[2022] KEHC 9971 (KLR)

Kameikin v Limangole & another (Succession Cause 2 of 2018) [2022] KEHC 9971 (KLR) (13 July 2022) (Judgment)

Neutral citation: [2022] KEHC 9971 (KLR)

Republic of Kenya

In the High Court at Kapenguria

Succession Cause 2 of 2018

WK Korir, J

July 13, 2022

IN THE MATTER OF THE ESTATE OF TALAPCHONU KAMEIKIN (DECEASED)

Between

Susan Chebet Kameikin

Protestor

and

Silas Rotich Limangole

1st Respondent

John Charito Limangole

2nd Respondent

Judgment

1. Through the summons dated 2nd April, 2019, Silas Rotich Limangole, applied for confirmation of the grant issued on 30th October, 2018 to himself as the 1st Administartor, John Charito Limangole (the 2nd Administartor) and Susan Chebet Kameikin (the 3rd Administrator and the Protestor herein) in respect to the estate of the deceased Talapchonu Kameikin. He swore an affidavit in support of the application in which he proposed that the deceased’s two parcels of land in Siyoi and Kishaunet be shared out in the following manner:i.1st house-23 acres of West Pokot/Kishaunet/283 and 4 acres of West Pokot/Siyoi ‘A’/146;ii.2nd house-23 acres of West Pokot/Kishaunet/283 and 4 acres of West Pokot/Siyoi ‘A’/146;iii.3rd house-23 acres in West Pokot/Kishaunet/283 and 4 acres in West Pokot/Siyoi ‘A’/146;iv.Rhoda Kakuko Domongole-1 acre of West Pokot/Siyoi ‘A’/146; andv.Gladys Cherop Dixon-1 acre of West Pokot/Siyoi ‘A’/146.

2. In an affidavit of protest sworn on 21st June, 2019, the Protestor opposed the summons for confirmation of the grant of letters of administration. She averred that the 1st Administrator’s proposed mode of distribution did not take into consideration the existing circumstances. She also averred that she was acting on the authority of the beneficiaries from the 3rd house. She further deposed that the proposed distribution had omitted one Teresia Chemwetich from the list of beneficiaries while including the names of Rhoda Kakuko and Gladys C. Dickson who are not among the beneficiaries of the estate of the deceased. She additionally averred that during the lifetime of the deceased, the 1st and 2nd houses lived on the farm in Kishaunet measuring 69 acres while the 3rd house lived on the land in Siyoi which is 14 acres. She urged the Court to find that the deceased had prior to his death organized his family hence the decision of the deceased should be maintained.

3. The Protestor consequently proposed that the estate of the deceased be distributed as follows:i.1st house-34. 5 acres of parcel number West Pokot/Kishaunet/283;ii.2nd house-34. 5 acres of parcel number West Pokot/Kishaunet/283; andiii.3rd house-14 acres in West Pokot/Siyoi ‘A’/146 to be distributed as follows:a.Pauline Liopot- 2 acresb.Susan Chebet Kamekin- 8. 331 acresc.Teresia Chemwetich- 4 acres.

4. The 1st Administrator swore a supplementary affidavit on 19th August, 2019 in which he reiterated the contents of the affidavit in support of the summons for confirmation of the grant of letters of administration. He averred that Teresia Chemwetich was their sister and that her share was well taken care of. He also denied having discriminated against the 3rd house further averring that the provision for Rhodah Kakuko and Gladys C. Dickson was informed by the oral will of the deceased.

5. This matter proceeded through viva voce evidence with the Protestor calling three witnesses. The respondents called one witness.

6. The Protestor testified as PW1 stating that she was a daughter to the deceased from the 3rd house. She stated that the deceased had three houses and two parcels of land being West Pokot/Kishaunet/283 and West Pokot/Siyoi ‘A’/146. She asked the Court to adopt her affidavit sworn on 21st June, 2019 as her evidence. She proceeded to testify that Pauline Liopot was her sister though not a biological daughter of the deceased. She further stated that Pauline Liopot stayed with them at Siyoi. Further, that Pauline left for her husband’s place from Siyoi and her dowry was paid to their father and mother. It was the Protestor’s testimony that she never heard the deceased say that Pauline was not his daughter. She proposed that the 3rd house remain on the land at Siyoi where they lived with their mother and that the other two houses inherit the Kishaunet land. She also produced the comparative productivity report for the two parcels of land as exhibit and urged the Court to consider the difference in acreage as compensatory to the difference in productivity.

