[2018] KEHC 6709 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KERICHO

SUCCESSION CAUSE NO. 88 OF 2002

IN THE ESTATE OF DOUGLAS KIPSIRINGOT……………DECEASED

AND

JOSEPHINE CHEBET RUTO ………………….……………PETITIONER

VERSUS

ALICE CHEPNGENO RUTO……………………….…………..OBJECTOR

RULING

1. This matter relates to the estate of Douglas Kipsiringot (Deceased), who died intestate on 15th October 2001. By a consent order entered into on 25th June 2003, letters of administration intestate were issued jointly to Josephine Chebet Rutoand Alice Chepng’eno Ruto, the widows of the deceased. The grant was thereafter confirmed on 19th October 2009.

2. Thereafter, the parties entered into a consent as a result of which the court directed the District Surveyor, Bomet, to visit L.R. No. Kericho/Silibwet/663 to carry out a survey to establish the actual acreage of the land, the area covered by tea bushes, and to propose an access road. The court record indicates that the District Surveyor carried out the directions of the court and filed his report in court. Pursuant to this report, the court rendered its ruling dated 31st July 2014.

3. It appears that the applicant in the present application, Josephine Chebet Ruto, was not satisfied with the said ruling of 31st July 2014. About two years later, by her application dated 28th June 2016, she sought the following orders from this court:

1. That the Honourable Court be pleased to review and rectify the grant issued herein and confirmed in favour of the parties and orders issued by the honourable court on 31/07/2014: Josephine Chebet Ruto and Alice Chepngero Ruto. (sic)

2. That the accurate acreage of land parcels no. Kericho/Silibwet/663 be ascertained.

3. That the objector either by herself or her children be called upon to account for rent proceeds from the rental premises on L.R. No. 631/61/V (IR No.30648)

4. That further, the actual acreage of tea plantation. (sic)

5. That the honorable court revoke the transfer the certificate which erroneously transferred the deceased shares unto the respondent.

6. That the respondent be compelled to refund the applicant a sum of Kshs. 28, 280/- incurred for valuation.

7. That upon review/rectification the court give direction on the implantation (sic) of the grant.

8. Cost of the application be provided for.

4. The application is based on the following grounds:

a) The honorable court created a road of access on land parcels no.Kericho/Silibwet/663 measuring which has reduced the actual confirmed distribution as per the grant.

b) That tractor registration mark Kub 584 was left and 15 heads of cattle.

c) That the objector has been collecting rent from the premises on L.R.No.631/61/V (IR NO.30648) of kshs.22,000/- per month from November 2001 upto March 2010.

d) That respondent has erroneously caused the deceased’s share to be transferred into her names.

e) That further the applicant is the only one incurring costs ordered by the honourable court and she needs a refund.

f) That it has emerged that the deceased had sold 1 acre comprised in Kericho/Silibwet/663 during his life time to one Mr. Solomon Koech.

g) That the applicant after the demise of the deceased, the applicant planted her own tea bushes of about 1,000/- and the deceased during his life had transferred into the applicant 5,000 of tea bushes unto her name.

5. In the affidavit in support of the application, the applicant deposes that she is a co-administrator of the estate of the deceased, which was confirmed by this court on 19th October 2009. She further deposes that the court issued orders on 31st July 2014 which affected the estate of the deceased, in particular land parcel number Kericho/Silibwet/663 from 23. 23 acres to 22. 75 and the acres of tea plantation from 6 acres to 4. 5 acres.

6. Further, that a road of access has been created and is in use.

7. She deposes further that the orders of 31st July 2014 reduced the total acreage of Kericho/Silibwet/663 from 23. 23 acres to 22. 75 and the acreage of tea plantation to 4. 5 acres.

8. The applicant further avers that the court did not consider the status of a purchaser, one Solomon Koech, to whon the deceased had sold 1 acre out of Kericho/Silibwet/663 during his lifetime. She further deposes that it has come to her knowledge that the respondent has secretly transferred shares of the deceased into her name.

9. The applicant further avers that the objector and or her children, in particular one Shadrack Langat, have been collecting Kshs. 22,000/- per month from rental premises on L.R. NO. 631/61/V (IR No.30648) without giving the applicant a share. She annexes to her affidavit what she refers to as copies of the rent receipts from the said premises. It is also her deposition that one property of the deceased, a tractor registration mark number KUB 584, as well as 15 head of cattle, were not distributed during the confirmation of the grant.

10. The applicant further seeks a refund of expenses which she contends that she has singlehandedly incurred following execution of various court orders issued in respect of the estate of the deceased.

