[2022] KEHC 11437 (KLR)

In re Estate of Festo Lugadiru Abukira (Deceased) (Succession Cause 48 of 2013) [2022] KEHC 11437 (KLR) (8 July 2022) (Ruling)

Neutral citation: [2022] KEHC 11437 (KLR)

Republic of Kenya

In the High Court at Kakamega

Succession Cause 48 of 2013

WM Musyoka, J

July 8, 2022

IN THE MATTER OF THE ESTATE OF FESTO LUGADIRU ABUKIRA (DECEASED)

Ruling

1. On October 25, 2019, I delivered a judgment, wherein I revoked a grant that had been made to Eliud Imbisi Lugadiru as sole administrator; I declared that the deceased had died intestate and his estate was available for distribution under part V of the Law of Succession Act; I identified the survivors of the deceased to be Eliud Imbisi Lugadiru, Sosiness Livoyi Lugadiru, Fred Ambaka Lugadiru, Hudson Mugasu Lugadilu, Emily Makungu Shibutse , Hellen Musivogi Lugadilu, Carlistus Kigalo Kavagi and Milka Wangoi Kamau; I directed that Carlistus Kigalo Kavagi shall take the share of his father Benson Kavagi Lugadiru on his own behalf and that of the other children of his father, and Milka Wangoi Kamau was to take the share of her late husband George Lugadiru, on her own behalf and that of her children; I appointed Eliud Imbisi Lugadiru, Sosiness Livoyi Lugadiru and Emily Makungu Shibutse as the new administrators of the estate; and directed them to file for confirmation of their grant within forty-five days.

2. The application that I am determining in this ruling, a summons for confirmation of grant, dated November 29, 2019, was filed pursuant to the said judgment of October 25, 2019. It is brought at the instance of Sosiness Livoyi Lugadiru and Emily Makungu Shibutse. I shall refer to the three as the applicants. They identify the survivors of the deceased as Emily Makungu Lugadilu, Eliud Imbisi Lugadilu, Habby Misoga Lugadilu, Hellen Musivoji Lugadilu, Sosiness Livoyi Lugadilu, Milka Wangui Kamau (George Lugadilu), Freddy Ambaka Lugadilu, Hudson Mugasu Lugadilu and Kalisters Kigaro Kavagi (Benson Lugadilu). They propose that Kakamega/Mautuma/188 be shared out equally amongst all the survivors of the deceased.

3. That application attracted a protest by Eliud Imbisi Lugadilu, vide an affidavit he swore on January 20 2020, and filed in court on even date. I shall refer to him hereafter as the protestor. The only issue he raises is with respect to the distribution proposed. He avers that he should get a bigger share as he had helped the deceased the property from foreclosure, and the deceased had distributed the land on the ground prior to his death. He also appears to hold the view that the daughters of the deceased ought to get a lesser share. he proposes distribution as follows: Emily Makungu Lugadilu 0. 5 acres, Eliud Imbisi Lugadilu 4. 8 acres, Habby Misoga Lugadilu alias Herbert Ong’aya Lugadilu 1. 8 acres, Hellen Musivoji Lugadilu alias Mary Hellen Lugadilu 0. 5 acres, Sosiness Livoyi Lugadilu 1. 8 acres, Milka Wangui Kamau (George Lugadilu) 1. 8 acres, Freddy Ambaka Lugadilu 1. 8 acres, Hudson Mugasu Lugadilu and Kalisters Kigaro Kavagi (Benson Lugadilu alias Ben Karugi Lugadilu) 1. 8 acres.

4. I had addressed all the issues that the protestor raises in his protest in my judgment of October 25, 2019. These issues are now water under the bridge. If the protestor was not satisfied with the findings and holdings that I made in the judgment, on those two issues, then he should have appealed against the judgment, for the Court of Appeal to give a second opinion on the matter. These matters are res judicata.

