[2022] KEHC 14839 (KLR)

In re Estate of Samson Amasini Adeya (Deceased) (Succession Cause 151 of 2011) [2022] KEHC 14839 (KLR) (4 November 2022) (Judgment)

Neutral citation: [2022] KEHC 14839 (KLR)

Republic of Kenya

In the High Court at Kakamega

Succession Cause 151 of 2011

WM Musyoka, J

November 4, 2022

Judgment

1. The cause relates to the estate of Samson Amasini Adeya, who died on 5th June 1990. There is a letter from the Chief of Chimuche Location, dated 21st February 2011, indicating that the deceased had been survived by 2 sons and 4 grandsons, being Meshack Amazimbi, Joshua Injaga, Hudson Inyangu Injaga, Francis Magiri Asili, Hudson Anyole Asili and Geoffrey Amazimbi. There are also 2 persons listed as liabilities, being Pius Wishaminya and Ayub Masai. The deceased is expressed to had died possessed of property described as South Kabras/Chemuche/1127 and 1129. Representation was sought in the cause by Meshack Amazimbi, in his capacity as son, in a petition lodged on 24th February 2011. The deceased was said to have been survived by Meshack Amazimbi, Joshua Injaga, Hudson Inyangu Injaga, Francis Magiri Asili, Hudson Anyole Asili and Geoffrey Amazimbi, and he was said to have died possessed of South Kabras/Chemuche/1129. Pius Wishaminya and Ayub Masai are listed as liabilities. Letters of administration intestate were made to Meshack Amazimbi on 22nd July 2011, and a grant was duly issued, dated 27th July 2011. I shall refer to Meshack Amazimbi, hereafter, as the administrator.

2. I am called upon to determine a summons for confirmation of grant, dated 20th March 2013, by the administrator. He avers that the deceased is survived by 7 individuals, being Meshack Obiero Amazimbi, Simon Amazimbi, Hudson Inyangu Injaga, John Adena, Francis Magiri Asili, Geoffrey Amazimbi and Florence Injaga. It is proposed that South Kabras/Chemuche/1127 be shared out unevenly between 8 individuals, being Meshack Obiero Amazimbi 2½ acres, Simon Amazimbi 2½ acres, Hudson Inyangu Injaga 2 acres, John Adena 1 acre, Francis Magiri Asili 1 acre, Hudson Anyore Asili 1 acre, Geoffrey Amazimbi 1 acre and Florence Injaga 1 acre. The application is not accompanied by a consent in Form 37, as envisaged by Rule 40(8) of the Probate and Administration Rules.

3. On 12th July 2013, Hudson Inyangu Injaga filed a summons, dated 11th July 2013, seeking to have South Kabras/Chemuche/1128, issued to Margaret Wakhoya Mukhonje and Jenspeter Peuker, on 2nd October 2009, cancelled and reverted to the name of the deceased. He complains that the creation of that title was done after the demise of the deceased, and amounts to intermeddling with the estate. He also argues that the effect of that registration was to disinherit and displace some of the survivors of the deceased. He proposes that the estate be distributed as follows: Meshack Obiero Amazimbi 2½ acres out of South Kabras/Chemuche/1129, Simon Amazimbi 2½ acres out of South Kabras/Chemuche/1128, Hudson Inyangu Injaga 3 acres out of South Kabras/Chemuche/1127, John Adena 1½ acres out of South Kabras/Chemuche/1127, Francis Magisi ½ acre out of South Kabras/Chemuche/1127, Hudson Anyore Asili 0. 675 acre, Geoffrey Amazimbi 1. 2 acres, and Pius Mmboyi Wishaminya 2 acres out of South Kabras/Chemuche/1127 and ½ acre out of South Kabras/Chemuche/1128. Out of that application, a consent order was recorded on 24th October 2013, to effect that all title deeds arising from Kakamega/Chemuche/794 be cancelled, and reverted to the estate of the deceased. I shall treat Hudson Inyangu Injaga as the 1st protestor.

4. Margaret Vakhoya Mukhonje swore a further affidavit on 28th August 2014. She avers that she had bought 0. 75 HA of Kakamega/Chemuche/794, from Simeon Lunani, who had a purchaser’s interest. The said Simeon Lunani then processed a title in her name. She avers that she and her husband were entitled to 0. 75 HA from the estate, and that at distribution they ought to be allocated that acreage. She further proposes that the estate ought to be distributed in terms of how the same was occupied on the ground. I shall treat Margaret Vakhoya Mukhonje as the 2nd protestor.

5. Directions were given on 2nd May 2013, for disposal of the summons for confirmation of grant by way of viva voce evidence. Although no directions were given for filing of witness statements, I have seen a number on record.

6. The oral hearings commenced on 1st July 2015, before Sitati J. Hudson Inyangu Injaga, the 1st protestor, was the first to take the witness stand. He informed the court that the deceased had 2 wives, who he named as Mwenesi and Rabecca. The deceased had 5 children with the 2 wives. The late Mwenesi had 3 children, Joram Aseli, Joshua Injaga and Samuel Musoga. The late Rabecca had 2 children, being Meshack Amazimbi and Simon Amazimbi. The children in the 1st house had passed on. He described Florence Injaga as the widow of his uncle Joshua Injaga. The deceased died possessed of 1 parcel of land, South Kabras/Chemuche/794, measuring 12 acres. He said that the said land had been distributed, even though he did not know how that happened. He said he would object to the property being reverted to South Kabras/Chemuche/794. He stated that all the individuals listed in his affidavit ought to get shares in the estate. He stated that some of the survivors of the deceased had sold their entitlements. He said he had not sold part of the estate to anyone. He said that his own father, Samuel Injaga, had sold 2 acres out of the land given to him by the deceased, to Pius. Meshack had sold 1½ acres of his entitlement to Margaret, and 1¾ acres to Lunani. Simon Amazimbi had sold ½ acre to Pius; while John Adeya, a son of Asili, had sold 1½ acres to Ayub Mase. He claimed that the deceased had shared out his land before he died.

