[2023] KEHC 27168 (KLR)

In re Estate of Ismael Mangoli Wamwanda (Deceased) (Succession Cause 18 of 2010) [2023] KEHC 27168 (KLR) (1 December 2023) (Judgment)

Neutral citation: [2023] KEHC 27168 (KLR)

Republic of Kenya

In the High Court at Kakamega

Succession Cause 18 of 2010

PJO Otieno, J

December 1, 2023

IN THE MATTER OF THE ESTATE OF ISMAEL MANGOLI WAMWANDA (DECEASED)

Between

Wycliffe Wegulo Mang’Oli

1st Petitioner

William Wawire Mang’Oli

2nd Petitioner

and

Jason Wawire Mang'oli

Objector

Judgment

1. Following the death of Ismael Mangoli Wamwanda (“Deceased”) on 11/11/2009, the petitioners approached the court for letter of administration intestate by a petition dated 16th December 2009. In it, they indicated that the deceased was survived by seven sons and one widow. The eight were named as Jason W. Mangoli, Enock W. Mangoli, William M. Mangoli, Wycliffe W. Mangoli, Aggrey Mangoli, Idris Bongo Barasa and Mary Mangoli, the widow. They further indicated that the estate of the deceased comprised of five immovable properties known as LR No. Bunyala/Namirama/1549,1550,1551,1552 and 1555.

2. A grant of letters of administration intestate was subsequently issued to the petitioners on 1st April, 2010 and amended on 26th April, 2010.

3. By way of summons for revocation of the grant, dated 16th June, 2010, Jason Wanyama Mang’oli, (the objector), sought to have the grant revoked on the ground that the grant was obtained fraudulently and did not give a full disclosure of the deceased’s assets and liabilities, that his consent was not obtained as the executor of the will and that the fact that the deceased left behind a written will, in which he was appointed the executor, was concealed from the court. The application was allowed, by consent, and a fresh grant was issued on 5th May, 2011 in favour of Jason Mangoli, William Mangoli Wawire, Wycliffe Wekulo Mangoli and Mary Mangoli.

4. That was followed with the filling of summons for confirmation of the grant supported by the affidavit of Wycliffe Wekulo Mangoli sworn on 22nd May, 2012. The application only targets one parcel of land for distribution and proposes that the property known as Land Parcel Number Bunyala/Namirama/571 be distributed as follows;a.Jason W. Magoli-7 acresb.Mary Mangoli-4 caresc.William W. Mangoli-4 acresd.Wycliffe Mangoli-4 acrese.Enock Wawire-4 caresf.Aggrey wawire-4 acresg.Idrisi Bongo Barasa-4 acres

5. The proposal is opposed by Mary Mang’oli, the deceased’s 4th wife, in her affidavit sworn on 26th July, 2012 in which she asserts that Land Parcel Number Bunyala/Namirama/571 does not exist having been subdivided into subtitles during the life of the deceased. She then proposes that one of the subtitles being Land Parcel Number Bunyala/Namirama/1549 to be registered in the names of the deceased’s grandson John Okwisya (a minor) and that Bunyala/Namirama/1550,1551,1552 and 1555 be shared among the deceased’s sons who include William Wawire Mang’oli, Wycliffe Mang’oli, Idris Barasa and Enock Wamwanga and that she be given ¼ an acre from each of the said parcels to form one acre. She further avers that the daughters of the deceased do not have any interest in the deceased’s estate as they are happily married. She also states that Jason Wanyama Mang’oli and Aggrey Wawire Mang’oli were given other parcels of land by the deceased and should thus not benefit from the remaining parcels.

Affidavit of Jason Wanyama Mang’oli sworn on 26th July, 2012 6. He condemns the petitioner’s summons for confirmation of grant because it does not disclose the daughters of the deceased who include; Farida Lusike, Petina Nerima, Maurine Mang’oli, Nesacha Mang’oli 1, Nesacha Mang’oli 2, Katongane Mang’oli and Namachimba Mang’oli. He states that prior to his demise, the deceased on 11/9/2009 subdivided land parcel number Bunyala/Namirama/571intoBunyala/Namirama/1548,1549,1550,1551,1552,1553,1554 and 1555 and thereafter transferred 1548 to him, 1554 to his grandson, Kennedy Omwanda Mang’oli and 1553 to Aggrey Wawire Mang’oli and that they have no interest in the estate of the deceased which they argue should not include properties transferred by the deceased. He asserts that during his lifetime the deceased gave his grandson, John Okwisya a minor Bunyala/NAmirama/1549 which measures approximately 1. 51 hectares by procuring the necessary Land Control Board consents, filling the transfer forms, paying the registration fees and stamp duty at the lands office though he passed on before the said registration and transfer occurred. He claims that he later came to learn of the existence of the will which named him as the executor but the petitioners were adamant on the subject cause.

