[2013] KEHC 4929 (KLR)

REPUBLIC OF KENYA

High Court at Kakamega

Succession Cause 28 of 2001 [if !mso]> <style> v:* {behavior:url(#default#VML);} o:* {behavior:url(#default#VML);} w:* {behavior:url(#default#VML);} .shape {behavior:url(#default#VML);} </style> <![endif][if gte mso 9]><xml>

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IN THE MATTER OF THE ESTATE OF SAMWEL ANABAKA SHATI ... DECEASED

BEATRICE NALIAKA SITATI .......................................... 1ST PETITIONER

BEATRICE NEKESA KHAEMBA ………..……………. 2ND PETITIONER

V E R S U S

ANDREW OYALO SHATI …………...……………….… 1ST OBEJECTOR

NICHOLAS SHATI …………………………………….… 2ND OBJECTOR

R U L I N G

The deceased in this case, SAMUEL ANABAKA SHATI died on 24th July 1982. His two daughters from the 2nd wife namely BEATRICE NALIAKA SITATI and BEATRICE NEKESA KHAEMBA petitioned the court for letters of administration intestate. The objectors, Andrew Oyalo Shati and Nicholas Shati are the deceased’s grandchildren. They are the sons of Adriano Shati who was from the first wife. They filed a cross petition and sought to be made the administrators of the deceased’s estate. On 7th July 2001, the objectors filed an application seeking to have the grant issued to the petitioners revoked claiming that the petition was filed secretly. The court did revoke the grant on 15th November 2008. On 24. 6.2010 parties agreed by consent to appoint both the petitioners and the objectors as joint administrators.

The main issue for determination is what constitutes the deceased’s estate and how should the estate be distributed. Beatrice Naliaka’s evidence is that his late father had four wives. Each of the wife had children as follows:-

1st Wife - TERESA KHASUNGU

1. ADRIANO SHATI- DECEASED

2. JULIUS

3. AGNES AMBOKO

4. REBECCA OMWELWE

5. TERESINA AMBOKA

2nd Wife - MAKAJO ASIRA

1. BEATRICE NALIAKA

2. PELINA NEKESA (BEATRICE NEKESA)

3. MARGARET MTONGO

3rd Wife - NELSA OMRONJO

1. JOHN MARUNDA -DECEASED

4th Wife - SHAKHUTSA SONGO

1. SAMSON JAPHET

2. SAMUEL SEKANA

3. EPHALINA MAKONJO

4. ROSY OMWENJE

5. BRESIKA OKUTSA

It is the evidence of Beatrice that his father had two plots. Plot number BUTSOTSO/INGOTSE/2440 measuring 8 ½ acres was given to the first wife. The plot was registered in the name of the first wife and upon her death, it was registered in the names of Julius who was to share with his brothers and sisters. Plot number BUTSOTSO/INGOTSE/419 measuring 11 ½ acres was for the three other houses. She would like to distribute the estate as follows:-

SECOND HOUSE- 4 ACRES

THIRD HOUSE - 4 ACRES

FOURTH HOUSE - 3 ½ ACRES

It is the 1st petitioner’s evidence that the objectors are the children of Shati who should pursue their claim from Julius. Their father was from the 1st wife and their claim falls within the 8 ½ acres of plot number 2440. Her father gave the 2nd house its share but the objectors removed the boundaries. The objectors were young in 1982 when the deceased died. The objectors have built their houses on the 11 ½ acre plot. When the deceased divided his land, one Okutoi Oyalo (PW2) was present.

DANIEL OKUTOI OLAO testified as PW2. His evidence is similar to that of Beatrice Naliaka. He testified that the deceased had distributed his land amongst his four wives. The first wife and her children was given her plot while the other three wives’ shared one plot. The land was not distributed according to the children.

ANDREW OYALO SHATI, the 1st objector testified that the deceased was his grandfather. According to him, the deceased had only one plot being plot number 419 measuring 11 ½ acres. He divided his land amongst his sons. His father was given his land where the objector resides with his brother the 2nd objector. His father is from the 1st wife. He would like to have the estate distributed as per the existing boundaries. It is the objector’s position that the deceased did not give the petitioners any land as they were married at the time of distribution. The land was given to five sons only namely ADRIANO SHAT, JULIUS ANAVAKA, JOHN MARUNDA, SAMSON ANAVAKAandJAMES ISIEKONA. Only Julius is alive and the other four sons are deceased. The petitioners’ house has no son.

DW2, KARAKACHA AFUBWA testified that the deceased was his neighbour. The objectors are the deceased’s grandchildren. The deceased had only one plot, number 419 and he called a land officer by the name MATSANGANJIRA to divide his land to his children. DW2 was present and this was around 1968/1969. The deceased remained with one portion meant for Samson and Kisekano who were still young. In 1996 the two called the village elder to distribute the land. The surveyor did not put beacons but boundaries separating the plots were planted.

