[2023] KEHC 26268 (KLR)

In re Estate of Ezekiel Kiplelei Barngetuny (Deceased) (Probate & Administration 22 of 2021) [2023] KEHC 26268 (KLR) (7 December 2023) (Ruling)

Neutral citation: [2023] KEHC 26268 (KLR)

Republic of Kenya

In the High Court at Kapsabet

Probate & Administration 22 of 2021

JR Karanja, J

December 7, 2023

In the matter of the Estate of Ezekiel Kiplelei Barngetuny (Deceased)

Ruling

1. The late Ezekiel Kiplelei Barngetuny (Deceased) passed away on the 20th December 2013 at the age of ninety one (91) years. Thereafter, on the 22nd August 2014, a Petition for letters of administration Intestate respecting his estate said to be valued at Kshs. 200 million was filed by Erick Kipkemboi Barngetuny, in his capacity as the surviving son of the deceased and a beneficiary of the estate along with the surviving widow, Roseline Barngetuny together with her four daughters Edna Jeptum Sang, Joyce Jelagat Chumba, Doreen Cherotich Kogo, Ogla Chemeli Misoi and two daughters in law, Vivienne Jepkemboi Saina and Penina Jepkoech Suge.

2. On the 21st October 2014 and 24th October 2014 respectively, the necessary grant of letters of Administration intestate was issued by the court to the Petitioner, Erick Kipkemboi Barngetuny on the undertaking that he would faithfully administer the estate according to the law and render a just and true account thereof whenever required by law to do so until and upto the time of the distribution of the estate among the true beneficiaries of the estate in the manner approved and confirmed by the court.Thus, within a period of six (6) months from that date of issue, the Petitioner /Administrator had an obligation under Section 71 of the Law for Succession Actto apply to the court for confirmation of the grant in order to empower the distribution of the estate.

3. Apparently in this case, the aforementioned provision of the law was not complied with thereby implying failure by the Petitioner/ Administrator to discharge his lawful functions or his failure to arrive at a consensus with all the true beneficiaries of the estate on the manner of distribution of the estate. The record shows that there was a stalement not only in the distribution of the Estate but also the appointment of the Petitioner as the sole administrator of the estate. Therefore, for purposes of unlocking the stalement in an amicable and expeditious manner, the parties opted for an alternative dispute resolution mechanism by way of mediation, a process where the competing parties meet with a duly accredited neutral person who assists them in the negotiation and resolution of their dispute or differences.

4. So, the parties herein gladly went marching into the mediation process which was presided over by the mediator, Aggrey W. Wakoli and arrived at a consensus on the appointment of additional administrators of the estate of the deceased. The mediator settlement agreement was duly executed on 5th April, 2019 and formally filed in court for necessary adoption by the court on or about the 29th September 2019. The court adopted the settlement and ordered that firstly, the letters of administration that were granted to Erick Kipkemboi Barngetuny be amended to include the names of Edna Cheptum Sang, Leo Kipkeny and Ogla Jemeli Barngetuny. Secondly, a new grant be issued in the above names.

5. The clear import of the two orders was to revoke the previous grant issued to the sole Petitioner on the 24th October 2014 and substitute it with a new fresh grant in the names of the erstwhile sole petitioner and the three additional administrators.The administration of the estate of the deceased was henceforth conferred to the four administrators on the undertaking that they would faithfully administer the estate according to the law and render a just and true account thereof whenever required by law to do so upto the time of duly distributing the estate among the true beneficiaries. The next step after the issuance of the orders was to extract the fresh grant in the prescribed form and apply for its confirmation within the prescribed time or any shorter period that may be deemed necessary.

6. The applicable prescribed form for grant of letters of administration intestate is form P & A 41 contained in the first schedule of the Probate and Administration Rules and issued under Rule 25 of the Rules:Rule 25(1) provides that: -“Every grant made and issued through the principal registry or a High Court district registry shall be in one of forms 41 to 52 as appropriate and shall be signed by a judge of the high court and sealed with the seal of that registry.”

7. In this case, the order for issuance of a new or fresh grant in the names of the four administrators was made by the court on 24th September 2019 but to date there is no such grant in the prescribed form. Invariably, there is no such grant issued on 5th April 2019 when the mediation settlement agreement was executed. This therefore means that there is not grant to be revoked as contemplated in the present application vide the summons for annulment/ revocation of grant dated 29th June 2022. The application is thus misconceived and premature and pursuant to Rule 73 of the Probate and Administration Rules is hereby struck out and dismissed together with all that appertains thereto. The parties shall bear their own costs of the application.

8. It is further ordered that a fresh or new grant do issue forthwith in the names of the four administrators being: -i.Erick Kipkemboi Barngetunyii.Edna Cheptum Sangiii.Leo Kipkenyiv.Ogla Jemel/ Barngetuny, who shall take necessary steps to determine the actual estate property available for distribution and the actual true beneficiaries of the estate whether or not included as such in the previous grant, dated 24th October 2014 which now stands revoked. Thereafter the Administrators shall take out the necessary summons for confirmation of the fresh grant within a period of six (6) months from the date of the grant or any shorter period that the parties may deem fit.Otherwise, the matter be fixed for mention four months from this date hereof for status appraisal and/or further orders.

DATED AND DELIVERED THIS 7TH DAY OF DECEMBER, 2023J. R. KARANJAHJUDGE