Case ID:174875

In re Estate of Kiptui Cheboi (Deceased) [2021] eKLR

Case Metadata

Case Number:

Succession Cause 313 of 2006

Parties:

In re Estate of Kiptui Cheboi (Deceased)

Date Delivered:

03 May 2021

Case Class:

Civil

Court:

High Court at Eldoret

Case Action:

Judgment

Judge(s):

Olga Akech Sewe

Citation:

In re Estate of Kiptui Cheboi (Deceased) [2021] eKLR

Court Division:

Family

County:

Uasin Gishu

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 OF KENYA

AT ELDORET

SUCCESSION CAUSE NO. 313 OF 2006

IN THE MATTER OF THE ESTATE OF KIPTUI CHEBOI (DECEASED)

IN THE MATTER OF AN APPLICATION FOR REVOCATION OF GRANT

BETWEEN

NICHOLAS KIPNGETICH KIPTUI.................................................................PETITIONER

-AND-

JOSEPH KIMUTAI KIPTUI.........................................................................1

ST

APPLICANT

SOPHIA JEBIWOTT KIPTUI.......................................................................2

ND

APPLICANT

ALICE JEROTICH KIPTUI............................................................................3

RD

APPLICANT

JUDGMENT

[1]

The Summons for Revocation of Grant dated

18 February 2008

was filed herein by the three applicants, who are siblings, through the law firm of

M/s Anassi Momanyi & Company Advocates.

It was brought pursuant to

Section 76

of the

Law of Succession Act

and

Rule 44

of the

Probate and Administration Rules

for orders that:

[a]

Spent

[b]

The Grant of Letters of Administration issued on

8 May 2007

and confirmed on

17 December 2007

be revoked;

[c]

Spent

[d]

That the costs of the application be provided for.

[2]

The application was premised on the grounds that the proceedings to obtain the grant were defective in substance; that the grant was obtained through concealment of material facts; and that there are proceedings pending in

Eldoret P&A Cause No. 319 of 2004

over the same estate of the deceased. In support of the application the applicants relied on their respective affidavits, sworn on

18 February 2008

. Thus, the 1

st

applicant,

Joseph Kimutai Kiptui

, averred that he is a son to the deceased,

Kiptui Cheboi

; and that his late father was also known as

Kiptui Maluei

. He further averred that there are in existence two Succession Causes in respect of the same estate, namely

Eldoret High Court P&A Cause No. 319 of 2004,

which they filed as children of the deceased; and the instant cause, which was subsequently filed by their uncle,

Nicholas Kipngetich Kiptui,

who also is the respondent in the instant application.

[3]

It was therefore the assertion of the 1

st

applicant that the instant cause ought not to have been filed; and, therefore, that the grant issued herein ought to be revoked on the ground that it was fraudulently obtained. He denied that the deceased sold a portion of the estate property to

Benjamin K. Kandie

who is listed herein as a beneficiary. The same averments are to be found in the affidavits of the 2

nd

and 3

rd

applicants, which affidavits were word for word replications of the 1

st

applicant’s affidavit.

[4]

In response to the application, the petitioner/respondent relied on his Replying Affidavit, sworn on

11 March 2008

. He denied that

Kiptui Cheboi,

the deceased herein, was also known as

Kiptui Maluei.

He explained that the late

Kiptui Maluei

was his father; and that he married two wives, namely,

Kabon Kiptui

and

Sote Kiptui.

The respondent further averred that

Kabon Kiptui

, who is now deceased, gave birth to only one child, namely

Kiptui Cheboi;

and that the said

Kiptui Cheboi

died on

25 September 1973

. He added that

Sote Kiptui

, who is his mother, was still alive when the deposition was made; and that she was blessed with 7 children. He thus denied that

Kiptui Maluei

is the same person as

Kiptui Cheboi.

[5]

Regarding the estate of his deceased father,

Kiptui Maluei

, the respondent averred that as early as

10 October 1993

, the family was in mutual agreement that land parcel number

MOSOP/MOSOP/46

be shared equally between him and his nephew

Michael Kipchirchir Kiptui

; and that it was pursuant to the resolutions of that family meeting that they filed this cause. As for

Benjamin Kandie

, the respondent averred that he had earlier purchased a portion of the estate property from

Joseph Kimutai Kiptui

, (the 1

st

applicant) and therefore that it is hypocritical for the 1

st

applicant to now deny the transaction. Thus, the respondent asserted that this cause is in respect of a totally different estate from the estate in

Eldoret High Court P&A 319 of 2004

; and therefore that the application is misconceived.

