[2022] KEHC 16876 (KLR)

In re Estate of Andrew Kibii Lagat (Deceased) (Succession Cause 287 of 2007) [2022] KEHC 16876 (KLR) (23 December 2022) (Ruling)

Neutral citation: [2022] KEHC 16876 (KLR)

Republic of Kenya

In the High Court at Eldoret

Succession Cause 287 of 2007

RN Nyakundi, J

December 23, 2022

IN THE MATTER OF THE ESTATE OF ANDREW KIBII LAGAT ALIAS ANDREW KIBII CHEBET (DECEASED)

Between

Clara Jepchirchir Lagat

1st Petitioner

Mark Kipngetich Biy

2nd Petitioner

and

Flora Jeserem Murisha

1st Objector

Elizabeth Jemaiyo Kiptanui

2nd Objector

Catherine Cherono Chemweno

3rd Objector

Ruling

1. The matter herein relates to the estate of the late Adrew Kibii Lagat alias Adrew Kibii Chebet who died on 6th February, 1983.

2. The petition for the grant of letters of administration intestate of the estate of Andrew Kibii Lagat also known as Adrew Kibii Chebet were petitioned by his wife Clara Jepchirchir Lagat and his son Mark Kipngetich Biy (Deceased)

3. Upon petitioning for the grant of letters of administration with respect to the deceased estate, the Objectors Flora Jeserem Murisha, Elizabeth Jemaiyo Kiptanui and Catherine Cherono Chemweno instituted Objection proceedings against the application for the grant herein.

4. The Objectors contend that parcel of land known as Irong/Korkitony/64 measuring approximately 40 acres listed as one of the assets of the deceased herein belonged to one Edward Chelagat Arap Chebet (Deceased) who was their father. The Objectors maintain that the said Edward Chelagat Arap Chebet (Deceased) had nominated the deceased herein to hold the subject land in trust of the other family members.

5. The Objectors also maintain that the subject land does not belong to the deceased and that they have a beneficial interest in the subject land.

6. The Objectors deposed that the said Edward Chelagat Arap Chebet (Deceased) was a polygamous man having married three wives who sired both male and female children. The Objectors outlined the beneficiaries of the deceased as follows;House ASaniego Jeptoo Chelagat – widow (Deceased)John Koech Chelagat – son (Deceased)Andrew Kibii Lagat – son (Deceased)Flora Jeserem Murisha – daughterSalina Jerotich Karanei – daughterHouse BKimoi Pauline Jepkemoi – widow (Deceased)Elizabeth Jemaiyo Kiptanui – daughter (Deceased)House CCatherine Cherono Chemweno – widowElizabeth Jepkorir Lagat – daughterAngela Chebiego Kosgei – daughter

7. The 1st Petitioner on the other hand contends that the Objectors are neither dependants nor beneficiaries of the deceased herein. The 1st Petitioner maintains that parcel of land known as Irong/Korkitony/64 belongs to the deceased herein and is registered in the deceased’s name.

8. The 1st Petitioner contends that the Objectors are her sisters to the deceased herein. the 1st Petitioner submitted that the Objectors have not established any beneficial interest over the subject land. The 1st Petitioner contends that there is no indication whatsoever that the deceased held the suit land in trust of the Objectors herein.

9. The 1st Petitioner is ready and willing to give a portion of the subject land to one Elizabeth Jepkorir Lagat and Angela Chebiego Kosgey being sisters to the deceased herein who she has always treated as her own children.

10. The only issue that is currently pending before this Court is the issue of the distribution of the estate of the deceased. On record there are two proposed modes of distributions filed by the parties herein.

11. The Objectors propose that the estate of the deceased be distributed as follows: -NO. NAME DESCRIPTION OF PROPERTY SHARE

Clara Talaa Kipkoech Irong/ Korkitony/64 7 acres

Clara Jepchirchir Lagat Irong/ Korkitony/64 7 acres

Flora Jeserem Kimutai Irong/ Korkitony/64 4 acres

Salina Jerotich Karanei Irong/ Korkitony/64 4 acres

Albert Kiplimo Kiptanui Irong/ Korkitony/64 4 acres

Elizabeth Jepkorir Lagat Irong/ Korkitony/64 8 acres

Angela Chebiego Kosgei Irong/ Korkitony/64 4 acres

Clara Jepchirchir Lagat Chemichemi Farm Plot No. 155/579/96 96 acres

Clara Jepchirchir Lagat One storey building in Kariokor Race Course Nairobi (4bedroom house) Whole

