[2023] KEHC 25030 (KLR)

In re Estate of John Wandera Magonda (Deceased) (Succession Cause 237 of 2010) [2023] KEHC 25030 (KLR) (10 November 2023) (Ruling)

Neutral citation: [2023] KEHC 25030 (KLR)

Republic of Kenya

In the High Court at Busia

Succession Cause 237 of 2010

WM Musyoka, J

November 10, 2023

IN THE MATTER OF THE ESTATE OF JOHN WANDERA MAGONDA (DECEASED)

Ruling

1. Part of the estate herein was distributed by way of a consent that was recorded before F. Tuiyott J, on 8th May 2013. The assets distributed vide that consent were Samia/Luanda-Mudoma/383, Kisumu Nyalenda “A”/1053, Kisumu/Korando/4163 and Mombasa Municipality/Changamwe/Tenant Purchase House No. 82.

2. Through the consent of 8th May 2013, the parties invited the court to make a decision on distribution, with respect to Samia/Luanda-Mudoma/461, 1420, 1436 and 1482; Funyula Town Council Plot No. 58; and Kisumu Municipality Block 10/10. Oral evidence was to be led on the same. The parties were to discuss and agree on the division of Samia/Luanda-Mudoma/656 and on a plot at Namboboto Trading Centre. F. Tuiyott J took evidence on the said contested assets, and delivered a ruling, on 12th June 2014, where it was directed that Kisumu Municipality Block 10/10 be shared between the 2 houses, on a ratio to be worked out on the basis of section 40(1) of the Law of Succession Act, Cap 160, Laws of Kenya; Kisumu Municipality Block 4/392 was devolved to Cecilia Mudondo Wandera; Samia/Luanda-Mudoma/461 and 1436 was devolved on Peter, Simon, Gerald, Winston and Isaac; Samia/Luanda-Mudoma/1420 be shared between the 2 houses, on a ratio to be worked out on the basis of section 40(1) of the Law of Succession Act; Samia/Luanda-Mudoma/1422 be shared between the 2 houses, on a ratio to be worked out on the basis of section 40(1) of the Law of Succession Act; and Funyula Town Council Plot No. 58, on a ratio to be worked out on the basis of section 40(1) of the Law of Succession Act.

3. Cecilia Mudondo Wandera was unhappy about the determination of 12th June 2014, and sought to have it reviewed, vide a summons dated 24th February 2015, on various grounds. The same was placed before F. Tuiyott J, who dismissed it, in a ruling that was delivered on 7th July 2015.

4. She then moved to the Court of Appeal, against the ruling of 7th July 2015. Her appeal was Kisumu CACA No. 99 of 2015. The Court of Appeal, in its judgment of 30th March 2017, was of the view that F. Tuiyott J was right, and affirmed his decision of 7th July 2015. A consent was filed at the appellate court, whose effect was to interfere with the distribution that had been made by the consent of 8th May 2013, and the distribution ordered by F. Tuiyott J, by his ruling of 12th June 2014, so that Cecilia Mudondo Wandera and her children were to take Samia/Luanda-Mudoma/1420 and 1422; ½ share of Namboboto Trading Centre Plot No. 1C and ½ share of Kisumu/Korando/4163. Matilda Wandera and her children were to take Samia/Luanda-Mudoma/383, 461 and 1436; ½ share of Namboboto Trading Centre Plot No. 1C; ½ share of Kisumu/Korando/4163 and Funyula Town Council Plot No. 58. The consent left distribution of the rest of the assets, in the name of the deceased, to the appellate court, to be distributed in its judgment. That consent was endorsed in the judgment as an order of the appellate court. The assets that the appellate court identified as outstanding for distribution, as per the consent, were Kisumu Nyalenda “A”/1053; Samia/Luanda-Mudoma/656 and 1482; Mombasa house; Kisumu house; Funyula kiosks Nos. 41, 49, 54, 57 and 59; and Busia Jua Kali Association Plot No. 387. The said assets were, however, not distributed by the appellate court, in its judgment, for valid documents of title and valuations had not been made available. For that reason, the issue of distribution of those assets was remitted to the High Court.

5. To give effect to the judgment of the Court of Appeal, of 30th March 2017, Matilda Wandera filed a summons for confirmation of grant, dated 13th August 2018. A protest to that summons was filed by Cecilia Mudondo Wandera, dated 20th December 2018. The said summons for confirmation of grant was dismissed by Karanjah J, in a ruling delivered on 20th April 2021, for being premature, as the parties were yet to agree on a mode of distribution.

