1. Makori Onunga Okeyo (deceased) died intestate on 16th July 2020. Grant of Letters of Administration Intestate was issued to Hellen Gesare Ayoti, Joyce Kemunto Makori and Rose Morangi Makori, the Administratrices on 30th January 2024 following the Petition for Grant dated 16th November 2023 and publication of the Gazette Notice dated 15th December 2023.
2. Subsequently, the Administratrices filed the Summons for Confirmation of Grant dated 05th June 2024 filed and in response Evans Oseko Makori, Richard Bogonko Makori and Samuel Osiago Makor filed a Protest to Confirmation of Grant.
3. The confirmation proceedings concern land parcels known as Matutu Settlement Scheme/767 and Matutu Settlement Scheme/1212, both of which are expressly referred to in the Summons for Confirmation of Grant dated 05th June 2024.
4. The Court heard oral evidence from Richard Bogonko Makori (PW1), who adopted his affidavit of protest sworn on 20th September 2024, from Martin Manwari Osano (PW2), the County Land Registrar, Nyamira, who relied on his affidavit sworn on 13th August 2024 and official land records, and from Evans Oseko Makori (PW3). On behalf of the Administratrices, Rose Morangi Makori (DW1) testified and adopted her affidavit dated 01st October 2024.
5. The evidence of the County Land Registrar, Nyamira, which was in the form of an extract of the land register, is that Matutu Settlement Scheme/767 was subdivided on 09th July 2014 into eight portions, namely Matutu Settlement Scheme/1205, 1206, 1207, 1208, 1209, 1210, 1211 and 1212 and that the original parcel ceased to exist upon such subdivision.
6. The evidence further reveals that, as at the date of death on 16th July 2020, Matutu Settlement Scheme/1212 remained registered in the name of the deceased. The registration and disposal of Matutu Settlement Scheme/1205 to Matutu Settlement Scheme/1211 were however not conclusively established on the evidence presently before the Court.
7. The Court has noted references to an official search allegedly issued by the Land Registrar, Nyamira, purporting to confirm the existence of Matutu Settlement Scheme/767 following a cancellation of the resultant parcel numbers, said to have been undertaken after a complaint by the Administratrices based on allegations of fraud.
8. However, the details, basis, and evidentiary foundation of the allegations of fraud were neither disclosed nor placed before this Court. In the absence of such material, and noting that the subdivision of Matutu Settlement Scheme/767 occurred during the lifetime of the deceased on 09th July 2014, this Court cannot recognise, uphold, or give effect to any administrative action purporting to cancel or reverse that subdivision.
9. Under section 3 of the Law of Succession Act, free property is property which the deceased was legally competent to freely dispose of at the time of death and which had not already been disposed of during his lifetime.
10. The Court finds that the subdivision of Matutu Settlement Scheme/767 on 09th July 2014 occurred during the lifetime of the deceased and accordingly declines to treat Matutu Settlement Scheme/767 as having been reconstituted as an asset of the estate available for distribution.
11. On the other hand, Matutu Settlement Scheme/1212 is confirmed to be free property of the estate, having been demonstrated to have remained registered in the name of the deceased as at the time of his death on 16th July 2020.
12. However, the evidence on record does not conclusively disclose the manner in which Matutu Settlement Scheme/1205 to 1211 were dealt with during the lifetime or after the death of the deceased. In particular, the Court has not been furnished with documentary trail demonstrating any dealings or dispositions in respect of the said parcels, nor is there evidence showing whether, if at all, any of the beneficiaries benefited from such dealings or dispositions. That information is material, as it bears directly on the identification of the free property of the estate and the equitable distribution thereof at confirmation.
13. The Court notes that all parties were heard and accorded full opportunity to present their respective cases. Nonetheless, the material presently before the Court is insufficient to enable the Court to make a final determination on confirmation and distribution.
14. Guided by Article 50(1) of the Constitution, and mindful of the Court’s duty to render a fair and informed determination on confirmation, the Court is satisfied that the interests of justice require the calling of further evidence, strictly limited to clarifying how Matutu Settlement Scheme/1205 to 1211 were dealt with, in order to ensure that confrmation and distribution proceed on a complete and reliable record.
14. From the following analysis, the court makes the following orders:
1) Matutu Settlement Scheme/767 is confirmed to have been subdivided on 09th July 2014 into Matutu Settlement Scheme/1205 to Matutu Settlement Scheme/1212 and does not form part of the estate.
2) Matutu Settlement Scheme/1212 is confirmed to be free property of the estate, the same having been demonstrated to have remained registered in the name of the deceased as at the time of his death on 16th July 2020.
3) Confirmation of the grant and distribution of the estate is deferred pending the placing before the Court of further evidence limited to the disposal of Matutu Settlement Scheme/1205 to Matutu Settlement Scheme/1211.
4) Either party shall be at liberty to place before the Court such further affidavit and documentary evidence as may be necessary to demonstrate how Matutu Settlement Scheme/1205 to Matutu Settlement Scheme/1211 were disposed off
5) Such evidence shall include the documentary trail of any further dealings or dispositions, including but not limited to land registers, transfer instruments, consents, searches, mutation forms, or other official records, where applicable.
6) For purposes of facilitating compliance with the foregoing orders, the County Land Registrar, Nyamira, is hereby directed to issue certified copies of the land registers (green cards) and any other available registration records in respect of Matutu Settlement Scheme/1205 to Matutu Settlement Scheme/1211 to any party who applies, upon payment of the requisite statutory fees.
