[2022] KEHC 11277 (KLR)

Ondari & another v Ondari & 2 others (Succession Cause 393 of 2014) [2022] KEHC 11277 (KLR) (15 July 2022) (Judgment)

Neutral citation: [2022] KEHC 11277 (KLR)

Republic of Kenya

In the High Court at Mombasa

Succession Cause 393 of 2014

JO Nyarangi, J

July 15, 2022

Between

Arphaxard Rogito Ondari

1st Applicant

Nemuel Ondari Mongare

2nd Applicant

and

Joseph Ombaso Ondari

1st Respondent

Shem Magero Ondari

2nd Respondent

Benson Sindiga Ondari

3rd Respondent

Judgment

1. The deceased herein died intestate on April 28, 1995 while domiciled in Nairobi Kenya. According to form P and A 5 dated on August 28, 2014 and filed on September 15, 2014 the deceased was survived by;a.Shem Magero Ondari (son)b.Joseph Ombaso Ondari (son)c.Benson Sindiga Ondari (son)

2. The properties listed as comprising the estate were; MN/1/777 Nyali Mombasa and Majoge/Bokimonge/1564. Consequently, on 17th 2015, a grant of letters of administration intestate was issued to Shem Magero Ondari and Joseph Ombaso Ondari jointly.

3. Subsequently, on 11th September, 2015, they filed summons for confirmation of the grant. Vide a supplementary affidavit filed on 16th November, 2015, they (petitioners) proposed that the two properties vest on Joseph Ombaso Ondari absolutely. Accordingly, the grant was confirmed on 16th November, 2015 and issued on 24th November, 2015.

4. Later, through a summons for revocation or annulment of grant dated August 28, 2017, Arphaxard R. Ondari and Nemuel Ondari Mong’are sought orders that the grant of letters of administration intestate issued to Shem Magero Ondari and Joseph Ombaso Ondari on the 17th March, 2015 and confirmed on November 16, 2015 be revoked. The application is supported by averments contained in the affidavit sworn on August 28, 2017 by the petitioner who stated that as sons to the deceased they were not consulted nor was their consent sought.

5. They further stated that the grant was obtained through deceit and falsehood as the petitioners did not name the other beneficiaries who were entitled to ashare of the estate. They stated that the the deceased had four wives namely; Agnes Bosibori Ondari , Jane Nyabonyi Ondari, Ndawoni Ondari and Karen Moragwa Ondari all of whom are deceased. That in total, the deceased had eleven children and not three as claimed by the petitioners in their petition application. To support that position, they attached a letter from their area Assistant chief Riokindo sub-location which listed the deceased’s beneficiaries as;First housea.Agnes Bosbori ( deceased widow)b.Jemimah Ondari ( child )c.Caren Rasugu (child )d.Jospehine Ondari ( child )e.Shem Ondari ( child )f.Benson Sindiga (child)g.Lydia Ondari (child)Second housea.Nyabonyi Ondari (deceased widow)b.Joseph Ondari (child)c.Ruth Ondari (child)Third housea.Domina Ndawoni Ondari (deceased widow)b.Gloria Ondari (child)c.Arphaxard Ondari (child)Fourth housea.Karen Moragwa Ondari (deceased widow )b.Kornerious Oyunge Ondari ( child)

6. They dismissed the introductory letter from the chief Old town Mombasa comprising of only three beneficiaries as misleading.

7. They averred that there was a family agreement stating on how to share plot No. MN/1//777 Nyali equally amongst the five brothers but it was disregarded (see annexure “AN-8”.

8. In response, Lydia Ondari, a daughter to the deceased who lives in the USA swore an affidavit on 4th May, 2018 supporting the revocation application. She averred that the petitioners lied by stating that they were the only beneficiaries. She however stated that she had renounced her right to inherit the estate. It was her position that her father had expressed his wishes in form of a will during a meeting held at Oyunge’s house to the effect that plot MN/1/777 was to be shared equally amongst the five sons.

9. On 5th February, 2018, Shem Magero one of the administrators of the estate wrote a letter to the court confirming that he and his co-administrator had misled the court by indicating that the deceased had three beneficiaries while there were other children. He urged the court to revoke the grant issued on 17th March, 2015. He further requested the court to proceed and determine assets and liabilities of the estate before distributing the same in accordance with the law.

