Summons for confirmation dated 24th February 2020 was filed on 2nd March 2020 to confirm grant made to Odongo Mark Okeyo, Billy Okeyo and Moses Odongo Okeyo on 4th February 2019.
The Administrators proposed with the consent of the beneficiaries that the estate be distributed as follows:-
a. A third of the estate to be shared equally among Odongo Mark, Fredrick Okeyo, and Dancun Owuor Okeyo.
b. A third of the estate to be shared equally among Christabel Auma Okeyo, John Miller Okeyo, Moses Odongo Okeyo, Steve Omondi Okeyo and Andy Joseph Odongo.
c. Athird of the estate to be shared equally amongst Mary Adhiambo Okeyo, David Onyango Okeyo, Billy Okeyo, Bob Collins Okeyo and Jeremiah Ochieng Okeyo.
d. It was also proposed that the estate’ duties to be paid from the estate funds at Kenya Commercial Bank Migori branch.
The summons was premised on the grounds on its face and the supporting affidavit sworn by the Administrators on 24th February 2020 and duly signed consent for the mode of distribution dated 24th February 2020 and
signed by:-
i. Christabel Auma Okeyo
ii. Mary Adhiambo Okeyo
iii. Moses Odongo Okeyo
iv. John Miller Okeyo
v. Mark Odongo Okeyo
vi. Fredrick Otieno Okeyo
vii. Ben Okoth Okeyo
viii. David Onyango Okeyo
ix. Billy Okeyo
x. Dancun Owuor Okeyo
xi. Andy Joseph Odongo
xii. Steve Omondi Okeyo
xiii. Bob Collins Okeyo
xiv. Jeremiah Ochieng Okeyo
From the Petition for grant of Letters of Administration the assets listed as making part of the estate property are:-
i. Suna West/Wasweta II/ 409 which asat 23rd May 2018 had a caution in favour of Odongo Mark ……measuring 23.8 HA
ii. Suna East/ Wasweta I/ 6709 which also had caution in favour of Odongo Mark as at the time Certificate of search was being issued with subdivision No 2964 measuring 0.13 HA
iii. Suna East/ WaswetaI/1583 against which Mark Odongo Okeyo ha lodged a caution with subdivision No. 390 measuring 14.3 HA
iv. Suna East/ Kakrao/2402 against which Mark Odongo Okeyo had lodged a caution with subdivision No. 322 measuring 36.9 HA.
v. Suna East/Area B Kwa/1141 against which Mark Odongo lodged caution with subdivision No. 592 measuring 11.3HA
vi. Suna East/ Wasweta I/10961 which is in the name of Nyakebati Johnes Chacha with subdivision No. 11032 measuring 7.47 HA
vii. Kanyamkago/KawereII/958 which had a caution lodged in favour of Thabiti Finance Co. Ltd with subdivision N0.96 measuring 16.1HA
viii. Suna West/ Wasweta/336 in the name of Andrea Okeyo measuring 8.4 HA
Upon service of the summons for confirmation Christabel Auma Okeyo and John Miller Okeyo through the firm of M/S Okongo Wandago and Co. Advocates filed an affidavit of protest sworn by John Miller Okeyo on 2nd June 2020 for reasons that some beneficiaries to the estate including daughters had not been included in the list of beneficiaries and that some assets had also not been disclosed and/ or included in the list of assets to the estate.
Steve Omondi Okeyo also filed affidavit of protest sworn on 24th August 2020 through the firm of M/S P.R. Ojala and Co. Advocates listing 21 beneficiaries including two widows and seven daughters. The 1st Protestor averred that he was not consulted on the mode of distribution as evidenced in the consent dated 24th February 2020. He also averred that the Petitioners had not disclosed the exact amounts in the deceased’ bank accounts and shares in companies and all parcels of land had also not been disclosed.
He said that he was an only son in his mothers’ house and he should not be combined with step siblings from another house. He proposed that the assets be valued and accounts be taken before distribution is done.
In a letter dated 29th January 2020 Thabiti Finance Company Limited (in liquidation) wrote to Gilbert Oginga Okeyo informing him that LR No. Kanyamkago/KawereII/958 secured a loan facility that was outstanding at Kshs 14,543,138.40 which Gilbert Oginga Okeyo had failed to clear despite the many correspondences. The Finance Company gave a notice of sale if the amount is not cleared in 40 days.
Odongo Mark Okeyo and Billy Okeyo in response to the protest swore an affidavit on 28th August 2020 through the firm of M/S Otieno Okeyo and Co Advocates and their affidavit can be accessed through the CTS.
Samuel Okombo Ondiegi cousin to the deceased also swore an undated affidavit in reply to the protest.
Similarly, Evans Okeyo, Lukio Otieno Nyachiro, Julius Okombo Onyalo, Eunice Adhiambo Ndegwa, Mary Awuor Okeyo and Charity Achieng Okeyo also swore affidavits in reply to the protest.
Before hearing of the summons and protest application dated 12th March 2021 was filed under certificate of urgency by the Administrators seeking to restrain Hellen Odira Okeyo from trespassing, wasting, building on, interfering with or dealing with in any way LR No. Suna East/Wasweta I/ 16961. Reponses to the said application were filed and directions were taken for hearing by way of submissions amidst the court also directing parties to try an out of court settlement but it did not materialize and the application was abandoned for hearing of the summons for confirmation and protest.
The 1st Protestor Steven Omondi Okeyo testified that Okeyo Andrea Odongo the deceased herein died in 2012. He said he was residing at Kadianga in Suna East, Suna Central the Ward. He said that the deceased was his father and he had 5 wives with his mother being the last wife. She was Monica Atieno Okeyo. She died 1994 when he was young. She was buried near Banana in Kimaiga Migori. He said he was the only child to his mother. He said he was the 16th son to the deceased and the youngest of his brothers. He said he came to court because he did not agree with mode of distribution of Okeyo’s property. He said he filed affidavit dated 24/8/2020 and later he filed a list of documents. He said he know Mark Okeyo who was the second born. He said the Administrators are Billy Okeyo, Moses and Mark Okeyo. They appointed themselves. They filed application for distribution. He said he did not agree with the schedule. There are plots that have not been included. Plot No. 37A Suna / Marindi. Seme / 1583, Wasweta 1 / Suna East 40B Suna. He said that he did not know why they did not include them. They appointed themselves and said they were looking for the property of Okeyo and then we go to court. The Administrators were appointed at a meeting.
