[1] This is a long-standing succession dispute. It was initially filed before the Chief Magistrate’s Court at Homa Bay vide Succession Cause No. 216 of 2018. The Petition dated 11th July 2018 prayed for Grant of Letters of Administration Intestate. The cause was filed by Michael Erick Omondi Otieno and Tony Nick Otieno in respect of the estate of their father Stanslaus Dalmas Otieno Anyango, alias Otieno Anyango, in their capacity as sons of the deceased. The Grant was thereafter issued to them on the 15th February 2019.
[2] Subsequently, an Objection to the issuance of the Grant was filed by one of the beneficiaries of the estate, Samuel Ochieng Otieno, contending that he is one of the sons of the deceased and that he was left out of the list of beneficiaries. The objector contended that the two applicants were dishonest in so far as they failed to disclose the names of all the beneficiaries of the deceased. In his Supporting Affidavit, the objector averred that the deceased was a polygamous man with 3 wives. He proceeded to list all the beneficiaries of the deceased per house at paragraphs 4, 5, 6 and 7 of the said affidavit.
[3] The objector also deposed that the two petitioners, in furtherance of their own personal interest, had intermeddled with the estate of the deceased before confirmation of Grant. He therefore urged the lower court to find that the two petitioners were not fit to manage the estate of the deceases as exhibited by their dishonest conduct. The Objection was supported by the 1st petitioner, Michael Erick Omondi Otieno, vide his affidavit sworn on 3rd September 2019. He averred that his co-administrator, Tony Nick Otieno, had perpetrated acts of fraud with reference to the estate of their deceased father by forging documents for some parcels of land comprising the estate. He also conceded that his co-administrator had indeed intermeddled with the estate before confirmation of Grant. He therefore proposed that the Grant be confirmed in his name and in the name of the objector.
[4] In his Replying Affidavit sworn on 3rd September 2019, the respondent, Tony Nick Otieno, conceded that they had left out some of the beneficiaries in their Petition. He also conceded that the deceased was a polygamist and that he had 3 wives. He set out their respective names as well as the names of their children. It is noteworthy that the objector is a sibling to the two petitioners, Michael Erick Omondi Otieno and Tony Nick Otieno, as children of the deceased with his first wife, Florence Akinyi Otieno (deceased). Therefore, the respondent proposed that representatives of the 2nd and 3rd houses be included as administrators. He prayed that a Grant be issued in the names of the following:
[a] Tony Nick Otieno and Samwel Ochieng Otieno to represent the 1st house;
[b] Gaudencia Adhiambo Otieno to represent the 2nd house; and
[c] Shinaz Atieno Otieno to represent the 3rd house.
[5] The parties thereupon entered into a Consent upon which the lower court recorded the following orders:
[a] Inhibition Order inhibiting the sale, alienation, transfer or disposal of land parcel Nos. Kanyada/ Kanyango/Kalanya/854, 856, 741, 715, 705 and Plot No. 11/556 situated within Eldoret Municipality be and is hereby issued.
[b] Rents due and payable by various tenants occupying property on Plot No. 11/556 Eldoret Municipality be collected by the administrators and be deposited in the Court’s Deposit Account with KCB Bank by 10th October 2019 and thereafter on each succeeding month for presentation and/or use by the beneficiaries as the Court shall determine upon application by any of the beneficiaries if need be.
[c] The fence erected around land parcel Nos. Kanyada/Kanyango/Kalanya/854 and 856 be removed by the 2nd administrator, Tony Nick Otieno, within 90 days from today provided that in so removing it, he shall not be required to remove the portion surrounding his home situated on Parcel No. 854.
[d] The beneficiaries be and are hereby allowed to agree amongst themselves on the mode of distribution of land parcels No. Kanyada/Kanyango/Kalanya/1854, 1856, 1741, 1715, 1705 to the extent to which the estate is involved/shares it holds thereto;
[e] The distribution of Plot No. 11/556 Eldoret Municipality be put in abeyance pending further orders of the court.
[f] For the avoidance of doubt, the names of the beneficiaries contained in the Chief’s letter dated 27th August 2019 shall be used for purposes of distribution of the deceased’s estate.
[g] Mention on 20th November 2019 for way forward.
[6] The respondent, Tony Nick Otieno, thereafter resiled from the consent, contending that he was never involved in the negotiations prior to the recording of the orders, particularly the order for the removal of the perimeter fence around parcel Nos. Kanyada/Kanyango/Kalanya/1854 and 1856. Consequently, one of the beneficiaries, Dorothy Awuor Otieno, filed an application dated 28th November 2019 seeking the setting aside of the Consent Order.
