[2015] KEHC 8430 (KLR)
The court found that Florah Apiyo Ochanda falsely described herself as the widow of the deceased and failed to obtain the consent of all survivors before seeking confirmation of the grant. This constituted fraudulent misrepresentation and concealment of material facts under section 76(b) of the Law of Succession...
Source-derived case information.
- Citation
- [2015] KEHC 8430 (KLR)
- Parties
- Objector: Zedekiah Onyango Ayoo; Petitioner: Florah Apiyo Ochanda
- Court
- High Court
- Court Station
- High Court at Homa Bay
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 325 of 2014
- Procedural Posture
- Succession Cause / Ruling on Confirmation of Grant and Objection
- Outcome
- grant revoked and reissued jointly to objector and petitioner; liberty to apply for confirmation
- Judges
- DAS Majanja
- Legal Topics
- Succession, Grant of Letters of Administration, Revocation of Grant, Consent of Beneficiaries
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Zedekiah Onyango Ayoo
Objector
Florah Apiyo Ochanda
Petitioner
Procedural Posture
Succession Cause / Ruling on Confirmation of Grant and Objection
Legal Issues
- 1 Whether the grant of letters of administration was obtained fraudulently by misrepresentation or concealment of material facts.
- 2 Whether the petitioner obtained the necessary consent from all survivors of the deceased before applying for confirmation of grant.
- 3 Whether the grant should be revoked and reissued to appropriate parties.
Ratio Decidendi
The court found that Florah Apiyo Ochanda falsely described herself as the widow of the deceased and failed to obtain the consent of all survivors before seeking confirmation of the grant. This constituted fraudulent misrepresentation and concealment of material facts under section 76(b) of the Law of Succession Act. Consequently, the grant issued to her was revoked. However, since both parties agreed, the court reissued the grant jointly to Zedekiah Onyango Ayoo and Florah Apiyo Ochanda, allowing them to apply for confirmation together.
Court Disposition
grant revoked and reissued jointly to objector and petitioner; liberty to apply for confirmation
Orders
- The grant of letters of administration issued to Florah Apiyo Ochanda is revoked.
- A new grant is issued jointly to Zedekiah Onyango Ayoo and Florah Apiyo Ochanda.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT AT HOMA BAY
SUCCESSION CAUSE NO. 325 OF 2014
Formerly Oyugis Succession No. 38 of 2013
IN THE MATTER OF THE ESTATE OF
AYOO OGUM (DECEASED)
BETWEEN
ZEDEKIAH ONYANGO AYOO ……………………………………………………OBJECTOR
AND
FLORAH APIYO OCHANDA …………………………………………..………. PETITIONER
RULING
1. The applicant herein applied for confirmation of the grant of letters of administration issued to her in respect of the estate of AYOO OGUM. At the hearing of the application, ZEDEKIAH ONYANGO AYOO, objected to the grant being confirmed.
2. I heard the applicant and the objector and it transpired that Ayoo Ogum, the deceased, had two wives. Tabitha Abongo and Rebecca Ambuor who are both deceased. Tabitha Abongo had four children; Zedekiah Onyango Ayoo, Orpah Akeyo, Rusanil Akeyo and Hilda Anyango. Rebecca Ombuor had the following children; Richard Ochanda (deceased), Johnson Nyangore (deceased) and Damaris Aseko. Flora Apiyo is the wife of Richard Ochanda while Johnson Nyangore is survived by Peninah Ochieng and Jenifer Ajwang’.
3. It is apparent that the petitioner did not obtain the consent of all the survivors of the deceased. In form P & A5 she described herself as the widow of the deceased which is not true. Under section 76(b) of the Law of Succession Act (Chapter 160 of the Laws of Kenya), the court may on application or on its own motion revoke a grant of representation on the ground that, “the grant was obtained fraudulently by making a false statement or by the concealment from the court of something material to the case.”
4. I therefore revoke the grant of letters of administration issued to Flora Apiyo Ochanda.
5. As the parties herein agree, I reissue the grant to ZEDEKIAH ONYANGO AYOO and FLORA APIYO OCHANDA.
6. They are at liberty to apply for confirmation.
DATEDandDELIVEREDatHOMA BAY this 20thday of March 2015.
D.S. MAJANJA
JUDGE
Ms Mimba instructed by H.O. Mimba and Company Advocates for the petitioner.
Mr Ojijo instructed by Asiani, Ojijo and Company Advocates for the applicant/objector.