Introduction
1. The deceased in this cause died intestate on 13th March 1990 at Kalaji Kadhiambo sub-location, Kisumu County leaving behind 3 widows two of whom had children. The deceased’s beneficiaries who are alive as at the time of writing this judgement are as follows
2. Regina Ogutu Ogwang (1st Wife) – Plister Ayodo Ogwang (Deceased succeeded by children)
Rose Aoko Ogwang (Deceased with no children)
Veronica Auma Ogwang (Deceased with no children)
Tobias Owino Ogwang (Petitioner)
Mary Atieno Ogwang (Deceased with no children)
Benter Adhiambo Odhiambo (Protestor)
Cornelia Akoth Ogwang (Deceased succeeded by children)
Serfine Akinyi Ogwang (Deceased with no children)
Wilfrida Ogada (2nd Wife) – Deceased with no children
Rose Anyango (3rd Wife) - Henry Odhiambo Ogwang
Moses Otieno Ogwang
Charles Odongo Ogwang
Titus Onyango Ogwang
Wycliffe Odhiambo Ogwang
Phoebe Akinyi Ogwang
Rose Atieno Ogwang
3. At the time of his death, the deceased’s estate comprised land parcels number; Kisumu/Koru/637 measuring 1.3Ha and Kisumu/Koru/328 measuring 2.9Ha.
4. From the aforementioned it is clear that the beneficiaries and assets of the deceased’s estate are not in dispute.
5. A grant of letters of administration of the deceased’s estate was issued to the petitioner but the same was revoked by Lady Justice Cherere on grounds that the same was issued without the involvement of the family/beneficiaries of the estate and further that there was also non-disclosure of facts before the judge. The parties were then referred to the Assistant County Commissioner’s Office to oversee the discussions on mode of distribution of the deceased’s estate.
6. The record is that vide an affidavit of protest filed on 8th December 2021 and 24th August 2022 the protestors sought that Benter Adhiambo Owino, the deceased’s daughter be included in the mode of distribution of all the deceased’s estate as a beneficiary and her apportionment be made clear further that the surviving children of the late Cornelia Akoth Ogwang (Jane Atieno) and late Philister Ayodo Ogwang (Jeremiah Mito) similarly be included the mode of distribution of the deceased’s estate.
7. On his part, the petitioner informed court that prior to the deceased’s death, the deceased had granted him 2 acres out of the estate that further as the deceased had run into arrears in settling the amount he had paid for the suit properties, he took out a loan and proceeded to settle the said amount after the deceased’s passing and eventually cleared the same.
8. The petitioner averred that following issuance of letters of administration of grant in 1990, the deceased’s estate devolved to him but that he held the same on behalf of his mother, the deceased’s 1st wife, the 2nd wife and the 3rd wife and that is why the title deeds over the suit property were in his name.
9. The petitioner further averred that all the houses were harvesting sugarcane out of the deceased’s sugar cane plot but that he was the only one paying and servicing various loans left behind by the deceased.
10. The petitioner further averred that he had lived in land parcel number Kisumu/Koru/637 for over 30 years with his 2 wives and 15 children and there was simply no space that he could carve out for his nephew Jeremiah Mito, one of the protestors herein.
11. I have considered the pleadings herein, analysed the submissions filed by all the parties herein.
12. The primary duty of this court in the exercise of its jurisdiction as a probate court can be coined in what William Musyoka J, stated In Re Estate of G K K (Deceased) [2017] eKLR that:
“The primary function of a probate court is distribution of the estate of a dead person.”
13. It is in doubt that all the parties herein are beneficiaries of the deceased. The petitioner, objector and one of the protestors, Benter Adhiambo Awino are children of the deceased while Jeremiah Mito and Jane Atieno are grandchildren of the deceased whose parents died as these proceedings were taking place.
14. I also note that the deceased’s estate comprised of two parcels of land namely Kisumu/Koru/637 and Kisumu/Koru/328 which from the record seem to be registered in the petitioner’s name despite the court revoking the grant issued to him.