7. The averments of Jason Mangoli are reiterated by Rispa Nasike Khaemba in her affidavit sworn on 8/3/2015 which she swears on her behalf and that of her sisters namely Fridah Wanyama, Herina Wanyama aka Hellena, Betina Nafula and Mourine Lusike being daughters of the deceased.

Affidavit of Asmin Nesacha sworn on 28th September, 2012 8. She avers that she is a daughter of the deceased from the 2nd house. She contends that the deceased did not execute a will during his lifetime which purports to give Jason Wanyama Mabgoli 7 acres of the estate and his sons to get 4. 5acres. She terms the will a forgery and proposes the subdivision of Bunyala/Namirama/571 be cancelled since it was based on the will.

9. It is her proposition that Bunyala/Namirama/571 be distributed as follows;a.Jason W. Mangoli-5 acresb.Mary Mangoli-4 acresc.William W. Mangoli-4 acresd.Wycliffe Mangoli-4 acrese.Enock Wawire-4 acresf.Aggrey Wawire-4 acresg.Adrisi Bongo Barasa-4 acresh.The daughters of the deceased namely; Pamela Nesacha Mangoli, Julia Nawire Wamwanda, Asmin Nesacha and Violet Kong’ane to get 2 acres each.

10. The averments of Asmin Nesacha are reiterated by Violet Katong’ane, Pamela Nesacha Mangoli

11. In the affidavit of William Wawire Mangoli sworn on 28/9/2012 he supports the mode of distribution in the summons for confirmation of grant and terms the will a forgery.

Affidavit of Kennedy Omwanda sworn on 19/3/2015 12. He asserts that the deceased, during his lifetime, transferred Bunyala/Namarima/1554 to him and the parcel has exclusively belonged to him since 19/11/2004. He claims that when the deceased prepared his will he was working in Olkalau and was thus incapable of influencing the deceased.

13. In the further affidavit of Jason Wanyama Mangoli sworn on 12/1/2016, he refutes claims that the will of the deceased was a forgery and claims that he only came to know of its existence following the death of the deceased.

14. In the supplementary affidavit of Mary Mangoli sworn on 16/1/2023, she agrees with the mode of distribution proposed by Jason Wanyama Mangoli (now deceased) sworn on 12/1/2016.

15. Parties have filed their respective submissions on the proposed mode of distribution.

Objectors’ Submissions 16. It is the submission by the that the time of the deceased’s death his estate comprised of Bunyula/Namirama/1549 measuring 1. 5HA, 1550 measuring 1. 80HA, 1551 measuring 1. 19HA, 1552 measuring 1. 79HA and 1555 measuring 1. 07HA. They claim that the petitioners instituted a land dispute case at Navakholo Land Disputes Tribunal trying to object the sub division of Bunyula/Namirama/571 which case was dismissed and thereafter they preferred an appeal at the Provincial Land Disputes Appeal Tribunal Committee sitting at the provincial commissioner’s office at Kakamega on 9/11/2006 in favour of the deceased and the said decisions were adopted by the Chief Magistrate’s Court at Kakamega in Misc. Civil Award No. 128 of 2005 which order had not been appealed against.

17. They propose that the estate of the deceased be distributed as follows;a.LR No. Bunyula/Namirama/1549-to be registered in the names of John Okwisia in his own trust and in trust of the estate of the late Justus Wamwanda alias Mangoli, son of the deceased, and that Mary Mangoli should have life interest in it.b.LR No. Bunyula/Namirama/1550-to be registered in the names of William Mangoli Wawirec.LR No. Bunyula/Namirama/1551-to be registered in the names of Wycliffe W Mangolid.LR No. Bunyula/Namirama/1552-to be registered in the names of Enock Mangolie.LR No. Bunyula/Namirama/1555-to be registered in the names of Idris Barasa alias Bongo

Petitioners’ Submissions 18. It is their submission that though Bunyala/Namirama/571 is sub divided as per the records at the land registry, no actual subdivision was done on the ground and the transfer of Bunyala/Namirama/1548 and 1554 to Jason Wanyama and Kennedy Wamwanda respectively was a fraud.

