[2022] KEHC 13496 (KLR)

In the matter of the Estate of Johana Ochesa Mbeba (Deceased) (Succession Cause 241 of 1999) [2022] KEHC 13496 (KLR) (23 September 2022) (Judgment)

Neutral citation: [2022] KEHC 13496 (KLR)

Republic of Kenya

In the High Court at Kakamega

Succession Cause 241 of 1999

WM Musyoka, J

September 23, 2022

Judgment

1. The cause herein relates to the estate of Johana Ochesa Mbeba alias Johana Ocheso Mbeba, who died on October 7, 1981. The letter of the chief of Matungu location, dated November 18, 2019, states that he was survived by 2 widows, being Pascilisa Aloo and Getrude Athiambo Ocheso; and 5 sons, being John Wesonga, Patrick Wesonga, Saverio Talale, Peter Juma and Peter Otsieno; and 3 daughters of Grato Otenyo, being Teresina Makokha Otengo, Juliana Ashiku and Wilbroda Naliaka. The deceased was said to have died possessed of Mayoni/467; and the daughters of Grato Otenyo Mbeba are listed because their father’s land was included in the parcel.

2. Representation in the cause was sought by Wilbroda Naliaka Chicholi, in her capacity as niece of the deceased, through a petition lodged herein on December 4, 2000. The deceased is said to have been survived by the individuals mentioned in the chief’s letter, being 2 widows, 5 sons and 3 nieces. He is said to have died possessed of N Wanga/Mayoni/467. The petitioner, Wilbroda Naliaka Chicholi, averred that her father, the late Kiriado Otenya Ombeba, the elder brother of the deceased, was entitled to 10 acres out of N Wanga/Mayoni/467, and explained that he had been the first registered proprietor of that parcel of land. She further explained that she had cited the widows of the deceased, but they had failed to petition for representation, hence she picked up the mantle. Letters of administrations intestate were made to Wilbroda Naliaka Chicholi on June 4, 2001, and a grant was duly issued, dated June 22, 2001.

3. A summons for revocation of grant, dated November 27, 2001, was filed, seeking revocation of the grant made on June 4, 2001. The application was at the instance of John Wesonga Ocheso, Patrick Tom Ocheso, Severio Ocheso, Peter Juma Ocheso, and Peter Otsieno Ocheso. The grant was revoked by the court on July 4, 2012, without a formal hearing, and it was directed that a fresh grant be made to Wilbroda Naliaka Chicholi, John Wesonga Ocheso and Patrick Tom Wesonga. It was further directed that the new administrators apply for confirmation of their grant, and the matter was to be thereafter heard viva voce. A grant was subsequently duly issued to the new administrators, dated July 6, 2012.

4. The summons for confirmation of grant was filed on November 23, 2012, by Patrick Tom Wesonga, who I shall refer to hereafter as the applicant. He has listed the survivors of the deceased as 6 children, being Patrick Tom Wesonga, Peter Otsieno Ocheso, Severio Mbeba Ocheso, John Wesonga Ocheso, the late Peter Juma Wamaya and Josephine Antsetse Juma. Curiously, Wilbroda Naliaka Chicholi, though not listed as a survivor, is included in the schedule of distribution of North Wanga/ Mayoni/467, with the explanation that she was a niece of the deceased, being a daughter of Karato Otenyo Mbeba and was not entitled to a share in the estate. It is not disclosed, but I suppose that Josephine Antsetse Juma is the widow of the late Peter Juma Wamaya. North Wanga/Mayoni/467 is proposed for equal distribution between Patrick Tom Wesonga, Peter Otsieno Ocheso, Saverio Mbeba Ocheso, John Wesonga Ocheso, and Josephine Antsetse Juma. There is a form 37, that was filed simultaneously with the summons, signed by Patrick Tom Wesonga, Peter Otsieno Ocheso, Saverio Mbeba Ocheso, and Josephine Antsetse Juma, but not by John Wesonga Ocheso.

