https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11895

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT MIGORI** **SUCCESSION CAUSE NO. 12 OF 2018** **In the Matter of the Estate of Andrea Odongo alias Andrew Okeyo alias Andrea Okeyo (Deceased)** **between** **ODONGO MARK OKEYO & 2 OTHERS……………….…………. PETITIONERS** **versus** **STEVE OMONDI OKEYO & 3 OTHERS ………..…….………. RESPONDENT** **RULING** Summons for confirmation dated 24th February 2020 was filed on 2nd March 2020 to confirm grant made to Odongo Mark Okeyo, Billy Okeyo and Moses Odongo Okeyo on 4th February 2019. The Administrators proposed with the consent of the beneficiaries that the estate be distributed as follows:- 1. A third of the estate to be shared equally among Odongo Mark, Fredrick Okeyo, and Dancun Owuor Okeyo. 2. A third of the estate to be shared equally among Christabel Auma Okeyo, John Miller Okeyo, Moses Odongo Okeyo, Steve Omondi Okeyo and Andy Joseph Odongo. 3. Athird of the estate to be shared equally amongst Mary Adhiambo Okeyo, David Onyango Okeyo, Billy Okeyo, Bob Collins Okeyo and Jeremiah Ochieng Okeyo. 4. It was also proposed that the estate’ duties to be paid from the estate funds at Kenya Commercial Bank Migori branch. The summons was premised on the grounds on its face and the supporting affidavit sworn by the Administrators on 24th February 2020 and duly signed consent for the mode of distribution dated 24th February 2020 and signed by:- 1. Christabel Auma Okeyo 2. Mary Adhiambo Okeyo 3. Moses Odongo Okeyo 4. John Miller Okeyo 5. Mark Odongo Okeyo 6. Fredrick Otieno Okeyo 7. Ben Okoth Okeyo 8. David Onyango Okeyo 9. Billy Okeyo 10. Dancun Owuor Okeyo 11. Andy Joseph Odongo 12. Steve Omondi Okeyo 13. Bob Collins Okeyo 14. Jeremiah Ochieng Okeyo From the Petition for grant of Letters of Administration the assets listed as making part of the estate property are:- 1. Suna West/Wasweta II/ 409 which asat 23rd May 2018 had a caution in favour of Odongo Mark ……measuring 23.8 HA 2. Suna East/ Wasweta I/ 6709 which also had caution in favour of Odongo Mark as at the time Certificate of search was being issued with subdivision No 2964 measuring 0.13 HA 3. Suna East/ WaswetaI/1583 against which Mark Odongo Okeyo ha lodged a caution with subdivision No. 390 measuring 14.3 HA 4. Suna East/ Kakrao/2402 against which Mark Odongo Okeyo had lodged a caution with subdivision No. 322 measuring 36.9 HA. 5. Suna East/Area B Kwa/1141 against which Mark Odongo lodged caution with subdivision No. 592 measuring 11.3HA 6. Suna East/ Wasweta I/10961 which is in the name of Nyakebati Johnes Chacha with subdivision No. 11032 measuring 7.47 HA 7. Kanyamkago/KawereII/958 which had a caution lodged in favour of Thabiti Finance Co. Ltd with subdivision N0.96 measuring 16.1HA 8. Suna West/ Wasweta/336 in the name of Andrea Okeyo measuring 8.4 HA Upon service of the summons for confirmation Christabel Auma Okeyo and John Miller Okeyo through the firm of M/S Okongo Wandago and Co. Advocates filed an affidavit of protest sworn by John Miller Okeyo on 2nd June 2020 for reasons that some beneficiaries to the estate including daughters had not been included in the list of beneficiaries and that some assets had also not been disclosed and/ or included in the list of assets to the estate. Steve Omondi Okeyo also filed affidavit of protest sworn on 24th August 2020 through the firm of M/S P.R. Ojala and Co. Advocates listing 21 beneficiaries including two widows and seven daughters. The 1st Protestor averred that he was not consulted on the mode of distribution as evidenced in the consent dated 24th February 2020. He also averred that the Petitioners had not disclosed the exact amounts in the deceased’ bank accounts and shares in companies and all parcels of land had also not been disclosed. He said that he was an only son in his mothers’ house and he should not be combined with step siblings from another house. He proposed that the assets be valued and accounts be taken before distribution is done. In a letter dated 29th January 2020 Thabiti Finance Company Limited (in liquidation) wrote to Gilbert Oginga Okeyo informing him that LR No. Kanyamkago/KawereII/958 secured a loan facility that was outstanding at Kshs 14,543,138.40 which Gilbert Oginga Okeyo had failed to clear despite the many correspondences. The Finance Company gave a notice of sale if the amount is not cleared in 40 days. Odongo Mark Okeyo and Billy Okeyo in response to the protest swore an affidavit on 28th August 2020 through the firm of M/S Otieno Okeyo and Co Advocates and their affidavit can be accessed through the CTS. Samuel Okombo Ondiegi cousin to the deceased also swore an undated affidavit in reply to the protest. Similarly, Evans Okeyo, Lukio Otieno Nyachiro, Julius Okombo Onyalo, Eunice Adhiambo Ndegwa, Mary Awuor Okeyo and Charity Achieng Okeyo also swore affidavits in reply to the protest. Before hearing of the summons and protest application dated 12th March 2021 was filed under certificate of urgency by the Administrators seeking to restrain Hellen Odira Okeyo from trespassing, wasting, building on, interfering with or dealing with in any way LR No. Suna East/Wasweta I/ 16961. Reponses to the said application were filed and directions were taken for hearing by way of submissions amidst the court also directing parties to try an out of court settlement but it did not materialize and the application was abandoned for hearing of the summons for confirmation and protest. The 1st Protestor Steven Omondi Okeyo testified that Okeyo Andrea Odongo the deceased herein died in 2012. He said he was residing at Kadianga in Suna East, Suna Central the Ward. He said that the deceased was his father and he had 5 wives with his mother being the last wife. She was Monica Atieno Okeyo. She died 1994 when he was young. She was buried near Banana in Kimaiga Migori. He said he was the only child to his mother. He said he was the 16th son to the deceased and the youngest of his brothers. He said he came to court because he did not agree with mode of distribution of Okeyo’s property. He said he filed affidavit dated 24/8/2020 and later he filed a list of documents. He said he know Mark Okeyo who was the second born. He said the Administrators are Billy Okeyo, Moses and Mark Okeyo. They appointed themselves. They filed application for distribution. He said he did not agree with the schedule. There are plots that have not been included. Plot No. 37A Suna / Marindi. Seme / 1583, Wasweta 1 / Suna East 40B Suna. He said that he did not know why they did not include them. They appointed themselves and said they were looking for the property of Okeyo and then we go to court. The Administrators were appointed at a meeting. A letter came from Nairobi from Fred Okeyo for people to sign. He said he needed the letter which indicated that they had agreed to come to court. When he asked John Miller why the other properties were not included, he said that he should have asked them why they left out some of the plots. They also left out Bank Accounts. He said he did not know how much was in the Bank Accounts. That it is the Administrators who know. They said they were using money in account for Succession but did not disclose how much it was. The girls had not been listed as beneficiaries and he mentioned all the girls that had been left out. He said that he did not agree with the letter proposing distribution. He said he knew Christabel Auma Okeyo, John Miller Okeyo, Moses Odongo Okeyo and Andy Joseph Odongo. He said that Christabel was not his mother and he did not know why he was placed in Christabel’s house. When his mother died, they all wanted to pull down his mother’s house. He said he was in the meeting. And he refused and the house stands to date. He said he does not accept to inherit 1/3 from Christabel’s house. He said he did not sign that proposal. When his father died, he had talked to him and he e never left him in Christabel’s house. He said his father gave him land. He said the land that his father gave him is included in the schedule but there is no proposal that he inherits that land. He said he does not know what 1/3 means. They estimated the estate at 9 million. There were no liabilities. They did not say what liabilities are and he would like to know. He said the deceased gave him Kakrao/ 2402. He also said he would like a share of money in the bank. He also requested to have his exhibits admitted EX 1-5 In cross examination by Mr. Odero Advocate the witness said that they have never sat as family and agreed on the deceased’s property. He could