1. The deceased herein died on the 19.9.2019 at Aga Khan Hospital Busia and subsequently a grant of Letters of Administration Intestate was issued to the petitioners on the 22.3.2021. The petitioners are wife and brother in law to the deceased respectively while the protestors were the brother, mother and sister of the deceased.
2. The respondents subsequently filed Summons for Confirmation of the grant. Vide affidavits dated the 3.6.2022, the protestors filed affidavit of protest against the confirmation of grant of letters.
3. On the 12.2.2024, prior to the commencement of the hearing of the protests herein, the 2nd and 3rd protestors, the deceased’s mother and sister indicated their lack of interest in prosecuting their case to court and proceeded to withdraw their protests.
4. In his protest, the remaining protestor averred that he did not agree with the mode of distribution as it did not amount to a fair and equitable distribution of the deceased’s estate and that it amounted to a transfer of the deceased’s properties to the petitioners to the exclusion of other beneficiaries and creditors of the deceased’s estate.
5. The protestor averred that prior to his death, the deceased actively maintained and supported his mother Jane Anyango Anyumba and sister Tabitha Aoko Anyumba and her children as well as his (deceased’s) own son.
6. The protestor further averred that the petitioners fraudulently concealed from the court that the deceased had the following assets at the time of his demise
i. Developed Rental Plots on Plot No. 154 Migosi Site & Service Scheme LR No. 28190 COMPS 56973FR 486/3.
ii. 33 Developed Rental Units on Kisumu/Municipality Block Plot No. 5/918 located at Polyview.
iii. LR Kamagambo/Kabuoro/6268
iv. LR Kamagambo/Kabuoro/6267
v. LR Kamagambo/Kabuoro/2934
vi. 1 developed plot on Plot No. 4468 Kisumu/Konya located at Mamboleo
vii. Life Policy from Pan African Life Policy No. CR 26899
viii. Life Policy from ICEA LION Policy No. 027/CEA/127809
7. The protestor further listed that the deceased had the following liabilities;
i. Uninsured arrears on loan with Family Bank Limited of Kshs. 634,894.44
ii. Insured Loan with Co-operative Bank Limited Kshs. 10,000,000
8. The protestor further averred that the deceased took out separation education policies for his two minor children which ought to be maintained as per the deceased’s wishes.
9. The protestor urged the court to enjoin him as a co-administrator to the deceased’s estate in place of the 2nd petitioner failure to which the grant would likely be confirmed to the detriment of the deceased’s children, his 2nd wife, mother and remaining siblings.
10. The protestor reiterated the averments of his affidavit of protest in his testimony adopting the the contents therein as his evidence in chief.
11. In cross-examination the protestor admitted that he did not have any evidence of interference with the deceased’s estate nor did he have any evidence of a divorce between the 1st petitioner and the deceased. He further admitted that there was no time that the deceased’s children had been sent away from school for lack of school fees. The protestor admitted that the petitioners were not beneficiaries in the children’s education policy.
12. The petitioner further admitted that he had the title deeds to the properties he claimed were not included in the petition for grant further stating that the 1st petitioner had never made any effort to collect the same from him however he admitted that he had sent a copy of the car keys of the deceased to her through G4S but not the title deeds.
13. The 1st petitioner filed an affidavit sworn on the 5th April 2023 in response to the protest.
14. The 1st petitioner denied intermeddling with the deceased’s estate and that all beneficiaries and creditors had been included in the distribution save for the properties that the protestor had maintained their documents.
15. It was her case that the deceased at no time maintained the 2nd and 3rd protestors who the 1st petitioner averred that they were people who had been working and had various sources of income.
16. The 1st petitioner further averred that the deceased did not have a 2nd wife as was determined by the court Kisumu CMCC No. 466 of 2019 in a judgement delivered on the 11th November 2019.
17. The 1st petitioner further averred that she was the one paying the premiums on the deceased’s children education policy as their mother and as per the mode of distribution the policy belonged to the two minors and she was not getting any share but that she was getting 20% share in the deceased’s life policy with the minors getting the rest.
18. It was her case that being the deceased’s surving spouse she was best placed to get the grant of letters of administration over the deceased’s estate and that her co-administrator, who was the deceased’s best friend, was brought in as a requirement of the law as the children were still under 18 years and thus she could not be a sole administrator. She further averred that the 2nd petitioner was not getting anything from the deceased’s estate.
