[2021] KEHC 5993 (KLR)
The court found that both the petitioners' and the protestor's proposed modes of distribution were inconsistent with section 40(1) of the Law of Succession Act, as they failed to distribute the estate among the houses of the polygamous deceased according to the statutory formula and discriminated against the widows...
Source-derived case information.
- Citation
- [2021] KEHC 5993 (KLR)
- Parties
- Applicant: Henry Odhiambo Epero; Applicant: Pascal Wennex Epero; Respondent: Charles Manyuru Epero
- Court
- High Court
- Court Station
- High Court at Busia
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 443 of 2013
- Procedural Posture
- Succession Cause / Ruling on Protest to Confirmation of Grant
- Outcome
- Grant not confirmed; parties directed to agree on lawful distribution or matter to be referred to public trustee.
- Legal Topics
- Intestate Succession, Polygamous Estates, Distribution of Estate, Rights of Widows and Children
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Henry Odhiambo Epero
Applicant
Pascal Wennex Epero
Applicant
Charles Manyuru Epero
Respondent
Procedural Posture
Succession Cause / Ruling on Protest to Confirmation of Grant
Legal Issues
- 1 Whether the proposed mode of distribution by the petitioners and the protestor complies with section 40(1) of the Law of Succession Act.
- 2 Whether non-beneficiaries, including alleged purchasers and extended family, can be included in the distribution of the estate.
- 3 Whether the grant can be confirmed in the absence of an agreed mode of distribution among all beneficiaries.
Ratio Decidendi
The court found that both the petitioners' and the protestor's proposed modes of distribution were inconsistent with section 40(1) of the Law of Succession Act, as they failed to distribute the estate among the houses of the polygamous deceased according to the statutory formula and discriminated against the widows and daughters. The inclusion of non-beneficiaries, such as extended family and alleged purchasers, was improper. The court held that the grant could not be confirmed as applied by either party. The parties were directed to reconsider and agree on a lawful mode of distribution within four months, failing which the matter would be referred to the public trustee for distribution...
Court Disposition
Grant not confirmed; parties directed to agree on lawful distribution or matter to be referred to public trustee.
Orders
- Parties to reconsider and agree on a mode of distribution within four months.
- No fresh summons for confirmation of grant to be filed until agreement is reached.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT BUSIA
SUCCESSION CAUSE NO.443 OF 2013
EPERO ARAPAI ICHOMOT.........................................................DECEASED
VERSUS
HENRY ODHIAMBO EPERO
PASCAL WENNEX EPERO...................................................PETITIONERS
AND
CHARLES MANYURU EPERO..............................................PROTESTOR
R U L I N G
[1] The subject grant of letters of administration intestate was issued to Henry Epero Odhiambo and Pascal Wenniex Epero (petitioners) on the 7th May 2014. They later sought to confirm the grant by taking out the necessary summons for confirmation of grant dated 10th February 2015. However, on the 11th September 2015, Charles Manyuru Epero (applicant/objector) filed an affidavit in protest to confirmation of the grant on the basis of the proposed mode of distribution.
[2]The protest comes with an alternative proposal on the mode of distribution thereby implying that the parties and the actual beneficiaries of the estate are yet to agree on the agreeable mode of distribution. In the circumstances, therefore, the summons for confirmation of grant was prematurely taken out by the petitioners. This means that the grant is not ripe for confirmation even if belatedly.
Be that as it may, the petitioner’s application for grant of letters of administration dated 25th November 2003, indicate that the deceased Epero Onapai Ichomoto was survived by a large number of beneficiaries whose relationship with him is not indicated. However, the chiefs letter dated 19th October 2012 showed that the deceased left behind three wives and several adult children. Those were the beneficiaries but the chiefs letter went further to include brothers and sisters of the deceased and their children as beneficiaries of his estate along with several people who had allegedly purchased part of the estate property which was a parcel of land described as South Teso/Chakol/785.
[3]In the summons for confirmation of grant, the petitioners proposed mode of distribution is completely inconsistent with the provisions of s.40 (1) of the Law of Succession Act which provides that:-
“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 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.”
[4]The deceased was a polygamist and this being an intestate succession the aforementioned provision of the Law had to be followed in any proposal for distribution of the estate. Apparently, this was not the case with the proposal made by the petitioner nor with that of the applicant/objector.
Both proposals are also not proportionate and clearly discriminative against the widows of the deceased and their daughters. Both proposals are, as it were, a men’s affair. Further to the foregoing, the two proposals appear to include persons who are not actual and true beneficiaries of the deceased.
[5] The deceased’s brothers and sister could not take precedence over his widows and children in the administration and distribution of his estate. The alleged purchasers of part of the estate could not be regarded as beneficiaries, if they did not purchase the land from the deceased and if any part thereof was sold to them prior to confirmation of this grant, then the purported sale was null and void. The only remedy was a civil suit against the purported vendors.
[6]In the course of the proceedings it has emerged that the first petitioner, Henry Odhiambo Egero is since deceased. In the circumstances, it would be prudent for all the beneficiaries to agree on a suitable substitute and make the necessary application if they deem it necessary. Under s.81 of the Law of Succession Act, upon the death of one of the administrators, all the powers and duties of the administrators become vested in the surviving administrator. Otherwise, it is this court’s opinion that in the prevailing circumstances of the case the grant cannot be confirmed as applied by the petitioners, neither can it be confirmed as proposed by the applicant.
[7]Accordingly, it is hereby directed that the parties do reconsider the matter and come up with an agreed mode of distribution before taking out any fresh summons for confirmation of grant and in any event within the next four (4) months from this date hereof. In default, the matter be referred forthwith to the office of the public trustee for necessary distribution of the estate in accordance with the Law.
Matter be mentioned on 29/9/2021 on the way forward and/or further orders.
J.R. KARANJAH
J U D G E
[READ AND SIGNED THIS 16TH DAY OF JUNE 2021]