https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12028

In re Estate of Cheptaki - Deceased (Succession Cause E015 of 2022) [2026] KEHC 12028 (KLR) (29 July 2026) (Judgment) Neutral citation: [2026] KEHC 12028 (KLR) Republic of Kenya In the High Court at Kapenguria Succession Cause E015 of 2022 RPV Wendoh, J July 29, 2026 IN THE MATTER OF THE ESTATE OF MATAYO PKERKER CHEPTAKI – DECEASED Between Emily Chpkemoi Cheptaki Administrator and Philip Loktai Alomai 1st Protestor Chepocheptatuw Lokrwaren 2nd Protestor Mary Jackson 3rd Protestor Chepohu Alomai 4th Protestor Benjamin Sengenge'e Alomai 5th Protestor Judgment 1.This case relates to the Estate of Matayo Pkerker Cheptaki (the deceased) who died intestate on 21/12/2007 at Psigirio Sub-location in West Pokot. 2.The deceased’s estate comprises West Pokot/Keringet A/417 (48.1845 acres); cattle and a plot at the market. 3.By a grant of Letters of Administration, dated 13/9/2023, Emily Chepkemoi Cheptaki and Philip Loktari Alomai were appointed as Administrators of the deceased’s estate. 4.On 13/8/2024, Emily Chepkemoi Cheptaki, the 1st Petitioner filed the Summons for Confirmation of Grant seeking orders that the Grant of Letters of Administration intestate made to Emily Chepkemoi Cheptaki and Philip Loktari Alomai on 13/9/2022 be confirmed. She proposed that the deceased’s estate be confirmed as per paragraph (5) five of her Affidavit dated 13/8/2023 as follows: -1.Land Parcel West Pokot /Keringet A 417 19.5 HA (48.1845 Acres) be distributed as:-1.Musa Pkomun Alomai (deceased) – 10 acres - Son2.Mark Ruto – 10 acres - Son3.Philip Loktari Alomai – 10 acres - Son4.Jackson Chepsi Alomai – 10 acres - Son5.Emily Chepkemoi – 2 acres - Daughter6.Lucia Chenangat Cheptaki – 2 acres - Daughter7.Cheptangat Matayo Alomai -4.1845 acres - WidoW2.A share of Pokot measuring 50 ft X 100 ft (0.11 Acres) out of 4.1845 is to be allocated to James Yego. 5.The 2nd Administrator Philip Loktari did not agree with Emily’s proposed distribution and filed an affidavit of protest dated 23/9/2024. He proposed that the land be shared equally between the two houses.Directions were taken, that the Protest do proceed by way of viva voce evidence. The Protestor Philip Loktari called two witnesses while the 1st Administrator (Emily) called a total of six (6) witnesses. Protestor’s Case 6.PW1 Philip Loktari Alomai adopted his witness statement dated 26/8/2025, as his evidence in Chief. In his affidavit in Chief, Philip shared that the proposed distribution by Emily had left out some beneficiaries because the deceased had two wives, the first being Cheporo Matayo who died on 26/11/2008; that she had five children namely;(i)Simeon Alomai (deceased) but left two wives and eleven children;(ii)Christopher Platon Alomai – deceased but left behind three wives;(iii)Esther Chepo Cheptaki deceased’s daughter who lives in her home but has no children;(iv)Jackson Alomai (deceased) but left a wife and two children;(v)Philip Alomai – 1st Administrator proposed. 7.He exhibited the Chief’s letter dated 29/5/2023 which indicates that the deceased had two wives and listed the children. PW1 further deponed that the 2nd wife Cheptangat Matayo has four children.(i)Musa Alomai (deceased) had wife and ten children;(ii)Margaret Chepkemoi Cheptaki alias Emily the 1st Administrator;(iii)Lucia Chenangat Alomai;(iv)Mark Ruto Alomai. 8.In his witness statement, PW1 stated that his father and mother and his older siblings lived at Chepareria and in 1948, moved to Murkwijit with their three elder siblings but him and Jackson were born in Murkwijit; that the father married the second wife in 1957 and both mothers shared the same house peacefully till his mother was built another house; that when they became of age, the father pointed out where each would put up a house except the girls who were married; that his mother had been visiting his brothers who had settled in Lelan and she opted to remain there from 1980; that Lewarwik lived at Chepareria and when he died, his children went to live with the maternal uncles. 