In re Estate of Makokha Idris Musindalo (Succession Cause 13 of 2017) [2022] KEHC 13765 (KLR) (7 October 2022) (Judgment)
Neutral citation:
[2022] KEHC 13765 (KLR)
Republic of Kenya
Succession Cause 13 of 2017
WM Musyoka, J
October 7, 2022
Judgment
1.This matter relates to the estate of the late Makokha Idris Musindalo, who died on 2nd January 2017. A letter from the Chief of Buchifi Location, dated 25th July 2017, indicates that he was survived by a widow, 4 sons and 4 daughters. The widow was named as Zubeida Khasabuli Ibrahim; the sons were said to be Fami Idris, Gabriel Wesonga, Sharif Idris and Asswim Idris; and the daughters were named as Farida Idris Musindalo, Shamim Idris, Hanifa Idris Musindalo, and Razia Idris. He was said to have died possessed of East Bukusu/South Kanduyi/6483, 6484, 6485, 6486, 6487 and 6489; North Wanga 946 and Bungoma Municipality Plot No. 517.
2.Representation was sought in a petition filed herein on 3rd October 2017. The petition was at the instance of the widow, Zubeida Khasabuli Ibrahim. She listed the 9 individuals, listed in the letter by the Chief of Buchifi Location, as the survivors of the deceased. She also listed 9 of the assets listed in the Chief’s letter as what the deceased died possessed of. In addition, she listed Mumias Township/Block/10 and motor vehicle registration marks and numbers KAJ 227P, KBA 270P, KCB 256B, KCC 484C, KCC 485C, KCC 486C, KCC 487C, KHMA 997, KHMA 693G, KHMA 006G and KHMA 005G. Debts and liabilities were listed, being loans on the construction equipment owed to Brital Shine Investments Limited and on motor vehicle KCB 256B. Letters of administration intestate were made to the petitioner, on 9th January 2018, and a grant was subsequently issued, dated 16th January 2018.
3.A summons for revocation of grant, dated 1st August 2018, was filed herein on 16th August 2018, by Fami Idris, seeking revocation of the grant made to Zebedia Khasabuli Ibrahim on 9th January 2018, and for a fresh grant to be made jointly to him and Zebedia Khasabuli Ibrahim. His case was that the grant had been obtained fraudulently, and that a since one of the survivors was a minor, there ought to have been appointed more than one administrator. Zubeida Khasabuli Ibrahim responded to the application. The said application was resolved by consent on 8th November 2018, where the grant of 16th January 2018 was revoked, and 4 administrators appointed, being Zubeida Khasabuli Ibrahim, Gabriel Wesonga, Hanifa Idris Musindalo and Fami Idris. I shall hereafter refer to them as the 1st, 2nd, 3rd and 4th administrators, respectively. The parties were given time to file for confirmation of their grant, with liberty to those who would not support the proposals made in the application to file affidavits of protests.
4.The summons for confirmation of grant, that the court directed to be filed on 8th November 2018, was filed herein on 14th May 2019, of even date, by Fami Idris, who I shall refer hereto as the applicant. In his supporting affidavit, sworn on 14th may 2019, he has identified the survivors of the deceased to be Zubeida Khasabuli Ibrahim, Fami Idris, Farida Idris Musindalo, Gabriel Wesonga, Shamim Idris, Hanifa Idris Musindalo, Razia Idris, Sharif Idris, and Asswim Idris, being widow, and sons and daughters of the deceased. He has identified the assets that the deceased died possessed of are Bungoma/Municipality/517; East Bukusu/South Kanduyi/6483, 6484, 6485, 6486, 6487 and 6488; and motor vehicles KAJ 227P, KBA 270P and KCB 256B. He proposes that East Bukusu/South Kanduyi/6483, 6484, 6485, 6486, 6487 and 6488 ought not to be distributed since they were the matrimonial home. The shops on Bungoma Municipality/517 to be distributed to Razia Idris and Sharif Idris, Shamim Idris, Fami Idris, Farida Idris, Hanifa Idris, Hashim Idris, Wesonga Gabriel and one of them be utilized to pay rates. Mumias Township/Block 1/10 to Hashim and Sharif. 1 acre each of North Wanga/976 to each child, except for Hashim who gets 2 acres. Unreferenced land said to be next to North Wanga/976 is allocated to Wesonga Gabriel. Motor vehicle KAJ 227P is allocated to Fami Idris and the Bungoma family. KBA 270P to Hashim Idris. Income to be generated from KCB 256B and the Mumias shop, to be shared equally amongst all the beneficiaries.
5.The said summons for confirmation of grant has generated various protests.
6.One such protest was filed by Zubeida Khasabuli Ibrahim, through her affidavit, sworn on 4th July 2019. I shall refer to her as the 1st protestor. She avers that she does not agree with the proposals on distribution. She gives various reasons. One, that the proposals do not provide for her, as the sole surviving widow of the deceased. Two, that the minor child of the deceased, Asswin Idris, has not been provided for. Three, the proposals include distribution of assets not belonging to the deceased. Four, the applicant has not accounted for rental income that he has been collecting since 2nd January 2017. Five, the distribution does not allocate shares to each of the survivors. Six, Bungoma Municipality/517 is not distributed fairly and the applicant has listed office space yet there is no such space. Seven, the mode of distribution proposed is not fair. Eighth, the proposal does not consider special circumstances and interests. She has identified the survivors as Zubeida Khasabuli Ibrahim, Fami Idris, Farida Idris Musindalo, Gabriel Wesonga, Shamim Idris, Hanifa Idris Musindalo, Radis Idris, Sharif Idris and Asswin Idris. The assets that she identifies as available for distribution are East Bukusu/South Kanduyi/6483, 6484, 6485, 6486, 6487 and 6488; Bungoma Municipality/517; South Wanga/Matungu/976; Mumias Township/Block 1/10; KAJ 227P and KBA 270P. She urges the court to consider that she is an unemployed widow with a minor school going child, while the rest of the survivors are all adult. She proposes distribution as follows: Bungoma Municipality/517 to Zubeida Khasabuli Ibrahim and Asswin Idris; East Bukusu/South Kanduyi/6483 to Sharif Idris, East Bukusu/South Kanduyi/6484 to Gabriel Wesonga, East Bukusu/South Kanduyi/ 6485 Shamim Idris, East Bukusu/South Kanduyi/ 6486 Razia Idria, East Bukusu/South Kanduyi/ 6487 Hanifa Idris Musindalo and East Bukusu/South Kanduyi/6488 Fami Idris Musindalo, Mumias Township/ Block 1/10 to Farida Idris Musindalo, North Wanga/Matungu/976 to Zubeida Khasabuli Ibrahim and Asswin Idris; KAJ 227P equally to Fami Idris, Farida Idris Musindalo, Gabriel Wesonga, Shamim Idris, Hanifa Idris Musindalo, Razia Idris, Sharif Idris and Aswwin Idris; rental income collected by Fami Idris to be shared equally amongst all the survivors; and KBA 270P to Zubeida Khasabuli Ibrahim. It is averred that all the pieces of land in East Bukusu, South Kanduyi, were developed and were accruing income. She explains that she proposes that North Wanga/Matungu/976 be allocated to her as the deceased had began to put up a matrimonial house on it for her. She explains that the deceased was trading under the name of Idris Trading Company Limited, which had entered into a partnership agreement with Brital Shine Investment Limited to jointly purchase several motor vehicles by loan, for business purposes, being KCC 484C, KCC 485C, KCC 648, KCC 487, KHMA 997F, KHMA 693G, KHMA 006G and KHMA 005G. It is said that the deceased intended to share out the said motor vehicles with the partner after the full payment of the loan. She proposes that what is due to the deceased should be shared out later. She has attached to her affidavit a copy of the equipment partnership agreement between the two companies.
7.The second protest is by Selifa Queen Mudibo, vide an affidavit sworn on 14th July 2020, and filed herein on 17th July 2020. She identifies herself as a widow of the deceased, having been married in 1984, cohabited with the deceased until the two separated in 1991. She asserts their marriage was never dissolved. She avers that the two got two children, Farida Idris Musindalo and Hanifa Idris Musindalo. She states that she attended the burial of the deceased and was recognized as a widow of the deceased., having been the first wife. She complains that when the succession cause was initiated, she was not involved and she had only stumbled on documents in possession, of one of her daughters, which dealt with the proceedings. She contests that the confirmation of the grant to her exclusion would disinherit her. She makes no proposals on distribution in her affidavit. I shall refer to Selfa Queen Mudibo as the 2nd protestor.
