' 1. This decision is in respect to a challenge to a portion of the Rectification of the Grant made herein, which Rectification altered the list of beneficiaries adopted in the distribution of the estate as appeared in initial Confirmed Grant earlier issued herein.
2. The background of the matter is that the deceased, Kipsongok Kili Kikatei, died on 7/10/2007 at the age of 94 years. On 19/07/2012, the Petitioner, applying as his widow, petitioned for Grant of Letters of Administration over his estate. As the sole asset comprising the estate, she listed the parcel of land described as Uasin Gishu/Illula/88 measuring 2.8 Hectares (hereinafter referred to as “the suit land”) to be distributed amongst 5 beneficiaries, who included the Applicant, Laban Eshitera Tsuma. The Petition was then processed and the Grant of Letters of Administration dated 30/07/2013 issued. The Grant was subsequently confirmed on 16/07/2015 as prayed above.
3. However, upon the Petitioner’s subsequent Application, the Confirmed Grant was later rectified on 24/07/2017 to correct the wrong reference number of the parcel of land indicated thereon, and to accommodate an expanded list of beneficiaries which, this time also included the Petitioner. One significant feature of the rectification was that the Protester, Irene Jerotich Gerio, was added as a co-beneficiary of the portion of 0.9 acres initially allocated to the Applicant, as a sole beneficiary.
4. The Rectification swiftly elicited filing of the Notice of Motion the subject hereof, the one dated 4/08/2017 filed by the Applicant through Messrs Gumbo & Associates Advocates, whereof he sought the setting aside and/or review of the portion of the Rectification that allowed inclusion of the Protester as a co-beneficiary of his share. In his Affidavit in support of the Application, he basically urged that the rectification was conducted without his consent and without him being heard, and thus the orders were obtained by fraud.
5. He deponed that he solely purchased the portion from the deceased and termed the Protester as his former wife whom she separated from and who then got married to someone else. He also contended that in any event, even if the Protester had any legitimate claim, then the proper forum to urge her claim is either through a suit filed at the Environment & Land Court (ELC), or in a Matrimonial Property Cause.
6. The Protester then, through Messrs Mukabane & Kagunza & Co. Advocates, filed the Affidavit in Protest which she swore on 16/04/2018 and in which she deponed that she got married to the deceased under customary law sometime in 1994 and were blessed with 3 children. She deponed that during the marriage, they purchased 0.5 acres portion of the suit land from the deceased, to which she made direct contribution and even participated in the execution of the Agreement for Sale, and that a sum of Kshs 60,000/- refunded to her for an aborted purchase of a separate parcel of land was handed over to the Applicant, as her husband, and which was then added for purchase of the 0.5 acres portion. She deponed further that she also took a loan from a bank and also from her mother at an aggregate sum of Kshs 200,000/- which she also gave to the deceased as further part-payment of the purchase price of the 0.5 acres portion. She also deponed that upon execution of the Sale Agreement, she took possession of the portion and started cultivating and later constructed her matrimonial home therein where she stayed with the Applicant and their children until they got estranged but she is still in possession of the portion to date. She deponed that between 2006-2007, the Applicant purchased a further 0.4 acres of the suit land bringing the total to 0.9 acres and that the Applicant is therefore only entitled to such 0.4 acres. She urged that upon the death of the deceased, this Succession Cause was commenced without her knowledge and the Applicant named as the sole beneficiary of the entire 0.9 acres portion contrary to the agreement, that upon learning of this development, she protested in open Court to the Administrator/Petitioner and also to the Applicant and it was then agreed that she, as well as other separate purchasers who had also been omitted, be included. She deponed that it is pursuant thereto, upon the Petitioner’s application, the Grant was rectified as aforesaid, and that setting aside of the same will therefore also affect the other purchasers. She referred to the letter from the Chief vindicating her position.
7. The Applicant then filed the Further Affidavit he swore on 5/07/2018, together with 3 other Affidavits sworn on 5/07/2018 and 20/12/2017, respectively, by John Kiprotich Songok, Joel Kiprono Kili and Wifred Kitur, said to be sons of the deceased. The Applicant, in his said Further Affidavit, basically denied the allegations made by the Protester and, instead, reiterated his own allegations made in his Affidavit earlier referred to.
8. The Affidavits sworn by John Kiprotich Songok, Joel Kiprono Kili and Wifred Kitur are identical to each other in content. They all deponed that they are sons of the deceased herein, and the Petitioner/Administrator is their step-mother. They then stated that they witnessed the Sale Agreement for purchase of the said 0.9 acres portion in issue herein between the deceased and the Applicant. According to them, the Protester was only endorsed therein as the Applicant’s witness, and that there was no indication that the Protester purchased the land jointly with the Applicant. They further deponed that upon learning of the rectification of the Grant, they approached the Petitioner seeking an explanation thereof and the Petitioner denied any knowledge of the same. According to them, somebody may have taken advantage of the Petitioner’s advanced age and illiteracy to interfere with the already concluded distribution.
9. The matter was then directed to be canvassed by way of viva voce trial upon which the Protester filed Witness Statements.
10. The Petitioner’s first Witness Statement was the one by Magdalene Gerio dated 12/07/2018 who stated that she is the Protester’s mother, and that the Protester got married to the Applicant in March 1994 and were blessed with 3 children. She added that sometime in December 2005, the Protester informed her that she intended to jointly purchase a portion of land the suit land with her husband (the Applicant) from the deceased but they did not have sufficient money to meet the purchase price. She stated further that she advanced the Protester a sum of Kshs 100,000/- and since the Protester was married, customarily, the husband (the Applicant) was in the forefront in the transaction which was concluded and the Protester and the Applicant therefore became co-owners of the portion. She stated that she personally handed over the Kshs 100,000/- to the deceased. She added that the Protester subsequently divorced the Applicant who then tried to disinherit the Protester during confirmation of the Grant.
