1. This ruling is in respect of the summons for confirmation of grant dated 27th August, 2025 seeks the following orders:
a. THAT Gilbert Otieno Oluoch, Yvette Anita Oluoch and Irene Awuor Odhiambo – the appointed Administrators over the estate of Hesbon Francis Otieno Oluoch (Deceased) pursuant to an order of this Honourable Court dated 28th July, 2021, be confirmed and the estate be divided in terms of the annexed proposed mode of distribution.
b. THAT the costs of this application be in the cause.
2. The application is supported by the affidavit of Gilbert Otieno Oluoch sworn on 27th August, 2025 in which he deposes that he is the first-born son of the late Dr. Hesbon Francis Otieno Oluoch (the Deceased) and the son of the Deceased’s late wife, Norah Akoth Omollo Oluoch, and is therefore conversant with the facts relating to the estate.
3. He states that he is one of the Administrators of the Deceased’s estate pursuant to the Grant of Letters of Administration Intestate issued by this Court on 5th May, 2016 and amended on 28th July, 2021.
4. The deponent deposes that his parents solemnized their marriage on 15th December, 1996 at St. Peters ACK Church, Bonde, and lived together as husband and wife until his mother’s death on 8th October, 2003. Their union was blessed with two sons, namely, the deponent Gilbert Otieno Oluoch and Henry Angula Oluoch.
5. He further states that several years after his mother’s death, Irene Awuor Odhiambo, the 1st Administrator, cohabited with the Deceased until his death on 31st July, 2014, and that their union was blessed with one child, Noel Okoth Oluoch.
6. The deponent further states that, during the proceedings, Yvette Anita Oluoch, the 3rd Administrator, produced a birth certificate purporting to establish that the Deceased was her father. Although he states that he is not in a position to comment on the said birth certificate, he does not object to Yvette Anita Oluoch being recognized as a beneficiary of the Deceased’s estate.
7. He consequently identifies the persons who survived the Deceased as himself Gilbert Otieno Oluoch, Henry Angula Oluoch, Irene Awuor Odhiambo, Noel Okoth Oluoch and Yvette Anita Oluoch, being, respectively, sons, widow and daughter of the Deceased.
8. With regard to the issue of Christine Akinyi Otieno, the Deponent states that, during court-mandated mediation, a question arose as to whether she, being the mother of Yvette Anita Oluoch, was herself a beneficiary of the Deceased’s estate. He contends that the question is justiciable only before this Court and was therefore incapable of resolution through mediation.
9. The deponent states that, at the time Yvette Anita Oluoch was born, his mother was still alive and that there is no evidence that the Deceased and Christine Akinyi Otieno married, cohabited or otherwise solemnized their union.
10. He further states that Christine Akinyi Otieno was not recognized as the Deceased’s spouse during his funeral, nor was Yvette Anita Oluoch then recognized as his child. He accordingly maintains that Christine Akinyi Otieno was never the Deceased’s wife and that no evidence to the contrary has been presented.
11. The deponent states that, at the time of his death, the Deceased owned the following assets, which constitute part of his estate: Title No. Kisumu/Kanyadwera/671, acquired on 9th April, 2010; Title No. Kisumu/Kanyadwera/672, acquired on 25th May, 2010; Title No. Kisumu/Kombewa/4259, acquired on 22nd November, 1996; Title No. East Seme/Kombewa/4260, acquired on 7th May, 1997; Title No. Manyatta A 361, (formerly unsurveyed residential Plot No. 361 Migosi S and S Scheme, Kisumu), acquired on 28th July, 2003; Title No. Manyatta A 362, (formerly unsurveyed residential Plot No. 362 Migosi S and S Scheme, Kisumu), acquired on 14th April, 2003; Plot No. L.R. Kisumu 15026/40, acquired on 2nd July, 2003; Title No. Kisumu/Kasule No. 3490, acquired on 8th April, 1997; and 8,589 KCB shares.
12. The deponent further states that there is no pending application for provision for dependants before the Court.
13. The deponent contends that the beneficiaries have been unable to agree on the distribution of the estate. He proposes that Kisumu/Kanyadwera/671 be distributed equally between Irene Awuor Odhiambo and Noel Okoth Oluoch; Kisumu/Kanyadwera/672 be distributed solely to Yvette Anita Oluoch; Kisumu/Kombewa/4259 be distributed equally between Irene Awuor Odhiambo and Noel Okoth Oluoch; East Seme/Kombewa/4260, Kisumu/Manyatta ‘A’/361, Kisumu/Manyatta ‘A’/362 and L.R. Kisumu 15026/40 each be distributed equally between Gilbert Otieno Oluoch and Henry Angula Oluoch; Kisumu/Kasule No. 3490 be distributed equally between Irene Awuor Odhiambo and Noel Okoth Oluoch; and the 8,589 KCB shares be distributed equally among Gilbert Otieno Oluoch, Henry Angula Oluoch and Yvette Anita Oluoch.
14. As the basis for the proposed mode of distribution, the deponent states that his late mother, Norah Akoth Omollo Oluoch, was a career woman employed by the Postal Corporation of Kenya and assisted the Deceased in the purchase and development of the properties forming part of the estate, particularly those acquired before her death.
15. He specifically identifies Kisumu/Manyatta ‘A’/361 and Kisumu/Manyatta ‘A’/362 as properties which were purchased and developed with the assistance of his late mother and which constituted the matrimonial home of his parents where he and his brother grew up. He states that the two properties were subsequently sold by the 1st Administrator, allegedly unlawfully, and that they consequently have particular sentimental value to him and his brother.
16. The deponent further alleges that, before confirmation of the Grant issued on 5th May, 2016, the 1st Administrator illegally sold properties forming part of the Deceased’s estate and solely benefited from the proceeds thereof, to the prejudice of the other beneficiaries.
17. He states that the properties known as Kisumu/Kanyadwera/654 and Kisumu/Kanyadwera/769, which have already been sold, may therefore be allocated to the 1st Administrator, on the basis that she has already benefited from the proceeds of those properties and has not accounted for or restored the proceeds to the estate for purposes of distribution.
18. The deponent maintains that no beneficiary will be prejudiced if the application is allowed as prayed. He further states that no estate duty is payable in respect of the Deceased’s estate.
19. The application is opposed by Yvette Anita Oluoch, an Administrator of the estate of the Deceased, who states that she objects to the proposed mode of distribution contained in the supporting affidavit to the application dated 27th August, 2025. She deposes that she was neither consulted nor did she consent to the mode of distribution proposed by Gilbert Otieno Oluoch.
