[2017] KEHC 2915 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KISUMU

SUCCESSION CAUSE NO. 424 OF 2015

MONICA ANYANGO ANYONGA...........................PETITIONER/APPLICANT

VERSUS

CONSOLATA AUMA ANYONGA …...................BENEFICIARY/OBJECTOR

RULING

The deceased to whose estate these proceedings relate is Buka Anyonga Deya who died intestate on 24th September 2010 domiciled in Kenya at Kedh, Karateng in Kisumu County.

A grant of letters of administration intestate were on 16th March 2016 issued to Monica Anyango Anyonga who had petitioned in her capacity as the widow but before the grant could be confirmed a protest was filed by Consolata Auma Anyonga on the ground that she too was the wife of the deceased and hence a beneficiary of his estate. Consequently confirmation of the grant was suspended and this court proceeded to hear evidence from the parties.

That the deceased died intestate is not disputed. The contentious issues are whether Monica Anyango Anyonga is a wife of the deceased capable of getting a share of his estate and secondly what assets comprise the intestate estate of the deceased.

Consolata Auma Anyonga, the Protestor, testified that she was the only wife of the deceased Monica Anyango, the Administratix, who was his first wife having left the deceased and remarried. She narrated how Monica Anyango kept leaving her matrimonial home and returning. She stated that the deceased only welcomed Monica back together with the children she begot in those other relationships because he was a very humble man. She testified that Monica Anyango is currently living with her brother in-law, one Were, and as such she should not get a share of the deceased's estate.

As for the assets the Protestor contended that the deceased had more assets than were disclosed by the Administratix in her petition for a Grant of Letters of Administration. She listed those assets as LR Kisumu/Karateng/835, LR Kisumu/Karateng/1800and LR Kisumu/Manyatta “A”/40. The other assets as disclosed by the Administratix were LR West Kisumu/Karateng/562and LR Kisumu/ Manyatta “A”/39. She urged the court to vest LR West Kisumu/Karateng/562to her house stating that that was where the deceased had established a home for her and is where she resides todate. She contended that the Administratix upon returning to the deceased's home had rejected his offer to settle on LR West Kisumu/Karateng/562 preferring instead to live elsewhere. She together with her witness, a brother of the deceased, stated that the deceased had bought for the Administratix LR Kisumu/ Karateng/835where she resides todate.

The Protester further contended that LR Kisumu/Karateng/1800had been bequeathed to her eldest son by the deceased and this court should therefore devolve it to him.

As for LR Kisumu/Manyatta “A”/39she produced “an agreement” reached by the family in the presence of their local administrator and urged this court to distribute the asset as per that “agreement”.

Concerning LR Kisumu/Manyatta “A”/40she testified that the same belonged to a son of the Administratix who has since died but it is now registered in the name of the Administratix and her daughter despite that her son had a wife. She described the Adminstratix as an extremely dishonest person and stated that she did not attend her own husband's burial although she lived only one kilometer away.

On her part the Adminstratix (Monica Anyango Anyonga) maintained that she was a wife of the deceased having wedded him in Church on 9th November 1962. Whilst admitting that she and the deceased were enstranged she stated that they were never divorced and blamed their separation on his becoming violent upon taking the Protester as a second wife.

As for the assets the Protestor alleges belonged to the deceased but which she allegedly left out in her Summons for Confirmation she produced an agreement in respect of LR Kisumu/Karateng/835as proof that she purchased it herself. Asked why the deceased's name appears on the agreement it was her evidence that he was merely a witness and nothing more. As for LR Kisumu/Manyatta “A”/40she contended that the same belonged to her late son and not the deceased and is not therefore the free property of the deceased.

In regard to LR Kisumu/Karateng/1800 she denied that the same was bequeathed to the Protestor's son and urged the court to treat it as part of the estate. She however alleged to have purchased LR Kisumu/Manyatta “A”/39with her own money. She proposed that either the assets that are the free property of the deceased be distributed equally between her and the Protestor or that LR Kisumu/Manyatta “A”/39be bequeathed to her house and LR West Kisumu/Karateng'/562and LR Kisumu/Karateng/1800to the Protester. She maintained that LR Kisumu/Karateng/835and LR Kisumu/Manyatta “A”/40are not the property of the deceased.

This court received submissions from Otieno Ragot & Company Advocates, the Advocates for the Protestor and Omondi, Abande & Company Advocates, for the Adminstratix. These have been considered alongside the evidence on record as well as the pleadings.

