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In re Estate of Kipneno Arap Chepkwony (Deceased) (Succession Cause 36 of 1991) [2022] KEHC 14256 (KLR) (7 October 2022) (Ruling)
Neutral citation:
[2022] KEHC 14256 (KLR)
Republic of Kenya
Succession Cause 36 of 1991
AN Ongeri, J
October 7, 2022
IN THE MATTER OF THE ESTATE OF KIPNGENO ARAP
CHEPKWONY alias KIPRUKOI ARAP CHEPKOI
(DECEASED)
Ruling
1.The two objectors in this case, Esther Chepkemoi Chepkwony and Daniel Kipchirchir Marusoi (hereafter referred to the 1st and 2nd Objectors/Applicants respectively) filed a summons for revocation dated 9/11/2004 seeking the following Orders:-i.That the grant of Letters of Administration made to Grace Chelangat Chepkwony on 28/11/1991 and confirmed on 26/6/1996 be revoked and annulled.ii.That the district Registrar, Bureti/Kericho be compelled to annul or cancel Title No.LR. No.Kericho/Kapkatet/2101 and its deed issued on 24/6/1997 and to revert to the former Parcels No.LR. No.Kericho/Kapkatet/1288, LR. No.Kericho/Kapkatet/288 and LR. No.Kericho/Kapkatet/322.
2.The summons for revocation is based on the grounds that the grant was obtained fraudulently by the making of false statements and from concealment from the court of material facts to the case and further that the grant was obtained by means of untrue allegations of facts essential in point of law to justify the grant.
3.The summons for revocation is supported by the Affidavits of Esther Chepkemoi Chepkwony and Daniel Kipchirchir Marusoi both dated 18/11/2004.
4.Esther Chepkemoi Chepkwony is the widow to the late Kipngeno Arap Chepkwony who was the registered owner of LR Kericho/Kapkatet/1288.
5.Esther Chepkemoi Chepkwony avers that Kiprukoi Arap Chepkoi died on the 5th day of May 1989 and a grant of letters of administration intestate of the estate of the said Kiprukoi Arap Chepkoi was made to Grace Chelangat Chepkwony.
6.Esther Chepkemoi Chepkwonyavers that the grant herein was confirmed and a certificate of confirmation issued on 28/6/1996.
7.Esther Chepkemoi Chepkwony avers that the grant was obtained fraudulently by the making of false statements and/or by concealment of material facts to wit;i.That the Petitioner fraudulently and unlawfully with intent to deceive stated in the application that Kipngeno Arap Chepkwony was also known as Kiprukoi Arap Chepkoi.ii.That the Petitioner fraudulently and unlawfully included L.R. No. Kericho/Kapkatet/1288 in the schedule of properties in the application purporting it to belong to Kiprukoi Arap Chepkoi fully knowing it belonged to Kipngeno Arap Chepkwony.iii.That the Petitioner fraudulently and unlawfully transferred L.R. No. Kericho/Kapkatet/1288 to one Samwel Kiprotich Kirui purporting it to belong to the estate of Kiprukoi Arap Chepkoi fully knowing it belonged to the estate Kipngeno Arap Chepkwony.iv.That the Petitioner fraudulently misrepresented to the District Land Registrar Kericho that Kipngeno Arap Chepkwony was also known as Kiprukoi Arap Chepkoi and that L.R. No. Kericho/Kapkatet/1288 belonged to Kiprukoi Arap Chepkoi.v.That the Petitioner fraudulently connived to have parcels of land L.R. No. Kericho/Kapkatet/1288, Kericho/Kapkatet/288, Kericho/Kapatet/322 respectively destroyed, broken, amalgamated and/or consolidated to L.R. No Kericho/Kapkatet/1201, transferred and registered in the name of Samwel Kiprotich Kirui.vi.That the Petitioner and her son Samwel Kiprotich Kirui have been charged with three (3) criminal offences to wit; conspiracy to defraud, obtaining registration by false pretences and forcible detainer vide Sotik Senior Resident Magistrate’s Court Criminal Case No. 637 of 2004.
8.Esther Chepkemoi Chepkwony further avers that following confirmation of grant, the Administratix Grace Chelangat Chepkwony fraudulently proceeded to distribute the estate and transfer L.R. No. Kericho/Kapkatet/1288 to her son Samwel Kipngeno Kirui thereby unlawfully and fraudulently disinheriting her and her son Richard Ngeno.
