https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9835

In re Estate of Cheserek (Deceased) (Succession Cause 223'B' of 2007) [2026] KEHC 9835 (KLR) (6 July 2026) (Ruling) Neutral citation: [2026] KEHC 9835 (KLR) Republic of Kenya In the High Court at Eldoret Succession Cause 223'B' of 2007 RN Nyakundi, J July 6, 2026 In the matter of Francis K Koima 1st Petitioner Gideon K Koima 2nd Petitioner Joseph K Koima 3rd Petitioner Ruling 1.Before this Court is consent to confirmation of grant and mode of distribution dated 30th March 2026. That:a.That the beneficiaries of the Estate of the late Simon Koima Cheserek (Deceased) have consented to Francis K. Koima be made the administrator of the estate of the late Simon Koima Cheserek in absence of Flora Koima now deceased that they have agreed Kimoi Koima & Francis K. Koima to be the Administrators of the estate of the deceased be rectified and distributed as follows:a.Mosop/Metkei/558-5.6 ha. Whole registered in the name of Joshua Cheserek.b.Mosop/Metkei/549-4.8 ha. to be distributed as follows;-i.Joseph Koima to get 2.0 Acres;ii.Daniel Koima to get Acres;iii.Catherine Koima to get 2.0 Acres;iv.Racho Cheserek to get 2.0 Acres;v.Doreen Koima to get 2.0 Acres;vi.Magdaline Koima to get 2. Acres.c.MOSOP/METKEI/563 measuring 4.6Ha to be distributed as follows:i.Paul C. Koima to get 2.8 acres;ii.Gideon K. Koima to get 2.8 acres;iii.Robert Kibiwott Koima to get 2.8 acres;iv.Kimoi Koima to get 2.8 acres andv.Caren Koima to get 1.0 acres.d.Baharini Settlement Scheme/134 to be distributed as follows;i.Edward Koima to get 2.5 acres;ii.Philip Koima to get 2.5 acres;iii.Teresa Koima to get 1.5 acres;iv.Peter Koima to get 2.5 acresv.Esther Koima to get 1 acre;vi.Wilfred Koima to get 2.5 acres;vii.Josephat Koima to get 2.5 acres;viii.Nickson Koima to get 2.5 acres;ix.Lydia Koima to get 1.9 acres;x.Mercy Koima to get 1.8 acres.e.Plot Centre No.9 Kamwosor to be shared equally between Francis Koima and Kimoi Koimaf.Half share of Kiplombe/Kiplombe Block 10 (Growel)/180 to be shared equally between Francis Koima and Gideon Koimag.Kaisagat Settlement Schieme/108 to be distributed as follows;i.Thomas Muthuri to get 10 acres andii.Thandei Chacha to get 10 acres. 2.In support of the application is the sworn affidavit of Joseph Kiptoo Koima who deponed as follows:a.That I am the Administrator of the estate of the late Simion Koima Cheserek-Deceased herein and therefore competent to swear this affidavit.b.That I swear this affidavit on my own behalf and with the authority of Francis Koima, a beneficiary of the estate, who has duly authorized me to depone to the matters herein on his behalf.c.That the deceased died intestate on 19th March, 2000 and was survived by the following beneficiaries;The First Widow-flora Koima-deceased.i.Francis K Koimaii.Edward K Koimaiii.Esther Koimaiv.Catherine Koimav.Madgalene Koimavi.Tereza Koimavii.Recho J Cheserekviii.Joseph K Koimaix.Peter K Koimax.Philiph K Koimaxi.Toroitich Koimaxii.Jerono KoimaSecond Widow-kimoi Koimai.Wilfred K Koimaii.Paul C Koimaiii.Gideon K Koimaiv.Kipsang N Koimav.Jekosgei Koimavi.Josephat Koimavii.Lydia Koimaviii.Kibiwott Koimaix.Jepkoech Koimad.That the estate of the deceased comprises several assets including Land parcel number Baharini Settlement Scheme No 134 (hereinafter referred to as "the Suit property”)e.That all the beneficiaries have agreed on the mode of distribution of all the other assets of the estate save for the suit property.f.That the dispute before this Honorable Court is therefore limited solely to the distribution of Land Parcel No. Baharini Settlement Scheme No 134.g.That I depose in support of a proposed mode of distribution of the suit property which takes into account the long-standing occupation, contribution and developments made by one of the beneficiaries/objector namely Edward K Koima.h.That during the lifetime of the deceased the Objector;i.Paid land rates and serviced the Agricultural Finance Corporation (AFC)loan relating to the suit propertyii.Planted trees and carried out substantive and permanent developments thereon propertyiii.Has been in open, continuous and uninterrupted occupation of a portion of the suit property for a period of over thirty five (35) years with full knowledge and blessings