[2023] KEHC 26322 (KLR)

In re Estate of Kibet Sang (Deceased) (Succession Cause 105 of 2010) [2023] KEHC 26322 (KLR) (11 December 2023) (Ruling)

Neutral citation: [2023] KEHC 26322 (KLR)

Republic of Kenya

In the High Court at Eldoret

Succession Cause 105 of 2010

RN Nyakundi, J

December 11, 2023

Between

Pauline Jepkemboi Kibet

1st Petitioner

Elizabeth Jepchirchir Sang

2nd Petitioner

Julius Kipkemboi Kibet

3rd Petitioner

and

Mary Chepyator Kossom

1st Objector

Grace Kibet

2nd Objector

Rael Kibet

3rd Objector

Rose Sang

4th Objector

Sylvester Kiplagat Kibet

5th Objector

Ruling

1. What is pending before this court is the distribution of the estate pursuant to the conference that was convened to set out the issues for determination on the confirmed certificate of grant. It was agreed that the parties were to file affidavits to highlight any outstanding issues that are not consistent with the certificate of grant. The administrators were directed to facilitate the entry of the surveyor to the estate with the purpose of capturing the location of each of the parties on the estate so as to ensure the distribution does not displace any of the parties. This court also directed that the parties particularise the movable assets as per each house.

2. The county survey office conducted a survey of the estate and filed a report dated 1st August 2023 wherein they laid out the findings of their survey. The findings of the survey were as follows;Kaptagat/Lotonyok Block 5 Ngelel Tarit/33. This parcel has a permanent house belonging to the second wife of the deceased- Pauline Jepkemboi Kibet.

There is also a permanent house belonging to Emmanuel Kemei who is the son to Pauline Jepkemboi Kibet (2ndwife).

There is a temporary house made of iron sheets belonging to Christopher Bett who is a son to Pauline Jepkemboi Kibet ( 2nd wife to the deceased).

Koilel/29 /

This parcel has a semi-permanent house belonging to Salina Jepkorir Birgen.

There is also a temporary house belonging to Nicholas Kemboi son to Salina Jepkorir Kemboi.

There is also a temporary house belonging to Emmanuel K. Kemboi.

Kaptagat/ Kaptagat Block 1 (Losirwa) /116. This parcel has the following houses:

A temporary house belonging to William Kiprotich Bett and Silvester Kibet both of them are sons to the first wife (late Sally Sang)

There is a semi-permanent house and a bore hole belonging to Stephen Kibet, son to the first wife { Late Sally Sang).

There is also a temporary house belonging to sons to William Kiprotich Bett and Stephen Kibet.

The late Kibet Sang and Sally Sang (1st wife) were buried in this parcel of land.

A temporary house belonging to Abraham Kibet who is a son to the first wife (Sally Sang).

This parcel has a cattle Dip constructed by the late Kibet Sang.

A temporary house belonging to Isaac Kipkoech Kibet son to the first wife(Late Sally Sang)

There is a permanent church belonging to ACK ST Andrew Church.

There is a permanent house and kites Primary school belonging to Simon Chebon who bought four acres from the deceased ( Kibet Sang).

There are three permanent houses and one semi-permanent house belonging to purchasers who bought the land from Gene Kipyego Masit (Gene Kipyego Masit bought 2. 5 acres from the late Kibet Sang).

Kipsinende/ Kipsinende Block 8 (Lamaon/ 1) This parcel has a permanent house belonging to Gideon Kositany son to the second wife (Pauline Jepkemboi Kibet).

It also has a store and a toilet built by Abraham Kibet who is the son to the 1st wife.

Kipsinende/ Kipsinende Block 8 (Lamaon] 54

This parcel has the following houses;

A temporary house and a store belonging to Ezekiel Kiprono Sang who is a son to second Wife (Pauline Jepkemboi Kibet).

Two permanent houses which belong to purchasers who bought the land from Henry Kipkosgei Sang who is a brother to Kibet Sang (deceased).

Kipsinende /Kipsinende Block 81 Lamaon/60 This parcel has a temporary house for Stephen Kibet who is a son to the first wife

Plateau/ Plateau East Block 2 /Uasin Gishu)/ 88 This parcel has a permanent house belonging to the third wife (Elizabeth Jepchirchir Sang).

