PHILI MUKHWANA ETEMESI & another v ROSE OLWANGU MUKHWANA & another [2009] KEHC 365 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT KAKAMEGA

Succession Cause 588 of 1999

PHILI MUKHWANA ETEMESI

ROSEBELLA AYIELA………………..……. PETITIONERS

V E R S U S

ROSE OLWANGU MUKHWANA

RUFAS ETEMESI MUKHWANA……. APPLICANTS/OBJECTORS

R U L I N G

The two petitioners were issued with a grant of letters of Administration Intestate on 1st March, 2000. The grant has not been confirmed and no application for confirmation of the grant has been filed in court.

The objectors filed their summons for revocation or annulment of Grant on 20th September, 2004 together with their supporting affidavit. They filed a further affidavit on 21st July, 2009 while the petitioners filed their replying affidavit on 18th June, 2009.

The objectors’ contention is that the late RUFAS ETEMESI ESHIKUMO was survived by three sons namely PHILIP MUKHWAMBO ETEMESI, HEZRON MUKHWANA ETEMESIandONZARE SHIKUMU ETEMESI.

The first Objectors are the wife and son of the late HEZRON MUKHWANA ETEMESI. Their objection is that the petitioners did not include them in the Succession Cause and that the estate of Rufas Etemesi Eshikumo included plot Number BUTSOTSO/BUKURA/431 measuring 7. 5 acres and that the deceased had sub-divided the land and shared it amongst his three sons. The petitioners have transferred the land into their names without giving the objectors their share .

When the petitioners filed this petition, they listed the following as the survivors –

Philip Mukhwambo Etemesi – son

Rosebellah Ayiela – daughter –in-law

Eshikumo Mukhwana – grandson

Rufas Etemesi - grandson

In the replying affidavit sworn on 18th June, 2009, the Petitioners do not object to the objectors claim that they are entitled to inherit the deceased. I believe survivors indicated in the affidavit in support of the petition for letters of Administration named as Rufas Etemesi is the 2nd Objector herein. Paragraph 9 of the said affidavit states that the petitioner will make an application for confirmation of the grant and will set out the way the estate shall be distributed.

The objectors contend that the petitioners have registered themselves as the proprietors of Plot No. BUTSOTSO/BUKURA/431. No document has been annexed to establish this allegation. However, if that contention is correct, then the petitioner did not follow the correct procedure as the share for each beneficiary has not been identified for distribution.

I do order that the petitioners file their application for confirmation of Grant within 30 days hereof and the said application should be serve upon the objectors. Should there be any objection to the mode of distribution proposed by the petitioners, then the objectors shall file their affidavit stating how they propose to distribute the estate. In the meantime the petitioners are hereby restrained from transferring plot No. BUTSOTSO/BUKURA/431 to anybody pending the confirmation of the grant. Each party shall meet its own costs.

Delivered, dated and signed at Kakamega this 27th day of October, 2009

SAID J. CHITEMBWE

J U D G E