Pauline Ajiambo Egokhe & Patrick Sikuku v Wandera Bachakha [2015] KEHC 2236 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT BUSIA

SUCCESSION CAUSE NO. 256 OF 2011

IN THE MATTER OF THE ESTATE OF SENJWA PASKAL EGOKHEDECEASED

AND

PAULINE  AJIAMBO EGOKHE

PATRICK SIKUKU-------------PETITIONERS

VERSUS

WANDERA BACHAKHA-------------------OBJECTOR

RULING

These proceedings relate to the Estate of Paskal Senjwa Egokhe (The Deceased) who died on 10th February 1996. The only property to the Estate is Samia/Buburi/256.

Before Court for Determination are objection proceedings taken out by Wandera Bachakha (The Objector) who has by way of Notice of Motion dated 27th May 2013 sought the following:-

That the Grant of Letters of Administration made to the Petitioner on the 9/11/2011 be revoked.

That costs of this application be provided for.

In support of that objection, the Objector swore an affidavit dated 27th May 2013 in which he told court  that through proceedings in Busia PM Land Case No. 47 of 2010 the Land Tribunal gave him 1/3 of the Estate land.  That no appeal has been filed to challenge the said judgment.  In paragraph 6 of the said affidavit he states:

“That the Petitioners have not come to court with

clean hands and are not interested in executing the

orders of the Court”.

The Petitioners herein are widow and son respectively to the Deceased.  The Objector does not say he has priority in their stead to take out Letters of Administration to the Estate of the Deceased.  It is however the Objector’s position that the Petitioner need to give effect to the court order in Busia SPMCC Land Dispute No. 47 of 2010.

I have looked at the Proceedings before Funyula Land Disputes Tribunal that were adopted in Busia PM Land Case No.47 of 2010. Those proceedings reveal the true nature of the objector’s claim herein.  Basically the Objector’s contention is that Samia/Buburi/256 is family land and though solely registered in the name of the Deceased, his father’s 1/3 share ought to be recognized. If there was any doubt as to the nature of this claim then it is removed by what the Objector’s own Statement in paragraph 18 of his affidavit of 31st July 2014.  He stated:-

“That during Land Adjudication and Registration I am the one who allowed the Deceased to be registered to the disputed land as our elder brother’s son and to hold in trust for himself and ourselves to process our respective titles later as the boundaries were still on the  ground.”

The inevitable finding this Court must reach is that the Objector’s claim herein is not one of a beneficiary but a claim against the Estate.  Though the Objector seeks to rely on the Land Dispute Proceedings, one must observe that these proceedings could well be a nullity as they were commenced after the death of the Deceased and before an Administrator had been appointed to his estate.

The Objector must look to another forum to stake his claim against the Estate.  It cannot be in Succession Proceedings.  It is for that reason that I find that the Objection Notice of Motion dated 27th May 2013 is without merit and must be dismissed with costs.

It would be important to conclude by saying this. If indeed, the family of the Objector resides on the family land, then the Petitioner cannot use this Decision to evict them. Parties are advised that whether or not the Objector has a legitimate claim in land parcel Samia/Buburi/256 is a matter that needs to be litigated and settled once and for all.

As explained to the Parties, this Decision could only be delivered on Notice to them as I was proceeding for my Annual Leave and thereafter for August vacation.  That explains the apparent delay.

Dated, signed and delivered at Busia this 1st day of October.

F. TUIYOTT

J U D G E

In the presence of:-

Oile………………..Court Clerk

Juma h/.b for Balongo…….. for the Petitioners

Onsongo…………………. For the Objector