[2025] KEHC 3954 (KLR)

In re Estate of Kiptare Arap Tele (Deceased) (Succession Cause 015 of 2021) [2025] KEHC 3954 (KLR) (27 March 2025) (Ruling)

Neutral citation: [2025] KEHC 3954 (KLR)

Republic of Kenya

In the High Court at Kericho

Succession Cause 015 of 2021

JK Sergon, J

March 27, 2025

IN THE MATTER OF THE ESTATE OF THE LATE KIPTARE ARAP TELE (DECEASED)

Between

Luisa Chelangat Cheriro

1st Applicant

Annah Keter

2nd Applicant

and

Reuben Mosonik Chumo

Respondent

Ruling

1. The application coming up for hearing is a summons for revocation and/or annulment of grant dated 2nd January, 2025 seeking the following orders;(i)Spent.(ii)Spent.(iii)That the Amended Certificate of Grant dated 31st January 2023 be revoked/annulled.(iv)That the Honourable Court be pleased to make such further orders as it may deem fit and just to grant.(v)That the costs be provided for.

2. The application is supported by the grounds on the face of it and the supporting affidavit of Luisa Chelangat Cheriro the 1st Objector/ Applicant with the authority of the 2nd Objector/Applicant.

3. She avers that she is the daughter of the late Kiptare Arap Tele (Deceased) and that she belongs to the 2nd House.

4. She avers that the deceased died intestate on 12th August 1988 and was polygamous having had three houses with several children surviving him.

5. She avers that the grant was obtained by means of untrue allegations of a fact essential in point of law to justify the grant by Reuben Mosonik Chumo who distributed the estate of her father amongst the sons without involving all the beneficiaries including herself.

6. She avers that she and her sisters were never included in the succession cause even though they are entitled to inherit from her father's estate.

7. She aver that they were not present during the said date of confirmation of grant and they were never informed of the proceedings before the Court.

8. She avers that after the confirmed grant, her brother has threatened to evict her and the other objectors from the portion they have on their father's estate.

9. She avers that upon looking at the grant, she realized that she and the 2nd Objector were not granted any portion out of her fathers estate.

10. She avers that the petitioner filed the succession and distributed 4. 41 Acres amongst himself and her other brothers while he had been given a portion and had sold the same.

11. She further avers that the certificate of confirmation of grant was defective as the same was confirmed without involvement of all beneficiaries and that she has looked at the Consent and realized that they were never listed as part of the signatories and that they never consented to the confirmation of grant as it is.

12. She avers that if the said grant is not revoked, the beneficiaries of the estate of the deceased stand to suffer immense prejudice by being unjustly disinherited and that it is therefore important that the grant dated 31st January 2023 be revoked/annulled to enable fair and equitable distribution of the estate of their deceased father.

13. Reuben Mosonik A. Chumo the Petitioner/Respondent filed a replying affidavit in response to the application.

14. He avers that the Objectors'/Applicants' Summons for Revocation is a non-starter, it is full of misrepresentation of facts and falsehoods, and it is a clear abuse of the court process and therefore ought to be dismissed with costs.

15. He avers that there was no defect in the process that culminated in the grant in issue.

16. He avers that he instituted the instant succession proceedings via citation proceedings and that at the inception of the succession cause, the beneficiaries refused to sign the requisite forms which necessitated the filing of an affidavit dated 14th January, 2021 to the same effect. He avers that prior to filing the amended summons for confirmation of grant dated 11th January, 2023 he served the Objectors/Applicants with consent forms and that they refused to sign them and that he filed an Affidavit of service dated 24th January, 2023 as proof service in order to proceed with succession in compliance with Rule 26(2) of the Probate and Administration Rules.

17. He avers that there is on record a summons requiring attendance issued by this court that was served upon the beneficiaries of the estate for the confirmation hearing which was scheduled on 31st January, 2023.

18. He avers that the issues raised by the Objectors/Applicants Application are res judicata having been raised in the previous application by their brothers and fully addressed by this court. He further avers that the Objectors/Applicants were aware of the succession process that culminated in the issuance of the grant herein even when their brothers were making their application to have the same grant revoked on the same issues raised by the Application herein yet they opted not to participate in the instant succession proceedings.

19. He avers that the Objectors/Applicants were not interested with the shares in the estate of the deceased person herein since they were married and were comfortable with their matrimonial properties and that the Objectors'/Applicants' Application is an afterthought after their brothers who had raised the same issues did not succeed and the same is meant to frustrate and abuse the court process.

20. He avers that it is now almost five (5) years since the said grant was issued and equity aids the vigilant, not the indolent and that the Objectors/Applicants have not given compelling reasons to this Honorable court for their inordinate delay to make the Application herein.

21. He avers that the Objectors/Applicants herein are being used and forced by their brothers who had made the same application on the same issues but did not succeed thus resorting to the Objectors/Applicants herein as their alternative to continue their onslaught to undermine the court power and process.

