Case ID:184967

In re Estate of Philip Mokaya Gesanda (Deceased) [2021] eKLR

Case Metadata

Case Number:

Succession Cause 215 of 2008

Parties:

In re Estate of Philip Mokaya Gesanda (Deceased)

Date Delivered:

02 Nov 2021

Case Class:

Civil

Court:

High Court at Kisii

Case Action:

Ruling

Judge(s):

Rose Edwina Atieno Ougo

Citation:

In re Estate of Philip Mokaya Gesanda (Deceased) [2021] eKLR

Advocates:

Mr. Anyona For the Applicant

Court Division:

Family

County:

Kisii

Advocates:

Mr. Anyona For the Applicant

History Advocates:

One party or some parties represented

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 KISII

SUCCESSION CAUSE NO. 215 OF 2008

IN THE MATTER OF THE ESTATE OF PHILIP MOKAYA GESANDA (DECEASED

)

RULING

1. On the 12

th

October 2021 Steven Mangi Mokaya (the applicant) filed an application dated the 27

th

of September 2021 seeking the following orders;

i. An order do issue directing the Land Registrar/ Surveyor Nyamira County to assist in demarcating land parcel LR No. Ekerubo Settlement Scheme/14 indicating the sizes of each household as per the boundaries therein and wishes of the deceased.

ii. That the OCS Manga police station to provide security during the exercise

iii. That costs be in the cause.

2. The applicant depones in his supporting affidavit that he was issued with the grant of letters of administration of the 10

th

of November 2009. The same was confirmed on the 13

th

December 2016. As per the confirmed grant he holds the title LR No. Ekerubo Settlement Scheme/14, the only asset, in trust for all beneficiaries of the deceased estate. The deceased had 4 wives. The deceased allocated shares of each of the 4 houses and the Land Registrar is only to confirm the acreage for each of the 4 houses. That section 40 does not apply since the deceased had already allocated the shares. That on the 20

th

August 2020 to the county surveyor did a letter to the Deputy County Commissioner to provide security and attend for survey. That one of the beneficiaries Joseph Mokaya Gowanda from the 1

st

house disrupted the meeting and the surveyor did not carry his duties. That the Land Registrar/ Surveyor seeks a court order to enable them carry out the exercise.

3. I have considered the application. The applicant is the administrator of the deceased’s estate. He seeks an order to have the Land Registrar / Surveyor assist in demarcation of the land parcel the subject of the deceased’s estate. The Law of Succession Act and the Rules confer jurisdiction to the probate court to determining the assets of the deceased, the survivors of the deceased and the persons with beneficial interest, and finally distribution of the assets amongst the survivors and the persons beneficially interested.

4. In this matter the orders being sought cannot be granted by a probate court. The issues of ownership of land, declaration of parties’ interests and demarcation are matters which do not fall under the preamble of the Law of Succession Act and must be filed as separate suits in the Environment and Lands Court. Under the Land Registration Act the Land Registrar has the authority to deal with demarcation of land. The applicant should therefore move to the appropriate court the ELC court for this court lacks the jurisdiction to grant the orders being sought. No order as to costs

Dated, Signed

and

Delivered

at

KISII

this 2

nd

day of

November 2021.

R.E. OUGO

JUDGE

In the presence of:

Mr. Anyona For the Applicant

Ms. Rael Court Assistant