[2023] KEHC 3608 (KLR)

In re Estate of Edwin Kiptoo Koech alias Edwin Kiptoo Arap Koech (Deceased) (Succession Cause 59 of 2020) [2023] KEHC 3608 (KLR) (26 April 2023) (Ruling)

Neutral citation: [2023] KEHC 3608 (KLR)

Republic of Kenya

In the High Court at Eldoret

Succession Cause 59 of 2020

RN Nyakundi, J

April 26, 2023

N THE MATTER OF THE ESTATE OF EDWIN KIPTOO KOECH alias EDWIN KIPTOO ARAP KOECH (DECEASED)

Ruling

1. Before me are Summons for Confirmation of Grant dated September 16, 2021 in which the Applicant, Titus Sorobit Kiptoo seeks orders that:1. That the grant of letters of administration intestate granted to Salina Jeptum Keny and Titus Sorobiot Kiptoo on November 19, 2020 be hereby confirmed.2. That costs of this application be provided for.

2. The application is premised on the grounds therein and it is further supported by the affidavit sworn by the Titus Sorobit Kiptoo on September 16, 2021.

The Applicant’s Case 3. The Applicant is one of the administrators of the estate of the late Edwin Kiptoo Koech Alias Edwin Kiptoo Arap Koech who died intestate on January 29, 2012 and the grant of letters of administration intestate was made to him on November 19, 2020. That six months have lapsed since the said grant was issued and that there is no estate duty payable in respect to the estate herein.

4. The Applicant deposed that deceased died intestate and was survived by the following persons:JEbore Koech Widow Deceased

