[2019] KEHC 8531 (KLR)
The court found that only the petitioner/respondent and the objector/applicant, as the surviving widows, together with their respective children, were entitled to the deceased's estate. The claim regarding a third wife, Risper, was not substantiated, and even if she existed, there were no surviving children to...
Source-derived case information.
- Citation
- [2019] KEHC 8531 (KLR)
- Parties
- Respondent: Mathlida Adoyo Oduogo; Applicant: Justine Ajieke Oduogo
- Court
- High Court
- Court Station
- High Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 909 of 2004
- Procedural Posture
- Succession Cause / Judgment
- Outcome
- Estate distributed equally between petitioner and objector, each holding a life interest in half for the benefit of their respective children; each party to bear its own costs.
- Judges
- TW Cherere
- Legal Topics
- Succession, Distribution of Estate, Life Interest, Trust for Children
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Mathlida Adoyo Oduogo
Respondent
Justine Ajieke Oduogo
Applicant
Procedural Posture
Succession Cause / Judgment
Legal Issues
- 1 Whether the estate of the deceased should be distributed equally between the petitioner and the objector.
- 2 Whether any other beneficiaries, including a third alleged widow, are entitled to a share of the estate.
- 3 Whether any party is entitled to exclusive use of any property in the estate.
Ratio Decidendi
The court found that only the petitioner/respondent and the objector/applicant, as the surviving widows, together with their respective children, were entitled to the deceased's estate. The claim regarding a third wife, Risper, was not substantiated, and even if she existed, there were no surviving children to benefit. There was no evidence that any party had developed any of the properties to warrant exclusive allocation. The court held that justice required equal distribution of all identified estate properties between the petitioner and the objector, each holding their share in trust for their children, with a life interest for each widow in her respective half. The court also...
Court Disposition
Estate distributed equally between petitioner and objector, each holding a life interest in half for the benefit of their respective children; each party to bear its own costs.
Orders
- All listed land parcels to be distributed equally between Mathlida Adoyo Oduogo and Justine Ajieke Oduogo.
- Mathlida Adoyo Oduogo to hold a life interest in half of each property for the benefit of specified children in equal shares.
Full Case Text
Judgment text and source record
81 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT KISUMU
(CORAM: CHERERE-J)
SUCCESSION CAUSE NO. 909 OF 2004
IN THE MATTER OF THE ESTATE OF CORNEL ODUOGO NYAGAGA (DECEASED)
BETWEEN
MATHLIDA ADOYO ODUOGO.......................PETITIONER/RESPONDENT
AND
JUSTINE AJIEKE ODUOGO..................................OBJECTOR/APPLICANT
JUDGEMENT
Introduction
1. CORNEL ODUOGO NYAGAGA (deceased) died sometimes on 18th April, 1997. Deceased’s estate comprised of the following:
i. Land Parcel No.Kisumu/Koker Kajulu/2080
ii. Land Parcel No.Kisumu/Koker Kajulu/2064
iii. Land Parcel No.Kisumu/Koker Kajulu/2103
iv. Land Parcel No.Kisumu/Koker Kajulu/2108
v. Land Parcel No.Kisumu/Koker Kajulu/2119
vi. Land Parcel No.Kisumu/Koker Kajulu/2828
vii. Land Parcel No.Kisumu/Koker/Kajulu/2832
2. Letters of administration were issued in Petitioner’s favour on 16th March, 2007. The grant was confirmed on 5th October, 2005 in favor of the Petitioner/Respondent in the whole of the following properties:
Land Parcel No.Kisumu/Koker/Kajulu/2108
Land Parcel No.Kisumu/Koker/Kajulu/2828
Land Parcel No.Kisumu/Koker/Kajulu/2832
Application
3. The applicant/objector filed an affidavit in support of revocation on 7th October, 2015. On 8th October, 2015, Mr. Anyul advocate for the petitioner/respondent conceded to the revocation. The court consequently revoked the grant issued to the petitioner/respondent on 8th October, 2015 and issued letters of administration to both parties on 8th January, 2016.
