[2009] KEHC 3460 (KLR)

REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT KERICHO

Succession Cause 250 of 2005

Estate of RAPHAEL CHERUIYOT ROTICH . …….... …..DECEASED

And

JULIANA CHERONO ROTICH …..…………………… }PETITONERS

PRISCIALLA CHEPKEMOI ROTICH ………………….}

RULING

I: Procedure

1. Raphael Cheruiyot Rotich, a male adult aged 56 years old as at 14th February, 2005, passed away. He was married to two women Juliana Cherono Rotich aged 51 years in 2005 and Priscila Chepkemoi Rotich aged 47 years old in 2005.

2. Both the widows applied for letters of grant intestate on 22nd December, 2005 in this one file to their late husband’s estate. Both the widows had adult and minor children whose interest required to be taken into account. Letters of grant was issued on 9th February, 2006.

3. On 10th February, 2006, they filed a notice appointing the firm of C.K. Korir to act for them. An urgent application followed dated 10th February, 2006 seeking leave to withdraw a sum of Kshs. 384,460/= from the bank account of the estate of the deceased. This application came before Kimaru J who directed that apportion of the sum be divided and distributed. This was so, as of 13th February, 2006 there was another application that there was a sickly child. A further application to confirm the grant before the six (6) months was up was also prayed for in the same application.

4. The two widows it seems in their impatience stormed the judge’s chambers who rightly disqualified himself from hearing the matter (Kimaru J).

5. The Deputy Registrar referred the petitioners to Nakuru when it came before Musinga J then Koome J. a sum of Kshs. 384,460/= was authorized and released to the parties (Koome J)

II: Application 26th February, 2009

6. The applicants now prays that the estate of the deceased having been equally distributed between the two houses be accordingly confirmed.

7. The Hon. Judge Kimaru J had directed the parties to include the apportionment of moneys. The judges orders has not been clearly shown in the present application save to state that the shares of money be equally divided together with any other funds. The Hon. Judge also sought for written consent from the adult children on the distribution of the estate.

II:Findings

8. Minors are involved in this estate. From the bank statement filed to court a sum of Kshs. 1,000,000/= was paid into the bank account as the pension or entitlement of the deceased out of this sum Kshs. 384,460/= was paid to the administratix to deal with urgent and pressing needs of the children education. Each now have stated a sum of Kshs. 377,770 X2 be divided to each house.

Therefore 1,000,000/=

- 384,460/=

715,540/=

=========

Divide by two

= 377,770/= each possibly to take into account bank charges.

9. The apportionment as ordered by Kimaru J was given as:-

FIRST House

a) Aron Kibet 13 years 200,000/=

b) Nicholas Kipkoech Cherot 18 years 150,000/=

c) Peter Kipngetich Cheruiyot 34 years 50,000/=

d) Charles Kipkorir Cheruiyot 32 years 50,000/=

e) Kipkurui Cheruiyot 26 years Kshs. 50,000/=

d) Juliana Cherono Rotich widow Kshs. 70,000/=

570,000/=

============

SECOND House

a) Benard Kipyegon 10 years Kshs. 140,000/=

b) Benis Kimutai 13 years Kshs. 140,000/=

c) Victor Kiplangat Cheruiyot 15 years Kshs. 90,000/=

d) Betty Chebet 17 years Kshs. 70,000/=

e) Gilbert Kiprono Cheruiyot 19 years Kshs. 60,000/=

f) Mary Chelangat Rotich 25 years Kshs. 20,000/=

g) Priscila Chepkemoi Rotich Kshs. 50,000/=

570,000/=

============

10. These figures and ages was as of the year 2006. To add 3 years to the ages of the minor. I find that

From the 1st house.

Aron Kibet is still a minor

From the 2nd house

Benard Kipyegon and Denis Kimutai are still minors.

11. It is therefore imperative that the interest of the minors be looked into. This is where the sum of moneys due to them must be kept in an interest earning account until they attain the age of majority. To this end I herby order that a sum of Kshs. 200,000/= for Aron Kibet as agreed by the family and Denis Kimutai Kshs. 140,000/= be deposited in an interest earning account i.e. House No. 1 Kshs. 200,000/=

From House No. 2 Kshs. 280,000/=.

The balance of the sum due is released to the estate being

House No. 1 177,770/=

House No. 2 97,770/=

12. That the sum of moneys be deposited with the Barclays bank of Kenya at Kericho in an interest earning fixed deposit account in the name of the deputy registrar of the High Court of Kenya at Kericho and the two administratrix being a total sum of 480,000/=.

13. That the adminstratrix may have leave to apply to access the interest only on this sum by which the same is to be used for the upkeep of the minors. That the principal sum of 480,000/= is not to be touched until the minors attain the age of majority being 18 years respectively

(Aron Kibet, 200,000/=)

(Benard Kipyegon 140,000/=)

(Denis Kimutai 140,000/=)

14. I accordingly confirm the grant to include the above items.

15. The assets are shared equally amongst the two houses and will be held in trust by each widow and a son Charles Kipkorir Cheruiyot in the first house and a widow and son, Gilbert Kiprono Cheruiyot in the second house as chosen by the respective parties.

16. The costs will be in the estate

DATEDthis 19th day of May, 2009 at KERICHO

M.A. ANG’AWA

JUDGE

Advocates

C.K. Korir advocate instructed by the firm of M/S Korir & Co. advocates for the Petitioner/applicant – present