[2022] KEHC 11732 (KLR)

In The Matter of The Estate of Abraham Owori Mulama (Deceased) (Succession Cause 251 of 1997) [2022] KEHC 11732 (KLR) (13 May 2022) (Ruling)

Neutral citation: [2022] KEHC 11732 (KLR)

Republic of Kenya

In the High Court at Kakamega

Succession Cause 251 of 1997

WM Musyoka, J

May 13, 2022

IN THE MATTER OF THE ESTATE OF ABRAHAM OWORI MULAMA (DECEASED)

Ruling

1. The application for determination is the summons dated January 18, 2021. The same seeks substitution of an administrator who has died, and redistribution of the estate. The said administrator died on November 19, 1998. The redistribution is sought on grounds that the original beneficiaries have died, hence their shares should be shared out amongst their survivors.

2. There are replies to the application. One is by Geoffrey Makau. He swore his affidavit on July 7, 2021. He avers that the proper course of action should have been to have the assets devolved to the respective estates of the dead beneficiaries, to be distributed in causes to be initiated in those estates. He also avers that there is an adequate number of administrators in office and there is no need for an additional number.

3. The other response is by Elizabeth Mulama, Grace Amanya Mulama, Mary Otengo Mulama, Patricia Shangila Mulama, Christine Noel Mulama and Jedidah Amukoya Mulama, through their affidavit sworn on July 7, 2021. They are all daughters of the deceased. They aver that they were not notified, consulted or involved in the instant succession cause and the confirmation proceedings, despite the law requiring their consent and involvement being mandatory. The complain that they were not even mentioned or allocated shares in the estate of their father, apparently on account of being daughters or women. They would like to have the distribution revisited.

4. The last response is by Valeria Mulama, by her affidavit sworn on July 7, 2021. She is a widow of the deceased. She would like herself and the applicant to be appointed as the administratrices to substitute the dead administratrix. She also supports redistribution, principally on grounds that some of the children were not considered at distribution or confirmation. She would like the entire distribution set aside and vacated to cater for the interests of all the children of the deceased in a fresh distribution.

5. The parties opted to canvass the application by way of written submissions. I have seen written submissions by two of the parties. I have read through them and noted the arguments made. The parties have not cited any statutory provisions or case law to support their respective cases.

6. The deceased herein died on September 20, 1996. Representation in testacy was sought herein in a petition dated July 30, 1997, on the basis that the deceased had died testate having made a will on an unknown date, which was placed on record. The petition for probate was gazetted on August 22, 1997, but a grant of probate was not issued, instead a grant of letters of administration intestate was made on November 24, 1997, to Francis Kadima, Michael Malala and Geoffrey Makau. That grant was confirmed on November 26, 1998, and Marama/Shinamwenyuli/146 was devolved upon Francis Kadima, Michael Malala and Geoffrey Makau. A certificate of confirmation of grant was duly issued, dated November 26, 1998. There is another certificate of confirmation of grant dated 28th May 1999, which indicates that the two assets Marama/Shinamwenyuli/146 and N. Wanga/Matungu/46 was shared equally between Francis Kadima, Michael Malala and Geoffrey Makau.

7. Although the grant was confirmed in 1998/1999, it would appear that the administrators did not complete administration of the estate, by having the assets transmitted to the names of the beneficiaries. No explanation has been offered for that failure. It would appear that some of the beneficiaries have died, and it would appear that an effort is now being made to have these beneficiaries replaced by their survivors by way of substitution. I would agree with the surviving administrator, Geoffrey Makau, that substitution of the survivors would amount to conducting a succession within another succession, or an administration within another administration. The way out should be for the survivors of the beneficiaries of the distribution done in 1998/1999, who have passed, to initiate causes in the estates of those dead beneficiaries, for distribution amongst the persons who have survived them.

8. The application for substitution of the dead administrators should be more straightforward. An administrator has died. He can be substituted. Two of his surviving spouses are vying for appointment. Widows have prior right to administration over the children, and, therefore, the two widows should be appointed.