of the deceased.i.That at one point while the Deceased was still alive, he (that is the Deceased), together with his two wives expressed an intention to sell the entire suit property so as to settle a loan of Kenya Shillings Forty Thousand (Kshs. 40,000/=) which was then being owed to a 3rd Party who was not a family member.j.That however, the Objector willingly stepped and settled the said loan so as to prevent the loss of their familial and/or ancestral land by paying the said loan of Kshs. 40,000/=.k.That the objector paid a sum of Kshs. 40,000/= as applicable to intended purchaser in the presence of one of the Administrators namely Francis K. Koima thereby securing his interest in the suit property.l.That even after the Deceased had passed, the Objector willingly paid for the Conveyancing fees, incurring substantial costs being Kshs. 17,200/=, Kshs.540/=and Kshs. 250/= all in a bid to secure the subject suit property.m.That subsequently, during his last days when he was suffering from sickness, the Deceased visited the area Chief where he expressed and outlined how the suit property was to be shared between the Objector and his younger brother Philip K Koima which arrangement has since been acted upon by the parties.n.That the said Area Chief noted that the Objector herein and his brother, the said Philip K. Koima have long since, and currently, reside on the subject suit property in equal shares, and I there have been no complaints regarding their settlement on the same.o.That in view of the foregoing circumstances, it is just, fair and equitable that the objector be allocated Nine (9) acres out of land parcel No. Baharini Settlement Scheme No 134 in recognition of;i.His financial contributionsii.His long occupation and developmentsiii.The express wishes and conduct of the deceased during his lifetime.iv.All efforts, time and resources he has expended at his own personal cost to secure the subject suit property;v.The application of the equitable principle being that “Equity aids the vigilant and not the indolent".p.That I, together with the said Francis K Koima wish and pray that this Honorable Court do adopt and approve the proposed mode of distribution of the estate, and in particular the distribution of land parcel No. Baharini Settlement Scheme No 134.q.That the proposed mode of distribution of the other assets of the estate remains uncontested and is not the subject to these proceedings.r.That none of the other beneficiaries stand to be prejudiced if our proposed Mode of Distribution is adopted, as it conforms to our father's wishes, is informed by our collective efforts at safeguarding and preserving the Deceased's estate and is grounded on the principles of equity, fairness and the equitable distribution of the Deceased's estate.s.That it would be a great injustice if our proposed Mode of Distribution is not adopted as proposed herein especially considering our contributions in safeguarding the subject suit property, as well taking in account the substantial developments that we have put up therein, as outlined herein above. 3.In opposition to the mode of distribution one Giedeon Koima on application dated 31st March 2026, avers as follows:a.That I am an adult of sound mind and the 2nd Petitioner hereinb.That the deceased was survived by the following children:-i.Flora Koima-Widow-deceasedii.Kimoi Koima-surviving widowiii.Francis K. Koimaiv.Edward K. Koimav.Magdalene Koimavi.Catherine Koimavii.Teresa Koimaviii.Joseph K Koimaix.Racho Koimax.Peter K. Koimaxi.Philip K. Koimaxii.Daniel Toroitich Koimaxiii.Doreen Cheronoxiv.Wilfred Koimaxv.Paul Koimaxvi.Gideon Koimaxvii.Nickson Koimaxviii.Caren Koimaxix.Josephat Koimaxx.Lydia Koimaxxi.Robert Kibiwott Koimaxxii.Laura Koimac.That deceased estate is comprised of the following properties and assets;i.Mosop/Metkei/549;ii.Mosop/Metkei/558;iii.Mosop/Metkei/563;iv.Plot Centre No. 8 Kamwosorv.Plot No.108 Kaisagat Scheme;vi.Baharini Settlement Scheme Plot No. 134.vii.Kaisagat Settlement Scheme/108viii.half share of Kiplombe/Kiplombe Block 10(Growel)/1804.d.That the deceased had sold that parcel of land known as Kaisagat Settlement Scheme/108 and the same is under the occupation of the 2 creditors.e.That the 1st and 3rd Petitioners in their mode of distribution