[2022] KEHC 10005 (KLR)

In re Estate of Michael Kipkosgei Kurgat (Deceased) (Probate & Administration 12 of 2011) [2022] KEHC 10005 (KLR) (18 May 2022) (Ruling)

Neutral citation: [2022] KEHC 10005 (KLR)

Republic of Kenya

In the High Court at Eldoret

Probate & Administration 12 of 2011

RN Nyakundi, J

May 18, 2022

IN THE MATTER OF THE ESTATE OF MICHAEL KIPKOSGEI KURGAT - DECEASED

In the matter of

Ascah Kurgat Cheptiony

Petitioner

Ruling

Introduction & Background 1. The deceased, Michael Kipkosgei Kurgat died intestate on the 1st of April 2002. He is survived by 7 dependants drawn from 2 households. The first house is survived by Hillary Kimutai Kurgat, the 2nd administrator. The second house is survived by 6 people being the petitioner herein (widow), and 5 issues namely Antoninah Cheruto Kurgat, Sheila Jekorir, Marion Jepkoech Kurgat, Edward Kipkemei Kosgei and Daisy Jebet Kurgat.

2. At the time of his death, the deceased left behind the following properties:a.Sergoit KoiwoptaoiBlock 8/17 measuting 20. 23 Ha (approximately 50 acres).b.Tembelio/elgeyo Border Block 5 (ex-toodley) 68 measuring approximately 3. 250 Hac.Tractor Registration No KXX 468d.Tractor Registration No. KUE 042e.Two Disc Ploughsf.Trailer andg.Harrow

3. On the 26th of July 2011 the court issued letters of administration intestate to the petitioner herein. However, the same was disputed by Hillary Kimtai Kurgat through summons dated the 30th of August 2013 seeking the revocation of the grant of letters of administration issued to the Petitioner herein on grounds inter-alia that the petitioner had not sought the consent of all the beneficiaries of the estate, the petitioner had forged the applicant’s signature appearing on the consent form filed in court, the petitioner had not disclosed all the beneficiaries to the deceased estate and that the assets set out in the petition were not the only properties left behind by the deceased.

4. After hearing the parties, this court on the 5th of May 2021, revoked the grant issued and confirmed to the petitioner herein on the 26th of July 2011. The court directed the objector and the petitioner to jointly apply for letters of administration.

5. The two complied with the court’s decision and on the 8th of February 2022 fresh grant of letters was issued to Hillary Kimutai Kurgat and Ascah Kurgat Cheptiony jointly. The court further directed the parties to file the inventory of the intestate property, evidence of ownership or physical control beneficial to the deceased during his lifetime.

6. In light of this, the Petitioner herein through summons dated the 25th of February 2022 petitioned this court to confirm the grant of letters issued by Court to her and Hillary Kimutai and to adopt the proposed mode of distribution. The application was supported by the affidavit of the petitioner sworn on even date wherein she proposed the distribution of the property as follows:

ASSETS:SERGOIT/KOIWOPTAOI BLOCK 8/17 MEASURING TO ACRES

BENEFICIARY NAME SHARE

1. Edward Kipkemei Kosgei 3 acres

2. Antonina Cheruto Kurgat 3 acres

3. Ascah Kurgat (Widow) 7 ½ Acres

4. Sheila Jepkorir 3 acres

5. Marion Jepkoech Kurgat 3 acres

6. Daisy Jebet Kurgat 3 acres

7. Hillary Kimutai Kurgat 3 Acres

PURCHASERS

1. Ambrose Kipkoech Lamaon 4 ½ Acres

2. Felix Kibet Kipkoech 10 Acres

3. Allan Kiptoo Koech 10 acres

TEMBELIO/ELGEYO BORDER BLOCK 5 (EX-TOOLEY)/68 MEASURING 3. 520 HA

1. Edward Kipkemei Kosgei 1. 449 Acres

2. Antonina Cheruto Kurgat 1. 449 Acres

3. Hillary Kimutai Kurgat 1. 449 Acres

4. Sheila Jepkorir 1. 449 Acres

5. Marion Jepkoech Kurgat 1. 449 Acres

6. Daisy Jebet Kurgat 1. 449 Acres

Movable Assets 7. The petitioner proposed that the two movable assets namely Tractors registration Numbers KUE 042 and KXX 468 be sold and the proceeds be shared equally among all the 7 beneficiaries with priority being given to any beneficiary who may wish to purchase the same.

8. Finally, the petitioner deponed that as highlighted in the above mode of distribution, land known as Tembelio/Elgeyo Border Block 5 (ex-tooley) 68 be dived equally among all the beneficiaries except the petitioner herself.