19. They claim that Bunyala/Namirama/571 measures 33 acres and there is no contention that the deceased gave Jason Wanyama, being the first-born son, 7 acres from the 33 acres with a remaining 26 acres which they propose that it be shared as follows;a.Wycliffe Mangoli-4acresb.William Mangoli-4 acresc.Enock Wawire-4 acresd.Aggrey Wawire-4 acrese.Idris Bongo Barasa-4 acresf.Mary Mangoli 4 acres to hold in trust for John Okwisya being the share of his deceased father.g.The remaining 2 shares to be shared among the daughters.

Issues, Analysis and determination 20. Two things stand out as of note from the revocation of the grant, appointment of three administrators and the rival proposals on distribution. The first is that the appointment of administrators, qua administrators in intestacy, and the proposal do not accord to the terms of the will. The second is that the appointment of additional administrators signify departure from the terms of the will and trashes it. From that appreciation of the factual positions revealed by parties affidavits, submissions and record of the file, three issues arise for this court’s determination as follows;a.Whether the will of the deceased is valid and enforceableb.What properties comprise the estate of the deceasedc.How should the estate of the deceased be distributed?

Analysis Whether the will of the deceased is valid and enforceable 21. Though a cursory look of the exhibited will of the deceased, dated 2/4/2004, appears to meet the elements of a valid written will, as espoused under section 11 of the Law of Succession Act, in that it was apparently signed by the testator, and the signature of the testator, is so placed that it appears that it was intended thereby to give effect to the writing as a will, the will is attested by two competent witnesses, the protestors/ petitioners have disputed the validity of the will claiming that it is a forgery. No evidence has been tendered in proof of the alleged forgery.

22. The court however notes that the property bequeathed in the will is Bunyala/Namirama/571. A mutation plan was however adduced as evidence which shows that the deceased in the year 2004, 17 days after the date of the will, caused the subdivision of the property into eight portions namely Bunyala/Namirama/1548 measuring 3. 01HA, 1549 measuring 1. 51HA, 1150 measuring 1. 80HA, 1551 measuring 1. 19HA, 1552 measuring 1. 79HA,1553 measuring 1. 28HA,1554 measuring 1. 04HA and 1555 measuring 1. 07HA. With the subdivision, property known as Bunyala/Namirama/571 ceased to exist and therefore though the will is apparently valid, the testator revisited his bequest in terms of clause 6 and revoked it by dissipating the asset subject of the bequest.

23. The court take the view that by its orders of 5. 4.2011, appointing three administrators against the terms of the will and with tacit concurrence of the parties, assert the fact that the will was unenforceable. It is therefore the finding by the court that the will exhibited by the objector was revoked by the testator and the estate is thus due to be distributed in accordance with the rules of intestacy under Part V of the Law of succession Act

What properties comprise the estate of the deceased 24. Land can only be said to belong to the deceased when it is registered in his name as at the date the estate is sought to be administered. It was the assertion of Jason Wanyama Mangoli that following the subdivision of Bunyala/Namirama/571, the deceased transferred and assigned the four subtitles as follows:a.Jason Wanyama Mangoli, parcel No.1548b.Kennedy Omwanda Mangoli, parcel No. 1554. c.Aggrey Wawire Mangoli Parcel No. 1553, and to;d.John Okwisya (a minor) was transferred Parcel No. 1549

25. Jason Wanyama Mangoli confirms the transfers and assignment through the production of titles and certificates of official search for 1548 and 1554 and duly executed transfer forms in respect of 1549 and 1553.

26. The petitioners have contested that position and termed the same as a fraud. By dint of Section 26(1) (a) and (b) of the Land Registration Act No. 3 of 2012, registration is sacrosanct and extremely protected. It is only in two instances that a challenge to such title may be upheld. The first instance is where the title is obtained by fraud or misrepresentation to which the person so registered must be proved to have been a party. The second is where the certificate of title has been obtained through a corrupt scheme.

27. The law requires that fraud must not only be specifically pleaded but also strictly proved. And although the standard of proof of fraud is not proof beyond a reasonable doubt, it is higher than proof on a balance of probabilities required in other civil claims.