[6]

The respondent also relied on the affidavit of

Benjamin K. Kandie

, sworn on

11 March 2008. Benjamin K. Kandie

averred that he purchased a portion of land parcel number

MOSOP/MOSOP/46

from one

John Barmao Chebii

who had purchased the same from

Joseph Kimutai Kiptui;

Nicholas Kipngetich Kiptui

and

Michael Kipchirchir Kiptui

; and that he has been residing on the said parcel of land ever since. He therefore prayed that the instant application be disallowed.

[7]

Granted the nature of the dispute and the Court Order calling for investigations by the CID of the allegations of fraud, this matter proceeded by way of

viva voce

evidence. Directions were accordingly given on

9 February 2015

for the filing of witness statements and documents with a view of expediting the hearing of the 10 or so witnesses that the parties had lined up. Thus, when hearing commenced in earnest on

15 June 2015,

the 1

st

applicant,

Joseph Kimutai Kiptui,

testified as

PW1

and adopted his witness statement filed on

15 June 2015

. He stated that he is the son of the deceased,

Kiptui Cheboi

; who was also known as

Kiptui Maluei

; and that the deceased died intestate in

1973

. He asserted that, since there was already in existence

High Court P&A Cause No. 319 of 2004,

this particular cause,

High Court P&A Cause No. 313 of 2006

, ought not to have been filed; let alone by the petitioner,

Nicholas Kipngetich

Kiptui

, who is his uncle. It was further the testimony of

PW1

that the deceased owned two properties, namely,

Kaptagat/Kaptagat Block 2 (Mosop) 46

and

Mosop/Chepkorio/75

; and that he was survived by the following sons and daughters:

[a] Joram Kipkoech Kiptui

[b] Joseph Kimutai Kiptui

[c] Michael Kipchirchir Kiptui

[d] Sophia Jebiwott Kiptui

[e] Alice Jerotich Kiptui

[8] PW1

was categorical that the deceased died intestate, and therefore that his estate ought to be distributed amongst his sons and daughters. He added that if anybody bought land from the sons of the deceased then they should claim their respective interests from those particular individuals. Regarding the inheritance of the respondent,

PW1

testified that a family meeting was held in

1993

in which it was agreed that since their grandfather left no property, he be accommodated by the family of his step-brother, the deceased. They accordingly agreed to give him a portion of the deceased’s land to live on. Hence,

PW1

acknowledged that the respondent ought to be given a share of the estate of his father; but contends that he had no right to file this cause for that purpose. In his view, the distribution of the estate of the deceased herein can still be tackled in

Eldoret High Court P&A Cause No. 319 of 2004

. He also complained that the respondent included the names of strangers to this cause and yet excluded the rightful beneficiaries of the deceased. It was on that account that he prayed for the revocation of the grant issued herein to the respondent.

[9]

The evidence of

PW1

was echoed by his sister,

Sophia Jebiwott Kiptui (PW3)

; namely, that their father died in

1973

and was survived by 5 children. She also confirmed that the respondent is their uncle. The applicants also called

CI Mutiso Kioko (PW2)

as a witness in connection with the investigations conducted by him while he was serving as the

DCIO, Keiyo.

PW2

confirmed that he was required, by an order of the Court (

Hon. Ibrahim, J.,

as he then was), to conduct investigations to establish the true position in respect of two deceased persons, namely,

Kiptui Maluei

and

Kiptui Cheboi

. He testified that, having conducted his investigations, he established that

Kiptui Cheboi Arap Maluei

died on

25 September 1973;

while

Cheboi Kiptui

died on

28 September 1998

; and that the two were father and son. He therefore denied that the two names belong to one and the same person. He prepared a report which he produced herein as

Exhibit 1.

[10]

On his part, the respondent testified on

15 July 2019

as

DW1

. He adopted his witness statement dated

2 June 2015

. He confirmed that the deceased herein,

Kiptui Cheboi

, was his step brother, and that they are the sons of

Kiptui Maluei

who was the owner of

Land Parcel

No. 75.

