https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7956

In re Estate of Arap Busienei (Deceased) (Succession Cause 220 of 2004) [2026] KEHC 7956 (KLR) (5 June 2026) (Ruling) Neutral citation: [2026] KEHC 7956 (KLR) Republic of Kenya In the High Court at Eldoret Succession Cause 220 of 2004 JRA Wananda, J June 5, 2026 IN THE MATTER OF THE ESTATE OF THE LATE KIPKEMEI ARAP BUSIENEI Between Salome Jeruto Busieni 1st Administrator Clara Jemutai Busienei 2nd Administrator Sela Jepwambok Ruto 3rd Administrator Michael Kipkurgat Maswai 4th Administrator and Julius Kipkiyeny Kemei Objector and Baliach Stanley K 1st Applicant Jacob Mibei 2nd Applicant Salomon Kipkemboi Lagat 3rd Applicant Cleophas Cheruiyot Saina 4th Applicant Robert Kiptoo 5th Applicant Hellen Jelagat Bitok 6th Applicant Samoei Lizzy Chebet 7th Applicant Ruling 1.This Ruling deals with yet another case of alleged purchase of land from survivors of a deceased person in whose name the land is still registered, and before the estate has been distributed by the Court. The same question keeps on rearing its ugly head, can such “purchasers” maintain a claim for enforcement of such purchases within the Succession Cause filed for purposes of administration and distribution of the estate of the deceased? 2.The background of this matter is that the deceased, Kipkemei Busienei, died on 13/01/2000. By the Petition dated 15/03/2004 filed through Messrs Kalya & Co. Advocates, the 1st and 2nd Petitioners, Salome Jeruto Busienei and Clara Jemutai Busienei, describing themselves as widows of the deceased, applied for the Grant of Letters of Administration to manage the estate of the deceased. In the Petition, the Petitioners listed a total 10 survivors of the estate, namely, the two of them and 8 children, and the parcel of land as Nandi/Mutwot/183 measuring 22.86 hectares (hereinafter referred to as “the property”) as the only asset comprising the estate. 3.The Grant dated 22/06/2006 was then issued although I note that the same was issued in the names of 4 persons in total as joint Administrators, since apart from the 1st and 2nd Petitioners, the abovenamed Sela Jepwambok Ruto and Michael Kipkurgat Maswai were also included as co-Administrators. 4.The Administrators’ attempts to obtain confirmation of the Grant were however frustrated when the abovenamed Objector, Julius Kipkiyeny Kemei, describing himself as a son of the deceased with the 1st widow, the said Jeruto Salome Busienei, and represented by Messrs Chepkonga & Co. Advocates, emerged protesting the Administrators’ alleged unlawful selling of some properties of the estate. It also transpired that the Objector, the said Julius Kipkiyeny Kemei, had also filed a separate Succession case in respect to the same estate, namely, Eldoret Succession Cause No. 123 of 2004. This separate Succession Cause was therefore consolidated with the instant Cause. 5.Since some of the Administrators opposed the Objector’s claim of being a son of the deceased or a beneficiary, despite having included him in the Petion, the matter proceeded to trial. In the end, Githinji J, by his Ruling delivered on 8/03/2021, ruled that the Objector was a dependent of the deceased and ordered that he be included in the distribution of the estate. In view thereof, the parties thereafter presented their respective proposed modes of distribution to the Court for determination. 6.It however again transpired that the said Eldoret Succession Cause No. 123 of 2004, already consolidated with this Cause, had also been somehow, subsequently, been again transferred to Kapsabet and renamed Kapsabet High Court Succession Cause No. 5 of 2023. That Kapsabet Cause was thus also re-transferred to this Court, and again consolidated with the instant Cause. 7.The matter was thereafter referred to Court Annexed Mediation which I however gather did not achieve much progress. With the matter still at some kind of stalemate, the Applicants, through Messrs N.K. Cheptumo & Co. Advocates, filed the instant Summons dated 1/07/2025, the subject of this Ruling, seeking orders as follows:i.[…….] spent.ii.That there be a stay of proceedings and all parties, including the Applicant/Objectors be referred back to mediation which should be open to accommodate all interested parties, including the Applicants/Objectors to this case with the guidance of a Court Annexed Mediator.iii.That the Administrators include the Applicant/Objectors in the proposed mode of distribution so submitted pursuant to their rightful shares/portions they occupy in the estate.iv.That the mode of distribution specifically in respect to Nandi/Mutwot/183 reflects the status quo on the ground.v.Any order that may be just and in the interest of justice.vi.That costs of this Application be at Cause. 8.The Application is supported by the Affidavit sworn by the 7th Applicant, Samoei Lizzy Chebet, in which she deponed that sometime in 2004, the Petitioners approached them and requested them to purchase portions of the said property, Nandi/Mutwol/183, with the aim of raising funds to file the instant Succession Cause. She deponed that they (Applicants) then entered into Sale Agreements in respect to the portions, which were attested by family members, village elders and the area Chief, and they (Applicants) took possession of, and settled on their respective portions. She urged that it was by consent of all the parties that during execution, they (Applicants) would be included in the distribution of the property (estate) as purchasers, but that a change of tune by the Petitioners is what has triggered the filing of the Application. She deponed further that they have been living and undertaking farming activities on their said portions of the property continuously, undisturbed, for 21 years now, they have also built permanent structures as their homes, and some of them have even buried their loved ones thereon. She therefore urged that the act of leaving out the Applicants from the modes of distribution presented by the Petitioners amounts to fraud. 