Kimoi Kipchumba & 1 other v Josephine Kipchumba & 1 other

filing of the Petition was never sought or obtained, and also that they were the proper persons to apply for the Grant. The Objectors presented the same list of survivors as that presented in the Petition save for the 1st Petitioner, Kimoi Kipchumba, who was excluded. 4. The 1st Petitioner, in response, generally denied the above allegations by way of the Affidavit sworn on 13/04/2013 as his Answer to the Cross-Petition, and also by way of the Affidavit he swore on 6/02/2013 as his Reply to the Objection Proceedings. Both these Affidavits were filed through Messrs Chemwok & Co. Advocates. 5. A Replying Affidavit sworn by one Samuel Kipchumba, who described herself as a son of the 1st Petitioner was also filed, and which basically also denied the allegations made by the Objectors. He also exhibited a copy of alleged minutes of a family meeting, which, he deponed, gave him the authority to manage the estate of the deceased, his father. 6. The matter was then directed to proceed to viva voce trial, upon which the parties filed Witness Statements and documents. The trial was then conducted and a Judgment delivered on 10/03/2022 by Ogola J. In the Judgment, the challenges raised by the Objectors were found to be meritorious and the 2nd Petitioner, Kimoi Kipchumba, was found not to be a wife of the deceased there being no evidence that any customary marriage had been conducted as alleged, and also by her having separated from the deceased. She was therefore barred from inheriting from the estate of the deceased as a beneficiary. The Court also found the Petition untenable as the consent of all survivors was never sought or obtained before its filing. The parties were, as a consequence, directed to propose Administrators afresh. 7. It is thereafter that I took over the matter, and after a “pull-and-shove” between the parties, and considerable dilly-dallying by the Objectors in proposing a co-Administrator, I appointed the Petitioner’s nominated Administrator on 19/10/2023, namely, Samuel Kipchumba as the interim Administrator, (later as the 2nd Administrator). Eventually, with the Objectors still delaying to nominate their proposed co-Administrator, on 30/10/2024, I appointed the 2nd Objector, Thomas Kipchumba, to be the 2nd Administrator, and thereafter, a Grant of Letters of Administration was issued in accordance therewith. On the same date, to expedite the matter, I directed the Objectors, represented by Ms. Chumba, to file Summons for Confirmation for distribution of the estate by the Court. There was however compliance with this order as the Objectors never filed such Summons. It however later transpired that Mr. Chemwok, had already filed an Application seeking distribution of the estate. 8. The above is therefore the background to the instant Application the subject of this Ruling. It is the Notice of Motion dated 8/02/2024 filed by the 2nd Administrator, Samuel Kipchumba, through Messrs Chemwok & Co. Advocates. The same seeks orders as follows: i. That distribution be done according to the schedule accompanying this application. ii. That the distribution be done by the Interim Administrator, Samuel Kipchumba. 9. The Application is supported by the Affidavit sworn by the 2nd Administrator, Samuel Kipchumba. He proposed distribution of the said sole parcel of land forming the estate, Sambirir/Sambirir/231, at 5 acres for each for 6 beneficiaries, whom he listed as Tula Kipchumba (2nd Petitioner), Samuel Kipchumba (himself), Benjamin Kipchumba, Thomas Kipchumba (1st Administrator), Anna Kipchumba, and Josephine Kipchumba. 10. The Application is opposed by way of the Replying Affidavit sworn by the 2nd Administrator, Thomas Kipchumba, filed through Messrs J.C. Chumba & Co. Advocates. The 2nd Administrator deponed that the Objection proceedings in this matter were concluded by the said Judgment rendered by Ogola J on https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/3665/eng@2026-03-18 2

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10/03/2023, in which the Court held that the 1st Administrator’s mother, Kimoi Kipchumba was not a wife to the deceased, and ordered the beneficiaries to propose new Administrators for appointment. He contended that, however, the 2nd Administrator, Samuel Kipchumba, misled Adjudication Offices at Maina Marakwet and got away with more than half the parcels of the deceased’s land under the pretext that he was inheriting his mother’s share, thus locking out other beneficiaries. He deponed that as a result, the 1st Administrator got 14 parcels of land transferred into his name, and the rest of the brothers were given 6 and 4 parcels, and his mother and sisters were not given anything. He asserted that the 2nd Administrator, while