[2022] KEHC 13884 (KLR)

In re Estate of James Munyasia Mukisu-Deceased (Succession Cause 29 of 1998) [2022] KEHC 13884 (KLR) (7 October 2022) (Judgment)

Neutral citation: [2022] KEHC 13884 (KLR)

Republic of Kenya

In the High Court at Bungoma

Succession Cause 29 of 1998

SN Riechi, J

October 7, 2022

IN THE MATTER OF THE ESTATE OF JAMES MUNYASIA MUKISU-DECEASED VINCENT CHARLES MUNYASIA MARTIN WESONGA MUNYASIA JANET NABWILE MUNYASIA................................PETITIONERS VERSUS JOHN KWOBA MUNYASIA.......................................PROTESTOR

Judgment

1. James Munyasia Mukisu died on September 17, 1978 and a petition for grant of letters of administration was presented by Vincent Charles Munyasia. The protestor filed an application for revocation of grant on grounds that the same had been obtained through concealment of material facts. The court thereafter ordered Martin Wesonga, Janet Nabwile and the protestor be made co-administrators and each party to file their proposed mode of distribution.

2. Vincent Munyasia filed his proposal as provided hereunder. It is to be noted that this mode is supported by the 1st, 3rd and 4th houses represented by Vincent Munyasia, Martin Wesonga Munyasia and Janet Nabwile Munyasia respectively who have appended their signatures on the proposal.W Bukusu/s Mateka/9961. Vincent Munyasia 9. 5 Ha2. John Kwoba 9. 0 Ha3. Martin Wesonga Munyasia 7. 0 Ha4. Janet Nabwile Munyasia 2. 4 Ha5. Catholic Diocese of Bungoma-Chenjeni Church 0. 10 HaPlot No 12-mateka MarketVincent Munyasia 0. 10 Ha

3. On his part, the protestor filed his mode as hereunder and supported by Martin Wesonga Munyasia, Resolyine Anyango, Victoria Khisa and Gentrix Wanjala who executed the proposed list.W Bukusu/s Mateka/9961. Vincent Munyasia 10 Acres2. John K Munyasia 10 Acres3. Emmanuel Simiyu Munyasia (son to late Titus Munyasia) 10 acres4. Martin Wesonga Munyasia 10 acres5. Gabriel Sisungo Munyasia 10 acres6. Roselyne Anyango (wife to late Charles munyasia) 10 acres7. Antonina N Mang’oli 1 acres8. Sophia Okongo 1 acre9. Mary Naliaka 1 acre10. Clementine Masinde 1 acre11. Sons and daughters of Anne Nasimiyu(deceased) 1 acre12. Victoria khisa 1 acre13. Everlyne Nabangala 1 acre14. Catherine Nyongesa 1 acre15. Gentrix N Wabwile 1 acre16. Clare Nekesa 1 acre17. Janet Nabwile 1 acre

4. In response to the protestor’s proposal, the following renounced their share in the estate through filing affidavits; Mary Naliaka Munyasia, Sophia Nafuna Okongo, Clementina Namalwa and Antonina Akumu Mang’oli and proposed their respective shares to be shared amongst their siblings in the first house represented in these proceedings by Vincent Munyasia.

5. In a similar vein, Catherine Nawanjaya, Everlyne Nabangala Munyasia and Clare Nekesa renounced their respective shares in favour of their biological brother from the 3rd house Martin Munyasia.

6. The parties later testified in court in support of their proposals. The protestor testified as OW-1. He disputed the fact that the deceased distributed his estate to each family prior to his death. That the 1st petitioner left out the deceased daughters. That the petitioner’s proposal is not equitable.

7. In cross examination, he stated that at the time of his death, the deceased had not allocated any part of his estate to any house. That they were staying in the same compound before each house moved to a different compound after sub-division by the 1st petitioner. That his distribution is according to beneficiaries and not in conformity with houses. He stated that he bought 8 acres for himself and not given to him by his father. He says that if the sub-division is done according to house, he will get 5 acres and lose out 10 acres.

8. OW-2 Gabriel Sisongo Munyasia stated that prior to his father’s death, all the deceased’s widows stayed in one compound with the remaining portion being reserved for farming. That after his father’s death and while admitted in hospital, Vincent Munyasia sub-divided the land into three portions for each family after one of the widows left.

9. In cross examination, he stated that his mother’s house will loses out because they are many. That there are 3 boundaries created by Vincent. He supports the protestor’s proposal.

10. OW-3 Peter Juma Munyasia stated that he is the son to the late Anna Nasimiyu Munyasia who was a sister to the protestor. He stated that his mother was not married and therefore supports the proposal by the protestor which allocated his mother 1 acre.

11. In cross examination, he stated that he will be satisfied if he is given 1 acre since he stayed in that parcel of land all his life.

12. For the petitioner’s PW-4, Vincent Munyasia, the objector’s brother proposed that the estate be shared out per house in the acreage indicated where the deceased had planted boundaries. That he had been allocated plot number 12 but the clan asked to surrender it to the 3rd house provided his money paid to the county government is refunded.

13. In cross examination, he stated that they were peaceful until the year 196 when John raised an issue when the clan meeting was held. That he and his brother gave land to the church after their father died. That plot number 12 has been constructed by people who grabbed it whereas he had been given by his father and the same transferred to his name. That Janet from the 4th house has been provided for since she was the only daughter in the house.