4. The dispute before the court relates to distribution of the deceased’s estate.
Objector/Applicant’s Case
5. In her evidence, the applicant/objector stated that the deceased was survived by children and two widows, petitioner/respondent the eldest wife and herself the youngest wife the second namely Risper having died. Her evidence was that the deceased owned other properties other than the seven (7) named at paragraph one hereinabove but she did not tender evidence in support thereof. I will therefore address myself to what has been demonstrated to belong to the deceased. The applicant/objector proposed that the estate be distributed as follows:
i. Land Parcel No.Kisumu/Koker Kajulu/2080- equal share between petitioner and objector
ii. Land Parcel No.Kisumu/Koker Kajulu/2064- equal share between petitioner and objector
iii. Land Parcel No.Kisumu/Koker/Kajulu/2108 – (homestead) -Equally between the three widows to the deceased
iv. Land Parcel No.Kisumu/Koker Kajulu/2828 - wholly to the applicant/objector
v. Land Parcel No.Kisumu/Koker/Kajulu/2832 wholly to the applicant/objector
6. The Applicant/Objector did not make any proposal in respect of land parcel numbers:
i. Kisumu/Koker Kajulu/2119
ii. Kisumu/Koker Kajulu/2828
Petitioner/Respondent’s Case
7. The petitioner stated that she was the 1st widow of the deceased whereas the Applicant/Objector was the second. She denied that deceased was married to one Risper as alleged by the Applicant/Objector.
8. The Petitioner/Respondent proposed that the estate be distributed in equal shares between her and the objector to hold in trust for their children.
Analysis and Determination
9. I have considered the evidence on record. As stated hereinabove, the dispute before the court relates to distribution of the deceased’s estate.
10. The issue of whether the deceased had a wife namely Risper is denied by the Petitioner/Respondent. But even if such a wife existed, it is averred by the Applicant/Objector that the said Risper died without a child to whom distribution can be made. Distribution shall therefore be made only to the Applicant/Objector and Petitioner/Respondent and their children.
11. The parties have conceded that they have settled on Land Parcel No. Kisumu/Koker Kajulu/2108(homestead). There is no evidence that any of the parties has developed any of the other properties as to entitle them to exclusive use of the same.
12. Having said that, I find that the interests of justice dictates that the estate be distributed in equal shares as between the petitioner and the objector to hold in trust for their children.
Disposition
13. In the result, the court makes orders THAT:-
(a)
i. Land Parcel No. Kisumu/Koker Kajulu/2080
ii. Land Parcel No. Kisumu/Koker Kajulu/2064
iii. Land Parcel No. Kisumu/Koker Kajulu/2103
iv. Land Parcel No. Kisumu/Koker Kajulu/2108 (homestead)
v. Land Parcel No. Kisumu/Koker Kajulu/2119
vi. Land Parcel No. Kisumu/Koker Kajulu/2828
vii. Land Parcel No. Kisumu/Koker/Kajulu/2832
shall be distributed equally between the Petitioner/RespondentMATHLIDA ADOYO ODUOGOand Applicant/ObjectorJUSTINE AJIEKE ODUOGO.
(b). MATHLIDA ADOYO ODUOGO shall hold a life interest in half of each for the properties for the benefit of the following in equal shares:
i. Francisca Amolo
ii. Michael Onyango and Cynthia Anyango children of Romanus Bwana (deceased)
iii. Adhiambo and Akoth Anyango children of Rose Atieno (deceased)
iv. Carolyne, Lilian and Molly Anyango children of Milka Akinyi (deceased)
v. Phelix Otieno s/o Charles Otieno (deceased)
vi. George Odhiambo
vii. Bernard Onyango
viii. Penina Auma
(c) JUSTINE AJIEKE ODUOGO shall hold a life interest in half of each for the properties for the benefit of the following in equal shares:
i. Caleb Ochieng Oduogo
ii. Jared Owino Oduogo
iii. Hassan Mwiyi Oduogo
iv. Amos Odinga Oduogo
v. Pamella Adhiambo Oduogo
vi. Nancy d/o Ascar Akinyi Oduogo (deceased)
(d) Each party shall bear its own costs
DELIVERED AND SIGNED AT KISUMU THIS 14th DAY OF March 2019
T. W. CHERERE
JUDGE
READ IN OPEN COURT IN THE PRESENCE OF-
Court Assistant - Felix
Petitioner/Respondent- Present
For Petitioner/Respondent - Mr Othong/Mr Anyul
Objector/Applicant - Present