7. Pius Mmboyi Wishiminya followed. He said that he was not acquainted with the deceased, and that his connection with the estate was through his son, Joshua Injaga Amazimbi, who had sold to him 2 acres of land, in 1996. He said that he had executed a sale agreement, which he said was destroyed in a fire at his house in 2008. Later Simeon Amazimbi sold to him ½ acre in 1998. He said that he took possession, and developed the land. He said that his property was South Kabras/Chemuche/1127, being 2 acres and ½ acre from South Kabras/Chemuche/1128. He said that the same was hived off South Kabras/Chemuche/794. He said that he did not have a title deed to his land.

8. Musa Chiruyi Katembu testified next, on behalf of the 2nd protestor, Margaret Vakhoya Mukhonje, on the strength of a power of attorney dated 30th March 2017. He started that the 2nd protestor claimed South Kabras/Chemuche/1128, which she had bought from Simon Buranji Manje. The witness was stood down, and was not recalled to complete his testimony.

9. Mulati Mirao, a village elder, testified next. He stated that only 2 children of the deceased were alive, being Meshack Kopiero Amazimbi and Simon Amazimbi, as Joram Asili, Joshua Injaga and Samuel Musoga had died. He stated that the sons of the deceased who had died had children. The sons of Joram were said to be Atenya Asiri, Makili Asiri and Anyore Asili. He said that he did not know the children of Joshua Injaga. He identified the children of Samuel Musoga as Hudson Inyangu and Sussy Musoga. He said that Hudson had not sold the share due to him from the deceased. He asserted that the deceased had allocated his land before he died. He said that Joshua had sold his due to Pius Mmboyi.

10. The case for the administrator opened on 17th February 2022. He said that he had possession of the original title deed for South Kabras/Chemuche/794. He said that the deceased had originated from Maragoli, but had bought South Kabras/Chemuche/794 within Kakamega. He said that the deceased gave 2 sons 5 acres, he got 2½ acres and his brother 2½ acres. They were showed where to farm. He said the property was distributed amongst the widows. He then revised that and said that they were given 7 acres, and that was why the 1st protestor was getting the 2 acres that were due to his father, Musoga. He then said that they were supposed to get equal shares. He said he did not recognize all the buyers. He said that he did not know their names. He said the 1st three sons of the deceased had 3 children, who he named as Joram Aziri, Joshua Injaga and Samuel Musoga. He said that all of the 3 sons in the 1st house were dead. He said he had allocated that house its shares, to John Adena, Francis Magiri, Hudson and Teresa Achitsa. He said that the 1st house got 7 acres, while the 2nd house got 2 acres. He wanted the distribution by the deceased to be retained, which he said was done in 1974.

11. Simeon Kahilwa Amatsimbi followed. He supported the case by the administrator. He said that the deceased had 5 children, who he named as Joram Aseri, Joshua Injaga, Meshack Amazimbi and Simeon Amazimbi. He described the 1st protestor as a son of Musoga, adding that he could get the share due to his father, which was 2 acres. He said that the 1st house should get 7 acres and the 2nd house 2 acres. He said they should all get equal shares. He said that he had not sold land, but Joshua Injaga had sold land to Pius, which he took possession of and later sold. He said that the 1st house was shown 7 acres, while the 2nd house was shown 5 acres.

12. At the close of the oral hearings, the parties opted to file written submissions. Only the administrator filed written submissions, dated 25th May 2022. The same are a summary of the factual background to the matter, inclusive of the proposed distribution, but with no reference to the law. The said written submissions are a mere summary of the averments made in the affidavits and the oral evidence.

13. The application before me is for confirmation of grant. The deceased died in 1990, long after the Law of Succession Act, Cap 160, Laws of Kenya, had come into force in 1981. The estate falls for distribution, in the circumstances, in accordance with the provisions of the Law of Succession Act, by dint of section 2(1) of the Act, which states as follows:.“Except as otherwise expressly provided in this Act or any other written law, the provisions of this Act shall constitute the law of Kenya in respect of, and shall have universal application to, all cases of intestate or testamentary succession to the estate of deceased persons dying after the commencement of this Act and to the administration of estates of those persons.”

14. One the effects of section 2(1) of the Law of Succession Act is to oust the application of African customary, so that upon the death of a person resident in Kenya after 1st July 1981, when the law became effective, his or her estate is to be distributed in accordance with a will made by that person in accordance with the provisions of the Act, and where he died intestate, distribution would be in accordance with Part V of the Law of Succession Act. Luhya customary law does not apply to the distribution of the estate herein for that reason. There is provision for application of customary law to certain intestate estates, unfortunately, for the parties hereto, that exception, stated in sections 32 and 33, does not cover land situated within Kakamega County.

