[2021] KEHC 2027 (KLR)

Source-derived case information.

Citation: [2021] KEHC 2027 (KLR)
Parties: Applicant: Julius Lubisia Wasike; Applicant: Perita Nasimiyu Wasike; Applicant: Grace Naliaka Wasike; Respondent: John Wanjala Namunaba; Respondent: Joseph Nabukhwesi Munyefu; Respondent: Moses Wamalwa Mukhamari
Court: High Court
Court Station: High Court at Bungoma
Jurisdiction: Kenya
Case Number: Succession Cause 88 of 2006
Procedural Posture: Succession Cause / Judgment
Outcome: Objection dismissed; estate distributed as per petitioners' proposal; each party to bear own costs.
Judges: SN Riechi
Legal Topics: Succession of Estates, Distribution of Property, Confirmation of Grant, Revocation of Grant, Beneficiary Entitlement
Source Language: en

Family and Children Land and Property Succession of Estates Distribution of Property Confirmation of Grant Revocation of Grant Beneficiary Entitlement

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Parties

Julius Lubisia Wasike

Applicant

Perita Nasimiyu Wasike

Applicant

Grace Naliaka Wasike

Applicant

John Wanjala Namunaba

Respondent

Joseph Nabukhwesi Munyefu

Respondent

Moses Wamalwa Mukhamari

Respondent

Procedural Posture

Succession Cause / Judgment

Legal Issues

1 Whether the proposed mode of distribution by the petitioners is fair and includes all beneficiaries and assets of the deceased estate.
2 Whether the protestors are entitled to a share of the estate, specifically in relation to land parcels Ndivisi/Ndivisi/1630 and 1631.
3 Whether the 2nd protestor is entitled to Plot Number 5 Lugulu Market based on a handwritten agreement.

Ratio Decidendi

The court found that the petitioners' proposed mode of distribution was comprehensive, included all the deceased's assets, and considered all beneficiaries, including the protestors. The protestors' proposal was limited to only two parcels and excluded other beneficiaries and assets, which was not in line with the requirements of the Law of Succession Act. The court further held that the 2nd protestor's claim to Plot Number 5 Lugulu Market was unsupported by sufficient evidence, as the handwritten agreement did not specify the parcel and no corroborating documentation was provided. Consequently, the court adopted the petitioners' mode of distribution and dismissed the protestors'...

Court Disposition

Objection dismissed; estate distributed as per petitioners' proposal; each party to bear own costs.

Orders

The estate of Wasike Murunga Namunaba is distributed as per the petitioners' proposal outlined in the judgment.
Objections by the protestors are dismissed.

Full Case Text

Judgment text and source record

194 paragraphs

REPUBLIC OF KENYA

IN THE HIGH COURT

AT BUNGOMA

SUCCESSION CAUSE NO. 88 OF 2006

IN THE MATTER OF THE ESTATE OF WASIKE MURUNGA NAMUNABA-DECEASED

JULIUS LUBISIA WASIKE...........................................................................1ST PETITIONER

PERITA NASIMIYU WASIKE......................................................................2ND PETITIONER

GRACE NALIAKA WASIKE......................................................................3RD PETITIONER

VERSUS

JOHN WANJALA NAMUNABA.................................................................1ST PROTESTOR

JOSEPH NABUKHWESI MUNYEFU.......................................................2ND PROTESTOR

MOSES WAMALWA MUKHAMARI.........................................................3RD PROTESTOR

J U D G E M E N T

This is the prolonged litigaitonin relation to the estate of WASIKE NAMUNABA MURUNGA who died on 9. 1.2007 at the age of 72 yaers. After a protrached hearing of the objections on 13. 7.2017 M/s Omondi J. Issued grant of Letters of Administration Intestate to:

1. Julius Lubisa Wasike

2. Berita Nasimiyu Wasike

3. Grace Naliaka Wasike

4. John Wanjala Namunamba.

This order was made by consent of the parties and grant earlier issued on 27. 5.2008 was revoked. Parties were directed to file application for confirmation within 45 days from 13. 7.2017, when the order was made. The grant was signed by Aroni J on 3. 10. 2017.

Julius Lubisa Wasike on behalf of the Petitioners filled Affidavit in support of confirmation and in Para 5 of the affidavit proposed distribution as follows:

1. LAND PARCEL NO. NDIVISI/MIHUU/2

(a) GRACE NALIAKA WASIKE xxxxxx

1. RICHARD MAKHETI

2. CHARLRES WEKESA

3. THOMAS NYONGESA

4. PATRICK NAMUNAVA

5. BEN LUSWETI

6. ISAAC WEKESA

7. ALICE NANJALA

8. ELIZABETH MATING’I

9. MARY NASIMIYU

10. RABECCA MUTONYE

11. CATHERINE KHALAKAYI

12. MIRIAM SIKHAYALWA

13. NELIMA WASIKE

2. PLOT NO. 6. LUGULU MARKET

(a) GRACE NALIAKA WASIKE xxxxxx

1. RICHARD MAKHETI

2. CHARLES WEKESA

3. THOMAS NYONGESA

4. PATRICK NAMUNAVA

5. BEN LUSWETI

6. ISAAC WEKESA

7. ALICE NANJALA

8. ELIZABETH MATING’I

9. MARY NASIMIYU

10. RABECCA MUTONYE

11. CATHERINE KHALAKAYI

12. MIRIAM SIKHAYALWA

13. NELIMA WASIKE

3. NDIVISI/MIHUU/20

(a) HENRY SIMIYU MUSIELE

4. LAND PARCEL NO. NDIVISI/NDIVISI/600

(a) PERITA NASIMIYU WASIKE xxxxxx

1. JULIUS LUBISIA

2. ELIUD WANGILA

5. PLOT NO. 5 LUGULU MARKET

(a) PERITA NASIMIYU WASIKE xxxxxx

1. JULIUS LUBISIA

2. ELIUD WANGILA

6. LAND PARCEL NO. NDIVISI/NDIVISI/1631

1. GRACE NALIAKA WASIKE xxxxxx 2acres.

2. RICHARD MAKHETI

3. CHARLES WEKESA

4. THOMAS NYONGESA

5. PATRICK NAMUNAVA

6. BEN LUSWETI

7. ISAAC WEKESA

8. ALICE NANJALA

9. ELIZABETH MATING’I

10. MARY NASIMIYU

11. RABECCA MUTONYE

12. CATHERINE KHALAKAYI

13. MIRIAM SIKHAYALWA

14. NELIMA WASIKE

(b) HENRY SIMIYU MUSIELE xxxxxx 0. 5 ACRES

1. JULIUS LUBISIA

2. ELIUD WANGILA

(d) JOSEPH MAKETI MUSIELE xxxxxx 1. 5 acres

(e) JAMIN SIMIYU WASIKE 1 acre to

(f) RENSON MAKHETI WASIKE xxxxxx equally

7. LAND PARCEL NO. NDIVISI/NDIVISI/1630

a) JOHN WANJALA NAMUNABA

b) JOTHAM WANYAMA NAMUNABA

c) NICHOLAS JUMA NAMUNABA

For the 3rd Petitioner on 11. 10. 2017 John Wanjala Namukaba filed an affidavit of protest to the confirmation and proposal for distribution. In paragraph 7 of his affidavit he depones:

Para 7:That therefore the 1st, 2nd and 3rd petitioners are son and widows/wives of the deceased herein.

Para 10: That upon demise of the deceased herein he had the following properties among them registered in his names.

a) Land reference number Ndivisi/Mihuu/2

b) Land reference number Ndivisi/Mihuu/20

c) Land reference number Ndivisi/Ndivisi/600

d) Land reference number Ndivisi/Ndivisi/1631 and

e) Land reference number Ndivisi/Ndivisi/1630 created out of the old title comprised in land reference Ndivisi/ndivisi/602.

f) Plot number 5 on Lugulu Market

g) Ndivisi/Ndivisi/593

h) Bokoli/Kituni/352

Annexed and marked as JWN1 is form P&A 5 which was filed by the 1st, 2nd and 3rd petitioners.

Para 11:That my two brothers and I were to benefit from land parcel number Ndivisi/Ndivisi/602 which was fraudulently subdivided and registered in the names of the deceased herein by a fraudulent grant hat has now been revoked in land parcel number Ndivisi/ Ndivisi/1631 and 16 30.

Para12: That we do not have any interest in the other parcels as our interest only exists in land reference number Ndivisi/Ndivisi/602 vis avis 1630 and 1631.

Para 13: That since the deceased herein and his father’s interest has been catered for in terms of five difference parcels comprised in title number Ndivisi/Ndivisi/600,Ndivisi/Ndivisi/593, Ndivisi/Mihuu/2, Ndivisi/Mihuu/20 and Bokoli/Kituni/352 given to him by our late father. His family is entitled to the said parcels and they may share the same in the manner they deem fit and just and consider the inters of all other liabilities if any.

Para14:That the suggestion or proposal by the 1st, 2nd and 3rd petitioners that we are only supposed to only share land parcel number Ndivisi/Ndivisi/1630 so that they remain with land parcel number Ndivisi/Ndivisi/1631 is acceptable.

Para 15:That there is no sufficient reason advanced in court as why the family of our brother and by extensions the decease person’s family members who include the petitioners herein should get the lions share or a junk of our father’s share at our detriment and disadvantage yet our father had even given him more than 7 acres we are to get.

