[2022] KEHC 11385 (KLR)

In re Estate of Daudi Ben Alumasa (Deceased) (Succession Cause 355 of 1989) [2022] KEHC 11385 (KLR) (10 June 2022) (Ruling)

Neutral citation: [2022] KEHC 11385 (KLR)

Republic of Kenya

In the High Court at Kakamega

Succession Cause 355 of 1989

WM Musyoka, J

June 10, 2022

IN THE MATTER OF THE ESTATE OF DAUDI BEN ALUMASA (DECEASED)

Ruling

1. On February 12, 2021, I delivered a judgment by Njagi J, where confirmation of the grant herein was stayed pending determination by the Environment and Land Court over contested issues. The application that was before Njagi, J was a summons, dated September 29, 2012, for confirmation of a grant, dated July 4, 2012.

2. Subsequent to delivery of that judgment the administrator, Isaac Lisaliza Alumasa filed an affidavit, sworn on November 24, 2021, to place before the court a judgment that the Environment and Land Court, in Kakamega ELC No 8 of 2018, delivered on March 20, 2019. The appeal in Kakamega ELC No 8 of 2018 arose from proceedings of the Shinault Land Disputes Tribunal, whose decision was adopted by the court in Kakamega CMC Misc Award No 26 of 2011. The court in Kakamega ELC No 8 of 2018 held that the Shinyalu Land Disputes Tribunal had acted outside its jurisdiction, and quashed the decision it had made, which had been adopted in Kakamega CMC Misc Award No 26 of 2011.

3. The decision in Kakamega ELC No 8 of 2018 paves way for determination of the application, dated September 29, 2012, for confirmation of a grant dated July 4, 2012, which had been stayed to await determination of Kakamega ELC No 8 of 2018 Kakamega ELC No 8 of 2018. I shall proceed to determine the same.

4. 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.”

5. These proceedings relate to distribution of the intestate estate of the deceased herein. He died in 1979, long before the Law of Succession Act came into force in 1981. By virtue of section 2(2) of the Law of Succession Act his estate fell for distribution in accordance with the law and custom then in force. The effect of it is that the distribution under part V of the Law of Succession Act should not apply to his estate. The law that applied to Africans who died intestate in 1979 was customary, and since the deceased died a Luhya, Luhya customary law should apply. 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.

6. 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, 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 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, 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.

7. 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. 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. The letter of the Chief of Muranda Location, dated May 19, 2001, shows that the deceased was survived by a daughter, known as Monica Achitsa Peni. She is listed as the only child. The same letter also lists a brother of the deceased said to be Clement Mukabwa Kyayekanga. The original petition had been brought by a father of the deceased, called Mariko Alumasa Lisalia. At the oral hearing, it emerged that the daughter and the father of the deceased had since died, and that Clement Mukabwa Kyayekanga was the only immediate survivor. Monica Achitsa Peni died on November 5, 2002, and was said to have died without issue.

8. There is no dispute on what is available for distribution, and that is Kakamega/Shiswa/211. A copy of official search, dated April 28, 2000, shows that the same was registered in the name of the deceased on July 1, 1973.

9. 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 administrator who filed the application, Isaac Lisaliza Alumasa, now dead, proposes to share out Kakamega/Shiswa/211, amongst thirteen individuals, who include himself, yet he was the father of the deceased herein. Clement Mukabwa Khayekanga swore an affidavit on July 2, 2012, responding to a summons dated April 16, 2012. It is not clear which summons for confirmation of grant is being decided. He asserts that Kakamega/Shiswa/211 belonged to his side of the family, as the other side of the family had Kakamega/Shiswa/212, for the deceased was polygamous. He proposed that members of the other side of the family should not to get the share in the property registered in the name of his uterine brother. Members of the other side of the family brought a protest alleging a trust. None was proved, and I even doubt whether I have any jurisdiction to decide on the same in these proceedings. I find that the outcome in Kakamega ELC No 8 of 2018 has no relevance to the issue of trust.

10. As there is no proof of a trust over Kakamega/Shiswa/211, in favour of the second house of the father of the deceased, and as Clement Mukabwa Khayekanga is the sole immediate survivor of the deceased, I find that he is the only person entitled to Kakamega/Shiswa/211, both at customary law and the Law of Succession Act, and the said property shall devolve to him.

11. In the end, I will make the following final orders:a.That Kakamega/Shiswa/211 shall be distributed in the manner indicated in paragraph 10 of this ruling;b.That the grant herein is confirmed in those terms, and a certificate of confirmation of grant shall issue to the administrator 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; ande.That each party shall bear their own costs.

12. It is so ordered.

DELIVERED, DATED AND SIGNED IN OPEN COURT AT KAKAMEGA ON THIS 10TH DAY OF JUNE 2022WM MUSYOKAJUDGEErick Zalo, Court Assistant.Mr Elung’ata, instructed by Elung’ata & Co., Advocates for Clement Mukabwa Khayekanga.Mrs Muleshe, instructed by Phoebe Munihu Muleshe & Company, Advocates for Isaac Lisaliza Alumasa.