15. For avoidance of doubt, sections 32 and 33 of the Law of Succession Act state as follows:“32. Excluded propertyThe provisions of this Part shall not apply to-(a) agricultural land and crops thereon; or

(b) livestock, in the various Districts set out in the Schedule:West PokotWajirTurkanaGarissaMarsabitTana RiverSamburuLamuIsioloKajiadoManderaNarok”

(a) agricultural land and crops thereon; or

(b) livestock, “33. Law applicable to excluded propertyThe law applicable to the distribution on intestacy of the categories of property specified in section 32 shall be the law or custom applicable to the deceased's community or tribe, as the case may be.”

16. The law that governs or regulates confirmation of grants is section 71 of the Law of Succession Act, which provides as follows:“71. “Confirmation of grants (1) After the expiration of a period of six months, or such shorter period as the court may direct under subsection (3), from the date of any grant of representation, the holder thereof shall apply to the court for confirmation of the grant in order to empower the distribution of any capital assets.

(2) Subject to subsection (2A), the court to which application is made, or to which any dispute in respect thereof is referred, may- (a) if it is satisfied that the grant was rightly made to the applicant, and that he is administering, and will administer, the estate according to law, confirm the grant; or

(b) if it is not so satisfied, issue to some other person or persons, in accordance with the provisions of sections 56 to 66 inclusive, a confirmed grant of letters of administration in respect of the estate, or so much thereof as may be unadministered; or TABLETRTC{style width: 5%}(c)TC{colspan 2|style width: 94%}order the applicant to deliver or transfer to the holder of a confirmed grant from any other court all assets of the estate then in his hands or under his control; orTRTC{colspan 2|style width: 34%}(d)TC{colspan 2|style width: 65%}postpone confirmation of the grant for such period or periods, pending issue of further citations or otherwise, as may seem necessary in all the circumstances of the case:Provided that, in cases of intestacy, the grant of letters of administration shall not be confirmed until the court is satisfied as to the respective identities and shares of all persons beneficially entitled; and when confirmed the grant shall specify all such persons and their respective shares.TRTC{style width: 5%}(a)TC{colspan 2|style width: 94%}if it is satisfied that the grant was rightly made to the applicant, and that he is administering, and will administer, the estate according to law, confirm the grant; orTRTC{colspan 2|style width: 31%}(b)TC{colspan 2|style width: 68%}if it is not so satisfied, issue to some other person or persons, in accordance with the provisions of sections 56 to 66 inclusive, a confirmed grant of letters of administration in respect of the estate, or so much thereof as may be unadministered; orTRTC{style width: 5%}(c)TC{colspan 2|style width: 94%}order the applicant to deliver or transfer to the holder of a confirmed grant from any other court all assets of the estate then in his hands or under his control; orTRTC{colspan 2|style width: 34%}(d)TC{colspan 2|style width: 65%}postpone confirmation of the grant for such period or periods, pending issue of further citations or otherwise, as may seem necessary in all the circumstances of the case:(2A) Where a continuing trust arises and there is only one surviving administrator, if the court confirms the grant, it shall, subject to section 66, appoint as administrators jointly with the surviving administrator not less than one or more than three persons as proposed by the surviving administrator which failing as chosen by the court of its own motion.

(3) The court may, on the application of the holder of a grant of representation, direct that such grant be confirmed before the expiration of six months from the date of the grant if it is satisfied- TABLETRTC{style width: 6%}(a)TC{colspan 3|style width: 93%}that there is no dependant, as defined by section 29, of the deceased or that the only dependants are of full age and consent to the application;TRTC{colspan 2|style width: 7%}(b)TC{style width: 92%}that it would be expedient in all the circumstances of the case so to direct.TRTC{style width: 6%}(a)TC{colspan 3|style width: 93%}that there is no dependant, as defined by section 29, of the deceased or that the only dependants are of full age and consent to the application;TRTC{colspan 2|style width: 7%}(b)TC{style width: 92%}that it would be expedient in all the circumstances of the case so to direct.(4) Notwithstanding the provisions of this section and sections 72 and 73, where an applicant files, at the same time as the petition, summons for the immediate issue of a confirmed grant of representation the court may, if it is satisfied that- (a) there is no dependant, as defined by section 29, of the deceased other than the petitioner;

(b) no estate duty is payable in respect of the estate; and (c) it is just and equitable in all circumstances of the case, immediately issue a confirmed grant of representation.”

(a) there is no dependant, as defined by section 29, of the deceased other than the petitioner;

(b) no estate duty is payable in respect of the estate; and

(c) it is just and equitable in all circumstances of the case,

(1) After the expiration of a period of six months, or such shorter period as the court may direct under subsection (3), from the date of any grant of representation, the holder thereof shall apply to the court for confirmation of the grant in order to empower the distribution of any capital assets.

(2) Subject to subsection (2A), the court to which application is made, or to which any dispute in respect thereof is referred, may- (a) if it is satisfied that the grant was rightly made to the applicant, and that he is administering, and will administer, the estate according to law, confirm the grant; or

(b) if it is not so satisfied, issue to some other person or persons, in accordance with the provisions of sections 56 to 66 inclusive, a confirmed grant of letters of administration in respect of the estate, or so much thereof as may be unadministered; or (c) order the applicant to deliver or transfer to the holder of a confirmed grant from any other court all assets of the estate then in his hands or under his control; or

(d) postpone confirmation of the grant for such period or periods, pending issue of further citations or otherwise, as may seem necessary in all the circumstances of the case:Provided that, in cases of intestacy, the grant of letters of administration shall not be confirmed until the court is satisfied as to the respective identities and shares of all persons beneficially entitled; and when confirmed the grant shall specify all such persons and their respective shares.

