[2011] KEHC 1746 (KLR)
The court found that while the objectors allege that Marachi/Bumala/1472 was held in trust by the deceased for Vincent Oduor Handa, they have not provided sufficient evidence to conclusively prove the existence of such a trust. The court held that the proper procedure would have been to file an independent suit to...
Source-derived case information.
- Citation
- [2011] KEHC 1746 (KLR)
- Parties
- Applicant: Dorcas Ambiyo Chimoto; Applicant: Wilfred Ochieng Oduor; Respondent: Samson Ochieng Obonyo
- Court
- High Court
- Court Station
- High Court at Busia
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 207 of 2008
- Procedural Posture
- Succession Cause / Ruling on Summons for Revocation of Grant
- Outcome
- Application for revocation of grant deferred; matter to proceed to hearing for proof of trust.
- Legal Topics
- Revocation of Grant, Trusts in Succession, Beneficiary Entitlement, Ancestral Land Disputes
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Dorcas Ambiyo Chimoto
Applicant
Wilfred Ochieng Oduor
Applicant
Samson Ochieng Obonyo
Respondent
Procedural Posture
Succession Cause / Ruling on Summons for Revocation of Grant
Legal Issues
- 1 Whether the grant of letters of administration to Samson Ochieng Obonyo should be revoked on grounds of lack of priority.
- 2 Whether Marachi/Bumala/1472 was held by the deceased in trust for Vincent Oduor Handa and his beneficiaries.
- 3 Whether the objectors are entitled to be included as beneficiaries in the estate of Lucas Obonyo Handa.
Ratio Decidendi
The court found that while the objectors allege that Marachi/Bumala/1472 was held in trust by the deceased for Vincent Oduor Handa, they have not provided sufficient evidence to conclusively prove the existence of such a trust. The court held that the proper procedure would have been to file an independent suit to plead and prove the trust, but in the interest of justice and efficiency, allowed the parties to adduce oral evidence on the issue of trust within the succession proceedings. The court declined to revoke the grant at this stage, instead directing that the matter proceed to hearing for proof of the alleged trust, with both parties given the opportunity to present and challenge...
Court Disposition
Application for revocation of grant deferred; matter to proceed to hearing for proof of trust.
Orders
- Proceedings for proof of a trust to be through oral evidence with the opposite sides with informed right for cross examination.
- Hearing date to be fixed in presence of both sides unless a party decides to ignore the Summons for attendance to court.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT BUSIA
SUCCESSION CAUSE NO. 207 OF 2008
IN THE MATTER OF THE ESTATE OF
LUCAS OBONYO HANDA …………………………… DECEASED
AND
IN THE MATTER FOR AN APPLICATION FOR REVOCATION OF GRANT
1. DORCAS AMBIYO CHIMOTO
WILFRED OCHIENG ODUOR ……………………APPLICANTS
RULING
The matter before the court is a Summons for Revocation or Annulment of Grant Letters of Administration made by court on 25. 2.2009 to Samson Ochieng Obonyo. The ground upon which the application is made is that he was not the person entitled in priority to obtain the grant.
I have carefully perused the affidavits in support and against the matter for revocation. I observed that the bone of contention between the objectors, Dorcas Ambiyo Chimoto and Wilfred Ochieng Oduor on the one hand and the Petitioner, Samson Ochieng Obonyo in respect of a parcel of land known as Marachi/Bumala/1472. The official search on record shows that the land was and is registered in the name of Lucas Obonyo Handa deceased. There is no dispute to the fact that the said Lucas Obonyo Handa, was the father of the Petitioner, Samson Ochieng Obonyo.
It is also clear from the records that Samson’s father Lucas Obonyo Handa had two brothers i.e. (1) Vincent Oduor Handa and (2) Charles Owuor Handa. The evidence in the affidavits is to the effect that the family’s ancestral land had been purportedly subdivided among the three sons of Handa and registered as Marachi/Bumala/1471.
Marachi/Bumala/1472
And Marachi/Bumala/1474
It is then claimed by the applicants/Objectors that Marachi/Bumala/1471 was to be registered in the name of Vincent Oduor Hand as Marachi/Bumala/1471 went to Charles Owuor Handa and Marachi/Bumala/1474 went to Lucas Obonyo Handa. It is the Objectors claim that although Bumala/1472 was to be registered in the name of Vincent Oduor Handa, it was not so registered because Lucas Registered it in his own name in trust for Vincent Oduor Handa, probably because of his then age of minority. The objectors case accordingly, as the court tries to understand it, is that when Lucas Obonyo Handa died, the Petitioner who petitioned for his Grant should have included the Objectors who reside on Bumala/1472 as they claim, as beneficiaries for the purpose of passing the parcel to them since it was held in trust for their benefit.
As the evidence stands on record however, more and better evidence to prove a trust was not availed. In any case in the court’s view, it would have been more appropriate if an independent suit had been filed separately to plead and prove the trust rather than attempt to squeeze such a process in an objection to the succession cause. A second alternative would be to allow full evidence to be adduced under this succession cause which however might be untidy although it would save time and costs. Having considered the two, I have settled for this second alternative. In those circumstance both sides will be properly warned as to what is expected of them so that their will be equal fairness to both sides.
ORDER:
1. Proceedings for proof of a trust to be through oral evidence with the opposite sides with informed right for cross examination.
2. Hearing date to be fixed in presence of both sides unless a party decides to ignore the Summons for attendance to court.
3. Issue of Attendance Summons to Petitioner, Samson Ochieng Obonyo, to be served by Court Process Server who must file an Affidavit of Service.
Dated and delivered at Busia this 24th day of August 2011
D.A.ONYANCHA
JUDGE