20. The deponent states that she has been residing with her mother at Kisumu/Kasule/3490 since 8th July, 1996, which property, she asserts, was jointly purchased by her parents.
21. She maintains that the property has, over time, been developed and improved by her mother and that it would therefore be unfair for it to be allocated to another beneficiary. She consequently proposes that Kisumu/Kasule/3490 be allocated to her, citing her long-standing occupation and contribution towards its development.
22. In contrast, the deponent objects to the proposed allocation to her of Kisumu/Kanyadwera/672, which she describes as an ancestral home. She states that, as a daughter, allocation of the property to her may expose her to confrontation with her stepmother and contends that the property ought instead to be allocated to the sons, on the basis that a daughter may subsequently marry and establish her home elsewhere.
23. The Deponent further alleges that the Deceased’s death gratuity of Ksh.3,900,000/-, which was intended to be shared among the beneficiaries, was used, wasted and squandered by Gilbert Otieno Oluoch and Irene Awuor Odhiambo before the Grant was annulled.
24. She consequently contends that the proposed mode of distribution is unfair and biased and favours some beneficiaries to the detriment of others and contrary to the law.
25. With respect to the 8,589 KCB shares, the deponent proposes that they be distributed equally among all the beneficiaries of the estate. She further states that the properties known as Kisumu/Kanyadwera/654 and Kisumu/Kanyadwera/769, which were sold by the 1st Administrator, should form part of the 1st Administrator’s share, and that she should relinquish the other portions of the estate proposed to be allocated to her.
26. The deponent states that she stands to suffer irreparable loss and prejudice if she is deprived of her current place of abode at Kisumu/Kasule/3490, where she has resided for approximately 20 years.
27. She concludes by contending that the proposed mode of distribution demonstrates that Gilbert Otieno Oluoch and Henry Angula Oluoch have apportioned to themselves a major portion of the estate, thereby disadvantaging the other beneficiaries.
28. The date on which the replying affidavit was sworn is not clear from the copy placed before the Court.
29. Yvette Anita Oluoch filed another affidavit, whose date of oath is also not clear, in which she proposes that the summons for confirmation of grant be considered in light of her objections to the proposed mode of distribution.
30. The deponent states that Kisumu/Kasule/3490, which the Applicant proposes to distribute to Irene Awuor Odhiambo and Noel Okoth Oluoch jointly, is the subject of an application dated 8th March, 2024 filed by Christine Akinyi Otieno, which is still pending determination before this Court.
31. She therefore contends that the summons for confirmation of grant has been brought prematurely since the pending application concerns, among other matters, the distribution of properties forming part of the estate.
32. With regard to Kisumu/Kanyadwera/672, the deponent reiterates that she does not wish to have the property allocated to her. She describes it as ancestral land situated in their village and close to the family’s ancestral home and proposes that it be inherited by her two elder brothers, Gilbert Otieno Oluoch and Henry Angula Oluoch, whom she considers to have an advantage as male beneficiaries over a daughter.
33. The Deponent further states that the Applicant failed to disclose the full inventory of the Deceased’s estate, including Afya Sacco savings/shares, which she states were omitted because the other four beneficiaries had already benefited from them.
34. She also alleges that the Applicant failed to disclose the payment of the Deceased’s death gratuity of Ksh.3,900,000/-, which was released through the Public Trustee and distributed as follows: Ksh.200,000/- to herself, Yvette Anita Oluoch, while Ksh.3,700,000/- was shared among Gilbert Otieno Oluoch, Henry Angula Oluoch, Irene Awuor Odhiambo and Noel Okoth Oluoch.
35. The deponent further states that, apart from the death gratuity, funds from the Deceased’s National Hospital Insurance Fund (NHIF) and National Social Security Fund (NSSF) were also paid and shared by Gilbert Otieno Oluoch, Henry Angula Oluoch, Irene Awuor Odhiambo and Noel Okoth Oluoch.
36. She adds that the same four beneficiaries were the sole beneficiaries of the widow/children’s pension fund, notwithstanding that she was a minor at the time of the Deceased’s death and, in her view, ought to have benefited from the fund as well.
37. On account of what she describes as these previous benefits received by the other four beneficiaries following the Deceased’s death, the deponent proposes that the Court take those gains into consideration when distributing the estate and compensate her accordingly.
38. She specifically proposes that L.R. Kisumu/15026/40 and the 8,589 KCB shares be allocated to her, while the remaining properties be shared among the other four beneficiaries. She concludes by urging the Court to adopt a mode of distribution that is fair and considerate of all the beneficiaries.
39. Christine Akinyi Otieno filed an affidavit in protest of the proposed distribution which she swore on 6th October, 2025, in which she contends that the application for confirmation is defective for failure to disclose that her application dated 8th March, 2024 remains pending determination before this Court.
40. She states that she cohabited with the Deceased during which period Yvette Anita Oluoch, the 3rd Administrator, was born, and that she and the Deceased jointly acquired Kisumu/Kasule/3490, as evidenced by the documents annexed to her affidavit in support of the pending application.
41. She further deposes that, following the filing of her application, none of the parties filed an affidavit in response to it or raised any objection. She therefore takes issue with the Applicant’s inclusion of Kisumu/Kasule/3490 in the proposed mode of distribution, contending that the Applicant had not responded to her claim to the property.
42. The Deponent states that when her application came up for hearing, the Court directed that the issue be dealt with at the time of distribution. She consequently prays that the Court recognizes Kisumu/Kasule/3490 as belonging to her, on the basis of the affidavit and exhibits filed in support of her pending application, and excludes the property from distribution among the other beneficiaries.
43. She further prays that her application dated 8th March, 2024 be allowed and that appropriate orders issue to enable her transfer the property into her name.
44. The Applicant, who is the 2nd Administrator, submits that the Deceased, Dr. Hesbon Francis Otieno Oluoch, married the late Norah Akoth Omollo Oluoch on 15th December, 1996 and that their union was blessed with two sons, Gilbert Otieno Oluoch and Henry Angula Oluoch.
45. Following her death on 8th October, 2003, the Deceased cohabited with the 1st Administrator, Irene Awuor Odhiambo, until his death on 31st July, 2014, and their union was blessed with Noel Okoth Oluoch. The Applicant states that he and the 1st Administrator jointly petitioned for the Grant of Letters of Administration Intestate, which was issued on 5th May, 2016, but that the 1st Administrator subsequently intermeddled with the estate and caused seven parcels of land belonging to the Deceased to be fraudulently sold.
