[2022] KEHC 1461 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT KISUMU

SUCCESSION CAUSE NO. 35 OF 2014

IN THE MATTER OF THE ESTATE OF JOSEPH OYOLA ONGATA (DECEASED)

PATRICK O. ONGATA

PAMELA AWINO MIYUMO..... PETITIONERS

BETWEEN

JESCA ATIENO OYOLA.................OBJECTOR

RULING

Before me is a Summons for Confirmation of Grant of Letters of Administration which had been issued on 12th May 2014, to JESCA ATIENO OYOLAand PAMELA AWINO MIYUMO.

1. In the application, Jesca is cited as the 1st Widow, whilst Pamela is cited as the 2nd Widow.

2. The Applicant proposed that the estate of the late JOSEPH OYOLA ONGATAbe distribted as follows;

1. EAST GEM/NYAMNINIA/456 – EQUAL SHARES

Between the 2 Houses

2. EAST GEM/NYAMNINIA/1731 – 1st House

3. KISUMU/KARATENG/2041 - 1st House

4. EAST GEM/NYAMNINIA/1071 - 1st House

5. EAST GEM/NYAMNINIA/2041 - 1st House

6. EAST GEM/NYAMNINIA/1130 - 1st House

7. EAST GEM/NYAMNINIA/1416 - DONALD OTIENO OYOLA

8. EAST GEM/NYAMNINIA/1308 - 2nd House

9. EAST GEM/NYAMNINIA/1456 - 2nd House

10. EAST GEM/NYAWARA/384 - 2nd House

11. EAST GEM/NYAMNINIA/640 - 2nd House

12. EAST GEM/NYAMNINIA/1438 - 2nd House

13. EAST GEM/NYAMNINIA/478 - 2nd House

14. MOTOR VEHICLE KZU 410 - 1st House

15. MOTOR VEHICLE KAP 842A - 1st House

16. KCB A/C xxxxxxxxxxxxx )

17. KCB A/C xxxxxxxxxxxxx )EQUALLY

18. EQUITY BANKBETWEEN

(Merina Agencies

A/c xxxxxxxxxxxxx )THE 2

19. CO-OPERATIVE BANK (Hekima)HOUSES

A/c xxxxxxxxxxxxx )

20. CO-OPERATIVE BANK

A/c xxxxxxxxxxxxx )

21. Pension & Gratuity )

3. In answer to the application, Jesca made a counter-proposal. In her opinion, the eleven (11) parcels of land should be distributed as follows;

1st House

1. EAST GEM/ANYIKO/1456

2. EAST GEM/NYAMNINIA/1731

3. KISUMU/KARATENG/2041

4. EAST GEM/NYAMNINIA/1071

5. EAST GEM NYAMNINIA/1416

6. EAST GEM NYAMNINIA/1308

7. EAST GEM/NYAMNINIA/1438

2nd House

1. EAST GEM/NYAMNINIA/384

2. EAST GEM/NYAMNINIA/640

3. EAST GEM/NYAMNINIA/478

DONALD OTIENO OYOLA

1. EAST GEM/NYAMNINIA/1130KISUMU/KARATENG/2041

4. When the Petition herein was filed in Court, on 12th February 2014, this parcel of land was not on the list of the assets which constitute the Estate.

5. In the affidavit filed by Pamela on 10th December 2019, in support of her proposed mode of distribution, this parcel of land was cited. However, the Applicant did not exhibit the Certificate of Official Search, at that time.

6. The Applicant, (Pamela) annexed the certified copy of the Green Card, to her affidavit sworn on 29th January 2020, in support of the Summons for Confirmation of the Grant.

7. The Green Card shows that that parcel of land was owned by JOSEPH OKUDO SIWA, as at 19th October 2005. He then transferred it to JOSEPH OYOLA ONGATAon 1st June 2006.

8. The 4th entry in the Green Card is dated 6th December 2017; and it bears the names of PAMELA AWINO MIYUMOand JESCA ATIENO OYOLA. The said entry was made pursuant to this Succession Cause.

9. Two days later, on 8th December 2017, a Title Deed was issued.

10. But prior to that, there is an entry Number 5 on the Green Card, which cites the name of JESCA ATIENO OYOLA.

11. Entry Number 7 is a Transfer to RICHARD NYABUTO MBAKA. It is an entry dated 30th January 2018. On the same date, a Title Deed was issued.