22. He avers that the Objectors/Applicants Application is meant to deny him the enjoyment of fruit of this Honorable court order and his rightful share in the estate of the deceased and that the Objectors/Applicants have not met the threshold to have the said grant revoked.

23. This court directed the parties to exchange and file their written submissions.

24. At the time of writing this ruling the Applicant/Protesters had not uploaded their submissions on the Case Tracking System.

25. The Petitioner/Respondent reiterated that in the present case the petitioner instituted the instant succession proceedings via citation proceedings and that at the inception of the succession cause, the beneficiaries refused to sign the requisite forms which necessitated the filing of an affidavit dated 14th January, 2021 to the same effect. That prior to filing the amended summons for confirmation of grant dated 11th January, 2023 he served the Objectors/Applicants with consent forms and that they refused to sign them and he filed an Affidavit of service dated 24th January, 2023 as proof service in order to proceed with succession in compliance with Rule 26(2) of the Probate and Administration Rules and that there is on record a summons requiring attendance issued by this court was served upon the beneficiaries of the estate for the confirmation hearing which was scheduled on 31st January, 2023.

26. The Petitioner/Respondent reiterated that the Objectors/Applicants have not met the threshold to have the amended grant dated 31st January, 2023 revoked/annulled as per section 76 of the Law of Succession Act.

27. The Petitioner/Respondent contended that the issues raised by the Objectors/Applicants Application are res judicata having been raised in the previous application by their brothers and fully addressed by this Honorable court in its ruling dated 18th day of December, 2024.

28. The Petitioner/Respondent faulted the Objectors/Applicants for having not given compelling reasons to this Honorable court for their inordinate delay to make the Application herein yet they were aware of the succession proceedings and it is now almost five (5) years since the said grant was issued. He reiterated that Equity aids the vigilant, not the indolent. It has been held that delay defeats equity and cited the case of Ibrahim Mungara Mwangi v Francis Ndegwa Mwangi [2014] eKLR the court quoted the following passage from Snell's Equity by John MCGhee Q.C. (31st Edition) at page 99: "The Court of equity has always refused its aid to stale demands where a party has slept upon his rights and acquiesced for a great length of time. Nothing can call forth this court into activity but conscience, good faith and reasonable diligence; where they want the court is passive, and does nothing."

29. I have considered the application, replying affidavit and submissions by the parties and I find that the sole issue for determination is whether to revoke and/or annul the amended certificate of grant dated 31st January 2023.

30. On one part, the applicant argued that the certificate of confirmation of grant was defective as the same was confirmed without involvement of all beneficiaries. On the other part, the respondent in response to the instant application set out the chronology of events in the instant succession cause. The respondent instituted the instant succession proceedings via citation proceedings and that at the inception of the succession cause, the beneficiaries refused to sign the requisite forms which necessitated the filing of an affidavit dated 14th January, 2021 to the same effect. That prior to filing the amended summons for confirmation of grant dated 11th January, 2023 he served the Objectors/Applicants with consent forms and that they refused to sign them and he filed an Affidavit of service dated 24th January, 2023 as proof service in order to proceed with succession in compliance with Rule 26(2) of the Probate and Administration Rules and that there is on record a summons requiring attendance issued by this court was served upon the beneficiaries of the estate for the confirmation hearing which was scheduled on 31st January, 2023. This court has considered the parties' respective cases and perused the court record and finds that the respondents chronology of events is supported by the court record. In any event the applicants have not disclosed any cogent grounds warranting the revocation and/or annulment the amended certificate of grant dated 31st January 2023 as set out in section 76 of the Law of Succession Act In the case of Albert Imbuga Kisigwa v Recho Kavai Kisigwa Succession Case No 158 of 2000 where Mwita J stated: “Power to revoke a grant is a discretionary power that must be exercised judiciously and only on sound ground. It is not discretion to be exercised whimsically or capriciously. There must be evidence of wrongdoing for the court to invoke section 76 and order to revoke or annul a grant. And when a court is called upon to exercise this discretion, it must take into account the interest of all beneficiaries entitled to the deceased’s estate and ensure that the action taken will be for the interest of justice.”

31. Furthermore, in light of the ruling of this court rendered on 18th December, 2024 in respect to the summons for revocation of grant dated 13 July, 2023 this court finds that the instant application by the Objectors/Applicants raises issues that had been raised in the previous application by their brothers and fully addressed by this court. It is the finding of this court that the instant application is res judicata. Consequently, the notice of motion dated 2nd January, 2025 is hereby dismissed.

DELIVERED, SIGNED AND DATED AT KERICHO THIS 27TH DAYOF MARCH, 2025. ……………………………….J.K. SERGONJUDGEIn the Presence of:-C/Assistant – RutohNo Appearance for the Parties