https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11765

**REPUBLIC OF KENYA** **IN THE HIGH COURT AT ELDORET** **SUCCESSION CAUSE NO. E045 OF 2024** **IN THE MATTER OF THE ESTATE OF STEPHEN KIPLETING ARAP METO (DECEASED)** **BETWEEN** **LILY JEPKENEI METTO………………………..…………… 1ST PETITIONER** **SARAH JEPKOECH RUTO……………………..…………… 2ND PETITIONER** **ERIC KIPROTICH METTO……………………..…………… 3RD PETITIONER** **JOSIAH KIPKEMEI METTO…….…………………........... 4TH PETITIONER** **AND** **EZEKIEL KIPTANUI METTO ………………………………………. OBJECTOR** **AND** **EMILY JERONO METTO .…………….………………….......... PROTESTOR Coram: Before Justice R. Nyakundi** **M/s Bundotich Korir & Co. Advocates** **M/s J.K. Kaptich & Associates Advocates** **M/s GK Kimaiyo & Co. Advocates** **JUDGMENT** 1. What is pending before this Court for determination is a Notice of Motion Application dated 29th July 2025 seeking the following orders: 1. *Spent* 2. *THAT pending the hearing and determination of this application, there be a stay of delivery of the ruling on distribution, issuance of any Certificate of Confirmation of Grant and/or any distribution of the estate of Stephen Kipleting Arap Metto (Deceased).* 3. *THAT the Honorable Court be pleased to admit Emily Jerono Metto as a Protester, dependent and beneficiary of the estate of the deceased* 4. *THAT the Honorable Court be pleased to direct that the Applicant's protest and claim against the estate be heard and determined before any ruling on distribution or issuance of the Certificate of Confirmation of Grant.* 5. *THAT costs of this application be in the cause.* 2. The application is made on the following grounds; 3. *The matter is scheduled for delivery of the Court's ruling on distribution of the estate on 5th August 2025, which, if delivered, will irreversibly prejudice the Applicant by excluding her from the estate.* 4. *The Applicant, Emily Jerono Metto, is the deceased's youngest sister who was raised by him as a dependent from infancy and is therefore a dependent under Section 29(b) of the Law of Succession Act.* 5. *Between 1989 and 2016, while residing in the United States, the Applicant used to send the deceased some money but is materially interested in over Kshs. 500,000/=, that she sent to the deceased and which she now claims as a creditor's interest in the estate.* 6. *The Applicant has filed a protest challenging the confirmation of grant but her claim has not been considered in the proceedings leading up to the ruling hence the need for the arrest of the said ruling.* 7. *The Applicant's father, Kimetto Mararen passed on when the Applicant was around 9 months' old. She was subsequently taken in and treated as the deceased's child despite being the deceased's youngest sister.* 8. *The Protestor lived together with the 1st wife and members of the 1st family and whom she has all along known as her siblings at land parcel LR No. 10784/1 I.R 19663.* 9. *The Deceased took care of the Applicant until the year 1980 when she was married* 10. *In the year 1989, the Applicant moved to the United States of America but maintained a close connection with the deceased. During the Applicant's stay in the USA, she would occasionally send money to the deceased.* 11. *Material to this protest, the Applicant sent over Kshs. 500,000/=to the deceased around the year 2016 with the anticipation that the deceased would repay the amounts monetarily or in kind. He didn't.* 12. *The 1st family however acknowledges this debt and are intentional on having it defrayed from the estate.* 13. *Unless this Honorable Court urgently intervenes and stays the delivery of the ruling and distribution, the Applicant's protest and claim will be rendered nugatory, occasioning her irreparable loss.* 14. *It is in the interest of justice that the estate be preserved pending hearing and determination of the Applicant's protest* 15. This summons for confirmation was objected to by Ezekiel Kiptanui Metto and Emily Jerono Metto. With regard to Ezekiel Kiptanui in his affidavit dated 27th January 2025 he asserts as follows in his objection to the making of the grant of confirmation: 16. *THAT I am a male adult of sound mind having the instructions of the first family to raise this objection on their behalf hence competent to swear this affidavit in objection to the confirmation of the grant herein.* 17. *THAT I am a son to the Deceased herein, STEPHEN KIPLETING.* 18. *THAT the deceased had two wives, LILY JEPKENEI METTO and SARAH JEPKOECH RUTTO. The first family, where I come from had five children while the second had seven children.* 19. *THAT I have not been aware of the institution of these succession proceedings over the estate of my late father and only came to know through one of my siblings.* 20. *THAT a perusal of the petition for letters of intestate herein shows that I have not been included as one of the beneficiaries of the estate.* 21. *THAT the Petition, as filed, is incomplete as it has not listed all the properties that my deceased father owned. The only property listed is Land Parcel Number L.R 19663 measuring about 300 Acres.* 22. *THAT even the only listed property being Land Parcel Number L.R 19663 measuring about 300 Acres has not been apportioned to us as the rightful beneficiaries but there is a list of persons who claim to have been purchasers of the estate, which I, as are the first family, am in dispute of.* 23. *THAT I am aware that there were persons who purchased part of the land being Land Parcel Number L.R 19663 measuring about 300 Acres from my late father but not all of them that appears on the list presented in court.* 24. *THAT I am also aware that there are other purchasers who bought part of the land.* 25. *THAT I am aware that my deceased father had 17 Acres around Pipeline area within the Eldoret municipality but has not been disclosed to this court.* 26. *THAT my deceased father had residential houses at Sogomo Area, next to the University of Eldoret, which fact has also not been disclosed to this court.* 27. *THAT my late father also owned motor vehicle Registration Number KAH 525G, Isuzu Pajero and Bank Accounts at Equity Bank Limited and Family Bank Limited.* 28. *THAT one, JOSIAH KIPKEMEI METTO, from the second family has been the custodian of most of my late father’s title documents and the same have been conveniently concealed from us and from this court.* 29. *THAT furthermore, the only property disclosed to this court, being Land Parcel Number L.R 19663 measuring about 300 Acres has an existing charge from the Agricultural Finance Corporation (AFC) as appears on the encumbrance section of the Title Certificate presented to this court.* 30. *THAT it would therefore be important that the encumbrance be discharged before the same can be available for distribution by this honourable court.* 31. *THAT my mother, LILIAN CHEPKEMEI METTO, was married by my father in the year 1963 and lived together with the deceased as husband and wife.* 32. *THAT prior to the death of my father, he had made intentions of building my mother a house within his vast estate but the same was cut short by my father’s death.* 33. *THAT since then, my mother has been pushed out of the estate and has been living in a school dormitory, Mararen High School.* 34. *THAT it would therefore be important that the estate of my father be harmonized, all the properties under his name disclosed, all liabilities accounted for and the persons alleging to be purchasers of the property reconciled.* 35. *THAT I do not object to the Petitioners being the joint administrators of the estate.* 36. *THAT this affidavit has been made in good faith with a prayer that the estate of my late father be distributed justly, according to the law and to all the deserving beneficiaries.* 37. In reply to the objection raised by Ezekiel Kiptanui Metto is an affidavit sworn by Josiah Kipkemei Metto the 4th Petitioner/Respondent herein, who swore the Affidavit on his own behalf and on behalf of the 2nd Petitioner/Respondent and stated as follows: 38. *THAT I have read the Affidavit of Protest against Confirmation of grant dated 27th January 2025 (hereinafter referred to as 'Affidavit of Protest') and having understood the same and having received advice from my advocate on record, Mr G.K. Kimaiyo, I do hereby respond as follows:* 39. *THAT I can declare and do hereby declare on Oath that the Objector's Affidavit has not been brought to Court in good faith but rather with half-truths, full of malice, with immaterial facts and without any basis whatsoever.