9.The Application is opposed by the 3rd Administrator, Sela Jebwambok Ruto, by way of the Replying Affidavit she swore on 24/01/2026, and filed through the said Messrs Kalya & Co. Advocates. In the Affidavit, she deponed that this Court lacks the jurisdiction to hear the Applicants as their case involves land ownership which is outside the purview of this Court. She also denied that the Applicants purchased the respective portions with the consent of all the beneficiaries of the estate, and also pointed out that the deceased, at the time of his death in the year 2000, was, and still is, the registered owner of the entire property and his estate has not been distributed, yet the Applicants admit to entering into the Agreements of Sale between 2003 and 2005, long after the death of the deceased. She contended that any dealing with the property of a deceased person before a Grant has been obtained constitutes intermeddling under Section 145 of the Law of Succession Act. According to her, the Applicants’ occupation of the land and the alleged construction of permanent structures was done at their own risk and without lawful authority. She also asserted that the Applicants were aware that the property belongs to the deceased and that Succession was yet to be undertaken but still chose to proceed with an illegal transaction, and that the Court cannot enforce an illegality. The 3rd Petitioner pointed out further that the Applicants were, by the order dated on 16/03/2009, restrained from interfering with the same estate and thus, not to enter, occupy or take possession of the property, and that despite this order, the Applicants forcefully gained entry into the property using crude weapons, and machetes. She also denied that the Applicants had buried anyone in the property, which act, she stated, even if true, cannot stop the Court from ordering exhumation. She also denied the Applicants’ allegation of over 21 years undisturbed occupation, which act, she also asserted, even if true, does not cure the illegality, and also denied knowledge of any agreement to include the Applicants in the distribution. 10.The Objector, through the said Messrs Chepkonga & Co. Advocates, also opposed the Application by way of the Replying Affidavit he swore on 17/09/2025. She deponed that the Applicants are neither dependents of the deceased, nor beneficiaries of the estate, and that they did not purchase any portion from the deceased as the Sale Agreements relied on bear dates that are long after the deceased died in 2000. He, too, contended that the actions of the Applicants amount to intermeddling with the estate of a deceased person, which is prohibited under the Law of Succession Act. He further asserted that the Applicants, being strangers, cannot dictate to the Court on what should be done, and that their claims should be directed to the individuals that they alleged to have purchased the portions from. 11.I then gave the parties leave to file written Submissions. The Applicants and the Objectors both filed the Submissions dated 2/10/2025, respectively. I had not however come across any Submissions filed by the Petitioners/Administrators by the time I concluded writing this Ruling. 12.The Applicant’s Counsel, clearly realizing the odds stuck against his client’s case in respect to the issue of their locus, cleverly proceeded on a different tangent from what is contained in the Application. He basically dwelt on impressing on the Court the need to promote the policy and spirit of encouraging alternative dispute resolution (ADR) mechanisms such as “Mediation”. He cited the various provisions of Kenyan law, including Article 159(2)(c) of the Constitution, encouraging application of such ADR mechanisms, and pleaded with the Court to invoke its inherent powers under Section 47 of the Law of Succession Act, and refer the matter to Mediation noting the alleged longevity of the Applicants’ occupation of the alleged portions, and the huge investments they have made thereon. 13.As regards the Objector’s Submissions, apart from citing authorities, it is basically a restatement of arguments already advanced in his Replying Affidavit. Determination 14.The broad issue that arises for determination in this matter is “whether the Applicants have demonstrated sufficient locus and justification to persuade the Court to refer the parties to Mediation for discussions.” 