[2020] KEHC 2551 (KLR)
The court found that only half of WEST UYOMA/KAGWA/503 formed part of the deceased's estate, as evidenced by the certificate of search showing the other half belonged to the 2nd protestor. Applying Section 40 of the Law of Succession Act, the court held that the available half must be distributed equally among all...
Source-derived case information.
- Citation
- [2020] KEHC 2551 (KLR)
- Parties
- Applicant: Prisca Oloo Okoth; Respondent: Elly Otieno Okoth; Respondent: David Wanjare Wanjare
- Court
- High Court
- Court Station
- High Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 626 of 2013
- Procedural Posture
- Succession Cause / Ruling on Application for Rectification of Grant
- Outcome
- Application for rectification allowed.
- Judges
- TW Cherere
- Legal Topics
- Intestate Succession, Distribution of Estate, Polygamous Estates, Appointment of Administrator
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Prisca Oloo Okoth
Applicant
Elly Otieno Okoth
Respondent
David Wanjare Wanjare
Respondent
Procedural Posture
Succession Cause / Ruling on Application for Rectification of Grant
Legal Issues
- 1 Whether the undistributed property WEST UYOMA/KAGWA/503 forms part of the deceased's estate and is available for distribution.
- 2 How the available portion of WEST UYOMA/KAGWA/503 should be distributed among the beneficiaries in a polygamous family under Kenyan succession law.
- 3 Whether a second administrator should be appointed to ensure fair administration of the estate.
Ratio Decidendi
The court found that only half of WEST UYOMA/KAGWA/503 formed part of the deceased's estate, as evidenced by the certificate of search showing the other half belonged to the 2nd protestor. Applying Section 40 of the Law of Succession Act, the court held that the available half must be distributed equally among all the deceased's children, considering the polygamous nature of the family. The applicant had already benefited solely from another property, and her conduct indicated an attempt to disinherit other beneficiaries. To ensure fairness and proper administration, the court appointed the 1st protestor as a co-administrator alongside the applicant.
Court Disposition
Application for rectification allowed.
Orders
- Elly Otieno Okoth is appointed a co-administrator to the deceased’s estate.
- Letters of administration to issue in the names of Prisca Oloo Okoth and Elly Otieno Okoth.
Full Case Text
Judgment text and source record
27 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KISUMU
(CORAM: CHERERE-J)
SUCCESSION CAUSE NO. 626 OF 2013
IN THE MATTER OF THE ESTATE OF JOHN WANJARE OKOTH ALIAS OKOTH WANJARE(DECEASED)
BETWEEN
PRISCA OLOO OKOTH....................................................APPLICANT
AND
ELLY OTIENO OKOTH.................................................1STPROTESTOR
DAVID WANJARE WANJARE.....................................2NDPROTESTOR
RULING
1. Letters of administration were issued to the Applicant (widow) on 30. 05. 2014.
2. Certificate of confirmation of grant was issued on 07. 04. 15 distribution the deceased’s estate in LR. SOUTH SAKWA/BAR/KOWINO/2585solely to the Applicant (widow).
3. The Applicant (widow) has now discovered WEST UYOMA/KAGWA/503which forms part of deceased’s estate but which was not distributed and has proposed that the same be distributed to her and 7 of 13 of deceased’s children. The 7 children, include 5 of 7 of the Applicant’s own children and 2 of 9 of the children of the deceased’s 1st wife’s (Jane Ochino Okoth-Deceased)
4. The 1st protestor proposes that WEST UYOMA/KAGWA/503 be distributed equally to both houses. The 2nd Protestor on the other hand argues that half of WEST UYOMA/KAGWA/503 belongs to him and is not available for distribution.
5. The certificate of search demonstrates that the deceased owned ½ of WEST UYOMA/KAGWA/503 and the other half belongs to the 2nd Protestor. I therefore agree with the 2nd Protestor’s assertion that only ½ of WEST UYOMA/KAGWA/503 is available for distribution to the deceased’s family.
6. Section 40 of the Law of Succession Act (the Act) 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. (Emphasis added).
7. The Applicant has already benefitted from LR. SOUTH SAKWA/BAR/KOWINO/2585to the exclusion of all the other beneficiaries.
8. By her conduct as stated hereinabove, the Applicant has demonstrated her desire to disinherit some of deceased’s beneficiaries and I find that it is in the interest of justice that there be a second administrator in this matter.
9. Consequently, the application for rectification dated and filed on 28. 07. 2020 is allowed in the following terms:
1) ELLY OTIENO OKOTH is appointed a co-administrator to the deceased’s estate
2) Letters of administration do issue in the names of PRISCA OLOO OKOTH and ELLY OTIENO OKOTH
3) ½ of WEST UYOMA/KAGWA/503 shall be distributed equally to each of the deceased’s children
DATED AT KISUMU THIS 14th DAY OF OCTOBER 2020
T. W. CHERERE
JUDGE