[2022] KEHC 11391 (KLR)

In re Estate of Benjamin Odunga Otieno (Deceased) (Succession Cause 120 of 2001) [2022] KEHC 11391 (KLR) (10 June 2022) (Judgment)

Neutral citation: [2022] KEHC 11391 (KLR)

Republic of Kenya

In the High Court at Kakamega

Succession Cause 120 of 2001

WM Musyoka, J

June 10, 2022

IN THE MATTER OF THE ESTATE OF BENJAMIN ODUNGA OTIENO (DECEASED)

Judgment

1. The application that I am called upon to decide is dated December 10, 2009, which principally seeks confirmation of the grant herein. It is brought at the instance of John Rodgers Midega, the administrator. In the affidavit sworn, in support of the application, on December 10, 2001, the administrator identifies the survivors of the deceased to be himself, Samson Okumu, Isaak Otieno, Daniel Akello, Eudia Atieno Adhiambo, Adda Adhiambo and Indongole. He has not identified the assets of the estate, but he proposes distribution as follows: himself 2. 756 hectares, the estate of the late Samson Okumu 2. 276 hectares, Isaak Otieno 1. 526 hectares, Daniel Akello 1. 666 hectares, Eudia Ateino Adhiambo 0. 088 hectare and Adda Adhiambo 0. 083 hectare.

2. The application provoked affidavits of protests from Mariana Ogodha, Daniel Okello Odunga, Isaac Otieno Odunga and Irene Okumu Atieno, both sworn on April 20, 2010. They all make similar proposals on distribution, as follows: Butsotso/Shikoti/90XX to John Rodgers Midega 0. 55 hectare, Irene Okumu Atieno (Samson Okumu, (deceased) 0. 50 hectare, Isaac Otieno 0. 45 hectare, Daniel Akello 0. 45 hectare, Endia Atieno Adhiambo 0. 05 hectare, Adda Adhiambo Indoyole 0. 05 hectare, Lorna Atieno Omuka 0. 05 hectare and Mariana Ogodha 0. 25 hectare; and North Sakwa/Maranda/1XX to John Rodgers Midega 1. 25 hectare, Irene Okumu Atieno (Samson Okumu , (deceased) 1. 25 hectare, Isaac Otieno 1. 25 hectare, Daniel Akello 1. 25 hectare, and 0. 4 hectare to be shared equally by Endia Atieno Adhiambo, Adda Adhiambo Indoyole and Lorna Atieno Omuka. Additionally, Mariana Ogodha has averred that she has lived on the estate land for over forty (40) years and that the deceased had gifted to her a portion measuring 0. 25 hectare. She complains that the deceased had left her and his sister, Lorna Atieno Omuka out of the proposed distribution. On their part, Daniel Okello Odunga and Isaac Otieno Odunga have averred to be sons of the deceased, and that the proceeds of sale from North Sakwa/Maranda/1XX should be determined by the court, and accuse the administrator of having left out some beneficiaries from the distribution, being Lorna Atieno Omuka and Mariana Ogodha. Irene Okumu Atieno has similarly deposed that the administrator had left out Lorna Atieno Omuka and Mariana Ogodha from the proposals on distribution, adding that she was a widow of the late Samson Okumu.

3. The administrator responded to those affidavits of protest, by his affidavit, sworn on April 28, 2010. He avers that he did not know of Irene Okumu Atieno as a widow of the deceased, adding that he was aware only of Herine Atieno Okumu, who was purporting to be a widow, but had not taken out letters in respect of the said estate. He accuses her and other of intermeddling with the estate of the late Samson Okumu. He asserts that he gets a larger share of the land because of the graveyard where the deceased and others were buried, and a portion that had been gifted to him by the deceased, where he had put up rental houses. He further states that his sister, Lorna Atieno Omuga had not expressed any interest in the estate. Regarding Isaac Otieno, he asserts that he was born outside wedlock, and the deceased had never treated him as his son, and that he had been given land by his biological father, Agutu. He asserts that he was ready for a deoxyribonucleic acid (DNA) test on that. On Daniel Akelo, he says that his mother abandoned him and he was raised by the administrator’s mother. He asserts that Mariana Ogudha was not related to the deceased, and was not entitled to anything from the estate, adding that she stayed on the estate on the basis of a licence that the deceased had given to her husband. He accuses the protestors of not contributing to the administration of the estate. He states that the land sold to cater for the educational needs of Isaak Otieno and Daniel Akelo should be taken into account, or otherwise they should surrender the land.