28. In the case of Kinyanjui Kamau v George Kamau [2015] eKLR, the court dismissed an appeal for failing to demonstrate fraud by holding as follows;“It is trite law that any allegations of fraud must be pleaded and strictly proved. see Ndolo v Ndolo (2008)1KLR (G & F) 742 wherein the court stated that “... we start by saying that it was the Respondent who was alleging that the will was a forgery and the burden to prove the allegation lay squarely on him. Since the Respondent was making a serious charge of forgery or fraud, the standard of proof required of him was obviously higher than that required in ordinary civil cases, namely; proof upon a balance of probabilities; but the burden of proof on the Respondent was certainly not one beyond a reasonable doubt as in criminal cases..” In case where fraud is alleged it is not enough to simply infer fraud from the facts.”

29. In this matter, no evidence of fraud has been availed by the petitioners beyond the bare allegation in the affidavits.

30. Though the registration of Bunyala/Namirama/1553 and 1549 in the names of Aggrey Wawire and John Okwisya were not completed, there is indication by way of Transfer of Land forms duly executed by the deceased that the deceased had the intention to complete the gift.

31. A gift is a gift, even if not completed provided there is shown an intention to make it. The learned author of Halsburys Laws of England, 4th Edition, Volume 20(1), at paragraph 67 provides useful guide on the law on incomplete gifts when he writes: -“Where a gift rests merely in promise, whether written or oral, or in unfulfilled intention, it is incomplete and imperfect, and the court will not compel the intending donor, or those claiming under him, to complete and perfect it, except in circumstances where the donor’s subsequent conduct gives the donee a right to enforce the promise. A promise made by deed is however, binding even though it is made without consideration. If a gift is to be valid the donor must have done everything which according to the nature of the property comprised in the gift, was necessary to be done by him in order to transfer the property and which it was in his power to do.”

32. This position has been applied by the Kenyan courts and one only needs to cite in Odunga’s Digest on Civil Case Law and Procedure Vol (III) Page 2417 at paragraph 5484 (d) e – 1 thus:“Generally speaking the moment in time when the gift takes effect is dependent on the nature of the gift; the statutory provisions governing the steps taken by the donor to effectuate the gift. (See in Re Fry Deceased {1946} CH 312 Rose: and Trustee Company Ltd v Rose {1949} CL 78 Re: Rose v Inland Revenue Commissioners {1952} CH 499 Pennington v Walve {2002} 1WLR 2075 Maledo v Beatrice Stround {1922} AC 330. Equity will not come to the aid of volunteer and therefore, if a donee needs to get an order from a Court of equity in order to complete his title, he will not get it. If, on the other hand, the donee has under his control everything necessary to constitute his title completely without any further assistance from the donor, the donee need no assistance from equity and the gift is complete. It is on that principle that in equity it held that a gift is complete as soon as the donor has done everything that the donor has to do that is to say as soon as the donee has within his control all those things necessary to enable him, complete his title. Where the donor has done all in his power according to the nature of the property given to vest the legal interest in the property in the donee, the gift will not fail even if something remains to be done by the donee or some third person. Likewise, a gift of registered land becomes effective upon execution and delivery of the transfer and cannot be recalled thereafter even though the donee has not yet been registered as a proprietor. (See Shell’s Equity 29ED Page 122 paragraph 3)” Emphasis added.

33. Based on the irrefutable position of Land law it follows that, as at the date of the death of the deceased, the four parcels of land; Bunyala / Namirama/ 1548, 1549, 1553 and 1554 did not belong to the deceased and were never part of the net estate. Those parcels of land must be excluded from the table of distribution.

34. It thus follows that the net estate of the deceased comprises only the parcels of land known as Bunyala/Namirama/1150, measuring 1. 80HA, 1551 measuring 1. 19HA, 1552 measuring 1. 79HA and1555 measuring 1. 07HA. only the four parcels of land fall for distribution to the persons entitled.

