In re Estate of Stephen Ouma Ojiambo (Deceased) [2019] KEHC 1847 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT BUSIA

PROBATE & ADMINSTRATION NO. 224 OF 2015

IN THE ESTATE OF:STEPHEN OUMA OJIAMBO......................DECEASED

BETWEEN

CLEMENTINA ANYANGO WERE..........APPLICANT

AND

ALOYS WERE AJARI.............................RESPONDENT

RULING

1.  After this matter was confirmed on 15th February 2017, Clementina Anyango Ojiambo, the applicant herein filed an application for revocation of the grant dated 7th June 2017. It is premised on the following grounds:

a)  That the grant was obtained fraudulently by concealment from court material facts.

b)  That the proceedings to obtain the grant were defective in substance.

2.  The application was opposed on the following grounds:

a)  That parcel of land SAMIA/LUANDA-MUDOMA/625 was assigned to the mother of the respondent.

b)  That courts have adjudicated over this matter and the verdicts given have not been overturned.

3.   I have perused the affidavits of both parties, the attached documents and the record. The following facts have emerged:

a)  That the deceased herein was polygamous.

b)  That he was survived by several heirs other than the respondent.

The respondent in form P. & A. 5 indicated that he was the only person who survived the deceased. This was concealment of a material fact. This offends section 76 (b) of the Law of Succession Act which provides:

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—

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

The issues the respondent was raising about the other beneficiaries having benefited ought to have been addressed at the distribution stage.

4.   I have considered that there are decisions herein pertaining to the property of the deceased. These decisions can only be appreciated at the appropriate time.

5.  The application is allowed and the grant revoked. The applicant and the respondent herein are appointed co-administrators.

DELIVERED and SIGNED at BUSIA this 3rd  day of December, 2019

KIARIE WAWERUKIARIE

JUDGE