[2022] KEHC 11427 (KLR)

In re Estate of Misheni Inzera (Deceased) (Succession Cause 848 of 2010) [2022] KEHC 11427 (KLR) (8 July 2022) (Judgment)

Neutral citation: [2022] KEHC 11427 (KLR)

Republic of Kenya

In the High Court at Kakamega

Succession Cause 848 of 2010

WM Musyoka, J

July 8, 2022

IN THE MATTER OF THE ESTATE OF MISHENI INZERA (DECEASED)

Judgment

1. What I am called upon to determine is a summons for confirmation of grant. It is datedOctober 2, 2012. It is brought at the instance of John Misheni and Isaac Misheni Indwale, the administrators of the estate of the deceased. They identify the survivors of the deceased as the four sons, being John Misheni, Shitokani Misheni, Charles Makora Misheni and Juma Muyekho Misheni; and three grandchildren, being Isaac Misheni Indwale, Nyende Chebukwa and Daudi Chebukwa; and a daughter-in-law, Belidah Kharoya Mukonambi. The deceased is said to have died possessed of Kakamega/Shamberere/552. It is proposed that Kakamega/Shamberere/552 be devolved equally between all the listed survivors, save that Nyende Chebukwa and Daudi Chebukwa, take one equal share with the rest.

2. An affidavit of protest was filed herein on September 28, 2016, by Charles Makora Misheni, sworn on September 27, 2016. I shall refer to him as the protestor. He expresses opposition to the distribution proposed, on grounds that it was oppressive to some of the survivors. He avers that the deceased had married two wives, who are since dead. He names them as Nangoyi Misheni and Anna Suti Misheni. He states that the deceased had shared out his land between the two wives or households during his lifetime, and boundaries were planted separating the two households. He then went on to share out the land amongst the sons in each house, and the sons planted boundaries. He avers that the deceased also had a son outside wedlock, named as the late Jackson Indwale Misheni, who had allegedly sold his share before the death of the deceased, and he went and settled on South Kabras/Shamberere/1615, where he died and was buried. It is averred that Isaac Misheni Indwale was a son of the said Jackson Indwale Misheni, and it is averred that he should seek his share in South Kabras/Shamberere/1615. He asserts that the wishes of the deceased should be respected and adopted in order for there to be harmony within the family.

3. I usually do not recite the contents of whiteness statements, because they are not on oath, but I shall make reference to the one filed here on January 25, 2021, dated January 22, 2021, because they carry evidential material, and should have been filed as affidavits. One is by John Misheni. It indicates that the deceased had three wives, who all had children. Rebecca Nangoi is said to have had four children: the late Festo Mmboto Misheni, Charles Shitokani Misheni, the late Khasoa Misheni and John Misheni. Anna Sundi Misheni had nine childen: Khayeri Misheni, the late Keya Misheni, Ambunya Misheni, Fade Misheni, the late Chebukwa Misheni, Charles Misheni Makora, Juma Muyekho, the late Moto Misheni and Margaret Misheni. Rebecca Lubanga was said to have had two children: the late Jason Indwali Misheni and the late Queen Misheni. It is explained that before the deceased died he had allocated his eight land on the ground, and the portions were demarcated. The late Festo Mmboto Misheni had his own land, registered in his name, which he sold and moved to Kambiri, where he bought another parcel of land and settled with his family. He avers that Kakamega/Shamberere/552 should available to the remaining seven sons. Isaac Misheni Indwale avers that he is a son of Jason Indwale Misheni, a son of the deceased. He asserts that his father was not born outside wedlock, and was among the sons allocated a portion of Kakamega/Shamberere/552 by the deceased. He states that his father purchased South Kabras/Shamberere/1615. He states that Charles Misheni Makora wanted to purchase the said portion from the late Jason Indwale Misheni, but he cloud not raise the purchase price, and the same was never sold. He asserts that he was entitled to the portion that should was allocated to his father.

4. The matter came up for hearing on November 3, 2021. The protestor did not attend court, in spite of being served. I was invited to dismiss the protest, which I declined, and directed that I would take oral evidence on the summons for confirmation of grant. Two witnesses were offered, John Misheni and Isaac Misheni Indwale. They testified along the lines of the affidavits that they had filed in support of their application and their witness statements. John Misheni added that he did not have evidence to show that the late Festo Mmboto had been given land by the deceased which was registered in his name. He asserted that the deceased did not give land to any of his daughters, and that he did not transfer any land to the sons, save for the late Festo Mmboto.

5. At the close of the original hearings, the administrators filed written submissions. I have read through their written submissions, and I have noted their arguments.

6. The deceased herein died on March 18, 2003, long before the Law of Succession Act came into force on July 1, 1981. He died intestate, and therefore distribution to his estate should be strictly governed by Part V of the Law of Succession Act. The administration of the estate is subject to Part VII of the Law of Succession Act, which spells out how grants of representation are to be obtained, confirmed and the administration closed.

7. Grants of representation are obtained through a process that is set out under section 51 of the Law of Succession Act and Rule 17 of theProbate and Administration Rules. Under section 51(2) (g), where the deceased dies intestate, like in this case, the petition for representation has to disclose certain categories of survivors. The provision talks of “… the names and addresses of all the surviving spouses, children…. and of the children of any child of his or hers then deceased.” This provision is in mandatory terms. It requires disclosure of “all the children of the deceased.” All the children must be disclosed, not just a section of the children. The Law of Succession Act does not categorize the children of the deceased into male and female, married or unmarried. The Act is gender neutral. It treats all the children of the deceased equally. That is to say then that section 51(2) (g) requires disclosure of all the children of the deceased, whether male or female, whether married or unmarried.

