[2017] KEHC 2700 (KLR)

REPUBIC OF KENYA

IN THE HIGH COURT OF KENYA AT KERICHO

SUCCESSION CAUSE NO.302 OF 2015

IN THE MATTER OF THE ESTATE OF RICHARD KIPNGETICH BENGAT-(DECEASED)

GRACE CHEMUTAI BENGAT……………...……….........1ST PETITIONER

ALFRED KIMUTAI NGETICH………….…………….......2ND PETITIONER

JACKSON KIPYEGON NGETICH…..……………..........3RD PETITIONER

VERSUS

NGETICH EDWIN KIPROTICH………….……….…........1ST OBJECTOR

DAVID KIPRONO NGETICH………………………….....2ND OBJECTOR

RULING

1. The deceased, Richard Kipngetich Bengat, died on 15th July 2009. According to form P&A5 filed with the application for letters of administration intestate, the deceased was polygamous and had the following houses and children:

Martha Cherop Bengat- First Wife - Deceased

a)Hellen Chepkemoi Daughter - unmarried-Deceased

b)Dinah Chepngeno Sigei - Daughter - Married -67 years

c)Alfred Kimutai Ngetich - Son -62 years

d)Joseah Kipkoech Ngetich - Son -53 years

e)Benjamin Kipkirui Ngetich - Son - deceased

Grace Chemutai Bengat - Widow

a)David Kiprono Ngetich - Son - 61 years

b)Jackson Kipyegon Ngetich- Son -53 years

c)John Kiplangat Barchok - Son -48 years

d)Erick Cheruyoit Ngetich - Son -42 years

e)Edwin Kiprotich Ngetich - Son -40 years

f)Janeth Chebet - Daughter- Married -38 years

g)Irine Chekoech- Daughter-Married -36 years

h)Beatrice Chelangat- Daughter-Married -32 years.

2. His deceased daughter, Hellen Chepkemoi, was survived by a daughter, Irene Chelangat, while his deceased son, Benjamin Kipkurui Ngetich was survived by a widow, Irene Chebii Ngetich.

3. The deceased’s estate comprised one property, Kericho/Kabianga/2380 measuring approximately 5. 95 hectares.

4. An application for letters of administration intestate was filed in this court on 16th July 2015 by Grace Chemutai Bengat, Alfred Kimutai Ngetich and Jackson Kipyegon Ngetich. The applicants named the following as the beneficiaries of the estate:

First House

a)Irene Chelangat - granddaughter

b)Dinah Chepngeno Sigei - Married daughter

c)Alfred Kimutai Ngetich - Son

d)Joseah Kipkoech Ngetich- Son

e)Irine Chebii Ngetich - Daughter-in-law

Second House

a) Grace Chemutai Bengat - Widow – 80 years

b) Jackson Kipyegon Ngetich - Son

c) John Kiplangat Barchok - Son

d) Erick Cheruiyot Ngetich - Son

e) Edwin Kiprotich Ngetich - Son

f) Janeth Chebet - Married daughter

g) Irine chepkoech - Married daughter

h) Beatrice Chelangat - Married daughter

i) Johnstone Kipruto Ngetich - Married daughter

j) David Kiprono Ngetich - Son

5. A consent to the letters of administration being issued was signed by all the named beneficiaries except Edwin Kiprotich Ngetich and David Kiprono Ngetich.

6. The application was duly gazetted and a grant issued to the petitioners on 23rd October 2015. However, by an objection filed in court on 12th October 2014, the objectors, Edwin Kiprotich Ngetich and David Kiprono Ngetich objected to the grant and alleged that the deceased had left a written will dated 13th June 2005.

7. On 12th July 2016, Edwin Kiprotich Ngetich filed a petition by way of cross-application for probate of written will. He also filed an answer to Petition for Grant in which he alleged that his consent to the application had not been sought and that the applicants had failed to disclose that there was a written will.

