[2004] KEHC 2325 (KLR)
The court found that the respondent was not a beneficiary to the estate of the deceased and had obtained the grant and its confirmation by fraud and misrepresentation, having failed to disclose the existence of the applicant, the only son and rightful heir. The respondent did not rebut the applicant's assertions...
Source-derived case information.
- Citation
- [2004] KEHC 2325 (KLR)
- Parties
- Applicant: Joshua Oswere Oyamo; Respondent: John Odhiambo Agoro
- Court
- High Court
- Court Station
- High Court at Kisii
- Jurisdiction
- Kenya
- Case Number
- ? 56 of 2003
- Procedural Posture
- Miscellaneous Application / Ruling on Application to Annul Grant and Confirmation
- Outcome
- application allowed; grant and confirmation annulled; costs to applicant
- Legal Topics
- Succession Proceedings, Annulment of Grant, Fraud and Misrepresentation, Beneficiary Rights
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Joshua Oswere Oyamo
Applicant
John Odhiambo Agoro
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application to Annul Grant and Confirmation
Legal Issues
- 1 Whether the grant and confirmation of grant in Migori Succession Cause No.99 of 2000 was obtained by fraud and misrepresentation.
- 2 Whether the respondent was a lawful beneficiary to the estate of the deceased.
- 3 Whether procedural defects in the application render it fatally defective.
Ratio Decidendi
The court found that the respondent was not a beneficiary to the estate of the deceased and had obtained the grant and its confirmation by fraud and misrepresentation, having failed to disclose the existence of the applicant, the only son and rightful heir. The respondent did not rebut the applicant's assertions regarding his status as the sole surviving heir or the fraudulent manner in which the grant was obtained. The court held that procedural defects cited by the respondent did not go to the substance of the application and did not prejudice the respondent, who was duly served and heard. The grant and its confirmation were therefore annulled, and all consequential orders set aside....
Court Disposition
application allowed; grant and confirmation annulled; costs to applicant
Orders
- The grant and confirmation in Migori Succession Cause No.99 of 2000 are annulled.
- All subject orders or actions arising from the grant are set aside.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KISII
MISC. CIVIL APPL. NO.162 OF 2003
IN THE MATTER OF ESTATE OF OYUGI LWENDO
JOSHUA OSWERE OYAMO ………………………………………… APPLICANT.
VERSUS
JOHN ODHIAMBO AGORO …………………………………. RESPONDENT
RULING
The applicants application is brought under S.76 (b) & (c) of the Law of Succession Act and seeks Orders to annul the grant and confirmation of the same in Migori Succession Cause No.99 of 2000 to JOHN ODHIAMBO AGORO.
The said JOHN ODHIAMBO AGORO filed the said Succession Cause in respect of the Estate of the late OYUGI who died in 1974. By then he was the registered owner of land No.KAMAGAMBO/KANYIMACH/753
John Odhiambo – now the respondent indicated he was the sole beneficiary to the Estate of the deceased. He was granted letters of administration which were confirmed after one month. He had the land transferred to his name.
The applicant Joshua Oswere Oyano depones that he is the only son and surviving relative of the deceased and that the respondent was not at all a beneficiary to the Estate of the deceased. He therefore misrepresented to court to whom he said he was a beneficiary of the Estate. He colluded with the area chief who wrote a letter showing him as a beneficiary.
In replying the respondent submitted through his counsel that the application is defective as it does not comply with provisions of Order 50 rule 15(2) CPR.
It was further submitted that the supporting affidavit does not state the place of abode of the deponent as provided in Order 18 rule 4 CPR.
Further it was stated that applicant should have filed objection before Migori Court.
I have considered the application. Though in the affidavit it was stated that there were annextures none were filed. Nonetheless the court quite well understood the sequence of events. The applicants main ground is that the respondent is not a beneficiary of the Estate of the deceased. He therefore cheated the court. He did not indicate to the court that there were other beneficiaries. The Respondent throughout his submissions did not attempt to answer those allegation and only dwelt on the defectiveness of the application. The applicant stated he was a son of the deceased. He deponed that the respondent was not a beneficiary to the estate of the deceased. This again as not answered by the respondent. The only conclusion one can reach therefore is that all what the deponent has stated is true. As a son of the deceased and the only surviving heir he was the right person to be given a grant to the Estate. If he had refused or ignored to do so he should have been cited. This was not done. It was therefore fraud and misrepresentation for the respondent to inform the court that he was the sole beneficiary of the Estate and failing to disclose there were other heirs.
The respondent stated that Order 50 rule 15(2) was not complied with. This is true but I do not feel that being merely omitting to include the words shown in that rule makes this application defective. The Respondent was served with the application. He appeared on the hearing date and was heard and no orders were made in his absence. The spirit of the rule is to give a way to those who fail to attend on the hearing date.
As for the affidavit the first line clearly states the address of the deponent and the town. That is enough description of the deponent’s about.
True the applicant could have filed an objection in Migori Court but that is assuming that he was aware of the matter. He deposed that the grant was confirmed after only one month instead of the stipulated 6 months. The Respondent did not try to explain this. In any case the fact that he did not file an objection before Migori Court does not stop him from coming to this court.
The upshot of the above therefore is that the application is well merited. The grant and confirmation in Migori Succession Cause No.99 of 2000 was obtained by fraud and misrepresentation. The same is annulled and all subject orders or actions set aside. Costs to the applicant.
KABURU BAUNI
JUDGE.
12/2/04