1. The controversy in this matter relates to the parcel of land known as KANYAMKAGO/KAWERE 1/127 (Hereinafter referred to as "The Suit Land.”
2. The Petitioner and Objectors are family members of the late Ibrahim Okendo Ndine (Hereinafter known as the Deceased.) The Petitioner and the 1st Objector are sons to the Deceased while the 2nd and 3rd Objectors are the daughter in-law and nephew to the Deceased respectively.
3. The Deceased died on 15th January 1990 Intestate. Sometime in 2011 the Petitioner petitioned for the administration of the estate of the deceased. That was in the Principal Magistrate's Court at Rongo in Succession Cause No. 192 of 2011.
A Grant of letters of Administration Intestate was issued to the Petitioner on 8th November 2012 and further certified by the court on 20th February 2013.
4. On 13th May 2014 the Protestors herein, then objectors/applicants, filed Summons for revocation of Grant in the High Court of Kenya at Kisii on the following grounds:
a) That the proceedings to obtain the Grant were defective in substance
b) That the Grant was fraudulently obtained through false statements and omission of the names of the Objectors as beneficiaries
c) That the Petitioner concealed the fact that the objectors are sons and daughter in-law of the deceased and further deprived them their entitlement to the Deceased’s estate
d) That the procedure employed in the distribution of the Deceased’s estate in respect to the succession proceeding was impugned in fraught with illegibility leaving out the applicants as beneficiaries.
e) That the court granting the letters of administration was devoid of Jurisdiction thereof the whole process was nullity ab initio.
f) That the Grant of letters of administration and confirmation of grant be revoked in the interest of beneficiaries
g) And that the applicants never consented to the petitioner taking out letters of administration.
5. On 29th May 2014 the High Court of Kenya at Kisii granted orders of injunction in succession cause No. 177 of 2014 (Formerly known as Succession Cause No. 192 of 2011 at the Principal Magistrate's Court at Rongo) subject to the Summons for Revocation of Grant dated 13th May 2014. The orders certified the summons urgent and pending the hearing and determination of the same, a prohibitory order of injunction was issued restraining the Petitioner from distributing or alienating the deceased’s assets particularly “The Suit Land” in any manner whatsoever for 21-days from the date of service thereof. Additionally, the Court gave an inhibitory order inhibiting any transaction, sale, change and/or any other dealings with the “Suit Land” for 21-days from the date of service thereof.
6. Service of the orders issued above were effected upon the Petitioner on 6th June 2014 and on 14th July 2014, he filed a Replying Affidavit sworn on the 13th of May 2014. Therein he challenged their claims in the application dated 13/05/2014.The Respondent contended that the 3rd Objector was a nephew to the Deceased and had land titled WEST KADIANG'A/144 very far away from the Deceased's home, and that he had been allocated the very land by the Deceased in his lifetime hence the 3rd Objector was in no way a beneficiary. The Respondent further contended that all the Objectors had been allocated land by the Deceased before his death and had titles distinct from the "Suit Land" that he had applied to administer. He further contended that the family had consented to him making an application for probate and administration and that he left the Objectors out of the succession cause on grounds that they had already benefited. He opined that should the objection be allowed, the Objectors would benefit twice making it unfair and unjust to the rest of the family.
8. Further, in the Replying Affidavit, the Respondent claimed that the objector's application for injunction could be seen as blackmail to the court as he-the 3rd Objector alleged that he was threatened with eviction knowing very well that he was on his land very far away from the “Suit Land.” The Respondent additionally attached and referred
to the area Chief's letter dated 17/08/2011 claiming that the chief knew facts on the ground and his letter listed the beneficiaries. The chief's letter is marked J.0.0.3.
9. This court observes that the objectors presented a letter from the Chief Dated 19th June 2013 and listed as Number 4 in the Objectors’ list of documents. The said letter indeed directed one Mr. Joel Obengo Kawala to stop growing sugarcane on the "Suit Land" and stated that the chief was authorized by one Mr. John Okora Okendo, who is the Petitioner in this case, to stop the 3rd objector from cultivating on the land. The court further notes that during the cross examination of the chief appearing as DW3 on 28/05/2024, the chief stated that he wrote an introductory letter of the beneficiaries and left out some beneficiaries (Thomas and Mariko) as he was told to do so by the Respondent (John Okora Okendo.)
10. On 5th February 2015, the Respondent filed a further affidavit confirming the identity of the 3rd Objector as the son to the Deceased's brother and further stated that he had his home in Nyakach Within Kisumu LR No. WEST KADIANG'A/144 very far away from the Deceased's home hence not a beneficiary of the Deceased's estate.
11. After perusing through the documents and land search documents presented by the Respondent regarding land title No. WEST KADIANG'A/144, the court notes that it is registered in the names of OBENGO KAWALA and NOT JOEL OBENGO KAWALA. As such no assumptions can be made with absolute certainty that the owner OBENGO KAWALA is in fact JOEL OBENGO KAWALA, the 3rd Objector.
