[2022] KEHC 609 (KLR)

In re Estate of Andrew Lubutse Mwanje alias Lubutse Mwanje (Deceased) (Succession Cause 27 of 2011) [2022] KEHC 609 (KLR) (10 June 2022) (Judgment)

Neutral citation: [2022] KEHC 609 (KLR)

Republic of Kenya

In the High Court at Kakamega

Succession Cause 27 of 2011

WM Musyoka, J

June 10, 2022

Judgment

1. The deceased herein, Andrew Lubutse Mwanje, died on 21st September 1985. According to the Chief of Khayega Location, through a letter dated, 20th December 2010, the deceased was survived by one child, a daughter, named Mary Lubutse Luseno. He died possessed of a property known as Kakamega/Lukose/232. That was the information that was placed before the court for the purpose of representation being made in intestacy to Mary Lubutse Luseno, on 28th March 2011, and a grant issued, dated 12th April 2011. The said grant was presented for confirmation, through an application, dated 22nd September 2011. It was proposed that Kakamega/Lukose/232 wholly be devolved upon Mary Lubutse Luseno and Kakamega/Lukose/238 upon Patrick Weitaba. The application was placed before the Judge on 7th December 2011. The estate was distributed as proposed. A certificate of confirmation was issued on those terms, adted 7th December 2011.

2. The confirmation orders of 7th December 2011 provoked the filing of the summons for revocation of grant dated 9th May 2014, on grounds that the grant was obtained without the consent of all the heirs and beneficiaries. The applicant is at the instance of Joseph Mwanje Andrea. It was averred that the deceased had married two wives. The first house had only one child, Mary Lubutse Luseno; while the second house had five: Joseph Mwanje Andrea, Patrick Weitaba, Bernetta Khasenzia, Julietta Khadioli and Isoyi Lubutse. The deceased was said to have died possessed of Kakamega/Lukose/232 and 238. It is averred that the family resides on Kakamega/Lukose/238, and cultivates Kakamega/Lukose/232. The applicant averred that the deceased had showed him where to put up a house on Kakamega/Lukose/238, which he did and lived there with his family. He averred that the two sons were to share Kakamega/Lukose/238, while cultivating on Kakamega/Lukose/238. He avers that Mary Lubutse Luseno initiated the succession cause without the consent and involvement of the family, despite their having been an agreement on how to proceed. He stated that he had leant that she had sold a portion of Kakamega/Lukose/232, to Gulela Ayuma Masheti. He also contested the distribution of the estate, as disinheriting some of the beneficiaries.

3. The revocation application was unopposed, and was disposed of on 8th November 2016, after the court heard the applicant orally. The grant of 12th April 2011 was revoked; the confirmation orders of 7th December 2011 were set aside, and the certificate of confirmation of grant, made on the basis of those orders, was cancelled; Mary Lubutse Luseno, Joseph Mwanje and Patrick Weitaba Luvutse were appointed administrators and it was directed that a new grant be made to them; and finally that the new administrators were directed to file a summons for confirmation of grant within thirty days.

4. The summons for confirmation of grant, was filed on 1st October 2019, dated 27th September 2019, by Joseph Mwanje Andrea, who I shall to hereafter as the applicant. He stated that the deceased had married two wives. The first wife had one child, Mary Lubutse Luseno; the second wife had five children, Joseph Mwanje Andrea, Patrick Weitaba, Bernetta Khasenzia, Julietta Khadioli and Isoyi Lubutse. He died possessed of Kakamega/Lukose/232 and 238. He avers that the family had agreed to dispose of a portion of Kakamega/Lukose/232, to Gulela Ayuma Masheti, to raise money to finance the succession process and meet other family needs, and that the buyer had taken possession since 2004. He avers that the entire Kakamega/Lukose/232 be devolved upon the said Gulela Ayuma Masheti, as the proceeds of sale had benefitted all family members. He proposes that Kakamega/Lukose/238, measuring 2. 5 acres be shared equally amongst the sons, after giving 0. 5 acre to Mary Lubutse Luseno. He avers that the daughters in the second house had shown no interest in the estate, and were comfortable in their marriages. He has attached a copy of the sale agreement for Kakamega/Lukose/232, dated 24th February 2004. The seller is indicated as Diphina Khaveza Lubutse. The sale was witnessed by Joseph Mwanje Andrea, Amukayia Witaba Lubutse, among others. .

