https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7397

In re Estate of Yebei (Deceased) (Succession Cause 93 of 2012) [2026] KEHC 7397 (KLR) (29 May 2026) (Ruling) Neutral citation: [2026] KEHC 7397 (KLR) Republic of Kenya In the High Court at Eldoret Succession Cause 93 of 2012 RN Nyakundi, J May 29, 2026 IN THE MATTER OF THE ESTATE OF MARY CHESIRO YEBEI (DECEASED) Between Samwel Kimaiyo Bitok 1st Applicant Joel Kipleting 2nd Applicant and Richard Kiptum Chumo 1st Respondent Wilson Kiprotich Lelei 2nd Respondent Ruling 1.Before this Court is notice of motion dated 15th October 2025, expressed to be brought under Section 47 of Cap 160, Rules 63, 73 of the Probate and Administration Rules, Order 42 Rule 6 (1), (2), (3) and (4) of the Civil Procedure Rules 2010 Section 3, 3A and 63(e) of the Civil Procedure Act, Article 50, 159 of the Constitution and all other enabling provisions of the law. The Applicant seeks the following orders:a.Spent.b.That the honourable Court be pleased to issue a temporary order of stay of execution of the ruling/judgement dated 3rd September, 2025 and all consequential pending the hearing and determination of this application.c.That the honourable Court be pleased to review the ruling and its consequential decree or certificate of confirmation of grant.d.That the honourable Court be pleased to rectify the error on record that did not consider the finding of justice Olga Sewe dated 20th day of February, 2019.e.That costs of this application be provided for. 2.Which application is grounded on the affidavit of the Applicant who deponed as follows:-a.The ruling and the consequential certificate of confirmation of a grant sought to been forced or executed was erroneously entered as the honourable Court did not consider the ruling of Justice Olga Sewe dated 20th day of February, 2019 that gave out of land reference number Kapsaret/Simat Block 2(Simat)/228.b.The ruling and consequential decree of 3rd September, 2025 erred in overlooking the ruling dated 20th February,2019 that determined the interests of the 1st objector/Applicant.c.The Applicant seeks the honourable Court's intervention in correcting the erroneously entered judgement and certificate of confirmation of grant or rectifying it.d.That the Applicant purchased the portion of land during the lifetime of the deceased whom estate is subjected of these proceedings.e.It is in the interest of justice that the application be allowed. 3.In support of the application is the annexed affidavit of Samuel Kimaiyo Bitok who deponed as follows:a.That I instituted objections proceedings via summons for revocation or annulment of grant dated 1st November, 2012.b.That 20th day of February, 2019 the honourable Court delivered its ruling on the summons and proceeded to revoke the grant.c.That in its ruling the Court upheld my objection and held that I had an interest in the estate of Mary Chesiro Yebei.d.That while filing the application for confirmation of grant the Petitioners failed to take into account the ruling of the Court dated 20th February,2019.e.That I purchased a portion measuring 1.4 acres in land reference number Kapsaret/Simat Block 2(Simat)/228.f.That I purchased the property during the lifetime of the deceased to whom the estate herein belongsg.That there is an error on the face of the record and I pray that the honourable Court do rectify the ruling and or certificate of confirmation of a grant so that I am given my 1.4 acres. 4.In response to the application is the replying affidavit of Richard Kiptum Chumo who avers as follows:a.I am the above-named male adult of sound mind and disposition hence competent enough to make and swear this Affidavit.b.That my Co-objector/Petitioner herein Wilson Kiprotich Lelei, has fully authorized me to make and swear this affidavit on my behalf and on his behalf as wellc.That the Advocates have read and explained to me the contents of the 2nd Objector's/Applicant's Chamber Summons dated 26th June, 2025, together with the Supporting Affidavit Sworn on the same day by Joel Kipleting, I wish to now respond to the same hereunder as follows;-d.That the 2nd Objector/Applicant Summons dated 26th June, 2025 now before Court are not only misplaced, misguided, malicious, scandalous, inept, incompetent and pure abuse of the Court process, and the same ought to be dismissed with costs.e.That the prayers sought by the 2nd Objector/Applicant are untenable, lacks substance, as the same are poorly crafted and does not portray/display any cause of action, as there is no certificate of Confirmation that has been issued by this Court this far, that ought to be rectified as prayed.f.That the 2nd Objector/Applicant is a busy body and does not have any sound/legal claim against the estate of my late mother considering the fact that he is neither a son/beneficiary/dependant nor accreditor/purchaser of the estate of my late mother.g.That the allegations/speculations being made by the 2nd Objector/Applicant in his Supporting Affidavit are false and the annextures marked as "A" is a forged document as I have never sold my mother's land and I remain to be a stronger to purported agreement.h.That the 2nd Objector/Applicant had sued me wrongly in Eldoret Chief Magistrate's Court Criminal CaseNo.1370 of 2014 -Republic-vs-Richard Kiptum Chumo with the offence of obtaining by false pretence and which after full trial the trial Court acquitted me for lack of evidence in the Judgment delivered on 6th May,2019.i.That upon my advocates