https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6833

In re Estate of Ngeno (Deceased) (Succession Cause 3 of 2019) [2026] KEHC 6833 (KLR) (20 May 2026) (Ruling) Neutral citation: [2026] KEHC 6833 (KLR) Republic of Kenya In the High Court at Bomet Succession Cause 3 of 2019 JK Ng'arng'ar, J May 20, 2026 IN THE MATTER OF THE ESTATE OF JULIUS CHERUIYOT NGENO (DECEASED). Between David Kimutai Cheruiyot Applicant and Davis Kiprono Cheruiyot Respondent Ruling 1.This is a fairly old matter whose history had been aptly captured by this court in its earlier Rulings. What remained is for the deceased’s estate to be distributed. DIVISION - Application dated 23rd January 2026 2.The 2nd Petitioner filed the referenced Application seeking confirmation of the Grant. The 2nd Petitioner stated that the deceased was survived by the following: -i.David Kimutai Cheruiyot.ii.Jane Chepkemoi.iii.Charles Cheruiyot (deceased and survived by his children).iv.Hellen Cherono.v.Evalyne Chemutai.vi.Joyce Chepkoech.vii.Raymond Cheruiyot.viii.Martin Cheruiyot.ix.Joan Chelangat.x.Davis Kipronoh Cheruiyot.xi.Denis Kiplangat Cheruiyot.xii.Norman Kipkirui Cheruiyot.xiii.Diana Cheronoh. 3.The 2nd Petitioner stated that the deceased’s estate comprised of the following: -i.KerichoKimulot/146.ii.KerichoKimulot/147.iii.KerichoKimulot/11.iv.Kimulot Market Plot No. 35.v.Kimulot Market Plot No. 1.vi.Shares-partner In The Property Soy & Others In Kericho Town.vii.Kericho Town Plot With Residential Houses.viii.Kapset Market Plot.ix.Sotik Town Plot.x.Shares at KTDA-Kapset Tea Factory.xi.Shares at Konoin Sacco.xii.Shares at Kimbilio Daima Sacco.xiii.Nakuru/Olenguruone/Kiptagich/Blockxiv.Motor Vehicle Registration Number KBE xxxU.xv.Motor Vehicle Registration Number KAM xxxD. 4.The 2nd Petitioner’s proposed mode of distribution was as follows: -KerichoKimulot/146 30% Joint Ownership 70% Joint Ownership David Kimutai CheruiyotRaymond CheruiyotJane Chepkemoi Children of Charles CheruiyotHellen CheronoEvalyne ChemutaiJoyce ChepkoechMartin Cheruiyot Joan ChelangatDavis Kiprono CheruiyotDenis Kiplangat CheruiyotNorman K. CheruiyotDiana Cheronoh KerichoKimulot/147 30% Joint Ownership 70% Joint Ownership David Kimutai CheruiyotRaymond CheruiyotJane ChepkemoiChildren of Charles CheruiyotHellen CheronoEvalyne ChemutaiJoyce ChepkoechMartin Cheruiyot Joan ChelangatDavis Kiprono CheruiyotDenis Kiplangat CheruiyotNorman K. CheruiyotDiana Cheronoh KerichoKimulot/11 30% Joint Ownership 70% Joint Ownership David Kimutai CheruiyotRaymond CheruiyotJane Chepkemoi Hellen CheronoChildren of Charles CheruiyotEvalyne ChemutaiJoyce ChepkoechMartin Cheruiyot Joan ChelangatDavis Kiprono CheruiyotDenis Kiplangat CheruiyotNorman K. CheruiyotDiana Cheronoh Kimulot Market Plot No. 35 30% Joint Ownership 70% Joint Ownership David Kimutai CheruiyotRaymond CheruiyotJane Chepkemoi Hellen CheronoChildren of Charles CheruiyotEvalyne ChemutaiJoyce ChepkoechMartin Cheruiyot Joan ChelangatDavis Kiprono CheruiyotDenis Kiplangat CheruiyotNorman K. CheruiyotDiana Cheronoh Kericho Market Plot No. 1 30% Joint Ownership 70% Joint Ownership David Kimutai CheruiyotRaymond CheruiyotJane Chepkemoi Hellen CheronoChildren of Charles CheruiyotEvalyne ChemutaiJoyce ChepkoechMartin Cheruiyot Joan ChelangatDavis Kiprono CheruiyotDenis Kiplangat CheruiyotNorman K. CheruiyotDiana Cheronoh Shares Partner In Property Soy & Others In Kericho Town 30% Joint Ownership 70% Joint Ownership David Kimutai CheruiyotRaymond CheruiyotJane Chepkemoi Hellen CheronoChildren of Charles CheruiyotEvalyne ChemutaiJoyce ChepkoechMartin Cheruiyot Joan ChelangatDavis Kiprono CheruiyotDenis Kiplangat CheruiyotNorman K. CheruiyotDiana Cheronoh Kericho Town Plot With Residential Houses 30% of the plot and the residential houses to be jointly owned 70% of the plot and the residential houses to be jointly owned David Kimutai CheruiyotRaymond CheruiyotJane Chepkemoi