Without going deeply into the history of this case which revolves around the
estate of the Late Kipchumba Misoy [deceased], it may nonetheless be
stated that upon the death of the deceased on or about the 11
th June 2002 at
the age of fifty nine [59] years the petition for grant of letters of
administration Intestate respecting the deceased’s estate was presented in
court on 18
th September 2013 by the surviving widow, Regina Jepkoech
Misoy.
2. The Chief’s letter dated 2
nd September 2013 accompanying the petition
showed that the deceased was survived by the Petitioner as the sole wife
and twelve [12] children i.e. Six [6] daughters and six [6] sons. The eldest
daughter was Rose Cheptoo and the eldest son, Philip Chumba. The
youngest daughter was Julia Chepleting and the youngest son, Sila
Chumba. All the twelve children were already adults at the time of the
presentation of the Petition and were all treated as dependants of the
deceased along with their mother, the Petitioner.
3. In the petition, the assets or property identified as belonging to the deceased
and available for distribution amongst the dependants were the following: -
(a)Land Parcel No. Pioneer/Ngeria Block 1 [EATEC]/2651
(b)Land Parcels Nos. Ngeria/Chepyakwai Block 2[Kaplelach]/227,
210
(c)Land Parcel No. Ngeria Chepyakwai Block 2[Kaplelach]/228
(d)Land Parcels Nos. Nandi/Kamobo/3047, 3048, 3046
(e)Land Parcel No. Nandi/Komobo/3043
(f) Land Parcel No. Nandi/Komobo/3041
(g)Land Parcel No. Nandi/Komobo/3042
(h)Land Parcel No. Nandi/Komobo/3044
(i) Land Parcel No. Nandi/Komobo/3045
(j) Land Parcel No. Pioneer/Ngeria Block 1[EATEC]/2661
(k)Land Parcel No. Pioneer/Ngeria Block 1[EATEC]/2650
4. It was on the basis of all the information provided in the petition that on the
19
th December 2013, the court issued the foundational grant of letters of
administration intestate, but this was to be later amended on the 11
th June
2019 to include the deceased’s eldest, Philip Kipchirchir Chumba as a Co-
Administrator of the estate.
The amendment was prompted by an application made by Philip for
revocation of the grant. The application was dated the 17
th April 2018.
5. Section 71 of the Law of Succession Act, requires that a grant be
confirmed after the expiration of six months from the date of issue. This
provision read with Section 83[9] of the Succession Act indicate that the
confirmation of the grant and the administration of the estate ought to be
undertaken within a short period of time. Therefore, failure or neglect to
complete the administration of the estate expeditiously would amount to a
breach of the Succession Act. It was clearly against that background that
the application for revocation of the grant was made by the deceased’s
eldest son.
6. Indeed, it was stated in the summons for revocation of grant that the grant
was in-operative due to the failure of the then sole administrator widow of
the deceased to have it confirmed within a period of one year. It was also
stated that the sole administrator had sub-divided and sold part of the estate
without the consent of all the other beneficiaries and had also sub-divided a
part of the estate and allocated it to herself and the youngest son of the
deceased, Sila Kiplangat.
7. In its ruling of the 11
th April 2019 on the application for revocation in which
the sole administrator widow of the deceased was the Respondent, the
Court stated as follows: -
“One thing is clear, the grant of letters of administration had not
been confirmed and that issuance in no way give the Respondent
authority to complete the transaction she purported to engage
in.
Secondly, there is no evidence that the deceased had sold the
parcels to the named purchasers as no sale agreement was
annexed nor did any of the purported purchasers swear an
affidavit to state the correct position.
The Respondent alludes to a will whose copy she has not
annexed and the allegation remains hot air.
As for the parcels she concedes to have sold, the Respondent
does not say how much she sold them for and she must render
proper and detailed accounts within 21 days of this ruling.”
8. The court further stated that: -
“Certainly the Respondent ranks first in order of priority as
regards who ought to apply for a grant of letters of
administration, but that does not bar other beneficiaries from
seeking to be co-administrators to stem the fast rate of disposal
of the estate even before confirmation of grant.
Consequently, the grant issued to the Respondent is revoked and
a fresh one do issue in favour of the Applicant and the
Respondent as joint administrators.
The findings aforementioned had the ultimate effect of revoking the original
grant issued on 19
th December 2013 to the surviving widow of the deceased,
Regina Jepkoech Misoi and substituting it with the fresh grant dated 11
th
June 2019 in which the widow and her eldest son were named as the co-
administrators of the estate and directed to file respective submissions on
the mode of distribution of the estate.
9. This meant that the entire estate was restored to its original form as
indicated in the affidavit in support of the petition dated 16
th September 2013
[Form P&A 5]. Therefore, anything that may have been done in altering the
original status of the entire estate on the strength of the revoked grant was
not only unlawful, but also null and void “ab-initio.” This was indeed
confirmed by the court in its ruling of the 12
th February 2020 on an
application by the deceased’s eldest son [Philip] for cancellation of new
titles issued on the strength of the revoked grant.
10. The direction given to the deceased’s widow by the court on 11
th April
2019, to render proper and detailed accounts was apparently not followed.
The process of confirming the fresh grant and distributing the estate to the
dependants/ beneficiaries was therefore to commence on a clean slate.
That was the reason why the parties were directed by the court to file
respective submissions on the mode of distribution of the estate.
Seemingly, the application by the Co-Administrator/ 2
nd Petitioner dated 28
th
August 2020 for confirmation of the fresh grant was in compliance with the
court’s directions.
11. This court allowed that application on the 4
th July 2023 when it came
up for hearing. In that regard, the certificate of confirmation of the fresh
grant was issued on 5
th July 2023, but was followed by three [3] separate
application for its revocation. The first such application was dated 2
nd
October 2023 by the Co-Administrator/ 1
st Petitioner wife of the deceased
while the second application was dated 8
th November 2023 by the
beneficiaries children of the deceased, Sila Chumba, Zipporah Misoi and
Teresa Chepkosgei. The third application was dated 29
th November 2023
by other beneficiaries children of the deceased, Richard Kipkoros Chumba
and Patrick Kipkemboi Chumba.
