[2022] KEHC 3402 (KLR)

Obonyo v Ogwano (Miscellaneous Succession Cause 1 of 2022) [2022] KEHC 3402 (KLR) (4 May 2022) (Ruling)

Neutral citation: [2022] KEHC 3402 (KLR)

Republic of Kenya

In the High Court at Siaya

Miscellaneous Succession Cause 1 of 2022

RE Aburili, J

May 4, 2022

Between

Margaret Agut Obonyo

Applicant

and

Cosmas Sewe Ogwano

Respondent

Ruling

1. Although this file has a 2022 file number, the original cause was filed way back in 2011 vide Kisumu High Court Succession Cause No. 412 of 2011. Another Succession Cause was filed vide Ukwala SRM Succession Cause No 3 of 2012. This was forwarded to Kisumu for revocation of grant and it became Kisumu High Court vide P&A Cause No. 868 of 2014, which was later transferred to Siaya High Court becoming High Court Succession Cause No. 184 of 2016, upon the establishment of the High Court at Siaya.

2. The Petitioner is Cosmas Sewe Ogwano who vide Ukwala PM Succession Cause No. 03 of 2012, was on 14/8/2012 issued with grant of letters of administration intestate which grant was confirmed and issued on 30/1/2013 to administer the estate of the late Michael Oloo Onyiko in respect of Land Parcel No. North Ugenya/Doho/502 measuring 0. 6 hectares. The administrator was to be the sole beneficiary of that estate at 100%.

3. This Court observes that vide Green Card opened on 18. 1.1974, the registered owner of the land parcel No. Ugenya/Doho/502 measuring 0. 6 Ha was one Oloo Onyiko. Later on 16. 2.1974, a restriction was placed on the said title by the Chief Land Registrar until the appeal to the Minister was finalized on 15. 2.1989, that the restriction was removed vide Land Registrar’s letter dated January 19, 1989 after the stated appeal was dismissed.

4. The Register further shows that on 2. 7.2010, Cosmas Sewe Ogwano ID. No. 0257594 became the registered proprietor of the said parcel of land vide R.L. 7 and a Title deed was issued to him on the same day. However, on 9. 2.2011, a restriction was placed on the said title by Margaret Agut Obonyo claiming beneficiary’s interest.

5. Up to here, I observe that Cosmas Sewe Ogwano became the registered owner of the Parcel; of Land No. North Ugenya/Doho/502 on 2. 7.2010 vide R.L. 7 which is a registration by way of transmission, even without petitioning and obtaining a grant of letters of administration intestate in respect of the estate of Oloo Onyiko, the original owner of the said land. Oloo Onyiko, according to Death Certificate No. L.04300095/1 Serial Number 294221, died on 22/8/1993 aged 65 years old and the death certificate was issued on 29. 4.2010 before the transfer of the title was made to Cosmas Sewe Ogwano on 2. 7.2010.

6. Between 29. 4.2010 when Michael Oloo Onyiko died and 2. 7.2010 when his land was transferred to Cosmas Sewe Ogwano vide RL. 7, there is no evidence of any succession proceedings conducted in that span of two months.

7. Yet again, vide Gazette Notice of 6th July 2012 vide Succession Cause No. 3 of 2011 at Ukwala Law Courts through G.N. No. 9357, Cosmas Sewe Ogwano had petitioned for a grant of letters of administration of the estate of the late Michael Oloo Onyiko who died on 22. 8.1993.

8. The question I must ask is, how did Cosmas Ssewe Ogwano, notwithstanding his relationship with the deceased Michael Oloo Onyiko, obtain title to the land registered in the name of a deceased person before succession proceedings, then he proceeds 2 years later in 2012 to Petition for a grant to sanitize that title?

9. In the above stated Gazette Notice, the said Cosmas Sewe Ogwano had petitioned for a grant in his capacity as the nephew of the deceased Michael Oloo Onyiko.

10. Further history to this matter is that vide Kisumu High Court Succession Cause No. 412 of 2011, long after the said Cosmas Sewe Ogwano had obtained title to the said parcel of land and before any succession proceedings were commenced, he had cited Margaret Agut Obonyo as the appropriate administrator of the estate of the late Michael Oloo Onyiko and when she failed to appear, the court allowed the Citor, Cosmas Sewe Ogwano to take out letters of administration in respect of the estate of the late Michael Oloo Onyiko. That is what made Cosmas Sewe Ogwano to petition for letters of administration intestate to administer the estate of the deceased Michael Oloo Onyiko, on the strength of the order of 10th February 2012, made vide Kisumu High Court Succession Cause No. 412 of 2011. He then proceeded and petitioned vide Ukwala Succession Cause No. 3 of 2012.

