IN THE MATTER OF THE ESTATE OF LEPISH OLE LORGILA

THE REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KAJIADO

SUCCESSION CAUSE NO. 95  OF 2015

IN THE MATTER OF THE ESTATE OF LEPISH OLE LORGILA (DECEASED)

JUDGMENT

Background

1. The deceased in this matter died on 26^th February 2001 intestate. He was polygamous with three wives and children. The list of the three households is shown herebelow:

1^st House

1. Esther Nakaringi Lepish………………Widow (deceased)
2. Joshua Seneti Lepish…………………. Son (deceased)
3. Leah Seneti……………………………… Daughter -in- law
4. Joseph Nalutori………………………….Son
5. Christopher Topoika Lepish…………..Son
6. Simon Samberu Lepish…………………Son
7. Eunice Nteti Lepish……………...Daughter
8. Cynthia Silintai Lepish…………Daughter
9. Diana Latino Lepish…………………….Daughter
10. Leonard Letwati Lepish…………………Son

2^nd House

1. Tiges Lepish…………………………….Widow (deceased)
2. Rhoda Rupat Lekitony………………..Daughter
3. Joseph Mosonik Lepish……………………..Son
4. Susan Mateyo Lepish……………………….Daughter (deceased)
5. Jane Nchushua Lepish…………………….Daughter (deceased)
6. Jennifer Kisirian Lepish……………………Daughter
7. Kevin Koitalele Lepish……………… Son
8. Fellicita Kimorgok Lepish……………Daughter (deceased)
9. Hilary Ramato………………………………….Grandson
10. Martin Lenana Lepish…………………………Son
11. Joel Seketo Lepish……………………………..Son

3^rd House

1. Beatrice Sinyok Lepish……………………………Widow
2. Kukayian Lepish…………………………………….Son
3. Natulo Lepish………………………………………….Son
4. The grant of letters of administration was issued on 3^rd April, 2019 to Kevin Kiotalel Lepish (representing the 2^nd House), Joseph Nalutori Lepish (representing the 1^st House) and Beatrice Sinyok Leipish (representing the 3^rd House). Beatrice Sinyok Lepish sought to withdraw from being an administrator stating that she had been given her share of the estate by the deceased during his lifetime. This Court allowed her to withdraw from being a co-administrator and rectified the Grant on 9^th May 2022 to remove her name and retain Kevin Kiotalel Lepish and Joseph Nalutori Lepish as co-administrators.

Summons for Confirmation dated 25^th April 2019  

1. There are two applications for confirmation of the grant in the court file. The first application is dated 25^th April 2019 and was filed by Kandie Mutai & Company Advocates representing Joseph Nalutori Lepish. The Application refers to the Grant issued on 3^rd April 2019. Joseph has proposed sharing of the estate, comprised of Kajiado/Olooloitikoshi/Kitengela/330 measuring 40.5 hectares as shown in the table below:

1. Joseph has attached to the Supporting Affidavit a Consent to confirmation of grant dated 25^th April 2019 listing 15 beneficiaries who have not signed the Consent safe for Christopher Topoika Lepish.

Affidavit of Protest

1. Kevin Koitalel Lepish (the Protestor) filed an Affidavit of Protest to the Summons for Confirmation dated 28^th August, 2019. The Protestor is a co-administrator to the estate representing the 2^nd House. His case is that the deceased was the registered owner of Kajiado/Olooloitikosh/Kitengela/18 measuring 365.0 ha.(901.55acres); that this piece of land was subdivided into 7 portions on 21/1/1985 as shown below:
2. L.R No Kajiado/Kitengela/327 measuring approximately 40.5 Ha.
3. L.R No Kajiado/Kitengela/328 measuring approximately 40.5 Ha
4. L.R No Kajiado/Kitengela/329 measuring approximately 40.5 Ha
5. L.R No Kajiado/Kitengela/330 measuring approximately 40.5 Ha
6. L.R No Kajiado/Kitengela/321 measuring approximately 42.5 Ha
7. L.R No Kajiado/Kitengela/332 measuring approximately 10.1 Ha
8. L.R No Kajiado/Kitengela/333 measuring approximately 121.4 Ha
9. He further stated that the 1^st and 3^rd houses have benefited from the estate of the deceased during the lifetime of the deceased as shown in paragraph 9.1 of the Affidavit of Protest. He has accused his co-administrator and siblings from the 1^st House are trying to disinherit him and his siblings from the 2^nd House.
10. He has claimed that the only free assets of the estate for distribution at the time of the death of the deceased are the following:
11. Kajiado/Kitengela/329 measuring 40.5 hectares
12. Kajiado/Kitengela/330 measuring 40.5 hectares
13. Kajiado/Kitengela/7870 measuring 0.2 hectares
14. Kajiado/Kitengela/7872 measuring 0.2 hectares
15. Kajiado/Kitengela/7873 measuring 0.2 hectares
16. Kshs 141,000,000 proceeds from Government’s
    Compulsory acquisition of some portions of Kajiado/Kitengela/329 and 330
17. He proposed the mode of distribution in the Consent to the Confirmation of the Grant attached to his Affidavit in Support of the Summons for Confirmation sworn on 3^rd September 2019 as follows:

1. In an undated Affidavit sworn by Joseph Narutori Lepish filed in Court on 26^th February 2019, he blames his co-administrator Kevin Koitalel Lepish and Monosik Ole Lepish for fraudulently obtaining a grant of letters of administration on 28^th August 2007 in respect of the estate of the deceased vide Succession Cause No. 14 of 2007 before the Senior Resident Magistrates Court at Kajiado. Joseph claimed that his stepbrothers listed property title Kajiado/Oloololitikosh/Kitengela/329 as forming part of the estate of the deceased which is not true.
2. Joseph stated that their deceased father was the owner of Kajiado/Olooloitikosh/Kitengela/18 which was subdivided into 7 portions (Kajiado/Olooloitikosh/Kitengela/327-333) in January 1985; that in 1998, the deceased gifted Joseph’s mother Makaringi Lepish alias Wakaringa Lepish parcel No. Kajiado/Olooloitikosh/Kitengela/329 which was later subdivided into Kajiado /Kitengela/27281 and 27282 to create a road, which parcels of land were registered in the names of Joseph and his brother Christopher Lepish; that these properties are not available for distribution as they relate to the estate of their late mother and not the estate of their late father; that the the two properties form gifts inter vivos and are not free property of the deceased to be distributed to other beneficiaries.
3. Joseph stated, further, that this Court is seized with jurisdiction to entertain any dispute under the Law of Succession Act and that any question regarding the validity of the title in Kajiado/Olooloitikosh/Kitengela/329 or Kajiado/Kitengela/27281 and 27282 falls outside the jurisdiction of this court and must be determined by Environment and Land Court.

Summons for Confirmation dated 6^th June 2022

1. Kevin Koitalel Lepish, the co-administrator of the estate of the deceased, filed this Summons for Confirmation of the Amended Grant issued on 9^th May 2022. He relied on his Affidavit of Protest sworn on 28^th August 2019 and Supplementary Affidavit sworn on 6^th June 2022.

Oral Evidence

1. This Court took evidence of the parties to this Cause. The evidence of Joseph Nalutori Lepish is that the deceased had subdivided and shared property to the 1^st and 3^rd houses; that the 2^nd house was left out because of disputes with the deceased; that the remaining property was not shared and remained in the deceased’s name. He testified that the 1^st house was given 3 parcels of land measuring 300 acres, being parcels Nos 327, 328 and 329.
2. On cross examination he stated that before the demise of the deceased, parcel number 329 had been registered in his mother’s name and the same was transferred to her in 1998. He denied being involved in fraud over the above-mentioned land.
3. Moses Ndegwa Gitonga, a land surveyor, testified that the deceased was his client and had instructed him to sub-divide 2 of his properties Kajiado/Kitengela 327 and 328; that he also did a valuation of 329 and 330 and introduced a road measuring 9 metres connecting both portions, which combination resulted to 8838 and 8839; that he further subdivided 327 into 8 portions, creating new numbers which were gifted as follows:
4. Parcel No. 8827 was gifted to Christopher Lepish.
5. Parcels No. 8828 and 8829 were sold to Peter Leitoro.
6. Parcel No. 8830 was sold to Titus.
7. Parcel No. 8831 was sold.
8. Parcel No. 8832 was sold.
9. Parcel No. 8833 was gifted to Joshua Lepish, and
10. Parcel No. 8834 was gifted to Simon Lepish.
11. He further stated that land 328 resulted to 8835 gifted to Joseph Lepish; 8836 was gifted to Leonard Lepish; 8838 was gifted to Nekarianyi Lepish, wife of the deceased. He stated that he did not subdivide 329 but subdivided 8838 as instructed by the deceased wife. That he has mutation forms signed by her. He stated that the deceased wished to gift 8839 to Tigesh Lepish and her children but transfer was not done before his demise.
12. On cross examination he stated that the deceased called a family meeting before the subdivisions were done; that he intended to subdivide the land and gift them; that title deeds must be surrendered after subdivision; that the deceased surrendered 329 and got 8838. That Land 330 became 8839 but the title  was not issued and that it had the old title for land 330. He stated that a search conducted in 2006 of land 329 should have found 8838 and if the same is not shown then it would not be valid. He claimed that 329 therefore ceased to exist as the number ceased when it mutated to 8838. He stated that the green card for 329 should exist and that a green card cannot be opened without mutation and return of title.
13. The evidence of Kevin Koitalel is that he is a son of the deceased from the 2^nd house. He opposed the distribution of the remaining property to the 1^st wife as the deceased had already bequeathed her before he died. He testified that land parcels number 329 and 330 were in the name of the deceased; that his mother placed caution on both parcels after the death of the deceased; that the National Land Commission wanted to pay for both parcels and that his stepbrothers were paid money fraudulently.
14. On cross examination he stated that he carried out searches on 329 and 330 in 2007 and found that these parcels of land belonged to the deceased. He stated that a caution was registered on 16/3/2020 by Tigesh Lepish and on 12/7/2001 by Joseph; that the 1^st family was given 327, 328, 329 and 330 which amounted to 100 acres. The third house was given 331, 332 and 333 but the second house had not benefitted from a share of the land. He stated that he sold part of land 330 after confirmation of grant from the lower court and that they did not get compensation from the National Land Commission for the Standard Gauge Railway (SGR).
15. Jenniffer Kisiyian Lepish stated that she is a daughter of the deceased from the second house; that her case was against the registrar and surveyor; that a caution on land 330 was placed by her mother; that land 329 and 330 remained in the name of the deceased and was not transferred to anyone; that she reported the matter to the police but no  action was taken; that title for land 330 was being held by police and that she has never seen the title for land 329.
16. Mosonik Lepish testified that he was from the 2^nd house. He claimed that parcels numbers 329 and 330 were never subdivided but remained in the name of the deceased. He stated that he placed caution on both parcels in 2000 and that he did not receive any money from the National Land Commission.
17. Joseph Kange’the, one of the Interested Parties, adopted his affidavit dated 27^th September 2017 as his evidence and testified that Kevin Lepish and Mosonik Lepish sold to him land parcel number 330; that he only has an agreement to that effect but not title; that he did not receive any money from SGR and that he was testifying on his behalf and on behalf of other interested parties and their interest in this estate as purchasers.
18. Janet Muthoni Munene, another interested party, adopted her statement recorded on 9^th November 2022 and her affidavit sworn on 15^th October 2021 as her evidence in chief. She testified that she bought land, parcel number 330 and that the SGR passed through her land. She confirmed that the land belonged to Kevin and Mosonik and that she got compensated by the National Land Commission to the tune of Kshs. 6,000,000/- when her structure on that land was demolished to pave way for the SGR. She told the court that she was in court seeking the title to the parcel of the land she had bought.
19. PC Samuel Kiprotich Langat from DCI Kajiado County testified that he investigated the complaints made by Jenniffer Kisiyian Lepish through OB No. 15/12/11/2018, over fraudulent transactions of land parcels no Kajiado/Kitengela/329 and 330; that he went to the Land Registry Kajiado for records and history of the movement of the deceased estate; that after getting the records he summoned Christopher Lepish and Joseph Lepish who were implicated and established that they were family members and after the investigations, it was recommended that the complainant moves to ELC to file a civil suit.
20. He testified that title number 330 was in the name of the deceased; that the title to land parcel 329 was not traceable despite allegations that it was closed after subdivision and that in the course of the investigations, it was recommended not to prefer charges to anyone.

