[2019] KEHC 2633 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KISUMU

(CORAM: CHERERE-J)

SUCCESSION CAUSE NO. 734 OF 2015

IN THE MATTER OF THE ESTATE OPONDO OMBEWA (DECEASED)

BETWEEN

FRANCIS ABWAO..................................................OBJECTOR/APPLICANT

AND

JEREMIAH OWINO OPONDO..................... PETITIONER/RESPONDENT

JUDGMENT

Introduction

1. OPONDO OMBEWA (deceased)died sometimes on 18th July, 1972. His estate comprised of Land Parcel No. SOUTH GEM/ULAMBA/669 (suit property).

2. Letters of administration were issued on 28th October, 2015 to JEREMIAH OWINO OPONDO (Petitioner) who described herself as grandson to the deceased.

3. The grant was subsequently confirmed in favour of the Petitioner and a Certificate of Confirmation of Grant was issued on 28th October, 2016.

Application

4. By summons dated 21st November, 2016 filed on 22nd November, 2016, FRANCISABWAO (Objector) seeks revocation of the Letters of Administration issued to the Petitioner on 28. 10. 15 and confirmed in his favour on 28. 10. 16.

Objector’s’ Case

5. The Objector told court his late mother DOMTILA OKELLO ABWAO was the only child of the deceased. He stated that his mother begot two sons, himself and his late brother JECTONE LENYA ABWAO and that the Petitioner and all the other persons named in the chief’s letter dated 29. 06. 15 and filed in court on 10. 07. 15 are unknown to him and have no relationship with the deceased. He stated that his claim to the suit property was limited to his grandfather’s share.

6. DISMAS ORWA ABIEROstated that the deceased was brother to his father whereas the Petitioner was son of OPONDO OPIYO who is from his village. It was his evidence that he knew the Petitioner’s grandmother one Langó whom he denied was married to the deceased.

Petitioners’ Case

7. JEREMIAH OWINO OPONDO (the Petitioner) stated that he was son of OPONDO OPIYO. It was his evidence that his grandmother LANGÓ OPIYO and the deceased died before he was born but that he was informed that his grandmother Langó Opiyo had been inherited by the deceased and that that was the basis for his claim over the deceased’s estate. In cross-examination by Mr. Kowinoh, advocate for the Objector, Petitioner confirmed that he was aware that the deceased begot one daughter DOMTILA OKELLO ABWAO who is the Objector’s mother.

8. CHRISPIN YUGA OGOLLA confirmed that he was aware that the deceased begot one daughter DOMTILA OKELLO ABWAO who is the Objector’s mother. He stated that LANGÓ the Objector’s grandmother begot two sons OLUOCH OPIYO and OPONDO OPIYO the objector’s mother. He further stated that after the death of LANGÓ’s husband, she was inherited by the deceased and did not beget any children with him.

SUBMISSIONS BY THE PARTIES

Objector’s submissions

9. The objector holds the view that being the son of the deceased’s only daughter, he is entitled to deceased’s estate under the provisions of Section 39 of the Law of Succession Act Chapter 160 Laws of Kenya (the Act). He faulted the Petitioner for failing to disclose this fact when he obtained the grant and for falsely presenting himself as deceased’s grandson and for fraudulently submitting to court names of persons that were not related to the deceased.

Petitioner’s submissions

10. The Petitioner concedes that the Objector’s mother was the only child of the deceased. He also concedes that his grandmother LANGÓ had two sons OLUOCH OPIYO and OPONDO OPIYO by the time she was inherited by the deceased. He urged the court to order that both parties administer the estate which is jointly owned by his uncle OLUOCH OPIYO and Objector’s grandfather.

Analysis and Determination

11. I have considered the evidence on record and submissions filed on behalf of both parties.

12. Section 39 of the Law of Succession Act stipulate that the net intestate shall devolve to the kindred of the intestate in order of priority in the following terms: -

(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

(e)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.”

13. It is on record that the Objector’s mother DOMTILA OKELLO ABWAO was the only child of the deceased. The Objector is deceased’s grandson in the third degree of consanguinity and takes priority over the Petitioner who claims to be a step-grandson of the deceased.

14. The Petitioner concedes that he was aware that the Objector was son of deceased’s only daughter DOMTILA OKELLO ABWAO. This fact was neither disclosed at the time of filing this cause nor at the time of confirmation of the grant and this leads to the conclusion that the grant was obtained by the making of a false statement and by concealment from the court of something material to the case and ought to be revoked.

15. The suit property is registered in the joint names of the deceased and Petitioner’s uncle OLUOCH OPIYO. The evidence on record has not disclosed the immediate family members of Objector’s deceased brother JECTONE LENYA ABWAO and OLUOCH OPIYO to enable the court make a decision as to who ought to administer the estate of the late OPONDO OMBEWAand the late OLUOCH OPIYO.

Disposition

16. Consequently, I am satisfied that the Objector has made out a case for revocation of the grant issued to the Petitioner. As a result, it is hereby ordered THAT:

a) Letters of administration issued on 28th October, 2015 toJEREMIAH OWINO OPONDO(Petitioner) are hereby revoked.

b) The subsequent Certificate of Confirmation of Grant issued to the Petitioner on 28th October, 2016 is correspondingly revoked.

c) The Land Registrar, Siaya County is directed to cancel title deed in respect of Land Parcel No. SOUTH GEM/ULAMBA/669 issued to JEREMIAH OWINO OPONDO(Petitioner)and revert its ownership toOPONDO OMBEWA and OLUOCH OPIYO.

d) The Petitioner and the Objector are directed to file the family trees ofOLUOCH OPIYO and OPONDO OMBEWA respectively within 30 days from the date hereof

e) Each party shall bear its own costs of these objection proceedings

DELIVERED AND SIGNED AT KISUMU THIS 31ST DAY OF OCTOBER 2019

T. W. CHERERE

JUDGE

READ IN OPEN COURT IN THE PRESENCE OF-

Court Assistants - Amondi/Okodoi

For Petitioner/Respondent - N/A

For Objector/Applicant - Mr. Onyango hb for Mr. Kowinoh