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In re Estate of Morris Amukoye Akuwana (Succession Cause 834 of 2013) [2022] KEHC 14992 (KLR) (4 November 2022) (Judgment)
Neutral citation:
[2022] KEHC 14992 (KLR)
Republic of Kenya
Succession Cause 834 of 2013
WM Musyoka, J
November 4, 2022
IN THE MATTER OF THE ESTATE OF MORRIS AMUKOYE AKUWANA
Judgment
1.This relates to the estate of Morris Amukoye Akuwana, who died on 30th August 2008, according to Certificate of Death No. 294971. The letter from the Chief of Khayega Location, dated 1st November 2013, indicates that he was survived by 3 sons: Patrick Shikami Amukoye, Alexander Mutoko Amukoye and Musee Hudson Amukoye. He was said to have died possessed of Isukha/Lukose/1438. Another letter from the Chief was lodged here on 13th November 2013, bearing an even date, disclosing the name of Joyce Khatenje Masee, an unmarried daughter.
2.Representation to his estate was sought in a petition lodged herein on 8th November 2013, by Patrick Shikami Amukoye, in his capacity as son. He listed the 3 sons mentioned in the Chief’s letter, and 1 daughter, Joyce Khatenje Masee, as the persons who survived the deceased. The deceased was said to have died possessed of Isukha/Lukose/1438. Letters of administration intestate were made to the petitioner on 18th February 2014, and a grant was issued to Patrick Shikami Amukoye, dated 21st February 2014. I shall refer to him hereafter as the administrator.
3.A summons for confirmation of grant was lodged herein on 28th July 2014, of even date, proposing distribution of the estate, Isukha/Lukose/1438, to the 3 sons equally, and a small portion to the daughter. The sons were to get 2 acres each, with the daughter taking 0.5 acre. A protest was raised to the application, by Musee Hudson Amukoye, in an affidavit sworn on 22nd September 2014, saying the inclusion of Joyce Khatenje Masee was in bad faith, as there were other daughters, who were not disclosed. Patrick Shikami Amukoye raised a protest on 17th November 2014. He disclosed that the deceased had 5 daughters, in addition to the 3 sons. The daughters were said to be Julieta Shihafu, Joyce Khatenje Musee, Christine Khayichia, Rose Khasungu, and Consolata Amukoya. It was also alleged that there was a buyer, said to be Henry Asicha. He proposed that the estate should be shared strictly between the 3 sons, with Patrick Shikami Amukoye getting 3 acres, Alexander Mutoka Amukoye 0.5 acres and Hudson Musee Amukoye 3 acres. Alexander Mutoka Amukoye is given a smaller share because the deceased had paid Kshs. 300,000.00 to cater for expenses incurred with respect to a criminal case that faced the said Alexander Mutoka. He said the land had been demarcated on the ground, and everyone knew their share on the ground. Julieta Shihela Ikoha, Rose Khasungu Ambani, Christina Khaecha Wendo and Joyce Khatenje Masee swore a joint affidavit on 19th December 2014. They eventually renounced their shares in the estate, on grounds that they were married, but said that Joyce Khatenje Masee was unmarried, and should get the 0.5 acre allocated to her. The application dated 28th July 2014 was withdrawn on 11th July 2018. No reasons were given for the withdrawal, but I suppose it was because the same was incompetent, as the applicant did not hold a grant, and, therefore, there was no basis upon which he could ask the court to confirm a grant he did not hold. The withdrawal paved way for the filing of the application which is the subject of this judgment.
4.The application that I am tasked with determining is dated 3rd July 2018. It is at the instance of Patrick Shikami Amukoye, the administrator. It identifies the survivors of the deceased to be 7 individuals, namely Patrick Shikami Amukoye, Hudson Amukoye, Juliet Amukoye, Joyce Khatenje Masee, Christine Khaicha, Rose Khasungu and Consolata Amukoye. The property proposed for distribution is Isukha/Lukose/1438. It is shared out between Patrick Shikami Amukoye, Hudson Musee Amukoye and Alexander Mutoka Amukoye at the ratio of 3:3:05.
