Wanjala-deceased Georgina Namarome v Naomi Sisan Ndombi & 1 other

a) Chepyakoris Farm b) Fararo Market Plot 4. Naomi Sisan Ndombi the petitioner herein was appointed the adminsitratrix and issued with a grant of letters of administration at Kakamega High Court where the cause was filed on 29/1/2009. 5. The record shows that later on Isaac Sisa was appointed coadministrator by consent on 4/3/2009. The two were then issued with a new grant on 8/4/2009. 6. The grant from the record was confirmed on 22/5/2012 and the widow, Naomi Sisan Ndombi was given the estate comprising Chepyakoris Farm 0.5Ha and Fafaro Market Plot 50x100feet to hold in trust of her children namely Georgina Namarome, Mercy Nasimiyu and Faith Namukhulu until they attain the majority age. The certificate of confirmation clearly stated that in capital letters. 7. One of the daughters namely Georgina Namarome, on 15/6/2020 moved the court with summons for revocation of grant dated 13/6/2020 asking the court to revoke the grant. The gist of her prayer supported by her affidavit sworn on 13/6/2020 was that the administrators who are the respondents herein betrayed them and trust bestowed upon them by disposing the estate to one Kafuna Mugodo. 8. She prays that the grant be revoked and estate does revert back to the deceased before distribution which she pleads should be done on equal basis. RULING-KTL HC SUCC.CAUSE NO.22(E007) OF 2020 PAGE 2 OF 7

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9. The matter was subsequently transferred to this court vide an order issued in Kakamega High Court on 29/6/2020. 10. The record shows that Justice Kimaru directed the summons for revocation of grant to proceed and the matter proceeded via viva voce evidence on 8/11/2022. 11. The applicant, Georgina Namarome stated that she later learnt that there were succession proceedings where her mother and her uncle the respondents herein were made administrators to hold the properties in trust for her and her siblings. That parcel No.Chepyakoris/173 was sold in 2011 to one Sammy Kafuna Mugodo without involving them. That her mother the 1st respondent never stepped in to care for them after the demise of their father (deceased herein). 12. She stated that her mother offered her a plot measuring 50x100feet but she declined. She insisted that she wanted a share where her father was buried. She stated that she attained the age of 18 in 2016 and disputes over the estate have been persisting through and through. 13. The 1st respondent, Naomi Sisan Ndombi opposed this application through a replying affidavit sworn on 1/10/2020. She denies obtaining the grant fraudulently and that the applicant is economical with the truth. 14. She avers that the applicant is a beneficiary to the estate and her share is intact. 15. She concedes selling the parcel No.Waitaluk/Mabonde Block 16/Chepyakoris/173 at Kshs.460,000/- but she depones RULING-KTL HC SUCC.CAUSE NO.22(E007) OF 2020 PAGE 3 OF 7

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that she used the proceeds to develop market plot at Fafaro Market to enhance its value. 16. In her oral evidence in court she stated that the deceased was her husband and that by the time she filed the succession her children including the applicant were minors with the applicant being 9 years old, Nancy 5 years and Faith 3 years old. That she disclosed their ages in court when she petitioned for letters of administration. 17. She justified the disposal of parcel at Kibagendi stating that her brothers in law wanted to grab it. 18. She stated that she used the proceeds of sale to develop the property in Fafaro and that the applicant has her share there. 19. She further conceded that the deceased was a clinical officer and that she received money from Public Trustee that she used the money to pay fees for her children. 20. She further conceded in cross-examination that she sold the property in Kibagendi before the grant was confirmed. That she sold it on 11/11/2011 yet the grant was confirmed in 2012. 21. This court has considered this application and the response made. The application pits the daughter and her mother on the other hand and the issues are fairly simple and straightforward. 22. 1st It is simple because the question posed is whether the respondent RULING-KTL HC SUCC.CAUSE NO.22(E007) OF 2020 could legally dispose parcel PAGE 4 OF 7

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No.Waitaluk/Mabonde Block 16/Chepyakoris/173 to one Kafuna Mudogo or any purchaser for that matter. 23. The provisions of Section 55 of Law of Succession Act clearly forbids disposal of any asset comprising the estate before confirmation of grant. It states; “No grant of representation, whether or not limited in its terms, shall confer power to distribute any capital assets constituting a net estate, or to make any division of property, unless and until the grant has been confirmed as provided by section 71.” 24. The provisions of Section 82(b) (ii) of Law of Succession Act further prohibits sale of immovable property by an administrator before confirmation of grant. The provisions states; “No immovable property shall be sold before confirmation of the grant.” 25. The administratrix, the 1st respondent admitted that she sold Plot No.173 at Kibagendi on 11/11/2011. The grant herein was confirmed on 22/5/2012 which clearly indicates that the purported sale was void ab initio. 26. The applicant of course should have named the purported purchaser named Kafuna Mudogo as a party to this proceedings, but for unknown reasons she did not make him a party despite being ably represented by counsel. That anomaly could potentially prolong this matter. RULING-KTL HC SUCC.CAUSE NO.22(E007) OF 2020 PAGE 5 OF 7

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27. However that notwithstanding this court finds that it cannot close its eyes on an obvious illegality perpetrated by the 1st respondent. 28. Besides the above infractions, the certificate of confirmation issued herein clearly indicated in capital letters that the administrators/respondents herein were to hold the estate in trust of the applicant herein and her siblings who were then minors. The grant did not confer the administrators rights to dispose any asset comprising the estate. Therefore transfer of Waitaluk/Mabonde Block 16/Chepyakoris/173 whichever way one looks at it, is simply tainted with illegality and irregularity. It cannot be sustained. There was no way the title could have legally passed from the deceased to a purchaser based on the grant issued herein because of the trust attached to the grant. 29. This court finds that the applicant has established and proved to the required standard that the respondents who were appointed adminstratrix and administrator respectively acted fraudulently and unlawfully by disposing part of the estate. There is sufficient ground to invoke the provisions of Section 76 of Law of Succession Act which I hereby do by revoking the grant issued on 8/4/2009 and confirmed on 22/5/2012. All consequential orders/transactions including the transfer of Waitaluk/Mabonde Block 16/Chepyakoris/173 are hereby reversed. The said title shall revert back to the deceased pending confirmation of grant. A fresh grant shall RULING-KTL HC SUCC.CAUSE NO.22(E007) OF 2020 PAGE 6 OF 7

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issue in the name of the applicant and 1 st respondent. The two are given liberty to jointly or individually apply for confirmation of grant with notice to the purchaser. I shall not make any order as to costs. A mention date shall be taken on delivery of this ruling. DELIVERED, DATED and SIGNED at KITALE this ……21ST day of ………………JULY……….……………., 2026. … HON JUSTICE R.K. LIMO KITALE HIGH COURT Ruling delivered in open court In the presence of Bikundo holding brief for Arunga for Objector Wanyama holding brief for Ingosi for Administrator Duke/Chemosop-court assistants RULING-KTL HC SUCC.CAUSE NO.22(E007) OF 2020 PAGE 7 OF 7

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