7) The matter shall be mentioned on 29th January 2025 for confirmation of compliance and further directions.
8) Costs shall be in the cause.
2. Subsequently, the Administratrices filed the Summons for Confirmation of Grant dated 05th June 2024 filed and in response Evans Oseko Makori, Richard Bogonko Makori and Samuel Osiago Makor filed a Protest to Confirmation of Grant.
3. The confirmation proceedings concern land parcels known as Matutu Settlement Scheme/767 and Matutu Settlement Scheme/1212, both of which are expressly referred to in the Summons for Confirmation of Grant dated 05th June 2024.
4. The Court heard oral evidence from Richard Bogonko Makori (PW1), who adopted his affidavit of protest sworn on 20th September 2024, from Martin Manwari Osano (PW2), the County Land Registrar, Nyamira, who relied on his affidavit sworn on 13th August 2024 and official land records, and from Evans Oseko Makori (PW3). On behalf of the Administratrices, Rose Morangi Makori (DW1) testified and adopted her affidavit dated 01st October 2024.
5. The evidence of the County Land Registrar, Nyamira, which was in the form of an extract of the land register, is that Matutu Settlement Scheme/767 was subdivided on 09th July 2014 into eight portions, namely Matutu Settlement Scheme/1205, 1206, 1207, 1208, 1209, 1210, 1211 and 1212 and that the original parcel ceased to exist upon such subdivision.
6. The evidence further reveals that, as at the date of death on 16th July 2020, Matutu Settlement Scheme/1212 remained registered in the name of the deceased. The registration and disposal of Matutu Settlement Scheme/1205 to Matutu Settlement Scheme/1211 were however not conclusively established on the evidence presently before the Court.
7. The Court has noted references to an official search allegedly issued by the Land Registrar, Nyamira, purporting to confirm the existence of Matutu Settlement Scheme/767 following a cancellation of the resultant parcel numbers, said to have been undertaken after a complaint by the Administratrices based on allegations of fraud.
8. However, the details, basis, and evidentiary foundation of the allegations of fraud were neither disclosed nor placed before this Court. In the absence of such material, and noting that the subdivision of Matutu Settlement Scheme/767 occurred during the lifetime of the deceased on 09th July 2014, this Court cannot recognise, uphold, or give effect to any administrative action purporting to cancel or reverse that subdivision.
9. Under section 3 of the Law of Succession Act, free property is property which the deceased was legally competent to freely dispose of at the time of death and which had not already been disposed of during his lifetime.
10. The Court finds that the subdivision of Matutu Settlement Scheme/767 on 09th July 2014 occurred during the lifetime of the deceased and accordingly declines to treat Matutu Settlement Scheme/767 as having been reconstituted as an asset of the estate available for distribution.
11. On the other hand, Matutu Settlement Scheme/1212 is confirmed to be free property of the estate, having been demonstrated to have remained registered in the name of the deceased as at the time of his death on 16th July 2020.
12. However, the evidence on record does not conclusively disclose the manner in which Matutu Settlement Scheme/1205 to 1211 were dealt with during the lifetime or after the death of the deceased. In particular, the Court has not been furnished with documentary trail demonstrating any dealings or dispositions in respect of the said parcels, nor is there evidence showing whether, if at all, any of the beneficiaries benefited from such dealings or dispositions. That information is material, as it bears directly on the identification of the free property of the estate and the equitable distribution thereof at confirmation.
13. The Court notes that all parties were heard and accorded full opportunity to present their respective cases. Nonetheless, the material presently before the Court is insufficient to enable the Court to make a final determination on confirmation and distribution.
14. Guided by Article 50(1) of the Constitution, and mindful of the Court’s duty to render a fair and informed determination on confirmation, the Court is satisfied that the interests of justice require the calling of further evidence, strictly limited to clarifying how Matutu Settlement Scheme/1205 to 1211 were dealt with, in order to ensure that confrmation and distribution proceed on a complete and reliable record.
14. From the following analysis, the court makes the following orders:
1) Matutu Settlement Scheme/767 is confirmed to have been subdivided on 09th July 2014 into Matutu Settlement Scheme/1205 to Matutu Settlement Scheme/1212 and does not form part of the estate.
2) Matutu Settlement Scheme/1212 is confirmed to be free property of the estate, the same having been demonstrated to have remained registered in the name of the deceased as at the time of his death on 16th July 2020.
3) Confirmation of the grant and distribution of the estate is deferred pending the placing before the Court of further evidence limited to the disposal of Matutu Settlement Scheme/1205 to Matutu Settlement Scheme/1211.
4) Either party shall be at liberty to place before the Court such further affidavit and documentary evidence as may be necessary to demonstrate how Matutu Settlement Scheme/1205 to Matutu Settlement Scheme/1211 were disposed off
5) Such evidence shall include the documentary trail of any further dealings or dispositions, including but not limited to land registers, transfer instruments, consents, searches, mutation forms, or other official records, where applicable.
6) For purposes of facilitating compliance with the foregoing orders, the County Land Registrar, Nyamira, is hereby directed to issue certified copies of the land registers (green cards) and any other available registration records in respect of Matutu Settlement Scheme/1205 to Matutu Settlement Scheme/1211 to any party who applies, upon payment of the requisite statutory fees.
7) The matter shall be mentioned on 29th January 2025 for confirmation of compliance and further directions.
8) Costs shall be in the cause.