In re Estate of Stephen Omullo Kisala alias Omullo Kisala (Deceased) [2022] KEHC 1492 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT KISUMU

SUCCESSION CAUSE NO. 750 OF 2014

IN THE MATTER OF THE ESTATE OFSTEPHEN OMULLO KISALAAliasOMULLO KISALA (DECEASED)

AND

IN THE MATTER OF AN APPLICATION FOR REVOCATION OF GRANT OF LETTERS OF ADMINISTRATION

BETWEEN

MOSES OTIENO KISALA.....................................................................OBJECTOR/APPLICANT

MICHAEL OUMA OMULLO........................................................PETITIONER/RESPONDENT

BENARD ALFRED AGUKO........................................................................INTERESTED PARTY

RULING

MOSES OTIENO KISALA, the Objector herein has asked the Court to revoke the Grant of Letters of Administration, which had been granted to the Petitioner, MICHAEL OUMA OMULLO.

1. The Objector also asked the Court to order the Registrar of Lands to strike out every entry that had been made on the register, in respect of L.R. NO. KISUMU/NYALENDA “B”/606, pursuant to the Grant issued to the Petitioner.

2. The primary reason advanced for seeking the revocation of the Grant was that the Objector and other beneficiaries were never consulted by the Petitioner, throughout the process of the Succession Cause herein.

3. As a consequence, the Objector and those other beneficiaries were apprehensive that they would be disinherited.

4. The apprehension of the Objector was heightened by the discovery of the fact that the Petitioner was in the process of transferring some portions of the estate, to persons who were strangers to the estate of the late STEPHEN OMULLO KISALAAliasSTEPHEN OMULLO KASALA.

5. By his supporting affidavit, the Objector revealed that the deceased was survived by two Widows, EVELYNE ATIENO OKOTHand ANNE ACHIENG KISALA.

6. The Petitioner was a son of Evelyne (“the first wife”), whilst the Objector was a son of Anne (“the second wife”).

7. The Objector deponed that his mother and his siblings, did not participate in the Succession Cause.  His said siblings are;

(a)Fredrick Omondi Kisala,

(b)Mophine Kisala, and

(c)Michelle Kisala.

8. It was the Objector’s case that the Petitioner had obtained orders for the Confirmation of the Grant; and that the suit property had already been sub-divided into 4 parcels.

9. The Objector had learnt that the Petitioner had already sold one parcel to one GEOFREY OTIENO OKOTH.

10. As the said Geofrey was not a beneficiary to the estate of the late Stephen Omullo Kisala, the Objector feared that the Petitioner might proceed to sell-off the remaining parcels of land.

11. Obviously, if the Petitioner were to sell-off the parcels of land which constitute the estate of the deceased, the Objector and the other beneficiaries would be disinherited.

12. I have noted that from inception, the Petitioner disclosed that the deceased had 2 wives, Evelyne and Ann.

13. I further note that by his supporting affidavit sworn on 2nd May 2017, the Petitioner provided the names of the 4 children of Ann.

14. Through the Summons for Confirmation of Grant dated 2nd May 2017, the Petitioner asked the Court to divide the estate equally between the 2 houses.

15. In my understanding, therefore, one-half of the estate is available to the 2nd house.

16. The Petitioner has deponed that he was ready to transfer the portion due to the 2nd house, to such person as the said 2nd house would choose.

17. The Objector has not raised any issue concerning the facts stated in the Petitioner’s affidavit, regarding the portions of land that are available to the 2nd house.  My understanding is that the Objector and his siblings, with their mother are now content, after being made aware about the parcels of land available to the 2nd house.

18. I find that the portion sold to Geoffrey O. Okoth was

0. 1 Hectares.  That portion of land was then sold to Benard Alfred Aguko, who is the Interested Party herein.

19. In my considered opinion, the sale to Benard Alfred Aguko does not need to be undone, as it does not prejudice the Objector and the entire 2nd house.  I so hold because the parcel of land that has been transmitted to the Interested Party can lawfully be deemed to have been curved out from the portion to which the 1st house was entitled.

20. In conclusion, although the Objector and his siblings were not consulted by the Petitioner, I find that the Petitioner had taken into account, the interests of the 2nd house.  Therefore, there would be no purpose to be served by the revocation of the Grant.

21. I reject the application dated 15th September 2020.

22. Each party will meet his own costs of the application.  I so order because although the application has been rejected, I am satisfied that the Objector had genuine concerns about the distribution of the assets of his late father.  It would be unfair to burden him with costs.

DATED, SIGNED AT DELIVERED AT KISUMU THIS 14TH DAY OF MARCH 2022

FRED A. OCHIENG

JUDGE