A letter came from Nairobi from Fred Okeyo for people to sign. He said he needed the letter which indicated that they had agreed to come to court.
When he asked John Miller why the other properties were not included, he said that he should have asked them why they left out some of the plots. They also left out Bank Accounts. He said he did not know how much was in the Bank Accounts. That it is the Administrators who know. They said they were using money in account for Succession but did not disclose how much it was. The girls had not been listed as beneficiaries and he mentioned all the girls that had been left out. He said that he did not agree with the letter proposing distribution.
He said he knew Christabel Auma Okeyo, John Miller Okeyo, Moses Odongo Okeyo and Andy Joseph Odongo. He said that Christabel was not his mother and he did not know why he was placed in Christabel’s house. When his mother died, they all wanted to pull down his mother’s house. He said he was in the meeting. And he refused and the house stands to date. He said he does not accept to inherit 1/3 from Christabel’s house. He said he did not sign that proposal. When his father died, he had talked to him and he e never left him in Christabel’s house. He said his father gave him land. He said the land that his father gave him is included in the schedule but there is no proposal that he inherits that land. He said he does not know what 1/3 means.
They estimated the estate at 9 million. There were no liabilities. They did not say what liabilities are and he would like to know. He said the deceased gave him Kakrao/ 2402. He also said he would like a share of money in the bank. He also requested to have his exhibits admitted EX 1-5
In cross examination by Mr. Odero Advocate the witness said that they have never sat as family and agreed on the deceased’s property. He could not confirm that all that is returned in this case is his whole property. We do not know how much money was in the bank.
He said his father had an account in KCB, National Bank and Co-operative Bank. He said that he knew there is money in KCB but he did not know the amount. He said the account was blocked when he tried to find out how much money was there.
The 1st Protestor also said that there was rent that was being collected from Plot No.37A and 403 Migori as they are business premises that are let out. He said he did not know the occupants of the premises. He said it is Mark who knows who collects rent from the said premises but tenants have been in occupation since his father died in 2012 and they are still there. He said the plot was given to Christabel Auma who is a wife to his father. He said that John Miller Okeyo was his brother.
In cross examination he said that the 4th Protestor was his sister from Christabel Auma’s house. He said that Christabel Auma was the 3rd wife of Andrea Okeyo and she was alive. He said that form P & A 5 did not have Hellen Odira as beneficiaries to the estate of Okeyo and he did not know when she ceased to be Okeyo’s child. He said that there are many other sisters who are not included in the list as Okeyo had sons and daughters. Land on which Hellen was occupying Suna East Wasweta 1/16165 was not included in the schedule of properties in P & A 5. He said that his sister lives there. There are sons in the home and daughters. Hellen lives in his fathers’ land. Chief’s letter dated 8/5/2019. Letter by Chief Suna Central Location. This land was not listed in deceased’s property. There are no daughters listed as heirs in the letter by the Chief.
In cross examination by Mr. Jura Advocate the 1st Protestor said that he is a tailor. He said the deceased had 5 wives. He said his mother was living with deceased at Kadika and she died in 1994 when he was small. He said his mother’s house is there although he did not have a picture of the mother’s house. He said he did not have his mothers’ birth certificate and he had have never gone for birth certificate. He said he was 36 years old but he did not know why his father was buried away from Kadika.
He said he was about 3 years when his mother died in 1914 and he was left in the home of Okeyo. He said he used to be taken to different houses.
When his mother died he used to live in Christabel’s house and he was later removed and taken to Okeyo’s mother’s house.
In Christabel’s house, he said he was mistreated and did not learn well and that is why he feels uncomfortable. He said he would have to stand alone. Before these proceedings a letter came from Nairobi. That he did not sign the second but signed the 1st letter after he read it. PW1 said that before the petition was brought to court. They sat down but they did not agree. He said they went to KCB and were told they should go with a letter from court. That in 2018 he was in court but he had never asked court that he should be given an order to ascertain how much is in the bank.
PW1 also said that there are some plots that are rented and he did not know who collects the rents. That he had never gone to see who does business in those plots. He opposed the mode of distribution but did not write his mode of distribution. He said the deceased’s daughters were left out but they did not grant him leave to act for them. They know about the cause. Mary Ojodeh was left out; Eunice Adhiambo Ndegwa, Mary Anne Ojode. Clarity Otieno Okeyo are his sisters who are not on the list. He said that he did not know if they filed affidavit saying they have no objection to distribution. The other daughters have not filed any objection to confirmation.
Nobody has built in the piece of land. We only cultivate. We do live at home. PW1 said he has land that he cultivates. He said he was given the land by the deceased. He said that others cultivate land given to the deceased. That others don’t cultivate but have fenced. He said he would like to be given the land in Kakrao and he would like the others to be given their pieces of land if the deceased gave the land to them.
PW1 said he knew Lukio Otieno Nyachiro as a surveyor and a first cousin to his father. He said Lukio measured the land but stopped measuring when their father died. He was measuring the land as they had sat and agreed on distribution. After death of deceased, they interfered with distribution. He said he would like this case to end but he should get his right.
He said he had no problem with the administrators continuing to administer provided all the properties are included in the distribution and those left out come and say they have no interest in the properties.
Between Mark Okeyo and Miller, John Miller is the eldest. He said he could could not confirm that John Miller and Mark Okeyo have been fighting over who is the eldest in the home.
In cross examination by Mr. Ojala Advocate PW1 said that all the Administrators agreed that he is son of Okeyo and that he was given land in Kakrao. That in distribution they never indicated that he was entitled to land in Kakrao. He said he had never gone to the premises to ask who is paid rent and he did not know who receives rent. When his mother died, he was taken to Christabel’s house where he stayed for 6 months and was taken to his grandmother’s because he was being mistreated, not going to school and looking after cattle. His grandmother died in 1995 and he stayed with his uncle who lived with the grandmother. He said that his father never said he is Christabel’s son.
PW2 Hellen Odira Okeyo testified that she lived in Saayote village and that she sells vegetables. She said the Petitioners were her brothers Odongo Mark, Billy Okeyo and Moses Odongo Okeyo. She said she did not know about the filing of the case and she did not sign consent they brought this case to court. She said that she did not agree to them being Administrators. She said the Chief’s letter did not include her name as a beneficiary and the deceased’s daughters were excluded.She gave the names of the daughters from the 1st House as:-
Eunice Adhiambo;
Faith Deya’s
2nd House:
Grace Akinyi Okeyo,
Jane Atieno.
