High Court 4248 of 2026

3. David Sila Mulinge and James Muema Mbevi the 2 nd and 3 rd Administrators are grandchild and son of the 1st wife Voethe Kalunde Mbevi. 4. Many preliminary issues including substitution of deceased parties have been dealt with culminating in the summons of confirmation of grant dated 04/07/2023, filed by the 2nd Administrator, David Sila Mulinge. The Afidavit sworn on 04/07/2023 in support of Summons for Conffirmation of Grant 5. David Sila Mulinge deponed that he swore the affidavit on his own behalf and on behalf of his siblings whom he represents from the house of Voethe Kalunde Mbevi (deceased). 6. That, by consent of the parties, a grant of letters of administration of the estate was made jointly to Zakayo Nyamai Mbevi, Esther Mbenge Mbevi, James Muema Mbevi and Simon Musyoka Mbevi by the Honourable Judge at Makueni on 11/05/2021. That, subsequently, Summons for Confirmation of Grant were lodged by the 2nd Administrator, Zakayo Nyamai Mbevi. 7. He deponed that his two siblings who were beneficiaries to the estate passed on before the grant could be confirmed; Grace Muvoye Mati, in April 2022, Zakayo Nyamai Mbevi, who was also the 2nd Administrator in May 2023. That, it became necessary and just to amend the earlier proposed distribution schedule to include the children of the late Grace and the wife of the late Zakayo 8. He deponed that his affidavit consolidated all the affidavits that had been sworn by the late Zakayo Mbevi in relation to and in support of the Summons for Confirmation of Grant and distribution of property for the purposes of the hearing of the protests. 9. He deponed that all dependants have been identified and there is no likelihood of any other person raising an objection to this application. 10. He deponed that the deceased was survived by the following; a. Voethe Kalunde Mbevi … wife (deceased) b. Esther Mbenge Mbevi … wife c. Paul Musau Mbevi … son (deceased) d. James Muema Mbevi … son e. Zakayo Nyamai Mbevi … son (deceased) f. William Ngenda Mbevi … son g. David Sila Mbevi … son h. Jonah Kyalo Mbevi … son i) Justus Makau Mbevi …… son j. Francis Mwanza Mbevi… son k. Simon Musyoka Mbevi… son l. Julius Ndivo Mbevi… son m. Lilian Wayua Mbevi… daughter n. Grace Muvoye Mati… daughter (deceased) https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4248/eng@2026-02-20 2

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o. Dorothy Mbithi… daughter p. Beatrice Ndolo… daughter q. Serah Wambua… daughter https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4248/eng@2026-02-20 3

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11. He deponed that no application for provision for dependants was pending and that he had identified the shares of all persons beneficially entitled to the estate of John Mbevi Mulinge, from the house of Voethe Kalunde Mbevi (deceased), and proposed distribution as follows: Asset Beneficiary Share Shop No.12A Ukia Market David S. M. Mulinge Absolutely Parcel No. Ukia/ Utaati/637 2 Acres 1. David S. M. Mulinge 2. Jonah Kyalo Mbevi 3. Beatrice Kinyanzui Ndolo 0.75 Acres 0.75 Acres 0.50 Acres Parcel No. Ukia/ Kilala/112 2.5 Acres 1. Israel Manthi Mbevi & Muini Mbevi (jointly) – to hold in trust for the entire family of Paul Musau Mbevi. 2. James Muema Mbevi 3. William Ngenda Mbevi 4. Beatrice Kinyanzui Ndolo 0.75 Acres 0.75 Acres 0.75 Acres 0.25 Acres Parcel No. Ukia/ Utaati/624 3 Acres 1. Esther Mueni Mbevi - to hold in trust for the family of Zakayo Nyamai Mbevi. 2. Serah Mutheu Mati, Naomi Kalunde Mati, Phoeby Mwende Mati, Job Mwendwa Mati and Joan Kavinya Mati. 0.75 Acres 0.75 Acres in equal shares 0.75 Acres 0.75 Acres 3. Serah Mulewa Wambua 4. Dorothy N. Mbithi Parcel No. Machakos/Konza North/Block I/321 Luis Nzisa Kitulu (Purchaser) https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4248/eng@2026-02-20 Absolutely 4

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Shop No.6, Market Ukia William Mbevi Ngenda Absolutely 12. He deponed that the Affidavits of Protest filed by James Muema Mbevi, William Ngenda Mbevi, Michael Mutua Mbevi and Simon Musyoka Mbevi together with their proposed schedules of distribution had been considered and the proposed schedule of distribution that was originally filed with the Summons for Confirmation of Grant had been amended as per paragraph 7 above. That, the proposed distribution in this affidavit relates only to the properties identified in the petition that are associated with the household of Voethe Kalunde Mbevi (deceased). 13. That, the rest of the properties would be dealt with by the representative of the household of Esther Mbenge Mbevi. 14. He attached the search certificates for the deceased’s properties known as Ukia/Kilala/112, Ukia/ Utaati/637 and Ukia/Utaati/624 as exhibits DSM 1A, 1B and 1C respectively. 15. He deponed that LR No. Machakos/Konza North/Block 1/321 was sold by the deceased’s wives, Voethe Kalunde and Esther Mbenge in 1997 to one Luis Nzisa Kitulu, and is yet to be transferred to the Purchaser. A copy of the Sale Agreement is annexed as DSM 2. 16. It is also deponed that in the pendency of these proceedings, Plot Number 6, Ukia Market, which was originally in the name of the deceased, John Mbevi, has secretly and fraudulently been transferred to his brother, William Ngenda Mbevi. However, the family now wishes to let the property remain in William’s name as part of his share of the estate. 17. That having read the Affidavits of Protest sworn by James Muema Mbevi, William Ngenda Mbevi, Michael Mutua Mbevi and Simon Musyoka Mbevi, his response is as follows: a. The property referred to as Plot No. 21A, Ukia Market, at paragraph 4 (ii) of the Affidavit of Simon Musyoka Mbevi, does not exist, it is a mistake and to read Plot No. 12B, Ukia Market, and may be distributed to one of the sons of the 1st Administrator as proposed. b. The property listed at paragraph 4(iv) of the Affidavit of Simon Musyoka Mbevi, being Konza South Block 7 (Kima) 314, and Konza Plot No.1452 at paragraph 3(l)and 3(j)of the joint Affidavit of William Mbevi and James Mbevi, are one and the same property. The number 314 is the ballot number while 1452 is the title number . belongs to and is registered in the joint names of Esther M. Mbevi (1st Administrator) and Kalunde Mbevi (now deceased), the wives of the deceased. A copy of the search certificate is annexed as exhibit DSM 3. It is not available for distribution. c. The property listed at paragraph 3(h) of the joint Affidavit of William Mbevi and James Mbevi, Konza South Block 7 (Kima) 1897, is also referred to as Commercial Plot No. 932 at paragraph 3(g) of the joint Affidavit of William Mbevi and James Mbevi. The number 932 is the ballot number while 1897 is the title number. It is registered in the name of Cha- Uni Investment Limited, a purchaser. It belonged to the wives of the deceased. A copy of the search certificate is annexed as exhibit DSM 4. It is not available for distribution d. The property known as Ukia/Utaati/Plot 12A was sold to him, David S. M. Mulinge, by the family, way back in the year 2013 at a time when the deceased’s wife, Voethe Kalunde Mbevi, was battling with ill health and funds were required in order to take care of her treatment and other needs. The family therefore held a meeting and agreed to sell the said property to one of https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4248/eng@2026-02-20 5

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their own. A copy of the minutes of the meeting and the sale agreement are exhibited as DSM 5 and it is only fair and proper that it should be transferred to him. e. That the property known as Kwa Katheka Plot No.74 listed at paragraph 3(f) of the joint Affidavit of William Mbevi and James Mbevi, was sold by the deceased several years ago. It is not available for distribution. f. The properties known as Konza Plot No. 896, Konza Plot No. 614 and Konza Commercial Plot (20ft by 100ft), listed at paragraph 3(i), 3(k) and 3(m), respectively, of the joint Affidavit of William Mbevi and James Mbevi, are non- existent as no record of these properties has been found anywhere. g. That, he David S. M. Mulinge, has settled on a portion of Ukia/Utaati/637 where he has built his home which stands side by side with their late mother’s house and he has lived with his family for many years. That, the protesters proposal that the property be distributed to the other beneficiaries, to his exclusion, and that he be evicted and his home demolished is wrong, unfair and untenable as he has no other home anywhere. He has annexed a bundle of photographs and sketch showing how his home and that of their late mother are positioned on the ground as exhibit DSM 6. h. That the allotment letter for the property known as Ukia/Utaati/Plot 12 has been traced and shows that the said property belonged to the deceased. A copy of the Letter of Allotment dated 11/07/1980 is annexed as exhibit DSM 7. That, there are 2 shops constructed on the Plot 12A and 12B and he, David S. M. Mulinge occupies the one for his late mother while the house of Esther Mbenge occupies the other shop. i. That, the affidavits of protest inter alia contain proposals of distribution that are grossly unfair having included and apportioned nonexistent properties some of which are either sold or registered in other people’s names. That these proposals ought to be rejected and the schedule of distribution proposed under paragraph 7 above be upheld. The Protests Joint Afidavit by James Muema Mbevi & William Ngenda Mbevi sworn on 30/07/2021 and ffiled on 07/09/2021 18. They deponed that the deceased had the following assets before his demise; a. Ukia/Kilala Parcel No. 112 – 1.0 Ha b. Ukia/Utatii Parcel No. 624 – 1.2 Ha c. Ukia/Utatii Parcel No. 637 – 0.8 Ha d. Ukia/Utatii Parcel No. 12A e. Konza North Block 1/321 – 10 Acres f. Kwa Katheka Plot No. 74 g. Commercial plot No. 932 h. Konza South/Block 7 (KIMA) 1897 i. Konza Plot No. 896 https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4248/eng@2026-02-20 6

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j. Konza/South Block 7 (KIMA) 314 k. Konza Plot 614 l. Konza Plot No. 1452 m. Konza Commercial Plot Measuring 20FT X 100FT 19. They exhibited the grant of letters of administration issued to the late Voethe Kalunde Mbevi and Esther Mbenge Mbevi as JMM 1. 20. According to them, Konza North/Block 1/321 was illegally sold to Luis Nzisa Kitulu because the administrators of an estate do not have powers to dispose off any property belonging to the deceased during the pendency of succession proceedings. That, the sale agreement annexed to the Summons for Confirmation of grant amounts to intermeddling and this court should find that the sale is null and void. 21. They deponed that a purchaser is not a beneficiary of an estate of a deceased person and should pursue his claim in civil proceedings. 22. That, the 2 nd Administrator has left out most of the properties located in Konza and it is prudent for the court to administer all the properties belonging to the deceased. The properties are; 23. a. Konza North Block 1/321 – 10 Acres b. Kwa Katheke Plot No. 74 c. Konza South/Block 7 (KIMA) 1897 d. Konza plot No. 932 e. Konza Plot No. 1452 f. Konza Plot No. 896 measuring 30FT X 80FT g. Konza/South Block 7 (KIMA) 314 h. Konza Plot 614 i. Konza Commercial Plot Measuring 20FT X 100FT The search certificates for the above properties were exhibited as JMM 2 and proposed that the distribution be done as follows; Asset Beneficiary https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4248/eng@2026-02-20 Share 7