not confirm that all that is returned in this case is his whole property. We do not know how much money was in the bank. He said his father had an account in KCB, National Bank and Co-operative Bank. He said that he knew there is money in KCB but he did not know the amount. He said the account was blocked when he tried to find out how much money was there. The 1st Protestor also said that there was rent that was being collected from Plot No.37A and 403 Migori as they are business premises that are let out. He said he did not know the occupants of the premises. He said it is Mark who knows who collects rent from the said premises but tenants have been in occupation since his father died in 2012 and they are still there. He said the plot was given to Christabel Auma who is a wife to his father. He said that John Miller Okeyo was his brother. In cross examination he said that the 4th Protestor was his sister from Christabel Auma’s house. He said that Christabel Auma was the 3rd wife of Andrea Okeyo and she was alive. He said that form P & A 5 did not have Hellen Odira as beneficiaries to the estate of Okeyo and he did not know when she ceased to be Okeyo’s child. He said that there are many other sisters who are not included in the list as Okeyo had sons and daughters. Land on which Hellen was occupying Suna East Wasweta 1/16165 was not included in the schedule of properties in P & A 5. He said that his sister lives there. There are sons in the home and daughters. Hellen lives in his fathers’ land. Chief’s letter dated 8/5/2019. Letter by Chief Suna Central Location. This land was not listed in deceased’s property. There are no daughters listed as heirs in the letter by the Chief. In cross examination by Mr. Jura Advocate the 1st Protestor said that he is a tailor. He said the deceased had 5 wives. He said his mother was living with deceased at Kadika and she died in 1994 when he was small. He said his mother’s house is there although he did not have a picture of the mother’s house. He said he did not have his mothers’ birth certificate and he had have never gone for birth certificate. He said he was 36 years old but he did not know why his father was buried away from Kadika. He said he was about 3 years when his mother died in 1914 and he was left in the home of Okeyo. He said he used to be taken to different houses. When his mother died he used to live in Christabel’s house and he was later removed and taken to Okeyo’s mother’s house. In Christabel’s house, he said he was mistreated and did not learn well and that is why he feels uncomfortable. He said he would have to stand alone. Before these proceedings a letter came from Nairobi. That he did not sign the second but signed the 1st letter after he read it. PW1 said that before the petition was brought to court. They sat down but they did not agree. He said they went to KCB and were told they should go with a letter from court. That in 2018 he was in court but he had never asked court that he should be given an order to ascertain how much is in the bank. PW1 also said that there are some plots that are rented and he did not know who collects the rents. That he had never gone to see who does business in those plots. He opposed the mode of distribution but did not write his mode of distribution. He said the deceased’s daughters were left out but they did not grant him leave to act for them. They know about the cause. Mary Ojodeh was left out; Eunice Adhiambo Ndegwa, Mary Anne Ojode. Clarity Otieno Okeyo are his sisters who are not on the list. He said that he did not know if they filed affidavit saying they have no objection to distribution. The other daughters have not filed any objection to confirmation. Nobody has built in the piece of land. We only cultivate. We do live at home. PW1 said he has land that he cultivates. He said he was given the land by the deceased. He said that others cultivate land given to the deceased. That others don’t cultivate but have fenced. He said he would like to be given the land in Kakrao and he would like the others to be given their pieces of land if the deceased gave the land to them. PW1 said he knew Lukio Otieno Nyachiro as a surveyor and a first cousin to his father. He said Lukio measured the land but stopped measuring when their father died. He was measuring the land as they had sat and agreed on distribution. After death of deceased, they interfered with distribution. He said he would like this case to end but he should get his right. He said he had no problem with the administrators continuing to administer provided all the properties are included in the distribution and those left out come and say they have no interest in the properties. Between Mark Okeyo and Miller, John Miller is the eldest. He said he could could not confirm that John Miller and Mark Okeyo have been fighting over who is the eldest in the home. In cross examination by Mr. Ojala Advocate PW1 said that all the Administrators agreed that he is son of Okeyo and that he was given land in Kakrao. That in distribution they never indicated that he was entitled to land in Kakrao. He said he had never gone to the premises to ask who is paid rent and he did not know who receives rent. When his mother died, he was taken to Christabel’s house where he stayed for 6 months and was taken to his grandmother’s because he was being mistreated, not going to school and looking after cattle. His grandmother died in 1995 and he stayed with his uncle who lived with the grandmother. He said that his father never said he is Christabel’s son. PW2 Hellen Odira Okeyo testified that she lived in Saayote village and that she sells vegetables. She said the Petitioners were her brothers Odongo Mark, Billy Okeyo and Moses Odongo Okeyo. She said she did not know about the filing of the case and she did not sign consent they brought this case to court. She said that she did not agree to them being Administrators. She said the Chief’s letter did not include her name as a beneficiary and the deceased’s daughters were excluded.She gave the names of the daughters from the 1st House as:- Eunice Adhiambo; Faith Deya’s **2nd House:** Grace Akinyi Okeyo, Jane Atieno. Hellen Odira (self), Beatrice Achieng Okeyo, Caroline Owino, Millicent Apiyo Okeyo; Maryanne Okeyo. **3rd House:** Eunice Adhiambo, Mary Ojode Okeyo **4th House:** Benta - (deceased) Charity Okeyo and Rose. She said that in the 5th House there was no girl. She said that P & A 5 refers does not include her name not included and does not include the names of her sisters. She also said that they are also not included in the m**ode of distribution**: PW2 said she had not renounced her right and interest in the estate. She said she lives at Saayote Suna East/ Wasweta 1/ 16961 which is in the name of Andrea Okeyo Odongo. She said she had lived there for 12 years. She said the property in which she lives is not included in deceased’s properties and she did not know why they omitted it. That is the land from which they wanted to evict her. She said she did not know if there are other properties that are not included. Hellen said that she knew the deceased had Assets in several banks. The Administrators have never disclosed to her all the deceased properties and money and she not keen on them continuing to be Administrators. She would like all the properties to be listed and each beneficiary to get their share. In cross examination by Mr. Odero Advocate, PW2said she is 57 years old and that she is daughter of Christabel who was still alive to date. She said she knew John Miller Okeyo who is her elder brother from the same house. PW2 said that her relationship with Mark was not good as Mark could not open for her his door even if she slept at his veranda. She said that her daughter died and Mark never went for the funeral. She said the same applies to Billy and Moses who is her youngest brother. She said Moses is from same mother. 