https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7198

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT KAPENGURIA** **PROBATE AND ADMINISTRATION CAUSE NO. 10 OF 2020** **IN THE MATTER OF THE ESTATE OF PKUMUN KAMOLO – DECEASED.** AND **IN THE MATTER OF THE ESTATE OF WILSON MAGAL KINYANG – DECEASED** **CHEMAKWANY C. NGORIANGOLE ………….. 1ST ADMINISTRATOR /OBJECTOR** **WILLIAM PKEMOI KAMOLO ...………………. 2ND ADMINISTRATOR /OBJECTOR** **J U D G M E N T** This cause relates to the estate of **Pkumon Kamolo** and **Wilson Magal Kinyang** who died intestate on 21/6/1996 and 17/2/2011 respectively. The Summons for confirmation of grant dated 7/10/2019 was filed by the 1st Administrator, **Chemakwany Ngoriangole** seeking that the grant of Letters of Administration made to **William Pkemoi Kamolo (2nd Administrator)** and **Chemakwany Ngoriangole (1st Administrator)** be confirmed. The first petitioner made a proposal on distribution at paragraph 5 of her affidavit dated 7/10/2019 in support of the summons. It is as here below: - The second Administrator did not agree with the 1st Administrators proposed distribution and filed an affidavit of protest to the summons for confirmation dated 5/11/2019. The gist of the protest was that even though the court had found that the 1st Administrator was a wife to the late Wilson Magal Kinyang, she never got children with him and that she has always had her home at her late husband Ngoriangole’s home in Lomut; that Joel Teler and Josephine Chepkite are children of Ngoriangole and have already benefitted from his estate; that the 1st Administrator having already benefitted from Ngoriangole’s estate, She should only get six acres of Kinyang’s estate; that Alex Molo is the son to the late Lonyangereng as found by the court, but not son to late Pkumun Kamolo and should not benefit from the estate; that Nicholas Kamolo is son to Ngoriangole from another wife, not Chemakwany and not entitled to benefit; that the late Michael Komon is his cousin and has no right to inherit; that his father Pkumun Kamolo had only two sons, him and Wilson Kinyang and they had no sister; that his father accommodated his nephew Samuel Kamolo who begot Geoffrey Kibor Kamolo and both his parents died and he remained on the land occupying five (5) acres as per his father’s wishes. He further deponed that the land belonged to Pkumon Kamolo but Wilson Magal was only included in the title being the eldest son. He therefore proposed that the land be shared as follows; - 1. Chemakwany Ngoriangole – 6 acres 2. William Pkemoi Kamolo – 29 acres 3. Geoffrey Kibor - 5 acres 4. Professional charges - 2 acres. He suggested the cash in the bank be shared between him and 1st Administrator. Directions were taken on 8/4/2024 that the protest be heard by way of viva voce evidence, and the protestors case had to be heard first as the plaintiff while Respondent would be the Defendant. **Protestor’s case.** The Protestor called three witnesses. The protestor **William Pkemoi Kamolo** testified as PW1. He adopted his affidavit in protest and a supplementary affidavit dated 11/8/2023 as his evidence in Chief. In the supplementary affidavit, the protestor clarified how he is related to the 1st administrator and the listed beneficiaries. He deponed that he had only one brother, Wilson Magal Kinyang, born to Pkumun Kamolo their father, and Chepocheoplurot Chemankwany; that he was the only next of kin of Wilson because Wilson never married or sired any children; that his father had a brother Teler Kamolo who was the father of Ngoriangole Terer who was husband to Chemakwany Chepkerker Ngoriangole 1st Administrator that Ngoriangole, was cousin to both him and Wilson Magal and that according to Pokot customs, the deceased could not have married his cousins’ wife; that the deceased brother could only have inherited Chemakwany and the children born by Ngoriangole, could never inherit from his brother’s estate. He further deponed that his brother Wilson Magal was very generous and paid school fees for many children including his own daughter and that does not make those he paid fees for beneficiaries to his estate. He believes that Joel Teler Lokitari manipulated records at the Commissioner of Police; that Joel Teler, Alex Molo, Nicholas Kamolo and Josephine Kamolo are not the deceased’s children; that they live in Lomut on Ngoriangoles land and are not entitled to inherit from the deceased; that he is only agreeable to Chemakwany getting six (6) acres from the deceased’s estate because the court found that she was the deceased’s Wilson’s wife. **PW2 John Lokitari Kinyang Talalun** adopted his affidavit dated 11/8/2022 as evidence in Chief. He deponed that he is a neighbour of the