REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA OF KISII Miscellaneous Application 43 of 2008 IN THE MATTER OF THE ESTATE OF: SARAH OKELLO ………………………….………………….……DECEASED AND IN THE MATTER OF REVOCATION OF GRANT OF LETTERS OF ADMINISTRATION BETWEEN ROBERT OURU OICH ) RICHARD OSCA OUYA ) …………… OBJECTORS/APPLICANTS GEOFFREY OUMA OUYA ) AND LUDIA AUMA DIBUORO ……………..…… PETITIONER/RESPONDET RULING The petitioner filed Succession cause No. 6 of 2008 in the Principal Magistrate’s Court at Migori. In the said petition she stated that she is the mother of Sarah Okello, (hereinafter referred to as the “deceased” who died on 17th November 2007. The deceased was working at South Nyanza Sugar Company Limited (Sony). In the said petition, the deceased’s assets were shown as “benefits from Sony” whose estimated value was given as Kshs. 100,000/=. The said court issued a grant of letters of administration intestate on 4 th April 2008. On 12th May 2008 the applicants filed an application seeking revocation of the grant on grounds, inter alia, that it was obtained by fraud, concealment of material facts and/or deliberate misrepresentation. The 1st applicant stated in his affidavit in support of application that the deceased was married to Samuel Ouya Oich (also deceased) who was his brother. The deceased and her late husband did not get any children. Oich had also married Monica Atieno Ouya and Susan Atieno Ouya both of whom predeceased Sarah Okello. Monica Atieno Ouya and her husband were blessed with three children namely, Richard Osca Ouya, Geoffrey Ouma Ouya and Mary Adoyo Ouya. Susan Atieno Ouya and her deceased husband sired one child known as Victor Omondi Ouya. The deceased (Sarah Okello) therefore had the following step children: - Richard Osca Ouya Geoffrey Ouma Ouya (2nd and 3rd applicants), Mary Adoyo Ouya and Victor Omondi Ouya.
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The applicants stated that the petitioner did not disclose the above information in her petition. They also contended that the petition was filed in a court that lacked jurisdiction. Although the aforesaid application was opposed by the petitioner, this court made an order by consent of counsel for the parties that Sony do provide a statement showing what the deceased’s terminal benefits were with a view to determining whether the petition had been filed in a court of competent jurisdiction. By a letter dated 13 th may 2009, the company secretary of Sony informed this court’s deputy registrar that the deceased’s terminal benefits amounted to Kshs. 152,037.38/=. When the deceased was employed by Sony, she declared her husband, Samuel Ouya, as her next of kin. But in October 2007 she changed her declaration of the next of kin and gave the names of the petitioner (her mother), and her sisters Millicent Adhiambo Madara and Neckline Akinyi. The deceased was also said to have given to her employer a document that was titled “my will” in which she restated the names of the aforesaid persons who were named as the people entitled to her terminal benefits. The purported will was not proved and after the deceased’s death the petitioner applied for grant letters of administration intestate. She then sought an advance of the deceased’s terminal benefits amounting to Kshs. 50,000/= which was given to her. It is not clear whether the petitioner was aware of the alleged will of the deceased. It is however not in dispute that she applied for letters of administration intestate from a court that had no jurisdiction to issue the grant. Section 47 of the Law of Succession Act clearly states that where the deceased’s estate exceeds Kshs.100,000/=, jurisdiction to issue a grant of representation can only be exercised by the High Court. That being the case, this application must be allowed. I need not consider all the other issues that were raised by the applicants and opposed by the respondent. The petitioner shall bear the costs of this application. DATED, SIGNED AND DELIVERED AT KISII THIS 23RD DAY OF MARCH, 2010. D. MUSINGA JUDGE. 23/3/2010 Before D. Musinga, J. Mobisa – cc
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Mr. Ochwangi for the Applicants Mr. Kisera for the Petitioner Court: Ruling delivered in open court on 23/3/2010. D. MUSINGA JUDGE.
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