[2023] KEHC 26091 (KLR)

In re Estate of Agnes Masbay Ongoma Otieno (Deceased) (Succession Cause 175 of 2014) [2023] KEHC 26091 (KLR) (1 December 2023) (Ruling)

Neutral citation: [2023] KEHC 26091 (KLR)

Republic of Kenya

In the High Court at Busia

Succession Cause 175 of 2014

WM Musyoka, J

December 1, 2023

IN THE MATTER OF THE ESTATE OF AGNES MASBAY ONGOMA OTIENO (DECEASED)

Ruling

1. The deceased herein died on 5th July 2013, according to a certificate of death on record, dated 28th August 2013. I see a letter on record, curiously dated 22nd November 2023, but filed herein on 21st May 2014, by the Chief of Bujumba Location. It identifies the children of the deceased, as 6 daughters and 5 sons; being Praxedes Adhiambo Otieno, Giannaenerica Kwena Otieno, Shillah Teresa Aketch, Caroline Makokha, Georgina Beaice Njago, Rosemary Awino Ochieng Kaduru, Kenny Otieno Omondi, George Muyodi, Sebastian Paick Ongoma, Fredrick Mukasa Okhongo and Charles Omondi Lwanga. Representation to the estate was sought by Praxedes Adhiambo Otieno, in her capacity as daughter of the deceased. She listed the survivors of the deceased, as the 6 daughters and the 5 sons, set out in the Chief’s letter. South Teso/Angoromo/1126, 1231 and 1852; Marachi/Bumala/1153, 1154, 1155, 1324, 1478 and 1640; Sirikhaya Market Plot No. 7 and Bumala Market Plot No. 42 were listed as the property that the deceased died possessed of. Letters of adminisation intestate were made to Praxedes Adhiambo Otieno, on 18th September 2014, and a grant was duly issued, on 3rd October 2014. The said grant was subsequently revoked on 2nd February 2016, on the basis of applications filed after the grant was made, and Praxedes Adhiambo Otieno and Kenny Otieno Omondi were appointed the new adminisators.

2. I am called upon to determine a summons for confirmation of grant, dated 12th July 2021, filed herein on 14th July 2022, by Praxedes Adhiambo Otieno. I shall refer to her as the applicant. She identifies the survivors of the deceased as the individuals listed in the Chief’s letter of 22nd November 2023, save that Shillah Teresa Akechi and Rosemary Kaduru are said to have had since died, and the said Rosemary Kaduru, Fredrick Mukasa Mukhongo and Charles Omondi Lwanga are said to be stepchildren of the deceased. The assets said to have had been ascertained as belonging to the deceased are Bukhayo/Bugengi/1126, 1128 and 1643; Bukhayo/Matayos/1459 and 1524; Bukhayo/Mundika/1642; Marachi/Bujumba/214, 215, 229, 237, 244, 612, 624, 632, 641, 1247, 1334, 1433 and 1627; Marachi/Bumala/58, 59, 60, 70, 72, 73, 1153, 1154, 1155, 1226, 1231, 1324, 1478 and 1481; Marachi/Elukhari/1640; South Teso/Angoromo/1126, 1231 and 1852; Plot No. 481 Bungoma; Plot No. 42 Bumala Market; and Plot No. 7 Sirikhaya Ogina Market. She proposes disibution as follows: Bukhayo/Matayos/1459 and 1524 to Rosemary Ochieng Kaduru and Praxedes Adhiambo Otieno, equally; South Teso/Angoromo/1126 to Praxedes Adhiambo Otieno; Bukhayo/Mundika/1642 to Rosemary Kaduru, Sebastian Paick Ongoma and George Muyodi Otieno, equally; Marachi/Bumala/1153, 1231 and 1478 to Praxedes Adhiambo Otieno, Sebastian Paick Ongoma and George Muyodi Otieno, equally; Marachi/Bumala/1324 and 1481 to Caroline Makokha, Shillah Teresa Akechi, Praxedes Adhiambo Otieno and Georgina Beaice Njago, equally; Plot No. 481 Bungoma to Praxedes Adhiambo Otieno; Marachi/Bujumba/214, 632 and 1583 to Kenny Otieno Omondi; Marachi/Bujumba/641 to Kenny Otieno Omondi, Sebastian Paick Ongoma and George Muyodi Otieno, equally; Marachi/Bujumba/612, 1334 and 1627 to Giannaenerica Kwena Otieno; Marachi/Bujumba/624 and Plot No. 42 Bumala Market to Kenny Otieno Omondi; Marachi/Elukhari/1640 to Giannaenerica Kwena Otieno, Sebastian Paick Ongoma, Caroline Makokha, Georgina Beaice Njago and Praxedes Adhiambo Otieno, equally; Marachi/Bujumba/229 and 1226 to Caroline Makokha and Praxedes Adhiambo, equally; South Teso/Angoromo/1231 and 1852 to Georgina Beaice Njago and Caroline Makokha, equally; Marachi/Bujumba/237, 1247 and 1433 to Georgina Beaice Njago and Caroline Makokha, equally; Marachi/Bumala/58, 59 and 60 to George Muyodi Otieno and Sebastian Paick Ongoma, to be held in ust for all the children, being the ancesal home; Marachi/Bujumba/215 to Kenny Otieno Omondi, Giannaenerica Kwena Otieno, Shillah Akechi and Georgina Beaice Njago, equally; Plot No. 7 Sirikhaya Ogina Market to George Muyodi Otieno and Georgina Beaice Njago, equally; Bukhayo/Bugengi/1126, 1128 and 1643 to Shillah Teresa Akechi, Caroline Makokha, Praxedes A. Otieno, Georgina Beaice Njago and Rosemary Kaduru, equally; Marachi/Bumala/70, 72, 73, 1154 and 1155 to Fredrick Mukasa Okhongo and Charles Omondi Lwanga, equally; and Marachi/Bujumba/244 to Frederick Mukasa Okhongo and Charles Omondi Lwanga, equally.

3. Kenny Otieno Omondi has filed an affidavit of protest, sworn on 7th March 2023, and I shall refer to him hereafter as the 1st protestor. The protest is filed on his behalf, and purportedly that of Giannaenerica Kwena Otieno, Carolina Makokha, Georgina Beaice Njago, George Muyodi Otieno and Sebastian Paick Ongoma. He accuses the applicant of not disclosing that she had failed to account for some Kshs. 6,000,000. 00, which she had received as compensation for a road. He attaches an annexure, and says that that was what a majority of the family members had agreed on as disibution. The annexure is undated, but it is signed by Kenny Otieno Omondi, Giannaenerica Kwena Otieno, Caroline Makokha, Georgina Beaice Njago, George Muyodi Otieno, Sebastian Paick Ongoma, Fredrick Mukasa Okhongo and Charles Omondi Lwanga, before Abdimudalis Ali, a Public Notary, in Dekalb County, Georgia. The names of Fredrick Mukasa Okhongo and Charles Omondi Lwanga appear on the document, but they did not sign it. The names of Praxedes Adhiambo Otieno, Shillah Teresa Akechi and Rosemary Awino Ochieng Kaduru are not in the document. It is a proposed list on the disibution of the estate. The survivors listed in there are the same as those listed by the applicant. The assets listed in the protest are largely the same as those listed in the application, but there are 2 exceptions. The first is that some assets in the list by the applicant are missing, that is to say Bukhayo/Bugengi/1643; Marachi/Bumala/1153, 1226, 1231 and 1481; and Plot No. 42 Bumala. The second is that the protestor inoduces into the maix assets that are not in the list by the applicant, namely Marachi/Bujumba/1379, 1434, 1583 and 1612; Marachi/Bumala/1158; Plot No. 10 Sirikhaya Ogina Market; and Plot No. 264 Bumala Market. It is proposed that some assets be put in a family ust, being the 3 South Teso/Angoromo lands; the 4 market plots, plus Plot No. 42 (634) Marachi/Bujumba; Bukhayo/Bugengi/1128; Marachi/Bujumba/237, 641 and 1334; Marachi/Bumala/1153, 1154, 1155, 1324 and 1478; and Marachi/Elukhari/1640. Disibution is proposed as follows, allegedly based on possession and ongoing activity: Bukhayo/Matayos/1524 to Praxedes Adhiambo Otieno, Shillah Teresa Akechi and Rosemary Awino Ochieng Kaduru, equally; Bukhayo/Matayos/1559 to Praxedes Adhiambo Otieno and Rosemary Awino Ochieng Kaduru, equally; Marachi/Bujumba/214 to Kenny Otieno Omondi; Marachi/Bujumba/215 to Kenny Otieno Omondi, Caroline Makokha 3 acres and Shillah Teresa Akechi 3 acres; Marachi/Bujumba/1612 and 1627 to Giannaenerica Kwena Otieno; Marachi/Bujumba/1433 and 1434 to Caroline Makokha and Georgina Beaice Njago, equally; Bukhayo/Bugengi/1126 to Georgina Beaice Njago; Marachi/Bumala/58 and 60 to Sebastian Paick Ongoma; Marachi/Bumala/59 to Sebastian Paick Ongoma and George Muyodi Otieno, equally; Bukhayo/Mundika/1642 to Sebastian Paick Ongoma; and Marachi/Bumala/70, 72 and 73 to Fredrick Mukasa Okhongo and Charles Omondi Lwanga, equally. Marachi/Bujumba/632 and 1583 are not proposed for disibution, but there are notes indicating that the same had been taken possession of and developed by Kenny Otieno Omondi.

4. The 1st protestor filed a further statement in protest, being an affidavit that he swore on 20th April 2023. He attaches copies of certificates of official search for Marachi/Bumala/1153, 1324 and 1478, and says that the said assets were ansferred in 2014, to the name of the applicant, who had been collecting rents from the houses on them, in respect of which she has never accounted. He complains that the 3 assets were listed as assets in the estate by the applicant despite her having ansferred them to her name. She is said to be unustworthy, and reference is made to a ruling by F. Tuiyott J, when the initial grant was revoked, for the applicant had filed a document which bore false signatures of some of the survivors. The affidavit, of 20th April 2023, alleges to have annexed to it bank statements, but none are attached to the copy filed in court.

