https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10893

In re Estate of Rutto (Deceased) (Succession Cause E117 of 2023) [2026] KEHC 10893 (KLR) (20 July 2026) (Ruling) Neutral citation: [2026] KEHC 10893 (KLR) Republic of Kenya In the High Court at Eldoret Succession Cause E117 of 2023 RN Nyakundi, J July 20, 2026 IN THE MATTER OF THE ESTATE OF MICHAEL RUTTO (DECEASED) Between Magdalena Kwambai Petitioner and Helena Jepkangor Kipyego 1st Objector Rose Jeptanui Ruto 2nd Objector Monica Jerotich Boit 3rd Objector mary Ruto 4th Objector Salome Jepkoech Ruto 5th Objector Ruling 1.Before this Court is Notice of Motion dated 9th March 2026, brought under Order 45 Rule 1 of the Civil Procedure Rules, Rule 63 of the Probate and Administration Rules, Sections 1A, 1B, 3A and 80 of the Civil Procedure Act, and all other enabling provisions of the law. the Applicant seeks the following orders:a.That this Honourable Court be pleased to review and/or set aside part of the judgment delivered on 21st February 2025 in so far as it holds that the Objectors have inheritance rights over land parcel number Sergoit/Elgeyo Border Block 1 (Beliomo)/335.b.That this Honourable Court be pleased to rectify the said judgment by finding that land parcel number Sergoit/Elgeyo Border Block 1 (Beliomo)/335, being a resultant subdivision of land parcel number Sergoit/Elgeyo Border Block 1 (Beliomo)/52 which was registered in the name of the deceased in or about the year 1997, forms part of the estate of the deceased Michael Rutto.c.That this Honourable Court be pleased to find that the Objectors did not establish the existence of any trust over land parcel number Sergoit/Elgeyo Border Block 1 (Beliomo)/335.d.That this Honourable Court be pleased to direct that the said parcel of land be distributed as part of the estate of the deceased in accordance with the provisions of the Law of Succession Act.e.That costs of this Application be provided for. 2.The application is premised on the following grounds:a.That the judgment delivered on 21st February 2025 contains errors apparent on the face of the record, particularly in directing that the Objectors be considered beneficiaries of land parcel number Sergoit/Elgeyo Border Block 1 (Beliomo)/335 without first determining whether the said property forms part of the estate of the deceased.b.That the suit property known as Sergoit/Elgeyo Border Block 1 (Beliomo)/335 is a resultant subdivision of land parcel number Sergoit/Elgeyo Border Block 1 (Beliomo)/52, which was registered in the name of the deceased during the lifetime of his father in or about the year 1997.c.That the said subdivision which resulted in parcel number Sergoit/Elgeyo Border Block 1 (Beliomo)/335 was undertaken in or about the year 2014, long after the deceased had been registered as proprietor of the original parcel.d.That the Court in paragraph 28 of the judgment misapprehended the nature of the transactions relating to the subdivision of land parcel number Sergoit/Elgeyo Border Block 1 (Beliomo)/52, by referring to the same as sale transactions conducted by the deceased, whereas the subdivision and transfer were undertaken pursuant to the wishes of the deceased’s father to allocate approximately one acre to the second house, the father having had two households.e.That the Objectors alleged that the deceased held the property in trust for them but failed to tender cogent evidence establishing the existence of such trust.f.That the judgment did not apply the legal principles governing customary trust.g.That the Court consequently directed distribution of the suit property without making a definitive finding as to whether the deceased held the property in trust for the Objectors.h.That unless the judgment is reviewed, the estate of the deceased and his dependents stand to suffer grave prejudice as property lawfully belonging to the deceased may be distributed to persons who have not established any legal entitlement thereto.i.That it is therefore just, fair and in the interests of justice that this Honourable Court reviews its judgment. 