[2024] KEHC 3421 (KLR)

In re Estate of Johanna Kipruto Mosonik (Deceased) (Probate & Administration 348 of 2013) [2024] KEHC 3421 (KLR) (11 April 2024) (Ruling)

Neutral citation: [2024] KEHC 3421 (KLR)

Republic of Kenya

In the High Court at Eldoret

Probate & Administration 348 of 2013

RN Nyakundi, J

April 11, 2024

In the matter of

Sarah Jepkemoi Mosnik

Petitioner

Ruling

1. What is pending in this matter is the distribution of the estate. The petitioner is the 2nd widow to the deceased and the Grant of Letters of Administration of the estate intestate were granted to her on 17. 03. 2014. Further, the same have been pending confirmation. The probate is uncontested as the application for revocation of grant dated 7th may 2015 was dismissed for want of prosecution.

2. The deceased was survived by the following beneficiaries;1st House1. Ruth Mosonik (Deceased) 1st Widow2. Leah Tuwei (Deceased)3. Daniel Kipng’eno Ruto (Deceased)4. Willy Kipkemboi Ruto (Deceased)5. Joseph Ruto (Deceased)6. Sarah Maritim7. David Kiplagat Mosonik8. Rebecca Jepkirui Kipruto9. Richard Kipkirui Ruto10. Isaiah Ruto Mosonik11. Emily Jelagat Mosonik2nd House1. Sarah Jepkemboi Mosonik 2nd widow2. Eunice Jepchumba Mosonik3. Noah Kipngetich Ruto4. Joel Ruto Mosonik5. Mathew Kipsang Mosonik6. Nancy Jemeli7. Selly Jepchirchir Mosonik8. Irene Jemutai Mosonik9. Erick Kipkorir

3. The deceased left behind one property known as MOI’S BRIDGE/SIRIKWA BLOCK 1 (ZIWA) /447 measuring 30. 08 acres.Pursuant to the directions of the court, the petitioner filed her affidavit proposing the mode of distribution as follows;The first house to get 15. 04 acres to be shared among the children of Leah Tuwei (Deceased); Sarah Maritim, the wife and children of Willy Kipkemboi Ruto, David Kiplagat Mosonik, Rebecca Jepkirui Kipruto, Richard Kipkirui Ruto, Isaiah Ruto Mosonik and Emily Jelagat Mosonik in equal shares.

4. The 2nd house to get 15. 04 acres which will be shared as follows; Sarah Jepkemboi Mosonik – 3 acres, Eunice Jepchumba Mosonik 0. 5 acres, Noah Kipngetich Ruto – 2. 51 acres, Joel Ruto Mosonik – 2. 51 acres, Mathew Kipsang Mosonik –2. 51 acres, Nancy Jemeli – 0. 5 acres, Selly Jepchirchir Mosonik – 0. 5 acres, Irene Jemutai Mosonik – 0. 5 acres and Erick Kipkorir – 2. 51 acres.

Analysis & Determination 5. The issue for determination herein is

Whether the proposed mode of distribution should be allowed 6. Distribution where the deceased was polygamous is governed by section 40 of the Law of Succession Act which states;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."

7. Considering a similar scenario, the Court in Re Estate Of John Musambayi Katumanga – Deceased [2014] eKLR held as follows:“The spirit of Part V, especially Sections 35, 38 and 40, is equal distribution, of the intestate estate amongst the children of the deceased. There have been debates on whether the distribution should be equal or equitable. My reading of these provisions is that they envisage equal distribution for the word used in Sections 35(5) and 38 is ‘equally’ as opposed to ‘equitably’. This is the plain language of the provisions. The provisions are in mandatory terms – the property “shall … be equally divided among the surviving children.” Equal distribution is envisaged regardless of the ages, gender and financial status of the children.”

8. It follows that the property of the deceased should be distributed considering each member of the family as a unit. Further, each unit is to receive an equal share of the property. The petitioner’s’ proposed mode of distribution clearly distributes the property of the deceased unequally among the beneficiaries.NAME OF HEIR SHARE OF ESTATE

Leah Tuwei (estate) 1. 6 acres

Daniel Kipng’eno Ruto (estate) 1. 6 acres

Willy Kipkemboi Ruto (estate) 1. 6 acres

Joseph Ruto (estate) 1. 6 acres

Sarah Maritim 1. 6 acres

David Kiplagat Mosonik 1. 6 acres

Rebecca Jepkirui Kipruto 1. 6 acres

Richard Kipkirui Ruto 1. 6 acres

Isaiah Ruto Mosonik 1. 6 acres

Emily Jelagat Mosonik 1. 6 acres

Sarah Jepkemboi Mosonik 1. 6 acres

Eunice Jepchumba Mosonik 1. 6 acres

Noah Kipngetich Ruto 1. 6 acres

Joel Ruto Mosonik 1. 6 acres

Mathew Kipsang Mosonik 1. 6 acres

Nancy Jemeli 1. 6 acres

Nancy Jemeli 1. 6 acres

Selly Jepchirchir Mosonik 1. 6 acres

Irene Jemutai Mosonik 1. 6 acres

Erick Kipkorir 1. 6 acres

9. In the premises, I proceed to confirm the grant of letters of administration dated 17. 03. 2014 issued to the petitioner. The estate of the deceased shall be distributed as follows;

10. It is my considered view that this distribution is in tandem with the provisions of the Law of Succession Act.

11. The administrators shall provide the court with the accounts of the estate after six months to confirm the distribution of the estate has been concluded.

12. It is so ordered.

DELIVERED, DATED AND SIGNED AT ELDORET ON THIS 11TH DAY OF APRIL 2024. .....................................R. NYAKUNDIJUDGE