https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10887

**REPUBLIC OF KENYA** **IN THE HIGH COURT AT ELDORET** **SUCCESSION CAUSE NO. E124 OF 2023** **IN THE MATTER OF THE ESTATE OF FRANCIS KIMUTAI TOO ALIAS FRANCIS KIMUTAI KIPTOO (DECEASED)** **CELESTINE CHEPCHIRCHIR MUTAI ...................................... PETITIONER** **VERSUS** **DORCAS CHEPKORIR TOO...............................1ST OBJECTOR/APPLICANT** **MARK MELI TOO.............................................2ND OBJECTOR/APPLICANT** **GIDEON KIPKOECH MUTAI TOO......................3RD OBJECTOR/APPLICANT** **CAROLINE JEROP TOO....................................4TH OBJECTOR/APPLICANT** **FRIDAH CHEPCHIRCHIR TOO..........................5TH OBJECTOR/APPLICANT** **Coram: Before Hon. R. Nyakundi** **M/s Chepseba Lagat & Ass. Advocates** **M/s Kimutai Kimaru & Co. Advocates** **RULING** 1. Before this Court is Notice of Motion dated 28th January 2026, expressed to be brought under Order 10 Rule 11 and Order 22 of the Civil Procedure Rules Section 2A& 2B of the Civil Procedure Act. The Applicant seeks the following orders: 2. **THAT** this honorable Court be pleased to grant the Objectors/Applicants, leave to appeal the decision delivered by this honourable Court on 13th January 2026 and 2nd April 2025 to the Court of appeal. 3. **THAT** pending the hearing and determination of this application inter-partes, thereafter the appeal, there be an order for stay of execution of the decision of this Court delivered on the 13th January 2026 and 2nd April 2025, and this succession proceedings. 4. Costs of this application be costs in the cause. 5. *The application is based on the grounds that:* 6. *THAT on the 13th January 2026 the Court delivered it's ruling on the Objectors/Applicants Application dated 15th April 2025.* 7. *THAT the ruling delivered on 13/1/2026 was delivered through CTS.* 8. *THAT the Applicants/Intended Appellants are greatly aggrieved by the Ruling delivered in this Honourable Court on 13th January 2026 and prays for another opinion from the Court of Appeal.* 9. *THAT in view of the fact that the ruling was delivered through CTS the applicant's counsel herein was not able to apply for stay orally.* 10. *THAT the ruling was not served through the counsel's email address.* 11. *THAT the ruling came to the attention of counsel and the Applicant on 20th January 2026* 12. *THAT there is no automatic right of appeal from the decisions of the High Court to the Court of Appeal on probate and administration matters, and hence leave is mandatory before the appeal is filed.* 13. *THAT the Applicants/Intended Appellants have an arguable appeal as more demonstrated on the Draft Memorandum of Appeal, and it is in the interest of justice that the Applicants/Intended Appellants be granted leave by this honourable Court to appeal against this honourable Court's Ruling that was delivered on 13th January 2026.* 14. *THAT the Applicants undertake to expeditiously prosecute the intended appeal in a timely manner, so as not to prejudice the Respondents.* 15. *THAT unless the orders sought are granted, the Applicant/Intended Appellant stands to suffer irreparable damage.* 16. *THAT it is in the interest of justice that the matter be heard and determined on merit.* 17. *THAT the Respondent shall not suffer any prejudice that can't be remedied by way of costs.* 18. *THAT this application is made timeously and in the interest of justice.* 19. In support of the application is the sworn affidavit of Dorcas Chepkorir Too who deponed as follows: 20. *THAT I am a female adult of sound mind, the Petitioner/Applicant authorized and competent to depose hereto. dully* 21. *THAT on the 13th January 2026 the Court delivered it's ruling to our Application dated 15th April 2025.* 22. *THAT the ruling was delivered through CTS.* 23. *THAT my Advocate on record was not able to apply for stay of execution of the decision at the day the delivery of ruling.* 24. *THAT I am greatly aggrieved by the Ruling delivered in this Honourable Court on 13th January 2026 and pray for another opinion from the Court of Appeal.* 25. *THAT I am informed by my counsel on record which information I verily believe to be true that there is no automatic right of appeal from the decisions of the High Court to the Court of Appeal on probate and administration matters, hence this application for leave is mandatory.* 26. *THAT I have an arguable appeal, and it is in the interest of justice that the Applicant/Intended Appellant be granted leave by this honourable Court to appeal against this honourable Court's Ruling that was delivered on 13th January 2026. I intend to appeal against the decision on the grounds that:* 27. *THAT the Learned Trial Judge erred in law by failing to consider the provisions of Section 66 of the Law of Succession Act which gives priority to the widow in applying for Grant of Letters of Administration Intestate.