12. On 11th March 2015, the 1st Objector (Now applicant) filed a supplementary affidavit in response to the Respondent’s replying affidavit dated 14/07/2014. Therein, the 1st Applicant-also the 1st Objector, counter claimed that land parcel No. KANYAMKAGO/KAWERE 1/145 was his personal land purchased through his own proceeds of work and registered in his names. Likewise, he countered that the same goes for land parcel No. KANYAMKAGO KAWERE 1/192 which his late brother Mariko Otieno Okendo purchased and registered in his names. He further argued that as sons to the Deceased, they were entitled to benefit from his estate particularly the ancestral land which is the “Suit Land” thus, their names should have been included in the Petition as beneficiaries.
13.This court notes that the 1st Objector’s claims to have purchased the land on his own were not backed up by any documents or evidence showing the sale/purchase agreement. At the same time, the Petitioner's claim that the lands were bought and given to the Objector’s by the deceased are not backed up by any evidence/document showing the sale/purchase agreement or transfer to the Objectors.
14. In the supplementary affidavit filed by the 1st Objector (Now applicant), he further stated that the Deceased had sub-divided the “Suit Land” amongst his sons wherein he cultivated and planted sugarcane and annexed a copy of a letter from the area chief marked TBO-06. He further expressed that no family meeting was held prior to the filing of the Probate and Administration in any court and that the further affidavit by the Respondent dated 5/02/2015 was irregular as no leave was sought to file the same. The 1st Objector further stated that the letter presented by the Respondent from the area chief (J.0.0.3) left out some beneficiaries in the Estate of the Deceased.
21.On 11th October 2017, by consent, Succession cause no. 177 of 2014 was transferred from Kisii High Court to Migori High Court for hearing and determination in view of the fact that both the parties and the cause of action originated from Migori County.
22. On 28th May 2019, after hearing the submissions of both the Petitioner's and Objector's counsels, the court ordered that:
a) The Grant of letters of Administration in favor of the Petitioner be revoked and 'The Suit Land’ reverts to the name of the Deceased herein (Ibrahim Okendo Ndine)
b) The form P & A5 pertaining the beneficiaries' names thereby be amended to read the names of John Okora Okendo, Thomas Bodhi Okendo, Lisper Aoko Otieno, Samwel Ndine Okendo and Lawrence Obonyo Okendo as beneficiaries.
c) A new Grant of letters of Administration thereby be issued in favor of the Petitioner and the 1st Objector.
d) The administrators and/or any of them be at liberty to apply for confirmation of the Grant notwithstanding the provisions of section 71 of the LAW OF SUCCESSION ACT.
e. Pending confirmation and distribution of the Estate, the parties maintain status quo, currently obtaining in terms of occupation, possession and use.
f) Costs of the proceedings to abide the confirmation proceedings.
23. Following the court order dated 28/05/2019 at Migori High Court, the Petitioner filed a supporting affidavit where he listed all the dependents/survivors of the Deceased but excluded the 3rd Objector on grounds that he was not a beneficiary to the estate of the Deceased as read in paragraph 19 of the affidavit. He however acknowledged the issuance of the fresh Grant in favor of the 1st Objector and himself as read in paragraph 14 of the supporting affidavit. He then stated that the 1st Objector was unwilling to enter into a compromise pertaining to the distribution of the Deceased’s estate equally amongst the 4 sons who resided or were in occupation of the 'Suit Land.’ Finally, he prayed that the court confirms the grant to expedite the distribution of the deceased's Estate in terms of the annexed schedule, and that the costs of application be paid out of the Estate. However, no consensus on the confirmation of grant was arrived at between the Petitioner and the 1st Objector in respect to the summons for confirmation of grant dated 23/08/2019.
24. The 1st Objector (Now 1st Respondent) filed an Affidavit of Protest against the Confirmation of Grant in response to the Petitioner's supporting affidavit dated 28.05/2019. He countered that the deceased died Intestate without distributing or allocating property to his sons and daughters. He further protested that the application for confirmation of Grant dated 23/08/2019 had not been consented to by all the beneficiaries regarding the distribution of the estate. In paragraph 10 of his affidavit of protest, he stated that the 3rd Objector who was left out as a beneficiary was adopted by the deceased and grew up in their home where he was eventually buried leaving his family within the same property. Subject to that, the 3rd objector should get a share as a beneficiary. He further stated that in his capacity as an administrator, he had not approved of the siblings’ mode of distribution amongst them as per the law hence the protest to confirm the grant.
25. The court notes that on the 15/11/2020 the Objectors (Now Protestors) filed supplementary statements where the 1st and 2nd Protestors and one Pamela Atieno Obengo (A Supplementary witness) stated that the Deceased allocated his sons land for subsistence farming when he was alive and utilized the rest of his land. He also stated that the Deceased had allocated part of his land to RUWE HOLY GHOST CHURCH which occupied 0.5 Ha and was present to date. However, when their parents died, the Petitioner begun isolating one of their brothers who is the 3rd Respondent as he was not a direct family member. According to the 1st Protestor the Deceased adopted the 3rd Respondent from a young age and informed that the 3rd Respondent was his late brother's son hence he adopted him as his own and wanted him to receive a small share as such. With that he prayed that both the church and the 3rd respondent be considered beneficiaries to the deceased and the share of the 3rd respondent devolve to his family as he was now deceased.