8.The 2nd protestor then filed a mode of distribution, dated 28th July 2020, on 29th July 2020. She identifies the survivors as Zubeida Khasabuli Ibrahim, Fami Idris, Farida Idris Musindalo, Gabriel Wesonga, Shamim Idris, Hanifa Idris Musindalo, Radis Idris, Sharif Idris, Asswin Idris and Selifa Queen Mudibo, being widows, sons and daughters of the deceased. She identifies the assets available for distribution as East Bukusu/South Kanduyi/6483, 6484, 6485, 6486, 6487 and 6489; Bungoma Municipality/517. Mumias Township/Block 1/10 North Wanga/Matungu/946; KAJ 227P and KBA 270P. She proposes distribution as follows; Bungoma Municipality/517 to Zubeida Khasabuli Ibrahim and Asswin Idris; East Bukusu/South Kanduyi/6483 to Sharif Idris; East Bukusu/South Kanduyi/6484 to Gabriel Wesonga; East Bukusu/South Kanduyi/6485 to Selifa Queen Madibo; East Bukusu/South Kanduyi/6486 to Hanifa Idris Musindalo; East Bukusu/South Kanduyi/6487 to Razia Idris and East Bukusu/South Kanduyi/6488 to Fami Idris and Shamim Idris; Mumias Township/Block 1/10 to Farida Idris Musindalo; North Wanga/Matungu/ 946 to Zubeida Khasabuli Ibrahim and Asswin Idris; KAJ 227P to Selifa Queen Madibo; and KBA 270P to Selifa Queen Madibo.
9.There is a further affidavit of protest by Hanifa Idris Musindalo, the 3rd administratrix, sworn on 29th July 2020. She expresses herself to have the consent of the 1st, 2nd and 3rd administrators. She avers to issues relating to administration expenses, saying that the income from the estate was not sufficient to meet administration expenses. She accuses the applicant of collecting rental income that is not paid into the estate account. She says the applicant had not serviced the loan on Bungoma Municipality/517. He is also accused of withdrawing Kshs. 16,168,548.00 from the estate account for personal use. He is said to have admitted Kshs. 7,060,000.00, but did not account for it. He is also accused of taking out a loan of Kshs. 8,776,800.00 for personal use, and to have used an estate asset KHMA 005G, as collateral, and that he was servicing the loan using estate income. He is said to have handled estate funds totaling Kshs. 23,000.000.00, which he has not accounted for. It is proposed that at distribution, that figure ought to be considered, and the applicant ought not to be allocated anything until he accounts for the said sum of Kshs. 23,000,000.00. It is stated that KCB 256B is not available for distribution and ought to be removed from the schedule. It is also averred that Bungoma Municipality/517 was subject to litigation in Bungoma High Court 17 of 2019, and, therefore, it ought not be distributed.
10.The other protest is by Ummu Maloba Musindalo, vide her affidavit sworn on 17th August 2020, filed on even date. She avers that she had been married to the deceased, and they had four children together, being Fami Idris, Shamim Idris, Razia Idris and Shariff Idris, the said marriage was dissolved by court decree in Kisumu KCDC No. 12 of 2007. She moved the High Court is Busia HCCC No. 39 of 2012, on division of matrimonial property, and Bungoma/South Kanduyi/5310 was allocated to her, and East Bukusu/South Kanduyi/6488 was allocated to Fami Idris, Shamim Idris, Razia Idris and Shariff Idris. She avers that East Bukusu/South Kanduyi/6488 was not available for distribution. She avers that she was also allocated a shop on Bungoma Municipality/517 and KAH 937P. She asserts her entitlement to Bungoma Municipality/517. She avers that the deceased had been ordered to remit Kshs. 30,000.00 to her monthly for her upkeep, and she avers that the same remained a liability to the estate. She opposes confirmation of the grant without her being considered as a beneficiary of the estate. I shall refer to Ummu Maloba Musindalo as the 3rd protestor.
11.The protest by the 3rd protestor attracted a response by the 1st protestor and the 2nd and 3rd administrators, vide an affidavit sworn on 3rd August 2020 by Hanifa Idris Musindalo. It is averred that the 3rd protestor is only entitled to Bungoma/South Kanduyi/5310 as per the orders or decrees in Kisumu KCDC No. 12 of 2007 and Busia HCCC No. 39 of 2012. It is further averred that Shamim Idris Musindalo, Razia Idris and Shariff Idris were not party to the suits in Kisumu and Busia: and the fact that the 4 were allocated East Bukusu/South Kanduyi/6488 meant that they had received their share of the estate inter vivos, and they should not claim entitlement to equal shares with the other beneficiaries, as doing otherwise would be discriminatory and would give undue advantage to them as against the rest. The court is invited to take the inter vivos gifts into account to ensure an equitable distribution of the estate. It is averred that East Bukusu/South Kanduyi/6488 is still registered in the name of the deceased. It is averred that the 3rd protestor had contracted a second marriage after the divorce, and that she was illegally on East Bukusu/South Kanduyi/6488, as her matrimonial home, in view of the orders in Kisumu KCDC No. 12 of 2007. It is asserted that the 3rd protestor having remarried she did not qualify to be a beneficiary of the estate. It is averred that KAH 937P is not available for distribution, it was given to the 3rd protestor inter vivos, and she had sold it. Regarding Bungoma Municipality/517, it is averred that the same had not been given to the 3rd protestor, in the ruling in Kisumu KCDC No. 12 of 2007, instead she had only been given the business that was being operated on the premises on that land. On the allowing of Kshs. 30,000.00 per month, it is averred that the same was tied to the maturity of the children, and that all had reached the age of majority. It is averred that the 3rd protestor is not a beneficiary of the estate as her interests were taken care in the matrimonial proceedings in Kisumu KCDC No. 12 of 2007 and Busia HCCC No. 39 of 2012. It is averred that the 3rd protestor is not in court with clean hands, as she was party to the unauthorized expenditures of estate funds, for which she has failed to account.
12.The 3rd protestor filed a further affidavit, sworn on 6th January 2021, where she reiterates that contents of her earlier affidavit. She asserts that the court in Kisumu KCDC No. 12 of 2007 awarded her the proceeds of sale of KAH 937P, Auto Spares Shop at Bungoma and the plot at Sinoko South Kanduyi No. 5310. She mentions that Kshs. 30, 000.000 per month ,which the estate stopped paying, after the deceased died, and to which it is indebted to her. She avers that East Bukusu/South Kanduyi/6483 to 6488 were created from a subdivision of East Bukusu/South Kanduyi/1974, which was matrimonial property. The subdivision, she says, was for the purpose of getting a loan. She urges that the subdivision was done unfairly, and she wants the court to nullify the subdivision, and revert the property back to the East Bukusu/South Kanduyi/1974. Regarding North Wanga/Matungu/976, she avers that the deceased had gifted it to his mother-in-law, that is to say her own mother, and that he had put up a house on it for her. She avers that the following assets do not belong to the estate: Bungoma Municipality/517 on with Auto Spare Parts was situated; North Wanga/Matungu/976 and East Bukusu/South Kanduyi/6483-6488.
13.There is also an affidavit by Sharon Ashioya Makwata, sworn on 6th January 2021. She is a daughter of the late mother- in- law of the deceased, Susan Khavai Makwata, and a sister of the 3rd protestor. She avers that North Wanga/Matungu/976 had been gifted to her mother by the deceased, and that her late mother had been residing there until she died in 2010. She avers that her dowry testimony was held on the said parcel of land in 2006. She explains that her late mother’s remains were not interred on North Wanga/Matungu/976, as custom required that she be laid to rest at her matrimonial home. She accuses the 1st administratrix of moving into North Wanga/Matungu/976 and occupying it. The affidavit of Grace Vakola Makwata, sworn on 6th January 2021, is similar rein. She is also a daughter of the late Susan Khavai Makwata, and avers that the said property was gifted to her mother, and, after her death, her children were the persons who became entitled to it. Christine Maende, an allged sister of the deceased, swore an affidavit on 6th January 2021. She avers that North Wanga/Matungu/976 was bought by the deceased for his mother-in-law. She asserts that she was party to that sale transaction. The deceased allegedly put up a house on the land for her. She explains that, after she died her remains were interred elsewhere as demanded by custom.
14.The applicant swore an affidavit on 6th January 2021, specifically to respond to the affidavit of the 2nd protestor. He asserts that she never was married to the deceased, but conceded that she was the mother of Farida Idris Musindalo and Hanifa Idris Musindalo, who are rightful survivors of the deceased. He avers that she was happily married to one Masibo and they had 4 children together.
15.The 2nd protestor swore a further affidavit on 10th March 2021. Her said affidavit largely reiterates her earlier affidavit, that she was married to the deceased, they had children together, and their marriage was not dissolved. She concedes that she got other children outside marriage during the separation, but asserts that she never remarried.
16.Jafary Amabani Matalanga swore an affidavit on 10th March 2021. He is a cousin of the deceased. He avers that the deceased had 3 wives, being the 1st protestor, the 2nd protestor and the 3rd protestor. He avers that the deceased separated from the 2nd protestor due to personal differences. He avers that the 2nd protestor never remarried after she separated from the deceased.He further confirms that the deceased and the 3rd protestor divorced due to personal differences.
