Henry Kiplangat Bett & 1 other v Borta Chepngetich Bett

5. The Petitioners then filed Summons for confirmation of Grant dated 3rd July 2023 where the 1st Petitioner annexed his proposed mode of distribution in the Affidavit dated 3rd July 2023. 6. Being dissatisfied with the proposed mode of distribution, Borta Chepngetich Bett one of the beneficiaries filed an Objection dated 21st August 2023 on 19th September 2023. On 6th December 2023, the Petitioner asked for time to go and discuss the Protest at home and he was granted the prayer by this court. Further at the request of the parties, this court directed that the meeting be convened by the Chief of Cheboryot location to assist the parties in resolving the dispute. 7. The family held meetings and reached some resolutions. The report authored by the Chief was subsequently filed in court on 15th January 2024 by the petitioners. The report stated that the family had agreed that the deceased was survived by two widows Alice Chepkoech Ngeny and Recho Chepkemoi Ngeny (1st and 2nd wives respectively). That the family agreed on the two parcels of land being divided equally between the two widows or households. That they further agreed on a mode of distribution as follows: Kericho/Kyogong/273-share of 4.6acres:i. Alice Chepkoech Ngeny nil ii. Henry Kiplangat Bett 1 acre iii. Lucy Chepkemoi Mazeti 1 acre iv. Sammy Kiprotich Tonui 1 acre v. Borta Chepngetich Bett 0.2acre vi. Linnah chemutai Maki 0.2acre vii. Betty Chesang Rop 0.2acre viii. Leonard Tonui 1 acre Kericho/Ndaraweta/115 share of 9.25 acres 8. i. Alice Chepkoech Ngeny nil ii. Henry Kiplangat Bett 2.3125 acres iii. Lucy Chepkemoi Mazeti 2.3125 acres iv. Sammy Kiprotich Tonui 2.3125 acres v. Leonard Tonui 2.3125 acres vi. Borta Chepngetich Bett nil vii. Linnah chemutai Maki nil viii. Betty Chesang Rop nil The Report categorically stated that the parties had agreed on the distribution. On the same breath however, the Report stated that the Objector Borta Chepngetich Bett had refused to attend the mediation while the rest of the members all attended and signed the minutes. Technically therefore there was no agreement between the Objector and the rest of the family. https://new.kenyalaw.org/akn/ke/judgment/kehc/2024/16354/eng@2024-12-03 2

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9. When the Mediation failed, parties came back to this court and sought directions on the hearing of the Protest. The court directed each party to file their preferred mode of distribution and submissions to support their respective positions. The Petitioner’s preferred mode of distribution (Henry Kiplangat Bett) 10. 11. Kericho/Ndaraweta/115 i. Alice Ngeny Nil ii. Henry Kiplangat Bett 2.3125 acres iii. Lucy Chepkemoi 2.3125 acres iv. Sammy Kiprotich Tonui 2.3125 acres v. Leonard Tonui 2.3125 acres vi. Borta Chepngetich Bett Nil vii. Linner Chemutai Maki Nil viii. Betty Chesang Rob Nil ix. Recho Chepkemoi Ngeny 9.25 acres. Kericho/Kyogong/273 i. Alice Ngeny Nil ii. Henry Kiplangat Bett 1 acre iii. Lucy Chepkemoi 1 acre iv. Sammy Kiprotich Tonui 1 acre v. Leonard Tonui 1 acre vi. Borta Chepngetich Bett 0.2 acres vii. Betty Chesang Rob 0.2 acres viii. Linner Chemutai Maki 0.2 acres ix. Recho Chepkemoi Ngeny 4.6 acres x. Julius Bett Nil xi. Benard Bett Nil xii. Charles Bett Nil xiii. Hillary Bett Nil xiv. Hellen Koech Nil xv. Rose Chepkoech Nil xvi. Mercy Cherotich Korir Nil xvii. Gladys Chepkirui Langat Nil https://new.kenyalaw.org/akn/ke/judgment/kehc/2024/16354/eng@2024-12-03 3