6. The dismissal of the said application on 20th April 2021, paved way for the filing of the summons for confirmation of grant, dated 30th June 2022, which I am now called upon to determine. It is filed at the instance of Cecilia Mudondo Wandera, and her affidavit in support was sworn on 1st July 2022. She identifies 17 individuals as the survivors of the deceased. Their relationship to the deceased is not disclosed, but I suppose that they are his widows and children. She has identified the assets that were distributed by the consent dated 7th February 2017, which was adopted by the Court of Appeal in its judgment of 30th March 2017, and whose purport I have set out in paragraph 4 hereabove. The assets proposed for distribution are listed as Mombasa Municipality/Changamwe/Tenant Purchase House No. 82; Kisumu Municipality Block 10/10; Kisumu Nyalenda “A”/1053; Samia/Luanda-Mudoma/1482; Funyula kiosks Nos. 41, 49, 54, 57 and 59; and Busia Jua Kali Association Plot No. 387. It is proposed that Samia/Luanda-Mudoma/656, being ancestral property be shared out equally between the 2 houses. It is proposed that Mombasa Municipality/Changamwe/Tenant Purchase House No. 82 be allocated to Matilda Wandera, and the Kisumu plot to Cecilia Mudondo Wandera. She has attached to her affidavit some documents. There is a valuation for LR No. MN/2636, Hamisi Estate, Mombasa, said to be registered in the name of John Emim Wandera, valued at Kshs. 6,000,000. 00; a valuation for Kisumu Municipality Block 10/10, said to be registered in the name of John Emin Wandera, valued at Kshs. 8,500,000. 00; a certificate of official search for Kisumu Municipality Block 10/10, registered in the name of John Emin Wandera on 17th June 1985, with a charge registered on 17th June 1985, in favour of Standard Chartered Bank, for Kshs. 400,000. 00; and a certificate of lease for Kisumu Municipality Block 10/10, in the name of John Emin Wandera, dated 8th July 1985.

7. Matilda Wandera swore an affidavit in response, on 14th September 2022. She points out that F. Tuiyott J heard evidence from the parties, and delivered a ruling on the distribution of the estate on 12th June 2014; and Cecilia Mudondo Wandera sought review of those orders, and a ruling was delivered on 7th July 2015, dismissing that review application. She avers that only 2 assets were not distributed, being the home at Samia/Luanda-Mudoma/656 and the plot at Namboboto Trading Centre. On the assets that the Court of Appeal ordered to be distributed by the High Court, she makes a number of averments. She says that the Funyula kiosks were sold by the deceased during his lifetime, and, therefore, they do not form part of the estate, and are not available for distribution. She states that she is unaware of the property described as Samia/Luanda-Mudoma/1482. She says that only Samia/Luanda-Mudoma/656 has not been litigated, and both families reside there, the deceased had shown the sons their individual portions of the same, and a portion had been left for the daughters to hold jointly. She states that the ruling by F. Tuiyott J, of 12th June 2014, comprehensively disposed of the issues around the Mombasa and Kisumu houses. She proposes that the Kisumu house be shared equally between the 2 widows.

8. When the parties appeared before me on 26th September 2022, they opted to dispose of the application, dated 30th June 2022, by way of written submissions. Mr. Juma, for Matilda Wandera, addressed me orally. He said that only 3 assets were contested, being Mombasa Municipality/Changamwe/Tenant Purchase House No. 82 (LR No. MN/2636) and Kisumu Municipality Block 10/10. He later added Samia/Luanda-Mudoma/656, Kisumu/Korando/4163 and Kisumu Nyalenda “A”/1053 to the list. Both parties lodged written submissions. There is nothing new in them, for they cite no statutory provisions nor caselaw, and are mere regurgitations of the contents of the affidavits lodged herein.

