This cause relates to the estate of Kipinet Ene Toyanga Saire who died on 3rd of April 2023 aged 79 years. According to the chief’s letter dated 23rd October 2023, the deceased left behind 10 survivors and the following three properties in her name; L.R NO KJD/OLCHORO-ONYORE/29670, L.R NO KJD/OLCHORO- ONYORE/9904 and Parcel L.R NO A73 Olooloitikoshi T.C all estimated at about 32,000,000.00
Yiangaso Ole Toyanga one of the three sons of the deceased petitioned for letters of administration intestate on 26th October 2023 with the consent of all the other surviving beneficiaries except Peninah Sekenet Parsere, the widow of Peter Kilenya Toyianga (deceased) who did not consent to the petition for grant of letters of administration to Yiangaso Ole Toyanga, the deceased elder son.
The petition for letters of administration nonetheless, proceeded and a temporary grant of letters of Administration was issued to the petitioner on 15th March 2024.
While the grant of letters of Administration was pending confirmation, Peninah Sekenet Parsere and her sister Diana Sokoine Melita filed an affidavit of protest against confirmation of grant dated 11th June 2024 and subsequently a Notice of motion application dated 15th November 2024. Prior to that, on 17th July 2024, the petitioner filed summons for confirmation of grant supported by the affidavit of the petitioner and complete with the schedule of distribution.
The Application
The Notice of motion application dated 15th November 2024, the subject of this ruling seeks in the main Stay of the proceedings in succession case No. E070 of 2023 -the present cause- until the ELC Case No E025 of 2024 and Succession cause No E021 of 2023 are heard and determined.
The applicant avers that the title documents in relation to parcels of land NO L.R NO KJD/OLCHORO-ONYORE/29670, L.R NO KJD/OLCHORO- ONYORE/9904 were at all material time before the demise of Kipinet Ene Toyanga Saire in her custody and that after the passing of the matriarch, she was ordered to surrender the title to assistant chief Wilfred Toiyanga which she did. She contends that both parcels of land though registered in the name of Kipinet Ene Toyanga, were to devolve upon Peter Parsere Toyianga her late husband upon the death of their matriarch. That NO L.R NO KJD/OLCHORO-ONYORE/29670, was curved out of her late husband share of inheritance and the same was to devolve back to her husband upon demise of the matriarch while L.R NO KJD/OLCHORO- ONYORE/9904 was to devolve to her husband in accordance with Maasai culture where the last-born son inherits his mothers share of the property.
The applicants allude to meetings severally held with the elders where decision was taken that as the widow of the last-born son she was entitles to the share of the property.
The applicant avers that she filed succession cause No E021 of 2023 in respect to the estate of her late husband in which the petitioner in the present cause file an application for revocation of grant issued in her favour and lay claim to 17.5 acres from the estate on account of sale allegedly entered with her deceased husband and the matriarch. The applicant also contends that there exist another suit ELC E025 of 2024 between the petitioner on one hand and the estate of Peter Parsere Toyianga and Kipinet Ene Toyanga on the other. The applicant contention is that as a spouse of the deceased husband, there is no proof that the petitioner had entered into any sale of land agreement with Peter Parsere.
The applicant contends that there are serious issues that need to be sorted out first before the present cause could be confirmed and the estate distributed. That if the summons for confirmation is allowed to proceed without resolution of the outstanding issues, the applicant and his children would be prejudice greatly ultimately occasioning grave injustice. She contends that her family deserve 13 acres from the estate of Kipinet Ene Toyanga Saire and not the 6 acres proposed by the petitioner in the present cause. The petitioner is also accused of taking 4.5 acres from the applicants deceased husband several parcel of land such as KAJIADO/OLCHORO ONYORE/37388, 37389, 37390, 37391 and 37392 all excised from L.R NO KJD/OLCHORO- ONYORE/3065.
It is the applicant prayer that there is urgent need to stay proceedings in this matter and allow the other related matter run its cause.
The respondent filed a replying affidavit dated 1st April 2025 in opposition to the application contending that the application is frivolous, vexatious and an abuse of the court process and that the present cause was filed first as opposed to the two other matters that were filed later. Therefore, the present cause should be determined in priority. The Respondent further aver that there is no evidence of the matters alluded to by the applicant as no proceedings or pleadings have been attached as evidence of the fact asserted by the applicant. Thirdly, the respondent argues that the issues raised by the applicant could be handled in the present cause where they are party to it and that in any case the outcome of the matters pending have little or no bearing to the present cause.
