Please Wait. Searching ...
In re Estate of Simeon Wanyonyi Khwatenge (Deceased) (Succession Cause 466 of 2009) [2022] KEHC 13930 (KLR) (7 October 2022) (Ruling)
Neutral citation:
[2022] KEHC 13930 (KLR)
Republic of Kenya
Succession Cause 466 of 2009
SN Riechi, J
October 7, 2022
IN THE MATTER OF THE ESTATE OF SIMEON WANYONYI KHWATENGE-DECEASED
Between
Kennedy Wanyonyi
Petitioner
and
Joseph Wanambuko
1st Objector
Jacob Mwima
2nd Objector
Dishon Wanyonyi
3rd Objector
Ruling
1.The application dated December 17, 2021 seeks the following orders;1.The honourable court do make an order that Kakamega/Moi’s Bridge/82 was subdivided into Kakamega/Moi’s Bridge/996-998 and the deceased was the registered proprietor of land parcel Kakamega/Moi’s Bridge/996 and on sub-division the numbers were as follows; Kakemega/moi’s Bridge/1162,1161,1160,1164,1163 and land parcel Bungoma/soysambu/6 registered in the name of Kirwa Arap Kirwa property owned by the deceased Simeon Wanyonyi Khwatenge which was sub-divided from Kakamega/moi’s Bridge/9962.That the order given on 10/6/2019 by Aroni J, be extended.3.The summons of confirmation by the applicants be deemed duly filed upon the sub-division of the deceased’s numbers Kakamega/Moi’s Bridge/996 to be sub-divided into Kakamega/Moi’s Bridge/1160,1161,1163,1164 and 1165.4.That the submissions on the part of the applicants in respect to Kakamga/Moi’s Bridge/82 to 996 which was sub-divided into Kakamega/Moi’s Bridge/1160,1161,1162,1163,1164 and 1165 be deemed as filed and the court to make orders respectively as per their confirmations.5.That the court does order that parcel no Bungoma/Soysambu/6 does not belong to the deceased but one Kirwa Arap Kirwa and it belongs to;a)Alex Juma Karani-11 acresb)Mr. Nakhayani- 3 acresc)Barasa Omondi- 2 acresd)Wanyonyi Sikuku -3 acres.6.Costs be in the cause.
2.The application is opposed through the affidavit of Kennedy Khwatenge sworn on February 8, 2022 whose contents have been noted and taken into consideration.
3.Upon perusing the application, the court wishes to address two preliminary issues arising therefrom; firstly, the application is poorly drawn to the extent that court cannot discern the orders sought, second is the ownership of land parcel number Bungoma/Soysambu/6 which does not form part of the estate. That was indeed confirmed by this same court vide its ruling delivered on November 16, 2021. There is no contrary evidence adduced through this application controverting this fact and the court finds that this parcel of land does not form any basis for determination in this ruling.
4.This leaves us with land parcels Kakamega/Moi’s Bridge/1160, 1161, 1162,1163,1164 as the properties of the estate despite the fact that the certificate of official search annexed to the application shows that land parcel Kakamega/Moi’s Bridge/996 was sub-divided into 8 parcels of land 1159-1166.
5.The court notes that the applicants have annexed their draft summons for confirmation of grant. As such the orders sought in the instant application cannot be granted at the moment unless and until the applicants file their summons for confirmation of grant and the respondent accorded an opportunity to signify his acceptance or otherwise with the proposed mode of distribution.
6.Having said as such, the orders sought in the application and the response thereto can only be properly and adequately addressed once the summons for confirmation is on record otherwise delving into determining the application would pre-empt the intended application. In any case, if there is any evidence contrary to the court’s finding on the ownership of land parcel Bungoma/Soysambu/6, the applicants are directed to bring forth by way of supplementary affidavits at the time of filing the summons for confirmation.
7.In the circumstances, the application is allowed only to the extent that the applicants are hereby directed to file and serve their summons for confirmation of grant upon the respondent within 30 days from the date hereof. This matter shall be mentioned on November 30, 2022 to confirm compliance.
DATED AT BUNGOMA THIS 7TH DAY OF OCTOBER, 2022.S.N. RIECHIJUDGE
