[2022] KEHC 14558 (KLR)

In re Estate of Kitur Chepsungulgei (Deceased) (Succession Cause 53 of 2020) [2022] KEHC 14558 (KLR) (1 November 2022) (Ruling)

Neutral citation: [2022] KEHC 14558 (KLR)

Republic of Kenya

In the High Court at Eldoret

Succession Cause 53 of 2020

RN Nyakundi, J

November 1, 2022

IN THE MATTER OF THE ESTATE OF KITUR CHEPSUNGULGEI (DECEASED)

Between

Kennedy Kiptoo

Applicant

and

Gideon Kibitok

1st Respondent

Denis Kiplagat

2nd Respondent

Ruling

1. The applicant herein approached this court by way of notice of motion dated July 12, 2022 seeking orders to have his paternity determined. He sought orders to conduct a DNA test to ascertain facts on paternity and consequently the court granted said orders. The other order sought in the application were conditional on the result of the DNA test. The same was an order for recognition as a beneficiary of the estate in the circumstances that the results were positive.

2. The DNA test results that were filed in court on August 29, 2022 confirmed that the objector was is related to the 3rd respondent and they share a common lineage. This therefore leaves no doubt that he is a son to the deceased.

3. Section 29 of the Law of Succession Act provides as follows;Meaning of dependantFor the purposes of this part, "dependant" means-a.the wife or wives, or former wife or wives, and the children of the deceased whether or not maintained by the deceased immediately prior to his death;b.such of the deceased's parents, step-parents, grandparents, grandchildren, step-children, children whom the deceased had taken into his family as his own, brothers and sisters, and half-brothers and half-sisters, as were being maintained by the deceased immediately prior to his death; andc.where the deceased was a woman, her husband if he was being maintained by her immediately prior to the date of her death.

4. The upshot of the results of the test are that he is to be included as a beneficiary of the estate as he is a dependant for the purposes of distribution of the estate.

5. Section 40 of the Law of Succession 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.(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

6. There was a proposed mode of distribution filed with the summons for confirmation of grant dated June 7, 2021 that excluded the applicant/objector. Further, a comparison of the numbers and names beneficiaries as listed in the proposed mode to the list provided by the chief in the petition for the grant differs. In the interests of expediting the succession, the court directs that the objector be included in the distribution of the estate. The sole asset of the estate is LR No Nandi/Cheptil/24 measuring 103 acres. The proposed mode of distribution used the system of dividing the property between each house as an equal unit with each house receiving 34 acres. I find that this will occasion unequal distribution of the estate which is inconsistence with the provisions of section 40 of the Law of Succession Act.

7. I align my findings with the finding in Mary Rono v Jane Rono & another [2005] eKLR, where Omollo, JA had this to say about section 40 of the Law of Succession Act:My understanding of that section is that while the net intestate estate is to be distributed according to houses, each house being treated as a unit, yet the Judge doing the distribution still has a discretion to take into account or consider the number of children in each house. If Parliament had intended that there must be equality between houses, there would have been no need to provide in the section that the number of children in each house be taken into account.

8. The framers of section 40 of the act intention can be deduced from the report of the Commission on the Law of Succession 1968 as cited by Lenaola, J (as he then was)InRe Estate of John Muia Kalii- (Deceased) [2008] eKLR which was as follows:In customary law, on the other hand, the matter is complicated by the rules of division amongst the “house” by which there is an equal division amongst the “houses” irrespective of the number of children in each ”house”. We believe this rule to be highly unfair and discriminatory… We think that is necessary, for the purpose of determining beneficial interests, to make a division of the net estate between the “houses”. This accords with customary law and will work out well in practice since the property of each “house” is normally treated as independent and separate from the other. As to the mode of division, we have already stressed that the present system of equal division irrespective of the number of children in each “house” is inequitable. We believe that the fairest division would be one based on the number of children in each “house” but also adding to the number of children, the wife as an additional dependants especially to cater for the wife who has no children.

9. The beneficiaries to the estate as per the letter of the chief are a total of 14 including the applicant. The 1st house has 5 living members, the 2nd house has 4 living members and the 3rd house has four living members. There are no minors among the beneficiaries therefore there is no need for the properties to be held in trust as proposed. I therefore order that the objector be included in the distribution under the 3rd house. Each of the beneficiaries is entitled to an equal share of the 103 acres.

10. Using the principle of each house as a unit and pursuant to section 40 of the Law of Succession Act, I hereby proceed to distribute the estate as follows;1st HouseBeneficiaries Share1. Jane Jelel 7 acres2. Gideon Kitur 7 acres3. Bernard Kipkorir Biwott 7 acres4. Samuel Kiprop 7 acres5. Emmy Chesang 7acres2nd House1. Anna Jemeli 7 acres2. Hellen Jepkemboi 7 acres3. Pauline Jepkosgei 7 acres4. Sophi Jepchumba 7 acres3rd House1. Stephen Kiplagat Kitur 7 acres2. Stanley Kipkirui 7 acres3. Eunice Jepkazi 7 acres4. David Kipkemboi 7 acres5. Kennedy Kiptoo. 7 acresEach party to bear its own costs on the application. It is so ordered.

DATED, SIGNED AND DELIVERED VIA EMAIL AT ELDORET THIS 1st DAY OF NOVEMBER, 2022. ............................R NYAKUNDIJUDGE