[2021] KEHC 4385 (KLR)

Source-derived case information.

Citation: [2021] KEHC 4385 (KLR)
Parties: Applicant: Edward Simiyu Khisa; Applicant: Chrisistim Wekesa Khisa; Applicant: Catherine Nasimiyu Khisa; Applicant: Gladys Nakhumicha Khisa
Court: High Court
Court Station: High Court at Bungoma
Jurisdiction: Kenya
Case Number: Succession Cause 75 of 2009
Procedural Posture: Succession Cause / Judgment
Outcome: Certificate of confirmation of grant to issue in terms of the court's distribution; each party to bear their own costs.
Judges: SN Riechi
Legal Topics: Intestate Succession, Distribution of Estate, Confirmation of Grant, Dependants Rights
Source Language: en

Family and Children Intestate Succession Distribution of Estate Confirmation of Grant Dependants Rights

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Summary, issues, holding and outcome

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Downloadable case file Legal principles 3 Authorities cited 1 Party arguments 2

Parties

Edward Simiyu Khisa

Applicant

Chrisistim Wekesa Khisa

Applicant

Catherine Nasimiyu Khisa

Applicant

Gladys Nakhumicha Khisa

Applicant

Procedural Posture

Succession Cause / Judgment

Legal Issues

1 Whether the proposed modes of distribution of the deceased's estate are equitable and compliant with the Law of Succession Act.
2 Whether all beneficiaries and dependants have been adequately provided for in the distribution.
3 Whether properties not registered in the deceased's name form part of the estate for distribution.

Ratio Decidendi

The court found that both proposed modes of distribution failed to achieve consensus among all beneficiaries. The court emphasized that distribution must be equitable and include all beneficiaries, as required by Sections 35-37 of the Law of Succession Act. Properties not registered in the deceased's name were excluded from the estate, except where beneficial ownership could be established. The court considered the rival proposals, the interests of surviving dependants, and the need to provide for the estates of deceased beneficiaries. Ultimately, the court crafted its own mode of distribution, allocating specific parcels and shares to named beneficiaries and directing that shares and...

Court Disposition

Certificate of confirmation of grant to issue in terms of the court's distribution; each party to bear their own costs.

Orders

Estate distributed as per the court's detailed allocation among beneficiaries.
Properties not registered in the deceased's name excluded from distribution.

Full Case Text

Judgment text and source record

252 paragraphs

REPUBLIC OF KENYA.

IN THE HIGH COURT OF KENYA AT BUNGOMA.

SUCCESSION CAUSE NO. 75 OF 2009.

IN THE MATTER OF THE ESTATE OF SHADRACK KHISA NALIAKHO (DECEASED)

FRANK KHISA NALIAKHO...................................................1ST PETITIONER

CHRISISTIM WEKESA KHISA.............................................2ND PETITIONER

CATHERINE NASIMIYU KHISA..........................................3RD PETITIONER

GLADYS NAKHUMICHA KHISA.........................................4TH PETITIONER

J U D G E M E N T

Shadrack Apollo Naliakho died on 31. 7.2008. He was survived by Widow Susan Khisa, 6 Sons, and 5 Daughters. He died intestate. His estate comprised of Land, Buildings, Shares and Money in Bank Accounts. On 27. 4.2009, his widow, Susan Khisa and Sons Frank Khisa and Chrispinus Nyongesa filed this Succession Cause. They applied for grant of letters of administration intestate and the grant was issued jointly to; (1) Susan Khisa (2) Frank Khisa (3) Chrisistim W. Khisa. Susan Khisa, the 1st Petitioner passed on on 22. 5.2014 before the grant could be confirmed.

