[2017] KEHC 6945 (KLR)
The court found that the applicants failed to provide current search documents to verify ownership of the properties sought to be included in the rectified grant. Additionally, there was no documentary proof of the death of Nereah Ajwang Achar, nor evidence regarding the entitlement of her offspring. The absence of...
Source-derived case information.
- Citation
- [2017] KEHC 6945 (KLR)
- Parties
- Applicant: WAO AENDE; Applicant: JARED OKOTH ODERA; Applicant: KUNGU ODERA; Respondent: JOSHUA OTIENO MISADHI; Respondent: JAMES OMOLLO OGOMA
- Court
- High Court
- Court Station
- High Court at Homa Bay
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 4 of 2013
- Procedural Posture
- Succession Cause / Ruling on Application for Rectification of Grant
- Outcome
- application dismissed
- Judges
- DO Ohungo
- Legal Topics
- Rectification of Grant, Succession, Estate Distribution, Beneficiary Entitlement
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
WAO AENDE
Applicant
JARED OKOTH ODERA
Applicant
KUNGU ODERA
Applicant
JOSHUA OTIENO MISADHI
Respondent
JAMES OMOLLO OGOMA
Respondent
Procedural Posture
Succession Cause / Ruling on Application for Rectification of Grant
Legal Issues
- 1 Whether the grant of letters of administration should be rectified to include omitted land parcels.
- 2 Whether the applicants provided sufficient documentary evidence of ownership of the properties in question.
- 3 Whether the share of a deceased beneficiary (Nereah Ajwang Achar) should be dropped or devolved to her offspring.
Ratio Decidendi
The court found that the applicants failed to provide current search documents to verify ownership of the properties sought to be included in the rectified grant. Additionally, there was no documentary proof of the death of Nereah Ajwang Achar, nor evidence regarding the entitlement of her offspring. The absence of these critical documents and information created material gaps, making it impossible for the court to grant the rectification. The court emphasized that the share of a deceased beneficiary should devolve to her heirs, not be extinguished or reallocated without due process and proof. Consequently, the application for rectification was dismissed due to insufficient evidence and...
Court Disposition
application dismissed
Orders
- The application for rectification of the grant is dismissed.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT HOMA BAY
SUCCESSION CAUSE NO.4 OF 2013
IN THE MATTER OF THE ESTATE OF: MARGARET ONYANGO
MBADI & JAMES OMOLLO MBADI .............................. DECEASED
BETWEEN
WAO AENDE ............................................................... 1ST OBJECTOR
JARED OKOTH ODERA ............................................ 2ND OBJECTOR
KUNGU ODERA ......................................................... 3RD OBJECTOR
VERSUS
JOSHUA OTIENO MISADHI ........... 1ST PETITIONER/RESPONDENT
JAMES OMOLLO OGOMA ............ 3RD PETITIONER/RESPONDENT
RULING
1. MARGARET ONYANGO MBADI and JAMES OMOLLO MBADI died on 13th November 2007 and 15th June 1994 respectively. Their daughter namely NEREAH AJWANG, PENINAH AWUOR and ROSA OYUGI ODIPO were issued with grant of letters of administration on 6th November 2014. Thereafter a certificate of grant dated 12th February 2016 was issued reflecting the asset for distribution as Land Parcel NO. KANYADA/K/KATUMA’A’/613 and KANYADA/K/KATUMA’A’/1403 which were left out in the certificate. The administrators now pray that the grant be rectified so as to include the said parcels.
2. It is also indicated that one of the beneficiaries namely NEREAH AJWANG ACHAR died on 25th October 2015 after the grant had been issued but not confirmed, leaving the surviving two sisters namely PENINA AWUOR and ROSA OYUGI ODIPO to whom the estate should be apportioned as follows:-
a) PENINA AWUOR to own Land Parcel No. KANYADA/K/KATUMA’A’/613 whole.
b) ROSA OYUGI ODIPO to own parcel NO. KANYADA/K/KATUMA’A’/522 while and KANYADA/K/KATUMA’A’/1403 whole.
3. I have perused the record and noted that a search document dated 2/2/2012 shows parcel NO. KANYADA/K/KATUMA ‘A’/1403 was registered in the name of MARGARET ONYANGO ODIPO. I require a current search to confirm the status of the property.
4. I have failed to find any document in the record concerning ownership of parcel NO. KANYADA/K/KATUMA’A’/613.
5. The applicants failed to attach current search documents in relation to the properties and I am unable to verify the current registered owners of NO.1403 and whether 613 was ever owned by either of the deceased.
6. It is also said that NEREAH AJWANG ACHAR is now deceased but there is no document annexed to prove that. I would expect copy of a death certificate – none was presented. In any event the situation does not lie in dropping off NEREAH’s interest, but in nominating her offspring to benefit from her share.
7. It is on account of these loop-holes that I decline to grant the prayers for rectification. The application is thus dismissed.
Delivered and dated this 24th day of March, 2017 at Homa Bay
H. A. OMONDI
JUDGE