9.Daniel Kipchirchir Marusoi avers that the grant herein was confirmed and a certificate of confirmation issued on 28/6/1996.
10.Daniel Kipchirchir Marusoi avers that the grant herein obtained by means of untrue allegations of facts to wit;i.That the true name of the deceased is Kiprukoi Arap Chepkoi alias Marusoi Arap Chepkwony and not Kiprukoi Arap Chepkoi alias Kipngeno Arap Chepkwony as alleged.ii.That Kipngeno Arap Chepkwony was a brother to Kiprukoi Arap Chepkoi and the two are distinct persons, each with his own family and estate separate and distinct from the other and not the same person as alleged.iii.That Kipngeno Arap Chepkwony died in 1980 leaving a widow and a son, Esther Chepkemoi Chepkwony and Richard Ngeno whereas Kiprukoi Arap Chepkoi died on the 5th day of May 1989 and was survived by a widow Grace Chelangat Chepkwony and three sons Hillary Kiprono Kirui, Samuel Kiprotich Kirui and Daniel Kipchirchir Marusoi (deponent) and not as otherwise alleged.iv.That Kiprukoi Arap Chepkoi was the registered owner of land parcels LR Nos. Kericho/Kapkatet/288, Kericho/Kapkatet/322 and Kericho/Magire/Makyolok/247 but not including Kericho/Kapkatet/1288 which belonged to Kipngeno Arap Chepkwony as alleged and stated in the application.
11.Daniel Kipchirchir Marusoi avers that the Administratix, Grace Chelangat Chepkwony administered the estate inequitably and secretly distributed the estate to his detriment.
12.The case proceeded by way of viva voce evidence. The 1st an 2nd Objector/Applicants called 6 witnesses whose evidence was as follows:-
13.OW.1 Daniel Kipchirchir Marusoi said he is the 2nd Objector/Applicant and that the Petitioner in this case Grace Chelangat Chepkwony is his mother. He said Samwel Kiprotich Kirui is his brother. OW.1 said his father Kiprukoi Arap Chepkoi died on 5/5/1989 and not on 5/5/1990. He had the following parcels of land.
14.He said Land Parcel Kericho/Kapkatet.1288 belongs to his late Uncle Kipngeno Arap Chepkwony who was the husband to the 1st Objector Appliocant Esther Chepkemoi Chepkwony. OW. also said his brother Samwel Kiprotich Kirui fraudulent caused Parcels 322, 288 belonging to their father and 1288 belonging to their Uncle be registered in his name and it was given Kericho/Kapkatet/2101.
15.He asked the Court to cancel the title Land Parcel No. Kericho/Kapkatet/2101 to be cancelled as it was fraudulently issued to Samwel Kiprotich Kirui. He also proposed that Land Parcel Kericho/Kapkatet/1288 which belongs to his Uncle to be allocated to Esther Chepkemeoi Chepkwony and Kericho/Kapkatet/322 and 288 to be shared by his siblings and himself. OW.1 said in cross-examination that the deceased also had land Parcel LR No. Kericho/Magire/247. He said it measures 6.6 Acres and not 8 Acres. He said he would like the three Parcels owned by his father to be shared equally and LR. No.1288 to be given to the 1st Objector/Applicant who is the wife of his Uncle Kipngeno Arap Chepkwony.
16.OW.1, the 2nd Objector/Applicant also asked the Court to rely on his Affidavit in support of the Summons for Confirmation and documents filed in Court.
17.OW.2 Janet Chelangat Ngeno said the 1st Objector/Applicant is her mother-in-law. She is the wife of Richard Ngeno the son of the 1st Objector. She said her father-in-law, Kipngeno Arap Chepkwony was the owner of Kericho/Kapkater/1288. She said Samwel Kiprotich Kirui who is a brother to OW.1 Daniel Kipchirchir Marusoi fraudulently registered the Parcel No.1288 in his name. She said the title LR. No.Kericho/Kapkatet/2101 issued to Samwel Kiprotich Kirui is not genuine and it should be cancelled and Land Parcel 1288 revert back to Esther Chepkemoi Chepkwony.
