[2022] KEHC 13586 (KLR)

Ndeda v Ndeda (Succession Cause 60 of 2001) [2022] KEHC 13586 (KLR) (12 October 2022) (Ruling)

Neutral citation: [2022] KEHC 13586 (KLR)

Republic of Kenya

In the High Court at Busia

Succession Cause 60 of 2001

JR Karanja, J

October 12, 2022

IN THE MATTER OF THE ESTATE OF MICHAEL NDEDA MUBWEKA – (DECEASED)

Between

Chrispin Ouma Ndeda

Petitioner

and

Brian Mubweka Ndeda

Objector

Ruling

1. The petitioner, Chrispin Ouma Ndeda, took out the summons for confirmation of grant dated January 26, 2022 seeking the basic order that the grant of letters of administration intestate issued to him on the February 7, 2001 be confirmed in terms of the mode of distribution set out in paragraph five (5) of the supporting affidavit deponed by himself on February 2, 2022. However, Brian Mubweka Ndeda, one of the beneficiaries of the estate of the late Michael Ndenda Mubweka (deceased), filed an affidavit of protest dated March 14, 2022. In view of the protest, the court directed that it be canvassed by way of written submissions with parties having the liberty to file further affidavits.Both parties filed their respective submissions which they fully relied on. This ruling therefore relates to the protest and will eventually determine whether or not the grant issued to the petitioner will be confirmed in the manner proposed by the petitioner.

2. Towards that end, it is indicated in the supporting affidavit that the deceased was a polygamist with four wives, two of whom are now deceased. He was survived by his wives and twelve children ie. four sons and eight daughters. The petitioner and the protestor are both sons of the deceased. It is also indicated that at the time of his death, the deceased was the owner of land parcels No Bukhayo/Bugengi/5053, NonSouth Teso/Angoromo 115 (Busia Municipality/BML14/115) and NonBukhayo/Bugengi/1741, which is said to have been compulsorily acquired by the Government of Kenya and therefore unavailable for distribution to any of the beneficiaries.In paragraph five (5) of the supporting affidavit, the petitioner proposes that land parcel NonBukhayo/Bugengi/5053 be distributed to the protestor and the widow of the deceased, Mary Stella Awino in equal share and that land parcel NonSouth Teso/Angoromo/115 or Busia Municipality BMLH/115 be distributed to himself (petitioner) together with the protestor and the widow Mary Stella Awino in accordance with the agreement dated September 17, 2012 signed by the parties.

3. In his protest affidavit dated March 14, 2022, the protestor in paragraph twenty two (22) implies that the petitioner did not consult all the beneficiaries in the distribution of the estate, but in paragraph twenty one (21) he clearly agrees with entry two and three of the petitioner’s schedule of distribution thereby implying contrary to what he stated, that all the beneficiaries were consulted by the petitioner on distribution of the property availed for distribution. However, the protestor did not agree with entry one of the schedule.It is notable that entry two relates to parcel No.South Teso/Angoromo/115 or Busia Municipality/BMLH/115 which it is proposed for distribution to both the petitioner and the protestor together with Mary Stella Awino. Entry three relates to parcel No.Bukhayo/Bugengi/1741 which it is indicated is not available for distribution having been compulsorily acquired by the Government.

4. The bone of contention between the petitioner and the protestor who are both sons of the deceased with the petitioner being the eldest revolves around entry one of the schedule of distribution relating to parcel NonBukhayo/Bugengi/5053 which is proposed for distribution to the protestor and the widow of the deceased, Mary Stella Awino.It is ironic that the protestor would object to a proposal which favours him and a widow of the deceased without making his own proposal on the distribution of the same and instead imply that the petitioner in making his proposal acted in a crafty and fraudulent manner. If indeed that was the case, then the protestor would have disagreed with all the entries in the schedule of distribution instead of agreeing with two of the entries and disagreeing with only one of the entries. This was a clear indication that the protest was not made in good faith and was intended to revisit matters which had previously been dealt with and resolved with the agreement of all the interested parties. Any subsequent issues that may have arisen thereafter in relation to ownership of any of the property and/or measurement thereof would be a matter falling within the jurisdiction of the Land & Environment Court rather than a Succession Court.

5. In his submissions, the protestor sought to give three proposals for the distribution of the estate. The first two proposals would be subject to his protest being sustained by the court and include a parcel of land described as Bukhayo/Bugengi/2182 which clearly is not included as part of the property available for distribution in the summons for confirmation of grant by the petitioner.The third proposal would be subject to his protest being overruled. It’s to the effect that parcel No.Bukhayo/Bugengi/5053 should not be distributed due to fraud and that parcel Non115 (S Teso Angoromo/Busia Municipality) be distributed among the four houses of the deceased while parcel Bukhayo/Bugengi/1741 be left to the Government of Kenya after it acquired it compulsorily.These proposals are grounded on “quick sand” as they add no value to the affidavit of protest and are conditional i.e. subject to whichever direction the court may give on the protest. The less said about the proposals the better.

6. Otherwise, in this court’s opinion, the protest is devoid of good faith and merit and is hereby overruled.However, the summons for confirmation of grant may not be allowed on the basis of the mode of distribution set out in paragraph five (5) of the supporting affidavit for the main reason that the proposed distribution does not conform with the requirement of section 40 of the Law of Succession Act which provides for distribution of the estate of a polygamous intestate. Herein, it is undisputed that the deceased was a polygamist with four wives and twelve children. Therefore, the petitioner’s proposal on distribution of his estate runs contrary to the requirement of the aforementioned provision of the law and cannot be sustained by the court unless the impugned summons for confirmation is altered or amended to accord with the said section 40 of the Law of Succession Act or all the actual and proper beneficiaries of the estate agree on any other mode of distribution which ought to be equitable, proportionate and ensure that none of the beneficiaries is disinherited of his or her inheritance. It is accordingly ordered. To keep the matter on the fast track towards final disposal at this stage, it shall be given a mention date for appraisal of the status and/or further orders.

J.R. KARANJAHJ U D G EDATED & SIGNED THIS 12TH DAY OF OCTOBER 2022