https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12795

**REPUBLIC OF KENYA** **IN THE HIGH COURT AT ELDORET** **SUCCESSION CAUSE NO. 195 OF 2025** **IN THE MATTER OF THE ESTATE OF ERIC ARAP KIPTUM CHEBIEGO** **(DECEASED)** **MILKA CHEPKORIR ERIC.…………………............................1ST PETITIONER** **NICHOLAS KIPKEMBOI TIGOGO……………………..……………2ND PETITIONER** **VERSUS** **JENNIFER JERUTO CHEPKONGA...........................OBJECTOR/APPLICANT** **Coram: Before Justice R. Nyakundi** **M/S Limo R.K & Co. Advocates** **M/S S. Nyakundi & Co. Advocates** **JUDGMENT** **Background** 1. On or about 4th April 2000, the petition for grant of letters of administration in the matter of the estate Eric Kiptum Arap Chebiego was gazetted as Cause No. 45 of 2000 providing as follows: *That by Milka Chepkorir Eric of P.O Box 1305, Kitale in Kenya the deceased’s widow, through Messrs. S. Nyakundi & Co. Advocates of Kitale, for a grant of letters administration intestate to the estate of Eric Kiptum Arap Chebiego, Late of Kitale, who died at Mt. Elgon Hospital in Kenya on 19th January 1999. The Court will proceed to issue the same unless cause be shown to the contrary and appearance in this respect entered within thirty (30) days from the date of publication of this notice in the Kenya Gazette. Dated the 17th March 2000*. 1. It is from this gazettement Grant of letters of administration intestate was issued on 22nd December 2000 couched in the following language: *Be it KNOWN that on the 21st DECEMBER 2000 letters of Administration intestate of all the estate of ERIC KIPTUM ARAP CHEBIRGO (also known as) deceased late of KTTALE who died domiciled in KENYA on the 19th JANUARY 1999 MOUNT ELGON HOSPITAL KITALE which by law devolves to and vests in his/her personal representative were granted by this Court to MILIKA CHEKORIR ERIC of P.O BOX 1305 KITALE (and NICHOLS KIPIKEMBOI TIGOGO of .P.O BOX 1305, KITALE.) he/they having undertaken faithfully to administer such estate according to law and to render a just and true account thereof whenever required by law so to do. Issued by the High Court/Resident Magistrate's Court/through the registry at this 22nd December 2000* 1. In the Court’s adjudicatory process, a certificate of confirmation of grant was issued initially on 16th November 2006 and a few years later a second one dated 25th of October 2012 both which provide as follows in terms of hierarchy by the Judge coordinate of Kitale High Court. In the first instance the one dated 16th November 2006 provides as follows: *I HEREBY certify that the above written Grant of representation to the estate of the late ERIC KIPTUM ARAP CHEBIEGO issued to MILKA CHEPKORIR ERIC & NICHOLAS KIPKEMBOI TIGOGO therein named has this 16th day of November 2006 been confirmed by the Court pursuant to the provisions of section 71(1) and (3) of the Law of Succession Act. KITALE Dated at this 16TH day of November, 2006.* *(Signature)* *HON. JUSTICE J. R. KARANJA* *Judge of the High Court* ***SCHEDULE*** | | | | --- | --- | | ***Name*** | ***Description of Property*** | | *(a)* | *LAND TITLE NO. KITALE MUNICIPALITY/KOITOGOS/BLOCK 15/146* | | *(b)* | *LAND TITLE NO. UASIN-GISHU/ANABKOI EAST/PLOT 68* | *ALL THE PROPERTIES TO BE REGISTERED AND TRANSFERED INTO THE NAMES OF MILKA CHEPKORIR ERICK & NICHOLAS KIPKEMBOI TIGOGO TO HOLD INTRUST FOR THEMSELVES AND THE OTHER BENEFICIARIES* The alleged second one further states: *I HEREBY certify that the above written Grant of representation to the estate of the late ERIC KIPTUM ARAP CHEBIEGO issued to MILKA CHEPKORIR ERIC & NICHOLAS KIPKEMBOI TIGOGO therein named has this 25TH day of OCTOBER 2012 been confirmed by the Court pursuant to the provisions of section 71(1) and (3) of the Law of Succession Act.* *KITALE Dated at this 25TH day of OCTOBER, 2012.* *(Signature)* *HON. JUSTICE J. R. KARANJA Judge of the High Court* *SCHEDULE* | | | | --- | --- | | ***Name*** | ***Description of Property*** | | *(a)* | *LAND TITLE NO. KITALE MUNICIPALITY/KOITOGOS/BLOCK 15/146* | | *(b)* | *LAND TITLE NO. UASIN-GISHU/ANABKOI EAST/PLOT 68* | | *(c)* | *SHARES IN NIC BANK, STANDARD CHARTERED BANK LTD, KENYA COMMERCIAL BANK LTD & NATIONAL BANK OF KENYA.* | *ALL THE PROPERTIES TO BE REGISTERED AND TRANSFERED INTO THE NAMES OF MILKA CHEPKORIR ERICK & NICHOLAS KIPKEMBOI TIGOGO TO HOLD INTRUST FOR THEMSELVES AND THE OTHER BENEFICIARIES* 1. The parties more so Jennifer Jeruto Tigogo annexed the following extract from the certificates of initial search from the various title deeds namely: | | | | | | --- | --- | --- | --- | | **Tittle No.** | **Nature of Title** | **Approximate area** | **Name of proprietor** | | Uasin Gishu/Ainabkoi/East/68 | Absolute | 16.5Ha | Erick Kiptum Chebiego | | Soy/Kipsomba Block1(Tarakwa)62 | Absolute | 4.047Ha | Erick Kiptum Chebiego | | Kitale Municipality Block 15 Koitogos 3980 | Absolute | 0.102Ha | Lonah Nelima Mbingi | | Kitale Municipality Block 15 Koitogos 3979 | Absolute | 0.102Ha | Leah Musilo Oluyundi | | Kitale Municipality Block 15 Koitogos 3978 | Absolute | 0.101Ha | David Nyandieka Omuka & Lician Bosibori Omwansa | | Kitale Municipality Block 15 Koitogos 3977 | Absolute | 0.101Ha | Nicholas Kipkemboi Tigogo & Milka Chepkorir Erick | | Kitale Municipality Block 15 Koitogos 3976 | Absolute | 0.101Ha | Nicholas Kipkemboi Tigogo & Milka Chepkorir Erick | | Kitale Municipality Block 15 Koitogos 3975 | Absolute | 0.101Ha | Nicholas Kipkemboi Tigogo & Milka Chepkorir Erick | | Kitale Municipality Block 15 Koitogos 3974 | Absolute | 0.093Ha | Lawrence Mose Obae | | Kitale Municipality Block 15 Koitogos 3973 | Absolute | 0.086Ha | Nicholas Kipkemboi Tigogo & Milka Chepkorir Erick | | Kitale Municipality Block 15 Koitogos 3972 | Absolute | 0.108Ha | Nicholas Kipkemboi Tigogo & Milka Chepkorir Erick | | Kitale Municipality Block 15 Koitogos 3971 | Absolute | 0.166Ha | Dinah Chepkor Sawe | | Kitale Municipality Block 15 Koitogos 3970 | Absolute | 0.103Ha | Fred Gichana Atandi | | Kitale Municipality Block 15 Koitogos 3969 | Absolute | 0.124Ha | Joanes Khwaka Barasa | | Kitale Municipality Block 15 Koitogos 3968 | Absolute | 0.105Ha | Nicholas Kipkemboi Tigogo & Milka Chepkorir Erick | | Kitale Municipality Block 15 Koitogos 3967 | Absolute | 0.099Ha | Peter Mwombe Munialo | | Kitale Municipality Block 15 Koitogos 3079 | Absolute | 0.049Ha | Joel Kipkurgat Rono | | Kitale Municipality Block 15 Koitogos 3078 | Absolute | 0.050Ha | Joel Kipkurgat Rono | | Kitale Municipality Block 15 Koitogos 3077 | Absolute | 0.50Ha | Edward Kariuki Ngigi | | Kitale Municipality Block 15 Koitogos 2549 | Absolute | 2.023Ha | Robert K. Tigogo | | Kitale Municipality Block 15 Koitogos 2548 | Absolute | 2.023Ha | Robert K. Tigogo | | Kitale Municipality Block 15 Koitogos 2546 | Absolute | 0.203Ha | Chebus Stephen Kiptanui | | Kitale Municipality Block 15 Koitogos 2544 | Absolute | 0.284Ha | Irene Wanjiro Ngunyi | | Kitale Municipality Block 15 Koitogos 2543 | Absolute | 0.190Ha | Benard Mzee Ibrahim | | Kitale Municipality Block 15 Koitogos 2542 | Absolute | 0.101Ha | John Ngunyi Mwangi | | Kitale Municipality Block 15 Koitogos 2541 | Absolute | 0.194Ha | Enock Onowari Onditi | | Kitale Municipality Block 15 Koitogos 2541 | Absolute | 2.023 | Nicholas Kipkemboi Tigogo | 1. Soon immediately thereafter on 22nd February 2023 Robert Kipchumba filed an affidavit in which was in respect of the summon dated the same date seeking the following orders: 2. The certificate of grant issued and dated 25th October 2012 be cancelled and consequently terminate the Administrators' trust to pave way for distribution of the estate. 3. The Administrators to produce to the Court a full and accurate inventory of the assets and liabilities of the deceased and a full and accurate account of all dealings therewith up to the date of the account. 4. The Administrators do apply for confirmation of the grant made to them and issued on the 22nd day of December 2000 and in default the grant of representation made to the Administrators be revoked or annulled. 5. Any other relief or such orders as may be necessary and expedient for the ends of justice or in the circumstances herein. 