Hellen CheronoChildren of Charles CheruiyotEvalyne ChemutaiJoyce ChepkoechMartin Cheruiyot Joan ChelangatDavis Kiprono CheruiyotDenis Kiplangat CheruiyotNorman K. CheruiyotDiana Cheronoh Kapset Market Plot 30% to own jointly 70% to own jointly David Kimutai CheruiyotRaymond CheruiyotJane Chepkemoi Hellen CheronoChildren of Charles CheruiyotEvalyne ChemutaiJoyce ChepkoechMartin Cheruiyot Joan ChelangatDavis Kiprono CheruiyotDenis Kiplangat CheruiyotNorman K. CheruiyotDiana Cheronoh Sotik Town Plot 30% to own jointly 70% to own jointly David Kimutai CheruiyotRaymond CheruiyotJane Chepkemoi Hellen CheronoChildren of Charles CheruiyotEvalyne ChemutaiJoyce ChepkoechMartin Cheruiyot Joan ChelangatDavis Kiprono CheruiyotDenis Kiplangat CheruiyotNorman K. CheruiyotDiana Cheronoh Shares at Ktda-kapset Tea Factory 30% Joint Ownership 70% Joint Ownership David Kimutai CheruiyotRaymond CheruiyotJane Chepkemoi Hellen CheronoChildren of Charles CheruiyotEvalyne ChemutaiJoyce ChepkoechMartin Cheruiyot Joan ChelangatDavis Kiprono CheruiyotDenis Kiplangat CheruiyotNorman K. CheruiyotDiana Cheronoh Shares at Konoin Sacco 30% Joint Ownership 70% Joint Ownership David Kimutai CheruiyotRaymond CheruiyotJane Chepkemoi Hellen CheronoChildren of Charles CheruiyotEvalyne ChemutaiJoyce ChepkoechMartin Cheruiyot Joan ChelangatDavis Kiprono CheruiyotDenis Kiplangat CheruiyotNorman K. CheruiyotDiana Cheronoh Shares at Kimbilio Daima Sacco 30% Joint Ownership 70% Joint Ownership David Kimutai CheruiyotRaymond CheruiyotJane Chepkemoi Hellen CheronoChildren of Charles CheruiyotEvalyne ChemutaiJoyce ChepkoechMartin Cheruiyot Joan ChelangatDavis Kiprono CheruiyotDenis Kiplangat CheruiyotNorman K. CheruiyotDiana Cheronoh Motor Vehicle Registration Number KBE xxxU To share equally 30% of the sale proceeds To share equally 70% of the sale proceeds David Kimutai CheruiyotRaymond CheruiyotJane Chepkemoi Hellen CheronoChildren of Charles CheruiyotEvalyne ChemutaiJoyce ChepkoechMartin Cheruiyot Joan ChelangatDavis Kiprono CheruiyotDenis Kiplangat CheruiyotNorman K. CheruiyotDiana Cheronoh Motor Vehicle Registration Number KAM xxxD To share equally 30% of the sale proceeds To share equally 70% of the sale proceeds David Kimutai CheruiyotRaymond CheruiyotJane Chepkemoi Hellen CheronoChildren of Charles CheruiyotEvalyne ChemutaiJoyce ChepkoechMartin Cheruiyot Joan ChelangatDavis Kiprono CheruiyotDenis Kiplangat CheruiyotNorman K. CheruiyotDiana Cheronoh Nakuru/Olenguruone/Kiptagich/Block 30% Joint Ownership 70% Joint Ownership David Kimutai CheruiyotRaymond CheruiyotJane Chepkemoi Hellen CheronoChildren of Charles CheruiyotEvalyne ChemutaiJoyce ChepkoechMartin Cheruiyot Joan ChelangatDavis Kiprono CheruiyotDenis Kiplangat CheruiyotNorman K. CheruiyotDiana Cheronoh 5.It was the 2nd Petitioner’s case that his proposed mode of distribution was in the interest of justice because the children from the 1st household had since the death of the deceased enjoyed the estate exclusively leaving them out. That the distribution would advance equality, equity and a non-discriminative sharing. It was the 2nd Petitioner’s further case that beneficiaries from the 2nd household were equally entitled to enjoy the deceased’s estate. 6.The Petitioner stated that the 1st household were not keen on sharing the deceased’s estate. The Petitioner further stated that it was necessary that 2 acres of land around the deceased’s grave be excised and preserved. ResponseSUBDIVISION - Notice of Motion Application dated 9th April 2026 7.The 1st Petitioner sought orders to exclude from the deceased’s estate properties that were matrimonial property belonging to the deceased and his mother Zadie Ngeno (deceased). 8.Through his Supporting Affidavit dated 9th April 2026, the 1st Petitioner stated that he was from the 1st household and was not consulted before the Summons for Confirmation Application was filed. That the consent to the mode of distribution had not been signed by all the beneficiaries and that he disputed the 2nd Petitioner’s proposed mode of distribution. 