In re Estate of Kiplangat arap Chepkwony [2018] KEHC 7525 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT BOMET

SUCCESSION CAUSE NO. 58 OF 2015

IN THE MATTER OF THE ESTATE OF

KIPLANGAT ARAP CHEPKWONY...........................................................DECEASED

-AND-

IN THE MATTER OF EZEKIEL KIPTONUI ROTICH.................1ST PETITIONER

IN THE MATTER OF RICHARD KI-PKOECH ROTICH ..........2ND PETITIONER

-AND-

IN THE MATTER OF KIPRORIR ARAP LEITICH................................OBJECTOR

RULING

The Notice of Revocation or annulment of grant dated the 10th day of June 2016 seeks the annulment of the grant dated 30th July 2015.

The grounds are:-

(a)  That the  petitioners who are the sons  to the deceased filed this petition without seeking consent from the objector who is the owner of Land Parcel No. LR Kericho/Chesoen/2260.

(b)   That the petitioners and the other family members  of the deceased have never lived on this land which is parcel no. LR Kericho/Chesoen/2260.

(c) That their late father fraudulently on 11th March 1997 caused the land LR. No. Kericho/Chesoen/1498 to be subdivided into two and registered LR. No. Kericho/Chesoen/2260 in his name secretly without the consent of the objector.

(d)  That the deceased, father to the petitioners obtained the title deed despite the objector having been issued with title deed on 25th January 1998.

(e) That the objector filed a civil suit No. 343 of 1999 in Nakuru High court wherein he obtained orders on 5th  October 1999 restraining the Deceased from occupying the land in question.

(f)  The Deceased died before the case was heard and determined.

(g)  That the objector has been in this land parcel since the  year 1948 hence the application for revocation and the objector should be included as the beneficiary of LR No. Kericho/Cheseon/2260.

In their replying affidavit dated the 16th day of September, 2016 the petitioners depone in paragraph 3  that letters of administration were issued on 30/7/2015.  This was advertised in the  Gazette Notice giving 30 days notice but no objection was made.  Thereafter  after the statutory period had elapsed letters of administration were confirmed on 6th June 2016.

(b) That further before the confirmation of grant the objector did not file any caveat or an affidavit of protest to the confirmation.

(c) That the estate challenged by the objector LR. Kericho/Chesoen/2260 was legally registered under the names of the Deceased herein and there is no order or restriction registered against same.

(d) That the letters challenged were issued on 30th July 2015 hence the application has been overtaken by events.

(e) That the allegation that the Deceased acquired the estate by fraud in 1997 is not correct and the purported suit lodged in Nakuru was dismissed for want of prosecution after objectors failed to prosecute when the Deceased passed on by failure to substitute.

(f) That the orders marked ‘KAL 2’ were never enforced and or vacated due to lapse of time.

(g) That the title deed annexed to the application by objector LR. No. KERICHO/CHESOEN/1498 is in the name of KIPKOSKE ARAP LETICH and not in the name of the Deceased Kiplangat Arap chepkwony.

(h) That during the lifetime of the Deceased he was the one in occupation of LR NO. Kericho/Chesoen/2260 and the petitioners are in occupation since.

(i) That distribution  of the estate has already been done and transfers already made.

This is an application for revocation or annulment of confirmation of grant of letters of administration.  Parties did agree to have it determined by way of written submissions instead of by way of viva voce evidence.  There are issues which could have been best addressed by viva voce evidence particularly the issue of who has been in occupation of LR No. Kericho/Chesoen/2260.

I do find there is need to visit the scene for the court to ascertain the issue of occupation.

Ruling delivered dated and signed  in open court this 1st day of February 2018 in the presence of learned counsel for the petitioners Mr. Koske learned counsel for the objector Mr. Koech

Court Assistant Mr. Rotich.

M. MUYA

JUDGE

1/2/18

Leave to file a supplementary affidavit to annex the proceedings of Nakuru Court Civil Suit No. 343 of 1999.

M. MUYA

JUDGE

1/2/18

Mention on 19/3/2018.

M. MUYA

JUDGE

1/2/18