5. On the protestor getting a larger share of the estate, I dealt with that issue in paragraph 46 of that judgment, where I said:“On the question of the administrator allocating himself a larger share of the estate for the reasons that he has given, let me say this. Firstly, I have already held that the matter of the alleged will is neither here nor there as the same has not been proved in these proceedings, and certainly it cannot be proved here. There is no basis upon which I can give effect to it in these proceedings. It cannot provide the administrator with a lawful excuse to award himself a bigger share of the estate than his siblings. Secondly, I am not aware of any law, and no such law has been pointed out to me, to the effect that where a child assists a parent to settle debts and liabilities encumbering a property, then, upon the parent’s death the said child is entitled to a bigger share of the estate. Put differently, I am unaware of any legal basis that such assistance would amount to the said child acquiring a right to the property that they have assisted to salvage. The property in question still remains part of the estate of the deceased, and the child can only claim reimbursement from the estate of the expense incurred in saving the property. Thirdly, the fact that the deceased tried to subdivide the property and share it out amongst his sons during lifetime does not mean that he had distributed his property inter vivos. It would only amount to inter vivos distribution if he had actually succeeded in transferring the property to the sons’ names during his lifetime. . As it is there was no inter vivos distribution, and, therefore, the entire piece of land is available for distribution. I find it curious that the deceased tried to make these transfers in 2005, but died in 2010, five years later without having completed the transactions. It was not explained why the transfers stalled as I have said elsewhere, I find it even more curious that it is in the same year, 2005, that he was making the impugned will giving a larger part of the property to the administrator.”

6. In paragraph (e) of the orders made in the judgment, I directed that the all the survivors of the deceased be provided for equally, and provision be made for reimbursement of Eliud Imbisi Lugadiru of any expenses that he proved to have had incurred in salvaging or saving the estate property from foreclosure. In his protest, the protestor has not provided any proof of how much he contributed to forestall the foreclosure, to facilitate his being reimbursed. He merely alleges that he spent money on salvaging the property but provides no proof. He who alleges must prove.

7. On the daughters of the deceased getting a share in the estate, I dealt with that subject at paragraph 43 of the judgment, where I said:“Let me start with the proposal to exclude the daughters from benefit. The deceased died in 2010, long after the Law of Succession Act had come into force in 1981. The Act does not discriminate between sons and daughters of the deceased, whether they are married or not. It treats all the children of the deceased equally. There is nothing in that law that suggests that the estate of an intestate should be shared out only amongst the surviving sons to the total exclusion of the surviving daughters. Indeed, there is nothing in that law which suggests that reference to child and children means or should be interpreted to mean male children. Under the provisions of the Law of Succession Act, no distinction is made between male and female children, nor between married and unmarried children. Succession law envisages equal distribution of the estate amongst all the children, regardless of their gender or marital status or age. That position clearly comes out in section 35(5) and 38 of the Law of Succession Act...”

8. In the orders that I made in the judgment, at order (e), I had directed that all the children of the deceased be provided equally. The issue of the share to be allocated to the daughters cannot be revisited or re-litigated, in the circumstances.

9. In view of everything that I have said above, here are the final orders:a.That I hereby confirm the grant made to the administrators herein on October 25, 2019;b.That the estate shall be distributed in the terms proposed in the application dated November 29, 2019, save that the shares due to the late Benson Kavagi Lugadiru and the late George Lugadiru, shall not be devolved to Kalisters Kigaro Kavagi and Milka Wangui Kamau, but directly to the estate of the two late sons of the deceased to be handled in succession causes to be initiated in the names of the two dead sons of the deceased;c.That certificate of confirmation of grant shall issue in those terms;d.That each party shall bear their costs;e.That the matter shall be mentioned after six months to confirm whether transmission has been done and administration completed, to facilitate closure of the court file; andf.That if any party is aggrieved by the orders made herein, there is leave of twenty-eight days, to move the Court of Appeal, accordingly.

10. It is so ordered.

DELIVERED, DATED AND SIGNED IN OPEN COURT AT KAKAMEGA THIS 8thDAY OF July 2022WM MUSYOKAJUDGEMr Erick Zalo, Court assistant.Mr Matete, instructed by Njiru Kibaru & Company, Advocates for the applicants.Mr Mukavale, instructed by JJ Mukavale & Company, Advocates for the protestor.