https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/401

**iREPUBLIC OF KENYA** **IN THE ESTATE OF THE LATE ODUMA WERE ODUMA** **SUCCESSION CAUSE NO. 84 OF 2024** **RULING** 1. Before me is a summons for confirmation of grant dated 23rd day of September 2025 filed by the 2nd petitioner herein (JOHN MARK ODUMA). According to him, the deceased’s estate comprises parcels of land known as SAMIA/BUTABONA/1367 measuring approximately 3.00HA and L.R No. SAMIA/BUTABONA/327, measuring approximately 5.60 HA. That the deceased was survived by the following: 2. Risper Otieno- Grand-Daughter 3. Joseph Were- Son 4. Jesca Namenya-Daughter 5. Eunice Oduma- Daughter 6. Christine Anyango- Daughter, 7. Himself- Son 8. Dorris Adiambo- Daughter In Law 9. Jenefesa Auma Oduma- Widow 10. Fredrick Pamba Oduma- Son 11. Caroline Akello- Daughter 12. Benard Wandera – Son 13. Everline Shikuku- Daughter In Law 14. Emmanuel Mukora- Grandson. 15. His proposed mode of distribution for the two estates is that each of the beneficiaries, save for the widow who is entitled to a life interest in both estates, the rest each gets an equal share of each of the parcels being 0.25 HA each for SAMIA/BUTABONA 1367 and 0.467ha each in SAMIA/BUTABONA 327. 16. The 1st petitioner (FREDRICK PAMBA ODUMA) filed his summons for confirmation of grant dated 10th October 2025(the same is hereinafter referred to as a protest and the said petitioner henceforth referred to as the protestor for purposes of these proceedings). The protestor agreed with the list of survivors of the estate as well as the parcels of land comprising the deceased’s estate. Where he differed was the mode of distribution for the said estates. His proposal was as follows: 17. SAMIA/BUTABONA/ 1367 measuring approximately 3.00HA, he proposed as follows: Risper Atieno Solomon 1.00HA, Janefesa Auma, Fredrick Pamba, Benard Wandera, Caroline Akello, Nelly Oduma, Silvanus Oduma, Lawrence Ouma, all to each have an equal share of 0.77HA John Mark Oduma, Eunice Oduma, Christine Anyango, Doris Adiambo, Joseph Were, and Jesca Namenya all to each get 0.14 ha John Mark Oduma, Joseph Were, Jesca Namenya, Eunice Oduma, Christine Anyango, Doris Adambo to each get 0.76HA each 1. As for LR NO. SAMIA/BUTABONA 327 measuring 5.60HA, the protestor proposed distribution as follows: John Mark Oduma, Joseph Were, Jesca Namenya Eunice Oduma Christine Anyango And Dorris Odiambo To Each Get 1.79ha Rispa Atieno, Janefesa Auma, Fredrick Pamba Oduma, Lawrence Ouma, Benard Wandera, Caroline Akello, Nelly Oduma And Sylvanus Oduma To Each Get An Equal Share Of 1.16HA And Fredrick Pamba To Get 0.45HA 1. In support of their proposals, the protestor Fredrick Pamba testified that he had no objection to the 2nd petitioner’s proposal of equal share for each parcel of land to each of the beneficiaries. He justified inclusion of Sylvanos and Lawrence as they were the children of his late brother Stephen Shikuku and Nelly, who is also the late brother’s child from the 1st wife. That, in essence, the children of his late brother as a family would get a larger share than the rest of the beneficiaries. 2. In support of his proposal, the 2nd petitioner stated that the protestor was his brother. That at no time did the family ever sit to agree on the mode of distribution of their late father’s estate. That it was only fair that all the beneficiaries get an equal share of the estate parcels of land. That he proposed that Everlyne get the share of his late brother Shikuku as his widow, even though he had 2 wives. She is the 1st wife of his late brother. 3. In his submissions, the protestor classified the deceased’s survivors into houses as follows: 1st house comprising of Margaret Oduma- widow (deceased)Solomon Bwire -son (Deceased) and Rispa Atieno granddaughter 2nd house comprising of Hendrica Oduma -widow (deceased), Joseph Were -son, Jesca Namenya- daughter, Eunice Oduma- daughter, Christine Anyango- daughter, John Mark Oduma- Son and Patrick Nyongesa – son(deceased represented by Doris Adiambo) 1. 3rd house represented by Janefesa Auma Oduma- widow, Fredrick Pamba- son, Caroline Akello- Daughter, Benard Wandera -son, Nangira Oduma- daughter (deceased) and Stephen Shikuku -son (deceased represented by Silvanus Oduma from the 1st wife and Lawrence Oduma from his 2nd wife). That the proposal by the 2nd petitioner to share the property equally was not fair in accordance with section 40 of the Law of Succession Act. Re relied on the cases of In re estate of John Muia Kalii (Deceased) [2008] e KLR 2. The 2nd petitioner submitted that section 40 of the Law of Succession provided for equal shares for all the beneficiaries, hence just. He relied on the case of Rono Vs Rono & Another [2005] e KLR. That the share belonging to the petitioner’s late brother, Stephen Shikuku, ought to be allocated to his widow to hold in trust for all his children, in accordance with section 29 of the Law of Succession Act. That failure to allocate her land and instead allocate it to her sons and the son to her co-wife will render her with no estate allocated and in contravention of her benefit of life interest. That the portions proposed by the protestor, on the grounds that the same was agreed by the family, were unsupported by evidence and hence ought to be rejected. He relied on the case of **Re Estate of Lerionka Ole Ntutu(Deceased) [2019] Eklr** and the case of Re **Estate of M’Ngarithi M’Miriti (Deceased)[2017] Eklr** **Analysis and determination.** 1. From the above, the core issues for determination are: 1. The appropriate mode of distribution of the estate’s assets. 