[2015] KEHC 1601 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KAKAMEGA

SUCCESSION CAUSE NO.2 OF 1982

IN THE MATTER OF THE ESTATE OF

RADOLO OYENGO ABIERO .......................................................................... DECEASED

AND

UTOLO RADOLO .......................................................................................... PETTIONER

AND

NOBERT RADOLO ......................................................................................... OBJECTOR

JUDGMENT

Nobert O. Radolo, (the objector) filed summons dated 14th November, 2012 seeking revocation of a grant of administration given to Utolo Radolo, (the petitioner) on 14th December, 1982 and confirmed on 25th November 1985 for the estate of the late Radolo Oyengo Abiero. The objector also sought an order cancelling the registration of the petitioner as proprietor of Parcel of Land No. South Wanga/Bungasi/830 which had been subsequently sub-divided into Parcel Nos. South Wanga/Bungasi/1153and 1154 and revert to the name of Radolo Oyengo Obiero (deceased). The objector further sought that he be appointed the administrator of the deceased’s estate.

The summons were supported by an affidavit sworn by the objector. The objector deponed that the deceased was his father while the petitioner was his brother. That the deceased died leaving five sons surviving him namely Utolo Radolo, Norbert Otieno Radolo, Obam Radolo, Ojwang Radolo and Oyengo Radolo. The objector complained that the petitioner took the whole parcel of land known as South Wanga/Bungasi/830 without giving the other beneficiaries their share. He therefore wanted the estate of the deceased (the parcel of land) distributed equally amongst the beneficiaries.

The petitioner filed a replying affidavit to the summons sworn on 25th February 2013 and deponed that he applied for a grant as the eldest son of the deceased and all his brothers were aware. He met all the expenses for succession proceedings and subsequent subdivision of the land resulting into Parcel No.s South Wanga/Bungasi/1153 and 1154. The petitioner further deponed that he occupies Parcel No.1153 while Parcel No.1154 is to be shared amongst his brothers and families of those deceased brothers. He therefore thought the summons should be dismissed.

On 20th May 2014 directions were taken to the effect that the objection be disposed of by way or oral evidence. The matter was then fixed for hearing on 28th September 2015 when the objector began his testimony as PW1.

The objector told the court that the petitioner and him are brothers and that his late father had only one wife who is also deceased. Their father left the only Parcel of Land South Wanga/Bungasi/830 measuring approximately 8. 8 Ha. The petitioner applied for a grant and later had the land registered in his name instead of sharing it out as the beneficiaries wanted. He said that the petitioner later had the land subdivided and at one time tried to evict one of the beneficiaries from Parcel No.1153 through a case he had filed in the High Court being ELC NO.193 of 2012. He pleaded with the court that the subdivision of the land be channelled and the land be shared equally amongst all the beneficiaries.

PW2 Melitus Oyengo Radolo testified that he is a brother to both the petitioner and the objector. He told the court that their father passed away leaving behind the parcel of land in dispute. The land was later sub-divided resulting into Parcel Numbers 1153 and 1154. All were registered in the petitioner’s name although he resides on the land which was originally Parcel No. South Wanga/Bungasi/830. He told the court that the petitioner later sued him in court whereby he wanted to stop him from constructing a house on the land. He also wanted to evict him from the parcel of land the subject of this cause. The witness told the court that he wanted the land to be shared equally amongst the children of the deceased.

The petitioner testified as DW1 and told the court that he would rely on his affidavit in opposition to the summons as his evidence. In the replying affidavit he had deponed that he rightfully took out a grant of letters of administration of their father’s estate and the land subdivided into two parcels. He said he occupies one parcel while his brothers are to share the other parcel although both parcels are still in his name.

In cross-examination, the petitioner agreed that the land was to be shared amongst the beneficiaries. He also admitted that he had sued his brother with a view to evicting him from the parcel he (petitioner) occupies. He also said that he spent his money in processing succession proceedings while his brothers were reluctant to contribute. He denied any wrong doing and asked that the objection be dismissed with costs.

I have considered this matter and the evidence by the objector, his witness and that of the petitioner.

