[2017] KEHC 1140 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT AT KISUMU

SUCCESSION CAUSE NO. 103 OF 2009

IN THE MATTER OF THE ESTATE OF

HENRY MICAH OMINO (DECEASED)

AND IN THE MATTER OF APPLICATION

BETWEEN

JOSEPHAT KOLA OMINO ……………………...……... 1ST APPLICANT/ADMINISTRATOR

LINDA ATIENO OMINO ………..……………………. 2ND APPLICANT/ADMININSTRATOR

PHILISTER OLILO OMINO ……………………………... 3RD APPLICANT/ADMINISTRATOR

ELIZABETH OMONDI OMINO …………….....……… 4TH APPLICANT/ADMINISTRATOR

AND

MORPHINE OGWENO OIGO ………………………….………………………… 1ST PROTESTOR

BENARD MOTI OMINOH ………………………………………………..………. 2ND PROTESTOR

RULING

Introduction

1. Henry Micah Omino (“the deceased”) died on 20th December 2008. The settlement of his estate has been derailed by several applications and counter applications. I directed the administrators to file a summons for confirmation of grant so that the estate can be wound up. The summons for confirmation of grant was filed on 1st August 2016 by the administrators. The properties comprising the deceased’s estate are not in dispute. As regards beneficiaries, it is agreed that during his lifetime, the deceased had five wives: Miriam Adera Omino, Felgona Ouko Omino (deceased), Philistas Olilo Omino, Helida Opiyo Omino and Elizabeth Anyango Omino. What is in dispute are the claims by the two protestors, Morphine Ogweno Oigo and Bernard Ezekiel Moti Omino.

2. Before proceeding to distribution of the estate, I directed the parties to deal with the issue of the protestors. In that regard, I took oral testimony of Helida Apiyo Omino (“Helida”) (PW 1), Benard Ezekiel Moti (“Benard”) (PW 2), Edward Olango Omino (Edward”) (PW 3) and Morphine Ogweno Oigo (“Morphine”) (PW 4). Philister Olilo Omino (“Philister”) (DW 1) testified on behalf of the administrators.

Morphine Ogweno’s Case

3. Morphine’s case is that she is the deceased’s granddaughter. Her mother, Violet Atieno, was the daughter of the deceased and Prisca Achieng (“Prisca”). Helida, Philistas and Edward agree that Prisca was married to the deceased and at some point they disagreed and the deceased chased her away. By the time she was leaving she had two children with the deceased; Godfrey Odhiambo Omino and Violet Atieno. It is also agreed that at the time Violet had a young child, Morphine. When Odhiambo died, the deceased refused to have him buried at his home. According to Morphine, Prisca brought her up and took care of her until she died in 2002. Violet predeceased her in 1997. When Prisca died she was buried in Mbita by her sister who took care of her while she was ailing in her final days.

4. I have no doubt that Morphine is the granddaughter of the deceased. Although the deceased and Prisca separated, the fact remains that the Violet Atieno remained a child of the deceased. Since all the direct beneficiaries of that house are now deceased, the only beneficiary to stand in for that house is Morphine. This position is fortified by the fact that the parties herein agreed by a consent recorded on 18th October 2012 that, “Morphine Ogweno be admitted as an heir on her own right.”

5. During one of the family meetings to settle the estate, Morphine was offered Kshs. 100,000/- to settle her claim. Philistas testified that they considered Morphine a granddaughter and since there were several grandchildren, her claim could not be enhanced as the other grandchildren would have to be dealt with in the same manner. In my view, this argument lacks merit as Morphine is a direct beneficiary only because her grandmother and mother who are direct beneficiaries are now deceased. Regarding the inheritance by grandchildren, the Court of Appeal in Christine Wangari Gachigi v Elizabeth Wanjira Evans and 11 Others NKU CA Civil Appeal No. 221 of 2007 [2014]eKLR stated as follows:

Although Sections 35 and 38 of the Laws of Succession Act is silent on the fate of surviving grandchildren whose parents’ pre-deceased the deceased, the rate of substitution of a grandchild for his/her parent in all cases of intestate known as the principle of representation is applicable. The law on this is section 41. If a child of the intestate has pre-deceased the intestate then that child’s issue alive or en ventre sa mere or that date of the intestate’s death will take in equal shares per stirpes contingent on attaining the age of majority. Per stirpes means that the issue of a deceased child of the intestate takes between them the share their parents would have taken had the parent been alive at the intestate’s death.

