[2022] KEHC 10153 (KLR)

In re Estate of Paul Maloba Mutanda (Deceased) (Succession Cause 945 of 2007) [2022] KEHC 10153 (KLR) (13 May 2022) (Ruling)

Neutral citation: [2022] KEHC 10153 (KLR)

Republic of Kenya

In the High Court at Kakamega

Succession Cause 945 of 2007

WM Musyoka, J

May 13, 2022

IN THE MATTER OF THE ESTATE OF PAUL MALOBA MUTANDA (DECEASED)

Ruling

1. What is for determination is a summons, dated 7th March 2017, which seeks confirmation of the grant herein, made to Eunice Makokha Nyangweso, John Chesiro Mutanda and Jacinta Maloba Afande, on 12th May 2016.

2. The summons is brought at the instance of Eunice Makokha Nyangweso, who I shall refer to hereafter as the applicant. She avers that the deceased had been survived by seventeen individuals, described as dependants, being Nilla Marie Amusala, Nerisa Jacquilline Michael, Eva Chantal Mutanda, Daisy Apondi Mutanda, John Chesiro Mutanda, Elizabeth Namudumu Mutanda, Charles Sanya Mutanda, Edna Apondi Maloba, Stephen Eugene Maloba Mutanda, Michael Onyango Maloba, Celestine Yvonne Maloba, Silas Maloba Mutanda, Anita Anyango Maloba, Victor Adera Maloba, Eunice Makokha Nyangweso, John Chesiro Mutanda and Jacinta Maloba Afande. The nature of the relationship between these individuals and the deceased is not indicated. The assets lined up for distribution are 50, 000 shares in Mumias Sugar Company Limited, 518 shares in Kenya Breweries, motor vehicle KAM 936M, motor vehicle KZF 605, life assurance policies, Plot No. 35 (284) Busia Municipality, North Wanga/Kholera/1523, North Wanga/Mayoni/1633, North Wanga/Khalaba/625, Butsotso/Esumeyia/2624, pension at Mumias Sugar Company Limited, 100, 000 shares in Mumias Sugar Company and shares at Sukari Sacco Society. It is proposed that North Wanga/Kholera/1523 be devolved upon Anita Anyango Maloba and Victor Adera Maloba; and the rest of the shares to be shared amongst the rest of the beneficiaries. Attached to the affidavit in support is a consent on distribution, Form 37, duly executed by one individual out of the seventeen survivors and dependants listed the application. The one who has signed is Eunice Makokha Nyangweso.

3. The applicant subsequently filed a further affidavit, sworn on 2nd March 2021, on 9th March 2021, to amend her proposal on distribution, so that North Wanga/Kholera/1523 devolved upon Anita Anyango Maloba, while North Wanga/Kholera/1668 devolved upon Victor Adera Maloba, on grounds that the matrimonial home of their mother, Mary Nasimiyu Nyangweso, stood on the two parcels of land. She has attached two certificates of official search indicating that North Wanga/Kholera/1523 and 1668 were transferred to the name of John Chesiro Mutanda on 13th July 2006.

