Wao Aende, Jared Okoth Odera & Kungu Odera v Joshua Otieno Misadhi & James Omollo Ogoma [2017] KEHC 6945 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT HOMA BAY

SUCCESSION CAUSE NO.4 OF 2013

IN THE MATTER OF THE ESTATE OF:  MARGARET ONYANGO

MBADI & JAMES OMOLLO MBADI  .............................. DECEASED

BETWEEN

WAO AENDE ............................................................... 1ST OBJECTOR

JARED OKOTH ODERA ............................................ 2ND OBJECTOR

KUNGU ODERA ......................................................... 3RD OBJECTOR

VERSUS

JOSHUA OTIENO MISADHI ........... 1ST PETITIONER/RESPONDENT

JAMES OMOLLO OGOMA ............ 3RD PETITIONER/RESPONDENT

RULING

1. MARGARET ONYANGO MBADI and JAMES OMOLLO MBADI died on 13th November 2007 and 15th June 1994 respectively.  Their daughter namely NEREAH AJWANG, PENINAH AWUOR and ROSA OYUGI ODIPO were issued with grant of letters of administration on 6th November 2014.  Thereafter a certificate of grant dated 12th February 2016 was issued reflecting the asset for distribution as Land Parcel NO. KANYADA/K/KATUMA’A’/613 and KANYADA/K/KATUMA’A’/1403 which were left out in the certificate.  The administrators now pray that the grant be rectified so as to include the said parcels.

2. It is also indicated that one of the beneficiaries namely NEREAH AJWANG ACHAR died on 25th October 2015 after the grant had been issued but not confirmed, leaving the surviving two sisters namely PENINA AWUOR and ROSA OYUGI ODIPO to whom the estate should be apportioned as follows:-

a) PENINA AWUOR to own Land Parcel No. KANYADA/K/KATUMA’A’/613 whole.

b) ROSA OYUGI ODIPO to own parcel NO. KANYADA/K/KATUMA’A’/522 while and KANYADA/K/KATUMA’A’/1403 whole.

3. I have perused the record and noted that a search document dated 2/2/2012 shows parcel NO. KANYADA/K/KATUMA ‘A’/1403 was registered in the name of MARGARET ONYANGO ODIPO.  I require a current search to confirm the status of the property.

4. I have failed to find any document in the record concerning ownership of parcel NO. KANYADA/K/KATUMA’A’/613.

5. The applicants failed to attach current search documents in relation to the properties and I am unable to verify the current registered owners of NO.1403 and whether 613 was ever owned by either of the deceased.

6. It is also said that NEREAH AJWANG ACHAR is now deceased but there is no document annexed to prove that.  I would expect copy of a death certificate – none was presented.  In any event the situation does not lie in dropping off NEREAH’s interest, but in nominating her offspring to benefit from her share.

7. It is on account of these loop-holes that I decline to grant the prayers for rectification. The application is thus dismissed.

Delivered and dated this 24th day of March, 2017 at Homa Bay

H. A. OMONDI

JUDGE