https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11123

In re Estate of Sang (Deceased) (Succession Cause 120 of 2010) [2026] KEHC 11123 (KLR) (22 July 2026) (Ruling) Neutral citation: [2026] KEHC 11123 (KLR) Republic of Kenya In the High Court at Eldoret Succession Cause 120 of 2010 JRA Wananda, J July 22, 2026 IN THE MATTER OF THE ESTATE OF JOSIAH KIBISEM SANG (DECEASED) Between Teresa Jemeli Omondi (Now the Late) 1st Applicant Barnaba Kimaiyo 2nd Applicant and David Kipkosgei Bisem Petitioner and Jerotich Tabarno Sang Objector and Joseph T. Arap Letting (Substituted with his Legal Representatives, Cecilia Chepkoech Letting, Maureen Cheptoo Letting and Antonio Kiprop Letting) Interested Party Ruling 1.I have been asked to revoke the Grant issued and confirmed in this Cause, appoint new Administrators of the estate the subject hereof, set aside a Ruling delivered herein in 2019, revoke, cancel and revert to the estate, titles to parcels of land excised from estate land transferred to a third party, and to then also order for fresh re-distribution of the estate. To “do” justice to this Ruling, I find it necessary to set out the background of this mater. 2.The deceased, Josiah Kibisem Sang, died on 16/06/1986 at the age of 60 years old. By the Petition dated 18/12/1986, filed at the Magistrate’s Court as Eldoret RMC Succession Cause No. 39 of 1986, Jerotich Tabarno Sang, describing herself as the 1st wife of the deceased, applied for a Grant of Letters of Administration to manage the estate of the deceased. The Grant of Letters of Administration was then issued in favour of the Petitioner on 25/02/1987, and subsequently confirmed on 28/12/1988. By that Confirmation, the entire parcel of land described as Nandi/Lessos/317 was allocated wholly to the Petitioner. 3.By the Notice dated 20/07/2004 and Summons, one David K. Bisem, through his Advocates, Messrs Limo R.K. & Co., filed Eldoret Misc. Succession Cause No. 143 of 2004 in which he applied for revocation of the Grant issued to Jerotich Tabarno Sang by the Magistrate’s Court which he urged, did not have the pecuniary jurisdiction to issue the Grant as the estate was worth more than Kshs 100,000. He contended further that there was concealment of the existence of other beneficiaries, and also of some properties, and also deponed that he belongs to the 2nd house, and that his mother died in 1995 when he was still young. The Application was allowed by M. Ibrahim J (as he then was) on 21/07/2008, and the Grant thus revoked. By this time, Jerotich Tabarno Sang was being represented by Messrs C.F. Otieno & Co. 4.It then transpired that another Succession Cause, namely Nairobi High Court Succession Cause No. 2334 of 1997 relating to the same estate as herein, had even earlier been filed by the said David Kipkosgei Bisem, describing himself as the eldest son of the deceased. In that Cause, he applied for and obtained the Grant of Letters of Administration on 22/12/1997, which was confirmed on 23/03/2000, and by which the entire parcel of land Nandi/Songoilet/181 was allocated wholly to him. That Succession Cause was later transferred to this Court and is now the instant Cause, renamed as Eldoret High Court Succession Cause No. 120 of 2010. 5.David Kipkosgei Bisem, through his new Advocates, Messrs Annasi Momanyi & Co., then filed the Summons dated 2/02/2009 seeking revocation and cancellation of 4 title deeds registered in the name of Jerotich Tabarno Sang, and/or Hon. Joseph Arap Letting, 3 of which he deponed, were portions excised out of the mother title, Nandi/Lessos/317. He claimed that such excised portions were fraudulently transferred since Hon. Joseph Arap Letting presented himself to the Land Control Board as a “son/beneficiary” of the estate of the deceased, which was false. 6.Jerotich Tabarno Sang then through her Advocates, Messrs C.F. Otieno & Co. filed her own fresh Summons dated 3/02/2012 by which she sought that the Grant issued to David Kipkosgei Bisem when this was Cause still known as Nairobi High Court Succession Cause No. 2334 of 1997 be also revoked. Her grounds were that David Kipkosgei Bisem falsely described himself as the sole survivor, and that the Court did not make inquiries on the fate of the other 2 widows of the deceased and their several children, who were all never involved in the proceedings. She also accused David Kipkosgei Bisem of falsely describing himself as the eldest son, which was not true, and for failing to disclose that he had also obtained a parallel Grant in Nairobi High Court Succession Cause No. 2334 of 1997 relating to the same estate. She thus accused David Kipkosgei Bisem of material disclosure and obtaining the Grant by the making of a false statement. She also listed a number of properties comprising the estate which she accused David Kipkosgei Bisem of not disclosing, and asserted that some had since been sold, and that in doing so, David Kipkosgei Bisem, had relied on the impugned Grant. She also contended that she, as the 1st widow of the deceased, together with the 3rd widow, ranked higher in priority in applying for a fresh Grant, above David Kipkosgei Bisem. 