[2021] KEHC 7325 (KLR)
The court held that the Law of Succession Act recognizes all children of a deceased person, including married daughters, as beneficiaries of the estate. The exclusion of the applicant from the distribution of the estate solely on the basis of her marital status was unlawful and without basis. The deceased died...
Source-derived case information.
- Citation
- [2021] KEHC 7325 (KLR)
- Parties
- Respondent: James Musa Tapoyo; Applicant: Joyce Kimomwor Tapoyo
- Court
- High Court
- Court Station
- High Court at Kitale
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 194 of 2004
- Procedural Posture
- Succession Cause / Ruling on Objection to Distribution of Estate
- Outcome
- Application allowed. Previous distribution set aside. Applicant to be included as beneficiary.
- Judges
- LK Kimaru
- Legal Topics
- Succession, Intestate Estate Distribution, Polygamous Estates, Beneficiary Rights, Gender Equality in Inheritance
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
James Musa Tapoyo
Respondent
Joyce Kimomwor Tapoyo
Applicant
Procedural Posture
Succession Cause / Ruling on Objection to Distribution of Estate
Legal Issues
- 1 Whether the applicant, as a married daughter of the deceased, is entitled to inherit from her father's estate.
- 2 Whether exclusion of the applicant from the distribution of the estate was lawful under the Law of Succession Act.
- 3 Whether the previous distribution and registration of the disputed parcel should be set aside.
Ratio Decidendi
The court held that the Law of Succession Act recognizes all children of a deceased person, including married daughters, as beneficiaries of the estate. The exclusion of the applicant from the distribution of the estate solely on the basis of her marital status was unlawful and without basis. The deceased died intestate, and the estate must be distributed in accordance with the statutory provisions, which do not discriminate against married daughters. The previous distribution and any resulting survey, subdivision, or registration of the disputed parcel (West Pokot/Siyoi “A”/4244) are therefore set aside, and the applicant must be included as a beneficiary in the new application for...
Court Disposition
Application allowed. Previous distribution set aside. Applicant to be included as beneficiary.
Orders
- The proposed distribution in the Rectified Certificate of Confirmation of Grant issued on 23/7/2020 is set aside as it relates to West Pokot/Siyoi “A”/4244.
- Any survey or subdivision done in respect of West Pokot/Siyoi “A”/4244 is declared null and void.
Full Case Text
Judgment text and source record
18 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT KITALE
SUCCESSION CAUSE NO. 194 OF 2004
IN THE MTTER OF THE ESTATE OF TAPOYO ARIMUK SILAURE (DECEASED)
JAMES MUSA TAPOYO.................................PETITIONER/RESPONDENT
VERSUS
JOYCE KIMOMWOR TAPOYO..........................APPLICANT/OBJECTOR
RULING
Joyce Kimomwor Tapoyo is the daughter of the deceased, Tapoyo Arimuk Silaure. She is married. The deceased had two wives and two parcels of land. It is not in dispute that each widow and her children are entitled to inherit. The 1st wife and her children are entitled to inherit LR No. West Pokot/Keringet “A”/2428 measuring 5. 26 Hectares while the 2nd wife and her children are entitled to inherit LR No. West Pokot/Siyoi “A”/4244. There is no dispute in respect of the inheritance due to the 1st wife and her children. There is a dispute in relation to the inheritance of the land that the children of the 2nd wife were to distribute. From the pleadings filed in court, it was clear that the Applicant, as the daughter of the deceased was excluded from benefiting from the estate of her deceased father. The reason given by the Petitioner/Respondent is that she is married and therefore entitled to benefit from her husband.
Section 40 of the Law of Succession Act recognise all the children of the deceased, including sons and daughters as beneficiaries of the estate of the deceased. This is more so where the deceased was polygamous. In the present application, it is clear that there was no basis for the exclusion of the Applicant as a beneficiary of the estate of the deceased. She is a dependant of the deceased as envisioned under Section 29 of the Law of Succession Act. It does not matter her marital status. She has not renounce her right to be considered as a beneficiary of the estate of her deceased’s father’s estate. The deceased died intestate and did not leave behind any Will. The properties that comprise his estate shall be distributed in accordance with the provisions of the Law of Succession Act.
In the premises therefore, the proposed distribution contained in the Rectified Certificate of Confirmation of Grant issued by this court on 23/7/2020 is hereby set aside as it relates to the property known as West Pokot/Asiyoi “A”/4244. Any survey or subdivision done is hereby declared null and void. If any registration has been done the same is hereby ordered cancelled.
The Petitioner is ordered to present another application for Confirmation of Grant in respect of parcel of land No. West Pokot/Siyoi “A”/4244 to the court where the Applicant shall be included as a beneficiary and her share clearly specified. The Applicant shall be at liberty to file an affidavit in court giving her proposal on what her share should be. The Petitioner shall file and serve the said application within (14) days. The Applicant shall file the affidavit referred to above within seven (7) days of being served. Mention on 20/7/2021 to confirm compliance.
It is so ordered.
Dated at Kitale this 21stday of April, 2021.
L. KIMARU
JUDGE
20/4/2021