11. As the law prevailing then did not allow the court issuing grant - if a subordinate court, to revoke the same grant, the record shows that vide Kisumu High Court Succession Cause No. 868 of 2014, Summons for revocation of grant issued vide Ukwala SRM Succession Cause No. 3/2012 was filed by Raphael Owino Ogwano.

12. In his supporting affidavit sworn on 6/12/2012 in Ukwala SRM Succession Cause No. 3/2012, the Petitioner Cosmas Sewe Ogwano deposed at paragraphs 3 and 4 that he was the only surviving dependent of the deceased and that the deceased did not have other dependants other than the Petitioner hence he was the sole beneficiary of the estate comprising North Ugenya/Doho/502. In the P&A form filed at Ukwala Law Courts, the Petitioner claimed to be the nephew to the deceased.

13. In the affidavit in support of Summons for revocation of grant issued to Cosmas Sewe Ogwano, the applicant/objector Raphael Owino Ogwano claimed that the grant as issued to the Petitioner Cosmas Sewe Ogwano was obtained either fraudulently and or through concealment from the court of material facts. He claimed that he was the son of the deceased Michael Oloo Onyiko and a dependant of the deceased. He annexed at paragraph 5 a letter from the Chief Ukwala location, dated 5/6/2014 Michael O. Osodo which stated that:“Raphael Owino Ogwano is a brother to Cosmas Sewe Ogwano. He is the immediate follower of Cosmas Sewe Ogwano.Raphael has been to our office claiming to be a beneficiary of land registration No. North Ugenya/Doho/502 and they being brothers his claim as a beneficiary is justified. He claimed that after severally requested(sic) his brother to include his name and then subdivide his portion his brother declined to do so. He is now requesting for assistance.SignedMichael O. OsodoChief, Ukwala Location”

14. Raphael Owino Ogwano also deposed that at the time Cosmas petitioned for a grant, Raphael was indisposed but that he never surrendered his right to benefit from part of the estate of the deceased. He annexed a copy of an agreement marked as ROO2 written in Dholuo with no translation in either Kiswahili or English, signed by himself and Cosmas Sewe Ogwano and Land Parcel North Ugenya/Doho/502 is stated therein. This court is unable to comprehend the substance of that “Agreement” between the two brothers as there is no translated version in either Kiswahili of English languages.

15. Raphael Owino Ogwano further deposed that Cosmas had now kicked him out of the said land which was his sole abode and that he had now been reduced into a pauper and a beggar.

16. That affidavit was sworn before Mr. Edwin Michael Ooro Advocate and Commissioner for Oaths. In April - date not given of 2014 but it was filed in court on 15/9/2014.

17. Later, vide a letter dated 14/11/2016 signed by both Raphael Owino and Cosmas Sewe, the two agreed to share the estate (land) parcel No. North Ugenya/Doho/502 equally with an access road being created leading to Matibabu Hospital and that should that land be sold, then the proceeds would be shared equally between the said two. The said letter which was taken to be a consent effectively settled the objection proceedings filed by Raphael Owino, following that consent being adopted by the Court on 23/11/2016.

18. At some point vide a Notice dated 10/5/2016, the matter was listed for dismissal as there was no application for confirmation of grant one year since the grant had been issued. That prompted the petitioner to appear in court on 23/11/2016 to seek for confirmation of grant following the consent dated 14/1/2014, which consent the court adopted as an order of the court and re-issued and confirmed the grant, while appointing the both Raphael Owino Ogwano and Cosmas Sewe Ogwano as the joint administrators of the estate of the deceased Michael Oloo Onyiko. It is that grant confirmed on 23/11/2016 which gave the estate of the deceased Michael Oloo Onyiko to Raphael Owino Ogwano and Cosmas Sewe Ogwano in equal shares as sole beneficiaries that has prompted these latest proceedings coming five years later, seeking to revoke that grant issued and confirmed on 23/11/2016.