19. The 1st petitioner averred that by agreeing to the protestors mode of distribution, the court would be distributing the deceased’s estate to people who were not the deceased’s dependents or beneficiaries.
20. The 1st petitioner adopted the affidavit sworn on 30.8.2021 as her evidence in chief. She further reiterated the said contents in cross-examination and upon examination by court she did submit that her and the children’s security had kept them away from visiting the deceased’s ancestral home.
21. I have considered the pleadings herein, analysed the submissions filed by all the parties herein. There is no doubt that the petitioners did not include the assets listed by the 1st protestor in their petition for letters of administration. However, it is clear that the petitioners were not in a position the existence of the said assets on account of the fact that the protestor herein had retained and hid the same. Form P&A5 filed by the petitioners however reveals that the liabilities cited by the protestor were listed.
22. The protestor herein alleged that his initial co-protestors were dependents of the deceased and had been excluded from the sharing of his estate however the said co-protestors opted to withdraw their protests indicating they had no interest in the suit.
23. In cross-examination, the protestor admitted that he had no evidence of intermeddling of the deceased’s estate as alleged, that he had no evidence of the deceased’s children missing school due to lack of school fees and that the petitioners were not beneficiaries of the children’s education policy as he had alleged. The protestor admitted in re-examination that all he was doing was looking out for the best interests of the deceased’s children.
24. The evidence on record show that the protestor failed to prove his case against the petitioners. The record reveals the protestor to be a dishonest man who seemed to be well intent on frustrating the petitioners herein.
25. The provisions of Sections 107 and 109 of the Evidence Act brings out what is referred to as the legal burden of proof. That burden remains on the party which alleges the issue. In this case, therefore, the legal burden of proof lay on the protestor to proof his allegations so as to prove his allegations against the mode of distribution proposed by the petitioners. The Supreme Court in Communications Commission of Kenya & 5 Others vs. Royal Media Services Limited & 5 Others [2014] eKLR reinforced the principle that the legal burden of proof is on the party that alleges.
26. Having failed to prove his case, I find that the protest herein is without merit. I reject the protestors mode of distribution proposed in his affidavit of protest wholly.
27. The upshot of the above is that the aforementioned protest is hereby dismissed in its entirety.
28. How then should the deceased’s estate be distributed? Section 47 of the Law of Succession Act provides: -
High court shall have jurisdiction to entertain any application and determine any dispute under this Act and to pronounce such decrees and make such orders therein as may be expedient.
29. Rule 73 of the Probate & Administration Rules provides: -
Nothing in these rules shall limit or otherwise affect the inherent power of the court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the court.
30. Section 47 of the Act and rules 73 of the Probate & Administration Rules give the court powers to entertain any application and make orders as may be necessary for the ends of justice such as the instant application. The grant in the instant succession cause was 22nd March 2021. The petitioners proposed a mode of distribution of the deceased as contained in the proposal dated 30th August 2021. The petitioners further proposed an additional mode of distribution of the deceased’s estate vide their proposal dated 5th April 2023 involving the assets that had come into their knowledge.
31. I adopt both mode of proposals put forth by the petitioners as an order of this court.
32. Further to the above, I hereby order the 1st protestor herein Jack Anyumba Ogendi to surrender, within the next 7 days, original title documents within his possession, to wit, Plot No. 154 Migosi Site & Service Scheme LR No. 28190 COMPS 56973FR 486/3, Kisumu/Municipality Block Plot No. 5/918 located at Polyview, LR Kamagambo/Kabuoro/6268, LR Kamagambo/Kabuoro/6267, LR Kamagambo/Kabuoro/2934, Plot No. 4468 Kisumu/Konya located at Mamboleo and original policy documents of Life Policy from Pan African Life Policy No. CR 26899 and Life Policy from ICEA LION Policy No. 027/CEA/127809 to the Deputy Registrar of this court for onward transmission to the petitioners failure to which he shall be held in contempt of court.
33. This being a family matter each party shall bear it’s own costs.
Delivered, signed and dated at Bungoma this 7th day of February 2025.
In the presence of:
Bagada holding brief for P.D Onyango for the Petitioner
Court assistant- Diana