[2022] KEHC 11334 (KLR)

Okeyo & 2 others v Okeyo & 2 others (Succession Cause 12 of 2018) [2022] KEHC 11334 (KLR) (12 May 2022) (Ruling)

Neutral citation: [2022] KEHC 11334 (KLR)

Republic of Kenya

In the High Court at Migori

Succession Cause 12 of 2018

RPV Wendoh, J

May 12, 2022

IN THE MATTER OF THE ESTATE OF ANDREA OKEYO ODONGO ALIAS ANDREW OKEYO ALIAS ANDREA OKEYO (DECEASED)

Between

Odongo Marke Okeyo

1st Applicant

Billy Okeyo

2nd Applicant

Moses Odongo Okeyo

3rd Applicant

and

Steve Omondi Okeyo

1st Protestor

Christabel Ouma Okeyo

2nd Protestor

John Miller Okeyo

3rd Protestor

Ruling

1. This cause relates to the estate of Andrea Okeyo Odongo alias Andrew Okeyo Odongo alia Andrea Okeyo (Deceased) who died intestate on 18/10/2012. This ruling is in respect to the petitioners’ application dated 12/3/2021.

2. At the heart of the dispute is L.R. No. Suna East/Wasweta/1/16961 (suit property). The petitioners’ claim was brought through an application dated 12/3/2021. They are seeking the following orders: -1. Spent.2. That pending the hearing and determination of this application one Hellen Odira Okeyo be restrained by this court from trespassing upon, wasting, building upon, interfering with or dealing with in any way whatsoever, by herself, her children, her agents or any person pleading her authority with L.R. No. Suna East/Wasweta/1/16961. 3.That one Hellen Odira Okeyo be ordered by this court to vacate L.R. No. Suna East/Wasweta/1/16961 and to remove the structures she had unlawfully erected upon that parcel of land, failure to which, the administrators be authorized to remove them, at the cost of Hellen Odira Okeyo.4. That this court be pleased to issue any further orders.5. Costs of the application be provided for.

3. The application is hinged on the grounds at the face of it and the supporting affidavit of Odongo Mark Okeyo, the 1st petitioner. In sum, the 1st petitioner claims is that the suit property has not been distributed but one Hellen Odira Okeyo without any color of right, authority or court sanction trespassed the suit property and erected a structure and continues to stay thereon.

4. Hellen Odira Okeyo filed a replying affidavit dated 20/4/2021 opposing the application. She deponed that she is the daughter of the deceased and the daughter of one Christabel Auma Okeyo the 2nd wife of the deceased, the 2nd protestor herein; that from the onset, she was never notified of the proceedings herein and she did not consent to filing of the succession cause; that as a daughter of the deceased she is entitled to a share of her father’s estate. She further deponed that her deceased father showed her where to stay and she has been living on the suit property since the year 2010.

5. Further, the deponent highlighted the various places the administrators and her own brothers live in the properties of the deceased and where they have built their own homesteads. She stated that the application is discriminatory as she is being ousted from land while the rest of the siblings enjoy peaceful possession.

6. The 2nd and the 3rd protestors filed a joint affidavit dated 26/4/2021. The 3rd protestor filed the affidavit on behalf of the 2nd protestor. The 3rd protestor stated that he is the eldest surviving son of the deceased and the son to the 2nd protestor who was the 2nd wife of the deceased; that the said Hellen Odira Okeyo is his sister and the 5th daughter of the 2nd protestor and the deceased; that Hellen Odira Okeyo is thus a beneficiary to the estate of the deceased; that the 1st petitioner is the son born of Temima Atieno Okeyo the 3rd wife of the deceased; that the 2nd petitioner is the son born of Mary Adhiambo Okeyo, the 4th wife of the deceased and the 3rd petitioner is the son of the 2nd protestor.

