In re Estate of Adriano Welikhe Muliali (Deceased) [2022] KEHC 14162 (KLR)

In re Estate of Adriano Welikhe Muliali (Deceased) (Succession Cause 153 of 2011) [2022] KEHC 14162 (KLR) (5 October 2022) (Ruling)

Neutral citation: [2022] KEHC 14162 (KLR)

Republic of Kenya

In the High Court at Bungoma

Succession Cause 153 of 2011

SN Riechi, J

October 5, 2022

N THE MATTER OF THE ESTATE OF ADRIANO WELIKHE MULIALI-DECEASED LUKAS WAMALWA WELIKHE...................................1ST PETITIONER VERSUS EUNICE NASIMIYU MUMARAKI................2ND PETITIONER/APPLICANT

Ruling

1. The court delivered its judgement in the matter on May 29, 2020 distributing the estate as follows;1. Lukas Wamalwa Welikhe- 2 acres2. Eunice Nasimiyu Mumaraki and her daughter Susan Nanjala Welikhe-2 acres.

2. By an application dated April 16, 2021 Eunice Nasimiyu Mumaraki seeks prayers that; she be authorized to sign the relevant transfer documents to transfer to each beneficiary a share, in the alternative, the deputy registrar of the court does sign the transfer documents on behalf of the 1st petitioner, the land surveyor Bungoma county does visit the suit parcel for purposes of subdividing the parcel in line with the certificate of confirmation of grant and finally that she be awarded costs.

3. The application is premised on the grounds inter alia that the certificate of confirmation has not been implemented due to resistance and hostility from the 1st petitioner despite several attempts by her.

4. The 1st petitioner equally filed an application dated June 2, 2021 seeking orders of stay of execution of the judgement rendered herein pending the hearing and determination of an intended appeal. The application is premised on the fact that he intends to challenge the judgement and due to hardship in obtaining the proceedings, he has been unable to lodge his appeal and that he has since filed a notice of appeal.

5. By directions of the court, both applications were heard together and parties ordered to file their respective written submissions. The same are on record and have been given due consideration.

6. In light of the 2 applications coming up for consideration, the issue arising for determination is which orders ought to be issued in the circumstances.

7. It is not in doubt that the court rendered itself on the matter through the judgment alluded to in the opening paragraph. The same has not been overturned either on appeal or by way of review and the same stands. From the 1st petitioner’s application, he lodged a notice of appeal in this court and received in the registry on June 9, 2020. There seems to be no step taken after that save for copies of correspondence to the deputy registrar requesting for proceedings even though the same bear no stamp denoting the date of receipt.

8. I have considered both applications and the response thereto as well as the parties’ written submissions and the authorities cited and come to the conclusion that the 1st petitioner’s application is lacking in merit for the reason that if he indeed intended to appeal against the judgement, he ought to have shown proactive steps taken to prosecute his appeal. I have also concluded that his application was prompted by the 2nd petitioner’s application considering that a period of 2 years had lapsed from the date of judgement.

9. On the 1st petitioner’s application, I find no plausible reason advanced by the 1st petitioner why the orders ought not to be granted. For the reason that the judgment has not been set aside, I find the application dated April 16, 2021 is merited and is hereby allowed in the following terms.1. The 1st petitioner Lukas Wamalwa Welikhe is hereby ordered to execute the instruments of transfer within 14 days from the date of presentation at his advocate’s chambers.2. In default of 1 above, the deputy registrar of the court is directed to execute the relevant instruments of transfer upon presentation after the lapse of the period stated in paragraph 1 above.3. The land surveyor Bungoma county is hereby directed to visit the subject parcel of land East Bukusu/east Sang’alo/50 for purposes of conducting survey works in compliance with the certificate of confirmation of grant dated September 24, 2020 and prepare the necessary forms to facilitate transfer.4. This being a family matter, each party shall bear its own costs.

DATED AT BUNGOMA THIS 5TH DAY OF OCTOBER,2022. S.N. RIECHIJUDGE