9.It was the 1st Petitioner’s case that some of the listed properties in the 2nd Petitioner’s proposed mode of distribution did not constitute the deceased’s free property under section 3 of the Law of Succession Act as some were matrimonial property and some were not registered in the deceased’s name. It was the 1st Petitioner’s further case that most properties were acquired during the subsistence of a Christian monogamous marriage between the deceased and his lawful wife, Zadie Ngeno and were thus matrimonial property and they included: -i.KerichoKimulot/146 (acquired around the year 1977)ii.KerichoKimulot/147 (acquired around the year 1973)iii.KerichoKimulot/11 (acquired around the year 1970)iv.Commercial Plot No. 1 at Kimulot Shops (acquired around 1959).v.Commercial Plot in Kericho town owned by Soi & others Partnership (acquired around 1967).vi.Sotik plot (acquired around 1963)vii.Kapset Plot, Shares at Kapset Tea factory and Shares at Konoin Saccp, Shares at Kimbilio Daima Sacco. 10.The 1st Petitioner stated that the following the acquisition of KerichoKimulot/146, his parents established their matrimonial home and planted tea bushes. That his mother made non-monetary and monetary contributions. The 1st Petitioner stated that during his lifetime, the deceased settled his children from his wife Zadie Ngeno on their respective portions. 11.It was the 1st Petitioner’s case that he constructed his matrimonial home in the year 1990 where he has lived with his family which now included grandchildren. That his deceased brother Charles Cheruiyot planted tea bushes on KerichoKimulot/147. It was the 1st Petitioner’s further case that his brothers Raymond Kipchirchir Cheruiyot and Martin Cheruiyot planted tea bushes and established their homestead on KerichoKimulot/11 and KerichoKimulot/146. 12.The 1st Petitioner stated that with the permission of the partners in Soi & others Partnership, Raymond and Jane Chepkemoi constructed permanent structures on the Kericho Plot. The 1st Petitioner further stated that motor vehicles registration numbers KAM xxxD and KBE xxxU did not form part of the deceased’s estate Affidavit of Protest dated 29th April 2026 13.The grounds contained in this Protest were similar to the grounds listed above. The 1st Petitioner additionally stated that the Kericho Town Plot With Residential Houses And Nakuru/Olenguruone/Kiptagich/197 did not form part of the deceased’s estate as they were registered to Jane Chepkemboi Ngeno and Joyce Chepkoech Ngeno respectively. 14.The 1st Petitioner’s proposed mode of distribution was as follows: - Property Heirs Consideration KerichoKimulot/146 Emily Cherotich, Hellen Cherono, Evalyne Chemutai, Joyce Chepkoech Ngeno, David Kimutai Cheruiyot, Raymond Kipchirchir Cheruiyot, Jane Chepkemoi, Sally Chelangat in trust for the dependants of Charles Cheruiyot (deceased) and Martin Cheruiyot. 1st wife’s contribution and heirs settled during the deceased’s lifetime KerichoKimulot/147 Emily Cherotich, Hellen Cherono, Evalyne Chemutai, Joyce Chepkoech Ngeno, David Kimutai Cheruiyot, Raymond Kipchirchir Cheruiyot, Jane Chepkemoi, Sally Chelangat in trust for the dependants of Charles Cheruiyot (deceased) and Martin Cheruiyot. 1st wife’s contribution and heirs settled during the deceased’s lifetime KerichoKimulot/11 Emily Cherotich, Hellen Cherono, Evalyne Chemutai, Joyce Chepkoech Ngeno, David Kimutai Cheruiyot, Raymond Kipchirchir Cheruiyot, Jane Chepkemoi, Sally Chelangat in trust for the dependants of Charles Cheruiyot (deceased) and Martin Cheruiyot. 1st wife’s contribution and heirs settled during the deceased’s lifetime Kimulot Market Plot No. 35 1st House – 70%2nd House – 30% Shares In Kimulot Market Plot No.1 Emily Cherotich, Hellen Cherono, Evalyne Chemutai, Joyce Chepkoech Ngeno, David Kimutai Cheruiyot, Raymond Kipchirchir Cheruiyot, Jane Chepkemoi, Sally Chelangat in trust for the dependants of Charles Cheruiyot (deceased) and Martin Cheruiyot. 