[2022] KEHC 632 (KLR)

In re Estate of Mark Chogo Ligaga(Deceased) (Succession Cause 63 of 2020) [2022] KEHC 632 (KLR) (18 May 2022) (Ruling)

Neutral citation: [2022] KEHC 632 (KLR)

Republic of Kenya

In the High Court at Eldoret

Succession Cause 63 of 2020

RN Nyakundi, J

May 18, 2022

In the matter of

Priscilla Ligaga Kamonya

Petitioner

Ruling

Introduction & Background 1. The deceased, Mark Chogo Ligaga, died on the 15th of April 2020 intestate. From the evidence on record, the deceased was married to the petitioner herein on the 14th of September 1968. The same is confirmed by the copy of the marriage certificate between the deceased and the petitioner marked PLK1.

2. The evidence on record further shows that the marriage between the petitioner and the deceased resulted in 7 issues- 5 girls and 2 boys. The same is confirmed by a copy of letter from chief marked PLK 2 confirming the same. As such, the deceased was survived by 8 dependants being his widow and their 7 children namely Paul Alexander Ligaga, Jillian Kendi Omindo, Nancy Muhonja, Maria Kagai Ligaga Shipiri, Steve Chavera Ligaga, Juliet Idaya Ligaga and Cynthia Sangiru Ligaga.

3. On the 4th of November 2020, grant of letters of administration of the said estate was made to the petitioner. In an affidavit in support of summons for confirmation of grant sworn on the 24th of August 2021, the petitioner averred that the deceased owned the following properties:a.Motor Vehicle KQX xxx – Volvob.Motor Vehicle KAD xxxV – Toyota Corollac.Kakamega/Kongoni/5170 measuring 11. 3 HAd.Kakamega/Kongoni/2862 measuring 0. 25 HA ande.Kakamega/Kongoni/1531 measuring 0. 32 HA

4. Furthermore, the petitioner averred that the identification and shares of all beneficiaries entitled to the said estate had been ascertained and determined as follows:

DESCRIPTION OF PROPERTY NAME SHARE

KAKAMEGA/KONGONI/5170 Edmond Maloba Were- ID No. xxxxxxxKinikonda Achieng Onyango – ID No. xxxxxxx 2. 5 Acres

KAKAMEGA/KONGONI/5170 Timothy Wekesa Amaswa – ID No.xxxxxxxxBrexidis Nafula Mandila – ID No.xxxxxxxx 3 acres

KAKAMEGA/KONGONI/5170 Geofrrey Kegode Gagai – ID No. xxxxxxxx 1 acre

KAKAMEGA/KONGONI/5170 Benard Mugaizi Kidiavai – ID No. xxxxxxxxCaroline Karimi Njagi – ID No. xxxxxxxx 3 acres

KAKAMEGA/KONGONI/5170 Herbert kedogo Tsinjenga 1 acre

KAKAMEGA/KONGONI/5170 Steve Chavera Ligaga 7 acres

KAKAMEGA/KONGONI/5170 Priscilla Ligaga Kamonya 12. 5 acres

MOTOR VEHICLE KQX 938 VOLVO Priscilla Ligaga Kamonya Whole

KAD 317V – TOYOTA COROLLA Priscilla Ligaga Kamonya Whole

KAKAMEGA/KONGONI/2682 Priscilla Ligaga Kamonya Whole

KAKAMEGA/KONGONI/1531 Priscilla Ligaga Kamonya Whole

5. The beneficiaries indeed consented to the above as visible in their consent to confirmation of grant dated the 24th of August 2021.

6. In light of the above, the petitioner swore an affidavit dated the 6th of January 2022 proposing the mode of distribution of the estate of the deceased as highlighted in the table above. She also explained how she and her late husband acquired Kakamega/Kongoni 5170 measuring 11. 3 HA using loans and that they agreed that the same was held in trust for her. She produced copies of the sale agreement, receipts and title to the land marked PLK 3.

7. She also detailed how her late husband sold 2. 5 acres and later on 3 acres to Edmond Were and Kinikonda Achieng and Timothy Weka and Brexidis Nafula respectively in order to fund her treatment in India since she had cancer. The sold parcels were excised from Kakamega/Kongoni/5170. She attached a copy of her medical record marked PLK 4 and copy of sale agreement marked PLK 5.

