[2022] KEHC 14031 (KLR)

In re Estate of Tabutany Chepngeno Maina (Deceased) (Succession Cause 48 of 2014) [2022] KEHC 14031 (KLR) (7 October 2022) (Judgment)

Neutral citation: [2022] KEHC 14031 (KLR)

Republic of Kenya

In the High Court at Kericho

Succession Cause 48 of 2014

AN Ongeri, J

October 7, 2022

IN THE MATTER OF THE ESTATE OF THE LATE TABUTANY CHEPNGENO MAINA (DECEASED)

Between

Simon Kipkemoi Maritim

Objector

and

Elizabeth Chepkorir Maina

Petitioner

Judgment

1. The objector in this case, Simon Kipkemoi Maritim filed a protest dated 29/9/2017 against the confirmation of grant issued to Elizabeth Chepkorir in the Estate of Tabutany Chepngeno Maina

2. The deceased Tabutany Chepngeno Maina died intestate on 4/3/2004 leaving the Petitioner who alleged to be her wife married under the Woman to Woman Kipsigis Customary Law.

3. The Protestor Simon Maritim stated as follows in Affidavit of Protest dated 29/9/2017:-(i)That the deceased Tabutany maina was the wife to the late Kanga maina and co-wife to Taplelei maina as the first wife and Leah Chepsotin maina as the third wife;(ii)That Cheruiyot Arap Maina was the original owner of the estate of the deceased before registration which was not changed to his name after buying the piece of land from Arap Maina;(iii)That the parcel of land was registered without the consent of Leah Chepsotin Maina in the name of Taputany Maina the 2nd wife, who was to hold it in trust for all the beneficiaries of the 2nd and 3rd houses;(iv)That he is the grandson to Leah Chepsotin maina who was the 3rd wife of Kanga Maina, and they lived in the estate of the deceased as they were beneficiaries by virtue of being the grandson to the original owner, Kanga Maina;(v)That the administrator was married to Tabutany Maina, the deceased, and has misled the court by concealing the fact that the deceased held the property Kericho/Kabianga/1716 in trust for all the beneficiaries of Kanga Maina;(vi)That the 1st wife, Sigilai Maina, deceased, was settled at Chebroge, in Bureti Sub-County with her children;(vii)That in 2010, he instituted a case at the lands dispute tribunal being claim no. 68/2010 wherein the tribunal held that he had a share of 2 acres in parcel no. Kericho/Kabianga/1716;(viii)That the decision of the proceedings was adopted by the Chief Magistrate court at Kericho Misc App 91/2010; and(ix)That the subdivision proposed by the administrator does not reflect a true and fair distribution.

4. The Protestor’s evidence in summary was that he is the grandson of the Co-Wife to Tabutany Chepngeno Maina (The Deceased herein).

5. The Protestor further said that the Deceased herein was the 2nd wife of Kanga Maina (Deceased and Co-Wife to Taplelei Maina (first Wife) and Leah Chepsotin Maina (3rd Wife and grandmother to the Petitioner).

6. The Protestor also testified that the deceased herein Tabutany Chepngeno Maina held the property known as Kericho/Kabianga/1716 hereafter referred to as the suit property as a trustee.

7. He said the property was initially owned by Cheruiyot Arap Maina (deceased) and it was registered in the name of the deceased herein as a trustee for all the beneficiaries of the Estate of Kanga Maina (deceased).

8. The Protestor said in Paragraph 10 of his Affidavit of protest the Land Tribunal in Claim No.68 of 2010 gave a verdict that the suit property be divided as follows:-(i)Elizabeth Chepkorir Maina - 1 Acre(ii)John Chepkwony David Kiplangat - 1. 175 Acres(iii)Chepkwony David Kiplangat - 1. 73 Acres(iv)Simon Maritim - 2 Acres(v)Charles Kiprono Chepkwony - 1. 175 Acres(vi)Benard Kipkemoi Chepkwony - 1. 175 Acres(vii)Geoffrey Kiptonui Chepkwony - 1. 175 Acres(viii)Fredrick Kiprotich Chepkwony - 1. 175 Acres(ix)Dennis Kipkirui Chepkwony - 1. 175 Acres