1st wife’s contribution Shares In Property Soy & Others Emily Cherotich, Hellen Cherono, Evalyne Chemutai, Joyce Chepkoech Ngeno, David Kimutai Cheruiyot, Raymond Kipchirchir Cheruiyot, Jane Chepkemoi, Sally Chelangat in trust for the dependants of Charles Cheruiyot (deceased) and Martin Cheruiyot. 1st wife’s contribution and heirs settled during the deceased’s lifetime. KAPSET PLOT 1st House – 70%2nd House – 30% 1 Share Sotik Town Plot Emily Cherotich, Hellen Cherono, Evalyne Chemutai, Joyce Chepkoech Ngeno, David Kimutai Cheruiyot, Raymond Kipchirchir Cheruiyot, Jane Chepkemoi, Sally Chelangat in trust for the dependants of Charles Cheruiyot (deceased) and Martin Cheruiyot. 1st wife’s contribution and heirs settled during deceased’s lifetime. Shares At Kapset Tea Factory, Konoin Sacco And Kimbilio Daima Sacco 1st House – 70%2nd House – 30% 15.Through his written submissions dated 29th April 2026, the 1st Petitioner submitted that some properties were acquired during the subsistence of the 1st marriage and were available to the children of the 1st marriage by operation of a constructive trust. That this court had the jurisdiction to determine the question of constructive trust. He relied re Estate of M’Mkiriti Mbwiria (Deceased) (Succession Cause 345 of 2015) [2022] KEHC 14239 (KLR). The 1st Petitioner further submitted that by entering into a monogamous marriage with the 1st wife, neither of them intended to enter into another marriage unless the first one was extinguished by dissolution or death. 16.It was the 1st Petitioner’s submission that the 1st wife’s contribution prior to the marriage of the 2nd wife was intended to be advantageous to the 1st household. It was the 1st Petitioner’s further submission that the deceased had settled his children during his lifetime and he relied on section 42 of the Law of Succession Act and re Estate of Ruth Wanjiku Karugu (2021) eKLR. Response 17.Through his Grounds of Opposition and Replying Affidavit all dated 28th April 2026, the 2nd Petitioner stated that this court lacked jurisdiction to determine the 1st Petitioner’s claim which revolved around matrimonial property as the same was governed under the Matrimonial Property Act 2013. That the present suit was governed by the Law of Succession Act. The 2nd Petitioner further stated that the 1st Petitioner lacked locus standi as he was neither a spouse of party capable of enforcing matrimonial rights. 18.It was the 2nd Petitioner’s case that the properties were registered in the deceased’s name and after his death were free property available for distribution. It was the 2nd Petitioner’s further case that the 1st Petitioner was misguided that the entire deceased’s estate belonged to the 1st household. 19.The 2nd Petitioner stated that the right to a matrimonial property was a personal right (in personam) which arose out of a dissolution of marriage by divorce and did not survive the death of the spouse. That the 1st Petitioner had brought the Application with the intent of disinheriting the 2nd household. The 2nd Petitioner further stated that even if certain assets were acquired during the deceased’s first marriage, once he contracted the second marriage, his estate became a polygamous one for the purpose of succession and all his beneficiaries had equal rights of inheritance. 20.It was the 2nd Petitioner’s case that the present Application was an attempt to re-open and re-litigate issues on dependency which had been dealt with by this court. That it was not true that the deceased had settled all his children during his lifetime. It was the 2nd Petitioner’s further case that no property was registered in the 1st Petitioner’s name and that KerichoKimulot/146 and 147 were the deceased’s properties. 