have deliberately left out that property known as Kiplombe/Kiplombe Block 10(Growel)/180 despite that the deceased owned half of itf.That the 1st and 3rd petitioners also know the beneficiaries of the deceased but have not made any provision for the following beneficiaries;i.Magdalene Koimaii.Catherine Koimaiii.Teresa Koimaiv.Racho Koimav.Doreen Cheronovi.Caren Koimavii.Lydia Koimaviii.Laura Koimah.That the proposal by the 1st and 3rd petitioners is not only discriminative but also unfair and skewed since they have provided for themselves large portions and unjustifiably locked out majority of the beneficiaries.i.That my proposal is informed by current occupation.j.The allegations by the 1st and 3rd petitioners that they are entitled to more land by virtue of alleged repayments of rates and loans is any without any basis but are driven by greed and oppression of the other beneficiariesk.That the deceased settled his dates and statutory obligations in person without the assistance of any of his children.l.That the aforesaid petitioners are not creditors over the estate of the deceasedm.That in any event there has never been any privity of contract between the deceased and the said petitioners. 4.As it is the requirement of the law of succession the beneficiaries consented to the confirmation of grant though not every beneficiary signed the aforesaid consent in which the following model was shared with the Court. Thus:a.Mosop/Metkei/558-5.6 ha. Whole registered in the name of Joshua Cheserek.b.Mosop/Metkei/549-4.8 ha. Daniel Toroitich Koima & Joseph Koima to be shared jointlyc.Mosop/Metkei/563 measuring 4.6 ha to be distributed as follows:i.Paul C. Koima to get 1.8 acresii.Gideon K. Koima to get 1.8 acresiii.Robert Kibiwott Koima to get 1.8 acresiv.Kimoi Koima to get 1.8 acresv.Nickson Koima to get 1.8 acresvi.Wilfred Koima to get 1.8 acresvii.Laura Koima to get 0.4 acresd.Baharini Settlement Scheme/134 to be distributed as followsi.Edward Koima to get 9 acresii.Philip koima to get 6 acresiii.Josphat Koima to get 2 acrese.Plot Centre No.4 Kamwosor to be shared equally by Francis Koima & Kimoi Koima.f.Kaisagat Settlement Scheme/108 to be distributed as follows:i.Thomas Muthuri to get 10 acres andii.Thandei Chacha to get 10 acres. 5.One Joseph Kiptoo Koima also an Administrator in a further affidavit made the following proposals:a.That I am the Administrator of the estate of the late Simion Koima Cheserek-Deceased herein and therefore competent to swear this affidavit.b.That I swear this affidavit on my own behalf and with the authority of Francis K. Koima, one of the Administrators of the estate, who has duly authorized me to depone to the maters herein on his behalf.c.That the deceased died intestate on 19th March, 2000 and was survived by the following beneficiaries;The First Widow- Flora Koima-deceased.i.Francis K Koimaii.Edward K Koimaiii.Esther Koimaiv.Catherine Koimav.Madgalene Koimavi.Tereza Koimavii.Recho J Cheserekviii.Joseph K Koimaix.Peter K Koimax.Philiph K Koimaxi.Daniel T. Koimaxii.Doreen J. KoimaSecond Widow- Kimoi Koimai.Wilfred K Koimaii.Paul C Koimaiii.K Koimaiv.Nickson K. Koimav.Caren Koimavi.Josephat Koimavii.Lydia Koimaviii.Robert Kibiwott Koimaix.Laura Koimad.That the estate of the deceased comprises several assets including:i.Land parcel number Mosop/Metkei/558;ii.Land parcel number Mosop/Metkei 549;iii.Land parcel number Mosop/Metkei/563;iv.Land parcel number Baharini Settlement Scheme No 134;v.Plot Centre No. 8 Kamwosor;vi.Kaisagat Settlement Scheme/ 108.e.That all the beneficiaries have not agreed on the mode of distribution of the Deceased's Estate.f.That we, the members from the 1st House, have agreed on and proposed a reasonable, practical and equitable Mode of Distribution which we are certain takes into account all the strengths and merits of the beneficiaries of the Deceased.g.That it is not in doubt that the parcel of land known as was subject to a loan advanced by serviced the Agricultural Finance Corporationh.That furthermore, we (being the members of the 1st House) wish to highlight the very important fact that during the lifetime of the deceased, one of the beneficiaries herein, namely one Edward Koima paid land rates and the loan owed to the AFC relating to the suit