[2022] KEHC 9918 (KLR)

In re Estate of Ripongole Seronei Parutumei (Deceased) (Succession Cause 2 of 2017) [2022] KEHC 9918 (KLR) (13 July 2022) (Judgment)

Neutral citation: [2022] KEHC 9918 (KLR)

Republic of Kenya

In the High Court at Kapenguria

Succession Cause 2 of 2017

WK Korir, J

July 13, 2022

IN THE MATTER OF THE ESTATE OF RIPONGOLE SERONEI PARUTUMEI (DECEASED)

Between

Edward Losia Ripongole

Protestor

and

Stephen Cholongo Ripongole

Respondent

Judgment

1. In the ruling delivered by this Court (Ruth N. Sitati, J) on 26th September 2019, the Court at the behest of the Protestor, Edward Losia Ripongole, revoked the grant issued on 11th April, 2018 to the Respondent, Stephen Cholongo Ripongole, in respect to the estate of Ripongole Seronei Parutumei (hereinafter referred to as the deceased) and directed the issuance of a fresh grant to three administrators namely the Respondent, William Siwotum Ripongole, and the Protestor.

2. On 15th November, 2019, the Protestor filed summons for confirmation of grant to the Respondent and himself. The Protestor did not state on the face of the application the grant he wanted the Court to confirm. However, in the affidavit sworn in support of the application, the Protestor averred at paragraph 2 that “a grant of letters of administration of the said estate was made to us the petitioners on 26th of September, 2019. ” The Respondent likewise filed the chamber summons dated 27th November, 2019 seeking to confirm the grant of letters of administration issued to him on 11th April, 2018.

3. The orders issued by Sitati, J on 26th September, 2019 were as follows:“For the above two reasons, I hereby allow the protest and direct that the grant of letters of administration issued to the petitioner on 11. 4.2018 be and is hereby revoked. I now make the following final orders in this matter:-a.The grant of letters of administration issued to the petitioner herein, Stephen Cholongo Ripongole be and is hereby revoked.b.A fresh grant shall issue to the following:-i.Stephen Cholongo Ripongoleii.William Siwotum Rigpongole andiii.Edward Losia Ripongolec.Once the fresh grant is issued, the petitioners shall, within 45 days of issuance of the fresh grant file summons for confirmation of the same.d.If there is no agreement for (c) above, the parties shall file their respective modes of distribution for determination by the court.e.Each party shall bear its own costs.”

4. What the Court did on 26th September, 2019 was to allow the Protestor’s objection by revoking the grant issued to the Respondent on 11th April, 2018. Thereafter the Court directed the issuance of a new grant to Stephen Cholongo Ripongole (the Respondent), William Siwotum Ripongole, and Edward Losia Ripongole (the Protestor).

5. I have perused the Court file and find that a grant of letters of administration intestate of the estate of the deceased was issued to Stephen Cholongo Ripongole, William Siwotum Ripongole and Edward Losia Ripongole on 26th September, 2019. That is the grant to which these confirmation proceedings relate and I will proceed as such notwithstanding the fact that the Respondent seeks to confirm an already revoked grant. The Respondent’s affidavit sworn on 28th November, 2019 in support of his chamber summons dated 27th November, 2019 seeking that “the grant of letters of administration issued to the applicant Stephen Cholongo Ripongole on 11th April 2018 be confirmed” conveys his proposed mode of distribution of the estate of the deceased.

6. It is the Protestor’s case that the deceased did not distribute his estate amongst his wives prior to his death and therefore the estate should be divided equally between the surviving beneficiaries. During hearing, the Protestor testified as OW1 and adopted his written statement dated 8th June, 2021. He testified that he is a son to the deceased from the 5th house. He stated that the five wives of the deceased have passed away and it is only the children of the deceased who are the surviving beneficiaries. His testimony was that prior to his death in 2003, the deceased convened a family meeting of all his children where he showed them the title deed for his land Pokot/Kirenget A/178 measuring 60. 5 acres and told them that the land should be divided equally amongst his children. The Protestor further stated that all the children of the deceased attended the meeting and that the deceased did not leave a will.