5. On 8th June 2023, the applicant filed a further affidavit, sworn on 10th May 2023, ostensibly, to respond to the further affidavit of the 1st protestor of 20th April 2023. She avers that she and the 1st protestor had met in 2018, and had sworn and filed a joint affidavit, on agreed assets and beneficiaries. The agreed list of beneficiaries bore names of the 11 individuals listed in the letter from the Chief, the petition, the summons for confirmation of grant, and the protest by the 1st protestor. The list of agreed assets of the estate comprised of 39, being Bukhayo/Bugengi/1126, 1128 and 1643; Bukhayo/Matayos/1459 and 1524; Bukhayo/Mundika/1642; Marachi/Bujumba/214, 215, 237, 244, 624, 632, 641, 1226, 1247, 1334, 1433, 1583 and 1627; Marachi/Bumala/58, 59, 60, 70, 72, 73, 1153, 1154, 1155, 1231, 1324, 1478 and 1481; Marachi/Elukhari/1640; South Teso/Angoromo/1126, 1231 and 1852; Plot No. 481 Bungoma; and Plots Nos. 7 and 10 Sirikhaya Ogina Market. Both documents were executed on 1st December 2020. She discloses assets that were registered in her name, and which she avers were so registered in her name as adminisator, and were available for disibution. She also mentions that there were assets that she had not disclosed, for she did not know about them, and the protestor had declined to disclose them. She attached certificates of official searches for Marachi/Bumala/58, 59, 60, 70, 72, 73, 1153, 1154, 1155, 1231, 1324, 1478 and 1481; Marachi/Elukhari/1640; South Teso/Angoromo/1126 and 1852; Marachi/Bujumba/214, 215, 237, 244, 624, 632, 641, 1247, 1334, 1433, 1583, 1612 and 1627; Bukhayo/Matayos/1459 and 1524; Bukhayo/Bugengi/1643; and Bukhayo/Mundika/1642. She further discloses that George Muyodi Otieno was a person with a mental disability, and she has attached documents to support that. She accuses the 1st protestor of collecting rent from some of the developed assets, for which he was not accounting. She asserts that the protestor had left out Plot No. 42 Bumala Market. She has attached a number of valuations to some of the assets, being Marachi/Bujumba/42, 624; Marachi/Bumala/1153, 1154, 1155, 1324 and 1478, being the assets from which the 1st protestor was allegedly collecting rent.

6. Another affidavit of protest was sworn by Giannaenerica Kwena Otieno, on 31st August 2023. I shall refer to her as the 2nd protestor. She claims to swear the protest affidavit on her own behalf, and that of Caroline Makokha, Georgina Beaice Njago and Sebastian Paick Ongoma. She accuses the applicant of breach of her fiduciary position as adminisaix, for collecting income from estate assets and not sharing it with the other beneficiaries, for not accounting, failing to involve the other survivors in her adminisation of the estate, falsifying documents and ansferring assets of the estate to her name. The applicant is also accused of receiving compensation from the Kenya National Highways Authority, KeNHA, from portions of estate land that were compulsorily acquired, but she never accounted for the money, nor shared it. She complains that the compensation money was paid into the personal account of the applicant. She mentions Kenya Post Pension Account money which ought to be shared out. She complains that, although liabilities are mentioned in the filings, the same have not been disclosed. The applicant is accused of failing to execute the adminisation within the timelines given. She avers that certain issues ought to have been disclosed to the court. For instance, Shillah Teresa Aketch died, and was survived by children. Rosemary Awino Ochieng Kaduru was not a daughter of the deceased, but a biological daughter of their late father. The said Rosemary Awino Ochieng Kaduru was not dependent on the deceased, although they had considered making provision for her, they did not know where her children were. The applicant is accused of concealing these deaths from the court. She avers that the concealment of those facts is meant to facilitate devolution of their share to the applicant. Fredrick Mukasa Okhongo was a stepbrother, raised by the deceased, although her biological mother was alive, but the deceased had allocated him land, 5 acres, where he had put up a home. Charles Omondi Lwanga was in a similar position with Fredrick Mukasa Okhongo. He is accused of carting away movable assets from the home of the deceased, following her demise, being household goods and livestock. The applicant is accused of defying efforts to get a meeting organized for a discussion on these issues. She expresses fear that the applicant was collecting rents and not paying taxes, exposing the estate to liability from the tax authorities. She prays that the assets that had been ansferred to the name of the applicant be re-ansferred to the estate. The applicant is accused of allocating to herself the choicest of the assets, and the court is urged to consider the values of the assets at disibution. She complains that, although the applicant collects rent, she had failed to use the same for the needs of George Muyodi Otieno. She discloses that the 1st protestor facilitates virtual meetings with the other beneficiaries, and they would discuss disibution. She urges that her protest be considered and the estate disibuted as per her proposals.

7. She proposes that South Teso/Angoromo/1126 be devolved to Praxedes Adhiambo Otieno, Giannaenerica Kwena Otieno, Caroline Makokha, Georgina Beaice Njago and Sebastian Paick Ongoma, equally; Marachi/Bumala/1153 to Giannaenerica Kwena Otieno; Marachi/Bumala/1478 to George Muyodi Otieno and Sebastian Paick Ongoma, equally; Marachi/Bumala/1231 to Fredrick Mukasa Okhongo, Charles Omondi Lwanga and George Muyodi Otieno, equally; Marachi/Bumala/1324 to Praxedes Adhiambo Otieno; Plot No. 418 Bungoma to Praxedes Adhiambo Otieno, Charles Omondi Lwanga, Frederick Mukasa Okhongo, Shillah Teresa Akechi and Georgina Beaice Njago, equally; Marachi/ Bujumba/1583 to Kenny Otieno Omondi; South Teso/Angoromo/1231 to Charles Omondi Lwanga, Fredrick Mukasa Okhongo and George Muyodi Otieno, equally; South Teso/Angoromo/1852 to Praxedes Adhiambo Otieno, Giannaenerica Kwena Otieno, Caroline Makokha, Georgina Beaice Njago and Sebastian Paick Ongoma, equally; Plot No 7 Sirikhaya Ogina Market to George Muyodi Otieno and Sebastian Paick Ongoma, equally; Plot No. 10 Sirikhaya Ogina Market to Fredrick Mukasa Okhongo, Charles Omondi Lwanga and George Muyodi Otieno, equally; Marachi/Bumala/1154 to Georgina Beaice Njago; Marachi/Bumala/1155 to Caroline Makokha; Bukhayo/Matayos/1524 to Praxedes Adhiambo Otieno; Bukhayo/Matayos/1459 to Praxedes Adhiambo Otieno and George Muyodi Otieno, equally; Bukhayo/Mundika/1642 to Sebastian Paick Ongoma 5 acres, Caroline Makokha 3 acres and George Muyodi Otieno 2 acres; Marachi/Bujumba/214 to Giannaenerica Kwena Otieno 4 acres, Rosemary Ochieng Kaduru 3 acres and Shillah Teresa Akechi 3 acres; Marachi/Bumala/1481 to Giannaenerica Kwena Otieno, Praxedes Adhiambo Otieno, Shillah Teresa Akechi, Kenny Otieno Omondi, Georgina Beaice Njago and Caroline Makokha, equally; Marachi/Elukhari/1640 to Praxedes Adhiambo Otieno, Kenny Otieno Omondi, Giannaenerica Kwena Otieno, Caroline Makokha, Georgina Beaice Njago, Sebastian Paick Ongoma and George Muyodi Otieno, equally; Marachi/Bujumba/632 to Kenny Otieno Omondi; Marachi/Bujumba/215 to Kenny Otieno Omondi; Marachi/Bujumba/641 to Kenny Otieno Omondi and Sebastian Paick Ongoma, equally; Plot No. 42 Bumala Market and Marachi/Bujumba/624 to Kenny Otieno Omondi and Sebastian Paick Ongoma, equally; Marachi/Bujumba/1334 to Kenny Otieno Omondi; Marachi/Bujumba/1612 and 1627 to Giannaenerica Kwena Otieno; Marachi/Bujumba/229 and 1226 to Praxedes Adhiambo Otieno, Giannaenerica Kwena Otieno, Caroline Makokha and Georgina Beaice Njago, equally; Bukhayo/Bugengi/1126, 1128 and 1643 to Praxedes Adhiambo Otieno, Kenny Omondi Otieno, Giannaenerica Kwena Otieno, Caroline Makokha, Georgina Beaice Njago and Sebastian Paick Ongoma, equally; Marachi/Bujumba/1433 and 1434- to Georgina Beaice Njago and Caroline Makokha, equally; Marachi/Bujumba/237 to Praxedes Adhiambo Otieno, Giannaenerica Kwena Otieno, Caroline Makokha and Georgina Beaice Njago, equally; Marachi/Bujumba/1247 to Georgina Beaice Njago and Caroline Makokha, equally; Marachi/Bumala/58 and 59 to Sebastian Paick Ongoma; Marachi/Bumala/60 to Caroline Makokha and Georgina Beaice Njago, equally; Marachi/Bujumba/244 to Georgina Beaice Njago and Caroline Makokha, equally; and Marachi/Bumala/70, 72 and 73 to Fredrick Mukasa Okhongo 5 acres, Charles Omondi Lwanga 5 acres and Sebastian Paick Ongoma 1½ acres.

8. Fredrick Mukasa Okhongo swore an affidavit on 13th July 2023, to disclose that is a stepson of the deceased, to call for equal disibution, and to ask that the 5 acres, where he has settled on Marachi/Bumala/70, 72 and 73, be devolved to him.

9. The 1st protestor swore another affidavit on 11th September 2023, to report that a section of the family, 5 members, had met on 13th August 2023, and agreed on disibution of the estate. He has attached the minutes of that meeting, and a schedule of disibution. That disibution tallies with that of the 2nd protestor, save for 2 adjustments. One is in respect of South Teso/Angoromo/1126, where the 1st protestor inoduces Shillah Teresa Akechi and Rosemary Ochieng Kaduru and allocates to each of them 1 plot. The other is in respect of South Teso/Angoromo/1852, into which the 1st protestor inoduces Shillah Teresa Akechi and Rosemary Ochieng Kaduru and allocates 1 plot to each one of them.

10. The confirmation application was heard orally. Some of the beneficiaries stated their positions through unsworn statements in court, but the applicant and the protestors gave sworn statements. Fredrick Mukasa Okhongo informed me that he was in agreement with the list of beneficiaries and assets, and asked that the assets be disibuted equally. I was informed that George Muyodi Otieno was intellectually challenged, and communication for him was a challenge, so he could not address the court. Sebastian Ongoma agreed with the list of assets and beneficiaries. He said he did not agree with the disibution proposed by the applicant and the protestors, as some assets had been ansferred to the name of the applicant, and compensation money from KeNHA was not disclosed. Giannaenerica Kwena Otieno stated that she agreed with the lists of assets and beneficiaries, but said that there were outstanding issues, for some assets had been ansferred to the name of the applicant.