4. Daniel Okello Odunga swore another affidavit of protest, without withdrawing the earlier one, principally repeating the averments in his earlier affidavit of protest of April 20, 2010, but revising the distribution proposed, ostensibly to factor in some buyers of portions of the land. For Butsotso/Shikoti/90XX he proposes as follows: Butsotso/Shikoti/90XX to John Rodgers Midega 0. 50 hectare, Irene Okumu Atieno (Samson Okumu (deceased)) 0. 40 hectare, Isaac Otieno 0. 30 hectare, Daniel Akello 0. 30 hectare, Endia Atieno Adhiambo 0. 05 hectare, Adda Adhiambo Indoyole 0. 05 hectare, Lorna Atieno Omuka 0. 05 hectare and Mariana Ogodha 0. 25 hectare, and 0. 10 hectare to be shared between Gabriel Osundwa, Carolyne Achieng Ogombe and Vincent Olumbe. The proposals on North Sakwa/Maranda/1XX remain the same.

5. The administrator, John Rodgers Midega, passed away on September 2, 2010, and was substituted as administrator by Eudia Adhiambo and Lilian Adhiambo Indongole alias Adda Adhiambo Indongole, who I shall refer hereto as the administratrices. Lucrezia Wawira Midega and Emerald Wanjiru Midega were appointed administratrices of the estate of John Rodgers Midega, in Kakamega HCSC No 113 of 2011, on September 2, 2010, and a grant was issued to them, dated July 21, 2011.

6. Following further directions given on December 9, 2014, for filing of further affidavits, if the parties so wished, on distribution of the estate, several parties responded to that position by filing their respective affidavits. One was filed by Isaac Otieno Odunga, on February 9, 2015. He avers that the family of the late John Rodgers Midega should get a larger share as he had been the eldest son and administrator of the estate, but should not claim a vast estate as there were other sons of the deceased. It is stated that the daughters of the deceased were married and settled elsewhere and have been provided for. It is also proposed that the purchasers be provided for. It is proposed that Butsotso/Shikoti/9088 be distributed as follows: to John Rodgers Midega 0. 50 hectare, Irene Atieno 0. 40 hectare, Isaac Otieno 0. 40 hectare, Daniel Akello 0. 35 hectare, Eudia Atieno 0. 05 hectare, Adda Indongole 0. 05 hectare, Lorna Atieno 0. 05 hectare, Mariana Ogodha 0. 25 hectare, Caroline Ogombe 0. 05 hectare, Paul Theuri Mwaniki 0. 05 hectare, Japheth Oyoko Ingati 0. 05 hectare and Gabriel Ekaya Osundwa 0. 10 hectare. The proposals on North Sakwa/Maranda/114 remain the same as proposed earlier by the deponent.

7. The other proposal is by Lucrezia Wawira Midega, as administratrix of the estate of John Rodgers Midega. She avers that as at the date of the death of the deceased, the property had been settled on the ground by the survivors, with clear demarcations and developments. She avers that her late husband had settled on and developed a portion of Butsotso/Shikoti/90XX. In the end she purposes distribution as follows: Butsotso/Shikoti/90XX to John Rodgers Midega 1. 192 hectare, estate of Samson Okumu 0. 626 hectare, Daniel Akelo 0. 316 hectare, Eudia Atieno Adhiambo 0. 0880 hectare, Adda Adhiambo Indongole 0. 0830 hectare Caroline Olumbe 0. 0550 hectare; and North Sakwa/Maranda/1XX to John Rodgers Midega 2. 20 hectare, the estate of Samson Okumu 1. 80 hectare and Daniel Akelo 1. 40 hectare. She avers that Paul Theuri Mwaniki, Japheth Oyoko Ingati and Gabriel Ekaya Osundwa had no claim to the estate and were being sneaked into the matter by the other beneficiaries for selfish gain. She states that the estate of the late John Rodgers Midega should get a larger share of Butsotso/Shikoti/9088 because of the graveyard being 0. 25 hectare, 0. 131 hectare granted to him by the deceased and as compensation for having been the eldest son. She asserts that the purchasers who bought portions of the land from the children of the deceased should look up to those who sold the land to them.

