[2015] KEHC 3770 (KLR)
The court found that, although the number of dependants and properties to be shared are not in dispute, the parties have failed to justify their proposed modes of distribution in the affidavits filed. Section 40 of the Law of Succession Act requires that the estate of a polygamist be distributed first among the...
Source-derived case information.
- Citation
- [2015] KEHC 3770 (KLR)
- Parties
- Applicant: Alice Chepkemoi Yosei; Applicant: Joseph Kipkorir Koskei; Respondent: Ruth Chemutai Yosei; Respondent: Esther Cherono Yosei
- Court
- High Court
- Court Station
- High Court at Kericho
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 158 of 2007
- Procedural Posture
- Succession Cause / Ruling on Mode of Distribution; Direction for Viva Voce Hearing
- Outcome
- Matter to proceed to hearing by viva voce evidence; no final distribution ordered.
- Legal Topics
- Succession, Polygamous Estates, Distribution of Estate, Dependants, Law of Succession Act, Viva Voce Evidence
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Alice Chepkemoi Yosei
Applicant
Joseph Kipkorir Koskei
Applicant
Ruth Chemutai Yosei
Respondent
Esther Cherono Yosei
Respondent
Procedural Posture
Succession Cause / Ruling on Mode of Distribution; Direction for Viva Voce Hearing
Legal Issues
- 1 How should the estate of a polygamist be distributed among the houses and dependants left behind.
- 2 Whether the affidavits and submissions filed provide sufficient justification for the proposed modes of distribution.
- 3 Whether the dispute on distribution can be resolved without viva voce evidence.
Ratio Decidendi
The court found that, although the number of dependants and properties to be shared are not in dispute, the parties have failed to justify their proposed modes of distribution in the affidavits filed. Section 40 of the Law of Succession Act requires that the estate of a polygamist be distributed first among the houses, and then among the children and any surviving widow in each house. Since there is no agreement between the parties and the justification for distribution is lacking, the court held that the dispute cannot be resolved on the basis of affidavits and submissions alone. The matter must therefore proceed to hearing by viva voce evidence, where beneficiaries can testify under...
Court Disposition
Matter to proceed to hearing by viva voce evidence; no final distribution ordered.
Orders
- The matter shall proceed to hearing by viva voce evidence.
Full Case Text
Judgment text and source record
27 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KERICHO
SUCCESSION CAUSE NO.158 OF 2007
IN THE MATTER OF THE ESTATE OF SOLOMON KIPKISKE A. YOSEI alias KIPKOSKE SOLOMON ARAP YOSE (DECEASED)
ALICE CHEPKEMOI YOSEI.....................................1ST PETITIONER
JOSEPH KIPKORIR KOSKEI.................................2ND PETITIONER
VERSUS
RUTH CHEMUTAI YOSEI............................................1ST OBJECTOR
ESTHER CHERONO YOSEI........................................2ND OBJECTOR
RULING
The Counsel appearing for the parties herein agreed to have the Court rely on the affidavits, modes of distribution and submissions filed to determine the distribution.
I have perused all the material before me.
It is clear there are four (4) houses left behind by the deceased.
The 1st house has twelve (12) dependants, same to the 4th house. The 2nd house has nine (9) dependants while the 3rd house has four (4) dependants. There is no dispute about the number of dependants, and the properties to be shared.
The dispute is the distribution of the estate.
Both Counsel have tried to explain the distribution through their submissions most likely based on their instructions.
There must be justification for any mode of distribution arrived at. This is lacking in the affidavits filed. Section 40 of the Law of Succession Act narrows down the distribution of the estate of a polygamist to each house first, then to the number of children in each house plus a surviving widow as an additional dependant.
If indeed the deceased had settled the houses and/or children this has to come out of the beneficiaries on oath and has to be tested through cross-examination.
Since the parties are not in agreement there is no short cut to this. The matter has to proceed to hearing by viva voce evidence. I so order.
Dated, signed and delivered in open court this 16th day of July, 2015.
H.I.ONG'UDI
JUDGE
In the presence of;
Mr. Koech for Objectors
Petitioners-absent
Mr. Kirui for Petitioners absent
Hillary and Kenei- court assistants