15. The petitioner attributes the registration of the suit properties to his name on the fact that he was the one who cleared the loans that the deceased had accrued from purchasing the suit properties noting that all the houses (wives) left by the deceased had access to the sugar cane plot and harvested the same but that he was the only one who used his proceeds to clear the debt left by the deceased.
16. It must be noted that when petitioning for grant of letters of administration, all the deceased’s assets and liabilities must be listed in Form P&A 5 which was not the case when the petitioner made his application for letters of administration. In any case the deceased’s debt were settled by proceeds from his estate.
17. The petitioner also claimed that prior to his death, the deceased had granted him 2 acres out of his net estate. The Law of Succession contemplates that in gift inter vivos, the gift must go into immediate and absolute effect in that it should be delivered to the beneficiary. This court has held that it is fundamental to understand the intention of the parties and their acts done sufficient to establish the passing of the gift to the done. See the case of In re Estate of Godana Songoro Guyo (Deceased)[2020] eKLR.
18. It has also been held that gift inter vivos must be established by evidence. In re Estate of The Late Gedion Manthi Nzioka (Deceased)[2015] eKLR the court held:
For gifts inter vivos , the requirements of law are that the said gift may be granted by deed, an instrument in writing or by delivery, by way of a declaration of trust by the donor, or by way of resulting trusts or the presumption of. Gifts of land must be by way of registered transfer, or if the land is not registered it must be in writing or by a declaration of trust in writing. Gifts inter vivos must be complete for the same to be valid. In this regard it is not necessary for the donee to give express acceptance, and acceptance of a gift is presumed until or unless dissent or disclaimer is signified by the donee. See in this regard Halsburys Laws of England 4thEdition Volume 20(1) at paragraph 32 to 51.
In Halsburys Laws of England 4th Edition Volume 20(1) at paragraph 67 it is stated as follows with respect to incomplete gifts:
“Where a gift rests merely in promise, whether written or oral, or in unfulfilled intention, it is incomplete and imperfect, and the court will not compel the intending donor, or those claiming under him, to complete and perfect it, except in circumstances where the donor’s subsequent conduct gives the done a right to enforce the promise. A promise made by deed is however, binding even though it is made without consideration. If a gift is to be valid the donor must have done everything which according to the nature of the property comprised in the gift, was necessary to be done by him in order to transfer the property and which it was in his power to do.”
19. From the foregoing, I find that the alleged transmission between the petitioner and the deceased does not then qualify to be gift inter vivos as stipulated under the Law of Succession Act as the established conditions have not been met. Therefore, in the absence of any concreate evidence as to the sale transaction or gift inter vivos I find that the properties forming part of the deceased’s estate are intact wholly and still remains part of the estate of the deceased.
20. The upshot of all the above is that all previous transmissions, transfer or sub division of the deceased’s net estate are voided and cancelled ab initio.
21. Turning to the mode of distribution, I have noted that the mode of distribution as presented by the petitioner is disputed. The court did refer the parties herein to the Assistant County Commissioner to aid in discussions on how the deceased’s estate would be distributed. This is not bound by the proposal emanating thereof especially where the same is disputed by parties herein and further because it’s primary function is to distribute a deceased’s estate amongst the estate’s beneficiaries.
22. The protestors and objectors herein averred that all they were seeking was equal distribution of the deceased’s estate between all the deceased’s beneficiaries.
23. Regarding distribution of the estate of a polygamous intestate, Section 40 of the Law of Succession Act provides as follows:
“(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 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”.
