https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7165

REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT KISUMU CIVIL APPEAL NO. E254 OF 2024 MARY ADHIAMBO ALI ………............................................. 1ST APPELLANT TIMOTHY OLWANDE ALI .................................................... 2ND APPELLANT - VERSUS - MILCAH AOKO AJUOGA ….............……......…...……… 1ST RESPONDENT PHENY AUMA ALI .............................................................. 2ND RESPONDENT MILLICENT ANYANGO ALI ............................................. 3RD RESPONDENT JAMES OTIENO ALI ........................................................... 4TH RESPONDENT RISPER OKOTA ALI ........................................................... 5TH RESPONDENT FILGONA NJIRA ALI .......................................................... 6TH RESPONDENT 1. The deceased Ibrahim Ali Reru alias Ali Reru died intestate on the J U D G M E N T 12/7/2007. The deceased had 8 wives and several children. The 1st – 4th respondents petitioned for and obtained Grant of Letters of Administration Intestate on the 3/3/2022. Vide an application dated 26/9/2022 they applied to have the same confirmed relying on a mode of distribution detailed in the supporting affidavit therein. Page 1 of 9 2. The 5th & 6th respondents then filed a Summons dated 13/10/2022 for revocation of the grant. The same was opposed by a replying affidavit sworn by the 1st petitioner. However, before the Summons could be determined, the parties entered into a consent on the 25/5/2023 allowing the said application and a fresh grant was issued to all the respondents herein. 3. The 5th and 6th respondent then filed an application dated 15/6/2023 seeking to set aside the consent order of 25/5/2023 on the grounds that the same was obtained without sufficient material being placed before the Court. They proposed that 4 new administrators be appointed to the estate of the deceased to represent the 8 houses, to wit; Milkah Aoko Ajuoga, James Otieno Ali, Timothy Alwande and James Jagero. The application was opposed by Grounds of Opposition and a Replying affidavit both dated 6/7/2023 and sworn by the 1st respondent. 4. By a ruling dated 28/9/2023, the trial court allowed the application and set aside the consent of 25/5/2023. The court implored the parties to enter into negotiations and settle the matter. Subsequently, by consent, the parties recorded a consent on the 25/1/2024 appointing Timothy Olwande & Milka Aoko as joint administrators of the deceased’s estate and the administrators were given two months to apply for confirmation. The said grant was amended again on the 12/6/2024 to add one Mary Adhiambo Ali as a 3rd administrator. Page 2 of 9 5. The 2nd administrator, Milcah Aoko Ajuoga filed Summons for Confirmation of Grant dated 25/3/2024 annexing a mode of distribution therein. The 1st and 3rd administrators filed their affidavits of protests dated 2/4/2024 and 21/6/2024, respectively. 6. The parties opted to proceed through filing written submissions in advancement of their respective positions and in the impugned ruling, the trial court adopted the mode of distribution advanced by the 2nd administrator, Milcah Aoko Ajuoga. 7. Being aggrieved by the said ruling, the appellants filed the present appeal vide a memorandum of appeal dated 3/12/2024 raising nine (9) grounds of appeal summarized as follows: - i) The trial court gravely misdirected itself in adopting the schedule of distribution attached to the 1st respondent’s Summons for Confirmation of grant without properly considering the relevant provisions of the law, particularly section 40 of the Law of Succession Act, Cap 160, and legal precedent. ii) The trial court gravely erred in fact and in law in finding and holding that the survey carried out by the 1st respondent followed the wishes of the deceased when it was clear the acreages contained in the said survey report did not reflect what the beneficiaries are Page 3 of 9 occupying on the ground, as some acreages have been exaggerated while some have been reduced. iii) The trial court gravely erred in finding and holding that the written submissions filed on behalf of the appellants were largely in agreement with those filed on behalf of the 1st respondent when in actual fact they contained different proposals for distribution. iv) The trial court gravely erred in law in failing to consider and take into account the mode of distribution made in the appellant’s submissions and further failing to give any reason for the rejection. v) The trial court ignored evidence that land parcel no. Kisumu/Koguta-West/153 was inherited and was already being occupied by Benter and Grace Odiyo the widows of Elly Odiyo who was one of the sons of the deceased and by adopting the mode of distribution proposed by the 1st respondent, they were disinherited from the deceased’s estate. vi) The distribution of the deceased’s estate by the trial court was vague, contradictory and convoluted and did not amount to a proper distribution of an intestate estate. 8. I have carefully considered the record and the submissions filed. This is a first appeal. It is settled law that the duty of the first appellate court is to re- Page 4 of 9 evaluate the evidence afresh and come up with its own independent findings and conclusions [see Peters v Sunday Post Limited [1958] E.A 424]. 