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JudgmentIn the Estate of OMARI KERE12 min read

In the Estate of OMARI KERE

High Court at Bungoma High Court · · Rose Ougo

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT BUNGOMA

SUCCESSION CAUSE NO. 216 OF 2010

IN THE MATTER OF THE ESTATE OF OMARI KERE MASIBO (DECEASED)

JOHN WANJALA OMARI……………………..……..…..PETITIONER

GETRUDE NEKESA BARASA…………………………..…..OBJECTOR RULING

  1. Omari  Kere Masibo, the deceased, died on the 19.2.2010. On the 6th of October 2010, a grant of letters of administration intestate was issued to John Wanjala Omari a son of the deceased. The deceased left one asset land parcel number Bokoli/ Chwele/404/ measuring 24 acres.  A summons to revoke the grant was filed on 19.12.2017 was filed by Getrude Nekesa  Barasa (Getrude). The said application was heard and in a judgment dated the 9th November 2018 Justice Ali Aroni  (as she then was) revoked the grant that had been issued on 6.10.2010. The confirmed grant of 25.5. 2017 was also set aside. The court re-distributed the deceased’s property as follows; Wanyonyi Kere- 8 acres, John Wanjala Omari-10 acres, Getrude Nekesa Barasa- 3 acres, and Felistus Nanjala- 3 acres. The court ordered that  Felitus and Getrudes’s share would be between the portion occupied by John  Wanjala and Wanyonyi Kere. A certificate of confirmation of the grant was issued on 28.2.2019.
  2. On 9.6.2024 Getrude filed an application seeking orders that the court be pleased to authorize and/or order the OCS Chwele police to provide security during the demarcation of the land parcel and pointing out the beacons by the surveyor in the execution of the judgment dated 9.11. 2018. Another application was filed by  Gertrude on 28.7.2021 seeking the following  orders that;
  3. spent
  4. The petitioner John Wanjala Omari Kere be ordered to comply with the judgment dated 9.11.2018.
  5. In default the court to order forceful removal and eviction of the petitioner his agents and or servants and or any other person occupying the portions rightfully and legally allocated to the objector Getrude Nekesa Barasa and Felister Nanjala Barasa which portions were demarcated  as per order dated 23.9.2020.
  6. Pending the hearing and determination of the application the court to issue a temporary injunction order restraining the respondent their agents and or servants from interfering  or carry on any transaction  and or in any manner disposal of land parcel no. Bokoli/ Chwele/ 4336 ( parcel no. 4336) and Bokoli/ Chwele/ 4337 curved from the original parcel number Bokoli/ Chwele/ 4040.
  7. Upon issuance of prayer 2 the court be pleased to authorize and or order the OCS Chwele Police station to provide security and oversee the forceful removal and or eviction of the petitioner his agents and or servants and or any other person occupying the portions Bokoli/ Chwele/ 4336 and Bokoli/Chwele/4337.
  8. Costs be in the cause. 
  9. The application filed by Getrude  has not been determined by this court. On the 18.12. 2023 this court granted the following orders; “ An order be and hereby issued restraining the petitioner and objector, respondents, by themselves, their agents, servants and whatsoever claiming under them from transferring, evicting, harassing and or interfering in any manner with Land Parcel Reference No.  Bokoli/ Chwele/ 4334, 4335, 4336 and Bokoli/Chwele/4337 original number Bokoli 404 registered in the name of the deceased herein pending hearing and determination of the summons”. .
  10. John Wanjala  Omari Kere the petitioner filed an application dated  29.11.2023. This is the application of the subject of this Ruling. The summons is for revocation of the grant. It is brought under Section 76 of the Law of Succession  (LSA) Act and Rule 73 of the Probate and Administration Rules, Section 68 of the Land Registration Act No.37 of 2012 and order 40 Rules 1,2 and 3 of the Civil Procedure Rules 2010. The applicant seeks the following orders;
