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JudgmentEZEKIEL LUKALO ALUDA8 min read

EZEKIEL LUKALO ALUDA

High Court at Kakamega High Court · · P. J. Otieno

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KAKAMEGA

SUCCESSION CAUSE NO. 408 OF 1998

IN THE MATTER OF THE ESTATE OF EZEKIEL LUKALO ALUDA (DECEASED)

BETWEEN

  1. BEATRICE LUKALO
  2. MARGARET OSOLIKA…...…...……………………..…….……..ADMINISTRATORS

VERSUS

TOM LUKALO……………….…....…….……………………….…..…….…OBJECTOR

RULING

  1. According to the oral evidence of Mr. Tom Lukalo, Ezekiel Lukalo Aluda (“deceased”) married three times and sired a total of fifteen children including himself. It was his evidence that at the time the deceased died, his estate comprised of the following properties; North Maragoli/Kegondi/471, North Maragoli/Kisatiru/1394, Trans Nzoia/Kipsoen/232, North Maragoli/Kisatiru/1395, North Maragoli/Kisaturi/1168, North Maragoli/Kitasuri/1013, North Maragoli/Kitasuri/1014, Nandi/Denja/Onamu/unsurveyed and Motor Vehicle Peugeot 404 KTK 575.
  2. Several witnesses testified on the family and wealth of the deceased but at this juncture, I have decided to only give a glimpse of his evidence since it appeared to give an extensive understanding of the life of the deceased and his properties and also for the reason that Musyoka J who had the immediate conduct of this matter before it fell into my hands addressed the testimonies of all the witnesses.
  3. Following an examination of the oral testimonies, it was the finding of Musyoka J vide a judgment dated 27th May, 2022 that the deceased was survived by one wife, who has since died, and a total of thirteen children. Musyoka J further established that an analysis of the documents tendered in relation to the deceased’s estate showed that the only properties available for distribution were Trans Nzoia/Kipsoen/1048 and North Maragoli/Kegondi/471. The judge then proceeded to direct as follows;

“I have identified thirteen survivors of the deceased hereabove, who ought to benefit from shares in the assets that I have identified hereabove as available for distribution. However, I feel it would be premature to distribute the said two assets between the said beneficiaries, before the administratrixes address the issues that I have raised above, such as perfecting titles of some of the assets, if at all the estate is entitled to them. Secondly, it would be prudent to give Tom Lukalo, and his supporters who may wish to lead some evidence to establish whether North/Maragoli/1168 and 1395, and Nairobi/Bock/75/295, were inter vivos gifts, for if they were, they ought to be brought to the hotch potch, not for distribution, but for the application of section 42 of the Law of Succession Act. Similarly, the administratrixes may also wish to lead evidence to show that Tom, Arthur and Douglas Lukalo also benefited from inter vivos gifts. They also need to explain in greater detail the circumstances under which transfers were done to Godfrey Khalitaba Lukorito, Milton Ngandu Mundia, Rotich Cheruiyot Mutuol and Evans Alemba out of Trans Nzoia/Kipsoen /232, and who benefited from the sales, so that the court can assess whether to treat the distribution of the proceeds from the said sales as gifts inter vivos or not. The bringing of such gifts to the hotch potch could have a critical impact to the distribution in the end. It is important that the parties address those issues before final orders on distribution are made.”