1st mother was Akeyo and she could not remember when she died. That she died when giving birth to her second born. The first 2 are daughters of Akeyo. Eunice and Ruth. They are alive. Faith lives at Namba in Migori and she is married in Seme; Eunice lives at Kanyamkago and married there. The problem in this case is that the Administrators did not provide for her at all. She said it was not easy to meet her brothers. That she had tried and failed. That she could not even take tea with them. Hostility was there even when her father was alive. That their father tried when alive and failed to distribute his estate. She said she would like the court to make an order as to what each beneficiary is entitled to. In cross examination by Mr. Jura Advocate PW2 said that she was daughter of the deceased from Christabel’s house. That Christabel was also a protestor in this case. That she could not tell if Christabel was included in the cause. She said she knew Miller who is her elder brother from same mother. She also said she knew Steve Omondi who is her brother. That when Steve’s mother died, he stayed in her mother’s house. She said her father had 4 wives. She said that she knew a man can have a child with a woman but it does not mean they are married. She said she lives in Saayote within Migori. She said the land on which she lives is very big. From the search it is 3.2 ha- 8 acres. It is an estate within town. She said she is not entitled to the whole and. She said the father gave mandate to the 3 mothers. The land is in the name of her father and it forms part of his estate. That her father gave Luke mandate to distribute but she did not know if he gave the mode of distribution. That he left3 parcels. Saayote & Kakrao. She said she did not know who resides on the land in Kakrao. That the deceased distributed in terms of 3 houses represented by a wife. That she was told by Miller about the distribution. That she occupied the Saayote as daughter of deceased and the daughter of Eunice. I do not cultivate over 2 acres. She had built a permanent house, planted maize and trees. She said the 6 acres are occupied by some people whom she does not know. That about 8 – 10 families are living there and she found them there. Some say they have been there from 20 – 30 years. She said she lived there with consent from her father and that she is in good relationship with Christabel. Faith lives at Namba area. From Saayote to Namba is not 3 Kms. Faith is aware of this case. She is rich. PW2 said that she would like each person to get there share even she is evicted from Saayote. She said all Administrators have a problem with her. Even other sisters will confirm the same. She said she does not want Mark to be Administrator. The 3 Administrators, Odongo Mark comes from house of Tamina – 3rd wife. Billy is from House of Nekesa Adhiambo, 4th House Moses Odongo is from house of Christabel. All the three are from the 3 houses. She said she had not decided on who should continue with the case and the court to decided. She said she does not know all properties of deceased. She said she came to court to get my right but she had not filed her mode of distribution. She said all she wants is Saayote land. She said she did not know how much was in the bank accounts. In cross examination by Mr. Abisai Advocate, PW2 said that the Administrators excluded her name in the mode of distribution. She said her mother is not alive. She said that at Paragraph 5 of the affidavit in support of the petition and summons for confirmation did not have account number, She said she came to court for her right to her father’s estate even if the others don’t claim. She said that she was occupying part of Suna East Wasweta 1/ 16961. That the other people in occupation were not children to the deceased. She said It was for the 3 Administrators to disclose all the properties so that the court can distribute. **Mr. Jura Advocate** requested that court orders that the amounts in that account be disclosed and **Mr. Ojala Advocate said he** had the Account number of KCB in Migori The court ordered that all counsel to get together and come up with a list of all the properties that constitute the deceased’s estate within 14 days. That KCB Migori Branch do disclose to the court the amount held in Account No. 110357938 – Andrea Okeyo Odongo as at 18/10/2012 and as at 13/2/2023. The Administrators were also ordered to disclose the Bank Accounts held at co-operative and National Bank and in default each party do come with their list of the properties and proposed mode of Administration. Matter was set for further hearing on 27/3/2023. On 27/3/2023 **Mr. Ojala** Advocate informed the court that they extracted the order and served KCB branch. The initial outcome was that the account number was non-existent and that Okeyo was not their customer. That they followed up and was advised that because it is an old account they will check with the Headquarters in Nairobi. That they informed parties about the last order but there is no response. That his client told him they are still doing discovered and requested for time. **Mr. Odero Advocate also asked** for more time for discussions so they could finalize accounts. Mr. Jura Advocate similarly requested for more time. He said it is clear that the parties are not ready with the hearing. The court ordered for further mention to allow for discovery of the deceased’s estate on 10/5/2023. **On 10th May 2023 Mr. Odero** Advocate informed the court that the 2nd and 3rd protestors had finalized documents and requested for a date for hearing. **Mr. Oseno Advocate informed the court that** Mr. Okeyo was ready with 7 witnesses and asked for time allocation. Mr. Ojala Advocate said that Mr. Okeyo should be clear with the witnesses as there are no witness statements. **Mr. Abisai said t**here are protests filed. If Mr. Okeyo wishes to proceed, he should do so with or without statements. It may be a gimmick to adjourn as they refused to file list of assets. **Mr. Odero** Advocate responded that they are anxious to proceed and they should proceed on basis of statements or affidavits on record. He was strongly against introducing strangers into the case when they had filed statements and affidavits. He was against leave being granted to file affidavits at this stage. The court gave directions that the matter to proceed based on the written statements and affidavits on record. PW3 Christabel Auma Okeyo testified that she came from Wasweta/Kadika School. That she knew Andrea Okeyo who was her husband. She said she did swear an affidavit which she adopted as her evidence in chief and relied on it. She said she would like to get the money which her husband left in the bank account and she would like land shared equally amongst the children of the deceased. In cross examination by Mr. Abisai Advocate PW3 said that Andrea Okeyo had many daughters who are entitled to the estate. In cross examination by Mr, Okeyo Advocate, Christabel Auma Okeyo said that before the deceased died, he had not divided the estate. He did not call a meeting of clan and children to share out the estate. She said that anybody claiming that he called the clan and children to share out the estate is a liar. In cross examination by Mr. Odero Advocate, Christabel Auma Okeyo said that **the d**eceased had daughters with her and for her co-wives. She said the estate is still in the name of the deceased but not all beneficiaries enjoy it. PW4 JOHN MILLER OKEYO testified that he was resident of Kadika Village Suna Central Ward, Migori. He said he was a farmer but a retired teacher. He said Andrea Okeyo was his father. He relied on his affidavit of protest sworn and filed on 2/6/2020 as his testimony. He produced documents annexed to the affidavit as exhibits. Annexture 5A ,2 Paragraph 2, I wish to mark it as PEX 6(a) by consent. Certificate of official search PEX 6 (a). JAM 2 (Paragraph 22) to be produced as PEX 6 b. Certificate of Official Search produced as PEX 6 (b). He said he was not in agreement with the mode of distribution in Paragraph 2 of the supporting affidavit to application dated 24th February 2020 because he did not understand it. There was no consent by the family as to the mode of distribution before the proposed mode was filed in court. He said he was not consulted. Affidavit of Okeyo Mark Okeyo with mode of distribution with the beneficiaries and his name at number 4 – His signature is missing because he was not understanding the mode of distribution. Prayer 2 (d) of the Summons; it was proposed that monies held at Migori branch be used to pay estate duties. He said he was not aware of any money at KCB Bank. An enquiry was to be done in a meeting on the amounts in the KCB but they had not met to determine the beneficial interest of each beneficiary. He said he is 1st born to Christabel Auma Okeyo, who had also not signed it. In cross examination by Mr. Ojala Advocate he said that he was deceased’s son. He said the deceased had 16 sons and many daughters. He said he did not know the number of daughters. He said the application for confirmation of grant filed by Administrators all names are not included. In that application no property is specifically indicated. In the affidavit no property is