https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10118

In re Estate of Muge (Deceased) (Miscellaneous Succession Cause E012 of 2024) [2026] KEHC 10118 (KLR) (10 July 2026) (Ruling) Neutral citation: [2026] KEHC 10118 (KLR) Republic of Kenya In the High Court at Eldoret Miscellaneous Succession Cause E012 of 2024 RN Nyakundi, J July 10, 2026 IN THE MATTER OF THE ESTATE OF KIPSAINA A. MUGE (DECEASED) IN THE MATTER OF HELLEN CHEBOSOLE BOIN Between Hellen Chebosole Boin Applicant and Daniel Kipkoech Saina 1st Respondent William Kiptum Kuresha 2nd Respondent Kiprotich David Rutto 3rd Respondent Ruling 1.Before this Court is Notice of Motion dated 9th April 2026, expressed to be brought pursuant to Sections45 and 47 of the Law of Succession Act and Rule 49 of the Probate & Administration Rules. The Applicant seeks the following orders:a.Spent.b.The orders issued by the Chief Magistrate in Eldoret Chief Magistrates ELC Case No. E048 of 2026 which is an affront of the orders made herein on 27/3/2026 and all consequential orders be stayed pending the hearing and determination of this application interparties.c.In the alternative Kiprotich David Rutto and Daniel Kipkoech Saina, William Kiptum Kuresha be restrained from dealing with the estate of the deceased contrary to the orders issued herein by the honorable Court in its ruling dated 23rd July 2025.d.The order issued by the Chief Magistrate’s Court in Eldoret Chief Magistrate Court in Court made on 27/3/2026 and all consequential orders be vacated or set aside.e.The Chief Magistrate’s Court be directed not to make orders contrary to the orders made herein while handling Eldoret ELC No. E48 of 2026.f.Costs of this application be borne by Kiprotich David Ruto, Daniel Kipkoech Saina, William Kiptum Kuresha and Joseph Kandie Musika. 2.The application is made on the following grounds:a.The Applicant is an administrator to the estate.b.The suit land belongs to an estate of a deceased person.c.The Respondents have colluded to defeat the orders of the high Court.d.The 3 acres the subject of the case in the lower Court forms part of the 10 acres given to the Applicant by the High Court.e.The suit in the subordinate Court is calculated at circumventing the orders of the High Court.f.The 1st Respondent had failed to demonstrate a legitimate interest in this proceedings and having failed to do so has thereafter moved to the Lower Court.g.The Respondents’ conduct is a recipe for chaos.h.That it is in the interest of justice and fairness that this application be granted as prayed herein.i.The Court process is being abused to have the Applicant harassed by the police and land she has ploughed and planted crops on taken away.j.That this application has been brought expeditiously in the interest of justice and fairness. 3.In support of the application is the annexed affidavit of Hellen Chebosole Boin who deponed as follows:a.That I am the Applicant herein and administrator to the estate of Kipsaina Muge and I am competent to swear this affidavit.b.That I was awarded 10 acres on land reference number Moi's Bridge/ Sirikwa Block 1 (Ziwa)/27.c.That Kiprotich David Rutto has endeavored to gain entry into the 10 acres given to me by the honorable Court.d.That I attach herewith copy of the ruling and grant issued on the high Court.e.That the 3rd Respondent well aware of the proceedings herein which he has participated in has abused the Court process by filing case in the subordinate so as to defeat the orders of the high Court.f.That these proceedings were precipitated by the unjust claim of Kiprotich David Ruto in claim to have bought 3 acres from my brothers after our late father died.g.That the Honourable Court upon examining the alleged land sale agreement while resolving the application dated 15/4/2024 found that Kiprotich David Rutto is not a beneficiary to the estate.h.That the said Kiprotich David Rutto did not pursue an appeal from the decision of the honorable Court.i.That the said Kiprotich David Rutto having failed to establish his claim could not thereafter proceed to the lower Court to claim the very thing he had failed to achieve in this proceedings.j.That are on the same side and are being used as a façade or vehicle for the plaintiff in the lower Court to achieve his evil intent. The suit is being prosecuted in collusion.k.That the orders made on 27th March 2026 ought to be set aside.l.That the subordinate Court has issued orders allowing the 3rd Respondent to gain entry into the 10 acres I occupy as per the distribution.m.That the honorable Court had earlier on said that it lacked jurisdiction to handle the matter in Eldoret Chief Magistrate Succession Cause No. E094 of 2022n.That the Respondents are blatantly abusing the process of the Court.o.That the Respondents are challenging orders of the high Court in this suit which is not permissible and tenable.p.That the orders issued by the subordinate ought to be vacated to obviate the intended mischief.q.That in the alternative this Court ought to issue an order restraining the Respondents from dealing with the estate contrary to the distribution and orders of this honorable Court. 