Jaban Murunga v Herman Murunga [2017] KEHC 1994 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT BUNGOMA

SUCCESSION CAUSE NO.64 OF 1998

RE:  ESTATE OF SIKUNYILI LUSIKE MULIA (DECEASED)

AND

JABAN MURUNGA.......................................PETITIONER

VERSUS

HERMAN MURUNGA...........APPLICANT/RESPONDENT

JUDGEMENT

1. This matter revolves around the estate of Shikunyili Lusike Mulia who died intestate leaving behind 5 daughters and two sons.

2. The daughters have not laid claim to the Estate in a matter that has been in Court for the last 19 years.

3. The deceased two sons are Jaban Wafula & Herman Okumu (deceased).  The deceased is said also to have given his nephew Stephen Wekunda Mulia(deceased) some portion of land.

4. The issue pending before Court is the distribution of the estate of the deceased known as East Bukusu/West Sang’ala 681.

5. The history behind this matter is that the parties had upon confirmation of the grant in 2000 divided the land into 3 portions 1498, 1499 and 1500 which sub division has since been revoked due to disagreements between the heirs and by their consent.

6. With consent of the parties a Surveyor was engage to visit the Estate and determine the actual position on the ground.  A report was thereafter filed in Court.

7. The Surveyor visited the site on 17th April 2015 in the presence of Jaban Wafula Murunga, Herman O. Murunga and William Wamalwa Wekunda (son of Stephen Wekunda).

The Surveyor noted that there were three distinct demarcated portions based on the earlier sub-divisions of 1498, 1499 and 1500. Occupation on the ground is as follows;

i) East Bukusu/W. Sang’alo/1498 approximately 25. 2 occupied by the family of Stephen Wekunda Mulia (deceased)

ii) East Bukusu/W. Sang’alo/1499 approximately 45 acres     occupied by Donald O. Shikunyuli and family.

iii) East Bukusu/W. Sangalo approximately 30. 17 acres occupied by Jaban Wafula Murunga and family.

8. Jaban Wafula in his submission on distribution proposes that as the 1st son of his father he should get 41 acres in line with Bukusu tradition where the eldest son gets a little more, his brother Herman Okumu (deceased) 40 acres and

Stephen Wekunda Mulia (deceased) – 19 acres

9. Donald Sikunyili son of Herman Okumu on his part proposed that distribution go in line with the earlier subdivision.

10. William Wamalwa Wekunda son of Stephen Wekinda Mulia states that the deceased gave his family 1498 which they have since divided among their family.  He seems to agree with Donald Sikunyili.

11. To begin with the Petitioner and his co-administrators by consent did away with the subdivisions 1498/1499 and 1500 and the title reverted to the original number East Bukusu/West Sangalo/681 and therefore any further reference to the same will be useless in terms of this succession cause.

12. It is not clear how the subdivision was arrived at and why Herman Okumu’s family ended up with a bigger share.  That is now water under the bridge because technically the titles were revoked and the whole portion is now up for distribution to the 3 known heirs.  2 sons and a nephew.  Under customs of the Bukusu the Elder son gets a little more than others.  It is also not lost to the Court that Stephen was a nephew to the deceased.

13. Stephen’s son William Wamalwa gave the impression that his grandfather gave his father 25. 1 acres.  There is no such evidence because the record indicates the sub-divisions were done in 2000, after the demise of the deceased.

14. Section 38 of the Law of Succession Act that states that estate of an intestate shall be equally divided among the surviving children.  I will apply this Section of the Law in arriving at the distribution.

15. And in order not to overly disturb the position on the ground, taking into consideration that the subdivisions were annulled, being reasonable in the circumstance, taking into account the provision of the Law and recognizing that Laban and Herman were biological sons of the deceased and Stephen a nephew I will distribute the estate as follows;

Jaban Wafula - 40. 4 acres

Herman Okumu - 40 acres

Stephen Wekunda – 20 acres.

16. Parties are directed to jointly meet the cost of the Surveyor who will as much as possible not disturb status quo but move the boundaries to comply with this judgement.

17. Costs in the cause.

DATED and DELIVERED at BUNGOMA this  5th  day of  October,  2017

ALI-ARONI

JUDGE