In re Estate of Alex Makhanu Wamalwa (Deceased) [2017] KEHC 1886 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT BUNGOMA

SUCCESSION CAUSE NO.28 OF 2005

IN THE MATTER OF THE ESTATE OF ALEX MAKHANU WAMALWA …………(DECEASED)

AND

GEORGE WAFULA MAKHANU…………………………........…………………….PETITIONER

VERSUS

BENSON WANJALA MAKHANU……………………......…………………1ST RESPONDENT

AUGUSTINE WABWILE WAFULA…………………….........……………..2ND RESPONDENT

JUDGEMENT

1. The deceased herein Alex Makhanu Wamalwa died on the 26th of June, 2004 at Lumboka and was survived by 2 widows and several children.

2. The family appointed his eldest son George Wafula Makhanu to apply for grant of letters of administration in order to distribute his estate.

3. George Wafula moved this Court for grant of representation on 31st May 2005.  In his Petition he did not reflect all beneficiaries of the estate and only  gave his name as the only survivor.  He listed 4 properties as assets namely;

i. L.R. No. W. Bukusu/S. Mateka/2907

ii. L.R. No. W. Bukusu/S. Mateka/1801

iii. L.R. No. W. Bukusu/S. Mateka/2961

iv. L.R. No. W. Bukusu/S. Mateka/2901

4. A grant was subsequently issued on the 12th of July, 2005

5. On the 28th of September 2005 the Objector’s herein Benson Wanjala Makhanu and Augustine Wabwile Wafula sought for revocation and amendment of the said grant on grounds that names of beneficiaries were left out and their consents were not obtained, further the Petitioner had also failed to disclose that one parcel being number 2569 had been sold to one Joseph M. Makokha.

6. According to the Court record nothing much was done after the objection was filed safe for requests for discussions.  The application appears to have remained in abeyance.  I will consider the same in this judgement alongside the objection towards distribution.

7. On the 30th of December, 2010 the Petitioner applied for confirmation of the grant and listed the assets for distribution as;

i. L.R. No. W. Bukusu/S. Mateka/2567

ii. L.R. No. W. Bukusu/S. Mateka/2568

iii. L.R. No. W. Bukusu/S. Mateka/2569

iv. L.R. No. W. Bukusu/S. Mateka/1801

v. L.R. No. W. Bukusu/S. Mateka/2960

vi. L.R. No. W. Bukusu/S. Mateka/2961

vii. L.R. No. W. Bukusu/S. Mateka/2962

8. He also proposed mode of distribution.  It is his mode of distribution that prompted the objection by both his son Augustine Wabwile and his brother Benson Wanjala Makhanu.

9. Benson Makhanu objected to property L.R. No. W. Bukusu/S. Mateka/2568 being included in the list of assets of distribution as the same was gifted to him inter vivos and already in his name.  Secondly that prior to his death the deceased was the registered owner of W. Bukusu/S. Mateka/2567 and had caused the same to be subdivided into two parcels 3592 and 3593 and had given one portion to the grandson Augustine.  He contended that at mutation an error occurred as the mutation was registered against L.R. No. W. Bukusu/S. Mateka/2569 in error and by a Court Order issued by consent of the parties cancelling the mutation on L.R. No. Bukusu/S. Mateka/2569 thus cancelling the subdivision erroneous registered against it.

10. That their father the deceased had sold L.R. No. W. Busuku/S. Mateka/2569 to one Joseph Mamai Makokha (deceased).

11. The widow of Joseph Mamai Makokha, supported the assertion in (10) above and stated further that her late husband had sold the said property to one Jairus Nyongesa Makhino in 2007.

12. On his part the 2nd Objector Augustine Wabwile son of the Petitioner contends that his grandfather gifted him a portion of W. Bukusu/S. Mateka/2567 measuring 1. 0Ha.  That his grandfather had obtained the Land Control Board caused mutation but an error occurred as the mutation was registered against L.R. No. Bukusu/S. Mateka/2569 as opposed to L.R. Bukusu/S. Mateka/2567.  His mother had separated with his father and hence the gift inter vivos.

13. On the 8th of June the Parties entered a consent on in relation on all other parcels of land and the dispute now is between the Petitioner and 2nd Objector; a father and son as regards L.R. No. W. Bukusu/S. Mateka/2567

14. From the record and the consent entered by the Parties on 8th of June, 2017 the deceased had before his death distributed his Estate.   The property in contention is what was meant to be given to the Petitioner and which the objector’s contend was divided between the Petitioner and his son the 2nd Objector.

15. The deceased appears to have been organized and having organized his estate before his demise.   And since his eldest son had an issue with the 2nd Objector his grandson;  he subdivided what was meant to go to the Petitioner so that his grandson had a portion of the land.  There is proof of this as the deceased appeared before the Land Control Board, obtained consent for subdivision and he caused a mutation which parties agree was wrongly registered.

16. I do not find the Petitioner’s assertion that he is not aware of the minutes of the Land Control Board or the consent issued thereafter to be truthful.

Indeed at the hearing he declined to answer questions put to him related to the two.  I also take note that he consented to the cancellation of erroneous registration of the mutation against L.R. No. W. Bukusu/S. Mateka/2569.

17. What comes out clearly is that the deceased did subdivide L.R. number W. Bukusu/W. Mateka/2567 into 2;  1. 0Ha and 1. 28Ha and he gave 1. 0Ha to his grandson what remains is 1. 28Ha and this is what the deceased left for the Petitioner.

18. Consequently therefore taking into account the consent order which I hereby adopt as the Order of this Court it is directed as follows

1. In order to bring this long outstanding matter to a closure the grant issued to Petitioner be and is hereby revoked in its place a fresh grant will issue in the names of Benson Wanjala Makhanu and Augustine Wabwile Wafula.

2. L.R. No. W. Bukusu/S. Mateka/2568 be omitted from the list of assets for distribution.

3. The Estate of the deceased be distributed forthwith as follows;

a. L.R. No. W. Bukusu/S. Mateka/2567George Wafula Makhanu Approximately 1. 28ha Augustine Wabwile Wafula Approximately 1. 0ha

b. L.R. No. W. Bukusu/S. Mateka/2569Jairus Nyongesa Makhini.

c. L.R. No. W. Bukusu/S. Mateka/2960Gilbert Makhanu

d. L.R. No. W. Bukusu/S. Mateka/2961Elias Mwangale Makhanu

e. L.R. No. W. Bukusu/S. Mateka/2962James Wabwire Wanyama

f.L.R. No. W. Bukusu/S. Mateka/1801Edwin Wabwile Makhanu and Kennedy Wafula Makhanu (minor) (share of the minor to be held in trust until he attains 18 years by Benson Wanjale Makhanu & Augustine Wabwile Wafula)

4. This being a family matter each party to meet his costs of the suit.

DATED and DEaLIVERED at BUNGOMA this 12th  day of   October,      2017

ALI-ARONI

JUDGE