24. As was stated by Hon. Justice J.K. Karanja in the case of In re Estate of Michael George Tendwa Said (Deceased) [2020] eKLR, Section 40 above is the applicable law where there is no agreement on distribution of the estate. He sated as follows:
“any proposed mode of distribution ought to be compatible with and in accordance with the provision thereby leaving no room for distribution based on the whim of the holder of the grant or his/her sentimental feelings”
25. Regarding “equality” in distribution as mentioned in Section 40 above, Court of Appeal in the case of Stephen Gitonga M’murithi –v- Faith Ngira Murithi [2015] eKLR, observed as follows:
“Section 38 enshrines the principle of equal distribution of the net intestate estate to the surviving children of the deceased irrespective of gender and whether married and comfortable in their marriage or unmarried.Section 40 on the other hand enjoins the inclusion of a surviving spouse as an additional unit to each house hold of a polygamous deceased. Applying the above principles …… it is our finding that the learned trial Judge fell into an error when he failed to accord equal distribution to all the children of the deceased in violation of section 38 of the Law of Succession Act by discriminating against the married daughters of the deceased…”
26. Further, in the case of In Re Estate of John Musambayi Katumanga – (Deceased) [2014] eKLR Musyoka J stated as follows:
“Under Section 40 of the Act, if the deceased had several wives, as opposed to households, the estate would devolve depending on the number of children. Ideally, the estate would be divided equally among all the members of the entire household, lumping the children and the surviving spouses together. After that the family members would retreat to their respective houses where Section 35 of the Act would be put into effect, so that if there was a surviving spouse in a house she would enjoy life interest over the property due to her children. The house without a surviving spouse would split its entitlement in terms of Section 38 of the Law of Succession Act, the children would divide the estate equally amongst themselves. Section 40 was not designed for the circumstances of the instant estate, but it would appear more appealing for the purpose of distribution of the said estate than Section 35. 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.”
27. However, in the case of Esther Wanjiku Burugu Vs Margaret Wairimu Burugu, Civil Appeal No. 319 of 2002, the Court of Appeal guided that Section 40 does not stipulate that the division of the estate must be equal and states that although the distribution of the estate of a polygamous person is in the first instant to be among the houses, nonetheless distribution would be done according to the number of children in each house. The Court stated that the language adopted in Section 40 negates any argument that the division must necessarily be equal between or among the houses, for to say so, would ignore the fact that in most instances, the number of children in each house is never equal.
28. Similarly, in another Court of Appeal case, namely, Mary Rono Vs Jane Rono & Another [2005] eKLR, while concurring with the Judgment of Waki JJ, Omollo JJ stated that if Parliament had intended that there must be equality between the houses, then there would have been no need to provide in Section 40 above that the number of children in each house be taken into account. This is how he put it:
“My understanding of that section is that while the net intestate estate is to be distributed according to houses, each house being treated as a unit, yet the Judge doing the distribution still has a discretion to take into account or consider 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.Nor 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 the Act does not provide for that kind of equality.”
29. The above views, read together, give rise to the generally agreed position that Section 40 does not give blanket discretion to a Court to deviate from the general principles stipulated therein. Thus, where a matter is contentious and the parties have not reached a consent, the Court is bound to apply the statutory provisions. In other words, the Court has no power to substitute the statutory principles for its own notion of what is an equitable or just decision. It is however also agreed that a Court has some level of limited residuary discretion within the statutory provisions to make adjustment to the share of each house or of a beneficiary. This was the view adopted in the case of Re Estate of Chesimbili Sindani (Deceased) [2021] eKLR.
30. In the instant case, it is undisputed that the deceased had 3 wives, one of whom died without having any children. The 1st wife passed on in the course of this suit but is survived by two children, the petitioner and one of the protestors, Benter Adhiambo Owino. I also note that 2 children of the 1st wife died leaving behind the other 2 protestors, Jeremiah Mito & Jane Atieno. In essence then the 1st house has 4 shares.
31. As the deceased’s 2nd wife died without any children, her house shall not be considered in the distribution.
32. The deceased’s 3rd wife also passed on in the course of these proceedings leaving behind 7 children, as such the 3rd house shall have 7 shares.
33. Taking into consideration the above, I hereby order that each of the properties referenced as parcels number; Kisumu/Koru/637 measuring 1.3Ha and Kisumu/Koru/328 measuring 2.9Ha be divided into 11 equal shares with the 1st house receiving 4 shares and the 3rd house receiving 7 shares.
34. This being a family matter each party shall bear it’s own costs.
35. Mention On 7.7.2025 to confirm distribution
It is so ordered.
