[2017] KEHC 9651 (KLR)
The court found that the only issue for determination was the distribution of the deceased's three parcels of land. It was established that the daughters had renounced their claims to the estate through affidavits. However, the court emphasized the need for official searches to confirm the actual acreage of two of...
Source-derived case information.
- Citation
- [2017] KEHC 9651 (KLR)
- Parties
- Respondent: Philip Muchesia; Applicant: Peter Shiakava Mavachi
- Court
- High Court
- Court Station
- High Court at Kakamega
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 169 of 2009
- Procedural Posture
- Succession Cause / Ruling on Distribution of Estate
- Outcome
- Interim orders issued; final distribution deferred pending land searches.
- Judges
- AT Sitati
- Legal Topics
- Intestate Succession, Distribution of Estate, Rights of Beneficiaries, Exclusion of Daughters
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Philip Muchesia
Respondent
Peter Shiakava Mavachi
Applicant
Procedural Posture
Succession Cause / Ruling on Distribution of Estate
Legal Issues
- 1 Whether the proposed distribution of the deceased's estate is fair and in accordance with the law.
- 2 Whether the daughters' renunciation of their claim is valid and binding.
- 3 Whether all beneficiaries, including the deceased's sons and the family of the late Gerald Muhanji, are entitled to a share of the estate.
Ratio Decidendi
The court found that the only issue for determination was the distribution of the deceased's three parcels of land. It was established that the daughters had renounced their claims to the estate through affidavits. However, the court emphasized the need for official searches to confirm the actual acreage of two of the parcels before making a final order on distribution. The court directed that searches be conducted and filed within two weeks to facilitate a fair and lawful distribution among the entitled beneficiaries, including the representation of the late Gerald Muhanji's share by his widow and son. The court did not make a final distribution order pending receipt of the searches, but...
Court Disposition
Interim orders issued; final distribution deferred pending land searches.
Orders
- Official searches for Isukha/Shinyalu/51 and Isukha/Shinyalu/1225 to be conducted and filed within two weeks.
- Final orders on distribution to be made after receipt of the searches.
Full Case Text
Judgment text and source record
65 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KAKAMEGA
FAMILY DIVISION
SUCCESSION CAUSE NO. 169 OF 2009
IN THE MATTER OF THE ESTATE OF THE LATE FRANCIS ATUBACHI LUKALE
BETWEEN
PHILIP MUCHESIA……….………………..PETITIONER/RESPONDENT
AND
PETER SHIAKAVA MAVACHI……...…………OBJECTOR/APPLICANT
R U L I N G
Introduction
1. The deceased herein died intestate on the 7. 5.2004. At the time of his death he had two wives and twelve children but by the time of filing this succession cause one of the wives had also died. The deceased left the following children surviving him;-
1) Wilimina Mmanuli (Daughter) 54 Years
2) Catherine Amola (Daughter) 47 Years
3) Gerald Muhanji (Son) 45 Years
4) Mercyline Atavachi (Daughter) 42 Years
5) Philip Muchesia (Son) 38 Years
6) Rose Atavachi (Daughter) 36 Years
7) Patrick Siema (Son) 34 Years
8) Mary Atavachi (Daughter) 31 Years
9) Sussy Amola (Daughter) 29 Years
10) Lonah Muhongo (Daughter) 27 Years
11) Peter Shakava (Son) 25 Years
12) George Lukale (Son) 24 Years
2. During his lifetime, the deceased owned three parcels of land namely
a) Isukha/Shinyalu/446 0. 6ha
b) Isukha/Shinyalu/51
c) Isukha/Shinyalu/1225
2. The grant of letters of Administration intestate was issued to Philip Muchesia Atavachi on the 29. 10. 2009. In the year 2010 one of the deceased’s sons Gerald Muhanji Atavachi passed away. The petitioner has now filed an application for confirmation of the grant but the issue of distribution is the problem. The petitioner’s proposal on distribution of LR. No. Kakamega/Shinyalu/446 is as follows;-
a) Maurice Lukavale – O.46 Acres
b) Philip Muchesia – 0. 16 Acres
c) Patrick Siema – 0. 16 Acres
d) Peter Shiakava - 0. 31 Acres
e) George Lukale 0. 31 Acres
f) Wilimina Mmanuli – Nil
g) Catherine Amola – Nil
h) Mercyline Atabachi- Nil
i) Rose Atabachi – Nil
j) Mary Atabachi – Nil
k) Sussy Atabachi – Nil
l) Lonah Atabachi – Nil
4. Four of the daughters of the deceased filed an undated affidavit claiming that they had no interest/claim on the deceased’s estate. There is again a supplementary affidavit by the petitioner dated 25. 05. 2016 by which the Petitioner distributed the deceased’s land LR No. Kakamega/Shinyalu/446 between himself Philip Muchesia – 0. 3 acres and Patrick Siema – 0. 3 acres.
5. This mode of sharing is objected to by Peter Shiakava through the affidavit of protest filed on the 10. 10. 2016 claiming that the petitioner had omitted him from the distribution of the deceased’s estate. He adds that the 2nd family has also been left out of the distribution including their deceased brother’s family Gerald Muhanji. His proposal is that the deceased’s estate be shared equally among the following people.
1) Philip Muchesia
2) Peter Shiakava Atavachi
3) Patrick Siema
4) George Lukale
5) Gerald Muhanji – deceased being represented by his widow – Margaret Adisa and his son Mourice Lukale.
6. The petitioner responded to the objector’s affidavit of protest by filing a “statement of defence” where he clearly states that the deceased had three parcels of land: Isukha/Shinyalu/446, 51 and 1225.
7. He also states that there is another succession cause No. 183/2009 which involves his grandfather. He proposes that Isukha/Shinyalu/51 which is big be shared between the two families, Isukha/Shinyalu/1225 be given to two brothers of the 2nd family that is George Lukale and Peter Shakava and the share of the late brother Gerald Muhanji be given to his elder son Maurice Aluvale to hold in trust for his brother and sisters.
Determination.
8. The only issue for determination in this cause is one of distribution of the deceased’s parcels of land. It has come out clearly from the affidavits that the deceased had three parcels of land as earlier stated that is;-
a) Isukha/Shinyalu/446
b) Isukha/Shinyalu/51
c) Isukha/Shinyalu/1225
9. it is also clear from the affidavits that the daughter’s to the deceased have indicated that they do not have a claim on the deceased land/property. However, before the order on distribution is made, it is important that a search be done to confirm the actual acreage of the other two parcels of land that is Isukha/Shinyalyu/521 and Isukha/Shinyalu/1225. The only official search available on the file is in respect of L.R Isukha/Shinyalu/446.
10. The searches should be filed within two (2) weeks from the date of this ruling to enable a quick disposal of this cause.
Orders accordingly
Ruling delivered dated and signed in open court at Kakamega this 30th day of November 2017
RUTH N. SITATI
JUDGE
In the presence of;-
Present in person……………………………Petitioner
Absent………………………………….……Objector
Polycap……………………………………….Court Assistant