protestor and knew his brother, the deceased Wilson; that the deceased (Wilson) lived alone on his land together with his worker who was a Turkana. **PW3 James Epetea Ekale** adopted his affidavit dated 11/8/2023 as his evidence in Chief. He stated that in 2003, Wilson Magal (deceased) employed him as a farm worker and Supervisor. He used to cook for him too and stayed with him till he died on 17/2/2021; that in 2003, he had retired; that the deceased fell sick in 2005 and he took care of him till he died. He denied that deceased ever lived with anybody else; that deceased never slept away from home except when he went for his salary in Kitale. He denied that Chemakwany and the named beneficiaries ever lived with the deceased; that the deceased’s brother William (Protestor) who lived on the same compound used to assist with caring for the deceased when he was ailing. **PW4 Charles Luanga Krop** adopted his affidavit sworn on 11/8/2023 as his evidence in Chief. He was aged 78 years, a neighbour to the protestor and well versed in Pokot customs. He stated that where a man dies and leaves a wife, the wife may be inherited but no dowry is payable; that the woman who is inherited remains in her home and it is the man who goes to that home and if they get children, they belong to the man who has inherited but children born to the man who died remain the children of the deceased and cannot inherit from the man who inherited their mother. He agreed that a man can inherit the brother’s wife. In cross examination, he admitted that there is a Pokot Council of Elders but he is not one of them and that their customs are now documented. He also admitted that one who is inherited is called a wife but has no right to inherit from the inheritor except the children of the inheritor with her; that he knew Wilson Magal as a friend and he never had a wife. **The 1st Administrator’s case.** **DW1 Joel Loktare Teler**, a son to **Chemakwany Chepkerker** (1st Administrator) testified as DW1. He adopted his statement dated 30/9/2019 as his evidence in chief. He testified on behalf of Chemakwany Chepkerker, Alex Molo, Nicholas Kamolo and Josephine Kamolo. He referred to the court’s ruling of 9/10/2012 where the court found Chemakwany to have been wife to Nganangole Teler but upon his death in 1997, she was inherited by the deceased, Wilson Kinyang; that the court found Joel Loktare and Josephine Kamolo to be Chemakwany’s children while Alex Madasma Molo is a nephew to Wilson, his father being Lonyangereng Teler. According to DW1, the protestor is the youngest brother of his father Ngoriangole Teler, Lonyangereng Teler and Wilson Magal. DW1 produced in court a search certificate for West Pokot/Keringet A’354’ in the names of Pkumun Kamolo and Wilson Magal; Money orders which is evidence of payment of DW1’s fees and Police records which show that the deceased had recorded who were his next of kin and Chemakwany as the wife. **DW2 I P Nickson Biwott** of Police Headquarters Directorate of Legal Affairs, attended court following a court summons inviting him to come and produce the file in respect of Wilson Kinyang, a police officer who retired in 2004. He had the original file and certified copies of the same marked as D.Exh.2 (a) to (e) D.Exh.2 (b) was an application for change of next of kin dated 5/4/2002 and D.Exh. 2 (c) is the actual change of next of kin from the former next of kin Pkumun to Chemakwany his wife, Joel Teler, Nichaolas Kamolo, Alex Molo and Josephine Kamolo all indicated as the deceased’s (Wilson) children. DW1 proposed that the land be distributed as per paragraph 12 of his affidavit as follows: - 1. Chemakwany Chepkerker – 10 acres 2. William Pkemoi Kamolo - 12 acres 3. Joel Lokitare Teler – 6 acres 4. Alex Molo – 5 acres 5. Nicholas Kamolo - 5 acres 6. Josephine Kamolo – 2 acres 7. Road Reserve – 1 acre 8. Professional fees (Legal) - 1 acre Total forty-two (42) acres. As for the cash in the bank, it was suggested that the whole sum devolves to Chemakwany with her children including Alex Molo because the protestor has been in use of the forty two (42) acres from 2012 which he was leasing at 6000/= to 10,000/=. **Protestors submissions.