Birir & 7 others v Koech & 6 others (Succession Cause 36B of 2022) [2026] KEHC 11120 (KLR) (23 July 2026) (Ruling)

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT BOMET** **SUCCESSION CAUSE NUMBER 36B OF 2022** **IN THE MATTER OF THE ESTATE OF MAKERER ARAP BIRIR (DECEASED)** **FLORENCE C. BIRIR …………………………………..… 1ST APPLICANT** **ALICE C BIRIR ……………………………………………. 2ND APPLICANT** **RECHO CHEBET ………………………………………… 3RD APPLICANT** **SALLY CHELANGAT ……………………………………. 4TH APPLICANT** **MARY CHEPKEMOI ……………………………………. 5TH APPLICANT** **LEAH CHEMUTAI ………………………………………. 6TH APPLICANT** **JACKLINE CHEPNGETICH ………………………….. 7TH APPLICANT** **EMILY CHEPNGENO ………………………………….. 8TH APPLICANT** **VS** **WILSON KOECH ………………………………….…… 1ST RESPONDENT** **ALFRED KOECH …………………………………… 2ND RESPONDENT** **JOHN KOECH ………………………………………. 3RD RESPONDENT** **JULIUS KOECH ……………………………………. 4TH RESPONDENT** **BENARD KOECH ………………………………….. 5TH RESPONDENT** **PAUL KOECH ………………………………………. 6TH RESPONDENT** **JANE BIRIR ………………………………………… 7TH RESPONDENT** **RULING** 1. In this matter, a Grant was issued to Ludiah Cherop Birir (deceased) and Jane Cheptoo Birir on 28th September 2008. A rectified Certificate of Confirmation of Grant dated 3rd July 2024 was issued to Jane Cheptoo Birir and Paul Kipngetich Koech and the deceased’s estate was distributed as follows: - 2. Paul Kipngetich Koech to get 0.2 ha of KERICHO/CHEMAGEL/1980. 3. Jane Cheptoo Birir to get 0.2 ha of KERICHO/CHEMAGEL/1980. 4. Alfred Kibet Koech to get 7.75 ha of KERICHO/MANARET/SS.70. 5. Bernard Cheruiyot Koech to get 7.75 ha of KERICHO/MANARET/SS.70. 6. Paul Kipngetich Koech to get 6.9 ha of KERICHO/KOIYET/168. 7. Julius Kipyegon Koech to get 6.9 ha of KERICHO/MANARET/SS.70. 8. Paul Kipngetich Koech and Jane Cheptoo to share equally: - 9. Shares in Chebolungu Company. 10. Plot No. 7 Sotik Township. 11. Britam Equity Fund. 12. Shares at Kenya Commercial Bank Ltd. 13. Shares at Standard Chartered Bank. **Notice of Motion Application dated 12th November 2025** 1. The 7th Applicant sought among others an injunction restraining the Respondents from selling, transferring or disposing any of the family property which was the subject of this succession suit until the matter was heard and determined. The 7th Applicant also sought protection orders against her brothers. 2. The 7th Applicant stated that she was the deceased’s daughter and that her brothers did not believe in gender equality and that they threatened to evict her from KERICHO/CHEMAGEL/1980 in which she resided. That her life was in danger as the Respondents had resorted to threats, intimidation and acts of harassment. The 7th Applicant further stated that the Respondents had unlawfully engaged in sale and the disposal of the family properties without consultations. **Response** 1. The 6th and 7th Respondents filed their Grounds of Opposition dated 6th January 2026 and stated that the Application did not disclose a cause of action. That the Application was time barred and incompetent and ought to be dismissed. **Notice of Motion Application dated 15th December 2025** 1. The 1st Applicant sought among others a temporary order restraining Peter Mutai, Christine Chumek, Vincent Maritim, Joel Kirui and Philip Cheruiyot from further encroaching, developing and transferring the suit properties until the case was determined. 2. It was the 1st Applicant’s case that the aforementioned persons were purported purchasers of their late father’s estate and had no right to own any parcel. That the deceased’s estate ought to be shared equally among all the beneficiaries. It was the 1st Applicant’s further case that the purported purchasers indulged in violence and as such, she (1st Applicant) and the 7th Applicant had not been able to access their home. **Response** 1. The 5th Respondent through his Grounds of Opposition dated 2nd February 2026 stated that he purchased 0.03 ha of KERICHO/CHEMAGEL/1980 and had been in peaceful possession and occupation of the said land and that he purchased the same from Ludiah Cherop Birir (deceased). 2. The 1st and 3rd Respondents filed their Grounds of Opposition dated 20th February 2026 and stated that this court lacked jurisdiction to determine the Application as it raised disputes over ownership, use and occupation of land which was the exclusive jurisdiction of the Environment and Land Court. That this court had become *functus officio* after fully determining the succession matter and issued a rectified Certificate of Grant dated 3rd July 2024. 3. It was the 1st and 3rd Respondent’s case that the Application had been overtaken by events as the estate had been legally and fully administered pursuant to the rectified Grant and the beneficiaries had dealt with their respective shares including selling to third parties. It was the 1st and 3rd Respondent’s further case that the 1st Applicant lacked *locus standi* as she was not the Petitioner. 