12. On 15
th May 2024, the court directed that the application dated 2
nd
October 2023 be heard in priority to the other two similar applications. This
court, after hearing the application rendered its ruling on 13
th February 2025,
in which it concluded as follows: -
“in sum, the present application is well merited and is hereby
allowed to the extent that the impugned certificate of confirmation
of grant issued by this court on 5
th July 2023 be and is hereby
revoked forthwith and any transaction arising from it is hereby
declared null and void “ab-initio” to the extent that all the titles
respecting the estate or part thereof do revert to the name of the
deceased until such time that the estate shall be properly and
lawfully distributed amongst the true beneficiaries.
In order to prevent an acrimonious distribution of the estate and
facilitate a smooth and peaceful process of distribution the
impugned grant of letters of administration intestate issued to the
first and second petitioners by dint of the ruling of the court made
on 11
th April 2019, which gave rise, to the impugned summons for
confirmation of grant dated 28
th August 2020, must be and is
hereby revoked together with the impugned certificate of
confirmation of grant.”
13. The court went further to issue another fresh grant of letters of
administration intestate to four [4] Co-Administrators viz: -
1. Regina Jepkoech Misoy [First Administrator/ Petitioner]
2. Philip Kipchirchir Chumba [Second Administrator/ Petitioner]
3. Rose Chpetoo [deceased’s eldest daughter]
4. Sila Chumba [deceased’s youngest son]
The four administrators were directed by the court to engage and come up
with a fresh summons for confirmation of the new grant within a period of six
months or any other shorter period that they may deem necessary.
14. On the 15
th May 2025, the court ruled that the other two applications
dated 8
th November 2023 and 29
th November 2023 for revocation of the
certificate of confirmation of grant had been sealed and overtaken by events
by its ruling dated 13
th February 20025 on the similar application dated 2
nd
October 2023.
Apparently, the four administrators did not engage or even attempt an
engagement on the distribution of the estate which therefore proved to be a
thorny issue for the parties to resolve on their own. This explains why three
of the administrators took out the summons for confirmation of grant dated
12
th May 2025 and the fourth one filed an affidavit of protest dated 16
th May
2025, in opposition to the proposed mode of distribution of the estate.
15. The protestor/ Second Administrator/ Petitioner [Philip] not being
agreeable to the mode of distribution mode by the First Administrator/
Petitioner [Regina], the Third Administrator [Rosa] and the Fourth
Administrator [Sila] made his own mode of distribution as specified in his
protest affidavit which was filed together with written submissions dated 9
th
June 2025.
On the 15
th July 2025, the court directed that the present be canvassed by
affidavit evidence and written submissions but, on the 19
th August 2025 an
amended summons for confirmation of grant was filed by the first, third and
fourth administrators.
The new summons was allowed by consent of the parties. On 6
th October
2025 with leave to the Protestor/ 2
nd Administrator to file an amended protest
and further submissions if the need arose.
16. It would appear that the need did not arise as the Second
Administrator/ Petitioner/ Protestor relied fully on his submissions dated 9
th
June 2025, in support of the protest. The First, Third and Fourth
Administrators fully relied on their Submissions dated 11
th November 2025,
in support of their application for confirmation of the grant and opposition to
the protest by the Second Administrator.
17. This court considered both the application for confirmation of the grant
and the protest thereto in the light of the rival submissions by the parties.
It is without doubt that both parties agitate for confirmation of the freshest
grant in terms of their respective mode of distribution or proposals specified
in the supporting affidavit dated 19
th August 2025 and the affidavit of protest
dated 16
th May 2025.
As it were, the contest on distribution of the estate is ironically between the
administrators against the Second Administrator. The rest of the
beneficiaries are treated as mere interested parties, yet they held a big state
in the distribution of the estate.
18. When the impugned grant for letters of administration intestate was
issued to the four [4] administrators on 13
th February 2025, they committed
themselves to faithfully undertake the administration of the estate in
accordance with the law and to render a just and true account thereof
whenever required by law so to do.
However, the circumstances arising in this case and the very fact of the
present contest on distribution of the estate is a clear demonstration of the
administer ators abdication of their responsibilities and duties as provided
for in Section 83 of the Succession Act.
19. Be that as it may and for avoidance of doubt this matter is an intestate
succession cause rather than a testate succession. That is why the cause
was filed as a petition for grant of letters of administration intestate and not a
petitioner either for grant of probate or grant of letters of administration with
will annexed. Therefore, the distribution of the free property of the
deceased intestate herein would be in accordance with the provisions of Part
V of the Succession Act and not in accordance with the terms of any form of
will.
20. In any event, the validating of a will whether oral or written would come
into focus if it is introduced or invoked as a factor in the distribution of the
estate of an intestate deceased because by its definition a “Will” is the legal
declaration by a person of his wishes or intentions regarding the disposition
of his property after his death. The Will must be duly made and executed
in accordance with the law. Sections 9 and 11 of the Succession Act
would in the circumstances apply.
21. By and large, a person is deemed to die intestate in respect of all his
free property of which he has not made a will which is capable of taking
effect [See, Section 34 of the Succession Act].
Under Section 3[1] of the Succession Act, free property in relation to a
deceased person means the property of which that person was legally
competent freely to dispose during his lifetime, and in respect of which his
interest has not been terminated by his death.
22. The identification of such free property as belonging to the deceased
either as a legal or beneficial owner thereof would be a key factor in the
distribution of the deceased’s immovable assets or property such as parcels
of land. In that regard, the starting point for distribution of the estate in this
case would be to determine whether the property listed in the affidavit in
support of the petition dated 16
th September 2013, represents the sum total
of and is actually the free property belonging to the deceased available for
distribution amongst his dependants, being only those listed as such in the
petition.
23. Any person not listed in the petition and attempts to make a claim on
the estate property or part thereof would be regarded as an intermeddler or
stranger to the estate unless he/she enjoys a purchaser’s interest in the
property and/or is a creditor of the estate or part thereof. The power to
distribute any capital assets belonging to a deceased person crystallizes
only after confirmation of a grant as provided in Section 71 of the
Succession Act [See, Section 55[1] of the Succession Act].
