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High CourtPartially Allowed· [2020] KEHC 3820 (KLR)

In re Estate of Stephen Wahome Gikonyo (Deceased) - Jane Ngima Wahome v Samuel Gikonyo Wahome (Protest)

High Court of Kenya
5 August 2020
NJNgaah Jairus
2,772 words in judgment
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·~11 min to read original · ~4 min brief

The bottom line

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In polygamous estates, the court prioritizes fairness and equity over strict equal division when distributing land.

What this practically means

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Executive summary

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This was a confirmation of grant dispute in the estate of Stephen Wahome Gikonyo, who died intestate in December 2006 aged about 100, survived by two wives - the applicant Jane Ngima Wahome (childless) and Revereta Wamabaire Wahome (who died in February 2013) - and seven children all from the first house. The applicant sought confirmation of a grant made to her alone on 13 April 2010 and proposed a distribution favouring herself and her co-wife. The protester, the deceased's first-born son, filed affidavits of protest proposing distribution among the sons with a life interest to the applicant. The court held that the only confirmable grant was the joint grant of 27 April 2012, the applicant's earlier grant having been revoked; that no allocation could be made to the deceased co-wife; and that the alleged written wishes of the deceased could not govern distribution absent a will under sections 5(1) and 8 of the Law of Succession Act. Applying section 40 and the Court of Appeal's decision in Rono v Rono, the court held that equality is not decisive and that fairness, equity and the court's discretion govern. It confirmed the joint grant and ordered that Thegenge/Kianjogu/968 and Plot No. 5 Kagwathi be registered in the applicant's name subject to life interest, and that the Muhotetu land be shared equally among the five children of the first house. Each party to bear their own costs as a family dispute.

Key legal issues

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01

Which grant is confirmable

Holding

Only the joint grant of 27 April 2012 to the applicant and protester is confirmable; the applicant's 13 April 2010 grant was revoked

Reasoning

The court's earlier ruling appointed both parties as joint administrators and that grant has never been revoked or annulled. The applicant's prayer to confirm the 2010 grant therefore had no factual or legal basis, since a revoked grant cannot be confirmed.

p. 2
02

Effect of the deceased's alleged written wishes

Holding

The alleged written wishes cannot govern distribution because no will was filed; the estate is distributable only under the intestacy provisions

Reasoning

The petition was made on the basis of intestacy. Any written will should have been filed for probate or letters with will annexed. Without evidence of a will, oral or written, distribution must follow the intestate provisions, namely section 40 for a polygamous family.

p. 3
03

Distribution under section 40 in a polygamous family

Holding

The estate was distributed with the applicant (second widow, childless) taking Thegenge/Kianjogu/968 and Plot No. 5 Kagwathi subject to life interest, and the Muhotetu land shared equally among the five children of the first house

Reasoning

Applying section 40(1) and the Rono discretion, the court weighed that one house had seven children and the other none, that the sons had been gifted land inter vivos, that the applicant had lived on Thegenge land since 1957 and exclusively collected rent from the plot, and that the family had lived peacefully in that arrangement.

p. 4

Legal principles established

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  • In a polygamous intestacy, equal division among houses or children is relevant but not decisive; fairness, equity and the court's discretion informed by section 40(1) factors and the peculiar circumstances govern
  • Distribution according to a deceased's alleged wishes is impermissible absent evidence of a will, oral or written, under sections 5(1) and 8 of the Law of Succession Act

Court orders

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  1. 1.Title No. Thegenge/Kianjogu/968 shall be transferred and registered in the name of Jane Ngima Wahome subject to life interest
  2. 2.Plot No. 5 Kiagwathi shall be transferred and registered in the name of Jane Ngima Wahome subject to life interest
  3. 3.Title Number Gituamba/Muhotetu/Block 2/991 shall be shared out equally among Mary Nyambura Wahome, Samuel Wahome Gikonyo, Ambrose Mwangi Wahome, Simon Mwaniki Wahome and Moses Maina Wahome
  4. 4.The grant of letters of administration intestate made in the joint names of the applicant and the protestor on 27 April 2012 is confirmed in the foregoing terms
  5. 5.Each party to bear their respective costs (family dispute)

Authorities

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Legislation

  • Law of Succession Act, Cap 160section 5(1)
  • Law of Succession Act, Cap 160section 8
  • Law of Succession Act, Cap 160section 40(1) and 40(2)
  • Law of Succession Act, Cap 160sections 35 to 38

Cases cited (1)

  • Mary Rono versus Jane Rono & William Rono, Eldoret Civil Appeal No. 66 of 2002
    (2005) eKLR

    Section 40(1) does not mandate equality between houses or among children; the court retains discretion informed by the number of children in each house

Jurisdiction invoked
Law of Succession Act, Cap 160 (probate and administration jurisdiction over intestate estate)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "In re Estate of Stephen Wahome Gikonyo (Deceased) - Jane Ngima Wahome v Samuel Gikonyo Wahome (Protest)", Case Analysis (2020). . Source:

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.