https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/141

In re Estate of Lusweti (Deceased) (Probate & Administration 340 of 2017) [2026] KEMC 141 (KLR) (19 June 2026) (Judgment) Neutral citation: [2026] KEMC 141 (KLR) Republic of Kenya In the Bungoma Law Courts Probate & Administration 340 of 2017 RN Maloba, SPM June 19, 2026 IN THE MATTER OF THE STATE OF KIBERENGE In the matter of John Mwangale Kiberenge 1st Petitioner Wafula Kiberenge Mutoro 2nd Petitioner Mary Khaindi Kiberenge 3rd Petitioner John Sikuku Mutoro 4th Petitioner Judgment 1.This cause is being administered by four Petitioners namely John Mwangale Kiberenge, Wafula Kiberenge Mutoro, Mary Khaindi Kiberenge and John Sikuku Mutoro as 1st -4th Petitioners respectively. The court issued a grant in their joint names way back on 27/8/2020. 2.Subsequently, the 4th Petitioner filed Summons for Confirmation of Grant dated 5/2/2024 praying that the said Grant be confirmed and that the estate of the deceased comprised in Land Parcel No. Kimilili/Kimilili/5314 measuring 3.75 acres be distributed to the rightful beneficiaries who were disclosed in paragraph 5 of his affidavit in support of the Summons herein. 3.The same were set out as follows: 1.Catherine Naliaka - 0.9 acres 2.Roseline Nekesa - 0.9 acres 3.Benedetta Muyayi - 0.9 acres 4.John Sikuku Mutoro - 0.75 acres 5John Mwangale Kiberenge - 6.Wafula Kiberenge Mutoro - 0.3 acres jointly 7.Mary Khaindi Mutoro - 8.John Sikuku Mutoro - 4.He filed a consent signed by six beneficiaries who supported the above proposition. 5.Subsequently, the 1st Petitioner filed an affidavit of protest sworn on 19/4/2024 opposing the above mode of distribution. 6.He stated concerning parcel No. Kimilili/Kimilili/5314 measuring 1.5 Ha, that beneficiaries had initially agreed that the same be distributed as follows:1.Catherine Naliaka - 0.5 Ha2.Roselyne Nekesa Kiberenge - 0.5 Ha3.Benedetta Buyayi Kiberenge - 0.5 HaThis was the main parcel in dispute. Other properties proposed to be share out were as follows;4.Kimilili/Kimilili/ 5316 measuring 1.24 Ha – John Sikuku Mutoro.5.Kimilili/Kimilili/5326 measuring 1.20 Ha - Emmanuel Nyongesa6.Kimilili/Kimilili/5327 measuring 0.24 Ha- George Willis Sirengo.7.Kiminini/Matunda Block 10/ plot 203i.Wafula Kiberenge Mutoro-1.0 Haii.Wilson Wanyonyi Mutoro-1.0 Ha 7.He attached a consent dated 24/11/2020. Those who signed that consent included all the Petitioners except the 4th. It had the majority signatories who concurred or conceded to the distribution he proposed over Parcel No. Kimilili/Kimilili/5314 compared with the one relied upon by the 4th Petitioner dated 5/2/2024. 8.The 4th petitioner filed a replying affidavit sworn on 21/6/2024 and explained that the mode of distribution he proposed was the one which had been agreed upon with the help of the clan elders. He also explained that parcel No. 5314 has encroached into parcel No. 5316 amongst others. 9.Both parties called evidence in their respective cases. On the 1st Petitioner’s side, those who testified were himself, Wafula Kiberenge Mutoro and Mary Namwacha as PW1-PW3 respectively. On the defence side, only the 4th Petitioner testified as DW1. 10.Parties filed submissions upon close of trial. 11.The 1st Petitioner’s submissions were that it is only fair that the 4th Petitioner be given parcel No. 5314 while parcel No. 5314 should be allocated to the three daughters mentioned herein. They cited the case of Anne Nyambura Ndungu -v- Beatrice Wangari Ndungu & 2 Others [2021] eKLR and Re Estate of Sawe Maina (Succession Cause No. 350 of 2015[ 2023] KEHC 26928 KLR which speak to the issue of fair distribution of estate of a deceased person. In the former, it was observed that where beneficiaries are unable to agree on how the estate should be distribute, the court is to decide the matter based on the law and the evidence before it. 12.From the latter case, the court is reminded to strike a balance between competing individual interests within the context of Article 50 of the Constitution which lays out fundamental tenets of fairness and equality before the law. 13.On his part, the 4th Petitioner submitted that the deceased resolved the issue of discrepancy in plot No. 5316 when he was still alive by hiving off 0.75 acres (0,3 Ha) from parcel No. 5314 and giving it to the owner of the former. He relied on the doctrine of legitimate expectation arising from the said act and place weight on the case of National Director of Public Prosecutions- v- Philips whose citation he did not give. Other that, he failed to explain how the said doctrine is related to his side of the case. Issues for Determination 14.These are; 1.Whether the objection to the 4th Petitioner’s personal claim to parcel No. Kimilili/Kimilili/ 5314 is well founded and justified. 