7. The Protestor testified that the distribution proposed by the Respondent will mean that each house gets 12 acres. According to him, this will be prejudicial to some houses considering that all the houses do not have the same number of children. He stated that the 1st and 2nd houses have one son each, the 3rd house has one daughter, the 4th house has five daughters and one son whereas the 5th house has five sons and one daughter. His testimony was that although one of the five sons in their house was deceased, he had left behind a wife and children. The Protestor asserted that the deceased did not fix boundaries as alleged by the Respondent.

8. The Protestor further testified that on 5th October, 2019 they held a meeting as a family to discuss how to subdivide the land but they did not reach an agreement. He asked the Court to share the estate equally among the children of the deceased.

9. On cross-examination, the Protestor testified that after the meeting convened by the deceased in 2003, the deceased gave the title to the land to the Respondent for safekeeping. He also testified that the 3rd and 4th wives of the deceased attended the meeting as they were still alive. His evidence was that the farm owned by the deceased was cultivated by all the houses. The Protestor stated that the deceased had constructed houses for his wives in the order of their marriage. Further, that although all the wives cultivated the same site within the land, each wife had her livestock and that when the wives died each one of them was buried next to her house.

10. The Protestor additionally testified that the deceased did not demarcate the land to each house. The witness told the Court that the parcel he has been cultivating has since been taken away from him. Further, that his elder brother Jacob had constructed a house outside the portion allocated to their mother. It was the Protestor’s testimony that his brothers supported his case despite not recording statements.

11. On re-examination, the Protestor testified that their father was buried next to their mother’s grave in compliance with his request. He also stated that no survey has ever been done on the land so as to ascertain the specific acreage for each house. He further added that there were no boundaries on the land and that he had filed his complaint on behalf of his siblings.

12. On his part, the Respondent testified that the deceased demarcated his land and allocated each of the five houses an equal share of his estate prior to his demise. This is what informs his proposed mode of distribution where he suggests that each house be allocated an equal share of the estate irrespective of the number of children per house and that the children from each house can then agree on how to divide their share.

13. The Respondent called three witnesses in support of his case. He testified as RW1 and asked the Court to rely on his supporting affidavit and the further affidavit sworn earlier on 28th February, 2019 together with the minutes of the family meeting held on 5th October, 2019. He confirmed that the deceased indeed had five wives and that his mother who was the first wife was given the western part of the farm where she had her house, store, grazing land and cultivation parcel. Further, that the 2nd wife was also allocated her portion for grazing and cultivation, just as were the other wives, with the 5th wife occupying the eastern side. His testimony was that the boundaries were fixed using wires and no wife intruded into the land of the other. He also testified that one Nelson Lotodo, a son to the 5th wife, forcefully constructed a house on the portion of the 4th wife although he cultivates the portion of the 5th wife. RW1 also testified that no other son trespassed into the portions of the other houses and that they all lived as per their father’s wishes.

14. The Respondent testified that prior to the family meeting called by the deceased in 2003, he had accompanied the deceased to Kitale where they collected the title deed and he was asked to keep it. According to the Respondent, the deceased did not talk about the sharing of the land in that meeting as he had subdivided his land amongst his wives in the 1970s. He also testified that even though the deceased did not share his land equally, they agreed to share the land equally amongst all the houses as it was evident some portions were smaller than others.

15. On cross-examination, the Respondent testified that in his proposed mode of distribution each house would get 12. 1 acres. As for the first house the only child would get the entire portion and so would the only son of the 2nd house. In respect to the 3rd house he proposed that the son would get 11. 6 acres and the daughter would get 0. 5 acres. For the 4th house, he proposed that the son gets 11 acres and the five daughters to get a quarter of an acre each. As for the 5th house he proposed that all the six children receive an equal share of 2. 016 acres.

16. The Respondent testified that he did not know the size of the portion he occupies because no survey has ever been carried out. Further, that the deceased had shown the boundaries but never issued out title deeds despite the title deed for the whole parcel being acquired in 2002. He admitted that the fences dividing the portions were erected after this succession cause was filed. He also testified that the 5th wife, Christina Chepatet Ripongole, passed away in 2001 and therefore did not attend the meeting held in 2003 as he had earlier stated.

