https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9689

**REPUBLIC OF KENYA** **IN THE HIGH COURT AT ELDORET** **SUCCESSION CAUSE NO. 184 OF 2002** **IN THE MATTER OF THE ESTATE OF THE LATE CHEPKEITANY CHESAIRE** **(DECEASED)** **CHRISTINA KABON NEETICH………….……………1ST OBJECTOR/APPLICANT** **EVERLYNE JEPCHIRCHIR KEITANY………………2ND OBJECTOR/APPLICANT** **NANCY JERONO KEITANY………………………..….3RD OBJECTOR/APPLICANT** **VERSUS** **EDWIN KIPKEMBOI NGETICH………..……………..4TH OBJECTOR/APPLICANT** **Coram: Before Justice R. Nyakundi** **M/s Chebii & Co. Advocates** **M/s Kibii & Co. Advocates** **RULING** 1. *Before this Court is a proposed mode of distribution dated 26th day of January 2026 as herein under:* | | | | | --- | --- | --- | | ***Property*** | ***Size*** | ***Beneficiary*** | | *Uasin Gishu/Kaptagat/89 measuring 24 acres* | *12 acres* | *1st House* | | *2 acres* *1 acre* *1acre* *2 acres* *2 acres* *2 acres* *2 acres* | *2nd House* | | *Christina Kabon Ngetich* | | *Nancy Jerono Keitany* | | *Everlyne Jepchirchir Keitany* | | *Barnabas Kiprop Ngetich* | | *Edwin Kipkemoi Ngetich* | | *Samuel Kipkogei Ngetich* | | *David Kiptoo Keitany* | **Decision** 1. This Court on 4th August 2025 ruled as follows: 2. *In my view, the raison d'etre of revoking letters of administration is to ensure proper administration of the estate, and to protect the interest of the beneficiaries, which is paramount. In the present matter the applicant has shown sufficient cause while the administrators proceeded at the initial level at the time of sharing out the estate her name was left out without any sufficient reasons as required by law. Furthermore, given that the applicant is a daughter to the deceased and having not rescinded her right to inheritance, the omission is in contravention of sections 35,36,37,38,40,41 & 42 of the Law of Succession Act as construed with Art 27 (4) of the constitution. Before I take leave of this matter, I take judicial notice that the estate has not been distributed as early ordered on 10th July 2024 and on that strength the prejudice and injustice is minimal to the legitimate expectations of the listed beneficiaries. The administrators are advised to file an amended distribution matrix within 21 days from today's date to correct the patent defect envisioned in the law. The status conference to be held on 16th September 2025 as to no order to costs.* 3. In this estate it was established by this Court that the deceased further survived was by the following beneficiaries: ***1st House*** * *Kimoi Tapkigen Chepkeitany-widow (deceased)* * *Mary Chepkemoi Keitany-daughter* * *Eunice Jerop Keitany-daughter (deceased)* * *Sally Jemaiyo Keitany-daughter* ***2nd House*** * *Kong'ato Tabyaby-widow (deceased)* * *Joseph Kipngetich Keitany-son (deceased)* 1. The distribution of this estate is to be governed by Section 40 of the Law of Succession Act. In Kenya an estate of this nature is to be divided among houses according to the number of children in each house with surviving widows added as additional unit to their respective houses. However, Courts have repeatedly ruled that this Section is not a magic pill and empowers Judges and Magistrates to make equitable and not merely mathematically equal distribution. The key principles on application of Section 40 are found the fowling cases: * ***The Polygamous House Unit Rule:****In In Re Estate of Michael George Tendwa Said [2020] eKLR, Courts confirmed that where a man dies without a will and was polygamous, the estate is divided among the surviving houses using a ratio based on n children + 1 widow per house* * ***Discretion for Equity:****The foundational Court of Appeal case of Mary Rono vs Jane Rono & Another [2005] eKLR established that Section 40 must be interpreted equitably rather than mechanically. Judges have the discretion to factor in the varying maintenance, schooling needs, or existing financial independence of the children to prevent gross injustices.* * ***The "One Wife, No Children" Scenario:****In cases where a widow has no children, the Courts treat her as a single unit, as highlighted in succession frameworks outlined by KM Law Chambers* * ***Property Values vs Equal Distribution:****In re Estate of Sawe Maina (Succession Cause 350 of 2015), the Court ruled that determining "equal" shares with mathematical precision is sometimes impossible due to different economic and physical sizes of estate properties; in such instances, fairness must prevail* Similarly, in the ***re Estate of John Musambayi Katumanga – (Deceased) [2014] eKLR***Musyoka J. stated asfollows*;* *“Section 40 was not designed for the circumstances of the instant estate, but it would appear more appealing for the purpose of the distribution of the said estate than Section 35. The spirit of Part V, especially Sections 35, 38, and 40, is equal distribution of the intestate estate amongst the children of the deceased. There have been debates on whether the distribution should be equal or equitable. My reading of these provisions is that they envisage equal distribution for the word used in Sections 35 (5) and 38 is “equally” as opposed to “equitably”. This is the plain language of the provisions. The provisions are in mandatory terms – the property “shall … be equally divided among the surviving children.” Equal distribution is envisaged regardless of the ages, gender, and financial status of the children.”