[2022] KEHC 14615 (KLR)
The court found that the objectors' claim to beneficial interest in the estate, based on adverse possession and customary trust, is a matter that can be addressed within the succession proceedings, particularly at the stage of distribution. The administrators did not dispute the possibility of the objectors having a...
Source-derived case information.
- Citation
- [2022] KEHC 14615 (KLR)
- Parties
- Applicant: George Shivechi Alusiola; Applicant: Evans Miheso Alusiola; Applicant: Joseph Mwanjilwa Manyoni; Respondent: Florence Atolwa Musindai; Respondent: Wilfridah Amudwayi Shivachi
- Court
- High Court
- Court Station
- High Court at Kakamega
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 1158 of 2014
- Procedural Posture
- Succession Cause / Ruling on Application to Stay Confirmation of Grant Pending Determination of Land Claim
- Outcome
- Application for stay of proceedings declined; matter referred to court-annexed mediation.
- Judges
- PJO Otieno
- Legal Topics
- Adverse Possession, Customary Trust, Confirmation of Grant, Stay of Proceedings
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
George Shivechi Alusiola
Applicant
Evans Miheso Alusiola
Applicant
Joseph Mwanjilwa Manyoni
Applicant
Florence Atolwa Musindai
Respondent
Wilfridah Amudwayi Shivachi
Respondent
Procedural Posture
Succession Cause / Ruling on Application to Stay Confirmation of Grant Pending Determination of Land Claim
Legal Issues
- 1 Whether proceedings for confirmation of grant and distribution of the estate should be stayed pending determination of the objectors' claim in the Environment and Land Court.
- 2 Whether the objectors have a beneficial interest in the estate by virtue of adverse possession and customary trust.
- 3 Whether mediation is an appropriate mechanism to resolve the dispute over the estate.
Ratio Decidendi
The court found that the objectors' claim to beneficial interest in the estate, based on adverse possession and customary trust, is a matter that can be addressed within the succession proceedings, particularly at the stage of distribution. The administrators did not dispute the possibility of the objectors having a share, suggesting that mediation could resolve the dispute. The court determined that referring the matter to court-annexed mediation would be more efficient and could potentially resolve both the succession and land claims without the need to stay the proceedings. Accordingly, the application to stay the confirmation of grant was not granted; instead, the matter was referred...
Court Disposition
Application for stay of proceedings declined; matter referred to court-annexed mediation.
Orders
- The matter is referred to court-annexed mediation.
- The mediator shall complete the process and file a report within forty five (45) days from the date of the ruling.
Full Case Text
Judgment text and source record
29 paragraphs
In re Estate of Joseph Manyoni Musindai (Deceased) (Succession Cause 1158 of 2014) [2022] KEHC 14615 (KLR) (1 November 2022) (Ruling)
Neutral citation: [2022] KEHC 14615 (KLR)
Republic of Kenya
In the High Court at Kakamega
Succession Cause 1158 of 2014
PJO Otieno, J
November 1, 2022
IN THE MATTER OF THE ESTATE OF JOSEPH MANYONI MUSINDAI (DECEASED
Between
George Shivechi Alusiola
1st Objector
Evans Miheso Alusiola
2nd Objector
Joseph Mwanjilwa Manyoni
3rd Objector
and
Florence Atolwa Musindai
1st Respondent
Wilfridah Amudwayi Shivachi
2nd Respondent
Ruling
1. Expressed to be premised upon section 4 (3) of the Law of Succession Act, the objectors’ application dated February 10, 2020 seek the orders that all proceedings towards the confirmation of grant and distribution of the estate be stayed pending the hearing and determination of their claim filed and being pursued in Environment and Land Court as No Kakamega ELC Cause No 117 of 2019 (OS).
2. In their suit the objectors have sued the legal representatives, the petitioners herein and are seeking the determination of whether the suit land has been transmitted pursuant to a succession cause was vested upon the objectors by operation of the doctrine of adverse possession and customary trust. The facts disclosed in the affidavit to ground the request in the application are set out in the affidavit sworn by George Shivachi Alusiola to be that; that parcel of land known as Kakamega/Savane/322 measuring 4. 2 Ha, initially belonged to one Johana Meso Musindali before it was transmitted and was registered in favour of the deceased herein and one Shem Alusiola Musindai by way of transmission after which the two were to share the property equally.
4. The said Johana Meso Musindali who is the father to the two objectors predeceased the deceased herein before the land was partitioned between the two but the objector continued to live upon and occupy their portion for which occupation and user they have sought to have adjudicated and recognized before the Environment and Land Court in ELC Cause No 117 of 2019 (OS). In essence the object and goal of the summons is to preserve the property by staling allenation by transmission pending the determination of the claim over title to land.
5. The summons was opposed by the administrators by the joint affidavit by both sworn on the July 5, 2021. In that affidavit the petitioners contended and termed the application misplaced in law and an abuse of the court process on the basis that the petition was initiated by the objectors with full facts of their beneficial interests and that the claim sought by the objectors is live and due for determination by this court when it addresses the pending application for confirmation of grant to the petitioners and that it remains the duty of the court to determine legal disputes in an expeditious, just and proportionate manner. It was concluded that the grounds advanced do not suffice to stay the proceedings and that the issues regarding the estate of Shem Alusiola Musindani ought not to be brought into the estate of Joseph Manyoni Musindani.
6. I read the petitioners not to grandstand that the objectors have no beneficial interest in the estate. I hear them to say at paragraph 5 and 6 of the replying affidavit that the share due to the objectors can in fact be dealt with at the point of distribution. My appreciation of that position taken by the petitioners is that this is a matter that can be settled by mediation. If it can be handled by mediation then there would be no need to stay the proceedings for such mediation may in effect resolve even the dispute before the Environment and Land Court.
7. For that reason it is directed that this matter be referred to court annexed mediation. Let the mediator complete the process and file a report within forty five (45) days from today.
8. Mention on December 6, 2022 to confirm progress made.
DATED, SIGNED AND DELIVERED IN OPEN COURT THIS 1ST DAY OF NOVEMBER, 2022. PATRICK J. O. OTIENOJUDGEIn the presence of:No appearance for the PetitionersNo appearance for the ObjectorsCourt Assistant: Polycap Mukabwa