[2022] KEHC 16364 (KLR)

In re Estate of William Amollo Mikwa (Deceased) (Succession Cause E002 of 2021) [2022] KEHC 16364 (KLR) (13 December 2022) (Ruling)

Neutral citation: [2022] KEHC 16364 (KLR)

Republic of Kenya

In the High Court at Migori

Succession Cause E002 of 2021

RPV Wendoh, J

December 13, 2022

IN THE MATTER OF THE ESTATE OF WILLIAM AMOLLO MIKWA (DECEASED)

Between

Damaris Malela (Suing as the administratix ad litem to the Estate of the Late Walter Amollo Otieno)

Applicant

and

Leakey Odiwor Amollo

Respondent

Ruling

1. The applicant, Damaris Malela (suing as the administratix to the estate of Walter Amollo Otieno) filed the instant application dated 15/3/2021 seeking the following orders: -a)Spent.b)Pending the hearing of this instant application inter parties and determination thereof together with summons for revocation of grant filed in this cause, a conservatory order do issue, restraining the respondent by themselves their agents and/or whomsoever be restrained from entering land Waware 285 or in any way whatsoever interfering with the said property.c)Pending the hearing inter parties of this application and the summons filed for revocation of grant and determination thereof, conservatory orders do issue restraining the respondent, his agents or whomsoever from selling, charging, mutating, transferring, leasing or dealing in any way whatsoever with all that is known as Waware 285. d)That pending the hearing and determination of this application together with the summons for revocation of grant, a conservatory order do issue restraining the respondent, their agents or whosever from interfering in any way whatsoever in the suit land Waware 285. e)That pending the hearing and determination of this summons together with the summons for revocation of grant herein, protection orders to issue against Leakey Oduor Amollo either in person, through his agents, assigns or whomsoever prohibiting their interference and intermeddling with the assets of the estate of the deceased William Amollo Mikwa.f)That the said Leakey Amollo be called to account for all proceeds collected from the sale of portions of all that land known as Waware 285. g)That the said Leakey Odour Amollo either in person or through his agents, assigns or whomsoever be restrained from intimidating, assaulting, threatening, trailing and/or attacking the beneficiaries and dependants of the estates of both Walter Otieno Amollo and William Amollo Mikwa.h)That this court be pleased to compel the registrar of titles to cancel and/or nullify any transfers of title made to the said Waware 285 pursuant to the grant issued to Charles Olilo Amollo as the same was never confirmed making such transfers a nullity.i)That this court be pleased to compel the registrar of titles to cancel the title made to Leakey Oduor Amollo as the same was irregular, null and void as it was premised on a grant that was yet to be confirmed contrary to section 82 b (ii) of the Law of Succession Act.j)That any other transfers, charge, sale ejusdem generis of the said Waware 285 by the aforesaid Leakey Amollo be declared a nullity as they were done illegally since he had no powers to sell, mutate or even transfer title of the same estate having never taken grant of letters of administration de bonis for his father’s estate, neither did he apply for confirmation of the grants issued to his father Charles Amollo Olilo.k)Any other orders that are deemed just and expedient that will meet the ends of justice including punishment of Leakey Amollo.

2. The application is supported by the affidavit of the applicant sworn on 15/3/2021 together with the annexures thereto. The applicant deponed that she is the administrator ad litem of the estate of Walter Amollo, a son the deceased William Amollo that the respondent has never taken out letters of administration intestate for the estate of Charles Olilo Amollo, neither has he taken out letters of administration de bonisfor the estate of William Amollo Mikwa to enable him administer the part remaining unadministered after the death of Charles Olilo Amollo; that having failed to take out letters for his father’s estate or letters de bonis for the estate of William Amollo Mikwa the respondent is an executor de son tort in the estate of William Amollo Mikwa and that of William Otieno Amollo; that the assets of the estate of the deceased William Amollo Mikwa have been interfered with by Leakey Oduor Amollo who has been illegally mutating and selling the aforesaid land no 285 Waware and charging the same to banks for loan facilities without accounting to anybody including this court; that the said Leakey has been selling portions of the land No Waware 285 as an intermeddler and the grant issued to his father Charles Olilo Amollo has never been confirmed thereby making such a sale illegal contrary to section 82 b (ii) of the Law of Succession Act.