* 40. *THAT at the time of filing the said Affidavit, no Summons for Confirmation of Grant had been filed nor has been filed at this time hence the Objector ought to have been dismissed outright.* 41. *THAT the said Affidavit is fatally defective and it has not conformed with the law and procedure.* 42. *THAT I am advised by my Advocate on record that Ezekiel Kiptanui Metto does not qualify as an Objector in these proceedings. The Courts have held that:* 43. *THAT the said Ezekiel Kiptanui Metto not having lodged any objection within the period stipulated, then his Affidavit dated 27th January 2025 does not pass for an objection hence does not qualify him as an Objector in this matter.* 44. *THAT paragraph 4 and 5 of the Objector's Affidavit of Protest are full of untruths in that the Objector is included as number a. (v) in Paragraph 4 of the Affidavit in Support of Petition for Letters of Administration Intestate (Form 5 (r.7) dated 16th February 2024 and duly executed the Consent* 45. *THAT in further response to paragraph 4 and 5 of the Objector's Affidavit of Protest, The Objector is hiding the truth by not informing the Court that he did not have a national identity card at the time the succession proceedings were initiated and it took the intervention and assistance of the Petitioners and area Chief to enable him acquire a Kenya National Identity Card, something he ought to be grateful about.* 46. *THAT paragraph 6 indeed is admitted to the extent that the Petition for Letters of Administration Form P & A 80 clearly indicated in Paragraph 7 b) that there were other assets to be ascertained.* 47. *THAT paragraph 7 of the Affidavit of Protest is denied and the claim is premature at this stage of the proceedings since a Summons for Confirmation of Grant is yet to be filed to determine the rightly beneficiaries of the Estate of our deceased father.* 48. *THAT in response to the above paragraph 8 and 9 of the aforesaid Affidavit of Protest, the Objector is at liberty to assist the Administrators of the Estate of our late father to ensure that all the rightful liabilities are provided for in the best interest of our family and in the best interest of justice. However, at this point in time no such concerns have been raised against the liabilities hence the same is a wild allegation without a factual basis though the administrators are open and available to address the same should any such issue arise.* 49. *THAT in response to paragraph 10 of the Affidavit of Protest, the said parcel of land is the subject of a Court Case: ELC Cause No. 48 of 2012 Kestem Company Limited Vs. Ndala Shop Limited, Commissioner of Land and the Attorney General at the Environment and Land Court of Kenya at Eldoret which has not yet been conclusively determined. In that regard, the matter is before court hence canvasing the same in these succession proceedings would be sub judice. This Honourable Court will also note that there was a similar suit over the said parcel of Land as Civil Suit No. 137 of 2000 Kestem Company Limited Vs. Ndala Shop Limited, Commissioner of Land and the Attorney General at the High Court of Kenya at Eldoret. In view of the aforesaid, the said parcel of land has been the subject of a protracted legal battle since the year 2000 which is well over 25 years hence it is only fair and just that the same cannot be included in our father's estate at the moment and the same should await the determination of the Court.* 50. *THAT Paragraph 11 and Paragraph 12 of the Affidavit of Protest are admitted to the extent that the onus is on the Objector Ezekiel Kiptanui Metto and the 3rd Petitioner, Eric Kiprotich Metto both of whom are from the said '1st family' to avail the necessary documentation since they were the custodians of the same.* 51. *THAT Paragraph 13 of the Affidavit of Protest is admitted in so far as it refers to documents that I have herein expressly mentioned and provided except those that I have clearly stated herein above that are in the custody of the 3rd Petitioner, Eric Kiprotich Metto which he ought to produce and provide to this Honourable Court.* 52. *THAT I further confirm to the court that I have availed all such documents and information that is in my custody or which information I have knowledge about and I am readily available to facilitate and assists where necessary and where I am able to ascertain all our father's estate for equitable distribution to all rightful beneficiaries.* 53. *THAT Paragraph 14 and 15 of the Affidavit of Protest is admitted. However, I have taken initiative to pursue and obtain documents in support of the discharge of the said encumbrance and have executed documents in that regard. The process of discharge cannot proceed without the execution of documents by the 1st and 3rd Petitioner who are the mother and brother respectively of the objector, who have been reluctant to do the same. The 1st and 3rd Petitioner are required to execute documents in that regard at the Agricultural Finance Corporation (AFC) and I would be available and willing to accompany and assist them execute the said documents so that the encumbrance is discharged for purposes of distribution of the property.* 54. *THAT Paragraph 17 and 18 of the Affidavit of Protest are denied for reason that the alleged intentions to build a house are unverifiable and that the mother of the Objector, the 1st Petitioner herein has been unfairly used by the Objector and the 1st family in this case to whip emotions without a justifiable basis contrary to the principles of equity and good conscience.* 55. *THAT the claim of relocation of the 1st Petitioner to Mararen High School dormitory is mischievous since the 1st Petitioner has since the year 2003 been in uninterrupted occupation and use of her portion of land next to her eldest son, the 3rd Petitioner herein, which was designated to her by our late father. The relocation was done recently when this matter was listed for summons for confirmation of Grant to evoke sympathy and was intended to frustrate the equitable distribution of the estate of our late father.* 56. *THAT Paragraph 19 and 20 of the Affidavit of Protest is admitted in so far as we are all interested in the just and equitable distribution of the Estate of our Late father procedurally and according to law.* 57. *THAT I reiterate and agree with part of the Paragraph 21 of the Affidavit of Protest in particular on the prayer that the estate of our late father be distributed justly, according to law and to all deserving beneficiaries.* 58. *THAT the Kenya Gazette and Letters of Administration to the Estate of the deceased were lawfully and procedurally issued to the Petitioners and the same is not disputed and the matter ought to proceed to confirmation and distribution of the estate of the deceased lawfully and procedurally for the benefit of all rightful beneficiaries.* 59. *THAT it is glaringly clear that the Affidavit of Protest herein lacks merit, is also unknown to law and an abuse of the court process and should be dismissed with costs to the 2nd and 4th Petitioner.* 60. *THAT I swear this affidavit in support of opposing the Affidavit of protest against confirmation of grant contending that the same has been brought in bad faith, it is malicious, baseless and discloses no grounds at all to warrant granting on any orders sought therein and therefore the same must fail and be dismissed with costs to me.* 61. *THAT I further swear this Affidavit in support of the just, equitable and expeditious disposal of this matter and humbly pray that this Honourable Court do grant the following prayers, that: i. The parties agree and appoint a Land Surveyor to ascertain acreage of land parcels herein in issue and in particular Land Reference Number 10784/1 to determine the actual occupation and status on the ground. ii. The Land Surveyor to determine the acreage remaining after providing for all the liabilities in respect of Land Reference Number 10784/1. iii. The Objector EZEKIEL KIPTANUI METTO and the 3rd Petitioner, ERIC KIPROTICH METTO be compelled to provide ownership and related documents for the Ziwa Plot belonging to our father, the deceased herein. iv. The 3rd Petitioner, ERIC KIPROTICH METTO who was a Director of Kestem Company Limited jointly with our late father be directed to provide to the Honourable Court title documents, and current status of said parcel of land measuring approximately sixteen (16) acres in so far as the same relate to the Estate of our late father. v. The 3rd Petitioner, ERIC KIPROTICH METTO on behalf of the said '1st Family' to provide particulars of our father's car of Registration Number KAH which was at some point held at Equity Bank as alleged by the Objector. vi. All the beneficiaries to ensure that our father's MARAREN HIGH SCHOOL be provided for with Eight Decimal Five (8.5) acres as was the wish of our father and that the current and actual occupation of the school on the ground should not be interfered with until this matter is concluded and determined. vii. The objector and all the other beneficiaries to amicably agree to the just and equitable distribution of the Estate of our late father procedurally and according to law and to execute all such documents as may be required.