[2023] KEHC 20590 (KLR)
The court found that the affidavit filed by Gladys Naliaka Chesambili did not comply with the orders of the judgment delivered on May 28, 2021, as it was not sworn by members of the first house, who are the relevant parties to confirm or renounce claims to South Kabras/Chesero/1193. The administrators failed to...
Source-derived case information.
- Citation
- [2023] KEHC 20590 (KLR)
- Parties
- Applicant: Gladys Naliaka Chesambili; Respondent: Members of the first house (Moses Munalo Chesamili, Afed Musee Chesambili, John Chesimbili, Alfred Tawai Chesambili, Benson Mukonyole Chesambili); Respondent: Festus Kanga Muhere
- Court
- High Court
- Court Station
- High Court at Kakamega
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 421 of 2014
- Procedural Posture
- Succession Cause / Post Judgment Compliance Ruling on Confirmation of Grant
- Outcome
- Application for confirmation of grant remains postponed; administrators given a final opportunity to comply within 30 days, failing which the application will stand dismissed.
- Judges
- WM Musyoka
- Legal Topics
- Succession, Confirmation of Grant, Estate Distribution, Compliance With Court Orders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Gladys Naliaka Chesambili
Applicant
Members of the first house (Moses Munalo Chesamili, Afed Musee Chesambili, John Chesimbili, Alfred Tawai Chesambili, Benson Mukonyole Chesambili)
Respondent
Festus Kanga Muhere
Respondent
Procedural Posture
Succession Cause / Post Judgment Compliance Ruling on Confirmation of Grant
Legal Issues
- 1 Whether the affidavit filed by Gladys Naliaka Chesambili complies with the court's orders regarding confirmation of grant and distribution of the estate.
- 2 Whether members of the first house have renounced their claim or consented to the distribution of South Kabras/Chesero/1193.
- 3 Whether Festus Kanga Muhere has substantiated his claim to a portion of the estate as previously directed by the court.
Ratio Decidendi
The court found that the affidavit filed by Gladys Naliaka Chesambili did not comply with the orders of the judgment delivered on May 28, 2021, as it was not sworn by members of the first house, who are the relevant parties to confirm or renounce claims to South Kabras/Chesero/1193. The administrators failed to serve the judgment or its extract on the first house members, nor did they obtain their consents or renunciations as required. Additionally, Festus Kanga Muhere did not file any documents to substantiate his claim as previously directed. The administrators also failed to account for certain assets (South Kabras/Chesero/2319 and 2387) in the estate. As a result, the application for...
Court Disposition
Application for confirmation of grant remains postponed; administrators given a final opportunity to comply within 30 days, failing which the application will stand dismissed.
Orders
- Administrators to serve the judgment or decree on all members of the first house within 30 days.
- Administrators to obtain and file affidavits, Form 37 consents, or renunciations from all survivors of the deceased, including members of the first house.
Full Case Text
Judgment text and source record
15 paragraphs
In re Estate of Chesimbili Sindani (Deceased) (Succession Cause 421 of 2014) [2023] KEHC 20590 (KLR) (21 July 2023) (Ruling)
Neutral citation: [2023] KEHC 20590 (KLR)
Republic of Kenya
In the High Court at Kakamega
Succession Cause 421 of 2014
WM Musyoka, J
July 21, 2023
Ruling
1. On May 28, 2021, I delivered a judgment where I confirmed the administrators, but postponed confirmation of the distribution proposed, so that an affidavit or Form 37 would confirm whether members of the first house had no claim to South Kabras/Chesero/1193. I had also allowed Festus Kanga Muhere to put in documents to show that he had bought 0. 201 hectares of South Kabras/Chesero/1193 from the deceased.
2. In purported compliance, an affidavit has been filed by Gladys Naliaka Chesambili, on September 15, 2022, sworn on July 28, 2022. The purport of the affidavit is that the first house had no claim to South Kabras/Chesero/1193. She has attached certificates of official searches, showing that South Kabras/Chesero/243 was subdivided and the subtitles given to John Mwanje Chesimbili, Alfred M. Chesembili, Chesimbili Sindani, Diocese of Kakamega and Ruth Nechesa Manyasa.
3. Does the affidavit of Gladys Naliaka Chesimbili comply with the ruling of May 28, 2021? It does not. I anticipated an affidavit sworn by members of the first house. Gladys Naliaka Chesimbili is not a member of the first house, as she comes from the second house. She cannot speak for the first house. She states that the first house constituted of 5 members, being Moses Munalo Chesamili, Afed Musee Chesambili, John Chesimbili, Alfred Tawai Chesambili and Benson Mukonyole Chesambili. From the documents attached, only John Mwanje Chesimbili and Alfred M. Chesembili benefited from South Kabras/Chesero/243. The fate of Moses Munalo Chesamili, Alfred Tawai Chesambili and Benson Mukonyole Chesambili is unknown, as to whether they benefited from the subdivision of South Kabras/Chesero/243, and they have not filed affidavits to state their position. Secondly, South Kabras/Chesero/2319 and 2387, from the certificates of searches, are still in the name of the deceased, yet the administrators did not list them as assets in the estate, and did not propose them for distribution. There is no evidence that the judgment of May 28, 2021, or an extract from it, was served on members of the first house, so that they could file the affidavits contemplated, neither did the administrators get them to sign a Form 37, nor to execute renunciations.
4. On the aspect of Festus Kanga Muhere, I have not seen any documents filed to support his claim.
5. As the administrators have not complied with the orders in the judgment of May 28, 2021, the application for confirmation of grant, dated April 26, 2016, remains postponed. I shall give the administrators a second chance, to have the judgment, or a decree extracted from it, served on all members of the first house so that they can comply with the orders made therein, or the administrators file a consent in Form 37 signed by all the survivors of the deceased, including members of the first house, or renunciations by members of the first house, and to serve Festus Kanga Muhere too so that he too complies with the orders in the judgment. South Kabras/Chesero/2319 and 2387 should also be proposed for distribution.
6. In the event there is default or non-compliance, in the next 30 days, the summons for confirmation of grant, dated April 26, 2016, shall stand dismissed. The matter shall be mentioned on a date to be given at the delivery of this ruling. It shall thereafter be disposed of by my successors at Kakamega. Orders accordingly.
DELIVERED, DATED AND SIGNED IN OPEN COURT AT KAKAMEGA ON THIS 21ST DAY OF JULY 2023WM MUSYOKAJUDGE