[2022] KEHC 14153 (KLR)

In re Estate of Peter Okumu Webala (Deceased) (Succession Cause 103 of 2010) [2022] KEHC 14153 (KLR) (7 October 2022) (Judgment)

Neutral citation: [2022] KEHC 14153 (KLR)

Republic of Kenya

In the High Court at Bungoma

Succession Cause 103 of 2010

SN Riechi, J

October 7, 2022

IN THE MATTER OF THE ESTATE OF PETER OKUMU WEBALA-DECEASED

Between

Mary Okumu Webala

Petitioner

and

Martin Okumu Webala

1st Objector

Vitalis Simiyu Okumu

2nd Objector

Judgment

1. Peter Okumu Webala, the deceased herein died intestate on August 17, 2001 and survived by 6 widows and their respective children. Subsequently Mary Okumu Webala applied for letters of administration. The grant of representation made to Mary was objected to by the objectors who by orders of the court were appointed co-administrators.

2. By judgment of this court delivered on November 16, 2017, the parties were directed to file their proposals on the mode of distribution. The main asset for distribution in theses proceedings is the land parcel known as E Bukusu/W Sang’alo/23 measuring approximately 9. 33 Ha.

3. The petitioner Mary Okumu filed her proposal stating that the first house constituting Delila Okumu-the widow and her children be allotted 1. 04 acres, the second house of Rosina Okumu be given 1. 8 acres, that is; 0. 9 acres each for Martin Okumu and Chrisantus Waswa, the third house of Rosemary Okumu be given 3. 6 acres; 2. 7 acres to the widow and 0. 9 acres to Fred Nalyana Okumu, for the fourth house of Gladys Okumu, she proposes that 2. 05 acres be allocated, and, finally the fifth house of Mary Namwalwa be given 3. 2 acres.

4. For the respondents/objectors, it is submitted that at the time of his death, the deceased had distributed his estate in such a way that the 1st to sixth houses had been given 0. 998 acres, 2. 210 acres, 4. 11 acres, none for the 4th house, 2. 057 acres and 2. 07 acres respectively.

5. It is submitted that the 1st house’ portion was small because there are only girls in that house and the 4th house not allocated any share because they had benefitted elsewhere where the widow and her children had settled. It is further stated that Wycliffe Sifuna and Eliud Juma from the 2nd house had been settled elsewhere by the deceased.

6. Before delving into the process of distribution, one aspect worth comment is the notion that the first house was allocated a smaller portion because the house has dominantly girls who have been married off and therefore not entitled to portions similar to the other houses. From the onset, this perspective is misplaced in light of the passage of the Constitution, 2010 which recognizes equal rights of the male and the female child. The provision has been interpreted in several decisions of the court and held that such classification discriminates against the deceased children on the basis of gender. Similarly, the Law of Succession Act creates no such distinction between the male and the female child.

7. The other issue coming out of the submissions is that the one of the houses has been allocated land elsewhere. There is no consensus though on which house was allocated. The court has carefully perused the record and it appears that the house of Elizabeth Okumu is that house. In any case, none of the parties has allocated this house any share.

8. On the actual distribution, the estate is comprised of one parcel E Bukusu/W Sang’alo/23 measuring 9. 33 Ha or approximately 23 acres. It is not in doubt the deceased was polygamous and the law relating thereto is Section 40 of the Law of Succession Act which provides as follows:-(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 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 within each house shall then be in accordance with the rules set out in sections 35 to 38. ”

9. Further guidance is to be found in Section 3 of the Law of Succession Act which defines the house as a family unit comprising a wife, whether alive or dead at the date of the death of the husband, and the children of that wife.

10. Taking the above into account, the estate has approximately 23 acres which is hereby equally divided among the 5 households as follows;1. House of Delilah okumu is given 4. 6 acres2. House of Rosina Okumu is given 4. 6 acres3. House of Rosemary N Okumu is given 4. 6 acres4. House of Gladys Okumu is given 4. 6 acres5. House of Mary Namwalwa is given 4. 6 acres.

11. This being a family matter, there shall be no orders as to costs.

DATED AT BUNGOMA THIS 7TH DAY OF OCTOBER, 2022S N RIECHIJUDGE