Rodgers Matifari v Peter Wangila Matifari [2020] KEHC 5014 (KLR)

Full Case Text

REPUBLIC OF KENYA.

IN THE HIGH COURT OF KENYA AT BUNGOMA.

SUCCESSION CAUSE NO. 195 OF 2014.

RODGERS MATIFARI.........................................DMINISTRATOR/APPLICANT

VERSUS

PETER WANGILA MATIFARI.....................ADMINSTRATOR/RESPONDENT

J U D G M E N T

The deceased Luka Matifari Wobata died on 31. 5.2012. He had 10 wives and 39 children. He also had 11 Parcels of land and left an estate valued at Kshs.1,000,000/=. Peter Wangila Matifari 1st Petitioner a son of Deceased applied for Letters of Administration. Rodgers Matifari Obata another son of the deceased objected to the grant being issued to 1st Petitioner. By order dated 7. 6.2016 Aroni J issued grant of Letters of Administration Intestate to Peter Wangila Matifari and Rodgers Matifari Obata jointly.

The 2 Petitioners were to apply for confirmation of the grant. However they were unable to agree on common mode of distribution. By consent the 2 Petitioners each filed the preferred mode of distribution and gave evidence in support of their respective mode of distribution.

From the evidence the deceased at time of death had 10 wives;

(1) Rosina Naliaka Matifari

(2) Mary Namaemba (deceased)

(3) Fridah Namarome

(4) Repa Nafuna (deceased)

(5) Grace Nafula

(6) Jane Nangekhe

(7) Margaret Nabalayo

(8) Marisiano Nabangala

(9) Priscilla Namalwa

(10) Everlyne Naliaka

The deceased had 10 widows, Children (19) Sons and (17) Daughters;

(1). WIDOW 1: ROSINA NALIAKA MATIFARI:

DAUGHTERS:

1. Priscila Munika Matifari

2. Felister Nasimiyu Matifari

3. Beatrice Masi Pwondi Matifari

SONS:

1. George Tindi Matifari

2. Patrick Wekesa Matifari

3. Charles Wakhungu Matifari

4. John Wamalwa Matifari

5. Mourice Wanjala Matifari

6. Christopher Waswa Matifari (deceased)

(2) WIDOW 2: MARY NAMAEMBA MATIFARI (Deceased)

DAUGHTERS:

1. Fridah Nafula Matifari

2. Perita Nafunal Matifari

SONS:

1. Sylvester Juma Matifari

2. Zacharia Simiyu Matifari

(3) WIDOW 3: FRIDA NAMAROME MATIFARI

DAUGHTERS:

1. Concepita Nakhumicha Matifari

2. Brigit Nasambu Matifari

SONS:

1. Peter Wangila Matifari

2. Eliud Wabomba Matifari

3. Martin Shikuku Matifari

(4) WIDOW 4: REPA MAFUNA MATIFARI (Deceased)

DEPENDANTS:

1. Meshack Wangila

2. Robert Wafula

(5) WIDOW 5: GRACE NAFULA MATIFARI

DAUGHTERS:

1. Violet Nasimiyu Matifari

2. Everlyne Namutosi Matifari

SON:

1. Chrispinus Nyongesa Matifari

(6) WIDOW 6: JANE NANGEKHE MATIFARI

SON:

1. Josephat Sifunal Matifari

DEFENDANT:

1. Isaya Matifari

(7) WIDOW 7: MARGARET NABALAYO MATIFARI

DAUGHTERS:

1. Josphine Wamalwa Matifari

2. Gladys Nafuna Matifari

3. Judith Kesia Matifari

(8) WIDOW 8: MARISIANO NABANGALA MATIFARI

DAUGHTER:

1. Centrine Ndelema Matifari

(9) WIDOW 9: PRISILA NAMALWA MATIFARI

DAUGHTER:

1. Merceline Nafula Matifari

(10) WIDOW 10: EVERLYNE NALIAKA MATIFARI

DAUGHTERS:

1. LNM (Minor)

2. CNM (Minor)

3. RM (Minor)

SONS:

