https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7220

In re Estate of Keter alias Isaac Kimaiyo Keter (Deceased) (Succession Cause 37 of 2019) [2026] KEHC 7220 (KLR) (28 May 2026) (Ruling) Neutral citation: [2026] KEHC 7220 (KLR) Republic of Kenya In the High Court at Kitale Succession Cause 37 of 2019 RK Limo, J May 28, 2026 IN THE MATTER OF THE ESTATE OF ISACK KIMAIYO KETER alias ISAAC KIMAIYO KETER (DECEASED) Between Elisha Kipngetich Maiyo Applicant and Sarah Jepkemboi Maiyo Respondent Ruling 1.Before this court are two applications namely summons for revocation of grant dated 7/8/2025 and application for review dated 5/8/2025. This court directed that both applications be canvased together for the interest of timely disposition of this matter. 2.This court shall consider and determine both applications separately within this ruling and because the ruling in summons for revocation of grant dated 7/8/2025 will certainly have a bearing in the former application for review dated 5/8/2025, this court will begin with the summons for revocation of grant dated 7/8/2025. 3.Elisha Kipngetich Maiyo, the applicant in the summons for revocation of grant dated 7/8/2025 seeks the following prayers namely;i.That pending the hearing and determination of this application the respondent namely Sarah Jepkemboi Maiyo be directed to avail original Death Certificate of the late Isack Kimaiyo Keter (deceased) Serial No.068xxx85 given on 4/10/2019 filed in this court on 74/2020 to the DCI Trans-Nzoia West for comparison with original Death Certificate of Isack Kimaiyo Keter (deceased) Serial No.068xxx84.ii.That summons be issued to District Registrar for Births and Deaths Eldoret East to ascertain the authenticity of Death Certificate of Isack Kimaiyo Keter (deceased) Serial No.068xxx85 given on 4/10/2019.iii.That this honourable court be pleased to revoke the grant issued to the respondent and himself on 28/7/2025.iv.That upon the grant of prayer (3) above this court be pleased to set aside the distribution of the estate herein vide judgment delivered on 14/3/2024 by Hon. Justice A.C Mrima.v.That costs be provided for.vi.That this honourable court be pleased to granny any further orders as deemed fit. 4.The applicant has listed the following grounds as the basis for the above prayers;a.That the respondent presented a forged death certificate to this court.b.That the grant was obtained fraudulently by making of a false statement and material misrepresentation. 5.In his supporting affidavit sworn on 7/8/2025, the applicant avers that he and the respondent were appointed joint administrators of the estate of the deceased herein on 23/4/2020 in his absence. 6.He avers that he is the one who was issued with burial permit of the deceased and that he later surrendered it to District Registrar Eldoret East in 2019 and was issued with 3 original Death Certificates Serial No.068xx83 which he gave to Milka Jelel Keter (deceased) in October 2019 and retained Serial numbers 068xxx84 and 068xxx85 which he has exhibited in his affidavit. 7.That he was in the process of preferring an appeal against the judgment of Justice Mrima and as he was compiling the record he came across the Death Certificate Serial No.068xxx85 which had been presented by the respondent as prove of death of Isack Kimaiyo Keter. 8.That he then realized that the grant issued to him and the respondent was based on a forged Death Certificate Serial No.068xxx85. 9.He avers that he neither consented to appointment of the respondent as an administrator nor applied to be one himself. 10.That he has reported the forgery claim to Kitale police station vide OB 70/28/7/2025 and recorded a statement. 11.That he was advised by the police that since the impugned Death Certificate related to a succession cause, it was better for relevant orders to be issued by this court. 12.That the impugned Death Certificate No.068xxx85 is a forgery because the respondent obtained it using unorthodox means and that there are anomalies in the said Death Certificate regarding cause of death, date of registration and the name of the registering officer. 13.That it is in the interest of justice that the impugned Death Certificate be investigated and compared with Death Certificate Serial Nos.068xx83, 068xxx84 and 068xxx85 by DCIto ascertain authenticity. 14.That it is on that basis that he is seeking revocation of grant which will mean setting aside the judgment of Justice Mrima delivered on 14/3/2024. 