[2017] KEHC 4403 (KLR)
The court found that the administrator (respondent) had failed to take any steps to assist the beneficiaries in actualizing their inheritance, despite the issuance of a certificate of confirmation of grant and clear allocation of shares. The respondent did not respond to the application or explain any difficulties...
Source-derived case information.
- Citation
- [2017] KEHC 4403 (KLR)
- Parties
- Applicant: Grace Namalwa Wekesa; Respondent: Francis Mang'oli Wekesa
- Court
- High Court
- Court Station
- High Court at Bungoma
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 287 of 2010
- Procedural Posture
- Succession Cause / Ruling on Application for Boundary Demarcation
- Outcome
- application allowed
- Legal Topics
- Succession Estate Distribution, Beneficiary Rights, Land Boundary Demarcation
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Grace Namalwa Wekesa
Applicant
Francis Mang'oli Wekesa
Respondent
Procedural Posture
Succession Cause / Ruling on Application for Boundary Demarcation
Legal Issues
- 1 Whether the court should order the District Surveyor to demarcate and point out boundaries for each beneficiary's share in the estate land parcels.
- 2 Whether security should be provided during the demarcation exercise to ensure peace among the parties.
Ratio Decidendi
The court found that the administrator (respondent) had failed to take any steps to assist the beneficiaries in actualizing their inheritance, despite the issuance of a certificate of confirmation of grant and clear allocation of shares. The respondent did not respond to the application or explain any difficulties faced. Given the ongoing animosity and inability of beneficiaries to identify their respective portions, the court determined that intervention was necessary to protect the beneficiaries' rights and ensure peaceful and effective distribution of the estate. The court therefore allowed the application, ordering the District Surveyor to demarcate the boundaries as per the confirmed...
Court Disposition
application allowed
Orders
- The District Surveyor is to visit Land Parcel No. E. BUKUSU/E. SANGALO/3538 – 3544 and demarcate the boundaries for each beneficiary's share as per the confirmed grant.
- The OCS Bungoma Police Station and the Assistant County Commissioner Kanduyi Division (or their officers) are to provide security and ensure peace during the demarcation exercise.
Full Case Text
Judgment text and source record
28 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT BUNGOMA
SUCCESSION CAUSE NO. 287 OF 2010
IN THE MATTER OF THE ESTATE OF
WEKESA SIMIYU KUMELO a.k.a
WEKESA SIMIYU……………………….............…………….DECEASED
AND
FRANCIS MANG’OLI WEKESA…………PETITIONER/RESPONDENT
VERSUS
GRACE NAMALWA WEKESA…………….BENEFICIARY/APPLICANT
RULING
GRACE NAMALWA WEKESA (the applicant) filed this application dated 20th March, 2017 seeking that this Court issues orders directing the District Surveyor to visit the Land Parcel No. E. BUKUSU/E. SANGALO/3538 – 3544 and point out, and demarcate on the ground the boundaries for each of the shares and portion due to the beneficiaries.
Further that the OCS BUNGOMA Police Station and the Assistant County Commission KANDUYI Division or officers delegated under their command be directed to ensure that security and peace is provided during the requested exercise.
The application is based on grounds that the petitioner/respondent FRANCIS MANGOLI WEKESA was issued with a certificate of confirmation of grant on 1st November, 2012, for estate of WEKESA SIMIYU KUMELO where each respective shares was provided to the beneficiaries. Although the respective share are known, it has been impossible to distinguish each share on the ground due to the animosity and threats brought about by the petitioner/respondent who now wants to have lion’s shares at the expense of others due to lack of boundary features on the ground.
The applicant sought intervention of the Land Registrar and Surveyor who tried to reconcile the parties in vain and in the supporting affidavit sworn by the applicant she deposes that since the year 2013, and due to reasons best known to the Respondent, it has been difficult for the beneficiaries to identify their exact boundaries on the ground to enable them prepare for any development and planting.
The respondent did not file any reply to the application. I have perused the records on the file while show that grant was enforced on 23rd November, 2012 by GIKONYO (Judge) and distribution of the property was as follows:-
1. FRANCIS MANGOLI WEKESA 3 acres
2. PAUL SIFUNA WEKESA 3 acres
3. GRACE NAMALWA WEKESA ½ acre
4. GERISHON AMAGOYE WEKESA 2 acres
5. GLADYS NAMUKURU WEKESA ½ acre
6. WYCLIFFE PEPELA MUKANDA 1 acre
7. PROTUS WAFULA CHEMWA 1 acre
8. BENEDICTO NYONGESA KHAEMBA - Already catered for.
The administrator has so far done nothing to help the other beneficiaries actualize their inheritance. He has not also filed any response explaining what difficulties he may be experiencing. I therefore allow the application on condition that the applicant will meet the full survey fees plus any incidental costs arising for the security to be given.
Delivered and dated this 12thday of July, 2017at Bungoma.
H.A. OMONDI
JUDGE.