1. IWM (Minor)

2. MWM (Minor)

3. FWM (Minor)

DEPENDANT:

1. Godfrey Mukhwana Juma

The deceased at time of death had the following properties/parcels of land;

PARCEL NO. MEASUREMENT

E. BUKUSU/N. KANDUYI/4648 0. 026HA

W. BUKUSU/N. MATEKA/1381 2. 9HA

W. BUKUSU/N. MATEKA/1384 1. 9HA

W. BUKUSU/N. MATEKA/1687 2. 3HA

W. BUKUSU/N. MATEKA/1770 1. 33HA

W. BUKUSU/N. MATEKA/xxxx 31. 20HA

W. BUKUSU/N. MATEKA/2420 2. 50HA

W. BUKUSU/N. MATEKA/2421 2. 70HA

W. BUKUSU/N. MATEKA/2422 1. 46HA

W. BUKUSU/N. MATEKA/2423 4. 50HA

W. BUKUSU/N. MATEKA/2425 1. 25HA

W. BUKUSU/N. MATEKA/2428 2. 00HA

W. BUKUSU/N. MATEKA/2429 1. 30HA

W. BUKUSU/N. MATEKA/2430 3. 00HA

W. BUKUSU/N. MATEKA/2431 3. 45HA

The deceased had also a property in Uganda Parcel No. MARAKARU BUDARIRI BLOCK/ROAD 4 PLOT No. 131 Measuring 62 Acres. He also had a plot W. BUKUSU/N. KANDUYI/4648 on which there was development.

By direction of this court the 2 petitioners gave evidence in support of their mode of distribution.

Grace Nafula Matifari the Widow testified in support of 2nd Petitioner Rodgers Matifari proposed mode. She testified that the deceased had 10 wives;

(1) Rosina Naliaka Matifari

(2) Mary Namaemba (deceased)

(3) Fridah Namarome

(4) Repa Nafuna (deceased)

(5) Grace Nafula

(6) Jane Nangekhe

(7) Margaret Nabalayo

(8) Marisiano Nabangala

(9) Priscilla Namalwa

(10) Everlyne Naliaka

She testified that after the death of deceased a Meeting was held on 12. 6.2012 chaired by Jim Busolo as the Chairman where the distribution as the proposal was agreed in the “lufu” Meeting. She supports the distribution as made during the “lufu” Meeting. On being cross examined by Musumba for 1st Petitioner she admitted attending the Meeting held on 24. 9.2016 where she was given 4 acres and she signed the Minutes. In respect to Uganda property she testified that Uganda Land had not been distributed.

Isaya Kutoyi was the Secretary of the Meeting held on 24. 9.2016 in which distribution of estate was done as per the proposal by Rodgers Matifari the 2nd Administrator. He however did not attach the list of the beneficiaries who attended the meeting. Simon Simiyu a son of deceased also attended the Meeting and confirmed this distribution. Upon cross examination he admitted that the deceased had prior to his death gave him 2. 9 acres from Bukusu/N. Mateka/2425 part of which he has sold.

Rodgers Matifari 1st petitioner testified that deceased had 10 wives - 8 are alive and 2 are deceased. Prior to his death the deceased had appointed Patrick Wekesa Matifari as Chairman of his Committee running his affairs including a bank account. He proposed that court adopted his mode of distribution. He proposed that the Plot E. Bukusu/N. Kanduyi/4648 which is developed be given to the widows. He also urges the Uganda property be included in the estate and distributed. He confirmed that W. Bukusu/N. Mateka/2127 Measuring 1. 3HA was transferred to his name. He also confirmed W. Bukusu/N. Mateka/1770 is occupied by Martin Sikuku - his Step brother, and Margaret his (Rodgers) real mother.

1st Petitioner witness Peter Wangila Matifari the 2nd Petitioner filed an affidavit of protest sworn on 2. 2.2018. He testified that a meeting held on 24. 9.2016 the estate was distributed according to the proposal in paragraph 12 of his affidavit. He testified that the widows were each given 4 acres to share with their daughters. Plot No. E. Bukusu/N. Kanduyi/4648 Measuring 25ft by 100ft which is developed be left for the widows and the income from the property be used to support the widows.