acquiring the 14 parcels of land, invoked Marakwet customary law under the the pretext that his mother was married to the deceased father, but when it came to land belonging to his mother, he abandoned the Marakwet customary law and wants to rely on Succession law to acquire more. He contended that the 2nd Administrator’s proposed mode of distribution is not genuine because he already has half share of their father’s property in Maina Adjudication, a total 50 acres, whereas he (1st Administrator) and his brother share only 15 acres. He contended further that the Application is premature as no Grant of Letters of Administration has been issued, and no Application for Confirmation of Grant has been made. He stated that the proper procedure is to first, appoint Administrators, and thereafter, file an Application for Confirmation of Grant, during whose hearing, the beneficiaries participate and any person wishing to oppose the proposed mode of distribution may file an Affidavit of Protest. 11. A second Replying Affidavit opposing the Application was also sworn by Anna Jepkorir Kipchumba, apparently acting in person. She deponed that she is the daughter and beneficiary of the deceased and described the instant Application as premature. She contended that not the entire larger family of the deceased was actively involved in the meetings or these proceedings or the meetings held in respect thereto, and, as a consequence, some on the verge of being disinherited. She stated that she has not been involved in these proceedings due to a long illness and that none of her brothers, including the parties herein, informed her of these proceedings, but instead, concealed the process with the motive of acquiring larger portions of the estate and disinheriting her. She stated that her main contention is that the family has never had an opportunity to sit down and discuss the issue of distribution, and that the same can only be dealt with once a proper Administrator has been appointed in accordance with a family agreement. She asserted that Tula Kipchumba, the 2nd Petitioner, ought to be one of the Administrators as she is the only widow of the deceased thus ranking highest in the priority of eligible Administrators. She also contended that the mode of distribution proposed by the 2nd Administrator is unfair as he has already allocated to himself their father’s land in Keiyo and that it would therefore be unfair for the 2nd Administrator to acquire an equal share of the remaining property. She urged that the process of distribution ought to begin afresh and the estate properties, including the Keiyo and Mossop land, be distributed afresh. 12. The 2nd Administrator-Applicant, Samuel Kipchumba, then swore the Further Affidavit sworn on 13/03/2025 in which he deponed that the only property in issue in this Succession Cause is the parcel of land as Sambirir/Sambirir/231 measuring 30 acres. 13. The Application was then canvassed by way of written Submissions. The 2nd AdministratorApplicant’s, and the 2nd Petitioner’s Submissions is dated 14/08/2025, while the 2nd Objector’s is dated 31/07/2024. The said Annah Jepkorir Kipchumba, also filed the Submissions dated 25/03/2025. 2 nd Administrator-Applicant’s and 2 nd Petitioner’s Submissions 14. Mr. Chemwok, Counsel for both the 2nd Administrator-Applicant and the 2nd Petitioner, basically submitted that their proposal is for the property to be shared equally by allocating 5 acres to each beneficiary in accordance with Section 29 of the Law of Succession Act. He submitted that the 1st https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/3665/eng@2026-03-18 3

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Administrator introduced an unsubstantiated claim of 14 additional parcels allegedly forming part of the deceased’s estate, however no documentary evidence of ownership of these other properties by the deceased was presented. 1 st Administrator’s Submissions 15. Ms. Chumba, Counsel for the 1st Administrator (2nd Objector), and also 1st for the 1st Objector, submitted that the Application is defective in that it is premised on wrong provisions of the law which does not provide for distribution of the estate of the deceased. She pointed out that the Application is brought under Section 29 of the Law of Succession, which deals with issues concerning “dependency” and identification of beneficiaries, which has already been concluded in the Judgement delivered herein. She stated that the Application ought to be based on Section 71 of the Act, and should be by way of Summons, not Notice of Motion. She then contended that even if the issue of format of the Application were to be ignored, still the Application is premature, as it was filed prior to obtaining Grant of Letters of Administration, and this is the reason why the 2nd Administrator-Applicant identifies himself as an “interim Administrator”, yet there can be no interim Administrator in the Law of Succession. She then however acknowledged that indeed, a Grant of Letters of Administration was issued to the 1st and 2nd Administrators, but contended that the same was issued on 6/05/2024, after the instant Application had already been filed on 28/02/2024, hence it cannot be considered to be Summons for Confirmation of Grant. 