In re Estate of Lucas Otieno Obiero (Deceased) [2017] KEHC 924 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT HOMA BAY

SUCCESSION CAUSE NO.447 OF 2014

FORMERLY OYUGIS SUCCESSION CAUSE NO.262 OF 2013

IN THE MATTER OF THE ESTATE OF:

LUCAS OTIENO OBIERO.......................................................DECEASED

AND

ANNE AOKO MBECHE...............................PETITIONER/RESPONDENT

VERSUS

SUSAN ADHIAMBO OTIENO..........................OBJECTOR/APPLICANT

JUDGMENT

1. When LUCAS OTIENO OBIERO(deceased) died on 19th September 2013, ANNE AOKO MBECHEpetitioned for and obtained grant of letters of administration of his estate, in her capacity as his widow.

In her affidavit in support of the confirmation of grant she listed beneficiaries are herself;

SUSAN ADHIAMBO OTIENO– Deceased’s widow

ELSA ACHIENG OTIENO– Daughter

WALTER OLOO OTIENO– Son

J A O– Daughter

T A O– Daughter

G A O– Daughter             minors

B O O- Daughter

2. When the grant was confirmed on 28/05/15 the estate was distributed as follows:-

1) JOASH MIGAN OBIERO– L.P. NO. C. KASIPUL/KAMUMA/712(Whole share)

2) MONICA ACHIENG OBIERO – L.P. NO.C. KASIPUL/KAMUMA/2984 (Whole share)

3) SUSAN ADHIAMBO OTIENOandMONICA ACHIENG OBIERO – LP NO.C. KASIPUL/KAMUMA/3081 – 0. 5 HA.

(To hold in trust for ELSA ACHIENG OTIENO, WALTEROLOO OTIENO, J A O, T,A O, G A O and B O O in equal shares)

4) ANNE AOKO MBECHE – LP NO. C. KASIPUL/KAMUMA/3081 – 0. 2 HA.

5) JOASH MIGAN OBIERO – L.P. NO. C. KASIPUL/KAMUMA/3081 – 0. 1 HA.

The grant was issued on 28th May 2015.

3. Upon hearing that the grant had been confirmed in favour of ANNE (the Petitioner/Respondent), SUSAN ADHIAMBO OTIENOfiled a summons for revocation f the grant and seeking that the Defendant be compelled to render full and accrued account of the sum of Kshs.381,215/20 cents she collected from RED HOT BRANDING LIMITEDon 19th November 2013 on behalf of the deceased’s estate.

4. The plaintiff/applicant also sought that the petitioner deposits the received sum of Kshs.381,215/20 cents in court pending determination of her application for revocation, SUSAN made these prayers in her capacity as the widow of LUCAS OTIENO OBIERO, saying that the grant was obtained fraudulently and by concealment from the court of material information.

5. Further that the grant was obtained by means of untrue allegation of fact essential in a point of law to justify the grant notwithstanding that the allegations were made in ignorance or inadvertently. The plaintiff contends that the petitioner (defendant) is not a wife to the deceased nor a family member but a stranger and a fraudster.  She denies that she (Susan) or any of her adult children signed the consent form regarding distribution of the deceased’s estate.

It is the plaintiff’s grievance that the mode of distribution provided for in the confirmed grant, completely excluded her (as the widow) and the children of the deceased, in favour of the deceased’s mother and brother who rank very far down in the order of consanguinity.

6. The petitioner is accused of illegally and fraudulently transferring one of the deceased’s property namely PLOT NO. KASIPUL/KAMUMA/2957 into her name on the basis that it was an asset belonging to the deceased’s father, yet it belonged to the deceased and was never inherited by him from his father.

The petitioner is also accused of intermeddling with the deceased’s estate and actually swindling the deceased’s estate of the sum of Kshs.381,215/20 which was meant to be paid to the estate by RED HOT LIMITED for the services the deceased had rendered to the company.

7. In the supporting affidavit, SUSAN ADHIAMBO OTIENOdescribes herself as the deceased’s only wife sayingANNE AOKO MBECHEwas never married to the deceased, and was infact married to oneEUGENE KIZITO ONYANGO(deceased) ofNYAKACH KADIANGA (NYABONDO CLAN)and is being brought into the deceased’s family by the deceased’s mother after the death ofLUCASto help defraudSUSANand her children of their inheritance.