15.The first item that I have to grapple with is whether the Applicants possess the locus enabling them to file the instant Application in this Cause in the first place. This is because the Applicants are in the nature of creditors claiming to have purchased portions of a parcel of land from the estate of the deceased. I therefore need to satisfy myself, considering that the mandate of the probate Court under the Law of Succession Act is limited, whether the Applicants’ claims are not of the nature that ought to be placed before the Environment & Land Court (ELC) which is the Court clothed with the jurisdiction to hear and determine disputes touching on purchase, acquisition, occupation, use and ownership of land. 16.On this issue, I cite, for instance, the case of In Re Estate of Mbai Wainaina (Deceased) [2015] eKLR, in which W. Musyoka J, held as follows:“Even if there was material establishing that there was such a trust, I doubt that the resolution of this issue would be a matter of the probate court. The mandate of the probate court under the law of succession Act is limited. It does not extend to determining issues of ownership of property and determination of trusts. It is not a matter of the probate court being incompetent to deal with such issues but the provisions of the law of succession and the relevant subsidiary legislation do not provide a convenient mechanism for determination of some issues. A party who wishes to have such matters resolved ought to file a substantive suit to be determined by the Environment and Land court. Consequently, and for the reasons above stated, I wish to find and hold that this court has no mandate to resolve the proprietary interest on land based on the alleged trust”. 17.A.K. Ndungu J, similarly, in the case of In re estate of Solomon Mwangi Waweru (deceased) (2018) eKLR, remarked as follows:“Therefore, claims by interested third parties against the estate of the deceased ought to be litigated in separate proceedings. It is imperative that any adverse claims against the estate of a deceased person are determined through settlement or where inapplicable, through suits against the administrator (s) of the estate and not through an objection like the one before court”………………………………………………..“It is my opinion that the fact that the applicant has laid claim to the estate does not give rise to an automatic right to have the distribution of the property stayed by the succession cause. The applicant ought to disclose a legitimate claim which needs to be determined by the Environment and Land court. The succession court would then proceed with the administration of the estate in respect of other properties not affected by the conservatory order if obtained awaiting the outcome of the suit”. 18.W. Musyoka J, again, in the case of In the matter of the Estate of Stone Kakhuli Muinde (Deceased) [2016] eKLR. stated as follows:“24.The probate process is meant to be largely administrative, where the documents lodged in the cause are scrutinized administratively by court officers before certain instruments are processed and executed by relevant judicial officers before being issued to the parties. It is intended that there be minimal court appearance. The whole process is tailored to be non-contentious, and the only contemplated court appearance is at the stage of the confirmation of the grant of representation. In that scenario then there would be no need to join any person or entity to the succession cause.25.The cause can and does, as a matter of course, turn contentious. To facilitate distribution of the estate, the court should identify the persons who are entitled to inherit from the estate of the deceased and the assets to be shared out amongst the person entitled. Disputes often arise on those issues. It may become necessary for the court to determine whether a particular person is entitled to a share in the estate of the deceased or not. An issue may also arise whether some asset formed part of the estate of the deceased or not.26.The Act and the Rules have elaborate provisions on resolving such questions, and to settle them there would be no need to bring in persons who have no direct interest in the matter, especially those who are not family members. Whether a person is entitled to the part of the estate is an issue to be resolved without joining other persons to the matter.27.With regard to the assets, one of the questions that may present itself would be the ownership of the assets presented as belonging to the deceased. An outsider may claim that the property does not form part of the estate and therefore it need not be placed on the probate table. The resolution of such questions do not necessitate joinder into the cause of the alleged owner to establish ownership. It is not the function of the probate court to determine ownership of the assets alleged to be estate property. That jurisdiction lies elsewhere.28.Such claims to ownership of alleged estate property, as between the estate and a third party, should be resolved through the civil process in a civil suit properly brought before a civil court in accordance with the provisions of the Civil Procedure Act and the Civil Procedure Rules. This could mean filing suit at the magistrates’ courts, or at the Civil or Commercial Divisions of the High Court, or at the Environment and Land Court. If a decree is obtained in such suit in favour of the claimant, then such decree should be presented to the probate court in the succession cause so that that court can give effect to it.29.It is the failure to observe the foregoing, and allowing non-survivors or beneficiaries of the estate to prove their claims against the estate within the probate court that has often made succession causes complex, unwieldy and endless. It is by the same token that it had become necessary for the court to allow joinder of persons to the succession cause who ideally ought not to be party to the cause in the first place.” 