In re Estate of Kiptoo Kipkech (Deceased) [2019] KEHC 4423 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KABARNET

MISC. SUCCESSION CAUSE NO. 1 OF 2019

ESTATE OF KIPTOO KIPKECH (DECEASED)

GRACE TUNGO KIPTOO..........................................1ST ADMINISTRATOR

TUNGO CHERUIYOT................................................2ND ADMINISTRATOR

VERSUS

KIPKOCHOI KIPTOO

REBECCA TITOMET

MARIA TUNGO KIPTOO...................................OBJECTOR/APPLICANTS

JUDGMENT

1. The Applicants who are children of the deceased herein seek revocation of Confirmed Grant herein made to the Administrators by the Principal Magistrate’s Court at Eldama Ravine on 10th January 2019, on the grounds that-

1. The grant was obtained fraudulently by making false statements and/or concealing from court something material to the cause.

2. The proceedings to obtain letters of Administration were defective in substance.

3. The Applicants were not consulted before the purported distribution of the deceased estate was arrived at.

4. The mode of  distribution  of the deceased  estate  is not fair  and equitable  and is  oppressive  or against  the interest  of the Applicants.

5. The  Administrators  did not  call for  a family meeting  to discuss  the question  of distribution  as requested  of them  by the Lower  Court on  8th  November  2018.

6. The deceased had two families and the administrators’ family sidelined our family.”

2. The application was supported by the affidavit of the 1st applicant and opposed by the Replying Affidavit of the 1st respondent respectively on 25th January and 4th February 2019.  The applicant filed a further affidavit sworn on 11th February 2019 in response to the replying affidavit.

3. Significantly, the Respondents’ Replying Affidavit sworn on 4th February 2019 while denying any notions of fraud and concealment of material facts in the process and content of the application  for the grant and Confirmed Grant conceded the issue of an agreement by family members on distribution of the estate, with which they claimed the Confirmed Grant complied, as follows:

7. “THAT: - on 23rd October, 2015 the application for grant of letter of Administration was gazette vide gazette notice No.8090 of 2015. (Attached and marked GTK 2 is a copy of the Gazette Notice).

8. THAT: - on 14th November, 2016 I and TUNGO CHERUIYOT were appointed administrators of the estate of the deceased. (Attached and marked GTK 3 is a copy of Grant of Letters of Administration).

9. THAT:-  at the  time of  filing  for confirmation of grant  the other  beneficiaries  refused  to sign summons  for confirmation of grant  that necessitated  us filing   an  application  to compel  the applicants  to sign  the documents.(attached  and marked  GTK 4 is a copy  of the application).

10. THAT: - after numerous court attendance the applicants refused to co-operate. They attended court and court directed that family members do meet and agree.

11. THAT:- upon  meeting  and minutes  taken  the mode  of  distribution  agreed  upon. (Attached and marked GTK 5 is a copy of the minutes of the meeting).

12. THAT: - On September, 2015 we filed summons for confirmation of grant. (Attached and marked GTK 6 is a copy of the summons for confirmation of Grant.)

13. THAT: - the applicants were all along made aware of the hearing dates for confirmation of grant.  (Attached and marked GTK 7 is a copy of the Return of Service.)

14. THAT: - it is untrue that the applicants were not made aware of the summons for confirmation of grant.

15. THAT: - the court proceeded to confirm the grant as per the terms in the minutes.”

4. The application was with consent of the parties urged by way of written submissions filed in court.  In the submissions by the Applicants case was simply made for the alignment of the terms of the Confirmed Grant with the agreement by family members on distribution as follows:

“Your Lordship

The minutes  marked  as exhibit  GTK5 of the affidavit  sworn  by the Respondent  on the 4th  February  2019 on the mode  of distribution  does not  tally  with the confirmation  of grant  issued  by  this honorable  court  on the 8th  November  2018.

Your Lordship

The mode  of distribution was agreed  amongst  the family and if was  wrong  for  the Respondent to proceed  to confirm  the grant  to suit  her without  considering  the meeting  that the family  agreed  on the mode  of  distribution.”

5. For the Administrators, the respondents’ submissions urged that the distribution was fair and equitable as follows:

“iii) Whether the mode of distribution of the estate of the deceased was not fair and equitable.

