In re Estate of Shadrack Khisa Naliakho (Deceased) [2021] KEHC 4385 (KLR)
Full Case Text
REPUBLIC OF KENYA.
IN THE HIGH COURT OF KENYA AT BUNGOMA.
SUCCESSION CAUSE NO. 75 OF 2009.
IN THE MATTER OF THE ESTATE OF SHADRACK KHISA NALIAKHO (DECEASED)
FRANK KHISA NALIAKHO...................................................1ST PETITIONER
CHRISISTIM WEKESA KHISA.............................................2ND PETITIONER
CATHERINE NASIMIYU KHISA..........................................3RD PETITIONER
GLADYS NAKHUMICHA KHISA.........................................4TH PETITIONER
J U D G E M E N T
Shadrack Apollo Naliakho died on 31. 7.2008. He was survived by Widow Susan Khisa, 6 Sons, and 5 Daughters. He died intestate. His estate comprised of Land, Buildings, Shares and Money in Bank Accounts. On 27. 4.2009, his widow, Susan Khisa and Sons Frank Khisa and Chrispinus Nyongesa filed this Succession Cause. They applied for grant of letters of administration intestate and the grant was issued jointly to; (1) Susan Khisa (2) Frank Khisa (3) Chrisistim W. Khisa. Susan Khisa, the 1st Petitioner passed on on 22. 5.2014 before the grant could be confirmed.
On 2. 7.2015 on application, Catherine Nasimiyu Khisa and Gladys Nakhumicha Khisa joined Frank Khisa and Chrisistim Wekesa as the 3rd and 4th Petitioners. Frank Khisa died before confirmation and was substituted by Edward Simiyu Khisa. The Petitioners now are;
(1) Edward Simiyu Khisa (1st Petitioner)
(2)Chrisistim Wekesa Khisa (2nd Petitioner)
(3)Catherine Nasimiyu Khisa (3rd Petitioner)
(4) Gladys Nakhumicha Khisa (4th Petitioner)
The deceased at time of death was survived by the following dependants;
1. Susan Naliaka Khisa (Widow) deceased
2. Maurice Khisa (Son) deceased
3. Fredrick Naliakho Khisa (Son) deceased
4. Rose Khisa (Daughter) deceased
5. Frank Khisa Naliakho (Son) deceased
6. Catherine Nasimiyu Khisa (Daughter)
7. Gladys Nakhumicha Khisa (Daughter)
8. Lilian Matanda Khisa (Daughter)
9. Chrisistim Wekesa Khisa (Son)
10. Chrispinus Nyongesa Khisa (Son)
11. Stella Nafula Khisa (Daughter)
12. Edward Simiyu Khisa (Son)
He also left the following Assets;
PROPERTIES:
(a) Those registered in the deceased’s name
NO. TITLE NUMBER LOCATION NAME
1. East Bukusu/South Kanduyi/30 Near Kanduyi Primary School
2. East Bukusu/South Kanduyi/33 Ten Star
3. West Bukusu/North Miyanga/272 Miyanga
4. East Bukusu/North Kanduyi/14 Namuyemba (Home)
5. East Bukusu/South Kanduyi/461 Mufutu
6. East Bukusu/North Kanduyi/3045 Khisa Estate
7. Bungoma/Township/282 Namachanja (a)
8. Bungoma/Township/283 Namachanja (b)
9. East Bukusu/South Kanduyi/6033 Near Kanduyi Inn
(b) Those not registered in the deceased’s name
NO. TITLE NUMBER LOCATION NAME
1. East Bukusu/South Kanduyi/981 Within Bungoma Central Business District
2. Rainbow House Kanduyi Malaba Stage
3. Bungoma/Township/221 Municipal Market Bungoma (Safaricom House)
4. Shops at Bisunu Bisunu Shopping Centre
5. South Malakisi/Kilisiru/[….] Ancestral at Bisunu village
(c) Other properties/shares
NO. TITLE NUMBER NUMBER OF SHARES
1. Standard Chartered Bank Account No.[….] 155
2. Kenya Commercial Bank Account No.[….] 8000
3. Safaricom Limited Account No.[….] 900
4. National Bank Account No.(unknown Account) Under - Unclaimed Assets Authority
The 4 Petitioners were tasked with the duty of filing a mode of distribution of the estate to all the beneficiaries. They were however unable to agree on a common mode of distribution. The court directed that they file their respective proposals on mode of distribution.
