[2017] KEHC 6703 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT AT KISUMU

SUCCESSION CAUSE NO. 164 OF 2007

IN THE MATTER OF THE ESTATE OF

LIVINGSTONE OTIENO MAUKA (DECEASED)

BETWEEN

PHILISTER ANYANGO OKOTH ……........................... 1ST APPLICANT

JOSEPH ODUOR OTIENO …………………...............2ND APPLICANT

AND

WILSON OTIENO ODADI ………………….......................PROTESTOR

RULING

1. The late Livingstone Otieno Mauka of Simenya Sub-location, Ugenya in Siaya District died on 15th July 1998. The only substantial asset he left behind was a piece of land known South Ugenya/Simenya/411(Plot 411). After his death, the 1st applicant (‘’Philister”) and the respondent (“Wilson”), describing themselves as his wife and cousin respectively petitioned for grant of letters of administration intestate in Maseno Succession Cause No. 28 of 2005. A grant of letters of administration was issued on 24th August 2005 to both of them and upon application, it was confirmed and a certificate of confirmation issued on 4th July 2006 with both parties sharing Plot 411 equally.

2. The matter did not end there because Philister moved this court in this cause by a summons for revocation of grant dated 14th February 2007 to revoke the grant issued to her and Wilson because the grant was obtained and confirmed fraudulently and the proceedings used to obtain and confirm the same were defective in substance. She accused Wilson of failing to disclose material facts relating to the estate of the deceased and that the grant issue was obtained by means of untrue allegations of fact. The gravamen of her deposition in support of the application is that she never consented or participated in the purported administration of the deceased’s estate and that Wilson was not a beneficiary thereof.

3. While the matter was still pending, the 2nd applicant (“Joseph”) who is the son of the deceased, moved the court in Kisumu HC Misc. Succession Cause No. 8 of 2012 in which he sought to revoke the grant issued to Philister and Wilson and to cancel the subdivisions of Plot 411 arising from confirmation namely; Plot 506 and 507. The thrust of his deposition was that his interests and those of his siblings were never disclosed and that Plot 411 was the only asset of the estate hence the proceedings effectively disinherited him.

4. I commenced hearing the matter in Kisumu HC Misc. Succession Cause No. 8 of 2012 when it became apparent that there was a related application in Kisumu HC Misc. Succession Cause No. 8 of 2012. When I called for the file, it was clear that Ndung’u J., had revoked the grant issued in Maseno Succession Cause No. 28 of 2005 on 16th July 2015. Since there was still a live dispute and to deal with all the matters in dispute substantively, I appointed the Philister and Joseph as administrators on 31st October 2016 and directed that they file an application for confirmation.

5. The Summons for confirmation was filed on 19th January 2017. They applicants position was that Plot 411 belonged to the estate and proposed that it be divided into equal shares between Philister, Joseph and the deceased daughters; Judith Akinyi Otieno and Caroline Agola Otieno. The application was opposed by Joseph through his affidavit sworn on 1st February 2017. His position was that he purchased the property from Philister and with her consent they took out succession proceedings which entitled him to the property. Since I had taken oral testimony of the parties prior to the filing of the application for confirmation, the parties agreed to adopt the oral testimony, previous depositions and written submissions in support of their respective positions in the matter.

6. Wilson testified that he knew the deceased as a cousin and when he died, Philister approached him to assist her pay school fees for her children and in consideration she would sell to her part of Plot 411. They went before an advocate where the sale agreement was executed and she accepted the payments. He added that the Joseph witnessed the agreement. After the payment, the succession proceedings were commenced and after confirmation, he received the title in his name.

7. Philister told the court that Wilson was her neighbour. She denied that she ever entered into the sale agreement with Wilson to sell part of the land. She testified that she only went to him for assistance and she was given the sum of Kshs. 50,000/- which she is now ready and willing to refund to him and get back the parcel of land. In her depositions, she alleged that Wilson brought to her blank forms which she signed without the knowledge that she was signing away her deceased’s husband’s property. She denied that she ever sold to him the land. Joseph supported his mother and denied that he knew Wilson. He told the court that his mother told him that she was given some money by Wilson. He confirmed that part of the land remained in his mother’s name.

8. I have reviewed the evidence and although the Philister and Joseph denied that part of Plot 411 was sold to Wilson, the evidence suggests otherwise. There is an agreement dated 1st July 2005 between Philister and Joseph signed by them before an Advocate, Charles Onyango. At the material time, it is evident from the identity card of Joseph, he had reached the age of majority. According to the agreement, Philister acknowledged receiving part payment of Kshs. 50,000/- and the balance would be paid once Wilson obtained a title in his favour. After the agreement of sale was signed, the succession proceedings were commenced by both Philister and Wilson at Maseno Magistrate Court on 1st July 2005. On 12th September 2005, Philister received a part payment of Kshs. 6,000/- which she acknowledged in writing. On 4th July 2006, Philister acknowledged receipt of Kshs. 64,000/- from Wilson being the balance of the agreed purchase price. It is worth noting that the final acknowledgement was signed by both Philister and Joseph.

