[2024] KEHC 3050 (KLR)

In re Estate of Isack Kimaiyo Keter alias Isaac Kimaiyo Keter (Deceased) (Succession Cause 37 of 2019) [2024] KEHC 3050 (KLR) (14 March 2024) (Judgment)

Neutral citation: [2024] KEHC 3050 (KLR)

Republic of Kenya

In the High Court at Kitale

Succession Cause 37 of 2019

AC Mrima, J

March 14, 2024

Between

Elisha Kipngetich Maiyo

1st Applicant

Jacob Kipkurgat maiyo

2nd Applicant

and

Sarah Jepkemboi Maiyo

1st Respondent

Miriam Maiyo

2nd Respondent

Judgment

Introduction: 1. This judgment is in respect of two applications. They are the Summons for Confirmation of a Grant dated 16th November, 2020 and Summons dated 20th July 2020.

2. The Summons for Confirmation of a Grant dated 16th November, 2020 was taken by the Respondents whereas the Summons dated 20th July 2020 was taken by the Applicants.

3. The parties proposed, and the Court concurred, that the applications be heard by way of viva voce evidence and that two main issues be determined. The issues were the validity of the alleged deceased’s Will and the mode of distribution of the estate property.

4. This judgment is, therefore, in respect of the twin issues.

The Summonses: 5. The Summons for Confirmation of a Grant dated 16th November, 2020 sought the following prayers: -1. The Grant of Letters of Administration issued by this Honourable court on 19th day of November, 2019 to Elisha Kipngetich Maiyo and Sarah Jepkemboi Maiyo both of P O Box 1397-30200 Kitale be confirmed and the estate be divided in terms of the annexed mode of distribution.2. The costs of the application be in the cause.

6. The Summons dated 20th July 2020 sought the following reliefs: -1. That this application be certified as urgent for hearing and service thereof be dispensed with in the first instance.2. That the respondents be compelled to attend court at the inter partes herein of this application.3. That pending hearing and determination of this application inter partes this honourable court be pleased to issue an order compelling the 1st respondent to return to the 1st applicant the herd of cattle (10 in number) belonging to the estate of the deceased pending further orders.4. That pending hearing and determination of the succession cause herein, this honourable court be pleased to issue an order allowing the 1st applicant herein to take care of the herd of cattle belonging to the estate of the deceased pending further orders of the court.5. That the respondents be compelled to give account of the 10 herd of cattle they took from the 1st applicant.6. That pending the hearing and determination of this application inter partes, this honourable court be pleased to issue and order compelling the 1st respondent and/or her family, children, agents and servants and/or any other person currently occupying that house belonging to the deceased situated on Land Title Number Kaplamai/Sirende Bloc 2 (Ngonyek)/74 to vacate the said house forthwith pending further orders of this court.7. That this honourable court be pleased to order that the house belonging to the deceased situated on Land Title Number Kaplamai/Sirende Block 2 (Ngonyek)/74 do remain vacant pending further orders of this court.8. That pending the hearing and determination of this application inter partes, this honourable court be pleased to issue an order restraining the respondents either by themselves, their children, servants, agents or any other person from cutting down trees, leasing or in an manner wasting any portion of those lands title numbers Land Title Number Kaplamai/Sirende Block 2 (Ngonyek)/59 measuring 4. 046Ha and/or Land Title Number Kaplamai/Sirende Block 2 (Ngonyek)/74 measuring 10. 24HA belonging to the estate of the deceased, and from selling and/or disposing off any of the cattle and/or any asset belonging to the estate of the deceased, and from generally intermeddling in the estate of the deceased.9. That pending the hearing and determination of this succession cause, this honourable court be pleased to issue an order restraining the respondents either by themselves, their children, servants, agents or any other person from cutting down trees, leasing or in any manner wasting any portion of those lands title numbers Land Title Number Kaplamai/Sirende Block 2 (Ngonyek)/59 measuring 4. 046HA and/or Land Title Number Kaplamai/Sirende Block 2(Ngonyek)/74 measuring 10. 24HA belonging to the estate of the deceased, and from selling and/or disposing off any of the cattle and/or any asset belonging to the estate of the deceased, and from generally intermeddling in the estate of the deceased.10. That the Grant of letters of administration issued herein be revoked.11. That the Grant of letters of administration with will annexed be issued to the applicants as administrators of the estate.12. That this honourable court be pleased to order that the OCS Kachiroba police station be served with this order to ensure compliance.13. That costs be in cause.