10. On 7th May, 2018, Ruth Oyunge, Jemimah ondari, Josehine Kwamboka, and Gloria Ondari all daughters to the deceased, filed individual affidavits supporting the revocation application. They however renounced their right over the estate and urged the court to distribute the property amongst the five brothers.

11. In reply, Joseph Ombaso Ondari swore an affidavit on 29th May, 2018 stating that the revocation application was mischievous, misleading and an attempt to besmirch his name and character. He stated that the deceased had only married 2 wives under Kisii customary law namely; Agnes Bosibori and Jane Nyabonyi. That Domina Ndawoni and Karen Moragwa were not married to him.

12. He listed his is siblings in terms of mothers as follows;a.Agnes Ondari - widow (deceased)b.Benson Sindiga (son)c.Shem Magero (son)d.Lydia Ondari (daughter )e.Jemima Ondari ( daughter)f.Karen Rasugu (daughter)g.Asenath Ondari ( daughter)h.Janet Ondari ( daughter )Jane Nyabonyi Ondari - widow ( deceased )a Joseph Ondari (son)b.Ruth Ondari (daughter)Domina Ndawoni (Tanzanian) (never married) (deceased)Arphaxard Ondari (son)Karen Moragwa (never married) (deceased)Nemuel Ondari (son)

13. He averred that the estate comprises of;a.L.RNo Majoge/Bokimonge /526-105 acresb.L.R Majoge/Bokimonge /1627-5. 5 acresc.L.R Maojoge /Bokimonge /1564-2. 0 acresd.LR/MN/1/77/Mombasa/ 100feet by 100 feet

14. He further stated that the said properties were allocated by the deceased before he died. That the 1st wife Agnes Bosibori who died 1991was given LR.Majoge/Bokimonge /526(10. 5 acres) with Shem, Benson and Nemuel as beneficiaries.

15. That the second wife Jane Nyabonyi who died in 1997 was allocated L.RN/1/777 Mombasa (0. 033 Ha) and LR No. Majoge/Bokimonge /1564 (2 acres) with Joseph Ombaso Ondari and Ruth Ondari as beneficiaries. He deposed that LR Majoge /Bokimonge/1564 is encumbered with a huge loan advanced to the deceased by the ICDC. That L.R No Majoge/Bokimonge /1627(5. 0 acres) was given to Arphaxard Ondari a child born by a Tanzanian woman friend known as Ndawoni. He claimed that it ws their father who brought Arphaxard to their home and introduced him as a son. That he was the one who educated him and took him to Britain where he is staying to date although he has erected a home on the land allocated to him.

16. Concerning Nemuel, he averred that he was a son out of a love affair relationship with Karen Moragwa. He claimed that Nemuel resurfaced the year 2017, 23 years after the death of their father and never attended his father’s funeral.

17. He further stated that the deceased settled Agnes Bosibori (1st wife) at her matrimonial house on Plot No Majoge/Bokimonge/526 measuring 10. 5 where she had tea bushes and 40 heads of dairy cattle.

18. That his mother Jane Nyabonyi the second wife to the deceased was a primary school teacher who lived in Mombasa with the deceased on Plot No MN/1/77 which they jointly acquired and developed and therefore a home he and the sister have lived in throughout their life time.

19. He confirmed that it was agreed between him, Shem and Benson that they petition for the grant in respect of MN/1/777 and Majoge/Bokimonge/1564 being his exclusive property and therefore did not concern the other siblings. It was his case that all beneficiaries were aware of the petition hence no concealment of material information. He denied that there was an agreement to share plot MN/1/777 equally. Touching on L.R.Kwale/Majoreni/123 he claimed absolute ownership and that it was never part of the estate.

20. On his part, Ben Sindiga filed a replying affidavit on 5th October 2018 listing the beneficiaries of the deceased as listed by Joseph Ombaso herein above.

21. According to Benson, before their father died, he had allocated his estate to his family members. He stated that, Majoge/ Bokimonge/526 measuring 10. 2 acres was for the benefit of Shem Magero, Benson Sindiga, Nemuel Ondari Mongare, and Zadekiah Oyunye (brother).