8. SUSANinsists that parcel NO. C. KASIPUL/KAMUMA/2957was purchased by the deceased and was never an inheritance from his father nor was it registered in the name of the deceased to hold in trust for his siblings.

It is her further contention that the deceased’s mother MONICAH ACHIENG OBIERO misrepresented to the court which issued the grant, that all her daughters were deceased and that she only had two sons i.e. the deceased and JOASH MIGAN OBIERO, yet the daughters namely ROSE AUMA and ISKA ADOYO are alive.

9. ANNE denied acting fraudulently, or concealing any material information, saying the plaintiff was involved in the succession cause at all stages, and the only reason her name featured as the petitioner is because she was the one paying for the costs incurred in filing the petition as SUSAN had refused to contribute any money.

10. ANNEinsists she was married to the deceased, and they lived together from the year 2006 until he passed on and she even used her own money being Kshs.250,000/= to clear his hospital bills.  She therefore requests that SUSANrefunds the money she expended on the deceased before the benefits due to the deceased’s estate can be shared out.

11. The defendant (ANNE) explained that the money from RED HOT COMPANYwas paid to her because the deceased had introduced her to the company’s manager as his wife and next of kin. Upon receiving the money being Kshs.381,215/=, she paid GEORGE OKIRIKshs.190,000/= which the deceased owed him and she was left with a balance of Kshs.191,215/=.

She also accuses the deceased’s son WALTER OLOO of illegally withdrawing a sum of Kshs.181,714/= from the deceased’s bank account when he was ailing in hospital saying that was part of the payment from RED HOT COMPANY LIMITED.

12. ANNE pointed out that she followed the correct procedures in obtaining the grant and obtained a letter from the area chief who listed all the beneficiaries of the deceased’s estate.

13. However SUSAN countered this in a further affidavit saying after obtaining the letter from the chief, the petition for grant of letters was to be made by three people, yet the petitioner secretly applied for the same by herself.  She dismissed the letter by the chief of Kamagak West Location as part of the fraud saying the chief colluded with the defendant/petitioner, and he had prior information about the OBIERO family dispute, and simply doctored the information so as to include the defendant as a wife to the deceased.  It is her contention that the mere fact of the deceased introducing the defendant as his wife did not make her into one.

14. The plaintiff also denied that the defendant had ever taken care of the deceased pointing out that deceased had a medical insurance cover and says that demanding a refund of money used for treatment of the deceased demonstrates that the defendant is an outsider who is doing business with the estate of the deceased and not a wife.  She maintains that the defendant just wants to enrich herself before going back to her matrimonial home in NYAKACH.  She laments that the petitioner/defendant illegally received money from RED HOT BRANDING COMPANY LIMITEDthrough misrepresentation then misappropriated the same without considering that the deceased’s children by SUSAN had all dropped out of school.

15. The claims by defendant/petitioner that the deceased owed GEORGE OKIRI Kshs.190,000/= are dismissed as fraud and plaintiff pointed out that the said GEORGE attended the deceased’s burial where all creditors of the deceased were requested to confirm their claims, yet he never raised any issue about a debt, and that infact nothing was paid to GEORGE OKIRI.  The matter proceeded by way of viva voce evidence, where SUSAN stated she got married to the deceased on 4th April 1990 and they had 5 children namely:-

ELSA ACHIENG

WALTER OLOO

J A

G A

B O

16. It was her evidence that the deceased had three other wives namely LILLIAN ADHIAMBO, EUNICE AWINO and MARTHA AKINYI – one died, and two left the relationship.  She described the defendant as a friend to her husband NOT a wife, saying ANNE had never been introduced in her as a wife.  She stated that when ANNE accompanied the deceased to a funeral, he said she was his friend.

17. The plaintiff disowned the letter dated 30/12/2015 which listed her and the defendant as widows of the deceased, saying she was not aware of that letter, nor was she provided with any consent form.  She disowned the signature on the form P&A 80 which petitioned for letters of administration. Upon being shown the form P&A 57 where ANNE presented her as a guarantor and personal surety to the estate, SUSAN stated:-

“I was never asked to be a guarantor.  I was not aware nor did I sign this form.”

It was the same response with regard to form P&A 11 where she was named as the surety to her husband’s properties saying:-

“… at no time did anyone request me to be a surety to my husband’s estate …  This is not my signature.”

18. The plaintiff wondered how JOASH MIGAN OBIEROand MONICA ACHIENG OBIERO(her brother in-law and mother in-law) ended up benefiting from the estate yet they were not listed as beneficiaries.