7. Since prayer 10 of the Summons dated 20th July, 2020 sought for the revocation of the grant, the Applicants were deemed as the Plaintiffs and the Respondents s as the Defendants in the viva voce hearing.

8. The parties filed Witness Statements and Lists of Documents respectively.

9. On the part of the Plaintiffs, both Applicants testified. Elisha Kipng’etich Maiyo testified as the Plaintiff. He called 5 witnesses. They were Jacob Kipkurgat Maiyo who testified as PW1. PW2 was Samwel Kipkemoi Koskei who was a Village Elder whereas Sarah Wanyama Maridadi testified as PW3. She had known the deceased who owned a plot at the Chabarus Trading Centre where she was a Member of the Plot Allocation Committee. Duncan Kigen was PW4 and Simon Kirwa Chumo testified as PW5.

10. Sarah Jepkemboi Maiyo was the Defendant. She called one witness, Elizabeth Chepkoech Birgen who testified as DW1. Both were some of the daughters of the deceased.

11. All the documents listed in the Lists of Documents were admitted as respective exhibits.

12. At the close of the parties’ cases, comprehensive written submissions with relevant decisions therein were filed, hence, this judgment.

The Plaintiffs’ case: 13. The Plaintiffs’ case was that the deceased executed a Will on how some of his properties were to devolve upon his death. The Plaintiff and PW1 so alleged. PW2 and PW3 were the witnesses to the Will.

14. PW2 and PW3 narrated how the deceased approached them and proceeded to the house of PW3 where the deceased instructed PW2 to write down his wishes on his two properties. That, PW2 did so in the presence of both the deceased and PW3 and thereafter read out the Will to the two.

15. The deceased was satisfied and appended his signature and thumbprint. The witnesses also countersigned.

16. PW3 corroborated the evidence of PW2. They both affirmed the position that the deceased was quite healthy when he approached them and executed the Will. That, the deceased even drove and walked by himself.

17. Further evidence on how the deceased settled her daughters and some of his grand children was adduced. This Court will deal with the said evidence under the distribution of the estate properties.

18. It also came out that the deceased had set aside 4 acres for himself. Out of that portion, he sold 1. 5 acres to a third party and that everybody was well aware of.

19. The Plaintiffs’, therefore, urged this Court to affirm the Will and to undertake distribution of the estate in terms of the Will. It was also proposed that the portion of 4 acres that was left to the deceased be shared between the daughters and the purchaser.

20. The Plaintiffs filed extensive submissions. Several relevant decisions were referred to in urging this Court to find in their favour.

The Defendants’ case: 21. The daughters of the deceased strenuously opposed the Plaintiffs’ case and proposition on the mode of distribution.

22. It was their case that the deceased suffered stroke in 2018 and was confined to a wheelchair throughout until he died in 2019. According to them, there was no way their father would, in that state, execute the Will.

23. They contended that the deceased was never coherent and suffered immense mental instability such that he could not give instructions and execute the Will as alleged. They further informed the Court that the deceased underwent treatment and that they were in possession of such evidence at home. They also alleged that members of their community and the neighbourhood could confirm as much.

24. The Defendants contended that the Will was not genuine and that it was only executed with a clear intention to disinherit them.

25. The Defendants further challenged the Will on the ground that, even if the Will was properly executed, still it contravened Article 27 of the Constitution in that the deceased discriminated the daughters against the sons in making no allocation to any of them of his properties.

