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High CourtDismissedSuccession Cause No. 95 of 2015· [2020] KEHC 88 (KLR)

In the Matter of the Estate of Elisha Okea Ogola (Deceased) - Job Oginga Ogola & Another vs Florence Murunga Okea & Another

High Court of Kenya
3 March 2020
AMA. C. Mrima
2,333 words in judgment
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·~9 min to read original · ~4 min brief

The bottom line

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To successfully challenge an estate grant in Kenya, you must prove the legal grounds and demonstrate you have the specific right to challenge it.

What this practically means

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Executive summary

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This ruling by the High Court at Migori (A. C. Mrima, J) disposed of two applications in Succession Cause No. 95 of 2015 concerning the estate of Elisha Okea Ogola: a Summons for revocation of grant dated 08/08/2016 by the First Objector, Job Oginga Ogola, and a Notice of Motion dated 17/11/2016 by the Second Objector, George Loch Mboya Ogola, seeking revocation of the grant in this cause and of the grant in Migori PMCC Succession Cause No. 14 of 1994 (the estate of the parties' father, Daniel Ogolla Sigera alias Loch Ogola). The Petitioners, the deceased's widow and son, opposed both applications. The court framed two issues: the nature of the dispute and whether the applications were merited. It traced the chequered litigation history, noting prior rulings (including this Court's Ruling No. 1 and Muchelule, J's ruling in Kisii HC Misc. Succession Cause No. 173 of 2005) that challenges to the 1994 administration belonged in the correct cause. On the merits, the court held the Objectors bore the burden of proving a Section 76 Law of Succession Act ground, but their fraud and defect allegations targeted the 1994 grant, not this one. The Objectors admitted they were not maintained by the deceased and thus were not dependants under Section 29 LSA, nor beneficiaries or purchasers of his estate; the 1994 Certificate of Confirmation showed the deceased held no property in a fiduciary capacity. They therefore lacked locus standi. Both applications were dismissed with each party bearing its own costs, given the family nature of the dispute.

Key legal issues

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01

Whether the Objectors satisfied the grounds for revocation under Section 76 of the Law of Succession Act

Holding

None of the Section 76 grounds applied to the grant in this cause; the fraud and defect allegations concerned a different estate's grant in Migori PMCC Succession Cause No. 14 of 1994.

Reasoning

The court distinguished the two estates: this cause concerns Elisha Okea Ogola's estate, while the grievances target the administration of Daniel Ogolla Sigera's estate in the 1994 Migori cause. Allegations of fraud, defective proceedings and concealment were directed at the other grant, not this one, so the Section 76 threshold was not met.

p. 4
02

Whether the Objectors are dependants or beneficiaries with locus standi

Holding

The Objectors are brothers of the deceased, not maintained by him, hence not dependants under Section 29 LSA and not beneficiaries or purchasers of his estate.

Reasoning

The Objectors testified they were not children of the deceased and were not maintained by him before his death. The Certificate of Confirmation in the 1994 cause showed the deceased did not hold the properties in a fiduciary capacity. Lacking dependant or beneficiary status, they lacked standing to interfere with this estate's administration.

p. 3

Legal principles established

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  • A party seeking revocation of a grant bears the burden of proving a ground under Section 76 of the Law of Succession Act, per Sections 107 and 109 of the Evidence Act.
  • Challenges to the administration of a different estate (the patriarch's estate) cannot be litigated in a cause concerning a distinct deceased's estate; claims must be brought in the correct cause.
  • Only dependants under Section 29 LSA or lawful beneficiaries have standing to interfere with administration of an estate.

Court orders

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  1. 1.The Summons for Revocation dated 08/08/2016 and the Notice of Motion dated 17/11/2016 are dismissed
  2. 2.Each party to bear its own costs

Authorities

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Legislation

  • Law of Succession Act, Cap. 160Section 76
  • Law of Succession Act, Cap. 160Section 29
  • Law of Succession Act, Cap. 160Section 47
  • Law of Succession Act, Cap. 160Section 40
  • Law of Succession Act, Cap. 160Section 83
  • Evidence Act, Cap. 80Sections 107 and 109
  • Probate and Administration RulesRule 44

Cases cited (4)

  • Mary Rono vs. Jane Rono & William Rono
    Eldoret Court of Appeal Civil Appeal No. 66 of 2002
  • Charles Otieno Seto & Another vs. Didacus Ojwang Onyango
    Kisii High Court Succession No. 24 of 2003 (unreported)

    Burden of proof

  • In the matter of the Estate of Daniel Ogola Sigera alias Loch Ogola (Deceased) and In the matter of an application by Job Oginga for the distribution of the deceased estate Job Oginga Ogola vs. Elisha Okea Ogola
    Kisii HC Misc. Succession Cause No. 173 of 2005 (unreported)

    Jurisdiction over succession disputes under Section 47; revocation under rule 44; distribution of polygamous estates under Section 40

  • In the Estate of Richard Karanja Javan
    (2014) eKLR

    Whether a deceased held properties in a fiduciary capacity per the Certificate of Confirmation

Jurisdiction invoked
Law of Succession Act, Cap. 160 (probate and administration jurisdiction; Section 47 as discussed)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "In the Matter of the Estate of Elisha Okea Ogola (Deceased) - Job Oginga Ogola & Another vs Florence Murunga Okea & Another", Case Analysis (2020). Succession Cause No. 95 of 2015. Source:

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.