[2022] KEHC 11882 (KLR)

In re Estate of Lawrence Katumanga Likhanga (Deceased) (Succession Cause 250 of 1999) [2022] KEHC 11882 (KLR) (13 May 2022) (Ruling)

Neutral citation: [2022] KEHC 11882 (KLR)

Republic of Kenya

In the High Court at Kakamega

Succession Cause 250 of 1999

WM Musyoka, J

May 13, 2022

IN THE MATTER OF THE ESTATE OF LAWRENCE KATUMANGA LIKHANGA (DECEASED)

Ruling

1. The estate herein was distributed in a ruling delivered herein on October 21, 2010. There was only one property distributed, being Isukha/Shirere/16XX. The estate of the late John Musambayi Katumanga was allocated 0. 13 hectare, Peter Shole Katumanga 0. 18 hectare, Paul Esohe Katumanga 0. 22 hectare, the estate of the late Andrew Shipaka 0. 24 hectare, Raphael Chiteyi Katumanga 0. 32 hectare, Andriano Achesa Katumanga 0. 21 hectare , Vincent Ikalikha Katumanga 0. 22 hectare, the estate of the late Christopher Tsalwa 0. 29 hectare to be held in trust for them by Ann Mutola, Elizabeth Busolo Katumanga Judith Katumanga Denis Korir and Helgah Muteshi 0. 25 hectare, Winslaus Katumanga also known as Noah Katumanga 0. 26 hectare and Moses Milimo Katumanga 0. 20 hectare.

2. Wilmina Muteshi Katumanga, a daughter of the deceased, then brought an application, dated May 30, 2011, for review of the orders of October 21, 2010, on grounds that she had been left out, yet she was not married, saying that the court overly relied on what Paul Esohe Katumanga had informed the court. She also complained that the late John Katumanga and his son had overly benefitted from the estate of the deceased, as they had already been allocated Isukha/Shirere/16XX. In his response to the application, Paul Esohe Katumanga stated that the name of Wilmina had been stated in the application, and the court had considered it alongside others. Elizabeth Katumanga swore an affidavit in which she stated that the deceased had shared out his estate before he died, and a revisit of the distribution would be inconvenient. She has also raised issue about Moses or Musa Shaminikha alias Moses Milimo Katumanga, who she describes as a stranger that the administrator was bringing unlawfully into the matter, as he was not a member of the family. Paul Esohe Katumanga then swore an affidavit to respond, saying that the said Moses Milimo Katumanga was a child of the deceased born outside wedlock. He also denied that the late John Katumanga had been given Isukha/Shirere/16XXinter vivos.

3. When the review application dated May 30, 2011 was placed before diverse Judges, there was consensus that the same be disposed of orally, in a process that would be all inclusive.

4. That oral hearing happened on March 24, 2021. The applicant, Wilmina Muteshi Katumanga, was the first to testify. She averred that she was not involved in the filing of the petition, nor in the confirmation of the grant. She further stated that she was not given a share in the distribution. She stated that she was married, and had acquired property, and that what she had acquired was her own property. She asserted that she was entitled to get a share as a child of the deceased.

5. Elizabeth Anne Busolo- Katumanga followed. She also testified that she had not been given anything out of the estate of the deceased, and that she was only made a trustee of assets devolved to the estate of her late sisters. She identified the grandchildren in question as Dennis Katumanga and Helgah Muteshi, being children of Judith Katumanga and Agnes Katumanga, respectively. She said that she resided on Isukha/Shirere/16XX, and had put up a house there. She said that there was nothing to show that the deceased did not wish her to benefit from the estate. She complained that everything went to the first house. She said that Wilmina was her sister. She said that she did not know whether Musa Shamenekha was a son of the deceased, for he never lived with them. She said although she was in the list of beneficiaries, she was not allocated anything. She complained that although Musa came into the picture late, he was allocated a share in the estate.

