[2022] KEHC 13736 (KLR)

In re Estate of Kimagut Arap Ngeno (Deceased) (Succession Cause 259 of 1999) [2022] KEHC 13736 (KLR) (7 October 2022) (Judgment)

Neutral citation: [2022] KEHC 13736 (KLR)

Republic of Kenya

In the High Court at Kericho

Succession Cause 259 of 1999

AN Ongeri, J

October 7, 2022

IN THE MATTER OF THE ESTATE OF THE LATE KIMAGUT ARAP NGENO (DECEASED)

Between

John Cheruiyot Bett (Legal Representative of the late Esther Chepkirui Ngeno)

Petitioner

and

Wilson Kipyegon Langat (Legal Representative of the late Esther Ngeno Chelelgo)

Objector

Judgment

1. The Deceased herein Kimagut Arap Ngenodied intestate on 30/7/1992 leaving behind land parcel No. Kericho/kipchimchim/1 measuring 4. 0 H (hereafter referred to as the suit property)

2. Esther Chepkirui Ngeno (Deceased) who was a wife to the brother of the Deceased one Kibet Arap Ngeno(Deceased) applied for grant of Letters of Administration and the same was issued on 15/10/1999 and the same was confirmed on 27/6/2000.

3. The Objector Esther Ngeno Chelelgo(deceased) filed an Objection to the grant and certificate of Confirmation and the same were revoked, a fresh grant issued to Esther Ngeno Chelelgo And John Cheruiyot Bett.

4. John Cheruiyot Bettreplaced the Petitioner Esther Chepkirui Ngeno(Deceased) who was his mother.

5. The Objector Esther Ngeno Chelelgo (Deceased) was also replaced by Wilson Kipyegon Langatwho is also her son.

6. John Cheruiyot Bettalongside other beneficiaries and/or dependants of the estate of the deceased filed an Affidavit of Protest dated 27/7/2015 against the summons for confirmation dated 18/8/2014.

7. John Cheruiyot Bettavers that he was one of the administrators of the estate and that the co administrator Esther Ngeno Chelelgo secretly applied for confirmation of the grant.

8. John Cheruiyot Bettfurther avers that Esther Ngeno Chelelgo(co-administrator’s) proposed mode of distribution of the estate would deprive other beneficiaries and/or dependants their rightful share of the estate which would render them destitute.

9. John Cheruiyot Bettavers that Esther Ngeno Chelelgo(co-administrator) failed to disclose to the court some material facts, that the deceased did not at any time marry Esther Ngeno Chelelgorather that the said Esther Ngeno Chelelgowas married to one Taplangoiw/o Arap Kaborokalias Kiplasoiin a woman-to-woman marriage under Kipsigis customary law. John Cheruiyot Bettavers that this marriage is yet to be dissolved.

10. John Cheruiyot Bettavers that Esther Ngeno Chelelgocohabited with the deceased Kimagut Ngenoduring the subsistence of the woman-to-woman marriage solely for purposes of siring children for TaplangoI w/o Kaborok.

11. John Cheruiyot Bettavers that Esther Ngeno Chelelgo was desirous of getting two parcels of land from the estate of the deceased yet she had land in her matrimonial home at Machorua Village.

12. John Cheruiyot Bett avers that the deceased died whilst he was a bachelor and that the deceased used to support his siblings and their deceased mother, as such they were the rightful beneficiaries and/or dependants of the estate of the deceased.

13. John Cheruiyot Bettavers that his mother and siblings had lived on land parcel no. Kericho/kipchimchim/1 for a period of more than 40 years and have been in exclusive use and occupation of the said parcel.

14. John Cheruiyot Betttherefore proposed that the house of Esther Chelelgo Ngenobe given 2 acres of land parcel no. Kericho/kipchimchim/1 whereas the remaining 8 acres should be given to the house of Esther Chepkurui Ngeno.

15. The said Protest was heard by viva voce evidence. The initial Objector’s evidence was heard first in the Protest.

16. The Objector’s evidence was that Esther Ngeno Chelelgo (Deceased) was married to the deceased herein Kimagut Arap Ngenoand they had 9 children.

17. Wilson Kipyegon Langat (ow.1) who replaced Esther Chelelgo Ngeno(Deceased), the objector, said in his testimony that the Deceased herein Kimagut Arap Ngeno was his father and his mother was the Objector Esther Ngeno Chelelgo(Deceased) whom he replaced.

18. Ow.1 Wilson Kipyegon Langatstated that Esther Ngeno Chelelgohad died intestate and that at the time of her demise she had filed an objection in this suit that was yet to be heard and determined.

19. Ow.1 Wilson Kipyegon Langatthe legal representative of the estate of Esther Ngeno Chelelgostated that he would pursue the objection proceedings to its logical conclusion and that the other beneficiaries and/or dependants consented to have him appointed as administrator of the estate.

