[2019] KEHC 5453 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT HOMA BAY

SUCCESSION CAUSE NO.14 OF 2018

Formerly HC Homa Bay Succession Cause No.787 of 2014

IN THE MATTER OF THE ESTATE OF:

ZABLON OKECH ABURA ....................DECEASED

AND

JOSEPH MANYALA OKECH.............. OBJECTOR

VERSUS

SAMWEL OTIENO OKECH.............. PETITIONER

RULING

[1] JOSEPH MANYALA OKECH (applicant/objector) took out the summons for revocation of grant dated 13th August 2018, seeking orders that the grant of letters of administration intestate issued on 3rd March 2016 to SAMWEL OTIENO OKECH (respondent/petitioner) be revoked and a fresh grant be issued to him (applicant) on grounds that the grant was obtained by concealment of material facts regarding the true heirs of the estate of the deceased, ZABLON OKECH ABURA, and also by means of untrue allegations of facts which were relied upon by the court for it to issue and confirm the grant.

[2]In the supporting affidavit dated 13th August 2018 the applicant gives the reasons for the application by averring that the deceased was survived by his three sons who included himself (applicant) and his two brothers, the respondent and one Zadock Adek Okech. That, the deceased had two wives, the first one being Sarah Onyango, and the second one Elsa Arwa and that during his life time, the deceased divided his parcel of land No. Kabuoch/Kachieng/545, and erected his homesteads on each portion. That, the portion No.545 was allocated to the second house of the deceased but registered in his name while the other portion was allocated to the first house and registered solely in the name of the respondent as the sole beneficiary.

[3]The applicant went on to aver that the respondent obtained the grant without consulting all beneficiaries including himself (applicant) and in the process included non-beneficiaries of the estate. That the chief’s letter presented to the court erroneously indicated a total of five beneficiaries whereas the only true beneficiaries were the applicant and their brother Zadok Adek Okech. That, contrary to the directions given by the court, the respondent alienated the estate property into six unequal portions.

It is for all the foregoing reasons that the applicant now seeks an order to revoke the grant.

[4]In opposing the application, the respondent averred in his replying affidavit dated 11th February 2018, that the deceased was survived by four sons who included himself, the applicant, one Moses Ochieng Okumu and one George Odhiambo. That one Hellen Auma Oluoch, was the surviving daughter-in-law of the deceased and together with the four sons of the deceased they consented and allowed the respondent to petition for the disputed grant vide Homa Bay Succession Case NO.787 of 2014. That, the family agreed to equally divide the estate property comprising land parcel No. Kabuoch/Kachieng/545 among the beneficiaries. Consequently, the grant was confirmed on 3rd March 2016.

The respondent further averred that the deceased’s said daughter-in-law and himself processed their own titles and have been living peacefully with all the other beneficiaries save the applicant who seeks to have for himself the portion of the estate property awarded to the deceased’s daughter-in-law (wife of the deceased’s departed son) on the basis that she is childless. The respondent contended that this application is brought by the applicant in bad faith.

[5]The hearing of the application proceeded by way of affidavit evidence and written submissions.

The firm of Peres Odoyo & Co. Advocates, filed their submissions on behalf of the respondent on 27th February 2018, while the firm of Odero Nyakwana & Co. Advocates filed theirs on behalf of the objector/applicant on 26th June 2018.

From the evidence and submissions, the basic issue arising for determination is whether the respondent in applying for the disputed grant concealed material facts and made false representations in relation to the deceased’s heirs and beneficiaries of his estate.

Section 76 of the Law of Succession Actstipulates the circumstances under which a grant may be revoked.

Under Sub-Section (b) of the provision, a grant may be revoked if it was obtained fraudulently by the making of a false statement or by the concealment from the court of something material to the case.

It is apparent that this application is made on the basis of the said provision.

[6]It was therefore incumbent for the applicant to prove against the respondent the alleged elements of fraud and concealment of material facts with regard to the beneficiaries of the estate.

A beneficiary is a person who benefits from the estate of a deceased by virtue of kinship or family relationship with the deceased. However, non-family members may claim a beneficial interest in the estate property if they were dependants of the deceased or if they purchased part of the property during the lifetime of the deceased.

In making his application for the disputed grant and later having it confirmed by the court, the respondent as per the certificate of

confirmation of grant listed himself, the applicant, their brothers Moses Ochieng Okumu and George Odhiambo as well as their sister-in-law as the beneficiaries who were to equally benefit from the only estate property i.e. NO. Kabuoch/Kachieng/545.

[7]Even the chief’s letter dated 25th November 2014, annexed to the applicant’s own affidavit alludes to the same beneficiaries as those mentioned by the respondent and further goes on to show that the respondent, as the eldest son of the deceased, was appointed by all the beneficiaries to petition for the disputed grant and that the deceased had two wives, Sarah and Elsa, who are also deceased meaning that the named beneficiaries were the actual and true beneficiaries of the estate of the deceased as at the time the disputed grant was obtained by the respondent.

[8]The applicant alleged that the deceased was survived by three sons who are the actual beneficiaries of the estate property. These included himself, the respondent and a brother of theirs called Zadock Adek Okech. He thus implied the other beneficiaries named by the respondent and in the aforementioned chief’s letter are not actual beneficiaries of the estate but mere intruders. He again alleged that the actual and true beneficiaries of the estate were only himself and his alleged brother Zadock Adek Okech, who did not depose an affidavit in support of the fact. Most interestingly, the applicant now purports to exclude the respondent as a beneficiary and infact, appears to disown him as his brother. In so doing and in an attempt to establish that the beneficiaries listed by the respondent are false, he alluded to a second chief’s letter which is said to be marked annexture “JMO–2” but which is not annexed to his supporting affidavit and must therefore be deemed to be non-existent for purpose of countering the initial letter marked “JMO –1”.

[9]In paragraph five (5) of the supporting affidavit, the applicant implies that the deceased had one big parcel of land which he sub-divided into two separate portions with one portion going to his first house and the other going to the second house. That parcel No. Kabuoch/Kachieng/

545 was actually the share of the second house and was registered in the name of the deceased while the other unnamed parcel was the share ofthe first house and was solely registered in the name of the respondent.

What the applicant is saying is that the respondent is not entitled to parcel No.545 as it was reserved for the second house of the deceased and was registered in the name of the deceased. That, the respondent and indeed the other beneficiaries named by him save the applicant are not entitled to parcel No.545 but the unnamed parcel reserved for the first house of the deceased and which was registered in the name of the respondent.

[10]However, no proof was forthcoming from the applicant with regard to the aforestated allegations. He did not provide evidence to counter and discredit the list of beneficiaries provided by the respondent for purposes of obtaining the grant and having it confirmed.

Neither, did the applicant provide any evidence that parcel No.545 was a division of a larger portion reserved for the second house. He also provided no evidence to confirm that the deceased during his lifetime divided his portion of land into two. It would therefore follow that the only property which belonged to the deceased and which was therefore available for distribution to the beneficiaries was the material parcelNo.545 and not any other parcels.

It would also follow that the allegations of fraud and concealment of material facts made by the applicant against the respondent are just but mere allegations without any force of facts and law.

[11]Ultimately, it is the finding of this court that the present application is wanting in merit and proof. It is therefore dismissed with each party bearing their own costs.

Ordered accordingly.

J.R. KARANJAH

JUDGE

04. 07. 2019

[Read and signed this 4th day of July, 2019]