[2021] KEHC 1949 (KLR)
The court found that the properties listed in the petition, specifically Kakamega/Moi’s Bridge/82 and Bungoma/Soysambu/6, were not registered in the name of the deceased at the time of his death. Kakamega/Moi’s Bridge/82 had been subdivided and ceased to exist as a title before the deceased died, and...
Source-derived case information.
- Citation
- [2021] KEHC 1949 (KLR)
- Parties
- Applicant: Kennedy Wanyonyi; Respondent: Joseph Wanambuko; Respondent: Jacob Mwima; Respondent: Dishon Wanyonyi
- Court
- High Court
- Court Station
- High Court at Bungoma
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 466 of 2009
- Procedural Posture
- Succession Cause / Ruling
- Outcome
- application dismissed
- Judges
- SN Riechi
- Legal Topics
- Succession, Estate Administration, Distribution of Property
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kennedy Wanyonyi
Applicant
Joseph Wanambuko
Respondent
Jacob Mwima
Respondent
Dishon Wanyonyi
Respondent
Procedural Posture
Succession Cause / Ruling
Legal Issues
- 1 Whether the properties listed in the petition form part of the deceased's estate for distribution.
- 2 Whether the court has jurisdiction to distribute property not registered in the name of the deceased at the time of death.
Ratio Decidendi
The court found that the properties listed in the petition, specifically Kakamega/Moi’s Bridge/82 and Bungoma/Soysambu/6, were not registered in the name of the deceased at the time of his death. Kakamega/Moi’s Bridge/82 had been subdivided and ceased to exist as a title before the deceased died, and Bungoma/Soysambu/6 was not registered in the deceased's name as of the date of death. As such, the court held that it lacked jurisdiction to distribute property that does not belong to the deceased's estate. The application was therefore dismissed, with the court directing that parties clarify the issues and file appropriate applications if necessary.
Court Disposition
application dismissed
Orders
- The instant application is dismissed.
- Each party to bear own costs.
Full Case Text
Judgment text and source record
30 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT BUNGOMA
SUCCESSION CAUSE NO. 466 OF 2009
IN THE MATTER OF THE ESTATE OF SIMEON WANYONYI KHWATENGE
KENNEDY WANYONYI................................................................................PETITIONER
VERSUS
JOSEPH WANAMBUKO..........................................................................1ST OBJECTOR
JACOB MWIMA......................................................................................2ND OBJECTOR
DISHON WANYONYI.............................................................................3RD OBJECTOR
RULING
While preparing to write this ruling and upon perusing the file, the court finds the following;
1. That the deceased Simeon Wanyonyi died on 31/5/2008.
2. That the deceased had 2 wives Mary Nafula and Judith Wakosa and their respective children.
3. That the deceased was the registered owner of land parcel No. Kakamega/Moi’s Bridge/82 measuring 11. 4 ha.
4. That he was issued with the title deed on 10/8/2007.
5. On 4/2/2008 the title deed was closed for sub-division and new numbers 996-998 issued.
6. That the title deed for Kakamega/Moi’s Bridge/82 was closed when the deceased was alive, a month before he died on 31/5/2008.
7. That land parcel Kakamega/Moi’s Bridge/82 does not therefore exist having been closed for sub division on 4/2/2008 while this cause was filed on 17/12/2009 and it cannot therefore be for the purpose of distributing non-existent property.
It is alleged by the petitioner by the petitioner that the deceased was the owner of Bungoma/Soysambu/6 measuring 8. 3 ha. A copy of the green card produced shows the following transactions;
30/7/96: JOSEPH W. MALABA-TRANSFER.
30/7/96: TITLE DEED ISSUED.
This means therefore that the deceased was not was not at the time of death on 31/5/2008, the registered owner of the parcel of land.
From the above observations, the parties need to clarify the issue in this petition and which the court ought to adjudicate on.
As presented in this petition, the court has no power to distribute unless it is shown it belongs to the deceased. If the issue is that the deceased had commenced the distribution when alive but the process had not been completed before he died, the parties should make that clear and file the appropriate application. As such the instant application is dismissed.
Each party to bear own costs.
It is so ordered.
DATED AT BUNGOMA THIS 16TH DAY OF NOVEMBER, 2021.
S. N. RIECHI
JUDGE