11. In her submissions dated 11th July 2017, the applicant elaborates on the claims she makes in her application and affidavit in support. She argues that due to the creation of a road of access on Kericho/Silibwet/663, the actual acreage of the land has reduced and it is no longer possible to execute the grant as it is.

12. With respect to the rent collected from L.R. NO. 631/61/V (IR No.30648) she submits that the total rent collected is Kshs 2,222,000 and her family is therefore entitled to half, being Kshs 1,111,000.

13. It is her submission that the respondent transferred to herself shares in KTDA without a grant having been issued in respect thereof. She relies in support on a letter from the factory manager, Kapkoros factory, dated 28th March 2013.

14. With regard to the amount she spent on implementation of the court orders, she submits that she spent Kshs 56,000 and she therefore claims a refund of Kshs 28,000

15. The respondent objector filed an affidavit in response dated 4th July 2016 in opposition to the present application. She avers that the issues raised in the application before court were settled and the grant rectified and confirmed on 31st July 2014, and the present application is therefore res judicata. She avers that the acreage of the deceased’s land, L.R.No.Kericho/Silibwet/663, was asertained by the court and an order made for the rectification of the grant.

16. With respect to the claim for a share of rent, the respondent avers that the income was used for the benefit of the beneficiaries of the deceased prior to the confirmation of grant. Thereafter, the applicant has been in occupation of the property. She denies that any part of the land of the deceased had been sold to any party, or that there was a tractor among the assets of the deceased. It is her contention that the grant in this matter was confirmed in 2009, but has since been the subject of frivolous applications which have delayed the finalisation of the succession proceedings. There were no submissions on record for the respondent, though a list of authorities was filed on 31st August 2017.

17. As I understand it, in her application dated 28th June 2016, the applicant has about six issues which she wishes addressed by the court. The first relates to the actual acreage of the estate of the deceased following the excision of a road of access; the second relates to rental income from a property of the deceased; the third relates to certain properties which she alleges had not been distributed; the fourth to a portion of the property of the deceased which had been sold and should have been taken into account at the distribution; the fifth the alleged unlawful transfer of shares to herself by the respondent, and finally, a claim for refund of a portion of monies she alleges she utilised in implementation of the orders of the court.

18. In considering these issues, I go back to the record of the court and the various rulings made by my predecessors on the bench in this station in respect of the estate of the deceased.

19. The first is the ruling dated 31st July 2014 by Sergon J. In that ruling, the court considered the acreage of the deceased’s land and the issue concerning the access road which is raised in the present application. The ruling followed a consent order between the parties dated 31st March 2014. Pursuant to that ruling, the court had directed the District Surveyor to visit the deceased’s land, L.R.No.Kericho/Silibwet/663, and establish three things: the actual acreage of the parcel, the acreage of the area covered by tea bushes, and to propose a road of access.

20. The District Surveyor had done as directed and had compiled a report which was filed in court and availed to parties and their Counsel for their submissions. After considering the submissions of the parties, the court stated as follows:

“It has however emerged that the actual acreage of the land on the ground is 22. 75 acres while the certificate of confirmed grant gave the acreage as 23. 23 meaning there is a shortfall of 0. 48 acres. There is also another revelation shown in the surveyor’s report which is to the effect that the area covered by tea bushes measures 4. 5 acres while the certificate of confirmed grant gives a figure of 6 acres.”

21. With regard to what should be done as a result of the discrepancy in the actual area of the deceased’s land and the area covered by tea vis a viswhat was set out in the certificate of confirmation of grant, the court took the following view:

“I am persuaded by the submission of Mr. Ochieng that the certificate of confirmed grant should be rectified so that the actual acreage given by the surveyor can be redistributed in the ratio used in the certificate of confirmed grant dated 19th October 2009 which I so order.”

22. With respect to the access road, the court stated as follows:

“The other issue which the parties seem not to agree is the proposed access road…I have carefully re-examined the surveyor’s proposed on the access road and it is clear that it will cause a little discomfort to the parties, particularly the objector. It must be appreciated that the changes arising from the process will obviously affect all parties in one way or the other. I am satisfied that the surveyor’s proposal is fair and the most convenient for all parties to this dispute. This court adopts the proposal by the Bomet District Surveyor on the creation of a road access.”(Emphasis added)

23. I have considered the issues raised in the present application against the orders made by Sergon J in his ruling of 31st July 2014. He addressed himself, in the said ruling, to the issue of the actual acreage of the deceased’s property, L.R.No.Kericho/Silibwet/663. The court had sent the District Surveyor, Bomet, to the land, and a report had been made which had indicated what the actual acreage of the land is, as well as the area occupied by tea. The court had also addressed itself to the issue of the road of access, and had accepted the recommendation of the District Surveyor. Further, the court had addressed itself to the manner in which the changes with respect to the actual acreage of the land and the area covered by tea would be dealt with in the grant.