Salina Jeptum Keny Widow Adult

Titus Sorobit Kiptoo Son Adult

Eliud Ngetich Son Adult

Erick Kiprono Too Son Adult

Thomas Koech Son Deceased

Magdaline Jebet Daughter Adult

Rael Jelagat Kiptoo Daughter Adult

Mirriam Jerotich Koech Daughter Adult

Moses Kipkorir Koech Son Adult

Jonah Koech Son Adult

Ruth Jeruto Koech Daughter Adult

Mercy Sorobit Daughter Adult

Naomi Jelimo Daughter Adult

Bethwel Kirwa Son Adult

Jahazel Cheruiyot Son Minor

Noadiah Chebet Daughter In Law Adult

Bethuel Kibet Sorobiot Grandson Adult

Gilbert Kiplagat Grandson Adult

Nancy J Cheptirim Purchaser Adult

Wycliffe Mulikau Angolo Purchaser Adult

Loilo Eruwan Eregae Purchaser Adult

Joel K Kuragt Purchaser Adult

Sammy Kiplimo Melly Purchaser Adult

Isaac Kipkoech Kosgei Purchaser Adult

Edwin Kiplagat Biwott Purchaser Adult

Barnaba Kipkemboi Chumba Purchaser Adult

Samson Kimutai Komen Purchaser Adult

Gilbert Kibirir Kulei Purchaser Adult

Kibet Arap Rop Purchaser Adult

Wilfred Kiptanui Kipngetich Purchaser Adult

Mathew Kipsom Lemlem Purchaser Adult

Nixon Kipkorir Chelimo Purchaser Adult

Benjamin Cheruiyot Purchaser Adult

Caleb Kipchirchir Chepkwony Purchaser Adult

Hosea Kiptanui Maiyo Purchaser Adult

Cornelious Kiptoo Purchaser Adult

Jeol Kiptoo Misoi Purchaser Adult

Daneil Kipkemboi Tanui Purchaser Adult

Kenneth Kipkoech Malakwen Purchaser Adult

Risper Jelagat Tomno Purchaser Adult

Sammy Kipngetich Keter Purchaser Adult

Philip Kipnyango Bitok Purchaser Adult

Isaac Kiptalam Chebet Purchaser Adult

Hellen Jerotich Kimeli Purchaser Adult

Maureen Jeptoo Ng’ososei Purchaser Adult

Dickson Kiprono Kiptaraus Purchaser Adult

Irene Tirop Purchaser Adult

Simeon Some Kebenei Purchaser Adult

Joseph Kiptarus Mutai Purchaser Adult

Philemon Kipkemboi Purchaser Adult

Isaac Chebor Purchaser Adult

Nicholas Kiprotich Bunei Purchaser Adult

Job Chepyegon Purchaser Adult

Julius Kiplangat Yego Purchaser Adult

Joel Kipketer Tenai Purchaser Adult

Lucy Chepkosgei Tanui Purchaser Adult

James Kibet Lagat Purchaser Adult

Samuel Cheruiyot Ruto Purchaser Adult

Isaac Kiprotich Samoei Purchaser Adult

Samwel Kipsang Mutai Purchaser Adult

Emily Jepchirchir Bett Purchaser Adult

Petrolina Jesang Kipchoge Purchaser Adult

Tereza Chepkemoi Sugut Purchaser Adult

Tonny Kimutai Cheruiyot Purchaser Adult

Joseph Kiplimo Meli Purchaser Adult

James Tirop Atwele Purchaser Adult

Lucy Cherop Sambu Purchaser Adult

Mary Jepchumba Kibor Purchaser Adult

Gabriel Mamett Purchaser Adult

Korir Kibiegon Amos Purchaser Adult

John Maitui Onon Purchaser Adult

David Busienei Purchaser Adult

Ezekiel Kipruto Kimosop Purchaser Adult

Ruth Jebet Chelimo Purchaser Adult

Peter Kipchirchir Muati Purchaser Adult

