[2022] KEHC 14891 (KLR)

In re Estate of Washington George (Deceased) (Succession Appeal 5 of 2021) [2022] KEHC 14891 (KLR) (7 November 2022) (Judgment)

Neutral citation: [2022] KEHC 14891 (KLR)

Republic of Kenya

In the High Court at Kisumu

Succession Appeal 5 of 2021

WA Okwany, J

November 7, 2022

IN THE MATTER OF THE ESTATE OF WASHINGTON GEORGE (DECEASED)

Between

Carolyne Akoth Oduol

Appellant

and

Rochalt William Ongonga

1st Respondent

Sherly Stellar Ongonga

2nd Respondent

Philemon E Otieno

3rd Respondent

(Being a first appeal from the Decision, Judgment/decree, Ruling And Orders Of Hon. C. N. C Oruo, Senior Resident Magistrate Delivered On 18th May 2021 In Maseno Principal Magistrate’s Court Succession Cause No. 20 Of 2020)

Judgment

Background 1. The deceased herein, Washington George Arowo Ongonga died intestate on August 1, 2019. The deceased was married to one Grace Atieno Yande who pre-deceased him having died on November 9, 2013. There were four issues of the said marriage namely:- Rochalt William Ongo’nga

Sherl Stellar Ongonga

Xavier Sheldon Omondi

Junior Shonar Victor.

2. The petitioners are the son, daughter and brother of the deceased respectively. On or about April 14, 2020, petitioners applied for grant of letters of administration (intestate) of his estate.

3. The record of appeal does not indicate if grant of letters of administration was issued to the petitioners.

4. Concurrently with the petition for grant of letters of administration intestate, the petitioners filed a notice of motion application dated April 14, 2020, under certificate of urgency, seeking orders to restrain the respondent/appellant herein, Carolyne Akoth Oduol or her agents from intermeddling with the estate of the deceased pending the hearing and determination of the succession cause.

5. On April 16, 2020, the trial court considered the said application, ex parte and granted the injunctive orders sought pending the inter partes hearing of the application.

6. The respondent/appellant opposed the application through her replying affidavit filed on May 19, 2020, wherein she stated that she is the widow of the deceased and the co-wife of the late Grace Atieno Yande having married the deceased on January 17, 2017 under Luo customary law. She averred that she also had four children with the deceased namely:- Joebidden Ochieng

Mireile Anne.

Joy Melvin

Becky Shantelle.

7. She further averred that she was duly issued with the death certificate and registered as the deceased’s next of kin. She denied the allegation that she interfered or intermeddled with the estate of the deceased.

8. She attached several documents to her affidavit as exhibits, namely;- The birth certificates of the four children she allegedly had with the deceased.

A letter from the local assistant chief confirming that she lived with the deceased. Radio station death announcement.

Marriage affidavit.

Siaya teachers burial benevolent fund membership card.

Proceedings of arbitration.

Birth certificates.

9. On April 28, 2020, the trial court ‘confirmed’ the interim orders issued April 16, 2020, in terms of prayer No 2 thereof on the basis that there was no response to the application. The court thereafter listed the application for hearing on May 19, 2020.

10. During the court appearance on May 19, 2020, the respondent informed the court that she had filed her response to the application but the petitioners advocate objected to the late filing of the response while arguing that the application was already spent.

11. The court then ruled that the application dated April 14, 2020 was already spent and noted that the only avenue available to the respondent was to either appeal to the High Court or seek a review of the orders of the April 28, 2020.

12. On June 4, 2020, Mr Odhiambo advocate for the respondent informed the court that he had filed a notice of motion application dated May 28, 2020, the court then granted the applicant leave to file a reply to the said application.

