[2022] KEHC 14034 (KLR)

In re Estate of Godfrey Alati Olukoye (Deceased) (Succession Cause 2044 of 2010) [2022] KEHC 14034 (KLR) (Family) (7 October 2022) (Ruling)

Neutral citation: [2022] KEHC 14034 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Family

Succession Cause 2044 of 2010

M Thande, J

October 7, 2022

Ruling

1. The deceased herein Godfrey Alati Olukoye died intestate at the MP Shah Hospital on March 25, 2010 at the age of 44. The deceased was survived by 2 wives and 5 children. Following the deceased’s demise, a grant of letters of administration, was on May 13, 2011, was issued to his 2 widows, Judith Betty Ayuma (the protestor) and Emily Dorothy Osena (the applicant).

2. The record shows that the estate of the deceased comprises the following assets:a.Kajiado/Kitengela/11057b.Kajiado/Kitengela/11058c.Nairobi Block 82/2835d.Kahawa Sukari Limited Plot No 1277e.Maragua township unsurveyed residential plot No 37f.LR No 24854, Makuyug.Motor vehicle KAD 390Sh.CMC sharesi.KCB sharesj.Eveready sharesk.Kengen sharesl.Mumias Sugar Co sharesm.Safaricom sharesn.Pension from Kenyatta University

3. By a summons dated August 10, 2020, the applicant, moved this court seeking the confirmation of the grant. The applicant proposed inter alia that the protestor gets Kajiado/Kitengela/11058 and Maragua township unsurveyed residential Plot No 37 to hold in trust for Robinson Anambo Olukoye and Isabel Khalechi Olukoye in equal shares, while Stella Awinja Olukoye gets Kajiado/Kitengela/11057 and Nairobi Block 82/2835.

4. The protestor opposed the Summons by her affidavit of Protest dated February 25, 2021. She proposed that she gets both Kajiado/Kitengela/11057 and Kajiado/Kitengela/11058 while Stella Awinja Olukoye gets Nairobi Block 82/2835 and Maragua township unsurveyed residential Plot No 37. The 2 widows were unable to agree.

5. When this court considered this matter earlier, it noted from the proposals for distribution of the estate made by the applicant and the protestor that they are both generally in agreement. They only differ in relation to 2 properties, namely Kajiado/Kitengela/11057 and Maragua Township unsurveyed residential Plot No 37. In its ruling of February 25, 2022, this court directed that the summons for confirmation dated August 10, 2020 and the affidavit of protest dated February 25, 2021 be served upon all beneficiaries of the estate who were given the liberty to file responses.

6. In a replying affidavit sworn on May 17, 2022, Stella Awinja Olukoye, one of the children of the deceased stated that she had no objection to the proposals made by the applicant. She however objected to the mode of distribution proposed by the protestor. She averred that the Makuyu and Maragua properties were purchased by the deceased when the protestor was working in Muranga as a judicial officer before she was sent home in the radical surgery of the judiciary in 2003 famously referred to as the “Gicheru Purge”. Stella further stated that she declines the Maragua property and Nairobi Block 82/2835 as she does not know their location and only the protestor does. Her wish is to have the Kitengela plot, the location of which she is aware. She denied the claims by the protestor that she purchased the Kitengela plots with the deceased. The same were purchased by the deceased and that is why the titles thereto are with the applicant who was living with the deceased. She further stated that at the protestor commenced construction after the demise of the deceased without the authority of the law or knowledge of the other beneficiaries. She urged the court to bring this matter to a fair and final conclusion by directing the beneficiaries to adduce oral evidence on the disputed Kitengela plots.

7. In her affidavit sworn on June 24, 2022, Isabel Khalechi Olukoye (Isabel) a daughter of the deceased and the protestor accused Stella of malice towards the protestor. She asserted that their home sits on Plots Nos Kajiado/Kitengela/11057 and 11058. To grant Plot No Kajiado/Kitengela/11057 to Stella would result in demolition of their home thereby causing great financial harm and damage. She further contended that Stella can easily be shown where the Maragua property is. She supported the mode of distribution proposed by the protestor.

8. I have considered this matter and the affidavits and submissions filed by Stella and Isabel.

9. The court is enjoined by the Constitution of Kenya, 2010 to promote alternative dispute resolution mechanisms. Article 159(2)(c) provides:(2)In exercising judicial authority, the courts and tribunals shall be guided by the following principles(c)alternative forms of dispute resolution including reconciliation, mediation, arbitration and traditional dispute resolution mechanisms shall be promoted, subject to clause (3)

10. The dispute between the parties herein revolves around 2 properties of the estate. The court did urge the parties to negotiate with a view to settlement but there appears to have been no goodwill and the negotiations did not take place.

11. In the absence of a negotiated settlement between the parties of the court will apply the law. It is common ground that the deceased was a polygamous intestate. Section 40(1) of the Law of Succession Act provides for distribution of the estate of an intestate who was polygamous, as follows: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.

12. From the material placed before me, the court is unable to make a considered determination as to whether equal distribution of the estate amongst all the beneficiaries will be just. Although the dispute revolves around 2 properties, it in quite apparent that further evidence is required regarding the entire estate, including the state of the properties before and after the demise of the deceased, the value of the same and the properties currently occupied by or in possession of the beneficiaries.

13. Accordingly, I direct that the summons for confirmation of grant dated August 10, 2020, be heard by way of viva voce evidence. Parties are at liberty file and exchange further evidence by October 31, 2022. Mention on November 7, 2022 for directions as to hearing.

DATED, SIGNED AND DELIVERED IN NAIROBI THIS 7TH DAY OF OCTOBER, 2022M. THANDEJUDGEIn the presence of: -…………………………………………………………… for the Applicant…………………………………………………………… for the Protestor……………………………………………………..…….. Court Assistant