[2022] KEHC 13956 (KLR)

In re Estate of Fredrick Kipmitei Chepkwony alias Fridrick Kipmitei Chepkwony (Deceased) (Succession Cause 210 of 2015) [2022] KEHC 13956 (KLR) (18 October 2022) (Ruling)

Neutral citation: [2022] KEHC 13956 (KLR)

Republic of Kenya

In the High Court at Bomet

Succession Cause 210 of 2015

RL Korir, J

October 18, 2022

IN THE MATTER OF THE ESTATE OF FREDRICK KIPMITEI CHEPKWONY ALIAS FRIDRICK KIPMITEI CHEPKWONY (DECEASED)

Between

Emmanuel Kimutai Korir

Applicant

and

Miriam Chepkwony

Respondent

Ruling

1. The Application dated January 19, 2022 was filed by Emmanuel Kimutai Korir and it sought the following Orders:I.Spent.II.Spent.III.That pending the hearing and determination of this Application, a DNA test be conducted to confirm if Flora Chebet Mitei and Caleb Kipkemoi Korir are children of the late Erick Kipkorir Mitei.IV.That the Grant issued to Miriam Chepkwony dated November 14, 2017 be revoked and a fresh certificate be issued.V.That upon granting prayer IV above, this Honourable court be pleased to cancel any titles that might have been issued with respect to the parcel of land registered as Kericho/Silibwet/1313 with effect from November 14, 2017. VI.That this Honourable Court be pleased to appoint the applicant herein as a co-administrator of the deceased’s estate together with Miriam Chepkwony.VII.That the court be pleased to make any other orders it deems fit in the circumstances.VIII.That costs of this application be provided for.

2. The Application was brought under Order 40 Rule 1,2 and 3 of the Civil Procedure Rules, Sections 1, 1A, 3, 3A and 63(e) of the Civil Procedure Act, Sections 45, 47, 71, 76, 86 and 94 of the Law of Succession Act, Section 18(1) (b) (ii) & (2) of the Civil Procedure Act, Articles 53 & 165 of theConstitution of Kenya 2010, Rules 44(1), 59(6) of the Probate and Administration Rules.

3. It was based on the grounds on the face of the Application and further by the Supporting Affidavit sworn by Emmanuel Kimutai Korir on January 19, 2022.

The applicant’s case. 4. It was the Applicant’s case that he was a beneficiary to the estate of the late Fredrick Kipmitei Chepkwony by virtue of being a grandson. That his father (Erick Kipkorir Mitei) was married to only one wife called Nancy Chepkorir. That Gladys Chepkemoi was not his father’s wife and was not a beneficiary to the estate of the deceased.

5. The Applicant averred that the Respondent concealed material facts during the issuance of the Grant dated November 14, 2017 by excluding him from the list of beneficiaries. The Applicant further averred that the Respondent introduced strangers to the deceased’s estate with the sole aim of disinheriting him.

6. It was his case that Flora Chebet Mitei and Caleb Kipkemoi Mitei were not children of the late Erick Kipkorir Mitei as their birth certificates were obtained way after the death of the deceased.

The respondent’s case. 7. In her Replying Affidavit sworn on February 18, 2022, the Respondent (Miriam Chepkwony) stated that the late Erick Kipkorir Mitei was her son and he was blessed with three children; Emmanuel Kimutai Korir, Flora Chebet Mitei and Caleb Kipkemoi Korir. That the mother of the Applicant herein i.e Nancy Chepkorir Mitei and the mother of the other two children i.e Gladys Chepkemoi were co-wives of her late son.

8. It was the Respondent’s case that when she initiated the succession proceedings, the Applicant herein was a minor of fifteen (15) years old, but she included his mother as a beneficiary to the estate of the deceased. That she also filed a letter from the Assistant Chief which confirmed all the beneficiaries of the estate of the deceased.

9. The Respondent stated that the issue of whether Gladys Chepkemoi and her children were beneficiaries to the estate of the deceased had been dealt with by this court hence making the present application res judiacta. That the Application dated August 5, 2020 by the Applicant’s mother that sought revocation of Grant also dealt with the same issue.