46. He states that he and Henry Angula Oluoch thereafter moved the Court for orders to reverse the transactions, hold the 1st Administrator accountable and revoke the Grant issued to her, resulting in orders dated 5th November, 2021 and 7th April, 2025 directing reversion of the properties to the name of the Deceased for purposes of distribution.
47. The Applicant submits that, during the proceedings, Yvette Anita Oluoch emerged as the 3rd Administrator and produced a birth certificate purporting to establish that the Deceased was her father.
48. He states that the 1st Administrator has not responded to the summons for confirmation, while the 3rd Administrator opposes the proposed mode of distribution principally on account of the pending claim by Christine Akinyi Otieno over Kisumu/Kasule/3490, her occupation of that property, her objection to receiving Kisumu/Kanyadwera/672, alleged exclusion from the Deceased’s death gratuity and other funds, and her position concerning the 8,589 KCB shares.
49. The Applicant also addresses the protest by Christine Akinyi Otieno, who claims that she jointly acquired Kisumu/Kasule/3490 with the Deceased and that the property ought therefore to be transferred to her rather than distributed as part of the estate.
50. On the first issue, the Applicant submits that he has no objection to Kisumu/Kasule/3490 being allocated to Yvette Anita Oluoch. He proposes that East Seme/Kombewa/4260, Kisumu/Manyatta ‘A’/361, Kisumu/Manyatta ‘A’/362 and L.R. Kisumu 15026/40 be allocated equally to himself and Henry Angula Oluoch. His reasons are that the properties were acquired during the subsistence of the marriage between the Deceased and his late mother, Norah Akoth Omollo Oluoch, and that she, being a career woman employed by the Postal Corporation of Kenya, assisted the Deceased in their acquisition and development.
51. He particularly identifies the Manyatta properties as having been purchased and developed with his late mother’s assistance and as having constituted the matrimonial home in which he and Henry Angula Oluoch grew up before the properties were allegedly sold by the 1st Administrator.
52. In support of the submission that sentimental value may properly be considered in distributing an estate, the Applicant relies on In the Matter of the Estate of the Late Bedan Wambu Ngarama (Deceased) [2014] eKLR, in which the Court observed that a matrimonial home has not only fiscal value but also great sentimental value to a surviving spouse and children of the deceased.
53. He further relies on In re Estate of Josephat Mwaniki Gitau (Deceased) [2017] KEHC 3369 (KLR), which he submits restated the same position.
54. The Applicant further submits that the 1st Administrator previously sold properties forming part of the estate and retained the proceeds, thereby obtaining an advantage over the other beneficiaries. He therefore proposes that the properties known as Kisumu/Kanyadwera/654 and Kisumu/Kanyadwera/769, which he states have not reverted to the estate, be treated as forming part of the 1st Administrator’s share.
55. As regards the 8,589 KCB shares, the Applicant disputes the 3rd Administrator’s claim to the shares. Although the 3rd Administrator had proposed in her affidavit that the shares be distributed equally among the beneficiaries, the Applicant states that she subsequently sought the entire shareholding. He proposes instead that the shares be allocated equally to himself and Henry Angula Oluoch to assist in meeting the legal costs incurred in the succession proceedings.
56. He submits that he has been the Administrator who has diligently prosecuted the matter, including pursuing the reversion of properties allegedly unlawfully disposed of by the 1st Administrator and contempt proceedings against the Chief Land Registrar, while the other Administrators allegedly remained largely inactive.
57. The Applicant accordingly proposes that Kisumu/Kanyadwera/671 be allocated equally to Irene Awuor Odhiambo and Noel Okoth Oluoch; Kisumu/Kanyadwera/672 be allocated to Irene Awuor Odhiambo and Noel Okoth Oluoch jointly; Kisumu/Kombewa/4259 be allocated to Yvette Anita Oluoch; East Seme/Kombewa/4260, Kisumu/Manyatta ‘A’/361, Kisumu/Manyatta ‘A’/362 and L.R. Kisumu 15026/40 be allocated equally to Gilbert Otieno Oluoch and Henry Angula Oluoch; Kisumu/Kasule/3490 be allocated solely to Yvette Anita Oluoch; and the 8,589 KCB shares be allocated equally to Gilbert Otieno Oluoch and Henry Angula Oluoch.
58. On the question whether the Deceased’s Afya Sacco savings, death gratuity, NHIF benefits, NSSF benefits and widow/children’s pension form part of the free estate, the Applicant submits that such benefits are governed by the respective statutory regimes and applicable nomination arrangements and do not ordinarily form part of the estate available for distribution under the law of intestate succession.
59. He relies on Section 37(2) of the Retirement Benefits Act, which provides that retirement benefits are payable to the nominated person or, in the absence of nomination, to the legal dependants, and that such benefits do not form part of the deceased’s estate or become subject to intestate succession.
60. He also relies on Section 24(3) of the Pensions Act, which similarly provides that a public servant’s pension or gratuity is payable to the nominated person or, in the absence of nomination, the legal dependants and does not form part of the deceased’s estate.
61. The Applicant further relies on Section 31 of the Social Health Insurance Act, which provides that benefits from the Fund are to be paid directly to the nominated dependants and do not form part of the deceased’s estate, and Section 34 of the National Social Security Fund Act, which provides for payment of a death benefit to the nominated person or, in the absence of nomination, the legal dependants, and expressly excludes such benefit from the deceased member’s estate and the operation of the law of intestate succession.
62. In relation to the Afya Sacco savings and shares, he relies on Section 39 of the Co-operative Societies Act, which regulates the transfer or payment of a deceased member’s share or interest to the nominee, personal representative or another qualified person in accordance with the Act, rules and by-laws of the society.
63. The Applicant also relies on Re Estate of the Late Guya Robert Otieno (Deceased) (Succession Cause E006 of 2021) [2024] KEHC 7694 (KLR), where the High Court held, in substance, that a probate court has no jurisdiction to determine issues arising from funds held in a retirement benefits scheme where the benefits have a specially prescribed mode of distribution and internal mechanisms of redress. The Court further held that gratuity which does not form part of the deceased’s free estate should be distributed in accordance with the Retirement Benefits Act and the relevant scheme rules, with the guidance of the scheme trustees, rather than through the succession court.
64. On that basis, the Applicant submits that the 3rd Administrator is mistaken in contending that the Deceased’s death gratuity and other such benefits ought to form part of the free estate or affect the distribution thereof.
65. On the third issue, concerning Kisumu/Kasule/3490, the Applicant submits that Christine Akinyi Otieno claims ownership on the basis that she jointly acquired the property with the Deceased and is, in effect, asserting survivorship under the principle of jus accrescendi.
