[2021] KEHC 7506 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KISUMU

CIVIL APPEAL NO. 123 OF 2019

JARED ODHIAMBO AIM................................................1ST APPELLANT

RONALD REAGAN ODHIAMBO..................................2ND APPELLANT

JOHN OKOTH NUNDA..................................................3RD APPELLANT

MARK ARODI MADUK................................................. 4TH APPELLANT

CASHETH AIKO OKIWI................................................5TH APPELLANT

VERSUS

JOHN OPANDE ONGARO................................................RESPONDENT

[An appeal from the ruling and decree of Senior Principal Magistrate

Hon. Patrick Olengo), at the Nyando in Succession Cause No.163 of 2016 as consolidated with ELC Case No. 107 of 2018 delivered on 13th June 2019]

JUDGMENT

The appeal before me arises from the Ruling dated 13th June 2019. By the said ruling, the learned trial magistrate dismissed the Appellants’ application for the revocation of the Grant which had been issued to the Respondent.

1. The learned magistrate stated that;

“The gist of the Application is that thegrant herein was issued without involvingthe Applicants herein who had purchasedpart of the land forming part of the estateof the deceased DOMINICUS ONGARO OBAPAlias ONGARO OBAP and as such they arebeneficiaries of the estate.”

2. The Summons for Revocation or Annulment of the Grant is dated 19th December 2018. Upon its face, the following are the grounds upon which the said summons was based;

“1. THAT the Grant was obtainedfraudulently on reliance upon falsestatements calculated to deceive/mislead, non-disclosure or concealmentof important matter that could haveguided the process.

2. THAT the proceedings making the grantwere defective in substance as they weretrained by false affidavits sworn by theRespondent herein and a suspectedcollaborator who has proceeded to obtaina title deed in respect of the estate despiterobust objections from beneficiaries of thedeceased.

3. THAT the Respondent, who is theAdministrator herein, has continuedafter due notice and after beingcautioned by the Office of the Chief,to intermeddle with the estate of thedeceased despite not having legalauthority or power to transferownership of the property of a deceasedperson.

4. THAT the Administrator herein has actedin bad faith right from the time he misledthe Office of the Chief that he was the ONLYbeneficiary of the deceased, to the time hepurportedly transferred the estate to asuspected collaborator at an undisclosedsum of money.

5. THAT after being put on notice by theCounty Administration through the Officeof the Chief, that his intermeddling withthe estate of the deceased amounted toan illegality punishable under the law,the Respondent herein is reportedly inhiding as evidenced by his failure/refusalto attend court for inter-partes hearing inrespect of ELC Suit No. 107 of 2018 in whichthe Applicants herein have sought, amongother orders, a prohibitory injunction inrespect of land parcel No. KISUMU/BORDER/697 which forms the estate of the deceased.”

3. From the above-cited grounds, the Appellants made no reference to themselves as beneficiaries of the estate. Secondly, there was no assertion, in the said grounds, that the Appellants had not been involved in the process leading to the issuance of the grant.

4. The learned magistrate agreed with the Respondent, that;

“…… the Applicants are not dependantsof the estate. The Applicants can only betermed as creditors to the estate, formingpart of the liability of the estate.”

5. Nowhere in the summons for revocation of the grant did the Appellants assert that they were dependants of the estate.

6. The trial court concluded thus;

“The Applicants should sue the estate ofthe deceased to reinforce their rights, if

any.

They are not dependants and thereforecannot apply for the revocation of granton the ground that they were not involvedin the Succession process.”

7. The Respondent has submitted that the grant of Letters of Administration were rightfully granted to him. His said submission is founded upon Section 38of the Law of Succession Act, which provides as follows;

“Where an intestate has left a survivingchild or children but no spouse, the netintestate shall, subject to the provisionsof Sections 41 and 42, devolve upon thesurviving child if there be only one, orshall be equally divided among thesurviving children.”

8. As the Respondent acknowledges the intestate would devolve upon the surviving child, if there be only one, or shall be shared equally among the surviving children.