21.The 2nd Petitioner stated that the 1st Petitioner had tried to change the ownership of the deceased’s properties and was charged with intermeddling. The 2nd Petitioner further stated that the deceased’s estate was to be shared amongst all the beneficiaries. 22.It was the 2nd Petitioner’s case that Rule 41(3) of the Probate and Administration Rules did not apply in this case as there was no issue regarding the identity or share of the deceased’s estate. That the issue of settled beneficiaries did not arise. 23.Through his written submissions dated 28th April 2026, the 2nd Petitioner submitted that the 1st Petitioner sought to re-open and re-litigate issues that had been conclusively determined by this court. That the Application was thus incompetent and bad in law. He relied on Jane Florence Maritime Services Ltd & another v Cabinet Secretary for Transport and Infrastructure & 3 others (2015) eKLR et.al. 24.It was the 2nd Petitioner’s submission that this court lacked jurisdiction to entertain the Application as it was premised on matrimonial property. He relied on section 17 of the Matrimonial Property Act, Rule 4 of the Matrimonial Property Rules and Julius Kamau vs Waruguru Kithaka Nyaga & 2 others (2013) eKLR. It was the 2nd Petitioner’s further submission that matrimonial property rights were strictly personal and were subject to spouses and the 1st household lacked locus standi. That they did not survive the death of both spouses. He relied on FEO v ACO (sued as co-administrator of the Estate of the late BPO) [2024] KEHC 14889 (KLR). 25.The 2nd Petitioner submitted that the 1st household lacked locus standi to assert trust over the entire deceased’s estate to the exclusion of the 2nd household as the claim would contradict the core principles of the Law of Succession Act. He relied on JM v SMK & 4 others [2022] KEHC 2265 (KLR). That Rule 41(3) of the Probate and Administration Rules did not apply in the instant suit. 26.It was the 2nd Petitioner’s submission that the listed properties constituted the free estate of the deceased and was available for distribution to all the beneficiaries. It was the 2nd Petitioner’s further submission that he had complied with section 71 of the Law of Succession Act by disclosing the deceased’s estate fully. He relied on Nanzala v Mulunda [2023] KEHC 20341 (KLR). That the 1st household had declined to sign the consent forms. The 2nd Petitioner asked this court to adopt his proposed mode of distribution. 27.I have gone through the Summons for Confirmation of Grant dated 23rd January 2026, the Notice of Motion Application dated 9th April 2026, the Affidavit of Protest dated 29th April 2026, the 2nd Petitioner’s Grounds of Opposition and Replying Affidavit both dated 28th April 2026, the 1st Petitioner’s written submissions dated 29th April 2026 and the 2nd Petitioner’s written submissions dated 28th April 2026. I have distilled two issues for my determination: -i.Whether the deceased’s estate comprised of matrimonial property or free property for distribution.ii.What was the just mode of distribution i. Whether the deceased’s estate comprised of matrimonial property for distribution. 28.The 1st Petitioner asked this court to disregard some of the properties contained in the 2nd Petitioner’s proposed mode of distribution as they were matrimonial property. He stated that the properties were acquired by the deceased and his late mother during the subsistence of their marriage and before the second wife was married. On the other hand, the 2nd Petitioner stated that the deceased’s estate comprised of free property that was available for distribution. 29.The Matrimonial Property Act is defined as an Act of Parliament to provide for the rights and responsibilities of spouses in relation to matrimonial property and for connected purposes (Emphasis mine) 30.Section 17 of the Matrimonial Property Act provides: -(1)A person may apply to a court for a declaration of rights to any property that is contested between that person and a spouse or a former spouse of the person.