Jared Amunabi Amulwana & 1 other v Livingstone Asala Amulwani & 5 others

He was survived by a wife, AGNES M'MBONI (now said to be deceased), and by ten children — five sons (Jared Amunabi Amulwana, Livingstone Babu Asala, Samson Anyonyi, Emmanuel Amulwani and Avitone Mahindu) and five daughters (Eva Wafula Khasaya, Serah Videji Anyanga, Dafrosa Iminza, Edith Eteya and Beverly Buyanzi). 4. His estate comprises three parcels of land: EAST BUNYORE/EBUSAMIA/2112, EAST BUNYORE/EBUSAMIA/1885 and EAST BUNYORE/EBUSAMIA/1813. 5. A grant of letters of administration intestate was made to Livingstone Asala Amulwani and Serah Videji Anyanga on 30 th September 2009, and a certificate of confirmation of grant was issued to them on 5 th October 2020. 6. The Applicant, Jared Amunabi Amulwana, subsequently filed a summons for revocation of grant dated 27th June 2022. That summons was allowed, and the Applicant was directed to file fresh summons for confirmation. The present application is filed pursuant to that direction. The Applicant's proposed distribution 7. By his supporting affidavit, the Applicant proposes to distribute the estate as follows: Property Beneficiary Share EAST Jared Amunambi 2.5 acres BUNYORE/EBUSAMIA/2112 Amulwana Livingstone Asala 1.7 acres Amulwana Samson Anyonyi 1.7 acres Amunabi Emmanuel Amulwani HCSUCC 051|2021 1.7 acres 2

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Property Beneficiary Share Amunabi EAST Avitone Mahindu and BUNYORE/EBUSAMIA/1885 Agnes M'mboni EAST Livingstone Asala and BUNYORE/EBUSAMIA/1813 Agnes M'mboni 8. Equally Equally The Applicant deposes that all assets and liabilities have been identified and that the beneficiaries have agreed on the mode of distribution. He filed a Consent to Confirmation of Grant (Form 37) in support. The protests 9. Serah Vijedi Anyanga, a daughter of the deceased, opposes the application on the ground that rightful beneficiaries — in particular the daughters — have been disinherited. She contends that the deceased distributed his properties, principally parcel 2112, during his lifetime and provided for his daughters. She proposes that parcel 2112 be shared equally in five portions of 1.5 acres each among the daughters (jointly), Jared, Livingstone, Samson and Emmanuel; that parcel 1885 pass wholly to Avitone Mahindu; and that parcel 1813 be shared equally between Resipah Emiteche and Josiah Opombi. 10. Livingstone Asala Amulwani and Sarah Vijedi Anyanga — the original administrators — protest that the Applicant's proposal is unequal, self-serving (the Applicant being both administrator and the single largest beneficiary), discriminatory against the daughters, and contrary to the deceased's wishes and to Sections 38 and 42 of the Law of Succession Act. They plead that they objected in writing by letter dated 6th March 2025 (annexed and marked “LAA/SVA-1”) before the summons was filed, but the Applicant proceeded regardless. They further plead that no valid consent was given; that a share of parcel 1885 HCSUCC 051|2021 3

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cannot be allocated to Agnes M'mboni, who is deceased; and that parcel 1813 is held in trust for its long-standing occupants, Resipah Emiteche and Josiah Opombi. They propose the same distribution as the 2 nd protestor and pray, in the alternative, that the court order viva voce evidence to ascertain the true wishes of the deceased. 11. Samson Anyonyi Amunabi, a son of the deceased, takes a distinct position. He deposes that the deceased, during his lifetime, apportioned to each child a specific portion of land, and that he was bequeathed 1.30 hectares hived from parcel 2112, which he has intensively developed. He states that a title (L.R. No. EAST BUNYORE/EBUSAMIA/2429) was issued to him following proceedings before the Land Disputes Tribunal, but was later cancelled during the succession so that the land reverted to the estate. He objects only to the mode of distribution of parcel 2112 and prays to be allocated the 1.30 hectares he says he was bequeathed. He raises no issue with the distribution of the remaining parcels. Issues for determination 12. Having considered the summons, the supporting affidavit, the three affidavits of protest and the annexures, the issues that arise are: (a) Whether the grant may be confirmed in the terms proposed by the Applicant; (b) The mode by which the deceased's estate falls to be distributed on intestacy, and in particular whether the daughters of the deceased are entitled to inherit; (c) Whether any share may be allocated to Agnes M'mboni; (d) What weight, if any, attaches to the alleged distribution of the land by the deceased during his lifetime, and to the parties' respective claims of settlement and occupation on the ground; and HCSUCC 051|2021 4

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(e) Whether the protest can be determined on the affidavits, or ought to proceed to hearing by viva voce evidence. Analysis and determination The legal framework 13. On an application for confirmation of grant, this court is enjoined by Section 71 of the Law of Succession Act and rule 40 of the Probate and Administration Rules not to confirm the grant unless it is satisfied as to the identity of all the beneficiaries and the respective shares to which they are entitled. Confirmation is not a formality; where a protest is lodged, the court must be satisfied that the proposed distribution is lawful and just before it can be endorsed. 14. The deceased having died intestate in 1988, and having been survived by a spouse and children, the estate fell in the first instance to be administered under Section 35 of the Act: the surviving spouse taking the personal and household effects and a life interest in the residue, and the children taking on the determination of that life interest. On the death of the surviving spouse, the residue devolves upon the children and, there being more than one, is to be divided equally among them (Sections 35 and 38). The Act draws no distinction between sons and daughters. 15. That statutory position is reinforced by Article 27 of the Constitution of Kenya, 2010, which prohibits discrimination on the basis of sex, and by the settled jurisprudence of the superior courts to the effect that a daughter cannot be excluded from her father's estate on account of her gender (see, among others, Rono v Rono. 16. Section 42 of the Act is also engaged. Where the deceased, during his lifetime, settled property upon or for the benefit of a child, that benefit is HCSUCC 051|2021 5

