[2022] KEHC 10007 (KLR)

In re Estate of Benjamin Okinda Buya (Deceased) (Succession Cause 291 of 2016) [2022] KEHC 10007 (KLR) (13 May 2022) (Ruling)

Neutral citation: [2022] KEHC 10007 (KLR)

Republic of Kenya

In the High Court at Kakamega

Succession Cause 291 of 2016

WM Musyoka, J

May 13, 2022

Ruling

1. What is for determination is a summons, dated August 4, 2017, which seeks confirmation of the grant herein, made to Michael Luchera Okinda, on February 4, 2017.

2. The summons is brought at the instance of Michael Luchera Okinda, who I shall refer to hereafter as the applicant. He avers that the deceased had been survived by ten children, being Michael Luchera Okinda, Florence Atito, Luka Okinda, Angeline Andama, Leonida Andama, Eunice Nanda Okinda, Kevin Ambasu, Vera Ondechi, Julia Lesi and Celestine Akhono. He is also said to have been survived by a widow, Jescah Awinja Okinda. The assets lined up for distribution are Marama/Buchenya/875 and 876. It is proposed that Marama/Buchenya/875 be devolved upon Kevin Ambasu, with the widow, Jescah Awinja Ambasu having a life interest, and that Marama/Buchenya/876 devolve upon Michael Luchera Okinda and Luka Okinda jointly. Attached to the affidavit in support is a consent to distribution, Form 37, duly executed by one individual out of the eleven survivors and dependants listed the application. The one who has signed is Luka Okinda.

3. There is also another affidavit filed simultaneously with the application, by Florence Atito Okinda, Anjelina Omungala Okinda and Leonida Andama Okinda, sworn jointly on August 4, 2017. They aver that the deceased was a polygamist, and that they were from the first house. They propose that Marama/Buchenya/875 be given to the surviving spouse, Jescah Awinja Okinda, and her son, Kevin Okinda, with the widow having life interest and holding the property in trust for her four daughters. They aver that Marama/Buchenya/876 should devolve upon the sons in the first house, being Michael Luchera Okinda and Luka Samo Okinda. They say that on their part as daughters from the first house, they have no interest in taking a share in the estate, as they are married.

4. The application attracted an affidavit of protest, from Joscah Awinja Okinda, sworn on October 2, 2017. I shall refer to Joscah Awinja Okinda, hereafter, as the protestor. She avers that the deceased was her husband, who had two wives, being herself and the first wife, who had predeceased the deceased. She states that the deceased died possessed of three parcels of land, the two disclosed in the petition, and another situated at Doho, Siaya County, which is not listed in the petition. She states that the deceased had settled his two households during his lifetime, so that the first house was settled on the Doho property, while she was settled on Marama/Buchenya/875 and 876. She avers that her side of the family never lived on the Doho property, while the first house never lived on Marama/Buchenya/875 and 876. She describes the applicant and Kevin Ambasu as sons of the first wife, and adds that they were born and brought at Doho, Siaya, and have never lived or worked on Marama/Buchenya/875 and 876. She avers that all the beneficiaries had not been provided for, and asserts that Marama/Buchenya/875 and 876 should devolve upon her and her children.

5. The applicant has responded to the affidavit of protest, vide an affidavit that he swore on March 20, 2019. He asserts that the two houses of the deceased are entitled to Marama/Buchenya/875 and 876. He avers that the first house was settled on Marama/Buchenya/876, where the deceased constructed his homestead, while the second house was settled on Marama/Buchenya/875. He states that whatever property there was at Doho, Siaya, belonged to the father of the deceased, and that the two houses of the deceased would be entitled to a share in that property, once a succession cause is initiated in the estate of the father of the deceased. He adds that the Siaya property was not part of the estate of the deceased at all. He asserts that he has provided for all the beneficiaries of the deceased.

6. Directions were given on December 10, 2018, for disposal of the application by way of affidavit and oral evidence.

7. The oral hearing happened on November 20, 2019. The protestor was the first on the witness stand. She testified that she was the second wife of the deceased. She said that he died possessed of two farms, one at Doho, Siaya, and the other at Buchenya. She said that she lived at Buchenya, with her children. She stated that her co-wife, had five children, and they lived at Doho, Siaya. She said that she was married in 1985, and lived there since that year. She stated that her co-wife had a house at Buchenya, but had said that she had wanted to move out to Doho. She stated that her husband was buried at Doho, where the first wife was also laid to rest. She said that the Doho land was registered in the name of her father-in-law, the father of the deceased. She asserted that the deceased had a share in that land. She stated that when the deceased died, he left everyone within their own land. She said that the Buchenya property should go to her, while the Doho property should go to the first family. She said that the deceased had given the first family the property at Doho, which was ancestral; while the Buchenya property, which the deceased had bought, was given to her.

