In re Estate of Joseph Kipsang Koech (Deceased) [2025] KEHC 6428 (KLR)

In re Estate of Joseph Kipsang Koech (Deceased) (Miscellaneous Succession Cause E021 of 2023) [2025] KEHC 6428 (KLR) (21 May 2025) (Ruling)

Neutral citation: [2025] KEHC 6428 (KLR)

Republic of Kenya

In the High Court at Eldoret

Miscellaneous Succession Cause E021 of 2023

E Ominde, J

May 21, 2025

IN THE MATTER OF ESTATE OF JOSEPH KIPSANG KOECH (DECEASED)

Between

Lydia Chebet Tororei

Applicant

and

Esther Jeborecha Tororei

1st Respondent

Daniel Kiprotich Sang

2nd Respondent

Andrew Samoei

3rd Respondent

Meshack Sang

4th Respondent

Ruling

1. Before this court is a Summon for Revocation of Grant dated 16/05/2023 seeking the following orders;1. Spent.2. Spent.3. Spent.4. That the Certificate of Confirmation of Grant dated 23/11/2022 and Grant of Letters of Administration Intestate amended on 9/05/2022 be revoked and or annulled.5. That cost of this application be borne by the Respondents.

2. The application is premised on the grounds therein and it is further supported by the Affidavit sworn by the Applicant on the same date.

3. She deposed that in the year 2020, Andrew Samoei petitioned at the Chief Magistrate Court for grant of letters of administration intestate, that a grant was made in his favour 16/11/2020 and amended on 9/05/2022.

4. She further deposed that the Petitioner disclosed that in the affidavit in support of the petition for letters of administration intestate the full inventory of all the assets were 5551 shares with NIC A/C 144XX200, 14350 shares with KCB A/C M008XX926, shares with EMMO Society estimated at Kshs. 800,000/=, that Summons of Confirmation of grant was filled and upon the matter coming up for confirmation, the entire estate of the deceased worth approximately Kshs. 200,000,000/= was distributed.

5. She contended that the Petitioner introduced other properties in the cause of the proceedings that had not been initially disclosed thus increasing the value of the estate and rendering the Court without jurisdiction and that the Petitioner in the Cause failed to disclose to the Court material facts to that the estate’s worth exceeded what he had disclosed in the Affidavit.

6. She maintained that the Petitioner in his petition fraudulently misled the Court as to the value of the estate.

7. She further maintained that all the beneficiaries are adults and have legal entitlement to the estate thus the estate ought to be subdivided and transmitted to each beneficiary as agreed and not to be held in trust as per the Certificate of Grant.

8. In conclusion, the she deposed that the Court lacked the pecuniary jurisdiction to confirm the Grant as the value of the estate exceeded Kshs. 200,000,000/= and therefore beyond the pecuniary jurisdiction of the Magistrate’s Court.

The Response 9. The Application is opposed by the Respondents vide the Amended Replying Affidavit sworn by Daniel Kiprotich Sang who is the 2nd Respondent on 3/12/2024.

10. He deposed that the proceedings herein relate and concern the estate of their late father Joseph Kipsang Koech, who died on 23/08/2018 aged about 80 years.

11. He added that he has authority of his brother Emmanuel Koech, that his name was included as the 3rd Applicant yet he was not consulted and his signature on the Supporting Affidavit was fabricated. He contended that their elder sister Christine Jeruto Tororei who is also a beneficiary of the estate of their late father was not included in the proceedings herein.

12. According to the Respondents the Summons herein are meant to vex and harass the Administrator, this is after the death of their mother which occurred on 23/03/2024.

13. The 2nd Respondent further deposed that the death of a co-administrator where there are several of them does not render a grant inoperative as all powers and duties of administration become vested in the survivor.

14. The 2nd Respondent contended that the Cause herein was escalated to the superior Court vide an application dated 16/5/2023 which was abandoned and effectively spent and that it is unprocedural for the Applicants to super impose another application over a spent one. According to the 2nd Respondent, the file herein ought to have been marked as closed a fresh one opened for the current application.

