[2015] KEHC 3273 (KLR)
The court found that the Objector, Laban Shokhunjira Shibambo, had already received his share of the deceased's estate, evidenced by his acquisition and processing of title to Plot Number KAKAMEGA/SHAMBERERE/1521. The remaining land, Plot Number S/KABRAS/SHAMBERERE/1520, was properly distributed among the other...
Source-derived case information.
- Citation
- [2015] KEHC 3273 (KLR)
- Parties
- Applicant: Timothy Khangwana Shivambo; Applicant: Marko Shibambo Malau; Respondent: Laban Shokhunjira Shibambo
- Court
- High Court
- Court Station
- High Court at Kakamega
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 602 of 2009
- Procedural Posture
- Succession Cause / Ruling on Objection to Confirmation of Grant
- Outcome
- objection dismissed; confirmed grant upheld
- Judges
- SJ Chitembwe, AT Sitati
- Legal Topics
- Succession of Estates, Distribution of Land, Confirmation of Grant, Revocation of Grant
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Timothy Khangwana Shivambo
Applicant
Marko Shibambo Malau
Applicant
Laban Shokhunjira Shibambo
Respondent
Procedural Posture
Succession Cause / Ruling on Objection to Confirmation of Grant
Legal Issues
- 1 Whether the Objector, Laban Shokhunjira Shibambo, is entitled to benefit from Plot Number S/KABRAS/SHAMBERERE/1520.
- 2 Whether the confirmed grant issued on 13th July, 2011 should be revoked or upheld.
Ratio Decidendi
The court found that the Objector, Laban Shokhunjira Shibambo, had already received his share of the deceased's estate, evidenced by his acquisition and processing of title to Plot Number KAKAMEGA/SHAMBERERE/1521. The remaining land, Plot Number S/KABRAS/SHAMBERERE/1520, was properly distributed among the other three sons, with the Objector himself acknowledging in writing that the remaining plot belonged to his brothers. There was no evidence that the deceased retained two acres for further subdivision or that the distribution was unfair. The court emphasized that exact equality in distribution is not a legal requirement, and the minor difference in acreage between the Objector and his...
Court Disposition
objection dismissed; confirmed grant upheld
Orders
- The objection by Laban Shokhunjira Shibambo is dismissed.
- The confirmed grant issued on 13th July, 2011 shall continue to operate.
Full Case Text
Judgment text and source record
30 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT AT KAKAMEGA
SUCCESSION CAUSE NO. 602 OF 2009
IN THE MATTER OF THE ESTATE OF: LUKA SHIVAMBO MALALU (DECEASED)
BETWEEN
TIMOTHY KHANGWANA SHIVAMBO &
MARKO SHIBAMBO MALAU......................................................PETITIONERS
AND
LABAN SHOKHUNJIRA SHIBAMBO …........................................OBJECTOR
RULING
The late Luka Shivambo Malalu died on 31st December, 1995. He was survived by four sons namely:-
Mark Malalu Shivambo
Timonthy Kangwana Shivambo
Obadia Zaphania Shivambo
Laban Shokhunjira Shibambo
The first three sons filed this succession cause seeking to inherit Plot Number S/KABRAS/SHAMBERERE/1520 measuring 3. 90 Ha. A grant was issued to Timothy on 3rd March, 2010.
A fresh grant was issued to Timothy and Marko Malau Shivambo on 9th July, 2010. The grant was confirmed on 13th July, 2011 whereby the land was distributed equally amongst the first three sons.
The Objector who is the deceased's first born son filed an application dated 16th March, 2012 seeking to have the grant revoked. The matter proceeded by way of oral evidence. The Objector's evidence is that the deceased had two wives. Himself and Timothy are from the first wife while the other two sons are from the second house. The deceased distributed his land and each son was shown where to build. He was given 2½ acres and he processed his title. This Plot Number KAKAMEGA/SHAMBERERE/1521 measuring 1. 27 Hectares. It is his evidence that the Petitioners were given their own land and his late father retained two acres. He would like to have the two acres subdivided equally amongst the four sons so that he can get ½ acre. According to him, the Petitioners did not process their titles.
Timothy Kangwana Shivambo testified on behalf of his other brothers. His evidence is that the Objector was given three (3) acres. The main plot was 12½ acres. The remaining 9½ acres was to be divided equally among the three sons. It is true each of the sons was shown where to build. He remained with the parents until their death. The parents had no separate place to cultivate. The Objector was given his own land.
I have gone through the pleadings and the evidence herein. The only issue for determination is whether the Objector should benefit from Plot Number S/KABRAS/SHAMBERERE/1520. The pleadings show that Plot Numbers 1520 and 1521 were created from Plot Number 638. I believe Plot Number 638 is the one that was measuring 12½ acres.
Plot Number 638 was sub-divided and the Objector became the proprietor of Plot Number 1521 measuring 1. 27 Hectares. He obtained his title deed on 13-1-2004. The sub-division was done in 1983. It is not clear how this was done as by the time the sub-division was done there was no confirmed grant. However, Plot Number 1520 remained in the names of Shibambo Malalu, the deceased herein.
According to the Petitioners the Objector wrote a letter indicating that the deceased distributed his land to his four sons and his brothers were to process their title. The letter was produced as exhibit one (1) for the Petitioners.
It is clear from the evidence that the Objector processed his own title deed. There is no evidence that the deceased retained two acres.The remaining plot seems to have been in the name of the deceased. There is no evidence as to what acreage the other three sons were given each when the Objector was given 1. 27Ha. The remaining plot is 3. 9Hectares. This gives the three other sons 1. 3Ha each. There is no requirement that distribution of an estate should be exactly equal in proportionality amongst the beneficiaries. The three sons agreed to share the 3. 9 Ha equally. The only difference between the Petitioners' share and that of the Objector is 0. 03 Hectares. Timothy remained with the parents and must have taken good care of them. I do find that the Objector took his share and in his own letter acknowledged that the remaining plot belongs to his three brothers.
In the end, I do find that the Objection lacks merit and the same is dismissed. The confirmed grant issued on 13th July, 2011 shall continue to operate. Each party to meet his own costs.
Dated signed this 9th day of January, 2015
Said J. Chitembwe
JUDGE
Dated, delivered and countersigned this 11th day ofFebruary,2015
Ruth Sitati
JUDGE