[7] The stalemate precipitated the filing of the Summons for Revocation or Annulment of Grant by 11 of the beneficiaries, namely, Allan Samuel Otieno, Michael Erick Omondi Otieno, Jemima Otieno, Shenaz Atieno, Agatha L. Akeyo, Gaudencia Otieno, Caroline Awuor, Judith Aoko, Agnes Atieno, Nabilla Achieng and Jacqueline Akoth. They named Tony Nick Otieno as the sole respondent to the application for revocation of Grant dated 21st January 2020. They accused the respondent of being in contempt of the Consent Order of 4th September 2019. The respondent opposed the application vide his Replying Affidavit sworn on 18th February 2020 reiterating his stance that he was coerced into signing the Consent. He pointed out that the application for setting aside the Consent was still outstanding.
[8] The two pending applications were compromised by the parties and another Consent Order recorded on 4th August 2020 in the following terms:
[a] The Grant of Letters of Administration issued to Michael Erick Omondi Otieno and Tony Nick Otieno on 15th February 2019 be and is hereby revoked.
[b] A fresh Grant of Letters of Administration do issue in the names of Allan Samuel Otieno, Tony Nick Otieno, Gaudencia Otieno, Shenaz Atieno Otieno who shall jointly co-administer the deceased’s estate.
[c] The joint administrators to sit and agree on the mode of distribution of the estate of the deceased incorporating all the beneficiaries failing which any of the administrators be at liberty to apply at the expiry of 60 days from the date hereof.
[d] The two applications dated 28th November 2019 and 21st January 2020 be and are hereby dispensed with. Costs in the cause.
[e] Mention on 22nd October 2020 for follow up and further directions.
[9] A Grant of Letters of Administration Intestate was accordingly issued on 4th August 2020 in the names of the four administrators aforementioned at Paragraph 9[b] of this ruling. Orders were subsequently given for the tenants residing on Property No. LR 11/556 Eldoret Municipality to deposit their rents into a bank account opened at KCB Bank by the 4 administrators.
[10] The record of the lower court further shows that the wrangles did not cease in spite of the Consent Orders and directions of the court. The matter moved to the High Court where another application for Revocation and Rectification of Grant dated 20th April 2022 was filed on 22nd April 2022 by 11 of the beneficiaries, namely, Allan Samuel Otieno, Shenaz Atieno, Gaudencia Otieno, Jemima Otieno, Agatha L. Akeyo, Caroline Awuor, Judith Aoko, Agnes Atieno, Nabilla Achieng, Jacqueline Akoth and Michael Erick Omondi Atieno.
[11] They filed the application against Tony Nick Otieno, Dorothy Awuor Otieno, Linda Bernie Otieno, Molly Awino Otieno and Beryl Achieng Otieno, seeking orders, inter alia, that Tony Nick Otieno (the alleged 1st contemnor) be cited for contempt of court. Their application was premised on the ground that the alleged 1st contemnor had blatantly disregarded the orders issued by the court on 25th March 2021 and 14th July 2021 in connection with the rental income from the Eldoret Property. They also prayed for the removal of the alleged 1st contemnor, Tony Nick Otieno as an administrator.
[12] The application was opposed by the respondents thereto; and by the time it was determined on 14th November 2022, an application for Confirmation of Grant had already been filed by the respondent, Tony Nick Otieno. In addition, an Affidavit of Protest sworn by Allan Samuel Otieno on 1st December 2020 had also been filed on 14th June 2022. He averred that, although they were eager to have the Grant herein confirmed as soon as practically possible, they were strongly opposed to the Mode of Distribution as proposed by Tony Nick Otieno. They contended that the affidavit filed by Tony Nick Otieno in support of his application for Confirmation of Grant is full of falsehoods and non-disclosure and is therefore misleading in terms of the true value and extent of the estate of the deceased.
[13] At paragraphs 7, 8, 9, 10 and 11, Allan Samuel Otieno deposed that there were properties that were transferred to some of the deceased’s wives before confirmation of Grant, and that their children thereafter inherited the same upon the demise of their respective mothers without the knowledge or approval of the other beneficiaries. He therefore prayed that those irregular transfers be reversed and the assets reverted to the estate for distribution amongst all the beneficiaries. In the estimation of Allan Samuel Otieno, the estate of the deceased is valued at Kshs. 42,000,000/=. He therefore averred that it is in the interest of justice that the proposed Mode of Distribution by the respondent, Tony Nick Otieno, be disregarded and that the assets, as listed by him, and the proposed Mode of Distribution set out at paragraph 13 of his Affidavit of Protest be adopted by the Court.
[14] In the light of the foregoing, in its ruling dated 14th November 2022 in respect of the application dated 20th April 2022, the Court (Hon. Kiarie, J.) held:
“4. This succession cause has had a very unhealthy existence. Since its filing in 2018 very little has been achieved. This court will not condone unethical dealings in the estate from any of the parties.
5. The other administrators have accused the 1st respondent of refusing to cooperate but they have not demonstrated the same and neither have they showed what they have done in spite of the alleged frustrations.
