[2017] KEHC 10126 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT HOMA BAY

SUCCESSION CAUSE NO.185 OF 2014

FORMERLY NDHIWA SUCC. CAUSE NO.36 OF 2014

IN THE MATTER OF THE ESTATE OF:

WILLIAM OGALO NYANDONG (DECEASED)

AND

MARICUS MUNDA OGENGA............................PLAINTIFF

VERSUS

DORINA AKINYI OGALO................................DEFENDANT

JUDGMENT

1. When WILLIAM OGALO NYANGONG died intestate in the year 2012, he was survived by his widow DORINA ATIENO OGALO and his sons:-

ELISHA OTIENO OGALO

ERICK OCHIENG OGALO

FREDRICK ONYANGO OGALO

2. However the family failed to take out grant of letters of administration, despite a citation being filed by MARICUS MUNDA OGENGAwho had purportedly purchased 6 acres of land from the deceased.

3. Subsequently MARICUS MUNDAwas allowed to file for and obtained grant of letters of administration on 8th December 2015. MARICUS then applied for confirmation of the grant in his favour and proposed that the asset being KACHOLA/KAJWANG/KADWET/1341measuring 6 acres be shared equally between MARICUS MUNDA OGENGAand BENTA ANYANGO. However this proposal was opposed by DORINA AKINYI OGALO who told the court:-

“I know I should give him a portion of the land but I also must retain a part because I have children and that is the only portion of land I have. I know Benta Anyango, she is my friend, she should take 2 acres and I remain with 4 acres. Maricus cannot take three acres as I have married children and that is my parcel my husband left for me.”

4. When the court directed Dorinah to file an affidavit of protest she later came to court, two months later to say:-

“We had family discussions and reached an agreement on distribution. I will give Maricus 6 acres of land.”

5. However this now took a new twist as her son ERICK OCHIENG OGALO was present to support this, and the other children were not present. Subsequently when all the OGALO brood appeared in court WINNIE AWUOR, EVERLINE ADHIAMBO, ELIZABETH ANYANGO, FREDRIC ONYANGO and ERICK OCHIENG opposed the proposed mode of distribution and they filed an affidavit of protest saying they were not aware that their father had sold 6 acres of the said parcel to MARICUS MUNDA OGENGA. It was their contention that their father did not own any other piece of land and the entire family depended on that parcel for their livelihood. It was their contention that they are all legally entitled to a share of their father’s estate although they did not propose how it should be distributed.

6. The matter proceeded to hearing of viva voce evidence where Mr. Osoro represented the petitioner/defendant.

7. WINNIE AWUOR OGALO(PW1) testified that her late father WILLIAM OGALO NYANDONGhad two wives namely DORINA AKINYI OGALOand MONICA ACHIENG OGALO. DORINA is the 1st wife and mother to WINNIE. PW1 stated that she was opposed to the mode of distribution as her late father left only 6 acres of land yet they had no other parcel to live on or utilize. She suggested that the petitioner ought to be given 3 acres of land and the family retains 3 acres saying:-

“We would be willing to refund him the money he paid our father at the time he said he bought the land at Kshs.24,000/= so we could refund him Kshs.12,000/= for the three acres.

8. On cross examination PW1 conceded that the documents showed petitioner had bought land from her father, but as far as she is concerned she has not seen any house constructed therein.

9. Upon being shown the sale agreement dated 27/02/1995 entered between her late father and the petitioner in respect of 6 acres of land at Kshs.24,000/=, signed by both parties and witnessed by her mother DORINA and MONICA, PW1 stated:-

“Maybe our mother consented to sign due to pressure from my father …”

10. She also conceded that despite her insistence that their father only had 6 acres of land, the said document showed it was 4. 89 Hectares (which means it is actually larger than 6 acres). Indeed she conducted a search and according to her, the land parcel NO. KANYAMWA/KAJWANG/KOCHOLA KADWET/1341 measures 1. 06 acres.