Hellen Odira (self),
Beatrice Achieng Okeyo,
Caroline Owino,
Millicent Apiyo Okeyo;
Maryanne Okeyo.
3rd House:
Eunice Adhiambo,
Mary Ojode Okeyo
4th House:
Benta - (deceased)
Charity Okeyo and
Rose.
She said that in the 5th House there was no girl.
She said that P & A 5 refers does not include her name not included and does not include the names of her sisters. She also said that they are also not included in the mode of distribution: PW2 said she had not renounced her right and interest in the estate. She said she lives at Saayote Suna East/ Wasweta 1/ 16961 which is in the name of Andrea Okeyo Odongo. She said she had lived there for 12 years. She said the property in which she lives is not included in deceased’s properties and she did not know why they omitted it. That is the land from which they wanted to evict her. She said she did not know if there are other properties that are not included. Hellen said that she knew the deceased had Assets in several banks. The Administrators have never disclosed to her all the deceased properties and money and she not keen on them continuing to be Administrators. She would like all the properties to be listed and each beneficiary to get their share.
In cross examination by Mr. Odero Advocate, PW2 said she is 57 years old and that she is daughter of Christabel who was still alive to date. She said she knew John Miller Okeyo who is her
elder brother from the same house. PW2 said that her relationship with Mark was not good as Mark could not open for her his door even if she slept at his veranda. She said that her daughter died and Mark never went for the funeral. She said the same applies to Billy and Moses who is her youngest brother. She said Moses is from same mother. 1st mother was Akeyo and she could not remember when she died. That she died when giving birth to her second born. The first 2 are daughters of Akeyo. Eunice and Ruth. They are alive. Faith lives at Namba in Migori and she is married in Seme; Eunice lives at Kanyamkago and married there. The problem in this case is that the Administrators did not provide for her at all. She said it was not easy to meet her brothers. That she had tried and failed. That she could not even take tea with them. Hostility was there even when her father was alive. That their father tried when alive and failed to distribute his estate. She said she would like the court to make an order as to what each beneficiary is entitled to.
In cross examination by Mr. Jura Advocate PW2 said that she was daughter of the deceased from Christabel’s house. That Christabel was also a protestor in this case. That she could not tell if Christabel was included in the cause. She said she knew Miller who is her elder brother from same mother. She also said she knew Steve Omondi who is her brother.
That when Steve’s mother died, he stayed in her mother’s house. She said her father had 4 wives. She said that she knew a man can have a child with a woman but it does not mean they are married. She said she lives in Saayote within Migori. She said the land on which she lives is very big. From the search it is 3.2 ha- 8 acres. It is an estate within town. She said she is not entitled to the whole and. She said the father gave mandate to the 3 mothers. The land is in the name of her father and it forms part of his estate. That her father gave Luke mandate to distribute but she did not know if he gave the mode of distribution. That he left3 parcels. Saayote & Kakrao. She said she did not know who resides on the land in Kakrao. That the deceased distributed in terms of 3 houses represented by a wife. That she was told by Miller about the distribution. That she occupied the Saayote as daughter of deceased and the daughter of Eunice. I do not cultivate over 2 acres. She had built a permanent house, planted maize and trees. She said the 6 acres are occupied by some people whom she does not know. That about 8 – 10 families are living there and she found them there. Some say they have been there from 20 – 30 years. She said she lived there with consent from her father and that she is in good relationship with Christabel.
Faith lives at Namba area. From Saayote to Namba is not 3 Kms. Faith is aware of this case. She is rich. PW2 said that she would like each person to get there share even she is evicted from Saayote. She said all Administrators have a problem with her. Even other sisters will confirm the same. She said she does not want Mark to be Administrator. The 3 Administrators, Odongo Mark comes from house of Tamina – 3rd wife.
Billy is from House of Nekesa Adhiambo, 4th House Moses Odongo is from house of Christabel.
All the three are from the 3 houses. She said she had not decided on who should continue with the case and the court to decided. She said she does not know all properties of deceased. She said she came to court to get my right but she had not filed her mode of distribution. She said all she wants is Saayote land. She said she did not know how much was in the bank accounts.
In cross examination by Mr. Abisai Advocate, PW2 said that the Administrators excluded her name in the mode of distribution. She said her mother is not alive. She said that at Paragraph 5 of the affidavit in support of the petition and summons for confirmation did not have account number, She said she came to court for her right to her father’s estate even if the others don’t claim. She said that she was occupying part of Suna East Wasweta 1/ 16961. That the other people in occupation were not children to the deceased. She said It was for the 3 Administrators to disclose all the properties so that the court can distribute.
Mr. Jura Advocate requested that court orders that the amounts in that account be disclosed and
Mr. Ojala Advocate said he had the Account number of KCB in Migori
The court ordered that all counsel to get together and come up with a list of all the properties that constitute the deceased’s estate within 14 days. That KCB Migori Branch do disclose to the court the amount held in Account No. 110357938 – Andrea Okeyo Odongo as at 18/10/2012 and as at 13/2/2023.
The Administrators were also ordered to disclose the Bank Accounts held at co-operative and National Bank and in default each party do come with their list of the properties and proposed mode of Administration. Matter was set for further hearing on 27/3/2023.
On 27/3/2023 Mr. Ojala Advocate informed the court that they extracted the order and served KCB branch. The initial outcome was that the account number was non-existent and that Okeyo was not their customer. That they followed up and was advised that because it is an old account they will check with the Headquarters in Nairobi. That they informed parties about the last order but there is no response. That his client told him they are still doing discovered and requested for time.
Mr. Odero Advocate also asked for more time for discussions so they could finalize accounts.
Mr. Jura Advocate similarly requested for more time. He said it is clear that the parties are not ready with the hearing. The court ordered for further mention to allow for discovery of the deceased’s estate on 10/5/2023.
On 10th May 2023 Mr. Odero Advocate informed the court that the 2nd and 3rd protestors had finalized documents and requested for a date for hearing.
Mr. Oseno Advocate informed the court that Mr. Okeyo was ready with 7 witnesses and asked for time allocation. Mr. Ojala Advocate said that Mr. Okeyo should be clear with the witnesses as there are no witness statements.
