[2014] KEHC 4131 (KLR)
The court found that the applicant's further affidavit did not fully comply with the court's directive of 30th May 2014 or with Section 40 of the Law of Succession Act, as it failed to specify the shares due to each beneficiary in the second house and did not account for the statutory mode of distribution. The court...
Source-derived case information.
- Citation
- [2014] KEHC 4131 (KLR)
- Parties
- Applicant: Emily Chepkoech alias Emily Chepkoech Chumo; Respondent: Priscilla Malit
- Court
- High Court
- Court Station
- High Court at Kericho
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 66 of 2009
- Procedural Posture
- Succession Cause / Confirmation of Grant and Distribution of Estate
- Outcome
- Grant confirmed and estate distributed as per court order.
- Legal Topics
- Succession of Estates, Distribution of Property, Life Interest, Confirmation of Grant
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Emily Chepkoech alias Emily Chepkoech Chumo
Applicant
Priscilla Malit
Respondent
Procedural Posture
Succession Cause / Confirmation of Grant and Distribution of Estate
Legal Issues
- 1 Whether the further affidavit filed by the applicant complied with the court's directive of 30th May 2014 regarding the specific shares due to each beneficiary.
- 2 How the estate of the deceased should be distributed in accordance with Section 40 of the Law of Succession Act.
- 3 Whether the widow is entitled to a life interest in the estate under Section 36 of the Law of Succession Act.
Ratio Decidendi
The court found that the applicant's further affidavit did not fully comply with the court's directive of 30th May 2014 or with Section 40 of the Law of Succession Act, as it failed to specify the shares due to each beneficiary in the second house and did not account for the statutory mode of distribution. The court exercised its inherent power to confirm the grant and ordered the distribution of L.R. No. Kericho/Kabianga/1292 in accordance with the law, allocating specific acreages to each beneficiary in both houses and granting the widow a life interest in her share, as required by statute.
Court Disposition
Grant confirmed and estate distributed as per court order.
Orders
- The grant is confirmed.
- Distribution of L.R. No. Kericho/Kabianga/1292 to be done as specified: 2.1 Ha to the first house divided equally among four beneficiaries; 2.1 Ha to the second house divided equally among six beneficiaries, with the widow receiving a life interest in her share.
Full Case Text
Judgment text and source record
35 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KERICHO
SUCCESSION CAUSE NO.66 OF 2009
IN THE MATTER OF ESTATE OF LOISE TAPKIGEN MALIT
aliasTAPKIGEN W/O MALIT (DECEASED)
AND
EMILY CHEPKOECH alias
EMILY CHEPKOECH CHUMO.................APPLICANT
VERSUS
PRISCILLA MALIT..................PROTESTOR
RULING
On 30th May 2014, this court delivered a ruling in which it directed that the grant be confirmed and the Estate distributed equally between the two houses. The parties were then directed to file a further affidavit containing the specific share due to each beneficiary. In compliance with the aforesaid directive, Emily Chepkoech Malit alias Emily Chepkoech Chumo the applicant herein, filed a further affidavit sworn on 30th May 2014.
The file was placed before this court for mention on 1st July 2014 for further orders and directions. I have critically examined the aforesaid further affidavit. In paragraph 2 the beneficiaries are clearly named. There is no doubt each house was to get 2. 1 Hectares to be excised from L.R. No.Kericho/Kabianga/1292. The Applicant has clearly shown the acreage due to each beneficiary in the first house but has merely suggested that the portion due to the second house be registered in the name of Priscilla Malit, the protestor. That affidavit does not fully comply with this court’s directive of 30th May 2014 and the same does not also comply with the provisions of Section 40 of the Law of Succession Act. Under Section 40, distribution should be done among the houses according to the number of children in each house and adding the surviving widow as a unit. Pursuant to the provisions of Section 36 (1) as read with Section 36 (3) of the Law of Succession Act, the widow is only entitled to life interest which automatically determines if she remarries. Having failed to give a further affidavit which conforms with this court order this court has no option but to make a definite order in exercise of its inherent power. Consequently I order that the grant be confirmed and distribution of L.R. No. Kericho/Kabianga/1292 be done as follows:
1ST HOUSE – (2. 1 HA)
Name Acreage
Johana Kipkemoi Chepkwony 0. 525 Ha.
Emily Chepkoech Chumo
Alias Emily Chepkoech Malit 0. 525 Ha.
Philip Kiptanui Chepkwony 0. 525 Ha.
Johnstone Kipsigei Chepkwony 0. 525 Ha.
2ND HOUSE – (2. 1 HA)
Name Acreage
Priscilla Malit (life Interest) 0. 35 Ha.
Kennedy Chepkwony 0. 35 Ha.
Lily Cherop 0. 35 Ha.
Bernard Kipyegon Chepkwony 0. 35 Ha.
Eric Chepkwony 0. 35 Ha.
Cherotich Malit 0. 35 Ha.
Dated, signed and delivered in open court this 4th day of July 2014
J. K. SERGON
JUDGE
In the presence of:
Applicant: present in person
Protestor: present in person
Other beneficiaries,