8. The administratrices and the protestors have filed written submissions. The written submissions by the administratrices are dated September 14, 2020, while those by the protestors are dated September 23, 2020. I note that the said submissions are not in line with the affidavits placed on record by the administratrices and their predecessor, the late administrator. It is proposed that Butsotso/Shikoti/90XX, which measures 2. 36 hectares be distributed as follows: to the estate of the John Rodgers Midega 0. 869 hectare, to the estate of the late Samson Okumu 0. 4104 hectare, Isaac Otieno 0. 4104 hectare, Daniel Akelo 0. 4160 hectare, Eudia Atieno Adhiambo 0. 124 hectare and Adda Adhiambo Indongole 0. 124 hectare; while North Sakwa Maranda/114 should be shared equally between the estate of the late John Rodgers Midega, the estate of the late Samson Okumu, Isaac Otieno, Daniel Akelo, Eudia Atieno Adhiambo and Adda Adhiambo Indongole at 0. 9 hectare each. It is submitted by the adminstratrices that they had allocated the estate of the late John Rodgers Midega a larger share in the estate as part of his land covered the family graveyard, the original family homestead and access roads, and that the estate had been involved in multiple litigation with third parties, and that the cost of the litigation borne wholly by the late administrator. The protestors submit that the estate should be distributed along the lines of the proposals made in the affidavit of Isaac Otieno Odunga of February 9, 2015.

9. The matter was referred to mediation, on an order by Farah Amin J, of February 2, 2021. The parties met and a document, dated June 22, 2021, was placed before me for adoption. I declined to adopt it as a settlement in the matter, as it was not signed by some of the persons who were said to have participated in the mediation. Secondly there was no concurrence on many issues, such as whether Mariana Orwa Edward was a beneficiary of the estate.

10. I find considerable difficulty in determining the issues in controversy in this matter, without the benefit of oral evidence. I am of the view that some of the issues in controversy would have been better thrashed out had the matter gone for viva voce hearing, instead of the same being determined on the basis of affidavits and written submissions. I did not handle the matter from the beginning, as it was handled by my predecessors, and I only came in at the tail end, to write the ruling based on the directions that had earlier been given by my predecessors. Be that as it may. This is an old matter. I shall not delay it further by insisting on an oral hearing. I shall determine it based on the material before me.

11. According to the proviso to section 71(2) of the Law of Succession Act, cap 160, Laws of Kenya, and rule 40(4) of the Probate and Administration Rules, the duty of the court is to ascertain the beneficiaries of the estate and the shares due to those ascertained beneficiaries. The shares are of the assets of the estate that are available for distribution, which would mean that the court has to ascertain the assets that are available for distribution. Distribution is about the assets, and one cannot talk of shares without reference to the assets. For avoidance of doubt, the proviso to section 71(2) of the Law of Succession Act states as follows:“Provided that, in cases of intestacy, the grant of letters of administration shall not be confirmed until the court is satisfied as to the respective identities and shares of all persons beneficially entitled; and when confirmed the grant shall specify all such persons and their respective shares.”While rule 40(4) provides:“Where the deceased has died wholly or partially intestate the applicant shall satisfy the court that the identification and shares of all the prisons beneficially entitled to the estate have been ascertained and determined.”

12. These proceedings relate to distribution of the intestate estate of the deceased herein. He died in 2001, long after the Law of Succession Act had come into force in 1981. By virtue of section 2(1) of the Law of Succession Act, his estate fell for distribution in terms of part v of the Law of Succession Act, that is to say sections 35 to 40 of the Act. The law governing applications for confirmation of grant is section 71 of the Law of Succession Act and rules 40 and 41 of the Probate and Administration Rules. The proviso to section 71, as read together with rule 40(4), is to effect that the administrator, applying for distribution, must satisfy the court that they have properly ascertained the persons beneficially entitled to a share in the estate and have properly ascertained the shares due to such beneficiaries. The effect of it is that the court then incurs a duty to be satisfied, before it confirms the grant, that the administrator asking for confirmation has properly ascertained the persons beneficially entitled to a share in the estate and the shares due to such beneficiaries.

13. The starting point is with the persons beneficially entitled to a share in the estate. The persons beneficially entitled, in the context of intestate succession, are in two categories. The first is that of the immediate surviving members of the family of the deceased, often referred to as survivors. These are set out in sections 35 to 39, in part v, of the Law of Succession Act. These include the surviving spouse, children, parents, siblings, grandchildren, and so forth, of the deceased. The court should be satisfied that these have been ascertained properly, in terms of the administrator properly identifying the persons who have survived the deceased. The second category is that of creditors, mentioned in sections 39 and 66 of the Law of Succession Act, whether they take the form or character of pure creditors or buyers of the assets of the estate from the deceased. They could be described as liabilities or purchasers also. The general term for both groups is beneficiaries, that is persons who have a beneficial interest in the estate. The beneficial interest of the surviving family members arises naturally from their filial relationship with the deceased, while that of creditors or liabilities has something to do with the transactions that they had had with the deceased. For the first group, where there are doubts, proof that they were members of the family of the deceased would suffice. For the second group, in case of a contest, proof of the transactions they had with the deceased would suffice. In allocating shares, what is available for distribution is the net intestate estate, and it would mean that the liabilities and creditors have to be settled first, and the surviving members shall then share the net intestate estate thereafter, in the manner set out in sections 35, 36, 38 and 39 of the Law of Succession Act.