6. Peter Shole Katumanga testified on July 15, 2021. He explained that Paul Esohe Katumanga had died, and that he had substituted him as administrator. He asserted that Wilmina had been given a share in the distribution that the court ordered in 2011. He said that Wilmina was also known as Helgah Muteshi Katumanga. He said that his sister Agnes Katumanga died, and her daughter was called Helgah. He stated that the name Wilmina did not appear in the certificate of confirmation of grant. He said that Wilmina was not given a share in the estate as she was married. He said that Wilmina had her own assets and there was no need to give her more. He said that he had acquired her own property. He said that there was no problem with Wilmina getting a share in their father’s estate. He stated that she did not know whether Moses Milimu Shamenekha was a child of the deceased, but he occupied estate property, even though he said he did not know how that came to be. He said he was not the one who brought him in. He said that it was Ann Mutola who had listed all the children of the deceased including Moses Milimu. He said that the late John Katumanga was the eldest child of the deceased, and the deceased had gifted to him a piece of land, being Isukha/Shirere/16XX. He said that John did not buy the land, and that the same had previously belonged to the deceased, and the deceased gave it to John. He said that John was also getting a share in Isukha/Shirere/16XX. He said that the deceased had married two wives, Anna Musavi and Ann Mutola. He had shared out his land between the two houses during his lifetime, and there was a path separating the two pieces of land. He stated that there was no land set apart for Wilmina and Elizabeth, but both cultivated on Isukha/Shirere/16XX. He said that he did not see any reason for getting a larger share of the estate than his sisters. He said that Wilmina was not in court during confirmation. He said that Winslaus got 0. 26 hectare, and that he lived with Wilmina. He said that he was not opposed to the name of Moses Milimu being removed from the matter. He said that Elizabeth was not present at confirmation. He said Helgah and Dennis were sharing 0. 25 hectare with Elizabeth, and that he was getting 0. 18 hectare, which was more than what Elizabeth was getting.

7. At the close of the oral hearing, the parties agreed to file written submissions. I have on record written submissions by Elizabeth Anne Katumanga and Wilmina Muteshi Katumanga. Elizabeth submits that she was allocated 0. 25 hectare as an heir of the late Judith, together with Dennis Korir and Helgah Muteshi Katumanga. She asserts that she is entitled to a separate share. She cites In re Estate of Mugo Njagi (Deceased)[2018] eKLR (Gitari J), to make the point that all the children of a dead person are equal, irrespective of their gender, and regardless of their marital status. She submits that there was an error apparent on the face of the record, that she and her sister Wilmina were left out of the distribution, and were not involved at all. She further submits that the court distributed more acreage than was available on the ground. She submits that the late John Katumanga had benefitted from an inter vivos gift, and was also benefitting from the estate, which disadvantaged the second house. Finally she submits that Musa Milimo Shaminikha was not a child of the deceased or a beneficiary, and should not have been allocated a share in the land. Wilmina makes submissions along similar lines.

8. These proceedings relate to the distribution of the intestate estate of the deceased herein. He died on June 1, 1975, long before the Law of Succession Act, Cap 160, Laws of Kenya, came into force in 1981. By virtue of section 2(2) of the Law of Succession Act, his estate, on distribution, was subject to the written laws and customs applying at the date of his death. That essentially means that the same was subject to customary law, which governed estates of deceased Africans at the time. On procedure, section 2(2) of the Law of Succession Act provides that Part VII shall apply to administration of estates the subject of section 2(2). Customary law is notorious for discriminating against daughters, with respect to inheriting from the estates of the fathers. The expectation under customary law was that daughters would get would married, leave their father’s home, and access land through their husbands at the homes into which they get married. Polygamy was the norm, and was universally accepted, and most women managed to get husbands. As a consequence, at customary law, there was no provision of inheritance by daughters. The only window available was for those daughters who did not marry. They would be entitled to use land at their father’s home, and in the event of his death, a life interest on what they were utilizing, life interest because they still stood a chance of getting married. In the event they did not get married at all, their sons would be entitled to the land that their mothers held at life interest. See generally Republic of Kenya, Report of the Commission on the Law of Succession, 1968, Government Printer, Nairobi; E Cotran, Restatement of African Law:2 Kenya II, The Law of Succession, London, Sweet and Maxwell, 1969; Kanyi vs Muthiora [1984] KLR 712 (Kneller, JA, Chesoni and Nyarangi JJA); and Wambugi w/o Gatimu vs Stephen Nyaga Kimani [1992] 2 KAR 292 (Hancox CJ, Masime and Kwach JJA)

