[2022] KEHC 2992 (KLR)

In re Estate of Cecil Peter Okumu (Deceased (Succession Cause 576 of 2005) [2022] KEHC 2992 (KLR) (13 May 2022) (Ruling)

Neutral citation: [2022] KEHC 2992 (KLR)

Republic of Kenya

In the High Court at Kakamega

Succession Cause 576 of 2005

WM Musyoka, J

May 13, 2022

Ruling

1. What is for determination is a summons, dated 27th May 2016, which seeks confirmation of the grant herein, made to Roselyne Atieno Oracha, the administratrix, and the applicant in respect of the said application. In the affidavit sworn in support of the application, by Roselyne Atieno Oracha, on 27th May 2016, it is averred that the deceased was survived by a widow, Mary LO Okumu; three daughters, Nancy Akinyi Okumu, Millicent Akumu Oracha and Lilian Achieng Oracha; three sons, Chrispinus Odhiambo Okumu, Victor Odongo Oracha and Eric Ochieng Oracha; and a granddaughter, Mary Atieno, the daughter of a late son of the deceased called Mark Oracha Omondi. The late Lilian Achieng Oracha was said to have died without issue. The assets of the estate are listed as a gratuity held at the Barclays Bank of Kenya Limited, Kakamega Branch, Butsotso/Shikoti/2632 and four plots at Kisumu, whose details are not disclosed. It is proposed that the gratuity be released to the administratrix, to be utilized to settle educational needs of Millicent Akumu Oracha at the University of Nairobi and Charles Otieno at Lubinu High School, and medical needs for Chrispinus Odhiambo Okumu, who has a bipolar condition. It is proposed that Butsotso/Shikoti/2632 be shared equally amongst the beneficiaries. Of the four plots at Kisumu, one to be given to the daughters Nancy Akinyi Okumu, Millicent Akumu Oracha and Roselyne Atieno Oracha, and the other three to be given to the sons. Attached to the application are documents from the University of Nairobi on fees, a letter from the Kakamega County Referral Hospital on the condition of Chrispinus Okumu, a fees structure from Lubinu High School, burial permits for Mark Omondi and Lilian Achieng Oracha, a certificate of official search in respect of Butsotso/Shikoti/2632. Filed simultaneously with the application is a Form 37, filed under Rule 40(8) of the Probate and Administration Rules, duly executed by Roselyne Atieno Oracha, Nancy Akinyi Okumu and Millicent A. Oracha.

2. The application attracted two replying affidavits, both sworn on 19th September 2016, from Eric Ochieng Oracha and Victor Odongo Oracha. As both affidavits are in opposition, I shall refer to the two deponents as the protestors. The two affidavits are complete replicas. The two protestors aver that they and other beneficiaries had been completely left out of the succession process, and expressed surprise at the filing of the confirmation application. They deny collecting rent from one of the assets of the estate. They accuse the administratrix of posing as a widow of the deceased so as to collect the deceased’s death gratuity, which she had refused to share with them. They further accuse the administratrix of not listing some of the assets, that she proposes for distribution, at the initiation of the cause. They aver that there were no consultations on the proposed mode of distribution.

3. To the replies or protests, the administratrix filed a response, by way of a supplementary affidavit, sworn on 20th September 2016, she asserts that in her proposed distribution, she has shared out the estate equally amongst all entitled, including the protestors. She also avers that she did not begin the succession cause without involving the beneficiaries, and that it was the other family members who endorsed her as an administratrix. She avers that all were present before the Chief, when the family sought the letter to introduce them to the court. She avers that the protestors had continued to collect rent from estate assets, which they used on alcohol. She denied presenting herself as a widow of the deceased at any time. She further states that the gratuity money was utilized to settle school and university fees for those in college. She states that she did not include Butsotso/Shikoti/2632 initially because she did not have its particulars. She urges that the protestors ought to disclose any other assets of the estate not included in the application.

4. The administratrix filed a further affidavit on 7th March 2017, disclosing that the ancestral land was Kisumu/Kanyawegi/6409. She has attached a certificate of official search, which shows the land to be registered in the names of Elizabeth Obduru Okumu, Jerusha Aoko Okumu, Otieno Okumu and Fredrick Okello Okumu.

