https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/579

**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. On 17th February 2026, this court issued summons to the Bungoma Land Registrar and the Bungoma County Land Surveyor to appear before this court to shed light on the identity and/or location of the deceased’s alleged 2 acres of land, which were reportedly hived from land parcel number E.Bukusu/N.Kanduyi/318. 2. The Bungoma County Land Surveyor visited the disputed parcel of land and prepared a report dated 23rd March 2026, which report was filed by the 2nd Petitioner’s counsel and served upon the Protester. 3. The Protestor’s counsel sought time to go through the said report and possibly cross-examine the Bungoma County Land Surveyor on the contents of the said report. However, the Protester’s counsel failed to secure the Bungoma County Land Surveyor’s attendance on several occasions, prompting this court to direct that the report on record be canvassed by way of written submissions. 4. Whereas the 2nd Petitioner filed their written submissions, the protester did not. **ANALYSIS AND DETERMINATION** 1. This court has given due regard to the Bungoma County Surveyor’s report dated 23rd March 2026 (“the report”) and the written submissions on record. 2. The only issue that commends to this court for determination is whether the report identifies the Clarah Nasimiyu alias Clare Nasimiyu Wafula (deceased) parcels of land up for distribution among her estate’s beneficiaries. 3. The report is marred with contradictions and alterations that are not countersigned. 4. It is interesting that, whereas the report states that the deceased owned land parcel number E. Bukusu/N.Kanduyi/10353, 10358, and 10686, the Google map imagery, and the sketch attached to the said report do not prove the existence of land parcel number E.Bukusu/N.Kanduyi/10686. It would appear that the report seeks to prove the existence of land parcel number E.Bukusu/N.Kanduyi/10686 through a copy of an altered official search of the said parcel of land. 5. Further, the sketch and the Google imagery introduce new parcels of land being E.Bukusu/N.Kanduyi/10681 and 10352, whose ownership is not known. 6. The alterations on the google map imagery, the sketch, and a copy of the search for land parcel number E. Bukusu /N. Kanduyi/10686, which are not countersigned, as well as the contradictions in the report alluded to by this court, raise questions on the existence of the alleged parcels of land numbers E. Bukusu/N.Kanduyi/10353, 10358, and 10686 reportedly owned by the deceased. 7. Simply put, the report, as it is, cannot resolve the question of the identity and location of the deceased’s parcels of land. 8. This court takes the humble view that the maker of the report is the one capable of shedding light on the contradictions and the alterations in his report. **DETERMINATION** 1. Given the reasons above, the orders that commend to this court are: 2. *Summons to issue to the Bungoma County Land Surveyor to appear before this court on 16th June 2026 for cross-examination on the contents of the report dated 23rd March 2026* 3. *Bungoma County Land Surveyor to avail to this court an original of the report dated 23rd March 2026, as well as original searches of land parcel numbers E. Bukusu/N.Kanduyi/10353, 10358, 10352, 10681 and 10686* **Ruling delivered and signed in open court at Bungoma this 07th day of May 2026** **T.O. OMONO** **SENIOR RESIDENT MAGISTRATE** **In the presence of:** Mwashi for the 1st Petitioner Ms. Nekesa h/b for Mr. Wasilwa for the Protester C/A: Mr. Rioba