22. That Majoge/Bokimonge/1564 (2) acres was given to Joseph Ombaso Ondari and Majoge/Bokimonge/2253 (2 acres) to Arphaxard Regito Ondari. He averred that the only beneficiaries were the 5 sons to the deceased namely;a.Joseph Ombasob.Shem Mageroc.Benson Sindigad.Arphaxard Rogitoe.Nemuel Ondari

23. As to Kwale/ Majoreni/123 (89. 5), he proposed the property to be shared amongst all the children including daughters.

24. He further proposed that Plot No. Majoge/Bokimonge/526 be shared out between Shem Magero, Benson Sindiga and Nemuel Ondari as per the will of the deceased each getting two acres. That some portion out of the same property was to be allocated to Arphaxard Rogito, Joseph Ombaso and the deceased’s brother Zedekiah Oyunge. Concerning Majoge/Bokimonge/1564 (2 acres), the same was allocated to Joseph Ombaso.

25. It was deponed that Majoge/Bokimonge/ 2253 yet to be transferred from the seller was given to Arphaxard Rogito Ondari.

26. He deposed that MN/1/777 was bought and registered in the deceased’s name. That the deceased left a will indicating how he desired the estate to be shared out equally amongst the five brothers pursuant to the agreement signed at the home of their uncle oyunge.

27. Touching on Kwale property, it was averred that the property was bought by the deceased and registered in the name of Joseph, Shem and Benson to hold in trust for the rest of the family. In conclusion, he prayed for the grant to be revoked and the same to issue jointly to all brothers. In reply, Shem Magero swore an affidavit on 5th October 2019 supporting Ben Sindiga’s position.

28. As a rejoinder, Arphaxard Rogito and Nemuel Ondari, filed a supplementary affidavit sworn on September 26, 2018 confirming the list of assets comprising the estate as Majoge/Bokimonge/526,1564, 2253, MN/1/777/Nyali and Kwale /Majoreni /123.

29. They stated that Majoge/Bokimonge/526 was shared between the family of the deceased and Zedekiah Oyunge his brother. That Majoge/Bokimonge/2253 is yet to be transferred from the seller’s name and that Kwale /Majoreni/123 was held by Benson, Shem and Joseph in trust for the family. They basically supported the distribution arrangement proposed by Benson Sindiga.

30. Like the other sisters, Josephine Ondari swore an affidavit and filed the same on October 14, 2019 thus relinquishing her right over the estate. Equally, Lydia filed an affidavit on October 14, 2019 renouncing her right. They urged the court to share property No MN/1/777 between the five brothers equally.

31. During the hearing, Pw1 one Nemuel basically reiterated the content in his supplementary affidavit aforesaid. He maintained that LR Kwale/Majoreni/123 was held by Benson, Shem and Joseph in trust for the family. That their dad left a will for the five sons to share L.R Plot No MN/1//777 equally. He urged the court to share Majoge/Bokimonge/526 amongst the beneficiaries including Shem, Benson, Nemwel, Zedekiah brother to the deceased, Joseph and Arphaxard.

32. He stated that despite the demarcation of the property, Joseph and Arphaxard have not taken their share. He urged the court to nullify the grant and add his name as co -administrator.On cross examination, he admitted that L.R Majoge/Bokimonge/1564 has an outstanding loan (liability) amounting to Kshs 71 million.

33. Daudi Mogaka Oyunge(pw2) a brother to the deceased stated that the deceased was married to four wives. That LR no Majoge/Bokimonge/526 was given to the five sons and Zedekiah oyunge his brother. That plot no.1564 was given to Joseph Ombaso and no. 2253 to Arphaxard who has since constructed a home therein.

34. Regarding plot No 777, it was his evidence that the deceased wrote a will expressing his wishes on how the property was to be shared out. That sometime 2005, under his chairmanship, the family held a meeting and the children agreed on how to share the plot on which there is a house erected herein.

