[2017] KEHC 10114 (KLR)
The court held that the objector, as the widow of a purchaser of a portion of the deceased's land, does not qualify as a beneficiary under the Law of Succession Act and is not entitled to be joined as an administrator of the deceased's estate. The deceased's next of kin have priority in administration. The...
Source-derived case information.
- Citation
- [2017] KEHC 10114 (KLR)
- Parties
- Objector: Rose Atieno Odoyo; Petitioner: Devoter Akeyo Otieno; Petitioner: Zennah Achieng Juma
- Court
- High Court
- Court Station
- High Court at Homa Bay
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 403 of 2015
- Procedural Posture
- Succession Cause / Ruling on Summons for Revocation of Grant
- Outcome
- application dismissed
- Judges
- DO Ohungo
- Legal Topics
- Succession of Estates, Revocation of Grant, Beneficiary Entitlement, Purchaser Rights, Administration of Estates
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Rose Atieno Odoyo
Objector
Devoter Akeyo Otieno
Petitioner
Zennah Achieng Juma
Petitioner
Procedural Posture
Succession Cause / Ruling on Summons for Revocation of Grant
Legal Issues
- 1 Whether the objector, as a purchaser's widow, is entitled to be joined as an administrator of the deceased's estate.
- 2 Whether the grant of letters of administration was fraudulently obtained by failing to seek the objector's consent.
- 3 Whether the objector is a beneficiary of the estate by virtue of her late husband's purchase of a portion of the estate land.
Ratio Decidendi
The court held that the objector, as the widow of a purchaser of a portion of the deceased's land, does not qualify as a beneficiary under the Law of Succession Act and is not entitled to be joined as an administrator of the deceased's estate. The deceased's next of kin have priority in administration. The objector's remedy is to file a separate suit against the administrators for transfer of the purchased portion, not to seek revocation of the grant in the succession cause. The grant was not fraudulently obtained as the objector was not a necessary party to the succession proceedings. Accordingly, the application for revocation of grant was dismissed.
Court Disposition
application dismissed
Orders
- The summons for revocation of grant is dismissed.
- The applicant/objector shall bear the costs of the application.
Full Case Text
Judgment text and source record
28 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COUR TOF KENYA AT HOMA BAY
SUCESSION CAUSE NO: 403 OF 2015
IN THE MATTER OF THE ESTATE OF JARED JAGERO KINAGA.......DECEASED
BETWEEN
ROSE ATIENO ADOYO.............................OBJECTOR
AND
DEVOTER AKEYO OTIENO................1ST PETITIONER
ZENNAH ACHIENG JUMA................2ND PETITIONER
RULING
When JARED JAGERO KINAGA died on the 14th January 2008 at Nyamarindi, DEVOTER AKEYO and ZENNAH ACHIENG JUMA petitioned for grant of letters to administer his estate. DEVOTER described herself as the deceased’s daughter in –law and listed her three children namely;-
P A O- 18 Years
J O O- 14 Years
F A- 11 Years
As the surviving beneficiaries. She indicated in the affidavit in support of the petition that;
‘ The deceased had only one son and did not have any daughter’
Zennah Achieng Juma, (the co-administrator) described herself as an aunt to the deceased. The letter by the area chief dated 1/12/2014 indicated that Devoter and her three children were the only surviving dependants of the deceased. They had listed a parcel of land no. KAKSINGRI/WAREGI/1014 as the asset for distribution.
When the existence of this cause came to the knowledge of ROSE OTIENO ODOYO she filed a summons seeking revocation of the grant and requesting that she either be allowed to file a separate cause or be joined as an administrator of the estate. It was her contention that the grant was fraudently obtained as the petitioner failed to seek her consent before filing the cause.
Further, that the petitioner failed to disclose to the court that the applicant was also a beneficiary by virtue of being the widow of SHELEMIAH ODOYO MIRERI who had bought a piece of land from the deceased.
The applicant annexed a copy of grant issued to her in succession cause No. 112 of 2001 in the matter of the estate of SHELEMIAH ODOYO MIRERI ,where parcel No; KAKSINGIRI/WAREGI/1014 was listed as one of the assets to devolve to her whole share. She also annexed a copy of the sale agreement, so it is her contention that the said asset is not available for distribution.
The asset measures 2. 85 Ha. And the sale agreement indicates what was sold to the applicant’s husband was 1 acre. Does a buyer have a right to be an administrator of a seller’s estate where the deceased’s next of kin is surviving?
Sec 29 of the Saw of succession Act sets out the list of dependants . The whole purpose of obtaining grant of letters of administration is to enable the person applying to administer the entire estate of the deceased person, and not just one property which has been obtained by way of a purchase. Certainly a buyer comes last in the line and can only move to court to be allowed to apply for grant of letters after filing and serving a citation and the process concluded.
In the affidavit sworn by DEVOTER dated 9th December 2014, she stated that the deceased’s wife SALOME ANYANGO JAGERO had also died and she annexed a death certificate. She also presented a letter dated 1/12/2014 written by the chief of KAKSINGIRI CENTRAL location confirming the position she had taken.
As at the time of his demise Jared had not transferred the portion he had sold to Shelemiah - that does not make Shelemiah or his dependants beneficiaries to his estate. What the applicant Rose Odoyo ought to do is to file a case against the administrators of the estate of JARED JAGERO KINAGA seeking that they execute the relevant documents regarding the sold portion- that is not within the jurisdiction of the High court sitting in a succession cause.
Consequently the prayer sought has no merit and is dismissed. The applicant/objector shall bear the costs of their application.
Delivered and dated this 2nd day of February, 2017 at Homa Bay.
H.A OMONDI
JUDGE