In re Estate of Erman Bundotich Arap Cheptoo (Deceased) [2022] eKLR

Key Facts

Deceased Name

Issues

• The court must determine if Ezekiel, who had inherited his father Erman's land but did not complete formal succession, had the legal authority to subdivide the land among his children before a grant was issued. Petitioners argue that Ezekiel had no such authority, while objectors claim he acted on his wishes.
• The court considered the distribution method for Erman's estate, with petitioners advocating for equal shares among all grandchildren under Section 38 of the Law of Succession Act, and objectors proposing unequal shares, particularly for those with the graveyard parcel. The court rejected the unequal distribution as discriminatory.

Holdings

• The court determined that Ezekiel had no legal authority to distribute the estate of Erman before the court confirmed the grant. The court emphasized that no person may deal with a deceased's estate without court sanction, as per sections 45 and 82 of the Law of Succession Act.
• The court approved the equal distribution of Erman's estate among all his grandchildren, rejecting the objectors' proposal for unequal shares. This aligns with Section 38 of the Law of Succession Act, which mandates equal division among surviving children unless specific exceptions apply.
• The court rejected the objectors' argument that married daughters should receive lesser shares, affirming that all grandchildren are entitled to equal shares regardless of marital status. This decision aligns with the principle that discrimination in inheritance based on marital status is unlawful.

Remedies

• The summons for confirmation of grant is allowed, and the grant dated 18th March 2019 is confirmed in the terms of the summons for the estate of Erman Bundotich Arap Cheptoo.
• The parties are directed to meet their own costs of the proceedings in the succession cause.

Will Type

Probate Status

Legal Principles

• The court upheld the equal distribution of an intestate estate among surviving grandchildren under Section 38 of the Law of Succession Act, as the grandchildren's father (the sole heir) was deceased. Discriminatory distribution based on marital status was rejected as violating the statute.
• The court applied the principle that no person may deal with the free property of a deceased person without court sanction under Sections 45 and 82 of the Law of Succession Act. It emphasized that succession proceedings must be conducted to legally authorize estate distribution, even if there is a single surviving heir. This prevents unlawful intermeddling and preserves the estate until beneficiaries are identified.

Succession Regime

Precedent Name

• Jane Kagige Geoffrey & another v Wallace Ireri Njeru & 2 others
• Stephen Gitonga M'murithi v Faith Ngira Murithi
• Re Estate of Wahome Njoki Wakagoto
• Morris Mwiti Mburugu v Denis Kimanthi M'Mburugu
• In the Matter of the estate of Veronica Njoki Wakagoto (Deceased)
• Elizabeth Wairimu & 2 others v Wilfred Njogu Mbuthia & 2 others
• Re Estate of Phylis Muthoni M'Inoti (deceased)
• Re Estate of Gedion Manthi Nzioka (deceased)

Executor Name

• Agnes Bundotich (2nd Petitioner/2nd Respondent)
• Susan Bundotich (1st Petitioner/1st Respondent)

Cited Statute

Executor Appointment

Judge Name

Passage Text

• The only time grandchildren inherit directly from their grandparents is when the grandchildren's own parents are dead. The grandchildren step into the shoes of their parents and take directly the share that ought to have gone to the said parents.
• Agreeing with the objectors that the grandsons of Erman should get bigger shares than the granddaughters will amount to discriminating against the granddaughters without any justifiable reason.
• I am persuaded by the cited decisions that no person, may he be a beneficiary or not, has the authority to deal with an estate of a deceased person before being allowed by the court to do so through succession proceedings.

Beneficiary Classes