2.Whether the objection should be sustained. 3.Who bears costs of this objection? 15.Other properties were mentioned in the protest besides Parcel No. Kimilili/Kimilili/5314. However, the same were not in dispute and so, there would be no need to specifically mention the same unless necessary for purposes of fair allocation as against the disputed portion. 16.It is a requirement under Section 28 and 48 of the Law of Succession Act that previous gifts, advancements or benefits given by the deceased during his lifetime be factored in when determining apportionment of his free estate. 17.It was common ground that the sons to the deceased were provided for and in fact settled on the other parcels prior to his demise. To my understanding, these were gifts inter vivos more so given that, he duly passed on titles to the beneficiaries over the same during his lifetime. But some of them remained in his own name including the disputed portion, parcel No. 5314. 18.During litigation of this protest, the 4th Petitioner alleged to be partly settled on Parcel No. Kimilili/Kimilili/5314 and Kimilili/Kimilili/5316. 19.In order to ascertain that claim, the court did issue orders dated 26/2/2024 ordering the County Surveyor to visit the two parcels and determine whether the 4th Petitioner resides on parcel No. Kimilili/Kimilili/5314 or 5316 and also to determine if the boundary to the former is intact or not amongst others. 20.In the report filed, it was established that the 4th Petitioner’s homestead lies within the boundaries of Parcel No. Kimilili/Kimilili/5316 and further that the boundaries of Kimilili/Kimilili/5314 are not intact since the 4th Petitioner has encroached on a section measuring 0.42 Ha (1 acre). 21.But the 4th Petitioner maintained his stance in the replying affidavit sworn on 21/6/2024 and quite strongly that, in the proposed mode of distribution filed by the 1st Petitioner in his protest, he proposes to allocate more land to himself and the brothers who are friendly contrary to the wishes of the deceased. He further contended that the 0.75 acres he proposed to allocate himself in his schedule of distribution was land that was hived off Parcel No. Kimilili/kimilili/5316 without his knowledge. 22.However, he added that as per the Surveyor’s report, Parcel No. Kimilili/Kimilili/5316 is nonexistent on the ground. 23.In the cause of trial, parties expressed willingness to reserve a section of the disputed land parcel No. Kimilili/Kimilili/5314 as a family graveyard. The 4th Petitioner proposed its acreage as 0.3 acres. Given the existing consensus on the matter, I would proceed to apportion or designate 0.3 acres = 0.12 Ha out of the said parcel as family graveyard. The said portion shall be registered jointly in the names of the four (4) Petitioners in trust for the family as a whole. 24.Although during trial, the 4th Petitioner maintained that part of his homestead is situated on parcel No. Kimilili/Kimilili/5314, it was established by the surveyor to the contrary. The surveyor’s findings per report dated 20/3/2024 was that the said home is within the boundaries of parcel No. Kimilili/Kimilili/5316. That particular fact effectively goes on to discount and rebut the 4th Petitioner’s allegation that Parcel No. Kimilili/Kimilili/5316 does not exist on the ground. It was stated by the surveyor that Parcel No. Kimilili/Kimilili 5316 is 1.2 Ha in size. 25.The evidence given by the 1st Petitioner was that, there was no justification in the 4th Petitioner’s claim to a 0.75 acre share of Kimilili/Kimlili/5314. He and the other petitioners on his side want the said parcel to go to the three daughters of the deceased save for the graveyard measuring 0.3 acres which they want registered in the joint names of all the administrators for the benefit of the entire family. 26.According to them, that land was reserved by the deceased for his three wives and it is to be inherited by his three unmarried daughters. 