3.In response to the application is the Replying Affidavit of Mrs. Helena Jepkangor Kipyego who avers as follows:a.That I am the 1st Objector/Respondent hereto hence competent to depone to the matters herein.b.That I have read and been read to and indeed explained and understood the intent, purport and meaning of the application dated 9th March 2026.c.That first and foremost it is not lost that the application before Court is an afterthought misplaced and indeed lacks merit to have been filed in the first place.d.That it is not true that the decision of the Court was to have the sisters of the deceased considered. It is a right that accrued in their father’s estate though title is in the name of our deceased brother.e.That in reply to paragraph 3 the established of trust was indeed confirmed both during evidence in chief through the objector’s witness and also documentary evidence.f.That in reply to the averments that the estate in issue is in reference to Michael is not in issue but it flows from a sequence of events based on trust and traditional belief on family bounding vis a vis his sisters. the law indeed guarded against the Petitioner’s mischief.g.That in response further to the averment above the deceased Michael never bought a parcel of land. he received it in trust for his benefit and his sisters. This averment was confirmed on several minutes written and spoken and evidenced both ways. An assumption as per by the applicants does not hold water at all.h.That the judgement dated 21st February 2025 does not have any errors at all.i.That it is not disputed that the Partriach’s title was subdivided by Michael or the deceased from the original title Sergoit/Elgeyo Border Block 1 (Beliomo)/52. This the deceased sold 1 acre out of his entitled acreages which will be taken into consideration at the distribution matrix.j.That it behooves to note that the applicant appreciates his father yet at the same time denounces him when he gave instructions that he holds the title on his own behalf and on behalf of his siblings. This is double speek.k.That indeed the subdivision as done without consulting the other beneficiaries the sisters of the deceased which was indeed uncouth and disrespectful to the sister to have done. However, it would only be prudent that he did so on his part of entitlement.l.That it must be noted that the deceased was a well-organized and respectful parent when he separated his two family set up and each household given their title. The title now before Court belong to this household whereof one child cannot abrogate to himself the entire parcel by virtue of his wife’s imagination to solely belong to them to the exclusion of the true beneficiaries.m.That the applicant is totally misreading the Judgement and completely failing to appreciates the totally of the trial Courts Judgement in holding that the subject parcel belongs to the family Partriach but not Michael who was but a transcient.n.That indeed before Court there is nothing to Review but to have the application dismissed with costso.That it is not disputed the family Partriach wanted to have transferred his land to his 1st born daughter Hellena. But it was Hellena and her husband and the Chief that convinced him to transfer to his only son which he did albeit gradgingly. And indeed his doubts have come to fore on the deceased's wife behaviour and her children.p.That they transfer perse was not a gift or at all but was to hold in trust for himself and his sisters.q.That the Court indeed based on the objection before Court identified who the beneficiaries are. The wife of the deceased Michael has been considered as one of the beneficiaries of that title. Michael's children will fall under their mother's beneficial interest as one unit vis a vis the other sisters to Michael.r.That it would certainly at the distribution matrix the Court will consider that all parcels sold by Michael are parcels that form part of his share of the estate after distribution.s.That in response to paragraph 24 of the supporting Affidavit no evidence was ever adduced by the applicant that the deceased transferred 1 acre to equalize distribution those are the applicant's imagination as put by myself the applicant bought the beneficiary of that 1 acre for mischievous intent to manage her husband. Those are their family unit issues.t.That as above there is nothing to Review but to dismiss this application with costs. 4.In response to the Replying Affidavit is the Supplementary Affidavit of Magdalena Kwambai who stated as follows:a.That I am the Petitioner/Applicant herein and therefore competent to swear this Supplementary Affidavit.b.That I have read the Replying Affidavit sworn by Helena Jepkangor Kipyego and wish to respond only to matters therein requiring clarification and to place before this Honourable Court new documentary evidence.c.That subsequent to the filing of the application herein, I obtained from the Lands Registry the green card relating to land parcel number Sergoit/Elgeyo Border Block 1 (Beliomo)/52; being the original parcel from which the suit property is derived.d.That the said green card confirms that land parcel number Sergoit/Elgeyo Border Block 1 (Beliomo)/52 was registered in the name of the deceased in or about the year 1997.e.That the said green card further confirms that the said parcel was subdivided in or about the year 2014, resulting in the creation of