Moses Odhiambo Otwara v Benjamin Atieno Oliech & 1 other

iv. Mary Akello It was also his evidence that his siblings are as follows: Children of Phoebe Ocharo (deceased) Claris Achieng Children of TruphenaMwanda (deceased petitioner’s mother) i. Benjamin Oliech ii. Michael Juma (deceased) iii. JaneAchola iv. Joseph Odhiambo v. Jeremiah Agengo (deceased) vi. Rose Anyango vii. George Ochieng (deceased) Children of Rose Adhiambo (deceased objector’s mother) Moses OdhiamboOtwara Children of Mary Akello i. John Ochieng ii. Caroline Awino iii. CleophasAnyange iv. Rose Akinyi It is petitioner’s case that land parcel No. Kisumu/Bar/424 was to be shared out by the family of Justo Otwaro Anyange (petitioner and objector’s father) since the family of Samson Ogendo Anyange had been given land before the demise of his grandfather. The objector faults the petitioner for not denying him and other family members a share of their grandfather’s estate. PW2 Shadrack Anyange Ogendo a son of Samson Ogendo Anyange confirmed that their father had been given land by their deceased grandfather. He supported the objector’s claim for a share of his grandfather’s estate. PW3 Mary Akello, step-mother to the petitioner and the objector confirmed that the objector is the son of her co-wife. Shee supported the objector’s claim for a share of his grandfather’s estate. PW4 Tom Onyange Odida, a distant relative of the deceased confirmed that objector and petitioner and others are grandchildren of the deceased and that they were entitled to a share of their grandfather’s estate. Petitioner/Respondent’s Case 7. The Petitioner/Respondent, Benjamin Atieno Oliech confirmed that he was a grandson of the deceased and not a son as indicated in the chief’s letter and other documents that he filed in support of this cause. 8. He confirmed that the objector was the son of his father’s 3rd wife whose name he did not know. He confirmed that the deceased had 13 grandchildren and that he distributed the estate to only 4 of them. 9. DW2 Claris Achieng and Joseph Odhiambo Otwaro, sister and brother of the petitioner respectively told court that the estate of the deceased was not equitably distributed and that the objector and other grandchildren of the deceased were denied their respective shares. Analysis and Determination

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10. The matter before the court was brought by way of an application for revocation and/or annulment of letters of administration under the provisions ofsection 76 of the Law of Succession Act and which provides as follows: Agrantofrepresentation,whetherornotconfirmed,mayatanytimeberevoked or annulled if the court decides, either on application by any interested party or of its own motion— (a) That the proceedings to obtain the grant were defective in substance; (b) That the grant was obtained by the making of a false statement or by concealment of from the court of something material to the case (c) thatthegrantwasobtainedbymeansofanuntrueallegationofafact essential in point of law to justify the grant notwithstanding that the allegation was made in ignorance or inadvertently; (d) Thatthepersontowhomthegrantwasmadehasfailed,afterdue notice and without reasonable cause either— (i) Toapplyforconfirmationofthegrantwithinoneyearfromthe date thereof, or such longer period as the court order or allow; or (ii) To proceed diligently with the administration of the estate; or (iii) toproducetothecourt,withinthetimeprescribed,anysuch inventory or account of administration as is required by the provisions of paragraphs (e) and (g) of section 83 or has produced any such inventory or account which is false in any material particular; or (e) That the grant has become useless and inoperative through subsequent circumstances 10. The issue for determination is whether the objectors/applicants’ case falls within the provisions of section 76 of the Law of Succession Act. 11. The evidence on record has disclosed that the petitioner/respondent to whom letters of administration intestate were granted is not deceased’s son as indicated in chief’s letter and other documents filed in this cause but deceased’s grandchild. 12. The evidence has further disclosed that the distribution was to only four of the deceased’s many grandchildren including the objector who were left out without any reasonable cause. 13. I am satisfied that the grant of Letters of Administration Intestate of the estate of Cleopha Nyange deceased herein, issued to the petitioner and confirmed on 1st March, 2017 was obtained by the making of a false statement and by concealment from the court of material particulars to the case. 14. Consequently, the court makes the following orders: 1. The grant of Letters of Administration Intestate of the estate of Cleopha Nyange deceased herein, issued to the petitioner and confirmed on 1st March, 2017 is hereby annulled 2. Benjamin Oliech, Moses Odhiambo Otwara, Claris Achieng and Mary Akello are appointed joint administrators of the estate of Cleopa Anyange Oliech. 3. Upon issuance of the letters of administration, the administrators shall apply for confirmation of the grant within 30 days which shall be supported by a list of names 4. all the wives and children (if deceased their spouses and children) of Justo Otwaro Anyange 5. The respondent/petitioner is hereby condemned to pay costs of this objection to the objector/applicant DATED AND DELIVERED THIS 8th DAY OF March, 2018 T. W. CHERERE JUDGE Read in open court in the presence ofCourt Assistant - Felix and Carol Petitioner/Respondent - Present Applicant/Objector - Present

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