Para 16:That it is therefore my humble proposal that this honourable court exercises it’s discretion and nullify or cancel all title deeds illegally created by the deceased herein or the 1st, 2nd and 3rd Petitioner’s comprised in title number Ndivisi/ndivisi/1630 and 1631 or any succeeding number so that they revert back to the old title comprised in Ndivisi/Ndivisi/602 or alternatively the said new numbers be registered in our names and share it to me and my brothers as follows:

(a) John Wanjala Namunaba - 7 acres

(b) Nicholas Juma Namunaba - 7 acres

TOTAL – 21 ACRES

He therefore proposed distribution as follows:

1. JOHN WANJALA NAMUNABA

(uncle to the deceased herein) to get 7 acres

ID NO. xxxxxx

2. NICHOLAS JUMA NAMUNABA

(uncle to the deceased herein) to get 7 acres.

ID NO. xxxxx

3. TEBLA KHALIMESI WANYAMA

(uncle to the deceased herein) to get 7 acres

To hold in trust of herself and the children of the late (JOTHAM WANYAMA NAMUNABA (DECAED) ID NO. xxxxxx

I have carefully considered the objection and the protested proposal on mode of distribution. I note from protester proposal he is only distributing parcel No. 1630 and 1631 and not the whole estate of deceased. He is also distribute among 3 beneficiaries only. I have considered the Petitioner’s proposal which I find includes all the property of the deceased and all the beneficiaries.

On the second issue whether the 2nd protestor is entitled to Plot Number 5 Lugulu Market, having perused the application, the 2nd protestor’s claim based on a hand written agreement dated 6th October, 1972. In the said agreement, the parcel number is not indicated. The seller therein is the deceased Wasike Murunga.

There is no documentation in the file on this parcel. That could explain the various descriptions of the parcel. The petitioners describe it as Plot number 6 Lugulu Market while the 2nd protestor refers to it as Plot Number 5.

In his evidence in court, the 2nd protestor stated that the persons who witnessed the execution of the agreement and when payment was being made were long dead.

In the absence of evidence to support this fact, the court is unable to find in his favour.

I therefore distribute the estate as follows:

1. LAND PARCEL NO. NDIVISI/MIHUU/2

(b) GRACE NALIAKA WASIKE xxxxxx

1. RICHARD MAKHETI

2. CHARLRES WEKESA

3. THOMAS NYONGESA

4. PATRICK NAMUNAVA

5. BEN LUSWETI

6. ISAAC WEKESA

7. ALICE NANJALA

8. ELIZABETH MATING’I

9. MARY NASIMIYU

10. RABECCA MUTONYE

11. CATHERINE KHALAKAYI

12. MIRIAM SIKHAYALWA

13. NELIMA WASIKE

2. PLOT NO. 6. LUGULU MARKET

(b) GRACE NALIAKA WASIKE xxxxxx

1. RICHARD MAKHETI

2. CHARLES WEKESA

3. THOMAS NYONGESA

4. PATRICK NAMUNAVA

5. BEN LUSWETI

6. ISAAC WEKESA

7. ALICE NANJALA

8. ELIZABETH MATING’I

9. MARY NASIMIYU

10. RABECCA MUTONYE

11. CATHERINE KHALAKAYI

12. MIRIAM SIKHAYALWA

13. NELIMA WASIKE

4. NDIVISI/MIHUU/20

(b) HENRY SIMIYU MUSIELE

5. LAND PARCEL NO. NDIVISI/NDIVISI/600

(b) PERITA NASIMIYU WASIKE xxxxxx

1. JULIUS LUBISIA

2. ELIUD WANGILA

6. PLOT NO. 5 LUGULU MARKET

1. JULIUS LUBISIA

2. ELIUD WANGILA

7. LAND PARCEL NO. NDIVISI/NDIVISI/1631

GRACE NALIAKA WASIKE xxxxxx 2acres.

1. RICHARD MAKHETI

2. CHARLES WEKESA

3. THOMAS NYONGESA

4. PATRICK NAMUNAVA

5. BEN LUSWETI

6. ISAAC WEKESA

7. ALICE NANJALA

8. ELIZABETH MATING’I

9. MARY NASIMIYU

10. RABECCA MUTONYE

11. CATHERINE KHALAKAYI

12. MIRIAM SIKHAYALWA

13. NELIMA WASIKE

3. HENRY SIMIYU MUSIELE xxxxxx 0. 5 ACRES

1. JULIUS LUBISIA

2. ELIUD WANGILA

(d) JOSEPH MAKETI MUSIELE xxxxxx 1. 5 acres

(e) JAMIN SIMIYU WASIKE 1 acre to

(f) RENSON MAKHETI WASIKE xxxxxx equally

14. LAND PARCEL NO. NDIVISI/NDIVISI/1630

d) JOHN WANJALA NAMUNABA

e) JOTHAM WANYAMA NAMUNABA

f) NICHOLAS JUMA NAMUNABA

Each party to bear their own costs.

DATED AT BUNGOMA THIS 16TH DAY OF NOVEMBER, 2021.

S.N RIECHI

JUDGE

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