24. It seems to me that in the application dated 28th June 2016, the applicant mainly seeks exactly what the court had addressed itself to in the ruling of 31st July 2014. The application is said to be an application for review of the said ruling, but the rules with regard to review of judgments and rulings provided for under Order 45 are very clear:

(1) Any person considering himself aggrieved—

(a) by a decree or order from which an appeal is allowed, but from which no appeal has been preferred; or

(b) by a decree or order from which no appeal is hereby allowed, and who from the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or the order made, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason, desires to obtain a review of the decree or order, may apply for a review of judgment to the court which passed the decree or made the order without unreasonable delay.

(Emphasis added)

25. In this case, with respect to the three issues raised by the applicant, no attempt has been made to show that any of the grounds set out in Order 45 exist. It is, in fact, totally unclear why the applicant raised the issues again, given the clear directions and orders of the court in the ruling of 31st July 2014. In my view, the application, in so far as it relates to the three items- the actual acreage of the land, the area covered by tea and the road of access-has no merit.

26. Which leaves prayers 3, 5 and 6 of the application. Prayer 3 seeks an order that the applicant’s co-administrator, Alice Chepngeno, either by herself or her children, be called upon to account for rent proceeds from the rental premises on L.R. No. 631/61/V (IR No.30648).

27. Prayer 5 asks the court to revoke a transfer of the shares of the deceased in KTDA to the respondent. Finally, at prayer 6, the applicant asks the court to compel the respondent to refund to the applicant a sum of Kshs. 28, 280/- incurred for valuation.

28. I have examined the record of the court with respect to these prayers. I have set out above the respondent’s response to the application, particularly with respect to the claim for a share of the rent. In his judgment dated 19th October 2009, Kimaru J ordered that property number L.R. No. 631/61/V (IR No.30648) was to be inherited by the applicant, Josephine Chebet Ruto. That being the case, the applicant was entitled to the rental income from the said property from the date of confirmation of grant. The respondent avers that prior to the confirmation, the rental income was used for the beneficiaries of the estate of the deceased. After confirmation, the applicant has had quiet possession of the property. This was not controverted by the applicant. In the circumstances, I am not satisfied that this prayer is merited.

29. With respect to the valuation fees, the court notes that the parties were required to each meet their share of the valuation fees. The applicant deposes, and this was not controverted by the respondent, that she bore the cost of valuation by herself. It is my finding therefore that she is entitled to a refund of Kshs. 28, 280/- by the respondent, being the respondent’s share of the valuation fees.

30. Finally, the applicant has prayed that the court revokes the transfer of the deceased’s shares in KTDA to the respondent. I note from the record that the inventory of the assets of the deceased had not included shares in KTDA. Such shares were, therefore, not the subject of the distribution undertaken by Kimaru J in his judgment in this matter. However, I note that the issue of the shares arose in 2013 but was not addressed.

31. The shares of the deceased, which comprise part of his assets for distribution to his beneficiaries, could only properly be transferred in accordance with the provisions of the Law of Succession Act. The parties were therefore under a duty to make an application for inclusion of the shares, the assumption being that their existence was discovered after the grant was confirmed, and distribute them fairly among the beneficiaries of the deceased. Accordingly, I find that the transfer of the shares to the respondent by KTDA was improper. The deceased’s shares in KTDA shall be shared equally between the applicant and the respondent.

32. The applicant alleged that part of the land of the deceased had been sold to a third party, and she prayed that a portion of the land be excised for this third party. I note that the applicant has never raised this issue till now, yet she has been engaged in the proceedings for close to 10 years. In any event, if there is a third party with such a claim, it is not the duty of the applicant to raise it, belatedly, after the confirmation of grant. The third party must know his or her rights, and where and how to seek their protection.

33. The upshot of my findings above is that this application partially succeeds. I therefore grant the following orders:

1. That the transfer of the deceased’s shares in KTDA be and is hereby revoked and the said shares be shared equally between the applicant and the respondent;

2. That the respondent do refund to the applicant her share of the fees amounting to kshs. 28, 280/- incurred for valuation.

34. The grant in this matter confirmed on 19th October 2009 shall be rectified as directed in the ruling of 31st July 2014 and a certificate duly issued.

35. There shall be no order as to costs.

Dated, Delivered and Signed at Kericho this 18th day of May 2018.

MUMBI NGUGI

JUDGE