Nyolo v Ojow & another (Family Appeal E007 of 2025) [2026] KEHC 12787 (KLR) (30 July 2026) (Judgment)

 REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT KISUMU COUNTY COURT NAME: KISUMU HIGH COURT CASE NUMBER: HCFA/E007/2025 ZEDEKIA AWANDU NYOLO VS CAROLINE AWUOR OJOW AND PAMELA JUMA KIYIER JUDGMENT ***(Arising from the judgement of the magistrate court delivered on 24th February, 2025 by Hon F.M. Rashid in Kisumu CM Succession Cause No. 461 of 2022)*** # INTRODUCTION * 1. This appeal arises from the judgement of the magistrate court delivered on 24th February, 2025 by Hon. Rashid in Kisumu CM Succession cause No. 461 of 2022. 2. The Appellant herein had petitioned for Grant of Letters of Administration to the Estate of Nyolo Ragwel and a grant of letters of administration intestate was issued on 27th October, 2020, the same was due for confirmation when the objector filed summons for revocation of grant. 3. The trial court duly entered judgement and held, *“that as parties have agreed that the assets available for distribution are Kisumu/ Kolunje 1468,* *Kisumu/Kolunje 727, Kisumu/Kolunje 117, the mode of distribution will be as follows;* *Kisumu/Kolunje/1468 shall be shared equally among all beneficiaries Kisumu/Kolunje 727 shall be occupied by the 1st Objector and Phoebe Atieno whose homesteads are situate.* *Kisumu/ Kolunje/ 117 shall be equally distributed among all the beneficiaries Each party shall bear their own costs.”* * 1. Aggrieved by the decision of the trial court, the Appellant appealed to this appellate court. It is imperative therefore to look at the submissions by each party, consider the evidence tendered at the trial court and the proceedings before reaching a determination. # SUBMISSION BY PARTIES **Appellant’s Submissions** 1. The Appellant contended, under Grounds 1 and 6 of the appeal, that the trial magistrate erred in law and fact by misdirecting herself on the issues raised and by failing to properly evaluate the entirety of the evidence presented before distributing the deceased’s estate. 2. The Appellant, as Administrator of the Estate of the late Nyolo Ragwel, petitioned for letters of administration intestate and proposed a mode of distribution that included the children of his deceased brothers. He maintained that this was consistent with the law of succession. The Respondents subsequently filed proceedings seeking revocation of the grant. 3. The Appellant submitted that the 1st Respondent, Caroline Awuor Ojow, a daughter-in-law of the deceased, admitted that her sons had been included in the proposed distribution but objected because she preferred to be registered personally. He further argued that she had already benefited from the estate, having acknowledged that the land on which she currently resides was purchased using proceeds from the sale of Kisumu/Kolunje/25, a property belonging to the deceased, and therefore her objections were made in bad faith. 4. Regarding the 2nd Respondent, Pamela Juma Kiyier, the Appellant submitted that she sought appointment as a co-administrator and opposed the proposed distribution on the basis that it had not been discussed by the family. She also preferred that the estate remain in the deceased’s name and admitted that other daughters of the deceased, namely Helida Opondo, Mary Adhiambo, and Consolata Atieno Ragwel, should be recognized as beneficiaries. 5. The Appellant further submitted that PW3, Phoebe Otieno, initially supported succession through her sons but later changed her position and sought to be included personally in place of her late husband. 6. The Appellant maintained that he acted prudently by including the adult sons of his deceased brothers as beneficiaries so that they could directly inherit their grandfather’s ancestral estate. He further stated that the 1st Respondent had been uncooperative during the succession process despite efforts by the area chief to include her household. 7. The properties comprising the estate were identified as Kisumu/Kolunje/117 (0.12 Ha), Kisumu/Kolunje/1468 (1.3 Ha), and Kisumu/Kolunje/727 (1.4 Ha). The deceased was polygamous, and his surviving beneficiaries comprised the children of both houses, together with the families of his deceased sons. 8. Under Grounds 2, 3, 4, and 5, the Appellant argued that the trial court failed to properly ascertain all persons entitled to inherit the estate. Relying on Sections 35, 36, 38, and 39 of the Law of Succession Act, he submitted that beneficiaries should be identified from the immediate family and other persons entitled under the Act. 9. The Appellant contended that the trial magistrate failed to consider the entirety of the net estate and consequently distributed it unequally, thereby discriminating against the Appellant and the deceased’s daughters. 10. He further challenged the distribution of Kisumu/Kolunje/727, arguing that while parcels Kisumu/Kolunje/1468 and Kisumu/Kolunje/117 were ordered to be shared equally among beneficiaries, the court adopted a different and legally unsupported approach for parcel Kisumu/Kolunje/727 by allocating occupation rights to the 1st Respondent and Phoebe Otieno based on the location of their homesteads, to the exclusion of other beneficiaries. 1. Relying on Section 29 of the Law of Succession Act, the Appellant submitted that grandchildren are entitled to inherit the share that would have devolved upon their deceased parents. He argued that the 1st Respondent, as a daughter-in-law, was not herself a beneficiary of the deceased’s estate and could only hold property in trust for her children, particularly where they inherited through their late father. 2. The Appellant also relied on Section 38 of the Law of Succession Act and argued that the estate ought to have been distributed equally among all beneficiaries irrespective of occupation or the existence of homesteads on particular parcels. According to him, occupation should only be considered to ensure that the portion occupied corresponds with a beneficiary’s rightful share and should not be used to exclude other beneficiaries from inheritance. 