Delivered, signed and dated at Kisumu this 7th day of February 2025
In the presence of:
Ms Odhong for the protestor
1. The deceased in this cause died intestate on 13th March 1990 at Kalaji Kadhiambo sub-location, Kisumu County leaving behind 3 widows two of whom had children. The deceased’s beneficiaries who are alive as at the time of writing this judgement are as follows
2. Regina Ogutu Ogwang (1st Wife) – Plister Ayodo Ogwang (Deceased succeeded by children)
Rose Aoko Ogwang (Deceased with no children)
Veronica Auma Ogwang (Deceased with no children)
Tobias Owino Ogwang (Petitioner)
Mary Atieno Ogwang (Deceased with no children)
Benter Adhiambo Odhiambo (Protestor)
Cornelia Akoth Ogwang (Deceased succeeded by children)
Serfine Akinyi Ogwang (Deceased with no children)
Wilfrida Ogada (2nd Wife) – Deceased with no children
Rose Anyango (3rd Wife) - Henry Odhiambo Ogwang
Moses Otieno Ogwang
Charles Odongo Ogwang
Titus Onyango Ogwang
Wycliffe Odhiambo Ogwang
Phoebe Akinyi Ogwang
Rose Atieno Ogwang
3. At the time of his death, the deceased’s estate comprised land parcels number; Kisumu/Koru/637 measuring 1.3Ha and Kisumu/Koru/328 measuring 2.9Ha.
4. From the aforementioned it is clear that the beneficiaries and assets of the deceased’s estate are not in dispute.
5. A grant of letters of administration of the deceased’s estate was issued to the petitioner but the same was revoked by Lady Justice Cherere on grounds that the same was issued without the involvement of the family/beneficiaries of the estate and further that there was also non-disclosure of facts before the judge. The parties were then referred to the Assistant County Commissioner’s Office to oversee the discussions on mode of distribution of the deceased’s estate.
6. The record is that vide an affidavit of protest filed on 8th December 2021 and 24th August 2022 the protestors sought that Benter Adhiambo Owino, the deceased’s daughter be included in the mode of distribution of all the deceased’s estate as a beneficiary and her apportionment be made clear further that the surviving children of the late Cornelia Akoth Ogwang (Jane Atieno) and late Philister Ayodo Ogwang (Jeremiah Mito) similarly be included the mode of distribution of the deceased’s estate.
7. On his part, the petitioner informed court that prior to the deceased’s death, the deceased had granted him 2 acres out of the estate that further as the deceased had run into arrears in settling the amount he had paid for the suit properties, he took out a loan and proceeded to settle the said amount after the deceased’s passing and eventually cleared the same.
8. The petitioner averred that following issuance of letters of administration of grant in 1990, the deceased’s estate devolved to him but that he held the same on behalf of his mother, the deceased’s 1st wife, the 2nd wife and the 3rd wife and that is why the title deeds over the suit property were in his name.
9. The petitioner further averred that all the houses were harvesting sugarcane out of the deceased’s sugar cane plot but that he was the only one paying and servicing various loans left behind by the deceased.
10. The petitioner further averred that he had lived in land parcel number Kisumu/Koru/637 for over 30 years with his 2 wives and 15 children and there was simply no space that he could carve out for his nephew Jeremiah Mito, one of the protestors herein.
11. I have considered the pleadings herein, analysed the submissions filed by all the parties herein.
12. The primary duty of this court in the exercise of its jurisdiction as a probate court can be coined in what William Musyoka J, stated In Re Estate of G K K (Deceased) [2017] eKLR that:
“The primary function of a probate court is distribution of the estate of a dead person.”
13. It is in doubt that all the parties herein are beneficiaries of the deceased. The petitioner, objector and one of the protestors, Benter Adhiambo Awino are children of the deceased while Jeremiah Mito and Jane Atieno are grandchildren of the deceased whose parents died as these proceedings were taking place.
14. I also note that the deceased’s estate comprised of two parcels of land namely Kisumu/Koru/637 and Kisumu/Koru/328 which from the record seem to be registered in the petitioner’s name despite the court revoking the grant issued to him.