11. The Petitioner’s 2nd Witness Statement was by Emmy Koech, also dated 12/07/2018. She stated she witnessed the signing of the Agreement of Sale relating to the portion of land in issue herein on 28/12/2005, between the deceased on one part, and the Protester and the Applicant on the other. She stated that the Protester contributed the entire purchase price of 0.5 acres through a loan advanced to her by her mother and also by a bank and she, too, contended that since the Protester and the Applicant were husband and wife, customarily the husband (Applicant) was in the forefront during the transaction on behalf of his family. She stated further that upon the purchase, the Protester took possession and she has been cultivating the same to date. According to her, the Protester contributed the entire purchase price on 28/12/2005 while the Applicant contributed the entire purchase of the later purchase portion of 0.4 acres, making the total to 0.9 acres.
12. The matter then proceeded to viva voce trial in which 7 witnesses testified. The Protester and her witnesses testified as PW1, PW2, and PW3, the Petitioner testified as DW1, and the Applicant and his witnesses testified as DW2, DW3 and DW4.
Protester’s testimony
13. The Protester, Irene Jerotich Gerio, led by her Counsel, Mr. Kagunza, testified as PW1 before Hon. Lady Justice O. Sewe on 19/07/2021. She adopted her Affidavit of Protest earlier referred to and reiterated the matters deponed therein, including that she was married to the Applicant in 1994 and were blessed with 4 children but they separated in 2008, that she contributed in raising the purchase price for the portion in issue and that she is only pursuing the matter for the interests of her children. Under cross-examination by Mr. Kenei, Counsel for the Applicant, she reiterated the matters stated in her Affidavit but conceded that in the Agreement for Sale dated 28/12/2005, her name is only indicated as a witness, not as a purchaser, although it is her who drafted the Agreement. She also conceded that the Agreement was for purchase of ½ acre, and that only a sum of Kshs 50,000/- is indicated as having been paid to the deceased on that day. She however insisted that she paid Kshs 150,000/- in total (which included Kshs 100,000/- from her mother) on that day, and that it is her who eventually paid the entire Kshs 200,000/-. About the alleged Kshs 40,000/- loan that she claimed to have taken from the bank to add to the amount paid, she also conceded that she did not produce any proof thereof. She also conceded that her name was added in the Agreement much later.
14. When the matter came before me on 3/10/2023 for resumption of the Protester’s case, the Protester did not have further witnesses in Court on that day. In the circumstances, to save on further delays, it was agreed that the Petitioner, because of her advanced age, and also because of the age of the case, could commence her case then once her case is closed, and before the Applicant commences his, the Protester would continue with and conclude her case. In the circumstances, the Petitioner took the stand and testified as PW2.
Petitioner’s testimony
15. The Petitioner, Esther Jeptum Kili, led by Ms. Tanui, thus testified before me as DW1 on the said 3/10/2023. She adopted her Affidavits filed herein, and stated that the reason she applied for Rectification of the Grant was because the land was wrongly described. She however also agreed that she also sought the rectification to include other beneficiaries who had been left out. She however denied that she added the Protester in the expanded list of beneficiaries and insisted that she does not know who did so. She then stated that she only knows the Applicant as the beneficiary. Under cross-examination by the Protester, she stated that the 1st portion was sold by her husband (the deceased) and herself jointly, and the 2nd portion she sold alone. She then conceded that she first knew the Protester who later introduced the Applicant after the Protester had already started cultivating the said portion. She stated that she does not know how the Protester and the Applicant raised the purchase price. Under cross-examination by Mr. Kenei, she insisted that the Protester was only a witness to the Agreement for Sale, and not a co-Purchaser. She also pointed out that the Chief’s letter she relied on also only refers to the Applicant, and stated that she never had any intention of adding the Protester neither does she know how the Protester was added. Regarding the portion in issue, she reiterated that it belongs to the Applicant. According to her, the Protester should wait for the Applicant to get her share then the two can go and battle it out.
16. At this point, the Petitioner closed her case and the Applicant commenced his.
Applicant’s witnesses’ testimony
17. The Applicant, Laban Eshitera Tsuma, testified as DW2 on 22/11/2023. Led by his Counsel, Mr. Kenei, he adopted and reiterated the contents of his Supporting Affidavit and Further Affidavit already referred to above. Under cross-examination by Ms. Tanui, now acting for the Petitioner, he reiterated that the Protester was added without his (Applicant’s) consent but agreed that he was still living with the Protester when he purchased the portion. Under cross-examination by the Protester, he agreed that all the Protester’s children are his and stated that he has been separated from the Protester for 18 years now. He however agreed “separated” is different from “divorced”. He insisted that the he has never lived with the Protester in the suit land but agreed that it is the Protester who introduced him to the deceased. He also denied that the portion had already been paid for by the time that he was introduced to the deceased or viewed the same. He denied any knowledge of a part-payment of Kshs 100,000/- made on 28/01/2005 or of any money given by the Protester’s mother. He then stated that since purchasing the portion, he has never cultivated it because the Protester has been threatening him, and that although they separated in 2007, the Protester refused to leave the land. He insisted that he purchased the land single-handedly. In re-examination, he reiterated that the Protester is now married to somebody else and that she forcefully continued to occupy the portion and put up structures, even after they separated.
18. DW3 was Wilfred Kitur who also testified on 22/11/2023. He, too, adopted his Affidavit and reiterated that the Petitioner is his step-mother and the deceased his father. In cross-examination by the Protester, he stated that he was a witness in the Agreement for Sale and that there were 8 people present, including himself, his mother (Petitioner), his father (the deceased), his brother, the Protester, and the Applicant. He denied that the Protester’s mother was among them, and confirmed that a part-payment was made on that day but he could not recall the amount. According to him the total amount eventually received as purchase price was Kshs 500,000/- although he only witnessed some part-payment, and that the Agreement was signed in the Applicant’s home. He stated that his father (the deceased) had 3 wives. In re-examination, he agreed that the Agreement dated 28/12/2005 only shows the purchase price of Kshs 200,000/-. He then stated that the initial purchase price was Kshs 200,000/- but this increased to Kshs 500,000/- when the acreage sold was increased. He insisted that, to his knowledge, all the money was paid by the Applicant and the Protester’s mother played no role in the transaction. He added that the Applicant’s house where they met was a rented house, and was not in the suit land. He insisted that the portion in issue belongs to the Applicant.