4.In furtherance to this discussion the following affidavits were filed in response to the distribution in which the following beneficiaries asserted as follows. In the first instance:a.That I am the widow of the late Nelson Leboo Kureshia who was a son of the deceased Kipsaina Muge.b.That my husband is entitled to half the portion of 14 acres distributed to Daniel Kipkoech Saina for and on behalf of the 2nd house.c.That it is my position that instead of Daniel Kipkoech Saina holding 14 acres on land reference number Mois Bridge/Sirikwa Block 1 (Ziwa) 27 in trust for himself and his deceased brother Nelson Leboo Kureshia each of the two brothers ought to get his share of 7 acresd.That the share of Nelson Leboo Kureshia ought to be registered in my name in trust for myself and all the children of Nelson Leboo Kureshia namely:-a.JANE CHELIMO SIRMAb.NAOMI CHEBETc.ISAAC KIMELI BIId.ASKAH CHEPKEMEI SIRMAe.KARAONA NICK,f.JOAN JEROPg.AMON KIPKOSGEI KURESHIh.DOROTHY CHEMATIAe.That I swear this affidavit in response of the application dated 9/2/2026.Second instancea.That I am the deponent herein and I am competent to swear this affidavit.b.That I was born in 1948 and I was the village elder Kapkaben between 1994 and2021.c.That I knew the deceased Kipsaina Arap Muge and his family is well known to med.That the deceased Kipsaina Arap Muge married the following:-a.Rose Kendagor Mugeb.Jelimo Taptuwei Mugec.Tapkili Mugee.That Rose Kendagor Muge was blessed with the following childrena.Jane Jepwambok Toob.Hellen Chebosole Boinf.That Jelimo Taptuwei Muge was blessed with the following children:a.Esther Ngetichb.Nelson Leboo Sirmac.Daniel Kipkoech Sainag.That Tapkili Jemaiyo Muge was blessed with the following children:a.Paul Kimutai Sainab.Jeptanui Sainac.William Kiptum Kureshiad.Joseph Kandie Muzikae.Sally Sainaf.Jeptarus Sainah.That Rose Jepwambok Too had who survived her eleven children namely:a.Julia Jepkemboib.Leah Kureshac.Paul Mibeid.Daniel Mibeie.Magdalene Jebetf.John Samoeig.Julius Mibeih.Jerotich Mibeiii.Samuel Mibeij.Selly Mibeik.Margaret Mibeii.That in the year 2000 I was summoned by the deceased Kipsaina Muge who gave instructions on how he wanted his land shared out amongst his sons and daughters.j.That l in accordance with the deceased Kipsaina Muge's wishes shared out land reference Mois Bridge Sirikwa Block 1 (Ziwa) 27 equally amongst his sons by demarcating sever (7) acres to each sonk.That 3rd house took 21 acres while the 2nd house took 14 acres.l.That the portion that I shared out amongst all the sons who belong to the 2nd and 3rd house is on the lower side and it is separated from the upper side of the land by a road.m.That later the deceased Kipsaina Muge told me that he will give the remaining 10 acres on the upper said of the land to the 1st house/wife.n.That later on the deceased died and I heard that his children had agreed to sell one (1) acre to cater for the funeral expenses.one (1) acre sold to that they could share the amount of money from the sale of the one (1) acre.o.That Kiprotich David Rutto bought the 2 acres that were on sale.p.That later on about one year after the deceased died | met Daniel Kipkoech Saina, Paul Kimutai Saina, William Kiptum Kureshia and Joseph Kandie and Nelson Leboo Sirma who told me they wanted to sell one (1) acre to facilitate succession proceedingsq.That I sought to know where the representative of the first house was and the sons told me that Helen Chebosole was aware of the arrangement to sell one (1)acre to cater for the cost of succession.r.That the agreement for sale of one (1) was prepared in my presence but Hellen Chebosole did not sign because she was not present.s.That I did not witness the signing of the agreement for sale of 2 acres but Kiprotich David Ruto took possession of 3 acres approximately.t.That this is the family tree of the deceased:-KIPSAINA MUGE1st housea.Jane Jepwambok Toob.Hellen Chebosole Boin2nd housea.Esther Ngetichb.Nelson Leboo Sirmac.Daniel Kipkoech Saina3rd housea.Paul Kimutai Sainab.Jeptanui Sainac.William Kiptum Kureshiad.Joseph Kandie Muzikae.Sally Sainaf.Jeptarus Saina 5.I have considered the facts of this case for a long time since it landed within the jurisdiction of this Court as initially filed by the Administrators and the beneficiaries. In the first instance the primary petition was filed before the Magistrate’s Court but was challenged by one of the beneficiaries based on jurisdiction. Decision 6.In the Kenyan legal system when a polygamous man dies intestate and leaves no surviving spouse the estate is divided among houses, families of each wife according to the number of the children in each house. The distribution is governed by Section40(1) as combined with Section 38 of the Law of Succession Act which provides as follows inter alia:Section 40(1) dictates that the estate is first divided among the houses based strictly on the number of the children in each house and Section38 then applies within each house, meaning the portion allocated to a specific house is divided equally among all the children of that house. 