THE REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KAKAMEGA
SUCCESSION CAUSE NO. 292 OF 1996
IN THE MATTER OF THE ESTATE OF JASEPHAT ANZUNZU MUZOZO…….…(DECEASED)
AND
CLEMENTINA KHAVETSA ANZUNZU……..……………...........….. PETITIONER(DECEASED)
AND
GERALD MOURICE INGOSI………….......………………………………..…..…......APPLICANT
PENEDICTO TAIFA ANZUNZU..............................................…………………RESPONDENTS
BENARD KARIUKI ANUNZU
RULING
1. The applicant filed an application under Certificate of Urgency on the 05.11.2018 for the following reasons: -
I. The respondents had deprived the applicant the total use and occupation of a portion of land comprised in a parcel of land known as KAKAMEGA/MUGOMARI/1165.
II. The respondents had planted bananas and sugarcane on the disputed portion of land which would take a longer period of time to mature harvest.
III. The applicant shall suffer irreparable damages if the respondents are not restrained by an order of this honorable court.
IV. The respondents have threatened to physically confront the applicant and thereby threatening the applicant’s peace.
V. There is likely to be a breach of peace if the Honorable Court will not intervene by way of temporary injunction against the respondents.
2. The application was amended on 27.02.2019 seeking the following orders: -
a. This Honorable court be pleased to enjoin the applicant herein GERALD MOURICE INGOSI in the place of the deceased beneficiary ROBERT INGOSI MMOSI - (Deceased).
b. This Honorable court be pleased to appoint the applicant herein as an administrator of the estate of the deceased.
c. This Honorable court be pleased to issue an order of injunction against the Respondents by themselves, their agents, servants and/or anybody acting for and/on their behalf from interfering with the applicant\'s peaceful occupation of a portion of land measuring 72 strides by 62 strides by 72 strides by 62 strides which forms part of the estate of the deceased and devolves around that parcel of land better known as L.R. NO. KAKAMEGA/MUKOMARI/1165 pending hearing and determination of this cause.
d. Costs of this application be provided for.
3. The application was premised on the following grounds: -
i. The applicant\'s deceased father the late ROBERT INGOSI MMOSI bought a portion of land comprised in that parcel of land better known as L.R. No. KAKAMEG MUGOMARI/1165 measuring approximately 72 strides by 62 strides by 72 strides b 62 strides and/or thereabouts.
ii. The agreement for the sale of the aforesaid portion of land was entered into between the applicant\'s deceased father and the deceased petitioner herein.
iii. The applicant herein was at one point involved in the sale of agreement as a witness on behalf of his late father.
iv. The deceased Petitioner herein included the Applicant\'s late father as a beneficiary to the estate of the deceased.
v. The applicant\'s deceased father was given vacant possession of the portion of land which he enjoyed up to 23.07.2017 when he passed on.
vi. For 28 years down the line, the applicant\'s father enjoyed quiet and peaceful occupation of the portion of land without any problem from the Respondents.
vii. In the year, 2008, planting session, the respondents barred the applicant from cultivating the portion of land and instead they cultivated.
viii. That the Respondents have turned violent and vowed not to allow the applicant to use the portion of land under dispute.
ix. That the Respondent\'s actions have caused and will continue to cause intolerable mental anguish and suffering to the applicant and the entire estate of the late ROBERT INGOSI MMOSI – Deceased.
x. That the estate of the late ROBERT INGOSI MMOSI - deceased will suffer irreparable loss and damages
4. The application was supported by an affidavit sworn on 27.02.2019 by the applicant.
Respondents Case.
5. The respondent opposed the application via a replying affidavit dated 16.10.2020 and another affidavit sworn on the 26.01.2022. The 2nd respondent averred that the applicant was a stranger to the estate and had not adduced any evidence to show that his father was included as a beneficiary in the succession cause for the estate.
6. The respondent stated that the sale agreement submitted by the applicant was ingenuine as there were no witness names, signatures or national identity cards attached on the document besides his mother’s name.
7. The respondent further stated that this matter had been presided over by the area local administration and the applicant herein was still unable to justify his claim.
8. The respondent urged that the application should be dismissed with costs purporting that it was lodged in bad faith and ought not to be entertained in this court.
9. The respondent did not file submissions.
Applicant’s Case.
10. Vide his submissions dated 09.01.2024, the applicant stated that through evidence adduced during the hearing of the application herein, he proved to the court that his late father purchased the land in dispute from CLEMENTINA KHABETSA ANZUNZU at an agreed purchase price of Kshs. 15,000/-.
11. The applicant further submitted that he called witnesses who supported his claim by adducing their oral evidence which was never challenged.
12. The applicant averred that the 1st respondent PENEDICTO TAIFA ANZUNZU similarly admitted that the applicant is entitled to his claim and the 2nd respondent’s intent is to deny him the fruits of his late father’s sweat.
Analysis and Determination.
13. I have looked at the application, the supporting affidavits, submissions filed by the applicant and the two affidavits filed by the respondent.
14. I have also looked at the record. The court on 19.10.2020 presided by Justice Otieno allowed prayer (1) of the amended Notice of motion and ordered that the status quo be maintained on the land as it was that day pending hearing of the succession cause.
15. Those court orders effectfully determined prayer(1)and (3) of the amended notice of motion.
16. What is left for this court to determine is whether the applicant has made a case to be acquainted as an administrator in the estate of the deceased JOSEPHAT ANZUNZU MUZOZO and the issue of costs.
17. The deceased has surviving children. The applicant is not a child of the deceased. The children rank higher than him in terms of priority as to who can take out succession proceedings.
18. Section 66 of the Succession Act states that: -
“When a deceased has died intestate, the court shall, save as otherwise expressly provided, have a final discretion as to the person or persons to whom a grant of letters of administration shall, in the best interests of all concerned, be made, but shall, without prejudice to that discretion, accept as a general guide the following order of preference—
(a) surviving spouse or spouses, with or without association of other beneficiaries;
(b) other beneficiaries entitled on intestacy, with priority according to their respective beneficial interests as provided by Part V;
(c) the Public Trustee; and
(d) creditors: Provided that, where there is partial intestacy, letters of administration in respect of the intestate estate shall be granted to any executor or executors who prove the will.”
19. The applicant says that his father had bought a piece of land from CLEMENTINA KHAVETSA ANZUNZU, the wife of the deceased herein who died before completion of the succession of her husband’s estate. Therefore, the applicant can only be a creditor to the estate of CLEMENTINA KHAVETSA ANZUNZU.
20. It is debatable whether CLEMENTINA KHAVETSA ANZUNZU had capacity to sell the alleged parcel of land while the title deed was in the name of her husband and he was already dead.
21. The upshot of the above, I find that the applicant cannot be appointed as administrator in the estate of JOSEPHAT ANZUNZU MUZOZO when the children are alive and willing to take over the proceedings started by CLEMENTINA KHAVETSA ANZUNZU, their mother.
22. Therefore, the application has no merit. It is hereby dismissed in respect to prayer 2(The issue of appointment of administrator).
23. Given the history of the matter, I order each party to bear its own costs of the application.
Dated, signed and delivered at Kakamega this 22nd Day of October, 2024.