Prisca Anyango Kubadi v Vincent Juma Awori [2015] KEHC 2306 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT BUSIA

SUCCESSION CAUSE NO. 167 OF 2012

IN THE MATTER OF THE ESTATE OF CHARLES KUBADI MASAKHALIA -------------------DECEASED

AND

PRISCA ANYANGO KUBADI-----------PETITIONER/APPLICANT

VERSUS

VINCENT JUMA AWORI---------------- OBJECTOR/RESPONDENT

RULING

1.   In a ruling dated 27th June 2013 Kimaru, J made the following orders:-

So as to clear the way for the real dispute between the Applicant and the Respondent to be resolved, this court hereby revokes and annuls the grant of Letters of administration Intestate which was issued to the Respondent on 13th August 1987 and confirmed on 17th June 1992.  All the steps that have been taken as a consequence of the said grant of letters of administration intestate and confirmation thereof is hereby set aside.  This includes the cancellation of any transfer that would have been effected pursuant to the said documents.  This court appoints the Applicant, Vincent Juma Awori and the Respondent, Prisca Anyango Kubadi to be the administrators of the estate of the deceased.  The Respondent is ordered to file an application for confirmation of grant within thirty (30) days of the date of this judgment.   She shall serve the same upon the Applicant. The Applicant shall be at liberty to file an affidavit of protest if he shall  not be in agreement with the mode of distribution proposed by the Respondent .  If there shall be any dispute regarding the distribution of the suit property, the same shall be determined by this court.

2.   As the Co-Administrators have not agreed on the mode of distribution that task is now left to this court. So as to reach a decision on the matter the court invited the rivals to lead evidence.  In this respect, the Petitioner gave evidence and then requested the Court to summon a Charles Nasubo Gaunya to testify on her behalf.  The said Charles Nasubo Gaunya was present in Court and as the Objector did not object to him testifying, this Court received his oral evidence.  He was then cross-examined by Counsel for the Objector.  On the side of the Objection, the Objector himself testified.

3.   This court has anxiously considered the evidence and the issues raised herein and reaches a conclusion that an order of Distribution cannot resolve this long drawn dispute between the now Co-Administrators. The only property in the name of the Deceased is Samia/Wakhungu-Odiado/617.  The position of Vincent is that although so registered the land was ancestral land and belonged to the late Masakhalia Awori and so the Deceased was a Trustee for himself and other members of the family of the late Masakhalia Awori.  In my understanding of nature of the claim by Vincent is not one of a Dependant to the Deceased but a claim against the Estate of the Deceased as Trustee in respect to Samia/Wakhungu-Odiado/617.  The forum for settling a dispute of that nature is the Environment and Land Court.

4.   This court is aware that Vincent may have pegged his hopes on the outcome Tribunal Case No. 11/09 as adopted by the Magistrate Court in Case No. 122/09.  In fact in his affidavit of 23rd October 2013 he states as follows:-

“That the issue of the said land parcel has been exhaustively dealt with by the Elders as indicated in my further affidavit sworn on the 15th November  2012 and filed herein on the 15th November 2013. ”

The Elders referred to are those who constituted the Tribunal in Land Case No. 11/09.  But the approach taken by Vincent may have taken away the traction that the Tribunal case may have given him. At the time Prisca was already the Adminstratrix to the estate of the deceased having Granted Representation on 13th August 1987.  For some reason Vincent did not join Prisca as a Co-defendant to the Tribunal Proceedings. If he did so then a course open to Vincent would have been to simply to execute the Court Order adopting the Tribunal outcome.

5.   Anyhow, the position now is that given the decision of Kimaru, J the proprietorship of Samia/Wakhungu-Odiado/617 has now reverted back to the name of the Deceased. The claim by Vincent to the land may not be frivolous. I do not know.  To give parties herein a chance to fully ventilate their case at a proper forum, this court shall stay the Distribution herein for 90 days to enable either party move The Environment and Land Court. Given the Decision of this court, Vincent will have to take advise as to whether it serves him well to remain as a co-administrator to the Estate.

6.   No orders on costs.

7.   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 2015.

F. TUIYOTT

J U D G E

In the Presence of :-

Oil  .Court Clerk

Petitioner in person

Juma For Objector