7. On cross-examination, the Protestor testified that she was born in Kishaunet but they left for Siyoi when she was about two years of age. She stated that the third house had three daughters namely Pauline, Teresia and herself. Further, that the deceased was buried in Siyoi. She also stated that Rhoda Kakuko was a wife to her brother-in-law and a neighbour while Gladys Dickson was just a neighbour and the two were not beneficiaries of the estate of the deceased.

8. On examination by the Court, the Protestor testified that Andrew Rotich started to plough the land in Siyoi forcefully after the death of their mother.

9. Upon re-examination, the Protestor testified that their mother had no house in Kishaunet and that she was buried in Siyoi alongside the deceased.

10. Martina Cherotich testified as PW2 stating that the deceased was her neighbour. She further testified that she knew the deceased who had a wife and three daughters. Pauline was one of the three daughters. She asked the Court to rely on her written statement signed on 22nd October, 2019. In the statement, she averred that the deceased occupied his land in Siyoi alongside his 3rd wife and daughters. The witness also deposed that after the deceased died, the 3rd wife and her daughters continued to occupy the land until the death of the 3rd wife. According to the witness, it was only after the death of the 3rd wife, that Andrew Rotich sought to forcefully survey and utilize the land. Further, that prior to the deceased’s death, the respondents and their families never utilized the land.

11. On cross-examination, PW2 testified that she knew the deceased, who was a police officer, for about 30 years. She also stated that she only got to know Andrew Rotich when he had gone to survey the land at Siyoi and a quarrel ensued.

12. PW3 Emmanuel Pkech Pkobus testified that he knew the deceased had one wife and three daughters whom he lived with in Siyoi. He also testified that he was born in 1961 and he knew Pauline who was his age-mate. Further, that he had all along seen Pauline at the deceased’s home. PW3 told the Court it was the deceased who gave Pauline away in marriage.

13. PW3 also sought to rely on his statement written on 22nd October, 2019 where he averred that it was not until after the deceased and his wife passed away that the respondents sought to forcefully cultivate and survey the Siyoi land. He also testified that Rhoda Kakuko Domangole was a neighbour to the deceased and not a daughter of the deceased.

14. On cross-examination, PW3 testified that he knew the deceased for about 30 years. His evidence was that Susan Chebet was born in Siyoi but he was not sure whether Pauline was also born in Siyoi. He also testified that he was not aware that the deceased had a home in Kishaunet. According to PW3, it was only during the deceased’s funeral that he learned that the deceased had three wives. He further stated that he did not know if the deceased had distributed his estate during his lifetime. The witness also told the Court that he did not know of an elders’ meeting that had discussed the distribution of the deceased’s estate.

15. DW1 Andrew Rotich testified in support of the respondents’ case. He stated that the deceased had four wives with the 2nd and 3rd wives being deceased while the 4th wife was divorced and the 1st wife is alive. He stated that he was from the 2nd house and their mother Cheporwali Limangole had four children with the deceased and two others not belonging to the deceased. DW1 stated that the 1st house had one son and four daughters, the 3rd house had two daughters while the 4th house had no children.

16. DW1 testified that the land at Kishaunet measured 69 acres and was occupied by the 1st and 2nd houses while the 3rd house lived in Siyoi. He testified that prior to the demise of the deceased the wives and children lived peacefully. Further, that after the deceased passed away the family sold his cattle and used the proceeds to plaster the 3rd wife’s house. His testimony was that it was not until after the promulgation of the current Constitution that Rhoda and Gladys asked for a share of the land in Siyoi. The matter was referred to the chief who ruled that the two daughters born out of wedlock would have one acre each from the Siyoi land while the 1st, 2nd, and 3rd houses would get four acres each of that land. The witness further stated that the elders also decided that the Kishaunet land would be divided into three equal portions to be inherited by the three houses. The matter was then escalated to the Pokot Council of Elders which confirmed the decision of the chief.

