[2022] KEHC 11955 (KLR)

In re Estate of Andrea Buluma Wangaki (Deceased) (Succession Cause 163 of 2015) [2022] KEHC 11955 (KLR) (13 May 2022) (Ruling)

Neutral citation: [2022] KEHC 11955 (KLR)

Republic of Kenya

In the High Court at Kakamega

Succession Cause 163 of 2015

WM Musyoka, J

May 13, 2022

IN THE MATTER OF THE ESTATE OF ANDREA BULUMA WANGAKI (DECEASED)

Ruling

1. What is for determination is a summons, dated 15th March 2021, which seeks confirmation of the grant herein, made to Peter Stephens Okova, Godfrey Kagia Okova, Hellen Naututu Omoka and Florence Liavali Okova, on 2nd December 2020.

2. The summons is brought at the instance of Peter Okova Stevens, who I suppose is the same person as Peter Stephens Okova, and I shall refer to him hereafter as the applicant. He avers that the deceased had been survived by fourteen children, being Godfrey Kagia Buluma, Irene Makanda, Edwin Talamuti Buluma, Joy Machio Buluma, Stella Nakhungu Buluma, Judith Ekaka Buluma, Violet Owanga Buluma, Paul Wamaya Buluma, Peter Wangaki, Maria Buluma, Jackson Wangaki, Alex Simwenyi and Mary Buluma. Although Janet Buluma and Robai Buluma are put in the same category with the rest it is not specified that they were also daughters of the deceased. It is also averred that the deceased had also been survived by other dependants, identified as nieces, nephews and sisters-in-law and sisters, presumably of the deceased, being Rosemary Mando Okova, Alice Alukwe Okova, Jeremiah Obudo Okova, Morris Okova Stephen, Joy Owano Ingonga, Peter Okova Stevens, Florence Liavali Okova, Peter Okova, Edward Okova, Japheth Musoma Okova, Cyprian Okova, Violet Okova, Mercy Muhadia Okova, Steve Okova Obudo, Belinda Awuor Obudo, Salome Nakhumwa Wangaki and Hellen Naututu Omoka. The asset lined up for distribution Kakamega/Sango Scheme/115, measuring 128. 5 acres. It is proposed that the property be distributed amongst the four administrators, so that Godfrey Kagia Okova takes 32. 125 acres to hold in trust for himself and all the children of Andrea Wangaki Buluma, listed in the affidavit; Hellen Naututu Omoka takes 32. 125 acres to hold in trust for Belinda Awuor Obudo and Salome Nakhumwa Wangaki; Florence Liavali Okova takes 32. 125 acres to hold in trust for himself and the children of Wilson Okova; and Peter Okova Stevens takes 32. 125 acres to hold in trust for himself and all the children of Stephen Wangaki Okova. Attached to the affidavit in support is a consent to distribution, Form 37, duly executed by three individuals out of the thirty-three survivors and dependants listed in the application. The three who have signed are Hellen Naututu Omoka, Florence Liavali Okova and Peter Okova Stevens.

3. The application attracted an affidavit of protest, from Godfrey Kagia Okova, sworn on 7th June 2021. I shall refer to Godfrey Kagia Okova, hereafter, as the protestor. He avers that he does not agree with the proposals made in the application. He asserts that the distribution had not considered the expenses incurred by the family of the late Andrea Wangaki Buluma in settling the dues outstanding on the purchase of the property the subject of the distribution herein. Consequently, he proposes distribution as follows: 56. 375 acres to himself to hold in trust for himself and the other members of the family of Andrea Wangaki Buluma; 20 acres to Hellen Naututu Omoka to hold in trust for Belinda Awuor Obudo and Salome Nakhumwa Wangaki, 20 acres to Florence Liavali Okova to hold in trust for herself and the children of Wilson Okova; and 32. 125 acres to Peter Okova Stevens to hold in trust for himself and the children of Stephen Wangaki Okova.

