Okello Makhono Ososo v Simon Oduory Okeya [2015] KEHC 2369 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT BUSIA

SUCCESSION CAUSE NO. 298 OF 2013

IN THE MATTER OF THE ESTATE OF THE LATE SEBASTIAN MAKHONO OSOSO----DECEASED

AND

OKELLO MAKHONO OSOSO-------------------------------------ADMINISTRATOR

VERSUS

SIMON ODUORY OKEYA-----------------------------------APPLICANT/OBJECTOR

RULING

This decision is an answer to Objector’s summons dated 2nd October 2014 seeking the following substantive prayers:-

That: A grant of letters of administration intestate issued to OKELLO MAKHONO OSOSO on 5TH July 2014 be revoked or annulled, and/or in the alternative the Applicant be included in the list of the beneficiaries (form P& A 5) as a liability/purchaser.

Costs of this application to be in the cause.

The Objector contends that on 19th February 1994, he purchased 0. 2 hectares of Bunyala/Bulemia/40 from Josephine Ada Makhono who is the Widow to the Deceased.  This court has been shown a Sale Agreement in that respect.  The Objector asks this court to rule that the entire family of the Deceased consented to the sale and that in particular two sons of the widow, namely Charles Muyonga and Michael Juma Makhono witnessed the  execution of the sale agreement.

The complaint by the Objector is the Petitioner has now refused to recognize him as a Beneficiary notwithstanding that his purchasers interest was included in the Chief’s letter of 24th July 2013 introducing the family of the Deceased to this Probate and Administration Court.

The response by the Petitioner is that the issue of the sale is one  between the Objector and the widow and the house of the Petitioner was not involved.  Secondly the Petitioner is in doubt as to the extent of land sold to the Objector arguing that at the time of sale no survey had been carried out on the land.

The stance of the Petitioner is that the Objector is not a beneficiary to the Estate of the Deceased.  It may in fact be true that the Objector did not have any claim against the Deceased because the purported purchase took place on 19th February 1994, a date after the Deceased had died, the Deceased having died on 5th April 1989. A claim by a Purchaser can only be ventilated elsewhere and not in a Probate and Administration Cause. In the submission filed by the Objector’s Lawyer, it is argued on her behalf that she has occupied the land since the year 1994 and the Deceased family is barred by Section 7 of the Limitations of Action Act Cap 22 from reclaiming that land. That clearly is an argument that can be made before an Environment  and Land Court. That is the court to which the Objector must turn to.

The Summons for Revocation dated 2nd October 2014 is therefore without merit and is hereby dismissed with costs.

As explained to the Parties, this Decision could only be delivered on Notice to them as I was proceeding for my Annual Leave and thereafter for August vacation.  That explains the apparent delay.

Dated, Signed and Delivered at Busia this 1st  day of October

2015

F. TUIYOTT

J U D G E

In the presence of:-

Oile …………………Court Clerk

Juma……………………………… For the Administrator

Luchivya absent…………………………… For the Objector