[2014] KEHC 143 (KLR)
The court found that despite being granted the first option to purchase the estate property, the objector had failed to demonstrate any genuine effort or capacity to comply with the court's order over a period of six years. The objector did not provide credible evidence of securing funds or of the expenses claimed,...
Source-derived case information.
- Citation
- [2014] KEHC 143 (KLR)
- Parties
- Applicant: Zipporah Onzere; Respondent: Sammy Mavalah
- Court
- High Court
- Court Station
- High Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 15 of 1994
- Procedural Posture
- Succession Cause / Ruling on Application to Enforce Distribution Order
- Outcome
- application allowed with conditional order for purchase or eviction
- Judges
- RPV Wendoh
- Legal Topics
- Estate Administration, Beneficiary Rights, Property Distribution, Court Orders Enforcement
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Zipporah Onzere
Applicant
Sammy Mavalah
Respondent
Procedural Posture
Succession Cause / Ruling on Application to Enforce Distribution Order
Legal Issues
- 1 Whether the objector has complied with the court's order to purchase the estate property or facilitate its sale for equal distribution among beneficiaries.
- 2 Whether the objector's claimed expenses and actions justify further delay in executing the court's order.
- 3 What remedies are appropriate to enforce the court's prior judgment regarding the estate property.
Ratio Decidendi
The court found that despite being granted the first option to purchase the estate property, the objector had failed to demonstrate any genuine effort or capacity to comply with the court's order over a period of six years. The objector did not provide credible evidence of securing funds or of the expenses claimed, nor did he account for rental income as previously directed. The prolonged non-compliance and lack of proof of intent to purchase or facilitate the sale of the property indicated a disregard for the court's judgment and the rights of the other beneficiaries. The court therefore determined that the only equitable remedy was to enforce its prior order by granting the objector a...
Court Disposition
application allowed with conditional order for purchase or eviction
Orders
- The objector is allowed 90 days within which to complete the purchase of the said property if at all.
- In default, the objector shall be evicted from the said property without further recourse to the court.
Full Case Text
Judgment text and source record
20 paragraphs
IN THE HIGH COURT OF KENYA
AT NAKURU
SUCCESSION CAUSE NO. 15 OF 1994
IN THE MATTER OF THE ESTATE OF THE LATE EDINA TSIYELI
ZIPPORAH ONZERE………….PETITIONER
VERSUS
SAMMY MAVALAH…….……OBJECTOR
RULING
The application dated 16/1/2014, was filed by the petitioner herein Zipporah Onzere who prays that the respondent Sammy Mavalah be directed to vacate the property of the estate of Edina Tsiyeli to allow it to be sold so that all the beneficiaries can share the proceeds therefrom as ordered by this court. The application is based on grounds that this court directed that the deceased’s property do vest upon the four beneficiaries in equal shares and that the respondent do have the first option to buy off the other beneficiaries or in the alternative the same be sold and the proceeds be hared equally; that the court ordered that a valuation be done and a valuation report was prepared Ex.1, 2(a) & (b); that the respondent was given the first opportunity to purchase it but has failed to pay off the other beneficiaries and that he has been violent and chased away any people interested in viewing the property for purposes of purchasing it. That is what has necessitated this application.
The application was opposed by the objector who swore an affidavit dated 26/3/2014, in which he admits that indeed the court ordered that the four beneficiaries share the property in equal shares and that he was given first priority to purchase it but he had no money; that he has now obtained a bank loan of Kshs.970,000/- as per the valuation report and he denies having chased away any prospective purchasers. He claims to have secured finances and is ready to pay off the other beneficiaries save that he has incurred other expenses in terms of rates, loan, water, building expenses all totaling Kshs.506,521/-. He prays that the application be dismissed and he be allowed to buy off the other beneficiaries.
J Koome delivered her judgment on 9/5/2008. Thereafter a valuation report was prepared, dated 27/4/2010, in accordance with the court’s judgment. In the judgment, the court noted that the objector was benefiting from the rental income from the property which had to be taken into account, the sums paid by the objector to the NHC and rates to the Municipality Council of Nakuru and the net proceeds were to be shared equally.
Although the objector was given first option to purchase the said property, it is 6 years since the court’s order and there is no evidence that he has made any efforts to comply. The objector deponed that he ha obtained a loan and wishes to purchase the property but he did not exhibit any evidence of the said intention e.g. an application to the bank and an offer made by the bank. He has listed the expenses he has allegedly incurred over rates and the loan but the court clearly directed that the rental income he has made from the property should be taken into account. He should demonstrate how much he has earned as rents so far before the other expenses can be considered . The objector did not exhibit any evidence to prove the said expenses. In any event, before the sale the onus is upon the objector to demonstrate what he has earned from the plot and other expenses incurred to enable the beneficiaries share the net proceeds from the property. Even if the applicants have not brought any proof that prospective purchasers were chased away by the objector, yet the lapse of 6 years since the court’s order is itself indicative that the objector has no intention of moving out of the property or honouring the court’s order.
For the above stated reasons, I will allow the application by the petitioner and direct that the objector is allowed 90 days within which to complete the purchase of the said property if at all, in default, the objector be evicted from the said property without any further recourse to the court. If he is evicted and the property sold, and the objector declines to sign any transfer documents, the same to be signed by the Executive Officer of this honourable court. Each party to bear its own costs this being a family matter.
DATED and DELIVERED this 1st day of October, 2014.
R.P.V. WENDOH
JUDGE
PRESENT:
Mrs Ndeda for the petitioner
Absent for the objector
Kennedy – Court Assistant