15.That the respondent is rushing the process of distribution of the estate to conceal forgery. 16.The respondent has opposed the summons for revocation of grant dated 7/8/2025 through a replying affidavit sworn on 13/10/2025. 17.The respondent terms the application frivolous and vexatious. 18.She avers that the demise of the deceased is not disputed and that her late mother procured the impugned Death Certificate of the deceased in this cause. 19.She further avers that their late mother was the only administratrix of the estate of the deceased. 20.She suggests that the appointment of the applicant as an administrator can be revoked but opposed her revocation as an administrator. 21.She denies presenting a forged Death Certificate stating that it was her late mother who petitioned for letters of administration herein and not herself. 22.She denies procuring the impugned Death Certificate and that she was appointed by this court together with the applicant as joint adminstratrix and administrator respectively of the estate of the deceased herein. 23.She avers that the applicant is interested in prolonging this cause so that he can continue enjoying the estate to the prejudice of the daughters of the deceased. 24.This court has considered the summons for revocation of grant and other prayers sought by the applicant. I have also considered the response by the respondent. 25.I have gone through the record in this cause and note that the applicant and the respondent are brother and sister respectively. Both are children to the deceased in this cause and there is no contest in that regard. 26.It is also apparent from the record that this succession cause was filed by the late Milka Jelel Keter (deceased) the widow to the deceased in this cause and the mother of the two parties in this application. 27.The main basis for the summons for revocation of grant herein is that the Death Certificate in respect to the deceased herein Isack Kimaiyo Keter alias Isaac Kimaiyo Keter is suspected to be a forgery. I say suspected because there is no evidence from the investigative agencies indicating that the impugned Death Certificate Serial No.068xxx85 is indeed a forgery. 28.What is however undeniable is that the person who presented the said Death Certificate is the late Milka Jelel Keter (deceased), the initial petitioner for letters of administration in this cause. 29.It is also curious that the applicant in his own sworn affidavit concedes that he handed over a Death Certificate in respect to the deceased herein to his mother, the late Milka Jelel Keter (deceased) in early October 2019 though he says the serial number of Death Certificate he gave was 068xx83 and not the impugned serial number 068xxx85 which was presented and filed by the deceased petitioner in this cause on 17/12/2019. 30.I find the applicant’s grievance about forgery suspect because when his mother petitioned for letters of administration for the estate of the deceased herein, the applicant consented as seen in consent (Form P&A 38) dated 17/12/2019. 31.The applicant was therefore privy to the petition and all documents presented by his late mother on 17/12/2019. The reason for his about turn 6 years later to disown the Death Certificate he himself says he gave to his late mother can only be an indication of bad faith on his part. 32.Secondly and more important is that the demise of the late Isack Kimaiyo Keter on 6/8/2019 is not an issue. His demise is what is certified by the impugned Death Certificates and replicated by the Death Certificates exhibited by the applicant albeit with different serial numbers. 33.This court finds that the applicant has not established that the respondent presented the impugned Death Certificate for purposes of fraud or with an ill intention to disinherit the applicant or any of her siblings. She has even sworn an affidavit that she is not the one who filed or presented the impugned Death Certificate. This court therefore finds that the applicant has no ground to fault the respondent in that regard. She simply gave her consent like the applicant did to their late mother Milka Jelel Keter to petition for letters of administration. 