In re Estate of Grace Wanjiru Mucheru (Deceased) [2023] KEHC 25306 (KLR)

In re Estate of Grace Wanjiru Mucheru (Deceased) (Succession Cause 308 of 2014) [2023] KEHC 25306 (KLR) (16 November 2023) (Ruling)

Neutral citation: [2023] KEHC 25306 (KLR)

Republic of Kenya

In the High Court at Kitale

Succession Cause 308 of 2014

AC Mrima, J

November 16, 2023

Between

Peter Mucheru Gitau

1st Petitioner

Hezekiah Maina

2nd Petitioner

Stanley Mucheru

3rd Petitioner

and

Isaac Ndungu Mucheru

Objector

Ruling

Background: 1. Peter Mucheru Gitau, Hezekiah Maina and Stanley Mucheru, the 1st, 2nd and 3rd Petitioners herein respectively are grandsons of Grace Wanjiru Mucheru, the deceased in this cause. Their fathers were among the children of the deceased just like the Objector herein, Isaac Ndungu Mucheru.

2. The Petitioners are also the Administrators of the estate of the deceased herein courtesy of a Grant of Letters of Administration Intestate issued on 14th July, 2015.

3. On 22nd April 2021, the grant was confirmed and a Certificate of Confirmation of a Grant accordingly issued.

4. The Objector was disgruntled and a week later he challenged the issuance of the Grant vide a Summons for Revocation and Annulment of the Grant dated 29th April 2021. That is the application subject of this ruling.

The Application: 5. The application which was supported by the Objector’s Affidavit deposed to on a similar date, principally sought to revoke the Grant and the Certificate of Confirmation of Grant issued to the Petitioners.

6. The application was anchored on Sections 47 and 76 of the Law of Succession Act and Rules 44(1) and 73 of the Probate and Administration Rules. It sought the following reliefs: -a.Spentb.That the Grant of Letters of Administration intestate issued on the 14th Day of July 2015 and confirmed on 22nd April 2021 be revoked and or annulled.c.That a temporary order of injunction do issue restraining and or stopping the Petitioners/ Respondents their agents, assignees from disposing, wasting, or intermeddling or in any way dealing with the estate of Grance Wanjiru Mucheru (deceased) more particularly Land Title No. Trans-Nzoia/Kosprin/21 pending the hearing and determination of this summons.d.That cost of this application be borne by the Petitioners/Respondents.

7. The Objector sought the revocation on the grounds that the Petitioners were strangers to the estate of the deceased and had obtained the Grant of Letters of Administration Intestate fraudulently and by concealment of material facts.

8. It was his case that the Petitioners failed to disclose their relationship to the deceased and to whom the Estate related to and that they did not avail information to the rightful beneficiaries and neither did they get consent of all beneficiaries and dependants of the Estate of the deceased.

9. He stated that the Petitioners failed to disclose the fact that they are the grandchildren of the deceased and their fathers, who were the Objector’s brothers, had been given their share at a place called Kamoi by the deceased where they settled with their families.

10. The Objector asserted that he is the surviving son to the deceased and, therefore, he should have been appointed as the Administrator of the Estate.

11. It was his case that he has been in occupation of the land purported to be distributed by the Petitioners herein and according to Kikuyu Customary Law and Customs, being the last born, he is supposed to remain on the land where his mother was buried.

12. In his affidavit, the Objector further deposed that he only came to learn of the proceedings in this cause when he was served with a Notice for the hearing of an application for the confirmation of the Grant. That, he attended Court, but due to his disability he arrived when the Grant had already been confirmed.

13. On the foregoing, the Objector urged that the Grant issued to the Petitioners be revoked and that he be appointed the rightful Administrator of the deceased’s estate.

The Oral Evidence: 14. On this Court’s directions, the application was heard by way of viva voce evidence. The Objector was the only one who testified in support of his case.

15. In his testimony in Court, it was the Objector’s evidence that the deceased was blessed with 7 children who were Wairimu (alive), Gitau (deceased), Mwangi (deceased), Kamau (deceased), Muchiri (deceased), Isaac Ndungu (himself) and Wanjiru (deceased). That, so far two of the children of the deceased were still alive.

16. He stated that the 1st Petitioner was the son of Gitau, the 2nd Petitioner was the son of Mwangi, and 3rd Petitioner was the son of Muchiri. He also stated that Kamau was not blessed with any children.

