[2015] KEHC 715 (KLR)
The court determined that the protest regarding the distribution of the estate of the late Zakayo Kimutai Kotut raises factual disputes that cannot be resolved through written submissions alone. Specifically, the disagreement over whether the entire parcel Kericho/Nyamanga/325 was sold and the claim for compensation...
Source-derived case information.
- Citation
- [2015] KEHC 715 (KLR)
- Parties
- Applicant: Kimutai A Ngetich; Respondent: Esther Chepkoskei Kotutu
- Court
- High Court
- Court Station
- High Court at Kericho
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 168 of 2000
- Procedural Posture
- Succession Cause / Directions Prior to Hearing of Protest
- Outcome
- Orders for determination by written submissions vacated; protest to be heard by viva voce evidence.
- Legal Topics
- Succession, Estate Distribution, Oral Evidence, Protest Procedure
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kimutai A Ngetich
Applicant
Esther Chepkoskei Kotutu
Respondent
Procedural Posture
Succession Cause / Directions Prior to Hearing of Protest
Legal Issues
- 1 Whether the protest regarding the distribution of the deceased's estate can be determined by written submissions.
- 2 Whether oral evidence is necessary to resolve factual disputes regarding the sale and distribution of estate property.
- 3 How the estate of Zakayo Kimutai Kotut should be distributed among the beneficiaries.
Ratio Decidendi
The court determined that the protest regarding the distribution of the estate of the late Zakayo Kimutai Kotut raises factual disputes that cannot be resolved through written submissions alone. Specifically, the disagreement over whether the entire parcel Kericho/Nyamanga/325 was sold and the claim for compensation over tea bushes necessitate the taking of oral evidence and cross-examination of witnesses. The court therefore vacated previous orders for determination by written submissions and set aside the order setting the matter for judgment, directing that the protest be heard by viva voce evidence to ensure a fair and just resolution of the issues between the parties.
Court Disposition
Orders for determination by written submissions vacated; protest to be heard by viva voce evidence.
Orders
- The orders of 4th June 2015 for the protest to be determined by written submissions are vacated.
- The order setting the matter for judgment on 30th October 2015 is set aside.
Full Case Text
Judgment text and source record
27 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KERICHO
SUCCESSION CAUSE NO. 168 OF 2000
IN THE MATTER OF THE ESTATE OF THE LATE ZAKAYO KIMUTAI KOTUT (Deceased).
KIMUTAI A NGETICH..........................................................1ST PETITIONER
VERSUS
ESTHER CHEPKOSKEI KOTUTU....................................2ND PETITIONER
DIRECTIONS
This matter was coming for judgment on 30th October 2013 on the main issue of distribution of the estate of the deceased Zakayo Kimutai Kotutu.
Mr. Kimutai A. Ngetich filed an affidavit of protest on 24th September 2014 as directed by the Court on 1st July 2014.
No directions were taken on how the protest was to be heard. The two counsel appearing for the parties agreed by consent to dispose of the matter by way of written submissions.
While highlighting the submissions it was indicated that the property falling for distribution was:
Kericho/Nyamanga/325 (11) Acres
Kericho/Roret/829 (14. 2) Acres
Kericho/Roret/599 (1. 8) Ha.
According to Mr. Motanya the two families have no problem with the distribution of No's (ii) & (iii).
Both petitioners have presented their different modes of distribution which are not in agreement.
The 2nd petitioner says parcel no (i) was wholly sold to Samwel Kiplangat Kirui while the 1st petitioner says only 6 out of the 11acres were sold to the said Samuel Kiplangat Kirui.
There is also an issue of the 1st Petitioner wanting compensation, over tea bushes. These are not matters which can be determined through written submissions.
My view is that oral evidence must be led and witnesses cross-examined to assist the Court on how distribution should be done.
I therefore vacate the Orders of 4th June 2015 for the protest to be determined by written submissions.
The Order setting this matter for judgment on 30th October, 2015 is also set aside.
The protest shall be determined by way of viva voce evidence.
The parties to be heard on the earliest date available.
Dated, Signed and Delivered in open Court this 21st day of December, 2015.
H.I. ONG'UDI.
JUDGE.