Mary Nasambu J Sibuchi & 2 others v Caroline Iminza Maleya & 2 others

RULING 1. The Applicants/objectors Caroline Iminza Maleya, Allan Kisaka Sibuchi and Jackson Bara Sibuchi. The applicants have filed summons dated 27-3-2023 pursuant to Section 47 of the Law of Succession Act and Rule 73 of the Probate and Administration rules for orders:i. Spent. ii. Spent iii. That pending the hearing and determination of this application, the confirmation of the letters of administration issued to Mary Nasambu Sibuchi, Bramuel Matasi Sibuchi, Rose Nelima Sibuchi and Jackson Barasa Sibuchi be stayed. iv. That the titles of LR. No. Ndivisi/Mihuu/2443, 2444 & 2445 be cancelled and the same be reverted to the Ndivisi/Mihuu/72 original number in name the LR.No. of the by the deceased herein. v. That costs be shouldered Respondents. 2. The application is premised on the grounds that;a) On 17/1/2022 the objectors/applicants lodged an application for objection. RULING-KTL HC SUCC.CAUSE NO.26/2020 PAGE 2 OF 18

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b) This court by consent appointed Mary Nasambu Sibuchi, Bramuel Matasi Sibuchi, Rose Nelima Sibuchi and Jackson Barasa Sibuchi as joint administrators. c) The deceased was the owner of LR. No. Ndivisi/Mihuu/72 before he died. d) The Respondents caused the said title deed to be closed and created the following titles LR. No. Ndivisi/Mihuu/2443, 2444 & 2445. e) The creation of the title deeds was illegal, irregular, null and void for want of law. f) The letters of administration issued cannot be confirmed first before the said titles revert back in the deceased name. g) This court has powers to cancel the said titles. h) It will be in the interest of justice and for fairness and equality if these titles are cancelled. i) Respondents will not be prejudiced in any way if the said orders are granted. 3. The application is further supported by affidavit sworn by Jackson Barasa Sibuchi on his behalf and on behalf of the 1 st and 2nd Applicants. The 3rd Applicant in the affidavit states that he is one of the Administrators of the estate of the deceased and prior to his death, the deceased had three parcels of land namely RULING-KTL HC SUCC.CAUSE NO.26/2020 PAGE 3 OF 18

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Ndivisi/Mihuu/72, Kiminini/Matunda/Block/7/Masaba/64 and Ndivisi/Mihuu/55. 4. In his oral evidence, PW1 Jackson Barasa Sibuchi the 3 rd applicant herein testified that he is the son of deceased herein (Jotham Sibuchi Kisaka). He testified that sub division of the parcel No.72 was done after his father had died. He further stated that his father had two wives. That he is the first born in the first house of Melap Khalakayi(deceased) who had ten children. That only two are alive. The 3 rd Applicant further stated that their father had three parcels of land and before he died, he allocated his children the parcels in the year 1983 where he was allocated a portion measuring 4 acres in parcel number Ndivisi/Mihuu/55 and his brother Festus (now deceased) allocated 4 acres where his widow currently reside in the same parcel of land. He also testified that parcel number Ndivisi/Mihuu/72 was allocated to Richard (deceased), Philip and Henry (deceased). He stated that he attended memorial service of the late Henry but that he did not agree on the division the estate though he appended his signature on the minutes dated 23 rd December 2001. PW1 testified that he never reported the fraud at any police station out of respect he had for his brothers and he does not wish to disinherit anyone. The 3rd applicant further stated that his brothers in parcel number Ndivisi/Mihuu/72 and Kiminini/Matunda/Block 7/64 are settled in their respective shares and are living peacefully. RULING-KTL HC SUCC.CAUSE NO.26/2020 PAGE 4 OF 18

