[2018] KEHC 1061 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KAKAMEGA

SUCCESSION CAUSE NO. 106 OF 2008

IN THE MATTER OF THE ESTATE OF THE LATE DORICA LUMIRE MAPESA aka DORIKA MAPESA LOLUMIRE, DECEASED

JUDGMENT

1. The proceedings herein are unique. They originated from the consolidation of two succession causes that had been filed previously in respect of the estate of the deceased herein, being Mumias SRMCSC No. 53 of 2006 and Kakamega HCSC No. 416 of 2007. Grants had been made and confirmed in both causes. The instant cause was for revocation of the grant made in Mumias SRMCSC No. 53 of 2006. The said grant was revoked on 10th February 2011, and it was directed that that cause be consolidated with Kakamega HCSC No. 416 of 2007, and the consolidated cause was to thereafter be mentioned for further directions. The order of 10th February 2011 ought to have terminated the proceedings in this cause seeing that the same was limited to revocation of the grant made by the lower court and that once that grant was revoked the instant cause was spent and the file ought to have been closed. Curiously, thereafter the instant cause was treated as the main cause and the proceedings were continued herein, including a fresh grant being made herein rather than in what should have been the main file, Kakamega HCSC No. 416 of 2007. No orders were made on the fate of the grant made in Kakamega HCSC No. 416 of 2007 nor of its confirmation.

2. The proceedings that I am determining stem from directions that were given herein on 19th May 2011, that the parties, the administrators herein, do file affidavits of distribution. The directions were complied with, and an oral hearing was conducted founded on the affidavits on distribution. I have perused through the two High Court files, and noted that no confirmation application has been filed by the parties, to at least provide a foundation for the two affidavits on distribution to stand on. I shall presume that the proceedings conducted herein were founded on section 71 of the Law of Succession Act, Cap 160, Laws of Kenya, and therefore that what I am considering is confirmation of the grant made in this cause on 19th May 2011.

3. According to the pleadings in Mumias SRMCSC No. 53 of 2006 and Kakamega HCSC No. 416 of 2007, the deceased died on 6th February 1994 at age 80 years. The proceedings in Mumias SRMCSC No. 53 of 2006 indicate that she was survived by only one individual, according to the letter of the Chief of Lubinu Location dated 6th August 2006, Silas Okumu Simeya. He obtained representation to her estate in Mumias SRMCSC No. 53 of 2006, the grant was confirmed on 25th January 2008, and the sole asset of the estate, being East Wanga/Lubinu/66, devolved wholly upon him. The proceedings in Kakamega HCSC No. 416 of 2007 indicate that the cause was initiated by Felista Kweyu Shieyo and George G. Baraza, in their capacities as daughter and grandson, respectively, of the deceased. There is a letter on record from the Assistant Chief of Lubinu Sub-Location, dated 2nd May 2006, which identifies the two and Silas Okumu Simeyo as the survivors of the deceased, or the persons entitled in succession to East/Wanga/Lubinu/66. A grant was made to the two in Kakamega HCSC No. 416 of 2007, the same was not confirmed. The grant made on 19th May 2011 herein was to Silas Okumu Simeya and Felista Kweyu Shieyo.

4. In compliance with the directions of 19th May 2011, both administrators filed affidavits of distribution. Felista Kweyu Shieyo filed hers on 9th June 2011. Her case is that the deceased herein was her mother, and also the mother of one Selphar Nandwa Barasa. The said Selphar Nandwa Barasa died leaving behind three sons – George G. Barasa, John Makokha Barasa and Paul Lutta Barasa. She avers that it was her and the three grandsons of the deceased who were entitled to inherit the deceased’s estate. She states that the deceased had been inherited by one Simeyo Okumu, who is now deceased, and who was the father of her co-administrator, Silas Okumu Simeyo. She avers that the deceased was the owner of East/Wanga/Lubinu/66. She makes the case that Silas Okumu Simeyo is not entitled to a share in East/Wanga/Lubinu/66 as he was neither a son of the deceased nor of the father of the deponent of the affidavit, Felista Kweyu Shieyo. She argues that Silas Okumu Simeyo’s father, Simeyo Okumu, had his own land, which Silas Okumu Simeyo, ought to inherit instead. She states further that the deceased had given Silas Okumu Simeyo 2. 5 acres out of East/Wanga/Lubinu/66 as a gift, the portion is marked on the ground and he utilizes it and they are willing to let him retain it. She and her sister had allegedly been given 4. 0 acres which she and her sister’s children occupy and utilize exclusively. She asserts that she and her nephews had agreed on how to share the said 4. 0 acres as between themselves.