4. The application attracted an affidavit of protest, from Jacinta Afande Maloba, sworn on 3rd March 2021. I shall refer to Jacinta Afande Maloba, hereafter, as the protestor. She avers that she was the 2nd administratrix and the surviving widows of the deceased. She protests that the mode of distribution proposed by the applicant was unfair and oppressive. She states that the same does not include North Wanga/Kholera/1668, which she describes, together with North Wanga/Kholera/1668, as the only developed and prime properties of the estate. She further states that, apart from North Wanga/Kholera/1668, the applicant had not distributed the rest of the assets. She has placed before the court a counter-proposal. She proposes that the shares held by the deceased in Kenya Breweries Limited and 37, 500 shares in Mumias Sugar Company Limited be devolved upon Kathryn Lyn Mutanda. North Wanga/Kholera/1523 and 1668 be devolved upon Stephen Eugene Maloba and Victor Adera Maloba, to be sold, and the proceeds of sale to be shared out equally between Jacinta Afande Maloba, Edna Apondi Maloba, Celestine Yvonne Maloba, Stephen Eugene Maloba Mutanda, Michael Onyango Mutanda, Silas Maloba Mutanda, Victor Adera and Anita Anyango. ¼ share of Butsotso/Esumeyia/2624 and 37, 500 shares in Mumias Sugar Company Limited to devolve upon Nilla Marie Amusala Mutanda. Kshs. 84, 400. 00 from the Sukari Sacco shares and 37, 500 shares in Mumias Sugar Company Limited to devolve upon Nerissa Jacqueline Michel Mutanda. Kshs. 84, 400. 00 from the Sukari Sacco shares, 37, 500 shares in Mumias Sugar Company Limited and ¼ share of the proceeds from the Alico Life Insurance policy to devolve upon Eva Chantal Mutanda. Kshs. 84, 400. 00 from the Sukari Sacco shares and 37, 500 shares in Mumias Sugar Company Limited and ¼ share of the proceeds from the Alico Life Insurance policy to devolve upon Daisy Apondi Mutanda. ¼ share of Butsotso/Esumeyia/2624, 37 500 shares in Mumias Sugar Company Limited, ¼ share of the proceeds from the Alico Life Insurance policy and motor vehicle KAM 936M to devolve upon John Chesiro Mutanda. ¼ share of Butsotso/Esumeyia/2624, Kshs. 84, 400. 00 from the Sukari Sacco shares, 37 500 shares in Mumias Sugar Company Limited and ¼ share of the proceeds from the Alico Life Insurance policy to devolve upon Elizabeth Namuduma Mutanda. ¼ share of Butsotso/Esumeyia/2624 and 37 500 shares in Mumias Sugar Company Limited to devolve upon Charles Sanya Mutanda. 1/3 share of North Wanga/Mayoni/1633 to devolve upon Edna Apondi Maloba. ¼ share of North Wanga/Khalaba/625 and children’s benefit income Kshs. 16, 560. 00 till finish school to devolve upon Stephen Eugene Maloba. ¼ share of North Wanga/Khalaba/625, motor vehicle KZF 605 and children’s benefit income Kshs. 16, 560. 00 till finish school to devolve upon Michael Maloba Mutanda. 1/3 share of North Wanga/Mayoni/1633 and children’s benefit income Kshs. 16, 560. 00 till finish school to devolve upon Yvonne Nekesa Maloba. ¼ share of North Wanga/Khalaba/625 and children’s benefit income Kshs. 16, 560. 00 till finish school to devolve upon Silas Maloba Mutanda. 1/3 share of North Wanga/Mayoni/1633 to devolve upon Anita Anyango Maloba. ¼ share of North Wanga/Khalaba/625 to devolve upon Victor Adera Maloba.

5. There had been an earlier grant made on 6th November 2011, to Eunice Makokha Nyangweso and John Chesiro Mutanda, and which had been confirmed. The same was revoked by consent on 12th May 2016, which paved way for the making of a fresh grant to the current administrators, John Chesiro Mutanda, Eunice Makokha Nyangweso and Jacinta Afande, on even date. After the revocation of the earlier grant, the confirmation orders made with respect to it were vacated, hence the filing of the instant summons for confirmation of grant. Directions on the disposal of the said application, dated 7th March 2017, by viva voce evidence, were given on 28th April 2021, when the same came up for hearing.

6. The applicant was the first on the witness stand. She testified that Mary Nasimiyu Nyangweso was a wife of the deceased and lived at Harambee. Anita and Victor were their children, and lived with them at Harambee. She proposed that the two children be given the Harambee property. She said that she was not agreeable that the Harambee property be sold and proceeds of sale be distributed, saying that that was where Anita and Victor lived, and where their mother also lived and was buried. She stated that Jacinta did not live at Harambee, but at Bungoma. She stated that the children of Jacinta shared out the Mumias property amongst themselves, and the children of Mary did not participate in the said sharing. She stated that she was the one catering for the needs of the two children from the proceeds of rent collected. She stated that the two children of Mary had completed secondary school education, and were in employment. She said Jacinta had a home at Bungoma.

7. During cross-examination, she stated that the two children lived with their mother and the deceased on the Harambee property, and that she took them away after the deceased died. She said she was their grandmother, she noted that they were suffering and decided to take them to her home. She stated that there were two houses at Harambee, both of which were rented. She said that it was a sister of the deceased who was collecting the rent. She further stated that the two houses stand on two plots, North Wanga/Kholera/1523 and 1668. She stated that Emily Nafula, her other daughter did not live in the Harambee property, but visited. She said that she used to collect rent until a group of youths displaced her. She stated that Jacinta and her children moved into one of the houses, which was occupied by a tenant. She said she did not know how much she had collected as rent, for she simply took money from the tenants and paid school fees. She stated that she did not know the biological father of the two children, and had never met him, asserting that the only knew the deceased as their father. She stated that the deceased and his wife Mary were buried in Samia, where he had a house. She said that she had not heard that Jacinta had lost a case at Bungoma over land. She said that she did not know that the deceased had homes elsewhere apart from Harambee. She said that it was the court at Mumias that gave Anita and Victor shares in the Mumias Sugar Company Limited.

