[2009] KEHC 82 (KLR)
The court found that the proposed distribution of the estate, which allocated the land and most of the cash assets to the sons and only a nominal sum to the daughters, was contrary to the Law of Succession Act and the principle of equality in inheritance. The court held that all children, regardless of gender, are...
Source-derived case information.
- Citation
- [2009] KEHC 82 (KLR)
- Parties
- Applicant: Moses C. A. Terer; Applicant: Kenneth K. Chepkwony
- Court
- High Court
- Court Station
- High Court at Kericho
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 365 of 2007
- Procedural Posture
- Succession Cause / Ruling on Confirmation of Grant
- Outcome
- grant confirmed with modifications
- Legal Topics
- Intestate Succession, Distribution of Estate, Gender Equality in Inheritance
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Moses C. A. Terer
Applicant
Kenneth K. Chepkwony
Applicant
Procedural Posture
Succession Cause / Ruling on Confirmation of Grant
Legal Issues
- 1 Whether the apportionment of the deceased's estate among the children was in accordance with the Law of Succession Act.
- 2 Whether daughters are entitled to equal shares of the estate as sons under Kenyan law.
- 3 Whether reliance on customary law was proper in the distribution of the estate.
Ratio Decidendi
The court found that the proposed distribution of the estate, which allocated the land and most of the cash assets to the sons and only a nominal sum to the daughters, was contrary to the Law of Succession Act and the principle of equality in inheritance. The court held that all children, regardless of gender, are entitled to equal shares of the estate. The reliance on customary law was rejected as the Law of Succession Act applied, given the date of death. The court ordered that the cash assets totaling Ksh.1,014,373.60 be divided equally among all nine children, with each receiving Ksh.100,000. The land was to remain divided among the sons, but failure to pay the daughters their share...
Court Disposition
grant confirmed with modifications
Orders
- The sum of Ksh.1,014,373.60 to be apportioned equally among all nine children at Ksh.100,000 each.
- The daughters to receive their share from the Kenya Commercial Bank account; the sons from the Standard Chartered Bank account.
Full Case Text
Judgment text and source record
45 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT KERICHO
Succession Cause 365 of 2007
IN THE MATTER OF THE ESTATE OF
MARTHA CHEPNGENO KETER.............................................DECEASED
AND
MOSES C. A. TERER .......................................1ST PETITIONER
KENETH K. CHEPKWONY................................2ND PETITIONER
IN THE MATTER OF AN APPLICATION FOR CONFIRMATION OF
TEMPORARY GRANT OF LETTERS OF ADMINISTRATION
RULING
(Number 3)
I:Clarification under Rule 41(2) of the Probate and Administration Rules.
1. This court sought further clarification in this Probate matter in the Ruling No.1 and No.2 herein. The Probate matter concerned the Estate of the late Martha Chepngeno Keter aged 85 years old on 30th April 2007 at the time she passed away.
2. She was a progressive woman as at the time of her death her assets was a parcel of land L.R. Kericho/Sosiot/534 measuring 10. 8 ha. She had two bank accounts with the Standard Chartered Bank amounting to Ksh.492,000/= and the Kenya Commercial Bank amounting to Ksh.622,373. 60.
3. The deceased was survived by three sons and six daughters who were aged, sons 52, 39, 38 years whilst the daughters were 60, 57, 51, 48, 45 & 43 years respectively. The daughters were disclosed as married but there was one Beatrice, that this was not indicated, namely if she was married or not.
4. At the first application for letters of grant to be confirmed, the applicants through their advocate failed to disclose that they had sisters. They approved the assets almost equally amongst themselves. Namely the 1st petitioner and son – Moses C. A. Terer was allocated 12. 6 acres whilst the other two sons were allocated 7. 2 acres each of land. All three were to give moneys to the 1st and 3rd son but nothing to the sisters.
5. After seeking further clarification a further affidavit had now been filed apportioning Ksh.30, 000/= each to the sisters only but all the balance of moneys and land went to the 3 male sons.
6. The advocate on behalf of the applicant informed this court that the family sat, decided and thus he did not wish to interfere with the apportionment. That the said grant now be confirmed.
II. Opinion
7. Letters of grant intestate was issued temporary on 18th September 2008 (by G.B.M. Kariuki J,). The grant notice had first been placed in the Kenya gazette (28th November, 2007) before it was issued (6th December 2007). Six months is required to lapse whilst parties gather the estate before confirmed letters are applied for. In this case the application was made a month later on 14th October 2008. This application was not set down for hearing by the advocate until 7th May 2009 for 11th June 2009.
8. The time lapse is important to be observed unless the parties apply to confirm the grant earlier but the law requires this be done after three (3) months has lapsed.
9. Apportionment of assets amongst children of the deceased must be equal and according to houses. There are no houses disclosed in this grant. The widower to the deceased’s has not been mentioned.
10. In the Rono v Rono& Anor. (2005) KLR 538case the daughters are entitled to the estate of the deceased equally with their male counterparts. In this Probate matter the three male survivors have kindly agreed to apportion to each daughter to the deceased Ksh.30,000/= each. This though is not equality between them. The sums in the bank is Ksh.492,000/= Standard Chartered Bank and the sum of Ksh.622,373. 60 in Kenya Commercial Bank. This is a total of Ksh.1,014,373. 60. Out of this sum the daughters are to get Ksh.180,000/= amongst the six of them. The three sons would retain the land and the balance of moneys.
11. It is the task of an advocate dealing with Probate matters to advice their clients the workings of the law of succession and the apportionment under the act. The advocate relied on Customary Law which is only applicable if the deceased died prior to the act. Our laws are to be progressive.
12. In this matter I would rule that the sum of Ksh.1,014,373. 60 be apportioned equally amongst all the children at Ksh.100,000/= per child. Therefore the sum from Account No.075-1370-60363 – Kenya Commercial Bank of Ksh.622,373. 60 be paid to the daughters namely;-
12. 1. Ruth Cheruto Koske aged 60 years - Ksh.100, 000/=
12. 2. Jane Cherono Koske aged 57 years - Ksh.100, 000/=
12. 3. Ann Chelangat Keter aged 51 years - Ksh.100, 000/=
12. 4. Beatrice Chepkirui aged 48 years - Ksh.100, 000/=
12. 5. Rael Chepkemoi Keter aged 45 years - Ksh.100, 000/=
12. 6.Rosemary Chepkoech Taalamaged 43 years - Ksh.100, 000/=
The sum from the Standard Chartered Bank Ltd Account No.01501532815 of Ksh.492, 000/= be apportioned to;
12. 7. Moses C. A. Terer aged 52 years - Ksh.100, 000/=
12. 8. Henry Kiplagat Chepkwony aged 39 years - Ksh.100, 000/=
12. 9. Kenneth K. Chepkwony aged 38 years - Ksh.100, 000/=
13. The balance sum of Ksh.22,373. 60 and Ksh. 192,000/= respectively be used for costs to the estate and payment of any expenses.
14. There is the 10. 8 hectares divided amongst the three sons. Failure to pay sum due the daughter that the daughters be apportioned the land parcel equally amongst the nine children.
15. The costs be in the Estate.
Dated this 30th day of November 2009 at Kericho
M. A. ANG’AWA
JUDGE
Advocates
D. O. Akinyi instructed by Akinyi & Co. Advocates for administrators/applicant – present.