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JudgmentIn the Estate of PETER OKEYO WASONGA8 min read

In the Estate of PETER OKEYO WASONGA

High Court at Migori High Court · · Anne Ong'injo


  1. In a judgment dated 21.4.24 the estate of the deceased comprised of parcels of land known as Suna East / Kakrao/2713 and 5056 were distributed as follows:-

LUCY JEMUTAI WASONGA  SUNA EAST/KAKRAO/2713 0.2   HA

WILLIS TEMBE     “    0.2   HA

BEAUTER ALUOCH    “    0.2   HA

LILIAN WASONGA    “    0.2   HA

BRENDA WASONGA    “    0.2   HA

FRED OPIYO     “    0.16 HA

BRIAN GIFTON     “    0.2   HA

COLLINS TELLA     “    0.2   HA

LUCY JEMUTAI WASONGA SUNA EAST/KAKRAO/2713 -Shall held in Trust

For BRIAN GIFTON

and COLLINS TELLA who are minors.

  1. A duly signed certificate of confirmation dated 26.4.2017 was issued. Subsequent to confirmation of Grant and distribution of the estate a myriad of applications were filed by George Odhiambo Wasonga the third  Administrator. The 1st Application dated 29.5.2017 sought that Lucy Jemutai Wasonga be held in contempt of Court Order as she had declined and disrespected the court orders by failing to sign documents to enable the County Registrar of Lands and Surveyor proceed with the apportionment of the deceased property.  That application is supported by an affidavit sworn on 29.5.2017.
  2. In the  application dated 30.5.2017 the third Administrator  sought for an order to be issued allowing the Executive Officer Migori Law courts and the County Land Registrar Migori County to execute transfer documents to relevant beneficiaries in respect of the estate of the deceased in compliance with this court orders.
  3. The third Administrator further filed application date d 21.11.2017seeking that the Respondent Lucy Jemutai Wasonga be cited for contempt of court order and that a warrant of arrest be issued against her for committing a criminal act of fraud and irregularities and illegalities.  He further sought that the Land Registrar Migori County be compelled to produced green cards and mutation which were used in the  sub division and transfer of LR. Suna East / Kakrao/2713.  The grounds upon which the application was filed is that the Respondent had sold and transferred the said parcel of Land without the knowledge of the other two Administrators.  That following the said sale and transfer the beneficiaries shares as indicated in the certificate of confirmation was interfered with.  The application was also supported by further affidavit of George Odhiambo Wasonga dated 21.12.2017
  4. When the applications dated 29.5.2017 and 21.11.2017 were dismissed for want of prosecution the Applicant filed application dated 3.2.2020 seeking for reinstatement of the said application and the same was allowed on 12.3.2020.
  5. The Applicant also filed an application dated 4.12.2023 seeking to enjoin the interested parties.  On 12.6.24 Mr. Abisai Advocate came on record for the 1st, 3rd, 4th, 5th,  6th, 7th 8th  and 10 and  Interested Parties and the Judge allowed him to peruse the file and respond to the applications on record within 14 days. The 2nd 9th, 11th, 12th 13th and 14 Interested Parties together with the Respondent were also allowed time to respond to the application.
  6. The order of 12.6.24 by implication allowed the application dated 4.12.23 seeking to enjoin the Interested Parties. They are therefore two applications pending hearing and determination namely 29.5.2017 and 21.11.2017.
  7. The Respondent Lucy Jemutai Wasonga filed a Replying Affidavit sworn on  22.7.24 in which she explained that LR Suna East /Kakrao / 2713 which is in dispute was found by the surveyor to be less than the measurement indicated in the Title deed and the surveyor reduce the subdivision into 0.11Ha for each of the beneficiaries and that each of the beneficiaries took their shares and dealt with it as they deemed fit. She said that she sold her share and that of her sons to Dorothy Gesare Mogaka and Benson Onyango Zephaniah. She said that the shares indicate d in paragraph 10 and 11 of her affidavit were transferred after confirmation of grant and the purchaser paid full consideration.  The Respondent said that the complaint by George Wasonga is baseless as they have already benefitted from the Estate. Magambo Duncan Chacha 3rd Interested Party, Beatrice Kemunto Momanyi 10th Interested Party, Dorothy Gesare Mogaka 1st Interested Party, Beatrice Orina 5th Interested Party, Lilian Wasonga a beneficiary in the Estate averred that when her brother Wills Tembe Omolo and the Respondent herein accompanied the surveyor to the ground for purpose of division they found that the acreage on the ground was 0.92Ha and not 1.56 Ha as stated on paper. The  said parcel was divided into 8 portions an she left her portion to the brother Willis Tembe Omolo who sold the portion and the proceeds were given to her. Further replying Affidavits were filed by Brenda Wasonga and Willis Tembe Omolo who reiterated averments that were made by Lilian Wasonga.
  8. Martha Nyaduko Mariko 7th Interested Party and Beryl Aluoch Akoth 6th Interested Parties also filed their replying affidavit opposing the applications by the Applicant.
  9. In the Affidavit of Wilfred Nyaberi  the Land Registrar Migori County filed on 22.3.24 and the letter dated 7.12.23 it is indicated that parcel of land number  Suna East /Kakrao / 2713 as per the register measured 1.6Ha and it was to be distributed as per certificate of confirmation issued on 26.4.2017.  Wilfred N.Nyaberi confirms that Lucy Jemutai Wasonga was one of the Administrators did not distribute the land as per the certificate of confirmation.  He averred that if there was any issue in relation to the ground situation it should have been addressed in court and certificate of confirmation of gnat amended accordingly.  It was his view that the titles that originated from the subdivision ought to be surrendered back to the Land Registry for rectification of the register so that distribution can be done in line with certificate of confirmation of grant.  That in the alternative the certificate of the confirmation of grant ought to be amended by the court to reflect the actual average on the ground. By a letter dated 30.11.23 the National Government County Surveyor Migori Mr. Ken O. Opuge the Respondent Lucy Jemutia Wasonga gave instructions to the surveyor to sub divided the land in question into 8 portions including provision of road access equaling to 0.1 Ha.  He said that the summation of areas of the various portions and road access equals to 0.92 Ha but the registered area is 1.56 Ha.  That the difference between the area on the ground and the register was significant and the matter should have been addressed before the court with a view of amending the share on the ground accordingly. Mr. Opuge said that the sub division at the instance of Lucy Jemutai Wasonga did not deliver justice as per the confirmed grant.  He proposed that the same be nullified and a new survey to be done to demarcate the actual boundaries of each share.
  10. Mr. Abisai Advocate for the Interested Parties filed his submissions dated 8.8.24 in which it was submitted that parcel of land number Suna East / Kakrao / 2713 upon survey was found to measure 0.92 Ha and not 1.56Ha as indicated on the Title Deed and as result the beneficiaries agreed to share what was available on the ground equally.  That upon the said beneficiaries obtaining their titles they decided to dispose their shares expect for Fred Opiyo was retained.  It was further submitted that the Interested Parties were purchaser for value without notice and that the said purchase was valid pursuant to Section 93 of Succession Law Act.  It was further contended that the shares that were sold did not belong to the Applicant and therefore he cannot claim to have been fraud. It was also argued that none of the beneficiaries from LR Suna East/Kakrao/ 2713 had moved to the court to challenge the sharing and/or transfer of their interest on transfer property.  This court was argued to dismiss the Applications by the Applicant.
  11. The Respondent Lucy Jemutai Wasonga having been appointed to administer parcel of land Number 2713 together with the Applicant and Real Rida Omolo had no capacity to process the transmission and/or transfer of the property to her name in person without involvement of the other two Administrators. Furthermore, the Respondent had no capacity or authority to dispose of portions of the estate that she was holding in trust for the minor beneficiaries of the Estate.  Under Section 83 (f) and (g) of the Succession Actit is provided;

