ALFAYO AMUKHUMA NYAMASI V DAVID OTUMA AMWANDA [2012] KEHC 1418 (KLR)

REPUBLIC OF KENYA

High Court at Kakamega

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ALFAYO AMUKHUMA NYAMASI .........… PETITIONER/RESPPNDENT

AND

DAVID OTUMA AMWANDA ……………...………..…….. APPLICANT

R U L I N G

The Chamber Summons dated 8. 8.11 seeks orders that the grant of letter of Administration to the respondent, ALFAYO AMUKHUMA MAKWATA made on the 15th October 1991 and confirmed on the 18th June 1992 be revoked and or annulled on the following grounds that:-

a)The grant was obtained fraudulently by making of false statement or by concealment of material facts.

b)The grant was obtained by means of untrue allegations.

The application is supported by the affidavit in support sworn by the applicant DAVID OTUMA AMWANDA on 8. 8.2011.

According to the said affidavit, the applicant is the daughter of the deceased, AMWANDA MAKWATA who died on 6th September 1977. The deceased was the registered owner of L.P. NO. KISA/MUSHANGUBU/493. The grant of letters of Administration in the estate of the deceased was made to the respondent on 15th October, 1991 and confirmed on 18th June, 1992.

The applicant’s contention is that the respondent was not related to the deceased and falsely presented himself as a beneficiary to the court. That when the fraud was discovered the matter was reported to the police and the respondent was arrested, charged, convicted and sentenced in Kakamega CMCRC. No. 1230 of 1993.

The following are the true survivors of the deceased according to the applicant:-

Leonida Amakobe - Widow

David Otuma Amwanda- Son

Rapha Ayuma - Daughter

Simbi Makwata- Son

It is further averred by the applicant that the respondent had himself registered as the proprietor of land parcel No. KISA/MUSHANGUBU/493 thereby disinheriting the true survivors of the deceased.

No papers were filed in opposition to the application. When the application proceeded to hearing on 17. 7.12, the respondent was not present although duly served as per the affidavit of service sworn by the process server. The applicant’s affidavit evidence has not been controverted by any other evidence.

Consequently, I allow the application as prayed. Costs to the applicant.

Delivered, dated and signed at Kakamega this 24th day of October, 2012

B. THURANIRA JADEN

J U D G E