6. The costs of this application be provided for. 7. On the grounds:- 1. *THAT the Administrators have failed to take steps to complete the administration of the estate.* 2. *THAT the grant was confirmed but the estate was not distributed.* 3. *THAT a trust was created over the compact estate without splitting into shares and distributing the shares among the persons entitled.* 4. *THAT the shares of the person beneficially entitled to the estate have to be determined.* 5. *THAT all the persons beneficially entitled to the deceased's estate are adults of sound mind.* 6. *THAT it is more than twenty (20) years since a grant of letters of administration intestate was granted and issued to the Administrators hence fair for an account to be furnished.* 7. *THAT the Administrators need to complete the administration of the estate by distributing all the assets to the persons beneficially entitled thereto.* 8. *THAT it is just and fair that the deceased's net estate be ascertained and distributed to all dependants.* 9. *THAT the honourable Court has inherent powers to hear and determine the application.* 8. In support of the application is the sworn affidavit of Robert Kipchumba Tigogo, stated as follows; 9. *THAT I am one of the surviving children of the late Eric Kiptum Arap Chebiego and the applicant herein hence competent to swear this affidavit.* 10. *THAT the full name of the deceased to whose estate the proceedings herein relate is Eric Kiptum Arap Chebiego.* 11. *THAT the deceased died intestate and a grant of letters of administration intestate was made to the Administrators herein.* 12. *THAT the grant made to the Administrator was confirmed on the 25th day of October 2012.* 13. *THAT the grant herein was confirmed without identifying and specifying the shares of all the persons beneficially entitled.* 14. *THAT instead it was agreed that all the assets of the estate of the deceased were to be registered and transferred into the names of the Administrators to hold in trust for themselves and the other beneficiaries.* 15. *THAT I verily believe that at confirmation of the grant the estate ought to have been distributed and thereafter a trust created over the property, so that the distributed property is held in trust for the beneficiaries.* 16. *THAT owing to the circumstance herein for the shares of the beneficiaries to be ascertained or determined the certificate of grant herein ought to be cancelled so as to reopen the estate for distribution as mere determination of the trust will not lead to a distribution.* 17. *THAT once the certificate of grant herein is cancelled the personal representatives have to apply for confirmation of the grant to distribute all the assets and to complete the administration of the estate.* 18. *THAT in the event the Administrators do not apply for confirmation of the grant within such time as the Court may direct it will be just and fair for the Court on its own motion to revoke or annul the grant made to the Administrators and exercise its discretion as to the persons to administer the estate in the best interest of all concerned.* 19. *THAT all the persons beneficially entitled to the estate are adults of sound mind and there is no need of continuation of the trust.* 20. *THAT bearing in mind the time that has lapsed since the letters of administration intestate were granted and when the grant herein was confirmed in order to ascertain the status of the estate of the deceased it will be prudent for the Administrators to produce in Court an inventory of the assets and liabilities, if any, and an account of all dealings therewith.* 21. *THAT the honourable Court has unfettered powers or inherent jurisdiction to hear and determine the application.* 22. *THAT it is just and fair in the circumstances obtaining herein that the deceased's net estate be ascertained and distributed to all the person entitled thereto and the administration be completed.* 23. *THAT it is in the interest of justice and of all the parties or persons beneficially entitled to the estate of the deceased that the prayers sought in the application filed herewith be granted.* 24. On the face of it this application does not seem to be heard and determined on the merits but there is in record a partial settlement agreement dated 28th August 2025 which provides as follows: 25. *Both parties agreed that Susan Tigogo, Erick be excluded from the list of beneficiaries (not beneficiary)* 26. *Both parties impressed the two modes of distribution (from the Administrator Mr. Nicholas and from Robert. They are similar. The modes will be harmonized to be one due* 27. *Not agreed on the distribution of farm implements and machines. Jennifer was not in agreement with the modes of distribution. She had her own which is so but she moved out of the session* 28. *Not agreed on distribution of tress* 29. *Not agreed on distribution of animals* 30. This partial settlement agreement does not seem to be adopted by the Court even the basis of it is not very clear given the very clear record that there was already a certificate of confirmation of grant dated 15th October 2012 which was being challenged by Robert Kipchumba Tigogo on 22nd February 2023 under Sections 47, 76(d) and 83(e) & (f) of the Law of Succession Act and Rules 49 and 73 of the Probate and Administration Rules. 31. This Court on peruse of the record is unable to find a comprehensive ruling with regard to the application filed by Robert Kipchumba Tigogo. This application was also followed almost simultaneously with that of Jennifer Jeruto Chepkonga on the same footing with that of Robert Kipchumba Tigogo. 32. This multiplicity of application continued as seen from the chamber summons dated 14th April 2025 in which the Applicant Nicholas Kipkemboi Tigogo seeking leave of this Court to have the grant of letters of administration issued to him be confirmed which application is based on the supporting affidavit deponed as follows: 33. *THAT I am the Petitioner/Applicant herein hence competent to swear this affidavit.* 34. *THAT I was issued with Letters of Administration over the estate of the late ERIC K. CHEBIEGO on the 24th February 2025.* 35. *THAT the deceased was survived by the following persons;* 1. *NICHOLAS K. TIGOGO* 2. *ROBERT K. TIGOGO* 3. *LYDIA JEROP TIGOGO* 4. *EDNA KIBOREK* 5. *JANET CHERONO* 6. *AGNETA CHEPTANUI* 7. *HILLARY KIPTOO* 36. *THAT no application for provision of the dependants is pending.* 37. *THAT the identification and shares of all persons beneficially entitled to the said estate comprised in the following; -* 1. *5 ACRES KITALE MUNICIPALITY BLOCK 15/KOITOGOS/2539* 2. *5 ACRES KITALE MUNICIPALITY BLOCK 15/KOITOGOS/2540* 3. *5 ACRES KITALE MUNICIPALITY BLOCK 15/KOITOGOS/2548* 4. *5 ACRES KITALE MUNICIPALITY BLOCK 15/KOITOGOS/2549* 5. *37 ACRES KITALE MUNICIPALITY BLOCK 15/KOITOGOS/2547* 6. *0.22 of an ACRES KITALE MUNICIPALITY BLOCK 15/ KOITOGOS/881* 7. *20 ACRES unregistered land at Kipsombe* 8. *40.78 ACRES UASIN GICHU/AINAPKOI EAST/68* 9. *10 ACRES PLOT NO.SOY/KIPSOMBA BLOCK 4(TARAKWA)62* 10. *COWS* 11. *FARM MACHINERY AND IMPLIMENTS* 12. *TREES* ***(a) NICHOLAS KIPKEMBOI TIGOGO*** * 1. *KITALE MUNICIPALITY BLOCK 15/KOITOGOS/2539 measuring 5 ACRES* 2. *KITALE MUNICIPALITY BLOCK 15/KOITOGOS/2540 measuring 5 ACRES* 3. *10 Acres part of unregistered parcel of land at Kipsombe.* 4. *2 Acres part of Kitale Municipality Block 15/KOITOGOS/2547 inclusive of the road reserve.* 5. *13.6 Acres part of Uasin Gishu/Ainapkoi East/68 inclusive of the homestead together with all the developments.* ***(b) ROBERT KIPCHUMBA TIGOGO*** * 1. *KITALE MUNICIPALITY BLOCK 15/KOITOGOS/2548 measuring 5 ACRES* 2. *KITALE MUNICIPALITY BLOCK 15/KOITOGOS/2549 measuring 5 ACRES* *(iii). 10 Acres part of unregistered parcel of land at Kipsombe.* *(iv) 2 Acres part of Kitale Municipality Block 15/KOITOGOS/2547 inclusive of the road reserve.* *(v) Plot No.10 Kapchorwa* *(vi) 13.6 Acres part of Uasin Gishu/Ainapko East/68* ***(c)HILLARY KIPTOO TIGOGO*** * 1. *12 Acres part of Kitale Municipality Block 15/Koitogos/2547 together with the homestead and the developments therein (Rental houses, stores and trees)* 2. *(ii). Plot No.Soy/Kipsombe Block 4.047 Ha (Tarakwa) 62 measuring approximately 10 Acres.