The plaintiff denied ever associating with ANNE’s relatives whether for funerals or for ANNE’s dowry payment saying she does not even know ANNE’s relatives.

19. On cross examination the plaintiff denied suggestions by ANNE that when her children ELSA and WALTER went to Nairobi they lived with her, saying the children stayed with their father and all she knew was that ANNE was a friend to the deceased for about 3 months.  She denied ever seeing any emissary sent to inform her about the succession matter or even confirmation of the grant.

20. On claims that the defendant would accompany the deceased to his rural home and even spend the night in the plaintiff’s house, the plaintiff said:-

“You never accompanied LUCAS home frequently nor did you ever sleep in my house.”

On re-examination, the plaintiff stated:-

“I got to know Anne was my husband’s girlfriend when he was still alive.  I knew her three months before my husband died.”

21. Upon being shown the letter written by the area chief listing her and her children and defendant as the beneficiaries of the deceased’s estate, the plaintiff said she did not know how the chief got her identity card number nor the correct ages of her children as she was not the source of information.

22. The defendant insisted she got married to the deceased under Luo custom and that the deceased formally introduced her to SUSAN as his first wife.  She did not have any children with the deceased and confirmed she had been married to a man who died, and with whom she had one daughter named MERCY.  It was her evidence that when the deceased got sick and was hospitalized, she paid the hospital bills.

23. She explained that a week prior to his death, the deceased went with her to RED HOT BRANDING COMPANY, and introduced her as his wife, and he even told her the company owed him a lot of money.  That is why after his demise she went and collected the sum owing, in her capacity as the deceased’s wife.

24. That is when GEORGE OKIRItold her the deceased owed him some money for work done and materials purchased to the tune of Kshs.190,000/= and she paid him.  However she did not inform SUSAN about this payment.

She took the remaining amount and used it to pay some debts she owed – again she did not inform SUSAN about this. She assumed that since SUSAN and her son had gone to the deceased’s bank account and withdrawn Kshs.181,000/= then they were even.

25. It was the defendant’s evidence that after the deceased’s demise, she, SUSAN and WALTERwent to the local chief’s house, and the chief took them to his office and wrote a letter of introduction to enable them file the succession cause.  It was her evidence thatSUSANgave the ages of her children.  Thereafter they went to BANA advocate who gave them forms to sign and the defendant paid the money required. The forms were sent to Nairobi for gazetment eventually the matter went toOYUGISLaw Courts and the deceased’s brother JOASH MIGANtook a hearing notice to SUSAN to attend court for confirmation of the grant.  However, SUSANresponded thus:

“I will not go to Homa Bay, there is nothing I am going to do there even if police come, with their car to force me.”

26. Several hearing notices did not elicit any positive response and so confirmation proceeded in her absence – hence the contested mode of distribution which ANNEurges this court to uphold.

She insisted she was the deceased’s wife saying if she was a stranger to him, then her NHIF card could not have been accepted to make payments.  She pointed out that the deceased was admitted in hospital under her name.  The defendant testified that she also bought the clothes deceased was buried in, and that she did all this because she was living with the deceased as her husband.

27. Contrary to SUSAN’s denials, ANNE, maintained that she lived with SUSAN’s children along with the deceased in Nairobi. Further that at one time when SUSANwas injured and came to Nairobi, she is the one who took care of her and accompanied her to Kenyatta National Hospital and even cooked food for her.  She stated that whenever she travelled to the village in the company of the deceased, she would sleep inside the plaintiff’s house, and they would cook together and share meals and engage in various social activities.

28. It was her evidence that she got married to the deceased under Luo custom and dowry was paid in the year 2008 when the deceased accompanied by his brother visited her home and left some Kshs.50,000/= for her mother as “Ayie”(meaning and signifying acceptance to give away a daughter).

She explained that her mother received the money in the presence of her sisters, aunt, and elders (who are now deceased) because her father was already dead.

29. On cross examination, Anne denied suggestions that she had seen or had access to SUSAN’s national identity card or the birth certificates of SUSAN’s children.  Anne also conceded that they had resolved to have three persons appointed as administrators of the deceased’s estate and blames the advocate who helped prepare the documents used in filing the cause saying “… in my mind it’s very clear that I did not refuse to include them as administrators.”

30. The defendant also admitted receiving money due to the estate after the deceased died, before filing the succession cause saying she did not know that she was required to get authority from the court before collecting the money.  Consequently she did not include the money as one of the assets because by the time of filing the cause it was no longer available.

