[2023] KEHC 25393 (KLR)

In re Estate of Shem Boiyo Chemai (Deceased) (Succession Cause E031 of 2021) [2023] KEHC 25393 (KLR) (16 November 2023) (Judgment)

Neutral citation: [2023] KEHC 25393 (KLR)

Republic of Kenya

In the High Court at Kitale

Succession Cause E031 of 2021

AC Mrima, J

November 16, 2023

IN THE MATTER OF THE ESTATE OF SHEM BOIYO CHEMAI (DECEASED)

Between

Collins Shem Chemai

Applicant

and

Emma Cherotich Chemai

Respondent

Judgment

Background 1. The Application, subject of this Ruling, is the Summons for Confirmation of Grant dated 4th April 2022. It was lodged by Collins Shem Chemai. It is supported by his Affidavit and Supplementary Affidavit deposed to on 4th April 2022 and 7th June 2022 respectively.

2. The Application seeks the following Order;1. The grant of letters of Administration Intestate granted to Collins Shem Chema and Emma Cherotich Chemai of P.O Box 943-30200 Kitale on 16/09/2021 in this cause be confirmed and the estate of the deceased distributed as proposed in the Supporting Affidavit.

3. As can be gleaned from the Supporting Affidavit, the Applicant deposed that he is one of the Administrators of Shem Boiyo Chemai (hereinafter ‘The Deceased’).

4. It is his case that, so far, the deceased’s known asset is Plot No 0030331, Suwerwa Settlement Scheme measuring 9. 799994Ha (hereinafter ‘The Deceased’s Estate’)

5. He deposed that out of the Deceased’s Estate, 21 Acres is intended to be distributed to the deceased’s beneficiaries in the following manner;a.Ken Chengek Chemai son 4. 2 acresb.Collins Shem Chemai son 4. 2 Acresc.Sam Shem Chemai son 4. 2 Acresd.Emma Cherotich Chemai Daughter 4. 2 Acrese.Betty Cheburet Chemai Daughter 4. 2 Acres

6. It was his case further that 3 acres, which comprise the deceased homestead and the quarry, be held in Trust and registered jointly in his name that that of Emma Cherotich Chemai, the Respondent herein.

7. He claimed further that the estate of the deceased has a loan of Kshs 441,000/- which he had managed to pay Kshs 64,000/- by year 2021.

8. He deposed further that 15 Acres out of the Estate of the deceased be leased for purposes of settling Settlement Fund Trustee Loan before the shares of the beneficiaries are subdivided.

9. It was case further that two of the beneficiaries of the estate of the deceased namely, Ken Chengek Chemai and Betty Cheburet are mentally challenged and their share of the estate shall be held in trust by him (Collins Chemai) since he is the one who has been taking care of them since the deceased passed on.

10. In the supplementary Affidavit, the Applicant attached medical documents and survey report to demonstrate the metal health status of his sibling Betty Cheburet Chemai and the nature of the land respectively.

11. The Applicant filed written submissions dated 2nd February 2023. In submitting on the fact that he would manage the share of the two mentally ill beneficiaries, it was his case that he has no intentions of disinheriting the Respondent.

12. It was submitted further that since Betty Chemai is mentally ill, she is incapable of making sound decisions and therefore she cannot choose what parcel of land she wants.

13. The Applicant further submitted that he had been forced to lease 15 acres of land out of the said estate for purposes of offsetting the loan.

14. In the end, he urged the Court to confirm the grant of Letters of Administration Intestate in terms of the proposed mode of distribution.

The Respondent’s Case 15. In response to the Application, Emma Cherotich Chemai filed the Affidavit dated 8th June 2022.

16. She deposed that the Medical Report for Betty Chemai is false since she had never appeared before any Doctor or clinical Officer. It was her case that the Applicant seeks to use the Medical Report as a means to have the share of Betty Chemai and Ken Chemai placed under him in order to disinherit them

17. As regards the Surveyor’s Report, it was her case that they have no problem if the quarry/murram goes to any person and that Better Chemai is ready and willing to have the said area which is next to the homestead form part of her share of the estate.

18. She deposed that the that Betty Chemai has a son who is above 18 years old and the Applicant had not explained to the Court why he wants Bettey’s share under his name and not her son.

19. As regards Ken Chemai, it was her case that he had been missing from home since the year 2019 and his share of the estate should be in their joint administration.

The Submissions 20. In the submissions dated 13th February 2023, it was the Respondent’s case that the Applicant did not table any documentary evidence to prove the deceased’s loan neither did he prove to have paid Kshs 64,000/-.

21. It was her case that the proposed leasing of 15 acres of the deceased estate to offset the loan was not acceptable. She submitted that the deceased estate is approximately 23. 5 acres after deducting the access roads and as such, the outstanding loan should be proportioned between the beneficiaries.

22. She submitted that the Applicant had been treating the Estate of the deceased as his own. She stated that the deceased left behind 12 cows and it is not known where he took them.