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Ukia/Kilala 112 Michael Mutua Mbevi Absolutely Israel Manthi Mbevi & Muini Mbevi (Jointly) – To hold in trust for the entire family of the late Paul Musau Mbevi Ukia/Utaati/624 James Muema Mbevi Absolutely Kwa Katheke Plot No. 74 Zakayo Nyamai Mbevi Absolutely Konza South/Block 7 Davis Sila Mbevi Absolutely Konza Plot No. 896 Grace Muvoye Mati Absolutely Konza Commercial Plot measuring 20FT X 100FT Dorothy Mbithi Absolutely Ukia/Utatii/12A Beatrice Ndolo Absolutely Ukia/Utatii/637 Johan Kyalo Mbevi William Ngenda Mbevi Two portions and a common land to be held by the administrators in trust for the other beneficiaries Konza Plot 932 Serah Mulewa Wambua Absolutely (KIMA) 1897 24. It is their prayer that the title of land parcels numbers; Konza North Block 1/321, Konza South/Block 7 (KIMA) 314, Konza Plot 614, Konza Plot No. 1452 and Konza Commercial Plot Measuring 20FT X 100FT be cancelled and be reverted to the name of the deceased. Further that these parcels be sold and the proceeds shared equally amongst James Muema Mbevi, William Ngenda Mbevi, Jonah Kyalo Mbevi and the beneficiaries of the late Paul Musau Mbevi. 25. They deponed that the 2 nd Administrator has not annexed any documentary evidence to show that Plot No. 6 Ukia Market belonged to the deceased. 26. That, there is pending before this court HCCC No. 4 of 2020 where land parcel Ukia/Utaati/624 is in dispute. 27. They deponed that the consent to confirmation was never executed by all the beneficiaries hence it should be disregarded. Afidavit by Michael Mutua Mbevi sworn on 30/07/2021 and ffiled on 07/09/2021 28. He deponed that as a son to the late Paul Musau Mbevi, who is a beneficiary to the estate of the deceased, he has authority from his siblings to represent the interest of their father in these proceedings. 29. His proposed mode of distribution and the rest of the affidavit are similar to the joint affidavit of James Muema Mbevi & William Ngenda Mbevi. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4248/eng@2026-02-20 8

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Afidavit by Simon Musyoka Mbevi sworn on 14/10/2021 and ffiled on 15/10/2021 30. He deponed that the house of his mother, Esther Mbenge Mbevi, has no interest in the properties listed in the affidavit sworn in support of the Summons. However, he deponed that it is imprudent and unprocedural for the grant to be confirmed in respect of only part of the deceased’s estate. 31. He deponed that the portion of the estate that relates to his mother’s household comprises of the following properties; 32. a. Ukia/Utaati/630 b. Plot No. 21A Ukia Market c. Ukia/Utaati/1244 d. Konza South Block 7 (KIMA) 314 e. Commercial Plot No. 932 at Konza f. Commercial Plot No. 1/321at Konza He deponed that the identification of all persons beneficially entitled to the said estate have been ascertained and determines as follows; Property Identification Beneficiary Share Ukia/Utaati/630 Justus Makau Mbevi Francis Mwanzia Mbevi Julius Ndivo Mbevi 1/3 share each Plot No. 21 A Ukia Market Julius Ndivo Mbevi Absolutely Ukia/Utaati/1244 Simon Musyoka Mbevi Absolutely Justus Makau Mbevi Francis Mwanzia Mbevi Simon Musyoka Mbevi Julius Ndivo Mbevi ½ of the existing parcel Konza South (Kima)314 Block 7 As joint owners 33. Commercial Plot No. 932 at Konza David Sila Mulinge Whole Plot No. 1/321 Konza North Luis Kitulu Whole He deponed that no application for dependents is pending. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4248/eng@2026-02-20 9

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Afidavit by Johan Kyalo Mbevi sworn on 18/07/2023 and ffiled on the same date 34. He deponed that he is the last-born child of the deceased and the 1st wife, the late Voethe Kalunde Mbevi. That, he has been minimally involved in the succession process as some of his siblings have kept him out of the loop as to the happenings of this succession matter. 35. He deponed that in 1997 he was already in gainful employment and his mother was of good health until her passing, and the averment by his siblings, that they had to sell part of the estate to pay his school fees and her medical bill, is untrue. 36. He deponed that he initially settled on Ukia/Utaati/624 through the blessings of his late mother and has lived on the property for 27 years developing it by planting oranges, mangoes, constructing a house and laying a permanent foundation for another house. A bundle of pictures is annexed as exhibit JK-1. That, despite this, some of his brothers have decided to disinherit him by kicking him out. They maliciously destroyed his property whereupon he reported to the police and filed a case in this court being HCCC No. 4 of 2020. 37. He deponed that his brothers maliciously destroyed his property rendering him homeless and destitute, his house was locked by William Mbevi. That he has no place to stay whenever he goes home and has to be hosted by one of his brothers or book a hotel in Wote town which is quite unfair and humiliating for him. That he reported to the police and filed a case in this court being HCCC No. 4 of 2020. 38. He deponed that according to Kamba customary law, as the last born, he was entitled to inherit his mother’s home (Ukia/Utaati/637). That, from the mode of distribution filed in court, his brothers were bent on sharing the home among him, David and Beatrice. A picture of the house annexed as exhibit JK 2. 39. He deponed that some of his siblings were referring to him as Internally Displaced Person (IDP) and he annexed a copy of the statement by one of the beneficiaries is as JK 3. 40. His proposal is that if at all their mothers homestead is to be distributed then it should be divided between two of her sons since their sister can be allocated elsewhere. 41. He deponed that he was diagnosed with type 2 diabetes and hypertension in 1995 and was in and out of the hospital and it was impossible for him to follow up on this issue of succession. 42. That, when he signed documents relating to this succession, he was medically unfit to do so hence they should be disregarded. He has annexed a copy of doctor’s note as JK 4. 43. He deponed that he recently found out that some beneficiaries have intermeddled with the following properties; a. Konza/North/Block 1/321 which was illegally sold to Luis Nzisa Kitulu. b. Konza South Block 7 (KIMA) illegally transferred to Chauni Investment wherein David Mulinge is a director. c. Shop No. 12A in Ukia Market illegally allocated to David S. Mulinge d. Kwa Katheke Plot No. 74 which was omitted from the distribution list adduced in court. e. Shop No. 6 in Ukia Market illegally transferred to William Mbevi. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4248/eng@2026-02-20 10

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44. He urged the court to issue orders to revert the above properties to the deceased. That if they are to be sold, it should be at the current market price. That, whoever illegally received money from sale of any part of the estate should be ordered to refund the money to the buyers. 45. That he had visited Zakayo Mbevi to talk about these issues but Zakayo died before he could convene a family meeting. That, all his attempts to communicate with the family lawyer proved futile thus necessitating the filing of the protest. He annexed WhatsApp screenshots between him and the Lawyer as JK 5. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4248/eng@2026-02-20 11

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46. His proposed mode of distribution is as follows; Asset Beneficiary Share Ukia/Kilala/112 Israel Manthi & Muini Mbevi(jointly) to hold in trust for the entire family of Paul Musau Mbevi James Muema Mbevi William Ngenda Mbevi Beatrice Kinyanzui Ndolo 0.75 acres 0.75 acres 0.75 acres 0.75 acres Ukia/Utaati/624 Jonah Kyalo Mbevi Absolutely Kwa Katheka Plot No. 74 (2 acres) Zakayo Nyamai Mbevi Serah Mulewa Wambua Dorothy N. Mbithi To share equally Konza South/Block 7 (KIMA) 1897 Jonah Kyalo Mbevi Absolutely Konza Plot No. 896 Grace Muvoye Mati Absolutely Ukia/Utaati 21A Jonah Kyalo Mbevi Absolutely Ukia/Utaati/ 637 Jonah Kyalo Mbevi David Sila Mbevi Two portions and a common land to be held by the Administrators in trust for other beneficiaries Konza Plot No. 932 James Muema Mbevi Absolutely Machakos/Konza North/Block 1/321 William Ngenda Mbevi James Muema Mbevi Jonah Kyalo Mbevi Grave Muvoye Mati To share equally 47. He deponed that the consent for confirmation of grant was never executed by all the beneficiaries hence it should be disregarded. 48. The matter was heard through viva voce evidence. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4248/eng@2026-02-20 12

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Protestors’ Case 49. 1st Protestor was Simon Musyoka Mbevi, the 4th Administrator and he adopted his affidavit dated 14/10/2021 as his evidence in chief. 50. On cross-examination by Mr. Simiyu for the 3rd Administrator with regard to registered owner of shop No. 6 at Ukia Market, he said that he heard that the property is registered under William’s name. He stated that he had not seen the title deed and had not done a search. He was not aware as to whether there is an agreement/transfer. He said that the previous owner was his late father and that he had not seen any agreement between his father and William. 51. On cross-examination by Mr. Mbindyo for the Interested Party, he confirmed that he had no objection to Machakos/Konza North/Block 1/321 being transferred to the estate of Luis Nzisa Kitulu. 52. On cross-examination by Mrs. Mutua for the 2nd Administrator with regard to plot No. 12 Ukia market, he confirmed that there has been plot 12A and 12B for each house and he meant plot No. 12B, for his family and that plot No. 12A should be distributed to the 2nd Administrator’s family. . 53. 2 nd Protestor was James Mbevi and he adopted his witness statement dated 09/11/2022 as his evidence as captured in his affidavit of protest, He indicated that he wished to put in a new statement to change the manner of distribution and the court directed him to mention the properties he had discovered. He said that the omitted properties are in Konza Ranch. His Advocate said that the properties which were in the name of the deceased at the point of death were transferred by the Konza Ranch and Farming Society to both wives. 54. On cross-examination by Ms. Munyiva for Jonah Kyalo (protestor) with regard to Ukia/Utaati/624, he said that the parcel should be given to him(James) absolutely as it was gifted to him in 1969 and he started tilling it since he was 7 years old. He said that after school, he worked with ministry of lands all his life. He confirmed that the property had not been transferred to him and that he had no photos of himself on the land. He conceded that there was no one in court to confirm that the land was gifted to him. 55. He also conceded that he and William Ngenda Mbevi were the defendants in Makueni HCCC 4 of 2020 where Jonah Kyalo Mbevi was the plaintiff claiming that they entered Ukia/Utaati/624 maliciously destroyed property. He denied the allegations. 56. On cross-examination by Ms. Mwangi for Jonah Kyalo (protestor) with regard to Ukia/Utaati/624, he said that he was gifted ½ the portion on his wedding day and the other ½ as his inheritance. That, the inheritance allocation was made by himself, William Ngenda Mbevi and Mutua Paul Mbevi and that it was not a family decision. 57. On cross-examination by Ms. Kalinga for the 1 st & 4 th Administrators, he confirmed that when he said plot No. 21 Ukia he meant plot No. 12B. He said that his 2 sisters should also have a share in commercial plot 932 at Konza. 58. On cross-examination by Mrs. Mutua for the 2nd Administrator, he said that the affidavit dated 07/07/2023 was his final proposal. That, he should have Ukia/Utaati/624 absolutely as it was partially a gift and partially inheritance. That, he entered the land when he was 7 years old and was tiling the land, maize, beans, sweet potatoes. He denied that , Jonah Mbevi ever planted oranges, mangoes and avocadoes but it was their mother who planted them. With regard to HCCC 004/2020, he maintained that he did not destroy anything. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4248/eng@2026-02-20 13

