[2015] KEHC 2303 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT BUSIA

SUCCESSION CAUSE NO. 168 OF 2008

IN THE MATTER OF THE ESTATE OF SAMSON BARASA WERE -----DECEASED

AND

PHYLIS ANYANGO BARASA

FEJENIA WERE BARASA............................................PETITIONERS

VERSUS

LIVINGSTONE JUMA BARASA

MUSA OUMA BARASA

CHARLES MAJONI BARASA....................................OBJECTORS

ELIZABETH NAFULA OUMA

JENNIFER WERE MALOBA

FLORENCE NAMDE

RULING

These proceedings are in respect to the Estate of Samson Barasa Were (Deceased). Before this court is the question of Distribution of that Estate which proceeds on the basis of the Consent order entered on 19th February 2014 in the following terms:-

That The Grant of Letter of Administration intestate issued on the 3rd day of November 2009 jointly to Fejenia Were Barasa and Phyllis Anyango Barasa is hereby revoked;

That a fresh Grant of Letters of Administration intestate in the joint names of Phyllis Anyango Barasa, Livingstone Juma Barasa and Gabriel Odhiambo Barasa to issue;

That all entries in the certificate of register in respect of L.R. No. Samia/Bujwanga/508 arising as a result of the Grant of Letters of Administration intestate issued on the 3rd day of November 2009 are hereby cancelled and the name of the Deceased restored;

That parties are to file their respective preferred mode of distribution of the estate within a period of 30 days.

That this matter shall be mentioned on 28th day of May 2014 for further directions.

First however is a matter that needs to be disposed of at once. The only property in the name of the Deceased is a half share of Samia/ Bujwanga/508. The other half is the property of the Estate of Gondi Were, also (Deceased). Although these nature of the co-ownership is not clear from the Green Card to the Land parcel, the 2nd Petitioner makes the following concession in paragraph 14 of the affidavit of 20th May 2014.

That since L.R. No. Samia/Bujwanga/508 is jointly registered in the names of the Deceased and Gondi Were as proprietor-in-common, it follows that personal representatives to each of them are at liberty to apply to be registered in their places.

Clearly then distribution herein is only in respect to the half share of the Estate of Samson Barasa Were. Matters of the Estate of Gondi Were will have to be agitated elsewhere.

Another issue now needs to be determined, the date of death of the Deceased herein. This is because distribution of the Estate would follow the Provision of the Law of Succession Act only if the Deceased died after 1st July 1986, the commencement date of the Statute (Section 2(2) of the Law of Succession Act). The certificate of Death filed at the time of presentation of this petition indicates that the Deceased died on 16th September 1978. However in paragraph 4 of the Affidavit of the 2nd Petitioner sworn on 27th February 2012, this averment is made-

That it is indeed true that the Deceased, Samson Barasa Were died in the year 1987 and not 1978 as had been indicated in the petition.

I have studied the replies by the Objectors and I see no challenge to this averment. In fact the 5th and 6th Objectors expressly state that the deceased died on 22nd October 1987. For this reason I accept that to be the Date of Death and the Provisions of the Law of Succession Act in respect to Distribution shall guide my decision herein.

From the evidence on record some facts are not in contention. The Deceased herein had three wives namely Fejenia Were Barasa, Angeline Were Barasa and Mwende Barasa. Fejenia is the 1st Petitioner herein and was blessed with one child, Phylis Anyango Barasa (the 2nd Petitioner. Angeline and Mwende are dead and it is not clear from the evidence whether they pre-deceased the Deceased. What however is more clear is that the 1st, 2nd and 3rd Objectors are surviving children to Angeline and the Deceased while the 4th Objector is the surviving daughter to the Deceased and Mwende. There cannot therefore be a serious dispute that all the 1st to 4th Objectors and the Petitioner, are Dependants of the Deceased.

The bone of contention by the Petitioner is that in his lifetime the Deceased made advancements to the Objectors as follows:-

Samia/Bujwanga/516 – to the 1st Objector

Samia/Bujwanga/512 – to the 2nd Objector

Samia/Bujwanga/1513 to the 3rd Objector

Samia/Bujwanga/514 to the 4th Objector.

This court is therefore asked to give regard to the Provisions of Section 35(4)(d) which provides:-

4) Where an application is made under Subsection

(3), the court shall have power to award the applicant a share of the capital of the net intestate estate with or without variation of any appointment already made, and in determining whether an order shall be made, and is so, what order, shall have regard to-

a)…………

b)………….

c)………..

d) Whether the deceased had made any advancement or other gift to theapplicant during his lifetime or by will:

On their part, the Objectors deny that there were any advancements by the Deceased and contend that the Land parcels were never registered in the names of the Deceased. When he gave sworn evidence, the 1st Petitioner added that the land was given to them by his uncle Gondi Were.

A party that makes an assertion must prove it, (Section 107 of the Law of Evidence Act). I am asked by the Petitioners to invoke the Provisions of Section 35(4)(d) in making the order for distribution. This Court is however not certain that the Petitioner provided sufficient evidence to persuade me that land parcels Samia/Bujwanga/514, 513, 513 and 516 were advancements to the Objectors. There was no evidence that these land parcels were in fact initially the property of the Deceased herein. In response to a question on cross-examination, the 2nd Petitioner stated as follows:

“In parcels 511, 512, 513 and 516, the registration was not in the Deceased name. I have no documents to show that the land parcels were once registered in the names of the Deceased”

What may make the assertion of the Objectors that the Deceased had not made an advancement believable is that just like the Petitioner, all the Objectors have houses on plot no. 508, a position that held even at the time of the Death of the Deceased. This was the common evidence of the opposing sides.

Ultimately, I do hereby hold that distribution herein should follow the Provision of Section 40 (1) and (2) of the Law of Succession Act. The half share of the Deceased’s portion of Samia/Bujwanga/508 shall be divided into 6 units. The Petitioner shall take 2 units with the 1st Petitioner taking a life interest therein. Each of the 4 Objectors shall take 1 unit. Each Beneficiary shall, as much as is possible, take up his or her unit from where he/she currently occupies.

The parties herein are close family members. I do not deem it desirable to aggravate any differences they may already have with an order of costs.

As explained to the Parties, this Decision could only be delivered on Notice to them as I was proceeding for my Annual Leave and thereafter for August vacation. That explains the apparent delay.

Dated, Signed and Delivered at Busia this 1st day of October 2015.

F. TUIYOTT

J U D G E

In the Presence of:-

Oile…………………………………………....Court Clerk

N/A…………………………………….. ..For the Petitioners

Fwaya…………………………………….For the Objectors