* 28. *THAT the Honourable Court determined the objection proceedings without according us an opportunity to be heard on merit, including the opportunity to tender oral evidence or challenge the Petitioner's evidence, which we had expressly sought.* 29. *THAT the documents relied upon by the Petitioner, including a death certificate and administrative letters, were contested, and despite our objections, the Honourable Court declined to examine or authenticate the said documents.* 30. *THAT we raised serious concerns regarding the paternity of some of the proposed beneficiaries, and despite requesting DNA testing to resolve the dispute, the Honourable Court declined to grant the said request.* 31. *THAT there exists a prior Court determination finding that the Petitioner's mother was not a spouse of the deceased, which determination was brought to the attention of the Honourable Court but was not considered.* 32. *THAT despite the foregoing disputes, the Honourable Court proceeded to appoint an administrator whose entitlement to the estate remains contested, thereby exposing the estate to administration by a person whose locus standi is in dispute.* 33. *THAT material evidence and submissions placed before the Honourable Court by the Objectors were not addressed, resulting in a decision that did not resolve the core issues raised in the objection proceedings.* 34. *THAT unless the intended appeal is heard and determined, the estate risks being administered on the basis of unresolved disputes, which may render the appeal nugatory.* 35. *THAT I undertake to expeditiously prosecute the intended appeal in a timely manner, so as not to prejudice the Respondents. In the meantime, it is important to stay the execution of the decree of the Court/ proceedings so that the subject matter of the appeal is not wasted, nor the intended appeal rendered nugatory* 36. *THAT unless this motion is allowed, the Petitioner/Applicant shall be condemned unheard.* 37. *THAT on the converse, the objectors shall have their day in Court as this matter shall proceed for fresh hearing.* 38. *THAT the Court has unlimited discretion to grant stay of proceedings and execution as well as the orders for leave to appeal to the Court of appeal, issued upon such terms as are just in the light of all the facts and circumstances.* 39. *THAT there is no prejudice which will be suffered by the Petitioner.* 40. *THAT this application is brought in good faith, timeously and in the interest of justice*. 41. In response of the application is the replying affidavit of Celestine Chepchirchir Mutai who avers as follows: 42. *THAT I am a female adult of sound mind* 43. *THAT I have read and understood the application herein dated the 28th January 2026 and I respond thereto as follows:* 44. *THAT this application is merely intended to delay the finalization of this matter and enable the applicant to continue utilizing the estate to the exclusion of the other beneficiaries.* 45. *THAT this application is seeking for leave to appeal the decision of this Court pronounced on the 13th January 2026 and 2nd April 2025.* 46. *THAT I am adviced by my learned advocates on record that leave to appeal will normally be granted where prima facie it appears that there are grounds which merit serious judicial consideration which are lacking in this application.* 47. *THAT for the ruling dated the 2nd of April 2025, the applicant has filed a notice of appeal dated 8th April 2025 without leave (see the notice of appeal marked C.C.M 1), that notice is obviously incompetent for want of leave.* 48. *THAT I am further adviced that leave is a preliquisite to filing notice of appeal in the Court of appeal, the applicant cannot therefore seek leave to file notice which notice is already filed and there are no provisions in the Court of appeal rules that permit the obtaining of leave to file notice of appeal after the notice of appeal has been filed.* 49. *THAT therefore, the question of obtaining leave after a notice of appeal is filed is water under the bridge and is therefore not an issue which should require serious judicial consideration.* 50. *THAT in paragraph 7 of the supporting affidavit at sub-paragraph (a) the applicant indicates that the Court did not consider the provisions of section 66 of L.S.A which gives priority to the widow in applying for grant. This honourable Court has made an order including the applicant as one of the administrators; this therefore is a non-issue.