https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12695

**REPUBLIC OF KENYA** **IN THE HIGH COURT AT ELDORET** **SUCCESSION CAUSE NO. E124 OF 2025** **IN THE MATTER OF THE ESTATE OF KIMUTAI LAGAT (DECEASED)** **Coram: Before Justice R. Nyakundi** **Bundotich Korir & Co. Advocates** **Cheboson Bett & Co. Advocates** **JUDGMENT** 1. Before this Court is summons dated 26th day of August 2025, which the Applicant seeks the following orders: 2. *THAT the grant issued on 24th/6/2025 be confirmed and the estate be distributed notwithstanding the fact that 6 months have not lapsed.* 3. *THAT the grant issued to DANIEL KIMTAI on 24th/6/2025 be confirmed and the estate be confirmed and the estate comprising of land parcel No. UASIN GISHU/KAPTAGAT/192 be distributed equally among 19 beneficiaries.* 4. In support of the application is the sworn affidavit of DANIEL KIMTAI stated as follows: 5. *THAT I am a male adult of sound mind and the administrator of the estate of Kimutai Lagat hence competent to swear this affidavit.* 6. *THAT the Court issued a grant in my favour on 24th/6/2025 where I was appointed administrator of the estate.* 7. *THAT among beneficiaries of the estate is our mother who is very old now aged over 80 years* 8. *THAT considering her age our mother wishes to have the estate confirmed so as she would know her share and be able to utilise the same in terms of her upkeep considering that she is in her sunset years. (Annexed is the affidavit of the said SUSAN KIMOI KIMUTAI* 9. *THAT it would serve the ends of justice that the grant be confirmed and the estate distributed notwithstanding six months having not lapsed in view of the reasons herein above stated* 10. In support of the application is the further affidavit of the applicant who seeks the following orders: 11. *THAT I am the administrator herein hence competent to swear this affidavit.* 12. *THAT further to mode of distribution in support of summons for confirmation of grant I further wish to propose that the estate be distribution in accordance with deceased’s wishes as follows;* 1. *WILLIAM KIPCHUMBA KIMUTAI................4 ACRES.* 2. *NICKSON KIMAIYO KIMUTAI..................4 ACRES.* 3. *KENNET KIMELI KIMUTAI.................4 ACRES.* 4. *CHRISTOPHER MUTAI.....................4 ACRES.* 5. *SUSAN KIMOI...........................5 ACRES.* 6. *DANIEL KIMUTAI ..........................4 ACRES.* 7. *MARGARET JEPKOSGEI CHANGWONY.................5 ACRES.* 8. *EMMANUEL KIPRUTO KIMUTAI..............7 ACRES.* 9. *ISACK KIPTOO KIMUTAI.................................7 ACRES.* 10. *TITUS KIMUTAI...................................1 ACRE.* 13. *THAT I therefore pray that the estate be distributed as set out herein above.* 14. In response to the application is the Affidavit of Protest to Confirmation of Grant, expressed to brought under Rule 40(6) of the Probate and Administration Rules. The Protestor seeks the following orders: 15. *THAT I am the son of KIMUTAI LAGAT (deceased) hence competent to make and swear this Affidavit.* 16. *THAT I have the Authority of NORAH JERUIYOT KIPRONO, ELIZABETH JELIMO CHEBII, EMMANUEL KIPRUTO KIMUTAI, PURITY JEROP MUTAI, LYDIAH JEMAIYO KIMUTAI and NELLY JEPKOECH KIMUTAI and authorized to swear this Affidavit. See copy of the Authority Marked annexure IKK - A.* 17. *THAT I make protest to the protest against the Summons for Confirmation of Grant of Letters of Administration made to DANIEL KIMUTAI in this matter on the 26.08.2025 and Supported by the Supporting Affidavit dated 17.02.2026 on my behalf and that of the 1st House which Application shall prejudice the 1st House heirs and disinherit a large proportion of the family and bequeath property upon the 2nd House to the detriment of the 1st House and more specifically the children of the 1st House.* 18. *THAT the following beneficiaries were left behind and are entitled.* *1ST HOUSE.* 1. *MARGARET JEPKOSGEI CHANGWONY - DAUGHTER* 2. *ELIZABETH JELIMO KIMUTAI - DAUGHTER* 3. *TITO KIPNGETICH KIMUTAI - GRANDSON* 4. *NORAH JERUIYOT KIMUTAI - DAUGHTER* 5. *ISAAC KIPTOO KIMUTAI - SON* 6. *LYDIA JEMAIYO KIMUTAI - DAUGHTER* 7. *PURITY JEROP KIMUTAI - DAUGHTER* 8. *EMMANUAL KIPRUTO KIMUTAI - SON* 9. *NELLY JEPKOECH KIMUTAI - DAUGHTER* *2ND HOUSE.* * 1. *SUSAN KIMOI KIMUTAI - WIDOW* 2. *WILLIAM KIPCHUMBA KIMUTAI - SON* 3. *ANNE JEPKORIR KIMUTAI - DAUGHTER* 4. *GRACE JEPCHIRCHIR KIMUTAI - DAUGHTER.* 5. *LILY JEROTICH KIMUTAI - DAUGHTER.* 6. *DANIEL KIMUTAI - SON.* 7. *CHRISTOPHER KIMUTAI - SON.* 8. *KENNETH KIMELI KIMUTAI - SON* 9. *SHEILA JEBIWOTT KIMUTAI - DAUGHTER.