https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10226

In re Estate of Kibor (Deceased) (Probate & Administration E008 of 2024) [2026] KEHC 10226 (KLR) (3 July 2026) (Judgment) Neutral citation: [2026] KEHC 10226 (KLR) Republic of Kenya In the High Court at Eldama Ravine Probate & Administration E008 of 2024 TM Matheka, J July 3, 2026 IN THE ESTATE OF KIPCHUMBA ARAP KIBOR (DECEASED) Between Mary Jepkoech Chumba 1st Applicant Tamutwol Kipchumba Kibor 2nd Applicant Christine Jelagat Bor 3rd Applicant Judah K Chumba 4th Applicant and Musa Kurui Chumba 1st Respondent Johana Chumba 2nd Respondent Judgment 1.Kipchumba Kibor alias Kipchumba Arap Kibor (deceased) died on 29/5/2003. 2.According to the Form P and A dated 20/7/2020 he was survived by1)kimoi Tamutwo Kipchumba – Widow2)Kabon Tamutwe Kibor - deceased3)Christine Chelagat Bor - Widow4)Judah Kipkosgei Chumba - Son5)Dinah Jepkurui Chumba - Daughter6)Esau Chumba - Deceased7)Anthony Kipkemoi Kibii - Grandson8)Johana Chumba - Son9)Alex Kiprop Chumba - Son10)Joseph N’getich Chumba - Son11)Musa Kurui Chumba - Son12)Abraham Kipngetich Chumba - Son13)Josphat Kipkoech Chumba - Son14)Collins Cheruiyot Chumba - Son15)Felix Kiprono Chumba - Son16)Rose Chepkemoi Chumba - Daughter17)Faith Chebichii Chumba - DaughterHis estate was listed as:-a).Land Known As Lembus /kiptuim/210B).land Known As Lembus/kiptuim/270C).Land Known As Kampi Ya Moto /kampi Ya Moto 2/39D).land Known As Gituamba/muhotetu Block 3/22 3.A grant of letters of administration intestate was issued on 8/11/2021 to;Kimoi Tamutwo KipchumbaChristina chelagat BorJudah Kipkosgei ChumbaMary Chepkoech ChumbaThis was in Eldama Ravine MC SUCCESSION cause 456/2020 4.They filed Summons for confirmation of grant dated 8/2/2023 where they sought to distribute the estate as follows;I.LR.NO. Lembus/ Kiptoim/210, measuring approximately (100.0) HA Name Share Sign a. Kimoi Tamutwol Kipchumba 70.0 Acres …... B. Mary Jepkoech Chumba 5.0 Acres …… C. Musa Kurui Chumba 12.0 Acres ….. D. Joseph Ngetich Chumba 9.0 Acres ….. E. Linah Maiyo 4.0 Acres ….. ii.Lr.no. Lembus/ Kiptoim/210, Measuring Approximately (100.0) Ha Name Share Sign A. Judah Kipkosgei Chumba All Share ……….. iii.Lr.no. Kampi Ya Moto/kampi Ya Moto/2/39, Measuring Approximately (21.89) Ha Name Share Sign A. Christina Chelagat Bor All Share ……… iv.Lr.no. Gituamba/muhotetu Block 3/22, Measuring Approximately (7.65) Ha Name Share Sign A. Musa Kurui Chuimba 9.4 Acres …….. B. Joseph Ngetich Chumba 9.4 Acres ……… 5.By an order given on 17/9/2024 issued on 2/10/24 the matter was transferred to the Eldama Ravine High Court Sub Registry. 6.When the matter was mentioned on 19/2/2025, Mr. Kigen for the objectors informed the court that there was an objection filed in the subordinate court where directions had been given for viva voce evidence. 7.Parties exchanged documents, and witness statements. 8.The matter was referred to mediation. 9.On 11/6/2025 the court was informed that mediation had collapsed. 10.On 3/12/2025 the matter was fixed for hearing on 26/1/2026. 11.I took over on 13/4/2026. The matter was heard on 21/5/2026. 12.I have perused the subordinate court file – and did not see the objection itself. I have also perused this file I found none. I have checked the CTS - I did not see it. 13.I had to rely on the witness statements, documents and submissions to determine the nature of the objection 14.Evidently the objection was brought against the mode of distribution of the estate. 15.Mary .J. chumba testified as the objectors’ witness. In her statement filed on 9/2/2024- which she adopted as her evidence in chief she testified that her father had three houses set out as follows; -1st houseKabon Tamutwol Kibor( widow) ( deceased)Jenifer Teriki Chumba (deceased)Mary J. ChumbaMusa K. Chumba andJoseph N. Chumba2nd houseTamutwol Kipchumba Kibor (widow)Sally ChumbaJudah K.ChumbaEsau Chumba (deceased)Dinah ChumbaLeah ChumbaJohana K. ChumbaMiriam Chumba3rd houseChristine Chelagat Bor (widow)Rebecca ChumbaMilka chumbaAbraham K. ChumbaJosphat K. chumbaAlex K.ChumbaJebet ChumbaCollins C.ChumbaKiprono Chumba andJebichii Chumba 16.She also set out her father’s properties as: -1.Lembus/Kiptoim/270 (28acres)2.Lembus/ Kiptoim/210 (100 acres)3.LR. NO. Kampi ya moto/ kampi ya moto/2/39(54acres) 17.According to her proposed, the properties should be shared equally among the three houses- with each administrator holding the share for each house in trust for them. 18.Judah K. Chumba filed authority /consent by other members of the 1st home, to testify on their behalf, and filed it on 12/3/2024. 