26. They urged this Court to nullify the Will and to proceed to distribute the properties under the relevant provisions of the Law of Succession Act.

27. The Defendants also filed extensive submissions and referred to several decisions in support of their case.

Analysis: 28. The issues for determination in this matter were delineated by the Court at the time of settling the directions. As stated elsewhere before in this judgment, the issues for determination are only two.

29. The issues are as follows: -i.The validity of the Will.ii.The mode of distribution of the estate property.

30. This Court will now deal with the issues in seriatim.

a. The validity of the Will: 31. Before the heart of this issue is dealt with, perhaps it is imperative for this Court to settle an objection which was raised by the Defendants seeking to expunge the Will the record.

32. It was the Defendants’ application that since the original Will document which had been produced as an exhibit in Court was eventually found in the possession of Elisha, the Plaintiff herein, then it ought to be struck off the record as it may have been interfered with.

33. The Plaintiffs’ response to the application was that after the production of the Will as an exhibit, a copy was done for the Court record and the original released to him.

34. It is the position that once exhibits are produced, they become part of the record of the Court and can only be dealt with on the Court’s orders and directions. The Plaintiffs’ response sounds plausible, but since there is no order in the record to support that proposition, it may be possible that the exhibit was irregularly released to him.

35. On a careful reflection of this issue, this Court does not find it worth striking the Will off the record. The reason being that the contents of the Will which was produced in evidence and the copies thereof contained in the applications filed earlier are similar. Therefore, this Court is satisfied that the Will which was produced in Court was not interfered with by the Plaintiffs. The objection is, hence, overruled.

36. The Court will now deal with the main issue. From the parties’ cases, evidence and written submissions, two sub-issues arise for consideration. They are: - Whether the Will contravenes inter alia Section 11 of the Law of Succession Act.

Whether the Will contravenes Article 27 of the Constitution.

Whether the Will contravenes inter alia Section 11 of the Law of Succession Act:

37. Section 11 of the Law of Succession Act states as follows: -11. Written wills:No written will shall be valid unless—(a)the testator has signed or affixed his mark to the will, or it has been signed by some other person in the presence and by the direction of the testator;(b)the signature or mark of the testator, or the signature of the person signing for him, is so placed that it shall appear that it was intended thereby to give effect to the writing as a will;(c)the will is attested by two or more competent witnesses, each of whom must have seen the testator sign or affix his mark to the will, or have seen some other person sign the will, in the presence and by the direction of the testator, or have received from the testator a personal acknowledgement of his signature or mark, or of the signature of that other person; and each of the witnesses must sign the will in the presence of the testator, but it shall not be necessary that more than one witness be present at the same time, and no particular form of attestation shall be necessary.

38. Rebutting the manner in which the Will was executed, the Defendants contended that the deceased herein, who was their father, suffered stroke sometimes in 2018 and was confined into a wheelchair until when he met his death in 2019. As a result of the ailment, the deceased mental faculties were not proper as to execute the Will as alleged by the Plaintiffs.

39. With such a position, the issue of mental fitness arises. It is a factual issue and the rules of evidence must creep in.

40. Matters on evidence are generally governed by the Constitution and the law. Article 159(2)(d) of the Constitution call upon Courts and Tribunals to administer justice without undue regard to procedural technicalities.

41. Speaking of the essence of Article 159(2)(d) of the Constitution, the Supreme Court of Kenya in Law Society of Kenya v. The Centre for Human Rights & Democracy & 12 Others, Petition No. 14 of 2013 held that: -Article 159(2) (d) of the Constitution is not a panacea for all procedural shortfalls.

42. And, in Patricia Cherotich Sawe v Independent Electoral & Boundaries Commission (IEBC) & 4 others [2015] eKLR the Supreme Court further held that: -Not all procedural deficiencies can be remedied by Article 159….