17. It was his evidence that he learnt of the case on 19th March, 2021 when he was summoned to attend Court and after he had previously declined to sign the consent in respect of these proceedings.

18. It was his further evidence that Kamau had 6¼ acres of land at Kamoi-Cherang’any and that the family of Muchiri was previously cultivating that land. He further testified that the deceased settled Mwangi and Muchiri on that land as Kamau and his family acquired their own land elsewhere and moved out.

19. It was the Objector’s evidence that Muchiri also personally acquired his own land in Endebes and moved out of the land in Kamoi as well. He left Mwangi and his family on that land.

20. He also stated the deceased and Gitau’s wife acquired a parcel of land at Moi’s Bridge and that the deceased then settled Gitau and his family thereat.

21. It was his further testimony that the deceased bought another piece of land measuring about 6½ acres for Gitau and which land, Gitau later settled his children who reside thereon to date.

22. Having settled all her sons, the deceased then settled on the disputed land in Kosprin, the Objector testified.

23. It was his evidence that the deceased settled him on the land at Kosprin and that none of his siblings resided there and had any issues during the life of the deceased.

24. The Objector then testified that as the last born, and who was settled on the land and lived with his mother until her death, he was entitled to his mother’s said land. He reiterated the position that none of the grandchildren of the deceased should lay any claim on the disputed land on the basis of inheritance since their parents were duly settled elsewhere by the deceased during her lifetime.

25. He faulted the Petitioners for petitioning the Court with the misleading information that the deceased, at the time of her death, had no surviving child alive yet he was alive.

26. On cross-examination, it was the Objector’s evidence that he had lived on the land in issue for more than 30 years, has been paying rates and that he is still paying the Settlement Fund Trustee loan.

27. It was also his evidence that he sold half an acre of the land to aid his medical fees.

28. On account of the foregoing, the Objector posited that he was not ready to have the land re-distributed.

29. On being asked why his brother Muchiri and the wife of Paul Chege were buried on their mother’s land at Kosprin and not at their respective homes, the Objector stated that it was out of good faith.

30. The Objector vehemently denied the allegation that the deceased distributed the land in issue among her four children prior to her death.

31. In the end, the Objector asserted that if the Petitioners were adamant on having the land, all the land should be put on the table and distributed afresh.

The Submissions: 32. The Objector filed his written submissions dated 20th January 2023. He identified the only issue as whether he had established the requirements to warrant revocation of the Grant issued the Petitioners.

33. In reference to Section 76 of the Law of Succession Act, it was the Objector’s submission that apart from failing to notify him of the succession process, the Petitioners also failed to disclose to the Court that the deceased was survived by daughters and one of them was still alive.

34. It was his case that the process was not in tandem with the Rule 26 of the Probate and Administration Rules that prohibit the Grant of Letters of Administration without notice to every person entitled to the same degree as or in priority to the Applicant.

35. It was further his submission that under Section 66 of the Law of Succession Act, he ought to be the Administrator of the deceased’s estate as he ranked high in priority.

36. To buttress his case, the Objector relied on In Re Estate of Magangi Obuki (Deceased) (2020) eKLR where the Court stated that: -From a reading of section 66 of the Law of Succession Act, the person given priority over an intestate is the surviving spouse and children. In the is case since the Spouse was not alive the children of the deceased had priority to Petition the Court for Letters of administration.

37. In conclusion, the Objector urged the Court to revoke the Grant and the resultant Certificate of Grant issued to the Petitioners and that he be appointed as the rightful Administrator.

The Petitioners’ case: 38. The Petitioners strenuously opposed the application through the Replying Affidavit of Peter Mucheru Gitau, the 1st Petitioner/Administrator herein, deposed to on 25th June, 2021.

39. It was their case that the application was brought in bad faith and that the allegation that they obtained the grant fraudulently and/or by concealment of material facts was utterly false.

40. He deposed that all other beneficiaries consented to the issuance of the confirmation except the Objector who despite being invited to attend Court on 22nd April 2021 failed to turn up.

41. It was their case that the allegation that the deceased had land at Kamoi which he gave to their parents was also false.

42. It was further their case that the it is not the customary law of the Kikuyu that the disputed land be given to the Objector to the exclusion of the other beneficiaries which in any case such law would be repugnant to justice and morality.