9.In cross examination PW1 admitted that the deceased had called for a meeting to distribute his land and asked each son to avail money Kshs 15,000/= for survey but the deceased died before money was paid. He also denied that it was resolved that Emily and Lucia get two acres of land each. 10.PW2 Vincent Kolopo Makilap, a resident of Murkwijit adopted his statement dated 26/8/2025 as evidence in Chief. He stated that he knew the deceased well since he was a young boy and that he was a neighbour separated by a tarmac Road; that deceased came to Murkwijit about 1948; that he arrived there with cattle and his four children, Simeon, Christopher, Esther and Jackson and their mother; A house was built; that the deceased married his second wife in 1957; that the second wife lived in the 1st wife’s house; that later, the deceased built another house where the first wife moved on one side of the farm while the 2nd wife remained in the first house; In cross examination, he admitted that he also knew Cheptangat’s three children, Margaret, Lucia and Mark. The Petitioners case. 11.DW1 Rebecca Cheptangat alias Cheptangat Matayo Alomai in her further Affidavit dated 25/12/2025 stated that she got married to the deceased in 1956 under Pokot customary law; that she had four children with the deceased namely, Musa Pkumon Cheptaki (deceased), Emily Chepkemoi Cheptaki – 1st Administrator, Lucia Chenangat Cheptaki and Mark Too; that Philip Loktari and Jackson are the deceased’s children with Cheporo who was the widow of Lowaruk; that their mother abandoned them and she raised them; that on 9/7/2005 the deceased called a meeting with the elders and the sole agenda of the meeting was subdivision of the land parcel West Pokot /Keringet A/417. He agreed with the proposed distribution but they refused to pay; she named the elders present at the meeting; that since the deceased’s death PW1 has refused to honour the deceased wishes expressed on 9/7/2005 and has prevented the implementation of the subdivision. She prays that that the deceased’s estate be distributed according to his wishes. DW1 testified that Simeon, Esther and Christopher were Lowaruk’s children. She denied knowing why Simeon was buried in Murkwijit, but later stated that it is because his home was on a hill. She said that Lowaruki was deceased’s brother and she does not know why deceased brought up Lowaruk’s children. She denied knowing Cheporo but only heard of her. 12.DW2 Symon Pkurket swore a further affidavit dated 26/11/2025 in which he confirmed knowing the deceased and that on 9/7/2005, the deceased invited him and nine other elders to his home to witness the sub-division of his land West Pokot/Keringet. He said the deceased made the proposal as per Emily’s proposal. He said that by the time the deceased died, the land had not yet been distributed. He did not know if deceased had another wife before. 13.DW3 Julius Mosop Ruto also recorded a further affidavit dated 26/11/2025 in which he claimed to have attended a meeting at the deceased’s home; that the deceased’s intention was to distribute his land which he did to four sons and daughters. He said that DW1 was in the home at the time. 14.DW4 Mark Ruto also swore further affidavit dated 26/11/2025, in which he stated that he is the last born son of the deceased; He was aware of the meeting called by the deceased on 9/7/2005 in which the deceased distributed his land as per the 1st petitioners affidavit; that the deceased died intestate on 21/12/2005 and soon thereafter the protestor took exclusive control of all the deceased’s property of 48.18 acres. 15.That since 2010, the Protestor has been in total control of the suit land to the exclusion of the Respondents. He agreed with PW1’s proposal on distribution. He said that the deceased had told each of the beneficiaries should give 15,000/= each and nothing should be done on the land. DW4 said that when PW1 chased them from the land in 2010, they did not report anywhere. 16.DW5 Samson Pkew Toilem also recorded the further affidavit. He stated that he was the Secretary of the meeting and recorded the minutes of 9/7/2005. He said there was some dispute on the use of the land and that is why the meeting was called and he recorded the wishes of the deceased, that the deceased required each of the sons to give 15,000/= before getting the land but the sons had not complied by the time of deceased’s death. Protestors’ Submissions 17.DW6 Emily Chepkemoi Cheptaki is the 1st Administrator. She recalled being present at their home on 9/7/2005 when elders were invited by the deceased to be witnesses to the distribution of his land. She agreed with the distribution proposed by her mother DW1. 