In re Estate of John Joseph Ooko Odula (Deceased) [ [2019] KEHC 7100 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT KISUMU

(CORAM: CHERERE-J)

SUCCESSION CAUSE NO. 430 OF 2011

IN THE MATTER OF THE ESTATE OF JOHN JOSEPH OOKO ODULA (DECEASED)

BETWEEN

CONNIE ADHIAMBO ODULA............................................1ST APPLICANT

CAROLINE APIYO ODULA...............................................2ND APPLICANT

GAUDENTIA ATIENO ODULA.........................................3RD APPLICANT

AND

VINCENT OGUTU ODULA................ADMINISTRATOR/ RESPONDENT

RULING

Background

1. VINCENT OGUTU ODULA (hereinafter referred to as Administrator/ Respondent)was appointed the administrator of the deceased’s estate on 29th June 2015.

2. A Certificate of Confirmation of Grant identifying respective shares for the beneficiaries including the Applicants herein was issued on 6th December, 2016.

Application

3. The applicants have by Notice of Motion dated 23rd January, 2019 moved the court seeking orders that the Administrator/Respondent be substituted with the 1st Applicant.

4. The application is based on grounds among others that the Administrator/Respondent has mismanaged the estate, leased portions of the estate, denied the Applicants access to their rightful shares and failed to distribute the estate.

5. The application is also supported by an affidavit sworn on 23rd January, 2019 by the Applicants in which they reiterate the grounds on the face of the application.

6. The Administrator/Respondent though served did not oppose the application or attend court when it came up for hearing on 6th May, 2019.

Analysis and Determination

7. I have considered the application in the light of the supporting affidavit and the applicable law.

8. Section82of Law of Succession Act(hereinafter referred to as the Act) provides the duties of the Personal representatives which include TO:

(g) within six months from the date of confirmation of the grant, or such longer period as the court may allow, to complete the administration of the estate in respect of all matters other than continuing trusts, and to produce to the court a full and accurate account of the completed administration.(Emphasis added).

9. I have perused the court record and there is no order extending the period for completion of the administration of the estate hereof beyond 6 months and the Administrator/Respondent is no doubt in breach of clear provisions of the law.

10. Section76of the Act provides as that:

“A grant of representation, whether or not confirmed, may at any time be revoked or annulled if the court decides, either on application by any interested party or of its own motion-

(d) that the person to whom the grant was made has failed, after due notice and without reasonable cause either—

(ii) to proceed diligently with the administration of the estate.

11. The foregoing section gives this court powers to revoke or annul a grant such as the one in this case and to substitute the administrator on account of the administrator’s failure to complete the administration.

12. The foregoing notwithstanding, the court takes the view that to revoke or annul the grant and to substitute the administrator might the effect of further delaying this cause whose grant was confirmed close to 3 years ago.

Disposition

13.  From the foregoing, this court declines to allow the Notice of Motion dated 23rd January, 2019 and in its place orders that:

1. TheAdministrator/Respondent is hereby granted 60 days to complete the administration of the deceased’s estate in terms of the Certificate of Confirmation of Grant dated 6th December, 2016.

2. TheAdministrator/Respondent is hereby put on notice that the court will not hesitate torevoke or annul the grant in the event that order (1) above is not complied with

3. Summons to issue to the Administrator/respondent for mention on …29th July, 2019….to confirm compliance

4. The DR of this court is directed to ensure that this order and the summons are served on theAdministrator/Respondent through the Chief God-Nyathindo Location and that an affidavit of service to that effect is filed

5. The Administrator/Respondent shall pay the costs of this application

DELIVERED AND SIGNED IN KISUMU THIS 9THDAY OF MAY2019

T. W. CHERERE

JUDGE

In the presence of:

Court Assistant- Felix

Applicants- Present in person

Respondent              - Absent