18.OW.3 – Esther Chepkemoi Chepkwony who is the 1st Objector/Applicant said the Petitioner Grace Chelangat Chepkwony is the wife of Kiprugoi Arap Chepkoi. She said Samwel Kiprotich Kirui is her son.
19.OW.3 said she is the wife of Kipngeno Arap Chepkwlny who was the registered owner of Land Parcel No.Kericho/Kapkater/1288.
20.OW.1 in her Affidavit dated 18/11/2004 also deposed that the Petitioner and her son Samwel Kiprotich Kirui caused Land Parcel No. Kericho/Kapkatet/1288 to be fraudulently transferred as part of the Estate of Kiprukoi Arap Chepkoi while it belonged to her late Husband Kipngeno Arap Chepkwony.
21.OW.3 said she has one son Richard Ngeno. She also said Kipngeno Arap Chepkwony (her late husband) was not the same as Kiprukoi Arap Chepkoi was not the same as Kiprukoi Arap Chepkokoi who was the husband of the Petitioner Grace Chelangat Chepkwony.
22.Three more witness called by the Objectors, OW.4 Barnabas Kipkurui Koskei, OW.5 – Peter Metet and OW. 6 John Kipkemoi Ngetich also said Samwel Kiprotich Kirui took land belonging to both Kipngeno Arap Chepkwony who was the husband of the 1st Objector Esther Chelangat and Kiprukoi Arap Chepkoi who was the husband of the Petitioner Grace chelangat and the land became LR. No. Kericho/Kapkatet/2101 which is now in the name of Richard Kiprotich Kirui who is one of the sons of the Petitioner.
23.The witnesses asked the Court to give back Land Parcel No.Kericho/Kapkatet/1288 back to Esther Chelangat since she has been disinherited.
24.The Petitioner Grace Chelangat Chepkwony and Samwel Kiprotich Kirui testified as Petitioner’s witnesses No.1 and 2. They relied on their written witnesses statements dated 27/5/2017 in which they stated as follow:-
25.PW.1 Grace Chelangat Chepkwony said she is the wife of the late Kiprukoi Arap Chepkoi alias Kipngeno Arap Chepkwony. She said she does not know the 1st Objector/Applicant Esther Chepkemoi Chepkwony. She said the 2nd Objector/Applicant Daniel Kipchirchir Marusoi is her son.
26.PW.1 said in her statement that her husband was also known as Kipngeno Arap Chepkwony and that he died on 5/5/1989. She said upon the death of her husband, she filed this Succession Cause and was issued with a grant on 26/6/1996.
27.She said she subdivided the property between her two sons as follows:-Kiprotich Kirui - 8.97 AcresDaniel Kipchirchir - 8 Acres
28The Petitioner said Kiprotich got an extra 0.97 Acres because he stays with her. She said Land Parcel No. Kericho/Kapkatet/1288 belonged to her husband and not to Tele Arap Chepkwony.
29The Petitioner also stated in her statement that her late husband had one brother who is now deceased called Tele Arap Chepkwony alias Tele Arap Chepkoe who was married to Catherine Chepkorir Chepkoe who is also now deceased. They owned Land Parcel No. Kericho/Kapkatet/2187 which is now occupied by their children Peter and Anna.
30.In cross-examination, the Petitioner maintained that her late husband was also known as Kipngeno Arap chepkwony. She said she does not know the 1st Objector herein Esther chelangat.
31.The Petitioner also said her late husband had land parcel No. Kericho/Makyolok/247 measuring 8 Acres which she gave to her son Daniel Kipchirchir Marusoi (the 2nd Objector/Applicant). She also said the deceased subdivided the land when he was still alive.
32.PW.2, Samwel Kiprotich Kirui who testified as Petitioner’s witness No.2 also adopted his written statement dated 27/5/2017 in which he stated that the 1st Objector/Applicant is unknown to him and further that she claims to have been married to his Uncle Tele Arap Chepkwony akias Tele Arap Chepkoe.
33.PW.2 said he is the son of the late Kiprukoi Arap Chepkoi alias Kipngeno Arap Chepkwony who died intestate on 5/5/1989.
