https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7355

In re Estate of Wamalwa akaTwarito Wamalwa Dominao alias Twarito Tomiano (Deceased) (Succession Cause 10 of 2023) [2026] KEHC 7355 (KLR) (22 May 2026) (Ruling) Neutral citation: [2026] KEHC 7355 (KLR) Republic of Kenya In the High Court at Bungoma Succession Cause 10 of 2023 REA Ougo, J May 22, 2026 IN THE MATTER OF THE ESTATE OF TWARTTO WAMALWA AKA TWARITO WAMALWA DOMINAO ALIAS TWARITO TOMIANO (DECEASED) Between Stephen Juma Wamalwa 1st Petitioner Rose Nandako Wamalwa 2nd Petitioner and Charles Wanyonyi Wamalwa 1st Objector David Simiyu Wamalwa 2nd Objector Victor Wanjala Wamalwa 3rd Objector Ruling 1.On 13th November 2023, Stephen Juma Wamalwa (Stephen) and Rose Nandako Wamalwa (Rose) filed a Summons for Confirmation of the grant issued to the two petitioners. The petitioners filed a joint supporting affidavit setting out the names of the beneficiaries, the deceased’s assets, and the mode of distribution. 2.The objectors filed an application dated 14 February 2025 seeking the appointment of Charles Wanyonyi Wamalwa as a co-administrator, the revocation of the chief’s letter dated 20 December 2022, and the court’s consideration of their protest dated 18 December 2023 and the county surveyor’s report dated 29 April 2024. The applicant was supported by the affidavit of Charles Wanyonyi Wamalwa. 3.On 13.5 2025, the parties in this matter agreed that the only issues for consideration were whether Charles Wanyonyi Wamalwa should be appointed an administrator and the mode of distribution. The protestors were to rely on their filed affidavits. 4.The deceased in this matter died on 2.1.2022. He left behind the following survivors: Elizabeth Nabangala Wamalwa, Rose Nandako Wamalwa, Cahrles Wanyonyi Wamalwa, Stephen Juma Wamalwa, David Simiyu Wamalwa, Francis Barasa Wamalwa, Felix Maina Wamalwa, Victor Wanjala Wamalwa and Cottelia Naliaka Wamalwa. His assets comprised the following parcels: East Bukusu / North Nalondo / 1512, East Bukusu / North Nalondo / 1099, East Bukusu / North Kanduyi / 570 and plot no. 17 Sikusi. He had no liabilities. This succession cause was originally filed in the Magistrate’s Court and was transferred to the High Court vide a court order dated 19th June 2023. The grant issued by the High Court upon transfer of the lower court file is dated 23rd October 2023. 5.Stephen and Rose filed a joint affidavit and aver as follows; the deceased was survived by the following beneficiaries; Elizabeth Nabangala Wamalwa, Rose Nandako Wamalwa, Charles Wanyonyi Wamalwa, Stephen Juma Wamalwa, David Simiyu Wamalwa, Francis Barasa Wamalwa, Felix Maina Wamalwa, Victor Wanjala Wamalwa and Cottelia Naliaka Wamalwa. The assets are E. Bukusu/N. Nalondo/1512, E. Bukusu/N. Nalondo/1099, E. Bukusu/N. Kanduyi/570, Bungoma Municipality/Plot No.17 (Sikusi Market) and Bungoma Municipality/Plot No.3 (Sikusi Market). They propose their mode of distribution. 6.The 1st, 2nd and 3rd Objectors filed their affidavits of protest dated 18th December 2023. They aver as follows; that the deceased left ten (10) children. The petitioners did not have the consent of all beneficiaries to serve as administrators in the cause. They were not involved when the cause was filed. They filed their application dated 23.10.2023 seeking to have the 1st Objector as a co-administrator and stating that they are not agreeable to the mode of distribution proposed by the administrators. They list the same properties as the petitioners. They aver that what the petitioners have proposed is contrary to their father’s wishes and that, in view of that departure and the need for equality, they have proposed a different mode of distribution. 7.The petitioners filed their witness statements dated 5th February 2024, including one from Pius Makokha Simiyu, their uncle. They recount how the deceased settled his children and argue that the objectors have been aggressive and have denied them access to their parents' grave. The objectors' mode of distribution is unfair and does not reflect the wishes of the late father, as they have denied their daughters their rightful share. Resettlement will be costly. 