She also admitted using part of the money to pay GEORGE OKIRI who claimed that the deceased owed him some money.

31. The defendant explained that in the affidavit supporting her application for confirmation of grant, she proposed that all the property be given to her “because of the ancestral land at home which was in the name of Lucas, the intention was that it be registered in my name then eventually give it back to the family”.  However when she presented the proposal, the judge thought otherwise and exercised his discretion in distribution to include the deceased’s mother and brother.

On cross examination the defendant stated:-

“maybe the only defect I concede in my indication that I was the only administrator instead of the three of us.

.…. The grant can be amended to incorporate other people, SUSAN and WALTER ….. I have not completed distribution of the land, they are intact.”

32. MONICA ACHIENG OBIERO (DW2), the mother of LUCAS said ANNE AOKO is her daughter in-law as she got married to LUCAS in the year 2006.  She stated SUSAN ADHIAMBO is also her daughter in-law, being the first wife to LUCAS.  She testified that ANNE was introduced to her one April, after SUSANhad earlier been summoned by LUCAS to travel to NAIROBIto meet ANNE.

33. It was her evidence that SUSAN was aware of the Succession Cause ANNE had filed as the former had infact accompanied the latter to the chief’s office.  Later DW2 was called to BANA advocate’s office, then to court for confirmation of the grant when the proposed mode of distribution was read out and she agreed.

34. It was her evidence that ANNE and SUSAN attended various family functions including the burial of her (DW2) father, mother and brother where both women helped her in cooking for the guests.  She stated:-

“ANNE and SUSAN came and cooked at the funeral of PUSU my younger brother in-law, and you (ANNE) came as one of the wives of my home.”

She insisted that ANNE lived with her son, and visited the rural home as a wife – not a visitor, and she participated in family social functions as a daughter in-law.

35. On cross examination, DW2 stated that the deceased accompanied by his brother went to ANNE’s home in KANO. She explained that despite the parcels being registered in the deceased’s name, the parcel NO. KASIPUL KAMUMA/2984 was purchased using funds jointly pooled from her husband, JOASH and the deceased.

36. JOASH MIGAN(DW2) the deceased’s younger brother also stated that ANNE was married to LUCAS as a 2nd wife. As far as he knew, ANNEhad lived with LUCAS since the year 2006 until 2013 when he died.  He too confirms that SUSAN was aware about the succession cause, but a dispute arose when the latter realized that all the assets were under the deceased’s name and control yet he was only to hold as a trustee.  They held discussions as a family to streamline everything but when a notice was served on SUSAN to attend court for confirmation of the grant, she snubbed the request, so the matter proceeded in her absence.  He stated:-

“All I’d pray is that my two sisters in-laws should sit and reconcile because I was satisfied with the mode of distribution Anne proposed.”

37. He confirmed having accompanied the deceased to Anne’s home where the deceased gave an envelope whose contents he did not know and intended to go and pay dowry.  He indicated that he is entitled to inherit the property registered in the deceased’s name saying:-

“My brother transferred all the property from our father’s name to his because he was the eldest and more able to follow on our father’s property.”

38. He however had no evidence to support this especially with regard to parcel NO. CENTRAL KAMUMA/2957 which by a sale agreement dated 03/11/1995 showed that the deceased purchased it from SOLOMON OYUKO.

39. ROSE AUMA OPONDA(DW4) a sister to LUCAS also confirmed that she knew ANNE as her sister in-law who had been married to LUCAS in the year 2006.

This was repeated by ISKA ADOYO(DW5) another of the deceased’s sister.

40. All the deceased’s other family members apart from SUSAN recognized ANNE as a wife to the deceased and their plea was for harmony and peace to prevail.  On the direction of this court referred this matter for mediation.  The first meeting held on 01/07/2017 by clan members of KORWA ‘A’ village unanimously acknowledged the deceased as a polygamist who had married other woman and they recognized ANNE AOKO MBECHE as a wife to the deceased with whom he had lived together in Nairobi.  The meeting noted that both women attended the deceased’s burial and sat together and even eulogized him.  The meeting was chaired by HEZRON OKEYO -nothing concrete came out of this meeting.