9. The Petitioner filed a Replying Affidavit to the Protest dated 8/5/2018 in which she deposed as follows:-(i)That the protestor has not come to court with clean hands, as he has misled the court by alleging that he is a beneficiary in the subject estate, whereas he is a total stranger and not a grandson to her alleged co-wife as alleged in paragraph 3 of the affidavit of protest;(ii)That the deceased, Tabutany Chepngeno Maina, was her husband, and she was the only legal wife married to her in a woman to woman marriage under Kipsigis customary law;(iii)That the deceased before marrying her, was married to one Kanga Maina, who is now deceased, and the said Kanga Maina was married to two wives, the deceased herein and one Obot Kimetet;(iv)That all along she has been the one occupying the subject estate herein, whereas the said co-wife of the deceased had been settled in a separate parcel of land at Cheborge;(v)That her and the deceased herein were blessed with nine issues, namely:(a)Nancy Chebii;(b)John Chepkwony;(c)Charles Kiprono Chepkwony;(d)Bernard Kipkemoi Chepkwony;(e)Geoffery Kiptonui Chepkwony;(f)Fredrick Kiprotich Chepkwony;(g)Mercy Chelangat; and(h)Dennis Kipkurui Chepkwony(vi)That the protestor herein is a stranger to the estate and at no point in time has the protestor been in occupation of LR. No. Kericho/ Kabianga/1716, and the allegations that Kanga Maina was allegedly married to three wives are untrue;(vii)That the deceased herein was the legal registered owner of LR. No. Kericho/Kabianga/1716 and was not holding it in trust for other beneficiaries as alleged by the protestor; and(viii)That the protestor’s affidavit in protest is therefore misplaced, unfounded in law, and an abuse of court process, lacks merit and ought to be dismissed.

10. The case proceeded by way of viva voce evidence. The witnesses relied on their respective affidavits and written witness statements as follows:-It was the objector’s evidence that he is the grandson to kanga Maina and Leah Chepsotin, and the land in dispute LR No. Kericho/Kabianga/1716 was owned by Kanga Maina and his wives Leah Chepsotin and Tabutany Maina, although the said parcel of land was registered under the name of Tabutany Maina.

11. The objector stated that his grandfather demarcated the subject parcel of land and gave part of it to Leah Chepsotin, where they lived until his grandmother and mother passed on. It was his evidence that Tabutany Maina who had been away for over 15 years during the subsistence of the marriage to Kanga Maina did not bare children and she thereafter married Elizabeth Maina in a woman to woman marriage in accordance with the Kipsigis customs.

12. It was the objector’s evidence that due to hostility, they were forced to relocate to their father’s home in Mombwo, and before Tabutany passed on in the year 2004, she sent Weldon Kimeto to call him regarding the parcel of land that belonged to Leah Chepsotin, and the same was also echoed during her burial.

13. He stated that Weldon Kimeto has since denied that he was sent by Tabutany Maina, however the then chief Mr. J Terer was present during the burial and even visited the parcel of land to see that his grandmother’s wishes were fulfilled. He stated that he occupied the parcel of land known as LR No. Kericho/Kabianga/1716 for over five years, and he decided to sell it after purchasing another parcel of land in Olenguruoine.

14. It was his evidence that he sold the 2 acres subject parcel of land to Philip Langat with the knowledge of Elizabeth Maina and her two sons John Chepkwony and Charles Chepkwony, who signed the agreement for sale together with a village elder.

15. He stated that he allowed Philip Langat access to the land after he paid half of the required amount, and that hostility arose after sometime when Elizabeth Maina’s children raised an objection as to the size of the land sold to Philip, stating that the parcel looked larger than it ought to have been. He stated that they visited the chief’s office in Kabianga, and Mr. J Terer explained to them that his mother, Taplelei is a beneficiary and had to be included in the succession.

16. He stated that when the family of Elizabeth Maina failed to agree with the chief’s decision on the matter, he and Philip took the matter to the Land Dispute Tribunal who ruled in his favour, and they thereafter took the report from the Land Dispute Tribunal to the high court who ruled that succession be done and the beneficiaries to include: (a) Kimetet Cheruiyot- representing the family of the 1st wife;(b)Elizabeth Maina- Representing the family of the 2nd wife; and(c)Simon Maritim- representing the family of the 3rd wife, in the ration of 1:4:1 from the first family to the last respectively. It was stated by the protestor that in 2016, the wife to Tabutany Maina did succession and a land surveyor subdivided the land without his knowledge, and he therefore protests the subdivision proposed by the administrator as it does not reflect a true and fair distribution.