35. PW3 Job Oyunge adopted his witness statement and affidavit sworn on September 26, 2018 in which he stated that plot No Majoge/Bokimonge /526 measuring 10. 5 acres was ancestral land which was to be shared between the deceased and his brother Zadekiah Oyunge. He simply corroborated the testimony of Pw2 in so far as distribution of the estate was concern. He emphasized on the fact that plot No 777 Mkomani in Mombasa was to be shared out between the five sons of the deceased pursuant to the family meeting held the 2005.

36. On cross examination, he confirmed that the property known as Plot 777 Mkomani was acquired in 1968 and that the deceased and his wife Jane Nyabonyi used to stay there.

37. Pw4 Jameson David Obwogi Mogaka also adopted his averments contained in the affidavit sworn on September 26, 2018 which is a replica of the evidence tendered by PW1, Pw2 and Pw3.

38. On his part, Shem Magero Ondari (Rw1) adopted the content contained in his replying affidavit sworn on 26th September, 2018. He urged the court to distribute the estate amongst 13 beneficiaries. He also sought to be excused from being an administrator owing to his poor health. According to him, the deceased left a will indicating on how he wished his property shared out. He identified and produced a sketch purportedly drawn by the deceased on 7th October, 1992 showing how his property was to be distributed.

39. He stated that plot No.526(10. 2 acres) was given 2 acres each to Shem, Benson, Samuel and Zedekiah Oyunge. That L.R M/B/1564 (2 acres) was given to Joseph Ondari while plot No M/B/2253 (approx. 2 acres) was given to Arphaxard Rogito Ondari.

40. Concerning the most contested property 777 Mkomani, it was his position that the same was given to Joseph, Shem, Benson, Arphaxard and Samuel. Regarding Kwale property, he proposed the property to be shared out between all sons and daughters of the deceased.

41. He stated that plot.no. 526 had a loan of kshs 250,000 but the same was cleared by his sisters. Equally, L.R1564 had an outstanding loan with ICDC which has not been cleared yet the land was allocated to Joseph Ombaso but arrangements are being made on how to clear it. That plot No. 777 was family property where children of the deceased used to stay hence available for all to benefit.

42. He averred that the grant should be revoked and a fresh grant to issue to his four brothers jointly. He basically supported the position taken by the applicants. He however confirmed that, Kwale property is not registered in his father’s name but rather in the names of Shem Magero, Joseph Ombaso and Benson Sindiga allegedly holding in trust for the family.

43. On cross examination by Mr Opulu, he confirmed that plot No 2253 was given to Arphaxard Rogito who has established a house there. He further stated on cross examination that Shem, Benson , Samuel Nemuel and his uncle live in property No 526 where he occupies 2 and 1/4 acres, Nemuel 2 acres, Benson 2and 1/4 acres and their uncle Zedekiah 4 acres.

44. Regarding the loan accruing in respect of Plot No 1564, he confirmed that it has not been paid although it is piling up millions.

45. Concerning Kwale property, he confirmed that it was originally owned by three people him included but Joseph paid off the other two owners and therefore has no claim over the same.

46. Benson Sindiga Ondari, (Dw2) also adopted the content in his affidavit sworn on September 28, 2018 in which he basically corroborated the evidence of DW1. He stated that the property be distributed as per the will. On cross examination, he confirmed that he sold his interest in Kwale property to Joseph and that he had no claim.

47. He urged the court to nullify the grant and the property known as plot no MN/777 be shared to all beneficiaries that his share of 1/5 be given to Joseph as he has already benefited from it.

48. Jemimah Nyairo Ondari a daughter to the deceased adopted averments contained in her affidavit sworn on 7th May, 20118 in which she relinquished her right to a share. However, in court, she told the court that she wanted the court to sub- divide the estate to all children to the deceased and that Shem be the administrator. She associated herself with the testimony of Shem and Benson. She specifically demanded for a share from Kwale property. On cross examination, she stated that they can share liabilities.

49. Dw4 Caren Rasugu adopted her affidavit sworn on May 4, 2018 relinquishing her beneficial interest on the estate. However, when she testified in court, she changed her mind and claimed a share. She further stated that she was never consulted.