Mr. Abisai said there are protests filed. If Mr. Okeyo wishes to proceed, he should do so with or without statements. It may be a gimmick to adjourn as they refused to file list of assets.
Mr. Odero Advocate responded that they are anxious to proceed and they should proceed on basis of statements or affidavits on record. He was strongly against introducing strangers into the case when they had filed statements and affidavits. He was against leave being granted to file affidavits at this stage.
The court gave directions that the matter to proceed based on the written statements and affidavits on record.
PW3 Christabel Auma Okeyo testified that she came from Wasweta/Kadika School. That she knew Andrea Okeyo who was her husband. She said she did swear an affidavit which she adopted as her evidence in chief and relied on it. She said she would like to get the money which her husband left in the bank account and she would like land shared equally amongst the children of the deceased.
In cross examination by Mr. Abisai Advocate PW3 said that Andrea Okeyo had many daughters who are entitled to the estate.
In cross examination by Mr, Okeyo Advocate, Christabel Auma Okeyo said that before the deceased died, he had not divided the estate. He did not call a meeting of clan and children to share out the estate. She said that anybody claiming that he called the clan and children to share out the estate is a liar.
In cross examination by Mr. Odero Advocate, Christabel Auma Okeyo said that the deceased had daughters with her and for her co-wives. She said the estate is still in the name of the deceased but not all beneficiaries enjoy it.
PW4 JOHN MILLER OKEYO testified that he was resident of Kadika Village Suna Central Ward, Migori. He said he was a farmer but a retired teacher. He said Andrea Okeyo was his father. He relied on his affidavit of protest sworn and filed on 2/6/2020 as his testimony. He produced documents annexed to the affidavit as exhibits. Annexture 5A ,2 Paragraph 2, I wish to mark it as PEX 6(a) by consent.
Certificate of official search PEX 6 (a).
JAM 2 (Paragraph 22) to be produced as PEX 6 b.
Certificate of Official Search produced as PEX 6 (b).
He said he was not in agreement with the mode of distribution in Paragraph 2 of the supporting affidavit to application dated 24th February 2020 because he did not understand it. There was no consent by the family as to the mode of distribution before the proposed mode was filed in court. He said he was not consulted. Affidavit of Okeyo Mark Okeyo with mode of distribution with the beneficiaries and his name at number 4 – His signature is missing because he was not understanding the mode of distribution.
Prayer 2 (d) of the Summons; it was proposed that monies held at Migori branch be used to pay estate duties. He said he was not aware of any money at KCB Bank. An enquiry was to be done in a meeting on the amounts in the KCB but they had not met to determine the beneficial interest of each beneficiary. He said he is 1st born to Christabel Auma Okeyo, who had also not signed it.
In cross examination by Mr. Ojala Advocate he said that he was deceased’s son. He said the deceased had 16 sons and many daughters. He said he did not know the number of daughters. He said the application for confirmation of grant filed by Administrators all names are not included. In that application no property is specifically indicated. In the affidavit no property is mentioned. I do not know what is for distribution. I do not know why the contradictions. I refused to include the properties. There has been no forum to ask the Administrators. He said he was seeing the administrators in court today. He said he knew Steve Omondi Okeyo who is his step brother – father one, but different mothers. He said that Steve did not sign the mode of distribution but he signed it. He said it shows agreed mode of distribution.
In cross examination by Mr. Abisai Advocate, John Miller Okeyo said that Hellen Odira is his sister from same mother and father. He said the family of Okeyo is a respected family and people have gone to school well. He said they will not discriminate against their sisters in distribution of their father’s wealth. There have been many meetings. Proposed mode of distribution dated 21/2/2020 – none of their sisters signed the mode. That is not right. They should be included in the distribution. List of beneficiaries. Form 38 – List of beneficiaries of estate when petition was filled – none of his sisters was included in the list. It is not right.
Form P & A 5 deceased’s properties are listed as 20 – except for 1. acre of land in Suna East area but that is not all that his father had. He had more. He said that they have not sat down to ascertain what his father’s estate comprises of. There is none of his sisters who have come to court to renounce inclusion in the deceased’s estate.
In cross examination by Mr. Okeyo Advocate John Miller Okeyo said that after death of deceased he called a meeting but he could not remember what was discussed in the meeting. Meeting discussed Succession. That before his father died, he called the clan and children to talk to them. He said he could not remember who took the minutes of that meeting. He said the deceased was sick and called all sons and 3 of his step brothers and gave instructions to the stepbrothers on what should be done particularly on land matters. He assigned them a duty to allocate the parcels to his children and stated that in terms of fertility it varies in each of the parcels. He directed that each son should share in whether parcel was to be distributed. In Land parcels, the brothers demarcated according to the 3 houses. He did not direct that the parcels be divided into 3 equal parcels. Instruction came from the brothers to divide into 3. He said he was present when demarcation was done and he raised objection in one parcel. He said he could not recall if instructions were carried out during life time of his father.
As regards Steve Omondi Okeyo he could not recall the deceased giving any instructions. He said he could not recall any instructions the deceased gave over Odongo. Form 38 – Petition – he confirmed he was listed as No. 3 and he signed the documents. Paragraph 12 of his protest – he talked of properties in town. Paragraph 14 where Duncan collects is next from property belonging to the estate. Replying Affidavit of Mark and Billy Okeyo filed on 4//9/2020, MB2, Search certificate shows that it is registered in name of Ogaga and Terminah Okeyo.
Paragraph15 -, property where Moses collects rent for himself and that of his mother. I do not know if Moses used to collect rent from there when my father was still alive.
Paragraph 15 – rent was being collected pursuant to deceased’s own directive. Deceased made the directive when the mothers were present. Paragraph 16. Jeremiah Ochieng. Directive was made on that meeting.
At the meeting where deceased gave directions they talked of the property where Hellen lived was his widow (meaning for his enjoyment). He said he did not know if he intended to sell it to enjoy with his wives. He said he did not know about the land being discussed by Luke and Moses. He never heard the deceased saying that he intended to sell and any of his sons could bid for it. He said he could not recall whether Hellen was occupying the Ragana property LR. Suna East / 16691 at the time.
Paragraph 18 – 21 – he said he was not disowning the evidence that Hellen lived there. Hellen only have been living on the parcel but not legally. The deceased never gave any direction on the mode of distribution before he died. We never discussed the issue of disinheriting the daughters of deceased.
