[2020] KEHC 6515 (KLR)
The court determined that since the deceased died intestate in 1972, prior to the commencement of the Law of Succession Act, the applicable law is the customary law in force at the time. The deceased, being a Luhya, was subject to Luhya customary law, which provides that in the absence of a spouse, children, or...
Source-derived case information.
- Citation
- [2020] KEHC 6515 (KLR)
- Parties
- Applicant: Raphael Katambani Matikina; Applicant: John Hunter Amboyi; Applicant: David Amboyi Shikami; Respondent: Estate of Kimayo s/o Shibeyi alias Kimayo Shibeyi (Deceased)
- Court
- High Court
- Court Station
- High Court at Kakamega
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 446 of 2011
- Procedural Posture
- Succession Cause / Judgment
- Outcome
- Estate to be distributed equally among the three nephews; certificate of confirmation of grant to issue; each party to bear own costs.
- Judges
- DN Musyoka
- Legal Topics
- Intestate Succession, Customary Law Inheritance, Distribution of Estate
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Raphael Katambani Matikina
Applicant
John Hunter Amboyi
Applicant
David Amboyi Shikami
Applicant
Estate of Kimayo s/o Shibeyi alias Kimayo Shibeyi (Deceased)
Respondent
Procedural Posture
Succession Cause / Judgment
Legal Issues
- 1 Who are the rightful heirs to the estate of Kimayo s/o Shibeyi, who died intestate in 1972 before the Law of Succession Act came into force.
- 2 What law governs the distribution of the deceased's estate given the date of death.
- 3 How should the estate be distributed among the surviving relatives.
Ratio Decidendi
The court determined that since the deceased died intestate in 1972, prior to the commencement of the Law of Succession Act, the applicable law is the customary law in force at the time. The deceased, being a Luhya, was subject to Luhya customary law, which provides that in the absence of a spouse, children, or brothers, the estate devolves upon the nephews. The evidence from the Chief's letter and affidavits established that the only immediate surviving relatives are three nephews: John Hunter Amboyi, Raphael Katambani, and David Amboyi Shikami. The court found no evidence of surviving children or spouse of the deceased, nor of surviving children of the deceased's brothers other than the...
Court Disposition
Estate to be distributed equally among the three nephews; certificate of confirmation of grant to issue; each party to bear own costs.
Orders
- The estate of Kimayo s/o Shibeyi shall be shared equally among John Hunter Amboyi, Raphael Katambani, and David Amboyi Shikami.
- A certificate of confirmation of grant shall issue accordingly.
Full Case Text
Judgment text and source record
14 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT KAKAMEGA
SUCCESSION CAUSE NO. 446 OF 2011
IN THE MATTER OF THE ESTATE OF KIMAYO s/o SHIBEYI alias KIMAYO SHIBEYI (DECEASED)
JUDGMENT
1. On 27th September 2018, I postponed determination of an application for confirmation of grant dated 23rd November 2012, and directed the Chief of Shibuye Location to furnish the court with accurate information on who the actual survivors of the deceased are, as the information in the application appeared to be either confusing or misleading or both.
2. The Chief of Shibuye Location has provided the information sought, through a letter dated 26th March 2019. It transpires from it that the deceased never married, and, therefore, he had no surviving spouse nor children. He was said to have had brothers, said to be Paul Amboyi Shibeyi, Joseph Shitiavayi Shibeyi and Litwachi Paulina Shibeyi, who are also all dead. He was said to have been survived by three nephews, being John Hunter Amboyi, Raphael Katambani and David Amboyi Shikami. Francis Atavachi Shitiavayi was said to be another nephew, who has since died. The fathers of the nephews, that is to say the brothers of the deceased, were not indicated. There was also a long list of grandnephews, but who are not aligned to any of the nephews. I have no way, therefore, of telling whether the parents of the grandnephews are alive or not.
3. The deceased died intestate in 1972, before the Law of Succession Act came into force on 1st July 1981. According to section 2(2) of the Law of Succession Act, the law to govern distribution of the estate of a person dying before the Act came into force is the law and customs in application at the time of death. The deceased persons was, no doubt, a Luhya by tribe. I was not told what the relevant customary law provided so as to guide me in distribution in this case. Customary law was notorious that succession was patrilineal, and property passed from the dead to his male relatives. The sons had priority, unless the deceased had none, in which case the property then passed to the brothers of the deceased, and in case there were none, to the nephews, and in the event there were none to the grandnephews, if he had any.
4. The material from the Chief’s letter is not altogether conclusive, but from the affidavit of Raphael Katambani Matikina, sworn on 7th June 2012, it would appear that Raphael Katambani Matikina was a son of Joseph Shitiavayi Shibeyi, while John Hunter and Daudi Amboyi were sons of Paul Amboyi Shibeyi. The affidavit identifies Peter Muyeshi as another son of Paul Amboyi Shibeyi, however, the Chief’s letter is silent on that. Both the Chief’s letter and the affidavit of Raphael Katambani Matikina are silent on whether Litwachi Paulina Shibeyi had any spouse or children. I shall take it that the said Litwachi Paulina Shibeyi did not have any survivors, and shall, therefore, not be considered in the distribution. George Shakaba Hunter is not listed in the Chief’s letter in any capacity, but I shall take it that he is a son of John Hunter. He shall not be entitled to take a share in the estate of his granduncle so long as his father is also inheriting from the same estate.
5. The immediate surviving relatives of the deceased are his three nephews, John Hunter Amboyi, Raphael Katambani and David Amboyi Shikami. The estate of the deceased shall accordingly be shared equally amongst the three. A certificate of confirmation of grant shall issue accordingly. Each party shall bear their own costs. Any party aggrieved has twenty-eight days to challenge the distribution ordered above at the Court of Appeal. It is so ordered.
DATED, SIGNED AND DELIVERED IN OPEN COURT AT KAKAMEGA THIS 30TH DAY OF APRIL, 2020
W. MUSYOKA
JUDGE