https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12610

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT BOMET** **SUCCESSION CAUSE NO. 28 OF 2019** **IN THE MATTER OF THE ESTATE OF STEPHEN KIPLANGAT TOWETT (DECEASED**) AND SAMMY CHELULE LANGAT……………….1ST PETITIONER RICHARD CHERUIYOT LANGAT………..2ND PETITIONER **JUDGEMENT** 1. This succession cause brings out the tension between statutory and customary law rights in the area of marriage and succession. Before the advent of western culture and civilization, traditional African societies had in place cultural rules on marriage and succession some of which have stood the test of time and continue to push back against clear constitutional and statutory rights. 2. Mzee Stephen Kiplangat Towett (hereinafter the deceased or Towett), died intestate on 24th May 2018. There was contestation whether at the time of his demise, he was a polygamous or monogamous man having married two wives but successively. 3. Towet married Tapratinch Towett in 1945 under the Kipsigis customary law. In 1966, Tapratich passed away leaving the following children: - 4. Grace Cherono Soi- Daughter 5. Ruth Chepkurui Tonui- Daughter (deceased) 6. Jane Jesigei Yebei –Daughter (deceased) 7. David Chelule Langat (Deceased)-Son 8. Richard K. Cheruiyot Langat –Son 9. Philip Kibet Langat- Son 10. Upon the demise of Tapratich, married Ludiah Chepkosgei Towett (hereinafter “the widow”) in the year 1966 through a church wedding at AIC, Kimwolet and together, they had the following children: - 11. Sammy Chelule Langat-son 12. Margaret Chepgeno Langat- daughter 13. Peter Kiprono Langat- son 14. Joyce Chepgentich- daughter 15. Nancy Chepkoech- daughter. 16. Langat Kenneth Kiptonui- son 17. Leornard Kipkorir Langat- son 18. Sammy Chelule Langat (1st Petitioner) petitioned for letters of administration for the deceased’s estate. His petition met a prompt objection by Richard Chelule Langat (2nd Petitioner) on grounds that Sammy had filed the succession cause without involving him and his siblings. 19. The objection was resolved when the court appointed both Sammy Chelule Langat and Richard Cheruiyot as co-administrators being the 1st and 2nd Petitioners a respectively and representing the 1st and 2nd households respectively. 20. The family could not agree on distribution leading to protracted proceedings that have seen the matter handled by clan elders, and mediators with limited success. The parties however came out of the court annexed mediation having partially agreed. 21. The matter proceeded for *viva voce* hearing with the 1st Petitioner calling nine and the 2nd Petitioner six witnesses in support of their respective positions. **The 1st Petitioner’s case.** 1. PW1- Ludiah Chepkosgei (the widow) adopted her witness statement dated 4th July 2022. She stated that she was the surviving widow of the deceased having been married under Christian marriage celebrated at African Inland Church, Kimolw et in the year 1966. That her late husband settled her on land parcel no. Kericho/Chemagel/133 where he had already built a house and a home which was the only property the deceased had by then. 2. She averred that the deceased had another wife who had passed on before she was married and was survived by six children five of whom she raised alongside hers in the said house which she continues to occupy to date. Further, when the children grew up, the deceased settled each son in their separate parcels of land while the daughters got married. 3. It was her statement that jointly with the deceased, they bought the following: - 4. Land parcel LR No. Kericho/Chemagel/139 measuring 13 acres. ii. Land parcel LR No. Kericho/Chemagel/306 measuring approximately 4 acres which was given to Grace Cherono together with one cow. iii. Land parcel LR No. Kericho/Chemagel/1771 measuring five acres iv. Land parcel LR No. Kericho/Chemagel/281 measuring 4 acres v. Land parcel Kericho/Chemagel/1559 measuring 4 acres. 12. Ludiah stated that her late husband had settled the sons as follows:- (i) In 1984 the late David Chelule Langat on LR No. Kericho/Chemagel/1771 an approximately 4.75 acres and some cows to rear and upon his demise, he was buried on the said land. (ii) In1988 settled Richard Cheruiyot Langat L.R No. Kericho/Chemagel/281 and LR No. Kericho/Chemagel/1559 measuring approximately 4 acres and 1.5 acres totaling to 5.5 acres and a cow to rear. That Richard resides on parcel 281 where he has a permanent home and there are two shops existing at parcel number 1559. (iii) In 1992 Philip Kibet Langat and Samwel Chelule Langat were settled on LR No. Kericho/Chemagel/139 measuring 13 acres which they are residing on to date. That Philip Kibet Langat took 7 acres of the land while (iv) Samwel Chelule Langat took 6 acres of the land where he has a permanent home. (v) In 2010, Peter Kiprono Langat was settled on LR No. Kericho/Chemagel/124 measuring nine acres and the reason for him being settled on a bigger parcel was that the said parcel consists of clay soil which is of less value compared to the other parcels. (vi) In 2011, Kennedy Langat was shown where to construct his house within LR No. Kericho/Chemagel/133 and he immediately began construction. That he was not given the particular acreage but during mediation it was agreed that he would get 5 acres from the parcel. (vii) In 2013 Leonard Kipkorir Langat was instructed by the deceased to build his house within LR No. Kericho/Chemagel/133 which he continues to occupy as per the deceased’s wishes that he stays within the homestead by virtue of being a last born. 13. Ludiah further stated that Nancy Chepkoech is not married and lives with her on the same compound. That since LR no. Kericho/Chemagel/133 was not divided the same should be distributed as follows: - i. Kennedy Langat- 5 acres ii. Leonard Kipkorir Langat-5 acres iii. Nancy Chepkoech -5 acres iv. That for the remaining portion together with LR No. Kericho/Chemagel/4272 to be shared amongst Grace Cherono Soi, Margaret Chepngeno and Joyce Chepngetich who are all married. iv. LR No. Kericho/Chemagel/2470 measuring 0.5 acres the family was in agreement the same be disposed to cater for the costs of the succession cause. 14. She also stated that she had known LR No. Kericho/Chemagel/133 as her matrimonial home where she buried her husband and all the children were raised there. That the deceased never relocated her or build her another house in her lifetime. Further, the deceased created a family graveyard over 60 metres from her house within this parcel of land where 1st wife and the deceased children all rested. That she wishes to stay in her matrimonial home together with Leonard her lastborn. 