24. Section 71[1] of the Succession Act provides that: -
“After the expiration of a period of six months, or such shorter,
period as the court may direct under subsection [3], from the date
of any grant of representation, the holder thereof shall apply to
the court for confirmation of the grant in order to empower the
distribution of any capital assets.”
The proviso to Section 71 above states that in cases of intestacy, the grant
of letters of administration shall not be confirmed until the court is satisfied
as to the respective identities and shares of all persons beneficially entitled,
and when confirmed such grant shall specify all such persons and their
respective shares.
25. The identity of the estate property vis-à-vis ownership thereof by the
deceased and the identity of all those person beneficially entitled to a share
of the property are crucial factors in the distribution of the estate.
With regard to the identities of the beneficiaries no dispute arises. The
applicants herein, the protestor and the so-called interested parties are the
actual and true beneficiaries of the deceased’s estate as confirmed by the
chiefs letter dated 2
nd September 2013 and the list of beneficiaries contained
in the affidavit in support of the petition for the grant [form P&A 5].
26. The identity of the entire estate property availed for distribution as
listed in the petition Form P&A 5 is also not disputed. The search
certificates from the lands office filed herein with the petition do confirm and
prove that the listed estate property is all the property of the deceased and
may be segmented into the parts for ease of reference i.e. property situated
within Nandi County and property situated within Uasin-Gishu County. All
these were duly registered in the name of the deceased as the sole
proprietor and none had any encumbrance to it.
27. Thus, this property within Nandi County comprises of Land Parcels
No. Nandi/Kamobo No. 3041, 3042, 3043, 3044, 3045, 3046, 3047 and
3048, while the property within Uasin-Gishu County comprises of Land
Parcels No. Pioneer/Ngeria Block 1 [EATEC]/2650, 2651, 2661 and Land
Parcels No. Ngeria/Chepyakwai Block 2[Kaplelach]/210, 227 and 228.
This is the entire estate property available for distribution to all the named
beneficiaries. Ideally, such role is reserved to the administrators of the
estate after due consultations and consensus with each and every
beneficiary and as mandated under Section 83 of the Succession Act for
purposes of completing the administration of the estate.
28. Section 83 [9] of the Succession Act states that: -
“Within six months from the date of confirmation of the grant or
such longer period as the court may allow, to complete the
administration of the estate in respect of all matter other than
continuing trusts and to produce to the court a full and accurate
account of the completed administration.”
An administrator has a duty Under Section 83 [i] of the Succession Act to:
-
“Complete the administration of the estate in respect of all
matters other than continuing trusts and if required by the court
either of its own motion or on the application of any interested
party in the estate, to produce to the court a full and accurate
account of the completed administration.”
29. It is clear that the administrators herein have not properly discharged
their duties in the manner provided by the law and this explains why they
have differed and taken opposite directions or positions in their attempt to
distribute the estate property. The proposal made by the Applicants is
opposed by the protestor who came up with an alternative proposal. Both
parties have in their respective submissions, supporting and protest
affidavits urged this court to agree with either of them and confirm the grant
accordingly.
30. However, the proposals by both parties are subject to the court’s
acceptance of either proposal, but carry little weight in the application of
statutory principles. [See, Elizabeth Chepkoech Salat Vs. Josephine
Chesang Salat [2015] KECA 650 [KLR].
Part V of the Succession Act sets out the statutory principles applicable in
the distribution of the free property of an intestate deceased.
31. The schemes of distribution of the estate property as formulated by
either party can only be handpicked against the other and be accepted by
the court if it fits well with the statutory principles guiding the distribution of
the estate in an intestate succession and is reflective of a distribution which
is lawful, fair and equitable in the circumstances of this case.
It is rather curious that none of the other Beneficiaries/ Interested Parties
filed affidavits and/or consents in support of either of the proposals. They
seem to have left the distribution in the hands of the four administrators and
taken a neutral position in the matter.
32. The consent alluded to in the Applicants supporting affidavit, dated 19
th
August 2025 and marked Annexture “RJM 2B” does not relate to the
present grant, but rather to a previous grant which was revoked. In itself,
the supporting affidavit is deponed by the first and fourth Administrators
only. The protest affidavit dated 16
th May 2025 is deponed by the Second
Administrator only. There is no affidavit deponed by the Third
Administrator. It would therefore appear and it is indeed so, that the contest
on the distribution of the estate is essentially between three administrators
i.e. the First, Second and Fourth Administrators with the Third Administrator
assuming a lukewarm presence.
33. In any event, the consent alluded to herein was not executed by each
and every beneficiaries and would not therefore have the force of law as a
valid consensus of the signatories on the distribution of the estate property.
This matter being an intestate succession the rules governing distribution of
an intestate deceased as found in Part V of the Succession Act are clearly
designed to protect the interests of all the rightful beneficiaries to ensure fair,
equitable and lawful distribution of the estate property. In that regard, the
rights of spouses and children are given utmost priority.
34. Section 35 [1] of the Succession Act provides for the distribution of
estate property where the intestate deceased has left one surviving spouse
and children as in the present case in the following terms: -
“Subject to the provisions of Section 40, where an intestate has
left one surviving spouse and a child or children, the surviving
spouse shall be entitled to: -
(a)The personal and household effects of the deceased
absolutely: and
(b)A life interest in the whole residue of the net intestate
estate.
Provided that, if the surviving spouse is a widow, that interest
shall determine upon her re-marriage to any person.”
35. Under Section 35 [2] of the Act: -
“A surviving spouse shall during the continuation of the life
interest provided by sub-section [1] have a power of appointment
of all or any part of the capital of the net intestate estate by way of
gift taking immediate effect among the surviving child or children,
but that power shall not be exercised by will nor in such manner
as to take effect at any future date.”
The present application in which the First Administrator, Widow of the
deceased, is the lead applicant may as well be treated as an exercise of her
power of appointment under the aforementioned Sub-Section [2] of
Section 35 of the Succession Act.
36. In the same vein, the protest affidavit by the Second Administrator,
eldest son of the deceased, may be treated as an objection to the manner in
which the First Administrator intends to exercise her power of appointment
[Section 35 [3] and [4] of the Act.