15. The petitioner attributes the registration of the suit properties to his name on the fact that he was the one who cleared the loans that the deceased had accrued from purchasing the suit properties noting that all the houses (wives) left by the deceased had access to the sugar cane plot and harvested the same but that he was the only one who used his proceeds to clear the debt left by the deceased.
16. It must be noted that when petitioning for grant of letters of administration, all the deceased’s assets and liabilities must be listed in Form P&A 5 which was not the case when the petitioner made his application for letters of administration. In any case the deceased’s debt were settled by proceeds from his estate.
17. The petitioner also claimed that prior to his death, the deceased had granted him 2 acres out of his net estate. The Law of Succession contemplates that in gift inter vivos, the gift must go into immediate and absolute effect in that it should be delivered to the beneficiary. This court has held that it is fundamental to understand the intention of the parties and their acts done sufficient to establish the passing of the gift to the done. See the case of In re Estate of Godana Songoro Guyo (Deceased)[2020] eKLR.
18. It has also been held that gift inter vivos must be established by evidence. In re Estate of The Late Gedion Manthi Nzioka (Deceased)[2015] eKLR the court held:
For gifts inter vivos , the requirements of law are that the said gift may be granted by deed, an instrument in writing or by delivery, by way of a declaration of trust by the donor, or by way of resulting trusts or the presumption of. Gifts of land must be by way of registered transfer, or if the land is not registered it must be in writing or by a declaration of trust in writing. Gifts inter vivos must be complete for the same to be valid. In this regard it is not necessary for the donee to give express acceptance, and acceptance of a gift is presumed until or unless dissent or disclaimer is signified by the donee. See in this regard Halsburys Laws of England 4thEdition Volume 20(1) at paragraph 32 to 51.
In Halsburys Laws of England 4th Edition Volume 20(1) at paragraph 67 it is stated as follows with respect to incomplete gifts:
“Where a gift rests merely in promise, whether written or oral, or in unfulfilled intention, it is incomplete and imperfect, and the court will not compel the intending donor, or those claiming under him, to complete and perfect it, except in circumstances where the donor’s subsequent conduct gives the done a right to enforce the promise. A promise made by deed is however, binding even though it is made without consideration. If a gift is to be valid the donor must have done everything which according to the nature of the property comprised in the gift, was necessary to be done by him in order to transfer the property and which it was in his power to do.”
19. From the foregoing, I find that the alleged transmission between the petitioner and the deceased does not then qualify to be gift inter vivos as stipulated under the Law of Succession Act as the established conditions have not been met. Therefore, in the absence of any concreate evidence as to the sale transaction or gift inter vivos I find that the properties forming part of the deceased’s estate are intact wholly and still remains part of the estate of the deceased.
20. The upshot of all the above is that all previous transmissions, transfer or sub division of the deceased’s net estate are voided and cancelled ab initio.
21. Turning to the mode of distribution, I have noted that the mode of distribution as presented by the petitioner is disputed. The court did refer the parties herein to the Assistant County Commissioner to aid in discussions on how the deceased’s estate would be distributed. This is not bound by the proposal emanating thereof especially where the same is disputed by parties herein and further because it’s primary function is to distribute a deceased’s estate amongst the estate’s beneficiaries.
22. The protestors and objectors herein averred that all they were seeking was equal distribution of the deceased’s estate between all the deceased’s beneficiaries.
23. Regarding distribution of the estate of a polygamous intestate, Section 40 of the Law of Succession Act provides as follows:
“(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 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”.