14. The surviving widow has or widows have prior right over the children, so I shall start with considering whether the widow or widows of the deceased have been properly ascertained. From the material placed on record it would appear that the deceased was not survived by a spouse. So I shall take it that there is no surviving spouse.

15. The next category of survivors to be ascertained would be the surviving children of the deceased, and if any of the children be dead, the ascertainment of the children of the dead children of the deceased. Both sides have not done a good job of making disclosure as to who the survivors of the deceased are. Distribution of an intestate estate, in accordance with the provisions of the Law of Succession Act, is to the family members of the deceased. These are the immediate survivors. According to part v of the Law of Succession Act, these are, in order of priority, surviving spouse or spouses, surviving children, surviving parents, surviving siblings and any children of the siblings of the deceased who are dead, and other surviving relatives up to the sixth degree of consanguinity. The surviving spouse and surviving children have first priority, and take to the exclusion of any other surviving relatives. Distribution under sections 35, 36, 38 and 39 is to these survivors, according to their relationship with the deceased. It is imperative, therefore, that the parties disclose the survivors in terms of how they related to the deceased, whether as spouses, children, parents or siblings. It is not enough to just through a list of names before the court and expect the court to work out the relationship between the individuals named and the deceased. The Judge or Magistrate handling the matter does not live in the community from where the deceased hailed, and, therefore, it should not be expected that he or she would know how the individuals named related to the deceased; and even if he or she knew the parties privately, the court ought to be blind to that, for the case belongs to the parties, and it is their duty to prosecute it by placing proper and full facts before the court. The system of justice in Kenya is adversarial, not prosecutorial, it is up to the parties to place all the relevant facts before the court, and it is not the responsibility of the court to conduct an independent inquiry into these facts. The court can only do justice if proper and full facts are disclosed.

16. Neither the administratrices nor the protestors made any effort to disclose to the court who the survivors of the deceased were. They simply placed before me a list of names of individuals, who were said to be survivors of the deceased. It was not disclosed to me whether they were spouses or children or parents or siblings or grandchildren of the deceased. I was left to glean, from the various affidavits who these people were to the deceased. From the filings it would appear that John Rodgers Midega, Samson Okumu, Isaac Otieno and Daniel Okello are sons of the deceased. Eudia Atieno Odhiambo and Adda Adhiambo Indongole appear to be daughters. It emerged that John Rodgers Midega and Samson Okumu have died, and were survived by families. I shall, therefore, take it that the children of the deceased, for the purpose of distribution, are John Rodgers Midega, Samson Okumu, Isaac Otieno, Daniel Okello, Eudia Atieno Odhiambo and Adda Adhiambo Indongole.

17. Other individuals were also mentioned as beneficiaries. One of them is Mariana Ogodha also known as Mariana Orwa Edward. The protestors are the ones who prop her up as a beneficiary. The original administrator and his family do not recognize her as a beneficiary. She is not a member of the family of the deceased, but is said to be in occupation of the land. She claims it was gifted to her by the deceased, while the original administrator argued that she was a mere licencee, whose late husband had been permitted to squat on the land by the deceased, and that that licence had since expired. The status of Mariana Ogodha, would have, perhaps, been properly handled if there had been a viva voce hearing, for she would have been subjected to cross-examination on the circumstances of how she came to be in possession, and for the court to get a sense of the nature of her interest in the estate asset. The others are said to purchasers of portions of the land. It is not clear from whom they bought the land, for no documents have been placed before me, but it is clear that none of them dealt with the deceased.

18. There is no dispute on what is available for distribution, and that is Butsotso/Shikoti/90XX and North Sakwa/Maranda/1XX.

19. The proviso to section 71(2) of the Law of Succession Act and rule 40(4) of the Probate and Administration Rules deal with ascertainment of the persons beneficially entitled as well as their shares. Both sides have made proposals on distribution of the assets that they have identified as available for that purpose, to the individuals that they claim are beneficially entitled to a share in the estate. From the proposals, it is patently clear to me that the parties are not settled in their minds on how the estate ought to be distributed, for their proposals kept mutating. The applicants, that is to say the original administrator and the administratrices, have placed before me three different proposals. The protestors have presented to me up to four different proposals, and the estate of the late John Rodgers Midega has also come up with its own proposals, which do not agree with those made by the other parties. There is, therefore, no agreement at all on how the estate ought to be distributed. Where the parties are unable to agree on a common mode of distribution, the court has to distribute the estate strictly on the basis of the provisions of the Law of Succession Act. See 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).