17.The 1st protestor responded to the affidavit of Grace Vakola Makwata, Sharon Ashioya Makwata and Christine Maende, by her affidavit of 12th March 2021. She says the 3 are all sisters of the 3rd protestor, who is the former or divorced wife of the deceased. She avers that there was an attempt to disinherit the rightful heirs of the deceased. She avers that being married by the deceased, she was settled on North Wanga/Matungu/976, and she lived there with her son, Asswin Idris Musindalo. She avers that after the deceased died, his remains were disposed of on North Wanga/Matungu/976. She argues that the deceased died long after the demise of the mother of the 3rd protestor, and the 3 had more than adequate time to pursue the issue of North Wanga/Matungu/976 with him.
18.The applicant swore a further affidavit on 6th January 2021, on the assets and liabilities of the estate. He gives a revised list of the survivors of the deceased. Revised because he has dropped some names, and added others. The survivors are said to Shamim Idris Musindalo, Fami Idris Musindalo, Raziah Idris Musindalo, Shariff Idris Musindalo, Farida Idris Musindalo, Hanifa Idris Musindalo, Aaswin Idris Musindalo, Umi Maloba Musindalo, Zubeida Ibrahim Khasabuli and Anzilani Effirie. He avers that the involvement of Gabriel Wesonga in the matter was mysterious to him, saying that he had been brought into the matter by the 1st protestor. He avers that North Wanga/Matungu/976 was an inter vivos gift to the late Susan Khavai. He accuses the 1st protestor of having caused KCB 256B to be transferred from the name of the deceased to hers. She is also accused of withdrawing funds from the accounts of the deceased in Diamond Trust Bank and Cooperative Bank of Kenya. He avers that the deceased had no shares in Idmus Trading Company Limited. He states that some of the accounts said to belong to the deceased belonged to the said company. He states that the income generated from East Bukusu/South Kanduyi/6483 to 6488 and Bungoma Municipality/517 were due to renovations that he had done on those assets. He states that Bungoma Municipality/517 had a pending a court case, with a bank seeking to exercise its power of sale. He avers that East Bukusu/South Kanduyi/6488 was pending discharge and release to Fami Idris, Razia Idris, Shariff Idris and Shamim Idris. He avers to have had disclosed the proceedings in all the bank accounts under his control. He also says that he had accounted for all expenditures. He urges that valuation be done on all the assets. He avers that the deceased had bought an asset that was adjacent to North Wanga/Matungu/976, whose current ownership was yet to be ascertained. He avers that the shop on Bungoma Municipality/517 did not belong to the deceased, as it had been settled in favour of the 3rd protestor in Kisumu KCDC No. 12 of 2007.
19.That affidavit was responded to by the other administrators, vide an affidavit sworn by the 1st administratrix on 12th March, 2021. She avers that the applicant favours his side of the family, and seeks to disinherit some of the other family members. She disputes the list of survivors, saying that Gabriel Wesonga as left out, while a divorced wife, Ummu Maloba Musindalo, was listed. She identifies the persons she says are the legitimate survivors, as 2 widows, 4 sons and 4 daughters, namely Zubeida Khasabuli Ibrahim, Selfa Queen Mudibo, Aaswim Idris Musindalo, Hanifa Idris Musindalo, Farida Idris Musindalo, Fami Idris Musindalo, Sharif Idris Musindalo, Razia Idris Musindalo, and Shamim Idris Musindalo. Ansilani Effirie is said to be the mother of the deceased, is listed as a dependant. She asserts that the deceased introduced Gabriel Wesonga as his son, and says that the deceased maintained him. She maintained that the marriage between the deceased and the 3rd protestor was dissolved by judicial process, and the 3rd protestor wasnot, therefore, a surviving spouse. She further contests that the deceased had gifted North Wanga/Matungu/976 to Susan Khavai Makwata, and asserts that the deceased was buried on the said parcel of land. She has also responded on KCB 256B, saying that the said vehicle had been given as security for a loan by the deceased, the applicant refused to release funds to repay the loan and to have the motor vehicle released, and she had to use her own resources for that purpose. She further explains that, under pressure from the beneficiaries, she withdrew the money in several accounts, and shared it out them amongst the survivors. She avers that the deceased had shares in Idmus Trading Company Limited, and was a director in the company. She discloses that the shareholding comprised of 7,000 shares, with the deceased holding 3,500 shares, Zubeida Khasabuli Ibrahim holding 1,250 and Farida Idris Musindalo holding 1,250. The applicant is accused of having fraudulently caused the change of ownership of the company, reports were made against him and criminal proceedings initiated against him. She asks the court to make orders for the balances on the account of the deceased and the company to be made available. She supports the plea that the assets of the estate be valued before final distribution orders are made. Regarding Bungoma Municipality/517, she avers that no shop unit on that property had been granted to the 3rd protestor. She avers that KCB 256B was an asset of Idmus Trading Company Limited. It is averred that all the motor vehicle owned by the company were taken away by the applicant, and he was using the same to earn income., but without paying the loans in respect of which the vehicles had been offered as security.
20.Gabriel Wesonga, the 2nd administrator, has sworn his own affidavit in response. He asserts that he was the biological son of the deceased, and identified the applicant as his younger brother. He asserts to be a survivor of the deceased and a beneficiary of his estate. He avers that the applicant conceded to his appointment as administrator, and he cannot at the late stage of confirmation of grant to say that he was introduced into the matter by the 1st administratrix. He avers that no paternity results have been placed on record by the applicant as proof that he is not a child of the deceased. He states that Joyce Achango and Francis Bellamton Odingason were his maternal grandparents. He states that his mother was the late Elizabeth Taka, who never married the deceased. He lived with his maternal grandparents, after the 3rd protestor was hostile to his living with the deceased. He said that he used his maternal grandparents’ national identity cards for the purpose of his registration for national identity card, hence the his national identity card does not bear the name of the deceased.
21.The 3rd administratrix also sworn an affidavit in response to the affidavit of the applicant of 6th January 2021, on 12th March 2021. She asserts that the 3rd protestor had divorced the deceased, and had property settled to her by the courts subsequently. She argues the claims by the 3rd protestor, viewed from that background, are fraudulent. She states that although the 3rd protestor was ordered in Kisumu KCDC No. 12 of 2007 to vacate the matrimonial property on East Bukusu/South Kanduyi/6488, but she never obeyed nor complied with that order.
22.The applicant then filed, a schedule of assets and a proposal on distribution, on 15th March 2021, dated 27th January 2021. He has identified the undisputed beneficiaries/survivors as be Farida Idris Musindalo, Hanifa Idris Musindalo, Shamim Idris Musindalo, Fami Idris, Razia Idris Musindalo, Sheriff Idris Musindalo, Aaswim Idris Musindalo and Zubeidah Idris Khasabuli. He has identified Ummu Maloba Musindalo, Gabriel Wesonga, Selfa Queen Madubo and Effirie Anzilani as disputed beneficiaries/survivors. He has identified the assets in the name of the deceased as KCB 256B, KBA 270P, East Bukusu/South Kanduyi/6483 to 6488, Bungoma Municipality/517, North Wanga/Matungu/976. Mumias Township/Block1/10, unknown parcel, shares in Mumias Sugar Company and insurance policy with Madison Insurance. He has listed East Bukusu/South Kanduyi/6483 – 6487, KCB 256B, unknown land at Matungu, Matungu/976 and KAJ 227P as disputed assets. He avers that the estate does not have any loan liabilities, but states that there was a dispute on Bungoma Municipality/517, pending in court and also on account of the court settlement in favour of the 3rd protestor. He has also listed the bank accounts that the deceased held in Diamond Trust Bank, Cooperative Bank of Kenya PLC, ABSA Bank and Family Bank. He calls for a valuation of the assets.
23.Directions on the disposal of the summons were made on 17th August 2020. The summons was to be disposed of orally.
