Peter Wafula v Joseph Wasike

respondent failed to seek his consent on the mode of distribution and that the affidavit in support of the summons for confirmation dated 1/2/2010 was never signed by the beneficiaries. He deposed that Bokoli/Bokoli/596 was entirely distributed among the daughters of the deceased yet he has been living on the land all his life. Consequently, he has been sued by his sisters who seek a permanent injunction in Bungoma ELC No 4 of 2021. 3. The applicant was of the view that the grant was fraudulently obtained by making of false statements and/or by concealment of material facts. The circumstances leading to confirmation of grant were compounded by concealment, relaying untrue allegations of facts essential to this cause. 4. The application was opposed, and the respondent filed his replying affidavit dated 20/5/2024. The respondents averred that the summons of revocation of the grant herein was filed in bad faith, as the applicant was aware of the proceedings herein but elected not to participate. However, all other beneficiaries participated and were content with how the estate was distributed. It was deposed that the applicant was provided for and is in occupation of his share of the deceased’s estate. The respondent averred that he has been working towards the complete administration of the estate. He also averred that the deceased’s daughters have already obtained title deeds for their respective portions of land. 5. The grant was not obtained by fraudulently making false statements or concealment of material facts. He contends that the filing of the application is calculated at challenging the provisions made to the daughters of the deceased, whom the applicant believes being daughters are not entitled to a share of the deceased’s estate and has refused to give vacant possession of the land given to them. 6. The matter was set down for hearing and the testimonies were as follows: 7. PW1 testified that he has 12 acres as per the distribution. He testified that he settled on parcel No. 596 and has built on parcel 588. He is aggrieved with the mode of distribution, where the brothers are getting 12 acres and the sisters one acre. He is also aggrieved because he was short-changed. He testified that in 2005, the council of elders subdivided the deceased’s property. Thereafter, the respondent used the notes of the council of elders when he swore an affidavit dated 18.10.2010. The deceased’s daughters were allocated Plot 22 Bokoli Market, which has rental shops. However, in 2021, PW1 received a summons that his brothers and sisters sued me for trespass. Initially, he was given parcel 596, and his two sisters, Damaris Kweyu and Robert, were to get a total of 3 acres as well. His other sisters were, however, not included. Following the promulgation of the Constitution of 2010, his other sisters were entitled to a portion of the estate. He testified that he occupies 8 acres in 596 and 4 acres in 588, but has no issue relinquishing 4 acres in plot 588. He testified that he is comfortable with the confirmed grant of 2010. His sisters 8. Joseph Wekesa Wasike (DW1) testified that the applicant was aware of the succession cause but chose not to participate. He testified that the applicant did not sign the consent for distribution and the application to rectify the confirmed grant. Yes, on the ground we are using the land apart from my sisters. DW1 denied the 2005 allocation of the deceased’s property by clan elders. In the initial certificate of confirmation, the applicant was allocated parcel 596, which is 3.24 Ha and 6 acres in parcel 588. 9. After 2010, they had not allocated their sisters’ land. The applicant had built his home in 588, so they relocated him to parcel 588. The sisters were allocated parcel 596, which is 7 acres in total. He has developed 588 but has not built on 596. 10. David Waswa Wasike (DW2), one of the deceased’s sons, testified that he had no problem with the way the land was distributed. He received parcel 1112, and parcel 596 belongs to their sisters. He testified that the applicant had leased parcel 596 to third parties. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18887/eng@2025-11-24 2