How should the estate of the deceased be distributed? 35. It is common ground that on his death on 11/11/2009, the deceased was survived by the following;1st Housea.Jason Wanyama Mangoli-(Son) (Deceased)b.Respar Khaemba-(Daughter)c.Fridah Wanyama-(Daughter)d.Herina Nanyama-(Daughter)e.Betina Nafula-(Daughter)f.Agneta Nawire (Daughter)(Deceased)g.Rose Omondi (Daughter)(Deceased)2nd Housea.William W. Mangoli-(Son)b.Idris Bongo Barasa-(Son)c.Margaret Nesacha-(Daughter)3rd Housea.Enock Wamwanda-(Son)b.Wycliffe Wekulo Mangoli-(Son)c.Asmin Nesacha 2-(Daughter)d.Julia Namachimba-(Daughter)e.Violet Katongane-(Daughter)4th Housea.Mary Mangoli (Widow)b.Justus Wamwanda (Son)(Deceased)-survived by John Okwisiac.Aggrey Wawire Mangoli (Son)d.Maureen Lusike(Daughter)

36. Being that the deceased left one surviving spouse and children, the provisions of section 35 of the Law of Succession Act will apply subject to the provisions of section 40. It mandates that where an intestate has left one surviving spouse and a child or children, the surviving spouse shall be entitled to the personal and household effects of the deceased absolutely; and a life interest in the whole residue of the net intestate estate.

37. The effect of section 35 of the Law of Succession Act is that the children of the deceased are not entitled to absolute access the entire net intestate estate so long as there is a surviving spouse. The children’s right to the property crystallizes upon the determination of the life interest following the death of the life interest holder or her remarriage. Prior to that, the widow would be entitled to exclusive right over the net estate.

38. The device is designed to counter the goal of succession law that property moves from one generation to the other and to safeguard the position of the surviving spouse. The ultimate destination of the net intestate estate where there are surviving children is the children, as the next generation from the parents. However, if the property passes directly to the children, in cases where there is a surviving spouse, he or she is likely to be exposed to destitution. This would particularly be the case where the surviving spouse was wholly dependent on the departed spouse and the children decide not to mind whether the spouse is taken care of. She would be left without any means of sustenance and thus a destitute.

39. In this cause, it is declared from this onset that the widow, Mary Mang’óli shall retain life interest over the property adjudged to comprise the estate. In addition, all the girls, even those who have not sworn affidavits have the right to equal share in the estate unless one decides to renounce the right

40. Having found and determined so, the court notes that there are four assets of the estate to be shared among beneficiaries drawn from four houses/households. In terms of section 40 of the Act, while taking into account the life interest of the widow and that some beneficiaries obtained their gifts intervivos, which the court must reckon with under section 42, and to respect the principle of equal sharing, the court, while further taking into account the views and proposals by the beneficiaries, takes the view and determines that each of the four parcels of land go to each of the four households.

41. It is of note that Jason Wanyama Mangoli renounced his interest in the estate of the deceased on the basis that he was given as a gift Bunyala/Namirama/1548 by the deceased during his lifetime. Even if he had not done so, the court is bound, as said before, under section 42; to take such gifts into account. The court does so, and for the avoidance of doubt, Jason Mangoli, kennedy Omwanda, Aggrey Mangoli and john okwisa having obtained gifts from the deceased, shall not be entitled to any share at the distribution.

42. That exclusion leaves the following as the beneficiaries entitled to share the net estate; -,a.Respar Khaemba-(Daughter)b.Fridah Wanyama-(Daughter)c.Herina Nanyama-(Daughter)d.Betina Nafula-(Daughter)e.Agneta Nawire (Daughter)(Deceased)f.Rose Omondi (Daughter)(Deceased)g.William W. Mangoli-(Son)h.Idris Bongo Barasa-(Son)i.Margaret Nesacha-(Daughter)j.Enock Wamwanda-(Son)k.Wycliffe Wekulo Mangoli-(Son)l.Asmin Nesacha 2-(Daughter)m.Julia Namachimba-(Daughter)n.Violet Katongane-(Daughter)o.Mary Mangoli (Widow)p.Maureen Lusike(Daughter)

43. The court is not certain that the list is all inclusive having noted that one Kennedy Omwanda who benefited from a gift by the deceased is not listed as a beneficiary unlike the rest. Parties have equally not disclosed to court with clarity on who occupies which part of the estate property to help with assigning the due shares.

44. For the said lack of clarity, the court invites the counsel and their respective clients to attend court on the 29. 01. 2024 and address the court on distribution as ordered above.

45. There shall be no orders as to costs

DATED, SIGNED AND DELIVERED AT KAKAMEGA THIS 1ST DAY OF DECEMBER, 2023PATRICK J O OTIENOJUDGE