[2022] KEHC 11426 (KLR)

Maina & another v Chumo & 2 others (Citation Cause E003 of 2020) [2022] KEHC 11426 (KLR) (13 July 2022) (Ruling)

Neutral citation: [2022] KEHC 11426 (KLR)

Republic of Kenya

In the High Court at Eldoret

Citation Cause E003 of 2020

RN Nyakundi, J

July 13, 2022

Between

Emily Jepkemei Maina

1st Citor

Stephen Kibet Kemboi

2nd Citor

and

Ruth Jelagat Chumo

1st Citee

Rodah Chepchumba Chumba

2nd Citee

Festus Kemboi Chuma

3rd Citee

Ruling

1. This citation refers to the estate of David Kipkemboi Chumo who died on May 22, 2017. He was survived by the following;Ruth Chelagat Chumo - WidowFestus Chumo – SonGeoffrey Kemboi Chumba – SonEmily Jepkemei Chuma – WidowStephen Kibet Kemboi – SonKipkoech Kemboi – SonLydia Cherop – DaughterRodah Chepchumba – WidowIllyne Chepngetich – DaughterKevin Kibiwott – SonFelix Kipruto – Son

2. In her affidavit in support of the citation the citor states that the deceased died intestate and left the following assets behind;a)Tulwet/Kesses/Block 4 (Lelmokwo)/37 – 43. 56 HA. (108. 9 Acres)b)Tulwet/Kesses/Block 4 (Lelmokwo)/105 – 5 Ha.c)Tractor KUK 324 and other Motor Vehicles.

4. The bone of contention is that the respondents have refused to convey a meeting on how to share the estate of the deceased. Further, that the respondents have started intermeddling with the deceased estate.

5. In the case of Josiah Muli Wambua – Deceased,Nairobi Succession Cause No. 2557 of 2012 [2014] eKLR, W. Musyoka – J stated the following at paragraph 9 of his ruling: -In intestacy, citation issue only in cases where no petition has been lodged in court. Citations are intended to trigger the process of applying for letters of administration intestate in circumstances where the persons entitled to apply are not willing or are slow in moving the court in that behalf. The citor should not be a person who has himself already applied for the grant, for the citor should only apply for grant after the citee fails to so apply.

6. Section 66 of the Law of Succession Act 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)The 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…

7. The Citees have not responded to the application. Therefore, it is the finding of this court that the Citor’s Application has merit. It is undisputed that Ruth Chelagat Chumo, Emily Jepkemei Chuma and Rodah Chepchumba are positively identified as widows to the deceased. Therefore as per the provisions of Section 40 of the Law of Succession Act as read with Section 29 are entitled to claim the right to property of intestate estate of the deceased. Having said so in terms of Section 66 of the Act and Rule 73(1) of the Probate and Administration Rules I make the following declarations;(a)That besides the citor the above cited widows do petition for grant of letters of administration within 45 days from today’s ruling by filing the necessary forms and affidavits as espoused in the enabling provisions of the Succession Act. In default of compliance the parties so disobedient with the court order be cited for contempt of obstructing administration of justice.(b)That the process server of the High Court in liaison with the chief of the location in which the deceased domiciled or the current residential address do serve the citor and the widows with this court order for compliance.(c)Case conference status on September 21, 2022. (d)I make no orders to costs.

DATED, SIGNED AND DELIVERED VIA EMAIL AT ELDORET THIS 13TH DAY OF JULY, 2022. R. NYAKUNDIJUDGE