[2023] KEHC 25283 (KLR)

In re Estate of Saulo Kusimba Kunani alias Okusimba Okunani (Deceased) (Succession Cause 226 of 1992) [2023] KEHC 25283 (KLR) (10 November 2023) (Ruling)

Neutral citation: [2023] KEHC 25283 (KLR)

Republic of Kenya

In the High Court at Kakamega

Succession Cause 226 of 1992

PJO Otieno, J

November 10, 2023

IN THE MATTER OF THE ESTATE OF SAULO KUSIMBA KUNANI ALIAS OKUSIMBA OKUNANI (DECEASED)

Between

Joyce Mmbaisi

1st Petitioner

Joseph Ambunya Kusimba

2nd Petitioner

and

James Shibia Sande

Protestor

Ruling

1. Before this court is the protest by an affidavit of protest sworn on 3rd July, 2023 challenging the proposed rectification of the certificate of confirmation of grant as captured in the summons for amendment of certificate of confirmation of grant filed in court on the 13th February, 2022. According to that summons, six children namely; Joseph Ambunya, Julieta Nanjira Ambani, Francis Maunde, Patrick Kusimba Kunani, Mwaya Soul (deceased) and Sara Nechesa survived Saulo Kusimba Kunani (“Deceased”). The deceased estate comprised of properties known as Butsoso/Ingotse/255 and Kakamega/Chekalini/519 and the petitioner’s proposal was that the estate be distributed as below;Butsoso/Ingotse/255Joseph Ambunya Kusimba 3. 4 HAJulieta Nanjira Ambani 3. 4 HAFrancis Maunde 2. 7 HAKakamega/Chekalini/519Francis Maunde 0. 7 HAPatrick Kusimba Mukamani 3. 4 HAJoyceMmbaisi 3. 4 HA (Being the share of Muhaya Kuisimba (Deceased)Sarah Nechesa 3. 4HA

2. The gravamen of the protest is the protestor’s claim that he is entitled to 2 acres out of Butsoso/ingotse/255 on the basis that the late Samuel Okusimba exchanged with him. He asserts having given his piece of land known as Kakamega/Mautuma/1540, which he transferred to Fridah Ayuma Mukami, wife to Samuel Okusimba, now deceased, at the request of Samuel Okusimba, in exchange for the two acres he now claims. He claims that he settled on the 2 acres of land of Butsotso/Ingotse/255 in the year 2002 wherein he established a home and lives with his family to date.

3. Even though the parties present the dispute as one on fresh distribution, there is in the file a judgment by Justice Ruth N. Sitati delivered on 22nd July 2016 which determined the mode of distribution. That judgment stands undisturbed. The only thing that outstands is its implementation by issuance of a compliance certificate of confirmation of grant.

4. In that judgment, it was adjudged and held that, being subject to the demands of section 38 of the Law of Succession Act, the estate was due to be distributed equally among all the surviving children. It was also determined that the protester was entitled to 2 acres out of LR No. Ingotse/255.

5. For clarity purposes, the judgment reads: -“…Now, the issue in controversy touches on distribution of LR. Ingotse/255. From the evidence of the Petitioner each of those entitled to a share of the said parcel was to get 2 acres, including himself. According to the said evidence, the family of Rasto Ambunya who is father to the Applicant is also entitled to that share. According to paragraph 8 of the replying affidavit the deceased had demarcated Ingotse/255 so that apart from Muhaya Soul Okusimba who was given 1½ acres, the rest of the beneficiaries namely Rasto Ambunya, Reuben ambani, Mark Maunde, Samuel Okusimba were to get 2 acres each. There is evidence on the file showing that Samuel Okusimba’s 2 acres portion is now occupied by the family of James Shibiya Sande after James exchanged Mautuma/1540 with Samuel’s 2 acres at Butsotso. Both parties gave evidence that Samuel was buried on the Mautuma/1540 plot.…The Petitioners shall file fresh Summons for Confirmation of Grant in which each of the families of the deceased’s 6 sons shall be treated equally when sharing out the 21½ acres. The acreage takes account of the sale of 3 acres out of the Chekalini plot by the deceased prior to his death to one Jethro Ewanda.”

6. The Court reads and understands the judgment to limit the dispute to how the beneficiaries share Ingotse /255 and proceeds to say that the land had been demarcated by the deceased during his lifetime and that the protestor was in deed in occupation of the claimed portion. On the face of that judgment, the question whether or not the objector is entitled to the land stands res judicata and not available for re-litigation as sought by the administrator and other beneficiaries. The court must limit itself to the request for rectification of the grant issued on the 8th, November 2022 to make it conform to the judgment of the court. That judgment left the distribution of Chekalini done prior to it intact and this court must refrain from any disturbance in that regard.

7. Pursuant to the directions of the court dated 13. 7.2023 that a certificate of search on Ingotse/255 be availed, there was filed a certificate dated the same date. It discloses that the land measures 3. 84 hectares, equivalent 9. 488 acres.

8. That is the property the court has to distribute. In the judgment, it is directed that the protestor gets 2 acres out of Ingotse/255 and the balance thereof be shared equally between the six sons of the deceased who then get 1. 24 acres each.

9. It is therefore the determination by the court that the certificate of confirmation dated 8. 11. 2022 of grant be rectified as follows;-1. Kakamega/Chekalini/519Muhaya Saul Okusimba 9acreJoseph Munala Okusimba 5acres2. Kakamega/Ingotse/255James Shibia Sande 2acresJoseph Ambunya for himself and in trust forOther children of Rasto Ambunya (deceased) 1. 24acresJuliet Nanjira Ambani, for herself andin trust for her children with ReubenAmani (deceased) 1. 24acresFrancis kusimba, for himself and in trust forOther children of Mark Maunde (deceased) 1. 24acresPatrick kusimba, for himself and in trust of theother children of Samuel Kusimba (deceased) 1. 24acresJoyce Ambani, for herself and in trust for herchildren with Jacob Muhaya (deceased) 1. 24acresSara Nechesa Wekesa, for herself and in trustfor her children with Joseph Munala, deceased 1. 24 acres

10. Let the rectified certificate of confirmation issue forthwith so that the it is implemented within 90 days from today. Let all the beneficiaries named in the distribution list provide copies of their Identity Cards for purposes of preparation of the Rectified Certificate of Confirmation.

11. Mention on 8. 2.2024 to confirm conclusion of the administration and for closure of the file.

12. There shall be no orders as to costs.

DATED, SIGNED AND DELIVERED AT KAKAMEGA, THIS 10TH DAY OF NOVEMBER 2023. PATRICK J. O. OTIENOJUDGEIn the presence of:Administrators present in personProtestor present in personNo appearance for Nyikuli for the ProtestorCourt Assistant: Polycap Mukabwa