18.Both parties filed their respective submissions. Kiarie Advocates, Counsel for the protestor, in their submission dated 10/6/2026, identified, five issues for determination.(a)Whether the deceased Matayo Cheporo was the deceased’s first wife;(b)Whether Simon Alomei, Christopher Alomai and Esther Chepo Cheptaki qualify as beneficiaries /dependents of the deceased’s estate;(c)Whether the minutes of the meeting of 9/7/2005 could be implemented as the estate’s mode of distribution;(d)Whether the 1st Administrator mode of distribution is enforceable;(e)Whether the protestors mode of distribution is tenable. 19.On the first issue, whether Cheporo was the first wife, it was submitted that PW1’s testimony that the deceased moved to Murkwijit in 1948 with four children and built a house for the first wife and that later the deceased married Cheptangat was corroborated by PW2 and the same has not been dislodged by the testimonies of DW1 Cheptangat, DW4 Ruto or DW6 Emily and that the allegations by the 1st Administrator in her affidavit of 13/9/2024 remain mere allegations. 20.On the second issue, whether Simeon Alomai, Christopher Platan Alomai and Esther Chepo Chetaki qualify as beneficiaries of the deceased;The protestor’s position is that the above three, Simon, Christopher and Esther are children of the deceased and his mother Cheporo but the 1st Administrator in the Affidavit dated 13/12/2024 paragraph 7 stated that the three are children of Liwaruk, a brother to the deceased and Cheporo and that the deceased inherited the brother’s wife and they brought forth the protestor Philip and one Jackson Chepsi. It was submitted in view of the definition of a dependant in Section 29 of the Laws of Succession Act, the threee qualify as the deceased’s dependants. 21.Whether the minutes of 9/7/2005 should be implemented as the deceased’s mode of distribution; Counsel submitted that as per the minutes, the land was to be shared amongst his four sons; that since the sons did not meet the condition of contributing 15,000/= towards Survey, the same was overtaken by events and cannot be implemented as the mode of distribution. 22.Whether the 1st Administrator’s proposed mode of distribution should be enforced: - it was submitted that the proposal is discriminatory because whereas the 1st Administrator makes provision for her deceased brother Musa Alomai, the 1st houses children are left out; That the proposal by the 1st Administrator is not what was agreed upon in the meeting of 9/7/2005 because in that meeting, only four sons were to get land. 23.Whether the protestors proposal is tenable? It was submitted that the proposal accords with section 40 of the Laws of Succession Act. The 1st Petitioners submissions: -Mr. Kenyanya, Counsel for the 1st Administrator, filed his submissions dated 25/4/2026 in which he submitted that the testimonies of the six witnesses was not shaken; that under Section 29 of the Laws of Succession Act, all children of the deceased including daughters are entitled to inherit just as the sons are; that the protestor introduced new protestors to the matter in his Affidavit of 9/7/2025 i.e. Mary Jackson the wife of Jackson Chepsi, does not qualify as a dependant; that DW6 explained in her affidavit that Simon, Christopher and Esther are children of Liwaruk and cannot inherit from the deceased’s estate. Counsel also submitted that the two house narrative by PW1 was destroyed, while PW2’s testimony added no value to the case. 24.Counsel relied on the decisions of Estate of Lerionka Ole Ntutu (2008) where Judge Rawal held that if Maasai customary law would be applicable to the estate, the said law that would abrogate the right of daughters to inherit the estate of their father cannot be applicable as it is repugnant to justice and morality and RE Estate of Kipsongok Kili Kikatei where the court emphasized equitable distribution of the deceased’s estate. Determination: 25.All the pleadings, the evidence of witnesses and submissions have been considered. The issues that this court needs to determine are: -(1)Whether the decease had two wives and who are the beneficiaries of the deceased estate;(2)How should the estate be distributed. Whether the deceased had two wives: - 26.PW1 deponed that his mother was Matayo Cheporo, the