Odhiambo v Opondo; Mulamba & another (Interested Parties) [2022] KEHC 2956 (KLR)

Odhiambo v Opondo; Mulamba & another (Interested Party) (Succession Cause 295 of 2012) [2022] KEHC 2956 (KLR) (16 June 2022) (Ruling)

Neutral citation: [2022] KEHC 2956 (KLR)

Republic of Kenya

In the High Court at Busia

Succession Cause 295 of 2012

JR Karanja, J

June 16, 2022

N THE MATTER OF THE ESTATE OF OMONDI AJWALA alias OMONDI OJUALA (DECEASED)

Between

Isaiah Omondi Odhiambo

Petitioner

and

George Owino Opondo

Petitioner

and

Jothan Godfrey Mulamba

Interested Party

Milton Humphrey A Akello

Interested Party

Ruling

1. The application vide the summons for confirmation of grant dated July 12, 2021, is for confirmation of the grant issued to Jotham Godfrey Mulamba and Milton Humphrey Okello on the April 22, 2021 on the basis of the mode of distribution specified in paragraph 4 of the supporting affidavit.

2. However, George Owino Opondo, filed an affidavit of protest dated October 28, 2021, in which he implies that the applicants not being heirs and/or dependants of the deceased in any manner are not beneficiaries of the estate and ought not have any share in the distribution of the estate which should therefore be distributed wholly to himself as a brother of the deceased.

3. The issue for determination is whether the protest is sustainable for purposes of invalidating and/or overruling the mode of distribution of the estate as proposed by the applicants. The validity of the grant is not questioned or substantially questioned and does not therefore arise as an issue of determination. It would therefore follow that the allegations by the protestor that the applicants are not heirs of the estate rests on “quick sand”. In any event when this court ordered that the fresh grants be issued to the two applicants, it did so with the knowledge that the two applicants were co-opted into this matter in place of the late Anjeline Akinyi as heirs and beneficiaries of the estate of the deceased in their capacity as nephews of the deceased. The protestor has not availed any cogent and credible evidence to disprove the fact and cannot now oppose the distribution of the estate in the manner suggested by the applicants. He has also not provided satisfactory evidence to show and prove that he is actually a beneficiary of the estate in priority to the applicants or even to their exclusion for him to demand the entire portion of the estate property as his inheritance.

4. In the circumstances, the present protest is wanting on merit and clearly unsustainable. It is therefore dismissed but the summons for confirmation of grant may not be confirmed in the manner proposed by the applicants inasmuch as part of the estate is set to be distributed to Anjeline Anyango Akinyi, yet it is indicated herein that she is since deceased.

5. The summons must therefore and is hereby struck out and dismissed for being premature with the applicants having the liberty to take out fresh summons for confirmation based on a mode of distribution which shall cater for the interest of Anjeline Anyango Akinyi or those who survive her. In that regard, fresh summons be taken out in the next four (4) months from this date hereof.

6. The costs of the application and protest be shared by the parties respectively.

Ordered accordingly.J.R. KARANJAHJ U D G EDATED & DELIVERED THIS 16TH DAY OF JUNE 2022