24.The oral hearing happened from 16th March 2021. The applicant was the first on the witness stand. He reiterated the contents of his schedule of 27th January 2021, on who the legitimate survivors and beneficiaries, and how the said assets are to be distributed. He stated that East Bukusu/South Kanduyi/6488 did not belong to the estate in view of the orders in Busia HCCC No. 39 of 2012. He also stated that Bungoma Municipality/517 was not available as it had been settled to the 3rd protestor in Kisumu KCDC No. 12 of 2007. He also stated that North Wanga/Matungu/976 was a gift made inter vivos to his grandmother by the deceased and, therefore, it was also not estate property. He proposed that Bukusu/South Kanduyi/6483 be allocated to himself and Sharif Idris; Bukusu/South Kanduyi/6484 to Zubeidah Khasabuli Ibrahim and Aaswin Idris; Bukusu/South Kanduyi/6485 to Farida Idris He proposed that Mumias Township/Block 1/10 to be sold and the proceeds shared equally. The parcel of land, whose details are unknown, be allocated to the 1st protestor, on grounds that she had failed to disclose its details. During cross-examination, he conceded he had presented 3 proposals on distribution, filed on 14th May 2019, 27th January 2021 and 15th March 2021. He conceded the inconsistences in the said proposals, like that he had listed Gabriel Wesonga as a beneficiary in one of the proposals and not in the rest; and that he had done the same with Effirre Anzilani. He conceded that he had not allocated any of the landed assets to the widow. He stated that the deceased was buried on North Wanga/Matungu/976. Regarding KCB 256B, he said it was registered in the name of the 1st administratrix/1st protestor, but it was previously registered in the name of the deceased. It had a debt that was cleared by Idmus Trading Company Limited. He said the directors of the company, as at the date of the deceased’s death, were the deceased, Farida Idris Musindalo and the 1st protestor. He said KCB 256B belonged to the estate, but the liability was for the company. He stated that the current directors were himself and Shamim Idris. He said that he knew Selfa Queen Madubo as a wife of somebody else, but also as the mother of Hanifa Idris Musindalo and Shamim Idris Musindalo
25.The 3rd administratrix, Hanifa Idris Musindalo, followed. She identified Gabriel Wesonga as a son of the deceased, saying that the deceased had introduced him to them as such, and that he used to take care of him. She stated that the deceased used to trade as Idmus Trading Company Limited. She said that she had no details showing that Ummi Maloba Musindalo had remarried after the dissolution of her marriage to the deceased. Regarding Bungoma Municipality/517, she testified that Ummi Maloba Musindalo had not been given that property nor the shop on which it stood, but had only been given the stock in the ship. She said that she did not see a spare shop on Bungoma Municipality/517. She stated that the deceased had bank accounts in Barclays Bank, Cooperative Bank of Kenya, Diamond Trust Bank, Family bank and NCBA Bank, but qualified that by saying that some of them were for his business. She testified that the deceased was buried on North Wanga/Matungu/976. She stated that she was raised by the 3rd protestor, while her mother, the 2nd protestor, was at her parents’ home. She said that the deceased and the 2nd protestor never divorced. She said Idmus Trading Company Limited belonged to the deceased, the 1st protestor, and Farida Idris Musindalo.
26.The 1st protestor testified next, she said that she resided on North Wanga/Matungu/976. She identified Gabriel Wesonga as a son of the deceased, adding that she found him in the boma when she married the deceased, and the deceased had introduced him as his child, whereupon she took him a stepson. She mentioned that the stepchildren that used to visit her after the deceased died were Gabriel Wesonga, Hanifa Idris Mudindalo and Fami Idris Musindalo. She said Christine Maende was not a sister of the deceased, for the deceased had no sisters.
27.The 2nd administrator, Gabriel Wesonga, testified next. He described himself as the first born son. He said that no deoxyribonucleic acid (DNA) test was done to establish his paternity. He said that he lived with his maternal grandparents, Francis Odingason and Joyce Achengo, before he moved in with the deceased. He explained that he did not use the name of the deceased to register for national identity card as the deceased had a dispute with the 3rd protestor, which he did not wish to escalate. He said that the 3rd protestor was introduced to him by the deceased, but he never lived with her, although he lived with 1st protestor. He said that the deceased used to pay for his education, although he did not provide any documentary support for that contention. He said he was ready for a DNA test, and suggested that all the children of the deceased should be subjected to DNA test.
28.The 2nd protestor, Selfa Queen Mudibo, testified next. She said that her father was called Mudibo. She said she was also known as Mudibo Saida Nachimo, which she adopted after she married the deceased. She got 2 children with him, being Farida Idris Musindalo and Hanifa Idris Musindalo. She said Farida Idris Musindalo was raised by the 3rd protestor. She stated that dowry was paid for her. She said that the deceased had brothers, but she had not been introduced to his sisters. She said that she got two other children, Rosatia Wanga Wesonga and Marvine Okoyo Wesonga. She said they were sired by a person she did not name. She said she did not know the person known as John Masubo. She said she did not remarry after she separated from the deceased. She said that she attended the burial of the deceased, and that she had been included in the ceremonies. She said the deceased had built her a house at East Bukusu/South Kanduyi/6485. She said that she was the first wife, followed by 3rd protestor.
29.The 3rd protestor testified next, she said that she married the deceased in 1990, and was divorced from him in 2008. She got 2 settlements after the divorce, in Kisumu KCDC No. 12 of 2007and Busia HCCC No. 39 of 2012. She was given proceeds of a sale of motor vehicle, KAH 937P, an auto spares shop on Bungoma Municipality/517 and Bungoma/South Kanduyi/5310. She said she was also given East Bukusu/South Kanduyi/6488, which her children were to hold on her behalf. She said that she was not claiming anything else from the estate, apart from what was awarded to her by the court. She said she was also claiming accumulated monthly allowances of Kshs. 30,000.00 which were last paid in 2019. She said North Wanga/ Matungu/976 had been bought for her mother. She said that all her children were adults. She said that the Kadhi’s court did not award North Wanga/ Matungu/976 to anyone. She said that she was entitled to Bungoma Municipality/517 because the Kadhi’s court had awarded the spares shop on it to her, and she occupied the shop. She used to collect rent from Bungoma Municipality/ Bungoma Municipality/517, and had opened an account with Cooperative Bank of Kenya, with Farida Idris Musindalo and Fami Idris, after the deceased died, and they had collected Kshs. 7,000,000.00. She said that that happened before administrators were appointed. She conceded that as the date of the deceased’s death, she was not his wife, for she had been divorced. She said that she was the first wife of the deceased, and that she was never introduced to Gabriel Wesonga. She said she was not competing with anyone over the estate. She said that when she was married, she found Hanifa Idris and Fami Idirs Musindalo, with the deceased, but she did not know their mother, who she only got to meet much later. She said that she had been given Bungoma Municipality/517, because it housed the auto spares shop, called Pusra Autospares. She conceded that that business collapsed. She said that it was after she married the deceased that she got to know that he had had a relationship with the 2nd protestor, and they got the 2 children. She said that she was still doing business on Bungoma Municipality/517. She said that the 2nd protestor, was never married to the deceased. She said that there was no order for her to vacate, and that there was nothing like matrimonial property under Islamic Law.
30.Sharon Ashioya Makwata followed. She described herself as a sister of the 3rd protestor, and a sister-in-law of the deceased. She testified that North Wanga/ Matungu/976 had been bought for her mother by the deceased. She attested that the deceased had told them that he had bought it for her. Her late mother had a home elsewhere, but there were issues, after he father’s death, and her life was threatened, and the deceased bought her North Wanga/ Matungu/976, to settle her in a secure place. She said that the land was under caretakers, as she did not live there, after her mother died. She said that she never saw a will where the deceased had gifted the land to her mother. She said the deceased died in 2017 while her mother died in 2010. 2000, she said, was the year the deceased told them that he had bought North Wanga/ Matungu/976 for their mother. She said that there were no written records of the gift. She said that she was not the administrator of the estate of her late mother. She conceded that her mother was not buried on North Wanga/ Matungu/976, but on her matrimonial home. She said that North Wanga/ Matungu/976 was never transferred to the name of the mother. She said that the deceased was holding North Wanga/ Matungu/976 in trust for them.
31.Kerestine Maende Wangiri testified next. She described herself as a sister of the deceased. She said that the deceased had told her that he had bought North Wanga/ Matungu/976 for the mother of the 3rd protestor. She said that the deceased put up a structure on the land and settled her in it. She said that she was told that the mother of the 3rd protestor had issues after her husband died, hence the need to settle her on North Wanga/ Matungu/976. She said she was not present when North Wanga/ Matungu/976 was bought, she was only told about it. She said she was a witness to the purchase, she said the sale agreement, but she was not present at the sale.
32.At the close of the oral hearings, directions were given for filing of written submissions. There has been compliance, I have seen written submissions on the record, by the applicant; the 1st, 2nd, and 3rd administrators; and the 2nd protestor. I have read through the said written submissions, and noted the arguments made.
33.The application for determination is the summons for confirmation of the grant. The deceased died in 2017, that was long after the Law of Succession Act, Cap 160, Laws of Kenya, had come into force in 1981. He appears to have died a Muslim, from the material on record, but the issue as to the law to apply to the distribution of his estate, as between Muslim law and the Law of Succession Act, has not arisen, for the parties have not addressed me on it. That issue is relevant, because the Law of Succession Act provides for both. Section 2(1) of the Law of Succession Act applies the Act to estates of persons dying after the Act commenced in 1981. Section 2(3)(4) of the Law of Succession Act provide for application of Muslim law to estates of person who, at the time of their death, are Muslims. For avoidance of doubt, sections 2(1), (3) and (4) of Law of Succession Acts provide as follows:
34.Since the parties have not raised the issue of the substantive law on the disposition of the estate to be applied to the estate herein, I shall presume that they have made a choice of law as between Muslim law and the Law of Succession Act, in favour of the Law of Succession Act, and I shall take it that they have opted out of Muslim law in favour of the Law of Succession Act. I have my doubts, as to whether such opting out is permissible, given the language of section 2(3)(4) of the Law of Succession Act, which appears to wholly the application of the Act to the estate of a dead Muslim. As said above, the issue is not before me, so I shall leave it at that. I shall, accordingly, treat the estate herein as being subject to the Law of Succession Act, and not Muslim law.
