[2022] KEHC 11186 (KLR)

In re the Estate of Ainea Busolo Kilaini alias Ainea Kilaini (Deceased) (Succession Cause 1299 of 2012) [2022] KEHC 11186 (KLR) (29 July 2022) (Judgment)

Neutral citation: [2022] KEHC 11186 (KLR)

Republic of Kenya

In the High Court at Kakamega

Succession Cause 1299 of 2012

WM Musyoka, J

July 29, 2022

IN THE MATTER OF THE ESTATE OF AINEA BUSOLO KILAINI alias AINEA KILAINI (DECEASED)

Judgment

1. Am called upon to decide the summons for confirmation of grant, dated 30th March 2015.

2. This matter relates to the estate of Ainea Busolo Kilaini, who died on 26th September 1990. According to the letter of the Chief of Mautuma Location, dated 5th October 2012, he had two wives, being the late Desi Mmboga Kilaini and Selina Mideva Kilaini. The first wife had 10 children, being Hesbon Chavatuzi Busolo, Ernest Lugasi Busolo, Amos Mudave Busolo, Fredrick Luga Busolo, Seth Vosena Busolo, Evans Liyai Busolo, Gladys Imali Busolo, Margaret Alividza Kilaini, Ruth Kahenda Busolo and Pamela Izavi Busolo. The children of the second wife, who is said to be still alive, are listed as Solomon Kihonji Ainea, Alfred Naligu Busolo, Florence Vodembeke, Rose Imali, Mary Kaziga, Rebecca Sambili, Kezia Vihenda Kilaini, Everlyne Kayasi Busolo and Nancy Muhonja Kilaini. He died possessed of Kakamega/Mautuma/3. Representation to the estate was granted to the surviving spouse, Selina Mideva Kilaini, on 3rd July 2014, and a grant was duly issued, dated 15th July 2014. I shall refer to Selina Mideva Kilaini as the administratrix.

3. The application, dated 30th May 2015, is at the instance of the administratrix. She lists all the 21 individuals named in the letter of the Chief, as the survivors of the deceased. Kakamega/Mautuma/3 is shared, apparently, according to the houses. All the children in the first house are to share 4 acres equally, that is to say Hesbon, Ernest, Amos, Fredrick, Seth, Evans, Gladys, Margaret, Ruth and Pamela. Only 3 individuals are to share the 5 acres allocated to the second house, that is to say Selina 1 acre, Solomon 2 acres and Alfred 2 acres. The daughters, that is to say Florence, Rose, Mary, Rabecca, Kezia, Everlyne and Nancy, are not allocated any shares. ½ acre is set aside for roads. The consent in Form 37, undated, but filed simultaneously with the application, is signed by 8 individuals from the second house, namely Solomon, Alfred, Florence, Rose, Rebecca, Kezia, Everlyne and Nancy.

4. Evance K. Busolo filed an affidavit of protest to the application, sworn on 20th May 2015. He avers that a family meeting had agreed on the distribution of the estate. According to that distribution, the 8 sons are allocated 1 acre each, that is to say Solomon, Alfred, Hesbone, Ernest, Amos, Fredrick, Seth and Evance. The 4 daughters in the first house share 0. 5 acres equally, that is to say Gladys, Margaret, Ruth and Pamella. The 7 daughters in the second house are to share 0. 5 acre equally, that is to say Florence, Rose, Mary, Rebecca, Kezia, Everlyne and Nancy. The widow and administratrix is to take 1 acre. A ¼ acre is allocated to road access. I shall refer to Evance K. Busolo as the protestor.

5. Attached to the protest affidavit is a letter from the Assistant County Commissioner for Lugari Sub-County, dated 6th January 2015, which alludes to that family meeting, and the proposed distribution, that all the sons of the deceased get 1. 0 acre each all the daughters from the first house to share 0. 5 acre equally, all the daughters from the second house to share 0. 5 acre equally and the administratrix to get the remaining 1. 00 acre absolutely. The second document is in Kiswahili. It alludes to a meeting held on 29th December 2014, which distributed the property in the terms of the letter of the Assistant County Commissioner of 6th January 2015 and the affidavit of protest of 20th May 2015. The document is signed by protestor as chairman, Levi Sababa as secretary and Hesbon Makenzi as village elder.

