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In re Estate of Olawo Opundi (Deceased) (Succession Cause 262 of 2014) [2022] KEHC 388 (KLR) (12 May 2022) (Ruling)
Neutral citation:
[2022] KEHC 388 (KLR)
Republic of Kenya
Succession Cause 262 of 2014
JR Karanja, J
May 12, 2022
In the Matter of the Estate of Olawo Opundi (Deceased)
Between
Masakhalia Olayo
1st Applicant
Wasike Olao Obunde
2nd Applicant
and
Gregory Owino
Respondent
Ruling
(1)The present application dated 18th July 2014, is for revocation of the grant of letters of administration issued to Gregory Owino (Petitioner) on the 28th August 1998 and confirmed on the 2nd September 1999 with the necessary certificate of confirmation of grant being issued on 15th October 1999 effectively distributing the estate property, Bukhayo/Boyofu/318 to all the beneficiaries identified therein in equal shares. The applicant, Masakhalia Olayo and Wasike Olao Obunde, allege that the grant was obtained fraudulently and by concealment of the material facts.
(2)Under section 76 of the Law of Succession Act, any grant obtained fraudulently and/or by concealment of material facts is amenable to revocation at any time.In his grounds of opposition dated 22nd August 2015, and replying affidavit dated 23rd March 2017, the petitioner opposes the application and contends that the grant was properly and lawfully obtained and confirmed.
(3)The burden to establish the allegations made against the petitioner and to debunk his contention lay on the applicants/objectors and from a perusal of the court record this has not been discharged. The averments contained in the applicant’s supporting affidavit implying that the grant was improperly obtained were not established and/or proved by any evidence. Instead, there is a clear suggestion that the applicants are referring to other property which were not subject of the material grant, hence subject of the certificate of confirmation of grant and indeed subject of the entire succession cause.
(4)Even if, the other property were subject of this cause, the applicants did not show by necessary and appropriate evidence that the grant was fraudulently obtained by the petitioner. The record clearly shows that both the applicants as beneficiaries of the estate were fully aware of these proceedings instituted by the petitioner and indeed participated in them from the beginning to the end. Significantly, the record also shows that the applicants raised no objection to the application for confirmation of grant thereby implying that they were in agreement with the proposed mode of distribution which resulted in the distribution of the estate to all the deserving beneficiaries including themselves.The fact that they waited for expiry of a long period of time prior to bringing the present application is a clear demonstration that the application is an afterthought and was not made in good faith.
(5)For all the foregoing reasons, the application is wanting on merit and is hereby dismissed with each party bearing their own costs.Ordered accordingly.
J.R. KARANJAHJ U D G E[DATED & DELIVERED THIS 12 TH DAY OF MAY 2022]