deceased’s first wife. According to DW6 1st Administrator and DW1 deceased’s wife, told the court that Cheporo was the wife of Liwaruk who was brother to the deceased and that after his death,Cheporo was inherited by the deceased. DW1 admits that she married the deceased in 1956. It is only PW1 and 2 who alluded to how the deceased moved to Murkwijit in about 1948 and that he moved there with Simeon, Christopher, Esther and Jackson and that DW1 got married to deceased later. My view is that even if Cheporo had been married to Liwaruk, when he died, she became the deceased’s wife because Liwaruk wa no more. Even DW1 did admit that Jackson and PW1 are children of Cheporo and the deceased. I therefore find that the deceased had two houses; the first house being that of Cheporo Matayo and the second being that of Cheptangat DW1. 27.The next question is whether Cheporo’s children with Liwaruk are the dependents of the deceased in terms of Section 29 of the Laws of Succession Act. The section provides as follows: -“ 29.Meaning of dependantFor the purposes of this Part, "dependant" means—(a)the wife or wives, or former wife or wives, and the children of the deceased whether or not maintained by the deceased immediately prior to his death;(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; and(c)where the deceased was a woman, her husband if he was being maintained by her immediately prior to the date of her death.” 28.In her testimony DW1 admitted that the deceased took care of Liwaruk’s children, and that Simeon who was a police officer, was buried in the deceased’s land at Murkwijit. Her explanation was that it was because Simeon’s home was on a hill and the police who buried him requested to bury him at Murkwijit. The deceased was still alive and did not object. The above notwithstanding, PW1 told the court that Simeon had two wives, whereas Christopher had three wives but none of them reside on the subject land, but reside at Chepkono and Lelan. 29.Esther is said to be unmarried but resides at Lelan. According to PW1 his mother Cheporo went back to her children who lived in Lelan and was buried there. It is my considered view that Lelan or Chepkono being the ancestral home of the deceased, his brother Liwaruk must have had land there and it is where Simeon, Christopher and their families and Esther have settled. That is where Cheporo was buried. 30.To buttress this finding is the fact that even in the meeting of 9/7/2005 called by deceased, which PW1 does not deny, the deceased only identified four of his sons who did not include Simeon, Christopher and Esther. It is also surprising that neither Simeon or Christopher’s wives came up to testify to the fact that their husbands were the children of the deceased and hence entitled to part of his estate. I find it more likely than not that Simeon, Christopher and Esther are Cheporo’s children with Limaruk. They must have inherited from Liwaruk and it would be unfair and unjust for them to inherit from the deceased because it would mean they have benefited twice. 31.I therefore find that the dependants of the deceased’s estate are as follows:-1.Cheptangat Matayo 2nd widow2.Philip Loktari Alomai – 1st house3.Jackson Chepsi Alomai (deceased) – 1st house4.Musa Pkumon Alomai (deceased) – 2nd house5.Mark Ruto – 2nd house6.Emily Chepkemoi – 2nd house7.Lucia Chenangat – 2nd house. The second issue then is how should the estate be distributed?i.Land Parcel West Pokot/Keringet A 417 measuring 48.8 acresii.A share of Plot 50 X 100 feet (0.11) Acresiii.A4 in Murkwijit Centre 50 X 100 feet.iv.Cattle. 32.The 1st Administrator relies on the minutes of 9/7/2005 which was exhibited in court as representing what the deceased wanted his property would be distributed. DW1 to 6 all testified to that fact and added that the deceased also stated that Emily and Lucia get two acres each. To the contrary, the protestor wants the sub-division to be done in accordance with the two houses. 33.I have seen the minutes of 9/7/2005. They were taken by DW4 Toliem Samson. The deceased addressed the following issues(i)He warned the sons not to lease out the land without his permission(ii)The sons to assist the deceased and his wife Chepnangat.