[2023] KEHC 27042 (KLR)

In re Estate of the Late Kiberenge Kiptonui A Mugun (Deceased) (Succession Cause 38 of 2008) [2023] KEHC 27042 (KLR) (14 December 2023) (Ruling)

Neutral citation: [2023] KEHC 27042 (KLR)

Republic of Kenya

In the High Court at Kericho

Succession Cause 38 of 2008

JK Sergon, J

December 14, 2023

IN THE MATTER OF THE ESTATE OF THE LATE KIBERENGE KIPTONUI A MUGUN (DECEASED

Between

Richard Kipselim Tonui

1st Objector

Samuel Kipkemoi Busio

2nd Objector

and

Grace Cherop A Ngok

1st Petitioner

Patrick Kimutai Birgen

2nd Petitioner

Ruling

1. The applicants herein filed a chamber summons dated May 24, 2023 seeking the following:(a)That this Honorable Court be pleased to set aside, vary and/or review orders issued herein on the August 8, 2022(b)That upon grant of prayer (a) above the estate properties listed herein be re-distributed and rectified and/or amended certificate of confirmation of grant be issued accordingly.

2. The application is supported by grounds on the face of it and the affidavit in support of summons sworn by Samuel Kipkemoi Busio, he avers that it was apparent on the face of record that the trial judge had referred the matter for court annexed mediation, the beneficiaries from the 1st and 2nd household were not in agreement with the proposed settlement that was filed and subsequently adopted as a court order of this court in the absence of all beneficiaries on the August 8, 2022, he therefore contested that the proceedings leading to the alleged mediation settlement and the subsequent adoption of the mediation agreement as court order on August 8, 2022 was erroneous and therefore an error apparent on the face of record.

3. He avers that the deceased's estate comprises of the following land parcels; Kericho / Chesir/123, Kericho / Soliat/149 and Kericho / Soliat/ 139 and was aware that the deceased during his lifetime sold 0. 5 Acres of Kericho / Soliat/139 to AGC Church and the same was listed as a liability to the estate and therefore the certificate of confirmation of grant issued on August 8, 2022 ought to be rectified to give effect to the wishes of the deceased.

4. He avers that the beneficiaries to the estate have established their respective homesteads in Kericho/chepsir/123 where they reside to date and the allocations therefore ought to take into account the present occupation as agreed in the year 2008.

5. He further avers that upon the demise of the deceased, all the beneficiaries from the three households met and resolved in a family meeting convened on March 26, 2008 to distribute the estate taking into account the wishes of the deceased and following the said resolution Samwel Birgen tasked with the responsibility of identifying a surveyor to survey the estate properties in accordance with the wishes of the deceased, each household contributed to the survey fee, the survey exercise was concluded and since then there has been a harmonious and peaceful coexistence since then to date.

6. The applicant avers that in view of the foregoing, beneficiaries from the 2nd household were not entitled to a share in land parcel Kericho / Soliat/149 or any portion thereof since the deceased had allocated the property to beneficiaries from the 1st and 3rd household.

7. The applicant further avers that the beneficiaries from the 1st household were not entitled to a share in land parcel Kericho / Soliat/139 or any portion thereof since the deceased had allocated the property to beneficiaries from the 2nd and 3rd household.

8. The applicant avers that there was therefore no justification whatsoever why the estate properties should be distributed equally among the three households after which an additional share be allocated to benefit 2 beneficiaries from the 3rd household to the exclusion of others.

9. The applicant avers that it was not until the applicants were served with an application dated March 9, 2023 that they became aware of the orders issued on August 8, 2022, they instructed their advocate to file the instant application, which application was filed without undue delay.

10. The applicant avers that in view of the foregoing, it was necessary to seek a review and/or variation of the orders issued on August 8, 2022 so as to pave way for the redistribution of the estate according to the wishes of the deceased and his household.

11. The petitioners/respondents filed a replying affidavit sworn by Patrick Kimutai Birgen in opposition to the chamber summons dated May 24, 2023, it was sworn with the authority of the co-petitioner herein.

12. He avers that the Samwel Kipkemoi Busio is a total stranger to the estate of the deceased; he is neither a beneficiary nor having a beneficial interest in the estate of the deceased.

13. He avers that the deceased herein was his father, who died intestate on December 20, 2005 leaving behind surviving beneficiaries from three households.

14. He avers that it is true that hon lady Justice Asenath Ongeri had referred the matter to mediation and that all parties had agreed and a fresh grant issued on August 8, 2022 as per the mediation agreement and adoption of the mediation agreement was not an error on the face of record.

15. He avers that the estate of the deceased consisted of Kericho / Chesir/123, Kericho / Soliat/149 and Kericho / Soliat/ 139.

16. He avers that there has never been a dispute that the deceased sold 0. 5 acres to AGC Church during his lifetime and further that the applicants forgot to indicate that they mutually sold 0. 5 acres to one Joseph Kiplangat Kurgat from LR No Kericho/chepsir/123.

17. He avers that it was undisputed that the deceased herein died intestate and he therefore contested applicants’ assertion that the wishes of the deceased ought to take precedence yet they were not expressed in a properly executed will and therefore the laws governing the distribution of such as estate automatically applies unless all beneficiaries agree on a mutual mode of distribution.