A widow’s life interest is therefore not a matter of choice but a matter of law
meant to safeguard both the children and the surviving spouse of the
deceased, but the ultimate destination of the estate property should be to the
children.
37. In Re the Estate of Jolly Jimmy Githieya [Deceased] [2013 eKLR, it
was held as follows: -
“Life interest creates a trust in favour of the children. That is
why during life interest the surviving spouse cannot deal with the
property as if it belongs to them. However, the law does allow the
surviving spouse to tinker with the life interest. Under Section
35[2] of the law of Succession Act, they may pass all or any part
of the net estate by way of gift among any surviving child or
children. In such case the gift would take effect immediately.
This is called a power of appointment. It is a power exercisable
by the surviving spouse at their discretion.
The exercise of the power of appointment is not a right available
to the children.”
38. The life interest denotes that the surviving spouse has the right to use
and benefit from that estate of the intestate deceased for the course of her
life time, but ownership of the property dies not pass to her/him and instead
held in trust for the children.
The facts of this case leading to the present application and protest clearly
indicate that it was not the intention of the First Administrator to hold in trust
for the beneficiary children of the deceased the entire estate property, but to
exercise her power of appointment to allocate the property to all her
beneficiary children by way of gift.
39. Be that as it may, the entire estate property which may easily be
described as family property ought to be distributed amongst the four
administrators and all the other beneficiaries according to the principles of
fairness and equality.
The Applicants contended that their proposed mode or scheme of
distribution is a reflection of the principles aforementioned. The protestor
contended as much with regard to his mode/scheme of distribution of the
estate.
40. It is worthy of note that a property not in existence or which did not
belong to the deceased as at the time of his death cannot legally be
regarded as being part of the estate of the deceased, hence would be
unavailable for distribution to the beneficiaries. It may also be noted that a
widow’s life interest in the estate property may in some circumstances not be
strictly applied if it would be in the interests of justice to all the affected
parties.
41. Indeed, it was held by the Court of Appeal in M’murithi Vs. Murithi
[2015] KECA 347 [KLR], that: -
“In the circumstances of this case having found that the principle
in Section 38 was the appropriate applicable principle ordering a
life interest would have occasioned injustice to all the
dependants as opting for such an option would have only
bestowed upon the widow Naomi a hovering interest over the
individual interests of all the other beneficiaries thereby making it
impossible for all the beneficiaries to enjoy freely the resulting
benefits from the deceased’s estate. We find it was prudent for
the learned trial judge to accord a direct unencumbered benefit to
the widow Naomi as opposed to a life interest.”
42. Under Section 38 of the Succession Act, where an intestate
deceased is survived by children but no spouse, the net intestate estate
shall be equally divided among the surviving children. Similarly, under
Section 35[5] of the Act, the whole residue of the net intestate estate is to
be divided equally among the surviving children if the surviving spouse dies
or is re-married, in the case of a widow. The law of succession Act therefore
solidifies the element of equality as a vital principle in the distribution of
estate property alongside the principle of fairness.
43. Thus, equality is about ensuring that all the beneficiaries have the
same rights ad opportunities. This means that every beneficiary must be
given similar opportunities or resources regardless of their personal
circumstances. Fairness on the other hand is rather subjective and may
vary from person to person, but it is about treating people rightly and equally
taking into accounts individual needs and circumstances. Different people
may thus be treated differently, but in a way that would be appropriate to
their specific situation.
44. The principle of equal distribution of the net estate of an intestate
deceased to the surviving children irrespective of gender or whether they are
married or not or comfortable in their marriage is enshrined in Section 38 of
the Succession Act. [See, Stephen Gitonga Mmurithi Vs. Faith Murithi
[2015] eKLR] [Supra].
45. Both principles of fairness and equality are what justice is all about and
this means that in the circumstances of this case the beneficiaries must be
held accountable to the same laws and standards regardless of their
personal circumstances. This court was therefore called upon to consider
whether the schemes of distribution of the estate property presented herein
by the Applicants and the protestor respectively are lawful, just, fair and
equitable for purposes of confirming the present grant of letter of
administration and distributing the estate property among the beneficiaries.
46. If both schemes pass the test of fairness and equality, then the
resultant effect would be a hybrid distribution of the deceased’s estate, but if
one passes the test at the expense of the other, then this court would have
reason to accept it and confirm the grant in accordance therewith.
47. In that regard, it is apparent that the most contentious of the entire
estate are the parcels of land situated in Nandi County rather than those in
Uasin-Gishu County. These are the parcels described as
Nandi/Kamobo/3041, 3042, 3042, 3044, 3045, 3046, 3047 and 3048,
whose ownership was traced to the deceased by dint of the documents from
the lands office. Indeed, the ownership of the parcels in Uasin-Gishu was
traced to the deceased through the same documents. These are parcels
described as Ngeria/Chepyakwai/Block 2[Kaplelach]/210,227 and 228
and Pioneer/Ngeria/Block 1[EATEC]/2650, 2651 and 2661.
48. As regards, the proposal made by the applicants it is clearly evident
that it was founded on an alleged “Will” made by the deceased and
expressed in a handwritten document whose photocopy is annexed to the
Applicant’s supporting affidavit and marked exhibit “RJM – 1A.”
The Applicant’s averments and submissions on the document was an
invitation to this court to treat the document as a valid will of the deceased if
not his final wishes on how his estate property should be distributed to his
dependant’s when his time in this world and “all its evils” arrived.
49. The Protestor disowned the said document and contended that it never
existed and/or was never made by the deceased as alleged.
The obligation to prove the existence and validity of the document as being
the will and final testament of the deceased or his finals wishes on the
distribution of his property lay with the applicants.
50. Part II of the Law of Succession Act provides for Wills, such that
every person who is of sound mind and not a minor may dispose of all or
any of his free property by Will, and may thereby make any disposition by
reference to any secular or religious law as he chooses.
Under Section 8 of the Act, a Will may be made either orally or in writing
and shall be valid only if it passes the tests prescribed in Section 9 and
Section 11 of the Act.