8.Charles deposes in his affidavit dated 14th February 2025 that he is the eldest son of the deceased. The petitioners have already disposed of the 2 plots, nos 3 and 17. They have concealed material information. They have criminalised him in the process, and he has been evicted from his portion. The surveyor concealed relevant information and stated that the status quo needed to be maintained in accordance with the deceased’s directions. 9.The petitioners, in response, objected to Charles being appointed an administrator. They claim that Charles became violent when they went to carry out a valuation. Charles has sold part of their father’s estate, and a church has already been built on that land. Charles is uncooperative, and appointing him as an administrator will stall the entire succession process. If appointed an administrator, he will impose his unfair mode of distribution on his other siblings. Charles has always snubbed all family gatherings called to discuss the distribution of the property. According to the surveyor’s report, the objectors have already grabbed 2 parcels, 1512 and 1099, and making an administrator will deny the daughters their rightful shares of inheritance. 10.At the hearing, the parties adopted their statements, reiterating what is deponed therein. Charles admitted that by the time the deceased died, he had allocated the land to each beneficiary, and each beneficiary had no issue. He admitted he was given the whole of 1512. He argued that, in their mode of distribution, they had allocated the portions as per the values. He admitted the contents of the surveyors' report dated 29.4.2024. He denied that one acre was to be given to the girls in 570. He told the court that the sisters should be given the plots or inherit what they were given. He wants to be an administrator, as he is the eldest. 11.David, the 2nd objector, adopted his statement. During cross-examination, he admitted that his father had allocated them land and that each person had built on their land. He lives in 1099 with Victor. He admitted that their father had portions of land in his shambas and that he gave Charles parcel no. 1512. His proposal is dependent on the value of the land. He admitted being removed from parcel no. 570. His sisters were to get the plots. 12.The petitioners also testified. They adopted their written statements. They told the court that they were chosen as administrators at a meeting after their father’s death. The objectors refused to attend that meeting. Their father distributed the land. He used each portion of his shambas whilst he was alive. The sisters can receive the portions allocated to them. According to Rose, their father shared the land whilst he was alive, and each son lives in his own portion. 13.Pius Simiyu, their uncle, also adopted his written statement as his evidence. During cross-examination, he stated that he was not aware whether the deceased had given the girls a portion of the land. He urged the beneficiaries to be united. 14.The Objectors' proposed mode of distribution is as follows:East Bukusu North/Kanduyi/5701. Charles Wanyonyi 1.83 Acres2. Stephen Juma 1.83 Acres3. David Simiyu Wamalwa 1.83 Acres4. Francis Barasa Wamalwa 1.83 Acres5. Felix Maina Wamalwa 1.83 Acres6. Victor Wanjala Wamalwa 1.83 Acres7. Elizabeth Nanjala Wamalwa 1 Acre8. Rose Nandako Wamalwa 1 Acre9. Cottelia Naliaka Wamalwa 1 AcreEast Bukusu North/Nalondo/10991. Charles Wanyonyi Wamalwa 1.83 Acres2. Stephen Juma Wamalwa 1.83 Acres3. David Simiyu Wamalwa 1.83 Acres4. Felix Maina Wamalwa 1.83 Acres5. Francis Barasa Wamalwa 1.83 Acres6. Victor Wanjala Wamalwa 1.83 AcresEast Bukusu North/Nalondo/1512 – 2.0 HA1. Charles Wanyonyi Wamalwa 1.83 Acres2. Stephen Juma Wamalwa 1.83 Acres3. David Simiyu Wamalwa 1.83 Acres4. Felix Maina Wamalwa 1.83 Acres5. Francis Barasa Wamalwa 1.83 Acres6. Victor Wanjala Wamalwa 1.83 AcresPlot No. 3 (Sikusi Market)1. Elizabeth Nanjala Wamalwa2. Rose Nandako Wamalwa3. Cottelia Nalika WamalwaPlot No. 17 (Sikusi Market)1. Charles Wanyonyi Wamalwa2. Stephen Juma Wamalwa3. David Simiyu Wamalwa4. Felix Maina Wamalwa5. Francis Barasa Wamalwa6. Victor Wanjala Wamalwa 15.The petitioners mode of distribution is as follows;E. Bukusu/N.Nalondo/1512Elizabeth Nanjala Wamalwa ……….. 1 acreRose Nandako Wamalwa …………… 1 acreCotella Naliaka Wamalwa ………….. 