https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12552

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT ELDAMA RAVINE (SUB-REGISTRY)** **SUCCESSION CAUSE NO. E010 OF 2025** **IN THE MATTER OF THE ESTATE OF KIPKOSKEI KURERE KIPKOSKE ALIAS KIPKOSKEI KURERE KIPKOSKEI (DECEASED)** BENSON KIPLAGAT KOSGEI………. …………..… OBJECTOR/APPLICANT **VERSUS** MUSA KOSGEI………………….……..…….1ST PETITIONER/RESPONDENT KIPKURUI LABOTT ………………………..2ND PETITIONER/RESPONDENT **RULING** 1. Kipkoskei Arap Kurere died on 16/8/2002 at the age of 72 years old. 2. According to the letter from the chief Kabimoi Location dated 4/9/2025 he was buried at his farm Lembus/Kabimoi/197. He was survived by the following:- 3. Margaret Kongato Labott Widow 4. Rosaline Kabon Labott Widow 5. Zipporah Kosgei Daughter 6. Miriam Kosgei Daughter 7. Liza Labott Daughter 8. Dorothy Kosgei Daughter 9. Musa Kosgei Son 10. Kipkurui Labott Son 11. Everlyne Kosgei Daughter 12. Abdalla Kosgei Son (Deceased) 13. Sharon Kosgei Daughter (Deceased) 14. Daudi Kosgei Son 15. Vicody Kosgei Daughter 16. Fredrick Kosgei Son 17. Jemeli Kosgei Daughter 18. These are the same in the form P & A 5 dated 8/10/2025, which also sets out the sole property of the estate Lembus/Kabimoi/197. 19. On 29/8/2025 the family agreed that **Musa Kosgei and Kipkurui Labott** would be the Administrators – they filed this cause vide petition dated 8/10/2025. The grant was made to both on 18/5/2026. 20. By an application Notice of Motion brought under section 47 of the LAW OF SUCCESSION ACT and Rule 73 of the P & A Rules, Benson Kiplagat Kosgei seeks orders *‘inter alia’* ***THAT pending the hearing and determination of the Succession Cause, this Honourable Court be pleased to order that the status quo obtaining on the suit property be maintained, that is that the objector/applicant to continue to live, cultivate farm, graze livestock over a portion four(4) acres forming part of the L.R NO. LEMBUS/KABIMOl/197 where the applicant has been occupying, utilizing and farming for all these years during the lifetime of Kipkoskei Kurere Kipkoskei alias Kipkoskei Kurere Kipkoskei(deceased) and for the applicant to have exclusive possession and occupation of such four( 4) acres of and over suit property above. THAT the OCS Eldama Ravine and OCPD Eldama Ravine do maintain law and order on the suit property L.R NO. LEMBUS/KABIMOI/197 to ensure that law and order prevails.*** ***THAT costs be in the cause.*** 1. The application is supported by the grounds on its face in the supporting affidavit. Sworn on 14/5/2026. The main grounds are that:- ***THAT I am a lawful dependant of the deceased within the meaning of Section 29 of the Law of Succession Act having been taken in and raised by the deceased(his grandparents) as a member of their immediate family and the deceased were responsible for my upbringing, maintenance and education from childhood. I was therefore wholly dependent on the deceased prior to the deceased demise and i therefore qualify for protection by this Honourable Court.*** ***THAT I am advised by my advocate on record which advise I verily believe it to be true that Section 29 of the Act provides, inter alia, that: - "29. For the purposes of this part, "dependant" means " ............ (b) Such of the deceased's parents, step-parents, grandparents, grandchildren, step-children, children whom the deceased had taken into his family as his own, brothers and sisters, and half-brothers and half-sisters, as were being maintained by the deceased immediately prior to his death; .... " ............ From the foregoing, a dependant under Section 29 (b) and ( c) must prove that he or she was being maintained by the deceased immediately prior to his demise. It is not the mere relationship that matters, but proof of dependency that counts .......... "*** 1. He claims that the deceased in his life time settled him on a defined portion of his estate measuring 3 Acres. That – ***“11. THAT I derive my livelihood and sustenance from the said land and eviction or inference with my possession would occasion grave hardship, irreparable loss and render myself destitute contrary to principles of equity and justice underpinning succession law.*** ***12. THAT there exists a real and imminent threat of interference, eviction, or dispossession of myself by other parties to the succession cause which actions, if not restrained, would amount to unlawful intermeddling with the estate contrary to Section 45 of the Law of Succession Act and would defeat the ends of justice.”*** 1. Annexed to his affidavit are the affidavits of his mother, his grandmother, his father in-law, his wife, and a pastor. He also annexed photos of a permanent house saying it was his house. He has annexed a certificate of birth bearing the names of his grandfather, the deceased, and his wife (the grandmother). He avers that there was a customary adoption that elevated him from a grandson to the status of a son – but more importantly that he was given 4 acres of land – and seeks from this court orders of “Status Quo ante” 2. The application is opposed by the Petitioners. It is not denied that the applicant is a grandson and that his biological mother is a beneficiary of the estate of the deceased. 3. That the certificate of birth was obtained in 2017, yet deceased died in 2002. It is denied that he resides on the alleged portion of land. His mother has also sworn an affidavit denouncing his actions. She depones that he knows his own father one Joseph Koech (deceased). 4. The applicant has filed a Supplementary Affidavit – reiterating that he is seeking from this court consideration that he is a dependant of the estate. 5. The application was argued orally. 6. Mr Arusei for applicant counsel submitted that the applicant is 48 years old, has lived, occupied and farmed on some 4 Acres of land since he was of the age of majority. That trouble just began when he filed a citation, that he cited the petitioners who filed this petition. That because he filed an objection, he was thrown out of the said parcel of land. I was referred to **Githae Njoka Civil Appeal No. 9/2019 [2024] KEHC** and **Ougo & Anor vs Otieno [1987] KLR 364.