51. The Court of Appeal in the case of Beth Wambui & Another Vs.
Gathoni Gikonyo & 3 Others [1988] eKLR, considered a test
[...truncated]
estate of the Late Kipchumba Misoy [deceased], it may nonetheless be
stated that upon the death of the deceased on or about the 11
th June 2002 at
the age of fifty nine [59] years the petition for grant of letters of
administration Intestate respecting the deceased’s estate was presented in
court on 18
th September 2013 by the surviving widow, Regina Jepkoech
Misoy.
2. The Chief’s letter dated 2
nd September 2013 accompanying the petition
showed that the deceased was survived by the Petitioner as the sole wife
and twelve [12] children i.e. Six [6] daughters and six [6] sons. The eldest
daughter was Rose Cheptoo and the eldest son, Philip Chumba. The
youngest daughter was Julia Chepleting and the youngest son, Sila
Chumba. All the twelve children were already adults at the time of the
presentation of the Petition and were all treated as dependants of the
deceased along with their mother, the Petitioner.
3. In the petition, the assets or property identified as belonging to the deceased
and available for distribution amongst the dependants were the following: -
(a)Land Parcel No. Pioneer/Ngeria Block 1 [EATEC]/2651
(b)Land Parcels Nos. Ngeria/Chepyakwai Block 2[Kaplelach]/227,
210
(c)Land Parcel No. Ngeria Chepyakwai Block 2[Kaplelach]/228
(d)Land Parcels Nos. Nandi/Kamobo/3047, 3048, 3046
(e)Land Parcel No. Nandi/Komobo/3043
(f) Land Parcel No. Nandi/Komobo/3041
(g)Land Parcel No. Nandi/Komobo/3042
(h)Land Parcel No. Nandi/Komobo/3044
(i) Land Parcel No. Nandi/Komobo/3045
(j) Land Parcel No. Pioneer/Ngeria Block 1[EATEC]/2661
(k)Land Parcel No. Pioneer/Ngeria Block 1[EATEC]/2650
4. It was on the basis of all the information provided in the petition that on the
19
th December 2013, the court issued the foundational grant of letters of
administration intestate, but this was to be later amended on the 11
th June
2019 to include the deceased’s eldest, Philip Kipchirchir Chumba as a Co-
Administrator of the estate.
The amendment was prompted by an application made by Philip for
revocation of the grant. The application was dated the 17
th April 2018.
5. Section 71 of the Law of Succession Act, requires that a grant be
confirmed after the expiration of six months from the date of issue. This
provision read with Section 83[9] of the Succession Act indicate that the
confirmation of the grant and the administration of the estate ought to be
undertaken within a short period of time. Therefore, failure or neglect to
complete the administration of the estate expeditiously would amount to a
breach of the Succession Act. It was clearly against that background that
the application for revocation of the grant was made by the deceased’s
eldest son.
6. Indeed, it was stated in the summons for revocation of grant that the grant
was in-operative due to the failure of the then sole administrator widow of
the deceased to have it confirmed within a period of one year. It was also
stated that the sole administrator had sub-divided and sold part of the estate
without the consent of all the other beneficiaries and had also sub-divided a
part of the estate and allocated it to herself and the youngest son of the
deceased, Sila Kiplangat.
7. In its ruling of the 11
th April 2019 on the application for revocation in which
the sole administrator widow of the deceased was the Respondent, the
Court stated as follows: -
“One thing is clear, the grant of letters of administration had not
been confirmed and that issuance in no way give the Respondent
authority to complete the transaction she purported to engage
in.
Secondly, there is no evidence that the deceased had sold the
parcels to the named purchasers as no sale agreement was
annexed nor did any of the purported purchasers swear an
affidavit to state the correct position.
The Respondent alludes to a will whose copy she has not
annexed and the allegation remains hot air.
As for the parcels she concedes to have sold, the Respondent
does not say how much she sold them for and she must render
proper and detailed accounts within 21 days of this ruling.”
8. The court further stated that: -
“Certainly the Respondent ranks first in order of priority as
regards who ought to apply for a grant of letters of
administration, but that does not bar other beneficiaries from
seeking to be co-administrators to stem the fast rate of disposal
of the estate even before confirmation of grant.
Consequently, the grant issued to the Respondent is revoked and
a fresh one do issue in favour of the Applicant and the
Respondent as joint administrators.
The findings aforementioned had the ultimate effect of revoking the original
grant issued on 19
th December 2013 to the surviving widow of the deceased,
Regina Jepkoech Misoi and substituting it with the fresh grant dated 11
th
June 2019 in which the widow and her eldest son were named as the co-
administrators of the estate and directed to file respective submissions on
the mode of distribution of the estate.
9. This meant that the entire estate was restored to its original form as
indicated in the affidavit in support of the petition dated 16
th September 2013
[Form P&A 5]. Therefore, anything that may have been done in altering the
original status of the entire estate on the strength of the revoked grant was
not only unlawful, but also null and void “ab-initio.” This was indeed
confirmed by the court in its ruling of the 12
th February 2020 on an
application by the deceased’s eldest son [Philip] for cancellation of new
titles issued on the strength of the revoked grant.
10. The direction given to the deceased’s widow by the court on 11
th April
2019, to render proper and detailed accounts was apparently not followed.
The process of confirming the fresh grant and distributing the estate to the
dependants/ beneficiaries was therefore to commence on a clean slate.
That was the reason why the parties were directed by the court to file
respective submissions on the mode of distribution of the estate.
Seemingly, the application by the Co-Administrator/ 2
nd Petitioner dated 28
th
August 2020 for confirmation of the fresh grant was in compliance with the
court’s directions.
11. This court allowed that application on the 4
th July 2023 when it came
up for hearing. In that regard, the certificate of confirmation of the fresh
grant was issued on 5
th July 2023, but was followed by three [3] separate
application for its revocation. The first such application was dated 2
nd
October 2023 by the Co-Administrator/ 1
st Petitioner wife of the deceased
while the second application was dated 8
th November 2023 by the
beneficiaries children of the deceased, Sila Chumba, Zipporah Misoi and
Teresa Chepkosgei. The third application was dated 29
th November 2023
by other beneficiaries children of the deceased, Richard Kipkoros Chumba
and Patrick Kipkemboi Chumba.