Samuel Kiplagat Koech Purchaser Adult

Sammy Kiprono Chesanga Purchaser Adult

Samuel Kiplagat Arusei Purchaser Adult

Robert Kibet Kigen Purchaser Adult

Langat Henry Purchaser Adult

Christine Jeruiyot Keitany Purchaser Adult

Geoffrey Kipkemoi Mutai Purchaser Adult

Philomen Kimutai Kemboi Purchaser Adult

Silvester Kipchirchir Boit Purchaser Adult

Henry Kiprono Yego Purchaser Adult

Pauline Chepleting Bor Purchaser Adult

Lilian Jepkoech Purchaser Adult

Josphat Sang Purchaser Adult

Eunice Chepkorir Rotch Purchaser Adult

Eliud Kiptoo Koech Purchaser Adult

Haron Kiplagat Kimwal Purchaser Adult

Paul Kipkoech Rop Purchaser Adult

Gilbert Rop Metto Purchaser Adult

Elena Jepchai Kirior Purchaser Adult

David Kiplagat Cheruiyot Purchaser Adult

Paul Kipkemoi Korir Purchaser Adult

Peter Kibet Kiptim Purchaser Adult

Susan Jemtai Korir Purchaser Adult

Robert Kipkemei Purchaser Adult

Isaac Cheruiyot Purchaser Adult

Henry Kiprono Bor Purchaser Adult

David Tarus Chemei Purchaser Adult

Nathan Kibet Mutai Purchaser Adult

Samuel Kipkorir A Koech Purchaser Adult

Enock Kiplagat Tumo Purchaser Adult

Susan Akinyi Akello Purchaser Adult

Allan Kipruto Sigilai Purchaser Adult

Julius Kamaiyo Kibet Purchaser Adult

Wilson Kiprop Lagat Purchaser Adult

John Mwibanda Wesonga Purchaser Adult

Collins Kipkoech Seur Purchaser Adult

John Kiprono A Kirui Purchaser Adult

Carolyne Jerotich Koech Purchaser Adult

Douglas Kipkemboi Purchaser Adult

William Kipyego Sawe Purchaser Adult

Ruth Jepchirchir Kiplagat Purchaser Adult

Julius Kipkalia Yator Purchaser Adult

Julius Kiprotch Bett Purchaser Adult

Denis Kimuati Ronoh Purchaser Adult

Susan Chepchirchir Kirui Purchaser Adult

Rashid Kibiwott Hassan Purchaser Adult

Benjamin Ngengoi Kiprop Purchaser Adult

Sylvia Jelimo Chemjor Purchaser Adult

Henry Kipkesio Rop Purchaser Adult

Chesang Kipkurui Charles Purchaser Adult

Abraham Kipsang Purchaser Adult

Irene Jepkemei Kemboi Purchaser Adult

Bethuel Kiplagat Rugut Purchaser Adult

Rose Jerotich Maina Purchaser Adult

Lena Jepngetich Yego Purchaser Adult

Duncan Kipchirchir Kosgei Purchaser Adult

Joseph Kipchumba Kitur Purchaser Adult

Stanely Kipkosgei Kemboi Purchaser Adult

Jacob Hagai Kipkorir Purchaser Adult

Felister Wanyoike Purchaser Adult

Xavier Murgor Kosgei Purchaser Adult

Bismark Kibet Purchaser Adult

Abraham Barno Purchaser Adult

Stellah Rotich Purchaser Adult

Sharon Chepkorir Kipkalia Purchaser Adult

Julius Kipkoros Mutai Purchaser Adult

Chelangat Joyce Korir Purchaser Adult

Sarah Serem Purchaser Adult

5. The Applicant proposes that estate of the deceased known as LR NO Cheptiret/Cheplaskei BLK 5 (Chemenei) 87 be distributed as follows:No. S Name Share