4. Directions were given on 15th July 2021, for canvasing of the application by way of written submissions. The applicant administrator and the protestor have filed written submissions. The submissions by the applicant are dated 25th October 2021 and were filed herein on even date; while those by the protestor are dated 18th October 2021, and were filed herein on even date.

5. The submissions by the applicant are not really what they should be, written submissions, that is to say arguments founded on the averments made in the application and the affidavit in support. They are in the nature of a fresh affidavit, for they urge the court to distribute the estate in terms of a judgment in Kakamega CMC Miscellaneous Award No. 13 of 1983 and Kakamega HCCA No. 114 of 1985, copies of which are attached to the written submissions. The applicant did not depose to these facts, and did not attach the evidence of the judgments in his application. What the applicant is doing is to use written submissions to introduce new facts and evidence. Written submissions should not be an avenue for introducing new evidence, it should be a forum for articulating arguments based on the facts already placed on record by way of the application and affidavits on record. I am disappointed the applicant had benefit of counsel from an Advocate, and that these new facts and evidence are placed on record through a process filed by an Advocate. Ideally, these are materials that the applicant should have averred to in his application and affidavit in support thereof, and he should have attached those judgments to his affidavit in support of the application.

6. I have perused through the judgments. In the proceedings in Kakamega CMC Miscellaneous Award No. 13 of 1983, the dispute was between the four sons of Peter Wangagi Okova over Kakamega/Sango Scheme/115 measuring 128. 5 acres. There were four plots but they were put together and registered as Kakamega/Sango Scheme/115, and Andrea Buluma was appointed legal representative by the court to manage the plots. There were debts relating to the plots, owed to the Agricultural Finance Corporation (AFC) and the Settlement Fund Trustees (SFT). The dispute before the court was that Andrea Buluma had incurred debts over the land, and was unwilling to share the land with the rest of the sons. The court set out to determine what was owing and how the same was to be repaid. The court found that the AFC loan had been taken by Andrea Buluma and Wilson Ogova Okova. In the end, the court calculated what each of the four sons was to pay to resolve the issue of the outstanding loans, with the AFC loans being paid exclusively by Andrea Buluma and Wilson Ogova Okova, and the interest on the SFT loans being paid by all four sons. The court directed, that after the charges by AFC and SFT were discharged, the property was to be shared out equally between the four sons. Andrea Buluma was dissatisfied with that outcome, and lodged the appeal, in Kakamega HCCA No. 114of 1988, which was dismissed for having been filed out of time.

7. In his written submissions, the protestor concedes that Kakamega/Sango Scheme/115 was registered in the name of his father, the deceased herein, Andrea Buluma Wangaki, in trust for himself and his three brothers, Stephen Okova, Joseph Obudo and Wilson Okova. He asserts that it was the family of the deceased who paid off a debt of Kshs. 500, 000. 00 to ward off disposal of the property by way of auction, and, therefore, it was that family that redeemed the property. The other families did not contribute to the redemption, and did not settle what was due from them thereafter, and, therefore, the family of the deceased was entitled to a larger share of the land. He submits that the proposals by the applicant did not take into account the sum of Kshs. 500, 000. 00. He submits that the estate ought to be distributed as per his proposal. He further submits that Hellen Naututu Omoka could not be trusted to hold the share due to the late Joseph Wekesa Wangagi Obudo, for reasons advanced in the submissions. Curiously, in his affidavit of protest he had no problem with her being trustee for the estate of the late Joseph. I wonder what has happened between when he filed the affidavit of protest and now, to make him change his mind.

