[2022] KEHC 790 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MIGORI

SUCCESSION CAUSE NO. 141 OF 2015

IN THE MATTER OF THE ESTATE OF STAKUS OSUNGA AMIMO (DECEASED)

BETWEEN

ELISHA OKEYO OSUNGA...................................................OBJECTOR/APPLICANT

AND

MOSES OKEYO OSUNGA............................................PETITIONER/RESPONDENT

RULING

This matter relates to the Estate of the Stakus Osunga Amimo who died intestate on 21/2/2002. The petitioner, Moses Okeyo Osunga filed the summons for confirmation of grant dated 30/11/2020. The protestor, Elisha Okeyo Osunga filed a replying affidavit opposing the summons for confirmation of grant which shall be the ‘affidavit of protest’ for purposes of these proceedings. The estate comprises only one piece of land SUNA EAST/ MANYATA 1767 measuring about 7. 64 HA.

The summons for confirmation of grant is in respect of the grant of letters of administration issued to the petitioner on 24/6/2015. The petitioner proposed that the mode of distribution be as follows: -

i. A portion of 2. 6 acres already sold by the deceased to one Tabitha Awour Obara;

ii. 0. 5 acres given as a gift to Nyambaja S.D.A Church;

To the rest of the beneficiaries;

iii. Jared Amino Osunga together with his sons - 2 acres;

iv. Charles Okello Abonyo together with his sons - 2 acres;

v. Elisha Okea Osunga - 2 acres.

vi. Ezron Ogayo Osunga and Jared Amimo Osunga - 2 acres.

In his affidavit of protest, the protestor alleges that the purported purchase of the portion measuring 2. 6 acres by one Tabitha Awour is not known to them and they are not aware of any sale; that the intended distribution needs to leave an access road reserve or passage, more so the road reserve to serve the church and nearby school; that the administrator has not made any attempts to meet the beneficiaries to discuss the mode of distribution; that one of their brothers John Owour Osunga has a family which has not been provided for and that the entire distribution will disinherit the entire household; that the person appearing on the list as Charles Okello Abonyo is a stranger to the family; that even the administrator himself does not stay in the said estate; that the said estate has not been entirely distributed with the balance of 7. 8 acres remaining; that all 5 houses should be treated equally by allocating 1. 53 Ha or 3. 78 acres per house.

In response to the protest, the petitioner filed a supplementary affidavit dated 18/2/2021. The petitioner deponed that the total hectares of the parcel SUNA EAST/MANYATTA 1767 measures 7. 6 HA which translates to 19 acres and confirms equal distribution as per his supporting affidavit; that the land has been equitably distributed including a portion which was sold to Tabitha Awour Obara measuring 2. 6 acres and ½ acre given to Nyambaja SDA church leaving behind 16 acres which has been shared equally among the eight sons of the deceased, the living and the deceased; that the name of Charles Okello Abonyo is a typographical error and his name should be struck off.

It is only the petitioner who filed submissions which I have duly considered. Notably, the proposed mode of distribution is now as follows: -

i. A portion of 2. 6 acres already sold by the deceased to one Tabitha Awour Obara;

ii. 0. 5 acres given as a gift to Nyambaja S.D.A Church.

To the rest of the beneficiaries;

iii. Jared Amino Osunga - 2 acres;

iv. Elekia Odhiambo Osunga - 2 acres;

v. Tom Mboya Osunga - 2 acres;

vi. John Owour Osunga (deceased) Faith Owour Osunga - 2 acres;

vii. Elisha Okea Osunga - 2 acres;

viii. Ezron Ogayo Osunga - 2 acres;

ix. Jared Amimo Osunga - 2 acres;

The issues for determination are:-

a) Whether the protest has merit;

b) How the estate should be distributed, as proposed by the petitioner or the protestor?.

The uncontested fact is that the deceased was survived by eight (8) sons. It is also uncontested that the deceased donated 0. 5 acre of his estate as a gift to Nyambaja SDA Church.

The protestor’s objection is premised on three issues: -

i. The purported sale of 2. 6 acres by the deceased to one Tabitha Awour Obara.

ii. That their deceased brother John Owour Osunga has not been provided for.

iii. The remaining land of 7. 8 acres which has not been distributed.