(a) if it is satisfied that the grant was rightly made to the applicant, and that he is administering, and will administer, the estate according to law, confirm the grant; or

(b) if it is not so satisfied, issue to some other person or persons, in accordance with the provisions of sections 56 to 66 inclusive, a confirmed grant of letters of administration in respect of the estate, or so much thereof as may be unadministered; or

(c) order the applicant to deliver or transfer to the holder of a confirmed grant from any other court all assets of the estate then in his hands or under his control; or

(d) postpone confirmation of the grant for such period or periods, pending issue of further citations or otherwise, as may seem necessary in all the circumstances of the case:

(2A) Where a continuing trust arises and there is only one surviving administrator, if the court confirms the grant, it shall, subject to section 66, appoint as administrators jointly with the surviving administrator not less than one or more than three persons as proposed by the surviving administrator which failing as chosen by the court of its own motion.

(3) The court may, on the application of the holder of a grant of representation, direct that such grant be confirmed before the expiration of six months from the date of the grant if it is satisfied- (a) that there is no dependant, as defined by section 29, of the deceased or that the only dependants are of full age and consent to the application;

(b) that it would be expedient in all the circumstances of the case so to direct.

(a) that there is no dependant, as defined by section 29, of the deceased or that the only dependants are of full age and consent to the application;

(b) that it would be expedient in all the circumstances of the case so to direct.

(4) Notwithstanding the provisions of this section and sections 72 and 73, where an applicant files, at the same time as the petition, summons for the immediate issue of a confirmed grant of representation the court may, if it is satisfied that- (a) there is no dependant, as defined by section 29, of the deceased other than the petitioner;

(b) no estate duty is payable in respect of the estate; and (c) it is just and equitable in all circumstances of the case, immediately issue a confirmed grant of representation.”

(a) there is no dependant, as defined by section 29, of the deceased other than the petitioner;

(b) no estate duty is payable in respect of the estate; and

(c) it is just and equitable in all circumstances of the case, 17. Section 71, as read with section 55, essentially enables confirmation of grant to facilitate distribution of the capital assets of the estate. Confirmation of the grant entails 2 principal things. One, it is about confirmation of the administrators. There are 3 elements to this, according to section 71(2)(a)(b). The court will confirm the administrators to complete administration of the estate, upon being satisfied that the administrators were properly appointed, that upon being appointed they have administered the estate in accordance with the law, and that upon being confirmed they will continue to administer the estate in accordance with the law. If the court is satisfied that the appointment of the administrators was proper, and that they had administered the estate, up to the point of confirmation, in accordance with the law, and would, upon being confirmed, continue to administer the estate in accordance with the law, it would confirm the grant. If not so satisfied, it would deal with the matter in terms of section 71(2)(b)(c) and (d), by way of revoking the grant and appointing another administrator to take over conduct of the administration, or by postponing the confirmation and requiring the administrators to take corrective measures.

18. Two, the confirmation application is about the court approving the proposals placed before it on the distribution of the estate. The court may confirm the proposals and the administrators at the same time, or it may confirm the proposals, but not the administrators. Where proposals are approved but not the administrators, the court revokes the grant and appoints another administrator to distribute the estate as per the confirmed proposals.

19. However, before the court considers the proposals, and whether or not to confirm the administrators, where the deceased died intestate, it has to be satisfied, in accordance with the proviso to section 71(2) of the Act and Rule 40(4) of the Probate and Administration Rules, that the administrator has ascertained the persons beneficially entitled to a share in the estate and has ascertained the shares due to each of the beneficiaries ascertained. These provisions are in mandatory terms, and the courts have interpreted them to mean that the court ought not proceed to confirm a grant before being satisfied of the matters set out in those provisions. It was said in In the Matter of the Estate of Ephrahim Brian Kavai (Deceased) Kakamega HCSC No. 249 of 1992 (Waweru J) (unreported), that it would even be illegal to confirm a grant before being satisfied of those matters. See also In re Estate of Robert Mungai Gichinji (Deceased) [2016] eKLR (Musyoka J) and In re Estate of Benjamin Ng’ono Mbati (Deceased) [2019] eKLR (Musyoka J).

20. The proviso to section 71(2) and Rule 40(4) provides as follows:“71(2) … Provided that, in cases of intestacy, the grant of letters of administration shall not be confirmed until the court is satisfied as to the respective identities and shares of all persons beneficially entitled; and when confirmed the grant shall specify all such persons and their respective shares.”“40(4). Where the deceased has died wholly or partially intestate the applicant shall satisfy the court that the identification and shares of all persons beneficially entitled to the estate have been ascertained and determined.”

21. Before I can consider the confirmation application before me on its merits, I will have to consider whether the parties hereto have complied with the proviso to section 71(2) of the Act and Rule 40(4) of the Probate and Administration Rules, for where there is no satisfaction then I should not proceed to confirm the grant. What I should be satisfied with is whether the parties ascertained all the persons beneficially entitled to a share in the estate, and have allocated the persons ascertained their respective shares. The shares to be allocated are in the assets of the estate, and that would mean that I will need to be satisfied that the parties have properly ascertained the extent of the estate that they are proposing for distribution.