8. The case for the protestor opened on 12th July 2021. She stated that the deceased was her husband. She described the applicant as a mother-in-law of the deceased, being the mother of Mary Nasimiyu. She stated that the deceased had three wives, herself, the late Mary and kathiryn Mutanda, who lived abroad. She stated that the home of Mary was at Samia, hers was at Bungoma, and that of Catherine at Bookers. She said that Mary predeceased the deceased, and was buried at Busia. She said that she was evicted from Bungoma, after a court process. She stated that she knew Anita and Victor, the children of Mary. The deceased had showed her the children, and she had accepted them. She said that she could not say that North Wanga/Kholera/1668 was Mary’s home. She said that the house on the land was put up by the deceased when he was doing business at Harambee. She said Bungoma ELC No. 42 of 2014, was the case from which eviction orders were made to force her out of the Bungoma property. She did not appeal. On North Wanga/Kholera/1523 and 1668, she said that she lived in the main house, with a child of Eunice, and Mary Nafula, a sister of the deceased, who stayed there with her husband, and she collected rent from them. She said that she approached the sister of Mary after she was evicted from Bungoma, and the former acceded to her moving into Harambee. She said that she had not seen Anita and Victor after she moved into Harambee, and would have loved to live with them both.

9. During cross-examination, she stated that when Mary was married, she came with her children, Anita and Victor, and the deceased told her that he had taken her with her children. The two children continued to live with the deceased and Mary, and took up the names of the deceased. She further stated that the deceased educated them, together with his other children. She stated that the deceased was their parent, and her own children treated them as their siblings. She had also accepted their mother Mary, as a wife of the deceased. She stated that the deceased lived with Mary, at Kholera, where he was doing business, until both of them died. She said that her Bungoma home was put up in 1987. She said the two Harambee plots were bought after she was settled at Bungoma, where she lived with her children. She further stated that the two Harambee plots were bought by the deceased when he was living with Mary. He said that the two of them ran a supermarket at Harambee. They built a residence, as they ran the business. She went on to say that the two, Mary and the deceased, even celebrated their marriage in church. She stated that the death certificate for Mary, indicted that her residence was at Kholera. She further said that the deceased died at Kholera, at home. She said that she never lived with them at Kholera, as her residence was at Bungoma, and Mary would visit her there. She stated that she had four children with the deceased, named as Edna, Eugene, Michael and Yvonne. She said that she moved into the Kholera house in September 2020, after she was evicted from Bungoma. She said at the time the deceased died, the Bungoma property had a court case. She said that all her children should get a share in North Wanga/Kholera/1523. She said there was a vehicle at Bungoma, which should be used by all the children. She said that the children of Mary were minors when the deceased died, but her own children were unemployed, and so they could not assist them. She said that she had been collecting all the rent from the Harambee property.

10. At the close of the oral hearing, directions were taken, for the filing of written submissions. The applicant’s written submissions were filed on 2nd November 2021, dated 10th October 2021. The written submissions by the protestor are dated 30th September 2021, and were filed in court on 2nd November 2021. Both sides have submitted on to both the application for confirmation of grant and that for accounts.

11. On the distribution of the estate, the applicant submits that the children of the house of Mary Nasimiyu had been left out, in the proceedings that had been carried out in Mumias Court succession cause number 29 of 2005. It is submitted that as North Wanga/Kholera/1523 and 1668 are where the matrimonial home of the mother of Anita and Victor sat, the two assets should be devolved to them, with the rest of the family sharing out the rest of the assets. It submitted that the home of the protestor was at Bungoma, where she lived with her children. It is also submitted that the protestor was not a widow of the deceased as her name was not listed in the cause in Mumias Court succession cause number 29 of 2005, and she had raised no protest then. In Re Estate of John Musambayi Katumanga (Deceased) [2014] eKLR (Musyoka J) is cited to provide guidance on how the court should approach the distribution. On the rendering of accounts, the applicant submits that the grant had previously been confirmed in 2006, and an account needed to be rendered on what may have happened to the assets after that. It is also submitted that the protestor ought to account for the rents collected from East Bukusu/South Kanduyi/7969 and 7970, KZF 605, and North Wanga/Kholera/1523 and 1668 for the period that they have been in possession. In re Estate of Makokha Idris Khasabuli (Deceased) [2019] eKLR (Musyoka J) is cited on the matter.

12. On her part, the protestor cites sections 76(d) (iii) and 83(f) (g) of the Law of Succession Act, Cap 160, Laws of Kenya, and In re Estate of Wilfred Munene Ngumi (Deceased) [2020] eKLR (JN Mulwa J) as authority that the administrators have a duty to account, and that failure to render account could be ground for revocation of a grant. On East Bukusu/South Kanduyi/7969 and 7970, it is submitted that these parcels of land had been given to her by the deceased, but she was subsequently evicted from the property after orders were made in Bungoma ELC No. 42 of 2014, where the deceased had been sued by a Cleophas Waswa. She submits that North Wanga/Kholera/1523 and 1668 are the only developed assets, which ought to be shared out amongst all the beneficiaries, given that she and her family were evicted from East Bukusu/South Kanduyi/7969 and 7970.

