[2020] KEHC 1727 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT HOMA BAY

MISC. CIVIL APPLICATION NO.10 OF 2018

IN THE MATTER OF THE ESTATE OF: PETER OBUDHO OKECH...DECEASED

QUINTER ADHIAMBO OKECH...............................................APPLICANT

VERSUS

JOHN ODHIAMBO OKECH...................................................RESPONDENT

RULING

[1]The deceased, Peter Obudho Okech, passed on at the age of fifty five (55) on the 3rd February 2009 and grant of letter of administration in respect of his estate was granted on the 3rd April 2009 to John Odhiambo Okech (respondent) and Quinter Adhiambo Okech(applicant).

The estate comprised of a parcel of land described as LP No. Kanyada/Kanyango Kalanya/3149, which was wholly transmitted to the respondent as per the certificate of confirmation of grant issued to him on the 3rd December 2013, by the magistrate’s court at Homa bay.

However, on the 23rd May 2018, approximately five (5) years after the confirmation of the grant, the applicant took out summons for revocation of the grant on grounds set out in the summons which mainly indicate that the grant was obtained by fraud and by concealment of material facts such that the applicant as the second wife of the deceased and other beneficiaries were omitted as such in the confirmation certificate.

It is the applicant’s prayer that the grant, in particular, the certificate of confirmation of grant be revoked with all that appertains thereto.

[2]The respondent opposed the application on the basis of the grounds and averments contained in his replying affidavit dated 8th June 2018, which indicates that the grant was issued and confirmed with the knowledge and participation of the applicant but that the estate property is yet to be distributed among the beneficiaries.

The respondent prays for the dismissal of the application even as he contends that he harbours no intention of disinheriting the other beneficiaries and holds the title to the estate property for purposes of instituting and processing a suit pending in court between the estate of the deceased and one Bernard Ouro Nyobange, an alleged trespasser and intruder into the estate property.

[3]Further to the supporting and replying affidavits, both parties gave oral evidence in support of their respective positions and while the applicant (PW1) testified without calling any witness, the respondent (DW1) testified and called a witness, Morris Okongo Kikiaka (DW2).

Basically, applications relating to revocation or annulment of grant are provided for under Section 76 of the Law of Succession Act. Sub-sections (a) and (b) of the provision are invoked herein by the applicant. Thus, the applicant was required to establish that the grant and/or the certificate of confirmation of grant were obtained in proceedings which were defective in substance or 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.

[4]From both affidavit and oral evidence and the accompanying exhibits as well as the rival submissions, it is obvious that the grant wasobtained regularly in proceedings which did not smack of fraud or defect even though the applicant alleged that her signature was forged by the respondent while applying for the grant. Indeed, the applicant filed a criminal complaint against the respondent in that regard thereby leading to fraud related criminal offences being preferred against the respondent but ended with acquittal by the magistrate’s court at Homa Bay on 25th June 2020.

Be that as it may, the certificate of confirmation of grant dated 3rd December 2013, is by itself enough evidence to show that the respondent concealed material information when he took out the summons for the confirmation of grant, in that he failed to include the applicant who was a co-administrator as a beneficiary for purposes of sharing the estate property. In doing so, he included himself as the sole beneficiary with a view to inheriting the whole of the estate property. His explanation for that action found in paragraph 14 of his replying affidavit does not vindicate him and shows that he actually went ahead to disinherit the other beneficiaries including the co-administrator/applicant.

Further, paragraph 6 (six) of his replying affidavit is an untrue statement and indeed contradicts the actual state of affairs as by dint of the certification of confirmation of grant, the entire estate was distributed to himself solely yet he was not the sole beneficiary.

[5]On those grounds alone, this application is very much sustainable for the revocation of the questionable certificate of confirmation of grant dated 3rd December 2013. It is clear from the entire evidence that the deceased had two wives and several children from both. The applicant was the second wife while the respondent is one of the deceased’s children with the first wife (also deceased). Ideally, it was the applicant as the surviving second widow of the deceased who had the first priority among all the beneficiaries to petition for the grant but this did not necessarily mean that she could not allow any other beneficiary to take the initial step in applying for the grant. Indeed, this is what happened in the present circumstances.

Therefore, the respondent could be faulted for applying for the grant in the first instance and since the application was made jointly with the applicant, it meant that the applicant was aware of it and indeedparticipated in it contrary to what she stated herein.

[6]Clearly, the only invalid transaction undertaken by the applicant was in the confirmation of the grant and hence the distribution of the estate to all the beneficiaries. Here, the applicant became a “lone ranger" and distributed the entire estate of the applicant and/or any other beneficiary. Given that the deceased was a polygamous man and that he died intestate, the distribution of the estate ought to have been done in accordance with section 40 of the Law of Succession Act. Sub section (1) of the provision provides that:-

“Where an intestate has married more than once under any system of Law permitting polygamy, his personal and household effects and the residue of the net intestate estate shall, in the first instance, be divided among the houses according to the number of children in each house, but also adding any wife surviving him as an additional unit to the number of children.”

[7]It is herein evident that the respondent did not adhere to the aforementioned provision of the law when he took out the necessary summons for confirmation of grant and went ahead to distribute the suit estate to himself under the pretense that he was protecting the estate from an intruder. His allegation that he co-owned the property with the deceased was never made at the time of applying for the grant nor at the time of the confirmation of the grant. It only cropped up during the hearing of this application and may therefore be regarded as an afterthought.

In any event, the fact was never established and even if it were, then the respondent would have a cause of action on the ownership of the property against the estate of the deceased.

For all the foregoing reasons, this application is well merited and is hereby allowed to the extent that the grant issued jointly to the applicant and respondent dated 15th June 2009, is herein affirmed and validated but the certificate of confirmation of the grant dated 3rd December 2013, is herein invalidated and revoked together with all its resultant effects.

Both parties are directed to agree between themselves and all the other beneficiaries on the distribution of the estate and thereafter take out fresh summons for confirmation of grant within the next four (4) months from this date hereof.

In default, the grant itself together with the certification of confirmation of grant shall stand revoked and the matter be referred to the public trustee for distribution of the estate.

Ordered accordingly.

[Delivered and signed this 13th day of October, 2020. ]

J.R. KARANJAH

JUDGE