43. Various laws provide for how evidence ought to be received by Courts. For instance, the Evidence Act applies to matters generally relating to evidence. The Evidence Act is clear on its application to succession matters in Section 2 thereof. The provision provides as follows: -1. This Act shall apply to all judicial proceedings in or before any Court other than a Kadhi’s Court, but not to proceedings before an arbitrator.2. Subject to the provisions of any other Act or of any rules of Court, this Act shall apply to affidavits presented to any Court.

44. Sections 107(1), (2) and 109 of the Evidence Act are on the burden of proof. They state as follows:107(1)Whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.2. When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person.and109. Proof of particular factThe burden of proof as to any particular fact lies on the person who wishes the Court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person.

45. The law, therefore, introduces the doctrine of burden of proof. The issue of the burden of proof has two facets. There are the legal burden of proof and the evidential burden of proof.

46. The provisions of Sections 107 and 109 of the Evidence Act, as reproduced above, brings out what is referred to as the legal burden of proof. That burden remains on the party which alleges the issue. In this case, therefore, the legal burden of proof on the issue of whether the deceased was mentally fit to execute the Will, will always be on the Defendants.

47. Reinforcing that the legal burden of proof is on the party that alleges, the Supreme Court in Communications Commission of Kenya & 5 Others v Royal Media Services Limited & 5 Others [2014] eKLR stated as follows: -Although Article 22(1) of the Constitution gives every person the right to initiate proceedings claiming that a fundamental right or freedom has been denied, violated or infringed or threatened, a party invoking this Article has to show the rights said to be infringed, as well as the basis of his or her grievance. This principle emerges clearly from the High Court decision in Anarita Karimi Njeru v Republic, (1979) KLR 154: the necessity of a link between the aggrieved party, the provisions of the Constitution alleged to have been contravened, and the manifestation of contravention or infringement. Such principle plays a positive role, as a foundation of conviction and good faith, in engaging the constitutional process of dispute settlement.

48. There is also the evidential burden of proof. This legal principle was discussed in Bungoma High Court Election Petition No. 2 of 2017 Suleiman Kasuti Murunga v IEBC & 2 Others (2018) eKLR as under: -26. The Petitioner on whom the legal burden of proof lies may or may not adduce sufficient and admissible evidence in proof of any of the allegations in the Petition. On one hand, if no sufficient evidence is adduced to the required standard, then the allegation(s) fail and it all ends there. On the other hand, if evidence is adduced to the satisfaction of the Court that an election ought to be impugned, then it becomes the burden of the Respondent(s) to adduce evidence rebutting the allegations and to demonstrate that the law was complied with and/or that the irregularities did not affect the result of the election. At that point the burden is said to shift to the Respondents. That is the evidential burden of proof.27. The principle of ‘evidential burden of proof’ is hence anchored on the rebuttable presumption of validity of election results. That, until and unless a Petitioner discharges the evidential burden of proof an election is presumed valid. It is on that background that the Court in Singh v Mota Singh & Another (2008) 1 KLR 1stated that an election is a matter of public importance not to be lightly set-aside and in the case of Jeet Mohinder Singh v Harminder Singh Jassi, AIR 2000 SC 258the Supreme Court of India stated that ‘the success of a candidate who has won at an election should not be lightly interfered with…Any person seeking such interference must strictly conform to the requirements of the law….’.28. The Supreme Court in the 2017 majority judgment had the following to say on the evidential burden of proof in paragraphs 132 and 133 thereof as follows: -(132)Though the legal and evidential burden of establishing the facts and contentions which will support a party’s case is static and “remains constant through a trial with the plaintiff, however, “depending on the effectiveness with which he or she discharges this, the evidential burden keeps shifting and its position at any time is determined by answering the question as to who would lose if no further evidence were introduced.(133)It follows therefore that once the Court is satisfied that the petitioner has adduced sufficient evidence to warrant impugning an election, if not controverted, then the evidentiary burden shifts to the respondent, in most cases the electoral body, to adduce evidence rebutting that assertion and demonstrating that there was compliance with the law or, if the ground is one of irregularities, that they did not affect the results of the election. In other words, while the petitioner bears an evidentiary burden to adduce ‘factual’ evidence to prove his/her allegations of breach, then the burden shifts and it behoves the respondent to adduce evidence to prove compliance with the law….29. It therefore follows that the legal burden of proof is static and rests on the Petitioner throughout the trial. It is only the evidential burden of proof which may shift to the Respondents depending on the nature and effect of evidence adduced by a Petitioner.