34.This court also finds no basis to direct the DCI to do their duty or fulfil their mandate with respect to any complaint that may have been presented by the applicant. If they find that an offence is disclosed, they do not require orders from this court because of the operation of the provisions of Article 245(4) of the Constitution. In light of the foregoing this court finds no merit in the application dated 7/8/2025 and the same is disallowed. The applicant’s reasons for revocation of grant falls way short of the provision of Section 76 of Law of Succession Act. 35.This court will now turn to the application dated 5/8/2025 where the applicant, Sarah Jepkemboi Maiyo seeks the following prayers namely;i.That the decision of Hon. Justice Mrima made on 21/3/2025 be reviewed.ii.That upon prayer (1) being granted, survey of parcels Kaplamai/Sirende/Block 2 (Ngonyek)74 and Kaplamai/Sirende/Block 2 (Ngonyek)59 be carried out with or without the presence of the respondents. 36.The grounds listed by the applicant for review are as follows;i.That the ruling on the distribution of the estate omitted the 2 parcels namely Kaplamai/Sirende/Block 2 (Ngonyek) 74 and Kaplamai/Sirende/Block 2 (Ngonyek) 59.ii.That it is in the interest of justice to include the 2 properties with Chebarus Plot 66 and motor vehicle Reg No.KBT xxxK Nissan Wingroad as part of the estate. 37.The applicant has supported this application with an affidavit sworn on 5/8/2025. 38.The applicant avers that the ruling of Justice Mrima which she has exhibited was a continuation of a judgment delivered by the same judge on 14/3/2025. That in the said ruling in paragraph 50 the judge omitted land parcels which were the subject of the mode of distribution determined therein and that it is fair and just to include the actual specific parcels of the estate to be distributed to the individual beneficiaries. 39.The applicant has given a proposal of the mode of distribution with respect to parcel Kaplamai/Sirende/Block 2 (Ngonyek)74 and Kaplamai/Sirende/Block 2 (Ngonyek)59. 40.The 1st respondent, Elisha Kipngetich Maiyo has opposed the application for review on grounds of delay and lack of his consent. He contends that the proposal given by the applicant is misleading and erroneous. He further alleges that the applicant seeks to introduce strangers to the estate. He however has not given any names. 41.He concedes that Eric Fuchingo the interested party has always been in occupation of 1.5acres comprised in parcel Kaplamai/Sirende/Block 2 (Ngonyek)59 and that the same does not constitute a discovery of a new matter or evidence to warrant review. 42.He faults Justice Mrima for the mode of distribution adopted stating that the proposals of beneficiaries were not considered. 43.He contends that when judgment was delivered on 14/3/2024 and ruling of 21/3/2025 on distribution mode, there was no grant and the only grant then on record was the one issued to their late mother Milka Jelel Keter. That the only grant issued herein was issued on 28/7/2025. He argues that the grant cannot operate retrospectively and that the grant issued on 28/7/2025 is yet to be confirmed according to him. 44.Both parties to this application have filed respective submissions supporting their respective positions. 45.The application before court is dated 5/8/2025 which substantively seeks to have the ruling delivered by Justice Mrima on 21/3/2025 reviewed. 46.The applicant has invoked the court’s powers to review under Order 45 Rule 1 of the Civil Procedure Rules. 47.The provisions of Order 45 Rule 1 provides as follows;“(1)Any person considering himself aggrieved—(a)by a decree or order from which an appeal is allowed, but from which no appeal has been preferred; or(b)by a decree or order from which no appeal is hereby allowed, and who from the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or the order made, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason, desires to obtain a review of the decree or order, may apply for a review of judgment to the court which passed the decree or made the order without unreasonable delay”.The provisions of Order 45 Civil Procedure Rules applies to succession matters by operation of Rule 63 Probate and Administration Rules. 48.The basis upon which a court can be moved to review its order or decree is where an applicant demonstrates a discovery of a new and important matter which was not within his knowledge upon exercise of due diligence at the time the order sought to be reviewed was made. The other basis is where the applicant demonstrates a good cause. 49.The applicant in this application is not riding on a discovery of a new matter or evidence but she is riding on the existence of a good cause. 