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The Objector’s preferred mode of distribution (Borta Chepngetich Bett) 12. 13. Kericho/Ndaraweta/115 i. Alice Ngeny 0.962 acres ii. Henry Kiplangat Bett 0.962 acres iii. Lucy Chepkemoi 0.962 acres iv. Sammy Kiprotich Tonui 0.962 acres v. Leonard Tonui 0.962 acres vi. Borta Chepngetich Tonui 0.962 acres vii. Linner Chemutai Maki 0.962 acres viii. Betty Chesang Rob 0.962 acres ix. Recho Chepkemoi Ngeny 0.962 acres x. Julius Bett 0.962 acres xi. Benard Bett 0.962 acres xii. Charles Bett 0.962 acres xiii. Hillary Bett 0.962 acres xiv. Hellen Bett 0.962 acres xv. Rose Chepkoech 0.962 acres xvi. Mercy Cherotich Korir 0.962 acres xvii. Gladys Chepkirui Langat 0.962 acres xviii. Gilbert Bett 0.962 acres xix. Robert Bett 0.962 acres Kericho/Kyogong/273 i. Alice Ngeny 0.442 acres ii. Henry Kiplangat Bett 0.442 acres iii. Lucy Chepkemoi 0.442 acres iv. Sammy Kiprotich Tonui 0.442 acres v. Leonard Tonui 0.442 acres vi. Borta Chepngetich Tonui 0.442 acres vii. Linner Chemutai Maki 0.442 acres viii. Betty Chesang Rob 0.442 acres ix. Recho Chepkemoi Ngeny 0.442 acres https://new.kenyalaw.org/akn/ke/judgment/kehc/2024/16354/eng@2024-12-03 4

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14. x. Julius Bett 0.442 acres xi. Benard Bett 0.442 acres xii. Charles Bett 0.442 acres xiii. Hillary Bett 0.442 acres xiv. Hellen Bett 0.442 acres xv. Rose Chepkoech 0.442 acres xvi. Mercy Cherotich Korir 0.442 acres xvii. Gladys Chepkirui Langat 0.442 acres xviii. Gilbert Bett 0.442 acres xix. Robert Bett 0.442 acres Following the directions of this court on 3rd June 2024, the parties filed written submissions as follows:- The Objector’s submissions 15. Through her submissions dated 1st July 2024, the Objector submitted that the deceased was married to two wives. That the deceased was a polygamous man and his estate ought to be divided in accordance to section 40 of the Law of Succession Act which provided for equal distribution of the deceased’s estate among the houses and according to the number of children in each house. That a surviving spouse was to be added as an additional unit to the number of children. She relied on Mary Rono vs Jane Rono & another (2005) eKLR, re estate of Benson Ndirangu Mathenge (Deceased) (2018) eKLR and re estate of Ainea Masinde Walubengo (2017) eKLR. 16. It was the Objector’s submission that section 38 of the Law of Succession Act provided for equal distribution of a deceased’s estate to the surviving children irrespective of gender and whether they were married or not. It was her further submission that the deceased’s two properties ought to be equally divided among the beneficiaries as contained in her preferred mode of distribution. The Petitioners’ submissions 17. Through their submissions dated 16th July 2024, the Petitioners submitted that the beneficiaries had agreed to divide the deceased’s estate between the two houses as the deceased was married to Alice Chepkoech Ngeny from the first house and Recho Chepkemoi Ngeny from the second house. That from the first house, his wife Alice Chepkoech Ngeny was to get 4.6 acres in KERICHO/ KYOGONG/273 and 9.25 acres in KERICHO/NDARAWETA/115. 18. It was the Petitioners’ submission that the daughters of the deceased formally renounced their claims to KERICHO/NDARAWETA/115 through Affidavits sworn on 15th January 2024. That Alice Chepkwony Ngeny, the deceased’s 1st wife formally renounced her interest on her share of land based on her advanced age. 19. The Petitioner submitted that in regard to Kericho/Kyogong/273, the 1st and 2nd house were to get an equal share of 4.6 acres and further the two houses were also to get an equal share of 9.25 acres each in KERICHO/NDARAWETA/115. https://new.kenyalaw.org/akn/ke/judgment/kehc/2024/16354/eng@2024-12-03 5

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20. It was the Petitioners’ submission that in regard to KERICHO/KYOGONG/273, beneficiaries from the 2nd house i.e. Recho Chepkemoi Ngeny, Julius Bett, Benard Bett, Charles Bett, Hillary Bett, Gilbert Bett and Robert Bett would all get 0.575 acres each while Hellen Koech, Rose Koech, Mercy Cherotich Korir and Gladys Chepkirui would not get a share. It was their further submission that in regard to KERICHO/NDARAWETA/115, Recho Chepkemoi Ngeny, Julius Bett, Benard Bett, Charles Bett, Hillary Bett, Gilbert Bett and Robert Bett would all get 1.15 acres each while Hellen Koech, Rose Koech, Mercy Cherotich Korir and Gladys Chepkirui would not get a share. 21. The Petitioners submitted that the deceased’s estate would be distributed by the personal representatives of each house as per the mode of distribution above. 22. I have gone through the entire court record including the Summons for Confirmation of Grant dated 3rd July 2023, the Objection dated 21st August 2023, the Objector’s written submissions dated 1st July 2024 and the Petitioners’ written submissions dated 16th July 2024. The only issue for my determination was to come up with a fair and just mode of distribution of the deceased’s estate. Analysis 23. From the record, I have noted that Kibet arap Ngeny (deceased) had two wives. His dependants are listed as follows:1st House. i. Alice Chepkoech Ngeny Widow ii. Henry Kiplangat Bett Son iii. Lucy Chepkemoi Mazeti Daughter in law iv. Sammy Kiprotich Tonui Son v. Leonard Tonui Son vi. Borta Chepngetich Bett Daughter vii. Linner Chemutai Maki Daughter viii. Betty Chesang Rob Daughter 2nd House i. Recho Chepkemoi Ngeny Widow ii. Julius Kipngeno Bett Son iii. Benard Kipngetich Bett Son iv. Robert Bett Son v. Charles Bett Son vi. Gilbert Bett Son vii. Hillary Bett Son viii. Hellen Koech Daughter ix. Rose Chepkoech Biwott Daughter https://new.kenyalaw.org/akn/ke/judgment/kehc/2024/16354/eng@2024-12-03 6

