In re Estate of the Late Ernest Kipkoech Too (Deceased) [2023] KEHC 27048 (KLR)

In re Estate of the Late Ernest Kipkoech Too (Deceased) (Succession Cause 6 of 2020) [2023] KEHC 27048 (KLR) (14 December 2023) (Ruling)

Neutral citation: [2023] KEHC 27048 (KLR)

Republic of Kenya

In the High Court at Kericho

Succession Cause 6 of 2020

JK Sergon, J

December 14, 2023

IN THE MATTER OF THE ESTATE OF THE LATE ERNEST KIPKOECH TOO (DECEASED)

Between

Penina Nyambura Too

Petitioner

and

Moses Ngeno

1st Administrator

Livingstone Kipkorir Koech

2nd Administrator

Roda Chelangat Too

3rd Administrator

Ruling

1. The subject matter of this ruling is the summons for confirmation of Grant in respect of the Estate of the Late Ernest Kipkoech Too, deceased dated 4th July, 2022 taken out by the 1st, 2nd and 3rd Administrators.

2. Moses Ngeno, the Objector herein filed an Affidavit of Protest to oppose the Summons. When the summons came up for hearing, it became apparent that the main issue in dispute is the mode of distribution. Parties were directed to file their modes of distribution plus written submissions.

3. I have considered the modes of distribution and the written submissions filed by the Protestor and the Petitioner/Administrators. The Assets, the Liabilities and beneficiaries of the Estate of Ernest Kipkoech Too, deceased were identified and not disputed. The Petitioner and 2nd Administrator identified assets and liabilities of the Estate at the time of the deceased’s demises as follows :a.Assets (Remained of Kericho/Kaptebengwet/38)i.Kericho/Kaptebengwet/446 – in the name of the deceased.ii.Kericho/Kaptebengwet/451 – in the name of the deceasediii.Kericho/Kaptebengwet/450 – allegedly transferred by the deceased as a gift to Wilson Koech, son of the 3rd wife and is contested by the 2nd House.iv.Kericho/Londiani/Kedowa Block 3/65 – in the name of the deceased.v.Kericho/Londiani/Kedowa Block 3/67 – in the name of the deceased.vi.Plot No.8 at Kaptebengwet Market.b.Shares (in the name of the deceased)i.Kiwoto Farmers’ Co-operative Society Limitedii.Co-operative Bank of Kenya Limitediii.National Bank of Kenya Limitediv.Kenya Commercial Bank of Kenya Limitedv.Kenya Tea Development Agency Limitedvi.Kenya Armed Forces Old Comred Association.

4. The Petitioner and 2nd Administrator further stated that the deceased was married to three (3) wives.i.Catherine Too - 1st Wife (Deceased).ii.Peninah Nyambura Too - 2nd Wife.iii.Rhoda Chelangat Too - 3rd Wife.

5. The Petitioner and 2nd Administrator filed the following mode of distribution.a.Kericho/Kaptebengwet/446, 2 Acres to go to Peninah Nyambura Too.b.Kericho/Kaptebengwet/451, 7 Acres to go to Peninah Nyambura Too.c.Kericho/Londiani/Kedowa Block 3/65, 9. 51 Acres to go to Rhoda Too.d.Kericho/Londiani/Kedowa/ Block 3/67, 5. 681 Acres to go to Rhoda Too.e.Shares in Kiwoto Limited to be transmitted to Peninah Nyambura Too.f.Shares in Co-operative Bank Ltd to be sold and shared equally between the 2nd & 3rd House.g.Shares in KTDA Ltd to be sold and shared equally between the 2nd & 3rd Househ.Shares in the Armed Forces Old Comrades Association (KEFOCA) to be sold and shared equally between the 2nd & 3rd House.

6. The Petitioner and 2nd Administrator further proposed to the Court to adopt the surveyor’s report which report was prepared in Compliance with the Court’s Order to re-survey the Parcel of Land known as Kericho/Kaptebengwet/38 and Order for the final and full distribution of the Estate of Ernest K. Too andS/NO. Title No/surveyed Portion Hactares Court Order

1 On the ordered re-survey of Kericho/Kaptebengwet/38, the Surveyor recovered a portion of land measuring 1. 1134 hectares (2. 75 Acres) from portions of land previously sold by the deceased in Kericho/Kaptebengwet/449, 372, 373, 447 and 448 respectively. The buyers took advantage of the vast age and poor health of Ernest Too (deceased) and manipulated surveyors to their advantage. 1. 1134 This portion measuring 1. 1134 hectares be consolidated with Kericho/Kaptebengwet/450 and be transmitted to Peninah Nyambura Too absolutely.