17. Upon examination by the Court, the Respondent testified that the deceased shared his land among his wives in the 1970s prior to the birth of the children from the 5th house. He offered to donate 2 acres of his share to the 5th house.

18. Elizabeth Chepkopus Teree who testified as RW2 told the Court that she belonged to the 4th house. She asked the Court to adopt her written statement dated 21st April, 2020 as her testimony. She added that the deceased had five wives and each one of them had their own portion of land, houses and livestock. She also stated that the houses were arranged from west to east with the 1st wife’s portion being to the west and the 5th wife’s to the east. Her testimony was that the portions were divided using trenches. The witness also stated that she attended the meeting convened by the deceased in 2003 and the deceased did not talk about subdivision of the land because the land had been divided earlier. She asked the Court to divide the land equally among the five houses.

19. On cross-examination, RW2 testified that she is a daughter-in-law to the deceased. She stated that the deceased did not discuss with them how he wanted his estate divided upon his demise. She further testified that all the houses except the children of the 5th house are agreeable with the Respondent’s proposed mode of distribution even though the sizes of the portions for the five houses are not known.

20. On examination by the Court, RW2 stated that her husband who was present in Court had informed her that they could not donate their land to the 5th house.

21. RW3 Esther Chemunung Ripongole asked the Court to adopt her statement dated 15th June, 2020 as evidence. She further testified that she is a daughter to the deceased. She confirmed the number of wives of the deceased and the arrangement of their houses as per the testimony of the Respondent and RW2. She also confirmed that the wives had their portions of land and that each wife was buried on her portion of the land. Further, that the children of the five wives have built in the portions of their mothers.

22. RW3 also testified that during the meeting convened by the deceased prior to his death, he presented the title deed and asked the Respondent to keep it but he did not talk about the mode of distribution of his estate. She asked the Court to distribute the estate as proposed by the Respondent.

23. On cross-examination, RW3 testified that the sons of the 5th house attended the meeting of 5th October, 2019 but did not agree with the proposed mode of distribution. She further testified that the deceased was buried on the 5th wife’s portion and that she did not know the size of that portion.

24. On re-examination, RW3 stated that the wives of the deceased respected the boundaries as fixed by the deceased and that is why they never trespassed on each other’s parcels of land.

25. The Protestor filed submissions dated 1st March, 2022. He stated that the deceased died intestate and the Respondent had not tendered any evidence in support of his allegation that the deceased had divided his estate equally among the five wives. The Protestor asked this Court to rely on sections 38, 41 and 42 of the Law of Succession Act in dealing with the estate of the deceased. The Protestor submitted that the proposed mode of distribution by the Respondent is unfair and unconstitutional because it leads to inequity in the division of the estate. In this regard, the Protestor relied on the cases of In the Matter of the Estate of Patrick Mungai Kugega (deceased), Nairobi Succession Cause No. 1374 of 2000; In the Matter of the Estate of Ellah Warue Nthawa (deceased) Nairobi Succession Cause No. 971 of 2001; and In the Matter of the Estate of M’Ngarithi M’iriti alias Paul M’Ngarithi M’Miriti (deceased)Succession Cause No. 108 of 2014 to submit that where the deceased is survived by children and not wives, then the estate ought to be divided equally among all the children.

26. The Protestor also relied on the case of Joyce Kabiti M’turuchu v David M’Ntiritu Kiambi [2016] eKLR to submit that the fact that one of the beneficiaries occupies a large portion of the deceased’s estate did not entitle such a beneficiary to a larger portion of the estate. The Protestor also relied on the case of Re Estate of John Musambayi Katumanga (deceased) [2014] eKLR, as cited inRe Estate ofM’mboroko M’rachi (deceased) [2018] eKLR, to submit that sections 35(5) and 38 of the Law of Succession Act require the estate to be divided equally and not equitably. The Protestor finally urged this Court to distribute the deceased’s estate equally among the children of the deceased.