13. When the respondents application came for hearing on July 7, 2020, Mr Odhiambo sought leave to file a further affidavit after which the court issued directions on the hearing of the outstanding applications as follows: -i.The petition together with the replying affidavit be deemed to be the plaint.ii.The objection for (sic) the petition together with the further affidavit (for which leave has been granted) to the respondent be deemed to be the defence.iii.The interested party to be cross examined based on the supporting affidavit of July 6, 2020. iv.Status quo in this matter to prevail.v.Parties to comply with order 11 of the Civil Procedure Rules. File and serve their list of documents, witness statements if need be, before the hearing date.vi.Hearing by consent of both parties be on August 11, 2020.

14. The matter then proceeded for hearing and both parties presented their respective testimonies. At the end of the trial, the trial magistrate rendered a judgment in which he made the following orders: -(a)That the letter dated October 20, 2019 drawn by Julius Ouma Okuku and filed in court shall be used for purposes of succession of the estate of Washingtone George Arowo Ongong’a (deceased) and shall form part of the court’s record.(b)That Carolyne Akoth Oduolthe respondent/objector herein was not married to Washingtone George Arowo Ongong’a the (deceased) and therefore is not a wife for purposes of succession of his estate.(c)That the beneficiaries to the estate of Washingtone George Arowo William Ongong’a(deceased) are:-1. Rochalt William Ongong’a2. Sherl Stellar Ongong’a3. Xavier Sheldon Omondi4. Junior Shonar Victor(d)That Carolyne Akoth Oduolthe respondent/objector herein is hereby ordered to pay a fine of Kshs 10,000/= in default 1-year imprisonment for intermeddling in the estate of Washingtone George Arowo Ongong’a(deceased).(e)That the DCI Kisumu West & Sewe Sub-counties are hereby ordered to investigate into the circumstances into which the birth certificates of the persons mentioned below were obtained and where possible take necessary action.1. Joy Melvin Arowo2. Joe Bidden Ochieng3. Mireille Anne Anyango4. Becky Chantel Ngwono(f)That the costs of this litigation will be in the cause.

Appeal 15. The judgment gave rise to the instant appeal in which the appellant who was the objector/respondent in the lower court listed the following grounds of appeal.1. The learned magistrate erred in law by dismissing the appellant’s objection in total disregard of the evidence that was adduced before him.2. The learned trial magistrate erred in the and in fact by failing to appreciate the totality of evidence and exhibits produced in the proceedings thus arriving at a totally erroneous conclusion.3. The learned trial magistrate erred in law and fact by failing to appreciate the evidence on record by holding that the appellant did not prove that she was the wife of the deceased whereas overwhelming and direct evidence was adduced to confirm that the appellant and the deceased were married under Luo customary law, which marriage was further consummated in church.4. The learned magistrate was openly biased against the appellant by holing that she was guilty of inter-meddling with the deceased property and proceeded to fine her Kshs 10,000/= in default 12 months’ imprisonment on the spot without evidence to prove that, after the judgement without giving the appellant a chance to defend herself and when the issue did not arise during the objection proceedings and again by recommending criminal investigations against the appellant.5. The learned magistrate otherwise erred in his ruling by failing to recognize the facts that his actions would render the appellant and other beneficiaries, especially the children of the marriage a right to the father’s name and completely disinherits them.6. The learned magistrate otherwise erred in law and fact by failing to interrogate the evidence presented to him and deliberately trashing the evidence adduced by the appellant and her witnesses.7. The learned magistrate erred in law and fact by failing to consider the appellants objections to making a grant and her reasons thereof.

16. Parties filed their respective written submissions to the appeal which I have considered.

17. Before I embark on considering the merits of the appeal, I am minded to consider if the trial court adopted the correct procedure in arriving at the verdict that is the subject of this appeal. From the background of the case and the above summary of the proceedings that were taken before the trial court, it is clear to me that what started as a petition for grant of letters of administration under theLaw of Succession Act mutated into an ordinary civil suit governed by the provisions of theCivil Procedure Act and Rules. The issue of concern to this court is whether, the trial court could, either on its own motion or even on the purported consent of the parties, transform the succession cause into an ordinary civil case, take evidence and render a verdict as he did.

