The Republic of Kenya v Philip Nasokho Wepukhu … 2nd Administrator & 2 others

iv. Ruth Otunga v. Rose Nakhumicha vi. Mary Nasipwondi vii. Joshua Wepukhulu viii. Justus Wepukhulu ix. Justus Wepukhulu x. Sarah Wepukhulu xi. Daniel Wepukhulu( deceased) xii. Eunice Wepukhulu xiii. Ben Wepukhulu ( deceased) The deceased’s five sons and five daughters are still living; this is not in dispute. 3. On the 7th October 2022, Justice Riechi delivered a Judgment defining the deceased’s assets and proposals on mode of distribution as follows: 4. The proposal by the1st Administrators is as follows: NDIVISI/ KHALUMULI/572-17 ACRES i. Philip Nasokho 5 Acres ii. John Muhuyi 4 Acres iii. Joshua Juma 4 Acres iv. Ben Wafubwa ( deceased) – 4 Acres to be given to Hellen Biketi-widow NDIVISI/ KHALUMULI/777- 14 ACRES i. Japhetha M. Wepukhulu- 6 Acres ii. Justus Wabwoba – 4 Acres SUCCESSION CAUSE NO. 71 OF 1998-RULING 2

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iii. Daniel Wanjala- deceased to be given to Sheila Wanjala- widow PLOT NO. 70 – WEBUYE TOWN i. Ben Wafubwa- deceased partly constructed shop to be given to Hellen Biketi-widow ii. 5 rooms, a) Japhetha Wepukhulu- 2 rooms b) John Muhuyi-1 room c) Justus Wabwoba- 2 rooms 5. The above mode of distribution is agreeable to: Mary Nasipwondi Wepukhulu, John Munyi, Justus Wabwoba, Sara Naliaka and Eunice Nasiebanda, who executed the consent accompanying the summons. 6. A protest was thereafter filed by Philip Nasokho Wepukhulu (Philip). In his affidavit, Philip deposes that the deceased left the following properties. i. Ndivisi/ Khalumuli/572 ii. Ndivisi/ Khalumuli/777 iii. Plot number 70 Webuye Township iv. Unregistered plot within Webuye Municipality measuring 50 by 100 feet. v. Plot at Ngwelo Market measuring 50 by 100 feet 7. Philp proposed that the estate be shared out as follows; Ndivisi/Khalumuli/572 SUCCESSION CAUSE NO. 71 OF 1998-RULING 3

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i. Ben Wafubwa – 4 acres ii. John Muhuyi -5 acres iii. Philip Nasokho- 5 acres iv. Joshua Juma- 4 acres Ndivisi/ Khalumuli/777 i. Japhether Wepukhulu- 6 acres ii. Justus Wepukhulu – 4 acres iii. Daniel Wanjala- 4 acres Plot 70 Webuye Township i. Ben Wafubwa - shop ii. Philip Wepukhulu - 1 room iii. John Wepukhulu iv. Joshua Wepukhulu -1 room v. Justus Wepukhulu- 1 room vi. Daniel Wepukhulu- 1 room -1 room 8. According to Philip, the shop at plot number 70 was built by their deceased father, and the 5 rooms were built by their deceased mother using the proceeds from sugar cane. He accuses Japhetha of appropriating plots at Ngwelo Market and Dina Junction for his own use without their consent. 9. The parties narrowed down the issues for determination as follows: i. Whether the plot at Dina market belonged wholly to the deceased or not. SUCCESSION CAUSE NO. 71 OF 1998-RULING 4

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ii. Whether the plot at Ngwelo Market belongs solely to Japhetha of the deceased’s estate. iii. Whether Philip is entitled to a share of plot number 70, Webuye Township. In the Judgment dated 7.10.22, Judge Riechi gave directions that the firms of Sichangi & Co. Advocates and Onyinkwa & Co. Advocates file and serve upon the court an up-to-date statement of rent collected on account of the estate from the date of the order of distribution among the beneficiaries. Japhetha was also ordered to file and serve an up-to-date account of rent collected to date from 21.10.2004, and that the parties file an extract of the green card relating to parcel numbers Ndivisi/ Khalumuli/ 5451 and Ndivisi/ Khalumuli/4694. 10. Parties canvassed the matter by way of viva voce evidence. I have considered the said evidence on the above issues. Parties also filed written submissions. 11. Regarding whether the plot in Dina Market (now comprised in Title No. Ndivisi/ Khalumuli/4694) belonged to the deceased, Philip’s evidence was that the deceased purchased the property, as evidenced by the agreement dated 10.1.2017. Whilst this matter was in court, the said plot was allocated to Sarah N. Waweru, and it was said that they had obtained title, and that this was done with the consent of all the beneficiaries. Japetha admits that the deceased purchased the said plot with Charles Simiyu SUCCESSION CAUSE NO. 71 OF 1998-RULING 5

