In re Estate of Kimeto arap Cheroigin alias Kimeto Cheroigin (Deceased) [2025] KEHC 3872 (KLR)

In re Estate of Kimeto arap Cheroigin alias Kimeto Cheroigin (Deceased) (Succession Cause 346 of 2015) [2025] KEHC 3872 (KLR) (27 March 2025) (Ruling)

Neutral citation: [2025] KEHC 3872 (KLR)

Republic of Kenya

In the High Court at Kericho

Succession Cause 346 of 2015

JK Sergon, J

March 27, 2025

Between

Kipkemoi Metto

Petitioner

and

Joseph Kipngeno Kimeto

Applicant

Ruling

1. The application coming up for determination by this court is the chamber summons dated 17th February, 2025 in which the applicant seeking the following orders:(i)Spent(ii)Spent(iii)Thatthis Honourable Court be pleased to grant orders to the OCS-Roret Police Station,to provide adequate security to District Surveyor Kericho County during the undertaking of the demarcation and sub-division of land parcel Kericho/Roret/461. (iv)Thatany other or further order to be made as this Honourable Court may deem just and expedient.(v)Thatcost application be in cause

2. The Application is supported by grounds on the face of it and a supporting affidavit sworn by Joseph Kimeto the Applicant herein.

3. He avers that he is one of beneficiaries of the estate of the late Kimeto Arap Cheroiginalias Kimeto Cheroigin(deceased)

4. He avers that the Certificate of Grant was issued on 24th April , 2023 but one of the beneficiaries Kipkemoi Mettois hostile and has prevented the Applicant and other beneficiaries from accessing and utilizing their portions of land as per the said Certificate of Grant and already the Certificate of Grant has been registered with the lands office.

5. He avers that to date the said Petitioner Kipkemoi Mettohas adamantly refused to surrender the Applicant’s portion of land and is not about to so unless the Officer Commanding Station Roret Police Station do provide security District Surveyor Kericho County to conduct demarcation of the said parcel of land and that he will suffer irreparable loss and damage.

6. He therefore prays that an order of security do issue as prayed in his application herein for the interest of justice to prevail.

7. He avers that on 26th November, 2024 the County Surveyor Kericho County had fixed to do the demarcation and sub division exercise on 22nd January, 2025, however, the Petitioner became wild and hostile prevented the exercise to be carried out.

8. The matter came up for inter partes hearing, the advocate for the applicant stated that he served the instant application and filed an affidavit of service and therefore the application should be treated as unopposed. There was no response to the application and/or representation on the part of the respondent.

9. I have considered the application and response by parties and I find that the issue (s) for determination are whether to grant orders to the OCS-Roret Police Station,to provide adequate security to District Surveyor Kericho County during the undertaking of the demarcation and sub-division of land parcel Kericho/Roret/461.

10. On the issue as to whether to grant orders to the OCS-Roret Police Station,to provide adequate security to District Surveyor Kericho County during the undertaking of the demarcation and sub-division of land parcel Kericho/Roret/461 this court is vested with protective powers by virtue of section 47 of the Law of Succession Act which vests court with wide discretion in granting protective powers for purposes of safeguarding the estate of a deceased person. It provides: “The High Court shall have jurisdiction to entertain any application and determine any dispute under this Act and to pronounce such decrees and make such orders therein as may be expedient.” and Rule 73 of the Probate and Administration Rules provides that: - “Nothing in these Rules shall limit or otherwise affect the inherent power of the court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the court.”

11. Section 47 of the Act and rules 73 of the Probate & Administration Rules give the court powers to entertain any application and make orders as may be necessary for the ends of justice such as the instant application. The grant in the instant succession cause was confirmed on 24th April, 2023 which was two years down the line up to the time of filing this application. This delay could lead to a grant being revoked under Section 76 of the act. Therefore section 47 of the Act and rule 73 of the Probate & Administration Rules empowers the court to enforce its orders and give effect to the administration of the instant estate.

12. In the light of the foregoing, it is manifest that the application dated 17th February, 2025 is hereby allowed with no orders as to costs.

DATED, SIGNED AND DELIVERED AT KERICHO THIS 27TH OF MARCH 2025J.K. SERGONJUDGEIn the presence of:Court Assistant – RutohBii for the Applicant