17. The petitioner on the other hand stated that the subject parcel of land known as Kericho/Kabianga/1716 belongs to Tabutany Chepngeno Maina as the registered owner, and that the late Tabutany Chepngeno Maina was married to her as the only wife.

18. It was the petitioner’s evidence that the late Tabutany Maina was not blessed with any children and she married the protestor in a woman to woman marriage in accordance to Kipsigis Customary Law so as to sire sons for her. She stated that she was able to sire nine children, being seven sons and two daughters.

19. The petitioner stated that the parcel of land Kericho/Kabianga/1716 was ancestral land to Tabutany Maina and it was registered in her name. She stated that the co-wife to Tabutany Maina has her own land registered in her name and they are living in Cheborgei in a separate piece of land.

20. It was the petitioner’s evidence that the husband to Tabutany Maina was married to two wives only and both wives have their separate parcels of land registered in their own names. She further stated that the husband to the late Tabutany Maina and her co wife never married a 3rd wife, and that Leah Chepsotin is a stranger to the family.

21. The petitioner stated that her husband, Tabutany Maina did not hold in trust any parcel of land and that she owned the land absolutely as the registered owner, and further that they have been in occupation of the said land for more than fourty years, and at no point did any one claim to have an interest in the land.

22. It was her evidence that Leah Chepsotin, grandmother to Simon Maritim, the protestor herein, is married in Longisa, Bomet County and that at no time did Simon Maritim claim the land from her husband when she was alive and only appeared after her death.

23. The parties filed written submissions which are as follows:-The objector submitted that he was not accorded his right to participate in the succession proceedings as per the provisions of the law of Succession and that section 26 of the Probate and administration rules was flouted in full as the objector was neither served nor notified of the confirmation of grant; and further, that the petitioner went ahead to make false statements and concealing the fact that the deceased held the property Kericho/Kabianga/1716 in trust for all the beneficiaries of Kanga Maina (deceased). It was also submitted that the petitioner indicated herself and her children as the only beneficiaries of the estate and left out the objector as a beneficiary, and this amounts to non-disclosure of material facts

24. The objector submitted that the grant of letters of administration was based on untrue allegations and the court cannot withstand a legal instrument in the form of grant which is tainted with illegality, and the confirmed grant should therefore be revoked.

25. It was further submitted by the objector that he was a beneficiary of the estate of the deceased, as his grandmother had contributed in buying the land owned by the deceased Kanga arap maina, and that it was echoed during the burial of Tabutany Maina that the parcel of land belonged to Leah Chepsotin.

26. The petitioner submitted that the objector has not provided tangible evidence in court that he was either the child of the deceased herein, Tabutany Maina, or was being maintained by the deceased, hence he does not meet the threshold as provided for under section 29 of the Laws of Succession and thus does not qualify as a dependent or beneficiary of the deceased estate.

27. It was also submitted by the petitioner that whereas the objector has stated that the subject matter herein was jointly owned by his grandmother Leah Chepsotin (deceased) and Tabutany Chepngeno Maina (deceased), he has neither provided any documentation to support his case nor was any testimony brought forth to corroborate his allegations as required by section 107 of the evidence act.

28. The petitioner also submitted that if indeed the parcel of land Kericho/Kabianga/1716 was held in trust on behalf of Leah Chepsotin, the law requires that the said trust should be indicated in the title register. It was submitted that no trust was registered in the title register, a clear indication that the issue of trust alleged by the objector is a mere allegation and an afterthought set to deprive the rightful beneficiaries from enjoying the estate of her deceased husband Tabutany Maina.

29. The petitioner submitted that the land dispute tribunal did not have the locus standi to deliberate on the property of Tabutany Chepngeno Maina (deceased), whose jurisdiction lies with the probate and administration court hence the finding of the tribunal is unlawful and contravenes the provisions of the Law of Succession Act.