* 10. *NICKSON KIMAIYO KIMUTAI - SON* 1. *THAT the deceased left behind the following assets:- (a) UASIN GISHU/KAPTAGAT/192.* 2. *THAT I’m informed by my Advocate which advice is very true that Section 45 provides as follows: 45 (1) Except so far as expressly authorized by this Act, or by any other written law, or by a grant of representation under this Act, no person shall, for any purpose, take possession of or dispose of, or otherwise intermeddle with, any free property of a deceased person. (2) Any person who contravenes the provisions of this section shall— a. be guilty of an offence and liable to a fine not exceeding ten thousand shillings or to a term of imprisonment not exceeding one year or to both such fine and imprisonment; and b. be answerable to the rightful executor or administrator, to the extent of the assets with which he has intermeddled after deducting any payments made in the due course of administration.* 3. *THAT I’m informed by my Advocate which advice is very true that Section 82(ii) of the Law of Succession Act provides that: (ii) no immovable property shall be sold before confirmation of the grant;* 4. *THAT UASIN GISHU/KAPTAGAT/192 is available for distribution to the direct beneficiaries of the deceased herein our late father in line with Section 40(1) of the Law of Succession.* 5. *THAT I’m informed by my Advocate which advice is very true that in a scenario such as this one, the law applicable in the circumstances is Section 40(1) of the Law of Succession which provides: “where an intestate has married more than once under any system of law permitting polygamy, his personal and household effects and the residue of the net intestate estate shall, in the first instance, be divided among the houses according to the number of children in each house, but also adding any wife surviving him as an additional unit to the number of children.* 6. *THAT I’m informed by my Advocate which advice is very true that Section 38 of the Law of Succession enshrines the principle of equal distribution of the net intestate estate to the surviving children of the deceased irrespective of gender and whether married and comfortable in their marriage or unmarried.* 7. *THAT all the beneficiaries of the deceased herein KIMUTAI LAGAT should be treated equally in the sharing of his Estate.* 8. *THAT the estate be subdivided in line with the provisions of Section 40(1) of the Law of Succession as all the beneficiaries are adults.* 9. *THAT it our wish and view as the 1st House that the deceased UASIN GISHU/KAPTAGAT/192 be distributed as follows:* | | | | --- | --- | | **SCHEDULE** | **SHARES IN ACRES** | | **1st house** | | | *MARGARET JEPKOSGEI CHANGWONY* | 5 | | *EMMANUAL KIPRUTO KIMUTAI* | 7 | | *ISAAC KIPTOO KIMUTAI* | 9.5 | | *TITO KIPNGETICH KIMUTAI* | 1 | | **2nd house** | | | *SUSAN KIMOI KIMUTAI - WIDOW* | 2.5 | | *WILLIAM KIPCHUMBA KIMUTAI* | 4 | | *NICKSON KIMAIYO KIMUTAI* | 4 | | *KENNETH KIMELI KIMUTAI* | 4 | | *CHRISTOPHER KIMUTAI* | 4 | | *DANIEL KIMUTAI* | 4 | 1. *THAT all the beneficiaries of the deceased should be treated equally.* 2. *THAT from the foregoing, the grounds or protest are: - (a). There is inequality in the distribution of our late father's Estate.* 3. *THAT in the circumstances the 1st House is not agreeable to the confirmation as it is an imperative that: - (a) We be heard on proper distribution of our late father’s Estate as provided by the law of Succession.* 4. *THAT in the circumstances it is just, fair and expedient that this protest be heard.* **Decision** 1. This is a polygamous family from the evidence shared with the Court and therefore distribution is governed under Section 40 of the Law of Succession Act. In Kenya a polygamist’s estate is distributed among the different houses (family units) based on the number of children in each house, with each surviving widow counted as an additional unit alongside her children. This statutory formula prevents direct equality between wives. Instead, it creates a fractional distribution based strictly on the headcount of children and surviving wives in each house. The Courts have consistently interpreted and applied Section 40 of the Act as demonstrated herein below: * *Rono v. Rono [2005] 1 EA 263: The Court of Appeal set a major precedent by emphasizing that while Section 40 provides a mathematical formula based on the number of children and surviving widows, Courts must consider fairness and the varying needs of dependants, which provides some discretion in the ultimate division of the estate.