https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/503

**REPUBLIC OF KENYA** **IN THE CHIEF MAGISTRATES COURT OF KENYA AT MOMBASA** **MAGISTRATES COURT FAMILY** **SUCCESSION CAUSE NO. 44 OF 2017** **(CONSOLIDATED WITH SUCCESSION CAUSE NO. 372 OF 2018)** **IN THE MATTER OF THE ESTATE OF PETER ONYANGO SAMBA (DECEASED)** **RULING** 1. Following the delivery of this Court's ruling on the mode of distribution on 23rd September 2024, the matter was listed before the Court for confirmation of grant and settlement of the Schedule of Distribution. 2. When the matter came up for hearing, Ms. Otuya held brief for Mr. Adhoch for the 1st Respondent, while Mr. Oyas appeared for the 2nd Respondent. 3. The parties informed the Court that although the ruling determined the mode of distribution, they were unable to agree on its implementation, particularly concerning Plot No. MN/II/2500 (Original No. 1873/265 Section II/MN), commonly referred to as the Kiembeni property. Each party consequently presented a different schedule of distribution for adoption by the Court. 4. The Court has considered the previous ruling, the rival affidavits on distribution, the proposed certificates of confirmation of grant and the submissions implicit in the respective schedules. 5. The only issue falling for determination is whether the rival schedules faithfully implement the Court's ruling of 23rd September 2024. Whether the Court may revisit the findings made in the ruling of 23rd September 2024 1. At the outset, it must be stated that the Court is not sitting on appeal over its own judgment. Neither is it called upon to reconsider the merits of the distribution already determined. The function of the Court at this stage is confined to giving effect to the judgment by settling an appropriate Schedule of Distribution that faithfully reflects the findings already made. 2. Accordingly, the Court is bound by the findings contained in its earlier ruling and may only clarify their implementation where ambiguity arises. Findings contained in the ruling of 23rd September 2024 1. The ruling made several express findings which are not open to reconsideration at this stage. 2. Firstly, the Court found that the Kiembeni property was acquired on 7th December 2009 during the subsistence of the marriage between the deceased and the first widow, Elizabeth Susan Lai. 3. Secondly, relying on Sections 6 and 7 of the Matrimonial Property Act, the Court held that the property constituted matrimonial property notwithstanding that it was registered solely in the deceased's name. 4. Thirdly, the Court found that the first widow had contributed towards the acquisition of the property and consequently held a 50% beneficial interest therein. 5. That finding has an important legal consequence. The first widow's beneficial interest ceased to be property available for succession and therefore did not form part of the deceased's free estate capable of distribution under the Law of Succession Act. 6. The Court thereafter proceeded to determine how the deceased's remaining interest ought to be distributed under Section 40 of the Law of Succession Act. 7. Applying Section 40, the Court found that the deceased had two houses consisting of: First House Elizabeth Susan Lai; Dalcie Michelle Aoko; Dante Hannington Lai Samba; and Lukio Gweth Samba. The first house therefore comprised four units. Second House Milkah Nyatichi Getuno; and Lucinda Hope Nyarinda Samba. The second house therefore comprised two units. 1. The Court consequently held that the estate consisted of six units for purposes of distribution under Section 40. 2. Having undertaken that exercise, the Court further observed that the second house had already received 50% of the remaining estate properties, a share exceeding what it would otherwise have been entitled to under Section 40 in respect of the Kiembeni property. 3. The Court therefore expressly concluded as follows: the second house would forgo any entitlement in the Kiembeni property; and that portion would be reserved exclusively for the first widow. 4. Those findings formed part of the dispositive portion of the judgment and are therefore binding upon both the parties and this Court. Rival interpretations 1. The dispute now arises because each party interprets the ruling differently. 2. The 1st Respondent has presented a proposed Certificate of Confirmation of Grant allocating 100% of the Kiembeni property to Elizabeth Susan Lai, while dividing the remaining parcels equally between the two houses. 3. The 2nd Respondent has filed an Affidavit on Mode of Distribution proposing that all the remaining properties, including the Kiembeni property, be distributed equally amongst all beneficiaries, without distinguishing the Kiembeni property from the rest of the estate. 4. With respect, the latter proposal cannot be reconciled with the judgment already delivered. 