• Though not on merit, the leave for appeal was denied by appellate judge Francis Tuiyot because the appellants’ motion was late.
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It is now firmed up that if a marriage breaks and the woman remarries, only the children from the first marriage can inherit a share of the former husband’s property.
A Kisumu court rebuffed an application to file an appeal that sought to challenge a High Court ruling in succession cases where children from different marriages locked horns in the division of their late father's properties.
Though not on merit, the leave for appeal was denied by appellate judge Francis Tuiyot because the appellants’ motion was late.
In 2015, Andrew Robert Ochung lodged a succession case for the estate of his father Samuel Dan Ochung, who died on August 18, 1999.
But as court papers show, Andrew was not forthright in his filing, as he indicated Pamela Atieno Wanjare and Anne Akinyi Omugo as the only surviving beneficiaries. He was issued with the grant.
But shortly thereafter, Terry Maureen Ochung filed summons for the annulment of the grant, on the basis that Andrew had failed to name six other siblings as beneficiaries.
“Instead of proceeding with the application for the annulment of the grant, the parties decided that it was better to explore an amicable resolution on the issue concerning the distribution of the estate,” the 2019 judgment by judge Fred Ochieng’ reads.
But another man, claiming to be the son of the deceased, filed an affidavit of protest indicating that the old man had two households.
Court papers show that Samuel Dan Ochung had married Teresa Okuku, with whom he had three children, before their union ended.
She then remarried and in the second marriage, she had five more children. The affidavit of protest had demanded that all eight from the former wife be considered in the succession.
Samuel also remarried and had nine children.
The court recognised only three children from the first marriage and ordered that the five the former wife got after she remarried should not be considered in the division of property.
“Having re-evaluated the evidence on record, I find that it is only three children who Teresa got with Samuel. I further find that the marriage between Teresa and Samuel broke down irretrievably, and that Teresa re-married thereafter,” the judgment reads.
“After the marriage had broken down, Samuel married Peres Dolly Awino. All eight children of the union between Samuel and Peres are beneficiaries of the estate of Samuel. However, the children who Teresa got after she got married to a man other than Samuel, are not the beneficiaries of Samuel.”
The court added that it was “a misnomer to refer to those children as being a part of the first family, when their father is not Samuel.”
“The fact that Teresa was the mother of those five children did not make them the offspring of Samuel.”
“… When a person asserts that he or she was a beneficiary, yet he or she was not the biological child of the deceased, the said person must adduce evidence to satisfy the court about the said assertion. In this case, there was no evidence provided to the court to prove that Wilfred, Argwings, Susan, Andrew and James were beneficiaries of the estate of Samuel.”
The properties to be shared are three parcels of land in Kisumu. Two others are still under questionable ownership and the court has stopped any consideration for their sharing.
The notice of motion to appeal the decision was filed by aggrieved siblings on June 3, 2022.
They explained the delay in the filings, that they lost touch with their advocate on record and that the Covid-19 pandemic occasioned the lateness.