Before delving into the issues for determination, it is important to establish who the beneficiaries of the deceased’s estate are. According to Form P&A 14 annexed to the summons for revocation application dated 11/1/2016, the deceased was survived by seven spouses namely: -

a) Domtila Migori Osunga (Deceased) - 1 st wife.

b) Esther Achieng Osunga (Deceased) - 2nd wife.

c) Tabia Awour Osunga - 3rd wife.

d) Adah Owour Osunga - 4th wife.

e) Tamara Yoro Osunga - 5th wife.

f) Rosa Alando Osunga - 6th wife.

g) Plista Achieng Osunga - 7th wife.

The deceased’s wives Domtila Migori Osunga, Esther Achieng Osunga and Plista Achieng Osungaare said to be deceased. Domtila Migori Osunga the first wife, died after separating with the deceased and was buried elsewhere while Plista Achieng Osunga and Esther Achieng Osunga both died childless.

It can also be established from the documents on record that two of the deceased’s sons being Jared Amimo Osunga and John Owour Osunga are also deceased. However, each of them left families behind. John Owuor Osunga is represented by his wife Faith Owuor Osunga. Jared Amimo left two widows and his sons are inclined in the list of beneficiaries.

By the affidavit dated 11/1/2016, the protestor included in the list of beneficiaries alleged that the deceased was survived by eight daughters. In the application dated 27/4/2016, by the petitioner, an affidavit was sworn by Margret Odunga who described herself as one of the daughters of the deceased and that she was swearing it on behalf of the other daughters who include Caren Achieng Otieno, Eunice Anyango Olaro, Jane A. Okanda, Judith Anyango Osunga all married, that they had agreed as a family that the petitioner will administer the deceased’s estate. She also claimed to be deponing on behalf of Dorothy Owino and Linet Anyango Osunga, granddaughters of the deceased and that none was laying claim to the deceased’s estate. They therefore denounced any claim to the estate.

Though the protestor claims to be representing other beneficiaries, he does not make mention of any nor has any sworn an affidavit to that effect. Though the protestor had alleged that the deceased had eighteen (18) daughters, this court has no idea who they are. Having failed to do so, the court will presume that those who swore an affidavit dated 27/4/2016, through Margret denouncing their interest in the estate are the only daughters of the deceased. Faith Awuor, wife to the deceased’s son John Owuor Osunga also swore an affidavit, dated 27/4/2016, indicating that the petitioners was representing the family, and her interests are taken care of.

Thus, the beneficiaries of the estate of the deceased person are his sons who are listed as hereunder:-

i. Jared Amimo Osunga - Deceased.

ii. Moses Okeyo Osunga.

iii. Elekia Odhiambo Osunga.

iv. Tom Mboya Osunga. v. Elisha Okeyo Osunga.

vi. John Owour Osunga - Deceased.

vii. Ezron Ogayo Osunga.

ix. Elisha Okeya.

On whether 2. 6 acres was sold by the deceased to Tabitha Awour Obara, the petitioner contends that the deceased sold the said land to Tabitha Awour Obara and the rest of the beneficiaries have no objection to that transferring it to her. The protestor simply contends that they are not aware of the sale. The protestor would have assisted this court by citing the said purchaser as a party to his protest so that she could shed light on when and how she acquired the parcel of land measuring 2. 6 Ha from the deceased’s estate. There is a caution on the title dated 2/3/2000 which was placed on suit land parcel no. SUNA EAST/MANYATTA/1767 marked as ‘MOO2’ in the petitioner’s supplementary affidavit. None of the parties have explained to this court what became of the caution 22 years later. In any event, the deceased as per the death certificate dated 31/10/2011, died on 21/12/2002. It means that if the caution was placed in the year 2000, the sale of 2. 6 Ha happened during the lifetime of the deceased.

I am inclined to agree with the petitioner that the deceased had sold the parcel of land measuring 2. 6 ha to Tabitha Awour Obara during his lifetime.

On whether John Owour’s Osunga house has been considered in the distribution, the petitioner submitted that John Owour’s wife, one Faith Owour Osunga has been considered and shall inherit her deceased husband’s share of the estate. The said Faith Owour Osunga is a daughter in law to the deceased. The same case applies to their eldest brother Jared Amimo Osunga whose three sons have been listed as beneficiaries on behalf of their father’s shares that is Osunga Junior, Joseph Amimo and Antony Osunga.