11. Viva voce evidence was taken on 26th September 2023. The applicant was the first to take the witness stand. She stated that there were 11 beneficiaries. She said that the assets were agreed, and were set out in a document that was dated 1st December 2020. She said that her proposals on disibution were in the affidavits that she swore on 12th July 2022 and 9th May 2023. She said that she agreed with the 1st protestor on the disibution of most of the assets, save for Bukhayo/Matayos/1459; South Teso/Angoromo/1126; Marachi/Bumala/1481; Marachi/Elukhari/1640; Plot No. 418 Bungoma; and Marachi/Bujumba/215, 237, 641 and 1334. She said that whereas she was in agreement on Marachi/Bumala/70, 72 and 73, she differed with respect to the share allocated to Sebastian. She stated that the disibution by the 2nd protestor was similar to that of the 1st protestor. She agreed with the proposals in the affidavit of Fredrick Mukasa of 3rd July 2023. She stated that she had attached copies of valuations for the commercial plots. She said that the valuations were the basic factor in her proposals. She said that she had also attached certificates of official searches, which indicated the acreages. She said that the actual title documents had been given to the 1st protestor, after the deceased fell ill, and he never shared them with her. She stated that the deceased had sold Marachi/Bumala/1481 to John Amena Amendi, but the same was not ansferred to the name of the purchaser, and was still in the name of the deceased. She conceded that some assets were ansferred to her name, not as owner, but as adminisaix. She mentioned form RL 19. She said that she had included them in the schedule of the assets of the estate, she had proposed their disibution and they were available for disibution. She said that on 2nd February 2016, she and the 1st protestor had opened a joint account at National Bank of Kenya, Busia branch, for receipt of rent. She asserted that she had not received any rent, both before the account was opened, and thereafter. She said that rent was paid into that account by the tenants, while some tenants continued to pay rents directly to the 1st protestor. On the KenNHA monies, she stated that she signed on behalf of the estate. She said that she received the money as adminisaix. She said that the money could not be released before the grant was confirmed, and added that she was willing to furnish the details. She said that National Bank of Kenya was holding a title relating to Marachi/Bujumba/237, in respect of a loan that the deceased had taken, and the title document would be released only after the grant was confirmed. She said that the title document for Marachi/Bujumba/1334 was deposited in court as surety, and it awaited release on confirmation of grant. The title deed for South Teso/Angoromo/1852, was being held by the Minisy of ade, Busia, to be released upon confirmation of the grant. She said that the documents for Plot No. 42 Bumala Market; Plot No. 10 Sirikhaya Ogina Market; South Teso/Angoromo/1126 and 1231; Marachi/Elukhari/1640; and Marachi/Bumala/1153, 1154, 1155, 1324 and 1478 were with the County Government of Busia, and would be released upon confirmation of the grant. She stated that Shillah Teresa Akechi, Rosemary Awino Kaduru, Fredrick Mukasa Okhongo and Charles Omondi Lwanga were all in her list, and she denied leaving out anyone. She asserted that she was an active adminisaix, as she was the one who compiled the lists of assets and beneficiaries. She stated that she kept the beneficiaries updated of goings on the estate. She said that the 1st protestor held a meeting with the beneficiaries virtually, but she had not been invited to that meeting. She proposed that a guardian be appointed for the purpose of the property due to George Muyodi Otieno. She said that the grant should be confirmed, so that each person gets their own property, for the sake of harmony in the family. She further stated that her proposed disibution did not refer to cash. She said that the Kshs. 5,200,000. 00 was not disclosed. She said that she disclosed the rent account to the court, and the lists of tenants were indicated there, and all the beneficiaries were aware. She said that the KeNHA compensation funds were paid into her personal account, asserting that KeNHA did not deal with the deceased, but with her as adminisaix. She said that the money was intact, and that it was a part-payment from KeNHA.

12. My file notes do not indicate who PW2 was, but it was the 1st protestor, Kenny Otieno Omondi. He stated that he had held 2 virtual meetings with the beneficiaries. He stated that all attended the meeting, except the applicant, as she was to be the subject matter of the discussions. He said that they agreed on a mode of disibution, which he urged the court to adopt. He stated that he did not collect rent from the tenants in any of the assets of the estate, and that what he was collecting had nothing to do with the estate. He said that the tenants pay the rent into the National Bank Account. He conceded that in 2014 and 2015 he used to collect rent, and said that he accounted for the money in 2016, after he was ordered to by the court, and disibuted the money amongst the beneficiaries. He said that in 2016, the shops were handed over to the applicant. He said that he met the tenants, and verbally asked them to pay rent to the applicant. He said that he started to collect the rent during the lifetime of the deceased. He said he did not attach a list of the tenants, and the amounts that each one of them was paying. He said that he and the applicant agreed on lists of beneficiaries and assets, and no one had been left out. He said that the rents were not included in the list, and the subject did not come up in his meetings with the beneficiaries. He said that the issue of the KeNHA compensation did not come up, as it had been handled by the applicant. He said 4 beneficiaries did not attend the meetings, and did not consent to what was agreed upon by the rest, that is to say the applicant, George Muyodi Otieno, Fredrick Mukasa and Charles Lwanga. He said that he was not aware of any liabilities of the estate; although he conceded that land rates could be some of them. He stated that they conducted a search at the lands regisy, and established that the applicant had ansferred some of the assets to her name, and that they had compiled a list of those assets. He said that the sons had put up homes in some of the assets.

13. Fredrick Mukasa testified next. He said that he would like the estate shared equally. He identified the assets that ought to be given to him as Flora Hotel and Marachi/Bumala/ 70, 72 and 73. He said that the deceased raised him, and he was not aware that he was not her biological child, until the day just before he testified. He said that his birth certificate showed that his mother was Margaret Wambui. Charles Lwanga Omondi also testified. He identified the deceased as his mother, although not in the biological sense. He stood for equal disibution. He said that they had put up houses on the parcels allocated to them, even though title deeds were not given to them. He said that the deceased had given him Bukhayo/Mundika/1642 during her lifetime, but after she died they decided to change. He said that he did not put up a home on Bukhayo/Mundika/1642, for he exchanged it with Sebastian Paick Ongoma. He put up his home on Marachi/Bumala/70, 71 and 73 instead. He wished that Sebastian Paick Ongoma should not be given a share of Marachi/Bumala/70, 71 and 73.

14. Giannaenerica Kwena Otieno testified last. She said that she did not support the proposals by the applicant. She stated that she and others met and agreed on an alternative mode of disibution. She said that their principal complaint against the applicant was lack of accountability. She said there was no official accounting, except through WhatsApp. She said that there was no disclosure of the amount of rent collected to date. She also stated that she was not complaining of non-disclosure of some beneficiaries, but of lack of disclosure of their statuses. Regarding Shillah Teresa Akechi, she testified that she died, her husband re-located, and the whereabouts of her children were unknown, for they were not in contact with them. Rosemary Awino Ochieng Kaduru was a stepsister who never lived with them. She had children, whose whereabouts were unknown, for they were not in contact with them. She said that she had no objection to the children of Shillah Teresa Akechi and Rosemary Awino Ochieng Kaduru getting shares. She said that she was party to a meeting of beneficiaries, where disibution was agreed upon, and reasons given. She said that she was in agreement with the lists of assets and beneficiaries filed by the adminisators. She said that the disagreement was on disibution. She said she had no individual or independent proposals, and that what she had was shared with Caroline Makokha, Sebastian Paick Ongoma, Georgina Beaice Njago and the 1st protestor, adding that her proposals were similar to those of the 1st protestor. She said that she was aware of some of the liabilities, but had not disclosed them. On accountability, she stated that all the adminisators were accoun, but the issues raised figured one of them more than the other. She said that the 1st protestor never communicated officially, to effect that, after 2016, he had handed over collection of rents to another person. She said that the applicant had to be coerced to disclose about the award of compensation by KeNHA. She said she did not know the money was not disibuted. She said that she was informed that it was Fredrick Mukasa Okhongo who took the livestock.

15. George Muyodi Otieno communicated through the applicant, to the effect that he was asking the court that a guardian be appointed to take care of him.

16. At the end of the oral hearings, the parties filed written submissions, which I have read through, and noted the arguments made.

17. The applicant submits around sections 27 and 29 of the Law of Succession Act, Cap 160, Laws of Kenya, on the alleged dependency of Rosemary Kaduru, Fredrick Mukasa Okhongo and Charles Omondi Lwanga, being stepchildren of the deceased, and about provision being made to them. She also submits about Forms RL7 under the Registered Land Act, Cap 300, Laws of Kenya, (repealed), and LRA 39 and 42 of the Land Regisation Act, No. 3 of 2012, on the assets that were ansferred to her name. It is also submitted that the KeNHA compensation money did not form part of the estate, hence it was never held in an estate account, although the money is said to be available for disibution. It is submitted that no asset was disibuted inter vivos, and, therefore, nothing was to be brought to the hotchpotch. It is submitted that the estate ought to be disibuted equally, in terms of section 38 of the Law of Succession Act.

18. The 1st protestor associated himself with the submissions of the 2nd protestor. It is submitted that disibution of the estate was debated by all the beneficiaries, and fully agreed upon, except for the applicant; the 1st protestor had fully accounted for the rents that he collected from estate assets, that all the rental income held in the estate bank account ought to be disclosed by the applicant, and reverted to the estate; that the parcels of land irregularly ansferred to the name of the applicant should be reverted to the estate; Fredrick Mukasa Okhongo and Charles Omondi Lwanga were not biological children of the deceased, and should be contented with what has been allocated to them; and the applicant was a married woman who stake lies elsewhere, and should not disadvantage the sons of the deceased.

19. The 2nd protestor submits around lack of accountability by both adminisators, and cites In the Matter of the Estate of Anthony Gichigi Wairire (Deceased) Eldoret HCP&A No. 32 of 1983 (Nambuye, J). The issues on accountability are about the KeNHA compensation money, the rents collected, the assets ansferred to the name of the applicant, the debts and liabilities not disclosed, the children of the deceased who had died and had been survived by children, the beneficiaries who were dependants of the deceased, and lack of cooperation from the applicant. It is submitted that the applicant intermeddled with the estate, by ansferring assets to her name, and In the Matter of the Estate of Dr. John Kalii (Deceased) Machakos HCSC No. 81 of 1995 (Mwera, J) is cited. Sections 26, 27, 28 and 29 of the Law of Succession Act are cited, with respect to dependency. Section 42 of the Law of Succession Act is cited with respect to previous benefits being brought into the hotchpotch. It is argued that the applicant proposes to get all the prime assets, that some beneficiaries have invested heavily into some of the assets, Shillah Teresa Akechi had no heirs, Rosemary Awino Ochieng Kaduru was not a dependant of the deceased, Sebastian Paick Ongoma should get the family home as per custom, Fredrick Mukasa Okhongo and Charles Omondi Lwanga were dependants, and the intellectual challenges of George Muyodi Otieno. In re Arusei [2003] KLR 76 (Nambuye, J), Teresia Wambui Maruhi vs. Onesmus Maina Maruhi and another Nairobi HCCA No. 3 of 2002 (AJ Kamau, J) and In the Matter of the Estate of Ashford Njuguna Nduni (Deceased) Nairobi HCSC No. 1589 of 1994 (Waweru, J) are cited to support arguments around these issues.