The respondent further conceded that

Land Parcel No. 46

, belongs to the estate of

Kiptui Cheboi

. He confirmed that

Kiptui Cheboi

died on

25 September 1973;

and added that his father,

Kiptui Maluei,

died of old age on

23 September 1988

at his son’s home in

Beliomo Farm.

He told the Court that his father was survived by two widows, namely:

Kabon Kobot Kiptui

who was the 1

st

wife and mother of the deceased herein; and the 2

nd

wife,

Soti Kiptui,

who was his mother. Both widows are since deceased.

[11]

The respondent further testified that, since the death of

Kiptui Cheboi

in

1973,

the family had to contend with friction between his mother and her co-wife, particularly over the occupation and use of

Land Parce No. 75

; and that the disagreements degenerated into outright hatred that forced members of the 2

nd

house to move away from the property to settle on a piece of purchased property, which he referred to as

Plot No. 54.

The respondent further stated that no less than 30 dispute resolution meetings were called by the family with the help of the local administrators; which meetings were attended by neighbours as well, with a view of resolving the impasse over the estate of

Kiptui Maluei

, to no avail. He singled out the family meeting of

20 October 1993

in which it was resolved that

Land Parcel No. 75

be shared equally between the 1

st

applicant herein and

Joram Kipkoech Kiptui;

while

Plot No. 46

would be shared between him and

Michael Kipchirchir Kiptui.

He concluded his evidence by stating that, it was on the basis of this family understanding that he sold his portion of

Land

Parcel No. 46

to

John Barmao Chebii

; and that, thereafter,

Michael Kipchirchir Kiptui

also sold a portion his share to the same

John Barmao Chebii.

[12]

Regarding the filing of this Cause, the respondent explained that, since the family was in agreement on distribution, he obtained a letter from the area chief authorizing him to institute the cause with a view of having his share transmitted to the purchaser. He pointed out that the children of

Kiptui Cheboi

were all aware of the institution of these proceedings, and therefore have no basis for objecting thereto. He accordingly asked for the dismissal of the instant application for Revocation of Grant. The respondent produced Minutes of the family meeting of

20 October 1993

as

Exhibit No. 1

as well as a copy of the chief’s letter, whose original is on the file.

[13]

The respondent called his nephew,

Michael Kipchirchir Kiptui

as

DW2.

DW2

confirmed that the deceased was his father and that the applicants are his siblings. He adopted, as his evidence in chief, his witness statement dated

12 June 2015

; wherein he stated that

Kiptui Maluei

was his grandfather; and that the deceased was the only son of

Kiptui Maluei

by his first wife,

Kobot Kangogo

. He therefore conceded that his deceased father was a step-brother to the respondent herein; and therefore that the respondent is his uncle.

[14] DW2

reiterated the evidence of the respondent that a family meeting was held in

1993

in which it was agreed that

Land Parcel No. 75

be shared amongst

Joseph, Joram

and

Sophia

; and that

Land Parcel No.46

be shared equally between himself and the respondent. According to him, his sister,

Alice,

was to receive

Plot No. 30

at

Chepkorio Centre

along with shares at

Chepkorio House

. He further testified that when they decided to sell their shares in

Land Parcel No. 46

, they again consulted the family members; and it was with their consent and approval that a sale agreement was drawn in favour of

Mr. Chebii

. Thus, it was the evidence of

DW2

that he supported the respondent’s version and opposed the application filed by his siblings because the estate property had been distributed with the approval of all the family members; and therefore that there is no cause for complaint by any family member.

[15]

The third witness for the petitioner was

Helena Malakwen Kiptui,

the sister of the respondent and daughter of

Kiptui Maluei

. She confirmed that

Land Parcel No. 46

is registered in the name of her brother,

Kiptui Cheboi

. She was categorical that the respondent is not the son of

Kiptui Cheboi

, the deceased herein, but a brother to the deceased. She confirmed, in cross-examination that the deceased was survived by his 5 children,

Joram, Joseph, Chebiwot, Cherotich

and

Michael. DW3

also confirmed that there was a family meeting in which the entire family of

Kiptui Maluei

agreed on how the estate of the two deceased persons would be shared.

[16] John Barmao Chebii

testified as

DW4

. He, likewise, adopted his witness statement dated

12 June 2015

. His evidence was basically that, on

15 August 1995

, he bought a portion of the piece of land known as

Kaptagat/Kaptagat Block 2 (Mosop) 046.

