[2022] KEHC 14856 (KLR)

In re Estate of Peter Manda Opondo alias Manda Opondo (Deceased) (Succession Cause 654 of 2010) [2022] KEHC 14856 (KLR) (4 November 2022) (Ruling)

Neutral citation: [2022] KEHC 14856 (KLR)

Republic of Kenya

In the High Court at Kakamega

Succession Cause 654 of 2010

WM Musyoka, J

November 4, 2022

IN THE MATTER OF THE ESTATE OF PETER MANDA OPONDO alias MANDA OPONDO (DECEASED)

Ruling

1. This is the estate of Peter Manda Opondo, who died on 20th April 1970. The petition, filed herein on 23rd September 2010, indicates that he was survived by a widow, Anah Cheima Manda, and children, Lincoln Mwachi Manda, Gertrude Opondo Manda and Mary Chisaka Manda. He was said to have died possessed of South Wanga/ Buchifi/929, and that he had no liabilities. The petition was by his son, Lincoln Mwachi Manda.

2. A notice of objection was raised to that petition, by Margaret Rose Lecha, on grounds that she was a daughter of Alfred Mwachi, a brother of the deceased, who was entitled to ½ share of South Wanga/Buchifi/929; and cited a succession cause, Mumias DMCSC No. 36 of 1978, where an order had been allegedly made for equal sharing of the property herein between the deceased herein and her late father, Alfred Mwachi. She filed an answer to petition and cross-petition, both dated 12th January 2011, on an even date. In the affidavit, sworn on 12th January 2011, in support of the cross-petition, she attached a copy of a certificate of succession issued in the Mumias cause, dated 9th November 1978, showing that South Wanga/Buchifi/929 was to be shared equally between Peter Lecha Opondo and Alfred Mwachi Manda.

3. The objection was resolved by consent orders recorded on 27th September 2016, where Lincoln Mwachi Manda and Margaret Rose Lecha were appointed administrators of the estate, and Lincoln Mwachi Manda was directed to file for confirmation of grant within 30 days, with Margaret Rose Lecha getting liberty to file an affidavit of protest. I shall refer to Lincoln Mwachi Manda and Margaret Rose Lecha as the administrators. A grant was duly issued to them, dated 27th September 2016.

4. Lincoln Mwachi Manda then filed the summons dated 26th October 2016, for confirmation of the grant of 27th September 2016. He listed the survivors of the deceased as Annah Chilima Manda, widow; Lincoln Mwachi Manda, son; Gertrude Opondo Manda and Mary Chisaka Manda, daughters. He proposes that South Wanga/Buchifi/929 be devolved wholly upon himself. There is a consent on distribution in Form 37, under Rule 40(8) of the Probate and Administration Rules, signed only by Lincoln Mwachi Manda. I shall refer to the said Lincoln Mwachi Manda as the applicant.

5. Margaret Rose Lecha filed an affidavit of protest, on 3rd August 2017, sworn on 3rd August 2017. She states that her name was omitted from the list of beneficiaries. She avers that South Wanga/Buchifi/929 had been subjected to succession proceedings in Mumias DMCSC No. 36 of 1978, and had been shared out equally between Peter Lecha Opondo and Alfred Mwachi Manda, in 1978, as per certificate of succession, dated 9th November 1978. She avers that her father, Peter Lecha Opondo, died on 12th February 1999, and was buried on South Wanga/Buchifi/929. She states that she has been utilizing the 3. 56 acres that was due to Peter Lecha Opondo, and that there were clear boundaries on the ground. She avers that the property should be shared equally between her and Lincoln Mwachi Manda.

6. It would appear that the deceased person, the subject of these proceedings, is also the deceased person in Mumias DMCSC No. 36 of 1978. It would seem that the grant in Mumias DMCSC No. 36 of 1978 was confirmed, and a distribution approved, which is the subject of the certificate of confirmation dated 7th November 1978. I am, it would appear, being invited to give orders on the distribution of South Wanga/Buchifi/929, where other orders, made in another court, on the same property, are subsisting. This would amount to abuse of process. If the orders of 7th November 1978 subsist, then what the partiess ought to be doing now is to pursue transmission of South Wanga/Buchifi/929, in terms of the certificate of succession of 7th November 1978, in accordance with section 62 of the Land Registration Act, No. 3 of 2012.

7. It is trite law that two succession causes ought not be initiated in respect of the same estate or property. In In re estate of Daud Chege Jesan (Deceased) [2019] eKLR (Muchelule, J) it was stated that it was not lawful that in respect of one deceased person the beneficiaries should litigate over his estate in two different courts, and that that should be considered to be abuse of the process of court, and one of those causes ought to be dismissed. Similar sentiments were expressed in Jeremiah Mukangu Gioche vs. Samuel Kanyoro Ikua & 3 others[2020] eKLR (Kimondo, J).

8. That being the case, before I do anything else in this matter, and to obviate abuse of court process, I do hereby direct the Deputy Registrar to call for the file in Mumias DMCSC No. 36 of 1978, whether from the Mumias laws courts, or from the National Archives, to enable me confirm whether, indeed, South Wanga/Buchifi/929 had been distributed in Mumias DMCSC No. 36 of 1978, and if I find that to be the case, to give directions on the way forward, based on that information. If I find that that was not the case, I will proceed to consider the matter before me on its merits.

9. It is so ordered.

DELIVERED, DATED AND SIGNED IN OPEN COURT AT KAKAMEGA THIS 4THDAY OF NOVEMBER, 2022. W. MUSYOKAJUDGEMr. Erick Zalo, Court Assistant.Mr. Elung’ata, instructed by Elung’ata & Company, Advocates, for Lincoln Mwachi Manda.Mr. Getanda, instructed by. Onsando Getanda & Company, Advocates, for Margaret Rose Lecha