50. Dw5 -1st respondent Joseph Ombaso also adopted the content of his affidavit in reply sworn on 29th May, 2018. He confirmed that he was a son to Jane Nyabonyi a second wife to the deceased. He also confirmed that Agnes the 1st wife used to live in Kisii and had occupied L.R 526 with her children. That his mother had a home in LR M/B/1564 although she exclusively lived in Mombasa in a house she had built on Plot No 777 measuring 1/8 an acre. He claimed that he was the one who cleared a debt owed to the person who sold his father plot No. 1564. That Plot No 526 was allocated to Ben, Shem and Nemuel. He also stated that Alphaxard was allocated LR no. 2253 in which he has put up a house. According to him, each beneficiary is aware of his entitlement.

51. He stated that the sisters were not entitled to a share of the property. He further claimed that the L.R no.1564 had an outstanding loan to ICDC amounting to 99 million as at 27th May, 2019.

52. Regarding Kwale property, he confirmed that it was bought in his name, Benson and Shem but the two later sold their shares to him. He told the court that the grant herein was obtained in respect of plot No 1564 and 777 as those are the plots he was interested in.

53. He claimed that Plot No.777 was his mother’s matrimonial property. On cross examination by Mr Atancha, he admitted that he, Benson and Shem were listed as the only beneficiaries to the deceased and that it was a mistake. He further admitted that he did not obtain consent from all beneficiaries. He aslo told the court that MN/1/777 was sold by him at 25 million after confirmation of the grant which was issued in his name and Shem.

54. Having closed the respondent’s case, parties agreed to file submissions. However, only the 1st respondent filed submissions.

1st respondent’s submissions. 55. Through the law firm of Opulu advocate, the 1st respondent Joseph Ombaso filed his submission on July 16, 2021. Learned counsel submitted that prior to his death, the deceased had allocated his properties according to houses

56. It was counsel’s submissions that a court in exercise of its discretion does not have to revoke a grant even where a case under section 76 of the Law of Succession has been established. In support of this position, the court was referred to the holding in the case ofGrace Ngugi and 4 others v Nelson Ngugi Thuo & another ( 2015) e KLR where reference was made to the case of Kipkurgat Arap Chepsiror and others v Kisugut Arap Chepsiror and others Court Of Appeal Civil Appeal No 24 of 1991 expressing how the court declined to revoke the grant merely on the ground that the applicants’ names had been omitted from the list of beneficiaries/survivors.

57. Mr Opulu literally reiterated the averments contained in the replying affidavit of the 1st respondent in response to the revocation application. Counsel contended that the impugned grant was issued to Joseph ( 1st respondent ) Shem ( 2nd respondent and Ben ( 3rd respondent ) who later proceeded to have the grant confirmed with the only two listed properties i.e plot MN/1/777 and 1564 given to Joseph

58. Learned counsel dismissed the existence of any agreement to share plot No 777 amongst the five sons. It was counsel’s submission that the deceased bought Mombasa property with Jane and that while the deceased was in prison in Tanzania Jane who was a teacher singly developed the property. Mr Opulu claimed that Jane had ½ share interest over Plot No 777. That the property having been Jane’s matrimonial home since 1981 until she died in 1997 cannot be the subject of distribution to the rest of the family members except for Jane’s children.

59. According to Mr Opulu, the intestate estate has been allocated according to the law of succession and Gusii customary law. Counsel submitted that Arphaxard is a resident in the UK while Nemuel’s residence is unknown hence not fit to be administrators. In counsel’s view, Joseph and Shem are fit to be administrators of the estate.

Determination 60. I have considered the application herein, oral evidence by all parties and the 1stRespondent’s submissions. Issues that arise for determination are;a.Whether the applicants have met the threshold for revocation of the grant herein;b.Whether the deceased left a will;c.Who is entitled to which share of the estate.

61. Before I endeavor to determine issues No 1 and 3, I wish to address the allegation that the deceased left a written will. According to the petition filed on 15th September 2014 by Shem, Joseph and Benson (respondents) herein, the deceased died intestate.

62. However, in the application for revocation filed by the applicants on August 29, 2017, none of them mentioned that the deceased left a written will. The allegation that the deceased left a will was raised by Jameson Mogaka a witness who claimed in his affidavit sworn on September 26, 2018 that the deceased left a will drawn in 1992 which is a sketch dated 7th October, 1992 purporting to sub- divide some unspecified ground with dimensions named in Kisii language. The sketch has a signature purported to be that of the deceased.