23. It was her case that the 3 acres forming the homestead are under the care of Betty Cheburet Chemai , who is staying therein and has been unmarried. She submitted that it should form part of her share.

24. The Respondent pointed out that since the year 2017, the Applicant has been exclusively using and leasing the land as Kshs 10,000 per acre and has never accounted for the money.

25. With respect to Ken Chemai, it was the Respondent’s case that the claim by the Applicant that he is mentally challenged is not true. It was her case that he went missing from the year 2017. She proposed that his share be jointly held in trust by herself and the Applicant.

26. In the end, she proposed the following mode of distribution.a.Ken Chengek Chemai son 4. 7 acresb.Collins Shem Chemai son 4. 7 Acresc.Sam Shem Chemai son 4. 7 Acresd.Emma Cherotich Chemai Daughter 4. 7 Acrese.Betty Cheburet Chemai Daughter 4. 7 Acres

Issues 27. From the foregoing appreciation of the Parties’ respective cases, the only issue for determination is on the mode of distribution.

Analysis and Determination 28. The mode of distribution of a deceased’s estate, whether polygamous and monogamous is well catered for in law.

29. Similarly, the interpretation of the law in both instances is a well-trodden path.

30. In the instant case, the deceased was monogamous and at the time of his death, his wife, Selina Chepkwemoi Chemai, was deceased. In that scenario, Section 38 of the Law of Succession Act automatically kicks in. It provides as follows;Where an intestate has left a surviving child or children but no spouse the net intestate estate shall, subject to the provisions of Section 41 & 42 devolve upon the surviving child, if there be only one, or be equally divided among the surviving children.

31. The import of section 38 of the Law of Succession Act was aptly discussed by the Court of Appeal in Civil Appeal 15 of 2013,Grace Wachuka v Jackson Njuguna Gathungu & another [2014] eKLR. The learned Judges noted as follows;13. In this case the deceased was survived by five children as set out above. We find that all the children including the deceased’s married daughters are entitled to equal shares in the deceased’s Estate.

32. The Court, in the above cited case, cited with approval its earlier decision in the Estate of Grace Nguhi Michobo (deceased) –H.C Succession No 1978 of 2007, where the intention of Parliament as regards gender parity in the wording of section 38 was remarked as hereunder;Koome, J (as she then was) in the Estate of Grace Nguhi Michobo (deceased) –H.C Succession No 1978 of 2007, expressed herself as follows: -“In my humble opinion, Parliament must have made consideration to all the above matters and therefore found it necessary not to make any distinction between male and female child as regards inheritance. All children of the deceased are treated equally their gender notwithstanding. Accordingly, unless a married daughter has willingly renounced her rights, she cannot merely be left out of her parent’s estate.”

33. In the end, the learned Judges disapproved the High Court’s finding that ran contrary the dictates of Section 38 of the Law of Succession Act by making the following Orders;The upshot of the foregoing is that we revoke the certificate of confirmation and direct that the Estate which comprises of LR No Othaya/Kiandemi/ 174 (suit land) measuring 4 acres be distributed equally among the deceased’s five children.

34. It is common ground that there is no consent or consensus in the mode of distribution in the instant case. That position, appreciated alongside the Court of Appeal decision in Justus Thiora Kiugu, & 4othersv Joyce Nkatha Kiugu &another [2015] eKLR bolters this Court’s resolve to strictly apply section 38 of the Law of Success son Act. In the case, the learned Judges stated as follows;… that where the parties filed consents on distribution, the court would have no reason not to endorse the distribution proposed, so long as the same had the concurrence of all the persons beneficially entitled, even if the proposed distribution departed from what the law provided on distribution. However, where there is no consensus, the court strictly applies the law.”

35. It is imperative for every Court to endeavour to read the Constitution into every law to ensure a harmonious outcome. That said, it can be discerned that Section 38 of the Law of Succession Act agitates for non-discrimination on the basis of sex. For purposes of distribution, a child is a child, married or unmarried.

36. The foregoing brings to sharp focus the provision of Article 27(1), (3) and (5) of the Constitution that guard against discrimination. They provide as follows;27(1).Every person is equal before the Law and has the right to equal benefit of the law.(3).Women and men have the right to equal treatment including the right to equal opportunities in political, economic, cultural and social spheres.(4).A person shall not discriminate directly or indirectly against another person on the ground contemplated in clause 4. (race sex, pregnancy, marital status, health status, ethnic or social origin, colour, age, disability, conscience, belief, culture, dress, language or birth.

37. In Civil Appeal No 221 of 2007, Christine Wangari Gachigi v Elizabeth Wanjira Evans & 11 others [2014] eKLR the Court of Appeal emphasized the paramountcy of equality in distribution of by observing as follows;The principle of equality as enshrined in section 38 of the Act is the key principle which ought to have guided the learned Judge in the distribution exercise. We affirm that it is the same principle that will guide our redistribution exercise. In doing so, we find it fit not to treat the eligible grandchildren of the deceased as single units, but to reroute them back to benefit as such through their deceased parents house hold units.

