[2016] KEHC 1426 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KAKAMEGA

SUCCESSION CAUSE NO.676 OF 2014

IN THE MATTER OF THE ESTATE OF JUMA SHIRO alias SOLOMON JUMA - DECEASED

JOHN KUTONDO JUMA........................PETITIONER

VERSUS

JULIA MASITSA LUCHUMA...................OBJECTOR

JUDGMENT

1. Julia Masitsa LichumaandJohn Kutondo Juma are personal representatives of the estate of Juma Shiro alias Solomom Juma who died intestate on 12th May, 2002. A Grant of representation intestate was made to the petitioners on 24th September, 2015 and issued on 15th October, 2015.

2. On 20th April, 2016, John Kutondo Juma took out summons dated 22nd March, 2016 seeking confirmation of the grant made to them. In the affidavit in support of the summons sworn by John Kutondo on the same day, 22nd March, 2016, it was proposed that the deceased’s only property forming his estate, namely, Parcel Number North Kabras/Malava/1282 be shared so that John Kutondo Juma receives 8 acres while Andrew Shiro Juma, Luka Shiro Juma, Joshua Funchingo Juma, Philip Shamala Juma and Abraham Mulipi Juma get 2. 0 acres each. The widow Julia Masitsa Luchuma was not given any share.

3. Julia Masitsa Lichuma, the co-administrator, filed an affidavit of protest sworn on 18th September, 2016, protesting to the mode of distribution proposed for reason that as a co-administrator she was not consulted and that the mode of distribution is not acceptable.

4. According to Julia, the deceased was a polygamist who left behind a widow and fifteen children both sons and daughters; that the only asset left is Parcel Number North Kabras/Malava/1282 and hence it should be shared equally.

5. When the summons for confirmation came up for hearing, Mr Onyango appeared for the 1st administrator, while Mr Manyoni appeared for the 2nd administrator. Mr Onyango submitted that the deceased was a polygamist who had two wives, Rispah and Julia. Rispah though deceased, left behind two children namely John Kutondo and Haron Moto Luchuma. Julia Masitsa Lichum,a on the other hand, has 12 children and one grandchild a son to the deceased’s daughter. Learned counsel submitted that in determining the distribution of the estate, the court should apply section 40 as read with section 35 of the law of Succession Act. Counsel submitted that the church is entitled to 0. 5 acres and the remaining be shared so that John Kutondo and Haron Moto being sons of the first house take 2/15 and the remainder 13/15 be given to Julia’s house.

6. Mr Manyoni, counsel for the 2nd administrator, urged the court to go by the mode of distribution proposed by the 2nd administrator. According to learned counsel, the 1st administrator’s house should get 11 acres while the 2nd administrator’s house gets 8 acres. Counsel submitted that a grandson, Christopher Samala is not entitled to a share of the deceased’s estate while Margaret Juma and Ruth Juma are married daughters of the deceased, and therefore not entitled to a share in the estate.

7. I have considered summons for confirmation, the proposed mode of distribution and the protest thereto. The deceased was in a polygamous marriage having married two wives. One is deceased while the other is alive. One got twelve children while the other had two. The applicant and the protestor are joint administrators of the estate. They are son and widow to the deceased respectively. Whereas the widow proposes that the estate be shared equally, deposing that some section of the land is arable while the other is not, the son proposes that his mother’s house takes 8 acres while the co-administrator’s house takes 11 acres.

8. Two issues arise for determination. First, whether married daughters should get a share from their father’s estate, and secondly which mode of distribution is applicable.

9. The applicant, 1st administrator married daughters should not get a share of the estate so is the grandson whose mother, a daughter of the deceased, is herself deceased.On the other hand,Mr Onyango’s submission takes a different position from that of his client. According to counsel, the estate should be shared according to houses where the house with two children takes 2 out of 15 while the house with 12 children takes 13 out of 15 including the grandson in accordance with section 40 of the law of Succession Act.

10. Section 71 of the law of Succession Act is clear that a grant of representation shall not be confirmed unless beneficiaries and respective shares have been ascertained. Beneficiaries include daughters whether married or not. Section 51 of the Act is also clear on the people who have to be included in the petition are children of any deceased child of the deceased, that is grand children. However legally, the daughter’s child cannot benefit from the grand father’s estate where his/her mother is dead. Only the daughter of the deceased is entitled a stake where alive. When dead, her share is no more and her children cannot take her position and inherit their grandfather’s estate. I therefore agree with Mr Manyonithat the grand child is not entitled to a share.

11. It cannot be argued any more, as Mr Manyoni purports, that married daughters of a deceased, are not entitled to a share of their deceased father’s estate. Article 27 of the Constitution prohibits any form of discrimination on the basis of race, sex, marital status or culture. Under Article 27, the people of Kenya did away with discriminatory practices such as those advanced by learned counsel that married daughters should not be considered because they are married. Section 29(a) of the law of Succession Act is also clear and provides –

Section 29 “For purposes of this part, “Dependant” means

a) the wife or wives, or former wife or wives, and the children of the deceased whether or not maintained by the deceased immediately prior to his death.”

12. Section 29(a) does not say that children are either sons or daughters, married or unmarried. The section does not discriminate between children of the deceased on sex or marital status either. They also do not have to prove that they were being maintained by the deceased prior to his death.