41. On 22/06/2017 and 31/07/2017 the court again advised the parties to try mediation on the matter.  On 26/07/2017, a meeting was held now under the chairmanship of STEPHEN ACHIENG MUMA– the first – issue pointed out was that members in the meeting distanced themselves from the earlier letter.  This meeting resolved that the earlier grant issued be revoked and another one be issued to SUSAN ADHIAMBO OTIENOas the legal wife to LUCAS OTIENO OBIERO.  However the petitioner (ANNE) and the deceased’s mother (MONICA) did not attend the meeting.

42. The issues for determination were:-

1) Whether the petitioner was married to the deceased.

2) Did the petitioner have capacity in law to petition for grant of letters of administration of the estate of the late LUCAS OTIENO OBIERO.

3) Was the confirmed grant defective in substance?

4) Was the grant fraudulently obtained by concealment of material information?

5) Was the estate fairly distributed?

6) Was there intermeddling of the estate?

WAS THE PETITIONER MARRIED TO THE DECEASED?

43. Mr. Mageto on behalf of the plaintiff submitted that the petitioner failed to prove the existence of a Luo customary marriage between herself and the deceased saying the petitioner did not call any witness or relative from her family side, instead relied only on evidence by the members of the deceased’s family whom he claimed to have been either coach or compromised to sideline the plaintiff and her children and deny them their lawful inheritance.

44. Counsel submitted that the essentials of a Luo customary marriage were discussed in the case of ROSEMARY AOKO MUNSAL –VS- NOEL NAMENYA MUNSAL BUSIA SUCC. CAUSE NO.4 OF 2008 to be:-

a) Payment of “Aye” ( I have accepted her);

b) Payment of dowry;

c) Luo marriage ceremony (Introduction of parties to parents and family/relatives of both sides).

It was also contended that no expert witness was called to address the court on the essentials of a Luo customary marriage, urging the court to be guided by the views expressed by DUFFUS JA in KIMANI –VS- GIKANGA [1965] EA 735 at 739 –

“… As a matter of necessity the customary law must be accurately and definitely established … the onus to do so must be on the party who puts forward customary law.  This might be done by reference to the book or document or reference and would include a judicial decision but in view, especially of the present apparent lack in Kenya of authoritative text books on the subject, or any relevant case law, this would in practice usually mean that the party propounding customary law would have to call evidence to prove that customary law, as would prove the relevant facts of his case.”

45. MR. MAGETO argued that the petitioner failed to prove payment of “Ayie” and also failed to prove payment of dowry within the meaning of Luo customary law, and she also failed to prove on introductory meeting comprising parents, family and relatives of both herself and the deceased at both homes.  It was contended that attending funerals, paying medical bills and funeral expenses, and even taking care of the children a man has sired with another woman does not make one a legally married wife under Luo custom.

46. In response the petitioner submitted that the existence of a Luo customary marriage had been met as the vital ingredients were:-

Capacity;

Consent by the parties and their respective families;

Dho Keny;

Commencement of cohabitation.

47. It was her contention that there was evidence of some form of “Ayie” being paid, and there was also evidence that she had cohabited with deceased for at least over 6 years.  She alluded to the deceased’s intention to pay dowry, saying that even if not paid during the deceased’s lifetime it would not invalidate the relationship as the same can be paid even after death.

48. The petitioner urged the court to find in any event, that the concept of presumption of marriage as a result of cohabitation is applicable in her situation as she had lived for a period with the deceased, and held themselves out to be husband and wife.  Was the petitioner a girlfriend or a wife?

49. It was admitted that dowry was not paid and there was no proper proof that the essentials of Luo customary marriage had been met.  The “Aye”given to the petitioner’s mother was not part of dowry but a prelude towards the steps to complete a marriage under Luo custom. Members of the deceased’s family are insistent that they regarded her as a wife, because she had lived with the deceased from the year 2006 to 2013 when he died. Indeed in the case of HORTENSIAH WANJIKU YAWE –VS- THE PUBLIC TRUSTEE COURT OF APPEAL CIVIL APPEAL NO.13 OF 1976 (unreported) Mustafa J stated:-

“I can find nothing in the Restated of African Law to suggest that …. Customary Law is opposed to the concept of presumption of marriage arising from long cohabitation.  In my view, all marriages, in whatever form they take, civil or customary or religious, are basically similar, with the usual attributes and incidents attaching to them.  I do not see why the concept of presumption of marriage in favour of the appellant in this case should not apply just because she was married according to … customary law.  It is a concept which is beneficial to the institution of marriage, to the status of the parties involved … and in my view, is applicable to all marriages.  The evidence concerning cohabitation was addressed at the hearing and formed part of the issue concerning the fact of marriage …”

This view was later amplified by Rawal (J) inRe: Estate of Wakaba (2008) 1 KLR (G & F) pg 328which held that:-

“Stringent application by consent of the customary would negate the latter and spirit of Section 3 of the Judicature Act.  Customary Law should be interpreted with flexibility and breadth of view.  Even in circumstances where parties fail to fulfill the ingredients of … customary law, as where dowry is paid to a female relative and the absence from a ceremony of male relatives from either side, a court may nevertheless find that there exists a valid marriage under customary law.”

