[2022] KEHC 11383 (KLR)

Okelo v Abongo (Succession Cause 401 of 2011) [2022] KEHC 11383 (KLR) (13 June 2022) (Ruling)

Neutral citation: [2022] KEHC 11383 (KLR)

Republic of Kenya

In the High Court at Kisumu

Succession Cause 401 of 2011

FA Ochieng, J

June 13, 2022

IN THE MATTER OF THE ESTATE OF VITALIS OWUONDO (DECEASED)

Between

John Okelo

Applicant

and

Godfrey Kwaka Abongo

Respondent

Ruling

1. The Applicant, Joseph Okello moved the Court through a Summons for the revocation of the Grant which the Court had issued to the Respondent, Godfrey Kwaka Abongo, on 7th February 2012.

2. The Applicant further sought the annulment or revocation of the Certificate of Confirmation of Grant which was issued on 22nd February 2021.

3. The basis upon which the Applicant sought those orders was that the Succession Cause herein was filed fraudulently and secretly, through the concealment of material facts.

4. According to the Applicant, the Respondent had intentionally left out other beneficiaries.

5. The Respondent told this Court that there had been no fraudulent concealment of any material facts. As far as he was concerned, the Applicant had consciously made a choice to stay away from these proceedings.

6. Indeed, prior to the institution of these proceedings, the father of the Applicant is said to have expressly insisted that he was;“….. not interested in being includedin the Chief’s letter as a beneficiaryof the estate of the deceased.”

7. Following the alleged categorical statement of the Applicant’s father, the Chief proceeded to issue the “introductory letter” to the Petitioner.

8. After the father of the Applicant passed away, the Petitioner allegedly approached the Objector/Applicant herein, and informed him about these proceedings.

9. However, according to the Petitioner, the response of the Applicant was that he had no interest in the estate of the deceased. The Petitioner’s case was that the Objector/Applicant’s lack of interest in these proceedings emanated from the instructions which the Objector had been given by his father.

10. Gordon Onyi Okora told this Court that he is a retired Chief of North Kisumu Location, and that it is he who had issued the introductory letter to the Petitioner.

11. Mr. Okora deponed that before issuing the said letter, he had called Gideon Okore Odida to his office.

12. Mr. Okora further said that he issued the introductory letter to the Petitioner, without involving Gideon Okore Odida, because Gideon had told him that he was not interested in the land of the deceased.

13. I have perused the record of the proceedings herein. I found the “Introductory letter” dated 26th April 2011, which was written by the Chief of North Kisumu Location. It is a letter addressed to the Registrar, High Court of Kenya, Kisumu.

14. In the said letter, the Chief indicated that Vitalis Owuondo Odum died before he married.

15. The Chief further stated that the deceased was survived by the following;“George Ajwang Abongo – 65 years – NephewGodfrey Kwaka Abongo – 51 years – Nephew”

16. It is common ground that both the Petitioner and the Objector were grandsons of Odum Ndisi; who was the father of Vitalis Owuondo, Charles Abongo and Gideon Okore.

17. In effect, the Petitioner and the Objector are cousins.

18. In relation to the estate of their uncle, Vitalis, who was not survived by either a wife or children, the two protagonists herein have similar rights. Neither of them has a right which precedes the other, in priority.

19. The 3 children of Odum Ndisi shared equally, the land which they inherited from him.

20. Neither the Petitioner nor the Objector would be allowed to re-open matters which appear to have been well settled by their fathers.

21. To my mind, the Petitioner’s assertion, concerning the lineage of the Objector is nothing other than an unfortunate afterthought. I so find because that would not be the explanation for the Petitioner’s earlier actions.

22. First, the Petitioner’s father had the Chief call the Objector’s father to the Chief’s office.

23. In his Witness Statement dated 27th September 2021, the Petitioner stated, inter alia, as follows;“The Chief, Gordon Onyi Okorathen summoned the Objector’s father,Gideon Okore Odida ………”

24. As the Chief Gordon Onyi Okora, called Gideon Okore Odida who the Petitioner recognized herein as the Objector’s father, I hold that it was not open to the Petitioner to thereafter allege that the Objector was not a son of Gideon.

25. In any event, after the demise of Gideon, the Petitioner also reached out to the Objector.

26. If the Objector did not have any legal claim to the estate of the late Vitalis Owuondo, (as the Petitioner now asserts), there would have been no need for the Petitoner to take the trouble of looking him up.

27. In my understanding, when a Chief or an Assistant Chief is called upon to provide an “introduction letter” for use when the Petitioner initiates a Succession Cause, his or her role is limited to providing information to the Court.

28. The Court would have no prior knowledge about the deceased, his or her family, or his assets and liabilities. Therefore, it is through the information provided by the Chief that the Court would, inter alia, get to know the nexus between the Petitioner and the deceased.

29. The Chief is deemed to be an independent source of information concerning the following;(a)Spouse or Spouses;(b)Children;(c)Parents;(d)Brothers and Sisters;(e)Other relatives, such as aunties, uncles, nephews and nieces.

30. It is not the role of the Chief to choose or to recommend the Administrator of the estate of the deceased. The authority to make determinations or issues appertaining to intestate and testamentary successions, and also with the administration of the estates of deceased persons, is vested in the courts.

31. The entitlement or otherwise of a person, to inherit is to be determined by a Court of Law.

32. In order to enable the Court make an informed decision, the Chief must provide the names of all the spouses, children and parents of deceased persons. If a child is deceased, but is survived by a spouse and children, that information ought to be made available.

33. The Chief should also provide the names of the brothers and sisters of the deceased.

34. In my considered opinion, the information which the Petitioner delivered to the court fell short of the requirements. He knew that the Objector and the father of the Objector had an interest in the property that had been left behind by the deceased. That is why the Petitioner had approached them, one after the other.

35. Whether or not the Petitioner had a fraudulent intention, to deprive the Objector of a share of the estate, it is not manifestly clear.

36. Nonetheless, the fact remains that some material information was withheld from the Court.

37. I find that if the Court had been provided with all the material information, there is a real possibility that the Court would have arrived at a different determination.

38. In the result, justice demands that the Grant issued on 7th February 2012 be revoked, as I now hereby do.

39. I further order for the revocation of the Certificate of Confirmation of the Grant which was issued on 22nd February 2021.

40. As regards costs, I order that each party should meet his own; I so order because this is a family dispute.

DATED, SIGNED at DELIVERED at KISUMU This 13th day of June 2022. FRED A. OCHIENGJUDGE