property.i.That the said Edward Koima took possession of his assigned portion of the Deceased's Estate and has been in exclusive, open, continuous and uninterrupted occupation of a portion of the suit property for a period of over thirty five (35) years.j.That additionally, he, and he alone planted trees therein and made substantive, permanent developments thereink.That our Advocate on record has advised and informed us that the 2nd Administrator have not [handwritten insertion] demonstrated by way evidence that the said Edward Koima has not been in occupation, exclusive possession and using his assigned portion of the Deceased’s estate.l.That we wish to reiterate that the said Edward Koima took possession, occupation and used the subject suit property with full knowledge, consent and blessings of the Deceased while he was alive.m.That at some point while the Deceased was still alive, he (that is the Deceased), together with his two wives expressed an intention to sell the entire suit property so as to settle a loan of Kenya Shillings Forty Thousand (Kshs. 40, 000/=) which was then being owed to a 3rd Party who was not a family member.n.That given that this sale would have resulted in substantial financial and material loss for the Deceased, the said Edward Koima willingly stepped and settled the said loan so as to prevent the loss of their familial and/or ancestral land by paying the said loan of Kshs. 40, 000/=.o.That to this end, the said Edward Koima repaid a sum of Kshs. 40,000/= that had been advanced by the said intended purchaser in the presence of one of the Administrators namely Francis K. Koima thereby securing his interest in the suit property.p.That he said Edward Koima continued to make significant contributions to the Estate even after the Deceased had passed on, as he willingly paid for the Conveyancing fees, incurring substantial costs amounting to Kshs. [symbol] Kshs. 17, 200/=, Kshs. 540/= and Kshs. 250/= all in a bid to secure the subject suit property.q.That subsequently, during his last days when he was suffering from sickness, the Deceased visited the area Chief where he expressed and outlined how the suit property was to be shared between the Objector and his younger brother PHILIP K KOIMA which arrangement has since been acted upon by the parties.r.That the said Area Chief noted that the Administrator herein and his brother, the said Philip K. Koima have long since, and currently, reside on the subject suit property in equal shares, and there have been no complaints regarding their settlement on the same.s.That we, the members of the 1st House, wish to propose the following Mode of Distribution of the suit property which takes into account the long-standing occupation, contribution and developments made by one of the beneficiaries, namely Edward K. Koima.a.1st and 3rd Administrator's Proposed Mode of Distributiona.Mosop/Metkei/558 – (measuring approximately 5.6 Ha)i.Whole parcel to be registered in the name of Joshua Cheserek.b.Mosop/Metkei/549 (measuring approximately 4.8 Ha)ii.Daniel Toroitich Koima – to get 1.2 Hectares;iii.Joseph Koima - to get 1.2 Hectares;iv.Doreen Jerono Koima - to get 1.2 Hectares; andv.Recho J. Cheserek - to get 1.2 Hectares.c.Mosop/Metkei/ 563 measuring approximately 4.6 Hai.Paul C. Koima – to get 2.8 Acres;ii.Gideon K. Koima – to get 2.8 Acres;iii.Robert Kibiwott Koima – to get 2.8 Acres;iv.Laura Koima – to get 1.0 Acre;v.Lydia Koima – to get 1.0 Acre; andvi.Caren Koima – an Eighth (1/8th or 0.8 of an Acre).d.Baharini Settlement Scheme/134 measuring approximately 20 Acres or thereabouts to be distributed as hereunder:i.Wilfred Koima – to get 1.5 Acres;ii.Edward Koima – to get 5.5 Acres;iii.Josephat Koima – to get 1.5 Acres;iv.Nickson Koima – to get 1.5 Acres;v.Philip Koima – to get 2.0 Acres;vi.Catherine Koima – to get 2.0 Acres;vii.Esther Koima – to get 2.0 Acres;viii.Tereza Koima – to get 2.0 Acres; andix.Magdalene Koima – to get 2.0 Acrese.Plot Centre No. 8 Kamwosor;i.Francis Koima Kimoi Koima to be shared equallyf.Kaisagat Settlement Scheme/ 108 to be distributed as hereunder:i.Thomas Muthuri to get 10 Acres.ii.Thandie Chacha to get 10 Acres.t.That in view of the foregoing circumstances, it is just, fair and equitable that the said Edward Koima be allocated