David Mbalu, Alice Mbalu & John Nzunza Mbalu v Peter Mbalu, Nzisa Mbalu, Kyalo Mbalu, Ndambo Mbalu, Mutungi Mbalu & Nduku Mbalu [2013] KEHC 2848 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MACHAKOS

SUCCESSION CAUSE NO. 767  OF 2007

IN THE MATTER OF THE ESTATE OF MBALU NZUNZA (DECEASED)

DAVID MBALU

ALICE MBALU

JOHN NZUNZA MBALU ....................... PETITIONERS/APPLICANTS

VERSUS

PETER MBALU

NZISA MBALU

KYALO MBALU

NDAMBO MBALU

MUTUNGI MBALU

NDUKU MBALU  ……………….………  BENEFICIARIES/RESPONDENTS

R U L I N G

Following a filing of the Summons for confirmation of grant by the 2nd Petitioner, Alice Mbalu, the 1st Petitioner, David Ndambo and the 3rd Petitioner John Nzunza filed an affidavit sworn on 23/4/2012 on their preferred mode of distribution pursuant to the court’s directions given on 28/2/2012.

The 2nd Petitioner also filed an affidavit sworn on 26/4/2012 giving her proposal on distribution.

The 1st and 3rd Petitioner filed an affidavit sworn on 2/5/2012 pursuant to leave granted by the court on 27/4/2012.  The 2nd Petitioner filed a further affidavit sworn on 22/5/2012. The 1st and 3rd Petitioners filed a further affidavit sworn on 25/7/2012 pursuant to leave granted by the court on 20/7/2012. The beneficiaries thereafter embarked on out of court negotiations but the same did not bear any fruit.

On 11/2/2013, there was a consent that the court do proceed to rule on the question of distribution based on the affidavit evidence on record.  Prior to the ruling date, counsel for 1st and 3rd Petitioner wrote to court stating that the aforestated consent was recorded in error as no directions had been taken as provided for under rule 40 (6) & 41 of the Probate and Administration Rules.

To my mind, once the parties agreed to proceed by way of affidavit evidence and the court ordered accordingly, there were no other directions required.  The directions were that the distribution was to proceed by way of affidavit evidence.

However, it has now turned over that the 1st and 3rd Petitioner prefer to proceed by way of viva voce evidence. There being no consent on distribution and taking into account that there is no consensus on proceeding by way of affidavit evidence, the matter ought to proceed for directions as provided for under rule 40 (8) of the Probate and Administration Rules.

Consequently, directions are hereby given for the matter to proceed by way of viva voce evidence.

………………………………………

B. THURANIRA JADEN

JUDGE

Dated and delivered at Machakos this 18thday of July 2013.

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B. THURANIRA JADEN

JUDGE