[2011] KEHC 3720 (KLR)

REPUBLIC OF KENYA

IN THE HGH COURT OF KENYA

AT KAKAMEGA

SUCCESSION CAUSE NO.296 OF 2005

IN THE MATTER OF THE ESTATE OF MUHONJA MATUKU ::::::::::: (DECEASED)

A N D

IN THE MATTER OF JACKSON MUHONJERA MATUKU :::::::::::::::: PETITIONER

A N D

IN THE MATTER OF ANNA KHAVIRANGA MUHONJIA

JOSHUA MUHONJIA ::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: APPLICANTS

RULING ON DISTRIBUTION

1. The deceased herein, Muhonjia Matuku died on 25. 7.1983 and two succession causes were instituted in respect of his estate viz H.C. Succ. Cause 296 of 2005 (Kakamega)andH.C. Succ. 289 of 2008 (Kakamega). In the former cause, Jason Muhonjera Matuku was the Petitioner and Anna Kaviranga Muhonjia was the Petitioner in the latter cause.

2. Although parties had initially agreed to proceed and hear a protest dated 29. 1.2010 by way of oral evidence, on 13. 10. 2010 a consent was recorded that “a Ruling on Distribution be made on the basis of the Affidavits on record.”In that context, it is important to state what the dispute relates to.

3. I note that the deceased left two parcels of land i.e.

i)L.R. No. S. Kabra/Bushu/365

ii)L.R. No. S. Kabras/Bushu/380

4. In an Affidavit sworn on an unclear date and filed in court in March 2006 Jackson Muhonjera made an unclear proposal as to distribution. I say so because he merely proposed that he should inherit 6 acres; Joshua Chenjeni Muhonjia should inherit 8 acres; Elijah Njuguna Muhonjia should inherit 4 ½ acres; and Laban Muhonjia should inherit 4 acres. It is unclear from what parcel of land the distribution should be made on that basis and the Affidavit is wholly unhelpful to this court.

5. In an Affidavit sworn on 4. 11. 2008, Joshua Muhonjia also merely stated that certain persons were entitled to the estate but he did not particularize those persons and their alleged entitlement and to which parcel of land that entitlement should be pegged.

6. Annah Khaviranga Muhonjia swore an Affidavit on 4. 11. 2008 and repeated the same assertions as those made by Joshua Muhonjia in his Affidavit aforesaid.

7. Having so said, Joshua Muhonjiah in his Affidavit sworn on 28. 9.2009 became more focused and deponed as follows, at paragraphs 2, 7, and 8 stated as follows;

“1. ……………

2. The deceased was survived by the following:-

Names Addresses Ages

i)Anna Khaviranga Muhonjia P.O. Box 506 Kakamega Widow

ii)Sabeth MuhonjiaP.O. Box 506 Kakamega Widow (deceased)

iii)Selpha MuhonjiaP.O. Box 506 Kakamega Widow (deceased)

iv)John MuhonjiaP.O. Box 379 Kakamega Son – Adult

v)Joshua MuhonjiaP.O. Box 506 Kakamega Son – Adult

vi)Elijaa NjugunaP.O. Box 506 Kakamega Son – Adult

vii)Laban ShiunduP.O. Box 506 Kakamega Son – Adult

viii)Jackson Muhonjers MatukuP.O. Box 506 Kakamega Son – Adult

ix)Frida TandeP.O. Box 506 Kakamega Daughter in-law

x)Emily TandeP.O. Box 506 Kakamega Daughter in-law

xi)Wakhukha TandeP.O. Box 506 Kakamega Grandson

xii)Frida MuhonjiaP.O. Box 506 Kakamega Grand Daughter

xiii)Patrick MatukuP.O. Box 506 Kakamega Grandson

xiv)Diana MuhonjiaP.O. Box 506 Kakamega Daughter

xv)Rebecca Lichei MuhonjiaP.O. Box 506 Kakamega Daughter

xvi)Mukasia MuhonjiaP.O. Box 506 Kakamega Daughter (unmarried)

xvii)Osale AmwayiP.O. Box 506 Kakamega Grandchild

xviii)Bakhoya MuhonjiaP.O. Box 506 Kakamega Daughter

xix)Loice MuhonjiaP.O. Box 506 Kakamega Daughter

xx)Mmoji MuhonjiaP.O. Box 506 Kakamega Daughter

xxi)Bilha MuhonjiaP.O. Box 506 Kakamega Daughter

xxii)Nerima MuhonjiaP.O. Box 506 Kakamega Daughter

xxiii)Rosemary MuhonjiaP.O. Box 506 Kakamega Daughter

3. …………

4. ………..

5. ………...

6. ………..

7. The Estate of the deceased comprises of:-

(a) Land parcel No. South Kabras/Bushu/380

(b) Land parcel No. South Kabras/Bushu/365

8. That the Identification and shares of all persons beneficially entitled to the saidestate have been ascertained and determined as follows;

1. L.R. NO. SOUTH KABRAS/BUSHU/380 (8. 8. HA equivalent to 21. 7348 ACRES) – To be taken by the house of ANNA KHAVIRANGA whose children to take are:-

(a)TAND MUHONJIA died and his widow viz:- FRIDA TANDE, EMILY TANDE, jointly i.e. 4. 0 HA equality 9. 884 ACRES

(b)JOHN MUHONJIA – To be given 2. 4 HA equals 5. 9340 ACRES

(c)MATUKU MUHONJIA – (Deceased) and his share be taken by PATRICK MATUKU who is his only son – To be given 5 2. 2. ACRES