6. The summons, dated 30th May 2015, and the protest to it, dated 20th May 2015, were disposed of by way of oral evidence.

7. The protestor was the first to take the witness stand on 5th April 2014. He stated that he was from the first house, which had 10 children, while the second house had 9 children. The first house had 6 sons and 4 daughters, while the second house had 2 sons and 7 daughters. Kakamega/Mautuma/3 was the only asset, estimated to measure 11 acres or thereabouts. He averred that the proposal by the administratrix was according to the houses, and not the number of children. He stated that his proposal was in accordance with the number of children. He stated that the family had sat and agreed on the distribution proposed in his protest.

8. At cross-examination, the protestor said that the minutes placed on record did not indicate who attended the family meeting. He also stated that no one from the second house signed the minutes. He stated that the minutes did not indicate the venue for the meeting, but said that it was held at the homestead of the first house. He said that he and his brothers from the first house had complained to the Assistant County Commissioner, and the Assistant County Commissioner attended the meeting. He stated that both sides of the family occupied different portions of the land, and there was a boundary, which was put after the deceased died. He said he was not aware whether the two portions of the land were equal. He stated that there were 20 survivors of the deceased, inclusive of the administratrix, and that each child was entitled to a share in the estate. He said 8 daughters attended the meeting of 29th December 2014, and named them as Nancy, Kezia, Rose, Ruth, Pamella, Gladys, Margaret and Florence. He said two other daughters had been invited, but they did not attend the meeting. He said he did not wish some family members to get shares larger than those of other family members, but added that he does not agree to equal distribution. He said if the land was shared equally, each of them would get 0. 5 acre. He said he had no objection if a survivor surrendered their share to another survivor. He also agreed that equal distribution would be fair. He insisted that he wanted a mode of distribution that was in accordance with the meeting of 29th December 2014, although he conceded that that distribution was not fair. He said he did not agree that each house gets 5 acres each, asserting that distribution should not be in accordance with the houses. He said that according to Maragoli culture, women were not entitled to inherit, although he said that he was not against the daughters of the deceased getting a share. He stated his view to be that the daughters should get less than the sons, because they got married.

9. Levy Amaleba Sababa testified next, on 30th October 2018. He was a cousin of the protestor. He attended the meeting of 29th December 2014. He reiterated the resolutions of the said meeting, as captured in the letter of the Assistant County Commissioner, of 6th January 2015, and the minutes of the meeting of 29th December 2014. During cross-examination, he stated that the deceased had 19 children. He conceded that each of the children of the deceased were entitled to a share in the state. He said that the sons were to get 8 acres in total. He denied that there was discrimination or favourism. He had said that sons had more rights than the daughters, according to custom. He said that a custom that denies a person a right is not a good custom. He said that the protestor chaired the meeting of 29th December 2014 and that he acted as the secretary. He conceded that no one from the second house held any position in that meeting. He said that the first house had 6 acres, according to a survey that was done by Eliud Koyangi. The said that the surveyor confirmed the land to be 10 acres. He said that there was a euphorbia grass boundary, that had been put up by the deceased, separating the two houses. He confirmed that no one from the second house signed the minutes. He said that the land was 10½ acres. He said the minutes did not record what each of these persons contributed to the discussion. He said that the share given to the daughters was in the nature of a gift.

10. Joshua Khamisi followed. He was a neighbour of the estate. He spoke about a meeting held on 30th December 2014 chaired by the District Officer. He said that both wives and children of the deceased attended the meeting. He said the surviving widow was to get 1 acre, the daughters from the first house were to get ½ acre to share, and the daughters in the second house were to also get ½ acre to share amongst themselves. The remainder of the land was to be shared out amongst the sons. He said it was alright for the daughters to get the ½ acre as they were married. At cross-examination, he stated that the deceased had shown the children where to cultivate, there was a boundary, but he said that the same had not been put up by the deceased. He said that the deceased did not plant any euphorbia trees, but then he said that the boundary was planted by the deceased and it was still intact. He said he could not tell the acreage being utilized by each house, and could not confirm whether the two portions were equal or not.

