[2015] KECA 419 (KLR)

IN THE COURT OF APPEAL

AT KISUMU

(CORAM: MUSINGA, GATEMBU & MURGOR, JJ.A.)

CIVIL APPEAL NO. 8 OF 2013

BETWEEN

TIMINA NDAVOLA AFUNDI … APPELLANT

AND

FESTUS AFUNDI …………….. RESPONDENT

(An appeal from the ruling of the High Court of Kenya at Kakamega (Chitembwe, J.) dated 7th February, 2013

in

H.C.SUCC.CAUSE NO. 39 OF 1997)

*****************

JUDGMENT OF THE COURT

This appeal is against the ruling of Chitembwe, J. dated 7th February, 2013 in Succession Cause No. 39 of 1997 (Kakamega) where the subject matter of the dispute was the mode of distribution of a parcel of land known as Kakamega/Lumakanda/147, hereinafter referred to as “the subject land,” which measurers 12 acres or thereabout.

The subject land has a chequered history. In 1960 the subject land was allocated by the Settlement Fund Trustee (SFT) to one Paul Rangwen, who was supposed to repay the purchase loan that was advanced to him by the SFT. The subject land changed hands severally, albeit unlawfully, and in 1968 one John Kamau, purporting to be the owner thereof, sold it to the respondent's father, hereinafter referred to as “the deceased”. All along the title to the subject land was held by SFT since the purchase loan had not been repaid.

The deceased died in 1986 and left the respondent, his first born, and his six brothers living on the subject land. After the demise of the deceased, the respondent sold portions of the land so as to raise funds to finance several suits that had arisen over the land, and to clear the outstanding loan to SFT. All this time, the appellant, who is the deceased’s former wife, having been divorced in 1965, was living in Nairobi.

Sometimes in 1997, the respondent applied for grant of letters of administration in respect of his late father’s estate. The grant was issued on 22nd September,1998 and confirmed on 12th February, 1999. The confirmed grant showed that the respondent was to take the whole of the subject land but in reality, he had already shared it out with his six brothers and several persons who had purchased portions thereof.

On 28th July, 2010 the appellant, who had since been invited by the respondent to come and stay on the land with her son, Bernard Afundi, filed an application seeking the following orders:

“1. That the orders issued by this Honourable Court on the 12th of February, 1999 confirming grant of letters of administration to the Petitioner herein be set aside and varied;

2. That this Honourable Court be pleased to distribute the estate of the deceased afresh and each beneficiaries’ share be determined by the Court;

3. That the sub-division, distribution and conveyancing process be stopped pending hearing of this application inter- parties.”

In her short affidavit in support of the application, the appellant stated that the respondent had taken out letters of administration without her consent and after confirmation of the grant, he had unfairly distributed the subject land and given himself the lion’s share. She also alleged that the respondent had sold some of the land to strangers at the expense of other beneficiaries.

The appellant wanted the land to be distributed as follows:

a) JOSHUA CHAKAYA (PURCHASER) - 2 ACRES

b) FLORA OVAMBA (PURCHASER) - ½ ACRE

c) FESTUS AFUNZI LIMOZI - 1. 65 ACRES

d) DAVID AFUNDI - 1. 65 ACRES

e) EZEKIEL AMUGUNE(PURCHASER) - 1. 65 ACRES

f) JOSEPH KAYERE AFUNDI - 1. 65 ACRES

g) PAUL LIMOZI AFUNDI - 1. 65 ACRES

h) BERNARD LIMOZI AFUNDI - 1. 65 ACRES

8. The respondent filed a replying affidavit and set out the history of the land as we have summarized it hereinabove. He stated that together with his six brothers they were living on the subject land peacefully. There are also purchasers who are living on the land he added.

9. According to the respondent, the subject land was to be distributed as follows:

a) JOSHUA CHAKAYA - 2 ACRES

b) FRANCIS ILAVUNA - 2. 7 ACRES

c) JOYCE K. RABERU - 0. 5 ACRES

d) EZEKIEL AMUGUNE - 1. 3 ACRES

e) LUCIA A. KEVOGO - 0. 28 ACRES

f) FLORA OVAMBA - 0. 5 ACRES

g) PAUL LIMOZI AFUNDI - 1. 03 ACRES

h) FESTUS AFUNDI LIMOZI - 1. 03 ACRES

I) BERNARD LIMOZI AFUNDI - 0. 85 ACRES

j) JOSEPH KAYERE AFUND - 0. 85 ACRES

k) DAVID IDIGE AFUNDI - 0. 85 ACRES

10 Having considered the appellant’s application, the learned judge held:

“I am satisfied that the Petitioner has gone through a long process in his quest to have the land become part of their family property. He only managed to do so by selling portions of the land so that he could get financial assistance. To align the distribution of the estate to the share of each beneficiary at this last moment would lead to creating complications. This grant was confirmed way back in 1999 and by that time the land was still in the name of the settlement Fund Trustee. I am not ready to declare the efforts made by the Petitioner as worthless. The Petitioner’s proposed mode of distribution is quite fair. Although the objector contends that the Petitioner sold portions of the land and therefore his share should take that into account, I do find that the petitioner did not sell the land for his own benefit. Indeed the Petitioner is only getting 1. 03 acres and there are three other beneficiaries who are getting smaller portions. The smallest portions are 0. 85 acres. I do not find any big difference in the distribution of the estate as proposed by the Petitioner.”