8. The applicant took to the stand on February 19, 2020. He stated that Marama/Buchenya/875 was 0. 9 hectare and Marama/Buchenya/876 was 2. 21 hectares. He stated that the first house had five children; while the second house had five children and the widow. He stated that the deceased had put up a house for his mother on Marama/Buchenya/876, and that the deceased put the protestor in the house after her mother died. He said that his mother was buried at Luanda Doho, and so was the deceased, on ancestral land belonging to the father of the deceased.

9. Richard Okwako Guya followed. He was the elder brother of the deceased. He stated that the deceased had two wives, and that the protestor was married during the lifetime of the first wife. He stated that their ancestral home was at Luanda Doho, where the deceased used to live before he bought land at Buchenya. He left his piece of land at Luanda Doho to his son Lucas. He stated that succession to the land at Doho had not been done. He stated that the protestor lived at Buchenya, at a permanent house that the deceased put up, he stated that the house used to belong to the first wife, but put up by the deceased. He stated that the protestor lived in the house where she was left by her husband.

10. Harriton Anjili Nehemiah testified next. He stated that it was his brother who had sold the Buchenya land to the deceased, where he put up a house for the first wife. He said that as at the time he was giving evidence, it was the protestor who was living in that house. He stated that the first wife had two children, while the second house had one. He stated that the applicant and the protestor shared out the land, were living in peace.

11. At the close of the oral hearing, directions were taken for the filing of written submissions. Only the applicant filed written submissions, dated March 5, 2021, filed herein on March 8, 2021. I have read through them, and noted that they do no more than just summarise the facts as set out in the papers filed and the oral testimonies.

12. There is no dispute as to who the survivors of the deceased are. There is common ground that the deceased had two wives. The first wife is dead. She left behind five children, two sons and three daughters. The second wife is alive. She is the protestor herein. She has five children too, being a son and four daughters.

13. On the assets of the estate, there is also consensus, that at the time of his death the deceased had two parcels of land registered in his name. These are Marama/Buchenya/875 and 876. There is talk of land at Luanda Doho, Siaya. However, the same is not in the name of the deceased, but that of his late father. It would appear that he had set up a home there before he bought Marama/Buchenya/875 and 876, where he also put up a home. It would appear though that he had not moved permanently, for when he and his first wife died, their remains were interred at Luanda Doho. His estate is said to be entitled to a share there, but succession is yet to be carried out. There is also talk that the share in Luanda Doho had been allocated to the second son in the first house, Luka Samo. What is clear is that the deceased died possessed of Marama/Buchenya/875 and 876, and was entitled to an undefined share in the estate of his father, on a piece of land at Luanda Doho, whose details have not been disclosed.

14. The dispute really is on the sharing of the estate. The applicant would like to have the two parcels of land that are registered in the name of the deceased shared out, saying that the Doho property could be distributed equally once succession is done to the estate of the father of the deceased, and the estate of the deceased is allocated its share. He further states that the deceased had shared out the Buchenya property during his lifetime between the two houses, so that the first house was settled on Marama/Buchenya/876, while the second house was settled on Marama/Buchenya/875. The protestor asserts that the deceased had distributed his property during his lifetime, and settled his two houses, so that the first house was settled at Luanda Doho, while her house was settled at Buchenya, and that, therefore, the first house should take the property at Luanda Doho, while she takes the two parcels of land at Buchenya.

15. The starting point should be that the court will only distribute assets that are in the name of the deceased. Property that is not yet in his name does not belong to his estate, and does not vest in the administrator of his estate, and is not available for distribution. That then should mean that I should not tax my mind too much on the Luanda Doho property, and I should train my mind more on the Buchenya property. I could give directions on what should happen eventually after succession is mounted in the estate of the father of the deceased, and his share of the Luanda Doho property is allocated to his estate. See definition of “estate” and “free property” in section 3 of the Law of Succession Act, Cap 160, Laws of Kenya, and section 79 on the vesting of all the property of the deceased in personal representatives.

