[2016] KEHC 2975 (KLR)
The court determined that the distribution of the deceased's estate should be based on the surveyor's report, which accurately reflected the current occupation and use of the land by the parties and purchasers. Since a significant portion of the land had already been sold and was in the possession of third parties,...
Source-derived case information.
- Citation
- [2016] KEHC 2975 (KLR)
- Parties
- Petitioner: Elimina Khamuya Cheto; Respondent: Margaret Abwoba’s family; Respondent: African Kenya of Soi Church; Respondent: Catherine Musiko; Respondent: Margaret Mwonyonya; Respondent: David Amwayi
- Court
- High Court
- Court Station
- High Court at Kakamega
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 613 of 2004
- Procedural Posture
- Succession Cause / Final Distribution Ruling
- Outcome
- Estate distributed according to surveyor's report; each party to bear own costs.
- Judges
- AT Sitati
- Legal Topics
- Intestate Succession, Distribution of Estate, Land Allocation, Beneficiary Entitlement
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Elimina Khamuya Cheto
Petitioner
Margaret Abwoba’s family
Respondent
African Kenya of Soi Church
Respondent
Catherine Musiko
Respondent
Margaret Mwonyonya
Respondent
David Amwayi
Respondent
Procedural Posture
Succession Cause / Final Distribution Ruling
Legal Issues
- 1 How should the net intestate estate of the deceased, David Murunga Simwa, be distributed among the parties?
- 2 Should the court interfere with the portions of land already occupied by purchasers and other parties as measured by the district surveyor?
- 3 What is the entitlement of each party to the estate based on occupation and prior sales?
Ratio Decidendi
The court determined that the distribution of the deceased's estate should be based on the surveyor's report, which accurately reflected the current occupation and use of the land by the parties and purchasers. Since a significant portion of the land had already been sold and was in the possession of third parties, the court found no reason to disturb these arrangements. The remaining estate was distributed among the listed beneficiaries in accordance with the measured portions, including the unutilized portion of 0.12ha, which was allocated to the petitioner. Each party was ordered to bear their own costs, and the court declined to interfere with the status quo as established by the...
Court Disposition
Estate distributed according to surveyor's report; each party to bear own costs.
Orders
- Margaret Abwoba’s family awarded 0.44ha.
- African Kenya of Soi Church awarded 0.10ha.
Full Case Text
Judgment text and source record
40 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT KAKAMEGA
SUCCESSION CAUSE NO. 613 OF 2004
IN THE MATTER OF THE ESTATE OF MURUNGA SIMWA....DEACEASED
AND
ELEMINA KHAMUYA CHETO.....................................................PETITIONER
R U L I N G
Introduction
1. The case herein was heard by Justice Chitembwe who in his ruling dated 18. 09. 2014 gave the following directions.
1. That Kakamega Land District Registrar and Surveyor to visit the suit property number S. Kabras/Shamberere/315 and mark out the portions occupied by the family of Margaret Abwoba’s family, the portion occupied by African Kenya of Soi church, portions occupied and utilized by the two parties and any other purchase on the ground.
2. Parties herein to share the costs of the survey work
3. Thereafter the matter to be listed for final ruling on distribution of the estate
Determination
2. On the 9. 7.2015 this case came up before Bwonwonga Judge who was taking part in the Justice at last initiative. From the pleadings, it seems M/S Muleshe Advocate had problems and was frustrated by the survey office who were required to visit the suit land on 8. 4.2015 but they did not do so even after she had made payments on 16. 03. 2015.
3. This court took over this matter on 28. 06. 2016 and ordered that a copy of the surveyors report dated 27. 04. 2016 be filed by Mrs Muleshe before any ruling on distribution is given. The said report has been filed. It was prepared by Mr. Geoffrey Edasi who visited the suit land on 16. 03. 2016, measured and made general observations before indicating the resultant portion occupied by the parties on the ground as follows;-
1. Margaret Abwoba’s family – 0. 44Ha
2. African Kenya of Soi Church – 0. 10Ha
3. Elimina K. Chetto – 0. 045Ha
4. Catherine Musiko – 0. 26Ha
5. Margaret Mwonyonyo – 0. 30Ha
6. David Amwayi – 0. 60 Ha
4. The surveyor noted that a portion measuring 0. 12ha was not being utilized by any of the parties named above, although the respondent claimed to have apportioned it to the Petitioner. The respondent was present on site during the surveyor’s visit.
5. The task for this court is therefore to distribute the net intestate estate of David Murunga Simwa (deceased). According to the survey, it is clear that a big part of the deceased’s land was sold and the purchasers are in occupation thereof.
6. This court will therefore not interfere with those portions as measured by the district surveyor, and accordingly the deceased’s net intestate estate will be distributed as follows;-
a. Margaret Abwoba’s family – 0. 44ha purchasers
b. African Kenya of Soi Church – 0. 10Ha
c. Elimina K. Chetto – 0. 045Ha Plus 0. 12Ha =0. 165 Ha
d. Catherine Musiko – 0. 26Ha
e. Margaret Mwonyonya – 0. 30Ha
f. David Amwayi – 0. 60 Ha
Each party in these proceedings shall bear their own costs
Orders accordingly
Ruling delivered, dated and signed in open court at Kakamega this 1st day of September 2016
R. N. SITATI
JUDGE
In the presence of;-
............Mr. Getanda for Mrs. Muleshe(present).........For Petitioner
.............N/A.........................................................For Respondent
..............Mr. Lagat.................................................Court Assistant