5. The summons dated November 23, 2012 has attracted several protests.

6. One of the protests is by John Wesonga Ocheso, vide an affidavit that he swore on June 28, 2013. He avers that the elder brother of the deceased, called Otenyo Mbeba, was the first registered proprietor of North Wanga/Mayoni/467. The late Otenyo Mbeba then invited the deceased to stay with him on the land in 1964. At that time the deceased lived on the land with his 3 daughters, who are said to be still alive, being Julius Washiku Tomasi, Teresina Makokha Bwire and Wilbroda Naliaka Chichole. The late Otenya Mbeba died in 1974 and was survived by 4 daughters. The name of the fourth daughter is not disclosed. He avers that after the demise of Otenya Mbeba, the deceased herein took care of the said daughters of Otenyo Mbeba, who all got married and moved out of North Wanga/Mayoni/467, with Wilbroda Naliaka Chicholi being the last to move out in 1977. He avers that as at the date of the demise of the deceased herein, North Wanga/Mayoni/467 was still registered in the name of Otenyo Mbeba. He avers that the property, North Wanga/Mayoni/467, was transferred, in 1979, to the name of the deceased herein, by a process which was not proper, for the deceased was not a child of Otenya Mbeba. He avers that the deceased only had a life interest in North Wanga/Mayoni/467, which land should revert to the children of Otenyo Mbeba. He protests that the children of Otenya Mbeba, who are the rightful beneficiaries, had been left out, yet the deceased herein only held North Wanga/Mayoni/467 in trust for the said children. He proposes that North Wanga/Mayoni/467 be shared out equally between the late Otenyo Mbeba and the deceased, so that each estate taken 10 acres. He proposes that thereafter the share for the late Otenyo Mbeba be shared equally between the 3 daughters of the deceased, being Wilbroda Naliaka Checholi, Teresina Makokha Bwire and Juliana Washiku Tomasi; while the share of the deceased herein is shared equally between John Wesonga Ocheso, Patrick Tom Wesonga, Peter Otsieno Ocheso, Saverio Mbeba Ocheso, and Josephine Antsetse Juma. I shall refer to John Wesonga Ocheso hereafter as the 1st protestor.

7. The second protest is by Wilbroda Naliaka Checholi. Her affidavit was sworn on June 28, 2013. It mirrors, in content, the facts deposed in the affidavit of John Wesonga Ocheso, and makes the same or similar proposals on distribution of North Wanga/Mayoni/467. The affidavits of protests by Julius Washiku Tomasi and Teresina Makokha Bwire were sworn on October 25, 2012. They both support the facts set out in the affidavit of Wilbroda Naliaka Checholi, and her proposals on distribution. I shall refer to Wilbroda Naliaka Checholi, Julius/Juliana Washiku Tomasi and Teresina Makokha Bwire as the 2nd, 3rd and 4th protestors.

8. Directions on the disposal of the summons for confirmation of grant, dated November 23, 2012, were initially made on July 4, 2012, and I reiterated them on November 13, 2018.

9. The oral hearings commenced on March 22, 2021. The 1st protestor was the first on the witness stand. He testified that North Wanga/Mayoni/467 belonged to his uncle, Otenyo Mbeba, a brother of the deceased, and it was he who invited the deceased to the land, and the deceased moved his family from Busia into North Wanga/Mayoni/467. The two families then lived on the land. The 2 brothers did not share or divide the land. The late Otenyo Mbeba was said to have had 4 daughters, being Selefina Nyakuti, Teresina Makokha Bwire, Julias Washiku Tomasi and Wilbroda Naliaka Checholi. The deceased was said to have had married 5 wives, and had 5 sons. 3 sons were from the first house, being John Wesonga Ocheso, Patrick Tom Wesonga and Peter Juma Ocheso. Peter Otsieno Ocheso and Saverio Mbeba Ocheso were from other houses. Josephine Antsetse Juma was described as the widow of the Peter Juma Ocheso. He testified that the late Otenyo Mbeba had called his daughters and the deceased, and told the deceased that the land be shared equally between him and the deceased herein, so that both families get shares in the land. He stated that after Otenyo Mbeba died, the deceased herein transferred North Wanga/Mayoni/467 to his name, without involving the daughters of Otenyo Mbeba. He said that he wanted the estate to be shared out as Otenyo Mbeba desired. He asserted that the estate of the deceased was entitled to 10 acres, with the other 10 acres going to Otenyo Mbeba. He further testified that, before the deceased died, he had reiterated what Otenyo Mbeba had said. He said that the deceased had daughters. He named some as Wilfrida, Jackline Nafula, Rose Mukele, Praxedes Ayombi, Juliet Nyongesa and Everlyne Anyango.

