REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT BUSIA

SUCCESSION CAUSE NO.2 OF 2017

IN THE MATTER OF THE ESTATE OF OCHIENG ONYANGO – (DECEASED)

GILBERT MARTIN ODEKEYO...............................................................................PETITIONER

VERSUS

DEMTILA AUMA MAKOKHA..........................................................OBJECTOR/APPLICANT

R U L I N G

[1] The subject grant was issued to Gilbert Martin Odekeyo (Petitioner) on the 26^th January 2007 and was confirmed in his favour on the 12^th June 2008.

The estate property being land parcel No.Marachi/Kingandole/649 which was registered in the name of Ochieng Onyango (deceased) was thus transmitted to the petitioner wholly as the sole beneficiary of the estate.

The Chief’s letter dated 4^th October 2006 indicated that the deceased died on 21^st December 1965 and was survived by three sons namely Wycliff Osaye, Thomas Kodiko Odekeyo and Okwero Odekeyo, who is now deceased.

[2]  However, more than five years after the confirmation of the grant the present application vide the summons for revocation of grant dated 12^th March 2014 was filed by Demtila Auma Makokha (objector) seeking orders for revocation of the grant and issuance of a fresh grant in her name on grounds that the grant was obtained fraudulently and by concealment of material facts and that the petitioner misled the court that he was a beneficiary of the deceased’s estate.

In her supporting affidavit dated 12^th March 2014, the objector contended that the petitioner is a total stranger to the estate of the deceased and that she was the sole child of the deceased and sole beneficiary of his estate.  That, after the death of the deceased on 8^th May 2004, the original title deed of his estate property was left with her but the petitioner obtained a title deed in his name and without surrendering the original title deed.

[3] In the further supporting affidavit dated 17^th April 2018, the objector contended that the deceased died on 8^th May 2004 and not the 21^st December 1965 as alleged by the petitioner.    That John Kadeko, Wycliffe Osaye and Thomas Odekayo, the alleged sons of the deceased were actually not sons of the deceased, but distant cousins who never depended on the deceased.  That, the petitioner is son to Wycliff Osaye and a distant nephew to the deceased and not a grandson to the deceased as alleged.

The objector further contended that the Chief’s letter was false and fictitious as the petitioner was not qualified to administer the estate of the deceased either as a dependant of the deceased or a member of the deceased’s family.  That, she (objector) was the only child of the deceased hence, the sole beneficiary of his estate.

[4] In opposing this application, the petitioner deponed a replying affidavit dated 7^th May 2018, in which he contended that the objector lacks necessary” locus-standi” in this matter as she is not a daughter of the deceased, but the daughter of one Nyaudo, who lived and died at Rwambwa in the area of Bunyala.  That, the deceased had three (3) wives viz Sabina, who had two sons – Karani Odekeyo and Henry Kadiko. Nabonwe, who had one son – Onyango and Salome, who had three sons – Okwero Odekeyo, Wycliff Osaye and Thomas Odekeyo.  That, being the son of Okwero Odekeyo, the (petitioner) was a grandson of the deceased.  That, the estate property was left under the care of his (petitioner’s) father for a period of more than forty (40) years.

It was the petitioner’s further contention that the objector had never ever lived on the estate property and that the title of the estate property was stolen from the custody of his father impliedly, by the objector.

[5] At the “viva voce” hearing of the application both parties more or less reiterated their averments contained in their respective supporting and replying affidavits.  In the process, the objector Demtila Auma Makokha (PW 1) produced a death certificate (P.Ex 1) indicating that the deceased died on 8^th May 2004.  She also produced an original land certificate dated 9^th June 1973 (P.Ex 2) to confirm and prove that the estate property land parcel Marachi/Kingandole/649 was registered in the name of the deceased Ochiengi Onyango.  She stated and contended that the deceased was her father and had one wife with whom he sired nine (9) sons and six (6) daughters who all passed away leaving her as the only surviving child.  The objector further testified that the petitioner was not a grandson of the deceased but was related to her through her grandfather one Odekeyo.

[6]  Augustine Odekeyo (PW 2) stated that he shared a grandfather with the objector and that the petitioner was a son of his brother.  He contended that the objector was the sole surviving child of the deceased and the sole heir of his estate.

Rasto Makokha Odekeyo (PW 3), stated that the deceased was his paternal uncle and that the objector was a sister of Ochieng (deceased).  However, in his statement dated 31^st July 2018, he said that the deceased was the father of the objector with his wife called Nyadundo and with whom he sired seven children.  Augustine (PW 2) in his statement dated 31^st July 2018, stated that the petitioner was his brother and both are sons of one Odekeyo Kodiko.  He also said that the objector is his aunt and a daughter of the deceased.

