REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT KAKAMEGA SUCCESSION CAUSE APPEAL NO. 17 OF 2021 IN THE MATTER OF THE ESTATE OF WEYUSIA SIKOLI (DECEASED) ELPHAS WANJALA………………………………………………APPELLANT/PROTESTOR VERSUS DORCAS NASHIMIYU WEYUSIA……………………RESPONDENT/ADMINISTRATOR JUDGMENT 1. This matter relates to the estate of the late Weyusia Sikoli (deceased). The dispute before the court concerns the mode of distribution of the estate. The respondent, Dorcas Nashimiyu Weyusia, as the administrator of the estate, filed summons for confirmation of grant proposing a mode of distribution of the estate. 2. The appellant/protestor, Elphas Wanjala, filed an Affidavit of Protest dated 18th October 2023 objecting to the proposed distribution and proposing an alternative mode of distribution. 3. From the material placed before the court, there is no dispute regarding the assets constituting the estate or the persons entitled to benefit from it. The sole issue for determination is whether the protestor has established sufficient grounds for the court to depart from the mode of distribution proposed by the administrator. 4. According to the affidavit of protest, the deceased was survived by the following children: KK. HSUCCA 17 OF 2021 - JUDGMENT 1
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a. Rosemary Bulenywa Weyusia; b. Dorcas Nashimiyu Weyusia; c. Festo Wanjala Weyusia (deceased); and d. Charles Sikolia Weyusia (deceased). 5. It is also not disputed that the houses of the deceased sons are represented by their respective widows and children. 6. The protestor avers that the deceased had settled the beneficiaries on the ground during his lifetime and that the estate had been demarcated in accordance with his wishes. 7. He further contends that the respondent and her sister Rosemary Bulenywa Weyusia had sold four (4) acres of land to one Joseph Barasa Mutinyi and that the said transaction ought to be taken into account in distributing the estate. 8. On the basis of those allegations, the protestor proposes that the estate be distributed as follows: a. Rodah Narotso Bushuru – 14 acres; b. Adelide Nanjala Masinde – 10 acres; c. Rosemary Bulenywa Weyusia – 1 acre; d. Dorcas Nashimiyu Weyusia – 1 acre; and e. Joseph Barasa Mutinyi – 4 acres. KK. HSUCCA 17 OF 2021 - JUDGMENT 2
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9. The court subsequently directed parties to file written submissions on the issue of redistribution. Neither party complied with those directions. Issues for Determination 10. Having considered the pleadings and affidavits on record, the court is of the view that the following issues arise for determination: i. Whether the protestor has established sufficient grounds for redistribution of the estate. ii. What orders ought to issue. Analysis and Determination 11. Once the beneficiaries of an estate and the assets available for distribution have been identified, the court is required to ensure that distribution is undertaken in accordance with the law. 12. The protestor bears the burden of proving the facts upon which he seeks redistribution of the estate. Sections 107 and 109 of the Evidence Act place the burden of proof upon the person who alleges the existence of a fact. 13. In this case, the protestor alleges that the respondent and her sister had already disposed of four acres of land to Joseph Barasa Mutinyi and should therefore receive reduced shares from the estate. KK. HSUCCA 17 OF 2021 - JUDGMENT 3
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14. The court has carefully examined the affidavit of protest. Beyond the bare allegation that the two daughters sold four acres to Joseph Barasa Mutinyi, no documentary evidence has been produced to demonstrate the nature of that transaction, the authority under which it was undertaken, the acreage affected, or how the transaction should legally affect the entitlement of the beneficiaries under the estate. 15. The court further notes that Joseph Barasa Mutinyi is not identified as a beneficiary of the estate. His claim, if any, appears to arise from an alleged transaction with certain beneficiaries and not from a direct entitlement under the estate of the deceased. 16. The Court of Appeal in Re Estate distribution disputes has consistently emphasized that a automatically supersede the rights purchaser’s of claim does not beneficiaries unless the transaction is legally established and properly proved before the succession court. 17. The protestor also relies on the alleged wishes of the deceased and occupation on the ground. While occupation and historical settlement may be relevant considerations, they do not by themselves displace the statutory principles governing succession unless supported by cogent evidence. 18. The court has also taken into account the fact that the protestor was afforded an opportunity to canvass his objections through written KK. HSUCCA 17 OF 2021 - JUDGMENT 4
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submissions. Despite directions issued by the court, no submissions were filed. 19. In the case of Raila Odinga & 5 Others v IEBC & 3 Others, the court observed that submissions are merely a marketing language for parties and cannot substitute evidence. Consequently, where evidence is insufficient, submissions cannot cure the deficiency, and where submissions are absent, the court determines the matter on the basis of the material properly before it. 20. The protestor’s proposal would allocate fourteen (14) acres to one house, ten (10) acres to another house and only one (1) acre each to the two daughters of the deceased. No satisfactory legal basis has been laid before the court to justify such substantial disparity in distribution. 21. The Constitution of Kenya and the Law of Succession Act recognize equality of beneficiaries and prohibit discrimination on account of gender. 22. are In Rono v Rono, the Court of Appeal emphasized that daughters entitled to inherit from their parents’ estates and that discrimination based on gender has no place in succession matters. KK. HSUCCA 17 OF 2021 - JUDGMENT 5
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23. Similarly, In Re Estate of Lerionka Ole Ntutu (Deceased ), the court reiterated that daughters enjoy equal inheritance rights under the Constitution and the Law of Succession Act. 24. The proposal advanced by the protestor would drastically reduce the shares of the daughters without sufficient evidential or legal justification. To adopt such a proposal would offend the principles of equality and fairness embodied in the law. 25. The court is therefore unable to find merit in the affidavit of protest. 28. Having considered the affidavit of protest, the response thereto and the entire record before the court, I find that the protestor has failed to establish sufficient grounds to warrant redistribution of the estate in the manner proposed. 29. The affidavit of protest dated 18th October 2023 is hereby dismissed 30. The estate shall be distributed equally among all the children of the deceased, and if a child of the deceased has passed on his/her share to go to his/her children. 31. Given the nature of the dispute and the relationship between the parties, each party shall bear their own costs. KK. HSUCCA 17 OF 2021 - JUDGMENT 6
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DATED, SIGNED AND DELIVERED IN OPEN COURT AT KAKAMEGA THIS 11th DAY OF JUNE, 2026. S.N MBUNGI JUDGE In the presence of:CA: Zildah/ Velma Ms. Ouma holding brief for Mr. Magina for the Respondent present. Mr. Munyendo for the Appellant absent. KK. HSUCCA 17 OF 2021 - JUDGMENT 7
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