19. When the matter came up on 17/01/2024 for resumption of the Applicant’s case, he did not have in Court on that day the further witnesses he intended to call. In the circumstances, again to save on further delays, it was agreed that the Protester’ case, which had also been deferred and her witness (PW1) stood down, could resume as she had her witnesses in Court. In the circumstances, the Protester’s second witness took the stand and testified as PW2.
Protester’s witnesses’ further testimonies (resumed)
20. In resumption of the Protester’s case, her 2nd witness, Magdalene Gero, thus testified on the said 17/01/2024 as PW2. She adopted her Statement earlier referred to and reiterated the contents thereof, including that she is the Protester’s mother and that she advanced the Protester money for purchase of the portion of land in issue herein. She stated that she witnessed the signing of the Agreement for Sale on 28/12/2005, and that they were 7 people in total, including herself, the Protester, the Applicant, and 3 sons of the deceased. According to her, the deceased was not present at the meeting as he was said to have been unwell, and stated that she gave the Kshs 100,000/- to one of the sons of the deceased by the name Kiprotich who, together with his brothers, counted it, and she (PW2) then handed it over to their mother (the Petitioner) in the presence of all the witnesses, and on the next day she went to the home of the deceased who confirmed that he had received the money and even showed her the land. She then stated that since the Protester and the Applicant subsequently separated, it is the Protester who has been living with the children. Under cross-examination by Ms. Tanui, she stated that the Kshs 100,000/- that she paid for the land was not a loan but simply her assistance to the Protester and the Applicant. Under cross-examination by Mr. Kenei, she conceded that her name does not appear in the Agreement as a witness, and also that it only indicates a payment of Kshs 50,000/- as having been made on 28/12/2005, and that it describes the Protester as a witness, not a co-Purchaser.
21. The Protester’s 3rd witness was Emmy Koech, who testified on the same 17/01/2024 as PW3. She, too, adopted her Statement to and stated that she was a neighbour of the Protester and the Applicant, and reiterated that on 28/12/2005 she, too, witnessed the signing of the Agreement for Sale at the Applicant’s home. She added that the Protester gave a sum of Kshs 50,000/- and the Protester’s mother came later and gave Kshs 100,000/- to the Petitioner but no separate or further Agreement was made for this additional Kshs 100,000/-. She, too, stated that after the Protester and the Applicant subsequently separated, it is the Protester who remained with the children and still does to date. Under cross-examination by Ms. Tanui, she stated that she did not know on whose behalf the Protester’s mother made the payment of Kshs 100,000/- and neither does she know the purchase price for the portion save that the portion was 0.5 acres. Under cross-examination by Mr. Kenei, she reiterated most of the already stated matters but also stated that the deceased, who was the seller, was not present at the meeting as he was said to have been unwell. She also stated that she had no knowledge whether the names of the Protester and the Applicant were added into the Agreement subsequently, or whether such addition, if any, was fraudulent. In response to a question from the Court, she stated that at the time of signing the Agreement, the portion had not been developed.
22. At this point, the Protester closed her case. The Applicant’s case then resumed on 25/11/2024.
Applicant’s Further witnesses’ testimony (Resumed)
23. The Applicant’s 2nd witness was John Kiprotich Songok who testified on 25/11/2024 as DW4. He adopted his Affidavit, and reiterated that the Petitioner is his step-mother and the deceased his father, and that it is the Applicant who purchased the 0.9 portion of land in issue herein out of the suit land measuring approximately 7.9 acres. According to him, there were about 4-5 witnesses to the Agreement for Sale. For his father, he stated that the witnesses present were himself (DW4), his mother (Petitioner), his brother (Wilfred Kitur-DW3) and another brother by the name Joel Kiprono, and for the Applicant, the witnesses were the Protester and one other woman whose name he could not recall. He insisted that the Protester was only a witness to the Agreement, not a co-purchaser. Under cross-examination by Ms. Tanui, he insisted that he did not agree with the changes made in the Grant by rectification and their mother (Petitioner) also told them that she did not give any instructions for the changes to be made. About the other beneficiaries added through the Rectification, he also stated that he never knew about them as no one told him about them. He however agreed that he was aware of the correction of the land reference number. He then stated that he did not know where the purchase price paid by the Protester and the Applicant came from. Under cross-examination by the Protester, he agreed that it is the Protester who was on the ground and who thus negotiated the transaction. When asked why his other brother, Joel Kiprono, was not called as a witness despite swearing an Affidavit, he stated that it was because he is a drunkard and lacks courage, and denied that it is because he would have given a different account had he been called as a witness. He also denied that the Protester’s mother (PW2) was present on the date when the Agreement was signed. According to him, the amount received on that date was Kshs 250,000/-, and which was all given by the Applicant, and not Kshs 50,000/-. He then stated that the Applicant first bought 0.5 acres, and later a further 0.4 acres, and that he (DW4) thus signed 2 different Agreements on different dates. When however shown the Agreement, he conceded that it shows that what was paid on 28/12/2005 was Kshs 100,000/-, and not Kshs 250,000/-. According to him, the conflicting figures is because the payments were made in instalments. He insisted that the Protester misled his mother (Petitioner) to add the Protester’s name in the Grant. He however conceded that it is his mother who used to pay the Lawyer who drafted the Application for Rectification but stated that the Lawyer may have not known the truth. In re-examination, he stated that the Petitioner told him that she was misled into agreeing to the addition of the Protester’s name in the Grant.
24. At this point, the Applicant also closed his case. The entire trial therefore also closed on that 25/11/2024.
25. I then gave the parties leave to file written Submissions within specified timelines, and the Applicant’s Advocates were to begin by filing and serving within 14 days. However, when the matter came up on 5/02/2025, more than 1 month later, the Applicant’s Advocates did not attend Court and had also not filed Submissions. In view thereof, upon Application by Ms. Tanui for the Petitioner, I locked out the Applicant’s Advocates from filing any Submissions as the time granted to them had expired and no explanation had been offered for the failure to file their Submissions within the time specified. I thus gave the Protester and the Petitioner the liberty to file their Submissions. Pursuant thereto, the Protester filed the Submissions dated 4/03/2025, while the Petitioner’s Advocates filed the Submissions dated 9/03/2025.