He added that the transaction was between him and the respondent,

Nicholas Kipngetich Kiptui

and was made with the consent of the sons of the deceased herein, namely:

Joseph Kimutai Kiptui, Michael

Kipchirchir Kiptui

and

Joram Kipkoech Kiptui

. He produced the land sale agreement as an exhibit and added that the portion he bought, measuring 5 acres, was the share of the respondent,

Nicholas Kipngetich Kiptui

. He further asserted that he later bought another piece of the same property from

Michael Kipchirchir Kiptui

, measuring one acre; and thereafter proceeded to fence off the consolidated portion he purchased, which he later sold to

Benjamin Kiplimo Reuben Kandie

on

9 February 2004

.

DW4

further told the Court that he experienced no challenges over his ownership of the property; save that the process of succession had not been done. He conceded that he bought the 6 acres while fully aware that the registered owner had died way back in

1973.

[17]

The respondent also called

Dr. Benjamin Kiplimo Kandie (DW5)

as his witness.

DW5

adopted his witness statement dated

12 June 2016

and confirmed that he bought a portion of the suit property,

Parcel No. Kaptagat/Kaptagat (Mosop) Block II/046,

measuring 6 acres, from

John Barmao Chebii (DW4)

at

Kshs. 734,000/=

in two portions of 5 acres and 1 acre, respectively. He produced a copy of their sale agreements as

Defence Exhibits 2 and 3

. He added that he has developed the property and has been staying there since the year

2005

without any problem; and that

Michael Kipchirchir Kiptui

, one of the sons of the deceased is residing on the other portion of the property with his sister

Alice Cherotich Kiptui

. He also mentioned that he was aware that the property was registered in the name of the deceased,

Kiptui Cheboi;

and that the only challenge he has was the issue of succession.

[18]

The respondent’s last witness was

Nelson Kipsabit,

a retired chief of Machar Location in Keiyo South of Elgeyo Marakwet County. He testified about the meeting of the deceased’s family that he chaired on

18 July 2012

. He identified the Minutes of that meeting which he signed in his capacity as chairman; and produced the same as an exhibit herein (marked

Defence Exhibit 4).

He pointed out that the main issue for discussion was the distribution of the estate of the late

Kiptui Maluei

as there was a dispute over

Land Parcel

No. 75, Mosop,

between the family of

Kiptui Cheboi

and

Nicholas Kiptui

, the two sons of

Kiptui Maluei

. He pointed out that, since

Joseph Kiptui

and

Joram Kiptui

, the sons of

Kiptui Cheboi

had already settled on

Land Parcel No. 75

, the meeting resolved that

Kiptui Cheboi’s

land, being

Land

Parcel No. 46

, be shared equally between

Nicholas Kiptui

and

Michael Kiptui. DW6

also produced a letter dated

18 October 2006

, which he wrote in respect of the estate, as

Defence Exhibit 5

herein.

[19]

In his written submissions dated

23 June 2020, Mr. Momanyi

for the applicants urged the Court to find that the respondent,

Nicholas Kipngetich Kiptui,

obtained grant herein by fraudulent means in so far as he posed as the son of

Kiptui Cheboi

, the deceased, yet the deceased was in fact his step-brother, who was survived by his own children. He further took issue with the fact that there was concealment of material facts from the Court, in that the respondent left out the children of the deceased from the petition; and instead fronted for strangers as beneficiaries of

Kiptui Cheboi.

[20]

Counsel impugned the letter produced by

DW6

as being of no consequence, since that there was already a succession cause in existence at the time it was written, being

E

ldoret High Court P&A Cause No. 319 of 2004

. Accordingly,

Mr. Momanyi

urged the Court to allow the application and issue the orders sought by the applicants, including an order for the dismissal of this Cause to enable the parties pursue their interests in

Eldoret High Court P&A Cause No. 319 of 2004

.

[21]

On his part,

Mr. Kiboi

, counsel for the respondent, traced the history of the dispute and pointed out that the family of the late

Kiptui Maluei,

who was the father of both the respondent and the deceased herein, had agreed on how to share the two properties the subject of this cause and

Eldoret High Court P&A Cause No. 319 of 2004

. According to him, the 1

st

applicant herein,

Joseph Kiptui

, was to inherit a portion of

Land Parcel No. 75,

belonging to his grandfather,

Kiptui Maluei

while his uncle

Nicholas,

the respondent herein, was to inherit the deceased’s property,

Land

Parcel No. 46,

alongside

Michael Kiptui

, one of the sons of the deceased herein. He explained that this arrangement was preferred because both

Joseph

and

Joram

had already settled on

Land

Parcel No. 75.

