[2022] KEHC 16191 (KLR)

In re Estate of Abraham Alumasa Maravi (Deceased) (Succession Cause 275 of 2009) [2022] KEHC 16191 (KLR) (6 December 2022) (Judgment)

Neutral citation: [2022] KEHC 16191 (KLR)

Republic of Kenya

In the High Court at Kakamega

Succession Cause 275 of 2009

PJO Otieno, J

December 6, 2022

Between

Ephrahim Davida Alumasa

Petitioner

and

Nathan Shikuyenze

Protestor

Judgment

1. This is a determination on a protest initiated by the Affidavit of Protest sworn on March 22, 2019. By that Affidavit the Protestor is unequivocal that his claim to the estate property is founded on an agreement for sale of a portion of the estate assert known as Kakamega/lumakanda/349 measuring 2 acres and that the purchase price was used by the deceased to pay off a loan he owed to Agricultural Finance Corporation.

2. The said agreement was witnessed by two beneficiaries called Ephrahim Davida Alumasa And Benjamin Nderenji Alumasa yet the two failed to include him as a liability to the estate in the Cause. He asserts having taken over possession of the sold portion in 1991 and has since constructed on it and continues to undertake agricultural activities thereon. He accuses the Petitioner and siblings of a scheme to inherit the entire land including the portion he bought and urges the court to find that the two acres be given to him at the point of confirmation.

3. The protest was not conceded by the Petitioner who filed not only a Notice of Preliminary Objection but also a Replying Affidavit. In the Preliminary Objection the Petitioner takes the position that the court lacks jurisdiction to entertain the Protestor’s claim to land which should then be dismissed with costs.

4. In the Replying Affidavit the Petitioner points out that the document exhibited as an agreement for sale is illegible and incapable of being read and that he is not aware at all that the deceased sold any portion of the land to the Protestor. The Petitioner added that the advice from the Counsel that the Protestor lacks the standing to intervene in the matter of distribution of the estate and in the alternative that the documents manifest that the balance of purchase price of Kshs. 12,500 remain outstanding.

5. To the opposition, the Protestor filed no rebuttal. Even in the written submissions filed nothing is said of the challenge to jurisdiction. The Protestor was content to cite Section 86 of the Actas well as Rule 7 (1) of the Rulesto prescribe that debts of every description, enforceable at law, and ordered by or out of the estate, shall be paid before any legacy and that a Petitioner is bound to give a full inventory of assets and liabilities as at the date of death. The fact that the Protestor was in possession of the portion of land was underscored with the stress that the petitioner is failing to disclose the Protestor as a liability to the estate, violated the demands of Rule 7 (1) of the Rules.

6. For the Petitioner, the written submissions filed identified three issues for determination as to; whether there was a sale as alluded to by the Protestor and if such sale was in compliance with the law of contract on sale of land; whether the Protestor is entitled to an order for specific performance or by way of adverse possession and whether the court is vested with jurisdiction in the matter.

7. On the merits it is contended that the alleged sale cannot pass the test under Section 3 (3) as read with Section 38 (1) of the Land Act, 2012.

8. On the Court’s jurisdiction to entertain the matter it was submitted that being a claim to enforce a contract over land the court is divested of jurisdiction by dint of article 162 (2) of the Constitution.

9. On reliance of Rule 7 and Section 86 of the Act, the petitioner submits that these provisions do not make the Protestor a beneficiary for purposes of participating in the scheme of distribution of the estate just like it cannot confer jurisdiction upon the Court contrary to the Constitution.

Analysis and determination: 10. There being a challenge on jurisdiction, the Court is bound to first and beforehand determine whether it indeed is vested with jurisdiction in the matter.

11. The mandate of a succession Court is to ascertain the property of the estate, the beneficiaries and those beneficially entitle and how the net estate may be shared among the determined beneficiaries. In this matter the Protestor is not asserting the rights of a beneficiary or a beneficial interest.

12. The Actidentifies those entitled to share in the estate in part v Sections 35, 26, 28 & 39 to include; spouse(s), children, parents and siblings of the deceased and other relatives of the deceased upto the 6th degree. The protest has not brought himself within the meaning of a person beneficially entitled to share in the estate. Instead he assets the rights of a buyer of a portion of the estate from the deceased.

13. His claim is not one of inheritance but rather a right to enforce a contract for the sale of land. As presented, the claim by the Protestor presents a claim to use, occupation of and title to land. That is a jurisdiction the Constitution reserves for the Environment and Land Court and the High Court is unequivocally divested of jurisdiction.

14. Since jurisdiction is everything, wherever a court of law comes to the conclusion that it lacks jurisdiction, it has nothing else but to down it tools. Here the Court finds that the claim by the Protestor may be pursued before the appropriate court mandated to resolve disputes about use and occupation of and title to land because this court has no jurisdiction over the matter.

14. In conclusion therefore, the Court lacks jurisdiction and the Protest is therefore struck out. The Court makes no orders as to costs.

Dated, signed and delivered in open court this 6th day of December 2022. PATRICK J. O. OTIENOJUDGEIn the presence of:Mr. Edaki for the PetitionerMs. Olucheli holding brief for Udoto for the ProtestorCourt Assistant: Polycap