13. These proceedings relate to the distribution of the intestate estate of the deceased herein. He died in 2005, long after the Law of Succession Act had come into force in 1981. By virtue of section 2(1) of the Law of Succession Act, the estate falls for distribution in terms of Part V of the Law of Succession Act, that is to say sections 35 to 40 of the Act. The law governing applications for confirmation of grant is section 71 of the Law of Succession Act and Rules 40 and 41 of the Probate and Administration Rules. The proviso to section 71, as read together with Rule 40(4), is that the administrator applying for distribution must satisfy the court that they have properly ascertained the persons beneficially entitled to a share in the estate and have properly ascertained the shares due to such beneficiaries. The effect of it is that the court then incurs a duty to be satisfied, before it confirms the grant, that the administrator asking for confirmation, has properly ascertained the persons beneficially entitled to a share in the estate and the shares due to such beneficiaries.

14. The starting point is with the persons beneficially entitled to a share in the estate. Persons beneficially entitled, in the context of intestate succession, refers to two categories. The first is that of the immediate surviving members of the family of the deceased, often referred to as survivors. These are set out in sections 35 to 39, in Part V, of the Law of Succession Act. These include the surviving spouse, children, parents, siblings, grandchildren, and so forth, of the deceased, to the sixth degree of consanguinity. The court should be satisfied that these have been ascertained properly, in terms of the administrator properly identifying the persons who have survived the deceased. The second category is that of creditors, mentioned in sections 39 and 66 of the Law of Succession Act, whether they take the form or character of pure creditors or buyers of the assets of the estate from the deceased. They could be described as liabilities or purchasers also. The general term for both groups is beneficiaries, that is persons who have a beneficial interest in the estate. The beneficial interest of the surviving family members arises naturally from their filial relationship with the deceased, while that of creditors or liabilities has something to do with the transactions that they had had with the deceased. For the first group, where there are doubts, proof that they were members of the family of the deceased would suffice. For the second group, in case of a contest, proof of the transactions they had with the deceased would suffice. In allocating shares, what is available for distribution is the net intestate estate, and it would mean that the liabilities and creditors have to be settled first, and the surviving members shall then share the net intestate estate thereafter, in the manner set out in sections 35, 36, 38 and 39 of the Law of Succession Act.

15. In the instant case, the category of creditors or claimants against the estate may not be so relevant, as none have come forward, and there is no claim that there are any. I shall, therefore, stick with the category of beneficiaries who are survivors of the deceased, that is to say the widows and children of the deceased. The surviving widows have prior right over the children, so I shall start with considering whether the widows of the deceased have been properly ascertained. In the confirmation application, the applicant has not identified any widow of the deceased. Yet under Part V, section 35, where the deceased is survived by a spouse and children, at confirmation, the estate is not distributed directly to the children, for the same is devolved upon the widow during life interest, who may exercise a power of appointment if she so chooses. So, in any application for confirmation of grant, the applicant ought to categorize and identify the survivors or dependants in terms of either spouses or children or parents or siblings, for entitlement to a share in the estate in intestacy, as per Part V, is dependent on the relationship between the survivor and the deceased, and the mode of distribution to be adopted by the court has to be guided by that.

16. Was the deceased survived by a widow or widows? From the filings by the protestor and her testimony at the oral hearing, it emerged that the deceased had married three times. He died a polygamist. The wives were said to be Jacinta Afande Maloba, Kathyrn Mutanda and the late Mary Nasimiyu Nyangweso. That information was important, for if the deceased died a polygamist, the distribution of his estate would be under section 40 of the Law of Succession Act. This is information that the applicant did not disclose, and, therefore, her application did not comply with the proviso to section 71(2) and Rule 40(4) of the Probate and Administration Rules. The applicant, in her written submissions, submits that the protestor was not even a widow of the deceased. She provided no proof of that allegation. In any case, she is not even an immediate member of the family of the deceased, being a mother-in-law of the deceased. I doubt whether she would be the proper person to state who was and was not a spouse of the deceased.

17. The next category of survivors to be ascertained would be the surviving children of the deceased, and if any of the children be dead, the ascertainment of the children of the deceased children of the deceased. The applicant did not categorise the children of the deceased according to their mothers or widows or wives, or according to their respective houses. She simply lumped them together. Distribution under section 40 is according to the number of children in each house, and, therefore, it is critical that the surviving children be categorized according to their respective houses, to facilitate a smooth distribution as per that provision. But have all the children of the deceased been ascertained? I do not think so. There is no dispute regarding the children of the protestor. There is no doubt in my mind that the protestor was a spouse of the deceased. The applicant does not deny that her children were children of the deceased. The said children are identified as Edna, Eugene, Michael and Yvonne. These were properly ascertained. The protestor does not contest the status of the late Mary Nasimiyu, as a wife of the deceased. Indeed, she said that the union between the deceased and the late Mary was solemnized in church. Perhaps that was the reason for which the applicant was submitting that the protestor was not a spouse of the deceased. The protestor does not contest the status of her children either. She states that they were not biological children of the deceased, but then says that the deceased introduced them to her, and she accepted them as such and treated them as such. The said children are identified as Anita and Victor. These two were properly ascertained. I was told there was the third wife, Catherine Mutanda, said to be resident abroad. No one told me whether she had had any children with the deceased. If she had, they would be survivors of the deceased and persons entitled to a share in his estate. They should have been ascertained. If there were no such children, it ought to have been said so. Consequently, the surviving children have not been properly been ascertained, for lack of disclosure as to whether or not Kathryn Mutanda had any children with the deceased. Therefore, the proviso to section 71(2) of the Law of Succession Act and Rule 40(4) of the Probate and Administration Rules have not been complied with.