8. In my view, the matter if fairly straightforward. There are really two succession processes being undertaken in this cause. Firstly, is with respect to the estate of the late Peter Wangagi Okova, the father of the deceased herein and his brothers, Joseph, Wilson and Stephen. The sons of the late Peter are all deceased. The property in dispute, Kakamega/Sango Scheme/115, was inheritance from the late Peter Wangagi Okova, and was registered in the name of the deceased herein, the late Andrea Wangaki Buluma, to hold in trust for himself and his brothers, Joseph, Wilson and Stephen. Succession to the estate of the late Peter Wangagi Okova was resolved in Kakamega CMC Miscellaneous Award No. 13 of 1983, when the court ruled that Kakamega/Sango Scheme/115 be shared out equally between the four sons of the deceased in that matter. That order was apparently not executed, hence when the deceased herein, the late Andrea Wangaki Buluma, died, Kakamega/Sango Scheme/115 was still in his name, hence the issue of the succession to the estate of his late father, Peter Wangagi Okova, was dragged in. The other succession is to the estate of the late Andrea Wangaki Buluma. He is the registered proprietor of Kakamega/Sango Scheme/115, which his family concedes was so registered in trust for himself and his three brothers, Joseph, Wilson and Stephen. The two deceased persons died at different times. The first died in 1966 and the second in 1987. I shall accordingly deal with the matter of distribution of the two estates at separately.

9. I shall start with that of the father, the late Peter. This one is easier. The matter was before a court of law, a judgment was passed, an appeal was lodged, which was dismissed, which meant that the judgment of the trial court holds sway. I am talking about the decision in Kakamega CMC Miscellaneous Award No. 13 of 1983, delivered on 6th July 1983, where the court ruled that Kakamega/Sango Scheme/115 be shared out equally between the four sons of the late Peter, that is to say Andrea, Joseph, Wilson and Stephen. The late Andrea Wangaki Buluma, the deceased herein, was unhappy with that decision, and he lodged the appeal in Kakamega HCCA No. 114 of 1985, but that appeal was dismissed in a judgment delivered on 19th September 1986, for lacking merit on account of being lodged way out of time. So, as it is, the order that should carry the day is that in the judgment of 6th July 1983, which ordered equal distribution of Kakamega/Sango Scheme/115 between Andrea, Joseph, Wilson and Stephen.

10. The protestor is a son of the late Andrea Wangaki Buluma, and he argues that the estate of the late Peter ought not to be shared out equally between the four sons, because his father, the late Andrea Wangaki Buluma, spent some money to redeem Kakamega/Sango Scheme/115. The amount alleged is Kshs. 500, 000. 00. Firstly, the mere fact that someone has expended funds to redeem estate property does not constitute that person owner of the estate asset. In other words, he does not acquire a right over that property over and above his inheritance. The protestor has not pointed me to any law, whether in statute or case law, to that effect. Secondly, even then, the mere fact that one has spent their own money to redeem an estate asset cannot alter a clear order by the court decreeing how the estate asset should be handled. If the protestor desired that the order of 6th July 1983 be varied or altered, to factor in the expense incurred by his side of the family in the redemption of Kakamega/Sango Scheme/115, then he or they or his side of the family should have moved the court in Kakamega CMC Miscellaneous Award No. 13 of 1983 in that behalf. That never happened, and the order of 6th July 1983 remains intact, and available for execution in the terms that it is couched in. Thirdly, the court in Kakamega CMC Miscellaneous Award No. 13 of 1983 had ordered that the four sons pay certain amounts of money to settle the debts owed to AFC and SFT. If the late Andrea Wangaki Buluma ended up paying those sums of money alone, without contribution from his brothers, as is said above, that did not give him a greater stake in Kakamega/Sango Scheme/115, and what it amounted to was a mere civil debt owed to him as by his brothers. After he completed repaying the debts to AFC and SFT, he should have pursued his brothers to recover the said moneys as a civil debt from them. It is not disclosed when these debts were cleared, and, therefore, when the debt accrued, but the late Andrea Wangaki Buluma died in 1987, and I suppose that the said debt is now stale, and the protestor would have no basis for pursuing it now, for it must have been caught up by the statute of limitation.

11. Ultimately, Kakamega/Sango Scheme/115 shall be shared equally between the four sons of the late Peter as per the orders in Kakamega CMC Miscellaneous Award No. 13 of 1983. All four sons are dead. The four equal shares in Kakamega/Sango Scheme/115 shall devolve upon the estates of the said sons, to be administered and distributed in those estates. The instant cause relates to the estate of the late Andrea Wangaki Buluma, and I shall proceed to give orders on the distribution of the share due to that estate from the estate of the late Peter Wangagi Okova. .