9. Let me start with the concern raised by Matilda Wandera, that this court is being asked to do that which F. Tuiyott J had already done. I agree. F. Tuiyott J took oral evidence from the parties on these issues, and delivered a considered ruling on 12th June 2014. The orders made in that ruling were not challenged on appeal, and the appeal, in Kisumu CACA No. 99 of 2015, turned on orders that F. Tuiyott J had made on a review application, but the judgment of the Court of Appeal largely affirmed the orders of F. Tuiyott J of 12th June 2014, since the review application was with respect to them. Matilda Wandera appears to wonder, if what F. Tuiyott J had done had been affirmed by the Court of Appeal, why is it then that the court is going through the same motions. The Court of Appeal is blameless on this. It is the parties themselves who chose that route. They placed a consent on record, dated 17th February 2017, before the Court of Appeal, for adoption, and it was adopted. The effect of that consent was to reopen the matter. The said consent undid the consent of 8th May 2013 and swept away the orders of F. Tuiyott J of 12th June 2014. It presented a fresh mode of distribution, which was adopted by the Court of Appeal, and it identified assets where there was no consensus, and for which it required the Court of Appeal to determine. The Court of Appeal could not distribute the assets, where there was no consensus, on account of absence of documentation, and reverted the matter to the High Court for that purpose, in the hope that the documentation was at the High Court, or the parties would avail it there. So, Matilda Wandera should not complain, this is happening because she, and Cecilia Mudondo Wandera, asked for it, vide their consent of 17th February 2017. She cannot turn around to seemingly wonder what is going on.

10. The Court of Appeal was specific in its orders of 30th March 2017. The High Court was to distribute assets specified in that order, they had to be free property registered in the name of the deceased, and documentation had to be placed on record with respect to their particulars, certificates of official searches had to be obtained and valuations done. I should order distribution, by way of confirmation of grant, on those parameters.

11. Has there been compliance? Although the application, dated 30th July 2022, invites me to make orders on distribution of 7 assets, only 2 of them are supported by documentation, that is to say Mombasa Municipality/Changamwe/Tenant Purchase House No. 82 (LR No. MN/2636) and Kisumu Municipality Block 10/10. Ideally, I can only distribute these 2. I would like to emphasize what the Court of Appeal said, that distributing assets, whose title documents are unavailable, is like tossing a coin, for there is no certainty whether those assets exist, and if they do, whether they are registered in the name of the deceased, and if they are registered in his name, whether they are free or available for distribution. The probate court should not act blindly, by making a distribution on the basis of a mere list of assets purported to be in the name of the deceased, when there is no proof of the existence of the assets in favour of the deceased in the first place. The court should not act in vain. There ought to be certainty, to avoid wastage of judicial effort, and to obviate the possibility of parties needlessly running all over the place trying to enforce a certificate of confirmation of grant which is not implementable. It is the duty of the administrators to obtain the relevant documentation, and to place it before the court. That is what administration entails. Administration is not just about filing applications in court, with lists of assets, whose ownership is unknown.

12. So, regarding the 2 assets whose documents have been placed on record, are they available for distribution? Should I make orders on their distribution? This cause was initiated in respect of a person known as John Wandera Magonda, according to the petition that was lodged herein, on 6th September 2010. I see a certificate of death herein, dated 26th September 2007, serial number 27504. It is in respect of a John Wandera Magonda. The grant herein, issued on 29th September 2010, was in respect of the intestate estate of John Wandera Magonda. A fresh grant was issued on 26th September 2011, to Cecilia Mudondo Wandera and Matilda Wandera, in respect of the estate of John Wandera Magonda. The documents that Cecilia Mudondo Wandera has annexed to her affidavit, in support of the application, dated 30th June 2022, relating to Mombasa Municipality/Changamwe/Tenant Purchase House No. 82 (LR No. MN/2636) and Kisumu Municipality Block 10/10, indicate that those 2 assets are not registered in the name of John Wandera Magonda. There are no title documents, by way of a title deed or certificate of lease or title, relating to Mombasa Municipality/Changamwe/Tenant Purchase House No. 82 (LR No. MN/2636). What has been filed is a valuation, which is not a document of title. It does not prove ownership of Mombasa Municipality/Changamwe/Tenant Purchase House No. 82 (LR No. MN/2636). It, however, indicates the registered owner as a certain John Emim Wandera. For Kisumu Municipality Block 10/10, I see a valuation, a certificate of official search and a certificate of lease. They reflect the registered owner of that property as John Emin Wandera. I do not know whether John Emim Wandera and John Emin Wandera refer to the same person as John Wandera Magonda. I have seen no documents on record which draw the connection or link between the 3 names. So, to that extent, Mombasa Municipality/Changamwe/Tenant Purchase House No. 82 (LR No. MN/2636) and Kisumu Municipality Block 10/10, are not available for distribution.