5.A protest was raised to the proposals by way of an affidavit of protest, sworn on 23rd October 2018, by Alexander Mutoka Amukoye. It is averred that the survivors of the deceased were 8, being Patrick Shikami Amukoye, Julieta Shihela Ikoha, Alexander Mutoka Amukoye, Joyce Khatenje Masee, Rose Khasungu Ambani, Christine Khaicha Wendo Consolata Amukoye and Hudson Musee Amukoye. The objection is that Joyce Khatenje Masee, an unmarried daughter of the deceased, who is on the estate, has not been provided for. Secondly, that there was no indication on whether the other daughters were interested in the estate or not. Thirdly, that the distribution was discriminatory. He proposes distribution between the 3 sons and Joyce Khatenje Masee, so that the sons get 2 acres each, while Joyce Khatenje Masee should get 0.5 acre. He proposes that the other daughters should not be allocated a share as they are happily married. He says that Hudson Musee Amokoye and Patrick Shikami Amukoye do not rank above the rest, and, therefore, they should not get a lion’s share of the estate. He asserts that the deceased had not distributed his estate prior to his death. I shall refer to Alexander Mutoka Amukoye as the protestor.
6.The daughters, that is to say Julieta Shihela Ikoha, Consolata Amukoye, Rose Khasungu Ambani and Christine Khaicha Wendo swore affidavits on 7th May 2019, renouncing their rights to the estate, on the basis that they are happily married and are not interested in taking a share in the estate. Joyce Khatenje Masee swore her affidavit on 7th May 2019, supporting the proposals by the protestor, and agreeing to take the 0.5 acre that it was proposed should be given to her. There is also a consent on distribution, dated 7th May 2019, filed contemporaneously with the affidavits by the daughters, signed by the protestor and the daughters.
7.The oral hearings began on 28th November 2019, with the protestor, Alexander Mutoka Amukoye, on the witness box. He largely regurgitated the contents of his affidavit. He testified that his siblings had chased him away from the land, and that he lived at Eldoret. He said that he had not seen any document showing that the deceased had given him land. Joyce Khatenje Masee followed. She said she was not married and lived on the land at her parents’ house. She said she did not support the proposal by the administrator. She said that all her sisters were married. She alluded to the administrator beating her, in a quest to chase her away from her father’s land. She supported the proposal by the protestor. She said that she was unaware that the protestor had a case, and that land was sold because of the case. She said that if any land was sold then it must have been the work of the deceased, the administrator and Hudson, as the protestor was as that time at Thika. She said that the administrator and Hudson had chased Alexander Mutoka Amukoye away from home, and she did not know where he lived. Julieta Shihela Ikoha followed. She supported the evidence given by Joyce Khatenje Masee. Christine Khaicha Wendo was next. She too supported the evidence given by Joyce Khatenje Masee. She said she also wanted a share in her father’s land, her own share. She said that she had issues in her marriage. She said she wanted a small piece, although Joyce Khetenje Masee could be given a bigger piece. Rose Khasungu Ambani also testified. She did not support the proposals by the administrator. She said she was aware that Alexander Mutoka Amukoye had a case. She said that the deceased did not sell any land over any case. The land that the deceased died possessed of was 6.5 acres, and the administrator and Hudson Musee were in possession. She said that the protestor lived on land bought by his son, but said he was entitled to his share of his father’s land. She said she was not interested in taking up her share in the father’s estate. She said Joyce Khatenje Masee should get 0.5 acres. Consolata Queen Amukoye followed. She said Joyce Khatenje Masee was entitled to her share, and she was surrendering her share to her. She said that the deceased had shared out his land before he died, although she was not present. Alexander Mutoka Amukoye had a home in the land before he moved out to the Scheme. She said that she was aware that Alexander Mutoka Amukoye had a criminal case. She said that the deceased had not given out his land to the daughters. She said that the deceased had not stated that that was to be inheritance. She said Joyce Khatenje Masee should get ½ share, and the sons should share the rest. Christine Khaicha Wendo followed. She supported the proposal by the protestor. She said that she did not want a share in the estate, unless the sons wanted to give her something. She said that the share due to the daughters ought to go to Joyce Khetenje Masee. Julieta Shihela Ikoha followed. She said she agreed with the proposal by the protestor.