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11. Edith Masamba Wasike (DW3) testified that the deceased’s daughters have no issues with how the property was distributed. I stay at Makutano in Bungoma. She explained that initially, the girls did not get land and when they complained and it was agreed that the girls would receive parcel 596. She testified that there was no problem if the applicant wanted them to have 588. Analysis and Determination 12. I have considered the parties’ pleadings and their evidence before the court. The applicant testified that he did not participate in the proceedings of the deceased’s estate; by contrast, DW1 was of the view that the applicant was aware of the proceedings but chose not to participate. 13. The applicant seeks the annulment of the grant, arguing that he is entitled to a portion of parcels 588 and 596. He contends that the deceased’s daughters are entitled only to the market plot. However, he is content with the initial distribution as set out in the confirmed grant dated 18/10/2010, under which he received 3.24 Ha (8 acres) of parcel 596 and 6 acres of parcel 588. The applicant did not have any complaint when he testified regarding other properties forming part of the deceased’s estate. 14. Therefore, the only issue before the court is whether the applicant should get the whole of parcel 596 and parcel 588 at the exclusion of the deceased’s daughters. 15. The distribution according to the grant of 18/10/2010 did not account for the deceased’s daughters, who were also his legal heirs. In my view, the court cannot adopt the initial unlawful distribution of the deceased’s estate. 16. The respondent filed a summons for amendment and/or alteration of the grant dated 31/1/2014. In the affidavit in support of his application, he averred that 5 daughters had been left out in the grant of letters of administration dated 18/10/2010. 17. DW1 stated that he considered the fact that the applicant had already established his residence on parcel 588. Consequently, instead of the initial 6 acres allocated to the applicant on that parcel, he allotted him an additional 6 acres, effectively transferring him to parcel 588. The applicant now holds a total of 12 acres. Furthermore, granting the applicant the entirety of parcel 596 would result in five of the deceased’s daughters being disinherited in favour of the appellant. 18. PW1 testified that all his sisters were married. However, discrimination in inheritance on the basis of gender, sex, or status is prohibited by law and the Constitution. In re Estate of M’Ngarithi M’Miriti [2017] KEHC 7904 (KLR), the court observed: “ (6) From the arguments coming through, it is clear issues to do with discrimination based on gender and sex have emerged. There were bad times in the heavily patriarchal African society; that being born as daughter disinherited you. And so, even the judicial journey to liberate daughters from being so down-trodden by the patriarchal society in Kenya on matters of inheritance has been long and painful. As a matter of fact, due to the constitutional architecture of our nation at the time, before 2010, we only saw pin-prick thrusts and rapier-like strokes by courts on these persistent patriarchal biases. But, things changed when Rono vs. Rono [2008] 1 KLR 803 delivered the downright bludgeon-blow on these discriminatory practices against women in inheritance; it splendidly paid deference to the international instruments against all forms of discrimination against women especially the Convention on the Elimination of All Forms of Discrimination Against Women https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18887/eng@2025-11-24 3

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(CEDAW). And, I am happy to say that from thence, there are many cases- and the number is rising by the day as courts implement the Constitution- which state categorically that discrimination in inheritance on the basis of gender or sex or status is prohibited discrimination in law and the Constitution.” 19. The power to revoke a grant is a discretionary power that must be exercised judiciously and only on sound grounds. Mativo J., in his decision of 29th January, 2016, in the case of Angelas Maina v Rebecca Waiyego Mwangi & Another, Succession Cause No 692 of 2012, stated thus; “ Under Section 76, the Court has discretionary power when faced with application for revocation. It can make such orders as it considers fitt in the circumstances. The court is not bound to issue revocation even where the case has been set out under Section 76. In Kipkurgat Arap Chepsiror and Others v Kisugut arap Chepsior, the court declined to grant the prayer for revocation, but instead entered the names of the applicants in the grant as beneficiaries. In the matter of the estate of Jonathan Mutua Misi-deceased the applicant sought revocation on grounds that it had been obtained on false statements. He was a son of the deceased and his name had been omitted from the list of survivors and instead of ordering a revocation, the court directed that his name be included in the list.” 20. Therefore, in this case, I find no reason to revoke the grant after the respondent showed that the applicant had been moved to parcel 588 to allow the deceased’s daughter a share in the estate. The respondent took into account that the applicant had established his home on parcel 588; therefore, I find no reason to revoke the grant. 21. The application dated 25/3/2023 is hereby dismissed. DATED, SIGNED AND DELIVERED AT BUNGOMA THIS 24TH DAY OF NOVEMBER, 2025 ..................................................... R. E. OUGO JUDGE In the presence of: Mr Ingosi - For the Petitioner Peter Wafula Wasike - Present Respondent - Absent Wilkister - C/A https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18887/eng@2025-11-24 4

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