49. As affirmed in the above case, it is the position that ‘…. the legal burden of proof is static and rests on the Petitioner throughout the trial. It is only the evidential burden of proof which may shift to the Respondents depending on the nature and effect of evidence adduced by a Petitioner.’

50. There is also the standard of proof in this matter.

51. The Black’s Law Dictionary, (9th Edition, 2009) at page 1535 defines ‘the standard of proof’ as[t]he degree or level of proof demanded in a specific case in order for a party to succeed.

52. In many jurisdictions and decisions world over three main categories of the standard of proof emerge. They are the criminal standard of proof of ‘beyond reasonable doubt’, the application of civil case standard of ‘balance of probabilities’ and the application of an intermediate standard of proof.

53. Since this case is civil in nature, the standard of proof is well settled to be proof on balance of probabilities.

54. Returning to the matter at hand, both the legal and evidential burden of proof were initially on the Defendants. Depending on the evidence which the Defendants adduced, the evidential burden may then shift to the Plaintiffs.

56. The foregoing seems to have been captured by the Court of Appeal in In re Estate of Wilfred Koinange Gathiomi (Deceased) [2020] eKLR where the Court in referring to the decision by Githinji, J (as he then was) in In Re Estate of Gatuthu Njuguna (Deceased) (1998) eKLR where the Learned Judge had the following to says: -…… where the objector has proved incapacity before the date of the will, the burden is shifted to the person propounding the will to show that it was made after recovery or during a lucid interval. The same treatise further shows that the issue of testator’s capacity is one of fact which can be proved by medical evidence, oral evidence of the witnesses who knew the testator well or by circumstantial evidence and that the question of capacity is one of degree, the testator’s mind does not have to be perfectly balanced and the question of capacity does not solely depend on scientific or legal definition. It seems that, if the objector produces evidence which raises suspicion of the testator’s capacity at the time of execution of the will which generally disturbs the conscience of the Court as to whether or not the testator had necessary capacity, he had discharged his burden of proof and the burden then shifts to the person settling up the will to satisfy the Court that the testator had the necessary capacity.

57. It was the Defendants’ position that the deceased suffered stroke in 2018 and was never coherent and could not write until his death. They stated that the deceased’s condition was known all over the community and also affirmed that there were medical treatment notes which were at home and that they would readily avail them if required.

58. With such evidence, the evidential burden of proof shifted to the Plaintiffs to prove that the deceased was mentally upright. In discharging that duty, the Plaintiffs called the two witnesses who attested the Will. They were PW2 and PW3.

59. This Court received their evidence. They narrated how each was approached by the deceased and how the Will was eventually penned down. I closely watched the demeanor of the witnesses as they testified and considering the totality of the circumstances under which the Will was executed, this Court finds that PW2 and PW3 were truthful witnesses. The Will was, therefore, signed by the deceased in the presence of PW2 and PW3.

60. With such a state of affairs, the evidential burden of proof reverted back to the Defendants. It was, therefore, incumbent upon the Defendants to tender further evidence on the mentally instability of the deceased at the time of the signing of the Will. That, did not happen.

61. The Defendants did not produce the medical evidence which they alleged was in their possession. Further, no one from the neighbourhood was called to re-affirm the lunacy of the deceased.

