[2022] KEHC 2970 (KLR)

In re Estate of Peter Kongoni Mulupi (Deceased) (Succession Cause 375 of 2011) [2022] KEHC 2970 (KLR) (13 May 2022) (Ruling)

Neutral citation: [2022] KEHC 2970 (KLR)

Republic of Kenya

In the High Court at Kakamega

Succession Cause 375 of 2011

WM Musyoka, J

May 13, 2022

Ruling

1. I delivered a judgment and a ruling on 20th November 2020 and 6th August 2021, respectively. Following directions that I gave in those decisions, the administrators filed further documents, from which I have gotten finer particulars that will assist me in the distribution of the estate herein.

2. The application for determination is for confirmation of grant or distribution of the estate, dated 5th November 2012. The deceased died intestate in 2010. He died a polygamist. For the purpose of distribution, I need to identify the persons who are beneficially entitled to shares in the estate, the assets available for distribution, and how the estate ought to be distributed.

3. On survivors, the deceased had three wives: Rabbecca Nanyama Kongoni, Elena Oyundo Mulupi and Susan Wayela Kongoni. The three are all dead. I shall identify the survivors in terms of houses, so that the family of Rabbecca Nanyama Kongoni shall be the first house, that of Elena Oyundo Mulupi the second house, and that of Susan Wayela Kongoni the third house. That their wives had children. The children in the first house are the late John Manyali Kongoni, Alice Meta Kongoni, Veronica Chimoso Kongoni and Kennedy Wekulo Mulupi. The children in the second house are Francis Mumia Peter, Kutondo Peter and Janet Kongoni. The children in the third house are the late Reuben Joko Masava Kongoni, the late Naomi Kwamang’alia Kongoni, Chebuyi Kongoni, Khaikwa Kongoni, Flora Mutenyo Kongoni, Veronica Wechuli Kongoni and the late Zablon Injendi Kongoni. I am satisfied that the survivors of the deceased have been identified. There are also two persons identified as purchasers, being Nicholas Lusiola Chisala, John Avomba Ambani and Ann Khavera Muchika.

4. The deceased was said to have died possessed of North Kabras/Malava/146, 1694 and 1696, and Plot No. 1 Butali. North Kabras/Malava/146 was awarded to the second house by the court in Butali DMCLC No. 3 of 1969, in a judgment delivered on 17th July 1969. North Kabras/Malava/1694 was subdivided into eight portions, being North Kabras/Malava/2927, 2928, 2929, 2930, 2931, 2932, 2933 and 2934. North Kabras/Malava/2927 was transferred to the third wife and her son Chebuyi Mulupi, and it was later transferred to the sole name of Chebuyi Mulupi. North Kabras/Malava/2930 was subdivided into North Kabras/Malava/3401 and 3402. North Kabras/Malava/3401 was allegedly sold to Ann Khavera Muchika and John Avomba Ambani, and North Kabras/Malava/3402 to Nicholas Lusiola Chisala. Kabras/Malava/3402 was registered in the name of Nicholas Lusiola Chisala, but the status of North Kabras/Malava/3401 is still unclear. North Kabras/Malava/2930 was transferred to the name of John Mulupi Kongoni. North Kabras/Malava/2933 was transferred to the name of Chebuyi Kongoni. That left North Kabras/Malava/2928, 2931, 2932, 2934 and 3401 in the names of the deceased. North Kabras/Malava/1696 was said to have been sold to the late Charles Luvembe Chibuyi, and was under occupation by his family. Butali Plot No. 1 was said to have been held in trust by the deceased on behalf of his brothers, who later sold it to Chebuyi Mulupi, but there is no consensus on the sale to him.

5. I should consider next how the estate is to be shared out. I shall start with the assets that have already been disposed of. It would appear that the second house of the deceased was settled during the lifetime of the deceased, through Butali DMCLC No. 3 of 1969, a suit which pitted the second wife and the deceased, and her house or family was awarded North Kabras/Malava/146, which was to be held in trust by the second wife for benefit of her two sons. The land, North Kabras/Malava/146, was subsequently subdivided into North Kabras/Malava/3256 and 4214, and registered in the names of the two sons, being Francis Mulupi Peter and Kutondo Peter. That disposes of the property known as North Kabras/Malava/146.

6. The second property North Kabras/Malava/1694 was subdivided into North Kabras/Malava/2927, 2928, 2929, 2930, 2931, 2932, 2933 and 2934. Out of those subdivisions North Kabras/Malava/2927, 2929, 2930 and 2933 were distributed. North Kabras/Malava/2927 was transferred to Chebuyi Kongoni, North Kabras/Malava/2929 was subdivided and sold to third parties, and North Kabras/Malava/2930 was transferred to John Mulupi Kongoni and North Kabras/Malava/2933 to Chebuyi Kongoni. From North Kabras/Malava/1694 the survivors of the deceased who benefitted from these transfers were Chebuyi Kongoni from the third house and John Mulupi Kongoni from the first house. That would mean that all the other children, that is to say Alice Meta Kongoni, Veronica Chimoso Kongoni, Kennedy Wekulo Kongoni, Janet Kongoni, Reuben Joko Masava Kongoni, Naomi Kwamang’alia Kongoni, Khaikwa Kongoni, Flora Mutenyo Kongoni, Veronica Wechuli Kongoni and Zablon Injendi Kongoni, have not been provided for and are entitled to a share in the remaining sub-parcels from North Kabras/Malava/1694.