9. The next issue is about the daughters of the deceased who were not involved in the entire process. That is to say Elizabeth Mulama, Grace Amanya Mulama, Mary Otengo Mulama, Patricia Shangila Mulama, Christine Noel Mulama and Jedidah Amukoya Mulama. I have closely perused the documents that initiated this cause, Elizabeth Mulama, Grace Amanya Mulama, Mary Otengo Mulama, Patricia Shangila Mulama, Christine Noel Mulama and Jedidah Amukoya Mulama are not in those lists. I have not seen any contest to their claim that they are children of the deceased. The deceased died in 1996, long after the Law of Succession Act, Cap 160, laws of Kenya, had come into force. He died intestate, and under section 2(1) of the Law of Succession Act, his estate is for distribution in accordance with Part V of the Act. As he was survived by widows and children, the relevant provisions would be sections 35, 38 and 40 of the Law of Succession Act. Part V is gender blind. It envisages equal distribution of the estate between sons and daughters. There is no discrimination. That would then mean that all the children of the deceased, sons and daughters, married and unmarried, should be involved in the succession process, and the estate of their parents should be shared equally amongst all the children regardless of gender, unless any of the children waive or renounce or forgo their entitlement. The renunciation must be by the children themselves, and it should not be up to any other survivor of the deceased to decide for them.

10. It is clear from the record, and it is not disputed, that Elizabeth Mulama, Grace Amanya Mulama, Mary Otengo Mulama, Patricia Shangila Mulama, Christine Noel Mulama and Jedidah Amukoya Mulama were left out of the process, and were disinherited. That runs counter to the spirit of the Law of Succession Act. The court upholds the law, and should not countenance or condone a situation which breaches the law by excluding daughters from the succession process. The disinheritance of the daughters flies in the face of Article 27 of the Constitution, which outlaws discrimination based on gender. The distribution of 1998/1999 should, therefore, not allowed to stand. The distribution exercise must be redone, in a process that will involve Elizabeth Mulama, Grace Amanya Mulama, Mary Otengo Mulama, Patricia Shangila Mulama, Christine Noel Mulama and Jedidah Amukoya Mulama.

11. The final orders that I shall make in the circumstances are as follows:(a)That Valeria Mulama and Adelaide Khisa Mulama are hereby appointed administratrices of the estate of the deceased in substitution of the late Michael Malala, to be co-administrators with Francis Kadima and Geoffrey Makau;(b)That a fresh grant of letters of administration intestate shall issue to the four administrators accordingly;(c)That the orders that were made on November 26, 1998 confirming the grant of November 18, 1997, and onMay 28, 1999amending the certificate issued, are hereby set aside and vacated, and the said certificate cancelled;(d)That upon the said orders being vacated and the certificate cancelled, the administrators shall apply afresh for distribution of the property herein, in a process that shall involve all the survivors of the deceased, including Elizabeth Mulama, Grace Amanya Mulama, Mary Otengo Mulama, Patricia Shangila Mulama, Christine Noel Mulama and Jedidah Amukoya Mulama;e.That Elizabeth Mulama, Grace Amanya Mulama, Mary Otengo Mulama, Patricia Shangila Mulama, Christine Noel Mulama and Jedidah Amukoya Mulama shall be provided for equally with the sons of the deceased, unless they renounce, of their freewill, their entitlement or opt to settle for less;(f)That application for confirmation of grant shall be filed in the next forty-five days;(g)That the matter shall be mentioned thereafter for that purpose; and(h)That each party shall pay their own costs.

DELIVERED, DATED AND SIGNED IN OPEN COURT AT KAKAMEGA ON THIS 13THDAY OF MAY, 2022WM MUSYOKAJUDGEErick Zalo, Court AssistantMr. Iddi, instructed by Nandwa & Co., Advocates for the applicant.Mr. Akwala, instructed by Akwala & Company, Advocates, for the objector.