[2019] KEHC 7459 (KLR)
The court found that the petitioner's proposal for distribution of the deceased's estate was erroneous as it exceeded the available land and failed to provide for all beneficiaries. The court approved the objectors' proposal to distribute the land equally among the ten children and allocate Plot No. 2 at Lunga...
Source-derived case information.
- Citation
- [2019] KEHC 7459 (KLR)
- Parties
- Respondent: Molyne Adondi Makokha; Applicant: Sophia Munde Makokha; Applicant: Jane Atieno Makokha
- Court
- High Court
- Court Station
- High Court at Busia
- Jurisdiction
- Kenya
- Case Number
- Probate & Administration 121 of 2013
- Procedural Posture
- Probate and Administration / Ruling on Objection to Confirmation of Grant
- Outcome
- grant confirmed as per objectors' proposal
- Judges
- KW Kiarie
- Legal Topics
- Succession, Intestate Distribution, Polygamous Estates, Confirmation of Grant
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Molyne Adondi Makokha
Respondent
Sophia Munde Makokha
Applicant
Jane Atieno Makokha
Applicant
Procedural Posture
Probate and Administration / Ruling on Objection to Confirmation of Grant
Legal Issues
- 1 Whether the petitioner's proposed distribution of the deceased's estate exceeds the available land for distribution.
- 2 Whether the petitioner's proposal unlawfully excludes other beneficiaries who have not renounced their rights.
- 3 What is the appropriate mode of distribution of the deceased's estate among the widows and children in accordance with the Law of Succession Act.
Ratio Decidendi
The court found that the petitioner's proposal for distribution of the deceased's estate was erroneous as it exceeded the available land and failed to provide for all beneficiaries. The court approved the objectors' proposal to distribute the land equally among the ten children and allocate Plot No. 2 at Lunga market to the two widows. This approach aligns with section 40(1) of the Law of Succession Act, which mandates equitable distribution among all children and surviving spouses in polygamous intestate succession. The grant was confirmed on these terms, and the parties were ordered to render accounts within six months in compliance with section 83(g) of the Act.
Court Disposition
grant confirmed as per objectors' proposal
Orders
- Land parcel BUKHAYO/MATAYOS/58 to be shared equally among the ten children of the deceased.
- Plot No. 2 at Lunga market to be inherited by the two widows.
Full Case Text
Judgment text and source record
27 paragraphs
IN THE HIGH COURT OF KENYA
AT BUSIA
PROBATE & ADMINSTRATION NO. 121 OF 2013
IN THE ESTATE OF:
SILVANUS MAKOKHA NYABOLA............................................DECEASED
BETWEEN
MOLYNE ADONDI MAKOKHA...................PETITIONER/RESPONDENT
AND
SOPHIA MUNDE MAKOKHA
JANE ATIENO MAKOKHA.............................OBJECTORS/APPLICANTS
RULING
1. Sophia Munde MakokhaandJane Atieno Makokha, the objectors herein filed an objection to the confirmation of grant herein as proposed by the petitioner/respondent.
2. The proposal by the petitioner was as follows:
a) Molyne Adondi Makokha 3 Ha.
b) Sophia Munde Makokha 31/2Ha.
c) Jane Atieno Makokha 31/2 Ha.
These portions were to be excised from land parcel number BUKHAYO/MATAYOS/58.
3. The objectors contended that the proposal was wrong for the deceased was survived by two widows (the objectors) and ten children who include the petitioner. The deceased’s land measures 4. 0 hectares and the proposal of the petitioner is therefore erroneous for it is in excess of what is available for distribution.
4. Upon my perusal of the record, the certificate of the official search in respect of land parcel numberBUKHAYO/MATAYOS/58 that was filed by the petitioner indicate that the land is approximately 4. 0 hectares. Her proposal on the distribution to the three heirs in her list therefore exceeds what is available for distribution.
5. The petitioner’s proposal does not provide for the other nine beneficiaries and who have not renounced their right to inherit.
6. The objector’s proposal that land parcel numberBUKHAYO/MATAYOS/58be shared equally by the ten children of the deceased while the two widows inherit Plot No. 2 at Lunga market is reasonable. I approve the proposal. This resonates well with the provisions of section 40 (1) of the Law of Succession Act which provides:
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.
7. The grant is therefore confirmed in the terms approved hereinabove. The parties are given a period of six months to render accounts in compliance with section 83(g) of the Law of Succession Act. Failure to do so, without satisfactory reasons, the grant shall be revoked.
8. Each party to meet own costs.
DELIVEREDandSIGNEDatBUSIA this 21st dayof May, 2019
KIARIE WAWERU KIARIE
JUDGE