[2015] KEHC 3267 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT KAKAMEGA

PROBATE AND ADMINISTRATION

SUCCESSION CAUSE NO. 42 OF 1982

IN THE MATTER OF: THE ESTATE OF YEFES WAKHU S/O MUKHOLA (Deceased)

BETWEEN

HARRISON MAKOKHA WAKHU........................... PETITIONER

VERSUS

JACKSON AMBETSA WAKHU

WYCLIFFE LUTTA

SHABAN MUKHOLA....................................OBJECTORS

AND

JOHN MUKHOLA WAKHU....................... INTERESTED PARTY

AND

JAMES AURA AMBETSA …............................. APPLICANT

RULING

The dispute herein relates to the estate of the late Yafes Wakhu who died on 19th July, 1982. The Objector is the deceased's grandchild. The Objector is claiming a portion of land out of plot number EAST WANGA/LUBINU/103. The objection proceeded by way of oral evidence. The Objector, JOSEPH MAENDE testified that his late father Harrison Makokha owned Plot number 602. The deceased herein was his grandfather. His grandfather had seven wives and two plots. One plot was given to some of the Objector's uncles, the other plot is E.WANGA/LUBINU/103. The Objector's late father, Harrison Makokha was entitled to inherit plot number 103. the Objector is claiming his father's share from his uncles. Plot 602 belonged to his father and was not part of Yafes's estate. He did succession cause number 532 of 2007 for his own late father and a grant was issued. His uncles who live on plot 103 had promised to give him a portion of land.

PW2: JAVAN ASHIRUMA AMBONGO testified that he knew the late Yafes Wakhu as he married his auntie, Rosepella Okot (1st wife of Yafes). It is his evidence that Plot Number 603 was bought by the Objector's father. The plot is at Lubinu. Plot 602 did not belong to Yafes. It was given to the Objector's father by his uncles from his mother's side. The plot had a court case before the African Court at Mumias involving Yafes and another claimant. However, Yafes was involved in the case as he was representing his son, Harrison, who was in school that time.

DW1: SHABAN MUKHOLA is Yafes's son and a brother to Harrison Makokha. It is his evidence that their late father had eleven (11) sons. He also had three plots. Two plots were at Isongo and one plot at Lubinu. Plot Number 103 is at Lubinu while plot number 602 is at Isongo. The second plot at Isongo was registered in the names of his other brothers during adjudication. According to him, Plot number 103 is for four sons namely himself, Jackson Ambetsa (deceased) Wycliffe Lutta and John Mukhola. The four have agreed to share the land and they live on the land. It is his evidence that their brother Harrison was given plot number 602. He gave it to the Objector as Harrison bought another land. Plot 602 had a court case been Ezekiah Okanga and their father in 1951. Their father won the case and gave the plot to Harrison. The Objector filed a succession cause number 532 of 2007 and swore an affidavit with his mother indicating that they are not claiming plot number 103.

DW2: JOHN MUKHOLA WAKHU is also the deceased's son. He concurs with the evidence of his brother DW1. It is his evidence that their late father gave the four sons respective shares out of plot number 103. DW3 PETER LUBANGA MAKOKHA is an elder brother to the Objector. He testified that their late father Harrison Makokha had his own land. Their father told them not to claim plot number 103. His brother, the Objector, was given plot number 602 measuring 10 acres. DW3 lives at Shitoti where their late father was living. His brother and their mother swore an affidavit indicating that they are not claiming plot number 103.

the issue for determination is whether Harrison Makokha was entitled to inherit plot number E.WANGA/LUBINU/103 and by extension whether the Objector should get part of that land in place of his late father. The evidence herein shows that plot number 103 was registered in the names of the deceased on 17th May, 1967. It is also established that the deceased had a dispute in relation to plot number 602 with a third party before the Mumias African Court. At that time in 1951 Harrison Makokha was still young. There is no evidence to prove that plot number 602 belonged to Harrison before it was given to him by his father. According to the Objector, his grandmother was called Rosepella Okoti who is PW2's auntie. He had 13 children. The question is, why out of the 13 children plot number 602 would be given to Harrison by his maternal uncles? There were other children who could have equally claimed the land. Why didn't those uncles defend the suit before the African Court since they had donated the land to their uncle Harrison? The only conclusion is that plot number 602 belonged to Yafes and he gave it to his son Harrison. This is where the Objector lives.

The Objector and his mother, Rose Okumu Opwora, swore an affidavit jointly on 26th May, 2010. This affidavit was in relation to this succession cause. Paragraphs 1, 3 and 4 of the affidavit state as follows:

“1. That we are the administrators of the estate of HARRISON MAKOKHA WAKHU hence competent to swear this affidavit.

That we wish to state that we do not wish to be associated with this cause or proceedings thereto since the Dependants and or heirs of Harrison Makokha Wakhu do not have any interest, whatsoever, in the estate of YAFES WAKHU MUKHOLA comprising of land parcel L. R. NO. E/WANGA LUNINU/103.

That we know of our knowledge that the deceased HARRISON MAKOKHA WAKHU left his estate comprising land parcels Nos. E/WANGA/LUBINU/1468, E/WANGA/ISONGO/602 and BUKHAYO/MUNDIKA/3442 among others which his dependent/heirs claim.”

Harrison Makokha on 12th September, 2005 the Objector and his mother were issued with a grant on 3rd December, 2007. The grant list of estate of Harrison as plot number E/WANGA/LUBINU/1468, E.WANGA/ISONGO/602 and BUKHAYO/MUNDIKA/3242. It is clear that the Objector and his mother knew very well that Harrison was not claiming plot number E.WANGA/LUBINU/103 although the plto was registered in his name as the administrator.

From the evidence herein, I do find that the Objector's claim for plot number 103 is an afterthought. He voluntarily swore an affidavit indicating that he was not claiming plot number 103. His own brother, DW3, told the court that their late father was not claiming plot number 103 and told them not to claim it. The Objector's claim is defeated by his own pleadings. The Objector's father had three wives and several children. None of the Objector's brothers or sisters are claiming the land.

In the end, I do find that the Objection by Joseph Maende Makokha lacks merit and is dismissed. Plot number E.WANGA/LUVINU/103 belonged to Yafes Wakhu and shall be inherited by the deceased's sons as follows:

E.WANGA/LUBINU/103

(a) John Mukhola

(b) Jackson Ambetsa

(c) Wycliffe Lutta To share equally

Shaban Mukhola

Since Jackson is deceased, the three brothers shall give the names of Jackson's wife or children to be included in the confirmed certificate of grant for the share of Jackson.

A confirmed certificate of grant to be issued to John, Wycliff and Shaban. Each party to meet his own costs.

Dated and signed this 25th day of February, 2015

Said J. Chitembwe

JUDGE

Delivered and countersigned on this 19th day of March 2015

Ruth Sitati

JUDGE