19. Surprisingly, in these proceedings, although in the citation proceedings at Kisumu High Court, it was claimed that the Citee had not responded to the citation, an affidavit sworn by the Citee Margaret Agut Obonyo and filed on 5/7/2012 has been annexed to these proceedings, and in that affidavit, the Citee annexed a family tree showing that she was inherited by Michael Oloo Onyiko upon the demise of her husband Joseph Obonyo, his brother. She claimed that upon the demise of Michael Oloo Onyiko in 2010, Cosmas requested for Oloo Onyiko’s National identity card for him to assist the Citee only for him to go and have the land transferred in his name.

20. The same Chief, Ukwala location, Michael O. Osodo, wrote her an introductory letter addressed to the Deputy Registrar of this court dated 25/9/2017 annexing a family tree showing the relationship between Oloo Onyilo and Ogwano’s family.

21. Again, the same Chief Michael O. Osodo had vide a letter dated 31/5/2012 wrote a letter claiming that Margaret Agut Obonyo the widow of Obonyo Dhofu was the legal heir to the estate of Onyiko Oloo.

22. Now, according to her own affidavits and the sffidavit of her grandson Peter Owino Oloo, Margaret Agut Obonyo is said to be old and ailing. She has authorized her grandson Peter Owino Oloo to challenge the grant issued to Cosmas Sewe Ogwano and Raphael Owino Ogwano.

23. From the affidavit of Peter Owino Oloo, his father Obonyo Ndof was the brother to the late Michael Oloo Onyiko as their fathers were biological brothers. That Michael was not survived by any child and widow and that even when he remarried Margaret Agut after the latter’s husband died, they had no issues but lived together until Michael died and that Margaret Agut was in possession of personal documents of Michael Oloo Onyiko.

24. It was further deposed that Cosmas Sewe Ogwano is a far distant relative to Michael Oloo Onyiko hence it is impossible for Cosmas Sewe Ogwano to have been the sole surviving beneficiary and or next of kin of Michael Oloo Onyiko.

25. Further deposition was that on or about 10/1/2022, Cosmas Sewe had availed a purchaser to the suit land and was in the process of selling the above parcel of land when the Summons herein were lodged.

26. In paragraphs 21 and 22 of the affidavit of Peter Owino Oloo, it was deposed that the administrator had already had the title to the suit land transferred in his name as at the time that he was citing Margaret Agut Obonyo to petition for letters of administration and that he also petitioned for a grant without disclosing to the court those material facts. He deposes that Margaret Agut had the first right to petition for grant that is why Cosmas Sewe cited her in Kisumu High Court Succession Cause No. 412/2011.

27. A supplementary affidavit was filed on 24/3/2022 sworn by Margaret Agut Obonyo affirming the depositing by Peter Owino Oloo, her grandson.

28. Cosmas Sewe was served with the Summons for the revocation of grant issued and confirmed on 23/11/2016. On 25/1/2022, this court issued an order inhibiting any subdivision or registration of any transfer or subdivision of land parcel No. North Ugenya/Doho/502 until the Summons for revocation of grant issued is heard and determined. The court also issued directions on the disposal of the Summons for revocation of grant.

29. On 14/2/2022 the Respondent appeared through Mr. Mirembe Advocate holding brief for Madialo Advocate and informed the court that they had filed Notice of Appointment of Advocates and grounds of opposition. The same are on record and dated 7/2/2022.

30. In the said grounds of opposition, it is contended that the applicant cannot challenge the grant grounded on consanguinity alone without impeaching and or overturning the citation, as the grant was made upon the petition on the strength of permission by the High Court on the citation; that it is not available for the applicant to seek the orders sought via the Summons by pleading ignorance of the law by a deceased person who participated in the citation proceedings by entering appearance even if she failed to file further papers; that locus and right of inheritance by the applicant is not demonstrable and therefore a basis for granting of the orders sought has not been satisfactorily laid; and that the applicant and any other person on whose behalf or by whose authority he brings this application is guilty of laches as no satisfactory explanation has been offered to explain away their sitting late all this long if there was any right of theirs trespassed upon.

31. The application was to be canvassed by way of written submissions as per the directions given on 9/3/2022 and 25/3/2022. However, only the applicant filed submissions on 25/3/2022 reiterating the contents of the Summons for revocation of the grant dated 7/2/2022 and the two affidavits one sworn by Peter Owino Oloo and the supplementary affidavit sworn by Margaret Agut Obonyo.