2. L.R. NO. SOUTH KABRAS/BUSHU/365 (9. 0 HA which translates into acres as follows 2. 471 x 9. 0 = 22. 239 ACRES) – To be taken by the house of SABETH MUHONJIA (deceased) and SELPHA MUHONJIA (deceased) to be Sub-divided equally among the houses which translated to 1. 1 acres for each House. Children to take are as follows:-

(a)SABETH MUHONJIA’S (deceased) children

(i)JACKSON MUHONJERA MATUKU – 3. 7 ACRES

(ii)ELIJAH NJUGUNA- 3. 7 ACRES

(iii)LABAN SHIUNDU- 3. 7 ACRES

(b)SELPHA MUHONJIA’S (deceased) house has only one son – JOSHUA MUHONJIA – 11. 1 acres”

8. Jackson Muhonjera in his Affidavit sworn on 29. 1.2010 deponed as follows at paragraphs 3, 4, 5, 6, and 7”

“1. ……

2. ……..

3. THAT I do not agree with the mode of distribution as proposed by my Co-administrator

4. THAT when our father died he had already distributed the parcels of land to various children and we have all developed our shares and have and have lived there for years and it would be improper for JOSHUA MUHONJERA to re-schedule the distribution mode.

5. THAT the deceased left the following property

·LAND PARCEL NO. KABRAS/BUSHU/380 – 20 ACRES

·LAND PARCEL NO. KABRAS/BUSHU/365 – 22 ½ ACRES

6. THAT I propose that the said property be distributed as follows:-

·LAND PARCEL NO. KABRAS/BUSHU/380

(a)FRIDA TANDE MUHONJIA- 6 ACRES

(b)JOHN MUHONJIA - 6 ACRES

(c)MUHONJIA MATUKU6 ACRES

(d)JOSHUA CHENJERI- 2 ACRES

·LAND PARCEL NO. KABRAS/BUSHU/365

(e)JACKSON MUHONJERA6 ACRES

(f)ELIJAH LABAN NJUGUNA MUHONJIA - 6 ACRES

(g)LABAN MUHONJIA- 6 ACRES

(h)JOSHUA CHENJERI MUHONJIA- 4 ½ ACRES to add on 2 ACRES above

7. THAT our sisters are all married and have already inherited from their husbands’ and are comfortable hence should not be forced to inherit our father’s estate.

9. With the above two proposals in mind, I should state that I have read the record and I note that the deceased was a polygamous man and had three wives who are all deceased. They were;

i)1st wife – Annah Muhonjia

ii)2nd wife – Sabeti Muhonjia

iii)3rd wife – Selipha Muhonjia

His sons were/are

i)John Muhonjia

ii)Jeremiah Matuku (deceased)

iii)Philip Muhonjia

iv)Elijah Muhonjia

v)Shiundu Muhonjia

vi)Joshua Muhonjia

vii)Tande Muhonjia (deceased)

The daughters and their marital status were/are;

viii)Dinah Muhonjia- married

ix)Lichey Muhonjia- married

x)Mukasia Muhonjia- unmarried

xi)Bakhoya Muhonjia- married

xii)Loice Muhonjia- married

xiii)Mumofi Muhonjia- married

xiv)Beliah Muhonjia- married

xv)Nechesa Muhonjia- married

xvi)Rosemary Muhonjia- married

10. Further, I have seen a letter by the Ag. Chief, Kabras South Location dated 9. 6.2008. In that letter he made reference to a case before the Kabras Land Dispute’s Tribunal and whose decision was adopted by the Chief Magistrate’s Court in Kakamega on 20. 1.2006. He stated that the decision was that land parcel no. 365 would be given to the 2nd and 3rd houses and the 1st house would be given 11. 25 acres but it is unclear from which of the two parcels of land the said land would be excised from. I note that land parcel no.365 is 9 hectares while land parcel no. 380 is 8. 8. hectares.

11. With the above background, what is the best module of distribution? Section 40 of the Law of Succession Act provides as follows;

“S.40 (1)Where an intestate has married more than once under any system of law permitting polygamy, his personal and household effects and the residue of the net intestate estate shall, in the first instance, be divided among the houses according to the number of children in each house, but also adding any wife surviving him as an additional unit to the number of children.

(2)The distribution of the personal and household effects and the residue of the net intestate estate within each house shall then be in accordance with the rules set out in sections 35 to 38. ”…….”

12. Further in Rono vs Rono [2004] e KLR it was held that in distributing land pursuant to section 40 of the Act, the court ought to be reasonable and ensure that the module of distribution is practical (per Omolo J.A.). I agree and in the instant case, I have the following pointers to the most reasonable and practical module;

a) the number of houses

b) the number of children of the deceased

c) the present occupation by each house

d) the number of unmarried daughters, grandchildren andother dependants of the deceased.

13. My opinion is now as follows;

Firstly, I do not have the proceedings of the Kabras Land Dispute’s Tribunal and I would have wished to have a look at it before finally distributing the estate. I say so, because perhaps the Tribunal actually determined the issue and there may not have been an appeal against the said determination. It would be wrong for this court to proceed as if that was a non-issue.

Secondly, and before I make a final order as to distribution, I would like the parties to clarify by way of Affidavits where the children of Jeremiah Matuku (deceased) and Tande Muhonjia (deceased) are presently living.

Once the above information is properly placed before court, then I will quickly make final orders as to distribution, with the above background in mind.

Let parties comply with the above directions within 30 days of this order.

14. Orders accordingly.

Delivered, dated and signed at Kakamega this 22nd day of February, 2011

ISAAC LENAOLA

J U D G E