* 62. *THAT all the prayers sought herein above by the 4th Petitioner are brought in good faith, of good intention and are for the just and equitable distribution of the Estate of our later father expeditiously and judicially* 63. The Application is grounded on the annexed affidavit dated 29th July 2025 sworn by Emily Jerono Metto who deponed as follows on oath: 1. *THAT I am Protestor/Applicant herein hence competent to swear this affidavit.* 2. *THAT I do note that this matter is scheduled for delivery of the Court's ruling on distribution of the estate on 5th August 2025, which, if delivered, will irreversibly prejudice me by excluding my interest in the estate.* 3. *THAT I am the deceased's youngest sister as I was raised by him as a dependent from infancy and I am therefore a dependent under section 29(b) of the Law of Succession Act.* 4. *THAT between 1989 and 2016, while residing in the United States, I used to send the deceased some money but I am materially interested in over Kshs. 500,000/=, that I sent to my deceased brother and which I now claim as a creditor's interest in the estate* 5. *THAT I have filed a protest challenging the confirmation of grant but my claim has not been considered in the proceedings leading up to the ruling hence the need for the arrest of the said ruling.* 6. *THAT my father, Kimetto Mararen passed on when I was around 9 months' old. I was subsequently taken in and treated as the deceased's child despite being the deceased's youngest sister.* 7. *THAT I lived together with the 1st wife whom I regard as my mother and members of the 1st family and whom I have all along known as my siblings at land parcel LR No.10784/1 I.R 19663.* 8. *THAT the Deceased took care of me until the year 1980 when I was married off.* 9. *THAT in the year 1989, I moved to the United States of America but maintained a close connection with the deceased. During my stay in the USA, I would occasionally send money to the deceased.* 10. *THAT material to this protest, I sent over Kshs. 500,000/= to the deceased around the year 2016 with the anticipation that the deceased would repay the amounts monetarily or in kind. He didn't.* 11. *THAT the 1st family however acknowledges this debt and are intentional on having it defrayed from the estate.* 12. *THAT unless this Honorable Court urgently intervenes and stays the delivery of the ruling and distribution, my protest and claim will be rendered nugatory, occasioning myself irreparable loss. m) It is in the interest of justice that the estate be preserved pending hearing and determination of the Applicant's protest.* 64. In response to the application the Respondent by the name Sarah Јеркоеch Rutto swore an affidavit stating as follows; 65. *THAT I am Kenya adult female of sound mind and the 2nd Petitioner herein.* 66. *THAT I am the 2nd wife of the Late Stephen Kipleting Metto.* 67. *THAT I was married to the Late Stephen Kipleting Metto in the year 1984 and we lived together as husband and wife up to the time of his demise in 2019.* 68. *THAT at the time of our marriage, my co-wife, Lily Jepkenei Metto, the 1st Petitioner herein, who had bore him five children as per the Petition for letters of Administration inter alia filed herewith.* 69. *THAT upon our marriage, I took care of all the five children of the first wife until they got married.* 70. *THAT on or about the year 2002, my co-wife came back shortly after the death of his firstborn son and was settled next to his 2nd born son Eric Kiprotich Mettо, the 3rd Petitioner herein, where he has been living until recently.* 71. *THAT having lived with the late Stephen Kipleting Metto, for most of his lifetime up to the time of his death, he made it clear to me that he was the sole and absolute owner of the land in Kapsang, Ziwa, the subject matter of this succession proceedings.* 72. *THAT there was no time at all when any of my husband's siblings including the protestor herein made a claim to his property up to the time of commencement of this succession proceedings in February 2024.* 73. *THAT I was surprised that on 29th July 2025, the protestor Emily Jerono Metto, who is the lastborn sister of the deceased filed an application seeking to be included as a dependent.* 74. *THAT my husband was a generous man who settled all his three (3) brothers in Tarakwa in a land he bought for them out of his own goodwill.* 75. *THAT my late husband also supported all his three (3) sisters including the Protestor to enable them get good education without discrimination clearly aware that they were his sisters and not children or dependents.* 76. *THAT at the time of going to the United States of America, Emily Jerono Metto, was already married with three children and travelled to the United States then to join her husband who had already settled there and lived there for well over thirty five (35) years.* 77. *THAT at the time of the death of my husband in the year 2019, Emily Jerono Metto had been in the United states for well over thirty (30) years during which period he was not being supported by my husband as a dependent at all, within the meaning of Section 29(b) of the Law of succession Act.* 78. *THAT during the period of hospitalization of my husband, the protestor herein never contributed nor supported him at all, she did not attend his burial and did not even bother to check on his well-being as any caring family member would do.* 79. *THAT the Protestor herein has not even visited the grave site of his own brother, the deceased herein, nor even come home to offer his condolence to the family, in particularly to my family where my husband, the Late Stephen Kipleting Metto, is buried.* 80. *THAT at the end of the mourning period, usually forty (40) days after burial, the protestor did not join the family as is normally the practice where liabilities and creditors and any other interested persons to the estate of a deceased person are disclosed.* 81. *THAT at no time has the protestor disclosed to me nor indicated interest in the Estate of his late brother, my husband herein, other than this protest whose intentions is to frustrate distribution of the estate of the deceased.* 82. *THAT my late husband was not the sole or exclusive provider of the Protester as she was already an adult, had attained good education, was married and capable of taking care of herself especially immediately prior to the death of my husband.* 83. *THAT the protestor's application is malicious and in bad faith since she has not approached any of us to lay a claim as the same, if genuine, would have been accommodated in the same manner that other liabilities to the estate of the deceased have been disclosed in these succession proceedings.* 84. *THAT immediately prior to his death, my husband directed me to ensure that all genuine liabilities, debts or creditors to his estate are sorted out amicably so as not to invite any bad omen or curses to his children hence the reason all liabilities are disclosed except the protestors claim which is in bad faith.* 85. *THAT my mother in law was staying with his son Peter Metto immediately prior to his death but is buried in our homestead as an honor and recognition of my husband's support to his siblings and the entire family in addition to being the eldest son.* 86. *THAT what is deponed hereinabove is true and within my knowledge, save where expressed to the contrary.* 87. This application was canvassed by way of written submissions from both Counsels and in this respect learned Counsel for the Protester Mr. Rotich going through the chronology of evidence and the legal principles in the following cases; *In re-Estate of Muchai (deceased) (2004) 2KLR 447, Morogo & 3 Others vs Morogo & Another; Morogo & 2 Others(defendant) (Succession Cause E084 of 2019) (2024) KEHC 10251 (KLR) (9 August 2024 (Ruling) Re-Estate of Makara Muriuki (deceased) (2017) eKLR and Re-Estate Boniface Njeru Ngemi (deceased) (2020) eKLR* did agitate the Court to find that the Protester had paid Ksh 500,000/- to the deceased and the deceased would reimburse or compensate her in the long run. In buttressing his submissions learned Counsel went further to urge this Court to rely on the credible evidence from the 1st house which acknowledges the debt and it is willing to have the debt settled on account of the estate of the deceased. 