He in respect to Uganda land he stated that it is not available for distribution as it is registered in name Patrick Wekesa. According to him he proposed his mode as hereunder: -

S/NO. NAMES ACRES PARCEL NO. ID. NO.

1. GEORGE TINDI 10 2421 & 2422 [….]

2. SYLVESTER JUMA 11 2423 [….]

3. CHARLES WAKHUNGU 7. 5 2430 [….]

4. JOHN WAMALWA 3. 5 2429 [….]

5. CHRISTOPHER WASWA 6 2428

6. ZACHARIA SIMIYU 8. 4 2431

7. CHRISPINUS NYONGESA 6. 12 2420

8. JOSEPHAT SIFUNA 4. 8 1384 [….]

9. MARTIN SIKUKU 3 1381 [….]

10. RODGERS WABOMBA 3. 4 1770

11. SIMEON SIMIYU 2. 9 2425

12. IW 12 xxxx MINOR

13. FW 12 xxxx MINOR

14. MW 12 xxxx MINOR

15. GM 1 xxxx MINOR

The Minor Parcels of Land will be held in truest by the Mother, Everlyne Naliaka and the Administrator Peter W. Matifari until they attain the age of 18 years.

All the daughters will share land with their mothers.

S/NO. NAMES ACRES PARCEL NO. ID. NO.

1. Rosina Naliaka

(a) Prisila Munika

(b) Felister Namiyu

[….]

2. Mary Namaemba - Deceased

(a) Frida Nafula

(b) Peritaa Nafuna 4 Acres 2419 Deceased

[….]

3. Frida Namarome

(a) Consepta Nakhumicha

(b) Bridgit Nasambu 4 Acres 2419 [….]

[….]

4. Repa Nafuna - Deceased

(a) Meshack Wangila Wanami

(b) Robert Wafula

(Trust will be in the hands of the Administrator (Peter W. Matifari) 4 Acres 2419 [….]

[….]

5. Grace Nafula

(a) Violet Nasimiyu

(b) Everlyne Namutosi 4 Acres 2419 [….]

6. Jane Nangekhe

(a) Isaya Matifari 3 Acres 1687 [….]

7. Margaret Nabalayo

(a) Josphine Namalwa

(b) Gladys Nafuna

8. Marisiano Nabangala

(a) Centrine Nderema 4 Acres 2419

9. Prisila Namalwa

(a) MN 4 Acres 2419 Minor

10. Everlyne Naliaka

(a) LN

(b) CN

Minor

Eliud Wabomba Matifari a son of the deceased testified that he attended the Meeting of 24. 9.2016 chaired by Patrick Wangamati where the property were shared. Rodgers Matifari the 2ndPetitioner did not attend the Meeting. Patrick Wekesa Matifari a Son of the deceased confirmed in the meeting of 24. 9.2016 chaired by Patrick Wangamati, attended by Paulo Wanyama, Joseph Makokha, Martin Sikuku who are Members of Bamuyonga clan. He testified that before his death the deceased had given to him the land in Uganda which is now registered in his name and is therefore not part of the estate; for distribution. He also testified that Rodgers had been given 5 Acres of land bought for Richard Ngome.

From the evidence tendered by the 1st and 2nd Petitioner and the witnesses, it is apparent that the deceased had during his life time given on the ground certain property to the dependants. The parcel No. E. Bukusu/North Mateka/2419 measuring 79. 3 Acres had not been settled. The other property not allocated were E. Bukusu/N. Kanduyi/4648 measuring 25ft by 100ft which is developed with premises from which there rental income, Mateka/Budadiri Block/Road 4 Plot No. 131. There is an issue whether this farm in Uganda was part of the estate and available for distribution. Patrick Wekesa testified that the deceased had given him this land before he died. He readily admits the land belonged to the deceased. He then stated he was given the land by deceased but in his statement he said he bought it but produced no evidence of purchase. None of his witnesses testified to how the deceased gave Patrick the land and most were unaware of any such transfer. I am satisfied that any registration at this parcel of land in name of Patrick was fraudulent. I therefore find that the Marakaru/ Bubadiri Block/Road 4 Plot No. 131 in Uganda is part of the estate and available for distribution.