The petitioners maintain that plot number BUTSOTSO/INGOTSE/2440 belonged to the deceased. The extract from the Kakamega Land Registry for the above plot indicate that the plot is a sub-division from plot number 945. It was registered on 24. 6.2004 and a title deed was issued to CHILAINI ANABAKO JULIUS. The plot is 2. 96 Hectares. Plot number 419 was opened on 7. 10. 1968 and registered in the names of ANABAKA SHATI the deceased herein. The plot is 11 ½ acres.

The court directed that a surveyor visit the suit land and establish how it is being occupied. The survey report dated 21. 6.201 shows that only four people occupy the land as follows:-

1. JULIUS HARAMBE MARUNDA 6. 4 ACRES

And JAMES ANAVAKA SHISEKANAJOINTLY

2. NICHOLAS SHATI (2nd objector) - 2. 20 acres

3. ANDREA SHATI (first objector) - 2. 3 acres

There is a road cutting across the three portions and it appears the road takes the difference of 0. 6 acres. According to the objectors, the land was divided to five sons. If that is to be the case, it would have meant that plot number 419 ought to be occupied by four sons as it is the objectors’ contention that Julius processed his own title. The two objectors are from the same father and it appears that one of the sons has no land on plot 419 as Julius has his own title. Since all the other four sons are deceased, it seems those occupying plot number 419 are the deceased’s grandchildren. I do hold that Julius got his own inheritance and shall not be entitled to get a share from plot number 419.

According to the petitioners the objectors were young by 2004 when plot number 2440 was registered in the names of Julius Anabaka.

The main question for the court to determine is whether the petitioners are entitled to inherit their father’s estate.

Section 38of the Law of Succession Act Cap 160 Laws of Kenya states as follows:-

“38. Where an intestate has left a surviving child or children but no spouse, the net intestate estate shall, subject to the provisions of section 41 and 42, devolve upon the surviving child, if there be only one, or be equally divided among the surviving children.”

From the above section it is clear that the petitioners have an equal right to inherit the deceased’s estate as that of the objectors’ late father. Indeed each of the two petitioners and their other sister are entitled to share equal to that of the objectors’ father. The contention that the deceased had already divided his land does not disqualify the petitioners from asking for their share of the land. Section 29 of the Law of Succession Act includes the petitioners as the deceased’s beneficiaries as it does not matter whether or not they were maintained by the deceased. That is to say even if they were married, they are entitled to inherit.

Section 26of Cap 160 states as follows:-

26. Where a person dies after the commencement of this Act, and so far as succession to his property is governed by the provisions of this Act, then on the application by or on behalf of a dependant, the court may, if it is of the opinion that the disposition of the deceased’s estate effected by his will, or by gift in contemplation of death, or the law relating to intestacy, or the combination of the will, gift and law, is not such as to make reasonable provision as the court thinks fit shall be made for that dependant out of the deceased’s net estate.”

Even if the deceased had distributed his estate and made no provision for his daughters, whether married or not, the law allows any of the deceased’s dependants as defined under Section 29 to approach the court and seek a share of his/her parent’s estate.

Having found that the petitioners are entitled to a share of the deceased’s estate, the next issue is how the estate should be distributed. The surveyor’s report shows that four people resides on the land. It is not clear whether JULIUS HARAMBEE MARUNDA and JAMES ANAVAKA are brothers or whether they are from one house. The objectors herein are from the same father and derive their share from their father. The two jointly occupy 4. 50 acres while the other two people occupy 6. 4 acres. I will reduce the share of the objectors by one acre and similarly reduce the share of the other occupants by one. The petitioners herein are allocated 2. 0 acres of land.

In the end, the application by the objectors seeking to be appointed as administrators of the deceased’s estate dated 26. 5.2010 is dismissed. The grant issued to the petitioners on 21st May 2001 is hereby confirmed. The deceased’s estate comprising plot number BUTSOTSO/INGOTSE/419 shall be distributed as follows:

BUTSOTSO/INGOTSE/419

1. (a) BEATRICE NALIAKA

(b) BELINA NEKSA 2. 0 ACRES

(c) MARGARET MTONGO

2. (a) JULIUS HARAMBEE MARUNDA 5. 40 ACRES

(b) JAMES ANAVAKA SHISEKANE

3. (a) NICHOLAS SHATI …………… 1. 70 ACRES

(b) ANDREA SHATI …………………. 1. 80 ACRES

The petitioner shall be issued with a confirmed grant as herein above. Each party to meet his/her own costs.

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

SAID J. CHITEMBWE

J U D G E