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Wanyonyi, that the family neglected the plot for over 47 years, and that it was through the assistance of Justus, Ben, Sarah, Eunice and Ignatius that they managed to recover ½ plot from the registered owner Charles Simiyu Wanyonyi, as per the sale agreement dated 10.1.2017. Japetha exhibited the said agreement. It is evident that the deceased and another party, Charles, bought this plot, and that Charles later obtained title in his name and transferred it to some of the deceased’s beneficiaries. It is evident that the said plot is not available for distribution. The 2017 agreement cannot be challenged in this court, as it is only the Environment and Land Court (ELC) that has the proper jurisdiction to determine land ownership. Article 165(5) of the Constitution is clear that the High Court has no jurisdiction over matters touching title to land. The sale of land concerns title and is therefore not within the High Court's jurisdiction. Those provisions of the Constitution are supported by provisions in the Environment and Land Court Act, the Land Registration Act, and the Land Act. 12. Whether the plot at Ngwelo Market belongs solely to Japhetha of the deceased’s estate. Philip’s evidence and submission are that Japhetha appropriated the Ngwelo plot for his personal benefit without the consent of the other beneficiaries of the deceased’s estate. He attached a letter from the chief dated 15.12.1998. Philip argues that Japhetha obtained the titles during the pendency of these proceedings and that the property should form part SUCCESSION CAUSE NO. 71 OF 1998-RULING 6

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of the deceased’s estate. Japhetha, on the other hand, claims that the said parcel of land belongs to him, that he bought the land, that the deceased did not own the property, and that even from Form P&A 41, which lists the property, the said property is not listed as the property of the deceased. His evidence is that he bought the said plot on 20.12.1987 and that Philip was a witness, a fact Philip denies. Does this property form part of the deceased’s estate? There is an agreement annexed by Japhetha. The contents of this agreement cannot be challenged in this court. Only the ELC has jurisdiction to interrogate the titles Japhetha obtained in 1987. This court can only distribute property that is in the name of the deceased. In the absence of such evidence, I find that the Ngwelo Market property does not form part of the assets available for distribution amongst the beneficiaries in this cause. 13. Whether Philip is entitled to a share of plot number 70, Webuye Township. Philip testified that the plot at Webuye, plot No. 70, belongs to the deceased and that it was initially developed by their late father, with an additional five rooms constructed by their late mother. The family agreed on how to share the property during the clan meeting. Philip submits that a development plan does not confer any proprietary rights on Japetha over a plot not registered in his name. The 1st Administrator has allocated himself the lion’s share of the rooms. Japetha, on the other hand, testified that there is a dispute regarding the distribution of plot No. 70, Webuye. The SUCCESSION CAUSE NO. 71 OF 1998-RULING 7

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parties have agreed that the shop erected therein should be distributed to Ben Wafubwa Wepukhulu, deceased, through his wife, Hellen Biketi. Regarding the rooms, he proposes that he be allocated two rooms, John Muhuyi one room, and Justus two rooms. He further argues that he single-handedly, using his own money, developed the land and constructed the rooms, and therefore he should get more shares than the other siblings. Justus should get two rooms because he stood with him during a difficult period. Japetha testified that their late mother did not construct the rooms. He used his own salary, proceeds from sugar cane, and loans to build the rooms and to connect electricity and water, as shown in the receipts and documents he attached. He has also been paying the rates without deducting anything from the estate. He further argued that he called DW2, who testified that he had contracted him to build the rooms. From the evidence adduced, the 1st Administrator has demonstrated that he developed the additional room. No evidence was adduced that their late mother developed the rooms. It is evident that Philip did not get involved in the construction of the rooms or in the payment of the land rates. The 1st Administrator argues that he is entitled to more shares and has opted to give his other siblings the other rooms he built using his own resources. In my view, the applicant cannot gain from what he failed to be a part of. The rooms belong to Japetha. Philip cannot reap what he did not sow. SUCCESSION CAUSE NO. 71 OF 1998-RULING 8

