Case ID:170183

In re Estate of Martha Byebei (Deceased) [2020] eKLR

Case Metadata

Case Number:

Succession Cause 93 of 2002

Parties:

In re Estate of Martha Byebei (Deceased)

Date Delivered:

18 Sep 2020

Case Class:

Civil

Court:

High Court at Bomet

Case Action:

Ruling

Judge(s):

Asenath Nyaboke Ongeri

Citation:

In re Estate of Martha Byebei (Deceased) [2020] eKLR

Court Division:

Family

County:

Bomet

Case Outcome:

Application allowed.

Disclaimer:

The information contained in the above segment is not part of the judicial opinion delivered by the Court. The metadata has been prepared by Kenya Law as a guide in understanding the subject of the judicial opinion. Kenya Law makes no warranties as to the comprehensiveness or accuracy of the information

REPUBLIC OF KENYA

IN THE HIGH COURT AT BOMET

SUCCESSION CAUSE NO.93 OF 2002

IN THE MATTER OF THE ESTATE OF MARTHA BYEBEI (DECEASED)

AND

IN THE MATTER OF PAUL KITONU LANGAT & ELIJAH CHERUIYOT LANGAT

RUCY CHEBORE KIPKEINO...............1

ST

OBJECTOR/APPLICANT

KIPRONO LANGAT A.K.A

FRANCIS

LANGAT.................................2

ND

OBJECTOR/APPLICANT

VERSUS

RAELI CHEPNGETICH LANGAT..............................1

ST

PROTESTOR

RULING

1. The Application coming for consideration in this ruling is the one dated 13/3/2019 seeking the following orders;

i) The Honourable Court do hereby certify this application as of utmost urgency and service be dispensed with in the first instance(spent).

ii) The Honourable Court be pleased to issue an Order of Temporary Injunction restraining the respondent, her servants, agents, representatives, relatives and heirs from constructing permanent structures on land parcel

No.KERICHO/SOSIOT/1811

measuring 3.2 Ha and or alienating, selling, transferring and or distributing amongst themselves the land known as

KERICHO/SOSIOT/1811

measuring 3.2 Ha or doing any act that will prejudice the interest of the beneficiaries pending the hearing and determination of this application interpartes.

iii) The Honourable Court be pleased to issue an Order of Temporary Injunction restraining the respondent, her servants, agents, representatives, relatives and heirs from constructing permanent structures on land parcel

No.KERICHO/SOSIOT/1811

measuring 3.2 Ha and or alienating, selling, transferring and or distributing amongst themselves the land known as

KERICHO/SOSIOT/1811

measuring 3.2 Ha or doing and act that will prejudice the interest of the beneficiaries pending the hearing and determination of this application interpartes.

iv) In the alternative to pray No.2 above, the Honourable Court be pleased to issue an Order for Status quo to be maintained as of now to preserve the estate and wastage of the estate pending the hearing and determination of this application interpartes.

v) The Honourable Court be pleased to issue an Order to include

RUCY CHEBORE KIPKEINO

as co-adminstratix to the estate of

MARTHA TAPRUNO BYEBEI [DECEASED]

to prevent any mismanagement by my co-wife

RAELI CHEPNGETICH LANGAT

on behalf of our late husband/2

nd

petitioner herein

ELIJAH CHERUIYOT LANGAT

and other beneficiaries.

vi) The Honourable Court be pleased to issue any other remedy and or order that is fit and just grant for the benefit of the beneficiaries and preservation of the estate of

MARTHA TAPRUNO BYEBEI

.

vii) Costs of this application provided for.

2. The Application is supported by the Affidavit of

RUCY CHEBORE KIPKEINO

dated 13/3/2019 in which she deposed as follows;

i)

THAT

her husband

ELIJAH CHERUIYOT LANGAT (now deceased)

and her brother-in-law

PAUL KIPTONUI LANGAT

took letters of administration of the Estate of

MARTHA TAPRUNO BYEBEI

(

the deceased herein

) who died on 21/2/2002.

ii)

THAT

the certificate of confirmation has not been issued yet some of the beneficiary and especially her co-wife who is the Respondent

(RAEL CHEPNGETICH)

I have started intermeddling with

parcel No.Kericho/Sosiot/1811

.

iii)

THAT

she is praying for an order to preserve the Estate and to be included as an administratrix of the Estate since her husband has since passed away.

iv)

THAT

she will administer the Estate of the deceased fairly and equally distribute it to the beneficiaries.

3. The 1

st

petitioner

PAUL KIPTONUI LANGAT

filed a Replying Affidavit dated 29/4/2019 in which he deposed as follows:

i)

THAT

he was in the process of obtaining a certificate of confirmation when the objector objected to the same.

ii)

THAT

land parcel Kericho/Sosiot/1811 belongs to him as the objectors were given land at Soin which they sold and came back to Kericho/Sosiot and he gave them a share.

iii)

THAT

the Application dated 13/3/2019 should be dismissed and the 1

st

petitioner be allowed to proceed with the summons for confirmation.

iv)

THAT

1

st

petitioner is seeking to administer the Estate of his mother alone since 2

nd

petitioner has since died.

v)

THAT

the Applicant has no right to administer his mother’s Estate.

4. The parties filed written submissions dated 13/11/2019 and 28/7/2020 respectively which I have duly considered. The deceased herein,

MARTHA TAPRUNO BYEBEI LANGAT

(deceased) died intestate on 21/2/2002 leaving behind the following beneficiaries:

i) KIPRONO LANGAT – SON

ii) ELIJAH LANG – SON (NOW DECEASED)

iii) PAUL K. LANGAT - SON

5. The deceased left one asset,

LR KERICHO/SOSIOT/1811

(here after referred to as the suit property.)

6. The 1

st

petitioner

PAUL KIPTONUI LANGAT and ELIJAH CHERUIYOT

(now deceased) were issued with letters of Administration on 22/4/2005 and the same has not been confirmed.

7. I find that the certificate of official search shows that the suit property is registered in the name of the deceased herein. The 1

st

petitioner and the Respondent have no basis to say that the 1

st

petitioner inherited the suit property from the deceased.

8. On the issue as to whether an injunction should issue. The conditions for consideration in granting an injunction are now well settled in the case of

Giella vs Cassman Brown & Company Limited (1973) E A 358,

where the court expressed itself on the conditions that a party must satisfy for the court to grant an interlocutory injunction as follows: -

"First, an applicant must show a prima facie case with a probability of success. Secondly, an interlocutory injunction will not normally be granted unless the applicant might otherwise suffer irreparable injury, which would not adequately be compensated by an award of damages. Thirdly, if the Court is in doubt, it will decide an application on the balance of convenience."

9. The Application dated 13/3/2019 be and is hereby allowed pending the confirmation of grant herein in the following terms:

i) THAT the Respondent be and is hereby restrained from constructing permanent structures on land parcel KERICHO/SOSIOT/1811 and/or alienating, selling, transferring and/or distributing the said parcel pending confirmation of grant.

ii) THAT the beneficiaries to appoint another Administrator to replace the late ELIJAH CHERUIYOT LANGAT (now deceased).

iii) THAT the death certificate for ELIJAH CHERUIYOT LANGAT (now deceased) to be availed.

iv) THAT each party to bear its own costs of this Application.

v) Mention on 28/9/2020 for compliance.

Delivered, dated and signed at Kericho this 18

th

day of September 2020.

A. N. ONGERI

JUDGE