88. In the rejoinder submissions learned Counsel Mr. Kimaiyo filed submissions dated 3rd November 2025 that the claim of reimbursement should not arise for the Protester was neither a child nor a dependent of the deceased during his lifetime. In support of his submissions placed reliance on the following provisions of the law; Thus: *Section 29(a) (b) and (c) of the Law of Succession Act, Section 3(2) of the Law of Succession Act, Section 27 of the Law of Succession Act, Rule 73 of the Probate and Administration Rules, Article 27 of the Constitution of Kenya, Article 45 of Constitution of Kenya, Section 109 of the Evidence Act Chapter 80 and Section 107(1) of the Evidence Act* in which he opined that the Protester has not discharged a burden of proof to entitle her to the assets of the deceased. 89. This litigation can be described as one which has gone full circle as the parties seems to be desirous to settle the dispute including invoking the provisions of Article 159(2) (c) of the Constitution on mediation. On 16th July 2025 the County Surveyors namely Mr. Langat and Betty Toroitich visited the locus in quo of the intestate estate in which they were to complement the Court towards a tailored distribution matrix within the letter and spirit of the Law of Succession Act. As part of the report, the following parameter was covered: Land occupied by the family members was equally picked and mapped including homesteads swampy areas, arable area and rocky areas. Thus the summary of occupation status of the family members is as follows: | | | | | | | --- | --- | --- | --- | --- | | **Heir Name** | **Arable Area (Acres)** | **Homestead (Acres)** | **Rocky Area (Acres)** | **Total Share (Acres)** | | Timon Kiprop Metto | 11.95 | 1.29 | 0.32 | 13.56 | | Ezekiel Kiptanui Metto | 11.30 | 0.62 | 0.28 | 12.20 | | Erick Kiprotich Metto | 15.34 | 2.67 | - | 18.01 | | Hillary Kipchumba Metto | 17.65 | - | - | 17.65 | | Josiah Kipkemei | 2.71 | - | - | 2.71 | | Sarah Jepkoech Rutto | 7.81 | 3.01 | - | 10.82 | | Daniel Kiprono Metto | 5.25 | 0.25 | 0.93 | 6.43 | **In Summary** Total Arable Land 72.01 Acres Rocky 7.03 Acres Swampy 12.49 Acres Road 6.44 Acres Homestead 7.8 Acres Total Acreage 105.81 Acres Liabilities 159.19 Acres **Grand Total 265 Acres** 1. Before the protest, summons for confirmation of grant had been filed dated 8th May 2025 in which the Administrators Lily Jepkenei Ruto, Sarah Jepkoech Ruto, Eric Kiprotich Metto and Josiah Kipkemei Metto in which they proposed that the estate be distributed as follows: | | | | | --- | --- | --- | | **NAME** | **ID NO.** | **RELATIONSHIP TO THE DECEASED** | | **a. Lily Jepkenei Metto** | 7137007 | **1ST WIFE** | | I. Ruth Chepngetich Metto | 6294692 | Daughter | | Ii. Timon Kiprop Metto | DECEASED | Son | | Iii. Peris Jepkorir Meto | DECEASED | Daughter | | Iv. Eric Kiprotich Metto | 11792834 | Son | | V. Ezekiel Kiptanui Metto | | Son | | **B. Sarah Jepkoech Rutto** | 6846214 | **2ND WIFE** | | I. Daniel Kiprono Mararen | 25650632 | Son | | Ii. Hillary Kipchumba Metto | Passport No. AK0655361 | Son | | Iii. Josiah Kipkemei Metto | 28440070 | Son | | Iv. Nahashon Krixus Metto | 32721648 | Son | | V. Sheila Chebichii | 33719222 | Daughter | | Vi. Ezra Kipkosgei Metto | Passport No. AK1168844 | Son | | I. Sandra Jebet Metto | 38545283 | Daughter | That the deceased was survived by the following other dependents: | | | | | --- | --- | --- | | **NAME** | **ID NUMBER** | **DESCRIPTION** | | I. Nancy Chepchirchir Metto | | Children of the Late **Timon Kiprop Metto** | | Ii. Denis Kipkemboi Metto | | | | Iii. Andrew Kipkurui | | | | Iv. Sidney Kiptanui Maina | | Son of the Late | That identification and shares of all persons beneficially entitled to the said estate have been ascertained as follows: | | | | | | | --- | --- | --- | --- | --- | | **No.** | **Name** | **ID No.** | **Description of Property** | **Entitlement** | | | a.Lily Jepkenei Metto | 7137007 | Certificate of Title No. I.R. 19663 (Land Reference Number: 10784/1) | Approximately 102.8 Acres (To be shared equally) | | | i. Ruth Chepngetich Metto | 6294692 | | | | | ii. Nancy Chepchirchir Metto, Denis Kipkemboi Metto & Andrew Kipkurui *(For The Beneficiaries of Timon Kiprop Metto (Deceased))* | | | | | | iii. Sydney Kiptanui Maina *(For the beneficiaries of Peris Jepkorir Meto (Deceased))* | | | | | | Iv. Eric Kiprotich Metto | 11792834 | | | | | V. Ezekiel Kiptanui Metto | | | | | | B. Sarah Jepkoech Rutto | 6846214 | | | | | Vii. Daniel Kiprono Mararen | 25650632 | | | | | Viii. Hillary Kipchumba Metto | Passport No. AK0655361 | | | | | Ix. Josiah Kipkemei Metto | 28440070 | | | | | NAHASHON KRIXUS METTO | 32721648 | | | | | SHEILA CHEBICHII | 33719222 | | | | | EZRA KIPKOSGEI METTO | Passport No. AK1168844 | | | | | SANDRA JEBET METTO | 38545283 | | | | | MARAREN HIGH SCHOOL | Registration No. 441540 | | 8.0 Acres | 1. In the second phase of distribution the Administrators have taken cognizance of the liabilities to the estate in terms of shares which ought to be transmitted to the creditors Under Section 93 of the Law of Succession Act as outlined herein below: | | | | | | | --- | --- | --- | --- | --- | | **No.** | **Name** | **ID. No.** | **Description of Property** | **Entitlement** | | | Daniel Some Arap Bungei | 0138322 | Certificate Of Title No. I.R. 19663 (Land Reference Number: 10784/1) | 2.0 Acres | | | Hillary Kibet Maru | 23958059 | 4.0 Acres | | | Brenda Jelagat | 35863814 | 5.0 Acres | | | Tito Kibwambok Tisen | 3267720 | 8 Acres | | | Abraham Chirchir Maiyo | 7135496 | 0.25 Acres | | | Lazaro Kiprop | 12683523 | 3.0 Acres | | | Zacharia Kibitok Maiyo | 7135496 | 5 Acres | | | Philip Kipkemboi Kemei | 12362979 | 0.3 Acres | | | James Malakwen Kibet | 1057410 | 2.0 Acres | | | Joseph Kipngetich Rotich | 21327473 | 1.0 Acres | | | Abraham Kipkorir Kogo | 22815947 | 3.7 Acres | | | Edwin Kipkoech Kiprotich | 2990860 | 0.5 Acres | | | Joel Kemboi Koimur | 20102209 | 0.5 Acres | | | Julius Kiplagat Murei | 4900052 | 0.1 Acres | | | Philip Kiprop Kosgei | 20303632 | 10.0 Acres | | | Prisila Jelagat Talam | 12970298 | 0.2 Acres | | | Jane Chemeli Sawe | 13207634 | 1.6 Acres | | | Isaac Mutwol Chepkwony | 10948144 | 4.9 Acres | | | John Kipyego Sang | 13206793 | 1.5 Acres | | | Julius Kimutai Koech | 23604865 | 2.0 Acres | | | Emmy Jemutai Tarus | 20628210 | 3.0 Acres | | | Daniel Kipchumba Biwott | 25570011 | 0.8 Acres | | | Mary Jebet Tanui | 21364537 | 1.0 Acres | | | Lazarus Ngobei Ngejerua | 25203572 | 0.1 Acres | | | Christine Chepngetich | 11347695 | 6 Acres | | | Kibos Richard Cherop | 10376694 | 2.0 Acres | | | Samwel Kiptoo Cheramboi | 3937098 | 4.7 Acres | | | Joseph Kipkurgat Too | 8763204 | 0.6 Acres | | | Stanley Kipchirchir Rotich | 28453893 | 1.0 Acres | | | Richard Kipchirchir Mutten | 9161982 | 15 Acres | | | Emmy Chemutai Kirario | 22813205 | 1.0 Acres | | | Nereo Cheptoo Koech | 22123086 | 1.0 Acres | | | William Kiptoo Kosut | 20726577 | 1.5 Acres | | | Laurensia Kwambai | 22092390 | 0.6 Acres | | | Daniel Toroitich | 28507057 | 0.5 Acres | | | Benjamin Kiptoo Tanui | 12638516 | 0.2 Acres | | | Elijah Kiptui Rotich | 12851112 | 1.5 Acres | | | Enock Kiprotich Kosgei | 24256664 | 2.4 Acres | | | Christine Jemeli Kogo | 3254075 | 2 Acres | | | Elijah Cheruiyot | 24184304 | 1.0 Acres | | | Joseph Kiptanui Lagat | 12637548 | 1.3 Acres | | | Evaline Jepkazi Kemboi | 9161073 | 3.4 Acres | | | Mevin Kipkurgat Biwott | 38052697 | 1.0 Acres | | | Lilian Cheruto Koskei | 11220060 | 2.0 Acres | | | Gideon Bitok | 25327706 | 0.3 Acres | | | Julia Chemutai Chepkiyeng | 1279171 | 1.0 Acres | | | Basilisa Jepkemboi Chepkwony | 9870426 | 4.0 Acres | | | Paul Kipyego Marus | 1932302 | 10.8 Acres | | | Zipporah Chesang Chepsiror | 22442332 | 2.1 Acres | | | Judith Chepkoech | 28347689 | 0.2 Acres | | | Enos Kiptum Tarus | | 11.0 Acres | | | Dominic Kiprop Kemboi | | 0.5 Acres | | | Joseph Cheruiyot Kurgat | | 0.9 Acres | | | Maxwell Ekunoit | | 0.55 Acres | | | Africa Inland Church (AIC) Itigo Ziwa | | 1.5 Acres | | | Angalican Church of Kenya (ACK) St. Barnabas | | | 0.2 Acres | | | Lily Jepkenei Metto | 7137007 | Ziwa Township Commercial Plot 'L' Plan No. 78300/11/204 (Ref. No. 72300/11) | Approximately 0.0311 Hectares (Whole). To Be Held Jointly For Their Benefit And For The Benefit Of All The Other Children Of The Deceased. | | | Sarah Jepkoech Rutto | 6846214 | | | Eric Kiprotich Metto | 11792834 | | | Josiah Kipkemei Metto | 28440070 | 1. This forms the metrics upon which the Administrators urge this Court to proceed and confirm the grant of letters of administration so that the shares and inheritance rights can devolve to the rightful beneficiaries under Section 29 and 93 of the Law of Succession Act. **Legal Analysis and Decision** 1. This matter has been outstanding for some time now and when it was at the stage of confirmation a protest by Emily Jerono Metto was filed seeking recognition by this Court and an additional objection By Ezekiel Kiptanui Metto with regard to non-disclosure of the pending proceedings by the Administrators. Generally, the jurisdiction of the Probate Court is to identify the beneficiaries and the net estate to be inherited by the heirs or beneficiaries survived of the deceased. The provisions under Section 29 of the Law of Succession Act defined dependents into two categories those who automatically qualify and those who must prove financial maintenance by the deceased prior to death. The High Court of Kenya strictly interprets these provisions to ensure adequate provisions for beneficiaries. It is under this provision that a deceased’s wife, or wives, former wife and biological or adopted children automatically qualify as dependants. These beneficiaries in law do not need to proved were being maintained by the deceased. On the other hand under Section 29(b) (c) other relations must prove that they were being maintained by the deceased immediately prior to his or her death to qualify as dependants. This include: * *Parents, step-parents, and grandparents* * *Grandchildren, step-children, and children taken into the family as their own* * *Brothers, sisters, and half-siblings* 1. The question therefore is whether the Protester can be taken in as a creditor or as a dependant? It was during the hearing that oral evidence was admitted in which the Protester told the court that she had been taken in as one of the children to the deceased family at a very tender age of nine (9) years in which she was provided for on all matters to do with the welfare and best interest of the child as defined under Article 53 of the Constitution as read with the provisions of the Children’s Act. This therefore cast the standard and burden of proof on the Protester to discharge the issue of dependency and creditor at the same time within the provisions of Section 107, 108 and 109 of the Evidence Act which provides as follows: *“107 (1) Whoever desires any court to give judgment as to the legal right and liability dependant on the existence of facts which he asserts must prove that those facts exist.* *(2) When a person is bound to prove the existence of any fact it is said that the burden of proof lies with that person.* *108. The burden of proof in suit or proceeding lies on that person who would fail if no evidence at all were given on the other side.* *109. The burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence, unless it is provided by any law that proof of that fact lie on any particular person.”* 1. In Kenya therefore legally defined heirs inherit the property directly whereas those who come through dependence seeking a share of intestate estate must demonstrate that they were maintained and supported by the deceased during his lifetime absolutely. It is trite that for one to prove that he or she was legally dependent on the deceased in a court of law he or she must present cogent material evidence on existence of those facts on dependence. This may include the following: * ***Financial Records:*** *Bank statements, income tax returns (ITRs), and canceled checks showing regular financial transfers or support from the deceased.* * ***Shared Residence Proof:*** *Voter ID cards, ration cards, or utility bills at the same address to demonstrate you resided with and were supported by the deceased.* * ***Medical Records:*** *Hospital bills and prescriptions indicating the deceased provided for your healthcare, especially if you are a minor, differently-abled, or elderly.* * ***Affidavits:*** *Sworn notarized statements from local community members, neighbors, or extended family attesting that you were financially dependent on the deceased.* * ***Standard of proof:*** *The burden rests squarely on the applicant to prove on a balance of probabilities that they belonged to a protected class of dependent or spouse during the statutory period prior to death.* 1. Some of the questions which arise for the court’s consideration is to examine all of the circumstances of an application for dependant support being alleged in the litigation against the intestate estate. Key among these include what legal obligations would have been imposed on the deceased had the question of provisional support arisen during his lifetime? And secondly, what moral obligations arise between the deceased and his or her dependants as a result of society’s expectations of what a judicious person would do in the circumstances? The provisions of the Law of Succession Act under Section 26 requires an analysis of whether or not the deceased has made adequate provision for the proper support for his dependents. A court must therefore evaluate what has been given under terms of the deceased’s Will or intestacy and then determine what adequate support is in the circumstances. The definition of what constitutes adequate support is a factual inquiry based upon the circumstance of each individual case. 2. The question of dependency is both an issue of fact and law. The evidence by the Protester shall be tested within the provisions of Section 29 of the Law of Succession Act to establish whether she is a direct heir to the estate or her claim lies on dependency during the lifetime of the deceased when she was a minor or a young adult and that that dependency continues to demand sustainability after the death of the deceased. 3. The rights being claimed by the Protester does not flow from any marital union but one who was taken in by the deceased to provide the necessary support on survival rights without any evidence of adoption under the provisions of the Children’s Act. Although the evidence adduced before this Court hinged towards the Protester having grown within the surroundings of the deceased’s home and certain benefits on basic rights under the Act were provided for by the Deceased but in law such a child cannot be treated as a coparcener by birth. The very concept of a coparcener postulates the acquisition of an interest by birth. 4. This is what the law stipulates on kinship adoption as expressly stated under Section 193 and 194 of the Act *193. (1) A kinship adoption order may only be made in favour of a relative of the child. (2) The Cabinet Secretary may make regulations to give effect to this Part. Kinship Adoption. 194. (1) Before making an adoption order, the Court shall inquire into and be satisfied on evidence before it that— (a) every person whose consent is required under this Part, which consent has not been dispensed with, has consented to and understands the nature and effect of the adoption order for which the application is made; (b) in the case of a parent, the parent understands that the effect of the adoption order is to permanently deprive him or her of his or her parental rights; (c) if made, the order will be in the best interests of the child, having regard to the wishes of the understanding, and to the ability of the applicant to maintain and educate the child; (d) the applicant has not received or agreed to receive, and that no person had made or given or agreed to make or give to the applicant, any payment or other reward in consideration of the adoption; (e) any person whose consent is dispensed with on the grounds of incapacity is still incapable of giving consent at the date of making the order; (f) where the applicant is not a relative of the child, reasonable steps have been taken to inform the relatives of the child of the proposed adoption, and no relative who is capable of exercising care over the child has expressed willingness to do so; (g) both the applicant and the child have been assessed and evaluated by a duly registered adoption society in Kenya in accordance with this Act and