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ELCPartially AllowedSuccession Cause (Bungoma) – number not stated in judgment· [2019] KEELC 1660 (KLR)

In re Estate of John Wamalwa Mutoro (Deceased) [2019] KEELC 1660 (KLR)

High Court of Kenya (Family Division, Succession)
24 September 2019
SRS. N. Riechi
1,638 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court ruled that land transferred after an owner's death, without confirmed succession, remains part of the estate and must be shared among beneficiaries.

What this practically means

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Executive summary

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John Wamalwa Mutoro died intestate on 18 September 2002 leaving two widows, Mary Nasipwondi Wamalwa (1st wife, 9 children) and Margaret Nafula Wamalwa (2nd wife, 3 children). Mary took out the succession cause and obtained a grant; after objection, Aroni J on 9 March 2017 made both widows co-administrators. Their competing modes of distribution could not be reconciled, the dispute centring on whether parcel E. Bukusu/E. Sang’alo/1446 belonged to the estate. Viva voce evidence was taken. Margaret testified she bought the land in 1986 from Zakayo Sangura Musee for Kshs.32,000 and obtained transfer in 2005, producing a sale agreement. However, Fernandis Nyongesa Barasa, the clerk who wrote the agreement, disowned the produced document, testifying that the deceased's name had been added later. The court found the agreement's genuineness doubtful, noted the transfer post-dated the death, and held that the deceased had built a home for Margaret on the parcel. It concluded the estate comprised three assets: Bokoli/Kituni/594 (5 acres), Ndivisi/Muchi/1560 (Webuye plot) and E. Bukusu/E. Sang’alo/1446 (3.7 acres). The grant was confirmed with the Webuye plot shared equally between the widows for their children, Bokoli/Kituni/594 distributed 0.5 acres each to the 1st house's ten beneficiaries, and the Sang'alo parcel allotted to the 2nd house (1.0 acre to Margaret, 0.9 acres each to Namweya and Moses, 0.09 acres to Mutoro). Pre-confirmation transfers were declared null and void. No costs order was made.

Key legal issues

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01

Whether E. Bukusu/E. Sang’alo/1446 was part of the deceased's estate

Holding

It formed part of the estate; the 2nd widow's claim of sole ownership failed

Reasoning

The court found the deceased had set a home for the 2nd widow on the parcel. The sale agreement produced was disowned by its author, who testified the name of John Mutoro had been added later, casting doubt on its genuineness. The transfer occurred in 2005 after the deceased's death in 2002, and the seller's claim of ignorance of her marriage was found curious. The claim was therefore an afterthought.

p. 4
02

Distribution of the estate between the two houses

Holding

Grant confirmed with Ndivisi/Muchi/1560 shared equally between the widows, Bokoli/Kituni/594 to the 1st house and E. Bukusu/E. Sang’alo/1446 to the 2nd house

Reasoning

Having found three assets comprised in the estate, the court confirmed the grant adopting the 1st widow's mode as to Bokoli/Kituni/594 (0.5 acres per beneficiary), allotting Sang'alo land to the 2nd house, and directing the Webuye plot be divided equally between the two widows on behalf of their children.

p. 4

Legal principles established

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  • A transfer of a deceased person's property made before confirmation of the grant is illegal, null and void
  • A party's handwritten documents whose author disowns them as produced may be found not genuine

Court orders

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  1. 1.Confirmation of the grant with Ndivisi/Muchi/1560 divided equally between the 1st widow Mary Nasipwondi Wamalwa and 2nd widow Margaret Wafula Wamalwa for and on behalf of their respective children
  2. 2.Bokoli/Kituni/594 distributed to the 1st house, 0.5 acres each to Mary Nasipwondi Wamalwa, Janet Nasimiyu Wamalwa, Denson Mutoro Wamalwa, Monica Naliaka Wamalwa, Enes Nafula Wamalwa, Brian Meule Wamalwa, Carolyn Nasaba Wamalwa, Alex Wanjala Wamalwa, Doris Khalayi Wamalwa and Lucy Nanjala Wamalwa
  3. 3.E. Bukusu/E. Sang’alo/1446 distributed to the 2nd house: Margaret Nafula Wafula 1.0 acre, Namweya Wamalwa 0.9 acres, Moses Wamalwa 0.9 acres, Mutoro Wamalwa 0.09 acres
  4. 4.Any transfer made on the deceased's property before confirmation of the grant declared illegal, null and void
Jurisdiction invoked
Law of Succession Act – jurisdiction to confirm a grant and distribute the estate of a deceased person

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "In re Estate of John Wamalwa Mutoro (Deceased) [2019] KEELC 1660 (KLR)", Case Analysis (2019). Succession Cause (Bungoma) – number not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/1660/eng@2019-09-24

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.