[2021] KEHC 6251 (KLR)
The court found that the applicant failed to establish that the petitioners acted contrary to section 76(d) of the Law of Succession Act. There was no evidence of concealment of material facts or lack of diligence in the administration of the estate. The omission of a beneficiary does not automatically amount to...
Source-derived case information.
- Citation
- [2021] KEHC 6251 (KLR)
- Parties
- Applicant: Alice Imali Osolo; Applicant: Mary Njambi Osolo; Respondent: Daniel Ogana Osolo
- Court
- High Court
- Court Station
- High Court at Busia
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 100 of 2002
- Procedural Posture
- Succession Cause / Ruling on Application for Revocation of Grant
- Outcome
- application dismissed
- Legal Topics
- Revocation of Grant, Administration of Estate, Diligence of Administrator
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Alice Imali Osolo
Applicant
Mary Njambi Osolo
Applicant
Daniel Ogana Osolo
Respondent
Procedural Posture
Succession Cause / Ruling on Application for Revocation of Grant
Legal Issues
- 1 Whether the petitioners failed to proceed diligently with the administration of the estate as required under s.76(d)(ii) of the Law of Succession Act.
- 2 Whether omission of a beneficiary amounts to lack of diligence or concealment of material facts warranting revocation of grant.
Ratio Decidendi
The court found that the applicant failed to establish that the petitioners acted contrary to section 76(d) of the Law of Succession Act. There was no evidence of concealment of material facts or lack of diligence in the administration of the estate. The omission of a beneficiary does not automatically amount to lack of diligence or concealment, and any such oversight can be remedied by including the omitted beneficiary in the distribution. The application for revocation of grant was deemed to be without merit and an abuse of the court process, especially considering the significant lapse of time since the grant was confirmed.
Court Disposition
application dismissed
Orders
- The application for revocation of grant is dismissed.
- Each party shall bear their own costs.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT BUSIA
SUCCESSION CAUSE NO.100 OF 2002
IN THE MATTER OF THE ESTATE OF THE LATE
NELSON OGANA OSOLO..............................................DECEASED
AND
ALICE IMALI OSOLO..........................................1ST PETITIONER
MARY NJAMBI OSOLO.....................................2ND PETITIONER
VERSUS
DANIEL OGANA OSOLO......................OBJECTOR/APPLICANT
R U L I N G
1. The application dated 29th March 2019, for revocation of the grant issued on 11th February 2004 and confirmed on 4th December 2004 in favour of Alice Imali Osolo and Mary Njambi Osolo (petitioners), is made by Daniel Ogana Osolo (applicant/objector) under s.76 (d) of the Law of Succession Act on the basis of the grounds set out in the necessary summons and fortified by the applicant’s supporting affidavit dated 29th March 2019.
Both petitioners filed that respective replying affidavits in respect to the application which was canvassed in court by way of written submissions which were filed by the first petitioner (Alice) and the applicant through the firm of Bogonko, Otanga & Co. Advocates.
The second petitioner (Mary) did not file any submissions.
2. Having considered the application on the basis of the supporting grounds, and the written submissions, it became apparent to the court that the issue for determination is whether the petitioners have failed to proceed diligently with the administration of the estate as contemplated in paragraph sub section (ii) of s.76 (d) of the Law of Succession Act.
Although in the application the applicant tends to indicate concealment of material facts as a supporting ground, the necessary sub section (b) of s.76 of the Act is not invoked.
In any event, there was no evidence from the applicant that the petitioners concealed material information by failing to identify all the beneficiaries for the distribution of the estate. Such beneficiaries included the two surviving widows, of the deceased (petitioners) and the children of the deceased with or without them.
3. Further none inclusion of a beneficiary in the distribution of the estate of a deceased person does not prove nor mean that the petitioners/administrators have not proceeded diligently with the administration of the estate. Any oversight in that regard can easily be remedied by inclusion of the omitted beneficiary in the distribution of the estate.
Clearly, the applicant has failed to establish that the petitioners acted contrary to s.76 (d) of the Law of Succession Act in the administration of the estate. Consequently, this application is devoid of merit and was clearly made in bad faith considering that it was filed herein on the 29th March 2019 yet the subject grant was issued as amended on 11th February 2004 and confirmed belatedly on 4th December 2007, a period of more than ten (10) years. It would not be far-fetched for this court to opine that the application was nothing less than an afterthought intended to abuse the court process.
4. The necessary certificate of confirmation of grant indicated that the estate was shared between the two houses of the deceased more or less in terms of the provisions of s.40 (1) of the Law of Succession Act and according to the petitioners particularly the first petitioner, the children of the deceased who did not fall within any of the two houses were accommodated in either of the two houses for necessary distribution of the estate.
In sum, the present application as noted hereinabove is devoid of merit and is hereby dismissed with each party bearing their own costs.
J.R. KARANJAH
J U D G E
[Read and signed this 16TH day of JUNE 2021]