1.The deceased herein died on 15th February 1973, according to the certificate of death on record, serial number 0238036, dated 19th February 2015. There is a letter from the Chief of Elugulu Location, dated 5th March 2015, which indicates that the deceased had 1 wife, namely the late Paskalia Agola, and was survived by 2 sons, Augustine Wesonga Odhiambo and Philip Asimo Odhiambo, and a grandson, Patrick Odhiambo Onyango. He was said to have died possessed of Marachi/Ebukhalalire/344. Representation to the intestate estate was sought by Augustine Wesonga Odhiambo, in his purported capacity as son of the deceased, through a petition filed herein on 6th March 2015. They listed the 3 individuals named in the Chief’s letter, as the sole survivors of the deceased, and Marachi/Ebukhalalire/344 as the asset that the deceased died possessed of. Letters of administration intestate were made to him on 13th August 2015, and a grant was duly issued, dated 16th September 2015.
2.Augustine Wesonga Odhiambo filed an application dated 31st June 2016. He proposed that Marachi/Ebukhalalire/344 be shared out between the 3 identified survivors as follows: Augustine Wesonga Odhiambo – 1.8 hectares, Philip Asimo Odhiambo – 1.2 hectares, and Patrick Odhiambo Onyango 1.2 hectares. Philip Asimo Odhiambo filed a summons, dated 23rd March 2016, seeking that the grant be not confirmed pending agreement on distribution of the estate. He complained that the proposed distribution was not fair. Orders were subsequently made, for a surveyor to visit Marachi/Ebukhalalire/344, to establish the acreage occupied by each son or the survivors of the deceased. The surveyor filed a report on 3rd July 2017, dated 30th June 2017. He identified the “shares” of the beneficiaries, as per the situation on the ground, as follows: Augustine Wesonga Odhiambo – 1.81 hectares, Philip Asimo Odhiambo – 1.23 hectares, and Patrick Odhiambo Onyango 0.98 hectare. He identified the total acreage as 4.02 hectares. Augustine Wesonga Odhiambo subsequently filed a further affidavit, sworn on 19th February 2018, to propose distribution as per the surveyor’s findings.
3.Another summons, dated 26th March 2018, was filed at the instance of Silvester Omondi Asimo, on 10th September 2018, seeking substitution of Philip Asimo Odhiambo as applicant in the application dated 23rd March 2016, with Silvester Omondi Asimo, on grounds that the former had died. It was averred that the deceased had been survived by 3 sons, namely the late James Onyango Odhiambo, Augustine Wesonga Odhiambo and the late Philip Asimo Odhiambo. It was proposed that Marachi/Ebukhalalire/344 be shared equally between the 3, so that each take 1.4 hectares. It was stated that the family of the late James Wesonga Odhiambo was to be represented by Patrick Odhiambo Onyango, and that of the late Philip Asimo Odhiambo by Silvester Omondi Asimo. That would then mean Marachi/Ebukhalalire/344 be shared out equally between Augustine Wesonga Odhiambo, Patrick Odhiambo Onyango and Silvester Omondi Asimo.
4.Silvester Omondi Asimo filed a summons for revocation of grant, dated 8th March 2021, seeking revocation of the grant made to Augustine Wesonga Odhiambo, a fresh grant be made to Augustine Wesonga Odhiambo, Vitalis Omondi and Silvester Omondi Asimo, and a surveyor visit Marachi/Ebukhalalire/344 to demarcate it between the 3 households. His case was that Augustine Wesonga Odhiambo had obtained the grant without the consent of the other survivors of the deceased, and there had been concealment of matter from the court. He proposed appointment of an administrator from each house of the sons of the deceased. There was attached to his affidavit in support, a letter from the Chief of Elugulu Location, dated 2nd March 2021, setting out the members of the 3 households of the sons of the deceased. The family of the late James Onyango Wesonga was said to comprise of Patrick Odhiambo, Vitalis Omondi, the late David Owino (survived by Kevin Owino, Julius Owino and Edwin Owino), Clara Adipo and Eunice Achieng; that of the late Philip Asimo Odhiambo comprised of Sylvester Omondi Asimo, John Onyango Asimo, Julius Oduor Asimo, Jacob Ochieng Asimo, Kennedy Opondo Asimo, Alice Akinyi Asimo and Eunice Akoth Asimo; and Augustus Wesonga Odhiambo was indicated to be alive. Silvester Omondi Asimo filed another affidavit sworn on 22nd November 2021, listing the sons of the deceased, and their grandsons. The revocation application was resolved without a formal hearing, and fresh administrators were appointed, being Vitalis Omondi, Augustine Wesonga and Sylvester Omondi, on 19th October 2021, and a grant of letters of administration intestate was issued to them, dated 1st July 2022.