mentioned. I do not know what is for distribution. I do not know why the contradictions. I refused to include the properties. There has been no forum to ask the Administrators. He said he was seeing the administrators in court today. He said he knew Steve Omondi Okeyo who is his step brother – father one, but different mothers. He said that Steve did not sign the mode of distribution but he signed it. He said it shows agreed mode of distribution. In cross examination by Mr. Abisai Advocate, John Miller Okeyo said that Hellen Odira is his sister from same mother and father. He said the family of Okeyo is a respected family and people have gone to school well. He said they will not discriminate against their sisters in distribution of their father’s wealth. There have been many meetings.Proposed mode of distribution dated 21/2/2020 – none of their sisters signed the mode. That is not right. They should be included in the distribution. List of beneficiaries. Form 38 – List of beneficiaries of estate when petition was filled – none of his sisters was included in the list. It is not right. Form P & A 5 deceased’s properties are listed as 20 – except for 1. acre of land in Suna East area but that is not all that his father had. He had more. He said that they have not sat down to ascertain what his father’s estate comprises of. There is none of his sisters who have come to court to renounce inclusion in the deceased’s estate. In cross examination by Mr. Okeyo Advocate John Miller Okeyo said that **a**fter death of deceased he called a meeting but he could not remember what was discussed in the meeting. Meeting discussed Succession. That before his father died, he called the clan and children to talk to them. He said he could not remember who took the minutes of that meeting. He said the deceased was sick and called all sons and 3 of his step brothers and gave instructions to the stepbrothers on what should be done particularly on land matters. He assigned them a duty to allocate the parcels to his children and stated that in terms of fertility it varies in each of the parcels. He directed that each son should share in whether parcel was to be distributed. In Land parcels, the brothers demarcated according to the 3 houses. He did not direct that the parcels be divided into 3 equal parcels. Instruction came from the brothers to divide into 3. He said he was present when demarcation was done and he raised objection in one parcel. He said he could not recall if instructions were carried out during life time of his father. As regards Steve Omondi Okeyo he could not recall the deceased giving any instructions. He said he could not recall any instructions the deceased gave over Odongo. Form 38 – Petition – he confirmed he was listed as No. 3 and he signed the documents. Paragraph 12 of his protest – he talked of properties in town. Paragraph 14 where Duncan collects is next from property belonging to the estate. Replying Affidavit of Mark and Billy Okeyo filed on 4//9/2020, MB2, Search certificate shows that it is registered in name of Ogaga and Terminah Okeyo. Paragraph15 -, property where Moses collects rent for himself and that of his mother. I do not know if Moses used to collect rent from there when my father was still alive. Paragraph 15 – rent was being collected pursuant to deceased’s own directive. Deceased made the directive when the mothers were present. Paragraph 16. Jeremiah Ochieng. Directive was made on that meeting. At the meeting where deceased gave directions they talked of the property where Hellen lived was his widow (meaning for his enjoyment). He said he did not know if he intended to sell it to enjoy with his wives. He said he did not know about the land being discussed by Luke and Moses. He never heard the deceased saying that he intended to sell and any of his sons could bid for it. He said he could not recall whether Hellen was occupying the Ragana property LR. Suna East / 16691 at the time. Paragraph 18 – 21 – he said he was not disowning the evidence that Hellen lived there. Hellen only have been living on the parcel but not legally. The deceased never gave any direction on the mode of distribution before he died. We never discussed the issue of disinheriting the daughters of deceased. In cross examination by Mr. Odero John Miller said that there was no consensus due to inability to meet and agree on present distribution.He said he did not know why they were unable to meet. There has been no meeting on distribution. Paragraph 24 of the joint affidavit of protest, there are several dependents of Okeyo who are entitled to the estate but have been excluded. Summons for confirmation refers Daughters are included in these who are to get fractions of the estate. His only problem was the manner in which the Administrators want to distribute. He had no problem with them being Administrators. Paragraph 20, 21, 22 of the joint affidavit of protest 1 – 16 a b refers to Ragana plot – the property refers which Hellen resides on is not included in the proposed mode. He said he wanted the said property included so that it forms part of the estate. It was not sold to anybody by his father before he died. Paragraph 29 of joint Affidavit, paragraph 51 and 52 – mode of distribution was vague and will expose the family to unwinding conflict. It should be distributed equally and fairly. At the close of the protestors case Mr. Okeyo Advocate for the Administrators called 5 witnesses **who were scheduled to testify** on 7th and 8th November, 2023. DW1 ODONGO MARK OKEYO testified that e was one of the Administrators of the Estate of Andrea Okeyo. That he heard the protestors evidence and in response he swore a Replying Affidavit dated 28/8/2020 and another sworn on 20/9/2021. He adopted the two Affidavits as his evidence in Chief and wished to put the court in perspective as to what let to this situation, they found themselves in. He said he a lawyer admitted on 9/12/1988. That he was a member of competition Tribunals where he was serving as member and an officer of this court. He said he was compelled to help court arrive at fair, just decision. In 2008, his father called him using the phone of Jerry Ochieng his step brother and told him John Miller 3rd Protestor and Tom Okeyo (deceased) had been…… **Mr. Abisai** objected to the kind of evidence being led by the witness and the court upheld the objection and advised the witness to go straight to what the meeting was all about. **DW1 proceeds:** **That the deceased said that a**ll male children of the deceased were present and chairman now deceased and the deceased’ brother Nyachero a land surveyor was present. He said that his father lay in bed and they were in sitting room including 3rd Protestor and Steve Omondi 1st Protestor. The deceased was leaving his oral last Will. He decided that his property be divided into 3 portions as per the houses as follows:- 1. Termina Okeyo – Deceased – My mother 2. House of Mama Christabel – my step mother 2nd Protestor and Mother to 3rd Protestor. 3. House of Mama Mary Adhiambo Okeyo, my step mother to Billy Okeyo. Moses Okeyo an Administrator is blood brother to Miller Okeyo. That his father named all protestors and how to be shared. The plot where their homestead stands was given to his brothers. That he was not given anything within the homestead. One portion to Fred, Dan, Ojwang, Bill and Ben. Next to the school, he sub-divided plot allocated to his children and Luke Otieno will testify to it. He said he was not there then. Plots in town were assigned and the last born of the 3rd house. After end of meeting, he appointed following person to visit the plots and identify the portion each Household would take. 1. Luke Otieno Nyacheo – Surveyor Termina, Tony’s mother, Tom Okeyo (Deceased); John Miller Okeyo – 1st born in Christabel’s house; household included the girls. Last household David Onyango Okeyo was to identify the plots. They went viewed parcels of land and identified them and a report given back to my father. There were meetings chaired by 3rd Protestor and the following persons were appointed Administrators of the estate he – representing Termina’s house, Billy Okeyo – representing Mary’s House and Moses Okeyo representing Christabel’s house in this meeting 2nd born were expelled as Administrator whereas the 1st born went to identify the land. Plot in town LR Suna East Wasweta 1 / 16961 – it was not given to anybody. It is called “Mondo” (Luo)left to the deceased to sell and used by himself. He said that if anybody had money, they could buy it from him. It was not assigned to