[2021] KEHC 9548 (KLR)
The court found that the Star of the Border Academy, being jointly registered in the names of the deceased and Ruth Susan Okinda, was not available for distribution as part of the deceased's estate due to the doctrine of survivorship. The deceased's intention to benefit Ruth Susan Okinda specifically was evident...
Source-derived case information.
- Citation
- [2021] KEHC 9548 (KLR)
- Parties
- Respondent: Ruth Susan Okinda; Applicant: Millicent Okinda; Applicant: Mercy Okinda; Applicant: Sabina Okinda
- Court
- High Court
- Court Station
- High Court at Busia
- Jurisdiction
- Kenya
- Case Number
- Probate & Administration 277 of 2013
- Procedural Posture
- Probate and Administration / Ruling on Distribution of Estate
- Outcome
- Partial grant; property excluded from estate; directions for distribution given.
- Judges
- KW Kiarie
- Legal Topics
- Intestate Succession, Polygamous Estates, Distribution of Estate, Joint Property, Contribution of Spouse
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Ruth Susan Okinda
Respondent
Millicent Okinda
Applicant
Mercy Okinda
Applicant
Sabina Okinda
Applicant
Procedural Posture
Probate and Administration / Ruling on Distribution of Estate
Legal Issues
- 1 Whether the Star of the Border Academy forms part of the deceased's estate available for distribution.
- 2 Whether the estate should be distributed according to section 40 of the Law of Succession Act without factoring in individual contributions.
- 3 How the estate of a polygamous intestate should be distributed among the surviving widows and children.
Ratio Decidendi
The court found that the Star of the Border Academy, being jointly registered in the names of the deceased and Ruth Susan Okinda, was not available for distribution as part of the deceased's estate due to the doctrine of survivorship. The deceased's intention to benefit Ruth Susan Okinda specifically was evident from the registration and the absence of any inclusion of the other widow. The remainder of the estate, given the polygamous nature of the marriage, was to be distributed in accordance with section 40 of the Law of Succession Act, which requires division among the houses based on the number of children in each house, with each surviving wife counted as an additional unit. The...
Court Disposition
Partial grant; property excluded from estate; directions for distribution given.
Orders
- The Star of the Border Academy is not available for distribution as part of the deceased's estate.
- The remainder of the estate shall be distributed in accordance with section 40 of the Law of Succession Act, factoring in any benefits given during the deceased's lifetime as per section 42.
Full Case Text
Judgment text and source record
34 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT BUSIA
PROBATE & ADMINISTRATION NO. 277 OF 2013
IN THE ESTATE OF:
ENOSH OKINDA NJOGA........................................................DECEASED
BETWEEN
RUTH SUSAN OKINDA............................PETITIONER/ RESPONDENT
AND
1. MILLICENT OKINDA
2. MERCY OKINDA
3. SABINA OKINDA....................................OBJECTORS/ APPLICANTS
RULING
1. Ruth Susan Okinda the petitioner/respondent herein and Millicent Okinda the 1st objector/applicant herein are widows of the late Enosh Okinda Njoga. They have disagreed on the mode of distribution of the estate.
2. According to the proposal by the objectors/applicants, the estate ought to be divided according to section 40 of the Law of Succession Act, without factoring in what each widow may have contributed.
3. On the other hand, the petitioner/applicant has contended that her contribution ought to be considered.
4. The deceased herein died intestate. This was a polygamous union. He was survived by the two widows and four children. The petitioner and the deceased had no child while the 1st objector/applicant and the deceased had four children.
5. The petitioner contended that she established the Star of the Border Academy while her deceased husband was a clerk with the Ministry of Water. She was a career teacher.
6. The evidence by the 1st objector was that by the time the land on which the school stands was bought and the school established, she was married.
7. Peterson Wachira (PW1) produced a certificate of registration in respect of the Star of the Border Academy. It was in the name of the deceased and Ruth Okinda. He also produced the authority from the ministry of Education dated 4th September 2000 which was addressed to Ruth Okinda.
8. From these documents we can be able to deduce that Ruth Okinda was actively involved in the establishment and the running of the school. It is also not lost that had the deceased intended to include Millicent Okinda, nothing could have been a hindrance. He simply intended this property to be Ruth’s.
9. There is evidence on record to show that Ruth Okinda was a career teacher. We cannot therefore wish away her role and contribution in the Star of the Border Academy.
10. I have been urged to find that this property is not available for distribution. The business was registered in the name of the deceased and Ruth Okinda. Had there been an intention to have shares, nothing would have hindered them to do so. The deceased knew at the time that he was polygamous and his action must have been deliberate. The doctrine of survivorship in respect of property held jointly is in favour of Ruth Okinda. I therefore find that this property is not available for distribution as part of the estate of the deceased.
11. The deceased was polygamous and his estate will be distributed in accordance with section 40 of the law of Succession Act which 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.
12. In this case, there shall be six units. The distribution shall factor any benefit the deceased had given to any beneficiary during his lifetime as envisaged under section 42 of the Law of Succession Act which provides as follows:
Where—
(a) an intestate has, during his lifetime or by will, paid, given or settled any property to or for the benefit of a child, grandchild or house; or
(b) property has been appointed or awarded to any child or grandchild under the provisions of section 26 or section 35 of this Act, that property shall be taken into account in determining the share of the net intestate estate finally accruing to the child, grandchild or house.
13. The petitioner is given 30 days within which to file proposed distribution in line with the above orders. Failure to do so, then the grant to her shall automatically be revoked.
14. Each party shall bear own costs.
DELIVERED and SIGNED at BUSIA this 27th day of January, 2021
KIARIE WAWERU KIARIE
JUDGE