8.The administrator opened his case on 29th November 2021. He said that the deceased had 2 parcels of land being Isukha/Lukose/1329 and 1438. He said Isukha/Lukose/1329 was sold to Teresa Musine by the deceased to cater for the protestor’s criminal case. He said the sale agreement was dated 20th November 1987. He said he did not allocate a share to the protestor, as his share was Isukha/Lukose/1329. He said Isukha/Lukose/1438 should be given exclusively to him and Hudson Musee. He said he had not proposed distribution to the daughters, as they had indicated that they did not deserve to get a share. On Isukha/Lukose/1329, he said that the agreement did not indicate why the land was being sold. He said that he proposed to give Alexander Mutoka Amukoye a smaller share based on that. He said Joyce Khatenje Masee had gotten married and she lived at her home. He said that she should not get a share.
9.Musee Hudson Amukoye testified next. He stated that the deceased had 5 daughters and 3 sons. He said that all the daughters were married, and it was for that reason that they were not going to be given a share in the estate. He stated that only one daughter did not get married, Joyce Khetenje Masee. He then qualified that by stating that she got married, but her husband died. He asserted that she was not entitled to a share in the estate. He said that Alexander Mutoka Amukoye was allocated 0.5 acre to assist him, as his share was in Isukha/Lukose/1329, which was sold. He said that they had raised money to refund a certain Henry Asicha, saying that he had allegedly bought land from the widow of the deceased, Isukha/Lukose/1329. He said that he was entitled to 3 acres, the administratrix 3 acres and the protestor 1 acre.
10.At the close of the oral hearings, the parties opted to file written submissions. The administrator and the protestor filed written submissions. The administrator cited section 42 of the Law of Succession Act, and In re Estate of Marete Mbui alias M’Marete M’Mbui alias Justus Marete (Deceased)[2017] eKLR (Gikonyo J) and In re Estate of Ruth Wanjiku Karugu (Deceased) [2021] eKLR (T. Matheka J), with respect to previous or inter vivos gifts being brought into the hotchpotch. The protestor submitted that no evidence was tendered to support the contention that Isukha/Lukose/1329 was sold to settle a case he had. He submitted that no proof was tabled that Isukha/Lukose/1329 belonged to the deceased. He also submitted that Hudson Musee Amukoye had sold a portion of the estate to Henry Asicha.
11.Confirmation of grants is provided for under section 71 of Law of Succession Act and Rules 40 and 41 of the Probate and Administration Rules. There is no dispute here on whether the administrator should be confirmed. The contest revolves around who the beneficiaries are, the assets available for distribution, and how the same ought to be distributed. The provisions that should be relevant, in the circumstances, are the proviso to section 71(2) of the Law of Succession Act and Rule 40(4) of the Probate and Administration Rules, which state as follows:
12.The two provisions are about the duty of the administrators and the court, when it comes to confirmation of grant. The administrators have a duty to ascertain the persons who are beneficially entitled to a share in the estate of the deceased. and the shares due to each one of such persons. It was said, in In the Matter of the Estate of Ephrahim Brian Kavai (Deceased) Kakamega HCSC No. 249 of 1992 (Waweru J) (unreported), that the discharge of that duty is so crucial that where the ascertainment has not been done, the court ought not go on to confirm the grant; and that any orders, at confirmation, made where there was no proper ascertainment, would be illegal.