6. I therefore order that the protest to the proposed application for distribution be heard within 60 days of this ruling or within a timeframe to be agreed upon by the parties and the court. Thereafter, the administrators must render account as envisaged under section 83(g) of the Law of Succession Act. For avoidance of doubts, where a specific administrator has been assigned a specific task, he/she must account for the same.
7. From the foregoing, none of the orders sought will be granted.
8. Costs be in the cause.”
[15] Another Affidavit of Protest was filed by the 4th Administrator, Shenaz Atieno Otieno, sworn on 20th September 2024. In respect of the property known as Eldoret Municipality/Block 11//556, she deposed that her late mother, Pamela Adhiambo Otieno, was the sole caretaker; and that her late mother also financed and supervised the construction of an extra rental unit on the property which she was renting out for an income prior to her demise. The 4th administrator further averred that, after the demise of her mother in 1999, the 1st widow of the deceased, Florence Akinyi Otieno and her children, the 1st Administrator, Allan Samuel Otieno, the 2nd administrator, Tony Nick Otieno and Michael Erick Otieno, kicked her and her siblings from the property where they had been living with their mother.
[16] The 4th Administrator further contended that, although Property No. Eldoret Municipality/Block 9/919 comprises part of the estate of the deceased, it was unlawfully transferred to the 1st widow of the deceased, Florence Akinyi Otieno; and that after her demise in 2000, the property was handed over to the beneficiaries in the 1st house without disclosure to the Court or consent of the other beneficiaries. She also complained that the respondent, Tony Nick Otieno, has been collecting rent from all the rental units erected on Title No. Eldoret Municipality/Block 11/556 since 1st December 2013, including the rental unit constructed by her mother, to the exclusion of all the other beneficiaries. She pointed out that Tony Nick Otieno has continued on this course in spite of court orders requiring tenants to pay rent through a bank account opened by the administrators with KCB Bank.
[17] Accordingly, at paragraph 16 of her Affidavit of Protest, the 4th Administrator averred that Tony Nick Otieno has, despite several written and oral demands by the beneficiaries, failed, refused and/or neglected to heed or comply with the said Court Order, with the intention of frustrating the beneficiaries and unlawfully enriching himself from the proceeds of the estate before its distribution. She therefore proposed that:
[a] The family of the 1st wife, the late Florence Akinyi Otieno be compelled by a Court Order to transfer back LR No. Eldoret Municipality/Block 9/919 to the estate of the deceased for purposes of distribution.
[b] In the alternative to [a] above, the said property be deemed to form part of the estate and be distributed to the beneficiaries comprising the family of the 1st wife and the said distribution be reckoned in computation of the respective final shares of the said beneficiaries.
[c] Allan Samuel Otieno be compelled by an order of the Court to render a comprehensive and detailed account of all rent proceeds collected from Title No. Eldoret Municipality/Block 11/556 from the year 2000 to 30th November 2013.
[d] Tony Nick Otieno be compelled by an order of the Court to render a comprehensive and detailed account of all rent proceeds from the property Title No. Eldoret Municipality/Block 11/556 from 1st December 2013 to date.
[e] In default of [c] and [d] above, the estimated rent collected by Allan Samuel Otieno and Tony Nick Otieno from the aid property be computed and reckoned as their respective shares during the distribution of the estate.
[f] Tony Nick Otieno be ordered to provide a comprehensive account of monies (if any) spent on maintenance of the property from 1st December 2013 to date.
[g] The other assets of the estate, which have already been valued, be sold in the open market and the proceeds distributed equally among all the children of the deceased (18 beneficiaries) taking into account [a], [b], [c], [d], [e] and [f] above.
[h] Any beneficiary who intends to acquire property from the estate will have to purchase it from the estate at the market value in tandem with the Valuation Reports filed in court.
[i] In the event that any parcel of land from the deceased’s estate is designated as ancestral land, such property should be registered in the names of the Administrators to hold in trust for all beneficiaries.
[18] A third Affidavit of Protest was filed by Alamin Abdul Virani on 3rd December 2024. He averred that he is the 2nd born child of Pamela Adhiambo Otieno Okwaro who was the 3rd wife of the deceased Stanslaus Dalmas Otieno Anyango. He stated that he was born on 29th November 1981 and was therefore 10 years old when their father died. He added that his late mother was a spouse and dependant of the deceased and was being maintained by him prior to his death; and that his mother passed on in the year 1999 when he was 17 years old.
[19] Accordingly, the 3rd protestor was aggrieved that, even though he was a dependant of the deceased, Stanslaus Dalmas Otieno Anyango, his name had been omitted from this Succession Cause. He added that he was only included in the Distribution List by the Public Trustee after he lodged a complaint. He annexed the letter from the Public Trustee dated 4th September 2007 as well as a letter from the District Commissioner, Rachuonyo, dated 12th September 2007 in support of his assertion that it is in the interest of fairness and justice that he be included in this matter as a dependant.