16. Regarding the issue of mode of distribution, Counsel submitted that given the background of this matter, the distribution proposed by the 2nd Administrator is self-centred and unjust, and reiterated that the 2nd Administrator has already been provided for more than any other member of the family as he has inherited more than half the estate of the deceased under Land Adjudication by using deceitful means. She submitted that he 2nd Administrator used the nullified Grant of Letters of Administration to mislead the Settlement and Land Adjudication Officers that the deceased had married two wives and that he (2nd Administrator) was entitled to half the share of the estate on behalf of his mother, and that although this Court had already rendered its Judgement declaring that the 2nd Administrator’s mother, Kimoi Kipchumba (2nd Petitioner), was not a wife to the deceased, the Applicant did not return the properties he had been given under that mistake. She asserted that the deceased’s properties that were still under Land Adjudication were distributed directly to the beneficiaries, and thereafter, title deeds issued to individuals according to Marakwet customary law, which requires sharing out the property of a deceased person according to the number of houses. She pointed out that the Law of Succession recognizes gifts or inheritance given during the lifetime of a deceased person and in cases where customary law was applied and only sons of the deceased received their inheritance. She argued that the Marakwet customary law does not “recognize” women, and as such, the widow and the daughters of the deceased were left out from inheritance of ancestral lands. She cited Section 42 of the Law of Succession Act. 17. Counsel further submitted that the property Sambirir/Sambirir/231 measuring 14.0 Hectares (34.58 acres), was now the only estate property remaining for distribution, is in fact, the matrimonial home of the widow of the deceased and according to the Law of Succession, the wife of the deceased has a life interest unless the deceased was a polygamist, which was not the case in this matter. Counsel observed that in the instant case, although the deceased was married to just one wife, the 2nd AdministratorApplicant was borne by a different mother who was not married to the deceased, and it would therefore be necessary for a larger share to be given to the widow and her daughters who did not receive any share of the properties at Lower Maina, Elgeyo Marakwet. She thus proposed the following mode of distribution, which she described as fair just and equitable: https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/3665/eng@2026-03-18 4

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i) Tula Kipchumba Petitioner) Josephine Objector) Kipchumba (1st Anna Jerotich Kipchumba 18. 14.58 acres 5.50 acres 5.50 acres Thomas Kipchumba Administrator) (1st 5.50 acres Samuel Kipchumba Administrator (2nd 5.50 acres Benjamin Kipchumba (2nd 50. acres Counsel also disagreed with the proposal made by Annah Jerotich Kipchumba that the widow of the deceased be made an Administrator, as she pointed out that two Administrators have already been appointed by the Court, and it will be unnecessary to increase them. On the issue of costs, she submitted that this being a Succession Cause, it is fair and just that each party bears his/her own costs. Submissions by Annah Jepkorir Kipchumba 19. Annah Jepkorir Kipchumba, although she did not apply to be formally admitted or recognized in this matter as a party, nonetheless filed Submissions. She however, perhaps because of being a lay person not conversant with the role of Submissions, simply copy-pasted the same contents of her already recounted Replying Affidavit, including repeating that she has never been involved in these proceedings as she was ailing, that she was never notified of these proceedings or of any meetings in relation thereto, and that, as a daughter of the deceased, she is entitled to participate herein. She also repeated her statements that the 2nd Petitioner, being the widow of the deceased, is the right person to be appointed an Administrator perhaps alongside one of their brothers as co-Administrator. Regarding the mode of distribution proposed by the 2nd Administrator-Applicant, she repeated that it does not take into account the fact the 1st and the 2nd Administrators have already allocated themselves the deceased’s property in Keiyo. Determination 20. The 1st Administrator and the said Anna Jepkorir Kipchumba have raised issues seemingly challenging the appointment of Administrators, at some point, appearing to not even be aware that Administrators had already long been appointed and a Grant of Letters of Administration issued. Since no Application for revocation of the Grant has been filed herein, the parties ought to be aware that this Court, unless formally moved, cannot re-open or revisit the issue of the already concluded appointment of Administrators. That is now water under the bridge. 