[2018] KEHC 5816 (KLR)
The court found that there was no credible evidence to support the claim that Okemwa Kiriago held Plot 1853 in trust for his brother Nyanchoka Kiriago. Testimony established that Nyanchoka had his own land (Plot 1296), lived and was buried there, and that the family had not intervened to support any claim to Plot...
Source-derived case information.
- Citation
- [2018] KEHC 5816 (KLR)
- Parties
- Respondent: Henry Nyakoe Nyanchoka; Applicant: Joel Omanga Okemwa; Applicant: Prestor Okemwa
- Court
- High Court
- Court Station
- High Court at Kisii
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 448 of 2011
- Procedural Posture
- Succession Cause / Ruling on Summons for Confirmation of Grant and Objection
- Outcome
- grant revoked and re-issued; property to be divided equally between deceased's sons
- Judges
- DAS Majanja
- Legal Topics
- Succession of Estates, Confirmation of Grant, Trusts in Land, Ancestral Land Disputes
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Henry Nyakoe Nyanchoka
Respondent
Joel Omanga Okemwa
Applicant
Prestor Okemwa
Applicant
Procedural Posture
Succession Cause / Ruling on Summons for Confirmation of Grant and Objection
Legal Issues
- 1 Whether the deceased held Plot 1853 in trust for his brother Nyanchoka Kiriago.
- 2 Whether Plot 1853 should be distributed to the sons of the deceased only or also to the family of Nyanchoka Kiriago.
- 3 Whether the grant should be confirmed as proposed by Henry Nyakoe Nyanchoka or as contested by the objectors.
Ratio Decidendi
The court found that there was no credible evidence to support the claim that Okemwa Kiriago held Plot 1853 in trust for his brother Nyanchoka Kiriago. Testimony established that Nyanchoka had his own land (Plot 1296), lived and was buried there, and that the family had not intervened to support any claim to Plot 1853 by Nyanchoka or his descendants. The court concluded that Plot 1853 was not ancestral land and was not subject to a trust in favour of Nyanchoka's family. Accordingly, the grant issued to Henry Nyakoe Nyanchoka, Joel Omanga Okemwa, and Prestor Okemwa was revoked, and a new grant was issued solely to the deceased's sons, with the property to be divided equally between them.
Court Disposition
grant revoked and re-issued; property to be divided equally between deceased's sons
Orders
- The grant issued to Henry Nyakoe Nyanchoka, Joel Omanga Okemwa and Prestor Okemwa is hereby revoked.
- The grant is re-issued to Joel Omanga Okemwa and Prestor Okemwa.
Full Case Text
Judgment text and source record
30 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KISII
SUCCESSION CAUSE NO. 448 OF 2011
IN THE MATTER OF THE ESTATE OF OKEMWA KIRIAGO (DECEASED)
BETWEEN
HENRY NYAKOE NYANCHOKA.............................PETITIONER/RESPONDENT
AND
JOEL OMANGA OKEMWA.......................................)
PRESTOR OKEMWA.................................................) OBJECTORS/APPLICANTS
RULING
1. This matter concerns the estate of OKEMWA KIRIAGO (“deceased”) of Nyataaro, South Mugirango, Kisii County who died on 18th August 1987. His estate comprises one property SOUTH MUGIRANGO/NYATAARO/1853 (“Plot 1853”).
It is not in dispute that he had two sons JOEL OMANGA OKEMWA and PRESTOR OKEMWA. After his death, Joel applied for grant of letters of administration at the Rongo Law Court (PM Succession Cause No. 172 of 2013)` . The grant was confirmed in his favour.
2. In the meantime, Henry Nyakoe Nyanchoka, a nephew of the deceased by being a son to his brother Nyanchoka Kiriago, had filed a petition in this court or had obtained a grant. In due course, the court revoked the grant issued by the Court in Rongo on 27th January 2016.
3. Subsequently, Henry Nyanchoka filed the summons dated 18th November 2016 seeking to confirm the grant issued to himself, Joel and Prestor in this matter. He proposed that Plot 1853 be divided amongst the sons of the deceased and Nyanchoka Kiriago.
4. That summons for confirmation was opposed and I heard viva voce testimony from Joel (PW 1), Christopher Okindo Omete (PW 2), David Omambia (PW 3) and James Nyabuto Miguna (PW 4) from the protestor’s side and Henry Nyakoe Nyanchoka (DW 1) in support of the summons.
5. It is common ground that Nyanchoka Kiriago and the deceased were brothers. It is also not in dispute that at the time of his death Okemwa was residing on Plot 1853 while Nyanchoka was residing with his family at SOUTH MUGIRANGO/BOIKANGA/1296 (“Plot 1296”). The issue in dispute is whether Okemwa was holding parcel 1853 in trust for his brother Nyanchoka.
6. I have heard the testimony of the parties and I am not convinced that the land was being held in trust for several reasons. First, Nyanchoka had his own land being Plot 1296 on which he was buried. The evidence from PW 1, PW 2 and DW 1 is that he lived there until his death. DW 1 also told the court that he and his brothers reside on the said property. If Nyanchoka had any claim to Plot 1853, the larger family intervened and supported his claim.
7. I am inclined to believe the testimony of PW 2 who was a relative to the deceased and a son to the grandfather. His testimony was indeed confirmed by DW 1. He gave a testimony of how the family were originally from Boikanga and some of the sons moved to where they have now settled Nyataaro. It is curious that no other relatives have made a claim to Plot 1853 apart from DW 1. DW 1 admitted that his father Nyanchoka did not purchase Plot 1296 hence I find that the said land was ancestral land from which he benefitted.
8. The totality of the evidence is that I find and hold that Plot 1853 is not ancestral land and that it was not held in trust. Accordingly, I order as follows:-
(1) The grant issued to Henry Nyakoe Nyanchoka, Joel Omanga Okemwa and Prestor Okemwa is hereby revoked.
(2) The grant is re-issued to Joel Omanga Okemwa and Prestor Okemwa.
(3) It is confirmed on terms that South Mugirango/Nyataaro/1853 shall be divided between Joel Omanga Okemwa and Prestor Okemwa in equal shares.
(4) There shall be no orders as to costs.
D.S MAJANJA
JUDGE
25/6/2018
[Ruling read and delivered in open Court]
D.S MAJANJA
JUDGE
25/6/2018