2. The application of Section 40 of the Law of Succession Act in the circumstances of this case. 2. Section 40(1) of the Law of Succession Act (Cap 160) provides that the net intestate estate of a polygamous man shall, in the first instance, be divided among the houses according to the number of children in each house, adding any surviving wife as an additional unit. Each house’s share is then divided equally among its members. The Court of Appeal in Rono v. Rono [supra] clarified that the section’s intention is to achieve fairness, not mathematical equality, but also not to unfairly prejudice any house or individual beneficiary. 3. From the evidence and submissions, there is no clear consensus or family agreement on a house-based distribution. The protestor’s proposal for unequal shares is not supported by minutes or documentation of any such agreement. The 2nd petitioner’s proposal is in line with the guiding statute; however, I differ on one aspect, that is, the life interest aspect awarded to the deceased’s widow. The court in [Ripples International v Attorney General & another; FIDA (Interested Party) [2022] KEHC 13210 (KLR)](https://new.kenyalaw.org/akn/ke/judgment/kehc/2022/13210/eng%402022-09-29) declared the provisions of section 35 of the Law of Succession Act unconstitutional. The same court in the case of ***Kirera & another v Land Registrar, Meru Central & 2 others; Marangu & another (Interested Parties) [2024] KEHC 2143 (KLR)*** held that instead of the life interest, their share ought to be awarded as though they are a unit by themselves. “*Abiding by the provisions of Section 40 of the*[*Law of Succession Act*](https://new.kenyalaw.org/akn/ke/act/1972/14)*the widow of the deceased ought to have been considered as a unit of the estate as opposed to granting her life interest in the estate….”* 1. While I agree with equal share among all the beneficiaries, I therefore find that the widow of the deceased herein, Janefesa Auma Oduma, is entitled to a share of each of the two estates as a separate unit from her children and the children of the other houses. 2. Another dispute between the petitioners is the distribution among the children of the late Stephen Shikuku, a son to the deceased who is also deceased. The two petitioners agree that he is survived by one of his widows by the name Everline Shikuku, her children, and the children of her late co-wife. 3. The parties need to understand that only Stephen Shikuku was entitled to an equal share of the estate of his father equal to that of his siblings. Just because he had 2 wives does not mean that each wife, even at his demise, is entitled to a separate share of the estate of the deceased herein. They can only share among themselves the portion of the estate herein allocated to Stephen Shikuku. 4. The protestor's proposal to allocate separate shares to each of the late Stephen's children is therefore unfair to the other beneficiaries. Grandchildren can only inherit what their parent is entitled to. The Court of Appeal in ***Christine Wangari Gachenge vs. Elizabeth WanjiruEvans & 11 Others [2014] eKLR*** stated that: “*The law is on section 41. If a child of the intestate has predeceased the intestate, then that child’s issue alive or en ventre sa mere on that date of the intestate’s death will take an equal share per stirpes contingent on attaining the age of majority. Per stirpes means that the issue of a deceased child of the intestate take between them the share their parents would have taken had the parent been alive at the intestate’s death.”* 1. ***In Re Estate of Veronica Njoki Wakagoto (Deceased)[2013] eKLR,*** on the same issue, it was held that :“*Under Part V, grandchildren have no right to inherit their grandparents who die intestate after1st July 1981. The argument is that such grandchildren should inherit from their own parents. This means that the grandchildren can inherit only indirectly from their grandparents, through their own parents, the children of the deceased. The children inherit first and thereafter grandchildren inherit from the children. The only time grandchildren inherit directly from their grandparents is when the grandchildren’s own parents are dead. The grandchildren step into the shoes of their parents and take directly the share that ought to have gone to the said parents.”* 1. Therefore, in the absence of a contrary family agreement, and having considered the law and facts, I am persuaded that the distribution should be that each house shall be considered a unit under Section 40, with widows and children as units for purposes of apportionment and that the share of any deceased son Stephen Shikuku should go to his widow to hold in trust for all his children, as provided for under Section 29. **Disposition** 1. The estate of the deceased shall be distributed equally among all surviving children and the widow (***the 13 beneficiaries as listed by the 2nd petitioner in his summons dated 23/9/2025)*** as follows: L. R NO. SAMIA/BUTABONA/1367 measuring approximately 3.00 ha, shall be as 0.23ha each, while SAMIA/BUTABONA/327 measuring approximately 5.60HA at 0.4307ha each. 1. The share of the late Stephen Shikuku shall devolve upon his surviving widow, Everline Shikuku to hold in trust for ALL his children. 2. Right of appeal within 30 days hereof. Orders accordingly. Right of appeal within 30 days explained. DATED, SIGNED, AND DELIVERED AT PORT VICTORIA THIS 9TH DAY OF JULY 2026 in the presence of Ms Nabulindo for the 2nd petitioner and Mr. Ouma for the 1st petitioner. HON. ANNE NJERU SENIOR RESIDENT MAGISTRATE