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MagistrateOtherSuccession Cause No E399 of 2024· [2026] KEMC 592 (KLR)

In re Estate of Nasimiyu alias Clare Nasimiyu Wafula (Deceased) (Succession Cause E399 of 2024) [2026] KEMC 592 (KLR)

Magistrates' Court (Succession)
17 February 2026
2,576 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~10 min to read original · ~4 min brief

The bottom line

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A Bungoma court ruled that a deceased woman's land must be shared equally among all her children, rejecting an attempt to cut out the daughters.

What this practically means

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Executive summary

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This is a first-instance ruling by the Senior Resident Magistrate's Court at Bungoma in a succession cause concerning the intestate estate of Clarah Nasimiyu Wafula, who died on 18th March 2018. Letters of administration intestate were issued to the Protester and the 1st Petitioner on 27th January 2025, after which the 1st Petitioner filed Summons for Confirmation of Grant proposing that the deceased's three parcels of land (E.Bukusu/N.Kanduyi/10358, 10353 and 10686) be shared equally between himself and the Protester to the exclusion of their sisters. The Protester filed an affidavit of protest arguing that the parcels were fraudulently registered in the deceased's name, do not exist on the ground, and form part of his own parcel E.Bukusu/N.Kanduyi/10350. The 1st Petitioner countered that the Protester relied on a revoked 2011 Certificate of Confirmation of Grant, and that the deceased was awarded 2 acres by a fresh certificate issued on 12th June 2014 by Mabeya J in Bungoma High Court P & A Succession Cause No. 172 of 2000. The court framed four issues: the identity of the estate land, the mode of distribution, other orders, and costs. It held that the estate comprises the 2 acres hived from parcel E.Bukusu/N.Kanduyi/318 per the 2014 certificate, that each of the deceased's four children is entitled to an equal share under section 38 of the Law of Succession Act unless a child renounces or the children agree otherwise, and rejected the unsigned consent excluding the sisters. Unable to identify the exact location of the 2 acres given the acreage discrepancy and contradictory evidence, the court issued summons to the Land Registrar Bungoma and the Bungoma County Land Surveyor, and ordered each party to bear their own costs.

Key legal issues

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01

What parcel of land constitutes the deceased's estate for distribution

Holding

The deceased's estate is the 2 acres of land hived from parcel E.Bukusu/N.Kanduyi/318 as awarded by the Certificate of Confirmation of Grant issued on 12th June 2014 in Bungoma High Court P & A Succession Cause No. 172 of 2000; the 2011 certificate relied on by the Protester was revoked and could not ground the Protest

Reasoning

The Protester did not controvert evidence that the 2011 Certificate of Confirmation of Grant was revoked by Mabeya J on 12th June 2014 and replaced with a fresh certificate awarding the deceased 2 acres. The court therefore held that the subsisting 2014 certificate defines the estate. It noted, however, that the registered parcels total 2.7 acres and expressed concern at the discrepancy, declining to identify the exact location of the 2 acres without the Land Registrar's input.

p. 5
02

The mode of distribution of the deceased's intestate estate

Holding

Each of the deceased's four surviving children is entitled to an equal share of the 2 acres under section 38 of the Law of Succession Act, unless a child renounces their share or the children agree otherwise; the unsigned consent proposing exclusion of the sisters was rejected

Reasoning

Section 38 of the Act provides that where an intestate leaves a surviving child or children but no spouse, the net intestate estate devolves upon or is equally divided among the surviving children. The consent filed with the Summons for Confirmation was signed only by the 1st Petitioner and was unsupported by renunciation affidavits from the daughters, so it could not displace the statutory equal-sharing rule.

p. 6
03

Whether the court can ascertain the identity and/or location of the deceased's 2 acres

Holding

The court cannot identify the 2 acres with exactitude on the contradictory evidence and will summon the Land Registrar Bungoma and the Bungoma County Land Surveyor to shed light on their identity and location

Reasoning

The parcels registered in the deceased's name total 2.7 acres against the 2 acres awarded, and the Protester contends the parcels form part of his own parcel E.Bukusu/N.Kanduyi/10350. The court found the evidence contradictory and invoked its inherent powers under section 48 of the Act and Rule 73 of the Probate and Administration Rules to issue summons to the land officials.

p. 6

Legal principles established

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  • A revoked Certificate of Confirmation of Grant is incapable of grounding rights; the estate available for distribution must be gleaned from the subsisting Certificate of Confirmation of Grant
  • Where an intestate leaves surviving children but no spouse, the net intestate estate devolves equally among the surviving children, subject to renunciation or agreement on a different mode of sharing
  • A consent to a mode of distribution not signed by all beneficiaries cannot be adopted as the agreed mode of distribution

Court orders

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  1. 1.Declared that the deceased's 2 acres of land hived from land parcel number E.Bukusu/N.Kanduyi/318 is the deceased's estate available for distribution to her surviving children
  2. 2.Declared that each of the deceased's surviving children is entitled to an equal share of the deceased's 2 acres of land unless either renounces their share or the children agree on a different mode of distribution
  3. 3.Summons to issue to the Land Registrar Bungoma and the Bungoma County Land Surveyor to shed light on the identity and/or location of the deceased's 2 acres of land hived from parcel E.Bukusu/N.Kanduyi/318
  4. 4.Each party shall bear their costs of the matter

Authorities

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Legislation

  • Law of Succession Act (Cap 160)Section 38
  • Law of Succession Act (Cap 160)Sections 41 and 42
  • Law of Succession Act (Cap 160)Section 48
  • Probate and Administration RulesRule 73

Cases cited (2)

  • Estate of G.K.K (Deceased)
    (2017) eKLR
  • In the matter of the Estate of M'mwongo Kichiu (Deceased)
    (2025) eKLR
Jurisdiction invoked
Probate and Administration jurisdiction under the Law of Succession Act (Cap 160); inherent powers under section 48 of the Act and Rule 73 of the Probate and Administration Rules

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 592 (KLR)", Case Analysis (2026). Succession Cause No E399 of 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/592/eng@2026-02-17

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