[2014] KEHC 6728 (KLR)
The court found that Lawrence Musindi was entitled to one acre of the estate because he refunded the purchase price to Festo, the original purchaser of that portion of land. The evidence established that the deceased had sold part of the land to Festo, but the family later objected and a refund was made by Lawrence....
Source-derived case information.
- Citation
- [2014] KEHC 6728 (KLR)
- Parties
- Applicant: Teresina M. Musindi; Respondent: Laurence M. Musindi
- Court
- High Court
- Court Station
- High Court at Kakamega
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 311 of 2011
- Procedural Posture
- Succession Cause / Ruling on Distribution of Estate
- Outcome
- Estate distributed with one acre to Lawrence Musindi for refund, remainder shared equally among six beneficiaries.
- Legal Topics
- Succession of Estates, Distribution of Inheritance, Customary Law on Land, Refund of Purchase Price
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Teresina M. Musindi
Applicant
Laurence M. Musindi
Respondent
Procedural Posture
Succession Cause / Ruling on Distribution of Estate
Legal Issues
- 1 Whether Lawrence Musindi is entitled to one acre of the estate for refunding the purchase price to Festo.
- 2 How the estate of the deceased should be distributed among the beneficiaries.
Ratio Decidendi
The court found that Lawrence Musindi was entitled to one acre of the estate because he refunded the purchase price to Festo, the original purchaser of that portion of land. The evidence established that the deceased had sold part of the land to Festo, but the family later objected and a refund was made by Lawrence. The remainder of the estate is to be distributed equally among the six surviving children, as there was no dispute regarding the identity of the beneficiaries. The court rejected the argument that married daughters should be excluded from inheritance, affirming equal distribution except for the one acre awarded to Lawrence for his refund. Each party is to bear their own costs.
Court Disposition
Estate distributed with one acre to Lawrence Musindi for refund, remainder shared equally among six beneficiaries.
Orders
- Lawrence Musindi is awarded one acre of plot KAKAMEGA/SHISWA/48 for refunding Festo.
- The remainder of the estate to be distributed equally among Getrude Musanga, Vincent Likatata, Maxmilla L. Musindi, Anjelina I Musindi, Teresina M. Musindi, and Lawrence Musindi.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KAKAMEGA
SUCCESSION CAUSE NO. 311 OF 2011
IN THE MATTER OF THE ESTATE OF PETER MUSINDI LWIMBO…DECEASED
TERESINA M. MUSINDI …………………………………… PETITIONER
V E R S U S
LAURENCE M. MUSINDI ……………………………………… OBJECTOR
R U L I N G
The late PETER MUSINDI LWIMBO died on the 21. 5.2003 aged 87 years old. He was survived by six children namely- Getrude Musanga, Vincent Likatata, Maxmila L. Musindi, Anjelina Musindi, Teresina Musindi and Lawrence Musindi. The only estate is plot number KAKAMEGA/SHISWA/48 measuring 2. 20 Ha. The beneficiaries did not agree on the mode of distribution and parties adduced oral evidence.
Lawrence Musindi objected to the distribution and testified that his main contention is that the deceased had sold one acre to one FESTO and he is the one who refunded Festo the purchase price of KShs.33,500/=. He would like to be given that one acre before the estate is distributed. He also contends that his sisters are married and have property from their respective husbands. PW2 LUKA MULEMBI is a neighbor and testified that the deceased sold part of the land to Festo who is now deceased. Lawrence repaid the money in the year 2000 and is the one who is using that part of the land. According to his evidence the mother to the parties herein is his sister. He saw the objector paying back the sum of KShs.33,500/=.
Vincent Likatata Paul is the deceased grandchild. His only prayer is that he gets his father’s share. He testified as DW1 and would like the estate to be distributed. Anjelina Musindi was DW2 and is the deceased daughter. She would like the estate to be distributed amongst the 6 surviving children.
From the evidence on record it is clear that there is no dispute as to the beneficiaries of the estate. The only dispute is regard to the one acre the objector is claiming. From the line of cross-examination by the petitioner it is established that the deceased had sold part of his land but the family late on objected and a refund was made. I am satisfied that it is the objector Lawrence who repaid Festo. I find that Lawrence is entitled to that portion of land as he is the one who refunded Festo. The petitioner had proposed to distribute the estate equally whereby each of the six beneficiaries was to get 0. 36 Ha. I do order that deceased estate be distributed as follows:-
Plot Number KAKAMEGA/SHISWA/48
Lawrence K. Musindi - 1 acre
Lawrence K. Musindi -
Getrude Musanga -
Vincent Likatata - to share
Maxmilla L. Musindi - the remainder
Anjelina I Musindi - equally
Teresina M. Musindi -
Lawrence Musindi shall be at liberty to combine his two portions of land as hereinabove indicated. Each party to meet his/her own costs.
Delivered, dated and signed at Kakamega this 27th day of February 2013
SAID J. CHITEMBWE
J U D G E