35.The grant sought to be confirmed was made on the basis of the intestacy of the deceased. No one had alleged that the deceased died testate, and no will had been brought forth, for the purpose of being propounded. I shall take it that the deceased died wholly intestate. Since he died after 1st July 1981, his estate falls for handling under section 2(1) of the Law of Succession Act. Since had died intestate, Part V of the Law of Succession Act, shall apply to the distribution of his estate.
36.Distribution of intestate estates, which are subject to section 2(1) of the Laws of Succession Act, like the instant one, is on the basis of Part V of the Law of Succession Act, and the relevant provisions in Part V, for the purposes of this estate, are sections 35, 38, 40, 41 and 42 of the Law of Succession Act, which provide as follows:42.Where(a)an intestate has during his lifetime or by Will, paid, given or for the benefit of a child, grandchild or house or(b)Property has been appointed or awarded to any child or grandchild under the provisions of Section 26 or Section 35, That property shall be taken into account in determining the share of the net intestate finally accruing to the child, grandchild or house”
37.The process leading up to distribution of an estate is regulated by section 71 of the Law of Succession Act and Rules 40 and 41 of the Probate and Administration Rules. Under section 71 of the Law of Succession Act, the court is expected to make two confirmations, one is of the administrators, upon being satisfied that they had been properly appointed, they had administered the estate in accordance with law, and they were likely, upon them confirmed, to continue administering the estate in accordance with the law. Two, is confirmation or approval of the distribution of the estate proposed by the parties. Of course, the court is not bound by the proposals, and may overlook them, for reasons, to be recorded, and may proceed to distribute the estate in accordance with the applicable law.
38.The proviso to section 71(2) of the Laws of Succession Act and Rule 40(4) of the Probate and Administration Rules require the court to be satisfied as to the identities of the persons entitled to a share in the estate in intestacy, as well as their shares. It was stated in In the Matter of the estate of Ephraim Brian Kavai (Deceased) Kakamega HCSC NO. 249 of 1992 (Waweru J) (unreported), that those provisions impose a duty on the court to be satisfied on those matters, and to confirm the grant only where it is so satisfied. That would mean that if not satisfied, the court should not confirm the grant. See also In re estate of Robert Mungai Githinji (Deceased)[2016] eKLR (Musyoka J and In re estate of Benjamin Ng’ono Mbati (Deceased)[2019] eKLR (Musyoka J)
39.The proviso to section 71(2) of the Law of Succession Act and Rule 40(4) of the Probate and Administration Rule provide as follows:
40.Before I proceed to consider distribution of the estate herein, I shall have first to consider whether the proviso to section 71(2) of the Law of Succession Act and Rule 40(4) of the Probate and Administration Rules have been compiled with, to assess whether I should proceed to confirm the grant or not.
41.The first element of what I should consider is whether the persons beneficially entered to a share in the estate have been ascertained. The persons beneficially entitled to a share in an intestate estate would collectively refer to the beneficiaries of the intestate estate. They fall in 3 categories. First, would be the creditors of the estate. They come first because the law envisages that, in intestacy, it is the net estate which is distributed, meaning that the creditors have first priority over the other beneficiaries. They should be settled first, and the surplus, the net intestate, is thereafter shared out amongst the other beneficiaries. See sections 35(1)(b), 26(1), 28, 39, 40 and 83(f) of the Laws of Succession Act. Second, would be the surviving spouses, children, parents, siblings, and other relatives. These would be family members., principally, blood relatives of the deceased, save for the spouse. Thirdly, would be persons who have been applied to court under section 26 of the Law of Succession Act, and have been adjudged to have been dependants of the deceased as defined under section 29 of the Law of Succession Act, subject, of course, to Section 30.
42.So, have the administrators herein ascertained the persons beneficially entitled to shares in the estate, be they creditors, survivors or dependants? From the record before me, I am satisfied that the persons beneficially entitled have been ascertained. A good number of them are agreed upon, and some are disputed. But there is fair consensus on a good number of the persons who should be provided for in the estate.
43.In the category of creditors, I was told that the deceased did not owe anyone anything. Both sides seemed agreed on that score. There was mention of debts, but then it was said that they were settled, and what was outstanding was owed by a limited liability company in which the deceased had shares. It is trite company law that a limited liability company is separate legal entity from its shareholders. See Salmon vs. Salmon (1897) AC 22 (Lords Macnaghten, Halsbury & Herschell) and Romana Chepkemboi Yego & another vs. Jane Njuguna & another [2017] eKLR (Githua, J). Classically debts of such a company are not borne by the shareholders. There is a claim by the 3rd protestor, who is not a survivor of the deceased, for she had ceased to be his spouse, upon dissolution of their marriage, and, therefore, upon his death, she did not survive him as a spouse, and she was not his survivor for the purpose of Part V of the Law of Succession Act. The claim that she is agitating, on Bungoma Municipality/517; is not founded on a right accruing from from section 35(1) of the Law of Succession Act, but on a divorce settlement, made in Kisumu KCDC No. 12 of 2007. She seeks execution of a court decree, therefore, and I shall, accordingly, treat her as a creditor or claimant based on a court decree. I shall consider whether she is in fact entitled to Bungoma Municipality/517 later on in this judgment.
44.There is also a claim on North Wanga/ Matungu/976 by the estate of the late Susan Khavai Makwata, the mother of the 3rd protector. It is alleged that that property was a gift to the said estate. That case is agitated by the applicant, a grandson of the late Susan Khavai Makwata; the 3rd protestor, a daughter of Susan Khavai Makwata; and Sharion Ashioya Makwata, another daughter of the late Susan Khavai Makwata. Their case is that the property is not up for distribution as part of the estate of the deceased herein, for the deceased had gifted it to the late Susan Khavai Makwata, and, therefore, the estate herein held it in trust for the estate of the late Susan Khavai Makwata. Consequently, I shall also treat the estate of the late Susan Khavai Makwata as a creditor. I shall later on determine whether or not the said estate is entitled to North Wanga/Matungu/976.
45.In the category of survivors, same are agreed upon, and some are contested. Those agreed upon by the parties are surviving spouse, the 1st administratrix/1st protestor, Zebediah Khasabuli Ibrahim; 4 daughters, Farida Idris Musindalo, Hanifa Idris Musindalo, Shamim Idris Musindalo and Razia Idris Musindalo; and 3 sons, Fami Idris, Shariff Idris Musindalo and Asswin Idris Musindalo. One alleged surviving son is disputed, Gabriel Wesonga, and one alleged surviving widow is also contested, the 2nd protestor, Selfa Queen Mudibo. I shall have to consider, from the material placed on record, whether Gabriel Wesonga and Selfa Queen Mudibo are survivors of the deceased.
46.I will start by considering the case of Gabriel Wesonga, is he a son of the deceased, whether biological or otherwise? His case is that he is a biological child of the deceased. His mother was not married to the deceased. He was not in contact with the deceased until he got to high school. He lived with his maternal grantparents, and explained that when the deceased introduced him to the 3rd protestor, she rejected him and would not live him, and he only got to stay in the estate after the deceased married the 1st protestor. He obtained his national Identity card without using the national Identity card of the deceased, for he those of his maternal grandparents, on grounds of marital problems that were simmering between the deceased and the 3rd protestor. He produced no documents to link him to the deceased. No photographs that placed them together. No receipts to show that the deceased maintained him. Nothing to show that the deceased acknowledged him as his son. The documents placed on record by the applicant, as used by Gabriel Wesonga to obtain his national identity card, which Gabriel Wesonga has not impeached, show that he indicated his father as Francis Bellamtion Odingason and his mother was Joyce Achungo Odinga. He explained that those individuals were not his parents, but his maternal grandparents, with whom he lived. If that is the true position, it would mean that he obtained his national identity card on the basis of false information.
47.What should I make of all this? Gabriel Wesonga is supported by the 1st and 3rd administratrices, who assert that he is a son of the deceased. The 1st administratrix/protestor says he was introduced to her as a son by the deceased, while the 3rd administratrix says he lived with them as a son of the deceased. That is only material that I have linking him to the deceased. Is it adequate? I do not think so, in view of what I have noted in paragraph 46. In view of that the best way forward should be conduct of a DNA test, using samples from all the other alleged children of the deceased, and from Kerestina Maende Wangiri, the alleged sister of the deceased, to establish his paternity.