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During re-examination, PW1 testified that his father allocated him 4 acres where he build his house though he disputed the suggestiong that the same was by inheritance. PW1 also confirmed that he signed the minutes confirming that he was entitled to parcel number Ndivisi/Mihuu/55. 5. That in the year 2000 after the demise of the deceased, subdivision was done in parcel number Ndivisi/Mihuu/72 to create parcel numbers Ndivisi/Mihuu/2443, 2444 & 2445. That parcel number Ndivisi/Mihuu/2443 was allocated to Beatrice Jerusa Wanyama, Parcel No.Ndivisi/Mihuu/2444 went to Richard Masika Sibuchi while Ndivisi/Mihuu/2445 went to Philip Kisaka Sibuchi. The applicants allege that the said titles were procured illegally when Philip Kisaka Sibuchi was Land Registrar at Bungoma Land office. He further depones that parcel number Ndivisi/Mihuu/2444 which was allocated to Richard Masika Sibuchi(now deceased) has been transferred to Alex Kisaka Masika, Martin Soita Masika and Robert Makokha Masika. They pray for stay of confirmation of grant. 6. The petitioners Mary Nasambu J Sibuchi, Bramwel Matasi Sibuchi and Rose Nelima Sibuchi expressed that they were not party to summons for revocation of grant and that they have no issue with the way the estate was partly distributed. They have expressed their wishes vide the summons for confirmation of grant dated 4-2-2022 which will I will consider shortly. RULING-KTL HC SUCC.CAUSE NO.26/2020 PAGE 5 OF 18

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7. In their written submission done through counsel the applicants fault the procedure adopted in the transfer of part of the estate to the respective beneficiaries herein. According to the applicants the transfers were fraudulent because they were done before the succession was completed and the grant confirmed. They urge this court to deal with all transactions with respect to parcels comprising the estate as intermeddling and reverse the transactions and cancel the title deeds. 8. The 1st and 2nd Respondents Philip Kisaka Sibuchi and Beatrice Jerusa opposed the summons for revocation of grant through the replying affidavit sworn by the 2 nd Respondent on her behalf and on behalf of the 1 st Respondent. The deponent avers that she is the widow of Henry Busiyile Sibuchi(deceased) who was the son of Jotham Sibuchi Kisaka(deceased). That the 3 rd, 4th and 5th Respondents are the sons of her brother in-law Richard Masika Sibuchi(deceased) who was also the son of Jotham Sibuchi Kisaka(deceased). She confirms that her father inlaw Jotham Sibuchi Kisaka(deceased) had three parcels of land being Ndivisi/Mihuu/72 measuring approximately 32 acres, Kiminini/Matunda/Block 7/Masaba/64 measuring approximately 19.5 acres and Ndivisi/Mihuu/55 measuring approximately 9 acres. 9. The deponent further avers that in the year 1983, the deceased herein RULING-KTL HC SUCC.CAUSE NO.26/2020 bequeathed parcel number PAGE 6 OF 18

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Ndivisi/Mihuu/55 to Jackson Barasa Sibuchi and Festus Wanjala Sibuchi in equal shares of approximately 4.5 acres each. That Parcel number Ndivisi/Mihuu/72 was gifted to Henry Busiyile Sibuchi(deceased), Richard Masika Sibuchi(deceased) and Philip Kisaka Sibuchi in a ratio of approximately 10 acres each. She deponed that a family meeting was convened to confirm the said distribution and demarcation done accordingly. That Jackson Barasa Sibuchi had no issue on how the land was distributed and there has been no issue with regard to the said distribution. That all the children were settled in their respective portions. The deponent further avers that the distribution of the said parcels by the deceased be treated as gift inter-vivos and that the same be taken into account in determining share of the net estate of the beneficiaries. The Respondent avers that the applicants have not demonstrated how they will be prejudiced by the distribution and prays that the application be dismissed. 10. The 3rd, 4th and 5th respondents have thrown their weight behind the averments of the 2nd respondent. 11. They aver that upon the demise of their father Richard Masika Sibuchi, their mother Agnes Naliaka Masika filed succession petition of the estate of the deceased with regard to parcel number Ndivisi/Mihuu/2444. That the grant was confirmed and the estate was distributed to the beneficiaries and that they have been in occupation of their respective RULING-KTL HC SUCC.CAUSE NO.26/2020 PAGE 7 OF 18

