[2022] KEHC 15383 (KLR)

In re the Estate of Severio Wafula Opwora alias Wafula Osore (Deceased) (Succession Cause 228 of 1986) [2022] KEHC 15383 (KLR) (14 November 2022) (Ruling)

Neutral citation: [2022] KEHC 15383 (KLR)

Republic of Kenya

In the High Court at Kakamega

Succession Cause 228 of 1986

PJO Otieno, J

November 14, 2022

IN THE MATTER OF THE ESTATE OF SEVERIO WAFULA OPWORA Alias WAFULA OSORE (DECEASED) BETWEEN HENRY OKATO OKULULA .................................................. PETITIONER VERSUS SOFIA SHIKUKU FICHAKA ...................................................OBJECTOR

Ruling

1. By her summons for revocation of grant filed in court on the October 22, 2019, the objector seeks revocation of grant issued to the petitioner on the grounds that the petitioner was not entitled to apply for the grant and did so and obtained the grant by employing a defective procedure, fraudulently and by making a false statement and concealing material relevant to the case; did so discretely and by taking undue advantage that the deceased only sired girls. To elucidate her grievances, she filed an affidavit in support with the summons and later a further affidavit. In both affidavits, the objector reiterated that the petitioner is not a child of the deceased who did not involve the family, widow and daughters of the deceased merely because they were female. The objector says that they her and her sisters, only came to know about the steps taken by the petitioner in the year 2010 when her mother died and the petitioner attempted to restrain them from burying her on the land that she lived on and knew to belong to the deceased, being S Wanga/mung’ang’a/155.

2. In the further affidavit, the objector contend that the petitioner colluded with the former chief of the area to disinherit the children of the deceased and concocted a letter alleging that the widow, who was unable to read nor write had consented to give the estate land to the petitioner and without noting that the deceased had daughters. It is then asserted that the widow was not assisted by the petitioner and that when she died, the petitioner restrained them from interring her remains on the land till the local administration intervened. There was then exhibited the grant, certificate of confirmation and two letters by the area chief as well as two death certificates with different baptismal names.

3. When served with the application for revocation of the grant, the petitioner filed a replying affidavit in which he termed the application as riddled with lies and falsehood, meant to mislead the court. He took the position that he was taking care of the deceased and his widow and that even after the deceased died he continued to take care of the widow while staying on the estate property during which stay a family meeting was held, attended by all including the objector, when it was agreed that he inherits the land. That it was the basis of that resolution of that family meeting that the widow authorized the letter dated September 22, 1986 to the deputy registrar and stating that the administrator was to be registered as proprietor of the estate property.

4. He clarifies that the letter by the chief and petition for grant did identify him as a nephew to the deceased and that he continued to assist the widow and the four daughters by among other things staying with their children who are now of age. He then says that after the grant was issued, resistance was initiated by one of the daughters called Lucia Matseshe Indeche Namayi in 1988 but was dismissed just like a claim to the land disputes tribunal was equally dismissed. He denied resisting the burial of the widow on the said land and asserted having accorded to the widow a decent burial and even conducted commemoration ceremony for the deceased and his widow hence he was the person given the death certificate of the said widow.

5. He blames the objection to be the scheme by third parties to strain the relationship between him, the objector and her siblings and that the summons is not only an afterthought but also res judicata. He then exhibited to court various documents including, the letter by the chief, his petition to court, affidavit by the deceased’s widow, proceedings taken before the court, ruling dismissing objection by Lucia Indeche and the death certificate for the deceased’s widow. Parties thereafter filed witness statements as well as lists and copies of documents but by directions by the court of June 29, 2022 the matter was agreed, by parties, not to demand viva voce evidence and was ordered to be heard by way of written submissions.

6. When the matter was mentioned to confirm filing of submissions on the August 1, 2022 only the petitioner had filed submissions while the objector had not. Even as I prepare this decision for delivery in the afternoon, the objector is yet to file submissions.

7. The court has however read the affidavits filed together with the exhibits in those affidavits as well as the submissions by the petitioner. That perusal isolate two issues for determination. The issues are whether in bringing the cause as he did, without disclosure of the objector and her sisters, as children of the deceased, the grant is amenable to be revoked, and whether upon revocation the objector be appointed the administrator.

8. It is not in doubt, but admitted, that while the petitioner is a nephew, the objector and her sisters are children of the deceased. A reading of part V of the Law of Succession Act reveal that the priority to administer and inherit the estate of a deceased is to the spouse and children. It is therefore the finding by this court that the rights of the objector rank in priority to those of the petitioner. In that ranking, the petitioner had the obligation to not list the objector and her sisters as beneficiaries but also to seek and obtain their consent as anticipated by section 66 as read with rule 7 (7) of theProbate and Administration Rules.

9. The petitioner failed to disclose that the deceased left behind children. Just like he did not show that the children of the deceased had renounced their rights or consent to his administration. That was a concealment of a material fact which then amounts to making an untrue statement. Coupled with the fact that upon seeking confirmation of the grant, he took the entire estate without regard to the rights of the children, he acted improperly and the grant cannot be left to stand for reasons that the petitioner has disinherited the children of the deceased. It is not an excuse that the children were female who he said got married. Children remain children, male or female, married or unmarried, sane or of unsound mind, minors or adults. This case reminisces the now discarded discriminative and oppressive patriarchy where girls were deemed strangers to their father upon getting married. It is not even for the parents and siblings of such girls to perpetuate that old practice among the African communities. It surely cannot be countenanced for a person who is clearly a stranger to the estate. In coming to the conclusion, I have been guided by the words of the Court of Appeal in Stephen Gitonga M’murithi –vs- Faith Ngira Muriithi [2015] eKLRthat:-'Section 38 enshrines the principle of equal distribution of the net intestate estate to the surviving children of the deceased irrespective of gender and whether married and comfortable in their marriage or unmarried.'

10. It is therefore the conclusion of the court that in presenting the petition and distributing the estate to himself without regard to the rights and interests of the four daughters of the deceased, there was clear violation of the law on who is entitled to inherit the property of the deceased. That was attained by failure to disclose the relationship between the objector and her sisters to the estate. For that non-disclosure leading to the obvious disinheritance and deprivation of property, the grant and the certificate of confirmation are hereby revoked. As a consequence of such revocation, anything done pursuant to the said grant and certificate of confirmation are hereby declared null and it is directed that the property of the estate, being E Wanga/mung’ang’a/155 be reverted, reinstated and registered in the name of the deceased.

11. Having been so revoked, the estate which has overstayed in court must now be administered in a manner that will push it towards closure of the administration. The court therefore appoints the objector, Sofia Shikuku Fichaka forthwith to be the administrator in place of the petitioner. The grant shall issue forthwith for the objector to file a summons for confirmation of grant within thirty (30) days and attend court on December 5, 2022, with all her siblings for the hearing of that application. No orders as to costs.

DATED, SIGNED AND DELIVERED IN OPEN COURT THIS 14TH DAY OF NOVEMBER 2022. PATRICK JO OTIENOJUDGEIn the presence of:No appearance for Akwala for the PetitionerNo appearance for the ObjectorCourt Assistant: Polycap