Submissions

1. At the conclusion of the testimonies in court, parties filed submissions. Jenniffer Kisiyian Lepish and Musonik Ole Lepish have raised two issues in their submissions are dated 12^th June, 2024 for determination:
2. Whether the deceased to whom, this cause pertains, caused his assets known as title Nos Kajiado/Kitengela/329 and 330 be combined into parcel of land known as Title No 8837 and further a subdivision to pave way for an access road resulting to parcels of land known as title Nos Kajiado/Kitengela/8838 and 8839 from the evidence available?
3. Whether the deceased to whom this cause pertains had capacity to transfer the parcel of land known as Title No Kajiado/Kitengela/8838 on 4^th August 1998 or earlier?
4. On the first issue they argued that the Land Registrar opened a new record for parcel of land Title No. Kajiado/Kitengela 329; that the Land Registrar confirmed that there was no combination of parcels Title No Kajiado/Kitengela 329/330 to title No. Kajiado/Kitengela/8837 nor its subdivision resulting into Kajiado/Kitengela/8838 and 8839. It was their case that there was fraud and interreference, as the alleged land Kajiado/Kitengela/8837 which would be measuring 200 acres was never opened at the Land Registry Kajiado.
5. On the second issue they stated that parcel No. Kajiado/Kitengela/8838 which fraudulently mutated from Kajiado/Kitengela 329 could not have been transferred by the deceased to Nakaringi Lepish (deceased) on 4^th August, 1998. It is their case that the same could not be possible as official searches showed that cautions were placed on the said land on 16/3/2000 and another placed on 12/7/2001.
6. The Protestor raised the following issues in his submissions dated 18^th June, 2024:
7. What comprises the estate as at the time of death of Lepish Ole Lorgilla.
8. Whether the children of Esther Nekarianyi Lepish are entitled to a share of the estate.
9. Distribution of the estate to the children of Tigesh Lepish/ whether the summons dated 25^th April, 2019 ought to be confirmed.
10. On the first issue he argued that a report by A.B Gisemba, the Chief Land Registrar filed in this court an annexed in his affidavit dated 28^th August, 2019, showed that the mother title Kajiado/Kitengela/18 was subdivided on 21^st January, 1985. That this subdivision resulted in land parcels Kajiado/Olooloitikosh/Kitengela/327-333. This meant that this established land parcels Kajiado/Kitengela/329 and 330. That the report did not, however, mention that the parcel Kajiado/Kitengela/329 was ever subdivided at any given time and therefore the same is still the property of the deceased.
11. It is his case that land parcel Nos.  Kajiado/Kitengela/8838 and 8839 did not exist as parcels Nos. 329 and 330 were never subdivided. Kevin argued that the allegations by the 2^nd administrator that land parcel No. 329 was given as a gift to Nakaringi Lepish were therefore false; that there is no evidence proving this was done as no transfer documents were presented before this court.
12. Kevin submitted that parcel No. Kajiado/Kitengela/330                                                                                                                                                                                                                                                                                                                                                                                                            was never subdivided and that it did not change to Kajiado/Kitengela/8839. It is his case that the said land is still intact as evidenced by the report by the Land Registrar dated 26^th June, 2018.
13. On the second issue, he relied on section 40 of the Law of Succession on the mode of distribution of the estate of the deceased and submitted that the deceased in his lifetime distributed property to the 1^st house and 3^rd house. He submitted that given that the 1^st and the 3^rd houses were provided for by the deceased, the remainder of the property not distributed but should be given to the 2^nd house. He submitted, further, that the 1^st and 2^nd houses are large families and that there should get equal distribution of the property. He relied on section 42(a) of the Law of Succession Act and re estate of M’iraku Kaimba(2018)eKLR where it was held that:

‘I have stated time without number that section 42 of the Law of Succession Act restrains greed and double-portion to dependants. It also acts as a stabilizer and enabler of equity and equality amongst dependants enshrined in Section 38 of CAP 160 which states:

“Where an intestate has left a surviving child or children but no spouse, the net intestate estate shall, subject to the provisions of sections 41 and 42, devolve upon the surviving child, if there be only one, or shall be equally divided among the surviving children.”

The petitioners’ had already been gifted their share by the deceased which they sold thus they cannot come to prey on the remaining land and evict the protestor from the estate which is apparently John Kithamburu’s portion. I award the protestor the estate property wholly.”

1. The 2^nd administrator filed his submissions dated 12^th July, 2024 to the affidavit of protest against the confirmation of grant dated 28^th August, 2019. He raised the following issues for determination: -
2. Whether the proposed mode of distribution is valid?
3. Allegations of fraud
4. On the questions of costs, in whose favour the cost of the suit should be awarded.
5. On the first issue, it was submitted that the deceased owned all that land being Kajiado/Olooloitikosh/Kitengela/18 which was subdivided into 7 parcels; that the deceased gifted the 2^nd Administrator’s mother in 1998 with the parcel Kajiado/Olooloitikosh/Kitengela/329 which is a gift inter vivos protected by the law and therefore that the aforementioned property was not available for distribution.  He relied on a number of cases on the face of his submissions including the case of Reginah Nyambura Waitathu -vs- Tareisio Kagunda Waithatu & amp: 3 others [2016] eKLR and Re Estate of Ruth Nyakanini Rukwaro [2016]eKLR where it was held that:

“My understanding of this provision is that whatever property belonged to the deceased, and which had not yet been transferred to the individual children during the deceased’s lifetime, had to be subject to the provisions of this Act and the court would then take cognizance of the gifts given during the deceased’s lifetime. If indeed the deceased had already given the other beneficiaries their share, then that would be taken into account at the time of distribution.  But it must be proved beyond doubt that indeed the deceased gave out the property or gift during his/her life time.’’

1. It was submitted that Kajiado/Olooloitikosh/Kitengela/329 and 330 changed to Kajiado/Olooloitikosh/Kitengela/8838 and 8839; that Kajiado/Olooloitikosh/Kitengela/8838 was subdivided to create Kajiado/Kitengela 27281 and 27282 registered jointly in the name of the 2^nd administrator as well as his brother Christopher Lepish. It was his case that the third house was gifted Kajiado/Olooloitikosh/Kitengela/331, 332 and 333 and this is not disputed; that the beneficiaries should be aided by section 40 of the Law of Succession Act as they have failed to agree on the mode of distribution proposed.
2. On the second issue, it was submitted that he is not alive to any fraudulent transactions on the deceased’s land; that any question that would involve interrogation and/or validity of title number Kajiado/Olooloitikosh/Kitengela/329 or Kajiado/Olooloitikosh/Kitengela 27281 and 27282 would need to be determined by the Environment and Land Court as this Court does not have the jurisdiction to determine the same. He relied on Raphael Muriithi Ngugi -Vs-Paul Thuo Kimani[2017]eKLR  where it was held that:

“This court lacks jurisdiction to address the illegality and or misrepresentation alleged by the applicant against the deceased with regard to the title of land registered as L. R. No. LOC.9/KIRURI/3. This issue regarding title to land should be challenged in the Environment and Land Court created under Article 162(2)(b) of the Constitution of Kenya 2010 and section 13 of the Environment and Land Court, 2011 (Cap 12A of the Laws of Kenya).” 