anybody. Currently, people stay there but at time of deceased’s demise nobody was staying there. DW1 said that his father had given a small portion of it to the Church. In regards to the Protestors – his sisters he said they well taken care of. He said that Plot Kanyamkago Kawere/ 11958 is in dispute as it was as a collateral to take a loan. He said Hellen Odira should come to court with clean hands; 4th Protestor. She has erected permanent structures. It was for their father. It should be divided into 3 equal houses and let each house deal with their portion. Nobody has mentioned him as being an improper administrator and no properties have been sold. Administrator be confirmed so that we can do what our father wanted to do in his life time. If we have not included some properties they can be included. Delay is causing wanton destruction of the estate. Billy Okeyo is Administrator and affidavit dated 28/8/2020 was sworn jointly with him. In cross examination by Mr. Ojala Advocate, the 1st Administrator said that his father was a very generous person. He was a teacher and even in Commission in Electoral Commission of Kenya.He was blessed with wealth. He knew how to read and write in the meeting of 2008. He said minutes were taken by late Isaiah Gumbe. He said he was not custodian of the minutes and he did not have a copy. He said his father called him, Isaiah Gumbe and settled some of the sons on his land. He said there were properties given according to houses. It was according to sons and houses. He said a certain son for a particular house will settle in a particular place. He said all Children are beneficiaries. He said he did not do the pleadings. He said he was willing to include all the children of the deceased. He confirmed that in Form 38 they did not mention all the beneficiaries and they did not mention all the ladies. There was an omission which was corrected. He said he did not know all the deceased’s properties but included all that he knew. He said he indicated that funds in Bank to settle the debts up to now. He said they had not accessed the account. He said the debts are medical bills. He said he did not know how much the medical bills were. He said the account was held at KCB Migori but he did not know the account number. He admitted the Succession Cause as filed is incomplete. He said that what he knew he had disclosed and the Succession is now complete. There is nothing perfect in life. He said he has not seen the plot No.37a Suna / Marindi/Suna West. That if evidence is supplied, they shall accept it. He said plot No. Suna East /Wasweta /1583is for his brother. Plot 40B Suna Ragana Suna West if it is in the name of the deceased, it belongs to the estate. He said that it might be difficult to bring all family members and property together. That if anybody has information about the estate, then he should give it to the representative of that house to forward it to the Administrators. In cross examination by Mr. Odero Advocate, the 1st Administrator said that Summons for confirmation dated 24/2/2020. Prayer 2 (a) (b) and (c) 1. They were to share a third of the estate – 1/3 of the Estate, He said he did not know what 1/3 of the estate is and he had to do mathematics on it. He said the summons is not fatal. The plots assigned to last born son is in the properties they were to be given as per the wishes of the deceased. He said the last born are Moses Ojwang, Dan and Jerry and Dan was given plot 72B Migori Ragana Suna West, Plot 65 Migori Market, Migori Ragana Suna West for Moses Ojwang – takes Rent. 2. Jerry collects rent from Bata shop No. 72 and the three still farm part of the deceased’s estate. There is no prayer in the Summons that the three properties be transmitted to the three last born sons. My consent dated sworn on 11/5/2018 in support of the portion. The three plots are not listed. It was presumed that the three do own them. Prayer 2 (a) of the Summons the names listed are Mark, Fred, Ben and Duncan. Frederick is the Advocate representing himself as a son to the deceased and a beneficiary. Next to the school deceased assigned plots. They still form part of the whole family land where all sons except me stay in there. There are drawings of the land. The Surveyor has them. There are no records in the pleadings but they are on the ground. He said he obtained grant in February 2019 and he approached the bank but he was asked for confirmed grant because one of the beneficiaries wrote to say there is a dispute. He said he did not take out proceedings to get the balance at the bank. In the Summons prayer (d) estate dues be paid from funds at KCB. It was meant to be estate dues not duties (Estate Duty has been done away with). Property by possession he has to pay stamp duty because some properties are in town. He said that they were making provision in anticipation. Intention was not to mislead. Suna East /Wasweta /16961 was still part of deceased’s estate. There are trespassers on that land. Hellen Odira. He said he had not been there of late but he knew Hellen has built a structure there. The land would not escape his attention. He said he could not tell why the property escaped his attention but it was not disclosed in the petition. If not included it was an omission. He said he had no problem with it being included in the estate. He said he did not see the need to bring petition it as testate with oral Will. He said he did not mention that it was an oral will but mentioned witnesses to the oral will. He said that it was a wish on how the deceased’ property should be shared. He said he believe each house can sit and come up with the amendments if contradictions are in the application. He also said that the girls can be added. In cross examination by Mr. Abisai Advocate, the Administrator said that he signedthe affidavit supporting the petition. That at Paragraph 4 he had stated that deceased intestate and named (a) (h) he confirmed his father died intestate. That is why they were here for court to subdivide the estate to his dependents. He said he had left out a big number of dependents. The girls are Eunice Ndegwa, Mary Ojode, Hellen Odira, Akinyi Nyar Town, Charity Okeyo. They might be more. They were known to me when preparing the documents. He said they did not intentionally leave them on. At Paragraph 4 he said it is not true that only those were his father’s children. He said his father did not disinherit anybody. He talked of mode of distribution. He said two of his sisters had filed Affidavits stating that they denounce their rights to inherit. He said he bought his own land and live there. It is far from Okeyo’s homestead. He confirmed that his fathers’ home is on the deceased’s estate. He said he was withdrawing the word immoral but it was wrong for Hellen to live on his fathers. property with her husband. He said his father set it aside for himself (Mondo). That she is married in Kadem where she should live, like the other sisters. He said he was not demeaning his sister but there must be some order. He said he was a willing Administrator in this estate and nobody forced him to take out these letters. There are properties he was not aware of. The court issued an order that anybody who knew the deceased’s property should file an Affidavit to that effect. He said he was aware that Hellen Odira included some property with searches. When objections were raised, it was ??????? and confirmation comes before distribution. It is not him but 3 of them were bound to bring all the properties on board. He admitted that he was bearing the greater responsibility as the Administrator. He said Plot 16961 – was his father’s Mondo. He said the deceased was not there to sell it and it is proper for the court to distribute it. Hellen entered the land after deceased’s death. He passed there when going home. There is a structure there constructed there. Some buildings are communal. Hellen lives there in structure. Hellen had not sold any property. She moved into the property. The proceedings he stated have gaps but are not fatal. It is in the list of the estate that its addressed. The law does not discriminate against daughters. He said he was not abusing his position to frustrate his sisters so that they don’t get anything. He said a family meeting appointed the people. He said he did not seek his sisters’ consent. In re-examination, the Administrator said that on 4/5/2013 there was a family meeting chaired by John Miller and he was appointed to represent House of Termina Okeyo in that meeting. Billy represents the House of Mary and Moses Okeyo represent the