several resultant parcels including:a.Sergoit/Elgeyo Border Block 1 (Beliomo)/335, andb.Sergoit/Elgeyo Border Block 1 (Beliomo)/330.f.That in response to paragraph 9 of the Replying Affidavit, it is not true that the deceased sold one (1) acre of land.g.That the said green card shows that the portion alleged to have been sold was transferred and registered as land parcel number Sergoit/Elgeyo Border Block 1 (Beliomo)/330.h.That the said parcel number Sergoit/Elgeyo Border Block 1 (Beliomo)/330 is registered in the name of Stanley Kipkorir Ruto.i.That in response to paragraph 19 of the Replying Affidavit, the said transfer of approximately one (1) acre did take place and is reflected in the official land records as shown in the annexed green card.j.That the transfer reflected in the said green card was not a sale transaction but a transfer effected during subdivision of the original parcel.k.That the said green card and the details of the subdivision were not within my knowledge at the time of the hearing and could not reasonably have been obtained earlier despite due diligence.l.That the said document constitutes official land registry records and accurately reflects the history of dealings in respect of the original parcel. Decision 5.This matter was heard and determined but soon thereafter the parties were referred to mediation which was being facilitated by Dr. Nyale. A report to that effect was heard by the Court out of the three mediations being facilitated by the Court appointed Mediator. The covenant of the mediation entailed as follows:a.That 8 acres of the land to go the late Michael’s family; that is the wife Magdalene and her 7 children, wile 4 acres to go to the surviving 4 sisters of the late Michael who are married elsewhere and the 5th sister whose marriage failed to retain 1 acre which was already given to her by their late father Ruto Chelel Chebelio. 6.From the record the attendance list is attached for purpose of showing evidence on what transpired on the three mediations held giving support that there was inclusivity and family participation before the decision by the same members was arrived at in the presence of the Court appointed Mediator. Thereafter the Advocate of the High Court seemed to be leading a different narrative in so far as the scheme of distribution is concerned. Some of the issues being raised by the Learned Counsel Mr. Seneti Oburu is about some threat or violation of Art 50 during the process of mediation. However, it should not be forgotten there was a complete trial and evidence adduced by witnesses before this Court with regard to the issues touching on the matter of the estate of the late Michael Ruto. This Court in appreciating the evidence on 21st day of April 2025 ruled as follows:a.It would be contrary to the principles of equity and the Constitutional imperatives of gender equality to allow rigid adherence to land registration to defeat the legitimate expectations of the deceased's sisters. These women were not provided for in their father's estate, and their brother’s registration as sole proprietor should not serve as an instrument to perpetuate their disinheritance. This estate in the legal dimension and definition does not fit into the spectrum of matrimonial property of the deceased Michael Ruto to exclusively devolve to Magdaline, the spouse. Therefore, there is need for a just definition of their father's property with due provision being made to the widow of Michael Ruto and token shares to the named beneficiaries who are the Objectors and daughters to Ruto Chelel Chebelyo. This Court, guided by Article 27 of the Constitution and the principles established in Mary Rono v Jane Rono & another [2005] eKLR, must ensure that customary practices do not result in the continued marginalization of women in matters of inheritance.b.Consequently, this Court directs that the Objectors and the Petitioner shall, within 30 days of this judgment, present to the Court a proposed distribution model that recognizes both the widow's rights as well as the legitimate interests of the deceased's siblings, particularly his sisters. The parties are encouraged to engage in family mediation to arrive at an amicable arrangement that respects both the rights of the deceased’s immediate family and the inheritance claims of his siblings.c.Should the parties fail to present an agreed-upon distribution model within the stipulated time, this Court shall exercise its discretion to determine an equitable distribution that protects the interests of all parties, with particular attention to ensuring that the deceased's sisters are not denied their rightful share of their father's inheritance merely because of their gender or the fact that the property was registered in their brother’s name.d.The costs of these proceedings shall be borne by the estate. 