[2012] KEHC 2588 (KLR)
The court held that, although allegations of misappropriation against James Mukhaye Oyalo were unproven, excluding him from administration would only aggravate family acrimony. Including him would facilitate the identification and consolidation of the estate, as he possessed unique knowledge from his long...
Source-derived case information.
- Citation
- [2012] KEHC 2588 (KLR)
- Parties
- Respondent: Julius Ombisi; Respondent: Andrew Okwaro; Respondent: Walter Oyalo; Applicant: James Mukhaye Oyalo; Applicant: Joel Mukhaye; Applicant: H. Oyalo
- Court
- High Court
- Court Station
- High Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 461 of 2009
- Procedural Posture
- Succession Cause / Ruling on Appointment of Administrators
- Outcome
- Grant of letters of administration issued to James Mukhaye Oyalo, Julius Ombisi, Andrew Okwako, and Walter Oyalo.
- Judges
- SP Ouko
- Legal Topics
- Appointment of Administrators, Law of Succession Act, Priority of Beneficiaries, Estate Administration
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Julius Ombisi
Respondent
Andrew Okwaro
Respondent
Walter Oyalo
Respondent
James Mukhaye Oyalo
Applicant
Joel Mukhaye
Applicant
H. Oyalo
Applicant
Procedural Posture
Succession Cause / Ruling on Appointment of Administrators
Legal Issues
- 1 Who should be appointed as administrators of the estate of the late Sheldon Oyaro Mukhaye.
- 2 Whether allegations of misappropriation against James Mukhaye Oyalo are sufficient to exclude him from administration.
- 3 How to balance competing interests among the deceased's children in the appointment of administrators.
Ratio Decidendi
The court held that, although allegations of misappropriation against James Mukhaye Oyalo were unproven, excluding him from administration would only aggravate family acrimony. Including him would facilitate the identification and consolidation of the estate, as he possessed unique knowledge from his long involvement. The court exercised its discretion under Section 66 of the Law of Succession Act to appoint administrators representing the various houses of the deceased, ensuring all interests were considered. The court also noted the statutory limit of four administrators and selected James Mukhaye Oyalo, Julius Ombisi, Andrew Okwako, and Walter Oyalo as administrators, balancing...
Court Disposition
Grant of letters of administration issued to James Mukhaye Oyalo, Julius Ombisi, Andrew Okwako, and Walter Oyalo.
Orders
- A grant of letters of administration shall be issued to James Mukhaye Oyalo, Julius Ombisi, Andrew Okwako, and Walter Oyalo.
Full Case Text
Judgment text and source record
43 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT
AT NAKURU
Succession Cause 461 of 2009
(IN THE MATTERS OF THE ESTATE OF THE LATE SHELDON OYARO MUKHAYE (DECEASED)
JULIUS OMBISI
ANDREW OKWARO
WALTER OYALO...........................................................................................PETITIONERS/RESPONDENTS
VERSUS
JAMES MUKHAYE OYALO
JOEL MUKHAYE
H. OYALO........................................................................................INTENDED OBJECTORS/APPLICANTS
RULING
In my ruling delivered on 7th May, 2010, I emphasized the need to expedite the process of obtaining a grant of representation to obviate any wastage of the estate and to mitigate further acrimony in view of the fact that it is over 25 years since the deceased died. It appears parties took those sentiments seriously and are now keen to have some of them appointed administrators in order to finalize the process of administration by consolidating the estate, settling debts and distributing to the dependants the net estate. But on the question of who is to be appointed the administrators, there is no agreement. That is the question before me.
The deceased was survived by the following:
1st house
James Mukhaye Oyalo
2nd house
i)Joel Mukhaye Oyalo
ii)Julius Ombisi
3rd house
i)Leah Manga
ii)Naomi Oyalo
iii)Andrew Okwako
4th house
i)Edinah Ambasa
ii)Harron Oyalo
iii)Walter Oyalo
iv) Sheldon Oyalo
One side has proposed James Mukhaye Oyalo (representing 1st house) and Andrew Okwako (representing the 3rd house). The other side has objected to the appointment of James Mukhaye on the ground that over the years he has wasted and appropriated to himself the estate and therefore cannot be relied on to diligently administer the estate. They have also objected to the appointment of Joel Mukhaye Oyalo for the 2nd house and Harron Oyalo of the 4th house, even though their names have not been proposed. The two are accused of conspiring with James Mukhaye Oyalo in wasting the estate.
For their part, this side, (the petitioners) have proposed that they be permitted to proceed as petitioners and to be appointed administrators. In terms of Part V of the Law of Succession Actall the petitioners and the objectors together with those allied to them can claim a superior priority in the estate, all being children of the deceased. Julius Ombisi (2nd house), Andrew Okwako (3rd house) and Walter Oyalo (4th house) had petitioned for a grant.
James Mukhaye Oyalo (the only child in 1st house), Joel Mukhaye Oyalo (first born in the 2nd house) and Harron Oyalo (the 1st born son in the 4th house) objected. If only to satisfy each of the dependants and if only the law allowed, all the dependants would have been appointed to administer the estate. But Section 56 of the Law of Succession Act is explicit, that no grant can be made to more than four persons in respect of the same property.
Therefore, where there are multiple competing interests like in this dispute, Section 66 of the Law of Succession Act donates a final discretion as to who to appoint the administrator of the estate, bearing in mind the best interest of all concerned. There is no criteria, like first born, last born, girl, boy or only child, as it is a discretion being exercised. Those who have already applied and got gazetted represent the 2nd, 3rd and 4th house. The 1st house where there is only one child, James Mukhaye Oyalo is omitted for what the petitioners claim misappropriation of the estate.
The misappropriation has not been proved but only suspected. Excluding James Mukhaye Oyalo will only aggravate the acrimony. Including him will help in identifying the estate, collecting and consolidating the estate, some of which it is only him who knows, having been involved for over 25 years. The fact that he is an administrator will not stop any interested person to seek from him to render account.
In the interest of justice, it is ordered that a grant will be issued to:
i)James Mukhaye Oyalo
ii)Julius Ombisi
iii)Andrew Okwako, and
iv)Walter Oyalo
Those are my orders.
Dated, Signed and Delivered at Nakuru this 18th day of June, 2012.
W. OUKO
JUDGE