Salome Omumia Amukambwa v Manase Chiteresi Murunga & 1 other

REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT KAKAMEGA SUCCESSION CAUSE NO. 567 OF 2006 IN THE MATTER OF THE ESTATE OF HARRON MURUNGA .................DECEASED AND SALOME OMUMIA AMUKAMBWA............... PETITIONER VERSUS MANASE CHITERESI MURUNGA............1ST PROTESTOR JOHN MUTESA MURUNGA.......................2ND PROTESTOR RULING 1. This succession cause relates to the estate of the late Harron Murunga(herein referred to as the deceased). The deceased was survived by a wife, Salome Omumia Amukambwa (herein referred to as the petitioner) and two brothers, Manase Chiteresi Murunga and John Mutesa Murunga (herein referred to as the protestors). The deceased left behind a parcel of land known as S/Kabras/ Bushu/1094 measuring 2.2 hectares. 2.The petitioner has filed an application for summons for confirmation of grant dated 7th February 2017 seeking for orders that the grant of letters of administration made on 11 th November, 2006 be confirmed in terms of paragraph 5 of her supporting affidavit that land parcel No. S/Kabras/Bushu/1094 transmit to her and the deceased’s daughter, Petronilla Lukania Harun. 3. The application was opposed by the protestors who filed a separate summons for confirmation of grant dated 17 th July, 2017 in which they have proposed that the said land parcel be shared equally between themselves and the petitioner. 4. The court gave directions that the matter be disposed of by way of viva voce evidence. The Petitioner testified and called her daughter Petronilla as a witness in the case. The protestors also testified in the case. They did not call any witness in the case. 5. It was the evidence of Salome that she married the deceased in 1971. That they had one daughter, Petronilla. That they were living on land parcel S/Kabras/Bushu/1094 upto the time the deceased died in 2006. That she still lives on the land. That each of the protestors has his own parcel of land. 6. Petronilla testified that she is a daughter to the deceased. That she was born in 1973 and that she is the only child. That she lives with her mother on land parcel No. 1094. She has lived there since when she was born. She has 2 children and is not married. That the protestors have their own parcels of land. 7. The protestors stated in their evidence that the deceased was their brother. That the petitioner is a wife to the deceased. That their father had given land to each of the brothers. The deceased was given land parcel No. S/ Kabras/ Bushu/1094. Manase was given land parcel No. S/ Kabras/Bushu/676 while John Mutesa was given land parcel No. S/ Kabras/ Bushu /675 . However that the deceased did not sire any children with the petitioner. That the petitioner had a daughter, Petronilla, when she was married by the deceased. That as the deceased did not sire a child with the petitioner their luhya customary law dictates that if a woman does not sire children with a deceased brother, she is required to share the deceased’s land with the brothers of the deceased brother. That that is why they have proposed that the deceased’s land be shared equally between them and the petitioner. 8. The advocate for Salome, Mr. Athunga, submitted that it has been established that the land in issue belonged to the deceased. That the deceased left behind a widow and a daughter. That the protestors have their own parcels of land that they inherited from their father. That the deceased inherited his parcel of land from his father. The petitioner should therefore inherit the estate of her husband. He submitted that the Luhya custom being relied on by the protestors is repugnant to justice.

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