In re Estate of Odinga Ogak(Deceased) [2022] KEHC 3054 (KLR)

In re Estate of Odinga Ogak(Deceased) (Probate & Administration 131 of 2016) [2022] KEHC 3054 (KLR) (14 June 2022) (Ruling)

Neutral citation: [2022] KEHC 3054 (KLR)

Republic of Kenya

In the High Court at Homa Bay

Probate & Administration 131 of 2016

KW Kiarie, J

June 14, 2022

IN THE MATTER OF THE ESTATE OF ODINGA OGAK(DECEASED)

Between

Charles Alingo Odinga

Petitioner

and

Cornelia Adhiambo Odinga

1st Respondent

Tobias Omondi Odinga

2nd Respondent

and

Francis Odak Ng’Ong’A

Interested Party

Angelina Ochola

Interested Party

Ruling

1. Charles Alingo Odinga, the petitioner/applicant herein, moved the court by way of chamber summons and is seeking the following orders:a)The Honorable Court be pleased to review the order made on the 4th day of July, 2019 and the subsequent Certificate of Confirmation to include the names of the interested parties above named as beneficiaries to the estate of Odinga Odak.b)The costs of this application be paid out of the estate of the deceased.

2. The application was premised on the following grounds:a)Odinga Odak, Erastus Ng’ong’a and Thomas Ochola, all now deceased, are blood brothers who all resided on the suit Land Parcel number South Sakwa/Alego/33 registered in the name of Odinga Odak as sole proprietor.b)The interested parties are the son and wife of the above named deceased brothers of Odinga Odak whose homesteads are on the above suit land but were inadvertently left out when the schedule of distribution was presented to court.c)The interested parties are actual beneficiaries of the above estate and should be accordingly included

3. The application was partially conceded by the respondent who said that the provisions of section 40 of the Law of Succession Act were not complied with.

4. Odinga Odak was polygamous. His estate is governed by section 40 of the Law of Succession Act which provides:(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 order of 4th July, 2019 is hereby reviewed to include any beneficiary who may have been left out and the distribution to comply with the provisions of section 40 of the Law of Succession Act.

6. I therefore allow the application dated 8th October, 2021. Each party to bear own costs.

DELIVERED AND SIGNED AT HOMA BAY THIS 14TH DAY OF JUNE, 2022KIARIE WAWERU KIARIEJUDGE