[2021] KEHC 8191 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT KISUMU

SUCCESSION CAUSE NO. 438 OF 2013

IN THE MATTER OF THE ESTATE OFTHE LATE VITALIS OMACH ONDELE

RAPHAEL OKENDO OSURO.......................................................................PETITIONER

VERSUS

BENTA JUMA NYAKAKO.........................................................................1ST OBJECTOR

LEUNIDA ACHIENG OMACH.................................................................2ND OBJECTOR

RULING

On 31st October 2017 Majanja J. delivered a Ruling on a Summons for Confirmation of Grant.

1. The learned Judge noted that the Estate of the late VITALICE OMACH ONDELEalias PETERLIS OMACHconsisted of four properties, being;

(a) KISUMU/KOLUNJE/898;

(b) KISUMU/KOLUNJE/1690;

(c) KISUMU/KOLUNJE/1691; and

(d) KISUMU/KOLUNJE/1929.

2. At the time, there were persons who were laying claim either as creditors or by virtue of adverse possession. The said claims were, however limited to Parcel No.KISUMU/KOLUNJE/898(“PLOT 898”). In the circumstances, the court held as follows;

“13. Since only property in dispute is

Plot 898, I will exclude it from

confirmation and issue a partial

confirmation for Plots 1690, 1691

and 1929 as prayed in the

application. All the proceedings

relating to Plot 898, in this case,

shall be stayed pending resolution

of the case filed before the

Environment and Land Court.”

3. On 21st September 2020 the Petitioner informed this court that the Environment and Land Court had granted its Judgment in the case of BENTER JUMA NYAKAKO & 4 OTHERS, ELC NO. 116 OF 2014 (Consolidated with ELC NO. 160 OF 2014 (O.S.).

4. It was the finding of the ELC Court that there was no validAgreement for sale of land between the deceased andJAMESOLWANDA NG’ONG’A. The purported agreement lacked theParticulars such as the identity of the land being sold; the size of the said parcel, and signatures of the parties.

5. It was the further finding of the Court that, because there was no valid agreement for sale between the deceased and JamesOlwanda, the 2ndDefendant in that suit could not pass on what he did not have or own. The learned Judge said;

“The 2nd defendant sold land to the 3rd,

4th and 5th defendants in 2012, when the

deceased had died, and he did not have

powers to dispose of land belonging to

the estate of the deceased without letters

of administration.”

6. It was the considered opinion of the learned Judge that, because the 2nd Defendant was not a beneficiary of the estate of the late VITALIS OMACH;

“……. he is a stranger to this estate and

therefore had no title to pass to the

defendants whom he purportedly sold

land to, registered in the name of the

deceased person.”

7. Ultimately, the Court ordered the Defendants to vacate the parcel of land No. KISUMU/KOLUNJE/898, failing which they would be evicted. The Court also ordered the Defendants to pay General Damages of Kshs 200,000/=.

8. Based upon that Judgment, the Petitioner herein asked this Court to include Plot 898 in the confirmed grant.

9. However, the Objectors drew the attention of the court to the fact that they had filed an application at the Court of Appeal, seeking extension of time to file an appeal.

10. On 21st September 2020, I noted that although there was noformal order for stay of execution of the Judgment, it would be in the interests of justice to maintain the status quo until the Court of Appeal had determined whether or not the Objectors would be granted leave to appeal out of time.

11. On 9th October 2020, the application by the Objectors wasdismissed by a single Judge of the Court of Appeal.

12. On 14th October 2020 the Objectors filed a Reference to a full bench.

13. The full bench of the Court of Appeal rendered its Ruling on 5th December 2020, dismissing the Objector’s application.

14. The Objectors have intimated that they are giving consideration to the possibility of moving to the Supreme Court. However, as Mr. Athung’a the learned advocate for the Objectors conceded, the fact that his clients were contemplating moving to theSupreme Court cannot be a reason to put this matter on hold.

15. On his part, Mr. Odeny the learned advocate for the Petitioner asked the court to order that Plot 898be distributed in line with the Orders made by Majanja J. on 31st October 2017.

16. The only matter that was holding up the distribution of Plot 898, has now been determined. Accordingly, Plot 898is part and parcel of the estate of the deceased herein.

17. I now order that L.R. NO. KISUMU/KOLUNJE/898bedistributed in accordance with the“Consent to the Mode ofDistribution of Estate”, which was filed in court on 16thJune2015. Accordingly, the said parcel of land shall be distributed asfollows;

“Equally to Benter Juma Nyakako,

Augustine Otieno Otieno, Bonface Omondi

Otieno, Albert Otumba Omach, Leunida

Achieng Omach and Jared Odhiambo Okumu.”

DATED, SIGNED AND DELIVERED AT KISUMU THIS 22ND DAY OF MARCH 2021

FRED A. OCHIENG

JUDGE