The 1st and 2nd Petitioners filed their mode of distribution which is supported by the following beneficiaries who have appended their signature thereto.
1. CHRISPINUS NYONGESA KHISA SIGNED
2. CHRISISTIM WEKESA KHISA SIGNED
3. JOSEPHINE NEKESA WATTI SIGNED
4. FLETCHER VUGUZA KHISA SIGNED
5. ROSE ANYOSO NDEGE SIGNED
6. LYDIA NYABOKE MIYOGO SIGNED
7. EDWARD SIMIYU KHISA SIGNED
Their proposal is as follows;
EAST BUKUSU/SOUTH KANDUYI/30
ROSE ANYOSO NDEGE-DAUGHTER IN LAW
EAST BUKUSU/SOUTH KANDUYI/33
LYDIA NYABOKE MIYOGO & JOSEPHINE NEKESA WATTI-4. 5 ACRES
CHRISPINUS NYONGESA KHISA-4. 5 ACRES
EAST BUKUSU/NORTH MIYANGA/272
LYDIA NYABOKE MIYOGO & JOSEPHINE NEKESA WATTI-2. 5 ACRES
CHRISPINUS NYONGESA KHISA-2. 5 ACRES
EAST BUKUSU/NORTH KANDUYI/14
UPPER PORTION
FLETCHER VUGUZA KHISA(Daughter in law)- 3 Acres
CHRISISTIM WEKESA KHISA-4 Acres
EDWARD SIMIYU KHISA-4 Acres
EDWARD SIMIYU KHISA, CHRISISTIM WEKESA KHISA, CATHERINE NASIMIYU KHISA & GLADYS NAKHUMICHA KHISA-1 Acre
LOWER PROTION
FLETCHER VUGUZA KHISA(Daughter in law)- 4 Acres
CHRISISTIM WEKESA KHISA-3 Acres
EDWARD SIMIYU KHISA- 2. 3 Acres
EAST BUKUSU/SOUTH KANDUYI/981-In the name of Susan Naliaka Khisa
CATHERINE NASIMIYU KHISA, GLADYS NAKHUMICHA KHISA, LILIAN MATANDA KHISA & STELLA NAFULA KHISA
EAST BUKUSU/SOUTH KANDUYI/461
KHISA HOLDING LIMITED
EAST BUKUSU/NORTH KANDUYI/3045
LEWIS WANG’ASA WANJALA-Grandson
BUNGOMA/TOWNSHIP/282
CATHERINE NASIMIYU KHISA & LILIAN MATANDA KHISA
BUNGOMA /TOWNSHIP/ 283
GLADYS NAKHUMICHA KHISA & STELLA NAFULA KHISA
EAST BUKUSU/SOUTH KANDUYI/6033
STELLA NAFULA KHISA
STANDARD CHARTERED BANK SHARES ACCOUNT NO. 27573
LILIAN MATANDA KHISA
KENYA COMMERCIAL BANK SHARES ACC. NO. M0047451
CHRISPINUS NYONGESA KHISA
SAFARICOM LTD. SHARES ACC. NO. 3779854
EDWARD SIMIYU KHISA
The 3rd and 4th Petitioners filed their proposal dated 30. 6.2019 and supported by the following beneficiaries who have appended signatures;
1. CATHERINE NASIMIYU KHISA SIGNED
2. LILIAN NANJALA KHISA SIGNED
3. STELLA NAFULA KHISA SIGNED
4. LEWIS WANG’ASA WANJALA SIGNED
Their proposal is as hereunder;
DESCRIPTION OF PROPERTY NAME SHARE OF
A LR NO. E. BUKUSU/S.KANDUYI/30
(Near Kanduyi Primary School) GLADYS NAKHUMICHA KHISA
STELLA NAFULA 2 Acres
2 Acres
ESTATE OF FREDRICK KHISA 1 Acre
LILIAN NANJALA KHISA 1 Acre
B LR. NO. W. BUKUSU/N. MIYANGA/272 CHRISPINUS NYONGESA 1½ Acres
ESTATE OF FRANK KHISA 1½ Acres
LEWIS WANG’ASA WANJALA 1 Acre
ESTATE OF FREDRICK KHISA 1 Acre
C LR. NO. E. BUKUSU/N. KANDUYI/14 (NAMUYEMBA HOME) ESTATE OF MAURICE KHISA 2 Acres on dry land
3 Acres near the river
CHRISISTIM KHISA 2 Acres on dry land
3 Acres near the river
CATHERINE NASIMIYU KHISA 1 Acre on dry land
GLADYS NAKHUMICHA KHISA 2 Acres on dry land