Plateau/Plateau East Block 2 (Uasin Gishu/ 62 This parcel has a permanent house belonging to Robert Kemboi Kibet who is a son to third wife (Elizabeth Jepchirchir Sang).

Plateau/Plateau East Block 2 (Uasin Gishu)/92 This parcel has a temporary house belonging to Francis Kibet Kipngetich who is a son to third wife (Elizabeth Jepchirchir Sang).

Plateau/Plateau East Block 2 (Uasin Gishu)/ 85 This parcel has a permanent house belonging to Julius Kipkemboi Kibet who is a son to the first wife.

Plateau/Plateau East Block 2 (Uasin Gishu)/84. This parcel has a house belonging to Brian Kipleting son to Julius Kipkemboi Kibet.The parties filed an inventory of the movable assets and their proposed modes of distribution.

Petitioner’s submissions 3. Learned counsel for the petitioners filed submissions dated 3rd July 2023, urging that the certificate of confirmation of grant drawn is incapable of transmitting the estate herein for a number of reasons.

4. Counsel submitted that the grant fails to incorporate the partial mediation hence a substantial part of the estate cannot be transmitted using the grant. Counsel highlighted the same in the following terms;Julius Kipkemboi Kibet ( Son of the late Kibet Sang) purchased 1 acre of land on parcel no. Kaptagat/ Kaptagat Block 1 (Losirwa) 116. Further, that he purchased 11. 5 acres worth Kshs. 575,000 between 1993-2005 on trust and gifted 6 acres on parcel no. Plateau /Plateau East Block 2 (UG) 84 (whole) where his two sons Brian Kipleting and Bernard Kipchirchir live. Henry Sang (brother to the late Kibet Sang) was gifted 2 acres at Kipsinende /Kipsinende Block 8 (Lamaon) 54. Salina Birgen (Cousin to the late Kibet Sang) was gifted 7. 0 acres at Kaptagat /Lotonyok Block 2 (Koilel) 29. Gideon Kimurgor Kositany ( son to the late Kibet Sang) was gifted parcel no. Kipsinende /Kipsinende Block 8 (Lamaon) 1 (whole) measuring 17. 8 acres. Julius Kipkemboi Kibet (Son to the late Kibet Sang) is permanently settled on parcel no. Plateau/ Plateau East Block 2 (UG) 85 that shall form his share of inheritance of the family estate.

5. Further, that the grant excludes Immaculate Jerotich, on undisputed dependent, hence disinheriting her contrary to the judgment of the court. Parcel number Kipsinende/Kipsinende Block 8 (Lamaon) 60 has been omitted from the grant, yet it forms part of the estate. The distribution of the estate, it is not equal as envisaged in the judgment and decree of the court, for instance, Sylvester Kibet has allocated himself 18. 9 acres and allocated majority of beneficiaries 15. 25acres. The judgment of the court is actually capable of several permutations and/or combinations in so far as the distribution of the estate is concerned. This is because the Honourable court pronounced itself on the law and formula of distribution but went short of doing the actual distribution.

6. He urged that the only way for the estate to be transmitted is for the court to do the actual distribution and allocate each beneficiary their respective share of the estate. Further, that the grant is also erroneous, because it allocated William Kibet the Plateau farm yet the surveyors report shows that he is occupying and settled on Kaptagat/Kaptagat Block 1 (Losirwa)/116.

2nd Petitioners’ submissions 7. Learned counsel for the petitioner submitted that the deceased placed each widow in their own homestead which formed their matrimonial home. That upon the demise of the deceased, they held several meetings and agreed to share the estate as follows;a.1st Wife 137. 635 Acres.b.2nd Wife 126. 33 Acres.c.3rd Wife 117. 33 Acres.

8. The parties however abandoned this proposed mode of distribution and proceeded to propose different modes of distribution. The 2nd petitioner proposes that in the interest of continuity, the surviving spouses do retain the portion of land in which the Deceased had already established their respective matrimonial homes as part of life interest. That is to say:-a.Household A - Kaptagat/Kaptagat Block 1/Losirwa/1116. b.Household B - Kaptagat/Lotonyok Block 3 (Ngelel) Tarit 33. c.Household C - Plateau /Plateau Block 2 (Uasin Gishu)60, 61. 62. 88. 89, 90. 91 and 92.

