[2014] KEHC 3766 (KLR)
The court found that the only issue before it was the removal of the life interest previously conferred on the widow, Lufina Ashimolela, who is now deceased. Since there was no dispute as to her death and the life interest had therefore expired, the court held that the property should be freed from the inhibition...
Source-derived case information.
- Citation
- [2014] KEHC 3766 (KLR)
- Parties
- Applicant: Zembeter Akala Samuel; Respondent: Festus M. Ashimolela; Respondent: Godwin A. Imbova
- Court
- High Court
- Court Station
- High Court at Kakamega
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 775 of 1994
- Procedural Posture
- Succession Cause / Ruling on Application to Remove Life Interest and Issue Fresh Grant
- Outcome
- application allowed
- Legal Topics
- Succession, Life Interest, Confirmation of Grant, Distribution of Estate
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Zembeter Akala Samuel
Applicant
Festus M. Ashimolela
Respondent
Godwin A. Imbova
Respondent
Procedural Posture
Succession Cause / Ruling on Application to Remove Life Interest and Issue Fresh Grant
Legal Issues
- 1 Whether the life interest conferred on the widow, Lufina Lucheche Ashimolela, should be removed following her death.
- 2 Whether the applicant is entitled to a fresh grant and removal of inhibition on the land asset.
Ratio Decidendi
The court found that the only issue before it was the removal of the life interest previously conferred on the widow, Lufina Ashimolela, who is now deceased. Since there was no dispute as to her death and the life interest had therefore expired, the court held that the property should be freed from the inhibition and the life interest removed. The objections raised by Godwin Imbova were found to be procedurally improper, as he had not filed a formal application or objection and was attempting to reopen distribution already determined by the court. The application was thus merited and allowed to the extent of removing the life interest and issuing a fresh grant. Costs were ordered in the...
Court Disposition
application allowed
Orders
- Life interest of Lufina Lucheche Ashimolela over Isukha/Shitochi/1493 is removed.
- Inhibition on Isukha/Shitochi/1493 is lifted to allow registration of beneficiaries as per confirmed grant.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KAKAMEGA
SUCCESSION CAUSE NO. 775 OF 1994
IN THE MATTER OF THE ESTATE OF ASHIMOLELA MADEGWA - (DECEASED)
BETWEEN
FESTUS M. ASHIMOLELA &
GODWIN A. IMBOVA ……………...... PETITIONERS/RESPONDENTS
VERSUS
ZEMBETER AKALA SAMUEL …................. OBJECTOR/APPLICANT
R U L I N G
Confirmation of Grant of Letters of administration herein was done on 28th December, 2009 and certificate of confirmation of grant issued. The land asset Isukha/Shitochi/1493 was to be shared equally between ZEMBETER AKALA SAMUEL and GODWIN ASHIMOLELA while LUFINA LUCHECHE ASHIMOLELA, the surviving spouse of the deceased, was to have a life interest. To protect the spouse, the court ordered that an inhibition against the said parcel of land be registered in order to prevent registration of any dealing in the said parcel.
The said LUFINA ASHIMOLELA died on 29th March 2000. Now, an application has been filed by Zembeter Akala Samuel on 26th June 2012 seeking the issuance of a fresh grant and removal of the life interest conferred on LUFINA ASHIMOLELA. It is stated in the application that LUFINA ASHIMOLELA died even before the certificate of confirmation of grant was registered in the Lands office.
This application has been opposed by the other beneficiary GODWIN IMBOVA. He stated that he now lived on the land. That he opposes equal distribution of the land because his grandfather – the owner of the estate had other children. In addition, somebody had already bought part of the land secretly through the applicant herein (ZEMBETER) who was his aunt married elsewhere.
I have considered the issues raised by both sides.
The request by the applicant is only to remove the life interest of LUFINA the widow of the deceased. LUFINA is dead. There is no contest on that. She was granted a life interest in the confirmed grant. In order that the property is freed from the life interest and inhibition, this court must make appropriate orders. GODWIN is opposing the application on account of other reasons. He is a grandson of the owner of the estate. The applicant is his aunt. He has neither filed a formal application, nor filed a formal objection. He merely raised issues in court on the hearing date.
In my view, his objections are misplaced. He is reopening distribution which has been determined already without making a formal application. That is not acceptable.
The present application is addressing consequential matters to the confirmed grant. A beneficiary with a life interest has died and there is need for this court to intervene, and issue appropriate orders to free the asset from the expired interest of the widow. Both parties herein benefited from the estate. I find merits in the application. I allow the application and grant prayers 1 and 2. Costs in the cause.
Dated and delivered at Kakamega this 15th day of May, 2014
George Dulu
J U D G E