[2019] KEELC 1660 (KLR)

REPUBLIC OF KENYA.

IN THE HIGH COURT OF KENYA AT BUNGOMA.

SUCCESSION CAUSE NO. 91 OF 2006.

IN THE MATTER OF THE ESTATE OF

JOHN WAMALWA MUTORO………………………………DECEASED

AND.

MARY NASIPWONDI WAMALWA…………………….PETITIONER

VERSUS.

MARGARET NAFULA WAMALWA…………………..RESPONDENT

JUDGMENT.

The deceased JOHN WAMALWA MUTORO died on 18th September 2002. At time of death the deceased was married to two wives. Mary Nasipwondi Wamalwa (1st wife) and Margaret Walota Wesonga (2nd wife). Both wives had each several children. At time the deceased who was a Mechanic had Assets of 2 parcels of Land in his name namely;

1. Bokoli/Kituni/594 Measuring - 5 Acres

2. Ndivisi/Muchi/1560 Measuring - 50ft x 200ft

He also had a liability of Kshs.320,000/= to Eric Mudenyo.

Mary Nasipwondi Wamalwa the 1st wife filed this Succession Cause and was issued with grant. Following an objection raised by the 2nd wife Margaret, on 9. 3.2017 Aroni J made the following order;

1. That the 2 widows of the deceased MARY NASIPWONDI WAMALWA and MARGARET NAFULA WAMALWA be and are hereby made co-administrators of the estate by Consent.

2. That Mr. Amona Wasike be removed as a respondent in the matter.

3. That parties to conclude distribution of Plot No. NDIVISI/MUCHI/1560.

4. That Mention be on 3/8/2017.

An application for confirmation was filed and both administrators and beneficiaries would not agree on a common mode of distribution. This Court by order made on 4. 1.2018 directed that each of the administrators to file their respective mode of distribution signed by the beneficiaries who agreed to their mode of distribution.

The 1st widow – MARY NASIPWONDI WAMALWA duly filed her distribution mode as hereunder;

1. The identification and shares of all persons beneficially entitled to the said estate have been ascertained and determined as follows:-

Name:Property: Share:

1st House:

1. (a) MARY NASIPWONDI WAMALWA NDIVISI/MUCHI/1560 WHOLE

(b) MARY NASIPWONDI WAMALWA BOKOLI/KITUNI/594 0. 5 ACRES

2) JANET NASIMIYU WAMALWA BOKOLI/KITUNI/594 0. 5 ACRES

3) DENSON MUTORO WAMALWA BOKOLI/KITUNI/594 0. 5 ACRES

4) MONICA NALIAKA WAMALWA BOKOLI/KITUNI/594 0. 5 ACRES

5) ENES NAFULA WAMALWA BOKOLI/KITUNI/594 0. 5 ACRES

6) BRIAN MEULE WAMALWA BOKOLI/KITUNI/594 0. 5 ACRES

7) CAROLYN NASABA WAMALWA BOKOLI/KITUNI/594 0. 5 ACRES

8) ALEX WANJALA WAMALWA BOKOLI/KITUNI/594 0. 5 ACRES

9) DORIS KHALAYI WAMALWA BOKOLI/KITUNI/594 0. 5 ACRES

10) LUCY NANJALA WAMALW BOKOLI/KITUNI/594 0. 5 ACRES

2nd House:

1. MARGARET NAFULA WAMALWA E. BUKUSU/E. SANG’ALO/1446 1. 0 ACRES

2. NAMWEYA WAMALWA E. BUKUSU/E. SANG’ALO/1446 0. 9 ACRES

3. MOSES WAMALWA E. BUKUSU/E. SANG’ALO/1446 0. 9 ACRES

4. MUTORO WAMALWA E. BUKUSU/E. SANG’ALO/1446 0. 9 ACRES

The 2nd widow – MARGARET NAFULA WAMALWA filed her mode of distribution dated 19. 9.2018 as hereunder;

PROPOSED DISTRIBUTION OF DECEASED’S LAND PARCEL NO. NDIVISI/MUCHI/1560 & BOKOLI/KITUNI/ 594.