62. Buttressing the above, this Court adopts the reasoning of the Court of Appeal in Ndirangu v Ndirangu (Civil Appeal 141 of 2019) [2022] KECA 1296 (KLR) (2 December 2022) (Judgment) where the Court stated as under: -13. We have examined the impugned will dated April 19, 1995 and are satisfied that it meets the requirement of section 11 of the Law of Succession Act. The will contains the name of the deceased, and directly below it, is his signature, which shows that the testator intended to give effect to the will. We further note that the signature on the impugned will is similar to that in the letter dated February 12, 2004 written by the deceased in Kikuyu Language, and addressed to Muhotetu Farmers’ Company Ltd. The signature has been witnessed by two people, namely: Francis Kibui Wachira and Jane Wangui Gateru, who signed below the testator’s allocated section.14. In John Wagura Ikiki & 7 others v Lee Gachigia Muthoga [2019] eKLR, this court adopted the holding of Githinji J (as he then was) in Karanja & anor v Karanja (2002) 2 KLR 22 where the learned judge stated as follows:Where the will is regular on the face of it with an attestation clause and signatures of attesting witnesses and the signature of the testator, there is a rebuttable presumption of due execution (Omnia esse riteatta).

63. This Court, therefore, finds that the Defendants did not prove that the deceased suffered mental or physical incapacity to the extent that he was not able to execute the Will. That objection is hereby dismissed.

Whether the Will contravenes Article 27 of the Constitution: 64. The Defendants are all daughters of the deceased. They contended that the Will did not make any provisions for any of them and that they were discriminated against their brothers. Various decisions were cited to buttress the argument.

65. The Plaintiffs denied as much. They posited that their sisters were married and quite well off. Further, they argued that some of them were settled by the deceased long before their father died.

66. The constitutionality of daughters in respect to succession matters has, by now, been fairly litigated upon.

67. This Court discussed the issue in the High Court at Migori Succession Cause No. 451 of 2014 In the matter of the Estate of Nyacho Ojwando (Deceased) between Thomas Tito Nyachawo and Judith Akinyi Ndege (2016) eKLR.

68. This is what was rendered: -11. In this cause the Petitioner holds that the Protestor, as a daughter to the deceased, is not entitled to inherit the property which comprises of the estate of the deceased on the ground that she is married. But upholding such a position will be tantamount to discrimination of the Protestor which in itself will be contrary to Article 27 of the Constitution which prohibits any form of discrimination based on race, sex, marital status or culture. Indeed Article 27(3) of the Constitution specifically provides that 'women and men have the right to equal treatment, including the right to equal opportunities in political, economic, cultural and social spheres'.12. Section 29(a) of the Act in recognizing 'children' of the deceased as dependants does not classify those children as sons, daughters, married or unmarried. However, that distinction happens to be in the Luo Customary Law on inheritance. To that extent, therefore, the Luo Customary Law on inheritance discriminates between the male and female children of a deceased person and as such it is a retrogressive custom which cannot supersede the Constitution and the law. This Court hence concurs with the holding of Makhandia, J. (as he then was) in In Re Estate of Solomon Ngatia Kariuki (deceased) (2008) eKLR at page 8 where he stated that:The Law of Succession Act does not discriminate between the female and male children or married or unmarried daughters of the deceased person when it comes to the distribution of his estate. All children of the deceased are entitled to stake a claim to the deceased's estate. In seeking to disinherit the protestor under the guise that the protestor was married, her father, brothers and sisters were purportedly invoking a facet of an old Kikuyu Customary Law. Like most other customary laws in this country they are always biased against women and indeed they tend to bar married daughters from inheriting their father's estate. The justification for this rather archaic and primitive customary law demand appears to be that such married daughters should forego their father's inheritance because they are likely to enjoy inheritance of their husband's side of the family.'13. I am in further agreement with Kimaru, J. when His Lordship addressed the alleged justification under the customary laws as to why married daughters ought not to inherit from their parents in the case of Peter Karumbi Keingati & 4 others v Dr. Ann Nyokabi Nguthi & 3 others (2014) eKLR in stating as follows:As regards to the argument by the Applicants that married daughters ought not to inherit their parent's property because to do so would amount to discrimination to the sons on account on the fact that the married daughters would also inherit property from their parent's in-laws, this court takes the view that the argument as advanced is disingenuous. This is because if a married daughter would benefit by inheriting property from her parents, her husband too would benefit from such inheritance. In a similar fashion, sons who are married, would benefit from property that their wives would have inherited from their parents. In the circumstances therefore, there would be no discrimination. In any event, the decision by a daughter or a son to get married has no bearing at all to whether or not such son or daughter is entitled to inherit the property that comprise the estate of their deceased parents. The issues that courts would grapple with during distribution are the issues anticipated by Section 28 of the Law od Succession Act. This court is of the view that the time has come for the ghost of retrogressive customary practices that discriminate against women, which have a tendency of once in a while rearing its ugly head to be forever buried. The ghost has long cast its shadow in our legal system despite of numerous court decisions that have declared such customs to be backward and repugnant to justice and morality. With the promulgation of the Constitution 2010, particularly Article 27 that prohibits discrimination of persons on the basis of their sex, marital status or social status, among others, the time has now come for those discriminative cultural practices against women be buried in history.'I say no more.

