1. The Applicants herein filed an Application on 1st February, 2024 under section 76 of the law of succession Act Cap 160 and Rule 44 (1) of the Probate and Administration Rules grant seeking the following orders that;
a) The Certificate of Confirmation of grant to Original Grant of representation in respect of the Estate of ONDIEKI ONGARORA (Deceased), issued to the Respondent on 18th March 1987 together with grant of letters of Administration issued in respect to this Estate be Revoked and/or Annulled and all subsequent orders and/or actions made or taken pursuant to the said grant be set aside.
b) A new grant be issued in the joint names of the Applicant’s
c) Costs be provided for.
2. The Applicant was based on the grounds outlined on the face of the Application and supporting Affidavit sworn by RONALD HITLER
ONDIEKI, the 1st Applicant herein. They stated that they are a son and daughter in to the late Ondiek Ongorora respectively. Further, the Applicants claimed that the proceedings that led to confirmation of the grant that they now seek to be revoked were done in great secrecy by the Respondents and without knowledge of the other family members. It was equally their claim that the grant was obtained fraudulently by the Respondents by them making false statements and concealing from the court the existence of other family members and beneficiary of the estate.
3. They decried that the grant was obtained by the Respondents with a sole purpose of disinheriting other family members of the family their rightful share of the family. They decried too that by dint of the fraudulent grant issued to the Respondents, the beneficiaries to the estate have sought and obtained orders vide a case at the lower court; MCELC No 71 of 2018, Charles Mabuka Onyamo & Anor vs Aakah Nyaboke Ongarora to evict them together with several other family members from their share of the family estate which constitutes a property known as Bassi/Masige/1072 among other properties. They claimed further that the Respondents averred in the lower court that they had obtained the title to the said property by way of transmission which transmission they insist was fraudulent given that all family members were not involved.
4. They claimed equally that it was only a few months ago that they learned through the advice of their advocates on record that fraudulently obtained title over parcel Bassi/Masige/1072 through transmission and ignorantly left out other properties of the estate and other beneficiaries. They contended that it is unfair and unjust for the respondent and/or her successors and assigns to evict the applicants and other dependents from the estate based on the fraudulent succession proceedings called upon the court to revoke the grant.
5. The Application came up for Interpartes hearing on 21st February, 2022 and the same proceeded. This court sought to know from counsel for the applicant how they wanted to proceed without substitution of the petitioner as upon perusing supported by the letter of the area chief annexed to the supporting affidavit which letter confirmed that the 1st Respondent/Petitioner is deceased. Upon a thorough perusal of the affidavit it is shocking that the process server averred that both the respondents were served while in the real sense the 1st Respondent was not alive to be served.
6. The said petitioner has not been substituted. This is which was concluded in 1987 and most probably the estate was fully administered. The court cannot therefore proceed to entertain this against the deceased administrator. It should be noted that from the evidence before this court that the 2nd Respondent was just but a beneficiary of the impugned succession that the Applicant would want to review with a view of revoking the grant issued to the deceased Petitioner. The estate is currently unadministered and thus there is no respondent herein. This court cannot therefore proceed to issue an order in vacuum.
7. From the forgoing therefore I proceed to strike out the application with no orders as to costs.
Delivered in Virtually via teams platform in the presence of;
Mr. Anyoka for the applicants
Court Assistant - Oigo
Anyoka: We seek mention to do a citation.
Order: Mention on 11.6.24.
Anyoka: We seek status quo orders in the meantime.
Order: There is no basis for granting status quo.
a) The Certificate of Confirmation of grant to Original Grant of representation in respect of the Estate of ONDIEKI ONGARORA (Deceased), issued to the Respondent on 18th March 1987 together with grant of letters of Administration issued in respect to this Estate be Revoked and/or Annulled and all subsequent orders and/or actions made or taken pursuant to the said grant be set aside.
b) A new grant be issued in the joint names of the Applicant’s
c) Costs be provided for.
2. The Applicant was based on the grounds outlined on the face of the Application and supporting Affidavit sworn by RONALD HITLER
ONDIEKI, the 1st Applicant herein. They stated that they are a son and daughter in to the late Ondiek Ongorora respectively. Further, the Applicants claimed that the proceedings that led to confirmation of the grant that they now seek to be revoked were done in great secrecy by the Respondents and without knowledge of the other family members. It was equally their claim that the grant was obtained fraudulently by the Respondents by them making false statements and concealing from the court the existence of other family members and beneficiary of the estate.
3. They decried that the grant was obtained by the Respondents with a sole purpose of disinheriting other family members of the family their rightful share of the family. They decried too that by dint of the fraudulent grant issued to the Respondents, the beneficiaries to the estate have sought and obtained orders vide a case at the lower court; MCELC No 71 of 2018, Charles Mabuka Onyamo & Anor vs Aakah Nyaboke Ongarora to evict them together with several other family members from their share of the family estate which constitutes a property known as Bassi/Masige/1072 among other properties. They claimed further that the Respondents averred in the lower court that they had obtained the title to the said property by way of transmission which transmission they insist was fraudulent given that all family members were not involved.
4. They claimed equally that it was only a few months ago that they learned through the advice of their advocates on record that fraudulently obtained title over parcel Bassi/Masige/1072 through transmission and ignorantly left out other properties of the estate and other beneficiaries. They contended that it is unfair and unjust for the respondent and/or her successors and assigns to evict the applicants and other dependents from the estate based on the fraudulent succession proceedings called upon the court to revoke the grant.
5. The Application came up for Interpartes hearing on 21st February, 2022 and the same proceeded. This court sought to know from counsel for the applicant how they wanted to proceed without substitution of the petitioner as upon perusing supported by the letter of the area chief annexed to the supporting affidavit which letter confirmed that the 1st Respondent/Petitioner is deceased. Upon a thorough perusal of the affidavit it is shocking that the process server averred that both the respondents were served while in the real sense the 1st Respondent was not alive to be served.
6. The said petitioner has not been substituted. This is which was concluded in 1987 and most probably the estate was fully administered. The court cannot therefore proceed to entertain this against the deceased administrator. It should be noted that from the evidence before this court that the 2nd Respondent was just but a beneficiary of the impugned succession that the Applicant would want to review with a view of revoking the grant issued to the deceased Petitioner. The estate is currently unadministered and thus there is no respondent herein. This court cannot therefore proceed to issue an order in vacuum.
7. From the forgoing therefore I proceed to strike out the application with no orders as to costs.
Delivered in Virtually via teams platform in the presence of;
Mr. Anyoka for the applicants
Court Assistant - Oigo
Anyoka: We seek mention to do a citation.
Order: Mention on 11.6.24.
Anyoka: We seek status quo orders in the meantime.
Order: There is no basis for granting status quo.