32. Counsel for the applicant framed four issues for determination.(I)Whether the Respondent instituted citation proceedings against Margaret Agut Obonyo to file succession proceedings to the estate of Michael Oloo Onyiko

33. It was submitted in the affirmative and in addition, counsel submitted that that having been the case, then the Respondent did acknowledge that the applicant herein was closer in relationship and or in terms of the degree of consanguinity to the deceased Michael Oloo Onyiko and had a higher right than him to petition for grant to the subject estate and as the ultimate beneficiary.

34. Further submission was that being granted the right to file for succession is not a blank cheque to disinherit other rightful beneficiaries and or to do as he wishes with the estate of the deceased.

35. That the Respondent having cited the applicant, he should have obtained her consent prior to confirmation and distribution of the estate of the deceased, which he did not.(II)On whether sufficient cause has been shown by the applicant to enable and or persuade this honourable court to revoke the grant

36. It was submitted that the dispute herein has been long winding. Further, that Section 76 of the Law of Succession Act empowers this court to revoke a grant whether the same has been confirmed or not, if any of the grounds listed thereunder are satisfied.

37. In this case, the applicant submitted that the grounds advanced are defective proceedings leading to the issuance of the said grant and that the respondent is guilty of fraud and or making of false representation and concealment of material facts from the court.

38. Further submission was that right from Ukwala RM’s court to Siaya High Court, the Respondent had acted fraudulently and secretly and made false allegations which led to the issuance of the grant in his favour.

39. In addition, it was submitted that in the lower court, the Respondent variously described himself as a nephew, only dependant and sole person left surviving the deceased, the basis upon which he was issued with a grant and the same confirmed in his favour.

40. Further, that similarly in the High court, the Respondent and his deceased co-administrator Raphael Owino Ongwano made outright false depositions that the deceased Michael Oloo Onyiko had only two biological children who were Raphael Owino Ongwano and Cosmas Sewe Ong’wano, yet they knew that they were not the biological children of Michael Oloo Onyiko but of Ongwano Mahulo and that their biological father had 4 other children. That from the family tree supplied, the Respondent is far in relation to the deceased, which depositions by the applicant have not been controverted by the Respondent.

41. Further, that the Chief’s letter filed by the applicant confirms that Michael Oloo Onyiko married Margaret Agut Obonyo, upon the demise of his wife hence Margaret Agut Obonyo was the closest to the late Michael Oloo Onyiko at the time of his demise.

42. In addition, it was deposed that the applicant was bequeathed the said land at the time, by her deceased husband of inheritance and she continues to work and till the said land to date, which facts have not been controverted.

43. That in the absence of her husband Obonyo Ndhof who was the brother to Michael Oloo Onyiko, the applicant is the person entitled to petition for a grant and inherit the land in issue.

44. That the Respondent had other brothers and step brothers yet it was him and not the rest of his family members that sought to inherit the deceased’s property because his siblings knew that they are legally not entitled to that estate.(III)On what orders the court should issue, the applicant’s counsel urged this court to revoke the grant issued and confirmed in favour of the Respondent. She relied on the case of Michael Odhiambo Ayimba v Peter Otieno Ogutu Siaya High Court CA 41/2019 and Priscilla Vugutsa Kamaliki v Mary Runyanyi Ochieng [2016]eKLR.

Determination 45. As earlier stated, the Respondent did not file any submissions. However, his grounds of opposition are on record hence this court adopts them as filed to form the basis of the opposition to the summons for revocation of the grant as issued and confirmed on 23/11/2016 in his favour.

46. I have given the historical background to this long winding matter and dispute, considered the Summon for revocation of grant, supporting and supplementary affidavits and grounds of opposition as well as the written submissions as field by counsel for the applicant, Mr. Michael Edwin Ooro

47. In my humble view, the main issue for determination in this long winding matter is whether the applicant has demonstrated before this court that the grant issued to the Respondent Cosmas Sewe Ongwano and confirmed jointly in his favour and in favour of Raphael Owino Ongwano who is now said to be deceased, should be revoked.

48. The court’s power to revoke grants is donated by law by Section 76 of the Law of Succession Act, Cap 160 Laws of Kenya. I shall revert to that section later. Before doing so, I must first consider the question of who has the authority to petition for a grant of letters of administration intestate, in respect of the state of a deceased person. Under Section 66 of the Law of Succession Act, preference is given to certain individuals to administer a deceased person’s estate. The section also grants to the courts, discretion to determine persons to whom a grant of letters of administration intestate shall issue.

