[2022] KEHC 14861 (KLR)

In re Estate of Angolo Esevwe alias Angolo Sebwe (Deceased) (Succession Cause 124 of 2021) [2022] KEHC 14861 (KLR) (4 November 2022) (Ruling)

Neutral citation: [2022] KEHC 14861 (KLR)

Republic of Kenya

In the High Court at Vihiga

Succession Cause 124 of 2021

WM Musyoka, J

November 4, 2022

Ruling

1. Am determining a Chamber Summons, dated November 10, 2021, brought at the instance of Harun Angolo, seeking orders that the Land Registrar, Vihiga County, be ordered to place caveats on Kakamega/Buyonga/2850 and 2851, formerly Kakamega /Buyonga/1060; that the status quo pertaining to Kakamega /Buyonga/1060 be maintained; that the subdivision of Kakamega/Buyonga/1060, and the subsequent registrations thereof, be deemed as unlawful, illegal; and that the said Kakamega/Buyonga/1060 do revert to the name of the deceased herein, Angolo Esevwe alias Angolo Sebwe for distribution. I shall refer to Harun Angolo as the applicant.

2. It is averred that the administratrix, Deina Kageha Angoro, had died on September 15, 2021. Prior to her demise, she had been issued with a certificate of confirmation of grant on March 14, 2014, where she was to have life interest over Kakamega/Buyonga/1060, and to hold it in trust for the children or beneficiaries of the deceased. The applicant avers that due to the old age of the administratrix, his sisters took advantage of her and, without his consent, the subject land was subdivided into Kakamega/Buyonga/2050 and Kakamega/Buyonga/2051, thereby disinheriting him, and that he is, therefore, at risk of being evicted from the estate. He argues that the Land Registrar for Vihiga County had illegally subdivided the land in disregard to a court order, and he seeks to have the land reverted back to the original owner for re-distribution.

3. The application was opposed by Rose Minyoso Angoro, vide a replying affidavit sworn on November 10, 2021, and filed on herein on even date. She avers that she had been wrongly joined in the succession cause as she is not the administratrix of the estate of Deina Kageha Angolo, but that she is one of the beneficiaries of the estate. She states that the administratrix’s intention was to subdivide the land into two; give Kakamega/Buyonga/2050 to the applicant and Kakamega/Buyonga/2050 to her daughters, but the applicant refused to cooperate with them. She avers that the applicant, therefore, ought to institute succession proceedings so as to obtain Kakamega/Buyonga/2050, which is the larger portion of the estate. She prays that the application be dismissed with costs as she has been wrongly joined. I shall refer to Rose Minyoso Angoro as the respondent.

4. The applicant filed a supplementary affidavit, dated November 29, 2021, on November 30, 2021, where he avers that it is not true that the administratrix intended to distribute Kakamega/Buyonga/1060 between himself and the other portion to his sisters for if that was the case, the administratrix would have registered the said land directly to his name. He urges the court to allow his application.

5. The court directed, on November 17, 2021, that the said application be disposed of by way of written submissions. The parties have complied with the same, by filing their respective written submissions which I have read through and noted the arguments made. The applicant argues that the life interest and trust that the administratrix held over the land terminated upon her demise. The respondent states that the position taken by the applicant is based on grounds of patriarchal family tree which excludes daughters, whether married or not, from inheriting from their fathers, and that that is why he wanted to get the whole estate to the exclusion to the sisters. She relies on Douglas Njuguna Muigai v John Bosco Maina Kariuki & another [2014] eKLR (Visram, Koome & Otieno Odek, JJA), the effect that in the event of any changes being made to the mode of distribution of the estate, then all beneficiaries should get equal shares, irrespective of gender. She asks the court to dismiss the application as the same is devoid of merit.