* 1. In addition, the Court in **re Estate of Kamau Rungathu** **(Deceased) [2022] KEHC 14417 (KLR)** Court further delved further into the interpretation of Section 40 and its application to the distribution of the intestate of the decease and the following observation were made: *“50. The literal interpretation of the above provision is that the estate is first distributed among the houses, depending on the number of children in each house, with any surviving spouse being an additional unit. Thereafter, the assets allocated to each house are distributed within the house in accordance with sections 35 to 38 of the Law of Succession.* *51. The Courts have, however, cautioned against the uniform application of Section 40. In Scolastica Ndululu Suva v Agnes Nthenya Suva [2019] eKLR, the Court of Appeal recommended a case-to-case application of Section 40 of Law of Succession provides a general provision for the distribution of the estate of a polygamous deceased person, the Court has discretion to take into account the factual circumstances of the particular case that may be relevant in ensuring equitable and fair distribution of the estate.* *52. The Court of Appeal further observed in Jane Nyambura Ndungu v Beatrice Wangari Ndungu & 2 Others [2021] eKLR: “Section 40 of the Law of Succession is not a magic pill that can be applied to resolve all issues pertaining to the distribution of a deceased person’s estate. In as much as section 40 LSA talks of “Equal Shares,” the distribution must also be equitable.”* *53. The common thread from the above case law is that Section 40 of the Law of Succession is meant to ensure the equitable distribution of the estate and not necessarily the equal distribution. In arriving at the mode of distribution, the Court is to be guided by the facts of each case, including the circumstances of the beneficiaries at the time of distribution.”* 1. In the instant case the record reveals that the two widows have now since passed on including the children of that lineage namely Eunice Jerop Keitany and Joseph Kipngetich Keitany. It follows that the distribution of this estate shall be in consonant with Section 38 of the Law of Succession Act which provides as follows: *Where an intestate has left a surviving child or children but no spouse, the net intestate estate shall, subject to the provisions of Sections 42 and 42, devolve upon the surviving child, if there be only one, or shall be equally divided among the surviving children.* The doctrine of equal distribution of an estate means that the assets of a deceased person are divided evenly among their rightful heirs or beneficiaries. While it is mathematically simple, legal systems often mandate that distributions be equitable (fair) rather than strictly equal, depending on unique family needs or circumstances. What is the distinction between equal and and equitable distribution? Equal Distribution: This implies a mathematically identical split. For example, if an estate is worth $1,200,000 and there are three children, each child receives exactly $400,000 (or an equal one-third portion of all individual assets), whereas Equitable Distribution: Refers to a "fair" distribution. Instead of a straight percentage split, the Court or the Will accounts for individual situations like a child's financial needs, health conditions, or past sacrifices e.g., acting as a caregiver. How do these doctrines work in practice? * **Intestacy Laws:** If a person passes away without a Will (intestate), the law usually kicks in to determine who gets what. In many jurisdictions (such as Law of Succession Act, if the deceased leaves behind children but no surviving spouse, the net intestate estate must be equally divided among the surviving children, regardless of age or gender. * **Estate Equalization:** When a trust contains illiquid assets (like a family business or a physical house) that cannot be easily cut into equal pieces, trustees use "estate equalization." This involves giving one child the house and another the business, then utilizing cash or stock portfolios to balance out the total monetary value given to each heir * **Fair is Not Always Equal:** Because different properties carry different sizes and economic values, legal bodies (such as Courts handling succession matters) emphasize that distributing properties perfectly equally is often impossible. The law prioritizes a fair, balanced outcome over scientific exactness. * **Creditor Priority:** Regardless of whether the distribution is meant to be equal or equitable, an estate cannot be distributed to beneficiaries until all of the deceased person’s outstanding debts, liabilities, and final taxes are completely paid off. 1. In view of the facts of this case, I hereby exercise discretion to apply the provisions of Sections 35, 36, 37 & 38 of the Law of Succession Act to have the net residual estate being Uasin Gishu/Katptagat/89 measuring 9.8Ha be distributed equitably among the surviving children of the deceased which shall include any children from the household of Eunice Jerop Keitany and Joseph Kipngetich Keitany. For those reasons a certificate of confirmation of grant shall be issued to all the surviving children of the deceased and for those who have passed on during the pendency of this proceedings their surviving children be allocated the applicable shares fairly and proportionately. It is so ordered. **DATED, DELIVERED AND PUBLISHED VIA CTS AT ELDORET THIS 6TH DAY OF JULY 2026.** **………………………….……….** **R. NYAKUNDI** **JUDGE**