8. Furthermore, she detailed how she sold a total of 5 acres to Geofrey Kegonde Gagai, Benard Kidiavai and Caroline Njagi and Herbet Tsinjenga excised from Kakamega/Kongoni/5170 in order to offset the huge bill incurred in hospital by her late husband. She thus acknowledged the purchasers of the said property as creditors and confirmed that a total of 10. 5 acres is to be excised from LR No. Kakamega/Kongoni/5170 measuring 11. 3 HAin order to reflect the land sold to the aforementioned persons.

9. In regards to the residue of 17. 5 acres of L.R 5170, the petitioner proposed that her four daughters who are married namely; Nancy Waichanguru Muhonja, Jilian Omindo, Maria Shipiri and Cynthia Chepkwonyi, jointly get 3 acres. Her other daughter, Juliet Ligaga who she noted is not married, is proposed to get 1. 5 acres. Her eldest son Paul Ligaga, whom she noted fully depends on the said land to cater for himself and his family’s basic needs, is proposed to get 5 acres. Finally, her son Steve Ligaga, who is the youngest and last born and is expected to remains with the petitioner at her homestead, is proposed to get 8 acres.

10. With regard to L.R No. Kakamega/Kongoni/2682 and Kakamega/Kongoni/1531, the petitioner proposed that the deceased sister Ruth Chahenza Ligaga who is unmarried and has two children get 0. 79 acres from L.R No 1531 while one Rose Mbaiza Muugasia who bought 0. 5 acres excised from L.R No 2682 gets 0. 5 acres that she bought. A sale agreement marked PLK 8 was attached.

11. The above mode of distribution was supported by the deceased sons Paul Ligaga and Steve Ligaga through their affidavit sworn on the 12th of January 2022. They further reiterated the contents of the petitioner’s affidavit sworn on 6th January 2022 on the fact that as a result of their illness, they left their employment in order to take care of their sick mother. They thus termed the petitioner’s proposed mode of distribution as fair and reasonable.

12. The mode of distribution was partially opposed by the deceased daughters who disputed a number of averments made by the petitioner. In particular, the 5 daughters averred in their affidavit sworn on 1st March 2022 that they were not aware of the existence of any partnership agreements between their parents on any of the properties that were in their late father’s name. Furthermore, the 5 daughters averred that it is untrue that land was sold to cater for their mother’s medical treatment in India between January 2017 and April 2018. It was their view that the petitioner’s cancer treatment was paid for largely through contributions from immediate family, well-wishers and NHIF and that the same was channeled through Mpesa Till 566977-Priscilla Ligaga Medical Fund and was managed by Maria Ligaga Shipiri.

13. They further confirmed that 3 acres were sold to Benard Mugaizi and Caroline Karimi Njagi abd 1 acre to Geoffrey Kegonde Gagai. However, they disputed the averment by the Petitioner that 1 acre was sold to Herbert Kedogo to pay ICU bills for their deceased father. Rather, they averred that the bill was paid by Benard Mugaizi via wire transfer from Equity Bank directly to the Petitioner’s account. Further to the foregoing, they averred that the transaction between Herbert Kedogo and the petitioner as regards the sale of the 1 acre had nothing to do with their father’s bills since the bills had already been fully paid by the 8th of June 2021 when the transaction between Kedogo Herbert and the Petitioner took place.

14. Finally, they thus proposed that the estate of the deceased be distributed as proposed by the 5 of them in their affidavit sworn on the 17th of January 2022 as follows;a.Motor vehicle Reg Nos KQX xxx Volvo, KVG xxx Volvo, KAD xxx V Toyota Corolla, Tractor KAB xxxL and Tata Pick Up be apportioned to the Petitioner absolutely.b.All credit balance in the deceased name held at Equity Bank, Eldoret be apportioned to the Petitioner.c.250 Ordinary shares held by the deceased in Branch & Stem Enterprises Ltd be apportioned to the 8 beneficiaries equally.d.Land parcel LR.No. Kakamega/Kongoni/2862 measuring 0. 25 HA or 0. 61 acres approximately be apportioned to the petitioner absolutely.e.That the remaining 11 acres be divided among the 5 daughters equally after making a provision for connecting roads.f.That LR No Kakamega/Kongoni/1531 measuring 0. 32 ha or 0. 79 acres be registered in the name of their paternal aunt Ruth Chahenza Ligaga.g.That L.R No Kakamega/Kongoni/5170 measuring 11. 3 ha be divided according to the purchaser’s interest including 2. 5 acres to Edmond Maloba Were and Kinikonda Achieng jointly, 3 acres to Timothy Wekesa Amaswa and Brexidis Nafula Mandila jointly, 1 acre to Geoffrey Kegode Gaga and 1 acre to Herbert Kedogo Tsinjenga.

