[2018] KEHC 3326 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MIGORI

SUCCESSION CAUSE NO. 441 OF 2014

IN THE MATTER OF THE ESTATE OF THE LATE WILSON MASUBO CHACHA (DECEASED)

-between-

1. ANDREW OWUOR MASUBO

2. BERNARD ODOYO MASUBO…...................................................APPLICANTS

-versus-

1. SUSAN ORINA MASUBO

2. SAMWEL OKOTH MASUBO

3. JARED JOEL OKELLO KASSAM …….....................................RESPONDENTS

RULING

1. By a Chamber Summons dated 04/11/2015 and evenly filed in Court, the Applicants herein applied inter alia for the revocation of the grant of the representation in respect of the estate of Late Wilson Masubo Chacha(hereinafter referred to as ‘the deceased’) and the nullification of a sale of a portion of the estate property known as Plot No. 37 (New No. 45) within Migori Town (hereinafter referred to as ‘the Plot’) by Susan Orina Masubo to Jared Joel Okello Kassam.

2. The application was supported by the joint supporting affidavit of the Applicants sworn on 04/11/2015 and a joint supplementary affidavit of the Applicants sworn on 19/02/2016. The application was opposed by the Respondents through the Replying Affidavit of the third Respondent sworn on 28/01/2016. It is instructive to note that the Replying Affidavit went missing in the Court file and efforts to get a copy thereof from the Counsels on record proved futile. The Deputy Registrar formally wrote to the Counsels vide a letter dated 27/06/2017 to no avail. This Court as well severally mentioned this matter with notice to the parties to avail the said Replying Affidavit in vain. That being so, this Court however gathered the Respondents’ position through their Counsel’s submissions.

3. The gist of the application is that this Court (Majanja, J.) by Ruling No. 2 delivered on 08/12/2014 confirmed the Grant and distributed the estate property whereof Susan Orina Masubo, the then surviving widow and hereinafter referred to as ‘Susan’, was decreed a life interest in the Plot and thereafter the Plot was to devolve to the Applicants and the second Respondent herein, who are brothers, in equal shares. That, instead Susan illegally sub-divided the Plot and sold part of it to the third Respondent hereinJared Joel Okello Kassam (hereinafter referred to as ‘Jared’) and transferred the remainder thereof to the second Respondent, Samwel Okoth Masubo,whom I shall hereinafter refer to as ‘Samwel’. I will as well refer to Andrew Owuor Masuboto as ‘Andrew’ andBernard Odoyo Masuboto as ‘Bernard’. Susan is the mother of Samwel and a step mother to Andrew and Bernard. The action of Susan precipitated the application.

4. The Respondents’ position in opposing the application is that Susan was the undisputed Administratrix of the estate from 04/03/1992 courtesy of Migori SPM Succession Cause No. 4 of 1992 until when the grant was revoked on 17/10/2014. That, on 03/11/2012 Susan lawfully entered into a sale agreement for part of the Plot with Jared Joel Okello Kassam. That, despite the later revocation of the grant in 2014 Section 93 of the Law of Succession Act, Cap. 160 of the Laws of Kenya saved the sale and that what was held by Susan in life interest was the remainder of the Plot.

5. There is no dispute on the Susan was the sole Administratrix of the estate from 04/03/1992 up to 17/10/2014. It is equally not in dispute that the grant issued in favour of Susan was revoked on 17/10/2014 and a fresh grant issued. The fresh grant was subsequently confirmed on 08/12/2014 and the estate property devolved as follows: -

“Having considered the entire matter, I now confirm grant issued on 14th October 2014 on the following terms;

a) SUSAN ORINA MASUBO shall hold the MIGORI TOWN PLOT NO. 37 (NEW NO. 45) during her lifetime in trust for ANDREW OWUOR MASUBO, BERNARD ODOYO and SAMUEL OKOTH MASUBO in equal shares.

b) SUNA EAST / WASWETA 1 / 4427 shall be divided into thirteen (13) equal shares as follows;

1. LAWRENCE ODHIAMBO MASUBO

2. BERNARD ODOYO MASUBO

3. SAMSON OTIENO MASUBO

4. JULITA AJWANG ODIRA and PHILIP OUMA

5. SIMEONE MAUCHA MASIBO

6. JACKSON NYAINDA MASIBO

7. ANDREW OWUOR MASIBO

8. PAUL OCHIENG MASIBO

9. ISMAIL OKONGO MASIBO

10. SAMUEL MICHA MASUBO

11. MAREN AKINYI MANINGI and POLYCARP ODHIAMBO MANINGI holding in trust and in equals shares on behalf of AUSTINE OTIENO MANINGI, EMILLY ACHIENG MANINGI, VERA ADHIAMBO MANINGI, PHILDON OKOTH MANINGI and POLYCARP ODHIAMBO MANINGI.

12. SAMUEL OKOTH MASUBO

13. DORIS ADHIAMBO MASUBO, TERESA ACHIENG MASUBO, ELSA AKEYO MASUBO, FLORENCE MASUBO, DORCA AKEYO MASUBO, JENNIFFER ATIENO MASUBO and GRACE ANYANGO MASUBO in equal shares.

(c) There shall be no order as to costs.

6. Susan participated in the confirmation proceedings as the first Respondent. Parties dealt with the estate properties which included the Plot. The issue of Susan having sold part of the Plot did not arise for the Court’s consideration. The Court subsequently confirmed the grant and the estate properties accordingly devolved where Susan was decreed to have a life interest in the whole of the Plot and thereafter the whole of the Plot would devolve to Samwel, Andrew and Bernard in equal shares. Jared never featured in the distribution.

7. In as much as the contention surrounding Section 93 of the Law of Succession Act raises an arguable issue this Court cannot deal with the same as at now since the application under consideration is not for rectification, setting aside or review of the confirmation proceedings but rather enforcement thereof. The issue can only be competently dealt with in an application seeking to undo Ruling No. 2. The argument on Section 93 of the Law of Succession Actis for now misplaced and is for rejection. As long as Ruling No. 2 still stands Susan only has a life interest in the Plot and that interest does not entitle her to sale the Plot or any part thereof whether to Jared or any other person.

8. The upshot is that the application is merited. In the unique circumstances of this matter I find that it is only prayer 4 which ought to and is hereby issued.

Orders accordingly.

DELIVERED, DATED and SIGNED at MIGORI this 4th day of October, 2018.

A. C. MRIMA

JUDGE

Ruling delivered in open court and in the presence of: -

Mr. Roche OdhiamboCounsel instructed by the firm of Messrs. Odhiambo & Co. Advocates for the Applicants.

Mr. Kerario MarwaCounsel instructed by the firm of Messrs. Kerario Marwa & Co. Advocates for the Respondents.

Evelyne Nyauke –Court Assistant