7.There was no distribution matrix shared with the Court and it was at that instant this matter became a subject of multiple applications when it was strongly felt that the parties under Article 159(2)(c) of the Constitution be facilitated to come up with an amicable settlement. First and foremost, it must be recognized this is an ancestral land in which in the Court’s own appreciation of the history of the root title supported by the evidence from the beneficiaries held the view that the equality clause under Art 27 (1) & (4) of the Constitution was violated. 8.It is trite law in Kenya way back when the Court of Appeal in Rono vs Rono (supra) delved into the question of customary law which denied women including married daughters the right to inherit family property which was discriminatory and violated the Constitution rights to equality and property. The import of this decision is that the Court declared that culture and traditional customary practices can never be used to override fundamental human rights or the Constitutional principles of equality. It was on this same trajectory the invalidity of male only inheritance in the matter of the estate of the late Michael Ruto who was alleged to have inherited Sergoit/Elgeyo Border Biki (Beliomo)/335 from his late father in exclusion of his sisters was found to be discriminatory for this happens to be family property. That customary practice of the only male child automatically inheriting the family home to the exclusion of female siblings was the touchstone of the decision of this Court. I held the view as I did that time and now placing reliance on the progressive jurisprudence which has since now been settled with regard to inheritance and application of equality clauses as defined under Art 27(4) of the Constitution 2010. As a matter of emphasis customary law is not static. It does evolve to reflect modern societal norms of fairness and must be proven by evidence in Court rather than blindly presumed. 9.The contestation in Kenya on inheritance rights between the male and female child from the same lineage continues to hold the families hostage for many indigenous citizens and communities placing a strong emphasis on customary law and culture as part of their fundamental identities. It should not be ignored even in this Constitutional discourse customary law has on many occasions helped individuals describe or characterize the traits of the 42 or so local communities which is the very identity Kenya as a Republic. It is by definition intrinsic to the life and customs of each local community and it binds those who have been born, brought up and sustained within its reach. This became the legal battleground on inheritance rights on the matter of the estate of the late Michael Ruto. That is how Magdaline Kwambai the surviving spouse is unable to come to terms that this ancestral land initially and absolutely owned by her mother in-law should devolve to her daughters and sisters to her late husband. 10.It is also interesting to note that within the scope of our legal system the continued relevance of customary law which regulates the daily lives of the 42 local communities is sparingly re-litigated on our Courts and that to me poses serious governance challenged to Constitutional democratic States as how best to regulate customary dispute settlement. 11.In this inheritance dispute I have considered the written submissions by Learned Counsel Mr. Chemwok dated 7th April 2026, in which he has invited the Court not to adopt the mediation agreement on the basis it had a fundamental defect which is in violation of equity and justice. His proposal is that the estate be divided equally among the children of the deceased. This was opposed by the Petitioner’s Legal Counsel in the affidavits filed on 8th April 2026 accompanied with submissions which highlighted the principles in the following cases: Trouistik Union International & Another v Jane Mbeyu & Another, re estate of GKK (deceased), re estate of Mwaura Mutungi (deceased), Rono v Rono & Another, re estate of M’Ngarithi M’Miriti (deceased), Benjoh Amalgamated Ltd v KCB Ltd and R v Advocates Disciplinary Tribunal ex parte Apollo Mboya. In the present case, Learned Counsel for the Petitioner was of a different view with regard to the inheritance rights distribution of the children of the deceased. 