[2015] KEHC 3218 (KLR)
The court found that Plot Number 438, measuring 5.5 acres, was the absolute property of the deceased and should be held by the petitioner, Mary Mukoya, for herself and in trust for her children. Regarding Plot Number 442, the court accepted the objectors' evidence that the deceased held the land in trust for his...
Source-derived case information.
- Citation
- [2015] KEHC 3218 (KLR)
- Parties
- Applicant: Mary Mukoya; Respondent: Benjamin Musa Mutubisi; Respondent: Simon Malala Mutubisi; Respondent: Charles Makokha Obutubisi; Respondent: Shadrack Masaba Mutubisi
- Court
- High Court
- Court Station
- High Court at Kakamega
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 615 of 2009
- Procedural Posture
- Succession Cause / Ruling on Distribution of Estate
- Outcome
- Estate distributed among petitioner and objectors as per court's orders; certificate of grant to issue accordingly.
- Judges
- SJ Chitembwe, AT Sitati
- Legal Topics
- Intestate Succession, Distribution of Estate, Trusts in Land, Registration of Land, Confirmation of Grant
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Mary Mukoya
Applicant
Benjamin Musa Mutubisi
Respondent
Simon Malala Mutubisi
Respondent
Charles Makokha Obutubisi
Respondent
Shadrack Masaba Mutubisi
Respondent
Procedural Posture
Succession Cause / Ruling on Distribution of Estate
Legal Issues
- 1 Whether the deceased held Plot Number 442 in trust for his brothers.
- 2 How the estate of the deceased should be distributed among the petitioner and objectors.
- 3 Whether the registration and subdivision of Plot Number 438 by the petitioner before confirmation of grant was lawful.
Ratio Decidendi
The court found that Plot Number 438, measuring 5.5 acres, was the absolute property of the deceased and should be held by the petitioner, Mary Mukoya, for herself and in trust for her children. Regarding Plot Number 442, the court accepted the objectors' evidence that the deceased held the land in trust for his brothers and that it should be distributed among them and the petitioner. The court rejected the petitioner's prior registration and subdivision of Plot 438 as unlawful since it occurred before the grant was confirmed. The estate was distributed as follows: Plot 438 to Mary Mukoya for herself and her children; Plot 442 to be shared among Mary Mukoya (2.5 acres), Benjamin Musa...
Court Disposition
Estate distributed among petitioner and objectors as per court's orders; certificate of grant to issue accordingly.
Orders
- Plot Number South Wanga/Buchifi/438 to be held by Mary Mukoya for herself and in trust for her children.
- Plot Number South Wanga/Buchifi/442 to be distributed as follows: Mary Mukoya (2.5 acres), Benjamin Musa Mutubisi (1.25 acres), Simon Malala Mutubisi (1 acre), Charles Makokha Obutubisi (1.25 acres), Shadrack Masaba Mutubisi (1 acre).
Full Case Text
Judgment text and source record
39 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT AT KAKAMEGA
SUCCESSION CAUSE NO. 615 OF 2009
IN THE MATTER OF: THE ESTATE OF SAMUEL MUKOYA BUTUBISI alias JUMA MUSA
RULING
The late Samuel Mukoya Bulubisi alias Juma Musa died on 27th August, 2008. His widow, Mary Mukoya filed this succession cause and was issued with a grant of letters of administration intestate on 8th May, 2013. The Objectors herein are brothers to the deceased.
The Petitioner's case is that she had six children with the deceased. The deceased left two plots namely South Wanga/Buchifi/438 and 442. The Objectors are her brothers-in-law. According to her, the Objectors were given their own respective plots by her father in-law. She lives in one plot but the Objectors are using the other plot. During the lifetime of her husband, the Objectors were not using the land. The Objectors started cultivating the land immediately her husband died.
On his part, Simon Malala Butubisi testified that the deceased was their elder brother. They are claiming Plot Number 442.
The deceased was given the land by their late father to hold in trust for them. The deceased was given 5 ½ acres. The other sons were given land as follows:
Simon and Shadrack 6 acres jointly on plot No. 972
Charles Makokha Plot 970 – 4. 6 acres
Benjamin Plot 471 – 4. 5 acres.
It is evident that they had agreed to divide the land and they met at the Assistant Chief's office but before the land was divided, the deceased passed on. Simon is proposing to give the Petitioner 1½ acres out of plot No. 442.
I have gone through the pleadings herein. I note that the Petitioner got herself registered as the proprietor of Plot Number South Wanga/Buchifi/438 on 8th July, 2013. The plot was later subdivided to plot numbers 2054 – 2057 on 13th September, 2011. By this time no grant had been issued. It is not clear to me how the land registry effected the registration of the Petitioner and the subsequent sub-divisions. The grant herein was issue don 8th May, 2013. The grant has not been confirmed. The registration of the Petitioner is therefore unlawful.
I have read the joint affidavit of Benjamin, Simon, Charles and Shadrack sworn on 14th February, 2013 as well as their supporting affidavit to the chamber summons dated 3rd May, 2010. I have also read the affidavit of Benjamin sworn on 14th December, 2009. The Petitioner did not file any affidavit.
From the evidence on record, the only issue is the distribution of the deceased's estate. It is clear to me that there is no dispute involving plot Number 438 measuring 5. 5 acres. Simon's evidence is that the deceased was given 5. 5 acres and this is the same acreage as plot number 438. I do find that Plot Numbers 438 is the absolute property of the deceased.
The dispute is over plot Number South Wanga/Buchifi/442 measuring seven (7) acres. The plot was registered in the names of the deceased on 21st April 1967. The Objectors maintain that the deceased was holding the land in trust for the other children. The deceased was the first born son. The Petitioner herein agrees that the deceased got the land from his father.
Given the evidence on record, I do find that the deceased was to share Plot Number 442 with his other brother. There are four brothers to the deceased. Int heir affidavit sworn on 14th February, 2013, the Objectors proposed to distribute Plot Number 442 as follows:
Benjamin Musa Mutubisi 1. 7acres
Simon Malala Mutubisi 1 acre
Charles Makokha Obutubisi 1. 8acres
Shadrack Masaba Mutubisi 1 acre
Simon testified that they are willing to give the Petitioner 1½ acres out of Plot Number 442. I will proceed and distribute Plot Number 442 as follows:
1. Mary Mukoya 2. 5acres
2. Benjamin Musa Mutubisi 1. 25acres
3. Simon Malala Mutubisi 1 acre
4. Charles Makokha Obutubisi 1. 25acres
5. Shadrack Masaba Mutubisi 1acre
The deceased's estate shall be distributed as follows:
1. Plot Number South Wanga/Buchifi/438
Mary Mukoyo to hold for herself and in trust for her children
2. Plot Number South Wanga/Buchifi/442
In the end, the deceased's estate shall be distributed as hereinabove. A confirmed Certificate of Grant shall be issued to the Petitioner in the above terms.
Dated signed this 9th day of January, 2015
Said J. Chitembwe
JUDGE
Dated, delivered and countersigned this ...12th day of March2015
Ruth Sitati
JUDGE