15. Ludiah further stated that she has planted tea bushes measuring 2.5 acres on this land and wishes to continue farming for her income which tea farm should be under the care and maintenance of Leonard. She proposed that the cash in Standard Chartered bank should be hers as they were her savings with the deceased and the shares in the bank be shared equally amongst the 13 children. 16. She proposed that the nine remaining cows be distributed as follows: - i. Philip Kibet Langat- 1 cow ii. Sammy Chelule Langat -1 cow iii. Kennedy Langat- 1 cow iv. Leonard Langat- 1 cow v. Nancy Chepkoech- 1 cow vi. Ludiah Chepkosgei Towett (self)- 4 cows and the same be under the maintenance of Leornard She further proposed that the shops at Sotik town and Soimet shopping centre should be shared equally amongst the 13 children. 17. On cross- examination by Mr. J.K Koech, she stated that she was married to the deceased and lived with him until his death. That the 1st wife had passed on when she got married and they had six children which she took care of. That she had one child Samuel Langat when she got married and had other seven children with the deceased. 18. It was her testimony that the old house was pulled down and a new one built for her. That the deceased wife was lived in a house on the lower side of the shamba. Further, that her deceased husband was buried outside her house. 19. Ludiah testified that she got the properties with her husband. She denied that shamba LR Kericho/Chemagel/ 133 was bought in 1951, 1956 and 1958 and stated that it was bought when she was already married. She insisted that Kericho/Chemagel/2470 was bought by deceased from one Arap Kole and Kericho/Chemagel 124 when she was already married. 20. PW2 Sammy Chelule Langat (1st Petitioner) adopted his witness statement dated 4th July 2022. His evidence was that the deceased (his father) married his mother PW1 in a church wedding in the year 1966 after the demise of his 1st wife and lived together for 52 years. 21. He stated that the deceased never built another matrimonial home considering there were younger children of the 1st wife and PW1 is still in occupation of the matrimonial home thus would be unjust for her to be displaced from the matrimonial home. That the deceased together with PW1 raised up the family as one and there was nothing like 1st and 2nd households. 22. Sammy Chelule stated that the deceased was blessed with 13 children and had settled nearly all his sons and therefore it would be unfair to displace any member from where they had been settled as it would be against the deceased’s wishes. It was his statement that in 1976 the deceased bought LR No. Kericho/Chemagel/306 which measures approximately 4 acres for Grace Cherono Soi and gave her one cow. 23. Cross-examined, PW2 stated that the deceased was a Christian and therefore Kipsigis customary law was not applicable. That his father did not have two wives at the same time and had the other wife been there at the time the widow was married, the deceased would have built another house for her. With respect to the tea bushes and money in the account, he maintained that the tea plantation should remain with the widow. 24. PW3 Kenneth Langat adopted his witness statement. It was his averment that their deceased his father showed him where to erect his house within LR No. Kericho/Chemagel/133 where he currently resides. That since it was the same place the deceased lived, he was not allowed to fence so that the deceased’s cows would graze freely. He added that, from the court annexed mediation, the family unanimously agreed that he be allocated 5 acres of the land. It was his prayer that the court should give him a cow the same way his brothers had been given. 25. PW4 Daniel Langat Barkuto (the deceased’s nephew) adopted his witness statement dated 4th July 2022. It was his statement that the deceased married the widow in the year 1966 under the Christian marriage after the death of his 1st wife. That the deceased and the widow established their matrimonial home on the same home the deceased resided with the 1st wife. He stated that the deceased was a Christian and therefore could not build another matrimonial home for the widow. According to him the widow took care of the 1st wife’s children save for Grace who was already an adult. That the deceased acquired the suit properties after his marriage to the 2nd widow. 26. PW4 further stated that in 2011, the deceased instructed him to construct a house for his son Kennedy and also told him that Kericho/Chemagel would not be subdivided but would be left wholly to Peter. He said that the deceased also told him with his last son Leonard would remain within the homestead. 27. PW5 Kiprotich Arap Rono adopted his witness statement dated 4th July 2022. He gave the same evidence as the other witnesses. He added that the deceased refused to relocate or built another house for the widow and lived with the widow for 52 years in the house he lived with the 1st wife where they also raised all the children. 28. It was PW5’s statement Towett and the widow that acquired several parcels of land and had planted tea on LR No. Kericho/Chemagel/133. He stated that each time the sons wanted to marry, he would relocate them on the said parcels save for two sons who were settled at home where they live with the widow. 29. PW6 Rueben Maritim adopted his witness statement dated 4th July 2022. He averred that he was a retired senior chief living in close proximity to the family of Towett and with whom they belonged to the same clan. His evidence was that he did not know that the deceased had another wife before and only knew about it when the deceased died in the year 2018. It was his statement that the children of the deceased all lived in one home and when they became adults he settled them in the parcels he had acquired. 30. PW7 Francis Ngetich adopted his witness statement dated 4th July 2022. He was a neigbour of the family of the deceased and testified that the deceased, had settled the widow and his children on the land parcels he had acquired and there were no complaints as to the mode of distribution. 