[2017] KEHC 2723 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KERICHO

SUCCESSION CAUSE NO.89 OF 2014

IN THE MATTER OF THE ESTATE OF DANIEL

KIPKEMOI ROTICH alias KIPKEMOI A. ROTICH.....(DECEASED)

BETWEEN

LEAH CHEPKOROS KIMETTO......................................................PETITIONER

AND

JOEL KIPSANG BETT…….…………………………………..1ST OBJECTOR

DAVID KIPLANGAT BETT.........................................................2ND OBJECTOR

RULING

1. This matter relates to the estate of Daniel Kipkemoi Rotich alias Kipkemoi A. Rotich (deceased) who died on the 8th day of October 2010. An application for letters of administration intestate was made by one of his two widows, Leah Chepkoros Kimetto, on 14th May 2014. Subsequently, an objection dated 4th July 2014 was filed by the objectors, Joel Kipsang Bett and David Kiplangat Bett. The objection was to the grant of letters of administration to the petitioner alone.

2. In her ruling dated 6th May 2015, Hon. Ong’udi J allowed the objection and directed that letters of administration intestate to the estate of the deceased should issue jointly to:

i.Leah Chepkoros Kimetto

ii.Joel Kipsang Bett

iii.Jane Metto

iv.David Kiplangat Bett

3. By an application dated 2nd November 2015, Leah Chepkeros Kimetto applied for the letters of administration intestate issued on 6th May 2015 be confirmed.

4. The assets of the deceased according to form no. P&A5 filed with the application for letters of administration intestate were as follows:

i. Kericho/Kiptere/1013 – 7. 4 Ha

ii. Kericho/Kipkelion/Barsiele Block 6 (Chemamul) 4-31. 2438 Ha

iii. Kericho/Kipkelion/Barsiele Block 6(Chemamul)28 -3. 9747 Ha

v.Kericho/Sosiot/408-2. 6 Ha

vi.Kericho/Kipkelion/Barsiele Block 6(Chemamul) 3 -8. 800 Ha

vii.KAG 624 Tractor Ford

viii.KUG 345 Daihatsu

ix.KTL 595 Peugeot Saloon

5. The 1st petitioner proposed that the assets of the estate be shared equally between the beneficiaries of the estate, whom she identified as follows:

i. Leah Chepkoros Kimetto - Widow

ii. Jane Metto - Widow

iii. Esther Grace Chumo - Daughter

iv. Grace Soi -Daughter

v. Ann Chepkorir Rono -Daughter

vi. Naomi Chebet Korir-Daughter

vii. Joel Kipsang Bett-Son

viii. Bernard Bett-Son

ix. Philip Kipkoech Bett-Son

x. Eric Kipkorir- Son

xi. Geoffrey Tarus-Son

xii. Nancy Chepkorir-Daughter

xiii. Joseph K. Bett-Son

xiv. David Kiplangat Bett-Son

xv. Gladys Chelangat-Daughter

6. In an affidavit of protest sworn by Joel Kipsang Bett on 15th February 2016 on behalf of and with the authority of Jane Metto and David Kiplangat Bett, the 3rd and 4th petitioners, the 2nd petitioner objected to the mode of distribution proposed by the 1st petitioner.

7. He deposed that he had sold 21 acres out of L.R. No. Kericho/Barsiele/Block 6 (Chemamul)/27to repay the loans due from the estate of the deceased to AFC and ICDC being Kshs.1,451,780/= and Kshs.5,508,895/= respectively).

8. He further deposed that the 1st petitioner had also disposed of a huge part of the estate but had failed to account for it as had been directed by the court on 6th May 2015. He averred that the estate should not be distributed until the 1st petitioner accounted for all the sales of the estate and for what she had wantonly destroyed and wasted.

9. It was his proposal further, with respect to the distribution of the estate, that the estate should not be distributed in order to avoid further acrimony in the family. His proposal was that it should instead be registered in the joint names of all the administrators, Leah Chepkoros Kimetto, Joel Kipsang Bett, Jane Metto and David Kiplangat Bett.