[20] The application for confirmation of Grant and protests thereto were canvassed by way of written submissions, pursuant to the directions given herein on 31st October 2024. The 2nd and 3rd Administrators, Tony Nick Otieno and Gaudencia Adhiambo Otieno, together with Dorothy Awuor Otieno, Linda Bernie Otieno, Molly Awino Otieno, Beryl Achieng Otieno, Caroline Awuor, Michael Erick Omondi Otieno and Agatha Akeyo relied on the written submissions dated 25th February 2025 drawn and filed on their behalf by M/s Nancy Nyarige & Company Advocates. They proposed the following 4 issues for determination:
[a] Whether the deceased died intestate;
[b] What are the Assets and Liabilities left behind by the deceased?
[c] Who are the beneficiaries to the estate of the deceased?
[d] How then should the estate of the deceased be distributed?
[21] The 2nd administrator and the beneficiaries on his side submitted that there is consensus that the deceased died intestate and that the assets comprising his estate are:
[a] Land Parcel No. Kanyada/Kanyango/Kalanya/1706 measuring 0.13 hectares;
[b] Land Parcel No. Kanyada/Kanyango/Kalanya/1715 measuring 0.22 hectares;
[c] Land Parcel No. Kanyada/Kanyango/Kalanya/1741 measuring 0.88 hectares;
[d] Land Parcel No. Kanyada/Kanyango/Kalanya/1854 measuring 1.32 hectares;
[e] Land Parcel No. Kanyada/Kanyango/Kalanya/1856 measuring 0.77 hectares;
[f] LR No. 11/566 Eldoret Municipality.
[22] They urged the Court to place reliance on the 2nd Letter of the Chief dated 27th August 2019 as to the List of Beneficiaries per house. In respect of the 3rd house of Pamela Adhiambo Otieno, the 2nd administrator listed Shenaz Atieno Otieno and Nabilla Dotia Otieno only. He and the beneficiaries supporting his application therefore posited that, other than the ancestral lands, the assets be sold and shared equally among the beneficiaries. They relied on Sections 38 and 71 of the Law of Succession Act as well as Rule 40(4) of the Probate and Administration Rules and the following authorities:
[a] In re Estate of Francis Andachila Luta (Deceased) (Succession Cause 875 of 2012 [2022] KEHC 16900 (KLR) (23 December 2022) (Judgment); and
[b] In re Estate of M’Ramare Nkunga (Deceased) [2018] eKLR.
[23] The 1st administrator who is also the 1st protestor, filed his written submissions dated 3rd February 2025. He had the support of the other beneficiaries, namely: Jemima Otieno, Molly Awino Otieno, Judith Aoko, Agnes Atieno, Nabilla Achieng, Jacqueline Akoth, Beryl Achieng Otieno and Baraka Otieno. They proposed the following issues for determination:
[a] Whether the 3rd protestor, Alamin Abdul Virani, is or can be considered a dependant of the deceased;
[b] Whether the Affidavit of Protest filed by the 3rd protestor should be struck out and expunged from the record with costs;
[c] Who shall bear the costs.
[24] The 1st Protestor and the beneficiaries on his side submitted that the 3rd protestor was not a dependant of the deceased as he was never raised by the deceased before his demise. They contended that the 3rd protestor was never sired by the deceased nor did the deceased know of his existence. They made reference to the degree of consanguinity and affinity as provided for in Section 39(1) of the Law of Succession Act and the exposition in that regard in In re Estate of the late M’thigai Muchangi (Deceased) [2020] eKLR as well as the Chart drawn in Immaculate Wangari Munyaga v Zachary Waweru Ireri [2016] eKLR to support their submission that the 3rd protestor does not fall in any of the categories of consanguinity or affinity set out in Section 39(1). They further submitted that he was not a dependant for purposes of Section 29 of the Law of Succession Act; and therefore it is in the best interest of the beneficiaries herein that the Affidavit of Protest filed by the 3rd protestor be struck out or expunged from the record and that the costs be borne by the 3rd protestor.
[25] On behalf of the 4th Administrator, Shenaz Atieno Otieno, written submissions dated 11th March 2025 were filed herein by M/s Macharia Nderitu & Co. Advocates. She relied on her Affidavit of Protest sworn on 29th September 2024 and her Further Affidavit sworn on 16th October 2024. I note that the 4th administrator was referred to in those submissions as the 3rd administrator. For the purposes of this ruling I will henceforth refer to her as the 2nd protestor to avoid confusion. She proposed the following issues for determination:
[a] Whether the 2nd protestor is a beneficiary of the estate of the deceased as a daughter of the deceased and the late Pamela Adhiambo Otieno.
[b] What assets comprise the estate of the deceased?
[c] Whether the 1st and 2nd administrators have accounted for rental proceeds collected from the estate of the deceased since 2000;
[d] What is the appropriate mode of distribution?
