[2019] KEHC 9274 (KLR)
The court found that at the time of the deceased's death, the only property forming part of his estate was Land Parcel No. Kisumu/Wathorego/877. The land in dispute, Kisumu/Wathorego/2662, had already been transferred and registered in the objector's name long after the deceased's death, and thus did not constitute...
Source-derived case information.
- Citation
- [2019] KEHC 9274 (KLR)
- Parties
- Respondent: Christine Akoth Opany; Applicant: Wilkister Kemuma Kaoka
- Court
- High Court
- Court Station
- High Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 77 of 2015
- Procedural Posture
- Succession Cause / Judgment
- Outcome
- objection allowed; costs to objector
- Judges
- TW Cherere
- Legal Topics
- Intestate Succession, Free Property Definition, Confirmation of Grant, Purchaser Interest in Estate
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Christine Akoth Opany
Respondent
Wilkister Kemuma Kaoka
Applicant
Procedural Posture
Succession Cause / Judgment
Legal Issues
- 1 Whether Land Parcel No. Kisumu/Wathorego/2662 formed part of the deceased's free property at the time of death.
- 2 Whether the petitioner was entitled to succeed to Land Parcel No. Kisumu/Wathorego/2662 under the Law of Succession Act.
- 3 Whether the objector, as a purchaser, had a valid claim to Land Parcel No. Kisumu/Wathorego/2662.
Ratio Decidendi
The court found that at the time of the deceased's death, the only property forming part of his estate was Land Parcel No. Kisumu/Wathorego/877. The land in dispute, Kisumu/Wathorego/2662, had already been transferred and registered in the objector's name long after the deceased's death, and thus did not constitute the deceased's free property for purposes of succession. The petitioner's attempt to include this parcel in the estate was therefore misplaced. The objector, having acquired title through purchase and registration, had a valid claim, and the objection to the confirmation of grant in respect of this parcel succeeded.
Court Disposition
objection allowed; costs to objector
Orders
- Objection to confirmation of grant in respect of Land Parcel No. Kisumu/Wathorego/2662 is allowed.
- Costs awarded to the objector.
Full Case Text
Judgment text and source record
41 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KISUMU
(CORAM: CHERERE-J)
SUCCESSION CAUSE NO. 77 OF 2015
IN THE MATTER OF THE ESTATE OF ROBERT OGAMBE WAKOYO (DECEASED)
BETWEEN
CHRISTINE AKOTH OPANY................PETITIONER/RESPONDENT
AND
WILKISTER KEMUMA KAOKA................OBJECTOR/APPLICANT
JUDGMENT
Introduction
1. ROBERT OGAMBE WAKOYO (hereinafter referred to asdeceased) died sometimes on 28th January, 1987. Deceased’s estate comprised of the following:
Land Parcel No.Kisumu/Wathorego/877
2. By an application dated 16th September, 2016 filed on 20th September, 2016, the petitioner applied for confirmation of the grant.
3. Subsequently, the respondent on 21st October, 2016 filed an affidavit in protest against confirmation of the grant in her capacity as a purchaser of a portion of deceased’s land.
4. The court directed that the dispute be determined by way of viva voce evidence.
Objector/Applicant’s Case
5. The applicant/objector stated that she bought a portion of the deceased’s Land Parcel No.Kisumu/Wathorego/877from one Juma A. Osungaon 5th May, 1989 and was on 26th September, 1996 issued with a title deed for her portion being Land Parcel No.Kisumu/Wathorego/2662. In support thereof, she tendered a sale agreement and extract of register as DEXH. 2 and 3 respectively.
Petitioner/Respondent’s Case
6. The petitioner stated that she was daughter in law and widow to deceased’s son Manasseh Olang whose siblings are Rose Akech, Peninah Achieng and Jenipher Ayot. Petitioner denied knowledge of any sale of deceased’s land to anyone and particularly the objector.
Analysis and Determination
7. I have considered the evidence on record and exhibits in respect thereof.
8. At the hearing of the objection, it became apparent that deceased’s land had long after his death been sub-divided into three portions i.e
a) Land Parcel No.Kisumu/Wathorego/2662which was registered in the objector’s name on 26th April, 1996
b) Land Parcel No.Kisumu/Wathorego/2663(Registered owner not disclosed)
c) Land Parcel No.Kisumu/Wathorego/2664(Registered owner not disclosed)
9. The deceased died intestate and his property that is subject to succession is in terms of Section 34 of the Law of Succession Act Cap 160 Laws of Kenya (hereinafter referred to as the Act)all his free property of which he has not made a will which is capable of taking effect.
10. Section 3 of the Actdefines "free property" to mean the property of which that person was legally competent freely to dispose during his lifetime, and in respect of which his interest has not been terminated by his death.
11. From the evidence on record, there is no doubt that the deceased’s "free property" at the time of his death was Land Parcel No.Kisumu/Wathorego/877and not Land Parcel No.Kisumu/Wathorego/2662to which this succession cause relates.
12. The petitioner’s claim is for her own benefit as widow to deceased’s son Manasseh Olang and his siblings Rose Akech, Peninah Achieng and Jenipher Ayot.
13. Whereas there is no doubt that the petitioner has a legitimate claim over deceased’s estate, the route she has taken to succeed the deceased is for the foregoing reasons plainly wrong. For avoidance of doubt, Land Parcel No.Kisumu/Wathorego/2662to which this succession cause relates was not deceased’s "free property" at the time of his death.
14. In the result, the objection succeeds with costs to the objector.
DELIVERED AND SIGNED AT KISUMU THIS 14th DAY OF February 2019
T. W. CHERERE
JUDGE
READ IN OPEN COURT IN THE PRESENCE OF-
Court Assistant - Felix
Petitioner/Respondent- N/A
For Petitioner/Respondent - N/A
Objector/Applicant - Mr. Anyul
For Objector/Applicant -Mr. Ogonda for Mr. Onsongo