[2019] KEHC 5805 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KAKAMEGA

SUCCESSION CAUSE NO. 607 OF 2009

IN THE MATTER OF THE ESTATE OF JOHN MUSAMBAYI KATUMANGA (DECEASED)

AND

CATHERINE MUNJERESA MAKOKHA....PROTESTOR/PLAINTIFF

VERSUS

ZEDEKIA SAKWA.......................................PETITIONER/DEFENDANT

R U L I N G

1. The petitioner has filed summons for confirmation of grant dated 4th March, 2016 seeking that the grant of letters of administration dated 24th March, 2010 be confirmed. The application is supported by the affidavit of the Petitioner in which he is proposing that land parcel No. Butsotso/Shikoti/656 be distributed as follows:-

- All 7 sons of the deceased from both households to get 4 acres each.

- Three daughters of the deceased from the 1st house to share 2. 5 acres equally.

- Five daughters of the deceased from the 2nd house to share 2. 5 acres equally.

2. The mode of distribution proposed by the petitioner was opposed by the protestor who has filed an affidavit of protest dated 4th April, 2016 in which she is proposing that each of the 7 sons of the deceased do get 3 acres each and each of the 8 daughters of the deceased to get 1. 5 acres each.

3. The matter proceeded by way of viva voce evidence. The protestor testified as the plaintiff and called one witness, Isaya Ambundo PW2. The petitioner testified as the defendant and called no witness.

Facts not in dispute –

4. The succession cause herein relates to the estate of the late Makokha Nyirisi who died on 5/7/2009 and left behind parcel No. Butsotso/Shikoti/656 measuring 33 acres. He had two wives Elizabeth Andati (deceased) who was the first wife and Catherine Makokha, the 2nd wife (protestor herein). The first wife had 8 children of whom 5 are sons and 3 are daughters. The 2nd wife (protestor) has 7 children of whom 2 are sons and 5 are daughters. The petitioner is a son to the first wife.

5. The petitioner also left behind shares with Mumias Sugar Co. Limited, a posho mill plot at Elesero market and cane proceeds on account No. 5263045 Plot 05 and account 36257 field No. 37. There is no dispute that these are to go to the protestor. The dispute is therefore on distribution of land parcel No. Butsotso/Shikoti/656.

Case for the Protestor –

6. The evidence of the protestor was that before the deceased died he had called elders to divide his land between the first house and the second house. That the sub-division was witnessed by the area Chief and the area Assistant Chief. A village elder PW2 was there. That the first house was given 20 acres while her house was given 13 acres. A boundary was put and marked with sisal plants. That later on the sons of the first house uprooted the sisal plants that marked the boundary. She now proposes that the estate be shared in accordance with the demarcation which the deceased carried out. Therefore that the land be shared out between the two houses.

7. The evidence of Isaya Ambundo PW2 was that the deceased was a member of his clan. That on the 6/9/2006, he was called to the home of the deceased to witness the demarcation of the deceased’s land. That the deceased said that he wanted to demarcate his land between his two houses with the first house getting 20 acres and the second house getting 13 acres. That he, PW2, was among the people who were entrusted to demarcate the land by planting sisal plants. That they demarcated the land into two portions whereby 20 acres were allocated to the first house and 13 acres to the second house. However that the family members from the first house boycotted the exercise and uprooted the boundary marks.

Case for Petitioner –

8. The evidence of the petitioner was that on the 20/11/2004 the deceased called the Assistant Chief to his home. He said that he wanted to distribute his land to his sons with each son getting 4 acres and for him to remain with 5 acres. That an agreement, D.Ex 1, was written down. However that some family members did not agree with the distribution. Later the deceased reneged on the agreement. A brother to the petitioner called Arthur sued the deceased before the Lurambi Land Disputes Tribunal. The tribunal ordered the deceased to give each of his sons 4 acres of the land.

9. The petitioner thereby proposes that each of the sons be given 4 acres of the land and the remaining 5 acres to go to their mothers to be shared by his sisters from both houses. The petitioner produced the proceedings of the tribunal as exhibit, D.Ex 2. He conceeded in cross-examination that he had no evidence that the ruling of the tribunal was adopted in court as a judgment of the court as was required by the Land Disputes Tribunal Act. He also conceded that the deceased has not signed the alleged agreement entered into on 20/11/2004, D.Ex 1.