66. The Applicant contends, however, that the property was registered solely in the name of the Deceased and that there is no evidence of joint ownership.
67. He relies in this regard on the Court’s order of 22nd May, 2024, which he states has not been successfully challenged by way of review or appeal. The effect of the order was to revert the property back to the Deceased’s name.
68. The Applicant further submits that Christine Akinyi Otieno has neither established that she was married to or cohabited with the Deceased nor demonstrated that she contributed to the acquisition or development of Kisumu/Kasule/3490, participated in its purchase or payment of the purchase price, was registered as a proprietor thereof, or that the Deceased held the property in trust for her. He invokes Section 107 of the Evidence Act, which places the burden of proving a fact on the person who asserts its existence.
69. He specifically submits that, although Christine alleges in her application dated 8th March, 2024 that she contributed Ksh.30,000/- towards the purchase price of Ksh.80,000/- using an Afya Sacco loan, she has not produced evidence demonstrating that she was an Afya Sacco member, obtained such a loan, applied it towards the purchase of the property or otherwise acquired the property jointly with the Deceased.
70. The Applicant relies on Re Estate of Late Josephat Irungu Kanyi alias Josephat Kanyi (Deceased) [2024] KEHC 15397 (KLR), where the Court considered the absence of evidence of joint ownership and held that Section 93 of the Land Registration Act could not apply where there was no evidence that the deceased and the protestor jointly owned the property in question. The Applicant submits that the same reasoning applies to Christine Akinyi Otieno’s claim.
71. The Applicant further draws attention to this Court’s ruling of 22nd May, 2024, delivered in the presence of Christine Akinyi Otieno’s Counsel, in which the Court allowed the application dated 12th April, 2024 seeking reversion of Kisumu/Kasule/3490 and Kisumu/Kanyadwera/671 to the name of the Deceased for purposes of distribution; ordered the title to Kisumu/Kasule/3490 to revert to the Deceased and directed the Chief Land Registrar to effect the reversion; and held that Christine Akinyi Otieno’s application dated 8th March, 2024 was premature and ought to await distribution of the estate.
72. The Applicant submits that Christine did not appeal that decision and that the property consequently forms part of the estate available for distribution.
73. Finally, the Applicant submits that the probate court lacks jurisdiction to determine disputes concerning ownership of land, which he contends fall within the jurisdiction of the Environment and Land Court under Article 162(2)(b) of the Constitution. He relies on Re Estate of Joseph Kipkemoi Limo (Deceased) (Succession Cause E040 of 2021) [2025] KEHC 1623 (KLR), where the High Court held that the role of a probate court is to identify the deceased’s estate, identify the lawful beneficiaries and distribute the estate, while disputes concerning land ownership and property rights fall within the constitutional jurisdiction of the Environment and Land Court.
74. The Applicant therefore submits that this Court lacks jurisdiction to determine Christine Akinyi Otieno’s claim to ownership of Kisumu/Kasule/3490 and urges the Court to allow the summons for confirmation of grant and distribute the estate in accordance with his proposed mode of distribution.
75. In her submissions, the 3rd Administrator, Yvette Anita Oluoch states that the Deceased was married to two wives and also cohabited with Christine Akinyi Otieno, her mother. She maintains that she is the undisputed daughter of the Deceased by virtue of that union.
76. She concurs with the 2nd Administrator that the 1st Administrator intermeddled with the estate and sold several properties belonging to it.
77. She maintains her proposed mode of distribution as set out in her affidavit.
78. The 3rd Administrator submits that the estate ought not to be distributed in accordance with the proposal of the 2nd Administrator, which she contends is biased and discriminatory against her. She maintains that the Court should take into account the previous benefits received by Gilbert Otieno Oluoch, Henry Angula Oluoch, Irene Awuor Odhiambo and Noel Okoth Oluoch following the death of the Deceased, and compensate her accordingly in the distribution of the estate.
79. She further submits that the properties sold by the 1st Administrator and from which she solely benefited should, particularly where recovery is no longer possible, be treated as part of her share obtained in advance.
80. The 3rd Administrator relies on In re Estate of Simiyu Amtala alias Siniyu Amtala (Deceased), Family Appeal No. E003 of 2022 [2025] KEHC 18815 (KLR), in which, according to her, the Court held that children of a deceased person, whether born within or outside wedlock, are equally entitled to inherit from the estate.
81. She also relies on In re Estate of the Late John Kiptum Bartilol (Deceased), Succession Cause No. 17 of 2001 [2023] KEHC 22629 (KLR), where the Court held, as submitted, that failure to provide for children born out of wedlock amounts to discrimination on the ground of the marital status of their parents, and that such children are entitled to inherit irrespective of whether their mothers were married to the deceased.
82. With regard to her own proposed mode of distribution, the 3rd Administrator submits that she ought not to be allocated the ancestral property proposed by the 2nd Administrator, but should instead receive property away from the ancestral home so as to avoid future conflicts.
83. She further complains that the 2nd Administrator did not seek her consent before filing the summons for confirmation.
84. She proposes that she be allocated L.R. Kisumu/15026/40 together with the KCB shares, while the remaining properties be distributed among the other beneficiaries.
85. She also supports Christine Akinyi Otieno’s claim to Kisumu/Kasule/3490, on the basis that Christine contributed towards its purchase and had previously moved the Court in that regard.
86. On the death gratuity, Afya Sacco savings, NHIF funds, NSSF funds and the widow and children’s pension fund, the 3rd Administrator submits that all such funds ought to form part of the estate and should be accounted for before distribution.
87. She contends that the funds were disbursed while she was still a minor and that the 1st and 2nd Administrators failed to take into account her beneficial interest therein.
88. She maintains that the Constitution and the Law of Succession Act do not permit discrimination among beneficiaries and urges the Court to require the recipients of the said funds to account for them, so that her interest may be taken into consideration in the final distribution.
89. On the question of ownership of Kisumu/Kasule/3490, the 3rd Administrator submits that this Court has jurisdiction to determine the dispute and to recognize Christine Akinyi Otieno’s interest in the property. She contends that Christine occupied the property and contributed towards its purchase together with the Deceased, and that her contribution is demonstrated in the affidavit filed in support of her application.
90. It is submitted that unless the property is dealt with at this stage, Christine may be deprived of the benefit of her contribution. The Court is therefore urged to have the property bequeathed to Christine unconditionally in order to bring the dispute to an end and avoid further family conflict and litigation.
91. Finally, the 3rd Administrator submits that the estate should be distributed fairly and equitably among all the identified beneficiaries, and that each party should bear his or her own costs without burdening the estate.