[26] It was the submission of the 2nd protestor that the attempt by the 1st administrator to disown her at the tail end of these proceedings was only motivated by spite or ill will after she sought, in her Affidavit of Protest, that the 1st administrator be required to account for rental income that accrued to the estate prior to 2013. She submitted that all the beneficiaries have all along recognized her as one of the beneficiaries of the estate of the deceased. She relied on Section 3(2) of the Law of Succession Act in which a child is defined to include a child conceived but not yet born, whether or not born out of wedlock.
[27] The 2nd protestor relied on Gatirau Peter Munya v Dickson Mwenda Kithinji & 3 others [2014] eKLR for an exposition of Section 107 of the Evidence Act, Chapter 80 of the Laws of Kenya and the principle that he who alleges must prove. She urged the Court to find that the allegations by the 1st administrator as to her paternity were not proved and therefore are only intended to shield him from accountability.
[28] In respect of the assets comprising the estate, the 2nd protestor submitted that the 1st administrator deliberately omitted Property No. Eldoret Municipality/Block 9/919 which was unlawfully transferred to the 1st widow, Florence Akinyi Otieno, and was thereafter transmitted to the children of the 1st house without reference to the other beneficiaries. She added that the property was subsequently sold to a 3rd party to undermine the outcome of this Cause. The 2nd protestor relied on Benson Mutuma Muriungi v C.E.O. Kenya Police Sacco & another [2016] KEHC 7145 (KLR) for a discussion of what constitutes intermeddling with the estate of a deceased person.
[29] It was also the submission of the 2nd protestor that the 1st and 2nd administrators are yet to account for the rental proceeds collected from the estate assets since 2000. She also pointed out that although the lower court ordered that the rental proceeds be deposited in a bank account opened by the administrators, the 2nd administrator defied that order and continues to receive rental income from LR No. Eldoret Municipality/Block 11/556 and convert the same to his own use. She urged the Court to compute the rental income and deduct the same from the shares of the 1st and 2nd administrators.
[30] With regard to the appropriate mode of distribution, the 2nd protestor submitted that the estate ought to be distributed equally amongst the 18 children of the deceased. Given the respective sizes of the properties, she further suggested that to achieve the equality proposed, the assets should be sold and the proceeds shared equally among the beneficiaries, taking into account the benefits already received by the 1st and 2nd administrators. She made reference to Ramaita & another v Ramait (Civil Appeal 545 of 2019) [2025] KECA 300 (KLR) (21 February 2025) (Judgment) and Munyole v Munyole (Civil Appeal 21 of 2017) [2022] KECA 373 (KLR) to buttress her argument.
[31] The 3rd protestor, Alamin Abdul Virani, also filed written submissions in support of his averments in his Affidavit of Protest. He reiterated that he is the 2nd born child of Pamela Adhiambo Otieno Okwaro who was the 3rd wife of the deceased, Stanslaus Dalmas Otieno Anyango. He reiterated his averments in the Affidavit of Protest and relied on Section 29 of the Law of Succession Act to demonstrate that he was a dependant of the deceased and was being maintained by him immediately prior to his death. On that account he urged to be included in the List of Beneficiaries.
[32] I have given careful consideration to the application for confirmation, its Supporting Affidavit as well as the protestor’s averments in the Affidavit of Protest. I have likewise, given due consideration to the written submissions filed by learned counsel for the disputants. It is common ground that the deceased, Stanslaus Dalmas Otieno Anyango, died intestate on 6th January 1992. A Certificate of Death was filed herein to that effect and was marked as Annexure CD-1 to the Affidavit in Support of Petition for Letters of Administration Intestate. It is also not disputed that the deceased was polygamous and that, other than his 1st wife, Florence Akinyi Otieno, he got married to two other wives, namely, Celestine Akinyi Otieno (2nd wife) and Pamela Adhiambo Otieno (3rd wife).
[33] Accordingly, although the initial petitioners, Michael Erick Omondi Otieno and Tony Nick Otieno, at first concealed the existence of other beneficiaries, they later conceded and filed a fresh letter from the Chief dated 27th August 2019 after their own sibling, Samuel Ochieng Otieno, filed an Objection to the Grant on the grounds that the duo had concealed information and left out some of the beneficiaries to the estate.