** Mr. Barongo Counsel for the protestor filed submissions dated 12/1/2026. He urged that the only two issues for determination are 1. Who are the beneficiaries of the estate; 2. Which orders should the court issue? As regards beneficiaries, Counsel observed that this court had ruled that the 1st Administrator Chemakwany is the deceased, Wilson Kinyang’s wife, having inherited her from Ngoriangole Terer as being a beneficiary of the estate but that the court should take into account the fact that she has already inherited from the estate of Ngariongole; that William Kamolo is a brother to Wilson Kinyang being both sons of the deceased and therefore he is an heir of the estate; that Joel Loktari, Josephine Kamolo and Nicholas Kamolo are children of Ngoriongole hence not beneficiaries of the estate and that in any event they had benefited from the estate of their father Ngoriangole. Counsel relied on the decisions of **Egesa -V- Adongo Succ. E026/2021 (2024) KEHC 2956** Paragraph 12 and **Re. Estate of Gamaliel Otieno Onyiego (2018) eKLR** paragraph 21. As regards documents from the police service, Counsel submitted that the officer was identified as Makal Kilyang not Makal Kinyang and that though Wilson was enlisted into the service in 1968, the children born in 1978 are included as beneficiaries. He suggested that the distribution be as follow;- 1. Chemakwany- 6 acres 2. William Pkemoi – 29 acres 3. Geoffrey Kibor – 5 acres 4. Professional charges – 2 acres **1st Administrators submissions; -** Submissions were filed by the 1st petitioners’ Counsel, Mr. Nakitare. He submitted that with the intentions of the deceased Wilson Kinyang are contained in the Police file documents produced in evidence D.Exh.2 (a -e); that the 1st Administrator has discharged their evidential burden under section 109 of the Evidence Act and the court should distribute the estate as proposed in DW1’s witness statement. **Determination: -** I have now considered all the evidence tendered by both the protestor, his witnesses and the 1st Administrators witnesses and submissions by both Counsel. There is no dispute that this cause relates to the estates of Pkumun Kamolo and Wilson Magal Kinyang who died intestate on 21/6/1996 and 17/2/2011 respectively. I have read the Ruling of Justice Karanja dated 9/10/2012 following an objection filed by the 1st Administrator Chemakwany and noted the findings about the relationship of the parties herein. Before I proceed with the issue of distribution, I must refer to it. At page 9 last paragraph of the ruling, the court said **“From the evidence availed by way of affidavits filed herein, it is apparent that the petitioner (Wilson) and the objectors (Chemakwany and others) have a common linkage to the late Pkumun Kamolo and the late Wilson Magal Kinyang. The linkage is derived from the apparent relationship that existed between the 1st objector and the late Kinyang, brother to the petitioner and both apparent nephews of the late Pkumon Kamolo by virtue of being the sons of late Teler Kamolo, brother to the late Pkumun Kamolo.** **The evidence strongly pointed to the fact that the late Pkumun Kamolo remained unmarried during his life time and may have probably taken care of some of his brother’s children including the deceased Kinyang and the petitioner. It was undisputed that the late Pkumun Kamolo had two brothers viz Teler Kamolo and Komorwapus Kamolo. The three were sons of the late Kamolo Porokuo.** **There was sufficient evidence from the objectors indicating that most likely than not, the petitioner is a son of the late Teler Kamolo and therefore brother to the late Ngoriangole Teler, Late Lonyangereng Teler and late Wilson Magal Kinyang among others.** **It was not disputed that the first objector, Chemakwany Chepkerker was married to the late Ngoriangole. It is also not disputed that the second and fifth objectors are children of the first objector with the late Ngoriangole, while the 3rd is the son of Ngoriangole from another woman. and that the fourth objector is son to the late Lonyangereng a brother to the petitioner and the late Kinyang.** **It was accepted by both sides that remarriage and inheritance of a widow by a brother of a deceased person are common practices and customs among members of the Pokot community.** **Therefore, being a brother to the late Ngoriangole, the late deceased could have inherited the first objector together with all her children and dependants. The responsibility that the late Ngoriangole had over the first objector and her issues and/or dependants was transferred to the late Kinyang such that the first objector, her children and all those depending on her became the late Kinyang’s dependants and would therefore be entitled to benefit from his estate.”