5. Victor Odongo Oracha swore an affidavit of protest on 18th May 2021, which he filed herein on 22th June 2021. He avers that when the grant was sought by the administratrix in 2006, she never obtained the consents of her siblings. He avers that the administratrix had misrepresented herself as a widow of the deceased and was awarded moneys that form part of the estate, which she then squandered. It is averred that she was paid Kshs. 539, 475. 30, which she squandered, and that she was awarded a further Kshs. 6,996. 40 per month, which she never accounted for. She is also accused of collecting rents from Butsotso/Shikoti/2632, which she did not share with the other beneficiaries. He avers that the distribution proposed was unfair, to the extent that he and Eric Ochieng Oracha did not benefit from the monies held at the Barclays Bank account. He avers that those who got a share of the money from the Barclays Bank account and Butsotso/Shikoti/2632 would be benefitting more than the other beneficiaries. He states that he is not aware of the Kisumu plots, and submits that the administratrix ought to demonstrate that the same exist. He states that he was the one taking care of their brother, Chrispinus Odhiambo Okumu. It is asserted that the administratrix was married in Kisii, and stayed there with her family, and she could not possibly be in a position to provide for Chrispinus. He proposes that all the moneys of the estate, being the gratuity and the rental income be pooled together and shared equally amongst the beneficiaries. He asserts that the administratrix had benefitted more from the estate than anyone else and should be excluded from benefit.

6. The administratrix swore a supplementary affidavit on 8th July 2021, filed herein on 14th July 2021. She avers that the deceased had left some death gratuity, some money in Barclays Bank and Butsotso/Shikoti/2632. She avers that all those assets came into her hands as administratrix, and she has since filed accounts as directed by the court, with respect to her handling of the said assets. She states that as the time of the filing of her affidavit the only asset remaining and available for distribution was Butsotso/Shikoti/2632, which she proposes should be shared out equally amongst the beneficiaries. She said that she had established that the Kisumu plots were ancestral lands that were still registered in the name of the father of the deceased, and, therefore, they did not form part of the estate of the deceased. She avers that Butsotso/Shikoti/2632 could be valued, and thereafter sold and the proceeds shared equally among the survivors. She avers that the deceased had a home at the ancestral lands at Kisumu, and that property was available to the family once succession was done with respect to the estate of the father of the deceased.

7. Directions were taken, on 14th June 2021, for canvassing of the application dated 27th May 2016, by way of written submissions. The administratrix’s written submissions were filed on 14th July 2021, dated 8th July 2021. The written submissions by the protestors are dated 2nd September 2021, and were filed in court on 6th September 2021. I have read through the written submissions and noted the arguments made in them.

8. These proceedings relate to the distribution of the intestate estate of the deceased herein. He died in 2002, long after the Law of Succession Act, Cap 160 Laws of Kenya, had come into force in 1981. By virtue of section 2(1) of the Law of Succession Act, and 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 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.

9. The starting point is with the persons beneficially entitled to a share in the estate. Persons beneficially entitled, in the context of intestate succession, refers to 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 other blood relatives of the deceased, to the sixth degree of consanguinity. 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 family 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.

10. In the instant case, the category of creditors or claimants against the estate may not be so relevant, as none have come forward, and there is no claim that there are any. I shall, therefore, stick with the category of beneficiaries who are survivors of the deceased, that is to say the widows and children of the deceased. The surviving widows have prior right over the children, so I shall start with considering whether the widows of the deceased have been properly ascertained. In the confirmation application, the applicant has stated that the widow of the deceased was herself deceased, and that has not been contested by the protestors. 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 deceased children of the deceased. The applicant has disclosed seven children of the deceased in her application, the same number that is mentioned in the letter from the Chief of Shieywe Location, which is undated. Curiously, in the affidavit the applicant is not listed as one of the said children. It would appear though that there is no dispute that she is one of the said children. According to the Chief’s letter the children of the deceased are Roselyne Atieno Oracha, Nancy A. Okumu, Mark O. Omondi, Chrispinus O. Okumu, Victor A. Oracha, Millicent A. Oracha, Eric O. Oracha and Lilian A. Oracha. In the application, the applicant says that Mark Oracha Omondi had since died, but was survived by a daughter named Mary Atieno. Lilian Achieng Oracha had also died with no child. Chrispinus Odhiambo Okumu is said to be mentally challenged, but is said to have a child named Charles Otieno. The protestors have not raised any issue as to rightful survivors of the deceased. I shall take it that the persons listed in the affidavit of the administratrix, sworn on 27th May 2016, are the rightful survivors. Therefore, the proviso to section 71(2) of the Law of Succession Act and Rule 40(4) of the Probate and Administration Rules have been fully complied with.