* 51. *THAT in paragraph 7(b) the applicant indicated that the Court determined the objection proceedings without according the applicant an opportunity to be heard on merit, including the opportunity to render oral evidence or challenge the petitioner’s evidence which the applicant had expressly sought, I am adviced by my Advocates on record that hearing of objection proceeding can be by viva-voce or through affidavits, there is no such law or rule that objection proceedings strictly be heard orally. There was nothing that prevented the applicant from challenging my evidence through affidavits and further affidavits and in any case it is not the litigants who sets directions for the Court on which mode of trial to adopt, this is a preserve of the Court and the Court cannot be faulted for adopting trial through affidavits.* 52. *THAT in paragraph 7 (c) the applicant indicates that the documents including a death certificate and administrative letters, were contested and despite objections, the honourable Court declined to examine or authenticate the said document; this is a false claim and in any case if that be the issue nothing has stopped the applicant to make a specific application to that effect or even seek review specifically based on the alleged documents, this is not the province of the Court of appeal.* 53. *THAT in paragraph 7 (d) the applicant raised serious concerns regarding the paternity of some of the proposed beneficiaries and despite requesting DNA testing to resolve the dispute, the honourable Court declined to grant the request again this is an application that can be made to the Court for consideration it is not the jurisdiction of the Court of appeal to handle this, the Court has not slammed the door against the applicant to raise this issue through an application. It cannot be a matter that is casually raised in an application for stay pending appeal as the same was so raised herein.* 54. *THAT at paragraph 7 (e), the applicant indicates that there exists a prior Court determination finding that the petitioners mother was not a spouse of the deceased, which determination was brought to the attention of the Court but was not considered, again this is not an issue that could be addressed and seriously considered in an application for stay pending appeal. In any event, the reason of my mother not being a spouse to my father and my other siblings does not in itself mean that we cannot be beneficiaries of his estate.* 55. *THAT nothing has been raised in this application which prima facie requires judicial consideration in the Court of appeal.* 56. *THAT there is no merit in this application and I pray that the same be dismissed with costs* 57. **The 2nd application is the SUMMONS FOR CONFIRMATION** (Under Rule 71 (3) of the Succession Act and Rule 40 (2) of the Probate and Administration Rules 1980 and all other enabling provisions of the law. The Petitioner seeks the following orders: 58. *THAT the grant of letters of administration issued on 2nd April 2025 to Celestine Chepchirchir Mutai and Dorcas Jepkorir Too in respect of the estate of Francis Kimutai Too alias Francis Kimutai (Deceased) be hereby confirmed.* 59. *THAT costs of this application be provided for.* 60. The Application is made on the following grounds; 61. *That on 2nd April 2025 the honourable Court issued grant of letters of administration of the estate of FRANCIS KIMUTAI TOO alias FRANCIS KIMUTAI KIPTOO who died on 10th August 2022.* 62. *There is no application for dependants pending herein.* 63. *The honourable Court has the necessary jurisdiction to entertain this matter.* 64. In support of the summons is the sworn affidavit by Celestine Chepchirchir Mutai who deponed as follows: 65. *THAT the grant of letters of administration of the estate of the late FRANCIS KIMUTAI TOO alias FRANCIS KIMUTAI KIPTOO have been issued to CELESTINE CHEPCHIRCHIR MUTAI and DORCAS JEPKORIR TOO.* 66. *THAT I am the daughter of the deceased herein, the 1st administrator.* 67. *THAT my deceased father had the following properties: a. Land parcel Eldoret Municipality Kapyemit Block 20/99 measuring approximately 8.78Acres. b. Land parcel Uasin Gishu Illula 236 measuring approximately 5 acres. c. EMC Kapyemit Block 20/96 approximately 0.2 acres. d. Money in Nakuru Line Sacco e. Motor vehicle registration number KAH 210P f. Livestock* 68. *THAT my deceased father had two wives, one of them is deceased he left behind the following beneficiaries:* 1. *Dorcas Chepkorir Too - Widow* 2. *Mark Melly - Son* 3. *Edward Kipkemboi Mutai - Son* 4. *Caroline Too - Daughter* 5. *Fridah Chepchirchir Too - Daughter* 6. *Lameck Kipyego Kogo - Son* 7. *Celestine Chepchirchir Mutai - Daughter* 8. *Joseph Kiprugut Mutai - Son* 9. *Gideon Kipkoech Mutai - Son* 10. *Grace Winnie Chebet - Daughter* 11. Micheal Kemboi Kimutai - Son 69. *THAT I propose that the property be distributed directly to the beneficiaries each of them constituting a unit* 70. *THAT I urge this honourable Court to distribute the estate as follows;- (attached therein)* | | | | --- | --- | | | | 1. *THAT the above distribution has taken into account the principles of equity and equality and we pray that the same be distributed as such.