* * *In Re Estate of Joel Mulove Wambua [2018] KEHC 6088: The High Court affirmed that assets of an intestate polygamist must be shared strictly according to the "house" system—counting each child and adding the surviving spouse as an additional share without discriminating between male and female children.* * *Koech & Another v. Chemutai & 2 Others (Civil Appeal 438 of 2022): The Court of Appeal upheld the unit-based model, distributing the estate across units that combined all the children of the respective wives alongside the surviving widows as additional units, rather than dividing the property evenly among the wives* * *Ramaita v. Ramaita [2025] eKLR: The High Court (and subsequently the Court of Appeal) reaffirmed the Section 40 formula, reinforcing that an estate must be apportioned according to the respective units in each house.* The Courts have come up with some formulae as a guideline in the scheme of distribution in a polygamist family: House A widow and 3 children (Total= 3+1= 4 units) House B has a widow and 4 children (Total= 4+1= 5 units) Total estate units 4+5= 9 units Following the Section 40 Rule, House A receives 4/9 of the total, and House B receives 5/9 of the total estate. The property within each respective house is then shared equally among the dependants in that specific house. 1. It is trite that polygamy is best described as the practice of a man having more than one wife at a time has long been practiced in Kenya, especially under customary and Islamic marriage settings. The Marriage Act 2014 recognizes customary marriages as being potentially polygamous, and post-2017, the law now requires one to register their customary marriage. While intestate proceedings of a monogamous deceased can be straightforward, intestate proceedings where the deceased was in a polygamous union has specific factors that need to be considered in administration of the estate. Such factors include, the number of years each spouse was married, the number of children, property acquired through joint contribution (equal or not) and sometimes property shared out during the life of the deceased. In this article, we will discuss the Court’s approach to determining the mode of distribution of estates with polygamous families. 2. This is an intestacy succession and therefore some of the key parameters applied must answer the question as to whether the phrase that the division of the assets of the houses is automatic based on the numbers of children begotten in each house. While the word of the law is that division of such property is based on the number of persons per house, e.g. House A has 7, House B has 9, House C has 2, the Courts have severally held that there are other factors that are to be considered when making such distribution, so that justice is not only deemed to be done but also, seen to be done. I think for me this may be the reason why the Court of Appeal in the case of *Scholastic Ngululu Sura v Agnes Nthenya Sura [2019] eKLR* in which the Court remarked as follows: *“…although Section 40 of the Law of Succession Act provides a general provision for the distribution of the estate of a polygamous deceased person, the Court has the discretion to take into account factual circumstances of the particular case that may be relevant in ensuring equitable and fair distribution of the estate.”* 1. This was also the interpretation of Section 40 by the Court in the case of *re estate of Joseph Eric Owino (deceased) [2022] eKLR* the Court held as follows: *“…for purposes of succession, all children in spite of the marriages status of their parents are entitled to an inheritance. The aforementioned statement refers to children who fall within the parameters of Section 3(2) of the Law of Succession Act.”* 1. It should be remembered that it is settled law that in succession matters equity is not necessarily equality. That is the very reason why the Court in the matter of the estate of *Benson Ndirangu Mathenge (deceased) Nakuru HCSC No. 231 of 1998* (Ondeyo J), *the deceased was survived by his two widows and their children. The first widow had four children, while the second widow had six children. The Court stated that the first house was comprised of five units while second had seven units. The two houses of the deceased combined and looked at in terms of units made up twelve units. The Court distributed the estate to the children and the widows treating each as a unit. The land available for distribution was forty acres, which was divided by the Court into twelve units. Out of the twelve units, five were given to the first widow and her four children, while the remaining seven units went to the second widow and her six children.