13.So, has the proviso to section 71(2) and Rule 40(4) been complied with? It is not disputed that the deceased had 3 sons. Their names were disclosed in the petition, the Chief’s letter and the confirmation application. They are Patrick Shikami Amukoye, Alexander Mutoka Amukoye and Musee Hudson Amukoye. The Chief’s letter was silent on whether or not the deceased had daughters. At the filing of the petition, only 1 daughter was disclosed, Joyce Khatenje Masee. In the confirmation application, the administrator disclosed the 1 daughter, but the protestor objected, saying that the deceased had more daughters than sons. The names of the daughters were disclosed as Julieta Shihela, Joyce Khatenje Masee, Christine Khaicha, Rose Khasungu and Consolata Amukoye. The said daughters went on to file affidavits in response to the confirmation application, and testified at the oral hearings, where it emerged that the daughters were in fact 6, but 1 had died. The 1 who died was said to be Kweba Amukoya. It was not disclosed whether or not she had any children of her own surviving her. It was not disclosed when she passed on. So, in terms of ascertainment of the survivors of the deceased, I am not satisfied that there is full compliance with the proviso to section 71(2) of the Act.
14.The classification of persons beneficially entitled to a share in the estate of the deceased is not limited to the survivors of the deceased. It is wide enough to encompass any other person with a beneficial interest, such as a creditor of the estate, a purchaser of an asset of the estate not yet transferred to them, a person with a beneficial interest in a trust property held by the deceased, among others. No creditor was disclosed in the Chief’s letter and the petition, nor in the summons for confirmation of grant. There was a disclosure of Henry Asicha, in the protest affidavit, by Patrick Shikami Amukoye, filed herein on 17th November 2014. At the oral hearing, the said Henry Asicha did not testify, however Musee Hudson Amukoye testified that the widow of the deceased had sold a portion of the estate land to him. No documents were produced, yet section 3 of the Law of Contract Act, Cap 23, Laws of Kenya, requires that agreements for disposal of land ought to be evidenced by a memorandum in writing. Clearly, Henry Asicha is not a person beneficially entitled to a share in the estate. He did not transact with the deceased, but with individuals after the deceased died. He is not a creditor of the estate, and he should look up to those who sold the land to him. I shall take it then, that the estate had not debts, and there were no other persons beneficially entitled to a share in the estate, beside the children or survivors of the deceased.
15.On distribution, the administrator has proposed a mode of distribution, under which only the sons of the deceased benefit, and where the daughters are locked out. The protestor would like the mode of distribution widened to include 1 daughter, the one said to be unmarried. However, before I venture to discuss whether those proposals conform with the law, I should determine what is available for distribution in the first place. The Chief’s letter mentions Isukha Lukose/1438 as the asset for distribution. That is replicated in the petition and the summonses for confirmation of grant. A copy of a certificate of official search is on record, dated 30th October 2013, showing that Isukha/Lukose/1438 was registered in the name of the deceased on 8th February 1974, and measures approximately 2.6 hectares. There was mention of Isukha/Lukose/1329, said to have been registered in the name of the deceased, but sold to the raise money to sort out a criminal case that faced the protestor. If such a property existed, and was sold, and some of the survivors benefited from its proceeds of sale, the same qualifies for bringing into the hotchpotch, by virtue of section 42 of the Law of succession Act, which provides as follows:
16.Should Isukha/Lukose/1329 be brought to the hotchpotch, for consideration in the distribution herein? I do not think so. One, no evidence has been placed on record to demonstrate that such a property ever existed, and that, if it existed, it was registered in the name of the deceased. The only document placed on record is a photocopy of a document in Isukha dialect, with a translation, of an alleged lands sale transaction on an unknown date, allegedly between the deceased and a Njelesa Musine Isubiri of Isukha/Lukose/1329. The alleged buyer did not testify. The only way to provide proof of existence of that property is by production of a certificate of official search, and, to prove that it was at one time owned by the deceased, a copy of a green card. None of those were produced, and I, therefore, do not have concrete evidence that the said property existed, or, if it existed, was owned by the deceased at some point. Two, the purported sale was allegedly done to raise money to deal with criminal charges that the protestor faced. Yet, no evidence was adduced, by way of documentary proof, of the charges that the protestor faced, and what became of them, to lay some basis for the argument that land had to be sold for that purpose. A charge sheet or certified copies of typed proceedings would have sufficed. The dates in the charge sheet or the proceedings would have assisted to assess whether they synced with the dates in the purported sale agreement, with respect to when the final payment was made. In view of the above, there can be no basis at all for bringing Isukha/Likose/1329 into the picture, leave alone into the hotchpotch.
