|Succession Cause 510 of 1997
|EDWARD ALDRINE NYABANDO v MARIKILINA NYABANDO
|31 Mar 2011
|High Court at Kisii
|Milton Stephen Asike-Makhandia
|EDWARD ALDRINE NYABANDO v MARIKILINA NYABANDO  eKLR
|The information contained in the above segment is not part of the judicial opinion delivered by the Court. The metadata has been prepared by Kenya Law as a guide in understanding the subject of the judicial opinion. Kenya Law makes no warranties as to the comprehensiveness or accuracy of the information
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
SUCCESSION CAUSE NO. 510 OF 1997
EDWARD ALDRINE NYABANDO ................................................................................APPLICANT
The application was taken out on the grounds that the grant was obtained unlawfully, fraudulently and by a single administrator. The applicant also contented that the respondent did not obtain consent from all the other beneficiaries before the grant was issued to her and subsequently confirmed contrary to the mandatory requirements of the law. As proof of the respondent’s acts of fraud, the applicant contented that she was not the only beneficiary of the estate of the deceased as there were others who did not consent or issue a citation of their intention not to petition for the said grant. Using the grant she obtained as aforesaid, the respondent managed to transfer to herself land parcel Central Kitutu/Mwamosiaria/361 hereinafter “the suit premises”. In the process she disinherited other bonafide beneficiaries. Since then she had transferred portions of the suit premises to strangers without the applicant’s consent.
The respondent replied to the applicant’s accusations in terms that at the time of filing the petition for the grant of letters of administration intestate, the applicant consented to her doing so. In the premises, the applicant’s assertion that she acted fraudulently has no basis at all. Following the grant she proceeded to subdivide the suit premises among her sons, the applicant included as follows:
- Charles Ondieki Nyabando – Kitutu/Mwamosioma/2333 and 2338.
- Titus Masengo Nyabando – Kitutu/Mwamosioma/2331,2332 and 2340.
- Edward Aldrine Nyabando – Kitutu/Mwamosioma/2334 and 2341.
When the application came up for directions before Musinga J. on 21st May, 2010, parties agreed that the same be disposed of by way of affidavits on record and by written submissions. Subsequent thereto, parties filed and exchanged written submissions which I have carefully read and considered.
“a. That the proceedings to obtain the grant were defective in substance;
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;
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
iii. To produce to the court, within the time prescribed, any such inventory or account of administration as it 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
In the instant application, the applicant has anchored his complaint on fraud. He thinks that his mother acted fraudulently because she petitioned for the grant as a sole administrator and that he was never consulted nor was his consent sought and obtained before the grant was issued and subsequently confirmed to her. Fraud is a very serious charge to make against a party. The burden of proving fraud is indeed very heavy. It is not on a balance of probability like in any other civil claims nor is it beyond reasonable doubt as in criminal cases. However the standard of proof in this case is in between the aforesaid standards of proof.
“…When a deceased has died intestate, the court shall, save as otherwise expressly provided, have a final discretion as to the person or persons to whom a grant of letters of administration shall, in the best interest of all concerned, be made, but shall, without prejudice to that discretion, accept as a general guide the following order of preference:
b. Other beneficiaries entitled on intestacy, with priority according to their respective beneficial interests as provided by part V.
The applicant being a son of both the deceased and respondent could not in the circumstances taken precedence over his mother.
According to the letter dated 31st October, 1997, addressed to the Deputy Registrar of this court by the chief, Kisii town, he said in pertinent paragraph
“…Also or parcel No. Central Kitutu/Mwamosioma /585 there is one purchaser Mr. Erick Barongo Aminga ID No. 910785651 who had bought whole share of Mr. Edward Aldrin Nyabando ID/No. 9110457… so that she can get the necessary papers which will enable her use in subdividing the said parcel and may transfer and give each of her son his title deed and also the same to the purchaser Mr. Eric Barongo Aminga …”. From the foregoing, it is quite clear that the respondent was given his share of the land long even before the petition was filed and he did not protest much as it was illegal. He proceeded to sell the same to the third party. He did not then object to being given the land in the absence of a confirmed grant as it suited him then. He cannot be heard to fault that process when he, was in the forefront in violating the same.
I have also looked at the annextures in the replying affidavit filed by the respondent. In particular I have looked at the suit filed by the applicant against one, Simon Mokindu Kiema, in which he sought an order cancelling the certificate of title in respect of land parcel Central Kitutu/Mwamosioma/2344. In that suit he claims to have brought it as the donee of the respondent who had taken out letters of administration to administer the estate of her late husband. Here again, the applicant demonstrates that as long as the occasion suited him, he had no qualms using the grant which he now seeks to impugn to advance his cause. It is also instructive that much as the applicant accuses his mother of subdividing the suit premises and dishing out portions thereof to strangers, he did not as much as indicate who these strangers were. However, it is now apparent that some of strangers are indeed those he himself sold his inheritance to. Is it possible therefore that the applicant is merely seeking the revocation of the grant that was regularly and lawfully obtained so as to reclaim his parcels of land sold as aforesaid. From what I have seen so far on record, I am persuaded that indeed, that is the ultimate goal of the applicant. On the whole, I have no doubt at all that at the institution of this succession cause, the applicant was in the loop throughout and he is estopped from stating to the contrary. There is no evidence at all of fraud perpetrated on the applicant by the respondent.
Finally, and if I may ask, out of all the four brothers, why is it that it is only the applicant who is seeking to revoke the grant? If his complaint was genuine, I am certain that his other brothers would have joined the fray in his support. That they have not can only confirm that the applicant is a lone ranger and the application is purposely brought to achieve ulterior motives.
Ruling dated, signed and delivered at Kisii this 31st day of March, 2011.