[2022] KEHC 1672 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT ELDORET

SUCCESSION CAUSE (P&A) NO. 58 OF 2020

IN THE MATTER OF THE ESTATE OF THE LATE JOSEPH

ERIC OWINO ALIAS JOSEPH ERIC OWINO NYABURI (DECEASED)

BY

MARY ANYANGO OWINO.................................................1ST ADMINISTRATOR/ APPLICANT

VERSUS

CHRISTINE OWINO....................................................................................2ND ADMINISTRATOR

EMMANUEL OTIENO OWINO.................................................................3RD ADMINISTRATOR

MARY NABUSU OWINO............................................................................4TH ADMINISTRATOR

Coram: Hon. Justice R. Nyakundi

M/S Morgan Omusundi, Law Firm Advocates for the 2ndadministrator

Aoko, Ondiek & CO. Advocates for the 4th administrator

Kaira Nabasenge & CO. Advocates for the 1st administrator

R U L I N G

1. This Succession Cause relates to estate of JOSEPH ERIC OWINO NYABURI (the deceased). The deceased died on 11th June, 2018.

2. On 3rd August, 2020 Emmanuel Otieno Owino, Christine Owino, Ramsi Nyaburi Owino and Mary Nabusu Owino filed a Petition for letters of administration of the estate of the deceased who died intestate and set out the following as the survivors of the deceased: Eva Kola Owino (Widow 1st House), Christine Owino, Castro Atieno, Rudolf Nyaburi Owino, Maxwell Otieno Owino, Emmanuel Otieno Owino, Douglas Owino, Moses Owino Nyaburi, Mary Nabusu Owino, Mary Onyango Anyango (Widow 2nd House), Ramsi Nyaburi Owino, Sarah Akinyi Owino, Rachael Adongo Owino, Rebecca Opiyo Owino, AON and DOO.

3. According to the Petition for letters of administration, the deceased’s estate is constituted as follows:

a) Eldoret Municipality Block 6/16

b) Leseru Land

c) Eldoret Municipality Block13/74

d) Kakamaga Sergoit 12

e) Eldoret Municipality Block 13/305

f) Nyabondo L.R 13/303

g) Kisumu Kabete Obuya 66

h) East Kadunga Kabete Obuya Plot 62

i) Pioneer Ngeria Block Eatec 5505

j) UNS KIE Shed Plot 28 Eldoret Municipality

k) Kisumu Kabete Obuya 259

l) Kisumu Kabete Obuya 58

m) Kisumu Migos Plot No. 2/320

n) Kisumu Migos Plot No. 2/231

o) Kabete Obuya 54

p) KLF xxx Peugeot 404

q) KLW xxx Mercedes Benz

r) KXB xxx Peugeot Pick-Up

s) KZR xxx Peugeot 504

t) Cash in Bank Account Co-Operative Bank of Kenya Eldoret Branch A/c No.xxxxxxxxxxxxxxx

u) Cash in Bank Account National Bank of Kenya Eldoret Branch A/c No.xxxxxxxxxxxxxxx

v) Nyabondo Ancestral land

w) Tea Farm at Nyabondo

x) Properties under litigation in Civil Suits;

i. Eldoret H.C.CA No. 18 of 1994,

ii. Eldoret CMCC No. 276 of 2015

4. The deceased’s widow from the 2nd house, Mary Onyango Anyango, filed an Objection dated 22nd September, 2020 and she subsequently filed a Cross Petition dated 30th October, 2020 wherein she contended that she ought to be one of the Administrators of the estate of her late husband.

5. On 19th April, 2021 the Court delivered its ruling to the Application dated 22nd September, 2020 directing that Mary Onyango Anyango be appointed one of the Administrator over the estate of her late husband.

6. On 26th April, 2021 the Court issued a grant of letters of Administration in favour of Mary Onyango Anyango, Emmanuel Otieno Owino, Christine Owino and Mary Nabusu Owino.

