant, Estate Administration
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Herina Ayugi Odongo
Applicant
Procedural Posture
Miscellaneous Succession Cause / Ruling on Application for Rectification of Grant
Legal Issues
- 1 Whether the grant of letters of administration intestate issued and confirmed in 1999 can be rectified to include property not listed in the original petition.
- 2 Whether the omission of beneficiaries and assets in the original and confirmation applications renders the grant inoperative and subject to revocation.
Ratio Decidendi
The court found that the grant issued and confirmed in 1999 was fundamentally defective because it failed to list any beneficiaries or assets of the deceased, except for death benefits. The property now sought to be included was never part of the original petition or the confirmation application. The absence of a schedule of distribution and the lack of identification of beneficiaries rendered the grant inoperative and useless. Such a grant cannot be rectified, only revoked or annulled. The court therefore annulled and revoked the grant under Section 76(d)(i) of the Law of Succession Act and directed the applicant and her children to file a fresh petition before a court of competent...
Court Disposition
grant annulled and revoked; file closed; applicant to file fresh petition
Orders
- The grant issued to Herina Ayugi Odongo on 25th January 1999 and confirmed on 14th December 1999 is annulled and revoked.
- This file is closed.
Full Case Text
Judgment text and source record
34 paragraphs
In re Estate of Raphael Odongo (Deceased) (Miscellaneous Succession Cause E063 of 2024) [2024] KEHC 11801 (KLR) (1 October 2024) (Ruling)
Neutral citation: [2024] KEHC 11801 (KLR)
Republic of Kenya
In the High Court at Kisumu
Miscellaneous Succession Cause E063 of 2024
RE Aburili, J
October 1, 2024
IN THE MATTER OF THE ESTATE OF RAPHAEL ODONGO (DECEASED)
AND
IN THE MATTER OF AN APPLICATION BY HERINA AYUGI ODONGO - APPLICANT
In the matter of
Herina Ayugi Odongo
Applicant
(Arising from Kisumu HC Succession No. 418 of 1998)
Ruling
1. The deceased Raphael Odongo died on 12th June 1996 at Coast General Hospital aged 48 years. He was a clerical officer at Kenya Ports Authority, Mombasa.
2. On 9th November 1998, the widow petitioned this court for grant of letters of administration intestate to administer his estate.
3. In the petition, she listed several beneficiaries who are herself and her sons and daughters. Only Death Benefits were listed as the assets available in the estate and the value was estimated to be over One Hundred Thousand.
4. The petition was gazetted on 24th December 1998 vide Notice No. 7225 in Succession Cause No. 418 of 1998.
5. The grant was issued on 25th January 1999 as there was no objection to making of the grant as issued.
6. On 30th September 1999, the Petitioner applied for confirmation of the said grant and vide Certificate of Confirmation of grant dated 14th December 1999, the grant was confirmed.
7. In the summons for confirmation of the grant as well as the certificate of confirmation of the grant, there is no beneficiary or heir listed and neither is any asset of the deceased identified or listed.
8. It is now over 25 years. The Petitioners is before this court seeking for rectification of the grant issued to her to include property No. Kisumu/Nyalunya/3090 which she claims was left out during confirmation of the grant.
9. I have considered the application which has made the original succession file No. 418 of 1998 to be retrieved from the Archives.
10. First, it that it is not accurate to say that the property named above was left out during confirmation of the grant. This is so because no such property was listed in P&A 5 as forming part of the estate of the deceased.
11. Second, is that the Petitioner for all those years was only interested in Death benefits of the deceased, as evidence by the listing of Death Benefits as the only asset of the estate.
12. Third, is that even in the application for confirmation of the grant and this application, the beneficiaries of the estate are not listed and their respective shares in the estate are not proposed.
13. Fifth, is that even the asset to be included has no beneficiary proposed as no schedule of distribution of the estate is filed.
14. Sixth, is that the grant as issued on 25th January 1999 and confirmed on 14th December 1999 lost its usefulness. It became inoperative. It also became useless. such a grant cannot and is incapable of being rectified.
15. It is amenable for annulment and revocation under Section 76(d) (i) of the Law of Succession Act.
16. Accordingly, I hereby annul and revoke the grant issued to Herina Ayugi Odongo on 25th January 1999 and confirmed on 14th December 1999 and order this file closed.
17. The Petition and her children to obtain this Ruling and use it to file a fresh petition before a court of competent jurisdiction, within the geographical jurisdiction of the estate of the deceased Raphael Odongo.
18. This file is closed. I so order.
DATED, SIGNED AND DELIVERED AT KISUMU THIS 1STDAY OF OCTOBER, 2024R. E. ABURILIJUDGE