9. What was before the trial court was the mode of distribution of the deceased’s estate. The matter was disposed off by way of submissions. I have considered the said competing submissions filed by the 1st respondent who was the petitioner and 2nd administrator, the 2nd appellant who was the 1st administrator/objector and the 1st appellant who was the 3rd administrator/objector. Therefore, the only thing emerging for determination is whether the trial court erred in the was it distributed the deceased’s estate. 10. The trial court adopted the mode of distribution proposed by the 1st respondent deeming it the most reasonable. 11. Before I proceed with my determination, I must note a few things that are paramount. It must not be lost on the parties that the primary duty of a Family Court is to identify the lawful beneficiaries, ascertain the assets and liabilities of the deceased and oversee the equitable transmission of the estate. 12. Consequently, where a court is faced with the task of ascertaining the assets alleged to belong to the deceased, the court must direct itself to ensure that the assets presented as belonging to the deceased do indeed belong to him. This is so because if a party alleges a parcel of land belongs to a deceased's Page 5 of 9 estate but fails to provide tangible evidence (such as official land searches, title deeds, or sale agreements), the court will have no basis superintending over the same. 13. I say so because, in the present case, there have been submissions on certain parcels as forming part of the deceased’s estate without any corresponding evidence such as copies of titles or land searches for the same. To my mind, these assets though listed by the parties herein have not been substantially proven to belong to the deceased’s estate. The Court must be certain that it is superintending over the free assets of the estate of the deceased. 14. To this end, it is discernible that the deceased herein died intestate survived by 8 wives of which 7 bore him multiple children with 1 dying before she bore the deceased any child. As regards the deceased’s assets, out of those listed in the P & A 5, only the following were proven to belong to the estate and therefore available for distribution: - i). Kisumu/W. Koguta/157 ii). Kisumu/ Koguta/163 iii). Kanyada/K/Katuma ‘B’/159 15. These are the only assets of the deceased that have been ascertained by this Court and which are up for distribution. As earlier stated hereinabove, it is not enough for parties to list assets alleged to belong to the deceased without corresponding evidence of the same. Page 6 of 9 16. Turning to the mode of distribution, the mode of distribution of Kisumu/W. Koguta/157 is not contested as it was stated to be the family homestead. The unanimous agreement from the submissions filed by the parties was that the home remains intact with each house maintaining the area already occupied. Accordingly, I shall not depart from that consensus. 17. As regards Kisumu/W. Koguta/163 the 1st respondent submitted that the same ought to be distributed to Julius Amba Ali, Joseph Akite Ali, Joseph Owino Ali & Wycliffe Okoth Ali while the 1st appellant submitted that Joseph Owino Ali ought to be exempted from benefitting from the same. 18. In light of the lack of consensus on the mode of distribution over Kisumu/W. Koguta/163, the said parcel shall devolve amongst the deceased’s beneficiaries in accordance with section 40 of the Law of Succession Act which provides interalia that the estate is divided between the "houses" (widows) based on the number of children in each house, with each surviving widow treated as an additional unit equal to that of a child. 19. In Mary Rono v Jane Rono and another [2005] eKLR Waki J.A stated inter alia that; - “More importantly, section 40 of the Act which applies to the estate makes provision for distribution of the net estate to the “houses according to the number of children in each house, but also adding any wife surviving the deceased as an additional unit to the number Page 7 of 9 of children.” A “house” in a polygamous setting is defined in section 3 of the Act as a “family unit comprising a wife and children” 20. Finally, as regards Kanyada/K/Katuma ‘B’/159, it is not clear whether it is the same as Homa Bay/Kotieno – Katuma/159 referred to by the parties in their submissions. There is need for ascertainment of the same for distribution to occur as prima facie these two parcels appear to be different. 21. The upshot of the above is that I find that the trial court erred in distributing the deceased’s estate. The appeal is hereby allowed and the judgment dated 5/11/2024 is set aside. 22. For avoidance of doubt, the ascertained assets of the deceased are distributed as follows; a) Kisumu/W. Koguta/157 – Being the family homestead, each house maintains the area already occupied. b) The matter is remitted back to the trial court to undertake re- distribution of all proven assets of the deceased, with copies of titles or searches, guided by section 40 of the Law of Succession Act equally to all the beneficiaries of the deceased, both children and the surviving widows, as follows: - i) All properties be ascertained and be valued appropriately. Page 8 of 9 ii) The distribution be undertaken taking into consideration the values of each property and share to each beneficiary. It is so ordered. DATED and DELIVERED at Kisumu this 15th day of May, 2026. A. MABEYA, FCI Arb JUDGE Page 9 of 9