Submissions –

10. The advocates for the protestor, Amasakha & Co. Advocates, submitted that the ruling of the Land Disputes Tribunal was not adopted as a judgment of the court and is therefore unenforceable. That there was no transfer of the land in pursuance of the agreement of 20/11/2004. That the fact that the sons of the deceased filed a suit before the tribunal to compel the deceased to give them land shows that the deceased had changed his mind and was not willing to sub-divide the land as stated in the agreement. Therefore that the deceased did not give his sons any land as alleged. That the deceased died intestate and the estate should be administered as intestate.

11. Further that the deceased was polygamous and his estate should be distributed in accordance with section 40 (1) of the Law of Succession Act. That the mode of distribution proposed by the protestor is fair and equitable as opposed to the discriminatory mode of distribution proposed by the petitioner.

12. The advocate for the petitioner, M. Kiveu Advocate, on the other hand submitted that the deceased had distributed his estate before he died and gave each of his sons 4 acres each. That the remaining 5 acres that the deceased had allocated to himself was to be shared by the deceased’s daughters.

Analysis and Determination –

13. The issues for determination in the matter are –

(1) Whether the deceased distributed the suitland to his sons before his death.

(2) How the estate ought to be distributed.

(a) Whether the deceased distributed the estate –

14. The petitioner contends that the deceased was ordered by the Land Disputes Tribunal to give each of his sons 4 acres each of the suitland and that the remaining 5 acres ought to be given to the deceased’s daughters.

15. The protestor on the other hand says that the deceased had distributed the land and given the 1st house 20 acres and the 2nd house 13 acres.

16. The petitioner conceeded in cross-examination that the deceased did not sign the alleged agreement, D.Ex 1 dated 20/11/2004. The fact that the document is not signed by the deceased means that it is not a valid agreement. It is thereby not an enforceable document. It cannot be used as a basis of this suit that the deceased distributed the land to his sons.

17. The proceedings before the tribunal, D.Ex 2, indicates that the deceased had categorically refused to give land to his sons as they had demanded in the suit. The tribunal all the same proceeded to rule against the deceased and made an order for him to give each of his sons 4 acres each of the suitland. However the ruling of the tribunal was not adopted as a judgment of the court as required by the provisions of the then Land Disputes Tribunal Act (repealed). The ruling was thereby not a valid judgment. It is therefore unenforceable. It cannot be the basis of this suit.

18. Besides that the tribunal had no powers to adjudicate on the deceased’s land. The deceased’s land was registered under the Registered Land Act Cap 300. The jurisdiction of the tribunal was as provided in section 3 of the Land Disputes Tribunal Act (now repealed) section 3 that stipulated that:-

“3 (1) Subject to this Act, all cases of a civil nature involving a dispute as to-

(a) The division of or the determination of boundaries to, land including land held in common;

(b) A claim to occupy or work land, or,

(c) Trespass to land, shall be heard and determined by a Tribunal established under section 4. ”

19. The jurisdiction of the tribunal under this section did not give powers to the tribunal to deal with land registered under the Land Registration Act. In the matter of the estate ofZabeth Wanza Mutua (Deceased) [2012] eKLR the court held that:-

“In any event, that decision of the Land Disputes Tribunal is contrary to specific provisions of the enabling Act. The provisions regarding the Tribunal under section 3 of the Land Disputes Tribunal Act (Cap 303 A) do not confer powers to deal with land registered under the Registered Land Act (Cap 300), or to determine rights of ownership to land. A perusal of the award shows that the Tribunal purported to determine ownership to land and also dealt with land which was registered under the Registered Land Act. The Tribunal went beyond the powers conferred on it by the law. This court cannot be used as a conduit for enforcing illegal or unlawful orders.”

The position was adopted in the case of Daniel Mose Nchore & Another –Vs- Nyamache Land Disputes Tribunal & 2 Others [2016] eKLRandMuthoni Van Someren –Vs- Kieni West Land Disputes Tribunal & 4 Others (2014) eKLR.

20. The tribunal thereby had no jurisdiction to deal with the question sub-division of the land of the deceased as it was registered under the Registered Land Act. The tribunal had no powers to order the deceased to distribute the land to his children. The award of the tribunal could not thereby stand.

