[2022] KEHC 12299 (KLR)
The court found that while the proposal for distribution by Timothy Ngurete Simiyu was structured between the houses as required by section 40(1) of the Law of Succession Act, it failed to comply with section 40(2) and sections 35 to 38, as there was no disclosure of all members of each house. Full disclosure is...
Source-derived case information.
- Citation
- [2022] KEHC 12299 (KLR)
- Parties
- Applicant: Timothy Ngurete Simiyu; Respondent: Undisclosed (represented by Mr. Momanyi)
- Court
- High Court
- Court Station
- High Court at Kakamega
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 17 of 2018
- Procedural Posture
- Succession Cause / Post Judgment, Distribution Proposals and Compliance Directions
- Outcome
- Further affidavit required; distribution deferred pending compliance.
- Judges
- WM Musyoka
- Legal Topics
- Intestate Succession, Polygamous Estates, Distribution of Estate, Disclosure of Beneficiaries
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Timothy Ngurete Simiyu
Applicant
Undisclosed (represented by Mr. Momanyi)
Respondent
Procedural Posture
Succession Cause / Post Judgment, Distribution Proposals and Compliance Directions
Legal Issues
- 1 Whether the proposals for distribution of the estate comply with section 40 of the Law of Succession Act regarding polygamous intestate estates.
- 2 Whether there has been sufficient disclosure of all members of each house as required by law before distribution.
Ratio Decidendi
The court found that while the proposal for distribution by Timothy Ngurete Simiyu was structured between the houses as required by section 40(1) of the Law of Succession Act, it failed to comply with section 40(2) and sections 35 to 38, as there was no disclosure of all members of each house. Full disclosure is necessary to ensure equitable distribution and compliance with statutory requirements. The court therefore directed that a further affidavit be filed disclosing all members of the deceased's family in each house, including widows, sons, daughters (married or unmarried, dead or alive), and, where applicable, the children of any deceased sons or daughters, in accordance with section...
Court Disposition
Further affidavit required; distribution deferred pending compliance.
Orders
- Timothy Ngurete Simiyu shall file a further affidavit disclosing all members of the family of the deceased in each house, including widows, sons, daughters (married or unmarried, dead or alive), and, if any are deceased, their surviving children, within 30 days.
- The matter shall be mentioned for compliance and further directions.
Full Case Text
Judgment text and source record
17 paragraphs
In the Matter of the Estate of Simiyu Wasike Walubengo (Deceased) (Succession Cause 17 of 2018) [2022] KEHC 12299 (KLR) (29 July 2022) (Ruling)
Neutral citation: [2022] KEHC 12299 (KLR)
Republic of Kenya
In the High Court at Kakamega
Succession Cause 17 of 2018
WM Musyoka, J
July 29, 2022
IN THE MATTER OF THE ESTATE OF SIMIYU WASIKE WALUBENGO (DECEASED)
Ruling
1. On 19th March 2021, I delivered a judgment, wherein I distributed the estate. Subsequently, the orders made in that judgment were set aside vide a consent, dated 15th September 2021, which I adopted herein on 16th September 2021.
2. The parties agreed on filing proposals on distribution, to form basis for distribution of the estate. Of the two sides in the dispute, only one side filed proposals, through Mr. Samba, Advocate. The side represented by Mr. Momanyi, Advocate, did not. Oral evidence was taken, through Timothy Ngurete Simiyu. The proposal was distribution according to the children of the deceased, he having died a polygamist.
3. Distribution of the estate of a polygamist is according to section 40 of the Law of Succession Act, Cap 160, Laws of Kenya. Section 40(1) envisages distribution according to the houses. The distribution according to houses is still dependent on sections 35 to 38 of Law of succession Act, and those provisions must be complied with, in terms of disclosure of the members of each house. That is critical, to ensure equity in distribution
4. For avoidance of doubt, section 40 of the Law of succession Act states 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.(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. ”
5. The proposal by Timothy Ngurete Simiyu is intended to be between the houses. He made no attempt to disclose the members of the family of the deceased from each house. Whereas that may be alright for the purposes of section 40(1), it is not sufficient for section 40(2), for sections 35 and 38 will not have been complied with. I am not able to tell the composition in each house, and I cannot, therefore, gauge the equity of the distribution proposed by Timothy Ngurete Simiyu.
6. Let Timothy Ngurete Simiyu file a further affidavit to disclose all the members of the family of the deceased, in each house, be they widows or sons or daughters, married or unmarried, dead or alive. Should any sons or daughters of the deceased be dead, then section 41 of Law of Succession Act, should be complied with, by disclosure of the children who will have survived them.
7. The affidavit shall be filed within 30 days. I shall distribute the estate only after there has been full compliance. The matter shall be mentioned for compliance and further directions.
RULING DELIVERED, DATED AND SIGNED IN OPEN COURT AT KAKAMEGA THIS 29TH DAY OF JULY 2022W.M. MUSYOKAJUDGE