34.PW.2 said their father had apportioned Land LR.No.Kericho/Magire/Makyolok/247 measuring 8 Acres to the 2ndObjector/Applicant Daniel Kipchirchir Marusoi and PW.2 was allocated Kericho/Kapkatet/288, 322 and 1288 measuring 2.9 Acres to him and he resided there with their mother, the Petitioner herein Grace Chelangat Chepkwony.
27.OW.2 said sometimes in 2005, the 1st and 2nd Objectors/Applicants have in encroached on this parcel and threatened to slash him with Machetes if he ever stops them from encroaching on the said land.
28.PW.2 also said he was assaulted by the 2nd Objector/Applicant who has also filed several cases against him and their mother, the Petitioner herein.
29.In cross-examination, PW.2 said their late father had four pieces of property as follows:-
30.PW.2 also said in cross examination that it was the 2nd Objector/Applicant who brought the 1st Objector/Applicant for purposes of taking away his property. He said the 2nd Objector/Applicant moved to Makyolok in 1988. He said the land at Makyolok had coffee on 1 Acre. He said there were trees at Kapkatet and he planted tea PW.1 also maintained that their father had only one brother Tele Arap Chepkwony.
31.PW.2 maintained in Cross-Examination that the deceased was known as Kipngeno Arap Chepkwony and he was also known as Kiprukoi Arap Chepkoi and Marusoi Arap chepkwony. He also said he planted tea at Kapkatet. He said the property at Makyolok is 8 Acres and the one at Kapkatet is 8.9 Acres. He said the 1st Objector/Applicant is a stranger whom the 2nd Objector/Applicant is using to get the property belonging to PW.1 at Kapkatet.
32.PW.2 Samwel Kiprotich Kirui also said the 2nd Objector/Applicant killed someone and that is why he was told to relocate to Makyolok by their late father. He said the property at Makyolok is 8 Acres and not 6 Acres as alleged by the 2nd Objector/Appellant.
33.The parties filed submissions which I have duly considered.
34.The First Objector/Applicant contended that when the Petitioner/Respondent filed the succession suit in respect of the estate of Kiprukoi Arap Chepkoi she fraudulently and unlawfully included L.R. No. Kericho/Kapkatet/1288 in the inventory of properties to be distributed yet the property belonged to her brother-in-law, the late Kipngeno Arap Chepkwony.
34.The First Objector/Applicant asserted that the grant herein was obtained fraudulently and by concealment of material facts, namely, the exclusion of Esther Chepkemoi Chepkwony on the list of beneficiaries.
35.The First Objector/Applicant therefore maintained that the grant ought to be revoked and annulled under the provisions of section 76 of the Law of Succession Act.
36.It was submitted on behalf of the Second Objector/ Applicant a son to Kiprukoi Arap Chepkoi and therefore beneficiary and/or dependent of the estate of the deceased that Kericho/Magire/Makyolok/247 ought to be shared equally like L.R. No. Kericho/Kapkatet/288 and L.R. No. Kericho/Kapkatet/322. Furthermore, the Second Objector/Applicant had also acknowledged that Esther Chepkemoi Chepkwony was the wife to his late uncle Kipngeno Arap Chepkwony.
37.The objectors reiterated that the Petitioner had fraudulently connived to have parcels of land L.R. No. Kericho/Kapkatet/1288, Kericho/Kapkatet/288, Kericho/Kapatet/322 respectively destroyed, broken, amalgamated and/or consolidated to L.R. No Kericho/Kapkatet/1201, transferred and registered in the name of Samwel Kiprotich Kirui. The objectors/applicants were adamant that title for L.R. NO Kericho/Kapkatet/1201 should be cancelled and the resultant titles be restored in the interests of justice failure to which they stood to suffer irreparable loss and damage which cannot be redressed and/or compensated in monetary terms.
38.The Petitioner submitted that she was a widow to the deceased, she filed succession proceedings in the year 1991 and was issued with a temporary grant of administration on 28/11/1991 and the same was confirmed on 26/6/1996 whereas the objectors filed their objection on 9/11/2004.
39.The Petitioner conceded the fact that the deceased had a brother (now deceased) who went by the name Tele Arap Chepkoi.
40.The Petitioner submitted that the bone of contention was the contradiction as to the existence or non-existence of a mysterious 3rd brother namely Kipngeno Arap Chepkwony.