The court is therefore urged to dismiss the applicant’s application as to grant the order of stay is highly prejudicial to the respondent.
I have considered the parties pleadings, submissions and the authorities supplied which I have found useful. Based on the above, the issue for determination is whether this court should grant a stay of the proceedings in this matter pending the hearing and determination ELC case No E025 of 2024 and Succession cause E021 of 2023.
As stated earlier in this ruling, the trigger to the present application is the filing of the petition for letters of administration and subsequent summons for confirmation of grant by the petitioner in this cause in which the shares and distribution of the properties in respect to the estate Kipinet Ene Toyanga Saire, the petitioner’s mother was objected to by the applicant. In the proposed distribution, the applicant shares representing her deceased husband was ascertained and determined by the petitioner who proposed that applicant get 2 acres in respect to KJD/OLCHORO ONYORE/29670 and 6 acres in KJD/OLCHORO ONYORE/9904. These proposal by the petitioner is not acceptable to the applicant who argues that the estate of her deceased husband is entitled to more. That the deceased Peter Parsere Toyianga is entitled to 12.5 or 13 acres in respect of KJD/OLCHORO ONYORE/9904 and KJD/OLCHORO ONYORE/29670.
Section 47 of the Law of succession grants the probate court jurisdiction to entertain any application and determine any dispute under the Act and to pronounce such decrees and make such orders as may be expedient.
Although the respondent contend that the applicant failed to supply the pleadings in respect to ELC NO E025 of 2024 and E021 of 2023, there is a Replying affidavit filed in this matter relating to the pending ELC case, dated 9th July 2024 and sworn by the petitioner herein. In it the petitioner aver that he bought 12.5 acres of land from his late mother which was adjacent to his deceased brother Peter Parsere home. The affidavit speaks to an agreement between the petitioner and the deceased person in great details.
The court was also able to access the Case Tracking System in respect to E021 of 2023 In the matter of the estate of Peter Toyianka Saire and read a replying affidavit dated 1st October 2024 sworn Yiangaso Ole Toyonga the petitioner herein in which he filed an application for revocation of grant issued to the applicant on the basis that he is a creditor of his brothers’ estate.
It is therefore clear to this court that there are outstanding issues between the petitioner and the applicant in this cause touching on the assets of two estates in which both parties are beneficiaries and or survivors. That is the estate of Kipinet Ene Toyanga Saire and Peter Parsere Toyanga.
In the Re Estate of Francis Peter Njuguna Rurigi (2016) eklr the court observed that;
“when a claim is brought by anyone, whether a beneficiary or survivor of the deceased or even a third party, that he has an interest of one sort or other in estate property, such property shall be set aside or be removed from the schedule of assets to await determination of the question as to the interest of the claimant”
In Re estate of Julius Ndubi Javan (2018) eklt Gikonyo J observed that where an asset is contested, then such asset should be set aside to allow the claimants or even the administrator, to initiate separate proceedings, to have the issue of ownership or other, resolved in those separate proceedings. The court further observed citing the case of Everline Atiang Wanyama vs William Osayo Siroko & another [2014] eklr and re Estate of Kimani Kinuthia [2008] eklr as per Tuiyot J and Ibrahim J respectively as he then was that probate and administration process is not designed for handling of highly contested matters, and the resolution of such lies outside the probate process… proceedings for confirmation or revocation of grant have been declared unsuitable for determination on such contests as to ownership of property.
Transaction relating to land are governed by Land Registration Act 2012 and agreement for sale of land or any disposition thereof fall under and shall be dealt with by the court established for that purpose. In Re Estate of Mathew Liluma Shinjili[2022] KEHC Musyoka J observed that Rule 41(3) of the probate and Administration Rules enable the probate court to remove a contested asset from the schedule of distribution to enable the parties initiate separate proceedings to determine the status of the ownership of the said contested asset
This court, sitting as a probate court cannot determine the question on whether or not the petitioner herein bought parcel of land from both his mother and brother both deceased.
As there is already filed ELC NOE025 of 2024 involving the petitioner, the applicant and other interested parties it is in the interested of justice that the present cause be stayed pending resolution of the ELC matter as the determination of the ELC matter either way will have significant bearing on the present cause.
Allowing summons for confirmation to procced in this cause is likely to occasion prejudice on the part of the applicant if the ELC court finds in her favour. If, however the court agrees with the petitioner, then confirmation of the grant and distribution of the assets shall proceed to its conclusion.
