In re the Estate of Chepkwony Arap Ngetich (Deceased) [2015] KEHC 3687 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT AT KERICHO

SUCCESSION CASE NO. 168 OF 2007

ESTATE OF CHEPKWONY ARAP NGETICH ---DECEASED

AND

EMILY CHERONO----------------------------------------------1ST PETITIONER

RUTH CHEPKEMEI NGETICH ------------------------ 2ND PETITIONER

RULING.

This Succession Cause relates to the estate of the late CHEPKWONY ARAP NGETICHwho died on 12th July 2005.

He died intestate.

The deceased was polygamous and had two wives, namely:

1st House – Ruth Chepkemei Ngetich.

2nd House – Ludiah Chepkorir Ngetich (now deceased) and substituted by Emily Cherono.

Letters of grant of administration were issued jointly to the two widows on 3rd February 2014.  Following the death of Ludia Chepkorir Ngetich her daughter Emily Cherono was on 10th December 2014 substituted in her place.

Both administrators filed summons for confirmation of grant.  Each proposed their preferred mode of distribution.

Ruth C. Ngetich for the 1st house, proposed that the two parcels of land be shared among all the beneficiaries equally.

Emily Cherono for the 2nd house, proposed that the two parcels be shared out equally among the two houses.

Mr. Miruka for the 1st Petitioner submitted that since the deceased was polygamous and died intestate his estate should be shared out equally between the two houses.

Both counsels filed submissions in support of the different modes of distribution.  Mr. Migiro for the 2nd Petitioner relied on Section 40 of the Law of Succession Act and Eldoret High Court Succession Cause No. 243 of 2008 in support of the 1st petitioner's preferred mode of distribution.

The undisputed facts are as follows:

(i) The deceased died intestate.

(ii) He was polygamous & had two wives.

(iii) The 2nd wife Ludia is now deceased.

(iv) The two assets forming the estate are:-

(a)  L.R. NO. KERICHO/KAPLELARTET/199 (10. 2 Hectares)

(b)  L.R. NO. KERICHO/KAPLELARTET/203 (2. 8 Hectares)

The beneficiaries in the 1st House are:

Ruth Chepkemei Ngetich      - Widow

Samwel Yegon                       -        Son

Daniel Yegon                                   -        Son

Julius Yegon                                    -        Son

Philiph Yegon                                 -        Son

Isaack yegon                                   -        Son

David Yegon                                    -        Son

Vincent Yegon                        -        Son

Christina Chemutai              -        Daughter

Geoffry Yegon                        -        Son

Alice Chepkorir           -        Daughter

Mary Cheptanui          -        Daughter

The beneficiaries in the 2nd House are:

Ludiah Chepkorir Ngetich   -        Widow (Deceased)

Jacob Yegon                                    -        Son

Josephat Yegon                     -        Son

Emily Cherono                      -        Daughter

Risper  Chepkemoi                          -        Daughter

Weldon Yegon                                  -        Son

The only disputed issue is the distribution.  Section 40 (1) of the Law of Succession 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”.

According to this Provision the distribution is in the first instance done among the houses according to the number of Children in each house. If there is a surviving widow she is added as an additional unit to the number of Children.

In this case the 1st house which is the house of Ruth Chepkemei Ngetichhas 11 Children plus a surviving widow = 12 Units.

On the other hand the 2nd house which is the house of Ludiah Chepkorir Ngetichhas 5 Children with no surviving widow = 5 units.The total number of units is therefore 17 (Seventeen).

The Law of this land recognizes all Children irrespective of gender and/or sex to be equal.

The parties herein were unable to agree on an amicable mode of distribution. Section 40 of the Law of Succession Act shall therefore be applied in the instant case. The larger house will get a larger share.

It therefore follows that each of the two parcels of land shall be divided into Seventeen (17) equal portions so that none says he/she was given a lesser share.

For avoidance of doubt the mode of distribution shall be as follows:-

L.R. NO. KERICHO/KAPLELARTET/199 (10. 2Ha)to be subdivided into Seventeen (17) equal portions, one for each beneficiary as shown in Paragraph 5 (v).

L.R. NO. KERICHO/KAPLELARTET/203 (2. 8Ha)to be subdivided into Seventeen (17) equal portions, one for each beneficiary as shown in Paragraph 5(v).

Since the parties are of one family I will not award costs to any of them.  Each to bear her own costs.

Dated, Signed and delivered in open Court this 17th day of July 2015.

Orders accordingly.

Right of Appeal explained.

H.I ONG'UDI

JUDGE.