[2023] KEHC 27044 (KLR)

In re Estate of Late Enock Kitoi Maina (Deceased) (Succession Cause 191 of 2000) [2023] KEHC 27044 (KLR) (13 December 2023) (Ruling)

Neutral citation: [2023] KEHC 27044 (KLR)

Republic of Kenya

In the High Court at Kericho

Succession Cause 191 of 2000

JK Sergon, J

December 13, 2023

N THE MATTER OF THE ESTATE OF LATE ENOCK KITOI MAINA - (DECEASED)

Between

Joseph Kiptonui Rono

Petitioner

and

Emily Chepkirui Rono

Objector

Ruling

1. A grant of letters of administration Intestate in respect of the estate of Enock Kitoi Maina was made to Joseph Kiptonui Rono on September 29, 1998 which grant was confirmed on 23rd November 2017. Pursuant to an application for revocation of grant made by Emily Chepkirui Rono herein referred to as the objector, the certificate of confirmation of Grant issued to Joseph Kiptonui Rono was revoked vide this court’s judgment delivered on 23rd February 2023. A fresh grant was issued to Emily Chepkirui. The objector is yet to file and application for confirmed of Grant issued to her on 23rd February 2023. The 30 days she was given to apply for confirmation of grant have elapsed.

2. Miss Koech learned advocate for the objector made an oral application to have LR No’s Kericho/Kapsuser/709 resurveyed before distribution which application was allowed on 11th May 2023. Before the resurvey is done, Joseph Kiptonui Rono, the petitioner herein filed the Chamber Summons dated 28th July 2023 where of he sought for inter aliai)That pending the hearing and determination of the application herein, this honourable court be pleased to stay execution of the judgment of the 23rd February 2023 and the subsequent orders arising therefrom; in particular, that there be stay of orders of distribution of the estate of the deceased herein.ii)That the Honourable court be pleased to review and/or set aside its judgment delivered on the February 23, 2023. iii)That the Grant of Letters of Administration solely issued to the Respondent, Emily Chepkirui, a daughter-in-law of the Estate, on the 9th May 2023 be vacated and a Fresh grant be issued to the Applicant, or any other person with capacity to administer the Estate of the deceased.

3. The objector did not deem it fit to file a response to the Petitioner’s Summons.

4. In the aforesaid summons, the Petitioner stated that the objector has failed to distribute the estate within 30 days as ordered by the court. The petitioner argued that the failure by the objector to distribute the estate as order is a clear indication that she is not interested to complete the exercise.

5. The petitioner also alleged that the objector has begun distributing the estate to strangers since she is the only administrator of the estate. He further stated that the objector misled the court into revoking the grant issued to him based on the spurious allegations. He also pointed out that the objector being a daughter-in-law, she has no legal standing to administer the estate of the deceased since the deceased’s children are still alive.

6. The petitioner further argued that the 1st house is not involved in the distribution exercise since it does not have an administrator. The petitioner stated that he is apprehensive that should the Respondent be allowed to proceed to distribute the estate, the same shall be marred with lots of uncertainties therefore it is only fair that his court reviews its orders of February 23, 2023 by removing the objector as an administrator and replacing her with him who is a son of the deceased.

7. Having considered the grounds put forward by the petitioner, it is apparent that the main prayer sought is that of review. This court has been beseeched to review and set aside the judgment delivered on February 23, 2023. The effect is to have the grant issued to the objector revoked and for a fresh grant be issued to the petitioner.

8. The main petitioner stated that the objector has no legal standing because she is a daughter-in-law. He also stated that the objector failed to comply with court order direction her to apply for that confirmation of grant within 30 days. It is also stated the objector misled the court to make the order revoking the grant. The principles to be considered in an application for review are well settled. First, is that there should be a discovery of a new and important matter or evidence which, after the exercise of due diligence was not within his knowledge or could not be produced by him at the time when the decree was passed or the order made. Secondly, on account of some mistake or error apparent on the face of record. Thirdly, for any other sufficient reason.

9. The grounds put forward by the petitioner in support of his application do not fit into any of above stated principles. Those grounds appear to be more of grounds of appeal. The petitioner has pointed out that the objector has failed to file an application to her confirmed within 30 days. It is apparent that the objector has not filed the aforesaid application within 30 days. It is apparent that the objector has not filed the aforesaid application within 30 days. The record does not show that this court gave any sanction for failure to comply with the order. It would appear the objector is seeking to have the parcels of land to be re-surveyed first to ascertain the actual size of the land due to each beneficiary after which she would file the application for confirmation of the grant. It is clear that the failure on the part of the objector to file the application for confirmation of grant within the time fixed by the court cannot be a ground for review.

10. In the end I find the petitioner’s Chamber Summons dated July 28, 2023 to be without merit. The same is dismissed with each party meeting its own costs.

11. In order for the succession cause not to procrastinate further, this court issues the following orders and directions:i.The time of 30 days, the objector namely Emily Chepkirui Rono was given to file an application for confirmation of grant having expired is re-issued and is extended by 30 days. In default to do so the grant issued to her shall stand revoked and a fresh grant shall automatically be issued to the petitioner namely Joseph Kiptonui Rono.ii.The Officer In Charge of Sosiot Police station is directed to provide security to the surveyor to carry out a re-survey of the parcels of land known as LR No.Kericho/Kapsuser/651 and LR No. Kericho/Kapsuser/709. iii.The Estate to meet to the re-survey fees.

DATED, SIGNED AND DELIVERED AT KERICHO THIS 13TH DAY OF DECEMBER, 2023J. K. SERGONJUDGEIn the Presence of:-C/Assistant – RutohMwita for the PetitionerNo Appearance for Chepkoech for the Respondent