LILIAN NANJALA KHISA 2 Acres on dry land
1 Acre near the river
STELLA NAFULA 1 Acres near the river
EDWARD SIMIYU 2 Acres on dry land
3 Acres near the river
LEWIS WANG’ASA WANJALA 2 Acres on dry land
1 Acre near the river
ESTATE OF FREDRICK KHISA 1½ Acres near the river
(Family homestead to be held in trust By the Administrators)
D BUNGOMA TOWNSHIP 282 &
283 (NAMACHANJA ESTATE) GLADY NAKHUMICHA KHISA
CATHERINE NASIMIYU KHISA WHOLE
LILIAN NANJALA KHISA
STELLA NAFULA
LEWIS WANG’ASA WANJALA
E E. BUKUSU/S. KANDUYI/33 ESTATE OF GRANK KHISA 3 Acres
TENSTAR AREA) CHRISPINUS NYONGESA KHISA 3 Acres
CATHERINE NASIMIYU KHISA 3 Acres
F E. BUKUSU/N. KANDUYI/3045 LEWIS WANG’ASA WANJALA WHOLE
(KHISA ESTATE LILIAN NANJALA KHISA
H E. BUKUSU/S. KANDUYI/461 FRANK KHISA 50 feet by 100 feet
(MUFUTU ESTATE) EDWARD SIMIYU 50 feet by 100 feet
CHRISISTIM KHISA 50 feet by 100 feet
CHRISPINUS NYONGESA 50 feet by 100 feet
ESTATE OF FREDRICK KHISA 50 feet by 100 feet
ESTATE OF MAURICE KHISA 50 feet by 100 feet
CATHERINE NASIMIYU KHISA 50 feet by 100 feet
GLADYS NAKHUMICHA KHISA 50 feet by 100 feet
LILIAN NANJALA KHISA 50 feet by 100 feet
STELLA NAFULA 50 feet by 100 feet
LEWIS WANG’ASA WANJALA 50 feet by 100 feet
I BUNGOMA 221 (SAFARI BAR
BUILDING) CHRISISTIM KHISA
EDWARD SIMIYU
CHRISPINUS NYONGESA
ESTATE OF FRANK KHISA
ESTATE OF MAURICE KHISA WHOLE
ESTATE OF FREDRICK KHISA
J BISUNU MARKET PLOT CHRISISTIM KHISA
CHRISPINUS NYONGESA
EDWARD SIMIYU WHOLE
ESTATE OF FRANK KHISA
ESTATE OF MAURICE KHISA
ESTATE OF FREDRICK KHISA
K RAINBOW BUILDING PLOT CATHERINE NASIMIYU KHISA
LILIAN NANJALA KHISA
STELLA NAFULA WHOLE
GLADYS NAKHUMICHA KHISA
L KENYA COMMERCIAL BANK CHRISPINUS NYONGESA
(SHARES (8000) A/C. NO.M00477451 EDWARD SIMIYU
ESTATE OF MAURICE KHISA
ESTATE OF FRANK KHISA
CHRISISTIM KHISA WHOLE
ESTATE OF FREDRICK KHISA
M STANDARD CHARTERED SHARES (1155) A/C NO. 27573 CATHERINE NASIMIYU KHISA
GLADYS NAKHUMICHA KHISA
STELLA NAFULA WHOLE
LILIAN NANJALA KHISA
LEWIS WANG’A SA WANJALA
N SAFARICOM SHARES (900) A/C. NO.3779854 CATHERINE NASIMIYU KHISA
GLADYS NAKHUMICHA KHISA
STELLA NAFULA WHOLE
LILIAN NANJALA KHISA
LEWIS WANG’ASA WANJALA
O LR. NO. E. BUKUSU/SOUTH KANDUYI/ 6033 STELLA NAFULA 0. 02 Ha sold to STELLA NAFULA
Before the court embarks on distribution of the estate, the following facts commend themselves; firstly, East Bukusu/South Kanduyi/981 is registered in the name of Susan Naliakho Khisa, Bungoma Township/221 is registered in the name of Agnes Naliakho and Malakisi/Kulisuru/452 in the names of Dismas Mulongo, Shadrack Khisa, John Tulula, Agrey Wabomba and Joseph Wanambisi. These properties are therefore not available for distribution in these proceedings as they do not form part of the deceased’s estate.