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to be taken into account in ascertaining the child's share. This provision cuts both ways in the present dispute and is addressed below. (a) Whether the grant may be confirmed as proposed 17. I am unable to confirm the grant in the terms the Applicant proposes, for the following reasons. 18. First, the Applicant asserts that the beneficiaries have agreed the mode of distribution. That assertion is not borne out by the record. The Consent (Form 37) on the file bears the signature of the Applicant and [one other beneficiary] only; the remaining beneficiaries have not signed, and the Assistant Chief of Emusutwi Sub-Location has endorsed that they declined to sign. The three affidavits of protest, together with the letter of 6 March 2025, put the absence of consent beyond doubt. The foundation on which the summons is premised therefore fails. 19. Second, the proposed distribution allocates shares of parcels 1885 and 1813 to Agnes M'mboni, who is deceased. A deceased person cannot take a beneficial share in the estate. If Agnes M'mboni survived the deceased and became entitled to a life interest or a share, any such entitlement forms part of her own estate and falls to be administered separately; it cannot be distributed to her in these proceedings. This is a defect on the face of the proposal. 20. Third, the proposal excludes the daughters of the deceased from parcel 2112 altogether. For the reasons at paragraphs 14 to 15 above, an exclusion of the daughters on the papers as they presently stand cannot be sustained. 21. Fourth, the Applicant is at once the administrator of the estate and, on his own proposal, its single largest beneficiary, taking 2.5 acres of parcel 2112 against 1.7 acres for each of his brothers. An administrator holds the estate in a fiduciary capacity for the benefit of all who are entitled. Where a distribution favours the administrator personally, departs from HCSUCC 051|2021 6

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equality, and is not consented to by the other beneficiaries, it must attract careful scrutiny and cannot be confirmed without cogent justification, which has not been furnished. 22. For these reasons the summons cannot be confirmed as framed. (b) to (d) The contested questions 23. It does not follow that the court can, at this stage, simply substitute the protestors' proposal. Two matters stand in the way. 24. The protestors are not themselves agreed. The 2nd protestor and the 1st protestor advocate an equal division of parcel 2112 into five portions of 1.5 acres each. The 3rd protestor, Samson Anyonyi, rejects that scheme: he claims a specific 1.30 hectares (approximately 3.2 acres) of the same parcel on the strength of an alleged lifetime bequest and his development of the land, a claim that cannot coexist with equal shares. These competing accounts of what the deceased did during his lifetime, and of the settlement of the family on the ground, are matters of fact in genuine dispute. 25. Further, whether parcel 1813 forms part of the free estate or is held in trust for Resipah Emiteche and Josiah Opombi, and whether parcel 1885 falls to Avitone Mahindu alone, are likewise contested questions of fact bearing on occupation, trust and the deceased's intentions. 26. These are precisely the questions Section 42 requires the court to weigh — the benefits, if any, each child received during the deceased's lifetime — and they cannot be resolved fairly on affidavit evidence alone. Where a protest turns on disputed questions of fact of this kind, the proper course is to hear the parties and their witnesses viva voce, on framed issues, so that the true position may be established before the estate is distributed. The protestors themselves invite this course in the alternative. (e) Disposition of the protest HCSUCC 051|2021 7

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27. Certain matters, however, can and should be settled now as a matter of law, to narrow the hearing: (i) The Daughters Of The Deceased Are Beneficiaries Of The Estate And Are Entitled To Be Considered In The Distribution On An Equal Footing With The Sons; And (Ii) No share of the estate may be allocated to Agnes M'mboni, who is deceased. 28. The balance of the protest — the deceased's alleged lifetime distribution, the 3rd protestor's claim to 1.30 hectares of parcel 2112, and the status of parcels 1885 and 1813 — shall proceed to hearing by viva voce evidence. Orders 29. Accordingly, the court orders as follows: 1. The Applicant's Summons for Confirmation of Grant is not confirmed in the terms proposed. 2. It is declared that (a) all the children of the deceased, daughters and sons alike, are beneficiaries entitled to be considered in the distribution of the estate; and (b) no share of the estate shall be allocated to Agnes M'mboni, who is deceased. 3. The protest shall be canvassed by way of viva voce evidence. The following issues are framed for determination at the hearing: (a) whether, and in what terms, the deceased distributed or settled his land — and in particular parcel EAST BUNYORE/EBUSAMIA/2112 — upon his children during his lifetime; (b) whether the 3rd protestor was bequeathed and/or has established an entitlement to 1.30 hectares of parcel 2112, HCSUCC 051|2021 8

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and the effect (if any) of the cancelled title L.R. No. EAST BUNYORE/EBUSAMIA/2429; (c) the benefits, if any, received by each child during the deceased's lifetime, for the purposes of Section 42 of the Law of Succession Act; (d) whether parcel EAST BUNYORE/EBUSAMIA/1813 is free estate or is held in trust for Resipah Emiteche and Josiah Opombi; and (e) the just mode of distribution of the estate consistent with the Law of Succession Act. 4. The Applicant and each protestor shall file and exchange written witness statements and any documents to be relied upon within 21 days of today's date before the Deputy Registrar on 20 th August 2026 to monitor compliance. 5. The matter shall be heard on 22nd of September 2026. 6. Costs of the protest shall abide the outcome of the hearing. DATED, SIGNED AND DELIVERED AT VIHIGA THIS 28TH DAY OF JULY 2026 …………………………………. R. NYAKUNDI JUDGE HCSUCC 051|2021 9

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