12. As at 30th January 2018, the Grant issued herein had not been confirmed. Therefore, the Administrators, whether jointly or individually, lacked the requisite authority to sell or transfer the property.

13. It is even more worrisome to learn that Pamela did not have any knowledge about the transfer to Richard Nyabuto Mbaka.

14. I note that the Objector (Jesca) did not offer any explanation or response to the assertion that she had unilaterally transferred that property to Richard Nyabuto Mbaka. I therefore find that the transfer was irregular.

15. However, as the said Richard Nyabuto Mbaka has not been made a party to these proceedings, it would be improper, at this stage, to condemn him unheard.

16. Nonetheless, I order that the said property be preserved until further orders of this Court. This order of preservation shall prohibit the registered owner from transferring, selling, gifting or in any other manner whatsoever, dealing with the parcel of land L.R. KISUMU/KARATENG/2041.

Marital Status of Pamela Awino Miyumo

17. By her submissions, Jesca has asserted that Pamela was not married to the deceased. She pointed out that Pamela had not adduced any evidence to prove that she was married to the deceased, whether under customary law or statutory law.

18. She insisted, in her submissions, that Pamela was not her co-wife.

19. Nonetheless, the Objector stated that the Issues for determination in the application; is about;

“1. Portions of the estate available for distribution amongst the two families.

2. Mode of distribution.

3. Costs of this Petition.”

20. In my understanding, there can only arise 2 families if Pamela is a part of the equation.

21. In any event, I note that by her affidavit sworn on 4th November 2019, Jesca expressly deponed that, Pamela was her “Co-wife.”

22. Prior to that, when the Petition was filed in Court on 12th February 2014, it was accompanied by a letter dated 4th December 2013; the letter is from the Chief of Yala Township sub-ward, JOANNES A. ADONGO.

23. The said letter was filed by Jesca and Pamela; and in it, the Chief named the 2 ladies as Widows of Joseph Oyola Ongata.

24. In the Petition itself, the ladies described themselves as “Widows,”

25. Even in the Gazette Notice No. 1724, dated 14th March 2014, Jesca and Pamela are cited as Widows of the deceased.

26. In the circumstances, I hold the considered view that it would be wrong to permit Jesca to now challenge a fact that she has held out to the Court and to the whole world (through the Gazette Notice) as being true.

27. If indeed Pamela was not a widow of Joseph, these entire proceedings may turn out to be nullity, as she would probably lack the locus standi to be a co-administrator to the estate herein.

28. The Court was persuaded to issue the Grant to the two Petitioners because, as widows, because they ranked in priority over other persons.

29. As it is that Grant which the Court is being requested to confirm, I find that it would be tantamount to pulling the rug from underneath the Court, if that which ought to be confirmed was founded on quicksand.

30. I reject the belated views of the Objector, Jesca, concerning the marital status of Pamela.

DONALD OTIENO OYOLA

31. Both Jesca and Pamela are ready to offer one parcel of land to Donald. However, the choice of which property should be given to Donald is varied.

32. Pamela suggested East Gem/Nyamninia/1416; whilst Jesca suggested East Gem/Nyamninia/1130.

33. But, at the same time, there appears to be an unresolved issue concerning some funds which Donald obtained from the Public Trustee. If it were left entirely in the hands of the Court to determine what, if anything, should be given to Donald, I would have first insisted in verifying the information about the amount of money which he had received from the Public Trustee.

34. Considering that the two widows both wish to give a property to Donald, notwithstanding the lack of clarity about the money he had received from the Public Trustee, I find that there must be some hidden consideration, which the parties are aware of, and which they have based their decision upon.

35. Accordingly, Donald will be given one property.

Pre-1996 and Post-1996

36. The year 1996 is when Pamela came into the life of the late Joseph Oyola Ongata.

37. Obviously, before Pamela joined the family of Joseph, she cannot have impacted the acquisition or development of properties which the deceased had.

38. I hold the considered opinion that one of the factors which should be taken into account by the Court, when called upon to distribute the estate in an equitable manner, in a situation where the deceased was polygamous, is the date when each such property was acquired or developed, in relation to the date when each of the wives was married.

39. But each suit must be determined on its own facts, because the deceased may have conducted his affairs in such a manner as to give a sense of direction about the manner in which he may have wished to distribute his estate.