15. The 2nd Respondent further deposed that the Cause herein was referred to mediation, adoption and confirmation by consensus and it is a surprise that the Applicants are now disowning the process.

16. The Respondent maintained that the accounts can be availed once the period and scope is determined. He added that the loan account with Agricultural Finance Co-operation has been fully redeemed as can be seen from the final statement attached.

17. The 2nd Respondent contended when their mother was ailing, she incurred debts in excess of Kshs. 1,000,000/= as evidenced by the two receipts, being part of the treatment costs and that their mother subsequently died and as a family, they incurred a huge bill which he is notable to quantify as it was shared responsibility between siblings, relatives and neighbours.

18. The 2nd Respondent maintained that if the Applicants were candid enough, they would have stated that their late father had settled most his affairs in his lifetime and their meetings and mediation merely formalized his desires and its therefore unfortunate to attack sharing on the basis of gender.

19. The 2nd Respondent further deposed that issue of sale of shares bequeathed to heirs cuts across the family as evidenced by the agreement dated 1/04/2024 between Christine Jeruto Tororei to Cynthia Chelagat Rotich, agreement dated 15/04/2024 between Viola Chemutai Tororei to Emmanuel Kipekmboi, agreement dated between Esther Jeborecha Tororei to Joash Kiplimo Mutai and agreement dated 4/06/2024 between Lydia Chebet Tororei to Sosten Kipkosgei which are sale agreements witnessed by the Chief Sirikwa Location,

20. According to the 2nd Respondent rather than set aside, revoke or annul the entire grant above, the Respondents prayer that the same be further mediated to define the shares of the beneficiaries. He also proposed to expand the administration to include Emmanuel Koech, who is a signatory to their father’s loan account, where the bulk of the land known as LR Moiben/Moiben Block 1 (Moiben) 36 and which is awaiting discharge.

21. In the end, the 2nd Respondent deposed that for record purposes and for comfort of all parties involved, the Respondents are not opposed to the Court seizing the Cause and proceeding to determine all the issues that are outstanding.

Submissions 22. At the close of pleadings, the court directed that the Application be canvassed by way or written submissions and the parties were given timelines within which to comply. At the close of the timeline, Counsel Mr Ngige Mbugua for the Respondent informed the court that the Applicants had not served the m with their submissions as directed to enable them file theirs. He therefore opted to rely on the Replying Affidavit filed on behalf of the Respondents by one Daniel Kiprotich sang. Counsel Ms Isiaho for the Applicants did not file any submissions. The court therefore directed that the Ruling will be premised on the pleadings.

Determination 23. I have considered the said pleadings and having addressed my mind to the issues therein raised, it is my considered opinion that the following issues arise for determination;i.Whether this Application is defective for reasons that it has been superimposed upon an earlier Application dated 16th May 2023 which was abandoned.ii.Whether the Amended Affidavit of the 2nd Respondent filed without leave of the Court is illegaliii.Whether the Magistrates Court lacked the requisite pecuniary jurisdiction to handle the succession causeiv.Whether the Application has met the threshold of Section 76 of the Law of Succession Act.

24. On the issues as drawn in i) and ii) it suffices to say that the same are based firstly on the procedure adopted by the applicant in which the said applicant has moved the court and secondly by the 2nd respondent in manner in which he has proffered his evidence to court. The bottom line on both objections is that they are based on technicalities of the procedure used to move the court. They do not in any way attack the substance and/or the substratum of the matters therein pleaded through the impugned procedures. In this regard then, they qualify to be considered as procedural technicalities that do not go into the substance and/or the merits of the case.

25. The Constitution at Article159 (1) on the exercise of Judicial Authority provides as follows;Judicial authority is derived from the people and vests in, and shall be exercised by, the courts and tribunals established by or under this Constitution.

