Monica Adhiambo Oima & 1 other v Joseph Otieno Ochere

respondent, Joseph Otieno Ochere; and that the Grant was duly issued and confirmed. They further stated that the 2nd petitioner was, in the process, recognized as a creditor to the estate in line with the provisions of Section 66 of the Law of Succession Act. 3. At paragraph 9 of their Petition, the petitioners averred that the said administrators, Susan Okumu Andang’o, Joseph Akong’o Owino and Joseph Otieno Ochere prepared the necessary transmission forms for the purpose of completing the administration exercise and presented them to the lands office but Susan Okumu Andang’o passed on before the transfers were effected. That, while the 2nd petitioner was contemplating how to progress the matter, the respondent proceeded to secretly file another succession cause, being Resident Magistrates Succession Cause No. 28 of 1990 in which he was issued with Grant on behalf of the estate of the deceased, Dismas Onyango Andang’o. 4. The petitioners were therefore aggrieved that the respondent thereafter fraudulently transferred the half share which constituted estate of Dismas Onyango Andang’o to himself in disregard of the interest of the estate of the deceased. Particulars of fraud were duly supplied at paragraph 14 of the Petition and by reason thereof the petitioners prayed for the following reliefs: (a) A declaration that the Grant of Letters of Administration Intestate to the estate of Dismas Andang’o Onyango confirmed on the 7th May 1987 through Homa Bay Succession Cause. No. 22 of 1986 is null and void (b) A declaration that the filing and confirmation of Grant to the estate of Dismas Andang’o Onyango in Homa Bay Succession Cause No. 20 of 1990 before revocation of the Grant issued in Homa Bay Resident Magistrate’s Succession Cause No. 22 of 1986 was null and void. (c) An order of revocation and nullification of the Grant of the Letters of Administration Intestate issued in favour of the respondent in Homa Bay Resident Magistrate's Court in Succession Cause No. 28 of 1990. (d) An Order of rectification of the register in respect of half share of LR No. Gem/Kajulu/37 in favour of Dismas Andang’o Onyango (e) General and exemplary damages for intermeddling with the estate of the deceased person. (f) Costs of the petition. (g) Any other relief this court may deem just and expedient to grant. 5. In response to the Petition, the respondent relied on his Replying Affidavit, sworn on 7th June 2024. He averred that he purchased half portion of the land known as Land Parcel No. Gem/Kajulu/37 from the original owner, Andang'o Manyala (now deceased) in the year 1969. He explained that the said Andang'o Manyala died on the 22nd October 1973 before he transferred the half portion of land Parcel No. Gem/Kajulu /37 to him. The respondent further averred that, in the year 1974, the widow to the late Andang’o Manyala, Susana Okumu Andang'o and the only son, Dismas Onyango Andang'o, went ahead and filed a succession cause at Rongo Magistrate’s Court and included him as a beneficiary. He annexed copies of the proceedings to his affidavit and marked them Annexure "JOO-IA and 1B". 6. The respondent further deposed that in the year 1977, the suit property was registered in the names of Dismas Onyango Andang'o and Joseph Otieno Ochere, myself as joint proprietors; and that in 1978 Dismas Onyango Andang'o, who had another parcel of land being land parcel No. Gem/Kajulu/1049, sold to him his half share of Land Parcel No. Gem/Kajulu/37 and put him (the respondent) into actual occupation of the entire property. He added that, due to the said sale, the late widow Susan Okumu Andang’o vacated land Parcel No. Gem/Kajulu/37 after her son put for her a home in the land Parcel https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6686/eng@2026-05-08 2