1. The Interested Parties filed their submissions dated 18^th June, 2024. Their main argument is that this court should give judgement in their favour on account of admission by the 1^st administrator. They argued that by dint of the grant of letters of administration issued under the Magistrates court Succession Cause No. 14 of 2007 and the Certificate of Confirmation issued therein, they purchased Kajiado/Olooloitikosh/Kitengela/330 from the members of the 2^nd House, in particular Kevin Koitalel Lepish, Musonik Ole Lepish, Joel Senkento Lepish and Martin Lenana Lepish. They argued that the 1^st administrator admitted in his affidavit and testimony in court that he sold the land to the Interested Parties. They relied on various authorities on the face of their submissions including Savannah Cement Limited -vs- Paddy (K) Limited (Commercial Case E682 of 2021) [2023] KEHC 17350(KLR) (Commercial and Tax) (12^th May, 2023) Ruling where the court held that:

“The main issue for determination is whether judgment on admission ought to be entered against the defendant. Order 13 Rule 2 of the Civil Procedure Rules, 2010 under which the Plaintiff sought entry of judgment on admission provides as follows: -

“Any party may at any stage of a suit, where admission of facts has been made, either on the pleadings or otherwise apply to the court for such judgment or order as upon such admissions he may be entitled to, without waiting for the determination of any other question between the parties; and the court may upon such application make such order or give such judgment as the court may think just.”

1. They also relied on the case of Monarch Insurance Company Limited -Vs- Disney Insurance Brokers Limited [2021] eKLR.
2. They argued that the whole of the said property was sold, and the only thing left for distribution is the monies accruing from compensation from the National Land Commission. They relied on Clause 6 of the mode of distribution dated 3^rd September 2019 filed by the 1^st Administrator together with consent thereto where it was proposed that from the proceeds of Kshs, 56,000,000/- acquired for compulsory acquisition of parcels L.R No. Kajiado/Kitengela/329 and 330, Kevin Koitalel Lepish & Nzaku & Nzaku Co. Advocates, Kshs. 10,000,000/- for and on behalf of Interested Parties affected by compulsory acquisition of portion Kajiado/Kitengela/330.

Analysis and Determination

1. This is an old matter, spanning from 20^th February 2007 when Kevin Koitalel Lepish and Mosonic Ole Lepish petitioned the lower court in Succession Cause No. 14 of 2007 for a grant of the letters of administration intestate in respect of the estate of Lepish Ole Lorgila, deceased. In that Petition, the two listed two properties as forming the estate of the deceased: Kajiado/Olooloitikosh/Kitengela/329 and 330.
2. They were issued with the grant on 28^th August 2007. The grant was confirmed on 20^th May 2010 by the same court as shown on the Certificate of Confirmation of that date.
3. It seems that the rest of the family was not happy with the turn of events. Summons for Revocation/Annulment of the Grant were filed by the other family members. There are Summons for Revocation of Grant dated 23^rd October 2007 filed at Kajiado Principal Magistrate’s Court Succession Cause No. 14 of 2007 and another Summons for Revocation filed in Nairobi High Court Succession Cause No. 2447 of 2014 supported by an Affidavit sworn by Joseph Nalutori Lepish. The file was transferred to Kajaido High Court and acquired a new number, High Court of Kenya at Kajiado Succession Cause No. 95 of 2015. The latter Application cited jurisdiction reasons for seeking revocation for reasons that the value of the estate was higher than a lower court could handle.
4. By a Ruling delivered on 30^th July 2018, the grant issued in the lower court was revoked. The Court issued a fresh Grant on 3^rd April, 2019 to Kevin Kiotalel Lepish (representing the 2^nd House), Joseph Nalutori Lepish (representing the 1^st House) and Beatrice Sinyok Leipish (representing the 3^rd House). Beatrice Sinyok Lepish sought to withdraw from being an administrator stating that she had been given her share of the estate by the deceased during his lifetime. This Court allowed her to withdraw from being a co-administrator and rectified the Grant on 9^th May 2022 to remove her name and retain Kevin Kiotalel Lepish and Joseph Nalutori Lepish as co-administrators.
5. During the pendency of this matter in court, both before the lower court and this court, some of the beneficiaries have passed on. The Cause has also attracted 139 Interested Parties, all claiming purchaser’s interest in the estate of the deceased.
6. I wish to also state in this judgment that the issues raised in this Cause touching on the interested parties interest in the matter and the many subdivisions of the estate of the deceased are complex. After careful reading of the entire voluminous file, I have identified the following areas as not disputed:
7. That the deceased died intestate on 26^th February 2001.
8. That the deceased was polygamous with three wives and number of children as enumerated in these proceedings.
9. That the original title of the property forming the estate of the deceased was Kajiado/Olooloitikosh/Kitengela/18.
10. That this title was subdivided into several portions, Kajiado/Olooloitikosh/Kitengela/327-333.
11. Issues begin to get murkier when the co-administrators fail to agree on the issues touching on what comprises the estate of the deceased. Joseph Narutori Lepish holds the view that parcel number 329 became parcel number 8838 and that parcel number 330 became parcel number 8839. He further stated that parcel number 8838 was subdivided to create Kajiado/Kitengela 27281 and 27282 which were registered jointly in the name of Joseph and his brother Christopher Lepish. It was his case that the third house was gifted Kajiado/Olooloitikosh/Kitengela/331, 332 and 333 and this is not disputed.
12. According to Kevin, parcel numbers Kajiado.Olooloitikosh/Kitengela 8838 and 8839 do not exist because parcel numbers Kajiado/Olooloitikosh/Kitengela/329 and 330 were never subdivided. Kevin also denied that parcel number 329 was gifted to Esther Nakaringi Lepish, the 1^st wife. He maintains that the two parcels 329 and 330 remain in the name of the deceased and form the estate of the deceased and therefore available for distribution.