26. At Article 159 (2) (d) it explains and mandates on how the authority given to the courts and tribunals is to be exercised where courts are confronted with matters of procedural technicalities such as the one now facing the court as follows;In exercising judicial authority, the courts and tribunals shall be guided by the following principles; - justice shall be administered without undue regard to procedural technicalities.

27. The above being the case, and being satisfied that the objections raised fall within the rubric of procedural technicalities, then as mandated by the Supreme Law, this court shall not pay any undue regard to these technicalities of form but will proceed and determine this case on its merits

28. That said, it is not in dispute that the grant herein was issued and confirmed by the Magistrate’s Court. However, given the nature of the Application now before the court, it is my considered opinion that it is important to get the true picture of what transpired before the Magistrates ‘Court on how it got seized of jurisdiction in the cause that subsequently led to the issuance and subsequent confirmation the grant the subject matter of this Application.

29. In this regard, it is necessary that the court lays out the chronology of events that led to the issuance of the said grant. The cause was first lodged in the Chief Magistrates’ Court at Eldoret in Succession Cause No. 334 of 2020, by way of an undated Petition for Grant of Letters of Administration. The same is court stamped as having been filed on 04th September 2020. The Petitioner was Andrew Samoei who described himself as a Grandson of the deceased. In the said Petition, the full inventory of all the assets comprising the deceased estate and whose value he placed at Ks. 800,000/- as follows;1. 5551 Shares with NIC A/C 144XX2002. 14350 Shares with KCB A/C M008XX9263. Shares with EMMO Society

30. To this extent, the Magistrates’ Court had the requisite pecuniary jurisdiction to handle the matter. Grant of Letters of Administration were issued on 16th November 2020. Thereafter, by way of an Application made under a Certificate of Urgency dated 15th December 2020 seeking that the grant be confirmed notwithstanding that six months from the date the said Grant had not expired was made. The Application was allowed and a Certificate of Confirmation of Grant dated 17th December 2020 was issued. It listed the following as the full inventory of all the assets;1. KCB Account No. 1167XXX4162. Shares at Kenya Commercial Bank Account No. M008XX9263. Family bank Account No. 008XXX004. 5551 Shares with NIC Bank Account No. 144XX2005. Shares with EMMO Society

31. Subsequently, following an Application dated 21st September 2021, a Consent dated 15th January 2021 of was entered into and adopted as an order of the court. The Administrators were expanded to include Daniel Kiprotich Sang, Meshack Sang and Emmanuel Koech. It outlined how the assets listed in the confirmed grant was to be shared out amongst all the beneficiaries. The said consent also stated that the properties that were not included in the initial Application for Grant of Letters of Administration shall be brought before the court by the administrators by way of an affidavit.

32. Thereafter, the record indicates that a Consent dated 7th May 2022 based on a Mediation and Full Final Settlement Agreement Date 22nd March 2022 signed by the Mediator one Joseph Kipturgo and all the Parties was adopted and signed by the Hon Christine Menya Senoir Resident Magistrate as an order of the court. The said Consent now included also the assets of the deceased comprising of land parcels that had been left out in the initial Petition. The Mediation Agreement indicates that the following family members signed the full and final settlement agreement reached by the Mediator;a.Esther Jeborecha Tororeib.Daniel Kiprotich Sangc.Andrew Samoeid.Meshack sange.Emmanuel Koechf.Christine Jeruto Tororeig.Lydia Tororeih.Viola Tororeii.Mercy Chepkosgei

33. From what the court can discern from the record of the settlement agreement and as stated by the respondents in their reply, it is this consent that then informed the Certificate of Confirmation of Grant dated 23rd November 2022 in which it is stated that the full inventory of all the assets included those listed in 1)-3) and 1)-5) above and including Land Parcel Nos. Moiben LR No. 92 measuring 7. 48Ha; Moiben LR No. 36 measuring 57. 7 Ha; Ziwa LR Block 3-228 measuring 37. 6 Acres; Ziwa LR No. 326 measuring 1. 70 Ha and Ziwa Block 3 LR No. 327 measuring 0. 040 Ha raised the value of the Estate beyond the pecuniary jurisdiction of the Magistrates’ Court hence this Application seeking that the Grant as confirmed be revoked.

