[2022] KEHC 12372 (KLR)

In re Estate of Teriki Tapkigen Rokocho (Deceased) (Succession Cause 304 of 2007) [2022] KEHC 12372 (KLR) (18 July 2022) (Ruling)

Neutral citation: [2022] KEHC 12372 (KLR)

Republic of Kenya

In the High Court at Eldoret

Succession Cause 304 of 2007

EKO Ogola, J

July 18, 2022

IN THE MATTER OF THE ESTATE OF TERIKI TAPKIGEN ROKOCHO (DECEASED)

Between

Kobilo Chepkiyeng

1st Petitioner

Esther Kipsat

2nd Petitioner

and

Esther Kabon Rokocho

1st Objector

Wilson Kiprono Rokocho

2nd Objector

Ruling

1. I have before me for determination two applications both filed on March 25, 2022. In the application dated March 22, 2022 the petitioners seek to be appointed as administrators to the estate of the deceased whereas in the application dated March 23, 2022 the 2nd objector equally seeks to be appointed as the administrator to the estate of the deceased.

Petitioners’ Case 2. The petitioners in an affidavit jointly signed on March 22, 2022 averred that the deceased herein died on July 11, 2003 at Lelboinet sub-location. That the petition herein was published in the Kenya gazette issue of March 20, 2008. The objectors herein filed a notice of objection on April 9, 2008 and consequently filed an objection on April 22, 2008. The petitioner contend that this cause has been pending in court for the last (15) years without a grant being issued because of the said objection and several other interim applications that have been filed by the objectors. The petitioner’s case is that they are the only daughters/children of the deceased herein hence rank in priority in terms of being issued with the grant of administration. The petitioner’s contend that the objectors are a step-mother and step-brother to them and cannot rank in priority over them.

3. The petitioners urged court to issue them with the grant of administration.

The Objectors’ Case 4. The 2nd objector in the affidavit dated March 23, 2022 averred that the deceased herein is a co-wife to the 1st objector, both having married to the late Rokocho Batore (deceased). The 2nd objector averred that he has been in occupation of parcel of land No Soy/Soy/Block 4 (Kongasis) 6 from 1973 to date, and has since established a matrimonial home on the subject land and resides there together with family.

5. The 2nd objector deposed that although the 1st objector is his biological mother, he was raised from childhood by the deceased herein and by dint of the Keiyo customary law he is a son of the deceased as the deceased was unable to have a son. The 2nd objector further deposed that the deceased herein raised him to adulthood and he continued residing on the subject land with the deceased until her demise in 2003. The 2nd objector maintains that during his childhood he knew the deceased as his own biological mother and that the deceased even helped make the necessary arrangements for his marriage. When the deceased fell ill, he single-handedly took care of her and that when the deceased died the petitioners never attended her burial.

6. The 2nd objector contends that the petitioners in 2007 applied for letters of administration without his involvement or knowledge yet they were aware that he is a legitimate beneficiary of the deceased’s estate prompting him to protest the publication in the Kenya gazette.

7. The 2nd objector contends that the deceased held the subject land in his trust, and that the deceased was only a trustee and that the subject land did not belong to her and does not form part of her estate.

Submissions 8. The court directed parties to file submissions to both applications. The objectors filed their submission on March 29, 2022 whereas the petitioners did not file any.

Determination 9. After careful analysis, the only issue for determination is who should be appointed as the administrators of the estate of the deceased.

10. The undisputed facts herein are the that the petitioners are daughters of the deceased whereas the 2nd objector is a step-son of the deceased. Both parties seek to be appointed as administrators of the estate of the deceased.

11. Under section 29 of the Law of Succession, a dependant is defined as;a)The wife or wives, or former wife or wives, and the children of the deceased whether or not maintained by the deceased immediately prior to death;b)Such of the deceased’s parents, step-parents, grand-parents, grandchildren, step-children, children whom the deceased had taken into his family as his own, brothers and sisters, and half-brothers and half-sisters, as were being maintained by the deceased immediately prior to his death; andc)Where the deceased was a woman, her husband if he was being maintained by her immediately prior to the date of her death.

12. From the above provision, there are two categories of dependants. The first category under paragraph (a) are automatic dependants who do not need to prove that they were being maintained by the deceased prior to his or her death. The second category where the 2nd objector falls, is that of persons who must prove maintenance immediately prior to the deceased’s death.

13. The matter of appointment of administrators is one in which the final discretion lies with the court. Section 66 of the Law of Succession Act is explicit on this and on the order of priority. It provides that:“When a deceased has died intestate, the court shall, save as otherwise expressly provided, have a final discretion as to the person or persons to whom a grant of letters of administration shall, in the best interests of all concerned, be made, but shall, without prejudice to that discretion, accept as a general guide the following order of preference-(a)surviving spouse or spouses, with or without association of other beneficiaries;(b)other beneficiaries entitled on intestacy, with priority according to their respective beneficial interests as provided by part v;(c)the public trustee; and(d)creditors”

14. In section v of the act, section 38 provides that where the intestate is survived by children but no spouse, then the net intestate shall be equally divided among the surviving children; thus making it clear that the children of the deceased have priority and that they rank in pari passu with each other.

15. Rule 7 (7) of the Probate and Administration Rules, 1980, provides that:“Where a person who is not a person in the order of preference set out in section 66 of the Act seeks a grant of administration intestate he shall before the making of the grant furnish to the court such information as the court may require to enable it to exercise its discretion under that section and shall also satisfy the court that every person having a prior preference to a grant by virtue of that section has—(a)renounced his right generally to apply for a grant; or(b)consented in writing to the making of the grant to the applicant;(c)been issued with a citation calling upon him either to renounce or to apply for a grant.”

16. In view of the foregoing, it is clear that, for purposes of administration in cases where the deceased is survived by children but no spouse, the right persons for appointment are the surviving children; and that step-children can only be considered for appointment as administrators where there is renunciation or consent of the surviving children; or for some other good cause to be explained by way of an affidavit. It is worth noting that administration must be distinguished from inheritance. the 2nd objector herein cannot therefore rank in priority over the petitioners being daughters of the deceased.

17. The 2nd objector’s claim is that he lived with the deceased and that the deceased held parcel of land No Soy/Soy Block 4 (Kongasi) 6 in his trust. By virtue of the aforementioned the 2nd objector seeks to be appointed as an administrator of the estate of the deceased. It is worth noting that issues touching on land ownership can only be dealt with by the Environment and Land Court as provided by article 162 (2)(b) of the Constitution, and section 13(1) and (2) of the Environmental and Land Court Act. The 2nd objector’s claim over the subject land can therefore only be dealt with by the Environment and Land Court and not this court.

18. It is for the reasons stated above that I hereby order as follows;a) That the grant of letters of administration with respect to the estate of Teriki Tapkigen Rokocho be and is hereby issued to Kobilo Chepkiyeng and Esther Kipsat (the 1st and 2nd petitioners) respectively.b) No orders as to costs.

DATED AND DELIVERED AT ELDORET THIS 18TH DAY OF JULY 2022. …………………………E. K. OGOLAJUDGE