  11. Spent
  12. THAT an inhabitation order do issue inhibiting registration any dealing with land reference numbers BOKOLI/CHWELE/4334, 4335, 4336 and 4337 original number BOKOLI 404 registered in the name of deceased herein pending interparties herein this application.
  13. THAT an inhabitation order do issue inhibiting registration of any dealing with land reference number BOKOLI/CHWELE/4334, 4335, 4336 and 4337 original number BOKOLI 404 registered in the name of deceased herein pending interparties herein this summons.
  14. THAT an order do issue restraining  the petition and objector, responds by themselves, their agents, servants and whatsoever claiming under them from transferring, evicting, harassing and/or interfering in any manner with land reference numbers BOKOLI/CHWELE/4334, 4335, 4336 and 4337 original number BOKOLI 404 registered in the name of deceased herein pending interparties herein of this application.
  15. THAT an order do issue restraining the petition and objector, respondents by themselves, their agents, servants and whatsoever claiming under them from transferring, evicting, harassing and or/or interfering in any manner with land with land reference numbers BOKOLI/CHWELE/4334, 4335, 4336 and 4337 original number BOKOLI 404 registered in the name of deceased herein pending herein and determination of this summons.
  16. THAT certificate of confirmation of grant confirmed on the 28th November 2018 be revoked.
  17. THAT land reference number BUNGOMA/KABUYEFWE/306 be included in the estate.
  18. THAT and order be issued for cancellation of title numbers BOKOLI/CHWELE/4334, 4335, 4336 and 4337 from the register in the lands office and revert to BOKLI/CHWELE/404 in the name of OMAR KERE MASIBO.
  19. Costs.
  20. The applicant avers as follows; the petitioner/applicant was not served with the summons of revocation of grants dated 19th December 2017. The confirmed grant issued to the petitioner/applicant was revoked without his consent, participation, or involvement. Land reference number BUNGOMA/KABUYEFWE/306 was not included in the estate. The grant was obtained frequently by making false statements or by concealment from the court of sometime material to the case. At the time the objector filed a summons for revocation of the grant dated 19th December 2017, the objector had not taken out letters of administration of her late father VINCENT BARASA. The objector’s father Vincent Barasa Wanyama before he died had sold portions of land allocated to him by the clan and bought another parcel of land at Kiminini within Trans-Nzoia county where the objector buried her mother Manea Wanyama Barasa. The petitioner/applicant only came to be aware that the certificate of confirmation of grant made on the 2nd day of May 2017 had been revoked when he was served with an eviction order by the objector in September 2023. There is a pending case at Chief Magistrate Court Bungoma ELC No. E25 of 2022 where the objector has obtained orders to evict the petitioner/applicant matter that proceeded also without the knowledge of the petitioner/applicant land where the petitioner has been living for over 73 years now together with his 19 children they don’t have any other land as other portions have been sold to buyers who are already in occupation. The confirmed grant does not reflect the family\'s wishes. The petitioner was not informed during the survey and subdivision of Land reference number BOKOLI/CHWELE/404 and the objector forged the petitioner’s/applicant’s signature on the mutation form. The objector did not register form LRA39 as required to transfer an estate of a deceased person contravening the Land Registration Act, 2012 No. 3 of 2012. The land reference number BOKOLI CHWELE 404 was subdivided and new numbers were issued without the knowledge or consent of the petitioner/applicant herein. The objector is in the process of selling land reference numbers BOKOLI/CHWELE/4334 hived out off BOKOLI/CHWELE/404. Unless an order of injunction is granted at this stage the petitioner/applicant will suffer irreparable loss. There is also a need to inhibit land reference numbers BOKOLI/CHWELE/4334,4335,4336 and 4337 original number BOKOLI/CHWELE/404 registered in the name of the deceased otherwise the purchasers in collaboration with the objector have subdivided the estate an act that render this summons academic.  