[2017] KEHC 6351 (KLR)
The court found that it could not proceed with the distribution of the estate as proposed by the administrator because there was an unresolved allegation that a key parcel of land had already been transferred to the administrator before the conclusion of the proceedings, which would be contrary to the Law of...
Source-derived case information.
- Citation
- [2017] KEHC 6351 (KLR)
- Parties
- Applicant: Agneta Kalerwa Nyangweso; Respondent: Trufeya Onyeko Nyangweso; Respondent: Vitalis Kweyu; Respondent: Joseph Aseka Nyangweso
- Court
- High Court
- Court Station
- High Court at Kakamega
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 266 of 2008
- Procedural Posture
- Succession Cause / Ruling on Confirmation of Grant and Protest
- Outcome
- Application for confirmation of grant deferred; directions issued for investigation and oral hearing.
- Judges
- CM Njagi
- Legal Topics
- Succession of Estates, Confirmation of Grant, Distribution of Land, Beneficiary Rights
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Agneta Kalerwa Nyangweso
Applicant
Trufeya Onyeko Nyangweso
Respondent
Vitalis Kweyu
Respondent
Joseph Aseka Nyangweso
Respondent
Procedural Posture
Succession Cause / Ruling on Confirmation of Grant and Protest
Legal Issues
- 1 Whether the administrator's proposed mode of distribution of the deceased's estate is fair and lawful.
- 2 Whether the transfer of land Parcel No. East/Wanga/Mung’ang’a/86 to the administrator before conclusion of proceedings was legal.
- 3 Whether the court can determine the mode of distribution without oral or affidavit evidence from the parties.
Ratio Decidendi
The court found that it could not proceed with the distribution of the estate as proposed by the administrator because there was an unresolved allegation that a key parcel of land had already been transferred to the administrator before the conclusion of the proceedings, which would be contrary to the Law of Succession Act. Furthermore, the court held that it was procedurally improper to determine the mode of distribution based solely on written submissions and an agreement attached to submissions, without giving the parties an opportunity to present affidavit or oral evidence. The court emphasized that all beneficiaries must be given a fair hearing and that any disputed transfer of...
Court Disposition
Application for confirmation of grant deferred; directions issued for investigation and oral hearing.
Orders
- The allegation that land Parcel No. East/Wanga/Mung’ang’a/86 has changed hands to the administrator to be investigated and, if true, protestors to apply for cancellation of the title to revert to the deceased.
- Matter to proceed by way of oral evidence with protestors as plaintiffs and administrator as defendant.
Full Case Text
Judgment text and source record
26 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KAKAMEGA
SUCCESSION CAUSE NO.266 OF 2008
IN THE MATTER OF THE ESTATE OF NYANGWESO WESUSA SAKWA - DECEASED
BETWEEN
AGNETA KALERWANYANGWESO.....PETITIONERS/ADMINISTRATORS
AND
1. TRUTEYA ONYEKO NYANGWESO
2. VITALIS KWEYU
3. JOSEPH ASEKA NYANGWESO.......................................PROTESTORS
RULING
1. The petitioner/administrator herein, Agneta Kalerwa Nyangweso, had on an unstated date filed an application for confirmation of grant in which she proposed how the various parcels of land belonging to the deceased are to be distributed. A widow to the deceased, Trufeya Onyeko Nyangweso and two sons to the deceased, Vitalis Kweyu and Joseph Aseka Nyangweso, filed a protest on the mode of distribution proposed by the administrator and in addition filed their own proposal on the mode of distribution of the estate.
2. The advocates for the two parties, Mr Ombaye acting for the administrator and Mr Masheti acting for the protestors, then proposed that the matter proceeds by way of filing written submissions and that the court proceed to decide on the mode of distribution from the submissions and the modes of distribution proposed by the parties.
3. In his submissions, the advocate for the protestors stated, inter alia, that the petitioner/administrator has obtained title to land Parcel No. East/Wanga/Mung’ang’a/86, which is part of the deceased’s estate, before the conclusion of these proceedings, which act he said is illegal and he requested the court to nullify that registration and order that the title reverts to the deceased for distribution of the same to the beneficiaries.
4. In her proposal for mode of distribution, the petitioner/administrator has not proposed to give any benefit to her co-widow, Agneta Kalerwa. She has not given any reason for her proposal. The protestors on the other hand are proposing that Agneta Kalerwa be given one acre of land from land Parcel No. East/Wanga/Mung’ang’a/86.
5. Similarly the petitioner/administrator has not proposed to give any benefit to Joseph Aseka Nyangweso. There is no reason given for that. The protestors are proposing that the said Joseph Aseko Nyangweso be given land Parcel No. East/Wanga/Mung’ang’a/87.
6. In their submissions the advocates for the protestors attached an agreement from the family on the mode of distribution of the estate. The petitioner/administrator did not comment on the mode of distribution proposed in the said agreement.
7. In my view it is futile to proceed with the distribution of the estate if the petitioner/administrator has already transferred land Parcel No East/Wanga/Mung’ang’a/86 to herself. The protestors should first have sought for the cancellation of the title for it to revert to the name of the deceased before distribution of the estate is done.
8. The submissions by the advocates do not address the reasons for mode of distribution proposed by the opposing parties. This could only have been done by affidavit evidence or oral evidence in court. No affidavit evidence was attached to the application for confirmation of grant nor to the protest. More so, it was unprocedural for the advocates for the protestors to attach to their submissions an agreement on the mode of distribution that the opposite party did not have an opportunity to comment on. It is difficult for the court to decide on the mode of distribution of the deceased’s estate herein without hearing the parties themselves.
9. In view of the above I hereby make the following orders:-
(1) The allegation that land Parcel No. East/Wanga/Mung’ang’a/86 has changed hands to the petitioner/administrator to be investigated and if found to be true then the protestors to make an application for cancellation of the title for the title to revert to the name of the deceased before an application for confirmation of grant is considered.
(2) Matter then to proceed by way of oral evidence with the protestors acting as the plaintiffs and the petitioner/administrator as the defendant.
(3) Both parties to file and serve witness statements and any other documents they may wish to rely on in the case.
Dated, signed and delivered at Kakamega this 23rd day of March 2017.
J. NJAGI
JUDGE