20. What I am called upon to determine is a summons for confirmation of grant. Confirmation of grant is about disibution of the estate. It is the most critical or essential part of adminisation of estates. Indeed, succession causes are initiated for the sole purpose of having the property of dead persons disibuted. Once disibution is done, adminisation effectively ends, or is deemed to be completed. The journey of the adminisation of an estate begins with filing a petition in court, and ends with disibution. Disibution is so important, that where it is bungled, the parties remain in court forever, fighting over this or that. The adminisators must get it right. To get it right, they must do the right thing, in terms of ascertaining the assets to be disibuted, the persons to benefit from the disibution, and the terms of the disibution. In testate succession, the assets are either disclosed in the will, or the executors have to ace them, and get them into the estate. The beneficiaries are named in the will, but the executors still have to be faithful to constitutional dictates, on such matters as non-discrimination, of those left out or inadequately provided for. See Articles 2(4) and 27 of the Constitution and Wanjiru & 4 others vs. Kimani & 3 others (Civil Appeal 36 of 2014) [2021] KECA 362 (KLR) (W Karanja, HA Omondi & Laibuta, JJA), In re Estate of M’Itunga M’Imbutu (Deceased) [2018] eKLR (Gikonyo, J) and In re Estate of Stanley Mugambi M’Muketha (Deceased) [2019] eKLR (Gikonyo, J). Disibution is set out in the will. In intestate succession, it is the duty of the adminisators to ascertain the assets of the estate, to ace the assets, to gather and collect them, and to bring them into the estate. Ascertainment of assets includes the exercise of ascertaining debts and liabilities of the estate. The persons beneficially entitled in the intestate estate are set out in the law, the Law of Succession Act, at Part V, sections 35 to 41, where the Act applies. Disibution in intestacy is also dictated by the Law of Succession Act, at sections 35 to 41, where the Act applies. Where the applicable law is customary law, the relevant customary law would guide on who the persons beneficially entitled are, and how the estate is to be disibuted or shared out amongst them.

21. The proviso to section 71(2) of the Law of Succession Act, as read together with Rule 40(4) of the Probate and Adminisation Rules, requires that no grant in intestacy is to be confirmed “… until the court is satisfied as to the respective identities and shares of all the persons beneficially entitled; and when confirmed the grant shall specify all such persons and their respective shares.” The language in Rule 40(4) is to the effect that “… the applicant shall satisfy the court that the identification and shares of all persons beneficially entitled to the estate have been ascertained and determined.” So, at confirmation, it is about demonsating that the beneficiaries have been ascertained and identified, both family members and creditors; that their shares have also been ascertained and determined. “Shares” are about the assets. Before shares are ascertained, one has to ascertain the assets upon which those shares are to be determined. “Shares” are also about disibution. The share is what the beneficiary gets in the disibution. Confirmation is, therefore, about 3 critical things: the assets and liabilities, the beneficiaries and the disibution.

22. Disibution is about assets or property, for where there is nothing to disibute, the issue of confirming the grant would not arise. In fact, even initiating a succession cause would be needless, for there would be nothing to administer, with a view of eventually disibuting it. The question then would be whether the adminisators herein have ascertained, identified and determined the assets that make up the estate. There is a general consensus on the assets that make up the estate. The 2 adminisators even filed a list of agreed assets. The document is dated 1st December 2020, and was filed herein on 15th December 2020. It has a total of 39 landed assets. None of the other beneficiaries have disputed the list of landed assets. None has claimed a landed asset was omitted, or was listed yet it did not belong to the estate.

23. The only issue that has been raised, is that some of these landed assets have been ansferred by the applicant, upon her appointment as adminisaix, to her name. It has been argued that those particular assets then now no longer form part of the estate, and are not available for disibution, unless they are reverted to the estate. Those who raise this issue are ignorant of the law on the matter of estate property. The property of a dead person is vested, by the law, in the executor or adminisator. In the Law of Succession Act, the relevant law is section 79, which states “The executor or adminisator to whom representation has been granted shall be the personal representative of the deceased for all purposes of that grant, and subject to any limitations imposed by the grant, all the property of the deceased shall vest in him as personal representative.” The effect of that law is that the rights of ownership of estate property are vested in the adminisator. The adminisator steps into the shoes of the dead property owner. The adminisator is the representative of the dead property owner. That means that he represents the dead owner. He can do that which the dead owner could do with his property. To facilitate enjoyment of that right of ownership, albeit in a representative capacity, the law has provided for regisation of the adminisator, as owner of the property of the dead, pending disibution. The law on that is not in the Law of Succession Act, but in land legislation, which provides for what is known as ansmission.

24. ansmission happens at 2 stages. The first stage relates to when the property of the dead proprietor is ansferred to the name of the adminisator as adminisator. All what the adminisator would be required to do would be to present a grant of letters of adminisation, to the land regisar, who would, subject to his discretion, ansfer the property to the name of the adminisator. The second stage is upon the confirmation of the grant, where what the adminisator should do, for the purpose of ansmission of the property to the persons named in the certificate of confirmation of grant, would present that certificate to the land regisar for ansmission. The law does not require, at this second stage of ansmission, that the property be in the name of the deceased. It could be in the name of the deceased, or that of the adminisator. It is not mandatory that the ansmission at the first stage be done, and it is not unlawful for an adminisator to cause ansmission to be done to his name at that first stage. This is meant to facilitate adminisation, and to prevent intermeddling with the estate of the deceased, pending disibution at confirmation. An adminisator, who has estate assets ansmitted to his name, at the first stage, commits no fraud or wrong.

25. The relevant land legislation is the Land Regisation Act, and the Land Act, No. 6 of 2012. It is provided for in section 61 of the Land Regisation Act and sections 49 to 51 of the Land Act. They provide as follows:“ansmission on death of a sole proprietor or proprietor in common.61. (1)If a sole proprietor or a proprietor in common dies, the proprietor’s personal representative shall, on application to the Regisar in the prescribed form and on the production to the Regisar of the grant, be entitled to be registered by ansmission as proprietor in the place of the deceased with the addition after the representative’s name of the words “as executor of the will of .................................. [deceased]” or “as adminisator of the estate of .............................................. [deceased]”, as the case may be.(2)Upon confirmation of a grant, and on production of the grant the Regisar may, without requiring the personal representative to be registered, register by ansmission—(a)any ansfer by the personal representative; and(b)any surrender of a lease or discharge of a charge by the personal representative.(3)In this section, “grant” means the grant of probate of the will, the grant of letters of adminisation of the estate or the grant of summary adminisation of the estate in favour of or issued by the Public ustee, as the case may be, of the deceased proprietor.”“50. ansmission on death of a sole proprietor or proprietor in common(1)If a sole proprietor or a proprietor in common dies, the proprietor’s personal representative shall, on application to the Regisar in the prescribed form and on production to the Regisar of the grant, be entitled to be registered by ansmission as proprietor in the place of the deceased with the addition after the representative’s name of the words “as executor of the will of ( ) [deceased]” or “as adminisator of the estate of ( ) [deceased]”, as the case may be.(2)Upon production of a grant, the Regisar may, without requiring the personal representative to be registered, register by ansmission—(a)any ansfer by the personal representative; and(b)any surrender of a lease or discharge of a charge by the personal representative.(3)In this section, “grant” means the grant of probate of the will, the grant of letters of adminisation of the estate or the grant of summary adminisation of the estate in favour of or issued by the Public ustee, as the case may be, of the deceased proprietor.”

26. The provisions above were carried over from the Registered Land Act, which was repealed by the coming into effect of the Land Regisation Act and the Land Act in 2012. It was carried at section 119, which stated:“119. (1)If a sole proprietor or a proprietor in common dies, his personal representative, on application to the Regisar in the prescribed form and on production to him of the grant, shall be entitled to be registered by ansmission as proprietor in the place of the deceased with the addition after his name of the words “as executor of the will of .......................... deceased” or “as adminisator of the estate of ............................... deceased”, as the case may be.(2)Upon production of a grant, the Regisar may, without requiring the personal representative to be registered, register by ansmission -(a)any ansfer by the personal representative;(b)any surrender of a lease or discharge of a charge by the personal representative.(3)In this section, “grant” means the grant of probate of the will, the grant of letters of adminisation of the estate or the grant of summary adminisation of the estate in favour of or issued by the Public ustee, as the case may be, of the deceased proprietor.”

27. I have gone through the Registered Land Act and the Land Regisation Act, and the Rules made under them, and they have forms for ansmission of the property of the dead person to the name of the adminisator, and that is what Forms RL19 and LRA39 and 42 are about. I have come across certificates of official searches on the titles were the property was ansferred to the name of the applicant. I have noted that the registers do not reflect her as adminisaix, with respect to those titles, but they indicate that regisation was in form RL19, which was about ansmission to a personal representative. Anyhow, the land regisar is responsible for the information that goes into the register, and an adminisaix, who presents a grant for ansmission of a property to their name as adminisaix, cannot be blamed where the regisation only bears her name, but does not indicate that she holds the property as adminisaix. The applicant has said that the ansmission was in her capacity as adminisaix, and I have not come across evidence to the conary. None of the protestors has alleged that she has disposed of the assets in question, and no evidence of that sort has been d. She has indicated that the said assets are available for disibution, and she has proposed to disibute them. Surely, the applicant cannot propose to disibute assets that do not form part of the estate. I see no reason why the said assets should be reverted to the name of the deceased, for disibution, when ansmission can, at the appropriate time, be done, from her name to that of whoever shall be allocated those assets. According to the regisation details, the property is still within the estate, as it is registered in the name of the adminisaix, under Form RL19. A re-ansfer would involve expending estate funds, which, under normal circumstances, would be unnecessary. However, the applicant had these assets registered in her name when she was sole adminisaix. She is now not the only personal representative of the deceased, having been joined by the 1st protestor, and there is potential for more coming on board, it no longer makes sense for her to continue being registered as such. Those assets should be reverted to the estate, so that they all can be vested in all the adminisators, and not just one of them. However, to avoid burdening the estate with costs, and to obviate delays, the reversion should only affect assets that are not going to be disibuted in this ruling.

28. It was alleged that the ansmission of the said assets to the name of the applicant amounted to intermeddling with them, and In the Matter of the Estate of Dr. John Kalii (Deceased) Machakos HCSC No. 81 of 1995 (Mwera, J) was cited. Again, this a reflection of ignorance of the law on intermeddling. Section 79 of the Law of Succession Act vests the assets of the estate in the adminisator. That confers such adminisator with authority to handle the estate assets. That handling includes ansmission of the assets to the name of the adminisator, in accordance with the relevant land legislation. An adminisator is not capable of intermeddling with the estate assets, because they vest in him. See In Re Estate of Husseinbhai Karimbhai Anjarwalla [2000] eKLR (Waki, J), Shital Bimal Shah and two others vs. Akiba Bank Limited and four others [2005] KLR [2005] eKLR (Emukule, J) and In re Estate of Thiong’o Nginyayu Muthiora (Deceased) [2013] eKLR (Musyoka, J). The vesture clothes him with authority to handle the assets in any way that the owner would have done, and, so long as he handles the assets in accordance with the law, the issue, of him, as adminisator, intermeddling with the estate, would be a misnomer. What amounts to intermeddling is defined in section 45(1) of the Law of Succession Act, in the following terms: “Except so far as expressly authorized by this Act, or by any other written law, or by a grant of representation under this Act, no person shall, for any purpose, take possession or dispose of, or otherwise intermeddle with, any free property of a deceased person.” (Emphasis added)

29. So much for the landed assets. Are there other assets, apart from the lands? On 2nd February 2016, F. Tuiyott J directed the adminisators, that is to say the applicant and the 1st protestor herein, to open a joint estate account, into which were to be paid all rent and income from the property of the deceased. The 2 adminisators testified that such an account was opened, at the National Bank of Kenya, Busia branch, and rental income has been channeled to that account since. None of them had the presence of mind to disclose, in their filings, how much money was being held in that account, as at the date the confirmation application and the first protest to it were filed, and none of them had the presence of mind to propose disibution of the said amounts. The impression created was that the adminisators did not consider the rental income, collected and held in that account, to be an asset of the estate. Income generated from estate assets form part of the estate, and it is itself an asset available for disibution at confirmation. At the time the confirmation application and the first protest were being filed, it ought to have had been ascertained how much had been collected, how much was being held at the estate account, how much was available for disibution and proposals on how it should be disibuted should have been placed before the court.