9. The plight of Wilmina and Elizabeth should be seen from that context. The deceased died at a time when customary law held sway. It would appear that their exclusion from benefit was for no other reason than that they were daughters, who were not expected to benefit from the distribution. This cause was initiated in 1999, after the Law of Succession Act had come into force. That did not change the situation, since section 2(2) of the Law of Succession Act applied customary law to the estate of a person dying before 1981. The grant was initially confirmed on January 20, 2000, but that distribution was set aside in 2006, paving way for the distribution of October 21, 2010 the ruling of October 21, 2010, the court did not express itself as applying customary law, but the proposals it was working with were, no doubt, founded on it. I note, for example, that Wilmina was excluded solely because she was married. However, the court expressed itself as being guided by section 40 of the Law of Succession Act, despite the deceased having died in 1975.

10. By the time the ruling of 21st October 2010 was being delivered, the new Constitution of Kenya, 2010, had been promulgated on August 27, 2010. The review that Elizabeth and Wilmina sought through the application dated May 30, 2011 is not premised on the Constitution of Kenya, 2010, but it is not lost on me that it was filed after its promulgation. The new Constitution brought with it notions that were not there under the old Constitution. Section 82 of theold Constitution allowed discriminatory laws, and it was on the basis of that provision that the customary law of succession, which disinherited daughters, operated. Article 27 of the Constitution of Kenya, 2010 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 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, 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. Because of the developments that I have discussed in this paragraph, the application by Elizabeth and Wilmina is inserted.

11. Although the deceased died in 1975, and under section 2(2) of the Law of Succession Act customary law of succession, as it applied in 1975 was applicable, the promulgation of the Constitution of Kenya 2010 has completely changed the matrix. The principles of equality enunciated in Article 27 are now in application, and discrimination founded on gender has been outlawed, and men and women are to be treated equally. The effect of this is to completely blunt the sharp edges of section 2(2) of the Law of Succession Act, and to block the window that it gives for the application of discriminatory African customary laws of succession. That would mean that Elizabeth and Wilmina are entitled to equal treatment with their brothers, so far as distribution of the estate of their deceased father is concerned, notwithstanding that section 2(2) applied to his estate. Consequently, the distribution ordered on October 21, 2010 should be revisited.

12. There is another reason why the distribution should be revisited. The court chose to distribute the estate under the dispositive provisions of the Law of Succession Act, rather than the applicable customary law. The provisions that court, used being sections 35 and 40, do not allow discrimination based on gender. The Law of Succession Act, talks about children, without categorizing them into male and female, or sons and daughters. That presupposes that the law is gender neutral. It treats both gender equally. It does not talk about children, in terms of their marital status, by categorizing them into those that are married and those that are not. All the children of a deceased person ought to be equally provided for, regardless of their gender and marital status. The discrimination visited on Elizabeth and Wilmina, whether on the basis of their gender or marital status, did not have basis in the provisions of the Law of Succession Act.

13. The law governing applications for confirmation of grant is section 71 of the Law of Succession Act and Rules 40 and 41 of theProbate and Administration Rules. These provisions apply whether the estate is subject to section 2(1) or section 2(2) of the Law of Succession Act, or distribution is under customary law or under Part V of the Law of Succession Act. The proviso to section 71, as read together with Rule 40(4), is that the administrator, applying for distribution, must satisfy the court that they had properly ascertained the persons beneficially entitled to a share in the estate and to have had properly ascertained the shares due to such beneficiaries. The effect of it is that the court then incurs a duty to be satisfied, before it confirms the grant, that the administrator asking for confirmation has properly ascertained the persons beneficially entitled to a share in the estate and the shares due to such beneficiaries.