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59. With regard to the equal distribution proposed by David Sila Mulinge, he said that Ukia/Utaati/637 belonged to his father and it was his parent’s homestead. That, it was William Ngenda Mbevi and David Sila Mulinge who were living there . 60. That there were two buildings, a storied house belonging to David Sila and the other one belonging to their mother but was bequeathed to William Ngenda Mbevi before she died. He was shown photos and he identified the green gate leading to his parents’ house, the front of the other house, the cemetery where their parents are buried. 61. That, William Ngenda partly built the house together with other members of the family i.e., David Sila, William and Jonah. That, they did so by way of contribution. That, the house was for their mother, plus rooms for themselves because they were not married. That, William has another home for his other family which is not finished but where his children live when they visit. 62. He said he could not remember when David Sila built his house but said it could be 5 years ago, less than 10 years ago. that David Sila and William Mbevi had lived on that parcel of land the longest . 63. He denied proposing that David Sila should be evicted. That this was common land for all the 20 children. He could not recall the last time they met there as a family but that, they had been meeting since 2016 when their mother died but have not been keeping records. That, many have been denied access and are only granted after coercion. He said that the home should not be distributed but Jonah could build there if he wished to live with his brother William. 64. With reference to the Konza properties, he said that there was a share certificate showing that they belonged to his father but he did not produce it. His proposal was the 10 shares be sold and proceeds shared. 65. With reference to Konza Plot No. 74 (Kwa Kaveke), he said did not need to have proof of ownership but was aware that it was sold by Zakayo Mbevi though he was not aware whether there is a title. 66. Regarding Konza plot No. 932 he confirmed that he has distributed it as per the letter from Konza. Referred to letter dated 18/10/2022 from Konza Ranching, he confirmed that the property was sold by Voe the Kalunde and Esther Mbenge to Chauni Investment Ltd and that the title deed was in the name of the new buyer. He insisted that the property was still available for distribution despite being in the title of the new owner. He said that he was not aware that plot 932 and 1987 was the same property or that 932 was the ballot number and 1987 the plot number. That, a clarification would be given by Konza people. 67. When asked why he had distributed plot 1452 Konza, he confirmed that the title is in the names of their mothers but insisted that it should still form part of the estate. As to whether plot 1452 is the same as 314, he said that the letter from Konza Ranching is vague and not legible. When asked whether he had evidence to prove ownership of Konza Plot 896, he said that it was in the letter and grant documents hence no need of any other evidence. 68. Referred to Konza plot No.1/321, he confirmed that according to the letter, it was sold to Titus Musyoka Kitulu but insisted that it belonged to his father and should be distributed. 69. With regard to Konza plot No. 614 and Konza plot measuring 20x100, he conceded that according to letter from society, the properties are unknown. He however insisted that the properties exist and belonged to his father and the society had not done a proper search or taken time to survey and locate the same. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4248/eng@2026-02-20 14

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70. Asked about his sister’s shares, he stated that he had assigned one in the Konza plots and the other the Ukia shop. When it was put to him that he had done so knowing very well that the plots were nonexistent, he insisted that they exist and if they were sold, then they were sold by his sisters and brothers. He said he did not have evidence other than his words which he insisted were the truth. 71. On further cross-examination, he said that the common land should be distributed to William and Jonah. That he had left out David Sila Mulinge from the distribution despite having a building on the land and that he has proposed distribution of common land of ¼ acre to 22 beneficiaries. 72. On cross-examination by Mr. Mbindyo for the Interested Party, he said that Tito Musyoka Kitulu was not known to him and that he was not aware of the sale of Machakos/ Konza North /Block 1/321 until he saw the documents saying so. That, the sale agreement did not bear the deceased’s name. On being shown the sale agreement, he said that the sellers were his mother and step-mother, the purchaser was Loise Kitulu and the document is dated 07/07/1997. He was not aware that 19 of his siblings consented to the sale. 73. He took the position that even though his mother sold the property his father’s name was not in the sale agreement and the property could only be rightfully sold after succession. 74. He told the court that he was appointed as an Administrator on 11/05/2021 and at the time of his testimony on 26/10/2023, he had been an Administrator for over 2 years. That, one of the functions of an Administrator is to file suits on behalf of the estate. He conceded that he had not sued anyone; that he worked in Ministry of Lands for over 30 years as senior assistant valuer and it was not a guarantee that title deeds are proof of ownership; that the current registered owner of plot 21 is John Mbevi but that it is well known that there was a problem. That, Titus Kitulu is assigned no. 321; that plot No. 932 is owned by Chauni Investment Ltd and is not in his father’s name but contended that it was not sold by the deceased. 75. David Mulo Katu Yaitha-Secretary to the Konza Ranching & Farming Cooperative Society testified that Mr. John Mbevi Mulinge was their member number 229 and had given his 2 wives as his next of kin. He listed his assets as follows; i. 10 shares worth Kshs.5,000/= ii. An agricultural plot land subdivided in 1978/79- it has title No. Konza North Block 1/321, 10 acres. iii. 30x80 commercial plot No. 896 – Kwa Mautio iv. Plot No. 74, 2 acres agricultural, Kwa Katheka (against plot 74 has a family dispute cannot be sold). 76. He testified that in 2009/2010, 2011, they sub-divided the remaining society land – Kima Estate and Konza Ranch where the deceased has 4.249 Ha. Each member was issued with 2 acres for commercial properties Kima estate – Konza South/Konza South Block 7 (Kima) 314. That, Konza South/Konza South Block 5 (Konza) 1897 0.809 Ha. was sold by his wives Voethe Kalunde Mbevi and Esther Mbenge Mbevi. That, there were also dividends. 77. He confirmed that he was the one who had signed the letter about property of John Mbevi Mulinge which stated that there were two plots whose status was unknown as they were not in their records. 78. On cross-examination by Mrs. Mutua for the 2nd Administrator, he said that he had been secretary since 2008 and had made reference to what he found in the record. That, the letter was in response to https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4248/eng@2026-02-20 15

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a request in form of a letter, from one of the family members, which they received in their office but he didn’t have the letter in court. That, the letter is not addressed to anyone but it requested for details of property owned by John Mbevi in the ranch. 79. He testified that they changed the register to show that the shares devolved to the wives. That, all the shares and properties were held in trust. He confirmed that the shares, the plot in Kima Konza South Block 7 (Kima) 314 was in the names of the 2 widows and the commercial property 932 was sold by the two widows to Chauni Investment Limited. 80. When asked whether there was anything to prove that plot 74 was in the name of the deceased, he responded in the affirmative and said that it was in his records. That, even 896 was in the name of the original owner. He recognized the illegible handwritten note in the affidavit of James Muema Mbevi and William Ngenda sworn on 30/07/2021 and stated that, the stamp meant that it was received in their office. 81. He said that Plot Konza North Block 1/321 was not in the name of the deceased and Plot No. 896 Konza – 30x80 was in the name of deceased but he had no evidence to that effect. That, they did not have records for Plot 614 Konza and plot 20x100. 82. On cross-examination by Mr. Mbindyo for the Interested Party, he said that he was not aware that John Mbevi Mulinge had passed away. That, members approved to have their next of kin take up their property upon demise. That, Voethe Kalunde and Esther took over what was distributed when they were members. That, Plot 321 was not in name of deceased and was in the name of Tito Musyoka Kitulo who got title deed in 1992. 83. The 3rd Protestor was Jonah Kyalo Mbevi and he adopted his affidavit dated 18/07/2023 as his evidence in chief. He told the court that, his protest was due to unfair distribution by the 2nd Administrator. 84. On cross-examination by Mr. Simiyu for 3rd Administrator, he said that he was born on plot 637 where his parents lived and his proposal was that it should be made available to all descendants of his parents. That, though Plot 624 was gifted to him by his mother, Voethe Kalunde, it was registered in his father’s name. He was not aware that his father gifted plot 624 to James Muema Mbevi in 1969 as a wedding gift. 85. On cross-examination by Mr. Mbindyo for the Interested Party, he stated that the information he had about plot 321 was that it was sold by his mother and step mother in 1997 and confirmation of grant was 1998; that the sale by the 2 mothers was illegal because not all family members consented That the property to be sold was No. 7 Kima. He was aware that the property had been transferred to his two mothers by the cooperative. He said that the mothers had to seek consent as the grant had not yet been confirmed. He said that he was not aware that the property was transferred to Tito Kitulu after sale by his mothers. 86. On cross-examination by Mr. Kimuli for 2nd Administrator, he said that apart from James and William, the rest of his siblings stood with him. That, they had not always treated him as the family baby. That, his sister Beatrice educated him and that apart from James and William, the rest agreed that Zakayo would be their administrator. That, other than the succession issue, he has nothing against David Sila. 87. He confirmed that he did not sign the consent that Zakayo had filed. He said that he could not remember the family suggesting that he should get no.624 and could not recall saying that he was not interested in 624 because it was embroiled in a fight with his brothers. When asked whether he recalled asking to be allocated no.637 instead of 624, he said that allocation of 624 was automatic. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4248/eng@2026-02-20 16

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88. He confirmed that he had not indicated sizes of land in his schedule of distribution and that his brother David had indicated sizes and attached searches. He said that 624 is about 3 acres and that he wanted the whole of it to be allocated to him. That, it was a gift from his mother during his wedding in 1992. He confirmed that 624 is in the deceased’s name. when asked whether his mother had a right to give him the land before confirmation of grant, he said that he was aware that she would not confer the right and agreed that the deceased did not give him the land when he was alive. 89. When asked whether any of his siblings was given land as a wedding gift, he said that he was not aware and that not all siblings are married. When asked whether he claims 637 because he is the last born, he said that he believes he should get it because he also contributed to the construction of the house. When told that his mother was aware that he was the last born and would have given him where she had a right, he said that she could give anywhere. That, it was not true that she did not intend to have him live where she was living. That, he never heard her indication or her wish as to who should have the place where their parents lived. That, he contributed money for his mother’s house and should have it. That, he took a loan but cannot tell how much he contributed. That, it would not be fair that the court should reject what he was saying because he did not have documents. That, he was an IDP, homeless and his siblings are to blame. That, he knew Ukia/Utaati/624 was his home but everything was destroyed. That, everyone knew it was his home. 90. He said that he did not have a house on 624 but was constructing. When told that he had gone to school, worked and made money, he said that he was in school in America and never bought any property. That, he was diabetic and hypertensive, lived on medication and supported by his children and wife. That, he was not supported by his siblings. That, he was supported by the land that was destroyed- the mangoes, oranges. 91. When told to stop playing victim and that he was a strong man, he reiterated that he was sick. He agreed that, everyone was born on 637 and calls that home. He proposed that he and David Sila who has constructed a home there should have 637 together . That, 0.75 should be given to him, 0.75 to David and ½ acre for the others. When told that Willie said that he has been living on the property, he said that everyone was living there until their mother died. That, he (Jonah) called a meeting and said he would inherit the house. When told that it is the house that is common than anything else, he said that the common place is the burial ground and agreed that his sister can sleep in that house. 92. He said that he needed his mother’s house to live in. That, at his age and with all his accomplishments, he did not have a home. That, their mother died in 2016 and he would live there with his family when she was alive. He said that Willie did not have a room in their mother’s house. That Willie had many flats and the court should believe him and not Willie. 93. When told that David’s proposal is that he (David) should get 637 and then Beatrice and the rest get an equal share of ¾ of an acre, he said that his (Jonah) proposal was fair as his sister had another portion. That, if they failed to agree on how 637 would be shared, he would not object if the court found that the house belonged to everyone and he will try to build his own. 94. He said that Ukia/Utaati/12A is the shop at Ukia Market which David has allocated to himself. That, the reason for allocating to himself (Jonah) is because he was given on his wedding as a gift by his mother. He disagreed that David bought it in order to get medication for their mother. When asked whether he was disputing the minutes attached to David’s affidavit, he said that he could not say because he was not involved. He confirmed that it was a practice to hold meetings to discuss matters of family agenda but things went south when their mother died. He agreed that their mother’s health was critical enough to bring the family together but said that he could not remember meeting with his siblings to discuss the healthcare. He confirmed that as their mother aged, her health deteriorated and https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4248/eng@2026-02-20 17