20. I will now address the distribution, the deceased was survived by children, and, therefore, the applicable law on intestate distribution, in such a case, is section 38 of the Law of the Law of Succession Act, which envisages equal distribution amongst all the children of the deceased. The reference to children in that provision includes daughters, for there is no distinction in it, and in the Law of Succession Act in general, between male and female children. So all the children are to be treated equally. There is also article 27, of the Constitution of Kenya, 2010, to contend with, which envisages equal treatment of both gender. So the sons of the deceased herein should expect the daughters of the deceased to be treated equally with them, notwithstanding their marital status. The fact of the marriage of daughters of the deceased is not a factor at distribution, according to part v of the Law of Succession Act. Going by those principles, the proposals that I find aligned to the law are those made by the administratrices in their written submissions dated October 14, 2020.

21. According to the written submissions by the administratrices, dated October 14, 2020, North Sakwa/Maranda/1XX is distributed equally between the four sons and two daughters. That is in complete conformity with section 38 of the Law of succession Act. Butsotso/Shikoti/90XX is not shared equally, for John Rodgers Midega gets a slightly larger share, the other three sons share equally what is allocated to them, and so do the two daughters, who get a fairly smaller share compared with the sons. The larger share to John Midega has been explained, to cover the graveyard and costs of administration, and the protestors are agreeable, according to their affidavits, to his estate getting a larger share. The smaller shares to the daughters are not explained, but then again the daughters are also the administratrices herein, and the applicants in the confirmation application, the subject of this ruling, and I take it that, by that fact alone, they are agreeable or consenting to taking a smaller share in Butsotso/Shikoti/90XX. I shall approve distribution in those terms, which I have recited in paragraph 8, here above, of this ruling.

22. I have not provided for Mariana Ogodha, as I have not seen any material which indicates that she is entitled to a share in Butsotso/Shikoti/90XX. There is no concurrence amongst all the survivors of the deceased that she should get a share. She has not furnished me with a decree or order from a court of competent jurisdiction awarding her a portion of Butsotso/Shikoti/90XX. In any case, I have no jurisdiction, even if some evidence were to be placed before me, indicating one way or other that she had a right in adverse possession to the portion she claims, to determine her entitlement to title to that portion, or her right to occupy it or even use it. That jurisdiction lies elsewhere, by dint of articles 162(2) and 165(5) of the Constitution of Kenya 2010. The other individuals, named by the protestors, did not buy land from the deceased. They are not creditors of the estate, and the estate is not indebted to them. They should look up to the individuals who sold the land to them.

23. Confirmation of grant is not just about confirmation of distribution, it is also about confirming the administrators as such for the purpose of completion of distribution. I have not been told that the administratrices were not properly appointed, and I have not seen, from the record, anything suggesting so. I have not been told that they failed in their duty as such, and that they would, if confirmed, not be able to administer the estate in accordance with the law. I have not seen, from the record before me, anything that suggests that they have not, thus far, administered the estate in accordance with the law, and that, should I confirm them as such, they would be unable to administer the estate in accordance with the law. I see no reason, in the circumstances, why I should not confirm them to continue to act as administratrices.

24. In the end, I will make the following final orders:(a)That Butsotso/Shikoti/90XX and North Sakwa/Maranda/1XX shall be distributed in the manner indicated in paragraphs 8 and 21 of this ruling;(b)That the grant herein is confirmed in those terms, and a certificate of confirmation of grant shall issue to the administratrices accordingly;(c)That the matter shall be mentioned after six months, to confirm compliance with section 83(g) of the Law of Succession Act, in terms of completion of administration;(d)That any party, aggrieved by the orders made in this ruling, has leave of twenty-eight days, to move the Court of Appeal, appropriately; and(e)That each party shall bear their own costs.

25. It is so ordered.

DELIVERED, DATED AND SIGNED IN OPEN COURT AT KAKAMEGA ON THIS 10th DAY OF June 2022. WM MUSYOKAJUDGEErick Zalo, Court Assistant.Mr. Ezekiel Oduk, instructed by Oduk & Co., Advocates for the administratrices.Mr. K’Ombwayo, instructed by M. Kiveu, Advocates for the protestors.Mr. Ondieki, instructed by Gichaba Ondieki & Company, Advocates for the administratrices of the estate of John Rodgers Midega, deceased.