In re Estate of Elisha Chemwetich Kandagor (Deceased) [2024] KEHC 8779 (KLR)

In re Estate of Elisha Chemwetich Kandagor (Deceased) (Succession Cause 155 of 2017) [2024] KEHC 8779 (KLR) (19 July 2024) (Directions)

Neutral citation: [2024] KEHC 8779 (KLR)

Republic of Kenya

In the High Court at Nakuru

Succession Cause 155 of 2017

HM Nyaga, J

July 19, 2024

IN THE MATTER OF THE ESTATE OF THE LATE ELISHA CHEMWETICH KANDAGOR (DECEASED)

Directions

1. In my Ruling delivered on 18th October, 2023, I had directed that the two properties namely: - L.R No.9413/15 (I.R.57223) (Kabarak)

L.R. No. Baringo/Sabatia 103/39 (Sabatia)

Be valued and reports be tendered to court.

2. That directive was compiled with as two reports by Kaerad Card Limited have been presented to the court. They are to the effect that:a.Sabatia land measuring approximately 21. 25 acres has a market value of Kshs.10 million. This means the valuation at around 470 per acre.b.Kabarak land measuring about 51. 5 acres has a market value of Kshs.280,000,000. This puts the price at around Kshs.5. 4 million an acre.

3. There was also a report filed by Lipak Consultants Ltd. The same found the properties valued as follows: -a.Baringo/Sabatia 103/39 was found to measure 21. 5 acres and was valued at Kshs.8. 5 million. This translates to about Kshs.400,000 per acre.b.L.R. 9413/15 (I.R. 57223) was found to measure 51. 4 9 acres and was valued at Kshs.430 million. This translates to around Kshs.8. 35 per acre.

4. It is then obvious that asking the 1st house to be content with the land at Sabatia and the 2nd have to take the land at Kabarak would create a very unequal mode of distribution.

5. It would be unconscionable to allow such a distribution which is evidently unjust and unfair.

6. Clearly, it can now be seen why the latter was so hotly contested.

7. The law, and as restated in the authorities cited earlier, is that there ought to be equal distribution of the estate among the beneficiaries.

8. Equal is a term that may not be defined legally. For instance, does it refer to acreage of land or the value of the land. All these are abstract permutations used and terms used and there cannot be a scientifically accurate way of ensuring equality. The Court does its best to ensure that the parties are generally given equal shares of the estate in terms of value.

9. It is apparent that the 1st house settled on the land at Sabatia, which is smaller and of lesser value than the land at Kabarak, where the 2nd family was settled. A way has to be found so that the members of the first house get a share that is equal in value as those of the 2nd house.

10. That is easier said than done, and given the issue that arose herein, there are other competing interests like those of 1st house daughters.

11. It would not be in the interest of the parties to make major relocations as a result of the distribution. It may be that they all have developed certain sections of the deceased’s land.

12. In my opinion, the best approach is to take account of the situation on the ground which is not specified to the court.

13. That being the case, I would be reluctant to make order right now.

14. I therefore direct that the parties sit down and see how each beneficiary will get an equal share4 of the estate in terms of value. The 1st house’s share will be take into account and be assigned a value of Kshs.10 million which is more or less the value given by the 2 valuers.

DATED AND DELIVERED AT NAKURU THIS 19THDAY OF JULY, 2024. ..............H. M. NYAGA,JUDGE.In the presence of;C/A JenifferKaranja Mbugua for 3rd RespondentNo appearance for others.