Clara Jepchirchir Lagat One storey building plan view (South B Nairobi) Whole

Clara Jepchirchir Lagat Gratuity Lumpsum Kshs.83,640/=Monthly Pension Kshs. 6,970. 60/=

12. The 1st Petitioner on the other hand proposes that the estate of the deceased be distributed as follows: -NO. NAME DESCRIPTION OF PROPERTY SHARE

Church Irong/ Korkitony/64 2 acres

Clara Jepchirchir Lagat Irong/ Korkitony/64 10 acres

Mark Biy (to is widow) Irong/ Korkitony/64 4 acres

Beatrice Chebet Irong/ Korkitony/64 4 acres

Ruth Jepkemboi Lagat Irong/ Korkitony/64 4 acres

Diana Jeruto Irong/Korkitony/64 4 acres

Audrey Jackline Jepkosgei Lagat Irong/Korkitony/64 4 acres

Elizabeth Jepkorir Lagat Irong/ Korkitony/64 4 acres

Angela Chebiego Kosgei Irong/ Korkitony/64 4 acres

Determination 13. I have, considered the law applicable in this matter, the oral evidence and the two proposals on the mode of distribution of the estate that has been placed before me. The issue for determination by this Court is which the proposed modes distribution ought to be adopted by this Court.

14. The only bone of contention is this matter is parcel of land known as Irong/Korkitony/64. On one hand the 1st Petitioner claims that the subject land belonged to her deceased husband and on the other hand the Objectors claim that the subject land belonged to their late father, one Edward Chelagat Arap Chebet (Deceased) and was held in trust by the deceased herein on behalf of the rest of the family members.

15. From onset I must point out that he who alleges must prove. The Objectors claim to have a beneficial interest on the subject land by virtue of a trust. In view of the foregoing allegations, this Court gave the parties latitude to tender viva voce testimony. At the hearing one thing that particularly stood out was the fact that all the Objectors did not have anything to shown that the deceased herein held the subject land in their trust. No evidence has been adduced of any such undertaking.

16. The 1st Petitioner on her part was able to produce a copy of green card that indicates that the subject land is in fact registered in the names of the deceased herein.Section 29 of the Law of Succession Act defines a dependant as: -“a)the wife or wives, or former wife or wives, and the children of the deceased whether or not maintained by the deceased immediately prior to his death;b)such of the deceased’s parents, step-parents, grand-parents, grandchildren, step-children, children whom the deceased had taken into his family as his own, brothers and sisters, and half-brothers and half-sisters; as were being maintained by the deceased immediately prior to his death; and c) where the deceased was a woman, her husband if he was being maintained by her immediately prior to the date of her death."

17. It is not disputed that the Objectors herein are sisters and a step-mother to the deceased, however there is nothing whatsoever on record that shows that the Objectors were dependants of the deceased. Without sufficient proof of disinheritance, the Court finds that the Objectors’ allegations do not hold water.

18. Having said so, I hereby direct that for purposes of bringing these proceedings to an end, the estate of the late Andrew Kibii Lagat alias Adrew Kibii Chebet be distributed as follows: -NO. NAME DESCRIPTION OF PROPERTY SHARE

Church (did not specify the name) Irong/ Korkitony/64 2 acres

Clara Jepchirchir Lagat(shall enjoy a life interest and thereafter shall to devolve to her children) Irong/ Korkitony/64 10 acres

Mark Biy (did not indicate the name of his widow) Irong/ Korkitony/64 4 acres

Beatrice Chebet Irong/ Korkitony/64 4 acres

Ruth Jepkemboi Lagat Irong/ Korkitony/64 4 acres

Diana Jeruto Irong/Korkitony/64 4 acres

Audrey Jackline Jepkosgei Lagat Irong/Korkitony/64 4 acres

Elizabeth Jepkorir Lagat Irong/ Korkitony/64 4 acres

Angela Chebiego Kosgei Irong/ Korkitony/64 4 acres

19. Each party shall bear its own costs noting that the claim herein is a succession cause involving members of one family.It is ordered so.

DATED, SIGNED AND DELIVERED AT ELDORET VIA EMAIL THIS 23RD DAY OF DECEMBER, 2022. ............................R. NYAKUNDIJUDGE