In re Estate of Nasimiyu alias Clare Nasimiyu Wafula (Deceased) (Succession Cause E399 of 2024) [2026] KEMC 592 (KLR)

The Protester further averred that the deceased could not acquire any part of their late father’s land parcel number E.Bukusu/North Kanduyi/318 yet she was not given any part of the said land as evidenced by a Certificate of Confirmation of Grant issued on 25 th May 2011 in Bungoma High Court P & A Succession Cause No. 172 of 2000. 7. He added that given that their late father was polygamous, their house, the deceased’s house, was given 20 acres of land comprised in E.Bukusu/North Kanduyi/318 of which 11 acres were given to him while the 1st Protester was given 9 acres. 8. He further stated that the parcels of land herein reportedly registered fraudulently by the 1st Petitioner do not exist on the ground since they are all comprised in his land parcel number E.Bukusu/North Kanduyi/10350. 9. The Protester described the parcels of land herein as a scheme by the 1st Petitioner to fraudulently acquire two (2) additional acres of land to be hived from land parcel number E.Bukusu/North Kanduyi/10350 for the 1st Petitioner to have an equal acreage of land with the Protester. 10. He proposed that the parcels of land herein be distributed to him. He urged this court to make an order requiring the County Surveyor and the Land Registrar, Bungoma, to ascertain the identity and/or location of the parcels of land herein on the ground. st 11. The 1 Petitioner responded to the Protest through a Replying Affidavit sworn on 06th November 2025. 12. He averred that the Protester was relying on a revoked Certificate of Grant in support of his Protest since the said Certificate of Confirmation of Grant issued on 24th May 2011 was revoked by Mabeya J on 12 th June 2014 in Bungoma High Court P & A Succession Cause No. 172 of 2000. st 13. The 1 Petitioner added that upon the revocation of the said Certificate of Confirmation of Grant, a fresh Certificate of Confirmation of Grant was issued to the Protester and Henry Wabuke on 12 th June 2014. He added that the said grant gave the deceased two (2) acres of land to be hived from their late father’s land parcel number E.Bukusu/N.Kanduyi/874. st 14. Further, the 1 Petitioner averred that since the administrators of their late father’s estate did not have the financial capacity to initiate the transfer of the land to the beneficiaries of their late father’s estate through consultation and involvement of all the beneficiaries of their late father’s estate. 6.

page 2 of 7

The 1st Petitioner denied transferring to the deceased 2 acres of land hived from the Protester’s land parcel number E. Bukusu/N. Kanduyi/318. 16. He reiterated that these succession proceedings were with respect to the parcels of land herein registered in the deceased’s name as evidenced by the said parcels of land’s official searches. He added that the 2 acres of land up for distribution to the deceased’s beneficiaries did not belong to the Protestor. 17. He opposed the Protester’s proposed mode of distribution of the deceased’s estate. He proposed that the deceased’s estate be distributed to him and the Protester equally per the proposed mode of distribution dated 19th May 2025 on record. 15. Parties’ Written Submissions The parties elected to canvass the Protest through written submissions. Whereas the 1st Petitioner filed his written submissions, the Protester did not. st 19. The 1 Petitioner urged this court to dismiss the Protest given that the said Protest did not disclose any ground to warrant interference with the mode of distribution dated 19th May 2025. He cited Estate of G.K.K (Deceased) (2017) eKLR for the position that a consensual mode of distribution freely entered into by beneficiaries should be respected by the court. 20. He also submitted that the Protest was misleading and legally untenable on the ground that it was based on a revoked Certificate of Confirmation of Grant issued in their late father’s estate. He reiterated that this succession cause was with respect to the deceased’s 2 acres of land, which were awarded to the deceased in Bungoma High Court P & A Succession Cause No. 172 of 2000 through a Certificate of Confirmation issued by Mabeya J on 12th June 2014. st 21. The 1 Petitioner placed reliance on In the matter of the Estate of M’mwongo Kichiu (Deceased) (2025) eKLR to buttress his assertion that a revoked grant is void and incapable of conferring any rights. ANALYSIS & DETERMINATION 22. This court has given due regard to the pleadings, the evidence, the written submissions on record as well as the authorities cited by the parties in support of their cases. This court is of the considered view that the issues for determination are: a) What is the deceased’s parcel(s) of land for distribution to her surviving beneficiaries b) What is the mode of distribution of the deceased’s intestate estate 18.