5. Mary Lubutse Luseno filed a response to the confirmation application, by an affidavit sworn on 23rd November 2019. She avers that one of her half-sisters, Bernetta Khasenzia, was dead. She states that the deceased had bequeathed Kakamega/Lukose/232 to the first house, and Kakamega/Lukose/238 to the second house. She avers that the grant made to her had not been revoked, and had in fact been confirmed. She avers that the whole family knew about the initiation of the succession cause, which she said was conducted by her, for the first house, and Patrick Weitaba for the second house. She avers that she was registered as proprietor of Kakamega/Lukose/232 for the first house, while Patrick Wetaba was registered as proprietor for Kakamega/Lukose/238 for the second house. She expresses shock that the whole of Kakamega/Lukose/232, the whole of her inheritance, had allegedly been sold to Gulela Ayuma Masheti, and that she was not privy to the said sale. She avers that the distribution proposed was unacceptable. She asserts that all the children are entitled equally to a share in the property.

6. There is an affidavit by Amukayia Witaba Luvutse, sworn on 21st September 2020. He repeats the averments by the applicant and Mary Lubutse Luseno, regarding the members of the family of the deceased, and the assets. He asserts that the deceased had shared out the assets, so that Kakamega/Lukose/232 was for the first house, and Kakamega/Lukose/238 for the second house. He avers that he lived on Kakamega/Lukose/238, while the applicant had relocated to Webuye after he had sold part of the estate. He said that his uterine sisters were married, but Mary Lubutse Luseno was not. She had been chased out of her rightful inheritance, Kakamega/Lukose/232, and lived in town. He said he was not aware of who had bought Kakamega/Lukose/232, but he knew that a stranger was tilling the land.

7. The application was canvassed orally. Mary Luvutse Luseno was the first on the witness stand. She largely repeated what she had averred in her affidavit. She stated that the deceased had not sold any of his land. She said she did not know Gulela Ayuma Masheti, and was not aware that he had bought the whole of Kakamega/Lukose/232. He said that he did not agree to the proposal that she should only get 0. 5 acre in Kakamega/Lukose/238. She asserted that she wanted to get Kakamega/Lukose/232 which belonged to her mother. She denied being party to the alleged sale of Kakamega/Lukose/232. She said that she had not been given a share of the sale proceeds from Kakamega/Lukose/232. She said that the deceased gave her Kakamega/Lukose/232 a long time ago, as her mother was not available to farm the land. She said that the deceased lived on Kakamega/Lukose/238, and that she had lived there also. She said that the younger wife is given the land with graves, in this case Kakamega/Lukose/238. She said she was born alone and wanted to be given a parcel of land alone, but would take one of her nephews and live with her. She denied selling the land.

8. Amukayia Witaba Luvutse testified next. He said that he was also known as Patrick Witaba Luvutse. He stated that Kakamega/Lukose/232 was for Mary Luvutse Luseno. He said that the applicant had sold the land, but the sale proceeds did not benefit the family. He said that the family did not authorize the applicant to sell the land to raise money for administration expenses. He said that the second wife had left the home of the deceased by the time he died, and was buried at her parents’ home. He said that her house was on Kakamega/Lukose/232 but it fell down because of disuse. He said dowry had not been paid for her. He said that he was involved in the sale of Kakamega/Lukose/232. He said that it happened while his mother was alive. He said that it was not an agreement to sell land, but a money lending agreement. He said he was forced to sign the agreement. He said the agreement was false. He said that he did not know whether his uterine sisters had renounced their share. He said that he did not know that daughters were entitled to inherit.

