Rebecca C Atondongole v Geoffrey Lotam Atodongole & others [2016] KEHC 717 (KLR)

REPUBLIC OF KENYA

IN THE  HIGH COURT OF KENYA AT KITALE

SUCCESSION CAUSE NO. 271 OF 2006

IN THE MATTER OF THE ESTATE OF ATODONGOLE LONROTONG LOTAM

(DECEASED)

REBECCA C. ATONDONGOLE........................................................APPLICANT

VERSUS

GEOFFREY LOTAM ATODONGOLE  AND OTHERS...............RESPONDENTS

JUDGEMENT

The deceased died intestate. He left behind the following children

1. Geoffrey Atodongole

2. Samuel Atodongole

3. Joseph Atodongole

4. Edward  Porit Atodongole

5. Rebecca Atodongole

6. Monica Atodongole

7. Mary Atodongole

8. Hellen Chelagat  Reuben

9. Rosa Atodongole Senteya

10. Elizabeth Chepochukok Ptiony

11. Tereza Chepchukok Lokomo

12. Susan Lotam

13. Selina Chemutai Lotam

The administrators of the said estate are Geoffrey Atodongole  and Rebbecca Atodongole.  The deceased left behind land parcel No West Pokot/Siyoi/878 measuring 13 Hactares.  The  parties did not agree on the mode of distribution.  Each one of them  thereafter were instructed to file separate mode of distribution.

Its also instructive to note that the beneficiaries are all children of the deceased. None of them is a widow. It is also not indicated whether they are from separate houses. I shall  therefore proceed under the  premise that they are of one unit.  They are all sisters and brothers. There are generally two camps, that which is  led by the 1st administrator  Geoffrey and the second camp by Rebecca. Each of them have proposed separate mode of distribution.

Geoffrey has proposed that he inherits 2 acres, the  three brothers do  inherit 5 ½ acres each while all the nine sisters to inherit 1 ½ acres each.

This proposal according to him was agreed by 10 members of the family out of three.  According to him the same is equitable in the circumstances and shall forster peace within the family.  Special reliance in their submissions was on the   now famous case of Mary Rono Vs Jane Rono and  Walter Rono Civil App. No 66 (2002).

On its part Rebecca and her camp have proposed that since there was no agreement the entire estate ought be shared equally. She argued that the provisions of Section 38 of the Law of Succession  Act does not discriminate  on the gender and that all the beneficiaries have equal rights.  She   relied on the case of John Ngugi Karanja Vs SAMUEL Njau Karanja (2016) eKLRwhere Matiro J expanded  on the question of equality and equity.

It is worthy to note also that earlier own the parties had filed separate mode of distribution of the estate but were not able to agree. Infact the girls  namely Hellen, Rosa, Elizabeth, Teresa, Susan and Saline had agreed to take up  1 acre each.

Since the parties disagreed it is therefore for this court to distribute the land in question.

This  court is alive to the provisions of Article 27 of the current constitution which bars discrimination particularly on sex, marital status or social status  inter alia.

Equally the provision of Section  38 of the Law of Succession ct which provides as follows:-

Section 38  “ where an intestate has left a surviving child  or children but no spouse, the net intestate estate shall, subject to the provisions of Section 41 and 42, devolve upon the surviving child, If there be only one, or be equally divided among the surviving children.”

My understanding of the above provisions is that at no time should a beneficiary of an estate be left out or be discriminated against. Each ought to at least get a share from the deceased estate whether  male or female. This court is also aware of the  dynamics in the society, namely that not all estates are endowed. Neither are all estates equal. in other words, one cannot be  mathematically precise in the quest for  distribution of the estate.  In as much as section 38 of the Act anticipated equality, I do not think that there can be total equality.

This is so because not all the beneficiaries can be equal. Some could be   young and still in a dire need of resources where  as others may have already been provided by the deceased during his/her lifetime.  In  distributing the estate therefore I hold an humble view that each estate ought to be treated as separate and distinct with special regard to holding the virtues , tenets and the spirit  of the constitution so as to ensure that there is no discrimination.

The decision  of Omolo JA (as he then was) in Rono Vs Rono (Supra)ought to be  reproduced.  The learned Judge stated  as follows in regard to Section 40(1) of the succession Act.

“My understanding of that Section is that while the  net intestate is  to be distributed according to houses, each house being treated as a unit, yet the Judge during the distribution still has a discretion to take into account  or consideration the number of children in each house. If parliament had intended that there must be  equality between houses, there would have been no need to provide in the Section that   the number of children in each  house be taken into account.

Now do I see any provision in the Act that each child must receive the same or equal portion.

That would clearly work an injustice particularly in case of a young child who is still to be maintained, educated, and generally seen  through life.  If such a child, whether a girl or a boy, were to get an equal inheritance with  another who is already working and  for whom no school fees and things like that were to be provided, such equality would work an injustice and for my part, I am satisfied that the Act does not provide for that kind of equity.”

In the case at hand although Rebecca proposes that the estate be  shared equally, I do not think that the same would be provident. Several of her sisters had already agreed to take one acre each. I take this to mean that where they are married or in their current stations they are  happy. In other words to forster family peace and unity, they have agreed to inherit  an acre each.

Geoffrey  in particular has agreed to  take up  2 acres. Again this  must be informed from his own perspective. I do not see any  reason why this court should deny him such.

The issue  that ought to be interrogated is the  entitlement of Rebecca, Monica and Mary.  From their earlier proposal the  rest of the brothers were to get 5 acres each whereas  in the other proposal they opine that they each get 7 acres.

Whereas there are suggestions that the  three ladies Rebecca, Monica and Mary had been married and they were now at  home and that they could still  inherit from where they were married, this argument was not contested by them. Although this argument appears discriminatory, the court is well alive to such prevailing circumstances.  However reasonable provisions ought to be provided for them. Since they have not disputed that they can still inherit from where they were married it would not be fair in the circumstances  for them to get equal shares from their three brothers who for all intent and purposes know the suit land as their only inheritance.

As earlier alluded and taking into totality the circumstances in this case which can be distinguished from the authorities provided by the counsels on record, namely, that it relates to the children and not houses I shall proceed to distribute  the suit land as hereunder:

1. Geoffrey Atodongole                    - 2 acres

2. Rosaline C. Atodongole                - 1 acre

3. Elizabeth Chepochukok  Ptiony   - 1 acre

4. Susan Atodongole    Lotam          - 1 acre

5. Hellen Chelagat  Rueben             - 1 acre

6. Selly C. Poghisyo                         - 1 acre

7. Teresa Lokomoi                          - 1 acre

8. Rebecca Atodongole                   - 3 acres

9. Monica Atodongole                    - 3 acres

10. Mary Aripe Atodongole            - 3 acres

11. Samuel Atodongole                 - 5 Acres

12. Joseph Atodongole                  - 5 Acres

13. Edward Lotam                        - 5 acres

Total                                        - 32 acres

Since this is a family feud, each party  shall bear their respective costs.

Delivered this 5th day of December  2016.

________________

H. K. CHEMITEI

JUDGE

In the presence of

Kiarie for the Petitioner/Respondent

No appearance for Waweru

Kirong – Court Assistant