[2015] KEHC 2236 (KLR)
The court found that the objector, Wandera Bachakha, was not a beneficiary of the estate but rather a claimant asserting a right to a portion of the estate land based on alleged family entitlement and a tribunal decision. The court held that such a claim does not entitle the objector to seek revocation of the grant...
Source-derived case information.
- Citation
- [2015] KEHC 2236 (KLR)
- Parties
- Applicant: Pauline Ajiambo Egokhe; Applicant: Patrick Sikuku; Respondent: Wandera Bachakha
- Court
- High Court
- Court Station
- High Court at Busia
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 256 of 2011
- Procedural Posture
- Succession Cause / Ruling on Objection to Grant of Letters of Administration
- Outcome
- objection dismissed with costs
- Legal Topics
- Revocation of Grant, Beneficiary Status, Family Land Disputes, Trusts in Land
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Pauline Ajiambo Egokhe
Applicant
Patrick Sikuku
Applicant
Wandera Bachakha
Respondent
Procedural Posture
Succession Cause / Ruling on Objection to Grant of Letters of Administration
Legal Issues
- 1 Whether the objector is entitled to revocation of the grant of letters of administration issued to the petitioners.
- 2 Whether the objector is a beneficiary of the estate or has a claim against the estate that can be determined in succession proceedings.
- 3 Whether the land tribunal proceedings and orders can be enforced in the succession cause.
Ratio Decidendi
The court found that the objector, Wandera Bachakha, was not a beneficiary of the estate but rather a claimant asserting a right to a portion of the estate land based on alleged family entitlement and a tribunal decision. The court held that such a claim does not entitle the objector to seek revocation of the grant of letters of administration, as he has not demonstrated priority over the petitioners, who are the widow and son of the deceased. Furthermore, the court determined that the objector's claim, being one against the estate and not as a beneficiary, must be pursued in a different forum and not within succession proceedings. The court also noted that the land tribunal proceedings...
Court Disposition
objection dismissed with costs
Orders
- The objection by Wandera Bachakha dated 27th May 2013 is dismissed with costs.
- The grant of letters of administration issued to the petitioners remains in force.
Full Case Text
Judgment text and source record
32 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT BUSIA
SUCCESSION CAUSE NO. 256 OF 2011
IN THE MATTER OF THE ESTATE OF SENJWA PASKAL EGOKHEDECEASED
AND
PAULINE AJIAMBO EGOKHE
PATRICK SIKUKU-------------PETITIONERS
VERSUS
WANDERA BACHAKHA-------------------OBJECTOR
RULING
These proceedings relate to the Estate of Paskal Senjwa Egokhe (The Deceased) who died on 10th February 1996. The only property to the Estate is Samia/Buburi/256.
Before Court for Determination are objection proceedings taken out by Wandera Bachakha (The Objector) who has by way of Notice of Motion dated 27th May 2013 sought the following:-
That the Grant of Letters of Administration made to the Petitioner on the 9/11/2011 be revoked.
That costs of this application be provided for.
In support of that objection, the Objector swore an affidavit dated 27th May 2013 in which he told court that through proceedings in Busia PM Land Case No. 47 of 2010 the Land Tribunal gave him 1/3 of the Estate land. That no appeal has been filed to challenge the said judgment. In paragraph 6 of the said affidavit he states:
“That the Petitioners have not come to court with
clean hands and are not interested in executing the
orders of the Court”.
The Petitioners herein are widow and son respectively to the Deceased. The Objector does not say he has priority in their stead to take out Letters of Administration to the Estate of the Deceased. It is however the Objector’s position that the Petitioner need to give effect to the court order in Busia SPMCC Land Dispute No. 47 of 2010.
I have looked at the Proceedings before Funyula Land Disputes Tribunal that were adopted in Busia PM Land Case No.47 of 2010. Those proceedings reveal the true nature of the objector’s claim herein. Basically the Objector’s contention is that Samia/Buburi/256 is family land and though solely registered in the name of the Deceased, his father’s 1/3 share ought to be recognized. If there was any doubt as to the nature of this claim then it is removed by what the Objector’s own Statement in paragraph 18 of his affidavit of 31st July 2014. He stated:-
“That during Land Adjudication and Registration I am the one who allowed the Deceased to be registered to the disputed land as our elder brother’s son and to hold in trust for himself and ourselves to process our respective titles later as the boundaries were still on the ground.”
The inevitable finding this Court must reach is that the Objector’s claim herein is not one of a beneficiary but a claim against the Estate. Though the Objector seeks to rely on the Land Dispute Proceedings, one must observe that these proceedings could well be a nullity as they were commenced after the death of the Deceased and before an Administrator had been appointed to his estate.
The Objector must look to another forum to stake his claim against the Estate. It cannot be in Succession Proceedings. It is for that reason that I find that the Objection Notice of Motion dated 27th May 2013 is without merit and must be dismissed with costs.
It would be important to conclude by saying this. If indeed, the family of the Objector resides on the family land, then the Petitioner cannot use this Decision to evict them. Parties are advised that whether or not the Objector has a legitimate claim in land parcel Samia/Buburi/256 is a matter that needs to be litigated and settled once and for all.
As explained to the Parties, this Decision could only be delivered on Notice to them as I was proceeding for my Annual Leave and thereafter for August vacation. That explains the apparent delay.
Dated, signed and delivered at Busia this 1st day of October.
F. TUIYOTT
J U D G E
In the presence of:-
Oile………………..Court Clerk
Juma h/.b for Balongo…….. for the Petitioners
Onsongo…………………. For the Objector