1 Salina Jeptum KenyTitus Sorobit Kiptoo 5. 42ha Share Equally

2 Titus Sorobit Kiptoo 2. 70ha

3 Nancy J Cheptirim 0. 202ha

4 Wycliffe Mulikau Angolo 0. 728ha

5 Loilo Eruwan Eregae 0. 202ha

6 Joel K Kuragt 1. 618ha

7 Sammy Kiplimo Melly 0. 202ha

8 Isaac Kipkoech Kosgei 0. 445ha

9 Edwin Kiplagat Biwott 0. 404ha

10 Barnaba Kipkemboi Chumba 0. 404ha

11 Samson Kimutai Komen 0. 404ha

12 Gilbert Kibirir Kulei 0. 486ha

13 Kibet Arap Rop 1. 01ha

14 Wilfred Kiptanui Kipngetich 1. 618ha

15 Mathew Kipsom Lemlem 0. 425ha

16 Nixon Kipkorir Chelimo 0. 202ha

17 Benjamin Cheruiyot 0. 404ha

18 Caleb Kipchirchir Chepkwony 0. 142ha

19 Hosea Kiptanui Maiyo 0. 404ha

20 Cornelious Kiptoo 0. 12ha

21 Joel Kiptoo Misoi 0. 202ha

22 Daneil Kipkemboi Tanui 0. 12ha

23 Kenneth Kipkoech Malakwen 0. 283ha

24 Risper Jelagat Tomno 0. 101ha

25 Sammy Kipngetich Keter 0. 81ha

26 Philip Kipnyango Bitok 0. 081ha

27 Isaac Kiptalam Chebet 0. 81ha

28 Hellen Jerotich Kimeli 0. 404ha

29 Maureen Jeptoo Ng’ososei 0. 202ha

30 Dickson Kiprono Kiptaraus 0. 162ha

31 Irene Tirop 1. 618ha

32 Simeon Some Kebenei 1. 21ha

33 Joseph Kiptarus Mutai 0. 890ha

34 Philemon Kipkemboi 0. 202ha

35 Isaiah Chebor 1. 699ha

36 Nicholas Kiprotich Bunei 2. 549ha

37 Job Chepyegon 0. 81ha

38 Julius Kiplangat Yego 0. 850ha

39 Joel Kipketer Tenai 1. 618ha

40 Lucy Chepkosgei Tanui 0. 404ha

41 James Kibet Lagat 0. 121ha

42 Samuel Cheruiyot Ruto 1. 699ha

43 Samuel Cheruiyot Ruto 1. 618ha

44 Isaac Kiprotich Samoei 3. 64ha

45 Samwel Kipsang Mutai 0. 526ha

46 Emily Jepchirchir Bett 0. 81ha

47 Petrolina Jesang Kipchoge 1. 295ha

48 Tereza Chepkemoi Sugut 0. 202ha

49 Tonny Kimutai Cheruiyot 0. 283ha

50 Joseph Kiplimo Meli 1. 618ha

51 Joseph Kiplimo Meli 0. 046ha

52 James Tirop Atwele 0. 485ha

53 Lucy Cherop Sambu 0. 81ha

54 Mary Jepchumba Kibor 1. 295ha

55 Gabriel Mamett 1. 21ha

56 Korir Kibiegon Amos 0. 404ha

57 John Maitui Onon 0. 445ha

58 David Busienei 0. 81ha

59 Ezekiel Kipruto Kimosop 1. 121ha

60 Ezekiel Kipruto Kimosop 1. 21ha

61 Peter Kipchirchir Muati 0. 688ha

62 Samuel Kiplagat Koech 0. 404ha

63 Sammy Kiprono Chesanga 0. 81ha

64 Samuel Kiplagat Arusei 0. 890ha

65 Robert Kibet Kigen 0. 607ha

66 Langat Henry 0. 81ha

67 Christine Jeruiyot Keitany 1. 618ha

68 Geoffrey Kipkemoi Mutai 0. 607ha

69 Philomen Kimutai Kemboi 0. 081ha

70 Silvester Kipchirchir Boit 1. 01ha

71 Henry Kiprono Yego 0. 202ha

72 Pauline Chepleting Bor 0. 202ha

73 Lilian Jepkoech 0. 404ha

74 Josphat Sang 0. 607ha

75 Eunice Chepkorir Rotch 0. 234ha

76 Eliud Kiptoo Koech 1. 01ha

77 Haron Kiplagat Kimwal 0. 607ha

78 Paul Kipkoech Rop 0. 202ha

79 Gilbert Rop Metto 0. 607ha

80 Elena Jepchai Kirior 0. 081ha

81 David Kiplagat Cheruiyot 0. 12ha

82 Paul Kipkemoi Korir 0. 1618ha

83 Peter Kibet Kiptim 0. 607ha

84 Susan Jemtai Korir 0. 404ha

85 Robert Kipkemei 1. 052ha

86 Eunice Chepkorir Rotich 0. 8498ha

87 Isaac Cheruiyot 0. 081ha

88 Moses Kipkorir Koech 1. 65ha

89 Henry Kiprono Bor 0. 202ha

90 David Tarus Chemei 1. 21ha

91 Nathan Kibet Mutai 1. 618ha

92 Samuel Kipkorir A Koech 0. 404ha

93 Enock Kiplagat Tumo 0. 404ha

94 Susan Akinyi Akello 0. 404ha

95 Allan Kipruto Sigilai 0. 12ha

96 Julius Kamaiyo Kibet 0. 526ha

97 Wilson Kiprop Lagat 0. 202ha

98 John Mwibanda Wesonga 2. 873ha

100 Collins Kipkoech Seur 0. 263ha

101 John Kiprono A Kirui 1. 618ha

102 Carolyne Jerotich Koech 0. 607ha

103 Douglas Kipkemboi 0. 32ha

104 William Kipyego Sawe 0. 81ha

105 Ruth Jepchirchir Kiplagat 0. 404ha

106 Julius Kipkalia Yator 0. 404ha

107 Julius Kiprotch Bett 0. 404ha

108 Denis Kimuati Ronoh 0. 38ha

109 Denis Kimuati Ronoh 0. 202ha

110 Denis Kimuati Ronoh 0. 38ha

111 Susan Chepchirchir Kirui 0. 06ha

112 Rashid Kibiwott Hassan 0. 404ha

113 Benjamin Ngengoi Kiprop 1. 618ha

114 Sylvia Jelimo Chemjor 0. 202ha

115 Henry Kipkesio Rop 0. 688ha

116 Henry Kipkesio Rop 2. 02ha

117 Chesang Kipkurui Charles 0. 607ha

118 Abraham Kipsang 0. 081ha

119 Irene Jepkemei Kemboi 0. 607ha

120 Irene Jepkemei Kemboi 0. 607ha

121 Bethuel Kiplagat Rugut 2. 02ha

122 Rose Jerotich Maina 0. 81ha

123 Nathan Kibet Mutai 0. 081ha

124 Jacob Hagai KipkorirFelister Wanyoike 0. 607ha Share Equally

