[2022] KEHC 10243 (KLR)

In re Estate of Jotham Nabwere Shamala (Deceased) (Succession Cause 210 of 2006) [2022] KEHC 10243 (KLR) (13 May 2022) (Ruling)

Neutral citation: [2022] KEHC 10243 (KLR)

Republic of Kenya

In the High Court at Kakamega

Succession Cause 210 of 2006

WM Musyoka, J

May 13, 2022

Ruling

1. The deceased herein, Jotham Nabwere Shamala, died on March 29, 1990. According to the Chief of Kambiri Location, through a letter dated, April 20, 2006, the deceased was survived by five sons, being Isaac Shamala Napwela, Solomon Masitsa Nabwere, Samweli Ichingwa Kalioko, David Muhanda Nabwere and Patrick Nabwere. He died possessed of a property known as Isukha/Kambiri/754. That was the information that was placed before the court, for the purpose of granting representation in intestacy, to Isaac Shamala Napwela, on 7th June 2006. I shall refer to Isaac Shamala Napwela, hereafter as the administrator.

2. The grant was presented for confirmation, through an application, dated December 19, 2006. It was proposed that Isukha/Kambiri/754 be distributed between the five purported sons, at uneven proportions. The application was placed before the Judge on October 19, 2015. The distribution that the court ordered included persons who were not in the application, that is to say Harun Amwoga Khayati and Martina Machengo Ocholi. The certificate of confirmation of grant, processed from the confirmation orders of October 19, 2015, reflected a distribution that fundamentally departed from that proposed by the parties in their application.

3. Be that as it may, an application for revocation of grant was lodged at the registry March 1, 2016, dated February 25, 2016, by Abigael Khatenyi Nabwela. I shall hereafter refer to Abigael Khatenyi Nabwela as the applicant. She is a daughter of the deceased. She averred that the deceased had married twice, his wives being the late Mukasia Ingasiali and the late Esther Makova Nabwera. She further averred that the children of the deceased by the late Mukasia Ingasiali were Isaac Shamala Napwela, Solomon Masitsa and Patrick Nabwera; while those by late Esther Makova Nabwera were Elizabeth Kirui Nabwera, Abigael Khatenyi and Selina Kageha Nabwera. She said that before the deceased died, he had shared out his estate amongst his two families. She complained that the second side of the family had been left out of the succession proceedings.

4. The revocation application was served. There is an affidavit of service on record, sworn on April 25, 2016, and filed herein on May 11, 2016. The administrator never replied to the application. When the revocation application was placed before the Judge on May 25, 2016, the administrator conceded before the Judge that he had not disclosed to court, when he sought representation, that the deceased had two wives, and that he had not involved the second family in the distribution of the estate. Whereupon, the court gave directions on the filing of replies to the application, and directed the parties to discuss redistribution of the estate to accommodate the children who had been left out. The record reflects the administrator as saying:“It is true that I did not disclose that the deceased who was my father had had two wives. I did not involve the family of the 2nd wife of the deceased in distribution of the deceased estate. I was served with the summons for revocation of grant. I have not responded.”

5. The matter was mentioned, thereafter, to confirm whether the parties had agreed on distribution. The court mentioned the matter several times, to allow time to the administrator to reply to the revocation application. Eventually, the application dated February 25, 2016was allowed, on March 11, 2020, and it was directed that a fresh grant be made to the applicant, Abigael Khatenyi Nabwela. A grant of letters of administration intestate was duly issued, dated May 22, 2020.

6. The applicant then followed her appointment as administratrix with a summons for confirmation of grant, dated August 6, 2020. In that application, she also sought replacement of the former administrator, Isaac Shamala Napwela, who had since died, with his widow, Juliet Nabwera, as beneficiary. In her affidavit in support, she listed the survivors of the deceased from the two houses, as set out in the affidavit that she had sworn in support of her revocation application, save that she had substituted Isaac Napwela with Juliet Shamala. She proposed that Isukha/Kambiri/754 be shared out between the two houses, so that the share for the first house would go to Juliet Shamala and that for the second house to the applicant, with the other children of the deceased taking nothing. She attached a consent on distribution which was not signed by anyone. There are affidavits on record demonstrating that the application was served on Juliet, Solomon and Patrick.