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parcels. They aver that in the event that the said title deeds are cancelled, they will be prejudiced and they will suffer irreparable loss and prays that the application be dismissed with costs. 12. The respondents on the other hand called a total of four witnesses. James Iyaya Simwelu (DW1) stated that he was present in the ceremony held in the year 2001 after Henry died and that the 3rd applicant signed the minutes. During cross-examination, DW1 stated that Henry (deceased) who was the son of Jotham Sibuchi Kisaka had passed on and according to Tachoni customs, a meeting was held where his assets were shared and he chaired the meeting. That the parties who attended the meeting signed the minutes willingly. That he was also present in the year 1983 when Jotham Sibuchi Kisaka(deceased) allocated parcel number Ndivisi/Mihuu/55 to his sons Jackson and Festus equally with each getting 4.5 acres and that the deceased indicated that the same were their shares. DW1 testified that parcel number Ndivisi/Mihuu/72 was divided among the three sons being Philip Kisaka, Henry Sibuchi and Richard, each getting a portion measuring 10 acres. It is his testimony that Jackson Barasa had declined a share he had been offered in parcel number Ndivisi/Mihuu/72 and insisted on Parcel No.55. RULING-KTL HC SUCC.CAUSE NO.26/2020 PAGE 8 OF 18

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13. Joseph Tingala (DW2) on his part testified that he was also present in the meeting held in the year 2001 after Henry had passed on. That the widow of Jotham convened a meeting where he was the secretary. DW2 testified that Jackson Sibuchi, the applicant herein was also present in the meeting. He stated that parcel number Ndivisi/Mihuu/55 was allocated to Jackson and Festus and that parcel number Ndivisi/Mihuu/72 was shared among three sons and the applicant never raised any issue during the meeting. DW2 further stated that he was present in the year 1983 when the deceased indicated how he wanted his land parcels shared. 14. Beatrice testimony Jerusa Wanyama stated she Sibuchi(deceased) and was (DW3) the that wife in her sworn of Busiyile Jotham Sibuchi Kisaka(deceased) was her father-in-law. She stated that her deceased husband was allocated land measuring 4.5 acres by the deceased. During cross-examination, DW3 testified that the deceased had five sons namely Jackson Barasa, Festus Wanjala, Henry Sibuchi, Richard Masika and Philip Sibuchi from the first house. It was her testimony that the deceased divided his parcel number Ndivisi/Mihuu/72 to three sons namely, Henry Sibuchi, Richard Masika and Philip Sibuchi. That parcel number Ndivisi/Mihuu/55 was given to the other two sons, including the 3rd applicant. DW3 also testified that she was RULING-KTL HC SUCC.CAUSE NO.26/2020 PAGE 9 OF 18

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issued with her title deed in the year 2000. She confirmed that Philip Sibuchi (deceased) worked as Land Registrar at Bungoma but that the title deeds were issued before he was transferred to Bungoma. She further testified that they are all living on their respective parcels peacefully. In re-examination, DW3 testified that she is in occupation of a portion in parcel number Ndivisi/Mihuu/72 whereas Jackson Barasa and Festus Wanjala are in occupation of parcel number Ndivisi/Mihuu/55. 15. Robert Makokha Masika (DW4) testified that stated that he is the son of Richard Masika(deceased) who was the son of Jotham Sibuchi Kisaka(deceased). In cross-exam, he stated that his mother (DW3) filed succession petition over the estate of his father Henry Sibuchi (deceased) who was the owner of parcel number Ndivisi/Mihuu/2444 which parcel was a resultant of sub division of parcel number Ndivisi/Mihuu/72. He also testified that his uncles Jackson Barasa and Festus Wanjala are in occupation of parcel number Ndivisi/Mihuu/55 and are residing on the land they were shown. During re-examination, DW4 testified that their father’s land was later sub divided among himself and his brothers being Alex and Martin. 16. The respondents on the other hand submit that the application is belated and that no evidence has been tendered by the applicants to prove the allegations of fraud. RULING-KTL HC SUCC.CAUSE NO.26/2020 PAGE 10 OF 18