10. In her affidavit in reply to the protest, Leah Chepkoros Metto takes issue with the averments by the 2nd petitioner. She notes that while he has sold land, since 2011, for Kshs.7,537,000/- and paid Kshs.5,508,895/- to ICDC and Kshs.650,000/- to AFC, he has not accounted for a sum of Kshs.1,378,105/-. She also avers that part of the proceeds from the property that she sold were used to secure the release of one of the beneficiaries of the estate, Bernard Kipkurui Bett, who was in civil jail for a debt of Kshs.800,000/- due to one Daniel O. Kimono. She avers that she has sold a total of 14 acres for kshs.5,450,000/-. She also avers that she paid a total of Kshs.1,463,000/- on diverse dates to ICDC. She states that she has used the balance for her subsistence and medication, as well as for instituting the succession proceedings.

11. With regard to the proposal that the estate should be held in trust by the petitioners and should not be distributed, she avers that none of the beneficiaries is a minor to warrant the estate not being distributed.

12. The court (Ong’udi J) had directed that the protest should proceed by way of viva voce evidence. However, when the matter came up before me on 25th January 2017, the parties elected to proceed by way of written submissions. The 1st petitioner filed submissions dated 19th April 2017 together with a further affidavit on the proposed mode of distribution. She proposes that the estate of the deceased should be shared equally between the beneficiaries. She further sets out a list of some properties which she says belonged to the deceased but which she says she has not been able to ascertain particulars in respect of. She names these properties as including:

i.Plot at Londiani

ii. Plot at Barsiele Town

iii. Plot at Sosiot (Taplotin)

iv. Kericho/Kiptere/1035

13. The 1st petitioner further proposes that the moveable assets of the deceased should be valued, their actual values ascertained, and then sold and the proceeds distributed among the beneficiaries of the estate. She lists these properties as being:

i.KSC 195 – John Dere Tractor

ii.KAG 626 S – Tractor Ford 5030

iii.KUG 345 – Daihatsu

iv.KTZ 595 – Peugeot Saloon

v.International Tractor

vi.KAE 337 Y – Peugeot Pick Up

vii.Tea Bonus from October 2010 to date (both bonuses and monthly incomes)

viii.Savings at Kenya Highland Sacco-Kapsoit

ix.Savings at Barclays Bank

x.Savings at Standard Chartered Bank

xi.Shares: Standard Chartered Bank, Barclays Bank, Kenya Commercial Bank and Kenya Highland Sacco Kapsoit.

14. The 2nd – 4th petitioners filed submissions dated 3rd May 2017. They reiterated the averments by Joel Kipsang Bett and the proposal therein that the estate should not be distributed but should instead be held in trust. They base this proposal on section 35 as read with section 40 (2) of the Law of Succession Act.

15. In her written submissions, the 1st petitioner reiterates some of the averments in her affidavits with regard to the settlement of the liabilities of the deceased. She also makes certain submissions which are allegations of fact against the 2nd petitioner which cannot properly be made by way of submissions, and I will therefore disregard the said submissions. She submits that the proceeds from the sale of property used by some of the beneficiaries of the estate be taken into account in the distribution of the estate. Further, that the 2nd petitioner be called to account for the amounts he has not accounted for following the sale of some of the assets of the deceased. She also submits that she should be left to continue residing at her matrimonial home.

16. I have read the averments of the parties and their proposals with respect to the distribution of the estate of the deceased. I have also noted their accusations and counter accusations with respect to the sale of some of the assets of the deceased, and the use, or misuse, to which the proceeds of sale of the estate were put. I believe that there is no dispute regarding the beneficiaries of the deceased, and that they are all entitled to a share of the estate of the deceased. What is in contention is how the estate should be distributed, what the 1st and 2nd petitioners have failed to account to the estate for after sale of some of the assets of the deceased, and whether there are other assets of the deceased that have not been included among the list of assets.