16. On Buchenya, I am told by the administrator that his side of the family is entitled to Marama/Buchenya/876, while the other is entitled to Marama/Buchenya/875, on the basis that the deceased had settled them as such. The protestor disagrees saying that the deceased had given both parcels of land to her, since the other side had been settled at Luanda Doho. What the parties allude to is what is known as inter vivos distribution, where the court is invited to allocate property based on a distribution that the deceased had done prior to his death. After looking at the documents filed herein, and hearing the oral testimonies of the witnesses, I have not seen material from which I can conclude that there was any inter vivos distribution either way. The applicant lurches on the allegation that the deceased had put up a permanent house for his mother on Marama/Buchenya/876, to suggest that that was evidence that he had settled her house on Marama/Buchenya/875. He did not say a word about where the deceased might have put up a home for the protestor. He did not say whether Marama/Buchenya/876 was reserved for the exclusive use of the first house, and that the second house was confined to Marama/Buchenya/875, in terms of residence and usage. It is clear that after the first wife died, the deceased took the protestor and put her in the permanent house which he had built on Marama/Buchenya/876, and where the first wife lived before her demise. The protestor apparently lives in that permanent house on Marama/Buchenya/876 to date. It cannot, therefore, be said that Marama/Buchenya/876 was allocated to the first house. On her part, the protestor concedes that the first wife lived on the Buchenya property, but evinced an intention to move to Luanda Doho. The fact that she lived in Buchenya, and even died while still living there, suggests that Buchenya was not reserved for the second house. My conclusion is that there was no inter vivos distribution, and the deceased had not allocated any of the two parcels of land in Buchenya to any of the two houses. The two are available, therefore, for distribution to all the survivors of the deceased.

17. So, how are two parcels of land at Buchenya to be distributed? One parcel is said to be 0. 93 hectare and the other 2. 21 hectares. The administrator proposes that the first house takes the larger parcel, Marama/Buchenya/876, and leaves the smaller one, Marama/Buchenya/875, to the second house. That proposals appears to be inequitable given the number of survivors in each house. The deceased died a polygamist, in 2008, long after the Law of Succession Act, had come into force in 1981. He died intestate. His estate, therefore, fails for distribution in accordance with Part V of the Law of Succession Act. He died a polygamist, having 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 share allocated to each house is distributed amongst the members of each house in terms of sections section 35 to 38, depending on the composition of each house.

18. For avoidance of doubt, section 40 of the Law of Succession Act states as follows:“Where intestate 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 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. ”

19. In the instant case, the first house comprises of five children but no spouse, which means that it has five units. The second comprises of a surviving widow and five children, which makes six units. The two can be reduced to a ratio of 5:6. In total, the estate comprises of eleven units. The two parcels of land, Marama/Buchenya/875 and 876, in total is 3. 14 hectares. The said 3. 14 hectares shall be divided into eleven units, and shall be shared between the two houses in the ratio of 5:6. Thereafter, the units allocated to the first house shall be distributed in accordance with section 38 of the Law of Succession Act, as that house is comprised of children only but no spouse. The property shall be shared equally between the children. As the daughters have renounced their share in the property, the same shall be distributed equally between the two sons in that house. The units devolved to the second house shall be distributed in terms of section 35 of the Law of Succession Act, given that the house comprises of a surviving spouse and children. That means that the property shall devolve to the surviving widow, during life interest, and thereafter to the five children in equal shares. In the event that the Luanda Doho land is subjected to succession, and a share allocated to the estate of the deceased herein, that share shall be subjected to distribution using the formula that I have set out above. The distribution on the ground, of Marama/Buchenya/875 and 876, shall take into account occupancy and developments, and the surviving widow shall have the portion where the permanent house that she is currently occupying stands.

20. So as to clear any doubts, the relevant portions of sections 35 and 38 of the Law of Succession Act provide as follows:“35 Where intestate has left one surviving spouse and child or children(1)… 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 estate(2)…(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…38Where 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.”

21. The final orders are as follows:a.That application dated August 4, 2017 is disposed of in the terms proposed above, and the grant herein is confirmed in those terms;b.That the estate of the deceased shall be distributed in the terms set out in paragraph 19 hereabove;c.That a certificate of confirmation of grant shall issue accordingly;d.That each party shall bear their own costs; ande.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 13THDAY OF MAY, 2022W. MUSYOKAJUDGEMr. Erick Zalo, Court Assistant.Mr. Osango, instructed by Osango & Co, Advocates, for the applicant.Ms. Sijenje, instructed by ABL Musiega & Company, Advocates, for the protestor.