10. It was the Respondent’s case that Section 41 of the Law of Succession Act prevented the Applicant from being a beneficiary to the estate of the deceased as long as his mother was alive. That the Applicant’s mother was given her equal share of 0. 65 acres. It was her further case that the Applicant was not excluded as alleged.

The respondent’s submissions. 11. The Respondent submitted that Erick Kipkorir Mitei died on March 12, 2013 making it impossible to conduct any DNA test. That no application had been made by the Applicant to exhume the remains of the deceased to enable the court grant the prayers sought.

12. She submitted that the issue as to whether Gladys Chepkemoi and her children were beneficiaries to the estate of the deceased had already been dealt with by this court and it was clear that the matter was res judicata.

13. The Respondent submitted that since the Applicant’s mother was alive, she was the rightful dependant of the estate of the deceased as she was the daughter in law. That the Applicant was therefore not a dependant. She relied on Section 29 of the Law of Succession Act.

14. It was the Respondent’s submission that Section 41 of the Law of Succession Act stated that a grandchild would take a share belonging to their parents who predeceased intestate. That in this case, the Applicant’s mother was still alive and it was therefore wrong for the Applicant to claim that he did not receive a share of the estate of the deceased. It was the Respondent’s further submission that the Applicant’s mother’s share was also the Applicant’s share.

15. The Respondent submitted that she was the wife to the deceased and a grandmother to the Applicant therefore in order of preference she was entitled to take out the Letters of Administration. That further when the succession proceedings started, the Applicant was fifteen (15) years old. The Respondent relied on Section 66 of the Law of Succession Act.

16. I have perused and considered the proceedings and pleadings in the court file, the Notice of Motion Application dated January 19, 2022, the Replying Affidavit dated February 18, 2022 and the Respondent’s Written Submissions dated July 22, 2022 and they raise three issue for determination:i.Whether the issues raised by the Applicant were res judicata.ii.Whether the Applicant was a beneficiary to the estate of the deceased.iii.Whether an order for DNA test is viable.i.Whether the issues raised by the Applicant were res judicata.

17. The Applicant is seeking revocation of the Grant issued to the Respondent (then Petitioner) on March 29, 2016 and confirmed on November 14, 2017. His grounds for the revocation were that the Respondent had introduced strangers to the deceased’s estate and that the Respondent had concealed a material fact by not including the Applicant as one of the beneficiaries.

18. The strangers that the Applicant referred to were Flora Chebet Mitei and Caleb Kipkemoi Mitei, who were children of Gladys Chepkemoi. The Applicant stated that his father, Erick Kipkemoi Mitei had only one wife who was Nancy Chepkorir and that Gladys Chepkemoi was not married to his father.

19. The issue of Gladys Chepkemoi and Nancy Chepkorir was dealt by this court. In a Ruling dated November 14, 2017, Muya J held that:'(19) In the petitioner’s affidavit in support for summons for confirmation, the names Nancy Chepkorir and Gladys Chepkemoi are included.(20) Their distribution of LR Kericho/Silibwet/1313 is shown to be 0. 15 for each. These are equal portions.(21) I do not find any fault in this mode of distribution. All the other beneficiaries apart from the objector are in agreement.(22) The objector alleges that Gladys should be taken to belong to the league of other concubines belonging to her late husband. The petitioner has not included the alleged other concubines in the succession cause. This fact goes to show that the so called other concubines were not recognized by the family.(23) The allegation that there was distribution of the estate prior to the death of the deceased is not backed by any other evidence to that effect.(24) The objection proceedings have no merit and they are dismissed. Each party to bear its own costs'.

20. This court (Muya J) held that they were co-wives and were each entitled to an equal share of the estate of the deceased. This decision has not been challenged and therefore remains valid.