30. The same applies to the moneys paid as compensation, for the portions of the estate property eaten into by KeNHA. Such compensation is income from estate assets. It should be disclosed and accounted for, and proposed for disibution. I find it curious that the applicant, in her submissions, is saying that this compensation money does not form part of the assets of the estate, and for that reason it was not held in the estate account, but in a personal account. Either the applicant has no understanding of what estate property would entail, or she is deliberately misleading the court. The KeNHA money was compensation for portions of lands, belonging to the estate, that had been eaten into during the consuction of the Ejinja-Bumala Road. The gazette notice on these parcels of land is attached to the affidavit of the 2nd protestor. All these parcels of land are in the name of the deceased. Compensation, with respect of them, accrues to the estate, and the said moneys are estate property. That money should not have been channelled to a private or personal account of anyone, including an adminisaix. If there was no estate account, which could hold that money, then both adminisators should have opened a joint account, specifically for the purpose of those funds. In any case, there was an estate account already, those funds should have been channelled to that account. The applicant implies that the joint estate account, that F. Tuiyott J ordered the adminisators to open in 2016, was exclusively for receiving rental income. Again, this is a total distortion of that order. The relevant portion of that order reads: “Effective from the date of this Ruling all rent and income from the property of the Deceased Estate shall be paid into an account jointly operated by the two Adminisators.” Money paid by the government, as compensation for property that it has compulsorily taken away from its owner, is income from that property. There can be no other way of looking at it. The KeNHA money should have been deposited into that same joint account that F. Tuiyott J had directed be opened. The applicant was obliged to disclose that amount of money in her application, and she should have proposed its disibution, for the same is estate property. Estate assets are disibuted at confirmation of grant, and I wonder the stage that the applicant was waiting for to disibute that money, if not at confirmation. Failing to disclose such assets, and to propose their disibution, would expose the adminisators to suspicion, that they are up to no good with respect to them. The 2nd protestor mentioned Kenya Post Pension Account. The adminisators ought to establish whether there are any such funds, and if there be, disclose them and make arrangements to have them brought into the estate. It should be established whether the said pension, if at all it exists, is subject to nomination, for if it is, then the funds would be outside the realm of succession. See In re Estate of Carolyne Achieng Wagah (Deceased) [2015] eKLR (Musyoka, J), Ingati Abong’ & another vs. Kenya Commercial Bank Limited [2015] eKLR (Mwita, J), In re Estate of Carolyne Achieng Wagah (Deceased) [2015] eKLR (Musyoka, J) and LKM vs. GKM & 3 others [2017] eKLR (Gikonyo, J).

31. Assets and liabilities go together. What is available for disibution is what remains of the estate after the debts and liabilities are settled. It is the net intestate estate that should be up for disibution to the beneficiaries. See sections 35(1)(b)(5), 36(1), 38, 39, 40, 41 and 83(d)(f) of the Law of Succession Act. Section 2 defines “net estate” as “… the estate of a deceased person after payment of … debts and liabilities …” and “net intestate estate” as “… the estate of the deceased person in respect of which he died intestate after payment of … debts, liabilities…" In short, payment of debts and liabilities take priority over disibution of the estate. Disibution of the assets of the estate should not precede settlement of the debts and liabilities of the estate. In section 83, ascertainment of debts and liabilities comes under paragraph (d), while disibution of the estate follows at paragraph (f). Section 83(f) reads “… to disibute … all assets remaining after payment of expenses and debts …” The debts and liabilities should be settled first, before the idea of disibuting the assets can be conceived. Alternatively, where the debts and liabilities have not been settled, prior to the filing of proposals on disibution in court, in the proposals, at confirmation, the adminisators ought to disclose the debts and liabilities of the estate that have been ascertained, and to make proposals on how they are to be settled, and which assets would be set aside for that purpose.

32. In this case, the adminisators have not disclosed the debts and liabilities of the estate. The impression created is that the estate has no debts and liabilities. In the petition, that was filed herein on 21st May 2014, no debts and liabilities were disclosed. The column for liabilities, in the affidavit that the applicant swore, on 20th March 2014, in support of the petition, is blank. In her application for confirmation of grant, the applicant did not make averments on debts and liabilities. She did not aver to having attempted to ascertain whether the estate had debts and liabilities, and established that there were none, or that it had ascertained and established their existence, whereupon she had them settled, and provide an account of the settlement. There was total silence on the matter. The 1st protestor, in his protest affidavit, sworn on 30th October 2019, was equally loudly silent as to the debts and liabilities of the estate. He did not aver to having taken any steps to ascertain and determine the debts and liabilities of the estate, and established that none existed, or that he ascertained and determined them, and that he got them settled. He filed other affidavits thereafter, and he did not, in either of them, advert to the matter of debts and liabilities of the estate. Yet, no estate should be disibuted, before its debts have been properly ascertained and determined, and thereafter settled. I reiterate, what is available for disibution, is the net intestate estate, that is to say what remains after those debts and liabilities have been settled. Without addressing the debts and liabilities, the adminisators are putting the cart before the horse. The 2nd protestor raised an issue about possible debts owed to the tax authorities, for rent is being collected and banked, yet adminisators, in their filings, did not address the possibility of such rental income atacting taxation. This is something the adminisators ought to give attention to, for what accrues to the tax authorities takes priority over disibution of the estate.

33. Are there any such debts and liabilities? The testimony of the applicant points to existence of such debts and liabilities. She mentioned that the deceased had sold a property to one John Amena Amendi, being Marachi/Bumala/1481. She said that that property was still in the name of the deceased, and had not been ansferred to the buyer. She said that from the witness box. She had not filed any documents to disclose that debt, owed to John Amena Amendi. She did not state what steps she had taken to settle the matter. It is the duty of adminisators to perfect titles that the deceased left imperfect, or to complete ansactions that the deceased had left incomplete. If John Amena Amendi had paid the purchase price to the deceased for the property in question, then it was the duty of the adminisators to ensure that the ansaction was completed, by having the relevant consents obtained, if any, the property ansferred and the title deed processed in favour of John Amena Amendi. If that can only be done at confirmation, then that property ought to be allocated directly to John Amena Amendi in the confirmation proposals, or to the adminisators so that they can ansmit it to him after confirmation. For that to happen, the adminisators have to place on record the sale documents, plus evidence of payment. If John Amena Amendi or the adminisators are not keen on completion, then a refund of the purchase price ought to be made to John Amena Amendi. If the sale is disputed, then parties ought to move the court with jurisdiction to settle the matter. This is material that should have been disclosed in the affidavit sworn in support of the confirmation application.

34. The applicant also mentioned that the National Bank of Kenya was holding the title documents for Marachi/Bujumba/237, with respect to a loan that the deceased had taken with that bank. She said that the title documents cannot be released by the bank until after confirmation. That information was disclosed at the witness stand. There was no disclosure of the matter in the affidavits that the applicant had filed in court, and no documents were filed to support the allegation. What was not disclosed is whether the said loan has been cleared, and if it has, whether there was evidence. This material should have been disclosed in the affidavit sworn in support of the confirmation application. She mentioned that the title document for Marachi/Bujumba/1334 had been deposited in court as surety, and awaited confirmation of grant before it is released. Again, this was disclosed from the witness stand. It was not addressed in the affidavit in support of the confirmation application. It was not disclosed the proceedings in which the document was deposited. The status of those proceedings was not disclosed. Deposit of title documents to support a surety does not amount to a debt, but it can anslate to a liability, should there be default, exposing the property to the risk or being forfeited to the State. She also mentioned that the title documents for South Teso/Angoromo/1852 were being held by the Minisy of ade, Busia, again on account of a loan advanced to the deceased. There was no mention of whether that loan has been cleared. Again, this information came from the witness stand. There was no disclosure in the affidavits, and no documents were exhibited as proof. She mentioned that several other documents were being held by the County Government of Busia, being Plot No. 42 Bumala Market; Plot No. 10 Sirikhaya Ogina Market; South Teso/Angoromo/1126 and 1231; and Marachi/Bumala/1153, 1154, 1155, 1324 and 1478; and Marachi/Elukhari/1640. No reasons were given. Usually government agencies would not withhold documents without a reason. This was not disclosed in the affidavits, and no reasons were given.

35. From the above, it would appear that some assets could be encumbered, or entangled in debts or liabilities that the adminisators have not dealt with. The 1st protestor testified after the applicant, and he did not seek to clear the air over the issues. It could be that he knew something that the applicant did not know about these documents, and why they were being held. He could know whether the debts or liabilities, if any, had been settled. But he said nothing. He said he was unaware of the liabilities. He did not talk about the whereabouts of the title documents that the applicant said were held by other entities. I reiterate that no asset of the estate ought to be disibuted before the debts and liabilities of the estate have been ascertained and settled, or arrangements for settlement have been made. It would be grossly unfair, to allocate and devolve to a beneficiary an asset that is subject to a debt. It would be tantamount to assigning that debt to that beneficiary. It is the business of the adminisators to settle debts and liabilities, the beneficiaries incur no such obligation, and no debt or liability should be ansferred to them.

36. On whether the adminisators have ascertained the persons beneficially entitled to a share in the estate, I note that there is a general consensus about the children of the deceased. The general understanding is that they are or were 11. The 11 were listed in the Chief’s letter, the petition, the confirmation application and in the protest by the 1st petitioner. The adminisators prepared a joint list of agreed beneficiaries, which they signed on 1st December 2020, and filed it herein on 15th December 2020. When the applicant, the 1st protestor and the 2nd protestor testified, they all said that they were in agreement, that the list of agreed beneficiaries reflected the persons beneficially entitled to a share in the estate.

37. However, much as it appeared that there was consensus, the 2nd protestor was not fully in agreement, despite her remarks that she was in agreement on the agreed list of beneficiaries. Her issues can be split into 3. One, she identifies 3 of the 11 as being not biological children of the deceased, who should either get nothing, or be eated differently from the biological children. Two, 2 of the 11 are dead, and her issue is whether anything should be devolved to the estates of such individuals.

