Zephania Wechuli v Stephen Wafula Wechuli & 1 other

REPUBLIC OF KENYA IN THE HIGH COURT AT BUNGOMA P&A NO.83 OF 2008 IN THE MATTER OF THE ESTATE OF ZEPHANIA WECHULI ZEPHANIA WECHULI..................................................DECEASED AND SIMON TANIMWET SIOYI............................CITOR/APPLICANT VS STEPHEN WAFULA WECHULI......................1ST RESPONDENT SAMUEL WANYAMA WECHULI....................2ND RESPONDENT RULING The deceased Zephania Wechuli died intestate on 29/12/1987 at Chesikaki. He left two sons, Stephen Wafula Wechuli and Samwel Wanyama Wechuli (the Respondents). He was the registered proprietor of land parcel Malakisi/East Sasuri/422 measuring about 7.5 acres. The Petitioner’s evidence is that on 31/5/91 he bought 3 acres of the land from Stephen and on 29/8/1991 he bought from him a further 2 acres. Stephen and Samwel had sold two plots measuring 0.10 hectares of the suit land to Fredrick Simiyu Murwa and John Lasaro. The Petitioner bought the two plots from these buyers. In total he had bought 2.50 hectares of the deceased’s land. He was put into possession and has extensively developed the portions. The Respondents did not file a succession cause to inherit their late father. The Petitioner filed a citation and eventually got letters of administration. He wants the grant confirmed and he be given 2.50 hectares of the deceased’s land and that the balance goes to the Respondents. Stephen swore a replying affidavit to deny that the Petitioner bought any land from him. His case is that the Petitioner is not one of the sons of the deceased and is therefore not entitled to benefit from the estate. He swore that the Petitioner was his father-in-law who was only left to protect the deceased’s land during the tribal clashes in Mt. Elgon. It is my considered view that the Respondents had no capacity to sell any portion of Malakisi/East Sasuri/422 to the Petitioner, or to any other person, as they did not own the land. The land belonged to their father, and they were only going to inherit it and own it following succession proceedings. Any

page 1 of 2