[2022] KEHC 14857 (KLR)

In re Estate of Musee Shikomari Joseph (Deceased) (Succession Cause 412 of 2001) [2022] KEHC 14857 (KLR) (4 November 2022) (Ruling)

Neutral citation: [2022] KEHC 14857 (KLR)

Republic of Kenya

In the High Court at Kakamega

Succession Cause 412 of 2001

WM Musyoka, J

November 4, 2022

IN THE MATTER OF THE ESTATE OF MUSEE SHIKOMARI JOSEPH (DECEASED)

Ruling

1. On 28th January 2022, I delivered a ruling, where I declined to revoke the grant made on 27th November 2001, because the matter is old, and I opted to appoint the applicant, in the revocation application dated 12th April 2014, one of the administrators of the estate, and directed them to file for confirmation of their grant.

2. On the same date when I delivered the said ruling, on 28th January 2022, I fixed the matter for mention for directions on 18th May 2022, on disposal of a pending summons for confirmation of grant, dated 23rd January 2004. On 18th May 2022, the parties did not seek direction on disposal of the application dated 23rd January 2004, for they had already filed written submission on it, and they asked me to give them a date for ruling, which I did.

3. In my ruling of 28th January 2022, on the summons for revocation, I raised issues surrounding the relationship between Matayo Lihavi Mushuhani and Resbar Lihavi Igoa. One claimed to be a stepson of the deceased, and the other a daughter of the deceased. The alleged stepson claimed that the alleged daughter of the deceased was in fact a sister of the deceased, while the alleged daughter claimed that the alleged stepson was not related to the deceased in any way. In my ruling of 28th January 2022, I stated that those issues could not be resolved by way of affidavit evidence.

4. This is how I addressed the issue at paragraphs 6, 7 and 8 of the said ruling:“6. The principal dispute in the application is on how the two combatants were related to the deceased. When she mounted her application, the applicant claimed to be the only child of the deceased, but changed tune when the administrator said she was in fact a sister of the deceased. The administrator, on his part, claims to have had bought the property from the deceased, and also to be a stepson of the deceased. I have seen the proceedings before the Shinyalu Land Disputes Tribunal, and I am persuaded that the applicant was sister of the deceased.7. What I am not clear about is the nature of the relationship between the deceased and the administrator. When he sought representation to the estate he projected himself as a stepson of the deceased, yet in his response to the objection, he pushed that to the background, and asserted that his claim to the estate was founded on the fact that he had bought land from the deceased. The question then is whether he was a buyer or a stepson or both. I find his averments in his affidavit curious. He says that the deceased did not have children, but he was a stepson. I would assume that a stepson is a child for succession purposes, and if he was indeed a stepson, then he should have considered himself to be a child of the deceased. Curiously he does not disclose how he was a stepson of the deceased. He does not disclose whether his mother was married to the deceased, for I suppose that that would be how he would become a stepson. The way he refers to the widow of the deceased should also raise eyebrows. He does not describe her as his stepmother, but just as a widow, who was old and sickly, and who initiated the succession cause to facilitate the sale transaction. Then there is the letter from the Chief which identifies him as a stepson of the late widow of the deceased.8. The nature of the issues in controversy, that is whether the administrator was a child of the deceased and also a buyer of the land in question, both of which are contested, are best dealt with in an oral hearing, where the witnesses are subjected to cross-examination, and where they present witnesses who breathe life to the documents relied upon, such as sale agreements and Chief’s letters. In my view, it was foolhardy for the parties, and the administrator especially, to go the way of written submissions in a case such as this, where oral evidence would have been the best.”

5. That issue has not been resolved. It cannot be resolved until a full-fledged trial is conducted, by taking oral evidence from witnesses, who are subjected to cross examination. I cannot dispose of the summons, dated 23rd January 2004, based only on affidavit evidence. The parties ought to have taken heed of my sentiments in the ruling of 28th January 2022.

6. Consequently, I shall not proceed to distribute the estate on the basis of the application dated 23rd January 2004, before oral evidence is taken on the aspects of the confirmation application that I have raised above, and in particular issues around ascertaining the persons beneficially entitled to the estate of the deceased, as required 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. In short, evidence on the nature of the relationship between the deceased and the disputants.

7. The matter shall be allocated a date for mention, for directions, on the disposal of the application dated 23rd January 2004.

DELIVERED, DATED AND SIGNED IN OPEN COURT AT KAKAMEGA THIS 4TH DAY OF NOVEMBER, 2022W. MUSYOKAJUDGEMr. Erick Zalo, court assistantMs. Ikhumba, instructed by PK Kamau & Company, Advocates for Respar Lihavi Igoa.Mr. Getanda, instructed by Onsando Getanda & Company, Advocates, for Matayo Luteya Mushukani.