[2004] KEHC 2429 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI

SUCCESSION CAUSE 213 OF 1998

PLISTER ONGIRO ONYUOL………………………APPLICANT/PETITIONER

Versus

GRACE AKINYI AMONDI……………………………………………RESPONDENT

RULING ON A PRELIMINARY OBJECTION TO THE APPLICATION BY WAY OF SUMMONS FOR REVOCATION OR ANNULMENT OF THE GRANT DATED 7TH MARCH 2001

Plister Ongiro Onyuol, the deceased mother filed the Summons seeking for revocation or annulment of grant issued to Francis Amolo Onyuol and Grace Akinyi Amondi on May 2000 on the following grounds interalia:

I) That the petition was gazetted in the Kenya Gazette on 7th April 2000 and the objector filed an objection on 5th May 2000 but the grant was issued.

II) The requisite Notice was not served upon the objector as set out in the rules III) Since her objection was never withdrawn the grant could not have issued.

IV) That the deceased died a bachelor and the co-administratix is a stranger to the family.

Before the above Summons was heard, the objector raised a preliminary objection on the following points which I will summarize here below:

a) That the Summons for revocation does not lie in law because the applicant had commenced this cause.

She filed the petition for grant of Letter of Administration with her husband, the late Zedekiah Onyuol and her son who is also a co-administrator.

She therefore cannot file an objection as she abandoned the petition which was compromised and settled by consent.

Secondly the issues raised in the Summons for revocation have already been dealt with by a ruling on 18th February 2000 which was another application for revocation by the Co-administrator. Thirdly counsel for the Administrator argued that the objector was duly represented in court when the consent order giving the grant to her co-petitioner was recorded and in essence that is an indication that she recognized the administrator as a widow. The estate having been distributed through the confirmed grant. Issues of the co-administratix not being a widow are issues that have already been determined.

The preliminary objection was opposed by counsel for the objector. He submitted that under Section 76 of the Law of Succession, read together with rules 44 of the P & A rules any interested party can make an application at any stage of the proceedings. The ruling of 18th February 2000 by Visram J. revoked the confirmed grant and ordered the petition to be gazetted under rule 7 (4) of the P & A rules. Since the grant was gazetted the objector filed an objection but the grant was reissued. However the grant cannot be confirmed in the face of an application for revocation. In this regard counsel submitted that the matter should go for a full trial as the objector was not party to the alleged consent. I have carefully gone through the file of pleadings, the pleadings themselves; the submissions that were done before my brother Justice Mbogori. There are certain issues that are not clear especially the issue of whether the applicant engaged the services of Ochola advocates was her petition withdrawn? It is clear that this objector in the Summons is one of the original petitioners for grant.

Two counsels were recorded as follows:

On 9th July 1998 before Aganyanya J. it was recorded that Ochola was for the petitioner and Amuga for the objector and the following order was recorded:

“By consent the names of the objector Grace Akinyi Omondi widow of deceased, be and is hereby added as one of the beneficiaries of the deceased estate.

Letter of Administration intestate to be issued to Grace Akinyi Omondi and Francis Amolo Onyuol jointly as Administrators of the deceased Estate” I have not been able to find a Notice of Appointment by counsel for the petitioner, to establish whether the current objector who was a co- petitioner had duly appointed the counsel who recorded a consent order on her behalf.

I have however seen a letter by M/s Lumumba & Ojwang Advocates dated 8th September 1998 complaining to the Registrar that the Letters of Administration were obtained through misrepresentation and fraud. This issue keeps cropping up and in my opinion it would be in the interest of justice that this matter be heard substantively to resolve all the outstanding matters and bring them to a logical conclusion. Accordingly I decline to uphold the preliminary objection and order that the summons for revocation dated 7th March 2001 do proceed to a full trial by way of oral evidence. That way the Administratix will be able to canvass all the issues she raised in her preliminary objection which issues are also very critical and the court will be able to determine the matter to finality, having heard both sides. Costs of this application be in the cause. It is so ordered.

Ruling delivered and signed on 21st May 2004.

MARTHA KOOME

JUDGE