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No. Gem/Kajulu/1049. The respondent further explained that the 2nd petitioner, Joseph Akong’o Owino, used to live in a levirate union with Susan Okumu Andang’o and that they moved together to cohabit on land Parcel No. Gem/Kajulu/1049. 7. Further to the forgoing, the respondent averred that Dismas Onyango Andang’o died in 1983 before effecting transfer of his portion to his name; and therefore his mother, Susan Okumu Andango was constrained to file succession cause at Homa Bay Court in respect of the estate of her late son Dismas Onyango Andang'o; being Homa Bay Magistrates Succession Cause No. 22 of 1986. He further stated that, Susan included him in the said succession proceedings as a beneficiary to the said estate and specifically land parcel No. Gem/Kajulu/37. 8. It was the contention of the respondent that, after Susan died in the year 1989, she was buried on Land Parcel No. Gem/Kajulu/1049 before transmission, and therefore the succession proceedings abated due to the fact that none of the members of her family, not even the 1st petitioner, was willing to substitute the late Susana Okumu Andang'o. He therefore filed succession cause, being Homa Bay Succession Cause No. 20 of 1990 to safeguard his interest in the suit property. 9. According to the respondent, the 2nd petitioner bought a portion of land Parcel No. 1049 from Dismas Onyango Andang’o and not Parcel No. 37; and that he only staked a claim to Parcel No. 37 after the death of Susan. That as a result of the 2nd petitioner’s fraudulent claim, he filed a suit before the High Court at Kisii and before and the Environment and Land Court at Homa Bay. He produced copies of the decisions under reference as annexures to his Replying Affidavit to back up his assertion that ultimately, the Land and Environment Court ruled in his favour, thereby affirming his ownership of land Parcel No. 37 and added that the 2nd petitioner has continued to defy the decision of the Environment and Land Court by refusing to surrender the tittle deed he acquired fraudulently for destruction. 10. On his part, the respondent complained that the 2nd petitioner has continued to sell portions of land Parcel No Gem/Kajulu/37 posing as the bona fide owner of the property and has used the title deed he had obtained to deceive prospective buyers and to solicit for funds to use in numerous court cases. He annexed a copy of a letter from Land Registrar to back up his assertion that the issue of ownership has been finally settled and therefore this Petition is res judicata. He prayed for its dismissal with costs. 11. Hearing commenced before Hon. Kiarie, J. on 12th November 2024 when the 1st petitioner testified. She adopted her Supporting Affidavit as well as the witness statement dated 30th April 2024. She testified that she is the daughter of Andang’o Manyala and Susann Okumu Andang’o, both of whom are deceased. The 1st petitioner further confirmed that the deceased Dismas Onyango Andang’o was her brother and that he is also deceased. It was her evidence that the respondent took over the land piece of land belonging to Dismas after his demise. 12. The evidence of the 2nd petitioner, who testified before this Court on 27th February 2025, was along similar lines. He adopted his witness statement dated 30th April 2024 and told the Court, in essence, that the respondent fraudulently filed a succession cause in respect of the suit property and thereby caused the same to be transferred to him in disregard of the interests of the estate of the deceased, Dismas Onyango Andang’o. As far as he is concerned, Parcel No. 37 belongs to him. 13. The respondent also testified before the Court and gave his own version of the issues in contest. He denied having fraudulently acquired Parcel No. 37. His explanation was that he bought half of the land from the original owner, Andang’o Manyala, in his lifetime but the transfer was not effected in good time. He further testified that his interest was recognized by the widow of Andang’o, Susan Okumu Andang’o and his name was included as a beneficiary in the succession cause filed by Susan in 1986. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6686/eng@2026-05-08 3