43. He deposed that the deceased’s estate was distributed fairly and the Objector was given a fair share equal to that of his deceased’s siblings.

The Oral Evidence: 44. During examination-in-chief, the 1st Petitioner reiterated the fact that the Objector was involved in the succession process from inception, but refused to sign the consent. It was his case that they tried to involve the Objector all through the process by involving the Area Chief, but the Objector declined to honour the summons and to receive Court documents.

45. It was his evidence that the deceased had only one parcel of land, known as Trans-Nzoia/Kosprin/21 which was divided equally among the four children of the deceased, each getting 1. 25 acres.

46. The 1st Petitioner claimed that he was not aware of any other parcel of land owned by the deceased neither was he aware of any settlement of the Petitioners’ fathers by the deceased either as alleged by the Objector or otherwise.

47. On cross-examination, it was the 1st Petitioner’s case that his father had two wives. His mother, now deceased, was the first wife who bore 7 children but the 2nd wife never bore any children and that their land in Moi’s Bridge was bought by his late father, not by the deceased.

48. It further stated that the allegation of prior settlement of the deceased’s children was false and aimed at disinheriting the other lawful beneficiaries.

49. The Petitioners claimed that the Objector was living on the deceased’s estate since his release from prison in 1984 and that he won’t allow anyone to do anything on it.

50. On re-examination, it was his case that the land he is living on in Moi’s Bridge was his father’s not the deceased’s.

The submissions: 51. In the written submissions dated 20th February 2023, the Petitioners faulted the Objector’s conduct in the matter by stating that since 22nd April 2021, when the Petition for Grant of Letter so Administration was scheduled for hearing, he never objected to the process until 24th January 2023, two years later.

52. It was his submission that equity aids the vigilant not the indolent and the prolonged unexplained inaction was unjustified. Reference was made to Rule 40(8) of the Probate and Administration Rules that requires, in mandatory terms, that where no affidavit of protest has been filed the summons and affidavit shall without delay be placed by the before the Court by which the grant was issued.

53. The Petitioner submitted that they complied with the requirement stipulated in Rule 26(a) and (2) of the Probate and Administration Rules on the aspect of consent.

54. The Petitioners found support in Re Estate of Mukuru Maigua (Deceased) (2008) eKLR where it was observed: -As it is clear from that rule consent is required when a party is not in attendance at the time of confirmation of grant. In our case Maigua was present and at that time had not filed an affidavit in protest. Maigua’s ground 1 is rejected.

55. On whether the Objector met the threshold for revocation of the Grant, it was submitted that he was vague and insincere since he knew of the proceedings.

56. The Petitioners cited the authority in Re Estate of Peter Nyaga Muchunguri (Deceased) (2021) eKLR where it was observed: -It is my considered view that the grant issued by this Court to the Respondents cannot be revoked on these grounds. The grounds relate to confirmation of grant as opposed to issuance of the grant itself. In re Estate of Prisca Ong’ayo Nande (decease) and which authority I find persuasive, Musyoka J. found that section 76 of the Law of Succession Act provides only for revocation of grant and not certificate of confirmation of grant and that a person who is aggrieved by the orders made with respect to a confirmation application which are encapsulated in the certificate of confirmation of grant has no remedy under section 76 of the Law of Successions Act for that provision does not envisage revocation of certificate of confirmation of grants. The recourse available for such a person under general civil law is either to appeal or to review or apply for setting aside or vacating of confirmation orders where the same were obtained through abuse of process.

57. In the end, the Petitioners submitted that the application was bad in law, incompetent, premature and abuse of Court process and should be dismissed with costs.

Analysis: 58. The foregoing appreciation of the parties’ respective cases brings forth a discussion as to whether application be allowed.

59. Since the application sought the revocation of the grant, the guiding law is Section 76 of the Law of Succession Act. The provision states as follows: -A grant of representation, whether or not confirmed, may at any time be revoked or annulled if the court decides, either on application by any interested party or of its own motion-a.that the proceedings to obtain the grant were defective in substance;b.that the grant was obtained fraudulently by the making of a false statement or by the concealment from the court of something material to the case;c.that the grant was obtained by means of an untrue allegation of a fact essential in point of law to justify the grant notwithstanding that the allegation was made in ignorance or inadvertently;d.that the person to whom the grant was made has failed, after due notice and without reasonable cause either—i.to apply for confirmation of the grant within one year from the date thereof, or such longer period as the court order or allow; orii.to proceed diligently with the administration of the estate; oriii.to produce to the court, within the time prescribed, any such inventory or account of administration as is required by the provisions of paragraphs (e) and (g) of section 83 or has produced any such inventory or account which is false in any material particular; ore.that the grant has become useless and inoperative through subsequent circumstances

60. In this case, it is the Objector’s position that the Grant was obtained fraudulently by the making of false statements and/or by the concealment from the Court of material facts. That, he was not involved in the process and that the deceased had fully settled all her sons before her demise.

