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In re Estate of Joseph Manyoni Musindai (Deceased) (Succession Cause 1158 of 2014) [2022] KEHC 14615 (KLR) (1 November 2022) (Ruling)
Neutral citation:
[2022] KEHC 14615 (KLR)
Republic of Kenya
Succession Cause 1158 of 2014
PJO Otieno, J
November 1, 2022
In the matter of
Florence Atolwa Musindai
1st Respondent
Wilfridah Amudwayi Shivachi
2nd Respondent
Ruling
1.Expressed to be premised upon Section 4 (3) of the Law of Succession Act, the Objectors’ application dated 10.2.2020 seek the orders that all proceedings towards the confirmation of grant and distribution of the estate be stayed pending the hearing and determination of their claim filed and being pursued in Environment and Land Court as No. Kakamega ELC Cause No. 117 of 2019 (OS).
2.In their suit the Objectors have sued the legal representatives, the Petitioners herein and are seeking the determination of whether the suit land has been transmitted pursuant to a succession cause was vested upon the Objectors by operation of the doctrine of adverse possession and customary trust. The facts disclosed in the Affidavit to ground the request in the application are set out in the Affidavit sworn by George Shivachi Alusiola to be that; that parcel of land known as Kakamega/Savane/322 measuring 4.2 Ha, initially belonged to one Johana Meso Musindali before it was transmitted and was registered in favour of the deceased herein and one Shem Alusiola Musindai by way of transmission after which the two were to share the property equally.
4.The said Johana Meso Musindali who is the father to the two Objectors predeceased the deceased herein before the land was partitioned between the two but the Objector continued to live upon and occupy their portion for which occupation and user they have sought to have adjudicated and recognized before the Environment and Land Court in ELC Cause No. 117 of 2019 (OS). In essence the object and goal of the Summons is to preserve the property by staling allenation by transmission pending the determination of the claim over title to land.
5.The Summons was opposed by the Administrators by the joint affidavit by both sworn on the 5.7.2021. In that affidavit the Petitioners contended and termed the application misplaced in law and an abuse of the court process on the basis that the petition was initiated by the Objectors with full facts of their beneficial interests and that the claim sought by the Objectors is live and due for determination by this court when it addresses the pending application for confirmation of grant to the Petitioners and that it remains the duty of the court to determine legal disputes in an expeditious, just and proportionate manner. It was concluded that the grounds advanced do not suffice to stay the proceedings and that the issues regarding the estate of Shem Alusiola Musindani ought not to be brought into the estate of Joseph Manyoni Musindani.
6.I read the Petitioners not to grandstand that the Objectors have no beneficial interest in the estate. I hear them to say at paragraph 5 and 6 of the Replying Affidavit that the share due to the Objectors can in fact be dealt with at the point of distribution. My appreciation of that position taken by the Petitioners is that this is a matter that can be settled by mediation. If it can be handled by mediation then there would be no need to stay the proceedings for such mediation may in effect resolve even the dispute before the Environment and Land Court.
7.For that reason it is directed that this matter be referred to Court Annexed Mediation. Let the Mediator complete the process and file a report within forty five (45) days from today.
8.Mention on 6.12.2022 to confirm progress made.
DATED, SIGNED AND DELIVERED IN OPEN COURT THIS 1ST DAY OF NOVEMBER, 2022.PATRICK J. O. OTIENOJUDGEIn the presence of:No appearance for the PetitionersNo appearance for the ObjectorsCourt Assistant: Polycap Mukabwa