38. The 3 who are not biological children of the deceased are Fredrick Mukasa Okhongo, Charles Omondi Lwanga and Rosemary Awino Ochieng Kaduru. They are children of the late husband of the deceased. The 2nd protestor does not appear to have serious issues with Fredrick Mukasa Okhongo and Charles Omondi Lwanga, because she says that they grew up with them. Curiously, the 2nd protestor attaches, to her affidavit of protest, a memorial notice for her father, the deceased and Shillah Teresa Akechi, where Lwanga and Mukasa are identified as children of the deceased, together with the applicant, the 2 protestors, Caroline, Georgina, George and Sebastian Ongoma. However, she has a serious issue with Rosemary Awino Ochieng Kaduru. She concedes that Rosemary Awino Ochieng Kaduru is a child of her father, born of another mother, but she never lived with the deceased and the rest of the family. She argues that she was not dependent on the deceased, and so she should not be eated as her child. She feels that all 3 should be eated as dependants, and they should be provided for based on that, except for Rosemary Awino Ochieng Kaduru. I note though, through an affidavit of one Ephraim Muramba Obiero, sworn on 10th May 2023, and filed on 8th June 2023, Rosemary Awino was party to family meetings held shortly after the demise of the deceased, going by minutes attached of a meeting held on 29th July 2013, where she is reflected as a daughter of the deceased, who was absent from the meeting with apology. I note too, that those minutes reflected that the family comprised of 11 children, who had become orphaned following the death of their father in 1983, and of the deceased. The 2nd protestor came out as uncomfor with eating the 3 as children of her mother, yet they were not. She would have preferred to have them put in a separate category from the biological children of the deceased. The individuals, who testified, apart from Fredrick Mukasa, did not dwell on the issue. Indeed, the 2nd protestor herself did not talk about the 3 in her testimony. She was ambivalent on how the court should deal with them. Since I have not been invited to exercise discretion under section 26, through an application filed under that provision, there would be no basis for me to consider the 3 as dependants, and the issue of making reasonable provision for them should not arise.

39. Does the issue of dependency arise in this case? I do not think so. Provision for dependants is provided for under Part III of the Law of Succession Act. It arises where persons who are entitled to a share in an estate are not adequately provided for, and section 26 of the Law of Succession Act gives them a remedy, to seek court intervention, by way of an application, filed either by them or on their behalf. The issue of inadequacy of provision has not arisen in this matter. No one has raised it. No application has been filed under section 26 of the Law of Succession Act, by anyone, to warrant the court considering whether the 3 were dependants of the deceased, for whom I should make provision. Section 26 is worded in a manner which suggests that the issue of dependency can only arise where an application is mounted under section 26. It is not something that the court can consider suo moto. Neither can it be raised or arise in another application, say for confirmation or revocation of grant, in the absence of a summons under section 26, for reasonable provision. If it was intended that the discretion in section 26 could be exercised suo moto, then the drafters of that law would have used language similar to that used in section 76, where a court is empowered to revoke a grant on “its own motion.”

40. For avoidance of doubt, section 26 of the Law of Succession Act provides:“26. Provision for dependants not adequately provided for by will or on intestacyWhere 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 for that dependant, order that such reasonable provision as the court thinks fit shall be made for that dependant out of the deceased's net estate.” (Emphasis added)

41. The general sense that I get is that the 3 were children that the father of the applicant, and of the protestors, sired outside of marriage, he recognized them as his children, and brought them home to be raised by the deceased. They are stepchildren of the deceased. Normally stepchildren have no right to succession to the property of their stepparent. See Naomi Watiri Githuku vs. Naphtali Kamau Githuku & another [2006] eKLR (Koome, J), In re Estate of Dorcas Wanjiku (Deceased) [2014] eKLR (Musyoka, J), In re Estate of Serah Wanjiku Njenga (Deceased) [2017] eKLR (Muigai, J) and In re Estate of Rispa Akongo Odongo (Deceased) [2019] eKLR (JR Karanjah, J). The majority of the biological children of the deceased appear to have no issues about the 3. The 2nd protestor appears a little uncomfor about them, while the 1st protestor appears to advance the position that they ought to accept whatever he and his side of the family have allocated to them. Out of the 3, only Fredrick Mukasa testified. He proposed that the estate be shared out equally, perhaps in response to the argument that they ought to be eated as children in a secondary tier. What should I do with them? The majority appear to consider them to be their siblings, notwithstanding that they were not biological children of the deceased, and the rest are ambivalent on the matter. I shall eat the 3 as children of the deceased for purposes of succession and disibution. Section 3(2) of the Law of Succession Act defines “child” to include one who has been taken in, recognized and accepted as such, and in respect of whom permanent responsibility has been assumed. I am alive to Willingstone Muchigi Kimari vs. Rahab Wanjiru Mugo, Nairobi Court of Appeal Civil Appeal Number 168 of 1990 (Gachuhi, Muli & Akiwumi, JJA), where it was said that a child, informally adopted by a female deceased person, is not a child for the purpose of succession to the estate of such deceased female person. However, that position was taken prior to the promulgation of the Constitution of Kenya in 2010, and, in view of Article 27 and Wanjiru & 4 others vs. Kimani & 3 others (Civil Appeal 36 of 2014) [2021] KECA 362 (KLR) (W Karanja, HA Omondi & Laibuta, JJA), it would be eated as inapplicable today, on grounds of discrimination. As none of the parties was keen on discussing the circumstances under which the 3 came to be part of the family, and preferred that the court just disibute the estate, and move on, that is the same attitude that I shall adopt. I shall eat the situation as peculiar or unique, the peculiarity or uniqueness being for reasons that the parties were careful not to get into. I shall leave it at that. I am guided by Justus Thiora Kiugu & 4 others vs. Joyce Nkatha Kiugu & another [2015] eKLR (Visram, Koome & Otieno-Odek, JJA), that where there is consensus on some aspect of the confirmation process, the court may go by that consensus.

42. The second issue surrounds the matter of the 2 dead children: Shillah Teresa Akechi and Rosemary Awino Ochieng Kaduru. The issue is that both were survived by children of their own, all of whom now reside outside the jurisdiction of this court, and it is alleged that their whereabouts are unknown. These issues were raised by the 2nd protestor. She felt that where the offspring of certain beneficiaries are outside the jurisdiction of the court, and their whereabouts are unknown, then their share is extinguished, and the estate should be disibuted without reckoning them. I do not know, and I cannot tell, whether the whereabouts of the children of the 2 are unknown. I do not know whether it would be impossible to ace them. The adminisators did not speak about the issue, but both proposed to provide for the 2 dead children. The obligation is on the adminisators to ascertain and ace beneficiaries. The share due to beneficiaries is not extinguished merely because the adminisators have not been able to ace them, or have difficulties acing them, or fear that it would be difficult to ace them, or the beneficiaries have relocated to foreign lands. See In re Estate of Eugenia Wamuchie Waweru (Deceased) [2017] eKLR (Musyoka, J), In re Estate of Stanley Franklin Habwe (Deceased) [2017] eKLR (Musyoka, J) and In re Estate of MG (Deceased) [2020] eKLR (T. Matheka, J). The share due to such individuals is held in ust for them by the adminisators, and the adminisators tasked to look for or ace them. The adminisators should not sit back and do nothing, they should move, and look for them, spending estate funds for that process, to hire private investigators, and to buy space in the media for the purposes of issuing appropriate notices. The children of the dead children of the deceased, otherwise known as grandchildren, have a right to inherit the share that ought to have been taken by their dead parent, were they alive. The law on this is section 41 of the Law of Succession Act. See In re Estate of Veronica Njoki Wakagoto (Deceased) [2013] eKLR (Musyoka, J), Martin Munguti Mwonga vs. Damaris Katumbi Mutuku [2016] eKLR (Thande, J), In re the Estate of Joseph Gichuki Riunge (Deceased) [2016] eKLR (Musyoka, J) and Titus Mbaabu M’Iracha vs. Justus Muthamia & 4 others [2017] eKLR (Gikonyo, J).

43. The 1st protestor submitted that the applicant remained a married woman whose stake was elsewhere, and she stood to disadvantage the other, read male, beneficiaries. With respect, this is misogynistic, and flies in the face of both the provisions of the Constitution and the Law of Succession Act. It is an unfortunate submission to make in this day and age. Article 27 of the Constitution outlaws discriminations based on gender and marital status. It commands that men and women be eated equally in all spheres of life, including in matters relating to succession. Article 27 is to be read together with Article 2(4) of the same Constitution, to effect that any act done in conavention of any of the provisions of the Constitution would be invalid. The applicant, and the other female beneficiaries in the matter, are no lesser beings, because they are women, or because they are married women. All are equal in the eyes of the law. When it comes to succession, by dint of the Constitution and of the Law of Succession Act, and in particular disibution, there is no man nor woman, no son nor daughter, no male nor female, no married nor single person. All are equal before the law, and all are to be eated equally. No distinctions are made. There are no exceptions. The Law of Succession Act, at sections 35(5) and 38, provides for equal disibution amongst the children, and no mention is made of sons and daughters, or male and female, or married and unmarried. The beneficiaries herein, be they male or female are equal, and I shall eat all of them, without any exception, equally. It should be up to the daughters or granddaughters of the deceased to decide, on whether to take what they are entitled to, under the Law of Succession Act, from the estate of their mother or grandmother, or whether they would forgo it and leave it to their male relatives, or, upon the property being devolved to them, whether to give it away to tehir male siblings or relatives. That decision is not to be made by the court, nor by the male relatives.

44. Articles 2(4) and 27 of the Constitution state as follows:“2. Supremacy of this Constitution(1)(2)(3)(4)Any law, including customary law, that is inconsistent with this Constitution is void to the extent of the inconsistency, and any act or omission in conavention of this Constitution is invalid.(5)“27. Equality and freedom from discrimination(1)Every person is equal before the law and has the right to equal protection and equal benefit of the law.(2)Equality includes the full and equal enjoyment of all rights and fundamental freedoms.(3)Women and men have the right to equal eatment, including the right to equal opportunities in political, economic, cultural and social spheres.(4)The State shall not discriminate directly or indirectly against any person on any ground, including race, sex, pregnancy, marital status, health status, ethnic or social origin, colour, age, disability, religion, conscience, belief, culture, dress, language or birth.(5)A person shall not discriminate directly or indirectly against another person on any of the grounds specified or contemplated in clause (4).(6)…(7)...(8)…”

45. Sections 35(5) and 38 of the Law of Succession Act, provide as follows:“35(1)…(2)…(3)…(4)…(5)Subject to the provisions of sections 41 and 42 and subject to any appointment or award made under this section, the whole residue of the net intestate estate shall on the death, or, in the case of a widow, re-marriage, of the surviving spouse, devolve upon the surviving child, if there be only one, or be equally divided among the surviving children.36…37…38Where the intestate has left a surviving child or children but no spouse, the net intestate estate shall, subject to the provisions of sections 41 and 42, devolve upon the surviving child, if there be only one, or be equally divided among the surviving children.39…”

46. The other category of beneficiaries to be ascertained are creditors. I have dealt with this above. I have stated that debts and liabilities of the estate take priority over disibution. Therefore, creditors rank higher than the children of the deceased. They must be settled first, before the children are considered. That is the law. So, what the adminisators must do is to ascertain, identify and determine creditors, and settle them, before disibution is proposed. Where a debt is contested, let the matter be escalated to the court with jurisdiction, to determine the dispute, and let the asset affected not be disibuted, pending the verdict. As indicated above, the creditors of the estate have not been ascertained, for no account of creditors was placed before the court. Remarks were made, at the witness box, about debts owed to John Amendi, Minisy of ade and the County Government of Busia.