18. In the affidavit of protest, the protestor proposes distribution of some assets to a Kathryn Lyn Mutanda. I suspect that this is the co-wife that she testified about, however, it is not explained who this Kathryn Lyn Mutanda was, and how she related to the deceased. She has also made provision for such persons as Silas Maloba Mutanda, Nilla Marie Amusala Mutanda, Nerissa Jacqueline Michel Mutanda, Eva Chantal Mutanda, Daisy Apondi Mutanda and John Chesiro Mutanda. There is no narrative as to how these individuals related to the deceased. The applicant on her part, in her affidavit in support of her confirmation application, has listed Nilla Marie Amusala, Nerisa Jacqueline Michael, Eva Chantal Mutanda, Daisy Apondi Mutanda, Elizabeth Namudumu Mutanda, John Chesiro Mutanda and Charles Sanya Mutanda as dependants of the deceased, but there is no explanation as to how these persons were related to the deceased. I suspect that they could be the children of the deceased with his wife Kathryn Lyn Mutanda. But that is just guesswork. The applicant was bound to make a definitive averment in her application and affidavit in support as to who these persons were to the deceased. It is not enough to just throw names of individuals before the court and expect the court to somehow work out who the said individuals were to the deceased. I cannot emphasize enough, that the sharing, envisaged by Part V of the Law of Succession Act, is dependent on the relationship between the deceased and the persons in whose favour the proposals are made.

19. I note that the applicant has listed herself, in the affidavit in support of the application, as a dependant of the deceased. She has not explained in what respect she was a dependant. She is not a surviving spouse of the deceased nor his child nor grandchild. To my understanding she is a mother-in-law of the deceased, and she only comes in to fight for the rights of her grandchildren. She has no claim or entitlement to a share in the estate, and she should not, therefore, be listed as either a survivor or heir or dependant. The persons she purports to represent are now adult, and they should come into the picture, to agitate their claim, instead of appearing by proxy, so that the stranger can step aside. She holds no power of attorney, executed in her favour by those that she claims to represent, and her presence in the matter is, therefore, untenable. This alone would be sufficient ground for me not to confirm her as administratrix.

20. The proviso to section 71(2) of the Law of Succession Act and Rule 40(4) of the Probate and Administration Rules deal with ascertainment of the persons beneficially entitled as well as their shares. The applicant only identified the shares of her two grandchildren, but not those of the other survivors of the deceased. The protestor made a better effort at ascertaining the shares of each of the survivors, that is to say herself as surviving widow, her children and the children of the late Mary. However, to the extent that Kathyrn Mutanda and her children were not ascertained, defeats the whole exercise of sharing out the estate. A true allocation of shares can only work where all the survivors of the deceased and the persons beneficially entitled to a share in the estate have been ascertained.

21. Related to the allocation of shares to the persons ascertained as beneficially entitled to a share in the estate, is the question of the assets available for sharing or distribution. Generally, the parties are agreed on the bulk of the estate available for distribution. The tussle is not so much on which assets are available for distribution, but on how the same ought to be shared. There is, though, the question of East Bukusu/South Kanduyi/7969 and 7970, situate at Bungoma, said to be where the deceased had settled the protestor and her children. The protestor concedes that that was her matrimonial home. The applicant submits that that is the property that should be allocated to her and her children, since North Wanga/Kholera/1523 and 1668 were reserved for the children of the late Mary. So what is the status of East Bukusu/South Kanduyi/7969 and 7970? The protestor says that she was evicted from that property, as there was a court case, where the land was decreed to belong to another person, and the protestor had no option but to vacate. The applicant still insists, in the face of a copy of the judgement where that decree was passed to that effect, that East Bukusu/South Kanduyi/7969 and 7970 is the land to which the protestor is entitled.