63. Job Oyunge a brother to the deceased corroborated Mogaka’s allegation that the deceased left a written will in the name of a sketch map. Equally, Arphaxard the1st applicant herein made reference to the same sketch as a will executed by the deceased. Ben Sindiga (3rd respondent) also did make reference to the alleged will. Under section 11 of the Law of succession Act, a written will must meet the threshold of certain conditions stipulated as hereunder.“No written will shall be valid unless—(a)the testator has signed or affixed his mark to the will, or it has been signed by some other person in the presence and by the direction of the testator;(b)the signature or mark of the testator, or the signature of the person signing for him, is so placed that it shall appear that it was intended thereby to give effect to the writing as a will;(c)the will is attested by two or more competent witnesses, each of whom must have seen the testator sign or affix his mark to the will, or have seen some other person sign the will, in the presence and by the direction of the testator, or have received from the testator a personal acknowledgement of his signature or mark, or of the signature of that other person; and each of the witnesses must sign the will in the presence of the testator, but it shall not be necessary that more than one witness be present at the same time, and no particular form of attestation shall be necessary”.

64. In the instant case, the purported will (sketch map) has a sign of one person. It was not witnessed by at least two witnesses as required in law. No witness was called to confirm that he or she did witness the deceased sign the said will. The burden of proof squarely lies with the applicants. See Estate of Julius Mimano deceased (2019) e KLR.

65. Accordingly, it is my finding that the mandatory statutory requirements for execution of a valid will have not been met implying that the deceased died intestate.

66. As to whether the grant herein should be revoked, it is incumbent upon the applicants to establish the grounds stipulated under section 76 of the Law of Succession. According to the applicants; the grant was obtained through concealment of material information to the extent that there were other beneficiaries whose identity was not disclosed. Secondly, that the consent of those other beneficiaries was not obtained. Thirdly, that the respondents did not disclose all properties comprising the estate.

67. As stated above, before revoking a grant, a court must be guided by the statutory requirements under section 76 of the law of succession as well as the wider aspect of substantive justice. Section 76 of the law of succession Act does provide as follows;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.

68. Therefore, it is the duty of the applicants to establish the existence of any or all of the stipulated elements under section 76 before a grant can be revoked.

69. In the case of Jesse Karaya Gatimu v Mary Wanjiku Githinji ( 2014) e KLR the court had this to say;“the grounds upon which a grant may be revoked or annulled are thus statutory and it is incumbent upon any party making an application for revocation or annulment of grant to demonstrate the existence of any, some or all of these grounds, whatever the case may be”

70. Similar position was held in the case of Matheka and another v Matheka (2005) e KLR 455. In the instant case, both parties are in agreement that the applicants were children to the deceased besides other siblings who were not notified nor consulted. The respondents admitted the omission and pleaded the element of mistake. It is trite law that, the absence of consent from other beneficiaries to the estate is a ground for revocation of a grant. See Jacinta Wanja Kamau v Rosemary Wanjiru Wanyoike and another (2013) e KLR. In view of their admission, the grant herein is revoked.

71. According to the revocation application, the applicants did not seek to be appointed as co -administrators. In any event, Arphaxard the 1st applicant lives in UK hence cannot administer the estate from UK.

72. During his testimony, Shem (Pw1) told the court that he was not interested in being an administrator. Equally, none of the daughters ever prayed to be appointed as an administrator to the estate. In the circumstances, I am left with Benson, Joseph and Nemuel as the only people who can administer the estate.

73. For the above reasons stated, and in exercise of this court’s discretion under Section 66 of the law of succession, I am inclined to direct that a fresh grant do issue in the names of Joseph Ombaso Ondari, Nemuel Ondari Mongare and Benson Sindiga Ondari as co administrators.

74. Having resolved the issue of administrators, the next issue is, what properties constitute the estate and who is entitled to what. It is trite that failure to include some of the properties in the list of assets or by wrongly listing some properties which do not form part of the estate perse is not a ground to revoke a grant. Such inclusion or non-inclusion can be resolved by a mere application to rectify the mistake or error. See in the matter of the estate of Hellen Tito (deceased Mombasa succession cause No. 146 /07.