92. The 1st Administrator, Irene Awuor Odhiambo, did not participate in
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a. THAT Gilbert Otieno Oluoch, Yvette Anita Oluoch and Irene Awuor Odhiambo – the appointed Administrators over the estate of Hesbon Francis Otieno Oluoch (Deceased) pursuant to an order of this Honourable Court dated 28th July, 2021, be confirmed and the estate be divided in terms of the annexed proposed mode of distribution.
b. THAT the costs of this application be in the cause.
2. The application is supported by the affidavit of Gilbert Otieno Oluoch sworn on 27th August, 2025 in which he deposes that he is the first-born son of the late Dr. Hesbon Francis Otieno Oluoch (the Deceased) and the son of the Deceased’s late wife, Norah Akoth Omollo Oluoch, and is therefore conversant with the facts relating to the estate.
3. He states that he is one of the Administrators of the Deceased’s estate pursuant to the Grant of Letters of Administration Intestate issued by this Court on 5th May, 2016 and amended on 28th July, 2021.
4. The deponent deposes that his parents solemnized their marriage on 15th December, 1996 at St. Peters ACK Church, Bonde, and lived together as husband and wife until his mother’s death on 8th October, 2003. Their union was blessed with two sons, namely, the deponent Gilbert Otieno Oluoch and Henry Angula Oluoch.
5. He further states that several years after his mother’s death, Irene Awuor Odhiambo, the 1st Administrator, cohabited with the Deceased until his death on 31st July, 2014, and that their union was blessed with one child, Noel Okoth Oluoch.
6. The deponent further states that, during the proceedings, Yvette Anita Oluoch, the 3rd Administrator, produced a birth certificate purporting to establish that the Deceased was her father. Although he states that he is not in a position to comment on the said birth certificate, he does not object to Yvette Anita Oluoch being recognized as a beneficiary of the Deceased’s estate.
7. He consequently identifies the persons who survived the Deceased as himself Gilbert Otieno Oluoch, Henry Angula Oluoch, Irene Awuor Odhiambo, Noel Okoth Oluoch and Yvette Anita Oluoch, being, respectively, sons, widow and daughter of the Deceased.
8. With regard to the issue of Christine Akinyi Otieno, the Deponent states that, during court-mandated mediation, a question arose as to whether she, being the mother of Yvette Anita Oluoch, was herself a beneficiary of the Deceased’s estate. He contends that the question is justiciable only before this Court and was therefore incapable of resolution through mediation.
9. The deponent states that, at the time Yvette Anita Oluoch was born, his mother was still alive and that there is no evidence that the Deceased and Christine Akinyi Otieno married, cohabited or otherwise solemnized their union.
10. He further states that Christine Akinyi Otieno was not recognized as the Deceased’s spouse during his funeral, nor was Yvette Anita Oluoch then recognized as his child. He accordingly maintains that Christine Akinyi Otieno was never the Deceased’s wife and that no evidence to the contrary has been presented.
11. The deponent states that, at the time of his death, the Deceased owned the following assets, which constitute part of his estate: Title No. Kisumu/Kanyadwera/671, acquired on 9th April, 2010; Title No. Kisumu/Kanyadwera/672, acquired on 25th May, 2010; Title No. Kisumu/Kombewa/4259, acquired on 22nd November, 1996; Title No. East Seme/Kombewa/4260, acquired on 7th May, 1997; Title No. Manyatta A 361, (formerly unsurveyed residential Plot No. 361 Migosi S and S Scheme, Kisumu), acquired on 28th July, 2003; Title No. Manyatta A 362, (formerly unsurveyed residential Plot No. 362 Migosi S and S Scheme, Kisumu), acquired on 14th April, 2003; Plot No. L.R. Kisumu 15026/40, acquired on 2nd July, 2003; Title No. Kisumu/Kasule No. 3490, acquired on 8th April, 1997; and 8,589 KCB shares.
12. The deponent further states that there is no pending application for provision for dependants before the Court.
13. The deponent contends that the beneficiaries have been unable to agree on the distribution of the estate. He proposes that Kisumu/Kanyadwera/671 be distributed equally between Irene Awuor Odhiambo and Noel Okoth Oluoch; Kisumu/Kanyadwera/672 be distributed solely to Yvette Anita Oluoch; Kisumu/Kombewa/4259 be distributed equally between Irene Awuor Odhiambo and Noel Okoth Oluoch; East Seme/Kombewa/4260, Kisumu/Manyatta ‘A’/361, Kisumu/Manyatta ‘A’/362 and L.R. Kisumu 15026/40 each be distributed equally between Gilbert Otieno Oluoch and Henry Angula Oluoch; Kisumu/Kasule No. 3490 be distributed equally between Irene Awuor Odhiambo and Noel Okoth Oluoch; and the 8,589 KCB shares be distributed equally among Gilbert Otieno Oluoch, Henry Angula Oluoch and Yvette Anita Oluoch.
14. As the basis for the proposed mode of distribution, the deponent states that his late mother, Norah Akoth Omollo Oluoch, was a career woman employed by the Postal Corporation of Kenya and assisted the Deceased in the purchase and development of the properties forming part of the estate, particularly those acquired before her death.
15. He specifically identifies Kisumu/Manyatta ‘A’/361 and Kisumu/Manyatta ‘A’/362 as properties which were purchased and developed with the assistance of his late mother and which constituted the matrimonial home of his parents where he and his brother grew up. He states that the two properties were subsequently sold by the 1st Administrator, allegedly unlawfully, and that they consequently have particular sentimental value to him and his brother.
16. The deponent further alleges that, before confirmation of the Grant issued on 5th May, 2016, the 1st Administrator illegally sold properties forming part of the Deceased’s estate and solely benefited from the proceeds thereof, to the prejudice of the other beneficiaries.
17. He states that the properties known as Kisumu/Kanyadwera/654 and Kisumu/Kanyadwera/769, which have already been sold, may therefore be allocated to the 1st Administrator, on the basis that she has already benefited from the proceeds of those properties and has not accounted for or restored the proceeds to the estate for purposes of distribution.
18. The deponent maintains that no beneficiary will be prejudiced if the application is allowed as prayed. He further states that no estate duty is payable in respect of the Deceased’s estate.
19. The application is opposed by Yvette Anita Oluoch, an Administrator of the estate of the Deceased, who states that she objects to the proposed mode of distribution contained in the supporting affidavit to the application dated 27th August, 2025. She deposes that she was neither consulted nor did she consent to the mode of distribution proposed by Gilbert Otieno Oluoch.