[34] From then henceforth, the parties were in agreement that the deceased was survived by the following beneficiaries:
[a] The 1st house (Florence Akinyi Balaka)
[i] Dorothy Awuor Maureen
[ii] Molly Awino Otieno
[iii] Samuel Ochieng Otieno
[iv] Beryl Achieng Otieno Curtis
[v] Tony Nick Otieno
[vi] Michael Erick Omondi Otieno
[vii] Linda Bernnie Adhiambo Otieno, and
[viii] Lynet Agatha Akeyo Otieno
[b] The 2nd house (Celestine Akinyi Otieno)
[i] Caroline Awuor Otieno
[ii] Jacqueline Akoth Otieno
[iii] Barrack Odhiambo Onyango (deceased, left son Erick Odhiambo Otieno)
[iv] Gaudencia Adhiambo Otieno
[v] Jemima Anyango Otieno,
[vi] Agnes Atieno Otieno, and
[vii] Judith Aoko Otieno
[c] The 3rd house (Pamela Adhiambo Otieno)
[i] Tawfiq Otieno (deceased)
[ii] Nabilia Dutia Otieno
[iii] Shinaz Atieno Otieno
[35] The beneficiaries were also largely in agreement in respect of the assets comprising the estate, namely:
[a] Land Parcel No. Kanyada/Kanyango/Kalanya/1706 measuring 0.13 hectares;
[b] Land Parcel No. Kanyada/Kanyango/Kalanya/1715 measuring 0.22 hectares;
[c] Land Parcel No. Kanyada/Kanyango/Kalanya/1741 measuring 0.88 hectares;
[d] Land Parcel No. Kanyada/Kanyango/Kalanya/1854 measuring 1.32 hectares;
[e] Land Parcel No. Kanyada/Kanyango/Kalanya/1856 measuring 0.77 hectares;
[f] LR No. 11/556 Eldoret Municipality.
[36] It is also common ground that, after the death of the deceased, his 3 widows also passed away. The 1st widow, Florence Akinyi Otieno, died on 9th May 2000, while the 3rd widow, Pamela Adhiambo Otieno, died in 1999. There appears to be no indication as to the date of death of the 2nd widow, but the letter of the area chief dated 27th August 2019 indicated that she is also deceased. Therefore, all the beneficiaries of the deceased rank in pari passu with each other as dependants of the deceased in terms of Section 29 of the Law of Succession Act. The provision states:
“For the purposes of this Part, “dependant” means—
(a) the wife or wives, or former wife or wives, and the children of the deceased whether or not maintained by the deceased immediately prior to his death;
(b) such of the deceased’s parents, step-parents, grand-parents, grandchildren, step-children, children whom the deceased had taken into his family as his own, brothers and sisters, and half-brothers and half-sisters, as were being maintained by the deceased immediately prior to his death;...”
[37] In the premises, there are only three issues for determination raised by way of Protests. The first issue is in connection with an asset in Eldoret which was not disclosed in the Petition for Grant of Letters of Administration Intestate, namely Eldoret Municipality/Block 9/919. The 2nd protestor raised the issue and asked that the said property be taken into consideration for purposes of distribution. The second issue is with regard to the rental income received by the 1st and 2nd administrators since 2000 to date. The 2nd protestor sought that the two administrators be required to account for the rental proceeds. Lastly, a dispute arose as to whether the 3rd protestor, Alamin Abdul Virani, is a beneficiary of the deceased. The Court will also make a comment on the Mode of Distribution.
A. Whether Property No. Eldoret Municipality/Block 9/919 is part of the estate of the deceased:
[38] As has been pointed out herein above, LR No. Eldoret Municipality/Block 9/919 was not disclosed in the Affidavit in Support of Petition for Grant of Letters of Administration Intestate (Form. P&A.5) filed on 3rd August 2018 by Michael Erick Omondi Otieno and Tony Nick Otieno. The issue was raised by the 2nd protestor, Shenaz Atieno Otieno, at paragraphs 4 and 13. At paragraph 13 the 2nd protestor deposed that:
“…I am aware that despite Title No. Edoret Municipality Block 9/919 comprising part of the estate of the deceased, the same was unlawfully and irregularly transferred to FLORENCE AKINYI OTIENO (Deceased) who was the first wife of the Deceased after the demise of the Deceased without succession proceedings or consent of the other beneficiaries and subsequently to the children of the late FLORENCE AKINYI OTIENO (Deceased).
[39] Although no evidence was presented by the 2nd protestor to prove this assertion, say by way of a Certificate of Search or Title Deed, the 1st administrator, who was also the 1st protestor and sibling of the 2nd administrator, conceded at paragraph 9 of his Affidavit of Protest that:
“…upon the demise of my late father, my mother, Florence Akinyi Otieno, transferred L.R No. 9/919 Eldoret Municipality to herself without commencing succession proceedings for my late father’s estate so that the parcel of land could be registered in her name…”
[40] The 1st administrator/protestor produced an extract of the Register for the said parcel as Annexure “ASO-1” and explained that, after his mother passed away, his siblings, namely, the 2nd administrator, Tony Nick Otieno, Agatha L. Akeyo (the 5th respondent), Michael Erick Omondi Otieno (the 11th respondent) and Linda Bernie Otieno (the 13th respondent) transferred the property to themselves; which transfer was also done without commencing succession proceedings for the estate of their mother. In the premises, the 1st respondent also prayed that the unlawful transfers of L.R No. 9/919 Eldoret Municipality be reversed and the title reverted to the estate of the deceased for purposes of distribution.