75. What then constitutes the estate herein? From the pleadings and the annexed registration of documents, the undisputed properties comprising the estate are as follows;a.L.R No. Majoge /Bokimonge/526b.L.R No. Majoge/Bokimonge/1564c.LR No. Manjonge/Bokimonge/2253d.LR No. MN/II/777(Mombasa)

76. There is however a disputed property known as Kwale/Majoreni/123 which is registered in the name of Joseph Ombaso. Some beneficiaries have laid claim over the same alleging that it was bought by the deceased and registered in the names of the respondents in trust for the family. However, Benson and Shem have no claim over the same according to their testimony in court. They admitted that they had sold their beneficial interest to Joseph Ombaso who is the sole registered owner currently.

77. Joseph Ombaso attached evidence of payment transactions and a transfer duly executed by Benson and Shem in his favor as the absolute owner. From these kind of evidence, the deceased did not own the property by the time he died hence it cannot form part of the estate.

78. Anybody claiming that the property is held by Joseph in trust for the family, he or she should approach the Land and Environment Court. A probate court is exclusively concern with probate matters and not land ownership disputes. In support of that holding, I am guided by the findings in the case of In re estate of the late Jonathan Kinyua Waititu (deceased) 2017) e KLR and in the re estate of Chacha Mwita Murimi (deceased ) (2022) e KLR. Accordingly, it is my finding that Kwale/ Majoreni/123 does not comprise the estate as of now unless the ELC is moved and makes a decision by which time parties will have the chance to seek review of the confirmed grant.

79. I will therefore deal with the issue on distribution of the 4 undisputed properties. As stated earlier, the estate does not have a widow. Only children are fighting over distribution of the property. There is no dispute that the deceased was a polygamous man having married four wives. There is no dispute either that the 1st house has 8 children, 1st house 2, 3rd house 1 and 4th house 1.

80. Where an intestate dies leaving a child or children but no spouse, Section 38 of the Law of Succession comes to play. For avoidance of doubt, the said section provides that;“Where an intestate has left a surviving child or children but no spouse, the net intestate estate shall, subject to the provisions of sections 41 and 42, devolve upon the surviving child, if there be only one, or shall be equally divided among the surviving children.”

81. In the circumstances of this case, parties had settled on their allocated parcels of land during the life time of the deceased. They have developed their respective properties by building thereon besides undertaking other agricultural activities like planting tea bushes. For instance, L.R M/B/526 was allocated to the first wife who also had a home until she died and got buried there. Her sons Shem and Benson plus Nemuel a son from the 4th wife have fully settled there and have no problem with that arrangement. Equally, the rest of the family members are agreeable to that arrangement. In view of the general consensus by family members, I will not disturb that position.

82. Equally, property LR Majoge/Bokimonge/1564 was allocated to Jane Nyabonyi mother to Joseph and Ruth who has no interest in the estate. Jane had a home on that property, died and was buried thereon. Both parties are in agreement save for clearance of an outstanding loan which parties agreed beneficiaries to bear their debts in respect of their property just as the first house cleared theirs worth kshs 20,000 in respect of Majoge/Bokimonge/526. Also, I do not wish to interfere with that arrangement subject to payment of the debt being a loan outstanding in favour of ICDC by the estate.

83. Regarding Majoge/Bokimonge/2253, the same was allocated to Arphaxard Ondari during the life time of the deceased. He has also built a house on the same property although he stays in UK. All beneficiaries are also in agreement to that arrangement. Accordingly, I will not interfere with that agreement.

84. As stated earlier, the property referred to as M/B/1627 which Joseph said was given to Arphaxard, there is no proof that the land does exist and that it belonged to the deceased. I will therefore not distribute the same until such evidence is tendered in which case the grant shall be reviewed for inclusion.

85. According to the agreed allocation and mode of distribution of the mentioned properties, daughters were left out. In their respective affidavits in response to the revocation application, they all renounced their rights. Although Jemima and Caren later orally changed their minds in court, the same is not of any effect. I think this is an afterthought and an abuse of the court process intended to frustrate the entire process. I will therefore take the position that they had renounced their inheritance. With that in mind, I am left with only five beneficiaries who are the sons namely; Benson, Joseph, Arphaxard, Nemuel and Shem.