17. Having considered the material before me, I believe that the following are the main issues for consideration:

i.How should the estate of the deceased be distributed?

ii.What are the assets of the estate of the deceased available for distribution?

iii.What were the liabilities of the deceased, and what is their current status?

iv.Whether the 1st and 2nd petitioners have accounted fully for the proceeds of sale of the assets of the deceased.

Distribution of the estate

18. I will begin with the question of how the estate of the deceased should be distributed. The 2nd petitioner proposes that the estate should not be distributed but should be registered in the name of the administrators to hold in trust for other beneficiaries. The 1st petitioner counters that the estate should be distributed equally, none of the beneficiaries being minors to warrant the estate being held in trust.

19. Section 35 of the Law of Succession Act provides for the distribution of the estate of a person who dies intestate leaving one surviving spouse and child or children. As the deceased was survived by two widows, the 1st and 3rd petitioners, his estate falls for distribution under section 40 of the Law of Succession Act, which provides as follows:

40. (1) Where an intestate has married more than once under my system of law permitting polygamy, his personal and household effects and the residue of the net 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 intestate estate within each house shall then be in accordance with the rules set out in sections 35 and 38.

20. As submitted by the 1st petitioner, none of the beneficiaries of the deceased is a minor. Consequently, there is no basis for the proposal by the 2nd petitioner that the property should be registered in the names of the four administrators to hold in trust for the other beneficiaries. His submission is that this should be done to avoid acrimony in the home. However, from the averments before me, including the allegations that the petitioners make against each other, and the allegations made by the 2nd petitioner against his sisters, it is unlikely that having the petitioners registered as trustees is going to reduce acrimony in the home. If anything, it is likely to exacerbate it. It is my finding, therefore, that the estate of the deceased shall be distributed in accordance with section 40 of the Law of Succession Act. The 1st and 3rd petitioners shall have a life interest in the deceased’s estate, the net intestate estate to be distributed equally among the beneficiaries of the deceased.

Assets available for distribution

21. A more challenging question, on the basis of the information before the court, is the extent of the net intestate estate of the deceased. The 1st petitioner indicates in form P&A 5, and provides certificates of official search, which indicated that the deceased had the following real property:

i.Kericho/Kiptere/1013 – 7. 4 Ha

ii.Kericho/Kipkelion/Barsiele Block 6 (Chemamul)4 - 31. 2438 Ha

iii.Kericho/Kipkelion/Barsiele Block 6(Chemamul)28 -3. 9747 Ha

iv.Kericho/Sosiot/408-2. 6 Ha

v.Kericho/Kipkelion/Barsiele Block 6(Chemamul)3 -8. 800 Ha

22. It is also indicated that the deceased had the following vehicles:

i. KAG 624 Tractor Ford

ii. KUG 345 Daihatsu

iii. KTL 595 Peugeot Saloon

23. The 1st and 2nd petitioners have deposed that in order to pay off the liabilities of the estate, they both sold portions of the deceased’s estate. According to the 1st petitioner at paragraph 11 of her affidavit filed in court on 6th May 2016, she sold 14 acres for Kshs 5, 450,000. She does not state which parcel of land she sold, and whether only a portion thereof or the whole.

24. At paragraph 3 of the affidavit sworn on 19th April 2017, she states that she and Geoffrey Tarus sold 13 acres. Again it is not indicated which parcel of land was sold. However, the annexures to the said affidavit make reference to land parcel numbers Kericho/Kipkelion/Barsiele Block 6 (Chemamul)3 and Kericho/Kipkelion/Barsiele Block 6 (Chemamul)7. Some of the annexures, like the sale agreement to one Raphael Kibet Koske, are virtually illegible. Land parcel number Kericho/Kipkelion /Barsiele Block 6 (Chemamu)7 is not included in form P&A 5 as one of the assets belonging to the deceased.

25. On his part, the 2nd petitioner avers that he sold 21 acres out of Kericho/Barsiele/Block 6(Chemamul)/27. He realized a total of Kshs 7,537,000. Out of this amount, he avers that he paid Kshs 5,508,895 to ICDC and cleared the outstanding loan due from the estate of the deceased.