7. It was further deponed that in the P&A5 forms, the said Hellen Odira Okeyo was not disclosed as one of the beneficiaries of the estate of the deceased; that Hellen Odira Okeyo has been living on the suit property since the year 2010 together with her husband and children; that the administrators have not disclosed the existence of the suit property in the P&A5 form and in the summons for confirmation of grant dated 24/2/2020 in breach of the law; that the 2nd and 3rd administrators are living, cultivating for gain portions of land belonging to the deceased being L.R. Suna East/wasweta I/ 1583 and on which the deceased’s and many other beneficiaries’ homestead are situated even before the estate’s distribution; that due to Hellen Odira Okeyo being left out as a lawful beneficiary of the deceased, the protestors filed an affidavit of protest on 2/6/2020. The 2nd and 3rd protestors contend that they believe Hellen Odira Okeyo is being discriminated against because she is a woman.

8. The 1st protestor, Steve Omondi Okeyo, also filed a replying affidavit to the application. He deponed that Hellen Odira Okeyo is the daughter to the deceased; that she constructed the house even before the death of the deceased and there is no trespass as is being alleged; that it is the administrators who are intermeddling with the deceased’s estate and even collecting rent which they have never accounted for to date; that the 1st administrator is taking advantage of the other beneficiaries since he is an advocate; that the application has been brought in bad faith.

9. The 1st petitioner filed a reply to the 4th protestor’s affidavit of protest sworn on 24/5/2021 and the replying affidavit sworn on 24/4/2021. His reply is dated 20/9/2021. He denied that the said Hellen Odira Okeyo stays on the suit property; that at the time his father was dying, he had asked a buyer be sought for this particular property and indeed her own brothers John Miller and Moses Odongo did bring some buyers; that their deceased father asked that his sons be given preference in the purchase and one of his sons did a proposal but the sale did not materialize since he died; that before their father’s death, he divided his estate between the three households in equal shares and the protestor’s share and the persons she is alluding to are with their respective houses.

10. It was further stated that by the division, the deceased did not leave out the protestor and if she has issues with her household regarding the shares, of the estate that is where she should direct the same; that Hellen is a married woman and she has her home in Kadem, Migori County; that as per Luo traditions, their late father pointed out plots for the sons to build their accommodation; that Hellen was and is still married and living with her husband and their father could not have pointed to her the said land for settlement as she is alleging. There is nobody who has disinherited Hellen as she will get her rightful share in the estate as it was devolved by their father during their lifetime.

11. In a supplementary affidavit, dated 4/6/2021, the 1st petitioner answered to the affidavit of the 3rd protestor dated 26/4/2021. He stated that it was not true that Hellen moved in the subject property during the lifetime of their deceased father; that his father would not have asked the suit property to be sold if Hellen was living there; that none of the beneficiaries have put up permanent structures on any of the properties of the deceased as is being done by Hellen; that the mode of distribution is as per the wishes of the deceased; that the objectors have not come up with a proposed mode of distribution and even Hellen has not filed a response to the summons dated 12/3/2021. The protestors are derailing the completion of the succession process.

12. The administrators’ filed submissions dated 18/10/2021. They submitted that the suit property was to be sold but the sale aborted and instead the property was to be divided into three portions for the three houses. This evidence has not been rebutted by either Hellen Odira or John Miller Okeyo. The administrators also submitted that the averments of Hellen Okeyo can only be best addressed during cross - examination; that the pictures produced by the protestors as evidence of the houses were built by the sons of the deceased with the permission and authority of their father and the same cannot be used to justify the intermeddling of Hellen; that the administrators are seeking preservation of the subject property pending the distribution as directed by the deceased.

13. The respondent (Hellen Odira Okeyo) filed submissions dated 19/5/2021. She reiterated that like all her siblings, she has been living in the suit property since the year 2010 and she has put up her home where she is living with her family with the knowledge of the petitioners for a total of 11 years; that under Article 27 (1) of the Constitution 2010, she is entitled to an equal share in her father’s property. The applicants want to discriminate against her on grounds that she is a woman. She further relied on the provisions of Section 38 of the Law of Succession Act and submitted that the same outlaws discrimination.

14. It was further submitted that the applicant has brought this matter to the wrong avenue and should proceed to the Environmental and Land Court for issuance of orders he need. She relied on the cases ofRE: Estate of Solomon Ngatia Kariuki (2008) eKLR and RE: Estate of Paul Muhanda Agonya (2020) eKLR.