PART V of the Law of Succession Act provides for intestacy. By dint of Section 39 of the Law of Succession Act, the parents, siblings, half - siblings and their respective children and relatives of close blood upto the sixth degree of consanguinity are considered the beneficiaries of the estate of a deceased in intestacy. In - laws of the deceased are not counted as beneficiaries. The actual survivors of the deceased are his grandchildren. It has not been disclosed to this court if there are surviving children from the house of John Owour Osunga (deceased). I take cue of the fact that the protestor deponed that his late brother has a family and draw the assumption that there are children in the house of John Owour Osunga (Deceased). In that case, the petitioner rightly submitted that the wife of John Owour Osunga (Deceased) can inherit the portion of the husband’s parcel of land but subject to her holding it in trust for the children of the deceased if any.

The protestor contended that there is a balance of 7. 8 acres which is yet to be distributed. The protestor proposed that all 5 houses should share the land equally and allocated 1. 53 Ha or 3. 78 acres per house. Although there is no title deed on record, the certificate of official search dated 16/2/2015 shows that the estate of the deceased is made up of land measuring 7. 64 Ha. The net residue estate of deceased person, available to be distributed, is the one which takes into account the expenses and liabilities which arose out of it. The portion of land that has been sold and the one donated, ought to be taken into account first before distribution of the estate. See Section 83 (f) and (g) of the Law of Succession Act.

The balance of the estate, available for distribution is 7. 64 Ha which is equivalent to 18. 87 acres of land or thereabouts less, the land donated to the church and the land sold to Tabitha measuring 0. 5 and 2. 6 acres respectively. It totals 3. 1 acres of land. The remaining parcel of land available for distribution is therefore 15. 77 acres. The petitioner proposed equal distribution to all the eight (8) sons of the deceased and/or their households whereby each son will be get about 2 acres of land.

Sections 35 and 38 of the Law of Succession Act provide for distribution of a deceased’s estate where the deceased is survived by children but no spouse. In that case, the deceased’s estate will be divided ‘equally’ among the children of the deceased. I find that the proposal by the petitioner is plausible and in accordance with the law. I believe the protestor wants distribution by house because he is a lone child and would get a bigger share. That is greed and not equitable distribution as envisaged by the law. All children of a deceased person are equal before the law.

The Protestor averred that there is some 7. 8 Ha that is yet to be distributed and proposed that it should be divided among the 5 houses with each house being allocated 1. 53 Ha or 3. 78 acres per house. The objector has not demonstrated to this court how he arrived at the figure of 7. 8 Ha and which of the eight sons he proposes to be excluded as beneficiary in order to arrive at a figure of 5 houses. I therefore find that the protestor’s objection has no merit and the same is dismissed.

As I come to the end of the of this ruling, I note that the petitioner, although he has been mentioned as the 2nd born son of the deceased, he has not listed himself as one of the beneficiaries of the deceased’s estate, in the proposed mode of distribution. There are only seven (7) sons of the deceased listed. The petitioner has not explicitly mentioned to this court that he does not wish to be included as a beneficiary to the estate of the deceased. Therefore, I shall take him into consideration as the eighth son.

In the end, I allow the summons for confirmation of grant dated 30/11/2020 and proceed to distribute the deceased’s estate comprising North Suna East / Manyatta / 1767 as follows:-

1) Tabitha Awuor Obara 2. 6 acres (Purchaser)

2) Nyambaja S. D. A. Church 0. 5 acres

The balance of the estate is 15. 77 acres and will be distributed as follows:

3). Osunga Junior, Joseph Amimo and Antony Osunga (sons) to Jared Amimo Osunga (Deceased) – 2. 2 acres.

4). Moses Okeyo Osunga – 2. 2 acres.

5). Elekia Odhiambo Osunga – 2. 2 acres.

6). Tom Mboya Osunga – 2. 2 acres.

7). Faith Owour Osunga (wife to John Owour Osunga to hold in trust (deceased) – 2. 2. acres.

8). Elisha Okea Osunga – 2. 2 acres.

9). Ezron Ogayo Osunga – 2. 2 acres.

There shall be no orders as to costs.

DATED, DELIVERED AND SIGNED AT MIGORI THIS 17TH DAY OF MARCH, 2022.

R. WENDOH

JUDGE

RULING DELIVERED IN THE PRESENCE OF

MR. AGURE FOR THE PETITIONER ABSENT.

MR. KISIA FOR THE OBJECTOR.

EVELYN NYAUKE COURT ASSISTANT.