[22] Mr. Kiboi

consequently urged the Court to dismiss, as selfish, the contention by the applicants that both properties belong to the estate of the deceased herein. He consequently urged for the rejection of the assertion that

Kiptui Maluei

is one and the same person as

Kiptui Cheboi

. In his submission, to allow the application would mean that the entire family of the respondent, a son to

Kiptui Maluei

, would be completely disinherited. He cited the case of

Ibrahim vs. Hassan & Charles Kimenyi Macharia

[2019] eKLR in urging the Court to uphold the provisions of

Rule 73

of the

Law of Succession Act

, namely, 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 end of justice or to prevent abuse of the Court process.”

[23]

A perusal of the record herein shows that this cause was filed on

20 November 2006

by the respondent,

Nicholas Kipngetich Kiptui (DW1

herein). It relates to the estate of

Kiptui Cheboi

(deceased) who died intestate at Eldoret District Hospital on

25 September 1973

. Thus, vide his petition herein, the respondent sought to be issued with a Grant of Letters of Administration Intestate in respect of the estate of

Kiptui Cheboi

. The record further shows that the petition was duly processed and a Grant issued on

8 May 2007

to the respondent. The said Grant was confirmed on

8 February 2008

, thereby provoking the instant application. Thus, although the application dated

19 February 2008

has been referred to as an objection application and the applicants as objectors, it was filed, not in objection to the issuance of grant, but for revocation of the Grant already issued to the respondent herein.

[24]

The application was, thus, brought pursuant to

Section 76

of the

Law of Succession Act

, which provides that:

A grant of representation, whether or not confirmed, may at any time be revoked or annulled if the court decides, either on application by any interested party or of its own motion--

(a) that the proceedings to obtain the grant were defective in substance;

(b) that the grant was obtained fraudulently by the making of a false statement or by the concealment from the court of something material to the case;

(c) that the grant was obtained by means of an untrue allegation of a fact essential in point of law to justify the grant notwithstanding that the allegation was made in ignorance or inadvertently;

(d) That the person to whom the grant was made has failed, after due notice and without reasonable cause either--

(i) to apply for confirmation of the grant within one year from the date thereof, or such longer period as the court order or allow;

or

(ii) to proceed diligently with the administration of the estate; or

(iii) to produce to the court, within the time prescribed, any such inventory or account of administration assist required by the provisions of paragraphs (e) and (g) of Section 83 or has produced any such inventory or account which is false in any material particular; or

(e) that the grant has become useless and inoperative through subsequent circumstances.

[25]

In

Re Estate of Wahome Mwenje Ngonoro

(Deceased) [2016] eKLR, Hon. Mativo, J.

while discussing the above provision, took the following view with which I agree:

“…A close look at Section 76 shows that the grounds can be divided into the following categories:- the propriety of the grant making process; mal-administration or where the grant has become inoperative due to subsequent circumstances…”

[26]

The grounds set out on the face of the application dated

18 February 2008

are explicit enough. They are:

[a]

That the proceedings to obtain grant herein were defective in substance;

[b]

That the Grant was obtained through concealment of material facts;

[c]

That there are proceedings pending in

Eldoret P&A Cause No. 319 of 2004

over the estate of the same deceased person.

[27]

Thus, the issues that arise for determination herein, based on the grounds aforestated, are:

[a]

Whether the proceedings to obtain the Grant of Letters of Administration Intestate by the respondent herein are defective in substance;

[b]

Whether the Grant was obtained through fraud or concealment of material facts; and,

[c]

Whether the proceedings herein relate to the same person as the deceased in

Eldoret High Court P&A No. 319 of 2004.