31. PW8 Leornard Kipkorir Langat adopted his witness statement dated 4th July 2022 as his evidence in chief. He averred that he was the deceased’s last born and that in 2013, his father showed him where to build his house on LR No. Kericho/Chemagel/133 just as he had shown his other brothers. 32. It was his evidence that their father instructed him to remain close to him being the last born but he did not give him an exact acreage. That since all his brothers were given parcels of land measuring approximately 5 acres, during the mediation family members agreed he should have 5 acres in LR No. Kericho/Chemagel/133. Further, that he had not been a cow like his brothers had and therefore should be given one. 33. Chepngetich Joyce Korir the last born daughter of the deceased adopted her witness statement dated 4th July 2022. She averred that the deceased had equal affection to all his children and the property he acquired he made sure that before his demise he had gifted to his sons in almost equal share and she has no objection to the distribution made by the deceased. She added that as a child of the deceased she was entitled to a share of his estate. **2ND PETITIONER’S CASE** 34. PW1 Richard Cheruiyot Langat the 2nd Petitioner adopted his witness statement 14th July 2022. He stated that he was the son of the deceased from the 1st wife. That his late mother was married in the year 1945 under Kipsigis Customary marriage and practice and they lived peacefully until 1966 when his mother died. 35. It was his statement that after his mother died, his father took another wife (the widow) in the years between the year 1967 and 1968 they lived together in their matrimonial home since the deceased did not build the widow her own house. That according to the Kipsigis culture, when a husband dies the 2nd wife should be moved to another house outside the matrimonial home of the 1st household which was not followed in this case. 36. He testified when he requested the deceased to allow him build a house near the matrimonial home, he refused saying that Philip Langat was the one to inherit the matrimonial home since he was the last born son in the 1st household. That the father instead showed him a portion at Kericho/Chemagel/281 where he currently resides. 37. Richard Langat further stated that the deceased obeyed the Kipsigis culture in that when his brother Marko Towett passed away while having two households, (his 1st wife was also deceased) his father intervened by settling Marko’s 2nd wife in her matrimonial home outside the home of the 1st wife. That the deceased being a respected elder, had settled many such cases in the community. 38. Richard Langat testified that the deceased and the 1st wife between the years 1945 and 1966 bought the following parcels of land: - i. Kericho/Chemagel/133 from Kipngeno Arap Towett and Marko Towett in 1956 ii. LR No. Kericho/Chemagel/139 from Chesube Koech in 1956. iii. LR No. Kericho/Chemagel/124 owned by the Government/County Council of Kipsigis by then were sold to the community including the deceased. iv. Half an acre of LR No. Kericho/Chemagel/2470 (watermill from Arap Kole in 1964). v. Plot No. 7 and Plot No. 9 at Yaganek (Soymet) market which is shared with Kiplangat Chumo. vi. Plot at Sotik Town (shared with other partners.) bought in 1954. 39. He stated that according to Kipsigis culture, the estate of a deceased person is shared among the number of wives not the number of children of each household and in this case the deceased had two households and thus each household should get half share of the estate. 40 Richard testified that they sought the intervention of clan members and a clan meeting was held on 25th July 2020 but the 2nd household declined to attend. That the clan elders resolved that assets not listed in the Succession cause that is; cattle, tea bushes, shops, trees, trailer, tractor, plough and sundry be divided between the two families pending finalization of the succession cause and the minutes were signed by all members present. He said that the 2nd household later rubbished the decision. 41. The 2nd Petitioner asserted that the 1st Petitioner secretly filed the succession cause and included his name as the 2nd Petitioner without consulting him as the eldest brother. That, he filed an objection but later withdrew it when it was agreed that he becomes a co-administrator. 42. Richard testified that the issues were settlement of the beneficiaries from both sides and the acreage due to side. That the 1st household was of the view that the estate be divided equally between the two households while the 2nd household was of the view that the estate be divided among the children. He stated that the 2nd household would have a bigger share if the division is made among children as opposed to households. 43. On the matrimonial home, he stated that the deliberations by the clan resolved that according to Kipsigis customs, where a 1st wife has been laid to rest remains in the custody of her children particularly the last born and another wife only resides there during the lifetime of her husband but must, as a customary requirement, move away after her husband is laid to rest and her sons should build her a house next to her last born son. 44. Cross examined by Mr. Gachaati, he asserted that the widow took care of them but he opposed her favouring one side. He stated that they agreed in the mediation that everyone would remain where the deceased had settled them. He further stated that his mother (the 1st wife) contributed more to the acquisition of the property and that the deceased desired that Philip occupy his house. 45. On re- examination, he stated that the 1st household holds 15 acres of land while the 2nd household holds 35 acres of land and their wish is to get 10 acres of land from the 2nd household including the land within which the matrimonial home sits. 46. PW2 Grace Soi the deceased’s 1st daughter adopted her witness statement dated 30th June 2022 as her evidence in chief. She stated that she was already married when her mother (1st wife) died and that her father asked her to go and bring her friend Ludia who would later get married to the deceased and has remained her step mother to date. 47. Grace also stated that her mother was buried in front of her house- her matrimonial property where she lived with her husband and children when she was alive. That her younger brothers and sisters lived with the widow as the deceased did not built a house for her as his intention was for the widow to take care of the children. 