(2)An application under subsection (1)—(a)shall be made in accordance with such procedure as may be prescribed;(b)may be made as part of a petition in a matrimonial cause; and(c)may be made notwithstanding that a petition has not been filed under any law relating to matrimonial causes 31.Rule 4 of the Matrimonial Property Rules provide: -Any person, including the following persons, may institute civil proceedings claiming any right or relief in relation to matrimonial property—(a)a spouse;(b)any person against whom a spouse has made a conflicting claim in respect of property; and(c)a trustee in bankruptcy, an executor under a will or other testamentary grant, an administrator or a personal representative, of the estate of a spouse for an order or declaration relating to the status, ownership, vesting, or possession of any specific property by, or for the beneficial interest of, a spouse or former spouse. 32.In FEO v ACO (Sued as Co-Administratrix of the Estate of the Late BPO) [2024] KEHC 14889 (KLR), the court extensively expressed itself on the axis between inheritance and matrimonial property, which I agree with, to wit: -“The Matrimonial Property Rules, under Rules 4 and 5, envisage the mounting of a suit for determination of rights, over property acquired by either spouse during the currency of their marriage, for the purpose of division, upon dissolution of a marriage by a decree of divorce. Such proceedings could be by or against a spouse in a subsisting marriage or a former spouse. Section 7 of the Matrimonial Property Act envisages division of matrimonial property upon divorce or dissolution of the marriage. There is no mention, in these provisions, of declaration of rights over or division of matrimonial property being sought upon the death of a spouse. In the absence of that, there would be no basis for inviting the court to determine matrimonial property rights where there is no decree of divorce, or upon the demise of a spouse…….………… The Law of Succession Act does not address matrimonial property rights, for the said law is silent on matrimonial property, and rights accruing from such property. Indeed, the concept of matrimonial property is alien to the law of succession, for neither the Law of Succession Act, nor the Common Law on succession and the African customary law of succession provide for it. Based on that, it is an issue that the probate court should not countenance……………….. I do not, with respect, agree with that position, and I expressed my views on it, in In re Estate of Tsimango Akafwale (Deceased) [2021] eKLR (Musyoka, J), where I stated that at succession, the issues are around inheritance rights and not matrimonial property rights, for the ideal situation should be that matrimonial property rights ought to be asserted during the lifetime of the other spouse, for the contest over matrimonial property ought to be between the 2 spouses. I expressed that it would be unfair, in my view, to require children to contend with the surviving spouse, over the entitlement of that spouse, to certain assets of the estate, as matrimonial property, at distribution in probate proceedings. I argued that the tension, between the matrimonial property rights of a surviving spouse and the inheritance rights of the children, over estate property, should be avoided, and the property treated strictly as property available for distribution in succession, without considering matrimonial property rights. For where such rights existed, ideally, they ought to have been asserted, and the matter determined, prior to the demise of the other spouse.” 