7. The applicant then filed another application, a Motion, dated October 7, 2021, seeking that the District Land Registrar cancels titles that had been created out of Isukha/Kambiri/754, on the strength of the confirmation orders of October 19, 2015, being Kakamega/Kambiri/2462, 2463, 2464, 2465, 2466, 2467 and 2468, and their reversion to the original owner, the deceased herein, Jotham Nabwere Shamala. She averred that the principal beneficiaries of those subdivisions were buyers from the former administrator, who had since not reacted to her application for revocation.

8. I heard the applicant orally on November 23, 2021. I did not hear the other parties. I wanted to get a clear picture of what the matter was about. She stated that succession had been done without involving her side of the family, and that at confirmation of the grant she was not present in court. She asserted that the portion of the estate land meant for the second house was occupied by persons she did not know.

9. I have perused the record, and I am now clear in my mind about what transpired. The late administrator admitted before the Judge that he had conducted a succession without involving one side of the family. His grant was revoked, and a fresh one has been made to the applicant, who has since applied for its confirmation. I have noted that in that confirmation application, she did not file a consent in Form 37, as contemplated by Rule 40(8) of the Probate and Administration Rules. I have also noted that she has not served her application on the persons listed in the certificate of confirmation of grant, that was generated from the confirmation orders of October 19, 2015. I cannot, therefore, grant any orders on the confirmation application before she files the consent under Rule 40(8) or causes her siblings to attend court at the next hearing, and serves the confirmation application on all the beneficiaries named in the certificate of confirmation of grant dated November 17, 2015, that is to say the family of Isaac Shamala Napwela, Solomon Masitsa, Patrick Nabwera, Alfred Shiloya Mung’ahu, Harun Amwoga Khayati and Chrispinus Madegwa Mukeya. She shall also serve the application on Elizabeth Kirui Nabwera and Selina Kageha Nabwera.

10. On the cancellation of the titles, I note that the said titles were created on the basis of the confirmation orders made on October 19, 2015, on the strength of the grant made on June 7, 2006. The grant of June 7, 2006 was revoked by the orders of March 11, 2020. It follows that the revocation of that grant should have taken with it anything that was done on the strength of the same. The consequence was that it rendered useless the orders of October 19, 2015, for the grant that was the basis of the confirmation orders of that date ceased to exist, which would mean that those confirmation orders also ceased to stand, and the certificate of confirmation of grant extracted from them became null and void, and any transactions carried out on the basis of those orders, like the transmission done on March 31, 2016, based on the certificate of confirmation of grant dated 17th November 2015, equally became a nullity. Consequently, the titles created out of Isukha/Kambiri/754, that is to say Kakamega/Kambiri/2462, 2463, 2464, 2465,2466, 2467 and 2468, became invalid. They must be cancelled, and the property reverted to Isukha/Kambiri/754, in the name of the deceased herein, to facilitate a fresh distribution of the estate of the deceased, in a process that shall include all the members of the family of the deceased.

11. I note that the second house of the deceased, which was completely left out of the initial succession process, comprises of daughters only. The members of the first house might have, therefore, thought that daughters were not entitled to a share, and that the property was exclusively theirs. That would be a complete misunderstanding or misapprehension of the law, as it currently stands, on inheritance by women. The deceased herein died on March 29, 1990, long after the Law of Succession Act had come into force in 1981. He died intestate, and, therefore, his estate is for distribution in terms of Part V of the Law of Succession Act. Sections 32 and 33 of the Law of Succession Act allow some room for application of customary law, to intestate estates of persons dying after 1981, and it is a matter of common notoriety that customary law discriminates against women in matters relating to succession. Unfortunately, that window is very narrow. It covers only a very small section of Kenya, which excludes Kakamega County. Consequently, the intestate estates of persons dying, and owning property, within Kakamega County is wholly subject to Part V of the Law of Succession Act. The shares due to children of intestates under sections 35 and 38 of the Law of Succession Act is “to the children of the deceased,” not the sons of the deceased. The reference to children, in those provisions, means that the said provisions are gender neutral. No distinction is made between male and female children, whether married or unmarried. It presupposes equal treatment of such children. The deceased herein was survived by three sons and three daughters. These were the children of the deceased, for the purposes of succession to his intestate estate. Under sections 35 and 38 of the Law of Succession Act, they should take equally.

