[2025] KEHC 2522 (KLR)

In re Estate of Kipsoi arap Mosonik (Deceased) (Succession Cause 303 of 2015) [2025] KEHC 2522 (KLR) (27 February 2025) (Judgment)

Neutral citation: [2025] KEHC 2522 (KLR)

Republic of Kenya

In the High Court at Kericho

Succession Cause 303 of 2015

JK Sergon, J

February 27, 2025

IN THE MATTER OF THE ESTATE OF KIPSOI ARAP MOSONIK (DECEASED)

Between

Reuben Malakwen Soi

Protestor

and

Esther Cherono Mosonik

1st Petitioner

John Simotwo

2nd Petitioner

Judgment

1. The 2nd Petitioner/Respondent filed summons for the confirmation of grant dated 20th April, 2016 seeking to have the grant of letters of administration intestate made to Esther Cherono Mosonik and John Simotwo on 7th October, 2015 confirmed.

2. The 2nd Petitioner/Respondent filed an affidavit in support of the summons for confirmation of grant in which he avers that all beneficiaries of the estate had been ascertained and their shares to the estate of the deceased ascertained and determined as follows;(a)Kericho/Chesinende/35 measuring 8 acres be divided as follows;Esther Cherono Mosonik - 1 ½ acreReuben Soi - 2 acresJeniffer Chemutai - 1 ½ acreJohn Simotwo - 1 acrePaul Langat - ½ acreRobert Langat - ½ acreBernard Langat - ½ acreFancy Chepkemoi - ½ acre

3. The Protestor in response filed an affidavit of protest against confirmation of the grant dated 19th September, 2016.

4. The Protestor avers that the 2nd Petitioner/Respondent fraudulently obtained a grant of letters of administration without his mother’s knowledge or consent of one Esther Cherono Mosonik, the 1st Petitioner/Respondent herein a surviving widow who filed an affidavit confirming that she never petitioned for a grant of letters of administration in the instant succession cause and that the petitioner herein is a stranger to the estate.

5. The Protestor avers that the deceased died on the 4th day of March, 1991 and not the 7th day of March, 1988 as alleged in the petition for the grant of letters of administration intestate.

6. The Protestor avers that he is the only surviving son of the deceased and has three sisters namely Christine Chebo, Caroline Chepkemoi and Jeniffer Chemutai. The Protestor avers that the 2nd Petitioner/Respondent is his cousin and not his brother as alleged.

7. The Protestor avers that John Simotwo the 2nd Petitioner/Respondent did not consult any member of the family before instituting the instant succession proceedings and/or obtaining the letters of administration in respect to the estate of the deceased.

8. The Protestor avers that the 2nd Petitioner/Respondent has included his own children as beneficiaries of the estate of the deceased yet the said children are not dependents of the deceased as defined in the Law of Succession Act.

9. The Protestor avers that the 2nd Petitioner/Respondent and Co-administrator of the estate is not a dependant of the estate of the deceased under section 29 of the Law of Succession Act.

10. The Protestor avers that he should have been one of the administrators of his late father’s estate.

11. The Protestor avers that the 2nd Petitioner/Respondent has colluded with the Area Chief, one John Koske to defraud his late father’s estate by purporting to subdivide his late father’s land.

12. The Protestor avers that the 2nd Petitioner/Respondent concealed material facts from this Court and that the same is a strong and cogent case for a protest against the confirmation of grant.

13. The Court directed that the protest be canvassed by means of viva voce evidence. The Protestor availed four (4) witnesses in support of his case.

14. Esther Mosonik (Pw. 1) stated that she executed an affidavit dated 28th November, 2016 and wished to have it adopted as her evidence in chief. In the said affidavit, she stated that she is the second wife of the deceased and her co-wife was Rosa Tabutany Mosonik (now deceased). She stated that prior to his demise, the deceased distributed his property between the two houses and that her co - wife and her children were settled at Mumbo Farm in Songhor whereas she at her children were settled at Chepseon at Plot No. 35 now known as Kericho/Chesinende/35. She stated that John Simotwo, the 2nd Petitioner/Respondent is not her son, he is her nephew and the son of Sesat Mosonik (now deceased). On cross examination, Pw. 1 stated that she did not know John Simotwo.

15. Charles Kiprono Soi (Pw. 2) stated that he executed an affidavit dated 28th November, 2016 and wished to have it adopted as his evidence in chief. In the said affidavit, he stated that his father, the deceased herein, had two brothers namely Sesat Mosonik (deceased) and Samwel Kiplangat Mosonik. He stated that John Simotwo is the son of Sesat Mosonik (deceased) and therefore his cousin. He stated that the deceased had two wives namely Rosa Tabutany Mosonik (deceased) and Esther Cherono. On cross examination, Pw. 2 confirmed that he knew John Simotwo. On re-examination, Pw. 2 confirmed that John Simotwo is his cousin and that the deceased did not live with John Simotwo prior to his demise.