34. The court takes note of the fact that Lydia Chebet Tororei who is the Applicant herein, was one of the Beneficiaries of the deceased estate who participated in the mediation process and signed the Consent as filed by the Mediator that led to the issuance of the impugned Certificate of Confirmation of grant. The court further notes that the Applicant also participated fully in all the processes that led to the issuance and subsequent confirmation of the initial grant as well as the Application for the Revocation or Annulment of the Grant dated 21st September 2021 that led to the issuance by consent of the certificate of confirmation of grant dated 15th January 2022

35. On the issue of the jurisdiction of the Magistrates’ Courts on Succession matters, initially, Section 48(1) of the Law of Succession Act, Cap 160, was the applicable law. It provided as follows;Notwithstanding any other written law which limits jurisdiction, but subject to the provisions of section 49 of this Act, a Resident Magistrate shall have jurisdiction to entertain any application other than an application under section 76 of this Act and to determine any dispute under this Act and pronounce such decrees and make such orders therein as may be expedient in respect of any estate the gross value of which does not exceed one hundred thousand shillings:Provided that for the purpose of this section in any place where both the High Court and a Resident Magistrate’s Court are available, the High Court shall have exclusive jurisdiction to make all grants of representation and determine all disputes under this Act.’

36. In 2015, Section 48(1) of the Act was amended by the enactment of the Magistrates’ Court Act, Act No. 26 of 2015. Section 23 of the new Act repealed the said Section 48(1) of the Act and substituted it with the following new subsection: -23. The Law of Succession Act is amended, by repealing section 48(1) and substituting therefor the following new subsection –1. Notwithstanding any other written law which limits jurisdiction, but subject to the provisions of section 49, a magistrate shall have jurisdiction to entertain any application and to determine any dispute under this Act and pronounce such decrees and make such orders therein as may be expedient in respect of any estate the gross value of which does not exceed the pecuniary limit prescribed under section 7 (1) of the Magistrates’ Courts Act, 2015. ’

37. Section 7 of the Magistrate’s Court Act 2015 caps the pecuniary jurisdiction of Magistrate’s Courts at a maximum of Ksh. 20,000,000/=. The said Section then graduates that pecuniary jurisdiction downwards from the rank of the most senior magistrate being Chief Magistrate to that of the lowest rank being Resident Magistrate. Having considered the issues raised, I note that it is not denied by the respondents that once the land assets were included in the listed assets of the deceased estate, then as averred by the applicant, the value of the estate went up to an estimate of Ks. 200,000,000/-. Given the pecuniary jurisdiction of the Magistrates’ Court as herein outlined, this amount is way in excess of that jurisdiction and all things remaining equal, the Hon SRM did not have the requisite pecuniary jurisdiction to handle the matter.

38. However, in my considered opinion, the circumstances under which the grant was confirmed as above outlined ought to be considered in reaching a determination. Throughout the proceedings, it is not denied that the court had the requisite pecuniary jurisdiction to handle the matter as it did as already herein outlined. The issue of contention is the act of the court in adopting a consent based on a mediation settlement in which all the parties participated and appended their signatures to the full and final settlement.

39. The court notes that this act of the Hon Magistrate complained against came at the final stage of the proceedings. Whereas the Magistrates’ Court from the very onset had the requisite pecuniary jurisdiction to proceed with the matter, the court notes that the value of the final inventory of assets changed at the mediation stage by the act of the parties consenting to include the land assets that had been left out. The court notes in this circumstances that it is not correct as deposed by the Applicant that it is the Petitioner who introduced these new properties. All of the beneficiaries including the Applicant herein did as already summarised above.

