In re Estate of Willis Ayieko Ogwangi (Deceased) [2022] KEHC 1601 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT BUSIA

SUCCESSION CAUSE NO.28 OF 2009

IN THE MATTER OF THE ESTATE OF WILLIS AYIEKO OGWANGI (DECEASED)

SIPORA ADIKINYI AYIEKO.....................................................................................APPLICANT

VERSUS

ATHANASIO OTIN AGOKO..................................................................................RESPONDENT

R U L I N G

[1]The grant of letters of administration intestate respecting the estate of Willis Ayieko Ogangi (deceased) was initially issued to Sipora Adikinyi Ayieko (protestor) on the 6th October 2009, but was revoked by an order of the court made on 29th September 2020 and fresh grant issued on the same date in the names of the protestor andAthanasio Otin Agoko, as the joint administrators.  The formal of document was actually issued on 12th October 2020, and on the 18th January 2021, the necessary summons for confirmation of grants dated 1st December 2020 was filed by both co-administrators/Applicants on the basis of the facts and grounds contained in their supporting affidavit deponed on 1st December 2000 by Athansio Otin Agoko (second applicant) which affidavit indicated the manner in which the estate property being parcel No.Bukhayo/Mundika/720 was to be shared among the three houses of the deceased.

[2]However, on 13th April 2021, the first applicant, Sipora Adikinyi Ayieko, filed an affidavit of protest to confirmation of grant on the basis of the proposal made by the second applicant on the distribution of the estate.  This was a clear indication that the summons for confirmation of grant was taken out prior to a consensus between the applicants and other beneficiaries on the mode of distribution of the estate property.

Be that as it may, inasmuch as it is proposed in the summons that the estate property be shared or distributed equally among the three houses of the deceased, then the summons stands to be allowed unless substantial and credible grounds are established and proved against the second applicant to compel the court exercise discretion in favour of the first applicant and decline to confirm the grant as proposed in the summons.

[3] Basically, the protest is grounded on the fact that the second applicant is not a true beneficiary of the estate of the deceased as he is a son of one Ahanasio Otin (deceased) who was a brother of the deceased and husband to Rahel Were (deceased), mother of the second applicant.  Nonetheless, the first applicant concedes that Rahel Were was inherited by the deceased, but implied that the deceased had only two wives including herself (first applicant) and the late Dorcas Asan, and that Rahel had other children including the second applicant before she was inherited by the deceased.  The first applicant stated that the actual father of the second applicant was one Abisai Agoko Otin and his grandfather was Athanasio Otin Ogwangi who hailed from Muhoroni Kisumu County.

[4]On his part, the second applicant indicated that Rahel was actually the first wife of the deceased after she was married by the deceased through inheritance following the loss of her husband, brother to the deceased.  This happened even before the first applicant and the late Dorcas Asan were married to the deceased as additional wives such that when they appeared at the scene they became part of the deceased’s entire family of three wives and their respective siblings.

All these facts were not substantially and credibly disputed by the first applicant in her protest.  It would therefore follow that whichever way one looks at the deceased’s lineage the second applicant would appear as a feature of the deceased’s family, hence a beneficiary of his estate.

[5] The first applicant’s present protest is therefore without merit and is hereby overruled with orders that the grant be confirmed as specified in paragraph 4 of the second applicant’s supporting affidavit dated 1st December 2020 with the exception of the third house of the deceased comprising of his surviving wife (first applicant) and three grandsons, Athanasio Otin, Orodo Ayieko and Wayodi Ayieko.  In that regard, the first applicant who appears to have been omitted shall also be included as among those entitled to a share of the third house inheritance.

Otherwise, the protest by the first applicant is dismissed with the parties bearing their own costs.

J.R. KARANJAH

J U D G E

[DATED & DELIVERED THIS 16TH DAY OF MARCH 2022]