[2014] KEHC 2559 (KLR)
The court found that although there was a dispute regarding the subdivision and sale of part of the estate, the petitioner was willing to release the applicant's share. The court noted the lack of clarity on the subdivision process and the absence of a confirmed certificate of letters of administration. In the...
Source-derived case information.
- Citation
- [2014] KEHC 2559 (KLR)
- Parties
- Applicant: Amiani Aywa Amatalo; Respondent: James Oniango Aywa
- Court
- High Court
- Court Station
- High Court at Kakamega
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 458 of 2012
- Procedural Posture
- Succession Cause / Ruling on Application for Revocation of Grant and Distribution of Estate
- Outcome
- Estate distributed between applicant and respondent; application for revocation of grant effectively resolved by redistribution.
- Legal Topics
- Revocation of Grant, Distribution of Estate, Succession Disputes
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Amiani Aywa Amatalo
Applicant
James Oniango Aywa
Respondent
Procedural Posture
Succession Cause / Ruling on Application for Revocation of Grant and Distribution of Estate
Legal Issues
- 1 Whether the certificate of confirmed grant issued to the petitioner should be revoked.
- 2 How the estate of the deceased should be distributed among the beneficiaries.
Ratio Decidendi
The court found that although there was a dispute regarding the subdivision and sale of part of the estate, the petitioner was willing to release the applicant's share. The court noted the lack of clarity on the subdivision process and the absence of a confirmed certificate of letters of administration. In the interest of justice and to resolve the dispute, the court exercised its discretion to distribute the estate between the parties as per the available evidence and the parties' willingness to settle. The estate was distributed equally between the applicant and respondent, with specific plots allocated to each, and the parties were given liberty to file a consent if they preferred an...
Court Disposition
Estate distributed between applicant and respondent; application for revocation of grant effectively resolved by redistribution.
Orders
- W.BUNYORE/EBUSAKAMI/400 to be divided: 0.1 acres to Amiani Aywa Amatalo, 0.1 acres to James Oniango Aywa.
- W.BUNYORE/EBUSAKAMI/2929 to Amiani Aywa Amatalo.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KAKAMEGA
SUCCESSION CAUSE NO. 458 OF 2012
IN THE MATTER OF THE ESTATE OF AUYA AMATALO alias AWAY AMATALO (DECEASED)
AND
AMIANI AYWA AMATALO …………………….. APPLICANT
AND
JAMES ONIANGO AYWA …………………….. PETITIONER
R U L I N G
The objector filed his application dated 25. 5.2012 seeking to have the certificate of confirmed grant issued to the petitioner who is his brother revoked. The matter proceeded by way of oral evidence. The objector testified that the deceased was his father and the petitioner is his elder brother. The land was subdivided and he was given where the grave of his parents are. His brother sold a portion of the land to their brother in-law and divided the land into three portions. He has refused to give him his title deed. The cost of the succession was catered for by their brother in-law.
The petitioner JAMES ONIANGO AYWA testified that it is true that he sold a portion measuring 0. 04 hectares to their brother in-law CHARLES ETALE. He contends that he sold that portion from his share. There are two other plots namely BUNYORE/EBUSAKAMI/2928and2929. One of the plots is meant for the objector and he has no objection to release the plot to him. He is only requesting to be paid the cost incurred in the succession and the objector meets the cost of transferring the plot to him.
I have gone through the parties’ pleadings herein. The petitioner was issued with a grant by the court in Vihiga on the 11. 1.2009. In the pleadings it is indicated the deceased had two properties namely W.BUNYORE/EBUSAKAMI/400 and 18. Plot number 400 is 0. 2 acres and was registered in the deceased in 1969. Plot number 18 was subdivided into three portions and two portions are in the names of the petitioner. These are plot2928 measuring 0. 13 hectares and plot number2929measuring 0. 15 hectares. The third plot number 2930 is in the names of Charles Etale Otenda who got his title on 14. 2.2001. The plot is 0. 04 hectares. It is not clear how the subdivision was done as I was not able to see a confirmed certificate of letters of administration.
Since the petitioner is willing to give his brother his plot and since there is another plot number 400 I will distribute the deceased’s estate as follows:-
W.BUNYORE/EBUSAKAMI/400
AMIAMI AYWA AMATALO - 0. 1 acres
JAMES ONIANGO AYWA - - 0. 1 acres
W.BUNYORE/EBUSAKAMI/2929
AMIAMI AYWA AMATALO
W. BUNYORE/EBUSAKAMI/2928
JAMES ONIANGO AYWA
I do note from the pleadings that the objector had wanted to take the two plots that is 2928 and 2929 while his brother takes plot number 400. If the proposed arrangement is agreeable to the parties then they can file a consent to that effect. The deceased’s estate is therefore distributed as above and parties are at liberty to apply. There shall be no orders as to costs.
Delivered, dated and signed at Kakamega this 18th day of September 2014
SAID J. CHITEMBWE
J U D G E