[2022] KEHC 10880 (KLR)

In re Estate of Kipyegon Mosonik Chuma alias Kipyegon A. Mosonik (Deceased) (Succession Cause 171 of 2007) [2022] KEHC 10880 (KLR) (17 June 2022) (Judgment)

Neutral citation: [2022] KEHC 10880 (KLR)

Republic of Kenya

In the High Court at Kericho

Succession Cause 171 of 2007

AN Ongeri, J

June 17, 2022

IN THE MATTER OF ESTATE OF KIPYEGON MOSONIK CHUMA alias KIPYEGON A. MOSONIK (DECEASED)

Between

Simon Kipkemoi Yegon

1st Petitioner

Benjamin Kimutai Yegon

2nd Petitioner

and

Ngeno Benard Kipkemoi

1st Objector

Jennifer Chelangat Chepkwony

2nd Objector

Ngeno Kibet

3rd Objector

Judgment

1. The court in its Judgment dated 22/3/2017 revoked the grant dated 14/11/2007 which was issued to Simon Kipkemoi Yegon and Benjamin Kimutai Yegon and confirmed on 6/5/2014 after hearing the summons for revocation filed by Ngeno Benard Kipkemoi, Jennifer Chelangat Chepkwony and Ngeno Kibet dated 31/7/2017.

2. On 24/11/2020, the Court appointed Bernard Kipkemoi Ngeno and Simon Kipkemoi Yegon as Administrators of the Estate but the parties did not agree on mode of distribution.

3. The 1st petitioner Benard Kipkemoi Ngeno filed a summons for confirmation dated 8/4/2021 and attached their proposed mode of distribution of the Estate.

4. The 2nd petitioner Simon Kipkemoi Yegon file their Affidavit on preferred mode of distribution dated 12/2/2021 stating that the 1st Petitioner is not a beneficiary of the estate of the Deceased here.

5. Thecourt directed that the matter proceeds by way of viva voce evidence.

6. The 3rd petitioner Simon Kipkemoi Yegon testified as OW.1. He also filed a witness statement dated 21/6/2021 in which he stated that the deceased took out a loan in material form of 3 dairy cattle, 7 barbed wires, steel water tank 3000-4000 litres and gutters in the year 1970 from AFC which loan matured in the year 1974.

7. The deceased was not able to repay the loan. AFC wanted to sell land to recover the loan. The deceased (his father) sold 1. 03 acres of land to settle the loan amount, but the amount which he sold the land could not settle the loan amount. In addition to this, his mother (now deceased) enlisted her brother’s help to clear the loan, the brother sold two bulls to help offset the loan amount.

8. That sometime in 1981 the loan balance matured again and AFC officers sought to know how the loan would be cleared and that he, his two sisters Mary and Janet and his mother went to AFC offices and negotiated on how to clear the loan and stopped AFC from auctioning the land, they subsequently cleared the loan.

9. That in 1991 they collected the title deed from AFC which title was under his father’s name, the father gave OW 1 the title as he and the others had repaid the loan and were it not for their efforts to repay the loan, the land would have been auctioned and there would be no land to be subdivided among the family members.

10. The 2nd petitioner called one witness Samuel Kiplangat who also relied on his statement filed on 21/6/2021 in which he stated that he vividly recalled sometime in 1974 when his aunt Leah Chepkurui Chuma (now deceased) came to their homestead and requested for financial assistance from his father to enable her husband Kipyegon Mosonik Chuma (deceased) to repay a loan he had taken from AFC to salvage their property Kericho/Kapsuser 103. The deceased had defaulted in servicing the loan. He stated that his father sold two bulls to offset the loan amount and that his family was subsequently compensated for the two bulls.

11. The 1st petitioner Bernard Kipkemoi Ngeno did not call any witnesses. He relied on his replying affidavit dated 20/8/2020 in which urged the court to add him as a co-petitioner. He further deposed that the identification of beneficiaries and the share of all beneficiaries to the estate of the deceased herein had been ascertained and determined as per the attached schedule.

