In re Estate of Obuodho Obaje alias Obaje Obuodho (Deceased) [2024] KEHC 13866 (KLR)

In re Estate of Obuodho Obaje alias Obaje Obuodho (Deceased) (Miscellaneous Succession Cause 245 of 2024) [2024] KEHC 13866 (KLR) (8 November 2024) (Ruling)

Neutral citation: [2024] KEHC 13866 (KLR)

Republic of Kenya

In the High Court at Kisumu

Miscellaneous Succession Cause 245 of 2024

RE Aburili, J

November 8, 2024

Ruling

1. From the conflicting information supplied to the Chief Magistrate’s Court on the relationship between the deceased and the Petitioner, this Court is unable to process the transfer of Kisumu CM’s Court Succession Cause No. E608 of 2023 to the court with geographical jurisdiction.

2. The Chief, South Central Seme Location in his letter of 21st May 2023 claimed that the Petitioner Julius Apollo Aloo Osala was the only surviving kin of the deceased Oboudho Obaje who died unmarried but left the Petitioner as his grandparent.

3. The Chief Magistrate’s court observed on 1st December 2023 that it was impossible for a deceased who died aged 72 years to leave behind a 53-year-old grandparent. He directed the Petitioner to avail correct information.

4. Vide a letter dated 15th April 2024, the same Chief now wrote a letter the second time stating that the Petitioner was a grandchild. More persons are named as grandchildren. If the deceased died unmarried, without any child, how did he leave behind grandchildren? Very interesting indeed.

5. The beneficiaries of the estate of the late Obuodho Obaji if any, have not been positively and properly identified as required and as of necessity, this court exists to protect estates of deceased persons and to distribute such estates in accordance with the law. Where an intestate dies leaving no spouse or children, Section 39 of the Law of Succession Act makes provision as to whom the estate is to devolve, to the other surviving relatives in the order of priority.

6. All Chiefs and their Assistants are expected to know these provisions as to whom the estate of a deceased person devolves where such deceased leaves no surviving spouse or children. These are, in the priority order, father, mother, brothers and sisters, nephews and nieces, half-brothers and half-sisters and any child or children of the half brothers and sisters.

7. My observation is that the area Chief is second guessing and not giving accurate information on the relationship between the deceased and the petitioner.

8. Even where no known relatives survive, the law provides for such estate to escheat to the State. It cannot be intermeddled by non-relatives of the deceased. There should be a family tree drawn accurately stating how the petitioner herein or any other person is related to the deceased Obuodho Obaje alias Obaje Obuodho.

9. Accordingly, I direct the file to be returned to the Chief Magistrate’s court at Kisumu for further directions.

10. I further direct the Chief, Seme South Central Location and the Petitioner to appear before the Chief Magistrate’s Court at Kisumu on the date to be given by the Presiding Court to explain to the satisfaction of the court the existing relationship between the Petitioner herein Julius Apollo Aloo Osala and the deceased Obuodho Obaje alias Obaje Obuodho.

11. Accordingly, I decline to transfer this file to the court with geographical jurisdiction until the matters raised hereinabove are settled.

12. This Ruling to be typed, uploaded and served upon the Chief Magistrate’s Court, Kisumu, for necessary action.

13. This file is closed.

DATED, SIGNED AND DELIVERED AT KISUMU THIS 8TH DAY OF NOVEMBER, 2024R. E. ABURILIJUDGE