' '' THE REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT BUNGOMA
SUCCESSION CAUSE NO. 125 OF 2013
IN THE MATTER OF THE ESTATE OF BENJAMIN WAKHUNGU LUSUI (DECEASED)
PAUL KARANJA WANYONYI………………………….….…PETITIONER
VERSUS
DAVID SIKOLIA ELI…………….……………………..……1ST OBJECTOR
JOSEPH WAFULA WANYONYI………………….………..2ND OBJECTOR
LABAN MASINDE NANGAKA………………………..……3RD OBJECTOR
AND
MOSES WAMALWA MUKHAMARI……………….INTERESTED PARTY
RULING
1. By way of a Motion application dated 21st August 2024, the Interested Party herein pursuant to Order 51 Rule 1, Order 36 Rule 10, Order 22 Rule 22 of the Civil Procedure Rules and Section 11 (a) and 3A of the Civil Procedure Act, seeks the following orders:
a. That this Honourable Court be pleased to set aside the judgement against the Petitioner delivered on 10th July 2024.
b. That this Honourable Court be pleased to issue orders of stay of Grant of Letters of Administration for the proposed Administrators proceeding the hearing and determination of this application.
c. That this Honourable Court be pleased to re-open the Interested Party Case and Interested Party be given a chance to defend himself.
d. That the costs of this application be provided for.
2. The Motion application is premised on the grounds on the face of it and the Supporting Affidavit of Moses Wamalwa Mukhamari, the Interested Party herein sworn on 21st August 2024.
3. According to the Interested Party, as a result of the judgement issued by this Court under the stewardship of Justice David Kemei, he may lose acquisition of the land parcel Ndivisi/Muchi/5064 which is registered in the name of the Petitioner herein. That he has acquired the power of Attorney from the Petitioner herein, as a result of the Environment and Land Court at Bungoma Civil Case No. 34 of 2012. That he has not acquired land parcel Ndivisi/Muchi/5064 due to an intermeddler, Laban Masinde Nangaka, who has constantly opposed the transfer of land parcel Ndivisi/Muchi/5064 from the Petitioner to himself.
4. No response to the Motion was filed by the Petitioner and Objectors herein. The same is deemed unopposed.
5. Vide directions issued on 17th March 2025, the parties were to canvass the Interested Party’s Motion application dated 21st August 2024, by way of written submission. Only the Applicant complied with the Court directives.
6. I have also considered the Interested Party’s pleadings, the Judgement of the Court as issued on 10th July 2024, the Ruling of the of the Environment and Land Court issued on 23rd January 2020 and the written submissions of the Interested Party herein. The only issue for determination is whether this Court can grant the interested Party herein the orders as sought.
7. It is evident from the judgement of this Court as issued on 10th July 2024, that the Grant of letters of administration duly issued to the Petitioner herein on 31st December 2010 and subsequently confirmed vide Certificate of Confirmation dated 9th March 2011, by the Principal Magistrate’s Court at Webuye was revoked and cancelled respectively as the proceedings to obtain the same Grant were defective in substance and the Grant was obtained fraudulently by making of false statements or concealment from the Court. The court found that the 1st and 2nd households had been left out in the administration of the estate and the Petitioner sold off part of the estate of the deceased prior to him completing the confirmation process.
8. The Interested Party alleges that he purchased land parcel Ndivisi/Muchi/3204 from the Petitioner herein vide a sale agreement dated 22nd July 2009, and that he was to get 0.40 Ha after subdivision. Vide Succession 19 of 2009, at Webuye Principal Magistrate’s Court, the Petitioner herein commenced the petitioning process with regards to the estate of the deceased herein and on 9th March 2011, the Grant was confirmed. The Interested Party then learnt that land parcel Ndivisi/Muchi/3204 was transferred to Jotham Wanyonyi Sakari by the deceased herein. This prompted him to lodge a report with the police and the Petitioner herein was arrested and charged with the offence of obtaining money by false pretence. By consent between the Petitioner and himself, he withdrew the case and the initial land that the Interested Party had purchased from the initial administrator of the estate of the deceased was to be substituted with land parcel Ndivisi/Muchi/5064 which was then to be transferred to him as the same was the share distributed and/or allocated to the Petitioner. The Objectors herein commeced revocation of Grant proceedings before this Court, HCF MISC. 125 of 2013 and the Court proceeded to revoke the grant issued to the Petitioner.
