Kepher Olwa Odhiambo v Ezra Ombura Oyoo & Enos Odhiambo Oyoo [2016] KEHC 1377 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT HOMA BAY

SUCCESSION CAUSE NO.903 OF 2015

IN THE MATTER OF THE ESTATE OF:

SIMON OYOO ACHIENG .......................................................... DECEASED

AND

KEPHER OLWA ODHIAMBO ........................... APPLICANT/OBJECTOR

VERSUS

EZRA OMBURA OYOO ....................... 1ST RESPONDENT/PETITIONER

ENOS ODHIAMBO OYOO .................. 1ST RESPONDENT/PETITIONER

RULING

1. The Applicant/Objector (KEPHER OLWA ODHIAMBO) has sought for revocation and/or annulment of the grant of letters of administration issued to EZRA OMBURA OYOO and ENOS ODHIAMBO OYOO (Respondents) and which were confirmed on 12th January 2004 in Oyugis RM’s Court Succession Cause No.1 of 2001.  He also prays for the annulment of the registration of Land Parcel No. CENTRAL KASIPUL/KACHIENG/452into the names of the Respondents, and an order of rectification be issued rectifying the register to reflect the name of the deceased SIMON OYOO ACHIENG as the registered owner of the said parcel pending proper succession of the deceased’s estate.

2. SIMON OYOO ACHIENG died intestate on 27th July 1976 whereupon his two sons EZRA OMBURA OYOO and ENOS ODHIAMBO OYOO (Respondents) obtained a letter from the Chief of Kamagak East Location dated 3rd January 2001 indicating that he was survived by the two respondents and one wife TURUFENA AKECH OYOOand SHEM AYODO OYOO had sanctioned them to be appointed administrators of the estate.  That is how they ended up being the administrators of the estate and subsequently distributing the estate to themselves.

3. It turns out, as claimed by the objector/applicant that infact the deceased was survived by six children – who included the respondents, their mother TURUFENA AKECH, SHEM AYODO OYOO, OMITA OYOO, JOHN OLWA OYOO and SAMSON OJUNGA OYOO.

4. The applicant contends that this material information was concealed from the court and so the grant was fraudulently obtained.

5. It is further argued that in any event, at the time, the magistrate’s court at Oyugis was not seized of jurisdiction to preside over succession cases as- (a) the estimated value of the asset was Kshs.150,000/= and (b) the matters emanating from Oyugis were to be presented at Kisii High Court then.

6. It is the respondents’ deposition that in confirming the grant in favour of the respondents, the other beneficiaries were all disinherited.

7. The applicant is a grandson to the deceased and explains that his father JOHN OLWA OYOO (now deceased) was a son of the late SIMON OYOO ACHIENG as confirmed by a letter from the area chief dated 18th September 2012 signed by the Assistant Chief of Kamagak East.

8. The Chief explained in his letter that SIMON OYOO ACHIENG had three wives, and in fact SUSAN ATIENO OYOO was the third wife, and mother of JOHN OLWA OYOO.  The Respondents were served with the application and did acknowledge same but failed to file any response or attend the hearing.  There is very little to belabour – from the documents which were presented to the court, and now the letter from the current chief, it is apparent that the respondents concealed material information from the court and locked out other members of the family.

9. Secondly it is indeed true that in 2004, the magistrate’s court had limited jurisdiction in dealing with succession cases, and could only handle matters where the High court was not sitting and the net value of the estate had not exceeded Kshs.100,000/=.  A perusal at the affidavit in support of the petition for letters of administration intestate (FORM P&A 5) shows that the estate’s value was indicated as Kshs.150,000/= which was beyond the court’s jurisdiction.  In this regard I refer to Section

(1) of the Law of Succession Act as it existed then to the effect that:-

“48(1)... a resident magistrate shall have jurisdiction to entertain any application other than an application under Section 76 and to determine any dispute under this Act and pronounce such decrees and make such orders therein as may be expedient in respect of any estate the gross value of which does not exceed one hundred thousand shillings.”

10. I need not say more, the application is merited and is allowed.  The grant issued and confirmed in favour of EZRA OMBURA OYOO and ENOS ODHIAMBO OYOO be and is hereby revoked.

2) The registration of the parcel No. CENTRAL KASIPUL/KACHIENG/452 is revoked.

3) The Registrar of Lands in Homa Bay is directed to rectify the register to reflect the name of the original owner SIMON OYOO ACHIENG, pending proper succession of the deceased’s estate.

Delivered and dated this3rdday of November,2016 at Homa Bay.

H.A. OMONDI

JUDGE