49. Section 66 of the Law of Succession Act provides:“When a deceased has died intestate, the court shall save as otherwise expressly provided, have a final discretion as 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 interest as provided by Part V;c.The Public Trustee; andd.CreditorsProvided that, where there is a trial intestacy, letters of administration in respect of intestate estate shall be granted to any executor or executors who prove the will.”

50. Part VII Rule 26(1) and (2) of the Probate and Administration Rules further gives guidance on making grants in the following terms:(1)Letters of Administration shall not be granted to any applicant without Notice to any other persons entitled in the same degree as or in priority of the applicant.(2)An application for a grant where the applicant is entitled in a degree equal to or lower than that of any other person shall, in default of communication, or written consent in Form 38 or 39, by all persons go entitled in equality or priority be supported by an affidavit of the applicant and such other evidence as the court may require.”

51. In the instant case, and from the material placed on record which have not been controverted, the deceased Michael Oloo Onyiko died intestate. He was the 1st paternal cousin to the husband of the applicant herein. He was not survived by any child or spouse. However, upon the demise of the husband to the applicant, The deceased Michael Oloo Onyiko inherited the applicant and lived with her as husband and wife. They were not blessed with any children. The applicant however, had her own children with her first husband cousin to the deceased Michael Oloo Onyiko, whose mother and the mother to the applicant’s husband were sisters and married to one man.

52. The Respondent in his petition for a grant, after obtaining an order through citation of the applicant herein, claimed that he was the nephew of the deceased Michael Oloo Onyiko. He however did not indicate whether he was a nephew from his mother’s side or his father’s side. Assuming he was a nephew of the deceased, it is expected that he explains how his parents were related to the deceased Michael Oloo Onyiko.

53. In his affidavit sworn on 6th December 2012, the respondent deposed that he was the only surviving dependant of the deceased and that no other dependant existed. This was not until his brother Raphael Owino Ongwano filed objection to confirmation of the grant that a consent was entered into, for purposes of confirmation of the grant and the two agreed to share the estate of the deceased equally. The brotherhood of the two was confirmed by the Chief’s letter dated 5/6/2014 yet it is the same Chief Michael O. Osodo who had issued the Respondent an introductory letter earlier on claiming that the Respondent was the sole beneficiary of the estate of the late Michael Oloo Onyiko.

54. Again, it is the same Chief who wrote the letter dated 28th September 2017 setting out the relationship between Michael Oloo Onyiko and the applicant herein and the fact that the wife of the said deceased Michael Oloo Onyiko one Lucia Ajuogo Oloo and their 2 children also died. He stated how the deceased and Ndhof Oloo were close cousins as their mothers were sisters married to the same man Oloo Futa, their grandfather also deceased. He annexed a family tree which clearly shows that the person who is more proximate to the deceased Michael Oloo Onyiko is the applicant herein and not the Respondent and his brother Raphael alias Lucas who are two among the nine sons of Ongwano son of Matulo.

55. From the above undisputed facts, there is no dispute that the applicant was remarried to Michael Oloo Onyiko her husband’s 1st cousin hence she became the surviving spouse of Michael Oloo Onyiko as the latter was not survived by any child, spouse or even a brother.

56. It is therefore clear that the applicant has demonstrated that she is more proximate to the deceased Michael Oloo Onyiko than the Respondent who cited her and obtained leave of court to petition for a grant. The above facts are not controverted by any affidavit from the Respondent. The burden shifted to the Respondent to disapprove the applicant’s case that she was the person entitled to petition and benefit from the estate of the deceased Michael Oloo Onyiko. He has not discharged that burden of disapproving those facts.

57. Although the Respondent in his grounds of opposition pleads laches and that the Respondent petitioned on the strength of a court order in the citation proceedings, I note that the applicant filed her response to the citation objecting to the citation orders sought by the Respondent against her but strangely, her Replying affidavit was missing in the citation file leading the court to grant the Respondent orders to petition, on account of default in opposing the citation. The Replying affidavit opposing the citation was sworn on 27/6/2013 and filed in court on 5/7/2012 accompanied by a Chief’s letter dated 31st May 2012 introducing the applicant herein as the surviving wife to the brother of the deceased and as the legal heir to the estate.

58. It is indeed disturbing to see how one and the same Chief Michael O. Osodo kept introducing different persons to the courts for purposes of succession proceedings over the same estate.

