(deceased) Margaret Kamidi Erick Karani & 1 other v Monica Ngachi & 1 other

(ix) Milicent Jemo (x) Maurine Adilla 3. The deceased also had the following children born out of wedlock; (i) Harrison Lumumba (ii) Festus Mukono (iii) Monicah Ngachi (iv) Cleophas Ngachi 4. Erick Karani and Margaret Kamidi were appointed on 3/5/2024 as the administrator and administratrix respectively of the estate of the deceased and issued with letters of administration. This was after the initial grant was revoked on 4/3/2024 after Margaret Kamidi applied for its revocation vide summons for rectification of grant dated 10/1/2022. 5. The administrator and administratrix respectively vide summons for rectification of grant dated 8/4/2024 applied to have the grant issued on 3/5/2024 confirmed but the application was met with protests by Monicah Ngachi and Cleophas Ngachi stating that it was unfair for the applicant to hold the position that they should only be considered for distribution of the estate upon DNA test. They argued that if DNA test was to determine who were to benefit from the estate then all children of the deceased should be subjected to the same DNA test to confirm their paternity. According to the protestors the estate should be distributed equally among all the beneficiaries including the protestors. JUDGMENT-KTL HC SUCC.CAUSE NO.62/2013 PAGE 2 OF 9

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6. In light of the protest after efforts for mediation failed, this court directed the matter to proceed by way of viva voce evidence. 7. In her oral evidence in court Margaret Kamidi termed the protestors namely Cleophas Jumba and Monicah Ngachi as foreigners in the estate of the deceased. She contended that the protestors are settled in Cherangany with their mother and that the deceased helped their mother Catherine to settle there. According to her the protestors should be satisfied with their mother’s share in Cherangany since their mother Catherine was never married to the deceased. 8. She further testified that the protestors’ mother Catherine has not filed any objection in this cause. 9. Erick Karani (PW2) supported the position taken by PW1. He stated that he only came to know the protestors after the demise of the deceased. He denied knowledge of any of the protestors’ siblings. 10. Monicah Ngachi (DW1) on the other hand testified that she was recognized as a child to the deceased even during the burial of the deceased and should get a share of his estate. She stated that she protested the confirmation of grant because they were locked out. 11. She stated that her mother Catherine bought her own parcel from a loan she took and denied that the deceased assisted her. JUDGMENT-KTL HC SUCC.CAUSE NO.62/2013 PAGE 3 OF 9

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12. Cleopahs Ngachi (DW2) the 2nd protestor testified that they were omitted by the administrators unfairly yet they are children to the deceased. According to him the deceased left behind 15 children inclusive of the late Robert Malaba Jumba. 13. He faulted the administrators for falsehoods pointing out that the grant was issued on 3/5/2024 and not 4/3/2024 as deposed in the summons for confirmation of grant. 14. He maintained that though the deceased was not married to his mother, Catherine, he was a biological son to the deceased. That their mother was found not to be a dependant in the previous judgment in this cause delivered by Hon Justice Chemitei. He insisted that the grant issued to the administrator and administratrix on 3/5/2024 was irregular because according to him the grant has a different succession cause number. He however admitted that he was present in court when Justice Mrima issued the grant in court but he protested. 15. He testified that he had been considered for distribution previously in the proposed mode filed by Ingosi Advocate. He stated that he will be satisfied if he is given 1.5 acres share in the estate. 16. He denied being a personal representative of his late brother Robert (deceased). 17. Elizabeth Kiti Jumba also testified and stated that the deceased had given his 4 sons their respective shares and JUDGMENT-KTL HC SUCC.CAUSE NO.62/2013 PAGE 4 OF 9

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gave the daughters 4 acres. He admitted that Lumumba Jumba and Festus Mukono Jumba were also deceased’s children born out of wedlock just like the protestors herein including the late Robert Ngachi. 18. She stated that the protestors should not get a share on Kibagenge farm since they had already benefited from their mother’s share in Cherangany. 19. This court on its own motion summoned the protestors’ mother, Catherine given that her name featured prominently in the trial. 20. Catherine Wambichi came to this court and testified that she was not married to the deceased. That the deceased was merely a friend. She stated that she had been married once to one Masinde but later separated and that when deceased befriended her and proposed to marry her, she politely declined the proposal. She stated that the deceased accepted to just be her boyfriend. 21. She stated that she got 3 children with the deceased Cleophas Jumba, Monicah Ngachi and Lucy Ngachi. She stated that the 4th child died. 22. She stated that the deceased went back to her after she had gotten children with proposal to marry but she kept her stand and declined. That the deceased then drifted away and she took care of her children alone. That she bought her own parcel of land from bank loans and repaid them alone. She stated that she had bought parcels for her children in JUDGMENT-KTL HC SUCC.CAUSE NO.62/2013 PAGE 5 OF 9

