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High CourtPartially AllowedCivil Appeal No. 41 of 2019

Michael Odhiambo Ayimba v Peter Otieno Ogutu & Aloys Ayimba Ogutu

High Court of Kenya
6 May 2020
RAR.E. Aburili
11,862 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~47 min to read original · ~4 min brief

The bottom line

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You can challenge an inheritance grant if it was obtained improperly, even if the court already approved it.

What this practically means

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Executive summary

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This first appeal from the Senior Resident Magistrate's Court at Siaya (Succession Cause No. 9 of 2018) concerned the revocation of a grant of letters of administration intestate for the estate of Paul Ogutu Ayimba, who died in 1983. The appellant, a grandson and co-administrator of his deceased father's estate, sought revocation of a grant issued to the respondents (sons of the deceased) on 5th December 2018, alleging fraud, concealment of material facts, non-disclosure of assets and beneficiaries, and disregard of a consent order in Siaya SRM ELC No. 7 of 2018 requiring his appointment as co-administrator for the first house. The trial magistrate dismissed the revocation application and confirmed the grant. Aburili J identified five issues. On locus standi, the court held the appellant, as co-administrator of his father's estate, had standing under section 76 of the Law of Succession Act, which permits any interested party to apply. On revocation, the court found the grant defective in substance: it was issued in disregard of an unreviewed consent order; consent of all persons of equal or lesser priority was not obtained as required by Rule 26(1); and LR Siaya/Karapul-Ramba/308, included in the schedule of assets, had been transferred out of the deceased's name in 2002, amounting to concealment of a material fact. However, the court declined to inquire into the legality of land transmissions for want of jurisdiction, holding that such disputes belong to the Environment and Land Court under Article 162(2)(b) and the bar in Article 165(5)(b). Allegations of intermeddling and non-disclosure of beneficiaries failed. The court also held the confirmation was fatally unprocedural as the Summons for Confirmation was never heard. The court revoked the grant and certificate of confirmation, ordered a fresh grant to four co-administrators including the appellant, directed fresh confirmation proceedings, and ordered each party to bear their own costs.

Key legal issues

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01

Locus standi of a grandson/co-administrator of his father's estate to seek revocation

Holding

The appellant had locus standi as co-administrator of his deceased father's estate and a dependant with interest in the grandfather's estate

Reasoning

Section 76 allows revocation on application by any interested party, not only beneficiaries. As co-administrator of his father's estate, the appellant had a duty to protect his father's interest in the grandfather's estate, and his interest flowed through his father's share.

p. 6
02

Whether the grant was defective in substance and fraudulently obtained

Holding

Yes - it was issued in disregard of a consent order requiring the appellant's inclusion as co-administrator, without consent of all persons of equal priority, and included an asset (LR 308) not registered in the deceased's name

Reasoning

The consent order in Siaya SRM ELC No. 7 of 2018 was never reviewed or set aside, yet the Respondents petitioned without including the appellant. Consent of all persons of equal or lesser priority was mandatory under Rule 26(1). LR 308 had been transferred out of the estate in 2002.

p. 7
03

Properness of the confirmation proceedings

Holding

The confirmation was fatally unprocedural as the Summons for Confirmation was never heard and not all beneficiaries consented to the mode of distribution

Reasoning

Rule 40(6) requires that where an affidavit of protest is filed or persons beneficially entitled have not consented, the matter be set down for directions/hearing. The trial magistrate confirmed the grant immediately upon dismissing the revocation application without such hearing.

p. 10
04

Whether the summons for revocation was time-barred or required leave

Holding

No - section 76 permits revocation at any time by any interested party, whether before or after confirmation, and no leave is required

Reasoning

The Respondents conflated objections to the making of a grant (30-day window under sections 67 and 68) and protests to confirmation with Summons for Revocation of Grant, which is a distinct remedy with no statutory time limit.

p. 11
05

Intermeddling allegations

Holding

Not proved, and in any event intermeddling is not a ground for revocation under section 76

Reasoning

Intermeddling is a criminal offence under section 45 requiring proof beyond reasonable doubt, which a civil appellate court cannot determine; the trial court also erred in finding intermeddling by the appellant.

p. 10

Legal principles established

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  • A grant of letters of administration issued in disregard of an unreviewed consent order of a competent court is defective in substance and amenable to revocation
  • Failure to obtain the consent of all persons entitled in the same degree as or in priority to the applicant renders a grant defective in substance
  • Including in the schedule of assets property not registered in the deceased's name amounts to concealment of a material fact justifying revocation
  • A grant cannot be confirmed without hearing the Summons for Confirmation where a protest exists or consent of all beneficiaries is lacking
  • Summons for Revocation of Grant under section 76 may be filed at any time, before or after confirmation, without leave of court

Court orders

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  1. 1.The grant of letters of administration intestate issued to the Respondents on 5th December 2018 together with the certificate of confirmation of grant made on 13th September 2019 be and are hereby revoked
  2. 2.A fresh grant of letters of administration shall issue in favour of Raphael Obongo Ogutu, Michael Odhiambo Ayimba, Alloys Ayimba Ogutu and Peter Otieno Ogutu as co-administrators
  3. 3.Upon re-issuance of the grant, the co-administrators shall identify all the assets and beneficiaries of the deceased and file fresh Summons for Confirmation of grant to be served on all beneficiaries
  4. 4.Each party shall bear their own costs of the appeal
On appeal from
Principal Magistrate's Court at Siaya
Siaya Succession Cause No. 9 of 2018
Jurisdiction invoked
First appellate jurisdiction under section 78 of the Civil Procedure Act over an appeal from a Senior Resident Magistrate's succession cause

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, "Michael Odhiambo Ayimba v Peter Otieno Ogutu & Aloys Ayimba Ogutu", Case Analysis (2020). Civil Appeal No. 41 of 2019. Source:

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