* 3. *13.6 Acres part of Uasin Gishu/Ainapko East/68* ***(d) AGNELA TIGOGO*** *A Plot at St. Ursulas known as KITALE MUNICIPALITY BLOCK 15/ KOITOGOS/881 measuring 0.093 Hectares* ***(e) EMMY TANUI*** *2 Acres part of LR NO.KITALE MUNICIPALITY BLOCK 15/KOITOGOS/2547* ***(f) JENIFFER CHEPKONGA*** *2 Acres part of LR NO.KITALE MUNICIPALITY BLOCK 15/KOITOGOS/2547* ***(g) SUSAN TIGOGO*** *One (1) Acre part of LR NO.KITALE MUNICIPALITY BLOCK 15/KOITOGOS/2547* ***(h) LYDIAH TIGOGO*** *4 Acres part of LR NO.KITALE MUNICIPALITY BLOCK 15/KOITOGOS/2547* ***(i) JANET TIGOGO*** *4 Acres part of LR NO.KITALE MUNICIPALITY BLOCK 15/KOITOGOS/2547* ***(J) AGNELA TIGOGO*** *7 Acres part of LR NO.KITALE MUNICIPALITY BLOCK 15/KOITOGOS/2547* 1. ***MACHINERY*** ***(a) NICHOLAS KIPKEMBOI TIGOGO*** * 1. *Jembe (Plough)* 2. *Trailer* ***(b) ROBERT KIPCHUMBA TIGOGO*** * 1. *Tractor* 2. *Tiller* ***(c) HILLARY KIPTOO TIGOGO*** * 1. *Chopper* 2. *Mower* ***COWS AT KIBOMET AND THE FLOCK OF SHEEP*** 1. *That 6 cows shall be reserved for dowry (Kenyoik) of HILLARY KIPTOO TIGOGO. However, the following shall get 1 cow each from the flock* * 1. *Robert K. Tigogo* 2. *Jennifer Chepkonga* 3. *Lydia Tigogo* 4. *Janet Tigogo* 5. *Agnela Tigogo* 6. *The remaining cows in the flock shall be shared equally among the 3 sons together with the flock of sheep.* 2. *7.3* ***COWS AT AINAPKOI AND THE FLOCK OF SHEEP*** *To be shared equally among the sons of the deceased namely;* 1. *Nicholas K. Tigogo* 2. *Robert K. Tigogo* 3. *Hillary K. Tigogo* 4. *7.4* ***SHARES*** 5. *1270 Standard Chartered Bank shares* 6. *2875 KCB, group PLC Shares* 7. *5702 NCBA group PLC Shares* 8. *All to be sold at Nairobi Stock Exchange and the proceeds to be shared equally among all the beneficiaries.* 9. *7.5* ***TREES*** 10. *The trees that were originally found in the farm except the ones in the compound shall be counted, sold and the proceeds to be shared equally.* 11. *7.6. The following family meeting held on 8th March 2025 whose copy I have attached herewith; I have distributed the estate to the beneficiaries as follows* 12. In response to the application is the replying affidavit of Robert Kipchumba Tigogo who avers as follows: 13. *THAT I am the Objector/Respondent hence competent to swear this affidavit.* 14. *THAT application dated 14th April, 2025 has been read and explained to me by learned counsel on record, hence reply as follows:* 15. *THAT the deceased was survived by the following persons:* 1. *EMMY JEPKOECH TANUI – Adult* 2. *JENIFFER JERUTO CHEPKONGA – Adult* 3. *NICHOLAS KIPKEMBOI TIGOGO – Adult* 4. *LYDIAH J. TIGOGO - Adult* 5. *ROBERT KIPCHUMBA. TIGOGO – Adult* 6. *JANET J. TIGOGO – Adult* 7. *AGNELA J. TIGOGO – Adult* 8. *HILLARY K. TIGOGO – Adult* 16. *THAT the identification and shares of all persons beneficially entitled to the said estate comprised in the following:* 1. *10 Acres - Kitale Municipality Block 15/Koitogos/2539 & 2540 registered in the name of NICHOLAS KIPKEMBOI TIGOGO.* 2. *10 Acres- Kitale Municipality Block 15/Koitogos/2548 & 2549 registered in the name ROBERT KIPCHUMBA TIGOGO.* 3. *14.681 Hectares - Kitale Municipality/Koitogos/5119 – registered in the name of MILKA C. ERIC & NICHOLAS KIPKEMBOI TIGOGO. Annexed copy of Official Search marked “RKT -1”.* 4. *0.0930 Hectares – Kitale Municipality Block 15/Koitogos/881* 5. *8.09 Hectares - Soy/Kipsomba Block 11(Kipsomba)/479 – registered in the name of MILKA CHEPKORIRIR ERICK. Annexed copy of Title Deed marked “RKT – 2”* 6. *16.5 Hectares – Uasin-Gishu/Ainabkoi East/68* 7. *10 Acres Plot No. Soy/Kipsomba Block 4/Tarakwa/62* 8. *Cows and Sheep* 9. *Farm Machinery & Implements* 1. *NICHOLAS KIPKEMBOI TIGOGO* 10. *10 Acres – Kitale Municipality Block 5/Koitogos/2539 & 2540* 11. *10 Acres – part of L.R NO. Soy/Kipsomba Block 11(Kipsomba)/479* 12. *3.5 Acres part of Kitale Municipality/Koitogos/5119 inclusive of the Road Reserve.* 13. *13.6 Acres – part of Uasin-Gishu/Ainabkoi East/68 inclusive of Homestead.* 14. *Jembe (Plough) & Trailer* 1. *ROBERT KIPCHUMBA TIGOGO* 15. *10 Acres – Kitale Municipality Block 15/Koitogos/2548 & 2549* 16. *10 Acres –part of Soy/Kipsomba Block 11/Kipsomba/479* 17. *3.5 Acres – part of Kitale Municipality Block 15/Koitogos/5119 inclusive of the Road Reserve.* 18. *Kapchorwa Trading Centre Plot No. 10* 19. *13.6 Acres – part of Uasin-Gishu/Anabkoi East/68* 20. *Fiat Tractor & Tiller* 17. *HILLARY KIPTOO TIGOGO* 1. *13.5 Acres – part of L.R NO. Kitale Municipality Block 15/Koitogos/5119 together with Homestead.* 2. *10 Acres – Plot No. Soy/Kipsomba Block 4/Tarakwa/62.* 3. *13.6 Acre part of Uasin-Gishu/Ainabkoi East/68* 4. *Chopper & Mower* 18. *EMMY J. TANUI 2 Acres part of L.R NO. Kitale Municipality Block 15/5119.* 19. *JENIFFER J. CHEPKONGA 2 Acres part of L.R NO. Kitale Municipality Block 15/5119* 20. *LYDIAH J. TIGOGO 4 Acres part of L.R NO. Kitale Municipality Block 15/5119* 21. *JANET J. TIGOGO 4 Acres part of L.R NO. Kitale Municipality Block 15/5119* 22. *AGNELA J. TIGOGO* 23. *4 Acres part of L.R NO. Kitale Municipality Block 15/Koitogos/5119* 1. *(ii) 0.0930 Hectares Kitale Municipality Block 15/Koitogos/881* 24. *COWS & SHEEP at KIBOMET FARM: That 6 cows shall be reserved for dowry (Kenyoik) of HILLARY KIPTOO TIGOGO. However, the following shall get 1 cow each from the flock.* * 1. *Robert K. Tigogo* 2. *Jennifer Chepkonga* 3. *Lydia Tigogo* 4. *Janet Tigogo* 5. *Agnela Tigogo* 6. *The remaining cows in the flock shall be shared equally among the 3 sons together with the flock of sheep.* 25. *COWS & SHEEP at AINABKOI FARM: To be shared equally among the sons of the deceased namely:* * 1. *Nicholas K. Tigogo* 2. *Robert K. Tigogo* 3. *Hillary K. Tigogo* 26. *SHARES* * 1. *1270 Standard Chartered Bank Shares* 2. *2875 KCB, group PLC Shares* 3. *5702 NCBA group PLC Shares All to be sold at Nairobi Stock Exchange and the proceeds to be shared equally among all the beneficiaries.* 27. *TREES IN KIBOMET & AINABKOI FARMS Each beneficiary to manage/take care of trees in their respective portions to safeguard against wanton destruction of trees in line with Government Policy and for posterity.* 28. *THAT one SUSAN J. TIGOGO is not entitled to a share of the Estate of the deceased due to the fact that she is not an heir/dependant* 29. Finally, before this Court is Summons for Revocation or Annulment of Grant dated 4th day of April 2025, expressed to be brought under Section 76 of the Succession Act and Rule 44 of The Probate and Administration Rules. The Applicant seeks the following orders: 30. *That the grant of letters of administration issued on 22nd December, 2000 and confirmed on 16th November, 2006 be revoked or annulled.* 31. *That the costs of the application be cost in the cause.* 32. On the grounds that: 33. *The proceedings to obtain grant were defective in substance as the form and procedure adopted was irregular.* 34. *The grant was obtained by the Petitioners without the knowledge of other beneficiaries who are equally entitled to the estate.* 35. *The Petitioners obtained the grant fraudulently by making false statements and by concealment from the Court of material facts concerning the estate and beneficiaries.* 36. *The consent of persons of equal or lesser priority was not sought, and or obtained.* 37. *The grant was obtained by means of an untrue allegations of a fact essential on point of law to justify the making of grant.* 38. In support of the application is the supporting affidavit of Jennifer Jeruto Chepkonga who deponed as follows: 39. *That I am the applicant/Objector herein hence competent to swear this affidavit.* 40. *That I am the biological daughter of the late Eric Kiptum Kibiego.* 41. *That the above named Eric Kiptum Kibiego died on 19th January, 1999 and a fraudulently obtained grant of probate was made to Milka Chepkorir Eric and Nicholas Kipkemboi Togogo on 22nd December, 2000 and confirmed on 16th November, 2006* 42. *That the respondents herein proceeded and applied for grant of letters of administration without my involvement and yet they knew that I am the legitimate beneficiary of the estate.