* 2. *THAT I pray that the grant be confirmed as above.* 3. Before this Court is Chamber Summons dated 9th February. 2026 expressed to be brought*under Section 1, 1A, 3, 3A and 63(e) of the Civil Act Order 50 Rule 1 of the C.P.R and all other enabling provisions of the law.* 1. *THAT this application be certified as urgent and service of the same be dispensed with in the first instance.* 2. *That Sammy Mutai, Joy Jelagat Waithera, Celestine Chepchirchir Mutai, Edward Kipkemboi Mutai, Lameck Kipeyego Kogo, Joseph Kiprugut Mutai, Grace Winnie Chebet and Michael Kemboi Mutai do undergo a DNA test to determine whether the deceased herein FRANCIS KIMUTAI TOO alias FRANCIS KIMUTAI KIPTOO is the biological father.* 3. *THAT costs of this application be provided for* 4. That application is based on the following grounds:- 5. *THAT the 1st Applicant/Objector and the deceased were husband and wife.* 6. *THAT out of the foresaid marriage they were blessed with four children namely Mark Meli Too, Gideon Kipkoech Mutai Too, Caroline Jerop Too and Fridah Chepchirchir Too.* 7. *THAT there had arisen a dispute over the paternity in ELDORET CMCC MISC NO.620/2022 of the following;- Edward Kipkemboi Mutai, Lameck Kipeyego Kogo, Joseph Kiprugut Mutai, Grace Winnie Chebet, Sammy Mutai, Celstine Chepchirchir Mutai, Joy Jelagat Waithera And Michael Kemboi Mutai.* 8. *THAT samples of the deceased were preserved pursuant to a Court order in ELDORET CMCC MISC NO.620/2022.* 9. *THAT it is just and fair that a paternity test to determine whether the deceased is the biological father of the following;- Edward Kipkemboi Mutai, Lameck Kipeyego Kogo, Joseph Kiprugut Mutai, Grace Winnie Chebet, Sammy Mutai, Celstine Chepchirchir Mutai, Joy Jelagat Waithera And Michael Kemboi Mutai be done expeditiously* 10. *THAT the Objector/Applicant herein has disputed paternity of the aforementioned children namely Sammy Mutai, Joy Jelagat Waithera, Celestine Chepchirchir Mutai, Edward Kipkemboi Mutai, Lameck Kipeyego Kogo, Joseph Kiprugut Mutai, Grace Winnie Chebet and Michael Kemboi Mutai.* 11. *THAT there are DNA samples which were preserved pursuant to a Court order issued.* 12. *THAT the Petitioner’s actions are saddled with malice and intended to disinherit the Objector/Applicants from inheriting the deceased’s Estate.* 13. *THAT the Objector/Applicant has suffered anguish as a result of the Respondent’s actions.* 14. *THAT this application has been made promptly and in utmost good faith.* 15. *THAT in paragraph 13 of the Replying Affidavit sworn by the Petitioner on 27/12/2026, she admits that her late mother was not married to the deceased which was the basis of her siblings claim in the Estate of the deceased.* 16. *THAT it will therefore be in the interest of justice that the application now before Court be allowed and the prayers sought granted for the interest of justice to be met.* 17. In support of the application is the sworn affidavit of DORCAS CHEPKORIR TOO who deponed as follows: 18. *THAT I am a female adult of sound mind and the Applicant herein well conversant with the issues raised herein hence competent and authorized to swear this affidavit.* 19. *THAT I am a widow to the deceased herein FRANCIS KIMUTAI TOO alias FRANCIS KIMUTAI KIPTOO who died intestate on the 10th August 2022.* 20. *THAT my marriage with the deceased was blessed with four children namely Mark Meli Too, Gideon Kipkoech Mutai Too, Caroline Jerop Too and Fridah Chepchirchir Too.* 21. *THAT the Petitioner herein secretly applied for Grant of letters of Administration without including me together with my children.* 22. *THAT at no time did I consent to the Petitioner to file the Succession or did I waive my right to file Succession cause.* 23. *THAT I have suffered anguish and mental torture as a result of the Petitioner’s actions.* 24. *THAT I have undergone trauma at the hands of the Petitioner.* 25. *THAT it will therefore be in the interest of justice that a DNA test be carried out on Sammy Mutai, Joy Jelagat Waithera, Celestine Chepchirchir Mutai, Edward Kipkemboi Mutai, Lameck Kipeyego Kogo, Joseph Kiprugut Mutai, Grace Winnie Chebet and Michael Kemboi Mutai to determine whether the deceased herein was their biological father.* 26. *THAT I have brought this Application promptly and in utmost good faith.* 27. In protest against confirmation of grant by Dorcas Chepkorir Too: 28. *THAT I am the legal wife of the late FRANCIS KIMUTAI TOO alias FRANCIS KIMUTAI KIPTOO. (annexed and marked DCT-1 is a copy of the marriage certificate).