the society’s report delivered to the Court; and (h) the Council has certified and declared the child free for adoption. (2) The Court may make an adoption order under this Part on such terms and conditions as the Court may think fit, including orders— (a) requiring the adopter, by bond or otherwise, to make such provision for the child as, in the opinion of the Court, are just and expedient; (b) directing that the child shall not be removed from the jurisdiction of the Court without leave of the Court for such period as the Court may specify; (c) requiring the adopter to accept supervision by, and advice from, an adoption society specified by the Court for such period as the Court may direct; (d) requiring the child to be brought up in accordance with a particular tradition conditional to which the consent was given; (e) requiring the adopter to furnish such security by bond or otherwise as the Court may consider fit Children 2022 566 No. 29 for the due performance of any condition that the Court may impose; or (f) in a case where the adopter is not a resident or citizen of Kenya, requiring the adopter to avail such periodic reports from a Court of competent jurisdiction or state agency responsible for matters relating to adoption in the adopter’s country of residence for such period as the Court may specify* 1. In the Law of Succession Act, a dependant who is not legally adopted or who is not a biological child such foster, mere dependant or informally raised child generally in my view has not statutory right to inherit intestate property of a deceased. It is only legally valid adoptions under the Children’s Act or any other enabling Statute can one claim full inheritance rights. There is actual statutory exclusion both in interpreting Section 29 of the Act and further there is strict limit on classes of persons who are legally heirs to the estate. I do not think that the Law of Succession Act as enacted by the Legislature in 1981 on inheritance was supposed to be an open ended cheque for any class of persons who claims some kind of support during the lifetime of the deceased and is not biological offspring, legally adopted or a spouse. In my interpretation of the letter, spirit and the ghost of the Law of Succession Act I am of the considered view that long-term dependency, emotional rearing or being housed by the deceased particularly when we are speaking about an African household which recognizes the structure of extended families accommodated as an act of humanitarian and compassionate role does not create a fictional or constructive coparcenary heirship or beneficiary rights to an intestate estate. If indeed the law was to envisage that an informal or un-solemnized moral caretaking confers rights of inheritance it will defeat the purpose and objectives of the entire spectrum of inheritance law. 2. The Protester in this case in my view does not qualify as an automatic dependant of the deceased’s estate. However under dependency, the Court is obligated to examine the evidence so far tendered by herself and her two witnesses being PW3 Philemon Metto and Jentrix Rotich. That evidence cumulatively is expected to provide the basis upon which this Court can identify the provisions made by the deceased which must not only be adequate today for the benefit of the Protester but also adequate in future. It is in that scenario that the court would determine the amount and duration of support looking at the circumstances of the Applicant or in our case the Protester. The crucial component of the definition of a dependant is that the deceased was providing support immediately before his or her death. The seminal authority for dependants support claims can be drawn from the comparative law perspective in the case of *Eckford v. Vanderwood, 2014 BCCA 261* the British Columbia Court of Appeal confirmed that: *[39] The phrase “adequate, just and equitable” is to be viewed in light of current societal norms. In determining what is adequate, just and equitable, the court must consider both legal and moral obligations. The first consideration is a testator’s legal responsibilities during his or her lifetime. Maintenance and property obligations which the law would support during the testator’s moral duties towards a spouse and children. While there is no clear legal standard by which to judge moral duties, the jurisprudence suggests that subject to such considerations as the size of the estate and the absence of circumstances that may negate such moral obligations, a testator should make provision for both a spouse and children. Tataryn recognizes that in any particular situation there may be a number of ways of dividing the assets which are adequate, just and equitable, and provided the testator has chosen an option within the range, the will should not be disturbed. Tataryn, at 823-824.* 1. What is adequate must be measured against contemporary community standards having regard to what a judicious person would do in the circumstances and one cannot ignore the economic standards of deceased in making the order of provision on maintenance. The proper test from the evidence of the Protester is to look at the situation at the time of the death of the deceased and determine whether at that time the Protester can show a special need or other special claim to establish that she was eligible as a dependent as per the Law of Succession Act. The Statute as enacted in 1981 is intended to provide for the maintenance and support for persons whom the deceased was bound to maintain. In my considered view the Protester is not a dependent child of the deceased but rather an independent child who was at one time within the African Customary Law and Culture was taken in by the deceased’s family more of a moral and humanitarian obligations other than an act to be brought within the specific requirements of law on dependency. 2. With the greatest of respect I find that the Protester does not come within the purview or intent of the Law of Succession Act. 3. On the other hand, the Objector Ezekiel Kiptanui Metto seems to be raising red flags with an attempt of invoking Section 76 of the Law of Succession Act. Just as a pointer this estate has so far Administrators appointed under Section 66 of the Act. They are required to manage and distribute the estate assets as trustees tasked also with collecting assets, settling debts and rendering accounts at the end of the day. The identification of the net estate of the deceased has never been and would be the role of the probate court. The jurisdiction of the Probate Court is well spelt out in the Law of Succession Act being to identify the beneficiaries under Section 29 and the residual estate survived of the deceased. This Court might not be in a position to answer some of the issues being alluded to by the Objector that he came to learn of the petition of making of the grant from some known persons whom he did not describe by name. It is trite law that once Administrators have been appointed and the petition for letters of administration that there is a presumption in law which can only be rebutted under Section 112 of the Evidence Act by cogent and credible evidence. That is not the case here. The counter affidavit by one of the Administrators has given an explanation on the critical issues being alluded to by the Objector. There is also prima facie evidence that the Objector has not been left out on securing inheritance rights under the law. If indeed he has been left out that is the duty of the Administrators to rectify that mistake or error on the face of the record before this Court issues a final certificate of confirmation of grant which is an ultimate decree of a Probate Court. As the final declaration to this estate shall be made shortly, the estate shall be shared equitably among the beneficiaries to the estate and the Administrators has a duty to provide a draft certificate of grant of confirmation for this Court’s endorsement as per the law established. 4. The second limb of this litigation is on the summons for confirmation of grant on the distribution of an estate in a polygamous family in Kenya is governed by Section 40 of the Law of Succession Act (Cap 160), which establishes a unit-based system divided by the number of children plus surviving wives. Key landmark rulings shaping this interpretation include [Rono v. Rono (2005)], [In re Estate of John Musambayi Katumanga (2014)], and [Ramaita v. Ramaita (2025). The provisions of the law under Section 40 of the Law of the 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 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.