17. DW1 also testified that a subsequent meeting was held at the County Commissioner’s office on 28th June, 2017 where it was agreed that a survey would be conducted on the land in Siyoi. He stated that by this time, he had been planting maize on 6 acres of the land. Further, that he did not object to the sale of a portion of the land at Siyoi by his step-sisters to one Mwalimu Tulin in 2018.

18. DW1 testified that all the other members of the family remained in Kishaunet when he was taken to Siyoi in 1970 or 1971 to stay with the workers. He stated that the deceased informed him that the land in Siyoi would belong to all his children. According to DW1, in 1991 the deceased called him alongside John and Silas and in the presence of elders informed them of their shares in the land at Siyoi. He also stated that the settlement of the three wives by the deceased was temporary. He conceded that the 2nd wife was buried in Kishaunet while the 3rd wife was buried in Siyoi. He also stated that the 3rd wife had two daughters with the deceased while Pauline was not a biological daughter of the deceased even though the deceased had taken her into his house and provided for her. He proposed that Rhoda and Gladys who were all indicated as beneficiaries of the deceased be given an acre each from the Siyoi land.

19. On cross-examination, DW1 testified that the deceased’s 3rd wife lived in Siyoi on a temporary basis and that Pauline came with the third wife and was not a daughter of the deceased. He also stated that he only cultivates 1 acre of the Kishaunet land as the same is not fertile.

20. The advocate for the Protestor filed submissions dated 30th May, 2022. First, he submitted that from the evidence on record, it is evident that there is animosity between the 1st and 2nd houses on the one hand and the 3rd house on the other hand. He urged this Court to let each family stay in its own land in view of this animosity.

21. Second, counsel submitted that the deceased had expressed his wish, as is evident from how he established homes for his wives, how his three wives should live and his wish ought to be respected by the Court.

22. Third, counsel for the Protestor submitted that except for the chief’s letter purporting to name Rhoda Kakuko and Gladys Dickson as the beneficiaries of the deceased, there is no evidence to support the claim that they were children of the deceased. Counsel urged this Court to reject the proposed inheritance of the two as they do not fall under the definition of a child provided by Section 3(2) of the Law of Succession Act. Counsel, nevertheless, submitted that should the Court find that the two are beneficiaries, then the Court should in exercising its discretion under sections 26 and 27 of the Law of Succession Act allocate them shares from the land in Kishaunet.

23. On the productivity of the two pieces of land, counsel for the Protestor urged this Court to find that both parcels are economically viable and that the land in Kishaunet is large hence compensating for the small discrepancy in productivity between the two parcels of land. This Court was consequently urged to adopt the Protestor’s mode of distribution.

24. The respondents’ advocate through submissions dated 14th June, 2022 submitted that under sections 35 and 40 of the Law of Succession Act, all the three houses are entitled to equal shares of the deceased’s estate. He relied on the case of In re Estate of Ndolo Mumo (Deceased) [2020] eKLR in support of this submission.

25. On the issue as to whether Gladys Dickson and Rhoda Kakuko are beneficiaries of the estate of the deceased, counsel for the respondents submitted that though born out of wedlock, the two are beneficiaries and should be provided for in the distribution of the estate. He urged this Court to rely on Section 29(a) of the Law of Succession Act to find that the two are indeed dependants of the deceased.

26. Upon consideration of the pleadings, the evidence and the submissions of the parties, I find that the answer the parties seek from this Court is whether Rhoda Kakuko and Gladys Dickson qualify as beneficiaries of the estate of the deceased. Another issue for the determination of this Court is the mode of distribution of the estate of the deceased.

27. I start by addressing the issue as to whether Rhoda Kakuko and Gladys Dickson are beneficiaries of the deceased’s estate. In his evidence, DW1 testified that the two were children of the deceased born out of wedlock. Their presence in this case is founded on the letter by the chief dated 6th July, 2017 indicating the beneficiaries of the estate of the deceased. The two are indeed listed in that letter as the beneficiaries of the estate of the deceased. Rhoda Kakuko and Gladys Dickson also took part in the negotiations that proceeded before the Pokot Council of Elders. It is, however, the Protestor’s case that the two individuals are not children of the deceased but neighbours. It is upon this set of facts that this issue has to be determined.

