[2011] KEHC 2783 (KLR)
The court found that it would be unjust to proceed with the distribution of the estate without first authenticating whether land parcel Isukha/Murhanda/639 belonged to the deceased, as no party had provided evidence of ownership. Additionally, the court noted uncertainty regarding the entitlement of Maurice...
Source-derived case information.
- Citation
- [2011] KEHC 2783 (KLR)
- Parties
- Applicant: Hellen Inamani Mwakha; Respondent: Andrea Ashiribwa Muhatia; Respondent: Leonida Atamba Anyula
- Court
- High Court
- Court Station
- High Court at Kakamega
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 396 of 2009
- Procedural Posture
- Succession Cause / Ruling on Protest and Confirmation of Grant
- Outcome
- Oral evidence to be taken before any order as to distribution; no final distribution ordered.
- Legal Topics
- Intestate Succession, Distribution of Estate, Grant of Letters of Administration, Beneficiary Entitlement
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Hellen Inamani Mwakha
Applicant
Andrea Ashiribwa Muhatia
Respondent
Leonida Atamba Anyula
Respondent
Procedural Posture
Succession Cause / Ruling on Protest and Confirmation of Grant
Legal Issues
- 1 Whether land parcel Isukha/Murhanda/639 forms part of the deceased's estate for distribution.
- 2 Whether all beneficiaries, including Maurice Shivanda, are entitled to a share in the estate.
- 3 Whether the proposed mode of distribution is fair and in accordance with the law.
Ratio Decidendi
The court found that it would be unjust to proceed with the distribution of the estate without first authenticating whether land parcel Isukha/Murhanda/639 belonged to the deceased, as no party had provided evidence of ownership. Additionally, the court noted uncertainty regarding the entitlement of Maurice Shivanda, as he was omitted by the applicant but included by the objector. The court therefore determined that oral evidence must be taken to resolve these factual issues before any order of distribution can be made, ensuring that all assets and beneficiaries are properly considered in accordance with the law of intestate succession.
Court Disposition
Oral evidence to be taken before any order as to distribution; no final distribution ordered.
Orders
- Oral evidence shall be taken to determine whether Isukha/Murhanda/639 belongs to the deceased.
- Oral evidence shall be taken to clarify the entitlement of Maurice Shivanda to the estate.
Full Case Text
Judgment text and source record
52 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT KAKAMEGA
SUCCESSION CAUSE O. 396 OF 2009
IN THE MATTER OF THE ESTATE OF JAFETHA MUHANDIA KUNDUKVI ......................DECEASED
A N D
HELLEN INAMANI MWAKHA................................................................................................PETITIONER
V E R S U S
ANDREA ASHIRIBWA MUHATIA
LEONIDA ATAMBA ANYULA...............................................................................................OBJECTORS
R U L I N G
1. The deceased herein, Japhetha Muhatia Kundukuvi died intestate on 19. 5.2005 and left behind the following persons;
i)“LEONIDA ATAMBA ANYULA
ii)HELLEN INAMANI MUHATIA
iii)PERES KHALIOHI MUHATIA
iv)GLADYS CHIMWANI MUHATIA
v)MAURICE SHIVANDA MUHATIA
vi)MARGARET IMBITI MUHATIA
vii)MARY MASITSA MUHATIA
viii)ANDRE ASIBWA MUHATIA
ix)LEAH IMBITI MUHATIA”
2. He also left behind land parcel no. Isukha/Murhanda/1029 measuring 1. 9 hectares in size.
3. A grant of letters of administration was issued to Hellen Inamani Mwakha on 9. 12. 2009 and in an application to confirm the grant dated 19. 7.2010, she proposed to distribute the land as follows;
“ISUKHA/MURHANDA/1029
ANDREA SHILIBOHA MUHATIA - 1. 0 ACRES
LEONIDA ATAMBA ANYULA- 1. 0 ACRES
LEA IMBITI- ¾ ACRE
HELLEN INAMANI
PERUSKHALUYI
GLADYS CHIMWANI- 1 ¾ ACRES
MARY MASITSAJOINTLY
MARGARET IMBITI MUHATIA”
4. In an Affidavit of protest sworn on 6. 12. 2010, Andrew Asibwa Muhatia deponed that;
i)title no. Isukha/Murhanda/639 belonging to the deceased had been left out of the distribution schedule
ii)the deceased had more than one house and had prior to his death distributed the estate as follows;
1ST HOUSE – ISUKHA/MURHANDA/639
i)LEONIDA ATAMBA ANYULA
ii)HELLEN INAMANI MUHATIA
iii)PERES KHALIOHI MUHATIA
iv)GLADYS CHIMWANI MUHATIA
v)MAURICE SHIVANDA MUHATIA
vi)MARGARET IMBITI MUHATIA
vii)MARY MASITSA MUHATIA
2ND HOUSE – ISUKHA/MURHANDA/1039
i)ANDREW ASIBWA MUHATIA
ii)LEAH IMBITI MUHATIA”
5. Having considered all matters before me, it is not fair, as was ordered earlier, to distribute the estate without title no. 639 being authenticated as belonging to the deceased. I say so because no party, including the Protester, has brought evidence of that fact. Further, it is unclear whether Maurice Shivanda has any interest in the estate as Hellen Inamani left him out and Andrew Asibwa wants him included.
6. In the event, I will order that oral evidence be taken to address the above issues before any order as to distribution can be made.
7. Orders accordingly.
Delivered, dated and signed at Kakamega this 14th .day of April, 2010
ISAAC LENAOLA
J U D G E