11. 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. The applicant has shared out only the gratuity, but not the landed assets. For the landed assets she has not distributed the land, but allocated the sharing of the rent from those properties. In that sharing, I note that Mary Atieno, the daughter of the late Mark Oracha, has not been provided for.

12. Related to the allocation of shares to the persons ascertained as beneficially entitled to a share in the estate, is the question of the assets available for sharing or distribution. The question of the assets is critical, for the sharing is of the assets, and without them the issue of distribution should not even arise, for the deceased would be said to have died without an estate. Generally, the parties are agreed on the bulk of the estate available for distribution, what they disagree on is the distribution of the assets themselves. It is not disputed that the deceased had died possessed of Butsotso/Shikoti/2632. It would appear that there was some money in an account that he operated at the Barclays Bank of Kenya. Upon his death, there was pension or death gratuity due from his employer. There is a dispute on the existence of some assets at Kisumu. The applicant says that they exist for that was where the ancestral home of the deceased, was situated the protestors say no such property exists, and the applicant ought to provide proof of the same.

13. Let me start by looking at the landed assets. There is not dispute that Butsotso/Shikoti/2632 exists, and it is developed, and it is income generating. Indeed, the fiercest fight between the survivors is over this asset. It is an asset in the estate, which this court should proceed to distribute. Regarding the Kisumu lands, it is not clear how many exist. The applicant was able to provide particulars of only one, Kisumu/Kanyawegi/6409, which, from the documentation availed, is not registered in the name of the deceased. The applicant has admitted that the Kisumu lands are ancestral, and remain in the name of the father of the deceased, and should be available only after succession to the estate of the father of the deceased is done. Clearly, the Kisumu property is not estate property, and the court should not exercise its mind on its distribution.

14. On the money in the Barclays Bank account, the applicant says that it has been fully expended. I have seen, on record, applications for leave to withdrawal monies from that account to pay school and college fees for some of the beneficiaries, and to settle medical bills for Chrispinus. If indeed, the said monies have been spent or exhausted, the applicant ought to provide a clear statement of account, showing when the monies were withdrawn from the bank account, the source of authority for the withdrawal, and evidence of how the moneys were utilized. Moneys sitting in a bank account operated by the deceased, as at the time of his death, form part of his estate, and should be available for distribution. If the said funds have been expended, then an account would be in order, particularly demonstrating that it was expended properly on things that the administrator was bound in law to spend the funds on. I have not seen a clear account relating to those funds.

15. The other funds are alternately referred to as gratuity and pension. The applicant has filed a statement of account relating to them. She avers that she received monies from the benevolent fund, gratuity and pension. She has gone on the give a breakdown of how the said monies were expended. None of the protestors have raised issue with the account, and I shall leave the matter of that statement of account at that. I would only say that gratuity and dependant pensions are provided for and governed by the Pensions Act, Cap 189, Laws of Kenya. They are payable in the event of the death or retirement of a public officer or employee, and they do not form part of the estate of the deceased person. According to the Pensions Act, the funds, payable under the scheme provided for and governed by that law, are paid directly to the persons, that is the dependants, indicated in the statute, and not to the estate of the deceased. I, therefore, doubt whether there is any utility in this court addressing its mind to the gratuity and pensions. Anyone unhappy with the way the gratuity and pension funds were handled should raise the issue in a separate forum, but not in this succession cause, for those funds were never estate assets. If the parties have to litigate over the same, let them litigate in separate proceedings. The same would apply to benevolent funds. They do not accrue to the estate. Under the benevolent scheme, the funds are paid to persons nominated under the scheme, and any disputed over them should be resolved in accordance with the terms of the scheme. It would be pointless to ask the applicant to account for those funds in these proceedings, for those funds were never estate assets. The law relating to nominations apply to such assets, once nominated such funds are removed from the realm of succession law. See In the Matter of the Estate of Alice Oriedo Okeng’o Oriedo Kakamega HCSC No. 151 of 2009 (Mwita J) (unreported) and GAAM & another vs. MOAO [2016] eKLR (Mwita J).