1 acreCharles Wanyonyi Wamalwa ……… 4 acresCharles Wanyonyi Wamalwa ……… 4 acresE. Bukusu/N.Nalondo/1099Victor Wanjala Wamalwa ……. …… 3.7 acresDavid Simiyu Wamalwa…………….. 3.7 acresElizabeth Nanjala Wamalwa ……….. 3 acresRose Nandako Wamalwa …………… 3 acresCotelia Naliaka Wamalwa ………….. 3 acresGravesite to be held in trust by administrators for selves and allmembers of the familyRose Nandako Wamalwa ……. 0.2 acresStephen Juma Wamalwa……… 0.2 acresE. Bukusu/N. Kanduyi/570Elizabeth Nanjala Wamalwa ……….. 1 acreRose Nandako Wamalwa …………… 1acreCotelia Naliaka Wamalwa …………. 1 acreStephen Juma Wamalwa ………….. 4 acresFrancis Barasa Wamalwa ………….. 3.5 acresFelix Maina Wamwalwa……………. 3.5 acresBungoma Municipality/plotNO. 17 (Sikusi Market)Elizabeth Nanjala WamalwaRose Nandako WamalwaCotelia Naliaka WamalwaBungoma Municipality/PlotNo.3 (Sikusi Market)Felix Maina WamalwaStephen Juma Wamalwa 16.Parties filed written submissions, which I have read and considered. Analysis And Determination 17.The two issues for determination are: whether Charles can be a co-administrator and the mode of distribution of the deceased’s estate. The petitioners in this case have strongly objected to Charles being appointed an administrator. They state that he is uncooperative and violent towards them and the other siblings. There have been incidents at home that have even led to his arrest. Charles claims that, as the firstborn, he should be an administrator. I have had the opportunity to deal with the parties in this matter. Although Charles is the firstborn, I found him uncooperative and difficult to deal with. His siblings, the petitioners, complained of his violent acts, an allegation he did not refute. In my view, having him as an administrator could stall the administration of the deceased’s estate. The petitioners have shown that they are capable of administering the deceased’s estate, as they attempted to hold a meeting after their father's death to choose administrators. The objectors did not attend the meeting, and thereafter the petitioners moved to court to file the petition. I therefore decline to appoint Charles as an administrator. I urge him to cooperate with the petitioners and the rest of the family members. 18.The deceased died intestate, with no surviving spouse. Section 38 of the Law of Succession Act Cap 160 provides that: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 shall be equally divided among the surviving children. 19.Section 38 sets out how a deceased’s estate is divided amongst the beneficiaries where there is no surviving spouse, as in this case. I find that there is no dispute amongst the beneficiaries that the deceased had divided his land amongst his sons before he died, and that they have settled on the said portions of land. The objectors have submitted a proposal requiring resettlement. A surveyor’s report dated 24.4.2024 supports the petitioners' proposal. It gives the acreage of the whole land and shows how Mzee settled each son as follows: parcel no. 570- Stephen, Mzee, Francis and Felix; Parcel No.1512- Mzee & Charles; Parcel No. 1099- David, Victor and Mzee. There were allegations that part of the land was sold. I find that there is no evidence to support this allegation. 20.After considering the two modes of distribution, I find that the petitioners’ proposal aligns with what their late father did while he was alive in settling his sons. In the case of Rono vs Rono (Civil Appeal 66 of 2002), the primary principle established was that daughters have equal inheritance rights with sons, thereby invalidating discriminatory customary practices that favour male children. Therefore, the sisters, too, are entitled to a portion of the land (see the Constitution of Kenya 2010). The mode of distribution proposed by the petitioners is fair and equitable amongst all beneficiaries and takes into account their late father’s wishes and the shares due to the daughters of the deceased. The deceased’s estate will be distributed in accordance with the petitioners’ mode of distribution. Each party to bear its own costs. DATED, SIGNED AND DELIVERED VIRTUALLY ON THE 22ND DAY OF MAY 2026.R. E. OUGOJUDGEIn the presence of:Stephen Juma Wamalwa/PetitionerRose Nandako Wamalwa/PetitionerCharles Wanyonyi Wamalwa/ ObjectorDavid Wanjala Wamalwa/ObjectorMr. WanjalaWilkister - C/A