20. The deponent states that she has been residing with her mother at Kisumu/Kasule/3490 since 8th July, 1996, which property, she asserts, was jointly purchased by her parents.
21. She maintains that the property has, over time, been developed and improved by her mother and that it would therefore be unfair for it to be allocated to another beneficiary. She consequently proposes that Kisumu/Kasule/3490 be allocated to her, citing her long-standing occupation and contribution towards its development.
22. In contrast, the deponent objects to the proposed allocation to her of Kisumu/Kanyadwera/672, which she describes as an ancestral home. She states that, as a daughter, allocation of the property to her may expose her to confrontation with her stepmother and contends that the property ought instead to be allocated to the sons, on the basis that a daughter may subsequently marry and establish her home elsewhere.
23. The Deponent further alleges that the Deceased’s death gratuity of Ksh.3,900,000/-, which was intended to be shared among the beneficiaries, was used, wasted and squandered by Gilbert Otieno Oluoch and Irene Awuor Odhiambo before the Grant was annulled.
24. She consequently contends that the proposed mode of distribution is unfair and biased and favours some beneficiaries to the detriment of others and contrary to the law.
25. With respect to the 8,589 KCB shares, the deponent proposes that they be distributed equally among all the beneficiaries of the estate. She further states that the properties known as Kisumu/Kanyadwera/654 and Kisumu/Kanyadwera/769, which were sold by the 1st Administrator, should form part of the 1st Administrator’s share, and that she should relinquish the other portions of the estate proposed to be allocated to her.
26. The deponent states that she stands to suffer irreparable loss and prejudice if she is deprived of her current place of abode at Kisumu/Kasule/3490, where she has resided for approximately 20 years.
27. She concludes by contending that the proposed mode of distribution demonstrates that Gilbert Otieno Oluoch and Henry Angula Oluoch have apportioned to themselves a major portion of the estate, thereby disadvantaging the other beneficiaries.
28. The date on which the replying affidavit was sworn is not clear from the copy placed before the Court.
29. Yvette Anita Oluoch filed another affidavit, whose date of oath is also not clear, in which she proposes that the summons for confirmation of grant be considered in light of her objections to the proposed mode of distribution.
30. The deponent states that Kisumu/Kasule/3490, which the Applicant proposes to distribute to Irene Awuor Odhiambo and Noel Okoth Oluoch jointly, is the subject of an application dated 8th March, 2024 filed by Christine Akinyi Otieno, which is still pending determination before this Court.
31. She therefore contends that the summons for confirmation of grant has been brought prematurely since the pending application concerns, among other matters, the distribution of properties forming part of the estate.
32. With regard to Kisumu/Kanyadwera/672, the deponent reiterates that she does not wish to have the property allocated to her. She describes it as ancestral land situated in their village and close to the family’s ancestral home and proposes that it be inherited by her two elder brothers, Gilbert Otieno Oluoch and Henry Angula Oluoch, whom she considers to have an advantage as male beneficiaries over a daughter.
33. The Deponent further states that the Applicant failed to disclose the full inventory of the Deceased’s estate, including Afya Sacco savings/shares, which she states were omitted because the other four beneficiaries had already benefited from them.
34. She also alleges that the Applicant failed to disclose the payment of the Deceased’s death gratuity of Ksh.3,900,000/-, which was released through the Public Trustee and distributed as follows: Ksh.200,000/- to herself, Yvette Anita Oluoch, while Ksh.3,700,000/- was shared among Gilbert Otieno Oluoch, Henry Angula Oluoch, Irene Awuor Odhiambo and Noel Okoth Oluoch.
35. The deponent further states that, apart from the death gratuity, funds from the Deceased’s National Hospital Insurance Fund (NHIF) and National Social Security Fund (NSSF) were also paid and shared by Gilbert Otieno Oluoch, Henry Angula Oluoch, Irene Awuor Odhiambo and Noel Okoth Oluoch.
36. She adds that the same four beneficiaries were the sole beneficiaries of the widow/children’s pension fund, notwithstanding that she was a minor at the time of the Deceased’s death and, in her view, ought to have benefited from the fund as well.
37. On account of what she describes as these previous benefits received by the other four beneficiaries following the Deceased’s death, the deponent proposes that the Court take those gains into consideration when distributing the estate and compensate her accordingly.
38. She specifically proposes that L.R. Kisumu/15026/40 and the 8,589 KCB shares be allocated to her, while the remaining properties be shared among the other four beneficiaries. She concludes by urging the Court to adopt a mode of distribution that is fair and considerate of all the beneficiaries.
39. Christine Akinyi Otieno filed an affidavit in protest of the proposed distribution which she swore on 6th October, 2025, in which she contends that the application for confirmation is defective for failure to disclose that her application dated 8th March, 2024 remains pending determination before this Court.
40. She states that she cohabited with the Deceased during which period Yvette Anita Oluoch, the 3rd Administrator, was born, and that she and the Deceased jointly acquired Kisumu/Kasule/3490, as evidenced by the documents annexed to her affidavit in support of the pending application.
41. She further deposes that, following the filing of her application, none of the parties filed an affidavit in response to it or raised any objection. She therefore takes issue with the Applicant’s inclusion of Kisumu/Kasule/3490 in the proposed mode of distribution, contending that the Applicant had not responded to her claim to the property.
42. The Deponent states that when her application came up for hearing, the Court directed that the issue be dealt with at the time of distribution. She consequently prays that the Court recognizes Kisumu/Kasule/3490 as belonging to her, on the basis of the affidavit and exhibits filed in support of her pending application, and excludes the property from distribution among the other beneficiaries.
43. She further prays that her application dated 8th March, 2024 be allowed and that appropriate orders issue to enable her transfer the property into her name.
44. The Applicant, who is the 2nd Administrator, submits that the Deceased, Dr. Hesbon Francis Otieno Oluoch, married the late Norah Akoth Omollo Oluoch on 15th December, 1996 and that their union was blessed with two sons, Gilbert Otieno Oluoch and Henry Angula Oluoch.
45. Following her death on 8th October, 2003, the Deceased cohabited with the 1st Administrator, Irene Awuor Odhiambo, until his death on 31st July, 2014, and their union was blessed with Noel Okoth Oluoch. The Applicant states that he and the 1st Administrator jointly petitioned for the Grant of Letters of Administration Intestate, which was issued on 5th May, 2016, but that the 1st Administrator subsequently intermeddled with the estate and caused seven parcels of land belonging to the Deceased to be fraudulently sold.
46. He states that he and Henry Angula Oluoch thereafter moved the Court for orders to reverse the transactions, hold the 1st Administrator accountable and revoke the Grant issued to her, resulting in orders dated 5th November, 2021 and 7th April, 2025 directing reversion of the properties to the name of the Deceased for purposes of distribution.