As regards Malakisi/Kulisuru/452, it is a finding of this court that the deceased herein owned a portion of an undivided portion of land. None of the parties has indicated what the share of the deceased in that portion of land is. As such the court is unable to make a conclusive determination on the same.
It is also clear that some of the deceased’s dependants also died and are survived by their widows and children who are now the deceased’s grandchildren and the parties have conceded provisions for them.
The court has considered both proposed modes of distribution. Any distribution of the estate must include all the beneficiaries and be equal or at least equitable in form as mandated by Section 35-37 of the Law of Succession Act Cap 160.
I have considered the rival proposals and the Court’s distribution of the estate of the late Shadrack Appollo Khisa is as hereunder.
1. EAST BUKUSU/SOUTH KANDUYI/30
Gladys Nakhumicha Khisa 2 Acres
Stella Nafula 2 Acres
Rose Anyoso Ndege 2. 5 Acres.
2. EAST BUKUSU/SOUTH KANDUYI/33
Lydia Nyaboke Miyogo 2. 25 Acres
Josephine Nekesa Watti 2. 25 Acres
Chrispinus Nyongesa Khisa 4. 5 Acres
3. EAST BUKUSU/NORTH MIYANGA/272
Chrispinus Nyongesa 1. 5 Acres
Lydia Nyaboke Miyogo 0. 75 Acres
Josephine Nekesa Watti 0. 75 Acres
Rose Anyoso Ndege 1 Acre
Lewis Wang’asa Wanjala 1 Acre
4. EAST BUKUSU/NORTH KANDUYI/14
Fletcher Vuguza Khisa 5 Acres
Chrisistim Wekesa Khisa 5 Acres
Edward Simiyu Khisa 5 Acres
Catherine Nasimiyu Khisa 1 Acre
Gladys Nakhumicha Khisa 2 Acres
Lilian Nanjala Khisa 3 Acres
Stella Nafula 1 Acre
Lewis Wang’asa Wanjala 3 Acres
Rose Anyoso Ndege 1. 5 Acres.
The administrators to be registered jointly in the remainder portion.
5. EAST BUKUSU/SOUTH KANDUYI/461
Lydia Nyaboke Miyogo & Josephine Nekesa 50 X 100 Feet
Edward Simiyu 50 By 100 Feet
Chrisistim Khisa 50 X 100 Feet
Chrispinus Nyongesa 50 X 100 Feet
Rose Anyoso Ndege 50 X 100 Feet
Fletcher Vuguza Khisa 50 X 100 Feet
Catherine Nasimiyu Khisa 50 X 100 Feet
Gladys Nakhumicha Khisa 50 X 100 Feet
Lilian Nanjala Khisa 50 X100 Feet
Stella Nafula Lewis Wang’asa Wanjala 50 X 100 Feet
6. EAST BUKUSU/NORTH KANDUYI/3045
Lewis Wang’asa Wanjala
7. BUNGOMA/TOWNSHIP/282
Jointly to:
Gladys Nakhumicha Khisa
Lilian Nanjala Khisa
8. BUNGOMA /TOWNSHIP/ 283
Jointly to:
Catherine Nasimiyu Khisa
Stella Nafula Khisa
9. EAST BUKUSU/SOUTH KANDUYI/6033
Stella Nafula Khisa
10. STANDARD CHARTERED BANK SHARES ACCOUNT NO. 27573
To be shared equally between all the beneficiaries
11. KENYA COMMERCIAL BANK SHARES ACC. NO. M0047451
To be shared equally among all the beneficiaries.
12. SAFARICOM LTD. SHARES ACC. NO. 3779854
To be shared equally among all the beneficiaries.
Consequently, a certificate of confirmation of grant to issue in those terms.
This being a family matter each party to bear their own costs.
Dated, signed and delivered at Bungoma this 30th day July, 2021.
S N RIECHI
JUDGE