6. I therefore find and hold that Morphine is a beneficiary or heir under the doctrine of representation.

Benard Moti’s Case

7. According to a partial record of court proceedings in Winam Resident Magistrate Court, Divorce Cause no. 72 of 1972, Ludiah Auma d/o Hezekiel Moti v Henry Mica Omino, the deceased married Lydia Moti (“Lydia”) in 1964. They stayed together until 1967 when Lydia filed divorce proceedings. The record shows that Lydia had two children with the deceased; George Okoth and Sairose Akinyi. The record is incomplete as it does not show the final result of the proceedings. At any rate, the issue before me is whether Benard Moti Omino (“Benard”), who was born in 1991, is that son of the deceased and Lydia.

8. Benard told the court that he was born in 1992 and that he lived with his mother, who was a teacher, in Muhoroni. He confirmed his mother did not own any land there. He recalled that he accompanied his mother to Karateng’ whenever she visited the deceased and at no time did the deceased express the view that he was not his son. He also recalled that he accompanied the Lydia to the meetings where the issue of the deceased’s inheritance was discussed and that he was never told that he was not a son of the deceased.

9. Benard further testified that his mother died on 28th August 2016 and that the Omino family refused to get involved in funeral arrangements though they attended the funeral when she was buried in Karateng’ next to the deceased. He produced a birth certificate issued on 13th September 2017 which showed that the deceased was his father.

10. Edward accepted that Benard was the son of the deceased. He told that after about 40 years after the separation, the Lydia began appearing at Karateng’ with Benard. She would visit and go back to her home in Muhoroni. He recalled that Lydia would even stay for a few days though she would sleep in the deceased’s mother’s house.

11. Philister denied that Benard was a son of the deceased. She came to know Lydia when she returned home to bury her son George Okoth in 1978 and the daughter Rosemary Akinyi much later. In any case, she told the court that by the time she got married to the deceased, Lydia was no longer married. She recalled that the Lydia came to see the deceased in the 1990s and requested him to build a house for her but he refused. She also told the court that the deceased never supported Benard during his lifetime. When Lydia died, Philister testified that the family sat down and decided to offer assistance to Benard since he had no place to bury her. The family allowed him to bury his mother in Karateng’ but did not participate in the burial. She denied that Lydia was buried next to the deceased.

12. Whether Benard is a son of the deceased and beneficiary is not necessarily dependent on whether the Lydia was a wife. The question is whether Benard is the deceased’s son and he bears the burden of proving, on the balance of probabilities, that he is a son of the deceased.

13. It is worth noting that when these proceedings commenced Lydia was an active participant and she swore several deposition regarding her status. I have considered the oral testimony alongside Lydia’s depositions. Claiming that she was a wife of the deceased, Lydia filed an affidavit objecting to the petition. In that affidavit sworn on 29th July 2010 she insisted that she was the deceased’s wife as the proceedings at the Winam court did not terminate or dissolve the marriage. She also filed an answer to petition for grant claiming she was entitled to priority in administration of the estate. In a Replying Affidavit sworn on 28th September 2010 she stated as follows;

[7] The deceased was survived by 6 widows and not 5 as stated in the objector’s affidavit, myself included and 32 children and not 30 as stated in the objector’s affidavit, my two children George Okoth and Sairose Akinyi included, all of whom have an interest in the estate and who do not live in one place.

