https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7606

In re Estate of Aggrey Amoyo alias Amoyo Samo (Deceased) (Succession Cause 465 of 2014) [2026] KEHC 7606 (KLR) (18 May 2026) (Judgment) Neutral citation: [2026] KEHC 7606 (KLR) Republic of Kenya In the High Court at Kakamega Succession Cause 465 of 2014 S Mbungi, J May 18, 2026 IN THE MATTER OF THE ESTATE OF AGGREY AMOYO alias AMOYO SAMO (DECEASED) In the matter of Joseph Ingosi Amoyo Petitioner Judgment 1.Before this Court is the Summons for Confirmation of Grant dated 10th November 2025 filed by the Petitioner, Joseph Ingosi Amoyo, seeking confirmation of the Grant of Letters of Administration Intestate issued on 18th October 2022 in respect of the estate of the late Aggrey Amoyo alias Amoyo Samo (Deceased). 2.The deceased died intestate on 7th August 1987. 3.The estate comprises the following assets:A.Land Parcel No. KISA/Emasatsi/523;B.Land Parcel No. KISA/Emasatsi/506. 4.The deceased was survived by the following beneficiaries:i.Daniel Amoyo Lumumba – Deceased;ii.Andrew Shikhule Amoyo – Deceased;iii.Joseph Ingosi Amoyo;iv.Francis Ojenyi Amoyo;v.Omurende James Amoyo;vi.Jacqueline Amoyo; andvii.Dorcas Makokha Amoyo. 5.At the hearing of the Summons for Confirmation of Grant, objection arose regarding the proposed mode of distribution, particularly concerning the entitlement of the widow and children of the late Daniel Amoyo Lumumba (Deceased). 6.The Court directed that the dispute be canvassed by way of written submissions. 7.The Applicant, Bella Mmboga Ebacha, claims to be the widow of the late Daniel Lumumba Amoyo and seeks recognition of her late husband’s entitlement in the estate together with protection from interference by the Respondents. Issues for Determination 8.The issues arising for determination are:i.Whether the late Daniel Lumumba Amoyo was entitled to a share in the estate of the deceased;ii.Whether his widow and children are entitled to inherit his share by representation;iii.Whether the proposed mode of distribution is fair and lawful; andiv.Whether protective orders should issue in favour of the widow and children. Analysis And Determination Whether the late Daniel Lumumba Amoyo was entitled to a share in the estate of the deceased 9.There is no dispute that Daniel Lumumba Amoyo was a son of the deceased herein. 10.Under Part V of the Law of Succession Act, children of a deceased person are beneficiaries entitled to inherit the estate of their deceased parent. Whether his widow and children are entitled to inherit his share by representation; 11.Section 38 of the Law of Succession Act provides that where an intestate has left surviving children but no spouse, the net intestate estate shall devolve equally among the surviving children. 12.Further, Section 41 of the Act recognizes the principle of representation where the children of a deceased beneficiary step into the shoes of their deceased parent and inherit the share that would otherwise have devolved upon that parent. 13.The Court of Appeal in Rono v Rono & Another [2005] eKLR held that although equality does not always mean mathematical precision, equal distribution among children is the general principle unless there exist sufficient circumstances warranting departure therefrom. 14.Similarly, In re Estate of M’Marete M’Mbijiwe (Deceased) [2004] eKLR, the Court emphasized that all children are entitled to equal treatment in distribution unless lawful justification exists for differentiation. 15.In re Estate of Lerionka Ole Ntutu (Deceased) [2019] eKLR, the Court held that widows and children of deceased sons are entitled to benefit from the estate through representation and ought not to be excluded merely because the original beneficiary died before distribution. 16.The evidence before Court demonstrates that the late Daniel Lumumba Amoyo had established his matrimonial home on a portion of the deceased’s land during the lifetime of the deceased. Whether the proposed mode of distribution is fair and lawful; 17.The Court also notes that he was survived by children who remain beneficiaries of his estate. 18.The Court further takes judicial notice of the constitutional protection accorded to children under Article 53 of the Constitution and the right to equality and non-discrimination under Article 27. 19.This Court finds that the fairest, lawful, and most equitable mode of distribution is to distribute the share due to the late Daniel Lumumba Amoyo equally among his six children. 20.The Court notes that distribution according to houses or widows may occasion future disputes and inequality among the children. Equal distribution among the children accords with Section 38 of the Law of Succession Act and the principles set out in Rono v Rono & Another [2005] eKLR. 21.The shares of the minors shall be held in trust by their respective mothers until attainment of majority age. Whether protective orders should issue in favour of the widow and children. 22.The Applicant has alleged eviction, intimidation, and interference by the Respondents. 23.This Court is empowered under Section 47 of the Law of Succession Act and Rule 73 of the Probate and Administration Rules to issue preservatory and protective orders necessary for the ends of justice and protection of beneficiaries. 24.In re Estate of M’Ngarithi M’Miriti (Deceased) [2017] eKLR, the Court held that succession courts possess inherent jurisdiction to preserve estates and protect beneficiaries from unlawful interference pending distribution. 25.Given the circumstances of this case, the Court finds it necessary to issue protective orders to preserve peace and ensure implementation of the confirmed grant. 26.Accordingly, the Court makes the following orders:i.The Grant of Letters of Administration Intestate issued on 18th October 2022 is hereby confirmed.ii.The estate shall be distributed as per the provisions of sections 38 and 40 of the Succession Act. The Deceased was a polygamous man, each deceased child shall have an equal share. The surviving spouse should be handled as a unit.iii.The subdivision shall be done in such a way that no one shall be displaced where he/she has made developments.iv.The children of a deceased beneficiary shall have the share of the deceased, deceased child. 27.The Applicant, Bella Mmboga Ebacha, shall have the right to occupy, utilize, and peacefully enjoy the portion allocated to her minor children together with them pending attainment of majority age. 28.An order is hereby issued restraining the Respondents, their agents, servants, or any other persons acting under their authority from evicting, intimidating, interfering with, or obstructing the Applicant and her children in their occupation and use of the said land. 29.The Officer Commanding Station (OCS) of the area within which the land is situated shall ensure compliance with these orders and maintain peace during implementation of the distribution. 30.Each party shall bear their own costs considering the family nature of the dispute. 35.It is so ordered. 36.Mention on 23rd July, 2026 to confirm transmission. 37.Right of Appeal 30 days explained. DATED, SIGNED AND DELIVERED IN OPEN COURT AT KAKAMEGA THIS 18TH DAY OF MAY, 2026.S.N MBUNGIJUDGEIn the presence of:-CA: Angog’a/VelmaAll parties present.