Juma & another v Wepukhulu & another (Both being administrators of the Estate of Wepukhulu Wanambisi Maundende)

plaintis and in default the Honourable Deputy Registrar of this Honourable court be authorized to execute the same on behalf of the defendants. c. In Alternative to prayer No (a) and (b) above that there be a declaration that the plaintis have acquired title to the portion of 9 ½ acres in land parcel No. E. Bukusu/ N Sangalo/661 under their occupation by virtue of adverse possessions under section 7 and 38 of the Limitation of Actions Act cap 22 an d further declaration be made that the Defendants hold the said 9 ½ acres in E. Bukusu/N. Sangalo/661 as trustees only of the plaintis. d. Costs of this application be provided for. 2. The application is supported by the adavit of Wanambisi Stephen Juma, the 1st plainti/applicant herein and grounds apparent on the face of the said application. By way of a response, the 2nd defendant/respondent through the rm of M/s Fwaya Masakhwe Were & Advocates drew/prepared Grounds of opposition dated March 10, 2023 and led in court on March 14, 2023 respectively. The 1st defendant/respondent did not le any response to the application. 3. When the application came up for directions on the April 25, 2023, the parties agreed by consent to canvass the same by written submissions. Plaintis/applicants Written Submissions 4. The plaintis through the rm of M/s Njiru Boniface & Co. Advocates led their submissions on May 18, 2023. According to the plaintis, the 1st and 2nd defendants are join administrators of the Estate of Wephukhulu Wanambisi Maundende appointed by the High Court in Kakamega HC Succession Cause NO. 184 of 1986. 5. The applicants also contend that the rst defendant/respondent in this suit has led an adavit admitting the entire claim of the plaintis. They submitted that the adavit of David Wafula Wepukhulu, the 1st defendant herein which constitutes admission of the Plaintis’claim should be taken as binding upon Moses Maundede, the 2nd administrator herein because they are join Administrators. They further submitted that the defendants being administrators of the Estate of Wepukhulu Wanambisi Maundede are tasked with administering the Estate of the deceased and one administrator has admitted to the fact that the parcel of land was sold. They averred that both administrators cannot act in divergent ways and that an admission by one Administrator mean that the other administrator is bound by the same admission and that this honourable court ought to enter judgment binding both administrators the same way they are bound by the grant issued by the court. 6. They relied on the following cases and citations: 1. Section 79 of the Law of Succession Act Order 13 Rule 2 CPR 2. Re- Estate of Makokha Idris Khasabuli (deceased) 2019 eKLR 2Nd Respondent’s Submissions 7. The 2nd respondent submitted in opposition to the application that the defendants were sued separately as defendants. They submitted that having been sued as distinct and separate parties, the 2nd defendant led separate pleadings as of right, denying the plainti’s claim. He submitted that the plaintis cannot chose the positon taken by the 1st defendant as binding on the 2nd defendant and not that taken by the 2nd defendant. Since each defendant has a right to choose how they want to respond to the plainti’s claim, it therefore becomes necessary to take evidence for the court to determine whose https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/18693/eng@2023-07-04 2

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position between the two is in the interest of the estate of the deceased. He submitted that evidence can only be obtained upon hearing the parties in the main suit and not through interlocutory applications. He relied in the following cases and David authorities. 1. Sironga Ole Tukai v Francis Kiprotich Arap Kirui & 2 others (2014) eKLR 2. Section 22 (b) of the Land Control Act. Analysis And Decisions 8. I have considered the notice of motion dated November 9, 2022, application under review dated November 9, 2022, the supporting adavit sworn by Wanambisi Stephen Juma, grounds on the face of the application. I have also considered the grounds of opposition by the 2nd defendant/respondent as well as the rival submissions by the applicants and the 2nd defendant/respondent. The application under consideration is brought under order 13 Rule 2 CPR which stipulates as follows: “ 2 Any party may at any stage of a suit, where admission of facts has been made, either on the pleadings or otherwise, apply to the court for such judgment or orders as upon such admissions he may be entitled to without waiting for the determination of any other question between the parties; and the court may upon such application make such order, as the court may think just.” 9. The 2nd defendant who is sued separately as a party has led a statement of defence dated November 14, 2022 denying the plainti’s claim. The 1st defendant on his part led an adavit sworn on October 14, 2022 admitting the plainti’s claim. Based on the admission by the 1st defendant, the plaintis want this honourable court to treat the said admission by the 1st defendant binding as against the 2nd defendant/Respondent herein as well. Though the defendants who are administrators of the Estate of Wepukhulu Wanambisi Maundende have been sued jointly, the law allows the two administrators to either take common or dierent positons. Where the two administrators take dierent positions, the position taken by one administrator cannot be taken as the position taken by the second administrator. In such scenario, the trial court will require the parties to tender evidence to determine the positon that is in the best interest of the estate of the deceased person. positon is obtained in the circumstances of this case. Since the 1st defendant has taken a divergent position to that of the 2nd defendant regarding the claim by the plaintis, this court takes the view that this case is suitable to proceeds to hearing to determine the best interest of the Estate of Wepukhulu Wanambisi Maundende (deceased). 10. The upshot of my nding is that the Notice of Motion application dated November 9, 2022 is without merit and the same is hereby dismissed with costs. It is so ordered. READ, DELIVERED AND SIGNED IN OPEN COURT AT BUNGOMA THIS 4TH JULY, 2023. HON. E.C. CHERONO ELC JUDGE In the presence of: M/s Mugo holding brief Boniface Njiru 2nd defendant – present 1st defendant – present Joy – C/A https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/18693/eng@2023-07-04 3

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