The High Court has warned men against disinheriting their sisters by denying them a share of their parents’ assets, terming it a criminal offence punishable with imprisonment for a term not exceeding one year, or a fine, or both.
The court also expressed displeasure over an emerging trend in succession cases, where persons seeking to be administrators of an estate fail to disclose to the court names of all the surviving children and spouses.
Justice William Musyoka said Section 51(2)(g) of the Law of Succession Act requires disclosure of every surviving member of the family of the deceased person, whether that individual will eventually take a share in the estate or not.
Thwarting a US-based man’s attempt to disinherit his four sisters by denying them a share of their mother’s 30 acres in Kakamega, the judge stated that the police and the Director of Public Prosecution should step in to curb the disinheritance menace within families.
He warned that giving a court false information concerning survivors of a dead person in the succession process and applications for the administration of the estate is a criminal offence.
The judge said the effect of non-disclosure is that “those not disclosed would not be considered at distribution”. The shares due to them would go to those disclosed, meaning that they would be disinherited.
“The importance of making a full and frank disclosure in these applications is underscored in section 52 of the Law of Succession Act, which makes it an offence to wilfully or recklessly make a statement which is false,” said Justice Musyoka.
“Of course, there are not many prosecutions founded on Section 52, largely because the police and the Director of Public Prosecutions view these as family matters where they need not be involved. But these are serious matters, in respect of which the police ought to get involved to punish those who mislead the court,” said the judge.
Succession case
He made the remarks while delivering judgment on a succession case involving the estate of Monica Wanjiru Musasia, who died in 1992 and was survived by seven children (three daughters and four sons).
One of the sons, Victor Kelonye, filed a petition in court in 2005 seeking to become the administrator of the estate comprising two land parcels.
Mr Kelonye admitted at the oral hearing of the case that he did not disclose the daughters, ostensibly as their father, who died in 2013, had said that they should not be given anything. He said that his father had directed that the female children be left out of the distribution.
He also conceded that he did not inform his brothers and sisters that he was petitioning for representation.
The survivors had been listed as four — Kelonye, Musa Musasia, Maudling Ambuga and Peter Lugose. A grant for estate administration was duly made on January 9, 2006, to Mr Kelonya and the same was confirmed by the court on July 27, 2011, and a certificate of confirmation of grant was issued.
The certificate devolved one of the land parcels absolutely upon the administrator while the other plot went to Maudling Ambuga, Peter Lugose and the administrator.
At confirmation of the grant, the administrator allocated himself 17.5 acres, Mr Ambuga seven acres and Mr Lugose five acres, and left nothing for his sisters. A caveat was thereafter lodged at the registry by Maudling, Ruth Waithera, Grace Kadenyi and Jane Andia in June 2014 to effect that nothing ought to be done in the estate without notice to them.
Mr Ambuga also sought revocation of the grant that had been issued to Mr Kelonye on grounds that the proceedings to obtain the documents were defective, as there was no full disclosure of all the children of the deceased. He said the daughters had been left out.
Justice Musyoka revoked the grant saying, the administrator concealed and misrepresented facts to the court.
The court appointed Mr Ambuga and Mr Kelonya as the administrators of the estate and directed them to apply for fresh confirmation of their grant within 90 days, where they will involve all the children, both male and female. The case will be mentioned after 90 days for compliance check and further directions.