In cross examination by Mr. Odero John Miller said that there was no consensus due to inability to meet and agree on present distribution. He said he did not know why they were unable to meet. There has been no meeting on distribution
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The Administrators proposed with the consent of the beneficiaries that the estate be distributed as follows:-
a. A third of the estate to be shared equally among Odongo Mark, Fredrick Okeyo, and Dancun Owuor Okeyo.
b. A third of the estate to be shared equally among Christabel Auma Okeyo, John Miller Okeyo, Moses Odongo Okeyo, Steve Omondi Okeyo and Andy Joseph Odongo.
c. Athird of the estate to be shared equally amongst Mary Adhiambo Okeyo, David Onyango Okeyo, Billy Okeyo, Bob Collins Okeyo and Jeremiah Ochieng Okeyo.
d. It was also proposed that the estate’ duties to be paid from the estate funds at Kenya Commercial Bank Migori branch.
The summons was premised on the grounds on its face and the supporting affidavit sworn by the Administrators on 24th February 2020 and duly signed consent for the mode of distribution dated 24th February 2020 and
signed by:-
i. Christabel Auma Okeyo
ii. Mary Adhiambo Okeyo
iii. Moses Odongo Okeyo
iv. John Miller Okeyo
v. Mark Odongo Okeyo
vi. Fredrick Otieno Okeyo
vii. Ben Okoth Okeyo
viii. David Onyango Okeyo
ix. Billy Okeyo
x. Dancun Owuor Okeyo
xi. Andy Joseph Odongo
xii. Steve Omondi Okeyo
xiii. Bob Collins Okeyo
xiv. Jeremiah Ochieng Okeyo
From the Petition for grant of Letters of Administration the assets listed as making part of the estate property are:-
i. Suna West/Wasweta II/ 409 which asat 23rd May 2018 had a caution in favour of Odongo Mark ……measuring 23.8 HA
ii. Suna East/ Wasweta I/ 6709 which also had caution in favour of Odongo Mark as at the time Certificate of search was being issued with subdivision No 2964 measuring 0.13 HA
iii. Suna East/ WaswetaI/1583 against which Mark Odongo Okeyo ha lodged a caution with subdivision No. 390 measuring 14.3 HA
iv. Suna East/ Kakrao/2402 against which Mark Odongo Okeyo had lodged a caution with subdivision No. 322 measuring 36.9 HA.
v. Suna East/Area B Kwa/1141 against which Mark Odongo lodged caution with subdivision No. 592 measuring 11.3HA
vi. Suna East/ Wasweta I/10961 which is in the name of Nyakebati Johnes Chacha with subdivision No. 11032 measuring 7.47 HA
vii. Kanyamkago/KawereII/958 which had a caution lodged in favour of Thabiti Finance Co. Ltd with subdivision N0.96 measuring 16.1HA
viii. Suna West/ Wasweta/336 in the name of Andrea Okeyo measuring 8.4 HA
Upon service of the summons for confirmation Christabel Auma Okeyo and John Miller Okeyo through the firm of M/S Okongo Wandago and Co. Advocates filed an affidavit of protest sworn by John Miller Okeyo on 2nd June 2020 for reasons that some beneficiaries to the estate including daughters had not been included in the list of beneficiaries and that some assets had also not been disclosed and/ or included in the list of assets to the estate.
Steve Omondi Okeyo also filed affidavit of protest sworn on 24th August 2020 through the firm of M/S P.R. Ojala and Co. Advocates listing 21 beneficiaries including two widows and seven daughters. The 1st Protestor averred that he was not consulted on the mode of distribution as evidenced in the consent dated 24th February 2020. He also averred that the Petitioners had not disclosed the exact amounts in the deceased’ bank accounts and shares in companies and all parcels of land had also not been disclosed.
He said that he was an only son in his mothers’ house and he should not be combined with step siblings from another house. He proposed that the assets be valued and accounts be taken before distribution is done.
In a letter dated 29th January 2020 Thabiti Finance Company Limited (in liquidation) wrote to Gilbert Oginga Okeyo informing him that LR No. Kanyamkago/KawereII/958 secured a loan facility that was outstanding at Kshs 14,543,138.40 which Gilbert Oginga Okeyo had failed to clear despite the many correspondences. The Finance Company gave a notice of sale if the amount is not cleared in 40 days.
Odongo Mark Okeyo and Billy Okeyo in response to the protest swore an affidavit on 28th August 2020 through the firm of M/S Otieno Okeyo and Co Advocates and their affidavit can be accessed through the CTS.
Samuel Okombo Ondiegi cousin to the deceased also swore an undated affidavit in reply to the protest.
Similarly, Evans Okeyo, Lukio Otieno Nyachiro, Julius Okombo Onyalo, Eunice Adhiambo Ndegwa, Mary Awuor Okeyo and Charity Achieng Okeyo also swore affidavits in reply to the protest.
Before hearing of the summons and protest application dated 12th March 2021 was filed under certificate of urgency by the Administrators seeking to restrain Hellen Odira Okeyo from trespassing, wasting, building on, interfering with or dealing with in any way LR No. Suna East/Wasweta I/ 16961. Reponses to the said application were filed and directions were taken for hearing by way of submissions amidst the court also directing parties to try an out of court settlement but it did not materialize and the application was abandoned for hearing of the summons for confirmation and protest.
The 1st Protestor Steven Omondi Okeyo testified that Okeyo Andrea Odongo the deceased herein died in 2012. He said he was residing at Kadianga in Suna East, Suna Central the Ward. He said that the deceased was his father and he had 5 wives with his mother being the last wife. She was Monica Atieno Okeyo. She died 1994 when he was young. She was buried near Banana in Kimaiga Migori. He said he was the only child to his mother. He said he was the 16th son to the deceased and the youngest of his brothers. He said he came to court because he did not agree with mode of distribution of Okeyo’s property. He said he filed affidavit dated 24/8/2020 and later he filed a list of documents. He said he know Mark Okeyo who was the second born. He said the Administrators are Billy Okeyo, Moses and Mark Okeyo. They appointed themselves. They filed application for distribution. He said he did not agree with the schedule. There are plots that have not been included. Plot No. 37A Suna / Marindi. Seme / 1583, Wasweta 1 / Suna East 40B Suna. He said that he did not know why they did not include them. They appointed themselves and said they were looking for the property of Okeyo and then we go to court. The Administrators were appointed at a meeting.
