[2019] KEHC 8198 (KLR)
The court found that the deceased had distributed his estate among his sons during his lifetime, including the objector's father, and there was no evidence of disinheritance or protest by any son. The objector, as a grandson, was not entitled to a share beyond his father's allocation, especially since he had already...
Source-derived case information.
- Citation
- [2019] KEHC 8198 (KLR)
- Parties
- Applicant: Henry Egesa Wanzala; Respondent: Rodgers Ombale Magina; Interested Party: ACK Nasira
- Court
- High Court
- Court Station
- High Court at Busia
- Jurisdiction
- Kenya
- Case Number
- Probate & Administration 21 of 2006
- Procedural Posture
- Probate and Administration / Ruling on Mode of Distribution of Estate
- Outcome
- Petitioner's proposed distribution confirmed; objector's claim dismissed.
- Judges
- KW Kiarie
- Legal Topics
- Succession, Distribution of Estate, Intestate Succession, Customary Distribution, Beneficiary Rights
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Henry Egesa Wanzala
Applicant
Rodgers Ombale Magina
Respondent
ACK Nasira
Interested Party
Procedural Posture
Probate and Administration / Ruling on Mode of Distribution of Estate
Legal Issues
- 1 Whether the deceased's lifetime distribution of his estate among his sons should be upheld.
- 2 Whether the objector, as a grandson, is entitled to a share beyond his father's allocation.
- 3 Whether the proposed distribution complies with section 40 of the Law of Succession Act.
Ratio Decidendi
The court found that the deceased had distributed his estate among his sons during his lifetime, including the objector's father, and there was no evidence of disinheritance or protest by any son. The objector, as a grandson, was not entitled to a share beyond his father's allocation, especially since he had already sold part of his father's share. The court held that the proposed distribution by the petitioner was consistent with section 40 of the Law of Succession Act and confirmed it as the appropriate mode of distribution. The petitioner was given six months to distribute the estate and render accounts to the court, failing which the grant would be revoked unless an extension was sought.
Court Disposition
Petitioner's proposed distribution confirmed; objector's claim dismissed.
Orders
- The proposed distribution by the petitioner is confirmed.
- The petitioner is given six months to distribute the estate and render accounts to the court.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT BUSIA
PROBATE & ADMINSTRATION NO. 21 OF 2006
IN THE MATTER OF THE ESTATE OF:
WANZALA MUCHONGO.........................................DECEASED
BETWEEN
HENRY EGESA WANZALA..................................PETITIONER
AND
RODGERS OMBALE MAGINA...............................OBJECTOR
ACK NASIRA............................................INTERESTED PARTY
RULING
1. The parties herein are disputing on the mode of distribution of the estate. According to the proposal by the petitioner who is a son of the deceased herein, the approach he has adopted is what the deceased had distributed among his sons during his lifetime. Some other portion of land had been sold to the Anglican Church of Kenya, Nasira, Nasira Primary School and Nasira Polytechnic.
2. Rodgers Ombale Magina, the objector herein is a grandson of the deceased. His contention is that he was not considered for the upper commercial part of the estate.
3. According to the petitioner, the deceased herein subdivided his land between his four sons who included the father of the objector. This was long before the objector was born. There is no evidence that the father of the objector had protested to his father’s (the deceased herein) mode of distribution.
4. There is evidence on record and which the objector did not respond to; that he had sold part of his father’s share to two people. This is an indictment on the objector that he is being propelled by greed and not in pursuit of fairness.
5. Where a deceased person has distributed his estate during his lifetime, as long as he has not disinherited any of his heirs, we cannot question as to why he did not give out equal shares. He knew his children and the rationale for the distribution was only known to him.
6. Evidence at the disposal of the court favour the proposed distribution by the petitioner. This proposal agrees with section 40 of the Law of Succession Act which states:
(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.
7. I hereby confirm the same and give the petitioner 6 months within which to distribute the estate and come back to court to render accounts. Failure to comply, the grant will automatically be revoked unless extension of time has been sought.
DELIVEREDandSIGNEDatBUSIAthis30th dayof April, 2019
KIARIE WAWERU KIARIE
JUDGE