[2023] KEHC 26686 (KLR)

In re Estate of Kipsiele Arap Chumo alias Kipsiele Chumo (Deceased) (Succession Cause 80 of 2014) [2023] KEHC 26686 (KLR) (14 December 2023) (Ruling)

Neutral citation: [2023] KEHC 26686 (KLR)

Republic of Kenya

In the High Court at Kericho

Succession Cause 80 of 2014

JK Sergon, J

December 14, 2023

IN THE MATTER OF THE ESTATE OF THE LATE KIPSIELE ARAP CHUMO ALIAS KIPSIELE CHUMO (DECEASED)

Between

Prisca Chebet Chumo

Petitioner

and

Gilbert Kibet Ngeno

Protestor

Ruling

1. In the instant succession cause there are two applications to be considered by this court these are the amended chamber summons application dated 29th November, 2021 and the affidavit of protest dated 15th September, 2022.

2. The protestor Gilbert Kibet Ngeno filed an affidavit of protest dated 15th September, 2022 and a witness statement of even date against the proposed mode of distribution of the grant amended by the Petitioner on 29th November, 2021.

3. The protestor stated that he is the son of Sarah Chepngeno and that his mother Sarah Chepngeno died on 16th November, 1990, she was a child of Kipsiele Arap Chumo the deceased herein and thus was entitled to a share of the estate.

4. The protestor stated that the proposed mode of distribution is against an acceptable mode of distribution, requiring equal shares among the deceased's children as stipulated by law.

5. The protestor stated that he was aware that the Petitioner had proposed to hold one (1) acre in trust for himself and his brother Dennis Kiplangat Ngeno, however, he lacked the confidence on the ability of the Petitioner to hold any shares in trust for them or to eventually transfer the said land to them.

6. The protestor contended that the shares of his mother should be transferred to them being the children of the deceased.

7. The protestor contended that attempts to process the grant of administration of the estate of his mother had been thwarted by the area chief who had declined to give him the relevant letter.

8. The protestor contended that he did not have anywhere to stay and has never been given any share of the estate herein in form of land or money since the grant has never been confirmed.

9. The protestor was adamant that it was in the interest of justice that the shares that his mother is entitled to be distributed to himself and his brother in equal proportion to what the other children of the deceased are getting.

10. The court directed the parties to file written submissions.

11. The protestor filed submissions contending the distribution of the estate of the deceased stating that other beneficiaries had been given 1. 9 acres each save for Joseph Kibet Siele who had been given 0. 3 acres and Joseph Siele who had been given 1. 73 acres, the estate of Sarah Chepngeno had been given 1 acre and Florence Ngeno one of the lawful beneficiaries had been excluded as per the proposed mode of distribution contained in the amended summons for confirmation of grant dated 29th November, 2021 without sufficient cause.

12. The protestor contended the petitioner’s assertion that prior to confirmation of grant, she sold a portion of the family land to resettle the protestor, the protestor was adamant that there cannot be a valid sale before grant is confirmed. The protestor cited section 82 (b) (ii) of the Law of Succession Act which provides as follows;“no immovable property shall be sold before confirmation of grant ”.The protestor relied on the case of In Re Estate of John Gakunga Njoroge [2015] eKLR whereby Murithi J. held as follows;“For the transactions between the applicants and beneficiaries of the estate of the deceased entered into before the grant of letters of administration to them and before the confirmed grant, the contracts of sale are invalid for offending the provisions of sections 45 and 82 of the Law of Succession Act.”

13. The protestor contested the purported sale and was adamant that in the event that there was any sale before the grant was confirmed, the same is null and void and the petitioner was guilty of intermeddling with the estate of the deceased.

14. The protestor was adamant that there was no logic in holding the share of Sarah Chepngeno in trust yet her surviving children are over eighteen years, therefore their mother’s share could be transferred to them directly. The protestor contends that the petitioner should not be allowed to circumvent section 35 (5) of the Law of Succession Act by making a skewed distribution.

15. The petitioner in her submissions set out the chronology of events in the instant succession cause, she stated that she sought and obtained the grant of letters of administration for the estate of her late husband Kipsiele Arap Chumo the deceased herein who died on 1st October, 1995. Further that at the time of seeking grant of letters of administration all beneficiaries were in agreement on the mode of distribution of the estate and it had been mutually agreed that the petitioner was to dispose 1 acre of the estate property in Kericho/Kipchimchim/121 and proceeds of sale was to be used to resettle the protestor and his brother.

16. The petitioner submitted that vide chamber summons dated 26th January, 2014 sought confirmation of grant of letters of administration intestate that had been issued on 22nd July, 2014.

17. The petitioner submitted that at the time of making the confirmation of grant she had already offered for sale the 1 acre portion and had been paid part of the agreed consideration and a sale agreement executed in the presence of the protestor and both petitioner and protestor used the proceeds of sale to purchase land and building materials.

18. The petitioner submitted that there was an affidavit of protest dated 20th September, 2016 in response to the chamber summons for confirmation of grant, however, the affidavit of protest was subsequently withdrawn all beneficiaries agreed to have the estate distributed in accordance to the initial proposed mode of distribution and all surviving daughters agreed to renounce their rightful inheritance. The petitioner was therefore directed to file an amended chambers summons, she subsequently filed an amended chamber summons dated 29th November, 2021 to which the protestor herein filed an affidavit of protest dated 15th September, 2022 against the distribution of the estate which is subject to this court determination.

