REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT BOMET
SUCCESSION CAUSE NO. 40 OF 2018
IN THE MATTER OF THE ESTATE OF SITONIK ARAP TESOT (DECEASED)
JACOB SALIM SITONIK ……………………...…………..PETITIONER
VERSUS
KIMUTAI ARAP TESOT ………………………….….….. 1ST OBJECTOR
WILLIAM KIPLANGAT SITONIK ……………..….…… 2ND OBJECTOR
KIPNGENO KUGO SITONI ……………………………… 3RD OBJECTOR
REUBEN KIPKOECH KATAM …………………………. 4TH OBJECTOR
WELDON KIPLANGAT KIRUI …………………………. 5TH OBJECTOR
LEONARD KIPYEGON KIRUI …………………………. 6TH OBJECTOR
RULING
1. In this matter, the Grant dated 13th November 2018 was issued to Tapkigen Chebii Tesot (deceased). Upon the Petitioner’s death, her name was substituted with the present Petitioner, Jacob Salim Sitonik.
2. The deceased’s estate comprised of KERICHO/KYOGONG/125, 128, 136, 149 and 334.
3. What is before me is to determine the distribution of the deceased’s estate.
Petitioner’s written submissions
4. Through his written submissions dated 15th April 2025, the Petitioner submitted that the parties had agreed on the distribution of the all parcels of the deceased’s estate except KERICHO/KYOGONG/334 which measured approximately 26 acres. That the Petitioner and his siblings were only interested to have 7 acres transmitted to the Petitioner to hold in trust for his siblings being Samwel Sitonik, Anna Chepngeno, Richard Sitonik, Philip Sitonik, Kipngeno Sitonik, Evelyn Chepkemoi, Eliud Sitonik, Charles Sitonik and Leonard Sitonik.
5. It was the Petitioner’s submission that the remaining 19 acres be transmitted to Kimutai Sitonik to hold in trust for his siblings being Tapnyebi Kures, Obot Cheres, William Sitonik Kiplangat, Peter Kugo Sitonik, Ludia Chebojok, Neria Sitonik and Chelangat Esther.
Objectors’ written submissions
6. Through their written submissions dated 23rd April 2026, the Objectors submitted that the Objectors were from the 2nd household while the Petitioner was from the 1st household. The Objectors further submitted that the parcels of land in contention were KERICHO/KYOGONG/128 and 334.
7. It was the Objectors’ submission that KERICHO/KYOGONG/ 128 measured 8 acres while KERICHO/KYOGONG/334 measured 26 acres. That the deceased settled the beneficiaries during his lifetime. It was the Objectors’ further submission that the late Petitioner had stated in a meeting held on 15th August 2015 that 12 acres of KERICHO/KYOGONG/334 had been sold and transferred to purchase KERICHO/KYOGONG/149 and settled the 2nd household.
8. The Objectors submitted that most of KERICHO/KYOGONG/128 was swampy, therefore granting 1 acre to the 2nd household would be unfair. That they had been residing on KERICHO/KYOGONG/334 from 1966 to date and had done various developments therefore subdividing it as suggested by the Petitioner would cause irreparable damage.
9. It was the Objectors’ proposal that KERICHO/KYOGONG/128 be subdivided between Reuben Kipkoech Katam (7.6 acres), Weldon Kiplangat Kirui (0.2 acres) and Leaonard Kipyegon Kirui (0.2 acres). That KERICHO/KYOGONG/334 be distributed between Kimutai Arap Tesot (13 acres), William Kiplangat Sitonik (7.8 acres) and Kipngeno Kugo Sitonik (5.2 acres).
10. The Objectors submitted that their proposal was based on the current settlement of the beneficiaries on the said parcels of land.
11. I have gone through the entire court record, the Petitioner’s written submissions dated 15th April 2025 and the Objectors’ written submissions dated 23rd April 2026. The only issue for my determination was to determine the just mode of distribution for KERICHO/KYOGONG/128 and KERICHO/KYOGONG/334.
12. It is salient to note that the Petitioner submitted that KERICHO/KYOGONG/128 was not in contention but the Objectors submitted that it was under contention. In my view, the failure of convergence on the issue was sufficient for it to be a dispute. The Objectors proposed that it be distributed between Reuben Kipkoech Katam (7.6 acres), Weldon Kiplangat Kirui (0.2 acres) and Leaonard Kipyegon Kirui (0.2 acres).