59. The above notwithstanding, the Respondent having cited the applicant herein to petition for grant, and having obtained leave to petition, it was expected that he should have notified the applicant of his intention to have the grant confirmed in his favour as the sole beneficiary of the estate. Had the Respondent done so, the applicant who was described as old and sickly, would have brought to the fore her interest in the estate of the deceased and the resultant grant would have taken care of those interests. (see Re estate of Moses Wachira Kimotho (deceased) Succession Cause 122 of 2022[2009] eKLR where the court pronounced itself on the significance of petitioners disclosing all material facts before a court of law while seeking letters of administration and confirmation thereof.

60. On the laches alleged by the Respondent, it is worth noting that the applicant has been described to be old, illiterate and sickly. Nonetheless, Section 76 of the Law of Succession Act does not give timeliness for seeking to revoke grants. The Section provides for circumstances or situations under which a grant may be revoked or annulled and stipulates as follows:“Revocation or annulment of grant76. 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;(d)that the person to whom the grant was made has failed, after due notice and without reasonable cause either—(i)to apply for confirmation of the grant within one year from the date thereof, or such longer period as the court order or allow;or(ii)to proceed diligently with the administration of the estate; or(iii)to produce to the court, within the time prescribed, any such inventory or account of administration as is required by the provisions of paragraphs (e) and (g) of section 83 or has produced any such inventory or account which is false in any material particular; or(e)that the grant has become useless and inoperative through subsequent circumstances

61. The Respondent’s justification for excluding the applicant from the succession proceedings is that he was granted orders by the court to petition for grant after citing the applicant who did not challenge the citation. However, as I have stated above after a thorough perusal of all the files relating to these long winding proceedings, the applicant filed a replying affidavit which went missing from the court file as at the time that citation order was being made yet the response in opposition to the citation was filed way before the order was made and the replying affidavit clearly set out the reasons why the applicant believed that she was the best suited person to petition for grant and inherit the estate of the deceased Michael Oloo Onyiko.

62. That being the case, it was incumbent upon the Respondent to comply with Rule 26 of the Probate & Administration Rules, to obtain consent from all the beneficiaries of the deceased’s estate before filing the petition as the order in the citation was not a catablanche for him to exclusively claim to be the sole beneficiary of the estate of the deceased to the exclusion of all others. There is also no evidence that the applicant herein had renounced her rights to the disputed estate hence she ought to have been notified of the filing of the succession cause so that she participates or elects not to participate by signing a renunciation.

63. In Jamleck Maina Njoroge v Mary Wanjiru Mwangi[2015]eKLR, the court discussed situations where a grant can be revoked as follows:“The circumstances that can lead to the revocation of grant have been set out in Section 76 of the Law of Succession Act. For a grant to be revoked either on the applicant of an interested party or on the court’s own motion there must be evidence that the proceedings to obtain the grant were defective in substance, or that the grant was obtained fraudulently by the making of false statement, or by concealment of something material to the case, or that the grant was obtained by means of untrue allegations of facts essential in point of law.”

64. In Albert Imbuga Kisigwa v Recho Kavai Kisigwa, Succession Cause No.158 of 2000, Mwita J added his voice on the guiding principles for the revocation of a grant when he observe quite correctly that:“(13)Power to revoke a grant is a discretionary power that must be exercised judiciously and only on sound grounds. It is not discretion to be exercised whimsically or capriciously. There must be evidence of wrong doing for the court to invoke section 76 and order to revoke or annul a grant. And when a court is called upon to exercise this discretion, it must take into account interests of all beneficiaries entitled to the deceased’s estate and ensure that the action taken will be for the interest of justice.”

65. I have carefully perused all the 5 files right from Ukwala SRM Succession Cause No. 3 of 2012, Kisumu High Court Succession Cause No. 412 of 2011 and Kisumu High Court Succession Cause No. 868 of 2014 as well as Siaya High Court Succession Cause No. 184 of 2016 and this Miscellaneous Succession Cause No. 1 of 2022.

66. As earlier started, I have also perused the affidavits sworn by the Respondent in those respective files and proceedings leading to the grant being issued in his favour and being confirmed jointly in his favour and in favour of his brother Raphael Owino Ogwano who is now said to be deceased. I have also read the various letters of introduction by the Chief, Ukwala location, Mr. Michael O. Osodo issued to both the Respondent and the applicant at different times, giving contradicting information on the status of the persons seeking to be allowed to petition for grant in respect of the estate of the deceased Michael Oloo Onyiko. It is clear to me that the Respondent failed to notify the applicant to participate in the succession proceedings after the citation.