20. In Cross-Examination, OW.1 said two of his siblings stay at Machorwa and he does not know why they were taken there.

21. OW.1 who is now 56 years old said he has stayed on the suit property since he was born.

22. OW.2 Wilson Cheruiyot Ronoused to work as an Extension Officer with the Ministry of Agriculture.

23. OW.2 stated that Kibet Arap Ngenothe deceased brother of Kimagut Arap Ngeno(deceased) sold family land, moved to Mau and left his family landless after disposing the entire matrimonial property. Kimagut Arap Ngeno (deceased) accommodated his brother’s children and wife.

24. OW. 2 stated that upon the demise of Kimagut Arap Ngeno, sometime in 1999, the wife and children of Kibet Arap Ngenomoved to court and filed a succession cause claiming that they were the legitimate family of Kimagut Arap Ngeno.

25. OW.2 stated that this was done fraudulently as he knew the wife of the late Kimagut Arap Ngeno As Esther Chelelgo Ngenowho had nine children and not Esther Chepkiruias claimed in succession cause no 259 of 1999.

26. OW.3 Wesley Kipsigei Chumosaid he knew that the deceased herein Kimagut Arap Ngenomarried his late sister Esther Chelelgo Ngenoin 1951 and they stayed together until he died.

27. OW.3 stated that the deceased Kimagut Arap Ngeno, Esther Chelelgo Ngenoand their nine children lived on their matrimonial property Kericho/kipchimchim/1. OW.3 stated that their children live there to date.

28. OW.3 stated that his sister Esther Chelelgo Ngenoinformed him that Kibet Arap Ngenosold his land that was adjacent to theirs and moved to Mau.

29. On Cross-examination, OW.3 said he was aware that a lady called Taplangoiwas claiming a debt from his sister Esther Chelelgo and she was given two of Esther’s children to repay the debt and the matter was settled with the lady who was from Kimaiga Clan.

30. The Petitioner first witnessJohn Cheruiyot Bett (PW.1) said in his testimony that his father was called Kibet Ngeno(deceased) and he was a brother to the deceased herein Kimagut Arap Ngeno.

31. PW.1 stated that he was born at Telanet Location, Kericho/kipchimchim/1, he lives there to date.

32. PW.1 said that the Objector Esther Chelelgo Ngeno(deceased) was a stranger to the estate, she was cohabiting with the late Kimagut Arap Ngeno,however, she was married to someone from Kimaiga Clan under the Kipsigis woman-to-woman Customary Law.

33. PW.1 said the objector Esther Chelelgo Ngeno(deceased) had nine children who lived with them, however, one lived in Machorwa.

34. On cross examination, PW.1 stated that he was born in 1977 and found the objector Esther Chelelgo Ngeno (deceased) at Telanet, she was living with her children.

35. The Petitioner’s 2nd witness Reuben Kiptanui Arap Koech was stepped down due to lapse of memory and the Petitioner called Joel Kipngeno Koech (PW.2) who said that the objector Esther Chelelgo Ngeno was not married to Kimagut Arap Ngeno (the deceased here) but they were cohabiting.

36. He said Esther Chelelgo Ngenowas married to an Old Woman under the Kipsigis Woman to Woman marriage, this marriage was never dissolved, the marriage still subsists.

37. PW. 2 stated that a case was done at the Tribunal and the objector was told to go back to Kimaiga Clan with her children.

38. PW.2 said Kimagut Arap Ngeno(the deceased herein) died as a bachelor and further that the children of Esther Chelelgo Ngeno(deceased) the objector should go to Kimaiga Clan where they belong.

39. On cross examination, PW.2 stated that the objector Esther Chelelgo Ngeno(deceased) and Kimagut Arap Ngeno(deceased) had children.

40. The parties filed written submissions which I have considered.

41. The objector contended that section 29 of the Law of Succession Act was unequivocal on the fact that a spouse and children of the deceased have priority to inherit the estate of a deceased person whether or not they were maintained by him immediately before his death.

42. Furthermore, the Law of Succession Act did not provide inheritance status for sister-in-laws and/or children of the deceased’s brothers and sisters, as such, the petitioner and her children were not beneficiaries and/or dependants of the estate of the deceased by dint of section 29 of the Law of Succession Act.

43. The objector contended that there was evidence that she lived with the deceased since 1951 till his demise in 1992, the objector and the deceased had nine children. Furthermore, upon the death of the deceased, the objector and her children continued residing in LR No. Kericho/kipchimchim/1 till her death.

44. The objector contended that the petitioner did not provide evidence to prove the subsistence of a previous woman to woman marriage to Taplangoi under Kipsigis customary law.

45. The objector reiterated that she cohabited with the deceased from 1951 until his demise in 1992, giving rise to the presumption of marriage and the presumption of marriage could only be rebutted by cogent evidence to the contrary, which evidence was never adduced by the petitioner.

46. The petitioner conceded the she was the wife to the late Kibet Arap Ngenowho was the only brother to the late Kimagut Arap Ngenowhom the instant succession proceedings relates. The petitioner further conceded that she and her children have been living in the suit parcel LR No. Kericho/kipchimchim/1which was registered in the name of the Kimagut Arap Ngenoher brother –in –law.

47. The petitioner contended that she was the rightful beneficiary to the deceased’ estate as Kimagut Arap Ngenonever married and that she and her children were being maintained by the deceased prior to his death and they had been living on the suit premises since she got married to her late husband who was the only brother to the late Kimagut Arap Ngeno.