12. On 15
th May 2024, the court directed that the application dated 2
nd
October 2023 be heard in priority to the other two similar applications. This
court, after hearing the application rendered its ruling on 13
th February 2025,
in which it concluded as follows: -
“in sum, the present application is well merited and is hereby
allowed to the extent that the impugned certificate of confirmation
of grant issued by this court on 5
th July 2023 be and is hereby
revoked forthwith and any transaction arising from it is hereby
declared null and void “ab-initio” to the extent that all the titles
respecting the estate or part thereof do revert to the name of the
deceased until such time that the estate shall be properly and
lawfully distributed amongst the true beneficiaries.
In order to prevent an acrimonious distribution of the estate and
facilitate a smooth and peaceful process of distribution the
impugned grant of letters of administration intestate issued to the
first and second petitioners by dint of the ruling of the court made
on 11
th April 2019, which gave rise, to the impugned summons for
confirmation of grant dated 28
th August 2020, must be and is
hereby revoked together with the impugned certificate of
confirmation of grant.”
13. The court went further to issue another fresh grant of letters of
administration intestate to four [4] Co-Administrators viz: -
1. Regina Jepkoech Misoy [First Administrator/ Petitioner]
2. Philip Kipchirchir Chumba [Second Administrator/ Petitioner]
3. Rose Chpetoo [deceased’s eldest daughter]
4. Sila Chumba [deceased’s youngest son]
The four administrators were directed by the court to engage and come up
with a fresh summons for confirmation of the new grant within a period of six
months or any other shorter period that they may deem necessary.
14. On the 15
th May 2025, the court ruled that the other two applications
dated 8
th November 2023 and 29
th November 2023 for revocation of the
certificate of confirmation of grant had been sealed and overtaken by events
by its ruling dated 13
th February 20025 on the similar application dated 2
nd
October 2023.
Apparently, the four administrators did not engage or even attempt an
engagement on the distribution of the estate which therefore proved to be a
thorny issue for the parties to resolve on their own. This explains why three
of the administrators took out the summons for confirmation of grant dated
12
th May 2025 and the fourth one filed an affidavit of protest dated 16
th May
2025, in opposition to the proposed mode of distribution of the estate.
15. The protestor/ Second Administrator/ Petitioner [Philip] not being
agreeable to the mode of distribution mode by the First Administrator/
Petitioner [Regina], the Third Administrator [Rosa] and the Fourth
Administrator [Sila] made his own mode of distribution as specified in his
protest affidavit which was filed together with written submissions dated 9
th
June 2025.
On the 15
th July 2025, the court directed that the present be canvassed by
affidavit evidence and written submissions but, on the 19
th August 2025 an
amended summons for confirmation of grant was filed by the first, third and
fourth administrators.
The new summons was allowed by consent of the parties. On 6
th October
2025 with leave to the Protestor/ 2
nd Administrator to file an amended protest
and further submissions if the need arose.
16. It would appear that the need did not arise as the Second
Administrator/ Petitioner/ Protestor relied fully on his submissions dated 9
th
June 2025, in support of the protest. The First, Third and Fourth
Administrators fully relied on their Submissions dated 11
th November 2025,
in support of their application for confirmation of the grant and opposition to
the protest by the Second Administrator.
17. This court considered both the application for confirmation of the grant
and the protest thereto in the light of the rival submissions by the parties.
It is without doubt that both parties agitate for confirmation of the freshest
grant in terms of their respective mode of distribution or proposals specified
in the supporting affidavit dated 19
th August 2025 and the affidavit of protest
dated 16
th May 2025.
As it were, the contest on distribution of the estate is ironically between the
administrators against the Second Administrator. The rest of the
beneficiaries are treated as mere interested parties, yet they held a big state
in the distribution of the estate.
18. When the impugned grant for letters of administration intestate was
issued to the four [4] administrators on 13
th February 2025, they committed
themselves to faithfully undertake the administration of the estate in
accordance with the law and to render a just and true account thereof
whenever required by law so to do.
However, the circumstances arising in this case and the very fact of the
present contest on distribution of the estate is a clear demonstration of the
administer ators abdication of their responsibilities and duties as provided
for in Section 83 of the Succession Act.
19. Be that as it may and for avoidance of doubt this matter is an intestate
succession cause rather than a testate succession. That is why the cause
was filed as a petition for grant of letters of administration intestate and not a
petitioner either for grant of probate or grant of letters of administration with
will annexed. Therefore, the distribution of the free property of the
deceased intestate herein would be in accordance with the provisions of Part
V of the Succession Act and not in accordance with the terms of any form of
will.
20. In any event, the validating of a will whether oral or written would come
into focus if it is introduced or invoked as a factor in the distribution of the
estate of an intestate deceased because by its definition a “Will” is the legal
declaration by a person of his wishes or intentions regarding the disposition
of his property after his death. The Will must be duly made and executed
in accordance with the law. Sections 9 and 11 of the Succession Act
would in the circumstances apply.
21. By and large, a person is deemed to die intestate in respect of all his
free property of which he has not made a will which is capable of taking
effect [See, Section 34 of the Succession Act].
Under Section 3[1] of the Succession Act, free property in relation to a
deceased person means the property of which that person was legally
competent freely to dispose during his lifetime, and in respect of which his
interest has not been terminated by his death.
22. The identification of such free property as belonging to the deceased
either as a legal or beneficial owner thereof would be a key factor in the
distribution of the deceased’s immovable assets or property such as parcels
of land. In that regard, the starting point for distribution of the estate in this
case would be to determine whether the property listed in the affidavit in
support of the petition dated 16
th September 2013, represents the sum total
of and is actually the free property belonging to the deceased available for
distribution amongst his dependants, being only those listed as such in the
petition.
23. Any person not listed in the petition and attempts to make a claim on
the estate property or part thereof would be regarded as an intermeddler or
stranger to the estate unless he/she enjoys a purchaser’s interest in the
property and/or is a creditor of the estate or part thereof. The power to
distribute any capital assets belonging to a deceased person crystallizes
only after confirmation of a grant as provided in Section 71 of the
Succession Act [See, Section 55[1] of the Succession Act].