[41] The extract of the Register confirms that LR No. 9/919 Eldoret Municipality was transferred to Florence Akinyi Otieno on 1st March 1994 and a Certificate of Lease issued to her. It is manifest, therefore, that this transaction took place after the demise of the deceased. The document further shows that the property was transferred to Tonny Nick Otieno, Erick Michael Otieno, Linda Bernie and Linet Agatha Otieno on 8th February 2000.
[42] There is no question that the property was illegally transferred in disregard of Section 45 of the Law of Succession Act, which states:
“(1) Except so far as expressly authorized by this Act, or by any other written law, or by a grant of representation under this Act, no person shall, for any purpose, take possession of, dispose of, or otherwise intermeddle with, any free property of a deceased person.
(2) Any person who contravenes the provisions of this section shall—
(a) be guilty of an offence and liable to a fine not exceeding ten thousand or to a term of imprisonment not exceeding one year or to both such fine and imprisonment.”
[43] In Benson Mutuma Muriungi v C.E.O. Kenya Police Sacco & another [2016] KEHC 7145 (KLR), Hon. Gikonyo, J. expressed the view that:
“[5] There is no specific definition of the term intermeddling provided in the Law of Succession Act. The Act simply prohibits taking possession of or disposing of, or otherwise intermeddling with, any free property of a deceased person by any person unless with the express authority of the Act, any other written law or a grant of representation under the Act. But in my understanding, the use of wide and general terms such as; ‘’for any purpose’’ and‘’or otherwise intermeddle with’’ in the Act portends that the category of the offensive acts which would amount to intermeddling is not heretically closed or limited to taking possession and disposing of the property of the deceased. I would include in that category such acts as; taking possession, or occupation of, disposing of, transferring, exchanging, receiving, paying out, distributing, donating, charging or mortgaging, leasing out, interfering with existing lawful liens or charge or mortgage of the free property of the deceased in contravention of the Law of Succession Act or any other written law. I do not pretend to close the list either or make it exhaustive. The list could be long. However, any act or acts which will dissipate or diminish or put at risk the free property of the deceased are acts of intermeddling in law.”
[44] In the premises, the illegal transfers are null and void. As aptly put by Lord Denning in Mcfoy v United Africa Company Limited [1961] 3 AllER 1169:
“…if an act is void, then it is in law a nullity. It is not only bad, but incurably bad. There is no need for an order of the court to set it aside. It is automatically null and void without more ado, though it is sometimes convenient to have the court declare it to be so. And every proceeding which is founded on it is also bad and incurably bad. You cannot put something on nothing and expect it to stay there. It will collapse…”
[45] Accordingly, the illegal transfers are hereby reversed and the property, namely, L.R No. Eldoret Municipality/Block 9/919, is hereby reverted to the estate of the deceased, Stanslaus Dalmas Otieno Anyango.
B. On whether the 1st and 2nd administrators ought to account for the proceeds of rent for Property No. LR Eldoret Municipality/Block 11/556:
[46] It was the contention of the 2nd protestor that, upon the demise of the 1st widow, Florence Akinyi Otieno, the 1st administrator stepped in and started collecting rent from the subject property from the year 2000; and that he did so until the year 2013 when the 2nd administrator took over. It was her assertion that the duo never accounted to the rest of the beneficiaries on how the rental proceeds were utilized. Consequently, they approached the lower court and obtained orders for the rental proceeds to be deposited in the Deposit Account of the court at KCB Bank. She added that the order was likewise ignored by the 2nd administrator who has maintained that course of disobedience to date.
[47] The court record confirms this position; which is what prompted the filing of the contempt application dated 20 April 2022. Although the orders were declined it is indeed the case that the orders of the lower court as to the depositing of rent in a bank account was made and it was made by consent of the parties. It was there for the 2nd applicant to demonstrate compliance. No such evidence was availed.
[48] Section 83(f) of the Law of Succession Act leaves no doubt that the beneficiaries have a beneficial interest and right to the income earned from the estate assets. It recognizes that one of the responsibilities of an administrator is:
“…to distribute or to retain on trust (as the case may require) all assets remaining after payment of expenses and debts as provided by the preceding paragraphs of this section and the income therefrom, according to the respective beneficial interests therein under the will or on intestacy, as the case may be;” (emphasis added)
[49] I am therefore of the view that it is imperative for the 1st and 2nd respondents to account for the sums received from the estate by way of rent, before distribution can be effected.
C. On whether the 3rd protestor, Alamin Abdul Virani is a beneficiary of the Deceased:
[50] The 3rd protestor contended that he is the 2nd born child of Pamela Adhiambo Otieno Okwaro who was the 3rd wife of the deceased, Stanslaus Dalmas Otieno Anyango. He relied on Section 29 of the Law of Succession Act to demonstrate that he was a dependant of the deceased and was being maintained by him immediately prior to his death. On that account he urged to be included in the List of Beneficiaries.