11. Gladys Imali followed. She attended the meeting of 29th December 2014. Clansmen and neighbours were also in attendance. She stated that the resolutions of the meeting were what is reflected in the proposals on distribution placed on record by the protestor. She said that she was satisfied with the said resolutions. She said that the deceased had shared out the land between the two houses, and there was a boundary. She said she did not see any euphorbia plants marking the boundary. She said that the share allocated to the daughters was like a gift to them. Although she conceded that each child of the deceased is entitled to an equal share of the estate of their father. She said that she was not averse to getting a share equal to that of the sons.

12. The case for the administratrix opened on 23rd March 2021, with the administratrix on the stand. She reiterated that the deceased was a polygamist. He had 20 children, but one died. She had 10, while her co-wife had 10, and the 1 who died was from her side. She said that the deceased had subdivided the land before he died, and there was demarcation. She said that every child was given or her own land. She urged the court to go by her proposals.

13. At the close of the oral hearings, the parties were directed to file written submissions. I have only seen submissions by the administratrix, dated 29th April 2021. I have gone through them and noted the arguments made.

14. The deceased died in 1990, long after the Law of Succession Act, Cap 160, Laws of Kenya had come into force. That meant that section 2(1) of the Act applied, which provides that the Act applies to estates of persons dying after its coming into force, which was on 1st July 1981. The application of the Act, by virtue of section 2(1), would mean that the intestate estate of a person dying in 1990 would be subject to Part V of the Law of Succession Act, which covers provisions on how the estate of intestate is to be distributed. The application of section 2(1) ousts the application of customary law. See In re Estate of Gamaliel Otieno Onyiego (Deceased) [2018] eKLR (JA Makau J) and In re Estate of Juma Shiro (Deceased) [2016] eKLR (Mwita J). Customary law is allowed to apply by section 2(2) of the Act, with respect to estates of persons who died before the Law of Succession Act came into force in 1981. It is also allowed to apply by sections 32 and 33 of Law of Succession Act, with respect to immovable property situated in such areas as may be gazetted by the Minister. That was done through Legal Notice Number 94 of 1981. Property situated within Kakamega County is not included in that Legal Notice, and, therefore, sections 32 and 33 are of no application to the instant estate.

15. Sections 2(1), (2(2), 32 and 33 of the Law of Succession Act provide as follows:“2(1)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 estates of deceased persons dying after, the commencement of this Act and to the administration of estates of those persons.”2(2)“The estates of persons dying before the commencement of this Act are subject to the written laws and customs applying at the date of death, but nevertheless the administration of their estates shall commence or proceed so far as possible in accordance with this Act.”32“The provisions of this Part shall not apply to—(a)agricultural land and crops thereon; or(b)livestock, in various Districts set out in the Schedule: West Pokot, Wajir, Samburu, Lamu, Turkana, Garissa, Isiolo, Kajiado Marsabit, Tana River, Mandera Narok.”33“The 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. Section 71 of the Law of Succession Act states the law on confirmation of grants, while Rules 40 and 41 provide the procedures to be followed. Of critical relevance is the proviso to section 71(2) of the Law of Succession Act and Rule 40(4) of the Probate and Administration Rules. They create a duty for the administrator applying for confirmation of grant, to satisfy the court that they have ascertained the persons beneficially entitled to a share in the estate, and the shares due to these persons. The two provisions also cast a duty on the court, to satisfy itself that the persons beneficially entitled to a share in the estate are ascertained, and their respective shares have been ascertained. This is so critical that, in In the Matter of the Estate of Ephrahim Brian Kavai (Deceased) Kakamega HCSC No. 249 of 1992 (Waweru J) (unreported), it was said that being satisfied that that has been done is the most important aspect of the intestate succession process, and failure by the court to seek and obtain that satisfaction should render the confirmation orders made illegal. The interpretation to be given to the above is that where the court is not so satisfied, it should not proceed with the confirmation process, until there is full compliance. See also In the Matter of the Estate of Benjamin Ng’ono Mbati alias Ng’ono Mbati Kakamega HCSC No. 77 of 2014 (Musyoka J) (unreported).