7.In response, David Kipkosgei Bisem, filed the Replying Affidavit sworn on 18/09/2012 in which he denied the above allegations, and deponed that it is, in fact Jerotich Tabarno Sang who had illegally transferred estate properties to herself and then sold them to third parties. He also disclosed that he had since filed a suit, namely, Eldoret High Court Civil Case No. 164 of 2012 to recover the parcels of land sold by Jerotich Tabarno Sang, and be reverted to the estate, and also contended that the Summons filed to revoke his Grant was simply intended to defeat that recovery suit. 8.Hon. Joseph Arap Letting, through his Advocates, Messrs Onyinkwa & Co., also filed the Replying Affidavit sworn on 18/03/2013 in which he disclosed that he was the purchaser of some parcel of land excised from sub-divisions made from the mother title, Nandi/Lessos/317, which excised portions he purchased lawfully from one of the sons of the deceased, Hosea Kipchuma Sang, who had an expectant interest, after which Jerotich Tabarno Sang, who was holding valid Letters of Administration for the estate of the deceased, transferred the same to him. He thus described himself as an innocent purchaser for value. From the record, Hosea Kipchuma Sang, is listed as a son to Jerotich Tabarno Sang. Subsequently, Hon. Joseph Arap Letting changed his Advocates to Messrs KTK Advocates. 9.Fortunately, by the Consent dated 5/03/2015 signed by all the 3 Advocate law firms on record, the Application by Jerotich Tabarno Sang, was allowed and the parallel Grant held by David Kipkosgei Bisem thus also revoked. 10.Joseph Arap Letting, unfortunately, also died on 23/11/2015. Under these circumstances, David Kipkosgei Bisem, left without one of the key Respondents to his Application, took it upon himself to move the Court, through his Advocates, Messrs Annasi Momanyi & Co. Advocates, to join the Legal Representatives of Hon. Joseph Arap Letting into this Cause in his substitution. This Application was subsequently allowed by consent, and the 3 joint Legal Representatives, Cecilia Chepkoech Letting, Maureen Cheptoo Letting, and Antonio Kiprop Letting, were then joined into the matter as aforesaid. 11.The Summons filed by David Kipkosgei Bisem whereof he had sought revocation and cancellation of the 4 titles registered in the name of Jerotich Tabarno Sang, and/or Hon. Joseph Arap Letting, was then eventually canvassed before Hon. Omondi J (as she then was), who however dismissed the same by her Ruling rendered on 10/01/2019. 12.A further Application dated 30/01/2019 filed by David Kipkosgei Bisem, seeking “preservation orders” pending Appeal against the said Ruling was also dismissed on 22/10/2019, thus seemingly hitting the last nail on the Applicant’s litigation “coffin”, and bringing the “charade” to an end. 13.That was not however to be. Contrary to the expectations H. Omondi J (as she then was) cited in her said Ruling, the “circus” still did not end. One Teresa Jemeli Omondi and one Barnaba Kimaiyo, who I note from the records, are the brother and sister of David Kipkosgei Bisem (all from the 2nd house), and represented by Messrs Limo & Co. Advocates, which law firm thus made a comeback to this Cause having earlier represented David Kipkosgei Bisem, the Applicants’ brother, filed a fresh Application dated 8/05/2024 in which they sought “that the Grant of Letters of Administration issued on 25th February, 1987 and confirmed on 19th February, 1998, be revoked or annulled”. These prayers were obviously misconceived as the Grant referred to had already been long revoked as I have recounted above, and was therefore no longer in existence. Realizing this blunder, Mr. Kibii Advocate swiftly withdrew the Summons on 25/07/2024. 14.The said withdrawal however turned out to have only been a brief respite as Mr. Kibii, a year later, returned with yet another Summons, the subject of this Ruling, dated 31/07/2025 and filed on behalf of the same Teresa Jemeli Omondi and Barnaba Kimaiyo. The orders sought this time were as follows:i.That the Applicants herein, Teresa Jemeli Omondi & Barnaba Kimaiyo, be appointed as the administrator of the estate of the deceased.ii.That the Ruling of the Honourable Court dated 10th January, 2019 upholding the 5th Respondent's registration over Nandi/Lessos/554, 555 and 564 and all consequential orders be set aside.iii.That this Honourable Court be pleased to issue an order for cancellation and revocation of those titles known as Nand/Songoliet/181, Nandi/Lessos/751-753, 909, 910, Nandi/Lessos/554, 555 and 564 and revertion of the same to the estate of the deceased for purposes of distribution.iv.That the costs of the Application be costs in the cause. 