[2023] KEHC 24271 (KLR)

In re Estate of Matayo Waphukha (Deceased) (Succession Cause 120 of 1999) [2023] KEHC 24271 (KLR) (27 October 2023) (Judgment)

Neutral citation: [2023] KEHC 24271 (KLR)

Republic of Kenya

In the High Court at Bungoma

Succession Cause 120 of 1999

DK Kemei, J

October 27, 2023

IN THE MATTER OF THE ESTATE OF MATAYO WAPHUKHA (DECEASED) AND IN THE MATTER OF AN APPLICATION FOR GRANT OF LETTER OF ADMINISTRATION

Between

Titus B. Wapukha

Petitioner

and

Eliud Matayo Wapukha

Objector

Judgment

Background 1. This matter was commenced by a petition for summons for confirmation of grant by one Jason Makhumi Wapukha for the estate of Matayo Wapukha who died intestate in the year 1986. The deceased had eight (8) wives, thirty-six (36) children with 18(eighteen) sons and 18(eighteen) daughters. The court upon considering the petition appointed the abovementioned petitioner as administrator of the estate of the deceased. Various objections which were later withdrawn were filed by parties who claimed to have purchased the property from the beneficiaries of the estate. Unfortunately, before the grant was confirmed, the administrator passed on and that the petitioner herein Titus Biketi Waphuka substituted him vide grant of letters of administration issued on 17th May,2022.

2. The said administrator filed summons for confirmation dated 27th September, 2022 attaching a list of distribution of the deceased’s estate. The objector herein filed an objection to the mode of distribution dated 8th November,2022.

3. The petitioner is said to have distribute the estate of the deceased leaving out the daughters of the deceased. The parties were unable to agree on the mode of distribution. As a result, the parties tendered oral evidence in that regard. They then filed written submissions.

Objector’s case and submissions 4. OB. PW1 Eliud Matayo Wapukha testified that he was a son to the deceased, from the 7th house and a step- brother to the petitioner. He adopted his statement and list of documents dated 10/3/2023 as Exhibit 1-6 which were copies of ID’s while Exhibit 7-12 were copies of land sale agreements. He stated that the statement by the Petitioner had listed strangers to the estate of the deceased and refuted the allegations that the Chwele plot had been sold by the family to the Petitioner. It was his statement that he was aged 10 years when subdivision of the estate took place.

5. In cross-examination, he maintained that no boundaries were fixed on the parcels of land and that the deceased did not distribute the land. It was his statement that the deceased had four plots with the Chwele plot being Plot No.10 although he did not have searches for the properties.

6. OB.PW2 Joseph Sikolia Wapukha testified that he was the son of the deceased, from the 2nd house while the Petitioner was his step-brother from the 4th house. He adopted his witness statement dated 10/3/2023 as his evidence in chief. He testified that the Petitioner has listed strangers in his statement excluding his sisters and two widows of the deceased. He testified that prior to his death, the deceased had not distributed the estate. He testified that among the sale agreements produced by the Petitioner dated 22/9/2003, his signature was forged and one of his brothers namely Peter who had died in the year 2002 had been indicated as a signatory.

7. In cross examination, he stated that he resides in Chebukaka which is his ancestral land and that he did not have the death certificate of the alleged deceased brother he alluded to in examination in chief.

8. OB.PW3 John Sikolia Waphuka testified that he was the son of the deceased, from the 4th house and that the Petitioner was his step-brother. He adopted his statement dated 10/3/2023 and reiterated the evidence by the objector. He added that the petitioner used to lease the Chwele plot as he did not purchase it. On cross-examination, he stated that he did not have the lease agreement over the Chwele plot No. 10 and that he did not act as secretary during the alleged sale.

9. OB.PW4 Eunice Nanjala Wapukha testified that she was the daughter of the deceased while the petitioner is her step-brother. She testified that the beneficiaries as listed by the petitioner has excluded her and her 17 other sisters. She thereafter reiterated the statements by the objector. On cross-examination, she stated that female children should get a share of the estate.

10. OB.PW5 Selina Nafula Walekhwa testified that she was the daughter of the deceased from the 1st house while the petitioner was her step-brother. She adopted her statement dated 10/3/2023 and added in cross examination that she and her sisters were entitled to a share of their fathers’ estate. She maintained that the Chwele plot was not sold to the petitioner as alleged as she did not sign any agreement. On cross-examination, she stated that the deceased did not establish boundaries and did not distribute his properties. She added that female children should be given their shares.

11. OB.PW6 Jane Naliaka Kibeu testified that she was the daughter of the deceased from the 1st house while the petitioner was her step-brother from the 3rd house. She adopted her statement dated 10/3/2023 and added that the land in Chwele had not been sold. In cross examination, she added she and her sisters her were entitled to a share of their fathers’ estate.