14. The starting point is with the persons beneficially entitled to a share in the estate. Persons beneficially entitled, in the context of intestate succession, refers to two categories. The first is that of the immediate surviving members of the family of the deceased, often referred to as survivors. These are set out in sections 35 to 39, in Part V, of the Law of Succession Act. These include the surviving spouse, children, parents, siblings, grandchildren, and other blood relatives of the deceased, to the sixth degree of consanguinity. The court should be satisfied that these have been ascertained properly, in terms of the administrator properly identifying the persons who have survived the deceased. The second category is that of creditors, mentioned in sections 39 and 66 of the Law of Succession Act, which is of no relevance for purposes of these proceedings. The beneficial interest of the surviving family members arises naturally from their filial relationship with the deceased.

15. Although Elizabeth and Wilmina were disclosed in the petition as children of the deceased, and were also ascertained at confirmation as daughters of the deceased, when it came to allocation of shares, they were left out or otherwise allocated a minimal share. There was, therefore, no compliance with the proviso to section 71(2) and Rule 40(4). In the ruling it would appear that the court did not interrogate why Elizabeth was lumped together with grandchildren of the deceased, and did not question the exclusion of Wilmina altogether. The court noted that Wilmina was being excluded because she was married and had expressed unwillingness to be involved, but it did not question the validity of those propositions. Being married is not a ground, under the Law of Succession Act, to deny a child a right to inheritance. Yet this was being practiced in October 2010, after the new Constitution had become effective. Secondly, there was no proof that Wilmina was not willing to be involved in the matter. There is no evidence that she was aware of the proceedings, and no document was placed on record, where she had renounced or waived her share of inheritance. Rules 40(6) (8) envisage that the confirmation proceedings are bought to attention of beneficiaries, so that they can file affidavits of protest or consents to distribution. There is no evidence that that was done, which would have enabled Wilmina to either file an affidavit of protest or to consent to the proposed modes of distribution, including any that suggested that she should be excluded. There is also no evidence from the record to demonstrate that both Elizabeth and Wilmina attended court on any of the dates when the matter came up in the run up to the distribution orders, and their views were heard on the distribution proposed, contrary to what is envisaged under Rule 41(1) of theProbate and Administration Rules.

16. For Elizabeth, the share allocated to her is not clear. It would appear that is she either shares the same with heirs or beneficiaries of the estate of Judith Katumanga, Dennis Korir and Helgah Muteshi Katumanga. The provision is worded in vague language. Elizabeth herself believes that the provision is to Dennis and Helgah, and that she merely holds the same in trust for them, but that is not what the provision appears to be saying. Whatever the case, the share due to her should be equal to that due to her brothers.

17. I believe I have said enough, to demonstrate that the distribution proceedings were conducted to the total exclusion of Elizabeth and Wilmina, to their detriment, and to demonstrate that they were entitled to equal treatment with their male siblings, to require allocation of equal shares in the estate with them.

18. One of the other issues raised relates to whether John Musambayi Katumanga should be taking a share in the property being distributed, that is to say Isukha/Shirere/16XX. The argument is that he did benefit from a life time or inter vivos gift from his father, being Isukha/Shirere/16XX. That was conceded by Peter Shole Katumanga, who testified that John Musambayi Katumanga was gifted Isukha/Shirere/16XX by the deceased. I have seen a certificate of official search for Isukha/Shirere/16XX. It is dated January 4, 2001, and it shows that John Musambayi Katumanga was registered as proprietor of Isukha/Shirere/16XX on May 4, 1973. The said piece of land measures 0. 21 hectare. In the distribution the court ordered on October 21, 2010, John Musambayi Katumanga is given 0. 13 hectare out of Isukha/Shirere/16XX, which, in addition to the 0. 21 hectare in Isukha/Shirere/16XX, makes a total of 0. 33 hectare. The rest of the beneficiaries get portions ranging from 0. 18 hectare to 0. 32 hectare. No explanation was given for not distributing the estate equally amongst the children as envisaged in section 38 of the Law of Succession Act. It will be noted that this distribution does not include Wilmina. The distribution is uneven. The acreages involved are 0. 13, 0. 18, 0. 22, 0. 24, 0. 32, 0. 21, 0. 22, 0. 29, 0. 25, 0. 26 and 0. 20. Overall, John Musambayi Katumanga gets the largest share, and it may be prudent not to allocate more to him or his estate out of Isukha/Shirere/16XX.