Determination 15. I have considered the entire evidence and the submissions of all parties and find the only issue for determination to be which mode of distribution is fair?

16. There is no dispute that the deceased died intestate on the 17th of March 2020 and was survived by 8 beneficiaries being the widow and 7 children.

17. It seems to me that there is no issue as regards the distribution of the movable assets especially the Motor Vehicles Registration Numbers KQX xxx Volvo, KVG xxx Volvo, KAD xxxV Toyota Corolla, Tata Pick Up and Tractor Registration Number KAB xxxL Massey Ferguson. All the parties are in agreement that the same be apportioned to the petitioner absolutely. The same is thus affirmed and adopted by Court.

18. As regards LR.No. Kakamega/kongoni/5170 Measuring 11. 3 HA, there is no dispute as regards the purchasers who all parties have acknowledged have become creditors in the estate pursuant to the Law of Succession Act. It was confirmed by all parties that 10. 5 acres should be excised from this asset to reflect the 2. 5 acres that was sold to Edmond Maloba Were and Kinikonda Achieng-2. 5 acres, 3 acres to timothy Wekesa and Brexidis Mandila, 1 acre to Geoffrey Gagai, 3 acres to Benard Kidiavai and Caroline Karimi Njagi and 1 acre to Herbert Kedogo. Evidence of the sale were availed to court. Consequently, the same is thus affirmed by court.

19. In regards to the residue of 17. 5 acres remaining in LR.No. Kakamega/kongoni/5170, the petitioner proposed that her 4 daughters whom she indicated are married and have properties from where they are married jointly get 3 acres while her other daughter unmarried should get 1. 5 acres. She also proposed her eldest son Paul, should get 5 acres while her youngest son Steve, should get 8 acres including the petitioner’s life interest.

20. It seems to be that the 4 daughters of the deceased have been allocated a paltry 3 acres jointly on no other basis than the fact that they are married. This is evident from the fact that the unmarried daughter has been allocated 1. 5 acres. Even then, it seems that for her, she has also been allocated less than the other children for the mere fact that she is a woman.

21. I have consistently held that the ultimate beneficiaries of the estate of a deceased person are his/her children and it matters not their gender. For as long as they are children of the deceased, they are entitled to the estate of the deceased. For a considerable period of time, community customs were discriminatory towards daughters whether married or unmarried and children born out of wedlock or of an adulterous union. The law of succession does not define who a child is. However, case law has long established that the law of succession does not distinguish between male and female children or children born out of wedlock.

22. In Stephen Gitonga M’murithi vs. Faith Ngira Murithi [2015] eKLR, the Court of Appeal made it explicit that, for the purposes of the law of succession, the children of a deceased are equal, irrespective of their gender or marital status. It accordingly held that:“…Section 38 enshrines the principle of equal distribution of the net intestate estate to the surviving children irrespective of gender and whether married and comfortable in their marriage or unmarried. Section 40 on the other hand enjoins the inclusion of a surviving spouse as an additional unit to each household of a polygamous deceased. Applying the above principles … it is our finding that the learned trial Judge fell into an error when he failed to accord equal distribution to all the children of the deceased in violation of the section 38 of the Law of Succession Act by discriminating against the married daughters of the deceased…”

23. A similar posturing was taken by Hon. Lesiit, J. in Eliseus Mbura M’Thara vs. Harriet Ciambaka and Another [2012] eKLR, thus:“The Law of Succession Act does not discriminate between gender in matters of succession or inheritance. Under the Law of Succession Act and indeed under the Constitution a child is a child and every person has equal rights under the law irrespective of gender. The Law of Succession Act does not discriminate between married or unmarried daughters but gives them equal rights to inheritance as the other children (sons) of a deceased person.”