26. I may also state that although the Petitioner’s Submissions is filed through Messrs Koech Lelei & Co., and although Ms. Tanui Advocate has been appearing for the Petitioner, I have not come across any Notice of Change of Advocates considering that Messrs Mukabane & Kagunza & Co. was the firm that had been on record for the Petitioner. Similarly, although there are pleadings and correspondence in the Court file from Messrs Kenei & Co. and although Mr. Kenei has been appearing for the Applicant, I have also not come across any Notice of Change of Advocates considering that it is Messrs Gumbo & Co., through Mr. Kenei, that had initially been on record for the Applicant.
27. Further, although I was handed over in Court copies of the said two respective sets of Submissions from the Protester and from the Petitioner, neither appears in the Judiciary Case Tracking System (CTS) online portal.
28. The parties are therefore advised to ensure that their respective Notices of Change or Appointment of Advocates and Submissions, if formally filed, are formally placed on record.
Protester’s Submissions
29. The Protester, acting in person as aforesaid, after recounting the witnesses’ testimonies and evidence on record, cited Section 74 of the Law of Succession Act, as read with Rules 14(1) and 43 of the Probate and Administration Rules, which govern the issue of Rectification of Grants. She also cited Rule 63 which lists Order 44 of the Civil Procedure Rules as one of the provisions of that Act that may be applied in proceedings under the Law of Succession Act. She then cited the case of Re The Estate of Mokosio [2000] eKLR. According to her therefore, the Rectification of the Grant was conducted procedurally and should be upheld.
Petitioner’s Submissions
30. I will not recount the Petitioner’s Submissions filed as aforesaid through Messrs Koech-Lelei & Co, as it is strikingly similar and identical, both in print and in content, to the Submissions filed by the Protester. This is intriguing since the Petitioner’s Submissions seem to now appear to be supporting the Protester’s Submissions yet at the trial, the Petitioner and her Counsel, Ms. Tanui, both took a position totally contradictory to the Protester’s, and in fact supported the Applicant. I find this really strange. I will however say no more about this loud intuition ringing in my mind regarding the Submissions said to be the Petitioner’s.
Determination
31. The issue for determination in this matter is evidently “whether this Court should set aside the orders made herein on 24/07/2017, whereof the Confirmed Grant issued herein was rectified to include the Protester as a co-beneficiary of the Applicant’s 0.9 acres share”.
32. It is clear that the Protester’s basis for “prompting” or “causing” the Rectification of the Grant was based on the allegation that the Petitioner allocated the 0.9 acres portion of the suit land in issue herein entirely to the Applicant as a sole beneficiary thereof, yet the Protester being his ex-wife, contributed to acquisition of the said portion. According to her therefore, her inclusion or addition as such co-beneficiary was proper and justified. The current fight is therefore not within the family of the deceased, but between third parties outside the family.
33. Before I delve into determining the substantive matters before the Court therefore, it is relevant to recall that one of the issues raised by the Applicant was that even if the Protester had any legitimate claim, then the proper forum to urge her claim would be either through a suit filed at the Environment & Land Court (ELC) or in a Matrimonial Property Cause. This is evidently an issue of jurisdiction. Since determination of this issue has the potential of determining this entire matter at a Preliminary stage, I will analyse it as the first matter.
34. Indeed, in the celebrated case of The Owners of the Motor Vessel “Lillian’s” -V- Caltex Oil Kenya Ltd [1989] KLR 1, Nyarangi J.A. held as follows:
“I think that it is reasonably plain that a question of jurisdiction ought to be raised at the earliest opportunity and the court seized of the matter is then obliged to decide the issue right away on the material before it. Jurisdiction is everything, without it, a court has no power to make one more step. Where a court has no jurisdiction, there would be no basis for continuation of proceedings pending other evidence. A court of law downs tools in respect of the matter before it the moment it holds that it is without jurisdiction.”
35. Similarly, in the case of Samuel Kamau Macharia and Another v. Kenya Commercial Bank Limited & 2 others [2012] eKLR, Application No. 2 of 2011, the Supreme Court held that:
“[68]. A Court’s jurisdiction flows from either the Constitution or legislation or both. Thus, a Court of law can only exercise jurisdiction as conferred by the Constitution or other written law. It cannot arrogate itself jurisdiction exceeding that which is conferred upon it by law.”
36. It is true that the mandate of a Probate and Administration Court is to determine the assets of the deceased, identify the rightful beneficiaries of the estate, ascertain their respective shares and finally, distribute the estate accordingly. This has been restated in a plethora of decisions including for instance, the case of re Estate of Alice Mumbua Mutua (Deceased) [2017] eKLR, in which W. Musyoka J held that:
“The Law of Succession Act, and the Rules made thereunder, are designed in such a way that they confer jurisdiction to the probate court with respect to determining the assets of the deceased, the survivors of the deceased and the persons with beneficial interest, and finally distribution of the assets amongst the survivors and the persons beneficially interested. The function of the probate court in the circumstances would be to facilitate collection and preservation of the estate, identification of survivors and beneficiaries, and distribution of the assets.”
37. In respect to the issue of separation of jurisdiction, the Constitution of Kenya establishes the Environment and Land Court, and clothes it with jurisdiction in Articles 162(2)(b) as follows:
162. (2) Parliament shall establish courts with the status of the High Court to hear and determine disputes relating to—
(a) ………………………………………………………; and
(b) the environment and the use and occupation of, and title to, land.
38. In regard to the High Court, the Constitution under Article 165(3)(a) provides as follows:
(3) Subject to clause (5), the High Court shall have—
(a) Unlimited original jurisdiction in criminal and civil matters;
39. On the other hand, Article 165(5) provides the following limitation:
“The High Court shall not have jurisdiction in respect of matters falling within the jurisdiction of the courts contemplated in Article 162(2).”
40. In the discharge of the obligation placed on it by the Constitution, Parliament then enacted the Environment and Land Court Act, which sets out in detail, the jurisdiction of that Court. Section 13(2) thereof then outlines the jurisdiction of that Court as follows:
“(1) ………………………………………………………………………………....