(iii)Each of the four sons should get 15,000/= by 27/8/2005 to pay for Survey of the land. 34.From reading of the said agreement, no specific acreage was given to any of the sons nor was any portion allocated to the daughters. In any event, the four sons of the deceased failed to comply with the conditions of sub-division, that each gives 15,000/= towards survey. All the witnesses confirmed that none of the sons complied. Therefore, the estate is still intact. 35.Despite my finding above, PW1 admitted that the deceased had shown the beneficiaries where to build and carry out their farming activities during his life. When the 1st Administrator filed an application seeking an order of injunction dated 27/12/2024, this court made enquiries by sending the Deputy Registrar to the disputed land to ascertain what activities were going on. The Deputy Registrar filed her report dated 7/4/2025. The findings are as hereunder :-“Report at the Scene on the 7th of April 2025 at 2.45 P.M.Coram - S.N. Telewa - PMNo appearance for the petitioner.No appearance for the respondents.CA – Juma1st Petitioner – present1st Respondent – present2nd respondent – absent3rd Respondent - absent4th respondent – absent5th Respondent – Absent.Observation The land is situated at Murkwijit area about 2 KM from Kitale- Kapenguria Highway. It has a natural fence and twelve temporary houses in total surrounded by a bush occupied by the following people. 1.A son to Philip Loktare (The first respondent)2.Mark Ruto (Son to the deceased)3.Cheptangat Matayo Alomai – one of Matayo Pkerker’s wife.4.Musa Pkomun a son to Matayo Pkerker.5.Benson Kisey, A son to Musa Pkumen who is a son to Matayo Pkerker Cheptaki.6.Benjamin Lotutt a son to Musa Pkomen who is a son to Matayo Pkerker Cheptaki.7.Silas Melco a son to the deceased one Musa Pkomen. Who was a son to Matayo Pkerker.8.2 houses and a posho mill for Philip Loktari the first respondent.9.Joseph Lomet a son to Philip Loktari the first respondent.10.Geoffrey Jackson a son to Jackson Alomai (deceased) son to Matayo Pkerker11.Mary Jackson a wife to Jackson Alomae (deceased) who was a son to Matayo Pkerker.12.Solomon Philip a son to Philip Lokitare Alumole who is a son to Matayo Pkerker.13.1st Petitioner has no house there but she has two acres which she said that she has not been able to farm it.Activities on the land;-The following are farming on the land. Philip Loktari – Elizabeth Musa Mary Jackson Mark Ruto Cheptangat Matayo Emily Chepkemoi. Lucia Chelagat The remaining parcel of land is used for grazing by all the people that have put up the temporary houses on the land.HON. S.N. Telewa ( PM)All the people named in the report reside and till the said land. In their testimonies, DW1, DW4 and DW6 all alleged that the protestor (PW1) had chased them from the said land and he is in exclusive possession. They denied having reported to any authority. I find that DW1, 4 and 6 outrightly set out to lie to the court on oath and misled the court as to the status of the land. They forgot that the Deputy Registrar visited the suit land and reported her findings to the court. The court has no idea what they intended to achieve by the said untruths unless they wanted the court to hold the protestor to be depicted as cruel and selfish. 36.I must point out at this stage before I proceed to distribution, that Section 29 (a) of the Laws of Succession Act, which I have referred to earlier, does not say that the children of the deceased are either sons or daughters, married or unmarried. The section does not discriminate between children of the deceased based on sex or marital status. 37.The children also need not prove that they are being maintained by the deceased at the time of his death. 38.Section 29 Laws of Succession Act is attune with Article 27(3) which provides “Women and men have the right to equal treatment, including the right to equal opportunities in political, economic and social spheres.” 39.In RE the Estate of Lorionka Ole Ntutu (2008) eKLR, Judge Rawal as she then was held that daughters are also entitled to inherit a share from their fathers’ estate just like sons. In Re Estate of Solomon Ngatia Kariuki (2008) eKLR J. Mukhandia as he then was explained that even married daughters are entitled to inherit from their father’s estates. Also see Court of Appeal decision in Rono -V- Rono [2015] eKLR. 40.The beneficiaries of the deceased’s estate have not agreed on distribution. The second Administrator proposed the mode of distribution to be in accordance with the houses, i.e. the deceased had two houses. The first wife is deceased but the second is still alive. Section 40 of the Laws of Succession Act provides how the estate will be distributed when an intestate was polygamous.