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They further contend that the jurisdiction of this court with respect to the prayers to cancel or revoke the title deeds is limited and that the reliefs can only be sought in the Environment and Land Court. 17. This court has set out both the applicants’ case as well as the objections by the respondents. 18. This cause relates to the estate of the late Jotham Sibuchi Kisaka alias Jotham Sibuchi (deceased) who died on 25th December 1988. 19. The deceased died intestate leaving behind the following dependants from the second house as per the petition filed herein; 20. i. Mary Nasambu Sibuchi(2nd widow) ii. Fred Kisaka Sibuchi(deceased) iii. Moses Wanjala Sibuchi iv. Florence Nangila Sibuchi v. Margaret Nafula Sibuchi(deceased) vi. Enes Mutenyo Sibuchi vii. Rose Nelima Sibuchi viii. David Masai Manyonge ix. Christine Naliaka Sibuchi x. Mildred Nasimiyu Sibuchi xi. John Mandila Sibuchi xii. Bramwel Matasi Sibuchi The deceased also had the following children from the first house; i. ii. iii. iv. v. vi. Mellap Khalakai Sibuchi-1st Widow(deceased) Loice Nabalayo Sibuchi(deceased) Jackson Barasa Sibuchi Festus Wanjala Sibuchi(deceased) Henry Busiyile Sibuchi(deceased) Richard Masika Sibuchi(deceased) RULING-KTL HC SUCC.CAUSE NO.26/2020 PAGE 11 OF 18

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vii. viii. ix. x. xi. 21. Fridah Lwile Sibuchi Lorna Nafula Sibuchi Mary Mukhwana Sibuchi Beatrice Khisa Sibuchi Philip Kisaka Sibuchi The evidence tendered shows that the deceased settled his two houses in their respective parcels of land. The first house was settled in parcel numbers Ndivisi/Mihuu/55 and Ndivisi/Mihuu/72 and the second house was settled in parcel number Kiminini/Matunda/Block 7/Masaba/64. That parcel number Ndivisi/Mihuu/72 has been sub divided and title deed issued to the beneficiaries who had been allocated respective portions by the deceased. The parcels that are still in the name of the deceased are Kiminini/Matunda/Block 7/Masaba/64 and Ndivisi/Mihuu/55. 22. The deceased had prior to his demise as observed appeared to have settled the two houses in their respective parcels of land. The first house was partly settled in parcel No.Ndivisi/Mihuu/55 where the applicant Jackson Barasa Sibuchi and the family of the late Festus Wanjala Sibuchi are settled in 4.5 acres each. The other sons from the 1 st house namely Henry Busiyile Sibuchi (deceased), Richard Masika Sibuchi (deceased) and Philip Kisaka Sibuchi were settled in Ndivisi/Mihuu/72 in the ratio of approximately 10 acres each. That parcel was subdivided into parcel Nos.2443, 2444 and 2445 and transferred to the said 3 sons two of whom are now deceased. The parcel given to Henry Sibuchi (deceased) RULING-KTL HC SUCC.CAUSE NO.26/2020 PAGE 12 OF 18

