Mule Kyalo v Peter Kyalo & Mulei Mutweiya [2015] KEHC 2712 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MACHAKOS

SUCCESSION CAUSE NO. 943  OF 2009

IN THE MATTER OF THE ESTATE OF ANNAH KALUNDE KYALO (DECEASED)

MULE KYALO ......................................................................... PETITIONER

VERSUS

1. PETER KYALO

2. MULEI MUTWEIYA ……………………………………… RESPONDENTS

R U L I N G

The application dated 19/3/2010 seeks orders that the Respondents, his agents, servants and whomsoever be restrained by an order of this Honourable Court from interfering in any manner with the family property known as parcel No. Masii/|Vyulya/585 until this petition is heard and determined.

It is stated in the replying affidavit that the Respondents are interfering with the suit property by causing destruction and threatening to sell the same.

The application is opposed.  It is deponed that the suit property belongs to the 1st Respondent who was given the same as compensation for inheriting a smaller portion of land parcel No. Masii/Vyulya/417.  That the 2nd Respondent is a purchaser of the same.  That the petition herein was filed without the consent of the Respondents, hence the objection filed herein.  It is further stated that some of the properties of the deceased and in particular land parcel No. Masii/Vyulya/417 were left out of the list of assets reflected in the petition.

Directions were given that the application be canvassed by way of written submissions.  The Applicants filed theirs but the Respondents did not file any.  I have considered the submissions filed.

The affidavit evidence from both sides reflects that the Applicant and the 1st Respondent are beneficiaries in the state of the deceased.  The evidence on record fails to establish whether the land is demarcated on the ground and who occupies which portion on the ground.

The 2nd Respondent is a purchaser from the 1st Respondent.  His cause of action would probably lie against the 1st Respondent.

The grant is yet to be confirmed.  This should be done on a priority basis so that each of the beneficiaries get their shares.  In the meantime, the status quo to remain.  The application has merits and is dismissed with costs in cause.

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B. THURANIRA JADEN

JUDGE

Dated and delivered at Machakos this 19thday of March 2015.

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B. THURANIRA JADEN

JUDGE