[2013] KEHC 223 (KLR)
The court found that the protestor's proposed schedule of distribution did not comply with Section 40 of the Law of Succession Act, as it failed to allocate shares among the houses based on the number of children and surviving wives. The deceased had three houses with a total of seventeen survivors. The law requires...
Source-derived case information.
- Citation
- [2013] KEHC 223 (KLR)
- Parties
- Petitioner: Samwel Cheruiyot Rop; Petitioner: Richard Kipkorir Rop; Petitioner: Wesley Kiprono Rop; Protestor: Paul Maritim Rop
- Court
- High Court
- Court Station
- High Court at Kericho
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 317 of 2007
- Procedural Posture
- Succession Cause / Ruling on Confirmation of Grant and Distribution of Estate
- Outcome
- Grant of letters of administration intestate confirmed; estate to be distributed according to Section 40 of the Law of Succession Act.
- Legal Topics
- Intestate Succession, Distribution of Estate, Polygamous Estates, Confirmation of Grant
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Samwel Cheruiyot Rop
Petitioner
Richard Kipkorir Rop
Petitioner
Wesley Kiprono Rop
Petitioner
Paul Maritim Rop
Protestor
Procedural Posture
Succession Cause / Ruling on Confirmation of Grant and Distribution of Estate
Legal Issues
- 1 Whether the proposed schedule of distribution by the protestor complies with Section 40 of the Law of Succession Act.
- 2 How the estate of a polygamous intestate should be distributed among the houses and beneficiaries.
Ratio Decidendi
The court found that the protestor's proposed schedule of distribution did not comply with Section 40 of the Law of Succession Act, as it failed to allocate shares among the houses based on the number of children and surviving wives. The deceased had three houses with a total of seventeen survivors. The law requires the estate to be divided among the houses proportionally—5/17 to the first house, 6/17 to the second house, and 6/17 to the third house—before further distribution among members of each house. The court rejected the protestor's proposal as misleading and undertook the distribution itself, confirming the grant to the administrators and directing them to effect the distribution...
Court Disposition
Grant of letters of administration intestate confirmed; estate to be distributed according to Section 40 of the Law of Succession Act.
Orders
- The grant of letters of administration intestate made to Samwel Cheruiyot Rop, Richard Kipkorir Rop and Wesley Kiprono Rop is confirmed.
- The estate properties L.R.no.Kericho/Kipkelion/Chepseon Block3(Kipkelion)26 and L.R no. Kericho/Kapsuser/1503 shall be distributed among the three houses as follows: 1st House – 5/17, 2nd House – 6/17, 3rd House – 6/17.
Full Case Text
Judgment text and source record
70 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KERICHO
SUCCESSION CAUSE NO. 317 OF 2007
IN THE MATTER OF THE ESTATE OF STEPHEN KIPROP BETT ALIAS KIPROP BETT-DECEASED.
SAMWEL CHERUIYOT ROP
RICHARD KIPKORIR ROP ......…......…...............PETITIONERS
WESLEY KIPRONO RONO
VERSUS
PAUL MARITIM ROP.............................................PROTESTOR
RULING
On 11th October 2013, this court directed the Protestor, namely PAUL MARITIM ROP, to file a further affidavit which gives a schedule of distribution in terms of Section 40 of the Law of Succession Act. Pursuant to the aforesaid directive, the Protestor filed the affidavit he swore on 4th November 2013.
I have carefully perused the aforesaid affidavit and it is clear that Paul Maritim Rop has given the schedule of distribution in Paragraph 3 as follows:
That L.R. Kericho/Kapsuser/3503 measuring 5. 4H.a or 14. 33 acres be distributed as follows:
Joseph Boiyot Rop 2. 047Acres
Paul Maritim Rop 2. 047Acres
Vincent Kiprotich Rop 2. 047Acres
Samwel Cheruiyot Rop 2. 047Acres
Elizabeth Taparno Bett 2. 047Acres
Esther Chepwogen Mitei 2. 047Acres
Chepkemoi Chuma 2. 047Acres
The Provisions of Section 40 of the Law of Succession Act provides as follows:
40. (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.
Let me now examine whether the proposal by the Protestor is in strict compliance with the aforesaid Provision. There is no doubt that the deceased was married to the following:
Elizabeth Tarparno Bett (1st House).
Chesong'ony Bett (deceased) (2nd house).
Tabarno Bett (deceased) (3rd house).
The surviving members of each house are identified as follows:
1ST HOUSE
1. Elizabeth Taparno Bett
2. Joseph Boiyot Rop
3. Paul Maritim Rop
4. Vincent Kiprotich Rop
5. Samuel Cheruiyot Rop
2ND HOUSE
1. Esther Taputany Kipkones
2. Ruth Chepng'eno Busienei
3. Wesley Kipkemoi Rop
4. Richard Kipkorir Rop
5. Evalyne Chepkirui
6. Wilson Kiprotich Rop
3RD HOUSE
1. Cecilia Chesiele Sigilai
2. Samwel Kiprotich Rop
3. Hellen Chepkurui Rotich
4. Zeddy Chepngetich
5. Wesley Kiprono Rop
6. Liner Chepkemoi
Those who survived the deceased are seventeen (17) in total. The Provisions of Section 40 of the Law of Succession Act shows that the estate should be shared between the houses and each house to distribute their entitlement equally between their members. The estate therefore be shared as follows:
(i)1st House : 5/17
(ii)2nd House: 6/17
(iii)3rd House: 6/17
It is therefore clear that the Protestor's affidavit does not conform with the Provisions of Section 40 of the Law of Succession Act. I think the Protestor intended to mislead the court by preparing a false schedule of distribution. In view of his conduct this court has taken upon itself the responsibility of distributing the estate according to Law. The assets of the Estate which are available for distribution are:
1. L.R.no.Kericho/Kipkelion/Chepseon Block3(Kipkelion)26
2. L.R no. Kericho/Kapsuser/1503
The aforesaid properties should be distributed between the three houses as follows:
(a)1st House – 5/17
(b)2nd House- 6/17
(c)3rd House – 6/17
In the end, the grant of letters of administration intestate made to Samwel Cheruiyot Rop,Richard Kipkorir Rop and Wesley Kiprono Rop should be confirmed and distribution to be done as proposed by this court herein above.
The administrators herein are directed to give effect to the resultant certificate of confirmation of Grant by executing the necessary documents within 30 days in default the Deputy Registrar of this court is authorised to do so in place of any unwilling administrator or administrators. Each party to meet his or her own costs.
Dated, signed and delivered this 8th day of November 2013.
…..................
J.K.SERGON
JUDGE
In open court in the presence of
Mr. G. K. Korir for 2nd & 3rd Petitioner
Mr. Koech for 1st Petitioner
Mr. C. K. Korir holding brief for Mr. Ongany for the Protestor
Mr. Koech- Court clerk