[2017] KEHC 1045 (KLR)
The court held that in the absence of an agreement between the parties on the mode of distribution, the estate of a polygamous intestate must be distributed in accordance with Section 40(1) of the Law of Succession Act. This provision requires that the estate be divided among the houses based on the number of...
Source-derived case information.
- Citation
- [2017] KEHC 1045 (KLR)
- Parties
- Applicant: Kirotiana Enole Nchue; Respondent: Noonkokua Ene Nchue
- Court
- High Court
- Court Station
- High Court at Kisii
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 315 of 2014
- Procedural Posture
- Succession Cause / Ruling on Confirmation and Distribution of Estate
- Outcome
- Grant of letters of administration confirmed; estate distributed according to statutory formula; each party to bear own costs.
- Judges
- WA Okwany
- Legal Topics
- Intestate Succession, Polygamous Estates, Distribution of Estate, Confirmation of Grant
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Kirotiana Enole Nchue
Applicant
Noonkokua Ene Nchue
Respondent
Procedural Posture
Succession Cause / Ruling on Confirmation and Distribution of Estate
Legal Issues
- 1 Whether the estate of the deceased should be distributed according to the number of units in each house as per Section 40(1) of the Law of Succession Act.
- 2 Whether the respondent is entitled to occupy the portion of land allocated to the first house.
- 3 How the estate should be divided among the beneficiaries in a polygamous setting.
Ratio Decidendi
The court held that in the absence of an agreement between the parties on the mode of distribution, the estate of a polygamous intestate must be distributed in accordance with Section 40(1) of the Law of Succession Act. This provision requires that the estate be divided among the houses based on the number of children in each house, with each surviving wife counted as an additional unit. The court found that the first house comprised 11 units (including the widow) and the second house 8 units, making a total of 19 units. The estate, consisting solely of LR NO. Transmara/Osinoni/103 measuring 59.63 hectares, was to be divided such that each unit receives 3.13 hectares. Consequently, the...
Court Disposition
Grant of letters of administration confirmed; estate distributed according to statutory formula; each party to bear own costs.
Orders
- The estate of the deceased, LR NO. Transmara/Osinoni/103 measuring 59.63 hectares, shall be distributed among the beneficiaries as per Section 40(1) of the Law of Succession Act: 34.43 hectares to the first house and 25.04 hectares to the second house.
- The children and widows in each house shall divide their respective shares in accordance with Sections 35-38 of the Law of Succession Act.
Full Case Text
Judgment text and source record
54 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KISII
SUCCESSION 315 OF 2014
IN THE MATTER OF THE ESTATE OF TENGEYO OLE NCHUE…DECEASED
BETWEEN
KIROTIANA ENOLE NCHUE.......................PETITIONER
VERSUS
NOONKOKUA ENE NCHUE....................RESPONDENT
RULING
1. TENGEYO OLE NCHUE(hereinafter “the deceased”) died intestate on 5th March 2010. The deceased was prior to his death married to two wives namely; Kirotiana Enole Nchue (hereinafter referred to as the 1st House”) and Noonkua Ene Nchue (hereinafter “the 2nd House”).
2. Grant of letters of administration intestate was issued to his two widows on 15th April 2015. The two houses later disagreed on how to share the estate of the deceased amongst all his beneficiaries. The deceased owned a parcel of land known as LR NO. Transmara/Osinoni/103 measuring 59. 63Ha (hereinafter “the suit land”) and he had no liabilities.
3. It was the applicant’s (1st House) submission that the deceased had, during his life time, sub-divided and settled each house on one half of the said land where he put up a homestead for each wife together with her children. The applicant claims that the respondent (2nd house) moved her homestead from where the deceased had settled her to the portion earmarked for the 1st house.
4. The main bone of contention in this case is that the respondent is not willing to occupy the ½ of the suit land that was given to her house by the deceased and persists on occupying the portion that belongs to the first house.
5. No amount of out of court talks has been able to make the 2 protagonists reach a settlement on distribution thereby necessitating this court’s determination on the mode of distribution of the deceased’s estate.
6. Where parties fail to agree on the mode of distribution, the court falls back and is guided by the provisions of Section 40 (1) of the Law of Succession Act which stipulates as follows:
“40. Where intestate was polygamous
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.”
7. A “house” refers to a family unit composed of a wife, whether alive or dead at the time of the death of the husband and the children of that wife. Section 40 (1) of the Law of Succession Act provides for the consideration of the number of children in each house and does not require that the estate of a polygamous intestate be divided equally (See Rono Vs Rono & Another (2005) E.A 363).
8. It was not in dispute that the deceased’s two houses consisted of the following members:
1st House
1. Kirotiana Enole Nchue Widow
2. Charles Oloishuru Ole Nchue Son
3. Jackson Lemashon Pere Son
4. Peter Lepita Tengeiyo (deceased) Son
5. Samwel Ronkei Nchue Son
6. Julius Tenkei Pere Son
7. Daniel Tengeyio Son
8. Ereteti Nchue Ole Kononkoi Daughter
9. Cicillia Nchue Ole Kakai Daughter
10. Paranai Nchue Ole Nkosek Daughter
11. Tiile Nche Semeyioy Daughter
2nd House
1. Noonkua Ene Nchue Widow
2. Susan Nchue Ole Kaloi Daughter
3. Lenkai Nchue Son
4. Nchue Ole Waigeyio Son
5. Shakini Nchue Ole Kuso Daughter
6. Dancan Ledama Nchue Daughter
7. Seenoi Nchue Daughter
8. Silvia Noomali Nchue Daughter
9. It was also not disputed that one beneficiary Peter Lepita Tengeiyio (deceased) was survived by a wife and children who will automatically benefit from his share of the deceased’s estate.
10. From the above list of the deceased’s houses, it is clear that the 1st house has 11 units (the widow inclusive) while the 2nd house has 8 units making a total of 19 units.
11. As I have already stated in this judgment, the estate of the deceased consists of the suit land measuring 59. 63 Ha which if shared equally among the 19 units (dependants) translates into 3. 14 Ha (7. 85 Acres) each.
12. Going by the above calculation and division, I find that the first house shall get 3. 13 Ha x11 = 34. 43Ha while the 2nd House will get 3. 13 x8 = 25. 04 Ha.
13. The children in each house and their respective mothers will divide their house’s share in accordance with the provisions of sections 35-38 of the Law of Succession Act.
14. The grant of letters of administration issued to the deceased’s widows on 15th April 2015 is hereby marked as confirmed as stated hereinabove.
15. Each party shall bear his/her own costs.
Dated, signed and delivered in open court this 13th day of December, 2017
HON. W. A OKWANY
JUDGE
In the presence of:
Mr. Wesonga for the Petitioner
Mr. Mwalo for the Respondent
Omwoyo: Court Clerk