* 2. In the instance case the proposed model by Isaac Kiptoo Kimtai provides for 10 beneficiaries constituting the following: | | | | --- | --- | | **SCHEDULE** | **SHARES IN ACRES** | | **1st house** | | | *MARGARET JEPKOSGEI CHANGWONY* | 5 | | *EMMANUAL KIPRUTO KIMUTAI* | 7 | | *ISAAC KIPTOO KIMUTAI* | 9.5 | | *TITO KIPNGETICH KIMUTAI* | 1 | | **2nd house** | | | *SUSAN KIMOI KIMUTAI - WIDOW* | 2.5 | | *WILLIAM KIPCHUMBA KIMUTAI* | 4 | | *NICKSON KIMAIYO KIMUTAI* | 4 | | *KENNETH KIMELI KIMUTAI* | 4 | | *CHRISTOPHER KIMUTAI* | 4 | | *DANIEL KIMUTAI* | 4 | 1. Whereas in paragraph 4 of his affidavit he also indicated that some of the beneficiaries have not been provided for and there is no affidavit to renounce their rights to inheritance to the estate of the deceased. In espousing the provision of Section 40 of the law of Succession Act and the Constitutional values of equality, inclusivity, diversity, remain the touchstone for purposes of intestate succession. The right to own and inherit property in Kenya traverses the realms of civil, cultural, political, economic and social rights. It is viewed and rightly so as the core of empowerment of each member of our society and communities and also key to the wealth generation at an individual or collective level of our indigenous society. Therefore, there is an area where human right is infringed and violated is in the arena of succession disputes. As a result, I consider the inheritance or non-inheritance of assets survive of the deceased to be integrally linked to family members poverty trajectory or members of that lineage and their likelihood in remaining in or moving out of the chronic poverty which is one of the covenant in our national anthem in attending independence that the Republic committed itself that plenty be found within our borders. It is implicitly that where income is highly dependent on cultivation of land or livestock keeping and other means of production the beneficiaries or heirs to an estate to the parents who are poor will continue promoting poverty unless their intergenerational inheritance from their forefathers. The importance of securing inheritance rights for women is recognize in our Constitutional imperative under Art 27 of our Constitution as well as in international legal instruments in the context of both development and equality clauses. 2. In our legal system the extension between the status of customary law and the provisions of the Constitution. It is unfortunate that customary law in Kenya remains unwritten with no legislation or codification of the elements or basic structure of customary laws and rules from which repugnant clauses which are inconsistence with the Constitution can be manifested. Whereas customary law is part of our sources of law and is seen through the lens of common law and Constitutional lens, it can only be interpreted and construed by Courts in the form of a legislation or statutory framework because it seen as integral part of our law. Given our Constitutional imperative 2010, it is validity must now be determined with reference to our Constitution. There is no doubt that in Kenya customary law is lamentably marginalized including in succession matters and allowed to degenerate into a vitrified set of norms alienated from its roots in the community. The positive aspect of customary law has long been neglected and the excellent opportunities for jurisprudential growth seems to be lost and its valuable aspects within the context of the Constitution. 3. The persuasive decision in the case of *S v Manamela & Another 2000 (3) SA 1(CC); 2000 (5) BCLR 491 (CC)* sets the tone in which judicial discretion can be exercised with regard to competing interest and right within the family setup survived of the deceased. Thus: *“. . . [t]he Court must engage in a balancing exercise and arrive at a global judgment on proportionality . . . . As a general rule, the more serious the impact of the measure on the right, the more persuasive or compelling the justification must be. Ultimately, the question is one of degree to be assessed in the concrete legislative and social setting of the measure, paying due regard to the means which are realistically available in our country at this stage, but without losing sight of the ultimate values to be protected.”