9. The above findings rendered the all dealings including sub-divisions of land parcels belonging to the estate of the deceased and/or others registered in the name of the deceased null and void since the same were acquired by a defective Grant of Letters of Administration. The Court ordered the beneficiaries of the estate of the deceased to appoint new administrators and file fresh summons for Confirmation of Grant, annexing a consent to a distribution schedule within thirty (30) days of the issuance of the fresh Grant or the beneficiaries to file separate proposals on distribution within the same period.
10. The Interested Party has by bringing this Motion application, jumped the gun. It is imperative to remind him that his dealings with the Petitioner with regards to the estate of the deceased were illegal as the Petitioner lacked any authority to deal in the estate of the deceased without regard to other beneficiaries of the estate of the deceased and his concealment of the existence of other beneficiaries of equal priority led to the revocation of the grant. The Petitioner’s actions were contrary to the dints of Section 82 of the Law of Succession Act as such this Court views him as an Intermeddler.
11. The Interested Party herein is a stranger to the estate of the deceased and his dealings with the Petitioner ought to be followed up with the Petitioner. As duly noted in his pleadings the Petitioner is willing to surrender his shares as distributed to him to settle his issue. My brother Justice Kemei had ordered the Petitioner to step aside and allow the other new beneficiaries of the estate of the deceased herein proceeded with the petitioning process. The Interested Party should await fresh distribution among the beneficiaries then proceed to follow up on the portion that will be allocated and/or distributed to the Petitioner.
12. On the balance I do find that this application is devoid of merit and I proceed to dismiss the Interested Party’s Motion application dated 21st August 2024, with no orders as to cost.
Orders accordingly.
Delivered, Signed and dated at Bungoma this 30th day of September 2025.
M.S.Shariff
Judge
In the presence of:
Mr Alovi for the Objectors
Interested Party acting in person
Peter Machoni – Court Assistant
'
IN THE HIGH COURT OF KENYA
AT BUNGOMA
SUCCESSION CAUSE NO. 125 OF 2013
IN THE MATTER OF THE ESTATE OF BENJAMIN WAKHUNGU LUSUI (DECEASED)
PAUL KARANJA WANYONYI………………………….….…PETITIONER
VERSUS
DAVID SIKOLIA ELI…………….……………………..……1ST OBJECTOR
JOSEPH WAFULA WANYONYI………………….………..2ND OBJECTOR
LABAN MASINDE NANGAKA………………………..……3RD OBJECTOR
AND
MOSES WAMALWA MUKHAMARI……………….INTERESTED PARTY
RULING
1. By way of a Motion application dated 21st August 2024, the Interested Party herein pursuant to Order 51 Rule 1, Order 36 Rule 10, Order 22 Rule 22 of the Civil Procedure Rules and Section 11 (a) and 3A of the Civil Procedure Act, seeks the following orders:
a. That this Honourable Court be pleased to set aside the judgement against the Petitioner delivered on 10th July 2024.
b. That this Honourable Court be pleased to issue orders of stay of Grant of Letters of Administration for the proposed Administrators proceeding the hearing and determination of this application.
c. That this Honourable Court be pleased to re-open the Interested Party Case and Interested Party be given a chance to defend himself.
d. That the costs of this application be provided for.
2. The Motion application is premised on the grounds on the face of it and the Supporting Affidavit of Moses Wamalwa Mukhamari, the Interested Party herein sworn on 21st August 2024.
3. According to the Interested Party, as a result of the judgement issued by this Court under the stewardship of Justice David Kemei, he may lose acquisition of the land parcel Ndivisi/Muchi/5064 which is registered in the name of the Petitioner herein. That he has acquired the power of Attorney from the Petitioner herein, as a result of the Environment and Land Court at Bungoma Civil Case No. 34 of 2012. That he has not acquired land parcel Ndivisi/Muchi/5064 due to an intermeddler, Laban Masinde Nangaka, who has constantly opposed the transfer of land parcel Ndivisi/Muchi/5064 from the Petitioner to himself.