48. Cross-examined, she stated that the deceased did not buy her LR/Chemagel/306 as she is the one who bought it for Kshs. 36,000. That the deceased gave to Margaret, her step sister the land in Molo, and that her deceased father was buried on the opposite side of the house about 20 metres from her mother’s grave. 49. Grace further stated that according to tradition, the younger wife must go to her own house should her husband pre-decease her and it is her children who should build the house for her from the estate. In addition, it was her take that Philip their last born should occupy their mother’s house while Leonard should occupy the widow’s share. 50. PW3 Rev. Dr. Elijah Koske adopted his witness statement filed on 13th July 2022 as his evidence in chief. He stated that the deceased was his uncle and an elder in his clan also his personal pastor. His testimony was that he was aware that the deceased married Tapratinch who passed away in the 1960’s and later married the widow as per Kipsigis Customary Law. That he was very close with the deceased until his demise and presided over his burial ceremony as his pastor. 51. Cross -examined, he stated that the dispute was only about the homestead, a matter which could be resolved at the village level. 52. PW4 Jacob Arap Ngeno testified that he knew the Petitioners as they were brothers. That he was aware the Court had directed that they handle the matter at home and a meeting was convened by the elders. That after both sides were heard, they were asked to leave for the elders to deliberate but the 1st Petitioner’s side did not leave therefore no decision was made. 53. PW5 Jacob Ngeno testified that the 1st wife was buried about 10 meters outside the house where the widow lives. That according to him, the land should be divided into two equal portions of 25 acres each. That according to culture, the house belongs to the 1st wife and a house should be built for the widow. Cross-examined, he stated that the house had been rebuilt thrice. 54. PW5 David Kichangi Mutai adopted his witness statement dated 13th July 2022 as his evidence in chief. He told the court that he attended a clan meeting in 2021 in an attempt to reconcile the two families over the distribution of properties which meeting the 2nd family did not attend. That the meeting went on and a decision was made according to Kipsigis Customary Law. 55. David Mutai stated that according to Kipsigis culture, the matrimonial home belongs to the 1st wife’s family and it does not matter how long the widow had lived there. That a house must be built for a second wife. Further, that when the 1st wife died cultural cleansing rites were done in the home. In cross-examination, he stated that the deceased was polygamous that is why there are two houses. That the 2nd wife can live in the 1st wife’s house knowing that it is not hers (2nd wife’s house). 56. PW6 Paul Patrick Tunoi adopted his witness statement dated 13th July 2022. He stated that he was an elder in the Kipsigis community and his position was that every wife should have her matrimonial home. 57. He also stated that according to Kipsigis Customary law and practice, when a 1st wife dies and a man remarries, he should establish a home for the new wife. Further, the place where the 1st wife is buried as per culture, is the property of the 1st wife such that when the 2nd wife passes on, she will not be buried in the 1st household’s home. That a house must be built for a second wife and that would be place of burial also. 58. Paul Tunoi further stated that in a polygamous set up, when a husband dies, he is buried in the 1st wife’s home which home would thereafter be inherited by the children of the 1st wife. He further stated that if an elder wife dies, she is buried outside her house within the compound. That traditionally, when a man marries another woman, she can live temporarily before the husband builds her own house as she cannot inherit the house or home of the 1st deceased wife. In addition, if the husband is dead, the house shall be built by her children. 59. In cross- examination, he stated that when the 1st wife dies, the kitchen is brought down after one year and a new one built. That the 2nd wife’s house is built outside the 1st wife’s compound. 60. PW7 Philip Kibet Langat adopted his witness statement filed on 7th November 2022 as his evidence in chief. He stated that he is the last born of the deceased and the 1st wife. It was his testimony that after the demise of his mother, the deceased married the widow and they lived together in their matrimonial home since the deceased did not build the widow a house of her own. 61. Philip averred that in the year 1985, the deceased told him in the presence of the late Simama Ngetich and the late Richard Langat that it was his wish as his last born son that he would remain in their matrimonial home. He stated that the deceased obeyed Kipsigis culture to the extent that when his (deceaseda’s) brother Marko Towett died having remarried and continued living in the 1st wife’s matrimonial home, the last son of Marko from the 1st wife was settled in the matrimonial home while the 2nd wife was moved to settle in her own matrimonial home outside the home of the 1st wife. Philip urged the court to adopt the deliberations of the clan meeting held on 25th July 2020. 62. On cross examination, he stated that he has had exclusive use of his 5 acres of land without interference and he wished to stay at the matrimonial home as per their father’s wishes. **ANALYSIS AND DETERMINATION** 63. The parties filed written submissions. The 1st Petitioner filed his written submissions dated 19th November 2024 and identified the following issues for determination: - i. Who should inherit the matrimonial home. ii. What acreage should Leonard Kipkorir Langat inherit and where. iii. What acreage should every daughter inherit. iv. Who should inherit the 2.5 acres of tea plantation on LR No. Kericho/Chemagel/133. v. How should the cash and the shares in the Standard Chartered Bank, Kericho be shared. vi. How should the heads of cows be shared. vii How should the shops at Sotik Town and Soymet Market be shared. viii How should the tractor plough and trailer be shared ix What should the surviving widow inherit. 