* 43. *That I am informed by my advocate on record, which information I believe to be true and correct, that every person having equal or prior right to the grant of representation has to consent or renounce such right or be issued with citation to renounce such right.* 44. *That in Form 5, the Petitioners purported to disclose that there were 7 dependants left behind when they were well aware that the deceased left me behind. (Note: Paragraphs 7 and 8 are not present in the source text)* 45. *That as such the Petitioners are guilty of material concealment which if the same could have been disclosed to the Court it will not have issued the grant.* 46. *That consequent upon the foregoing it is clear that the grant of letters of administration intestate should be annulled and revoked.* 47. *That in view of all the foregoing I pray that this application to be allowed.* 48. In response to the application is the Replying Affidavit of Jennifer Jeruto Chepkonga stated as follows: 49. *That I am an adult of sound mind and a daughter of the deceased hence competent to swear this affidavit.* 50. *That I have read the chamber summons dated 14th April, 2025 and wish to respond as follows;-* 51. *That the deceased was survived by the following beneficiaries;-* 1. *Emmy Jepkoech Tanui;* 2. *Jenniffer Jeruto Chepkonga;* 3. *Nicholas Kipkemboi Tigogo;* 4. *Lydiah Tigogo;* 5. *Robert Kipchumba Tigogo;* 6. *Janet J. Tigogo;* 7. *Agnela J. Tigogo;* 8. *Hillary J. Tigogo.* 52. *That the estate of the deceased is comprised of the following assets;-* 1. *Kitale Municipality Block 15 (Koitogos)/146 which property has largely been wasted through intermeddling, subdivisions and fraudulent transfers* 2. *Soy/Kipsomba Block 1 (Tarakwa)/62* 3. *Soy/Kipsomba Block 11 (Kipsomba)/479. d. Uasin Gishu/Ainabkoi East/68.* 4. *Kapchorua Centre Plot No. 10.* 5. *Farm Machineries and implements.* 6. *Shares in;- a) KCB; b) Standard Chartered Bank.* 7. *Livestock.* 53. *That it is therefore clear that the Petitioner is merely keen in perpetuating the criminal acts of intermeddling by proposing to distribute the remainder of resultant titles of Kitale Municipality Block 15 (Koitogos)/146 exclusively among themselves in total disregard to our interests.* * 1. *Kitale Municipality Block 15 (Koitogos)/881;* 2. *Kitale Municipality Block 15 (Koitogos)/2539;* 3. *Kitale Municipality Block 15 (Koitogos)/2548;* 4. *Kitale Municipality Block 15 (Koitogos)/2549;* 5. *Kitale Municipality Block 15 (Koitogos)/3968;* 6. *Kitale Municipality Block 15 (Koitogos)/3972;* 7. *Kitale Municipality Block 15 (Koitogos)/3973;* 8. *Kitale Municipality Block 15 (Koitogos)/3975;* 9. *Kitale Municipality Block 15 (Koitogos)/3976;* 10. *Kitale Municipality Block 15 (Koitogos)/3977;* 11. *Kitale Municipality Block 15 (Koitogos)/5119;* 54. *That the daughters of the deceased have therefore been deliberately left out and discriminated against purely on gender basis and this is unfortunate and untenable.* 55. *That it is therefore only fair that all the resultant titles arising from initial illegal distribution and subdivision of Kitale Municipality Block 15 (Koitogos)/146 and Soy/Kipsomba Block 11(Kipsomba)/479 be cancelled and registration of the deceased be restored and estate be distributed as follows;-* 1. *Kitale Municipality Block 15 (Koitogos)/146 equally among;- Emmy Jepkoech Tanui, Jenniffer Jeruto Chepkonga, Nicholas Kipkemboi Tigogo, Lydiah Tigogo, Robert Kipchumba Tigogo, Janet J. Tigogo, Angela J. Tigogo and Hillary J. Tigogo.* 2. *Soy/Kipsomba Block 1 (Tarakwa)/62 equally among:- Emmy Jepkoech Tanui, Jenniffer Jeruto Chepkonga, Nicholas Kipkemboi Tigogo, Lydiah Tigogo, Robert Kipchumba Tigogo, Janet J. Tigogo, Angela J. Tigogo and Hillary J. Tigogo.* 3. *Soy/Kipsomba Block 11 (Kipsomba)/479 to be shared equally among:- Emmy Jepkoech Tanui, Jenniffer Jeruto Chepkonga, Nicholas Kipkemboi Tigogo, Lydiah Tigogo, Robert Kipchumba Tigogo, Janet J. Tigogo, Angela J. Tigogo and Hillary J. Tigogo.* 4. *Uasin Gishu/Ainabkoi East/68 be shared equally among;- Emmy Jepkoech Tanui, Jenniffer Jeruto Chepkonga, Nicholas Kipkemboi Tigogo, Lydiah Tigogo, Robert Kipchumba Tigogo, Janet J. Tigogo, Angela J. Tigogo and Hillary J. Tigogo.* 5. *Kapchorua Plot No. 10, Farm Machineries and implements and shares at KCB Bank, Standard Chartered Bank be valued and thereafter sold and proceeds be shared equally among; Emmy Jepkoech Tanui, Jenniffer Jeruto Chepkonga, Nicholas Kipkemboi Tigogo, Lydiah Tigogo, Robert Kipchumba Tigogo, Janet J. Tigogo, Angela J. Tigogo and Hillary J. Tigogo.* 56. The above background, with corresponding applications provides a roadmap of unlocking this long-standing protracted succession dispute. The position I take is first to answer the question whether the certificates of confirmation of grant dated 16th day of November 2006 and 25th day of October 2012 still retain their fidelity as final decrees of the Probate Court on the metrics of distribution of the estate. **Decision** 1. This forms the substructure of the litigation in the matter of the estate as between the Petitioners and part of the beneficiaries being Milka Jepkorir and Nicholas Kipkemboi Tigogo. Besides the record demonstrating application for revocation of grant issued to one Nicholas Kipkemboi Tigogo and the same having been confirmed to him with his co-Administrator Milka Chepkorir Eric no legal evidential material is on record that the certificate of confirmation of grant dated 15th October 2012 find its way by way of a judgment or ruling of the Court exercising jurisdiction under Section 76 to have it revoked or annulled or altogether. These affidavits by Robert Tigogo and Jennifer Tigogo makes no mention of whether at one time or another that certificate of confirmation of grant which was never executed by both Milka Jepkorir and Nicholas Kipkemboi Tigogo is still a legal instrument capable of distribution of the estate under the law of Succession Act. It is also interesting the matter was referred to mediation and some kind of partial agreement was reached dated 28th August 2025 with no name of the Facilitator or Mediator and no evidence of the participants who participated in arriving at the partial mediation agreement. The defect of the instrument did not stop there, for the entire record of the Court shows no evidence of adoption of the partial mediation agreement as a judgment of the Court. 2. It is also intriguing that the Petitioner Nicholas Kipkemboi Tigogo moved the Court once again that the grant of letters of administration issued to him be confirmed without a word as to what happened in the certificate of confirmation of grant dated 25th of October 2012. The story continues unfolding, Nicholas himself has not explained as to what happened to the distribution matrix outlined in the aforesaid grant in so far as the titles of the intestate estate are concerned. This Court could have benefited from an interim probate account by the Administrator or Administrators of the intestate estate of the deceased who have the other beneficiaries hostage without sharing both the movable and immovable assets survived of the deceased. I am faced with this sad scenario in which there has been limitation of rights of inheritance by the Administrators under the guise that they were holding the properties in trust for themselves and the other dependants. 3. From the filing of this case there are many questions than answers particularly on the distribution of this estate to the beneficiaries. One cannot pinpoint which is the operative certificate of grant of confirmation being applied to distribute the estate. This Court also has placed its legal lens on the beneficiaries survived of the deceased under Section 29 of the Law of Succession Act with the latest proposals given by Nicholas as the Administrator and the rejoinder proposal Robert Tigogo there is still disparities on the scheme of distribution. The search lands certificates from the Land Office seems to indicate some of the assets have been transferred to third parties who are not part of the beneficiaries as defined under Section 29 of the Act. All these questions require an answer from the Probate Court. 