12. What I have said above, regarding the provisions of sections 35 and 38 of the Law of Succession Act, should be read together with the provisions of the Constitution of Kenya, 2010. Article 27 provides for equality and freedom from discrimination. It asserts, at Sub-Article (1), that every person is equal before the law and has the right to equal protection and equal benefit of the law, Sub-Article (3) reinforces it, by stating that women and men have the right to equal treatment, including the right to equal opportunities in political, economic, cultural and social spheres of life. The constitutional principles enshrine the policy and law stated in the United Nations Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), to which Kenya is a signatory, and which has the force of law in Kenya by dint of article 2(5)(6) of the Constitution. Women are to be treated equally with men, and without any form of discrimination, based on their gender, is the bottom-line. The three daughters of the deceased are women, who should have the benefit of article 27 of the Constitution and the principles spelt out in CEDAW. The former administrator excluded them to his own peril, for whatever he did without involving them has to come to naught, and the exercise of distribution of the estate has to be repeated.

13. For avoidance of doubt, sections 35 and 38 say:“35. Where intestate has left one surviving spouse and child or children(1)… where an intestate has left one surviving spouse and a child or children, the surviving spouse shall be entitled to-(a)The personal and household effects of the deceased absolutely; and(b)a life interest in the whole of the residue of the net intestate estate(2)…(3)…(4)…(5)… The whole residue of the net intestate estate shall, on the death, or, in the case of a widow, remarriage, of the surviving spouse, devolve upon the surviving child, if there be only one, or be equally divided among the surviving children.36…37…38Where intestate has left a surviving child or children but no spouseWhere an intestate has left a surviving child or children but no spouse, the net intestate estate shall … devolve upon the surviving child, if there be only one, or be equally divided among the surviving children.”

14. The deceased, of course, died a polygamist and division of the property of his estate has to be in line with what the law requires. The relevant law is section 40 of the Law of Succession Act. He died, having married two wives during his lifetime. His estate, therefore, should be for distribution in accordance with section 40 of the Law of Succession Act, which provides for how the estate of a polygamist is to be handled. In the first place, the estate is divided among the houses, according to the number of children in each house, with the surviving spouse as an additional unit. After that, the share allocated to each house is distributed amongst the members of each house in terms of sections 35 to 38, depending on the composition of each house.

15. For avoidance of doubt, section 40 of the Law of Succession Act states as follows:“Where intestate polygamous(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 in the personal and household effects and the residue of the intestate estate within each house shall then be in accordance with the russet out in sections 35 to 38. ”

16. The orders that I feel disposed to make are as follows:(a)That I postpone confirmation of the grant to allow the applicant to have the said application dated August 6, 2020 served on all the persons beneficially interested in the estate, as discussed in paragraph 9 of this ruling;(b)That the matter shall be thereafter mentioned, to confirm service of the application for confirmation of the grant, and to give directions on its disposal; and(c)That the application dated October 7, 2021, is hereby allowed, for the reasons given in paragraph 10 of this ruling.

17. It is so ordered.

DELIVERED, DATED AND SIGNED IN OPEN COURT AT KAKAMEGA THIS 13THDAY OF MAY, 2022WM MUSYOKAJUDGEMr. Erick Zalo, Court Assistant.Abigael Khatenyi Nabwera, applicant.Patrick NabweraEsther NabweraElizabeth Nabwera