4. No response to the Motion was filed by the Petitioner and Objectors herein. The same is deemed unopposed.
5. Vide directions issued on 17th March 2025, the parties were to canvass the Interested Party’s Motion application dated 21st August 2024, by way of written submission. Only the Applicant complied with the Court directives.
6. I have also considered the Interested Party’s pleadings, the Judgement of the Court as issued on 10th July 2024, the Ruling of the of the Environment and Land Court issued on 23rd January 2020 and the written submissions of the Interested Party herein. The only issue for determination is whether this Court can grant the interested Party herein the orders as sought.
7. It is evident from the judgement of this Court as issued on 10th July 2024, that the Grant of letters of administration duly issued to the Petitioner herein on 31st December 2010 and subsequently confirmed vide Certificate of Confirmation dated 9th March 2011, by the Principal Magistrate’s Court at Webuye was revoked and cancelled respectively as the proceedings to obtain the same Grant were defective in substance and the Grant was obtained fraudulently by making of false statements or concealment from the Court. The court found that the 1st and 2nd households had been left out in the administration of the estate and the Petitioner sold off part of the estate of the deceased prior to him completing the confirmation process.
8. The Interested Party alleges that he purchased land parcel Ndivisi/Muchi/3204 from the Petitioner herein vide a sale agreement dated 22nd July 2009, and that he was to get 0.40 Ha after subdivision. Vide Succession 19 of 2009, at Webuye Principal Magistrate’s Court, the Petitioner herein commenced the petitioning process with regards to the estate of the deceased herein and on 9th March 2011, the Grant was confirmed. The Interested Party then learnt that land parcel Ndivisi/Muchi/3204 was transferred to Jotham Wanyonyi Sakari by the deceased herein. This prompted him to lodge a report with the police and the Petitioner herein was arrested and charged with the offence of obtaining money by false pretence. By consent between the Petitioner and himself, he withdrew the case and the initial land that the Interested Party had purchased from the initial administrator of the estate of the deceased was to be substituted with land parcel Ndivisi/Muchi/5064 which was then to be transferred to him as the same was the share distributed and/or allocated to the Petitioner. The Objectors herein commeced revocation of Grant proceedings before this Court, HCF MISC. 125 of 2013 and the Court proceeded to revoke the grant issued to the Petitioner.
9. The above findings rendered the all dealings including sub-divisions of land parcels belonging to the estate of the deceased and/or others registered in the name of the deceased null and void since the same were acquired by a defective Grant of Letters of Administration. The Court ordered the beneficiaries of the estate of the deceased to appoint new administrators and file fresh summons for Confirmation of Grant, annexing a consent to a distribution schedule within thirty (30) days of the issuance of the fresh Grant or the beneficiaries to file separate proposals on distribution within the same period.
10. The Interested Party has by bringing this Motion application, jumped the gun. It is imperative to remind him that his dealings with the Petitioner with regards to the estate of the deceased were illegal as the Petitioner lacked any authority to deal in the estate of the deceased without regard to other beneficiaries of the estate of the deceased and his concealment of the existence of other beneficiaries of equal priority led to the revocation of the grant. The Petitioner’s actions were contrary to the dints of Section 82 of the Law of Succession Act as such this Court views him as an Intermeddler.
11. The Interested Party herein is a stranger to the estate of the deceased and his dealings with the Petitioner ought to be followed up with the Petitioner. As duly noted in his pleadings the Petitioner is willing to surrender his shares as distributed to him to settle his issue. My brother Justice Kemei had ordered the Petitioner to step aside and allow the other new beneficiaries of the estate of the deceased herein proceeded with the petitioning process. The Interested Party should await fresh distribution among the beneficiaries then proceed to follow up on the portion that will be allocated and/or distributed to the Petitioner.
12. On the balance I do find that this application is devoid of merit and I proceed to dismiss the Interested Party’s Motion application dated 21st August 2024, with no orders as to cost.
Orders accordingly.
Delivered, Signed and dated at Bungoma this 30th day of September 2025.
M.S.Shariff
Judge
In the presence of:
Mr Alovi for the Objectors
Interested Party acting in person
Peter Machoni – Court Assistant
'