38. Having elaborated on the legal regime on distribution and the interpretation thereof, their application to the instant case will be concise and succinct.

39. From the outset, the total acreage of land up for distribution seems to be in contest. The Applicant claims the total acreage is 21 while the Respondent maintains that it is 23 acres.

40. The Land Settlement Fund full balance statement attached to the Petition for Letters of Administration indicates that the Deceased’s Estate is 9. 799994 Hectares. Converted into acreage, the land is 24. 2163 acres.

41. The other issue in contest is the mental wellness of Betty Cheburet Chemai and Ken Chengek Chemai. The Applicant contends that the two are mentally challenged and as such, he and the respondent should hold in trust their share of the estate.

42. The evidence before this Court is the medical report of Betty Cheburet Chemai. It is done by a Doctor from Kapsara Sub-County Hospital. It indicates that Betty has been mentally ill from the time she was 17 years old and has various been on anti-psychotic drugs. The doctor recommends support from family members in order to avoid any incidence of harming herself or others.

43. The claim by the Applicant that Betty is mentally stable is uncorroborated. This Court is inclined to make the finding that is supported by evidence.

44. As regards Ken Chemai, whereas the Applicant deposed that he was mentally ill Respondent claimed that he only was missing. Nether of the two positions was corroborated by evidence.

45. In the Petition for Letters of Administration, the Petitioner and the Respondent agree that Ken Chemai was missing.

46. In the premises, this Court takes the position agreed upon by parties from the onset and to that end finds that Ken Chamai’s portion of the property can only be held in trust until his whereabouts is resolved.

47. Coming back to the elephant in the room, the distribution of the deceased’s estate shall preserve the sanctity of equality as elaborated the Court of Appeal authorities set out. The deceased’s estate shall devolve as follows;

48. The Surveyor’s report indicating acreage of the deceased’s estate as 24. 5 acres, tallies with the acreage of the land as per the documents used to Petition this Court for Letters of Administration.

49. Respondents claim therefore that the total acreage available for distribution is 21 acres is a misdirection.

50. Out of the 24. 5 acres, the Surveyor’s report indicates the homestead covers 1. 28 acres whereas 1. 43 acres is murram and as such not fertile for farming activity.

51. That being the case, the circumstances of the family of the deceased behoves this Court to ensure that the mentally ill members of the family are well taken care of in the first instance.

52. To effectively achieve that, this Court makes the following final Orders:a.The parcel of land known as Trans Nzoia/Suwerwa/331 measuring 24. 5 acres shall devolve equally among the 5 children of the deceased and as under.b.The murram area measuring about 1. 43 acres shall be equally divided among the 5 children of the deceased.c.The rest of the land shall also be equally divided among the 5 children of the deceased.d.In effecting (c)above,area of 1. 28 acres forming the homestead shall include the area allocated to Betty Cherotich Chemai who has all along occupied the same.e.The allocation to Betty Cherotich Chemai, who is mentally-challenged, shall be jointly held in trust by Emma Cherotich Chemai and Collins Shem Chemai until when Betty Cherotich Chemai fully recovers or until when appropriate orders are made under the Mental Health Act and/or any other law.f.Likewise, the allocation to Ken Chengek Chemai, whose whereabouts are unknown, shall be jointly held in trust by Emma Cherotich Chemai and Collins Shem Chemai until when Ken Chengek Chemai is found or until when appropriate orders in law are made.g.The children of the deceased herein shall bear equal liability to the outstanding loan over the property herein. The Administrators shall ascertain the most current outstanding loan amount and shall inform the rest of their siblings for settlement. In any event, the legal transmission of the shares decreed above by this Court can only be effected upon the successful discharge of the property from the Settlement Trust Fund.h.The Administrators shall offset the amounts due to Betty Cherotich Chemai and Ken Chengek Chemai from the utilization of the shares of the two persons or alternatively, as the Administrators may otherwise agree and deem fit in the circumstances.i.Once the property is fully discharged from the Settlement Trust Fund, the costs of the sub-division shall also be equally shared by the 5 siblings. Unless the circumstances happen to be different by then, order (h) above shall apply in respect of the amounts then due to Betty Cherotich Chemai and Ken Chengek Chemai.j.Since this is a case involving family members each party shall bear its own costs.

52. It is so ordered.

DELIVERED, DATED AND SIGNED AT KITALE THIS 16TH DAY OF NOVEMBER, 2023. A. C. MRIMAJUDGEJudgment virtually delivered in the presence of:Mr. Nyamu, Learned Counsel for the 1st Petitioner/Administratrix.Mr. Kaosa, Learned Counsel for the 2nd Petitioner/Administrator.