On 2. 7.2015 on application, Catherine Nasimiyu Khisa and Gladys Nakhumicha Khisa joined Frank Khisa and Chrisistim Wekesa as the 3rd and 4th Petitioners. Frank Khisa died before confirmation and was substituted by Edward Simiyu Khisa. The Petitioners now are;

(1) Edward Simiyu Khisa (1st Petitioner)

(2)Chrisistim Wekesa Khisa (2nd Petitioner)

(3)Catherine Nasimiyu Khisa (3rd Petitioner)

(4) Gladys Nakhumicha Khisa (4th Petitioner)

The deceased at time of death was survived by the following dependants;

1. Susan Naliaka Khisa (Widow) deceased

2. Maurice Khisa (Son) deceased

3. Fredrick Naliakho Khisa (Son) deceased

4. Rose Khisa (Daughter) deceased

5. Frank Khisa Naliakho (Son) deceased

6. Catherine Nasimiyu Khisa (Daughter)

7. Gladys Nakhumicha Khisa (Daughter)

8. Lilian Matanda Khisa (Daughter)

9. Chrisistim Wekesa Khisa (Son)

10. Chrispinus Nyongesa Khisa (Son)

11. Stella Nafula Khisa (Daughter)

12. Edward Simiyu Khisa (Son)

He also left the following Assets;

PROPERTIES:

(a) Those registered in the deceased’s name

NO. TITLE NUMBER LOCATION NAME

1. East Bukusu/South Kanduyi/30 Near Kanduyi Primary School

2. East Bukusu/South Kanduyi/33 Ten Star

3. West Bukusu/North Miyanga/272 Miyanga

4. East Bukusu/North Kanduyi/14 Namuyemba (Home)

5. East Bukusu/South Kanduyi/461 Mufutu

6. East Bukusu/North Kanduyi/3045 Khisa Estate

7. Bungoma/Township/282 Namachanja (a)

8. Bungoma/Township/283 Namachanja (b)

9. East Bukusu/South Kanduyi/6033 Near Kanduyi Inn

(b) Those not registered in the deceased’s name

NO. TITLE NUMBER LOCATION NAME

1. East Bukusu/South Kanduyi/981 Within Bungoma Central Business District

2. Rainbow House Kanduyi Malaba Stage

3. Bungoma/Township/221 Municipal Market Bungoma (Safaricom House)

4. Shops at Bisunu Bisunu Shopping Centre

5. South Malakisi/Kilisiru/[….] Ancestral at Bisunu village

NO. TITLE NUMBER NUMBER OF SHARES

1. Standard Chartered Bank Account No.[….] 155

2. Kenya Commercial Bank Account No.[….] 8000

3. Safaricom Limited Account No.[….] 900

4. National Bank Account No.(unknown Account) Under - Unclaimed Assets Authority

The 4 Petitioners were tasked with the duty of filing a mode of distribution of the estate to all the beneficiaries. They were however unable to agree on a common mode of distribution. The court directed that they file their respective proposals on mode of distribution.

The 1st and 2nd Petitioners filed their mode of distribution which is supported by the following beneficiaries who have appended their signature thereto.

1. CHRISPINUS NYONGESA KHISA SIGNED

2. CHRISISTIM WEKESA KHISA SIGNED

3. JOSEPHINE NEKESA WATTI SIGNED

4. FLETCHER VUGUZA KHISA SIGNED

5. ROSE ANYOSO NDEGE SIGNED

6. LYDIA NYABOKE MIYOGO SIGNED

7. EDWARD SIMIYU KHISA SIGNED

Their proposal is as follows;