125 Xavier Murgor Kosgei 0. 202ha

126 Bismark Kibet 0. 202ha

127 Abraham Barno 0. 046ha

128 Stellah Rotich 0. 046ha

129 Bethuel Kibet Sorobiot 0. 069ha

130 Sharon Chepkorir Kipkalia 0. 046ha

131 Kibet Arap Rop 1. 21ha

132 Joseph Kiplimo Melly 0. 046ha

133 Ezekiel KiprutoRuth Jebet Chelimo 0. 046haShare Equally

134 Gilbert Rop Metto 0. 046ha

135 Denis Kimutai Ronoh 0. 069ha

136 Henry Kipkesio Rop 0. 046ha

137 Salina Cheptum KenyJohan KoechNoadiah Chebet 0. 069haShare Equally

Julius Kipkoros Mutai 0. 046ha

Chelangat Joyce KorirKorir Kipyegon Amos 0. 404haShare Equally

6. The Applicant further proposes that estate of the deceased known as LR NO Cheptiret/Cheplaskei BLK 2 (Chemenei) 12 be distributed as follows:No. S Name Share

1 Salina Cheptum Keny 4. 04ha

2 Lena Jepngetich Yego 0. 607ha

3 Duncam Kipchirchir Kosgei 0. 404ha

4 Joseph Kipchumba Kitur 0. 404ha

5 Stanley Kipkosgei Kemboi 0. 607ha

6 Johah Koech 2. 55ha

7 Sarah Serem 0. 81ha

The 1st Petitioner’s/ Respondent’s Case 7. The application is opposed by Salina Jeptum Keny, the 1st Petitioner vide her affidavit of protest dated September 23, 2022.

8. The Respondent does not agree with proposed mode of distribution by the Applicant.

9. The Respondent maintains that the deceased herein was married to two wives, herself and one Nelly Chebore Koech (Deceased).

10. The Respondent deposed that she and the deceased solemnized their marriage on November 23, 1991 after the death of his first wife in the year 1990. That the deceased had (10) children with the first wife and (5) children with her.

11. The Respondent further maintains that the deceased herein owned two parcels of land which are the subject of distribution in this cause. Further that at the time of their marriage the she and the deceased resided in the house he had earlier on built which house she and her children continue to occupy to date.

12. The Respondent is aware that the during the lifetime of the deceased he sold portions of land constituting part of the estate.

13. According to the Respondent some of the beneficiaries from the 1st House have since sold portions of the estate of the deceased’s estate after his demise. The Respondent admits to also having sold a portion of the estate so as to enable her meet her children’s basic needs as they all solely depended on the deceased during his lifetime.

14. The Respondent contends that selling land belonging to a deceased person after his demise and before obtaining the grant is null and void ab nitio. The Respondent proposes that the purchasers who bought land from the deceased be deemed as beneficiaries and that the said purchasers do provide the requisite sale agreements as proof of their claims.

15. The Respondent proposes that the purchasers who purchased land after the death of the deceased herein do await the identification of the share of their vendors who will then effect transfers in their favour.

16. The Respondent wants the net residue estate to be identified first before the estate of the deceased can be distributed to the rightful beneficiaries.

17. According to the Respondent there is a likelihood of some of the beneficiaries being disadvantaged as others may have sold more than what would be their legal entitlement hence amounting to a miscarriage of justice.

18. The Respondent wants the estate to be distributed equally between the two houses in line with the provisions of Section 40 of the Law of Succession Act.

Determination 19. I have, considered the law applicable in this matter and all the proposals on the mode of distribution of the estate that have been placed before me.

20. From onset I must mention it is not in dispute that the deceased herein was a polygamous man having married two wives being the 1st Petitioner/Respondent herein and one Nelly Chebore Koech (Deceased).

21. From the facts presented before this Court is not also in dispute that during his lifetime the deceased sold part of the land forming his estate to third parties.

22. By admission both the Applicant and the Respondent have stated that they have intermeddled with estate of the deceased after his demise. That they have both sold part of the land forming the estate to third parties.