26. The 2nd Protestors supplementary statement concurred with the 1st Protetor in all aspects. In any case she stated that during her marriage to the late Mariko (Also the Deceased's son), she found the 3rd Respondent schooling in class 3, and that the Deceased had told them RUWE HOLY GHOST CHURCH belonged to him and he personally allocated part of his land to the church. Likewise, she prayed that the 3rd Respondent would have an equal share of the Deceased's property as one of his sons
27. Pamela Atieno Obengo also presented a concurring statement regarding the 3rd Respondent's relationship to the Deceased. She confirmed that she was the 2nd wife to the 3rd Respondent and divulged that the 3rd respondent had told her that he was adopted by the Deceased as his son as his father had passed away when he was still young. She additionally stated that the 3rd respondent had informed her that he was to be given an equal share amongst Okendo's sons before his death.
28. On 17/09/2024 the Petitioner and Objectors confirmed that they had filed their submissions through their respective Counsel and a date for judgement was set.
ANALYSIS AND DETERMINATION
29. This court has carefully perused the summons, the responses, the evidence, the exhibits, the witnesses' statements and the rival submissions tendered.
The issues that arise for determination are:-
a) Whether the 1st and 2nd Objectors are entitled to a share of the Estate of the Deceased?
b) Whether the 3rd Objector is a dependent of the deceased and subsequently entitled to a share of the Estate of the Deceased?
c) Whether RUWE HOLY GHOST CHURCH ought to be considered in the distribution of the estate of the Deceased?
d) Whether one SIPROSA OSILO has a share of the Deceased's estate?
Whether the 1st and 2nd Objectors are entitled to a share of the Estate of the Deceased?
31. On this issue, this court observes that the Estate in question is the 'Suit Land’ otherwise known as KANYAMKAGO/KAWERE 1/127 and NOT KANYAMKAGO/KAWERE 1/145 nor KANYAMKAGO/KAWERE 1/952. In any case, the contention and question behind the two latter parcels of land is whether they should be regarded as part of the inheritance in the Deceased's ‘Net Intestate Estate.'
SECTION 3(1) OF THE LAW OF SUCCESSION ACT (CAP 160) defines “Net Intestate Estate" as the estate of a Deceased person in respect of which he has died intestate after payment of the expenses, debts, liabilities and estate duty set under the definition of ‘Net Estate' so far as the Expenses, debts, liabilities and Estate duty are chargeable against that Estate.
Notwithstanding the manner in which the latter two parcels of land were obtained, whether purchased by the 1st objector and 2nd Objector's husband as they alleged, or given by the Deceased when alive as alleged by the Petitioner, there is consensus that the two parcels of land were owned as early as 1974 and are registered in the names of the 1st Objector and the 2nd Objectors husband thus they do not form part of the “Net Intestate Estate” left by the Deceased in his name Ibrahim Okendo Ndine. Moreover, the Deceased died in 1990, 16 years apart from the year whence the ownership of the two parcels commenced, and the Petitioner has failed to prove with evidence and documentary exhibits that the Deceased transferred or gave the parcels of land to the 1st objector and 2nd Objector's husband as gift inter vivos.
Finally, prior to the deceased passing away, he never established his wishes on how his parcels of land were to be appropriated nor confirmed that he had already given the 1st and 2nd Objectors their shares of land or inheritance to anyone. And no evidence of the same has been presented before this court. In absence of such, it can be discerned that the parcels of land owned by the 1st and 2nd Objector do not form part of the “Suit Land”
32. Having clarified that, the question remains as to whether the 1st and 2nd Objectors are entitled to a share of the “Suit Land”. This court observes and refers to the court orders given by the court through consent of both parties dated 28th May 2019 pertaining to form P& A5 and the supporting affidavit presented by the Petitioner where he listed the 1st and 2nd Objectors as beneficiaries/survivors to the Deceased. There is thus a consensus that indeed the 1st and 2nd Objectors are beneficiaries of the Deceased estate and subsequently entitled to a share of the Estate.
On whether the 3rd Objector is a dependent of the deceased and subsequently entitled to a share of the estate of the deceased, Section 29 of the Law of Succession Act (CAP 160) provides that:-
For the purposes of this Part, "dependant" means—
(a)the wife or wives, or former wife or wives, and the children of the deceased whether or not maintained by the deceased immediately prior to his death;
(b)such of the deceased's parents, step-parents, grandparents, grandchildren, step-children, children whom the deceased had taken into his family as his own, brothers and sisters, and half-brothers and half-sisters, as were being maintained by the deceased immediately prior to his death; and
(c)where the deceased was a woman, her husband if he was being maintained by her immediately prior to the date of her death.
It is not in dispute that Joel Obengo who was the nephew of the deceased was brought up by the deceased from the age of five years. When he died the Petitioner went to court to stop his burial on the suit property but the court did not allow his application on account that the said Joel had been brought up by the deceased and had settled on the suit land.
In RE ESTATE OF ANTHONY NDUIGA MUNYIRI ALIAS NDUIGA S/O MUNYIRI (DECEASED) [SUCCESSION APPEAL E015 OF 2021][2022] KEHC 139094 [KLR] the High Court at Nyeri dismissed an appeal by Njatheini Nduiga against Grace Wambui Munyi, upholding a distribution of property that recognized a daughter-in-law's entitlement and applied the principle of prior settlement.