12. The parties filed written submissions which I have duly considered.

13. It was submitted on behalf of the petitioners/respondents that the objectors/applicants were not entitled to the deceased’s estate and had failed to show or prove any degree of consanguinity and affinity to Kipyegon Mosonik (deceased).

14. It was submitted on behalf of the petitioners/respondents that for there to be fair and just distribution of the 15. 6 acres of Kericho/Kapsuser/103, the land parcel should be shared equally amongst the three children namely Janet Chepkorir Chumo Langat, Mary Cherop Chumo Rono and Simon Kipkemoi Yegon that paid the loan owing to AFC, failure to which the land was to be auctioned.

15. It was submitted on behalf the objectors/applicants that the petitioners/respondents had not disproved the fact that the late Zeddy Chepngeno Chumo was married to Jennifer Chelangat under the Kipsigis customary woman to woman marriage.

16. It was submitted on behalf of the objectors/ applicants that the petitioner/respondents were claiming a larger portion of the deceased’s estate on account of the payments allegedly paid to AFC leading to a discharge of charge that was issued to the deceased. The objectors/ applicants contended that this happened during the lifetime of the deceased, and could not hold any water in a succession cause. Following the demise of the deceased, the law of inheritance was applicable which requires that the deceased’s estate should be divided equally among the surviving children as they were no surviving spouses.

17. I have considered the evidence adduced in this case together with the affidavits filed herein and the written submissions.

18. I find that there is no dispute that Zeddy Chepngeno Chumo was the 1st wife of the deceased herein.

19. There is no dispute that she did not have children and further that she married Jennifer Chepkwony under the kipsigis custom of woman to woman marriage and that Jennifer Chepkwony is the mother of Benard Kipkemoi Ngeno and Ngeno Kibet.

20. The issues for determination in this Judgment are as follows:-(i)Whether the Petitioners are entitled to a larger share of the Estate by virtue of having paid a loan taken by the deceased.(ii)Whether Jennifer Chepkwony and her two children are entitled to share the Estate of the deceased.(iii)Who pays the costs of this case?

21. On the issue as to whether Simon Kipkemoi Yegon and the 2nd house are entitled to a bigger share of the Estate, their evidence is that they paid a loan on behalf of the Deceased.

22. However, I find that the property is in the name of the Deceased.

23. If they are saying they are entitled to the property Kericho/kapsuser/103 the same should have been in their names but it is in the name of the Deceased Kipyegon Mosonik.

24. Thedeceased was alive when they said they repaid the loan and he did not transfer the title to them. Their mother was also still alive and the property was not transferred to her name.

25. I therefore find that the said property belongs to the Deceased and it should be shared equally.

26. On the issue as to whether Jennifer Chepkwony and her two sons are beneficiaries of the Estate, I find that the answer is in the affirmative since it is not in dispute that the 1st Wife of the deceased married Jennifer Chepkwony under Woman to woman marriage and that she had two Children.

27. In the case of Monica Jesang Katam Vs. Jackson Chepkwony &another [2011] eKLR, a similar issue arose and Ojwang, J. (as he then was) was confronted with the question as to whether a woman-to-woman marriage as practiced by the Kipsigis and Nandi communities is valid. He took the following view of the matter; “This custom, I hold, is to be read into the scheme of s. 29 of the Law of Succession Act (cap 160), placing the petitioner and her children in the first line of inheritance; the petitioner herself being “wife of the deceased”, and her children for being the children of the deceased. The conclusion to be drawn is that the petitioner is entitled to the grant of letters of representation.”

28. I therefore find that she is entitled to a share the Estate with her children.

29. I accordingly find that the estate should be shared equally amongst all the beneficiaries.

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

DELIVERED, DATED AND SIGNED AT KERICHO THIS 17TH DAY OF JUNE, 2022A. N. ONGERIJUDGE