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she needed constant care; that there was an agreement to employ a nurse and that he was contributing towards her salary after being told by Zakayo. That, he was not personally present when they agreed on the nurse (court noted that the witness was avoiding to answer questions). 95. With regard to 624, he said that he could not recall sitting in a family meeting where he raised the issue of 624. He said that being diabetic sometimes affected his memory. He confirmed that his mother was unwell in 2013 and that in August 2013, he was in Kenya but that he would miss meetings. 96. Asked about the salary for his mother’s house help, pampers for his mother and a wheelchair, he could not recall but that they would meet in their mother’s house. 97. He denied his wife’s presence in that meeting and said that some things in the minutes were manufactured. 98. He was aware that No. 7 Konza was to be sold and that he met his brother in Machakos and signed a document. 99. He confirmed that their mother required funds for treatment, which they used to give but they never discussed selling property to get her medicine. He was not aware of a family bank account where money would be put after sale of property. 100. He could not recall that kshs 300,000/= was given by his sibling to pay fees for his daughter. He agreed that there was money given by Zakayo to pay fees for his daughter but was not aware that it was from proceeds of the sale of the property that was sold. He was aware he was to repay the money. 101. He said he had given Konza/South Block 7/Kima 1897 to himself because it was sold illegally. He said he had not checked whether it was in the name of the deceased, but confirmed that it was not in the deceased’s name. 102. He said he believed that Konza plot No. 896 which he had allocated to Grace Muvoye existed but that he had not attached the search certificate. He also said that he believed that Konza plot No. 932 existed in name of deceased. He had not confirmed whether Machakos/Konza market/Block 1/321 existed in the deceased’s name. Regarding Ukia/Kilala/112, he agreed with the distribution by David. He disagreed with the rest of the distribution equally between boys and girls as not being fair because it had not accounted for those who had stolen some of the assets. 103. Regarding the distribution by the 2nd house as proposed by Simon Mbevi, he said that he had a problem with 321 because Simon’s mother participated in its sale 104. He agreed that he had assigned himself almost ½ of 637, 624 – 3 acres in full, 1897 Konza and plot No. 12A Ukia but denied that by this he would get more than anyone else if his proposal is adopted. 2nd Administrator’s Case – David Sila Mulinge 105. He adopted his affidavit sworn on 04/07/2023 as his evidence. 106. He also testified that in 2020, they had a family meeting presided over by Zakayo Mbevi and agreed on the proposed distribution. He refuted claims that Jonah and Willy were given this property at their wedding. That, they were ten in number and each of them was given cattle. That, if they had been given the land, they would have had transfers. 107. He testified that Konza properties were sold by their parents and they could not change that decision as doing so would invite a curse. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4248/eng@2026-02-20 18

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108. On cross-examination by Mr. Simiyu for the 3rd Administrator, he said that the deceased had 10 children with each wife. That, he had not included children of the 2nd house as the matter concerned the 1st house only. That, some of his siblings had passed on but he had identified their children. He said he did not know the number of children of the late Paul- his family had 2.5 acres in Ukia/Kilala/112. 109. His testimony was that his father gave the newlyweds a cow. 110. He said that he has given Konza North Block 2/321 to Luis Nzisa Kitulu because the wives of the deceased Voethe Kalunde Mbevi and Esther Mbenge Mbevi sold the property to Luis. 111. He said that he had built on Ukia/Utaati/637 on about ½ acre; That his house was next to parents. That, their parents’ 4 bedroomed house was built in mid 80s but James Mwema Mbevi, Paul Musau Mbevi and William Ngenda Mbevi did not contribute to the construction. 112. He confirmed that he had one bedroom, another one for Jonah, another for their mother and the other for guests/sisters. That, William had no room there but he was holding the key to the house. That, he (David) built his house in 2009 in addition to the room in mother’s house. He confirmed that there were proceedings in Machakos when he built his house. 113. When asked whether he was familiar with Kamba tradition on who remains in the family homestead, he answered; “Mtoto wa mwisho akae na mama” (the last-born child to stay with the mother) and that that their last born is Jonah Mbevi. 114. He confirmed that he was a beneficiary of Shop No. 12 A at Ukia market. That, the family held a meeting and agreed that the same should be sold to him. That, Dorothy Mbithi was absent with apology and James was a rebel from the beginning. He agreed that the minutes did not capture that James was absent without apology. 115. That, the meeting was specific for the 1st family and was attended by 9 of the 10 children. 116. He said that Chauni Investment Ltd is a family company but he could not remember the shareholders. He confirmed that Konza South Block 7 (Kima) 1897 - 2 acres belongs to Chauni Investments Ltd, having been sold by the owners– Voethe Kalunde and Esther Mbenge Mbevi. That, he didn’t know where Voethe and Esther got the land before they sold it. He could not recall how much was paid by Chauni. He said that the officials of the company should have been called to answer the questions as he is just a member. That, their chairman is Musau Mbevi, the son of Paul Mbevi. 117. On cross-examination by Ms. Munyiva for Jonah Kyalo Mbevi, he said that both houses had 20 beneficiaries but the list of distribution had 17 because some members of the 2nd family denounced. He said that the affidavit of James sworn on 07/07/2023 had included all siblings from both houses. 118. He said that he was in his late 50s in 2013 and agreed that he had not attached any record to show that their mother was sick. He was referred to the last page of minutes which states “Another issue Jonah raised is for his farm (Uiyuini)”. When told that the family was aware that the property was Jonah’s, he said that Jonah had a portion of that land to live while waiting for succession and was aware that it was a portion. He agreed that the minutes do not say portion. 119. With regard to the sale agreement, he said that he wrote a cheque and when asked about evidence, he said that he paid and there was acknowledgement by two signatures. He agreed he had no receipt. That, they sat in the meeting on 03/08/2013 and the minutes were signed on 19/10/2013 by Chairman William Mbevi, Beatrice Ndolo. He agreed that minutes are signed in the next meeting after the members confirm. He agreed that the agreement for sale was made before minutes were signed. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4248/eng@2026-02-20 19

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120. He said that when Jonah turned down 637, he was told to go to 624 in the late 90s by their mother. That, he was told to stay with mother in 637 but he turned it down. That, as the 2nd last born, he (David) was told to go there and Jonah was told to go to 624. That, Jonah was told to occupy a portion of 624. He agreed that he has visited the place and there is a stone foundation and a complete brick house. That, at the back end, there are orange trees, mango trees and a portion that is not utilized. 121. With regard to shop No. 6, he allocated to William but the family did not want to pursue the matter so they left it to court. That, kwa Katheka No. 74. is not part of deceased’s property and they did not have anything to show it was his property. That, he has built his home on 637. That property bordering Ukia Primary School belonged to his nuclear family and was allocated to his son, That, he proposed to give the house on 637 to Beatrice. 122. When asked whether Jonah had a key to the gate where he (David) has built, he said that it is never locked. 123. With regard to Machakos/Konza 321, he stated that there was sale agreement dated 1997 but that the sellers had no grant at the time of sale. When asked who the other members of Chauni were he said he only knew the chairman to be Kyalo Mbobu who was also his nephew. 124. He could not recall whether his mother was deceased by 2009. That, right from day one, his father decided property for each household. That, the 2nd family had its own property and everyone knew the deceased’s property. 125. David said that he did not know the value of the property at Chauni. 126. He was cross examined by Ms. Mwangi and confirmed that he was a member of Chauni Investment but did not know his shares. 127. On cross-examination by Mr. Mbindyo for the Interested Party, he said that Konza North Block 1/321 was sold to Loise Kitulu by their two mothers. That, he was told about the sale late but had no objection and his siblings had no objection. 128. T he Interested Party- Tito Musyoka Kitulo adopted is affidavit sworn on 28/03/2023 as his evidence. 129. On cross-examination by Mr. Simiyu for 3rd Administrator-James Muema Mbevi, he said that the sellers in the sale agreement (TMK2) are Voethe Kalunde Mbevi and Esther Mbenge Mbevi. He recalled that in clause 5, the agreement acknowledged that John Mbevi Mulinge had passed on. That, the land – Machakos Konza North Block 1/321 was registered in the name of John Mbevi Mulinge at the time of purchase. 130. On cross-examination by Ms. Munyiva for Jonah Kyalo Mbevi (protestor), he said that the payment was made to Voethe and Esther. He confirmed that not all beneficiaries signed the notice. He confirmed that the consent was not signed by all beneficiaries. 131. On further cross -examination by Ms. Mwangi for Jonah Kyalo Mbevi, he said that he was not aware that the deceased’s estate had 8 beneficiaries by then. He confirmed that he saw the list of the beneficiaries which had not been signed. He thought the mothers had signed for their families. He did not know the beneficiaries. He was aware that 3 have not signed the distribution list. When asked whether the sale was legal without their signatures, he answered in the affirmative because he dealt with the two mothers who signed. He said he did not know why the land was not was not transferred to the mothers’ names. 132. The case was closed at that juncture and parties agreed to file submissions. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4248/eng@2026-02-20 20

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133. On 29/08/2024 when the matter came up for mention to confirm filing of submissions, Mr. Mbindyo for the Interested party informed court that he had filed a preliminary objection on 26/08/2024 with respect to jurisdiction of this court in regard to Machakos Konza North Block 1 /321. Parties were directed to file their responses to the issue as well so as to save judicial time of writing two rulings in the matter. The Submissions Submissions by James Muema Mbevi-Protestor/3rd Administrator 134. 135. 136. Through the firm of ASW Law Advocates LLP, it was submitted that David Sila Mulinge was untrustworthy in his testimony by virtue of his inconsistency and plain lies as follows; a. He disputed that his late father gifted a portion of land parcel Ukia/Utaati/624 to James Muema Mbevi at his wedding in 1969 but during cross examination, admitted that he was only 11 years old at the material time and could not recall what transpired during the wedding. b. He was adamant that it was not the custom of his father to gift land as wedding gifts to his sons but during cross- examination, he admitted that he was too young to tell. c. Feigning ignorance of the membership of Chauni Investments Ltd, a company that purportedly purchased part of the deceased’s estate from the mothers during the pendency of the present proceedings and admitting during cross- examination, that; i. He was a member of the company and his brother James Muema Mbevi was not; ii. He was not aware whether Chauni Investments Ltd paid any purchase price with respect to the alleged purchase of Konza South/Block 5(KIMA) 1897 (2 acres); iii. There was no evidence on record of any payments made by the company. d. Disputing any contribution by William Ngenda Mbevi to the construction of his mother’s house without any evidence of any other contribution. e. Accepting that under Kamba customs, the last-born son in this case Jonah Kyalo Mbevi, would inherit the mothers homestead hence Jonah was entitled to Ukia/Utaati/637. f. He contradicted himself regarding his occupation of Ukia/Utaati/637 The issues for determination were identified to be; a. Whether the summons for confirmation should be issued as per the schedule of distribution by the 2nd Administrator David S. Mulinge. b. What orders should this honorable court issue in the circumstances? On the first issue, it was submitted that the deceased was polygamous hence section 40 of the Law of Succession Act (the Act) is the guiding provision in distribution of his estate. Reliance was placed on the following cases; a. Mary Rono -vs- Jane Rono & Anor (2005) eKLR where the Court of Appeal- Judgment of Waki JA stated; “ While I do not doubt the discretion donated by the Act in matters where dependents seek a fair distribution of the deceased’s net estate, I think the discretion https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4248/eng@2026-02-20 21