9. The Petitioner’s co-administrator namely Hillary Kimutai Kurgat on his part vide his affidavit in support of the proposed mode of distribution sworn on 25th February 2022, proposed a different mode of distribution and introduced an additional purchaser namely John Cheptum alleging that the deceased sold 20 acres comprised in Sergoit Koiwoptaoi Block 8/17. He attached a sale agreement made on the 8th of August 1986 between John Kipkoech Cheptum and the deceased which is marked HKK 3. Mr Cheptum also swore an affidavit dated 25th February 2022 confirming this position. He also added 3 more assets to the estate namely a trailer, two-disc ploughs and harrow.

10. The co-administrator further averred that prior to the deceased demise, he gifted him and his step-brother Edward Kipkemei Kosgei the tractors KUE 042 and KXX 468 respectively. He noted that each of the tractors is in custody and physical control of either of them. He also noted that he had been left out in the 8/17 Sergoit Koiwoptaoi property and that he had been given less prime property.

11. Finally, the co-administrator noted that a maize planter and chisel were his personal property and therefore do not form part of the estate of the deceased. This is because he averred that he bought the maize planter from a Mr. Charles Sawe who had bought the same from the deceased. Mr. Sawe swore an affidavit on the 25th of February confirming the same. As regards the chisel, it was his position that he bought the same from Agricultural Finance Corporation scrap yard in 1994 for Kshs 2500.

12. As such, his proposed mode of distribution was as follows:

PROPERTY BENEFICIARY SHARE

SERGOIT KOIWOPTAOI BLOCK 8/17 (50 ACRES) 1ST HOUSEHillary Kurgat2ND HOUSE1. Ascah Kurgat Cheptiony2. Antoninah Cheruto Kurgat3. Sheila Jepkorir4. Marion Jepkoech Kurgat5. Edward Kipkemei Kosgei6. Daisy Jebet KurgatPURCHASERS1. John Cheptum2. Ambrose Lamaon 10 Acres0. 2 acres3. 0 acres3. 0 acres3. 0 acres3. 0 acres3. 0 acres20 Acres4 acres

TEMBELIO/ELGYO BORDER BLOCK 5 (EX-TOOLEY) 68. (3. 520 Ha) 1st HOUSE1. Hillary Kurgat2ND HOUSE1. Ascah Kurgat Cheptiony2. Antoninah Cheruto Kurgat3. Sheila Jepkorir4. Marion Jepkoech Kurgat5. Edward Kipkemei Kosgei6. Daisy Jebet Kurgat 1. 76Ha0. 293Ha0. 293Ha0. 293Ha0. 293Ha0. 293Ha0. 293Ha

TRACTOR REG NO KUE 042TRACTOR REG NO KXX 468 Hillary KurgatEdward Kipkemei

2 DISC PLOUGHS Hillary KurgatEdward Kipkemei 11

TRAILERHARROW Hillary KurgatEdward Kipkemei

Determination 13. I have considered the entire evidence and the submissions of all parties and find the only issue for determination to be which mode of distribution is fair?

14. For starters, there is no doubt that the deceased was survived by two houses. The first house is survived by Hillary Kumtai Kurgat, son to the deceased while the second house is survived by the widow, Ascah Cheruto Kurgat and 5 children namely Antoninah, Sheila, Marion, Edward and Daisy. The total number of beneficiaries being 7 persons.

15. In addition, there is no dispute that the deceased left behind the following properties, which was not disputed by any party;1. Sergoit/koiwoptaoi Block8/17 measuring 20. 23 Ha (approximately 50 acres)2. Tembelio/elgeyo Border Block5 (Ex-Tooley)/68 measuring approximately 3. 520Ha3. Tractor registration Number KXX 4684. Tractor Registration Number KUE 0425. Two-disc ploughs6. Trailer7. Harrow

16. Accordingly, the issue therefore is how the above ought to be distributed.

Sergoit/koiwoptaoi Block 8/17 Measuring 20. 23 Ha approximately 50 acres 17. As regards the first asset namely Sergoit/koiwoptaoi Block8/17 Measuring 20. 23 Ha approximately 50 acres, the petitioner proposed that the same be divided equally among all the children being 3 acres each and that as the deceased widow, to get 7 ½ acres. In addition, the petitioner proposed that the purchasers of the asset get their share that they duly bought from the deceased. The purchasers were listed as Ambrose Lamaon 4 ½ acres, Felix Kibet Kipkoech 10 acres and Allan Kiptoo Koech 10 acres.