** In the Ruling of 9/10/2012 the court found that Chemakwany was a wife to the deceased, Wilson Kinyang, having been inherited from his deceased brother Ngoriangole. The court also identified the objectors i.e Chemakwany and others as Wilson Kinyang dependants. The question is whether she is entitled to inherit from the deceased’s Estate? In the case of **Jane Odero Egesa (Supra)** Judge Musyoka considered the concept of widow inheritance when he said at paragraph 12 **“of course, there is a risk of misunderstanding the concept of widow inheritance. It was not about the inheritor taking the widow of his brother, or relative, as his wife. Widow inheritance was not marriage. The woman remained the wife of the dead person, for in African culture, marriage was for life, forever. Marriage was not terminated by the death of the husband. The widow remained as the wife of the departed. Widow inheritance was only meant to help the widow cope with life in the absence of her husband, it was not to make her the wife of the inheritor. She retained the home she shared with her husband, and the inheritor never took over the property. Her children remained the children of her dead husband, they did not become the children of the inheritor. In some cultures, any children begotten by the inheritor and the widow would not be the children of the inheritor, but of the departed husband. Things have changed for the younger generations, but the appellant and her generation, that was the practice.”** Again, Judge Makau in **Re- Estate of Gamaliel Otieno Onyiego** Supra seemed to express the same view that an inherited woman would not inherit from the Estate of the inheritor. The court said at paragraph 25 **“Nevertheless, I am of the view that a customary law which provides that an inherited widow cannot inherit the property especially land of the inheriting man, to be a good law except in a situation where her deceased husband left her no property. That if that position would be allowed o stand without exception, in my view that would be repugnant to the Constitution, justice and morality. I similarly find and hold that any customary law which stipulates that a child of an inherited widow cannot inherit the property especially land of the inheriting man to be a good law except in a situation where the child’s biological father left him no property or land, otherwise such customary law, without exception would in my view be repugnant to the constitution, justice and morality. I find and hold so, as the customary law is clearly concerned about the welfare of the widow and a child as its purpose is to ensure amongst others, that the inherited widow and child are provided for and as at the time it supports the principle against doubt enrichment by the inherited widow and her child, in cases where the wife inheritor had his own legal wife and children”.** In the instant case, it is apparent that Chemakwany (1st Administrator) resides at Lomut which was said to be the late husband’s ancestral home i.e. Ngoriangole. It is not disputed that she inherited land from her deceased husband. PW2 who claimed to be knowledgeable in Pokot customs said that a widow would never leave the deceased’s husband home and the inheritor would visit the lady in that home and that the inherited lady would not inherit from the inheritor. This is the position taken by the court in Re- **Gamaliel Otieno (Supra)** because a widow inheriting from the inheritor would amount to double enrichment by the widow or the child. The above position is however distinguishable from this case because the deceased Wilson Magal, did not have a wife or children. The above decisions did not take into consideration what would happen in a situation where the inheritor had no wife or children Further, I have considered the deceased’s documents held at the police headquarters in his personal file produced as D.Exh.2 (a) – ( e). At DExh. 2b was a letter forwarding a request of change of next of kin DExh.2 (c) written by the deceased Wilson Magal. The next of kin was changed from P. Kemoi whom I believe is the protestor, to Chemakwany Chepkerker named as a wife. It also indicated the deceased’s children to be 1. Joel Teler 2. Nichaolas Kamolo 3. Alex M. Molo 4. Josephine Kamolo In DExh.2(e) the particulars in D.Exh.(c) were captured. PW1 tried to discount the above exhibits by claiming that the said changes of next of kin were effected by DW1 Joel Teler. However, PW1 did not demonstrate how DW1 managed to access the records at Police Headquarters and change the deceased’s next of kin. That allegation was without substance. Although ordinarily a next of kin is not necessarily a person to inherit one’s estate but a person to be contacted in case of emergency. A beneficiary on the other hand is one who is entitled to inherit from a deceased person. In this case, Chemakwany was named as a wife while the others were named as deceased’s children. The protestor also challenged the authenticity of the documents because of the differences in names; that the officer in the records produced in evidence was named as ‘Makal Kalyang’ not Makal Kinyang. The firm of Katina Advocates received a reply to their letter, from the Commissioner of Police office dated 