86. Out of the four properties identified as comprising the estate, only plot No 777/1/MN is vehemently contested. This is because, it is a prime land by virtue of its location in an upmarket area within Nyali estate. According to Joseph, that property was exclusively given to his mother Jane Nyabonyi, who had lived there from 1981-1997 when she died. He referred to the property as his mother’s matrimonial home. Mr Opulu urged the court to recognize the proprietary interest of the late Jane as ½ in respect of that property.

87. From Joseph’s claim and his counsel’s submission, he seems in my understanding to be advancing his late mother’s matrimonial beneficial rights over the property. Whereas Jane may have contributed towards the development of that property, she did not realize her rights when she was alive.

88. If Jane were alive today, she could definitely have benefited first by getting ½ share of the property to her exclusive benefit and then as a widow under section 40 of the Law of Succession Act as a beneficiary of her husband’s ½ share which would then form part of the estate. In the circumstances, the wisdom of the court of appeal in the case of Esther Wanjiru v Mary Wanjiru Githatu ( 2019) e KLR where such arrangement is applicable cannot apply in this case.

89. Since Jane is not alive, her son Joseph cannot plead her case by claiming the entire property nor half. As it stands, the property remains part of the deceased’s estate (property) and not Janes’s property. To that extent, section 38 of the Law of succession Act applies. Issues regarding a meeting held on 2005 distributing the property is irrelevant as it amounted to intermeddling with the estate which is a criminal offence. Accordingly, the property shall be distrusted equally amongst the five sons mentioned above.

90. As regards the claim that the property was sold, nobody came on board as an interested party to claim his rights. In any event, the sale if any based on nullified grant cannot be sustained.

91. In conclusion therefore , I am inclined to direct as follows;1. The application for revocation herein dated August 28, 2017 is allowed and the grant issued on March 17, 2015 to Shem Magero Ondari and Joseph Ombaso Ondari and confirmed on November 16, 2015 is revoked.2. That a full grant shall issue in the names of Joseph Ombaso Ondari , Benson Sindiga Ondari and Nemuel Ondari Mongare as joint administrators.3. i)That the heirs or beneficiaries of the estate shall be;ii)Joseph Ombaso Ondariiii)Shem Magero Ondariiv)Benson Sindiga Ondariv)Arphaxard Rogoto Ondari4. That the estate herein as identified comprises of;i)LR Majoge/Bokimonge/526 to be shared amongst Shem Mangero Ondari ( 4 acres) Benson Sindiga Ondari ( 4 acres) and Numuel Ondari (2. 5 acres)ii)LR Majoge/Bokimonge/1564 to Joseph Ombsao Ondari absolutely.iii)LR Majoge/Bokimonge/2253 to Arphaxard Rogito Ondari absolutely.iv)LR MN/1/777 Mukomani to be shared equally between Joseph Ombaso Ondari, Shem Magero Ondari, Benson Sindiga Ondari, Arphaxard Rogito Oondari and Numuel Ondari Mongare.

92. In view of the above directions, I am fully alive to the fact that L.R Majoge/Bokimonge/1564 allocated to Joseph has a huge debt (loan) to ICDC which must be cleared by the estate before the above orders/ directions can take effect. It is a liability upon the estate to which the administrators have either to negotiate with ICDC to write off the debt in full or partially and in default, value the entire estate and pay the debt first and then have the balance of the entire estate shared out equally amongst the five identified beneficiaries in place of the above distribution arrangement .This is meant to cushion Joseph from carrying the loan burden alone.

93. For avoidance of doubt, the grant is hereby confirmed and the estate shared out as directed above. However, no certificate of confirmation of grant shall be issued before the outstanding loan is cleared. As I pen off, it is my advice that parties do cooperate if the distribution process is to be finalized. Regarding costs, each party to bear own costs.

DATED, SIGNED AND DELIVERED VIRTUALLY AT MOMBASA THIS 15TH DAY OF JULY,2022J. N. ONYIEGOJUDGE