[7] While testifying, the petitioner Gilbert Martin Odekeyo (DW1), relied on his statement dated 25^th February 2020 which was filed herein on 26^th February 2020.  He indicated therein that the deceased was his grandfather and had three wives and several children who included his father Okwero Odekeyo who belonged to the deceased’s third house together with one Wycliff Osaye and one Thomas Odekeyo who gave him the go ahead to institute this succession cause.  He said that Wycliff Osaye is still alive and contended that the objector was not a daughter of the deceased.

In cross-examination, the petitioner stated that he was born in 1975 and did not see the deceased who had passed away ten years earlier in 1965.  He admitted that the title to the estate property was created in 1973 in the name of the deceased who was not alive at the time.  He also admitted that he did not have any death certificate to indicate that the deceased died on any other day than the 8^th May 2004 as indicated in the death certificate produced by the objector (P.Ex 1).

[8] The petitioner also confirmed in cross-examination that his uncle Wycliff Osayo, a son of the deceased was alive.  He said that he did not know how the objector was related to him and does not even know her at all and that he had never seen her until the day he testified in court.  His witnesses, Gilbert Oduki Oketch  (DW 2), relied on his statement dated 17^th November 2021, in which he indicates that the objector was not a daughter of the deceased as her mother called Nyaudo was not a wife of the deceased.

In cross examination, he stated that he knew the deceased’s family very well and that the deceased died in 1965.  He said that he was born in 1960, thereby indicating that the deceased died when he was aged approximately five (5) years old.  He also said that he saw the objector in 1966 when she was young and that her mother was called Nyaudo.  In re-examination, the witnesses (PW 2) indicated that the objector lived with her mother who was not a wife of the deceased.

[9] The law with regard to revocation or annulment of grants is set out in S.76 of the Law of Succession Act which clearly specifies the circumstances favourable for exercise of a court’s discretion in revoking or annulling a grant issued to a petitioner or any other person.

Thus, a grant, whether or not confirmed, may at any time be revoked or annulled if the court decides either on application by any party or of its own  motion that “inter alia” the proceedings to obtain the grant were defective in substance or that the grant was obtained fraudulently by false statements and concealment of material facts.

The evidence adduced herein, both affidavit and oral, clearly indicates that the petitioner obtained the material grant by false statements and concealment of material facts with regard to the date of the death of the deceased, his actual relationship with the deceased and the actual beneficiaries of the estate, his capacity to apply for the grant given that there were other persons related to the deceased who stood higher in priority than him (if at all) in applying for the grant.  These included his uncle Wycliffe Osaye, the alleged surviving son of the deceased and the objector the alleged surviving child of the deceased and sole heir of his estate.

[10] The petitioner omitted to mention and even include the objector as a beneficiary of the estate yet she was identified and recognized by his own uncle (PW 2) as a daughter and only surviving child of the deceased.  His cousin (PW 3) also identified and recognized the objector as such.

In failing to include the objector as a beneficiary of the estate knowing too well through his elder relatives that she was the only surviving daughter of the deceased, the petitioner clearly demonstrated his intention to disinherit the objector and executed the intention by applying and obtaining the material grant by false pretences, false representation and concealment of material facts thereby misleading the court into issuing him with the material grant.

[11] The fact that a valid death certificate (P.Ex 1) established that the deceased died on 8^th May 2004 meant that the petitioner lied when he stated in his application for the grant that the deceased died on 21^st December 1965.  If that was the case, then it meant that the petitioner applied for the grant to administer the estate of a person who was not the deceased or was not confirmed dead by way of a death certificate.

The Chief’s letter dated 4^th October 2006 was not proper documentary evidence to confirm that the deceased died on 21^st December 1965.  In any event, the Chief did not provide proper basis to come up with such a letter which was used by the petitioner to mislead the court and fraudulently obtain the material grant.

The fact that the estate property was initially registered in the name of the deceased in 1966 and 1972 or 1973 was a clear demonstration that the deceased was alive and not dead in the year 1965.

[12] In sum, the totality of the evidence availed herein must lead to the irresistible conclusion that the material grant was fraudulently obtained by the petitioner and must therefore be revoked.

The objector has on a balance of probabilities established her case against the petitioner for this court’s exercise of discretion in her favour.

Ultimately, the grant issued to the petitioner dated 26^th January 2007 and confirmed on 12^th June 2008, be and is hereby revoked with orders that the registration of the deceased as the proprietor of the estate property shall forthwith be restored and a fresh grant be issued forthwith in the name of the objector and be confirmed within the next four (4) months from this date hereof.

Ordered accordingly.

J.R. KARANJAH

J U D G E

[DATED & DELIVERED THIS 23^RD DAY OF MARCH 2022]