4. I have gone through the entire record, the Notice of Motion Applications dated 2th November 2025 and 15th December 2025, the Grounds of Opposition dated 6th January 2026 2nd February 2026, 20th February 2026 and their respective written submissions. The only issue for my determination was whether the Notice of Motion Applications dated 12th November 2025 and 15th December 2025 have merit. 5. As earlier stated, this court issued a rectified Certificate of Confirmation of Grant dated 3rd July 2024. The matters that the 1st and 7th Applicant raise in their respective Applications touch on issues that are beyond this court as a probate court. I agree with the 1st and 3rd Respondent that a Certificate of Confirmation of Grant represents the finality of a succession matter. In **re Estate of Ernest Kerry Komo (Deceased) [2016] KEHC 715 (KLR),** the court held: - ***“………..Once a grant is confirmed and the property is distributed, as is the case here, the probate court becomes functus officio. The property in question is no longer estate property. It no longer vests in the administrators. It is no longer subject to the Law of Succession Act, Cap 160, Laws of Kenya, from which the probate court draws its authority and jurisdiction.”*** 1. Similarly, in **re Estate of Alice Mumbua Mutua (Deceased) [2017] KEHC 8289 (KLR),** the court held: - ***“Clearly, disputes as between the estate and third parties need not be determined within the succession cause. The legal infrastructure in place provides for resolution elsewhere, and upon a determination being made by the civil court, the decree or order is then made available to the probate court for implementation. In the meantime the property in question is removed from the distribution table. The presumption is that such disputes arise before the distribution of the estate, or the confirmation of the grant. Where they arise after confirmation, then they ought strictly to be determined outside of the probate suit, for the probate court would in most cases be functus officio so far as the property in question is concerned. The primary mandate of the probate court is distribution of the estate and once an order is made distributing the estate, the court’s work would be complete. The proposition therefore is that not every dispute over property of a dead person ought to be pushed to the probate court. The interventions by that court are limited to what I have stated above.”*** 1. From the above authorities, it is clear that this court’s jurisdiction as a probate court ends once it issues a Certficate of Confirmation of Grant and it becomes *functus officio*. However, the law under **section 76 of the Law of Succession Act** allows a probate court to deal with certain issues post issuing a Certificate of Confirmation of Grant. In **Asvalu v Ashiundu & another [2025] KEHC 8191 (KLR),** the court held: - ***“It is trite that the court largely becomes functus officio once it has issued a certificate of confirmation of letters of administration. However, section 76 of the Law of Succession Act provides for instances where the court can be allowed to revoke or annul the Grant notwithstanding the fact that it has been confirmed and provides that:-*** ***“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—*** ***(a) that the proceedings to obtain the grant were defective in substance;*** ***(b) 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;*** ***(c) 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;*** ***(d) that the person to whom the grant was made has failed, after due notice and without reasonable cause either-*** ***(i) 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*** ***(ii) to proceed diligently with the administration of the estate; or*** ***(iii) 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*** ***(e) that the grant has become useless and inoperative through subsequent circumstances.”*** 1. Flowing from the above, it is my finding that this court became *functus officio* when it issued a rectified Certificate of Grant on 3rd May 2024. In other words, this court has no jurisdiction to hear and determine the two Applications. 2. However, as stated above, this court has jurisdiction to deal with an Application for Revocation of Grant. From the record, I have noted that the 1st Applicant filed Summons for Revocation of Grant dated 15th August 2025 and the same has yet to be heard and determined. 3. In the end, I make the following orders: - 4. The Notice of Motion Applications dated 12th November 2025 and 15th December 2025 have no merit and are dismissed. 5. The matter is scheduled for Mention on 17th November, 2026 when directions as to the hearing of the 1st Applicant’s Application for Revocation of Grant dated 15th August 2025 will be given. 6. Each party to bear their own costs. **Ruling delivered, dated and signed at Bomet this 23rd day of July, 2026.** **.................................** **HON. JULIUS K. NG’ARNG’AR** **JUDGE** **Ruling delivered in the presence of:** **Siele/Zachary (Court Assistants)** **Nandi for the 1st Respondent** **Christine Chumek 2nd Respondent** **Dr Philip Cheruiyot 6th Respondent**