5. Silas Okumu Simeyo filed his affidavit on 3rd September 2011. He avers that the children of Selphar Nandwa Barasa, that is to say George G. Barasa, John Makokha Barasa and Paul Lutta Barasa, are not entitled to a share in the land in question, as they were sons of a John Barasa who was not linked to the land in question. He says that his father, had no other land apart from East/Wanga/Lubinu/66, where he lived and was buried. He denies that he had been given only 2. 5 acres out of the land, saying that he and the deceased lived on the land and there were no boundaries between them. He avers that the land was registered the joint names of himself and the deceased, and that upon her demise her interest vested in him as surviving proprietor. He expressed his willingness to cede 1. 5 acres to Felista Kweyu Shieyo.

6. Directions were given on 25th July 2012, for the disposal of the matter by way of oral evidence. The oral hearing commenced on 29th June 2015, with Felista Kweyu Shieyo’s side taking the stand. The first on the stand as PW1 was George Geoffrey Baraza. He confirmed that when his maternal grandfather, Mapesa Okumu died, his maternal grandmother, the deceased herein, was inherited by Mapesa Okumu’s brother, Simeyo Okumu, the father of Silas Okumu Simeyo. He stated that Silas Okumu Simeyo’s mother was not the deceased, but a woman known as Auma, who was married to Okumu Simeyo. He said that East/Wanga/Lubinu/66 initially belonged to Mapesa Okumu, who died before land registration was done in the area in the mid-1960s, which then meant that the land was registered in the name of his widow, the deceased herein. He stated that the land never belonged to Okumu Simeyo, saying that he had sold his own land. He testified that the land was occupied and utilized by Felista Kweyu Shieyo, himself and his siblings, and Silas Okumu Simeyo. He was shown a green card for the property which indicated that the same had been registered in 1966 in the names of the deceased and Okumu Simeyo, and subsequently in 1972 in the names of the deceased and Silas Okumu Simeyo, however the individual shares are not indicated.

7. PW2 was Felista Kweyu Mapesa Shieyo. She said that she was married to a Shieyo. She said that the deceased was her mother, who had been married to her father, Mapesa Simeyo, and when the latter died she was inherited by her husband’s stepbrother, Okumu Simeyo. She stated that the deceased and Okumu Simeyo had no children of their own, but Okumu Simeyo had a son called Silas Okumu Simeyo. Okumu Simeyo had sold his own land, so he moved in with the deceased in her late husband’s property, bringing along his son with him. She testified that the deceased allowed Silas Okumu Simeyo to utilize 2. 5 acres of her husband’s land, while the rest was utilized by her sons and those of her sister. She mentioned that her sons and nephews had entered into contracts with Mumias Sugar Company Limited to grow sugarcane on the subject land, and produced as exhibits copies of two of such agreements. She said that she was also growing sugar on the same property and had a contract too, copy of which she put in as evidence. She conceded that during land registration the subject land, East/Wanga/Lubinu/66, was registered in the names of the deceased and Okumu Simeyo.

8. PW3 was Samuel Juma Okumu, a brother-in-law of the deceased. He stated that the land was initially registered in the name of the deceased. He stated that Okumu Simeyo had his own land, which he sold, and then left his own home and went to live with the deceased at her own home. He said that the subject land was being utilized by the family of the two daughters of the deceased, as well as by Silas Okumu Simeyo. His proposal was that the two daughters of the deceased get two acres each, while Silas Okumu Simeyo gets 2. 5 acres. He said that he was unaware that the subject land had been registered in the joint names of the deceased and Silas Okumu Simeyo. He mentioned that the clan had sat over the land and resolved that the daughters inherit a portion of the land, which position was opposed by the local Assistant-Chief.

9. The case for Silas Okumu Simeyo opened on 2nd June 2016. He confirmed much of what was said by the previous witnesses save that he added the following. He testified that Mapesa Okumu died in 1944, and his own father, whom he named as Simeyo Luta Okumu, died in 1962. He stated that his father had his own land, and his brother Mapesa Okumu lived on that land. Land adjudication was done in 1966 and the land in question, East/Wanga/Lubinu/66, was registered in the names of the deceased and Okumu Simeyo. He asserted that Okumu Simeyo in that case referred to himself, and not his father. He referred to a dispute between his father and his uncle, Olwichi, after Mapesa died in 1944 over Mapesa’s land that Olwichi had taken. The tribunal in the end awarded his father 6. 5 acres. She said that Felista and her sons and nephews had no home on the land, and lived elsewhere.

10. Silas Okumu Simeyo called one witness, Makokha Okore Ibrahim. He was the village elder for the parties. He confirmed that the subject property was registered in the joint names of the deceased and Silas Okumu Simeyo. He said that he moved into the area in 1973 and was not familiar with the history of the land.