11. The learned judge dismissed the appellant’s application and varied the confirmed grant so that the subject land is distributed in the manner proposed by the respondent.

12. That is the decision that gave rise to this appeal. The appellant set out the following grounds of appeal:

“1. The Honourable Judge erred in distributing the Deceased’s Estate among the Heirs and Beneficiaries in proportions;

2. The Honourable Judge erred in awarding the Petitioner extra land for his efforts to recover the said land when there is no legal provision for such an award;

The Honourable Judge erred in Ruling that the Petitioner had sold part of family land for processing the said land when the buyers of the portions sold for processing the title had been considered by the Appellant and the other Heirs;

4. The Honourable Judge erred in Ruling that all the persons who bought part of the family land be awarded land on distribution when they were sold land for personal benefit by the Petitioner and other heirs thereby reducing the shares of the innocent Beneficiaries;

The Honourable Judge erred in wholly adopting the mode of distribution by the Respondent.”

13. Mrs. Muleshe for the appellant faulted the learned judge for failing to distribute the subject land equally amongst all the beneficiaries, saying that section 35 of the Law of Succession Act provides for equality in distribution of a deceased’s estate. She urged the court to order distribution of the land as proposed by the appellant before the High Court.

14. Opposing the appeal, Mr. Munyendo, learned counsel for the respondent, submitted that the order on distribution of the subject land was fair and equitable. He said that it is the purchasers who enabled the respondent to get money to pay to SFT and thus procure the title to the land. The purchasers were therefore entitled to get their respective portions of the land that they had paid for. He told this Court that if the distribution as ordered by the High Court is disturbed, there will be several cases brought by some of the purchasers who will have been left out.

15. We have considered the record of appeal as well as the submissions made by counsel. Under section 35 (1) of the Law of Succession Act, where the intestate leaves a surviving spouse and children, the surviving spouse is entitled to the personal and household effects of the deceased absolutely and a life interest in the whole residue of the net intestate estate. The children are not entitled absolutely to the deceased’s property but the surviving spouse holds the estate in trust for the children. But in the event of death of the surviving spouse, the residue of the intestate estate devolves upon the children and should be divided equally among them. See section 35 (5) of Act.

16. However we do not think that the provisions of section 35 are applicable here as submitted by the appellant’s counsel. This is because the deceased had divorced the appellant way back in 1965 and from the replying affidavit of the respondent in answer to the appellant’s application, it appears that the appellant was brought back to the land only after the demise of the respondent’s father.

But under section 38of theAct, where an intestate is survived by children but no spouse, the net intestate estate devolves upon the children and it should be divided equally among the children.

17. That notwithstanding, the children can decide not to divide the estate equally and agree among themselves how best to share it. In this case, none of the children of the deceased objected to the mode of division of the subjectland proposed by the respondent. If at all any one of them was not satisfied, he did not raise any objection or file any affidavit.

The appellant, having been divorced by the deceased long before his demise, had no capacity to institute the application that she filed on 28th July, 2010.

18. In any event, looking at the mode of distribution of the deceased’s estate as ordered by the learned judge, we agree that it is equitable and fair and ought not to be disturbed. The respondent wants to ensure that each and every purchaser is given their rightful share of the subject land which they lawfully acquired, and without whose money the respondent would have been unable to redeem the land from SFT. On the other hand, the appellant wishes to have some of the purchasers left out in the distribution of the subject land and calls them “strangers,” yet she was not there when the respondent was btaining money from them to salvage the land.

19. It is not true that the respondent shall get the lion’s share of the subject land alone. He was given 1. 03 acres, just like one of his brothers, Paul Limozi Afundi, who also got 1. 03 acres. The other brothers got slightly smaller shares, measuring 0. 85 acres.

20. For all these reasons, we find no merit in this appeal and dismiss it in its entirety. Each party shall bear its own costs.

DATED AT KISUMU THIS 25TH DAY OF SEPTEMBER, 2015

D. K. MUSINGA

…………………………..

JUDGE OF APPEAL

S. GATEMBU KAIRU,

…………….……………

JUDGE OF APPEAL

A. K. MURGOR

………..……………….

JUDGE OF APPEAL

I certify that this is

a true copy of the original

DEPUTY REGISTRAR