house of Christabel Okeyo. He said he was pushing the Administrators in terms of the houses as per his father’s wish. He said no property has been left out by intended distribution. The distribution included the girls, Eunice’s children were allocated to Christabel’s house and his brothers were allocated to them during his fathers’ life time. There is no property that has been built after his fathers’ death. Nobody has challenged what his father wanted. He said Hellen Odira moved to 1691 after his father died. He said he would not have had any problem if she went to settle at home. There is no problem with properties being brought into the estate. He said he was being cautious on how to proceed. **Mr.Ojala Advocate said that it was his prayer that the** parties can agree and still go home and try to agree on all the properties to be included. **Mr. Odero** Advocate agreed that they can give parties time to collect the estate. **Mr. Abisai Advocate also** agreed with sentiments of the counsel but added that in the event that they do not reach a settlement each to file inventory of the estate, limits homestead. If any party wishes to renounce it should be done at this stage. **Mr. Okeyo Advocate also confirmed that** it’s the best way to proceed and there was list by Hellen and together with the other counsel, they were to come back for further directions. The court made the following order pursuant to the Counsel’s sentiments:- **The Administrators to come up and file a list of all the deceased’s property.** **Failing which each individual protestor to file their lists for the court to harmonize.** **The Administrators to file / serve a full list of all the deceased’s beneficiaries including daughters of the deceased in default each individual protestor to file the full list of the beneficiaries.** **The daughters of the deceased to file affidavits indicating whether or not they denounce their rights to the deceased’s estate.** **The Administrators to set their list and affidavits within 14 days hereof and if the protestors wish to file any affidavits or list they may do so within 7 days of service.** **Mention on 7/12/2023 to confirm compliance and know way forward.** **During that period counsel to try and meet and agree to some settlement or way forward if possible.** **When the matter came up and parties had not reached a settlement, hearing proceeded with the Administrator/ Repondent’s witness** Lukio Otieno Nyachiro testified and said that he knew the late Andrea Okeyo who was his brother. He said that on 20.8.2020 he signed an affidavit in response to the protest and he wanted to adopt it as his evidence. He said he knew that mzee Andrea Okeyo distributed his land to his 3 wives and everyone is to be divided equally. The parcels are not ones where homestead is situated. The homestead where everyone stays, every son was given a plot of 50 x 100. He said the homestead is on one parcel. The 3 last sons were given land which they are farming on and their mother’s houses. The deceased remained with 3 plots known as “Mondo” namely store, his mother’s house and his house. There was also land in Kotwenya where one wife was given 10 acres and the other 2 wives got 8 acres each. The houses which got 8 acres each got additional 2 acres from Kodino parcel. There was another piece of land which they went to on one day and distributed 10 acres each to the 3 wives. He said he accompanied the deceased together with John Miller, Tom Okeyo deceased; Isaiah Gumbe – deceased; Julius Okombo and others. Onyango Okeyo was present., Andy Okeyo was also present. Out of those parcels there was also parcel of land in Nyamanga. When they got to Nyamanga there was a disagreement and it remained undistributed. The parcel of land in Kanyamkango was also left undistributed. It was used to take a loan and the deceased said he was using it. The other parcels in Riasiringi – Wuoth Ogik where Hellen Odira is living in. That the deceased said he was to use it for his upkeep and after his demise to be distributed by his dependents. The deceased had 3 shops which he was also using for his upkeep. He said in case he died every wife was to get one. Since one wife died it is the last born in the said house who took over the mother’s share in the shops. It was the wish of the deceased that upon the wife’s death the last born in that house would take over the shop. Lukio said that he was a surveyor since 1977. He said the deceased summoned all his sons for a meeting when they came home for his sister’s funeral. When some of the sons defied the summons, he ordered them to meet the following day. Not all the sons attended the meeting. Andy Odongo Okeyo and Stephen Omondi - 1st Protestor – They were put under mama Millers’ house to make 5 sons. This was to ensure that each son gets 2 acres. By the time that his brother died Hellen Odira was not living in Ragana property. He learnt later that Hellen was living there. The deceased bought the land in Ragana. He could not tell if Hellen was living in Ragana by the time Andrea died. After we came back from visiting the parcels of land, they brought report to their last born brother Gumbe who was the Chair and the deceased was happy to hear that his property was to be distributed to the houses instead of each child. The deceased gave instructions that each of the children should pay for survey so that each is given their titles Moses Ojwang Okeyo is the one who is using Kotwenya land. In cross examination by Mr. Ojala Advocate, the witness said that he is son of Nyachiro and Andrea was son of Odongo. He said Andrea Okeyo was his cousin, He said Okeyo was a teacher and also a commissioner. The deceased did not write a will. The land where the deceased was residing was to be shared by his sons. He said the deceased talked on how his properties should be divided. The deceased had parcels of land in Sayote, Kakrao, Ragana and Kanyamkago. The 1st land was 26 acres and one wife was to get 10 acres, 8 acres and 8 acres. The 26 acres is in Wasweta II/ 22. There was also another 4 acres in Wasweta II. In Kakrao the land was 30 acres. On the 3rd land there was a disagreement between Miller and Tom Okeyo the sons of the deceased herein. The distribution was done in 3 parcels of land. He said he didn’t go for survey on other parcels. He said the deceased appreciated the work they did in the 1st 3 parcels of land. Stephen and Andy were to benefit from Mama Millers house because other houses had so many boys. Mama Miller’s house had only 3 boys. Mama Steve died and was buried somewhere. Andy’s mother was not married to Okeyo. The deceased talked to me about sugarcane which was harvested and proceeds banked. He said he could not tell if the money was at the bank by the time he died. In cross examnation by Mr. Odero Advocate for the 2nd and 3rd Protestors the witness said that **t**he deceased apportioned each son 50 x 100 plots out of the homestead. He identified the sons to the deceased as:- 1. Tom 2. Mark 3. Odhiambo 4. Fred 5.Okoth 6. Dani 7. Miller 8. Oginga 9. Tom 10. Andy 11. Steve 12. Moses 13. Onyango 14. Ben 15. Bobby 16. Mzee He said out of the 16 sons, 3 were given farms. That was after apportionment of 50 x 100 measurements were done and all the sons fitted. He said that he had a report on the subdivision of the homestead. He said that parcels of land that he surveyed and to which he was testifying about had particulars. He said that the homestead is on No. Wasweta 1 / 1583. He said that mzee Andrea also gave his 3 brothers portions of land. They are:- 1. Nargiso Ochola Odongo 2. Philip Otieno Odongo 3. Agaro Peter Odongo Nargiso died long time ago before Mzee Okeyo died but his family are staying at the parcel of land they were given. He said he did not know the area of land given to Nargiso but it is defined and demarcated. He said Philip Otieno died after the death of Okeyo and the 2nd son to Philip lives on portion which was given by Mzee Okeyo. The land to Philip’s son is demarcated. He said that Peter Agaro died but the wife and 3 sons are alive. He said the portions given to Peter Agaro is demarcated but he did not know the area occupied. He said Hellen Odira Okeyo is known to him and she was in court. She is 3rd born daughter of Mzee Okeyo. Wakili Fred Okeyo is son of the deceased. He said he was able to distribute only 3 parcels but 10 properties are listed in the petition. He said the other 10 properties were visited or apportioned. That they did not visit all the 13 parcels listed. He said Kakrao plot is being used by Andy who has constructed there. He said he did not know when he constructed. He also stays at the fathers’ homestead where he got 50 x 100. Other sons have their houses in the homestead. Fred, Miller, Steve and Odongo, Tom and Dan and Onyango etc all have their houses in the homestead of the deceased. He said Moses also has his houses in the homestead. Not every parcel is having same acreage. An order from court will determine to distribute the rest of the assets which were not distributed. He said that Suna East Area ‘B” Kwa / 1141 was given to Nargiso Ochola officially – 4. 