[28]

In respect of the first issue, namely, whether the proceedings that led to the issuance of the Grant of Letters of Administration Intestate to the respondent are defective in substance,

the

Simplified Resource Tool on Inheritance and Related Family Practice in Keny

a, published by the Judiciary, offers guidance, at

Paragraph 7.3

thereof, as to the documents that must accompany a petition for Grant of Letters of Administration Intestate. They include:

[a]

Form P&A 5, (Affidavit in Support of Petition)

[b]

Form P&A 11, (Affidavit of Justification of Proposed Sureties)

[c]

Form P&A 12 (Affidavit of Means)

[d]

Form P&A 57 (Guarantee of Personal Sureties)

[e]

Original Death Certificate or certified copy, or an order of presumption of death;

[f]

Full inventory of assets and liabilities of the deceased at the time of death, including estimated value,

[g]

List of heirs

[h]

Letter from the Area Chief introducing the petitioner and heirs

[i]

Consents, where applicable

[29]

There is no dispute that the respondent complied with the requirements of the law in this regard; and therefore that he cannot be faulted on that account. He also availed a Certificate of Search in respect of the property known as

Kaptagat/Kaptagat/Block 2 (Mosop) 46

, dated

8 October 2003

. That document confirms that the property is registered in the name of

Kiptui Cheboi,

the deceased herein. I therefore find no discernible defect in the process adopted by the respondent.

[30]

It was, nevertheless, the contention of the applicants that the respondent was not the most qualified to petition in respect of the estate of his deceased step-brother. They pointed out that the deceased was survived by his own children who ranked higher in the order of preference. To this end, evidence was adduced by the 1

st

applicant as

PW1

and his sister

Sophia

(PW2);

which evidence was entirely uncontroverted, to demonstrate that the deceased,

Kiptui Cheboi,

had the following children with his deceased wife,

Taprandich Kiptui

:

[a] Joram Kipkoech Kiptui

[b] Joseph Kimutai Kiptui

[c] Sophia Chebiwot Kiptui

[d] Michael Kipchirchir Kiptui, and

[e] Alice Cherono Kiptui.

[31]

That the respondent is a step-brother to the deceased was confirmed by, not only the respondent himself, but also by the applicants’ brother

Michael Kipchirchir Kiptui (DW2)

and the respondent’s own sister,

Helena Malakwen

Kiptui (DW3).

The evidence of

Helena

is particularly straightforward and to the point. In cross-examination, she stated that:

“…Kiptiui Cheboi is not my father. My father was Cheboi Maluei. Land No. 46 is in the name of my brother, Kiptui Cheboi. Nicholas is not the son of Kiptui Cheboi. Nicholas is my brother and a brother to Kiptui Cheboi. I do not know that this case was filed by Nicholas in respect of Land No. 46. Kiptui Cheboi did not say that his property be inherited by Nicholas. I know the deceased’s children…Nicholas is not one of the children of Kiptui Cheboi…”

[32]

In view of the indubitable evidence that the respondent is not one of the children of the deceased,

Kiptui Cheboi

, it is plain that, in posing as the son of the deceased as he did in the Petition for Letters of Administration Intestate, Form P&A 80, filed herein on

20 November 2006

, the respondent made an untrue allegation of a fact essential in point of law to the making of Grant. This is because

Section 66

of the

Law of Succession

is explicit as to the order of preference in such situations. It provides that:

“When a deceased has died intestate, the court shall, save as otherwise expressly provided, have a final discretion as to the person or persons to whom a grant of letters of administration shall, in the best interests of all concerned, be made, but shall, without prejudice to that discretion, accept as a general guide the following order of preference-

(a)

surviving spouse or spouses, with or without association of other beneficiaries;

(b) other beneficiaries entitled on intestacy, with priority according to their respective beneficial interests as provided by Part V;

(c) the Public Trustee; and

(d) creditors”

[33]

In Part V of the Act, it is explicit that a spouse and children of a deceased person have precedence over the deceased’s brothers and step-brothers. And, where the deceased is survived by his children and no spouse,

Section 38

of the

Law of Succession Act

provides that:

“…the net intestate estate shall, subject to the provisions of sections 41 and 42, devolve upon the surviving child, if there be only one, or shall be equally divided among the surviving children.”

[34]

In addition to falsely describing himself in the petition as the son of the deceased, the respondent also concealed the fact that, other than

Michael Kipchirchir Kiptui,

the deceased was survived by two other sons,

Joseph Kiptui

and

Joram Kiptui

as well as two daughters,

Alice

and

Sophia

. Additionally, he made another false representation that

Benjamin Kiplimo R. Kandie

is one of the beneficiaries of the deceased.

Benjamin Kiplimo Kandie

testified herein and made it clear that his interest is that of a purchaser, having bought, not the whole of

Parcel No. 46

, but only 6 acres thereof for a consideration of

Kshs. 734,000/=.