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Kibomet and that her children are adults who should fend for themselves. She stated that she has no claim in this cause because she was not married to the deceased. 23. George Kiti Jumba (DW3) testified and supported the position taken by PW1 and PW2. He stated that the deceased gave him instructions to settle his 2 other sons born out of wedlock which he did. He stated that he does not recognize the protestors unless they undergo DNA test to establish that they are biological children of the deceased. 24. This court has considered the protest filed herein and the response made. It is evident from the petition filed that going by the affidavit of Erick Karani the estate of the deceased comprised the following assets; 25. (i) L.R. No.Kakamega/Serem/28 (ii) L.R. No. Waitaluk/Mabonde/Block 7 (Koiyo)147 – 0.86ha (iii) L.R. No.Waitaluk/Mabonde/ Block 7 (Koiyo)99 – 7.737ha (iv) Equity Bank Account It is also evident that from the judgment of Justice Chemitei dated 8/4/2020 Parcel No.Waitaluk/Mabonde/ Block 7 (Koiyo) 9 was found not to be part of the estate as the court found that the parcel had been sold. What this court has not clearly established is whether the parcel sold is the same one referred to by the petitioner herein as Waitaluk/Mabonde/ Block 7 (Koiyo)99. I will not delve further on that issue because it is not an issue herein. There is also lack of clarity in the summons for confirmation of JUDGMENT-KTL HC SUCC.CAUSE NO.62/2013 PAGE 6 OF 9

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grant dated 8/4/2024 with respect to what the estate comprises. The applicants also failed to give a preferred mode of distribution. 26. So while they accused the protestors for failing to give a proposal they have done the same mistake. This court will go with the assets listed in the petition. 27. What is in dispute herein is whether the protestors are dependants within the meaning of Section 29 of the Law of Succession Act. While the administrators deny that they are children of the deceased, the protestors claim that they are. 28. This court has considered the evidence tendered and what is agreed by both sides is that the mother to the protectors, namely Catherine was not married to the deceased. The said Catherine was summoned by this court to shed light on the issue plus the claim that the deceased had settled her and her children in Kibomet 29. The lady gave candid evidence regarding her relationship with the deceased. That the deceased tried on 2 occasions to have her accept marriage proposal but she flatly declined. She stated that having experienced a marriage before she had chosen not to get married again. That she was only seeing the deceased as a boyfriend and out of that relationship they got 4 children one of whom was now deceased. She was very categorical that she does not claim anything in this cause and that her children as adults could pursue their respective claims but as far as she was JUDGMENT-KTL HC SUCC.CAUSE NO.62/2013 PAGE 7 OF 9

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concerned, she brought up her children single handedly and had even bought them parcels of land from bank loans she took and paid without anyone’s help. 30. This court observed the demeanour of the said Catherine and has no doubt that she was speaking the truth as she knew. 31. This court’s attention was drawn to the petition filed herein and the affidavit filed by Erick Karani sworn on 28/5/2022. He clearly recognized the protestors and listed them as ‘step children already settled by the deceased.” 32. That averment in an affidavit coupled with the evidence of Catherine in my considered view shows that the protestors have proved their claim to the required standard in law that is on a balance of probabilities. The administrator cannot turn around and claim that the protestors’ claim can only be established by DNA test. 33. This court has looked at the Chief’s letter dated 3/9/2012 filed by the administrator himself and the same lists the protestors as dependants. 34. This court finds that the protestors have proved their claim and find that because their mother was very clear that she catered for them in their education single handedly with the deceased not making any contribution, I find that their prayer to be given 1.5acres each is reasonable. This court finds that the 2 protestors herein Monicah Ngachi and JUDGMENT-KTL HC SUCC.CAUSE NO.62/2013 PAGE 8 OF 9

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Cleophas Ngachi will each get 1.5acres from Waitaluk/Mabonde/Block 7(Koiyo)99. 35. The other beneficiaries namely; (i) George Gidei Jumba (ii) Margaret Jumba (iii) Elizabeth Jumba (iv) Erick Karani Kiti (v) Edward Jumba (vi) Jean Kiti (vii) Eva Mmbone Kiti (viii) Alex Chagwi Jumba (ix) Milicent Jemo and (x) Maurine Adilla Will share equally the remainder of the parcels namely Waitaluk/Mabonde/Block 7(Koiyo)99 and Waitaluk/Mabonde/Block 7(Koiyo)147 as per their agreement in respect of where each beneficiary will get his or her share. This is to ensure that those settled or those that have put up houses in whichever parcel are not disrupted. I will make no order as to costs. For avoidance of doubt if there is any remaining parcel in Serem or money at Equity Bank the 10 named children in paragraph 35 above will share equally. If the same are no longer available then this decision should not be used to disturb the status quo. DELIVERED, DATED and SIGNED at KITALE this ……23rd .… day of ………………JUNE……….……………., 2026. HON JUSTICE R.K. LIMO JUDGMENT-KTL HC SUCC.CAUSE NO.62/2013 PAGE 9 OF 9

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KITALE HIGH COURT Judgment delivered in open court In the presence of Nabwile for 1st administrator Rutto for one of the beneficiaries Monica Ngachi & Cleophas Ngachi Duke/Chemosop- court assistants JUDGMENT-KTL HC SUCC.CAUSE NO.62/2013 PAGE 10 OF 9

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