27. The Respondent filed submissions dated 31st January, 2022. It is submitted that the boundaries for the portions of the five houses have been in place for over three decades and should be confirmed by this Court. He also submitted that if the Protestor had an issue with the subdivision then he should have raised the issue prior to the deceased’s demise.

28. Another submission made by the Respondent was that four of the five houses are not complaining about his proposed mode of distribution and therefore the Court should confirm the distribution. The Respondent urged this Court to apply sections 40 and 41 of the Law of Succession Act and find that the deceased estate should be first be divided equally among the five houses before the net residue is held in trust. In support of his submissions, the Respondent relied on the case of Reuben Rukwaro Mwangi & Another v Mary Nyawira Mwangi & another, Succession Cause No. 1238 of 2018 to urge this Court to distribute the estate of the deceased equally among the five houses.

29. Before I delve into the analysis and determination of this matter, I will refer to the report dated 8th July, 2021 filed by the Deputy Registrar (DR) after visiting the site as ordered by the Court. The report shows that the visit was made in the presence of Ms. Opondo for the Protestor, Mr. Nyakundi for the Respondent and a village elder called Mr. James Lemureng. The report confirms that the deceased died intestate and left fives houses. The 1st to 4th houses reported that the deceased had allocated land to each of his wives. The DR observed that the distribution was not proportional to the number of children in each house as some houses had larger parcels and others had smaller parcels. Further, that upon the filing of this matter, some of the beneficiaries fenced off their parcels of land to block any claims from the beneficiaries who felt prejudiced. The DR also noted that some of the beneficiaries including the Protestor had sold the land close to the road. The DR concluded that before the deceased passed away he had pointed to each house where to live and cultivate. The beneficiaries are also listed in the report.

30. The only issue for the action of this Court in this matter is to determine the shares of the beneficiaries of the estate of the deceased. The question as to whether the deceased distributed his estate before he died will also come into focus.

31. From the evidence on record, it is not contested that the deceased had five wives. It is also common ground among the parties that the deceased died intestate.

32. The main contestation is whether the deceased established boundaries that conveyed his wishes on how his estate was to be devolved upon his demise. The gist of the Protestor’s case is that the deceased did not share his estate among his wives prior to his death and his estate should therefore be divided equally amongst his surviving beneficiaries. His evidence is that when the deceased convened a family meeting in 2003, he showed them the title deed of the family land and expressed his wish that the land be divided equally amongst his children. The Respondent on the other hand testified that the deceased demarcated his land and allocated each of the five houses an equal share.

33. There is no dispute regarding the evidence adduced by the Respondent and his witnesses that the deceased constructed houses for his five wives in the order of their marriage. The number of children of each house is also not in dispute. From the undisputed evidence of the Respondent and his witnesses, it is apparent that the deceased had through action expressed how he wanted his home, where he lived with his five wives, organized.

34. The evidence on record further reveals that the deceased did not partition his estate equally amongst his wives. The Respondent acknowledges this fact and proposes to have the land divided equally amongst the five wives. He further urges this Court to rely on sections 40 and 41 of the Law of Succession Act and find that the deceased’s estate should first be divided equally among the five houses. The Protestor on his part argue that the estate ought to be divided equally among all the children since all the wives of the deceased have passed away.

35. The evidence adduced in this case leads me to the conclusion that the deceased had allocated his wives portions of the land. He demarcated the portion to be occupied by each house. Even though the deceased did not call a surveyor to carry out the formal process of sub-division, his intentions were manifestly clear. The Protestor does not dispute that the deceased made such arrangements during his lifetime. He instead relies on his unsupported evidence that the deceased had in the family meeting held in 2003 indicated his wish to have the land divided equally among his children. The Protestor has however not told the Court what stopped the deceased from implementing his wish.

36. The Respondent urged this Court to apply sections 40 and 41 of the Law of Succession Act and share out the land equally among the five houses. The parties are in agreement that the demarcations carried out by the deceased resulted in unequal shares for the five houses. The specifics of the inequalities were not provided since the parties agreed that the parcel of land has not been surveyed. It is not even indicated which houses have bigger shares and which ones have smaller shares.

