In re Estate of Olweny Onyino (Deceased) [2018] KEHC 8131 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KISUMU

SUCCESSION CAUSE NO.209 OF 2015

IN THE MATTER OF THE ESTATE OF OLWENY ONYINO(DECEASED)

BETWEEN

PHILIP OCHIENG ONYANGO..................OBJECTOR/APPLICANT

AND

ABIGAEL ANYANGO MIDIGO.........PETITIONER/RESPONDENT

JUDGEMENT

Introduction

1. The deceased, OlwenyOnyinodied sometimes on 28th September, 1991. The deceased’s estate comprises of land parcel No. Kisumu/Kadero Got Nyabondo/1043. The petitioner applied for letters of administration which were issued in his favour on 5th June, 2014. The grant was confirmed in favor of the petitioner, Lucas OkothOkumu and Regan OtienoOkumuon1st September, 2016.

Application

2. The Notice of Motion before the court is dated5th October, 2016 and it is made under Section 76 of the Law of Succession Act (the Act) and Rule 44 of the Probate & Administration Rules (the Rules). The applicant seeks the orders among them that

1. That the Honourable Court be pleased to order and direct that the grant issued toABIGAEL ANYANGO MIDIGO on5th June, 2014and confirmed on1st September, 2016be revoked and/or annulled

2. That the petitioner be condemned to pay the costs of this application

3. By a ruling delivered on 24th March, 2017, the grant was annulled and by consentdated 30th March, 2017, Abigael Anyango Midigo, Ruth Akinyi and Philip Ochieng Onyango were appointed as joint administrators of deceased’s estate.

4. Thereafter, the parties failed to agree on the mode of distribution and this court directed that the issue be determined by way of viva voce evidence.

Objectors/Applicants’ Case

5. In his evidence, PHILIP OCHIENG ONYANGO stated that the deceased was his paternal grandmother. It was his evidence that the deceased begot 3 sons who included:

i. Lucas OnyangoOnyina ( Philip Ochieng Onyango’s father)

ii. Joseph Midigo (husband to ABIGAEL ANYANGO MIDIGO)

iii. William OkumuOnyina

It was his evidence that land parcel No. Kisumu/Kadero Got Nyabondo/1043ought to be shared equally between the families of the deceased’s 3 sons. In her evidence, Ruth Akinyi Okumu, the wife of William Okumu Onyina buttressed the objector’s evidence and urged the court to order that land parcel No. Kisumu/Kadero Got Nyabondo/1043be shared equally between the families of the deceased’s 3 sons.

Petitioner/Respondent’s Case

7. The Petitioner/Respondent, ABIGAEL ANYANGO MIDIGO told court that it was the deceased’s wish that land parcel No. Kisumu/Kadero Got Nyabondo/1043be shared out byJoseph Midigo (her husband) and William Okumu Onyina. It was her evidence that she occupies half of the land while William Okumu Onyina’s sons Lucas OkothOkumu and Regan OtienoOkumu occupy the other half. In cross-examination by Mr. Anyul for the objector, petitioner confirmed that the deceased gave land to each of his sons and that one such land being land parcel No. Kisumu/Kadero Got Nyabondo/1046 is in her namewhileland parcel No. Kisumu/Kadero Got Nyabondo/938is registered in her late husband’s name. She also conceded that she settled on the disputed land after the death of the deceased.

Analysis and Determination

8. The issue for determination is whether the objector/applicantis entitled to a share of his late grandmother’s estate. The evidence on record has disclosed that the deceased begot 3 sons who are deceased. They are:

i. Lucas Onyango Onyina (Philip Ochieng Onyango’s father)

ii. Joseph Midigo (husband to ABIGAEL ANYANGO MIDIGO)

iii. William Okumu Onyina

9. The deceased’s grandchildren, their spouses and children are therelativeswhoareinthenearestdegreeofconsanguinity and are under the provisions of Section 39 of the Law of Succession Act entitled to share the deceased’s estate in equal shares.

10. The petitioner’sevidence that the deceased wished that landparcel No. Kisumu/Kadero Got Nyabondo/1043devolve equally to Joseph Midigo (her husband) and William Okumu Onyinato the exclusion of her son Lucas Onyango Onyina (Philip Ochieng Onyango’s father)is not supported by any concrete evidence and it is rejected.

Decision

11. As a result, it is hereby ordered thatLand parcel No. Kisumu/Kadero Got Nyabondo/1046shall devolve to the following:

a. 1/3 share to Abigael Anyango Midigo

b. 1/3 share to Philip Ochieng Onyango

c. 1/3 share to Ruth Akinyi Okumu

d. The petitioner ishereby condemned to pay costs of this objection to theobjector

DATED AND DELIVERED THIS15th DAY OF February 2018

T. W. CHERERE

JUDGE

Read in open court in the presence of-

Court Assistant   - Felix and Carol

Petitioner/Respondent  - N/A

Applicant/Objector -N/A