18. The above mode was opposed by Mr. Hillary Kurgat, the 2nd administrator who proposed that he gets 10 acres and the other children from the second house to each get 3 acres and the deceased widow/petitioner, to get 0. 2 acres. Furthermore, Mr. Kurgat did not dispute the fact that part of the asset approximately 20 acres had been sold to Felix Kibet Kipkoech and Allan Koech equally. It however emerged during the proceedings that the sale of 4 ½ acres to one Ambrose Kipkoech Lamaon was done after the deceased died but without the administration of the estate. In this regard, Mr. Kurgat proposed that the same be curved out of the benefit to the petitioner. The same was affirmed by the petitioner herself during the hearing of the objection proceedings. Finally, Mr. Kurgat proposed that 20 acres be given to one John Cheptum whom he averred had bought land from the deceased prior to his death and produced a sale agreement to the same effect. The same was not disputed by the petitioner.

19. Where the deceased dies intestate, as is the case herein, Section 35 of the Law of Succession Act is to the effect that the surviving spouse is entitled to personal and household effects of the deceased absolutely and a life interest in the remainder of the assets. The same however is held for the ultimate benefit of the children as contemplated under Sections 35(5) and 41 of the Law of Succession Act. The life interest only entitles the surviving spouse to the use and utility of the property, the subject of the life interest. The property does not pass to the surviving spouse absolutely. See in the matter of the Estate of Basen Chepkwony (deceased), Nairobi High Court Succession Cause Number 842 of 1991.

20. The foregoing points to the fact that the ultimate beneficiaries of the estate of a deceased person are his/her children and it matters not their gender. For as long as they are children of the deceased, they are entitled to the estate of the deceased. For a long time, community customs were discriminatory towards daughters whether married or unmarried and children born out of wedlock or of an adulterous union. The law of succession does not define who a child is. However, case law has long established that the law of succession does not distinguish between male and female children or children born out of wedlock.

21. Recent case law, perhaps informed by Section 41 of the LSA, where the deceased is survived by a spouse and children, it is only fair that they each get an equal share in the estate of the deceased for purposes of fairness. To this end, I find merit in the petitioner’s proposed mode of distribution of the first asset namely Sergoit/Koiwoptaoi Block8/17 Measuring 20. 23 Ha approximately 50 acres that the same be shared equally amongst all beneficiaries after all the liabilities and purchasers interests have been taken care of as hereunder.

22. In addition, it is uncontroversial that purchasers of the deceased estate prior to his death are protected by law and have an interest in the estate of the deceased. According to section 3 of the Law of Succession Act, “estate” means “the free property of a deceased person” while “free property” “free property”, in relation to a deceased person, means “the property of which that person was legally competent freely to dispose during his lifetime, and in respect of which his interest has not been terminated by his death.”

23. It is therefore clear that the only property that forms part of the estate of the deceased is that property which the deceased herein was legally competent to dispose of during his lifetime and in which by that time his interests had not been terminated.

24. However, in the case of Johnson Muinde Ngunza & Another vs. Michael Gitau Kiarie & 12 Others [2017] eKLR, the Court stated that:“[T]he Law of Succession Act recognizes the purchaser’s rights and in support of these submissions the said (sic) the Law of Succession defines a “Purchaser”. Purchaser according to the Act means a purchaser for money or money worth.”

25. Similarly, in Mpatinga Ole Kamuye vs. Meliyo Tipango & 2 Others [2017] eKLR, the learned judge observed that:“This Court's view before distribution of the estate of the deceased under Section 71 of the Law of Succession Act Cap 160; the Court must satisfy itself that the beneficiaries of the estate are the legitimate beneficiaries of the estate; that there are assets that comprise of the deceased's estate and are available for distribution after settling all liabilities and having the net estate for distribution.”

26. In this case, the interests of the purchasers namely John Cheptum, Felix Kibet Kipkoech and Allan Kiptoo Koech were those of persons who had entered into sale agreements with the Deceased for the sale of portions of the lands forming part of the Deceased’s estate. If there were such agreements then their interests can be legitimately taken into account in distributing the estate of the deceased. In dealing with a similar matter, Makhandia, J (as he then was) in Titus Muraguri Warothe & 2 Others vs. Naomi Wanjiru Wachira Nyeri HCSC No. 122 of 2002 held that:“In the instant case the applicants are purchasers for value of a portion of the deceased’s estate comprised in the grant. There is uncontested and unchallenged evidence that before the deceased passed on he had sold various portions of land to the applicants and he had been fully paid and had indeed put each one of the applicants in possession of their respective portions that they had purchased. The applicants have to date been in continuous and uninterrupted occupation of those portions and have extensively developed them.”