19.He also filed another statement dated 14/2/2026 – he adopted that as the evidence in chief. He set out the distribution of the estate as follows: - (He was supported in this by the statement of Leah Kiprono Chumba, Joseph Kipkoech Chumba)1.Lembus/ kiptoim/270- (30 acres): Be allocated to Juda Kipkosgei Chumba of Id no 4013981 and mobile: 0708xxxxx22.Lembus /Kiptoim/210 (100 Acres): Be distributed as follows;i.Esau Kipkirui Chumba (deceased) be allocated 25 acres and one of my sisters (Leah Chepngetich Chumba of Id No 100xxxxx83, mobile: 0721xxxxx0) to administrate on behalf of the late.ii.Johanna Kiprono Chumba of Id no. 109xxxx3 and mobile: 0726xxxxx2, be allocated 20 acresiii.Alex Kiprop Chumba of Id no: 2xxxxx1 and mobile: 072xxxxx10, be allocated 15 acresiv.Leah Chepngetich Chumba of Id No: 100xxxx3, mobile: 0721xxxxx0, be allocated 5 acresv.Teriki Kutol of Id No: 4xxxxx7 and mobile: 079xxxxx2 be allocated 5 acres.vi.Mirriam Teriki Cheruiyot of No: 40xxxxx16 be allocated 5 acresvii.Dinah Chepkurui Chumba of Id No: 80xxxx1 and mobile: 07xxxxxxx89 be allocated 10 acres.viii.Anthony Kipkemoi Kibii of Id No: 21xxxx45 and mobile: 07xxxxxxx32 be allocated 5 acres.ix.Kimoi Tamutwol Id no: ……. Be allocated 4.5 acres.x.Full gospel churches of Kenya be allocated 0.5 acres.The remaining 5 acres to be allocated to Ng’arua beneficiaries i.e., Musa Chumba , Mary Chumba, the late Jeniffer Chumba and our late mother- Kabon be allocated each 1 Acre.This brings a total of 100 acres. 3.Kampi Ya Moto Block 2/39(54 Acres ): Be distributed as follows:xi)Abraham Kipngetich Chumba of Id No: 11xxxxx3and mobile: 07xxxxx72, be allocated 8.6 acres.xii)Josphat Kipkoech Chumba of Id No: 13xxxxx15 and mobile: 07xxxxxxx91, be allocated 8.6 acres.xiii)Collins Cheruiyot Chumba of Id No: 2xxxxx39 and mobile: 07xxxxxx63, be allocated 8.6 acres.xiv)Felix Kiprono Chumba of Id NO: 3xxxxxx3, be allocated 8.6 acres.xv)Rebecca Chemutai Chumba of Id No: 9xxxxx5 and mobile: 072xxxxxxx6, be allocated 1.6 acres.xvi)Milcah Chumba of Id No: ……… and mobile: 072xxxxxxx6, be allocated 1.6 acresi)Rose Chepkemoi Chumba of Id No: 13xxxxxx5 and mobile:+1(806)70xxxxx6, be allocated 1.6 acres.ii)Maureen Chebet Chumba of Id No: 22xxxxx74 and mobile: 07xxxxxxx08, be allocated 1.6 acres.iii)Faith Chebichii Chumba of Id No:…………… and mobile:07xxxxxxx39, be allocated 1.6 acres.iv)Christina Chelagat Bor of Id No: 31xxxx5 and mobile: 0791xxxx82, be allocated 11.6 acres.This brings a total of 54 acres. 4.Gituamba Muhotetu Block 3/22 of Lembus Kong’asis in Laikipia ( 19 acres: Be distributed as follows:iii)Musa Kurui Chumba of Id No 42xxxx1 and mobile 0714xxxx72 be allocated 9.5 acres.iV)Joseph Ng’etich Chumba of Id No: 329xxxx51 and mobile 0745xxxx37 be allocated 9.5 acres.This brings the totals 19 acres. 17.During the hearing, Mary .J. Chumba told the court that the parcel no. Gituamba/Muhotetu Block 3/22 did not belong to the father, and was not part of the estate yet the petitioner had allocated it to the 1st family. 18.She said that their father had intended to obtain title for the land but had not done so before he died. 19.The petitioner, Judah K. Chumba confirmed that this Gituamba parcel of land did not have title deed. He blamed the 1st family for not looking for that title deed. He said that his father took the 1st family to that but they had failed to obtain title. 20.On cross examination he confirmed that he alone and his family occupied LR 270, that his mother occupied LR 210 with his siblings and their children; and that the 3rd House occupied the Kampi ya Moto property. 21.He said his brother Johanna had leased no 210 and there was even a non – member of his family doing developments on that properly. 22.He confirmed that the Muhotetu Land had no title deed. Analysis And Determination 1.Parties had said through respective counsel that the objector would file submissions but petitioner sought to rely on the evidence on record. 2.I have perused the CTS I have found no submissions hence the court will consider the evidence and documents relied upon by the parties. 3.The issue is whether the objection raised by the objector against the mode of distribution has any merit. 4.It is not in dispute that the deceased had three wives. The 1st house has the widow (deceased) and 4 children (5 units), the second house has the widow and 7 children (8 units), and the 3rd house has the widow and 10 children (11 units) 5.According to the objector the father left three properties, but the petitioner says they are far – so we have to determine the estate of the deceased. 