12.This succession dispute between the Petitioner and her sisters in-law brings into focus the classification of women being unpackaged both from the foundation of creation and further down under customary law and culture within the African society. In essence women are sometimes viewed as an addition to their tribe or clan, in contrast or as opposed to equals in their own right. If reference to the theological foundation is anything to go by the dictates of Genesis 2:24 reads; therefore, a man shall leave his father and mother and hold fast to his wife and shall become one flesh. In the same vein under Mark 10:7, Ephesians 5:31 and Psalms 45:10-11 women are commanded to leave their father and mother when they enter marriage and further told to forget their people and their father’s house. A woman’s/daughter forgetting of her father’s house is a critical part bedeviling the law of inheritance rights in Kenya. Hence generally speaking once a daughter from a particular lineage is married she becomes part of a husband family and falls under his guardianship, guidance, partnership and leadership. Whereas unmarried daughter remains under her father’s guardianship, custody, control and dependency. 13.In this case, way back in 1997, this ancestral land was bequeathed to the only son of the deceased by the name Michael Ruto. As fate would have it by the act of God, the deceased died on 31st May 2021 at Moi Teaching and Referral Hospital and was survived intestate with the following sons and daughters namely:Irene Jepkoech - 39 yearsErick K Kiptum - 36 yearsAmos Kipchumba - 31 yearsLeonard Kipkogei - 33 yearsIsaac Kiprop - 29 yearsCaroline Jebichii - 25 yearsJudy Jeptoo - 20 years 14.What this means is that by the time of their survivorship and transfer of land to their father in Pari Materia the doctrine of legitimate expectation flowing from ancestral inheritance established that these rights were vested in them regardless of whether the father was alive or not. The expectation was justified and grounded on the transfer of title in the name of their late father. The objection to these proceedings as against Magdaline Kwambai from the Objectors was initiated on 18th August 2023 objecting to the making of the grant of representation to the spouse of the deceased by her sisters in-law. This act of transfer of land was undertaken by the owner of the ancestral land and not Magdaline Kwambai. The parcel of land was exclusively acquired by the deceased father to the Objectors and the spouse to the Petitioner but at that period in time out of his own free will he bequeathed the immovable property to his only son Michael Ruto. Notwithstanding that position taken by their late father there is prima facie evidence that the Objectors had left their father’s land of domicile and apparently is not very clear how they were not able to discover that during the lifetime of their father, on 30th December 2014 the parcel of land had been transferred to Michael Ruto and title issued. The title deed being challenged by the Objectors makes no provision that the parcel of land was to be held in trust for the benefit of the Objectors. That is the elephant on record in so far as this protracted litigation is concerned. However, this Court in considering the matter paid attention to the jurisprudence of the Constitution and opined that prima facie being ancestral land by dint of that transfer there was unequal treatment and discrimination grounded on birth of the children whose lineage is traceable to the owner of the ancestral land. 15.The short question involved in this dispute is whether the Objectors would be entitled to an equal share of their ancestral property or not as it is commonly held by the people of Kenya that property should be equally shared to the heirs of the estate. This doctrine of equal sharing in my view is not equated to one plus one or two plus two which is equals to two and four as the factorial digital measurement. There is much more to the letter, spirit and ghost of Section 38 and 40 of the Law of Succession Act. One would think that in this day and age where great strides has been, made in realizing the Constitutional call of equality under Art 27 of the Constitution, this Court would not need to intervene for equity between the heirs of a common ancestor and the same should be applied irrespective of their biological differences. That is why in this case, it might not be that exacting. The reason being the sons of Michael Ruto aged between 29 & 36 years have been in occupation of the said parcel of land and those rights were conferred by a title deed in the name of their late father. In the context of inheritance and succession law, a constructive trust is an equitable remedy imposed by courts to prevent unjust enrichment or unconscionable conduct. It arises by operation of law rather than by express agreement. Courts frequently use it to protect the inheritance rights of family members when legal formalities (like land registration) clash with equitable entitlements. In re Estate of Mong’are Obanyi (Deceased) (Succession Cause 1 of 2024): The High Court examined whether a deceased person putting children in possession of their respective portions of land prior to death constitutes an enforceable constructive trust, establishing beneficial inheritance rights before formal distribution. There are, of course, two separate questions: first, was it intended that the parties should share the beneficial interest in a property conveyed to one of them only; and second, if it was so intended, in what proportions was it intended that they share beneficial interest?” 