3. It was further deponed that the said Leakey Amollo has been using the said income on his own and has refused to disclose or account to the rest of the beneficiaries to their detriment and that of the estate of the deceased; that nobody is allowed to meddle with or dispose of anything belonging to a deceased person in the absence of a court order or letter of administration; that if Leakey Amollo is allowed to continue inter meddling with the said property the estates of William Amollo Mikwa and Walter Otieno Amolo are likely to suffer irreparable damages and it is in the best interest of justice that the said Leakey Odiwour be restrained from dealing in any whatsoever inclusive of charging, mutating selling and/or leasing land No Waware 285 and other properties of the deceased and that he be made to account and reimburse the estate all the cash he has been collecting from the sale of the said parcels mutated from Waware 285.

4. The respondent opposed the application and filed a replying affidavit dated October 27, 2021. The respondent deposed that the application is not premised on any legal basis as the interest of the said applicant is not disclosed; that the applicant’s father filed a separate suit against him in Migori CMCC No 255 of 2018; that issues in dispute were already heard and determined and thus this application is res judicata; that the applicant has also made two other applications to have the aforesaid judgement be reviewed or set aside but the same have been dismissed; that land parcel No South Sakwa/Waware/285 solely belonged to his father Charles Olilo Amollo and the applicant’s father owned land parcel No South Sakwa/ Waware/286; that the respondent has never interfered with the applicant’s father parcel of land and the instant application is merely actuated by greed.

5. The applicant filed a supplementary affidavit sworn and dated 24/3/2022. The applicant reiterated the alleged intermeddling activities by the respondent. In response to the allegations of res judicata, the applicant deposed that the present application is in the nature of criminal proceedings contrary to section 45 of the Law of Succession Act; that the principle of res judicata cannot apply as section 193A of the Criminal Procedure Code provides that civil proceedings cannot operate as an estoppel in criminal actions; that the parties in the former suit at the Resident Magistrate’s Court and in this suit are not the same in that in the present suit, the applicant is suing the respondent as an administratix ad litem of the estate of Walter Otieno Omollo while in the Resident Magistrate’s Court suit, the then administrator, sued in his personal capacity; that it is trite law that when a person is suing as an administrator ad litem he is not the same party as when suing in his own capacity and/or as an individual for the purposes of res judicata.

6. It was further deponed that the former suit, the court sat as an ELC Court under both the ELC Act and the Magistrate’s Court Act dealing with disputes over land ownership between the estate of William Amollo Mikwa and the respondent but in the instant case, this court is sitting over a special jurisdiction under Article 45 and 47 of the Law of Succession Act which gives this court powers to deal and punish issues of intermeddling. Further, the applicant deposed that this application does not deal with the purported ownership of land parcel Waware 285 but the authority the respondent has to deal with the free estate of William Amollo Mikwa without undertaking probate proceedings; that the grant in Resident Magistrate 301 of 2002 were never confirmed since the respondent’s father, the said Charles Olilo died in May 2004.

7. The applicant contended that the respondent’s father Charles Olilo Amollo fraudulently obtained the letters of administration through concealment of material facts; that the transmission from William Amollo Mikwa to Charles Olilo Amollo was fraudulent since the letters were not confirmed at the time of death of Charles Olilo Amollo; that the said Charles held the land in trust for William Amollo Mikwa and on behalf of the beneficiaries of the estate of Charles Olilo Amollo as it was not his personal property; that the late Walter Otieno Amollo was the first registered owner of 286 and the same never belonged to the estate of William Amollo Mikwa as alleged or otherwise. The applicant urged the court to find the actions of the respondents illegal and allow the application as prayed.

8. On 27/5/2021, the court directed that the application be determined by way of written submissions. The applicant filed her submissions dated 13/4/2022 on 20/4/2022. The respondent opted to rely on his replying affidavit dated October 27, 2021.

9. In her submissions, the applicant reiterated the background of her case and the averments in her affidavit and supplementary affidavit. On whether the application is res judicata, the applicant submitted that unless specifically provided for under rule 63 of the Probate and Administration Rules, the Civil Procedure Act is inapplicable and section 7 of the Civil Procedure Act is not one of the provisions incorporated into the laws of succession.

10. On whether the applicant has locus standi, it was submitted that the applicant has locus standi by virtue of being the first born of Walter Otieno Omollo (deceased) who was a beneficiary in the estate of William Amollo Mikwa. The applicant further relied on the case of re: Estate Benson Maingi Mulwa (Deceased) (2021) eKLR where the court held that any person interested in the estate of a deceased person either as a beneficiary or otherwise is properly entitled to move to court and seek orders to preserve the same.