33.It is clear from the above that matrimonial property rights are between spouses and such rights are enforceable during the lifetime of both spouses in the event of a dissolution of marriage through death or divorce. It is not in doubt that the deceased and the 1st wife were both deceased. I agree with the 2nd Petitioner that the 1st Petitioner lacked locus standi to ask this court to determine the matrimonial property rights over his deceased parents. If anything, such matrimonial property rights ought to have been determined during the deceased’s lifetime. In the present case, such rights were not determined. 34.The 1st Petitioner claimed constructive trust. The Supreme Court of Kenya in Shah & 7 others v Mombasa Bricks & Tiles Limited & 5 others [2023] KESC 106 (KLR) defined constructive trust as: -“………..A constructive trust was an equitable instrument which served the purpose of preventing unjust enrichment. Trusts were created either expressly, where the trust property, its purpose and the beneficiaries were clearly stated, or established by the operation of the law. Like in the instant case, where it was not expressly stated, the trust may be established by operation of the law.A constructive trust was a right traceable from the doctrines of equity. It arose in connection with the legal title to property when a party conducted himself in a manner to deny the other party beneficial interest in the property acquired. A constructive trust would thus automatically arise where a person who was already a trustee took advantage of his position for his own benefit…….” 35.Having found that the issue of matrimonial property did not apply in the instant case, the plea of constructive trust equally fails. It is trite that the work of a probate court is to distribute the free estate of a deceased. Attempting to determine the issue of constructive trust would be overstepping this court’s jurisdiction. 36.In regards to the identification of the deceased’s estate, both Petitioners were in agreement that the deceased’s estate comprised of the following: -i.KerichoKimulot/146.ii.KerichoKimulot/147.iii.KerichoKimulot/11.iv.Kimulot Market Plot No. 35.v.Kimulot Market Plot No. 1.vi.Shares-partner In The Property Soy & Others.vii.Kapset Market Plot.viii.Sotik Town Plot.ix.Shares At Ktda-kapset Tea Factory.x.Shares At Konoin Sacco.xi.Shares At Kimbilio Daima Sacco. 37.The 1st Petitioner stated that Kericho Town Plot With Residential Houses, Nakuru/Olenguruone/Kiptagich/197, Motor Vehicle Registration Number KBE xxxU and Motor Vehicle Registration Number KAM xxxD were not part of the deceased’s estate. He further stated that the Kericho Town Plot With Residential Houses was registered in the name of Jane Chepkemboi Ngeno, Nakuru/Olenguruone/Kiptagich/197 was registered in the name of Joyce Chepkoech Ngeno, Motor Vehicle Registration Number KBE xxxU was registered in the name of David Kimutai Cheruiyot and Motor Vehicle Registration Number KAM xxxD was unknown. 38.The 1st Petitioner attached Title Deeds for Kericho Town Plot With Residential Houses, Nakuru/Olenguruone/Kiptagich/197 and a copy of the logbook for Motor Vehicle Registration Number KBE xxxU. I have looked at the exhibits and they confirmed that they were independently owned as they were not registered in the deceased’s name. It is my finding therefore that they did not form part of the deceased’s estate. 39.Flowing from the above, it is my finding that the properties listed in paragraph 36 above formed part of the deceased’s estate and they are free for distribution. ii. What is the just mode of distribution 40.It was an uncontested fact that the deceased was polygamous. Section 40 of the Law of Succession Act provides: -(1)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 sections 35 to 38. 