10. The 2nd protestor, Wilbroda Naliaka Checholi, testified next. She explained that her father, Otenyo Mbeba, lived in Busia. His family was chased away from there. His father-in-law, that is her maternal grandfather then gave him land to settle his family. Otenyo Mbeba the invited his brother, the deceased herein, to join him on the land. She testified that before Otenyo Mbeba died, he called her and her sisters, John Wesonga Ocheso and the deceased herein, and instructed the deceased to share the land equally between them, so that Otenyo Mbeba’s daughters got 10 acres, while the deceased retained the other 10 acres. Similarly, when the deceased herein was on the verge of death, he called them, and reiterated the instructions by Otenyo Mbeba. She stated that the deceased herein did not do as Otenyo Mbeba had instructed, for he caused the land in question to be transferred to and registered in his name.

11. Gerald Mwakha Nakhungu and James Mwakha Nakhungu testified next. Both were born in the 1980s, and testified on matters that happened long before they were born, and after the deaths of the key players, Otenyo Mbeba and the deceased herein.

12. The case for the applicant opened on September 28, 2021. He asserted that North Wanga/Mayoni/467 did not belong to Otenyo Mbeba, saying that the deceased had bought it. He further said that the deceased had not said that the same be shared equally. He said both sides should not share the land at 10 acres each. He asserted that the deceased went through the due process of registration of the land. He said the land had been registered initially in the name of Otenyo Mbeba, as caretaker for the deceased. He stated Otenyo Mbeba caused himself to be registered as proprietor during the land adjudication process. He stated that the deceased went through a succession process, presumably after Otenyo Mbeba died, which was objected to by Vivian, and the court ruled in favour of the deceased. He asserted that Otenyo Mbeba had not been given the land. He asserted that it was the children of the deceased who were in possession. He said he was born in 1978, and the deceased died while he was 3 years old. He said that, although the deceased had bought the property, he did not have any agreement to show the court.

13. Michael Wanzala Kwena followed. He was the chairman of the sub-clan to which the parties belonged. He said that he was born in 1956. He stated that the deceased had bought the land from a Chitayi Okonga, but the property was first registered in the name of Otenyo Mbeba. He explained that in those days agreements were not reduced into writing.

14. The application before me is for confirmation of the grant. At confirmation, two things happen. One, the administrators are confirmed. Two, the assets are or the estate is distributed. What is distributed are the uncontested assets of the estate. Property that is encumbered; or not registered in the name of the deceased, even though he bought it; or property whose ownership or title is contested, is not available for distribution. For encumbered assets, the administrators are obliged to clear the encumbrances before they present the assets for distribution. For assets that the deceased bought, but the same had not yet been transferred to or registered in his name by the time of his death, the administrators are obliged to perfect the titles before they present the same for distribution. That can be done by having the same transferred to the name of the estate or the administrators. For assets whose titles are contested by other parties, the same should not be presented for distribution, before the issue of ownership is resolved.

15. North Wanga/Mayoni/467 is a contested property. There is a dispute as to whether it belongs to the estate herein or whether it was held by the deceased on behalf of the family of Otenyo Mbeba. The applicant argues that the deceased had bought the property, and that Otenyo Mbeba was just a caretaker, who caused the land to be registered in his name. The protestors, on the other hand, argue that the late Otenyo Mbeba was given the land by his in-laws and invited the deceased to the land, but the land was registered in the name of Otenyo Mbeba. It was his land, and the deceased only got registered as proprietor, after the death of Otenyo Mbeba, in ways that were questionable. They argue that the deceased held the land in trust for the family of Otenyo Mbeba. The issue to be determined is whether North Wanga/Mayoni/464 belongs to the deceased, and was, therefore, estate property, available for distribution, or whether the deceased held it in trust for the family of Otenyo Mbeba, and is not, strictly speaking, estate property, although the family of Otenyo Mbeba is ready to share it with the family of the deceased. The ownership of the asset is, therefore, contested, and I cannot distribute it before I determine the question of ownership.

