[2019] KEHC 10210 (KLR)
The court held that since the interested parties' claim that the deceased held South Sakwa/Kadera Lwala/449 in trust for his brothers directly affects the composition of the net estate, and because the High Court lacks jurisdiction to determine trust issues over land, the proceedings for confirmation of grant and...
Source-derived case information.
- Citation
- [2019] KEHC 10210 (KLR)
- Parties
- Applicant: Beatrice Wamuyu Aboge; Respondent: Orpha Adongo Aboge; Interested Party: George Odhiambo; Interested Party: Geoffrey Abich Owallo
- Court
- High Court
- Court Station
- High Court at Migori
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 405 of 2014
- Procedural Posture
- Succession Cause / Ruling on Preliminary Issue Before Confirmation of Grant
- Outcome
- Proceedings for confirmation of grant and distribution of the estate stayed pending determination of trust claim.
- Judges
- AC Mrima
- Legal Topics
- Confirmation of Grant, Trust of Land, Distribution of Estate
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Beatrice Wamuyu Aboge
Applicant
Orpha Adongo Aboge
Respondent
George Odhiambo
Interested Party
Geoffrey Abich Owallo
Interested Party
Procedural Posture
Succession Cause / Ruling on Preliminary Issue Before Confirmation of Grant
Legal Issues
- 1 Whether the High Court has jurisdiction to determine if the deceased held South Sakwa/Kadera Lwala/449 in trust for his brothers.
- 2 Whether confirmation of grant and distribution of the estate should proceed before the trust issue is resolved.
Ratio Decidendi
The court held that since the interested parties' claim that the deceased held South Sakwa/Kadera Lwala/449 in trust for his brothers directly affects the composition of the net estate, and because the High Court lacks jurisdiction to determine trust issues over land, the proceedings for confirmation of grant and distribution of the estate must be stayed. The parties are directed to pursue the trust claim before the Environment and Land Court. If the claim is not lodged within 60 days, the stay will lapse and the succession matter will proceed to judgment. This approach ensures that the estate is distributed only after all interests in the property are properly determined, preventing...
Court Disposition
Proceedings for confirmation of grant and distribution of the estate stayed pending determination of trust claim.
Orders
- All further proceedings towards confirmation of the grant and distribution of the estate are stayed pending determination of whether South Sakwa/Kadera Lwala/449 was held in trust for Lucas Abich Owallo and Tobias Evans Owalo.
- The trust claim must be lodged within 60 days; if not, the stay lapses and the matter will be fixed for judgment.
Full Case Text
Judgment text and source record
31 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT AT MIGORI
SUCCESSION CAUSE NO. 405 OF 2014
IN THE MATTER OF THE ESTATE OF GEORGE ABOGE OWALO..DECEASED
AND
IN THE MATTER OF AN APPLICTAION FOR CONFIRMATION OF THE GRANMT
BETWEEN
BEATRICE WAMUYU ABOGE.....................................APPLICANT
VERSUS
ORPHA ADONGO ABOGE........................................RESPONDENT
AND
GEORGE ODHIAMBO
GEOFFREY ABICH OWALLO.................INTERESTED PARTIES
RULING
1. This matter was instead scheduled for judgment on the confirmation of the Grant and distribution of the estate. However, towards the tail-end of the proceedings two interested parties namely George Odhiambo and Geoffrey Abich Owallo joined and raised an issue which this Court is of the considered view that it ought to be determined preliminarily.
2. The issue was whether the deceased herein, George Aboge Owallo, held the property known as South Sakwa/Kadera Lwala/449 in trust of his two brothers namely Lucas Abich Owallo and Tobias Evans Owalo who are also by now deceased.
3. Mr. Oguttu Counsel for the First Administratrix/Petitioner Orpha Adongo Aboge submitted at length amid reference to several decisions, and rightly so, that the issue of trust does not lie for determination before this Court but the Environment and Land Court. I have as well so held in various decisions.
4. Since confirmation of the Grant is premised on the net estate of the deceased available for distribution and given that the Interested Parties are claiming two-thirds of the property known as South Sakwa/Kadera Lwala/449then in the event they so succeed that may call for re-distribution of the then net estate. Currently, it seems that what constitutes the net estate of the deceased herein has not crystallized. It is for that reason that I opt to allow the parties to pursue the issue before the appropriate forum before this Court finally deals with the distribution of the net estate. I further so hold because there is no consensus on the rest of the properties and a wholesome approach will not only save this Court’s time but also the parties’ resources as well.
5. For those reasons the following orders do hereby issue: -
a) Subject to (b) herein, any further proceedings towards confirmation of the Grant and distribution of the estate are hereby stayed pending the determination on whether the property known as South Sakwa/Kadera Lwala/449 was held by the deceased in trust of his brothers; Lucas Abich Owallo and Tobias Evans Owalo.
b) The claim shall be lodged within 60 days of the date hereof and in default the stay in (a) above shall lapse and the matter shall be fixed for judgment.
Orders accordingly.
DELIVERED, DATED and SIGNED at MIGORI this 14th day of February 2019.
A. C. MRIMA
JUDGE
Ruling delivered in open Court and in the presence of: -
Mr. OguttuCounsel instructed by the firm of Messrs. Oguttu Mboya & Company Advocates for the Applicant/Petitioner.
Mr. KisiaCounsel instructed by the firm of Messrs. Edward Kisia & Company Advocates for the First Respondent.
Mr. OdingoCounsel instructed by the firm of Messrs. Odingo & Company Advocates for the Second Respondent.
Mr. Sam OnyangoCounsel instructed by the firm of Messrs. Sam Onyango & Company Advocates for the Interested Parties.
Evelyn Nyauke– Court Assistant