28. Section 3(2) of the Law of Succession Act defines a child as follow:“…"child" or "children" shall include a child conceived but not yet born (as long as that child is subsequently born alive) and, in relation to a female person, any child born to her out of wedlock, and, in relation to a male person, any child whom he has expressly recognized or in fact accepted as a child of his own or for whom he has voluntarily assumed permanent responsibility.”

29. It is the respondents’ case that Rhoda Kakuko and Gladys Dickson are children of the deceased. It is, however, disturbing that the two ladies were not called as witnesses by the respondents to come and shed more light on the issue of their kinship to the deceased. Nevertheless, the letter of the chief clearly states that the two ladies are children of the deceased born out of wedlock. The chief is a neutral party in these proceedings and has nothing to gain from inflating the number of the beneficiaries of the estate of the deceased. The Protestor who questioned the relationship of the two ladies to the deceased did not call the chief as a witness so that he could provide further clarification on the list of the beneficiaries of the estate of the deceased. The members of the 1st and 2nd houses acknowledged the two ladies as the children of the deceased. Based on the evidence on record, it is reasonable to conclude that the two ladies were children sired by the deceased out of wedlock and are therefore entitled to partake of the property left by their deceased father.

30. Although DW1 admitted in his further affidavit that Pauline would benefit from the estate of the deceased, there was a silent attempt by the respondents to ostracize her on the ground that she came with her mother and was therefore not a child of the deceased. I, however, note that DW1 did not seriously pursue this unholy theme. The evidence of the Protestor and her witnesses is that the deceased took Pauline under his wings up to the time of her marriage when he received the dowry. The deceased had therefore accepted her as his child and assumed full responsibility over her. Pauline was also listed as one of the beneficiaries in the pleadings filed in support of the application for grant of letters of administration of the estate of the deceased. She is thus a beneficiary of the estate of the deceased. I need not say more on this point.

31. How should the estate of the deceased be shared out? Section 32 of the Law of Succession Act provides that agricultural land and livestock in certain regions including West Pokot are excluded from the provisions of the Act. Further, Section 33 of the same Act provides that the law applicable to 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. In this case, the deceased was a Pokot. This is evident in the numerous attempts made by the Pokot Council of Elders to settle this succession cause out of court.

32. At page 133 of Chapter Fifteen of the book titled Law of Succession: Kenya (Restatement of African Law) published by the School of Oriental & African Studies in 1969, Eugene Cotran writes on the general principles of succession and the distribution of the estate of a deceased Pokot or Suk as follows:“Inheritance under Pokot law is patrilineal. The pattern of inheritance, whether in a monogamous or a polygamous household, is based on the equal distribution of a man’s property among his sons, subject to the proviso that the eldest son of the first wife receives a larger share. Widows have a right of use during their lifetime of property given them by the husband during his lifetime. Daughters are entitled to a very small share (one cow) on their marriage. In the absence of sons, the heirs are the nearest patrilineal relatives of the deceased, namely father, full brothers, half-brothers, and paternal uncles.The institution of making a will is recognized by the Pokot, although such a will must not depart from the general pattern of inheritance. Property may also be-and normally is-distributed during the father’s lifetime to the heirs as they get married.”

33. At page 137, the Cotran writes on the law applicable to the land of a married Pokot man with two or more wives as follows:a.Land. The Panel recommended:-i.that each house should retain the land allocated to it by the husband, the rules of division in it being as in 1(a) above; andii.that land not allocated to any house should be divided equally among all sons.

34. The 1(a) referred to above is at page 136. Here, the author states the custom applicable to the distribution of the land of a married man with one wife as follows:(a)Land.This was not regarded as inheritable property in the past since the Pokot were pastoral and had not evolved any land laws. It is considered desirable, however, that rules regulating the inheritance of land should be formulated, especially now that many Pokot are settled agriculturalists. The Law Panel recommended the application of the following general principles:-(i)the land should be shared by the deceased’s sons in equal shares;(ii)the widow should not get any specific portion, but should be entitled to cultivate some of the youngest son’s portion until her death; moreover she should be allowed to retain during her lifetime any portion given to her by her husband during his lifetime; and(iii)daughters should receive no share.