61. It is those two issues, therefore, which this Court will deal with in deciding on whether the application is merited.

62. The Court will deal with both issues together.

63. It was alleged that the Petitioners did not disclose that they were grandsons to the deceased and that the deceased had a son, the Objector herein.

64. Having perused the record, the issue ought not to be belaboured. The Petitioners disclosed that they were petitioning for the grant as grandchildren. The Petition, Form P & A 80, stated as much. Further, it was stated in paragraph 4 of the Petition that the Objector was a son to the deceased.

65. There was also the Chief’s letter that was filed together with the Petition. It correctly stated the relationship between the Petitioners and the Objector to the deceased.

66. In fact, both the Petition and the Chief’s letter disclosed the children and grandchildren of the deceased.

67. The issue of non-disclosure, therefore, fails.

68. There was the contention that the Objector was not made aware of the proceedings. This sub-issue has two limbs. The first one is whether the Objector took part in the process towards obtaining of the Grant, and the second limb, is whether the Objector participated in the confirmation proceedings.

69. On whether the Objector took part in the process towards obtaining of the Grant, there is no evidence to that end. The Objector did not sign the Consent in Form 38. No evidence at all was tendered to disprove the position other than the allegation that the Objector was involved at the family level and was even summoned by the Chief, but declined.

70. Whereas such allegations are serious and would have aided this Court going forward, they remained unproved.

71. As to whether the Objector participated in the confirmation proceedings, the Objector himself admitted having been served with the Court process and was aware of the proceedings. He stated that he attended Court, but arrived late. That was on 22nd April, 2021.

72. The Court was satisfied that Objector was duly served, but was not in Court, and proceeded to confirm the grant and to distribute the estate property.

73. The Objector stated that he arrived in Court late. The Objector, however, did not state the efforts he made to register his late arrival in Court. Not even an attempt to have the matter be placed before the Judge or the Deputy Registrar was made.

74. The Objector was, therefore, accorded an opportunity to be heard and to present his objection. That was in line with Article 50(1) of the Constitution. He, however, opted not to utilize it.

75. Be that as it may, the objection was eventually heard in the instant application.

76. One of the issues in the objection, and of course the main one, was that the rest of the sons of the deceased were separately settled way before the demise of the deceased and as such their children, whom some are the Petitioners herein, have no claim over the estate property.

77. Indeed, Section 42 of the Laws of Succession Act provides for consideration of previous benefits made by a deceased to beneficiaries to be taken into account in the final distribution of the estate. Therefore, in the event this Court finds favour with the Objector’s position, then that will, definitely, be a turnaround in this matter.

78. The objection proceedings were by way of viva voce evidence.

79. The conduct of viva voce hearings in succession matters is guided by various laws. For instance, the Evidence Act applies to matters generally relating to evidence. The Evidence Act is clear on its application to succession matters in Section 2 thereof. The provision provides as follows: -1. This Act shall apply to all judicial proceedings in or before any Court other than a Kadhi’s Court, but not to proceedings before an arbitrator.2. Subject to the provisions of any other Act or of any rules of Court, this Act shall apply to affidavits presented to any Court.

80. Sections 107(1), (2) and 109 of the Evidence Act are on the burden of proof. They state as follows:107(1) Whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist. 2. When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person.and

109. Proof of particular factThe burden of proof as to any particular fact lies on the person who wishes the Court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person.

81. The issue of the burden of proof has two facets. There are the legal burden of proof and the evidential burden of proof.

82. The legal burden of proof is what the law provides. For instance, in this case, Sections 107 and 109 of the Evidence Act places the burden of proof on a particular party. That is the legal burden of proof.

