https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6831

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT BOMET** **MISCELLANEUOUS CIVIL APPLICATION NO. E025 OF 2025** **REGINA CHEPTANUI ……………………….……… APPLICANT** **VS** **EZEKIEL SANG ………………………………………. 1ST RESPONDENT** **RICHARD TONUI …………………………………….. 2ND RESPONDENT** **DAVID KOECH ……………………………………….. 3RD RESPONDENT** **BOMET LAND REGISTRAR ………………………. 4TH RESPONDENT** **BOMET COUNTY SURVEYOR …………………… 5TH RESPONDENT** **OCS BOMET POLICE STATION ………………… 6TH RESPONDENT** **RULING** 1. Through the Notice of Motion Application dated 13th August 2025, the Applicant sought the following orders: - 2. Spent. 3. Spent. 4. Spent. 5. THAT this Honourable Court do issue an order directing the Officer Commanding Bomet Police Station to render security to the District Surveyor and Land Registrar Bomet County to visit the common asset LR No. KERICHO/SILIBWET/7 for the purpose of demarcation and subdivision of the same as per the four Grants issued in respect of the same. 6. THAT this Honourable Court be pleased to make orders or issue directions as it deems fit and just. 7. The Application was brought under **Article 40 of the Constitution of Kenya, sections 1A, 1B and 3A of the Civil Procedure Act, Order 19 of the Civil Procedure Rules and sections 71** and **74 of the Law of Succession Act**. It was premised on the grounds on the face of the Application and further by the Supporting Affidavit sworn by Regina Cheptanui on 13th August 2025. **The Applicant’s case** 1. The Applicant stated that she was a co-administrator alongside her brother Joseph Rono according to the Grant issued and confirmed on 10th July 2025 in respect of KERICHO/SILIBWET/7. That the 1st, 2nd and 3rd Respondents were equally holders of Grants issued in respect of KERICHO/SILIBWET/7 but the same were issued by the High Court in Kericho. 2. It was the Applicant’s case that KERICHO/SILIBWET/7 was jointly owned by four brothers namely Kipsang Chepngotiet, Kiplelei Chepngotiet, Chelule Chepngotiet and Maritim Chepngotiet and upon their demise, their families initiated separate succession cases over the same property that was registered in their father’s name. That there was no dispute over the property. 3. It was the Applicant’s case that she wanted this court to consolidate the four Grants and direct the Bomet County Land Surveyor to visit the land with a view of subdividing the same as per the issued Grants to avoid family tension and confusion. That the holders of the Grants held different views on subdivision and the same had caused confusion and delayed the initiation on the process of subdivision. 4. Through her Supplementary Affidavit dated 10th March 2026, the Applicant stated that neither party would be prejudiced as the property was still intact and that consolidation did not involve making changes in occupation but was directed towards enforcing the Grants. The Applicant further stated that KERICHO/SILIBWET/7 was jointly owned by the four deceased and was not free property for the purpose of succession as per **section 3 of the Law of Succession Act.** 5. It was the Applicant’s case that the four deceased did not subdivide KERICHO/SILIBWET/7 but used it jointly where they each built their homesteads. It was the Applicant’s further case that no evidence had been tendered to show that the Certificates of confirmed Grants reflected the existence on the ground. That there was nothing wrong in confirming the measurements on the ground. 6. The Applicant stated that on 4th May 2018, some parties approached the Land Registrar and subdivided the suit plot into two; Plot Number 5047 and 5048. That no party had since owned the said subdivisions or disclosed their existence and if left as it were, would lead to difficulty in enforcing the Grants. The Applicant further stated that this court on its own motion ought to cancel the titles Plot Number 5047 and 5048 and have the same revert to KERICHO/SILIBWET/7. 7. Through her written submissions dated 2nd March 2026, the Applicant submitted that without consolidating the four Grants, there was a risk of parallel enforcement which would generate conflicting subdivisions, inconsistent implementation and a risk of administrative paralysis at the Lands Office. They relied on **Law Society of Kenya v Centre for Human Rights and Democracy and 12 others (2014) eKLR et.al.** **Response** 1. Through a Replying Affidavit dated 3rd September 2025, the 1st Respondent stated that KERICHO/SILIBWET/7 was jointly owned by four brothers namely Kipsang Chepngotiet, Kiplelei Chepngotiet, Chelule Chepngotiet and Maritim Chepngotiet. That alongside the 2nd and 3rd Respondents, they were Administrators and had been issued with confirmed Grants. The 1st Respondent further stated that the law required that a succession cause be filed separately in respect of each deceased person irrespective of whether the property was jointly owned. 