[2017] KEHC 1886 (KLR)
The court found that the petitioner failed to disclose all beneficiaries and assets in the initial petition for grant of letters of administration, and that the deceased had organized his estate prior to death, including making inter vivos gifts and subdividing land for his grandson. The evidence, including Land...
Source-derived case information.
- Citation
- [2017] KEHC 1886 (KLR)
- Parties
- Applicant: George Wafula Makhanu; Respondent: Benson Wanjala Makhanu; Respondent: Augustine Wabwile Wafula
- Court
- High Court
- Court Station
- High Court at Bungoma
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 28 of 2005
- Procedural Posture
- Succession Cause / Judgment
- Outcome
- Grant revoked; fresh grant to issue to Benson Wanjala Makhanu and Augustine Wabwile Wafula; estate distributed as per court order.
- Judges
- A Ali-Aroni
- Legal Topics
- Grant of Letters of Administration, Revocation of Grant, Distribution of Estate, Gift Inter Vivos, Land Mutation Errors
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
George Wafula Makhanu
Applicant
Benson Wanjala Makhanu
Respondent
Augustine Wabwile Wafula
Respondent
Procedural Posture
Succession Cause / Judgment
Legal Issues
- 1 Whether the grant of letters of administration should be revoked due to non-disclosure of beneficiaries and lack of consent.
- 2 Whether certain properties should be included or omitted from the estate for distribution.
- 3 Whether the deceased had made inter vivos gifts and organized his estate prior to death.
Ratio Decidendi
The court found that the petitioner failed to disclose all beneficiaries and assets in the initial petition for grant of letters of administration, and that the deceased had organized his estate prior to death, including making inter vivos gifts and subdividing land for his grandson. The evidence, including Land Control Board consents and the parties' own admissions, established that certain properties were not available for distribution as part of the estate. The court held that the grant issued to the petitioner should be revoked and a fresh grant issued to the respondents. The estate was to be distributed in accordance with the deceased's intentions as evidenced by the prior...
Court Disposition
Grant revoked; fresh grant to issue to Benson Wanjala Makhanu and Augustine Wabwile Wafula; estate distributed as per court order.
Orders
- The grant issued to the petitioner is revoked; a fresh grant will issue in the names of Benson Wanjala Makhanu and Augustine Wabwile Wafula.
- L.R. No. W. Bukusu/S. Mateka/2568 is omitted from the list of assets for distribution.
Full Case Text
Judgment text and source record
53 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT BUNGOMA
SUCCESSION CAUSE NO.28 OF 2005
IN THE MATTER OF THE ESTATE OF ALEX MAKHANU WAMALWA …………(DECEASED)
AND
GEORGE WAFULA MAKHANU…………………………........…………………….PETITIONER
VERSUS
BENSON WANJALA MAKHANU……………………......…………………1ST RESPONDENT
AUGUSTINE WABWILE WAFULA…………………….........……………..2ND RESPONDENT
JUDGEMENT
1. The deceased herein Alex Makhanu Wamalwa died on the 26th of June, 2004 at Lumboka and was survived by 2 widows and several children.
2. The family appointed his eldest son George Wafula Makhanu to apply for grant of letters of administration in order to distribute his estate.
3. George Wafula moved this Court for grant of representation on 31st May 2005. In his Petition he did not reflect all beneficiaries of the estate and only gave his name as the only survivor. He listed 4 properties as assets namely;
i. L.R. No. W. Bukusu/S. Mateka/2907
ii. L.R. No. W. Bukusu/S. Mateka/1801
iii. L.R. No. W. Bukusu/S. Mateka/2961
iv. L.R. No. W. Bukusu/S. Mateka/2901
4. A grant was subsequently issued on the 12th of July, 2005
5. On the 28th of September 2005 the Objector’s herein Benson Wanjala Makhanu and Augustine Wabwile Wafula sought for revocation and amendment of the said grant on grounds that names of beneficiaries were left out and their consents were not obtained, further the Petitioner had also failed to disclose that one parcel being number 2569 had been sold to one Joseph M. Makokha.
6. According to the Court record nothing much was done after the objection was filed safe for requests for discussions. The application appears to have remained in abeyance. I will consider the same in this judgement alongside the objection towards distribution.
7. On the 30th of December, 2010 the Petitioner applied for confirmation of the grant and listed the assets for distribution as;
i. L.R. No. W. Bukusu/S. Mateka/2567
ii. L.R. No. W. Bukusu/S. Mateka/2568
iii. L.R. No. W. Bukusu/S. Mateka/2569
iv. L.R. No. W. Bukusu/S. Mateka/1801
v. L.R. No. W. Bukusu/S. Mateka/2960
vi. L.R. No. W. Bukusu/S. Mateka/2961
vii. L.R. No. W. Bukusu/S. Mateka/2962
8. He also proposed mode of distribution. It is his mode of distribution that prompted the objection by both his son Augustine Wabwile and his brother Benson Wanjala Makhanu.
