PHILISTER AWINO KITOTO v MARGARET INYAMBULA INGOSI [2012] KEHC 186 (KLR)

REPUBLIC OF KENYA

High Court at Kakamega

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IN THE MATTER OF THE ESTATE OF FRANCIS MUTSOTSO MUKAKHA – (DECEASED)

BETWEEN

PHILISTER AWINO KITOTO ..................PETITIONER/RESPONDENT

AND

MARGARET INYAMBULA INGOSI ............ OBJECTOR/APPLICANT

RULING

The application dated 18. 6.2010 seeks orders that the Petitioner be found to have contravened the provisions of Section 95 of the Law of Succession Act and be punished accordingly.

The application is supported by the affidavit of MARGARET INYAMBULA INGOSI.

The gist of the said affidavit is that vide this court’s ruling dated 28. 10. 2005, the grant of letters of Administration issued to the respondent were annulled and the court ordered the respondent to account for the properties of the estate of the deceased within 30 days. It is averred that despite the respondent having been served with the orders, she has failed to account for the properties of the estate of the deceased.

An affidavit was filed by the respondent on 8. 11. 11 wherein the respondent agreed to surrender land parcel No. NAKURU/LANGALANGA/1175 to the applicant and conceded that she sold L.P. No. BAHATI/KABATINI BLOCK I/222 and used the proceeds of the sale to meet the educational needs of her three children. The respondent further averred that she should share with the objector the N.S.S.F. funds equally. The respondent denied having misappropriated the estate of the deceased.

The applicant filed a further affidavit on 17. 1.2012 contesting the account by the respondent as incorrect and asked that the two pieces of land comprising the estate of the deceased should be made available for distribution.

Mr. Mukavale Advocate appeared for the applicant while Mr. Kiveu Advocate appeared for the respondent. Both parties filed written submissions which this court has duly considered.

According to the submissions by Mr. Mukavale for the applicant, the respondent has failed to account for the estate of the deceased, stating that the entire estate of the deceased needs to be brought to court for distribution.

According to Mr. Kiveu Advocate for the respondent, the respondent has adequately accounted for all the properties of the deceased. Mr. Kiveu further contended that there is no valuation report to prove that the sale of land parcel No. BAHATI/KABATINI/1/222 could have fetched a higher price and further that no documents have been exhibited by the applicant to prove that these were educationalInsurance policies for three children.

This Succession cause was filed in the year 1996. The respondent was the Administrator of the estate upto the 28th October 2005 when the grant was annulled and orders made for the respondent to account for the estate.

The parties seem to have entered into negotiations following the filing of the application at home. On 29. 09. 2011 an order was made that the applicant do inherit the property known as NAKURU LANGALANGA/BLOCK 1/75. This order was made by the Consent of the parties.

The court does not know the background information concerning what was the consideration on the respondent’s side when the said order was made or whether it was because of the purported sale of L.P. No. BAHATI/KABATINI//1/222 by the respondent. I call it purported sale because it seems there was no confirmation of the grant of letters of Administration of the deceased. The details  on the record relating to the employers benefits, insurance benefits, N.S.S.F. benefits as any insurance payment are scanty.    It is therefore not possible to tell exactly what payments have been made in respect of the said benefits if any. It is also not clear whether the ancestral land of the deceased is in his name or not. What is clearly reflected in this file is the L.P. NO. LANGALANGA/BLOCK 1/75 and L.P. No. BAHATI/ KABATINI/1/222.

In the premises, there is no conclusive material before this court upon which the court can move to punish the respondent. There has been a half baked attempt by the parties to settle the matter.   If the negotiations have failed, then the parties ought to move the court to have the estate distributed. The parties can list and prove what property was left behind by the deceased for purposes of the distribution.

In the premises, the application is dismissed. Costs in the cause.

Dated, delivered and signed at Kakamega this 18th day of December, 2012

B. THURANIRA JADEN

J U D G E