69. With the foregoing, this Court finds and hold that the Defendants herein, who are the daughters of the deceased, whether married or not, are also children of the deceased just like their brothers, the Plaintiffs.

70. What the deceased ought to have included in the Will was to either provide for his daughters or to state how they were otherwise catered for. Without either, it only turns out that the daughters were truly discriminated against the sons.

71. With the above finding, this Court is not settling the thorny issue of distribution of the estate, but only asserting the rights of the Defendants to the extent that their rights to inter alia equality and freedom from discrimination as guaranteed under Article 27 of the Constitution was infringed.

72. Therefore, although the Will complied with all the requirements under the Law of Succession Act, it did not, however, pass the constitutional muster for want of compliance with Article 27 of the Constitution. The Will discriminated the daughters against the sons.

73. For that reason, this Court finds and hold that the Will cannot stand and is for rejection.

b. The mode of distribution of the estate property: 74. Having impugned the Will, the estate will now be administered on an intestate basis.

75. This Court received the evidence and proposals by the parties. The issue on grandchildren and some daughters having been settled by the deceased also arose.

76. In consideration of the complexity of the issue of distribution, this Court finds it prudent to, in the first instance, obtain a survey of the deceased’s parcels of land in issue.

77. Once the survey is undertaken and all those in occupation identified, this Court will then settle the mode of distribution in consideration of the diverse issues raised in line with the parties’ positions and the law.

Disposition: 78. Drawing from the foregoing, the following orders do hereby issue: -a.The Deceased’s Will dated 15th September 2018 is hereby revoked.b.Since the Grant of Letters of Administration is currently in the joint names of Elisha Kipng’etich Maiyo and Sarah Jepkemboi Maiyo, the same shall remain in force.c.The parties shall undertake a survey of the parcels of land known as Kaplamai/Sirende Block 2 (Ngonyek) /74 and Kaplamai/Sirende Block 2 (Ngonyek) /59. d.The survey shall confirm the sizes of the two parcels of land and shall also identify all the structures standing thereon and the respective sizes they occupy.e.This matter shall be fixed for further directions on a date to issue.Those are the orders of this Court.

DELIVERED, DATED AND SIGNED AT KITALE THIS 14TH DAY OF MARCH, 2024. A. C. MRIMAJUDGEJudgment virtually delivered in the presence of:Mr. Teti, Learned Counsel for the Applicants.Miss. Lelei, Learned Counsel for the Respondents.Chemosop/Duke – Court Assistants.