3. Consequently, the Appellant prayed that the appeal be allowed, the judgment and decree of the trial court be set aside, and the estate be redistributed equally among all beneficiaries. He also sought the costs of both the appeal and the proceedings before the trial court. **Respondent’s Submissions** 1. The Respondents submitted that, to set the record straight from the proceedings before the trial court, the respondents submit that the intestate estate subject for distribution is for the deceased Nyolo Ragwel pursuant to the evidence of the parties before the trial court, it is not contested that the deceased had two wives who are since deceased and left the following beneficiaries; (1st wife’s house Zedekiah Nyolo Awandu, Hilda Opondo, Mary Adhiambo, John Ocholla( deceased survived by Phoebe Atieno) (2nd Wife’s House, Pamela Juma Kiyier and George Anam (survived by Caroline Awuor Ojow Anam) 2. It is not disputed that the deceased’s assets available for distribution are; Kisumu/Kolunje/1468, Kisumu/Kolunje/727, Kisumu/ Kolunje/117. 3. The Respondents submits that the Appellant had filed for letters of administration seeking to inherit from the estate wherein he obtained letters of administration intestate. He later filed for summons for confirmation dated 8th November 2025 and that is when the respondents lodged an objection seeking to revoke the grant on account of fraud and concealment of material facts and also objecting to the mode of distribution. This matter proceeded for hearing viva voce and the court rendered a decision distributing the estate. 4. On the first issue submitted upon by the respondents is on whether the trial learned magistrate erred in the distribution of the estate of the deceased. The magistrate revoked the grant of letters of administration issued to the Appellant and issued a joint grant in the names of the Appellant, the Respondents and Phoebe Atieno which finding is not disputed in the Appeal. She went ahead and distributed the estate as; Kisumu/Kolunje/1468 to be shared equally among all beneficiaries, Kisumu/ Kolunje/727 shall be occupied by the 1st Respondent and Phoebe Atieno whose homesteads are situate therein and parcel Kisumu/Kolunje 117 to be distributed equally among all beneficiaries. 5. The Respondents submitted that the Appellant averred that the distribution of parcel Kisumu/Kolunje/727 to the 1st Respondent and phoebe Atieno who were daughter in-laws acquire bigger share in the entire estate. In response to that, the respondents submits that during the hearing, the Appellant admitted that none of his sisters who are still alive were included in the mode of distribution filed by him for adoption before court, his mode of distribution was therefore biased as it excluded some of the beneficiaries of the estate of the deceased. 6. The Respondents submitted that in fact the Appellant and his sons were receiving a large share of the estate of the deceased. The respondents herein agree with the mode of distribution of the trial magistrate, while distributing parcel 727 which is the subject of dispute in this appeal the trial magistrate having gathered from the evidence before the court that the 1st Respondent and phoebe Atieno had their homesteads situate on the said parcel it was only proper that the trial magistrate issued directions as per the information on the ground. 1. The respondents proposed that the most equitable mode of distribution would be one that ensures all beneficiaries share in both the residential and agricultural portions of the property and in conclusion, submitted that the trial court’s decision in distribution of the estate was well justified with guiding legal principles and evidence presented to the court, as such the same should not be interfered with and as such pray that this court upholds the decision of the trial court and find the appeal unmerited. # ISSUES FOR DETERMINATION 1. Having considered the Memorandum of Appeal, the record of appeal, the evidence tendered before the trial court, and the submissions by the parties, the following issues arise for determination:- 1. Whether the trial court properly identified and ascertained the beneficiaries entitled to inherit the estate of the deceased. 2. Whether the trial court erred in law and fact in its mode of distribution of the estate, particularly parcel Kisumu/Kolunje/727. 3. Whether the estate of the deceased ought to be distributed equally among all the beneficiaries in accordance with the Law of Succession Act. # ANALYSIS OF THE ISSUES FOR DETERMINATION ## Whether the trial court properly identified and ascertained the beneficiaries entitled to inherit the estate of the deceased 1. It is not disputed that the deceased, Nyolo Ragwel, died intestate and was survived by children from two houses. It is further not disputed that some of the deceased's children had predeceased him, namely John Ocholla and George Anam, leaving behind spouses and children. 2. The trial court was therefore under a duty to identify all the lawful beneficiaries before distributing the estate. The record shows that the surviving children of the deceased were Zedekiah Nyolo Awandu, Helida Opondo, Mary Adhiambo and Pamela Juma Kiyier, while the deceased sons John Ocholla and George Anam were represented by their respective families. 3. **Section 29 of the Law of Succession Act** provides in part: ***"****For the purposes of this part, 'dependant' means-* * 1. *the wife or wives, or former wife or wives, and the children of the deceased whether or not maintained by the deceased immediately prior to his death."* 1. The effect of the above provision, when read together with the scheme of Part V of the Law of Succession Act, is that where a child of the deceased dies before distribution of the estate, his or her children step into that child's position and inherit the share that would have devolved upon their parent. The law recognizes the grandchildren through their deceased parent and not to the exclusion of the other beneficiaries. 