The objector lacks the capacity to sue as she is a grandchild to the deceased.
  21. The application was opposed; Getrude Nekesa Barasa filed a replying affidavit dated 11.1.2024, she depones as follows; The application is frivolous, brought to this honorable court in bad faith, malicious and a waste of the court’s precious time, should not be entertained by the honorable court, therefore be dismissed with costs to the respondent. The petitioner/applicant is not sincere with prayers made in the current application as the court record is very clear of what transpired throughout the due process of the court. The orders sought for inhibition, restraining, cancellation of title are misplaced since the due process of the court was duly followed. The prayer for revocation of the grant is misleading of the court and misplaced since the applicant/petitioner has a mandate to execute and administer the estate to its finality. It is on record that a licensed process server was serving the petitioner at all times and in the process of litigation. They deny the omission of land parcel No. BUNGOMA/KABUYEFWE/306 as it is was within the mandate of the petitioner to a certain ownership. The respondents filed an application for revocation dated 19th December 2017, the petitioner was duly served and a judgment was made by the honorable court dated 9th November 2018.  The grant of letters of administration was duly issued to the petitioner on 9th November 2018, dated 28th February 2018. They filed a land case vide BUNGOMA ELC No. 25 of 2022 seeking orders of permanent injunction and restraining orders, eviction of the petitioner herein, which orders were granted vide the Decree given under the seal of the court on 4th May 2023 and issued on 6th June 2023 and notice of eviction dated 12th June 2023. The petitioner has adamantly and wilfully refused to obey court orders and further vacate from the portions allocated to other beneficiaries hence subjecting them to unnecessary anguish and suffering that is BOKOLI/CHWELE/4336 and BOKOLI/CHWELE/4337 curved from the original number BOKOLI/CHWELE/404. Despite numerous court orders, the respondent has turned violent and further disposed the parcel off part of and demarcated and allocated to the applicant. The petitioner took advantage of the beneficiaries’ ignorance to fraudulently disinherit them, which is frivolous vexatious and an abuse of due process of court. Unfortunately, the petitioner who had sworn to administer the estate faithfully has decided to deprive the beneficiaries of their rightful share and hence plea by the respondent for the court’s intervention. The petitioner/applicant’s application current application be dismissed and he be stopped from interfering and inter-meddling with the deceased’s estate he is likely to fully disinherit both GETRUDE NEKESA BARASA and FELISTUS NANJALA BARASA. Without, prejudice basis the respondent shall state that the petitioner has been the cause of all the acrimony in the family, the succession cause was initiated way back 2010 at this stage litigation must come to an end in order to give way to quite settlement and entitlement to each beneficiary. It is interest of justice that the respondents herein be considered, and the application dated 29th November 2023 be dismissed with costs to the respondents to allow her quiet possession and occupation of their rightful share.

