In re Estate of The Late Manguu Kyululi (Deceased) [2022] KEHC 1374 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT MAKUENI

HIGH COURT SUCCESSION CAUSE NO. 252 OF 2017

IN THE MATTER OF ESTATE OF THE LATE MANGUU KYULULI (DECEASED)

BERNARD MUSYOKA NYALITI.......................................................................OBJECTOR

-VERSUS-

ONESMUS KYALO MUNGUTI..................................1STPETITIONER/1ST APPLICANT

CHARLES MWOLOLO MANGUU...........................2NDPETITIONER/2ND APPLICANT

FREDRICK MUTIE MATUMU..........................................3RDPETITIONER/APPLICANT

RULING

1. Before me is an application brought by way of Notice of Motion dated 5th March 2021, filed by the three petitioners through counsel Nzavi & company.

2. The application was filed under section 47 of the Law of Succession Act (cap.160) and Rule 73 of the Probate and Administration Rules, as well as Order 51 Rule 1 of the Civil Procedure Rules and seeks the following substantive order –

1) That there be a stay of proceedings in this matter pending the hearing and determination of Makueni ELC No. 113 of 2018 which is between the same parties and relates to the same subject property, Land Parcel No.  803, situated in Ngai adjudication section within Mbooni in Makueni County.

3. The application has grounds on the face of the Notice of Motion and is supported by an affidavit sworn on 5th March 2021 by Onesmus Kyano Munguti, one of the petitioners.

4. The application has been opposed through a replying affidavit sworn on 21st April 2021 by the objector/respondent Bernard Musyoka Nyaliti. It is deponed in the said affidavit that the proceedings in the Environment and Land court are on boundary dispute and not ownership and that the proceedings therein have been stayed pending the hearing of this application for revocation of grant.

5. The application proceeded by way of written submissions. The applicant’s counsel M.s Nzavi & company filed their submissions on 30/5/2021 and the objectors’/respondents’ counsel filed written submissions on 10/6/2021.

6. I note that in their written submissions, both counsel for the parties agreed that the consistent court decisions on such matters are generally that, stay of succession proceedings be granted pending determination of the Environment & Land Court in land ownership dispute cases that relates to alleged assets of the deceased.

7. I note further that the respondent has however, stated in the replying affidavit, that the ELC proceedings herein were stayed pending finalization of his application for revocation of grant, and has also emphasized this point in written submissions.

8. I agree that as a general rule, proceedings before the succession court should await a pending case on the ownership property subject to the estate, pending confirmation or revocation of grant.

9. In my view, the respondent having raised the issue of stay orders granted in the ELC court in the related proceedings, should have laid before this court evidence to support this claim. He did not do so.  Thus his claim holds no water.

10. On my part, I have seen the plaint in the ELC matter, and it appears to be a boundary dispute. Since the difference between a boundary dispute and an ownership dispute is thin and can have similar consequences, I will allow the application for stay of proceedings herein to await resolution of the dispute in the Environment and Land Court.

11. I thus allow the application and grant stay orders in this matter as requested but only for 12 months from today. Thus, the stay herein granted will automatically lapse after 12 months from today’s date.

12. The costs of the application will be in the cause.

Delivered, signed & dated this 17th day of March, 2022, in open court at Makueni.

………………………………….

George Dulu

Judge