24. Section 71[1] of the Succession Act provides that: -
“After the expiration of a period of six months, or such shorter,
period as the court may direct under subsection [3], from the date
of any grant of representation, the holder thereof shall apply to
the court for confirmation of the grant in order to empower the
distribution of any capital assets.”
The proviso to Section 71 above states that in cases of intestacy, the grant
of letters of administration shall not be confirmed until the court is satisfied
as to the respective identities and shares of all persons beneficially entitled,
and when confirmed such grant shall specify all such persons and their
respective shares.
25. The identity of the estate property vis-à-vis ownership thereof by the
deceased and the identity of all those person beneficially entitled to a share
of the property are crucial factors in the distribution of the estate.
With regard to the identities of the beneficiaries no dispute arises. The
applicants herein, the protestor and the so-called interested parties are the
actual and true beneficiaries of the deceased’s estate as confirmed by the
chiefs letter dated 2
nd September 2013 and the list of beneficiaries contained
in the affidavit in support of the petition for the grant [form P&A 5].
26. The identity of the entire estate property availed for distribution as
listed in the petition Form P&A 5 is also not disputed. The search
certificates from the lands office filed herein with the petition do confirm and
prove that the listed estate property is all the property of the deceased and
may be segmented into the parts for ease of reference i.e. property situated
within Nandi County and property situated within Uasin-Gishu County. All
these were duly registered in the name of the deceased as the sole
proprietor and none had any encumbrance to it.
27. Thus, this property within Nandi County comprises of Land Parcels
No. Nandi/Kamobo No. 3041, 3042, 3043, 3044, 3045, 3046, 3047 and
3048, while the property within Uasin-Gishu County comprises of Land
Parcels No. Pioneer/Ngeria Block 1 [EATEC]/2650, 2651, 2661 and Land
Parcels No. Ngeria/Chepyakwai Block 2[Kaplelach]/210, 227 and 228.
This is the entire estate property available for distribution to all the named
beneficiaries. Ideally, such role is reserved to the administrators of the
estate after due consultations and consensus with each and every
beneficiary and as mandated under Section 83 of the Succession Act for
purposes of completing the administration of the estate.
28. Section 83 [9] of the Succession Act states that: -
“Within six months from the date of confirmation of the grant or
such longer period as the court may allow, to complete the
administration of the estate in respect of all matter other than
continuing trusts and to produce to the court a full and accurate
account of the completed administration.”
An administrator has a duty Under Section 83 [i] of the Succession Act to:
-
“Complete the administration of the estate in respect of all
matters other than continuing trusts and if required by the court
either of its own motion or on the application of any interested
party in the estate, to produce to the court a full and accurate
account of the completed administration.”
29. It is clear that the administrators herein have not properly discharged
their duties in the manner provided by the law and this explains why they
have differed and taken opposite directions or positions in their attempt to
distribute the estate property. The proposal made by the Applicants is
opposed by the protestor who came up with an alternative proposal. Both
parties have in their respective submissions, supporting and protest
affidavits urged this court to agree with either of them and confirm the grant
accordingly.
30. However, the proposals by both parties are subject to the court’s
acceptance of either proposal, but carry little weight in the application of
statutory principles. [See, Elizabeth Chepkoech Salat Vs. Josephine
Chesang Salat [2015] KECA 650 [KLR].
Part V of the Succession Act sets out the statutory principles applicable in
the distribution of the free property of an intestate deceased.
31. The schemes of distribution of the estate property as formulated by
either party can only be handpicked against the other and be accepted by
the court if it fits well with the statutory principles guiding the distribution of
the estate in an intestate succession and is reflective of a distribution which
is lawful, fair and equitable in the circumstances of this case.
It is rather curious that none of the other Beneficiaries/ Interested Parties
filed affidavits and/or consents in support of either of the proposals. They
seem to have left the distribution in the hands of the four administrators and
taken a neutral position in the matter.
32. The consent alluded to in the Applicants supporting affidavit, dated 19
th
August 2025 and marked Annexture “RJM 2B” does not relate to the
present grant, but rather to a previous grant which was revoked. In itself,
the supporting affidavit is deponed by the first and fourth Administrators
only. The protest affidavit dated 16
th May 2025 is deponed by the Second
Administrator only. There is no affidavit deponed by the Third
Administrator. It would therefore appear and it is indeed so, that the contest
on the distribution of the estate is essentially between three administrators
i.e. the First, Second and Fourth Administrators with the Third Administrator
assuming a lukewarm presence.
33. In any event, the consent alluded to herein was not executed by each
and every beneficiaries and would not therefore have the force of law as a
valid consensus of the signatories on the distribution of the estate property.
This matter being an intestate succession the rules governing distribution of
an intestate deceased as found in Part V of the Succession Act are clearly
designed to protect the interests of all the rightful beneficiaries to ensure fair,
equitable and lawful distribution of the estate property. In that regard, the
rights of spouses and children are given utmost priority.
34. Section 35 [1] of the Succession Act provides for the distribution of
estate property where the intestate deceased has left one surviving spouse
and children as in the present case in the following terms: -
“Subject to the provisions of Section 40, where an intestate has
left one surviving spouse and a child or children, the surviving
spouse shall be entitled to: -
(a)The personal and household effects of the deceased
absolutely: and
(b)A life interest in the whole residue of the net intestate
estate.
Provided that, if the surviving spouse is a widow, that interest
shall determine upon her re-marriage to any person.”
35. Under Section 35 [2] of the Act: -
“A surviving spouse shall during the continuation of the life
interest provided by sub-section [1] have a power of appointment
of all or any part of the capital of the net intestate estate by way of
gift taking immediate effect among the surviving child or children,
but that power shall not be exercised by will nor in such manner
as to take effect at any future date.”
The present application in which the First Administrator, Widow of the
deceased, is the lead applicant may as well be treated as an exercise of her
power of appointment under the aforementioned Sub-Section [2] of
Section 35 of the Succession Act.
36. In the same vein, the protest affidavit by the Second Administrator,
eldest son of the deceased, may be treated as an objection to the manner in
which the First Administrator intends to exercise her power of appointment
[Section 35 [3] and [4] of the Act.