(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.”* *The Court in the case of Francis Mwangi Thiongo –versus- Joseph Mwangi Thiongo held as follows:* *The intention of the legislature in enacting that Section was to lay down a two step-process of division of the personal and household effects together with the residue of the net intestate estate of a polygamous person by the number of houses in proportion to the number of children and each houses’ portion as per the general rules of intestacy established under section 35 to 38 of the Act.* 1. *Rahab Njeri Kariuki v. Joyce Waruguru Kariuki & 2 Others [2016] eKLR*: Emphasized that while the number of children per house is vital, fairness and equity override rigid mathematical formulas. In *re Estate of Kungu Kiriga Ngoti [2025] eKLR:* Reaffirmed the application of Section 40, noting that prior informal allocations or gifts inter vivos by a polygamist during his lifetime influence final distribution. The Courts have reinforced the position on distribution of intestate estate in a polygamous family set up in the case of Rono vs Rono that equality does not mean necessarily mean equal shares but rather equitable distribution based on the number of children in each house. 2. The provisions of Section 40 of the Act cannot be read in isolation without the legal frame of Article 27(1) (4) of the Constitution together with Article 2(5) (6) of the same Constitution on the provisions under International Law which is part of the sources of law to be applied in circumstances to interpret the rights and fundamental freedoms. Kenya has ratified the provisions of universal declaration of human rights which inter alia provides that everyone is entitled to all the rights and freedoms set forth in this declaration, without distinction of any kind such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. More so the declaration of human rights provides that everyone has a right to own property alone as well as in association with others and no one shall be arbitrarily deprived of his or her property. In furtherance to these rights, the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) which recognizes the need to adopt specific legislation that explicitly recognizes and enforces women rights as equal to those of men. The convention further provides for the right to equal treatment for women in land and agrarian reform. It also gives women the right to ownership, acquisition, administration, management, enjoyment and disposal of property equally with men in a family. It is also on record that the International Covenant on Civil and Political Rights (ICCPR) states that rights should be recognized without discrimination including gender discrimination and expressly obligates states to ensure the rights of the covenant are applied equally to men and women. In the near home the Regional Instruments for example the African Charter on Peoples’ Rights which has also been ratified by Kenya and this endorses the need to eliminate all discrimination against women and to ensure their protection in every way as the right to property is guaranteed unless this is encroached upon on public need or interest. 3. This is in contrast to African Customary Law in which inheritance was never on an equal basis or equitably. That is how one author came to this conclusion: *“Despite being one of the most obvious questions to ask of any societal phenomenon, the question of the origin of women’s oppression is on which is rarely tackled seriously. It is of the utmost importance that we understand where this oppression comes from as on this basis the link between class society and oppression of women becomes clear. Women’s oppression is one of many forms of oppression – including racism, homophobia, gender, birth, marriage and sexism – that is created out of a society based upon the class exploration of the many for the profits of the few. With this understanding we can also develop ideas of how to fight women’s oppression more fundamentally when it comes to matters of property rights under the Matrimonial Causes Act and the Law of Succession Act which sets of laws even at the dawn of the new Constitution 2010 the issues remain blurred. Clearly this involves fighting for every reform and raising the question of women’s rights; but the basis of women’s oppression also points to its place in the class struggle for socialism.” (Underlined emphasis mine).* 1. In the case at bar, the Administrators have laid a framework on how the net estate should be shared amongst the beneficiaries as tabulated in the proposed mode cited elsewhere in this judgment. The noticeable variances from the surveyor’s report is on the totality of the residual estate survived of the deceased comprising of both Arable land being 72,01 acres, Rocky 7.03 acres, Swampy 12.49 acres, Road 6.44 acres and Homestead 7.84 acres Total Acreage 105.81 acres, Liabilities 159.19 acres Grand Total 265 Acres. 2. In Kenyan succession practice, courts do not isolate specific "rocky versus arable" land judgments into specialized standalone legal texts; rather, the distribution of uneven, rocky, or mixed agricultural land is governed by general principles of equity, viability, and equal benefit under the Law of Succession Act. When splitting estates containing both productive soil and barren rocky outcrops, Judges and Administrators apply established-case guidelines to ensure fairness. 3. How do Courts go about exercising judicial discretion on inheritance disputes grounded on similar facts like in the matter of the estate of Stephen Kipleting also known as Stephen Kipleting Arap Meto also known as Stephen Kipleting Metto: * ***Proportional Sharing:*** *Courts avoid giving one beneficiary purely rocky, unusable land while another gets all the arable soil; parcels are often vertically or horizontally configured to give each share a portion of productive land.* * ***Economic Viability:*** *Under Section 28 and general probate practice, the court considers whether a subdivision renders the land economically useless or sub-minimal under local land-use laws.* * ***Protection of Existing Homesteads:*** *Beneficiaries already occupying or developing a specific section (arable or rocky homestead) are protected from arbitrary displacement during distribution.* 1. I have always wondered why inheritance and inter-generational transmission of property rights occasions so much legal disputes from the heirs to the estate who never even contributed to its acquisition and improvement. The observation to this extent has been that inheritance seems to lend itself well to the beneficiaries/heirs to the intestate estate by focusing as a means of poverty alleviation so that the activities which will be undertaken thereafter brings to light critical points the lifetime of an individual, in lowering his or her poverty index. This Court takes judicial notice that in a multivariate analysis of our societies and data collected establishes that the amount of land and other cash receivables received and inherited from parents by the various beneficiaries as outlined under Section 29 of the Act is a significant predictor for identifying household that remained non-poor than those who continued to scavenge on enhancing the Economic, Social and Cultural Rights in their lifetime. It is also true to hold the view that a family reputation on economic and social support networks do not die with the death of the deceased for the net estate with value survived of the deceased and passed on to the next generation provides the holistic view of the family. 2. This is one intestate estate which shows that the deceased as part of his vision to alleviate poverty he sacrificed a portion of his estate during his lifetime and allocated it to an educational institution by the name Mararen High School and on matters of spirituality African Inland Church (AIC) Itigo Ziwa and Anglican Church of Kenya (ACK) St. Barnabas. 