A letter came from Nairobi from Fred Okeyo for people to sign. He said he needed the letter which indicated that they had agreed to come to court.
When he asked John Miller why the other properties were not included, he said that he should have asked them why they left out some of the plots. They also left out Bank Accounts. He said he did not know how much was in the Bank Accounts. That it is the Administrators who know. They said they were using money in account for Succession but did not disclose how much it was. The girls had not been listed as beneficiaries and he mentioned all the girls that had been left out. He said that he did not agree with the letter proposing distribution.
He said he knew Christabel Auma Okeyo, John Miller Okeyo, Moses Odongo Okeyo and Andy Joseph Odongo. He said that Christabel was not his mother and he did not know why he was placed in Christabel’s house. When his mother died, they all wanted to pull down his mother’s house. He said he was in the meeting. And he refused and the house stands to date. He said he does not accept to inherit 1/3 from Christabel’s house. He said he did not sign that proposal. When his father died, he had talked to him and he e never left him in Christabel’s house. He said his father gave him land. He said the land that his father gave him is included in the schedule but there is no proposal that he inherits that land. He said he does not know what 1/3 means.
They estimated the estate at 9 million. There were no liabilities. They did not say what liabilities are and he would like to know. He said the deceased gave him Kakrao/ 2402. He also said he would like a share of money in the bank. He also requested to have his exhibits admitted EX 1-5
In cross examination by Mr. Odero Advocate the witness said that they have never sat as family and agreed on the deceased’s property. He could not confirm that all that is returned in this case is his whole property. We do not know how much money was in the bank.
He said his father had an account in KCB, National Bank and Co-operative Bank. He said that he knew there is money in KCB but he did not know the amount. He said the account was blocked when he tried to find out how much money was there.
The 1st Protestor also said that there was rent that was being collected from Plot No.37A and 403 Migori as they are business premises that are let out. He said he did not know the occupants of the premises. He said it is Mark who knows who collects rent from the said premises but tenants have been in occupation since his father died in 2012 and they are still there. He said the plot was given to Christabel Auma who is a wife to his father. He said that John Miller Okeyo was his brother.
In cross examination he said that the 4th Protestor was his sister from Christabel Auma’s house. He said that Christabel Auma was the 3rd wife of Andrea Okeyo and she was alive. He said that form P & A 5 did not have Hellen Odira as beneficiaries to the estate of Okeyo and he did not know when she ceased to be Okeyo’s child. He said that there are many other sisters who are not included in the list as Okeyo had sons and daughters. Land on which Hellen was occupying Suna East Wasweta 1/16165 was not included in the schedule of properties in P & A 5. He said that his sister lives there. There are sons in the home and daughters. Hellen lives in his fathers’ land. Chief’s letter dated 8/5/2019. Letter by Chief Suna Central Location. This land was not listed in deceased’s property. There are no daughters listed as heirs in the letter by the Chief.
In cross examination by Mr. Jura Advocate the 1st Protestor said that he is a tailor. He said the deceased had 5 wives. He said his mother was living with deceased at Kadika and she died in 1994 when he was small. He said his mother’s house is there although he did not have a picture of the mother’s house. He said he did not have his mothers’ birth certificate and he had have never gone for birth certificate. He said he was 36 years old but he did not know why his father was buried away from Kadika.
He said he was about 3 years when his mother died in 1914 and he was left in the home of Okeyo. He said he used to be taken to different houses.
When his mother died he used to live in Christabel’s house and he was later removed and taken to Okeyo’s mother’s house.
In Christabel’s house, he said he was mistreated and did not learn well and that is why he feels uncomfortable. He said he would have to stand alone. Before these proceedings a letter came from Nairobi. That he did not sign the second but signed the 1st letter after he read it. PW1 said that before the petition was brought to court. They sat down but they did not agree. He said they went to KCB and were told they should go with a letter from court. That in 2018 he was in court but he had never asked court that he should be given an order to ascertain how much is in the bank.
PW1 also said that there are some plots that are rented and he did not know who collects the rents. That he had never gone to see who does business in those plots. He opposed the mode of distribution but did not write his mode of distribution. He said the deceased’s daughters were left out but they did not grant him leave to act for them. They know about the cause. Mary Ojodeh was left out; Eunice Adhiambo Ndegwa, Mary Anne Ojode. Clarity Otieno Okeyo are his sisters who are not on the list. He said that he did not know if they filed affidavit saying they have no objection to distribution. The other daughters have not filed any objection to confirmation.
Nobody has built in the piece of land. We only cultivate. We do live at home. PW1 said he has land that he cultivates. He said he was given the land by the deceased. He said that others cultivate land given to the deceased. That others don’t cultivate but have fenced. He said he would like to be given the land in Kakrao and he would like the others to be given their pieces of land if the deceased gave the land to them.
PW1 said he knew Lukio Otieno Nyachiro as a surveyor and a first cousin to his father. He said Lukio measured the land but stopped measuring when their father died. He was measuring the land as they had sat and agreed on distribution. After death of deceased, they interfered with distribution. He said he would like this case to end but he should get his right.
He said he had no problem with the administrators continuing to administer provided all the properties are included in the distribution and those left out come and say they have no interest in the properties.
Between Mark Okeyo and Miller, John Miller is the eldest. He said he could could not confirm that John Miller and Mark Okeyo have been fighting over who is the eldest in the home.
In cross examination by Mr. Ojala Advocate PW1 said that all the Administrators agreed that he is son of Okeyo and that he was given land in Kakrao. That in distribution they never indicated that he was entitled to land in Kakrao. He said he had never gone to the premises to ask who is paid rent and he did not know who receives rent. When his mother died, he was taken to Christabel’s house where he stayed for 6 months and was taken to his grandmother’s because he was being mistreated, not going to school and looking after cattle. His grandmother died in 1995 and he stayed with his uncle who lived with the grandmother. He said that his father never said he is Christabel’s son.
PW2 Hellen Odira Okeyo testified that she lived in Saayote village and that she sells vegetables. She said the Petitioners were her brothers Odongo Mark, Billy Okeyo and Moses Odongo Okeyo. She said she did not know about the filing of the case and she did not sign consent they brought this case to court. She said that she did not agree to them being Administrators. She said the Chief’s letter did not include her name as a beneficiary and the deceased’s daughters were excluded.She gave the names of the daughters from the 1st House as:-
Eunice Adhiambo;
Faith Deya’s
2nd House:
Grace Akinyi Okeyo,
Jane Atieno.