47. Having disposed of the matters of assets and liabilities, and beneficiaries, let me advert to disibution. The deceased was survived by 11 children. According to section 35(5) and 38 of the Law of Succession Act, the property of an intestate survived only by children, but no spouse, the property is to be shared equally amongst the children. However, there is room for departure from what the law prescribes, and parties may agree on a mode of disibution. It was said, in Justus Thiora Kiugu & 4 others vs. Joyce Nkatha Kiugu & another [2015] eKLR (Visram, Koome & Otieno-Odek, JJA), that an intestate estate could be disibuted otherwise than by the parties agreeing amongst themselves and filing a consent, or by the court following the provisions of the Law of Succession Act on intestate disibution, in the absence of such consent. It was stated that where the parties were in total agreement, and recorded a consent on the mode of disibution, the court would have no choice but to adopt the consent. Where there is no consensus, the court imposes the provisions of the Law of Succession Act. It was said, in In re Estate of Juma Shiro (Deceased) [2016] eKLR (Mwita, J), that where the beneficiaries had not agreed on the mode of disibution, the court would resort to the provisions of the Law of Succession Act to resolve the issue. Is there consensus in this case on disibution? I do not think so. The family is split right in the middle. A section of 5 stand on one side, with the rest on the other. In such a scenario, there would be no discretion, but to apply the sict provisions of the Law of Succession Act.

48. The second consideration is that disibution is about the assets that are free. Free in the sense of being available for disibution. Assets that are disputed, or subject to litigation, or to lien or charge, or under sale, are not free, and ought not be disibuted. The court should only disibute assets that are indisputably free of any claim. Are there such assets herein? The bulk of the estate appears to be free property. The applicant alluded to some assets that are not quite free, either because the deceased had allegedly sold them, or are being held by another entity on account of something. She provided no proof of those claims. She did not provide evidence that the land allegedly sold had in fact been sold, or that the other assets were subject to liens of one sort or other. It is ite that he who alleges must prove. However, I shall move with some level of caution here, to avoid headwinds later. I would rather that the alleged or implied liens or encumbrances be investigated first, and cleared, if they exist, before the property is disibuted. Otherwise, the rest of the assets that have no issues shall be disibuted in this ruling.

49. I was told that the deceased had made some lifetime disibution or made gifts inter vivos. The 1st protestor claims a piece of land, which he says was gifted to him by the deceased, and that he had developed it thereafter. Fredrick Mukasa Okhongo also alluded to being given some 3 plots, where he allegedly put up suctures. Lifetime gifting is about the deceased making a gift of a property, and actualizing it. For movables, it is parting with possession of the gift. For property which is subject to regisation, such as motor-vehicles and land, it is about obtaining ansfers, regisation and documents of title. That would be the classic gift inter vivos. See In re Estate of Gedion Manthi Nzioka (Deceased) [2015] eKLR (Nyamweya, J). As much of what I am dealing with here is immovable, it would be a case of the property owner obtaining the necessary consents, signing the necessary ansfers, having the same registered, the title documents obtained and handed over to the beneficiary. Such a gift would cease to be estate property. See In re Estate of Muchai Gachuika (Deceased) [2019] eKLR (Gikonyo, J) and Lucia Karimi Mwamba vs. Chomba Mwamba [2020] eKLR (Gitari, J). Anything short of that would not suffice for a lifetime gift. Being shown a piece of land to settle on, or to farm, or to cultivate, or to use one way or other, without more, is not a gift inter vivos. There has to be ansfer of ownership. However, in some cases, the gift may be deemed, where the owner takes preliminary steps towards actualizing the gift, but dies before completion. See In re Estate of Nyachieo Osindi (Deceased) [2019] eKLR (Ougo, J). Such would be the case where, perhaps, only the final step, such as regisation of ansfer, was remaining.

50. Were gifts inter vivos or lifetime gifts made in this case? I have no evidence of the same. None of those who claimed to had been gifted inter vivos provided proof of any assets that the deceased had ansferred to their names, or in respect of which she died while in the process of so ansferring. All I heard was that they had been shown places to work on, and no more. The property remained that of the deceased, available for disibution in these proceedings. The parties talked of property being brought to the hotchpotch. Only lifetime gifts can be brought to the hotchpotch, so that the fact can be noted for the purpose of fairness and equality in disibution. See In re Estate of Francis Waita Mbaki (Deceased) [2018] eKLR (Muriithi, J). Where no such gifts were made, then section 42 of the Law of Succession Act would be irrelevant, for there would be nothing to bring to the hotchpotch.

51. Issues of accountability by the adminisators came up. It cannot be gainsaid that the adminisators are fiduciaries, for they hold property belonging to another, for the benefit of others. As fiduciaries, they are accoun to the eventual beneficiaries of the property they hold. They have a duty to account for whatever assets that come into their hands. See In re Estate of Andrew Kisa Saikwa (Deceased) [2018] eKLR (Muigai, J). Adminisators, unlike executors, are appointed by the court. They owe a duty to account to the court, as appointing authority. The court has a duty to monitor performance by the adminisators, as there is power to remove them from office, in the event of failure to discharge their duties effectively. To facilitate the monitoring, accounting would be essential. The duty cast on adminisators, to account, is statutory. It is required under section 83(e)(g) of the Law of Succession Act, and it is one of the grounds upon which a grant may be revoked, under section 76(d)(iii), for failure of adminisation. It is a critical cog in adminisation, and the failure to account is an indicator of a failed adminisation.

52. Sections 76(d)(iii) and 83(e)(g) of the Law of Succession Act state as follows:“76. A grant of representation, whether or not confirmed, may at any time be revoked or annulled if the court decides, either on application by the interested party or of its own motion –a.…b.…c.…d.That the person to whom the grant was made has failed, after due notice and without reasonable cause eitheri.…ii.…iii.to produce to the court, within the time prescribed, any such inventory or account of adminisation as is required by the provisions of paragraphs (e) and (g) of section 83 or has produced any such inventory or account which is false in any material particulars; ore.…”“83. Personal representatives shall have the following duties –a.…b.…c.…d.…e.within six months from the date of the grant, to produce to the court a full and accurate inventory of the assets and liabilities of the deceased and a full and accurate account of all dealings therewith up to the date of the account;f.…g.within six months from the date of confirmation of the grant, or such longer period as the court may allow, to complete the adminisation of the estate in respect of all matters other than continuing usts, and to produce to the court a full and accurate account of the completed adminisation.”

53. The adminisators herein have been figured by the 2nd protestor on 3 areas where it is alleged that they should account, or had failed to account. The first relates to the ansmission, by the applicant of some estate assets to her name. I have dealt with that above, and found and held that the same is allowed by law, as an aspect of the adminisation, the applicant, therefore, has nothing to account for there.

54. The second area relates to collection of rent. F. Tuiyott J had directed the adminisators to open a joint account, where rents and income could be paid into. It emerged that that account was opened, and tenants are said to be depositing rent into the account. None of the adminisators admitted to be collecting rent currently. The applicant claimed that she has never collected rent, at any time, both before and after that order by F. Tuiyott J, and that it was the 1st protestor who was collecting the rent all through. The 1st protestor admitted to collecting rent before then, but then said that he stopped after the account was opened, and that he advised the tenants to pay to the applicant. When the applicant mounted her application for confirmation of grant, she did not list the rent collected as an asset of the estate, and she did not propose its disibution. Neither did she render an account of that rent, in terms of how much has been collected to date, and how much is held in the rent account. All she said was that the money is paid into that account, and there are no withdrawals. A confirmation application is not just about disibution of assets, it is also about accounting. According to section 71 of the Law of Succession Act, the court makes 2 confirmations at the same time. It confirms the work of the adminisators, and has to decide whether to allow them to go on to complete adminisation based on the approved disibution. The second confirmation is of the disibution proposed. Section 71(2)(a)(b) is about confirming adminisators, in terms of whether the grant was obtained properly, and, if it was, whether the adminisators have administered the estate in accordance with the law, and, finally, whether, if confirmed, the adminisators would continue to administer the estate in accordance with the law. The adminisators herein were appointed by the court, in a considered ruling, that was delivered on 2nd February 2016, after a hearing was conducted. There should be no issue about how the grant was obtained. To assess whether the adminisators have administered the estate in accordance with the law, they must, when they apply for confirmation of grant, account for what they have done with the estate since their appointment. What they have done, in terms of ascertaining, identifying and acing beneficiaries, be they heirs, survivors, dependants, creditors, etc. What they have done with respect to ascertaining, identifying and acing assets, and then gathering collecting and bringing them into the estate. What have they done with respect to ascertaining the debts and liabilities of the estate, and thereafter settling or discharging them. Collecting rent falls under collecting, gathering and bringing assets to the estate. The court would like to know how the estate had been handled or managed, to enable the court gauge whether the same was done in accordance with the law, whether the adminisators had been effective in their work, and whether they should be tasked with completion of adminisation through disibution.

55. Section 71(2)(a)(b) of the Law of Succession Act states:“71(1)…(2)The court to which application is made, or to which any dispute in respect thereof is referred, may –(a)if it is satisfied that the grant was rightly made to the applicant, and that he is administering the estate, and will administer, the estate according to law, confirm the grant; or(b)if it is not satisfied, issue to some other person or persons, in accordance with the provisions of sections 56 to 66 inclusive, a confirmed grant of letters of adminisation in respect of the estate, or so much thereof as may be unadministered; or(c)…”

56. With respect to the rents, the adminisators have not accounted to the court. None of them has made an effort to tell the court how much has been collected since 2016. No statement of account was filed. A copy of a bank statement on the joint estate account has not been obtained from the bank, and placed on record. The court is in the dark on how the adminisators have managed that aspect of their adminisation. There is no knowing whether the rents were ever collected, where that money is, how much there is, and whether the same is safe. There is no statement on which assets are generating rental income. No account has been given of the number of the tenants who occupy estate assets, and of how much they pay. If there are tenants in occupation of these assets, someone must have put them in there. Someone must be answerable to them, to address any challenges that the tenants might have with the premises. When they have to vacate, there must be someone to whom they handover vacant possession. I would hate to assume that the tenants just put themselves into possession, and then vacate at will without handing over to anyone. The person responsible for them should have stepped up, and accounted. There is, no doubt, failure of responsibility.

57. The third area is about the KeNHA compensation. I have addressed aspects of this matter. The applicant received the money. She said that it was not an asset of the estate, yet it was income from the estate, or a capital asset of the estate, for it was compensation for estate assets compulsorily acquired by the government. The funds formed part of estate assets. She went to bank it in her private account. Surely, it was not her money, what was it doing in a private account? The order of 2nd February 2016, had directed the opening of an estate account, to receive all the moneys of the estate, not just rent. The order talked or rent and income. Income meant any other funds accruing to the estate. The applicant was under a duty to deposit those funds into the joint estate account ordered by F. Tuiyott J. When time came for her to apply for confirmation of the grant, she ought to have accounted for the money to the court, and the beneficiaries, through her affidavit in support of her confirmation application, in terms of the amount received, what it was for, and what she had done with it. She did not even ask the court to disibute it. She was under a duty to account to the court regarding how she had gathered the estate and preserved it, awaiting disibution. Keeping estate funds in a personal account is not collection and preservation of the estate. To make it worse, when she got a chance to render an account, she did not account. When she got a chance to propose the money for disibution, she did not. Perhaps, she thought it was not an estate asset. But then, what was she planning to do with all that money, if it was not to be presented to court for disibution.