NDIVISI/MUCHI/1560:

Name: Share:

1. MARY NASIPWONDI WAMALWA NIL

2. MOSES WAMALWA WHOLE

BOKOLI KITUNI/594

Name: Share:

3. MARY NASIPWONDI WAMALWA 0. 5 ACRES

4. JANET NASIMIYU WAMALWA 0. 5 ACRES

5. DENSON MUTORO WAMALWA 0. 5 ACRES

6. MONICA NALIAKA WAMALWA 0. 5 ACRES

7. ENES NAFUNA WAMALWA 0. 5 ACRES

8. BRIAN MEULE WAMALWA 0. 5 ACRES

9. CAROLYN NASABA WAMALWA 0. 5 ACRES

10. ALEX WANJALA WAMALWA 0. 5 ACRES

11. DORIS KHALAYI WAMALWA 0. 5 ACRES

12. LUCY NANJALA WAMALWA 0. 5 ACRES

13. SUSY NAMWEYA WAMALWA 0. 5 ACRES

14. MOSES WAMALWA NIL

15. MUTORO WAMALWA 0. 5 ACRES

16. MARGARET WALULU WESONGA 0. 5 ACRES

From the distribution the 1st Widow Mary Nasipwondi distributed 3 Parcels of Land;

1)Ndivisi/Muchi/ 1560

2) Bokoli/Kituni/564

3) E. Bukusu/Sang’alo/1446.

The 2nd Widow Margaret distributed;

1) Ndivisi/Muchi/1560

2) Bokoli/Kituni/594

From their respective mode of distributions, the Court determined that the main issue and substance of the objection is in relation to Parcel No. E. Bukusu/E. Sang’alo/1446. This Court directed that viva voce evidence be led by parties in respect to whether Parcel No. E. Bukusu/E. Sang’alo/1446 was part of the estate of the deceased. Margaret Wafula testified that she is the 2nd widow of the deceased and was married in 1983. She was working with Nzoia Sugar Company as a teacher and that on 5. 11. 1986 she bought the land E. Bukusu/1446 measuring 1. 51HA from Zakayo Musee Sangura at Kshs.32,000/=. She paid cash and entered into a land sale agreement which she produced as exhibit. In 2005 the seller transferred the land to her name and she is therefore the owner of the land and does not form part of the estate of the deceased.

Ow2 Zakayo Sangura Musee testified that he sold the land to Margaret measuring 4 acres at a purchase price of Kshs.32,000/=. He signed an agreement where there were witnesses. He transferred the land in 2005 to Margaret. He explains that the delay in transfer for 29 years was due to delay by Margaret. He testified that at that time Margaret did not tell him she was married. Ow3 Fernandis Nyongesa Barasa testified he was the one who wrote town the agreement and he signed the agreement. Upon Cross-examination by Khakula Advocate he confirmed that the agreement that is exhibit in court is not the same as the one he wrote as the name of John Mutoro has been added.

Mary Nasipwondi Wamalwa the 1st widow testified and her witness statement dated 28. 2.2018 adopted in her evidence. She stated that the deceased had 2 wives herself and Margaret. She had 9 children and Margaret had 3 children. The deceased at the time of death had parcels of land Bokoli/Kituni/594 measuring 5 acres which was ancestral and on which deceased set for her, her home, Plot No. Ndivisi/Muchi/1560 Measuring 50 x 200ft a Plot at Webuye Town; and E. Bukusu/E. Sang’alo/1446 measuring 3. 7 acres where he established a home for Margaret the 2nd Widow.

Pw2 Jairus Talula Wekesa he testified that the deceased was his cousin. He testified that the land at Sang’alo belonged to the deceased who setup a home for 2nd Widow and is therefore part of the estate. Pw3 Peter Wamalwa Mutoro the brother of the deceased testified that the deceased had bought the land at Sang’alo and settled Margaret on that land. He testified that during the “Lufu” Meeting the deceased 3 properties were identified and beneficiaries noted.