2. It was the 1st Respondent’s case that during the lifetime of the deceased, they subdivided KERICHO/SILIBWET/7 amongst themselves but not equally and placed a boundary comprised of Mauritius thorn, the boundary which was still clear to date. It was the 1st Respondent’s case that he had no objection if the County Land Surveyor could confirm the acreage on the ground based on the occupation and further based on the Certificates of confirmation of Grants. That the Surveyor should not interfere with the existing boundaries set by the deceased persons. 3. The 1st Respondent stated that as per the Certificate of confirmed Grants, the Applicant’s family was taking the bigger share. That the other families were satisfied with the portions that they occupied. The 1st Respondent further stated that the Certificates of Grants issued reflected the existence on the ground. 4. I have gone through the record and the Applicant’s written submissions dated 2nd March 2026 and the only issue I have sieved for my determination was whether this court should consolidate the four Grants issued in respect of KERICHO/SILIBWET/7. 5. From the pleadings, it was undisputed that KERICHO/SILIBWET/7 was jointly owned by Kipsang Chepngotiet, Kiplelei Chepngotiet, Chelule Chepngotiet and Maritim Chepngotiet (all deceased) and further that the Applicant, 1st, 2nd and 3rd Respondents were their heirs. It was also an undisputed fact that the Applicant, 1st, 2nd and 3rd Respondents had each acquired confirmed Grants in respect of their deceased’s father’s estate. 6. Having keenly gone through the pleadings, it was clear that the parties did not challenge the veracity of the respective Grants and further did not challenge the fact that the deceased had in their lifetimes built their homesteads in their respective portions of KERICHO/SILIBWET/7. The Applicant’s contention was that if the Grants were not consolidated, it would lead to an absurdity during distribution. 7. It is salient to note that succession is normally done on a deceased person to identify his estate and his beneficiaries. At the first point of call, succession was done on a deceased person and not land. I wholly agree with **Ondu (Substituted by Mathew Obunga Okore) v Ondu (Substituted by Monica Mugoya & 2 others) [2025] KEELC 8216 (KLR)** where the court held: - ***“Succession is done in respect of a deceased person and it is intended to identify the deceased person’s assets and liabilities and to distribute the assets as by law provided to the heirs of the deceased having taken into account the deceased’s liabilities if any. Therefore, succession is not done in respect of land, but in respect of a deceased person…….”*** (Emphasis mine) 1. Flowing from the above, it is the court’s position that it was legally sound and procedural how each party conducted separate succession proceedings on each deceased individual with the aim of identifying his estate. As stated earlier, there was no dispute as to the current occupations and the only dispute that I see was the execution of the four Grants. As a plethora of cases have demonstrated, once it was clear that a deceased had settled his/her affairs in their lifetime, the court was bound to accept and be led by the deceased’s wishes. In **Murumba v Natili [2023] KEHC 18759 (KLR),** the court held: - ***“……The Court is bound to respect the wishes of the deceased on how his children share his possession after death.”*** 1. Similarly, the Court of Appeal in **Margaret Wanja Elija v Peter Ngari Elijah Kimani [2013] KECA 393 (KLR**) held: - ***“……..There is nothing in the law of succession Act cap 160 laws of Kenya which authorizes a court of law to disregard a deceased person’s wishes on how his estate is to be distributed especially where the same is within the parameters permitted by the said succession Act, and it is also fair to the satisfaction of the court and all or a majority of the beneficiaries of the deceased’s’ estate….”*** 1. From the above, it is my finding that the consolidation of the Grants would cause confusion during distribution and the same is rejected. Being that there was no dispute as to the current occupations, it was only just that the acreage of the suit plot is determined and the process of demarcation and subdivision commences. 2. In the end, the application dated 13/8/2025 is allowed. An order is issued to the Officer Commanding Bomet Police Station to render security to the District Surveyor and Land Registrar Bomet County while visiting LR No. KERICHO/SILIBWET/7 for the purpose of demarcation and subdivision of the same as per the four Grants issued in respect of the same. This being a family matter, each party to bear their own costs. **Ruling delivered, dated and signed at Bomet this 20th day of May, 2026.** **.................................** **HON. JULIUS K. NG’ARNG’AR** **JUDGE** **Ruling delivered in the presence of:** **Applicant:present** **Siele/Susan (Court Assistants)**