9. The applicant testified next. He said that they gave Kakamega/Lukose/232 to Gulela Ayuma Masheti, and that the family was not using the land. He stated that Kakamega/Lukose/232 should go to Gulela Ayuma Masheti, while Kakamega/Lukose/238 should be shared between him, Patrick and Mary. He said that his uterine sisters got married, and they lived happily wherever they were, and were not claiming a share in the estate. He stated that he did not chase Mary away, instead she had left to go and live with her maternal relatives. He said that the deceased did not distribute his property before he died. He said that it was his mother who sold Kakamega/Lukose/232, she had not obtained representation, and the deceased had died. She asserted that she sold Kakamega/Lukose/232 because it was the property of her husband. He said that he lived in Webuye.

10. At the close of the oral hearings, the parties filed written submissions, which I have read, and taken note of the arguments made.

11. I note that the daughters in the second house of the deceased have been completely left out. They are all married. It would appear that the three administrators assume that married daughters are not entitled to a share of the estate of their late father, and that the property available should devolve, exclusively to themselves. That would be a complete misunderstanding or misapprehension of the law, as it currently stands on inheritance by women. The deceased herein died on 21st September 1985, after the Law of Succession Act, cap 160, Laws of Kenya, had come into force in 1981. He died intestate, and therefore, his estate is for distribution in terms of Part V of the Law of Succession Act. Sections 32 and 33 of the Law of Succession Act allow some room for application of customary law, to intestate estates of persons dying after 1981, which would have allowed some level of discrimination against the married daughters. Unfortunately, that window is very narrow. It covers only a very small section of Kenya, which excludes Kakamega County. Consequently, the intestate estates of persons dying and owning property within Kakamega County is wholly subject to Part V of the Law of Succession Act. The shares due to children of intestates, under sections 35 and 38 of the Law of Succession Act, is to the children of the deceased, not exclusively to the sons and unmarried daughters of the deceased. The reference to children, in those provisions, covers all the children of the deceased, irrespective of their gender. No distinction is made between male and female children, whether married or unmarried. It presupposes equal treatment of such children. The deceased herein had two sons and four daughters. These were the children of the deceased for the purposes of succession to his estate. Under sections 35 and 38 of the Law of Succession Act, they should take equally.

12. What I have said above regarding the provisions of sections 35 and 38 of the Law of Succession Act, should be read together with the provisions of the Constitution of Kenya, 2010. Article 27 provides for equality of men and women, and provides for freedom from discrimination against women in all spheres of life. It asserts, at Sub-Article (1), that every person is equal before the law and has the right to equal protection and equal benefit of the law, Sub-Article (3) reinforces it, by stating that women and men have the right to equal treatment, including the right to equal opportunities in political, economic, cultural and social spheres of life. The constitutional principles enshrine the policy and law stated in the United Nations Convention on the Elimination of All Forms of Discrimination Against Women(CEDAW), to which Kenya is a signatory, and CEDAW has the force of law in Kenya by dint of Article 2(5)(6) of the Constitution. Women are to be treated equally with men, and without any form of discrimination, based on their gender, is the bottom-line. The three married daughters of the deceased are women, who should have the benefit of Article 27 of the Constitution and the principles spelt out in CEDAW.

13. For avoidance of doubt, sections 35 and 38 say:“35 Where intestate has left one surviving spouse and child or children1. … where an intestate has left one surviving spouse and a child or children, the surviving spouse shall be entitled to-(a)The personal and household effects of the deceased absolutely; and(b)a life interest in the whole of the residue of the net intestate estate2. …3. …4. …5. … The whole residue of the net intestate estate shall, on the death, or, in the case of a widow, remarriage, of the surviving spouse, devolve upon the surviving child, if there be only one, or be equally divided among the surviving children.36 …37 …38 Where intestate has left a surviving child or children but no spouseWhere 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. In this case, the deceased had been survived by a spouse, and children. She is since dead. If distribution were done during her lifetime, section 35(1) would have applied, so that she would be entitled to life interest over the assets. Her death has brought the property under the realm of sections 35(5) and 38, where only the children are available at the distribution, in which case they all take equally, irrespective of gender. There is a notion in the minds of Patrick and Joseph, that even if distribution was to be confined to the two sons and the unmarried daughter, Mary, she ,Mary, would only be entitled to a fraction of what the sons share between themselves. That should be disabused. She is entitled to equal share.

