In re Estate of Elkana Mangúro Arot alias Elkana Mangúro (Deceased) [2020] KEHC 6169 (KLR) | Succession Distribution | Esheria

In re Estate of Elkana Mangúro Arot alias Elkana Mangúro (Deceased) [2020] KEHC 6169 (KLR)

Full Case Text

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KISUMU

SUCCESSION CAUSE NO. 1174 of 2014

IN THE MATTER OF THE ESTATE OF ELKANA MANGÚRO AROT alias

ELKANA MANGÚRO (DECEASED)

BETWEEN

MOSES AROT MANGÚRO......................................1STAPPLICANT/OBJECTOR

JACOB AWITI ONDIEK MANGÚRO ...................2NDAPPLICANT/OBJECTOR

THOMAS OLOO MANGÚRO ................................3RDAPPLICANT/OBJECTOR

AND

OTIENO JOHN MANGÚRO.................................. PETITIONER/RESPONDENT

JUDGMENT

1.  ELKANA MANGÚRO AROT alias ELKANA MANGÚRO (deceased)died sometimes on 24th June, 1996.

2.  The deceased wives TRUPHENA OTULA and PRISCA ADEYA are both deceased. Deceased was survived by the following:

1) Moses Arot Mangúro (Son)

2) Jacob Ondiek Mangúro (Son)

3) Thomas Oloo Mangúro (Son)

4) Lawrence Onyango Mangúro (Son)

5) Milton Ouru Mangúro (Son)

6) Joshua Opondo Mangúro (Son)

7) Otieno John Mangúro (Son)

8) Teresa Pamba (Daughter in law)

3.  The deceased owned four parcels of land as follows:

1) L.R. NO. KANYADA/KANYABALA/1021

2) L.R. NO. KANYADA/KANYABALA/1024

3) L.R. NO. KANYADA/KANYABALA/1239

4) L.R. NO. KANYADA/KANYABALA/1033

4. During his life time, the deceased caused was L.R. NO. KANYADA/KANYABALA/1033to be partitioned into 5 portions each measuring 1. 32 Ha, one for himself and the other four in the names of his sons as follows:

1) L.R. NO. KANYADA/KANYABALA/3365in deceased’s name

2) L.R. NO. KANYADA/KANYABALA/3366in the name of Oloo Mangúro

3) L.R. NO. KANYADA/KANYABALA/3367in the name of Joshua Opondo Mangúro

4) L.R. NO. KANYADA/KANYABALA/3368in the name of Milton Ouru Mangúro

5)  L.R. NO. KANYADA/KANYABALA/3369in the name of Ondiek Mangúro

5. Subsequent to deceased’s death, L.R. NO. KANYADA/KANYABALA/1021was on 10. 04. 17 transferred to the name of his son Lawrence Onyango Mangúro.

6.  Contrary to the 1st Objector/Applicant’s assertion that he bought L.R. NO. KANYADA/KANYABALA/1024,the Petitioner stated that the landPage 3 of 13belonged to the deceased and that he had on 08. 06. 79 caused it to be registered in the name of Musa Arot (1st Objector/Applicant) and Teresa Okolo w/o Pamba as evidenced by a search certificate and adjudication record marked PEXH. 7 (a) and PEXH. 7 (b).

7.  L.R. NO. KANYADA/KANYABALA/1024measuring approximately 4. 4 Ha was subsequently portioned into three portions L.R. NO. KANYADA/KANYABALA/3991measuring approximately 2. 67 Ha in the name of Teresa Okello Pamba; and L.R. NO. KANYADA/KANYABALA/3989 measuring approximately 0. 64 Ha and L.R. NO. KANYADA/KANYABALA/3990measuring approximately 1. 09 Ha in the name of Moses Arot (1st Objector/Applicant) which parcels he transferred to his sons.

8. The Petitioner stated although him and Moses Arot had settled on L.R. NO. KANYADA/KANYABALA/3365, he caused it to be transferred to his Page 4 of 13 sole name for the reason that that he was the only son that had not benefitted from his father’s estate. He conceded that upon obtaining the Certificate of Confirmation of Grant in the deceased’s estate, he caused NO. KANYADA/KANYABALA/3365to be partitioned into two portionsNO. KANYADA/KANYABALA/4261andNO. KANYADA/KANYABALA/4262 both in his name.

Analysis and Determination

9.   I have considered the objection vis-à-vis the evidence on record and submission filed on behalf of both parties.

10.  Since the dispute herein entirely relates to distribution of deceased’s estate, revocation of the letters of administration will in my considered view not serve any meaningful purpose and the prayer for revocation is declined.

11. It is on record that the deceased had during lifetime settled some of his property for the benefit of his children as follows.

1) L.R. NO. KANYADA/KANYABALA/3366in the name of Oloo Mangúro measuring approximately 1. 32 Ha

2) L.R. NO. KANYADA/KANYABALA/3367in the name of Joshua Opondo Mangúro measuring approximately 1. 32 Ha

3) L.R. NO. KANYADA/KANYABALA/3368in the name of Milton Ouru Mangúro measuring approximately 1. 32 Ha

4) L.R. NO. KANYADA/KANYABALA/3369in the name of Ondiek Mangúro measuring approximately 1. 32 Ha

12. Although Moses Arot (1st Objector/Applicant) alleges to have bought land parcel L.R. NO. KANYADA/KANYABALA/1024, the evidence on record contained in the adjudication record marked PEXH. 7 (b) demonstrates otherwise. I am therefore convinced on a balance of probability that L.R. NO. KANYADA/KANYABALA/1024forms part of the deceased’s estate.