He further conceded that he bought his portion of the property from

John Barmao Chebii (DW4)

and not the respondent or the children of the deceased who are well-known to him. It is instructive too that the transaction was entered into long after the death of the deceased.

[35]

On account of the aforementioned untrue allegations of fact, the respondent found it unnecessary to comply with the requirement as to consent as envisaged by

Section 66

of the

Law of Succession Act

as read with

Rule 26

of the Probate and Administration Rules. Indeed,

Rule 26(2)

of the

Probate and Administration Rules

is explicit that:

An application for a grant where the applicant is entitled in a degree equal to or lower than that of any other person shall, in default of renunciation, or written consent in Form 38 or 39, by all persons so entitled in equality or priority, be supported by an affidavit of the applicant and such other evidence as the court may require.

[36]

In this instance, the respondent did not rank in

pari passu

with the children of the deceased. In the premises, the consents he obtained from

Michael Kipchirchir Kiptui

and

Benjamin Kiplimo R. Kandie

vide P&A Form 38, filed with the petition on

20 November 2006,

are to no avail, granted that

Michael

ranked in priority to the respondent. Moreover, he did not seek the consent of the other 4 siblings of

Michael, even though

it was his evidence that they consented to the sale. Clearly therefore, the consent on the file would have been rejected by the Court had the true facts been brought to the Court’s attention when the Grant was issued; for it is clear that it was filed in abuse of the court process. Thus, I am convinced that the applicants have succeeded in demonstrating that the Grant of Letters of Administration Intestate that was issued herein to the respondent was obtained through fraud and concealment of material facts from the Court.

[37]

The second issue for determination is whether the proceedings herein relate to the same deceased person as in

Eldoret P&A No. 319 of 2004

.

Granted the primacy of the proceedings in

Eldoret High Court

P&A No. 319 of 2004

to these proceedings, the Court called for the Court File for perusal. Having carefully perused the same, it is evident that the petition was filed on

16 November 2004

by

Joram Koech Kiptui

in respect of the estate of

Kiptui Maluei

(deceased). He presented the petition in his capacity as a son and heir of the deceased; and in

Form P&A 5,

he disclosed that the deceased was survived by himself as well as

Joseph Kimutai Kiptui

and

Samuel Kiptum Chelal

. The only property mentioned in the Assets section of the Affidavit in Support of Petition was

Land Parcel No. Mosop/Chepkorio/75.

[38]

The court record, per

Eldoret High Court P&A 319 of 2004,

further shows that a Grant of Letters of Administration Intestate was issued to the petitioner therein on

4 October 2005

; which Grant was confirmed on

28 June 2006

. Thereafter, an application for Revocation of Grant was filed by

Nicholas K. Kiptui

,

Michael K. Kiptui

and

Joseph K. Kiptui

dated

3 October 2006

which is still pending hearing and determination. The three applicants aforementioned also filed a separate application for a temporary injunction to preserve the estate property, which was allowed. The revocation application is still pending hearing and determination.

[39]

Perhaps what is noteworthy in

Eldoret High Court

P&A 319 of 2004

is that, in the course of his

viva voce

evidence therein,

Joseph Kiptui

made reference to this Cause in connection with

Land Parcel No. 46

. His evidence in that case, as in this Cause, was that the two parcels of land belong to his father,

Kiptui Cheboi

; and that

Kiptui Cheboi

was also known as

Kiptui Maluei.

Accordingly, the Court

(Hon. Ibrahim, J

., as he then was) made an order on

18 February 2008

thus:

“This court has come to learn that the Objector is claiming that his father also owned another piece of land Mosop/Mosop/46 measuring about 10 acres. Mrs. Kittony brought this court’s attention that the said land is the subject matter in P&A Cause No. 313 of 2006 – Estate of late Kiptui Cheboi. The Objectors now claim that the said deceased is one and the same as Kiptui Maluei.