(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 41.In the case of Mary Rono -v- Jane Rono & Another (2005) eKLR the court considered Section 40 of the Laws of Succession Act and Judge Omollo, JA had this to say at paragraph 35 and 36“ 35My Understanding of the section is that while the net intestate estate is to be distributed according to houses, each house being treated as a unit, yet the Judge doing the distribution still has a discretion to take into account or consider the number of children in each house. If parliament had intended that there must be equality between houses, there would have been no need to provide in the section that the number of children in each house be taken into account (Section 40 LSA) 36Nor do I see any provision in the Act that each child must receive the same or equal portion. That would clearly work an injustice particularly in case of a young child who is still to be maintained, educated and generally seen through life. If such a child, whether a girl or a boy, were to get an equal inheritance with another who is already working and for whom no school fees and things like that were to be provided, such equality would work an injustice and for my part, I am satisfied the Act does not provide for that kind of equality.” 42.Again in Judith Ramaita and Another -V- James Koote Ramaita [2025] KECA (CA 545/2019) the court said as follows of Section 40 of the Laws of Succession Act stated that: “The Law thus requires that the estate of a person who was polygamous and who died intestate should be divided among his houses according to the number of children in each house. The purpose of this provision is to ensure that here is equity in distribution of the estate without any form of discrimination amongst the surviving wives and children of the deceased”. 42.It means that distribution is not necessarily equal but equitable. There are two proposals to the distribution. In my view, the 2nd Administrator’s proposal that the estate be divided equally between the two houses would not be fair because the second house has more beneficiaries and the distribution would not be equitable. 43.I find the proposal by the 1st Administrator more tenable and fair because the daughters are included and they have only asked for two acres each leaving most of the estate to the sons. The court therefore partially adopts the 1st administrator’s proposal. 44.As regards the main asset of the estate which is West Pokot Keringet A/417 measuring 48.18 acres, the same will be distributed as follows: -1.Land Parcel West Pokot /Keringet A 417 19.5 HA (48.1845 Acres) be distributed as:-8.Musa Pkomun Alomai (deceased) – 10 acres - Son9.Mark Ruto – 10 acres - Son10.Philip Loktari Alomai – 10 acres - Son11.Jackson Chepsi Alomai – 10 acres - Son12.Emily Chepkemoi – 2 acres - Daughter13.Lucia Chenangat Cheptaki – 2 acres - Daughter14.Cheptangat Matayo Alomai -4.1845 acres - Widor 45.The 1st Administrator did not establish why a plot measuring 50 X 100 feet (0.11 acres) should be hived off to be given to James Yego. There is no agreement or evidence that the said Yego was gifted by the deceased during his lifetime. If the said Yego has to be given that land, then it should be hived off from the second house’s share. 46.There was mention of a plot at the market allegedly given to Cheptangat (DW1) by the deceased. There is no document to support its existence and the court declines to make any orders in respect thereof. 47.The protestor also alluded to the deceased having had cattle which the second house still holds. It was not established how many cattle the deceased had at the time of death and what the 2nd house is holding at present The court cannot make orders in vain. 48.The upshot is that the estate is distributed as per paragraph 44 above- 49.Being a family matter, each party to bear their own costs. DATED, SIGNED AND DELIVERED AT KAPENGURIA THIS 29TH DAY OF JULY, 2026.HON. R.P.V. WENDOH.JUDGE.In the presence ofMr. Kenyanya for 1st AdministratorMr. Ndarwa holding brief for Mr. KiarieJuma/Hellen – Court Assistants.