21. In view thereof, I find the issues arising for determination in this matter to be the following: i. Whether the Application is fatally defective for being premised under wrong provisions the law. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/3665/eng@2026-03-18 5

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ii. Whether the Court should proceed to distribute the estate herein in the absence of a formal Summons of Confirmation of Grant filed, and if so, how should the estate be distributed? 22. As correctly pointed out by Ms. Chumba, there is no question that the Application has been brought under the wrong provisions of the law. Section 29 of the Law of Succession Act which is the relied upon, deals with the different issue of “dependancy” and “dependants” to an estate, which is not in issue herein. Since what the Application basically seeks is distribution of the estate by way of Confirmation of the Grant, the provision that ought to have been invoked is Section 71 of the Law of Succession Act. The question is therefore whether the Application is fatally defective for being premised under the wrong provisions the law. 23. My view is that the said defect, though I am in no way condoning it and will indeed under deserving cases, swiftly strike out the offending Application, in the circumstances of this case, is curable under the provisions of Article 159 (2) (d) of the Constitution, which requires that justice “be administered without undue regard to technicalities”. As it is often stated, “rules were made for man, not man for the rules” and, “rules are handmaids of justice not mistresses”. Rules must therefore serve the justice of the case and should not be given a pedantic interpretation which at the end of the day denies parties the justice they have come to seek. Where therefore rules or procedures become a hindrance to the Court’s obligation of rendering justice, such procedures must, in appropriate cases, give way. 24. In advancing the above position, I am also guided by the Court of Appeal decision in the case of Kenya Trypanosomiasis Research Institute vs. Anthony Kabimba Gusinjilu (Suing for and on behalf of 112 Plaintiffs) [2019] eKLR, in which the following was stated: “ Lastly, having established that the respondent’s application dated 17th December 2010 had been brought under the wrong law, we agree with the court’s finding that the irregularity was not serious enough to prevent the court from exercising its discretion, hearing and determining the said application on its merit. Taking note that the rules of procedure should be used as handmaids of justice but not to defeat it, the court weighed the issues before it and found that there would be no injustice visited on the appellant in the spirit of Article 159 (2)(d) of the Constitution and Sections 1A and B of the Civil Procedure Act.” 25. Applying the above principles, considering the prejudice already suffered by the parties due to the long delay to conclude this 15 years old Succession Cause, and weighing it against the logic of undue insistence on procedures, I choose to mitigate on the delay. It is also not lost on me that the deceased died almost 50 years ago in the year 1978. There is also no prejudice demonstrated to have been suffered by the parties as a result of the said procedural defect, and there is also no indication that any party has not understood what the Application seeks, which is, distribution of the estate by way of Confirmation of the Grant. Delaying the conclusion of this matter any further, without justifiable reasons shall clearly be an injustice against the family. I therefore decline to strike out the Application, and will, instead, admit it under the ambit of the “overriding principle” in litigation. 26. Regarding the question whether this Court should proceed to distribute the estate in the absence of a formal Summons for Confirmation of Grant, although there is no such formal Summons filed, it is evident all that the parties would have wished to state during the hearing of such Summons, whether in opposition or in support, had been it so filed, has already been presented by the parties, either at the viva voce hearing before Ogola J, and/or in the Affidavits and Submissions filed prior to that viva voce hearing, and also in the Affidavits and Submissions filed in respect to the instant Application. Apart from Administrators having already been appointed, and the beneficiaries having also already been identified, the sole property forming the estate has also been identified. What then would insisting https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/3665/eng@2026-03-18 6