21. Further, Nancy Chepkorir Mitei who is the present Applicant’s mother had filed an Application dated August 5, 2020 seeking to revoke the same Grant. One of her grounds was that the Respondent Miriam Chepkwony had fraudulently introduced Gladys Chepkemoi as a beneficiary to the estate with the intention of disinheriting her as the legal wife of Miriam Chepkwony’s late son. In my Ruling dated December 15, 2021, I held:-(39) 'It is apparent from the present application that the Applicant was still aggrieved by the decision of the court to treat Gladys Chepkemoi as her (Applicant’s) co-wife entitled to an equal share of her late husband’s share as proposed by the Petitioner. The court approached this issue from the perspective of whether or not Gladys Chepkemoi and her children were beneficiaries and found in the affirmative. There was no enquiry as to whether or not the said Gladys was a wife as desired by the Applicant. None the less the Ruling dated November 14, 2017 is unchallenged. No appeal or review has been filed against it and the said Ruling remains in force to date.(40) It is my finding that the issues raised by the Applicant in the Application dated August 5, 2020 were dealt with by Muya J in his Ruling dated November 14, 2017. The Applicant’s attempt to seek a fresh determination on issues that had already been dealt with by a court of concurrent jurisdiction is an attempt to have a bite of the cherry twice. Clearly the Applicant can only ventilate any dissatisfaction with the ruling in the court of appeal.'

22. Section 7 of the Civil Procedure Act states that:'No court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such court'.

23. It is clear that the issue regarding Gladys Chepkemoi and her two children has been substantively dealt by this court and there are two Rulings to that effect. The said Rulings have not been reviewed or appealed against. The present Application in my view was an attempt to have a bite of the cherry not twice, but thrice and this borders on abuse of the court process. The recourse open to the parties aggrieved by the decision of this court is the Court of Appeal. It is clear to this court that the real issue was the unresolved issue of whether Gladys Chepkemoi was a wife to the heir of the estate and therefore entitled to a share of the deceased’s estate through the deceased’s son namely Erick Kipkorir Mitei. The present Application to establish the paternity of the two children was a roundabout way of resettling the issue whether or not their mother Gladys Chepkemoi was a beneficiary of the estate.

ii. Whether the Applicant was a beneficiary to the estate of the deceased. 24. It was not in dispute that the Applicant was a grandson to the deceased. The Applicant claimed that he was left out of the list of beneficiaries and that amounted to a material concealment of fact.

25. I am persuaded by the holding of Matheka J in the case ofRe Estate of Florence Mukami Kinyua (Deceased)(2018) eKLR, where she stated that:-'A grandchild is a direct heir to the estate of the grandparent where the parent predeceased the grandparent. The grandchildren get into the shoes of their deceased parents and take the parent’s share in the estate of the grandparents.'

26. InRe Estate of Wahome Njoki Wakagoto (2013) eKLR Musyoka J held:-'Under Part V, grandchildren have not right to inherit their grandparents who die intestate after July 1, 1981. The argument is that such grandchildren should inherit from their own parents. This means that the grandchildren can only inherit their grandparents’ indirectly through their own parents, the children of the deceased. The children inherit first and thereafter grandchildren inherit from the children. The only time grandchildren inherit directly from their grandparents is when the grandchildren’s own parents are dead. The grandchildren step into the shoes of their parents and take directly the share that ought to have gone to the said parents.'(See also cleopa Amutala Namayi vs Judith Were (2015) eKLR)

27. Though the Applicant falls into the category of dependants as stipulated in Section 29 of the Law of Succession Act, he will only be entitled to a share of the deceased’s estate if his parents predecease the deceased. In the case of Obiero vs Ooko (Civil Appeal E028 of 2021) [2022] KEHC 375 (KLR), Aburili J held that:-'Further, Section 29 of the Law of Succession provides the list of persons who qualify to be dependents. In Re Estate of James Kiani Kiranga (Deceased) [2020] eKLR, the court held that the deceased’s grandchildren ought to be in priority to the deceased’s daughter in-law. It follows that grandchildren are entitled to share equally the portion which their parent would have received.'

28. In this case, It was not in dispute that the Applicant’s father was deceased and it was also not in dispute that his mother, Nancy Chepkorir Mitei got a share of the deceased’s estate by virtue of being the daughter in law of the deceased or wife of the deceased’s son who is now also deceased. In law Nancy Chepkorir Mitei enjoys a life interest in the estate of her deceased husband as the inheritance must pass on to the Applicant and his siblings at a later date.

