[2022] KEHC 16325 (KLR)

In re Estate of Silfanus Ogodo Malela (Probate & Administration 525 of 2015) [2022] KEHC 16325 (KLR) (14 December 2022) (Ruling)

Neutral citation: [2022] KEHC 16325 (KLR)

Republic of Kenya

In the High Court at Homa Bay

Probate & Administration 525 of 2015

KW Kiarie, J

December 14, 2022

Between

Morene Atieno Ogodo

Applicant

and

Alois Awiti Ogodo

Respondent

Ruling

1. Morene Atieno Ogodo the applicant herein, moved the court by summons for revocation dated March 4, 2021 under section 76 (d) (ii) of the Law of Succession Act. She is seeking the following orders:a.That the grant of letters of administration issued to Alois Awiti Ogodo the petitioner/respondent herein on March 11, 2016 and confirmed on the February 21, 2017 be revoked.b.That a new grant of letters of administration be issued jointly to the applicant and the respondent in accordance to the new mode of distribution as per the actual division on the ground.c.That costs be borne out of the estate.

2. The application was premised on the following grounds:a.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.b.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.c.That the estate of the deceased is bound to suffer if the grant of letters of administration in favour of the petitioner is not revoked.d.That it is expedient and in the interest of justice and beneficiaries of the estate of the deceased that the grant of letters of administration herein be revoked.

3. The respondent opposed the application on the following grounds:a.That the deceased whose estate relate herein died a polygamous man on the April 10, 2014 at Kokoth Kataa sub location and left two assets registered in his name, being LP No W Karachuonyo/Kokoth’B’/842 measuring approximately 3. 2hectares and Kanyada/K/Kalanya/3347 measuring approximately 0. 2 of a hectare.b.That only land parcel No Kanyada/K/Kalanya/3347 was solely registered in the name of the deceased whereas the other land parcel was jointly registered in the name of the deceased and Ochoo Malela, Ogodo Olala Malela and Awiti Malela who are also deceased with each having an equal interest on a portion of the said land measuring approximately 0. 8 of a hectares.c.That we agree to hire the services of a physical planner and government survey who upon visiting the land parcel No Kanyada/K/Kalanya/3347 apportioned each beneficiary a portion thereof including the applicant herein whose portion measuring approximately 0. 029 of a hectare was awarded one of her sons called Calvin Odhiambo alias Sadam.d.That the act of the applicant to continue being in possession of land parcel number Kanyada/K/Kalanya/8416 amounts to actionable trespass.e.That the succession was filed with the consent, knowledge and participation of the applicant from initiation to the end and therefore the instant applicant is an abuse of the court process and the same should be dismissed with costs.

4. Section 76 (d) (ii) of the Law of Succession Act provides as follows: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—(d)that the person to whom the grant was made has failed, after due notice and without reasonable cause either—(iii)to produce to the court, within the time prescribed, any such inventory or account of administration as is required by the provisions of paragraphs (e) and (g) of section 83 or has produced any such inventory or account which is false in any material particular;

5. The applicant’s application does not appear candid. Whereas she came to court under the provisions of failure to render account, her supporting affidavit brings about other issues unrelated to rendering of accounts. She cannot be allowed to proceed in the manner she has chosen to. This will not only be unfair but will be calling upon this court to adjudicate on matters not properly before it.

6. The application must and is hereby dismissed.

7. The grant herein was confirmed on July 21, 2017. The administrator has taken inordinately long time to render accounts. I make an order that he renders accounts within 30 days of today failure to do so, the grant will automatically be revoked without any reference to the parties unless extension of time has been sought and granted.

8. Each party to meet own costs.

Delivered and signed at Homa Bay this 14thday of December, 2022KIARIE WAWERU KIARIEJUDGEP&A No. 525 of 2015 Page 2