[2015] KEHC 3687 (KLR)
The court held that Section 40 of the Law of Succession Act governs the distribution of the estate of a polygamous intestate. The estate must first be divided among the houses according to the number of children in each house, with any surviving widow counted as an additional unit. In this case, the 1st house had 11...
Source-derived case information.
- Citation
- [2015] KEHC 3687 (KLR)
- Parties
- Applicant: Emily Cherono; Respondent: Ruth Chepkemei Ngetich
- Court
- High Court
- Court Station
- High Court at Kericho
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 168 of 2007
- Procedural Posture
- Succession Cause / Ruling on Confirmation of Grant and Distribution of Estate
- Outcome
- Estate to be distributed per Section 40 of the Law of Succession Act; each parcel divided into 17 equal portions, one for each beneficiary; no order as to costs.
- Legal Topics
- Intestate Succession, Polygamous Estates, Distribution of Estate, Law of Succession Act, Beneficiary Entitlement
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Emily Cherono
Applicant
Ruth Chepkemei Ngetich
Respondent
Procedural Posture
Succession Cause / Ruling on Confirmation of Grant and Distribution of Estate
Legal Issues
- 1 How should the estate of a polygamous intestate be distributed among the beneficiaries under Kenyan law?
- 2 Does Section 40 of the Law of Succession Act require distribution by house or by individual beneficiary?
- 3 Are all children, regardless of gender, entitled to equal shares in the estate?
Ratio Decidendi
The court held that Section 40 of the Law of Succession Act governs the distribution of the estate of a polygamous intestate. The estate must first be divided among the houses according to the number of children in each house, with any surviving widow counted as an additional unit. In this case, the 1st house had 11 children and a surviving widow (12 units), while the 2nd house had 5 children and no surviving widow (5 units), totaling 17 units. The court found that the law recognizes all children as equal, and thus, each of the two parcels of land forming the estate should be divided into 17 equal portions, one for each beneficiary. This ensures fairness and compliance with the statutory...
Court Disposition
Estate to be distributed per Section 40 of the Law of Succession Act; each parcel divided into 17 equal portions, one for each beneficiary; no order as to costs.
Orders
- L.R. NO. KERICHO/KAPLELARTET/199 (10.2 Ha) to be subdivided into 17 equal portions, one for each beneficiary.
- L.R. NO. KERICHO/KAPLELARTET/203 (2.8 Ha) to be subdivided into 17 equal portions, one for each beneficiary.
Full Case Text
Judgment text and source record
64 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT AT KERICHO
SUCCESSION CASE NO. 168 OF 2007
ESTATE OF CHEPKWONY ARAP NGETICH ---DECEASED
AND
EMILY CHERONO----------------------------------------------1ST PETITIONER
RUTH CHEPKEMEI NGETICH ------------------------ 2ND PETITIONER
RULING.
This Succession Cause relates to the estate of the late CHEPKWONY ARAP NGETICHwho died on 12th July 2005.
He died intestate.
The deceased was polygamous and had two wives, namely:
1st House – Ruth Chepkemei Ngetich.
2nd House – Ludiah Chepkorir Ngetich (now deceased) and substituted by Emily Cherono.
Letters of grant of administration were issued jointly to the two widows on 3rd February 2014. Following the death of Ludia Chepkorir Ngetich her daughter Emily Cherono was on 10th December 2014 substituted in her place.
Both administrators filed summons for confirmation of grant. Each proposed their preferred mode of distribution.
Ruth C. Ngetich for the 1st house, proposed that the two parcels of land be shared among all the beneficiaries equally.
Emily Cherono for the 2nd house, proposed that the two parcels be shared out equally among the two houses.
Mr. Miruka for the 1st Petitioner submitted that since the deceased was polygamous and died intestate his estate should be shared out equally between the two houses.
Both counsels filed submissions in support of the different modes of distribution. Mr. Migiro for the 2nd Petitioner relied on Section 40 of the Law of Succession Act and Eldoret High Court Succession Cause No. 243 of 2008 in support of the 1st petitioner's preferred mode of distribution.
The undisputed facts are as follows:
(i) The deceased died intestate.
(ii) He was polygamous & had two wives.
(iii) The 2nd wife Ludia is now deceased.
(iv) The two assets forming the estate are:-
(a) L.R. NO. KERICHO/KAPLELARTET/199 (10. 2 Hectares)
(b) L.R. NO. KERICHO/KAPLELARTET/203 (2. 8 Hectares)
The beneficiaries in the 1st House are:
Ruth Chepkemei Ngetich - Widow
Samwel Yegon - Son
Daniel Yegon - Son
Julius Yegon - Son
Philiph Yegon - Son
Isaack yegon - Son
David Yegon - Son
Vincent Yegon - Son
Christina Chemutai - Daughter
Geoffry Yegon - Son
Alice Chepkorir - Daughter
Mary Cheptanui - Daughter
The beneficiaries in the 2nd House are:
Ludiah Chepkorir Ngetich - Widow (Deceased)
Jacob Yegon - Son
Josephat Yegon - Son
Emily Cherono - Daughter
Risper Chepkemoi - Daughter
Weldon Yegon - Son
The only disputed issue is the distribution. Section 40 (1) of the Law of Succession provides:
“(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”.
According to this Provision the distribution is in the first instance done among the houses according to the number of Children in each house. If there is a surviving widow she is added as an additional unit to the number of Children.
In this case the 1st house which is the house of Ruth Chepkemei Ngetichhas 11 Children plus a surviving widow = 12 Units.
On the other hand the 2nd house which is the house of Ludiah Chepkorir Ngetichhas 5 Children with no surviving widow = 5 units.The total number of units is therefore 17 (Seventeen).
The Law of this land recognizes all Children irrespective of gender and/or sex to be equal.
The parties herein were unable to agree on an amicable mode of distribution. Section 40 of the Law of Succession Act shall therefore be applied in the instant case. The larger house will get a larger share.
It therefore follows that each of the two parcels of land shall be divided into Seventeen (17) equal portions so that none says he/she was given a lesser share.
For avoidance of doubt the mode of distribution shall be as follows:-
L.R. NO. KERICHO/KAPLELARTET/199 (10. 2Ha)to be subdivided into Seventeen (17) equal portions, one for each beneficiary as shown in Paragraph 5 (v).
L.R. NO. KERICHO/KAPLELARTET/203 (2. 8Ha)to be subdivided into Seventeen (17) equal portions, one for each beneficiary as shown in Paragraph 5(v).
Since the parties are of one family I will not award costs to any of them. Each to bear her own costs.
Dated, Signed and delivered in open Court this 17th day of July 2015.
Orders accordingly.
Right of Appeal explained.
H.I ONG'UDI
JUDGE.