Hellen Odira (self),
Beatrice Achieng Okeyo,
Caroline Owino,
Millicent Apiyo Okeyo;
Maryanne Okeyo.
3rd House:
Eunice Adhiambo,
Mary Ojode Okeyo
4th House:
Benta - (deceased)
Charity Okeyo and
Rose.
She said that in the 5th House there was no girl.
She said that P & A 5 refers does not include her name not included and does not include the names of her sisters. She also said that they are also not included in the mode of distribution: PW2 said she had not renounced her right and interest in the estate. She said she lives at Saayote Suna East/ Wasweta 1/ 16961 which is in the name of Andrea Okeyo Odongo. She said she had lived there for 12 years. She said the property in which she lives is not included in deceased’s properties and she did not know why they omitted it. That is the land from which they wanted to evict her. She said she did not know if there are other properties that are not included. Hellen said that she knew the deceased had Assets in several banks. The Administrators have never disclosed to her all the deceased properties and money and she not keen on them continuing to be Administrators. She would like all the properties to be listed and each beneficiary to get their share.
In cross examination by Mr. Odero Advocate, PW2 said she is 57 years old and that she is daughter of Christabel who was still alive to date. She said she knew John Miller Okeyo who is her
elder brother from the same house. PW2 said that her relationship with Mark was not good as Mark could not open for her his door even if she slept at his veranda. She said that her daughter died and Mark never went for the funeral. She said the same applies to Billy and Moses who is her youngest brother. She said Moses is from same mother. 1st mother was Akeyo and she could not remember when she died. That she died when giving birth to her second born. The first 2 are daughters of Akeyo. Eunice and Ruth. They are alive. Faith lives at Namba in Migori and she is married in Seme; Eunice lives at Kanyamkago and married there. The problem in this case is that the Administrators did not provide for her at all. She said it was not easy to meet her brothers. That she had tried and failed. That she could not even take tea with them. Hostility was there even when her father was alive. That their father tried when alive and failed to distribute his estate. She said she would like the court to make an order as to what each beneficiary is entitled to.
In cross examination by Mr. Jura Advocate PW2 said that she was daughter of the deceased from Christabel’s house. That Christabel was also a protestor in this case. That she could not tell if Christabel was included in the cause. She said she knew Miller who is her elder brother from same mother. She also said she knew Steve Omondi who is her brother.
That when Steve’s mother died, he stayed in her mother’s house. She said her father had 4 wives. She said that she knew a man can have a child with a woman but it does not mean they are married. She said she lives in Saayote within Migori. She said the land on which she lives is very big. From the search it is 3.2 ha- 8 acres. It is an estate within town. She said she is not entitled to the whole and. She said the father gave mandate to the 3 mothers. The land is in the name of her father and it forms part of his estate. That her father gave Luke mandate to distribute but she did not know if he gave the mode of distribution. That he left3 parcels. Saayote & Kakrao. She said she did not know who resides on the land in Kakrao. That the deceased distributed in terms of 3 houses represented by a wife. That she was told by Miller about the distribution. That she occupied the Saayote as daughter of deceased and the daughter of Eunice. I do not cultivate over 2 acres. She had built a permanent house, planted maize and trees. She said the 6 acres are occupied by some people whom she does not know. That about 8 – 10 families are living there and she found them there. Some say they have been there from 20 – 30 years. She said she lived there with consent from her father and that she is in good relationship with Christabel.
Faith lives at Namba area. From Saayote to Namba is not 3 Kms. Faith is aware of this case. She is rich. PW2 said that she would like each person to get there share even she is evicted from Saayote. She said all Administrators have a problem with her. Even other sisters will confirm the same. She said she does not want Mark to be Administrator. The 3 Administrators, Odongo Mark comes from house of Tamina – 3rd wife.
Billy is from House of Nekesa Adhiambo, 4th House Moses Odongo is from house of Christabel.
All the three are from the 3 houses. She said she had not decided on who should continue with the case and the court to decided. She said she does not know all properties of deceased. She said she came to court to get my right but she had not filed her mode of distribution. She said all she wants is Saayote land. She said she did not know how much was in the bank accounts.
In cross examination by Mr. Abisai Advocate, PW2 said that the Administrators excluded her name in the mode of distribution. She said her mother is not alive. She said that at Paragraph 5 of the affidavit in support of the petition and summons for confirmation did not have account number, She said she came to court for her right to her father’s estate even if the others don’t claim. She said that she was occupying part of Suna East Wasweta 1/ 16961. That the other people in occupation were not children to the deceased. She said It was for the 3 Administrators to disclose all the properties so that the court can distribute.
Mr. Jura Advocate requested that court orders that the amounts in that account be disclosed and
Mr. Ojala Advocate said he had the Account number of KCB in Migori
The court ordered that all counsel to get together and come up with a list of all the properties that constitute the deceased’s estate within 14 days. That KCB Migori Branch do disclose to the court the amount held in Account No. 110357938 – Andrea Okeyo Odongo as at 18/10/2012 and as at 13/2/2023.
The Administrators were also ordered to disclose the Bank Accounts held at co-operative and National Bank and in default each party do come with their list of the properties and proposed mode of Administration. Matter was set for further hearing on 27/3/2023.
On 27/3/2023 Mr. Ojala Advocate informed the court that they extracted the order and served KCB branch. The initial outcome was that the account number was non-existent and that Okeyo was not their customer. That they followed up and was advised that because it is an old account they will check with the Headquarters in Nairobi. That they informed parties about the last order but there is no response. That his client told him they are still doing discovered and requested for time.
Mr. Odero Advocate also asked for more time for discussions so they could finalize accounts.
Mr. Jura Advocate similarly requested for more time. He said it is clear that the parties are not ready with the hearing. The court ordered for further mention to allow for discovery of the deceased’s estate on 10/5/2023.
On 10th May 2023 Mr. Odero Advocate informed the court that the 2nd and 3rd protestors had finalized documents and requested for a date for hearing.
Mr. Oseno Advocate informed the court that Mr. Okeyo was ready with 7 witnesses and asked for time allocation. Mr. Ojala Advocate said that Mr. Okeyo should be clear with the witnesses as there are no witness statements.
Mr. Abisai said there are protests filed. If Mr. Okeyo wishes to proceed, he should do so with or without statements. It may be a gimmick to adjourn as they refused to file list of assets.