* 1. The importance of customary law in succession cannot be underestimated particularly in relation to the kind of society we have lived in since the proclamation of Kenya as a state. Before the declaration of a protectorate, the rules of customary did not operate in isolation and continued to be part of a way of life and resolution of disputes within our multination or multiethnic society. I presume that the system had its own safeguards on matters of administration of justice to ensure fairness, equality, and justice in the context of rights, duty and responsibilities. I do not think their succession dispute with antagonistic and tension between family members as recognized in the modern Kenya Constitutionally governed with a transformative Constitution 2010. History tells us that their heirs to the intestate estate did not merely succeed to the assets of the deceased and the distribution of shares of the net estate survived of the deceased was not fundamentally concerned with the distribution of the estate to each member of the family but it was more about with the preservation and perpetuate of the nuclear family and it was intergenerational. The administration of the justice is administered as a whole and leadership from the head of family devolves among the children to continue in the maintenance and support of property rights acquired by the deceased. It is time we found ways and means of giving space to customary law which shall be infused within the context and text of our Constitutional framework within the provision of Articles 10, 24, 27, 28 and construed with Article 40 of the Constitution. 2. I must acknowledge that the stereotype of exclusion of women from inheritance on grounds of gender, birth, or marital status under customary law remained and has remain a clear violation of Art 27(4) of the Constitution. The Kenyan people even before the 2010 Constitution through their levels of Courts ruled it be a form of discrimination that entrenches historical patterns of disadvantage among the women, girls and daughters based on the notion of patriarchal society. 3. I have reviewed the evidence ion the proposed model of distribution as governed by Section 40 of the Law of Succession Act central to my consideration is the interest of justice in this particular case to afford all the beneficiaries in the same situation equitably distribution of the net estate of the deceased. What needs to be determined is the nature and form of the wider relieve pursuant to the provision of Section 40 of the Law of Succession Act to the extent to its consistency with Article 27(4) of the Constitution. That issue where women were always regarded as persons who would eventually live their parents’ home on marriage how the payment of dowry or not to join the family of their new found husbands was the very reason they were regarded not to be considered as beneficiaries to the estate of their heritage family of their parents. In the African customary law, it was considered their rights of inheritance would be in the new family and not the original family of their parents. That remains to be the legal contestation in Kenya in our society that women should not generally comeback to the original parents’ home to seek a share of the inheritance. Whether this Constitution 2010 would completely resolved this legal tension in the near future comprehensively to me remains doubtful given that the male descendants continue to pose a Constitution challenge on this area of law. 4. In the circumstance of this case, it would suffice for this Court exercise judicial discretion and have the net estate shared equitably amongst the 19 members of the two household each defined as a unit. It should also be borne in mind that the intestate succession does not preclude and estate devolving with an accordance with the agreement to consent reached among all the beneficiaries but in a way which is consistent with Section 35, 36, 37, 39 & 40 of the Act. 5. It is settled law that distribution of intestate estate in a polygamous family is governed by the Succession Act and foundational judicial precedence from the High Court and the Court of Appeal that address the rights of multiple wives or houses and children. In the first instance from the letter and the spirit of the law, in a polygamous estate the rights of widows to inherit are protected by the Constitution, the Law of Succession and even clauses of customary law. The surviving widows are generally considered as senior ranking members of the lineage or heritage of the deceased. It is my view that Section 40 of the Law of Succession Act should be interpreted and construed in a manner where the spouses share is designated portion of the estate. Without necessarily invoking the provisions of the Matrimonial Property Act. The Matrimonial Property Act by its preamble and objectives deals with living persons whereas the Law of Succession Act is about the estate of the deceased. The express provision of the Act which