[2017] KEHC 5656 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT SIAYA

SUCCESSION CAUSE NO. 182 OF 2016

(CORAM: J.A. MAKAU - J.)

IN THE MATTER THE ESTATE OF

MAGDALENE OKECH ONYANGO ALIAS MAGDALINA OKECH

NICHOLAS OGUTU……………...……………………...………OBJECTOR

VS

1. OCHIEL MUGOYE OKUMU…………….....….....….………PETITIONER

AND

2. WILSON ATINGA ODHIAMBO……....…………..INTERESTED PARTY

J U D G M E N T

1. The Objector NICHOLAS OGUTUthrough summons for revocation of grant dated 1st November 2006 pursuant to the provision of Section 76 of the Law of Succession Act and Rule 44(1) of the Probate and Administration Rulessought the following orders: -

“(i) That the grant of letters of administration interstate issued by the Resident Magistrate, Siaya on 4th November, 1988 in SIAYA RM SUCC No. 69 of 1988 to OCHIEL MUGOYE OKUMU be annulled.

(ii) That, the title deed in respect of land parcel number CENTRAL ALEGO/KOMOLO/628 in the name of WILSON ATINGA ODHIAMBO be cancelled and the title of the suit land to revert for the joint names of MAGDALENE OKECH ONYANGO and the objector one NICHOLAS OGUTU.

(iii) That, the costs of this application be provided for.”

2. The application is promised on the following grounds: -

(a) The proceedings to obtain the grants were defective.

(b) The grant was obtained fraudulently by making of a false state and fraudulently concealment of a material fact.

(c) The grant was obtained by means of an untrue allegation of fact.

3. The application is further supported by an affidavit filed by the objector dated 1st November 2006 in which the objector deponed inter-alia: - that the parcel Central Alego/Komolo/628 was registered in the name of the objector and Magdalina Okech Onyango, the deceased herein as per annexure marked no.1, that upon death of Magdalina Okech Onyango on 10th May 1981, the petitioner fraudulently did success in Siaya Resident Magistrate Court vide SRM Succession Cause No. 69 of 1985, obtained grant of letters of administration as per annexure no 2; that the petitioner registered his name as the proprietor of the suit land in place of the deceased so that the petitioner and the objector became joint owners thereof; that on the 18th November 2005, the petitioner fraudulently transferred the suit land to Wilson Atinga Odhiambo; that the grant was obtained fraudulently as the petitioner is not son of the deceased as stated in form P&A80; that the petitioner did not disclose to the Land Registrar that there was a co-proprietor of the subject land before the land was transferred; that Wilson Atinga Odhiambo knew the objector was a co-proprietor of the subject land yet he went ahead to have the whole land transferred into his name and that his portion should not have been subjected to succession; that the deceased was Aunt to the objector and had taken the objector into her own family as her son, that the objector is the only person entitled to succeed her; that the grant was obtained fraudulently as a result of non-disclosure of the material facts; that the procedure of obtaining the grant was defective and as such the grant should be revoked or annulled and the title deed revert to the earlier joint names.

4. According to the court record the petitioner who appeared in person did not file a reply to the summons for the revocation of the grant. However, the interested party who is represented by M/S Maxwell O. Ogonda & Associates Advocates filed a replying affidavit dated 5th May 2014.

5. It is contended by the interested party that it is true that the land was initially registered in the name of the deceased Magdalina Okech Onyango and the objector; that the interested party was not party to Siaya RMSC 69 of 1988 and as such he is unable to respond to the issues over the succession cause; that the objector and the petitioner knew very well they were registered to hold the land in trust for the interested party as he was very young during the land adjudication process and as he was an orphan, that Magdalina Okech w/o Abia was his paternal grandmother and the only surviving grandchild hence entitled to inherit from her estate; that both the petitioner and the objector voluntarily accepted in writing to transfer the parcel of land to the interested party as per annexure WAO 2; that the land was subsequently transferred to the interested party at Siaya District Lands Control Board and land duly registered into the interested party’s name on 18th November 2005 and tittle deed issued to the interested party; that the objector is not an indigenous member of the interested party’s clan as he comes from Ugenya District, North Uholo location, Sigomere where he has his ancestral land as per Chief’s letter WAO 3; that the objection is misplaced, ill-advised and should be dismissed.