41.The Petitioner maintained that Kiprukoi Arap Chepkoi, Kipngeno Arap Chepkwony and Kipngeno Arap Chepkoi are one and the same person who was the deceased herein.
42.The Petitioner reiterated that the onus was on the objectors to prove their assertions and cited sections 107,108 and 109 of the Evidence Act.
43.The Petitioner maintained that the succession cause was filed in 1991 and that all properties of the deceased listed therein and the cause proceeded until the grant was issued without any protests.
44.The Petitioner contended that the 1st objector does not fall under the dependents and/or beneficiaries listed under section 29 of the Law of Succession Act and as such she was a stranger to the estate of the deceased herein.
45.The Petitioner submitted that the objector’s issue was a claim against the estate of the deceased that was best suited to addressed by a suit lodged in the Environment and Land Court.
46.The issues for determination in this succession cause are as follows:-(i)Whether Kiprukoi Arap Chepkoi is also known as Kipngeno Arap Chepkwony.ii.Whether Kiprukoi Arap Chepkoi had two brothers.iii.Whether the 1st Objector Esther Chepkemoi Chepkwony was married to a brother of the deceased herein.iv.Whether the grant and certificate of confirmation issued to the Petitioner herein should be revoked and annulled.
47.On the issue as to whether Kiprukoi Arap Chepkoi is also known as Kipngeno Arap Chepkwony, the evidence of the Objectors is that the deceased herein was known as Kiprukoi Arap chepkoi and further that Kipngeno Arap Chepkwony was his brother who was the husband of the 1st Objector Esther Chepkemoi Chepkwony.
48.However,the evidence of the Petitioner is that the deceased herein was also known as Kipngeno Arap Chepkwony. The Petitioners maintained that the deceased herein did not have two brothers. They said he only had one brother called Tele Arap Chepkwony and that Kipngeno Arap Chepkwony is the same as Kiprukoi Arap Chepkoi.
49.I have perused the Petition filed herein by the Petitioner/Respondent and the same has indicated the names of the deceased herein as Kipngeno Arap Chepkwony alias Kiprukoi Arap Chepkoi.
50.The death certificate attached to the Petition bears the name of the deceased as Kiprukoi Arap Chepkoi and the date of death as 5/5/1989.
51.It is evident from the record that the 2nd Objector was sued by his brother Samwel Kiprotich Kirui (PW.2) who is the Petitioner’s 2nd witness in Kericho HCCC. No.57 of 2006 seeking vacant possession but he case was not determined since this succession cause was still pending in Court.
52.Prior to that Civil Suit, the Petitioner and PW.2 Samwel Kiprotich Kirui were again charged three Criminal Charges – conspiracy to defraud, obtaining Registration by false presences and forcible detainer contrary to Sections 317, 320 and 91 of the Penal Code respectively in respect of the suit property Kericho/Kapkatet/1288. Again, no determination was produced.
53.I also find that there are two death certificates filed in respect of Kiprukoi Arap Chepkoi. The one attached to the Petition showing the date of death as 5/5/1989 and one attached to the Objector’s documents showing the date of death as 5/5/1990.
54.There is also a death certificate produced by the Objectors in respect of Kipngeno Arap Chepkwony showing that he died on 26/11/1980.
55.The issue for determination is whether Kiprukoi Arap Chepkoi the deceased herein is also known as Kipngeno Arap Chepkwony, I find that the Petitioner indicated the names of the deceased in the Petition as Kipngeno Arap Chepkwony alias Kiprukoi Arap Chepkoi.
56.The retired Chief of Cheplanget Location Mr. Elijah Kipngetich Sigei was called by the Court as a witness in this case and he said Kipkurui Arap Chepkoi and Kipngeno Arap Chepkwony were brothers.
57.The Chief also said the two brothers had a brother called Tele Arap Chepkwony alias Tele Arap Chepkoi.
58.He said the deceased herein Kipkurui Arap Chepkoi had three sons Samwel Kiprotich Kirui – PW.2 (Petitioner’s witness No.2), Daniel Mursoi (the 2nd Objector) and a young brother who died.