13. There is more about Kisumu Municipality Block 10/10. The certificate of official search, dated 21st August 2012, reflects that there was a charge registered against that title, on 17th June 1985, in favour of Standard Chartered Bank. This is an encumbrance against the title. The property is not free, for it cannot be transmitted to a new owner, so long as that charge is still in the register. This reflects a debt on the estate. I have no information whether that debt was ever settled, or cleared. If the deceased died before settling it, then the duty fell on the administratrices, to settle the debt, and free the property from the charge. If the debt has not been settled then it would mean that the administratrices have failed in their duties as such. If it has been settled, then an up to date certificate of official search ought to be procured. As it is, with the encumbrance appearing in that register, the said property is not free, and is not available for distribution. No beneficiary should inherit any debts of the estate, so any encumbrances on any title must be settled, before the property is offered or availed for distribution.

14. Regarding the other assets that the Court of Appeal directed the High Court to distribute, neither Cecilia Mudondo Wandera nor Matilda Wandera has availed documents. Indeed, Matilda Wandera did not attach any document to her affidavit. It is the duty of parties to present the relevant documents. They should not leave it to the court to source for them. I have had to plough through the file of papers before me, to ascertain whether there are any documents relating to Kisumu Nyalenda “A”/1053; Samia/Luanda-Mudoma/656 and 1482; Mombasa house; Kisumu house; Funyula Kiosks Nos. 41, 49, 54, 57 and 59; and Busia Jua Kali Association Plot No. 387, being the only other assets that I was directed by the Court of Appeal to distribute. I have come across documents relating to Samia/Luanda-Mudoma/656 only.

15. There is a land certificate for Samia/Luanda-Mudoma/656, dated 17th July 1982, in the name of John Magonda. He was registered on 23rd May 1979. The proprietorship section indicates that a charge was registered on 9th August 1984. The encumbrance section shows that the charge was discharged on 7th August 2000. An application was made by John Wandera Magonda, on 9th April 1999, to subdivide Samia/Luanda-Mudoma/656, and to transfer the subdivisions to 6 individuals, being John Wandera Magonda himself, getting 0. 6, and the rest 0. 4 each, being Peter Hudson Wandera, Simon Bwire Magonda, Gerald Wanderi Magonda, Winston Wandera Magonda and Isaac Roy Magonda. There is a letter of consent from the Funyula Land Control Board allowing that transfer, and it is dated 9th April 1999. There is a certificate of official search for Samia/Luanda-Mudoma/656, dated 9th December 1999. There is evidence, therefore, that this property was in the name of the deceased, as at 1999. There is need, however, for the administratrices to place on record an up to date certificate of official search, on the current status of that property, before the same is distributed. It may also be necessary to have a report by a government surveyor on the occupancy of the said property, for I am told it is ancestral land, occupied by both sides of the household.

16. In view of the above, the summons, dated 30th July 2022, is premature, for lack of documentation. It would be a leap into the dark, to distribute assets whose ownership is uncertain, and in respect of which it is unknown whether they are free and available for distribution. A previous summons for confirmation of grant, dated 13th August 2018, was dismissed for more or less the same reasons. I will not take that route, for section 71(2)(d) of the Law of Succession Act, allows me to postpone such applications, and to give time to the parties to do whatever it is that they have not done. I do hereby postpone the application herein, for 6 months, to enable the administratrices comply with the directions of the Court of Appeal. Let them read, very carefully, paragraphs 38, 39 and 41 of the judgment, in Kisumu CACA No. 99 of 2015, of 30th March 2017, and let them do what it requires of them. I shall allocate a mention, at the delivery of this ruling, after 6 months, when I expect that the administratrices will have obtained all the relevant documentation relating to the 11 assets listed in paragraph 38 of the said judgment, and to have placed the same on record, by way of further affidavits. It is so ordered.

DELIVERED, DATED AND SIGNED IN OPEN COURT AT BUSIA ON THIS 10TH DAY OF NOVEMBER 2023WM MUSYOKAJUDGEAdvocatesMr. Mukoya, instructed by RV Mukoya & Company, Advocates for Cecilia Mudondo Wandera.Mr. Juma, instructed by JV Juma & Company, Advocates for Matilda Wandera.