19. The petitioner submitted that in her proposed mode of distribution she had listed the protestor and his brother and was seeking to allocate a portion of 1 acre of Kericho/Kipchimchim/121 in light of the mutual agreement.

20. The petitioner contested the fact that the protestor (a grandchild to the deceased) was seeking to be allocated an equal share with other beneficiaries who were sons to the deceased. The petitioner presented a two-fold argument that the protestors right to inherit the estate was not automatic as the deceased died intestate on 1st October, 1995 after the Law of Succession Act came into operation on 1st July, 1981 and that the protester being a grandchild to the deceased had not presented any representation to the estate of the his late mother Sarah Chepngeno Langat who died on 16th November, 1990.

21. The petitioner cited the case of Cleopa Amutala Namayi v Judith Were Migori HCSC No. 457 of 2005 where the court observed that;“Be that as it may, under Part V of the Act, grandchildren have no automatic right to inherit their grandparents who died intestate after 1st July, 1981 when the Act came into operation. The argument behind this position is that such grandchildren should inherit from their own parents.”

22. The petitioner was of the view that the protest dated 15th September, 2019 lacks merit for want of capacity on the part of the protestor to prosecute the protest on behalf of the estate of Sarah Chepngeno Langat and accordingly allow the amended chamber summons application dated 29th September, 2021.

23. I have considered the pleadings and submissions filed by the parties and I find the issues for this court’s determination is whether to uphold the mode of distribution in the amended chamber summons for confirmation of grant and whether the protestor and his brother are directly entitled to a share of the estate of their grandfather the late Kipsiele Arap Chumo.

24. On the first issue on the mode of distribution propounded by the petitioner, I have examined the proposed mode of distribution and the submissions by the petitioner who stated that there was a protest against the initial mode of distribution, however, the protest was subsequently withdrawn after all beneficiaries agreed to have the estate distributed in accordance to the initial proposed mode of distribution and all surviving daughters agreed to renounce their rightful inheritance. The protestors have been living with their grandmother the petitioner herein since the demise of their mother Sarah Chepngeno who was daughter to the deceased herein, she predeceased the late Kipsiele Arap Chumo on 16th November, 1990. I find that in the proposed mode of distribution that there is reasonable provision for the protestor. I therefore find that the mode of distribution in the amended chamber summons is reasonable as it was based on mutual consent of the beneficiaries and further that there were no beneficiaries that were left out contrary to the protestor’s assertions, in any event the surviving daughters of the deceased willingly ceded their share of the estate to their siblings.

25. On the second issue as to whether the protesters are directly entitled to a share of the estate of their grandfather the late Kipsiele Arap Chumo. I find that the answer is in the affirmative, the protestor and his brother are directly entitled to their mother’s share of the estate as they have attained the age of majority. A grandchild will therefore take the share due to his or her deceased parent in the estate under the principle of representation stated in section 41 of the Law of Succession Act. On this issue that Court of Appeal in Christine Wangari Gachigi v Elizabeth Wanjira Evans and 11 Others NKU CA Civil Appeal No. 221 of 2007 [2014]eKLR stated as follows: ““Although Sections 35 and 38 of the Laws of Succession Act is silent on the fate of surviving grandchildren whose parents’ predeceased the deceased, the rate of substitution of a grandchild for his/her parent in all cases of intestate known as the principle of representation is applicable. The law on this is section 41. If a child of the intestate has predeceased the intestate then that child’s issue alive or en ventre sa mere or that date of the intestate’s death will take in equal shares per stirpes contingent on attaining the age of majority. Per stirpes means that the issue of a deceased child of the intestate takes between them the share their parents would have taken had the parent been alive at the intestate’s death.”

26. Consequently, the amended summons for confirmation of grant dated 29th November, 2021 is partially allowed.(a)Kericho/Kipchimchim/121 – measuring approximately 8. 9 Acres be shared as follows:-(i)Dennis Kiplangat & Gilbert Kibet - 1. 0 Acres in equal shares(ii)Esther Chemutai Siele - 1. 9 Aces(ii)Joseph Kibet Siele - 0. 3 Acres(iii)Andrew Kipkoecj Siele - 1. 9 Acres(iv)David Kimutai Siele - 1. 9 Acres(v)Solomon Cheruiyot Siele - 1. 9 Acres(b)Kericho/Kipchimchim/107 measuring 1. 73 Acres be given to Joseph Kibet Siele

27. The protest partially succeeds only with regards to the fact that the protestor and his brother Dennis Kiplangat having attained the age of majority are directly entitled to the share of their deceased mother in the estate of the late Kipsiele Arap Chumo. Each party to meet their own costs.

DELIVERED, SIGNED AND DATED AT KERICHO THIS 14 DAY OF DECEMBER 2023. .............................J.K. SERGONJUDGEIn the presence of:-C/Assistant – RutohKigen for the Estate of Sarah ChepngenoNo Appearance for Petitioner