12. OB.PW6 Josca Nakitanga Wapukha testified that she was also a daughter of the deceased while the petitioner was her step-brother. She adopted her statement dated 10/3/2023 and added that prior to his death, the deceased had not distributed the estate. In cross examination. she testified that she and her sisters were entitled to a share of their father’s estate.

13. Counsel for the objector filed submissions dated 24th July,2023 and urged the Honourable court to find that the deceased did not distribute his estate as alleged by the petitioner. He contended that the petitioner deliberately left out the daughters of the deceased denying them a stake in their fathers’ estate in order to reserve more to himself. He urged the court to consider his proposed mode of distribution which he argues is inclusive.

Petitioner’s case and submissions 14. PET.PW1 Titus Biketi Wapukha adopted his statement dated 10/3/2023 as his evidence and produced documents filed on even date listing from Exhibit No.1-7 in support of his case. In cross examination, he confirms having not listed his sisters as beneficiaries. He further confirmed the acreage of Bokoli/ Mukuyuni to be 16 acres. It was further his evidence that in his list of distribution, he had not indicated the specific shares to be allocated to the beneficiaries. The witness confirmed that the deceased had eight (8) wives. It was his testimony that one Situma Wilson was a purchaser and not a son to the deceased. He testified that one Johnson Barasa Wapukha as a son of the deceased was entitled to over three (3) acres of the estate and that the land in Chwele (plot 20) had been sold to him by the beneficiaries. It was his testimony that in the sale agreement for the land in Chwele,his brother Paul Nyukuri Wapukha who is indicated as a signatory was deceased at the time of the agreement but Moses Biketi Wapukha signed against his name. It was his testimony that he had completed making payments for the said land and that although Joseph Sikolia was not included in the transaction, his brother collected money on his behalf. He confirmed that his sisters were neither part of the transaction nor did they receive any money. It was his evidence that Bokoli/Mukuyuni /125 was given to the youngest son of the youngest wife in the “lufu” meeting. The witness testified that he did not have any material in proof that the deceased had shared out his estate prior to his demise but added that the sub-division was done orally. He confirmed that the Chwele plot was constructed by the deceased and that any rents therefrom should be shared. He also stated that none of his sisters have been catered for and that all the parcels of land are still registered in the name of the deceased.

15. PET.PW2 David Wanyonyi Mandu adopted his statement and stated that his father Richard Mandu Waphuka was a son to the deceased. It was his testimony that the deceased had allocated a share to his late father who thereafter obtained title to his portion of land. He confirmed that Peter Wapukha who is included as a signatory for the sale of Chwele Plot 20 was already deceased at the time of the alleged sale. In re-examination he stated that he was present when the deceased allocated land to his children and that he was also present when the money in the sale of Plot 20 in Chwele was exchanged.

16. PET. PW3 Moses Makhumi Waphuka adopted his witness statement as his evidence. In cross examination, he stated that he resided in Parcel No. 477 which is still registered in the name of the deceased. He stated that the signature on the witness statement is not his as it was made by the petitioner.

17. PET.PW4 Anna Nanjala Matayo Waphuka stated that she was the youngest wife of the deceased and that the petitioner and objector were her step-sons. She adopted her witness statement as her evidence in chief. In cross examination, she confirmed that Peter Wapukha who was her son is included as a signatory for the sale of Chwele Plot 20 but was already deceased at the time of the alleged sale. The witness testified that she was aware of the sale of Chwele plot.20 although she did not participate. It was her testimony that the land in Kewa was sub-divided by the deceased prior to his death.

18. PET.PW5 William Murekere Wapukha testified that he was the son of the deceased, from the 5th house and that the petitioner and objector were his step-brothers. He adopted his witness statement. In cross examination, he stated that the children sold Plot 20 Chwele to the petitioner. He testified that he resides on Parcel 477 and that he witnessed the deceased distribute parcels 477,297 and Plot 20 Chwele which was given to the petitioner. The witness testified that he did not know the beneficiaries of Bokoli/Mukuyuni/ 125. He also stated that at the time the issue of female children owning land did not arise.

19. In his submissions, the petitioner insisted that the deceased had distributed his estate and that the proposal by the objector is an afterthought and urged the Honourable Court to find that his proposed mode of distribution was modest, equitable and fair.

Analysis and determination 20. I have considered the entire evidence and the submissions of the parties including the authorities cited. I find the following to be the issues for determination.1)Whether the deceased established his wishes on how his parcels of land were to be subdivided.2)Which mode of distribution is fair?

