[2022] KEHC 2956 (KLR)
The court found that the protest lacked merit as the respondent failed to provide credible evidence to disprove the applicants' status as beneficiaries or to establish his own exclusive entitlement. The applicants had been properly co-opted as heirs in place of the late Anjeline Akinyi. However, the summons for...
Source-derived case information.
- Citation
- [2022] KEHC 2956 (KLR)
- Parties
- Applicant: Isaiah Omondi Odhiambo; Respondent: George Owino Opondo; Interested Party: Jothan Godfrey Mulamba; Interested Party: Milton Humphrey A Akello
- Court
- High Court
- Court Station
- High Court at Busia
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 295 of 2012
- Procedural Posture
- Succession Cause / Ruling on Summons for Confirmation of Grant and Protest
- Outcome
- Protest dismissed; summons for confirmation of grant struck out as premature; liberty to file fresh summons within four months; costs to be shared.
- Judges
- JR Karanja
- Legal Topics
- Succession, Confirmation of Grant, Beneficiaries, Distribution of Estate
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Isaiah Omondi Odhiambo
Applicant
George Owino Opondo
Respondent
Jothan Godfrey Mulamba
Interested Party
Milton Humphrey A Akello
Interested Party
Procedural Posture
Succession Cause / Ruling on Summons for Confirmation of Grant and Protest
Legal Issues
- 1 Whether the protest by the respondent is sustainable to invalidate or overrule the proposed mode of distribution of the estate.
- 2 Whether the applicants are beneficiaries entitled to a share of the deceased's estate.
- 3 Whether the summons for confirmation of grant can be confirmed as proposed given the death of a named beneficiary.
Ratio Decidendi
The court found that the protest lacked merit as the respondent failed to provide credible evidence to disprove the applicants' status as beneficiaries or to establish his own exclusive entitlement. The applicants had been properly co-opted as heirs in place of the late Anjeline Akinyi. However, the summons for confirmation of grant could not be confirmed as proposed because part of the estate was to be distributed to Anjeline Anyango Akinyi, who was since deceased. The court held that a fresh summons for confirmation should be filed, accounting for the interests of Anjeline Anyango Akinyi or her survivors. The protest was dismissed, and the summons for confirmation was struck out as...
Court Disposition
Protest dismissed; summons for confirmation of grant struck out as premature; liberty to file fresh summons within four months; costs to be shared.
Orders
- The protest is dismissed for lack of merit.
- The summons for confirmation of grant is struck out and dismissed as premature.
Full Case Text
Judgment text and source record
27 paragraphs
Odhiambo v Opondo; Mulamba & another (Interested Party) (Succession Cause 295 of 2012) [2022] KEHC 2956 (KLR) (16 June 2022) (Ruling)
Neutral citation: [2022] KEHC 2956 (KLR)
Republic of Kenya
In the High Court at Busia
Succession Cause 295 of 2012
JR Karanja, J
June 16, 2022
N THE MATTER OF THE ESTATE OF OMONDI AJWALA alias OMONDI OJUALA (DECEASED)
Between
Isaiah Omondi Odhiambo
Petitioner
and
George Owino Opondo
Petitioner
and
Jothan Godfrey Mulamba
Interested Party
Milton Humphrey A Akello
Interested Party
Ruling
1. The application vide the summons for confirmation of grant dated July 12, 2021, is for confirmation of the grant issued to Jotham Godfrey Mulamba and Milton Humphrey Okello on the April 22, 2021 on the basis of the mode of distribution specified in paragraph 4 of the supporting affidavit.
2. However, George Owino Opondo, filed an affidavit of protest dated October 28, 2021, in which he implies that the applicants not being heirs and/or dependants of the deceased in any manner are not beneficiaries of the estate and ought not have any share in the distribution of the estate which should therefore be distributed wholly to himself as a brother of the deceased.
3. The issue for determination is whether the protest is sustainable for purposes of invalidating and/or overruling the mode of distribution of the estate as proposed by the applicants. The validity of the grant is not questioned or substantially questioned and does not therefore arise as an issue of determination. It would therefore follow that the allegations by the protestor that the applicants are not heirs of the estate rests on “quick sand”. In any event when this court ordered that the fresh grants be issued to the two applicants, it did so with the knowledge that the two applicants were co-opted into this matter in place of the late Anjeline Akinyi as heirs and beneficiaries of the estate of the deceased in their capacity as nephews of the deceased. The protestor has not availed any cogent and credible evidence to disprove the fact and cannot now oppose the distribution of the estate in the manner suggested by the applicants. He has also not provided satisfactory evidence to show and prove that he is actually a beneficiary of the estate in priority to the applicants or even to their exclusion for him to demand the entire portion of the estate property as his inheritance.
4. In the circumstances, the present protest is wanting on merit and clearly unsustainable. It is therefore dismissed but the summons for confirmation of grant may not be confirmed in the manner proposed by the applicants inasmuch as part of the estate is set to be distributed to Anjeline Anyango Akinyi, yet it is indicated herein that she is since deceased.
5. The summons must therefore and is hereby struck out and dismissed for being premature with the applicants having the liberty to take out fresh summons for confirmation based on a mode of distribution which shall cater for the interest of Anjeline Anyango Akinyi or those who survive her. In that regard, fresh summons be taken out in the next four (4) months from this date hereof.
6. The costs of the application and protest be shared by the parties respectively.
Ordered accordingly.J.R. KARANJAHJ U D G EDATED & DELIVERED THIS 16TH DAY OF JUNE 2022