12. The late Andrea Wangaki Buluma is said to have been survived by sixteen individuals, both sons and daughters, being Godfrey Kagia Buluma, Irene Makanda, Janet Kamanda, Edwin Talamuti Buluma, Joy Machio Buluma, Stella Nakhungu Buluma, Judith Ekaka Buluma, Violet Owanga Buluma, Paul Wamaya Buluma, Peter Wangaki, Maria Buluma, Jackson Wangaki, Alex Simwenyi, Mary Buluma, Janet Buluma and Robai Buluma. The deceased herein died in 1987, after the Law of Succession Act, Cap 160, Laws of Kenya, had come into force in 1981. He died intestate, and, therefore, the estate ought to be of distribution under Part V of the Law of Succession Act. He was survived by children only, but no spouse, and, therefore, distribution shall be as per section 38 of the Law of Succession Act, which provides for equal sharing amongst all the children. The Law of Succession Act, and specifically Part V and section 38, talk about children, making no distinction between male and female. Consequently, the share due to the estate of the late Andrea Wangaki Buluma, from Kakamega/Sango Scheme/115, shall be shared equally amongst the sixteen children, whose names I have set out here above.

13. For avoidance of doubt, section 38 of the Law of Succession Act states as follows:“Where intestate has left a surviving child or children but no spouse Where an intestate has left a surviving child or children but no spouse, the net intestate estate shall … devolve upon the surviving child, if there be only one, or be equally divided among the surviving children.”

14. The estates of the other sons of the late Peter Wangaki Okova are not before me. I shall, therefore, not distribute them in this cause, which is in the estate of the late Andrea Wangaki Buluma. What I shall do, instead, is to devolve the share due to them from Kakamega/Sango Scheme/115 to their respective estates, to be distributed in succession causes to be initiated. I understand that for some of those estates succession causes have been initiated, and there are administrators in place. For such, the share devolved to the estate shall be placed before the court seized of that cause for distribution. For those estates where no succession cause has been initiated, the survivors of the deceased person in question shall mount a cause where his share shall be distributed.

15. The final orders are as follows:a.That Kakamega/Sango Scheme/115 shall be shared out equally between the estates of the late Andrea Buluma Wangaki, the late Joseph Wekesa Obudo, the late Stephen Wangaki Okova and the late Wilson Okova Wangaki;b.That the share due to estate of the late Andrea Buluma Wangaki shall be distributed equally amongst his children, namely: Godfrey Kagia Buluma, Irene Makanda, Janet Kamanda, Edwin Talamuti Buluma, Joy Machio Buluma, Stella Nakhungu Buluma, Judith Ekaka Buluma, Violet Owanga Buluma, Paul Wamaya Buluma, Peter Wangaki, Maria Buluma, Jackson Wangaki, Alex Simwenyi, Mary Buluma, Janet Buluma and Robai Buluma;c.That the share due to the estates of the late Joseph Wekesa Obudo, the late Stephen Okova Wangaki and the late Wilson Okova Wangaki shall be distributed in succession causes initiated or to be initiated in their respective names;d.That the grant herein is confirmed and the application herein, dated 15th March 2021, disposed of in those terms;e.That a certificate of confirmation of grant shall issue accordingly;f.That each party shall bear their own costs; andg.That any party aggrieved by the orders made herein has leave of twenty-eight days to move the Court of Appeal appropriately.

DELIVERED, DATED AND SIGNED IN OPEN COURT AT KAKAMEGA THIS 13th DAY OF May 2022W. MUSYOKAJUDGEMr. Erick Zalo, Court Assistant.Mr. Elung’ata, instructed by Elung’ata & Co, Advocates, for the applicant.Godfrey Kagia Okova, protestor, in person.