In Beatrice Ciamutua Rugamba v Fredrick Nkari Mutegi & 5 others (2016) eKLR the court stated that
“A dependent under section 29(b) and (c) must prove that he or she was being maintained by the deceased immediately prior to his demise. It is not the mere relationship that matters, but proof of dependency that counts.”
The 3rd Objector was adopted by the deceased herein in and the 1st Protestor as well as DW1 said that they schooled together. Moreover, the 2nd Objector mentioned that she found the 3rd Objector schooling in class 3 and in the family when she got married to the late Mariko Okendo who is a son to the Deceased.
From the evidence adduced it is apparent that Joel Obengo Kawala was settled on the suit land and was even planting sugarcane a fact that was confirmed by DW3 the Chief through his letter
dated 19th June 2013 directing one Mr. Joel Obengo Kawala to stop growing sugarcane on the suit land and stated that the chief was authorized by one Mr. John Okora Okendo (The Petitioner in this case). This letter in fact contradicts the Petitioner's earlier claim made in a Replying Affidavit sworn on 14/07/2014 where he stated that the Objectors' application for injunction was in fact a blackmail to the court and that he was far away from the “Suit Land.
38. On the other hand, the Petitioner refutes the claim that Joel was adopted by the deceased at a young age and in his written submissions, he states that the 3rd Objector was not residing on the suit property with them and only had his house built in 2018. Upon perusal of the court proceedings dated 04/04/2024 in a sworn statement by the petitioner as DW1, he stated that the 1st Objector brought in the 3rd Objector to the ‘Suit Land’ in 2006 and built him a house there. These two statements contradict.
39. DW2 (Samwel Ndine Okendo) also gave a sworn statement in support of the Petitioner's case stating that the Deceased had never adopted the 3rd Objector, and that the 3rd Objector was brought by the 1st Objector to the plot in 2016. Likewise, DW3 who was the former chief of East Kadiang'a from 1996-2017 stated that he knew the 3rd Objector in 2016 when the 1st Objector brought him and built him a house on the “Suit Land.”
40. This court notes that while DW3 stated that he had known the Deceased as an old man in the village from when DW3 used to school, DW3 also admitted that in 1952 he was not yet born. As such he does not have the knowledge as to whether the deceased actually adopted the 3rd Objector. Therefore, with regards to this matter, the court will only consider the statements made by the family members of the deceased since the truth can only be deduced from their statements. Notwithstanding, the court notes the differences in the years mentioned by both DW1 and DW2 pertaining to the year when the 1st Objector allegedly brought the 3rd Objector to the suit land and built him a house.
42. The 1st and 2nd Objectors who are family members to the Petitioner in their written statements, affidavits, sworn statements and statements made during examination and cross examination are constant and do not change as to the fact that Joel Obengo was adopted by the deceased and settled on the suit property. In as much as the Petitioner claims in his written submissions that the 2nd Objector and One Pamela Atieno admitted that they never saw the 3rd Objector being brought into the home by the Deceased, both maintain that upon their arrival into the family, they found the 3rd Objector. This court will presume from the evidence on record that the said Joel Obengo was considered as a son by the deceased and therefore entitled to inherit from his estate.
In this case, the Petitioner has failed to exclusively discredit the 3rd objector’s claim of dependency. This court therefore finds the 3rd Objector a dependent of the Deceased.
47. Having established that the 3rd objector is a dependent, the court is thus guided by Section 28 and 29 of the law of Succession Act (CAP 16) to make provisions for the 3rd Objector’s survivors.
On the issue as to whether RUWE HOLY GHOST CHURCH ought to be considered in the distribution this court observes that all parties herein are in consensus that RUWE HOLY GHOST CHURCH was allocated a portion of land by the Deceased. Additionally, all parties are in consensus that the church be included as a beneficiary, and be entitled to the 0.5 Ha of the Estate which they were allocated by the Deceased.
On whether one SIPROSA OSILO is entitled to inherit from the estate, Section 29 of the Law of Succession Act (CAP 160) provides that:-
For the purposes of this Part, "dependant" means—
(a)the wife or wives, or former wife or wives, and the children of the deceased whether or not maintained by the deceased immediately prior to his death. The said Siprosa Asilo not having denounced her right to the estate is therefore entitled under the Act and the Constitution to a share of the estate.
50. The following final orders do hereby issue:-
a) The form P & A5 pertaining the beneficiaries names be amended to read the names of John Okora Okendo, Thomas Bodhi Okendo, Lisper Aoko Otieno, Samwel Ndine Okendo, Lawrence Obonyo Okendo, Siprosa Asilo and Joel Obengo Kawala as beneficiaries.
b) The eatate of the deceased will therefore be distributed as follows:-
i. Ruwe Holy Ghost Church – 0.5 Ha
ii. John Okora Okendo, Thomas Bodhi Okendo, Lisper Aoko Otieno, Samwel Ndine Okendo, Lawrence Obonyo Okendo, Siprosa Asilo and Joel Obengo Kawala to share the remainder of the estate equally. 51. Orders accordingly.