7. The 1st Administrator filed Summons for Confirmation of Grant dated on 8th December 2021 and proposed that the estate be distributed as follows:

i. Eldoret Municipality Block 13/74 - be given to the 1st House

ii. Eldoret Municipality Block 13/305 – be given to the 2nd House

iii. Ancestral land at Nyabondo – Be shared equally between the two houses

iv. Other Properties paragraph 3 above, schedule of assets herein, those with pending cases and any other to be discovered hereafter to be sold and the proceeds thereof to be shared equitably amongst the beneficiaries herein.

8. MARY NABUSU OWINO, the 4th Administrator filed an Affidavit sworn by herself and filed on 31st January, 2022 together with Written Submissions dated 31st January, 2022.

9. Counsel for the 1st Administrator filed a further Supporting Affidavit in Support of the Summons dated 23rd February, 2022 together with written submissions dated on 23rd February, 2022.

10. I note further that Counsel for the 1st Administrator filed a Further Affidavit sworn on 23rd February, 2022 wherein he annexed 2 email print-outs marked as MA(FA)1(a) and 1(b) as evidence that he served the Summons for Confirmation of Grant herein on the Counsel for the 2nd and 3rd Administrators. I note however that the aforementioned annexures merely confirm that the emails were not delivered since they expressly state that the following addresses morganomusundi@yahoo.com and info@omusundi.co.ke were not found. I note that the 2nd and 3rd Administrator may not have been duly served with the summons for confirmation of grant. Notwithstanding the aforementioned, a representative of counsel for the 2nd and 3rd Administrators was present in Court on 8th November, 2021 therefore counsel for the 2nd and 3rd Administrators ought to have had notice of the existence of the Summons for Confirmation of Grant. In the circumstances, they ought to have filed their response thereto or a counter proposal on the mode of distribution. This Court notes that the 2nd and 3rd Administrators neither filed a response nor written submissions to be considered by this Court.

DETERMINATION

11. The issue for determination by this Court is whether the proposed mode distribution of the estate ought to be adopted as proposed by the 1st Administrator.

THE APPLICABLE LAW

12. In a case of this nature where the deceased died intestate and was a polygamous man survived by two widows and children the anchor on distribution of his estate is Section 40 of the Law of Succession Actwhich primarily provides as follows; “(1)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.

(2)The distribution of the personal and household effects and the residue of the net interest within each house shall then be in accordance with the rules set out in sections 35 to 38”

The basic scheme is in line with the principles expounded in the following cases Rono –v-Rono Civil Appeal NO. 66 of 2002, where Waki J.Astated inter alia that;-“More importantly, section 40of the Act which applies to the estate makes provision for distribution of the net estate to the“houses according to the number of children in each house, but also adding any wife surviving the deceased as an additional unit to the number of children.”A“house”in a polygamous setting is defined in section 3of the Act as a“family unit comprising a wife and children of that wife.”

In addition, in the Matter of Re Estate of Benson Ndirangu Mathenge(deceased) Nakuru HCSC NO. 231 of 1998(Ondeyo J), the deceased was survived by his two widows and their children. The first widow had four children, while the second widow had six children. The court stated that the first house was comprised of five units while second had seven units. The two houses of the deceased combined and looked at in terms of units made up twelve units. The court distributed the estate to the children and the widows treating each as a unit. The land available for distribution was forty acres, which was divided by the court into twelve units. Out of the twelve units, five were given to the first widow and her four children, while the remaining seven units went to the second widow and her six children.

Further, In theMatter of the Estate of Nelson Kimotho Mbiti(deceased) HCSC NO.169 of 2000, Koome Jdirected that the estate of a polygamist be divided in accordance with the provisions of Section 40 of the Act. The estate was divided into units according to the number of children in each house with the widows being added as additional units. The same reasoning was also applied by Judge Ali Roni in the Estate of Ainea Masinde Walubengo(deceased) (2017)eKLR stating that “I am of the view that Section 40 of the Law of Succession Act will apply to the circumstances of this Case. Meaning that the Court will distribute the estate of the deceased according to each house taking into account the number of children in each unit including the surviving widow.”