6. It is not in dispute that the administratrix died, after the grant made to her had been confirmed. The dispute revolves around a subdivision of the estate asset, Kakamega/Buyonga/1060, which the administratrix did, and the applicant complains that the subdivision was done unfairly and illegally. The subdivisions she created were registered as follows Kakamega/Buyonga/2850 in her name and Kakamega/Buyonga/2851 in the names of Rose Minyoso Angoro, Damaris Muhone Mwandina, Felina Cheredi Agida, Loice Payo Angolo, Sabet Musimbi, Miriam Afandi Angolo and Janet Imali Angori. That would mean one of the subtitles was registered in her name , while the other was registered in the name of the daughters of the deceased. The applicant was not registered as proprietor in any of them. The respondent suggests that the administratrix intended that Kakamega/Buyonga/2850 would be devolved to him.

7. So, was the subdivision of Kakamega/Buyonga/1060 and its registration in the names of the administratrix and her daughters illegal? At confirmation, Kakamega/Buyonga/1060 was devolved to the administratrix to hold, during life interest, in trust for the children of the deceased. That was in keeping with section 35 of the Law of Succession Act. That created a continuing trust. The property was not devolved to her wholly, but in trust. The trust was continuing, in the sense that it was to subsist until her demise, whereupon section 35(5) of the Law of Succession Act would kick in, to have the property devolve equally amongst the children of the deceased, both sons and daughters. Her demise would automatically terminate the life interest. The administratrix died, and, therefore, the continuing trust or life interest has determined, and the property ought to devolve to the children in terms of section 35(5) of the Act.

8. But there is also section 35(2) of the Act, which allows the surviving spouse, during life interest, to exercise the power of appointment, that is by way of making a gift of the property held during life interest to the children. Section 35(3) of the Act allows a child who is unhappy with the way the power of interest is exercised, by the surviving spouse, to move to court, where he or she considers that the power was exercised or withheld unreasonably, asking the court for appointment of his share or to have a variation made of the appointment made. Section 35(4) broadly deals with what the court may take into act in determining whether the exercise of a power of appointment was reasonable or not.

9. The orders made, by Mrima, J, at confirmation of grant, largely encompassed the continuing trust and the power of appointment. The said order, in the ruling of 22nd July 2016, reads as follows:(a)The grant issued on November 25, 2010 to Deina Kageha Angolobe and is hereby confirmed.(b)The deceased’s property known as Kakamega/buyonga/1060 shall vest in Deina Kageha Angoloin her capacity as the Administratrix of the deceased’s estate and who enjoys a life interest on it and who shall so hold it in trust for the children/beneficiaries of the deceased.(c)For avoidance of doubt, the said Deina Kageha Angoloremains at liberty to exercise her power of appointment over the property or upon the consensus of all the beneficiaries to accordingly distribute the same.(d)There shall be no orders as to costs.”

10. The question then is whether the subdivision of Kakamega/Buyonga/1060 into Kakamega/Buyonga/2850 and 2851, and the registration of Kakamega/Buyonga/2851 in the names of the respondent and her sisters, was in exercise of the power of appointment reserved under section 35(2) of the Act? There is nothing on record to explain what the administratrix intended by that action. She is dead, and, therefore, she cannot speak for herself. Although the respondent does not cite section 35(2), she appears to be grounding her case on it, by arguing that the said action was towards exercise of the surviving spouse’s power of appointment. She appointed Kakamega/Buyonga/2851 in favour of the daughters of the deceased, and held on to Kakamega/Buyonga/2850, which she intended to eventually devolve upon the applicant. If that was what the administratrix intended, then the same was lawful, for it was in keeping with section 35(2) of the Act. However, the intentions of the administratrix were not documented, and as she has died, I have no way of knowing what she had in mind. I have, though, no basis at all to hold and find that what she did was illegal, in view of what section 35(2) provides, which was reiterated in the order by Mrima, J. If she was acting within her powers under section 35(2), the remedy open to the applicant is in section 35(3) of the Act. He did not exercise that option, although I do not know whether he was aware of the actions of the administratrix before she died.

11. Be that as it may. Now that the administratrix is dead, what should be done? Since there is no confirmation that the subdivision was intended to be in conformity with section 35(2), I shall reverse it, so that section 35(5) kicks in, whose effect should be that the property, Kakamega/Buyonga/1060, is shared equally amongst all the children of the deceased, that is to say the applicant, the respondent and their sisters, that is to say Damaris Muhone Mwandina, Felina Cheredi Agida, Loice Payo Angolo, Sabet Musimbi, Miriam Afandi Angolo and Janet Imali Angori.

