Leah Jepkirong Chepkwony v David Sinyei & 1 other

to hearing of the Summons for Confirmation which was to be amended to reflect the inclusion of the Objectors as Administrators. The Objectors were then granted leave to file Protests to the Summons for Confirmation, once amended and served. 5. Before the above directions could be executed, the 1st Objector, David Sinyei, through Messrs Songok & Co. Advocates, filed the Preliminary Objection dated 10/03/2025 basically claiming that the properties listed in the Petition herein were already distributed in another Succession Cause pursuant to a Mediation Settlement Agreement that the Petition herein is therefore Res Judicata. Directions were then taken on the Prelimanary Objection and the parties agreed to canvass the same by way of Affidavits. 6. The 1st Objector then filed the Affidavit which he swore on 17/03/2025 and in which he deponed that he also swore on behalf of the 2nd Objector. He deponed that in Eldoret Chief Magistrate’s Court Succession Cause No. 256 of 2018 relating to their late brother, Wilson Kipkemboi Ngetich, the beneficiaries referred the matter to Mediation in which it was agreed that their late brother was holding 6 properties in trust for the family and the Agreement was adopted by the Court on 25/09/2021. He deponed that by the distribution adopted therein, he (1st Objector) was allocated the property, Ngeria/Kesses Block 1 (Cheptabach)/15, while the property, Ainabkoi West/ Tarakwa Block 1/(Sigilai)/111, was shared between the 1st Objector and the Petitioner. He deponed that he thereafter took possession of the property property, Ngeria/Kesses Block 1 (Cheptabach)/15, that however, the Petitioner secretly and without the Objectors’ consent, filed the instant Succession Cause after their mother died and chose to ignore what had been adopted as aforesaid, that in the Summons of Confirmation of Grant that the Petitioner has filed, she has given the property, Ngeria/Kesses Block 1 (Cheptabach)/15, to other beneficiaries contrary to the Mediation Settlement Agreement. He also deponed that in this Cause, the Petitioner has once more listed the name of their said late brother, yet in the Mediation Agreement, their late brother’s wife was allocated a shares in 3 properties. He then presented his own proposed mode of distribution which he deponed is in accordance with the Mediation Agreement, which the Petitioner was a party to 7. In response, the Petitioner relied on the Replying Affidavit which she swore on24/03/2025. She deponed that the Mediation Settlement Agreement referred to by the Objectors is null and void as the properties distributed did not belong to their late brother, Wilson Kipkemboi Ngetich, but to their late mother, Christine Tapchumo Maiyo. She also deponed that the estate in issue in the Mediation was that of their late brother, and not their father’s, and that the estates could not be dealt with in one Cause. According to her, the Preliminary Objection should be dismissed on the above grounds. Determination 8. The issue arising for determination herein is evidently; “whether this Court can proceed to distribute the estate in this Cause when there are claims that the same properties listed herein, although registered in the name of the deceased herein, were already distributed in an earlier Succession Cause before the Magistrate’s Court relating to the estate of a son of the deceased.” 9. It is not in dispute that the Petitioner is a sister to the Objectors (her brothers) and that the 4th sibling, the late Wilson Kipkemboi Ngetich, was their deceased brother, who was survived by a widow. The 1st Objector has deponed that the properties listed by the Petitioner for distribution in this Cause were already distributed in an earlier Succession Cause in respect to the estate of their said late brother, namely, Eldoret Chief Magistrate’s Court Succession Cause No. 256 of 2018 pursuant to a Mediation Settlement Agreement adopted therein, and to which the Petitiner was a party. The Objectors have also urged that in the Mediation Settlement Agreement, all family property was agreed to have been held by their said late brother, Wilson Kipkemboi Ngetich, on behalf of the rest of the family. What has been https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/13873/eng@2025-08-01 2

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exhibited is only the Court Order adopting the Mediation Settlement Agreement, and the Agreement itself showing the signatories thereto has not been exhibited. I am not therefore in a position to veriufy whether indeed the Petitioner was indeed a party to the Agreement. I however note that the Petitioner has not denied the averments above. In the circumstances, I presume the averments to be correct and that she was a party to the Agreement. 10. In the Chief Magistrate’s Court Order exhibited, dated 20/09/2021, I note that the properties listed therein for distribution are described as the following: Plot No. 5 Ngeria/Kesses Block 1 19 acres Plot No. 10 Bindura Settlement Scheme 5 acres Plot No. 14 Bindura Settlement Scheme 5 acres Plot No. 15 Bindura Settlement Scheme 5 acres Chebtabach Plot No. 15 15 acres Sigilai Plot No. 111 Scheme Not disclosed 11. The Certificate of Confirmation of Grant issued pursuant to the said Order, if any, has also not been exhibited, and I cannot therefore verify the proper legal descriptions of the properties. 12. The 1st Objector has however broken down the mode of distribution adopted and in doing so, has described the properties in the following manner: 13. 14. Plot No. 5 Ngeria/Kesses Block 1 15 acres Plot No. 10 Bindura Settlement Scheme 5 acres Bindura Settlement Scheme Plot No. 14 5 acres Plot No. 15 Bindura Settlement Scheme 5 acres Chebtabach Plot No. 15 15 acres Ainabkoi West/Tarakwa Block 1(Sigilai)/111 9 acres In comparison, the properties listed by the Petitioner in her Summons for Confirmation in this instant Cause are only 2, as follows: Ainabkoi West/Tarakwa Block 1(Sigilai) 111 9 acres Ngeria/Kesses Block 1(Cheptabach)15 15.5 acres It is therefore clear that the 2 properties presented to this Court for distribution, under the Summons for Confirmation filed herein were part of those already distributed in Eldoret Chief Magistrate’s https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/13873/eng@2025-08-01 3