5. The Court did not merely declare that the first widow held a 50% beneficial interest. Had the ruling ended there, it would still have been necessary to distribute the deceased's remaining 50% share in accordance with Section 40. 6. However, the Court proceeded further and expressly determined that because the second house had already benefited disproportionately from the distribution of the other estate assets, it would relinquish any further entitlement to the Kiembeni property. 7. That conclusion effectively exhausted the issue of distribution of the Kiembeni property. 8. To adopt the 2nd Respondent's proposal would not amount to implementation of the judgment but would instead alter and vary the substance of the judgment itself. 9. The Court therefore finds that the Schedule proposed by the 1st Respondent correctly reflects the findings contained in the ruling delivered on 23rd September 2024. Remaining Estate Properties 1. The evidence before the Court establishes that the remaining immovable properties forming part of the estate comprise: Suna East/Masweta/1911; Suna East/Manyatta/2149; Suna East/Manyatta/2150; and Suna East/Manyatta/2151. 1. Nothing in the ruling disturbed the equal distribution of those properties between the two houses. The only property treated differently was the Kiembeni property because of its matrimonial character and the first widow's established proprietary interest. 2. Accordingly, those remaining properties shall continue to be shared equally between the two houses as previously proposed. Obiter Dictum 1. Before concluding, the Court considers it appropriate to make one observation. In paragraph 11 of the ruling delivered on 23rd September 2024, the Court stated that the second house's entitlement out of the deceased's remaining share of the Kiembeni property would amount to 15%. 2. Strictly speaking, the mathematical computation under Section 40 would produce a slightly different figure. 3. The Court had already found that only the deceased's 50% interest in the Kiembeni property formed part of the distributable estate. Applying the statutory ratio of 2 units out of 6 units, the second house's entitlement would mathematically amount to: 2/6 × 50% = 1/6 of the whole property, equivalent to approximately 16.67%, and not exactly 15%. 1. The Court is, however, satisfied that this computational variance is purely arithmetical and has no bearing whatsoever on the final determination reached in the judgment. 2. This is because the operative finding of the Court was not founded upon the precise numerical percentage but upon the conclusion that the second house had already received a larger share of the remaining estate properties than its entitlement under Section 40 and would therefore relinquish any further claim to the Kiembeni property. 3. Accordingly, the mathematical observation made herein is merely obiter dictum. It neither varies nor amends the judgment delivered on 23rd September 2024, whose operative orders remain binding and fully enforceable. Disposition 1. For the foregoing reasons, the Court settles the Schedule of Distribution as follows: **Property** **Distribution** Plot No. MN/II/2500 (Original No. 1873/265 Section II/MN) Elizabeth Susan Lai – 100% Suna East/Masweta/1911 First House – 50%; Second House – 50% Suna East/Manyatta/2149 First House – 50%; Second House – 50% Suna East/Manyatta/2150 First House – 50%; Second House – 50% Suna East/Manyatta/2151 First House – 50%; Second House – 50% For purposes of this Schedule: First House Elizabeth Susan Lai Dalcie Michelle Aoko Dante Hannington Lai Samba Lukio Gweth Samba Second House Milkah Nyatichi Getuno Lucinda Hope Nyarinda Samba **Final Orders** 1. The Court finds that the ruling delivered on 23rd September 2024 conclusively determined the mode of distribution of Plot No. MN/II/2500 (Original No. 1873/265 Section II/MN). 2. The Schedule of Distribution proposed by the 1st Respondent accords with and faithfully implements the ruling of this Court. 3. Plot No. MN/II/2500 (Original No. 1873/265 Section II/MN) shall vest wholly in Elizabeth Susan Lai. 4. The remaining estate properties, namely: Suna East/Masweta/1911; Suna East/Manyatta/2149; Suna East/Manyatta/2150; and Suna East/Manyatta/2151, shall each be distributed equally between the two houses, with each house taking a 50% share, to be held by the members of that house in accordance with the certificate of confirmation of grant. 1. The Certificate of Confirmation of Grant shall issue in accordance with the foregoing Schedule of Distribution. 2. As this application arose from differing interpretations of the Court's earlier ruling rather than any misconduct by either party, **each party shall bear its own costs.** Orders accordingly. **DATED, SIGNED AND DELIVERED ONLINE VIA MICROSOFT TEAMS AT MOMBASA THIS 30TH JULY 2026.** ............................................ **EMILY M. MWAMUYE** **SENIOR RESIDENT MAGISTRATE**