13. This Court takes note of the fact that the aforementioned schedule of distribution has provided for the members of the 1st and the 2nd house but it is not very express as to the entitlements of the children of the deceased who were born out of wedlock noting that they don’t belong to any of the aforementioned houses.

14. It is not in dispute that Douglas Owino, Moses Owino Nyaburi and Mary Nabusu Owino are children of the deceased. From the pleadings filed in this succession Court, this Court can infer that before the death of the deceased, he publicly acknowledged the aforementioned individuals as his children. The only contention among the parties to this succession cause is whether Douglas Owino is the first born of Eva Kola Owino (the widow from the 1st house) or whether he was born to the deceased out of wedlock. Unfortunately up until this point, this Court cannot authoritatively state the actual position as to whether or not Douglas Owino is a member of the 1st house.

15. Section 3(2) of the Law of Succession Act provides as follows:“(2) References in this Act to "child" or "children" shall include a child conceived but not yet born (as long as that child is subsequently born alive) and, in relation to a female person, any child born to her out of wedlock, and, in relation to a male person, any child whom he has expressly recognized or in fact accepted as a child of his own or for whom he has voluntarily assumed permanent responsibility.”

16. In NSA & another v Cabinet Secretary for, Ministry of Interior and Coordination of National Government & another [2019] eKLR.The court held inter alia that within the provisions of Section 3(2) of the Act any infringement of the right to inheritance for children born out of wedlock would be unconstitutional. To that extent it is unfair and unjust for children born out of wedlock to be arbitrarily excluded from inheriting their fathers/parents estate on the basis of considering them illegitimate. That therefore confirms that any distribution of an estate which do not comport with the principles of fundamental justice given Article 27 of the constitution would be considered discriminatory.

In Stephen Gitonga M’murithi –v- Faith Ngira Murithi the court made the following observations “Section 38 enshrines the principle of equal distribution of the net intestate estate to the surviving children of the deceased irrespective of gender and whether married and comfortable in their marriage or unmarried.

Section 40on the other hand enjoins the inclusion of a surviving spouse as an additional unit to each house hold of a polygamous deceased. Applying the above principles…… it is our finding that the learned trial Judge fell into an error when he failed to accord equal distribution to all the children of the deceased in violation of section 38 of the Law of Succession Act by discriminating against the married daughters of the deceased…”

17. It is evident that the deceased expressly recognized Douglas Owino, Moses Owino Nyaburi and Mary Nabusu Owino as his children.

18. For purposes of succession, all children, in spite of the marriage status of their parents are entitled to an inheritance. The aforementioned statement refers to children who fall within the parameters of section 3(2) of the Law of Succession Act.

19. This Court is inclined to disregard the mode of distribution proposed by the 1st Applicant since the same does not make provision for the entitlements that are due to the deceased’s children who were born out of wedlock. If such a mode of distribution was to be adopted by this Court, it would result in manifest discrimination in contravention of the provisions of Article 27 of the Constitution of Kenya, 2010 which expressly prohibit discrimination on any ground, including race, sex, pregnancy, marital status, health status, ethnic or social origin, colour, age, disability, religion, conscience, belief, culture, dress, language or birth.

20. Counsel for the 4th Applicant relied on the decision of the Court in ELISEUS MBURA M’THARA V HARRIET CIAMBAKA & ANOTHER [2012] eKLR to demonstrate the level of non-discrimination that is required in the distribution of a deceased person’s estate as follow:

The law of Succession Act does not discriminate between gender in matters of succession or inheritance. Under the law of Succession Act and indeed under the Constitution a child is a child and every person has equal rights under the law irrespective of gender. The Law of succession Act does not discriminate between married or unmarried daughters but gives them equal rights to inheritance as the other children (sons) of a deceased person.