2 Kericho/Kaptebengwet/450The title deed for Kericho/Kaptebengwet/450 registered in the name of Wilson Koech be deemed as the matrimonial home of the 2nd widow of the deceased having lived in the farm for more than sixty years. The Honourable Court to make any order and or give directions (of transfer) in regards to this title deed which is doubted as having been gifted to Wilson Kipngeno Koech, the son of the 3rd House by the deceased. 1. 58 That Kericho/Kaptebengwet/450 be transferred absolutely to Peninah Nyambura Too

3 Kericho/Kaptebengwet/449This parcel was found to be bigger in size than what was sold to Dominic Kirui by Ernest Too (Deceased) 3. 5786 That as per the Filed Survey Report dated 21/10/2021, the Department of survey and Register in the Lands Office be amended to reflect the true acreage as sold by the deceased, that is, 1. 1134 Hectares. The Land to remain in the name of the current registered owner, Dominic Kirui

4 Kericho/Kaptebengwet/372 – 3. 1118 Hac.Kericho/Kaptebengwet/373 – 0. 4568 Hac. 3. 5786 That as per the Filed Survey Report dated 21/10/2021, the Department of survey and Register in the Lands Office be amended to reflect the true acreage as sold by the deceased,that is 3. 5786 (consolidated). The parcels of land measuring 3. 1118 & 0. 4568 hectares respectively to remain in the names of current owners namely: Arap Sinei, Joseph Cheruiyot & Reuben K. Ngeno

5 Kericho/Ka ptebengwet/447 0. 7568 That as per the Filed Survey Report dated 21/10/2021 the Department of Survey and Register in the Lands Office be amended to reflect the true acreage as sold by the deceased, that is, 0. 7568 hectares. The parcel of land measuring 0. 7568 hectares. The parcel of land measuring 0. 7568 hectares to remain in the name of the current owner, Philomena Bosibori Koech

6 Kericho/Kaptebengwet/448 0. 4760 That as per the Filed Survey Report dated 21/10/2021, the Department of Survey and Register in the Lands Office be amended to reflect the true acreage as sold by the deceased, that is, 0. 4760 hectares. The parcel of land measuring 0. 4760 hectares to remain in the name of the current registered owner, Reuben K. Ngeno.

7. On her part, Roda Chelangat Too, the 3rd Administrator opposed the mode of distribution by the 2nd Administrator and instead proposed for the Estate of Ernest Kipkoech Too, deceased to be distributed as follows:-i.2nd House, (Peninah Nyambura to hold in trust(a)Kericho/Kaptebengwet/446 – 2. 0 Acres(b)Kericho/Kaptebengwet/451 – 7. 0 Acres.ii.3rd House (Rodah Chelangat Too to hold in trusta.Kericho/Londiani/Kedowa Block 3/65 – 8. 26 Acresb.Kericho/Londiani/Kedowa Block 3/67 – 3. 681 Acresiii.1st, 2nd & 3rd Houses – Sharesa.Kiwoto Society Farm, Co-operative Bank Ltd, KTDA td, Armed Forces Old Comrades Association – All to be sold and the proceeds be shared equally between the 1st, 2nd & 3rd Houses.ii.Festus Kiplangat Koech – ID No.[particulars withheld]a.Kericho/Londani/Kedowa Block 3/67 – 0. 75 Acres.iv.James Kipyegon Kenduiywa – ID. No.5961268a.Kericho/Londiani/Kerowa Block 3/65 – 0. 5 Acresv.Recovered 2. 75 Acres from re-survey of Kericho/Kaptebengwet/38a.To be shared equally among the 3 houses (0. 9 Acres eachvi.That the Land Parcel No.Kericho/Kabtebengwet/450 does not belong to the deceased. See the official search and court Order Marked as annexture “RT 1 A & B respectively.

8. One Bernard Chepkwony, who referred himself as an Objector stated that he was opposed to the mode of distribution proposed by the 1st and 2nd Administrators for the reason that they failed to disclose the beneficiaries of the 1st house and instead proposed to have the Estate of Ernest Kipkoech Too, deceased to be distributed as follows:-(i)2nd House (Peninah Nyambura To Hold Absolute)(a)Kericho/Kaptebengwet/456 – 2. 0 Acres(b)Kericho/Kaptebengwet/451 – 7. 0 Acres(ii)3rd House (Roda Chelangat Too Hold Absolute)a.Kericho/Londiani/Kedowa Block 3/65 – 8. 26 Acresb.Kericho/Londiani/Kedowa Block 3/67 – 3. 681 Acresiv.1st, 2nd & 3rd Houses Sharesa.Kiwoto Society Farm, Co-operative Bank Limited, KTDA Limited, Armed Forces Old Comrades Association – All to be sold and the proceeds be shared equally between the 1st, 2nd and 3rd Houses and that Moses Ngeno & Benard Chepkowy (both) do hold in trust for the 1st House.v.Festus Kiplangat Koech – ID NO.[particulars withheld]a.Kericho/Londiani/Kedowa Block 3/67 – 0. 75 Acres (Absolute)vi.James Kiplangat Kenduiwa – ID NO.[particulars withheld]a.Kericho/Londiani/Kedowa Block 3/67 – 2. 0 Acres (Absolute)vii.David Cheruiyot Tuei – ID NO.[particulars withheld]a.Kericho/Londiani/Kedowa Block 3/65 – 0. 5 Acres.viii.Recovered 2. 75 Acres From Re-survey Of Kericho/kaptebengwet/38a.To be shared equally among the 3 Houses (0. 9 Acres Each) and that Moses Ngeno & Benard Chepkwony both do hold in trust for the 1st House)ix.That the land parcel Kericho/Kaptebengwet/450 does not belong to the deceased.

