[2022] KEHC 14003 (KLR)

In re Estate of Jonathan Wepukhulu (Deceased) (Succession Cause 71 of 1998) [2022] KEHC 14003 (KLR) (7 October 2022) (Judgment)

Neutral citation: [2022] KEHC 14003 (KLR)

Republic of Kenya

In the High Court at Bungoma

Succession Cause 71 of 1998

SN Riechi, J

October 7, 2022

IN THE MATTER OF THE ESTATE OF JONATHAN WEPUKHULU-DECEASED

Between

Japhetha Mukhongo Wepukhulu

1st Petitioner

Mary Nasipwondi Wepukhulu

2nd Petitioner

and

Philip Nasokho Wepukhulu

Protestor

Judgment

1. The deceased herein died on July 29, 1976 leaving behind one widow (now deceased), 7 sons two have died and 5 daughters. The petitioners together with the protestor applied for letters of administration intestate which was granted on October 7, 2020. The parties were then ordered to file summons for confirmation of grant which was duly filed by the 1st petitioner whose proposed mode of distribution, is as follows;Ndivisi/khalumuli/572- 17 acres1. Philip Nasokho 5 acres2. John Muhuyi 4 acres3. Joshua Juma 4 acres4. Ben Wafubwa-(deceased)-4 acres to be given to Hellen Biketi-widow.Ndivisi/khalumuli/777- 14 acres1. Japhetha M. Wepukhulu-acres2. Justus Wabwoba-4 acres3. Daniel Wanjala-deceased to be given to Sheila Wanjala-widowPlot No 70 Webuye Town1. Ben Wafubwa-deceased-partly constructed shop to be given to Hellen Biketi-widow2. 5 rooms.a.Japhetha Wepukhulu-2 roomsb.John Muhuyi- 1 roomc.Justus Wabwoba-2 rooms.

2. This mode of distribution is agreeable to; Mary Nasipwondi Wepukhulu, John Muhuyi, Justus Wabwoba, Sara Naliaka and Eunice Nasiebanda who executed the consent accompanying the summons.

3. Upon filing, the protestor filed his affidavit of protest deponing that the deceased had left behind the following properties;1. Ndivisi/khalumuli/5722. Ndivisi/khalumuli/7773. Plot Number 70 Webuye Township4. Unregistered plot within Webuye Municipality measuring 50 by 100 feet.5. Plot at Ngwelo Market measuring 50 by 100 feet.He therefore proposed the estate to be shared out as follows;Ndivisi/khalumuli/5721. Ben Wafubwa 4 acres2. John Muhuyi 4 acres3. Philip Nasokho 5 acres4. Joshua Juma 4 acresNdivisi/khalumuli/7771. Japhether Wepukhulu 6 acres2. Justus Wepukhulu 4 acres3. Daniel Wanjala 4 acresPlot 70 Webuye Township1. Ben wafubwa shop2. Philip wepukhulu 1 room3. John wepukhulu 1 room4. Joshua wepukhulu 1 room5. Justus wepukhulu 1 room6. Daniel wepukhulu 1 room.

4. He depones that the shop at plot number 70 was constructed by their deceased father and the 5 rooms were built by their deceased mother from the proceeds of sugar cane. He accuses the 1st petitioner of appropriating plots at Ngwelo Market and Dina junction to his own use without their consent and urged the court to compel the 1st petitioner to render account of the rental proceeds collected from the year 2004 so the same can be distributed.

5. Before the evidence was taken, parties narrowed down the issues for determination into the following;1. Whether plot at Dina market belonged to the deceased wholly or not.2. Whether the plot at Ngwelo market belongs solely to the 1st administrator (Japhetha) or the deceased estate.3. Whether the 2nd administrator (Philip) is entitled to a share of plot number 70 Webuye Township.

6. In light of the issues farmed by counsel as above, the court notes from the affidavits, the subsequent oral hearing and the submissions that the parties herein also wish the court to adjudicate on the issue of rent deposits held jointly by the firms of Sichangi & Co Advocates and that of Onyinkwa & Co Advocates pursuant to orders of the court issued on October 21, 2004.

7. A further perusal of the matter shows that the said firms have not rendered accounts of how much rent they are holding in the joint account as these accounts will assist the court make a final determination on the matter considering the fact the said rent ought to be distributed finally.

8. The court also notes that there is a dispute relating to whether the deceased indeed owned the plot at Ngwelo market (now Ndivisi/khalumuli/5451) and the plot at Dina market (now Ndivisi/khalumuli/4694). The record bears no evidence of the ownership status of the two properties save for title deeds annexed to the petitioner’s list of documents.

9. In light of the above the court issues the following directions.1. The firm of Sichangi & Co Advocates and that of Onyinkwa & Co Advocates are hereby directed to within 30 days from the date hereof jointly file in court and serve upon the parties an up-to date statement of rent so collected on account of the estate herein from the date of the order for distribution among the beneficiaries.2. The petitioner herein Japhetha Mukhongo Wephukulu files and serves an up-to date account of the rent collected so far from October 21, 2004 within 30 days from the date hereof.3. The parties herein to file an extract of the green card relating to parcel numbers Ndivisi/khalumuli/5451 and Ndivisi/khalumuli/4694. 4.The deputy registrar of this court to ensure the above said firm of advocates are duly served with this order.

DATED AT BUNGOMA THIS 7TH DAY OF OCTOBER, 2022. S.N. RIECHIJUDGE