47. The Applicant submits that, during the proceedings, Yvette Anita Oluoch emerged as the 3rd Administrator and produced a birth certificate purporting to establish that the Deceased was her father.
48. He states that the 1st Administrator has not responded to the summons for confirmation, while the 3rd Administrator opposes the proposed mode of distribution principally on account of the pending claim by Christine Akinyi Otieno over Kisumu/Kasule/3490, her occupation of that property, her objection to receiving Kisumu/Kanyadwera/672, alleged exclusion from the Deceased’s death gratuity and other funds, and her position concerning the 8,589 KCB shares.
49. The Applicant also addresses the protest by Christine Akinyi Otieno, who claims that she jointly acquired Kisumu/Kasule/3490 with the Deceased and that the property ought therefore to be transferred to her rather than distributed as part of the estate.
50. On the first issue, the Applicant submits that he has no objection to Kisumu/Kasule/3490 being allocated to Yvette Anita Oluoch. He proposes that East Seme/Kombewa/4260, Kisumu/Manyatta ‘A’/361, Kisumu/Manyatta ‘A’/362 and L.R. Kisumu 15026/40 be allocated equally to himself and Henry Angula Oluoch. His reasons are that the properties were acquired during the subsistence of the marriage between the Deceased and his late mother, Norah Akoth Omollo Oluoch, and that she, being a career woman employed by the Postal Corporation of Kenya, assisted the Deceased in their acquisition and development.
51. He particularly identifies the Manyatta properties as having been purchased and developed with his late mother’s assistance and as having constituted the matrimonial home in which he and Henry Angula Oluoch grew up before the properties were allegedly sold by the 1st Administrator.
52. In support of the submission that sentimental value may properly be considered in distributing an estate, the Applicant relies on In the Matter of the Estate of the Late Bedan Wambu Ngarama (Deceased) [2014] eKLR, in which the Court observed that a matrimonial home has not only fiscal value but also great sentimental value to a surviving spouse and children of the deceased.
53. He further relies on In re Estate of Josephat Mwaniki Gitau (Deceased) [2017] KEHC 3369 (KLR), which he submits restated the same position.
54. The Applicant further submits that the 1st Administrator previously sold properties forming part of the estate and retained the proceeds, thereby obtaining an advantage over the other beneficiaries. He therefore proposes that the properties known as Kisumu/Kanyadwera/654 and Kisumu/Kanyadwera/769, which he states have not reverted to the estate, be treated as forming part of the 1st Administrator’s share.
55. As regards the 8,589 KCB shares, the Applicant disputes the 3rd Administrator’s claim to the shares. Although the 3rd Administrator had proposed in her affidavit that the shares be distributed equally among the beneficiaries, the Applicant states that she subsequently sought the entire shareholding. He proposes instead that the shares be allocated equally to himself and Henry Angula Oluoch to assist in meeting the legal costs incurred in the succession proceedings.
56. He submits that he has been the Administrator who has diligently prosecuted the matter, including pursuing the reversion of properties allegedly unlawfully disposed of by the 1st Administrator and contempt proceedings against the Chief Land Registrar, while the other Administrators allegedly remained largely inactive.
57. The Applicant accordingly proposes that Kisumu/Kanyadwera/671 be allocated equally to Irene Awuor Odhiambo and Noel Okoth Oluoch; Kisumu/Kanyadwera/672 be allocated to Irene Awuor Odhiambo and Noel Okoth Oluoch jointly; Kisumu/Kombewa/4259 be allocated to Yvette Anita Oluoch; East Seme/Kombewa/4260, Kisumu/Manyatta ‘A’/361, Kisumu/Manyatta ‘A’/362 and L.R. Kisumu 15026/40 be allocated equally to Gilbert Otieno Oluoch and Henry Angula Oluoch; Kisumu/Kasule/3490 be allocated solely to Yvette Anita Oluoch; and the 8,589 KCB shares be allocated equally to Gilbert Otieno Oluoch and Henry Angula Oluoch.
58. On the question whether the Deceased’s Afya Sacco savings, death gratuity, NHIF benefits, NSSF benefits and widow/children’s pension form part of the free estate, the Applicant submits that such benefits are governed by the respective statutory regimes and applicable nomination arrangements and do not ordinarily form part of the estate available for distribution under the law of intestate succession.
59. He relies on Section 37(2) of the Retirement Benefits Act, which provides that retirement benefits are payable to the nominated person or, in the absence of nomination, to the legal dependants, and that such benefits do not form part of the deceased’s estate or become subject to intestate succession.
60. He also relies on Section 24(3) of the Pensions Act, which similarly provides that a public servant’s pension or gratuity is payable to the nominated person or, in the absence of nomination, the legal dependants and does not form part of the deceased’s estate.
61. The Applicant further relies on Section 31 of the Social Health Insurance Act, which provides that benefits from the Fund are to be paid directly to the nominated dependants and do not form part of the deceased’s estate, and Section 34 of the National Social Security Fund Act, which provides for payment of a death benefit to the nominated person or, in the absence of nomination, the legal dependants, and expressly excludes such benefit from the deceased member’s estate and the operation of the law of intestate succession.
62. In relation to the Afya Sacco savings and shares, he relies on Section 39 of the Co-operative Societies Act, which regulates the transfer or payment of a deceased member’s share or interest to the nominee, personal representative or another qualified person in accordance with the Act, rules and by-laws of the society.
63. The Applicant also relies on Re Estate of the Late Guya Robert Otieno (Deceased) (Succession Cause E006 of 2021) [2024] KEHC 7694 (KLR), where the High Court held, in substance, that a probate court has no jurisdiction to determine issues arising from funds held in a retirement benefits scheme where the benefits have a specially prescribed mode of distribution and internal mechanisms of redress. The Court further held that gratuity which does not form part of the deceased’s free estate should be distributed in accordance with the Retirement Benefits Act and the relevant scheme rules, with the guidance of the scheme trustees, rather than through the succession court.
64. On that basis, the Applicant submits that the 3rd Administrator is mistaken in contending that the Deceased’s death gratuity and other such benefits ought to form part of the free estate or affect the distribution thereof.
65. On the third issue, concerning Kisumu/Kasule/3490, the Applicant submits that Christine Akinyi Otieno claims ownership on the basis that she jointly acquired the property with the Deceased and is, in effect, asserting survivorship under the principle of jus accrescendi.
66. The Applicant contends, however, that the property was registered solely in the name of the Deceased and that there is no evidence of joint ownership.
