[2014] KEHC 4406 (KLR)
The court found that both parties agreed in principle that the estate should be shared equally between the two houses, consistent with Section 40 of the Law of Succession Act, which governs the distribution of property in polygamous families. The court noted that the clan elders' attempts to distribute the estate...
Source-derived case information.
- Citation
- [2014] KEHC 4406 (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 / Ruling on Confirmation of Grant and Protest
- Outcome
- grant confirmed; estate distributed equally between the two houses; each party to bear own costs
- Judges
- JK Sergon
- Legal Topics
- Succession of Estates, Distribution of Property, Customary Law Inheritance
- 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 / Ruling on Confirmation of Grant and Protest
Legal Issues
- 1 Whether the estate of Loise Tapkigen Malit should be distributed according to the applicant's or protestor's proposed schedule.
- 2 Whether the distribution should follow Kipsigis customary law or statutory law under the Law of Succession Act.
- 3 How to equitably distribute the estate among the beneficiaries from both houses.
Ratio Decidendi
The court found that both parties agreed in principle that the estate should be shared equally between the two houses, consistent with Section 40 of the Law of Succession Act, which governs the distribution of property in polygamous families. The court noted that the clan elders' attempts to distribute the estate were unsuccessful and that the deceased had no biological children but had married two women to continue her lineage according to Kipsigis custom. The court held that each house should receive an equal share of the estate, specifically 2.1 hectares each, and that each beneficiary within a house should receive an equal portion of that house's entitlement. The court directed that...
Court Disposition
grant confirmed; estate distributed equally between the two houses; each party to bear own costs
Orders
- The grant is confirmed.
- The estate is distributed as follows: 1st house - 2.1 hectares; 2nd house - 2.1 hectares.
Full Case Text
Judgment text and source record
47 paragraphs
IN THE HIGH COURT OF KENYA AT KERICHO
SUCCESSION CAUSE NO.66 OF 2009
IN THE MATTER OF ESTATE OF LOISE TAPKIGEN MALIT
alias TAPKIGEN W/O MALIT – (DECEASED)
AND
EMILY CHEPKOECH alias
EMILY CHEPKOECH CHUMO - APPLICANT
VERSUS
PRISCILLA MALIT - PROTESTOR
RULING
The subject matter of this ruling is the summons for confirmation of grant dated 27th November 2013 taken out by Emily Chepkoech Malit alias Emily Chepkoech Chumo, hereinafter referred to as the Applicant and the protest filed by Priscilla Malit, hereinafter referred to as the Protestor. When the dispute came up for hearing, this court directed it to be disposed of by affidavit evidence and by written submissions.
I have considered the schedule of distribution proposed by the Applicant and that proposed by the Protestor. I have also considered the rival written submissions. The Applicant proposed for the Estate to be distributed as follows:
FIRST HOUSE
NAME PROPERTYSHARE OF HEIR
Johana Kipkemoi Chepkwony Ker/Kabianga/1292 0. 525 HA
Emily Chepkoech Malit alias
Emily Chepkoech Chumo Ker/Kabianga/1292 0. 525 HA
Philip Kiptanui Chepkwony Ker/Kabianga/1292 O.525 HA
Johnstone Kipsigei Chepkwony Ker/Kabianga/1292 0. 525 HA
SECOND HOUSE
NAME PROPERTY SHARE OF HEIR
Priscilla Malit Ker/Kabianga/1292 2. 1 HA
In her affidavit of Protest, the Protestor opposed the Applicant’s schedule of distribution and proposed for the Estate to be distributed as follows:
1st house - 2. 1 HA.
2nd house - 2. 3 HA.
It is the submissions of the Protestor that her proposal is in terms of the mutual agreement made before the clan elders. The Protestor claimed that the village elders took into account the developments she had put up in the land.
After a careful consideration of the rival proposals, it is clear in my mind that the clan elders attempted in vain to distribute the Estate. There is no doubt that the late Loise Tapkigen Malit alias Tapkigen W/O Malit died without having children of her own. According to the Kipsigis Customs such a person is allowed to marry another woman to bear children to keep her lineage alive. In this cause, there is no dispute that the deceased married two women namely: Jane Chepngeno Malit (now deceased) representing the first house and Priscilla Malit, the 2nd house. The deceased’s first wife had four children namely:
Johana Chepkwony
Emily Chepkoech Chumo
Philip Chepkwony
Johnstone Chepkwony
The deceased’s second wife i.e. Priscilla Malit had the following children:
Kennedy Chepkwony
Lily Cherop
Bernard Kipyegon Chepkwony
Eric Chepkwony
Cherotich Malit
The Applicant and the Protestor appear to agree that the deceased’s Estate be shared equally between the houses. The proposal is in line with the provisions of Section 40 of the Law of Succession Act. In the end the grant is confirmed and the Estate is distributed as follows:
1st House - 2. 1 Hectares.
2nd House - 2. 1 Hectares.
Each beneficiary in a house to get an equal share of their entitlement and this directive should be clearly shown in the schedule of distribution to be specified in a further affidavit. Each party to meet her own costs.
Dated, signed and delivered in open court at Kericho this 30th day of May, 2014.
J. K. SERGON
JUDGE
In the presence of:
Applicant: present in person.
Protestor: present in person.