Consequently,
1 The Notice of Motion dated 15th November 2024 is hereby allowed.
2 There Shall be a stay of proceedings in Succession Cause No E070 of 2023 until the ELC case Number E025 of 2024 is Heard and determined.
3 That there shall be no Order as to costs.
Yiangaso Ole Toyanga one of the three sons of the deceased petitioned for letters of administration intestate on 26th October 2023 with the consent of all the other surviving beneficiaries except Peninah Sekenet Parsere, the widow of Peter Kilenya Toyianga (deceased) who did not consent to the petition for grant of letters of administration to Yiangaso Ole Toyanga, the deceased elder son.
The petition for letters of administration nonetheless, proceeded and a temporary grant of letters of Administration was issued to the petitioner on 15th March 2024.
While the grant of letters of Administration was pending confirmation, Peninah Sekenet Parsere and her sister Diana Sokoine Melita filed an affidavit of protest against confirmation of grant dated 11th June 2024 and subsequently a Notice of motion application dated 15th November 2024. Prior to that, on 17th July 2024, the petitioner filed summons for confirmation of grant supported by the affidavit of the petitioner and complete with the schedule of distribution.
The Application
The Notice of motion application dated 15th November 2024, the subject of this ruling seeks in the main Stay of the proceedings in succession case No. E070 of 2023 -the present cause- until the ELC Case No E025 of 2024 and Succession cause No E021 of 2023 are heard and determined.
The applicant avers that the title documents in relation to parcels of land NO L.R NO KJD/OLCHORO-ONYORE/29670, L.R NO KJD/OLCHORO- ONYORE/9904 were at all material time before the demise of Kipinet Ene Toyanga Saire in her custody and that after the passing of the matriarch, she was ordered to surrender the title to assistant chief Wilfred Toiyanga which she did. She contends that both parcels of land though registered in the name of Kipinet Ene Toyanga, were to devolve upon Peter Parsere Toyianga her late husband upon the death of their matriarch. That NO L.R NO KJD/OLCHORO-ONYORE/29670, was curved out of her late husband share of inheritance and the same was to devolve back to her husband upon demise of the matriarch while L.R NO KJD/OLCHORO- ONYORE/9904 was to devolve to her husband in accordance with Maasai culture where the last-born son inherits his mothers share of the property.
The applicants allude to meetings severally held with the elders where decision was taken that as the widow of the last-born son she was entitles to the share of the property.
The applicant avers that she filed succession cause No E021 of 2023 in respect to the estate of her late husband in which the petitioner in the present cause file an application for revocation of grant issued in her favour and lay claim to 17.5 acres from the estate on account of sale allegedly entered with her deceased husband and the matriarch. The applicant also contends that there exist another suit ELC E025 of 2024 between the petitioner on one hand and the estate of Peter Parsere Toyianga and Kipinet Ene Toyanga on the other. The applicant contention is that as a spouse of the deceased husband, there is no proof that the petitioner had entered into any sale of land agreement with Peter Parsere.
The applicant contends that there are serious issues that need to be sorted out first before the present cause could be confirmed and the estate distributed. That if the summons for confirmation is allowed to proceed without resolution of the outstanding issues, the applicant and his children would be prejudice greatly ultimately occasioning grave injustice. She contends that her family deserve 13 acres from the estate of Kipinet Ene Toyanga Saire and not the 6 acres proposed by the petitioner in the present cause. The petitioner is also accused of taking 4.5 acres from the applicants deceased husband several parcel of land such as KAJIADO/OLCHORO ONYORE/37388, 37389, 37390, 37391 and 37392 all excised from L.R NO KJD/OLCHORO- ONYORE/3065.
It is the applicant prayer that there is urgent need to stay proceedings in this matter and allow the other related matter run its cause.
The respondent filed a replying affidavit dated 1st April 2025 in opposition to the application contending that the application is frivolous, vexatious and an abuse of the court process and that the present cause was filed first as opposed to the two other matters that were filed later. Therefore, the present cause should be determined in priority. The Respondent further aver that there is no evidence of the matters alluded to by the applicant as no proceedings or pleadings have been attached as evidence of the fact asserted by the applicant. Thirdly, the respondent argues that the issues raised by the applicant could be handled in the present cause where they are party to it and that in any case the outcome of the matters pending have little or no bearing to the present cause.
The court is therefore urged to dismiss the applicant’s application as to grant the order of stay is highly prejudicial to the respondent.