58. George Muyodi Otieno was the other subject. He is said to be intellectually challenged. He requires someone to assist him, and play guard over him. I was told that he was married at one time, and had 2 children, but the wife and her children left. I have seen, in the record, medical documents, showing that he has a mental disability. I was invited to appoint a guardian to take care of him, and particularly to be in charge of adminisation and management of the property to be devolved to him. However, my remit as a probate court is to disibute property of a dead person, it does not extend to appointing guardians for beneficiaries. The share due to George Muyodi Otieno should be held by the adminisators, in continuing ust, pending appointment of a guardian and manager of his estate, under the Mental Health Act, Cap 248, Laws of Kenya.

59. So, should I disibute the estate despite some assets not having been properly collected and brought into the estate? And debts and liabilities not being properly ascertained and determined? And accounts not rendered of the total rental income of the estate, and there being no account of the moneys received from KeNHA? The ideal should be to disibute after everything has been properly done. However, I note that the deceased herein died in 2013, some 10 years ago, and the estate is yet to be disibuted. Tensions have been high, and competition and rivalry intense. I should partially disibute the assets in respect of which there are no issues, to move the matter forward. The assets that shall be left undisibuted in this ruling, particularly the cash money, should be adequate to cater for settlement of any debts and liabilities, should it be established that there are such debts and liabilities.

60. The deceased died in 2013, long after the Law of Succession Act had come into force in 1981. The estate is for sharing in accordance with Part V of the Law of Succession Act. The deceased was not survived by a spouse, and, therefore, section 38 applies, it provides for the property to be shared equally amongst the children. Some of the children have died, but are survived by children of their own, and so section 41 shall apply, so that the share due to the dead children shall devolve upon their children. If the adminisators are unaware of the whereabouts of the said children of the dead children of the deceased, it will be their duty to ace them. George Muyodi Otieno is mentally challenged, but his share shall be devolved to him, and the necessary and appropriate applications shall thereafter have to be made, under the Mental Health Act, for adminisation and management of his estate. The beneficiaries have been unable to agree on disibution, by consent, and I shall be guided by Justus Thiora Kiugu & 4 others vs. Joyce Nkatha Kiugu & another [2015] eKLR (Visram, Koome & Otieno-Odek, JJA) and In re Estate of Juma Shiro (Deceased) [2016] eKLR (Mwita, J), and I shall disibute all the assets sictly, in accordance with section 38 of the Law of Succession Act. The actual disibution on the ground shall, at ansmission, take into account any developments by any of the beneficiaries. I was asked to give the portion where the family home stands to the last born son, ostensibly to comply with custom. That would be an issue to be addressed, at ansmission, when the land is mapped out on the ground, for disibution. I shall not disibute Marachi/Bujumba/237 and 1334; South Teso/Angoromo/1126, 1231 and 1852; Marachi/Elukhari/1640; Marachi/Bumala/1153, 1154, 1155, 1324 and 1478; Plot No. 42 Bumala Market and Plot No. 10 Sirikhaya Ogina Market, until the issues that I have discussed about them, in paragraph 34, hereabove, are resolved. The adminisators shall have to confirm whether the same are free and available for disibution. If they are tied down with debts and liabilities, then let those debts and liabilities be cleared first before the court can make orders on their disibution. On the rental income and the compensation with KeNHA, let the adminisators account for these assets, with adequate supporting documentation. Disibuting the assets equally would be the best way of satisfying the equality principle envisaged in Article 27 of the Constitution, and sections 35(5) and 38 of the Law of Succession Act, considering that the valuations of all the assets were not done, as the only valuations on record relate to the commercial plots. Requiring that valuations be done for the 39 assets, will expose the estate to colossal expenses. The second reason for going for equal disibution, is that I sense that the proposals, that have been placed on record by the applicant and the protestors, grossly favour the 3 of them, at the expense of the other beneficiaries.

61. The other thing that I should deal with should be consideration on whether I should confirm the adminisators or not. The applicant was, initially, a sole adminisaix. In the ruling of 2nd February 2016, F. Tuiyott J found that the proceedings under which she obtained the grant were defective, but she was still given the benefit of the doubt, but a co-adminisator was appointed, the 1st protestor herein. Has she acquitted herself, as adminsaix? By administering the estate in accordance with the law? I am not satisfied. She has not accounted for huge sums of money that have come into the estate, yet she is inviting the court to disibute the estate, but without making provisions for those funds. What about the 1st protestor, has he acquitted himself? He is in the same boat with the applicant, he has not accounted for the same funds. His protest is silent on whether such funds exist. The reason the court appoints more than one adminisator is so that they can work corporately, and cover all the gaps, in the sense that where one adminisator fails in one aspect of the adminisation, the other moves in to address that gap. Unfortunately, in this case, the adminisators are not working in tandem. There is no evidence that the 1st protestor has moved in to address the shortcomings by the applicant. When the applicant failed to account for the rental income and the compensation funds from KeNHA, the 1st protestor ought to have, in his protest, addressed those issues. He should have obtained the relevant documentation and placed it on record, for accountability. He is an adminisator, and he shares the duty to account with the applicant. Should I remove them from office? They both qualify for removal, for these failures. However, I shall refrain from exercising that discretion, which is given to me under section 71(2)(a)(b) of the Law of Succession Act, to remove adminisators, at confirmation, and to replace them with others. Completion of adminisation has, in this instance, taken too long. The 2 have institutional memory on what has been going on, and for continuity sake, and to obviate further delay, I shall retain them. The law allows appointment of up to 4 adminisators, according to section 56(1)(b) of the Law of Succession Act, I shall appoint an additional adminisator, to boost the adminisation, and to inject new blood into it.

62. The final orders are:a.That Bukhayo/Bugengi/1126, 1128 and 1643; Bukhayo/Matayos/1459 and 1524; Bukhayo/Mundika/1642; Marachi/Bujumba/214, 215, 244, 624, 632, 641, 1226, 1247, 1433, 1583 and 1627; Marachi/Bumala/58, 59, 60, 70, 72, 73, 1231 and 1481; Plot No. 481 Bungoma; and Plot No. 7 Sirikhaya Ogina Market have been ascertained and determined to be free assets of the estate, available for disibution;b.That Praxedes Adhiambo Otieno, Giannaenerica Kwena Otieno, Shillah Teresa Akechi, Caroline Makokha, Georgina Beaice Njago, Rosemary Awino Ochieng Kaduru, Kenny Otieno Omondi, George Muyodi Otieno, Sebastian Paick Ongoma, Fredrick Mukasa Okhongo and Charles Omondi Lwanga have been ascertained and determined to be the survivors and beneficiaries of the estate of the deceasedc.That Bukhayo/Bugengi/1126, 1128 and 1643; Bukhayo/Matayos/1459 and 1524; Bukhayo/Mundika/1642; Marachi/Bujumba/214, 215, 244, 624, 632, 641, 1226, 1247, 1433, 1583 and 1627; Marachi/Bumala/58, 59, 60, 70, 72, 73, 1231 and 1481; Plot No. 481 Bungoma; and Plot No. 7 Sirikhaya Ogina Market shall devolve equally to Praxedes Adhiambo Otieno, Giannaenerica Kwena Otieno, Shillah Teresa Aketch, Caroline Makokha, Georgina Beaice Njago, Rosemary Awino Ochieng Kaduru, Kenny Otieno Omondi, George Muyodi Otieno, Sebastian Paick Ongoma, Fredrick Mukasa Okhongo and Charles Omondi Lwanga in accordance with section 38 of the Law of Succession Act;d.That any share going to a child of the deceased, who is since dead, shall devolve upon his or her estate, to be disibuted in succession proceedings to be initiated by individuals beneficially entitled to that estate;e.That the documentation, relating to the share devolved to George Muyodi Otieno, shall be retained by the adminisators, in ust, until an appointment of a guardian or guardians, or supporter or supporters, under the Mental Health Act;f.That disibution on the ground, at ansmission, shall take into account any developments by any of the beneficiaries, and any assets that cannot be subdivided due to their size shall be sold and the proceeds therefrom shared equally amongst all the beneficiaries;g.That the applicant and the 1st protestor are hereby confirmed as adminisators, but I additionally appoint the 2nd protestor as co-adminisaix, to help them complete the adminisation;h.That the grant herein is partially confirmed on those terms, and a certificate of confirmation of grant shall be issued accordingly, and the adminisators shall cause the assets, the subject of the said certificate, to be ansmitted to the beneficiaries within the next 6 months, as required by section 83 of the Law of Succession Act;i.That the adminisators shall, jointly and severally, within the next 45 days, file an account on the rents received from the properties of the estate, and paid into the joint estate account at the National Bank of Kenya, Busia, opened on the basis of the orders of 2nd February 2016;j.That the applicant shall, in the next 45 days, cause the KeNHA compensation funds to be deposited into the joint estate account at the National Bank of Kenya, Busia branch, as had been directed on 2nd February 2016, and she shall, within the same period, render a full and accurate account relating to the said KeNHA funds;k.That the applicant shall cause, within the next 45 days, all the assets that were ansferred to and registered in her name, and have not been disibuted in this ruling, to revert to the name of the deceased;l.That to facilitate an efficient, effective and ansparent completion of adminisation herein, the applicant and the 1st protestor shall cause the 2nd protestor to be made a signatory to the joint estate account at the National Bank of Kenya, Busia;m.That the adminisators shall ascertain whether there are any debts and liabilities, or encumbrances of any other kind, relating to Marachi/Bujumba/237 and 1334; South Teso/Angoromo/1126, 1231 and 1852; Marachi/Elukhari/1640; Marachi/Bumala/1153, 1154, 1155, 1324 and 1478; Plot No. 42 Bumala Market and Plot No. 10 Sirikhaya Ogina Market, and a report thereon shall be filed within 45 days;n.That the adminisators shall ascertain whether there was any pension due and payable to the deceased, whether that pension has been paid, and whether the rents collected from estate assets, and banked as ordered, atact taxation, and shall file a report within 45 days;o.That the matter shall be mentioned after 45 days, with respect to the issues the subject of orders (g)(h)(i)(j)(k)(l) and (m), above, for compliance and monitoring, after which directions shall be given on the outstanding issues;p.That each party shall bear their own costs; andq.That any party aggrieved by these orders has leave of 30 days, to move the Court of Appeal, appropriately;

RULING DATED AND SIGNED AT BUSIA AND DELIVERED BY EMAIL ON THIS1STDAY OF DECEMBER 2023WM MUSYOKAJUDGEMr. Arthur Etyang, Court Assistant.AdvocatesMr. Gabriel Fwaya, Advocate for the applicant.Mr. Opiyo, insucted by Aming’a Opiyo Masese & Company, Advocates for the 1st protestor.Mr. Masafu, insucted by Wekesa & Simiyu, Advocates for the 2nd protestor.