[2023] KEHC 26683 (KLR)

In re Estate of Stanley Kesusu Kimwei (Deceased) (Succession Cause 86 of 2014) [2023] KEHC 26683 (KLR) (14 December 2023) (Judgment)

Neutral citation: [2023] KEHC 26683 (KLR)

Republic of Kenya

In the High Court at Kericho

Succession Cause 86 of 2014

JK Sergon, J

December 14, 2023

Between

Weldon Koech

Protestor

and

Caliph Kiptanui Koech

1st Petitioner

Charles Kiprotich Koech

2nd Petitioner

Bernard Koech

3rd Petitioner

Judgment

1. The gist of the instant succession cause is the distribution of the estate of the late Stanley Kesusu Kimwei the deceased herein, he died on and was survived by three (3) widows and several children. This court issued a grant of letters of administration intestate on 17th July, 2015 to Caliph Kiptanui Koech, Charles Kiprotich Koech and Bernard Koech the petitioners herein.

2. The petitioners filed summons for confirmation of grant and an affidavit in support of confirmation of grant of administration intestate dated 24th August, 2018 and with a schedule of distribution of the assets of the estate of the deceased. The summons for confirmation of grant were accompanied by a consent to the confirmation of grant dated 23rd August, 2018 that was executed by all the beneficiaries to the estate with the exception of Weldon Kipkorir the protestor herein.

3. The protestor filed an affidavit of protest against confirmation of grant dated 12th October, 2018 contesting the schedule of distribution of the estate of the deceased on the following grounds that some beneficiaries were left out and that some properties were not included as part of the estate of the deceased. The protestor proposed his preferred mode of distribution. The court directed that the matter proceeds by way of viva voce evidence.

4. The objector called six witnesses in support of his case.

5. Weldon Kipkorir (Ow. 1) stated that the deceased was his father, his mother was the 1st wife, the deceased herein had three wives. He stated that his mother had died and his two step mothers were alive, he recalls that he wrote a statement on 9th May, 2022 and adopted it as his evidence-in-chief. On cross examination, he stated that he was the objector in the matter, he did not like the way the administrators sub-divided the property, Rachel and Sarah Koech signed under duress, that there are properties that the administrators did not include in the succession cause to wit the following titles Kipkelion or Sachangwan or Kericho/Manaret 161 and further that some beneficiaries to wit Hilda Koech, Eunice Cherotich and Lucy were left out. On reexamination he stated that Kericho/Manaret/161 is in the name of Marusoi and that his father was negotiating to buy it and further that the beneficiaries had not followed up on that property. He also stated that the deceased was in a partnership and under the said partnership owned some commercial plots in Chemosot, but they did not have the title for the said plots. He stated that Kericho/Mararet/422 was in the name of their father and should therefore go to the 1st house. He confirmed that their father did not leave a will, he died intestate and did not transfer any of his properties to his wife. He also stated that he stays at Kericho/Ketargwet/183 and that the father did not transfer the title to his mother. He stated that their elder brother Hezekiah was given plot 62 at Simbi/Manaret and he stays there.

6. Eunice Cherotich (Ow. 2) stated that she is a daughter to the first widow and unmarried, she urged the court to share the estate of the deceased equally, she wants to stay in the property of her father. She stated that she would adopt her witness statement as her evidence-in-chief. On cross examination she stated that the family did not have meetings to deliberate on how the property of the deceased was to be shared, they wanted the property to be shared equally, the administrators made them sign blank papers and they were asked to sign as they were children to the deceased. She stated that she was given a small piece of land. She stated that she stays on Kericho/Kabargwet/308 and has been living there since 2012. She stated that she did not file a protest in the instant succession cause. On reexamination she stated that Weldon Koech filed the protest and they wrote statements in support of the protest.

7. Jane Chesang (Ow. 3) a married daughter to the deceased adopted her statement as evidence-in-chief. On cross examination, she stated that she was not given the list of distribution, rather she was forced to sign the petition and told that it was a list of names. She confirmed that she told Weldon to file a protest on their behalf. On reexamination she confirmed that she wanted the estate to be distributed equally among all the beneficiaries and that where she was married there was no land.

8. Recho Chepkemoi (Ow. 4) is a daughter-in-law to the deceased, her husband was called Hezekieh Kipyegon, she adopted her statement as the evidence-in-chief. On cross examination she stated that she has been staying at Manaret since the demise of her husband, the land was registered in the name of her father in law. Hezekiah paid for the land and subsequently the father gave it to them, he settled them on the said land parcel. On reexamination she stated that her husband paid for the Maneret land in installments, however, title to the land was still under the name of her father in law. She confirmed that the land was initially 42 acres and 10 acres were subsequently sold. She confirmed that the deceased herein did not leave a will.