17. The proviso to section 71(2) of the Law of Succession Act states as follows:“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.”

18. While Rule 40(4) of the Probate and Administration Rules provides:“Where the deceased has died wholly or partially intestate the applicant shall satisfy the court that the identification and shares of all the prisons beneficially entitled to the estate have been ascertained and determined.”

19. I will address whether there has been compliance with the proviso to section 71(2) of the Law of Succession Act and Rule 40(4) of the Probate and Administration Rules. I am asking myself, has the administratrix presented material, in the application, geared towards satisfying the court that she has fully ascertained the persons beneficially entitled to a share in the estate of the deceased and has she allocated to them shares in the estate. I am also asking myself, am I satisfied, from that material, that the administratrix has fully ascertained the persons beneficially entitled to a share in the estate and identified the share of each of them in the application.

20. There are three aspects to compliance with the proviso to section 71(2) of the Law of Succession Act and Rule 40(4) of the Probate and Administration Rules. The first aspect is about the persons beneficially entitled to a share in the estate. Part V of the Act is a useful guide. The persons who would be entitled upon the intestacy of the deceased are set out in sections 35, 36, 38, 39, 40 and 41 of the Law of Succession Act. These would be the surviving spouses, the surviving children, the surviving parents, the surviving siblings and other relatives of the deceased up to the sixth degree of consanguinity, and children of the children of the deceased who are since dead. Section 66 is also useful. It lists creditors as persons who may be granted representation to the estate, ostensibly on account of their beneficial interest. Immediate relatives of the deceased have a beneficial interest on account of their filial connection to the deceased, while the interest of the creditors is dependent on the transactions that the said creditors had with the deceased. Persons who carry out legitimate transactions with the estate would also quality to be creditors.

21. The second aspect is about the assets of the estate that are available for sharing between the persons ascertained as beneficially entitled to a share in the estate. Ideally, all the assets of the deceased should be listed, inclusive of those that are encumbered or are contested by third parties. Assets that are registered in the name of the deceased are what are considered to be the assets of his estate. The deceased is considered as having beneficial interest in assets that are claimed to have been bought or inherited by him, but the same had not been transferred to his name before his demise. These should not be available for distribution prior to their titles being perfected. However, they should be listed as assets in the estate.

22. The third aspect is about the distribution itself. The law requires that ascertainment of the persons beneficially entitled should include ascertaining of the shares that ought to be allocated to the persons ascertained as beneficially entitled. Those shares should only be allocated with respect to assets that are undisputedly owned by the deceased, or whose ownership is uncontested. As indicated above, assets whose titles are not perfect ought not to be allocated or distributed. What is available for distribution, according to sections 35(1)(2)(4)(5), 36(1), 38, 39 and 40 of the Law of Succession Act, is the net intestate estate. That is what remains of the assets after settlement of debts, liabilities and administration expenses. Shares in the assets ought not be allocated before debts, liabilities and administration expenses are settled. Ideally, debts and liabilities ought to be settled first, before the estate is proposed for distribution. Where that is not done, there should be provision for debts and liabilities at confirmation, so that what is shared out, amongst the survivors and beneficiaries at confirmation, is what remains after provision for the debts and liabilities. The sharing out should have or give details of the shares allocated to each of the persons beneficially entitled.

23. Looking at the letter from the Chief, the petition, the confirmation application, the protest and the oral testimonies, I am satisfied that the survivors of the deceased have been ascertained. The deceased died a polygamist, having married twice. One of the wives is still surviving. He had 20 children with the two wives. 1 child has died, leaving 19. 10 children are in the first house, 9 are in the second house. There is no mention of creditors by either the administratrix or the protestor, and none had come forward to lay claim to part of the estate. I shall presume that there are no creditors.

24. For avoidance of doubt, sections 35(1)(2)(4)(5), 36 (1), 38, 39 and 40 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.”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. ”

25. On the assets available for distribution, it is also clear from the letter from the Chief, the petition, the confirmation application, the protest and the oral evidence, that the deceased died possessed of only one asset, Kakamega/Mautuma/3. It is available for distribution. I have seen the certificate of official search, dated 6th November 2012. It does not show any encumbrance or caution or restriction, and as no one has come forward to lay claim to a portion of it, I shall presume that the same is unencumbered and uncontested, and, therefore, it is available for distribution. Since there are no creditors, I shall presume there is no portion of it that should be set aside to settle any debts of the estate.

