Fred Lijina Isayi v Laban Lisili Isayi [2017] KEHC 9406 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KAKAMEGA

FAMILY DIVISION

SUCCESSION CAUSE NO. 434 OF 2013

IN THE MATTER OF THE ESTATE OF JONATHAN ISAYI ISOHE (DECEASED)

AND

IN THE MATER OF FRED LIJINA ISAYI ………... PETITIONER

AND

IN THE MATTER OF LABAN LISILI ISAYI……….APPLICANT

R U L I N G

The Application

1. The application for consideration by this court in the chamber summons dated 14. 3.2017 by which the applicant prays that the orders made in the ruling dated 13th December, 2016 be reviewed.  The application is premised on grounds that there is an error apparent on the face of the record namely that Land Parcel No.ISUKHA/VIRHEMBE/1265 should be shared by the two administrators and further that Hezron Ikatwa Isayi’s children and Patrick Shamala Yakhama’s children should be excluded from having a share in the said parcel of land since they were provided for by the deceased who settled them on land parcel Isukha/Virhembe/1266 before he (deceased) died.

2. The application is also supported by Fred Lijina Isayi vide his replying affidavit sworn on 10. 7.2017.

Background

3. This cause was commenced way back on 21. 06. 2013 by way of a petition for grant of Letters of Administration Intestate to the estate of Jonathan Isayi Isohe (deceased) who died on 13. 04. 1992 at the age of 85 years. The Petitioner was one of the two sons of the deceased, the other son being Laban Lisili Isayi. The grant was issued and subsequently confirmed.

4. By the chamber summons dated 08. 05. 2015, the objector/applicant sought revocation of the said grant on grounds that Fred Lijina Isayi, the Petitioner obtained the grant through fraud.  In his ruling dated 13. 6.2016 this court (though differently constituted) made the following orders.

1. The grants are to be issued afresh with parties being joint administrators

2. The grants are confirmed with land Isukha/Virhembe/1265 to be shared into 4 equal shares to the petitioner applicant, Hezron Ikatwa Isayi’s children and Patrick Shamala Yakhama’s children as wished by the deceased.

3. Parties to bear their own costs.

5. The above are the orders sought to be revised so that the children of Hezron Ikatwa Isayi and those of Patrick Shamala Yakhama are excluded from order number 2 issued by my Brother Mr. Justice Charles Kariuki in his ruling dated 13. 4.2016.

Analysis and Determination

6. I have now carefully considered the facts surrounding this matter and in particular this court’s ruling dated 13. 4.2016. In the said ruling the court clearly faulted the petitioner for concealing certain material facts from the court namely the fact that there are other beneficiaries to the deceased’s estate other than the two administrators.  The court also noted that there was no evidence in the form of a document on division of the suit property into 4 portions.  It also appears to me that the allegation that Hezron Ikatwa Isayi and Patrick Shamala Yakhama were not to get a share in plot 1265 is not proved.  This finding is made stronger by the fact that no member from the two families has sworn any affidavits to confirm the position taken by the applicant and the petitioner regarding the alleged distribution.  What this then means is that there is neither an error apparent on the face of the record nor the emergence of new and compelling evidence that would lead or make this court to review the orders made on 13. 4.2016.  No documents were annexed to the applicant’s supporting affidavit to buttress the proposals made by the applicant and supported by the petitioner.

Conclusion

7. For the above reasons, I find that the application dated 14. 03. 2017 has no merit and is accordingly dismissed.  Parties shall bear their own costs.

It is so ordered

Ruling delivered dated and signed in open court at Kakamega this 5th day of October, 2017

RUTH N. SITATI

JUDGE

In the presence of

Mr. Okango holding brief for Mr. Mukabwa……for applicant

present in person……………………......…..…..for Respondent

Polycap Mukabwa………………………........….Court Assistant