48.Regarding the 2nd protestor, her case is that she was the first wife of the deceased, having married him under customary law. She bore him 2 children, the 3rd administratrix and Farida Idris Musindalo. They divorced in 1990, and she left her children with the deceased, and they were raised by the 3rd protestor. She never remarried, according to her, and remained the spouse of the deceased, even though she went on to get other children outside marriage. The applicant and the 3rd protestor say she was not a spouse of the deceased for she never married him, and that they only had 2 children together. In any case, they say, she was married to another man whose name they disclosed, but she denied it. The other administrators are ambivalent about her status. In their initial papers, they did not recognize her as a surviving spouse, that is to say in the petition and in their response to the confirmation application. It is significant because these three include her daughter Hanifa Idris Musindalo. She is on record saying that she was not aware that the 2nd protester was entitled. She claims to be a customary law wife. Has she provided any proof of the same? She filed her affidavit of protest simultaneously with an affidavit of evidence of her witness, Jofary Amanisi Matalanga, a purported cousin of the deceased. She did not call him as her witness at the oral hearing. That would mean that his affidavit is of no probative value, for life has not been breathed to it. Kerestina Maende Wangiri, an alleged sister of the deceased was presented as a witness by the 3rd protestor. Curiously, she was not examined on the relationship between the deceased and the 2nd protestor. The Advocate for the 2nd protestor, Mr. Wekesa, did not cross-examine her at all, yet that was a godsend, in terms of getting evidence from her on whether the 2nd protestor was a spouse of the deceased, and on the status on that alleged marriage as at the date of the decease. A customary marriage is subject to customary law. To establish its existence, evidence that the customary law rites relating to it were performed, ought to have been adducced. See Ernest Kinyanjui Kimani vs. Muiru Gikanga and another (1965) EA 735 (Newbold VP, Crabbe & Duffus, JJA), Sakina Sote Kaittany & another vs. Mary Wamaitha [1995] eKLR (Gicheru, Kwach & Lakha JJA) and Atemo vs. Imujaro (2003) KLR 435 (Omolo, Shah & Waki, JJA). No such evidence tendered. So, I have no evidence that the 2nd protestor was ever a customary law wife of the deceased, and that such marriage subsisted upto the date of death of the deceased. The evidence on record is very clear that the 2nd protestor was not cohabiting with the deceased between 1990 and the date of his death. Indeed, she led no evidence whatsoever to demonstrate that she cohabited with him at any one time or at all. I would have no basis, in the circumstances, to conclude that a marriage arose between them out of cohabitation. See Hottensiah Wanjiku Yawe vs. Public Trustee [1976] eKLR (Wambuzi P, Mustafa & Musoke JJA).I am not satisfied, therefore, that the 2nd protestor was a surviving spouse of the deceased.
49.In the category of dependants, the name of Anziliani Effirie crops up. It was floated by the applicant, and there is support from the other administrators. She is to be the mother of the deceased. She was not listed as a dependant in the application, and her name only came up in subsequent filings. No evidence was led on her dependency on the deceased. No one mentioned whether she ever lived with the deceased or with any of his wives, and on whether the deceased used to provide for her immediately before his death. The 2nd protestor came into the matter in the guise of a surviving spouse. She did no present a case of any dependant in her affidavits and oral evidence. However, in her final submissions, an argument is made that she was a dependant of the deceased, within the meaning of section 29 of the Laws of Succession Act.
50.The question that I have to answer is whether Anzilani Effirie and the 2nd protestor were dependent on the deceased. The legal term “dependant,” is defined in section 29 of the Law of Succession Act, which is in Part III of the Act. It is significant that that word is not defined in the interpretation section, section 3, in Part I of the Act. The words and terms in the interpretation section are of general or universal application in the Act. The words and terms defined on interpreted in the body of the Act are of limited application or usage, for their meaning is restricted to the Part of the Act in which they are defined. Section 29, in which “dependant” is defined, is located in Part III of the Act, which provides for reasonable provision for “dependants.” The usage of “dependant” is, therefore, not universal, but limited to the purposes of Part III, reasonable provision for persons who were dependent on the deceased during his lifetime. “Dependants,” as defined in section 29, are the persons who ought to apply for reasonable provision under section 26. The usage of “dependant” is, therefore, limited to section 26 of the Act. It can only be used with respect to applications made under section 26, by persons, defined in section 29, who have approached the court under section 26, asking the court to find that they were “dependants” of the deceased, on account of having been dependent on him, and, upon the finding being made, asking the court to make provision for them out of the estate, in circumstances where provision has not been made for them in testacy or intestacy. A person cannot claim to be a “dependant” unless they have made an application under section 26, the court, has made a finding that they are a “dependant,” and has made provision for them out of the estate. “Dependant” is not the other word for beneficiary of the estate of a deceased person or survivor of such a deceased person.
51.The court makes an order of reasonable provision, under section 26, on the criteria set out in section 28 of the Act. That is to say that for the court to find that a particular person was a “dependant” of the deceased, that person must adduce evidence that brings them within the criteria or circumstances set out in section 28. Section 28 lists the factors or circumstances that a court, faced with an application under section 26, takes into account. These include the nature and amount of the estate of the deceased, the capital or income from any source of the alleged “dependant,” the existing and future needs of the alleged “dependant,” any advancements or other gifts made to the alleged “dependant” by the deceased, the conduct of the alleged “dependant” in relation to the deceased, the situation and circumstances of the deceased’s other dependents and the beneficiaries under any will, and the general circumstances of the case.
52.Sections 26, 28 and 29 of the Laws of Succession Act, provide as follows:
53.From a reading of section 26, it is plain that discretion to declare an individual a “dependant,” as defined under section 29, and to order provision for such a “dependant” is exercisable only on “an application by or on behalf of such “dependant.” From the material before me, Anzilani Effirie and the 2nd protestor have not made an application under section 26, and none was made on their behalf by anyone. No court has made any order under section 26, finding that the 2 were dependants of the deceased. No court has made any order making provision for them. Consequently, they are not “dependants” of the deceased. In the absence of an application under section 26 of the Act, there is no basis for me to exercise discretion in their favour, and find that the 2 are dependants of the deceased, in respect of which provision ought to be made.
54.Anzilani Effirie is the mother of the deceased. Under section 29(b) of the Act, she can only qualify as a “dependant” if she was dependent on the deceased immediately prior to the death of the deceased. That would mean that the court would expect proof of such dependency. No evidence of that nature was led with respect to her. No evidence was adduced to show that she was being maintained by the deceased immediately before he died. No information was given on where she lived and with who, and on who provided for or supported her. Without such evidence there can be no basis for exercise of discretion under section 26, to find and hold that she was a dependant.
55.For the 2nd protestor, she would qualify to be a “dependant” upon her status as surviving spouse or former spouse of the deceased. According to section 29(a) of the Act, a surviving spouse or former spouse need not prove dependency. In the case of the 2nd protestor, I have already found and held, in paragraph 48, above, that she had provided no proof that she was a surviving or former spouse of the deceased. She does not qualify to be a “dependant” under section 29(b) either. There is, therefore, no basis at all for her to be considered and treated as a “dependant” of the deceased, and for provision to be made for her as a dependant of the deceased out of the estate.
56.One cannot talk about distributing an estate to persons beneficially entitled without talking about the assets or property to be distributed. Before the shares to which the ascertained persons are ascertained, the assets to be distributed ought to be ascertained first. Has that been done here? I believe the parties have done so. They have agreed on some of the assets, but some of the assets are disputed. The assets that would be available for distribution are that are the free property of the deceased. “Free property” of a dead person is defined in section 3(1), as property, that he could dispose of by will, and in respect of which his interest is not terminated by his death. Free property would include assets that are registered in the name of the deceased, which are not encumbered by way of either being charged or mortgaged. Assets subject to litigation or subject to sale transactions as at the date of the deceased death would not be free and available for distribution. In a word, the assets available for distribution ought to be undisputed or contested. I will need, therefore, to identify the undisputed or uncontested assets of the estate, which should be what is to be distributed.
57.I have seen on record documents relating to registration of the following assets in the name of the deceased:a.Certificate of official search, dated 16th June 2017, for East Bukusu/South Kanduyi/6484, was registered in 1994;b.Certificate of official search, dated 16th June 2017, for Bungoma Municipality/517, registered in the name of the deceased in 2006, with a charge registered in the favour of Family Bank in 2016 to secure a loan of Kshs. 10,800,000.00;c.Certificate of official search for North Wanga/Matungu/976, registered in the name of the deceased in 2000, with a charge to Barclays Bank created in 2000;d.Certificate of official search, dated 16th June 2017, for East Bukusu/South Kanduyi/6485, registered in the name of the deceased, with charges in favour of Cooperative Bank of Kenya, registered in 2004, 2006 and 2007, to secure loans and advances of Kshs. 1,520,000.00, Kshs. 500,000.00 and Kshs. 260,000.00, respectively;e.Certificate of official search, dated 16th June 2017, for East Bukusu/South Kanduyi/6486, registered in the name of deceased in 1994;f.Certificate of official search, dated 16th June 2017, for East Bukusu/South Kanduyi/6487, registered in the name of the deceased in 1994;g.Certificate of official search, dated 16th June 2017, for East Bukusu/South Kanduyi/6483, registered in the name of the deceased in 1994;h.Certificate of official search, dated 16th June 2017, for East Bukusu/South Kanduyi/6488, registered in the name of the deceased in 1994, with several charges created in favour of Cooperative Bank of Kenya in 2004, 2006 and 2007 to secure various loans and overdrafts; andi.Copy of records for KBA 270P, registered in the name of the deceased in 2007;
58.Of the assets listed above, in the name of the deceased only the following are free, unencumbered, undisputed and uncontested, and available for distribution, that is to say:a.East Bukusu/South Kanduyi/6483;b.East Bukusu/South Kanduyi/6484;c.East Bukusu/South Kanduyi/6486;d.East Bukusu/South Kanduyi/6487; ande.KBA 270P
59.Contrary to what the parties, especially the applicant, had represented, the estate appears to be heavily indebted, to banks especially. Most of the assets are encumbered, with charges, securing loans and overdrafts. These assets would be unavailable for distribution for that reasons. The assets that are charged, and it would be appear that the charges have not been discharged, are not available for distribution, and would remain unavailable until the said charges are discharged, after settlement of the loans and clearance of the overdrafts. The assets with charges are Bungoma Municipality/517, North Wanga/Matungu/976, East Bukusu/South Kanduyi/6485 and East Bukusu/South Kanduyi/6488. In addition to the charges, Bungoma Municipality/517 is also subject to litigation, in Kakamega HCCC No. 3 of 2019, since transferred to the High Court at Bungoma. Even if the charge on Bungoma Municipality/517 is discharged, the property would still be unavailable for distribution, until the litigation is finalized. Other than the charge over North Wanga/Matungu/976, there is also a charge registered against that title, in favour of Wycliffe Ambetsa Oparanya, claiming a purchaser’s interest, having allegedly bought the property from the deceased in 2007/2008. Even if the charge over North Wanga/Matungu/976 is discharged, the same would still be undistributable on account of the said caution, which is an encumbrance on the title.