* 29. *THAT the Law of Succession Act Cap 160 provides on who qualifies to apply for representation in intestacy. Section 66 of the Law of Succession Act sets out the order of preference with regard to who ought to apply and be appointed administrator in intestacy. Priority is given to surviving spouses, followed by the children of the deceased. In addition to that, Rule 7(7) of the Probate and Administration Rules requires that a person with a lesser right to administration ought to obtain the consent of the person or persons with a greater priority to administration, or get that person or persons to renounce their right to administration or cause citations to issue on them requiring them to either apply for representation in the estate or to renounce their right to so apply.* 30. *THAT the late FRANCIS KIMUTAI TOO alias FRANCIS KIMUTAI KIPTOO had four (4) children namely; -* 1. *Mark Meli Too* 2. *Gideon Kipkoech Mutai Too* 3. *Caroline Jerop Too* 4. *Fridah Chepchirchir Too* 31. *THAT the matter herein is contested and thus cannot be confirmed.* 32. *THAT Edward Kipkemboi Mutai, Joy Waithera, Lameck Kipyego Kogo, Celestine Chepchirchir Mutai, Joseph Kiprugut Mutai, Grace Winnie Chebet, Sammy Mutai and Michael Kemboi Kimutai are strangers to me and my co-objectors.* 33. *THAT until the issue of paternity of the persons listed herein is determined through DNA testing, the true beneficiaries of the estate cannot be established and therefore the grant herein cannot lawfully be confirmed.* 34. *THAT the Late Jane Nekesa Kimutai was not a spouse of the late FRANCIS KIMUTAI TOO alias FRANCIS KIMUTAI KIPTOO as admitted by the Petitioner in paragraph 13 of her Replying Affidavit sworn on 27/2/2026 and the honorable Court ruled on that issue.* 35. *THAT I and my Co-Objectors did not sign form 38 and 37B consenting to the mode of distribution neither were we involved in the succession proceedings.* 36. *THAT the deceased left behind the following asset;* 1. *Eldoret Municipality Kapyemit Block 20/99* 2. *Uasin Gishu Illula 236* 3. *Kapyemit Block 20/96* 4. *Kipsingori Farm Lr. 2177/133* 5. *Kiplombe Farm Block 2/86* 6. *Miti Mingi/ Mbaruk Block 3/12565 (Barut)* 7. *Njoro/Ngata Block 2/6706 H) Lalwet Center Plot* 8. *Money In Accounts in Various Banks and Shares In Various Companies* 37. *THAT the said assets shall be shared among the beneficiaries as follows; attached therein)* 38. ***THAT*** *we did not consent to the petition for the grant of letters of administration by the Petitioner herein.* 39. ***THAT*** *the matter herein is contested thus cannot be confirmed until the issues therein are settled.* **Decision** 1. Before the Supreme Court progressively and jurisprudentially transformed the procedural protocols on the right to appeal as between the High Court and Court of Appeal no litigant aggrieved or otherwise had an automatic right of appeal between the two Superior Courts. However, the Apex Court in **Wandi vs Muchira (Suing as the Administrator Ad Litem of Jane Muthoni Muchira) (Petition 202 of 2024) [2026] KESC 2 KLR)** in which the Court made the following observations. Thus; *“The Court examined the conflicting judicial opinions regarding the requirement for leave to appeal in succession matters. It noted that while section 50(1) of the Law of Succession Act provided for appeals from the Magistrate’s Court to the High Court, the Act was silent on appeals from the High Court's original jurisdiction to the Court of Appeal.* *The Court held that article 164(3)(a) established the appellate jurisdiction of the Court of Appeal over the High Court. It observed that requiring leave as a prerequisite for lodging an appeal when not expressly stipulated by statute was a matter of judicial practice that created a barrier to access to justice.* *The Court agreed with the appellant that denying an automatic right of appeal to litigants who start their cases in the High Court, while granting it to those in subordinate Courts (who appeal to the High Court), was discriminatory under article 27 and violated the right to access to justice under article 48 of the Constitution.* *The Supreme Court concluded that a litigant had an automatic right of appeal, without the need for leave, to the Court of Appeal against a decision of the High Court exercising its original jurisdiction in succession matters.”* 1. As the Applicants are desirous of seeking the second opinion before the Court of Appeal on this inheritance dispute I find no reason to stop on their way going by the *stare decisis* from the Supreme Court of Kenya. The Application for a stay of execution pending appeal which is highly discretionary be and is hereby denied with no orders as to costs. **DATED, SIGNED AND DELIVERED THIS 20TH DAY OF JULY 2026.** **…………………………..………** **R. NYAKUNDI** **JUDGE**