16. Charles Kiprono Soi (Pw.3) stated that he executed an affidavit dated 28th November, 2016 and wished to have it adopted as his evidence in chief. In the said affidavit, he stated that his late sister Rosa Tabutany Mosonik was married to the deceased. He stated that the deceased had two wives namely Rosa Tabutany Mosonik (deceased) and Esther Cherono. He stated that prior to his demise, the deceased distributed his property between the two houses, Rosa Tabutany Mosonik and her children were settled at Mumbo Farm in Songhor whereas Esther Cherono and her children were settled at Chepseon at Plot No. 35 now known as Kericho/Chesinende/35. On cross examination, Pw. 3 stated the deceased used to live in Tumoi Bomet then moved to a settlement scheme, Mumbo Settlement Scheme with the first wife whereas the second wife moved to Chepseon. He stated that the deceased took responsibility for John Simotwo upon the demise of his father.

17. Esther Cheptanui Chebochok (Pw. 4) stated that she executed an affidavit dated 28th November, 2016 and wished to have it adopted as her evidence in chief. In the said affidavit she stated that she is the first born daughter of the deceased and Rosa Tabutany Mosonik (deceased). She stated that her father had distributed his property prior to his demise. She stated that Rosa Tabutany Mosonik (her mother) and her children were settled at Mumbo Farm in Songhor whereas Esther Cherono (her stepmother) and her children were settled at Chepseon at Plot No. 35 now known as Kericho/Chesinende/35. She stated that John Simotwo is not her step brother. On cross examination, Pw. 4 confirmed that John Simotwo’s father was a brother to their deceased father. She stated that she grew up in Bomet sometime after John Simotwo's father passed away they moved to Kericho and that the Bomet land was sold off.

18. Reuben Malakwen Soi (Pw. 5) the protestor herein stated that he executed an affidavit or protest dated 19th September, 2016 and wished to adopt it as his evidence in chief. He stated that he was not consulted when the instant succession proceedings were filed. He stated that his deceased father had two wives, one Rosa Mosonik who resided in Muhoroni and Esther Cherono, his mother who lives in Chisenende Kipkelion. He stated that there is no relationship between Rosa Mosonik and John Simotwo.

19. At the end of the Protestor Case, the 2nd Petitioner/Respondent availed two (2) witnesses in support of his case.

20. David Kitur arap Muge (Dw. 1) stated that he executed a witness statement dated 19th September, 2018 and wished to have it adopted as his evidence in chief. He stated that John Simotwo is the son of Sesat Arap Mosonik the elder brother of Kipsoi Arap Mosonik and that the two brothers lived in Bomet County in Tumoi Sub Location. He stated that sometime after the demise of Sesat Arap Mosonik, the deceased sold the land in Tumoi and moved to Chepseon Plot No. 35 with his wives and children. He stated that upon the demise of the deceased Esther Cherono Mosonik chased away the children of Rosa Tabutany and John Simotwo, who were rendered homeless and destitute. On cross examination, Dw. 1 confirmed that Plot No. 35 Chepseon is where Reuben (the Protestor) and his mother live.

21. Grace Chebet Maritim (Dw. 2) stated that she executed a witness statement dated 19th September, 2018 and wished to have it adopted as her evidence in chief. She stated that she knows John Simotwo and that he is her brother. She stated that when they were young they lived in Tumoi Bomet County, the deceased sold the land in Tumoi and the entire family moved to Chepseon. She stated the fact that she and John were children of Sesat notwithstanding, John Simotwo ought to inherit the estate of the deceased alongside the deceased’s children having grown together. She stated that she was well provided for in her matrimonial home. On cross examination, Dw. 2 stated that Sesat had died when they were born and they therefore knew Kipsoi Arap Mosonik, the deceased, as their father. She confirmed that the deceased had two wives Tabutany and Esther Cherono Mosonik.

22. At the close of the hearing of the cause parties were directed to file their written submissions.

23. The 2nd Petitioner submitted that the 1st & 2nd Petitioner are equal dependents of the estate of the deceased and that the deceased was polygamous as provided for in Part III and section 40 of the Law of Succession Act (Cap. 160, Laws of Kenya) (the “Act”) which provides as follows;“Where an intestate has married more than once under any system of law permitting polygamy, his personal and household effects and the residue of the net intestate estate shall, in the first instance, be divided among the houses according to the number of children in each house, but also adding any wife surviving him as an additional unit to the number of children...”

