1.This judgment is an appeal against the ruling of Hon D Orimba, SPM, in Kangundo succession cause No 90 of 2019 delivered on August 18, 2021.
2.The appeal arose from decades of hate and promise, love and frustration. From the protest there appears to be other persons who qualify to be dependants.
3.The matter was concluded between these two protagonists without settling the issue of the disappearance of the third son. There is also no mention of daughters and other dependants. They are mentioned in passing in the protest.
The Appellant’s Submissions
5.The appellant filed submissions on January 21, 2022. They are of the view that land parcel number Kangundo /Matetani/1328 was distributed in 1996. This was 3 years before the deceased’s demise.
6.They also state that the respondent sold land parcel number Kangundo /Matetani/1328 which resulted in a land case, that is kangundo civil suit number 284/2018. There is also settlement of other members of the extended family, that is Nicholas Muthama, Joseph Ndeto, David Mutunga, Nicholas Mutie, Gideon Mwanzia, Priscillar Ndulu, Beth Munywa and Joseph Kyalo.
Respondent’s Written Submissions.
9.They also rely on the English decision of Cain v Moon 1896(1896) 2QB 282. They also deal with post with other aspects not on the proceedings. I will analyze the rest in my judgment.
10.The only issue in this matter is whether, the court got the formula for distribution right.
11.The issue was not who the dependants were or the property of the estate, but the shares. Some parties maintaining the estate was distributed before the demise of the deceased or it is undistributed. The court took an unorthodox step of proceeding on basis of evidence without directions.
12.There were claims by other parties including customary claims. These are not idle claims. It is necessary, in contested estates, that the court takes actual viva voce evidence. The other claims must be settled before a net estate is established.
14.Therefore, it is clear that where parties reside is important. It may not be a gift inter vivos or even an oral will. Courts are not to disturb the decisions by the deceased. The court must also clear the customary claims or claims by other people settled on the land.
16.There was evidence that parties were settled in various parts before the demise of the deceased. The settlement has been for several decades. Therefor disturbing the situation on the ground with redistribution is untenable. It is creating animosity among family members. The effect of such claims is that they ought to have been dealt with specifically and either allowed or dismissed. The court cannot simply ignore prior settlement and other claims and proceed to distribute the gross estate.
17.The court was only entitled to distribute only the net estate. In doing so, the court must have regard to the dependants and others who are settled. Each side has to stay on the land that it was settled on, unless there is evidence to the contrary.
18.Upon settlement, the only parcel that can be hived from the other’s side is a portion to equalize the shares. However, the court shall remember it is equitable distribution that is crucial not mathematical equalization.
20.It is therefore necessary that the matter be heard viva voce and a final judgment given in the matter. The matter that the court disposed of by way of affidavit evidence is too weighty. It is clear that the parties have already settled in specific parcel and built permanent houses.
21.The place of their burial is sacrosanct. In the case of Esther Jepkomoi Sang v Selly Jemtai, the court recognized places where the grave is settlement as to be reconnected with. I therefore find there is merit in the appeal. I set aside judgment of the court and order that the matter be heard de novo. The court hearing the matter shall endeavor not to disturb the settlement as much as possible. The parties must vindicate their clams in a court and a judgment be given.
22.In the judgment whichever way parties are sharing settlement areas and grounds should be taken into consideration. The court must also make a definite finding on other beneficiaries and dependants.
Determinationa.The upshot shot of the foregoing is that I allow the appeal, remit the entire case to the subordinate court, to be heard by a magistrate other than Hon D Orimba.b.In distributing the estate all beneficiaries and dependants be accounted forc.While distributing current settlement and graves should be reckoned with.d.The matter shall in the first instance be referred to court annexed mediation by the first court. In the unlikely that of a disagreement the matter shall be heard by way of viva voce evidence.e.Given that this is a family matter each party to bear its costs.f.I have noted from this in dispute, there is, a possibility that this matter is outside the pecuniary of the jurisdiction of the subordinate court Nevertheless, there is no evidence to that effect. This question be determined at the first instance and if need be a necessary application to transfer to the high court be made.g.This file is closed.