Case ID:172958

In re Estate of Vitalis Omach Ondele (deceased) [2021] eKLR

Case Metadata

Case Number:

Succession Cause 438 of 2013

Parties:

In re Estate of Vitalis Omach Ondele (deceased)

Date Delivered:

22 Mar 2021

Case Class:

Civil

Court:

High Court at Kisumu

Case Action:

Ruling

Judge(s):

Fred Andago Ochieng

Citation:

In re Estate of Vitalis Omach Ondele (deceased) [2021] eKLR

Court Division:

Family

County:

Kisumu

Disclaimer:

The information contained in the above segment is not part of the judicial opinion delivered by the Court. The metadata has been prepared by Kenya Law as a guide in understanding the subject of the judicial opinion. Kenya Law makes no warranties as to the comprehensiveness or accuracy of the information

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT KISUMU

SUCCESSION CAUSE NO. 438 OF 2013

IN THE MATTER OF THE ESTATE OF

THE LATE VITALIS OMACH ONDELE

RAPHAEL OKENDO OSURO.......................................................................PETITIONER

VERSUS

BENTA JUMA NYAKAKO.........................................................................1

ST

OBJECTOR

LEUNIDA ACHIENG OMACH.................................................................2

ND

OBJECTOR

RULING

On 31

st

October 2017 Majanja J. delivered a Ruling on a Summons for Confirmation of Grant.

1.

The learned Judge noted that the Estate of the late

VITALICE OMACH ONDELE

alias

PETERLIS OMACH

consisted of four properties, being;

(a)

KISUMU/KOLUNJE/898;

(b)

KISUMU/KOLUNJE/1690;

(c)

KISUMU/KOLUNJE/1691; and

(d)

KISUMU/KOLUNJE/1929.

2.

At the time, there were persons who were laying claim either as creditors or by virtue of adverse possession. The said claims were, however limited to Parcel No.

KISUMU/KOLUNJE/898

(“PLOT 898”). In the circumstances, the court held as follows;

“13. Since only property in dispute is

Plot 898, I will exclude it from

confirmation and issue a partial

confirmation for Plots 1690, 1691

and 1929 as prayed in the

application. All the proceedings

relating to Plot 898, in this case,

shall be stayed pending resolution

of the case filed before the

Environment and Land Court.”

3.

On 21

st

September 2020 the Petitioner informed this court that the Environment and Land Court had granted its Judgment in the case of

BENTER JUMA NYAKAKO & 4 OTHERS, ELC NO. 116 OF 2014

(Consolidated with

ELC NO. 160 OF 2014 (O.S.)

.

4.

It was the finding of the ELC Court that there was no valid

Agreement for sale of land between the deceased and

JAMES

OLWANDA NG’ONG’A

. The purported agreement lacked the

Particulars such as the identity of the land being sold; the size of the said parcel, and signatures of the parties.

5.

It was the further finding of the Court that, because there was no valid agreement for sale between the deceased and James

Olwanda, the 2

nd

Defendant in that suit could not pass on what he did not have or own. The learned Judge said;

“The 2

nd

defendant sold land to the 3

rd

,

4

th

and 5

th

defendants in 2012, when the

deceased had died, and he did not have

powers to dispose of land belonging to

the estate of the deceased without letters

of administration.”

6.

It was the considered opinion of the learned Judge that, because the 2

nd

Defendant was not a beneficiary of the estate of the late

VITALIS OMACH

;

“……. he is a stranger to this estate and

therefore had no title to pass to the

defendants whom he purportedly sold

land to, registered in the name of the

deceased person.”

7.

Ultimately, the Court ordered the Defendants to vacate the parcel of land

No. KISUMU/KOLUNJE/898

, failing which they would be evicted. The Court also ordered the Defendants to pay General Damages of Kshs 200,000/=.

8.

Based upon that Judgment, the Petitioner herein asked this Court to include Plot 898 in the confirmed grant.

9.

However, the Objectors drew the attention of the court to the fact that they had filed an application at the Court of Appeal, seeking extension of time to file an appeal.

10.

On 21

st

September 2020, I noted that although there was no

formal order for stay of execution of the Judgment, it would be in the interests of justice to maintain the status quo until the Court of Appeal had determined whether or not the Objectors would be granted leave to appeal out of time.

11.

On 9

th

October 2020, the application by the Objectors was

dismissed by a single Judge of the Court of Appeal.

12.

On 14

th

October 2020 the Objectors filed a Reference to a full bench.

13.

The full bench of the Court of Appeal rendered its Ruling on 5

th

December 2020, dismissing the Objector’s application.

14.

The Objectors have intimated that they are giving consideration to the possibility of moving to the Supreme Court. However, as Mr. Athung’a the learned advocate for the Objectors conceded, the fact that his clients were contemplating moving to the

Supreme Court cannot be a reason to put this matter on hold.

15.

On his part, Mr. Odeny the learned advocate for the Petitioner asked the court to order that

Plot 898

be distributed in line with the Orders made by Majanja J. on 31

st

October 2017.

16.

The only matter that was holding up the distribution of

Plot 898

, has now been determined. Accordingly,

Plot 898

is part and parcel of the estate of the deceased herein.

17.

I now order that

L.R. NO. KISUMU/KOLUNJE/898

be

distributed in accordance with the

“Consent to the Mode of

Distribution of Estate”

, which was filed in court on 16

th

June

2015. Accordingly, the said parcel of land shall be distributed as

follows;

“Equally to Benter Juma Nyakako,

Augustine Otieno Otieno, Bonface Omondi

Otieno, Albert Otumba Omach, Leunida

Achieng Omach and Jared Odhiambo Okumu.”

DATED, SIGNED AND DELIVERED AT KISUMU THIS 22

ND

DAY OF MARCH 2021

FRED A. OCHIENG

JUDGE