9. They proceeded to file their proposed modes of distribution on the immovable properties which the court considered before issuing the certificate of confirmation of grant dated 17th November 2022 which is the crux of this ruling.

10. The 2nd petitioner provided an inventory of the movable assets as follows; Ford Tractor 6600 - KLX 876

Stationery water tank at Naiberi

Trailers - one large flat, one small (blue) and the smallest one (all at Naiberi)

20 It Knapsack sprayer

Peugeot car pickup 404 - KLZ 151

Disc plough Nardi type (Short Frame)

Mould board plough

Light tiller (Red)

Small maize tiller (blue) at Naiberi

Cobalt Harrows - one new model and one old model

Mower

Maize planter - International model

Light harrow

Mobile water engine - Borrowed by Daudi of Strawbag

Tractor drawn chain at Naiberi

BMC lorry Leyland type

Ford Tractor 6600 - KSD 292

Mobile water tank

Trailers - one large body-build, and one small (red) .

20 It Knapsack sprayer

Peugeot car 404 pickup - KLY 710 ‘

Disc plough - Nardi (Long Frame)

Mould board plough

Chisel rake tiller (Yellow)

Small tiller at Kamukunji Home

Cobalt Harrow one old model

Maize Shelter

Tractor mounted grass - cutter

Maize planter - Butch type

Light harrow

Lighting and water drawing engine - Borrowed by Uncle Kimitei Samoei

Mobile Water engine at Lamaon Shamba (Kimurgor's home)

Tractor drawn chain at Kapker home

Ford Tractor 5000 - KQC 180

Mobile water tank at Kamukunji Home

Trailers - one baiter type, and one small (red)

20 It Knapsack sprayer

Bedford lorry

Disc plough - Rumson type

Wheat seeder (new model)

Chisel rake tiller (Yellow)

Light tiller (red)

Small tiller at Kamukunji Home

Tractor drawn CAN spreader

Tractor mounted grass-cutter at Naiberi Home

Maize planter - Butch type

Light harrow

Fixed water drawn engine (Natasha) at Kamukunji Farm

Mobile water engine at Kamukunji Home

Large raised plastic water tank at Kamukunji Farm

Small cylindrical tank at Naiberi

Tiller for potatoes -

Tractors drawn chain borrowed by Lawrence Kebenei

11. Counsel proposed that all the money at Equity Bank Account No. 0300xxxx13211 to be shared equally among the three household.

12. Counsel concluded by submitting that the grant as prepared having left out significant share of the Estate, the most prudent way to deal with it, is to have a review of the orders made by the court on the 28th July, 2022 to include all the subsequent activities that have been undertaken to enable these beneficiaries inherit this Estate and to have a peaceful co-existence as a family.

Objector’s submissions 13. Learned counsel for the objectors filed submissions on the distribution of the estate, urging that from the onset, the certificate of confirmation of grant has no single error of law. The grant has fully adhered and appreciated the provisions of the law of succession like in this instance where the family is polygamous. The court rightly applied Section 40 of the laws of Succession Act Cap 160 and all the beneficiaries of the deceased and the two surviving widows are provided for in the certificate of confirmation of grant.

14. The Objectors, however concede that there are factual errors in the certificate of confirmation of grant and there is need for amendments, These errors relate to Acreage, omission of one beneficiary Immaculate Kibet and some of parcels that were not distributed. The issues raised in the affidavits of Julius, William, Elizabeth Jepchirchir Sang and Emmanuel Kemei are partly factual.

15. In response to the criticisms raised by the other parties, counsel submitted that in relation to Immaculate Kibet, her exclusion in the grant is regrettable and was purely a typing error since the Objectors included her in their Further Further Affidavit which comprised their mode of distribution and the explanations of the objectors is captured in supplementary Affidavit dated 30th January 2023 sworn by Sylvester K1plagat Kibet. The said Immaculate Kibet be provided for as per the prosed mode of distribution.

16. Further, that the proposed mode of distribution captured in the certificate of grant is the proposed product of the Objectors statement on the mode of distribution which has been consistent all through opposed to the Petitioner’s mode of distribution which was a blanket through household and continuously mutated with false statements, concealment of material facts and without fairness to all beneficiaries. The Objectors proposed mode of distribution was adopted by the court in its Judgment and issuance of grant since the Objectors considered the following facts and the law; Personal developments already done by the beneficiaries at the time of distribution.