11. On whether the applicant has made a good case for issuance of preservatory orders, it was submitted that the said orders fall in the same class as Mareva injunctions and the principles are set forth inre: Estate of Simon Kamendero (2020) eKLR where the court granted preservatory orders pending the determination of summons for revocation of grant.

12. On whether the applicant has an arguable case, the applicant submitted that she has raised good grounds for revocation of grant including one that the letters of administration were issued by concealment of material facts by one Charles Olilo Amollo; that the letters issued to Charles Olilo have since become useless pursuant to the death of the sole administrator Charles Olilo Amollo in 2002. The applicant submitted that if the prayers are not granted, the summons will be rendered nugatory as the land Waware 285 which forms the substratum of the estate of William Amollo Mikwa will have been squandered.

13. On whether the actions of the respondent amounts to intermeddling, the applicant relied on several case laws to support her allegations of intermeddling and submitted that the transfer and/sale of Waware 285 was unlawful and a nullity. The applicant asked this court to find the respondent as intermeddling with the estate of William Amollo Mikwa (deceased) warranting the issuance of the orders sought. The applicant also asked the court to find that costs follow the event.

13. I have carefully considered the application dated 15/3/2021, the supporting affidavit, the applicant’s supplementary affidavit and their annexures thereto and the applicant’s submissions. I have also considered the respondent’s replying affidavit dated 27/3/2021. The issues for determination are:-a)Whether the applicant has locus standi to institute these proceedings.b)Whether these proceedings are res judicata.c)Whether there was intermeddling of the estated)Whether the court can nullify transfers made by the executor de son tort.e)Whether the application has fulfilled the threshold for granting of preservatory orders.

14. The applicant contended that she has locus standi by virtue of being the daughter of Walter Otieno Amollo (deceased) who was a son of William Amollo Mikwa (deceased). The applicant further stated that she obtained letters of administration ad litemas the administratix of the estate of Walter Otieno Amollo (deceased). To the contrary the respondent deposed that the applicant has nolocus standi to bring this application as she is neither a beneficiary nor a dependant of the estate of the deceased.

15. The suit property in which the applicant seeks preservation orders is Land Parcel No South Sakwa/Waware/285 (suit land). It is the applicant’s case that Charles Olilo Amollo, the father of the respondent, held the suit land in trust for all the other beneficiaries including her deceased father, Walter Otieno Amollo son of William Amollo Mikwa.

16. The applicant annexed and marked as “DM4” the green card showing the entries made to the suit land. The green card entries show that the suit land was first registered in the name of Amolo Mwika on 5/4/1975. It was then transferred to William Amollo Mwika on 25/5/2002; later on, to Charles Olilo Amollo on December 16, 2004 and then to Oduor Leakey Amolloh the respondent, on 7/5/2007. The green card entries show that the suit land has been subdivided into portions and sold to several purchasers and even charged to banks against loans.

17. From the averments by the applicant, her father Walter Otieno Amollo and Charles Olilo Amollo both deceased, were sons of William Amollo Mwika who is also deceased. This is further evidenced by the letter from the Chief of East Sakwa location dated 15/2/2022 which confirms that Walter Otieno Amollo and Charles Olilo Amollo were the only sons of Amollo Mwika (annexure “DM - 10”). The applicant is therefore a granddaughter to William Amollo Mwika and Charles Olilo Amollo is her uncle. The respondent is a son to Charles Olilo Amollo.

18. The applicant also deposed that her deceased father Walter Otieno Amollo is the owner of South Sakwa/Waware/286 having been the registered owner on 18/11/1976. There is a certificate of search dated 22/5/2018 (“DM-7”) which confirms this fact.

19. The applicant submitted that the manner in which the respondent’s deceased father obtained the letters of administration was fraudulent since he did not make material disclosure of all the facts. The applicant annexed “DM-11” being the copies of proceedings in succession proceedings in Migori 301 of 2002 for the estate of Amolo Mikwa.

20. In order to answer the question whether the applicant has locus standi to institute these proceedings, it is important to determine whether the applicant is a dependent or has beneficial interest in the estate of the deceased. A dependent is defined under the section 29 of the Law of Succession Act as:-(a)The wife or wives, or former wife or wives, and the children of the deceased whether or not maintained by the deceased immediately prior to his death;(b)Such of the deceased’s parents, step-parents, grand-parents, grandchildren, step-children, children whom the deceased had taken into his family as his own, brothers and sisters, and half-brothers and half-sisters, as were being maintained by the deceased immediately prior to his death; and(c)Where the deceased was a woman, her husband if he was being maintained by her immediately prior to the date of her death.