19.I fully associate myself with the views enunciated in the said cases and I am satisfied that the claims made in the present Application are matters that are squarely within the province of the Environment & Lands Court (ELC), and not this High Court sitting as a Probate Court. I say so because Article 162(b) of the Constitution of Kenya 2010 expressly gives to the ELC the sole mandate and jurisdiction to determine issues of ownership, use and occupation of land. The Applicants may therefore consider moving to the ELC to determine those matters although they may still face some legal hurdles even at the ELC, including possibly, the hurdle of limitation of time, considering the long period of time they claim to have been in occupation of the alleged portions. The Applicants, once they file the suit at the ELC, may then try their luck in persuading this Court to stay these proceedings in the meantime. If and when the Environment & Lands Court rules in their favour and confirms their claims, the Applicants may return to this Court for appropriate orders. 20.In any event, as correctly also pointed out by the 3rd Administrator, some persons whom I presume to be some of the Applicants herein, specifically, Cleophas Saina and Robert Kiptoo, presumably, the 4th and 56th Applications, were, by the order dated on 16/03/2009, already restrained from interfering with the estate herein, nor to enter, occupy or take possession of the property. 21.On a different point, the Applicants have attached some Agreements of Sale, some home-made, to support their claims that they purchased the subject portions of the property. I however observe that the Agreements indicate that the Applicants purportedly purchased those portions long after the deceased had already died in the year 2000, and purchased either from the 1st Petitioner, Salome Jeruto Busienei, who was the 1st widow, and who seems to have gone on an illegal land selling spree after the demise of the deceased, and others purchased from third parties who do not even seem to be members of the family of the deceased. I never came across any Agreement which even remotely indicates that any of the Applicants purchased any portions directly from the deceased during his lifetime. 22.Since the Grant issued herein has never been confirmed and the estate has therefore never been distributed, any purchasers, together with whoever within the family of the deceased may have purported to sell to them any portion of the land, appear to have committed the offence of “intermeddling” with the property of a deceased person, an act expressly prohibited under Section 45 of the Law of Succession Act as follows:“(1)Except so far as expressly authorized by this Act, or by any other written law, or by a grant of representation under this Act, no person shall, for any purpose, take possession or dispose of, or otherwise intermeddle with, any free property of a deceased person.(2)Any person who contravenes the provisions of this section shall—(a)be guilty of an offence and liable to a fine not exceeding ten thousand shillings or to a term of imprisonment not exceeding one year or to both such fine and imprisonment; and(b)be answerable to the rightful executor or administrator, to the extent of the assets with which he has intermeddled after deducting any payments made in the due course of administration.” 23.Regarding this issue of “intermeddling”, Gikonyo J, in the case of Re Estate of M’Ngarithi M’Miriti [2017] eKLR, stated as follows:“Whereas there is no specific definition provided by the Act for the term intermeddling, it refers to any act or acts which are done by a person in relation to the free property of the deceased without the authority of any law or grant of representation to do so. The category of the offensive acts is not heretically closed but would certainly include taking possession, or occupation of, disposing of, exchanging, receiving, paying out, distributing, donating, charging or mortgaging, leasing out, interfering with lawful liens or charge or mortgage of the free property of the deceased in contravention of the Law of Succession Act. I should add that any act or acts which will dissipate or diminish or put at risk the free property of the deceased are also acts of intermeddling in law. I reckon that intermeddling with the free property of the deceased is a very serious criminal charge for which the person intermeddling may be convicted and sentenced to imprisonment or fine or both under section 45 of the Law of Succession Act. That is why the law has taken a very firm stance on intermeddling and has clothed the court with wide powers to deal with cases of intermeddling and may issue any appropriate order(s) of protection of the estate against any person.” 24.In view of the foregoing, and particularly on the ground of lack of jurisdiction, I decline to entertain the instant Application. Final Orders 25.The Applicants’ Summons dated 1/07/2025 is hereby dismissed but with no order on costs. DELIVERED, DATED AND SIGNED AT NAIROBI THIS 5TH DAY OF JUNE 2026…………………WANANDA JOHN R. ANUROJUDGEDelivered in the presence of:Ms Kigen for the 2nd and 4th AdministratorsN/A for the Objector-BeneficiaryCourt Assistant: Rodgers Tshombe