A widow’s life interest is therefore not a matter of choice but a matter of law
meant to safeguard both the children and the surviving spouse of the
deceased, but the ultimate destination of the estate property should be to the
children.
37. In Re the Estate of Jolly Jimmy Githieya [Deceased] [2013 eKLR, it
was held as follows: -
“Life interest creates a trust in favour of the children. That is
why during life interest the surviving spouse cannot deal with the
property as if it belongs to them. However, the law does allow the
surviving spouse to tinker with the life interest. Under Section
35[2] of the law of Succession Act, they may pass all or any part
of the net estate by way of gift among any surviving child or
children. In such case the gift would take effect immediately.
This is called a power of appointment. It is a power exercisable
by the surviving spouse at their discretion.
The exercise of the power of appointment is not a right available
to the children.”
38. The life interest denotes that the surviving spouse has the right to use
and benefit from that estate of the intestate deceased for the course of her
life time, but ownership of the property dies not pass to her/him and instead
held in trust for the children.
The facts of this case leading to the present application and protest clearly
indicate that it was not the intention of the First Administrator to hold in trust
for the beneficiary children of the deceased the entire estate property, but to
exercise her power of appointment to allocate the property to all her
beneficiary children by way of gift.
39. Be that as it may, the entire estate property which may easily be
described as family property ought to be distributed amongst the four
administrators and all the other beneficiaries according to the principles of
fairness and equality.
The Applicants contended that their proposed mode or scheme of
distribution is a reflection of the principles aforementioned. The protestor
contended as much with regard to his mode/scheme of distribution of the
estate.
40. It is worthy of note that a property not in existence or which did not
belong to the deceased as at the time of his death cannot legally be
regarded as being part of the estate of the deceased, hence would be
unavailable for distribution to the beneficiaries. It may also be noted that a
widow’s life interest in the estate property may in some circumstances not be
strictly applied if it would be in the interests of justice to all the affected
parties.
41. Indeed, it was held by the Court of Appeal in M’murithi Vs. Murithi
[2015] KECA 347 [KLR], that: -
“In the circumstances of this case having found that the principle
in Section 38 was the appropriate applicable principle ordering a
life interest would have occasioned injustice to all the
dependants as opting for such an option would have only
bestowed upon the widow Naomi a hovering interest over the
individual interests of all the other beneficiaries thereby making it
impossible for all the beneficiaries to enjoy freely the resulting
benefits from the deceased’s estate. We find it was prudent for
the learned trial judge to accord a direct unencumbered benefit to
the widow Naomi as opposed to a life interest.”
42. Under Section 38 of the Succession Act, where an intestate
deceased is survived by children but no spouse, the net intestate estate
shall be equally divided among the surviving children. Similarly, under
Section 35[5] of the Act, the whole residue of the net intestate estate is to
be divided equally among the surviving children if the surviving spouse dies
or is re-married, in the case of a widow. The law of succession Act therefore
solidifies the element of equality as a vital principle in the distribution of
estate property alongside the principle of fairness.
43. Thus, equality is about ensuring that all the beneficiaries have the
same rights ad opportunities. This means that every beneficiary must be
given similar opportunities or resources regardless of their personal
circumstances. Fairness on the other hand is rather subjective and may
vary from person to person, but it is about treating people rightly and equally
taking into accounts individual needs and circumstances. Different people
may thus be treated differently, but in a way that would be appropriate to
their specific situation.
44. The principle of equal distribution of the net estate of an intestate
deceased to the surviving children irrespective of gender or whether they are
married or not or comfortable in their marriage is enshrined in Section 38 of
the Succession Act. [See, Stephen Gitonga Mmurithi Vs. Faith Murithi
[2015] eKLR] [Supra].
45. Both principles of fairness and equality are what justice is all about and
this means that in the circumstances of this case the beneficiaries must be
held accountable to the same laws and standards regardless of their
personal circumstances. This court was therefore called upon to consider
whether the schemes of distribution of the estate property presented herein
by the Applicants and the protestor respectively are lawful, just, fair and
equitable for purposes of confirming the present grant of letter of
administration and distributing the estate property among the beneficiaries.
46. If both schemes pass the test of fairness and equality, then the
resultant effect would be a hybrid distribution of the deceased’s estate, but if
one passes the test at the expense of the other, then this court would have
reason to accept it and confirm the grant in accordance therewith.
47. In that regard, it is apparent that the most contentious of the entire
estate are the parcels of land situated in Nandi County rather than those in
Uasin-Gishu County. These are the parcels described as
Nandi/Kamobo/3041, 3042, 3042, 3044, 3045, 3046, 3047 and 3048,
whose ownership was traced to the deceased by dint of the documents from
the lands office. Indeed, the ownership of the parcels in Uasin-Gishu was
traced to the deceased through the same documents. These are parcels
described as Ngeria/Chepyakwai/Block 2[Kaplelach]/210,227 and 228
and Pioneer/Ngeria/Block 1[EATEC]/2650, 2651 and 2661.
48. As regards, the proposal made by the applicants it is clearly evident
that it was founded on an alleged “Will” made by the deceased and
expressed in a handwritten document whose photocopy is annexed to the
Applicant’s supporting affidavit and marked exhibit “RJM – 1A.”
The Applicant’s averments and submissions on the document was an
invitation to this court to treat the document as a valid will of the deceased if
not his final wishes on how his estate property should be distributed to his
dependant’s when his time in this world and “all its evils” arrived.
49. The Protestor disowned the said document and contended that it never
existed and/or was never made by the deceased as alleged.
The obligation to prove the existence and validity of the document as being
the will and final testament of the deceased or his finals wishes on the
distribution of his property lay with the applicants.
50. Part II of the Law of Succession Act provides for Wills, such that
every person who is of sound mind and not a minor may dispose of all or
any of his free property by Will, and may thereby make any disposition by
reference to any secular or religious law as he chooses.
Under Section 8 of the Act, a Will may be made either orally or in writing
and shall be valid only if it passes the tests prescribed in Section 9 and
Section 11 of the Act.
51. The Court of Appeal in the case of Beth Wambui & Another Vs.
Gathoni Gikonyo & 3 Others [1988] eKLR, considered a test
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