[2011] KEHC 2786 (KLR)
The court determined that it could not fairly decide on the distribution of the estate based solely on the affidavits presented, as the relationships between the parties and the deceased were disputed and material to the entitlement claims. The judge held that oral evidence was necessary to establish whether Janet...
Source-derived case information.
- Citation
- [2011] KEHC 2786 (KLR)
- Parties
- Respondent: Tesina Mumanani Shipaka; Applicant: Janet Inzero
- Court
- High Court
- Court Station
- High Court at Kakamega
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 273 of 2001
- Procedural Posture
- Succession Cause / Ruling on Protest to Confirmation of Grant; Direction for Oral Evidence
- Outcome
- Determination of beneficiary status and distribution of estate deferred pending oral evidence.
- Legal Topics
- Succession, Grant of Letters of Administration, Distribution of Estate, Beneficiary Entitlement
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Tesina Mumanani Shipaka
Respondent
Janet Inzero
Applicant
Procedural Posture
Succession Cause / Ruling on Protest to Confirmation of Grant; Direction for Oral Evidence
Legal Issues
- 1 Whether Janet Inzero and Stephen Maina are beneficiaries entitled to a share of the deceased's estate.
- 2 Whether the petitioner/respondent is the sole rightful beneficiary of the estate.
Ratio Decidendi
The court determined that it could not fairly decide on the distribution of the estate based solely on the affidavits presented, as the relationships between the parties and the deceased were disputed and material to the entitlement claims. The judge held that oral evidence was necessary to establish whether Janet Inzero and Stephen Maina were indeed beneficiaries of the deceased's estate. Only after such evidence is taken can the court determine the proper distribution of the estate. The court thus deferred the determination of beneficiary status and entitlement until after hearing oral testimony on the relationships in question.
Court Disposition
Determination of beneficiary status and distribution of estate deferred pending oral evidence.
Orders
- Oral evidence to be taken on the relationship of Janet Inzero and Stephen Maina to the deceased before determination of their entitlement to the estate.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT KAKAMEGA
SUCCESSION CAUSE NO. 273 OF 2001
IN THE MATTER OF THE ESTATE OF SOLOMON LUSENO BAKHUYA– DECEASED
BETWEEN
TESINA MUMANANI SHIPAKA......................................................PETITIONER/RESPONDENT
VERSUS
JANET INZERO....................................................................................OBJECTOR/APPLICANT
RULING
1. Solomon Luseno Bakhoya died on 2. 10. 1990 and by a Petition filed on 27. 6.2001, Deresina Mmanani Shipaka sought a grant of letters of administration to his estate and did not indicate her relationship with the deceased but stated that she wanted the letters of administration “for purpose of suing”.
2. The grant was made on 26. 6.2001 by Waweru, J. and on 11. 11. 2005, she introduced land parcel number Idakho/Shivakala/1024 as an asset available for distribution and applied that the land be transmitted to herself solely.
3. On 7. 11. 2006, Janet Inzero filed a protest to the confirmation of grant and in an Affidavit sworn on the same day, she deponed that she was one of the daughters of the deceased person and she stated that she was entitled to 0. 375 acres of the above land and the petitioner was entitled to the same acreage and that one Stephen Maina was also entitled to 0. 5 acres as was the wish of the deceased. That the said Maina was the deceased’s nephew and had taken care of him before his death and thereafter gave him a decent burial.
4. In an Affidavit sworn on 23. 10. 2007, Deresina indicated that the protester had no right to the estate neither did Stephen Maina. That Janet Inzero was not her sister and she did not know one Elizabeth Tsiluma who was said to be Janet’s mother and that Stephen Maina was a stranger colluding with Janet to disinherit her.
5. My view is that although parties had asked me to make a Ruling on distribution on the basis of the Affidavits on record, clearly I cannot make a fair decision without taking evidence on the relationship, if at all, between the parties and the deceased.
6. Since it is agreed that Deresina is a daughter of the deceased, I will call for oral evidence on the status of Janet Inzero and Stephen Main vis-a-vis the deceased before determining whether they are to benefit from the deceased’s estate at all.
7. Orders accordingly.
Delivered, Dated and Signed at Kakamega this 14th day of April, 2011.
ISAAC LENAOLA
J U D G E