[2023] KEHC 25027 (KLR)

In re Estate of Lawrence Katumanga Likhanga (Deceased) (Succession Cause 250 of 1999) [2023] KEHC 25027 (KLR) (7 November 2023) (Judgment)

Neutral citation: [2023] KEHC 25027 (KLR)

Republic of Kenya

In the High Court at Kakamega

Succession Cause 250 of 1999

SC Chirchir, J

November 7, 2023

In re Estate of Lawrence Katumanga Likhanga (Deceased)

Between

Paul Eshohe Katumanga

Administrator

and

Elizabeth Anne Katumanga

1st Applicant

Wilmina Muteshi Katumanga

2nd Applicant

Judgment

1. What is coming up for consideration is the Application dated 30/5/2011. It seeks for the following orders:a).That this honourable court be pleased to review its order/ Ruling delivered on 21st October 2010

b).That the share given to Elizabeth Anne Katumanga be reviewed

c).That Wilma Muteshi Katumanga , who was left in the sharing of the Estate of the deceased to share a part of the Estate.

2. The grounds for review are that the Applicants, despite being the children of the deceased were left out of the distribution of the Deceased’s Estate; that the Applicants did not participate in the proceedings for confirmation of Grant; that their views were not obtained during the sharing of the property; and finally that the property available for distribution is only 2. 4 hectares.

3. The Application is opposed by the Administrator.

4. The court gave directions for the Application to be heard by way of oral Evidence .

The Evidence 5. PW 1 was the 2nd Applicant herein. She told the court that she was not involved in the process of filing for the petition or the summons for the confirmation of Grant; that she was left out in the sharing of the property ; that she was a child of the deceased and that she believes she was excluded by virtue of the fact that she was married. She insisted that she was entitled to a share of the Estate.

6. PW2 was the 1st Applicant. She told the court that she was a child of the deceased, yet she was left out of the sharing of the property; That she was only made a trustee of the shares of the children of her Deceased sisters’ namely Dennis Korir and Helda Muteshi. She prayed for fresh distribution of the property that would take into account her share.

7. On cross- examination she told the court that Dennis was the son of her sister , Judith Katumanga , while Helga Muteshi was the child of Agnes Katumanga . Both sisters have passed on. She further stated that she did not know whether Moses was the son of the deceased.

8. On cross- examination, she admitted that she appears on the list of the survivors but she was not allocated a share of the land; that paul Katumanga is the one who included Moses in the list of beneficiaries.

9. DW1 was peter Shole Katumanga. He took up the Administration of the Estate upon the demise of his brother, Paul Esohe Katumanga He adopted the Affidavits sworn on 17. 11. 2011 and 16. 10. 2015 by his late brother as his evidence- in – chief. In said Affidavits he accuses the Applicants of merely delaying the distribution while insisting that they were fully aware of the succession proceedings. He further stated that the inclusion of Moses was done following a family meeting held on 12- 5- 2000 where it was agreed that Moses was a child of the Deceased, born out of wedlock ,and should get a share of the deceased’s property.

10. On cross- examination, he admitted that the 2nd Applicant was his sister ; that the land in dispute is parcel No. 1659. He insisted that wilimina , the 2nd Applicant is also called Helga Muteshi. That Helga is the daughter to his late sister Agnes. He told the court that Wilma was not given a share because she was married , and she had her own property. He however agreed that she could get her share of the land.

11. He further told the court that Moses, whose full name he gave as Moses Milimo Shamereka was small when their father died. He was not sure if Moses was a child of the deceased. He told the court that the name Shamerekah was Moses’s foster father’s name. He insisted that it is the Applicants’ mother who listed Moses as one of the children of the deceased.

12. He further told the court that his elder brother John, now deceased, had been given land by his father ; that is the land in question is parcel No. 1656. The land was given to John during the life time of their father. That the same John also got a share of parcel No. 1659. His father had 2 wives , and that before he died, he had shared out the land between the houses of the two wives. He denied having done any construction on the portion meant for the 2nd Applicant. He told the court that the portion allocated to him was 0. 18 ha. He admitted that the 2nd Applicant was not in court when the confirmation hearing was being conducted.

13. On cross- examination , he admitted that Helga , Dennis and Elizabeth were given 0. 25 ha of the land to share between themselves. The Respondent then closed his case.

14. Upon conclusion of the hearing , Justice Musyoka delivered a ruling in which he considered various issues arising from the proceedings ,but did not make a finding on distribution. The Hon. Judge in the Ruling delivered on 22nd may 2022, indicated that Moses Shamereka also referred to as Musa Milimu Katumanga who had been mentioned adversely by the witnesses should be heard. The Judge further ordered John Katumanga or his heir, if deceased, to appear and respond to the allegation that the deceased had given him parcel No. 1656 during his lifetime. The two witnesses appeared and testified on 28th march 2023.