83. The legal burden of proof, therefore, remains on the party which initiated the proceedings throughout the case.

84. On the other hand, there is the evidential burden of proof. This legal principle was discussed in Bungoma High Court Election Petition No. 2 of 2017 Suleiman Kasuti Murunga vs. IEBC & 2 Others (2018) eKLR as under: -26. The Petitioner on whom the legal burden of proof lies may or may not adduce sufficient and admissible evidence in proof of any of the allegations in the Petition. On one hand, if no sufficient evidence is adduced to the required standard, then the allegation(s) fail and it all ends there. On the other hand, if evidence is adduced to the satisfaction of the Court that an election ought to be impugned, then it becomes the burden of the Respondent(s) to adduce evidence rebutting the allegations and to demonstrate that the law was complied with and/or that the irregularities did not affect the result of the election. At that point the burden is said to shift to the Respondents. That is the evidential burden of proof.27. The principle of ‘evidential burden of proof’ is hence anchored on the rebuttable presumption of validity of election results. That, until and unless a Petitioner discharges the evidential burden of proof an election is presumed valid. It is on that background that the Court in Singh vs. Mota Singh & Another (2008) 1 KLR 1stated that an election is a matter of public importance not to be lightly set-aside and in the case of Jeet Mohinder Singh vs. Harminder Singh Jassi, AIR 2000 SC 258the Supreme Court of India stated that ‘the success of a candidate who has won at an election should not be lightly interfered with…Any person seeking such interference must strictly conform to the requirements of the law….’.28. The Supreme Court in the 2017 majority judgment had the following to say on the evidential burden of proof in paragraphs 132 and 133 thereof as follows: -(132)Though the legal and evidential burden of establishing the facts and contentions which will support a party’s case is static and “remains constant through a trial with the plaintiff, however, “depending on the effectiveness with which he or she discharges this, the evidential burden keeps shifting and its position at any time is determined by answering the question as to who would lose if no further evidence were introduced.(133)It follows therefore that once the Court is satisfied that the petitioner has adduced sufficient evidence to warrant impugning an election, if not controverted, then the evidentiary burden shifts to the respondent, in most cases the electoral body, to adduce evidence rebutting that assertion and demonstrating that there was compliance with the law or, if the ground is one of irregularities, that they did not affect the results of the election. In other words, while the petitioner bears an evidentiary burden to adduce ‘factual’ evidence to prove his/her allegations of breach, then the burden shifts and it behoves the respondent to adduce evidence to prove compliance with the law….29. It therefore follows that the legal burden of proof is static and rests on the Petitioner throughout the trial. It is only the evidential burden of proof which may shift to the Respondents depending on the nature and effect of evidence adduced by a Petitioner.

85. Therefore, unlike the legal burden proof which is static, the evidential burden of proof keeps on shifting depending on the evidence tendered.

86. Apart from aspect of the burden of proof, there is also the standard of proof. Succession matters are civil in nature and the standard of proof is always on ‘the balance of probabilities’ (See Raila Amolo Odinga & another v Independent Electoral and Boundaries Commission & 2 others [2017] eKLR).

87. Returning to the issue at hand, the Objector pleaded that the deceased settled all her sons prior to her demise. In that case, the legal burden of proof rested on him throughout whereas the evidential burden would only shift to the Petitioners once sufficient evidence has been tendered by the Objector.

88. The Objector was the only one who testified in support of his case. Apart from referring to some of the documents which form part of the record herein, the Objector did not adduce any other documentary evidence in support of the allegation on prior settlement of the deceased’s children. There was also no other witness who would buttress the Objector’s contention.

89. The Petitioners contended that their fathers lawfully acquired the parcels of land on which they live to date and not the deceased and that such parcels of land were never registered in the deceased’s name or at all. They challenged the Objector to prove otherwise.

90. As said, apart from the oral and uncorroborated testimony on the issue of settlement of the deceased’s sons, the Objector did not avail any evidence in proof of how the deceased acquired the other parcels of land and eventually had them registered in the names of the Petitioners.

91. To this Court, therefore, the Objector did nothing to prove his case. The Objector gave bare allegations which would not form any evidential basis as to shift the incidence of proof to the Petitioners. Since the Objector failed to shift the evidential proof to the Petitioners, then even if the Petitioners said nothing in rebuttal, still the Objector’s case would not have succeeded.

92. The upshot is that the Objector failed to prove that the deceased settled her sons elsewhere prior to her death.

93. Having found as much, this Court remains alive to the provision of Section 38 of the Law of Succession Act which guide the distribution of estates among the children of a deceased. That was the basis of the equal distribution as proposed by the Petitioners, accepted to by the rest of the beneficiaries and eventually adopted by the Court.