9. It is clear from the record that Philister consented to participating in the succession proceedings upto the time the grant was issued in favour of her and Wilson. After the grant was confirmed, the balance of the purchase price was paid and acknowledged by both Philister and Joseph. Taking the totality of the sale agreement and succession proceedings, I find and hold that Philister and then Joseph voluntarily and actively participated in the disposal of part of Plot 411 to Wilson. I reject the case by Philister and Joseph that Wilson misled them or acquired the property fraudulently. The admission by Philister that she received Kshs. 50,000/- from Wilson corroborates the fact that she entered into an agreement with him.

10. The applicants have relied on the provisions of section 82(b)(ii) of the Law of Succession Act (“the Act”) which provides that the holder of a grant of letters of administration has no power to sell and cannot transfer immovable property of the deceased before confirmation of the grant. They further argue that Wilson engaged in criminal activity contrary to section 45 of the Act which states in part, as follows;

45(1) Except so fat as expressly authorized by this Act, or by any other written law, or by the grant of representation made under this Act, no person shall, for any purpose, take possession or dispose of, or otherwise intermeddle with any free property of the deceased.

(2) Any person who contravenes 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 both fine and imprisonment ……

11. The applicants referred to the case of Re Estate of Veronica Njoki Wakagoto (Deceased) NRB HC Succession Cause No. 1974 of 2008 [2013]eKLR, Musyoka J., stated:

The effect of this is that the property of a dead person cannot be lawfully dealt with by anybody unless such person is authorized to do by law. Such authority emanates from a grant of representation, and any person who handles estate property without authority is guilty of intermeddling. The law takes a very serious view of intermeddling and makes it a criminal offence.

The learned Judge further held that:

It should be noted that even where a grant of representation had been obtained, the grant-holder has not power to sell any immovable asset before confirmation of the grant. The sale [in this case] was done in contravention of law. It amounted to criminal activity and should not be upheld by the law.

12. The respondent took a different position in the matter. He submitted that notwithstanding the provision of section 45 of the Act, the court had equitable jurisdiction to do justice between the parties under section 47 of the Act and Rule 73 of the Probate and Administration Rules. To support this proposition the respondent relied on the case of Margaret Wanjiku Kahuhu v Nyahangi Nguni and 2 Others NRB HC Succession Cause No. 2518 of 2010 [2014]eKLR. In addition, the respondent cited Re Estate of Thiongó Nginyanyu Muthiora NRB HC Succession Cause No. 2131 of 2011 [2013]eKLR to claim that an administrator cannot, in certain circumstance be guilty of intermeddling. In that case Musyoka J., held:

A personal representative who handles estate property in the manner enumerated above commits no wrong and he cannot be accused of intermeddling. When the respondent in this application handles the estate in the manner stated above he cannot be said to have intermeddled with the estate, since the estate vests in him. Section 45(1) of the Law of Succession Act is clear that a person holding a grant of representation who takes possession or disposes of the free property of the deceased person commits no offence.

13. I am firmly of the view that this court is also a court of equity and as I have found, both Philister and Joseph were complicit in disposing part of the property to Wilson. Wilson came to their assistance in their time of need and they both consented to dispose of the property to him. Both Philister and Joseph assisted Wilson navigate the legal process to acquire his title. They cannot turn around and rely on the law to assist them evade the consequences of their act. An applicant who seeks aid from a court of equity must come with clean hands and the court shall not aid the person extricate themselves from a situation entirely of their own making otherwise it will be assisting both Philister and Joseph perpetrate a fraud on Wilson. The provisions against intermeddling are intended to protect the estate and beneficiaries.

14. Following the findings I have made and in light of the fact that Plot 411 is no longer in existence, I find and hold that respondent is entitled to Plot 506 while Plot 507 shall remain in the name of Philister who shall hold it in trust for Joseph Oduor Otieno, Judith Akinyi Otieno and Caroline Agola Otieno. A certificate of confirmation shall issue accordingly.

15. I make no order as to costs.

DATEDandDELIVEREDatKISUMU this 30th day of March 2017.

D.S. MAJANJA

JUDGE

Mr Ogonda, instructed by Maxwell O. Ogonda and Associates Advocates for the applicants.

Mr Ogonji instructed Onsando, Ogonji and Company Advocates for the respondent/protestor.