14. PW-5 Wycliffe Khisa stated that he is a grandson to the deceased and was present when the deceased carried out demarcation to his parcel of land in 1978. That he assisted the deceased in the presence of Bendicto Mukhayo Situma and Charles Munyasi (deceased) and the widows were duly informed by the deceased and asked to move to their respective portions. That after the deceased’s death, the fourth widow Scholastica Munyasia moved out leaving her portion to be shared out between the 1st and 2nd houses. That the widows moved to their respective parcels after his death and have been staying thereon since then.

15. In cross examination, he stated that the deceased was assisted by his son Charles and Benedicto during demarcation and the boundaries are still existent on the ground. The deceased gave land to his wives and children without distinguishing the daughters. That Janet was given land because she was the only daughter in their house. Part of the land was given to the church. That his grandfather had 4 wives including one Schola whom he inherited from his late brother.

16. PW-6 Luka Kisalo Lusaka stated that he was present when the deceased carried out demarcation of his land which boundaries exist to date save for the land apportioned to scholastic which was removed after she moved away with her daughter Janet.

17. In crosse examination, he stated that he was present in the 1996 meeting which resolved that the boundaries as placed by the deceased be maintained. That in the portions, the deceased had not indicated acreage but boundaries placed.

18. For the 3rd petitioner, Martin Wesonga-PW-7 testified that he occupies a specific position on the ground according to the boundaries placed by the deceased wherein he agrees with the proposal by Vincent Munyasia.

19. In cross examination, he stated that he is contented with the portion given to him and his siblings and mother. That he does not know the present state of occupation of plot number 12.

20. Thereafter, parties filed their written submissions but only the 1st petitioner complied and raised the following issues;1. Whether the deceased established his wishes on how his and was to be sub-divided.2. Which mode of distribution is fair in the circumstances and in line with the deceased’s wishes.

21. On the first issue, it is submitted that under the provisions of sections 29, 40 and 42 of cap160, the deceased ha during his life time placed sisal boundaries on his land in the year 1978 according to his wives. That the families have been living peacefully until 1996 when the protestor raised complaints over the estate.

22. It is submitted that the court ought to interpret the provisions of section 40 to uphold the deceased’s intention and disregard the protestor’s proposal which is intended to bring hardship and absurdity. In this regard, the authority in Scolastica Ndululu SuravAgnes Nthenya Suva(2019)eKLR has been cited.

23. On the second issue, it is submitted that the protestor’s proposed mode of distribution ignores the deceased’s wishes.

24. Upon careful scrutiny, the court proposes to deal with the issues as raised and identified by the 1st petitioner as reproduced above. It is a fact that the deceased was polygamous and had 2 parcels of land.

25. The issue of contention herein is whether the deceased had clearly indicated how he intended his estate to sub-divided and or occupied considering that the deceased died before the enactment of cap 160and the laws of that community regarding distribution are applicable. The 1st petitioner and his witnesses state that the deceased had clearly delineated the boundaries and marked them by planting a sisal hedge separating the parcels before his death. This contention is supported by the evidence of PW-5 and PW-6 who stated that they were present when the demarcation was being carried out in the presence of Charles, the deceased’s son and one Benedicto.

26. The above position is strongly contested by the protestor who states that at the time of his demise, all the widows were staying in the same compound and the alleged sub-division was created by Vincent and that he does not stay within his boundary.

27. It was the witness’ clear testimony that even though the deceased had sub-divided his land according to wives, he did not indicate the acreage of the respective parcels to each house so that it would be impossible for the court to ascertain with precision the parcel allocated to each house nor the land valued.

28. In this matter, it is not contested that a clan meeting was held in the year 1996 to settle the matter of administration of the estate and align the distribution thereof. Translated minutes of the meeting were tabled in court and from the meeting among the resolutions arrived at was that;"…..the late james sirengo munyasia actually phiysically carried out subdivision of his land among his wives before he died. The clan committee was satisfied with the evidence adduced not only by Benedicto Mukhayo Situma and Mama Amina Munyasia, but also by the presence of the tall and old sisal boundaries on the farm seen when the committee went round. These boundaries were later extended to subdivide Sikolia’s portion between Rosa and Paulina since Sikolia had deserted the home. The clan was also satisfied that sine the death of James Sirengo Munyasia, each mother had been tilling the plot assigned to her by the late husband since 1978. On cross examination by the chairman, John Kwoba confirmed that allocation was done by the father although he did not question him.

29. The above passage is very instructive in the determination of this matter in that it goes to show the factual situation regarding occupation for two reasons; firstly, the sub-division of the plot was done by the deceased in the presence of the protestor and secondly; the protestor was in the meeting and was subjected to cross examination. It is worth noting that the meeting took place in the year 1996 while the deceased had passed on in the year 1978 and at the time of the meeting, the boundaries were still in existence and each house occupying a specified portion of land.

30. Having gone through the affidavits filed herein, the oral testimony given in court and the law as stated in the preceding paragraphs, I am satisfied that prior to his death, the deceased had distributed his land as he wished and as posited by the petitioners.

31. This court finds that the deceased’s subdivision and allocation of his land is reflected in the proposal by the 1st petitioner. I therefore distribute the estate as follows;W Bukusu/s Mateka/9961. Vincent Munyasia 9. 5 Ha2. John Kwoba 9. 0 Ha3. Martin Wesonga Munyasia 7. 0 Ha4. Janet Nabwile Munyasia 2. 4 Ha5. Catholic Diocese of Bungoma-Chenjeni Church 0. 10 HaPlot No. 12-mateka MarketVincent Munyasia 0. 10 Ha

32. This being a family matter, each party shall bear its own costs.

DATED AT BUNGOMA THIS 7TH DAY OF OCTOBER, 2022. S.N. RIECHIJUDGE