15.In his Affidavit in support of the Application, Barnaba Kimaiyo reiterated that they (the Applicants) are the son and daughter of the deceased, respectively, and deponed that the proceedings to obtain the Grant were conducted without their knowledge and that of other benefits, that the Grant was obtained by the making of false statements and concealment of material facts, nor was their consent to filing of the Petition sought or obtained. He then asserted that the subject titles were obtained and processed on the strength of the nullified and revoked Grant, and the Ruling dated 10/01/2009 to which the Applicants were not parties. 16.There is only one Replying Affidavit on record in response to the Application. The same is sworn by the said Maureen Cheptoo Letting on 29/10/2025 in opposition to the Application, and is filed through Messrs A.H. Malik & Co. Advocates. In the Affidavit, Maureen Cheptoo Letting deponed that she is an Advocate and the executor of the estate of the Interested Party, and described the Application as just another attempt by a cabal of members of the family of the deceased herein, the late Josiah Kibisem Sang, intended to frustrate the Interested Party from taking control of the parcels of land which the Interested Party acquired from the deceased. She contended that to the extent that that this Court in its Ruling rendered on 10/01/2019 declined to cancel the titles, the same prayer is not available for re-litigation before this same Court as it is Res Judicata. She urged further that in any event, the Ruling which re-affirmed the proprietorship of the Interested Party in the parcels of land was appealed against in Eldoret Court of Appeal, Civil Appeal No. 46 of 2019, and the Court of Appeal in its decision delivered on 17/03/2023 upheld the Ruling, and that, as such, the same cannot be re-opened as it is an issue already finalized by the Court of Appeal. According to her, all that is pending is settlement of terms to enable the Interested Party pursue enforcement, and thus termed the Application incompetent and incurably defective. She also pointed out that the Applicants, as siblings of David Kipkosgei Bisem, who has been a party in this Cause and unsuccessfully challenged the titles, have not offered any explanation as to why they are approaching this Court at this point in time to be appointed Administrators of the estate when the distribution has, for all intents and purposes, been finalized. She then termed the current Applicants as nothing but alter egos of David Kipkosgei Bisem, who is trying to have a “second bite at the cherry” through the current Applicants. 17.The Applicants then, with leave of Court, filed the Supplementary Affidavit sworn on 13/112/2015, again, by Teresa Jemeli, who however basically reiterated matters already recounted. She also refuted the attempt to associate them (the Applicants) with the unsuccessful Application earlier filed by David Kipkosgei Bisem, whom she insisted, never informed them of the proceedings. 18.I then gave the parties leave to file written Submissions. However, only the Applicants’ Advocates, Messrs Limo R.K. & Co., filed the Submissions dated 14/11/2025 as per the Judiciary Case Tracking System (CTS) online portal. Applicants’ Submissions 19.Apart from simply reciting matters and arguments already advanced, Mr. Kibii, Counsel for the Applicants, attacked the invoking of the Res Judicata doctrine set out at Section 7 of the Civil Procedure Act to bar the Application, urging that the doctrine cannot apply in this case because the Applicants were not parties to the previous Applications, and were also not parties in this Cause. In the end, he submitted that the Applicants have demonstrated that they are beneficiaries of the deceased and are entitled to a share thereto, and have made a case for fresh distribution, and also, that none of the parties herein have offered any explanation why they excluded the Applicants and made no provision for them. He also cited authorities in support of the various limbs of his submissions. Determination 20.The issues that calls for determination in this matter can be broadly summarized to be “whether this Court should revoke the Grant issued and confirmed herein, and instead appoint the Applicants as the Administrators of the estate of the deceased, set aside the Ruling delivered herein on 10/01/2019, revoke, cancel and revert to the estate, titles to parcels of land excised from estate land and sold or transferred to the Interested Party, and also order for fresh re-distribution of the estate.” 