are applicable in matrimonial asset division on divorce include inter alia Sections 2, 6, 7 & 8 of the Act: 2. *In this Act, unless the context otherwise requires— "contribution" means monetary and non-monetary contribution and includes—* * 1. *domestic work and management of the matrimonial home;* 2. *child care;* 3. *companionship;* 4. *management of family business or property; and* 5. *farm work; "family business" means any business which—* 6. *is run for the benefit of the family by both spouses or either spouse; and* 7. *generates income or other resources wholly or part of which are for the benefit of the family; "matrimonial home" means any property that is owned or leased by one or both spouses and occupied or utilized by the spouses as their family home, and includes any other attached property; "matrimonial property" has the meaning assigned to it in section 6; "spouse" means a husband or a wife.* *6. (1) For the purposes of this Act, matrimonial property means—* 1. *the matrimonial home or homes;* 2. *household goods and effects in the matrimonial home or homes; or* 3. *any other immovable and movable property jointly owned and acquired during the subsistence of the marriage.* *(2) Despite subsection (1), trust property, including property held in trust under customary law, does not form part of matrimonial property. (3) Despite subsection (1), the parties to an intended marriage may enter into an agreement before their marriage to determine their property rights. (4) A party to an agreement made under subsection (3) may apply to the Court to set aside the agreement and the Court may set aside the agreement if it determines that the agreement was influenced by fraud, coercion or is manifestly unjust.* *7. Ownership of matrimonial property Subject to section 6(3), ownership of matrimonial property vests in the spouses according to the contribution of either spouse towards its acquisition, and shall be divided between the spouses if they divorce or their marriage is otherwise dissolved.* *8. Property rights in polygamous marriages* * + 1. *If the parties in a polygamous marriage divorce or a polygamous marriage is otherwise dissolved, the—* 1. *matrimonial property acquired by the man and the first wife shall be retained equally by the man and the first wife only, if the property was acquired before the man married another wife; and* 2. *(b) matrimonial property acquired by the man after the man marries another wife shall be regarded as owned by the man and the wives taking into account any contributions made by the man and each of the wives.* * 1. *Despite subsection (1)(b), where it is clear by agreement of the parties that a wife shall have her matrimonial property with the husband separate from that of the other wives, then any such wife shall own that matrimonial property equally with the husband without the participation of the other wife or wives.* 3. Although the strands, needs and sharing are familiar with the Law of Succession Act, the relation between the two has not been made clear by the legislature and the parameters are kind of different in law. First there is evidence of significant differences in the levels of the measure of distribution likely to be awarded in different Courts under the Matrimonial Property Act. This is not so much about the distribution of an intestate estate under Sections 35, 36, 37, 38, 39, & 40 of the Law of Succession Act. 4. In the instant case that is not the predominant battle ground as between the 1st and 2nd House. The impression I have, is about the entitlement and the position taken by the parties with regard to the doctrine of sharing of the property equally. I have reviewed the two proposals both by the mover of the summons for confirmation of grant of letters of administration and the Protestor. There is always a complexed of appreciation as to the legal meaning of equal and equitable shares in the distribution of an intestate estate. Intestate succession equal shares mean a strict mathematical or numerical division among beneficiaries, while equitable shares mean a fair and just distribution that considers practical realities, economic values and specific family dynamics. The law is somehow settled in this areas as reflected in the following cases: * *Strict Mathematical Equality vs. Practical Reality: In cases like*In re Estate of Sawe Maina [2023]*, Courts note that achieving an exact numerical "equal" split of physical assets (like land parcels of varying sizes and economic values) is often impossible, meaning distribution must be tailored to be "equitable" or fair* * *Polygamous Estates (House Units): Under Section 40 of the Law of Succession Acts, distribution is computed by house units, but Courts must balance equal treatment of households with equitable adjustments for specific assets or prior benefits (*Rono v. Rono [2005]*and*Ramaita v. Ramaita [2025]*).