[2022] KEHC 14950 (KLR)

Olela v Odhiambo (Civil Appeal E049 of 2021) [2022] KEHC 14950 (KLR) (8 November 2022) (Judgment)

Neutral citation: [2022] KEHC 14950 (KLR)

Republic of Kenya

In the High Court at Homa Bay

Civil Appeal E049 of 2021

KW Kiarie, J

November 8, 2022

Between

Joseph Omondi Olela

Appellant

and

Moses Omondi Odhiambo

Respondent

(Being an Appeal from the ruling in Oyugis Senior Principal Magistrate’s SPMC Succession Cause No. 202 of 2020 by Hon. Celesa Okore – Principal Magistrate)

Judgment

1. Joseph Omondi Olela, the appellant herein, was aggrieved by the ruling of the trial court dated 4th June 2021. In the impugned ruling the objection application dated 24th February 2021 and a cross application for grant dated 22nd March 2021 were allowed.

2. The appellant therefore filed this appeal. He raised grounds of appeal as follows:a.That the learned trial magistrate erred in law and fact in entertaining a land dispute between parties who are not relatives in a succession matter.b.That the learned magistrate erred in fact and in law in failing to realize that since the deceased had several properties the administration of the same could not be handed over to a stranger to the estate whose only claim to right was over one of the properties of the deceased to the exclusion of the rightful heirs of the deceased.c.That the learned trial magistrate erred in law and in fact in failing to confirm the letters of Administration of the applicant and granting the same to the respondent who is not a relative or dependent of the deceased based on alleged agreement obtained in police station through fraud coercion and intimidation.d.That the trial magistrate erred in law and fact in not appreciating the issue whether the respondent was a bona fide Purchaser for value could not be a case in succession matter but in a separate land matter.e.That the learned trial magistrate erred in law and fact in finding the respondent as a bona fide purchase for value when he had 3 versions of an agreement.f.The learned trial magistrate erred in law and fact in acting on a defective and illegal agreement in succession proceedings which clearly had turned litigious.g.The learned trial magistrate should have advised the parties that since the parties are not relatives and the matter had turned litigious the same be referred to a land court.h.The decision is against the weight of evidence adduced.i.The learned trial magistrate erred in law and fact by leaving an open ended ruling against the applicant which subjected the applicant right to the properties of the deceased as secondary to the contested right of the respondent to own property.

3. The appeal was opposed by the respondent through the firm of Ochwangi & Company Advocates as baseless.

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 vs. Associated Motor Boat Co. Ltd.[1965] E.A. 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 appeal is in respect of the estate of Richard Olela Kinara alias Olela Kinara. He died on 4th April, 2003. He died intestate. The family filed Succession Cause at Oyugis Law Courts on 24th day of December, 2020.

6. According to the respondent, Moses Omondi Odhiambo, he entered into a sale agreement with Victor Okeyo Olela for land parcel number Kasipul/Kojwach Kamioro/1223. This was on 20th August, 2020. However according to an acknowledgment note dated 8th September, 2020 it was George Otieno Olela who acknowledged the final payment of Ksh.72,000/=. It is not therefore clear with whom the respondent herein entered into a sale agreement. Even if this was clear, it would not change the outcome of this appeal.

7. Section 45 of the Law of Succession Act provides:(1)Except so far as expressly authorized by this Act, or by any other written law, or by a grant of representation under this Act, no person shall, for any purpose, take possession or dispose of, or otherwise intermeddle with, any free property of a deceased person.(2)Any person who contravenes the provisions of this section shall—(a)be guilty of an offence and liable to a fine not exceeding ten thousand shillings or to a term of imprisonment not exceeding one year or to both such fine and imprisonment; and(b)be answerable to the rightful executor or administrator, to the extent of the assets with which he has intermeddled after deducting any payments made in the due course of administration.

8. It is therefore abundantly clear that whoever sold the parcel of land of the deceased did not have the capacity to do so. He had no title to pass. The action of the purported sale amounted to intermeddling with the property of the deceased.

9. The respondent herein has no claim against the estate of Richard Olela Kinara alias Olela Kinara. His claim can only be pursued with the persons who purportedly sold him the land.

10. Sections 35 to 40 of the Law of Succession Act provides as to who ought to apply to be an administrator where the deceased dies intestate. The respondent herein does not fall in any of the mentioned categories of people. It was erroneous therefore for the learned magistrate to make a stranger an administrator. Had the respondent purchased the property from the deceased, he would only have qualified as a beneficiary by way of purchase.

11. The upshot of the foregoing is that the appeal is allowed and the ruling dated 4th June 2021 and all the consequential orders are hereby set aside.

12. Costs of this application shall be borne by the respondent.

DELIVERED AND SIGNED AT HOMA BAY THIS 8TH DAY OF NOVEMBER, 2022KIARIE WAWERU KIARIEJUDGE