11. The parties placed several documents as exhibits before the court to support their respective positions. There are two official receipts issued on divers dates in 1966 in the names of the deceased and Okumu Simeyo under the Land Adjudication Ordinance. There is also a green card in respect of East/Wanga/Lubinu/66. It reflects that the register for East/Wanga/Lubinu/66 was opened in 1966, and it reflects the deceased and Okumu Simeyo as the original proprietors of the subject parcel of land having been registered as such on 17th May 1966. Those particulars changed slightly in 1992 when the names of the proprietors were changed to reflect their full names as appearing in their respective national identity cards, that is to say Dorka Olumire Mapesa and Silas Okumu Simeyo. The next change came in 2007, when Silas Okumu Simeyo became the sole registered owner of the property. There is a title deed for East/Wanga/Lubinu/66 issued on 6th March 2008 reflecting Silas Okumu Simeyo as sole proprietor of the subject property. Then there are the 1951 proceedings before the Mumias Native Tribunal between Semeo Luta and Olwichi Okumu.

12. At the close of the oral hearing, the parties were directed to file written submissions. They complied. I have gone through the same. Unhelpfully, the purported written submissions only summarize the facts of the case. No case law has been cited to support the positions articulated by the parties. One of the parties has cited the Land Registration Act, which I presume refers to Act No. 3 of 2012. The events the subject of these proceedings predate 2012 and an effort should have been made to point to the law that applied at the material time which was no doubt relevant to the matters at hand.

13. Be that as it may. This is a succession cause relating to the estate of the deceased herein, Dorka Olumire Mapesa. The matter is at the stage of distribution of the estate. At distribution only three factors count –ascertainment of the property available for distribution, identification of the survivors and the persons beneficially entitled, and identification of the shares of each of the persons beneficially entitled. Succession law is all about the property of a dead person, therefore at the heart of any succession cause is the property the subject of the proceedings. The issues around who the survivors or beneficiaries or heirs or persons beneficially entitled are really only secondly. It’s all about the property, and before the court proceeds to identify the beneficiaries and their shares it must first resolve the question as to what assets make up the estate, for if there are no assets to be shared out it would be academic to indulge in identifying or ascertaining the heirs and beneficiaries.

14. At the heart of the current dispute is the property known as East/Wanga/Lubinu/66. Both sides appear to take the view that the same formed the estate of the deceased herein hence the need by both of them to mount a succession cause. The immediate descendants of the deceased appear to take the position that the same was registered in her sole name, while the other claimant takes the position that the same was jointly owned by the deceased and himself, and upon her demise the same vested automatically in him. The parties have attempted to trace its history and to place relevant evidence before the court. The role of the probate court is to distribute property that is established as forming part of the estate the subject of the proceedings before it. In this case the property in question is registered. The court shall therefore confine itself to what is on the register.

15. From the green card on record, the said property was registered under the Registered Land Act, Cap 300, Laws of Kenya, now repealed. It was registered in the joint names of the deceased and another without indicating the shares of each of the two proprietors. Registration of property in the names of more than one person is dealt with in sections 101, 102 and 103 of the said Act. The relevant provisions state as follows: -

‘101(1). An instrument made in favour of two or more persons, and the registration giving effect to it, shall show –

(a) whether those persons are joint proprietors or proprietors in common; and

(b) where they are proprietors in common, the share of each proprietor …

102(1). Where the land, lease or charge is owned jointly, no proprietor is entitled to any separate share in the land, and consequently –

(a) dispositions may be made only by all the joint proprietors; and

(b) on the death of a joint proprietor, his interest shall vest in the surviving proprietor or the surviving proprietors jointly…

103(1). Where any land, lease or charge is owned in common, each proprietor shall be entitled to an undivided share in the whole, and on the death of a proprietor his share shall be administered as part of his estate. …’

16. Then there is section 118 which states that –

‘If one of two or more joint proprietors of any land, lease or charge dies, the Registrar, on proof to his satisfaction of the death, shall delete the name of the deceased from the register.’

17. That was the law then, for the Registered Land Act has since been repealed by the Land Registration Act, which has similar provisions at sections 91, which state as follows at subsection (4): -

‘If land is occupied registered jointly, no tenant is entitled to any separate share in the land and consequently –

(a) a dispositions may be made only by all the joint tenants;

(b) on the death of a joint tenant, that tenant’s interest shall vest in the surviving tenant or tenants jointly; or

(c) Each joint tenant may transfer their interest inter vivos to all the other tenants but to no other person and any attempt to so transfer an interest to any other person shall be void.’

