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MagistrateAllowedNot stated in the judgment

In re Estate of Nasimiyu alias Clare Nasimiyu Wafula (Deceased) (Succession Cause E399 of 2024) [2026] KEMC 583 (KLR)

Senior Resident Magistrate's Court at Bungoma
6 August 2026
TOT.O. Omono
1,652 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Bungoma court confirmed a deceased family's estate for equal division after a surveyor's unchallenged evidence proved the land, ruling that written arguments alone cannot disprove expert evidence.

What this practically means

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Executive summary

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This ruling by the Senior Resident Magistrate's Court at Bungoma (T.O. Omono, SRM) arises from a succession cause in which the court, by a judgment delivered on 17th February 2026, had required the Land Registrar Bungoma and the Bungoma County Land Surveyor to shed light on the identity and location of the deceased's two acres hived from land parcel E.Bukusu/N.Kanduyi/318. A ruling of 7th May 2026 directed the surveyor to attend for cross-examination on his survey report and to avail original searches. Mr. Brian Wafula Kubwa of the Bungoma County Survey Office testified on 2nd July 2026 that his survey established that the deceased occupied parcels E. Bukusu/N. Kanduyi/10353 (0.15 ha), 10358 (0.53 ha) and 10686 (0.36 ha), totalling 1.04 hectares available for distribution; summons to the survey were served on all parties, but the 2nd Petitioner/Protester failed to attend. The court framed a single issue: whether Mr. Kubwa's evidence confirmed the existence and acreage of the deceased's parcels. Applying authorities on expert evidence, it held that an expert report can only be impeached by another expert's report or valid reasons, and that written submissions are not evidence. The surveyor's unshaken and uncontradicted evidence proved the parcels and their acreage on a balance of probabilities. The grant issued on 27th January 2025 was confirmed, with the three parcels to be shared equally among the four beneficiaries, and each party bearing their own costs as a family dispute.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the evidence adduced by Mr. Kubwa confirmed the existence and the acreage of the deceased's parcels of land for distribution among the deceased's dependents

Key legal issues

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01

Whether the unimpeached expert survey evidence proved the existence and acreage of the deceased's land for distribution

Holding

Yes - the expert evidence of Mr. Kubwa remained unshaken on cross-examination, was not contradicted by other expert evidence, and proved the parcels and their acreage on a balance of probabilities

Reasoning

The court held that expert evidence deserves appropriate weight and can only be impeached by another expert's report or valid reasons. The 2nd Petitioner/Protester attempted to challenge the surveyor's report only through written submissions, which are not evidence. After cross-examination the surveyor's evidence that the deceased occupied parcels measuring 0.15, 0.53 and 0.36 hectares (1.04 hectares total) stood uncontradicted, so it proved the existence and acreage of the land on a balance of probabilities.

p. 5

Legal principles established

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  • An expert report must be given due respect and can only be impeached through another expert's report or valid reasons for the court to disregard it
  • Written submissions do not constitute evidence and cannot take the place of evidence

Court orders

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  1. 1.The Grant of Letters of Administration intestate issued to the Petitioners on 27th January 2025 is confirmed
  2. 2.The deceased's parcels of land numbers E. Bukusu/N. Kanduyi/10353, E.Bukusu/N.Kanduyi/10358 and E.Bukusu/N.Kanduyi/10686 cumulatively measuring 1.04 hectares be shared equally among Maurice Nyongesa Wafula, Protas Sitati Wafula, Margaret Nanjala Makhanu and Electina Nekesa Wafula unless either of them renounces their share or they agree on a different mode of distribution
  3. 3.Each party to bear their own costs, this being a family dispute

The bench

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One judgment of the whole court — no separate or dissenting opinions.

TO
majority

Wrote the judgment

Jurisdiction invoked
Succession cause before the magistrates' court pursuant to its jurisdiction over intestate estates (Law of Succession Act); specific provision not cited in the judgment

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

Given the reasons above, the Grant of Letters of Administration intestate herein issued to the Petitioners on 27th January 2025 is confirmed in the following terms
p. 5disposition - confirmation of grant
The deceased's parcels of land numbers E. Bukusu/N. Kanduyi/10353, E.Bukusu/N.Kanduyi/10358 and E.Bukusu/N.Kanduyi/10686 cumulatively measuring 1.04 hectares be shared equally among Maurice Nyongesa Wafula, Protas Sitati Wafula, Margaret Nanjala Makhanu and Electina Nekesa Wafula
p. 5mode of distribution
This being a family dispute, each party to bear their costs.
p. 5costs
The foregoing inclines this court to find and hold that the expert evidence adduced by Mr. Kubwa proved the existence of the deceased's parcels of land and their respective acreage on a balance of probabilities.
p. 5expert evidence - standard of proof
Therefore, it follows that the 2nd Petitioner/Protester could not purport to impeach the expert evidence adduced by Mr. Kubwa before this court through written submissions.
p. 5submissions are not evidence

Issues in the judgment

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minor

The survey report date is inconsistent within the judgment - the ruling opens by referencing a land survey report dated 23rd March 2026, but the surveyor is recorded as producing a survey report dated 23rd June 2026

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "In re Estate of Nasimiyu alias Clare Nasimiyu Wafula (Deceased) (Succession Cause E399 of 2024) [2026] KEMC 583 (KLR)", Case Analysis (2026). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/583/eng@2026-08-06

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.