48. The petitioner contended that the objector was never married and/or cohabited with the deceased herein as her marriage with Taplangoi W/o Kaborokwas still in subsistence and the same was never dissolved to enable her to be remarried.

49. The issues for determination in this case are as follows:-i.Whether the Objector Esther Chelelgo Ngeno’s children are beneficiaries of the Estate of the deceased herein.ii.Whether Esther Chepkirui Ngeno’schildren are beneficiaries of the Estate of the deceased herein.iii.Who pays the costs of this case?

50. On the issue as to whether the children of the Objector Esther Chelelgo Ngeno(deceased) are beneficiaries of the Estate of the deceased herein Kimagut Arap Ngeno, the Objector filed this objection after realizing that the Petitioner Esther Chepkirui Ngenohad filed this Petition stating that she was the sole beneficiary of the Estate of Kimagut Arap Ngeno(deceased).

51. The Objector’s witnesses said the Objector was married to Kimagut Arap Ngeno(deceased) since 1951 until he died and that dowry was paid in 1972.

52. The Petitioner’s witnesses said the deceased herein was a brother to Kibet Arap Ngeno(deceased) who was the husband of the initial Petitioner Esther Chepkirui Ngeno(deceased).

53. I have considered the evidence adduced by the parties and the Affidavits filed herein and I find that there is evidence that the Objector Esther Chelelgo Ngenocohabited with the deceased herein Kimagut Arap Ngenosince 1951 to the time of his demise.

54. There is evidence that the children of the Objector were sired by the deceased herein and they lived with him until his death.

55. I find that the children of the Objector qualify to be dependants of the Estate of the Deceased herein.

56. The Law of Succession Act section 29 defines dependants as follows;“For the purposes of this Part, “dependant” means—a.the wife or wives, or former wife or wives, and the children of the deceased whether or not maintained by the deceased immediately prior to his death;b.such of the deceased’s parents, step-parents, grand-parents, grandchildren, step-children, children whom the deceased had taken into his family as his own, brothers and sisters, and half-brothers and half-sisters, as were being maintained by the deceased immediately prior to his death; andc.where the deceased was a woman, her husband if he was being maintained by her immediately prior to the date of her death.”

57. In Re Of The Estate Of Joshua Orwa Ojodeh – Deceased[2014] eKLR, it was held that “… where a deceased person is survived by spouse and child or children, the other relatives are not entitled to a share in the intestate estate of such person. The spouse and child are entitled to the estate to the exclusion of all the other relatives.”

58. I find that the children who were taken in by the deceased are entitled to inherit as dependants, in this case, the children were not taken by the deceased but they were sired by him.

59. I find that the Law of Succession Act supersedes the Kipsigis customs on this aspect.

60. The Petitioner’s witnesses said the children belong to the Kimaiga Clan. However, according to the Law of Succession Act, they are dependants of the deceased herein regardless of the claim that their mother may have contracted a woman to woman marriage under the Kipsigis Customary Law.

61. I find that the Woman to Woman marriage was not proved to the required standards and even if it was proved, the same cannot extinguish the rights of the objector’s children to inherit as dependants of the deceased on whom they were depending immediately prior to his death.

62. On the issue as to whether the children of Esther Chepkirui Ngenothe initial Petitioner are dependants of the Estate of the deceased herein, I find that the answer is in the negative.

63. The said children including John Cheruiyot Bett who replaced the Petitioner Esther Chepkirui Ngeno (deceased) were not dependants of the Estate.

64. There is no dispute that the husband to the Petitioner Kibet Arap Ngeno(deceased) was a brother to Kimagut Arap Ngeno(the deceased here).

65. I find that the evidence by the Petitioner’s witnesses that the Objector Esther Chelelgo Ngeno was married to an Old Woman under the Kipsigis Woman to Woman Customary Law does not entitle the Petitioner to disinherit her children.

66. The Petitioner Esther Chepkirui Ngeno is not a beneficiary of the Estate of the deceased herein and her children are not therefore entitled to a share of the Estate of the deceased herein Kimagut Arap Ngeno.

67. There is evidence that is not disputed that Kibet Arap Ngeno(deceased) sold his share of the Estate and the children of Esther Chepkirui Ngeno(deceased) cannot now seek to take what belongs to the children of Esther Chelelgo Ngeno(deceased) and Kimagut Arap Ngeno (the deceased herein).

68. I find that the suit property belongs to the children of the Objector Esther Chelelgo Ngeno(deceased) and it should be shared as proposed by Wilson Kipyegon Langat.

69. The Objector Esther Ngeno Chelelgo (Deceased) was replaced by Wilson Kipyegon Langatwho is her son.

70. The grant issued to Esther Ngeno Chelelgo And John Cheruiyot Bettbe and is hereby revoked and the same to be issued to Wilson Kipyegon Langatwho will administer the estate.

71. On the issue of costs, I direct that each party bears its own costs of this case.

DELIVERED, DATED AND SIGNED AT KERICHO THIS 7TH DAY OF OCTOBER, 2022A. N. ONGERIJUDGE