In view of the foregoing, this court orders that the hearing of this Objection proceedings be stayed pending an inquiry as to whether the late Kiptui Cheboi is one and the same person as late Kiptui Maluei…”

[40]

In the same vein, the Court made an order for the DCIO, Keiyo, to investigate the two Certificates of Death; No. 103049 in respect of

Kiptui Cheboi

and No. 717958 in respect of

Kiptui Maluei

. The DCIO’s Report however was of little help as it befuddled the matter even further by confusing the names and identities of the two individuals. Hence, in this matter,

High Court P&A No. 313 of 2006

, the applicants called

CI Mutiso Kioko (PW2)

to shed more light on the outcome of his investigations into matter. His evidence was that he took over the investigations in respect of the identities of the two deceased persons,

Kiptui Maluei

and

Kiptui Cheboi;

and that he confirmed that

Kiptui Cheboi arap Maluei

died on

25 September 1973

while

Cheboi Kiptui

died on

28 September 1998

. It was therefore the evidence of

PW2

that

Kiptui Maluei

is not the same person as

Kiptui Cheboi

; and that the two were father and son, respectively. He produced his report as applicants’

Exhibit 1

.

[41]

Thus, in the report presented by

PW2

dated

12 June 2014

, the conclusion reached was that:

“…Maluei was found to be the family name thus commonly used by any family member. A carefully crafted confusion by some family members alleging that both names belonged to one person was found to exist and was smartly insinuated to suit their interest in the inheritance case…The culmination of the investigations by this office established that KIPTUI CHEBOI also known as KIPTUI MALUEI was actually a son to CHEBOI KIPTUI ARAP MALUEI…”

[42]

What emerges from the totality of the evidence presented herein is that, aside from the somewhat confusing similarity in the names of the two deceased persons, it is a fact that the disputants are family members; and that the respondent,

Nicholas Kipngetich Kiptui

, is a step-brother to the deceased herein,

Kiptui Cheboi

. There is further no dispute that the two were the sons of the late

Kiptui Maluei

. There is credible evidence that

Kiptui Cheboi

predeceased his father, having died on

25 September 1973

as per the Certificate of Death No. 103049. That is why, in her evidence,

Sophia Chebiwot Kiptui

plainly told the Court, in cross-examination, that:

“My father’s name is Kiptui Cheboi. Nicholas is the brother of my father. He is my uncle. The father of Nicholas is deceased. His name is Cheboi Maluei arap Kiptui or Kiptui Maluei. My father died in 1973. I was still young…”

[43]

Both

Michael Kiptui (DW2)

and

Helena Malakwen Kiptui (DW3)

were also fairly explicit that

Kiptui Cheboi

and

Kiptui Maluei

were two distinct individuals; and that

Kiptui Cheboi

was the son of

Kiptui Maluei

.

Michael

is the brother of the applicants; while

Helena

is the sister of

Nicholas

, the respondent, and therefore the aunt to the applicants. I must mention that I formed the impression that

Michael Kiptui (DW2), Sophia Kiptui (PW3)

and

Helena Malakwen Kiptui (DW3)

were more reliable as witnesses; and that they were more objective than their siblings who testified herein. Accordingly, on the basis of their evidence, and on the evidence of the DCIO,

CI Mutiso Kioko

(PW2),

I find as a matter of fact that

Kiptui Cheboi

and

Kiptui Maluei

were two different individuals; and that they were in fact father and son. This explains why in the Certificate of Death filed herein, the name of the deceased is clearly stated as

Kiptui Cheboi

as opposed to

Kiptui Maluei.

The same is the case with the chief’s letter dated

18 October 2006.

[44]

The foregoing being my view of the matter, it follows that it would be inappropriate to strike out or dismiss this cause in favour of

High Court P&A No. 319 of 2004

. The deceased herein owned the subject property in his own right, and therefore these proceedings must be pursued to conclusion to enable appropriate transmission to the beneficiaries of the deceased; including

Michael

who has been living on the property. It is further my considered view that, at this point in time, it would be premature to pronounce myself as to the interest, if any, of the purchasers. That is an issue which will fall for determination at the Confirmation stage.

[45]

In the result, having found that the respondent herein fraudulently obtained Grant of Letters of Administration Intestate to the estate of

Kiptui Cheboi

(deceased) and concealed material facts from the Court, the application dated

18 February 2008

succeeds and is hereby allowed. It is accordingly ordered that;

[a]

The Grant of Letters of Administration issued on

8 May 2007

to the petitioner/respondent,

Nicholas Kipngetich Kiptui,

and confirmed on

17 December 2007,

be and is hereby revoked.

[2]

That the costs of the application be costs in the cause.

It is so ordered.

DATED SIGNED AND DELIVERED AT ELDORET THIS 3

RD

DAY OF MAY 2021

OLGA SEWE

JUDGE