[2023] KEHC 23641 (KLR)
The court held that section 40 of the Law of Succession Act requires the estate of a polygamous intestate to be distributed among the houses based on the number of children and surviving wives. However, the court recognized that strict mathematical equality is not always practical, especially where the deceased had...
Source-derived case information.
- Citation
- [2023] KEHC 23641 (KLR)
- Parties
- Petitioner: Daniel Kipchumba Keter; Objector: Benjamin Kiprotich Keter
- Court
- High Court
- Court Station
- High Court at Eldoret
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 332 of 2015
- Procedural Posture
- Succession Cause / Ruling on Confirmation of Grant and Distribution of Estate
- Outcome
- proposed mode of distribution allowed and confirmed
- Judges
- RN Nyakundi
- Legal Topics
- Succession, Intestate Distribution, Polygamous Estates, Confirmation of Grant
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Daniel Kipchumba Keter
Petitioner
Benjamin Kiprotich Keter
Objector
Procedural Posture
Succession Cause / Ruling on Confirmation of Grant and Distribution of Estate
Legal Issues
- 1 Whether the proposed mode of distribution of the deceased's estate among the houses complies with section 40 of the Law of Succession Act.
- 2 Whether the distribution should strictly follow mathematical equality or allow for practical considerations based on occupation and location of parcels.
- 3 Whether the court should confirm the proposed distribution in the absence of contest.
Ratio Decidendi
The court held that section 40 of the Law of Succession Act requires the estate of a polygamous intestate to be distributed among the houses based on the number of children and surviving wives. However, the court recognized that strict mathematical equality is not always practical, especially where the deceased had already positioned his families on specific parcels during his lifetime. The court found the proposed mode of distribution to be fair, uncontested, and consistent with both the statutory framework and the realities on the ground. Accordingly, the court confirmed the distribution as proposed by the 2nd and 3rd houses, finding it to be in tandem with the law and the interests of...
Court Disposition
proposed mode of distribution allowed and confirmed
Orders
- The proposed mode of distribution by the 2nd and 3rd houses dated March 24, 2023 is allowed and confirmed.
- The estate shall be distributed in accordance with the confirmed mode of distribution.
Full Case Text
Judgment text and source record
27 paragraphs
In re Estate of James Kipketer Rono (Deceased) (Succession Cause 332 of 2015) [2023] KEHC 23641 (KLR) (17 October 2023) (Ruling)
Neutral citation: [2023] KEHC 23641 (KLR)
Republic of Kenya
In the High Court at Eldoret
Succession Cause 332 of 2015
RN Nyakundi, J
October 17, 2023
IN THE MATTER OF THE ESTATE OF JAMES KIPKETER RONO (DECEASED)
Between
Daniel Kipchumba Keter
Petitioner
and
Benjamin Kiprotich Keter
Objector
Ruling
1. The court confirmed the amended grant of letters of administration intestate and issued the certificate of confirmation of grant on November 25, 2022. Vide an order dated March 27, 2023, the court directed the county surveyor to visit the estate and undertake a survey of the estate. The county surveyor filed a report on July 31, 2023. The findings of the report were as follows;Findings on parcel No Nandi/Chepkumia/91 The land is on occupation by the families of Leah Rono (parcel A) and Esther Rono (parcel B) separated by the red line on the attached plan.
The total acreage for the parcel was found to be 38. 92acres (15. 75 ha).Each family occupies as follows.
Parcel Family/Occupant Area in acres Area in hectaresaLeah Rono (3rd house) 20. 37 8. 24bEsther Rono( 1st house) 18. 55 7. 51Findings on parcel No Nandi/Chepkumia/1181. The land is on occupation by the family of Eveline Rono (2nd house)
There is an even width road passing through the land which was picked and plotted as shown by the red lines.(see attached plan)
The total acreage for the land was found to be 44. 63 acres.(18. 062 ha)
Each of the family members occupies the land as follows (parcel indicated by the red lines, see attached plan)
Parcel Occupant Area in acres Area in hectaresaPaulo Kipruto 10. 93 4. 43bThomas Kiptoo Keter 13. 03 5. 27cJoel Kipchumba Keter 10. 10 4. 09dFamily 1. 52 0. 615e.Trucila Jelagat 6. 90 2. 79fa)Alice Cheseremb)Mary Jerubet(Deceased) 1. 74 0. 704c)Sarah Jematiad)Julia Jemeli
2. The proposed mode of distribution by the 2nd and 3rd houses was as follows;1. Cheptiret/Cheplaskei Block 5 (Chemenei) 13- 2. 71 Ha (6. 70 Acres).To be shared among members of the 3rd House. This is Uncontested.2. Nandi/Chepkumia/1181 - 17. 6 Ha(43. 49 Acres )To be shared among members of the 2nd House as follows;i.Trusila Chelagat Daughter 7 Acresii.Paulo Kipruto Keter Son 11. 167 Acresiii.Thomas Kiptoo Keter Son 11. 167 Acresiv.Joel Kipchumba Keter Son 11. 167 Acresv.Sally Chepkosgei Daughter 0. 5 Acresvi.Sara Chematia Daughter 0. 5 Acresvii.Jebet for Mary Cherubet Deceased 0. 5 Acresviii.Julia Chemeli Daughter 0. 5 Acresix.Alice Cheserem Daughter 0. 5 Acres3. Nandi/Chepkumia/91 - 15. 5 HA(38. 30 Acres)To be shared equally among the 1st and 3rd Houses.4. Chepkumia Centre Plot No 4 - 100 x 50 FeetTo be shared equally among the 2nd and 3rd Houses.5. Kibung’u Centre Plot No 1 - 100 X 50 FeetFor the 1st house. Uncontested.6. Kibung’u Centre Plot No 4 - 50x 50 FeetFor the 1st House. Uncontested.7. Kibung’u Centre Plot No 5 - 100 X 50 FeetFor the 1st house. Uncontested.8. Posho Mill-piston Machine9. Chaff Cutter10. 2 Animal Grinding MachineCan be allotted to the 1st House11. Funds at National Bank of Kenya Account No xxxxxxxxxxxxx – will be shared amongst the dependants equally.
3. I am alive to the provisions of section 40 of the Law of Succession Act which provides as follows;(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.
4. In applying this provision, it should be noted that the court takes into consideration the families that the deceased left behind and that in his lifetime, he had positioned them on his properties which form part of the estate. Whereas the legal requirement is that the property comprising the estate of the deceased should be distributed equally, it is in the interests of justice to apply this provision in a sensible manner. By this I mean that where the acreage of the property is close to an exact or precise portion of the estate, the same is not to be applied with mathematical strictness. Keeping this in mind, together with the fact that there is no contest as to the proposed mode of distribution, it is my considered view that the proposed mode of distribution is in tandem with the statutory provisions. Given the location of the parcels, it is my considered view that the family members will have no difficulty in ensuring each member gets the portions as proposed in the mode of distribution.
5. I hereby allow the proposed mode of distribution by the 2nd and 3rd houses dated March 24, 2023.
DELIVERED, DATED AND SIGNED AT ELDORET ON THIS 17TH DAY OF OCTOBER 2023In the Presence ofMr. Daniel KipchumbaJane Kipkoech…………………………………..R. NYAKUNDIJUDGE