15. The deceased, of course, died a polygamist and division of his property has to be in line with what the law requires. The relevant law is in section 40 of the Law of Succession Act. He had married two wives during his lifetime. His estate, therefore, should be for distribution in accordance with section 40 of the Law of Succession Act, which provides for how the estate of a polygamist is to be handled. In the first place, the estate is divided among the houses according to the number of children in each house, with the surviving spouse as an additional unit. After that the shares allocated to each house is distributed amongst the members of each house in terms of sections 35 to 38, depending on the composition of each house.

16. For avoidance of doubt, section 40 of the Law of Succession Act states as follows:“Where intestate polygamous1. 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 in the personal and household effects and the residue of the intestate estate within each house shall then be in accordance with the russet out in sections 35 to 38. ”

17. The first house has one child, so it shall get one unit, the second house has five children, and they shall get five units. The ratio works to at 1:5. Kakamega/Lukose/232 and 238 shall be split into 6 units each, and thereafter shared out between the six children of the deceased in the ratio of 1:5. It would also be practicable to distribute the estate strictly in terms of section 38, so that each of the two assets is distributed equally between the six children. As the married daughters were not brought on board, not much has been disclosed about them, in terms of who among them is alive and who has passed on, and whether those who have passed on, if any, were survived by children. I shall not postpone confirmation of the grant in this very old cause, to get those disclosures. Instead, I shall direct that the share due to any child of the deceased, who has since died, shall devolve to their estate, to be distributed in separate succession proceedings, to be initiated under their names.

18. The law allows me to devolve the shares to the married daughters, even if they have not come forward to stake their claim or participate in the proceedings. A beneficiary does not get their share because they have come forward to claim it. It is theirs by law. A right granted by statute or the Constitution does not have to be demanded or claimed. It is given automatically. The law requires that they be involved in the process by the administrators, that is what section 51 of the Law of Succession Act, and Rules 7, 17, 40 and 41 of the Probate and Administration Rules are all about. Involve everyone, who is beneficially entitled, so that they get their share. Administrators who not involve everyone in the process or who exclude a beneficiary from the process would, in fact, be failing in their duties, and exposing their grants to revocation, under section 76(a) (b) of the Law of Succession Act. They cannot get away with saying that the persons that they have not included in the process are not interested in getting their shares, and are contented wherever they are. That is not the law. They have to be involved. If they do not wish to take a share in the estate, that is their call, it should not be that of the administrators to say that since they have not participated in the proceedings then they should be excluded. They can only forgo their share in writing by way of renouncing or waiving it, or by attending court in person and stating to the Judge or Magistrate that they are not interested in taking a share. I have it in the authority of Christine Wangari Chege Gichigi v Elizabeth Wanjira Evans & 11 others[2014] eKLR and In re Estate of Joyce Kanjiru Njiru (Deceased)[2017] eKLR (Gitari J), that the failure by daughters of the deceased to participate actively in the litigation is not a disentitling consideration, in the absence of renunciation by them. In both cases, the court went ahead and allocated daughters, who had been excluded from the proposed distribution, in the confirmation application, their share of the estate.