15. Moses Milimo Shyameneka , adopted his Affidavit sworn on 14th July 2022 as his evidence- in -chief. In the said affidavit , he stated that the deceased was his father; that his mother, one Elizabeth Ikhuba was not married to the deceased; that the deceased had 2 wives , Anna Mutola and Anna Musavi; that he was raised by his maternal grandmother and mother. That his grandmother’s home was close to the deceased’s home and so he would often go over to socialise with his siblings. He then went on to list all his alleged siblings from both the 1st and 2nd house.

16. He further told the court that in the year 2000, he was invited home by his step brothers, Adrian and elder brother paul Katumanga . That the invitation was to give him a chance to participate in the sub division of the deceased’s land; he said that he was allocated his portion which he has since developed.

17. On cross- examination he told the court that his mother was not mentioned because she had separated from the deceased. He told the court that his inclusion among the children of the Anna Mutola was because he used to stay in the said home most of the time. He admitted that he had no document to show that he was a child of the deceased. He further told the court that he was about 2 years old when his mother separated with the deceased.

18. Tom Dennis Musambayi was the next witness. He adopted his affidavit sworn on 20/6/2023. He told the court that he was the son of John Katumanga , the son of the deceased; that his father passed on in the course of these succession proceedings. He told the court that he knew Moses and that Moses was his uncle. They grew up together in his grandfather’s place though Moses kept going and coming ; That parcel No. 1656 was part of the deceased Estate but is now registered in his father’s name .

19. He further told the court that his family has no interest in parcel No. 1659; he however stated that the portion that had been allocated to his father has been retained as the burial ground for the entire family.

20. On cross- examination , he prayed that the existing distribution be maintained.

1st Applicant’s submissions 21. The 1st Applicant reiterates that she is entitle to a share of the Estate land like her siblings. In this regard she has relied in the case of Re Mugo Njagi ( 2018) e KLR ; that her share should be separate from that given to her sisters’ children. She further submits that the acreage of 2. 6 hectares expressed in the certificate of confirmation was erroneous as the actual acreage of the land is 2. 4 ha. The Applicant further submits that the additional acreage given to Johm katumanga unfairly disadvantaged the 2nd house as John already had land that had been given to him by the deceased. . It is finally submitted that Moses Katumanga is a stranger to the Estate and his share should revert to the 2nd house.

2nd Applicant’s submissions. 22. The 2nd Applicant submits that the constitution protects her right to equality and non- discrimination and therefore she should not be discriminated against in the distribution of her father’s Esate

23. She adopts the 1st Applicant submission to the effect that Moses is not a survivor of the deceased; that their eldest brother John Katumanga had adequately been provided for during the life time of the Deceased.

24. The Respondent did not file submissions.

Determination. 25. The proceedings herein relate to the Estate of Lawrence Katumanga Likhang( Deceased). He had two wives , namely Anna Musavi (1st wife) and Anna Mutola ( 2nd wife). It is not indicated when the first wife died but the 2nd one died after the demise of the deceased. The tussle for the property of the Estate is therefore between the children. Three key issues arise for determination in this Application:1. Whether the Applicants should have a share in the property of the deceased

2. Whether the moses Milimo katumanga alias shekeramani is an heir of the deceased

3. Whether the Estate of John Katumanga should have a share in parcel Isukha/ Shirere/ 1659 .

4. What is the appropriate mode of distribution.

Whether the Applicant’s should have a share in the property of the Estate. 26. It clearly emerged from the various testimonies that the Applicants are children of the deceased . According to the respondent, it is apparent that the fact that 2nd Applicant had other properties and was married were the key reasons for her exclusion. To the extent that the Applicants were children of the deceased , they are entitled to a share of the Estate within the context of sections 35 to 38 of the Law of succession Act.( The Act). There was no valid reason as to why the 2nd Applicant was left out of distribution. The aforesaid sections of the Act make no distinction between the deceased’s children on any ground, be it their economic or marital status. The 2nd Applicant’s complain in this regard is valid and she is entitled to a review of the orders.

27. For the 1st Applicant the certificate of confirmation of Grant shows that she was allocated 0. 25 hectares to share equally between herself , Dennis korir and Helgan Muteshi. The 1st Applicant has stated that she was not given any share. That is not the correct position however. The record shows that she was allocated 0. 25 ha but she was to share the same portion with Dennis Korir and Helga Muteshi. The Applicants and the respondent told the court that Dennis is the child of their late sister Judith, while Helga is the child of another late sister, Agnes. It follows that Dennis and Helga were taking up the respective shares of their late mothers , who as children of the deceased, were entitled to the share of the Estate. It is not clear therefore why they were lumped together with the 1st Applicant and allocated 0. 25 ha to share between themselves. As pointed out by the Applicants this will translates to less than 0. 10 ha per person.( the exact size will be will be 0. 08). This will result in discrimination between the children of the deceased and a violation of Article 27 of the constitution. Consequently the 1st Applicant’s case is equally merited.