Issues for determination

1. My careful analysis of all the materials placed before me, including the issues identified by the parties for determination, leads me to two main issues for determination:
2. What property forms the estate of the deceased.
3. Who should benefit from the distribution of that property.
4. In my considered view, determination of the above two issues will resolve the issues as to whether there are gifts inter vivos; issues of fraud, and what, if any, is the interest of the 139 individuals who have come to court claiming purchaser’s interest in the estate of the deceased.
5. The presentation of the evidence by the parties, especially touching on the subdivision of the original title parcel number 18 and the subsequent subdivisions, was not done well. Parties seemed interested in making arguments in their submissions without presenting evidence that would have been backed by those submissions. I need to reiterate that submissions are not evidence as was stated in Ngang’a & Another vs. Owiti & Another [2008] 1KLR (EP) 749, that:

“As the practice has it and especially where counsel appears, a Court may hear final submissions from them. This, strictly speaking, is not part of the case, the absence of which may do prejudice to a party. A final submission is a way by which counsel or sometimes (enlightened) parties themselves, crystallize the substance of the case, the evidence and the law relating to that case. It is, as it were, a way by which the Court’s focus is sought to be concentrated on the main aspects of the case which affect its outcome. Final submissions are not evidence. Final submissions may be heard or even dispensed with. But the main basis of a decision in a case, we can say are: the claim properly laid, evidence fully presented and the law applicable.”

1. Further, in Daniel Toroitich Arap Moi vs. Mwangi Stephen Muriithi & Another [2014] eKLR, the Court had this to say about submissions:

“Submissions cannot take the place of evidence.  The 1^st respondent had failed to prove his claim by evidence.  What appeared in submissions could not come to his aid.  Such a course only militates against the law and we are unable to countenance it.  Submissions are generally parties’ “marketing language”, each side endeavouring to convince the court that its case is the better one.  Submissions, we reiterate, do not constitute evidence at all.  Indeed there are many cases decided without hearing submissions but based only on evidence presented.”

1. To my understanding, land parcels number 329 and 330 are disputed as shown in this judgment. Kevin in his evidence in chief told the court that plot numbers 329 and 330 were in the name of the deceased and that problems in respect of the two parcels started after his brothers entered the two parcels and started occupying them. He stated that parcel numbers 329 and 330 were fraudulently changed to parcel numbers 8838 and 8839 respectively; that these changes were not carried out by the deceased. He stated that the title to parcel number 330 is held by the DCI but that of parcel number 329 is untraceable.
2. On further cross-examination, Kevin stated that after obtaining confirmation of the grant in the lower court in respect of the two parcels of land (329 and 330), he and his brother Mosonik subdivided parcel number 330 and sold portions of it. He denied knowledge that there are 139 people claiming to have bought land from parcel number 330. He stated that he later learned that their late stepmother, Nakarigi, was the owner of parcel number 8838 (originally 329).
3. Mosonik, too, denied in his testimony that parcel numbers 329 and 330 were subdivided. He stated in cross-examination that title number 8838 is a fake title and sought to have it revoked.
4. Joseph Larutori, on the other hand, reiterated his averments in his handwritten witness statement. He told the court that the deceased shared out property to the first and third houses leaving out the second house because of disputes with the second house. He told the court that the property that was not shared, which the court understands to be parcel number 330, is still in the name of the deceased and the title deed is being held by the DCIO; that the parcel has been sold by the children of the second house.
5. The Interested Parties, represented by Joseph Kang’ethe and Janet Muthoni Munene, who testified in court, are claiming purchaser’s interest. Both these witnesses told the court that they bought parcels of land from parcel number 330 and that they have no claim over parcel number 329. Both stated that they bought land from Kevin and his brother Musonik.
6. I have also considered the evidence of PC Langat from DCI Office in Kajiado County who investigated this case. His evidence is clear that the fraudulent allegations related to parcel numbers 329 and 330. He said the complaints were against Joseph Narutoli Lepish and Christopher Lepish and were made by Jeniffer Lepish. The outcome of the investigations was that the family was advised to file a case before the ELC for determination.
7. To my understanding of the evidence presented to court in this Cause, the Interested Parties are not pursuing parcel number 329. According to the evidence and admission by Kevin and Musonik, the portions of parcel number 330 were sold to the Interested Parties although Kevin denied knowledge that there are 139 people claiming purchaser’s interest over parcel number 330.
8. The first house through Joseph and the 3^rd house through Beatrice Sinyok Lepish have benefited through land shared to them by the deceased before he passed on. Some of the property shared to Joseph and his siblings from the 1^st house was transmitted to them through their late mother Nakaringi. I understood Joseph to be telling the court that the children of the 1^st house have no claim over parcel number 330 because they have already benefited from a share of the estate of the deceased. Kevin has admitted knowledge that he came to know that parcel number 329 which is said to have become 8838, belonged to Nakaringi.
9. Fraud is alleged in this matter pointing to the children of the first house. PC Langat investigated the matter and found no evidence requiring him to charge anyone in this matter. Fraud is defined in Black’s Law Dictionary 11^th Edition as