67. He relies in this regard on the Court’s order of 22nd May, 2024, which he states has not been successfully challenged by way of review or appeal. The effect of the order was to revert the property back to the Deceased’s name.
68. The Applicant further submits that Christine Akinyi Otieno has neither established that she was married to or cohabited with the Deceased nor demonstrated that she contributed to the acquisition or development of Kisumu/Kasule/3490, participated in its purchase or payment of the purchase price, was registered as a proprietor thereof, or that the Deceased held the property in trust for her. He invokes Section 107 of the Evidence Act, which places the burden of proving a fact on the person who asserts its existence.
69. He specifically submits that, although Christine alleges in her application dated 8th March, 2024 that she contributed Ksh.30,000/- towards the purchase price of Ksh.80,000/- using an Afya Sacco loan, she has not produced evidence demonstrating that she was an Afya Sacco member, obtained such a loan, applied it towards the purchase of the property or otherwise acquired the property jointly with the Deceased.
70. The Applicant relies on Re Estate of Late Josephat Irungu Kanyi alias Josephat Kanyi (Deceased) [2024] KEHC 15397 (KLR), where the Court considered the absence of evidence of joint ownership and held that Section 93 of the Land Registration Act could not apply where there was no evidence that the deceased and the protestor jointly owned the property in question. The Applicant submits that the same reasoning applies to Christine Akinyi Otieno’s claim.
71. The Applicant further draws attention to this Court’s ruling of 22nd May, 2024, delivered in the presence of Christine Akinyi Otieno’s Counsel, in which the Court allowed the application dated 12th April, 2024 seeking reversion of Kisumu/Kasule/3490 and Kisumu/Kanyadwera/671 to the name of the Deceased for purposes of distribution; ordered the title to Kisumu/Kasule/3490 to revert to the Deceased and directed the Chief Land Registrar to effect the reversion; and held that Christine Akinyi Otieno’s application dated 8th March, 2024 was premature and ought to await distribution of the estate.
72. The Applicant submits that Christine did not appeal that decision and that the property consequently forms part of the estate available for distribution.
73. Finally, the Applicant submits that the probate court lacks jurisdiction to determine disputes concerning ownership of land, which he contends fall within the jurisdiction of the Environment and Land Court under Article 162(2)(b) of the Constitution. He relies on Re Estate of Joseph Kipkemoi Limo (Deceased) (Succession Cause E040 of 2021) [2025] KEHC 1623 (KLR), where the High Court held that the role of a probate court is to identify the deceased’s estate, identify the lawful beneficiaries and distribute the estate, while disputes concerning land ownership and property rights fall within the constitutional jurisdiction of the Environment and Land Court.
74. The Applicant therefore submits that this Court lacks jurisdiction to determine Christine Akinyi Otieno’s claim to ownership of Kisumu/Kasule/3490 and urges the Court to allow the summons for confirmation of grant and distribute the estate in accordance with his proposed mode of distribution.
75. In her submissions, the 3rd Administrator, Yvette Anita Oluoch states that the Deceased was married to two wives and also cohabited with Christine Akinyi Otieno, her mother. She maintains that she is the undisputed daughter of the Deceased by virtue of that union.
76. She concurs with the 2nd Administrator that the 1st Administrator intermeddled with the estate and sold several properties belonging to it.
77. She maintains her proposed mode of distribution as set out in her affidavit.
78. The 3rd Administrator submits that the estate ought not to be distributed in accordance with the proposal of the 2nd Administrator, which she contends is biased and discriminatory against her. She maintains that the Court should take into account the previous benefits received by Gilbert Otieno Oluoch, Henry Angula Oluoch, Irene Awuor Odhiambo and Noel Okoth Oluoch following the death of the Deceased, and compensate her accordingly in the distribution of the estate.
79. She further submits that the properties sold by the 1st Administrator and from which she solely benefited should, particularly where recovery is no longer possible, be treated as part of her share obtained in advance.
80. The 3rd Administrator relies on In re Estate of Simiyu Amtala alias Siniyu Amtala (Deceased), Family Appeal No. E003 of 2022 [2025] KEHC 18815 (KLR), in which, according to her, the Court held that children of a deceased person, whether born within or outside wedlock, are equally entitled to inherit from the estate.
81. She also relies on In re Estate of the Late John Kiptum Bartilol (Deceased), Succession Cause No. 17 of 2001 [2023] KEHC 22629 (KLR), where the Court held, as submitted, that failure to provide for children born out of wedlock amounts to discrimination on the ground of the marital status of their parents, and that such children are entitled to inherit irrespective of whether their mothers were married to the deceased.
82. With regard to her own proposed mode of distribution, the 3rd Administrator submits that she ought not to be allocated the ancestral property proposed by the 2nd Administrator, but should instead receive property away from the ancestral home so as to avoid future conflicts.
83. She further complains that the 2nd Administrator did not seek her consent before filing the summons for confirmation.
84. She proposes that she be allocated L.R. Kisumu/15026/40 together with the KCB shares, while the remaining properties be distributed among the other beneficiaries.
85. She also supports Christine Akinyi Otieno’s claim to Kisumu/Kasule/3490, on the basis that Christine contributed towards its purchase and had previously moved the Court in that regard.
86. On the death gratuity, Afya Sacco savings, NHIF funds, NSSF funds and the widow and children’s pension fund, the 3rd Administrator submits that all such funds ought to form part of the estate and should be accounted for before distribution.
87. She contends that the funds were disbursed while she was still a minor and that the 1st and 2nd Administrators failed to take into account her beneficial interest therein.
88. She maintains that the Constitution and the Law of Succession Act do not permit discrimination among beneficiaries and urges the Court to require the recipients of the said funds to account for them, so that her interest may be taken into consideration in the final distribution.
89. On the question of ownership of Kisumu/Kasule/3490, the 3rd Administrator submits that this Court has jurisdiction to determine the dispute and to recognize Christine Akinyi Otieno’s interest in the property. She contends that Christine occupied the property and contributed towards its purchase together with the Deceased, and that her contribution is demonstrated in the affidavit filed in support of her application.
90. It is submitted that unless the property is dealt with at this stage, Christine may be deprived of the benefit of her contribution. The Court is therefore urged to have the property bequeathed to Christine unconditionally in order to bring the dispute to an end and avoid further family conflict and litigation.
91. Finally, the 3rd Administrator submits that the estate should be distributed fairly and equitably among all the identified beneficiaries, and that each party should bear his or her own costs without burdening the estate.
92. The 1st Administrator, Irene Awuor Odhiambo, did not participate in
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