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was later further subdivided upon his demise and the resultant titles passed over to his children. 23. The remaining parcels comprising the estate in this cause are Kiminini/Matunda/Block 7/Masaba/64 which belongs to the 2nd house and Ndivisi/Mihuu/55 which belongs to the 2nd house. The parcel No.Kiminini/Matunda/Block 7/Masaba/64 belongs to the 2nd house and there is no dispute over the same. That is why they have moved this court vide summons for confirmation of grant dated 4-72022 for confirmation. The application is uncontested. 24. I have carefully considered the application, the affidavits, statements and the submissions filed as well as the authorities relied upon. What is in dispute herein is whether the deceased established his wishes on the distribution of his land prior to his death and whether the same ought to be taken into account in distribution of the estate. The Applicant testified that in the year 1983 the deceased settled his two widows and their children. That pursuant to his wishes, the first house was settled in parcel numbers Ndivisi/Mihuu/55 and Ndivisi/Mihuu/72 whereas the Second house was settled in parcel number Kiminini/Matunda/Block 7/Masaba/64. The deceased distributed parcel number Ndivisi/Mihuu/55 to Jackson Barasa Sibuchi and Festus Wanjala Sibuchi in equal shares of approximately 4.5 acres. Land parcel number Ndivisi/Mihuu/72 RULING-KTL HC SUCC.CAUSE NO.26/2020 was distributed to Henry Busiyile PAGE 13 OF 18

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Sibuchi(deceased), Richard Masika Sibuchi(deceased) and Philip Kisaka Sibuchi in a ratio of approximately 10 acres each. 25. The respective beneficiaries took possession and occupation of their respective portions of land in 1983 and have and have continued to do so uninterrupted. There was no complaint by any of the sons of the deceased even after his death until this application was filed. From the evidence tendered the applicants are more concerned on how parcel number Ndivisi/Mihuu/72 was sub divided to parcel numbers Ndivisi/Mihuu/2444, 2445 and 2443. The said parcels were transferred and title deeds issued to Richard Masika Sibuchi, Philip Kisaka Sibuchi and Beatrice Jerusa Wanyama respectively. The Applicants allege that the said subdivision and transfer was marred by fraud. It is now well settled that allegations of fraud are serious and must be proved with sufficient evidence. The applicants’ allegations however are wanting for want of proof. They concede that since they learned of the fraudulent activities they did not report at any police station or take any action. The titles as per the evidence before court were issued in year 2004 to the respective beneficiaries but applicants waited for over 20 years to raise their concerns through this application regarding how the title deeds were procured. RULING-KTL HC SUCC.CAUSE NO.26/2020 PAGE 14 OF 18

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26. This court finds that the applicants have made general allegations of fraud without providing any specific details as to how the alleged fraud was perpetuated and by whom or when. The vague and un-particularized allegations in my view do not meet the threshold required by law. It is a requirement of law that in a suit where allegations of fraud are made, the particulars of the fraud alleged must be stated with specifics; the acts alleged to be fraudulent must be set out, and the culprit must be stated so that he can defend himself. The applicants further failed to call the Land Registrar as the witness so that, the land records would have been availed to ascertain how the land was transferred to the respective beneficiaries and whether there are irregularities. 27. It is quite apparent that the applicants acquiesced to the arrangements made by the deceased in settling them where each beneficiary is now settled. Some of the applicants like the 1st applicant is now over 80 years old. The family members have all settled in their respective portions. Some if not most of the children of the deceased are now deceased. For the applicants to come to court to ask that status quo be altered after over 40 years is undesirable in view of the fact that some of the properties are now in the hands of 3rd parties. 28. The evidence before the court shows that there were established wishes of the deceased prior to his death. All the RULING-KTL HC SUCC.CAUSE NO.26/2020 PAGE 15 OF 18