5.The appointment of administrators paved way for confirmation of grant. 2 applications were filed. One by Augustine Wesonga Odhiambo, dated 9th November 2022; and the other by Silvester Omondi Asimo, dated 6th December 2022. That dated 9th November 2021 seeks distribution of a property described as Marachi/Ebukhala/2015, between Augustine Wesonga Odhiambo, Philip Asimo Odhiambo and Patrick Odhiambo Onyango, as per the surveyor’s report, so that Augustine Wesonga Odhiambo takes 1.81 hectares, Philip Asimo Odhiambo takes 1.23 hectares and Patrick Odhiambo Onyango 0.98 hectare. A further affidavit was filed by Augustine Wesonga Odhiambo, on 3rd April 2023, sworn on 30th March 2023, to attach the surveyor’s report of 30th June 2017. It is averred that the boundaries were planted by the deceased prior to his death. The summons for confirmation of grant, dated 6th December 2022, seeks to distribute a property described as Marachi/Bukhalalire/344 between Sylvester Omondi Asimo (on behalf of John Onyango, Julius Oduor and Jacob Ochieng) and Vitalis Omondi (on behalf of Patrick Odhiambo and Cliconda Atsieno), so that each takes 4 acres. The application dated 6th December 2022 was withdrawn by a notice filed herein, dated 1st February 2023, and was substituted with a summons for confirmation of grant, also dated 1st February 2023. The only new thing in the new application was to propose equal distribution of Marachi/Ebukhalalire/344 between the 3 administrators equally.
6.Directions were initially given on 11th July 2023. The application, dated 6th November 2022, was to be treated as the main application; while that, dated 1st February 2023, was to be treated as the protest to it. The confirmation application was to be disposed of by way of viva voce evidence. Those directions were reversed on 20th September 2023, when the parties proposed to address the issues by way of written submissions instead. Augustine Wesonga Odhiambo submits that the parties had agreed to send a surveyor on the ground, to ascertain acreage in possession and use of each of the 3 sons of the deceased. The court is urged to go by the report filed by the surveyor, as it reflects the situation prevailing on the ground since 1985, when the deceased died. Silvester Omondi Asimo and Patrick Odhiambo Onyango cite section 38 of the Law of Succession Act, Cap 160, Laws of Kenya, which provides for equal distribution of the assets between the children of an intestate. Mary Wangari Kihika vs. John Gichuhi Kinuthia & 2 others  eKLR (Muigai, J) and In re Estate of William Mbogori Kathiama (Deceased)  eKLR (Gikonyo, J) are cited in support.
7.The parties did not address me on the law to apply to the distribution herein. Augustine Wesonga Odhiambo would like me to distribute the estate based on occupancy on the ground, alleging that that was the status quo as at the date the deceased died in 1985, suggesting that the occupancy was based on how the deceased had settled his children on the ground. On their part, Silvester Omondi Asimo and Patrick Odhiambo Onyango, want me to apply section 38 of the Law of Succession Act, presumably on the premise that that is the applicable law. I raise this as the certificate of death on record indicates that the deceased herein died in 1973, long before the Law of Succession Act came into force on 1st July 1981. Under section 2(1) of the Act, the provisions of the Act only govern the estates of persons dying after the Act came into force; while section 2(2) of the Act applies the law and custom that was in operation, prior to the coming into force of the Act. See Rono vs. Rono & another  1 EA 363,  eKLR (Omolo, O’Kubasu & Waki, JJA) and Joseph Achichi Aburili vs. George Ochola Aburili  eKLR (Majanja, J).
8.As the deceased died in 1973, before 1st July 1981, the law to apply to the intestate estate herein are not the intestacy provisions in Part V of the Law of Succession Act, but the law that governed intestate estates in 1973. The deceased, from his name, appears to be African, and the applicable law to intestate estates of Africans then was African customary law. The parties herein have not indicated the particular tribe or community to which the deceased belonged, from which I would then be able to determine the applicable customary law. The name of the deceased appears to suggest that he was Luo, but the land was situated within territory occupied by the Marachi, a Luhya sub-tribe. I cannot tell, whether he belonged to either of the 2, and I cannot tell which customs applied to his estate, as between Luo customary law and Marachi customs. Whatever the case, the applicable law should be either. Unfortunately, none of the parties sought to ascertain the substance of either.