13. The law contemplates equal sharing of inheritance among the beneficiaries irrespective of any circumstances. Equality is guaranteed even in a scenario where the deceased left behind children but no spouse. Section 38 of the Law of Succession Act provides: -
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.
14. The Court of Appeal in M’Murithi v Murithi [2015] KECA 347 (KLR) held: -
“……..Section 38 enshrines the principle of equal distribution of the net intestate estate to the surviving children of the deceased irrespective of gender and whether married and comfortable in their marriage or unmarried…….”
15. Similarly, the court in Re Estate of John Musambayi Katumanga – (Deceased) [2014] KEHC 7506 (KLR) held as follows: -
“The spirit of Part V, especially Sections 35, 38 and 40, is equal distribution, of the intestate estate amongst the children of the deceased. There have been debates on whether the distribution should be equal or equitable. My reading of these provisions is that they envisage equal distribution for the word used in Sections 35(5) and 38 is “equally” as opposed to “equitably”. This is the plain language of the provisions. The provisions are in mandatory terms – the property “shall … be equally divided among the surviving children.” Equal distribution is envisaged regardless of the ages, gender and financial status of the children.”
16. It is clear from the above that the deceased’s estate should be shared equally among the deceased’s beneficiaries. In the present case, the evidence on record indicated that Titles which emanated from KERICHO/KYOGONG/128 were cancelled and revered to the mother title (KERICHO/KYOGONG/128) in the deceased’s name. This meant that KERICHO/KYOGONG/128 was free to distribute as previous actions or transactions on the said parcel had been invalidated.
17. It is my finding therefore that KERICHO/KYOGONG/128 be distributed equally among the two households.
18. In regards to KERICHO/KYOGONG/334, the Petitioner proposed that 7 acres be transmitted to him to hold in trust for his siblings (2nd household) while the remaining 19 acres be transmitted to the Objectors (1st household). On the other hand, the Objectors submitted that they had resided on the said parcel for over 60 years and proposed that the said parcel be distributed between Kimutai Arap Tesot (13 acres), William Kiplangat Sitonik (7.8 acres) and Kipngeno Kugo Sitonik (5.2 acres) all from the 1st household.
19. I concur with Mumbi Ngugi J. (as she then was) in Cecilia Chepkemoi Sangutet v Kiplangat Arap Tonui [2018] KEHC 7829 (KLR), where she held: -
“The law is that if a deceased person had distributed his or her property in his lifetime, such distribution should be respected……
………… However, such wishes must be demonstrably clear, and can only be so through oral or documentary evidence adduced before the court.” (Emphasis mine)
20. From the record, there was no evidence that members from the 1st household had resided on KERICHO/KYOGONG/334 for over 60 years. In prosecuting their case, the Objectors stated that the evidence that they had resided on the said parcel was when the deceased Petitioner stated in a meeting held on 15th August 2015 that 12 acres of KERICHO/KYOGONG/334 had been sold and transferred to purchase KERICHO/KYOGONG/149 and settled the 2nd household.
21. It is salient to note that on 4th June 2024, this court cancelled the Titles emanating from KERICHO/KYOGONG/334 were cancelled and revered to the mother title (KERICHO/KYOGONG/334) in the deceased’s name. This meant that KERICHO/KYOGONG/334 was free to distribute as previous actions or transactions on the said parcel had been invalidated.
22. Flowing from the above, I find no evidence to support either proposal from the Petitioner and the Objectors in regard to the parcel KERICHO/KYOGONG/334. It is therefore my finding that KERICHO/KYOGONG/334 be shared equally among the two households.
23. In the end, I direct that KERICHO/KYOGONG/128 and KERICHO/KYOGONG/334 be divided equally among the two households.
Ruling delivered, dated and signed at Bomet this 27th day of October, 2026.
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HON. JULIUS K. NG’ARNG’AR
JUDGE
Ruling delivered in the presence of:
Siele/Susan (Court Assistants)
Ogari for the Petitioner
N/A for Kenduiywo for the Objector
Source: Supplied judgment file.