Mary Gesare Osoro v Everlyne Chesomek Kiptot [2013] KEHC 1920 (KLR)
- Court
- High Court of Kenya
- Case number
- 1920
- Citation
- [2013] KEHC 1920 (KLR)
- Decided
- 10 October 2013
The applicant is not a widow of the deceased and therefore not entitled to the remedy provided by section 26 of the Law of Succession Act. The children, Brian Onkoba and Quintin Orina, are children of the deceased and are entitled to a share in the estate.
Facts
The applicant Mary Gesare Osoro claimed to be a widow of the deceased Thomas Mong’are Mong’are, who died in 2004. She alleged that she and the deceased had a customary marriage in 1988 and had two children. The respondent Everlyne Chesomek Kiptot, the deceased’s second wife, excluded the applicant from the estate and filed the cause without her involvement.
Issues
- Whether the applicant is a widow of the deceased
- Whether the applicant’s children are children of the deceased
Reasoning
The court found that there was no evidence of a customary marriage between the applicant and the deceased, and that the applicant did not cohabit with the deceased for a prolonged period. The children were found to be children of the deceased based on birth certificates and a consent order.
Outcome
The applicant is not entitled to the remedy provided by section 26 of the Law of Succession Act. The children are entitled to a share in the estate.
Orders
- The applicant is not a widow of the deceased and therefore not entitled to the remedy provided by section 26 of the Law of Succession Act.
- Brian Onkoba and Quintin Orina are children of the deceased and they shall be provided for from the intestate estate of the deceased.
- Brian Onkoba and Quintin Orina shall be entered into the list of the survivors of the deceased.
- The administrators are hereby directed to provide for the two, that is to say Brian Onkoba and Quintin Orina, in the distribution of the estate of the deceased during the confirmation of the grant.
- Costs shall be in the cause.
Remedies
- Reasonable provision for the applicant and her children out of the estate of the deceased
Authorities cited
Legislation (1)
- Law of Succession Act
Cases cited (1)
- Hortensia Wanjiku Yawe vs. Public Trustee
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