https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11169

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT BOMET** **SUCCESSION CAUSE NUMBER E049 OF 2024** **IN THE MATTER OF THE ESTATE OF KIPRONO ARAP CHEPKWONY (DECEASED)** **SALLY CHEPKIRUI CHEPKWONY …………………. 1ST PETITIONER** **JOSEPH KIPROTICH ARAP RONO ………………… 2ND PETITIONER** **VS** **J JOHN KIRUI ……………..………………………….…… PROTESTOR** **RULING** 1. In this matter, a Grant was issued to the Petitioners on 10th September 2025. The Petitioners then filed an Application for Confirmation of Grant dated 3rd November 2025 which contained their preferred mode of distribution in regards to the deceased’s estate being KERICHO/MOGOGOSIEK/1050. **The Protest.** 1. Through his Affidavit of Protest dated 5th November 2025, the Protestor stated that he purchased KERICHO/MOGOGOSIEK/1050 between the years 2002 and 2006 from the widow and son of the deceased. That at the time of purchase, the said property was on the verge of being proclaimed by Kenya Industrial Estate as the same had been charged to it. The Protestor further stated that it was a term of the Sale Agreement that to forestall the charge from proclaiming the said property that he offset the amount. 2. It was the Protestor’s case that at the time of executing the Sale Agreement, the 1st Petitioner alongside Sofia Chepkwony, Charles Rono and Isaiah Rono all beneficiaries of the deceased’s estate had petitioned for Letters of Administration. That they omitted him as a beneficiary. It was the Protestor’s further case that he had occupied KERICHO/MOGOGOSIEK/1050 for a period of over 25 years and had developed it. 3. Through his written submissions dated 4th June 2026, the Protestor submitted that the deceased was indebted to Kenya Industrial Estate for the sum of Kshs 1,300,000/= in which he charged KERICHO/MOGOGOSIEK/1050 as security. That as a term of the Sale Agreement, he offset the amount owed to the Chargee and duly performed other obligations as per the Sale Agreement. 4. It was the Protestor’s submission that he was creditor to the deceased’s estate and he relied on **re Estate of Atibu Oronje Asioma (Deceased) (Succession Cause 312 of 2008) [2022] KEHC 11046 (KLR).** It was the Protestor’s further submission that the Petitioners had a duty to settle debts of the deceased’s estate. He relied on section 86 of the Law of Succession Act and **re Estate of Mukhobi Namonya (Deceased) [2020] KEHC 9045 (KLR).** **Response** 1. Through their Replying Affidavit dated 15th May 2026, the Petitioners stated that they were strangers to the land transactions purportedly entered into between the Protestor and the deceased’s widow. That prior to these proceedings, the Protestor had initiated citation proceedings at Sotik Law Courts but withdrew the same after becoming aware of the existence of the present proceedings. 2. It was the Petitioners’ case that they were aware of the deceased’s estate liability being Kenya Industrial Estate and had catered for it in their proposed mode of distribution. That if it was established that the Protestor offset any amount, then they were willing to refund such amount. It was the Petitioners’ further case that the alleged Sale Agreement did not constitute a valid Sale Agreement that was capable of conferring proprietary interest over the deceased’s estate as the same was deficient and wanting in material particulars. 3. Through their written submissions dated 5th June 2026, the Petitioners submitted that the Protestor was not a beneficiary of the deceased’s estate. That Sale Agreements did not confer any proprietary rights over the deceased’s estate 4. I have keenly gone through the record, the Affidavit of Protest dated 16th April 2024, the 4th Petitioner’s Replying Affidavit dated 10th March 2025 and the Objector’s written submissions dated 30th September 2025. The only issue for my determination was whether the Objection had merit. The Petitioners further submitted that they were not the vendors in the alleged sale of the deceased’s estate. 5. It was the Petitioners’ submission that the vendors in the alleged sale were not the Petitioners and could not bind the estate. That no beneficiary consented to the alleged sale. It was the Petitioners’ further submission that the Protestors’ claim fell outside succession proceedings. 6. The Petitioners submitted that the Protestor had failed to demonstrate any legal basis for his inclusion as a beneficiary of the deceased’s estate. 7. I have gone through the entire record, the Protest dated 5th November 2025, the Replying Affidavit dated 15th May 2026, the Petitioners’ written submissions dated 5th June 2026 and the Protestor’s written submissions dated 4th June 2026. The only issue I have sieved for my determination was whether the Protest dated 5th November 2025 had merit. 8. The Protestor anchored his Protest on the ground that he was a creditor of the deceased’s estate by virtue of purchasing the same (KERICHO/MOGOGOSIEK/1050) from the deceased’s widow and son. At this stage, it is salient to state that for this court to determine the Protest on merit, it would have to delve into the ownership dispute of the estate which would include proof of the alleged purchase or sale. 9. This court lacks the jurisdiction to hear and determine the Protestor’s claim as the same is reserved for the Environment and Land Court. I am in total alignment with **re Estate of Stone Kathuli Muinde (Deceased) [2016] KEHC 3725 (KLR)** where the court held that: - ***“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.*** ***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”.*** (Emphasis mine) 1. In the case of **re Estate of Julius Ndubi Javan (Deceased) [2018] KEHC 8523 (KLR**) Gikonyo J. held: - ***“The primary duty of the Probate Court is to distribute the estate of the deceased to the rightful beneficiaries. As of necessity, the estate property must be identified. Thus, where issues of ownership of the property of the estate are raised in a succession cause, they must be resolved before such property is distributed. And that is the very reason why rule 41(3) of the Probate and Administration Rules was enacted so that claims which are prima facie valid should be determined before confirmation.”*** 1. That said, I am alive to the dispute regarding the ownership of KERICHO/MOGOGOSIEK/1050. The Protestor is at liberty to approach this court for consideration as beneficiary/creditor of the deceased’s estate under **section 66 of the Succession Act** after he has determined or regularized the ownership status of KERICHO/MOGOGOSIEK/1050. 2. In the end, this court lacks the jurisdiction to determine the Protest dated 5th November 2025 and the same is struck out. Each party to bear its own costs. **Ruling delivered, dated and signed at Bomet this 23rd day of July, 2026.** **.................................** **HON. JULIUS K. NG’ARNG’AR** **JUDGE** **Ruling delivered in the presence of:** **Siele/Zachary (Court Assistants)** **Chepkorir for the Petitioners** **Sang for Protestor**