[2017] KEHC 1356 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT BUNGOMA

PROBATE & ADMINISTRATION CAUSE NO.67 OF 2001

RE: ESTATE OF AINEA MASINDE WALUBENGO DECEASED

AND

ALBERT NYONGESA………………………………….PETITIONER

VERSUS

TITUS NYONGESA MASINDE………………………...OBJECTOR

JUDGEMENT

1. This case revolves around the Estate of one Ainea Masinde Walubengo (deceased) who died intestate living behind one widow and several children.

2. During his life time the deceased had 3 wives and children as follows:

Dinah Namkoye 1st wife who sired 7 children namely;

1. Florence Namanyama

2. Samson Khaemba (deceased)

3. Susan Nekesa

4. Dina Nabukubu

5. Jafred Okinu (deceased)

6. Albert Nyongesa

7. Beatrice Nasama.

2nd widow had 7 children as follows;

1. Charles Musungu Masinde

2. Grace Nasuma (deceased)

3. Titus Nyongesa

4. Silas Wanyonyi

5. Patrick Wamalwa

6. Geoffrey Wanjala (deceased)

Anna Nanjala the third widow had 8 children namely;

1. Rosemary Nafula

2. Simon Wekesa

3. Martin Shikuku

4. Dickson Wanyama

5. Zachayo Wafula

6. Margaret Nambuye

7. Christine Masinde &

8. Henry Masinde

3. The deceased owned two parcels of land, being L.R. No. Bokoli/Bokoli/361 measuring 18. 5 acres and L.R. No. Bungoma/Tongareni/423 measuring Approximately 15 acres.

4. The Court following objection proceedings appointed three administrators from each of the houses. Left for the Court’s determination is distribution of the Estate of the deceased, which the beneficiaries have failed to agree upon despite several attempts by this Court to promote conciliation amongst the family members.

5. The case for the objector is that the deceased died intestate leaving behind LR. No. Bungoma/Tongareni/423 measuring 15 acres and L.R. No. Bokoli/Bokoli/361 measuring 18. 5 acres which the deceased did not share out amongst his survivors during his life time. His desire is that the estate of the deceased be shared equally amongst the 12 sons and an acre each be given to Peter Wanyonyi and Moses Wanjala Ainea grandsons of the deceased whom he had given land during his life time.

6. On the other had the Petitioner representing the interest of the 1st house is opposed to the Objector’s proposal. It is his case that the deceased shared his property to the three houses during his life time. That his mother’s house comprising of two son’s namely Albert Nyongesa and Samson Khaemba (deceased) were given property LR. No. Bokoli/Bokoli/361 (Bokoli). And Bungoma/Tongareni/423 (Tongareni) was shared amongst all the other sons from House No.2 & 3. That at no time did his deceased father leave a will behind indicative of equal sharing amongst his sons neither did the deceased settle his two grandchildren in the Bokoli/Bokoli/361 as it was being alleged.

7. At the hearing the Objector had 3 witnesses whose evidence may be summarized as follows;

House No.2 & 3 have lived in Tongareni since 1965. The 2 houses have 10 sons in total. That the 1st widow moved to Tongaren in 1966 and only returned to Bokoli in 1974. That the widow first occupied portions of land without any sort of formal distribution. Further that the deceased had 8 daughters who have claimed no interest save for one Dinah who claims on behalf of her 2 sons who were given 1 acre each as she gave birth to them while at her father’s home. That although Dinah’s sons were given land by the deceased the Petitioner evicted them after the death of the deceased.

That all children of the deceased were born in Bokoli before they all moved to Tongaren, and much later sons of the 1st house moved to Bokoli.

8. The Petitioner equally had 3 witnesses whose evidence is that; in 1965 the deceased bought the Tongaren property where he moved house No. 2 & 3 leaving house No. 1 in Bokoli. That the deceased put a boundary as he divided the Bokoli land to the two sons of the first house, namely Albert Nyongesa and Samson Nyongesa (deceased), further that the deceased never gave any of his grandchildren land in Bokoli as was alleged. That each of the sons at Tongaren has 9 acres.