It is true that both the petitioner and objector are brothers. It is also true that the deceased who was their father died and left behind Parcel No. South Wanga/Bungatsi/830. And that the petitioner applied for and was granted letters of administration on 14th November, 1982. I have not seen a copy of the certificate confirmation but from the record, the grant was confirmed by Aganyanya, J. (as he then was) on 21st, November, 1985.

In the petition, the beneficiaries had been named as Utolo Radolo, Ojwang Radolo, Obam Radolo, Otieno Radolo and Oyengo Radolo. The parcel of land left by the deceased was approximately 8. 8 Ha. which was to be shared out among the beneficiaries of the deceased. The estate does not appear to have been shared out. On 30th December, 1985, the beneficiaries of the deceased signed a transfer form which was to bring the parcel of land forming the estate of the deceased into their names.

However, the land appears to have been subdivided into two parcels and on 11th June, 2012 Parcel No. South Wanga/Bungasi/1153 and 1154 measuring 0. 24 (Ha) and 6. 80 ha respectively were created. Both parcels were registered in the name of Utolo Radolo, the petitioner. The petitioner even tried to have one of the beneficiaries evicted from one of the parcels of land (1153). The petitioner told the court that he intended to take Parcel No.1153 while his brothers would take Parcel 1154 and share it among themselves.

The petitioner having had the grant of letters of administration confirmed in 1985, he was under a duty to distribute the estate amongst beneficiaries. He did not do so. The petitioner as administrator of the deceased’s estate had the parcel of land subdivided but instead of distributing it, he had the two parcels of land registered in his name. That was not what the administrator was required to do. It is astonishing that the grant was confirmed in 1985 and thirty (30) years later, the estate has not been distributed. This is a serious omission on the part of the administrator.

When the petitioner applied for confirmation of the grant and had the same confirmed, what remained was for him to distribute the estate amongst the beneficiaries. However, he did not do so and instead, he had the property sub-divided into two portions and had all the portions registered in his name. This is not what was expected of an administrator. He was required to give effect to the certificate of confirmation by distributing the estate and bring administration of the estate into completion. This has not happened since Parcel No. South Wanga/Bungasi/830 has not been distributed. The administrator has not said what difficulty he has encountered in performing his obligation by distributing the estate.

The administrator is required under section 83 of the Law of Succession Act to complete administration of the estate. Section 83 provides where relevant as follows:-

“Personal representatives shall have the following duties

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 court a full and accurate account of the completed administration.

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.”

It is clear from the above provisions that the administrator in this cause has not fulfilled his mandate as required by law. He has neglected his duties and has engaged in acts that are meant to disinherit beneficiaries of the estate he is administering.

From the foregoing, I find that the objector has good reason to complain and the administrator cannot be excused to seat on a confirmed grant for thirty years. This is a clear demonstration that the administrator has failed in his duties to the beneficiaries of the estate. His registration as the owner of Parcel No. South Wanga/Bungasi/830 and later its sub-division into Parcel Nos.1153 and 1154 and registering them into his name was wrong and a confirmation that he was not ready to distribute the estate. His suggestion that he used his own money to file succession proceedings and therefore he was entitled to a larger portion of land is without legal justification.

For the above reasons, the objection dated 14th November, 2012 is hereby allowed and I make the following orders:

1. ) The grant of representation of the estate of the late Radolo Oyiengo Obiero issued to Utolo Radolo on 14th December, 1982 and confirmed on 25th November, 1985 is hereby revoked.

2. ) Parcel Nos. South Wanga/Bungasi/1153 and South Wanga/Bungasi/1154 are hereby cancelled and the land reverts back to Parcel No. South Wanga/Bungasi/830 in the name of Radolo Ayiengo Obiero (deceased).

3. ) A new Grant of Letters of Administration is hereby issued in the joint names of Nobert Otieno Radolo and Utolo Radolo.

4. ) The estate of Radolo Oyengo Obiero namely Parcel No. South Wanga/Bungasi/830 be shared equally amongst the beneficiaries, Utolo Radolo, Norbat Otieno Radolo, Victor Radolo Obam, Esther Akinyi Ojuang and Oyiengo Radolo.

5. ) A certificate of confirmation of grant of letters of administration do issue in that regard.

Dated and delivered at Kakamega this 19th day of October, 2015.

E.C. MWITA

J U D G E