37. Much as the advocates placed emphasis on the provisions of sections 40 and 41 of the Law of Succession Act, they overlooked the provisions of sections 32 and 33 of the same Act which excludes the estate of the deceased from the provisions of Part V of the Act. Section 33 is clear that the distribution of the agricultural land, crops and livestock of the deceased shall be in accordance to the law or custom applicable to his community or tribe. In this case, the applicable law would be the customary law of the Pokot.

38. At page 133 of Chapter Fifteen of the book titled Law of Succession: Kenya (Restatement of African Law) published by the School of Oriental & African Studies in 1969, Eugene Cotran writes on the general principles of succession and the distribution of the estate of a deceased Pokot or Suk as follows:“Inheritance under Pokot law is patrilineal. The pattern of inheritance, whether in a monogamous or a polygamous household, is based on the equal distribution of a man’s property among his sons, subject to the proviso that the eldest son of the first wife receives a larger share. Widows have a right of use during their lifetime of property given them by the husband during his lifetime. Daughters are entitled to a very small share (one cow) on their marriage. In the absence of sons, the heirs are the nearest patrilineal relatives of the deceased, namely father, full brothers, half-brothers, and paternal uncles.The institution of making a will is recognized by the Pokot, although such a will must not depart from the general pattern of inheritance. Property may also be-and normally is-distributed during the father’s lifetime to the heirs as they get married.”

39. On inheritance of land, the author at page 137 writes on the law applicable to the estate of a married Pokot man with two or more wives as follows:“(a)Land. The Panel recommended:-i.that each house should retain the land allocated to it by the husband, the rules of division in it being as in 1(a) above; andii.that land not allocated to any house should be divided equally among all sons.”

40. The 1(a) referred to is at page 136 where in regard to the estate of a married man with one wife, the writer states that:“(a)Land. This was not regarded as inheritable property in the past since the Pokot were pastoral and had not evolved any land laws. It is considered desirable, however, that rules regulating the inheritance of land should be formulated, especially now that many Pokot are settled agriculturalists. The Law Panel recommended the application of the following general principles:-(i)the land should be shared by the deceased’s sons in equal shares;(ii)the widow should not get any specific portion, but should be entitled to cultivate some of the youngest son’s portion until her death; moreover she should be allowed to retain during her lifetime any portion given to her by her husband during his lifetime; and(iii)daughters should receive no share.”

41. Adopting the patrilineal way of distributing the estate of the deceased as per Pokot customary law is discriminatory in that the custom overlooks the right of women to inherit from the estates of their fathers. This offends Article 27 of the Constitution which provides for the right to equality and freedom from discrimination. Eugene Cotran, however, support the position of the Respondent that the deceased distributed his estate prior to his death. In the case at hand, the deceased had shared out his property during his lifetime. From how the deceased arranged his homestead, it is clear that he wanted each house to have an equal share of his land. There is no reason to depart from his wish. Each house will therefore have an equal share of the land of the deceased. There is no evidence that the deceased left any other property.

42. Although the members of the 1st to 4th houses have clearly stated how they propose to share their portions, it is clear from the pleadings that the parcel of land left by the deceased has not been surveyed. In order for an executable certificate of confirmation of grant to issue, the parties must first carry out a survey of the land. In the circumstances, the administrators are given ninety (90) days from the date of this decision within which to subdivide L.R. No. West Pokot/Keringet ‘A’/178 into five (5) equal portions with each of the five houses getting one portion. Thereafter, the members of each house shall agree amongst themselves on how to share their portion and where there is no agreement, the land shall be shared equally amongst members of the particular house. The administrators will at the conclusion of the exercise file a joint affidavit stating the share of each beneficiary as agreed by the members of house to which the beneficiary belongs.

43. On the issue of costs, I have considered the fact that the dispute involves members of one family and direct the parties to meet their own costs of the proceedings.

DATED, SIGNED AND DELIVERED AT KAPENGURIA THIS 13THDAY OF JULY, 2022. W. KORIR,JUDGE OF THE HIGH COURT