22. The evidence placed on record to support the case by the protestor is a judgement delivered on 4th October 2017, by Mukunya J, in Bungoma ELC No. 42 of 2014, where Cleophas Waswa had sued the protestor, seeking her eviction from East Bukusu/South Kanduyi/7969 and 7970. He asserted that the lands belonged to him, having bought them from an Evans Wamalwa Muse. He pointed at proceedings in Bungoma Hccc No. 59 of 2000, where the deceased had sued the said Evans Wamalwa Muse over East Bukusu/South Kanduyi/7969 and 7970, and lost. The deceased then filed an appeal, CA No. 274 of 2008, which he later withdrew. The court allowed the claim by Cleophas Waswa. That judgement is reported in Kenya Law as Cleophas Waswa vs. Jacinta Maloba [2017] eKLR (Mukunya J). Clearly, this is clear evidence that East Bukusu/South Kanduyi/7969 and 7970 cannot be estate assets, and are not available for distribution. The applicant still persists in insisting that these assets are what should be allocated to the protestor. The question is, how is that going to happen? She has not provided any evidence that the judgments in Bungoma HCCC No. 59 of 2000 and Cleophas Waswa vs. Jacinta Maloba [2017] eKLR (Mukunya J) did not exist, and had been conjured by the protestor. Since East Bukusu/South Kanduyi/7969 and 7970 are not estate assets, they cannot be distributed in this cause, and the protestor is entitled to a share of any other property of the deceased, regardless of whether he had settled any of his other houses there.

23. There was also talk of the deceased having some property in Samia, Busia. It was said that that was where his remains and those of the late Mary were interred. The protestor also claimed that the Samia, Busia property was where the deceased settled the late Mary, as her matrimonial home. I have scrupulously pored through the record before me, and I have not come across documents referring to the particulars of that Samia, Busia property. None of the parties, who referred to that property, placed any material on record relating to it. If that property exists, registered in the name of the deceased, then it is an asset in the estate and ought to be included in the distribution schedule. If it was registered in the name of the late Mary, but had been acquired by the deceased for her, then the same amounted to a gift inter vivos, which should also be placed before the court at confirmation, for the court to take it into account, by virtue of section 42 of the Law of Succession Act. He who alleges must prove, and it was incumbent upon the protestor to provide proof that indeed the deceased had property at Samia. The protestor merely averred, in one of her affidavits, that that property was Samia/Buburi/140, but no certificate of official search was placed on record. The administratrix proposed distribution of a plot described as Plot No. 35(284) Busia Municipality. No document was placed on record relating to that plot. There is no telling whether there is any connection between Samia/Buburi/140 and Plot No. 35(284) Busia Municipality, and whether the remains of the deceased person and the late Mary were interred at Samia/Buburi/140 or Plot No. 35(284) Busia Municipality. Going by the above, I am not sure whether the administratrices have placed all the assets of the estate of the deceased before the court for distribution. It may be premature to distribute the estate in the circumstances.

24. I believe, from what I have said above, there is enough to demonstrate that the confirmation application herein is premature, for it was mounted before the administratrices had fully ascertained all the persons beneficially entitled to a share in the estate, and all the assets of the estate. Crucially, the proceedings have so far been mounted to the exclusion of one of the widows of the deceased. There is clearly no compliance with the proviso to section 71(2) and Rule 40(4).

25. Something also needs to be said about non-compliance with the processes set out in Rules 40 and 41 of the Probate and Administration Rules. Rule 40 gives guidelines on what ought to be contained in the affidavit in support of the application for distribution of the estate, otherwise known as the application for confirmation of the grant. Rule 40(3) requires that in that affidavit, the applicant ought to give particulars of the children of the deceased. Rule 40(6) requires or permits any person who wishes to object to the proposed distribution to file an affidavit of protest. That provision presupposes that whoever wishes to protest would be aware of the filing of the application, and that awareness can only be brought to the potential protestor by the person filing the application. The potential protestors would, ideally be the persons referred to in Rule 40(4), as beneficially entitled to a share in the estate. Without notice that the application has been filed, the persons beneficially entitled, such as any surviving spouse or children of the deceased, would have no reason to file a protest when they have no knowledge in the first place that an application proposing distribution had been filed. So, the first duty to the administrator-applicant is to bring to the notice, of the persons beneficially entitled, of the filing of his application. Rule 40(8) envisages that where no protest has filed the court will consider the application on the basis of a consent in writing by all the dependants or persons who are beneficially entitled to a share in the estate, in Form 37. This is critical. Rule 40(8) is telling the court that where there is no protest, it may proceed to confirm the grant, based on a consent executed in Form 37, by the dependants of the deceased or the persons beneficially entitled to the estate, including the children. The court is being told, before approving any proposed distribution, look out for a consent in Form 37, duly executed by the persons beneficially entitled to the estate, who should include the surviving spouse or the children of the deceased, if any. Rule 41(1) provides for what should happen at the confirmation or distribution hearing; the court is required to read the application, the affidavits and the protests, and then hear the applicant, the protestor and any other person interested. Any other person interested would be any other person beneficially interested in the estate, like a surviving spouse or children of the deceased, who are not protesting or who have not filed any papers, taking one position or other on the proposed distribution. Such persons beneficially interested in the estate can only be present at distribution, if they had been given notice of the distribution hearing. Cumulatively, the proviso to section 71(2) and Rules 40(3) (4) (6) (8) and 41(1) presuppose that the confirmation application will have been served on all the persons beneficially interested or at least that the filing of the application is brought to their attention, so that they can file affidavits of protest or execute the consents in Form 37 or attend at the hearing of the confirmation application so that the court can hear them. Failure to involve the persons beneficially entitled to a share in the estate, such as a surviving spouse or children would be fatal to the application, by dint of the proviso to section 71(2), as interpreted in In the Matter of the Estate of Ephrahim Brian Kavai (Deceased) Kakamega HCSC No. 249 of 1992 (Waweru J) (unreported).