Five point Five (5.5) Acres out of land parcel No. Baharini Settlement Scheme No 134 in recognition of;i.His financial contributionsii.His long occupation and developmentsiii.The express wishes and conduct of the deceased during his lifetime.iv.All efforts, time and resources he has expended at his own personal cost to secure the subject suit property;v.The application of the equitable principle being that "Equity aids the vigilant and not the indolent".Regarding provisions for the female beneficiaries of the Deceasedu.That we, the members of the 1st House, have proposed to allocate our half-sisters, the daughters from the 2nd House of Kimoi Koima, namely Laura Koima, Lydia Koima and Caren Koima should all get a portion of One Acre, One Acre and an Eighth of an Acre respectively (1.0, 1.0 and 0.8 Acre respectively) from that parcel of land known Mosop/Metkei/563 for the following reasons:i.We have agreed that they should take and be bequeathed the portion that would have been given to their elderly mother;ii.The members of the 1st House of Flora Koima (Deceased) do not have any issues with them being so allocated;iii.These two sisters are yet to be married, and these allocations will be useful in providing them a livelihood.v.That additionally, we have also proposed that our own sisters, namely Catherine Koima, Esther Koima and Tereza Koima should be catered for in the following terms; Property details: Baharini Settlement Scheme /134i.Catherine Koima – to get 2.0 Acres;ii.Esther Koima – to get 2.0 Acres;iii.Tereza Koima– to get 2.0 Acres;iv.Magdalene Koima – to get 2.0 Acresw.That additionally, we have also proposed to cater for our sisters namely Doreen Jerono Koima and Recho J. Cheserek in the following manner: Property details – Mosop/Metkei/549i.Doreen Jerono Koima – to get 1.2 Hectares; andii.Recho J. Cheserek – 1.2 hectares.x.That from the foregoing, it is manifestly and abundantly clear that our said Mode of Distribution is balanced, and ably caters for the female members of our family, and is not in way discriminatory but rather respects gender equality.Regarding provisions for one Peter Koimay.That we, the members of the 1st House, have also proposed and resolved to not award one of our brothers, namely Peter Koima any portion of that parcel of land known as Land Parcel No. Baharini Settlement Scheme No 134 as he does not have any interest in the same.z.That our said family resolution is based on the following facts:i.The family long decided to settle the said Peter Koima on an alternative piece of land, other than Land parcel No. Baharini Settlement Scheme No 134.ii.That the said Peter Koima has already been settled on a Two Acre (2 Acre) parcel of land which is situated away from the parcel of land known Baharini Settlement Scheme No 134;iii.That the parcel of land that he now resides in is that parcel of land known as Olare/Burnt Forest Block 6/Kapchorwa No. 38;iv.As such, any beneficial interest that he may have previously had in Land parcel No. Baharini Settlement Scheme No 134 has since been extinguished.aa.That I am confident that this Proposed Mode of Distribution is fair, balanced, and equitable and caters to all the beneficiaries.ab.That none of the other beneficiaries stand to be prejudiced if our proposed Mode of Distribution is adopted, as it conforms to our father's wishes, is informed by our collective efforts at safeguarding and preserving the Deceased's estate and is grounded on the principles of equity, fairness and the equitable distribution of the Deceased's estate.ac.That it would be a great injustice if our proposed Mode of Distribution is not adopted as proposed herein especially considering the said Edward Koima's significant financial contributions in safeguarding the Deceased's Estate, as well taking in account the substantial developments that we have put up therein, as outlined hereinabove. 