I have considered the parties pleadings, submissions and the authorities supplied which I have found useful. Based on the above, the issue for determination is whether this court should grant a stay of the proceedings in this matter pending the hearing and determination ELC case No E025 of 2024 and Succession cause E021 of 2023.
As stated earlier in this ruling, the trigger to the present application is the filing of the petition for letters of administration and subsequent summons for confirmation of grant by the petitioner in this cause in which the shares and distribution of the properties in respect to the estate Kipinet Ene Toyanga Saire, the petitioner’s mother was objected to by the applicant. In the proposed distribution, the applicant shares representing her deceased husband was ascertained and determined by the petitioner who proposed that applicant get 2 acres in respect to KJD/OLCHORO ONYORE/29670 and 6 acres in KJD/OLCHORO ONYORE/9904. These proposal by the petitioner is not acceptable to the applicant who argues that the estate of her deceased husband is entitled to more. That the deceased Peter Parsere Toyianga is entitled to 12.5 or 13 acres in respect of KJD/OLCHORO ONYORE/9904 and KJD/OLCHORO ONYORE/29670.
Section 47 of the Law of succession grants the probate court jurisdiction to entertain any application and determine any dispute under the Act and to pronounce such decrees and make such orders as may be expedient.
Although the respondent contend that the applicant failed to supply the pleadings in respect to ELC NO E025 of 2024 and E021 of 2023, there is a Replying affidavit filed in this matter relating to the pending ELC case, dated 9th July 2024 and sworn by the petitioner herein. In it the petitioner aver that he bought 12.5 acres of land from his late mother which was adjacent to his deceased brother Peter Parsere home. The affidavit speaks to an agreement between the petitioner and the deceased person in great details.
The court was also able to access the Case Tracking System in respect to E021 of 2023 In the matter of the estate of Peter Toyianka Saire and read a replying affidavit dated 1st October 2024 sworn Yiangaso Ole Toyonga the petitioner herein in which he filed an application for revocation of grant issued to the applicant on the basis that he is a creditor of his brothers’ estate.
It is therefore clear to this court that there are outstanding issues between the petitioner and the applicant in this cause touching on the assets of two estates in which both parties are beneficiaries and or survivors. That is the estate of Kipinet Ene Toyanga Saire and Peter Parsere Toyanga.
In the Re Estate of Francis Peter Njuguna Rurigi (2016) eklr the court observed that;
“when a claim is brought by anyone, whether a beneficiary or survivor of the deceased or even a third party, that he has an interest of one sort or other in estate property, such property shall be set aside or be removed from the schedule of assets to await determination of the question as to the interest of the claimant”
In Re estate of Julius Ndubi Javan (2018) eklt Gikonyo J observed that where an asset is contested, then such asset should be set aside to allow the claimants or even the administrator, to initiate separate proceedings, to have the issue of ownership or other, resolved in those separate proceedings. The court further observed citing the case of Everline Atiang Wanyama vs William Osayo Siroko & another [2014] eklr and re Estate of Kimani Kinuthia [2008] eklr as per Tuiyot J and Ibrahim J respectively as he then was that probate and administration process is not designed for handling of highly contested matters, and the resolution of such lies outside the probate process… proceedings for confirmation or revocation of grant have been declared unsuitable for determination on such contests as to ownership of property.
Transaction relating to land are governed by Land Registration Act 2012 and agreement for sale of land or any disposition thereof fall under and shall be dealt with by the court established for that purpose. In Re Estate of Mathew Liluma Shinjili[2022] KEHC Musyoka J observed that Rule 41(3) of the probate and Administration Rules enable the probate court to remove a contested asset from the schedule of distribution to enable the parties initiate separate proceedings to determine the status of the ownership of the said contested asset
This court, sitting as a probate court cannot determine the question on whether or not the petitioner herein bought parcel of land from both his mother and brother both deceased.
As there is already filed ELC NOE025 of 2024 involving the petitioner, the applicant and other interested parties it is in the interested of justice that the present cause be stayed pending resolution of the ELC matter as the determination of the ELC matter either way will have significant bearing on the present cause.
Allowing summons for confirmation to procced in this cause is likely to occasion prejudice on the part of the applicant if the ELC court finds in her favour. If, however the court agrees with the petitioner, then confirmation of the grant and distribution of the assets shall proceed to its conclusion.
Consequently,
1 The Notice of Motion dated 15th November 2024 is hereby allowed.
2 There Shall be a stay of proceedings in Succession Cause No E070 of 2023 until the ELC case Number E025 of 2024 is Heard and determined.
3 That there shall be no Order as to costs.