REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT KISUMU

(CORAM: CHERERE-J)

SUCCESSION CAUSE NO. 581 OF 2014

IN THE MATTER OF THE ESTATE OF ODHIAMBO  KIDIALA  (DECEASED) BETWEEN

WILLIAM  ONYANGO ORIRI............OBJECTOR/APPLICANT

AND

EDWIN OWINO ATINGA...............PETITIONER/RESPONDENT

JUDGMENT

1. Odhiambo Kidiala (deceased) died sometimes on 01st July, 1980.  His estate comprised of L.R. NO. NORTH SAKWA/MARANDA/21.

2.  On 05th October, 2012, Letters of Administration, were issued to Edwin Owino Atinga (Petitioner/Respondent) in his capacity as grandson of the deceased.

3.  Subsequently, a Certificate of Confirmation of Grant was issued in favour of the Petitioner/Respondent of 17th April, 2013.

4. On the strength of  the said Confirmation of  Confirmation of  Grant, the Petitioner/Respondent caused the estate to be subdivided into two land parcels namely  L.R.  NO.  NORTH SAKWA/MARANDA/2337 and  L.R.  NO.  NORTH SAKWA/MARANDA/2338 both of which were registered his name.

Application

5.  By  summons  dated  30th    September, 2014  filed  on  even  date,  the

Objector/Applicant prayed for order:

1) An injunction to restrain the Petitioner/Respondent from selling, offering for sale, alienating, disposing off or in any other manner dealing with land parcels L.R.   NO.   NORTH  SAKWA/MARANDA/2337 and   L.R.   NO.   NORTH SAKWA/MARANDA/2338

2) Revocation of the Letters of Administration and Confirmation of Confirmation of Grant issued to the Petitioner/Respondent

3) Revocation of registration dated 08th October, 2012 relating to land parcel L.R. NO. NORTH SAKWA/MARANDA/21  from the name of the deceased into the names of the Petitioner/Respondent

4) Revocation of registration dated 19th December, 2012 relating to land parcels L.R.   NO.   NORTH  SAKWA/MARANDA/2337 and   L.R.   NO.   NORTH SAKWA/MARANDA/2338 into the names of the Petitioner/Respondent

5) Rectification of the title so as to revert it its original number in the name of the deceased

6.  By a consent of the parties recorded on 17th  December, 2018, prayers 3, 4 and 5 above were allowed. The same having been allowed, prayer 1 was also deemed as having been allowed.

7. The issue pending for determination is whether the Letters of Administration and Confirmation of Confirmation of Grant issued to the Petitioner/Respondent ought to be revoked.

 O b jecto r/Ap p l i cant’s ca s e

8. The Objector/Applicant  stated that deceased who was brother to his father was not married and had no children. It was his evidence that deceased had 3 siblings who are deceased and they included his father Petro Atinga who had 9 children, Janes Atinga who had one child and Grado Kidiala who had one child also.

9. The Objector/Applicant faulted the Petitioner/Respondent who is the son of his brother John Atinga, for distributing the deceased’s  estate solely to himself thereby disinheriting  all  the  other  beneficiaries. In  support  of  his  case, the Objector/Applicant  tendered Green Card relating to land parcel L.R. NO. NORTH SAKWA/MARANDA/21  which indicates that an entry dated 08th   October, 2012 caused the title to be registered from the name of the deceased into the names of the   Petitioner/Respondent. Further  an   entry   dated  19th     December,  2013 demonstrates that the said land parcel was sub-divided into two portions L.R. NO. NORTH SAKWA/MARANDA/2337   and L.R. NO. NORTH SAKWA/MARANDA/2338 which were registered into the names of the Petitioner/Respondent as supported by the tendered copies of title deeds.

 P eti ti o ner /R espo nd ent’ s  ca s e

10.  The Petitioner/Respondent  and his counsel did not attend the hearing. By his replying affidavit sworn on 10th November, 2014 and filed on 11th November, 2014, Petitioner/Respondent concedes that  he  caused the  deceased’s estate to  be distributed solely to himself and that it was subsequently   sub-divided into two portions which were registered in his name. While on one hand claiming that the Objector/Applicant was not related to the deceased, he goes ahead to aver that the Objector/Applicant had benefitted from deceased’s estate in that the deceased had given him 5.7 Hectares of land whose tittle number he did not disclose.

Analysis and Determination

11.  I have considered the objection vis-à-vis the evidence on record. Section 76 of the Law of Succession Act (the Act) provides as follows:

“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.”

12. In Musa Nyaribari Gekone & 2 Others v Peter Miyienda & another [2015] eKLR, the Court of Appeal held that:

“The expression “any interested party” as used in the foregoing provision, in its plain and ordinary meaning, is in my view wide enough to accommodate any person with a right or expectancy in the estate.”

13.  The expression “any interested party” as used in the foregoing provision, in its plain and ordinary meaning, is in my view wide enough to accommodate any person with a right or expectancy in the estate such as the Applicant herein.

14. It is on record that the deceased had three siblings who had children who include the Objector/Applicant  and Petitioner/Respondent’s father among others. Under the provisions of Section 39 of the Act, the Applicant, his brothers and cousins who are nephews and nieces of  deceased rank in  priority  to  the Petitioner/Respondent who is a grandson of the deceased and it was therefore not open to the Petitioner/Respondent to allocate the deceased’s estate solely to himself thereby disinheriting all the other beneficiaries.

15. Petitioner/Respondent’s  actions lead this court to the conclusion that the Letters of Administration and Certificate of Confirmation of Grant issued to him on 05th October, 2012 and 17th April, 2013 respectively were obtained fraudulently and by the making of a false statement and by concealment from the court of all the beneficiaries of the deceased and ought to be revoked.

Disposition

19.  Consequently, I am satisfied that the Objector/Applicant has made out a case for revocation of the Letters of Administration and Certificate of Confirmation of Grant issued in this cause. As a result, it is hereby ordered THAT:

a) Letters of administration issued on 05th  October, 2012 to EDWIN  OWINO ATINGA are hereby revoked.

b) The subsequent Certificate of Confirmation of Grant issued on 17th April, 2013 to EDWIN OWINO ATINGA is correspondingly revoked.

c) WILLIAM ONYANGO ORIRI (Objector/Applicant)  is hereby appointed as the administrator of deceased’s estate