21.Before I proceed further, I will deal with the Interested Party’s contention that the instant Application raises matters that have already been determined, and are thus Res Judicata. 22.The effect of the Res Judicata doctrine is described in Section 7 of the Civil Procedure Act in the following terms:“No Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court.” 23.As already stated, David Kipkosgei Bisem had filed the Summons dated 2/02/2009 whereof he sought revocation and cancellation of 4 titles registered in the name of Jerotich Tabarno Sang, and/or Hon. Joseph Arap Letting, and which Summons was however dismissed by H. Omondi J (as she then was) by her Ruling rendered on 10/01/2019. In dismissing the Summons, the Judge held as follows:“ 19.The scenario playing here is the typical muscle flexing which rears it’s head in situations where there is more than one wife, and often each house wants to out – fox the other, that explains the multiple succession causes each party filed to the exclusion of the other. There is also the deliberate lack of full disclosure as regards all the properties of the deceased, as evidenced in the earlier grants which were both eventually revoked. Both parties display similar traits of mischief.-Indeed there seems to be a quiet consensus that the deceased had shared out his property during his life time – that would explain;a)The absence of the first house from this dispute,b)The restraint each party seems to exercise when listing property which ought to form part of the deceased’s estate,c)The applicant’s skirting around the status of the Songoliet property which he already disposed off, and whether the Respondent/Petitioner avoided in the list of the estate’s assets.It is also a common ground that all the grants earlier issued to the parties, including the one the petitioner filed in the subordinate court in 1986 were revoked.The applicant has specifically targeted property which was subdivided, and part of the resultant subdivided parcels were transferred to the 3rd party courtesy of a sale transaction. It would also seem that the applicant is not very sure the extent of the deceased’s assets, hence his prayer that the petitioner/respondent be directed to deposit the title deeds she has (which relate to the deceased’s estate) in court. This is at its best a fishing trap – what criteria will the court adopt to confirm that the petitioner has deposited all the title documents which are in her possession? What about the parcels she first formerly had. To even deign to make such an order is simply making a mockery of common sense.I decline to venture into that sort of scenario. 20.Certainly the grant which the petitioner obtained from the subordinate court is 1986 was revoked by orders issued by Ibrahim (J) on grounds of want of jurisdiction by the court which issued it and also fraudulent representation by the petitioner, yet long before that she had a valid and legal authority.” and thus dealt adversely with the assets which forms the subject of this cause, and a third party had purchased what the applicant now seeks to recover.21.The petitioner did what was within her powers as a legal administrator of the estate at the time, yet the court subsequently found that she ought not to have been issued with the grant due to want of jurisdiction and fraud and this rendered the process a nullity. Can the court sanitize what was grounded under a cloud of fraud. Can it be argued that at the time of subdividing and selling the land there was nothing to prohibit the transfer to the interested party? Would the interested party find refuge under the principle of an innocent purchaser for value whose title should not be impeached.Granted Rule 73 of the P & A Rule provides as follows:“Nothing in these Rules shall limit or otherwise affect the inherent power of the court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the court.”Yet Section 93 (1) of the Law of succession provides as follows:(1)All transfers of any interest in immovable or movable property made to a purchaser either before or after the commencement of this act by a person to whom representation has been granted shall be valid, notwithstanding any subsequent revocation or variation of the grant either before or after commencement of this Act.22.To my mind, this seals the tape on the circus being created by the applicant, and which must now come to a shrieking halt. I hold that this application is a wild goose chase and is devoid of merit. It is consequently dismissed with costs to the Respondents.” 24.It is also not disputed that aggrieved with the dismissal of his said Application, David Kipkosgei Bisem moved to the Court of Appeal in Eldoret Court of Appeal, Civil Appeal No. 46 of 2019, to challenge the decision, but which Appeal was dismissed on 17/03/2023. In dismissing the Appeal, Mumbi-Ngugi JA, who wrote the lead decision, which P.O. Kiage, and F. Tuiyott, JJA, then agreed with, stated, inter alia, that:“ 29.Section 93(1) of the Act is intended to protect the interests of purchasers. ............ 