[2018] KEHC 3690 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KERICHO

SUCCESSION CAUSE NO. 98 OF 1999

IN THE MATTER OF THE ESTATE OF KIPSIONGOK ARAP KOSKE (DECEASED)

KIPRUTO ARAP SIONGOK...............................PLAINTIFF/APPLICANT

VERSUS

JOHNSTONE KIPLANGAT SIONGOK.....DEFENDANT/RESPONDENT

JUDGMENT

1. The parties to this matter, Johnstone Kiplangat Siongok and his brother, Kipruto arap Siongok were, with their sister Naomi Chepkurui Kirui, the only beneficiaries of the estate of Kipsiongok arap Koske. Letters of administration intestate were issued to the two brothers on 7th July 2014 and were confirmed on 11th September 2014. The estate of the deceased comprised two land parcels, Kericho/Kiptere/986 measuring 1. 4 ha and Kericho/Sosiot/404 measuring 3. 4 ha. Naomi Chepkurui Kirui got parcel number Kericho/Kiptere/986 while her two brothers were to inherit Kericho/Sosiot/404. The certificate of confirmation indicates that Johnstone Kiplangat Siongok would get 1. 6 ha out of the said parcel, while his brother, Kipruto Arap Siongok, would inherit 1. 8 ha out of the said parcel. The mode of distribution was consented to by all the parties. So far so good.

2. A problem, however, arose with respect to the distribution of Kericho/Sosiot/404 between the two brothers. It appears that Johnstone Kiplangat Siongok has apportioned to himself the entire portion with access to the road, leaving his brother with the portion that is downhill and with no access to the main road. The applicant therefore filed an originating summons within the succession cause under Order 37 (1) of the Civil Procedure Code and all other enabling provisions of the law. The applicant basically seeks an order that the deceased’s land parcel No.Kericho/Sosiot/404 should be shared equally between him and his brother so that they each get a share of equal value.

3. The applicant deposes in the affidavit and supplementary affidavit in support of his application that the District Surveyor was scheduled to visit the subject land to apportion it but received a threatening letter from the respondent. In the letter dated 8th May 2017 annexed to the affidavit sworn by the applicant, the respondent alleges that the surveyor wants to destroy the houses he and his children are living in. He tells the Land Registrar, to whom the letters is addressed, to stop the District Surveyor or he will fight them if they approach the land. No response was filed by the respondent in reply to the application.

4. In my view, section 38 of the Law of Succession Act presupposes equality, as far as possible, in terms of size and value when the estate of a deceased person is being shared between the children of the deceased. It cannot be equality if one beneficiary takes the entire portion next to the road, leaving his sibling(s) in a hilly portion with no access. In my view, where beneficiaries have agreed on the distribution but not the location of the respective shares, the proper way of dealing with the matter is to get the services of a surveyor. This will ensure that the portion of land that each beneficiaries is entitled to, is demarcated in such a manner as achieves fairness in terms of size and value.

5. As argued by the applicant, equal distribution presupposes equality, as far as possibly in terms of size and value. It cannot be equality if one beneficiary, in this case the respondent, takes the entire portion next to the road, leaving his sibling on the lower portion of the land with no access to the road. As I have stated above, the fair manner that accords with the requirements of section 38 of the Law of Succession Act is to get the services of a surveyor so that the portion of land that each is entitled to is demarcated in such a manner as achieves fairness in terms of size and value.

6. Rule 76 of the Probate and Administration Rules empowers the court to make such orders as are necessary to achieve the ends of justice. In order to achieve this end between the applicant and the respondent, I direct as follows:

1. That the Land Surveyor, Kericho County, do visit the land parcel number Kericho/Sosiot/404 within the next 14 days from the date hereof in the presence of the parties to ascertain and make a report to the court on the most equitable manner of distributing the land between the applicant and the respondent.

2. That the Officer Commanding Station, Sosiot Police Station, do provide security during the exercise.

3. That the report of the Surveyor, Kericho County, be filed in court within 21 days hereof.

4. That the Surveyor’s costs be shared equally between the parties.

5. That this matter be mentioned before this court on a date to taken at the Registry.

Dated Delivered and Signed at Kericho this 3rd day of October 2018

MUMBI NGUGI

JUDGE