9. The Objector further averred that LR No.Kericho/Kaptebengwet/450 does not belong to the Estate.

10. Having considered the rival submissions plus the competing proposals on distribution, it is clear from the evidence tendered that LR No. Kericho/Kaptebengwet/450 no longer forms part of the Assets of the Estate of Ernest Kipkoech Too, deceased. It is apparent that the aforesaid Parcel was on 15th May, 1999 transferred registered in the name of Wilson Kipngeno Koech. There is no evidence that any party has successfully challenged the validity of the aforesaid title. The invitation to this Court to have the title invalidate through these proceedings cannot stand. It cannot therefore be deemed as the Estate Property. The aforesaid parcel is therefore not available for distribution. Therefore the proposal by the Petitioner and 2nd Administrator to have LR No. Kericho/Kaptebengwet/450 distributed is not tenable.

11. From the Affidavit evidence of Peninah Nyambura Too, it is apparent that the Estate Land known as LR No. Kericho/Kaptebengwet/38 was subdivided into four parcels Namely:- Kericho/Kaptebengwet/306

Kericho/Kaptebengwet/307

Kericho/Kaptebengwet/308

Kericho/Kaptebengwet/309

12. Peninah Nyambura Too further averred that the deceased allocated to her Kericho/Kaptebengwet/308. She also averred that parcel No. Kericho/Kaptebengwet/306 was subdivided into 3 parcels Namely:- Kericho/Kaptebengwet/446

Kericho/Kaptebengwet/447

Kericho/Kaptebengwet/448

13. She further stated that LR No. Kericho/Kaptebengwet/447 was allocated by the deceased to Rhoda Chelangat Too, the deceased’s 3rd wife. She also averred that LR No. Kericho/Kaptebengwet/307 was subdivided into two parcels Namely:- Kericho/Kaptebengwet/372.

Kericho/Kaptebengwet/373.

14. The Petitioner and 2nd Administrator stated that the deceased sold the aforesaid parcels i.e. Kericho/Kaptebengwet/372 and Kericho/Kaptebengwet/373 and moved the 3rd wife and her children to Londiani in 1986 where they have settled since then.

15. This Court has considered the rival proposal on the distribution in respect of the Estate of the Late Ernest Kipkoech Too and I find that the rival proposals on distribution do not agree. This Court having considered the competing proposals plus the Law of Succession has come to the conclusion that it is fair and just for the Estate of Ernest Kipkoech Too, deceased to be distributed as follows:-(i)(a)LR No. Kericho/Kaptebengwet/446}(b)LR No. Kericho/Kaptebengwet/451}To be transmitted and registered in the name of Peninah Nyambura Too for her own benefit and to hold trust for benefit of the 2nd house.(ii)(a)LR No. Kericho/Londiani Block 3/65 }(b)LR No. Kericho/Londiani Block 3/67}To be transmitted to Rhoda Chelangat Too for her own benefit and to hold in trust for the benefit of the 3rd house.(iii)The shares of the deceased in companies and various Societies namely:- Kiwoto Society Farm Limited, Co-operative Bank Limited, KTDA Limited, Armed Forces Old Comrades Association (KEFOCA) be sold and shared equally between the three (Houses) and that Moses Ngeno and Bernard Chepkwony do hold in trust of members of 1st House.(iv)(a)The 2. 75 Acres recovered from the re-survey of Kericho/Kaptebengwet/38 to be shared equally amongst the 3 houses i.e. 0. 9 Acres to each house.(b)Moses Ngeno and Bernard Chepkwony to hold in trust for the 1st House.

16. Consequently, the Grant be confirmed and distribution be done as indicated hereinabove. Each party to bear their own costs.

DELIVERED, SIGNED AND DATED AT KERICHO THIS 14TH DAY OF DECEMBER 2023. J.K. SERGONJUDGEIn the presence of:-C/Assistant - RutohNo Appearance for the Parties