6.I have had the advantage of reviewing the entire modes of distribution proposed by the beneficiaries and the Administrators, although in certain instances they seem to be at variance with each other. In Kenya intestate estate distribution is governed primarily by the Law of Succession Act. In summary the applicable laws and section are as follows: Single Surviving Spouse & Children (Section 35 & 36): The spouse gets personal/household effects absolutely, plus a "life interest" in the remainder of the estate. The children inherit the remainder equally. A widow's life interest terminates if she remarries. Surviving Children, No Spouse (Section 38): The net estate is divided equally among the children. Polygamous Families (Section): The estate is divided among the different "houses" (families of each wife) proportionally based on the number of children in each house, counting the surviving widow as an additional "unit The key decided cases and precedents: Gender and Marital Equality: In Re Estate of Lerionka Ole Ntutu (Deceased), the Court affirmed that daughters (both married and unmarried) must be treated equally with sons, doing away with discriminatory customary practices. Similarly, the Court of Appeal in Stephen Gitonga M'murithi v. Faith Ngira Murithi established equal division for all children irrespective of gender Polygamous Distribution: In re Estate of Michael George Tendwa Said [Deceased], the Court reinforced that Section 40 is the mandatory fallback law for polygamous distributions when the households cannot reach an amicable agreement. Previous Benefits and Skewed Distribution: In re Estate of Cheptoo Arap Koisum, the Court applied Section 42, noting that previous lifetime gifts given to certain beneficiaries must be factored into the final distribution to ensure equity. 7.It is also the law in Kenya that Article 27 (1-4) prohibits discrimination on any of the following grounds:(1)Every person is equal before the law and has the right to equal protection and equal benefit of the law.(2)Equality includes the full and equal enjoyment of all rights and fundamental freedoms.(3)Women and men have the right to equal treatment, including the right to equal opportunities in political, economic, cultural and social spheres.(4)The State shall not discriminate directly or indirectly against any person on any ground, including race, sex, pregnancy, marital status, health status, ethnic or social origin, colour, age, disability, religion, conscience, belief, culture, dress, language or birth. 8.The succession arena in Kenya has seen numerous estates become embroiled in disputes, and it is noteworthy that these disputes extend beyond familial circles; third-party claimants frequently assert interests in the deceased's assets. Consequently, Courts have assumed the responsibility of adjudicating the veracity of such claims and subsequently determining the mode of devolution for the deceased's estate. This is a polygamous setting which entails conflicts among family units regarding estate distribution influenced by favors such as marriage, timing, offspring count, and gifts received together with prior occupation rights. This Court’s intervention would be guided by the provisions of Section 35 to 40 of the Law of Succession Act. Further Section 29 of the Act is clear in its non-discrimination of possible dependants of the deceased. It does not separate between male and female, their marital status or otherwise. This means that the Administrators in their mode of distribution proposed to the Court cannot lock out dependents based on their gender or marital status or any other reasons. In my considered view distribution is not meant to be a fresh start but must also take into account the previous occupational rights and developments undertaken more so on matrimonial household. In the affidavits filed, it appears as if the proposal made have taken into account certain contributions made by beneficiaries like the case in point being of one Edward Koima who discharged the loan owed to the AFC and thereafter took possession of the said portion of land. In my considered view the mode of distribution by Joseph Kiptoo Koima is on the near side of the law in so far as the distribution of the estate is concerned in the following matrix with variations where the Court is of the view that no compelling reason has been given for major differences in the allocation of shares to the beneficiaries to the same estate. As a consequence, therefore the estate shall be distributed as follows: PROPERTY BENEFECIARIES SHARE Mosop/Metkei/558 measuring approximately 5.6 Ha Joshua Cheserek Whole Mosop/Metkei/549 measuring