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witnesses testified that the deceased settled his families in their respective parcels of land in a meeting held in the year 1983. The applicants conceded to this fact clearly in court. The children from the first house was shown their respective portions of land and they settled peacefully including the applicants. That 46 years have lapsed since the beneficiaries were settled and there has been peaceful co-existence shows that the application before court is an afterthought. The court In re Estate of Nkurumwa Ole Ntemel(Deceased) [2024] KEHC 13805 (KLR) held that; “The property that had been settled by the deceased to each house is to be considered in determining the ultimate entitlement of each house or dependants in accordance with section 40 of the law of succession Act.” 29. Further in re Estate of the late Siwanyang Ngilotochi(deceased)2021KEHC5918(KLR), the court decided that; “I find that the deceased established his wishes on how his two parcels of land were to be divided during his life time. I therefore find that the deceased established his wishes before he died. The answer to the first issue is in the affirmative. ……….. The proposed petitioners RULING-KTL HC SUCC.CAUSE NO.26/2020 mode of respects distribution of the the of the wishes PAGE 16 OF 18

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deceased. I therefore approve it……The estate of the deceased will be distributed in accordance with the proposed mode of distribution of the petitioners.” 30. The beneficiaries of the first house largely have been registered as the owners of the respective portions given to them by deceased. 31. Section 42 of the Law of Succession Act provide as follows; 42. Previous benefits to be brought into account Where— (a) an intestate has, during his lifetime or by will, paid, given or settled any property to or for the benefit of a child, grandchild or house; or , (b) property has been appointed or awarded to any child or grandchild under the provisions of section 26 or section 35 that property shall be taken into account in determining the share of the net intestate estate finally accruing to the child, grandchild or house. The court in Martha Wanjiku Waweru vs Mary Wambui Waweru(2007) eKLR held that; RULING-KTL HC SUCC.CAUSE NO.26/2020 PAGE 17 OF 18

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“In this case the deceased had in his lifetime distributed his estate as he wished. He had power to do so. His family members did not protest or change his mode of distribution which they had opportunity to do during his lifetime. He fixed clear physical boundaries which no one interfered with at any stage even after his death……..The final order is that the deceased’s parcel of land L. R. Loc.8/Kaganda/930 shall be divided in the manner the deceased had subdivided it…….” 32. This court in light of the above authorities and the law finds that the summons for revocation of grant dated 27-32023 to be belated and an afterthought the same is declined. The children of the deceased will settle in the respective parcels shown to them by the deceased. The shares given to all the children may not have been equal but equitable. That explains why all the members of the 2 houses were quiet and satisfied for that long period of time observed above. 33. In order to bring this matter to an end the summons for confirmation of grant dated 4-7-2022 is hereby allowed in the following terms; (A) L.R. NO. KIMININI/MATUNDA/BLOCK 7/MASABA/64 1. Mary Nasambu Sibuchi 1.4acres 2. Estate of Fred Kisaka 3.5acres RULING-KTL HC SUCC.CAUSE NO.26/2020 PAGE 18 OF 18

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3. Moses Wanjala 3.5acres 4. David Masai 3.5acres 5. John Mandila 3.5acres 6. Bramwel Matasi 3.5acres 7. Florence Nangila 0.1acre 8. Enes Mutenyo 0.1acre 9. Rose Nelima 0.1acre 10. Christine Naliaka 0.1acre 11. Mildred Nasimiyu 0.1acre 12. Kefa Maunda Simiyu 0.1acre (Grandson to the deceased) (B) L.R. NO.NDIVISI/MIHUU/55 1. Jackson Barasa Sibuchi 4.5acres 2. Family of the late Festus Kisaka Wanjala (dcd) 4.5acres I will make no order as to costs so each party to meet own costs. DELIVERED, DATED and SIGNED at KITALE this ……23RD ………………JULY……….……………., 2026. .… day of HON JUSTICE R.K. LIMO KITALE HIGH COURT Ruling delivered in open court In the presence of Lusweti for 1st to 5th respondents Wamalwa for the petitioner RULING-KTL HC SUCC.CAUSE NO.26/2020 PAGE 19 OF 18

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Duke/Chemosop – court assistants RULING-KTL HC SUCC.CAUSE NO.26/2020 PAGE 20 OF 18

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