22. I will start with the persons beneficially entitled to a share in the estate. These are generally referred to as beneficiaries, that is to say the persons who ought to benefit from the assets of the estate. Beneficiaries are in several categories. The first would be the creditors of the estate, that is the persons or entities that the estate is indebted to. They could be persons or entities to which the estate or the deceased owed money, or who had transacted with the deceased prior to his death and he had either not paid them or their transactions were not completed, or something of that nature. It could also be persons who were buying land from the deceased and he had not transferred the land to them before he died. The second would be the survivors of the deceased within the meaning of sections 35, 36, 38 and 39 of the Law of Succession Act. That is to say the immediate relatives of the deceased who survived him, his spouse or spouses, children, parents, siblings and other relatives up to the sixth degree. The other category would be of individuals who fit the definition of “dependant,” within the meaning of section 29 of the Law of Succession Act, who have successfully moved the court under section 26, and the court has found them to be dependants, and has ordered that they be provided for from the estate of the deceased. Creditors have priority at confirmation or distribution, for what should be available for distribution should be the net intestate estate of the deceased, that is to say the assets of the estate that remain after settlement of debts and liabilities, according to sections 35(1)(b)(5), 36(1), 38, 39(1) and 83(d)(f) of the Law of Succession Act.

23. Sections 35(1)(b)(5), 36, 38, 39(1) and 83(d)(f) of the Law of Succession Act provide as follows:“35. Where intestate has left one surviving spouse and child or children

(1)Subject to the provisions of section 40, where an intestate has left one surviving spouse and a child or children, the surviving spouse shall be entitled to —(a)the personal and household effects of the deceased absolutely; and(b)a life interest in the whole residue of the net intestate estate: Provided that, if the surviving spouse is a widow, that interest shall determine upon her re-marriage to any person.(2)A surviving spouse shall, during the continuation of the life interest provided by subsection (1), have a power of appointment of all or any part of the capital of the net intestate estate by way of gift taking immediate effect among the surviving child or children, but that power shall not be exercised by will nor in such manner as to take effect at any future date.(4)Where an application is made under subsection (3), the court shall have power to award the applicant a share of the capital of the net intestate estate with or without variation of any appointment already made, and in determining whether an order shall be made, and if so, what order, shall have regard to—(a)the nature and amount of the deceased’s property;(b)any past, present or future capital or income from any source of the applicant and of the surviving spouse;(c)the existing and future means and needs of the applicant and the surviving spouse;(d)whether the deceased had made any advancement or other gift to the applicant during his lifetime or by will;(e)the conduct of the applicant in relation to the deceased and to the surviving spouse;(f)the situation and circumstances of any other person who has any vested or contingent interest in the net intestate estate of the deceased or as a beneficiary under his will (if any); and(g)the general circumstances of the case including the surviving spouse’s reasons for withholding or exercising the power in the manner in which he or she did, and any other application made under this section.(5)Subject to the provisions of sections 41 and 42 and subject to any appointment or award made under this section, the whole residue of the net intestate estate shall on the death, or, in the case of a widow, re-marriage, of the surviving spouse, devolve upon the surviving child, if there be only one, or be equally divided among the surviving children.”“36(1) Where the intestate has left one surviving spouse but no child or children, the surviving spouse shall be entitled out of the net intestate estate to—(a)the personal and household effects of the deceased absolutely; and(b)the first ten thousand shillings out of the residue of the net intestate estate, or twenty per centum thereof, whichever is the greater; and(c)a life interest in the whole of the remainder: Provided that if the surviving spouse is a widow, such life interest shall be determined upon her re-marriage to any person”“38 Where intestate has left a surviving child or children but no spouseWhere 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 shall be equally divided among the surviving children.”“39. Where intestate has left no surviving spouse or children(1)Where an intestate has left no surviving spouse or children, the net intestate estate shall devolve upon the kindred of the intestate in the following order of priority—(a)father; or if dead(b)mother; or if dead(c)brothers and sisters, and any child or children of deceased brothers and sisters, in equal shares; or if none(d)half-brothers and half-sisters and any child or children of deceased half-brothers and half-sisters, in equal shares; or if none(e)the relatives who are in the nearest degree of consanguinity up to and including the sixth degree, in equal shares.(2)Failing survival by any of the persons mentioned in paragraphs (a) to (e) of subsection (1), the net intestate estate shall devolve upon the State, and be paid into the Consolidated Fund.”“83. Duties of personal representativesPersonal representatives shall have the following duties-

(a) …

(b) … (c) …

(d) to ascertain and pay, out of the estate of the deceased, all his debts; (e) …

(f) subject to section 55, to distribute or to retain on trust (as the case may require) all assets remaining after payment of expenses and debts as provided by the preceding paragraphs of this section and the income therefrom, according to the respective beneficial interests therein under the will or on intestacy, as the case may be; (g) …” 24. Sections 26 and 29 of the Act state as follows:“26. Where a person dies after the commencement of this Act, and so far as succession to his property is governed by the provisions of this Act, then on the application by or on behalf of the dependant, the court may, if it is of the opinion that the disposition of the deceased’s estate effected by his will, or by gift in contemplation of death, or the law relating to intestacy, or the combination of the will, gift and law, is not such as to make reasonable provision for that dependant, order that such reasonable provision as the court thinks fit shall be made for that dependant out of the deceased’s net estate. 27…

28. ..