2. The evidence before the court showed that the Appellant had included the children of his deceased brothers in the succession proceedings. The court finds that this was consistent with the law and with the principle of representation recognized under succession law. 3. The court further notes that while the 1st Respondent and Phoebe Atieno are daughters-in-law of the deceased, their claim to the estate arises through the houses of their deceased husbands. Their participation in the proceedings does not extinguish the entitlement of the grandchildren who represent the deceased sons. 4. Accordingly, this court finds that the beneficiaries of the estate comprise the surviving children of the deceased together with the children of the deceased sons who predeceased distribution. ## Whether the trial court erred in law and fact in its mode of **distribution of the estate, particularly parcel Kisumu/Kolunje/727** 1. The trial court distributed parcels Kisumu/Kolunje/1468 and Kisumu/Kolunje/117 equally among all beneficiaries. However, with respect to Kisumu/Kolunje/727, the court ordered that the same be occupied by the 1st Respondent and Phoebe Atieno because their homesteads were situated thereon. 2. While occupation of land is a relevant consideration in determining the practical implementation of distribution, occupation alone cannot be the basis for excluding other beneficiaries from their lawful inheritance. 3. The record does not demonstrate that parcel Kisumu/Kolunje/727 belonged exclusively to the houses of George Anam and John Ocholla, nor does it show that the other beneficiaries had renounced their interests therein. By directing that the parcel be occupied by only two households, the trial court effectively conferred a greater benefit upon those households than upon the rest of the beneficiaries without any legal basis. 4. The court agrees with the Appellant that the distribution adopted by the trial court created inequality among beneficiaries. The law does not permit one parcel of the estate to be removed from equal distribution merely because some beneficiaries have established homesteads thereon. 5. Where occupation exists, the court may take it into account during subdivision and implementation of the grant, but such occupation cannot override the statutory rights of the other beneficiaries to share in the estate. 6. This court therefore finds that the trial court fell into error by adopting a mode of distribution for parcel Kisumu/Kolunje/727 that was inconsistent with the principles governing intestate succession. ## Whether the estate ought to be distributed equally among all the beneficiaries 1. Section 38 of the Law of Succession Act provides:- *"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 shall be equally divided among the surviving children."* The operative words are "shall be equally divided among the surviving children." The provision is mandatory and leaves little room for unequal distribution unless circumstances provided for under the Act exist. 1. The court is persuaded by the holding in **Re Estate of John Musambayi Katumanga (Deceased) [2014] eKLR**, where the court stated:- *"The spirit of Part V, especially Sections 35, 38 and 40, is equal distribution, of the intestate estate amongst the children of the deceased. There have been debates on whether the distribution should be equal or equitable. My reading of these provisions is that they envisage equal distribution for the word used in Sections 35(5) and 38 is 'equally' as opposed to 'equitably'. This is the plain language of the provisions. The provisions are in mandatory terms – the property 'shall' be equally divided among the surviving children. Equal distribution is envisaged regardless of the ages, gender and financial status of the children."* 1. The court further adopts the reasoning in the same decision that: *"There is no place in the Law of Succession to support the notion that the deceased's two married daughters should inherit lesser land from the estate. This goes entirely against the letter and spirit of Section 38 of the Law of Succession Act."* 1. The evidence before the trial court established that the deceased's daughters, namely Pamela Juma Kiyier, Helida Opondo and Mary Adhiambo, were beneficiaries of the estate. There was therefore no legal basis for any distribution that diminished their entitlement. 2. Similarly, the grandchildren representing the estates of the deceased sons are entitled to the shares that would have devolved upon their respective parents. Consequently, the estate ought to be distributed equally among the children of the deceased, with the shares of the deceased sons devolving to their respective children by representation. 3. This court therefore finds that the trial court departed from the mandatory provisions of Section 38 when it treated parcel Kisumu/Kolunje/727 differently from the rest of the estate and thereby created unequal shares among the beneficiaries. # DISPOSITION 1. Having considered all the evidence on record and the relevant laws, this court finds as follows; 2. The Appeal is hereby allowed. 3. The judgment and decree of the trial court on the mode of distribution of the estate are hereby set aside. 4. The court hereby substitutes the trial court's mode of distribution with an order that the entire net intestate estate comprising **Kisumu/Kolunje/1468, Kisumu/Kolunje/727, and Kisumu/Kolunje/117** shall be shared equally among all the beneficiaries of the estate. 1. Each party shall bear their own costs of the appeal and the proceedings before the trial court. It is so ordered. **Dated and Delivered this 30th July 2026** SIGNED BY/FOR: **□ TH E JUDICIAR Y O F KENY A ★** **HON. JUSTICE ABDI M. HASSAN** Kisumu High Court High Court Family Date: 2026-08-01 22:04:55