21. Failing to provide for the deceased’s children born out of wedlock amounts to discrimination on grounds of the marital status of their parents since unlike the children born to the 1st and 2nd house who were duly provided for in the mode of distribution, the children born to the deceased out of wedlock are entitled to an inheritance and their aforementioned entitlement should not be taken away simply because their mothers were not married to the deceased.

22. I note that the deceased was polygamous and he left behind Two (2) widows Eva Kola Owino and Mary Anyango Onyango. In the circumstances, the provisions of Section 40(1) of the Law of Succession Act apply and it states as follows:

40(1) 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.

23. The 1st house of the deceased is constituted as follows:

i. Eva Kola Owino (Widow)

ii. Christine Owino

iii. Castro Atieno

iv. Rudolf Nyaburi Owino

v. Maxwell Otieno Owino

vi. Emmanuel Otieno Owino.

24. It is important to mention at this point that the 1st Administrator averred that Douglas Owino is the 1st Born of Eva Kola Owino although no evidence has been tendered before this Court to prove or disprove this allegation. In any event, Douglas Owino is a son of the deceased thus his entitlements as a child of the deceased shall not be affected in any way.

25. The 2nd house of the deceased is constituted as follows:

i. Mary Anyango Onyango (widow)

ii. Ramsi Nyaburi Owino

iii. Sarah Akinyi Owino

iv. Rachael Adongo Owino

v. Rebecca Opiyo Owino

vi. AON; and

vii. DOO.

26. For purposes of this succession proceedings, the 1st house is made up of 6 units and the 2nd house is made up of 7 units. The 3 children born to the deceased out of wedlock constitute 3 units. I note that the deceased left behind a total of 16 units that are entitled to inherit equally from his estate.

27. The Court in RE ESTATE OF JOHN MUSAMBAYI KATUMANGA – DECEASED [2014] eKLRheld as follows:

“The spirit of Part V, especially Sections 35, 38 and 40, is equal distribution, of the intestate estate amongst the children of the deceased. There have been debates on whether the distribution should be equal or equitable. My reading of these provisions is that they envisage equal distribution for the word used in Sections 35(5) and 38 is ‘equally’ as opposed to ‘equitably’. This is the plain language of the provisions. The provisions are in mandatory terms – the property “shall … be equally divided among the surviving children.” Equal distribution is envisaged regardless of the ages, gender and financial status of the children.”

28. This Court has the discretion to tamper with the mandatory the provisions of section 40 of the Law of Succession Act as was observed in the case of RE ESTATE OF JOHN MUSAMBAYI KATUMANGA – DECEASED [2014] eKLR (SUPRA).

29. I note that the children born out of wedlock and the children of the 1st house are all adults while AONand DOOfrom the 2nd house are aged 14 years old and 11 years old respectively.

30. From the Further Affidavit sworn by the 1st Administrator and filed on 23rd February, 2022, this Court is aware of the value of following properties: ELDORET MUNICIPALITY BLOCK 13/74 valued at Kshs. 90,000,000. 00, ELDORET MUNICIPALITY BLOCK 13/305 valued at Kshs. 55,000,000. 00 and ELDORET MUNICIPALITY BLOCK 6/ 16 valued at Kshs. 150,000,000. 00. This Court takes further notice that the estate of the deceased is made up of many other properties whose value is still not ascertained.

31. In the circumstances, I find no need for this Court to exercise its discretion to establish a mode of distribution that is contrary to the equal distribution mandated by section 40 of the Law of Succession Act. Once each dependant of the deceased receives their share of the inheritance, those that are yet to pursue their studies to university level may do so using the resources that will be made available to them from their respective portions of inheritance that is due to them.