21. In the case of intestacy as this one, the estate of deceased persons devolve in priority as follows:-1)Where an intestate has left no surviving spouse or children, the net intestate estate shall devolve upon the kindred of the intestate in the following order of priority-(a)Father; or if dead(b)Mother; or if dead(c)Brothers and sisters, and any child or children of deceased brothers and sisters, in equal shares; or if none(d)Half-brothers and half-sisters and any child or children of deceased half-brothers and half- sisters, in equal shares; or if none the relatives who are in the nearest degree of consanguinity up to and including the sixth degree, in equal shares.2)Failing survival by any of the persons mentioned in paragraphs (a) to (e) of subsection (1), the net intestate estate shall devolve upon the state, and be paid into the consolidated fund.

22. The applicant alleges that her interest in the estate of the deceased is based on the fact that Charles Olilo Amollo held the land in trust for her deceased father. Therefore, the succession proceedings in Migori 301 of 2002 were a nullity since there was material non - disclosure of facts and in particular failure to disclose all the beneficiaries. A reading of the proceedings in Migori 301 of 2002 (DM-11) shows that on 24/6/2003, Charles Olilo Amollo was issued with grant of letters of administration intestate there being no objections lodged in the registry. When the said succession proceedings were taking place, the applicant’s father was alive. It is rather curious that the applicant’s father did not see the need then, to file objection proceedings.

23. Since the estate had already devolved from William Amollo Mikwa to Charles Olilo Amollo, the proper estate to sue for any claims to the suit land should be the estate of Charles Olilo Amollo as it is alleged that he was the one holding the suit land in trust for his brother. The first time the applicant’s father raised any objections to the suit land was in Migori CMCC No 255 of 2018 against the respondent. At that time, the suit land had already devolved from Charles Olilo Amollo to the respondent in the year 2007. The suit filed by the applicant’s father was dismissed. The SPM’s court held that Walter Otieno Amollo, the applicants father had not proved his interest in the suit land South Sakwa / Waware / 285 and that he already had plot 286 bequeathed to him.

24. From the documents on record, it seems that the applicant’s deceased father Walter Otieno already had his own parcel of land being South Sakwa/Waware/286 registered in his name on November 18, 1976. The land parcel South Sakwa/Waware/285 (suit land) was first registered in the name of Amolo Mikwa who was applicant’s grandfather. The suit land was registered in the name of Amolo Mikwa on 5/4/1975 the same year when the land belonging to the applicant’s father was registered in his name. The suit land thereafter devolved to the Walter Otieno and then respondent’s father Charles Olilo Amollo. There is no evidence to demonstrate that the suit land was ever held in trust for the applicant’s father. The applicant’s father was already allocated his parcel of land. If the applicant’s father believed that he was entitled to the said estate, he should have filed objection proceedings or in the alternative commenced succession proceedings at the time the father died on 5/12/1998.

25. The applicant’s family cannot now purport to be dependants and beneficiaries of the estate of Charles Olilo Amollo comprising of South Sakwa/Waware/285. In any case, the applicant is a niece of Charles Olilo Amollo and she ranks least in priority in making claims to the estate of the deceased as per section 39 of the Law of Succession Act unless she can demonstrate that she was being maintained by Charles Olilo Amollo during his lifetime. The applicant has not established a direct interest in the estate of the deceased herein.

26. It is this court’s finding that the applicant has not demonstrated that she has the necessary locus standi to make any claims to the estate of William Amollo Mikwa (deceased). The suit land had already devolved to Charles Olilo Amollo and the persons entitled to make any claims in the said estate are the wife of Charles Olilo Amollo and/or siblings of the respondent if they are alive, as they rank in higher priority as dependants to the estate of Charles Olilo Amollo.

27. The rest of the issues for determination fall by the way. The application dated 15/3/2021 is devoid of merit and the same is dismissed with costs to the respondent.

DATED, SIGNED AND DELIVERED AT MIGORI THIS 13TH DAY OF DECEMBER, 2022R. WENDOHJUDGERuling delivered in the presence of;Mr. Outa for the Applicant.No appearance for the Respondent.Nyauke Court Assistant.