[2022] KEHC 11435 (KLR)

In re the Estate of the late Wanzala Muchongo (Deceased) (Succession Cause 21 of 2006) [2022] KEHC 11435 (KLR) (7 July 2022) (Ruling)

Neutral citation: [2022] KEHC 11435 (KLR)

Republic of Kenya

In the High Court at Busia

Succession Cause 21 of 2006

JR Karanja, J

July 7, 2022

iN THE MATTER OF THE ESTATE OF THE LATE WANZALA MUCHONGO (DECEASED)

Between

Henry Egesa Wanjala

Petitioner

and

Rodgers Ombale Magina

Objector

and

ACK Nasira

Interested Party

Ruling

1. The application dated April 30, 2021 is for revocation of the certificate of confirmation of grant dated March 10, 2021 on the basis of the grounds contained in the summons for revocation of grant as supported by the affidavit deponed by the applicant, Rodgers Ombale Magina, on the April 30, 2021. The Petitioner, Henry Egesa Wanzala, opposed the application vide the replying affidavit dated July 2, 2021. The interested party, ACK Nasira, does not appear to have filed an affidavit in response to the application.Nonetheless, the matter proceeded by way of written submissions and all the parties including the interested party filed their respective submissions which were given due consideration by this court in the light of the supporting grounds for the application.

2Basically, the parameters for the revocation of a grant or a certificate of confirmation of grant or both are set out in s 76 of the Law of Succession Act which provides that:“A grant of representation, whether or not confirmed may at any time be revoked or annulled if the court decides, either on application by any interested party or if its own motion:-a.That the proceedings to obtain the grant were defective in substance,b.That the grant was obtained fraudulently by the making of a false statement or by the concealment from the court of something material to the case,c.That the grant was obtained by means of untrue allegation of a fact essential in point of law to justify the grant notwithstanding that the allegation was made in ignorance or inadvertently,d.That the person to whom the grant was made has failed, after due notice and without reasonable cause either-i.To apply for confirmation of the grant within one year from the date thereof or such longer period as the court order or allow, orii.To proceed diligently with the administration of the estate, oriii.To produce to the court, within the time prescribed, any such inventory or account of administration as is required by the provisions of paragraph ( e) and (g) of section 83 or has produced any such inventory of account which is false in any material particular, ore.That the grant has become useless or inoperative through subsequent circumstances.

3In the supporting affidavit, the applicant averred that the petitioner applied for confirmation of the grant on October 5, 2007 and he filed a protest thereto. The court heard the protest and dismissed it. The grant was then confirmed in terms of the application for confirmation. The applicant moved to the Court of Appeal on appeal against ruling of the court. The appeal was pending at the time the present application was filed.It was also averred by the applicant that the petitioner wrongly extracted the impugned certificate of confirmation of grant thereby going against the court ruling and coming up with new proposals on distribution of the estate.The applicant essentially contends that the petitioner illegally and fraudulently extracted the certificate of confirmation of grant issued on the basis of his application dated October 15, 2020 which the applicant had never been served with and which resulted in the omission of his name in the distribution.

4The applicant’s submissions are largely a reiteration and affirmation of the averments contained in his supporting affidavit.The petitioner in opposing the application submitted that the impugned certificate of confirmation of grant was properly drawn and issued. That, the application is a clear abuse of the court process by the applicant.The interested party submitted that as a church its interest in the estate property was catered for such that it has no interest in the rest of the estate which the petitioner and the applicants are disputing about. the interested party therefore left the matter to the court to resolve the difference between the petitioner and the objector.

5The record shows that the impugned certificate of confirmation of grant dated March 10, 2021 was regularly issued by the court after a protracted dispute between the parties in particular the applicant and the petitioner on the distribution of the estate which resulted in the ruling of the court dated the April 30, 2019 where the proposal of distribution made by the petitioner was upheld. It was that ruling which informed the impugned certificate of confirmation of grant.The applicant/objector was apparently aggrieved by the ruling. He filed an appeal at the Court of Appeal but the indication given herein are that the appeal is pending hearing and determination. It would therefore follow that the present application in as much as it was brought before the finalization of the appeal was clearly an abuse of the court process and an attempt by the applicant to circumvent the appeal which was preferred by himself and which is expected to deal with the issues that have been raised in this application.

6Although the applicant alleged that the impugned certificate of confirmation was fraudulently obtained and/or extracted he failed to provide sufficient and credible evidence in that regard. In the premises, the applicant failed to satisfy the conditions for revocation and/or annulment of grant as stipulated in s 76 of the Law of Succession Act.In sum, the present application is devoid of merit and is hereby dismissed with costs to the petitioner.

J.R. KARANJAHJ U D G E[READ AND SIGNED THIS 7TH DAY OF JULY, 2022]