64. The 2nd Petitioner filed his written submissions dated 13th December 2024 raising the following issues for determination: - i. Whether the proposed mode of distribution of the estate between the houses is fair. ii. Whether the 1st household should get a larger share of the estate. iii. Whether the 1st household is entitled to a share comprised of the matrimonial home. 65. Having considered the pleadings, the evidence on record, and the written submissions by the parties, I find the following issues for determination: - i. **Whether the deceased was polygamous and the applicable law in the distribution of his estate.** ii. **Who is entitled to inherit the matrimonial home.** iii. **How the immovable properties of the estate, including the commercial properties at Sotik Town and Soymet Market, should be distributed among the beneficiaries.** iv. **How the movable assets of the estate, including cash and shares at Standard Chartered Bank, cattle, and the tractor plough and trailer, should be distributed.** **v. What share of the estate the daughters of the deceased are entitled to.** **66. In deciding these issues, I take cognizance of the mediation agreement in which the parties agreed generally to confirm the settlements made by the deceased which qualify for gifts *inter vivos*.** **(i) Whether the deceased was polygamous and the applicable law in the distribution of his estate.** 67. The 1st Petitioner submitted that the deceased was not polygamous. That upon the death of his 1st wife and marrying the widow, he destroyed the 1st house and built the kitchen and matrimonial home where he lived with the widow (Ludiah) until his death. Further, that it was established that he was a Christian who married the widow under statute in a monogamous union. The 1st Petitioner argued that the applicable law is section 2(1) of the Law of succession Act which ousted customary law. That the deceased died after the Law of Succession Act came into operation. 68. They relied on the case of **Rono v Rono [2005] eKLR** where the Court of Appeal held that customary law was no longer applicable to persons dying after the commencement of the Law of Succession Act which ousted the operation of African Customary Law. He added that the estate should be distributed in accordance with Section 35 (1) and (5) of the Law of Succession Act. 69.The starting point in determining the appropriate mode of distribution of the estate is the applicable law governing intestate succession. It is not in dispute that the deceased died intestate on 24th May 2018. Consequently, the distribution of his estate is governed by the provisions of the Law of Succession Act (Kenya), which applies to all intestate estates of persons dying after its commencement. 70. There was much contestation whether the deceased was polygamous or not. The 1st Petitioner called evidence to demonstrate that the deceased first married Taprantich in 1945 and subsequently married Ludiah Towet in 1968 after Taprantich’s death. The 1st Petitioner’s witnesses also stated that the deceased being a Christian was not bound by the Kipsigis custom. 71. The 2nd Petitioner on the other hand was categorical that though the deceased’s first wife pre-deceased the marriage to the 2nd wife, the two women were “Sionik” meaning co-wives. They urged that there were two distinct households defined along the children of the two wives. 72. The evidence on record establishes that the deceased had married two wives Taprantich and Ludiah. Although the first wife pre-deceased the second marriage, the deceased nonetheless left behind children from both unions. By virtue of **Section 3(5) of the Law of Succession Act,** a woman married under a system that permits polygamy, and the children of such union, are recognized as dependants for purposes of succession even where the subsequent marriage was celebrated under statute. Consequently, the estate of the deceased must be treated as a **polygamous estate**. 73. The applicable provision governing distribution of intestate estates in polygamous families is **Section 40(1) of the Law of Succession 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.” (2) “The distribution of the personal and household effects and the residue of the net intestate estate within each house shall then be in accordance with the rules set out in Section 35 to 38”**. 74. In the instant case, the evidence shows that the deceased had thirteen children from the two houses and one surviving widow. The first house consists of six children while the second house consists of seven children together with the surviving widow. Applying Section 40(1), the second house would therefore have eight units while the first house would have six units. The estate should therefore be distributed proportionately based on these units unless there are special circumstances justifying a different arrangement. 75. The 2nd Petitioner submitted that the deceased was polygamous having married a first wife and the 2nd one being the widow who was married to the deceased in 1968 long after the land had been acquired and the loan fully paid off. That they ought to get a share which includes LR No. Kericho/ Chemagel/124 bought from the dowry of the married daughter Grace Cherono Soi and that of LR No. Kericho/Chemagel/139 measuring approximately 5 acres purchased from the proceeds of the dowry of their daughter Ruth Chepkurui Tonui in recognition of their substantial contribution towards acquisition of the land. He proposed that the remaining share be shared equally amongst all the beneficiaries in accordance with Section 40 (1) of the Law of Succession Act. He relied on the cases of **Rono v Rono KECA [2005] eKLR, Peter Kiiru Gathemba & 6 others v Margaret Wanjiku & Another Nairobi HCCA No. 167 of 1994, In Re Estate of Mariko Muthumbi Kiiru (Deceased) HCSC No. 2011 of 1997, Estate of Mwangi Giture (deceased) 2004 eKLR and In Re Estate of Samwel Miriti (Deceased) [2014] eKLR.** 76. The 2nd Petitioner urged the court to consider the proposed mode of distribution set out in the affidavit by the 2nd Petitioner dated 8th July 2021 which proposed equal distribution between the two households being 25 acres per family. 