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He further stated that afterwards, he bought the other half from Dismas Onyango Andang’o at the instance of Dismas; and that Dismas opted to move to his other piece of land parcel No. 1049 with his mother, Susan. 14. The respondent made reference to the numerous court cases they had with the 2nd petitioner and concluded his evidence by stating that all of them were resolved in his favour. In his view, he legitimately obtained his title to the suit property. He denied the petitioners’ allegations of fraud and prayed for the dismissal of the Petition. 15. In their final submissions, the petitioners contended that the respondent only purchased half portion of the suit property and not the entire piece. They submitted that in filing another succession cause after the conclusion of the first cause filed by Susan Okumu Andango the respondent acted not only fraudulently but in disregard of the doctrine of res judicata. Accordingly, the petitioners submitted that the Court has jurisdiction under Section 48 of the Law of Succession Act as well as Articles 165 and 258 of the Constitution to address the legal effects of the two contradictory decisions by declaring the second Grant null and void to pave way for proper administration of the estate of Dismas Onyango Andang’o. 16. The respondent relied on his written submissions dated 13th June 2025. He reiterated the factual basis of his case and submitted that he is the owner of the entire parcel of land known as Land No. Gem/Kajulu/37, having purchased the same for value from Andang’o Manyala and his son Dismal Onyango Andang’o. He submitted that the petitioners have engaged him in several lawsuits over the years including Migori ELC Case No. 801 of 2017, Homa Bay High Court Civil Appeal No. 5 of 2020 and Homa Bay Resident Magistrates Succession Cause No. 20 of 1986. 17. Accordingly, the respondent relied on Section 7 of the Civil Procedure Act to support his submission that the petitioners are barred from instituting any other suit or claim over land Parcel No. Gem/ Kajulu/37. He also relied on Supreme Court Petition No. 8 (E010} of 2021 and East African Court of Justice at Arusha, Application No. 6 of 2020: The Attorney General of the Republic of Rwanda v Kalali Steven and sought that the Petition be dismissed with costs. 18. I have given careful consideration to the Petition, its Supporting Affidavit, the response filed by the respondent as well as the evidence adduced by the parties. I have similarly considered the written submissions filed by the parties. It would be remiss of the Court to not consider whether from the evidence and arguments presented herein, this is indeed a matter fit for consideration as a constitutional petition. 19. In Anarita Karimi Njeru v Republic [1979] 1 KLR 154 it was held: …if a person is seeking redress from the High Court on a matter which involves a reference to the Constitution, it is important (if only to ensure that justice is done to his case) that he should set out with a reasonable degree of precision that of which he complains, the provisions said to be infringed, and the manner in which they are alleged to be infringed.” 20. The principle was reiterated by the Court of Appeal in the case of Mumo Matemu v Trusted Society of Human Rights Alliance & 5 others [2013] eKLR as follows: …the principle in Anarita Karimi Njeru (supra) underscores the importance of defining the dispute to be decided by the court. In our view, it is a misconception to claim as it has been in recent times with increased frequency that compliance with rules of procedure is antithetical to Article 159 of the Constitution and the overriding objective principle under section 1A and 1B of the Civil Procedure Act (Cap 21) and section 3A and 3B of the Appellate Jurisdiction Act (Cap 9). Procedure is also a handmaiden of just determination of cases. Cases cannot be dealt https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6686/eng@2026-05-08 4

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with justly unless the parties and the court know the issues in controversy. Pleadings assist in that regard and are a tenet of substantive justice, as they give fair notice to the other party. The principle in Anarita Karimi Njeru (supra) that established the rule that requires reasonable precision in framing of issues in constitutional petitions is an extension of this principle. What Jessel, M.R said in 1876 in the case of Thorp v Holdsworth (1876) 3 Ch. D. 637 at 639 holds true today: “The whole object of pleadings is to bring the parties to an issue, and the meaning of the rules…was to prevent the issue being enlarged, which would prevent either party from knowing when the cause came on for trial, what the real point to be discussed and decided was. In fact, the whole meaning of the system is to narrow the parties to define issues, and thereby diminish expense and delay, especially as regards the amount of testimony required on either side at the hearing.” 21. And, in Communications Commission of Kenya & 5 others v Royal Media Services Limited & 5 others [2014] eKLR, the Supreme Court made the point as follows: 34. …Although Article 22(1) of the Constitution gives every person the right to initiate proceedings claiming that a fundamental right or freedom has been denied, violated or infringed or threatened, a party invoking this Article has to show the rights said to be infringed, as well as the basis of his or her grievance. This principle emerges clearly from the High Court decision in Anarita Karimi Njeru v. Republic, (1979) KLR 154: the necessity of a link between the aggrieved party, the provisions of the Constitution alleged to have been contravened, and the manifestation of contravention or infringement. Such a principle plays a positive role, as a foundation of conviction and good faith, in engaging the constitutional process of dispute settlement…” 22. Therefore, it is now trite that a person who alleges a violation of any constitutional right or freedom must plead such alleged violation with a reasonable degree of specificity. This issue arises before the consideration of the Petition on its merits because there is not a single reference to the Constitution in the Petition dated 30th April 2024. Consequently, no attempt was made by the petitioners to demonstrate how the respondent violated their constitutional rights or indeed any of the provisions of the Constitution. 23. In the case of K K B v S C M & 5 others (Constitutional Petition 014 of 2020) [2022] KEHC 289 (KLR) (22 April 2022) (Ruling), Hon. Mativo, J. (as he then was) expressed himself on the doctrine or ripeness as hereunder: In summation, the doctrines of ripeness and constitutional avoidance shun to deal with a constitutional issue where there exists another legal course which can give the litigant the relief he seeks. In other words, a constitutional issue is not ripe for determination until the determination of the constitutional issue is the only course that can give the litigant the remedy he seeks. Both constitutional avoidance and ripeness avert the determination of the constitutional issues until it becomes very necessary to the extent that it is the only course available to assist the litigant’s cause…” 24. Similarly, in the case of Faraj & 3 others v Police & 2 others (Constitutional Petition 165 of 2020) [2022] KEHC 287 (KLR) (27 April 2022) (Judgment) the court held: 27. The doctrine of avoidance is primarily viewed by courts from the position that although a court could take up a matter and hear it, it would still decline to do so if there is another mechanism through which the dispute could be resolved. In that regard, the Supreme Court https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6686/eng@2026-05-08 5