EAST BUKUSU/SOUTH KANDUYI/30

ROSE ANYOSO NDEGE-DAUGHTER IN LAW

EAST BUKUSU/SOUTH KANDUYI/33

LYDIA NYABOKE MIYOGO & JOSEPHINE NEKESA WATTI-4. 5 ACRES

CHRISPINUS NYONGESA KHISA-4. 5 ACRES

EAST BUKUSU/NORTH MIYANGA/272

LYDIA NYABOKE MIYOGO & JOSEPHINE NEKESA WATTI-2. 5 ACRES

CHRISPINUS NYONGESA KHISA-2. 5 ACRES

EAST BUKUSU/NORTH KANDUYI/14

UPPER PORTION

FLETCHER VUGUZA KHISA(Daughter in law)- 3 Acres

CHRISISTIM WEKESA KHISA-4 Acres

EDWARD SIMIYU KHISA-4 Acres

EDWARD SIMIYU KHISA, CHRISISTIM WEKESA KHISA, CATHERINE NASIMIYU KHISA & GLADYS NAKHUMICHA KHISA-1 Acre

LOWER PROTION

FLETCHER VUGUZA KHISA(Daughter in law)- 4 Acres

CHRISISTIM WEKESA KHISA-3 Acres

EDWARD SIMIYU KHISA- 2. 3 Acres

EAST BUKUSU/SOUTH KANDUYI/981-In the name of Susan Naliaka Khisa

CATHERINE NASIMIYU KHISA, GLADYS NAKHUMICHA KHISA, LILIAN MATANDA KHISA & STELLA NAFULA KHISA

EAST BUKUSU/SOUTH KANDUYI/461

KHISA HOLDING LIMITED

EAST BUKUSU/NORTH KANDUYI/3045

LEWIS WANG’ASA WANJALA-Grandson

BUNGOMA/TOWNSHIP/282

CATHERINE NASIMIYU KHISA & LILIAN MATANDA KHISA

BUNGOMA /TOWNSHIP/ 283

GLADYS NAKHUMICHA KHISA & STELLA NAFULA KHISA

EAST BUKUSU/SOUTH KANDUYI/6033

STELLA NAFULA KHISA

STANDARD CHARTERED BANK SHARES ACCOUNT NO. 27573

LILIAN MATANDA KHISA

KENYA COMMERCIAL BANK SHARES ACC. NO. M0047451

CHRISPINUS NYONGESA KHISA

SAFARICOM LTD. SHARES ACC. NO. 3779854

EDWARD SIMIYU KHISA

The 3rd and 4th Petitioners filed their proposal dated 30. 6.2019 and supported by the following beneficiaries who have appended signatures;

1. CATHERINE NASIMIYU KHISA SIGNED

2. LILIAN NANJALA KHISA SIGNED

3. STELLA NAFULA KHISA SIGNED

4. LEWIS WANG’ASA WANJALA SIGNED

Their proposal is as hereunder;

DESCRIPTION OF PROPERTY NAME SHARE OF

A LR NO. E. BUKUSU/S.KANDUYI/30

(Near Kanduyi Primary School) GLADYS NAKHUMICHA KHISA

STELLA NAFULA 2 Acres

2 Acres

ESTATE OF FREDRICK KHISA 1 Acre

LILIAN NANJALA KHISA 1 Acre

B LR. NO. W. BUKUSU/N. MIYANGA/272 CHRISPINUS NYONGESA 1½ Acres

ESTATE OF FRANK KHISA 1½ Acres

LEWIS WANG’ASA WANJALA 1 Acre

ESTATE OF FREDRICK KHISA 1 Acre

C LR. NO. E. BUKUSU/N. KANDUYI/14 (NAMUYEMBA HOME) ESTATE OF MAURICE KHISA 2 Acres on dry land

3 Acres near the river

CHRISISTIM KHISA 2 Acres on dry land

3 Acres near the river

CATHERINE NASIMIYU KHISA 1 Acre on dry land

GLADYS NAKHUMICHA KHISA 2 Acres on dry land

LILIAN NANJALA KHISA 2 Acres on dry land

1 Acre near the river

STELLA NAFULA 1 Acres near the river

EDWARD SIMIYU 2 Acres on dry land

3 Acres near the river

LEWIS WANG’ASA WANJALA 2 Acres on dry land

1 Acre near the river

ESTATE OF FREDRICK KHISA 1½ Acres near the river

(Family homestead to be held in trust By the Administrators)