15. The 2nd and 3rd protestors also filed submissions dated 13/5/2021. They reiterated the contents of their affidavit and submitted that the applicant’s applications are discriminatory. They asked this court to refer to the case of Re: Estate of Patrick Ongaki Nyakundi (Deceased)(2021) eKLR. This matter had already reached the distribution stage and the court should proceed on the same. The applicant deliberately concealed the suit property yet they want Hellen Odira to be evicted from the same. They asked this court to dismiss the application dated 12/3/2021 with costs.

16. I have considered the rival positions taken by each party. It is not disputed that Hellen Odira Okeyo who shall be the respondent from now on, is the daughter of the deceased. The applicants allege that the respondent is on the suit property unlawfully and erecting a house there, yet the suit property is unadministered. It’s their position that their deceased father wished to have the said parcel sold, but since the same did not materialize, then it ought to have been divided between three houses. The unanimous position taken by the protestors and the respondent is that the respondent is rightfully on the suit property by virtue of being allocated the land by the deceased. She has been living on the suit property with her family for the past 11 years.

17. An issue of jurisdiction was raised by the respondent. She submitted that the orders being sought are best suited to be given in the Environment and Land Court (ELC). Jurisdiction as we know is the lifeline of any court and without it, a court cannot make another step. This was the finding by the court in the much-celebrated case of Owners of the Motor Vessel “Lilian s” vs Caltex Oil (K) Ltd(1989) KLR.

18. The applicants are seeking that the respondent be restrained from further interference of the suit property by putting up structures and at the same time remove any structures erected thereon.

19. In essence, the applicants are asking for injunctive orders against the respondent. One of the legal provisions cited by the applicants is Order 40 of theCivil Procedure Rules which provides for temporary injunction and interlocutory orders. The principles for granting injunctions are well spelt out in the case of Giella vs Cassman Brown, I do not need to re - invent the wheel.

20. The jurisdiction of the ELC court is well spelt out in Section 13 of the Environment and Land Court Act, 2012 as follows:-(2)In exercise of its jurisdiction under Article 162(2)(b) of the Constitution, the Court shall have power to hear and determine disputes— relating to environmental planning and protection, climate issues, land use planning, title, tenure, boundaries, rates, rents, valuations, mining, minerals and other natural resources;(b)relating to compulsory acquisition of land;(c)relating to land administration and management;(d)relating to public, private and community land and contracts, choses in action or other instruments granting any enforceable interests in land; and(e)any other dispute relating to environment and land.

21. Rule 63 of the Probate and Administration Rules provides for the application of Civil Procedure Rulesand High Court (Practice and Procedure) Rules. It states: -Save as is in the Act or in these Rules otherwise provided, and subject to any order of the court or a registrar in any particular case for reasons to be recorded, the following provisions of the Civil Procedure Rules, namely Order 5, rule 2 to 34 and Orders 11, 16,19, 26, 40, 45 and 50 (Cap. 21, Sub. Leg.), together with the High Court (Practice and Procedure) Rules (Cap. 8, Sub. Leg.), shall apply so far as relevant to proceedings under these Rules.”

22. The Law of Succession Act in section 47 provides for jurisdiction of the High Court in respect of matters falling under the Act as follows: -The High Court shall have jurisdiction to entertain any application and determine any dispute under this Act and to pronounce such decrees and make such orders therein as may be expedient.”

23. Rule 41(3) of the Probate and Administration Rules provides that:-Where a question arises as to the identity, share or estate of any person claiming to be beneficially interested in, or of any condition or qualification attaching to, such share or estate which cannot at that stage be conveniently determined, the court may prior to confirming the grant, but subject to the provisions of section 82 of the Act, by order appropriate and set aside the particular share or estate of the property comprising it to abide the determination of the question in proceedings under Order XXXVI, rule 1 of the Civil Procedure Rules and may thereupon, subject to the proviso to section 71(2) of the Act, proceed to confirm the grant.”