1 Ha. The deceased had several daughters but I don’t know their numbers. The 3 parcels of land were distributed by the deceased long before the law bequeathed land to daughters. Two daughters Millicent Apiyo Okeyo were to be given one acre at Nyamanga, Charity Achieng Okeyo was also to get one acre each at Nyamanga because they were not married. In cross examination by Mr. Abisai Advocate for the 4th Protestor, the witness said that Hellen Odira Okeyo is daughter to the deceased. She resembles the deceased’s mother. Hellen was not given any land. He said that according to the law sons and daughters are entitled to inherit from the father. The sons of Okeyo will decide whether to bequeath to daughters.He said that he did swear Affidavit on 20.8.2020 and he jointly signed it with Julius Okombo. He said the affidavit does not mention any of the assets as they are many. He said that his affidavit does not mention names of the deceased’s sons. That he did not also indicate the portions that each son was entitled to. The deceased did not write down his wishes but he said orally what his wishes were. The deceased did not accompany them to visit the parcels of land which were to be distributed. He could not remember the date when the deceased distributed his estate. He said Hellen was not at home when distribution was done. She was at her husband’s home. He said Okeyo’s sons are also married. He said that he became surveyor in 1977. He said he did not do mutation for survey of the deceased’s parcels of land. He said the mutations were at home and didn’t give them to his Advocate to bring to court because the court did not require them. **Mr. Okeyo Advocate** said that the next witness was going to say the same thing that 2nd witness had said. That all the daughters of the deceased had sworn an Affidavit prior to the order of the court to amend the summons and he would have called them to testify about non – inclusion. However, they had now been included and it will not be of any value to come and repeat what is on record. Mr. Okeyo said that they can be granrted time to file submissions before the court makes a determination. I would wish to have the matter out of my way. **Andy Odongo Okeyo one of the beneficiaries said:** I’m one of the sons of Andrea Okeyo Odongo and I don’t object to how the 3 parcels of land were distributed. The only mis-information is that Lukio has given is that I was given 2 acres of land at Nyabisawa / Wasweta II. 2 acres at Kakrao where I’m developing my home. I was also given 50 x 100 at the homestead. **Miller:** Mzee Lukio is misleading the court. **Mr. Ojala** Advocate said he would not be filing submissions. This was a protest. It is clear the process was not clear. Parties opted not to file submissions and the matter was reserved for writing judgment subject to typing of proceedings that were taken before Justice Wendoh. **ANALYSIS AND DETERMINATION** Having considered the summons for confirmation and the protests for the respective parties as well as viva voce evidence placed before the court, this court is to consider whether confirmation under Section 71 of the Law of Succession Act can be done in this matter. The issues that arise are:- 1. Whether the deceased died intestate or had made a valid testamentary disposition of his estate prior to his death. 2. Whether all the beneficiaries and dependants of the deceased have been identified and properly disclosed and whether all the assets and liabilities comprising the deceased's estate have been fully ascertained and disclosed. 3. Whether the alleged lifetime distribution by the deceased has been proved and, if so, what legal effect it has on the administration and distribution of the estate. 4. Whether the proposed mode of distribution is lawful, fair, and in accordance with the Law of Succession Act. 5. Whether the summons for confirmation of grant dated 24th February 2020 satisfies the requirements of section 71 of the Law of Succession Act and should be confirmed. On whether the deceased died intestate or had made a valid testamentary disposition of his estate, the petition proceeded on the basis that the deceased died intestate, the administrators relied extensively on evidence that the deceased orally distributed his estate before his death. The court must therefore determine whether the alleged oral directions amounted to a legally recognizable oral will or constituted completed gifts inter vivos, or whether the estate remains one of intestacy to be distributed in accordance with the Law of Succession Act. Throughout the proceedings virtually every witness, including the administrators themselves, admitted that daughters of the deceased had been omitted. The evidence is overwhelming. PW2 Hellen Odira stated that none of the daughters were included. PW3 Christabel confirmed the daughters were entitled to inherit from their fathers estate but had been excluded by the Administrators. PW4 John Miller admitted none of the daughters signed the consent and none were listed. DW1 Mark Okeyo expressly admitted that many daughters had been omitted and that it was an omission. That admission is significant because an administrator owes the court a duty of full disclosure. The omission cannot be cured merely by stating later that the daughters can be added. The court can only confirm a grant after being satisfied that **all beneficiaries have been identified.** The evidence also demonstrates that no renunciations had initially been obtained from the daughters. That omission alone would justify refusing confirmation. As a result of these complaints the Administrators filed an amended affidavit in support of the Petition for letters of Administration intestate sworn by the three Administrators on 4th December 2023 to include the deceased’ two widows, eleven sons and 12 daughters. The Administrators also listed 13 properties which value was estimated at Kshs. 90,000,000/=. The second major issue concerns the assets. The protestors consistently asserted that numerous assets had been omitted including Ragana property (Wasweta I/16961), Plot 37A, commercial plots, rental properties, bank accounts, shares and other parcels. Again, the administrators substantially conceded to this point. Mark admitted that there are properties he was not aware of. He further admitted the succession cause was incomplete and that the omitted properties could be added. He also confirmed that the Ragana property belonged to the estate and that the omitted beneficiaries could also be added. The court itself eventually directed disclosure of all bank accounts; disclosure of KCB accounts; filing of complete inventories and filing of complete list of beneficiaries. Those directions demonstrate that even this court hearing the matter was unconvinced that the estate had been fully identified. Confirmation cannot proceed before the estate itself is known. The Administrators subsequently filed an amended affidavit in support of the Petition and listed the following properties but they are still not including what other beneficiaries have referred to in their affidavits as follows:- 1. Suna East/ Wasweta I/10961 which is in the name of Nyakebati Johnes Chacha with subdivision No. 11032 measuring 7.47 HA 2. Kanyamkago/KawereII/958 which had a caution lodged in favour of Thabiti Finance Co. Ltd with subdivision N0.96 measuring 16.1HA 3. Suna East/ WaswetaI/ 11548 with subdivision No 6009 and measuring 0.13 HA 4. Suna West/Wasweta II/ 409 which asat 23rd May 2018 had a caution in favour of Odongo Mark ……measuring 23.8 HA 5. Suna West/ Wasweta II/336 in the name of Andrea Okeyo measuring 8.4 HA 6. Suna East/ Kakrao/2402 against which Mark Odongo Okeyo had lodged a caution with subdivision No. 322 measuring 36.9 HA. 7. Suna East/Area B Kwa/1141 against which Mark Odongo lodged caution with subdivision No. 592 measuring 11.3HA 8. Suna East/ WaswetaI/1583 against which Mark Odongo Okeyo ha lodged a caution with subdivision No. 390 measuring 14.3 HA 9. Suna East/ Wasweta I/ 6709 which also had caution in favour