17.Is the distribution proposed fair? The deceased died on 30th August 2008, long after the Law of Succession Act had come into force. That meant that his estate falls for distribution strictly in accordance with the Act, and not Luhya customary law, for the same was ousted by section 2(1) of the Act. See Rono vs. Rono & another [2005] 1 KLR (Omolo, O’Kubasu & Waki JJA), In Re the Estate of Harrison Gachoki (Deceased) [2005] eKLR (Okwengu J), In re Estate of Juma Shiro (Deceased) [2016] eKLR (Mwita J), In Re Estate of Gamaliel Otieno Onyiego (Deceased) [2018] eKLR (AJ Makau J, and In re Estate of Mbiyu Koinange (Deceased) [2020] eKLR (Muchelule J). He died intestate and, therefore, his estate is subject to the intestacy provisions in Part V of the Act. He was survived by children but no spouse, and so the estate is for distribution in terms of section 38 of the Act. Sections 2(1) and 38 of the Law of Succession Act provide as follows:
18.Section 38 is significant. It provides for equal distribution of the estate of the deceased amongst the children. The term “children” as used in section 38, and, indeed, generally in the Law of Succession Act, is gender neutral. There is no distinction between male and female children, nor sons and daughters. There is no provision in there which defines “children” as referring exclusively to sons, neither is there any judicial pronouncement to that effect. That would then mean that “children,” in section 38, is used to refer to both sons and daughters, and both are to share the estate equally. The second aspect to it is that there is no reference to marriage or marital status. Whether the children of the deceased are married or not is not a factor. So, the proposal to exclude daughters from benefit, for whatever reason or on whatever criteria, has no foundation in the Law of Succession Act.
19.Section 38 of the Law of Succession Act should read together with Article 27 of the Constitution, which outlaws discrimination against women, and which decrees that both men and women are to be treated equally. African customary law, which the sons of the deceased herein are using, to discriminate against the daughters, does, in fact, allow or permit discrimination, on the notion that daughters are supposed to access their share to property through their husbands. See Kanyi vs. Muthiora [1984] KLR 712 (Kneller, JA, Chesoni and Nyarangi JJA), Wambugi w/o Gatimu vs. Stephen Nyaga Kimani [1992] 2 KAR 292 (Hancox CJ, Masime and Kwach JJA). However, African customary law does not apply here, as it was ousted by section 2(1) of the Law of Succession Act. See Rono vs. Rono & another [2005] 1 KLR (Omolo, O’Kubasu & Waki JJA), In Re the Estate of Harrison Gachoki (Deceased) [2005] eKLR (Okwengu J), In re Estate of Juma Shiro (Deceased) [2016] eKLR (Mwita J), In Re Estate of Gamaliel Otieno Onyiego (Deceased) [2018] eKLR (AJ Makau J, and In re Estate of Mbiyu Koinange (Deceased) [2020] eKLR (Muchelule J). Moreover, Article 27 of the Constitution outlaws such discrimination, and Article 2(4) of the Constitution decrees that any law, including customary law, that is inconsistent with the Constitution is void, and any act or omission in contravention of the Constitution is invalid. Articles 2(4) and 27 of the Constitution state as follows:
20.The constitutional provisions, in Articles 2(4) and 27, are given a boost by international law. Kenya is signatory of the United Nations Convention on the Elimination of all Forms of Discrimination Against Women (CEDAW). CEDAW urges States to take steps to end all forms of discrimination against women. International law is part of the law of Kenya, by virtue of Article 2(5)(6) of the Constitution, which states as follows:“2.Supremacy of this Constitution(1)......(2).......(3)......(4)......(5)The general rules of international law shall form part of the law of Kenya.(6)Any treaty or convention ratified by Kenya shall form part of the law of Kenya under this Constitution.”