13. The dispute herein is entirely between the Petitioner and the 1st Objector/Applicant and this court in considering whether or not the 1stObjector/Applicant is entitled to a share of L.R. NO. KANYADA/KANYABALA/3365will be guided by the provisions of Section 42 of the Law of Succession which provides as follows:

Where—

(a)  an intestate has, during his lifetime or by will, paid, given or settled any property to or for the benefit of a child, grandchild or house; or

(b) property has been appointed or awarded to any child or grandchild under the provisions of section 26 or section 35 of this Act, that property shall be taken into account in determining the share of the net intestate estate finally accruing to the child, grandchild or house.

14.  It is on record that out of L.R. NO. KANYADA/KANYABALA/1024, Moses Arot (1st Objector/Applicant) received two parcels L.R. NO. KANYADA/KANYABALA/3989measuring approximately 0. 64 Ha andL.R. NO. KANYADA/KANYABALA/3990measuring approximately 1. 09 Ha. This translates to 1. 73 ha which is 0. 41 Ha more than L.R. NO. KANYADA/KANYABALA/3365half a share of which he now claims.

15. There’s evidence that the dispute between the Petitioner and the 1stObjector/Applicant was adjudicated by the Land Registrar who on 14. 08. 13 directed that the 1st Objector/Applicant retains part of L.R. NO. KANYADA/KANYABALA/3365that he is in occupation of in exchange with an equal portion of L.R. NO. KANYADA/KANYABALA/1024 in favour of the Petitioner/Respondent.

16. On 06. 07. 16, the 1st Objector/Applicant in total defiance of the Land Registrar’s directions caused L.R. NO. KANYADA/KANYABALA/1024 to bepartitioned into three portions L.R. NO. KANYADA/KANYABALA/3991 measuring approximately 2. 67 Ha in the name of Teresa Okello Pamba; and L.R. NO. KANYADA/KANYABALA/3989 measuring approximately 0. 64 Ha and L.R. NO. KANYADA/KANYABALA/3990 measuring approximately 1. 09 Ha in his name.

17. In  a  further  bid  to  defeat  the  Petitioner’s  claim,  the  1stObjector/Applicant on 08. 07. 16 caused L.R. NO. KANYADA/KANYABALA/3989andL.R. NO. KANYADA/KANYABALA/3990to be transferred to his sons.

18.   Evidently, the 1st Objector/Applicant has not come to court with clean hands and whereas he wants the court to believe that he is the victim, the evidence on record discloses that he is in fact the aggressor.

19. There would be no justification, and it is not in the interest of justice that the 1st Objector/Applicant should benefit from his father’s estate more than any of his siblings and especially the Petitioner herein.

20. Having said that however, it is not disputed that the 1st Objector/Applicant and the Petitioner have both been in occupation of L.R. NO. KANYADA/KANYABALA/3365. It would therefore not be in the interest of justice to uproot the 1st Objector/Applicant from the said land parcel and that must have informed the Land Registrar’s decision when he directed that the 1st Objector/Applicant retains part of L.R. NO.KANYADA/KANYABALA/3365in exchange with an equal portion ofL.R.NO. KANYADA/KANYABALA/1024in favour of the Petitioner.

21. I entirely agree with the decision of the Land Registrar that the 1st Objector/Applicant ought to retain the portion he is occupying on L.R. NO.KANYADA/KANYABALA/3365in exchange with an equal portion ofL.R.NO.KANYADA/KANYABALA/1024in favour of the Petitioner/Respondent.

22.  Consequently, it is hereby ordered THAT:

a) The prayer for revocation of Letters of Administration issued to the Petitioner on 26thFebruary, 2015 is declined

b) The deceased’s family is directed to agree on the mode of distribution of L.R. NO. KANYADA/KANYABALA/1239 which is still in deceased’s name.

c) Pending further orders of this court, the Land Registrar, Homabay, is hereby directed to forthwith register a restriction against L.R. NO. KANYADA/KANYABALA/3989 and L.R. NO. KANYADA/KANYABALA/3990 upon service of this order by the Petitioner

d)  The Land Registrar, Homabay is further directed to ascertain the area of L.R. NO. KANYADA/KANYABALA/3365 occupied by OTIENO JOHN MANGÚRO and by MOSES AROT MANGÚRO and to file a report with the court within 30 days of service of this order by the Petitioner

e)  Mention on 15thJune, 2019, before the Deputy Registrar of this court to confirm filing of the Land Registrar’s report and for further orders

DATED THIS   14th  DAY OF  May  2020

T. W. CHERERE

JUDGE

This judgment has been delivered to the parties by electronic mail due to measures restricting court operations due to the COVID-19 pandemic and in the light of the directions issued by his Lordship, the Chief Justice vide Gazette Notice no. 3137 of 17thApril, 2020.