[2012] KEHC 4687 (KLR)
The court found that the respondents, as sons of the deceased, had no legal capacity to sell any portion of the deceased's land before succession proceedings were concluded and a grant of representation obtained. Any purported sale to the applicant was therefore invalid, as the respondents did not own the land at...
Source-derived case information.
- Citation
- [2012] KEHC 4687 (KLR)
- Parties
- Applicant: Simon Tanimwet Sioyi; Respondent: Stephen Wafula Wechuli; Respondent: Samuel Wanyama Wechuli
- Court
- High Court
- Court Station
- High Court at Bungoma
- Jurisdiction
- Kenya
- Case Number
- Probate & Administration 83 of 2008
- Procedural Posture
- Probate and Administration / Ruling on Application for Confirmation of Grant
- Outcome
- application dismissed
- Judges
- AO Muchelule
- Legal Topics
- Intestate Succession, Confirmation of Grant, Capacity to Sell Estate Property, Beneficiaries of Estate
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Simon Tanimwet Sioyi
Applicant
Stephen Wafula Wechuli
Respondent
Samuel Wanyama Wechuli
Respondent
Procedural Posture
Probate and Administration / Ruling on Application for Confirmation of Grant
Legal Issues
- 1 Whether the applicant is entitled to a portion of the deceased's estate based on alleged purchases from the respondents.
- 2 Whether the respondents had legal capacity to sell portions of the deceased's land before succession was completed.
- 3 Whether the applicant qualifies as a beneficiary of the estate.
Ratio Decidendi
The court found that the respondents, as sons of the deceased, had no legal capacity to sell any portion of the deceased's land before succession proceedings were concluded and a grant of representation obtained. Any purported sale to the applicant was therefore invalid, as the respondents did not own the land at the time of the transactions. The applicant, not being a beneficiary under the Law of Succession Act, could not claim a share of the estate based on such transactions. The application for confirmation of grant seeking to allocate part of the estate to the applicant was dismissed, as it would amount to giving effect to an invalid transaction involving estate property before proper...
Court Disposition
application dismissed
Orders
- The application for confirmation of grant is dismissed.
- Costs to be paid by the respondents.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLICOF KENYA
IN THE HIGH COURT
AT BUNGOMA
P&A NO.83 OF 2008
IN THE MATTER OF THE ESTATE OF ZEPHANIA WECHULI
ZEPHANIA WECHULI..................................................DECEASED
AND
SIMON TANIMWET SIOYI............................CITOR/APPLICANT
VS
STEPHEN WAFULA WECHULI......................1ST RESPONDENT
SAMUEL WANYAMA WECHULI....................2ND RESPONDENT
RULING
The deceased Zephania Wechuli died intestate on 29/12/1987 at Chesikaki. He left two sons, Stephen Wafula Wechuli and Samwel Wanyama Wechuli (the Respondents). He was the registered proprietor of land parcel Malakisi/East Sasuri/422 measuring about 7. 5 acres. The Petitioner’s evidence is that on 31/5/91 he bought 3 acres of the land from Stephen and on 29/8/1991 he bought from him a further 2 acres. Stephen and Samwel had sold two plots measuring 0. 10 hectares of the suit land to Fredrick Simiyu Murwa and John Lasaro. The Petitioner bought the two plots from these buyers. In total he had bought 2. 50 hectares of the deceased’s land. He was put into possession and has extensively developed the portions. The Respondents did not file a succession cause to inherit their late father. The Petitioner filed a citation and eventually got letters of administration. He wants the grant confirmed and he be given 2. 50 hectares of the deceased’s land and that the balance goes to the Respondents.
Stephen swore a replying affidavit to deny that the Petitioner bought any land from him. His case is that the Petitioner is not one of the sons of the deceased and is therefore not entitled to benefit from the estate. He swore that the Petitioner was his father-in-law who was only left to protect the deceased’s land during the tribal clashes in Mt. Elgon.
It is my considered view that the Respondents had no capacity to sell any portion of Malakisi/East Sasuri/422 to the Petitioner, or to any other person, as they did not own the land. The land belonged to their father, and they were only going to inherit it and own it following succession proceedings. Any monies received from the Petitioner was in anticipation of their succeeding their father.
These are the reasons why I dismiss the application for confirmation as it seeks to give portions of the deceased’s land to the Petitioner. I ask that given what has happened, costs be paid by the Respondents.
Dated, signed and delivered at Bungoma this 10th day of May, 2012.
A.O. MUCHELULE
JUDGE