[2017] KEHC 2805 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KERICHO

SUCCESSION CAUSE NO.125 OF 2006

IN THE MATTER OF THE ESTATE OF THE LATE: TABUTANY w/o KIPKOSKE ARAP NGETICH alias LEAH CHEBET TIROP….DECEASED

RICHARD KIPTONUI SOI................1ST APPLICANT/OBJECTOR

DANIEL KIPKETER SOI..................2ND APPLICANT/OBJECTOR

VERSUS

JOYCE CHELANGAT TIROP.....1ST RESPONDENT/PETITIONER

LILY CHERONO.........................2ND RESPONDENT/PETITIONER

RULING

1. This matter relates to the estate of Tabutany w/o Kipkoske Arap Ngetich alias Leah Chebet Tirop who died on 6th June 1991. An application for letters of administration intestate to the estate was made by Joyce Chelangat Tirop and Lily Cherono in June, 2006. Form P&A 5 annexed to the application showed the following as the beneficiaries of the estate:

1. Joyce Chelangat Tirop - Daughter - 20 years

2. Lily Cherono - Daughter - 25 years

3. Daniel Soy - Son - Adult

4. Richard Soy - Son - Adult

2. The assets of the deceased were indicated in Form P&A 5 as comprising Kericho/Kapsorok/143and Kericho/Kapsorok/163 measuring 2. 6 ha and 31. 5 ha respectively according to the certificates of official search attached to the application. Letters of administration were issued to the petitioners on 19th November 2013.

3. By an application dated 4th July 2014, the petitioners applied for confirmation of the grant issued to them. In the proposed mode of distribution, Lily Cherono and Joyce Chelangat Tirop were to share, jointly, Kericho Kapsorok/143 measuring 2. 6 hectares. Land parcel number Kericho/Kapsorok/163 measuring 31. 5 hectares was to be distributed as follows:

i. Richard Soy -7. 875 ha.

ii. Daniel Soy -7. 875 ha.

iii. Lily Cherono -2. 02345 ha.

iv. Joyce Chelangat Tirop -13. 72655 ha.

4. The grant was duly confirmed and a certificate issued on 22nd July 2014. However, by an application dated 2nd October 2014 expressed to be brought under rule 43 (1) of the Probate and Administration Rules, Richard Kiptonui Soi and Daniel Kipketer Soi sought revocation of the grant. The applicants stated in their application that they sought revocation of the grant “in order to rectify the mode of distribution of the estate of late Tabutany w/o Kipkoske Arap Ngetich alias Leah Chebet Tirop (deceased) which had not been stated correctly.”

5. They then set out in their application what they deemed to be the proper mode of distribution of the estate. In this mode, the estate would be distributed so that Richard Kiptonui Soi would get Kericho/Kapsorok/143, measuring 2. 6 Ha, absolutely. Kericho/Kapsorok/163, which the applicants indicated measures 35. 5 ha, would be shared equally between Lily Cherono, Joyce Chelangat Tirop, Richard Kiptonui Soi, Daniel Kipketer Soi, Esther Chebore, Sarah Chepkuruiand Jane Cherotich. Each of them would get 4. 5 ha.

6. In her replying affidavit sworn on 6th June 2014, Joyce Chelangat Tirop opposed the application. She averred that the applicants had been oppressing her and her sister for a long time, and that clan members had resolved that they were entitled to the land. She denied that the petitioners had obtained the grant of letters of administration secretly, noting that they disclosed all the assets of the deceased. The applicants had not signed the consent for the confirmation thereof because they did not want the daughters of the deceased to inherit.

7. I must observe from the outset that certain averments by the applicants and respondents in this matter are unclear. From the various forms filed by the petitioners in their application for letters of administration intestate, it appears that this matter relates to the estate of the mother of the petitioners/respondents, Tabutany w/o Kipkoske Arap Ngetich alias Leah Chebet Tirop. Yet in the application and the affidavit in response, the parties talk of two houses. In her affidavit, Joyce Chelangat Tirop states that the deceased was survived by the following dependant (sic);

1st House

a) Tabarno alias Rebecca Chebii Tirop -Co-wife (deceased)

b) Richard Kiprotich Soi - Son

c) Daniel Kipketer Soi - Son

d) Esther Chebore - Married daughter

e) Sarah Chepkurui - Married daughter

f) Jane Cherotich - Married daughter

2nd House

g) Lily Cherono - Married daughter

h) Joyce Chelangat Tirop - Unmarried daughter

8. In their submissions dated 1st March 2017, the applicants state that all the 7 beneficiaries from both houses were not included in the distribution of the estate, and only 4 beneficiaries got shares. They pray for a fair and equal distribution of the estate of their deceased ‘father’ without any form of discrimination whatsoever.

9. In their submissions in response, the respondents term the allegations that they obtained the letters of administration and conformation without informing the applicants/objectors as baseless. It is also their contention that the estate was shared equally, and indeed, the respondents have given a larger share to the house of the objectors. They also submit that since the objectors are dissatisfied with the mode of distribution, they should not be applying for the revocation of the grant.

10. It is necessary, in my view, for certain aspects of this matter to be clarified in order to enable the court reach a fair decision. First, did the property comprising the estate of the deceased, Tabutany w/o Kipkoske Arap Ngetich alias Leah Chebet Tirop belong to her or to her deceased husband, the father of the applicants and the respondents? This would appear to be the case, as both the applicants and respondents refer to “two houses.” The applicants, on their part, complain about their “father’s” property.

11. I have also noted the mention of three daughters from the ‘1st house’, namely Sarah Chepkurui, Esther Chebore and Jane Cherotich. It would appear that these are step-sisters of the petitioners/respondents, and sisters of the applicants. They had not been included in form P&A5 when the application was made.

12. In order for the court to determine this matter fairly, let the applicants and petitioners file affidavits to clarify:

i. The reference to two houses and the assets comprised in the deceased’s estate as belonging to their “father”;

ii. If the assets are to be shared between two “houses”, the persons who are entitled to share the said assets;

iii. Whether any of the beneficiaries is not interested in the estate, and an affidavit to that effect to be filed within 30 days hereof.

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

MUMBI NGUGI

JUDGE

Mr. J. K. Kirui instructed by the firm of J. K. Kirui & Co. Advocates for the applicants.

Mr. Mutai Joshua instructed by the firm of Chelule & Co. Advocates for the respondents.