29. It is my finding therefore that there was no concealment of the fact by the Respondent. The Applicant was a beneficiary to the estate of the deceased through his mother, Nancy Chepkorir Mitei.

30. Section 66 of the Law of Succession Act lists a preference of people who are allowed to take out Letters of Administration:'When a deceased has died intestate, the court shall, save as otherwise expressly provided, have a final discretion as to the person or persons to whom a grant of letters of administration shall, in the best interests of all concerned, be made, but shall, without prejudice to that discretion, accept as a general guide the following order of preference -(a)Surviving spouse or spouses, with or without association of other beneficiaries;(b)Other beneficiaries entitled on intestacy, with priority according to their respective beneficial interests as provided by Part V;(c)The Public Trustee; and(d)Creditors:'

31. The Respondent petitioned for the Letters of Administration Intestate of the estate of Fredrick Kipmitei Chepkwony alias Fredrick Kipmitei Chepkwony by virtue of being his widow and/or surviving spouse. It should also be noted that when the succession proceedings were being initiated, the Applicant was fifteen (15) years old and was thus incapable of taking out such Letters of Administration. The Applicant has not shown why he should overtake his mother (who is a daughter in law in the estate) and all his surviving uncles and aunts (who are the immediate beneficiaries) to become an administrator of his deceased grandfather’s estate. This prayer is disallowed.

32. It is my finding therefore that in terms of being added as a co-administrator, the only recourse available to the Applicant would be to file a formal application.

ii. Whether an order for DNA test is viable. 33. The Applicant prayed for an order of DNA tests to be conducted on Flora Chebet Mitei and Caleb Kipkemoi. It was undisputed that the mother of these children was Gladys Chepkemoi. What was disputed was the identity of the father. The Black’s Law Dictionary defines DNA as:-Deoxyribonucleic acid; the double-helix structure in cell nuclei that carries the genetic information of most living organisms.

34. In the case of Re Estate of NKM (Deceased) (2021) eKLR, the court stated:-'DNA which is the short version of Deoxyribonucleic acid, is a genetic material which one inherits from a father or mother. It has been proved that science through DNA can only achieve 99. 9% accurate results in determining paternity.'(See also Hellen Cherono Kimurgor vs Esther Jelegat Kosgei (2003) eKLR)

35. In the case ofEstate of Julius Kiragu Kiara (Deceased) (2018) eKLR, it was held that:'My opinion is that, DNA profiling for purposes of proving parentage may be the best option. The court retains discretion to order such profiling in a suitable case. However, from time immemorial, it is a known fact that the place of the dead is to remain in the grave undisturbed. Once the body has been interred, in my view, a court should be slow to order disinterment of a body unless in clear and desirable circumstances.'

36. The Applicant made two averments in support of his prayer for DNA testing supporting affidavit that these were to the effect that the birth certificates of the two children Flora Chebet Mitei and Caleb Kipkemoi Korir were obtained long after the death of their alleged father Erick Kipkorir Mitei; and that Gladys Chepkemoi was neither married to the Applicant’s father nor had children with her and were therefore not beneficiaries of the Estate.

37. The Applicant’s averments and submissions on this issue clearly show that he was calling for a re determination of the question whether or not Gladys Chepkemoi and her Children were rightly included as beneficiaries. I will say yet again that the recourse open to the Applicants on the redetermination of this issue is the court of appeal. For the Applicant I would consider his prayer for the DNA testing of the two children to be premature. This specific prayer for DNA testing is struck out.

Conclusion 38. In the final analysis, it is my finding that the Application dated January 19, 2022 has no merit and is dismissed.Any party aggrieved by this Ruling and the earlier Rulings dated November 14, 2017 and December 15, 2021 respectively should appeal to the Court of Appeal within 28 days of today.

39. This being a family matter, each party will bear their own costs.Orders accordingly.

RULING DELIVERED, DATED AND SIGNED AT BOMET THIS 18TH DAY OF OCTOBER, 2022. ..........................R. LAGAT-KORIRJUDGERuling delivered in the presence of Mr.Kenduiwo for the Petitioner, Kiprotich (Court Assistant) and in the absence of Mr. Mugumya for the Objector.