[2015] KEHC 2017 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KAKAMEGA

SUCCESSION CAUSE NO. 562 OF 2004

IN THE MATER OF THE ESTATE OF C L S……….DECEASED

BETWEEN

J S L……........................................……….……………PETITIONER

VERSUS

FERDINAND LISUTSA SHIBUKU …………………….OBJECTORS

MARY GORETI INGASO

JUDGMENT

Introduction

1. According to the papers filed herein the deceased C L S died at age of 78 on 09/11/1992 in Kakamega District. He died from difficulty or pain in passing urine.

2. On his death the deceased was survived by 3 sons; J S L, N L L and C M L. N L L has also since died. The only estate left by the deceased is land Parcel No. Isukha/Mukhonje/ [particulars withheld] which is the subject of the dispute between the Petitioner and the Objectors herein.

3. On the 11. 11. 2004, the Petitioner filed for grant of letters of Administration Intestate. The grant was issued on 14. 12. 2005. The grant was confirmed on 06/04/2010 with the only property of the deceased’s estate being shared out as follows;-

J S L – 0. 48Ha

C M L– 0. 39Ha

The Objection

4. On the 16. 05. 2011 Ferdinand Lisutsa Shibuku cautioned the suit property claiming purchaser’s interest. Mary Goreti also did the same on the same date, claiming purchaser’s interest. By a chamber summons dated 03. 07. 2013, the petitioner/applicant moved the court for orders to remove the cautions on LP Isukha/Mukhonje/ [particulars withheld] by the third parties on grounds that the cautioners had not filed any case since filing the cautions and long after confirmation of the grant on 06/04/2010.

5. In the supporting affidavit, the Petitioner/applicant deponed that the cautioners were not beneficiaries of the deceased’s estate and further that having slept on the cautions for a long time there was no justification for maintaining the cautions on the register.

6. On the 24/11/2014 directions were taken that the dispute be canvassed by way of oral evidence. Hearing commenced and concluded on 19/03/2015.

The Objector’s Case

7. Ferdinand Lisutsa Shibuku testified as PW1. He testified that he bought a portion of LP Isukha/Mukhonje/ [partculars withheld] from NLL in 2004 after the said N approached him with an offer of sale and upon production of 2 letters from the area Chief authorizing sale of the land. He stated that he paid N the sum of kshs.50,000/= as first instalment and a further kshs.12000/= as second instalment. That upon payment of the money to N the Petitioner objected to the sale. PW1 reported the matter to the area Chief but the Petitioner could not budge, hence the present proceedings, which commenced by way of cautioning the land. PW1 alleged in his affidavit dated 19/11/2013 that he took possession of the portion of land bought from N on 12/09/2004, though by a letter dated 16/02/2005 from the Assistant Chief of Mukhonje sub location, it appeared that somebody other than Ferdinand Lisutsa Shikubu was using the portion of land. PW1’s complaint was that the Petitioner secretly applied for and had confirmed the Grant of Letters of Administration to the deceased’s estate. PW1 produced several documents showing the history of the dispute and as proof that there was an agreement of sale between himself and N.

8. Josphat Isavari Chibiya testified as PW2. He also alleged that he bought some land from NLL on 19/06/2000. He said he bought the parcel of land for his daughter and that he only did so after N confirmed that he had authority from the Area Assistant Chief to sell the land. PW2 also stated that after he paid for the land he fenced it with the help of N and after the surveyor helped him to demarcate the land on the ground. He further testified that after N died the Petitioner did not effect transfer of the purchased portion to Mary Goretti Ingaso hence these proceedings by which he seeks the help of the Court to have the purchased portion transferred to the intended beneficiary. During cross examination, PW2 stated that the Petitioner was present when he (PW2) bought the land from N.

9. PW3 was Patrick Muhanji Khalumba, a teacher by profession. He testified that he is the one who recorded the agreement of sale between the Objector and NL, the seller and that in all there were 7 witnesses and that Ferdinand Lisutsa the Objector herein paid the purchase price which according to PW3 was kshs.180,000/= out of which kshs.50,000/= was paid on execution of the agreement of sale. In answer to a question from the Petitioner PW3 stated that the Petitioner was not present during the signing of the sale agreement between the Objector and N.

10. PW4 David Shihuli Khabuchi testified that he was aware N sold some land to both PW1 and PW2 and that he witnessed the payments made by PW1 and PW2 to N. PW4 confirmed that the Petitioner was not present when the deals between PW1 and PW2 on the one hand and N on the other hand were sealed. Alphonce Machina Musalakani testified as PW5. He testified that at one time during a baraza,N announced his intention to sell land and that thereafter PW1 and PW2 bought portions of land from N : PW5 stated that at the material time he was the village elder and that he knew that N had neither a wife nor children.

11. According to PW5, the Petitioner was present during the transactions which took place after the deceased had died.

The Petitioner’s Case

12. The Petitioner JSL testified as DW1. His testimony was that he wanted the deceased’s estate to devolve to him first before he shares it out to his two brothers C and N. He also stated that Ncould not have sold any land since the title was still in the name of the deceased. During question time the Petitioner told the Court that he knew nothing about the chief’s letter advertising N land for sale nor was he aware of the chief’s letter giving names of the sons of the deceased. He also testified that with time he will share out his father’s estate to all the sons, who include N.

Analysis and Findings

13. From the evidence on record, it is clear to me that N L L was indeed a son to the deceased, being the second of the three sons. N died but left neither wife nor child. The deceased’s estate being Isukha/Mukhonje/ [particulars withheld] is undoubtedly registered in the name of the deceased and the Petitioner already has a confirmed grant in his favour. The estate has been shared out between himself and his brother CML. Although the Petitioner stated during his testimony that he still wants to share out the deceased’s estate to himself and his two brothers, such a statement has no meaning since the land has already been shared out. No wonder that the aggrieved parties have cautioned the land.

14. There is also evidence on record to show that indeed N sold some land to both PW1 and PW2. It is also clear that both PW1 and PW2 should have filed their affidavits of protest before confirmation of the grant but that notwithstanding Sections 82 and 83 of the Law of Succession Act require accountability of the Petitioner to the other beneficiaries and the Petitioner cannot enjoy the benefits of the estate for only himself and one other brother without remembering that N, though now dead, was also entitled to a share of the deceased’s estate. In fact, the Petitioner was being dishonest when he told the Court on oath that he intended to share out the deceased’s estate among all the sons of the deceased when he knew that the estate had already been distributed.

15. In the circumstances, and for the above reasons, I hereby revoke the certificate of confirmation of grant made to Petitioner on 06/04/2010. The Petitioner shall file a fresh Summons for Confirmation of the grant issued to him on 14/12/2005, taking care that the share of his late brother N to the extent of the proved portions sold to PW1 and PW2 is hived off for the purpose of having it devolved to Objectors upon payment of the balance of the purchase price if any as follows:

Ferdinand Lisutsa Shibuku – 40 x 30 x 40 x 30

Josephat Isavari Chibiya or his nominee - 40’ x 40’

16. In this regard, therefore and to facilitate completion of the distribution of the deceased’s estate the Petitioner’s Chamber Summons dated 03/07/2013 be and is hereby allowed to the extent only of having the cautions filed by the respondents on 16/05/2011 removed. The costs of the application shall be in the cause.

Orders accordingly.

Ruling delivered, dated and signed in open Court at Kakamega this 24TH day of SEPTEMBER 2015

RUTH N. SITATI

J UD G E

In the presence of:

Present in Person for Petitioner/Applicant

Present in person for 1st Respondent

Represented by the father for 2nd Respondent

Mr. Lagat - Court Assistant