[2024] KEHC 12303 (KLR)

Source-derived case information.

Citation: [2024] KEHC 12303 (KLR)
Parties: Applicant: Teresa Nyaboke Sindiga; Applicant: Arthur Sindiga; Respondent: Mary Kanunah Sindiga
Court: High Court
Court Station: High Court at Eldoret
Jurisdiction: Kenya
Case Number: Probate & Administration 155 of 1999
Procedural Posture: Probate and Administration / Judgment on Summons for Confirmation of Grant
Outcome: Summons for confirmation of grant allowed in part; estate distributed as per court's final schedule; certificate of confirmation of grant to issue.
Judges: RN Nyakundi
Legal Topics: Succession, Intestate Estate Distribution, Polygamous Estates, Confirmation of Grant, Beneficiary Entitlement, Matrimonial Property
Source Language: en

Family and Children Succession Intestate Estate Distribution Polygamous Estates Confirmation of Grant Beneficiary Entitlement Matrimonial Property

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Summary, issues, holding and outcome

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Parties

Teresa Nyaboke Sindiga

Applicant

Arthur Sindiga

Applicant

Mary Kanunah Sindiga

Respondent

Procedural Posture

Probate and Administration / Judgment on Summons for Confirmation of Grant

Legal Issues

1 Whether all the properties listed by the parties form part of the deceased's estate for distribution.
2 What is the appropriate mode of distribution of the estate of a polygamous intestate under Section 40 of the Law of Succession Act.
3 Whether the objector and her son are entitled to a share of the estate and in what proportion.

Ratio Decidendi

The court determined that only properties with clear evidence of ownership by the deceased form part of the estate. Properties lacking title documents or proof of ownership were excluded from distribution. Applying Section 40(1) of the Law of Succession Act, the court held that the estate of a polygamous intestate must be distributed among the houses, counting each surviving wife as an additional unit. However, the court exercised discretion to account for the unique circumstances, including contributions to acquisition and development, occupation, and the nature of the properties. The court adopted a distribution model that allocated most properties and assets equally among all...

Court Disposition

Summons for confirmation of grant allowed in part; estate distributed as per court's final schedule; certificate of confirmation of grant to issue.

Orders

A certificate of confirmation of grant shall be generated forthwith for endorsement by the administrators.
The estate is distributed as per the schedule set out in the judgment, with only properties proven to be part of the estate included.

Full Case Text

Judgment text and source record

123 paragraphs

In re Esxtate of Isaac Sindiga Onsare (Deceased) (Probate & Administration 155 of 1999) [2024] KEHC 12303 (KLR) (11 October 2024) (Judgment)

Neutral citation: [2024] KEHC 12303 (KLR)

Republic of Kenya

In the High Court at Eldoret

Probate & Administration 155 of 1999

RN Nyakundi, J

October 11, 2024

In re Estate of Isaac Sindiga Onsare (Deceased)

Between

Teresa Nyaboke Sindiga

1st Petitioner

Arthur Sindiga

2nd Petitioner

and

Mary Kanunah Sindiga

Objector

Judgment

1. The matter herein relates to the estate of Isaac Sindiga Onzare who died on 29th May, 1999. The Petitioners filed a petition for letters of administration which triggered an objection by Mary Kanunah Sindiga and vide this court’s judgment dated 23rd March, 2005 the objection was allowed and the Objector and her son were incorporated as beneficiaries of the estate of the late Isaac Sindiga Onzare. Subsequently, a grant was issued to Teresa Sindiga and Mary Kanunah Sindiga on 20th February, 2006.

2. The Petitioners moved this court on 7th March, 2023 through summons for confirmation seeking confirmation of the Grant issued on 20th February, 2006.

3. The Petitioners averred that the Grant is ripe for confirmation to enable the Petitioners/Administrators distribute the estate according to law. That the identification of all persons beneficially entitle to the said estate and their respective entitlements have been ascertained and determined. The Petitioners proceeded to identify the properties forming part of the deceased’s estate and proposed a model of distribution as hereunder:No. Property Size Beneficiary

