[2022] KEHC 12703 (KLR)

In re Estate of Stephen Ouma Ojiambo (Deceased) (Succession Cause 224 of 2015) [2022] KEHC 12703 (KLR) (15 June 2022) (Ruling)

Neutral citation: [2022] KEHC 12703 (KLR)

Republic of Kenya

In the High Court at Busia

Succession Cause 224 of 2015

JR Karanja, J

June 15, 2022

Between

Clementina Anyango Were

Applicant

and

Aloys Were Ajari

Respondent

Ruling

[1]The grant dated September 30, 2015, respecting the estate of Stephen Ouma Ojiambo (deceased) was in the first instance issued to the petitioner, Aloys Were Ajari and confirmed in his favour on February 15, 2017. The necessary certificate of confirmation of grant was issued on February 20, 2017, to the effect that the estate property being land parcel No.Samia/Luanda Mudoma/625, be wholly distributed and transmitted to the petitioner.However, following an application for revocation of the grant by Clementina Anyango Were (objector), the grant was revoked and both the petitioner and objector appointed co-administrators of the estate on the December 3, 2019. An amended fresh grant of letters of administration intestate was accordingly made on July 28, 2020and on the October 4, 2021, the objector/petitioner filed the summons for confirmation of the grant dated September 16, 2021, which indicated an additional estate property being land parcel No.Samia/Luanda/Mudoma/593 which had not been included as part of the estate property when the initial petition or the grant was made by the petitioner/respondent herein.

[2]Nonetheless, the petitioner/respondent in a replying affidavit dated October 29, 2021in support of the petitioner/objector’s summons for confirmation of grant accepted the inclusion of the additional property land parcel No.593 - Samia/Luanda-Mudoma and for it to be shared among three beneficiaries of the deceased i.e. Patrick Odongo Were, Geoffrey Ouma Were and Lilian Were.With respect to property No.625 – Samia/Luanda-Mudoma, whereas the objector proposed that the property be shared equally between two beneficiaries i.e. Patrick Odongo Were and Geofrey Ouma Were, the respondent proposed that the property be wholly distributed to himself.In essence therefore, the respondent’s replying affidavit was only in support of the distribution of the property No.593, in the manner proposed by the objector, but not the proposal made in respect of property No.625. The two administrator’s point of departure only applied to property No.625 thereby implying a protest with respect to the proposal made by the objector/petitioner.

[3]The protest proceeded to hearing even though the court in an attempt to promote alternative dispute resolving mechanism urged the parties to engage with a view to arriving at a positive and full agreement on the mode of distribution of the entire estate property comprising the aforementioned property No.593 and No.625. Both parties filed their respective submissions on the protest through their respective advocates i.e. Messrs J.V. Juma & Co. Advocates and Messrs Obwoge Onsongo & Co. Advocates.The court has given due consideration to the protest against the rival submissions and notes that the actual issue for determination is whether the protest is sustainable and therefore an impediment to the confirmation of the grant in the manner suggested by the objector particularly in relation to the estate property No.625.

[4]In that regard, it is notable from the record that the initial grant issued solely to the respondent was revoked by this court for the main reason that the respondent concealed material facts relating to the polygamous nature of the deceased and the fact that he was survived by several dependants other than the respondent who went ahead to petition for the grant as the sole surviving dependant of the deceased. Other than the foregoing, it is evident that the respondent also concealed the additional property No.593 and proceeded to identify property No.625 as the sole property belonging to the deceased.Be that as it may, the protest has brought into the fore salient issues relating to the actual beneficiaries of the estate and from the summons for confirmation filed by the objector, it would appear that the deceased had three wives but she was the only surviving wife together with several children of the deceased with either of his several wives. All the children are sons of the deceased including the petitioner/respondent. Only two of them Patrick Odongo Were and Geoffrey Ouma Were are included in the proposal made by the objector. A lady called Lilian Were is also included as a beneficiary, yet her relationship with the deceased is not disclosed, neither is she included as being among the rightful beneficiaries of the estate. The other sons of the deceased are not included. They include the petitioner/respondent, yet all the sons were identified as beneficiaries of the estate.

[5]The only way to realize or actualize that benefit was for the entire estate to be distributed proportionally among all the beneficiaries in all the three houses of the deceased. As this was an intestate succession the question whether or not the deceased had allocated his property to his individual sons or houses prior to his death does not arise in the present circumstances as implied by the objector. Otherwise, there would have been a Will by the deceased to that effect or the estate property No.593 and No.625 ought not have been identified as property available for distribution.Quite intriguing and as was pointed out by the petitioner/respondent, the persons slated to benefit from the estate as per the petitioner/objectors proposed mode of distribution are the objector’s own children with the deceased. This means that the proposal omits all other children of the deceased with his other wives including the petitioner/respondent from their rightful inheritance of the estate property clearly identified and availed for distribution among all the rightful beneficiaries.

[6]It is clear from the foregoing observations that the protest to the objectors summons for confirmation of grant mounted by the respondent is sustainable and it hereby sustained to the extent that the grant cannot be confirmed in the manner suggested by the objector or even by the respondent with respect to the entire estate comprising of the property No.593 and No.625. In sum, that summons for confirmation of grant dated September 16, 2021 is hereby dismissed with orders that both the objector and the respondent as the legally appointed administrators of the estate do within the next four (4) months from this date hereof present a fresh joint summons for confirmation of grant to fast track the confirmation of the grant dated July 28, 2020. In default, the grant be revoked forthwith and the matter be referred to the public trustee for administration and distribution of the estate among the beneficiaries in accordance with the law.A mention date be taken to confirm compliance and/or further orders.

J.R. KARANJAHJ U D G E[DATED & SIGNED THIS 15TH DAY OF JUNE 2022]