12. For avoidance of doubt, section 35 of the Law of Succession Act provides as follows:“35. Where intestate has left one surviving spouse and child or children(1)Subject to the provisions of section 40, 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 residue of the net intestate estate: Provided that, if the surviving spouse is a widow, that interest shall determine upon her re-marriage to any person.(2)A surviving spouse shall, during the continuation of the life interest provided by subsection (1), have a power of appointment of all or any part of the capital of the net intestate estate by way of gift taking immediate effect among the surviving child or children, but that power shall not be exercised by will nor in such manner as to take effect at any future date.(4)Where an application is made under subsection (3), the court shall have power to award the applicant a share of the capital of the net intestate estate with or without variation of any appointment already made, and in determining whether an order shall be made, and if so, what order, shall have regard to—(a)the nature and amount of the deceased’s property;(b)any past, present or future capital or income from any source of the applicant and of the surviving spouse;(c)the existing and future means and needs of the applicant and the surviving spouse;(d)whether the deceased had made any advancement or other gift to the applicant during his lifetime or by will;(e)the conduct of the applicant in relation to the deceased and to the surviving spouse;(f)the situation and circumstances of any other person who has any vested or contingent interest in the net intestate estate of the deceased or as a beneficiary under his will (if any); and(g)the general circumstances of the case including the surviving spouse’s reasons for withholding or exercising the power in the manner in which he or she did, and any other application made under this section.(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.”

13. I agree with the respondent, that there was no need for her to be made a party to the instant application, for she had not substituted the late administratrix as such, and there is no material suggesting that she was the driver behind the impugned subdivision. As there is no administrator in office, I shall appoint the applicant and the respondent as administrators, to take the place of the dead, administratrix, and to carry into effect the order in paragraph 11 hereabove. A grant of letters of administration intestate shall issue to them, for completion of administration, and a certificate of confirmation of grant in the terms of paragraph 11 above shall also issue.

14. For avoidance of doubt, the application dated November 10, 2021 is disposed of in the following terms:a.That I declare that the grant of letters of administration intestate made on November 15, 2010, and issued on November 25, 2010, to Deina Kageha Angobo, has become useless and inoperative following her death on September 15, 2021, and I hereby revoke it under section 76(e) of the Law of Succession Act;b.That I hereby appoint Harun Magore Angolo and Rose Minyoso Angoro administrators of the estate of the deceased herein, Angolo Esevwe alias Angolo Sebwe, and a grant of letters of administration intestate shall issue to them to complete the administration;c.That Kakamega/Buyonga/1060 shall be shared equally between Harun Magore Angoro, Falina Cheredi, Damaris Muhinja, Sabeti Musimbi, Loyce Dayo, Mirriam Afandi, Janet Imali and Rasoa Minyoso;d.That to facilitate distribution in those terms, I hereby direct the Deputy Registrar to issue a certificate of confirmation of grant in those terms;e.That to further facilitate distribution, I direct the land registrar responsible for Vihiga County, to cancel the subdivisions of Kakamega/Buyonga/1060 into Kakamega/Buyonga/2850 and 2851, and to revert the registration back to the original owner Angolo Esevwe alias Angolo Sebwe for redistribution of the estate in terms of order (c), above;f.That the matter shall mentioned six months hereafter to confirm completion of administration;g.That each party shall bear their own costs, this being a family matter; andh.That any party aggrieved has 28 days leave to move the Court of Appeal appropriately.

15. It is so ordered.

DELIVERED, DATED AND SIGNED IN OPEN COURT AT KAKAMEGA THIS 4th DAY OF November 2022WM MUSYOKAJUDGEMr. Erick Zalo, Court Assistant.Mr. Edwin Lugadiru, instructed by Lugadiru & Co, Advocates for the applicant.Mr. M. Kiveu, Advocate for the respondent.