  1. From the record, I can only see the affidavit of Mr. Tom Lukalo sworn on 27th June, 2022 pursuant to the directions of Musyoka J. The administratrixes on the other hand opted to file an application to stay the directions which application was subsequently dismissed.
  2. Mr. Tom Lukalo has annexed a number of green cards in his affidavit to help the court understand the events leading to the present registrations and what property forms part of the free estate of the deceased. The first green card is in relation to Parcel No. North Maragoli/Kisaturi/1394 which was registered in the name of the deceased on 26/6/1996. The land was thereafter transferred to the administrators in their capacities as representatives of the estate of the deceased on 22/11/1999 and on the same date the land was again transferred to Josephine Kaveza Aluda (wife to the deceased). Worth noting is that the grant for the administration of the estate of the deceased was issued to the administrators on 29/10/1996 and confirmed on 29/10/1999 allocating the parcel to Josephine Kaveza Aluda to mean that the administrators were well within their rights in transmitting the parcel.  However, the court of appeal sitting at Kisumu in a judgment delivered on 11/7/2014 set aside the certificate of confirmation of grant issued to the administrators and remitted the file back to this court for rehearing, the effect of which would be that the status quo of the parcel before the confirmation of the grant stands. That said, I find that Parcel No. North Maragoli/Kisaturi/1394 forms part of the estate of the deceased.
  3. The second parcel is LR No. North Maragoli/Kisaturi/1395 which the green card shows that as at 26/6/1992 the parcel was registered in the name of the deceased and on that same date, the deceased transferred the land as a gift to Josephine Kaveza Aluda. The deceased died on 2/3/1996 and since the parcel was gifted and transferred to Josephine Aluda by the deceased prior to his death, it is considered a gift inter vivos and does not form part of the estate of the deceased. Mr. Tom Lukalo in his affidavit contends that this land should therefore be considered part of the estate allocated to the 2nd house. Musyoka J in his judgment established that since the 1st and 3rd wife of the deceased had remarried during the life of the deceased, the deceased died while married to only the 2nd wife and thus he not die a polygamous man.
  4. It is a proviso of section 42 of the Law of Succession Act that the benefits and/or advances made by a deceased person to his beneficiaries, a child, a grandchild or a house, are to be considered in distribution.   Having established that the deceased did not die a polygamous man and that he gifted to his wife the land, it therefore means that the land now forms part of the estate of Josephine Kaveza Aluda and not the deceased. Same position applies to property known as North Maragoli/Kisatiru/1168 which the deceased transferred to Josephine Kaveza Aluda on 26/6/1992 during his lifetime. That said, it is my finding that LR No. North Maragoli/Kisaturi/1395 and North Maragoli/Kisatiru/1168 do not form part of the estate of the deceased.
  5. The next parcel is LR No. North Maragoli/Kisatiru/204 which according to the green card was transferred as a gift by the deceased on 22/5/1995 to Joyce Kageha Mugalitsi and Charles Kisanya Lukalo who Mr. Tom Lukalo describe as a daughter in law and son of the deceased respectively. The transfer took effect during the lifetime of the deceased and by virtue of section 42 of the Law of Succession Act, this parcel will be considered in awarding Charles Kisanya Lukalo his share of the deceased’s estate.
  6. For parcel of land known as Trans Nzoia/Kipsogen/1048, the green card shows that it was registered in the name of the administrators on 22/4/2009. At paragraph 7 of his affidavit, Mr. Tom Lukalo avers that the parcel was a creation of the sub division of Trans Nzoia/Kipsoen/232. I have looked at the green cards that Mr. Tom Lukalo annexed to his affidavit and they show that on diverse dates after the grant had been confirmed and before the confirmed grant was set aside by the court of appeal, the administrators caused the subdivision of Trans Nzoia/Kipsoen/232 into 810 and 811, 810 was then subdivided into 825, 826 and 827 while 825 was subdivided into 1048, 1049 and 1050. The parcels were subsequently transferred to Evans Alemba, Rotich Cheruiyot Mutuol, Milton Ngandu Mundia, Godfrey Khalitara Lukorito, M.M. Osolika and Hudson Mbayi Keya.
  7. It is of note that while the confirmed grant that was subsequently set aside by the court of appeal had directed that Trans Nzoia/Kipsoen/232 be shared between the administrators, Josephine Kaveza Aluda, Fibian Kavulani Lukalo, Humprey Zavani Aluda and Anthony Lukalo Aluda, there were transfers of the resultant titles from the subdivisions to the named third parties by the administrators. That was done during the tenure and subsistence of a validly confirmed grant by the administrators in their capacity as such administrators. The court finds that scenario to be what the act seeks to protect under section 93 of the Act. The court notes that the said third parties have not been heard on how they acquired the titles. To this court that the transfer was by the administrator is a sufficient protection against interference with the transfer.  That property and its subdivisions are not available for distribution at this juncture.
  8. For property known as North Maragoli/Kisatiru/782, Mr. Tom Lukala has annexed a certificate of confirmation of grant dated 25/4/2015 which shows that the property formed part of the estate of the Late Joseph Aluda Kisanya and the deceased herein was not listed as an heir in the estate of Joseph Aluda Kisanya. It is equally not subject to distribution in this cause.
  9. In relation to properties known as North Maragoli/Kitasuri/1013 and North Maragoli/Kitasuri/1014, Mr. Tom Lukalo avers that because there is no evidence that the purchaser of the two properties by the name of Prof. Francis Davis Imbuga completed the purchase price, the properties ought to form part of the estate of the deceased.
  10. That position is contested by one Jethro E.A Gwengu in an affidavit sworn on 13/11/2015 in which the deponent states that he knew both the deceased and Prof. Francis Davis Imbuga who is now deceased. He asserts having been present and witnessed the execution of the sale agreement. He asserted that the late Prof. Francis Davis Imbuga took possession of the two parcels following the sale and that he still has possession. Only the deceased, his wife and Prof. Francis Davis Imbuga are in a position to confirm if the purchase price was completed. Since Prof. Francis Davis Imbuga has been in possession of the two parcels since 10/10/1993, without any steps being taken to deprive him of the possession, even by the deceased and his wife during their lives, court hesitates at disturbing that status quo. The court find the property not available for distribution in this cause. More importantly, it would be unjust and contrary to the rules of natural justice to challenge the efficacy of the sale without hearing the purchaser.
  11. In the end. The court finds that the free estate of the deceased to comprise of North Maragoli/Kegondi/471 measuring 1.2HA(2.9acres) and North Maragoli/Kisaturi/1394 measuring 0.04HA (0.09acres). the court further finds that the heirs to the estate entitled to share in the distribution are;
  12. Tom Lukalo
  13. Arthur Lukalo
  14. Douglas Lukalo
  15. Beatrice Lukalo
  16. Charles Lukalo
  17. Margaret Osolika
  18. Fabian Lukalo
  19. Kennedy Lukalo
  20. Edward Lukalo (Deceased with no survivor)
  21. Anthony Lukalo
  22. Humprey LUkalo
  23. Jackline Lukalo (Deceased with no survivor)
  24. Harriet Lukalo
  25. Beatrice Kavulani (Deceased but survived by a son)
  26. Beverlyne Gonya Mugutu
  27. For the reasons and conclusion set out above, the court makes an order and directs that the estate of the deceased be distributed as follows;
  28. North Maragoli/Kegondi/471 measuring 1.2HA(2.9acres) to be equally shared between Tom Lukalo, Arthur Lukalo and Douglas Lukalo equally with each getting 0.96 acres.
  29. North Maragoli/Kisaturi/1394 measuring 0.04HA (0.09acres) to be given to Charles Lukalo (2.7) in whole.
  30. Being a family matter, I make no order as to costs.

Dated, signed and delivered Virtually this 14th day of February, 2024

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