DATED, SIGNED AND DELIVERED AT MIGORI THIS 9TH DAY OF JULY 2026.
2. The Petitioner and Objectors are family members of the late Ibrahim Okendo Ndine (Hereinafter known as the Deceased.) The Petitioner and the 1st Objector are sons to the Deceased while the 2nd and 3rd Objectors are the daughter in-law and nephew to the Deceased respectively.
3. The Deceased died on 15th January 1990 Intestate. Sometime in 2011 the Petitioner petitioned for the administration of the estate of the deceased. That was in the Principal Magistrate's Court at Rongo in Succession Cause No. 192 of 2011.
A Grant of letters of Administration Intestate was issued to the Petitioner on 8th November 2012 and further certified by the court on 20th February 2013.
4. On 13th May 2014 the Protestors herein, then objectors/applicants, filed Summons for revocation of Grant in the High Court of Kenya at Kisii on the following grounds:
a) That the proceedings to obtain the Grant were defective in substance
b) That the Grant was fraudulently obtained through false statements and omission of the names of the Objectors as beneficiaries
c) That the Petitioner concealed the fact that the objectors are sons and daughter in-law of the deceased and further deprived them their entitlement to the Deceased’s estate
d) That the procedure employed in the distribution of the Deceased’s estate in respect to the succession proceeding was impugned in fraught with illegibility leaving out the applicants as beneficiaries.
e) That the court granting the letters of administration was devoid of Jurisdiction thereof the whole process was nullity ab initio.
f) That the Grant of letters of administration and confirmation of grant be revoked in the interest of beneficiaries
g) And that the applicants never consented to the petitioner taking out letters of administration.
5. On 29th May 2014 the High Court of Kenya at Kisii granted orders of injunction in succession cause No. 177 of 2014 (Formerly known as Succession Cause No. 192 of 2011 at the Principal Magistrate's Court at Rongo) subject to the Summons for Revocation of Grant dated 13th May 2014. The orders certified the summons urgent and pending the hearing and determination of the same, a prohibitory order of injunction was issued restraining the Petitioner from distributing or alienating the deceased’s assets particularly “The Suit Land” in any manner whatsoever for 21-days from the date of service thereof. Additionally, the Court gave an inhibitory order inhibiting any transaction, sale, change and/or any other dealings with the “Suit Land” for 21-days from the date of service thereof.
6. Service of the orders issued above were effected upon the Petitioner on 6th June 2014 and on 14th July 2014, he filed a Replying Affidavit sworn on the 13th of May 2014. Therein he challenged their claims in the application dated 13/05/2014.The Respondent contended that the 3rd Objector was a nephew to the Deceased and had land titled WEST KADIANG'A/144 very far away from the Deceased's home, and that he had been allocated the very land by the Deceased in his lifetime hence the 3rd Objector was in no way a beneficiary. The Respondent further contended that all the Objectors had been allocated land by the Deceased before his death and had titles distinct from the "Suit Land" that he had applied to administer. He further contended that the family had consented to him making an application for probate and administration and that he left the Objectors out of the succession cause on grounds that they had already benefited. He opined that should the objection be allowed, the Objectors would benefit twice making it unfair and unjust to the rest of the family.
8. Further, in the Replying Affidavit, the Respondent claimed that the objector's application for injunction could be seen as blackmail to the court as he-the 3rd Objector alleged that he was threatened with eviction knowing very well that he was on his land very far away from the “Suit Land.” The Respondent additionally attached and referred
to the area Chief's letter dated 17/08/2011 claiming that the chief knew facts on the ground and his letter listed the beneficiaries. The chief's letter is marked J.0.0.3.
9. This court observes that the objectors presented a letter from the Chief Dated 19th June 2013 and listed as Number 4 in the Objectors’ list of documents. The said letter indeed directed one Mr. Joel Obengo Kawala to stop growing sugarcane on the "Suit Land" and stated that the chief was authorized by one Mr. John Okora Okendo, who is the Petitioner in this case, to stop the 3rd objector from cultivating on the land. The court further notes that during the cross examination of the chief appearing as DW3 on 28/05/2024, the chief stated that he wrote an introductory letter of the beneficiaries and left out some beneficiaries (Thomas and Mariko) as he was told to do so by the Respondent (John Okora Okendo.)
10. On 5th February 2015, the Respondent filed a further affidavit confirming the identity of the 3rd Objector as the son to the Deceased's brother and further stated that he had his home in Nyakach Within Kisumu LR No. WEST KADIANG'A/144 very far away from the Deceased's home hence not a beneficiary of the Deceased's estate.
11. After perusing through the documents and land search documents presented by the Respondent regarding land title No. WEST KADIANG'A/144, the court notes that it is registered in the names of OBENGO KAWALA and NOT JOEL OBENGO KAWALA. As such no assumptions can be made with absolute certainty that the owner OBENGO KAWALA is in fact JOEL OBENGO KAWALA, the 3rd Objector.