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like all discretions exercised by courts, must be made judiciously or to put it another way, on sound legal and factual basis. The fact that girls in any particular family may be married is only one factor among others that may be considered in exercising the courts discretion. It is not a determining factor.” In the same case. Omollo JA stated; “ My understanding of that section is that while the net intestate estate is to be distributed according to houses, each house being treated as a unit, yet the judge doing the distribution still has a discretion to take into account or consider the number of children in each house. If parliament had intended that there must be equality between houses, there would have been no need to provide in the section that the number of children in each house be taken into account.” b. Kilonzo -vs- Kilonzo & Anor (Civil Appeal E351 of 2021) [2024] KECA 354 (KLR) (12 April 2024) (Judgment) where the Court of Appeal (SG Kairu, P. Nyamweya & PM Gachoka JJA) stated; “ 11. In our view, parties need to understand that the distribution of an estate is not a mathematical exercise. A court of law dealing with the distribution of an estate has the discretion to ensure fair distribution is done, but the discretion has to be exercised judiciously based on sound legal and factual basis. In addition, the circumstances of each case have to be considered taking into account inter alia, the number of houses; the number of children in each house; the circumstances of each beneficiary; and any gift that may have been given to a beneficiary during the lifetime of deceased but always bearing in mind that the factors to be considered cannot be exhaustive. Of paramount consideration in the exercise of discretion in distribution is to ensure justice is done so that there is no blind application of section 40 of the Law of Succession Act.” 137. This court was invited to find fault in the proposal of David S. Mulinge for reasons that; the schedule of assets & list of beneficiaries were incomplete, and by assigning part of the property to non-beneficiaries would disinherit bonafide beneficiaries. 138. It was submitted that a complete list of beneficiaries would contain 22 names being two wives and 20 children yet paragraph 5 of David’s affidavit contained only 17 names meaning that 5 beneficiaries have been omitted from the estate. It was contended that disinheriting 5 children is tantamount to discrimination contrary to Article 27 of the Constitution of Kenya. Reliance was placed on the case of re Annah Nenchungei Koikai (Deceased) [2021] KEHC 1056 (KLR) where the court (Gikonyo J) stated; “ (40) The above recapitulation of relevant jurisprudence justifies a conclusion that renunciation of right to inheritance is a serious matter of property right as the person gives up his or her share of the estate property. Accordingly, it should be declared voluntarily and unequivocally- orally or through formal document. It must not be procured through fraud, duress, coercion, threat or inducement of any kind or any other unlawful manner. Notable element in majority of the cases I have encountered is that renunciation of right to inheritance has been claimed to disinherit women. Thus, bringing loathsome https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4248/eng@2026-02-20 22

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patriarchy and traditional practices over rights of women to property, which is unfortunate, unlawful and unconstitutional tendency. I may even call it stealth suppression of or force upon right of women to inheritance. Any such kind of ‘’renunciation of right’’ should be suppressed with the mighty force of the law; using the sledge hammer; article 27 of the Constitution which prohibits any form of discrimination, inter alia, on the basis of gender, sex or status.” 139. It was submitted that the above position was earlier on underscored by this court (as presently constituted) in re Estate of Muthoni Kanyua (Deceased) (2018) eKLR; Nyeri High Court Succession Cause No. 502 of 2013; thus; “ ….the fact of the matter is unmarried or married, that is neither here nor there. The only ground would be renunciation of the right to inherit. And that applied equally to both the males and female children.” 140. It was submitted that this proposal had omitted properties in Konza Cooperative putting the beneficiaries at risk of being locked out of benefiting from assets that rightfully belong to the estate of the deceased. 141. It was submitted that Machakos Konza North Block 1/321 should be made available for distribution; that land parcel No. Machakos Konza North Block 1/321 appears to have been sold by Voethe Kalunde Mbevi and Esther Mbenge Mbevi who were not the registered owners of the said parcel prior to the confirmation of grant without leave of court; that the purported sale amounts to intermeddling with the estate as per section 45 of the Act. Reliance was also placed on section 82 of the Act for the submission that personal representatives are prohibited from selling the deceased’s immovable property prior to confirmation of grant. 142. The court was urged to adopt the proposal in paragraph 3 of the affidavit of James Muema Mbevi which contains all beneficiaries and discloses all assets. 143. It was submitted that Ukia/Utaati/624 should be assigned to James Muema Mbevi as there was overwhelming evidence to show that the deceased gifted him the parcel during his wedding. That, the deceased’s wife, Esther Mbenge Mbevi, also swore an affidavit on 29/03/2021 indicating that the parcel was assigned to James Muema Mbevi. It was contended that none of the parties present challenged the contents or accuracy of the averments and that none of the parties sought to cross-examine her on the correctness of the affidavit. That, Jonah Mbevi also claimed the same property but admitted, in crossexamination, that he was gifted by a person other than the deceased. Reliance was placed on re Estate of Samuel Kinyowe Nzau (Deceased) [2021] KEHC 2849 (KLR) where the court (Kemei J) stated; “ 28. Based on the evidence on record, it is clear that there are properties that have been omitted in the distribution. The Petitioner and the respondents seem to have admitted that there are properties which were omitted and are willing that they be shared equally if available for distribution. 32. In the result it is my finding that the protestor’s protest has merit. The same is allowed. The following orders are hereby issued: a. The proposed mode of distribution presented by the petitioner/1st respondent is hereby struck out. b. The petitioner/1st respondent is directed to meet all beneficiaries and agree on an acceptable mode of distribution and thereafter https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4248/eng@2026-02-20 23

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file a supplementary affidavit annexing the mode of distribution of all assets of the deceased to all beneficiaries in the estate together with a signed consent by all beneficiaries within sixty (60) days from today. c. 144. 145. Upon compliance of (b) above, the petitioner/1st respondent to set down the summons for confirmation of grant on priority basis.” Further reliance was placed on re Estate of Kahiga Mwathi (Deceased) [2021] KEHC 6438 (KLR) where the court (Muchemi J) stated; 36. In conclusion, I find that the learned magistrate in his judgement failed to address the issues raised by the appellant in her protest regarding L.R Aguthi/Gaki 1777. I find further that the magistrate erred in holding without evidence that the appellant was given kshs.300,000/- by the deceased and by going further to hold that the said amount was sufficient share for the appellant in the estate. The court also erred in disregarding the appellant’s evidence in regard to the assets that were omitted in the list of assets which are a demonstration of bad faith on part of the respondent. 37. It is my finding that this appeal is merited and I hereby allow it accordingly. I hereby set aside the judgment of the Senior Principal Magistrate delivered on 10th December, 2019. In conclusion, this court was invited to be persuaded by the proposed distribution in the affidavit of James Muema Mbevi sworn on 07/07/2023. Submissions by Jonah Kyalo Mbevi (Protestor) 146. Through the firm of Auta Nyakundi & Co. Advocates, the issues for determination were determined to be; a. Whether the summons for confirmation should be confirmed as per the schedule of distribution by the 2nd Administrator David Mulinge. b. Whether the beneficiaries of the estate should take up the properties they have been utilizing prior to the conclusion of these succession proceedings. 147. On whether the certificate of confirmation of grant should issue as per the proposal of David S. Mulinge, it was submitted that the deceased was polygamous hence section 40 of the Law of Succession Act (the Act) is the guiding provision in distribution of his estate. 148. It was submitted that that exclusion of a beneficiary from succession proceedings amounts to concealment of material facts and is a valid ground for revocation of grant. See Benson Champu Kaparewo -vs- Rabeca Chepkuto Kiperenge (2019) eKLR. 149. It was submitted that according to the evidence of the 3 rd Administrator, James Mbevi, the family was not aware of any sale of Konza properties hence they should form part of the deceased’s estate. This court was urged to note that the property known as Konza South Block 7 (Kima) 1897 measuring approximately 2 acres was sold to Chauni Investments in which David Mulinge is one of the directors. That, he was evasive as to the particulars of the transaction and claimed not to know the purchase price. 150. It was submitted that an official from Konza Cooperative testified that the deceased’s properties in the cooperative society automatically devolved to the deceased’s widows but he did not furnish the court with any documentation to support the heft assertion. That, the by-laws of the company were https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4248/eng@2026-02-20 24

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not produced to assist the court. Reliance was placed on re Estate of Moses Wachira Kimotho (2009) eKLR where the court observed; “ Further, had the Respondent been forthright and candid and included the applicants as beneficiaries of a portion of the estate of the deceased as purchasers for value, the court in confirming the grant would have taken into account their interest in the estate of the deceased. She also ignored them completely when she applied for the confirmation of the grant.” 151. 152. It was submitted that the following properties were illegally transferred to some beneficiaries and/or acquired by third parties; a. Machakos/Konza Block 1/321 sold to Luis Nzisa Kitulu, the Interested Party. b. Plot No. 6 Ukia Market transferred to William Ngenda Mbevi, a beneficiary. c. Konza South Block 7 (Kima) 1897 transferred to Chauni Investments Ltd. d. Ukia/Utaati Plot 12A sold to David Sila Mulinge, a beneficiary. It was submitted that the sale of the above properties amounts to intermeddling as it was done before confirmation of grant. Reliance was placed on the following cases; a. Morris Mwiti Mburugu -vs- Denis Kimanthi M’Mburugu [2016] KEHC 5639 (KLR) where the court (Mabeya J) stated; “ 23. b. re Estate of Erman Bundotich Arap Cheptoo (Deceased) [2022] KEHC 1237 (KLR) where the court (W. Korir J-as he then was) stated; “ 31. 153. From the foregoing, it is clear, and I so hold, that where any person interferes with the free property of the deceased or deals with an estate of a deceased person contrary to the provisions of sections 45 and 82 of the Act, that is intermeddling, is unlawful and cannot be protected by the court. The transaction is subject to be nullified and set aside at the instance of the innocent beneficiaries who may have been affected by the act but were not involved in the same.” 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. It therefore follows that in the absence of a grant, Ezekiel had no authority to purport to distribute the estate of Erman. Even where there is only one surviving beneficiary, like in this case, succession proceedings must be conducted in order to give that beneficiary the legal authority to transact in the property of the estate of the deceased person.” It was submitted that the interested party was unable to explain why Machakos/Konza Block 1/321 was not transferred to his mother after purchasing from the deceased’s wives. It was contended that leave of court was not sought by the vendors as required by law hence they had no property to sell https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4248/eng@2026-02-20 25

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and conferred no good title to the purported buyer. Reliance was placed on re Estate of Jamin Inyanda Kadambi (Deceased) [2021] KEHC 4513 (KLR) where the court (Musyoka J) stated; “ 22. 154. A valid sale of estate property can only be by those to whom the assets vest by virtue of section 79, and who have the power to sell the property by virtue of section 82. Even then, immovable assets, like land, such as Kakamega/ Kegoye/30, cannot be disposed of by administrators before their grant has been confirmed, and if land has to be sold before confirmation, then leave or permission of the court must be obtained. That is the purport of section 82(b) (ii) of the Law of Succession Act. Clearly, the sale transaction that was carried out by the administrators was contrary to sections 45 and 82(b)(ii) of the Law of Succession Act, and was invalid for all purposes. It cannot be asserted at all, and am surprised that persons to whom administration of the estate herein can purport to support a sale transaction that was carried out contrary to the very clear provisions of the law.” Further reliance was placed on re Estate of Barasa Kanenje Manya (Deceased) (Succession Cause 263 of 2002 [2020] KEHC 1 (KLR) (30 July 2020) Ruling where the court (Musyoka J) stated; “ Entering into contracts over estate assets would include converting estate assets by way of sale. However, section 82(b)(ii) of the Act outlaws sale of immovable assets of an estate before the grant has been confirmed. That would mean that any such sale would be unlawful and unenforceable, unless it happened with leave of the court…… The only remedy available to the buyers, with regard to the two transactions, is to pursue the person who purported to sell the property to them……However, from the facts presented, and the discussion above, it is clear that they do not fall within the category of creditors or liabilities, for the reasons given above. They have no role nor place in the succession cause, to warrant their being joined to the cause as interested parties, or in any other capacity for that matter. Their remedy lies in suing David Wafula Kanenje, or his estate, to either recover the land that he sold to them, or for refund of the purchase money that he received from them……Disputes on ownership of or title to land are not suitable for determination within a succession cause.” 155. It was submitted that the sale agreement entered into between the interested party and widows of the deceased is null and void and cannot be endorsed by this court. 156. It was submitted that Ukia/Utaati Plot 12A was sold illegally to David Sila Mulinge hence it should form part of the deceased’s estate. That, David admitted lack of evidence to show that money was put in the Administrators account. Reliance was placed on Trust Bank Ltd -vs-Paramount Universal Bank & 2 Others (2009) eKLR where the court held; “ Where a party fails to call evidence in support of its case, that party’s pleading remains a mere statement of fact since in so doing the party fails to substantiate the pleading.” 157. It was contended that not all parties consented to the sale of plot 12A as admitted by David Mulinge during the hearing. That, there was no evidence to show that the money sought by the family was for the payment of the deceased’s 1st wife medical bills, as alleged. That, the alleged sale agreement was prepared before the alleged meeting took place hence raising a question as to how the plot was sold before the meeting. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4248/eng@2026-02-20 26

