Ogutu v Ogutu & 4 others [2022] KEHC 3179 (KLR)

Ogutu v Ogutu & 4 others (Succession Cause 199 of 2020) [2022] KEHC 3179 (KLR) (12 May 2022) (Ruling)

Neutral citation: [2022] KEHC 3179 (KLR)

Republic of Kenya

In the High Court at Busia

Succession Cause 199 of 2020

JR Karanja, J

May 12, 2022

Between

John Aola Ogutu

Applicant

and

William Oluoch Ogutu

1st Objector

Yona Omoo Ogutu

2nd Objector

Samson Ogolla Ogutu

3rd Objector

Joseph Ochieng Ogutu

4th Objector

Joseph Akwira Ogutu

5th Objector

Ruling

(1)The deceased, Ogutu Ngondo Oori, passed away on the 6th July 2009 at the ripe age of ninety-nine (99) years leaving behind several wives and children. Thereafter, his son John Aola Ogutu (petitioner) applied for grant of letters of administration intestate respecting his estate which comprised of a single parcel of land described as Marachi/Bumala/1266. The grant was thus issued to the petitioner on November 29, 2010, and was confirmed on November 17, 2011, with the estate property being distributed equally to the three houses of the deceased.However, after a period of more than three (3) years, the summons for revocation of the grant dated 31st July 2014 was filed by five other apparent beneficiaries of the estate. These are the initial five objectors herein. An additional summons for revocation of grant dated October 24, 2014, was taken out by the sixth objector herein.

(2)The main ground for the two application was that the petitioner obtained the grant by fraud and concealment of material facts in that the consent of all the beneficiaries was not obtained and that some of the beneficiaries were excluded from the estate and its distribution.Apparently, the two applications for revocation of the grant were compromised on the June 12, 2019, when they were slated for hearing.The original grant dated November 29, 2010 was revoked and a fresh grant issued on that June 12, 2019, in favour of John Aola Ogutu and William Oluoch Ogutu who thereby became the joint administrators of the estate.

(3)On the August 19, 2021, after a period of approximately two (2) years, the two administrators (petitioners) filed the summons for confirmation of grant dated May 20, 2021, setting out the mode of distribution of the estate property among the beneficiaries. This was received by an affidavit of protest by Joseph Okwira Ogutu (6th objector) dated September 8, 2021, setting out his proposal on the mode of distribution.The protest was canvassed by way of written submissions which were duly filed by Balongo & Co. Advocates on behalf of the applicants and by Gabriel Fwaya Advocates, on behalf of the sixth (6th) objector/protestor.

(4)Having given due consideration to the protest on the basis of the supporting grounds and the court record, it became apparent to this court that the protest is anchored on the alleged existence of a fourth house and exclusion of the protestor from the distribution of the estate. These allegations have however, not been established by necessary evidence as the original grant and the new grant were issued with the knowledge that the identified beneficiaries belonged to one of the three houses of the deceased and not four houses of the deceased. This meant that the deceased had three rather than four wives. Therefore, the proposed inclusion of a fourth house by the protestor is improper and tantamount to including a stranger in the distribution of the estate.

(5)Interestingly, in his affidavit of protest, the protestor does not mention a fourth house. It is only in his so called evidence affidavit dated March 2, 2022 that he brings the idea of a fourth house and says that it is excluded from the distribution of the estate in terms of the petitioner’s summons for confirmation of grant. His failure to establish the existence of the alleged fourth house means that its exclusion from the distribution of the estate is justified. And, if the protestor is linked and/or tied to the estate on account of the non-existent fourth house, then his exclusion in the distribution thereof is also justified.It would therefore follow that the protest is devoid of merit and is hereby dismissed.Ultimately, the summons for confirmation of grant dated 20th May 2021, be and is hereby allowed. The necessary certificate of confirmation of grant do issue in terms thereof.Ordered accordingly.

J.R. KARANJAHJ U D G E

[DATED & DELIVERED THIS 12TH DAY OF MAY 2022]