I find that there was a meeting held on 24. 9.2016 where the distribution of the estate was considered. Considering all the evidence and submission, I hereby distribute the estate as hereunder;

SM/NO NAMES ACRES PARCEL NO.

1. GEORGE TINDI 10 2421 & 2422

2. SYLVESTER JUMA 11 2423

3. CHARLES WAKHUNGU 7. 5 2430

4. JOHN WAMALWA 3. 5 2429

5. CHRISTOPHER WASWA

(a) ROSE MACHUMA

(b) ROSELINE NALIAKA 6 2428

6. ZACHARIA SIMIYU 8. 4 2431

7. CHRISPINUS NYONGESA 6. 12 2420

8. JOSEPHAT SIFUNA 4. 8 1384

9. MARTIN SIKUKU 3 1381

10. RODGERS WABOMBA 3. 4 1770

11. SIMEON SIMUYU 2. 9 2425

12. ISAAC WANYONYI 12 2419

13. FRED WANJALA 12 2419

14. MANUEL WEKESA 12 2419

15. GODFREY MUKHWANA 1 2419

NOTE: All the daughter will share land with their mothers.

WIDOWS:

S/NO. NAMES ACRES PARCEL NO. ID. NO.

1. ROSINA NALIAKA

(a) PRISILA MUNIKA

(b) FELISTER NASIMIYU

[….]

2. MARY NAMAEMBA

(Deceased)

(a) FRIDA NAFULA

(b) PERITA NAFUNA 4 Acres 2419 Deceased

([….])

No Kenyan ID

3. FRIDA NAMAROME

(a) CONCEPT NAKHUMICHA

(b) BRIDGIT NASAMBU 4 Acres 2419 [….]

[….]

4. REPA NAFUNA (Deceased)

(a) MESHACK W. WANAMI

(b) ROBERT WAFULA 4 Acres 2419 Deceased

[….]

5. GRACE NAFULA

(a) VIOLET NASIMIYU

(b) EVERLYNE NAMUTOSI 4 Acres 2419 [….]

[….]

6. JANE NANGEKHE

(a) ISAYA MATIFALI 3 Acres 1687 [….]

[….]

7. MAGARET NABALAYO

(a) JOSEPH NAMALWA

(b) GLADYS NAFUNA

8. MARISIANO NABANGALA

(a) CENTRINE NDEREMA 4 Acres 2419 [….]Not acquired ID

9. PRISILA NAMALWA

(a) MERCELINE NAFULA 4 Acres 2419 [….]

10. EVERLYNE NALIAKA

(a) LN

(b) CN

MINOR

BENEFICIARIES LAND PARCEL NO. SHARE

(ACRES)

ROSINA NALIAKA MATIFARI

JANE NANGEKHE MATIFARI

FRIDA NAMAROME MATIFARI

ZACHARIA SIMIYU MATIFARI

(On Behalf of MARY NAMAEMBA (Deceased)

GRACE NAFULA MATIFARI

MARGARET NABALAYO MATIFARI

MARISIANO NABANGALA MATIFARI

PRISCILLA NAMALWA MATIFARI

EVERLINE NALIAKA MATIFARI

ROBERT WAFULA MAKOKHA

On behalf of REPA NAFUNA

(Deceased)

RODGERS MATIFARI OBATA

PETER WANGILA MATIFARI

(ADMINISTRATIVE COSTS) UGANDA

N LAND BUDADIRI BLOCK 4 PLOT NO. 131 IN TRUST OF PATRICK WEKESA MATIFARI 6

The plot parcel No. E. Bukusu/N. Kanduyi/4648 to be jointly registered in the names of 10 widows of the deceased who will agree on the mode of administering the property and income.

Dated, Signed and Delivered at Bungoma this 5th day of June, 2020

........................

S.N. RIECHI

JUDGE