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14. The last issue concerns rent deposited in the joint names of Sichangi & Company and Onyinkwa & Company. Mr. Sichangi, Mr. Onyinkwa and Mr. Wasilwa filed affidavits, which I have considered. Japetha testified that Mr. Wasilwa was his lawyer and that thereafter Mr. Sichangi acted for him. According to Japetha, rent was deposited with Mr. Sichangi. Some receipts were attached showing deposits to the said firm. Evidence was also adduced that part of the rent went to their late brother. Mr. Sichangi, in his affidavit dated 8.5.2025, averred that there was a consent dated 19.4.2004 requiring all rent proceeds to be deposited in a joint account of both advocates, that an account bearing the names of Wasilwa and Onyinkwa was opened and that they started depositing rent, and that the rent consisted of a cheque of Kshs 3000/- and cash of Kshs 2000/-. That to date they have not received the account statement, as when they sought the statement the bank indicated the account was not in their name. Mr. Wasilwa averred that he never appointed Mr. Sichangi to act for any party. He denied all allegations made against him. He admitted he was paid a sum of 100000/- as legal fees. Mr. Onyinkwa averred that the account in their names had a sum of Kshs. 444875/-, but that the same was forwarded to the Unclaimed Financial Assets Authority. He made efforts to get the amount from the Authority and received the money, paid Mr. Wasilwa Kshs. 100000/- as legal fees, and has the 344875/- which his firm is holding. SUCCESSION CAUSE NO. 71 OF 1998-RULING 9

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15. With due respect to the parties, the evidence adduced does not help this court determine how much rent was received per month from the properties mentioned, who collected how much rent, or what the Firm of Mr. Sichangi is holding as rent received. 16. It is trite law that he who alleges must prove. In law, the burden of proof lies upon the party who asserts the existence of a fact or set of facts. Section 107 of the Evidence Act Cap 80 Laws of Kenya provides as follows: “Burden of Proof 107(1) Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist. (2) When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person.” In the case of Evans Nyakwana -vs- Cleophas Bwana Ongaro [2015] eKLR, it was held that: “As a general preposition the legal burden of proof lies upon the party who invokes the aid of the law and substantially asserts the affirmative of the issue. That is the purport of Section 107(1) of the Evidence Act, Chapter 80, Laws of Kenya. Furthermore, the evidential burden is cast upon any party; the burden of proving any particular fact which he desires the court to believe in its existence. That is captured SUCCESSION CAUSE NO. 71 OF 1998-RULING 1 0

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in Section 109 and 112 of the law of proof of that fact shall lie on any particular person ..” 17. From the evidence adduced, I am unable to determine how the 1st Administrator Counsel arrived at the figure of Kshs 634 250/-, which they claim from Mr. Sichangi, or the 18 million alleged to have been collected by the 1st Administrator. I am unable to make a definite finding on the issue of rent, as the evidence adduced was insufficient to determination. enable this court Receipts were to make attached a final without any calculation of how much was paid, e.g., to the Firm of Sichangi. The receipts attached lack proper analysis. He who alleges has a duty to prove his claim. Parties still have a chance to pursue the respective lawyers for the sums owing or collected and not remitted, if any. 18. Accordingly, I make the following orders regarding the mode of distribution of the deceased’s estate. NDIVISI/ KHALUMULI/572-17 ACRES v. Philip Nasokho - 5 Acres vi. John Muhuyi vii. Joshua Juma -4 Acres viii. Ben Wafubwa ( deceased) – 4 Acres to be given to -4 Acres Hellen Biketi-widow NDIVISI/ KHALUMULI/777- 14 ACRES iv. Japhetha M. Wepukhulu- 6 Acres v. Justus Wabwoba – 4 Acres SUCCESSION CAUSE NO. 71 OF 1998-RULING 1 1

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vi. Sheila Wanjala- 4 Acres PLOT NO. 70 – WEBUYE TOWN iii. Shop to be given to Hellen Biketi iv. 5 rooms, d) Japhetha Wepukhulu- 2 rooms e) John Muhuyi-1 room f) Justus Wabwoba- 2 rooms. The monies held by the firm of Onyinkwa Advocates, Kshs. 344875/-, shall be shared equally amongst the beneficiaries. It is so ordered. Dated, signed and delivered virtually this 19 th Day of August 2026. R.E.OUGO JUDGE In the presence of: Mr. Anwar -For the 1st Administrator Miss Masenegli Protestor -For the 2nd Administrator/ Miss Muresia - For Mr. Onyinkwa Minah/ Fredrick - C/A SUCCESSION CAUSE NO. 71 OF 1998-RULING 1 2

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