6.The property in question is Gituamba/Muhotetu Block 3/22 7.The petitioner concedes that his property does not have a title deed, and is not in the name of the deceased – so the question that begs is how he could distribute property whose ownership he head not established? 8.The petitioner was heard to say that it is the objector’s family that had failed to pursue their own title deed for that property. 9.I must point out that the objector’s had no such duties. If the deceased had not obtained title before his demise, and the petitioner as the personal legal representative was persuaded that the property was part of the estate of the deceased, then he had the legal obligation to secure that property. 10.Section 83(b) of the LOSA states that among the duties of the personal representative is “to get in all the free property of the deceased” 11.The duty of the court at the confirmation of the grant is set out at section 71 – the proviso to section 71(1)-Provided that in all cases of intestacy the grant of letters of administration shall not be confirmed until the court is satisfied as to the respective identities of and shares of all persons beneficially, and when confirmed the grant shall specify all such persons and their respective shares”In the circumstances of this case –The free property of a deceased person is defined at section 2 of the LOSA to be – the property that person was legally competent to freely dispose during his life time, in respect of which his interest has not terminated by his death 12.Clearly from the evidence of the petitioner, the deceased was not the registered proprietor of the Gituamba/ Muhotetu Block 3/22, and hence it would not have been available for distribution. 13.It does not matter that some beneficiaries are occupying the land – it will only be considered the property of the deceased upon the acquisition of the title in the name of the deceased. 14.From what the petitioner told the court, he and his family occupy one of the other three properties, LR 270 his mother occupies another together with his sibling, LR 210 and the children of the 3rd house occupy the other property - Kampi ya Moto .Evidently the family of the objector has been left out of the distribution of the estate. 15.From the list in the form P & A 5 – there are three houses – in the distribution of the estate the same must be equitable but this court will be guided by the law regarding distribution where the deceased was polygamous. 16.There are three houses and adding up the widows and no of children, there are : 5+8+11= 24 units. 17.Lembus Kiptoim 1270 in 28 Acres; Lembus Kiptoim 1210 in 100 Acres; Kampi ya Moto 2/39 in 54 Acres.Total = 182 Acres 18.There is no explanation of foundation for the distribution given by the Petitioners. It is unfair and unjust. It is not equitable and does not follow the law. 19.Following section 40(1) of the LOSA each will be distributed as follows:Land Known As Lembus /kiptuim/21028/24 =1.16 Acres- 1st x 5=5.82nd x 8=9.283rd x 11=12.76Land Known As Lembus/kiptuim/270100/24=4.16 Acres – 1st x 5= 20.82nd x 8= 33.83rd x11= 45.76Land Known As Kampi Ya Moto /kampi Ya Moto 2/3954/24 = 2.25 Acres – 1st x 5 = 11.52nd x 8= 183rd x 11=24.75 20.I order that the estate be distributed in the above manner. 21.Mary .J. Chumba and Musa K chumba to hold the shares of the 1st house in trust for themselves and other siblings in equal shares. 22.Tamutwo Kipchumba Kibor and Judah K. Chumba to hold the shares of the 2nd house in trust for themselves and the other children of that house 23.Christine C. Bore and Abraham K. Chumba to hold the shares of the 3rd house in trust for themselves and other members of the house. 24.Each house is at liberty to present a distribution matrix of their shares from each property. 25.For Gituamba/Muhotetu Block 3/22, the administrator to pursue title deed on behalf of the estate – and the same – if obtained to be shared in the same ratio as above. 26.A certificate of confirmation of grant to issue in accordance with the distribution set out herein above. 27.Each Party to bear its own costs. JUDGMENT DATED, SIGNED AND DELIVERED VIRTUALLY AT KABARNET HIGH COURT THIS 3RD JULY 2026.MUMBUA T MATHEKAJUDGECA IanCollins Kigen for ObjectorsNyagaka for Petitioners N/AMusa Chumba PresentMary Chumba Present