9. Alice Cherotich Birir (Ow. 6) adopted her statement as evidence in chief. On cross examination she stated that her husband David Koech died in 1996. She stated that they got married under Kipsigis customary law in 1983. She stated that when David died they were staying together and she attended his funeral. She confirmed that she did not have children with her husband. She stated that soon after the funeral in 1996-97 thereabouts, she was given a shamba by her father-in-law now deceased and he showed her where to settle, however, she was chased away. She stated that she does not know where her husband was buried and that she did succession for her husband in 2012. On reexamination she maintained that she was married under Kipsigis customary law and dowry was paid. She stated that the dowry was not returned and neither did David file a divorce cause. She stated that she was in support of the protest filed by Weldon, she was seeking to have the share of the property that her deceased husband would have inherited.

10. The petitioner called six (6) witnesses in support of his case.

11. Kiptanui Caliph Koech (Dw.1) is the deceased’s son, he is also the administrator of the estate, he adopted the contents of his witness statement dated 8th November, 2021 and adopted the same as the evidence -in- chief. He stated that there was a dispute over the distribution of the estate and that Weldon Koech filed a protest rejecting the mode of distribution. He also stated that the deceased had given each member a portion of land as shown in the schedule of distribution. He stated that Kericho/Manaret/161 is not part of the estate of the Stanley Kesusu (deceased herein), it belonged to Johana Cheruiyot Narusoi and produced the official search as DExh. 1 and therefore should be excluded from distribution. He stated that upon the death of the deceased, they approached the chief to introduce the beneficiaries and produced the chief’s letter dated 15th November, 2011 as DExh. 2. He stated that the deceased distributed his estate but did not give any portion to his daughters. He was praying to have the grant confirmed. On cross examination Dw. 1 confirmed that his father settled everyone on his land, the portions were not equal and he did not give any portion to the daughters. He also confirmed that Alice was the wife of David, his brother and that she was not listed as a beneficiary or dependent of the estate in the chief's letter. He also confirmed that Kericho/Manaret/161 belongs to Johanne Cheruiyot; the deceased attempted to purchase the said property but the title was not transferred. On re-examination, he stated that Alice did not bear any children with his late brother.

12. Hilda Koech (Dw. 2) adopted her witness statement dated 29th November, 2021 as her evidence-in-chief, she stated that she was not claiming anything from the estate as she was a married woman, she respects the petitioner’s mode of distribution. On cross examination, she stated that her father settled each house in their respective portions and that she and her sisters were not given any portion of her father's estate. She confirmed that Alice Birir was her stepbrother's wife (widow). On re-examination she stated that her younger brother Pw. 1 gave land to Eunice, her sister and confirmed that Alice Birir was not depending on the estate of the deceased.

13. Saraf Kesusu (Dw. 3) stated that she was aware that she had been summoned to come to court to testify in respect of her husband's estate, she adopted her witness statement as evidence-in-chief. On cross examination she confirmed that the deceased had merely settled each home in its own farm, the portions were not equal. She confirmed that Alice Birir was the wife to her son who passed away, she further confirmed that her husband did not give any land to his daughters and on the schedule of distribution the daughters were not given a portion. On re-examination she confirmed that Alice left the matrimonial home.

14. Erick Kiprono Koech (Dw. 4) stated that he executed a witness statement dated 29th November, 2021 and adopted it as his evidence-in-chief. He further stated that the family held a series of meetings on 23rd July, 2005 and 3rd September, 2005 and deliberated on the estate of their late father. He was the secretary of the said meetings, and was in possession of the minutes which he produced as DExh. 3 and DExh. 5 respectively. He stated that Alice had separated with his late brother before his father passed on, she was not present during the burial of his late brother. He stated that the estate was distributed in accordance with the way their father had settled each homestead. On cross examination he confirmed that his deceased father did not leave a will, the family meetings just confirmed how their father distributed his property and in the said meetings they did not discuss whether their sisters were interested in their father's estate. He confirmed that their father did not transfer titles; rather he settled each homestead in a separate portion. He also confirmed that Alice was married under Kipsigis customary law. On re-examination he confirmed that each house settled in their respective portion.

15. Sarah Chelangat Koech (Dw. 5) stated that the deceased was her father-in-law, she executed a witness statement and adopted it as her evidence-in-chief, she confirmed that they were settled on the land given to them by her father-in-law, she has title to her land and therefore has no claim against the estate of the deceased. On cross examination, she confirmed that she attended several family meetings in which it was agreed that each family should settle in the respective portions given by the deceased. She was not aware if Alice was given any land.