41.The Court of Appeal in Elizabeth Chepkoech Salat v Josephine Chesang Chepkwony Salat [2015] KECA 650 (KLR) held: -“Section 40 of the Act does not give discretion to a court to deviate from the general principles therein enunciated. Where a matter is contentious and the parties have not reached a consent judgment, the court is bound to apply the statutory provisions. More specifically, the court has no power to substitute the statutory principles for its own notion of what is an equitable or just decision. However, court has a limited residuary discretion within the statutory provisions to make adjustments to the share of each house or of a beneficiary where, for instance, the deceased had during his lifetime settled any property to a house or beneficiary or to decide which property should be disposed of to pay liabilities of the estate or to determine which properties should be retained by each house or several houses in trust.As this Court said in Mary Rono v. Jane Rono & Another, Civil Appeal No. 66 of 2002 (Eldoret) [2005] eKLR, section 40 does not provide for equality between houses or that each child must receive the same or equal portion…” (Emphasis mine) 42.Similarly, the Court of Appeal in Scolastica Ndululu Suva v Agnes Nthenya Suva [2019] KECA 1053 (KLR) stated: -“In Mary Rono vs Jane Rono & another (supra), Waki JA in the leading judgment, accepted the proposition that the Court had the discretion in ensuring a fair distribution of the deceased’s estate but that the discretion must be exercised judicially on sound legal and factual basis.……..It is therefore evident, that, although section 40 of the Law of Succession Act provides a general provision for the distribution of the estate of a polygamous deceased person, the court has discretion to take into account factual circumstances of the particular case that may be relevant in ensuring equitable and fair distribution of the estate.” 43.I also concur with the sentiments of Odunga J. (as he then was) in re Estate of Nzolove Kisuke alias Daudi Nzolove Kisuke (Deceased) [2022] KEHC 1495 (KLR), where he held: -“It is therefore clear on judicial authority that the strict application of section 40 of the Law of Succession Act may well lead to an absurdity and I associate myself with the opinion of the Court of Appeal that the said section only provides a general provision for the distribution of the estate of a polygamous deceased person. However, the court has discretion to take into account factual circumstances of the particular case that may be relevant in ensuring equitable and fair distribution of the estate……..” 44.I have taken consideration of the fact that most of the properties that form the deceased’s estate were acquired during the subsistence of the marriage between the deceased and his first wife (deceased). This however did not mean that the 2nd household were to be excluded from distribution as per the 1st Petitioner’s proposal. The law as per section 29 of the Law of Succession Act recognized them as dependants. Having considered the pleadings as a whole and in the interests of justice and doing the best I can, the deceased’s estate is to be distributed as follows: -i.KerichoKimulot/146To be shared equally among the two householdsii.KerichoKimulot/147To be shared equally among the two householdsiii.Kimulot Market Plot No. 35To be shared equally among the two householdsiv.Shares In Property Soy & Others, Shares In Konoin Sacco, Shares In Kimbilio Daima Sacco And Shares In Ktda (kapset Tea Factory)To be shared equally among the two householdsv.Kimulot Market Plot Number 1 100% ownership by the 1st householdvi.Sotik Town Plot 100% ownership by the 1st householdvii.KerichoKimulot/11 100% ownership by the 2nd householdviii.Kapset Market Plot 100% ownership by the 2nd household 45.A Certificate of Confirmation to issue. RULING DELIVERED, DATED AND SIGNED at BOMET THIS 20TH DAY OF MAY, 2026..................................HON. JULIUS K. NG’ARNG’ARJUDGERuling delivered in the presence of:Kiamba Mbithi for Co-administratorKiget holding brief for Arusei for Administrator/PetitionerSiele/Susan (Court Assistants)