6. On 8th June 2016, court gave directions that the objection be determined by way of viva voce evidence. The objector gave evidence and called two witnesses whereas the petitioner gave evidence and called one witness and the interested part gave evidence and called no witness.

7. The objector’s evidence and that of his witness is that the objector is nephew to the deceased being a son to the brother of the deceased herein. That the said land was registered in the joint names of the objector and the deceased. That the objector has been on the said land since his childhood and is the only person who has been in occupation. That the deceased recognized the objector as her son. That the deceased had three daughters, two of whom are deceased leaving Lucia Okinjo (OW3). The objector and Lucia Okinjo claim they are the ones entitled to the grant over the deceased estate and the petitioner obtained the grant over the deceased estate fraudulently.

8. The petitioner and his witness in their evidence stated that the suit land belonged to the petitioner and the interested party, being nephew to the petitioner and a grandson to the deceased. Petitioner admitted that no consent was obtained from the objector and the deceased surviving daughter. That the objector is the one who has been in occupation of the land and should vacate the land and go to his family land at Ugenya. That the land has been subject of dispute at court and it was awarded to the petitioner and as such he did not seek consent from the objector and the deceased daughter since she was married. That the lad was subsequently transferred to the interested party.

9. The interested party on his part stated that the land belonged to the deceased who was her grandmother and that he is claiming interest over the land. He informed the court he has no objection to the grant being revoked so as to enable them sort out the issue of their respective interests; as he shall lay his claim over the deceased estate.

10. I have very carefully set out the objector’s claim, the parties respective opposing positions and the issues for consideration in this matter can be summed as follows: -

(a) Whether the objector has laid down sufficient grounds to warrant the revocation of the grant?

(b) If the grant is revoked should the said land revert back to the initial owners?

(c) Who if grant is revoked should be appointed administrator(s) of the deceased estate?

(d) Who should get costs of this cause?

11. The first issue for my consideration is whether the objector has laid down sufficient grounds to warrant the revocation of the grant? Section 76(1)(a)(b) and(c) of the Law of Succession Actprovides: -

“76. A grant of representation, whether or not confirmed, may at any time be revoked or annulled if the court decides, either on application by any interested party or of its own motion-

(a) that the proceedings to obtain the grant were defective in substance;

(b) that the grant was obtained fraudulently by the making of a false statement or by the concealment from the court of something material to the case;

(c) that the grant was obtained by means of an untrue allegation of a fact essential in point of law to justify the grant notwithstanding that the allegation was made in ignorance or inadvertently;”

The objector in this application has based his application on the grounds under Section 76(1)(a)(b) and(c) of the Law of Succession Act. The petitioner did not file any reply controverting the contents of the objector’s affidavit. In Form P&A 80, the objector claimed that he is a son of the deceased and failed to state the deceased had a daughter. The petitioner obtained the grant fraudulently by making a false statement and/or by concealing from the court of something material in this cause by failing to disclose that the deceased was survived by a daughter Lucia Okinjo and she had taken the objector as her son since his childhood. That he was not a son to the deceased but a nephew. I find that the objector has satisfied the conditions set out under Section 76(1)(a)(b) and(c) of the Law of Succession Act. I accordingly find the grant obtained by the petitioner was obtained fraudulently and the same ought to be revoked.

12. If the grant is revoked should the said land revert back to the initial owners? There is no dispute that the suit land, Central Alego/Komolo/628 initially was registered in the names of: -

(a) Magdalina Okech w/o Abia- ½ share.

(b) Nicholas Ogutu - ½ share.