40. The court further notes that the mediation, adoption and confirmation was by the by consensus of all the beneficiaries. A consent based on the full and final settlement of the mediation process was then entered into by the parties who then appeared before the court to have this consent adopted as an order of the court. This was done by the Hon Magistrate who was seized of the matter and a certificate of confirmation of grant based on the consent was subsequently issued. The question then is this act of the Hon Magistrate then be construed to translate to the hearing and determination of the cause without jurisdiction?

41. Given the circumstances of this case, I think not. As the court has observed, it is the action of the parties that changed to pecuniary jurisdiction of the court. Because the court was already properly seized of jurisdiction and had already heard and determined the Petition by issuing and Confirming the Grant when it was properly seized of jurisdiction, the Act of Adopting the Consent of the Parties as herein explained cannot in my view be construed to mean that the court heard and determined the Petition in the true sense of the actual hearing and eventual determination of a case.

42. In any event, it is my considered opinion that once the circumstances changed at Mediation, a process that the court was not part of and did not participate in, then the parties were bound to have this fact brought to the attention of the court by way of an Application seeking to have the Mediator’s Report adopted and seek for the transfer of the case to the High Court for reason of want of jurisdiction of the Lower Court in light of the changed circumstances.

43. This is particularly important because the Law of Succession Act provides that parties must disclose the value of all the assets comprising the estate in their application as filed. It should therefore not be left to the court to surmise for itself what that value of the estate is or could be based on the listed assets for it to decide whether or not it has jurisdiction. In this case, the court notes that save for the value given in the initial Petition, no subsequent change in the value of the estate based on the listed assets was given so as to inform the court of the changed circumstances. Even as at now, the court notes that what has been given in the Application is an approximation. However, the court notes that the approximate value given by the applicant has not been rebutted and/or contradicted and the court has therefore proceeded with the application based on that value.

44. Given these circumstances, it is my considered opinion that the doctrine of estoppel which generally put is a legal principle that prevents a person from denying a statement or conduct they previously made if another party relied on it to their detriment. Essentially, it prevents someone from going back on their word or actions when it would be unfair to do so to someone else. This Applicant was part and parcel of the very process that she now seeks that the court annuls. Being part of the entire process including the fact that they all failed to alert the court on the changed circumstances of the estate regarding that then ousted the jurisdiction of the court if the case under the new circumstances had been heard and determined by the court, it is disingenuous of the Applicant to now turn around and seek that the grant be revoked and in my considered opinion, this Application is made in bad faith.

45. On the issue of whether the Application has met the threshold of Section 76 of the Law of Succession Act, the said provision is as follows;Section 76. Revocation or annulment of grantA grant of representation, whether or not confirmed, may at any time be revoked or annulled if the court decides, either on application by any Interested Party or of its own motion—(a)that the proceedings to obtain the grant were defective in substance;(b)that the grant was obtained fraudulently by the making of a false statement or by the concealment from the court of something material to the case;(c)that the grant was obtained by means of an untrue allegation of a fact essential in point of law to justify the grant notwithstanding that the allegation was made in ignorance or inadvertently;(d)that the person to whom the grant was made has failed, after due notice and without reasonable cause either—(i)to apply for confirmation of the grant within one year from the date thereof, or such longer period as the court order or allow; or(ii)to proceed diligently with the administration of the estate; or(iii)to produce to the court, within the time prescribed, any such inventory or account of administration as is required by the provisions of paragraphs (e) and (g) of section 83 or has produced any such inventory or account which is false in any material particular; or(e)that the grant has become useless and inoperative through subsequent circumstances.”