67. On the other hand, there is no explanation why the applicant’s Replying affidavit mysteriously vanished from the citation file yet she had demonstrated her interest the estate of the deceased, for the court to determine on its merits in the event that there was any objection to her interests. No consent was obtained from her during the petition for grant or confirmation of the grant and neither did she renounce her interest in the estate of a man who had inherited her following her husband’s demise and who died leaving no child or other spouse or brother except herself.

68. There is no contrary evidence that the applicant qualifies to be the spouse of the deceased and therefore falling under Section 66 of the Law of Succession Act; more so the reason why the Respondent cited her to take out letters of administration intestate.

69. It is also clear that the respondent falsely swore affidavits claiming to be a sole dependent and only surviving beneficiary of the estate and therefore he lied to the Chief that he was the sole beneficiary of the disputed estate. Again, when the respondent’s brother Raphael Owino Ogwano popped up claiming a beneficial interest in the said estate, the respondent owned up and agreed to share the estate with Raphael.

70. There is evidence from the affidavit sworn by the applicant that the respondent had other brothers who have not even claimed a share in the estate and neither have they renounced their interests in the estate of the deceased because they know for a fact that they are not entitled to the said estate and therefore they do not want to make false claims.

71. Moreover, the Green Card referred to above for Title No. North Ugenya/Doho/502 subject of the estate herein shows that even before any succession proceedings were commenced whether by citation or petition, since the deceased Michael Oloo Onyiko died on 22/8/1993 and the first time proceedings regarding his estate were commenced into court was in 2011, on 2. 7.2010, Cosmas Sewe Ogwano, the Respondent herein became the registered owner/proprietor of the suit property forming the only asset of the estate, vide R.L7. RL7 is a Transfer by way of transmission after one has obtained a temporary grant for administration of the estate of the deceased, before confirmation of grant.

72. The question is, when did the Respondent obtain the authority and from whom, to be the Registered proprietor of the land belonging to the deceased by way of transmission before first obtaining a grant of letters of administration from a court of law?

73. This case unearths the decay that that exists in some Land Registries where, upon the demise of the proprietors of land, family members are disinherited by unscrupulous relatives who collude with those Land Registrars to transfer title to those relatives and sell such parcels of land or mortgage them to the exclusion of the bonafide beneficiaries and dependants, leaving them homeless.

74. The Respondent’s brother Raphael Owino Ogwano even went ahead and swore an affidavit lying that that the land parcel No. North Ugenya/Doho/502 was the only land that was his place of abode and a source of livelihood and that the Respondent herein had, on the basis of the confirmed grant gone ahead and transferred “my late father’s land known as North Ugenya/Doho/502 to himself thereby depriving me a place of abode and source of livelihoods.” And that, “I am now reduced to a beggar with no place of abode granted that my brother Cosmas Sewe Ogwano has kicked me out of the sole asset that I relied on and even gone ahead to state that I am trespassing on my late father’s property.”

75. Raphael also accused Cosmas of fraud and concealment of material information and acting in bad faith.

76. The respondent never challenged those false depositions on who owned the parcel of land or whose estate it was that Raphael, his brother was claiming. Instead, he went ahead and after both of them sacked their respective advocates on record, they signed a consent to share the estate equally. If this was the estate of their late father or uncle, why did they not involve or include all their other siblings, or give an explanation why those other relatives were not involved or interested in the estate?

77. All those questions raise serious doubts as to the legitimacy of the Respondent and his brother Raphael claiming to be beneficially entitled to the share of the estate of the deceased Michael Oloo Onyiko.

78. Furthermore, I have already identified a very grave wrongdoing on the part of the Respondent who swore false affidavits on their capacities and or status in the estate. In addition, the more grevious wrongdoing is where the Respondent fraudulently had himself registered as proprietor of the title to land parcel No. North Ugenya/Doho/502 belonging to the deceased on 2. 7.2010 before obtaining a grant of representation of the estate. That is not only fraudulent but criminal. He only went to court to sanitize the illegal and irregular acquisition of the estate of the deceased which position has not changed to date.

