[2022] KEHC 9888 (KLR)

In re Estate of Michael Tendwa Said (Deceased) (Probate & Administration 5 of 2013) [2022] KEHC 9888 (KLR) (13 July 2022) (Ruling)

Neutral citation: [2022] KEHC 9888 (KLR)

Republic of Kenya

In the High Court at Homa Bay

Probate & Administration 5 of 2013

KW Kiarie, J

July 13, 2022

IN THE MATTER OF THE ESTATE OF: MICHAEL TENDWA SAID.................................................................DECEASED BETWEEN YUDA KENGERWA TENDWA.........................................................1ST ADMINISTRATOR PATRICK MICHAEL SAID.............................................................2ND ADMINISTRATOR AND ROSE EVERLINE TENDWA........................................................................RESPONDENT

Ruling

1. Michael Tendwa Said, the deceased herein died intestate on April 28, 1999. He was polygamous and the beneficiaries herein have disagreed on the mode of distribution of the estate.

2. 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.

3. Rose Everline Tendwa, the respondent herein has opposed the mode of distribution that petitioners/administrators have proposed. She has raised her opposition as follows:a.That the first house of the deceased herein, that is the house of Wilhelmina Halima Said is survived by the following persons namely Pia Ann Konje (Now deceased but has left behind a family), George mashashi Said (now deceased but has left behind family), Menna A. Said, Yuda Kengere Tendwa, Hellen Michael Said Redempter Ongas Said, Norbert Leo Kihara and Paul Lule Tendwa and my house is survived by myself and my daughter Angelina Said Tendwa.b.That Yuda Kengere Tendwa and Patrick Michael Said have made application to this court to confirm the letters of administration issued to us jointly and have proposed a mode of distribution of the deceased assets annexed thereto without consulting me as a co-administrator and also the only surviving wife of the deceased.c.That as the only surviving widow of Michael George Tendwa I rank in priority amongst all the beneficiaries and as such my opinion is of high importance in the distribution of the deceased properties.d.That I strongly oppose the said annexed mode of distribution to the summons for confirmation of grant on the basis that the 1st house, 2nd house have colluded to deprive me of my share of the estate and it is my view that after the grant is confirmed, the distribution should strictly follow the following mode which is fair to all the three houses:a.Land parcel No. Kanyada/Kanyadier/41 to be wholly registered in the name of Yuda Kengere Tendwa to hold in trust for all the members of the 1st house;b.Half size of Site and Service Scheme No.93 to be registered in the name of Yuda Kengere Tendwa to hold in trust for all the members of the 1st household.c.Land Parcel No. Kabuoch/Kawere/Kanyango/Karading/318 and Kanyada/Kotieno/Katuma ’B’/302 to be registered in the name of Patrick Michael Said to hold in trust for all the members of the 2nd household.d.Half size of Site and Service Scheme no.93 to be registered in the name of Rose Everline Tendwa to hold in trust for all the members of the 3rd household.e.Land parcel no. Kanyada/Kotieno/Katuma ’B’/297 to be registered in the name of Rose Everline Tendwa Said to hold in trust for all the members of the 3rd household.

4. She has proposed that she be allocated land parcel number Kanyada/Kotieno-Katuma “B”/297. Her argument was on the basis that beneficiaries had taken possession of other land parcels forming the estate of the deceased herein. Her contention was that after the death of the deceased herein, the sons of the first wife unilaterally transferred the properties to themselves. She listed these land parcels as follows:a)Kanyada/Kotieno-Katuma “B”/964b)Kanyada/Kotieno-Katuma “B”/302c)Kanyada/Kotieno-Katuma “B”/297d)Homa Bay/Kawere-Konyango-Karading/1816e)Homa Bay/Kawere-Konyango-Karading/2335f)Homa Bay/Kawere-Konyango-Karading/2318g)East Kanyada/Kanyadier/41h)Developed Town residential houses at site & Service Scheme Homa Bay plot number 93.

5. This contention does not appear to be authentic for the following properties are in the proposal of the petitioners for distribution:a.Homa Bay/Kawere-Konyango-Karading/2318b.East Kanyada/Kanyadier/41c.Kanyada/Kotieno-Katuma “B”/297d.Kanyada/Kotieno-Katuma “B”/302e.Service Scheme Homa Bay plot number 93. The respondent has been named to be a beneficiary in some of them.

6. The second issue is that the respondent has not supported her claim with any documentary evidence. The production of copies of green cards in respect of the properties allegedly illegally transferred could have been the best way to authenticate her claim. A green card gives the history of any parcel of land.

7. I therefore find the claim by the respondent to be baseless.

8. I have carefully perused the proposed distribution by the petitioners and I am satisfied that it complies with section 40 of the Law of Succession Act. I accordingly confirm the grant as proposed. The petitioners to render accounts within 90 days of this ruling failure to do so unless extension of time has been sought and granted, the grant will be revoked automatically.

DELIVERED AND SIGNED AT HOMA BAY THIS 13THDAY OF JULY, 2022Kiarie Waweru KiarieJUDGE