Odiemo v Ouma [2022] KEHC 12698 (KLR)

Odiemo v Ouma (Probate & Administration 49 of 2003) [2022] KEHC 12698 (KLR) (15 June 2022) (Ruling)

Neutral citation: [2022] KEHC 12698 (KLR)

Republic of Kenya

In the High Court at Busia

Probate & Administration 49 of 2003

JR Karanja, J

June 15, 2022

Between

Esther Aoko Odiemo

Petitioner

and

Moses Juma Ouma

Objector

Ruling

1. In this matter, the record reveals that way back in the year 2003, or thereabout a grant of letters of administration was issued to the petitioner, Esther Aoko Odiemo to administer the estate of the deceased, Beneah Odiem. The grant was confirmed much later on the 4th November 2008 and a certificate of confirmation issued accordingly.However, in the year 2015 Moses Juma Ouma, filed an application for revocation of the grant on the basis that in a previous land dispute involving his mother and the deceased there was an order of the court giving his mother and himself three acres of the estate property described as Bukhayo/Mundika/600 and the property described as Bukhayo/Matayos/42. He was therefore claiming an interest in the estate property or part thereof.

2. The application was heard and allowed by the court in a ruling made on 3rd June 2020 to the effect that the grant which was confirmed on 4th November 2008 be revoked and that both the applicant Moses Juma Ouma and the respondent/petitioner, Esther Aoko Adeimo be co-administrators in the administration of the estate. The petitioner was given a period of thirty (30) days to file a proposal for distribution of the estate which would factor in the court order issued in Busia SRM court No.26 of 2002 and in default, the applicant was at liberty to file his proposal after the expiry of the thirty days.In essence, the court directed and/or ordered that a fresh grant be issued in the names of both the petitioner and applicant and be confirmed at the very least within thirty (30) days from the date of the ruling which could be extended depending on the prevailing circumstances.

3. Apparently, the fresh amended grant was issued on 21st October 2020 and on the 15th March 2021, the application for confirmation of the grant dated 1st December 2020, was filed by the applicant thereby implying that the petitioner failed to have the grant confirmed within the window of thirty days of the issuance.In response, the applicant on the 6th July 2021 filed an affidavit of protest dated 25th June 2021 and again on the 29th September 2021 filed a further affidavit of protest dated the same day.These are the protests for which this ruling is all about after they were canvassed by way of written submissions.Both parties filed their respective submissions through their respective advocates.

4. This court having considered the protests on the basis of the rival submissions and the history of the matter formed the opinion that the basic issue arising for determination is whether or not the summons for confirmation of the grant dated 1st December 2020 ought to be allowed on the basis of the mode of distribution proposed by the applicant in terms of paragraph 5 of the supporting affidavit.The petitioners protest is essentially a challenge to the applicant’s proposal mounted on grounds that the estate property No.Bukhayo/Mundika/600 was wholly distributed to the rightful beneficiaries and therefore no longer available for distribution and that the property No.Bukhayo/Matayos/42 being ancestral land was distributed equally between the applicant and the children of the deceased such that the applicant is entitled to only one acre of the property.

5. Given that the court in its ruling dated 3rd June 2020 directed and indeed ordered that the petitioner do file a proposal for distribution factoring in the order made by the court in Busia SRM Court case No.26 of 2002 and that the petitioner failed to comply thereby prompting the applicant to instead apply the petitioner demonstrated bad faith petitioner protest against the applicant’s proposal which clearly resonates well with the order of the court in the aforementioned Busia SRM case No.26 of 2002, which related to the estate property. The protestor cannot therefore be heard to say that the estate property Bukhayo/Mundika/600 is no longer available for distribution as it has already been distributed to the rightful beneficiaries. Any previous distribution was revoked and nullified by the court by dint of its ruling of the 3rd June 2020.

6. With regard to Bukhayo/Matayos/42, the protestor cannot also be heard to say that it was distributed equally between the applicant and the children of the deceased when it was clear that the court in SRM No.26 of 2002 ordered that the entire portion measuring two (2) acres be allocated to the applicant’s mother Priscilla Taka Kenga and the applicant. This was a clear implication that the property did not belong to the deceased and did not therefore form part of the deceased’s estate for purposes of distribution. So, if part thereof was distributed to the petitioner or her children in a previous distribution, then the distribution was unlawful. In any event, that distribution was nullified in the ruling of this court dated 3rd June 2020.

7. For all the foregoing reasons, it is the court’s finding that the protest by the petitioner is wholly devoid of merit and is hereby overruled and dismissed to the extent that the application by the applicant for confirmation of the grant is allowed in terms of the mode of distribution specified in paragraph 5 of the supporting affidavit dated `1st December 2020. The necessary certificate of confirmation of grant do issue accordingly.

J.R. KARANJAHJ U D G EDATED & SIGNED THIS 15TH DAY OF JUNE 2022