27.Considering that the three daughters of the deceased namely Catherine Naliaka, Roselyne Nekesa Kiberenge and Benedetta Buyayi have to be provided for from Parcel No. Kimilili/Kimilili/5314, I do find that the 4th Petitioner’s claim on the same is untenable. This is because he has the entire parcel No. Kimilili/Kimilili/5316 measuring 1.20 Ha to himself and that is a fair share previously allocated to him by the deceased. Nobody else has laid claim to the same. The surveyor found that he is in occupation of the same but that he has partly encroached on parcel No. 5314 by 0.42 Ha (1 acre). It is apparent that, his encroachment on the same is a means of trying to assert a claim over it through active or constructive possession but allowing him to keep it would be unconscionable and detrimental to the rights and interests of the deceased’s three daughters. He cannot benefit from the entire of parcel No. 5314 and also get a lion’s share from parcel No. 5314 in his individual capacity or at all. The daughters have no other land allocated to them. That leaves them with only parcel No. 5314 to share out amongst themselves let alone ceding a section of it to be reserved for the family graveyard. 28.Even though the petitioner’s position was supported by the clan as per minutes of the meeting they held with the deceased family on 3/2/2024, it is my considered view that endorsing the same would be tantamount to disenfranchising the deceased’s three daughters of their fair and equitable share out of his estate. 29.The court has also considered the contents of the survey report filed by 4th Petitioner on alleged encroachment of parcel No. 5316 by Parcel No. 5314. On the same, the court finds that it is unable to place much weight on the same or at all because it was done at the behest of the 4th Petitioner unilaterally. This was after the County surveyor had already visited with notice and participation of both parties and made his own report as was directed by the court. 30.Secondly, the same has some material contradictions and in particular concerning where the homestead of the 4th Petitioner lies. 31.Whereas the surveyor in the report talks of alleged encroachment by parcel No. 5314 into 5316, he still goes on to state that the 4th Petitioner’s homestead lies on the former. The court’s view is that report he filed done by Geocity Surveys Ltd lacked objectivity hence, it was not reliable or credible. 32.In the circumstances, this court sustains the objection raised by the 1st Petitioner vide his affidavit of protest sworn on 19/4/2024 in part as per the analysis and determination made above. Costs 33.It is trite that costs are discretionary but ordinarily follow the event – see Mwaura & 5 others v Mbuyu Marijani Villas Limited (Enviromental and Land Originating Summons E015 of 2025) [2026] KEELC 2750 (KLR) (24 April 2026) (Ruling). 34.In this case, parties are all siblings who have been in court since the year 2017. In my considered, neither party deserves to be burdened by costs in favour of the other. 35.In the case of Karanja & another v Gichini & another (Succession Appeal E001 of 2025) [2026] KEHC 5375 (KLR) (23 April 2026) (Judgment), a scenario like this obtained and the court ordered each party to bear its own costs notwithstanding that the appellants had been successful in the appeal. 36.Hence, I would order each to bear his own costs. 37.Therefore, the court whilst allowing the Grant to be confirmed vide Summons dated 5/2/2024, I proceed to distribute deceased’s Land Parcel No. Kimilili/Kimilili/5314 measuring 1.40 Hactares as hereunder:a.i)John Mwangale Kiberenge,ii)Wafula Kiberenge Mutoroiii)Mercy Khaindi Kiberengeiv)John Sikuku Kiberenge to hold 0.3 acres (0.2 Ha) reserved for the family graveyard.b.i)Catherine Naliaka - 0.4 Haii)Roselyne Mutoro - 0.430 Haiii)Benedette Buyayi Kiberenge - 0.40 Ha.c.Kimilili/Kimilili/ 5316 measuring 1.24 Ha – John Sikuku Mutoro.d.Kimilili/Kimilili/5326 measuring 1.20 Ha - Emmanuel Nyongesae.Kimilili/Kimilili/5327 measuring 0.24 Ha- George Willis Sirengo.f.Kiminini/Matunda Block 10/203i.Wafula Kiberenge Mutoro-1.0 Haii.Wilson Wanyonyi Mutoro-1.0 Hag.Each party to bear his own costsIt is so ordered. JUDGMENT DATED AND DELIVERED IN OPEN COURT AT BUNGOMA THIS 19TH DAY OF JUNE 2026HON. R. B. N. MALOBASPMIn the presence of;1st, 2nd and 4th Petitioners in person.