79. For all the above reasons, I have no hesitation in finding and I so find and hold that the grant of letters of administration intestate in respect of the estate of Michael Oloo Onyiko issued to the Respondent Cosmas Sewe Ogwano on 14/8/2012 and revoked on 23/11/2016 and reissued in favour of the Respondent and his brother (now deceased) Raphael Owino Ongwano on 23/11/32016 be and is hereby revoked on the grounds that the same was obtained through misrepresentation of facts, through fraud and concealment from court of material facts.

80. In reaching such holding, I am fortified by the decision in Re Estate of Moses Wachira Kimotho (deceased) Succession Cause No. 122/2002[2009] eKLR on the importance of disclosing all material facts before a court of law while seeking letters of administration and confirmation thereof and observed that:“I am certain that had the applicants been made aware of the application for the confirmation of grant by being served, they would have brought to the fore their aforesaid interest in the estate of the deceased and the resultant grant would have taken care of those interests. Further, had the Respondent been forthright and candid and included the applicants as beneficiaries of a portion of the estate of the deceased as purchasers for value, the court in confirming the grant would have taken into account their interest in the estate of the deceased. As it is therefore, the grant was obtained fraudulently by making of a false statement and or concealment from court of something material to the cause. The Respondent knew of the applicant’s interest in the estate of the deceased. She chose to ignore them completely in her petition of letters of administration intestate. She also ignored them completely when she applied for the confirmation of the grant.”

81. In the re estate of Julius Ndubi Javan (Deceased) [2018] eKLR , Gikonyo J stated and I concur that:“…in any judicial proceedings, parties make full disclosures to the court of all material facts to the case including succession cases.….non disclosure of material facts undermines justice and introduces festering waters into pure streams of justice. Such must, immediately, be subjected to serious reverse osmosis to purify the streams of justice, if society is to be accordingly regulated by law.”

82. In the instant case, just as was observed by Mrima J in the case of Re estate of Magangi Obuki (deceased) [2020]eKLR that:“I am satisfied that, there is ample evidence that the Respondent did more than just conceal material facts. He went further and misrepresented facts to the court in order to defraud the objector of their inheritance. The objector has demonstrated within the purview of Section 76 that the grant was fraudulently obtained and there was concealment of material facts and misrepresentation. It is therefore this court’s finding that the grant issued to the Respondent is a proper candidate for revocation…”

83. Having revoked the grant issued and confirmed in favour of the Respondent on 23/11/2019 on the grievous grounds stated, I further order that the Land Registrar at Siaya or Ukwala as the case may be, is hereby directed to cancel the transfer of Land Parcel No. North Ugenya/Doho/502 to the name of Cosmas Sewe Ogwano done on 2. 7.2010 and the same shall forthwith revert to the name of the deceased Oloo Onyiko (deceased) original owner thereof.

84. The Objector/Applicant Margaret Agut Obonyo is at liberty to apply for a fresh grant of letters of administration of the estate of the deceased Oloo Onyiko.

85. The Objector/Applicant shall lodge such petition for a fresh grant within 21 days of this order in view of her old age and poor health.

86. I make no orders as to costs.Final Orders:a)that the grant of letters of administration intestate in respect of the estate of Michael Oloo Onyiko issued to the Respondent Cosmas Sewe Ogwano on 14/8/2012 and revoked on 23/11/2016 and reissued in favour of the Respondent and his brother (now deceased) Raphael Owino Ongwano on 23/11/32016 be and is hereby revoked on the grounds that the same was obtained through misrepresentation of facts, through fraud and concealment from court of material facts.b.I further order that the Land Registrar at Siaya or Ukwala as the case may be, is hereby directed to cancel the transfer of Land Parcel No. North Ugenya/Doho/502 to the name of Cosmas Sewe Ogwano done on 2. 7.2010 and the same shall forthwith revert to the name of the deceased Oloo Onyiko (deceased) original owner thereof.c.The Objector/Applicant Margaret Agut Obonyo is at liberty to apply for a fresh grant of letters of administration of the estate of the deceased Oloo Onyiko.d.The Objector/Applicant shall lodge such petition for a fresh grant within 21 days of this order in view of her old age and poor health.e.I make no orders as to costs.

87. This file is closed.

88. I so order.

DATED, SIGNED AND DELIVERED AT SIAYA THIS 4THDAY OF MAY, 2022R.E. ABURILIJUDGE