3. In sum inheritance in the context of the Law of Succession Act denotes more than a mere transfer of land/property from one person to another or from one group to another. It also defined lineage membership, genealogy and identity through time. In the African customary law and culture, the example of the naming convention at the various level of the family tree is illustrative of this conceptual framework where the property in question though transmitted legally upon the demise of the deceased remains named after the original ancestor as it passes from generation to generation of subsequent names. In this way, the transfer of land which is further developed through inheritance establishes a diverse array of relations between people and space across the spectrum of economic, social and spiritual dimensions in time. In a simplified model, one can see some of these characteristics of inheritance during the lifetime of the deceased specifically allocated some portions of his land to the religious congregations under school. The analysis of the evidence presented before this Court by the Administrators highlighted this connection holding to a great extent the transmission which had taken place of some parcels of land to the named institutions. Taken together, these key findings indicate a striking and important feature of this estate and the recognition largely given by the Administrators that embody principles and practices on inheritance that are both long established and broadly accepted. 4. In so far as the creditors are concerned, their recognition by the Administrators brings into effect the application of the doctrine on constructive trust and property inheritance rights. The Supreme Court in *Diasproperty Ltd & Anor vs Jack Kaguu Githae & 8 Others Petition E019 of 2024* affirmed that a constructive trust arises over portions of an estate sold of allocated by a deceased in their lifetime if third parties had notice of prior possession. Similarly, in the case of *Ngao v Kitheka (2024) eKLR* the Court of Appeal emphasized that long-term physical occupation and shared common intention create an enforceable trust overriding strict paper registration. What are the key core principles to bear in mind on the application of constructive trust to specific facts and circumstances of the case: *First and foremost one must get the definition right, for a constructive trust is an equitable remedy imposed by law to prevent unconscionable conduct or unjust enrichment when a legal title holder tries to deny another person their rightful beneficial interest. Secondly the constructive trust application to inheritance is invoked when a deceased person during his or her lifetime placed beneficiaries such as children or purchasers in actual possession and development of specific land portions before formal transfer or completion of succession. Thirdly, it operates within the canons of overriding interests that is actual physical occupation and continuous use of the land which creates an equitable interest that binds the legal estate and restricts arbitrary disinheritance. Fourthly, no explicit agreement needed thus constructive trusts do not require an express agreement, they arise based on the conduct or relationship between parties. Fifthly, focus on conduct, similarly constructive trust are imposed when one party’s actions indicate duty to hold property for another, often in cases of fraud, mistake or breach of duty. Sixthly, equity and fairness, in essence, constructive trusts are used to reflect equity and fairness preventing individuals from taking advantage of their legal title when others have a justifiable claim to ownership.* *(See the principles in Wachtel v Wachtel [1973] Fam. 72, 92-94, Inwards vs Baker [1965] 2 Q.B 29*, *Shah & 7 Others v Mombasa Bricks and Tiles Limited & 5 Others (2023).* 5. In a nutshell, being guided by the legal provisions under the Law of Succession Act being Section 40 of the Act, as read with Section 29 and Section 93 of the same Statute together with Article 27(1) (4) of the Constitution, I do hereby exercise discretion to make a finding that the proposed mode of transmission and devolution of the shares of the estate does fall within the interpretation of equitable distribution of the intestate estate survived of the deceased. The other limb which applies in equal measure to the liabilities which accrue from the intestate estate have ripened for the doctrine of constructive trust to apply in favour of the holders of the beneficial interest in portions of land to the intestate estate. Essentially, a surviving Widow shall have the right to an equitable share in the inheritance property of the deceased including the right to continue living in the matrimonial house or houses. As for the sons and daughters, each shall have the right to inherit in equitable shares of their father’s properties. This Court is also alive to the facts that during the lifetime of the deceased, he may have gifted Mararen High School which is an educational institution duly registered vide registration No. 441540 giving it legitimacy of rights over the intestate estate. This same measure of rights were also passed to two religious congregations being African Inland Church (AIC) Itigo Ziwa and Anglican Church of Kenya (ACK) St. Barnabas. The shares of each beneficiary have been identified in the proposed model by the Administrators and I find no greater variance under the provision of Section 38, 40 of the Law of Succession Act as interpreted with Article 27(1) (4) of the Constitution. Similarly, the Kenyan law of inheritance generally defines the estate as everything left by the deceased encompassing all assets and responsibilities related to others rights, including care and funeral expenses, creditors settlement and other liabilities with the remainder to be passed down and bequeathed to the heirs. Am also privy to the surveyor’s report classifying the net estate into arable, rocky and swampy. In my considered view, ultimately in determining the distribution of the inheritance shares there should be no differentiation for the quality of the parcel of land to be employed as a term of inheritance. It is therefore of fundamental importance that each of the heirs to the estate should share equitably both horizontally and vertically the arable and the less qualitative parcel of land. In this decision, the houses inhabited by the spouses to the deceased should continue being inhabited and included as the legacy of the deceased without trying to deconstruct those particular matrimonial homes afresh. It is also worthy to note that the surveyor has mapped in his report certain occupational rights in which the beneficiaries have done some form of permanent improvement, in this respect, the matrimonial homes or otherwise occupied by themselves or their families should be the starting point of excising the equitable shares of each member of that family. 6. In the premises, first, the intestate estate shall be distributed taking into account the basic structure of distribution modelled by the Administrators towards the issuance of the certificate of confirmation of grant in the matter of the estate of the deceased within the letter and spirit of Section 40 of the Law of Succession Act. Secondly, the assets gifted to the public utilities like the churches and Mararen High School shall retain their shares under the doctrine of constructive trust and appropriate steps be taken by the Administrators to undertake all the necessary requirements under the law for the title deed to pass to the respective organizations to crystalize their private rights to land under Article 40 of the Constitution. Thirdly, the liabilities created under the canon of creditors and/or interpretive rights under Section 93 of the Law of Succession Act as tabulated in the proposed matrix have ripened by dint of the constructive trust for the Administrators to devolve the respective shares and issuance of title deeds under the Land Registration Act of Kenya or any such Statute cognizable of the their rights to land accruing from the intestate estate of the deceased. Fourthly, the Protester’s claim by the name Emily Jerono Metto has no right of inheritance under Section 29 of the Act and hence the prayer for her recognition is dismissed for want of merit. On matters being raised by the Objector Ezekiel Kiptanui Metto, he has an opportunity to address it with the Administrators within the scheme of distribution as there is credible evidence that he has been allocated a share of the estate. In a nutshell, the Administrators shall extract and draw a draft certificate of confirmation of grant for purposes of endorsement and seal by this Court as a decree for transmission of the shares to the respective beneficiaries and creditors in the matrix annexed to the summons of confirmation and with any rectifications to crystalize the rights of the parties. As this is a family matter, I make no orders as to costs. **DATED, SIGNED AND DELIVERED THIS 28TH DAY OF JULY 2026.** **…………………………………….** **R. NYAKUNDI** **JUDGE**