18. I have therefore to determine whether or not the property was held jointly or in common for that has consequences upon the demise of one or more of the co-owners. The distinction between two was brought in Isabel Chelangat vs. Samuel Tiro Rotich & 5 others(2012) eKLR, in the following terms –

‘At this juncture, I must distinguish between joint ownership of land and land held in common. These are two different types of tenancies by which two or more people are entitled to simultaneous enjoyment of land. To expound on this point I have borrowed heavily from two texts, Megary & Wade,The Law of Real Property[2]and Cheshire & Burn’s,Modern Law of Real Property,[3]. According to Burn, “...a joint tenancy arises whenever land is conveyed or devised to two or more persons without any words to show that they are to take distinct and separate shares…”[4]. Further, that “there is a thorough and intimate union between joint tenants. Together, they form one person.”[5]

A joint tenancy imparts to the joint owners, with respect to all other persons than themselves, the properties of one single owner. Although as between themselves joint tenants have separate rights, as against everyone else they are in the position of a single owner. Joint tenancy carries with it the right of survivorship and “four unities”. The right of survivorship(jus accrescendi)means that when one joint owner dies, his interest in the land passes on to the surviving joint tenant. A joint tenancy cannot pass under will or intestacy of a joint tenant so long as there is a surviving joint tenant as the right of survivorship takes precedence. The four unities that must be present in a joint tenancy are

(i) The unity of possession.

(ii) The unity of interest.

(iii) The unity of title.

(iv) The unity of time.

On unity of possession, each co-owner is entitled to possession of any part of the land as the other/s.[6] One co-owner cannot point to any part of the land as his own to the exclusion of the other/s. If he could, then this would be separate ownership and not co-ownership. No one co-owner has a better right to the property than the other/s, so that an action for trespass cannot lie against another co-owner. Unity of interest means that the interest of each joint tenant is the same in extent, nature and duration, for in theory of law, they hold just one estate.[7] Unity of title means that each joint tenant must claim his title to the land under the same act or document. This is satisfied by having the joint tenants acquiring their rights by the same conveyance and being so registered as joint tenants. Unity of time means that the interest of each tenant must vest at the same time.

Tenancy in common on the other hand is different from joint tenancy. In a tenancy in common, the two or more holders hold the property in equal undivided shares. Each tenant has a distinct share in the property which has not yet been divided among the co-tenants.[8] In other words they have separate interests only that it remains undivided and they hold the interest together. The largest factor that distinguishes a joint tenancy from a tenancy in common is the absence of the doctrine of survivorship in the latter. The share of one tenant is not affected by the death of one of the co-owners. The share of the deceased, devolves not to the other co-owner, but to the estate of the deceased co-owner. Although the four unities required for a joint-tenancy may be present, only one, the unity of possession is essential.

A joint tenancy can be converted into a tenancy in common by the doctrine of severance. But unless this is done the rights of joint holders so remain.’

19. The register in respect of East/Wanga/Lubinu/66 did not indicate whether the proprietorship was joint or in common. However, going by what is stated in Cheshire & Burn’s,Modern Law of Real Property cited above, that a joint tenancy arises whenever land is conveyed or devised to two or more persons without any words to show that they are to take distinct and separate shares, I would hold that the deceased and Silas Okumu Simeyo heldEast/Wanga/Lubinu/66 as joint proprietors. That is to say that a presumption would arise that the tenancy is intended to be joint. I held similarly inIn re Estate of Josephine Mumbua Mehlaff – Deceased(2015) eKLR.

20. Having concluded that East/Wanga/Lubinu/66 was held by the deceased and Silas Okumu Simeyo as joint proprietors, it follows then that following her demise on 6th February 1994, the principle of jus accrescendi applied, and her interest in the said property merged or united with that of the surviving joint tenant or joint proprietor, Silas Okumu Simeyo. The effect of this then would be that the said property ceased to form part of the estate of the deceased and was not available for distribution in her estate. Indeed, by virtue of section 118 of the Registered Land Act, Silas Okumu Simeyo, did not even need to initiate a succession cause to have the property transferred to his name, all he should have done was provide proof of the death of the joint tenant to the Land Registrar for him to act as envisaged by that provision.

21. For whatever it is worth, I shall confirm the grant made herein on 19th May 2011, and direct that East/Wanga/Lubinu/66 shall devolve wholly upon Silas Okumu Simeyo. A certificate of confirmation of grant shall issue accordingly. Should Silas Okumu Simeyo feel sufficiently gratuitous to Felista and her children, he is of course at liberty to gift a portion of the land to them and to thereafter follow the processes set out in the Land Registration Act to effectuate the same. Should any party be aggrieved by this decision, there is a right of appeal to the Court of Appeal within twenty-eight (28) days. Each party shall bear their own costs.

DATED, SIGNED and DELIVERED at KAKAMEGA this 3RD DAY OF DECEMBER, 2018

W. MUSYOKA

JUDGE