[2022] KEHC 16314 (KLR)
The court found that the respondent was a daughter of the deceased and was not included as a beneficiary in the petition for grant of letters of administration. This omission constituted concealment of a material fact. The trial magistrate was therefore justified in revoking the grant. The appellate court, after...
Source-derived case information.
- Citation
- [2022] KEHC 16314 (KLR)
- Parties
- Appellant: John Odhiambo Nyambalo; Appellant: Joseph Ojiro Nyambalo; Respondent: Mary Apata
- Court
- High Court
- Court Station
- High Court at Homa Bay
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal E080 of 2022
- Procedural Posture
- Civil Appeal / Judgment
- Outcome
- appeal dismissed
- Judges
- KW Kiarie
- Legal Topics
- Revocation of Grant, Concealment of Material Facts, Beneficiary Exclusion, Costs in Succession Matters
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
John Odhiambo Nyambalo
Appellant
Joseph Ojiro Nyambalo
Appellant
Mary Apata
Respondent
Procedural Posture
Civil Appeal / Judgment
Legal Issues
- 1 Whether the trial magistrate erred in revoking the grant of letters of administration due to concealment of material facts.
- 2 Whether the exclusion of the respondent as a beneficiary justified revocation of the grant.
- 3 Whether costs should have been awarded in a family succession matter.
Ratio Decidendi
The court found that the respondent was a daughter of the deceased and was not included as a beneficiary in the petition for grant of letters of administration. This omission constituted concealment of a material fact. The trial magistrate was therefore justified in revoking the grant. The appellate court, after evaluating the evidence and the law, concluded that the appeal lacked merit and upheld the lower court's decision. Costs were awarded to the respondent, but only against the 2nd appellant, as the 1st appellant did not lodge the appeal.
Court Disposition
appeal dismissed
Orders
- The appeal is dismissed with costs to the respondent, to be borne by the 2nd appellant.
Full Case Text
Judgment text and source record
26 paragraphs
Nyambalo & another v Apata (Civil Appeal E080 of 2022) [2022] KEHC 16314 (KLR) (14 December 2022) (Judgment)
Neutral citation: [2022] KEHC 16314 (KLR)
Republic of Kenya
In the High Court at Homa Bay
Civil Appeal E080 of 2022
KW Kiarie, J
December 14, 2022
Between
John Odhiambo Nyambalo
1st Appellant
Joseph Ojiro Nyambalo
2nd Appellant
and
Mary Apata
Respondent
(Being an Appeal from the ruling and order in Mbita Senior Resident Magistrate’s SRMCC No.4 of 2016 by Hon. Nicodemus N. Moseti –Senior Resident Magistrate)
Judgment
1. On September 14, 2022 Hon Nicodemus N Moseti allowed an application for revocation of grant after making a finding that the petitioner was guilty of concealment of material facts.
2. The appellants were aggrieved by the said ruling and filed this appeal. They raised the following grounds:a.The learned magistrate erred in law and in fact by entertaining an application petition for revocation of letters of administration and confirmation of the same over the estate of the deceased Jeconiah Nyambalo Odindo on L R No Rusinga/Waware/2185, 1596, 1590, 1297 and 1837 Plot No 4’A’ at Mbita measuring (50 x 100) ft. and 1A at Mbita measuring (50 x 100) ft. and failing to give proper direction on the same.b.The learned trial magistrate erred in law and fact by not bringing cognizant of the procedure in law [sic] where petition for letters of Grant [sic] has been filed and that order of precedent for such petition.[sic]c.The learned trial magistrate erred in law and fact by awarding costs in a family matter where everybody is a beneficiary by not considering the fact that the petitioner had spent a lot of money and time just to assist the family benefit.
3. The appeal was opposed by the respondent through the firm of Nyakwamba & Company Advocates on the following grounds:a.That the decision was well founded on evidence and on correct principles of law of succession.b.That the appeal lacks merit.
4. This court is the first appellate court. I am aware of my duty to evaluate the entire evidence on record bearing in mind that I had no advantage of seeing the witnesses testify and watch their demeanor. I will be guided by the pronouncements in the case of Selle v Associated Motor Boat Co Ltd [1965] EA 123, where it was held that the first appellate court has to reconsider and evaluate the evidence that was tendered before the trial court, assess it and make its own conclusions in the matter.
5. The respondent herein contended that she was a daughter of the deceased Jeconiah Nyambalo Odindo in respect of whose estate this appeal concerns. This fact was conceded to by the appellants and their witnesses.
6. Upon my perusal of form P & A 5, I have established that she was not included as a beneficiary. The learned trial magistrate was therefore justified to revoke the grant.
7. I therefore find that the appeal lacks merit. I accordingly dismiss it with costs to the respondent.
8. John Odhiambo Nyambalo informed the court that he did not appeal. Upon my perusal of the record, I have confirmed that the appeal was lodged by Joseph Onjiro Nyambalo, the 2nd appellant. He (2nd appellant) will bear the costs.
DELIVERED AND SIGNED AT HOMA BAY THIS 14THDAY OF DECEMBER, 2022KIARIE WAWERU KIARIEJUDGE