[2017] KEHC 2914 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KISUMU

SUCCESSION CAUSE NO. 214 OF 2015

SAMUEL OJUODHI AJULU …………………………………………….. APPLICANT

VERSUS

RISPA OWUONDO ATEGO …………………………………………….. RESPONDENT

RULING

These proceedings relate to the estate of Atego Agola who died on 26th December 1996 domiciled in Kenya at a place called Utonga, Bondo District, Nyanza Province now Siaya County.

Upon his death a grant of Letters of Administration intestate was issued to his wife Rispa Owuondo Atego. On 18th December 2016 the grant was confirmed and the quarter share of the deceased in LR North Sakwa/Maranda/1002 which was the only asset comprising the estate was vested in her.

On 21st October 2016 Samuel Ojuodhi Ajulu the applicant filed a Summons for revocation of the confirmed grant. The grounds for the application as stated on the face of the application and the supporting affidavit are that:-

1. “The grant was obtained by fraudulently making of a false statement and by the concealment from Court of facts material for the giving of the grant:-

2. The grantee fraudulently presented herself as the sole beneficiary to the estate and failed and/or refused to disclose to the court that there are other beneficiaries including the applicant entitled to share therein;

3. The grantee has not involved the other three tenants in common in determining the precise location of the one quarter share of the estate which is what the intestate owned and yet she names the entire parcel as belonging to the estate.”

Although Rispa Owuondo Atego did not file a replying affidavit she attended court and intimated that she wished to oppose the application. This court then gave directions that the application would be heard through viva voce evidence. The Applicant was represented by Behan & Okero Advocates while the Respondent acted in person.

The Applicant testified and adduced evidence to the effect that the deceased in this case was his uncle and that upon his father's death in 1957 the deceased inherited his mother and fostered her children including himself as if they were his own. He stated that the deceased had his own wife, Rispa Owuondo Atego (the Respondent) and two children both of them daughters who are now deceased. He stated that from 1957 he lived on the deceased's land with his mother and siblings until 1972 when his mother left to go back to her own husband's people (in-laws). He contended that he constructed his first house (simba) on the deceased's land, was educated by him and that the deceased also paid dowry for his wife. For those reasons he claimed to be entitled to a share of the deceased's estate. He admitted that he and his two brothers already own a quarter share each of that land as allotted to them during demarcation but that he is entitled to a share of the deceased's share as a son or dependant.

On her part Rispa Owuondo Atego testified that the deceased in these proceedings was her husband though she could not remember when she married him. She conceded that they begot only two children both two girls and that they are both deceased. She however stated that they are survived by children. She told this court that the Applicant's father and her husband were step brothers and admitted that the Respondent's father was inherited by her husband. She explained that after staying with Atego for four years the Applicant's mother left and went to live with her husband's people where she died and is buried. She contended that the applicant's mother left with her children including the Applicant. She urged this court to find that the Applicant is not entitled to a share of the deceased's estate and contended that the Applicant's ¼ share of the land was gifted to him by the deceased but was not allotted to him by the government as he alleges.

Peter Otieno Okode, a grandson of Rispa Owuondo Atego (the Respondent) recalled that in 1993 during the Applicant's visit to their home his grandfather (the deceased) showed the Applicant the portion of land which he had set aside for him and then said that his own share would be inherited by his grandchildren. He stated that, however upon the death of his grandfather the Applicant started laying claim to their portion. He contended that the Applicant is not entitled to that portion. Like the Respondent, he testified that whereas it is true that the Applicant's mother was inherited by the deceased they only lived together for three and a half to four years and she left taking with her all her children. He confirmed that the deceased fostered of the Applicant as he would his own child. He however disputed that the Applicant built a house on the deceased's portion and contended that he did so on his own share of the land where he lives todate. His evidence was supported by John Osere Obango (RW2), Walter Oremo Olwasi (PW3) and Henry Owiti Josiah (RW6) who claim to have known the late Atego Agola closely.

This court gave the parties fourteen days to file their submissions but none were received although I see from the file that the Applicant paid Kshs.150/= to be supplied with typed proceedings so as to prepare her submissions but the same were not supplied. The absence of submissions will however not preclude this court from delivering judgment in the matter. The judgment was first due on 13th July 2017 but was not delivered as this court was away on other official duties. The delay is regretted.