26. On the ascertainment of the shares due to each of the persons beneficially entitled, I have noted that the administratrix has listed all the 20 survivors, herself included, and allocated to each one of them a share in the estate. Of course, she has not allocated any share to the daughters in the two houses, but it is indicated that they get nil or zero share, which is good enough for the purpose of the proviso to section 71(2) of the Law of Succession Act and Rule 40(4) of the Probate and Administration Rules. Whether that mode of allocation of shares is fair, is a different issue, to be addressed later in this judgment. In the protest, the protestor has also identified all the 20 survivors, and has allocated to each a share in the estate.

27. The shares allocated by the administratrix and the protestor indicate that the survivors are treated differently. All the sons get shares that are equal. In the proposals by the administratrix, the daughters in the second house are allocated nothing, while those in the first house are treated equally with the sons in that house. In the proposals by the protestor, the sons and the widow are allocated equal shares, being 1 acre each; while the daughters in each house share 0. 5 acre equally.

28. What does the law require? As stated elsewhere hereabove, the applicable law is Part V of the Act. The protestor and his witnesses argued that customary law applied, and that should explain why the daughters are given smaller or nil shares by both the administratrix and the protestor. I reiterate paragraph 14 hereabove, that section 2(1) of the Law of Succession Act ousted the application of African Customary Law. That would mean that the Maragoli customary law, that the protestor was citing, is of no application whatsoever to the sharing out of the estate herein. The law to apply in Part V of the Law of Succession Act.

29. Under Part V, where the deceased died a polygamist, section 40 applies. The estate is shared out between the houses of the deceased, considering the number of children in each house, and treating the surviving spouse as an additional unit in the house to which he or she belongs. The first house comprises of 10 children, and, therefore, there are 10 units. The second house has 9 children, the administratrix is the surviving spouse in that house, and she should be treated as an additional unit for the purpose of that house. That means that that house has 10 units. According to section 40(1) of Law of Succession Act, Kakamega/Mautuma/3 should be shared out at the ratio of 10:10 or 1:1, meaning it should be share out equally between the 2 houses.

30. After the property is shared out between the 2 houses as per section 40(1), the provisions of section 40(2) kick in. What is allocated to each house is thereafter shared out amongst the survivors in each house according to either section 35(1) or 36 or 38 of the Law of Succession Act, depending on the composition of each house. Section 35(1) governs the situation where the house comprises of a surviving spouse and her children. Section 36 caters for the situation where there is a surviving spouse but no children. Section 38 applies where there are children in the house, but no surviving spouse. For the first house, section 38 applies, for that house comprises of children only, for their mother is dead. Section 35(1) applies to the second house, for there is a surviving spouse and surviving children. Where section 38 applies, the property is shared equally between the children. Where section 35(1) applies, the share for the house devolves upon the surviving spouse, to hold in trust for her children, during her lifetime, to devolve thereafter equally amongst the children, by dint of section 35(5), upon the determination of the life interest. That is what the law expects.

31. However, the courts have said that there is freedom to depart from the distribution envisaged under Part V of the Law of Succession Act. See Justus Thiora Kiugu & 4 others vs. Joyce Nkatha Kiugu & another [2015] eKLR (Visram, Koome & Otieno-Odek JJA) and In re Estate of Juma Shiro (Deceased) [2016] eKLR (Mwita J). Departure is permissible where the survivors or beneficiaries have agreed on the distribution, that is consensus on a mode of distribution that departs from what the law envisages, in Part V of the Law of Succession Act. Put differently, such departure is permissible where all the survivors or beneficiaries have consented to or agreed on a mode of distribution other than that prescribed in Part V.

