In re Estate of Dingli Kidanya (Deceased) [2021] KEHC 9673 (KLR)

Full Case Text

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT KAKAMEGA

SUCCESSION CAUSE89 Of 1989

IN THE MATTER OF THE ESTATE OFDINGLI KIDANYA(Deceased)

B E T W E E N:

ESTONE KALEME.................................................................................Petitioner/ Applicant

and

The Estate of HEZEKIAH KYADIVA/LEDESI MMBOGA CHADIVA

The Estate of JAMES ABWUNZA DINGLI/RUTH IMARI ABWONZA

The Estate of SELINA KANGUHA/BERNARD STANLEY OCHINJO

KENDRICK LIHASI..............................................................................................Beneficiaries

RULING

1. The Court has before it an application for the Confirmation of Grant for the Estate of Kingili Kidanya. Dingli Kidanya passed away on 8th December 1982 aged 69 years. He was a farmer. He was survived by the following offspring:

(1) Estone Kalemela Dingli (Son)

(2) Hezekiah Kyadiva Chadiva (Son)

(3) James Abwunza Dingli (Son)

(4) Selina Kanguha

It is said there was also a grandson called Bernard Stanley Ochingo.

2. At the time of his death the Deceased owned two parcels of land namely, Kakamega/Lugova/451 (0. 8ha) and Kakamega/Lugovo/460 (1. 4 ha). Although the Schedule of Assets appears to be omitted, the Official Searches for those properties confirm that ownership. The Administrator was appointed pursuant to the grant of Letters of Administration issued on 13th July 1989. Shortly thereafter, the Administrator transferred at least one of those properties into his own name.

3. The Administrator filed a Summons for Confirmation of grant on 28th May 2019. He lists that the Deceased was survived by the following family members:

(a) Estone Kalemela Dingili

(b) Hezekiah Kyadiva

(d) Bernard Stanley Ochinjo

(e) Kenrick Lihasi

That List omits the daughter of the Deceased Salina Kanguha. It also omits any spouses that may have been alive at the time of the death.

4. At paragraph 8 of the Supporting Affidavit the Administrator sets out the intended distribution. He names two new person, Ruth Imari Abwonza who is the widow of James and Ledesi Mmboga Chadiva who is the widow of Hezekiah. He names Kenrick Lihasi as the grandson and Bernard Stanley Ojinjo as a son. When the matter came before Justice Njagi on 19th October 2020 he directed that the Administrator file a letter from the Chief verifying who are the heirs/dependants/beneficiaries of the Estate. That Letter is dated 11th November 2019 and is incorrectly address to the Magistrate. The Letter is signed by the Assistant Chief Chango Sub-Location. Rather than providing the verification required, that Letter purports to direct the Court on the correct distribution of the Estate.

5. It is noteable that the Letter defines two individual differently from the Summons. Firstly, Bernard is described as a grandson – not a son and secondly, Kenrick Lihasi is described as a BUYER not a grandson as alleged. It is not explained from whom the portion of land was purchased. Those omissions and discrepancies are significant. When the matter came before the Court the Administrator informed the Court that Selina passed away in 1996. Also the Deceased is now said to be called Philip Dingili Kidanya, yet the name Philip was not included in the death certificate or any documents filed. There was some prevarication as to the identity of “Philip”.

6. In the circumstances, this Court is not in a position to confirm the grant on the information currently before it. Rather than dismiss the Application, it is ordered that every surviving member shall attend Court to signify their agreement to the distribution and the verify the identities of the beneficiaries.

7. Further, in the circumstances, this Court is not satisfied that the Administrator is not being fully frank with the Court. He will be afforded one final chance after which this Court will consider revoking the Grant.

Order accordingly,

FARAH S. M. AMIN

JUDGE

SIGNED DATED AND DELIVERED atKAKAMEGAon this the20th day of January 2021

In the Presence of:

Court Assistant: Fred Owegi

Applicant: Estone Kidanya and Bernard Stanley Otichillo in person