“(2) In exercise of its jurisdiction under Article 162(2) (b) of the Constitution, the Court [the ELC] shall have power to hear and determine disputes—
(a) relating to environmental planning and protection, climate issues, land use, planning, title, tenure, boundaries, rates, rents, valuations, mining, minerals and other natural resources;
(b) relating to compulsory acquisition of land;
(c) relating to land administrati
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2. The background of the matter is that the deceased, Kipsongok Kili Kikatei, died on 7/10/2007 at the age of 94 years. On 19/07/2012, the Petitioner, applying as his widow, petitioned for Grant of Letters of Administration over his estate. As the sole asset comprising the estate, she listed the parcel of land described as Uasin Gishu/Illula/88 measuring 2.8 Hectares (hereinafter referred to as “the suit land”) to be distributed amongst 5 beneficiaries, who included the Applicant, Laban Eshitera Tsuma. The Petition was then processed and the Grant of Letters of Administration dated 30/07/2013 issued. The Grant was subsequently confirmed on 16/07/2015 as prayed above.
3. However, upon the Petitioner’s subsequent Application, the Confirmed Grant was later rectified on 24/07/2017 to correct the wrong reference number of the parcel of land indicated thereon, and to accommodate an expanded list of beneficiaries which, this time also included the Petitioner. One significant feature of the rectification was that the Protester, Irene Jerotich Gerio, was added as a co-beneficiary of the portion of 0.9 acres initially allocated to the Applicant, as a sole beneficiary.
4. The Rectification swiftly elicited filing of the Notice of Motion the subject hereof, the one dated 4/08/2017 filed by the Applicant through Messrs Gumbo & Associates Advocates, whereof he sought the setting aside and/or review of the portion of the Rectification that allowed inclusion of the Protester as a co-beneficiary of his share. In his Affidavit in support of the Application, he basically urged that the rectification was conducted without his consent and without him being heard, and thus the orders were obtained by fraud.
5. He deponed that he solely purchased the portion from the deceased and termed the Protester as his former wife whom she separated from and who then got married to someone else. He also contended that in any event, even if the Protester had any legitimate claim, then the proper forum to urge her claim is either through a suit filed at the Environment & Land Court (ELC), or in a Matrimonial Property Cause.
6. The Protester then, through Messrs Mukabane & Kagunza & Co. Advocates, filed the Affidavit in Protest which she swore on 16/04/2018 and in which she deponed that she got married to the deceased under customary law sometime in 1994 and were blessed with 3 children. She deponed that during the marriage, they purchased 0.5 acres portion of the suit land from the deceased, to which she made direct contribution and even participated in the execution of the Agreement for Sale, and that a sum of Kshs 60,000/- refunded to her for an aborted purchase of a separate parcel of land was handed over to the Applicant, as her husband, and which was then added for purchase of the 0.5 acres portion. She deponed further that she also took a loan from a bank and also from her mother at an aggregate sum of Kshs 200,000/- which she also gave to the deceased as further part-payment of the purchase price of the 0.5 acres portion. She also deponed that upon execution of the Sale Agreement, she took possession of the portion and started cultivating and later constructed her matrimonial home therein where she stayed with the Applicant and their children until they got estranged but she is still in possession of the portion to date. She deponed that between 2006-2007, the Applicant purchased a further 0.4 acres of the suit land bringing the total to 0.9 acres and that the Applicant is therefore only entitled to such 0.4 acres. She urged that upon the death of the deceased, this Succession Cause was commenced without her knowledge and the Applicant named as the sole beneficiary of the entire 0.9 acres portion contrary to the agreement, that upon learning of this development, she protested in open Court to the Administrator/Petitioner and also to the Applicant and it was then agreed that she, as well as other separate purchasers who had also been omitted, be included. She deponed that it is pursuant thereto, upon the Petitioner’s application, the Grant was rectified as aforesaid, and that setting aside of the same will therefore also affect the other purchasers. She referred to the letter from the Chief vindicating her position.
7. The Applicant then filed the Further Affidavit he swore on 5/07/2018, together with 3 other Affidavits sworn on 5/07/2018 and 20/12/2017, respectively, by John Kiprotich Songok, Joel Kiprono Kili and Wifred Kitur, said to be sons of the deceased. The Applicant, in his said Further Affidavit, basically denied the allegations made by the Protester and, instead, reiterated his own allegations made in his Affidavit earlier referred to.
8. The Affidavits sworn by John Kiprotich Songok, Joel Kiprono Kili and Wifred Kitur are identical to each other in content. They all deponed that they are sons of the deceased herein, and the Petitioner/Administrator is their step-mother. They then stated that they witnessed the Sale Agreement for purchase of the said 0.9 acres portion in issue herein between the deceased and the Applicant. According to them, the Protester was only endorsed therein as the Applicant’s witness, and that there was no indication that the Protester purchased the land jointly with the Applicant. They further deponed that upon learning of the rectification of the Grant, they approached the Petitioner seeking an explanation thereof and the Petitioner denied any knowledge of the same. According to them, somebody may have taken advantage of the Petitioner’s advanced age and illiteracy to interfere with the already concluded distribution.
9. The matter was then directed to be canvassed by way of viva voce trial upon which the Protester filed Witness Statements.
10. The Petitioner’s first Witness Statement was the one by Magdalene Gerio dated 12/07/2018 who stated that she is the Protester’s mother, and that the Protester got married to the Applicant in March 1994 and were blessed with 3 children. She added that sometime in December 2005, the Protester informed her that she intended to jointly purchase a portion of land the suit land with her husband (the Applicant) from the deceased but they did not have sufficient money to meet the purchase price. She stated further that she advanced the Protester a sum of Kshs 100,000/- and since the Protester was married, customarily, the husband (the Applicant) was in the forefront in the transaction which was concluded and the Protester and the Applicant therefore became co-owners of the portion. She stated that she personally handed over the Kshs 100,000/- to the deceased. She added that the Protester subsequently divorced the Applicant who then tried to disinherit the Protester during confirmation of the Grant.
11. The Petitioner’s 2nd Witness Statement was by Emmy Koech, also dated 12/07/2018. She stated she witnessed the signing of the Agreement of Sale relating to the portion of land in issue herein on 28/12/2005, between the deceased on one part, and the Protester and the Applicant on the other. She stated that the Protester contributed the entire purchase price of 0.5 acres through a loan advanced to her by her mother and also by a bank and she, too, contended that since the Protester and the Applicant were husband and wife, customarily the husband (Applicant) was in the forefront during the transaction on behalf of his family. She stated further that upon the purchase, the Protester took possession and she has been cultivating the same to date. According to her, the Protester contributed the entire purchase price on 28/12/2005 while the Applicant contributed the entire purchase of the later purchase portion of 0.4 acres, making the total to 0.9 acres.