29. Meaning of dependantFor the purposes of this Part, "dependant" means-(a) the wife or wives, or former wife or wives, and the children of the deceased whether or not maintained by the deceased immediately prior to his death;

(b) such of the deceased's parents, step-parents, grandparents, grandchildren, step-children, children whom the deceased had taken into his family as his own, brothers and sisters, and half-brothers and half-sisters, as were being maintained by the deceased immediately prior to his death; and (c) where the deceased was a woman, her husband if he was being maintained by her immediately prior to the date of her death.”

(a) the wife or wives, or former wife or wives, and the children of the deceased whether or not maintained by the deceased immediately prior to his death;

(b) such of the deceased's parents, step-parents, grandparents, grandchildren, step-children, children whom the deceased had taken into his family as his own, brothers and sisters, and half-brothers and half-sisters, as were being maintained by the deceased immediately prior to his death; and

(c) where the deceased was a woman, her husband if he was being maintained by her immediately prior to the date of her death.”

25. The administrator has not listed any creditors in the petition and the confirmation application, but some have been mentioned in the protests. From the oral hearings it transpired that the alleged creditors did not deal with the deceased, but bought land from his sons after his demise. The alleged creditors are not liabilities or creditors of the estate for they did deal with the deceased. The estate is not indebted to them. They are creditors of the persons who sold the land to them, and not the estate. It should be pointed out that in intestacy, the estate of the deceased vests only in the administrators, by virtue of section 79 of the Law of Succession Act. Secondly, the grant made to the administrators becomes effective from the date of its making, by virtue of section 80(2) of the Law of Succession Act. Under section 82(b)(ii) of the Law of Succession Act, immovable assets of the estate cannot be sold before the grant is confirmed. Under section 45 of the Law of Succession Act, it would be wrong to handle the estate of the deceased before a grant is made, including purporting to sell the assets. Secondly, it is even a criminal offence to do so. It is generally referred to as intermeddling with the estate. A purported sale of property in circumstances amounting to intermeddling means that the sale is tainted with criminality and the purported sale cannot possibly be of any validity.

26. The provisions in sections 45, 79, 80(2) and 82(b)(ii) of the Law of Succession Act provide as follows:“(1)1) Except so far as expressly authorized by this Act, or by any other written law, or by a grant of representation under this Act, no person shall, for any purpose, take possession or dispose of, or otherwise intermeddle with, any free property of a deceased person.(2)Any person who contravenes the provisions of this section shall—(a)be guilty of an offence and liable to a fine not exceeding ten thousand shillings or to a term of imprisonment not exceeding one year or to both such fine and imprisonment; and(b)be answerable to the rightful executor or administrator, to the extent of the assets with which he has intermeddled after deducting any payments made in the due course of administration.”“79. The executor or administrator to whom representation has been granted shall be the personal representative of the deceased for all purposes of that grant, and subject to any limitation imposed by the grant, all the property of the deceased shall vest in him as personal representative.”“80. When grant takes effect(1) …

(2) A grant of letters of administration, with or without the will annexed, shall take effect only as from the date of such grant.”

(1) …

(2) A grant of letters of administration, with or without the will annexed, shall take effect only as from the date of such grant.”

“82. Powers of personal representativesPersonal representatives shall, subject only to any limitation imposed by their grant, have the following powers-(a) …

(b) to sell or otherwise turn to account, so far as seems necessary or desirable in the execution of their duties, all or any part of the assets vested in them, as they think best: Provided that-(i) …

(ii) no immovable property shall be sold before confirmation of the grant;

(c) …”

(a) …

(b) to sell or otherwise turn to account, so far as seems necessary or desirable in the execution of their duties, all or any part of the assets vested in them, as they think best:

(i) …

(ii) no immovable property shall be sold before confirmation of the grant;

(c) …”

27. The evidence on record is quite clear that the persons who sold the assets did so after the deceased had died. They had not been appointed administrators of the estate, and the grant had not been confirmed. The property of the deceased did not vest in them. They had no power to sell it. They had nothing to sell, and whoever transacted with them acquired nothing from them. The estate does not owe the purported buyers anything. The purported buyers can only look up to whoever sold land to them, and they can only access what they purported to buy from the sellers after the grant herein has been confirmed, and the assets devolved on the sellers. They have no claim whatsoever against the estate. They are intermeddlers, and whatever they did, with whoever sold the land to them, was criminal activity, which could not be a basis for any sort of validity.

