[2022] KEHC 11767 (KLR)

In The Matter of The Estate of Felix Likuyi (Deceased) (Succession Cause 932 of 2011) [2022] KEHC 11767 (KLR) (13 May 2022) (Judgment)

Neutral citation: [2022] KEHC 11767 (KLR)

Republic of Kenya

In the High Court at Kakamega

Succession Cause 932 of 2011

WM Musyoka, J

May 13, 2022

Judgment

1. The application for determination is dated March 29, 2017. It is an application for confirmation of grant, purported to be brought at the instance of Harrison Likuyi Amayana and Josephine Amukowa Likuyi. The affidavit is sworn in support by only one of them, who I cannot identify. I shall refer to the person who has sworn the supporting affidavit as the applicant.

2. The persons identified as the survivors of the deceased are listed as Sofia Amukowa Likuyi, Mildred Likuyi, Josephine Amukowa Likuyi, Francis Mulando, Harrison Likuyi Amayana and Raphael Anunda. The nature of the relationship between them and the deceased is not disclosed. One asset is listed as available for distribution, being Butsotso/Ingotse/1047. The beneficiaries are grouped into three, of two each, and it is proposed that Butsotso/Ingotse/1047 be shared out equally between the groups with each taking 2 ½ acres. Sofia Amukowa Lukuyi is put together with Mildred Likuyi, while Josephine Amukowa Likuyu is grouped with Francis Mulando, and Harrison Likuyi Amayana with Raphael Anunda.

3. It would appear that the application has not been responded to, by way of an affidavit of protest. What I see on record are witness statements made by Mildred Likuyi, Josephine Likuyi and Frank Obutichirani Samuel Abuko. The three are replicas of each other. The makers of the statements are the two widows of the late James Amukowa Likuyi and a cousin of the said deceased.

4. There is a joint affidavit on distribution, sworn on September 25, 2015, on by Mildred Likuyi and Josephine Likuyi. They aver to be the first and third wives of the late James Amukowa Likuyi, while the other is a cousin of the deceased. They state that the deceased had not been survived by either a widow or children. They state that Harrison Likuyi Amayana was a son of Raphael Anunda, a living brother of the deceased. They argue that it was Raphael, and not Harrison who was entitled. They state that during land adjudication, the deceased was not allocated land, and that it was their late husband, James Amukowa Likuyi, who gave him Butsotso/Ingotse/1047, hence its odd numbering in the middle of Butsotso/Ingotse/311 and 312, which are registered in the names of Raphael Anunda and James Amukowa Likuyi. They assert that Butsotso/Ingotse/1047 was always occupied by the family of their late husband, James Amukowa Likuyi. They aver that their husband was the eldest son of their father-in-law, and the deceased herein was the youngest, and that their late husband cared for him, as he was sickly, and it was their late husband who gave him the land, and buried him on the land. They urge that Butsotso/Ingotse/1047 be allocated to their side of the family. They aver that Harrison was only interested in the land so that he could sell it.

5. The other witness statement is by Afia A. Amukoa, another widow of the late James Likuyi. She avers that the land in dispute, Butsotso/Ingotse/1047, was land that the deceased had inherited from her late father-in-law, Daniel Likuyi. Daniel Likuyi is said to have had four sons. He is said to have had given Butsotso/Ingotse/291, which measures 7½ acres, to the late Ambunya Likuyi; Butsotso/Ingotse/311, measuring 7½ acres, to Raphael Anunda, Butsotso/Ingotse/321, measuring 12 acres to the late James Likuyi; Butsotso/Ingotse/1047, measuring 7½ acres to the late Felix Likuyi, the deceased herein. It is averred that the deceased was not survived by either a spouse or children. The maker of the statement supports the proposals made in the application, saying that her late husband had distributed his land to his family, and what was on offer to his family was adequate and reasonable. She states that the late James Likuyi had desired that his share be given to his son Erick Likuyi, who had been borne outside wedlock.

