[2022] KEHC 11737 (KLR)

In re the Estate of Pius Tembete Kwayiya alias Tembete Kwayiya (Deceased) (Succession Cause 400 of 2002) [2022] KEHC 11737 (KLR) (13 May 2022) (Ruling)

Neutral citation: [2022] KEHC 11737 (KLR)

Republic of Kenya

In the High Court at Kakamega

Succession Cause 400 of 2002

WM Musyoka, J

May 13, 2022

IN THE MATTER OF THE ESTATE OF PIUS TEMBETE KWAYIYA alias TEMBETE KWAYIYA (DECEASED)

Ruling

1. On April 30, 2020, I postponed the summons for confirmation of grant, dated April 17, 2015, and gave directions that the administrators file a further affidavit to disclose the names of the two daughters of the deceased, and make provision for the said daughters. There was an alternative, that the said two daughters file documents renouncing or waiving their entitlement to a shares in the estate, should they be so minded.

2. Since then, two documents have been lodged at the registry.

3. The first is an affidavit by Kurispinus Simiti Tembete, sworn on August 23, 2021. I do not quite understand the purport of the affidavit, for I had not directed him to file further evidence. The useful information given in it is that Butsotso/Ingotse/212 measures 6. 5 acres, and that he and his siblings had agreed that 4 acres thereof be shared equally between Desterio Salamba Tembete, Kurispinus Tembete, Yakim Lusaba Tembete and Dismas Munyovi Tembete, and the balance of 2. 5 acres, be given to himself, Kurispinus Simiti Tembete. The affidavit is not signed by anyone else, and there is no consent document executed by his siblings to support the averments in the affidavit.

4. The second is a joint affidavit, sworn by Filita Mutondo Tembete and Shikuku Josinah Masisa, the two daughters of the deceased, the subject of the ruling dated April 30, 2020. They aver that they are married and reside with their husbands, and are aware of the succession cause. The state that they have no objection to the confirmation application, saying that the distribution proposed was aligned to that done by the deceased during his lifetime, which they acknowledged and respected. They said that they had their own property, where they resided, and that they were relinquishing any claim to the property to be inherited. They say that they did not feel left out or disinherited. They further aver that they had not been coerced or threatened or forced or harassed to make the decision to wave the rights.

5. As it is, the distribution proposed by the administrators, has the support of three of the four sons and the two daughters, while Kurispinus Simiti Tembete appears to be alone. The administrators say that their proposal is aligned to the alleged inter vivos distribution by the deceased. Kurispinus Simiti Tembete would like his three brothers to take 1 acre each, leaving him with 3. 5 acres. He has not given any reason why he should take a lion’s share of the estate.

6. I have already ruled that there is no material before me, which suggests that there was an inter vivos distribution, for the deceased had not subdivided the land, with the consent of the relevant land control board, and he never made any efforts to transfer the same to the children. Whatever the deceased might have intended, and done on the ground, did not amount to distribution. See In re Estate of Gedion Manthi Nzioka (Deceased) [2015] eKLR (Nyamweya J) and In re Estate of M’Ikunyia M’Muriithi [2019] eKLR (Mabeya J). The court is not bound to stick to that, it should distribute the land in accordance with part v of the Law of Succession Act, cap 160, Laws of Kenya, unless there is concurrence amongst the beneficiaries to distribute in a manner that departs from those provisions.

7. In Justus Thiora Kiugu & 4 others vs. Joyce Nkatha Kiugu & another [2015] eKLR (Visram, Koome & Otieno-Odek JJA), it was said that the estate of an intestate could not legally be distributed in any other way other than by the parties agreeing amongst themselves, and filing a consent, or by the court following the provisions of the Law of Succession Act on intestate distribution. It was stated that where the parties were in total agreement, the court would have no choice but to adopt the consent placed before it, in the absence of which there would be no discretion but to distribute the estate as per the provisions of the Law of Succession Act. It was said in, In re Estate of Juma Shiro (deceased) [2016] eKLR (Mwita J), that where the beneficiaries have not agreed on the mode of distribution, the court would resort to the provisions of the Law of Succession Act to resolve the issue.

8. In the instant case, there is no total agreement on the mode of distribution, for one section of the beneficiaries have a proposal different from the other section, never mind that one side comprises of only one beneficiary. As there is no total agreement, and going by the principle stated 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), I shall disregard the proposals and distribute the estate strictly in terms of the provisions of the Law of Succession Act.

9. The deceased died intestate in 1996, after the Law of Succession Act had come into force in 1981. His estate is, therefore, fully subject to the Law of Succession Act, and part v thereof in particular. He died possessed of Butsotso/Ingotse/212, measuring 6. 5 acres. The deceased had six children, two of them being daughters, who have renounced their entitlement to a share in the estate. That leaves four sons. Section 38 of the Law of Succession Act provides for how property of an intestate is to be shared out amongst the children, equally.

10. For avoidance of doubt section 38 says:“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 … devolve upon the surviving child, if there be only one, or be equally divided among the surviving children.”

11. The final order, therefore, is that Butsotso/Ingotse/212 shall devolve equally upon Desterio Salamba Tembete, Kurispinus Tembete, Yakim Lusaba Tembete and Dismas Munyovi Tembete. The grant is confirmed in those terms. A certificate of confirmation of grant shall issue accordingly. Each party shall bear their own costs. A date shall be given at the delivery of this ruling, for mention, when the administrators shall come back to court to confirm that they had finalized distribution and transmission of the estate. Any party aggrieved has leave of twenty-eight days, to move the court of Appeal appropriately. It is so ordered.

DELIVERED, DATED AND SIGNED IN OPEN COURT AT KAKAMEGA THIS 13TH DAY OF MAY 2022WM MUSYOKAJUDGEMr. Erick Zalo, Court Assistant.Mr. Tanui, instructed by Samba & Co., Advocates, for the applicants.Mr. Kurispinus Simiti Tembete, in person.