46. These provisions of Section 76 were clearly expounded upon by the court In re Estate of Prisca Ong’ayo Nande (Deceased) [2020] eKLR which exposition I associate myself with fully. The court stated thus:Under section 76, a court may revoke a grant so long as the grounds listed above are disclosed, either on its own motion or on the application of a party. A grant of letters of administration may be revoked on three general grounds. The first is where the process of obtaining the grant was attended by problems. The first would be where the process was defective, either because some mandatory procedural step was omitted, or the persons applying for representation was not competent or suitable for appointment, or the deceased died testate having made a valid will and then a grant or letters of administration intestate was made instead of a grant of probate, or vice versa. It could also be that the process was marred by fraud and misrepresentation or concealment of matter, such as where some survivors are not disclosed or the Applicant lies that he is a survivor when he is not, among other reasons. The second general ground is where the grant was obtained procedurally, but the administrator, thereafter, got into problems with the exercise of administration, such as where he fails to apply for confirmation of grant within the time allowed, or he fails to proceed diligently with administration, or fails to render accounts as and when required. The third general ground is where the grant has become useless and inoperative following subsequent circumstances, such as where a sole administrator dies leaving behind no administrator to carry on the exercise, or where the sole administrator loses the soundness of his mind for whatever reason or even becomes physically infirm to an extent of being unable to carry out his duties as administrator, or the sole administrator is adjudged bankrupt and, therefore, becomes unqualified to hold any office of trust.”

47. In applying my mind to the circumstances of this case as I have herein above summarised, the long and short is that even as the Applicant, who as I have already pointed out, participated in all the processes that led to the issuance and eventual confirmation of the grant the subject matter of this cause deposed that the petitioner herein fraudulently misled the Court as to the value of the estate, I do not find this to be the case. The Petition as filed was clear on what the assets comprising the deceased estate were and as I have already pointed out, the increase in value of the estate came much later after the beneficiaries themselves agreed to add the land assets that the petitioner now being accused of fraud had himself left out in the initial Petition.

48. In light of the above, I am well satisfied that the Applicant has failed to meet the three basic and fundamental prerequisites for the annulment of a grant in that the applicant has completely failed to demonstrate the following;a.That the process of obtaining the grant was attended by problemsb.That the grant was obtained procedurally, but the administrator, thereafter, got into problems with the exercise of administration,c.That the grant has become useless and inoperative following subsequent circumstances,

49. The Application seeking that the grant be revoked and/or annulled lacks merit and the same is accordingly dismissed. However, in considering the other prayers made in the said Application and in light of the fact that even though loosely made by the parties in their pleadings, there are proposals worth considering and which the court in the interest of justice and under the powers conferred upon it under the provisions of Section 47 of the Law of Succession Act can fashion appropriate orders and/or remedies as a way forward so as to get this cause back on course.

50. The court notes that the Applicant in maintaining that all the beneficiaries are adults and have legal entitlement to the estate, was of the view that the estate ought to be subdivided and transmitted to each beneficiary as agreed and not to be held in trust as per the Certificate of Grant. The 2nd Respondent on his part was of the view that rather than set aside, revoke or annul the entire grant, the same should be further mediated upon so as to define the shares of each of the beneficiaries. He also proposed that the administrators be expanded to include Emmanuel Koech, who is a signatory to their father’s loan account which is the subject of the bulk of the land known as LR Moiben/Moiben Block 1 (Moiben) 36 and which is awaiting discharge. Basically both are saying the same thing in my view. That the shares of each of the beneficiaries need to be identified defined and transmitted.

51. In the circumstances, the court now hereby orders as follows;a.The Eldoret Chief Magistrates Court Succession Cause No. 334 of 2020 be and is now hereby transferred to Eldoret High Court Family Division and is henceforth to be heard and determined under High Court P&A Misc. No. E021 of 2023. b.The preservatory orders issued in the Chief Magistrates Court Succession Cause No. 334 of 2020 restricting any dealings and/or proceedings with the Estate of the late Joseph Kipsang Koech (deceased) are now hereby affirmed and upheld.c.The cause is referred to Mediation for purposes of identifying, defining and transmitting the shares of each of the beneficiaries and also on the proposal to Emmanuel Koech as an Administrator of the estate for the reasons given. The parties are to attend to the Deputy Registrar/Registrar Mediation on 12th June 2025 for the purposes of the allocation of a mediator.d.This being a family matter, each party shall bear their own costs.

READ DATED AND SIGNED AT ELDORET ON 21ST MAY 2025E. OMINDEJUDGE