6. Initially, directions had been given on July 11, 2017, for disposal of the matter by way of written submissions. Subsequent directions were given on 11th April 2018, for disposal of the matter by way of oral evidence.

7. The oral hearing happened on November 4, 2019. Josephine Amukowa Likuyi was the first on the witness stand. She testified that the deceased was a brother of her late husband. Her case was that Butsotso/Ingotse/1047 had been given the deceased by her late husband, and that it was on that basis that she was claiming it. She argued that since the deceased did not have a wife and children, then it was her family that was entitled to inherit the entire property. She asserted that it was the family of James Amukowa that had been using the land all along. She stated that the late James had three wives. The first wife had twenty members in all, including the widow, children and grandchildren. The second house had fifteen members, being widow, children and grandchildren.

8. During cross-examination, she stated that her late father-in-law had four sons. According to her, before he died, he had shared out his land amongst three of the sons. She testified that her husband was given Butsotso/Ingotse/312, Raphael Anunda Butsotso/Ingotse/311 and Felix Butsotso/Ingotse/1047. She testified that Butsotso/Ingotse/311 and 312 were put together and registered as Butsotso/Ingotse/1047. She asserted that Butsotso/Ingotse/1047 was hived off Butsotso/Ingotse/312. She was shown a copy of the green card for Butsotso/Ingotse/312, whose entry number 4 of 25th February 2011 showed that the same was subdivided into Butsotso/Ingotse/2771 and 2772, and confirmed that the said green card did not have any entry referring to Butsotso/Ingotse/1047. She said that she was opposed to Butsotso/Ingotse/1047 being shared equally amongst the brothers of the deceased or their families. She started that she wanted the entire Butsotso/Ingotse/1047 to devolve to the estate of her late husband. She conceded that Erick Likuyi was one of the sons of the deceased, but not from any of his three wives. She asserted that her late husband did not desire that Butsotso/Ingotse/1047 devolves upon the said Erick Likuyi, on grounds that he had not benefited from Butsotso/Ingotse/312. Josephine Amukowa Likuyi was recalled to the witness stand to produce several documents, being two survey maps of the land in question and green cards for Butsotso/Ingotse/311 and 312.

9. Mildred Likuyi testified next. She identified Afia and Josephine Likuyi as her co-wives, and Harrison as a nephew, being a son of one of the brothers of their husband. She testified that the deceased got Butsotso/Ingotse/1047 from their late husband James. She asserted that Butsotso/Ingotse/1047 belonged to her late husband. During cross-examination, she stated that her late father-in-law had distributed his land amongst two out of his four sons. Ambunya was given Butsotso/Ingotse/290, the late James Butsotso/Ingotse/312 and Raphael Anunda Butsotso/Ingotse/311. She stated that the deceased was small when that was happening, and the father-in-law retained his portion of land. Later the late James gave the deceased a portion of his land, Butsotso/Ingotse/312. She asserted that she did not agree with the proposals made by Harrison.

10. The case for the other side opened on July 15, 2021. Harrison Likuyi Amayana took the stand. He stated that the deceased was his uncle, being his own father’s younger brother. He testified that Josephine Amukowa Likuyi was recalled to the witness stand to produce several documents, being two survey maps of the land in question and green cards for the same. He stated that Butsotso/Ingotse/1047 was registered in the name of the deceased. He reiterated that his grandfather, Daniel Likuyi had four sons, and that he had given each one of them land. Ambunya got Butsotso/Ingotse/291, Raphael Likuyi Butsotso/Ingotse/311, James Amukowa Butsotso/Ingotse/312 and the deceased Butsotso/Ingotse/1047. He testified that all the family of the deceased sat and settled on him as administrator, and he was to share out the land amongst the brothers of the deceased. He stated that land was 7 ½ acres, and when split into three each family got 2 ½ acres. He asserted that Butsotso/Ingotse/1047 was not land given to the deceased by the late James. He stated that Butsotso/Ingotse/1047 was situated between Butsotso/Ingotse/311 and 313.