A WaNjare/Bomorenda/1758 0. 012Ha Teresa Sindiga

B Kakamega/Sergoit/328 12 Acres Teresa Sindiga

C Kakamega/Sergoit/329 11 Acres Teresa Sindiga

D L.R. No. 8500 Plot No. 464 Langas Estate

Teresa Sindiga

E WaNjare/Bomorenda/1160 0. 08Ha Teresa Sindiga

F WaNjare/Bomorenda/1772 0. 17Ha Teresa Sindiga

G WaNjare/Bogiakumu/15 2 Acres Mary Kanunah Sindiga

H Eldoret Airstrip Plot 1/8 Acres Mary Kanunah Sindiga

I Plot PDP No. ELD 17/81/1A Sub Plot No. 61 17/2/99 Eldoret Municipality

Mary Kanunah Sindiga

J L.R No. 1679/111/138A Eldoret Municipality ¼ Acres Mary Kanunah Sindiga

K Motor Vehicle Reg. No. KAJ 125V Mercedes

Mary Kanunah Sindiga Bank Accountsa.National Bank of Kenya – Kisii – 67% to Teresa Sindiga – 33% to Mary Kanunahb.National Bank of Kenya – Eldoret – 67% to Teresa Sindiga – 33% to Mary Kanunahc.Standard Chartered Bank of Kenya – Eldoret 67% to Teresa Sindiga – 33% to Mary Kanunah.d.Kenya Commercial Bank Limited Kipande House – 67% to Teresa Sindiga – 33% to Mary Kanunah.

Life Policiesa.American Life Insurance Policy (now CFC Life Insurance Company) – 67% to Teresa Sindiga – 33% to Mary Kanunahb.Jubilee Insurance Company Limited – 67% to Teresa Sindiga – 33% to Mary Kanunah.

Sharesa.Kenya Airwaysb.Firestonec.Standard Chartered Bank 67% to Teresa Sindigad.Jubilee Insurance Limited 33% to Mary Kanunahe.Housing Finance Company of Kenya Ltd

4. The Objector filed an affidavit in protest of the proposed mode of distribution by the petitioners. According to the Objector, in a case where the deceased had more than one house like in this case, the law provides for distribution of his net estate, 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, making a total of 6 units in the instant case.

5. She further averred that in addition to the assets itemized in the schedule in the summons for confirmation of Grant, the deceased had shares in Serena Holdings Limited which is not captured in the schedule and also a Bank account which were held jointly with him at HFCK bank both of which form part of his estate and should be included.

6. That as regards the mode of distribution, it is not fair that both Kakamega/Sergoit/328 or Kakamega/Sergoit 329 be given to Teresa Sindiga on behalf of the 1st family for the reason that one of the said properties either Kakamega/Sergoit/328 or Kakamega/Sergoit/329 was purchased much later jointly by herself and the deceased.

7. She deposed that in 1996 to 1997, she cultivated on the said parcel of land which they had purchased jointly. She proposed that she should be given either of the parcels of land.

8. That as regards L.R No. 8500 Plot 464 Langas Estate, the said property has 4 apartments and a posho mill constructed on it.

9. That she participated in the construction of the apartments and upon completion of the apartments the deceased, herself, Brian, Durvie and Elijah Sindiga occupied the premises as a family and lived together between the years 1995-1997. That prior and after the death of the deceased, the said apartments were rented out and the posho mill was also in working condition and ought to be generating income. She proposed that the rent receivables from the apartments and posho mill be shared equally on a month to month basis amongst the 6 of them as dependants of the intestate estate.

10. The objector further proposed that the rent and income so far collected be accounted for by the 1st and the 2nd petitioners and/or the two administrators by way of rendering statement of accounts for purposes of distribution to other four (4) beneficiaries.

11. That in the alternative, after receiving the rent and income account statement from her co-administrator and her share together with her son’s of the rent and income so far collected from the said property, the said property be shared equally between Teresa and her children and herself together with her son for each family to manage their apartments on their own.

12. Further that Wanjare/Bomorenda/1758, Wanjare/Bomorenda/1160 or Wanjare/Bomorenda/1772 situated in Suneka town has a shop and a two-bedroom house developed on it and she proposed that the same ought to be sold and the proceeds divided into six (6) units.

13. That as regards Wanjari/Bogikikumu 15 is her home as they purchased the same jointly with the deceased and the title is registered jointly with the deceased.

14. That as regards properties described as Eldoret Airstrip Plot PDP No. Eld 17/81/1A and sub plot No. 61, 17/2/99 Eldoret Municipality and LR No. 1679/111/138A Eldoret Municipality are properties which in her view were surrounded with a lot of controversy, they do not exist and the title documents are also not in existence.

15. That the co-administrators have generously allocated them all to her for the reason that they are aware that the properties might not exist. That if they exist, they should be sold and the proceeds shared amongst the six units. She proposed her model as hereunder:No. Property Size Beneficiaries

1. Wanjare/Bomorenda/1758 0. 012 Ha a. Teresa Sindiga b. Mary Sindiga c. Arthur Sindiga d. Brian Sindiga e. Durvine Sindiga f. Elijah Sindiga

2 Kakamega/Sergoit/328 12 acres Teresa Sindiga

3 Kakamega/Sergoit/329 11 acres Mary Kanunah Sindiga

4 L.R. No. 8500 Plot No. 464 Langas Estate