[2015] KEHC 2394 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT AT KITALE

LAND CASE NO. 27 OF 2012

WALTER MAJANGA NYABERAsuing as the administrator of the

Estate of the lateJOASH NYABERA EMBAYWA .................... PLAINTIFF

VERSUS

PETER AMATTA SEDIANO ........................................................ DEFENDANT

J U D G M E N T

INTRODUCTION

1. The plaintiff is the administrator of the Estate of his late father Joash Nyabera Embaywa (deceased) who was the owner of Plot No.53 Ndalu Settlement Scheme measuring about 32 acres (suit land). The plaintiff brought this suit against the defendant seeking an order of permanent injunction restraining the defendant, his agents, servants and/or employees from intermeddling in the suit land.

PLAINTIFF'S CASE

2. The plaintiff testified that the deceased had three wives. The deceased had ten children from the first house, one from the second house and the third house had no children. He stated that the deceased died in 1989. The process of succession was carried out whereby he became one of the administrators of the estate of the deceased together with Rasoa Hamba. The estate of the deceased was distributed in a judgment delivered by Justice Nambuye as she then was. The plaintiff produced a copy of the judgment as Exhibit 1. Rasoa Hamba who was one of the wives of the deceased was given 5 acres out of the suit land. Rasoa Hamba (Rasoa) had no children.

3. Rasoa died in the year 2011 before the beneficiaries of the estate of the deceased could get their individual titles. The defendant who was nephew of Rasoa used to come and visit her. During the burial of Rasoa, the plaintiff and his family noticed that the relatives of Rasoa did not want to involve them in her burial arrangements. They went and reported this to the area assistant chief who wrote a letter dated 1/8/2011. The plaintiff and his family blamed all this on the defendant.

4. The plaintiff went on to state that the area assistant chief prevailed upon them to set aside any differences they had until after Rasoa was buried. The plaintiff contends that Rasoa had no child and that she never adopted any child and that the defendant sneaked his name into the burial programme.

5. The plaintiff contends that the defendant should not lay any claim to the entitlement of Rasoa in the estate of the deceased and that what had been given to Rasoa should revert back to the deceased family as Rasoa had no children.

DEFENDANT'S CASE

6. The defendant stated that he knew Rasoa as his foster mother. Rasoa started taking care of him since his childhood. He stated that he has known the deceased as his step father and that he has known the plaintiff since the 60's. He testified that Rasoa died on 27/7/2011. He is the one who paid all the hospital bills. He produced a receipt issued to him, burial permit and photographs taken during Rasoa's burial. [Exhibit 1, 2 and 3(a) (b) and (c) respectively]. He also produced a burial programme where he is described as a child of Rasoa [Exhibit 4]. He produced a receipt and copy of certificate of death [Exhibit 5(a) and (c)].

7. When he went to use the land which Rasoa had been given during distribution of the deceased's estate, the plaintiff and his brothers threatened him. He reported the threats to the area chief who wrote a letter confirming that he was the only person who could inherit the land left behind by Rasoa. He produced the chief's letter as Exhibit 6.

8. The defendant processed and obtained grant of probate in respect of Rasoa's estate. Rasoa had left a will bequeathing the 5 acres out of Plot No. 53 Ndalu Settlement to the defendant. He produced an application in support of petition for letters of administration with will annexed [Exhibit 9]. He later obtained Certificate of Confirmation Exhibit 10. A copy of the will left behind by Rasoa was produced as Defence Exhibit 8.

ANALYSIS OF EVIDENCE AND ISSUES FOR DETERMINATION

9. I have considered the evidence adduced by the plaintiff as well as the defendant. I have also considered the submissions by counsel for the plaintiff and defendant. The issue which emerges for determination is whether the defendant is intermeddling in the estate of the deceased and whether the defendant should be injuncted from claiming any property which had been given to Rasoa during the distribution of the estate of the deceased.

10. There is evidence on record that the estate of the deceased was fully distributed and each beneficiary got his or her share. Rasoa got her share of 5 acres out of the suit land. This was after the court intervened and distributed the estate of the deceased upon evidence being given. The court did this because the beneficiaries were not agreeing on the mode of distribution. The family of the deceased wanted to give Rasoa two acres but the court found that she was entitled to 5 acres. The distribution by the court has never been challenged.What was only remaining is for each beneficiary to have his/her own title.

11. Rasoa died before the titles were processed.One of the witnesses of the plaintiff stated that they have not completed the process because they have not discharged the deceased's title from the Agricultural Finance Corporation. Even though the titles have not been processed, the fact remains that Rasoa had been given five acres out of the suit land. Rasoa had no child. Before Rasoa died, she wrote a will in which she gave all the 5 acres to the defendant. The question which needs to be answered is whether the 5 acres can legally revert to the estate of the deceased and be available for re-distribution of the deceased's estate. The simple answer to this question will be a no. Rasoa had already been given 5 acres out of the suit land. As Rasoa did not have a child, she decided to give the five acres to the defendant in a will. The five acres are therefore not available for re-distribution. Had Rasoa not given out the 5 acres in a will, then the issue of re-distribution would have come in.A person who has been given a share of a deceased's estate is free to dispose it of by way of will. This is what Rasoa did and therefore the five acres are not available. It therefore follows that the plaintiff cannot seek to injunct the defendant from the five acres which were legally given to him by Rasoa. The defendant has obtained a confirmed grant of probate in which the 5 acres due to Rasoa have been given to him.

12. The plaintiff's counsel have dwelt at length on the issue of whether the defendant was a child of Rasoa. This is in their submissions. This is not really an issue for determination. The defendant is claiming Rasoa's five acres on the basis of a will. In his evidence, the defendant had stated that Rasoa was his foster mother. It is during cross-examine that he said that he was son of Rasoa but in re-examination the record was put right when he stated that it is not Rasoa who gave birth to him. There is evidence that the defendant is nephew of Rasoa him being a son of Rasoa's sister. There is no one who is contesting this fact. The defendant was close to Rasoa. He used to stay with Rasoa. This was even confirmed by PW4 Eliphas Wanyonyi Wekesa an assistant chief who stated that he knew the defendant since the 70's. The defendant was at hand during the illness of Rasoa. He paid medical bills and was instrumental during the burial. The plaintiff and his brothers wanted to interfere with the defendant. They wanted to position themselves during Rasoa's burial. There is evidence that there was bad blood between the deceased's family and Rasoa. Rasoa had complained that the deceased's family did not want to give her land. They had even wanted to leave her out during the deceased's succession. She was only allowed to come in a co-administrator after she filed objection. The five acres which is the subject of this litigation were given to her by the court. All this is contained in the judgment in Succession Cause No. 56 of 1998 at the High Court at Kitale.

DETERMINATION

13. Having found that the defendant is lawfully entitled to the 5 acres given to Rasoa during the distribution of the estate of the deceased and Rasoa having given all her entitlement to the defendant through a will, I find that the plaintiff has no ground for barring the defendant from accessing the 5 acres. The upshot of this is that the plaintiff's claim fails and the same is hereby dismissed with costs to the defendant.

Dated, signed and delivered at Kitale on this 30th day of September, 2015.

E. OBAGA

JUDGE

In the presence of Mr. Kaosa for Mr. Ayieko for Plaintiff and Mr. Ingosi for Defendant.

Court Assistant – Winnie.

E. OBAGA

JUDGE

30/9/2015