16.The facts on this inheritance therefore lie in a narrow compass. The children of the deceased both male and female must contend with the state of affairs in which the siblings to their late father are seeking a declaration of partition of title of the suit property. This scheme of inheritance based on the number of heirs, the historical aspect of the root title and its conveyance from the grandfather to her son (father Michael Ruto) without the caveat/encumbrance of holding in trust for the rest of the children, complicated the distributive of inheritance rights as commonly known in law. 17.The common underlying thread is that justice, good conscience and equity plays a supplementary role in enabling Courts to mould the relief to suit the circumstances that present themselves before Courts with the principal purpose of ensuring a just outcome. Where the existing statutory framework is inadequate for Courts to adjudicate upon the dispute before them, or no settled judicial doctrine or custom can be availed of, Courts may legitimately take recourse to the principles of justice, equity and good conscience to effectively and fairly dispose of the case. 18.It is my firm believe that a Court of law with jurisdiction cannot abdicate this responsibility to decide a legal dispute involving competing legal rights of parties or litigants merely because the surrounding facts of the case do not meet the letter of the existing law. That is why the reading of the many jurisprudential decisions in our repository have demonstrated application of the principles of justice, good conscience and equity to supplement the incompleteness or inapplicability of the letter of the law with the ground realities of the legal dispute in question so as to do justice between the parties or litigants. That is the very reason why the doctrine of equity is an essential component of justice for a just adjudication of disputes by a competent forum duly constituted under Art 50(1) of the Constitution. 19.The Objectors are agitating that the ancestral land be shared equally. However, the progressive jurisprudence generated by the Superior Courts in Kenya ensures equitable distribution of estate assets by balancing statutory rules in the Law of Succession Act, family needs, and within the corpus of the equality clauses under Art 27 of the Constitution. 20.When applying the principles of justice, equity, and good conscience I am mindful of the above species of facts on inheritance of ancestral land and the otherwise the open-ended principles contextually. In the present case, if the views of the Objectors are upheld by this Court they would deny the children of Michael Ruto in the matter of his estate a right to property in which they have been in occupation since their birth by dint of the transfer of title with no restriction by the owner of the property being their grandfather, that their father Michael Ruto was a trustee of the other beneficiaries. It is on record and undisputed that during the grandfather’s lifetime he devolved one acre to one of his daughters who was not in the same protocol in terms of marriage with the Objectors to these proceedings. That is why in Art 27 of the Constitution it ensures equality among equals. Its aim is to protect persons similarly placed against discriminatory treatment. Thus from a detailed analysis and close examination of the probate cause, there is no hostile discrimination on the final resolution as to how the ancestral land to both the Petitioner and Objectors should be distributed. 21.For those reasons a certificate of grant of confirmation shall be extracted by the Deputy Registrar of the High Court detailed as follows: Property Heirs/beneficiaries Shares Sergoit/Elgeyo Border Block 1 (Beliomo)/52 Magdaline Kwambai 8 Acres to be shared Irene Jepkoech Erick K Kiptum Amos Kipchumba Leonard Kipkogei Isaac Kiprop Caroline Jebichii Judy Jeptoo Helena Jepkangor Kipyego 4 Acres to be shared Rose Jeptanui Ruto Monica Cherotich Boit Mary Ruto Salome Jepkoech Ruto 1 Acre 22.This being a family matter, I make no orders as to costs. DATED AND DELIVERED THIS 20TH DAY OF JULY 2026.…………………………………….R. NYAKUNDIJUDGE