High Court 3218 of 2015

REPUBLIC OF KENYA IN THE HIGH COURT AT KAKAMEGA SUCCESSION CAUSE NO. 615 OF 2009 IN THE MATTER OF: THE ESTATE OF SAMUEL MUKOYA BUTUBISI alias JUMA MUSA RULING The late Samuel Mukoya Bulubisi alias Juma Musa died on 27th August, 2008. His widow, Mary Mukoya filed this succession cause and was issued with a grant of letters of administration intestate on 8th May, 2013. The Objectors herein are brothers to the deceased. The Petitioner's case is that she had six children with the deceased. The deceased left two plots namely South Wanga/Buchifi/438 and 442. The Objectors are her brothers-in-law. According to her, the Objectors were given their own respective plots by her father in-law. She lives in one plot but the Objectors are using the other plot. During the lifetime of her husband, the Objectors were not using the land. The Objectors started cultivating the land immediately her husband died. On his part, Simon Malala Butubisi testified that the deceased was their elder brother. They are claiming Plot Number 442. The deceased was given the land by their late father to hold in trust for them. The deceased was given 5 ½ acres. The other sons were given land as follows: 1. Simon and Shadrack 6 acres jointly on plot No. 972 2. Charles Makokha Plot 970 – 4.6 acres 3. Benjamin Plot 471 – 4.5 acres. It is evident that they had agreed to divide the land and they met at the Assistant Chief's office but before the land was divided, the deceased passed on. Simon is proposing to give the Petitioner 1½ acres out of plot No. 442. I have gone through the pleadings herein. I note that the Petitioner got herself registered as the proprietor of Plot Number South Wanga/Buchifi/438 on 8th July, 2013. The plot was later subdivided to plot numbers 2054 – 2057 on 13th September, 2011. By this time no grant had been issued. It is not clear to me how the land registry effected the registration of the Petitioner and the subsequent sub-divisions. The grant herein was issue don 8th May, 2013. The grant has not been confirmed. The registration of the Petitioner is therefore unlawful. I have read the joint affidavit of Benjamin, Simon, Charles and Shadrack sworn on 14th February, 2013 as well as their supporting affidavit to the chamber summons dated 3rd May, 2010. I have also read the affidavit of Benjamin sworn on 14th December, 2009. The Petitioner did not file any affidavit. From the evidence on record, the only issue is the distribution of the deceased's estate. It is clear to me that there is no dispute involving plot Number 438 measuring 5.5 acres. Simon's evidence is that the

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