9. Benson Makhanu objected to property L.R. No. W. Bukusu/S. Mateka/2568 being included in the list of assets of distribution as the same was gifted to him inter vivos and already in his name. Secondly that prior to his death the deceased was the registered owner of W. Bukusu/S. Mateka/2567 and had caused the same to be subdivided into two parcels 3592 and 3593 and had given one portion to the grandson Augustine. He contended that at mutation an error occurred as the mutation was registered against L.R. No. W. Bukusu/S. Mateka/2569 in error and by a Court Order issued by consent of the parties cancelling the mutation on L.R. No. Bukusu/S. Mateka/2569 thus cancelling the subdivision erroneous registered against it.
10. That their father the deceased had sold L.R. No. W. Busuku/S. Mateka/2569 to one Joseph Mamai Makokha (deceased).
11. The widow of Joseph Mamai Makokha, supported the assertion in (10) above and stated further that her late husband had sold the said property to one Jairus Nyongesa Makhino in 2007.
12. On his part the 2nd Objector Augustine Wabwile son of the Petitioner contends that his grandfather gifted him a portion of W. Bukusu/S. Mateka/2567 measuring 1. 0Ha. That his grandfather had obtained the Land Control Board caused mutation but an error occurred as the mutation was registered against L.R. No. Bukusu/S. Mateka/2569 as opposed to L.R. Bukusu/S. Mateka/2567. His mother had separated with his father and hence the gift inter vivos.
13. On the 8th of June the Parties entered a consent on in relation on all other parcels of land and the dispute now is between the Petitioner and 2nd Objector; a father and son as regards L.R. No. W. Bukusu/S. Mateka/2567
14. From the record and the consent entered by the Parties on 8th of June, 2017 the deceased had before his death distributed his Estate. The property in contention is what was meant to be given to the Petitioner and which the objector’s contend was divided between the Petitioner and his son the 2nd Objector.
15. The deceased appears to have been organized and having organized his estate before his demise. And since his eldest son had an issue with the 2nd Objector his grandson; he subdivided what was meant to go to the Petitioner so that his grandson had a portion of the land. There is proof of this as the deceased appeared before the Land Control Board, obtained consent for subdivision and he caused a mutation which parties agree was wrongly registered.
16. I do not find the Petitioner’s assertion that he is not aware of the minutes of the Land Control Board or the consent issued thereafter to be truthful.
Indeed at the hearing he declined to answer questions put to him related to the two. I also take note that he consented to the cancellation of erroneous registration of the mutation against L.R. No. W. Bukusu/S. Mateka/2569.
17. What comes out clearly is that the deceased did subdivide L.R. number W. Bukusu/W. Mateka/2567 into 2; 1. 0Ha and 1. 28Ha and he gave 1. 0Ha to his grandson what remains is 1. 28Ha and this is what the deceased left for the Petitioner.
18. Consequently therefore taking into account the consent order which I hereby adopt as the Order of this Court it is directed as follows
1. In order to bring this long outstanding matter to a closure the grant issued to Petitioner be and is hereby revoked in its place a fresh grant will issue in the names of Benson Wanjala Makhanu and Augustine Wabwile Wafula.
2. L.R. No. W. Bukusu/S. Mateka/2568 be omitted from the list of assets for distribution.
3. The Estate of the deceased be distributed forthwith as follows;
a. L.R. No. W. Bukusu/S. Mateka/2567George Wafula Makhanu Approximately 1. 28ha Augustine Wabwile Wafula Approximately 1. 0ha
b. L.R. No. W. Bukusu/S. Mateka/2569Jairus Nyongesa Makhini.
c. L.R. No. W. Bukusu/S. Mateka/2960Gilbert Makhanu
d. L.R. No. W. Bukusu/S. Mateka/2961Elias Mwangale Makhanu
e. L.R. No. W. Bukusu/S. Mateka/2962James Wabwire Wanyama
f.L.R. No. W. Bukusu/S. Mateka/1801Edwin Wabwile Makhanu and Kennedy Wafula Makhanu (minor) (share of the minor to be held in trust until he attains 18 years by Benson Wanjale Makhanu & Augustine Wabwile Wafula)
4. This being a family matter each party to meet his costs of the suit.
DATED and DEaLIVERED at BUNGOMA this 12th day of October, 2017
ALI-ARONI
JUDGE