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In re Estate of Lichungu Mwalati Wachiya (Deceased) (Succession Cause 390 of 2013) [2022] KEHC 9961 (KLR) (13 July 2022) (Judgment)
Neutral citation:
[2022] KEHC 9961 (KLR)
Republic of Kenya
Succession Cause 390 of 2013
PJO Otieno, J
July 13, 2022
IN THE MATTER OF THE ESTATE OF LICHUNGU MWALATI WACHIYA (DECEASED)
Between
Ibrahim Mwalati Lichungu
Administrator
and
Gladys Machuma Tamunune
Administrator
Judgment
1.This determination regards the protest to the proposal by the Administrator to have the property agreed to belong to the estate and known as South Kabras/Chemuche/988 distributed between the Protestor and one Caleb Lazaro Chisika Isaya. It is agreed by both sides and the witnesses called at the hearing that the said Caleb Lazaro is not a relative to the deceased, thus not a beneficiary but a Purchaser of a portion of the property measuring 0.8 hactares. Another uncontested fact is that the property even though registered in the name of the deceased, had indeed been designated and known by all family members to belong to one Joseph Minune Lichungu, also deceased, the husband to the 2nd Administrator.
2.The question that is whether the property should be distributed as proposed by the 1st Administrator or if it should go to the family of Joseph Minune Lichungu absolutely.
3.This court takes the learning that the duty and mandate of a Probate Court is to determine the property that constitutes an estate, the persons entitled to inherit the same and how much each of them is entitled to inherit the same and how much each of them is entitled to within the estate. It is not the duty of the Probate court to delve into the intricate questions of dealings over the land by persons not entitled so as to put them on the same level with those entitled. Put in the context of this matter the claim by the 1st Administrator is not his own, for he says he has no interest nor claim over the land, but the interest of one Caleb Lazaro Chisika Isaya asserting a purchaser’s rights.
4.Caleb Lazaro is undeniably a stranger to the estate. He is uninvited to sit on the distribution table and claim as if he was a beneficiary. His claim as disclosed by the 1st Administrator is a chose in action that he ought to pursue, if he be included directly, not among the 1st Administrator and against the estate of he who sold to him. Such dispute obviously sits outside the jurisdiction of this court in all events whether it sits as a Probate Court or a pure Civil Court.
5.The Court therefore finds that the proposal to distribute a portion of the estate to Caleb Lazaro Chisika Isaya, is untenable in law as it seeks from the court a determination of a claim to land. It being agreed that the property was designated and due for transmission to Joseph Minune Lichungu, free from any claim by the other children and beneficiaries of the estate and it being common place that at death Joseph Minune Lichungu left behind a widow, 2nd Administrator and four children, the Court allows the Protest and determines that the estate property known as S.Kabras/Chemuche/988 be distributed and transmitted to Gladys Machuma Tamunune, Philip M’mbasu Lichungu, Peres Mucheywa Chemunune, Mirriam Khabakali Chemunune and Rhoda Khakoni Chemunune.
6.The application dated 8.3.2017 is therefore allowed on terms that the grant be confirmed and the certificate of confirmation issues as distributing that property to the said five (5) people.
7.Upon being issued, let the Administrator forthwith have the property transferred to the said beneficiaries within 60 days from the date of this Judgment and to report to court that the administration shall have been concluded, on the 5.10.2022
8.Being a family dispute, even though the conduct of the 1st Administrator is less than commendable, I order that each party bears own costs.
DATED, SIGNED AND DELIVERED IN OPEN COURT THIS 13TH DAY OF JULY 2022.PATRICK J. O. OTIENOJUDGEIn the presence of:Mr. Munyendo for the 1st AdministratorNo appearance for Elung’ata for the 2nd Administrator/ProtestorCourt Assistant: Kulubi