27. From the record, there is no evidence to indicate that the said Felix Kibet Kipkoech and Allan Kiptoo Koech purchased land from the deceased prior to his death. I find their inclusion in the proposed mode of distribution suspicious. This is because, their names have never appeared anywhere prior to the proposed mode of distribution. For example, un the affidavit in support of summons for confirmation of grant of administration intestate sworn on the 13th of December 2012, the petitioner never listed Felix or Allan as having any interest in the estate of the deceased. I thus come to the conclusion that there is no evidence to suggest that the two purchasers have any interest in the estate of the deceased.

28. On the contrary, there is every evidence to show that the deceased indeed sold 20 acres to John Cheptum. This is confirmed by the sale agreement between the deceased and John Cheptum made on the 8th of august 1986. This was further confirmed by the petitioner herself in her reply sworn on the 10th of December 2013 in response to the 2nd administrator’s objection/application dated the 30th of August 2013 where she acknowledged that the deceased sold 20 acres to John Cheptum. I therefore find that indeed the said John Cheptum is a bonafide purchaser with interest in this asset of the deceased.

29. As regards Ambrose Lamaon, it emerged during the proceedings that the sale of 4 ½ acres to him was done after the deceased died but without the administration of the estate. In this regard, Mr. Kurgat proposed that the same be curved out of the benefit to the petitioner which the petitioner agreed to. However, courts cannot affirm illegalities. I say so because Section 82 of the Law of Succession Act provides that no immovable property of a deceased person shall be sold before confirmation of grant yet the sale agreement produced by the petitioner confirmed that the sale took place on the 26th of May 2003 between the petitioner and Ambrose way before the confirmation of grant. The act of selling the land to Ambrose constitutes Therefore, it follows that the sale of the 4 ½ acres by the petitioner was illegal null and void and cannot confer any good title to the said Ambrose Lamaon. The same thus constitutes part and parcel of the estate of the deceased up for distribution as per paragraph 21 above.

Tembelio/Elgeyo Border Block 5 (ex-tooley)/68 30. As regards this asset, I find reasonable the mode of distribution proposed by the petitioner. I do not find merit in the proposed mode of distribution made by the 2nd administrator Mr. Kurgat. This is because he has allocated himself more land than anyone else and no explanation provided for the same. In any case, as noted above, children of the deceased are entitled to equal shares regardless of their gender or marital status. I thus confirm the mode of distribution as proposed by the petitioner.

Tractors Reg Nos KUE 042 and KXX 468 31. These movable assets are disputed by the administrators. The petitioner wants them sold and proceeds shared equally while the 2nd administrator contends that the deceased gave the same to him and his step-brother together with 1-disc plough each.

32. Considering that the step-brothers confirmed that they are in physical possession of one tractor each and 1disc plough, I find credence in the proposed mode of distribution of the same by Hillary Kurgat, the 2nd administrator. The same is hereby adopted and confirmed by court. The same goes for the trailer and harrow.

Maize Planter and Chisel 33. The petitioner wants the same sold and proceeds shared equally while the 2nd administrator contends that they are his personal property since he bought the same from a Mr. Saw and Agricultural Finance Corporation (AFC). To this end, he tabled evidence of the same vide affidavits of Mr. Sawe and Joseph Kipkoech, an officer of AFC. Both confirmed that the 2nd administrator bought the maize planter and chisel from them respectively.

34. In the absence of rebuttal evidence by the petitioner, the same are hereby granted to the 2nd administrator.

Disposition 35. The final orders of court therefore are that:1. The property namely Sergoit/Koiwoptaoi Block8/17 measuring 20. 23 Ha (approximately 50 acres) be distributed equally amongst all beneficiaries save for 20 acres that was purchased by John Cheptum from the deceased.2. The property namely Tembelio/Elgeyo Border Block5 (EX-TOOLEY)/68 be divided equally amongst all the children of the deceased.3. That tractors Registration Numbers KUE 042 andKXX 468 and 1disc plough each are hereby granted to Hillary Kurgat and Edward Kosgei respectively.4. That the maize planter and chisel are the personal properties of Hillary Kurgat and the same are granted to him.

36. Being a family matter, each party to bear their costs.

37. Orders accordingly.

DATED, SIGNED AND DELIVERED VIA EMAIL AT ELDORET THIS 18TH DAY OF MAY, 2022. ............................R. NYAKUNDIJUDGE(omondicoadvocates@gmail.com, info@kibiilaw.com)