I can do no better than adopt the views expressed by Kimaru (J) in T-vs-W (2008) 1KLR (G&F)pg 276 that:-

“Although the marriage procedures as envisaged by … customary law were not concluded, the … the parties begun cohabiting meant there was a marriage.  The applicant was the wife of the respondent by virtue of living together as such for over seven years.”

50. This in my view was quality cohabitation and not just mere friendship – the evidence clearly demonstrates that the deceased and the petitioner cohabited and conducted and held themselves out as husband and wife.

DID THE PETITIONER HAVE CAPACITY TO PETITION FOR GRANT?

51. The evidence presented is that at the initial stage, the petitioner and the plaintiff were pursuing the succession cause together but fell out when the plaintiff realized all the property was proposed to be confirmed in favour of the petitioner.  That would explain why the details regarding the plaintiff’s national identity card, and dates of birth in respect of her children were correctly quoted in the relevant Probate and Administration Forms.  Section 56 (1) (b)of the Law of Succession Act sets out the qualifications for appointment as personal representatives of the estate of a deceased person, and prescribes the number of persons at any particular time to a maximum of 4 persons who may apply for grant?  This includes the surviving spouse and children.

52. Since there were two houses, then obviously the two widows ought to have applied to be joint administrators.  Further since the elder son also wanted to be involved in the administration of his father’s estate he should have been included.  Little under that the petitioner realizes her mistake and concedes to this.

WAS THE APPLICATION FOR GRANT OF LETTERS OF ADMINISTRATIOND DEFECTIVE?

53. I think this one is a non starter, having found that the petitioner was a wife, and since the chief’s letter listed both widows and the children there was no defect to that extent.  However it seems the deceased’s mother and his brother were left out – both say they were entitled to inherit from the estate.

I think Section 39 (1)of the Law of Succession Actcomes into play where –

a) It can be demonstrated that the deceased’s parents and siblings were dependant on him; and

b) Where the intestate has left out surviving spouse or children then the father takes priority followed by the mother, then brothers and sisters.  Whatever the case Majanja J noticed the omission of some beneficiaries and included them in the final distribution – namely the deceased’s mother and brother.

WAS THE GRANT OBTAINED FRAUDULENTLY?

54. Having found that the petitioner was a wife – then the issue of fraudulent representation does not arise but yes she concealed material information as she failed to disclose to the court that she had received some money and used it.  My finding is that the petitioner violated Rule 26 of the Probate and Administration Rules which provide that:-

“26 Grants of Letters of Administration –

1) Letters of administration shall not be granted to any applicant without notice to every person entitled in the same degree or in priority to the applicant…”

55. Secondly whether one considers the proposed mode of distribution by the defendant or the one made by the court, the plaintiff’s input was not involved.  The petitioner failed to disclose to the court that she had received money belonging to the estate and disposed of the money without the involvement of other beneficiaries.

56. This not only constituted intermeddling with the deceased’s property contrary to Section 45 which provides that no person shall take possession or dispose of or otherwise dispose of or otherwise intermeddle with any free property of the deceased.

57. The petitioner in proposing the distribution did not factor in her earlier prior benefit from the funds she received on behalf of the deceased, and so the proposed distribution she made was not fair.  She did not adequately account for the money since GEORGE OKIRI never testified to confirm receipt.  It is on account of the foregoing that the grant confirmed on 08/05/2015 be and is hereby revoked.

58. SUSAN ADHIAMBO OTIENO, ANNE AOKO MBECHEand WALTER OTIENO shall jointly be issued with fresh grant for letters of administration.  They shall then file either jointly or separately fresh proposal for mode of distributing the estate taking into account that ANNE already received Kshs.381,215/20 cents which she has failed to adequately account for.

59. Each party shall bear its own costs.

Delivered and dated this 13th day of November, 2017 at Homa Bay.

H.A. OMONDI

JUDGE