In re Estate of Samwel Adhiambo Ogutu (Deceased) [2021] KEHC 6320 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT HOMA BAY

PROBATE & ADMINSTRATION NO.57B OF 2016

IN THE MATTER OF THE ESTATE OF:

SAMWEL ADHIAMBO OGUTU..............................................................DECEASED

BETWEEN

JARED OGUTU OTIENO.........................................................................APPLICANT

AND

MICHAEL OGUTU................................................................................RESPONDENT

RULING

1. Jared Ogutu Otieno the applicant herein moved the court by way of summons for revocation of grant dated 19th August, 2019  on the following grounds:

a) That the grant was obtained fraudulently by making of false statements and documents and by concealing from the court several things which were material to the case.

b) That the grant was obtained by means of several untrue allegations of facts essential in point of law to justify the grant and the said allegations were made deliberately and with full knowledge as to the true facts.

c) That the administrator is not capable of proceeding diligently with the administration of the said estate and had started alienating the said estate even before obtaining the grant and his interest is to sell the said land.

2. The application was opposed on the following grounds:

a) That the alleged erroneous information was given by the widow of the deceased who was then sickly.

b) That the respondent was the only step son of the deceased having been so adopted.

c) That the applicant is dishonest for he waited for Jenipher Atieno Obonyo to die so as to stake his false claim.

3. The initial petitioner herein was Jenipher Atieno Obonyo. She was only substituted with the respondent after her death. In her form P & A. 5, she described the respondent as a son.  Evidence was adduced to the effect that after Jenipher Atieno Obonyo and the deceased herein lost their three children, they adopted the respondent, a nephew of the deceased herein. They treated him as a son.

4. The applicant in his objection to the grant described himself as the son of Johnson Otieno Obonyo who was a brother to Samwel Adhiambo Ogutu, the deceased herein.

5. The applicant and the respondent are therefore cousins and nephews of the deceased herein. Were it not for the special treatment the respondent was accorded by the deceased herein and his widow, they would have ranked equally in respect of the estate of the deceased.  However, the respondent was given the treatment and recognized as a son by the deceased and his widow.

6. In my view, the applicant has no locus standi in the estate of the deceased.

7. Section 76 (b) of the Law of Succession Act provides as follows:

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—

(a) that the proceedings to obtain the grant were defective in substance;

(b) that the grant was obtained fraudulently by the making of a false statement or by the concealment from the court of something materialto the case;

(c) that the grant was obtained by means of an untrue allegation of a fact essential in point of law to justify the grant notwithstanding that theallegation was made in ignorance or inadvertently;

8. There are some erroneous information in the proceedings. Some are attributed to the widow of the deceased. These errors do not go to the core of this cause and are correctable. This cannot be the basis of revocation of the grant.

9. The application is dismissed with costs and the respondent given 30 days to render accounts in terms of section 83 (g) of the Law of Succession Act.

DELIVERED AND SIGNED AT HOMA BAY THIS 14TH DAY OF JUNE, 2021

KIARIE WAWERU KIARIE

JUDGE