18. Inre Estate of the Late Kaburachi Peter (Deceased)[2021] eKLR, the court held that: -“As a rule, in proceedings under the Law of Succession Act, provisions of the Civil Procedure Act and Civil Procedure Rule do not apply as the Law of Succession Act is sui generis with its own unique and special procedures which regulate proceedings in probate courts. The only provisions of the Civil Procedure Rules which apply are provided under rule 63 of the Probate and Administration Rules. (See Josephine Wambui Wanyoike -vs- Margaret Wanjiru Kamau & another [2013] eKLR). Under rule 63 the said orders are orders V, X, X1, XV, XV111, XXV, XL1V, and XL1X and which orders in the amended Civil Procedure Rules 2010 are orders dealing with service of summons, interrogatories, discoveries, inspection, consolidation of suits, summoning and attendance of witnesses, affidavits, review and computation of time.As such, it is clear that stay of execution is not one of the reliefs which can be granted by a probate court.”

19. Inre Estate of Gachuiya Kahora (Deceased) [2021] eKLR the court held that: -“First, proceedings in succession causes are governed by the Law of Succession Act and the Probate and Administration Rules made thereunder. Rule 63 of the Probate and Administration Rules provides as follows: -“1. Save as in the Act or in these Rules otherwise provided and subject to any order of the court or a registrar in any particular case for reasons to be recorded, the following provision of the Civil Procedure Rules, namely order 5 rule 2 to 34 and orders 11, 16, 19, 26, 40, 45 and 50 together with the High Court (Practice and Procedure) Rules shall apply so far as relevant to proceedings under these Rules…2. ………”26. From the forgoing, it is clear that the above rule does not apply either orders 9, 12 and 51 to succession proceedings. The applicants have evidently no satisfactory answer or justification for invoking order 12 and 51 of the Civil Procedure Rule in their so-called notice of motion. The Law of Succession Act and Rules made thereunder do not envisage the filing of notices of motion in succession matters. Rule 59 of the Probate and Administration Rules makes that clear. Sub-rule 1 provides that save where otherwise provided in the Rules, every application to the court “shall be brought in the form of a petition, caveat or summons, as may be appropriate.” [Emphasis added].

20. In the present case, I note that the applications that snowballed into a fully-fledged hearing were brought by way of notice of motion.

21. Taking a cue from the dictum of the above cited cases, I find that the proceedings that culminated in the judgment that is the subject of this appeal started on a wrong footing and are therefore untenable.

22. My above finding notwithstanding and even assuming for argument’s sake, that the trial court had powers to convert the succession cause into an ordinary civil suit, I would still find that the respondents herein did not have thelocus standi to institute, sustain or proceed with the suit as the plaintiffs. I say so because the respondents had not been issued with the grant of letters of administration as at the time they purported to pursue the case against the appellant herein on behalf of the deceased’s estate.

23. Furthermore, the appellant could not be deemed to be an objector in the said proceedings for the same reason that the grant had not been issued to the respondents at the time so as to necessitate the institution of objection proceedings.

24. I find that the procedure adopted by the trial court, to convert the petition for grant of letters of administration into a plaint is unknown in law. It is unfortunate that the trial magistrate entered into unchartered waters and came up with a verdict that may have the far-reaching effect of disinheriting some dependents of the deceased from benefitting from their rightful shares to the estate.

25. For the reasons that I have stated in this judgment, I do not find it necessary to venture into determining the merits of the appeal. I find that the proceedings and subsequent judgment before the trial court were a non-starter and therefore null and void ab initio. I therefore allow the instant appeal and set aside the judgment and orders of the trial court. I direct that the succession cause pending before the lower court proceeds before a different magistrate other than Hon CNC Oruo. I make no orders as to costs.

DATED, SIGNED AND DELIVERED AT KISUMU THIS 7TH DAY OF NOVEMBER 2022W. A. OKWANYJUDGEIn the presence of:Court Assistant – OjalaMs Obware for Omondi M. M. for the AppellantMs Akinyi for the Respondent