12. The matter then proceeded to viva voce trial in which 7 witnesses testified. The Protester and her witnesses testified as PW1, PW2, and PW3, the Petitioner testified as DW1, and the Applicant and his witnesses testified as DW2, DW3 and DW4.
Protester’s testimony
13. The Protester, Irene Jerotich Gerio, led by her Counsel, Mr. Kagunza, testified as PW1 before Hon. Lady Justice O. Sewe on 19/07/2021. She adopted her Affidavit of Protest earlier referred to and reiterated the matters deponed therein, including that she was married to the Applicant in 1994 and were blessed with 4 children but they separated in 2008, that she contributed in raising the purchase price for the portion in issue and that she is only pursuing the matter for the interests of her children. Under cross-examination by Mr. Kenei, Counsel for the Applicant, she reiterated the matters stated in her Affidavit but conceded that in the Agreement for Sale dated 28/12/2005, her name is only indicated as a witness, not as a purchaser, although it is her who drafted the Agreement. She also conceded that the Agreement was for purchase of ½ acre, and that only a sum of Kshs 50,000/- is indicated as having been paid to the deceased on that day. She however insisted that she paid Kshs 150,000/- in total (which included Kshs 100,000/- from her mother) on that day, and that it is her who eventually paid the entire Kshs 200,000/-. About the alleged Kshs 40,000/- loan that she claimed to have taken from the bank to add to the amount paid, she also conceded that she did not produce any proof thereof. She also conceded that her name was added in the Agreement much later.
14. When the matter came before me on 3/10/2023 for resumption of the Protester’s case, the Protester did not have further witnesses in Court on that day. In the circumstances, to save on further delays, it was agreed that the Petitioner, because of her advanced age, and also because of the age of the case, could commence her case then once her case is closed, and before the Applicant commences his, the Protester would continue with and conclude her case. In the circumstances, the Petitioner took the stand and testified as PW2.
Petitioner’s testimony
15. The Petitioner, Esther Jeptum Kili, led by Ms. Tanui, thus testified before me as DW1 on the said 3/10/2023. She adopted her Affidavits filed herein, and stated that the reason she applied for Rectification of the Grant was because the land was wrongly described. She however also agreed that she also sought the rectification to include other beneficiaries who had been left out. She however denied that she added the Protester in the expanded list of beneficiaries and insisted that she does not know who did so. She then stated that she only knows the Applicant as the beneficiary. Under cross-examination by the Protester, she stated that the 1st portion was sold by her husband (the deceased) and herself jointly, and the 2nd portion she sold alone. She then conceded that she first knew the Protester who later introduced the Applicant after the Protester had already started cultivating the said portion. She stated that she does not know how the Protester and the Applicant raised the purchase price. Under cross-examination by Mr. Kenei, she insisted that the Protester was only a witness to the Agreement for Sale, and not a co-Purchaser. She also pointed out that the Chief’s letter she relied on also only refers to the Applicant, and stated that she never had any intention of adding the Protester neither does she know how the Protester was added. Regarding the portion in issue, she reiterated that it belongs to the Applicant. According to her, the Protester should wait for the Applicant to get her share then the two can go and battle it out.
16. At this point, the Petitioner closed her case and the Applicant commenced his.
Applicant’s witnesses’ testimony
17. The Applicant, Laban Eshitera Tsuma, testified as DW2 on 22/11/2023. Led by his Counsel, Mr. Kenei, he adopted and reiterated the contents of his Supporting Affidavit and Further Affidavit already referred to above. Under cross-examination by Ms. Tanui, now acting for the Petitioner, he reiterated that the Protester was added without his (Applicant’s) consent but agreed that he was still living with the Protester when he purchased the portion. Under cross-examination by the Protester, he agreed that all the Protester’s children are his and stated that he has been separated from the Protester for 18 years now. He however agreed “separated” is different from “divorced”. He insisted that the he has never lived with the Protester in the suit land but agreed that it is the Protester who introduced him to the deceased. He also denied that the portion had already been paid for by the time that he was introduced to the deceased or viewed the same. He denied any knowledge of a part-payment of Kshs 100,000/- made on 28/01/2005 or of any money given by the Protester’s mother. He then stated that since purchasing the portion, he has never cultivated it because the Protester has been threatening him, and that although they separated in 2007, the Protester refused to leave the land. He insisted that he purchased the land single-handedly. In re-examination, he reiterated that the Protester is now married to somebody else and that she forcefully continued to occupy the portion and put up structures, even after they separated.
18. DW3 was Wilfred Kitur who also testified on 22/11/2023. He, too, adopted his Affidavit and reiterated that the Petitioner is his step-mother and the deceased his father. In cross-examination by the Protester, he stated that he was a witness in the Agreement for Sale and that there were 8 people present, including himself, his mother (Petitioner), his father (the deceased), his brother, the Protester, and the Applicant. He denied that the Protester’s mother was among them, and confirmed that a part-payment was made on that day but he could not recall the amount. According to him the total amount eventually received as purchase price was Kshs 500,000/- although he only witnessed some part-payment, and that the Agreement was signed in the Applicant’s home. He stated that his father (the deceased) had 3 wives. In re-examination, he agreed that the Agreement dated 28/12/2005 only shows the purchase price of Kshs 200,000/-. He then stated that the initial purchase price was Kshs 200,000/- but this increased to Kshs 500,000/- when the acreage sold was increased. He insisted that, to his knowledge, all the money was paid by the Applicant and the Protester’s mother played no role in the transaction. He added that the Applicant’s house where they met was a rented house, and was not in the suit land. He insisted that the portion in issue belongs to the Applicant.
19. When the matter came up on 17/01/2024 for resumption of the Applicant’s case, he did not have in Court on that day the further witnesses he intended to call. In the circumstances, again to save on further delays, it was agreed that the Protester’ case, which had also been deferred and her witness (PW1) stood down, could resume as she had her witnesses in Court. In the circumstances, the Protester’s second witness took the stand and testified as PW2.
