In re Estate of Mbalanya Omwakwe (Deceased) [2019] KEHC 6106 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KAKAMEGA

SUCCESSION CAUSE NO. 569 OF 2014

IN THE MATTER OF THE ESTATE OF MBALANYA OMWAKWE (DECEASED)

AND

DR. ALICE OWANO MULUSA ....................................APPLICANT/RESPONDENT

VERSUS

MUSA MBALANYA ...............................................1ST RESPONDENT/APPLICANT

TOM MBALANYA ................................................ 2ND RESPONDENT/APPLICANT

BENSON MBALANYA ........................................3RD  RESPONDENT/APPLICANT

R U L I N G

1. The 2nd and 3rd respondents (the applicant herein have filed an application dated 17th May, 2019 seeking for orders that they be allowed to demolish/remove part of Equity Bank Building by 800 mm on L.R W. Bunyore/Ebusikhale/242 as directed by Kenya National Highways Authority (KENHA) before the expiry date of 31st September, 2019.  The application is premised on the grounds on the face of the application and is supported by the affidavit of the 3rd respondent/applicant.

2. The grounds in support therefore are that the applicants are some of the beneficiaries in the estate of the deceased herein.  That they constructed a business premises on the deceased’s land named above which premises is occupied by Equity Bank.  That the estate is yet to be distributed.  That they have been served with a notice by Kenya National Highways Authority to demolish part of the building that intrudes into a road reserve.  That they need an order of this court so that the other beneficiaries do not allege that they are interfering with the estate when they see them demolishing part of the building as directed by KENHA.

3.  The application was served on the other parties who are interested in the matter.  The application was opposed by Alice Owano Mulusa on the grounds that since the said premises forms part of the deceased’s estate it cannot be deformed at this stage.  That any dealing with the property ought to involve all the beneficiaries of the estate.  That the actions of the applicants or any other party to change the form of the estate amounts to intermeddling with the estate.  That KENHA has no authority to alter or demolish the building before finalization of the succession cause.  Therefore that the status quo should be maintained until the finalization of the ongoing succession cause.

4. I have considered the application and the objection thereto.  The applicants have annexed a notice from KENHA that has given them upto 31st September, 2019 to demolish part of the building that encroaches into a road reserve.  KENHA is a statutory body whose duty includes protection of roads from encroachment.  They have powers to demolish a building if their notice is not complied with.  There is thereby no substance in the objection by Alice Owano Mulusa.  The objection is thereby dismissed.

5. The application dated 17th May, 2019 is allowed as prayed with no order as to costs.

Delivered, dated and signed in open court at Kakamega this 4th day of July, 2019.

J. NJAGI

JUDGE

In the presence of:

No appearance for applicant/respondent

Miss Wilunda for respondents/applicants

Parties:

Applicant/respondent - absent

Respondents/applicants - absent

Court Assistant - George

Beneficiaries - absent

30 days right of appeal.