16. Grace Chemutai Kesusu (Dw.6) she stated that she executed a witness statement and adopted it as her evidence-in-chief, she was married to the late Stanley Kesusu Kimwei, she confirmed that her late husband, the deceased herein had distributed his land and that everyone is living on their respective portions. She stated that Alice did not receive a share in the estate of the deceased. She urged the court to distribute the estate according to the wishes of the deceased who had settled each house prior to his demise. She stated that David had predeceased the deceased herein. Alice did not attend the burial. On cross examination, she confirmed that the deceased had purchased all parcels of land which he bequeathed to his family. She confirmed that Alice had separated with David Koech, however, she was not aware if the dowry was returned. The deceased gave land to one of his daughters Josephine Cherotich, settled each of his wives in their respective portions with strict instructions that each house should not enter or claim the land belonging to another house. On re-examination she confirmed that Hezekiah Koech is the deceased's first born son and he was given land by the deceased.

17. The court directed the protestor and the petitioners to file submissions. The petitioners complied and filed their submissions whereas the protestor did not file any submissions.

18. The petitioners maintained that the deceased had distributed his properties to all three households and each house had settled in their respective land. The petitioners maintained that their proposed mode of distribution was as per the wishes of the deceased.

19. The petitioners contended that they did not leave out beneficiaries as alleged by the protestor, they submitted that Sarah Chelangat Koech had testified in support of the petitioners’ case that her husband Hezekiah Koech was given separate land by the deceased, he subsequently acquired title to the said land and bequeathed it to both his co-wives Sarah Chelangat Koech and Rachel Koech prior to his demise and that of her father-in-law.

20. The petitioners objected to the inclusion of Alice Koech/Alice Cherotich Birir as a beneficiary to the estate they maintain that she had cohabited with the deceased’s son David Koech, however, their union was short lived as they parted ways soon thereafter. It was not disputed that their union was not blessed with any child. She testified that she left the homestead and did not prove that at the time of the demise of the deceased herein, she was depending on the estate. The petitioners were relying on the chief’s letter and she was not included as a beneficiary to the estate.

21. The petitioners faulted the protestor for introducing additional properties as part of the estate of the deceased, these included Kericho/Maneret/161, shares at new KCC, cattle, Chemosot Plot No. 12 and a plot in Sachangwan and failed to demonstrate the existence of these alleged properties.

22. The petitioners contended the protestors proposal that Kericho/Garterwet/153, Kericho/Manaret/442 and Mau Summit/Sachangwan Block 10/177 should be shared by the children of the first house, having been acquired by the deceased with the support of the first wife. The petitioners submitted that the houses were residing in their respective portions of land and had carried out various developments in their respective portions.

23. I have considered the pleadings, viva voce evidence and submissions that are on record. I find that the sole issue for determination by this court is the distribution of the deceased’s property.

24. I duly considered the petitioners case and the protestors case and I find the deceased herein had distributed his property prior to his demise, shares included he settled the houses on their respective parcels and based on the minuted resolutions of the family meetings held on 23rd July, 2005 and 3rd September, 2005, it was resolved that the houses are to remain in their respective parcels of land as per the wishes of the deceased and also that the needs of the widows and the unmarried daughters of the would be taken care of in their respective houses which explains why the daughters of the deceased were precluded from inheriting the estate of the deceased. Dw. 2 confirmed that she and her sisters were not given portions of her father’s estate and that she respected the petitioners’ mode of distribution. I find that the schedule of distribution in the summons for confirmation of grant is in tandem with the wishes of the deceased and mutual agreement as evidenced by the resolutions in the family meetings.

25. I have considered the protestor’s assertions that some beneficiaries were left out to wit Hezekiah a son to the deceased, it was testified on his behalf by Dw.5 that the deceased prior to his demise bequeathed him a piece of land elsewhere and that he and his two wives had settled there and therefore had no claim to the estate of the deceased. Alice Birir was also claiming share in the estate of the deceased, she was the wife to David Koech a son to the late Stanley Kesusu Kimwei, who had predeceased him, several witnesses conceded that the two cohabited as man and wife, however, they parted ways and she left her matrimonial home and did not even attend the funeral of David Koech. I find that she is not a beneficiary, she did not demonstrate to this court that she was a dependent of the deceased and was being maintained by the deceased prior to his demise.

26. I have taken note of the properties the protestor claims were excluded yet they formed part of the estate of the deceased, I find that he failed to furnish this court with proof that these properties belonged to the deceased.

27. Accordingly, I find that the protest dated 12th October, 2018 lacks in merit. The Protest is dismissed. The summons for confirmation of grant dated 24th August, 2018 is allowed and distribution of the Estate be as per the schedule of distribution set out in the Affidavit jointly sworn by Caliph Kiptanui Koech, Charles Kiprotich Koech and Bernard Koech and filed in support of the Summons for Confirmation of Grant. Each party to bear their own costs.

DELIVERED, SIGNED AND DATED AT KERICHO THIS 14TH DAY DECEMBER 2023. ..................................J.K. SERGONJUDGEIn the presence of:-C/Assistant – RutohLaboso for the PetitionerNo Appearance for the Protestor