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158. As to whether the beneficiaries should take up the properties they have been utilizing prior to conclusion of these proceedings, this court was urged to allow the beneficiaries to keep the properties they have been utilizing. 159. It was submitted that Mr. Kyalo’s testimony was that he had been utilizing part of Ukia/Utaati/624 for a period of over 27 years and he had planted fruit trees which had been sustaining him and the family. That, he had also started constructing his family home and did not have a proper place to call home since his mother’s house was locked by his brother, William Ngenda. Reliance was placed on Jane Nyambura Ndung’u -vs- Beatrice Wangari Ndungu 2 Others [2021] eKLR for the submission that section 40 of the Act is not a magic pill which can be applied to resolve all issues pertaining to distribution of a deceased’s person estate. Further reliance was placed on Scholastica Ndululu Suva vs- Agnes Nthenya Suva (2019) eKLR where the Court of Appeal stated; “ It is therefore evident that although section 40 of the Law of Succession Act provides a general provision for the distribution of the estate of a polygamous deceased person, the court has discretion to take into account factual circumstances of the particular case that may be relevant in ensuring equitable and fair distribution of the estate.” 160. It was submitted that Mr. Kyalo’s usage of Ukia/Utaati/624 had been supported by his siblings as evidenced by the minutes of the family meeting held on 03/08/2013. That, Mr. Kyalo took action by filing Makueni ELC No. 4 of 2020 to seek recourse against the cruel destructive actions of his older brother. 161. The 3 rd Administrator’s claim of Ukia/Utaati/624 based on an affidavit sworn by his step-mother, Esther Mbenge Mbevi, was challenged for the reason that he was not the maker of the document as per section 35(1)(b) of the Evidence Act. That, he did not explain where the original letter was and if indeed, he was the maker, it was expected that he would have retained one of the originals. That, in the absence of the original document, the witness was duty bound to lay a basis for its production to the satisfaction of the court. The court was urged to disregard the affidavit by Esther Mbenge Mbevi. 162. It was submitted that the affidavit of protest by Simon Musyoka Mbevi was incomplete as it identified only some beneficiaries and some assets of the estate yet he argued that it would be improper to confirm the grant for only part of the estate. Submissions by the Interested Party (IP) -Tito Musyoka Kitulu 163. It was submitted that the IP’s late mother purchased Machakos Konza North Block1/321 from the widows of the deceased on 07/07/1997 at a price of kshs 380,000/=. That, she took vacant possession in the month of August 1997 and put it to her open, uninterrupted use up to February 2019 when she passed away before transfer. That, thereafter, her beneficiaries took over possession and have continued to put the land into open, uninterrupted use to date over a period of over 26 years. 164. It was submitted that there exists a dispute on occupation, use and ownership of land parcel number Machakos Konza North Block l/321 and that the IP’s interest over the land is founded on purchase and adverse possession for being in open, uninterrupted and exclusive use of the land for over 12 years. It was acknowledged that the IP is not a dependent and is not claiming dependency. It was also acknowledged that this court’s Jurisdiction is to determine the estate of the deceased (the free property of the deceased person), the dependents and distribution of the estate to the lawful dependents. 165. It was submitted that the proper forum for determination of the dispute is the Environment and Land Court (ELC) as per section 13 of the ELC Act. That, the IP has already moved the Machakos ELC https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4248/eng@2026-02-20 27

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vide Case No. 018 of 2024 (OS) and that pursuant to rule 41(3) of the Probate & Administration Rules, this court had power to proceed with partial confirmation of grant which would uphold the IP’s fundamental right to hearing as enshrined in Article 50(1) of the Constitution. 166. The court was urged to set aside Machakos Konza North Block1/321 to abide the determination of the Machakos ELC. Submissions by the 2nd Administrator-David Sila Mulinge 167. Through the firm of M.M Kimuli & Co. Advocates, the court’s attention was drawn to the full list of survivors from the two households in the Affidavit of James Muema Mbevi sworn on 07/07/ 2023. 168. It was submitted that from the affidavits filed in court and evidence at the hearing, there was no dispute as to how each house had distributed its own share of the estate and that it is the 1st wife’s household that has issues on the distribution of their share. 169. It was submitted that during the oral hearing, the following came out clearly; a. That David S Mulinge has been in possession and use of Shop 12A since the year 2013 to date without any complaint or issue being raised by any of the beneficiaries; b. That David S Mulinge has been in occupation and use of a portion of parcel 637 since the year 2009 and he built his permanent home there without anyone raising any objection; c. That the 2nd Administrator has no objection to having Jonah Kyalo to move out of parcel 637 to swap places with Esther Mueni Mbevi at parcel 624; d. That the 4th Administrator is in agreement with the David S Mulinge to the extent that the parcels 1452 (Konza South block 7(Kima) 314), Commercial Plot 932 (Konza South Block 7 (Kima) 1897) and Konza North Block 1/321 are not in the name of the deceased and/or are not available for distribution in these proceedings; e. That the 4 th Administrator has no objection to having Plot 12A given to David Mulinge; f. That the 3rd Administrator admitted that Konza North Block 1/321 is currently in the name of Tito Musyoka Kitulu; g. That the 3rd Administrator admitted that parcel 932, parcel 74 and parcel 1452 are all sold and are in the names of other parties, not the deceased; h. That the 3rd Administrator and Jonah Kyalo (Protester) agree with the 2nd Administrator’s proposal on distribution of parcel Ukia/Kilala/112; i. That the protester, Jonah Kyalo, admitted that he knew that by the time of sale of parcel 321 to the Kitulu family, the shares and property were already in the names of the deceased’s widows; j. That Jonah Kyalo admitted that some of the properties that he has allocated in his proposed schedule of distribution are not in the deceased’s name; k. That the Secretary of the society confirmed that none of the properties at the Ranch belonged to the deceased and that some of the properties listed by the protesters were not found in the Society’s records at all. l. That the 3rd Administrator admitted that despite being made an Administrator in 2021, he had never sued any of the people who had taken the properties one way or the other; https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4248/eng@2026-02-20 28

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m. That it is evident that the deceased’s 1st wife had been sick and it is very probable that land would have been sold to cater for her medication, nurse and other requirements as explained by David S Mulinge (the reason why he purchased Shop 12A); 170. It was submitted that despite attempts to discredit the schedule of distribution proposed by the 2nd Administrator, the proposal has stood the test and should be upheld by this Court. That, it is the fairest, most objective and most balanced compared to all the affidavits filed by the protesters. On the other hand, it was submitted that the protesters’ proposed schedules were grossly and deliberately misleading and grossly malicious and unfair since they included and even apportioned several properties that do not even exist and those that do not belong to the estate. 171. That, if their proposed schedules are upheld, some beneficiaries will get nothing at all and others will be rendered destitute upon being uprooted from where they have been settled. That for Jonah Kyalo, it was clear that his only interest is in getting a share in the property known as Ukia/Utaati/624 and contrary to what he stated in his proposed schedule, he is no longer interested in getting a share of Ukia/Utaati/637, where his deceased parents used to live. That, owing to this new development, the 2nd Administrator now proposes a slight change to the schedule so that under parcel 637, where Jonah Kyalo had been allocated 0.75 Acres, he is now transferred to parcel 624 with the same share, and then Esther Mueni Mbevi is transferred from 624 to parcel 637 with same share. 172. It was conceded that Machakos/Konza North/Block I/321 had already been sold to one Luis Nzisa Kitulu back in 1997 and it is only fair that the property be transferred to that family. 173. The 2 nd Administrator conceded to the mode of distribution proposed by the 1st and 4th Administrators on the ground that they have fully dealt with the household of Esther Mbenge so far as the properties allocated to their house was concerned. That, the only issue to be raised was the allocation of Commercial Plot No. 932 at Konza which it is proposed to be allocated to David Sila Mulinge. That, this property no longer forms part of the estate of the deceased as it was sold and is already registered in the name of a third party known as Chauni Investment Limited. That, even the schedule of Konza properties that was produced by the Secretary of Konza Ranching & Farming Society shows that the said property (also known as Konza South Block 7 (Kima) 1897) is not in the name of the deceased. That, the property is therefore not available for distribution as it stands and cannot be allocated to David S Mulinge as proposed. 174. In rejoinder to the 3 rd Administrator’s submissions, it was submitted that there seems to be a dispute, between James Mbevi and Jonah Mbevi, as to who was gifted a portion of parcel number Ukia/ Utaati/624 by the deceased parents. That, neither of them has presented any concrete evidence to confirm their assertions. It was submitted that parcel Ukia/Utaati/624 is still in the name of the deceased and should be distributed without regard to the alleged gifts. 175. It was submitted that Plot number 74 at Konza was not maliciously omitted from the list of distribution as the property is not available to the estate since it was already sold by the deceased. That, this position was confirmed by the secretary of the society. 176. It was submitted that indeed the deceased had rightly shared out his properties to the 2 households while he was still alive and it is on that basis that now the estate is being distributed to the beneficiaries while considering where each one is settled in order to minimize any disruptions. That, while the 3rd Administrator claimed to have disclosed all the beneficiaries and all the properties, most of the properties, are not in the name of the deceased and cannot form part of the estate. That, the beneficiaries are therefore being cunningly deceived by being given non-existent properties. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4248/eng@2026-02-20 29

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177. It was contended that the alleged Affidavit by Esther, the 1 st Administrator, was never filed in this cause and it is questionable as to where, how, why and under what circumstances the affidavit was prepared. That, in any event, Esther is alive and ought to have been brought to testify and own the affidavit which was allegedly sworn recently in 2021. 178. In rejoinder to the submissions by Jonah Kyalo, it was submitted that the official from Konza ranch was the Protester’s witness and not the 2nd Administrator’s witness. That, the protesters cannot turn around and disown him now just because he did not support their case in his testimony. 179. It was submitted that during the hearing, Jonah admitted that his mother had been sickly and required medical attention hence he could not now turn around and assert the contrary. That, he was oscillating between asking for a share of parcel 637 (in his schedule of distribution) and insisting that he wants a portion of parcel 624 (as strongly submitted in his submissions). That, in the circumstances, he should now exchange his place at parcel 637 for an equal portion at parcel 624 so that he trades places with the assigned beneficiary. 180. It was submitted that there was no illegality in selling Konza Ranch properties. That, the secretary of the society confirmed that once the owner of the properties or shares died, the properties or shares automatically devolved to the next of kin as disclosed by the deceased. That, in this case, the deceased’s properties and shares, by the regulations of the Society, went to the 2 wives of the deceased who had been listed as the next of kin. That, once the properties were in the names of the deceased’s widows, they legitimately owned the properties and could therefore dispose them off as they wished. That, this applied to Konza South Block 7 (Kima) 1897 (Commercial Plot No. 932) and Machakos/Konza North/Block 1/321. 181. It was submitted that David S Mulinge had not omitted names of some beneficiaries but had legitimate and genuine belief that they were not interested in a share of the estate and, in any case, he could not have been in a position to distribute the properties of that household. 182. Regarding alleged omitted properties, it was submitted that most of the properties alleged to have been left out were properties at the Konza Ranch that no longer belonged to the deceased. That, it was confirmed by the secretary of the Society that the numbers of the plots were duplicated as each plot has a ballot number and a title number, and some were nonexistent. 183. In conclusion, it was submitted that the deceased died intestate and left two households surviving him and as such, this court should be guided by section 40 of the Act. Issues for determination 184. I have set out the evidence and submissions in detail. I have considered the summons for confirmation of grant, the affidavits of protest, and the responses. The following issues arise for determination; a. Whether this court has jurisdiction to distribute the property known as Machakos Konza North Block1/321. b. Which assets are available for distribution? c. How should the deceased’s estate be distributed? https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4248/eng@2026-02-20 30

