[2022] KEHC 14089 (KLR)

In re Estate of Augustine Khaemba Katani (Succession Cause 56 of 1999) [2022] KEHC 14089 (KLR) (18 October 2022) (Ruling)

Neutral citation: [2022] KEHC 14089 (KLR)

Republic of Kenya

In the High Court at Bungoma

Succession Cause 56 of 1999

DK Kemei, J

October 18, 2022

IN THE MATTER OF THE ESTATE OF: AUGUSTINE KHAEMBA KATANI

Between

George Khaemba Mumali

Applicant

and

Patrick Sikuku Khaemba

Respondent

Ruling

1. The application dated May 28, 2019 is premised under the provisions of rules 49 & 73 of the Probate and Administration Rules and other enabling provisions of law wherein the Applicant seeks the following orders:i.THAT the County Surveyor Bungoma does visit land parcel numbers 21673, 21674, 21675, 21672, 21677, 21678, 21679, 21680, 21681, 21682, 21683 and establish the following: -1)Beacons and boundaries for LR Nos 21673, 21674, 21675, 21676, 21677, 21678, 21679, 21680, 21681, 21682, 21683 based on the duly registered index map and the relevant mutation form and ascertain the actual acreage of all the beneficiaries of the estate.2)That a report be filled by the County Surveyor Bungoma within 14 days or any other duration that the Honourable court will direct the County Surveyor with respect to compliance as contained in prayer 1(a) above.ii.The officer commanding police station Bungoma to provide security during the resurvey exercise and ensure compliance of the above order of the court.iii.That costs of the exercise be shared equally amongst the beneficiaries of the estate.

2. The application is supported by the grounds on the face of the application and on the supporting affidavit made by the applicant on even date where he deponed inter alia’; that the previous administrator who is now deceased had carried out sub division of the estate in tandem with the grant of the certificate of confirmation of grant issued in the year 2003 but that the respondent herein together with persons to whom he had sold his share of land uprooted/defaced beacons and boundaries of parcels belonging to other beneficiaries; that the respondent has been intermeddling with the estate by selling haphazardly and failing to confine himself to his share; that the beneficiaries already have titles and are desirous to have their shares established on the ground; that the respondent in cahoots with purchasers have been violent towards the surveyor and hence the need for court orders to sanction the exercise; that several beneficiaries are in favour of the application as they have given their consents; that it is in the interest of justice that this court invokes its inherent powers so that the ends of justice can be met by granting the orders sought.

3. In response the respondent vide his replying affidavit sworn on July 26, 2022 averred inter alia; that the application is an abuse of the court process, bad in law and ought to be dismissed with costs; that the applicant had never approached him or any beneficiary to procure a surveyor to partake in the alleged exercise of the survey; that if the exercise takes place it may jeopardize other buyers who reside and utilize part of this land; that the subdivision conducted by the previous administrator is shrouded in mystery as no one can tell which land parcel numbers were allocated to the respondent and other beneficiaries or buyers; that the applicant has not indicated which land parcel belongs to which beneficiary and further has not involved him in securing the surveyor whose mutation forms he hasn’t signed; that allowing the application will cause war and hostility between the beneficiaries and the purchasers.

4. The applicant filed a supplementary affidavit sworn on August 20, 2022 where he deponed inter alia; that the respondent has been a stumbling block in the finalization of the administration of the estate of the deceased as he has not presented himself to the Land Registrar Bungoma and sign the mutation forms; that he has never interfered with the shares of the beneficiaries upon being appointed and administrator; that the respondent is using the excuse of buyers to frustrate the survey exercise so as to disinherit the beneficiaries and benefit the purchasers; that the matter has been in court for 33 years and hence litigation must come to an end.

5. Parties agreed to canvass the application by way of written submissions. It is only the respondent who duly complied.

6. Vide submissions dated August 23, 2022 and filed on August 25, 2022 the respondent submits that he has never destroyed any beacons and or boundaries as alleged. It was further submitted that the previous administrator had sub divided the estate into eight portions but the applicant has increased the same to eleven portions contrary to the initial certificate of confirmation of grant. It was also submitted that the applicant has not disclosed which land parcel belongs to which beneficiary none of whom have even signed /executed the mutation forms and further that the applicant did not engage the respondent or any beneficiary regarding the need for a surveyor to visit the lands and carry out the subdivision. It was finally submitted that the subdivision will cause a breach of peace in view of the fact that buyers have occupied portions sold to them by the applicant and some beneficiaries.

7. Vide its ruling delivered on July 7, 2022 this court affirmed the position of the applicant as the administrator of the estate of the deceased by dismissing the application filed for the revocation of the grant of letters of administration. The court further noted that the major concern at the moment is the final distribution of the estate of the deceased. This matter was filed way back in the year 1999 and it ought to be concluded. I find that no plausible reason has been advanced by the respondent on why the orders sought ought not to be granted. It has clearly emerged from the rival affidavits that both sides have sold land to purchasers who have taken possession thereof and that there is urgent need for the beneficiaries to know the exact size and position of their respective portions irrespective of the presence of alleged buyers. The applicant and respondent should not be allowed to continue checkmating each other as the estate should be distributed finally so that the beneficiaries get their entitlements under the estate. In any event, the respondent’s quest to have the grant having been dismissed by this court the only recourse for the respondent if aggrieved is to move to a higher court on appeal. It is noted that no such appeal has been preferred by the respondent and further, he has not even sought for review of the court’s orders dated July 7, 2022. That being the position, the respondent must desist from disturbing the apple cart and cooperate with the applicant so that the final leg of the distribution of the estate is concluded. By sending the surveyor to the ground, the sizes and exact locations of the parcels of land belonging to the beneficiaries will be established and thereafter the issue of titles are processed. I do not see any prejudice suffered by the respondent or beneficiaries if the order is granted since it is in their best interest that this old matter now spanning 33 years is brought to a closure. As this is a court sanctioned process, the parties herein as well as the beneficiaries and any third party on the ground are expected to comply and cooperate with the County Surveyor so that the exercise is seamless.

8. For those reasons, I find the application dated May 28, 2019 is merited and is hereby allowed as prayed. The matter is fixed for mention on the November 21, 2022 to confirm progress and for further orders.

DATED AND DELIVERED AT BUNGOMA THIS 18TH DAY OF OCTOBER, 2022. D.KEMEIJUDGEIn the presence of :Mwanga for Simiyu for ApplicantWanyonyi for Kundu for RespondentKizito Court Assistant