16. As the asset that is available for distribution is ascertained, and so are the persons beneficially entitled, I shall proceed to distribute the same. At this stage, the wife of the deceased has died, so there is no surviving spouse. The survivors of the deceased are his children. So, the intestate estate is available for distribution under section 38, which envisages equal distribution amongst all the surviving children. Two of the children of the deceased have since died. One was survived by a child, the other was not. Section 41 of the Law of Succession Act provides for what ought to happen to the share due to a child of the deceased who is dead, it should be devolved upon the child or children of the dead child, by the principle of representation or substitution. The child of the dead child of the deceased, who should be a grandchild of the deceased, steps into the shoes of his or her dead parent, and takes what ought to have devolved to the estate of her dead parent, the child of the deceased. So, Mary Atieno shall take the share that should have gone to her father, Mark Oracha Omondi. Lilian Achieng Oracha died without a child. She survived the deceased, and her estate would be entitled to take the share that should have gone to her. Since she had no children, the persons entitled from her estate would be her siblings, who would take equally. Rather than devolve a share to her estate, to be shared out equally later amongst her siblings, who are the beneficiaries herein, the best way out should be to treat her as not taking anything from the estate, for her share will be deemed to have been spread out evenly for sharing amongst her surviving siblings without the need to have it devolved to her estate. The result is that Butsotso/Shikoti/2632 shall be shared equally between Roselyne Atieno Oracha, Nancy A. Okumu, Chrispinus O. Okumu, Victor A. Oracha, Millicent A. Oracha, Eric O. Oracha and Mary Atieno. I was not told the age of Mary Atieno. Should she be an adult, her share shall devolve to her directly, and absolutely. Should she still be a minor, the same shall devolve upon the administratrix to hold the same in trust for her until she attains the age of majority. It will be up to the beneficiaries to, thereafter, if they are so minded, agree on how to deal with the property, whether to sell it and share the proceeds of sale equally or agree on the management of the units on it or agree on how to share the rents accruing, etc. I had previously made orders on accounts with respect to the rents collected by the parties from this property. Parties are at liberty to apply, with respect to the said order and accounts.

17. For avoidance of doubt sections 38 and 41 of the Laws of Succession Act state as follows:“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.

39 …

40 …

41. Where reference is made in the Act to the “net intestate estate” or the residue thereof devolving upon a child or children , the property comprised therein shall be held in trust , in equal shares in the case of more than one child, for all or any of the children of the intestate who attain the age of eighteen years or wo, being female, marry under that age, and for all or any of the issue of any child of the intestate who predeceased him and who attain that age or so marry, in which case the issue shall take through degrees in equal shares, the share which their parent would have taken had he not predeceased the deceased.”

18. I shall not distribute the moneys held in the account at the Barclays Bank as there is no certainty about it. The applicant says that all that money was spent. The protestors are calling for an account. Let the applicant prepare and place an account herein on how much was outstanding on that account as at the date of the death of the deceased, how was that money spent, and with whose authority. The account should be in affidavit form, supported by relevant documentation. Should any of those funds still be available, the distribution thereof shall be ordered in a separate application, after representations have been heard from all the persons interested. Regarding the Kisumu lands, the applicant shall cause the share from the estate of the father of the deceased, that shall be devolved upon his estate, to be placed before this court, once distribution of that estate has been done, for distribution in this cause. The alternative would be to have the said shares devolved directly to the all the survivors of the deceased herein at the confirmation of the grant in the estate of his late father.

19. The final orders are:(a)That the application, dated 27th May 2016, is allowed, so that the grant herein is confirmed, and Butsotso/Shikoti/2632 shall be distributed as per paragraph 16 here above;(b)That a certificate of confirmation of grant shall issue in those terms;(c)That administratrix shall have sixty (60) days to file an account of the moneys held in the account of the deceased at Barclays Bank of Kenya Limited, in terms of paragraphs 14 and 18 here above;(d)That the lands situate at Kisumu shall be handled as per paragraph 18 here above;(e)That the matter shall be mentioned thereafter for monitoring and reporting with respect to (c)and (d), above;(f)That each party shall bear their own costs; and(g)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. Ondieki, instructed by Gichaba Ondieki & Co., Advocates, for the applicant.Mr. Gabriel Fwaya, Advocate for the protestors.