94. There is, however, no doubt that the Objector was entitled to a share of the estate. Further, as a son, he was also entitled to petition for the Grant. Equally, the Petitioners ought to have a space in the administration of the estate courtesy of their fathers who were also the sons of the deceased, hence, at par with the Objector.

95. The Grant was confirmed and the estate property distributed over 2 years ago. The Objector was allocated an equal share just like his other siblings. The Administrators must have taken steps to effect the transfer.

96. What the Objector will undertake once he becomes an Administrator of the estate is to complete the exercise, if not yet. To this Court, there is no harm in the Objector joining the rest of the Administrators in executing the Certificate of confirmation of the Grant. The Objector will become the 4th Administrator in the instant estate.

97. This Court now finds and hold that the Grant of Letters of Administration Intestate be amended to include the Objector as a Co-Administrator.

98. The Court further find no basis of disturbing the distribution in situ. Any party wishing to challenge that distribution remains at liberty to do so without the necessity of applying for the revocation of the grant unless on sufficient grounds.

99. As the matter comes to an end, there is an issue which was also raised by the Objector which the Court wishes to respond to. The Objector submitted that one of the daughters of the deceased who is still alive was not involved in this matter and no allocation of her share of the estate was made to her.

100. The alleged daughter to the deceased was one Wairimu. However, the Objector did not capture that issue anywhere in his application. Not even the Affidavit deposed anything to do with Wairimu.

101. The issue was taken up by the Objector during the submissions stage. The position in law that, in an adversarial system of litigation any evidence which does not support the pleadings is for rejection, is well settled. The position was reiterated by the Court of Appeal in Independent Electoral and Boundaries Commission & Ano. vs. Stephen Mutinda Mule & 3 others (2014) eKLR which decision cited with approval the decision of the Supreme Court of Nigeria in Adetoun Oladeji (NIG) vs. Nigeria Breweries PLC SC 91/2002 where Sylvester Umaru Onu, JSC stated that: -It is settled law that parties are bound by their pleadings……the court below was in error when it raised the issue contrary to the pleadings of the parties.

103. Adereji, JSC in the same case expressed himself thus on the importance and place of pleadings: -…...it is now trite principle in law that parties are bound by their pleadings and that any evidence led by any of the parties which does not support the averments in the pleadings, or put in another way, which is at variance with the averments of the pleadings goes to no issue and must be disregarded………In fact, that parties are not allowed to depart from their pleadings is on the authorities basic as this enables parties to prepare their evidence on the issues as joined and avoid any surprises by which no opportunity is given to the other party to meet the new situation.

104. The Supreme Court of Kenya as well agreed with the above legal position in a ruling in Raila Amolo Odinga & Another vs. IEBC & 2 others (2017) eKLR.

105. It now follows that the contention by the Objector based on Wairimu cannot hold. At its best, the allegation was an afterthought and was raised in fragrant disregard to settled law and rules of procedure. The contention is hereby rejected.

106. This Court believes that it has dealt with all the issues raised in the application.

107. Lastly, this Court wishes to profusely apologize to the parties for the late delivery of this decision. It was unfortunate that the Court file was misplaced.

108. In the end, the Summons for Revocation dated 29th April, 2021 is hereby determined as follows: -a.The Objector herein, Isaac Ndungu Mucheru, is hereby appointed as the 4th Administrator of the estate herein.b.An Amended Grant of Letters of Administration Intestate and an Amended Certificate of Confirmation of the Grant shall forthwith issue to the extent of reflecting the Objector as a Co-Administrator of the estate.c.The Administrators shall immediately execute the transfer of the estate as decreed.d.This matter shall be fixed for a Mention for purposes of ascertaining the progress on the transfer on a date to issue.e.Since the dispute relates to family members, each party to bear their own costs.

109. It is so ordered.

DELIVERED, DATED AND SIGNED AT KITALE THIS 16TH DAY OF NOVEMBER, 2023. A. C. MRIMAJUDGEJudgment virtually delivered in the presence of:Miss. Rutto, Learned Counsel holding brief for Mr. Kisembe for the Objector.Mr. Songole, Learned Counsel for the Petitioners.Chemosop/Duke – Court Assistants.