[2022] KEHC 570 (KLR)

Onyancha v Ogola (Succession Appeal 1 of 2019) [2022] KEHC 570 (KLR) (6 June 2022) (Ruling)

Neutral citation: [2022] KEHC 570 (KLR)

Republic of Kenya

In the High Court at Kisumu

Succession Appeal 1 of 2019

FA Ochieng, J

June 6, 2022

IN THE MATTER OF THE ESTATE OF FREDRICK OTIENO ADUMBO (DECEASED)

Between

Becky Nyanchama Onyancha

Appellant

and

Lydian Atieno Ogola

Respondent

Ruling

The application dated April 23, 2021 seeks an Order for the valuation of all the immoveable assets of the estate by a qualified and registered valuer, for purposes of computing 50% thereof, that is due to each of the parties. 1. The application is premised upon the Respondent’s alleged rejection of the Valuation Report which had been procured by the Appellant.

2. However, the Respondent has heaped blame upon the Appellant, for having acted in haste and unilaterally. According to the Respondent, she had extended an olive branch to the Appellant, giving specific proposals for the distribution of the estate. In her view, if the proposals had been accepted by the Appellant, the expenses connected with the process of valuation would have been avoided.

3. Noting that the Valuer who was engaged by the Appellant was now asking for his fees, in the sum of Kshs 261,050/=; and also that these further proceedings would give rise to more legal costs, the Respondent felt that the Appellant’s unilateral actions were diminishing the value of the estate.

4. I do appreciate the Respondent’s concerns, about the need to curb all unnecessary expenses.

5. But the Respondent did tell this Court that she does appreciate the utility of a Valuation Report. Therefore, the process of valuation, of itself, was not a waste of resources.

6. The Respondent’s concern was that the Appellant had not acted in concert with her, in engaging the Valuer. In the circumstances, the Respondent considers the Valuation Report herein as being illegitimate and invalid.

7. The Respondent urged the Court not to adopt the report as it was tainted with irregularity.

8. In the case of Lydia Atieno Ogola & Becky Nyanchama Onyancha v Gogni Rajope Construction Limited & another, ELR Cause No. E021 of 2020, Radido J. held as follows;“9. In terms of case law, where there are more than 1 administrator, they are expected to act together ……..10. Without the consent of the applicant and/or leave granted by the appropriate Court (if necessary and required), the instant proceedings have no legal legs to stand on.”

9. Whilst underscoring the importance of the two administrators working together, the learned Judge noted that;“13. The Court gave the parties time to attempt to settle the dispute out of court, but no agreement was reached ……..”

10. In her supporting affidavit, the Appellant made it clear that she caused the immovable properties to be valued. She then presented the Valuation Reports to the Respondent.

11. The Appellant told this Court that when the Respondent rejected the Valuation Reports, the Appellant requested her to undertake her own valuation, so that the Court could thereafter be called upon to give consideration to the 2 sets of reports.

12. In a logical sense, the Appellant’s proposal would aid in moving matters forward.

13. However, the said proposal is also an affirmation of the fact that the 2 administrators were not working together: which means that they were not paying need to the words of Radido J.

14. The Respondent has described the Appellant as “recalcitrant and incorrigible to the extent of taking actions in excess of her powers.”

15. According to the Respondent, she was ready and willing to sit around a table, to seek an amicable resolution. She therefore did not comprehend why;“Unfortunately, the Appellant has proceeded bullishly with litigation in the relentless pursuit of a poisoned chalice.”

16. From that kind of perception about the Appellant, I do understand why the 2 administrators find it difficult to act jointly. One person feels that the other is being obstructive; whilst the other person perceives the other as bullish.

17. It is an unfortunate situation, which I would have wished to have amicably resolved. But it is not the function of the Court to push reluctant parties to find an amicable resolution to their disputes. The Court has an obligation to determine issues raised in pleadings.

18. In this case, the trial Court has already made a determination. The High Court has also determined the appeal.

19. All that remains now, is the execution of the Judgment.

20. In my ruling dated September 20, 2021, I held inter alia as follows;“27. But if the Appellant were to seek the rectification of the certificate of confirmation of the grant, the court would undoubtedly tell her to seek such relief before the trial court."

21. The Respondent now suggests that the “proposal” now before Court requires re-evaluation.

22. I do tell the Respondent the very same thing that I told the Appellant. The decision of the learned trial magistrate is not up for re-evaluation in the application herein. As the Court did render its Judgment on the appeal; and because there is no new appeal before me, I cannot purport to re-evaluate the Certificate of Confirmation of the Grant.

23. Incidentally, the said determination is not a mere proposal as was suggested by the Respondent; it is a definitive adjudication by a court of competent jurisdiction.

24. The Respondent has deponed, unequivocally, that the Appellant was welcome to build her house on a portion of the land upon which the matrimonial house of the Respondent stands.

25. The said deposition is significant.

26. However, I do also emphasize that it is not because the Respondent has now said that the Appellant was welcome to utilize a portion of the land in question, that gives entitlement to the Appellant. It is the Certificate of Confirmation of the Grant which gives the parties, their respective shares: Each of them is entitled to a 50% share.

27. Although it might have been more practical, in my considered opinion, to have the parties share out the estate by sharing them equally, on the basis of the value of all the properties, unless the administrators can act together to appoint a Valuer, the properties may each have to be literally divided in half.

28. However, when there is a development, (such as the matrimonial house of the Respondent) standing on a portion of one parcel of the land, the literal division of the size of the said parcel of land would not yield a 50% division. I so hold because, (as the Respondent has acknowledged), the Appellant would still be required to build her house on her share of the land. The net result would be an inequality.

29. The Respondent is unwilling to accept the Valuation Reports presented by the Appellant.

30. In principle, the Respondent cannot be compelled to accept Reports that she distrusts.

31. Accordingly, I order that the assets constituting the estate be valued afresh.

32. In order to give effect to this order, the Respondent has 21 days to present to the Applicant, a List of at least 3 Registered Valuers.

33. Within 10 days of being given the said list, the Appellant will choose one of the listed valuers; and then the 2 administrators will jointly give written instructions to the chosen valuer.

34. If the Respondent fails to provide the list of Registered Valuers within 21 days, the Valuation Reports prepared at the instance of the Appellant, shall have constituted the Reports which will be used to give effect to the actual distribution.

35. If the Valuation Reports prepared by the agreed valuer, shall be within 20 – 30% range from the Reports already presented by the Appellant, the parties will equally share the costs of the 2 processes of valuation.

36. However, if any particular report has a variance that was in excess of 30% from the reports presented by the Appellant, the costs of the reports commissioned by the Appellant would be met by her.

37. As the orders herein are in a compromise between the positions taken by the parties, I order that each of them will meet their own costs of the application dated April 23, 2021.

DATED, SIGNED at DELIVERED at KISUMU This 6th day of June 2022FRED A. OCHIENGJUDGE