21. As regards the first issue, it is noted that the petitioner’s case is built on the allegation that the deceased prior to his death distributed the estate in the mode as proposed by the petitioner. I have considered the evidence by both parties, I find that even thought the petitioner alleges that the deceased expressed his wishes on how the estate would be subdivided, he has not satisfactorily demonstrated how the same was done and under what circumstances given that he argues that the same was done orally. The deceased is said to have died in the year 1986 and that the said wishes made orally are said to have been pronounced in the year 1981.

22. It is my considered view that the alleged oral will does not meet the requirements of an oral will as have envisaged in Section 9 of the Law of Succession Act, Cap 160 Laws of Kenya which requires that an oral will ought to be made three months prior to the death of the deceased. Further, it has not been demonstrated that the deceased was a member of the armed forces which would exempt the said oral will from the abovementioned requirement.

23. In the case of Estate of Elizabeth Wanjiku Munge (deceased) [2015] eKLR the court held that the date of making an oral will is critical. Further, that the life of an oral will is only three months, unless it is made by a mariner.

24. In the circumstances, I find that the deceased did not establish his wishes on distribution of his estate during his life time as alleged by the petitioner. The answer to the first issue is in the negative.

25. As regards the second issue, Plot 20 Chwele which the petitioner claims to have purchased from the beneficiaries of the estate, i note that not the same was not inclusive thus discriminatory to the [daughters and widows of the estate. Further, the signatory beneficiaries did not have the capacity to transact as the estate had not been administered. I am of the view that the purported sale amounted to intermeddling.

26. Section 45 of the Laws of Succession Act prohibits dealing with properties belonging to a deceased person before obtaining grant. It states: -“(1)Except so far as expressly authorized by this Act, or by any other written law or by a grant of representation under this Act, no person shall, for any purpose take possession or dispose of, or otherwise intermeddle with any free property of a deceased person.”

27. In Gladys Nkirote M’itunga v Julius Majau M’itunga[2016] eKLR the court stated that;Whereas the law of succession does not define what intermeddling with the property of the deceased is, there is ample judicial decisions on acts which may amount to intermeddling. For instances, in the case of Benson Mutuma Muriungi v C.E.O. Kenya Police Sacco & Another [2016] eKLR the court observed that:“Whereas there is no specific definition provided by the Act for the term intermeddling, it refers to any act or acts which are done by a person in relation to the free property of the deceased without the authority of any law or grant of representation to do so. The category of the offensive acts is not heretically closed but would certainly include taking possession, or occupation of, disposing of, exchanging, receiving, paying out, distributing, donating, charging or mortgaging, leasing out, interfering with lawful liens or charge or mortgage of the free property of the deceased in contravention of the Law of Succession Act. I should add that any act or acts which will dissipate or diminish or put at risk the free property of the deceased are also acts of intermeddling in law. I reckon that intermeddling with the free property of the deceased is a very serious criminal charge for which the person intermeddling may be convicted and sentenced to imprisonment or fine or both under section 45 of the Law of Succession Act. That is why the law has taken a very firm stance on intermeddling and has clothed the court with wide powers to deal with cases of intermeddling and may issue any appropriate order(s) of protection of the estate against any person.”

28. I therefore find that the alleged sale to the petitioner was illegal and irregular and therefore void ab initio. The plot shall revert back to the family of Matayo Waphuka as was before. The remainder thereof if any shall be sold and the proceeds shared amongst the beneficiaries.

29. As for the rest of the estate, it emerges from the evidence that the petitioner in his proposed mode of distribution has not included the daughters of the deceased as well as his widows.Justice Musyoka In re Estate of Francis Andachila Luta (Deceased) (Succession Cause 875 of 2012) [2022] KEHC 16900 (KLR) (23 December 2022) held that:-Section 38 of the Law of Succession Act provides for equal distribution of the estate amongst the children. The language of section 38 is gender neutral. It does not classify children into male and female, nor sons and daughters, nor men and women. There is no discrimination nor differentiation nor classification nor categorization along gender lines. That would mean that sons and daughters of a dead person are entitled on equal basis to a share in the estate of their dead parent.

30. As the petitioner has left out the female children of the deceased, then I find the same is discriminatory and should be rejected. It is instructive that none of the female children of the deceased have renounced their rights to a share in the estate. It is on this basis that I find the petitioner’s proposed mode of distribution unfavorable and I proceed to reject the same.

31. The objector on the other hand has made a proposal that in my view includes the daughters of the deceased but leaves out his 6 widows who are dependents under Section 29 Law of Succession Act. The objector’s proposed mote of distribution places the size of all that parcel of land known as Bokoli/Mukuyuni/297 at 60. 0Acres while a search attached to the Petition for letters of administration indicates the approximate area to be 52. 0Acres.It is also noted from the evidence that out of this 52. 0 Acres part of it i.e. 4. 0Acres is a swampy area. The objector’s mode of distribution is therefore misleading and is not helpful. I reject the same.