26. Was there compliance with the proviso to section 71(2) and Rules 40 and 41? The summons for confirmation of grant dated 18th April 2012, did not comply with Rule 40(3), which is in mandatory terms, which requires that the particulars of the children of the deceased ought to be given in the affidavit sworn in support of the confirmation application. Although the applicant did not identify the children of the deceased in the affidavit sworn in support of the confirmation, application, there is a long list of individuals listed in the affidavit under the rubric “dependants,” but it is not disclosed whether they were widows or children of the deceased. The consequence of the failure to comply with Rule 40(3) is that the applicant failed to comply with the proviso to section 71(2) and Rule 40(4), which required her to satisfy the court that she had properly ascertained the persons beneficially entitled to the estate and their shares. The particulars of the children were not given in the affidavit, contrary to what is required under Rule 40(3).

27. Rule 40(8) was complied with, for the application was accompanied by a consent in Form 37. Form 37 is executed in support of the proposed distribution, by the persons who are beneficially entitled to a share in the estate, and who have not protested. The Form 37 on record was executed by the applicant only. That would mean that she was the only person supporting her proposal. The other sixteen individuals listed in her affidavit, as dependants or persons beneficially entitled to a share in the estate, did not support her proposal. In such a case where the Form 37 on record is executed only by the applicant, and there are sixteen other individuals beneficially entitled, would require that the confirmation application be served on the sixteen who are not consenting, so that they can file affidavits of protest under Rule 40(6) of the Probate and Administration Rules, should they be opposed to the distribution proposed, or attend court at the hearing of the confirmation application, so that the court can hear them, by dint of Rule 41(1) of the Probate and Administration Rules, where they would have the opportunity to state whether they agree or not with the proposals made by the applicant. There is no evidence that the other survivors of the deceased, except for the protestor, who is in any case a co-administratrix, were ever served with the application. The absence of protest affidavits by them should create a presumption that they were not opposed to the proposed distribution, which, then, should have triggered compliance with Rule 40(8), the filing of consents in Form 37, duly executed by them. Rule 40(8) is in mandatory terms. When the confirmation application was heard orally 28th April 2021 and 12th July 2021, the survivors of the deceased, except the protestor, were not in attendance, as persons beneficially entitled or interested in the estate, and they were not heard. That would mean that Rule 41(1) was not complied with

28. I may just have to echo the words of the court in In the Matter of the Estate of Ephrahim Brian Kavai (Deceased) Kakamega Hcsc No. 249 of 1992 (Waweru J) (unreported), where it was asserted that the requirements of the proviso to section 71(2) of the Law of Succession Act are in mandatory terms, and that failure by the court to satisfy itself, that the persons beneficially entitled to a share in the estate and their shares had been properly ascertained by the administrators applying for confirmation, renders any orders made on the confirmation of the grant, and the resulting certificate of confirmation of grant, illegal. The court stated that the confirmation process in intestacy is not a mere formality, where a grant is simply confirmed because the six months timeline, stated in the law, has expired. Rather it is the most important aspect of intestate succession. It was observed that most of the disputes in succession proceedings would be avoided where the court to properly handle the confirmation process. (See also In the Matter of the Estate of Benjamin Ng’ono Mbati alias Ng’ono Mbati (Deceased)Kakamega Hcsc No. 77 of 2014 (Musyoka J) (unreported) and In the Matter of Mutialo Silwale (Deceased)Kakamega Hcsc No. 258B of 2011 (Musyoka J) (unreported). The business of the administrator satisfying the court, and the court itself being satisfied, that the persons beneficially entitled and their shares had been properly ascertained, is of critical importance in the confirmation process, and the failure to get the satisfaction ought to vitiate the process.

29. The deceased died long after the Law of Succession Act, had come into force in 1981. He died intestate. His estate, therefore, fails for distribution in accordance with Part V of the Law of Succession Act. He died a polygamist, having married three wives during his lifetime. His estate, therefore, should be for distribution in accordance with section 40 of the Law of Succession Act, which provides for how the estate of a polygamist is to be handled. In the first place, the estate is divided among the houses according to the number of children in each house, with the surviving spouse as an additional unit. After that the share allocated to each house is distributed amongst the members of the house in terms of sections section 35 to 38, depending on the composition of each house.