60.The 3rd protestor lays claim to Bungoma Municipality/517. She claims that in the divorce settlement in Kisumu KCDC No. 12 of 2007, the said property was given to her by the court, and, therefore, the same is not available for distribution, as it was not part of the estate. She has placed on record the judgment of the court, dated 14th September 2010, to support her case. The relevant of the judgment, at page 19 and reads as follows:
61.My understanding of the above judgment is that each party was to retain the assets registered in their respective names. The deceased got to retain his East Bukusu/South Kanduyi lands, and North Wanga/Matungu/976 and 517. That judgment did not, therefore, give or award the 3rd protestor Bungoma Municipality/517. She says that the auto spares shop given to her was operated from Bungoma Municipality/517, and the award of the business amounted to an award of the land, Bungoma Municipality/517. With respect, that is not what the judgment says. Each party retained what already belonged to them. Bungoma Municipality/517 belonged to the deceased, and so the court stated that he retained it. The auto spares business belonged to the 3rd protestor, and the court stated that she was entitled to it. She was not awarded Bungoma Municipality/517, and she is not entitled to it. The only property given to her, for the purpose of just and equitable send off, under Quran 2:231, 241 and 6.2, was the land at Sinoko – South Kanduyi/5310. She has not claim whatsoever over Bungoma Municipality/517. It is an asset in the estate of the deceased and should be available for distribution as such, once the encumbrances are removed and the litigation ended.
62.North Wanga/Matungu/976 is mentioned in the judgment of the Kadhi’s court of 14th September 2010, in Kisumu KCDC No. 12 of 2007. The 3rd protestor, and her sisters, claim it as a gift to their mother by the deceased. They claim that he bought it for her, and the instant estate holds in trust for her estate. I need to say several things about this. One, the mother of the 3rd protestor is dead. She cannot agitate a claim against the estate from her grave. A claim can only be made on her behalf by her legal or personal representative. Such a legal or personal representative can only be appointed by the court vide a grant of representation, taking the form of a grant of probate or of letters of administration. None of the persons agitating the claim on behalf of the estate of the late Susan Khavai Makwata have produced grants of representation as proof that they have legal authority, to agitate the claims on behalf of the said estate. Litigating on behalf of an estate without legal authority amounts to intermeddling with that estate, according to John Kanyoki Kieti vs. Annah Ndileve Kieti &another [2001] eKLR (Mwera, J), and intermeddling is a criminal offence, under section 45 of the Law of Succession Act. Conduct that amounts to criminal activity has no iota of legitimacy. Pursuing a claim on behalf of the estate of the late Susan Khavai Makwata, without a grant of representation, is an illegitimate exercise, from which no orders of whatever colour should be available.
63.Secondly, even if the claimants could prove legitimacy, from a grant of representation or otherwise, the claim would still be sterile, for 2 reasons, one, the High Court no longer has jurisdiction to determine issues around ownership of and title to land, by dint of Article 165(5) of the Constitution, for that jurisdiction has been vested in the court contemplated under Article 167(2) of the Constitution. That court is the Environment and Land Court, established under Environment and Land Court Act, No. 19 0f 2011. The claim that North Wanga/Matungu/976 was the subject of a gift by the deceased to the late Susan Khavai Makwata, and that the said property had ceased to belong to the deceased and had become the property of the late Susan Khavai Makwata, is an issue of title and ownership. The High Court would have no jurisdiction to determine whether the title in North Wanga/Matungu/976 moved from the deceased to the late Susan Khavai Makwata, and if the claimants were really serious about asserting that title then they should have placed the matter before the Environment and Land Court. Two, In the re Estate of Kimani Kimuthia [2008] eKLR (Ibrahim, J), it was stated that succession proceedings are not the appropriate way to challenge the title of the deceased to assets said to comprise his estate, and that a claim that such assets are subject to a trust in favour of the claimant, ought to be subjected to separate proceedings, where the claimant can prove the trust, after which they can seek revocation of the title or its particulars, which would require declaratory orders on the existence of the trust. It was said that declaration of trusts of land is not the function of a succession case, where the claimant is neither a beneficiary of the estate nor a survivor of the deceased, and succession proceedings would not be the appropriate forum for resolution of seriously contested claims against the estate by third parties. The probate court would have no jurisdiction to determine a claim of trust or to grant relief related to it. See also In re Estate of Mwangi Erikayo (Deceased) [2017] eKLR (Waweru, J), In re Estate of Henry Njau Ngotho (Deceased) [2020] eKLR (Muchelule, J) and In re Estate of James Mwireri Kamau (Deceased) [2018] eKLR (Ndung’u, J).
64.Thirdly, the claimants argue that North Wanga/Matungu/976 was in the nature of an inter vivos gift to the late Susan Khavai Makwata. They have cited In re Estate of Godana Songoro Guyo (Deceased) [2020] eKLR (Nyakundi, J). Such gifts were defined In re Estate of Gedion Manthi Nzioka (Deceased) [2015] eKLR (Nyamweya, J). An inter vivos gift is made between living persons. The legal requirement is that it be granted by deed or instrument in writing or delivery or by way of resulting trust or registration of transfer or declaration of trust in writing. For it to be valid it must be in writing. It was said, In re Estate of Phylis Muthoni M’Inoti (Deceased) [2019] eKLR (Gikonyo, J), where it is alleged that the deceased person had made an inter vivos gift of land, but died before transferring it to the claimant, the claimant ought to demonstrate, by evidence on the conduct of the deceased, that there was intention on his part to make the gift, entitling the claimant to enforce it against the estate. That can be demonstrated by evidence demonstrating that the deceased had taken same decisive step or steps towards actualizing the gift, by way of either obtaining consents of the Land Control Board, to either subdivide the land or transfer it to the claimant. See also In re Estate of Nyachieo Osindi (Deceased) [2019] eKLR (Ougo, J). In the instant case, the deceased had allegedly put the late Susan Khavai Makwata in possession of North Wanga/Matungu/976, but he took no further step, in terms of having the title to the property registered in the name of the said late Susan Khavai Makwata. He never sought consent of Land Control Board. When the late Susan Khavai Makwata died in 2007, she was buried at her late husband’s property, and not on North Wanga/Matungu/976, where a home had allegedly been established for her by the deceased. In any case, the claimants took no steps to have the deceased herein transfer the property to the late Susan Khavai Makwata between 2000 when the land was allegedly bought, and 2007, when she died, and 2017, when the deceased died. Ulitimately, the probate court would still not be the appropriate forum to establish whether there was a valid inter vivos gift or not.
65.Finally, it would appear that the 3rd protestor, a daughter of the late Susan Khavai Makwata, after she divorced the deceased in 2010, she placed North Wanga/Matungu/976 before the Kadhi’s court, in Kisumu KCDC No. 12 of 2007, for distribution as matrimonial property. In his judgment of 14th September 2010, the Kadhi stated that the concept of matrimonial property was alien to Muslim Law, and stated the principle that each spouse gets to keep the assets registered in his or her name. The Kadhi ruled that the deceased was the registered proprietor of North Wanga/Matungu/976, and that under Muslim law he was entitled to retain ownership of that property. I have recited verbatim the relevant portion of that judgment in paragraph 60, hereabove. The pleadings in Kisumu KCDC No. 12 of 2007 are not before me, and I may not be clear on the issues before the Kadhi, but one thing that is clear is that the 3rd protestor had placed that property before the Kadhi, for a determination one may or the other, and the Kadhi found and held that the deceased was entitled to that property as against the 3rd protester. The one question that lingers in my mind is, if North Wanga/Matungu/976 had been bought by the deceased for his mother-in-law, why was the 3rd protestor claiming it, in Kisumu KCDC No. 12 of 2007, to be her matrimonial property? Was it her matrimonial property or the property of her mother?