19. I have not allocated anything to the alleged buyer of Kakamega/Lukose/232. The deceased died in 1985. That sale happened in 2004. This cause was initiated in 2011, and the grant was made in that year. 2011 is when Kakamega/Lukose/232 vested in an administrator. The said buyer is not a creditor of the estate, and is not entitled as such to a share in the estate. A creditor of the estate is he that dealt with the deceased, and the deceased died leaving a debt owing to that person. It would also be a person who lawfully dealt with the estate, meaning the administrators, in the assets of the estate were vested, by dint of section 79. In this case, the alleged buyer did not transact with the deceased, and, therefore, there was no debt inherited from the deceased accruing to him or her. He did not deal with the administrators of the estate, for no administrators had been appointed in 2004. The persons who transacted with him or her had no authority or power to sell estate assets or the property of a dead person before a grant had been made. Section 79 vests an intestate estate in the administrators. Section 80(2) states that a grant of letters of administration intestate is only effective from the date it is made. Section 82 grants power to administrators to sell or convert estate assets, and where such property is immovable it is not to be sold before the grant is confirmed. Section 45 makes it a crime to handle estate assets without a grant. The totality of all these provisions is that any transaction that was entered into by anyone to sell estate assets in 2004, when the deceased was dead and representation to his estate had not been granted, was null and void, and as dead as a dodo. It conferred no rights whatsoever on anyone. The dealing, in fact, was tainted with criminality, by virtue of section 45, for it was intermeddling with the estate. A transaction in furtherance of a criminal enterprise cannot possibly hold. The buyer can only look up to whoever purported to sell them the land for a share from his share after the grant herein is confirmed, or, otherwise a refund of the sale price from them.

20. I was told that the the sale proceeds were plied to meet administration expenses. Firstly, no administration was happening in 2004 when the transaction happened, and no steps were taken at all by those involved in the sale, with respect to administration until ten years later, 2014, when they filed the revocation application dated 9th May 2014. They were not the administrators, and there was no justification for them to sell immovable property of the estate. I emphasize section 82 of the Law of Succession Act, that an asset of an intestate could only be sold after the grant had been confirmed. The issue of confirmation could not arise in 2004, as no one had been appointed administrator by then. In any event, no accounts have been rendered with respect to the said sale to demonstrate that the funds were utilized in the administration of the estate.

21. Secondly, I was told that the property was sold by the then surviving widow of the deceased, who was selling the estate of her late husband. No law was cited, to effect that the assets of a dead husband are vested automatically in their surviving widows, and as such a widow does not have to take out letters of administration intestate, to be clothed with authority to sell or handle such assets. There is no such law. A surviving spouse or child of a deceased person is not in a privileged position, which would enable them to handle the intestate estate of their late husband or father without first of all obtaining representation. A surviving spouse or child of the deceased must obtain representation first, otherwise, if they handle estate assets, they would be guilty, by virtue of section 45, of the offence of intermeddling with the estate of a dead person. Whatever was done in 2004, regarding Kakamega/Lukose/232, amounted to intermeddling with the estate of a dead person. There was no authority to sell. The transaction was unlawful, and conferred no rights whatsoever on the alleged buyer.

22. The orders that I feel disposed to make are as follows:a.That I hereby confirm of the grant made herein on 8th November 2016, so that the estate shall be distributed according paragraph17 of this judgment, by the administrators appointed under that grant, who I hereby confirm;b.That a certificate of confirmation of grant shall issue to them accordingly;c.That the matter shall be mentioned after six months, to confirm whether transmission will have been done, according to the confirmation orders made here above, and whether administration will have been completed, so as to close the file;d.That each party shall bear their own costs; ande.That any party aggrieved by these orders has leave of twenty-eight days to move the Court of Appeal, appropriately.

23. It is so ordered.

DELIVERED, DATED AND SIGNED IN OPEN COURT AT KAKAMEGA THIS 10TH DAY OF JUNE 2022WM MUSYOKAJUDGEMr. Erick Zalo, Court Assistant.Mr. Amasakha, instructed by Amasakha & Company, Advocates for the applicant.Ms. Wilunda, instructed by EA Wilunda & Company, Advocates for the protestors.