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24. 25. x. Mercy Cherotich Korir Daughter xi. Gladys Chepkirui Langat Daughter Section 40 of the Law of Succession Act provides:(1) 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. (2) The distribution of the personal and household effects and the residue of the net intestate estate within each house shall then be in accordance with the rules set out in sections 35 to 38. The Court of Appeal in Scolastica Ndululu Suva vs. Agnes Nthenya Suva (2019) eKLR stated:“ 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.” 26. Similarly in re Estate of Nzolove Kisuke alias Daudi Nzolove Kisuke (Deceased) (2022) eKLR, Odunga J. (as he then was) held:“ 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……..”(Emphasis mine) 27. The Objector proposed equal distribution of the deceased estate comprising KERICHO/ KYOGONG/273 and KERICHO/NDARAWETA/115 equally among the 19 beneficiaries. On the other hand, the 1st Petitioner stated that his mother (Alice Chepkoech Ngeny) and the deceased’s daughters had renounced their shares of land in KERICHO/NDARAWETA/115 by swearing Affidavits. 28. I have looked at the Affidavits referenced by the 1st Petitioner. The first Affidavit dated 29th December 2023 was sworn by the 1st widow (Alice Ngeny) and it stated that she agreed to have Henry Kiplangat Bett and Recho Chepkemoi Ngeny as the joint Petitioners in this case. That she was also in agreement with the mode of distribution as proposed by the Petitioners. The mode of distribution which she thumb printed indicated that she would not get a share of the land. She also stated in her affidavit that she was of advanced age of 90 years and agreed to be represented by her son the 1st Petitioner and her co-wife the 2nd Petitioner. 29. The second Affidavit dated 29th December 2023 was sworn by Linner Chemutai Maki and it stated that she renounced her claim in KERICHO/NDARAWETA/115 as she was satisfied with her share of 0.2 acres to be excised from KERICHO/KYOGONG/273. https://new.kenyalaw.org/akn/ke/judgment/kehc/2024/16354/eng@2024-12-03 7

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30. The third Affidavit dated 29th December 2023 was sworn by Betty Chesang Rop and it stated that she renounced her claim in KERICHO/NDARAWETA/115 as she was satisfied with her share of 0.2 acres to be excised from KERICHO/KYOGONG/273. 31. From the above, it was clear that only two daughters of the deceased from the first household renounced their claims in KERICHO/NDARAWETA/115 i.e. Linner Chemutai Maki and Betty Chesang Rop. It was also clear that their renunciation only affected the distribution in their mother’s household. The other daughters were bona fide beneficiaries as provided for in the law. In Re Estate of Solomon Ngatia Kariuki (deceased) (2008) eKLR Makhandia, J. (as he then was) held:“ The Law of Succession Act does not discriminate between the female and male children or married or unmarried daughters of the deceased person when it comes to the distribution of his estate. All children of the deceased are entitled to stake a claim to the deceased's estate. In seeking to disinherit the protestor under the guise that the protestor was married, her father, brothers and sisters were purportedly invoking a facet of an old Kikuyu Customary Law. Like most other customary laws in this country they are always biased against women and indeed they tend to bar married daughters from inheriting their father's estate. The justification for this rather archaic and primitive customary law demand appears to be that such married daughters should forego their father's inheritance because they are likely to enjoy inheritance of their husband's side of the family.” 32. Similarly, Kimaru J. (as he then was) in Peter Karumbi Keingati & 4 others vs. Dr. Ann Nyokabi Nguthi & 3 others (2014) eKLR held:“ As regards to the argument by the Applicants that married daughters ought not to inherit their parent's property because to do so would amount to discrimination to the sons on account on the fact that the married daughters would also inherit property from their parent's in-laws, this court takes the view that the argument as advanced is disingenuous. This is because if a married daughter would benefit by inheriting property from her parents, her husband too would benefit from such inheritance. In a similar fashion, sons who are married, would benefit from property that their wives would have inherited from their parents. In the circumstances therefore, there would be no discrimination. In any event, the decision by a daughter or a son to get married has no bearing at all to whether or not such son or daughter is entitled to inherit the property that comprise the estate of their deceased parents. The issues that courts would grapple with during distribution are the issues anticipated by Section 28 of the Law of Succession Act…..” 33.As stated earlier in this Ruling, section 40 of the Law of Succession Act envisaged equal distribution of the deceased’s estate among the two houses. The deceased’s wives (Alice Chepkoech Ngeny and Recho Chepkemoi Ngeny) were to be added as additional units to the children. The Court of Appeal in Mary Rono vs Jane Rono & another (2005) eKLR held:“ …….section 40 of the Succession Act should have been applied in which case all the children and the widows would have been considered as units, entitling them to equal distribution of the land…….” 34. In this case however I have already set out the express agreement of the beneficiaries in the first household. Their family meeting took into consideration the settlements of some of the older members of the family and the wishes of the two married daughters Linner Chemutai Maki and Betty Chesang https://new.kenyalaw.org/akn/ke/judgment/kehc/2024/16354/eng@2024-12-03 8