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on filing of a formal Summons for Confirmation still introduce that has not already been presented or addressed? 27. Further, as already narrated, on 30/10/2024, in a bid to expedite conclusion of this matter, I directed the Objectors, to file Summons for Confirmation for distribution of the estate. As aforesaid, there was no compliance with this order. It is therefore ironic that it is the same Objectors, who failed to file the Summons as directed by the Court, are unashamedly, the same parties now purporting to complain about non-filing of such Summons. 28. I draw attention to Section 47 of the Law of Succession Act, which provides 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. 29. Rule 73 of the Probate and Administration Rules then provides as follows: “ Nothing in these Rules shall limit or otherwise affect the inherent power of the court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the court.” 30. For the said reasons, I will proceed to distribute the estate on the basis of the representations made by the parties so far, and bring this old litigation to an end, once and for all. 31. In determining the manner in which the distribution of the estate should be applied, I consider that the major contention against the mode of distribution presented by the 2nd Administrator-Applicant is that it does not take into account the fact the 2nd Administrator had already acquired ownership of the lion’s share of properties belonging to the deceased situated in Marakwet and possibly, also in Mosop. It is claimed that the 2nd Administrator acquired the properties by misleading Government officers who were undertaking Adjudication and Settlement in the locality described as Maina Marakwet, who then allocated to the 2nd Administrator about 50 acres, which is more than half of the parcels of land that belonged to the deceased, and thus, leaving the rest of the beneficiaries with a paltry 15 acres to share. 32. It is indeed true that under Section 42 of the Law of Succession Act, previous benefits given by a deceased person to a beneficiary ought to be taken into account during distribution of an estate .This principle, often referred to as "bringing into account," ensures a fair and equitable final distribution of the deceased's net estate. The provision is premised as follows: “ 42. Previous benefits to be brought into account 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 or grandchild under the provisions of section 26 or section 35 of this Act, that property shall be taken into account in determining the share of the net intestate estate finally accruing to the child, grandchild or house.” https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/3665/eng@2026-03-18 7

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33. While appreciating the above provision of law, it is clear that in this case, the property declared in the Petition as forming the estate of the deceased is one, namely, Sambirir/Sambirir/231. I have painstakingly combed through the Court file and I cannot find any single instance before the instant Application was filed, when any party seriously claimed that any previous gifts or benefits obtained by any beneficiary ought to be taken into accout. It is not in the Objection that was filed, and it was also not in the Affidavits and/or Submissions that were filed in respect to the Application. Although the issue briefly featured in passing during the viva voce trial, it was never identified by the parties as an issue for determination nor was it seriously canvassed. It never featured in the Judgment rendered by Ogola J, by which the Objection was determined. Considering that this matter has been in Cout since 2011, 15 years ago, I find it curious that it is only at this belated stage that the issue of alleged previous benefits be taken into account is the first time being raised as an issue for determination. To me, this sounds like an afterthought, and trial by ambush. 