19. Life time or inter vivos gifts are supposed to be taken into account at distribution or confirmation, so that there is equitable distribution, for where they are not so taken into account there would the real possibility that some of the beneficiaries would walk away richer than the others, which would be unfair and unjust. Probate and succession falls largely under equity and trusts. One of the key principles in equity is that equality is equity. The taking into account of previous benefits is required by section 42 of the Law of Succession Act, which provides as follows:“Previous benefits to be brought into accountWhere—(a) an intestate has, during his lifetime or by will, paid, given or settled any property to or for the benefit of a child, grandchild or house; or

(b) property has been appointed or awarded to any child or grandchild under the provisions of section 26 or section 35 of this Act, that property shall be taken into account in determining the share of the net intestate estate finally accruing to the child, grandchild or house.”

20. The other issue revolved around Moses or Musa Milimu Katumanga. Elizabeth and Wilmina argue that he is not a child of the deceased, and he should not have benefitted from the estate. Peter Shore Katumanga agreed with them. He said that he was not among those that introduced him into the matter, claiming that he was son of the deceased born out of wedlock. He stated that the said Moses should not get a share. Elizabeth and Wilmina appear to be aggrieved because this Moses is listed as a member of the second house, to which they belong. His name features right from the beginning when representation was sought. The mother of Elizabeth and Wilmina, Anna Mutola Katumanga, through her affidavit of protest of October 27, 2006, filed in court on February 6, 2007, questioned the status of the said Musa Katumanga, complaining that a portion of the land where she resided had been apportioned to that individual, on the guise that he was her son, which she asserted was not true. The court, in the ruling of October 21, 2010, did not address the issue of the status of Musa or Moses Milimu Katumanga and proceeded to allocate to him a share in the estate. Since this issue still lingers, it should be addressed. Moses Milimu Katumanga did not testify in the oral hearings that were conducted before me. I, therefore, do not have any idea of what his position in the matter is.

21. I was also told that the acreage that the court distributed was larger than what was on the ground. I note that this issue was before the court prior to the orders of October 21, 2010 were made, the mother of the applicants had stated that the land measured 2. 4 hectares, while the other side put it at 2. 62 hectares. The court went with the 2. 62 hectares. No reasons were assigned. A certificate of official search on record, for Isukha/Shirere/16XX, dated May 17, 1999, puts the acreage at 2. 4 hectares. I suppose that should be the correct acreage.

22. Issues have been raised as to the entitlement of John Musambayi Katumanga to a share in Isukha/Shirere/16XX, in view of the previous gift made to him inter vivos of Isukha/Shirere/16XX, and also that of Musa or Moses Milimu Katumanga, also referred to as Moses or Musa Shaminikha. Before I make final orders on the review application dated May 30, 2011, I should give opportunity to John Musambayi Katumanga or, should he be deceased, to the administrators of his estate, and to Moses or Musa or Moses Milimu Katumanga, also referred to as Moses or Musa Shaminikha, or his successors or administrators, of his estate should he be deceased, to make representations on the claims made with respect to their entitlements. I shall allocate a date, at the delivery of this ruling, for mention of the matter, when these two can appear and make their oral representations on oath, and for which they may be cross-examined. Should they fail to attend court on the appointed date, I shall proceed to determine the matter without their input.

DELIVERED, DATED AND SIGNED IN OPEN COURT AT KAKAMEGA THIS 13thDAY OF May 2022W. MUSYOKAJUDGEMr. Erick Zalo, Court Assistant.Mr. Otsyeno, instructed by EK Owinyi & Company, Advocates for Elizabeth Anne Katumanga.Mr. Walunya Indimuli, Advocate for Wilmina Muteshi Katumanga.Mr. Getanda, instructed by EO Getanda & Co, Advocates for Peter Shole Katumanga.