ANALYSIS AND DETERMINATION

  1. The application was canvassed by way of oral submissions, I have considered the rival affidavits, the law in Cap 160, the Law of Succession Act( (LSA or the Act), and the earlier proceedings in the matter. The issues for determination are as; whether this court can issue the inhibition orders sought by the petitioner and,  whether Land Reference  Bungoma/ Kabuyefwe/ 306 and the certificate of grant issued on the 28th of November 2018 should be revoked.
  2. The background of this succession cause is in paragraphs 1 to 3 of this ruling. The applicant is the petitioner. He filed this succession cause. After he filed it Justice Aroni ( as she then was ) revoked the grant he had been issued with and re-distributed the only asset Land Parcel No. 404. The court record and pleadings show that the only asset the petitioner listed in his petition for grant of letters of administration intestate was Land Parcel Bokoli/ Chwele/ 404 measuring 24 acres. In his current application, he claims that land reference  Bungoma/Kabuyefwe/306 should be included in the estate. The applicant referred to paragraph 22 of his affidavit where he depones that the deceased had another parcel of land reference number Bungoma/ Kabuyefwe/306 which the clan allocated Wanyonyi Kere Omari. The applicant has not attached any document either a title or a search certificate of the said parcel of land to show that it belonged to the deceased and that it was left out of the deceased’s estate when the grant was confirmed. He who alleges a fact has to prove it( see sections 107 and 109 of the Evidence Act).  He has been and is still an administrator of the deceased’s estate.  He has failed to prove this issue.
  3. On the issue of whether the confirmation certificate should be revoked. The record shows that after the applicant filed the petition Getrude filed the application dated 19.7. 2017, seeking to revoke the grant that had been issued to the petitioner. This application was served on the petitioner on 22.12.2017 by a Process Server called Moses Kuloba Keya. He was served at his home behind Chwele Make along Chwele- Lwakhakha Tarmac road. This was in 2017. Thereafter the court delivered a judgment on 9.11.2018. The court record shows the date 6.11.2018 as being the date the judgment was read. Getrude was present, the applicant was absent. In the said judgment the court re-distributed parcel number 404 to Wanyonyi Kere, John Wanjala Omari, Getrude nekesa Barasa and Felistus Nanjala Barasa. The court held that the objectors were beneficiaries of the estate through their deceased father, who was a son of the deceased. This judgment has not been set aside nor did the applicant file an appeal against it. I am not persuaded the grant was revoked without the applicant’s consent as stated by him. there is a proper AOS on record that shows that he was served at his homestead. He has not denied that he was served with the application that was filed by Getrude.  The issue that the objector had not taken out letters of administration in my view is challenging the judgment delivered by Judge Aroni. The applicant’s only avenue is to appeal against the said decision. The estate of Vincent Barasa being a son of the deceased is entitled to their portion of the land from his father’s estate.
  4. The applicant further claims that he became aware the certificate of confirmation of grant on the 2nd May 2017 had been revoked in September 2023. On 9.6.2020 the objector filed an application seeking to have the OCS Chwele police station provide security during the demarcation of parcel number 404  as per the execution of the judgment dated 9.11. 2018. The court issued a mention notice for 17.9.2020 to the applicant and the objector and on 17.9.2020 the same process server Moses Kuloba Keya served the applicant at his home. The applicant has not denied being served by the said process as stated.  Despite being served the applicant has on both occasions failed to appear in court and the court has proceeded to issue orders in his absence, on being persuaded through the AOS that the petitioner was served. The petitioner admits that they are before the lower court in a land matter over the same parcel of land. I  am persuaded that the applicant has all along known what is happening in this matter. He has failed to persuade this court that the objector has fraudulently and/or concealed material facts to obtain the confirmation of the grant and subdivided the land as alleged. 
  5. On the last issue the applicant seeks an inhibition order. These orders were granted to the applicant temporarily at the time he filed his application under a certificate of urgency. The orders the applicant seeks relate to parcels of land that were sub-divided from parcel number 404. Having determined the deceased’s estate as a probate court,  in my view, this court lacks the jurisdiction to grant the orders being sought. Matters of registration, transfer, eviction, harassment, and interference with the occupation of land are matters dealt with by the Environment and Land (ELC) Court as provided in the Constitution 2010 and the Environment and Land Court Act, No. 19 of 2011. It is the court clothed with the jurisdiction to handle matters of fraud, unlawful eviction, and or lawful sub-division.         
  6. In conclusion I find that the applicant’s application has no merit and it is dismissed with costs to the respondent.

Dated. signed and delivered at Bungoma on the 19th day of  August 2024.

    R.E.OUGO

JUDGE

In the presence of:

Mr. Otundo                                  - For the Applicant

Getrude Nekesa Barasa                   - Respondent in person

Felistus Nanjala Barasa                 -Beneficiary  in person

Wilkister                                              - C/A

    In the Estate of OMARI KERE In the Estate of OMARI KERE