14. This is a clear and unequivocal statement by Lydia that she only had two children with the deceased. I have gone through the proceedings and I did not find any mention of Benard as her son with the deceased over the 6-year period she was involved in this litigation. This is particularly strange given that Benard was barely an adult when the deceased passed away and at the time the petition was filed. Further, Philister testified that George and Sairose were dead and even if they were alive, they would have been over 40 years old. It is therefore odd that Lydia would be concerned about their inheritance rather than that of her young son unless of course she knew the Benard was not the deceased’s son.

15. The sum of the evidence is that the deceased was a man who took care of his family and ensured that they were educated. It is inconceivable that he would not have recognised Benard as his son during his lifetime and treated him as such by paying for his education and upkeep. His conduct should be contrasted with the matter he treated Prisca when they parted. The deceased refused to have anything to do with her children even to the extent refusing to bury his own children. On the other hand, though he had parted ways with Lydia, he still allowed her to bury his two children at Karateng’.

16. The birth certificate produced by Benard was obtained after the deceased’s death after the issue of his paternity was raised at the hearing. Although there is nothing in the Births and Deaths Registration Act (Chapter 149 of the Laws of Kenya) that prohibits a birth from being registered at any time, the certificate was obtained long after the deceased’s death and no explanation was given for the delay. Benard did not produce any other documents like the birth notification or baptismal card that would corroborate the fact that the deceased was his father. The only inference I can draw particularly in light of all the other evidence is that it was merely obtained to support his case.

17. I do not view the fact that Lydia was buried in Karateng’ as supporting Benard’s position. From the evidence, the deceased still maintained a relationship with her as she would visit him from time to time. Hence for example, unlike his relationship with Prisca, her children were buried in Karateng’. The evidence is also that the family still considered and accepted Lydia as the deceased’s former wife and mother of his children. The nagging question for me and what Benard and his witnesses did not demonstrate is that the deceased and the family recognised Benard as his son given that the deceased still maintained a relationship with Lydia. Did he, for example, allow Benard to come back to Karateng’ and build a simba when he was at the cusp of adulthood? How did the family treat Benard during the deceased’s funeral? Was he recognised as the deceased’s son? Nothing about Benard’s relationship with the deceased can be gleaned from the few visits Benard had with his mother.

18. Finally, I heard Benard testify. He did not strike me as a person who knew the deceased and his family well. His knowledge of key facts was scanty for a person asserting his position as a son of the deceased. His demeanour and the totality of the evidence lead me to conclude that Benard did not prove, on the balance of probabilities, that he is a son of the deceased (see E.M.M. v I.G.M NRB CA Civil Appeal No. 114 of 2012[2014]eKLR).

Disposition

19. I allow the claim by Morphine Ogweno Oigo and dismiss that claim by Benard Ezekiel Moti Omino.

20. Following the finding in favour of Morphine, I direct the parties to further agree on a fresh distribution taking into account her share of the estate bearing in mind the provisions of section 40 of the Law of Succession Act.

21. When confirming the grant, the court is required to identify every beneficiary and the share the person is entitled to. The proviso to section 71 of the Law of Succession Act states that;

Provided that, in cases of intestacy, the grant of letters of administration shall not be confirmed until the court is satisfied as to the respective identities and shares of all persons beneficially entitled; and when confirmed such grant shall specify all such persons and their respective shares.

22. I direct the administrators to identify the specific beneficiaries in each house and file the appropriate affidavit in order to ensure that the estate is settled by this court with finality.

23. As regards the Bank Accounts, I direct that Barclays Bank of Kenya Limited provide updated statements of account upto the date of service of this order for Accounts Nos. [particulars withheld].

24. The administrators shall also file final accounts of all monies received by them from rents and any monies held in any joint accounts by their advocates.

25. Subject to the orders I have made, the summons for confirmation dated 1st August 2016 is accordingly adjourned pending compliance with these orders.

DATED and DELIVERED at KISUMU this 4th day of December 2017

D. S. MAJANJA

JUDGE

Mr Otieno instructed by Otieno, Ragot and Company Advocates for the administrators.

Mr Omollo instructed by Ken Omollo and Company Advocates for the 1st protestor.

Mr Yogo instructed by Otieno, Yogo, Ojuro and Company Advocates for the 2nd protestor.