30. For avoidance of doubt, section 40 of the Law of Succession Act states as follows:“Where intestate was polygamous1. 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 in the personal and household effects and the residue of the intestate estate within each house shall then be in accordance with the russet out in sections 35 to 38. ”

31. In the instant case, the administratraces have not neatly identified the children in each house. At least particulars of the children of the protestor and the late Mary have been identified, but not those of Kathryn Lyn Mutanda. Distribution according to section 40, dependent, as it is, on the number of children in each house, cannot be undertaken before the children of the Kathryn Lyn Mutanda have been ascertained, and any other children the deceased might have had with women who were not married to him.

32. In view of everything that I have discussed in the foregoing paragraphs, the best way forward should be to postpone the application dated 7th March 2017, in terms of section 71(2) (d) of the Law of Succession Act, for the administratrices to address the issues that I have raised so far.

33. On the second limb of the application, on the accounts, the law is quite clear. The office of an administrator is one of trust, for the property of the deceased vests in the administrator to be held by him on behalf of others, be they heirs, dependants, survivors, creditors, etc. The administrator is not the owner of the property, but a mere manager of it, pending the distribution of the property amongst the persons who are entitled to it in law. Since he handles property that does not belong to him, he would be in a fiduciary position with respect to the property and the persons who are beneficially entitled to it. He is a trustee, and is accountable to the beneficiaries. That is trite trust law. See In re Estate of Andrew Kisa Sakwa (Deceased) [2018] eKLR (Muigai J) and In re Estate of Njue Kamunde Deceased [2018] eKLR (Limo J). The duty to account is also owed to the court, for it is the court which appoints the administrator to that high office, of managing assets of a dead person on behalf of the beneficiaries. The administrator has to account to the appointing authority, on what he has done with the trust bestowed upon him by that authority. So the issue of accounting is not debatable.

34. There are several aspects to this account. Firstly, both administratrices have to account of their administration of the estate from the respective dates of their appointment. Secondly, any previous administrator of the estate is also under a duty to account for their handling of the estate for the period that they were in office. They are duty bound. Sections 76(d) (iii) and 83(e) of the Law of Succession Act are clear enough on this. Accounts should be given timeously. None have ever been rendered herein. The other aspect of it is that section 83(e) expects, that at the time an application for confirmation of grant is being mounted, the applicant accounts for her handling of the estate. The applicant in the instant application has not done so. When proposing distribution of the estate, the administrator is expected to not only tell the court the persons that they have ascertained to be beneficially entitled to a share in the estate and why, and an inventory of the assets they have ascertained as being to the estate, and the debts and liabilities ascertained to be owing by the estate, they must also give an account of whatever else they have done with assets. Have they leased them out? Have they been collecting any revenue? If so, how much has been collected? Where the funds collected are? If they have been utilized, for what reasons or purpose? A breakdown of such utilization, supported by relevant receipts. That is what administration entails. That has not been done in this case. The third aspect of this, is that the previous grants had been confirmed, and certificates of confirmation of grant issued. There is a possibility that transmission of some of the assets may have been done. An account would be necessary to establish whether transfers have been done, so that the court can make appropriate orders. This should be an account by the administrators, and not the beneficiaries of the assets. An account was called for North Wanga/Kholera/1523 and 1668. Both the applicant and the protestor collected rents from these premises at some point or other. Both have a duty to account for the amounts that they collected, and if they used or utilized or spent the funds, account for where that money went. I was also asked to order accounts in respect of East Bukusu/South Kanduyi/7969 and 7970. It was ruled in Bungoma HCCC No. 59 of 2000 and Cleophas Waswa vs. Jacinta Maloba [2017] eKLR (Mukunya J) that these two assets did not belong to the deceased. Therefore, there would be no basis whatsoever for requiring the protestor to account for any revenue collected from them. If anyone were to require an account, by way of what are known as mesne profits, it would be Cleophas Waswa, and not the applicant nor this probate court.

35. The final orders are as follows:a.That the application dated 7th March 2017 is postponed, in terms of paragraph 32 of this judgment, and the administratrices are directed to take such steps would bring compliance with the proviso to section 71(2) of the Law of Succession Act and Rule 40(4) Probate and Administration Rules, as pointed out in the body of the judgment;b.That the administratrices and John Chesiro Mutanda, are hereby directed to render accounts along the lines pointed out in paragraph 34 here above, and that the said accounts shall be in affidavit form, supported by appropriate documentation;c.That the administratrices shall have sixty (60) days to comply, and the matter shall be mentioned thereafter for monitoring and reporting;d.That each party shall bear their own costs; ande.That any party aggrieved by the orders made herein has leave of twenty-eight days, to move the Court of Appeal, appropriately.

DELIVERED, DATED AND SIGNED IN OPEN COURT AT KAKAMEGA THIS 13TH DAY OF MAY 2022W. MUSYOKAJUDGEMr. Erick Zalo, Court Assistant.Mr. Bwo’Onchiri, Advocate, for the applicant.Mr. Maloba, instructed by Hammerton Maloba & Company, Advocates, for the protestor.