[2018] KEHC 3714 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KERICHO

SUCCESSION CAUSE NO. 110 OF 2014

IN THE MATTER OF THE ESTATE OF SILA KIPLANGAT BOGERI ALIAS KIPLANGAT BOKERI (DECEASED)

MARY C BOGERI…………..……………..1ST PETITIONER/PROTESTOR

ALICE CHEPNGENO BOGERI…….….2ND PETITIONER RESPONDENT

JUDGMENT

1. The petitioner and protestor are the 1st and 2nd widow respectively of Sila Kiplangat Bogeri alias Kiplangat Bokeri who died intestate on 29th November 2013 at the Kapkatet District Hospital. Letters of administration intestate were granted to them jointly on 13th November 2013.

2. Thereafter, by an application dated 22nd June 2016, the petitioners applied for confirmation of the grant issued to them. In the affidavit sworn in support of the summons for confirmation of grant, the petitioners deposed at paragraph 7 that the beneficiaries had agreed that the estate of the deceased should be shared equally between the 1st and 2nd house.

3. The estate of the deceased comprised, among other assets including shares in several companies, three real properties, namely:

i. Kericho/Nyamanga/366

ii. KerichoChilchila/511

iii. Kericho/Chilchila/182

4. By a statement dated 15th May 2017 and filed in court on the same day, however, Mary C. Bogeri, the 1st petitioner, protested at the mode of distribution that she and her co-petitioner had proposed in their affidavit sworn in support of the application for confirmation of grant. She stated that she was opposed to equal distribution of some of the assets on the basis that the assets had been bought from dowry paid to the deceased following the marriages of her daughters with the deceased. She named these assets as being:

i. Shares at MakyolokTorontonCo-operative Limited

ii. Shares at Mokyolok Toronton Market plot 18

iii. Shares at Mokyolok Toronton FCS cotton’

iv. Shares at Mokyolok Toronton Cofee Factory;

v. Shares at Kericho Chilchila/ Fort Ternan/ Makyolok/182

vi. Shares at Kericho/Chilchila/Fort Ternan/Magire/Makyolok 511

5. She was in agreement with the mode of distribution of Kericho/Nyamanga/366which the parties had, as they had done with the other properties, proposed should be shared equally between the two houses.

6. In a statement in reply dated 6th November 2017, the 2nd petitioner, Alice Chepngeno Bogeri, denied that the properties in question, specifically Kericho/Chilchila/511 and Kericho/Chilchila/182 were bought with dowry following the marriage of daughters from the 1st house. She stated that the deceased had bought land at a place called Kibugut. He had used Kshs.3,000 borrowed from one Andrew Rop. Thereafter, he had sold the land for Kshs. 8,000. He had given half of this amount, Kshs.4,000 to the 1st petitioner/protestor, while he used the other half to purchase Kericho/Chilchila/511 and Kericho/Chilchila/182. She urged the court to direct that the two parcels of land should be shared equally between the two houses.

7. I directed the parties to proceed with their respective cases by way of oral evidence, and both the petitioners testified but called no witnesses.

8. The protestor adopted the contentions set out in her statement with regard to the purchase of the two parcels of land. She maintained that the two parcels of land had been purchased with dowry paid for her daughters, and so they should not be distributed equally between the two houses of the deceased but should be inherited by her house only.

9. In response, the 2nd petitioner also adopted the averments in her statement. She maintained that the land had been bought with funds from the sale of another property situated at Kibugat, whose purchase had been financed by a loan from a Mr. Rop. The two parcels of land were in the occupation of beneficiaries of the deceased from both houses. They had been living on the land parcel even during the lifetime of the deceased. She maintained that the land should be shared equally between the two houses as it had been bought by the deceased. It had not been purchased using dowry from the marriage of the protestor’s daughters.

10. I have considered the pleadings of the parties, their oral evidence, and their respective submissions. I have also considered the law with respect to the distribution of the estate of a deceased person.

11. Section 40 of the Law of Succession Act provides for the manner in which the estate of a person who was polygamous should be distributed. However, I note from the application dated 22nd June 2017 for confirmation of the grant to the petitioners in this cause that all the parties had agreed that the estate of the deceased should be shared equally between the houses of the deceased. The affidavit in support was signed by both the protestor and her co-administrator, the respondent. Aside from the protest by the 1st petitioner, there is no other objection by any of the beneficiaries of the estate to the mode of distribution. It would appear, then, that the beneficiaries were satisfied with an equal distribution of the estate of the deceased between the deceased’s two houses.

12. Then comes the 1st petitioner’s argument that two of the properties, Kericho /Chilchila/511 and Kericho/Chilchila/182 were purchased from dowry paid for two of her daughters. Aside from her bare statement that this was indeed the case, there is no evidence that supports such a claim. How much the dowry was, when it was paid, in what form it was paid, does not emerge from her evidence. The court is left with her bare statement that the two parcels were bought with dowry from her daughters’ marriages, and the counter contention by the 2nd petitioner that the land was bought by the deceased after he sold another parcel of land. What is not in dispute is that the two parcels of land are registered in the name of the deceased and are occupied by children and grandchildren of the deceased, from both of his houses.

13. Given the absence of any evidence to support the contention that dowry from the marriage of daughters or a daughter from the first house was used to purchase the land in contention, I will not venture into an inquiry as to whether that, if true, would entitle the first house to keep the two properties when the estate of the deceased is distributed. Suffice to say that I am not satisfied that the 1st petitioner’s protest has merit.

14. Accordingly, it is hereby dismissed. The estate of the deceased shall be distributed as had been proposed by the petitioners jointly in their affidavit sworn in support of the application for confirmation of grant dated 22nd June 2016.

15. As this is a family matter, I direct that each party bears her own costs.

Dated, Delivered and Signed at Kericho this 3rd day of October 2018.

MUMBI NGUGI

JUDGE