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stated in Communication Commission of Kenya & 5 Others v Royal Media Services Ltd & 5 others (at para 256) that the principle of avoidance means that a Court will not determine a constitutional issue when a matter may properly be decided on another basis.” … 29. 25. The doctrine of ripeness and constitutional avoidance gives credence to the concept that the Constitution does not operate in a vacuum or isolation. It has to be interpreted and applied in conjunction with applicable legislation together with other available legal remedies. Where there are alternative remedies the preferred route is to apply such remedies before resorting to the Constitution. The possibility of the elevation of any dispute to a constitutional issue is what is sought to be averted by the doctrines of ripeness and constitutional avoidance. It is borne out of a realisation that all legislative or common-law remedies are part of the legal system…” And, in Petition 14, 14A, 14B & 14C of 2014 (Consolidated) Communications Commission of Kenya & 5 others v Royal Media Services Limited & 5 others [2014] eKLR (29th September 2014) (Judgment) the Supreme Court made it clear that: (256) …The principle of avoidance entails that a Court will not determine a constitutional issue, when a matter may properly be decided on another basis. In South Africa, in S v. Mhlungu, 1995 (3) SA 867 (CC) the Constitutional Court Kentridge AJ, articulated the principle of avoidance in his minority Judgment as follows [at paragraph 59]: “I would lay it down as a general principle that where it is possible to decide any case, civil or criminal, without reaching a constitutional issue, that is the course which should be followed.” (257) Similarly the U.S. Supreme Court has held that it would not decide a constitutional question which was properly before it, if there was also some other basis upon which the case could have been disposed of (Ashwander v. Tennessee Valley Authority, 297 U.S. 288, 347 (1936)). 26. In the premises, I take the view that this Petition ought to have been avoided altogether because revocation of Grant being a matter provided for in the Law of Succession Act, ought not to have been elevated into a constitutional issue as the petitioners purported to do herein. In this regard I agree entirely with Hon. Chacha, J. (as he then was) in Godfrey Paul Okutoyi & others v Habil Olaka & Another [2018] eKLR, that: 65. 27. It is time it became clear to both litigants and counsel that rights conferred by statute are not fundamental rights under the Bill of Rights and, therefore, a breach of such rights being a breach of an ordinary statute are redressed through a court of law in the manner allowed by that particular statute or in an ordinary suit as provided by procedure. It is not every failure to act in accordance with a statutory provision or where action is taken in breach of a statutory provision that should give rise to a Constitutional petition. A party should only file a constitutional petition for redress of a breach of the Constitution or denial, violation or infringement of, or threat to a right or fundamental freedom. Any other claim should be filed in the appropriate forum in the manner allowed by the applicable law and procedure.” In the result, it is my finding that this Petition raises no constitutional issue worth considering on the merits. The same is hereby struck out with no order as to costs. It is so ordered. DATED, SIGNED AND DELIVERED VIRTUALLY THIS 8TH DAY OF MAY 2026. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6686/eng@2026-05-08 6

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OLGA SEWE JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6686/eng@2026-05-08 7

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