7. Butali Plot No. 1 appears to be registered in the name of Chebuyi Mulupi Kongoni. There are documents to that effect from the Butali Town Council. It is claimed that the property never belonged to the deceased in the first place, for he held the property merely in trust for his brothers, who later allegedly sold it to Chebuyi Mulupi Kongoni. Some of the survivors expressed reservations about that, but no evidence was adduced to counter that of Chebuyi Kongoni. The detractors could have caused officials from the Butali Town Council to be summoned to produce relevant documents, but nothing was done in that direction. I shall presume that this asset does not belong to the estate, and shall refrain from commenting further. Any party who strongly feels that the same was estate property will be at liberty to commence proceedings at the Environment and Land Court against Chebuyi Kongoni, for determination of the ownership thereof between the estate and the said Chebuyi Kongoni, for I have no jurisdiction to determine questions on ownership of land.

8. Some of the assets were passed to third parties. North Kabras/Malava/1696 is still registered in the name of the deceased, but there is consensus that the same was sold to the late Charles Luvembe Chibuyi, and that it was still in occupation by his family. North Kabras/Malava/2929 was subdivided into North Kabras/Malava/3401 and 3402. North Kabras/Malava/3402 was registered in the name of Nicholas Lusiola Chisala, and there is no contest on the same. North Kabras/Malava/3401 is still in the name of the deceased, but there is consensus that it was sold to third parties. The majority say it was sold to Ann Khavera Muchika, Kennedy Wekulo Mulupi, however, says it was sold to one John Avomba Ambani, by the third wife after the deceased died.

9. The assets that are available for distribution are North Kabras/Malava/ 2928, 2931, 2932 and 2934. These are to be distributed amongst Alice Meta Kongoni, Veronica Chimoso Kongoni, Kennedy Wekulo Kongoni, Janet Kongoni, Reuben Joko Masava Kongoni, Naomi Kwamang’alia Kongoni, Khaikwa Kongoni, Flora Mutenyo Kongoni, Veronica Wechuli Kongoni and Zablon Injendi Kongoni. Some of the children of the deceased who have not been provided for are dead. The administrators only disclosed the children and widows of the sons who are dead, but did not disclose about the daughters who are dead, as to whether they had children of their own or not. This confirmation process has taken too long, and I shall not postpone its determination any more. I shall accordingly proceed on the presumption that all the dead children of the deceased were survived by children of their own. In the distribution, I shall exclude Chebuyi Kongoni and John Mulupi Kongoni as they benefitted from transfers that happened either during the lifetime of the deceased or thereafter. I shall also exclude the surviving widow, Susan, as she sold one of the assets after the demise of the deceased and she benefited from an inter vivos transfer of another, which interest she conveyed to her son Chebuyi Kongoni. I shall leave out Janet Kongoni as the second house was allocated its share in 1969, and her share should come from there.

10. North Kabras/Malava/2928 shall be shared equally between Veronica Chimoso Kongoni, Alice Meto Kongoni and Veronica Wechuli Kongoni. North Kabras/ Malava/2931 shall devolve upon the estate of the late Reuben Joko Masava Kongoni and Naomi Kwamang’alia Kongoni; while North Kabras/Malava/2932 should go to Kennedy Wekulo Mulupi and Khaikwa Kongoni; North Kabras/Malava/2934 to the estate of the late Zablon Injendi Kongoni and Flora Mutenyo Kongoni; North Kabras/Malava/1696 to the estate of the late Charles Luvembe Chibuyi and North Kabras/Malava/3401 shall devolve upon Ann Khavera Muchika. For the beneficiaries who are dead, the share shall devolve upon the estate, to be distributed in succession causes to be initiated in their respective estates, in a processes that shall include all the persons entitled. For North Kabras/Malava/3401, if there is another or other contenders to that property, they shall be at liberty to move the Environment and Land Court, for determination the issue of ownership as between them and Ann Khavera Muchika.

11. The summons for confirmation of grant, dated 5th November 2012, is disposed of in the terms spelt out in paragraph 10 here above. A certificate of confirmation of grant shall issue accordingly. Whoever shall be aggrieved by these orders has twenty-eight days leave to lodge appeal at the Court of Appeal. It is so ordered.

DELIVERED, DATED AND SIGNED IN OPEN COURT AT KAKAMEGA ON THIS 13THDAY OF MAY 2022WM MUSYOKAJUDGEErick Zalo, Court AssistantMr. Mutoka, instructed by Shivachi Mutoka & Co., Advocates for the applicant.Mr. Mbaka, instructed by Omwando Mbaka & Company, Advocates, for the 1st administrator.Ms. Rauto, instructed by Rauto & Company, Advocates, for the 2nd administrator.