Families locked in endless court battles in succession disputes

Ordinarily, it would take less than a year to conclude a succession matter. Even so, much of the time is consumed by formalities such as the gazettement of the grant. It is faster in cases where the will or the appointed administrator of the estate is not contested.

This, however, has not been the reality for many families, who have been fighting for ages in court, as they seek to share out the estate of their departed relatives.

Thousands of cases have been pending in court for decades as the parties’ wrangle over how to distribute the estate or who should be appointed the administrator.

Some of the cases have been unresolved for more than 30 years and judges have had to plead with the wrangling relatives to embrace meditation or alternative dispute resolution as a way of settling the cases.

GAZETTEMENT

In Nairobi alone, more than 13,000 succession matters worth billions of shillings are pending in court, according to the presiding judge of the Family Division Aggrey Muchelule.

Speaking during the United Nations International Day of the Family in Nairobi last month, Justice Muchelule said the Family Division has introduced mediation across the country as an alternative dispute resolution mechanism in the quest to resolve many of the never-ending family disputes over property left behind by parents, spouses or other benefactors.

He explained that probate and administration cases take an average of one year to be completed. It takes another two weeks for approval and preparation of notices to the government printer. This is followed by one month for gazettement. The grant is issued after 30 days from the date of gazettement. The petitioner files summonses for confirmation after six months from the issuance of grant, upon which a certificate of confirmation is issued.

SEVERAL JUDGES

However, because of prolonged family disputes, billions of shillings remain locked up in succession cases, denying the families access to their wealth. This consigns some to poverty and holds back their ability to grow their wealth or improve their quality of life.

The properties in dispute include shares, money in banks and other assets. However, land remains the biggest cause of succession battles.

Among the cases that have been pending in court for decades is a matter involving the estate of former Cabinet minister Mbiyu Koinange, who died in September 3, 1981.

The case has been handled by several judges with some of the family members attempting to go to the Supreme Court after disagreeing with a decision of the Court of Appeal.

Summing up one of the cases involving the estate last year, Court of Appeal judges captured the intrigues and regretted that the relatives could not agree.

ACRIMONIOUS

“During his sojourn on this earth, the deceased acquired and accumulated massive wealth, particularly prime land in Kiambu, Nairobi, Nakuru and Mombasa counties, in all totalling to almost 6,000 acres worth billions of shillings,” the Judges noted. “Unfortunately, that wealth has turned out to be the apple of discord in his family, as vividly demonstrated in this appeal and in the proceedings in the High Court that gave rise to it. Since his death, his family has known no peace, fighting acrimoniously over whom his dependants are, and their respective shares of the property.”

Countless petitions

The litigation over the estate has over the years given rise to countless petitions, objections and applications for one relief or another, including the case at the Court of Appeal. Over time, even Koinange's grandchildren and third parties joined the fray, staking all manner of claims to portions of the vast estate.

SIBLING RIVALRY

“Even criminal prosecutions, including for murder and attempted murder, have arisen from dealings in the estate. In those proceedings, widows and children of the deceased have, without any sense of irony, easily disowned persons who at one time or another they represented to the world to be their co-wives or siblings. Many of the beneficiaries and their dependants have passed on, not to mention that a substantial part of the estate has been dissipated in the litigation, which has been on-going for over 36 years,” the judges noted.

In a ruling dated January 28, 2005, Justice Martha Koome (then a judge of the High Court and another judge who handled the matter described the family litigation as “a classical theatre of the absurd”.

In Kitale, a recent decision by Justice Hillary Chemitei also raised similar sentiments. The judge made the comments in the estate of Joseph Wamukota Wandah, noting that from the outset the case was a classic study in family feuds, disputes and greed.

“The issues at a glance appears simple and uncomplicated. However due to failure by the beneficiaries to see beyond their rivalry, this matter has lasted in this court for an unnecessarily long time. This matter as a consequence of the siblings’ rivalry has been handled by more than seven judges,” he said.

UNDERSTANDING

Justice Chemitei observed that the issues were clear and straight forward. Mr Wandah, a polygamous man, died on June 4, 2004, without a will. His first wife died before him and he married a second wife. While sharing out Wandah's property, the judge urged the feuding family members to undertake what he called “local arrangements” in terms of settling some smaller issues.

“Nothing stops them from ceding ground to each other as long as there is mutual understanding,” Justice Chemitei said.

Mediation process

While deciding a succession case in 2014 at the Eldoret High Court, Justice Fred Ochieng said it was necessary for him to emphasise that when a person dies intestate, the estate of that person cannot be effectively distributed outside the court.

P&A FORMS

“By the phrase 'effective distribution', I mean the exercise which can thereafter enable each beneficiary to get lawful title to the portion which has been given to him,” he said, adding that it is only when a court of law gives an order, specifying the property which is to be transferred to a particular person, that the said person would thereafter acquire a title lawfully.

Last month, Justice Muchelule explained further that families do not necessarily need a lawyer for the succession matters where there is no dispute.

“The Judiciary has uploaded all the P&A forms that are used in the filing of the Probate and Administration matters. Similarly, the division has during open days and other public events distributed brochures that outline the simplified versions of the procedures involved,” he said.

UNDISCLOSED

Among the reasons that cause delays and the huge case backlog is the failure by parties to prosecute the cases, unnecessary applications for adjournment and inadequate file storage capacity.

Lawyer Lempaa Soyinka said that some cases drag because parties make new discoveries, including hitherto undisclosed properties, liabilities and even new beneficiaries.

“Most of the cases that have been pending in courts for years involve a lot of wealth. But the major issue for contention in the country is land,” he said.

He supported calls for mediation because in this way, the cases are concluded expeditiously and with confidentiality. This also saves time and money.

“It also saves the relationship because parties mutually agree,” he said.

MEDIATION

Justice Muchelule agreed saying that alternative dispute resolution is less expensive compared to solving dispute through the court process and it is also quicker.

“People who opt to solve dispute through mediation decide what their solution is and they easily comply with mediation resolutions because they own the resolutions,” he said adding that mediation process is harmonious and the people involved in the process to maintain their relationship after the dispute is resolved.

So far, the judge said that some 249 cases at the Family Division had been resolved through mediation as at June 4.