[2018] KEHC 6004 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KERICHO

SUCCESSION CAUSE NO.220 OF 2014

IN THE MATTER OF THE ESTATE OF THE LATE:

ZABLON KOMINGOI MATEGET alias KOMINGOIARAPMATEGET

alias KOMINGOI C/O ARAP MATEGET

And

ANDREW CHERUIYOT...................................................1ST PETITIONER

ANNAH MATEGET..........................................................2ND PETITIONER

STANLEY KIPKEMOI CHERUIYOT...........................3RD PETITIONER

RULING

1. This matter relates to the estate of Zablon Komingoi Mateget alias Komingoi arap Mateget alias Komingoi s/o Arap Mateget who died intestate on 24th June 2011. The deceased was polygamous, with three wives. The first two wives are deceased, but he was survived by the 3rd wife, Anna C. Mateget, and the following children from the three houses:

a. Rasto Kiprono Cheruiyot

b. Ann Chepkemoi Ruto

c. Esther Chepkorir Serem

d. Eunice Chepkorir Serem

f. Elizabeth Chepkurui Cheruiyot

f. Sally Chepchirchir Ruto

g. Dina Chepngeno

h. Andrew Kiplangat Cheruiyot

i. Anna Chepkoech Cheruiyot

j. Wilson Kiplangat Cheruiyot

k. Raeli Chepukurui Rono

l. Sarah Chepkorir

m. Jane Koskei Chelangat

n. Stanely Kipkemoi Cheruyoit

o. Lydia Cherop Sigei

p. Nelly Chepkemoi Ngetich

q. Anna C. Mateget

r. Mary Chepngeno Ngetich

s. Ludia Chemutai Sitienei

t. David Kipkorir Cheruiyot

u. Reuben Kimutai Cheruiyot

v. Edna Chelangat

w. Phrisilah Chepkemoi Langat

x. Benard Kipkoech Cheruiyot

y. Betty Chebet Mutai

z. Jackline Chepkirui Sigei

a. Richard Kipyegon Cheruiyot

b. Weldon Kibet Cheruiyot

2. According to form P&A 5 filed in court, the deceased had the following assets:

a. L. R. No.Kericho/Litein/7 Trading Centre

b. L.R. No.Kericho/Getarwet/454 measuring 32 acres

c. L.R. No.Kericho/Litein/30 measuring 3. 0 acres

d. L.R. No.Kericho/Litein/790 measuring 0. 041 hectares

e. L.R. No.Kericho/Boito/158 measuring 8. 4 hectares

f. Motor vehicle Reg. No.KAV 879L Toyota Saloon

g. Motor vehicle Reg. No.KAA 190G Toyota Saloon

h. Money in Bureti Tea Sacco Litein A/C No.6944

i. Money in Kenya Commercial Bank Litein A/C No.069-142063671

3. An application for letters of administration intestate was made by Andrew Kiplangat Cheruiyot, Anna Cherono Mateget and Stanley Kipkemoi Cheruiyot. A grant was duly issued on 8th March 2015.

4. An application for confirmation of grant was made dated 20th April 2015 in which the applicant, Anna Cherono Mateget, represented by the firm of Miruka and Company Advocates, proposed that the estate of the deceased be distributed as follows:

a. L.R. No.Kericho/Getarwet/454 (32 acres to be shared equally)

b. LR. No.Kericho/Litein/30 (3. 0 acres to be shared equally)

c. LR. No.Kericho/Litein/790 (3. 0 acres) to be shared between 1st and 2nd houses.

d. LR No.Kericho/Boito/158 (8. 4 He. To be shared equally)

e. Motor vehicle reg. no.KAV 879 L. Toyota saloon to be sold and the proceeds be shared equally among the 3 houses

f. Motor vehicle reg.KAA 190 G Toyota saloon to sold and the proceeds be shared equally among the 3 houses

g. Money in Buret Tea Sacco Litein A/C No.6914 savings

h. Money in Kenya Commercial Bank Litein a/c no.142063671. All the savings be withdrawn and be shared among the 3 houses.

i. 3rd house-L.R.No.Kericho/Litein/7

5. Prior to the confirmation of grant, an affidavit of protest was filed by Alice Chepkurui Ruto. The affidavit, sworn on 30th July 2015, alleged that the first house had left her out of the list of beneficiaries of the estate of the deceased. She further alleged that she was the widow of a son of the deceased from the 1st house, one Stephen Kipkoech Cheruiyot. Thereafter, on 14th November 2016, the administrators conceded that Alice Chepkurui Ruto was a daughter in law of the deceased, and that she had been married to Stephen Kipkoech Cheruiyot, a son of the deceased, who had predeceased him. She was therefore entitled to a share of the deceased’s estate. The protest having been thus settled, what remains is to consider the manner in which the estate of the deceased should be distributed.

6. In an affidavit sworn on 4th June 2015, the 1st and 3rd petitioners proposed that the estate of the deceased be distributed equally between the three houses. Thereafter, Andrew Cheruiyot, the 1st petitioner, changed his mind and requested the court on 14th November 2017 to distribute the estate in accordance with the Law of Succession Act.