13. That following grant of letters of administration to the petitioner the land was registered in joint names of the petitioner and the objector. That the petitioner without consent and knowledge of the objector transferred the whole land to the interested party, depriving the objector his ½ share which was not subject of the succession cause under Siaya RMCSC 69 of 1988. The petitioner fraudulently transferred the objector’s share and that of the deceased to the interested party. The interested party has no objection to the title in his name being cancelled and the title reverting back to the initial proprietors. I have considered the fact that the petitioner in transferring the land to the interested party, the same was done following a grant of letters of administration which had been obtained fraudulently. The interested party is a beneficiary of a title deed obtained fraudulently and the same should not be allowed to stand. I therefore find the title deed held currently by the interested party should be cancelled and the title deed revert into the names of the objector and the deceased Magdalina Okech w/o Abia.

14. Who if the grant is revoked should be appointed administrator(s) of the deceased’s estate? The objector testified that since his childhood he was under the care of the deceased who took him as her son. OW3 stated that she is the only surviving daughter of the deceased whereas the petitioner is a nephew to the deceased and that the interested party is the grandson to the deceased. under the provision of the Section 66 of the Law of Succession Act, the court has the final discretion as to the person or persons to whom a grant of letters of administration shall in the best interest of all concerned be made, but shall, without prejudice to the discretion, accept as a general guide the order of preference stated thereto. Section 66 of the Law of Succession Act provides: -

“66. When a deceased has died intestate, the court shall, save as otherwise expressly provided, have a final discretion as to the person or persons to whom a grant of letters of administration shall, in the best interests of all concerned, be made, but shall, without prejudice to that discretion, accept as a general guide the following order of preference-

(a) surviving spouse or spouses, with or without association of other beneficiaries;

(b) other beneficiaries entitled on intestacy, with priority according to their respective beneficial interests as provided by Part V;

(c) the Public Trustee; and

(d) creditors:

Provided that, where there is partial intestacy, letters of administration in respect of the intestate estate shall be granted to any executor or executors who prove the will.”

15. Under Section 29 of the Law of Succession Act, “dependant” is defined as to mean as follows: -

“29. For the purposes of this Part, “dependant” means-

(a) the wife or wives, or former wife or wives, and the children of the deceased whether or not maintained by the deceased immediately prior to his death;

(b) such of the deceased’s parents, step-parents, grand-parents, grandchildren, step-children, children whom the deceased had taken into his family as his own, brothers and sisters, and half-brothers and half-sisters, as were being maintained by the deceased immediately prior to his death; and

(c) Where the deceased was a woman, her husband if he was being maintained by her immediately prior to the date of her death.”

16. In view of the above and considering the evidence adduced before this court, I find that it will be in the best interest of all the concerned that grant of letters of administration of the deceased’s estate be granted to Lucia Okinjo jointly with the objector Nicholas Ogutu.

17. The upshot is that the summons for revocation of the grant is meritorious and the same is allowed. I accordingly make the following orders: -

(a) The grant of the letters of administration interstate issued by the Resident Magistrate Court, Siaya on 14th November 1988 in Siaya RMCC Succession cause no. 69 of 1988 to Ochiel Mugoye Okumu is hereby revoked.

(b) That the title deed in respect of Land Parcel Number Central Alego/Komolo/628 in the name of Wilson Atinga Odhiambo be and is hereby cancelled and the said title deed do revert back into the joint names of Magdalina Akech w/o Abia ½ share and the objector Nicholas Ogutu ½ share.

(c) That the objector Nicholas Ogutu and Lucia Okinjo are appointed joint administrators to the deceased’s estate. That grant of letters of administration do issue forthwith to the two appointed administrators and the two do apply for confirmation of the grant in respect of the ½ share in respect of the deceased’s estate, Magdalina Okech w/o Abia without waiting for the six(6) months’ period to lapse.

(d) The objector is granted costs of the objection to be met by the petitioner.

DATED AND SIGNED AT SIAYA THIS 23RD DAY OF MARCH 2017.

J.A. MAKAU

JUDGE

DELIVERED IN OPEN COURT.

In the presence of:

Objector: In person - present

Mr. Ogondo for Interested Party

Petitioner: Present

Interested Party: Present

Court Assistants:

1. George Ngayo

2. Sarah Ooro

J.A. MAKAU

JUDGE