Introduction
1. This is a ruling on the Notice of Motion application dated 15th January 2025 filed by the Petitioner/Applicant, Charles Kibasi Magembeh. The Applicant seeks, inter alia, orders to annul the proceedings and grant issued in Ogembo Succession Cause No. E042 of 2022, and leave to apply for confirmation of the grant issued in Kisii High Court Succession Cause No. 166 of 1997.
2. The application is opposed by the Respondent, Kennedy Omariatina, who contends that the grant issued in Kisii High Court Succession Cause No. 166 of 1997 was obtained without his knowledge and is therefore null and void. The Respondent maintains that the Petitioner/Applicant claims to be a purchaser from the deceased and alleges to have settled on part of the deceased’s estate. It is the Respondent’s case that the grant issued in Ogembo Succession Cause No. E042 of 2022 was validly obtained and duly confirmed.
Issues for Determination
3. I have carefully considered the application, the response thereto, and the able submissions by counsel for both parties. The issues arising for determination are:
a. Whether the grant issued in Ogembo Succession Cause No. E042 of 2022 was validly obtained;
b. Whether the proceedings and grant issued in Kisii High Court Succession Cause No. 166 of 1997 were valid; and
c. Whether the Petitioner/Applicant is entitled to the orders sought.
Analysis
Validity of the Grant Issued in Ogembo Succession Cause No. E042 of 2022
4. The Respondent obtained the grant in Ogembo Succession Cause No. E042 of 2022 upon presentation of a death certificate and a Chief’s Introduction Letter. From the record of that cause, it is evident that the Respondent and his brothers were introduced to the Court by the Senior Chief of Itumbe Location, Mr. Henry O. Mirera, vide a letter dated 11th April 2022, as nephews of the deceased, who had neither a wife nor children at the time of his death.
5. The succession cause proceeded through gazettement, issuance of the grant, and subsequent confirmation. Although the Petitioner alleges that the documents relied upon were fraudulent, the Court finds that the Respondent complied with all the procedural requirements under the Law of Succession Act.
6. The Respondent’s failure to notify the Petitioner of the succession proceedings does not, of itself, invalidate the grant, as the purpose of gazettement is to notify all and sundry of the application for a grant of representation.
7. Further, I note that at the time of filing the instant application, the Respondent had filed an application dated 27th July 2024 before the Ogembo Court in respect of LR No. Bassi/Bogetaorio II/1615, seeking, among other orders, cancellation of title registered in the name of the Petitioner/Applicant. The Respondent argued that the said registration was fraudulent as it was effected without a confirmed grant. A preliminary objection filed by the Petitioner dated 9th September 2024 was overruled and the instant applicant was filed upon dismissal of the said preliminary objection .
8. In the circumstances, this Court finds that the grant issued in Ogembo Succession Cause No. E042 of 2022 was procedurally obtained and is valid.
(b) Validity of the Grant Issued in Kisii High Court Succession Cause No. 166 of 1997
9. The grant issued in Kisii High Court Succession Cause No. 166 of 1997 was issued on 1st December 1998 and remains unconfirmed to date. The Respondent’s assertion that the grant was obtained without his knowledge is supported by the record, particularly considering that he is a close relative of the deceased and was not notified of the proceedings.
10. The Petitioner claims to be a purchaser from the deceased. It is not in dispute that the deceased died intestate and without a spouse or children. Consequently, the persons entitled to priority in administration are those provided for under Section 39 of the Law of Succession Act, which sets out the order of priority as per consanguinity where an intestate leaves no surviving spouse or children.
11. As a purchaser, the Petitioner ought to have moved the Court by way of citation, pursuant to Rules 21 and 22 of the Probate and Administration Rules, to compel the deceased’s relatives to apply for letters of administration before filing the succession cause. This was not done.
12. The letter dated 24th March 1997 issued by the Assistant Chief of Giasaiga Sub-Location, Mr. James Onchoke Mogo, failed to disclose the existence of the deceased’s relatives and amounted to material non-disclosure. Consequently, the grant of letters of administration issued to the Petitioner on 1st December 1998 is rendered null and void.
13. I accordingly revoke the said grant under Section 76(a) and (b) of the Law of Succession Act.
14. It follows therefore that the Petitioner’s contention that the Ogembo succession cause is res judicata is without merit.
Whether the Petitioner/Applicant is Entitled to the Orders Sought
15. The Petitioner has failed to demonstrate sufficient grounds to warrant the annulment of the proceedings and grant issued in Ogembo Succession Cause No. E042 of 2022. This Court finds that the said grant was validly obtained and duly confirmed.
Determination and Orders
16. In light of the foregoing, the Court makes the following orders:
i. The Notice of Motion application dated 15th January 2025 is hereby dismissed;
ii. The grant issued in Ogembo Succession Cause No. E042 of 2022 is upheld as valid.
iii. The costs of this application shall be borne by the Petitioner/Applicant.
T. A. ODERA
JUDGE
9.2.26
Delivered virtually via the Teams platform in the presence of Mr. Magara for the Petitioner/Applicant, Mr. Ngala holding brief for Mr. Nyambati for the Respondent, and Court Assistant Mr. Kipchirchir.