18. He avers that there were initially issued with a certificate of confirmation of grant dated February 26, 2018, however, before they could proceed with sub-division one of the beneficiaries from the 1st house, Erick Kiprono Tonui (now deceased) moved the court via chamber summons dated May 2, 2018 and opposed the mode of distribution in the said grant.

19. He avers that parties took directions to file submissions on the said application dated May 2, 2018 however on September 25, 2019 the applicant withdrew the application, the beneficiaries then sought the services of a surveyor to assist with subdivision however, the applicant chased away the surveyors and retracted his position on the application.

20. He avers that before they could proceed with hearing of the said application, the court directed the parties to proceed for mediation, the mediation was successful, the mediation report filed, the mediation report informed the confirmed certificate of grant issued by this court on August 8, 2022.

21. He avers that they are in shock that the applicants were disputing the mediation report together with grant issued on August 8, 2022 and the fact that they filed another chamber summons introducing new issues and they were also insisting on an unfair distribution on 2 beneficiaries one of them being a widow to the deceased.

22. He avers that if the applicants were not content with the mode of distribution contained in the grant confirmed on August 8, 2022, the estate of the deceased should be distributed equally among all the beneficiaries of the deceased and further that the law clearly provides for guidelines in the distribution of an estate where the deceased died intestate and given the fact that there was no mutual consent on the mode of distribution.

23. The court directed the parties to file written submissions. The petitioner/respondents complied and filed their written submissions whereas the objector/applicants did not file any submissions.

24. The petitioners/respondents filed submissions in which they maintain that they are agreeable to the mode of distribution contained in both grants issued on February 26, 2018 by hon lady Justice Mumbi Ngugi and the rectified certificate of confirmation of grant issued on August 8, 2022 by hon lady Justice AN Ongeri, in the alternate the petitioner/respondents were agreeable to having all the properties of the deceased divided equally among all beneficiaries of the estate of the deceased.

25. The petitioners/respondents were adamant that the deceased died intestate and therefore there was no duly executed will and therefore it was untenable to ask this court to recognize the wishes of the deceased. The petitioners/respondents submitted that the mode of distribution proposed by the objectors in their application was unfair.

26. The petitioners/respondents cited a plethora of cases, however, I wish to highlight following cases Inre Estate of Joseph Eric Owino (Deceased) [2022] eKLR in this case Nyakundi J. observed as follows; “ In a case of this nature where the deceased died intestate and was a polygamous man survived by two widows and children, the anchor on distribution of his estate is section 40 of the Law of Succession Act which primarily provides as follows;(1)Where an intestate has married more than once under any system of law permitting polygamy, his personal and household effects and the residue of the net intestate estate, shall, in the first instance, be divided among the houses according to the number of children in each house, but also adding any wife surviving him as an additional unit to the number of children.(2)The distribution of the personal and household effects and the residue of the net interest within each house shall then be in accordance with the rules set out in sections 35 to 38”

27. In Stephen Gitonga M’murithi v Faith Ngira Murithi the Court of Appeal observed as follows; “section 38 enshrines the principle of equal distribution of the net intestate estate to the surviving children of the deceased irrespective of gender and whether married and comfortable in their marriage or unmarried. Section 40 on the other hand enjoins the inclusion of a surviving spouse as an additional unit to each household of a polygamous deceased.”

28. The petitioners/ respondents reiterated that this court has two options; the first option being to adopt the distribution as agreed by parties in mediation or the second option being that the entire estate is distributed equally among all beneficiaries of the deceased.

29. The petitioners/respondents were adamant that the instant application was in bad faith and faulted the objectors for their conduct since the commencement of the succession cause, for objecting to all proposed modes of distribution and enjoining strangers to the succession cause. They reiterated that the objectors herein were out to delay the inevitable and frustrate the beneficiaries from enjoying their inheritance yet the succession matter has been pending in court for the last fifteen (15) years.

30. I have considered the pleadings and the submissions on record and I find that the sole issue for this court determination is whether to set aside, vary and/or review the confirmed certificate of grant issued by this court on August 8, 2022.

31. I have carefully studied the contents of the instant succession cause and I find that lady Justice Mumbi had issued a certificate of confirmation of grant dated February 26, 2018, however, some of the beneficiaries applied to have the said certificate revoked and/or annulled as it was obtained by means of untrue allegations, deliberate omission and concealment of material facts. The matter was referred for court annexed mediation, the parties were able to reach an agreement, the mediator filed a mediation settlement agreement and the mediation settlement agreement was adopted as an order of the court, consequently, lady Justice A N Ongeri issued a rectified certificate of confirmation. I find that the applicant has not furnished this court with sufficient grounds to warrant this court to set aside, vary and/or review the confirmed certificate of grant issued by this court on August 8, 2022. I find that the rectified certificate of confirmation of grant is based on the mediation settlement agreement between the parties, the said agreement is still in force as no party moved the court to have it set aside.

32. I hereby find that the chamber summons dated May 24, 2023 lacks merit. The same is dismissed with each party bearing its own costs.

DELIVERED, SIGNED AND DATED AT KERICHO THIS 14TH DAY OF DECEMBER 2023. J.K. SERGONJUDGEIn the Presence of:-Mutai for 1st & 2nd Petitioner