32. The modes of distribution proposed by the administratrix and the protestor all depart from the distribution under Part V. Before I settle on either of them, I ask myself whether those proposals have the consent of or have been agreed upon by all the survivors of the deceased or the beneficiaries of the estate. In other words, is there consensus or unanimity amongst them for departure from Part V in the manner proposed. The proposal by the administratrix appears to be supported only by members of her house, going by the consent on distribution in the Form 37 that she filed contemporaneously with her summons for confirmation of grant. The survivors in the first house did not sign that consent form, and, therefore, there is no consensus on or unanimity with regard to her proposals. On his part, the protestor did not file a consent in Form 37, executed by the section of the family that supported his proposals. I cannot tell the position of the other members of the first house on the matter, save for that taken by Gladys Imali, in her witness statement, filed herein on 29th June 2016, and her oral testimony in open court on 30th October 2018. So, I know the views of only 2 of the 10 members of the first house. There is, therefore, no consensus or unanimity with respect to the proposals by the protestor. Where does that leave us? In the absence of consensus on distribution, the position taken in Justus Thiora Kiugu & 4 others vs. Joyce Nkatha Kiugu & another [2015] eKLR (Visram, Koome & Otieno-Odek JJA) and In re Estate of Juma Shiro (Deceased) [2016] eKLR (Mwita J) applies. I should apply the provisions of Part V of the Law of Succession Act strictly to the distribution of the estate herein.

33. There is the issue of the entitlement or right of the daughters of the deceased to a share in the estate. The position taken by the administratrix and the protestor is that the daughters of the deceased are entitled to either nothing from the estate of their late father, or, if they have to take anything, it has to be a tiny fraction of what the sons should get. The general position, taken by the sons and the widow, is that the estate belongs to the sons, and the daughters should only expect a token by way of gift from the sons. In other words, it should be for the widows and the sons to determine whether the daughters should get a share or not. Those who advance this argument rely on customary law, and, in this case, Maragoli customary law has been cited, to the effect that the daughters should expect nothing from the estate of their father, more so, if they are married. That position has no foundation in the law. As stated above, the applicable law is Part V of the Law of Succession Act. I have isolated sections 35 and 38 as applying to the distribution herein. According to the Law of Succession Act, the shares go to the children. The Law of Succession Act does not divide or categorize or group or identify children according to their gender. It does not define children in terms of male or female, sons or daughters, married or unmarried. In ordinary usage, the words “child” and “children” refer to individuals of either gender. There is no discrimination. No classification. Where sections 35(5) and 38 of the Law of Succession Act refer to equal distribution amongst children, it means equal distribution between the children of the deceased regardless of their gender, age, level of education or mental or marital status. Sections 35(5) and 38 of the Law of Succession Act are bolstered by the Constitution of Kenya. Article 27 of the Constitution addresses discrimination, and pronounces that men and women are to be treated equally in all spheres of life. It outlaws discrimination based on gender, and urges all State agencies, including the courts, to treat men and women equally.

34. The Constitution is the supreme law in Kenya. It trumps all other laws, including customary law. If it says no to discrimination based on gender, customary law cannot override the edict. Indeed, Article 2(4) of the Constitution is emphatic that any law, including customary, that is a not consistent with the Constitution is void. The customary law position that discriminates against women, in the realm of succession, is in conflict with Article 27 of the Constitution, which provides for equal treatment of men and women in all spheres of life. By dint of Article 2(4), the Maragoli customs being cited here, to deny the daughters equal right and share in the estate of their father, is inconsistent with Article 27 of the Constitution, and is null and void. The constitutional provisions are supported by United Nations Convention on the Elimination of all Forms of Discrimination Against Women, (CEDAW), to which Kenya is a signatory, and which is part of the Kenyan law by virtue of Article 2(5) (6) of the Constitution. The Convention on the Elimination of all Forms of Discrimination Against Women urges States to outlaw gender discrimination in all its forms. Kenya, therefore, has obligations to the international community in that regard, and to uphold discriminatory Maragoli customs would be to go against universal or international standards on how women ought to be treated. Such notions, as those advocated by the protestor, have no place in modern society.

35. Article 2(4)(5)(6) of the Constitution provides as follows:“2(4)Any law, including customary law, that is inconsistent with the Constitution is void to the extent of the inconsistency, and any act or omission in contravention of this Constitution is invalid.(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.”