77. The 2nd Petitioner urged the court to adopt the position that the estate should be divided equally between the two houses based on Kipsigis customary law. However, the court cannot adopt that position for two reasons. First, the **Law of Succession Act** provides a comprehensive statutory framework for distribution of intestate estates and takes precedence over customary law where the deceased died after its commencement. Secondly, the Court of Appeal in **Rono v Rono & Another (Supra)** expressly held that customary principles that conflict with the statutory scheme of distribution under the Act cannot override the provisions of the Act. 78. In the circumstances of this case, the proposal by the 2nd Petitioner that the estate be divided equally between the two houses does not accord with the statutory framework under Section 40 of the Law of Succession Act. On the other hand, the approach urged by the 1st Petitioner, that the estate be distributed taking into account all beneficiaries as units within the meaning of the Act, is more consistent with the governing law. 79. Accordingly, I find that the fair and lawful mode of distribution of the estate must be guided by **Section 40 of the Law of Succession Act**, taking into account the number of children in each house together with the surviving widow as an additional unit, while also considering the particular circumstances of the beneficiaries and any prior settlement made by the deceased during his lifetime. **(ii) Which household is entitled to the matrimonial home.** 80. The second and most highly contested issue for determination concerns which household is entitled to the matrimonial home comprised in LR No. Kericho/Chemagel/133. The 1st Petitioner contends that the surviving widow, Ludiah Chepkoskei Towett, is entitled to the matrimonial home pursuant to Section 35 of the Law of Succession Act (Kenya), while the 2nd Petitioner argues that the matrimonial home properly belongs to the first household as it was acquired and established during the subsistence of the marriage between the deceased and the first wife. The 2nd Petitioner heavily relied on Kipsigis customary law for the proposition that each wife of a polygamous man must have her own house and homestead in the converse that a polygamous man must build a house for each of his wives. Several of the 2nd Petitioner’s witnesses told the court that that was the custom. 81. The 1st Petitioner urged that the deceased was not bound by custom. Ludia (the widow) testified before the court and bitterly complained that the house was hers and had raised the same children who wanted to evict her in it. She protested any suggestion that she could be built her own house with provision from the estate. She stated that at her age, she was not willing to move to another house. 82. It is not disputed that the first wife of the deceased, Taprantich Towett, was married to the deceased in 1945 under Kipsigis customary law and that several of the properties forming part of the estate, including the land on which the matrimonial home stands, were acquired between the years 1954 and 1965 during the subsistence of that marriage. The evidence by the 2nd Petitioner and his witnesses indicates that the first wife lived on the suit property together with the deceased and their children and that she was buried within the compound, thereby establishing the property as the matrimonial home of the first household. 83. I am persuaded that the 2nd Petitioner and his witnesses established through evidence that it was, and still is the custom of the Kipsigis that in a polygamous home, each wife must have their house and homestead. It is a legal principle that culture was acceptable under the Constitution with the only caveat being that it was not repugnant. I find nothing repugnant about the custom that each wife in a polygamous union must establish their home and homestead. To the contrary, it is a custom that guarantees autonomy, and I dare say, peace and harmony in a home. 84. Although the 1st Petitioner relies on Section 35 of the Law of Succession Act to argue that the surviving widow is entitled to the matrimonial home, that provision must be read in the context of the entire statutory framework governing intestate succession. Section 35 grants a surviving spouse a life interest in the residue of the estate but does not automatically confer exclusive ownership or permanent entitlement to a specific immovable property where circumstances demonstrate that the property constituted the matrimonial home of another household prior to the subsequent marriage. 85. In the present case, the evidence shows that the matrimonial home of the 1st wife and the deceased was established on LR No. Kericho/Chemagel/133 prior to the deceased’s subsequent marriage. The first wife lived on the land with her children and was buried there, thereby cementing its status as the homestead of the first household. While the widow later occupied the property together with the deceased, the historical evidence demonstrates that the property had already been established as the matrimonial home of the first household long before the second marriage. 86. I also take into account the fact that several members of the first household have maintained a strong connection with the homestead and that the burial sites of family members, including the first wife, are located on the property. To disregard these circumstances and allocate the property exclusively to the second household would not only undermine the historical character of the homestead but would also occasion injustice to the beneficiaries of the first household by oblitering the contribution and legacy of the 1st wife. 87. However, I have taken into consideration the fact that the widow has protested that she cannot be moved to a new house at her age. That she contends that the matrimonial home is the only one she has lived in since she got married. 88. While her protest is not unreasonable, it cannot also extinguish the deceased widow’s right which I have found established, and which in the circumstances of the case rightly passes on to her children. I therefore uphold her desire to continue occupying the matrimonial home. She shall hold a life interest in it and upon her demise, the same shall revert to the 1st household to be occupied by the last born son of the 1st wife being Philip Langat. 89. In the circumstances, I am persuaded that the matrimonial home which includes the house was established during the subsistence of the first marriage and therefore properly forms part of the share of the first household for purposes of distribution of the estate. 90. Accordingly, this I find that the matrimonial house comprised in LR No. Kericho/Chemagel/133 and part of the land rightly belongs to the first household. 