RESOLUTION

32. For avoidance of doubt that being the definition accorded the scheme of distribution and based on criteria outlined above the rule of completeness shall comprise of the following declarations;

(a) That ELDORET MUNICIPALITYBLOCK 13/74 be distributed to the first house and be shared equally to the beneficiaries.

(b) That ELDORET MUNICIPALITY BLOCK 13/305 be wholly shared by the 2nd house in equal shares. In reference to the identifiable minors being A and D as ascertained be held in trust by Mary Onyango Anyango until they attain the age of maturity. That share shall not be intermeddled, assigned, sold or transferred without the consent of the court.

(c) The estate prime property referenced as ELDORET MUNICIPALITY BLOCK 6/16 already valued at Ksh 150,000,000. 00/= be sold and the proceeds shared equally among the sixteen (16) units.

(i) That in essence incorporates the three siblings who apparently formed one of the contentious issues in this litigation.

(ii) In the alternative and in the interim the administrators source for a reputable management company to be incorporated for the sole purpose of turning this referenced property into an attractive rentable premises.

(iii) The rent and receivables from the property be shared equally on a month to month basis amongst the sixteen (16) units being dependants of the intestate estate.

(iv) That the rent so far collected be accounted for to the administrators by way of rendering statement of accounts for purposes of distribution to the beneficiaries and paying of some of the liabilities incurred so far by the estate.

(d) Given that the spouses are first ranking members to the estate of the deceased the Nyabondo Ancestral Land be shared in equal share exclusively between Eva Kola Owino and Mary Onyango Anyango.

(e) The estate had in its possession four motor vehicles namely KLF xxx Peugeot xxx, KLW xxx Mercedes benz, KXB 2010 Peugeot Pick-up and motor vehicle registration KZR Peugeot 504 be sold and the proceeds be distributed equally between the sixteen(16)units.

(f) In so far as the yet to be immovable assets particularized as follows;

(i) ELDORET MUNICIPALITY BLOCK 6/16.

(ii) Leseru Land.

(iii) Kakamega Sergoit 12.

(iv) Nyabondo L.R 13/303.

(v) Kisumu Kabete Obuya 66.

(vi) East Kadungu Kabete Obuya Plot 62.

(vii) Pioneer Ngeria Block Eatec 5505.

(viii) UNS KIE Shed Plot 28 Eldoret Municipality.

(ix) Kisumu Kabete Obuya 259.

(x) Kisumu Kabete Obuya 58.

(xi) Kisumu Migos Plot No. 2/320.

(xii) Kisumu Migos Plot No. 2/231.

(xiii) Kabete Obuya 54.

(xiv) Tea Farm at Nyabondo.

(g) The property still under litigation namely;

(i)Eldoret H.C.C.A NO. 18 of 1994.

(ii)Eldoret CMCC NO. 276 of 2015. Once determined and the outcome is in favour of the estate shall be sold and the proceeds shared as between the sixteen (16) beneficiaries.

(h) In addition cash held in Bank Account Co-operative Bank of Kenya Eldoret Branch A/C NO. xxxxxxxxxxxxxxx and Bank Account National Bank of Kenya Eldoret Branch A/C NO.xxxxxxxxxxxxxxx shall be withdrawn and be shared equally among sixteen (16) beneficiaries who comprise the units for the first house, second house and the three distinct units to the estate of the deceased. All in all as stated elsewhere the beneficial interest of the minors shall be held in trust by Mary Onyango Anyango till the age of maturity.

33. Each party shall bear its own costs noting that the claim herein is a succession cause involving members of one family.

Orders accordingly.

DATED, SIGNED AND DELIVERED VIA EMAIL AT ELDORET THIS 10TH DAY OF MARCH, 2022.

..........................

R. NYAKUNDI

JUDGE

(morganomusundilawfirm&yahoo.com,

infor@omusundi.cp.ke,

aokoadvocate@gmail.com,

kairanabaasenge@gmail.com)