Moses milimo katumunga alias Moses/ musa shamerekha 28. Doubts were raised as to whether Moses was the son of the deceased , forcing the court to summon him to testify. By the time he responded to the summons, I had already taken up the conduct of these proceedings . Moses gave an account of his relationship to the deceased , his mother , the deceased’s two wives ,and listed all his step siblings in a matter of fact way. He told the court that he was brought up by his maternal grandmother and mother but he would often visit the deceased’s home as he lived near by; that he took up his foster- father’s home . He did not appear to me as someone who was desperate to align himself with the family of the deceased for purposes of deriving a benefit that he was not entitled to .

29. Further, despite his later denial, when he testified in court, the Respondent in his written statement, had stated that a family meeting was held in the year 2000 in which the family members agreed that Moses was a child of the deceased ,who was born outside wedlock . This tallies with Moses testimony that in the same year, he was asked to go to the deceased home by the respondent and Adrian so as to participate in the distribution of the deceased’s land.

30. Tom, the son of John Katumanga , who was the first Administrator, told the court that Moses was his uncle ; that they had grown up together though Moses used to come and go. In view of the aforegoing, I have no reason to doubt that Moses was a child of the deceased and he is equally entitled to a share of the Estate .

Entitlement of the Estate of John katumanga 31. John Katumanga was the first- born son of the deceased and was originally appointed as the Administrator of the Estate alongside his step mother, Anna Mutola. These first Administrators have since passed on and the Administration taken over by the Respondent herein. During the distribution, his children were allocated 0. 13 ha from parcel No. 1659. Testimonies from both sides indicate that the John Katumanga had been given parcel No. 1656 by the deceased as a gift . Tom masumbayi , the son of said John told the court that his family has no interest in parcel No. 1659 as they had been adequately provided for on account of their father having been given parcel No. 1656. There was a general agreement therefore that John Katumanga had been gifted with parcel No. 1656 during the life- time of the deceased.

32. Gifts made during the life time of a deceased person are gifts intervivos . The requirement of the law is that a gift intervivos has to be taken into consideration during the distribution of the deceased property , so as not to give advantage to the beneficiary who had received a gift during the life time of the deceased ( Ref. section 42 of the Act).

33. Attached to Tom’s affidavit sworn on 20th June 2023 is a certified copy of the register for parcel No. Isukha/ Shirere/ 1656. It reflects an acreage of 0. 21 hectares. It is observed that the deceased herein has over 10 children and the land available for distribution is about 2. 4 hectares. I consider the gift intervivos to the John Katumanga’s Esate as adequate provision therefore . This will leave parcel No. 1659 to the other children to share.

34. It is common ground that the only available asset for distribution is parcel No. Isukha/ Shirere /1659 and as stated herein before, the deceased children are all equally entitled to the share of the Estate. Even though there are two houses , none of the deceased ‘s wife is alive. Consequently, the applicable section for purposes of distribution is section 38 of the Act which provide for equal distribution between the deceased’s surviving children. Section 38 provides as follows;“Where an intestate has left a surviving child or children but no spouse, the net intestate estate shall, subject to the provisions of sections 41 and 42, devolve upon the surviving child, if there be only one, or shall be equally divided among the surviving children”.

35. The Applicants have complained that the “ first house” have taken up the larger portion of the land. However even if the property was to be divided pursuant to the provisions of section 40, my view is that the net effect is the same, namely equal distribution of the property amongst the deceased’s survivors.

36. Consequently , with the exception of the family of John Katumanga the above parcel shall be distributed equally between the deceased children or their Estates in respect of those who have since died.

37. From the Affidavit of the Applicants , the Evidence tendered in this court, and my findings as aforesaid, this court has identified the following heirs or their Estates as being entitled to a share Land parcel No Isukha/ Shirere /1659:1. Peter Shole Katumanga2. The Estate of paul Esohe Katumanga3. The Estate of Andrew Shipaka4. Raphael Chleyi Katumanga5. Adrian Acheka Katumanga6. Vincent Ikalikha Katumanga7. The Estate of Christopher Tsalwa8. Elizabeth Busolo Katumanga9. Wilmina Katumanga10. Winslaus katumanga a.k.a Noah Katumanga11. Dennis Korir12. Helgah Muteshe Katumanga13. Moses Milimo Shyamenekha alias Moses milimo katumanga

38. In conclusion , I hereby proceed to make the following orders:a.This court’s orders on distribution made on 21st October 2010 and the subsequent certificate of confirmation of Grant issued on 11th October 2010 are hereby set asideb.The whole of that parcel of land known as Title No. Isukha/ Shirere / 1659 shall be divided between the beneficiaries listed in paragraph 34 hereof in Equal sharesc.The share due to Dennis Korir and Helgah Muteshe Katumanga shall both be held in Trust by Elizabeth Busolo Katumangad.A new certificate of confirmation of Grant to issue forthwith.

DATED , SIGNED AND DELIVERED AT KAKAMEGA THIS 7TH DAY OF NOVEMBER, 2023. S.CHIRCHIR