24. The facts of this case, I would say are intertwined. The suit property falls within the ambit of the Probate Court by virtue of the respondent claiming that she has been in occupation of the suit property for the past 11 years and this was the wish of her deceased father; while at the same time, there is an issue of the use and occupation of the suit property, which is ideally dealt with in the ELC Court.

25. However, Section 47 of the Law of Succession Act gives this court a wide berth to entertain applications relating to disputes under it. Rule 63 of the P & A Rules also provides that the provisions of Order 40 Civil Procedure Rules on injunctions apply to the law of Succession Act.

26. Rule 41 (3) of theProbate and Administration Rulesalso states that where there are questions on the share and identity of a person claiming to be beneficially entitled, then the court should determine the issue before confirmation of grant.

27. I am therefore of the considered view that this court is possessed of the jurisdiction to hear and determine the questions surrounding the suit property without necessarily referring it to the Environment and Land Court.

28. From a perusal of the pleadings and affidavits on record, it is clear that the deceased’s family is very divided as regards the suit land. Even if the matter comes up for confirmation, the administrators have not included all the beneficiaries of the deceased’s estate as is required by the law under Article 27 which provides for equality before the law and Section 71 of Law of Succession Act. All the children of the deceased sons, daughters, married or unmarried are beneficiaries to the estate unless they renounce their interests. Disclosure must be made of all the beneficiaries. I do agree with the applicants that the averments by the respondent will be best appreciated if subjected to cross - examination.

29. I also take note of the fact, which was not denied, that the subject suit land was not listed as one of the deceased’s assets. I have looked at the application for confirmation but no schedule for distribution is exhibited. One wonders how an order can be sought affecting property which is not listed as part of the deceased’s estate. Disclosure must be made of all the deceased assets and liabilities.

30. The summons for confirmation of grant dated 4/2/2020 is still pending. The 2nd and 3rd protestors filed a joint affidavit in protest dated 2/6/2020. There are also several replying affidavits. The first being a joint replying affidavit Eunice Adhiambo Ndegwa, Mary Awour Okeyo and Charity Achieng Okeyo dated 20/8/2020. The second being a joint replying affidavit by Lukio Otieno Nyachiro and Julius Okombo Onyalo dated 20/8/2020. The third being by Evans Okeyo dated 20/8/2020. The fourth by Samuel Okombo Ondiegi dated 20/8/2020. The fifth by Mark Odongo Okeyo dated 28/8/2020.

31. The respondent does not seem to have filed a response to the summons for confirmation of grant. To expedite this matter, unless the respondent decides otherwise her replying affidavit dated 20/4/2021 can be taken as her protest.

32. Having observed all the above, the following orders do issue: -i.Status Quo as at the time of delivering this ruling, be maintained on the L.R. No. SUNA EAST/WASWETA/I/16961 until the hearing and determination of the Summons for Confirmation of Grant dated 4/2/2020. ii.There shall be no further interference/wasting of the assets constituting the deceased’s estate which comprise of the estate of the deceased in whatsoever manner pending confirmation of grant.iii.The Respondent’s Replying Affidavit dated 20/4/2021 shall be taken as the ‘Affidavit in Protest.iv.All parties are at liberty to file further witness statements, Affidavits and lists of documents which may include a schedule for distribution.v.Any beneficiaries or parties who wish to claim from the estate of the deceased, should be served with the Summons for Confirmation of grant within seven (7) days of this ruling and are at liberty to file and serve any response if necessary within fourteen (14) days.vi.Being family, and in pursuant of peace parties are encouraged in so far as possible, to try and pursue on an amicable, out of court settlement and file any consent they may have.vii.Mention on 7/7/2022 to confirm compliance.

DATED, SIGNED AND DELIVERED AT MIGORI THIS 12TH DAY OF MAY, 2022R. WENDOHJUDGERuling delivered in the presence ofMr. Jura holding brief Mr. Okeyo for the Petitioners.Mr. Ojala for 1st Protestor.Mr. Odero for 2nd Protestor.Mr. Oywer holding brief Mr. Abisai for 4th ProtestorEvelyn Nyauke Court Assistant.