approximately 4.8 Ha Daniel Toroitich Koima 1.2 Hectares Joseph Koima 1.2 Hectares Doreen Jerono Koima 1.2 Hectares Recho J. Cheserek 1.2 Hectares Mosop/Metkei/ 563 measuring approximately 4.6 Ha Paul C. Koima 2.8 Acres Gideon K. Koima 2.8 Acres Robert Kibiwott Koima 2.8 Acres Lydia Koima 1.0 Acre Laura Koima 1.0 Acre Caren Koima An Eighth (1/8 or 0.8 of an Acre) Baharini Settlement Scheme/134 measuring approximately 20 Acres or thereabouts Wilfred Koima 1.5 Acres Josephat Koima 1.5 Acres Edward Koima 5.5 Acres Nickson Koima 1.5 Acres Philip Koima 2.0 Acres Esther Koima 2.0 Acres Magdalene Koima 2.0 Acres Catherine Koima 2.0 Acres Tereza Koima 2.0 Acres Plot Centre No. 8 Kamwoso Francis Koima and Kimoi Koima To be shared equally Kaisagat Settlement Scheme/108 Thomas Muthuri 10 Acres Thandie Chacha 10 Acres Baharini Settlement Scheme No. 134 Edward Koima Five (5.5) Acres Mosop/Metkei/563 Laura Koima 1.0 Acres Lydia Koima 1.0 Acres Caren Koima 0.8 Acres Baharini Settlement Scheme /134 Catherine Koima 2.0 Acres Esther Koima 2.0 Acres Tereza Koima 2.0 Acres Magdalene Koima 2.0 Acres Mosop/Metkei/549 Doreen Jerono Koima 1.2 Hectares Recho J. Cheserek 1.2 Hectares 9.One of the most important challenges for the new constitutional order is to re-establish respect for human dignity by addressing the inequities and unfair discrimination of the past. As noted above, the right to equality is premised on the idea that every person possesses equal human dignity. Unfair discrimination against persons on grounds of personal attributes denies recognition of the very attribute that is common and equal to all-namely human dignity. 10.The principle which ought to apply in matters of this nature is as laid down 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 marriage 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.This Court is inclined to disregard the mode of distribution proposed by the 1st Applicant since the same does not make provision for the entitlements that are due to the deceased’s children who were born out of wedlock. If such a mode of distribution was to be adopted by this Court, it would result in manifest discrimination in contravention of the provisions of Article 27 of the Constitution of Kenya, 2010 which expressly prohibit discrimination on any ground…” 11.The specific law that applies to intestacy succession in polygamous setting is Section 40 of the Law of Succession Act (Cap. 160, Laws of Kenya) (the “Act”) which provides as follows;“…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…”The Act further defines a “house” as;“a family unit comprising a wife, whether alive or dead at the date of the death of the husband and the children of that wife” 12.In my view there is a pattern in the mode of distribution which connotes and fair discrimination even between the daughters who are from the same lineage. For example, under Paragraph 21 of the affidavit in support some of the beneficiaries who happened to be daughters have been allocated 1 acre and 0.8 acres respectively within land parcel No. Mosop/Metkei 563. However, notwithstanding that variance with other sisters who are allocated 2 acres, the three namely Laura Koima, Lydia Koima Caren Koima had consented to that mode of distribution hence there is no dispute in so far as the application of Article 27(4) of the Constitution is concerned. Therefore, after discussing the constitutional and statutory provisions with regard to the distribution of the estate it goes without saying that the discretion of this Court be exercised within the provisions of Section 40 for the certificate of confirmation of grant to be issued forthwith for the Administrators to proceed without any further delay to transmit the estate to the beneficiaries within the matrix outlined elsewhere in this decision. As a consequence of which the Deputy Registrar of the High Court shall monitor compliance on the commitment of the Administrators to follow the guidelines on the Law of Succession Act in terms of Section 82, 83 & 84 on the administration of the estate. The status conference shall be held on or before 30th of October 2026. It is so ordered. DATED, DELIVERED AND PUBLISHED VIA CTS AT ELDORET THIS 6TH DAY OF JULY 2026................................R. NYAKUNDIJUDGE