21. There was no evidence that the deceased had distributed his land to his sons as contended by the petitioner.

22. On the other hand there is no credible evidence that the deceased had distributed land between his two houses as contended by the protestor. The protestor stated that the area Chief and the Assistant Chief were there when the land was demarcated. The said officials were not called as witnesses in the case. There was no record of the demarcation produced in court. The contention by the protestor is thereby dismissed.

In view of the foregoing it is my finding that the deceased died intestate. His estate should therefore be distributed as intestate property.

(b) How the estate should be distributed –

23. The deceased was polygamous. The distribution of his estate is thus governed by the provisions of section 40 (1) of the Law of Succession Act that provides that:-

“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.”

24. There are 8 children in the house of the first wife. The first wife is deceased. That means that there are 8 units in the 1st house. There are 7 children in the 2nd house and one surviving spouse. That also makes it 8 units in the second house.

25. If the court were to go by the mode of distribution proposed by the petitioner then the 1st house will walk away with 22. 5 acres while the 2nd house will have 10. 5 acres. This is not proportionate to the number of children in each house. Worse still, the mode of distribution proposed by the petitioner favours the sons to the detriment of the daughters. It has to be noted that the Law of Succession Act does not discriminate against daughters when it comes to distribution of the estate of a deceased person. In the Estate of Solomon Ngatia Kariuki (Deceased) (2008) eKLR, Makhandia J. (as he then was) held that:-

“The Law of Succession Act does not discriminate between the female and male children or married or unmarried daughters of the deceased person when it comes to the distribution of his estate. All children of the deceased are entitled to stake a claim to the deceased's estate. In seeking to disinherit the protestor under the guise that the protestor was married, her father, brothers and sisters were purportedly invoking a facet of an old Kikuyu Customary Law. Like most other customary laws in this country they are always biased against women and indeed they tend to bar married daughters from inheriting their father's estate. The justification for this rather archaic and primitive customary law demand appears to be that such married daughters should forego their father's inheritance because they are likely to enjoy inheritance of their husband's side of the family.”

The daughters of the deceased in this case are equally entitled to inherit from the estate of their father just like their brothers.

26. A distribution of the estate ought to be fair to all the beneficiaries. The mode of distribution that commends itself to me is the one proposed by the protestor. In that proposal the 1st house will get a total of 19. 5 acres while the 2nd house will get 13. 5 acres. I am of the considered view that that mode of distribution is fair to all. The daughters in the estate have not complained that they want more than what is proposed by the protestor. The court therefore makes an order for land parcel No. Butsotso/Shikoti/656 to be distributed as proposed by the protestor as follows:-

1. Marble Sika (Daughter-in-law) - 3 Acres

2. Author Makokha (Son) - 3 Acres

3. Saul Makokha (Son) - 3 Acres

4. Zedekial M. Sakwa (Son) - 3 Acres

5. Francis Makokha (Son) - 3 Acres

6. Mark Makokha (Son) - 3 Acres

7. Zadock Makokha (Son) - 3 Acres

8. Dorcas Akosa (Daughter) - 1. 5 Acres

9. Irene Khatenje (Daughter) - 1. 5 Acres

10. Truphena Awinja (Daughter) - 1. 5 Acres

11. Ruth Shikoloti (Daughter) - 1. 5 Acres

12. Jerida Omuhonje (Daughter) - 1. 5 Acres

13. Phyllis Kilo (Daughter) - 1. 5 Acres

14. Gladys Shisia (Daughter) - 1. 5 Acres

15. Nora Nangabo (Daughter) - 1. 5 Acres

27. The shares of Mumias Sugar Co. Limited, the proceeds of sugarcane on A/c. No. 5263045 Plot No. 5 and A/C. No. 36257 field No. 37 (and the posho mill and plot at Elesero Market if at all in existence), all to go to the protestor, Catherine Munjeresa Makokha.

Orders accordingly.

Delivered, dated and signed in open court at Kakamega this 11th day of July, 2019.

J. NJAGI

JUDGE

In the presence of:

No appearance for protestor/plaintiff

Mr. Amasakha for petitioner/defendant

Parties:

Petitioner - absent

Protestor - absent

Court Assistant - George

Beneficiaries - absent

30 days right of appeal.