10.As the applicable customary law has not been identified and ascertained, I shall have no option, but apply the provisions of the Law of Succession Act. But before I do so, I must determine whether I should distribute the property based on occupancy on the ground. The argument articulated is that that occupancy is based on the boundaries that the deceased established in 1985. First of all, the certificate of death on record indicates the date of death as 15th February 1973, so I do not know where 1985 is coming from. Secondly, distribution of the estate of a dead person is not based on the boundaries on the ground, but on what the law prescribes. See In Re Arusei  KLR 76  eKLR (Nambuye, J) and Leah Chepkemei Kipyego vs. Mary Chesenge Kipyego  eKLR (F. Ochieng, J). It is permissible, though, for distribution based on occupancy, to be adopted by the court, where there is consent of all the beneficiaries. See Justus Thiora Kiugu & 4 others vs. Joyce Nkatha Kiugu & another  eKLR (Visram, Koome & Otieno-Odek, JJA) and In re Estate of Juma Shiro (Deceased)  eKLR (Mwita, J). If the intestate died prior to the commencement of the Law of Succession Act, distribution will follow the substance of the applicable customary law; and where he died after the commencement, then the provisions of the Law of Succession Act, on intestacy will apply, subject to any consents or agreements by the survivors or beneficiaries. See Justus Thiora Kiugu & 4 others vs. Joyce Nkatha Kiugu & another  eKLR (Visram, Koome & Otieno-Odek, JJA) and In re Estate of Juma Shiro (Deceased)  eKLR (Mwita, J). There is no proof of the applicable customary law here. There is no agreement on distribution. The parties decided to take the easy way out, a shortcut, written submissions, so no evidence was led on how those boundaries came about, yet the surveyor’s report makes no reference to any boundaries. Thirdly, reference to boundaries suggests inter vivos distribution. No evidence was led on any such inter vivos distributions. In any case, such lifetime distributions would only be reckoned where the deceased took some steps towards actualizing the lifetime distribution. The land herein is registered. A lifetime distribution would have only been feasible where the same was subdivided into 3 and transferred to the names of the 3 sons. Such would require that consent of the relevant land control board, under the Land Control Act, Cap 302, Laws of Kenya, be obtained for subdivision and transfer of the land. There is no evidence that the deceased took any step in that direction, yet the law is that the court could infer an intention to transfer such land, where some step was taken, say obtaining consents of the land control board and getting mutations done, but the deceased dies before completing the exercise. See In re Estate of Gedion Manthi Nzioka (Deceased)  eKLR (Nyamweya, J) and Lucia Karimi Mwamba vs. Chomba Mwamba  eKLR (Gitari, J). I can only conclude that there was no inter vivos distribution, and there is no evidence that the occupancy on the ground, as per the surveyor’s report, had anything to do with the deceased.
11.There is no evidence that the deceased was survived by a spouse, and so the property is for distribution amongst the children. Only 3 children were disclosed, all sons. There is no mention of daughters. I note that the deceased died in 1973, and customary law applied, which did not reckon daughters in succession, as their share was in the households of their husbands. See Kanyi vs. Muthiora  KLR 712 (Kneller JA, Chesoni & Nyarangi, Ag JJA) and Wambugi w/o Gatimu vs. Stephen Nyaga Kimani (1992) 2 KAR 292 (Hancox, CJ, Masime & Kwach, JJA). I am alive to Article 27 of the Constitution, which outlaws discrimination based on gender; and Article 2(4), which renders any law, including customary law, and any act, which contravenes the Constitution, invalid. See In re Estate of Evan Muthui s/o Nyamu  eKLR (Ngaah, J) and Wanjiru & 4 others vs. Kimani & 3 others  KECA 362 (KLR) (W Karanja, HA Omondi & Laibuta, JJA). I risk labouring in vain, if I go ahead and distribute this estate before there is disclosure of the daughters of the deceased, and their involvement in the matter.
12.The 2 provisions state as follows:
13.Where there are no spouses, the applicable law would be sections 35(5) and 38 of the Law of Succession Act, both of which provide for equal distribution of the property amongst the children. Section 41 is also relevant, it allows the children of any dead child of the deceased, to step into the shoes of their dead parent, and to take the share that such parent would have taken, had he or she been alive. These provisions state:
14.Before I make final orders in the matter, let the parties bring themselves within compliance with Articles 2(4) and 27 of the Constitution, by disclosing whether the deceased had any female children, and the names of such female children. The matter shall be mentioned thereafter, for further directions.