page 3 of 7

c) What other orders commend to this court d) Who should bear the costs of this matter What is the deceased’s parcel (s) of land for distribution to her surviving beneficiaries 23. The gist of the Protester’s Protest is that the deceased was not awarded land from their late father’s estate which was distributed in Bungoma High Court P & A Succession Cause No. 172 of 2000. He placed reliance on a Certificate of Confirmation of Grant issued on 25 th May 2011 showing that 20 acres of land were to be hived from their late father’s land parcel number E.Bukusu/N.Kanduyi/318 for distribution to the deceased’s house, not the deceased in her individual capacity. He added that the said 20 acres of land were later distributed to him and the 1st Petitioner, where he was given 11 acres of land, while the 1st Petitioner was given 9 acres of land. st 24. The Protester further argues that the 1 Petitioner fraudulently processed the title deeds of the deceased’s parcels of land herein, as well as the land title deed number E.Bukusu/N.Kanduyi/10350 in the Protester’s name. 25. He adds that the deceased’s parcels of land herein do not exist on the ground but form part of his land parcel number E.Bukusu/N.Kanduyi/10350/=, which the 1st Petitioner reportedly seeks to hive off 2 acres of land from, thereby disinheriting him. The long and short of the Protester’s case is that there is no land legally registered in the deceased’s name up for distribution to her estate’s beneficiaries. st 26. The 1 Petitioner took the position that the Certificate of Confirmation of Grant issued on 25th May 2011 in favour of their late father’s estated which the Protest is grounded on was revoked on 12 th June 2014 leading to the issuance of a Certificate of Confirmation of Grant dated 12th June 2014 which awarded the deceased 2 acres of land to be hived from their late father’s parcel of land number E.Bukusu/N.Kanduyi/318. st 27. The 1 Petitioner added that he initiated the transfer of land to his late father’s beneficiaries, leading to the creation of the deceased’s parcels of land on record, up for distribution to the deceased estate’s beneficiaries. st 28. This court notes that the Protester did not controvert the 1 Petitioner’s evidence that the Certificate of Confirmation of Grant issued on 25th May 2011, which he relied on to support his Protest, was revoked, leading to the issuance of another Certificate of Grant dated 12th June 2014. 29. That being the case, it follows that the deceased’s estate or parcel of land for distribution to the deceased’s estate’s beneficiaries can only be gleaned from the Certificate of Confirmation of Grant issued on 12 th June 2014 in Bungoma High Court P & A Succession Cause No. 172 of 2000. 30. A reading of the said Certificate of Confirmation of Grant shows that the deceased was given 2 acres of land to be hived from the

page 4 of 7

deceased’s late husband’s parcel of land number E.Bukusu/N.Kanduyi/318. 31. Given the above, it is abundantly clear that the land up for distribution to the deceased’s estate’s beneficiaries is the 2 acres of land hived from the deceased’s late husband’s parcel of land number E.Bukusu/N.Kanduyi/318. st 32. The 1 Petitioner stated that the distribution of their late father’s estate led to the registration of the deceased’s parcels of land herein. A quick computation of the total acreage of the deceased’s parcels of land herein reveals that they add up to 1.11 ha, which is equal to 2.7 acres of land. 33. This court is at a loss on how the 2 acres awarded to the deceased mutated to 2.7 acres. It is also this court’s view that if at all the deceased’s 2 acres were to be hived from land parcel number E.Bukusu/N.Kanduyi/318, then a single title deed in the deceased’s name would have sufficed, unless circumstances permitted the issuance of three distinct title deeds in the deceased’s name. 34. The above, and considering the Protester’s position that the deceased’s parcels of land herein are part of his land parcel number E.Bukusu/N.Kanduyi/10350 requires an explanation by the Land Registrar Bungoma for this court to identify with exactitude the deceased’s 2 acres of land up for distribution to the deceased’s estate’s beneficiaries. 35. In the circumstances, this court finds and holds that it cannot at this stage identify with exactitude the deceased’s two acres of land, which were hived from land parcel number E.Bukusu/N.Kanduyi/318. What is the mode of distribution of the deceased’s intestate estate 36. The Protester argued that given that the deceased was not awarded any land from their late father’s estate, all the deceased’s parcels of land herein ought to be awarded to him since they form part of his land parcel number E.Bukusu/N.Kanduyi/0350. st 37. The 1 Petitioner took a divergent position on the distribution of the 2 acres of land forming part of the deceased’s estate. He submitted that the parcels of land herein be distributed equally between him and the 2nd Petitioner to the exclusion of their sisters per the consent of the mode of distribution dated 19th May 2025 filed herein in line with the holding In the matter of the Estate of G.K.K (Deceased) (2017) eKLR. 38. A perusal of the said consent of the mode of distribution shows that it was not signed by the Protester. Further, the same was not accompanied by Affidavits sworn by the deceased’s daughters renouncing their share of the deceased’s 2 acres of land. st 39. In the circumstances, the 1 Petitioner’s submission that the consent of the mode of distribution dated 19th May 2025 should be adopted by