91. Related to the above is the issue of the contribution of the deceased 1st wife. The 2nd Petitioner submitted that the 1st wife contributed largely to acquisition of the properties acquired between 1961 and 1965 and was therefore entitled to half of it. That her role in acquisition ought to be recognized as was established in the case ***of Kivuitu v Kivuitu [1990-1994] E.A 27 where the Court of Appeal*** held that **a spouse can acquire a beneficial interest in matrimonial property through contribution**, even if the property is registered in the other spouse’s name. 92. Courts have recognized that in determining the proper distribution of property in succession matters, the court must take into account the circumstances surrounding the acquisition and occupation of the property. 93. In addition, the court bears the discretion to determine equitable distribution based on the circumstances of each case as was re-affirmed by the Court of Appeal in **Rono V Rono [2005] eKLR** that the discretion donated by the Act in matters where dependants seek a fair distribution of the deceased’s net estate the discretion, like all discretions exercised by courts, must be made judicially or to put it another way, on sound legal and factual basis. 94. The Court of Appeal in **Rono v Rono & Another** (supra) clarified that although Section 40 introduces the principle of distribution based on the number of units in each house, the court retains discretion to ensure fairness and equity in the circumstances of each case. The court stated that equality of distribution does not necessarily mean mathematical equality, and the court must consider the particular circumstances of the family and the beneficiaries. 95. Similarly, in **In re Estate of Mwangi Giture (Deceased)** **[2004] KEHC 548 KLR**, Koome J. (as she was then) stated as follows: - **“According to me therefore, the law applicable is Cap 160 and Section 40 thereto that deals with a polygamous intestate. I understand the submissions by the 1st widow regarding equal sharing but in this respect the law is clearly set out and there is no way the court can disregard the provisions of the law and apply customary law in the fact of a written statute. Perhaps it is the high time, the commission charged with the responsibility of law reform addressed the issue of the inequality raised under Section 40 of Cap 160. The 1st widow’s entitlement vis a vis the 2nd widow or subsequent widow who perhaps come into a marriage much later to find that the 1st widow has worked tirelessly and sometimes denying herself tremendous comfort to enable her husband create and accumulate wealth. The 1st widow is then relegated to the same position by virtue of Section 40 of the Law of Succession to the same position as the last born child of the 2nd or subsequent widows. The widow is supposed to be considered as a unit alongside the children.’’** 96. I am persuaded by the argument of the 2nd Petitioner that their deceased mother’s contribution in which almost all the properties in the estate were acquired, must be given due recognition. In particular the properties acquired with dowry from the daughters of the 1st wife ought to be given recognition as is land that houses the home. I prepared to allocate a portion of Kericho/Chemagel/133 to a son of the 2nd household. 97. As per the Mediation Settlement Agreement dated 17th February 2022, Kenneth Kiptanui Langat, Leonard Kipkokir Langat, and the widow were allocated 5 acres each in LR. Kericho/Chemagel/133. That allocation locked out the 2nd household. They should get 5 acres also. **(iii**). **How the immovable properties of the estate, including the commercial properties at Sotik Town and Soymet Market, should be distributed among the beneficiaries.** **98. The 1st Petitioner in their submissions proposed that since the shops are co-owned, the deceased’s shares be sold and the proceeds be shared equally.The 2nd Petitioner did not address the issue of the shops.** **99. From the consent dated 29th January 2021, parties were in agreement that the rent collected from the shops be deposited in joint account in the names of the two administrators to hold the same in trust for all beneficiaries pending confirmation of grant.** 100. Given that the shops are commercial assets generating rental income, it is prudent to **preserve their value** and ensure equitable benefit to all beneficiaries. The existing consent to hold rent in a joint account demonstrates a mechanism for safeguarding the estate. There is no evidence that the 2nd Petitioner or her household objects to the sale or proceeds-sharing, and the 1st Petitioner’s proposal provides a clear and practical method of achieving fairness. 101. I therefore make orders that the deceased’s interest in the commercial shops be sold and the proceeds be shared equally among the beneficiaries. **(iv) How the movable assets of the estate, including cash and shares at Standard Chartered Bank, cattle, and the tractor plough and trailer, should be distributed.** **102. The 1st Petitioner submitted that the tractor plough and the trailer should be sold and the proceeds be shared equally amongst the beneficiaries. He submitted that the widow should inherit the cash at Standard Chartered Bank and she should also inherit the remaining cows for her upkeep.** **103. The 2nd Petitioner on his part proposed that the tractor and plough jembe be sold and the proceeds be shared equally between the two administrators on behalf of their respective household.** 104. Unlike land, these assets are **not readily divisible in specie** without affecting their value or utility. The proposals by both Petitioners agree in principle that the **tractor and associated equipment should be sold,** the only difference being whether the proceeds should be shared among **all beneficiaries individually** or **between the two houses**. 105. Given that the deceased had **two households**, and in light of the structure contemplated under Section 40 of the Law of Succession Act, it is appropriate that the movable assets be treated as **part of the residuary estate** and distributed **equitably between the two houses**, each house thereafter distributing its share among its members. 106. As regards the cows, the 1st Petitioner states that they were ten in number and that four beneficiaries namely: - Philip, Sammy, Kenneth, Nancy and Leonard had not received a cow each. I find that they should each be given a cow and the remaining cows shall go to the widow. 