23. The Applicant herein wants the estate of the deceased to be distributed as per the above mode of distribution whereas the Respondent wants the estate to be distributed in accordance with the provisions of Section 40 of the Law of Succession Act.

24. While appreciating that part of the land forming the estate of the deceased had be sold. From the Applicant’s proposed mode of distribution am not able to established from the long list of persons listed as purchasers which of the said purchasers are bona fide purchasers and those who are not.

25. Having found so, it is evident from the record that the parties herein do not agree on the mode of distribution that should be adopted by the Court in devolving the deceased’s estate to the respective beneficiaries.

26. The law that guides this Court in such matters is Section 40 of the Law of Succession Act which primarily provides as follows;(1)'Where an intestate has married more than once under any system of law permitting polygamy, his personal and household effects and the residue of the net intestate estate, shall, in the first instance, be divided among the houses according to the number of children in each house, but also adding any wife surviving him as an additional unit to the number of children.(2)The distribution of the personal and household effects and the residue of the net interest within each house shall then be in accordance with the rules set out in sections 35 to 38'

27. The Court in Re Estate Of John Musambayi Katumanga – Deceased [2014] eKLR held as follows:'The spirit of Part V, especially Sections 35, 38 and 40, is equal distribution, of the intestate estate amongst the children of the deceased. There have been debates on whether the distribution should be equal or equitable. My reading of these provisions is that they envisage equal distribution for the word used in Sections 35(5) and 38 is ‘equally’ as opposed to ‘equitably’. This is the plain language of the provisions. The provisions are in mandatory terms – the property 'shall be equally divided among the surviving children.' Equal distribution is envisaged regardless of the ages, gender and financial status of the children.'

28. Further, In the Matter of the Estate of Nelson Kimotho Mbiti (Deceased) HCSC NO 169 of 2000, Koome J, directed that the estate of a polygamist be divided in accordance with the provisions of Section 40 of the Act. The estate was divided into units according to the number of children in each house with the widows being added as additional units. The same reasoning was also applied by Judge Ali Roni in the Estate of Ainea Masinde Walubengo (Deceased) (2017) eKLR stating that 'I am of the view that Section 40 of the Law of Succession Act will apply to the circumstances of this Case. Meaning that the Court will distribute the estate of the deceased according to each house taking into account the number of children in each unit including the surviving widow.'

29. At this juncture it worth pointing out that Article 27 of the Constitution 2010 provides that every person is equal in the eyes of the law and before the law; and the Article goes further to state that there should be no discrimination on any ground including gender which encompasses marital status; theConstitution does not allow discriminatory rules and customs in matters of personal law, including inheritance.

30. There ought to be no classification into categories of male, female, married or unmarried; there ought to be no discrimination against the male or female children of a deceased person; nor discrimination between the married daughters and unmarried daughters of a deceased person.

31. Accordingly, as the parties were unable to agree on the distribution, I direct that the estate of the deceased be distributed as follows: -a.That LR NO Cheptiret/Cheplaskei BLK 5 (Chemenei) 87 be distributed to the 1st House and 2nd House and be shared equally to the beneficiaries. Where a beneficiary is dead their respective share to be translated to a nominee in their estate.b.That LR NO Cheptiret/Cheplaskei BLK 2 (Chemenei) 12 be distributed to the 1st House and 2nd House and be shared equally to the beneficiaries. Where a beneficiary is dead their respective share to be translated to a nominee in their estate.c.The County Surveyor, Uasin Gishu County to conduct a survey for purposes of distributing parcels of land known as LR NO Cheptiret/Cheplaskei BLK 5 (Chemenei) 87 and LR NO Cheptiret/Cheplaskei BLK 2 (Chemenei) 12 respectively to the bona fide purchasers who meet the criteria in Section 93 of the Law of Succession Act.d.Costs of the survey to be borne by the estate.e.The grant of letters of administration granted to Salina Jeptum Keny And Titus Sorobit Kiptoo on November 19, 2020 be and is hereby confirmed. The Administrators do provide an addendum particularizing the number of beneficiaries in each unit.f.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 AND DELIVERED AT ELDORET THIS 26TH DAY OF APRIL, 2023. …………………………………..R.NYAKUNDIJUDGE