D BUNGOMA TOWNSHIP 282 &

283 (NAMACHANJA ESTATE) GLADY NAKHUMICHA KHISA

CATHERINE NASIMIYU KHISA WHOLE

LILIAN NANJALA KHISA

STELLA NAFULA

LEWIS WANG’ASA WANJALA

E E. BUKUSU/S. KANDUYI/33 ESTATE OF GRANK KHISA 3 Acres

TENSTAR AREA) CHRISPINUS NYONGESA KHISA 3 Acres

CATHERINE NASIMIYU KHISA 3 Acres

F E. BUKUSU/N. KANDUYI/3045 LEWIS WANG’ASA WANJALA WHOLE

(KHISA ESTATE LILIAN NANJALA KHISA

H E. BUKUSU/S. KANDUYI/461 FRANK KHISA 50 feet by 100 feet

(MUFUTU ESTATE) EDWARD SIMIYU 50 feet by 100 feet

CHRISISTIM KHISA 50 feet by 100 feet

CHRISPINUS NYONGESA 50 feet by 100 feet

ESTATE OF FREDRICK KHISA 50 feet by 100 feet

ESTATE OF MAURICE KHISA 50 feet by 100 feet

CATHERINE NASIMIYU KHISA 50 feet by 100 feet

GLADYS NAKHUMICHA KHISA 50 feet by 100 feet

LILIAN NANJALA KHISA 50 feet by 100 feet

STELLA NAFULA 50 feet by 100 feet

LEWIS WANG’ASA WANJALA 50 feet by 100 feet

I BUNGOMA 221 (SAFARI BAR

BUILDING) CHRISISTIM KHISA

EDWARD SIMIYU

CHRISPINUS NYONGESA

ESTATE OF FRANK KHISA

ESTATE OF MAURICE KHISA WHOLE

ESTATE OF FREDRICK KHISA

J BISUNU MARKET PLOT CHRISISTIM KHISA

CHRISPINUS NYONGESA

EDWARD SIMIYU WHOLE

ESTATE OF FRANK KHISA

ESTATE OF MAURICE KHISA

ESTATE OF FREDRICK KHISA

K RAINBOW BUILDING PLOT CATHERINE NASIMIYU KHISA

LILIAN NANJALA KHISA

STELLA NAFULA WHOLE

GLADYS NAKHUMICHA KHISA

L KENYA COMMERCIAL BANK CHRISPINUS NYONGESA

(SHARES (8000) A/C. NO.M00477451 EDWARD SIMIYU

ESTATE OF MAURICE KHISA

ESTATE OF FRANK KHISA

CHRISISTIM KHISA WHOLE

ESTATE OF FREDRICK KHISA

M STANDARD CHARTERED SHARES (1155) A/C NO. 27573 CATHERINE NASIMIYU KHISA

GLADYS NAKHUMICHA KHISA

STELLA NAFULA WHOLE

LILIAN NANJALA KHISA

LEWIS WANG’A SA WANJALA

N SAFARICOM SHARES (900) A/C. NO.3779854 CATHERINE NASIMIYU KHISA

GLADYS NAKHUMICHA KHISA

STELLA NAFULA WHOLE

LILIAN NANJALA KHISA

LEWIS WANG’ASA WANJALA

O LR. NO. E. BUKUSU/SOUTH KANDUYI/ 6033 STELLA NAFULA 0. 02 Ha sold to STELLA NAFULA

Before the court embarks on distribution of the estate, the following facts commend themselves; firstly, East Bukusu/South Kanduyi/981 is registered in the name of Susan Naliakho Khisa, Bungoma Township/221 is registered in the name of Agnes Naliakho and Malakisi/Kulisuru/452 in the names of Dismas Mulongo, Shadrack Khisa, John Tulula, Agrey Wabomba and Joseph Wanambisi. These properties are therefore not available for distribution in these proceedings as they do not form part of the deceased’s estate.

