[2017] KEHC 197 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT BOMET

SUCCESSION CAUSE NO. 210 OF 2015

IN THE MATTER OF THE ESTATE OF FREDRICK KIPMITEI CHEPKWONY

alias FREDRICK KIMITEI CHEPKWONY...........................DECEASED

-AND-

IN THE MATTER OF MIRIAM CHEPKWONY...............PETITIONER

-AND-

IN THE MATTER OF NANCY CHEPKORIRI MITEI.....PROTESTOR

RULING

1. Nancy Mitei is the objector in these proceedings. She filed an affidavit of protest on 5/4/2017 as a beneficiary to the Estate of Fredrick Kipmitei Chepkwony on account of being the wife of his son Erick Mitei (Deceased).

2. She has deponed to the effect that her mother in law is the petitioner in succession cause no. 210 of 2015 and that she filed the succession without the consent of all the members of the family.

3. It is her contention that the deceased Fredrick Kipmitei Chepkwony distributed his estate among the beneficiaries.

4. The petitioner has included other beneficiaries in the grant of letters of administration obtained.

5. It is her submission that the petitioner’s intention is to limit her portion. Further that the petitioner cannot be trusted as she is not honest.

6. It is the objectors case that the petitioner fraudulently included Gladys Chepkemoi as a beneficiary of the estate claiming that she was wife of her late husband Erick Mitei.

7. The objector’s contention is that Gladys Chepkemoi was a mere concubine in the moulde of others of similar ilk, late Jackline, Dorine, Nancy Chepkirui, Mercy Chemutai, late Viola Chepkoech, Viola Chepkorir, Gladys chepkemoi, Vivian Chepkoech and Janet Chelangat amongst others.

8. The petitioner denies filing this succession secretly. She contends that she is aware that her late son cohabited with Gladys Chepkemoi at Silibwet market and they were blessed with two children.

(a) F C 6 ½ years

(b) C K K – 5 years

9. That the two are biological children of her late son Erick Mitei and that they are entitled to a share of the estate of her late husband Fredrick Kipmitei chepkwony.

10. Succession cause No. 210 0f 2015 was filed vide an order of the court through citation cause no 1 of 2015 and the protestor cited the petitioner and her son.

11. The petitioner denies allegations of distribution of the Estate prior to the death of the Deceased.

12. The petitioner submits that her son Erick Mitei was married to two wives. Nancy and Gladys. Nancy has one child, Gladys has two children.

13. It is her intention to distribute her sons portion equally between the two wives. She further states that all the other beneficiaries are in agreement as to the mode of distribution apart from the protestor.

14. Gladys Chepkemoi contention is that she was a wife of Erick Mitei (Deceased).

She has two children with the Deceased (1) F C (2) C.

It is clear that she cohabited with the Deceased from 2009 to 2013. That when her husband fell sick in the year 2013 she took care of him till his demise.

Analysis

15. It is not in dispute that the objector is a wife to the late Erick Mutai. She has produced a marriage certificate. The petitioner does not deny that she is a wife to her late son.

The only issue for determination is whether Gladys Chepkemoi and her children are beneficiaries.

16. The objector does not deny that at the time of the death of her husband they were separated. She explains the separation to have been caused by her husband’s way of life (acquiring many concubines).

17. It is not in dispute that at the time of his death it is Gladys who was taking care of the deceased.

18. The letter by the area chief dated 8/10/2011 bears the names of Nancy Chepkoriri and Gladys as beneficiaries to the estate of Fredrick Kipmitei.

19. In the petitioner’s affidavit in support for summons for confirmation the names of 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. These objection proceedings have no merit and they are dismissed. Each party to bear its own costs.

Ruling delivered dated and signed in open court this 14th day of November 2017 in the present of learned counsel for the petitioner, Mr. Kenduiwa. The objector in person present, Court assistant Mr. Rotich.

M. MUYA

JUDGE

14/11/17

Mr. Kenduiwa – there is an application for confirmation of granted dated 23/1/2017. When we came for confirmation the objector objected. The other beneficiaries appeared on 29/3/2017. Paragraph 5 we have the mode of distribution of the estate of the deceased. We pray that the same be confirmed.

Objector- I ask that I be explained.

Court- Objector to be explained the fact of the ruling.

Court- I am satisfied that the application for confirmation of grant of letters of administration has merit. Same are confirmed as prayed.

Certificate to issue.

M. MUYA

JUDGE

14/11/17