28. On the matter of survivors, I am told that the deceased died a polygamist, having married 2 wives during his lifetime. Out of the 2 wives he had children, 5 sons, 3 from the 1st house and 2 from the 2nd house. It was not disclosed whether the deceased had daughters by any of his 2 wives, and an impression was created that the deceased did not have daughters. This is something that ought to be cleared up before the estate is distributed. I say so because section 51(2)(g) of the Law of Succession Act requires disclosure of all the children of the deceased at the point of petitioning for administration of the estate. Sections 35(1)(b)(5) and 38 of the Act provide for the sharing of the estate amongst the children of the deceased. The Act does not discriminate between the male and female children of the deceased. Indeed, the definition of “child” and “children” in the interpretation section, section 3, does not classify or categorize children into male or female, or sons or daughters. It merely talks about children, and not their gender. That would mean that the Act treats the children of the deceased equally. Sons and daughters are to be treated equally, for that is what the Law of Succession Act envisages. That position is bolstered by Article 27 of the Constitution, which decrees that men and women are to be treated equally in all spheres of life, and it enjoins the State, inclusive of the courts, not to discriminate against them in any way, and to take measures to eliminate all forms of gender discrimination. The statutory provisions in the Act and the constitutional provisions are further supported by the United Nations Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), to which Kenya is signatory. Article 2(5)(6) of the Constitution makes international law part of Kenyan law. That would mean that Kenya is obliged to adhere to international standards in the way it handles women. Discrimination of women, in distribution of estates of their father, is against these universal standards, and the court ought not condone it, for doing so would violate the provisions of the Constitution, CEDAW and the Law of Succession Act.

29. Section 51(2)(g) of the Law of Succession Act states as follows:“An application shall include information as to – in cases of total or partial intestacy, the names and addresses of all surviving spouse, children, parents, brothers and sisters of the deceased, and of the children of any child of his or hers then deceased.”

30. Articles 2(5)(6) and 27 of the Constitution state as follows:“2(5) The general rules of international law shall form part of the law of Kenya.(6)Any treaty or convention ratified by Kenya shall form part of the law of Kenya under this Constitution.”“27 Equality and freedom from discrimination27(1) Every person is equal before the law and has the right to equal protection and equal benefit of the law.(2)Equality includes the full and equal enjoyment of all rights and fundamental freedoms;(3)Women and men have the right to equal treatment, including the right to equal opportunities in political, economic, cultural and social spheres.(4)The State shall not discriminate directly or indirectly against any person on any ground, including race, sex, pregnancy, marital status, health status, ethnic or social origin, colour, age, disability, religion, conscience, belief, culture, dress, language or birth.(5)A person shall not discriminate directly or indirectly against another person on any of the grounds specified or contemplated in clause (4).(6)To give full effect to the realization of the rights guaranteed under this Article, the State shall take legislative and other measures, including affirmative action programmes and policies designed to redress any disadvantage suffered by individuals or groups because of past discrimination.(7)…(8)…”

31. The disclosure of all the children of the deceased, at the point of seeking appointment as administrators, and at the point of seeking confirmation of grant, is a mandatory requirement of the Law of Succession Act and the Constitution, and of international law. I hope the administrator has not concealed the daughters of the deceased, and, if he has, then it would mean that he has not complied with what is required of him by the proviso to section 71(2) and Rule 40(4), and he has not fully ascertained the persons beneficially entitled to a share in the estate of the deceased. Going by In the Matter of the Estate of Ephrahim Brian Kavai (Deceased) Kakamega HCSC No. 249 of 1992 (Waweru J) (unreported), it would be illegal for me to go on to confirm the grant before there is full compliance.

32. Related to that is the fact that the deceased died a polygamist. The estate of a polygamist is to be handled in terms of section 40 of the Law of Succession Act. The assets are shared out according to the houses of the deceased, considering the number of children in each house, and treating any surviving spouse as an additional unit. According to section 40(1), the assets are shared out amongst the houses, according to the number of children in each house, after which section 40(2) becomes applicable, according to which the assets allocated to each house are shared in terms of sections 35, 36 and 38, depending on the composition of each house. To ensure distribution in accordance with section 40, the administrators ought to make a full disclosure of all the survivors of the deceased, by disclosing all the surviving spouses, their children and grandchildren, in case some of the children have died and have been survived by children, all grouped or categorized according to the houses to which they belong. That would assist the court in distributing the estate strictly in accordance with the requirements of section 40.

33. Section 40 provides as follows:“40. Where intestate was polygamous

(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. ”

34. The fact that the deceased died a polygamist was not disclosed in the petition for representation, nor in the application for confirmation of grant. The disclosure was made at the oral hearings. But the disclosures were not complete, for the daughters of the deceased were not disclosed, for it would be inconceivable that the deceased could not have not had daughters from his 2 wives. Secondly, 3 of the sons are dead. There was no full disclosure of the children of the 3 sons, inclusive of their daughters. The distribution of the estate proposed both, in the application for confirmation of grant and in the protests, was not in conformity with section 40 of the Act, as it was not in accordance with the houses as envisaged in section 40 of the Act.

35. The proviso to section 71(2) and Rule 40(4) require that the administrators to ascertain the shares of the persons beneficially entitled. As the persons beneficially entitled have not been properly ascertained, it would follow that the shares due to them have also not been ascertained. That would mean that that has also not been complied with.

36. As stated above, the ascertainment of beneficiaries and their shares presuppose that the assets that make up the estate have been ascertained. There is no dispute that the only asset available for distribution is Kakamega/Chemuche/794.