7.Polygamy, best described as the practice of a man having more than one wife at a time has long been practiced in Kenya, especially under customary and Islamic marriage settings. The Marriage Act 2014 recognizes customary marriages as being potentially polygamous, and post-2017, the law now requires one to register their customary marriage. While intestate proceedings of a monogamous deceased can be straightforward, intestate proceedings where the deceased was in a polygamous union has specific factors that need to be considered in administration of the estate. Such factors include, the number of years each spouse was married, the number of children, property acquired through joint contribution (equal or not) and sometimes property shared out during the life of the deceased. 8.The Law of Succession Act further defines a house as a family unit comprising a wife, whether alive or dead at the date of the death of the husband and the children of that wife. While interpreting Section 40 of the Law of Succession Act certain key principles have been developed by Courts as guidance in exercise of judicial discretion so as to meet the ends of justice in the unique circumstances of each case. Thus, in the case of Mary Rono v Jane Rono & Another [2005] eKLR, the Court of Appeal held as follows;“…The possibility that girls in any particular family may be married is only one factor among others that may be considered in exercising the Court’s discretion. It is not a determining factor…”Courts have also held that applying the strict meaning of Section 40 of the Act may cause injustice in certain instances and the Courts take into account the unique circumstances of each case. In the case of Scholastic Ndululu Sura v Agnes Nthenya Sura [2019] eKLR, the Court of Appeal held that;‘…although Section 40 of the Law of Succession Act provides a general provision for the distribution of the estate of a polygamous deceased person, the Court has the discretion to take into account factual circumstances of the particular case that may be relevant in ensuring equitable and fair distribution of the estate.’’An example of the Court considering the circumstances of the matter was in Kyoa Ndewa v Patrick Mulyungi Ndewa & another [2022] eKLR. The Court noted as follows;“The Courts have held that applying the Section strictly in some instances can lead to serious injustice. This was held in Rono versus Rono [2005] eKLR 538, Rael Vulekani Musi v Rachel Edagaye Akola [2016] eKLR and in the Estate of the late George Cheriru Chepkosiom [2017] eKLR. 9.In the Kenyan’s inheritance legal system, the constitutional imperative under Article 27 (1) and (4) as read with Sections 35, 36, 37, 38, & 40 it is abundantly clear that children born in and out of wedlock are considered on an equal basis to inherit the properties of their biological parents without discrimination. This same principle was considered in the case of re estate of Joseph Erick Owino deceased [2022] eKLR. The Court held that:“For purposes of succession, all children, in spite of the marriage status of their parents are entitled to an inheritance. The aforementioned statement refers to children who fall within the parameters of Section 3 (2) of the Law of Succession Act. 10.It is clear from the following cases on how the estate should devolve to the surviving children in absence of a spouse: In re Estate of Michael George Tendwa Said (Deceased): The High Court affirmed that where a polygamous man’s wives predecease him and the beneficiaries disagree, the estate must be shared per house strictly according to the number of children In re Estate of Joel Mulove Wambua (Deceased): The Court established that when a spouse is not surviving, the estate devolves solely to the surviving children. The Court must allocate the estate among the respective houses based on the child count without discriminating against gender. Koech & Another v Chemutai & 2 others: The Court of Appeal reiterated that dividing a polygamous estate per house (with or without a surviving spouse) upholds equality and avoids discrimination between the various children of the deceased 11.This Court visited the parcel of land and some of the issues were on the survey map alignment so that each beneficiary could be allocated a portion of land which was described as rocky. However, in my observation in the presence of the County Surveyor as the representative, that issue never found favor with the Court so as to buy into the surveyor being advised to redraw the boundaries of the parcel of land afresh, which would change the index map absolutely. The second issue which was discussed at length revolved around some portion of the estate to cater for the burial expenses of the deceased and further to cater for other liabilities which were of necessity in which the only source of financial resources would be provided for in the estate account. As I delved into these issues, I bear in mind that this litigation was commenced before the Learned Trial Magistrate which was later challenged before this Court on the ground of jurisdiction. This Court takes judicial notice