16/3/2012 regarding the dependants’ of Wilson Magal Kinyang. I would not place any emphasis on the spelling of the names because even in this file, I have seen names spelt differently yet they refer to the same name for example Magal or Makal; Pkumon or Pkumun; Loktari or Lokitari; Teler or Terer. The file produced in court belonged to Wilson Magal Kinyang, the deceased in this case notwithstanding the misspelt names. On the issue raised by Counsel that the police file referred to somebody enlisted in the force in 1968 and one of the children was born in 1978, one’s children need not be biological children as is in this case. Section 29 of the Laws of Succession Act identifies who a dependant for purposes of Succession is. The Act provides **“meaning of dependant**” **“For the purposes of this Part, "dependant" means—** **(a)the wife or wives, or former wife or wives, and the children of the deceased whether or not maintained by the deceased immediately prior to his death;** **(b)such of the deceased's parents, step-parents, grandparents, grandchildren, step-children, children whom the deceased had taken into his family as his own, brothers and sisters, and half-brothers and half-sisters, as were being maintained by the deceased immediately prior to his death; and** **(c)where the deceased was a woman, her husband if he was being maintained by her immediately prior to the date of her death.** Chemakwany Chepkerker, as the wife of the deceased and those named as the deceased’s next of kin, are all dependants of the deceased (Wilson Magal) by virtue of the above section. DW1 produced money orders through which the deceased paid his fees (D.Exh.3). PW1 said that the deceased was very generous and even paid fees for his daughter Susan but that does not make her the deceased’s beneficiary. DW1 did admit that indeed the deceased paid fees for many. However, the deceased picked out those named in his personal records held at Police Headquarters in his documents as his dependants. The next question for consideration is how much is each of them entitled to from deceased’s estate? The land parcel No. West/Pokot Keringet A/354 was registered in the joint names of Pkumun Kamolo and Wilson Magal Kinyang. It means that half of the land belongs to the estate of either of them. The land measures 17 Hectares (HA). Seventeen (17) Hectares was estimated to equal to fourty two (42) acres. It follows that twenty-one (21) acres belongs to the estate of Pkumun Kamolo while twenty-one (21) acres belongs to the estate of Wilson Magal. In the Ruling of 9/10/2012 the court had established that the protestor and Wilson Magal had been adopted by their uncle Pkumun Kemolo. It means that both the protestor and estate of Wilson Magal are entitled to Pkumun Kamolo’s share, which would translate in each getting ten and half (10 ½) acres each. It means that the estate of Wilson Kinyang gets about thirty (30) acres from the subject parcel. I agree with the proposed distribution by the petitioner Chemakwany to be the correct one. In his proposed mode of distribution in the submissions the protestor included the name of one Geoffrey Kibor Kamolo whom he said is the son of Samuel Kamolo a nephew to his father whom he had accommodated on the land. No other evidence was led regarding the said Geoffrey being on the land. In my view that was an afterthought and not supported by any evidence but there was no mention of who he is to the deceased’s. As respects the cash in the bank, there has not been any denial by the 2nd Administrator/ Protestor that he has been in occupation and use of Wilson’s Kinyang’s portion of land since his death. That being the case, he has made much more from the land than what is held in the bank. Besides, the money belongs to the Estate of Wilson Magal and not Pkumun and the 2nd Administrator is not entitled. The upshot is that the subject estate is distributed as proposed by the 1st Administrator as follows:- 1. (i) Chemakwany Chepkerker Ngoriangole – 10 acres (ii) William Pkemoi Kamolo - 12 acres (iii) Joel Loktari Teler – 6 acres (iv) Alex Molo – 5 acres (v) Nicholas Kamolo – 5 acres (vi) Josephine Kamolo – 2 acres (vii) Roads Reserve – 1 acre (viii) Professional fees (legal and Survey 2. Money in Absa Bank be paid to 1st Administrator and her children including Alex Madasiwa Molo with 1st Administrator getting one third and the balance be distributed equally amongst Joel Loktari Teler, Alex Molo, Nicholas Kamolo and Josephine Kamolo. 3. Being a family dispute, each party to bear their own costs. **Dated, signed and delivered at Kapenguria this 25th day of May, 2026.** **HON. R. WENDOH – JUDGE.** Judgment read in the presence of Appellant- Respondent- Juma/Hellen-Court Assistants