Marriages contracted under the African Christian Marriage and Divorce Act (now repealed) are monogamous which means that parties who contracted such marriages could not enter into other marriages during the lifetime of their spouses or they were divorced. Proof of divorce or dissolution of such marriages is by a Decree Absolute. Whereas the Protester alleges the Administratix was not the deceased's wife she fell short of producing a decree to prove that the marriage between them was dissolved. Her allegation that the Administratix left the deceased and went to live with other men is based on evidence which she herself admits is hearsay and there is no proof on a balance of probabilities that the administratix lived with other men. Instead there is evidence from the Protestor herself that the deceased always welcomed the Administratix back and treated her children as his own. The Administratix while admitting she has an affair with a man called William denied they were married. In any event even had it been proven that she was divorced by the deceased her position vis a vis the estate of the deceased is saved by Section 29(a) of the Law of Succession Act which makes her a dependant. The said section provides:-

“29. For the purposes of this part, dependants means -

The wife or wives or former wives, and the children of the deceased whether or not maintained by the deceased immediately prior to his death”

(underlining mine).

Moreover had not the Section 3(5) of the same Act not saved the Protestor's marriage she herself would not have been considered a wife the deceased having contracted a monogamous marriage with the Administratix. To that extent based on the Law of Succession Act this court is satisfied that both the Protestor and the Adminsitratix are widows of the deceased and are therefore beneficiaries of his estate together with their children.

As for what is or is not the free property of the deceased I find as follows -

(i)That the Administratix has proved on a balance of probabilities that LR Kisumu/Karateng/835belongs to her and not the deceased. She produced a sale agreement between her and one Grace Ayot Olewe which confirms that it is she and not the deceased who paid the consideration for this land. I am persuaded that the only role the deceased played was to attest that agreement. Indeed in the letter dated 24th March 2006 – annexture “CAA/3” to the affidavit of the Protestor the Chief refers to that parcel as the property of the Adminstratix by describing it as “her land parcel Ksm/Karateng/835”.The Adminstratix has also demonstrated that she had the capability of purchasing this asset as she was a trader a fact that was confirmed by the deceased's brother – a witness for the Protestor. She also explained the circumstances under which she built her house on this land but not LR West Kisumu/Karateng/562where she had her matrimonial home prior to the deceased marrying the Protestor. In the premises for all intents and purposes LR Kisumu/Karateng/835 cannot be treated as the free property of the deceased and does not form part of his estate.

(ii) LR Kisumu/Manyatta “A”/40did not belong to the deceased but to William Omondi Anyona who happens to be the son of the Administratix. Annexture “CAAA/6” – A copy of the register shows that he became the proprietor of the property on 28th November 1995. There is nothing to show that it was gifted to him by the deceased and clearly it is not the free property of the deceased.

(iii) LR West Kisumu/Karateng/562, LR Kisumu/Manyatta “A”/39 and LR Kisumu/Karateng/1800were all the free property of the deceased. Whereas the Adminstratix alleges that she purchased and developed LR Kisumu/Manyatta “A”/39she did not prove it. As for LR Kisumu /Karateng /1800it was the Protestor's evidence that it was bequeathed to her eldest son by the deceased but there is no evidence to prove that claim.

There was an allegation by the Protestor and which was confirmed by the Administratix that the family through their area chief explored an alternative method of resolving this dispute. It is however instructive that the agreement was never reduced to a consent by this court which then would be binding upon the parties and indeed the Administratix has recanted it. It is my finding therefore that these three assets are subject to distribution under the Law of Succession Act to which the deceased was subject having died intestate.

The deceased having been polygamous and being survived by spouses and children and they having failed to consent to the mode of distribution his estate is subject to

Section 40 of the Law of Succession Act which states -

“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 to the net intestate estate within each house shall then be in accordance with the rules set out in sections 35 to 38. ”

The Protestor having refused to take up the Administratix on her offer to take LR West Kisumu/Karateng/562 and LR Kisumu/Karateng/1800 and to leave LR Kisumu/Manyatta “A” 39 to her, this court hereby directs that the three assets be distributed as follows in accordance with Section 40 of the Law of Succession Act -

1. (i) LR West Kisumu/Karateng/562 to be shared equally between the two houses of the deceased and thereafter the share of each house to be distributed equally between the children of that house and the wife noting that it is the law that should a widow remarry her life interest shall determine.

(ii) LR Kisumu/Karateng/1800 to be shared equally between the two houses and thereafter the share of each house be distributed equally between the children of that house and the wife the wife's life interest which in accordance with the law shall be determinable upon her remarriage.

(iii) LR Kisumu/Manyatta “A”/39 to be shared equally between the two houses and thereafter the share of each house to be distributed equally between the children of that house and the wife. The wife's life interest being determinable upon her remarriage.

As for the costs of these proceedings I decree that each party shall bear her own costs.

2. A certificate of confirmation to issue.

Orders accordingly.

Signed dated and delivered at Kisumu this 5th day of October 2017

E.N. MAINA

JUDGE

In the presence of:-

N/A for Advocate for the Administratix

Mrs Onyango for the Protestor

The Protestor

The Administratix

Serah Sidera - Interpreter