Protester’s witnesses’ further testimonies (resumed)
20. In resumption of the Protester’s case, her 2nd witness, Magdalene Gero, thus testified on the said 17/01/2024 as PW2. She adopted her Statement earlier referred to and reiterated the contents thereof, including that she is the Protester’s mother and that she advanced the Protester money for purchase of the portion of land in issue herein. She stated that she witnessed the signing of the Agreement for Sale on 28/12/2005, and that they were 7 people in total, including herself, the Protester, the Applicant, and 3 sons of the deceased. According to her, the deceased was not present at the meeting as he was said to have been unwell, and stated that she gave the Kshs 100,000/- to one of the sons of the deceased by the name Kiprotich who, together with his brothers, counted it, and she (PW2) then handed it over to their mother (the Petitioner) in the presence of all the witnesses, and on the next day she went to the home of the deceased who confirmed that he had received the money and even showed her the land. She then stated that since the Protester and the Applicant subsequently separated, it is the Protester who has been living with the children. Under cross-examination by Ms. Tanui, she stated that the Kshs 100,000/- that she paid for the land was not a loan but simply her assistance to the Protester and the Applicant. Under cross-examination by Mr. Kenei, she conceded that her name does not appear in the Agreement as a witness, and also that it only indicates a payment of Kshs 50,000/- as having been made on 28/12/2005, and that it describes the Protester as a witness, not a co-Purchaser.
21. The Protester’s 3rd witness was Emmy Koech, who testified on the same 17/01/2024 as PW3. She, too, adopted her Statement to and stated that she was a neighbour of the Protester and the Applicant, and reiterated that on 28/12/2005 she, too, witnessed the signing of the Agreement for Sale at the Applicant’s home. She added that the Protester gave a sum of Kshs 50,000/- and the Protester’s mother came later and gave Kshs 100,000/- to the Petitioner but no separate or further Agreement was made for this additional Kshs 100,000/-. She, too, stated that after the Protester and the Applicant subsequently separated, it is the Protester who remained with the children and still does to date. Under cross-examination by Ms. Tanui, she stated that she did not know on whose behalf the Protester’s mother made the payment of Kshs 100,000/- and neither does she know the purchase price for the portion save that the portion was 0.5 acres. Under cross-examination by Mr. Kenei, she reiterated most of the already stated matters but also stated that the deceased, who was the seller, was not present at the meeting as he was said to have been unwell. She also stated that she had no knowledge whether the names of the Protester and the Applicant were added into the Agreement subsequently, or whether such addition, if any, was fraudulent. In response to a question from the Court, she stated that at the time of signing the Agreement, the portion had not been developed.
22. At this point, the Protester closed her case. The Applicant’s case then resumed on 25/11/2024.
Applicant’s Further witnesses’ testimony (Resumed)
23. The Applicant’s 2nd witness was John Kiprotich Songok who testified on 25/11/2024 as DW4. He adopted his Affidavit, and reiterated that the Petitioner is his step-mother and the deceased his father, and that it is the Applicant who purchased the 0.9 portion of land in issue herein out of the suit land measuring approximately 7.9 acres. According to him, there were about 4-5 witnesses to the Agreement for Sale. For his father, he stated that the witnesses present were himself (DW4), his mother (Petitioner), his brother (Wilfred Kitur-DW3) and another brother by the name Joel Kiprono, and for the Applicant, the witnesses were the Protester and one other woman whose name he could not recall. He insisted that the Protester was only a witness to the Agreement, not a co-purchaser. Under cross-examination by Ms. Tanui, he insisted that he did not agree with the changes made in the Grant by rectification and their mother (Petitioner) also told them that she did not give any instructions for the changes to be made. About the other beneficiaries added through the Rectification, he also stated that he never knew about them as no one told him about them. He however agreed that he was aware of the correction of the land reference number. He then stated that he did not know where the purchase price paid by the Protester and the Applicant came from. Under cross-examination by the Protester, he agreed that it is the Protester who was on the ground and who thus negotiated the transaction. When asked why his other brother, Joel Kiprono, was not called as a witness despite swearing an Affidavit, he stated that it was because he is a drunkard and lacks courage, and denied that it is because he would have given a different account had he been called as a witness. He also denied that the Protester’s mother (PW2) was present on the date when the Agreement was signed. According to him, the amount received on that date was Kshs 250,000/-, and which was all given by the Applicant, and not Kshs 50,000/-. He then stated that the Applicant first bought 0.5 acres, and later a further 0.4 acres, and that he (DW4) thus signed 2 different Agreements on different dates. When however shown the Agreement, he conceded that it shows that what was paid on 28/12/2005 was Kshs 100,000/-, and not Kshs 250,000/-. According to him, the conflicting figures is because the payments were made in instalments. He insisted that the Protester misled his mother (Petitioner) to add the Protester’s name in the Grant. He however conceded that it is his mother who used to pay the Lawyer who drafted the Application for Rectification but stated that the Lawyer may have not known the truth. In re-examination, he stated that the Petitioner told him that she was misled into agreeing to the addition of the Protester’s name in the Grant.
24. At this point, the Applicant also closed his case. The entire trial therefore also closed on that 25/11/2024.
25. I then gave the parties leave to file written Submissions within specified timelines, and the Applicant’s Advocates were to begin by filing and serving within 14 days. However, when the matter came up on 5/02/2025, more than 1 month later, the Applicant’s Advocates did not attend Court and had also not filed Submissions. In view thereof, upon Application by Ms. Tanui for the Petitioner, I locked out the Applicant’s Advocates from filing any Submissions as the time granted to them had expired and no explanation had been offered for the failure to file their Submissions within the time specified. I thus gave the Protester and the Petitioner the liberty to file their Submissions. Pursuant thereto, the Protester filed the Submissions dated 4/03/2025, while the Petitioner’s Advocates filed the Submissions dated 9/03/2025.