4. My first question is whether the Administrators were holding properties in trust for themselves? It is the law in Kenya that the Administrator or Administrators holds the property of a deceased person strictly in a fiduciary capacity and trust for the rightful beneficiaries. Under local succession law and judicial precedents, personal representatives do not own the estate assets outright; rather, legal title is vested in them to manage, preserve, and eventually distribute to those entitled. The guiding principles and statutory upon which Administrators are to perform their functions: * ***Fiduciary Obligation:****An Administrator acts as a trustee for the beneficiaries, creditors, and any valid claimants.* * ***Statutory Trust Duties:****Under Section 84 of the Law of Succession Act (Cap 160), personal representatives automatically act as trustees where continuing trusts arise (such as for minor beneficiaries or life interests).* * ***The Trustee Act:****The Trustee Act (Cap 167) explicitly defines "trustees" to include executors and Administrators.* 1. This fiduciary relationship found its way to the Courts as the following cases demonstrate. Thus: * ***First, in re Estate of Sharif Gafar Ahmed Mohamed (Deceased) [2025] KEHC 2356:****Confirmed that personal representatives hold legal title merely in trust for beneficiaries, not for their own benefit.* * ***Second, in re Estate of Ngaruhiya Kamau (Deceased) [2025] KEHC 4303:****Emphasized that Administrators hold listed assets in trust specifically to protect and preserve the estate for beneficiaries.* * ***Third, in re Estate of Muchuru Njeru (Deceased) [2026] KEHC 1007:****Reaffirmed fiduciary duties under Section 83 of the Law of Succession Act, focusing on mandatory distribution and accountability* * ***Fourth, in re Estate of Gakunyua Ndegwa (Deceased) [2022] KEHC 12463:****Highlighted that the core role of a personal representative is fiduciary management of trust property.* 1. The first certificate of confirmation of grant dated 16th day of November 2006 was sanctioned by the Court had this clause in cited: *all the properties to be registered and transferred into the names of Milka Chepkorir Erick & Nicholas Kipkemboi Tigogo to hold in trust for themselves and the other Beneficiaries.* This means that the registration into their own names was to effectuate the fiduciary relationship and not to undertake any activity or action which occasions prejudice or injustice to the beneficiaries. There is no evidence that the shares due to the beneficiaries have been transferred to each of the beneficiaries as per the provisions of the Law of Succession Act. There is however prima facie evidence that the registration of the estate property into the names of the Administrators resulted into intermeddling of the property of the deceased by disposing it off to other third parties who are not part of the dependants of the deceased as defined under Section 26 of eth Law of Succession Act. 2. It seems to me that there are competing claims between the Administrators and the Objector over deceased person's estate. In the circumstances, it is only an Administrator or Administrators who can explain to the Probate and Administration Court how the deceased person’s estate passed on to the purchasers of the estate for value which discriminated against other beneficiaries who are in equal status in terms of inheritance of the deceased’s estate. The administration of estates is a critical aspect of private law, as it determines how the property, rights, and liabilities of a deceased person are preserved, managed, and ultimately transferred to beneficiaries or heirs in Kenya. Emphasis is placed on the fiduciary nature of estate management, which requires personal representatives to act in good faith, with diligence and accountability, in collecting assets, settling debts, and distributing the estate in accordance with the law. It has been established within our legal system that the administration of the estates in Kenya continues to face significant challenges, including delays, family disputes, lack of awareness of legal procedures and conflicts from the interaction of different systems of law. 3. There is indeed a necessity for continuous legal reform, public enlightenment more so by the Administrators to understand and appreciate their roles in the estate administration of the deceased. Let us pause for a moment and ask the question with regard to this estate, how long is enough for the Administrators to deliver justice to the beneficiaries and rightful owners to the intestate estate of the deceased. Now it is over 25 years and the protracted legal litigation continues as between the beneficiaries and the Administrators. 4. From the time of creation our humanity should give in that death is inevitable. Every human being is unavoidably going to die at one point or another. Unfortunately, evidence shows that upon the death of the deceased and by descent the owner of the wealth creation subject to inheritance to the survivors take a back seat not to fairly, expeditiously and proportionately distribute the residual estate among themselves and in any event to the creditors for they forget death is inevitable. This Court takes judicial notice that there are many cases out there in which the Administrators duly appointed under Section 66 of the Law of Succession Act to complete the distribution to the beneficiaries for the judgment of God on death sets in earlier than anticipated. Hence, multiplicity of applications in our probate registry seeking leave of the Probate Court for a remedy on substitution of Administrators. I dare say to the Administrators and executors who find themselves in this fiduciary relationship to bear in mind as they take the vow of administration of the estate life in this world is not permanent. In my considered view that might have been the spirit of the Law of Succession Act in setting out timelines of 18 months to initiate the petition for succession and have the distribution completed within that time frame with the probate account shared with the Court. 5. It is evident from the affidavits sworn by Jennifer Jeruto Chepkonga, the fiduciary position accorded the Administrators Nicholas Kipkemboi Tigogo to act in good faith has been abused. He was under legal duty to act honestly, prudently and in the best interests of the beneficiaries at all times. There is prima facie evidence of a conflict of interest if the search certificates from the Land Registration Office is anything to go by in holding this view on the state of the estate of the deceased. 6. There is an impression wrongly so created in the mind of Administrators that the clause in the certificate of grant of confirmation is a carte blanche authority to intermeddle with the estate in a manner which threatens inheritance rights of the core beneficiaries. To hold in trust is an ambiguous doctrine under the Law of Succession Act unless it is registered under the Trustees Act or the Trustees (Perpetual Succession) Act (Cap.164 of the Laws of Kenya) (Act). Trusts also are subject to other statutes that affect the operation of Trusts in Kenya such as the Income Tax Act and the Tax Procedures Act. Indeed, if the Administrator was executing his duties under a Trust as known in law he ought to have registered it with the Land Registry under the Registration of Documents Act. The implication of this is that any step taken by the Administrator without the consent of other beneficiaries to deal with the estate in any other way is null and void. 7. It is from this background that one cannot resist to state that the Administrator Nicholas Kipkemboi Tigogo going by the affidavit evidence delivered on oath by Jennifer Jeruto Chepkonga is in breach of fiduciary duty and by riding on the word holding in trust for themselves and his co-Administrator and on behalf of the beneficiaries but without ever transmitting to the respective beneficiaries who rank first to the creditors was riding on a dead horse to undertake any transactions which violated the inheritance rights of his co-beneficiaries. One wonders which certificate of confirmation of grant did the Administrators apply to carry out all those transactions to third parties including transfer of titles of shares which belong to the beneficiaries. 