1. This is a ruling on the Notice of Motion application dated 15th January 2025 filed by the Petitioner/Applicant, Charles Kibasi Magembeh. The Applicant seeks, inter alia, orders to annul the proceedings and grant issued in Ogembo Succession Cause No. E042 of 2022, and leave to apply for confirmation of the grant issued in Kisii High Court Succession Cause No. 166 of 1997.
2. The application is opposed by the Respondent, Kennedy Omariatina, who contends that the grant issued in Kisii High Court Succession Cause No. 166 of 1997 was obtained without his knowledge and is therefore null and void. The Respondent maintains that the Petitioner/Applicant claims to be a purchaser from the deceased and alleges to have settled on part of the deceased’s estate. It is the Respondent’s case that the grant issued in Ogembo Succession Cause No. E042 of 2022 was validly obtained and duly confirmed.
Issues for Determination
3. I have carefully considered the application, the response thereto, and the able submissions by counsel for both parties. The issues arising for determination are:
a. Whether the grant issued in Ogembo Succession Cause No. E042 of 2022 was validly obtained;
b. Whether the proceedings and grant issued in Kisii High Court Succession Cause No. 166 of 1997 were valid; and
c. Whether the Petitioner/Applicant is entitled to the orders sought.
Analysis
Validity of the Grant Issued in Ogembo Succession Cause No. E042 of 2022
4. The Respondent obtained the grant in Ogembo Succession Cause No. E042 of 2022 upon presentation of a death certificate and a Chief’s Introduction Letter. From the record of that cause, it is evident that the Respondent and his brothers were introduced to the Court by the Senior Chief of Itumbe Location, Mr. Henry O. Mirera, vide a letter dated 11th April 2022, as nephews of the deceased, who had neither a wife nor children at the time of his death.
5. The succession cause proceeded through gazettement, issuance of the grant, and subsequent confirmation. Although the Petitioner alleges that the documents relied upon were fraudulent, the Court finds that the Respondent complied with all the procedural requirements under the Law of Succession Act.
6. The Respondent’s failure to notify the Petitioner of the succession proceedings does not, of itself, invalidate the grant, as the purpose of gazettement is to notify all and sundry of the application for a grant of representation.
7. Further, I note that at the time of filing the instant application, the Respondent had filed an application dated 27th July 2024 before the Ogembo Court in respect of LR No. Bassi/Bogetaorio II/1615, seeking, among other orders, cancellation of title registered in the name of the Petitioner/Applicant. The Respondent argued that the said registration was fraudulent as it was effected without a confirmed grant. A preliminary objection filed by the Petitioner dated 9th September 2024 was overruled and the instant applicant was filed upon dismissal of the said preliminary objection .
8. In the circumstances, this Court finds that the grant issued in Ogembo Succession Cause No. E042 of 2022 was procedurally obtained and is valid.
(b) Validity of the Grant Issued in Kisii High Court Succession Cause No. 166 of 1997
9. The grant issued in Kisii High Court Succession Cause No. 166 of 1997 was issued on 1st December 1998 and remains unconfirmed to date. The Respondent’s assertion that the grant was obtained without his knowledge is supported by the record, particularly considering that he is a close relative of the deceased and was not notified of the proceedings.
10. The Petitioner claims to be a purchaser from the deceased. It is not in dispute that the deceased died intestate and without a spouse or children. Consequently, the persons entitled to priority in administration are those provided for under Section 39 of the Law of Succession Act, which sets out the order of priority as per consanguinity where an intestate leaves no surviving spouse or children.
11. As a purchaser, the Petitioner ought to have moved the Court by way of citation, pursuant to Rules 21 and 22 of the Probate and Administration Rules, to compel the deceased’s relatives to apply for letters of administration before filing the succession cause. This was not done.
12. The letter dated 24th March 1997 issued by the Assistant Chief of Giasaiga Sub-Location, Mr. James Onchoke Mogo, failed to disclose the existence of the deceased’s relatives and amounted to material non-disclosure. Consequently, the grant of letters of administration issued to the Petitioner on 1st December 1998 is rendered null and void.
13. I accordingly revoke the said grant under Section 76(a) and (b) of the Law of Succession Act.
14. It follows therefore that the Petitioner’s contention that the Ogembo succession cause is res judicata is without merit.
Whether the Petitioner/Applicant is Entitled to the Orders Sought
15. The Petitioner has failed to demonstrate sufficient grounds to warrant the annulment of the proceedings and grant issued in Ogembo Succession Cause No. E042 of 2022. This Court finds that the said grant was validly obtained and duly confirmed.
Determination and Orders
16. In light of the foregoing, the Court makes the following orders:
i. The Notice of Motion application dated 15th January 2025 is hereby dismissed;
ii. The grant issued in Ogembo Succession Cause No. E042 of 2022 is upheld as valid.
iii. The costs of this application shall be borne by the Petitioner/Applicant.
T. A. ODERA
JUDGE
9.2.26
Delivered virtually via the Teams platform in the presence of Mr. Magara for the Petitioner/Applicant, Mr. Ngala holding brief for Mr. Nyambati for the Respondent, and Court Assistant Mr. Kipchirchir.