34. I also consider the roadblocks and/or acts of delays persistently placed against the progress of this matter by the Objectors represented by Ms. Chumba. For instance, as already narrated, while the orders given by Ogola J in the Judgment, that the parties propose new Administrators for appointment, was issued on 10/03/2022, and while the Petitioners promptly complied by presenting the name of the said Samuel Kipchumba (2nd Administrator), the Objector’s side, even after several reminders during Court attendances, never really presented any name. The appointment of Thomas Kipchumba (1st Administrator), was basically made by this Court suo motu on 30/10/2024, about 2 ½ years later, after the Court eventually ran out of patience with the Objectors, noting that the matter had literally stalled, and that much time had already been lost in concluding the matter as a result of the Objector’s delay to nominate their preferred co-Administrator. Even the hearing of this very Application was considerably delayed because of the Objectors’ indecisiveness on whether they wanted to oppose it or not. As a result, it was not until 16/09/2025 that the Court was eventually able to fix a date for Ruling on the Application filed way back on 1/02/2024, almost another 1 ½ years earlier. Further, as also narrated, on 30/10/2024, in a bid to expedite conclusion of this matter, I directed the Objectors, to file Summons for Confirmation for distribution of the estate. As aforesaid, there was no compliance with this order. 35. Looking at the above matters as a whole, I am constrained to form the impression that the Objectors’ tactic in this matter is to simply delay, delay, and cause more delay. The motivation for delaying the matter is unknown to me. I therefore look at the raising, at this belated stage, of the issue of previous benefits given to the 2nd Administrator, from this “delay, delay, delay” context! 36. Be that as it may, even on the merits of the contention, I find that the Objectors and the said Annah Jepkorir Kipchumba have made no effort whatsoever to prove or to even demonstrate the basis for their claim that the 2nd Administrator had already benefited by having acquired properties belonging to the deceased. Not a single supporting document was exhibited to support the claim, and the allegations were made on bare statements made in Affidavits. No evidence was presented to show that the “previous” parcels of land belonged to the deceased. In fact, most of the allegations made in the Submissions, such as the allegation that the only estate property now remaining for distribution, is in fact, the matrimonial home of the widow who has a life interest thereon, had not even been deponed in the Affidavits, and were introduced for the first time in the Submissions. As aforesaid, this matter had previously gone through viva voce trial, which was the golden opportunity for the allegation that the 2nd Administrator had already benefited from previous allocations ought to have been raised. To silently sit back and wait up to this belated stage, to raise that claim, and even so, only on Affidavit statements with no supporting document, is to expect the Court to do that which is impermissible. The issue is clearly a substantive one of fact which cannot be determined on mere Affidavit evidence, https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/3665/eng@2026-03-18 8

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particularly, in a case like herein, where no single document has been exhibited to lay a basis for the claim, and where it is being raised at this belated stage. 37. For the above reasons, I accept and adopt the 2nd Administrators proposal that the sole parcel of land available for distribution be shared out equally between the 6 beneficiaries. Final Orders 38. In conclusion, I rule and order as follows: i. ii. The parcel of land known as Sambirir/Sambirir/231 measuring approximately 14.00 hectares (approximately 34.595 acres), the sole property forming the estate of the deceased herein, be and is hereby distributed equally amongst the 6 beneficiaries, in the following manner: Tula Kipchumba (2nd Petitioner) 7658. hectares Josephine Kipchumba (1st Objector) 5.7658 hectares Anna Jerotich Kipchumba 5.7658 hectares Thomas Kipchumba (2nd Objector - 1st Administrator) 5.7658 hectares Samuel Kipchumba (2nd Administrator) 5.7658 hectares Benjamin Kipchumba 7658. hectares As this is a family matter, each party shall bear his/her own costs of these proceedings. DELIVERED, DATED AND SIGNED AT ELDORET THIS 18 TH DAY OF MARCH 2026 …………… ..…….. WANANDA JOHN R. ANURO JUDGE Delivered in the presence of: Mr. Lihanda h/b for Mr. Chemwok for the 2nd Administrator-Applicant, and also for the 2nd Petitioner. N/A for the 1st Administrator (2nd Objector), and also 1st for the 1st Objector Court Assistant: Brian Kimathi https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/3665/eng@2026-03-18 9

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