9. From the pleadings, evidence and submissions by the parties, I form the opinion that the issues for determination are;

(i) Whether or not the deceased left a will

(ii) Whether or not the deceased had divided and distributed his land to his heirs before his death.

(iii) What is the applicable law in the circumstances of the case

(iv) Who meets the cost of this suit.

10. It is quite clear from the evidence on record that the deceased did not leave behind any written or oral will known to Law, neither did he distribute or divide his land among his heirs. The objector whose evidence is that the deceased wanted to have his sons share his properties did not produce any evidence. On the other hand the Petitioner did not adduce any concreate proof of his assertion that the deceased gave him and his brother his land in Bokoli. Indeed in the African set up distribution of land is not a secret it is an occasion done in the presence of either the village elder, relatives or indeed the family and clan, no such evidence was placed before Court in support of the Petitioner’s claim.

11. Having set the scenario above what is left for the Court is to consider the applicable Law. In the circumstance Section 40 of the Law of Succession Act (Cap.160) of the Laws of Kenya provides for where an intestate was polygamous. It states as follows;

“where intestate was polygamous

(1) Where an intestate has married more than once under any system of Law permitting polygamy, his personal and household effects and the residue of the net intestate estate, shall, in the first instance, be divided among the houses according to the number of children in each house, but also adding any wife surviving him as an additional unit to the number of children.

(2) The distribution of the personal and household effects and the residue of the net intestate within each house shall then be in accordance with the rules set out in sections 35 to 38.

12. From the onset the Section above does not discriminate amongst male or female children neither does it refer to any customary Law that would purport to discriminate against wives or daughters or sons from different houses. Secondly it empowers the Court to distribute to each house in accordance with the number of children. The Court’s have held that in distributing an estate a Court must be equitable. In the Rono Vs Rono Civil Appeal No.66 of 2002 Waki J.A. stated inter alia

“More importantly, Section 40 of the Act which applies to the estate makes provision for distribution of the net estate to the houses according to the number of the children of each house, but also adding any wife surviving the deceased as an additional unit to the number of children. “A house in a polygamous setting is defined in Section 3 of the Act as a ‘family unit comprising a wife and children of that wife.’ There is no discrimination of such children on account of sex.”

“I think in the circumstances of this case there is considerable force in the argument by Mr. Gacheru that the estate of the deceased ought to have been distributed more equitably taking into account all relevant factors…”

In the same Case Omolo J.A. had this to say

“My understanding of that Section is that while the net intestate estate is to be distributed according to houses, each house being treated as a unit, yet the judge doing the distribution still has a discretion…”

In Martha Wanjiku Waweru versus Mary Wambui Waweru Civil Appeal No.2002 Onyanja J as he referred to Section 40 of the Succession Act Cap 160 stated;

“In my view, while the Section authorizes the Court to distribute an estate according to houses (in a polygamous situation) it does not provide that the shares to each house must necessarily be equal. They can differ for good reason.”

13. In my view guided by Section 40 of the Law of Succession Act and authorities cited, in distributing an estate the Court has to ensure equitable distribution. The Court may distribute equally if it is desirable, it can also for good reason distribute differently but equitably.

14. Other than Dinah, a daughter who has come forth to claim no-ne of the other daughters lay a claim against the Estate. It is not clear whether they are all married and settle elsewhere or have no interest in the estate at all. Anna the widow will have to be considered as well. Several of the sons are indicated as deceased, it did not come out clearly whether the dead sons of the deceased left behind wives and children.

15. Having stated as above I am of the view that Section 40 of the Law of Succession Act will apply to the circumstances of this Case. Meaning that the Court will distribute the estate of the deceased according to each house taking into account the number of children in each unit including the surviving widow.

16. The administrators are therefore directed within the next 10 days of the date hereof to clearly indicate to the Court from each house who the surviving sons are; those that are deceased and details of their families if any and to file letters from the daughters indicating their interest if any or renounciation of their interest in the Estate.

Each party to bear his own costs.

DATED and DELIVERED at BUNGOMA this 5th day of October, 2017

ALI-ARONI

JUDGE