26. I may also state that although the Petitioner’s Submissions is filed through Messrs Koech Lelei & Co., and although Ms. Tanui Advocate has been appearing for the Petitioner, I have not come across any Notice of Change of Advocates considering that Messrs Mukabane & Kagunza & Co. was the firm that had been on record for the Petitioner. Similarly, although there are pleadings and correspondence in the Court file from Messrs Kenei & Co. and although Mr. Kenei has been appearing for the Applicant, I have also not come across any Notice of Change of Advocates considering that it is Messrs Gumbo & Co., through Mr. Kenei, that had initially been on record for the Applicant.
27. Further, although I was handed over in Court copies of the said two respective sets of Submissions from the Protester and from the Petitioner, neither appears in the Judiciary Case Tracking System (CTS) online portal.
28. The parties are therefore advised to ensure that their respective Notices of Change or Appointment of Advocates and Submissions, if formally filed, are formally placed on record.
Protester’s Submissions
29. The Protester, acting in person as aforesaid, after recounting the witnesses’ testimonies and evidence on record, cited Section 74 of the Law of Succession Act, as read with Rules 14(1) and 43 of the Probate and Administration Rules, which govern the issue of Rectification of Grants. She also cited Rule 63 which lists Order 44 of the Civil Procedure Rules as one of the provisions of that Act that may be applied in proceedings under the Law of Succession Act. She then cited the case of Re The Estate of Mokosio [2000] eKLR. According to her therefore, the Rectification of the Grant was conducted procedurally and should be upheld.
Petitioner’s Submissions
30. I will not recount the Petitioner’s Submissions filed as aforesaid through Messrs Koech-Lelei & Co, as it is strikingly similar and identical, both in print and in content, to the Submissions filed by the Protester. This is intriguing since the Petitioner’s Submissions seem to now appear to be supporting the Protester’s Submissions yet at the trial, the Petitioner and her Counsel, Ms. Tanui, both took a position totally contradictory to the Protester’s, and in fact supported the Applicant. I find this really strange. I will however say no more about this loud intuition ringing in my mind regarding the Submissions said to be the Petitioner’s.
Determination
31. The issue for determination in this matter is evidently “whether this Court should set aside the orders made herein on 24/07/2017, whereof the Confirmed Grant issued herein was rectified to include the Protester as a co-beneficiary of the Applicant’s 0.9 acres share”.
32. It is clear that the Protester’s basis for “prompting” or “causing” the Rectification of the Grant was based on the allegation that the Petitioner allocated the 0.9 acres portion of the suit land in issue herein entirely to the Applicant as a sole beneficiary thereof, yet the Protester being his ex-wife, contributed to acquisition of the said portion. According to her therefore, her inclusion or addition as such co-beneficiary was proper and justified. The current fight is therefore not within the family of the deceased, but between third parties outside the family.
33. Before I delve into determining the substantive matters before the Court therefore, it is relevant to recall that one of the issues raised by the Applicant was that even if the Protester had any legitimate claim, then the proper forum to urge her claim would be either through a suit filed at the Environment & Land Court (ELC) or in a Matrimonial Property Cause. This is evidently an issue of jurisdiction. Since determination of this issue has the potential of determining this entire matter at a Preliminary stage, I will analyse it as the first matter.
34. Indeed, in the celebrated case of The Owners of the Motor Vessel “Lillian’s” -V- Caltex Oil Kenya Ltd [1989] KLR 1, Nyarangi J.A. held as follows:
“I think that it is reasonably plain that a question of jurisdiction ought to be raised at the earliest opportunity and the court seized of the matter is then obliged to decide the issue right away on the material before it. Jurisdiction is everything, without it, a court has no power to make one more step. Where a court has no jurisdiction, there would be no basis for continuation of proceedings pending other evidence. A court of law downs tools in respect of the matter before it the moment it holds that it is without jurisdiction.”
35. Similarly, in the case of Samuel Kamau Macharia and Another v. Kenya Commercial Bank Limited & 2 others [2012] eKLR, Application No. 2 of 2011, the Supreme Court held that:
“[68]. A Court’s jurisdiction flows from either the Constitution or legislation or both. Thus, a Court of law can only exercise jurisdiction as conferred by the Constitution or other written law. It cannot arrogate itself jurisdiction exceeding that which is conferred upon it by law.”
36. It is true that the mandate of a Probate and Administration Court is to determine the assets of the deceased, identify the rightful beneficiaries of the estate, ascertain their respective shares and finally, distribute the estate accordingly. This has been restated in a plethora of decisions including for instance, the case of re Estate of Alice Mumbua Mutua (Deceased) [2017] eKLR, in which W. Musyoka J held that:
“The Law of Succession Act, and the Rules made thereunder, are designed in such a way that they confer jurisdiction to the probate court with respect to determining the assets of the deceased, the survivors of the deceased and the persons with beneficial interest, and finally distribution of the assets amongst the survivors and the persons beneficially interested. The function of the probate court in the circumstances would be to facilitate collection and preservation of the estate, identification of survivors and beneficiaries, and distribution of the assets.”
37. In respect to the issue of separation of jurisdiction, the Constitution of Kenya establishes the Environment and Land Court, and clothes it with jurisdiction in Articles 162(2)(b) as follows:
162. (2) Parliament shall establish courts with the status of the High Court to hear and determine disputes relating to—
(a) ………………………………………………………; and
(b) the environment and the use and occupation of, and title to, land.
38. In regard to the High Court, the Constitution under Article 165(3)(a) provides as follows:
(3) Subject to clause (5), the High Court shall have—
(a) Unlimited original jurisdiction in criminal and civil matters;
39. On the other hand, Article 165(5) provides the following limitation:
“The High Court shall not have jurisdiction in respect of matters falling within the jurisdiction of the courts contemplated in Article 162(2).”
40. In the discharge of the obligation placed on it by the Constitution, Parliament then enacted the Environment and Land Court Act, which sets out in detail, the jurisdiction of that Court. Section 13(2) thereof then outlines the jurisdiction of that Court as follows:
“(1) ………………………………………………………………………………....
“(2) In exercise of its jurisdiction under Article 162(2) (b) of the Constitution, the Court [the ELC] shall have power to hear and determine disputes—
(a) relating to environmental planning and protection, climate issues, land use, planning, title, tenure, boundaries, rates, rents, valuations, mining, minerals and other natural resources;
(b) relating to compulsory acquisition of land;
(c) relating to land administrati
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