Emily Chepkoech alias Emily Chepkoech Chumo v Priscilla Malit [2014] KEHC 4406 (KLR)

IN THE HIGH COURT OF KENYA AT KERICHO

SUCCESSION CAUSE NO.66 OF 2009

IN THE MATTER OF ESTATE OF LOISE TAPKIGEN MALIT

alias TAPKIGEN W/O MALIT  – (DECEASED)

AND

EMILY CHEPKOECH alias

EMILY CHEPKOECH CHUMO           -                  APPLICANT

VERSUS

PRISCILLA MALIT                                      -                  PROTESTOR

RULING

The subject matter of this ruling is the summons for confirmation of grant dated 27th November 2013 taken out by Emily Chepkoech Malit alias Emily Chepkoech Chumo, hereinafter referred to as the Applicant and the protest filed by Priscilla Malit, hereinafter referred to as the Protestor.  When the dispute came up for hearing, this court directed it to be disposed of by affidavit evidence and by written submissions.

I have considered the schedule of distribution proposed by the Applicant and that proposed by the Protestor.  I have also considered the rival written submissions.  The Applicant proposed for the Estate to be distributed as follows:

FIRST HOUSE

NAME                                                     PROPERTYSHARE OF HEIR

Johana Kipkemoi Chepkwony          Ker/Kabianga/1292               0. 525  HA

Emily Chepkoech Malit alias

Emily Chepkoech Chumo                 Ker/Kabianga/1292               0. 525  HA

Philip Kiptanui Chepkwony  Ker/Kabianga/1292               O.525  HA

Johnstone Kipsigei Chepkwony       Ker/Kabianga/1292               0. 525  HA

SECOND HOUSE

NAME                                         PROPERTY             SHARE OF HEIR

Priscilla Malit                       Ker/Kabianga/1292               2. 1 HA

In her affidavit of Protest, the Protestor opposed the Applicant’s schedule of distribution and proposed for the Estate to be distributed as follows:

1st house          -           2. 1 HA.

2nd house         -           2. 3 HA.

It is the submissions of the Protestor that her proposal is in terms of the mutual agreement made before the clan elders.  The Protestor claimed that the village elders took into account the developments she had put up in the land.

After a careful consideration of the rival proposals, it is clear in my mind that the clan elders attempted in vain to distribute the Estate.  There is no doubt that the late Loise Tapkigen Malit alias Tapkigen W/O Malit died without having children of her own.  According to the Kipsigis Customs such a person is allowed to marry another woman to bear children to keep her lineage alive.  In this cause, there is no dispute that the deceased married two women namely: Jane Chepngeno Malit (now deceased) representing the first house and Priscilla Malit, the 2nd house.  The deceased’s first wife had four children namely:

Johana Chepkwony

Emily Chepkoech Chumo

Philip Chepkwony

Johnstone Chepkwony

The deceased’s second wife i.e. Priscilla Malit had the following children:

Kennedy Chepkwony

Lily Cherop

Bernard Kipyegon Chepkwony

Eric Chepkwony

Cherotich Malit

The Applicant and the Protestor appear to agree that the deceased’s Estate be shared equally between the houses.  The proposal is in line with the provisions of Section 40 of the Law of Succession Act.  In the end the grant is confirmed and the Estate is distributed as follows:

1st House       -        2. 1 Hectares.

2nd House      -        2. 1 Hectares.

Each beneficiary in a house to get an equal share of their entitlement and this directive should be clearly shown in the schedule of distribution to be specified in a further affidavit.  Each party to meet her own costs.

Dated, signed and delivered in open court at Kericho this 30th day of May, 2014.

J. K. SERGON

JUDGE

In the presence of:

Applicant: present in person.

Protestor: present in person.