12. On 11th March 2015, the 1st Objector (Now applicant) filed a supplementary affidavit in response to the Respondent’s replying affidavit dated 14/07/2014. Therein, the 1st Applicant-also the 1st Objector, counter claimed that land parcel No. KANYAMKAGO/KAWERE 1/145 was his personal land purchased through his own proceeds of work and registered in his names. Likewise, he countered that the same goes for land parcel No. KANYAMKAGO KAWERE 1/192 which his late brother Mariko Otieno Okendo purchased and registered in his names. He further argued that as sons to the Deceased, they were entitled to benefit from his estate particularly the ancestral land which is the “Suit Land” thus, their names should have been included in the Petition as beneficiaries.
13.This court notes that the 1st Objector’s claims to have purchased the land on his own were not backed up by any documents or evidence showing the sale/purchase agreement. At the same time, the Petitioner's claim that the lands were bought and given to the Objector’s by the deceased are not backed up by any evidence/document showing the sale/purchase agreement or transfer to the Objectors.
14. In the supplementary affidavit filed by the 1st Objector (Now applicant), he further stated that the Deceased had sub-divided the “Suit Land” amongst his sons wherein he cultivated and planted sugarcane and annexed a copy of a letter from the area chief marked TBO-06. He further expressed that no family meeting was held prior to the filing of the Probate and Administration in any court and that the further affidavit by the Respondent dated 5/02/2015 was irregular as no leave was sought to file the same. The 1st Objector further stated that the letter presented by the Respondent from the area chief (J.0.0.3) left out some beneficiaries in the Estate of the Deceased.
21.On 11th October 2017, by consent, Succession cause no. 177 of 2014 was transferred from Kisii High Court to Migori High Court for hearing and determination in view of the fact that both the parties and the cause of action originated from Migori County.
22. On 28th May 2019, after hearing the submissions of both the Petitioner's and Objector's counsels, the court ordered that:
a) The Grant of letters of Administration in favor of the Petitioner be revoked and 'The Suit Land’ reverts to the name of the Deceased herein (Ibrahim Okendo Ndine)
b) The form P & A5 pertaining the beneficiaries' names thereby be amended to read the names of John Okora Okendo, Thomas Bodhi Okendo, Lisper Aoko Otieno, Samwel Ndine Okendo and Lawrence Obonyo Okendo as beneficiaries.
c) A new Grant of letters of Administration thereby be issued in favor of the Petitioner and the 1st Objector.
d) The administrators and/or any of them be at liberty to apply for confirmation of the Grant notwithstanding the provisions of section 71 of the LAW OF SUCCESSION ACT.
e. Pending confirmation and distribution of the Estate, the parties maintain status quo, currently obtaining in terms of occupation, possession and use.
f) Costs of the proceedings to abide the confirmation proceedings.
23. Following the court order dated 28/05/2019 at Migori High Court, the Petitioner filed a supporting affidavit where he listed all the dependents/survivors of the Deceased but excluded the 3rd Objector on grounds that he was not a beneficiary to the estate of the Deceased as read in paragraph 19 of the affidavit. He however acknowledged the issuance of the fresh Grant in favor of the 1st Objector and himself as read in paragraph 14 of the supporting affidavit. He then stated that the 1st Objector was unwilling to enter into a compromise pertaining to the distribution of the Deceased’s estate equally amongst the 4 sons who resided or were in occupation of the 'Suit Land.’ Finally, he prayed that the court confirms the grant to expedite the distribution of the deceased's Estate in terms of the annexed schedule, and that the costs of application be paid out of the Estate. However, no consensus on the confirmation of grant was arrived at between the Petitioner and the 1st Objector in respect to the summons for confirmation of grant dated 23/08/2019.
24. The 1st Objector (Now 1st Respondent) filed an Affidavit of Protest against the Confirmation of Grant in response to the Petitioner's supporting affidavit dated 28.05/2019. He countered that the deceased died Intestate without distributing or allocating property to his sons and daughters. He further protested that the application for confirmation of Grant dated 23/08/2019 had not been consented to by all the beneficiaries regarding the distribution of the estate. In paragraph 10 of his affidavit of protest, he stated that the 3rd Objector who was left out as a beneficiary was adopted by the deceased and grew up in their home where he was eventually buried leaving his family within the same property. Subject to that, the 3rd objector should get a share as a beneficiary. He further stated that in his capacity as an administrator, he had not approved of the siblings’ mode of distribution amongst them as per the law hence the protest to confirm the grant.
25. The court notes that on the 15/11/2020 the Objectors (Now Protestors) filed supplementary statements where the 1st and 2nd Protestors and one Pamela Atieno Obengo (A Supplementary witness) stated that the Deceased allocated his sons land for subsistence farming when he was alive and utilized the rest of his land. He also stated that the Deceased had allocated part of his land to RUWE HOLY GHOST CHURCH which occupied 0.5 Ha and was present to date. However, when their parents died, the Petitioner begun isolating one of their brothers who is the 3rd Respondent as he was not a direct family member. According to the 1st Protestor the Deceased adopted the 3rd Respondent from a young age and informed that the 3rd Respondent was his late brother's son hence he adopted him as his own and wanted him to receive a small share as such. With that he prayed that both the church and the 3rd respondent be considered beneficiaries to the deceased and the share of the 3rd respondent devolve to his family as he was now deceased.