8. A response sworn by Jackson Kipyegon Ngetich denied the allegation that the objectors had not been served and asserted that the alleged will was not authentic. In his affidavit sworn on 29th May 2017, he proposed that the estate of the deceased be distributed as follows:

a)David Kiprono Ngetich - 1. 3 Acres

b)Jackson Kipyegon Ngetich - 1. 3 Acres

c)John Kiplangat Barchok - 1. 3 Acres

d)Erick Cheruiyot Ngetich - 1. 3 Acres

e)Edwin Kiprotich Ngetich - 1. 3 Acres

f)Johnstone Kipruto Ngetich - 1. 3 Acres

g)Alfred Kimutai Ngetich - 2 Acres

h)Joseah Kipkoech Ngetich - 2 Acres

i)Irine Chebii Ngetich - 2 Acres

j)Irine Chelangat - 1 Acre

9. In his affidavit on his preferred mode of distribution sworn on 29th May 2017, Edwin Kprotich Ngetich (Ngetich Edwin Kiprotich) deposed that his sisters have renounced their interest in the estate. He reiterated his contention that the deceased had left a written will and he annexed a copy of the said will which is dated 13th June 2005, names David Kiprono Ngetich as the executor of the will of the deceased, and is drawn by the law firm of Bett, Kipyegon & Co. Advocates of P. O. Box 1434 Kericho. He therefore proposed that the estate be distributed among the sons of the deceased, with each son receiving 0. 661 hectares.

10. The court notes that the objectors first raised the issue of the written will of the deceased way back on October 12 2015 when they first filed their objection to the making of the grant. They have not, however, made any effort to have the question of the validity or otherwise of the will established, despite filing a petition by way of cross –application for probate of written will and an answer to the petition for letters of administration intestate.

11. The record indicates that when the matter was scheduled for hearing of the petition by way of cross –application for probate of written will and an answer to the petition on 17th November 2016, Mr. Koech, who was appearing for the objectors on that day, indicated to the court that he had spoken to his clients and they were of the view that they may drop their application if they were included as administrators of the estate, which would leave the distribution of the estate as the only issue for determination.

12. However, on 3rd April 2017, Ms. Koech for the petitioners informed the court, and Mr. Mwita appearing for the objectors confirmed, that there was no need for inclusion of the objectors as administrators as their house was already represented among the administrators appointed by the court. They both therefore agreed that each side should file its preferred mode of distribution. The court notes that the 3rd petitioner, Jackson Kipyegon Ngetich, belongs to the same house as the objectors.

13. I have considered the record of the court and the respective positions of the parties. I take the proceedings before the court on 17th November 2016 as indicative of the decision of the objectors to abandon their claim that the deceased had left a written will. That being the case, their claim in the affidavit sworn by Ngetich Edwin Kiprotich that only the sons should inherit, in accordance with the written will of the deceased, cannot stand. Either there was a written will, or there was none. If there was indeed such a will, then they should have proceeded to prosecute their application dated 12th July 2016 and prove the will in accordance with the law and the provisions of the Law of Succession Act. They cannot keep blowing hot and cold on this issue.

14. Accordingly, this court deems the deceased as having died intestate. The mode of distribution proposed by the petitioners appears the most reasonable in the circumstances, including, as it does, all the beneficiaries of the deceased, regardless of their gender. It further includes the widow of one of the son of the deceased, as well as the child of a daughter of the deceased who died, leaving one issue. It is also the mode of distribution consented to by all the beneficiaries except the two objectors.

15. The estate of the deceased shall therefore be distributed as proposed in paragraph 2 of the affidavit of Jackson Kipyegon Ngetich sworn on 29th May 2017 as follows:

a) David Kiprono Ngetich - 1. 3 Acres

b) Jackson Kipyegon Ngetich - 1. 3 Acres

c) John Kiplangat Barchok - 1. 3 Acres

d) Erick Cheruiyot Ngetich - 1. 3 Acres

e) Edwin Kiprotich Ngetich - 1. 3 Acres

f) Johnstone Kipruto Ngetich - 1. 3 Acres

g) Alfred Kimutai Ngetich - 2 Acres

h) Joseah Kipkoech Ngetich - 2 Acres

i) Irine Chebii Ngetich - 2 Acres

j) Irine Chelangat - 1 Acre

16. There shall be no order as to costs.

Dated Delivered and Signed at Kericho this 4th day of October 2017.

MUMBI NGUGI

JUDGE

Ms. Koech instructed by the firm of Koech Chepkurui & Associates for the petitioners.

Mr. Mwita instructed by the firm of Bett & Co. Advocates.