26. The court has perused the documents filed by the parties with respect to the estate of the deceased, and is at a loss with respect to the extent of the estate remaining for distribution to the beneficiaries of the estate. I have set out above the properties comprising the estate as set out in form P&A 5. Some 34 acres out of the entire estate, or 35 acres, depending on the correct number of acres sold by the 1st petitioner, have been sold. There is reference by the petitioners to properties that were not included in the list of assets, such as Kericho/Barsiele/Block 6 (Chemamul)/27and Kericho/Barsiele/Block 6(Chemamul)/7.

27. It is necessary, in order for the court to make a determination of this matter on the basis of correct information, that full and accurate information relating to the assets of the deceased, together with supporting documents in respect thereof, be filed in court.

28. In closing on this issue, I note that the 1st petitioner also referred in her affidavits to parcels of land and motor vehicle for which documentation was not provided. Without such documentation, such properties cannot be deemed part of the estate of the deceased at this stage. They can, however, be administered separately and an application in that regard made once documents in proof of ownership by the deceased are found.

The Liabilities

29. Similar confusion-one might even say obfuscation-surrounds the extent of the liabilities of the deceased, and who settled the said liabilities.

30. Form P&A 5 indicates that the deceased had the following liabilities:

i.ICDC-Kshs 5,370,000

ii.National Bank-Kshs 4,270,902

iii.AFC-Kshs 1,134,774/35

31. In the application for confirmation of grant dated 2nd March 2015, the 1st petitioner states that the loan from ICDC was 5. 5 million. In her affidavit sworn on 19th April 2017, she refers to a loan from ICDC of Kshs 5,508,895 and Kshs 650,000 due to AFC.

32. As to who paid the loans, the 1st petitioner avers in her affidavit sworn on 19th April 2017 that she paid Kshs 1, 463,000 “to offset the loan.” She has annexed copies of receipts and a letter from ICDC addressed to the family of the deceased indicating that the loan as negotiated had been fully paid. She avers, however, at paragraph 6 of the affidavit that the 2nd petitioner paid “Kshs 4,045,895 and Kshs 650,000” from the proceeds of sale of 21 acres.

33. On his part, the 2nd petitioner avers that the deceased left a loan of Kshs 73,000,000 with ICDC, which he negotiated down to Kshs 4,800,173. 14. He also states that the deceased was indebted to AFC in the sum of Kshs 1,451,780. He further avers that he paid Kshs 5,508,895, and sets out the mode in which the repayments were made. He too, has annexed receipts as evidence that he made the payment.

34. There is a duty on the parties to be forthright in their averments, in order to enable the court reach a just determination of the matter. This is important since, if a beneficiary sold an asset belonging to the deceased ostensibly to repay a loan due to the estate, but did not use the proceeds for this purpose, he must account for this amount and the extent thereof deducted from his or her share of the estate.

35. The only thing that the parties are agreed on with respect to the issue of the amount due from the deceased is that it was paid in full, both to AFC and ICDC. How much was paid, and by whom, like the number of acres sold, and out of which parcel or parcels of land, is unclear.

36. The totality of the above is that the court cannot make a proper determination of this matter on the b

37. asis of the information currently before it. It requires the parties to furnish it with further information to clarify the matters raised above. Consequently, I am directing the 1st and 2nd petitioners to, within 30 days hereof:

i.File further affidavits indicating the assets of the deceased, with supporting documents in respect of each asset;

ii.Indicate what parcels of land were sold by the 1st and 2nd petitioners respectively. If only portions of the land were sold, the portions sold and the acreage of the parcels remaining;

iii.Give a clear account of the monies realized from the sale by the 1st and 2nd petitioners, and how the monies were utilized, with documents in support.

Dated, Delivered and Signed at Kericho this 4th day of October 2017.

MUMBI NGUGI

JUDGE

Mr. Miruka instructed by the firm of Enock Anyona Miruka & Co. Advocates for the 1st petitioner.

Mr. Langat instructed by the firm of Kipkorir Tele & Kitur

Advocates for the 2nd - 4th petitioners.