26. The 2nd Protestors supplementary statement concurred with the 1st Protetor in all aspects. In any case she stated that during her marriage to the late Mariko (Also the Deceased's son), she found the 3rd Respondent schooling in class 3, and that the Deceased had told them RUWE HOLY GHOST CHURCH belonged to him and he personally allocated part of his land to the church. Likewise, she prayed that the 3rd Respondent would have an equal share of the Deceased's property as one of his sons
27. Pamela Atieno Obengo also presented a concurring statement regarding the 3rd Respondent's relationship to the Deceased. She confirmed that she was the 2nd wife to the 3rd Respondent and divulged that the 3rd respondent had told her that he was adopted by the Deceased as his son as his father had passed away when he was still young. She additionally stated that the 3rd respondent had informed her that he was to be given an equal share amongst Okendo's sons before his death.
28. On 17/09/2024 the Petitioner and Objectors confirmed that they had filed their submissions through their respective Counsel and a date for judgement was set.
ANALYSIS AND DETERMINATION
29. This court has carefully perused the summons, the responses, the evidence, the exhibits, the witnesses' statements and the rival submissions tendered.
The issues that arise for determination are:-
a) Whether the 1st and 2nd Objectors are entitled to a share of the Estate of the Deceased?
b) Whether the 3rd Objector is a dependent of the deceased and subsequently entitled to a share of the Estate of the Deceased?
c) Whether RUWE HOLY GHOST CHURCH ought to be considered in the distribution of the estate of the Deceased?
d) Whether one SIPROSA OSILO has a share of the Deceased's estate?
Whether the 1st and 2nd Objectors are entitled to a share of the Estate of the Deceased?
31. On this issue, this court observes that the Estate in question is the 'Suit Land’ otherwise known as KANYAMKAGO/KAWERE 1/127 and NOT KANYAMKAGO/KAWERE 1/145 nor KANYAMKAGO/KAWERE 1/952. In any case, the contention and question behind the two latter parcels of land is whether they should be regarded as part of the inheritance in the Deceased's ‘Net Intestate Estate.'
SECTION 3(1) OF THE LAW OF SUCCESSION ACT (CAP 160) defines “Net Intestate Estate" as the estate of a Deceased person in respect of which he has died intestate after payment of the expenses, debts, liabilities and estate duty set under the definition of ‘Net Estate' so far as the Expenses, debts, liabilities and Estate duty are chargeable against that Estate.
Notwithstanding the manner in which the latter two parcels of land were obtained, whether purchased by the 1st objector and 2nd Objector's husband as they alleged, or given by the Deceased when alive as alleged by the Petitioner, there is consensus that the two parcels of land were owned as early as 1974 and are registered in the names of the 1st Objector and the 2nd Objectors husband thus they do not form part of the “Net Intestate Estate” left by the Deceased in his name Ibrahim Okendo Ndine. Moreover, the Deceased died in 1990, 16 years apart from the year whence the ownership of the two parcels commenced, and the Petitioner has failed to prove with evidence and documentary exhibits that the Deceased transferred or gave the parcels of land to the 1st objector and 2nd Objector's husband as gift inter vivos.
Finally, prior to the deceased passing away, he never established his wishes on how his parcels of land were to be appropriated nor confirmed that he had already given the 1st and 2nd Objectors their shares of land or inheritance to anyone. And no evidence of the same has been presented before this court. In absence of such, it can be discerned that the parcels of land owned by the 1st and 2nd Objector do not form part of the “Suit Land”
32. Having clarified that, the question remains as to whether the 1st and 2nd Objectors are entitled to a share of the “Suit Land”. This court observes and refers to the court orders given by the court through consent of both parties dated 28th May 2019 pertaining to form P& A5 and the supporting affidavit presented by the Petitioner where he listed the 1st and 2nd Objectors as beneficiaries/survivors to the Deceased. There is thus a consensus that indeed the 1st and 2nd Objectors are beneficiaries of the Deceased estate and subsequently entitled to a share of the Estate.
On whether the 3rd Objector is a dependent of the deceased and subsequently entitled to a share of the estate of the deceased, Section 29 of the Law of Succession Act (CAP 160) provides that:-
For the purposes of this Part, "dependant" means—
(a)the wife or wives, or former wife or wives, and the children of the deceased whether or not maintained by the deceased immediately prior to his death;
(b)such of the deceased's parents, step-parents, grandparents, grandchildren, step-children, children whom the deceased had taken into his family as his own, brothers and sisters, and half-brothers and half-sisters, as were being maintained by the deceased immediately prior to his death; and
(c)where the deceased was a woman, her husband if he was being maintained by her immediately prior to the date of her death.
It is not in dispute that Joel Obengo who was the nephew of the deceased was brought up by the deceased from the age of five years. When he died the Petitioner went to court to stop his burial on the suit property but the court did not allow his application on account that the said Joel had been brought up by the deceased and had settled on the suit land.
In RE ESTATE OF ANTHONY NDUIGA MUNYIRI ALIAS NDUIGA S/O MUNYIRI (DECEASED) [SUCCESSION APPEAL E015 OF 2021][2022] KEHC 139094 [KLR] the High Court at Nyeri dismissed an appeal by Njatheini Nduiga against Grace Wambui Munyi, upholding a distribution of property that recognized a daughter-in-law's entitlement and applied the principle of prior settlement.
