[2018] KEHC 8770 (KLR)
The court determined that, while all beneficiaries are entitled to equal shares of the estate, the division of the specific properties in question (KITALE MUNICIPALITY/BLOCK 19/1 BIDII and NAKURU/UMOJA/BLOCK 8504/21) cannot be fairly accomplished by the court alone due to the need for technical assessment of the...
Source-derived case information.
- Citation
- [2018] KEHC 8770 (KLR)
- Parties
- Applicant: Rose Omuga; Respondent: Paul Oscar Pambo
- Court
- High Court
- Court Station
- High Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 1 of 2016
- Procedural Posture
- Succession Cause / Ruling on Division of Estate Property After Confirmation and Revocation of Grant
- Outcome
- Application for division of properties referred to experts; parties to appoint surveyor and valuer within 30 days or court will appoint.
- Judges
- DAS Majanja
- Legal Topics
- Intestate Succession, Division of Estate, Confirmation of Grant, Revocation of Grant
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Rose Omuga
Applicant
Paul Oscar Pambo
Respondent
Procedural Posture
Succession Cause / Ruling on Division of Estate Property After Confirmation and Revocation of Grant
Legal Issues
- 1 How should the properties KITALE MUNICIPALITY/BLOCK 19/1 BIDII and NAKURU/UMOJA/BLOCK 8504/21 be equitably divided among the beneficiaries given the hostile relationship between the sons and daughters of the deceased?
- 2 Should the court itself undertake the division of the properties or appoint experts to do so?
Ratio Decidendi
The court determined that, while all beneficiaries are entitled to equal shares of the estate, the division of the specific properties in question (KITALE MUNICIPALITY/BLOCK 19/1 BIDII and NAKURU/UMOJA/BLOCK 8504/21) cannot be fairly accomplished by the court alone due to the need for technical assessment of the land's characteristics and value. Therefore, the court declined to undertake the division itself and instead directed the parties to jointly appoint a surveyor and land valuer to assist in dividing the properties equitably, with costs to be shared equally. If the parties fail to agree on the experts within 30 days, the court will appoint them from a list provided by the relevant...
Court Disposition
Application for division of properties referred to experts; parties to appoint surveyor and valuer within 30 days or court will appoint.
Orders
- Parties to agree on a surveyor and land valuer to assist in dividing the properties equitably.
- Costs of the experts to be shared equally among the parties.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT AT KISUMU
SUCCESSION CAUSE NO. 1 OF 2016
IN THE MATTER OF THE ESTATE OF
RAPHAEL OMUGA ADIEL (DECEASED)
AND IN THE MATTER OF APPLICATION BY
BETWEEN
ROSE OMUGA …………………………..……..……………………APPLICANT
AND
PAUL OSCAR PAMBO ………………….……….…………………RESPONDENT
RULING
1. It is now 14 years since Raphael Omuga Adiel (“the deceased”) died intestate and was survived by six daughters and five sons. On 10th July 2003 a grant of letters of administration intestate was issued to Paul Oscar Pambo and Rose Omuga. I confirmed the grant on 24th April 2017 and a certificate of confirmation of grant duly issued. On 16th October 2017 the Certificate of Grant issued on 24th April 2017 was revoked by consent and a fresh confirmed grant issued on 16th October 2017 as per the wishes of the beneficiaries.
2. Although the beneficiaries are agreed that each beneficiary should have an equal share of the properties, they are not agreed on how KITALE MUNICIPALITY/BLOCK 19/1 BIDIIand NAKURU/UMOJA/BLOCK 8504/21should be divided given the hostile and frosty relationship between the sons and daughters of the deceased.
3. Dividing the land and allocating it in an equitable manner is not an enviable task for the court and having considered the proposals, I decline to enter such an exercise as I cannot possibly divide both properties as this requires consideration of the typography of the land, land use regulations and valuation to ensure that each party gets an equal share. This task can only be done by experts.
4. As such I direct that the parties agree on a surveyor and land valuer to assist them divide the property in a manner that takes into account all their interests. They shall share the costs as between them equally. If the parties fail to agree on the experts within 30 days, I shall make an appointment from a list provided by the respective professional bodies.
DATED and DELIVERED at KISUMU this 1st day of February 2018
D. S. MAJANJA
JUDGE
Ms Pekke instructed by Pekke and Company Advocates for the applicant.
Mr Odeny instructed by Bruce Odeny & Company Advocates for the respondent.