8. The second fundamental question is whether this Probate Court can countenance the irregularity, impropriety, illegality, and unjustness of the entire process which now seems to be skewed towards the male gender without due consideration of the female gender in the same intestate estate. My answer to this is found in interrogating Section 76 of the Law of Succession Act. This predominant provisions provides inter alia that a Court may revoke or annul a grant of letters of administration for reasons including fraud, concealment of material facts or failure to apply for confirmation within one year. For purposes of driving the focus point on this matter and for completeness of the letter and spirit of Section 76 of the Law of Succession Act our legislature language expressly states as follows: *A grant of representation, whether or not confirmed, may at any time be revoked or annulled if the Court decides, either on application by any interested party or of its own motion—* 1. *That the proceedings to obtain the grant were defective in substance;* 2. *That the grant was obtained fraudulently by the making of a false statement or by the concealment from the Court of something material to the case;* 3. *That the grant was obtained by means of an untrue allegation of a fact essential in point of law to justify the grant notwithstanding that the allegation was made in ignorance or inadvertently;* 4. *That the person to whom the grant was made has failed, after due notice and without reasonable cause either—* 5. *To apply for confirmation of the grant within one year from the date thereof, or such longer period as the Court order or allow; or* 6. *To proceed diligently with the administration of the estate; or* 7. *To produce to the Court, within the time prescribed, any such inventory or account of administration as is required by the provisions of paragraphs (e) and (g) of section 83 or has produced any such inventory or account which is false in any material particular; or* 8. *That the grant has become useless and inoperative through subsequent circumstances.* These are the key legal grounds which an applicant must prove evidentially before revocation can be ordered by the Probate Court: * *Fraud or Concealment: Obtaining the grant by making false statements or hiding essential family members or beneficiaries.* * *Defective Proceedings: Making core mistakes or leaving out mandatory statutory procedural requirements during the initial petition.* * *Failure to Administer: Neglecting to apply for confirmation of the grant within one year or failing to produce true inventories and accounts.* * *Useless/Inoperative Grant: Circumstances changing post-issuance, such as the death of a sole Administrator without completion of duties* 1. The Courts have spoken severally on this issue of revocation as can be appreciated from the following authorities: * *In re Estate of Mbori (Deceased) [2026] KEHC 3470: High Court revoked letters of administration, nullified transmissions, and disqualified an Administrator for concealing material details* * *In re Estate of Samwel Muiruri Nganga [2025] KEHC 179: Addressed delayed summons for revocation and cancellation of consequential property transactions* * *In re Estate of Charles Njuguna Kamata [2025] Nyeri High Court: Revoked a confirmed grant where a co-Administrator passed away and the distribution omitted rightful lineal descendents.* * *Supreme Court Petition on Consent and Omission [2007/2025]: Affirmed that obtaining a grant and confirmation without the knowledge or consent of adult legal beneficiaries is proper ground for total revocation.* * *In re Estate of Talai Kimoling (Deceased) [2026] KEHC 812: Addressed a scenario where the sole Administrator passed away. The Court confirmed that when an Administrator dies before completing administration, the original grant becomes inoperative under Section 76(e), requiring revocation and the issuance of a fresh grant (de bonis non administratis).* * *In re Estate of Martha Taprandich Misoi (Deceased) [2025] KEHC 4928: Reaffirmed that concealing the identity or property interests of an eligible applicant/beneficiary constitutes concealment of material facts, satisfying the threshold for nullifying a grant.* * *Kuria v Irungu (Succession Appeal E028 of 2022) [2025] KEHC 3340: The Court allowed an appeal to revoke a grant where families were left out, ordering a fresh petition representing all competing family branches.* 1. The administration of this estate has been riddled with many challenges where the process of obtaining the grant itself is defective on the face of the law. The mandatory requirement of consent from the beneficiaries is lacking. Further, there is breach of Sections 35, 36, 37 & 38 of the Law of Succession Act which expressly provides as follows: ***35.*** *Where intestate has left one surviving spouse and child or children (1) Subject to the provisions of section 40, where an intestate has left one surviving spouse and a child or children, the surviving spouse shall be entitled to— (a) the personal and household effects of the deceased absolutely; and (b) a life interest in the whole residue of the net intestate estate: Provided that, if the surviving spouse is a widow, that interest shall determine upon her re-marriage to any person. (2) A surviving spouse shall, during the continuation of the life interest provided by subsection (1), have a power of appointment of all or any part of the capital of the net intestate estate by way of gift taking immediate effect among the surviving child or children, but that power shall not be exercised by will nor in such manner as to take effect at any future date. (3) Where any child considers that the power of appointment under subsection (2) has been unreasonably exercised or withheld, he or, if a minor, his representative may apply to the Court for the appointment of his share, with or without variation of any appointment already made. (4) Where an application is made under subsection (3), the Court shall have power to award the applicant a share of the capital of the net intestate estate with or without variation of any appointment already made, and in determining whether an order shall be made, and if so, what order, shall have regard to— (a) the nature and amount of the deceased’s property; (b) any past, present or future capital or income from any source of the applicant and of the surviving spouse; (c) the existing and future means and needs of the applicant and the surviving spouse; (d) whether the deceased had made any advancement or other gift to the applicant during his lifetime or by will; (e) the conduct of the applicant in relation to the deceased and to the surviving spouse; (f) the situation and circumstances of any other person who has any vested or contingent interest in the net intestate estate of the deceased or as a beneficiary under his will (if any); and (g) the general circumstances of the case including the surviving spouse’s reasons for withholding or exercising the power in the manner in which he or she did, and any other application made under this section.* *(5) Subject to the provisions of sections 41 and 42 and subject to any appointment or award made under this section, the whole residue of the net intestate estate shall on the death, or, in the case of a widow, re-marriage, of the surviving spouse, devolve upon the surviving child, if there be only one, or be equally divided among the surviving children.* ***36.*** *Where intestate has left one surviving spouse but no child or children (1) Where the intestate has left one surviving spouse but no child or children, the surviving spouse shall be entitled out of the net intestate estate to— (a) the personal and household effects of the deceased absolutely; and (b) the first ten thousand shillings out of the residue of the net intestate estate, or twenty per centum thereof, whichever is the greater; and (c) a life interest in the whole of the remainder: Provided that if the surviving spouse is a widow, such life interest shall be determined upon her re-marriage to any person. (2) The Minister may, by order in the Gazette, vary the amount specified in paragraph (b) of subsection (1). (3) Upon the determination of a life interest created under subsection (1), the property subject to that interest shall devolve in the order of priority set out in section 39.