In Beatrice Ciamutua Rugamba v Fredrick Nkari Mutegi & 5 others (2016) eKLR the court stated that
“A dependent under section 29(b) and (c) must prove that he or she was being maintained by the deceased immediately prior to his demise. It is not the mere relationship that matters, but proof of dependency that counts.”
The 3rd Objector was adopted by the deceased herein in and the 1st Protestor as well as DW1 said that they schooled together. Moreover, the 2nd Objector mentioned that she found the 3rd Objector schooling in class 3 and in the family when she got married to the late Mariko Okendo who is a son to the Deceased.
From the evidence adduced it is apparent that Joel Obengo Kawala was settled on the suit land and was even planting sugarcane a fact that was confirmed by DW3 the Chief through his letter
dated 19th June 2013 directing one Mr. Joel Obengo Kawala to stop growing sugarcane on the suit land and stated that the chief was authorized by one Mr. John Okora Okendo (The Petitioner in this case). This letter in fact contradicts the Petitioner's earlier claim made in a Replying Affidavit sworn on 14/07/2014 where he stated that the Objectors' application for injunction was in fact a blackmail to the court and that he was far away from the “Suit Land.
38. On the other hand, the Petitioner refutes the claim that Joel was adopted by the deceased at a young age and in his written submissions, he states that the 3rd Objector was not residing on the suit property with them and only had his house built in 2018. Upon perusal of the court proceedings dated 04/04/2024 in a sworn statement by the petitioner as DW1, he stated that the 1st Objector brought in the 3rd Objector to the ‘Suit Land’ in 2006 and built him a house there. These two statements contradict.
39. DW2 (Samwel Ndine Okendo) also gave a sworn statement in support of the Petitioner's case stating that the Deceased had never adopted the 3rd Objector, and that the 3rd Objector was brought by the 1st Objector to the plot in 2016. Likewise, DW3 who was the former chief of East Kadiang'a from 1996-2017 stated that he knew the 3rd Objector in 2016 when the 1st Objector brought him and built him a house on the “Suit Land.”
40. This court notes that while DW3 stated that he had known the Deceased as an old man in the village from when DW3 used to school, DW3 also admitted that in 1952 he was not yet born. As such he does not have the knowledge as to whether the deceased actually adopted the 3rd Objector. Therefore, with regards to this matter, the court will only consider the statements made by the family members of the deceased since the truth can only be deduced from their statements. Notwithstanding, the court notes the differences in the years mentioned by both DW1 and DW2 pertaining to the year when the 1st Objector allegedly brought the 3rd Objector to the suit land and built him a house.
42. The 1st and 2nd Objectors who are family members to the Petitioner in their written statements, affidavits, sworn statements and statements made during examination and cross examination are constant and do not change as to the fact that Joel Obengo was adopted by the deceased and settled on the suit property. In as much as the Petitioner claims in his written submissions that the 2nd Objector and One Pamela Atieno admitted that they never saw the 3rd Objector being brought into the home by the Deceased, both maintain that upon their arrival into the family, they found the 3rd Objector. This court will presume from the evidence on record that the said Joel Obengo was considered as a son by the deceased and therefore entitled to inherit from his estate.
In this case, the Petitioner has failed to exclusively discredit the 3rd objector’s claim of dependency. This court therefore finds the 3rd Objector a dependent of the Deceased.
47. Having established that the 3rd objector is a dependent, the court is thus guided by Section 28 and 29 of the law of Succession Act (CAP 16) to make provisions for the 3rd Objector’s survivors.
On the issue as to whether RUWE HOLY GHOST CHURCH ought to be considered in the distribution this court observes that all parties herein are in consensus that RUWE HOLY GHOST CHURCH was allocated a portion of land by the Deceased. Additionally, all parties are in consensus that the church be included as a beneficiary, and be entitled to the 0.5 Ha of the Estate which they were allocated by the Deceased.
On whether one SIPROSA OSILO is entitled to inherit from the estate, Section 29 of the Law of Succession Act (CAP 160) provides that:-
For the purposes of this Part, "dependant" means—
(a)the wife or wives, or former wife or wives, and the children of the deceased whether or not maintained by the deceased immediately prior to his death. The said Siprosa Asilo not having denounced her right to the estate is therefore entitled under the Act and the Constitution to a share of the estate.
50. The following final orders do hereby issue:-
a) The form P & A5 pertaining the beneficiaries names be amended to read the names of John Okora Okendo, Thomas Bodhi Okendo, Lisper Aoko Otieno, Samwel Ndine Okendo, Lawrence Obonyo Okendo, Siprosa Asilo and Joel Obengo Kawala as beneficiaries.
b) The eatate of the deceased will therefore be distributed as follows:-
i. Ruwe Holy Ghost Church – 0.5 Ha
ii. John Okora Okendo, Thomas Bodhi Okendo, Lisper Aoko Otieno, Samwel Ndine Okendo, Lawrence Obonyo Okendo, Siprosa Asilo and Joel Obengo Kawala to share the remainder of the estate equally. 51. Orders accordingly.
DATED, SIGNED AND DELIVERED AT MIGORI THIS 9TH DAY OF JULY 2026.