that one David Kiprotich Rutto was one of those who hold a purchaser’s interest of three acres as provided for under Section 93 of the Law of Succession Act. During my visit, it was abundantly clear that David Kiprotich Rutto had already taken vacant possession including building a home on that very parcel of land. The conflict now is between Hellen Boin and other beneficiaries with regard to the distribution matrix relying upon the wishes of the deceased during his lifetime. However, notwithstanding that kind of evidence, the same does not qualify as an oral Will under the Law of Succession Act to find favour with this Court. This is an intestate succession and not testate. The legal position remains as articulated in the case of Stephen Gitonga M’murithi –v- Faith Ngira Murithi [2015] eKLR, the Court observed as follows:“Section 38 enshrines the principle of equal distribution of the net intestate estate to the surviving children of the deceased irrespective of gender and whether married and comfortable in their marriage or unmarried. Section 40, on the other hand enjoins the inclusion of a surviving spouse as an additional unit to each household of a polygamous deceased. Applying the above principles …… it is our finding that the learned trial Judge fell into an error when he failed to accord equal distribution to all the children of the deceased in violation of Section38 of the Law of Succession Act by discriminating against the married daughters of the deceased…” 12.The Court of Appeal in the case of Elizabeth Chepkoech Salat vs Josephine Chesang Salat [2015] eKLR reaffirmed as to what I can refer as purposive interpretation of Section 40 of the Law of Succession Act in the distribution scheme of the estate as demonstrated in the following extract:“Section 40 of the Act does not give discretion to a Court to deviate from the general principles therein enunciated. Where a matter is contentious and the parties have not reached a consent judgment, the Court is bound to apply the statutory provisions. More specifically, the Court had no power to substitute the statutory principles for its own notion of what is an equitable or just decision. However, Court has a limited residuary discretion within the statutory provisions to make adjustment to the share of each house or of a beneficiary where, for instance, the deceased had during his lifetime settled any property to a house or beneficiary or to decide which property should be disposed of to pay liabilities of the estate or to determine which properties should be retained by each house or several houses in trust”. 13.My understanding of this dispute is more of a sibling rivalry other than internalizing the letter and spirit of the law on inheritance rights under Sections 38 and 40 of the Act with regard to the transmission of shares among the surviving children of the deceased. The portion of the land which was sold did not essentially benefit any of the beneficiaries in their individual capacity but it was towards the welfare and the best interest of the estate. In this respect, this question of Hellen not being consulted is not capable of retrospectively returning the estate into its original form before the liabilities were incurred which I can describe fairly under the doctrine of necessity. The entire parcel of land belongs to the deceased and none of his children should claim superior rights of inheritance than the other, for that would be discrimination which is outlawed under Article 27 (4) of the Constitution. This Court cites decision in Rono vs Rono in which the Court emphasized that;“My understanding of that Section is that while the net intestate estate is to be distributed according to houses, each house being treated as a unit, yet the Judge doing the distribution still has a discretion to take into account or consider the number of children in each house. If Parliament had intended that there must be equality between houses, there would have been no need to provide in the Section that the number of children in each house be taken into account. Nor do I see any provision in the Act that each child must receive the same or equal portion. That would clearly work an injustice particularly in case of a young child who is still to be maintained, educated and generally seen through life. If such a child, whether a girl or a boy, were to get an equal inheritance with another who is already working and for whom no school fees and things like that were to be provided, such equality would work an injustice and for my part, I am satisfied the Act does not provide for that kind of equality. 