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Court Succession Cause No. 256 of 2018, pursuant to a Mediation Settlement Agreement. As aforesaid, the Petitioner has not denied this fact. As furthere stated, I do not know whether a Certificate of Confirmation of Grant was extracted pursuant to the adoption by the Court of the Mediation Settlement Agreement as none has been exhibited. Nonetheless, as long as the Magistrate’s Court order adopting the Mediation Settlement Agreement has not been set aside or vacated, it remains a valid, lawful and binding order of the Court, and this Court, being a custodian of the law, cannot just ignore. Holding otherwise would be encouraging anarchy and a state of lawlessness, and would go against the principle of the sacrosanctity of Court orders. 15. The Petitioner has argued that that the properties are, and have always, at all times, been registered in the name of the deceased herein (their father), including at the time of the filing and conclusion of Eldoret Chief Magistrate’s Court Succession Cause No. 256 of 2018. She argued that the properties counld not have therefore been dealt with or distributed in Eldoret Chief Magistrate’s Court Succession Cause No. 256 of 2018, which was a Cause dealing with the estate of their late brother, Wilson Ngetich, a different person from the deceased herein, who was the registered owner. 16. According to the Petitioner therefore, the adoption of the Mediation Settlement Agreement in Eldoret Chief Magistrate’s Court Succession Cause No. 256 of 2018, insofar as it included the above properties, was null and void and should not be upheld by this Court. 17. What I find curious in the Petitioner’s argument, as she does not deny knowledge of the adoption of the Mediation Settlement Agreement by the Court in Eldoret Chief Magistrate’s Court Succession Cause No. 256 of 2018, if she has always held the view that orders made in the said Cause were or are null and void, why then has she has never gone back to that same Court to apply for review or setting aside or vacating of the Court order on the grounds she is now raising before this Court? 18. The Petitioner does not also address the Objectors’ claims that the basis of dealing with their father’s properties in their late brother’s estate Succession Cause was that it was mutually agreed at the Mediaion that the their late brother was holding the properties in trust for the rest of the family. 19. Further, with the knowledge of the orders adopted in Eldoret Chief Magistrate’s Court Succession Cause No. 256 of 2018, the Petitioner can be accused of deliberate material non-disclosure as she omitted to disclose, at the time of filing the Petition herein, that the properties she had listed in the inventory were already distributed in Eldoret Chief Magistrate’s Court Succession Cause No. 256 of 2018. To this extent, she does not come out as a truthful or credible litigant acting “with clean hands”, as she can be accused of having deliberately misled the Court. Even if she did not agree with the adoption of the Mediation Settlement Agreement in Eldoret Chief Magistrate’s Court Succession Cause No. 256 of 2018, she still had the duty to disclose to this Court the correct status and then leave the Court to deal with the issue arising therefrom, or move the Court accordingly. 20. Be that as it may, as long as the properties presented to this Court for distribution remain the same that were already distributed in Eldoret Chief Magistrate’s Court Succession Cause No. 256 of 2018, this Court cannot close its eyes to that fact and purport to again distribute the same properties in this Cause. Until and unless the order made in Eldoret Chief Magistrate’s Court Succession Cause No. 256 of 2018 is set aside, or vacated, it remains a lawful and valid Court order binding upon all. Whether or not the distribution of the subject properties in Eldoret Chief Magistrate’s Court Succession Cause No. 256 of 2018 was or is null and void is a declaration that this Court cannot procedurally make suo motu in this Cause when it is not sitting as an appellate Court on the issue. Final Orders 21. In premises, I order and rule as follows: https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/13873/eng@2025-08-01 4

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i. It is hereby declared that as long as the mode of distribution adopted by the Court in Eldoret Chief Magistrate’s Court Succession Cause No. 256 of 2018 has not been set aside or vacated, this Court cannot purport to again distributre the same properties distributed in the said Cause in a manner that is different from or in conflict with, the mode of distribution adopted in Eldoret Chief Magistrate’s Court Succession Cause No. 256 of 2018. ii. The Objector’s Preliminary Objection dated 10/03/2025 is hereby upheld. iii. The Summons for Confirmation of Grant dated 21/06/2024 is hereby struck out. iv. The Petitioner is at liberty, within a period of sixty (60) days, to file a fresh Summons for Confirmation, excluding the properties already distributed as aforesaid. Should there be no such fresh Summons filed within the timeline given, this file shall stand closed upon expiry thereof. v. As this is a family matter, I make no order on costs. DELIVERED, DATED AND SIGNED AT ELDORET THIS 1ST DAY OF AUGUST 2025. …………………….. WANANDA J. R. ANURO JUDGE Delivered in the presence of: Ms. Oduor for the Petitioner N/A for the 1st Objector Mr. Ego for the 2nd Objector Court Assistant: Brian Kimathi https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/13873/eng@2025-08-01 5

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