As regards Malakisi/Kulisuru/452, it is a finding of this court that the deceased herein owned a portion of an undivided portion of land. None of the parties has indicated what the share of the deceased in that portion of land is. As such the court is unable to make a conclusive determination on the same.

It is also clear that some of the deceased’s dependants also died and are survived by their widows and children who are now the deceased’s grandchildren and the parties have conceded provisions for them.

The court has considered both proposed modes of distribution. Any distribution of the estate must include all the beneficiaries and be equal or at least equitable in form as mandated by Section 35-37 of the Law of Succession Act Cap 160.

I have considered the rival proposals and the Court’s distribution of the estate of the late Shadrack Appollo Khisa is as hereunder.

1. EAST BUKUSU/SOUTH KANDUYI/30

Gladys Nakhumicha Khisa 2 Acres

Stella Nafula 2 Acres

Rose Anyoso Ndege 2. 5 Acres.

2. EAST BUKUSU/SOUTH KANDUYI/33

Lydia Nyaboke Miyogo 2. 25 Acres

Josephine Nekesa Watti 2. 25 Acres

Chrispinus Nyongesa Khisa 4. 5 Acres

3. EAST BUKUSU/NORTH MIYANGA/272

Chrispinus Nyongesa 1. 5 Acres

Lydia Nyaboke Miyogo 0. 75 Acres

Josephine Nekesa Watti 0. 75 Acres

Rose Anyoso Ndege 1 Acre

Lewis Wang’asa Wanjala 1 Acre

4. EAST BUKUSU/NORTH KANDUYI/14

Fletcher Vuguza Khisa 5 Acres

Chrisistim Wekesa Khisa 5 Acres

Edward Simiyu Khisa 5 Acres

Catherine Nasimiyu Khisa 1 Acre

Gladys Nakhumicha Khisa 2 Acres

Lilian Nanjala Khisa 3 Acres

Stella Nafula 1 Acre

Lewis Wang’asa Wanjala 3 Acres

Rose Anyoso Ndege 1. 5 Acres.

The administrators to be registered jointly in the remainder portion.

5. EAST BUKUSU/SOUTH KANDUYI/461

Lydia Nyaboke Miyogo & Josephine Nekesa 50 X 100 Feet

Edward Simiyu 50 By 100 Feet

Chrisistim Khisa 50 X 100 Feet

Chrispinus Nyongesa 50 X 100 Feet

Rose Anyoso Ndege 50 X 100 Feet

Fletcher Vuguza Khisa 50 X 100 Feet

Catherine Nasimiyu Khisa 50 X 100 Feet

Gladys Nakhumicha Khisa 50 X 100 Feet

Lilian Nanjala Khisa 50 X100 Feet

Stella Nafula Lewis Wang’asa Wanjala 50 X 100 Feet

6. EAST BUKUSU/NORTH KANDUYI/3045

Lewis Wang’asa Wanjala

7. BUNGOMA/TOWNSHIP/282

Jointly to:

Gladys Nakhumicha Khisa

Lilian Nanjala Khisa

8. BUNGOMA /TOWNSHIP/ 283

Jointly to:

Catherine Nasimiyu Khisa

Stella Nafula Khisa

9. EAST BUKUSU/SOUTH KANDUYI/6033

Stella Nafula Khisa

10. STANDARD CHARTERED BANK SHARES ACCOUNT NO. 27573

To be shared equally between all the beneficiaries

11. KENYA COMMERCIAL BANK SHARES ACC. NO. M0047451

To be shared equally among all the beneficiaries.

12. SAFARICOM LTD. SHARES ACC. NO. 3779854

To be shared equally among all the beneficiaries.

Consequently, a certificate of confirmation of grant to issue in those terms.

This being a family matter each party to bear their own costs.

Dated, signed and delivered at Bungoma this 30th day July, 2021.

S N RIECHI

JUDGE

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