30. The issues for determination in this protest are as follows:-(i)Whether the deceased held the suit property as a trustee.(ii)Whether the protestor is entitled to a share of the said property.

31. The Protestor’s case was that the suit property initially belonged to one Cheruiyot Arap Maina. He said in his Affidavit of Protest that the deceased herein Tabutany Chepngeno Maina was a Co-Wife to his grandmother one Leah Chepsotin (Deceased) and that the deceased herein was registered as a trustee to hold the suit property for all the beneficiaries of the Estate of his grandfather Kanga Maina (Deceased).

32. The law requires that he who alleges a fact is under a duty to prove the same. This provision is enshrined in the Evidence Act under section 107 (1) as follows:- “Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.”

33. Section 109 of the Evidence Act, further stipulates that:- “The burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person.”

34. In Evans Nyakwana v Cleophas Bwana Ongaro [2015] eKLR, it was stated that: - “As a general proposition the legal burden of proof lies upon the party who invokes the aid of the law and substantially asserts the affirmative of the issue. That is the purport of section 107(1) of the Evidence Act (Chapter 80 of the Laws of Kenya), which provides: 107(1) Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.”

35. In Kivui v Nzau (civil Appeal 110 Of 2018) [2021] KEHC 256 (KLR), the high court stated as follows: - “It is trite law that the legal burden of proof lies with the person who alleges. Section 107 (1) of the Evidence Act, Cap 80 Laws of Kenya provides that:-Whoever desires any court to give judgment as to any legal right or liability dependant on the existence of facts which he asserts must prove that those facts exist. Once the Plaintiff discharges the legal burden of proof, the burden is then shifted to the Defendant to adduce evidence against the Plaintiff’s claims. This burden is well captured under Sections 109 and 112 of the same Act.”

36. Regarding the issue raised by the objector that the subject parcel of land Kericho/Kabianga/1716 was being held in trust by Tabitany Maina (deceased) on behalf of all the beneficiaries of Kanga Maina, I find that this being a probate court, it does not have the jurisdiction to deal with disputes related to land and declaration of trusts, and the determination of the same should be left to the Environment and Land Court.

37. In Re Estate Of Kanyeki Kimatu (deceased) [2020] eKLR, the court held as follows:- “I am in agreement with the aforementioned persuasive decisions and add that this court, whether sitting as a probate or appellate court does not have the jurisdiction of making declaratory orders of proprietary interests on land based on trusts. Such a determination lies elsewhere, that is the Environment and Land Court (ELC) which is a court of concurrent jurisdiction or such subordinate courts with pecuniary jurisdiction that have been gazetted by the Chief Justice to determine land matters.”

38. In Monica Wangari Njiri & 4 Others v Eunice Wanjiru Igamba & Another[2016] eKLR, the court held as follows:- “The mandate of the probate court is limited. A distinction ought to be made between a claim against the Estate of a deceased and a claim on inheritance in respect of the estate of the deceased. In our instant suit the objectors are not claiming any interest as dependants or direct beneficiaries of the deceased. Their claim is that the title to the parcels of land is held in trust for them. Indeed this is a claim for proprietary right. As held in H.C. Succession Cause No.864 of 1996 [2015] eKLR, even if there was material establishing that there was such a trust, I doubt that the resolution of this issue would be a matter of the probate court. The mandate of the probate court under the Law of Succession Act is limited. It does not extend to determining issues of ownership of property and declaration of trusts. It is not a matter of the probate court being incompetent to deal with such issues but rather that the provisions of the Law of Succession Act and the relevant subsidiary legislation do not provide a convenient mechanism for determination of such issues. A party who wishes to have such matters resolved ought to file a substantive suit to be determined by the Environment and Land Court. Consequently and for the reasons above stated, I must find and hold that this court has no jurisdiction to resolve the proprietary interest on land based on the alleged trust.”

39. I find that the suit property was registered in the name of the deceased herein. I therefore find that the claim by the Protestor has no basis as the same is not supported by tangible evidence. The findings of the Lands Dispute Tribunal are not binding on this Court.

