[2022] KEHC 3054 (KLR)
The court found that the estate of Odinga Odak, being polygamous, was subject to section 40 of the Law of Succession Act, which mandates that the estate be divided among the houses according to the number of children and surviving wives. The court determined that the interested parties, as the son and wife of the...
Source-derived case information.
- Citation
- [2022] KEHC 3054 (KLR)
- Parties
- Applicant: Charles Alingo Odinga; Respondent: Cornelia Adhiambo Odinga; Respondent: Tobias Omondi Odinga; Interested Party: Francis Odak Ng’Ong’A; Interested Party: Angelina Ochola
- Court
- High Court
- Court Station
- High Court at Homa Bay
- Jurisdiction
- Kenya
- Case Number
- Probate & Administration 131 of 2016
- Procedural Posture
- Probate and Administration / Ruling on Application for Review of Confirmation of Grant
- Outcome
- application allowed
- Judges
- KW Kiarie
- Legal Topics
- Succession, Intestate Estate Distribution, Polygamous Estates, Beneficiary Inclusion
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Charles Alingo Odinga
Applicant
Cornelia Adhiambo Odinga
Respondent
Tobias Omondi Odinga
Respondent
Francis Odak Ng’Ong’A
Interested Party
Angelina Ochola
Interested Party
Procedural Posture
Probate and Administration / Ruling on Application for Review of Confirmation of Grant
Legal Issues
- 1 Whether the interested parties, as relatives of the deceased's brothers, should be included as beneficiaries of the estate.
- 2 Whether the previous order and certificate of confirmation complied with section 40 of the Law of Succession Act regarding distribution of a polygamous intestate estate.
Ratio Decidendi
The court found that the estate of Odinga Odak, being polygamous, was subject to section 40 of the Law of Succession Act, which mandates that the estate be divided among the houses according to the number of children and surviving wives. The court determined that the interested parties, as the son and wife of the deceased's brothers who resided on the suit land, were actual beneficiaries who had been inadvertently omitted from the schedule of distribution. The previous order and certificate of confirmation did not comply with the statutory requirements for distribution of a polygamous intestate estate. Consequently, the court reviewed the order of 4th July 2019 to include any omitted...
Court Disposition
application allowed
Orders
- The order made on 4th July 2019 and the subsequent Certificate of Confirmation are reviewed to include any beneficiary who may have been left out.
- Distribution of the estate shall comply with section 40 of the Law of Succession Act.
Full Case Text
Judgment text and source record
29 paragraphs
In re Estate of Odinga Ogak(Deceased) (Probate & Administration 131 of 2016) [2022] KEHC 3054 (KLR) (14 June 2022) (Ruling)
Neutral citation: [2022] KEHC 3054 (KLR)
Republic of Kenya
In the High Court at Homa Bay
Probate & Administration 131 of 2016
KW Kiarie, J
June 14, 2022
IN THE MATTER OF THE ESTATE OF ODINGA OGAK(DECEASED)
Between
Charles Alingo Odinga
Petitioner
and
Cornelia Adhiambo Odinga
1st Respondent
Tobias Omondi Odinga
2nd Respondent
and
Francis Odak Ng’Ong’A
Interested Party
Angelina Ochola
Interested Party
Ruling
1. Charles Alingo Odinga, the petitioner/applicant herein, moved the court by way of chamber summons and is seeking the following orders:a)The Honorable Court be pleased to review the order made on the 4th day of July, 2019 and the subsequent Certificate of Confirmation to include the names of the interested parties above named as beneficiaries to the estate of Odinga Odak.b)The costs of this application be paid out of the estate of the deceased.
2. The application was premised on the following grounds:a)Odinga Odak, Erastus Ng’ong’a and Thomas Ochola, all now deceased, are blood brothers who all resided on the suit Land Parcel number South Sakwa/Alego/33 registered in the name of Odinga Odak as sole proprietor.b)The interested parties are the son and wife of the above named deceased brothers of Odinga Odak whose homesteads are on the above suit land but were inadvertently left out when the schedule of distribution was presented to court.c)The interested parties are actual beneficiaries of the above estate and should be accordingly included
3. The application was partially conceded by the respondent who said that the provisions of section 40 of the Law of Succession Act were not complied with.
4. Odinga Odak was polygamous. His estate is governed by section 40 of the Law of Succession Act which 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.
5. The order of 4th July, 2019 is hereby reviewed to include any beneficiary who may have been left out and the distribution to comply with the provisions of section 40 of the Law of Succession Act.
6. I therefore allow the application dated 8th October, 2021. Each party to bear own costs.
DELIVERED AND SIGNED AT HOMA BAY THIS 14TH DAY OF JUNE, 2022KIARIE WAWERU KIARIEJUDGE