page 5 of 7

this court as the agreed mode of distribution of the deceased’s 2 acres of land lacks the limbs to stand on in law. 40. The law on distribution of an intestate estate where only a child or children survive the deceased is set out in section 38 of the Act as follows: 38. Where an intestate has left a surviving child or children but no spouse, the net intestate estate shall, subject to the provisions of sections 41 and 42, devolve upon the surviving child, if there be only one, or be equally divided among the surviving children. 41. The deceased was survived by her four children, who are adults. Therefore, going by the provisions of section 38 of the Act reproduced above, each of the deceased’s surviving children is entitled to an equal share of the deceased’s 2 acres of land unless either of them renounces their share of the deceased’s estate or unless they agree on a different mode of sharing of the deceased’s estate. What other orders commend to this court This court has already made a finding that the land up for distribution to the deceased’s surviving four children is the 2 acres of land hived from the deceased’s late husband’s parcel of land number E.Bukusu/N.Kanduyi/318. Further, this court has also already made a finding that, based on the contradictory evidence on record on the identity and/or location of the deceased’s 2 acres of land, it cannot identify with exactitude the deceased’s 2 acres of land for distribution to the beneficiaries of the deceased’s estate. 43. It is this court’s view that the only person capable of identifying the deceased’s 2 acres of land hived from land parcel number E.Bukusu/N.Kanduyi/318 is the Land Registrar Bungoma in consultation with the Bungoma County Land Surveyor. 44. Section 48 of the Act grants this court the inherent powers to grant such orders as it considers just and expedient. Further, Rule 73 of the Probate and Administration Rules provides as follows; 42. Nothing in these Rules shall limit or otherwise affect the inherent power of the court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the court. 45. Guided by the above provisions of the law, this court issues summons to the Land Registrar Bungoma, and the Bungoma County Land Surveyor to shed light on the identity and/or location of the deceased’s

page 6 of 7

2 acres of land, which were hived from land parcel number E.Bukusu/N.Kanduyi/318. Who should bear the costs of this matter 46. This being a family dispute, and in an effort not to antagonize the parties herein further, each party shall bear their costs of the Protest. DETERMINATION 47. The reasons above incline this court to make the following orders: a) The deceased’s 2 acres of land, which were hived from land parcel number E.Bukusu/N.Kanduyi/318 is the deceased’s estate available for distribution to the deceased’s surviving children b) Each of the deceased’s surviving children is entitled to an equal share of the deceased’s 2 acres of land unless either of them renounces their share of the deceased’s estate or unless they agree on a different mode of distribution of the deceased’s estate c) Summons to issue to the Land Registrar Bungoma, and the Bungoma County Land Surveyor to shed light on the identity and/or location of the deceased’s 2 acres of land, which were hived from land parcel number E.Bukusu/N.Kanduyi/318 d) Each party shall bear their costs of this matter Ruling delivered and signed in open court at Bungoma this 17th day of February 2026 T.O. OMONO SENIOR RESIDENT MAGISTRATE In the presence of: Mwashi for the 1st Petitioner C/A: Mr. Rioba

page 7 of 7