[2019] KEHC 7603 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT BUNGOMA

SUCCESSION CAUSE NO 19 OF 2008

IN THE MATTER OF THE ESTATE OF ELIUD WANYAMA SARATUKI....(DECEASED)

AND

CHRISTINE SIKHOYA WANYAMA

JOHN MUCHASI WANYAMA

GEORGE NANDOKHA WANYAMA

CAROLINE KITUYI WANYAMA..............(ADMINISTRATORS)

JUDGEMENT

The late Eliud Wanyama Saratuki died on the 3/7/2007. Thereafter Yokabet Khamala Wanyama and John Songolo K.Wanyama (herein ,the Petitioners) petitioned for grant of letters of administration in respect to the estate of the deceased. The petition was for their benefit and other beneficiaries.

On the 20th May 2008 Florence Khwaka Wanyama filed a cavet in respect to the estate of the deceased and subsequently on the 27th May 2008 she filed an affidavit of protest against confirmation of grant stating that she is one of the widows of the deceased and he died living behind 4 widows namely: -

i) Yakobet Khamala Wanyama -1st Widow

ii) Robai Lusanya Wanyama-2nd Widow

iii) Jane Nanyama Wanyama-3rd Widow

iv) Florence Khwaka Wanyama-4th Widow

That the deceased was also survived by the following children from the 4 widows: -

1) Yakobet Khamala Wanyama the 1st Widow children comprised: -

i. Annah Naliaka Wanyama-daughter

ii. John Songolo K.Wanyama-son

iii. Christine Sikhoya Wanyama-daughter

iv. Augustine Muchaji Wanyama-son

v. Phaustine Wanyama-daughter

vi. Miriam Nasila Wanyama-daughter

vii. Beatrice Walela Wanyama-daughter

viii. Emmanuel Wasike Wanyama-son

ix. Godfrey Ngeywo Wanyama-son

x. Collins Nandokha Wanyama-son

xi. Esther Nasong’o Wanyama-daughter

xii. Gladys Mapesi Wanyama-daughter

2) Robai Lusanya Wanyama the 2nd widow children comprised: -

i. John Muchesi Wanyama-son

ii. Catherine D.Wanyama -daughter

iii. Edith Wamini Wanyama-daughter

iv. Winrose Nasila Wanyama-daughter

v. Peninah Nasong’o Wanyama-daughter

vi. Getrude Kituyi Wanyama-daughter

vii. Edwin Wamboka Wanyama-son

viii. Elizabeth Sikhoya Wanyama-daughter

ix. Sarah Nabalayo Wanyama-daughter

x. Samuel Nandokha Wanyama-son

3) Jane Nanyama Wanyama the 3rd Widow children comprised: -

i. Mark Maina Wanyama-son

ii. Rose Kituyi Wanyama-daughter

iii. Dorcus Sikhoya Wanyama-daughter

iv. Samson Nabiswa Wanyama-son

v. Rebecca Sikhoya Wanyama-son

vi. George Nandokha Wanyama-son

vii. Benard Mukhwana Wanyama-son

viii. Evans Khisa Wanyama-son

4) Florence Khwaka Wanyama the 4th Widow children comprised: -

i. Robert Wamboka Wanyama-son

ii. Carolyne Kituyi Wanyama-daughter

iii. Jeniffer Mutonyi Khwaka-daughter

iv. Joseck Wanyama Khwaka-son

v. Bathlyne Namwei Wanyama -daughter

vi. Christine Nason’go Wanyama-daughter

vii. Emmanuel Saratuki Wanyama-son

viii. Ronald Mufumbula Wanyama-son

ix. James Nandokha Wanyama-son

x. Francis Wasike Wanyama-son

xi. Joan Nabifo Wanyama-daughter

xii. Esther Sikhola Wanyama-daughter

The estate of the deceased listed in the petition included portions of land described as Land Parcel No.N.Malakisi/N.Wamono/620-acres and Land Parcel No.N.Malakisi/N.Wamono/632-12 1/2 acres, Plots Nos. Bungoma 377,MayekweNo.8,Chebukube Market No.7.

On the 5th November 2018 the court directed petitioners to file their proposal on mode of distribution of the estate and in compliance with court directions the John Muchasi and Caroline Kituyi Wanyama filed their proposal under form 37 and dated 20th November 2018 for their benefit and of other beneficiaries that included distribution of deceased assets among the widows and their children. Also, Christine Sikhonya and George Nandokha Wanyama gave their proposed-on mode of distribution dated 13th November 2018.

On the 8. 2.2019 the court directed that the petition and the protest be heard by viva-voce evidence and in that regard the parties testified as follows: -

Yakobet Khamala Wanyama the 1st widow testified she was married to deceased in 1953 as 1st wife and he had 4 wives and all of them had children and she wanted the assets to be divided equally among the widows who will then distribute the same to their children.

Robai Lusanya Wanyamathe 2nd widow testified that she is a widow to the deceased and got married in 1965 and she is in 2nd house. She stated that she wanted the estate to be divided among the 4 widows and they will then distribute among their children.

Jane Nanyama Wanyama the 3rd widow testified that she is she got married to deceased in 1963 as 3rd wife and she stated that she wanted the estate to be divided among the 4 widows and they will then distribute among their children.

Florence Khwaka Wanyama the 4th widow testified that she is the 4th widow of the deceased and got married in 1974 and she stated that she wanted the estate to be divided among the 4 widows and they will then distribute among their children.