107. With regard to the shares at Standard Chartered Bank, the same shall be shared equally amongst the beneficiaries. 50% of the cash in the bank shall be solely for the widow’s upkeep while 50% shall be shared equally amongst all the children of the deceased. **What share the daughters of the deceased are entitled to.** 108. The final issue for determination concerns the entitlement of the daughters of the deceased to inherit from the estate, particularly in light of the evidence that the deceased made several *gifts inter vivos* to some of the beneficiaries during his lifetime. 109. The principle of equality among children is well expressed by Article 27 of the Constitution of Kenya which guarantees equality and freedom from discrimination, including discrimination on the basis of gender. Consequently, daughters are entitled to inherit from their father’s estate on an equal footing with sons. 110. However, the law also recognizes that a deceased person may have distributed part of his estate during his lifetime. Section 42 of the Law of Succession Act provides that where an intestate has, during his lifetime, given property to or settled property upon a child, that property shall be taken into account when determining the share of the net intestate estate accruing to that child. The purpose of the provision is to ensure fairness among beneficiaries by considering prior benefits received from the deceased. 111. The courts have consistently applied this principle. In **Rono v Rono** (supra), the Court of Appeal held that while the law envisages equal distribution among children, the court retains discretion to consider the circumstances of each case and the benefits already received by the beneficiaries, so as to achieve a fair and equitable outcome. 112. From the evidence on record, it is apparent that the deceased had settled a number of his children on various parcels of land during his lifetime. These include allocations of **Kericho/Chemagel/139, 124, 1771, 281, 1559, and 306**, where the respective beneficiaries have remained in occupation. In particular, I also note that Grace Cherono Soi was allocated LR No. Kericho/Chemagel/306 by the deceased during his lifetime, and she has continued to occupy the same. In accordance with Section 42 of the Law of Succession Act, that allocation must be taken into account in determining her entitlement from the remainder of the estate. 113. I also further note that the other daughters of the deceased, namely Nancy Chepkoech, Margaret Chepngeno Langat, and Joyce Chepngetich Korir, did not receive comparable allocations of land during the deceased’s lifetime. To exclude them from the remaining estate would therefore result in inequity and would be inconsistent with both the statutory framework and the constitutional principle of equality. 114. In the circumstances, and taking into account the principles of equality, the gifts made *inter vivos* by the deceased, and the need to ensure equitable distribution among the beneficiaries, I find as follows: - 1. Grace Cherono Soi shall retain LR No. Kericho/Chemagel/306, which was gifted to her by the deceased during his lifetime, and the same shall be taken into account as her share of the estate pursuant to Section 42 of the Law of Succession Act. 2. The parcel LR No. Kericho/Chemagel/4272 shall be shared equally among the daughters Nancy Chepkoech, Margaret Chepngeno Langat, and Joyce Chepngetich Korir. 115. In sum therefore, the estate is distributed as follows:- The parcel **LR No. Kericho/Chemagel/133**, which contains the family homestead, shall be subdivided as follows: - 1. **Kenneth Kiptanui Langat** shall receive **5 acres.** 2. **Leonard Kipkorir Langat** shall receive **5 acres**. 3. Philip Langat shall receive 5 acres. 4. **Ludia Chepkosgei Towett** shall receive **5 acres inclusive of the portion containing the tea plantation.** 5. The parcel LR No. Kericho/Chemagel/4272 shall be shared equally among Nancy Chepkoech, Margaret Chepngeno Langat, and Joyce Chepngetich Korir. 6. **Philip Kibet Langat** shall retain **2 acres out of LR No. Kericho/Chemagel/139.** He shall surrender 5 acres to the 1st household to be held jointly by the beneficiaries from that household. 7. **Sammy Chelule Langat** shall retain **6 acres from the same parcel**. f. **Peter Kiprono Langat** shall retain **LR No. Kericho/Chemagel/124 measuring approximately 9 acres**. g. The **estate of the late David Chelule Langat** shall retain **LR No. Kericho/Chemagel/1771 measuring approximately 5 acres** where he had been settled by the deceased. v. **Richard K. Cheruiyot Langat** shall retain **LR Nos. Kericho/Chemagel/281 and 1559**, the latter containing the shop premises. vi. **Grace Cherono Soi** shall retain **LR No. Kericho/Chemagel/306** which had been allocated to her by the deceased. vii. The parcel **LR No. Kericho/Chemagel/4272** shall be shared equally among the daughters **Nancy Chepkoech, Margaret Chepngeno Langat, and Joyce Chepngetich Korir.** viii**.** The parcel **LR No. Kericho/Chemagel/2470 measuring approximately 0.5 acres** shall be sold by the administrators and the proceeds applied towards the costs and expenses of the succession proceedings. ix.With regard to the commercial properties at **Sotik Town and Soymet Market**, the deceased’s shares therein shall be sold and the proceeds distributed equally among all the beneficiaries. Pending the sale, the existing arrangement whereby rent is deposited in a joint account held by the administrators shall remain in force. x. **Shares held at Standard Chartered Bank** shall be shared equally among all the beneficiaries. xi. 50% of the cash held at the at the Bank shall be the widow’s upkeep while 50% shall be shared equally amongst all children of the deceased. xii. The **tractor, plough and trailer** shall be sold and the proceeds shared equally between the two houses of the deceased. xiii. One cow each shall be given to Philip, Sammy, Kenneth and Leonard and any other child of the deceased who had not received one, and the remainder to the widow. 116. Both parties shall file a joint mode of distribution for confirmation by the court in conformity with this judgement. Orders accordingly. **Judgment delivered, dated and signed at Chuka this 5th day of August, 2026.** **..........................** **R. LAGAT-KORIR** **JUDGE** **Judgment delivered in the presence of Mr. Gachati for the 1st Petitioner and Mr. J.K. Koech for the 2nd Petitioner. Muriuki and Siele (Court Assistants).**