Mr. Odero Advocate responded that they are anxious to proceed and they should proceed on basis of statements or affidavits on record. He was strongly against introducing strangers into the case when they had filed statements and affidavits. He was against leave being granted to file affidavits at this stage.
The court gave directions that the matter to proceed based on the written statements and affidavits on record.
PW3 Christabel Auma Okeyo testified that she came from Wasweta/Kadika School. That she knew Andrea Okeyo who was her husband. She said she did swear an affidavit which she adopted as her evidence in chief and relied on it. She said she would like to get the money which her husband left in the bank account and she would like land shared equally amongst the children of the deceased.
In cross examination by Mr. Abisai Advocate PW3 said that Andrea Okeyo had many daughters who are entitled to the estate.
In cross examination by Mr, Okeyo Advocate, Christabel Auma Okeyo said that before the deceased died, he had not divided the estate. He did not call a meeting of clan and children to share out the estate. She said that anybody claiming that he called the clan and children to share out the estate is a liar.
In cross examination by Mr. Odero Advocate, Christabel Auma Okeyo said that the deceased had daughters with her and for her co-wives. She said the estate is still in the name of the deceased but not all beneficiaries enjoy it.
PW4 JOHN MILLER OKEYO testified that he was resident of Kadika Village Suna Central Ward, Migori. He said he was a farmer but a retired teacher. He said Andrea Okeyo was his father. He relied on his affidavit of protest sworn and filed on 2/6/2020 as his testimony. He produced documents annexed to the affidavit as exhibits. Annexture 5A ,2 Paragraph 2, I wish to mark it as PEX 6(a) by consent.
Certificate of official search PEX 6 (a).
JAM 2 (Paragraph 22) to be produced as PEX 6 b.
Certificate of Official Search produced as PEX 6 (b).
He said he was not in agreement with the mode of distribution in Paragraph 2 of the supporting affidavit to application dated 24th February 2020 because he did not understand it. There was no consent by the family as to the mode of distribution before the proposed mode was filed in court. He said he was not consulted. Affidavit of Okeyo Mark Okeyo with mode of distribution with the beneficiaries and his name at number 4 – His signature is missing because he was not understanding the mode of distribution.
Prayer 2 (d) of the Summons; it was proposed that monies held at Migori branch be used to pay estate duties. He said he was not aware of any money at KCB Bank. An enquiry was to be done in a meeting on the amounts in the KCB but they had not met to determine the beneficial interest of each beneficiary. He said he is 1st born to Christabel Auma Okeyo, who had also not signed it.
In cross examination by Mr. Ojala Advocate he said that he was deceased’s son. He said the deceased had 16 sons and many daughters. He said he did not know the number of daughters. He said the application for confirmation of grant filed by Administrators all names are not included. In that application no property is specifically indicated. In the affidavit no property is mentioned. I do not know what is for distribution. I do not know why the contradictions. I refused to include the properties. There has been no forum to ask the Administrators. He said he was seeing the administrators in court today. He said he knew Steve Omondi Okeyo who is his step brother – father one, but different mothers. He said that Steve did not sign the mode of distribution but he signed it. He said it shows agreed mode of distribution.
In cross examination by Mr. Abisai Advocate, John Miller Okeyo said that Hellen Odira is his sister from same mother and father. He said the family of Okeyo is a respected family and people have gone to school well. He said they will not discriminate against their sisters in distribution of their father’s wealth. There have been many meetings. Proposed mode of distribution dated 21/2/2020 – none of their sisters signed the mode. That is not right. They should be included in the distribution. List of beneficiaries. Form 38 – List of beneficiaries of estate when petition was filled – none of his sisters was included in the list. It is not right.
Form P & A 5 deceased’s properties are listed as 20 – except for 1. acre of land in Suna East area but that is not all that his father had. He had more. He said that they have not sat down to ascertain what his father’s estate comprises of. There is none of his sisters who have come to court to renounce inclusion in the deceased’s estate.
In cross examination by Mr. Okeyo Advocate John Miller Okeyo said that after death of deceased he called a meeting but he could not remember what was discussed in the meeting. Meeting discussed Succession. That before his father died, he called the clan and children to talk to them. He said he could not remember who took the minutes of that meeting. He said the deceased was sick and called all sons and 3 of his step brothers and gave instructions to the stepbrothers on what should be done particularly on land matters. He assigned them a duty to allocate the parcels to his children and stated that in terms of fertility it varies in each of the parcels. He directed that each son should share in whether parcel was to be distributed. In Land parcels, the brothers demarcated according to the 3 houses. He did not direct that the parcels be divided into 3 equal parcels. Instruction came from the brothers to divide into 3. He said he was present when demarcation was done and he raised objection in one parcel. He said he could not recall if instructions were carried out during life time of his father.
As regards Steve Omondi Okeyo he could not recall the deceased giving any instructions. He said he could not recall any instructions the deceased gave over Odongo. Form 38 – Petition – he confirmed he was listed as No. 3 and he signed the documents. Paragraph 12 of his protest – he talked of properties in town. Paragraph 14 where Duncan collects is next from property belonging to the estate. Replying Affidavit of Mark and Billy Okeyo filed on 4//9/2020, MB2, Search certificate shows that it is registered in name of Ogaga and Terminah Okeyo.
Paragraph15 -, property where Moses collects rent for himself and that of his mother. I do not know if Moses used to collect rent from there when my father was still alive.
Paragraph 15 – rent was being collected pursuant to deceased’s own directive. Deceased made the directive when the mothers were present. Paragraph 16. Jeremiah Ochieng. Directive was made on that meeting.
At the meeting where deceased gave directions they talked of the property where Hellen lived was his widow (meaning for his enjoyment). He said he did not know if he intended to sell it to enjoy with his wives. He said he did not know about the land being discussed by Luke and Moses. He never heard the deceased saying that he intended to sell and any of his sons could bid for it. He said he could not recall whether Hellen was occupying the Ragana property LR. Suna East / 16691 at the time.
Paragraph 18 – 21 – he said he was not disowning the evidence that Hellen lived there. Hellen only have been living on the parcel but not legally. The deceased never gave any direction on the mode of distribution before he died. We never discussed the issue of disinheriting the daughters of deceased.
In cross examination by Mr. Odero John Miller said that there was no consensus due to inability to meet and agree on present distribution. He said he did not know why they were unable to meet. There has been no meeting on distribution
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