7. In the absence of agreement between the parties on the mode of distribution of the estate, the law requires that the estate of the deceased, who was polygamous, be distributed in accordance with section 40 of the Succession Act which 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 theresidue of the net intestate estate shall, in the first instance, be dividedamong 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 intestate estate within each house shall then be in accordance with the rules set out in sections 35 to 38. “

8. The court had requested the parties on 27/2/2018 to file an affidavit to clarify the names of the persons who had renounced their interest in the estate. In an affidavit sworn on 7th June 2018, Mr. Stanley Kipkemoi gave a list of names that included daughters of the deceased, Jane Chelangat and Nelly Chepkemoi Ngetich who had not renounced their interest before Ong’udi Judge on 8th October 2015.

9. Where, as is the case with the 1st and 2nd house, the spouse of the deceased is also deceased, the children of the deceased take the share due to their respective houses in equal share. With respect to the 3rd house, Anna Cherono Mateget, the widow of the deceased, will have a life interest in her house’s share of the estate. Upon termination of her life interest, her children will take their share of the estate in equal share.

10. I note from the court record that some beneficiaries of the estate appeared before the court (Ong’udi J) on 8th October 2015 and renounced their interest in the estate. Those who renounced their interest were the following:

1st house

1. Eunice Chepkurui

2. Selly Chepchirchir

3. Esther Chepkorir

4. Sarah Cheprotich

2nd house

1. Sarah Chepkorir

2. Raeli Chepkirui Rono

3. Lydia Cherop

3rd house

Betty Chebet

11. Accordingly, the estate of the deceased will be distributed as provided under section 40 among the following beneficiaries:

i. Rasto Kiprono Cheruiyot

ii. Anna Chepkemoi Ruto

iii. Elizabeth Chepkurui Cheruiyot

iv. Dina Chepngeno

v. Andrew Kiplangat Cheruiyot

vi. Anna Chepkoech Cheruiyot

vii. Alice Chepkurui Ruto

2nd House

i) Wilson Kiplangat Cheruiyot

ii) Jane Koske Chelangat

iii) Stanley Kipkemoi Cheruiyot

iv) Lydia Cherop Sigei

v) Nelly Chepkemoi Ngetich

3rd House

i) Anna Cherono Mateget

ii) Mary Chepngeno Kimetto

iii) Ludia Chemutai Sitienei

iv) David Kipkorir Cheruiyot

v) Reuben Kimutai Cheruiyot

vi) Edna Chalangat

vii) Phrisilah Chepkemoi Langat

viii) Benard Kipkoech Cheruiyot

ix) Jackline Chepkurui Sigei

x) Richard Kipyegon Cheruiyot

xi) Weldon Kibet Cheruiyot

12. I had also noted that there is no evidence of ownership by the deceased of L. R. No.Kericho/Litein/7 Trading Centre, nor is the acreage indicated. There is also no evidence that the deceased had a property known as LR. No. Kericho/Litein/30 measuring 3. 0 acres which is included in the 2nd petitioner’s affidavit on distribution of the estate. I had therefore requested the parties to file evidence of the properties that belong to the deceased. In his affidavit aforesaid, Stanley Kipkemoi Cheruiyot indicated that there had been errors made in the list of properties. He stated that the assets of the deceased should be as follows:

i) L.R. No.Kericho/Getarwet/454 measuring 32 acres

ii) L.R. No. Kericho/Chemoiben/30 measuring 0. 1482 (0. 06 ha which was jointly owned with Kipsigei Arap Korir and Rubonet Munai both deceased)

iii) L.R. No.Kericho/Litein/790 measuring 0. 041 hectares or 0. 1 of an acre

iv) L.R. No.Kericho/Boito/158 measuring 8. 4 hectares or 20. 75 acres

v) L.R. No.8839/7 Litein Township. No acreage is indicated.

The evidence of ownership of this latter property are copies of receipts in the name of Zablon Mateget for payment of rates in 2014.

13. The total acreage of the deceased’s estate is therefore 52. 99 acres. Taking into account the beneficiaries of the estate who have renounced an interest in the estate, the first house has 7 units, the second 5 and the third has 11 units, making a total of 23 units. Each of the beneficiaries is therefore entitled to approximately 2. 3 acres. The 1st house is entitled to 16. 1 acres, the 2nd house 11. 5, while the 3rd house is entitled to 25. 3 acres.

14. Accordingly, as the parties were unable to agree on the distribution, I direct that the estate of the deceased be distributed as follows:

i. 1st house-16. 1 acres out of L.R. No.Kericho/Getarwet/454

ii. 2nd house-11. 5 acres out of L.R. No.Kericho/Getarwet/454

iii. 3rd house

a. 4. 4 acres out of L.R. No. Kericho/Getarwet/454

b. L.R. No. Kericho/Chemoiben/30 measuring 0. 1482 acres

c. L.R. No.Kericho/Litein/790 measuring 0. 041 hectares or 0. 1 of an acre

d. L.R. No.Kericho/Boito/158 measuring 8. 4 hectares or 20. 75 acres. (Total 25. 339 acres)

15. The estate had two motor vehicles, registration numbers KAV 879 and KAA 190 G Toyota saloon. The said vehicles shall be sold and the proceeds be distributed equally between the beneficiaries of the 1st and 2nd house.

16. With respect to the cash said to be held in Buret Tea Sacco Litein A/C No.6914 and in Kenya Commercial Bank Litein A/c no. 142063671, it shall be withdrawn and be shared equally among the three houses.

17. There shall be no order as to costs.

Dated Delivered and Signed at Kericho this 14th day of June 2018.

MUMBI NGUGI

JUDGE