“ (f) Sub Section 55, to distribute or retain on trust (as the case may require) all assets remaining at a payment of expense s ad debts as provided by the preceding paragraphs of the Section and the income therefrom according to the respective beneficial interests therein and the Will or intestate as the case may be;

(g) Within six months from the date of confirmation or grant or such longer period as the court may allow to complete the administration of the estate in respect of all matters other than continuing trust and produce to the court a full and accurate  account of the completed administration.”

  1. The Respondent not only failed to give full and accurate account of her Administration of parcel of Land No. Suna East/ Kakrao 2713 but she also acted contrary to authority given to her in the certificate of confirmation dated 26.4.2017 that she was to hold 0.20Ha each in trust for Brian Gifton and Collins Tella who were minors at the time that the grant was confirmed.
  2. As proposed by the Land Registrar Migori County and the National Government Surveyor Migori if at all it is true  that the area  of the property on the ground was smaller than the measurement on the register all the three Administrators ought to have reverted back to the court and applied to have  the certificate of confirmation amended and the  land on the ground shared among the beneficiaries accordingly.  The Surveyor who proceeded to sub divided the parcel when it is alleged that it was smaller than what was provided in the certificate of confirmation had no authority to do so without reverting back to the court.  In the circumstances, and as rightly proposed by the Surveyor and Land Registrar the resulting sub divisions from LR 2713 are hereby nullified the same to revert to the original status in the name  of Peter Okeyo Wasonga the deceased herein and a new survey shall be done to determine the actual acreage of  the suit  land before the certificate of confirmation is amended if necessary. 
  3. The Respondent will bear the costs of the new survey and a report to be filed in court on ……………………..
  4. Since this cause is at its tail end it will not be necessary to remove the Respondent as an Administrator.  She will remain one of the Administrators to complete the distribution of the estate herein.

Delivered dated and signed at Migori this 21st day of November, 2024.

    In the Estate of PETER OKEYO WASONGA In the Estate of PETER OKEYO WASONGA