https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/583

**REPUBLIC OF KENYA** **IN THE CHIEF MAGISTRATES COURT AT BUNGOMA** **SUCCESSION CAUSE NO. E399 OF 2024** **IN THE MATTER OF THE ESTATE OF CLARA NASIMIYU alias CLARE NASIMIYU WAFULA………………………………………………………………DECEASED** **AND** **PROTUS SITATI WAFULA……………………………………1ST PETITIONER/RESPONDENT** **VERSUS** **MAURICE NYONGESA WAFULA………………………………….2ND PETITIONER/PROTESTER** **RULING** 1. This court delivered a ruling on 07th May 2026 requiring the Bungoma County Land Surveyor to appear before this court for cross-examination on the contents of his land survey report dated 23rd March 2026. The said surveyor was also required to avail the original searches of land parcel numbers E. Bukusu/N.Kanduyi/10353, 10358, 10352, 10681 and 10686 2. The foregoing was in furtherance of the terms of the judgment delivered by this court in this cause on 17th February 2026 requiring the Land Registrar Bungoma, and the Bungoma County Land Surveyor to shed light on the identity and/or location of the deceased’s two (2) acres of land, which were hived from land parcel number E.Bukusu/N.Kanduyi/318. 3. It is against this backdrop that Mr. Brian Wafula Kubwa from the Bungoma Land County Survey Office attended court on 02nd July 2026 for cross-examination by this court and the parties' counsel. **EVIDENCE** 1. Mr. Kubwa testified that he received a court order dated 19th February 2026 issued by this court requiring him to establish the existence of the two acres of land occupied by the deceased. He added that he conducted a land survey which revealed that the deceased occupied land parcel numbers E. Bukusu/N. Kanduyi/10353 measuring 0.15 hectares, E.Bukusu/N.Kanduyi/10358 measuring 0.53 hectares and E.Bukusu/N.Kanduyi/10686 measuring 0.36 hectares. He produced the survey report dated 23rd June 2026 as an exhibit. 2. He stated in cross-examination that the deceased’s land available for distribution was land measuring 1.04 hectares. He added that summons to attend the survey were served upon all the parties herein through their area chief, but the 2nd Petitioner/Protester failed to attend the said survey. **ANALYSIS AND DETERMINATION** 1. This court has given due regard to the evidence on record as well as the written submissions filed by the parties herein. 2. The only issue for determination is whether the evidence adduced by Mr. Kubwa confirmed the existence and the acreage of the deceased’s parcels of land for distribution among the deceased’s dependents. 3. It is noteworthy that the evidence adduced by Mr. Kubwa before this court is expert evidence. Mr. Kubwa’s evidence on the existence and acreage of the deceased’s land remained unshaken even after cross-examination by the parties herein. 4. The law in this jurisdiction is that an expert report must be given due respect, and that such a report can only be impeached through another expert’s report or if there are valid reasons for a court to disregard it. To this end, this court draws inspiration from **Stephen Kinini Wang'ondu v The Ark Limited [2016] eKLR** where Mativo J (as he then was) rendered himself thus on expert evidence: *“Expert testimony, like all other evidence, must be given only appropriate weight. It must be as influential in the overall decision-making process as it deserves; no more, no less. To my mind, the weight to be given to expert evidence will derive from how that evidence is assessed in the context of all other evidence. Expert evidence is most obviously needed when the evaluation of the issues requires technical or scientific knowledge only an expert in the field is likely to possess. However, there is nothing to prevent reports for court use being commissioned on any factual matter, technical or otherwise, providing; it is deemed likely to be outside the knowledge and experience of those trying the case, and the court agrees to the evidence being called.* *While there are numerous authorities asserting that expert evidence can only be challenged by another expert, little has been said regarding the criteria a court should use to weigh the probative value of expert evidence. This is because, while expert evidence is important evidence, it is nevertheless merely part of the evidence which a court has to take into account. Four consequences flow from this.* *Firstly, expert evidence does not “trump all other evidence”. It is axiomatic that judges are entitled to disagree with an expert witness. Expert evidence should be tested against known facts, as it is the primary factual evidence which is of the greatest importance. It is therefore necessary to ensure that expert evidence is not elevated into a fixed framework or formula, against which actions are then to be rigidly judged with a mathematical precision.* *Secondly, a judge must not consider expert evidence in a vacuum. It should not therefore be “artificially separated” from the rest of the evidence. To do so is a structural failing. A court’s findings will often derive from an interaction of its views on the factual and the expert evidence taken together. The more persuasive elements of the factual evidence will assist the court in forming its views on the expert testimony and vice versa. For example, expert evidence can provide a framework for the consideration of other evidence.