From the evidence I find that it is not in dispute that the deceased had 2 wives. Mary and Margaret. There is no dispute that Mary has 9 children and Margaret 3 children. It is also not in dispute that the deceased’s ancestral land is Bokoli/Kituni/1446 and that he purchased plot at Webuye Town measuring 50ft x 200ft known as Ndivisi/Muchi/1560. Margaret (2nd Widow) testified that the land E. Bukusu/Sang’alo/1446 is her sole property and does not form part of the estate. In support of her contention she produced a sale agreement dated 5. 11. 1996. The agreement shows that buyer as Margaret Wafula Wesonga and the Seller as Sangura Musee Zakayo and witnesses as Jane Machuma who signed together with Identity Number indicated. John Wamalwa Mutoro whose Identity is given but has not signed and Maurice Mafura Kisaka whose Identity Number is indicated and Signed. The clerk Fernandis Nyongesa Barasa who has also signed. On being shown the agreement produced, Fernandis Ow3 testified that all the people had signed in the agreement and John Mutoro was not indicated in the agreement he prepared and that his name has been added later. He confirmed that the agreement produced by the 2nd Widow is not the same as the one he drew. In short he disowned the agreement produced as a genuine document he drew and was signed on 5. 11. 2986.

This therefore brings into question the genuiness of the sale agreement produced by 2nd Widow. It is also noted that she was already married in 1986 but the seller informed the court that he did not know that she was married, which is curious because in her agreement the name of the deceased is indicated as a witness but was never signed.

The alleged transfer of the land parcel No. E. Bukusu/E. Sang’alo/1446 was done in 2005. The deceased died in 2002. There is no dispute that he had set a home for 2nd Widow on that parcel of land, as at time of deceased’s death, I am satisfied that he had 3 parcels of land, the ancestral land Bokoli/Kituni/594 where he had built for and settled the 1st Widow Mary; E. Bukusu/Sang’alo/1446 where he had built for and settled the 2nd Widow Margaret, but title had not been obtained and plot in Webuye Ndivisi/Muchi/1560. It is my finding that the assertion by the 2nd Widow Margaret that Sang’alo property was hers is an afterthought and the documents relied on for her claim not genuine.

I therefore find that at the time of death the deceased John Mutor had the following assets which form his estate;

1. Bokoli/Kituni/594 (Namukenge Village) - 5 Acres

2. Ndivisi/Muchi/1560 (Webuye Town) - 50ft x 200ft

2. E. Bukusu/E. Sang’alo/1446 (Mwibale Sang’alo) - 3. 7 Acres

I have considered the mode of distribution filed by the 1st Widow and 2nd Widow;

I hereby confirm the grant on the following mode of distribution;

1. Ndivisi/Muchi/1560

The Plot at Webuye Town to be divided equally between the 1st Widow Mary Nasipwondi Wamalwa and 2nd Widow Margaret Wafula Wamalwa for and on behalf of their respective children.

1ST HOUSE:

Bokoli/Kituni/594

1. MARY NASIPWONDI WAMALWA BOKOLI/KITUNI/594 0. 5 ACRES

2. JANET NASIMIYU WAMALWA BOKOLI/KITUNI/594 0. 5 ACRES

3. DENSON MUTORO WAMALWA BOKOLI/KITUNI/594 0. 5 ACRES

5. MONICA NALIAKA WAMALWA BOKOLI/KITUNI/594 0. 5 ACRES

6. ENES NAFULA WAMALWA BOKOLI/KITUNI/594 0. 5 ACRES

7. BRIAN MEULE WAMALWA BOKOLI/KITUNI/594 0. 5 ACRES

8. CAROLYN NASABA WAMALWA BOKOLI/KITUNI/594 0. 5 ACRES

9. ALEX WANJALA WAMALWA BOKOLI/KITUNI/594 0. 5 ACRES

10. DORIS KHALAYI WAMALWA BOKOLI/KITUNI/594 0. 5 ACRES

11. LUCY NANJALA WAMALWA BOKOLI/KITUNI/594 0. 5 ACRES

2ND HOUSE:

3. E. Bukusu/E. Sang’alo/1446

1. MARGARET NAFULA WAFULA E. BUKUSU/E. SANG’ALO/1446 1. 0 ACRES

2. NAMWEYA WAMALWA E. BUKUSU/E. SANG’ALO/1446 0. 9 ACRES

3. MOSES WAMALWA E. BUKUSU/E. SANG’ALO/1446 0. 9 ACRES

4. MUTORO WAMALWA E. BUKUSU/E. SANG’ALO/1446 0. 09 ACRES

Any title transferred made on the property of the deceased before confirmation of the grant by any person cannot be anything but illegal and therefore such transfer are null and void.

Dated at Bungoma this 24th day of September, 2019.

S.N. RIECHI

JUDGE.