[51] On the other hand the 1st administrator/protestor disowned him. He averred and submitted that the 3rd protestor was not a dependant of the deceased as he was never sired by the deceased. He further submitted that the deceased neither knew nor raised the 3rd protestor before his demise. The 1st protestor made reference to the degree of consanguinity and affinity as provided for in Section 39(1) of the Law of Succession Act and the exposition in that regard in In re Estate of the late M’thigai Muchangi (Deceased) [2020] eKLR as well as the Chart drawn in Immaculate Wangari Munyaga v Zachary Waweru Ireri [2016] eKLR to support their submission that the 3rd protestor does not fall in any of the categories of consanguinity or affinity set out in Section 39(1). The 1st protestor therefore submitted that he was not a dependant for purposes of Section 29 of the Law of Succession Act; and added that it is in the best interest of the beneficiaries herein that the Affidavit of Protest filed by the 3rd protestor be struck out or expunged from the record and that the costs be borne by the 3rd protestor.
[52] It is also significant to note that his own sibling, the 2nd protestor excluded him from her list of beneficiaries in the 3rd House at paragraph 3 of her Affidavit of Protest.
[53] Needless to say that it is the law that he who alleges must prove. Section 107 of the Evidence Act, Chapter 80 of the Laws of Kenya is explicit that:
“(1) Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.
(2) When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person.”
[54] Likewise, Section 108 of the Evidence Act provides that:
“The onus of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side.”
[55] In Gatirau Peter Munya v Dickson Mwenda Kithinji & 3 others (supra) the Supreme Court held:
“The person who makes such allegations must lead evidence to prove the fact. She or he bears the initial legal burden of proof, which she or he must discharge. The legal burden in this regard is not just a notion behind which any party can hide. It is a vital requirement of the law. On the other hand, the evidential burden is a shifting one, and is a requisite response to an already discharged initial burden. The evidential burden is the obligation to show, if called upon to do so, that there is sufficient evidence to raise an issue as to the existence or non-existence of a fact in issue.”
[56] In the face of the averments by the 1st and 2nd protestors, it was upon the 3rd protestor to discharge the evidential burden of proof. He relied on two letters. The first letter, dated 4th September 2007, was written by the Public Trustee, Nairobi to the Assistatn Administrator General, Eldoret. It is notable that it concerns the estate of Pamela Adhiambo Okwaro Otieno and not Stanslaus Dalmas Otieno Anyango, the deceased herein. Similarly, the second later, dated 12th September 2007 is in reference to the estate of the late Pamela Adhiambo Otieno Okwaro. The exact nature of the assets comprising that estate have not been disclosed; and therefore it is left to conjector. In the absence of concrete evidence connecting the rights of the 3rd protestor to the estate of the deceased herein, it is my finding that the 3rd protestor’s Protest appears to be an afterthought. His claim to inheritance as a beneficiary herein is hereby dismissed.
D. A comment on the Mode of Distribution:
[57] With regard to the appropriate mode of distribution, the beneficiaries appear to be in agreement that the estate be distributed equally amongst the 18 beneficiaries of the deceased. The 2nd protestor submitted that the estate ought to be distributed equally amongst the 17 children of the deceased. Given the respective sizes of the properties, she further suggested that to achieve the equality proposed, the assets should be sold and the proceeds shared equally among the beneficiaries, taking into account the benefits already received by the 1st and 2nd administrators. She made reference to Ramaita & another v Ramait (Civil Appeal 545 of 2019) [2025] KECA 300 (KLR) (21 February 2025) (Judgment) and Munyole v Munyole (Civil Appeal 21 of 2017) [2022] KECA 373 (KLR) to buttress her argument.
[59] However, having found that there is need for the 1st and 2nd administrators to account for the rental income received by them over the years, final orders on distribution are hereby deferred pending such account.
[60] In the result, is the finding of this Court that:
[a] The assets comprising the estate of the deceased are:
[i] Kanyada/Kanyango/Kalanya/1854, 1856, 1741, 1715, 1705 to the extent to which the estate is involved/shares it holds thereto;
[ii] Property No. Eldoret Municipality/ Block 11/556, and
[iii] Eldoret Municipality/Block 9/919
[b] The beneficiaries of the deceased are as per the letter of the area chief dated 27th August 2019 and set out at paragraph 34 hereof.
[c] The 1st and 2nd respondents are liable to account for the income received from the estate for the period 2000 to date.
[61] It is accordingly hereby ordered that:
[a] The Protests presented by the 1st and 2nd protestors are hereby upheld to the extent aforementioned.
[b] The Protest by the 3rd protestor fails and is hereby dismissed.
[c] The final orders on the Mode of Distribution and costs to await the furnishing of account by the 1st and 2nd administrators in respect of rental income received from the estate of the deceased from the year 2000 to date.
It is so ordered.
DATED, SIGNED AND DELIVERED VIRTUALLY AT HOMA BAY THIS 8TH DAY OF MAY, 2025