of Odongo Mark as at the time Certificate of search was being issued with subdivision No 2964 measuring 0.13 HA 10. Suna East/ Wasweta I/ 688 Measuring 2.4 HA 11. Suna East/ Wasweta I/ 1582 with subdivision No. 390 measuring 5.75 HA 12. Suna East/ Wasweta II/ 1130 with subdivision No 2964 measuring 4.8 HA 13. Suna East/ Wasweta II/ 1691 with subdivision No. 11032 measuring 3.20 HA It is therefore apparent that the Administrators failed to disclose the full inventory of the deceased intestate estate as the protestors contend that several parcels of land, rental properties, bank accounts, shares and other assets were omitted from the petition. The 1st Protestor went ahead to give particulars of some of the properties as Plot No. 37A Suna/ Marindi, Seme 1583, Wasweta, Suna East 40B etc. It was also disclosed in the evidence of the protestors that the sons to the deceased had already been bequeathed with 50x100 plots each within the homestead of the deceased and they had constructed their residential houses therein. There was, also allegations that the Administrators were accessing the deceased bank account held at KCB Migori Branch for purposes of administration of the estate and discharging liabilities but there are no particulars of such liabilities disclosed by the Administrators. The administrators in their proposed mode of distribution allocated one-third of the estate to each of the three houses and lumped the 1st Protestor with his step siblings and step mother Christabel Auma Okeyo the 2nd Protestor herein. Proposed mode of distribution is uncertain. It does not identify which specific parcels each beneficiary receives. John Miller correctly complained that one cannot know what "one-third of the estate" means. Mark himself admitted during cross-examination that he had to "do mathematics" to determine what one-third meant. That concession weakens the administrators' own proposal. Confirmation requires certainty. The court cannot transmit unidentified portions of unidentified property to unidentified beneficiaries. The Administrators having failed to give the formula used to arrive at this mode of distribution and did not explain what was comprised in the one third of the estate the proposal is incapable of implementation by transmission. Rule 40 requires consent by beneficiaries or determination of objections. The evidence shows that Steve, John Miller, Christabel, Hellen and all the daughters of the deceased never signed the consent to Petition for Letters of Administration and for confirmation. Therefore, the purported consent cannot bind the estate. In consideration that the Administrators left out the daughters of the deceased from the entire cause and also failed identify and consolidate the entire list of properties forming the intestate estate, this court finds that there was no valid consent capable of authorizing the Administrators herein to distribute the s=estate in the manner proposed as it does not represent an agreement by the beneficiaries. The administrators attempted to justify their proposal by saying the deceased had distributed his estate during his lifetime. However, the evidence falls short of proving a completed inter vivos gift. Mark himself pleaded that the deceased died intestate. He confirmed this during cross examination. He also admitted he never petitioned as a testate estate. Therefore, reliance on alleged oral wishes was not proved. Christabel categorically denied that any distribution took place. She even said anyone claiming otherwise was lying. John Miller accepted meetings occurred but stated distribution was never finalized. Steve insisted he was never allocated through Christabel's house. Hellen denied that any allocation was done by the deceased during his life time. The administrators therefore failed to establish one consistent version as to whether the deceased during his life time bequeathed the beneficiaries any part of his estate at least the parties are not in agreement. Although Lukio testified that measurements were undertaken, he admitted that there were no mutations, no transfers and that according to him only three parcels visited at the instructions of the deceased with a view to bequeathing his children. Lukio also admitted that 10 parcels were never surveyed; That Nyamanga remained disputed and Kanyamkago remained undistributed. That evidence from Lukio suggests an intended future distribution rather than completed gifts. None of the parcels were transferred before death and no registered of alleged gifts inter vivos were proved. Consequently, the land remained free property forming part of the estate. The administrators' suggestion that married daughters should inherit through houses rather than individually would almost certainly not survive judicial scrutiny. Several witnesses themselves acknowledged daughters should inherit. Mark admitted the law does not discriminate. John Miller and Christabel agreed that daughters are entitled to inherit from their father. Lukio also eventually admitted sons and daughters are entitled under the law to inherit from their father’s estate. This court would therefore not allow distribution that excludes and or discriminates on the children of the deceased based on their gender. Steve's complaint regarding being grouped under Christabel's house is more nuanced. He demonstrated that he was the only child of his mother, that his mother died early and he merely lived temporarily with Christabel. He said he never accepted becoming part of Christabel's household. There is conflicting evidence that the deceased directed he be counted within another house. However, that alleged direction was never documented and is disputed. This court will ultimately determine that Steve inherits directly as a son rather than through another household. There was also evidence of Hellen’s occupation of the Ragana property. The said evidence strongly establishes the property belongs to the estate and that Hellen occupies approximately two acres. The administrators attempted to evict her claiming she was intermeddling with estate property and that she trespassed therein after the death of the deceased without the authority of the Administrators. The Administrators had nevertheless omitted the property from the petition. That omission substantially weakens the administrators' credibility. The said property should therefore be included in the list of estate property for purposes of eventual distribution by the court. In consideration of the consistent evidence adduced by the protestors on the issues of omitted daughters, omitted properties and lack of consent, which ommissions were admitted by the Administrators and their witnesses, this court makes a finding that the deceased died intestate; The deceased died intestate. the petition failed to disclose all beneficiaries, the petition failed to disclose all estate assets; the proposed mode of distribution is uncertain and incapable of implementation as there was no valid consent of all beneficiaries. The alleged lifetime distribution was not proved as a completed gift inter vivos and cannot, without more, determine succession. All daughters are beneficiaries entitled to participate unless they expressly renounce their interests. All estate properties, bank accounts, rental income, and liabilities must first be disclosed fully ascertained. The final orders of this court are that:- 1. **The protest is allowed to the extent that the summons for confirmation dated 24 February 2020 is declined.** 2. The administrators shall remain in office since there is no sufficient evidence of misconduct warranting revocation. 3. The Administrators shall file a complete inventory of all assets and liabilities of the estate. 4. A complete list of all beneficiaries, including every daughter and any dependants, shall be filed. 5. The Manager KCB 6. Any omitted parcels and bank accounts shall be brought into the estate. 7. Beneficiaries wishing to renounce their entitlement shall file appropriate affidavits of renunciation. 8. The administrators shall thereafter file an amended summons for confirmation proposing a lawful mode of distribution. 9. The directions herein to be complied with within 90 days 10. In default of complying with the directions herein the court will be at liberty to revoke the grant made to the Administrators and appoint other Administrators to complete administration of the estate. 11. Mention 29th September 2026 to confirm compliance. **DATED, SIGNED AND DELIVERED AT MIGORI, THIS 9TH DAY OF JUNE, 2026.** **ANNE ONG’INJO** **JUDGE** **In the Presence of**