37. The parties have presented a case that the deceased had distributed his land inter vivos, that is during his lifetime. Section 42 of the Law of Succession Act requires that where such lifetime gifts were made to any of the persons beneficially entitled to shares in the estate, such gifts ought to be disclosed, so that the distribution is seen to be fair and equitable. It is called bringing property to the hotchpotch. Assets cannot be brought into the hotchpotch unless there is disclosure of who benefitted from such gifts. However, it would appear that there were no lifetime gifts in this case. The parties only talked of the deceased showing them where to farm and settle. See In re Estate of Godana Songoro Guyo (Deceased) [2020] eKLR (Nyakundi, J), In re Estate of Gedion Manthi Nzioka (Deceased) [2015] eKLR (Nyamweya, J) and In re Estate of Phylis Muthoni M’Inoti (Deceased) [2019] eKLR (Gikonyo, J). The deceased did not obtain the consent of the Land Control Board to subdivide the land, to create subtitles, which he could then have distributed to the children. See In re Estate of Nyachieo Osindi (Deceased) [2019] eKLR (Ougo, J). There was a subdivision of sorts which created South Kabras/Chemuche/1127, 1128 and 1129, before they were collapsed back into Kakamega/Chemuche/794 in these proceedings. The said subdivisions were not done by the deceased. It happened after his death. The same was not authorized in these succession cause, or in any other succession proceedings to the estate herein, and, therefore, the process of the creation of those titles was illegal, and violated sections 45, 79 and 82 of the Law of Succession Act. As there was no inter vivos distribution, Kakamega/Chemuche/794 shall be distributed strictly in accordance with the Law of Succession Act, and in particular section 40 thereof.

38. Section 42 of the Law of Succession Act provides as follows:“Where (a) an intestate has during his lifetime or by Will, paid, given or for the benefit of a child, grandchild or house or (b) property has been appointed or awarded to any child or grandchild under the provisions of section 26 or section 35, that property shall be taken into account in determining the share of the net intestate finally accruing to the child, grandchild or house”

39. Some of the children of the deceased are said to be themselves dead, but are survived by children. The law, at section 41 of the Act states that the share due to the dead children of the children is not lost or extinguished, where they are themselves survived by children of their own. Instead, their children step into their shoes, in what is known as substitution or representation. They take the share that should have gone to their own parents. If they are more than one, the said children share the property equally. The point is that where any of the children of the deceased have died, but are survived by children of their own, then the administrators ought to disclose such children, who are the grandchildren of the deceased. All must be disclosed, both male and female, whether married or single.

40. Section 41 of the Law of Succession states:“…for or any of the issue of any child of the intestate predecease him and who attain that age or so marry, in which case the issue shall take through degrees, in equal shares, the share which their parent would have taken had he not predeceased the intestate.”

41. Where any of the persons listed and disclosed as beneficially entitled does not wish to take up their share, then the way out is that such persons file documents to show that they are not interested in taking up their share. The law does not force beneficiaries to take up shares in an estate if they are not interested or keen on taking them up. However, that decision cannot be made for them by the administrators. The beneficiaries must make those decisions themselves, either by way of renouncing those shares or waiving their rights to them or varying them. Variation would take the form of the beneficiaries indicating that they are surrendering their share to some other beneficiary. If any of the married daughters or granddaughters are not interested in taking up their shares, the answer would not lie with not disclosing such daughters, but in disclosing them, and then getting them to file documents as proof that they have renounced or waived or varied their rights, or getting them to attend court on, an appointed date, where they can state to the court their position. It should be understood, by dint of Christine Wangari Gichigi vs. Elizabeth Wanjira Evans & 11 others [2014] eKLR (Nambuye, Ouko & Mohammed JJA) and In re Estate of Joyce Kanjiru Njiru (Deceased) [2017] eKLR (Gitari J), that the mere fact that beneficiaries or survivors have not been active in succession litigation does not mean that they have forfeited their shares, the court should go ahead and provide for them, their inactive role in the proceedings notwithstanding. That is the position, given that the law has granted to them a right or entitlement to those shares, and it is only them who can expressly forgo those rights or entitlements. The fact of their non-participation is not a disentitling factor.

42. I believe I have said enough, to demonstrate that the summons for confirmation of grant is not ripe for determination, for the reasons that I have discussed above, especially that there has been no compliance with the proviso to section 71(2) of the Law of Succession Act and Rule 40(4) of the Probate and Administration Rules. Consequently, I shall make the following orders:a.That I hereby postpone determination of the summons for confirmation herein dated 20th March 2013, in terms of section 71(2)(d) of the Law of Succession Act, to enable the administrator comply with the directions that follow here below;b.That I direct the administrator to file further affidavits, to disclose all the children of the deceased, including all his daughters, grouping them according to the 2 houses of the deceased;c.That where any of the children of the deceased, whether male or female, are dead, and had children of their own, let those children, being grandchildren of the deceased, be disclosed;d.That should any of the children of the deceased, whether male or female, be not interested in taking up their shares or entitlement in the estate, let them file documents to that effect or otherwise attend court, on a date to be appointed, to state their position in the matter;e.That the administrator has forty-five (45) days to comply;f.That I shall only confirm the grant herein after the administrator fully complies with the directions above;g.That the matter shall be mentioned on a date to be allocated at the delivery of this judgment for compliance;h.That each party shall bear their own costs; andi.That any party aggrieved has twenty-eight (28) days leave to file appeal at the Court of Appeal.

43. It is so ordered.

DELIVERED, DATED AND SIGNED IN OPEN COURT AT KAKAMEGA ON THIS 4th DAY OF November 2022WM MUSYOKAJUDGEErick Zalo, Court AssistantMr. Manyoni, Instructed by Momanyi Manyoni & Company, Advocates for the administrator.Mrs. Muleshe, instructed by Phoebe Munihu Muleshe & Company, Advocates for the protestors.4