* * *Non-Discrimination: Constitutional provisions on equality (Article 27 and Article 45) mandate that children and spouses inherit equally regardless of gender, overriding discriminatory customs that try to award unequal or inequitable portions based on sex (*Mary Rono v. Jane Rono*).* * *require equal division among children or distinct households.* * *Equitable Adjustments: Judicial discretion permits adjusting strict mathematical equality to achieve fairness based on dependency or the number of units in polygamous houses.* 1. I see many of the problems involved in the law of descent and distribution of property as among the most difficult problems of legal science and the exercise of judicial discretion to draw a line between the doctrine of equality and that of equitable distribution matrix. There are two general modes of acquiring title to real property, namely, by descent and by purchase. The law defines descent as follows: descent or hereditary succession is the title whereby a man on the death of his ancestor requires his/her estate by right of representation, as his/her heir at law. An heir, is therefore, is he/she upon whom the law casts the estate immediately on the death of the ancestor; and an estate so descending to the heir is in law called the inheritance. The word distribution refers ordinarily to personal property. It is defined in law as the division by order of. The Court having authority, among those entitled thereto, of the residue of the personal estate of an intestate after payment of the debts and charges. Succession by law is the title by which a man, on the death of his ancestor, dying intestate, acquires his estate, whether real or personal, by the right of representation as his next heir. Succession is, therefore, a broader term than descent, as it applies to personal as well as real property. 2. The law of Succession Act of Kenya involves the inquiry as to who are the beneficiaries of an intestate estate on whom the estate shall devolved. The applicable provision under the Act is Section 29 and the extent of the beneficiaries may be lineal descendants such as biological children, grandchildren, or great grandchildren or on the other hand there may be lineal ascendants such as parents, grandparents, or collateral kindred such as brothers, sisters, cousins, aunts, nephews and uncles. The scheme of distribution in Kenya does not stop there it involves the inquiry as to the persons capable of inheriting such as aliens, bastards, children born out of wedlock or extramarital relationships and posthumous children. 3. In computing the degree of relationship of this intestate estate there is one widow and 18 children survived of the deceased as at the time of this conformation. The scheme therefore of succession to this intestate estate, it is in the order to the proximity to the dead man now referred to as in the matter of the estate of the late Kimutai Lagat. The degree of relationship is therefore not in doubt. The right to inherit property by the named beneficiaries or to succeed to the aforesaid intestate estate is a mere creature of the law, a civil right and not a natural right. It is therefore my consider view that each beneficiary or heir to the estate shall be considered as a unit and entitled to inherit the shares of the intestate estate in equitable shares in consonant with Section 40 of the Act as read with Article 27 (1)(4) of the Constitution. Generally, it was noticed that the matrix of distribution shared with Court had left out some of the beneficiaries with legitimate rights of inheritance and therefor giving rise to legitimate expectation that they shall not be discriminated against which would be a violation of Section 38, 40 of the Law of Succession Act as toned with Article 27(4) of the Constitution. For avoidance of doubt the more nuanced doctrine applicable to this estate is that the shares of the residual estate of the deceased shall be divided equally between them. As a consequence of which the Deputy Registrar shall extract a scheme of distribution based on the entitlement of distributive shares on account of equal basis. The costs of this judgment shall be in the cause. 4. Orders accordingly. **DATED, SIGNED AND DELIVERED AT ELDORET THIS 6TH DAY OF AUGUST 2026.** **..............................................** **R. NYAKUNDI** **JUDGE**