16. A question of jurisdiction should naturally arise. Do I, as a judge of the High Court, have jurisdiction to determine ownership of or the status of the property? I do not think so. The Constitution, at article 165(5), states that the High Court has no jurisdiction to entertain questions relating to title, user and occupation of land. The issue before me, relating to North Wanga/Mayoni/464, turns on ownership of or title to land. By dint of article 165(5) of Constitution, the High Court, even when sitting as a probate court, has no jurisdiction to determine the ownership status of North Wanga/Mayoni/464. That jurisdiction lies with the Environment and Land Court, by virtue of article 162(2) of the Constitution.

17. Articles 162(2) and 165(5) of the Constitution provide as follows:“162 (2) Parliament shall establish courts with the status of the High Court to hear and determine disputes relating to —(a)…(b)the environment and the use and occupation of, and title to, land.”“165 (5) The High Court shall not have jurisdiction in respect of matters —(a)…(b)falling within the jurisdiction of the courts contemplated in article 162 (2).”

18. Secondly, courts have held that highly contested questions on status of property, particularly between the estate and third parties, are not for determination within a succession cause. That is so as the mandate of the probate court is to distribute assets and not to determine questions of ownership. A probate court is not also a land court. Where questions arise relating to such questions, within a probate cause, the issue ought not be determined within the succession or probate cause, but the property or asset should be appropriated or set aside from the schedule of the assets, pending determination of the question in separate proceedings. That is provided for in rule 41(3) of the Probate and Administration Rule, which states as follows:“Where a question arises as to the identity, share or estate of any person claiming to be beneficially interested in, or of any condition or qualification attaching to, such share or estate which cannot at that stage be conveniently determined, the court may prior to confirming the grant , but subject to the provisions of section 82 of the Act, by order appropriate and set aside the particular share or estate or the property comprising it to abide the determination of the question in proceedings under order xxxvi, rule 1 of the Civil Procedure Rules and may thereupon, subject to the proviso to section 71 (2) , proceed to confirm the grant.”

19. Thirdly, the courts have also weighed in on the issue of trust over land arising in succession causes. It was stated, in In Re Estate of Kimani Kinuthia [2008] eKLR (Ibrahim J), that determination of questions as to whether assets, placed before the court for distribution, are held in resulting trust, is not a question that a probate court could determine, and that the best approach would be have issue determined in separate proceedings. The ideal position, in this case, would be for a civil suit to be initiated by either estate herein against the other estate, to determine the question of ownership of North Wanga/Mayoni/464. See also In re Estate of Richard Karanja Javan[2014] eKLR (Musyoka J), In Re Estate of James Muiruri Kamau (Deceased)[2018] eKLR (Ndung’u J) and In re Estate of Henry Njau Ngotho (Deceased) [2020] eKLR (Muchelule J),

20. So, in terms of jurisdiction, I should state that I should not proceed to determine the question as to whether North Wanga/Mayoni/464 is estate property or is held in trust for two reasons. One, because I have no jurisdiction, in view of article 165(5) of the Constitution. Two, because the probate suit is not the best forum to determine such questions. I shall, accordingly, not venture into these questions, and I shall direct the parties, in terms of rule 41(3) of the Probate and Administration Rules, to place the matter before another court, for their determination.

21. Confirmation of grants is provided for in section 71 of Laws of Succession Act, cap 160, Laws of Kenya. I focus specifically on the proviso to section 71(2) of the Law of Succession Act and rule 40(4) of the Probate and Administration Rules. These provisions require that the administrators ascertain the persons beneficially interested in the estate, and also ascertain the share of each of those beneficiaries. It was said, in In the Matter of the Estate of Ephrahim Brian Kavai(Deceased) Kakamega HCSC No 249 of 1992 (Waweru J) (unreported), that the two provisions require that the court be satisfied that the ascertainment has been done. It was held that where the court is not so satisfied, it should not proceed to distribute the estate before there is compliance with the proviso to section 71(2) of the Law of Succession Act and rule 40(4) of Probate and Administration Rules. See also In re Estate of Robert Mungai Gichinji (deceased)[2016] eKLR (Musyoka J) and In re Estate of Stanley Mwiti Ithera (deceased)[2017] eKLR (Gikonyo J).