36. Article 27 of the Constitution states as follows;“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)…”

37. Of course, the law does not force survivors or beneficiaries to take up a share in the estate against their will. However, it is only the person entitled to some right who can decide to forgo that right. The decision to forgo the right cannot be made for them by others, be they their brothers or their mothers. Therefore, in the context of this matter, only the daughters of the deceased can decide whether they are taking a share in the estate or not. They can signify that position by executing affidavits saying so, that is renouncing or waiving or forgoing or disclaiming their share. They can also do so by a deed in writing, or by attending court and saying so to the Judge or magistrate. There is nothing on record herein to show that the daughters have disclaimed or renounced or waived their rights to a share in the estate of their father. Indeed, they have been kept at bay, and their voices have not been heard, except for Gladys Imali. But even then, Gladys Imali takes an ambivalent position. On the one hand, she supports the proposals by the protestor, which are discriminatory against the daughters; and on the other, she says she is not averse to taking a share equal to that of the sons. There is this notion that failing to give daughters a platform, to voice their position in succession proceedings, would, somehow, lead the court to distributing the estate without reckoning them, on the basis that their non-participation or non-involvement is indication of their lack of interest in taking up their entitlement. That notion needs to be debunked, and it was debunked, in Christine Wangari Gichinji vs. Elizabeth Wanjiru Evans & 11 others [2014] eKLR (Nambuye, Ouko & J Mohammed JJA) and In re Estate of Joyce Kanjiru Njiru (Deceased) [2012] eKLR (Gitari J), where the courts held that failure by daughters of the deceased to participate or be involved in succession litigation is not a disentitling consideration, in the absence of renunciations by them, and the court should proceed to provide for them, their non-involvement or non-participation notwithstanding, for their rights and shares are well spelt out in the law.

38. The protestor relied on proceedings that were conducted before an Assistant County Commissioner for Lugari on 29th December 2014, where it was allegedly agreed on how the estate was to be distributed. He presented a document, which he described as the minutes taken of those proceedings. Several things arise from this. One, the proceedings that the Assistant County Commissioner conducted were not sanctioned by the court. At the time the Assistant County Commissioner was sitting with the protestor and his party, on 29th December 2014, the administratrix had been appointed, on 3rd July 2014, to administer the estate, and she held a grant dated 15th July 2014. By dint of section 79 of Law of Succession Act, the estate of the deceased vested in her, and it was only her who had authority over the assets and affairs of the estate, and it was only her who could represent the deceased. The cause herein had been initiated on 3rd December 2012, and effective from that date the affairs of the estate were subject to this court. Distribution of the estate of a dead person is the preserve of the court, and no State agency or any other entity ought to purport to sit and deliberate on how an estate is to be distributed, unless that sitting has been sanctioned by the court. For one, it amounts to undermining the authority of the court, for that other entity would be arrogating to itself an authority and mandate that lies with another entity. The outcome of the proceedings conducted by the unsanctioned authority would expose both the court and the authority to embarrassment. Both are government bodies. It would be awkward where the resolutions by the unauthorized entity conflict with the law, and have to be discarded or disregarded by the court, and that would expose the two State bodies to ridicule, by seeming not to be reading from the same script. The focus of the court is application of the law, that of the Executive, through the office of the Assistant County Commissioner, is maintenance of peace and harmony in the community, which sometimes means applying principles that are not in accord with the law relevant to the dispute at hand. My point is that entities like the Assistant County Commissioner should intervene only with the permission of the court, so that the court directs what should be done, in accordance with the law, in order to manage the expectations of the parties.

