https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7381

In re Estate of Barasa (Deceased) (Succession Cause 35 of 2005) [2026] KEHC 7381 (KLR) (21 May 2026) (Ruling) Neutral citation: [2026] KEHC 7381 (KLR) Republic of Kenya In the High Court at Bungoma Succession Cause 35 of 2005 REA Ougo, J May 21, 2026 IN THE MATTER OF THE ESTATE OF NICHOLAS ANCO BARASA - DECEASED In the matter of Richard Wafula Barasa 1st Petitioner John Kamau 2nd Petitioner and Evans Wafula Masiaga Objector Ruling 1.Nicholas Anco Barasa (the deceased), passed away on 20/2/2000. He was a polygamous man, with three wives, Dymphina Nabangala, Tecla Naliaka Barasa and Nelly Barasa. At the time of applying for succession, the following were disclosed as the deceased’s beneficiaries: -1st Housei.Dymphina Nabangala (Widow)ii.Dennis Kuloba – Soniii.Concepta Nafula – Daughteriv.Hellen Akumu – Daughterv.Scolastica Nasimiyu – Daughtervi.Richard Wafula – Sonvii.Chrispinus Wanyonyi – Sonviii.Jeremimo Sudi - Sonix.Evans Yakubu - Son2nd Housei.Tecla Naliaka Barasa (Widow)ii.Gelesancia Nafula – Daughteriii.Edward Simiyu – Soniv.Jackline Nanginda – Daughterv.Martin Wekesa – Sonvi.Constantine Sifuna – Son3rd Housei.Nelly Nafula Barasa – Widowii.Eunice Aromo – Daughteriii.Emmanuel Wakaehala – Soniv.Kevin Wanjala – Sonv.Stephen Wafula - Son 2.The deceased’s estate consisted wholly of Land Parcel No. SE. Bukusu/S. Kanduyi/5175 measuring 0.3 Ha. 3.On 11/10/2005, Letters of Administration Intestate were issued to Richard Wafula Barasa. By an application dated 20/4/2006, the Petitioner sought confirmation of the Grant. He proposed the distribution of the deceased’s estate, with Land Parcel No. South Nyakach/Diang’a East/1489 to be divided in accordance with the terms set out in the Amended Mode of Distribution filed on 20/4/2022. 4.The application was opposed by an affidavit of protest sworn on 6/11/2023 by Evans Wafula Masiga. The objector contended that he had been left out of the distribution of the deceased’s estate. That his deceased mother had purchased a portion measuring 0.04 Ha from one Koroneli Nawate, the father of the deceased herein, Nicholas Anco Barasa, an issue that was raised at the Lufu ceremonies of both Koroneli and the deceased herein. That he and his parents had occupied the said portion and developed it, and as such he was due the said portion from the deceased’s estate. The objector sought to rely on an agreement dated 21/11/1968. 5.In response, the petitioner relied on a replying affidavit he swore on 9/11/2023. The petitioner admitted that the objector had been omitted from the mode of distribution of the deceased’s estate because he was not a beneficiary. He further admitted that the objector’s claim as a buyer of a portion of the estate was unfounded, as the only bona fide purchaser was Lucy Wangari Kamau, who had been duly provided for. 6.That the suit property was not ancestral land as alleged by the objector, but property purchased by the deceased. That the suit property was a subdivision of parcel no. East Bukusu/South Kanduyi/458, which was still owned by the deceased, but that the deceased had sold part of it to Bungoma Teachers Sacco in 1990, and that he was not familiar with plot 272 stated in the agreement adduced by the objector. 7.Further, the agreements adduced by the objector, though showing the same witnesses, bore different signatures, a tell-tale sign that the said agreements were fabrications meant to serve the objector’s interest. The petitioner objected to assertions that the objector attended the Lufu ceremony of his grandfather or father. 8.The matter was disposed of by way of viva voce evidence. The Protestor, Evans Wafula Masiga, testified as PW1. He adopted his affidavit of protest as his evidence in chief and the documents attached thereto. He further testified that he stayed on the suit property and that there was also a church there, which he had leased the property to. That the petitioner did not stay on the portion he claimed but on a larger portion. 9.In cross-examination, he testified that he was born on the suit property. He admitted that the agreements he had adduced were in reference to Plot no. 272 and not the suit property. He further admitted that he did not know the year the deceased or his father passed away, and that he had no evidence to show that he had stayed on the portion of land as claimed. 10.The testimony of PW2, Linus Wasike Masinde, was expunged from the record after it emerged that he was not a licensed surveyor, as alleged by the objector. 11.The Petitioner gave evidence as DW1. He reiterated the contents of his reply affidavit, sworn on 9/11/2023, as his evidence in chief, and further stated that he wanted the amended mode of distribution dated 19/4/2022 to be adopted, as the matter had lagged in court for a long time. Determination 12.I have carefully considered the evidence and submissions. The Court is being called upon to determine how the deceased's estate should be distributed. The deceased’s beneficiaries are not disputed; the objector herein asserts his claim to a share of the deceased’s estate on the ground that his late mother purchased a portion of the suit property from the deceased’s father and was thus a bona fide purchaser for value, and secondly that after the suit property was registered in the deceased’s name, the deceased held the same in trust for him, the objector. 13.It is trite law that he who alleges must prove. In law, the burden of proof rests with the party who asserts the existence of a fact or set of facts. Section 107 of the Evidence Act CAP 80 Laws of Kenya provides:“107(1) Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.(2)When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person.” 14.In Evans Nyakwana v Cleophas Bwana Ongaro [2015] eKLR, the court held that: -“As a general preposition the legal burden of proof lies upon the party who invokes the aid of law and substantially asserts the affirmative of the issue. That is the purport of Section 107(1) of the Evidence Act Chapter 80, Laws of Kenya. Furthermore, the evidential burden is cast upon any party, the burden of proving any particular fact which he desires the court to believe in its existence. That is captured in Section 109 and 112 of the law of proof of that fact shall lie on any particular person ...” [Own emphasis] 15.The Objector claims that his mother bought a portion of the suit property from the deceased’s father. In support of this claim, the Objector relied on agreements that contradicted his assertions. The agreements adduced were in relation to Plot no. 272, not the suit property. 16.The Objector further claimed that the interest in the portion of the suit property he claimed was expressed in the Lufu ceremonies of the deceased and, before that, in those of the deceased’s father. This was strongly disputed by the Petitioner, who testified that the Objector did not take part in any of the alleged Lufu ceremonies. A Lufu ceremony is a meeting of the deceased’s close relatives held a few days after the deceased’s burial. When cross-examined, the Objector stated that he did not remember when either the deceased or his father died. It is thus evident that he was not in a position to state what happened at those ceremonies. 17.The evidence presented by the Objector in support of his claim fails to substantiate it. It is my finding that the Objector's protest is without merit, and I proceed to dismiss it. 18.With the above finding and noting that the mode of distribution presented by the Petitioner is unopposed, I adopt the amended mode of distribution of the deceased’s estate dated 19/4/2022. A Certificate of Confirmation of Grant is to issue reflecting the same. Costs to the Petitioner. DATED, SIGNED AND DELIVERED VIRTUALLY THIS 21ST DAY OF MAY 2026.R.E. OUGOJUDGEIn the presence of:Mr. Juma Waswa for the PetitionerObjector – AbsentWilkister C/A