[2019] KEHC 3087 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KITALE

SUCCESSION CAUSE NO. 14 OF 2015

IN THE MATTER OF THE ESTATE OF THE LATE VIGINIA SANGALO - (DECEASED)

WILLIAM NYONGESA

LUNYELEKWE ...........................................................................................PETITIONER/APPLICANT

VERSES

KENNEDY WANJALA MABONGA..................................................................................RESPONDENT

WOMEN FOR WOMEN COMMUNITY BASED ORGANISATION...............INTERESTED PARTY

RULING

1. By their application dated 11th September, 2017 the Applicant and his late co-administrator applied for the confirmation of grant issued on 6th October, 2015. They supported their said chamber summons application by their joint affidavit sworn on the said date in which they distributed the estate namely Land Parcel No. 39 LIYAVO SETTLEMNT SCHEME to various beneficiaries. They came by way of certificate of urgency but the court did not certify the same urgent but ordered that a date be taken at the registry.

2. When the same came up for hearing on 30th October, 2017 Khisa Advocate represented the estate and the application was allowed as was prayed.

3. It then appears that one of the Administrators Samson Wanyama Kwanusu died on the 24th October, 2017. The Applicant has filed the application dated 26th November 2018 in which he seeks a review of the orders confirming the grant on 30th October, 2017.

4. The said application is equally praying that the suit Parcel of land left behind by the deceased be redistributed afresh to other parties. He argued that the grant was confirmed in his absence and that his Co-Petitioner had since passed on. He argued that the interested party had no rights over the estate since it was neither a beneficiary nor a creditor of the same.

5. The Respondent vide his replying affidavit dated 15th January, 2019 has deponed that the said application is misconceived in essence that it has introduced other parties who are not beneficiaries to the estate and that in any event it was the Applicant who applied for the confirmation of the said grant. He further stated that he was a witness to the purchase of the 2 acres by the interested party of the suit land.

6. The parties were then ordered to file their written submissions which the court has perused and which to save judicial time it shall not be reproduced. The court has equally perused the cited authorities on board.

7. The law on review is anchored under the provisions of Order 45 of the Civil Procedure Rules. The same inter alia states that for one to succeed it must be shown that there was error apparent on the face of record, discovery of a new important matter or evidence that was not within the courts or parties knowledge or any other sufficient cause.

8. The court has perused the record and save that his Co-Petitioner or Administrator passed on before the confirmation of grant, he did sign the application leading to the said confirmation. The same was filed by their counsel on record and was present when the same was presented in court. There was no objection and all the beneficiaries signed the relevant consents as per the procedural requirements.

9. The basic question indeed is if the Applicant was not satisfied with the said mode of distribution why did he sign the supporting affidavit? Why didn’t he advise his counsel on record otherwise?

10. I have also seen that he witnessed the selling of the 2 acres to the interested party as per the sale agreement dated 19th January, 2015 and he cannot turn around and say that it is intermeddling in the estate. If he is not comfortable with the same then he should not have conceded to the transmission to the interested party. At least by the time he signed the application for confirmation he was aware of the sale.

11. There is no evidence that at least his signature was forged or he signed the consent to distribute the estate under duress or at all.

12. In light of the above observation I do not find any reason to allow the application as the applicant has not brought himself under the armpit of Order 45 stated above. The really issue in my view is the 2 acres purchased by the interested party. It is too late in the day to advance the argument that it is an intermeddler in the estate. All the beneficiaries including the applicant are aware of its interest in the estate and they cannot wish it away.

13. It would be immoral for the Applicant to hide behind the cloak of the law to frustrate the interest of the Applicant for now yet it fully conceded to have the portion transmitted to it pursuant to the sale which he participated.

14. The upshot of all these is that the application dated 26th November, 2018 is hereby disallowed with no orders as to costs.

15. Secondly the Applicant William Festo Lunyelekwe is hereby appointed the sole Administrator of the deceased estate herein in view of the fact that his Co–Administrator Samson Wanyama Kwanusu has since died.

16. Thirdly, the said administrator should transfer by way of transmission respective portions to the beneficiaries as per the grant dated 30th October, 2017 which should now be amended to reflect the above changes.

17. Fourthly and without prejudice to the foregoing should the Applicant fail to sign the transmission instruments to the beneficiaries the Deputy Registrar of this court be at liberty to sign the same in line with the confirmed grant.

18. Orders accordingly.

Dated, signed and delivered at Kitale this 26th day of June 2019.

__________________

H K CHEMITEI

JUDGE

26/6/19

In the presence of:-

Nakitare for the Petitioner

Maina for the Interested party

Munialo for the Applciant

Court Assistant – Kirong

Ruling read in open court.