* ***37.*** *Powers of spouse during life interest A surviving spouse entitled to a life interest under the provisions of section 35 or 36 of this Act, with the consent of all co-trustees and all children of full age, or with the consent of the Court shall, during the period of the life interest, sell any of the property subject to that interest if it is necessary for his own maintenance: Provided that, in the case of immovable property, the exercise of that power shall always be subject to the consent of the Court.* ***38.*** *Where intestate has left a surviving child or children but no spouse Where an intestate has left a surviving child or children but no spouse, the net intestate estate shall, subject to the provisions of sections 41 and 42, devolve upon the surviving child, if there be only one, or shall be equally divided among the surviving children.* 1. It emerges from the record, that this transfer of property of the deceased has been effected by the Administrator to third parties and titles issued which in essence disinherits the legitimate beneficiaries of their rightful shares which they are entitled as per law established. The prominence of the certificate of search with their respective particulars shows the following persons as having benefited from the estate and in effect rendering the biological children of the deceased bankrupted of their inheritance and subsequently discriminated against in violation of Article 27 (4) of the Constitution. This is what is contained from the documentary evidence extracted from the land registry by the Objector indicative if left to stand there are beneficiaries to this estate who would suffer substantial loss which cannot be compensated by way of damages. Although this issue had been discussed elsewhere this Court has thought it necessary to reflect here in the decision making process to demonstrate the conduct of the Administrator or Administrators to this estate in what is regarded as an infringement and violation of the Law of Succession Act on the scheme of distribution of an intestate estate. Thus outsiders’ family lineage are purported to benefit from the graveyard of the deceased leaving his own very children as refugees by virtue of denying them their birth rights: | | | | | | --- | --- | --- | --- | | **Tittle No.** | **Nature of Title** | **Approximate area** | **Name of Proprietor** | | Uasin Gishu/Ainabkoi/East/68 | Absolute | 16.5Ha | Erick Kiptum Chebiego | | Soy/Kipsomba Block1(Tarakwa)62 | Absolute | 4.047Ha | Erick Kiptum Chebiego | | Kitale Municipality Block 15 Koitogos 3980 | Absolute | 0.102Ha | Lonah Nelima Mbingi | | Kitale Municipality Block 15 Koitogos 3979 | Absolute | 0.102Ha | Leah Musilo Oluyundi | | Kitale Municipality Block 15 Koitogos 3978 | Absolute | 0.101Ha | David Nyandieka Omuka & Lician Bosibori Omwansa | | Kitale Municipality Block 15 Koitogos 3977 | Absolute | 0.101Ha | Nicholas Kipkemboi Tigogo & Milka Chepkorir Erick | | Kitale Municipality Block 15 Koitogos 3976 | Absolute | 0.101Ha | Nicholas Kipkemboi Tigogo & Milka Chepkorir Erick | | Kitale Municipality Block 15 Koitogos 3975 | Absolute | 0.101Ha | Nicholas Kipkemboi Tigogo & Milka Chepkorir Erick | | Kitale Municipality Block 15 Koitogos 3974 | Absolute | 0.093Ha | Lawrence Mose Obae | | Kitale Municipality Block 15 Koitogos 3973 | Absolute | 0.086Ha | Nicholas Kipkemboi Tigogo & Milka Chepkorir Erick | | Kitale Municipality Block 15 Koitogos 3972 | Absolute | 0.108Ha | Nicholas Kipkemboi Tigogo & Milka Chepkorir Erick | | Kitale Municipality Block 15 Koitogos 3971 | Absolute | 0.166Ha | Dinah Chepkor Sawe | | Kitale Municipality Block 15 Koitogos 3970 | Absolute | 0.103Ha | Fred Gichana Atandi | | Kitale Municipality Block 15 Koitogos 3969 | Absolute | 0.124Ha | Joanes Khwaka Barasa | | Kitale Municipality Block 15 Koitogos 3968 | Absolute | 0.105Ha | Nicholas Kipkemboi Tigogo & Milka Chepkorir Erick | | Kitale Municipality Block 15 Koitogos 3967 | Absolute | 0.099Ha | Peter Mwombe Munialo | | Kitale Municipality Block 15 Koitogos 3079 | Absolute | 0.049Ha | Joel Kipkurgat Rono | | Kitale Municipality Block 15 Koitogos 3078 | Absolute | 0.050Ha | Joel Kipkurgat Rono | | Kitale Municipality Block 15 Koitogos 3077 | Absolute | 0.50Ha | Edward Kariuki Ngigi | | Kitale Municipality Block 15 Koitogos 2549 | Absolute | 2.023Ha | Robert K. Tigogo | | Kitale Municipality Block 15 Koitogos 2548 | Absolute | 2.023Ha | Robert K. Tigogo | | Kitale Municipality Block 15 Koitogos 2546 | Absolute | 0.203Ha | Chebus Stephen Kiptanui | | Kitale Municipality Block 15 Koitogos 2544 | Absolute | 0.284Ha | Irene Wanjiro Ngunyi | | Kitale Municipality Block 15 Koitogos 2543 | Absolute | 0.190Ha | Benard Mzee Ibrahim | | Kitale Municipality Block 15 Koitogos 2542 | Absolute | 0.101Ha | John Ngunyi Mwangi | | Kitale Municipality Block 15 Koitogos 2541 | Absolute | 0.194Ha | Enock Onowari Onditi | | Kitale Municipality Block 15 Koitogos 2541 | Absolute | 2.023 | Nicholas Kipkemboi Tigogo | 1. This Court cannot ignore the grave error propounded by the Administrators in the distribution of this estate. It matters not whether the parcels of land in question were transmitted to the purchasers relied on the facts that Nicholas Kipkemboi Tigogo and Milka Chepkorir Erick had their names indicated in the title deeds issued to transfer the respective shares. The truth of the matter and the law the title deeds in the names of the above Administrators ought to have had a clear caveatable interest by the biological children of the deceased. Essentially what must have happened is that the Administrators propounded the titles as authentic and genuine capable of devolving right to the purchasers while fully aware that there was fraudulent concealment of material facts of what constitutes a net estate of the deceased. Therefore, any sale agreement to land procured by the purchasers on deliberate suppression of facts by the Administrators constitutes a just cause for revocation of those transactions under Section 76 of the Law of Succession Act. 2. This succession cause within procedural and substantive law the Objector Jennifer Jeruto Chepkonga has a right to context the grant of letters of administration from the original proceedings to the final decree commonly known as the certificate of confirmation of grant. It is the Constitution dictate under Article 27 (1)(4) of the Constitution that such a beneficiary who has a right for inheritance and has not been fairly, and proportionately provided for could seek to revoke the grant of representation may it be the primary one or the one which has been confirmed. In a single household Section 38 of the Law of Succession Act is non-ambiguous whether applying the literal or purposive interpretation of the Statute. There is no evidence at all on record that the daughters of the deceased renounced in writing and signed in person that they would not be demanding a share of the estate of their father as defined under the Law of Succession Act. They cannot therefore be shortchanged by their brothers as that would be an infringement of the equality clause. It is now the law in Kenya that the Kenyan woman side to be a joint heir to the ancestral property is by birth and does not depend whether her father is alive or not. It is now settled law beyond peradventure that no distribution of an estate can discriminate as between sons and daughters within the provisions of Article 27(4) of the Constitution. Generally, the specific of the Constitution is that the father to the daughters does not need to be alive to claim equal inheritance rights of his estate. They are entitled as of right and as a birthright even when the head of the family is alive. Therefore, any person purporting to deny female heirs equal shares in ancestral property violates equality principles under Article 27 of the Constitution unless explicit, legally valid, exclusionary tribal custom is proven by the Administrator or by the father if he is alive. 