TIMOTHY MWAKHWA MURUTU & ANOTHER V JAMES AMUKHOYE ESHITERA [2013] KEHC 4992 (KLR)

Citation: TIMOTHY MWAKHWA MURUTU & ANOTHER V JAMES AMUKHOYE ESHITERA [2013] KEHC 4992 (KLR)
Media Neutral Citation: [2013] KEHC 4992 (KLR)
Court: High Court
Court station: High Court at Kakamega
Case number: Succession Cause 142 of 1992
Alternative citations: TIMOTHY MWAKHWA MURUTU & ANOTHER V JAMES AMUKHOYE ESHITERA[2013]eKLR
Judgment date: 27 February 2013
Language: English
Type: Judgment

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REPUBLIC OF KENYA

High Court at Kakamega

Succession Cause 142 of 1992

IN THE MATTER OF THE ESTATE OF MURUTU WERE ....................... DECEASED

TIMOTHY MWAKHWA MURUTU .....................................................1^ST APPLICANT

JACKSON WERE MURUTU ............................................................ 2^ND APPLICANT

V E R S U S

JAMES AMUKHOYE ESHITERA ……………………………..……. RESPONDENT

R U L I N G

The applicants are seeking an order of injunction restraining the respondents from constructing or cultivating plot number NORTH WANGA/NAMAMANI/889 pending the determination of this succession cause. It is the applicants’ contention that a grant of letters of administration that was issued to the petitioner was revoked on 22.8.2003. The petitioner’s son, one James Amukhoye Eshitera is constructing and ploughing the deceased’s estate. The petitioner is a stranger to the deceased.

Miss Omar, counsel for the respondent relied on the respondent’s replying affidavit sworn on 5^th December 2012. Counsel submitted that the respondent has been living on the suit land since time immemorial. The respondent avers that his house is on the suit land and the land belongs to Murutu Were. Counsel submitted that the grant has not been confirmed. The petitioner is the respondent’s father. A grant of letters of administration intestate was issued to the petitioner on 25^th July 1996, the petitioner filed an application for the confirmation of the grant dated 4^th March 1997. On 16^th July 1978 Justice B. K. Tanui declined to confirm the grant stating that the petitioner was not the son of the deceased. The judge noted that the deceased’s son was TIMOTHY WAKHWA MURUTU.

On 12^th June 2002, TIMOTHY MWAKHA MURUTU and JACKSON WERE MURUTU filed an application to have the grant issued to the petitioner revoked. The two averred that they are the sons of the late MURUTU WERE. On 22^nd August 2003, Justice Hatari Waweru granted that application and the grant was revoked. The court ordered that a fresh grant be issued to the objectors jointly.

The respondent herein is the petitioner’s son who is now deceased. It is clear from the record that the petitioner is not related to the deceased. I do find that the application is merited and the same is granted as prayed. The respondent is hereby restrained form constructing or cultivating the deceased estate comprising plot number N. WANGA/NAMAMLI/889. The respondent shall continue residing on the land pending the finalization of the Succession Cause.

Since no fresh grant was issued as per the ruling of Justice Hatari Waweru of 22^nd August 2003, I do order that a grant be issued to the two objectors jointly. The respondent contends that the 1^st objector is deceased but no death certificate has been annexed. I do further order that the applicants filed an application for the confirmation of the grant as a matter of urgency and serve it upon the respondent.

In the end, the application dated 25^th February 2011 is granted as prayed. Each party to meet his own costs.

Delivered, dated and signed at Kakamega this 27^th day of February, 2013

SAID J. CHITEMBWE

J U D G E

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