11. Upon being shown a letter by the chief dated 26/03/17 detailing that parcels NO.KOCHOLA/KANYAMWA/1407, 1640, 1340and 1342 belonged to MICHEAL OCHIENG NYANDONGfather of WILLIAM OGALO NYANDONG, and that WILLIAM’s family stays on parcel No.1407, she conceded that indeed it is true that parcel No.1341 is not the only land the late WILLIAM’s family have. In the same breath she then stated:-

“My family stays on a different parcel from the respondent. My father had only one parcel of land No.1341 which is not where my family stays. … Yes I agree there was a sale between my father and the applicant.”

12. EVERLINE ADHIAMBO – another of the deceased’s daughter opted not to testify saying she would rely on the evidence given by PW1.

13. FREDRICK ONYANGO OGALO(PW2) a son to the deceased conceded that their father did sell the parcel in question to the petitioner and stated that both his mother DORINA and his step mother MONICA had agreed to give MARICUS OGENGO the said parcel.

“However when we came to court, my youngest sister WINNIE begun inciting others to change their stand and I was surprised. Winnie convinced my other sisters to go against what the family had agreed that our mother transfers the land to Maricus. Since I was out-numbered, I joined my sisters in objecting.”

14. PW2 was categorical even on cross examination that the parcel in question should be given to the petitioner MARICUS, saying Winnie just wanted to derail the matter. He stated:-

“I know the truth, so I decided to come and tell the truth.”

He informed the court on re-examination by Everline:-

“We had all agreed but in court I was shocked to see a change in stand. I am tired of pretending, peddling lies when I know the truth about the land. If you are interested in pursuing a portion that is up to you but I am not interested.”

15. MARICUS MUNDA OGENGA (DW1) told this court that they bought the land and lived on it until 2014 when members of the deceased’s family got court orders for them to vacate. He realized they had obtained the orders on pretext that it was their father’s land. He appealed against the eviction order and obtained restraining orders. He then filed a citation and subsequently was allowed to petition for and obtain grant of letters of administering the estate of the deceased after the deceased’s family rejected every attempt at a negotiation.

16. He explained that when the cause came up for confirmation, the deceased’s family members demanded a token from him, and he gave WINNIE Kshs.10,000/=. Yet when they came to court he was shocked to see WINNIE raise her hand in protest against the confirmation. He stated:-

“The Ogalos keep breaking hot and cold. At home they always pursue us to obtain title to the land, then when we come to court they object.”

17. He denied suggestions by the deceased’s son ERICK that he had rented the land, saying it was purchased without any conditions, so if the deceased sold the larger part and left his family with a small portion, it’s not for him to explain.

18. MONICA ACHIENG OGALO (DW2) the deceased’s second wife was categorical that her late husband sold the land to the petitioner and she witnessed the same. She termed the objection by her step children as baseless and stated that the petitioner paid the full purchase price and ought to be given the land.

19. The Ogalos do not deny that their late father sold 6 acres of land parcel NO. KACHOLA/KAJWANG/KADWET/1341 to the petitioner. They do not even dispute that he paid the full purchase price. Their grievance seems to be that the portion sold was rather big – and they resorted to all manner of harassments to deprive the petitioner of what rightly belonged to him, as demonstrated by the sale agreement, and evidence by FREDRICK ONYANGO OGALO. Indeed their mother DORINA just appeared helpless in the fact of a very militant and delinquent daughter WINNIE who was obviously the one steering the harassment.

20. There is really no basis for the objection filed regarding the mode of distribution, the petitioner was simply completing the process of what was his since the Ogalo had even refused to petition for grant of letters of administration.

21. Infact WINNIE while acknowledging that their father indeed sold the land to the petitioner now wanted to rescind the contract and refund part of the purchase price. She was never party to that contract and has no locus to rescind it.

22. I am persuaded that these objection proceedings were totally unnecessary and were an abuse of the court process – the same being totally unmerited. The objection is dismissed and the grant is confirmed in favour of the petitioner with the mode of distribution being as proposed in the supporting affidavit dated 03rd JUNE 2016.

Delivered and dated this 3rd day of November, 2017 at Homa Bay.

H.A. OMONDI

JUDGE