50.This court has perused through the ruling of Hon. Justice Mrima dated 21/3/2025 and specifically at paragraph 50 thereof. The good judge found that all children male and female were equal and could not be discriminated on account of gender. He however found that the sons having stayed on the land for long periods they deserved slightly bigger portions and gave the 2 sons 6.765 acres each while the daughters including the applicant were given 3.5 acres each. However in paragraph 50 the good judge distributed the estate comprising the 2 parcels Kaplamai/Sirende/Block 2/Ngonyek/74 and Kaplamai/Sirende/Block 2/Ngonyek/59 without specifying who among the beneficiaries named in paragraph 50(a) of the ruling would get their respective share from which parcel. 51.It is on that basis that this court finds that the applicant has demonstrated good cause and good faith in asking this court to review the ruling specifically to simply restate the particulars of the estate to be distributed. 52.The review in my considered view will even benefit the 1st respondent because whereas the good judge found in paragraph 42 that it was convenient for the 2 sons, the respondents herein to be given their respective shares where they have been occupying and have constructed houses, in paragraph 50, the ruling is silent on which estate the respondent would get his share of 6.765 acres. So in order to bring certainty to the distribution of the estate fairly to all the beneficiaries, there is basis for a review of the cited ruling. 53.This court therefore in order to give effect to the decision or ruling of Justice Mrima dated 21/3/2025, finds merit in the application for review dated 5/8/2025 and the ruling and specifically paragraph 50 is hereby reviewed and the estate of the deceased is distributed as follows;i.Kaplamai/Sirende/Block 2 (Ngonyek)74a.Elisha Kipngetich Maiyo – 6.765acres.b.Sarah Jepkemboi Maiyo – 3.5acres.c.Elizabeth Chepkoech Birgen – 3.5acres.d.Joyce Kitai – 3.5acrese.Miriam Maiyo - 3.5acresf.Duncan Kigen Ngetich – 0.64acresg.Nelly Jeptanui Tengetany – 1.3acresh.Jotham Kirwa Choge and Elizen Jeptolo -3.5acres to hold in trust for Eliud Kipchumba Maiyo, Victor Kipkoech Busenei, Belinda Jemutai and Edgar Kimurgor.ii.Kaplamai/Sirende/Block 2 (Ngonyek)59.a.Jacob Kipkurgat Maiyo – 6.765acresb.Nelly Jeptanui Tengetany-2.2acresc.Erick Fuchingo Marango – 1.5acresiii.Chebarus Plot 66To be sold and proceeds shared equally among all the children of the deceased.iv.Motor vehicle Reg No.KBT xxxKTo be sold and proceeds to be shared equally among all the beneficiaries. 54.In order to bring this matter to an end and for clarity, this court directs that survey be carried out by a licensed surveyor or a Government surveyor on the 2 parcels of land comprising the estate and carry out subdivision according to the certificate of confirmation. In that regard a rectified grant shall issue accordingly. I also direct that as found by Justice Mrima, the two respondents herein will have their share to include as much as possible where they have put up their houses and that of their children, so that as much as practicable no minimal disturbances are caused to the beneficiaries.I direct the surveyor’s fees be paid by all the beneficiaries and to be paid from the proceeds of sales of the properties to be sold before the balance is shared. 55.This court further finds that for the ends of justice to be met and to avoid delays, it directs that the surveyor be given police protection Sibanga police station the nearest police station to where the estate is situate.I also direct that motor vehicle Reg No.KBT xxxK be handed over forthwith to a court broker to be identified by the Deputy Registrar and the appointed court broker to sell the motor vehicle by either public auction or private treaty whichever fetches maximum amount for the benefit of beneficiaries. The beneficiaries can alternatively agree on a court broker upon delivery of this ruling. This being a family matter I make no order as to costs. DELIVERED, DATED AND SIGNED AT KITALE THIS 28TH DAY OF MAY, 2026.HON JUSTICE R.K. LIMOKITALE HIGH COURTRuling delivered in open courtIn the presence ofKoech for the 1st administratorBikundo for the interested partiesJack Kipkurgat Maiyo -2nd administrator in personElisha Maiyo, Erick Marango, Joyce KitayiElizabeth Birgen, Miriam Maiyo & Sarah MaiyoDuke/Chemosop- court assistants