“A knowing misrepresentation or knowing concealment of material facts made to induce another to act to his or her detriment.”

1. In Vijay Morjaria vs Nansingh, Madhusingh Darbar & another [2000]eKLR it was held that:

“It is well established that fraud must be specifically pleaded and the particulars of fraud alleged must be stated on the face of the pleading. The act alleged to be fraudulent must of course be set out and then it should be stated that these acts were done fraudulently. It is also settled law that fraudulent conduct must be distinctly alleged and distinctly proved and it is not allowable to leave fraud to be inferred from the facts.”

1. The standard of proof required in claims based on fraud is higher than in ordinary civil cases as was held in Koinange & 13 others vs Charles Karuga Koinange 1986 KLR:

“When fraud is alleged by the Plaintiffs the onus is on the Plaintiffs to discharge the burden of proof. Allegations of fraud must be strictly proved, although the standard of proof may not be so heavy as to require proof beyond a reasonable doubt, something more than a balance of probabilities is required.”

1. The Protestor, Kevin and his siblings, have not discharged the burden of proof in this Cause to show any fraudulent dealings with the estate in respect of the children from the first house or any other beneficiary.
2. Before concluding the determination of this issue, I need to refer to the law on what constitutes gift inter vivos. Gifts inter vivos are covered under section 42 of the Law of Succession Act. It provides that:

Where—

(a) an intestate has, during his lifetime or by will, paid, given or settled any property to or for the benefit of a child, grandchild or house; or

(b) property has been appointed or awarded to any child interor grandchild under the provisions of section 26 or section 35, that property shall be taken into account in determining the share of the net intestate estate finally accruing to the child, grandchild or house.

1. I understand the 1^st and 3rd houses to be telling the court that they their respective houses were gifted by the deceased during his life and therefore they have no claim over the remaining property, which according to the evidence of the 2^nd administrator, Joseph Nalutori, is parcel number 330. Joseph was recorded in evidence telling the court that the 1^st and 3^rd houses had benefited from sharing the property from his late father leaving the 2^nd house without any shares. From the available evidence parcel number 330 was not shared out and remains in the name of the deceased. From the evidence on record, I did not understand the 1^st and 3^rd houses to be telling the court that they want to share the remaining property among the three houses.
2. Betrice Sinyok was clear and categorical that she has benefited from a share of the estate of the deceased and does not wish to share any remaining property. Joseph Nalutori, on the other hand, proposed in his Summons for Confirmation, the sharing of parcel number 330 as shown in his Supporting Affidavit sworn on 25^th April 2019. The Summons for Confirmation and the proposed mode of distribution by Joseph seems to contradict his evidence in court during his evidence in chief and cross examination. He was clear that the 1^st house, where he belongs, got its share of the estate. On cross-examination by Mr. Wetaba he told the court that:

“Before father died first house had been given their share. I am aware that the 3^rd house have no claim over the property. What was remaining belongs to the 2^nd house.”

1. Distribution of the property of a deceased who died intestate is governed by section 40 (1) of the Law of Succession Act. It provides that:

“Where an intestate has married more than once under any system of law permitting polygamy, his personal and household effects and the residue of the net intestate estate shall, in the first instance, be divided among the houses according to the number of children in each house, but also adding any wife surviving him as an additional unit to the number of children”.

1. Commenting on this provision, the Court in Appeal in Scolastica Ndululu Suva vs. Agnes Nthenya Suva [2019] eKLR expressed itself at paras 15-21 as hereunder:

“In Mary Rono vs Jane Rono & another (supra), Waki JA in the leading judgment, accepted the proposition that the Court had the discretion in ensuring a fair distribution of the deceased’s estate but that the discretion must be exercised judicially on sound legal and factual basis.…It is therefore evident, that, although section 40 of the Law of Succession Act provides a general provision for the distribution of the estate of a polygamous deceased person, the court has discretion to take into account factual circumstances of the particular case that may be relevant in ensuring equitable and fair distribution of the estate.”

1. Justice Odunga, as he then was, cited with approval Scholastica Ndululu Suva case, above, in In re Estate of Nzolove Kisuke alias Daudi Nzolove Kisuke (Deceased) [2022] eKLR where he stated that:

“40.   It is therefore clear on judicial authority that the strict application of section 40 of the Law of Succession Act may well lead to an absurdity and I associate myself with the opinion of the Court of Appeal that the said section only provides a general provision for the distribution of the estate of a polygamous deceased person. However, the court has discretion to take into account factual circumstances of the particular case that may be relevant in ensuring equitable and fair distribution of the estate. It is my view that the relationship between the deceased and his beneficiaries as well as the age of the beneficiaries may well determine the mode of distribution in order to attain fairness.”

