In re Estate of Gabriel Sikedi Mukupe (Deceased) [2022] KEHC 12200 (KLR)

In re Estate of Gabriel Sikedi Mukupe (Deceased) (Succession Cause 284 of 2010) [2022] KEHC 12200 (KLR) (7 June 2022) (Ruling)

Neutral citation: [2022] KEHC 12200 (KLR)

Republic of Kenya

In the High Court at Busia

Succession Cause 284 of 2010

JR Karanja, J

June 7, 2022

IN THE ESTATE OF GABRIEL SIKEDI MUKUPE (DECEASED)

In the matter of

James Mwima Sikedi

1st Petitioner

Alfred Okumu Sikedi

2nd Petitioner

Ruling

1. The basic prayer in the summons for revocation of grant dated March 22, 2021 is for revocation of grant issued on July 11, 2011 and confirmed on November 1, 2012 in favour of the two petitioners/respondents, James Mwima Sikedi and Alfred Okumu Sikedi.The applicant /objector, Mary Makungu Difu, includes additional prayers two and three which are essentially dependant on the main prayer one.The main ground for the application is that the grant was obtained by the petitioners in a manner which was fraudulent to the extent that the petitioners made false statements and concealed material facts when applying for and obtaining the grant.

2. In her supporting affidavit dated March 22, 2021, the objector avers that she is the widow of the late William Josi Difu who was son to the late Difu Ngodi who in the year 1978 allegedly purchased a portion of the estate property from the deceased herein, Gabriel Sikedi Mukoye, who passed away before transferring the purchased portion to the late Difu Ngodi. Therefore, the petitioners while applying for the grant failed to disclose this liability thereby depriving the objector of her interest in the estate property.The copy of the alleged sale agreement between the deceased and the late Difu Ngodi was annexed to the supporting affidavit.

3. The petitioners opposed the application on the basis of the averments contained in their replying affidavit dated February 2, 2022. Both parties through their respective advocates argued the application by way of written submissions which were filed herein and after having considered the application on the basis of the supporting grounds and the rival submissions it was clear to this court that the main issue for determination was whether the objector is indeed entitled to a portion of the estate property by virtue of a sale agreement made between her father-in-law and the deceased. If the answer is in the affirmative, then it would follow that her interest in the estate was wrongly omitted by the petitioners by their failure to include the interest as a liability to the estate.

5. The petitioners, while applying for the grant provided a letter dated August 11, 2010 from their chief which indicated that the entire estate property, being parcel No Bunyala/Bulemia/2028, belonged to the deceased.Indeed, as indicated in the search certificate dated June 18, 2012, the property was first registered in the name of the deceased in 1988, meaning that the deceased enjoyed indefeasible title to the property and as such, owned it to the exclusion of any other person.

6. Although the search certificate indicates that a caution was placed on the title by the late husband of the objector, it did not invalidate the deceased’s ownership of the estate property which accrued in 1988 while the caution was placed in 1997 one year after the death of the deceased in 1996 and before the property was transmitted to the petitioner vide the certificate of confirmation of grant issued herein on November 1, 2012. In any event, the petitioners alluded to the fact that the caution was removed later in the year 2015. In view of all the foregoing, the validity of the sale agreement is highly doubtful such that it cannot stand as prove of the alleged objector’s interest in the estate property.In the circumstances, the petitioners cannot be said to have obtained the grant and the accompanying certificate of confirmation of grant by fraud or false statements or misrepresentation or even by concealment of material facts.

7. In sum, the objector’s claim was not proved as required thereby rendering the present application devoid of merit.Accordingly, the application is dismissed with each party bearing their own costs.Ordered accordingly.

DATED & DELIVERED THIS 7TH DAY OF JUNE 2022J R KARANJAHJ U D G E