Beatrice Penina Anupi v Philip Manyasi Kotia [2013] KEHC 5658 (KLR) | Revocation Of Grant | Esheria

Beatrice Penina Anupi v Philip Manyasi Kotia [2013] KEHC 5658 (KLR)

Full Case Text

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KAKAMEGA

SUCCESSION CAUSE NO. 74 OF 2008

IN THE MATTER OF THE ESTATE OF THE LATE MAKANGA MANYASI – DECEASED

BEATRICE PENINA ANUPI ……………..….………………………………... APPLICANT

VERSUS

PHILIP MANYASI KOTIA ………………………………….……………… RESPONDENT

R U L I N G

The Summons for annulment of grant dated 11/3/2008 seeks the following orders:-

The Honourable Court be pleased to revoke the grant of letters of administration intestate issued toPHILLIP MANYASI KOTIAon the 19th September 2005, on the grounds that the grant was obtained fraudulently by making a false statement and/or by concealment from the court of something material to the case.

An order do issue for the rectification of the register with respect to title No.W/BUNYORE/EBUSAKAMI/1254so as to cancel the name ofPHILIP MANYASI KOTIA.

The applicant, Beatrice Penina Anupi in her affidavit in support of the summons described her late father as a brother to the deceased herein.  The deceased was not survived by any children or wife.

According to the applicant, the respondent, Philip Manyasi Kotia who is a step brother to the deceased obtained a grant of letters of administration to the estate of the deceased fraudulently.  The applicant alleges as follows against the respondent:-

The respondent described himself as a son to the deceased when he was a step brother to the deceased.

The respondent failed to disclose that one beneficiary by the name Harrison Eyulewas a minor and that the deceased also had other nieces and nephews who survived him.  The respondent falsely reflected one Kennedy Okoko Osiako as a child of the deceased.

The respondent did not obtain the consent of the applicant and her mother who ranked higher in priority.

It was further averred that after obtaining the grant, the respondent transferred land piece No. W/Bunyore/Ebusakami/1254 to his name.

The applicant filed a further affidavit and a supplementary affidavit which gives mere background information and details relating to the entire estate of the deceased.  However, only the aforestated property is the subject of the application at hand.

In opposition to the application, the respondent filed a replying affidavit sworn on 11/12/2008.  In the said affidavit the respondent describes himself as a brother to the deceased.  According to the Respondent, he is entitled to an equal share of the estate of the deceased.  The respondent’s stand is that the applicant was aware of the making of the grant of letters of administration herein.

According to the applicant, it was the applicant’s father who sold land parcels No. W/Bunyore/1677 and the respondent and land parcel No. W/Bunyore/1274 which were all properties left behind by the deceased herein.  The respondent had no problem with transferring half of land parcel No. West/Bunyore/1254 to the applicant.

The respondent accused the applicant of selling land parcel No. West/Bunyore/1274 to one Mary Ayule when it had already been sold to one Harrison Osiako the father to Kennedy Osiako Okoko.

The respondent has in his affidavit conceded that he is a brother to the deceased and not a son.  In the petition for letters of administration, the respondent described himself as a son to the deceased.  The respondent also described one Harrison Osiako and one Harrison E. Tole as some of the survivors left behind by the deceased.  That could not be the correct position as the respondent has stated in his replying affidavit that Harrison Osiako is a purchaser.  The respondent also failed to disclose the applicant and her mother as some of the beneficiaries.  No consent was obtained from the applicant when the court was petitioned for the grant.

The respondent gave the estimate value of the estate of the deceased as Kshs.150,000/=.  This was beyond the jurisdiction of the Vihiga SPM’s Court as provided for under section 48 of the Law of Succession Act.

The application has merit and is allowed.  A new grant to issue in the joint names of the applicant and the respondent.  Costs of the application to the applicant.

B. THURANIRA JADEN

JUDGE

Dated and delivered at Kakamega this 27th day of June2013.

…………………………..

SAID J. CHITEMBWE

JUDGE