14.The above principles read together give rise to the generally agreed position that the Section is not a blanket or carte blanche discretion to a Probate Court to deviate from the core principles stipulated in the legislative scheme of Section 40 as read with Section 38 of the Act. 15.The portion of land in question sold to David Kiprotich Ruto is not available for distribution and by the operation of the law under the doctrine of constructive trust that would be unjust enrichment on the part of the estate. The purchaser has already paid in full and taken possession of the land in question and whether the sale can be a subject of nullification, the law would not be invoked to occasion such prejudice and injustice of such a transaction. This doctrine is now well settled in our jurisprudential dictate as can be seen in the following authorities: Kitilit v. Kibet (Civil Appeal 51 of 2015) The Ruling: The Court of Appeal held that when a purchaser pays the full purchase price and takes possession of the land (even through an oral or void agreement), the vendor becomes a constructive trustee for the buyer. Key Takeaway: Lack of Land Control Board (LCB) consent does not preclude a Court from applying a constructive trust to safeguard the buyer's equitable interests and prevent the seller from unjustly enriching themselves. Shah & 7 others v. Mombasa Bricks & Tiles Limited & 5 others (Supreme Court Petition 18 of 2022) The Ruling: The Supreme Court evaluated how constructive trusts interface with registered property titles and land sale contracts under the Land Registration Act. Key Takeaway: The apex Court reviewed established jurisprudence on importing a constructive trust into a land sale agreement to protect beneficial interests and defeat unconscionable registered titles. Kabui v. Kabui (Civil Appeal 415 of 2018)The Ruling: The Court of Appeal applied equitable principles to safeguard the proprietary interests of an occupant who had built a matrimonial home on a parcel of land following a delayed transactionKey Takeaway: Justice and fairness dictate that where purchasers make improvements on a parcel of land, their interests must be safeguarded, overriding strict technicalities Archer & another v. Archer & 2 others (Civil Appeal 39 of 2020)The Ruling: The Court of Appeal enforced a constructive trust regarding the beneficial interests of siblings in family properties following verbal agreements and partial payments.Key Takeaway: The Court recognized that a beneficial interest can be held under a constructive trust by a registered proprietor, even if the strict statutory formalities of a formal written contract are not perfectly met. 16.The key takeaway from the above case law, is that first, the Courts must establish common intention from which an agreement, arrangement, or understanding between the parties was sealed. Second, there must be proof of inconsideration/payment essentially is about the evidence of the payment of the purchase price or contribution towards the acquisition of the property in question from the intestate estate of the deceased. Thirdly, there is evidence of detriment to be suffered if the purchaser must have relied on the common intention to his/her detriment such as by taking possession, farming or constructing buildings. That is exactly the position in so far as the shares measuring 3.0 acres in Parcel No. known as Moi’s Bridge/Sirikwa Block 1 (Ziwa) 27 is concerned. Let us consider a typical land transaction where a vendor (V) agrees to sell his or her title to land to a purchaser (P) in circumstances where P has agreed with V to honor the rights of a third party (T) in relation to the land in question. P agrees to purchase the land and take a transfer of the title from V expressly ‘subject to’ the rights of T. If P seeks to renege on this ‘subject-to’ undertaking, equity can hold P to his undertaking through the imposition of a constructive trust. In the instant case the circumstances are such that I am satisfied that the conscience of the estate owner is affected so that it would be inequitable to allow them to deny the Claimant an interest in the property. It is clear from the Court’s visit to the parcel of land that the Claimant has undertaken a new obligation not otherwise existing before the sale to give effect to the relevant encumbrance or prior interest and that, in undertaking a new obligation, a constructive trust ought to be imposed. Since the basis of David’s case, the Claimant is showing that the conscience of the purchaser is affected, it might be argued that the apparatus of registration is of no relevance to the question arising. 17.As we have seen significantly so the rights of the purchaser cannot be defeated by the objection raised by one Hellen Chebosole Boin. Her share of inheritance is not in violation of Section38 as read with 40 of the Law of Succession Act. In my considered view therefore, this estate shall be shared equitably among the children of the deceased which shall also take into account their current occupation rights in which they have built their homesteads and their improvements which are of a permanent nature. The contested share of David Kiprotich Rutto shall not be interfered with at this late hour of this succession when the estate legally or illegally so made him to believe that he was a bona fide purchaser of value which subsequently has created an undertaking of constructive trust arising to the subject matter thereto. The costs of this application be in the cause. DATED, DELIVERED AND PUBLISHED VIA CTS AT ELDORET THIS 10TH DAY OF JULY 2026.………………………….……….R. NYAKUNDIJUDGE