30.From the documents presented before the trial court and the averments of the parties, there is no dispute that Jerotich had letters of administration issued to her in 1987, and confirmed in 1988. There is evidence that Arap Leting entered into an agreement for sale of the subject properties with Hosea Kipchumba Sang, a beneficiary of the estate of Kibisem Arap Sang who was entitled to the properties. A transfer was duly signed by Jerotich in her capacity as the administrator of the estate of Kibisem Arap Sang. The transfer was registered, and titles to the properties issued in favour of Arap Leting. By the time the appellant made an application for revocation of the grant in 2004 and the orders for revocation were issued in 2008, the interest of Arap Leting in the property had crystallised, and was protected by the provisions of section 93. 31.It is my view, therefore, that the trial court properly found that the appellant’s application was devoid of merit. .........................” 25.Needless to state, the Grant referred to above is the one that was issued to Jerotich Tabarno Sang on 25/02/1987, and confirmed on 28/12/1988, but which was however later revoked by M. Ibrahim J (as he then was) 10 years later on 21/07/2008. Now, 37 years after the Grant was confirmed in 1998, and 17 years after it was revoked in 2008, the Applicants have emerged with an Application seeking similar orders to those that were rejected both by H. Omondi J (as she then was) on 10/01/2019, and also by the Court of Appeal on 17/03/2023. As already observed, the grounds advanced mirror, if not the same as, those cited for the earlier unsuccessful Application that was filed 16 years earlier by David Kipkosgei Bisem in 2009, their brother from the same 2nd house. 26.In view thereof, I do not hesitate to hold and find that the doctrine of Res Judicata, for all intents and purposes, wholly applies in this case. It is clear that the issues or matters now being re-opened by the Applicants are the same that were directly and/or substantially in issue previously under the earlier Application that was filed by David Kipkosgei Bisem, (the Applicants’ brother from the same 2nd house) and which were conclusively determined. The current Application, as was the previous one, is also, for all intents and purposes, between the same 2nd house, on one part, and the same Interested Party, on the other part, or by parties under whom the Applicants claim, and under the same locus or legal title. The subject matter in both the previous Application and the current one, is also the same parcels of land excised out of the sub-division of the same mother titles, and which were also sold and transferred by the same Jerotich Tebarno Sang under the same Grant of Letters of Administration which was later revoked, to the same Interested Party. 27.Even if it were to be argued, for the sake of it, that the circumstances of the current Application are different from the earlier one, a closer scrutiny reveals that the Applicants technically seek to achieve exactly the same result that would have arisen had H. Omondi J (as she then was) allowed the earlier Application, or had the Court of Appeal overturned her decision. Realizing that the route of Appeal has now closed, the same 2nd house has now returned to the same venue but has “cleverly” substituted the coach and players hoping that it would camouflage the real identity of their team and paint it in disguise as a new one. Anyone with a legal background can easily see through this mischief. It is also not lost on me that the same law firm and Advocate who had represented David Kipkosgei Bisem in the unsuccessful Application, is the same law firm or Advocate that now represents the Applicants. Considering this proximity to, or with their brother and the Advocates, I refuse to accept that the Applicants have not been aware of the previous proceedings conducted in this matter. 28.Even if it were to be deemed, again for the sake of argument, that the parties are now different as unconvincingly urged by Mr. Kibii, and that therefore the doctrine of Res Judicata, within the strict meaning of that term does not apply, they would still be caught up by the closely related principle of “Issue estoppel”. This principle was explained by the House of Lords in the case of Arnold & Others v National Westminister Bank PLC (1991) 2 A.C in the following terms:“Issue estoppel may arise where a particular issue forming a necessary ingredient in a cause of action has been litigated and decided and in subsequent proceedings between the same parties involving a different cause of action to which the same issue is relevant one of the parties seeks to re-open that issue.” 