1. My considered view based on the available evidence is that the only property left in the name of the deceased is parcel number 330. This property, in my view, is the only property left unshared to the beneficiaries. evidence shows that it is in the name of the deceased. Evidence also shows that the 2^nd house is the only house that has not benefitted from a share of the estate of the deceased. Further, going by the evidence on record, the 1^st house and 3^rd house have already benefited from a share of the property before the demise of the deceased.
2. This brings me to the second issue: Who should benefit from the distribution of that property? Having concluded that the only property left undistributed is parcel number 330 and that the 1^st and 3^rd houses have already benefited from the sharing of the property by the deceased to the two houses when deceased was alive, I am of the considered view that this property, 330, was meant for the 2^nd house. That is the conclusion I can arrive at based on the evidence tendered in court. It would be unfair to the 2^nd house to have this property shared out amongst all the beneficiaries from the three houses, given that the other two houses have already benefited from the property.
3. This brings to the fore the claim by 139 Interested Parties. They all claim purchaser’s interest. The evidence of Janet Muthoni Munene and Joseph Kang’ethe, the two Interested Parties who testified on behalf of the others were clear in their evidence that they bought portions of land from Kevin and Christopher and that the portions of land they each bought was from parcel number 330.
4. The court record bears an order issued by this court (Nyakundi, J) on 13^th December 2018 to the effect that the Interested Parties to pursue their claim within the Succession Cause. I understand this order to mean that all the Interested Parties who claim purchaser’s interest in this estate were to pursue their claim within these proceedings. If that is what the order means, there is a problem. This court is sitting to determine this matter as a probate court. The primary duty of a probate court is to distribute the estate of a deceased person to the rightful heirs. Any questions relating to title to land or validity of that title must be adjudicated by the Environment and Land Court (ELC) by dint of section 13 of the Environment and Land Court and Article 162 (2) (b) of the Costitution.
5. This Court is not clothed with the requisite jurisdiction to determine the purchasers’ interest in the portions of land claimed by the Interested Parties in this matter. As stated by the Supreme Court in Samuel Kamau Macharia & Another –vs- Kenya Commercial Bank Limited & others (2012) eKLR that -

“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 to itself jurisdiction exceeding that which is conferred upon it by law. We agree with counsels for the first and second respondents in his submission that the issue as to whether a Court of law has jurisdiction to entertain a matter before it, is not one of mere procedural technicality, it goes to the very heart of the matter, for without jurisdiction, the Court cannot entertain any proceedings … where the Constitution exhaustively provides for the jurisdiction of a Court of law, the Court must operate within the constitutional limits. It cannot expand its jurisdiction through judicial craft or innovation….”

1. This c ourt’s jurisdiction is provided under section 47 of the Law of Succession Act as follows: -

The High Court shall have jurisdiction to entertain any application and determine any dispute under this Act and to pronounce such decrees and make such orders therein as may be expedient.

1. In Pricilla Ndubi and Zipporah Mutiga -vs- Gerishon Gatobu, Meru Succession Cause No. 720 of 2013 the court pronounced itself on the mandate of a Probate Court in the following manner:

“The primary duty of the Probate Court is to distribute the estate of the deceased to the rightful beneficiaries. As of necessity, the estate property must be identified. Thus, where issues on ownership of the property in the estate are raised in a succession cause, they must be resolved before such property is distributed. And that is the very reason why rule 41(3) of the Probate and Administration Rules was enacted so that claims which are prima facie valid should be determined before confirmation.

1. All the 139 Interested Parties must move the right court seized with the requisite jurisdiction to litigate the issues raised here. The effect of this decision is that distribution of the property of the deceased not shared out to the beneficiaries cannot proceed at this state until the interest of the Interested Parties is determined.
2. Consequently, the Summons for Confirmation dated 6^th June 2022 filed by Kelvin Koitalel and the Summons dated 25^th April 2019 by Joseph Nalutori as well as the Protest by Kelvin Koitalel cannot be allowed for those reasons. They are hereby declinedc. The distribution of the estate of the deceased, what remains of it after the shares that went to the 1^st and 3^rd houses, can only be done after the determination of the Interested Parties interests in the estate in the correct forum.
3. Given the nature of the dispute, I order that each party bears own costs.
4. Orders shall issue accordingly.

Dated, signed and delivered this 21^st February 2025.

S. N. MUTUKU

JUDGE

In the Presence of:

1. Mr. Ondabu and Ms Chepkoech for Beneficiaries Joseph Lepish and Christopher Lepish

2. Mr. Wetaba for Administrator, Kevin Lepish.

3. Mr. Mureithi holding brief for Muema for Beneficiaries, Jeniffer Lepish and Musonik Lepish.

4. Mr. Nduli for 139 Interested Parties.