3. The purpose of Article 27 of the Constitution read as a whole sometimes given our legal foundational philosophy might be thought to apply and recognize the paradigm of binary gender of male and female based on that ground of sex assigned by birth including the law relating to marriage as provided for under the Marriage Act of Kenya, adoption, inheritance without laying emphasis on transgender identity due to lack of legislation. Sometimes it is assumed that the so referenced transgender persons necessary have a genital anatomy problem. That is far from the truth. That is the very reason which ordained me to recommend in another decision that time is ripe for Kenyan Parliament to enact Transgender Person’s Protection Rights Act to provide a statutory legal framework in which discrimination and equal treatment of this category of persons can be aligned with the Constitution. The Law of Succession Act unfortunately when being enacted in 1981 did not envisage existence of transgender person or those who would be applying for change in gender identity. That is why the Act generally speaks of inheritance rights to sons and daughters. 4. The Supreme Court in the case of *Fatuma Athman Abud Faraj vs Ruth Faith Mwawasi & 2 Others [2024] KESC 61KLR* held that illegitimate children are entitled to all rights in the properties of parents both self-acquired and ancestral. Therefore, it follows that an illegitimate daughter is also entitled to the property rights in the father’s property although in our case the Objectors are in the first degree of consanguinity and affinity in the bloodline of the deceased. It is now trite in our legal system that customs play an important role in shaping community identities and providing social continuity. It must be understood however that custom and cultures are not static but they are forged in a particular historical and social context and expected to adapt as society evolves like in our very own Republic of Kenya. There is now a transformative Constitution which stands at the pinnacle of our democratic governance underpinned in Article 10 of the Constitution. It can therefore be safely stated that customs of inheritance which are out of step with contemporary constitutional imperatives of dignity and justice must be varied or set aside in favour of our constitutional values on Article 10. The Kenyan Constitution under Article 27 guarantees all citizens equality before the law and it explicitly prohibits discrimination based on sex, birth, marriage, gender and social class etc. The real test for our Courts however lies at the center of their duty to resolve disputes under Article 50(1) of the Constitution and in doing so they must translate this vision of equality and non-discrimination into a critical reality so that no woman in Kenya has to fight for what is already rightfully hers. 5. This Constitution 2010 is rightly the most significant touchstone for determining the scope of women’s rights in the post-independence period. In essence the bar was raised following the enactment of the Constitution 2010 in which equality and non-discrimination became fundamental and enforceable legal rights which scope in my view could be expanded to read into it issues of social and economic justice. One can see brightly so from the facts of this case a dispute on succession revolving around the conflict between traditional non-customary laws which limited female/daughters heirs legal standing and the progressive constitutional provisions and the Law of Succession Act which aimed to ensure equal inheritance rights for women. 6. In the instant matter the discussion would be incomplete without borrowing a leaf on the principles from the extract in the reported cases of 2011 SCMR with reference to case law (PLD 1976 SC 258) in which it was observed as follows: *There is great looseness in the use of the words ‘void’ and ‘voidable’ and very often they are used interchangeably. Nevertheless, there is a clear distinction between things ‘void’ and ‘voidable’ though the two terms are not infrequently used without special regard for the difference or distinction particularly where such distinction is of no consequence or where the attention of the Court is not particularly directed to this distinction.*The expression ‘void’ in the strict or accurate sense means ‘absolutely null’ that is to say incapable of ratification or confirmation and of no effect whatever.*The word ‘voidable’ on the other hand is something which could be avoided or confirmed and which is not absolutely void. In other words, what is voidable has some force or effect, but which may be set aside or annulled for some error or inherent vice or defect. ‘Thus that which is voidable operates to accomplish the thing sought to be accomplished until the fatal vice in the transaction has been judicially ascertained and declared’.*A common place instance of a void act or transaction in the sense of an absolute nullity is an agreement by a person under a legal disability e.g. a minor or a person of unsound mind*. Such act is void ab initio and is incapable of ratification or confirmation. Law forbids the enforcement of such a transaction even if the minor were to ratify it after attaining majority. This is clearly distinguishable from a case in which a thing or an act is ‘relatively void’ which the law condemns as wrong to the individual concerned who can avoid it by appropriate proceedings. A common place instance of such transaction is that which is brought about by undue influence, fraud etc.,*which remains of full effect unless avoided by appropriate proceedings’ 1. It is from the strength of the historical litigation of this succession cause, the Constitutional imperatives on equality clause and non-discrimination under Article 27(1)(4) of the Constitution as construed with Article 10 of the same Constitution together with the letter and the spirit of the Law of Succession Act being Section 35, 36, 37 & 38 of the Act on the scheme of distribution of the intestate estate in a single household that I invoke Section 76 of the Act to annul all certificates of confirmation of grant dated 16th November 2006 and 12th October 2012 and the purported partial mediation agreement for being fatally defective on grounds of non-disclosure and suppression of material facts by the Administrators of the intestate estate. It therefore follows that all transactions purported to be initiated by the Administrators to perfect titles of ownership to third parties which would automatically impair right of inheritance to their sisters under Section 38 of the Law of Succession Act as purposively interpreted with Article 27 of the Constitution shall be considered as null and void. That this Court acknowledges that there was a caveated clause in the certificates of confirmation of grant that the Administrators were to a limited extent to have the title registered in their names from that of the deceased so that they can transact in transmitting the intestate estate to the beneficiaries and to themselves as individuals. What happened upon the title being transferred to the Administrators was the opposite of the script in the legal instruments governing the distribution of the estate. This is what one can describe as an estate which has been ruined by the Administrators to occasion irremediable loss to some of the legitimate beneficiaries which cannot be compensated by way of monetary damages. For avoidance of doubt, it matters not how far rights have been transmitted. The law does not shy away that void transaction has no legal effect from the start, for the subject matter was not in existence for distribution unless and until all the beneficiaries positively identified under Section 29 and the eight (8) of them in the matter of the estate of the deceased they have secured their inheritance rights under Section 38 of the Law of Succession Act. The costs of this decision be in the cause being a family matter. 2. Orders accordingly. **DATED, DELIVERED VIA CTS & EMAIL THIS 10TH DAY OF AUGUST 2026.** **………………………………….…..** **R. NYAKUNDI** **JUDGE**