Thomas Ngashe Mukanda v Saidi Obwonya Mukanda Alias Makokha [2015] KEHC 2262 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT BUSIA

SUCCESSION CAUSE NO. 121 OF 2007

IN THE MATTER OF THE ESTATE OF NYANGWESO MUKANDA OBIERO-------(DECEASED)

THOMAS NGASHE MUKANDA--------------------------------------------PETITIONER

VERSUS

SAIDI OBWONYA MUKANDAaliasMAKOKHA--PROTESTOR/BENEFICIARY

RULING

In the chamber summons dated 22nd August 2009, this Court is asked to make the following orders:-

That the grant made to THOMAS NGASHE MUKANDA on 30th October 2007 be and is hereby revoked and that a new grant be issued in the names of SAID OBWONYA MUKANDA.

That costs of this application be provided for.

By a Consent entered in court on 11th March 2015, the parties herein agreed that this matter be disposed of by way of viva voce evidence. The evidence that is germane and central to the issue at hand is not involved.  It is not in issue that the Objector is a blood brother of the Deceased, while the Petitioner is his half brother.  In accordance with Section  39 (1) of the Law of Succession Act, the Objector would have priority in applying for Letters of  Administration to the Estate of the Deceased.

That said, a person having first or equal priority can consent to a person of lesser priority to seek out letters. The Contention by the Petitioner is that by a consent (Form 38) dated 9th October 2007 and filed contemporaneously with the presentation of this petition, the Objector gave him consent to apply for the letters herein.  The Objector on the other hand denies that the signature on the document belongs to him and alleges that it is a forgery. In the course of hearing, the Objector told court that he does not know how to write and he executes documents by affixing his thumb print.

In the oral evidence before court, the Petitioner admitted that Said Obwonya Mukanda (the Objector) is his step brother and the only surviving blood brother to the Deceased. He insisted that the Objector consented to him presenting this petition after the family of the Deceased met and gave him the go ahead.

As I see it, the central issue is whether or not the Objector signed the consent of 9th October 2007. On this, the protagonist take different  position. He who asserts a fact must prove it (Section 107 of the Evidence Act). The person asserting that the signature against the name of the Objector on the Form 38 is a forgery is the Objector.  On this, he did do more than merely deny the signature. That evidence is not stronger than the evidence of the Petitioner that the Objector signed the document. Without more I cannot say that the Objector has on a balance of probabilities, proved his allegation that the controversial signature is a forgery.  In support of the authenticity of the document was the evidence of one Saad Mukanda Makokha whose signature appears on the consent after the controversial signature.  In his evidence, Saad admitted signing Form 38 at the house of the Deceased at Buhuyi.  The objector has not done enough to indignify the contents of the Form 38 dated 9th October 2007.

The result is that the application dated 23rd August 2009 fails. It 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

N/A…………………For the Petitioner

Onsongo h/b for Mwebi…For the Protestor/Beneficiary