being served with the 2nd Objectors/Applicants application dated 26th June,2025, I went to curt trying to request to be supplied with the copy of the said Judgment but I was informed0the same was not typed and I was directed to apply for it to be typed but unfortunately the same taken so long to be availed to me.j.That I urge this Honourable Court to invoke its inheritance powers and call for Eldoret Chief Magistrate Court Criminal Case No.1370 of 2014 -Republic -vs- Richard Kiptum Chumo, for the purposes of ascertaining that I was acquitted by the trial Court, after the 2nd Objector/Applicant allegations/accusations failed to hold in water.k.That the 2nd Objector/Applicant issues of purchase cannot be subject to this proceeding as the same ought to be dealt with in the right form being the environment and Court which is duly vested with the jurisdiction to hear and determine such matters.l.That the handling the 2nd Objector's issue in this Honourable Court, will amount to violating the rights of all the legitimate beneficiaries of the estate of my late mother.m.That further, giving the 2nd Objector/Applicant audience in this matter will amount to re-litigating the issue which had been conducted long time ago by a competent Court of law, which was able to render its judgment to the effect that I had not entered into an agreement with the 2nd Objector or rather, they were unable to proof their case against me.n.That it is solely in the interest of justice that the 2nd Objector's/Applicant's application dated 26th June,2025 be dismissed with costs as it prejudicial to the beneficiaries of the estate of my late mother.o.That as the Court record can also bear me witness there is no certificate of Confirmation which is on record, and as such there is nothing that this Court can rectify.p.That it only in the interest of justice that I pray that this Honourable Court dismisses the 2nd Objectors application dated 26th June, 2025.q.That I make this application in strong opposition to the 2nd Objector/Applicant Chamber Summons dated 26th June,2025. Decision 5.The borne of contention between the Applicant and the Respondents is the decision rendered by Olga Sewe J as she then was dated 20th day of February 2019 in which she ruled and made the following observations with regard to the application filed by one Samuel Kimaiyop Bitok: there is no dispute that the Applicant bought to piece of the suit property. He produced the sale agreements as annexuture SKB2 and SKB3 to augment his averments. There is also no dispute that the interest of the Applicant as a purchaser was not recognized or noted by the Respondent in his affidavit in support of the petition of grant. In the premised, a god case has been made out by the Applicant for the revocation of the grant of letters of administration Letters of Administration Intestate, that was issued herein on 17th July 2012 in respect of the Estate of the Deceased, in that the Respondent concealed to the Court the interests of the Applicant. It is for that reason that I find merit in the application dated 17th February 2004 and would allow the same and order that:(a)The Grant of Letters of Administration issued herein on 17th July 2012 to Richard Kiptum Chumo in respect of the Estate of the Deceased, Mary Chesiro Yebei, be and is hereby revoked;(b)The costs of the application be in the Cause. 6.What followed thereafter was an application filed by Richard Kiptum Chumo and Wilson Kiprotich Lelei pursuant to the provisions of Section 71(3) of the Law of Succession Act. In which the estate was transmitted and shared among the beneficiaries as follows: Name Description of Property Shares of Heirs Richard Kiptum Chumo Kapsaret/Simat Block 2(Simat)/228 2.600 Acres Wilson Kiprotich Lelei Kapsaret/Simat Block 2(Simat)/228 2.100 Acres Joseph Kimaiyo Kebenei Kapsaret/Simat Block 2(Simat)/228 2.025 Acres Ezekiel Kipngetich Bett Nickson Kiptoo Rotich Kapsaret/Sirnat Block 2(Simat)/228 jointly own Hillary Kipchirchir Bett Kapsaret/Simat Block 2(Simat)/228 1.025 Acres Hellen Jepkemei Kosgei Kapsaret/Simat Block 2(Simat)/228 0.1 Acre Prisca Jepkoech Songok Alias Grace Chelagat Songok Kapsaret/Simat Block 2(Simat)/228 0.1 Acre Jude Kiprono Limo Kapsaret/Simat Block 2(Simat)/228 0.1 Acre Nicholas Kimeli Kapsaret/Simat Block 2(Simat)/228 0.45 Acres Faith Cherono Songok Kapsaret/Simat Block 2(Simat)/228 0.2 Acres 7.From the gist of the application which is challenging the certificate of confirmation of grant dated 3rd September 2025 the Respondent is failing to appreciate that on 20th February 2019 the grant of letters of administration issued herein on 17th July 2012 to him as Richard Kiptum Chumo was revoked under Section 76 of the Law Of Succession Act in favour of one Samuel Kimaiyo Kibitok. Unfortunately, in the subsequent decision by this Court there was an error apparent on the face of the record which decision dated 3rd September 2025 did not factor the finding by Olga Sewe which had far legal implications on the subsequent distribution of the estate of Mary Chesiro Yebei alias Maria Chesiro Yabei. The scope of review under Section 80 of the CPA and Rule 73(1) of the Probate and Administration Rules as read with Order 45 Rule 1 of the CPR when juxtapose on the impugned grant of representation and judgment of Ogla Sewe J there is an error of fact and law apparent on the face of the record which demands that the same be considered valid in so far as the portion of Samuel Kimaiyo Bitok is concerned. These property rights under Article 40 under the Constitution had been crystalized by the ruling delivered by this Court that was presided over by session Judge Olga Sewe on 20th February 2019. The purported decision by this Court with regard to the purchaser interest of Wilson Kimaiyo Bitok was an error of law as this Court is not competent to sit on appeal in a decision made by the Court of concurrent jurisdiction. 