* *Thirdly, where there is conflicting expert opinion, a judge should test it against the background of all the other evidence in the case which they accept in order to decide which expert evidence is to be preferred.* *Fourthly, a judge should consider all the evidence in the case, including that of the experts, before making any findings of fact, even provisional ones.* *A further criterion for assessing an expert’s evidence focuses on the quality of the expert’s reasoning. A court should examine each expert’s testimony in terms of its rationality and internal consistency in relation to all the evidence presented. In Routestone Ltd. v. Minories Finance Ltd. and AnotherJacob J. observed that what really mattered in most cases was the reasons given for an expert’s opinion, noting that a well-constructed expert report containing opinion evidence sets out both the opinion and the reasons for it. The judge pithily commented “[i]f the reasons stand up the opinion does, if not, not.” Where there is a conflict between experts on a fundamental point, it is the court’s task to justify its preference for one over the other by an analysis of the underlying material and of their reasoning.* *It is my view its correct to state that a court may find that an expert’s opinion is based on illogical or even irrational reasoning and reject it. A judge may give little weight to an expert’s testimony where he finds the expert’s reasoning speculativeor manifestly illogical. Where a court finds that the evidence of an expert witness is so internally contradictory as to be unreliable, the court may reject that evidence and make its decision on the remainder of the evidence. The expert’s process of reasoning must therefore be clearly identified so as to enable a court to choose which of competing hypotheses is the more probable.”* 1. Further, in **Dick Omondi Ndiewo TIA Ditech Engineering Service v Cell Care Electronics [2015] eKLR**, the court stated thus on how to challenge an expert report:- *“The evidence of an expert can only be challenged by evidence of another expert. In the Miscellaneous Application No. 427 of 2010 Ali Mohammed Sunkar Vs Diamond Trust Bank (K) Limited, the court observed and I quote: -“The Defendant's attempts to resist the Plaintiffs Application by challenging the handwriting experts report. The report can only be challenged by counter expert report, Elizabeth Hinga who is the head of Debt Recovery Unit cannot simply discredit the handwriting experts report without tabling another handwriting report. The Plaintiff has proved that he did not author the bank transfers by his own personal averment and also supported by expert evidence which the Defendant has failed to rebut. There is no issue to go for trial.”* 1. This court has given due consideration to the legal principles set out in the authorities above on how a court should handle expert evidence. 2. The 2nd Petitioner/Protester sought to impeach Mr. Kubwa’s expert evidence above through written submissions. Written submissions are not evidence, as was eloquently explained by the Court of Appeal in **Moi v Muriithi & another (Civil Appeal 240 of 2011) [2014] KECA 642 (KLR)** as follows: *“Submissions cannot take the place of evidence. The 1st respondent had failed to prove his claim by evidence. What appeared in submissions could not come to his aid. Such a course only militates against the law and we are unable to countenance it. Submissions are generally parties’ “marketing language”, each side endeavouring to convince the court that its case is the better one. Submissions, we reiterate, do not constitute evidence at all…”* 1. Therefore, it follows that the 2nd Petitioner/Protester could not purport to impeach the expert evidence adduced by Mr. Kubwa before this court through written submissions. 2. As already stated in this ruling, Mr. Kubwa’s expert evidence on record was not impeached even after cross-examination. There are also no reasons for this court to disbelieve the expert evidence on record. Lastly, there is no contradictory expert evidence on record to dislodge the expert evidence adduced by Mr. Kubwa on the existence and acreage of the deceased’s land. 3. The foregoing inclines this court to find and hold that the expert evidence adduced by Mr. Kubwa proved the existence of the deceased’s parcels of land and their respective acreage on a balance of probabilities. **DETERMINATION** 1. Given the reasons above, the Grant of Letters of Administration intestate herein issued to the Petitioners on 27th January 2025 is confirmed in the following terms: 2. *The deceased’s parcels of land numbers E. Bukusu/N. Kanduyi/10353, E.Bukusu/N.Kanduyi/10358 and E.Bukusu/N.Kanduyi/10686 cumulatively measuring 1.04 hectares be shared equally among Maurice Nyongesa Wafula, Protas Sitati Wafula, Margaret Nanjala Makhanu and Electina Nekesa Wafula unless either of them renounces their share of the deceased’s parcels of land or unless they agree on a different mode of distribution of the deceased’s parcels of land.* 3. This being a family dispute, each party to bear their costs. **Ruling delivered and signed in open court at Bungoma this 06th day of August 2026** **T.O. OMONO** **SENIOR RESIDENT MAGISTRATE** **In the presence of:** Ms. Mwashi for the 1st Petitioner 1st Petitioner C/A: Mr. Rioba