[2023] KEHC 18388 (KLR)
The court held that the applications for confirmation of grant were invalid because the administrators failed to disclose all the deceased's daughters as beneficiaries, in violation of the Law of Succession Act and the Constitution. The court emphasized that both statutory and constitutional law require equal...
Source-derived case information.
- Citation
- [2023] KEHC 18388 (KLR)
- Parties
- Applicant: Alfred Chekeni Lumakanda; Applicant: Owili Lumakanda
- Court
- High Court
- Court Station
- High Court at Kakamega
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 25 of 2002
- Procedural Posture
- Succession Cause / Ruling on Confirmation of Grant Applications
- Outcome
- Administrators given 30 days to file affidavit disclosing all sons and daughters and their shares; applications to stand dismissed if they default.
- Judges
- WM Musyoka
- Legal Topics
- Intestate Succession, Equal Distribution, Gender Equality, Customary Law Invalidity
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Alfred Chekeni Lumakanda
Applicant
Owili Lumakanda
Applicant
Procedural Posture
Succession Cause / Ruling on Confirmation of Grant Applications
Legal Issues
- 1 Whether the administrators properly ascertained and disclosed all beneficiaries entitled to the estate, including daughters, as required by law.
- 2 Whether applications for confirmation of grant that exclude daughters are valid under the Law of Succession Act and the Constitution.
- 3 Whether customary law can be relied upon to exclude female beneficiaries from inheritance.
Ratio Decidendi
The court held that the applications for confirmation of grant were invalid because the administrators failed to disclose all the deceased's daughters as beneficiaries, in violation of the Law of Succession Act and the Constitution. The court emphasized that both statutory and constitutional law require equal treatment of sons and daughters in succession matters, and any reliance on customary law to exclude women is unconstitutional and void. The court gave the administrators a final opportunity to comply by filing a further affidavit disclosing all beneficiaries and their proposed shares within 30 days, failing which the applications would stand dismissed.
Court Disposition
Administrators given 30 days to file affidavit disclosing all sons and daughters and their shares; applications to stand dismissed if they default.
Orders
- Administrators to file a further affidavit within 30 days disclosing all sons and daughters of the deceased and allocating their due shares.
- In default of filing the affidavit, the applications dated November 27, 2006, May 13, 2022, and May 16, 2022, shall stand dismissed.
Full Case Text
Judgment text and source record
17 paragraphs
In re Estate of Lumakanda Katuyi (Deceased) (Succession Cause 25 of 2002) [2023] KEHC 18388 (KLR) (2 June 2023) (Ruling)
Neutral citation: [2023] KEHC 18388 (KLR)
Republic of Kenya
In the High Court at Kakamega
Succession Cause 25 of 2002
WM Musyoka, J
June 2, 2023
IN THE MATTER OF THE ESTATE OF LUMAKANDA KATUYI (DECEASED)
Ruling
1. I am called upon to determine an application for confirmation of grant. There are several such applications pending, although the one that I fixed for hearing is dated November 27, 2006. The applications, dated May 13, 2022 and May 16, 2022, are also for confirmation of grant, but brought by different persons and make different proposals.
2. I did preliminary hearings on February 14, 2022, July 18, 2022 and January 30, 2023. It emerged that the administrators had not properly ascertained the persons who are beneficially entitled to a share in the estate, as required of them by the proviso to section 71(2) of the Law of Succession Act, cap 160, Laws of Kenya, and Rule 40(4) of the Probate and Administration Rules, as it transpired that the deceased had 6 daughters, who had not been disclosed in the petition and the applications. When I directed that the 6 be produced in court, only 1 was availed, Hellen Wafula.
3. The deceased herein died in 1983, after the Law of Succession Act had come into force. That means that distribution of the estate is governed by the Law of Succession Act. He died intestate, meaning that the estate is for distribution under Part V of the Law of Succession Act. Under Part V, sons and daughters of the deceased are treated equally, and are entitled to equal share in the estate. Sections 35(5) and 38 state that position in mandatory terms. So, both all the sons and all the daughters of the deceased must be disclosed.
4. Part V is for reading together with article 27 of theConstitution, which commands that men and women be treated equally, and it also outlaws discrimination based on gender. See Ludiah Chemutai Bett v Joseph Kiprop Tanui [2017] eKLR (M Ngugi, J). Article 2(4) of the Constitution makes any law, which is inconsistent with theConstitution, null and void, including customary law. It is notorious that African customary law discriminates against women when it comes to succession. Article 2(4) of theConstitution renders African customary law null and void, where it is inconsistent with theConstitution. If Luhya customary law is the basis for the administrators herein not disclosing the 6 daughters of the deceased, then they should understand that they are relying on a law which the Constitution has rendered null and void. See In re Estate of M’Itunga M’Imbutu (Deceased) [2018] eKLR (Gikonyo, J), In re Estate of Stanley Mugambi M’Muketha (Deceased) [2019] eKLR (Gikonyo, J) and Wanjiru & 4 others v Kimani & 3 others (Civil Appeal 36 of 2014) [2021] KECA 362 (KLR) (W Karanja, HA Omondi & Laibuta, JJA).
5. Article 2(4) of theConstitution also renders invalid any act, by anyone, including the court, if it violates or contravenes the Constitution. The failure or omission to disclose the 6 daughters of the deceased, in this cause, is an act which violates or contravenes Article 27, for it discriminates against the 6 daughters of the deceased. That act of discrimination renders the applications, that have been placed before me, invalid. It also renders any order that I may make, on distribution of the estate, based on the invalid applications, invalid. Proceeding to determine the applications before me, for as long as they do not disclose the 6 daughters, would be to act in vain, for the orders would be nullities. See In re Estate of M’Itunga M’Imbutu (Deceased) [2018] eKLR (Gikonyo, J), In re Estate of Stanley Mugambi M’Muketha (Deceased) [2019] eKLR (Gikonyo, J) and Wanjiru & 4 others v Kimani & 3 others (Civil Appeal 36 of 2014) [2021] KECA 362 (KLR) (W Karanja, HA Omondi & Laibuta, JJA).
6. I gave the administrators a chance to bring the 6 daughters to court, so that the court could take their views, but they did not comply. The administrators should understand that proceeding with succession causes where the daughters do not participate does not mean that the daughters will be deemed to have abandoned their entitlement, for the court should proceed to provide for them even if they do not participate. See ChristineWangari Gichigi v ElizabethWanjira Evans & 11 others [2014] eKLR (Emukule, J) and In re Estate of Joyce Kanjiru Njiru (Deceased) [2017] eKLR (Gitari, J).
7. I will give the administrators a second chance, before dismissing their applications, for being non-compliant with articles 2(4) and 27 of theConstitution. They shall file a further affidavit, where they shall disclose all the sons and all the daughters of the deceased, and allocating to them their due share of the estate. The affidavit shall be filed within 30 days, and, in the event of default, the applications, dated November 27, 2006, May 13, 2022 and May 16, 2022, shall stand dismissed. Orders accordingly.
DELIVERED, DATED AND SIGNED IN OPEN COURT AT KAKAMEGA ON THIS 2ND DAY OF JUNE 2023WM MUSYOKAJUDGEMr. Erick Zalo, Court Assistant.AppearancesAlfred Chekeni Lumakanda and Owili Lumakanda, the administrators, in person.