24. The 2nd Petitioner further submitted that the court should not strictly apply section 40, rather, it should apply the section generally to demonstrate that the deceased indeed had two wives and therefore the estate of the deceased should be distributed equally amongst the two houses wherein the Succession Act defines a “house” as “a family unit comprising a wife, whether alive or dead at the date of the death of the husband and the children of that wife”. The Petitioner cited the case of Kyoa Ndewa v Patrick Mulyungi Ndewa & another [2022] eKLR where the court noted as follows;“The courts have held that applying the Section strictly in some instances can lead to serious injustice.” The 2nd Petitioner contended that evidence was tendered in Court by his two witnesses that the deceased had two wives, the 1st wife was the mother of the 2nd Petitioner and she was inherited by the deceased herein from his deceased brother.

25. The 2nd Petitioner was adamant that he and his siblings are children of the deceased whether the deceased and/ or the deceased brother sired them and that each of the children are constitutionally bound to share in the estate of the deceased. The Petitioner cited the case of Re Estate of Joseph Eric Owino (Deceased) [2022] eKLR, where the court held as follows;“for purposes of succession, all children, in spite of the marriage status of their parents, are entitled to an inheritance. The aforementioned statement refers to children who fail within the parameters of Section 3 (2) of the Law of Succession Act. This court is inclined to disregard the mode of distribution proposed by the Ist Applicant since the same does not make provision for the entitlements that are due to the deceased's children who were born out of wedlock. If such a mode of distribution was to be adopted by this Court, it would result in manifest discrimination in contravention of the provisions of Article 27 of the Constitution of Kenya, 2010 which expressly prohibit discrimination on any ground...”

26. The 2nd Petitioner submitted that grant was issued in pursuance of the Court Decree dated 26th November, 2013 in Kericho CMCC No. 113 of 2010 which adopted the Land Disputes Tribunal Ruling that vested the 2nd Petitioner with three acres of Kericho/Chesinende SS/35. This court decree as provided for in the Land Disputes Tribunal Act, 303A Laws of Kenya was never appealed against by the Protestor or the 1st Petitioner. The 2nd Petitioner contended that the protest filed by the Protestor is a pseudo appeal which the Protestor and/or the 1st Petitioner failed to file when the Land Disputes Tribunal made its ruling on the land held in common and the claim to occupy Kericho/Chesinende SS/35 by the 2nd Petitioner and his siblings. The 2nd Petitioner urged this Court to find that the Protestor failed to utilize the elaborate and comprehensive dispute resolution mechanism that was then provided by the Land Disputes Tribunal.

27. The 2nd Petitioner urged this Court to determine this matter on the basis of the Land Disputes Tribunal judgement which subsists as provided for under the legal status of decisions made by the Land Disputes Tribunals established under the repealed Land Disputes Act is established under Section 23 (3) of the Interpretation and General Provisions Act (Cap 2) and in the case of Sally Jemeli Korir & Another v William Suter & 2 others [2020] eKLR the court the held that:“Section 23(3) (e) of the Interpretation and General Provisions Act preserves and protects decisions and awards made by the defunct Land Disputes Tribunals. Similarly, it preserves and protects judgments adopted and pronounced by Magistrates’ Courts within the framework of the repealed Land Disputes Act. They remain valid judgments of the courts. The resultant decrees remain valid binding instruments capable of execution”

28. The 2nd Petitioner submitted that the Protestor being the dependant and not a beneficiary does not possess the capacity to file a protest since his mother the 2nd Petitioner herein has not been dispossessed but a court decree binds her to accommodate the 2nd Petitioner in Kericho/ChesinendeSS/35.

29. The 2nd Petitioner urged this Court to find that the Protestor has not demonstrated and/or proved fraud as required in Section 76 of the Succession Act, which section the Protestor has not quoted and/or relied on to warrant the revocation of grant.

30. The 2nd Petitioner urged this Court to find that section 40 of the Law of Succession Act applies in this respect since it is not disputed that deceased was polygamous and that all the children of the deceased are constitutionally bound to benefit from the estate of the deceased as provided for in Section 38 of the Act.

31. The Protestor filed submissions, he reiterated that the deceased died intestate and had married two wives under customary law, hence the applicable law was section 40 of the Succession Act.

32. The Protestor maintained that prior to the demise of the deceased, he had divided his property, the first house was settled in Mambo Farm in Songhor whereas the second house was settled in plot 35 also known as Kericho/Chesinende/35. The crux of the dispute being that the 2nd Petitioner/Respondent wanted to inherit from the deceased claiming that he was a son of the deceased and therefore a beneficiary of the estate, yet he was not a biological son to the deceased.

