[2015] KEHC 1138 (KLR)
The court determined that it cannot proceed to distribute the estate or resolve the contest between the petitioner and objector without ensuring that all surviving children of the deceased, or their representatives, have either participated in the proceedings or formally renounced their claims. The court emphasized...
Source-derived case information.
- Citation
- [2015] KEHC 1138 (KLR)
- Parties
- Applicant: Joseph Nyerere Okumu; Respondent: Joseph Peter Oduku
- Court
- High Court
- Court Station
- High Court at Busia
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 411 of 2011
- Procedural Posture
- Succession Cause / Directions After Hearing Oral Evidence, Pending Final Determination
- Outcome
- Further directions issued; final determination deferred pending participation or renunciation by all beneficiaries.
- Legal Topics
- Succession, Dependants Definition, Estate Distribution, Renunciation of Claims
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Joseph Nyerere Okumu
Applicant
Joseph Peter Oduku
Respondent
Procedural Posture
Succession Cause / Directions After Hearing Oral Evidence, Pending Final Determination
Legal Issues
- 1 Whether Joseph Peter Oduku qualifies as a child or dependant of the deceased under Section 29 of the Law of Succession Act.
- 2 Whether the estate can be distributed without participation or renunciation by all surviving children of the deceased.
Ratio Decidendi
The court determined that it cannot proceed to distribute the estate or resolve the contest between the petitioner and objector without ensuring that all surviving children of the deceased, or their representatives, have either participated in the proceedings or formally renounced their claims. The court emphasized that entitlement to a share of the estate is not lost by mere non-participation in the litigation, referencing Section 38 of the Law of Succession Act and the Court of Appeal decision in Christine Wangari Gachigi v Elizabeth Wanjiru Evans & 11 others. Accordingly, the court directed that all surviving children and the administrator or children of the late Peter Odongo Okumu be...
Court Disposition
Further directions issued; final determination deferred pending participation or renunciation by all beneficiaries.
Orders
- The petitioner shall serve all surviving children of the deceased and the administrator or children of the late Peter Odongo Okumu to attend court on a date to be appointed.
Full Case Text
Judgment text and source record
27 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT BUSIA
SUCCESSION CAUSE NO. 411 OF 2011
IN THE MATTER OF THE ESTATE OF BENJAMIN OKUMU ODUKI (DECEASED)
BETWEEN
JOSEPH NYERERE OKUMU…………….PETITIONER
VERSUS
JOSEPH PETER ODUKU………....………OBJECTOR
DIRECTIONS
1. These proceedings are in respect to the Estate of Benjamin Okumu Oduki (The Deceased) who died on 29th January 1990. A contest which pits Joseph Nyerere Okumu (The Petitioner) against Joseph Peter Oduki (The Objector) has arisen.
2. After hearing oral evidence of the Contestants and their witnesses, I reserved my decision for 11th November 2015. Upon an evaluation of the Evidence it became evident that the Deceased was survived by the following blood children:-
Peter Odongo Okumu
Jospeh Nyerere Okumu (the Petitioner)
Edwin wafula Okumu
Elizabeth Anyango
Whether or not the Objector was taken in as a child or otherwise a Dependent of the Deceased in terms of Section 29 of Law of Succession Act is a matter to be determined by this Court. Edwin Wafula Okumu and Elizabeth Anyango never participated in these proceedings while Peter Odongo Okumu is said to have died on 23rd November 1993. The son of the late Peter by the name Stephen Juma Okumu swore a witness affidavit on 12th March 2014 as a witness for the Objector.
3. My determination of the contest between the Petitioner and the Objector may well be a determination on the Distribution of the entire Estate. This Court cannot meaningfully determine the matter unless the other children of the Deceased renounce their claims, if any, or have their say in Court. This Court heeds the words of the Court of Appeal in Christine Wangari Gachigi vs Elizabeth Wanjiru Evans & 11 others (2014) eKLR when it stated,
Under Section 38 of the Act; all that one needed to establish in this cause was to show that they were either children or grandchildren of the deceased. Matters of failure to participate actively in the litigation proceedings should not have been a disentitling consideration in respect of the 2nd 3rd and 4th cross appellants, in the absence of their renounciation of respective claims to the estate.
4. This Court therefore directs that the Petitioner serves all the surviving children of the Deceased and the Administrator of the Estate of Peter Odongo Okumu (or if no administrator has been is appointed, his surviving children) to attend before me on a date I shall presently appoint.
5. Those are my directions.
Dated, signed and delivered at Busia this 11th day of November 2015
F. TUIYOTT
J U D G E
In the presence of
Oile – C/Assistant
Petitioner Present in person
Objector present in person