8. For those who do not believe that the Law of Succession Act is gender neutral and provides for all the children of the deceased regardless of their gender, it may be well to state that Kenya is now under a new constitutional dispensation, ushered in by the Constitution of Kenya 2010, promulgated on August 27, 2010. Article 27 of that Constitution is against discrimination based on gender. It outlaws it, and provides that men and equal are to be treated in all spheres of life. Succession is one such sphere of life. Gone are the days when women counted for nothing. It would be discriminatory at succession for the sons of the deceased to proceed to distribute the estate of their father in 2022, in a process that does not include and involve the daughters of the deceased, by treating them as if they did not exist. That is just unconstitutional. Any process that proceeds on that premise is bound to be struck down on the basis of article 27 of the Constitution, 2010.

9. I am raising this because the process herein is geared to benefiting only the sons of the deceased, on the argument that the deceased had distributed his property before he died. In line with that argument, the administrators herein obtained a letter from the area Chief, Lunyinya Sub-Location, dated November 30, 2010, which disclosed only the sons of the deceased. That narrative was carried into the petition that was filed herein on December 1, 2010. It listed only the sons; a daughter-in-law representing a dead son; and grandsons likewise representing another dead son of the deceased. The same sons are featured in the confirmation application, dated October 2, 2012. It is in the witness statement of John Misheni dated January 22, 2021, that it merges that the deceased had daughters. At the oral hearing, John Misheni stated that the deceased had not distributed land to his daughters.

10. What emerges very clearly is that the deceased had daughters, yet the existence of those daughters was concealed from the court. They were not disclosed when the administrators sought representation, nor when they sought confirmation of their grant, contrary to what is required under sections 51(2)(g) and the proviso to section 71(2) of the Law of Succession Act and Rules 17 and 40(4) of the Probate and Administration Rules. It would mean that the proceedings herein are founded on a lie, on concealment of information, on misrepresentation, all of which are the ingredients of what is known as fraud. It is for such that grants are revoked under section 76(a) (b) and (c) of the Law of Succession Act. All the children of the deceased, must be disclosed, sons and daughters. Non-disclosure should inevitably lead to invalidation of any process undertaken on that premise.

11. Of course, parties cannot be forced to take shares in an estate if they are not minded to. Conversely, parties should not be denied their entitlement to a share in an estate. It us a right which accrues to them by law and which is not to be granted or given at the whim or discretion of anyone. What I am saying is that the law grants daughters a right to a share in their father’s estate. Their entitlement to a share is automatic, a given, and it is not dependent on their brothers feelings or the discretion of the administrators. If the daughters do not wish to take a share, let them be brought on board, and file documents showing that they do not desire to take a share. I mean a deed of renunciation, or an affidavit waive their right. Rule 41(1) requires that attend court and state their position. If not interested in a share, they will simply tell the court they do not wish to be allocated anything from the estate. What should not and never happen is that they should not be left out of the process, as if they were never born or had ceased to be children of the deceased. They must be brought on board and involved.

12. The parties hereto have variously talked about the deceased having died after he had distributed his estate. That would be what is known as inter vivos or life time distribution. Where a proper inter vivos distribution happens, there would be no need for conducting succession proceedings, for the deceased would have distributed his property amongst his children, and transferred titles to them. There would, therefore, be no estate to be administered, the deceased would die leaving no property in his name having shared it out amongst his children. the argument in a succession cause that a deceased person had shared out his land before he died is defeatist, for if he had surely distributed his property before he died, why then did the parties have to file a succession cause, why would it be necessary for the court to distribute the land, if it had already been distributed by the deceased. The very fact that the parties hereto are coming to court asking the court to distribute the land would naturally mean that the deceased did not share out his land during his life time, and that is why they are seeking court orders in a succession cause for distribution of the estate. the parties have not presented any documents to show that the deceased went to the local Land Control Board and obtained consent to subdivide his land, that the process of that subdivision began, mutations were done, transfer papers were drawn or even signed but the deceased died before he could effect the transfers. If all what happened was that the children were show portions to till or put up houses and nothing more, then there was no inter vivos distribution, and the probate court to strictly distribute the property under Part V, unless all the children of the deceased agree on a common approach to the distribution.

13. I believe that I have said enough to demonstrate that the application herein is not ripe for determination. Let the administrators do the right thing first, by bringing the children of the deceased on board, and giving them an opportunity to tell the court whether they have an interest in taking a share of the estate or not. The process has not been inclusive, and has been conducted in an unconstitutional manner so far. I shall allocate a date for mention to confirm whether there has been compliance, and for further directions. It is so ordered.

DELIVERED, DATED AND SIGNED IN OPEN COURT AT KAKAMEGA THIS 8TH DAY OF JULY 2022WM MUSYOKAJUDGEMr. Erick Zalo, Court Assistant.Ms. Eroba, instructed by Nandwa & Company, Advocates for the administrator.Mr. Charles Misheni, the protestor, in person.