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Analysis and Determination Whether this court has jurisdiction to distribute the property known as Machakos Konza North Block1/321. 185. A Preliminary Objection (P.O) dated 26/08/2024 was filed by the firm of Mbindyo & Co. Advocates on behalf of the IP on grounds that; a. b. This Honourable Court does not have the jurisdiction to determine the dispute in line with the following provisions: i. Article l65(5)(b) of the Constitution as read with Article 162(2)(b). ii. Section 13 of the Environment and Land Act No.19 of 2011. iii. Section 2 and 101 of the Land Registration Act No.3 of 2012. iv. Section 2 and 150 of the Land Act No.6 of 2012. The Honourable Court ought to invoke the provision of Rule 41(3) of the Probate and Administration Rules, appropriate and set aside Land Parcel Number Machakos Konza North Block 1/321, to abide the determination of HC ELC No. E01B of 2024(0.S)-Tito Musyoka Kitulu and Jackson Mutua Kitulu-vs- Esther Mbenge Mbevi, James Muema Mbevi and Simon Musyoka Mbevi(The Administrators herein) filed under Order 37 Rule 1 of the Civil Procedure Rules. 186. Directions were given that the P.O be canvassed through written submissions and the only submissions on record are for 1st and 4th Administrators and 2nd Administrator. 187. The 1st and 4th Administrators submitted that when the deceased passed on, the property was not yet registered in the names of the two widows and titles for the same had not been issued yet. That, the records for the property were held by the Society and were in the name of the deceased. That, the transfer to the widows and subsequent registration and obtaining of a title in their names happened after the death of the deceased. 188. Consequently, it was submitted that the property ought to be administered and/or adjudicated upon within the proceedings in respect of the estate of the deceased. It was contended that the sale did not constitute intermeddling in the deceased’s estate as it was made in anticipation of succession proceedings. That, this court should therefore distribute the entire estate of the deceased including the property number Machakos Konza North Block 1/321 which is to be registered in the name of the interested party. 189. The 2 nd Administrator submitted that the 2 widows of the deceased were fully dependent on him in his lifetime and continued to depend on his estate to raise their respective families and meet their own day to day needs after his death. That, it would be preposterous to think or suggest that they ought to have remained destitute and poor or suffered and died while the estate has property. 190. It was submitted that when the Secretary of the Society testified in Court, he confirmed that, under the Society’s scheme, once the owner of the properties or shares died, the properties or shares automatically devolved to the next of kin as disclosed by the deceased. That, in this case, the deceased’s properties and shares, by the regulations of the Society, had devolved to the 2 wives of the deceased who had been listed as the next of kin. That, even before any change of documentation could take place, the widows had already gained beneficial ownership and interest in the property. That, they legitimately https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4248/eng@2026-02-20 31

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and beneficially owned the properties and could therefore dispose of their beneficial interest in the properties. 191. It was submitted that even if the Court is to distribute it now, the property can only go to the widows who were disclosed to the Society, as next of kin, by the deceased when he was alive. That, the deceased had made a choice. That, since the 2 widows inherited the property jointly from their late husband, they owned it jointly and upon demise of the 1st wife, the 2nd wife automatically took over as the surviving joint owner and the interest was now vested in her. Consequently, it was submitted that Esther Mbenge is the one who has the duty to complete the transaction with the purchaser. 192. The 2nd Administrator’s proposal is that since it is not disputed that the land known as Machakos/ Konza North/ Block 1/321 was sold and that, since the purchaser has been in occupation and use for about 27 years without interruption from any of the beneficiaries, this Honourable Court ought to give this property to the 1st Administrator, Esther Mbenge Mbevi (being one of the sellers) and David S M Mulinge (representing the house of the late Voethe Kalunde Mbevi) for the purposes of accountability. That, the two will then conclude the transaction with the legal representative of the purchaser by transferring the land and none of the beneficiaries will get any loss. 193. The locus classicus in determination of a P.O is the case of Mukisa Biscuit Manufacturing Ltd -vsWest End Distributors (1969) E.A 696 which posits that a P.O must be a pure point of law which has been pleaded or which arises by clear implication out of pleadings and which if argued as a preliminary point may dispose of the suit. 194. The IP claims that his mother, the late Luis Nzisa Kitulu, bought the property from the wives of the deceased way back in 1997 at a cost of kshs 380,000/=. The 2nd Administrator submitted that the sale is not in dispute but it is evident from the Affidavits of protest by James Muema Mbevi, William Ngenda Mbevi, Michael Mutua Mbevi and Jonah Kyalo that the sale is hotly contested. The protestors’ position is that the Administrators had no power to dispose any part of the estate before confirmation of grant and without leave of court. 195. The secretary of Konza ranching society where the property is situated testified that the property is no longer in the deceased’s name but in the name of Tito Musyoka Kitulo. This testimony is flawed because the O.S filed by the IP in Machakos ELC seeks inter alia that the Administrators be compelled to execute the necessary documents to effect the transfer of the property to M/S Gedion Kitulu Investment Co. Ltd. This is a clear indication that the property is still in the name of the deceased. 196. It is therefore evident that there is a claim of ownership of Machakos/Konza North/ Block 1/321 between the estate and the IP. 197. Article 162 (2) of the Constitution of Kenya provides for the Jurisdiction of the Environment and Land Court (ELC) as follows; “ (2) 198. Parliament shall establish courts with the status of the High Court to hear and determine disputes relating to – (a) …….. (b) The environment and the use and occupation of, and title to land.” The jurisdiction and powers of the ELC court are clearly defined under Section 13 of the ELC Act, Cap 8D of the Laws of Kenya and pursuant to sections 26 (3) and (4) of the same Act, several magistrates were gazetted to handle land disputes. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4248/eng@2026-02-20 32

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199. In Re Estate of Stone Kathuli Muinde (Deceased) [2016] eKLR Musyoka J stated that; “ Such claims to ownership of alleged estate property, as between the estate and a third party, should be resolved through the civil process in a civil suit properly brought before a civil court in accordance with the provisions of the Civil Procedure Act and the Civil Procedure Rules. This could mean filing suit at the magistrates’ courts, or at the Civil or Commercial Divisions of the High Court, or at the Environment and Land Court. If a decree is obtained in such suit in favour of the claimant, then such decree should be presented to the probate court in the succession cause so that that court can give effect to it.” 200. There is also the case of Priscilla Ndubi & Zipporah Mutiga -vs- Gerishon Gatobu [2013] eKLR where the court stated; “ Applying the test of law in section 76 of the Law of Succession Act, the fact that there was an agreement between the deceased and the Applicant for sale of the suit land is important to these proceedings. It seems also that consideration may have passed between the two parties. I am aware that this court does not have jurisdiction to determine the validity or enforceability of the said agreement. Environment and Land Court does; it is the court which is constitutionally mandated to determine such matters.” 201. Consequently, the claim of interest in Machakos/Konza North/ Block 1/321 needs to be determined with finality before distribution. That claim cannot be determined by this court because it has no jurisdiction. Further, it is not in dispute that the I.P has already moved the Machakos ELC for determination of the same. 202. I find and hold that the P.O has merit. That property must be held in abeyance until the determination by the ELC Court. Which Assets are available for distribution? 203. 204. The 2nd Administrator identified the deceased’s assets to be; a. Shop No. 12A Ukia Market b. Parcel No. Ukia/Utaati 637 -2 acres c. Parcel No. Ukia/Kilala 112 -2.5 acres d. Parcel No. Ukia/Utaati 624 – 3acres e. Parcel No. Machakos/Konza North Block 1/321 f. Shop No. 6 Ukia Market In addition to the above-mentioned properties, the protestors James Muema Mbevi and William Ngenda Mbevi identified the following properties; a. Kwa Katheke Plot No. 74 b. Commercial plot No. 932 c. Konza South/Block 7 (KIMA) 1897 d. Konza Plot No. 896 https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4248/eng@2026-02-20 33

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205. e. Konza/South Block 7 (KIMA) 314 f. Konza Plot 614 g. Konza Plot No. 1452 h. Konza Commercial Plot Measuring 20FT X 100FT The Protestor Jonah Kyalo Mbevi identified the following properties; a. Ukia/Kilala 112 b. Ukia/Utaati 624 c. Kwa Katheke Plot No. 74 d. Konza South/Block 7 (KIMA) 1897 e. Konza Plot No. 896 f. Ukia/Utaati 21A g. Ukia/Utaati 637 h. Commercial plot No. 932 i. Parcel No. Machakos/Konza North Block 1/321 206. I have already found and held that Parcel No. Machakos/Konza North Block 1/321 is not available for distribution as its ownership is pending determination by the Machakos ELC Court. 207. The 2nd Administrator deponed that Kwa Katheke Plot No. 74 was sold by the deceased several years ago and is therefore not available for distribution. A letter dated 18/10/2022 from Konza Ranching & Farming Co-operative Society Ltd (Konza letter) exhibited by James Muema Mbevi shows that the property is in the name of the deceased. The secretary of Konza Ranching, David Mulo Katu Yaitha, is the author of the Konza letter and he testified that the records of the society show that plot 74 is in the name of the deceased. In the absence of a rebuttal from the 2nd Administrator, this property available for distribution. 208. The 2nd Administrator deponed that the properties referred to as Commercial plot No. 932 and Konza South/Block 7 (KIMA) 1897 are one and the same in that the number 932 is the ballot number while 1897 is the title number and that this property belongs to the deceased’s wives and cannot form part of the estate. Jonah Kyalo confirmed that he did not conduct any search to ascertain its existence as the property of the deceased. James Muema conceded that according to the Konza letter, the property was sold by Voethe Kalunde and Esther Mbenge to Chauni Investments Ltd (the Company) and a title deed issued in the name of the new buyer. The search certificate exhibited by the 2nd Administrator shows that a title deed was issued to Chauni Investments Ltd on 07/07/2017 and the title No. is indicated as Konza South/Block 7 (KIMA) 1897. 209. It was submitted on behalf of Jonah Kyalo that the sale of the property to the company was as a result of intermeddling hence the transaction should be nullified and the property be made available for distribution. Jonah is challenging the company’s title over the property hence placing the matter squarely under the jurisdiction of the ELC as per the provisions of Article 162 of the Constitution (supra). Consequently, nullifying the transaction that led to registration of the company as the title holder would be null ab initio for want of jurisdiction and would also be tantamount to condemning the company unheard. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4248/eng@2026-02-20 34