Christine Sikhoya Wanyama who is a co-administrator testified that the deceased is her father and she stated that she has given mode of distribution together with George Nandokha Wanyama and she wanted each house to be given equal share and widows to distribute among the children.

George Nandokha Wanyama who is a co-administrator testified that deceased was his father and he is from 3rd house and he stated that deceased left the following a number of assets behind he stated that he wanted the estate to be divided among the 4 widows and they will then distribute among their children.

John Muchasi Wanyama who is a co-administrator testified that the deceased was his father and he stated that he wanted the estate to be divided among the 4 widows and they will then distribute among their children.

Carolyne Kituyi Wanyama who is a co-administrator testified that deceased was her father and he left behind assets stated that she wanted the estate to be divided among the 4 widows and they will then distribute among their children per the mode of distribution filed by her and John Muchesi.

To determine the mode of distribution of the deceased estate I wish to draw the attention of the petitioners to the fact that the deceased was polygamous and court should be guided by section 40 of the law of succession in the distribution of the properties in question.

Section 40 of law of succession provides: -

Where intestate was 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 of the personal and household effects and the residue of the net intestate estate within each house shall then be in accordance with the rules set out in sections 35 to 38.

From the evidence it clear that the deceased was polygamous and he was survived by 4 widows each with children and the following properties: -

1) Land Parcel No.North Malakisi/North Womono/632 measuring 12 ½ acres.

2) Land Parcel No.North Malakisi/North Womono/620 measuring 33 acres and Petitioners have indicated 2 acres of this parcel of land was sold out to Chrisptopher Kasuti by the deceased thereof remaning portion is 31 Acres.

3) Plot No.377 Bungoma Town

4) Plot No.7 Chepkube Market

5) Plot No.8 Mayekwe Market

6) Rental Collections approximately Kshs.1,200,000/= in account number 5322314001 of Diamond Trust Bank.

I have therefore considered the law applicable in this matter and the two proposals on mode of distribution of the estate that have been placed before me. I have taken into account the pleadings and submissions before me by all the widows and some beneficiaries that the estate be divided equally among the 4 widows to hold it in trust for themselves and for the benefit of their children. For equity to be achieved it is my finding that the mode of distribution does commend itself to the circumstance of this cause. The grant is confirmed as per the summons for confirmation of grant in the following terms: -

1. All the estate will be distributed among the 4 widows equally for their own benefit and hold the same in trust of their respective children in the following mode of distribution: -

i. Land Parcel No. North Malakisi/North Womono/632 measuring 12 ½ acres.

This parcel of land will be distributed among the 4 widows equally as follows: -

No. Widow No. Name of Beneficiaries Assets/Shares

1 1st Widow Yakobet Khamala Wanyama 3 1/8 Acres

2 2nd Widow Robai Lusanya Wanyama 3 1/8 Acres

3rd Widow Jane Nanyama Wanyama 3 1/8 Acres

4th Widow Florence Khwaka Wanyama. 3 1/8 Acres

ii. Land Parcel No.North Malakisi/North Womono/620 measuring35 acres.

iii.

No. Widow No. Name of Beneficiaries Assets/Shares

1 1st Widow Yakobet Khamala Wanyama 8 ¼ Acres

2 2nd Widow Robai Lusanya Wanyama 8 ¼ Acres

3 3rd Widow Jane Nanyama Wanyama 8 ¼ Acres

4 4th Widow Florence Khwaka Wanyama. 8 ¼ Acres

Liability

5. Christopher Kasuti(buyer) to be given 2 acres from Land Parcel No.North Malakisi/North Womono/620 measuring 35 acres.

2. Plot No.377 Bungoma Town will be distributed equally among: -

i. Yakobet Khamala Wanyama -1st Widow

ii. Robai Lusanya Wanyama-2nd Widow

iii. Jane Nanyama Wanyama-3rd Widow

iv. Florence Khwaka Wanyama-4th Widow

3. Plot no.7 Chepkube Market will be distributed equally among: -

i. Yakobet Khamala Wanyama -1st Widow

ii. Robai Lusanya Wanyama-2nd Widow

iii. Jane Nanyama Wanyama-3rd Widow

iv. Florence Khwaka Wanyama-4th Widow

4. Plot No.8 Mayekwe Market will be distributed equally among: -

i. Yakobet Khamala Wanyama -1st Widow

ii. Robai Lusanya Wanyama-2nd Widow

iii. Jane Nanyama Wanyama-3rd Widow

iv. Florence Khwaka Wanyama-4th Widow

5. Rental Collections approximately Kshs.1,200,000/= in account number 5322314001 of Diamond Trust Bank. This amount will be shared equally among the 4 widows as set out below: -

i. Yakobet Khamala Wanyama the 1st Widow will receive Kshs.300,000/=and to hold the amount in for herself and in trust of her children.

ii. Robai Lusanya Wanyama the 2nd Widow will receive Kshs.300,000/= and to hold the amount for herself and in trust of her children.

iii. Jane Nanyama Wanyama the 3rd Widow will receive Kshs.300,000/= and to hold the amount for herself and in trust of her children.

iv. Florence Khwaka Wanyama the 4th Widow will receive Kshs.300,000/= and to hold the amount for herself and in trust of her children.

6. No orders as to costs.

Dated and Delivered at Bungomathis 15th day ofMay,2019.

S.N. RIECHI

JUDGE