[2011] KEHC 2770 (KLR)
The court held that, in the absence of a surviving spouse and given that the deceased was monogamous, the Law of Succession Act mandates equal distribution of the estate among the surviving children. The widow, having agreed to take only one acre and dispossess herself of the remainder, does not alter the statutory...
Source-derived case information.
- Citation
- [2011] KEHC 2770 (KLR)
- Parties
- Applicant: Indeche Victoria Makhelo; Applicant: Andrea Matakwa Makhero; Respondent: Josephat Odieba Makhero
- Court
- High Court
- Court Station
- High Court at Kakamega
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 786 of 2009
- Procedural Posture
- Succession Cause / Ruling on Distribution of Estate
- Outcome
- Grant confirmed; estate to be distributed equally among beneficiaries as per court's ruling.
- Legal Topics
- Intestate Succession, Distribution of Estate, Equal Sharing Among Children
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Indeche Victoria Makhelo
Applicant
Andrea Matakwa Makhero
Applicant
Josephat Odieba Makhero
Respondent
Procedural Posture
Succession Cause / Ruling on Distribution of Estate
Legal Issues
- 1 Whether the distribution of the deceased's estate among the beneficiaries should be equal as per the Law of Succession Act.
- 2 Whether the widow is entitled to a specific portion of the estate or should share equally with the children.
Ratio Decidendi
The court held that, in the absence of a surviving spouse and given that the deceased was monogamous, the Law of Succession Act mandates equal distribution of the estate among the surviving children. The widow, having agreed to take only one acre and dispossess herself of the remainder, does not alter the statutory requirement for equal sharing among the children. No justification was provided for the unequal shares proposed by the administrators. Therefore, the estate should be distributed equally among the children, with the widow receiving the portion she agreed to, and the remaining land divided equally among the sons.
Court Disposition
Grant confirmed; estate to be distributed equally among beneficiaries as per court's ruling.
Orders
- The grant of letters of administration is confirmed in the terms set out in the ruling.
- Land parcel No. Butsotso/Indangalasia/47 to be distributed as follows: Indeche Victoria Makhelo - 1.0 acre; each of the six sons - 5.8 acres each.
Full Case Text
Judgment text and source record
47 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT KAKAMEGA
SUCCESSION CAUSE NO. 786 OF 2009
IN THE MATTER OF THE ESTATE OF THE LATE LAURENT MAKHELO ALUTSESHE– DECEASED
A N D
INDECHE VICTORIA MAKHELO &
ANDREA MATAKWA MAKHERO...........................................................PETITIONERS
RULING
1. In the Petition for a grant of letters of administration filed on 14. 12. 2009, Indeche Victoria Makhelo and Andrea Matakwa Makhero indicated that the following persons survived the deceased, Laurent Makhelo Alutseshe who died on 7. 3.2006;
i)INDECHE VICTOR MAKHERO
ii)ANDREW MATAKWA MAKHERO
iii)JOSEPHAT ODIEBA MAKHERO
iv)JOHN SHIYONZO MAKHERO
v)MICHAEL ALUTSESHE MAKHERO
vi)ERNEST OCHWEYA MAKHERO
vii)MAURICE OMWANDA MAKHERO
2. In the same Petition, it is indicated that the only asset that was available for distribution was land parcel No. Butsotso/Indangalasia/47.
3. A grant of letters of administration was made to the Petitioners on 16. 3.2010 and in an application dated 23. 3.2010, they proposed that the said land be shared out as follows;
i)INDECHE VICTOR MAKHERO- 1. 0 acre
ii)ANDREW MATAKWA MAKHERO- 6. 0 acres
iii)JOSEPHAT ODIEBA MAKHERO- 5. 5 acres
iv)JOHN SHIYONZO MAKHERO- 6. 0 acres
v)MICHAEL ALUTSESHE MAKHERO- 6. 0 acres
vi)ERNEST OCHWEYA MAKHERO- 5. 5 acres
vii)MAURICE OMWANDA MAKHERO- 6. 0 acres
4. On 29. 9.2010, Josephat Odieba Makhero, complained that the above distribution was unfair and that the land should be shared equally. I gave parties time to discuss the matter and finally on 8. 12. 2010, they agreed that a Ruling on distribution can be made.
5. What is the law on the subject? It is clear to me that the deceased was monogamous and there is no evidence that he had more than one house. That being the case, S. 38 of the Law of Succession Act, Cap 160 Laws of Kenya provides as follows;
“S. 38 – Where an intestate has left a surviving child or children but no spouse, the net intestate estate shall, subject to the provisions of sections 41 and 42, devolve upon the surviving child, if there be only one, or be equally divided among the surviving children.”
6. Looking at the above section against the proposal by the Administrators two issues are clear;
i)the deceased’s widow has only given herself one acre out of the whole parcel of land.
ii)the 35 acres of land remaining has been shared out to the sons of the deceased in shares of 5. 5 acres or 6. 0 acres respectively. No reason for doing so has been given.
7. It is clear that once the widow agrees to disposess herself of the only asset which she was entitled to for life, it means that the beneficiaries ought to share the land equally as proposed by Josphat Odieba. I say so because the Law of Succession Act treats each child of the deceased as equal and barring any disposition or bequest to any of them while the deceased was alive, each should inherit an equal portion of the land as the other.
8. In the event, the land should be inherited as follows;
i)INDECHE VICTORIA MAKHERO- 1. 0 acre
ii)ANDREW MATAKWA MAKHERO- 5. 8 acres
iii)JOSEPHAT ODIEBA MAKHERO- 5. 8 acres
iv)JOHN SHIYONZO MAKHERO- 5. 8 acres
v)MICHAEL ALUTSESHE MAKHERO- 5. 8 acres
vi)ERNEST OCHWEYA MAKHERO- 5. 8 acres
vii)MAURICE OMWANDA MAKHERO- 5. 8 acres
9. The grant should be confirmed in the above terms.
10. Costs in the cause.
11. Orders accordingly.
Delivered, Dated and Signed at Kakamega this 14th day of April, 2011.
ISAAC LENAOLA
J U D G E