The grounds upon which a grant can be revoked are set out in Section 76 of the Law of Succession Act which provides -

“76. A grant of representation, whether or not confirmed, may at any time be revoked or annulled if the court decides, either on application by any interested party or of its own motion -

(a) that the proceedings to obtain the grant were defective in substance;

(b) 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;

(c) that the grant was obtained by means of an untrue allegation of a fact essential in point of law to justify the grant notwithstanding that the allegation was made in ignorance or inadvertently;

(d) that the person to whom the grant was made has failed, after due notice and without reasonable cause either -

(i) to apply for confirmation of the grant within one year from the date thereof, or such longer period as the court has ordered or allowed; or

(ii) to proceed diligently with the administration of the estate;

or

(iii) to produce to the court, within the time prescribed, any such inventory or account of administration as is required by the provisions of paragraphs (e) and (g) of section 83 or has produced any such inventory or account which is false in any material particular; or

(e) that the grant has become useless and inoperative through subsequent circumstances.”

The Applicant brings these proceedings as a dependant. It is his contention that, first the Respondent misled the court by concealing that there were other beneficiaries to the estate of the deceased including himself and secondly for not involving the other tenants in common in determining the precise location of the one quarter share of the deceased instead naming the entire parcel as belonging to the estate.

The latter ground would not be a basis for revoking the grant as it is clear from the Certificate of Confirmation of grant issued by this court on 18th January 2016, that what was transmitted to the Respondent was a quarter share of the assetLR North Sakwa/Maranda/1002, which admittedly is what the deceased owned. As for her not determining the precise location of that quarter acre share, that is always left to the processes that take place once the court has determined the cause and is best taken up with those offices that implement the actual transmission of the asset in this case the Lands Office.

On the ground of fraud my finding is that the same cannot stand. Whereas the law does contemplate that and in fact gives a court of law power to make provision for a dependant(s) and the Applicant has brought this application as a dependant his claim is time barred as Section 30 of the Law of Succession states:-

“30. No application under this Part shall be brought after a grant of representation in respect of the estate to which the application refers has been confirmed as provided by Section 71. ”

In any event it is clear from his own evidence that by the time the deceased died he was no longer his dependant. His own testimony which finds corroboration in the evidence of all the witnesses including those of the Respondent that whereas his mother was inherited by the deceased she left in 1972 to go and live with her own late husband's family. There is evidence that she took her children including the Applicant along with her. In my view that ended the dependancy. Further the deceased having brought him up, educated him and obtained for him a wife he was no longer a dependant.

There is evidence in the search certificate LR North Sakwa/Maranda/1002 was owned by four people namely:-

Atego Agola (the deceased in this case) – ¼ share

Ojuodhi Ajulu (the applicant) – ¼ share

Agola Ajulu- ¼ share

Ajulu Ajulu – ¼ share

These were proprietors in common in equal shares of quarter. Whereas a certificate of search does not give much of a history of the land concerned and a copy of the register would have been better there is evidence from the Respondent's witnesses that it is the deceased himself who sub-divided this land and gifted portions to the Applicant and his three brothers leaving a quarter portion of the land parcel for himself and his family. The Applicant disputed this and contended that his share was alloted to him by the government. I am however not persuaded that this was the case. From the certificate of search these four people became proprietors in common on 1st August 1978. This as both the Applicant and the Respondent testified was done after the Applicant and his siblings had left with their mother. We are told that by then the Applicant had already constructed a house on his own portion. The question the Applicant did not answer is why he would have left his own land given to him by the government and followed his mother?

I am persuaded upon a balance of probabilities that the portions owned by the Applicant and his siblings were gifted to them by the deceased and that if it was allotted to him by the government he did not prove it. Section 107 of the Law of Evidence Act places the burden of proof on him and it is my finding that he did not discharge it.

That he can inherit the quarter portion that remained for the deceased seems to stem from the fact that as the Respondent only begot daughters and he being a man, he is more than she entitled to the land. The Respondent has however proved that even though her daughters are deceased they are survived by their own children. One of them Peter Otieno Okode, RW1 testified in this case. Moreover even if she did not have any children or grandchildren at all, she would, as the surviving spouse of the deceased, have priority over anybody else to inherit his estate –see Section 35 of the Law of Succession Act. To hold that because she only begot girls or daughters diminishes her right to her husband's estate would be unjust. Her right to the estate is distinguishable only as provided in the Act and to hold otherwise would also be discriminatory.

In the premises I find that the Summons by the Applicant to revoke the grant is misconceived and dismiss it with costs to the Respondent.

Signed, dated and delivered at Kisumu this 12th day of October 2017

E. N. MAINA

JUDGE

In the presence of

N/A for the Applicant

Risper O. Atego the Respondent in person

Serah Sidera – Dholuo Interpreter