[2022] KEHC 11386 (KLR)

In re Estate of Francis Adamba Musaviri (Deceased) (Succession Cause 329 of 2004) [2022] KEHC 11386 (KLR) (10 June 2022) (Ruling)

Neutral citation: [2022] KEHC 11386 (KLR)

Republic of Kenya

In the High Court at Kakamega

Succession Cause 329 of 2004

WM Musyoka, J

June 10, 2022

Ruling

1. Representation to the intestate estate herein was made to James Lihanda, on October 26, 2007, and a grant duly issued, dated December 3, 2007.

2. The application that I am invited to consider is a summons, dated November 13, 2019. It seeks confirmation of the grant of representation made onOctober 26, 2007. The deceased is said to have been survived by his father William Musaviru, a daughter Everlyne Adamba, a son Edwin Ngodo Adamba, and an adopted daughter Carolyne Nyagoha. He is said to have died possessed on South Kabras/Chesero/886, 1037, 1443 and Kabras/Chesero/1444. It is proposed that the property be shared as follows: South Kabras/Chesero/886 to Edwin Ngoda Adamba, Kabras/Chesero/1037 to Ikoli Secondary School, 1443 to Carolyne Nyagoha and Kabras/Chesero/1444 to William Musaviri Adamba. Everlyne Adamba, a daughter of the deceased is not provided for, yet there is no consent in Form 37, executed by her conceding to the disinheritance. Secondly, she has not filed a document renouncing her share.

3. When the matter came up for hearing on September 27, 2021, I enquired after Arthur Adamba, who had, in the initial stages of this cause, filed a caveat, dated October 18, 2004, and an application dated September 14, 2005, seeking extension of time to file an objection. He was claiming that the deceased was his father. The administrator, James Lihanda filed an affidavit describing him as a child born outside wedlock. On January 27, 2021the administrator that Arthur Adamba was dead. I directed the administrator to provide evidence that he was dead. When the matter was mentioned next on November 30, 2021, the administrator said he had no evidence that Arthur Adamba was dead, and none has been filed to date. The issue as to whether Arthur Adamba is a child of the deceased is alive, and has not been determined. If he is dead, proof of his death should be provided, and his survivors should be served, so as to give them a chance to be heard on the matter. It cannot be swept under the carpet, otherwise it could come back to haunt the process.

4. Everlyne Adamba attended court on November 30, 2021, she stated that the deceased was her father, and asserted her right to a share in the estate. The administrator said she was going to be given a property in the scheme. The scheme where this property is situated was not disclosed, neither were the details of the property given. It was not demonstrated whether the deceased had property in the alleged scheme, and it was not explained why the said property has not been listed as an asset in the estate. The matter of the distribution of the estate is now before me. All the assets that make up the estate must be placed before me. All the persons beneficially entitled should all be provided for, unless they have renounced their right. No explanation has been given as to why Everlyne Adamba was not allocated anything from her father’s estate, yet she is listed as a survivor, and she has not signed any document renouncing her share.

5. One of the assets has been allocated to Ikoli Secondary School. It is surprising that a school can be allocated a share in the estate of the deceased, yet a child of the deceased, Everlyne, is excluded, gets nothing. The school is not a child of the deceased, nor a survivor of the deceased, in the context of the Law of succession Act cap 160 Laws of Kenya. No document has been filed to demonstrate how it has acquired an interest in the property. Did it buy the land? Was the land gifted to it? If it bought the land, who sold it to it? If the land was gifted to it, who made the gift? I raise these issues because in 2006 some of the children of the deceased were listed as minors, and I note that the administration of the estate was committed to a brother of the deceased, rather than to the children of the deceased themselves, who are the survivors and heirs, and who have prior entitlement to administration over the brother of the deceased, and yet one of them was an adult at the time representation was being granted. In such circumstances, the court has to be extra vigilant, to protect the interests of the children, as these other people may be advancing interests that may be detrimental to them, and using their superior positions within the family to exploit them. The school cannot possibly have priority over the children of the deceased. Before any share is allocated or devolved to the school, it must be shown how the school came to acquire an interest in the estate of the deceased. It is equally important to know when that interest was acquired. Was it before or after the deceased died? This is about land, and the Law of Contract Act, cap 23, Laws of Kenya, is clear, at section 3, that documentary proof must be availed, of the transaction through which that interest was acquired.

6. I see that the father of the deceased, called William Musaviri Adamba, is one of the beneficiaries. It has not been explained the circumstances under which the father of the deceased is lumped together with the children of the deceased, yet the Law of Succession Actdoes not put the inheritance rights of children at par with those of the parents of the deceased. Where a deceased person is survived by a spouse or children, these two categories would be entitled, to the total exclusion of any other relative, including the parents of the deceased. See In re Estate of Joshua Orwa Ojode (Deceased) [2014] eKLR (Musyoka J), In re Estate of John Musambayi Katumanga (Deceased)[2014] eKLR (Musyoka J), John Gathee Githae vs. Rose Wanjiru Muturi [2016] eKLR (Ougo J) and In re Estate of George Muriithi Gitahi (Deceased)[2019] eKLR (Nyakundi J). That scheme of distribution is very clear in Part V of the Law of Succession Act. There is a hierarchy. The surviving spouses are at the top of the pyramid, followed by the surviving children; and where there is no spouse or children the parents follow, followed by the siblings and other relatives. There is no surviving spouse here, but there are surviving children, and, therefore, these surviving children have a prior right to inherit over their grandfather. That is the law. What I find surprising is that the administrator allocates a share to the father of the deceased, but disinherits a child of the deceased. That cannot be. William Musaviri Adamba should not get a share in the estate, for he can only get a share where the deceased was not survived by a spouse or child. Where there are children, like in this case, he can only access the estate through section 26 of the Law of Succession Act. I have not seen an application under section 26, or orders made by this court under that provision, allocating to William Musaviri Adamba a share in his son’s estate. Succession is transgenerational. Property moves from parents and grandparents to children and grandchildren. It does not operate the other way round, except in the exceptional circumstance of a dead person not being survived by a spouse or child. That is not the case here, so there is no justification for William Musaviri Adamba to get anything out of his son’s estate. It would be unethical for a grandfather to take away property that should be the preserve of his grandchildren.

7. For avoidance of doubt, section 39 of the Law of Succession Act, which provides the circumstance under which a parent inherits from a child, and it says as follows:(1)where an intestate has left no surviving spouse or children, the net intestate estate shall devolve upon the kindred of the intestate in the following order of priority.a.father or if deadb.mother; or if deadc.brothers and sisters, and any child or children of deceased brothers and sisters, in equal share; or if none.”

8. Before I make final orders on the distribution of the estate herein, let the administrator address the issues that I have raised in paragraphs 3 and 5. I shall postpone confirmation of the grant to allow that to happen. The administrator shall file a further affidavit, to address those issues. He shall also provide documentary proof to support whatever he shall say in that further affidavit. The matter shall be mentioned thereafter for further directions, based on whatever the administrator shall have done.

9. It is so ordered.

DELIVERED, DATED AND SIGNED IN OPEN COURT AT KAKAMEGA ON THIS 10TH DAY OFJUNE 2022WM MUSYOKAJUDGEErick Zalo, Court Assistant.James Lihanda, administrator, in person.Everlyne Adamba.Edwin Ngodo.Carolyne Nyagoha.William Musaviri.Dickson Chogo.Dorcas Luseno.