21.The proposals to have the estate of the deceased shared out exclusively between the sons is discriminatory against the daughters. They violate section 38 of the Law of Succession Act and Article 27 of the Constitution. See Ejidioh Njiru Mbinga v. Mary Muthoni Mbinga & another [2006] eKLR (Khaminwa J) and Ludiah Chemutai Bett v. Joseph Kiprop Tanui [2017] eKLR (M. Ngugi J). The proposals amount to an act which contravenes Article 27, by discriminating against the daughters on account of their being women. The act is invalid by virtue of Article 2(4) of the Constitution. I shall disregard those proposals, and treat the sons and daughters of the deceased equally, as envisaged in section 38 of the Law of Succession Act and Article 27 of the Constitution. Both the sons and the daughters of the deceased herein are entitled to equal shares in Isukha/Lukose/1438 without any inhibitions.
22.The law, however, does not force persons who are entitled to shares in the estate to take up their entitlements if they do not wish to. There is freedom to decide to take or not to take. That freedom is exercised through a renunciation or waiver or variation of a share or entitlement. That can be done in writing, through a deed or affidavit; or orally, in open court. In this case 4 daughters, being Julieta Shihafu Ikoha, Consolata Amukoya, Rose Khasungu Amukoye and Christine Khaicha Wendo, swore affidavits to renounce their shares. Joyce Khatenje Masee swore an affidavit to take up her entitlement, albeit a lesser one, compared to that of the sons. At the oral hearings, Julieta Shihafu Ikoha, Rose Khasungu Amukoye and Consolata Queen Amukoye reiterated their renunciation. Consolata Queen Amukoye appeared to make a variation in favour of Joyce Khatenje Masee, when she said that her share could be given to Joyce Khatenje Masee. Christine Khaicha Wendo and Joyce Khatenje Masee were keen on taking up their shares. Of course, the position taken by the daughters was informed by the African customary law notion that daughters are not entitled, but I reiterate that customary law does not apply here, as it was ousted by section 2(1) of the Law of Succession Act. However, I shall treat those who have unequivocally renounced their shares as unentitled, and I shall not allocate anything to them in the final analysis. With regard to Joyce Khatenje Masee and Christine Khaicha Wendo, they claim a token of the estate for the same reasons. I do not see why they should get anything less than what the sons get, yet section 38 requires that they take equally.
23.There was allusion to lifetime distribution by the deceased. No evidence was tendered on that. No evidence as to when that happened, where it happened, and who was present. No documentary proof was provided. There is no basis at all to hold that there was any such distribution by the deceased.
24.In view of all that I have said above, these are the final orders:a.That I declare that the deceased was survived by Patrick Shikami Amukoye, Alexander Mutoka Amukoye, Musee Hudson Amukoye, Julieta Shihafu Ikoha, Joyce Khatenje Masee, Christine Khaicha Wendo, Rose Khasungu Amukoye and Consolata Amukoya;b.That I find that the deceased died possessed of Isukha/Lukose/1438;c.That I find that Julieta Shihafu, Ikoha, Rose Khasungu Amukoye and Consolata Queen Amukoye have renounced their shares in Isukha/Lukose/1438;d.That the estate herein, Isukha/Lukose/1438, shall be shared equally between Patrick Shikami Amukoye, Alexander Mutoka Amukoye, Musee Hudson Amukoye, Joyce Khatenje Masee and Christine Khaicha Wendo;e.That the grant herein is confirmed in those terms, and a certificate of confirmation of grant shall issue accordingly;f.That each party shall bear their own costs; andg.That any party, who may be aggrieved by the orders above, is granted leave of 28 days, to move the Court of Appeal, appropriately.
25.It is so ordered.
DELIVERED, DATED AND SIGNED IN OPEN COURT AT KAKAMEGA ON THIS 4TH DAY OF NOVEMBER 2022WM MUSYOKAJUDGEErick Zalo, Court Assistant.Mr. K’Ombwayo, instructed by Mr. M. Kiveu, Advocate for the administrator.Mr. EO Getanda, instructed by KS Ombaye & Company, Advocates for the protestor.