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Rop who renounced their right to an equal share and were contented to receive only 0.2 acres in Kericho/Kyogong/273 and no share in Kericho Ndarawetta/115. 35. From the above, the understanding which this court sees no need to interfere with, being of their own free will, is that their brothers from their mother’s household will get a bigger share. This court further sees no justifiable cause to interfere with their mother’s express wish that she was of advanced age and was contented to share out the land to her children. From the report, she had directed her sons and step sons to proceed with the agreed demarcation and also beseeched the family members and in particular the Objector to withdraw court cases and settle amicably as a family. 36. This court upholds the law and the agreement of the parties that the two households would get an equal share of both Kericho/Ndaraweta/115 and Kericho/Kyogong 273. The former is estimated at 18.3 acres and therefore each household will get 9.15 acres. The latter is estimated at 8.4 acres and therefore each household will get 4.2 acres. 37. The just and fair distribution in the 1st household which takes into account the express wishes of the beneficiaries in the 1st household would work as follows. An equal distribution of 9.15acres between 8 units would yield 1.14 acres each. The Objector Borta Chepngetich Bett therefore gets her beneficial share of 1.14 acres. Alice Chepkoech Ngeny (1st widow), Linner Chemutai Maki and Betty Chesang Rob opted out of their individual share computed by this court at 1.14 acres each, making a total of 3.42 acres in favour of the sons of the 1st household. Each of the 4 sons would therefore get their initial equal share of 1.14 acres each plus 0.8555 acres redistributed from their mothers’ and 2 sisters’ share making 1.99 acres each. 38. In the best interest of justice and taking into consideration the parties’ interests, the following is this court’s finding on the mode of distribution of the deceased’s estate. 39. The distribution for KERICHO/KYOGONG/273 for the 1st House (4.6acres) will therefore be:i. Alice Chepkoech Ngeny NIL ii. Henry Kiplangat Bett 0.84 acres iii. Lucy Chepkemoi Mazeti 0.84 acres iv. Sammy Kiprotich Tonui 0.84 acres v. Leonard Tonui 0.84 acres vi. Borta Chepngetich Bett 0.84 acres vii. Liner Chemutai Maki 0.2 acres viii. Betty Chesang Rob 0.2 acres 40. The half share of Kericho/Kyogong/273 (4.6acres) shall go to Recho Chepkemoi Ngeny for the 2nd household. 41. KERICHO/NDARAWETA/115 (18.3 acres) The distribution for the 1st household would be total of 9.15 acres i. Alice Chepkoech Ngeny Nil ii. Henry Kiplangat Bett 1.99acres iii. Luzy Chepkemoi Mazeti 1.99 acres https://new.kenyalaw.org/akn/ke/judgment/kehc/2024/16354/eng@2024-12-03 9

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iv. Sammy Kiprotich Tonui 1.99 acres v. Leonard Tonui 1.99 acres vi. Borta Chepngetich Bett 1.14 acres vii. Liner Chemutai Maki Nil viii. Betty Chesang Rob Nil 41. The second widow Recho Chepkemoi Ngeny will hold her half share of (9.15 acres) to distribute to members of her household as per their household agreement. 42. The Grant is accordingly confirmed in accordance with this Ruling. 43. A certificate of confirmation of Grant shall issue accordingly. Orders accordingly. RULING DELIVERED, DATED AND SIGNED THIS 3RD DAY OF DECEMBER, 2024. ........................ R. LAGAT-KORIR JUDGE Ruling delivered in the presence of the 1st Petitioner present acting in person, Mr. J.K. Koech holding brief for Mr Ngeno for the for the Objector, Siele (Court Assistant). https://new.kenyalaw.org/akn/ke/judgment/kehc/2024/16354/eng@2024-12-03 10

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