40. I also find that the Lands Dispute Tribunal had no mandate to make findings on ownership.

41. The Court of Appeal in, Joseph Malakwen Lelei & Another v Rift Valley Land Disputes Appeals Committee & 2 Others [2014] eKLR, stated as follows: - “On the issue of jurisdiction, we note that the law on this issue is settled and we do not need to belabour it. Section 3 of the Land Disputes Tribunal Act (repealed) gives jurisdiction to the Land Disputes Tribunal to handle claims in the following matters only:“3(1) subject to this Act, all cases of a civil nature involving a dispute as to:-(a)The division of, or the determination of boundaries to land, including land held on in common,(b)A claim to occupy, or work land or(c)Trespass to land.”Evidently the above provision does not include jurisdiction to deal with issues of determination of title to or ownership of registered land, or the determination of a Trust in favour of a party, which in essence was the basis of the 3rd respondent’s claim.”

42. InRepublic v Chairman, Mauche Land Dispute Tribunal & Another Ex Parte Elisha K. Rotich; Christopher K. Koech (interested Party) [2021] eKLR, the court stated as follows:- “ Land Dispute Tribunal was established pursuant to Section 4 of the Land Disputes Tribunals Act, 1990. The Act has since been repealed by Section 31 of the Environment and Land Court Act, 2011. Jurisdiction of the tribunal was provided for at Section 3 (1) of the Land Disputes Tribunals Act, 1990 to determine cases of a civil nature involving disputes as to the division of land, the determination of boundaries to land, including land held in common and claims to occupy or work land or trespass to land. The tribunal’s jurisdiction did not include determination of title to or ownership of registered land.”

43. The Lands Dispute Tribunal had the mandate of making findings on occupation and use of Land only.

44. On the issue as to whether the Protestor is entitled to a share of the suit property, I find that the answer is in the negative. The reason being the said property did not belong to his grandfather as alleged.

45. I find that the Petitioner is the sole beneficiary of the Estate of the deceased herein Tabutany Chepngeno Maina (Deceased) having been married to her under the Kipsigis Woman to woman marriage Custom.

46. In Wilfred Mongare Orina v Askah Mocheche Momanyi[2019] eKLR, the court stated as follows: - “The courts have applied the customs of the parties before it to determine whether or not a customary marriage of a woman to woman exists. In the case of Eunita Anyango Geko & Another v Philip Obunga Orinda Kisii High Court Misc. C.A No. 1 of 2013 [2013] eKLR the court held that in Luo customs, woman to woman marriages are defined in the same manner as that under the Kikuyu customs with the slight difference being that where the widow is left without a male child, and not necessarily without a child at all she could marry another wife. In the case of Ernest Kinyanjui Kimani v Muiru Gikanga & Another [1965] E.A 735 considered as a locus classicus in the application of customary law. Duffus J.A expressed himself while applying customary law to prove validation of woman to woman customary unions:-To summarize the position, this is a case between Africans and African Customary Law forms a part of the law of the land applicable to this case. As a matter of necessity the customary law must be accurately and definitely established. ”

27. The high court in Monica Jesang Katam v Jackson Chepkwony & another [2011] eKLR, while determining the validity of a woman to woman marriage under the Nandi custom held as follows: - “After weighing up all the evidence, I have concluded that the consistency in the testimonies of the petitioner’s witnesses shows the evidence to be truthful. The research-material referred to, shows this to have been the typical condition in which a woman-to-woman marriage takes place; and the testimonies show such a marriage to have taken place on 16th October, 2006. It is, therefore, not true as the objectors say, that the petitioner was only a servant; on the contrary, she was a “wife”, and, by the operative customary law, she and her sons belonged to the household of the deceased, and were entitled to inheritance rights, prior to anyone else. This custom, I hold, is to be read into the scheme of s. 29 of the Law of Succession Act (Cap. 160), placing the petitioner and her children in the first line of inheritance: the petitioner herself for being “wife of the deceased”, and her children for being the children of the deceased. The conclusion is to be drawn that the petitioner herein is entitled to the grant of letters of representation.”

27. In the circumstances, I find that the Protest herein lacks in merit and I accordingly dismissed it.

27. On the issue of costs, I direct that each party bears its own costs of this Protest.

27. The Petitioner to take a date for confirmation of grant within 30 days of this date.

DELIVERED, DATED AND SIGNED AT KERICHO THIS 7TH DAY OF OCTOBER, 2022A. N. ONGERIJUDGE