59.The Chief availed a letter giving the details of the two families. He stated in the letter that the wife of Kiprugoi Arap Chepkoi (the deceased herein) is Grace Chelangat (the Petitioner) and further that they had 9 children including Daniel Mursoi (the 2nd Objector) and Samwel Kiprotich Kirui (the Petitioner’s 2nd witness (PW.2).
60.The Chief also said Kipngeno Arap Chepkwony (also deceased) was a brother to the deceased herein Kiprukoi Arap Chepkoi. He said the wife of Kipngeno Arap Chepkwony is Esther Chepkemoi Chepkwony and they were blessed with one child Richard Kiprotich Ngeno.
61.I therefore find that there is evidence that Kiprukoi Arap Chepkoi (the deceased herein) is different from Kipngeno Arap Chepkwony.
62.The letters of Administration obtained by the Petitioner Grace Chelangat Chepkwony were fraudulently obtained and the same are revoked and accordingly anulled.
63.Section 76 of the Law of Succession Act (Chapter 160 of the Laws of Kenya) states as follows:-
64.The court in the case of Jamleck Maina Njoroge V Mary Wanjiru Mwangi (2015) eKLR at paragraph 11 of its ruling in revoking a grant reiterated the grounds upon which a grant can be revoked. It stated as follows; “The circumstances that can lead to the revocation of grant have been set out in Section 76 Law of Succession. For a grant to be revoked either on the Application of an interested party or on the court’s own motion there must be evidence that the proceedings to obtain the grant were defective in substance, or that the grant was obtained fraudulently by making of false statement, or by concealment of something material to the case, or that the grant was obtained by means of untrue allegations of facts essential in point of law.”
65.In the case of Albert Imbuga Kisigwa v Recho Kavai Kisigwa, Succession Cause NO.158 OF 2000, Mwita J. made remarks on the guiding principles for the revocation of a grant. He stated; “Power to revoke a grant is a discretionary power that must be exercised judiciously and only on sound grounds. It is not discretion to be exercised whimsically or capriciously. There must be evidence of wrong doing for the court to invoke section 76 and order to revoke or annul a grant. And when a court is called upon to exercise this discretion, it must take into account interests of all beneficiaries entitled to the deceased’s estate and ensure that the action taken will be for the interest of justice.”
66.I find that there is evidence that Kiprukoi Arap Chepkoi had two brothers Kipngeno Arap Chepkwony whose wife is the Objector Esther Chepkemoi Chepkwony and Tele Arap Chepkoe (deceased) whose wife was Catherine Chepkorir Chepkoe (also deceased).
67.I am satisfied that, there is ample evidence that the Petitioner/ Respondent did more than just conceal material facts. She went further and misrepresented facts to the court in order to defraud the objectors of their inheritance. The objector has demonstrated within the purview of Section 76 that the grant was fraudulently obtained and there was concealment of material facts and misrepresentation.
68.In the case of Re Estate Of Julius Ndubi Javan (deceased) [2018] eKLR Gikonyo J. stated as follows; “Needless to state that, in any judicial proceeding, parties must make full disclosures to the court of all material facts to the case including succession cases. This general rule of law emphasizes utmost good faith (uberrimae fidei) from parties who take out or are subject of the court proceedings. The said responsibility is part of justice itself. Accordingly, non-disclosure of material facts undermines justice and introduces festering waters into the pure steams of justice; such must, immediately be subjected to serious reverse osmosis to purify the streams of justice, if society is to be accordingly regulated by law.”
69.I therefore find that the grant and certificate issued to the Petitioner herein was obtained fraudulently and I accordingly revoke and annul the said grant.
70.The District Registrar Bureti/Kericho is directed to annul and cancel Title No. Kericho/Kapkatet/2101 issued to Samwel Kiprotich Kirui and the land to revert to the initial titles as follows:-(i)Kericho/Kapkatet/1288(ii)Kericho/Kapkatet/288iii.Kericho/Kapkatet/322
71.The widow of Kipngeno Arap Chepkwony is also directed to Petition the Estate of the said Kipngeno Arap Chepkwony since this succession cause is in respect of Kiprukoi Arap Chepkoi.
72.Each party will bear its own costs of this case.
Orders to issue according.
Delivered, dated and signed at Kericho this 7th day of October, 2022A. N. ONGERIJUDGESUCCESSION CAUSE NO.36 OF 1991 Page 12