40. In this case, the Court has not had the benefit of evidence from which it can determine how the deceased intended to distribute his assets.

41. Meanwhile, Jesca suggested that L.R. NO East Gem/Nyamninia/1130be given to Donald.

42. If, as Jesca had indicated, Parcel No. 1130was purchased in 1992, (which is before Pamela joined the family of Joseph), that would imply that Jesca does not necessarily want to insist that all assets acquired or developed pre-1996 should go to the 1st house.

43. The flexibility demonstrated by the Objector is a factor that the Court will take into account.

44. The Parcel No. East Gem/Nyamninia/1416is 0. 37 Hectares, whilst East Gem/Nyamninia/1130is 0. 14 Hectares.

45. Although it has not been ascertained that the said Donald already obtained Sshs 700,000/= from the Public Trustee, I find that his “loud silence”over the issue, is indicative of a concession on his part, that he did obtain funds.

46. In the result, I find that he should be given the smaller parcel, which is East Gem/Nyamninia/1130.

East Gem/Nyamninia/1308 and 1731

47. Those two parcels of land are developed and were generating rental income.

48. The rents were being collected by Jesca.

49. By law, Jesca was under an obligation to provide the Court and all the beneficiaries with a comprehensive Statement of Account, detailing all the rents she had received from 2009.

50. The 2nd house believes that Jesca had received Kshs 6. 4 Million as rent.

51. But the 1st house stated that there was no rental income being received from the two properties, because Pamela had scared away all the tenants.

52. Secondly. Jesca explained that the buildings on those 2 parcels of land, were now old and dilapidated.

53. On 29th November 2019, Pamela filed an affidavit sworn by JOACHIME OTIENO ONG’ANG’A, who deponed that between 2010 and 2019, he was a tenant in one of the 6 residential units on L.R. East Gem/Nyamninia/1731.

54. Joachime deponed that he paid monthly rents of Kshs 4,000/= to Jesca; and he provided a print-out from Safaricom to support her payments which were made through MPesa.

55. Joachime also deponed that the 5 tenants in the other units, also paid rents to Jesca.

56. From the evidence tendered by Joachime, I am satisfied that Jesca did receive rental income from L.R. East Gem/Nyamninia/1731. However, the quantum of the rental amounts received is not known.

57. Jesca owed a fiduciary duty to the Estate and all the beneficiaries to provide a detailed account of all the rents she received. She has failed to discharge that obligation.

58. In the light of Jesca’s decision to disregard her legal obligation, the Court has no option but to draw an adverse inference against her. In effect, I find that Jesca received considerable amounts of money, in the nature of rent, from the 2 properties.

59. I also find that if the developments on the 2 parcels of land were so old and dilapidated, as alleged by the Objector: so that they were not generating rental income, the Objector could not have chosen to cling to them as she has done. There must be a benefit which Jesca continues to derive from the two properties.

60. In my considered opinion equity demands that the 2nd house be given a property which would “compensate”it for the “loss”which it suffered by being deprived of the rentals from the two developed parcels of land.

61. Accordingly, East Gem/Nyamninia/1308is given to Pamela.

Motor Vehicles KZU 410 and KAP 842A

62. As the parties are in agreement, both vehicles will go to Jesca.

Bank Accounts

63. The funds in the five (5) Bank Accounts, held at KCB, Equity and Co-operative Bank shall be distributed equally between the two households: That is based upon the consensus between the two widows.

Summary

64. The estate is to be distributed as follows;

1st House

a. East Gem/Nyamninia/456

b. East Gem/Nyamninia/1731

c. East Gem/Nyamninia/1071

d. East Gem/Nyamninia/1438

e. Kisumu/Karateng/2041

f. East Gem/Anyiko/1456

g. East Gem/Nyamninia/1416

h. East Gem/Nyawara/384

2nd House

i. East Gem/Nyamninia/1308

ii. East Gem/Nyamninia/1456

iii. East Gem/Nyamninia/348

iv. East Gem/nyamninia/640

v. East Gem/Nyamninia/478

65. Finally, each party will meet her own costs of the Summons for Confirmation of the Grant.

DATED, SIGNED AT DELIVERED AT KISUMU THIS 14TH DAY OF MARCH 2022

FRED A. OCHIENG

JUDGE