Your  Lordship  on this issue we submit that the distribution  of the estate  was done  in consultation  with the applicants  contrary  to the applicants  contention  that they  were not  consulted  prior  to the distribution  and further  your Lordship that the  same is  not fair  and equitable  and is oppressive  or against  the interest  of the applicants.

Your  Lordship  a meeting  was held  and all parties  were involved, the allegations  by  the applicant  that the said  distribution  was not fair  are untrue  as per minutes  dated  1st November, 2017 where  an agreed  mode of  distribution  allocated  the applicant  herein a larger portion of  the estate  of the deceased.

Your Lordship the applicant  has failed  to inform  the court  of the same  and  the fact  as per attached  certificate   of confirmation  of grant dated  10. 01. 2019 the applicant  herein  was allocated  a larger  share  of the estate. The  applicants  has failed  to  demonstrate   that the distribution  of the  estate  was not fair  equitable  and is  oppressive  against him and we submit  that the same  should not be used  as a ground  to revoke  the grant.”

6. According to the Minutes of the family meeting of 1/11/2017 put forward by both parties to the application, the Estate of the deceased fell to be distributed as follows:

“Grace and Others- 18 acres

Kipkochoi and family – 41 Acres

Marai, Tungo Titomet and Others – 5 Acres.”

7. Conversely, the Confirmed Grant made on 15th January 2019 directed the distribution of the Estate as follows:

“1. Grace Tungo Kiptoo 28 acres of Pokor/Keben/Mugurin/10 (26. 0 ha.) to share with Tungo Cheruiyot,Serina Tungo Cheriut, Tungo Chereon, Tongo Lonyako (equal shares).

2. Kipkochor Kiptoo 36 acres of Pokor/Keben/Mugurin/10 (26. 0 ha.) to share with John Kiptoo, Maria Kiptoo, Rebecca Titiomet, Esther Kiptooand May Kiptoo.”

8. While section 40 of the Law of Succession Act provides for intestate distribution of the estate of a deceased person where the intestate was polygamous it does not preclude an agreement as to distribution by the beneficiaries of the deceased.  Indeed, Rule 40 (8) of the Probate and Administration Rules provides that “where no affidavit of protest to the application for confirmation of Grant has been filed, the summons and affidavit shall without delay by placed by the Registrar before the court by which the grant was issued which may on receipt of a Consent in Form 37 of all dependants, or other persons who may be beneficially entitled, allow the application without the attendance of any person…”

9. Having considered the affidavit evidence before the court, I find on a balance of probabilities that the Applicants were at all times aware of the succession proceedings on the Estate of their deceased father and that they, therefore, have not proved that the Confirmed Grant was obtained by fraud as alleged by the applicants.

10. However, it is established by the evidence presented by the Applicants and the Respondents that the Confirmed Grant did not reflect the distribution agreement reached between the family members involving the two households of the deceased as set out in the Minutes of the family meeting attached to the Replying Affidavit of the Respondents in opposition to the application for revocation. No explanation was given for the departure from the distribution agreement of the family members and certainly no consent for the new distribution proposal was given to the court to warrant the confirmation of the Grant in terms other than agreed in the family meeting.

Orders

11. The Confirmed Grant herein issued on 15th January 2019 is revoked and substituted with a Grant confirmed in terms as agreed by the family members as shown in the Minutes of the Family Meeting of 1/11/2017 as follows:

“Grace and Others- 18 acres

Kipkochoi and family – 41 Acres

Marai, Tungo Titomet and Others – 5 Acres.”

12. A fresh Confirmed grant shall be issued for the distribution of the estate of the deceased in terms as aforesaid.  The Administrators shall for that purpose prepare and file with the Court a Schedule of Distribution which accords to the said Agreement of the members of the family meeting of 1st November 2017.

13. The court gives parties liberty to apply, if necessary, for purposes of giving effect to this distribution orders according to the agreement of the family members as aforesaid.

Costs

14. Although the Applicants have been successful on the point of divergent terms of distribution from the terms agreed between the beneficiaries and family members of the deceased, they have failed to establish the other grounds for seeking revocation of the confirmed grant and the court shall, therefore, make no order as to costs.

Order accordingly.

DATED AND DELIVERED THIS 17TH DAY OF SEPTEMBER 2019.

EDWARD M. MURIITHI

JUDGE

Appearances:

M/S Ochweri, Ngamate & Co. Advocates for the Applicants.

M/S Martim & Co. Advocates for the Respondents.