35. The Pokot customary law as stated above does not provide inheritance for women and is therefore not compliant with Article 27 of the Constitution which provides for equality and freedom from discrimination. I am therefore called upon to invoke Article 2(3) of the Constitution which provides that “any law, including customary law, that is inconsistent with this Constitution is void to the extent of the inconsistency, and any act or omission in contravention of this Constitution is invalid.” Fortunately, the whole custom on inheritance is not inconsistent with the Constitution and the compliant part of the customary law will be applied.

36. The parties are agreed that all the children of the deceased are entitled to a share of the estate. The formula they have adopted of sharing the estate equally among the three houses is in tandem with Pokot customs and not offensive to the Constitution. I will therefore go with the formula of sharing the estate among the three houses as agreed by the parties.

37. The question that remains to be answered is whether the deceased prior to his death allocated specific portions of his land to his wives. The evidence on record shows that the deceased had three wives. The 1st and 2nd wives lived in Kishaunet while the 3rd wife stayed in Siyoi. The land at Kishaunet was shared equally between the 1st and 2nd houses. When the 2nd wife passed away she was buried at her place in Kishaunet. The 3rd wife was buried in Siyoi alongside the deceased. A visit to the two parcels of land by this Court (J.M. Bwonwonga, J) on 22nd July, 2021 confirmed that the homes for the 1st and 2nd wives were established in Kishaunet while the 3rd wife had her home in Siyoi. This evidence points to one conclusion, that the deceased had apportioned land to his three wives and settled them on their respective portions.

38. In settling his wives in that manner, the deceased must have been aware of the productivity of his parcels of land. The report prepared by the agriculturalist and produced as an exhibit with the consent of all parties shows that the productivity of the Siyoi land is higher. However, that piece of land is smaller than the land in Kishaunet. On the agricultural viability of the two parcels of land, I take the view that the deceased during his lifetime was aware of the disparities in the productivity of his two pieces of land but decided to settle his wives as he did. I do not therefore find the issue of productivity good enough to warrant departure from the provisions of sections 32 and 33 of the Law of Succession Act. There is therefore no reason for interfering with the wishes of the deceased by dislocating families from where he had settled them.

39. There is the question of the share to be allocated to Rhoda Kakuko and Gladys Dickson. The deceased did not point out any place for them to settle. The unrebutted evidence of DW1 indicates that the deceased wanted the two settled at Siyoi. This evidence, coupled with the fact that the land at Siyoi may be of higher value because of its productivity, leads me to the conclusion that the proposal to settle the two at Siyoi is reasonable. The two will therefore get their shares from the deceased’s land at Siyoi.

40. In view of what I have stated in this decision, my findings are as follows:a.That Rhoda Kakuko and Gladys Dickson are beneficiaries of the estate of the deceased;b.That the estate of the deceased shall devolve in accordance with the Pokot customary practice that requires each house to retain the portion allocated to it during the deceased’s lifetime;c.For avoidance of doubt, the 1st and 2nd houses shall share West Pokot/Kishaunet/283 equally; andd.Rhoda Kakuko and Gladys Dickson shall each get an acre from West Pokot/Siyoi ‘A’/146 and the balance shall be shared by the three daughters of the 3rd house. For avoidance of doubt, Rhoda Kakuko and Gladys Dickson will be treated as the children of the 3rd house.

41. In order to enable this Court to issue an implementable certificate of confirmation of grant of letters of administration, I direct the members of each house to carry out a survey of their portion of land within ninety (90) days from the date of this order indicating the exact share to be allocated to each beneficiary. Thereafter the administrators shall file a joint affidavit stating the share of each beneficiary. In case there is no agreement among the members of any of the houses on how to share their portion of land, the land shall be shared equally among the members of that particular house.

42. Taking into account the kinship of the parties, I direct the parties to bear their own costs of these proceedings.

DATED, SIGNED AND DELIVERED AT KAPENGURIA THIS 13TH DAY OF JULY, 2022W. KORIR,