11. Afia Amukoa testified next. She said that Butsotso/Ingotse/1047 had not been given by the deceased by her late husband, James Likuyi, asserting that the deceased got that land from his own father. She stated that each of the brothers of the deceased had each been given land. She conceded that the deceased used to be taken care of by her late husband, and that when the deceased died, she was buried on Butsotso/Ingotse/1047. She stated that she supported the proposal that Butsotso/Ingotse/1047 be shared equally amongst the families of the three brothers of the deceased.

12. At the close of the oral hearings, directions were given, for filing of written submissions. Both sides have complied, by filing their respective written submissions. I have read through them and noted the arguments made therein.

13. What I am called upon to determine is a summons for confirmation of grant. The deceased died on April 12, 1980, before the Law of Succession Act, Cap 160, Laws of Kenya, came into force. Under section 2(2) of the Law of Succession Act, the law to apply at distribution of the estate should that that governed such estates before the Law of Succession Act came into force. The deceased died intestate, and, therefore, the applicable law ought to be customary law. None of the parties made an attempt to place before me the relevant customary law. The deceased person appears to have been a Luhya, presumably from the Batsotso sub-tribe. The presumption would be that the applicable law to his estate ought to be Luhya customary law, and more particularly of the Butsotso.

14. As indicated above, no attempt has been made to place the relevant customary law before me, or to make proposals on distribution which are in line with the relevant customary law. The applicant appears to anchor distribution of the estate of an intestate, who had no surviving widow or surviving children or surviving parents, under section 39 of the Law of Succession. Under that provision, the property is shared equally amongst his siblings, and that is what the applicant appears to be proposing, although not quite.

15. As the content of the applicable customary law has not been placed before me by either party, I shall presume that they intend that the estate be shared out as per the provisions of the Law of Succession Act. Section 39 provides for equal distribution amongst the siblings of the deceased, where the said deceased is not survived by a widow, children or parents. In this case, am told that all the siblings of the deceased have all died. The father of the deceased had four sons. That would mean that the estate of the deceased should have been shared equally between three of his siblings, if they survived him, or by their survivors, if there are any. The three brothers of the deceased all had families. The proper course of action should be to devolve the shares to the estates of the three, for subsequent devolution in cases in the estates of the said brothers, where all the persons beneficially entitled to a share would be involved. The late brothers of the deceased are said to be Francis Likuyi Mulando, Raphael Anunda Likuyi and James Amukowa Likuyi.

16. The family of the late James Likuyi pushed a case that the entire estate ought to devolve wholly upon the estate of their late husband, ostensibly on grounds that it was him who had gifted Butsotso/Ingotse/1047 to the deceased. The material placed before me fell short of establishing any such gift. There is no evidence that Butsotso/Ingotse/1047 was excised from a property belonging to the late James Likuyi. Even if that were the case, it has not been demonstrated that the law of succession, whether customary or statutory, required that, in the event of the beneficiary of the gift dying without immediate survivors, the gifted land ought to be restored to the person who made the gift or to his family or his estate.

17. The final orders are:a.That Butsotso/Ingotse/1047 shall be shared out equally between the estates of the late Francis Likuyi Mulando, the late Raphael Anunda Likuyi and the late James Amukowa Likuyi;b.That the grant herein is confirmed in those terms;c.That a certificate of confirmation of grant shall issue accordingly to the administrators;d.That any party aggrieved by these orders is at liberty to challenge the same at the Court of Appeal in the next twenty-eight days; ande.That each party shall bear their own costs.

DELIVERED, DATED AND SIGNED IN OPEN COURT AT KAKAMEGA ON THIS 13THDAY OF MAY, 2022. WM MUSYOKAJUDGEErick Zalo, Court AssistantMr. Mukele, instructed by Mukele & Co., Advocates for the objector.Mr. Mango, instructed by DSG Mango & Co., Advocates for the respondent.