22. Of course, I have held above that I will not distribute the estate before another court determines the status of ownership of North Wanga/Mayoni/464. That, however, does not stop me from determining whether or not the material placed before me satisfies me as to whether the persons beneficially entitled to a share in the estate have been ascertained and the shares due to them have also been ascertained. It is important to make that decision so as to guide the parties on what they need to do, once the matter shall be ripe for distribution, after the status of North Wanga/Mayoni/467 has been pronounced on by the other court, should the parties be minded to move that other court in that respect.

23. Have I been satisfied that the applicant has ascertained all the persons who are beneficially entitled to or interested in a share in the estate, and whether he has ascertained their shares? No. The deceased died on October 7, 1981, that was after the Law of Succession Act had come into force on July 1, 1981. The deceased died intestate, the estate, therefore, is to be shared out in accordance with part v of the Law of Succession Act. The courts have held that, by dint of section 2(1) of Law of Succession Act, customary law is of no application as it is ousted by that provision. See Rono v Rono & another[2005] 1 KLR (Omolo, O’Kubasu & Waki JJA),In Re the Estate of Harrison Gachoki (Deceased) [2005] eKLR (Okwengu J), In re Estate of Juma Shiro (Deceased)[2016] eKLR (Mwita J), In Re Estate of Gamaliel Otieno Onyiego (Deceased) [2018] eKLR (AJ Makau J, and In re Estate of Mbiyu Koinange (Deceased) [2020] eKLR (Muchelule J). African customary law is applicable in a limited number of cases and in a restricted number of regions, under sections 32 and 33 ofLaws of Succession Act , for assets situated in certain gazetted regions. Assets situated within Kakamega County do not fall under sections 32 and 33, and, therefore, customary law is of no application to assets of persons who dies resident within Kakamega. The estate herein is for distribution in accordance with part v of Law of Succession Act.

24. Sections 2(1) (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)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 and 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”

25. The applicant has disclosed only 5 children of the deceased. It emerged, at the oral hearing, that the deceased had 5 wives. It means that he died a polygamist. That would bring the estate within section 40, which is in part v of the Law of Succession Act. The applicant did not disclose that, yet the estate ought to be distributed under that provision. The applicant should have grouped the estate according to the 5 houses. Crucially, it was disclosed, at the oral hearing, that the deceased had daughters, and at least 5 of them were named. Daughters are children of the deceased. Part v of the Law of Succession Act provides for distribution amongst the “children.” The said law does not categorize the “children” into male or female, sons or daughters, married or unmarried. That then means that all the children should be disclosed, because the distribution should be to all the children of the deceased, unless some of them opt out of the distribution, through renunciation or waiver. Sections 35(5) and 38 of Law of Succession Act are clear on this. To the extent that the applicant has not disclosed, in his application, that the deceased died a polygamist and had daughters, there is no proper ascertainment of the persons beneficially entitled or interested in the estate. It would also mean that the shares of the persons beneficially entitled have not been properly ascertained. Consequently, the proviso to section 71(2) of Law of Succession Act and rule 40(4) of Probate and Administration Ruleshave not been complied with. The grant ought not be confirmed until there is full compliance.

26. For avoidance of doubt, sections 35(5), 38 and 40 of the Laws of Succession Act provide as follows:“35(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.”“38 Where 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.”“40 (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. ”

27. I believe that I have said enough to demonstrate that the application dated November 23, 2012 is premature, for the reasons given. Let the administrators address the issues raised in this judgment at paragraphs 21, 22, 23, 24 and 25, before the application is re-listed for consideration. Regarding the issues raised in paragraph 20, the matter shall be mentioned after 1 year, to allow the parties to comply.

28. In case anyone is aggrieved with the outcome above, there is leave of 28 days to challenge the same at the Court of Appeal.

RULING IS DELIVERED, DATED AND SIGNED IN OPEN COURT AT KAKAMEGA THIS 23RD DAY OF SEPTEMBER 2022WM MUSYOKAJUDGEMr. Erick Zalo, Court Assistant.Mr. Akwala, instructed by Akwala & Company, Advocates for the applicant.Ms. Masakhwe, instructed by Gabriel Fwaya, Advocate for the protestors.