13. In RE The estate of Lenonka ole Ntutu –deceased [2008] eKLR,Rawal, J,(as she then was), held that daughters of a deceased were entitled to inherit a share from their father’s estate just like the sons, and in Re Estate of Solomon Ngatia Kariuki – deceased [2008] eKLR, Makhandia J.(as he then was) stated:-

“The law of Succession Act does not discriminate between the female and male children married or unmarried daughters of the deceased person when it comes to the distribution of his estate. All children of the deceased are entitled to stake a claim to the deceased’s estate. In seeking to disinherit the protestor under the guise that the protestor was married, her father, brothers and sisters were purportedly invoking a facet of customary law. Like most other customary laws in this country they are always biased against women and they tend to bar married daughters from inheriting their father’s estate. The justification for this rather archaic and primitive customary law demand appears to be that such married daughters should forego their father’s inheritance because they are likely to enjoy inheritance of their husband’s side of the family.”

14. The deceased herein died intestate on 12th May, 2002. The law of Succession Act, came into force on the 1st July, 1981. Section 2(1) of the Act is clear that provisions of the Act apply to all persons dying after the commencement date. Customary practices have no place in estates where the intestate died after the commencement date. The submission by learned counsel for the 2nd administrator that married daughters should not inherit their father’s estate is unfounded and is based on no law.

15. The law frowns upon any suggestion which, prima facie, cuts the undertones of discrimination based on gender, sex, marital status or culture. It is discriminatory and unconstitutional to suggest that married daughters of a deceased have no right to take a share in their father’s estate. Such submission has no place in modern society.

16. The next question for determination is how the deceased’s estate should be distributed. The 1st administrator proposes that it be shared equally but her counsel argues that it should be according to houses pursuant to section 40(i) of the Act. The 2nd Administrator on the other hand proposes that distribution be in the ratio of 11 to 8 acres. This is a clear indication that there is no agreement on the mode of distribution.

17. Where beneficiaries have not agreed on the mode of distribution, the court will resort to the law of Succession Act to resolve the issue. It is not in dispute that the deceased was a polygamous man, married to two wives. One is deceased while the other is alive. The deceased wife had two children while the widow who is alive had twelve children. It is deposed that MarthaKhamete is deceased, while Christopher Shamala is a grandson who is also deceased, thus leaving eleven children alive and the widow.

18. This being a polygamous marriage and in the absence of an agreement amongst beneficiaries, the applicable law is section 40 of the Act. According to the section, and the only estate being parcel of land known as North/Kabras/Malava/1282,the estate should be shared among the houses according to the number of children in each house.

19. Under Section 71 of the Act before a grant is confirmed, the court should be satisfied as to the beneficiaries and their respective shares. It is therefore important to establish the beneficiaries before attempting to distribute the estate.

20. According to the 1st Administrator, the deceased had fifteen children and herself. She gave the names as Juma Masitsa, John Kutondo, Matha Kamete, Haron Muto, Margaret Juma, Philip Shamala, Ruth Maseno, Andrew Shiro, Luka Shiro, Joshua Fuchigo, Abraham Mulupi, Jacob Kofia, Loyce Lwasima, Christopher Shamala, dorcas Fatuma and Everlyne Juma.

21. The deceased first wife was called Rispah Nanjala (now deceased) and had two children that is John Kutondo (the 2nd administrator) and Harun Moto. The rest of the children belong to the second wife Julia Masitsa. According to the further affidavit by the 2nd administrator, Nartha Khamete, is deceased and Christopher Juma was a grandson who has since passed on. Those averments have not been controverted by the 1st administrator. That therefore means, the number of children of the deceased is reduced by two to thirteen, and the widow. Rispa’s house therefore has two units while that of Julia has eleven units plus one making a total of twelve units.

22. The estate of the deceased comprised in Parcel Number North/ Kabras/Malava/1282 measures approximately 7. 6 HA which is equivalent to approximately 18. 8 acres. There is a church which is said to be occupying 0. 5 acres. That leaves 18. 3 acres for distribution.

23. Taking the provisions of section 40 into account, the remainder of the estate is to be divided into two units of Rispas’s house and twelve units of Julia’s house. This works out to 3. 05 acres. Julias’ twelve units will take the remainder being 15. 25 acres.

24. After this, the houses will retreat to section 35 of the Act which requires that the children of each house shares what has been given to their house equally. Rispa’s house, that is John Kutondo JumaandHarun Moto Juma will equally share the 3. 05 acres given to their house, while Julia’s house will share equally the 15. 25 acres given to their house.

25. I must state here that section 40 of the Act, is the applicable section in a polygamous marriage and however inequitable it may appear. There is little a court of law can do unless the section is amended or parties resort to agreement on distribution to side step the apparent injustice created by the section.

26. That being my view of the matter, my final orders are that I allow the protest partially and distribute the estate of the deceased as follows:-

1. John Kutondo UJuma – 1. 525 acres

2. Haron Moto Luchume – 1. 525 acres

3. Philip Shamala – 1. 27 acres

4. Andrew Shamala – 1. 27 acres

5. Luka Shiro Juma – 1. 27 acres

6. Abraham Mulupi Juma – 1. 27 acres

7. Margaret Juma – 1. 27 acres

8. Ruth Juma – 1. 27 acres

9. Jacob Kotia Juma – 1. 27 acres

10. Dorcas Fatuma Juma – 1. 27 acres

11. Everlyne Juma – 1. 27 acres

12. Julia Masitsa Lichume – 1. 27 acres

13. Joshua Fuchingo Juma 1. 27 acres

14. Loyce Kwasima Yamo 1. 27 acres

15. PEFA Church

A certificate of confirmation shall issue in the regard.

Each party to bear their own costs.

Dated and delivered at Kakamega this 28th day of November, 2016.

E.C. MWITA

JUDGE