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210. James Mbevi, William Ngenda and Jonah Kyalo did not produce evidence to show that Commercial plot No. 932 is an independent property and the secretary David Mulo did not shed light on the issue hence, there is no evidence upon which this court can conclude that it is an independent property. I find and hold that Konza South/Block 7 (KIMA) 1897 is unavailable for distribution. 211. The 2nd Administrator deponed that the properties referred to as Konza South/Block 7 (KIMA) 314 and Konza Plot No. 1452 are one and the same in that the number 314 is the ballot number while 1452 is the title number. He deponed that this property belongs to the deceased’s wives and is not available for distribution. He exhibited a search certificate showing that the property was registered in the names of Esther M. Mbevi and Kalunde Mbevi on 24/05/2017 and the title No. indicated therein is Konza South/Block 7 (KIMA) 314. The Konza secretary testified that the property is in the names of the two widows but did not shed light on whether the properties are distinct or one and the same thing. According to his letter dated 18/10/2022, Konza South/Block 7 (KIMA) 314 and Konza Plot No. 1452 are in the same paragraph and are indicated to be different sizes . However, 4.249HA is about 10.499acres. It could be the same parcel of land as the acreage is written 10.8 acres. 212. In the absence of a title document to confirm that Konza Plot No. 1452 is a distinct property, this court cannot make a conclusion that the same is in existence. The available and sufficient evidence is with regard to Konza South/Block 7 (KIMA) 314 and it shows that the property is not in the deceased’s name hence unavailable for distribution. 213. With regard to Konza Plot No. 896 (30’ x 80), the letter from the secretary shows that it is in the name of the deceased and the secretary reiterated the same in his evidence in court. It is therefore available for distribution. 214. As for Konza plot 614 and Commercial Plot measuring 20ft x 100ft, the letter from the secretary shows that they are unknown and the secretary testified that they have no records of the two properties. The protestors indicated these properties in their affidavits but did not produce any evidence to show their existence. Consequently, these properties are unavailable for distribution. 215. With regard to Parcel No’s Ukia/Utaati 637, Ukia/Kilala 112 and Ukia/Utaati 624, the 2 nd Administrator exhibited search certificates showing that they are all in the deceased’s name. There was consensus among the parties that indeed the properties are in the deceased’s name hence available for distribution. 216. As for Shop No. 12A Ukia Market, the 2nd Administrator exhibited an allotment letter (DSM 7) showing that the same was allotted to the deceased in 1980. The evidence clearly brought out the fact that this property is divided into two for the two families and that the part for the 1st wife’s family is No.12 A and for the 2nd family is 12B. The 4th Administrator, Simon Musyoka Mbevi, from the second family confirmed this fact. The property is therefore available for distribution. 217. As for Shop No. 6 Ukia Market, no title document was produced and the 2nd Administrator deponed that it was secretly and fraudulently transferred to William Ngenda Mbevi but the 1st wife’s family had no issue with it remaining in William’s name despite the irregular transfer. 218. In the Affidavit of protest by Simon Mbevi Musyoka, the property Shop No. 6 Ukia Market is not included in the list of properties belonging to the 2nd family but in his evidence in court, he objected to the proposal that the same should be given to William Ngenda Mbevi. He contended that the claim of purchase by William was not supported by evidence and that there was nothing to show that he paid purchase price to Esther Mbenge Mbevi, the 2nd wife. Consequently, he testified that the same should be shared between the two households. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4248/eng@2026-02-20 35

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219. In view of lack of evidence to confirm existence of Shop No. 6 Ukia Market in the name of the deceased, this court cannot conclude that the same is available for distribution. 220. The upshot is that the available properties for distribution are; a. Kwa Katheke Plot No. 74 b. Konza Plot No. 896 (30’ x 80) c. Parcel No. Ukia/Utaati 637 -2 acres d. Parcel No. Ukia/Kilala 112 -2.5 acres e. Parcel No. Ukia/Utaati 624 – 3acres f. Shop No. 12A Ukia Market How should the deceased’s estate be distributed? 221. It is not in dispute that the deceased was polygamous and that his two wives sired ten children each hence the total number of beneficiaries is twenty-two including the wives. The current proceedings are majorly on the 1st wife’s household as the 2 nd household has agreed on how to share the property allocated to them. The 1st wife, Voethe Kalunde Mbevi and some of her children are deceased but the deceased children will of course be represented by their respective families. 222. In his evidence in court, the 2nd Administrator listed the 1st wife’s children as follows; 223. i. David Sila Mulinge ii. Serah Wambua iii. Dorothy Mbithi iv. Beatrice Ndolo v. Grace Mati (deceased) vi. Zakayo Nyamai Mbevi (deceased) vii. Paul Mbevi (deceased) viii. James Muema Mbevi ix. William Ngenda Mbevi x. Jonah Kyalo Mbevi Protestor Jonah Kyalo urged this court to be guided by the provisions of section 40 of the Law of Succession Act which provides as follows; (1) Where an intestate has married more than once under any system of law permitting polygamy, his personal and household effects and the residue of the net intestate estate shall, in the first instance, be divided among the houses according to the number of children in each house, but also adding any wife surviving him as an additional unit to the number of children. (2) The distribution of the personal and household effects and the residue of the net intestate estate within each house shall then be in accordance with the rules set out in sections 35 to 38. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4248/eng@2026-02-20 36

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224. The interpretation of the above section is that in a polygamous set-up, all the children and wives are considered as individual units whereupon the distribution to the existing households is determined by the total number of units. In our case however, the properties belonging to each household have already been determined and there is no dispute that the 1st wife is deceased. Consequently, the guiding provision is section 38 of the Act which provides that; “ 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.” 225. The use of the phrase ‘surviving children’ might appear to be locking out grandchildren of the deceased whose own parents are deceased but the jurisprudence from our courts is that such grandchildren are entitled to inherit directly from their grandparents by getting the share that would have been given to their parents. In the Matter of the estate of Veronica Njoki Wakagoto (Deceased) [2013] KEHC 1930 (KLR), the court (Musyoka J) stated as follows; “ Under Part V, grandchildren have not right to inherit their grandparents who die intestate after 1st July 1981. The argument is that such grandchildren should inherit from their own parents. This means that the grandchildren can only inherit their grandparents’ indirectly through their own parents, the children of the deceased. The children inherit first and thereafter grandchildren inherit from the children. 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. In this case, the applicant’s mother survived the deceased. She is the one entitled under Part V to inherit her mother, the applicant’s deceased grandmother. The applicant clearly has no claim under Part V so long as his mother survived the deceased.” 226. According to the guiding law therefore, all the children of the 1st wife are entitled to equal shares of the available assets. The practicality of that will however be determined by the prevailing situation as per the evidence adduced in court. As observed in Scholastica Ndululu (supra), ‘a court has discretion to take into account factual circumstances of the particular case that may be relevant in ensuring equitable and fair distribution of the estate.’ 227. Shop No. 12A Ukia Market is being claimed by David S. Mulinge on the grounds that the family sold it to him in order to raise funds for their mother’ medical care. He testified that the family resolved to sell the property in order to raise the said money and the first option was given to family members whereupon he purchased it at kshs 500,000/=. That, a sale agreement was executed and witnessed by his two siblings and he took possession in 2013. That, since the time he took possession, no one has ever raised an issue and that he had been in possession for over 10 years by the time he testified in court. 228. The alleged sale was done in 2013 before confirmation of grant and no evidence was adduced to show that leave of court was obtained. Dealing with the said property was therefore a contravention of section 45 of the Act which prohibits intermeddling with any free property of a deceased person as well as section 82(b)(ii) which provides that immovable property should not be sold before confirmation of grant. 229. The minutes of the family meeting where sale of the shop was discussed were exhibited as ZNM6 and they show that the meeting was attended by 8 children of the 1st wife and the wife of Zacchaeus Mbevi. Dorothy Mbithi was absent with apology while James Muema was absent and the reason for https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4248/eng@2026-02-20 37

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his absence was not captured. The 2nd Administrator testified that James was duly informed about the meeting but he chose not to attend because he is a difficult person. 230. The meeting was majorly about the welfare of their mother who was ailing and on how to raise funds to cater for her monthly needs. Jonah disputed that their mother needed any medical financial support but he acknowledged that she had medical problems. Jonah also claimed that the shop was gifted to him during his wedding in 1991 but there was no evidence of transfer or operation of the shop by Jonah. 231. In my view, it is clear that majority of the 1 st wife’s children intended to sell the shop in order to raise funds for their mother and it is also evident that David S. Mulinge has been operating the shop without interruptions by his siblings. Taking the foregoing into account the shop falls into the hands of David S. Mulinge. 232. Jonah Kyalo claimed that Parcel No. Ukia/Utaati 624 was given to him by his mother on his wedding day. The problem with that claim is that the property was not registered in his mother’s name hence she had no capacity to gift it to him. James Muema also claims that the property was gifted to him by the deceased on his wedding day in 1969 but it is evident that the transfer was not effected in his name yet the deceased died in 1989 hence making the allegation improbable. This property was the subject matter in Makueni ELC Case No 4 of 2020 where Jonah Kyalo sued his brothers James Muema and William Ngenda for malicious damage to property. The 2nd Administrator testified that Jonah has a permanent house and a stone foundation for another on this property. Jonah himself testified that he has built and farmed on this property and that he had lived there for 27 years prior to the dispute with his brothers. He will share this with Serah Mulewa Wambua and the families of the late Zakayo Nyamai Mbevi and Grace Mati. The property being 3 acres means that each of them has 0.75 acres. 233. Parcel No. Ukia/Utaati 637 is the property where the 1st wife lived with her family. The evidence shows that David S. Mulinge has constructed permanent storied house on the property hence it is only fair that he gets allocated on it. The other beneficiaries would be Dorothy N. Mbithi and Beatrice Kinyanzui Ndolo. The property is 2 acres hence each of them would get 0.50 acres and 0.50 acres being reserved as the common area accessible to all members of the family. 234. With regard to Parcel No. Ukia/Kilala 112 -2.5 acres, the proposal by the 2nd Administrator appears equitable and I adopt it. The beneficiaries are the family of the late Paul Mbevi, James Muema Mbevi, William Ngenda Mbevi to get 0.75 acres each and Beatrice Kinyanzui Ndolo to get 0.25 acres. 235. Konza Plot No. 896 (30’ x 80) should be allocated to Dorothy Mbithi. 236. Kwa Katheke Plot No. 74 (2 acres). Considering that it would not be viable to divide it into 10 portions, the same ought to be sold and the proceeds be shared equally by all beneficiaries. 237. Having heard all the parties and considered each proposal carefully, I find and hold as follows: 238. The Preliminary Objection raised by the Interested is merited. The same is upheld. The Parcel No. Machakos/Konza North Block 1/321 is not available for distribution as its ownership is pending determination by the Machakos ELC Court. 239. The properties that the Konza Ranching Society confirmed do not exist or are unknown are not available for distribution. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4248/eng@2026-02-20 38

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240. 241. The distribution of the share of the 1st house culminates in each family member getting at least 0.75acres and the family homestead retaining 0.50 acres to be accessible to all members. Asset Beneficiary Share Shop No.12A Ukia Market David S. M. Mulinge Absolutely Parcel No. Ukia/ Utaati/624 3 Acres 1) Jonah Kyalo Mbevi 2) Serah Mulewa Wambua 3) Family of Zakayo Mbevi 4) Family of Grace Mati 0.75 Acres 0.75 Acres 0.75 Acres 0.75 Acres Parcel No. Ukia/ Utaati/637 2 Acres 5) David S. Mulinge 6) Dorothy N. Mbithi 7) Beatrice Kinyanzui Ndolo 8) Common Area 0.50 Acres 0.50 Acres 0.50 Acres 0.50 Acres Parcel No. Ukia/ Kilala/112 2.5 Acres 9) Family of late Paul Mbevi. 10) James Muema Mbevi 11) William Ngenda Mbevi 12) Beatrice Kinyanzui Ndolo 0.75 Acres 0.75 Acres 0.75 Acres 0.25 Acres Konza Plot No. 896 (30’ x 80) Dorothy Mbithi Absolutely Kwa Katheke Plot No. 74 All Beneficiaries To be sold and proceeds shared equally The distribution to the 2 nd house as per the affidavit of Simon Musyoka Mbevi subject to exclusion of unavailable properties will be as follows. Asset Beneficiary Share Ukia/Utaati/630 Justus Makau Mbevi Francis Mwanzia Mbevi Julius Ndivo Mbevi 1/3 share each Plot No. 12B Ukia Market Julius Ndivo Mbevi Absolutely Ukia/Utaati/1244 Simon Musyoka Mbevi Absolutely https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4248/eng@2026-02-20 39

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242. A Certificate of Confirmation of grant to issue accordingly. 243. Each party to bear its own costs. DATED SIGNED AND DELIVERED THIS 20TH FEBRUARY 2026 MUMBUA T MATHEKA JUDGE CA Mwiwa/Daniel Mrs. Mutua for 2nd Administrator Simiyu for 3rd Administrator Mwagi holding brief for Nyakundi for Jonah Kyalo Mbevi Ms. Kalinga (1st and 4th ) Administrator for 2nd House Mr. Mbindyo for interested Party Signed by/for: LADY JUSTICE MATHEKA, TERESIA MUMBUA MAKUENI HIGH COURT DATE: 2026-02-20 15:27:29 https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4248/eng@2026-02-20 40

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