[2015] KEHC 2229 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KISUMU

SUCCESSION CAUSE NO. 58 OF 2010

IN THE MATTER OF THE ESTATE OF PETER ODHIAMBO (DECEASED)

SAMSON ODHIAMBO CHABA................PETITIONER/RESPONDENT

VERSUS

ROSELYNE AKETCH ODHIAMBO........OBJECTOR/ APPLICANT

RULING

In the Notice of Motion dated 30th September 2014 and filed on even date the applicant seeks orders as follows:-

Spent

Spent

This Honourable be pleased to order that the Petitioner herein Samson Odhiambo Chaba to give an account as regards the management and affairs of the deceased estate todate.

This Honourable Court be pleased to issue a prohibitory order restraining any dealings in respect of land parcels NO. KISUMU/BORDER/4366, 4361, 4101, 4360, 1189, 4364, 4490, 4100, 4363, 4095, 4098, 4097, 4099, 4096, and 40101 until final distribution is done with the consent of all the beneficiaries.

Upon above prayers being granted, the management of the entire deceased's estate be managed and supervised by the Public Trustee-Kisumu until further orders of this Honourable Court and or consent of all the beneficiaries.

There be a disclosure of all the assets, former and current liabilities thereto touching on the deceased's estate herein by the Petitioner herein.

This Honourable Court do issue an order directing the Petitioner to declare the true dependants of the deceased's estate and their shares as per law requirements for further distribution by this Honourable Court.

This Honourable Court be pleased to order that the Objector herein be enjoined as interested party in this petition.

The application is premised on grounds that:-

(a) THAT the Petitioner herein has put to waste the estate of the detriment of the beneficiaries.

(b) THAT the Petitioner has failed in his duties as entrusted by the Court.

(c) THAT the Objector has not benefited in any way from the estate of the deceased.

(d) THAT the Applicant has come to Court with clean hands and with undue delay.

The Respondent opposed the application on the following grounds:-

This matter was concluded and the application is superfluous.

That there is a consent order distributing the estate.

This application is bad in law and offends the provisions of Succession Act.

That the prayers sought cannot be granted because they are mischievous and malafides.

Although on 20th May 2015 this Court gave directions that this application be canvassed by way of written submissions, only those of the applicant were received. The applicant and the Respondent were appointed joint administrators of the estate of the deceased following a consent recorded on 25th July 2012. That the same consent stated that a parcel of land KISUMU/BORDER/1558 was to be sub-divided to the beneficiaries as follows:-

(a) Roselyne Aketch Odhiambo – 0. 2 Ha.

(b) Gideon Owino Okumu – 3. 65 Ha.

(c) Samson Odhiambo Chaba – 9. 15 Ha.

The record shows that a Certificate of Confirmation of grant was on 6th December 2012 issued to that effect. However on 12th May 2014 Samson Odhiambo Chaba filed an application in which he sought rectification of that certificate to include properties that were allegedly left out.That application was allowed. It is not clear to me whether the properties included in the rectified grant were properties that had been left out or whether they were properties that resulted in the sub-division of KISUMU/BORDER/1558. What is clear to me is that the Respondent had no business making that application for rectification without involving his co-administrator and I believe that had the consent dated 25th July 2012 been brought to the attention of the Court it would have declined to allow the application.

Be that as it may the orders now sought are not strange.They are provided for under Section 83(g), (h) and (i) of the Law of Succession Act which provide as follows:-

(g) within six months from the date of confirmation of the grant, or such longer period as the Court may allow, to complete the administration of the estate in respect of all matters other than continuing trusts, and to produce to the Court a full and accurate account of the completed administration.

(h) to produce to the Court, if required by the Court, either of its own motion or on the application of an interested party in the estate, a full and accurate inventory of the assets and liabilities of the deceased and a full and accurate account of all the dealings therewith up to the date of the account.

(i) to complete the administration of the estate in respect of all matters other than continuing trusts and if required by the Court, either of its own motion or on the application of any interested party in the estate, to produce to the Court a full and accurate account of the completed administration.

Accordingly but noting that the period of six months has long expired since the confirmation of grant, the respondent shall have a period of one month (30 days) to produce to the Court:-

(a) A full and accurate account of the completed administration and;

(b) A full and accurate inventory of the assets and liabilities of the deceased and a ful and accurate account of all dealings therewith up to the date of account.

In the meantime there shall issue a prohibitory order restraining any dealings in respect of LR. KISUMU/BORDER/4366, 4361, 4101, 4360, 1189, 4364, 4490, 4100, 4363, 4095, 4098, 4097, 4099, 4096 and 40101 until further orders of this Court.

The costs of this application be borne by the Respondent.

It is so ordered.

Signed, dated and delivered at Kisumu this 30th day of September 2015

E. N. MAINA

JUDGE

In presence of:-

N/A for Petitioner/Respondent

Mr. Oyoo Otieno for Objector/Applicant(H/B for Applicant)

CC: Moses Okumu