[2019] KEHC 4661 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT KISII

SUCCESSION CAUSE NO. 501 OF 2009

IN THE MATTER OF THE ESTATE OF NICHOLAS MAISIBA (DECEASED)

CHARLES MOKAYA OTWORI.........................PETITIONER

VERSUS

WILKISTER MORAA OTWORI

JOHN KEBASO OTWORI

GRACE MORAA OTWORI

GEORGE MORARA OTWORI

GRACE KERUBO OTWORI

RISPER KWAMBOKA

OTUORI OMORI ERICK....................................OBJECTORS

AND

RONALD ONYANGO OBONYO........INTERESTED PARTY

RULING

1. Nicholas Otwori Maisiba (“the deceased”) died intestate on 29th December 2003. The deceased had two parcels of land namely West Kitutu/Bomatara/ 1824 and West Kitutu/ Daraja Mbili/ 1208 which are the subject of this cause. It is not contested that the deceased was a polygamous man. His first wife Marisera Nyatichi Otwori and his second wife Wilkista Moraa Otworiare now both deceased. Charles Mokaya Otwori applied for letters of administration in the deceased’s estate which was opposed by Wilkister Moraa Otwori. She contended that he had not sought her consent to file the application and had left out some of the deceased’s beneficiaries. Ronald Onyonka Obonyo also filed an application to be enjoined as an interested party on the grounds that he had purchased land parcelWest Kitutu/Bomatara / 1824from two of the deceased’s sons Charles Mokaya Otwori and Reuben Manyange Otwori.

2. The letters of administration in the estate of the deceased were issued to Charles Mokaya Otwori, Wilkister Moraa Otworiand Ronald Onyonka Obonyoon 26th July 2011. Later on, Charles Mokaya and Wilkister Moraa passed away and a fresh grant was issued to Reuben Otwori and Ronald Onyonka Obonyo on 14th December, 2018.

3. What is now pending the determination of this court is the distribution of the deceased’s estate. The interested party, Ronald Onyonka Obonyo filed summons for confirmation of grant on 15th April 2019. He and his co-administrator Reuben Manyange Otwori swore affidavits on 15th April 2019 in support of the application. Ronald proposes that land parcel no. West Kitutu/Bomatara / 1824 be registered in his name and land parcel no.West Kitutu / Daraja Mbili / 1208 be subdivided among the deceased’s beneficiaries as follows;

HOUSE A

a. Morine Mokaya – 0. 0475 Ha.

b. Grace Moraa Otwori – 0. 0475 Ha.

HOUSE B

c. Reuben Manyange Otwori – 0. 02375 Ha.

d. George Morara Otwori – 0. 02375 Ha.

e. John Kebaso Otwori – 0. 02375 Ha.

f. Erick Omori Otwori – 0. 02375 Ha.

4. John Kebaso Otwori opposes that mode of distribution. He wants the two parcels of land shared equally between the two houses and the beneficiaries in each house sub-divide their share equally within their respective houses. He lists the deceased’s beneficiaries as follows;

1ST HOUSE

a. Marizera Nyatichi Otwori (deceased) widow

b. Grace Moraa Otwori

c. William Nyangaresi Otwori (deceased)

d. Charles Mokaya Otwori (deceased)

e. Mourine Mokaya Otwori

2ND HOUSE

f. Wilkister Moraa Otwori (deceased) widow

g. Reuben Manyange Otwori

h. George Morara Otwori

i. John Kebaso Otwori

j. Erick Omori Otwori

k. Grace Kerubo Otwori

l. Risper Kwamboka Otwori

5. In order to distribute the deceased’s estate the first task is to establish the deceased’s assets and his beneficiaries. The only asset listed by the petitioner in form P & A 5 is land parcel no. West Kitutu / Bomatara / 1824 measuring 0. 51 Ha. The interested party in his list of documents filed on 12th April 2012 availed a copy of the title which indicates that the land is registered in the deceased’s name.

6. No documentary proof has been furnished to prove that land parcel no. West Kitutu/ Daraja Mbili / 1208 is registered in the deceased’s name. However, all parties agree that the parcel of land forms part of the estate.

7. As for the deceased’s beneficiaries, it is agreed that he was survived by the following children;

1ST HOUSE

a. Grace Moraa Otwori

b. Mourine Mokaya Otwori

2ND HOUSE

c. Reuben Manyange Otwori

d. George Morara Otwori

e. John Kebaso Otwori

f. Erick Omori Otwori

g. Grace Kerubo Otwori

h. Risper Kwamboka Otwori

8. Since the deceased was a polygamous man and left no surviving spouse, his estate was subject to division under section 40 and section 38 of the Law of Succession Act (“the Act”). Those provisions provide as follows;

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.

38. Where an intestate has left a surviving child or children but no spouse, the net intestate estate shall, subject to the provisions of sections 41 and 42, devolve upon the surviving child, if there be only one, or be equally divided among the surviving children.

9. The interested party avers that he purchased land parcel No. West Kitutu/Bomatara / 1824 from Charles Mokaya Otwori (deceased) and Reuben Manyange Otwori. He states that the deceased had gifted his two sons the land which they subsequently sold to him on 19th November 2007. I concur with the courtin In re Estate of The Late Gedion Manthi Nzioka (Deceased)[2015] eKLRwhich held as follows;

For gifts inter vivos, the requirements of law are that the said gift may be granted by deed, an instrument in writing or by delivery, by way of a declaration of trust by the donor, or by way of resulting trusts or the presumption of. Gifts of land must be by way of registered transfer, or if the land is not registered it must be in writing or by a declaration of trust in writing. Gifts inter vivos must be complete for the same to be valid. In this regard it is not necessary for the donee to give express acceptance, and acceptance of a gift is presumed until or unless dissent or disclaimer is signified by the donee. See in this regard Halsburys Laws of England 4thEdition Volume 20(1) at paragraph 32 to 51.

10. The interested party herein has not adduced any proof that the deceased gave Charles Mokaya Otwori (deceased) of the first house and Reuben Manyange Otwori of the 2nd house land parcel No. West Kitutu/Bomatara / 1824 and I therefore find that no such gift was made to them.

11. That being said, I take cognizance of the fact that both houses participated in the sale and the interested party has been in possession of that parcel of land since he purchased it with no complaint from the beneficiaries of the deceased’s estate. For the foregoing reasons, I allow the summons for confirmation of the grant and confirm the grant as hereunder;

SCHEDULE OF DISTRIBUTION

SHARE OF HEIRS DESCRIPTION OF PROPERTY

1. Grace Moraa Otwori

2. Mourine Mokaya Otwori

3. Reuben Manyange Otwori

4. George Morara Otwori

5. John Kebaso Otwori

6. Erick Omori Otwori

7. Grace Kerubo Otwori

8. Risper Kwamboka Otwori West Kitutu/ Daraja Mbili / 1208 in equal shares

Ronald Onyonka Obonyo West Kitutu/Bomatara / 1824 absolutely

12. Each party shall be their own costs.

Dated, signed and delivered at Kisii this 9thday of August 2019.

R.E.OUGO

JUDGE

Mrs. Kebungo h/b Mr. Masese For the Petitioner

Mr. Sagwe For the Objectors

Mr. Masese For the Interested Party

Rael Court clerk