The area of residence by beneficiaries and proximity of the second portion if any allocated to the individual to avoid too much fragmentation.

Peaceful coexistence after distribution since there was differences among beneficiaries and there was need for beneficiaries to live with those in good terms.

The nature and condition of the land for settlement and agriculture since some portions are swampy and it was fair to allocate each one an arable portion for subsistence.

The complaint about the extra Acreage to Sylvester Kiplagat Kibet came about because he was allocated an extra portion which was set aside as a cemetery for the entire family since this has to be registered in the name of an individual and he is the lastborn son from the 1st house. It is a cultural practice among the Nandi that the last-born son takes care of the homestead and this was agreed upon in family meetings.

17. Sylvester Kiplagat Kibet is the only Administrator who has steadfastly advocated for fairness and equity all through opposed to the other three administrators who utilize land as hereunder; Julius Kibet -Utilizes 33 Acres

Elizabeth Sang -Utilizes 117 Acres

Pauline Sang -Utilizes 126 Acres)

18. The Kongasis Farm was purchased from Arap Kios (late) measuring about 10 Acres is not yet in the name of the late Kibet Sang and it can only be addressed when the pending dispute with the seller, family is resolved and the documents of purchase are traced. This parcel can be distributed thereafter and Administrators be mandated to follow up. Any portion that was purchased by the late Kibet Sang can only be pursued and transferred to the allocated beneficiary directly.

It is only fair that the grant be implemented with reasonable amendments only if there is a compelling reason to amend it as proposed herein and transmission be concluded as required under the law.

19. Counsel submitted that the survey report established that the land available for distribution is 435 Acres while the grant distributed 410 Acres some portions were not captured in the grant because the deceased had sold them to purchasers but transfer was not completed. The objectors wish to point out the following acreages within the stated parcels that were not captured in the certificate of confirmation of grant and pray that the grant be amended and the said acreages in the said parcels be allocated to the administrators for transmission to purchasers upon proof of purchase. The objector pegged this submission on the provisions of Section 93 ofCap160Laws of Kenya.

20. On the purchased land, learned counsel submitted as follows; The Deceased had sold part of Kaptagat/Kaptagat Block l(Losirwa)l 16 to Simeon Chebon 4 Acres, Gean Masit and Jacinta Murgor both 2. 5 Acres

The deceased also gave 0. 7 Acres from the same parcel to ACK Church in exchange of a center plot No.25 in Naiberi trading center.

The deceased sold part of land parcel Lamaon Block 54 measuring 10 Acres to Victor Yator.

The deceased gifted part of land parcel Lamaon Block 54 measuring 2 Acres to Henry Sang

The deceased gifted part of land parcel Koilel Farm (Kapnori)/2 measuring 7 Acres to Salina Birgen.

21. He urged that these parcels be registered in the name of administrators who will vet the purchasers and upon prove of purchase transfer the portions to their name. Henry Sang and Salina Birgen are relatives to the deceased and they were gifted in his lifetime and die whole family has no objection.

22. Having quoted the provisions of law that were applied as far as this matter is concerned, it is evident that none of the parties are prejudiced or left out by the Certificate of Confirmation of Grant as drawn. The Purchasers or parties who were gifted by the deceased will lay their claim upon the Administrators and this will not prejudice any beneficiary.

23. It is the Objector’s case that the any Party dissatisfied ought to appeal the matter and they will have a chance in court to prove their evidence and there is no reason as to why the Certificate of Confirmation of Grant herein should be held in abeyance instead of being used in transmission. Further, that the Certificate of Confirmation of Grant dated 17th July 2022 has no errors of law but of facts which should be corrected and the lives of beneficiaries to move on.

24. The Objectors point of view on the matter herein is merited and their prayer that the Certificate of Confirmation of Grant 17th July 2022 should be upheld subject to minor corrections and the same be implemented as soon as possible. The Objectors humbly pray that this honourable court gives timelines of transmission and a date for mention to render accounts

Analysis & Determination 25. Upon consideration of the submissions, inventories and the survey reports, the following issues are pending for determination;1. Whether the certificate of confirmation of grant contains errors2. Distribution of the estate

Whether the certificate of confirmation of grant contains errors 26. The parties conceded that the certificate of confirmation of grant contained certain errors that could be rectified by the court. Both sides concur that the daughter to the sister of the deceased, immaculate Jerotich was excluded erroneously and should be included in the distribution.