33. The Protestor contended that the 2nd Petitioner/Respondent was not entitled to inherit from the deceased as he had not proven dependency on the deceased during his lifetime under section 29 (a) and (b) of the Law of Succession Act and failed to establish any special circumstances placing him within the legal framework of heirs to the deceased.

34. The Protestor maintained that the 2nd Petitioner/Respondent acted fraudulently to obtain letters of administration in respect to the estate of the deceased, he fraudulently obtained a grant of letters of administration without the knowledge or consent of one Esther Cherono Mosonik the 1st Petitioner/Respondent a widow of the deceased herein who filed an affidavit confirming that she never petitioned for a grant of letters of administration in the instant succession cause and that the petitioner herein is a stranger to the estate.

35. The Protestor contended that the 2nd Petitioner/Respondent included himself and his children as beneficiaries to the estate of the deceased hence violating the provisions of section 40 of the Law of Succession Act and further that should the proposed summons for confirmation be adopted it will be a miscarriage of justice with the result that persons who were not beneficiaries of the deceased would inherit from the estate of the deceased.

36. Having considered the summons for confirmation of grant, the facts deponed in the affidavit of protest and the viva voce evidence and submissions by the parties, I find that the sole issue for determination is whether this court should allow the protest.

37. Having considered the affidavit of protest, the bone of contention lies in the fact that the summons for confirmation of grant and affidavit in support of confirmation of grant were prepared and filed without the consultation and/or concurrence of all the beneficiaries and how the subject property ought to be distributed in light of the ruling in Kericho CMCC No. 113 of 2010 which adopted the Land Disputes Tribunal ruling that vested the 2nd Petitioner and his siblings with three acres of Kericho/Chesinende SS/35. It is also the Protestor’s case that his mother Esther Cherono Mosonik 1st Petitioner/Respondent and second wife of the deceased never petitioned for a grant of letters of administration in the instant succession cause and that 2nd Petitioner/Respondent herein is a stranger to the estate.

38. This court having considered the respective cases of the protestor and the petitioner, it is not disputed that the deceased had two wives namely; Rosa Tabutany Mosonik (deceased) and Esther Cherono. It is the finding of this court that the 2nd petitioner John Simotwo has aptly demonstrated that he was a dependant of the deceased as the deceased took responsibility for John Simotwo upon the demise of his father Sesat Arap Mosonik and married his mother Rosa Tabutany Mosonik (deceased).

39. It was the 2nd petitioner’s case that upon the demise of Rosa Tabutany Mosonik, Esther Cherono Mosonik the 1st petitioner chased away the children of Rosa Tabutany Mosonik including John Simotwo the 2nd petitioner who were rendered homeless and destitute. It is further the 2nd petitioner’s case that there was a land dispute that was adjudicated upon by the Land Disputes Tribunal that vested the 2nd Petitioner and his siblings with three acres of Kericho/Chesinende SS/35 and that the decision of the Land Dispute Tribunal was upheld via a court decree dated 26th November, 2013 in Kericho CMCC No. 113 of 2010 which decree was never appealed against by the protestor and/or 1st petitioner.

40. This court has considered the protestor’s case that Rosa Tabutany Mosonik (deceased) and her children were settled at Mumbo Farm in Songhor whereas Esther Cherono was settled on Kericho/Chesinende SS/35 the subject parcel and therefore only the second wife and her children are wholly entitled to Kericho/Chesinende SS/35, however, no tangible evidence has been furnished to this court to support the claim that the children of Rosa Tabutany Mosonik (deceased) were settled at Mumbo Farm in Songhor.

26. It is also the finding of this court that the protestor has not demonstrated and/or proved that the 2nd petitioner acted fraudulently to obtain letters of administration in respect to the estate of the deceased and that he fraudulently obtained a grant of letters of administration without the knowledge and/ or consent of Esther Cherono Mosonik.

27. In the circumstances, it is clear that the affidavit of protest lacks merit. Consequently, the affidavit of protest dated 19th September, 2016 is hereby disallowed. In the end,(i)The summons for confirmation of grant presented by the 2nd petitioner is allowed.(ii)The grant of letters of administration intestate made to Esther Cherono Mosonik and John Simotwo on 7th October, 2015 is hereby confirmed and the distribution of the estate be as per the schedule of distribution prosed by the 2nd Petitioner.(iii)Each party to bear their own costs.

DELIVERED, SIGNED AND DATED AT KERICHO THIS 27TH DAY OF FEBRUARY, 2025. ……………………J.K. SERGONJUDGEIn the Presence of:-C/Assistant – RutohKeter for the ProtestorNo Appearance for Nyadimo for the Petitioner