66.Let me turn to East Bukusu/South Kanduyi/6488. Other than the encumbrances on East Bukusu/South Kanduyi/6488, there is something else affecting this property, the same is subject to an order in Busia HCCC No. 39 of 2012, which was a suit of division of matrimonial property between the deceased and the 3rd protestor. It was ordered, in that matter, by consent, on 7th October 2015, as follows;
67.The effect of the consent order of 7th October 2015 is that East Bukusu/South Kanduyi/6488 was settled in favour of the 4 children of the 3rd protestor. Having been settled by an order of the court the said property is not part of the estate of the deceased, and is not available for distribution. It should not be the schedule of the assets to be distributed. The fact that the transfer has not been effected as ordered, ostensibly, because the property still unencumbered, and cannot be transferred until the encumbrances are removed, does not mean that the property still forms part of the estate. However, it is proper that the settlement was disclosed, so that the court can apply section 42 of the Law of Succession Act, by bringing it to the hotchpotch, for noting and taking into consideration, for the purpose of ensuring equality and equity in the distribution of the estate.
68.For avoidance of doubt, section 42 of the Law of Succession Act provides as follows: -
69.No documents were availed or presented relating to Mumias Township/Block1/10. Without title or registration documents, the court has no way of telling whether the said property belonged to the deceased or not. The court cannot distribute assets without proof that the same formed part of the estate of the deceased. The same would apply to the shares held with the Mumias Sugar Company.
70.The applicant has also proposed distribution two parcels of land whose registration details were not given. One is said to be the ancestral home at Napeta, Mumias, and an unknown parcel of land said to be next to North Wanga/Matungu/976. I reiterate what I have stated in paragraph 69 hereabove, that the court only distributes assets that clearly from part of the estate of the deceased. I take judicial notice of the fact all land within Kakamega County is registered. Not a single one is without a reference number. It is upto the parties to do due diligence, and obtain the relevant registration particulars of any property that they allege belongs to the estate. The court will not act blindly, otherwise it would run the risk of distributing non-existent assets.
71.It emerged from the oral hearings that the deceased held shares in Idmus Trading Company Limited. Documents lodged herein by the applicant indicate that he said company is now owned wholly by Fami Idris and Shariff Idris Musindalo, as sole administrators. It is not clear as to what happened to the shares that the deceased held in the said company before Fami Idris and Shariff Idris Musindalo came on board as shareholders and directors. Whereas, there are documents showing that Zubeidah Khasabuli Ibrahim and Farida Idris Musindalo resigned and forfeited their shares, there is not documentation showing what became of the shares held by the deceased. They cannot have disappeared into the air. If they were taken up by Fami Idris and Shariff Idris, the 2 ought to explain how they managed to have the shares belonging to the deceased transferred to their names before the grant was confirmed. The said shares are the property of the estate, and they could only move from the estate to the beneficiaries through these proceedings at confirmation. If they were transferred outside of these proceedings then the transfer was unlawful, in contravention of section 45 of the Law of Succession Act, and amounted to criminal conduct on account of intermeddling. See Patrick Kibathi Kigwe & 2 others vs. Charles Kigwe Gathecha [2015] eKLR (Muigai, J), Romana Chepkemboi Yego & another vs. Jane Njuguna & another [2017] eKLR (Githua, J) and Pacific Frontier Seas Ltd v Kyengo & another (Civil Appeal 32 of 2018) [2022] KECA 396 (KLR) (M'Inoti, J Mohammed & Kantai, JJA).
72.The deceased appears to have had done much of his business through the company, and much of his perceived wealth was held by the company. The most vicious fights between the administrators centre around the assets of the company, and the fuss over the accounts and incomes also appear to be revolving around the assets of the said company. To bring sanity to the estate the shares held by the deceased should be restored to the estate for distribution.
73.What I have said is paragraph 71 above applies equally to the handling of KCB 256B. The vehicle was registered in the name of the deceased and Mwananchi Credit Limited, as at the date of the demise of the deceased. The vehicle had apparently been offered as security for a loan. It emerged that the 1st protestor repaid the loan and salvaged the vehicle, and subsequently had it transferred to her name. KCB 256B is a capital asset. It could not move from the estate of the deceased to the 1st protestor without going through this cause. It could only be transferred at confirmation. See sections 55 and 71 of the Law of Succession Act, and Nirmal Singh Dhanjal vs. Joginder Singh Dhanjal & 4 others [2018] eKLR (Visram, Karanja & Koome, JJA) and Simon Mwangi Ngotho & another vs. Susannah Wanjiku Muchina [2022] eKLR (Kasango, J). The fact that the 1st protestor used her own resources to protect it did not mean that she acquired property rights over KCB 256B. All she did was to secure or salvage the property, but it remained estate property. Ideally, she should have used estate funds to salvage it. If she used her own resources, then what she should have done thereafter was to charge the estate for it, and recover it as a debt from the estate. She had no right to have an estate asset transferred to her own name before the grant was confirmed. See Paul Tono Pymto & another vs. Giles Tarpin Lyonnet [2014] eKLR (Ochieng, J).
74.The estate appears to be heavily indebted to the banks, and most of the landed assets appear to be collateral for most of these loans. Alternatively, it could be that the estate is debt free, but its assets have been encumbered to secure loans advanced to other persons. The administrators have not given an account of what they have done towards settlement of these loans, and the subsequent discharge of the changes. Whereas they propose distribution of these encumbered assets they have not made any provisions for the settlement of the debts. Distribution of encumbered assets usually has the effect of pushing or transferring the debts to the beneficiaries. The debts ought to be cleared first before the assets are distributed, so that the debts do not get pushed to the said beneficiaries. The debts are of the estate, not of the beneficiaries, and the duty of settling them lies with the administrators, not the beneficiaries. So, the issue of the debts being transferred to beneficiaries of the assets should not arise at all. See section 83(d) of the Law of Succession Act. The administrators should bear their burden, and they should not even countenance transferring it to the beneficiaries. In any event, the assets cannot be transferred to the names of the beneficiaries before the debts are cleared and the encumbrances removed. It would be unjust to burden the beneficiaries with the debts of the estate. Let the administrators clear the debts first and free the assets from the charges, before distribution can be considered. See Loise Wambui Njoroge vs. Albert Thuo Cege & 5 others [2017] eKLR (Muchelule, J) and In re Estate of Mbiyu Koinange (Deceased) [2020] eKLR (Muchelule, J). Encumbrances reflect third party interests, which have to be resolved first, before the subject assets can be distributed in probate proceedings.
75.The debts appear to be fairly huge, and I cannot tell whether the assets are sufficient to settle them. It would be imprudent to distribute the free assets before the debts are properly ascertained and paid, and the charges discharged. Both sides propose that the assets of the estate be valued before distribution. I agree. The same would assist in settling debts and liabilities, and guiding the process of distribution.
76.Consequently, the final orders that I shall make in the circumstances are as follows:a.That I hereby postpone, in terms of section 71(2)(d) of the Law of Succession Act, confirmation of the grant herein;b.That I direct the administrators, jointly and severally, in the next 45 days, to file and serve a full inventory of all the debts owed by the estate to financial institutions, with proposals on how they intend to settle those debts;c.That should it turn out that all the said debts have been settled and the charges discharged, let the appropriate supporting documentation be filed herein and served within 45 days;d.That the applicant has 45 days to cause the shareholding, in Idris Trading Company Limited to be restored to the position it was at as on the 2nd January 2017;e.That the 1st administrator/1st protestor/Zubeida Khasabuli Ibrahim has 45 days to restore the registration of KCB 256B to the name of the deceased;f.That I direct that the paternity of George Wesonga to be determined in the terms proposed at paragraph 47, above, of this judgment, in the next 45 days;g.That I direct the administrators, jointly and severally, to cause all the assets discussed in this judgment, whether belonging to the estate or not, to be valued and the valuation reports thereon to be lodged herein in the next 45 days;h.That the matter shall be mentioned after 45 days, to confirm compliance and for further directions;i.That final orders on distribution shall be made only after full compliance with all the directions given above;j.That costs shall be in the cause; andk.That any party aggrieved by any of the findings, holdings and orders made here above has leave of 28 days to file an appeal at the Court of Appeal.
77.It is so ordered.
JUDGMENT DELIVERED, DATED AND SIGNED IN OPEN COURT AT KAKAMEGA THIS 7thDAY OF October,2022.W MUSYOKAJUDGEMr. Erick Zalo, Court AssistantMr. Manyange, instructed by Kittony Manyange Tonui, Advocates for the applicant/4th administrator and the 3rd protestor.Mr. Shivega, instructed by Victor Shivega & Company, Advocates for the 1st, 2nd and 3rd administratorsMr. Wekesa, instructed by Amari Wekesa & Company, Advocates for the 2nd protestor12