27. Upon consideration of the submissions, affidavits and survey report, it is evident that there were some factual errors in the certificate of confirmation of grant. There are certain properties that were not included, including the movable assets and the properties that were purchased from the deceased or that he gifted to various beneficiaries. The survey revealed that there were properties occupied by the purchasers or those who had been gifted by the deceased. In the premises, I direct that the certificate of confirmation of grant be rectified in the following terms.

28. For the following properties, the individuals herein are to be included as beneficiaries in the grant;Kaptagat/Kaptagat Block 1 (Losirwa) 116a.Simeon Chebon – 4 acresb.Gene Masit – 2. 5 acresc.Jacinta Murgor – 2. 5 acresKipsinende/Kipsinende Block 8 (Lamaon) 54a.Victor Yator – 10 acresb.Henry Sang – 2 acresKaptagat/Lotonyok Block 2 (Koilel) 29a.Salina Jepkorir Birgen – 7 acres

29. The surveyor to visit and excise an equal share of each of the beneficiaries provided for in Plateau/Plateau Block 2 in order to make a provision for Immaculate Jerotich from Plateau/Plateau Block 2 (UG) 60,61,62,84,85,88,89,90,91 & 92.

30. The movable properties be distributed as follows;House A1. Ford Tractor 6600 - KLX 8762. Stationery water tank at Naiberi3. Trailers - one large flat, one small (blue) and the smallest one (all at Naiberi)4. 20 It Knapsack sprayer5. Peugeot car pickup 404 - KLZ 1516. Disc plough Nardi type (Short Frame)7. Mould board plough8. Light tiller (Red)9. Small maize tiller (blue) at Naiberi10. Cobalt Harrows - one new model and one old model11. Mower12. Maize planter - International model13. Light harrow14. Mobile water engine - Borrowed by Daudi of Strawbag15. Tractor drawn chain at Naiberi16. BMC lorry Leyland typeHouse B1. Ford Tractor 6600 - KSD 2922. Mobile water tank3. Trailers - one large body-build, and one small (red) .4. 20 It Knapsack sprayer5. Peugeot car 404 pickup - KLY 710 ‘6. Disc plough - Nardi (Long Frame)7. Mould board plough8. Chisel rake tiller (Yellow)9. Small tiller at Kamukunji Home10. Cobalt Harrow one old model11. Maize Shelter12. Tractor mounted grass - cutter13. Maize planter - Butch type14. Light harrow15. Lighting and water drawing engine - Borrowed by Uncle Kimitei Samoei16. Mobile Water engine at Lamaon Shamba (Kimurgor's home)17. Tractor drawn chain at Kapker homeHouse C1. Ford Tractor 5000 - KQC 1802. Mobile water tank at Kamukunji Home3. Trailers - one baiter type, and one small (red)4. 20 It Knapsack sprayer5. Bedford lorry6. Disc plough - Rumson type7. Wheat seeder (new model)8. Chisel rake tiller (Yellow)9. Light tiller (red)10. Small tiller at Kamukunji Home11. Tractor drawn CAN spreader12. Tractor mounted grass-cutter at Naiberi Home13. Maize planter - Butch type14. Light harrow15. Fixed water drawn engine (Natasha) at Kamukunji Farm16. Mobile water engine at Kamukunji Home17. Large raised plastic water tank at Kamukunji Farm18. Small cylindrical tank at Naiberi19. Tiller for potatoes - to be care tanker but can be utilized by the other two families20. Tractors drawn chain borrowed by Lawrence KebeneiMoney In The Bank

31. All the money at Equity Bank Account No. 0300XXXX13211 to be shared equally among the three household.

32. The administrators shall then file a report accounting for the distribution of the estate within six months to enable the court mark the cause as closed. It is so ordered.

DELIVERED, DATED AND SIGNED AT ELDORET ON THIS 11 TH DAY OF DECEMBER 2023. ................................R. NYAKUNDIJUDGE