24. Hon. Kimaru, J. in Peter Karumbi Keingati & 4 Others vs. Dr. Ann Nyokabi Nguithi [2014] eKLR likewise held thus:“…The decision by a daughter or a son to get married has no bearing at all to whether or not such a son or daughter is entitled to inherit the property that comprise the estate of their deceased parents…This court is of the view that the time has come for the ghost of retrogressive customary practices that discriminate against women, which have a tendency of once in a while rearing its ugly head to be forever buried. This ghost has long cast its shadow in our legal system despite numerous court decisions that have declared such customs to be backward and repugnant to justice and morality. With the promulgation of the Constitution 2010, particularly Article 27 that prohibits discrimination of persons on the basis of their sex, marital status or social status, among others, the time has now come for these discriminative cultural practices against women to be buried in history.”

25. In agreeing with the above sentiments, I must note that with the greatest respect that the to deny a woman/girl her duly right and interest in the estate of her parent(s) smirks of full throttled patriarchy that flies in the face of current conceptions of what is fair and reasonable. The same cannot stand scrutiny; not least because it is plainly discriminatory of itself and in its effect. It is anachronistic and misplaced notwithstanding that it is continuously practiced as a norm by a vast majority of communities in this country. It flies against the great introspect that Article 27(4) of ourConstitution provides against discrimination on inter-alia ground of gender.

26. Courts have long accepted that a child is a child none being lesser on account of gender or the circumstance of his or her birth. Each has a share without shame or fear in the parents’ inheritance and may boldly approach to claim it. In fact, recent case law, perhaps informed by the Constitution of Kenya and Section 41 of the LSA, are to the effect that where the deceased is survived by a spouse and children, it is only fair that they each get an equal share in the estate of the deceased for purposes of fairness.

27. Accordingly, I find the proposed mode of distribution made by the petitioner to be unfair, discriminatory and unconstitutional. In the interest of fairness, justice and equality, the residue of 17. 4 acres to be excised from LR No Kakamega/kongoni/5170 shall be divided equally amongst the 8 beneficiaries.

28. In regards to LR No Kakamega/kongoni/1531 Measuring 0. 32 HA or 0. 79 acres, there is no dispute that the same was bought by one Ruth Chahenza Ligaga but registered in the name of the deceased. All the beneficiaries have confirmed the same and agreed that the same be registered in the name of Ruth Chahenza Ligaga. There being no dispute, the same is adopted by court and shall be registered to the said Ruth Chahenza Ligaga.

29. As regards asset Kakamega/kongoni/2862, the petitioner proposed that 0. 5 acres be excised and be registered in the name of Rose Mbaiza Muugasia whom she averred the deceased sold land to. She attached the sale agreement. The same was not disputed by the other beneficiaries. The same is thus affirmed.

30. The only dispute as regards this asset is the residue of 11 acres which the 5 daughters proposed that the same be divided equally amongst them only. The daughters also seem to question the issue of asset 1531 which the petitioner averred she jointly owned with the deceased. I have perused the title deeds of the land parcels Kakamega/kongoni/1531 and Kakamega/kongoni/2862 issued on the 24th of January 2007 and 28th June 2002 respectively. The same indicate that the absolute owner was the deceased Mark Chogo Ligaga. There is no indication that the property was ever registered jointly in the names of the deceased and the petitioner. Consequently, upon the death of the deceased, the properties formed part of his estate for distribution.

31. Accordingly, it is my finding that the two parcels of land excluding those of purchasers’ interests, be shared equally amongst all the beneficiaries.

32. Finally, considering that the deceased owned 250 ordinary shares in Stem and Branch company which the official company record indicates, the same shall be divided equally between all the beneficiaries.

33. In the end, the estate of the deceased is to be distributed as follows:1. The movable assets especially the Motor Vehicles Registration Numbers KQX xxx Volvo, KVG xxx Volvo, KAD xxxV Toyota Corolla, Tata Pick Up and Tractor Registration Number KAB xxxL Massey Ferguson are hereby apportioned to the petitioner absolutely.2. The residue of 17. 4 acres to be excised from LR No Kakamega/kongoni/5170 to be divided equally amongst the 8 beneficiaries.3. The residue of Kakamega/kongoni/2862and Kakamega/kongoni/1531 be divided equally amongst the 8 beneficiaries.4. That the 250 shares held by the deceased in Stem and Branch Company be divided equally amongst the 8 beneficiaries.

34. This being a family matter, each party to bear own costs.

35. Orders accordingly.

DATED, SIGNED AND DELIVERED VIA EMAIL AT ELDORET THIS 18TH DAY OF MAY, 2022. R. NYAKUNDIJUDGE