[2019] KEHC 12470 (KLR)
The court found that the applicants/objectors' allegations were uncontroverted, as the respondent failed to respond. The evidence established that the grant was obtained fraudulently by false statements and concealment of material facts, and that the respondent lacked locus standi. The court held that the conditions...
Source-derived case information.
- Citation
- [2019] KEHC 12470 (KLR)
- Parties
- Applicant: Yunis Apiyo Osewe; Applicant: Charles Ooro Osewe; Respondent: Maurice Odiwuor Deya
- Court
- High Court
- Court Station
- High Court at Homa Bay
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 12 of 2018
- Procedural Posture
- Succession Cause / Ruling on Summons for Revocation of Grant
- Outcome
- grant revoked; fresh grant to issue to applicants/objectors
- Legal Topics
- Revocation of Grant, Fraudulent Obtainment of Grant, Locus Standi in Succession, Concealment of Material Facts
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Yunis Apiyo Osewe
Applicant
Charles Ooro Osewe
Applicant
Maurice Odiwuor Deya
Respondent
Procedural Posture
Succession Cause / Ruling on Summons for Revocation of Grant
Legal Issues
- 1 Whether the grant of letters of administration intestate was obtained fraudulently by false statements or concealment of material facts.
- 2 Whether the petitioner/respondent had the requisite locus standi to institute the succession proceedings.
- 3 Whether the conditions for revocation or annulment of grant under Section 76 of the Law of Succession Act were satisfied.
Ratio Decidendi
The court found that the applicants/objectors' allegations were uncontroverted, as the respondent failed to respond. The evidence established that the grant was obtained fraudulently by false statements and concealment of material facts, and that the respondent lacked locus standi. The court held that the conditions for revocation or annulment of grant under Section 76 of the Law of Succession Act were satisfied. Consequently, the grant issued to the respondent was revoked, and any actions taken under it were declared null and void ab initio. The court ordered that a fresh grant be issued to the applicants/objectors, with confirmation to occur within six months or a shorter period as...
Court Disposition
grant revoked; fresh grant to issue to applicants/objectors
Orders
- The grant of letters of administration intestate issued to the respondent on 13th October 2013 is revoked.
- Anything done on the strength of the revoked grant is declared null and void ab initio.
Full Case Text
Judgment text and source record
27 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT HOMA BAY
SUCCESSION CAUSE NO.12 OF 2018
FORMERLY OYUGIS CM’S COURT SUCC. CAUSE NO.175 OF 2013
IN THE MATTER OF THE ESTATE OF: OSEWE NG’IELA NG’ELA.....DECEASED
AND
YUNIS APIYO OSEWE......................................................1ST OBJECTOR/APPLICANT
CHARLES OORO OSEWE...............................................2ND OBJECTOR/APPLICANT
VERSUS
MAURICE ODIWUOR DEYA.............................................PETITIONER/RESPODENT
RULING
[1]Basically, the application vide summons for revocation and/or annulment of grant of letters of administration intestate issued to the petitioner/respondent,Maurice Odiwuor Deya, by the magistrate’s court at Oyugis on the 13th October 2013, is grounded on the main allegation by the applicants/objectors,Yunis Apiyo Osewe and Charles Ooro Osewe, that the grant was obtained fraudulently by means of
making false statements and concealing material facts. Other allegations in the summons are more or less peripheral but include a serious allegation that the petitioner was not seized of the requisite “locus-standi” to institute the impugned succession proceedings.
All the allegations are fortified by the objector’s averments in the supporting affidavit dated 3rd July 2018.
There was no response from the respondent in the form of a replying affidavit and/or grounds of opposition.
Therefore, the application was uncontroverted thereby implying that the allegations made by the objectors against the respondent are essentially true allegations of fact upon which the court may exercise discretion in favour of the objectors.
[2]Under Section 76 (a) (b) and (c) of the Law of Succession Act, a grant of representation may be revoked by the court at any time if it is satisfied that it was obtained in proceedings which were defective in substance or was obtained fraudulently by the making of a false statement or by the concealment from the court of something material tothe case or was obtained by means of an untrue allegation of a fact essential in point of law to justify the grant notwithstanding that the allegation was made in ignorance or inadvertently.
The undisputed allegations made by the objectors against the respondent clearly discharges and satisfies the aforementioned conditions for revocation or annulment of grant of representation.
[3]In the circumstances, the impugned grant issued to the petitioner/
respondent on 13th October 2013, respecting the estate of the late Osewe Ngiela Ngiela (deceased), be and is hereby revoked and anything done on its strength was ”null and void” “ab-initio” and remains so to date such that the name of the deceased subsists as the proprietor of his estate comprising of the parcels of land specifically and clearly identified in paragraph 15 of the objectors’ supporting affidavit dated 3rd July 2018.
A fresh grant shall forthwith issue to the two applicants/objectors and may be confirmed within the next six (6) months from this date hereof or any shorter period that the parties may deem fit subject to them agreeing on the mode of distribution of the estate to all the proper andlawful beneficiaries of the estate among the three houses of the deceased.
Ordered accordingly.
J.R. KARANJAH
JUDGE
27. 11. 2019
[Delivered and dated this 27th day of November, 2019]