24. As was stated by Hon. Justice J.K. Karanja in the case of In re Estate of Michael George Tendwa Said (Deceased) [2020] eKLR, Section 40 above is the applicable law where there is no agreement on distribution of the estate. He sated as follows:
“any proposed mode of distribution ought to be compatible with and in accordance with the provision thereby leaving no room for distribution based on the whim of the holder of the grant or his/her sentimental feelings”
25. Regarding “equality” in distribution as mentioned in Section 40 above, Court of Appeal in the case of Stephen Gitonga M’murithi –v- Faith Ngira Murithi [2015] eKLR, observed as follows:
“Section 38 enshrines the principle of equal distribution of the net intestate estate to the surviving children of the deceased irrespective of gender and whether married and comfortable in their marriage or unmarried.Section 40 on the other hand enjoins the inclusion of a surviving spouse as an additional unit to each house hold of a polygamous deceased. Applying the above principles …… it is our finding that the learned trial Judge fell into an error when he failed to accord equal distribution to all the children of the deceased in violation of section 38 of the Law of Succession Act by discriminating against the married daughters of the deceased…”
26. Further, in the case of In Re Estate of John Musambayi Katumanga – (Deceased) [2014] eKLR Musyoka J stated as follows:
“Under Section 40 of the Act, if the deceased had several wives, as opposed to households, the estate would devolve depending on the number of children. Ideally, the estate would be divided equally among all the members of the entire household, lumping the children and the surviving spouses together. After that the family members would retreat to their respective houses where Section 35 of the Act would be put into effect, so that if there was a surviving spouse in a house she would enjoy life interest over the property due to her children. The house without a surviving spouse would split its entitlement in terms of Section 38 of the Law of Succession Act, the children would divide the estate equally amongst themselves. Section 40 was not designed for the circumstances of the instant estate, but it would appear more appealing for the purpose of distribution of the said estate than Section 35. 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.”
27. However, in the case of Esther Wanjiku Burugu Vs Margaret Wairimu Burugu, Civil Appeal No. 319 of 2002, the Court of Appeal guided that Section 40 does not stipulate that the division of the estate must be equal and states that although the distribution of the estate of a polygamous person is in the first instant to be among the houses, nonetheless distribution would be done according to the number of children in each house. The Court stated that the language adopted in Section 40 negates any argument that the division must necessarily be equal between or among the houses, for to say so, would ignore the fact that in most instances, the number of children in each house is never equal.
28. Similarly, in another Court of Appeal case, namely, Mary Rono Vs Jane Rono & Another [2005] eKLR, while concurring with the Judgment of Waki JJ, Omollo JJ stated that if Parliament had intended that there must be equality between the houses, then there would have been no need to provide in Section 40 above that the number of children in each house be taken into account. This is how he put it:
“My understanding of that section is that while the net intestate estate is to be distributed according to houses, each house being treated as a unit, yet the Judge doing the distribution still has a discretion to take into account or consider 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.Nor 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 the Act does not provide for that kind of equality.”
29. The above views, read together, give rise to the generally agreed position that Section 40 does not give blanket discretion to a Court to deviate from the general principles stipulated therein. Thus, where a matter is contentious and the parties have not reached a consent, the Court is bound to apply the statutory provisions. In other words, the Court has no power to substitute the statutory principles for its own notion of what is an equitable or just decision. It is however also agreed that a Court has some level of limited residuary discretion within the statutory provisions to make adjustment to the share of each house or of a beneficiary. This was the view adopted in the case of Re Estate of Chesimbili Sindani (Deceased) [2021] eKLR.
30. In the instant case, it is undisputed that the deceased had 3 wives, one of whom died without having any children. The 1st wife passed on in the course of this suit but is survived by two children, the petitioner and one of the protestors, Benter Adhiambo Owino. I also note that 2 children of the 1st wife died leaving behind the other 2 protestors, Jeremiah Mito & Jane Atieno. In essence then the 1st house has 4 shares.
31. As the deceased’s 2nd wife died without any children, her house shall not be considered in the distribution.
32. The deceased’s 3rd wife also passed on in the course of these proceedings leaving behind 7 children, as such the 3rd house shall have 7 shares.
33. Taking into consideration the above, I hereby order that each of the properties referenced as parcels number; Kisumu/Koru/637 measuring 1.3Ha and Kisumu/Koru/328 measuring 2.9Ha be divided into 11 equal shares with the 1st house receiving 4 shares and the 3rd house receiving 7 shares.
34. This being a family matter each party shall bear it’s own costs.
35. Mention On 7.7.2025 to confirm distribution
It is so ordered.
Delivered, signed and dated at Kisumu this 7th day of February 2025
In the presence of:
Ms Odhong for the protestor