9. In this case, the Respondent swore an affidavit in support of his Petition for letters of administration. At paragraph 4 of the said affidavit he deponed that he was the ONLYdependant who had survived the deceased, DOMINICUS ONGARO OBAP.

10. However, the Appellants’ assertion was that the Respondent had concealed material information, concerning the existence of his sisters.

11. When the Respondent swore his Replying Affidavit in answer to the summons for revocation, he disclosed the existence of his 2 sisters, SANTEL AWUOR ONGAROand EVERLINE ACHIENG.

12. The Respondent explained that his sisters had donated their “powers”to him, through a Power of Attorneydated 5th September 2016.

13. The Appellants have expressed doubts about the said Power of Attorney, in the light of the fact that the same was only registered on 14th December 2018.

14. However, for the purposes of the appeal before me, I am not called upon to make any determination about the validity or otherwise of the Power of Attorney.

15. The important point is that the Respondent was not an only child of the deceased. But in his affidavit in support of the Petition he described himself as the ONLYsurviving child.

16. I find that the said deposition was factually inaccurate. Therefore, it constituted either deceit on the part of the Respondent or concealment of a material fact.

17. It matters not that the Respondent’s sisters may possibly have consented to the transfer of the estate to the Respondent, at the time of confirmation of the Grant; because pursuant to Section 76 (b)of the Law of Succession Act;

“A grant of representation whether or notconfirmed may at any time be revoked orannulled if the court decides, either onapplication by any interested party orof its own motion –

………………..

(b) that the grant was obtained fraudulentlyby making of a false statement or byconcealment from the court of somethingmaterial to the case.”

18. Section 76makes it clear that the grant may be revoked or annulled at any time; and the court could do so either of its own motion or on an application.

19. The Respondent has submitted that the Appellants lacked the requisite locus standito bring the application, because they were not dependants.

20. The same said Section 76expressly stipulates that an application for revocation or annulment of a grant may be made by “any interested party.”

21. Pursuant to Section 51 (2) (g)of the Law of Succession Act stipulates that every application for a grant;

“…… in cases of total or partial intestacy,the names and addresses of all survivingspouses, children, parents, brothersand sisters of the deceased, and ofthe children of any child of his or hersthen deceased.”

22. In the case of IN THE MATTER OF THE ESTATE OF AGWANG WASIRO AliasACHWANG WASINO, HIGH COURT SUCCESSION CAUSE NO. 859 OF 2015, (Kakamega), Musyoka J. stated as follows;

“Section 51 (2) (g) requires the petitioner todisclose all the surviving spouses and childrenof the deceased. The provision is in mandatoryterms.”

23. As the Respondent herein had failed to disclose all the surviving children of the deceased, he was in breach of that statutory provision.

24. On that basis alone, the trial court ought to have revoked the grant.

25. The Respondent noted, in his submissions, that the Appellants had asserted that they bought portions of the land constituting the estate of the deceased, prior to his death. Therefore, he wondered why the shares purchased when the deceased was alive had not been transferred to the Appellants.

26. The Succession Cause is not the proper forum for determining whether or not any of the alleged sales were valid.

27. And in this case, it has been disclosed that the Appellants had instituted separate proceedings at the Environment and Land Court, to pursue their claims for the parcels which they had bought.

28. The Respondent submitted thus;

“Further, an applicant in an applicationfor nullification or revocation or grantmust demonstrate his or her interest inthe estate of the deceased.”

29. That is exactly what I understood the Appellants to have done; even though their claims had not yet been determined by the appropriate court.

30. In conclusion, I find that the Respondent had concealed material information from the court when he filed the Petition for letters of administration. Therefore, I allow the appeal, set aside the dismissal of the summons for revocation; and I substitute it with an order revoking the grant which had been issued to the Respondent.

31. As the appeal is successful, I award the costs thereof, together with the costs of the summons for revocation, to the Appellants.

DATED, SIGNED AND DELIVERED AT KISUMU THIS 22ND DAY OF APRIL 2021

FRED A. OCHIENG

JUDGE