8.The error of law here is one which I can describe apparent on the face of the record which is self-evident with regard to the ruling delivered by Olga J and my subsequent decision in which I dismissed claim by Samuel Bitok which issue had already been tried and determined on the merit on 20th day of February 2019. My subsequent ruling is therefore an error apparent on the face of the record. The following authorities speak very clearly to that issue as briefly demonstrated: National Bank of Kenya Limited v. Ndungu Njau [1996] KLR 469: This is the locus classicus (leading) case on the scope of review. The Court of Appeal set the binding precedent that an error of law or misconstruing a statute is a ground for appeal—not review—and that a review is reserved strictly for self-evident, undeniable errors on the face of the record. Mulla or the Indian Code of Civil Procedure (applied via Section 80 of the Civil Procedure Act): Frequently cited in Court of Appeal and High Court decisions, this dictates that "a mere error of law is not a ground for review." It must be an error apparent on the face of the record. Motrex Limited v. Dahir & another (Civil Case E134 of 2023): Reaffirmed that misconstruing a legal provision or reaching an erroneous conclusion of law cannot be corrected via a review, as that equates to sitting on an appeal over one's own judgment. 9.My appreciation of the record and its ligation history shows that there was already a judgment by this Court on 20th February 2019 which was ignored by the Administrators during the confirmation proceedings which resulted in the certificate of confirmation of grant dated 3rd of September 2025. It is crystal clear from the entire matrix of distribution that the benefits and right already declared by Samuel Kimaiyo Bitok have not been included in the certificate of confirmation of grant. That particular share within the intestate of the estate cannot just be wished away by the Administrators and beneficiaries as one Richard Kiptum Chumo is making attempts in his replying affidavit for this Court to do so. The intestate estate cannot give both the money and the land of Samuel Bitok that would be unconscionable. 10.This Court reading of the ruling of 20th February 2019 and the subsequent affidavit filed by respective parties to this dispute demonstrates uncontroverted evidence that Samuel Bitok took possession of the land soon after paying the necessary purchase price. What this means is that a constructive trust has arisen, which is an equitable, remedial tool imposed by law not by express agreement to prevent unjust enrichment and hold wrongdoers accountable for wrongfully obtained property. It is frequently applied in cohabitation disputes, breaches of fiduciary duty and unconscionable land or shareholding transactions. The guiding principles of establishing a constructive trust focus on conscience, equity, and intent. Thus: 0Unconscionable Conduct: It arises when it would be inequitable for the legal owner of property to retain beneficial interest. Unjust Enrichment & Wrongdoing: Imposed against individuals who have acquired property through fraud, breach of fiduciary duty, or wrongful enrichment. Common Intention: In property ownership or cohabitation disputes, the trust is often inferred by the Court from the conduct, direct contributions (financial), or indirect contributions (non-financial) of the parties. See the principles in MNK v POM & Another [2023] KESC 2, Shah & 7 Others v Mombasa Bricks & Tiles Ltd & 5 Others and Rwigi v Karuthu & Another [2025] KEELC 747. In Kenya, a constructive trust as an equitable remedy is imposed by law to prevent unjust enrichment of unconscionable conduct of the Administrator/Administrators or the beneficiaries. In succession and property disputes, courts often declare that the registered owner, for our case an Administrator who offers a portion of the estate to a purchaser and there is evidence like in our case of direct financial contribution to purchase the property and thereafter, there is continuous possession of the parcel of land, the seller cannot turn around to deny existence of that right. The Court of Appeal in Kabui v Kabui Civil appeal 415 of 2018, the Court recognized that payment of the purchase price and actual, continuous possession create a constructive trust and an overriding interest, preventing the property from being wrongfully alienated. Also in Jeremiah Imbusi v Asitiba Imbusi & 3 Others [2020] KEELC 397, the Court declared that land was held in a constructive trust because the Plaintiff had substantially developed and occupied it with the common intention of ownership. 11.In analyzing and scrutinizing, there is merit to stay the transmission of the certificate of confirmation of grant dated 3rd of September 2025 until the estate makes provisions for the share of one Samuel Kimaiyo Bitok which had crystallized by the judgment of Olga J in her ruling dated 20th February 2019. It is so ordered. DATED AND DELIVERED AT ELDORET THIS 29TH DAY OF MAY 2026............................................R. NYAKUNDIJUDGE