29.This Issue estoppel principle therefore prevents a party from re-litigating an issue that has already been determined in earlier proceedings between the same parties or their privies, or which ought to have been brought or raised at the same time with the rest, even if the subsequent proceedings involve a different cause of action. Like Res Judicata therefore, Issue estoppel bars a party from asserting a fact that is contrary to a previous determination. The basis thereof, as the old adage says, is that “there must be an end to litigation.” 30.I agree with Mr. Orina, Counsel for the Interested Party’s representatives, that the 2nd house or some of its members, are simply seeking to “ingeniously” return to this same Court through a different face, that of proxies. This is by using a different set of siblings to file this new Application. This, the Court can easily see through. It is clear that what the 2nd house or some of its members are attempting to do is to get “a second bite at the cherry” in the disguise of re-litigating through the new Applicants. As earlier observed, save for the identity of the siblings now applying, the grounds relied in both the Applicants are basically the same and/or identical. As aforesaid, there is nothing new that the Applicants have presented, which had not previously been presented by their brother, David Kipkosgei Bisem, and rejected. What they are seeking to do is to re-open concluded matters and re-litigate the same long determined and concluded by this same Court and also by the Court of Appeal. To this end, this Court is clearly functus officio and cannot entertain the Application. 31.There is also the accept issue of inordinate delay by the Applicants. The parcels of land that the Applicants now wish to recover back on behalf of the estate of the deceased were reportedly sold and/or transferred to the Interested Party almost 30 years ago yet the Applicants have not even bothered to explain why they never moved to file the current Application earlier. For all that time, the Applicants comfortably sat pretty on their laurels, unbothered, and have not alleged that they were under any legal disability that may have barred them from moving the Court earlier. Why now, 30 years later? 32.In respect to the prayer for appointment of the Applicants to be the Administrators of the estate of the deceased, as aforesaid, two parallel Grants obtained from two different Courts were in existence at the same time. However, the Grant held by Jerotich Tabarno Sang was revoked by M. Ibrahim J (as he then was) on 21/07/2008, thus leaving David Kipkosgei Bisem as the only Administrator, who however, also suffered a similar fate 7 years later when his Grant, too, was revoked by way of the consent dated 5/03/2015. I find no evidence that any new Administrator or Administrators was or were appointed upon revocation of the Grant. To my understanding therefore, there is currently no Administrator. 33.Needless to state, there will be need to appoint a new Administrator only if there is still some estate property that is available for distribution or is yet to be transmitted. However, whether or not there is indeed any property still available for distribution is not clear from the record as I find conflicting information in the record. Even the Applicants have not been clear on whether their prayer to be appointed Administrators is only for purposes of administering the parcels of land that they had hoped to recover back from the Interested Party, or whether there are other or additional estate properties that may still need to be administered or transmitted regardless. None of the parties having sufficiently addressed this matter, I will not deal with the issue of appointment of Administrators at this stage but will leave it to the parties to move the Court appropriately, if necessary, once all the facts are clear. Final Orders 34.In the premises, I make orders as follows:i.The Applicants’ Summons dated 31/07/2025 is dismissed with costs to the Interested Party, as his Legal Representatives are the only parties that participated in the canvassing of the Application.ii.However, regarding the prayer for appointment of new Administrators, as it has not been made clear to the Court whether there is still any estate property available for distribution, I give the parties liberty to move the Court appropriately in respect thereto should the need to appoint any such Administrator or Administrators be established. DELIVERED, DATED AND SIGNED AT NAIROBI ON THIS 22ND DAY OF JULY 2026WANANDA JOHN R. ANUROJUDGEDelivered in the presence ofDIVISION -Ms. Kibet h/b for Mr. Kibii for the ApplicantsMr. Orina for the Legal Representatives of the Interested PartyN/A for any other partyCourt Assistant: Rodgers Tshombe