** 7. It is argued that there is conflict of facts and therefore this court should allow the status quo ante to remain - that Petitioners still have 80 Acres of land to distribute. 8. Mr Kitolel for the Petitioners submits that the mother of the applicant is alive and is the beneficiary to the deceased’s estate that the applicant will inherit through his mother. He submits that the certificate of birth is suspect, that the applicants mother does not support his claim, that permanent house in the photos filed by the applicant does not belong to the applicant but to the grandmother and giving him the orders will create the impression that the applicant is entitled – that there are other grandchildren of the deceased who could also lay claim to the estate – that under section 29 of the Law Of Succession Act– other persons can also come to claim. That the applicant’s affidavit is an act of perjury. I was referred to **Nakuru Re Estate of Kibowen Succ Cause 500/1997** about inheritance by grandchildren through their parents. 9. It was argued by Mr Arusei that the authority was distinguishable. The court was urged to read section 29(b), (c) of the Law Of Succession Act as a whole ,Article 27 of the Constitution on nondiscrimination. 10. I have carefully considered the application, the Rival affidavits and submissions by counsel. 11. This application is brought under part III of the Law Of Succession Act- the one that provides for dependants. The applicant relies on sections 26, 28 & 29 of the Law Of Succession Act. The applicant has taken the position that though his mother is a daughter of the deceased and the direct beneficiary – the deceased elevated him to the level of a son. He presents before court a certificate of birth and bundle of affidavits made under Cap 15 *“In the matter of confirmation of the Parental Representation during Customary Engagement*. Another, *“In the matter of Benson Kiplagat Kosgei” Affidavit of dependency”.*Another ***“****In the matter of Benson Kiplagat Kosgei. In the matter of confirmation of customary Adoption and dependency****”*** 12. Whether or not the applicant was adopted by the deceased as his son is a contested issue. The court has before it 2 rival affidavits said to have emanated from his mother, the latter one stating that she did not support his claim, and that his claim is unfounded. The certificate of birth was obtained long after the deceased died, and the applicant lied in his affidavit that the permanent structure in the photo he presented is his house knowing too well it is his grandmother’s house. 13. Section 27 of the Law of Succession Act gives the court the discretion to provide for a dependent. 14. The applicant has cited authorities on estopped – that a party is prevented from denying a state of affairs which they previously accepted/represented to be to true 15. The question is – what is this state of affairs that the applicant wants status quo, and respondents are estopped from denying? 16. There is nothing before me to show that the applicant occupied, farmed, depended on 3 or 4 acres of the estate of the deceased. Except for photos – whose truthfulness is doubtful – the applicant has not shown the court anything to support the alleged position. Nothing from the deceased person to show that he had been allocated 3 or 4 acres of land. 30 years is a long time – of his claim that he had been using that parcel of land since he came of the age of majority – there would be something more than just a claim. 17. Secondly the status upon which he says the deceased elevated him to is dependent on the evidence of his mother – In this matter the 2 affidavits standing side to side – one saying this, the other saying that – hence even the alleged status – that the applicant is standing on to make this claim is shaking as that leaves him into the grounded support he claims he has that raises him above all the other grandchildren. 18. According to the law he has cited, dependency must be established – that he “was being maintained by the deceased immediately prior to the death of the deceased”. 19. Deceased died in 2002. The applicant has not demonstrated how the deceased maintained him in 2001 and there before i.e., 24 years ago. In any event under section 27, the dependent cannot choose the share of the estate; in addition – section 26 speaks of the situation where the dependent has established dependency and had not been provide for. The law does not envisage a dependent who comes with a specific claim to a specific share of the estate – that is not a claim in dependency – that is a claim of entitlement to a specific share of the estate. 20. That in my view cannot be an issue raised before the distribution of the estate – The issue of claim of dependency will only arise where the alleged dependent has not been provided for in the distribution of the estate – there the dependent gets the opportunity to give evidence to prove his dependency, and to the degree of dependency. 21. A specific claim to a specific share will require more – it can only be heard when the court is proceeding under section 71 of the LAW OF SUCCESSION ACT. 22. In my considered view the applicant need to have a prima facie case with a degree of success in order to get the kind of orders he is seeking. 23. He has not established that – and all the issues he is raising and all the witnesses he has lined up – will be heard when the issue of distribution of the estate is dealt with. 24. The applicant’s mother is a beneficiary of the estate – she is the one person who can assist the court together with her siblings to determine the applicants claim – her testimony will be valuable at that time. 25. As at this stage I find that the application is not only pre-mature, but untenable. 26. The application is dismissed with costs to the estate **RULING** dated, signed and delivered virtually at Kabarnet High Court this 31st July 2026. **MUMBUA T MATHEKA** **JUDGE** **In the presence of**:- Ms Kipkemoi holding brief for Mr. Arusei for the applicant. Mr. Kitolel for Petitioners Momanyi/Gladys Court Assistants *(Correct version uploaded on 3rd August 2026)*