32. Having found that the two proposed modes of distribution are not favourable, the court must then resort to the previous mode of distribution that had been proposed by the previous administrator Jason Waphuka who had had various consultative meetings with a big percentage of the beneficiaries and various deliberations were made as a result of those meetings with regard to sharing of the deceased’s estate. It is noted from the proposed mode of distribution filed by the said administrator that all stakeholders had been allocated portions of the estate in equal share. The daughters and the widows had been allocated commercial plots which in my view are lucrative and equally compare to the shares issued to the sons. Therefore, the estate of the deceased will be distributed in accordance with the proposed mode of distribution by the initial administrator as attached in his replying affidavit dated 31st January,2018 in the minutes marked as Exhibit JM2. Iam convinced that the said proposed mode of distribution is quite reasonable and fair in the circumstances. In any event, the beneficiaries are expected to adopt the principle that life is about give and take. The plot number 23 at Chwele market should be sold and the proceeds shall be sold and the proceeds shared equally between the beneficiaries.

33. In view of the foregoing observations, the proposed mode of distribution of the estate of the deceased by the petitioner and objector are rejected. The mode of distribution by the initial administrator Jason Makhumi Waphuka is hereby accepted as the most suitable distribution of the estate. Consequently, the protests are hereby rejected and that the grant issued on the 17/5/2022 is hereby confirmed. The estate of the deceased shall be distributed as follow:Bikoli/mukuyuni/297(52 Acres)

No. Name Share (Acre) Relationship

1. Jason Makhumi Waphuka 3. 5 Son

2. James Makhumi Waphuka 3. 5 Son

3. Eliud Matayo Waphuka 3. 5 Son

4. Joseph Sikolia Waphuka 3. 5 Son

5. Alfred Sinino Waphuka 3. 5 Son

6. Moses Biketi Waphuka 3. 5 Son

7. Peter Wepukhulu Waphuka 3. 5 Son

8. Paul Nyukuri Waphuka 3. 5 Son

9. John Sikolia Waphuka 3. 5 Son

10. Nikola Sikolia Waphuka 3. 5 Son

11. John Saenyi Waphuka 3. 5 Son

12. Moses Makhumi Waphuka 3. 5 Son

13. Zedekiah Barasa Matayo 3. 5 Son

14. Nanyama Waphuka 0. 025 Daughter

15. Rhoda Nambuye 0. 025 Daughter

16. Reba Waphuka 0. 025 Daughter

17. Concepta Nang’uda Waphuka 0. 025 Daughter

18. Agnes Nakitanga Waphuka 0. 025 Daughter

19. Sarah Lusike Waphuka 0. 025 Daughter

20. Catherine Mumia 0. 025 Daughter

21. Selina Waphuka 0. 025 Daughter

22. Jedida Naliaka 0. 025 Daughter

23. Joan Khaoma 0. 025 Daughter

24. Mary Nafula 0. 025 Daughter

25. Bilha Waphuka 0. 025 Daughter

26. Tamara Waphuka 0. 025 Daughter

27. Eunice Nanjala Waphuka 0. 025 Daughter

28. Anna Waphuka 0. 025 Daughter

29. Nakitanga 0. 025 Daughter

30. Phoebe Waphuka 0. 025 Daughter

31. Alice Waphuka 0. 025 Daughter

32. Lumbasi Waphuka 0. 025 Daughter

33. Sara Waphuka 0. 025 Daughter

34. Dorcas Waphuka 0. 025 Daughter

35. Susan Waphuka 0. 025 Wife

36. Rasoah Waphuka 0. 025 Wife

37. Jones Waphuka 0. 025 Wife

38. Rageli Waphuka 0. 025 Wife

39. Robai Waphuka 0. 025 Wife

40. Anna Waphuka 0. 025 Wife

2. 5Acres reserved to settle cost of succession 4. 0Acres Swampy Land

Bokoli/mukuyuni/447 (16 Acres)

41. William Murekere Waphuka 4. 0 Son

42. Ibrahim Wachilonga Waphuka 4. 0 Son

43. Titus Biketi Waphuka 4. 0 Son

44. Meshack Wanyonyi Waphuka 4. 0 Son

Bokoli/Makuyuni/125 (3 Acres)

45. Joseph Makhumi Waphuka 3. 0

34. Plot number 23 at Chwele market be sold and the proceeds shared equally between the beneficiaries.

35. As parties are members of one family, I order each party to bear their own costs.Orders accordingly.

DATED AND DELIVERED AT BUNGOMA THIS 27TH DAY OF OCTOBER 2023. D. KemeiJudgeIn the presence ofTitus Wapukhu PetitionerOnyando Wamalwa Simiyu for ObjectorKizito Court Assistant