In re Estate of Johanna Kipruto Mosonik (Deceased) (Probate & Administration 348 of 2013) [2024] KEHC 3421 (KLR) (11 April 2024) (Ruling) Neutral citation: [2024] KEHC 3421 (KLR) REPUBLIC OF KENYA IN THE HIGH COURT AT ELDORET PROBATE & ADMINISTRATION 348 OF 2013 RN NYAKUNDI, J APRIL 11, 2024 IN THE MATTER OF SARAH JEPKEMOI MOSNIK .............................................................. PETITIONER RULING 1. What is pending in this matter is the distribution of the estate. The petitioner is the 2nd widow to the deceased and the Grant of Letters of Administration of the estate intestate were granted to her on 17.03.2014. Further, the same have been pending confirmation. The probate is uncontested as the application for revocation of grant dated May 7, 2015 was dismissed for want of prosecution. 2. The deceased was survived by the following beneficiaries; 1st House 1. Ruth Mosonik (Deceased) 1st Widow 2. Leah Tuwei (Deceased) 3. Daniel Kipng’eno Ruto (Deceased) 4. Willy Kipkemboi Ruto (Deceased) 5. Joseph Ruto (Deceased) 6. Sarah Maritim 7. David Kiplagat Mosonik 8. Rebecca Jepkirui Kipruto 9. Richard Kipkirui Ruto 10. Isaiah Ruto Mosonik https://new.kenyalaw.org/akn/ke/judgment/kehc/2024/3421/eng@2024-04-11 1
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11. Emily Jelagat Mosonik 2nd House 3. 1. Sarah Jepkemboi Mosonik 2nd widow 2. Eunice Jepchumba Mosonik 3. Noah Kipngetich Ruto 4. Joel Ruto Mosonik 5. Mathew Kipsang Mosonik 6. Nancy Jemeli 7. Selly Jepchirchir Mosonik 8. Irene Jemutai Mosonik 9. Erick Kipkorir The deceased left behind one property known as Moi’s BridgE/Sirikwa Block 1 (Ziwa) /447 measuring 30.08 acres. Pursuant to the directions of the court, the petitioner filed her affidavit proposing the mode of distribution as follows; The first house to get 15.04 acres to be shared among the children of Leah Tuwei (Deceased); Sarah Maritim, the wife and children of Willy Kipkemboi Ruto, David Kiplagat Mosonik, Rebecca Jepkirui Kipruto, Richard Kipkirui Ruto, Isaiah Ruto Mosonik and Emily Jelagat Mosonik in equal shares. 4. The 2nd house to get 15.04 acres which will be shared as follows; Sarah Jepkemboi Mosonik – 3 acres, Eunice Jepchumba Mosonik 0.5 acres, Noah Kipngetich Ruto – 2.51 acres, Joel Ruto Mosonik – 2.51 acres, Mathew Kipsang Mosonik –2.51 acres, Nancy Jemeli – 0.5 acres, Selly Jepchirchir Mosonik – 0.5 acres, Irene Jemutai Mosonik – 0.5 acres and Erick Kipkorir – 2.51 acres. Analysis & Determination 5. The issue for determination herein is Whether the proposed mode of distribution should be allowed 6. Distribution where the deceased was polygamous is governed by section 40 of the Law of Succession Act which states; " 1. 7. Where an intestate has married more than once under any system of law permitting polygamy, his personal and household effects and the residue of the net intestate estate shall, in the first instance, be divided among the houses according to the number of children in each house, but also adding any wife surviving him as an additional unit to the number of children." Considering a similar scenario, the Court In Re Estate of John Musambayi Katumanga – Deceased [2014] eKLR held as follows: “ 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 https://new.kenyalaw.org/akn/ke/judgment/kehc/2024/3421/eng@2024-04-11 2
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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.” 8. It follows that the property of the deceased should be distributed considering each member of the family as a unit. Further, each unit is to receive an equal share of the property. The petitioner’s’ proposed mode of distribution clearly distributes the property of the deceased unequally among the beneficiaries. https://new.kenyalaw.org/akn/ke/judgment/kehc/2024/3421/eng@2024-04-11 3
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Name of Heir Share of Estate Leah Tuwei (estate) 1.6 acres Daniel Kipng’eno Ruto (estate) 1.6 acres Willy Kipkemboi Ruto (estate) 1.6 acres Joseph Ruto (estate) 1.6 acres Sarah Maritim 1.6 acres David Kiplagat Mosonik 1.6 acres Rebecca Jepkirui Kipruto 1.6 acres Richard Kipkirui Ruto 1.6 acres Isaiah Ruto Mosonik 1.6 acres Emily Jelagat Mosonik 1.6 acres Sarah Jepkemboi Mosonik 1.6 acres Eunice Jepchumba Mosonik 1.6 acres Noah Kipngetich Ruto 1.6 acres Joel Ruto Mosonik 1.6 acres Mathew Kipsang Mosonik 1.6 acres Nancy Jemeli 1.6 acres Nancy Jemeli 1.6 acres Selly Jepchirchir Mosonik 1.6 acres Irene Jemutai Mosonik 1.6 acres Erick Kipkorir 1.6 acres 9. In the premises, I proceed to confirm the grant of letters of administration dated 17.03.2014 issued to the petitioner. The estate of the deceased shall be distributed as follows; 10. It is my considered view that this distribution is in tandem with the provisions of the Law of Succession Act. https://new.kenyalaw.org/akn/ke/judgment/kehc/2024/3421/eng@2024-04-11 4
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11. The administrators shall provide the court with the accounts of the estate after six months to confirm the distribution of the estate has been concluded. 12. It is so ordered. DELIVERED, DATED AND SIGNED AT ELDORET ON THIS 11TH DAY OF APRIL 2024 ...................................... R. NYAKUNDI JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2024/3421/eng@2024-04-11 5
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