39. I am, of course, I am alive to Article 159(2)(c) of the Constitution, about promotion of alternative forms of dispute resolution, such as mediation, reconciliation and traditional dispute resolution mechanisms. The proceedings conducted by the Assistant County Commissioner could fall under any of those. It was a form of alternative dispute resolution mechanism or alternative justice system. I agree that it would be a good thing for the State, through the County Commissioner, to encourage dialogue between family members. It is something to be promoted, but since the matter was already in court, it ought to have been done in the context of the court proceedings, so that the decision arrived at that meeting had the sanction of the court. Where it is done outside the court process, it could fall afoul of section 45 of the Law of Succession Act, and amount to intermeddling with the estate of a dead person, for the Assistant County Commissioner had no lawful authority, under the Law of Succession Act, to venture into those matters. Secondly, the administratrix of the estate was sidelined, yet the estate was vested in her. The Assistant County Commissioner dealt with the protestor, and appeared to hoist or elevate him to the position of administrator of the estate when he was not the appointed administrator. The protestor had no authority to chair a gathering to discuss distribution of the estate, yet he was not the administrator. His conduct amounted to undermining the authority of the court appointed administratrix, and to usurp her role and office. It contravened section 45 of the Law of Succession Act, and he was guilty of the intermeddling with the estate of the deceased to that extent.

40. Be that as it may, if the gathering of 29th December 2014 came up with resolutions which had the consensus of or had attracted the unanimous support of all the persons beneficially interested in the estate, in the spirit of Article 159(2)(c) of the Constitution, and despite it being in contravention of section 45 of Law of Succession Act, the said resolutions could still be honoured by the court, and adopted for the purpose of distribution of the estate. Unfortunately, there is no evidence that any consensus was arrived at that meeting by all the 20 immediate surviving members of the family of the deceased. There is no evidence of any unanimity. The document placed in evidence, as the minutes of that meeting, is signed by 3 individuals, and out of the 3 only 1 is a member of the immediate family of the deceased. The said minutes do not list the names of the attendees of the meeting. There is no telling, therefore, as to who attended that meeting. It is not a document to which any importance should be attached.

41. Article 159(2)(c) of the Constitution states:“In exercising judicial authority, the courts and tribunals shall be guided by the following principles—a.…b.…c.alternative forms of dispute resolution including reconciliation, mediation, arbitration and traditional dispute resolution mechanisms shall be promoted, subject to clause (3);d.…e.…”

42. Section 45 of the Law of Succession Act says:“(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.”

43. Section 79 of the Law of Succession Act states:“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.”

44. In view of everything that I have said above, I shall proceed to distribute the estate of the deceased as follows:a.That Kakamega/Mautuma/3 shall be distributed in the ratio of 1:1 between the first house and the second house of the deceased;b.That, thereafter, the ½ share of Kakamega/Mautuma/3, devolving upon the first house, shall be shared equally between Hesborn Chavatuzi Busolo, Ernest Lugasi Busolo, Amos Mudave Busolo, Fredrick Luga Busolo, Seth Vosena Busolo, Evans Liyai Busolo, Gladys Imali Busolo, Margaret Alividza Kilaini, Ruth Kahenda Busolo and Pamela Izavi Busolo, in accordance with Section 38 of Laws of Succession Act;c.That the ½ share of Kakamega/Mautuma/3, earmarked for the second house, shall first devolve upon the widow, Selina Mideva Kilaini, during her lifetime, to hold in trust for her children, and thereafter, upon termination of life interest, it shall devolve upon Solomon Kihonji Ainea, Alfred Naligu Busolo, Florence Vodembeka, Rose Imali, Mary Kaziga, Rabecca Sambili, Kezia Vihenda Kilaini, Everlyne Kayasi Busolo and Nancy Muhonja Kilaini equally, according to section 35(1)(5) of the Law of Succession Act;d.That a certificate of confirmation of grant shall issue in those terms;e.That the administratrix has 6 months, from the date of this judgment, to cause transmission of the estate in terms of the provisions of the Land Registration Act, No. 2 of 2012 and the Land Act, No. 6 of 2012;f.That the matter shall be mentioned after 6 months for compliance, further directions, and or closure of the court file herein;g.That each party shall bear their own costs, andh.That any party aggrieved by these orders, has leave of 28 days, to move the Court of Appeal, appropriately.

45. It is so ordered.

DELIVERED, DATED AND SIGNED IN OPEN COURT AT KAKAMEGA THIS 29TH DAY OF JULY 2022W M MUSYOKAJUDGEMr. Erick Zalo – Court Assistant,Mr. Athung’a Instructed by Athung’a & Company, Advocates for The AdministratrixMr. Kuria, Instructed by TM Kuria & Company, Advocates for The Protestor.