https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7298

In re Estate of Musee Wabilia (Deceased) (Succession Cause 38 of 2008) [2026] KEHC 7298 (KLR) (21 May 2026) (Ruling) Neutral citation: [2026] KEHC 7298 (KLR) Republic of Kenya In the High Court at Bungoma Succession Cause 38 of 2008 REA Ougo, J May 21, 2026 IN THE MATTER OF THE ESTATE OF MUSEE WABILIA - DECEASED Between Ismael Wangila Omar 1st Administrator Rose Nangunda Simiyu 2nd Administrator and Musa Wanyonyi Tori Objector Ruling 1.This succession cause relates to the estate of Musee Wabilia (“the deceased”), who died on 26/7/1985. The Administrators obtained a Grant of Letters of Administration on 15/3/2022 and had it confirmed on 20/6/2022, with the deceased’s estate distributed therein. 2.Subsequently, it was established, vide a survey report by the County Survey Office dated 28/6/2024, that the actual ground acreage, as per the existing boundary, was approximately 31.67 Ha (78.26 acres), whereas the registered acreage in the land registry was 43.63 Ha (107.81 acres), and the total acreage to be shared by the beneficiaries, as per the Certificate of Confirmation of Grant issued, was 45.97 Ha (113.60 acres). The report thus recommended that the court redistribute and revise the beneficiaries' shares. 3.The court thus directed the parties to file their revised proposed mode of distribution for consideration by the court. The parties also filed for consideration by court. 4.In their submissions, the administrators urged the court to review and amend the Certificate of Confirmation of Grant and to adopt the mode of distribution annexed to their supporting affidavit, sworn on 24/9/2024, as agreed by the family members and supported by the survey report dated 28/6/2024. 5.On his part, the objector urged the court to be guided by the report dated 15/11/2023, as it was well thought out and based on a scientific and practical approach to the redistribution. The report revealed the hostility on the ground by the administrators towards the equal distribution of the estate to the female heirs. 6.That the report relied on by the administrators failed to attempt any redistribution of the deceased’s estate and merely restated the discrepancy in acreage, thereby leaving the court with no real basis to act. 7.That the meeting on which the administrators relied as a venue where there was an agreement by the family members on the mode of distribution was not inclusive, as it was not attended by all the beneficiaries, and the resolutions were oppressive to the female heirs. 8.That the admissions by the administrators that portions of the deceased’s estate had been sold amounted to a direct contravention of section 45 of the Law of Succession Act. Determination 9.I have considered the record herein. I note that the deceased’s estate had already been distributed, and the issue arose only when it was discovered that the acreage as distributed under the Confirmation order exceeded the actual acreage on the ground. To this end, the Certificate of Confirmation of Grant, dated 20/6/2022, became inoperable. 10.Accordingly, the parties have approached the court to have the estate redistributed. It is evident that there is no agreement on the mode of distribution. In such cases, the Courts step in to distribute the estate when, as in the current case, parties are unable to agree. 11.In Rono v Rono & another [2005] KECA 326 (KLR), the Court of Appeal stated, inter alia, that the principle of equal shares in land distribution is tempered by the principle of equitable distribution. This approach allows the Court to avoid the physical division of each parcel of land, which may result in uneconomical sizes or increase the costs of transmission, where this can be avoided. Therefore, in exercising its discretion, the Court should ensure a fair distribution of the deceased’s estate. 12.Having regard to the circumstances, I find the objector’s proposal, as detailed in the Survey Report dated 15/11/2023, favourable. The proposal provides for an equal distribution of the deceased’s estate among the female heirs, whereas the mode proposed by the administrators does not. 13.Article 27 of the Constitution of Kenya guarantees equality before the law for every person and explicitly prohibits direct or indirect discrimination based on gender or marital status. Further, Law of Succession Act (Cap 160) under Sections 35 and 38, it is provided that if a person dies without a will (intestate), the net estate must be divided equally among all surviving children, without any gender distinction. 14.I find fault with the mode of proposal relied on by the administrator on the ground that it is based on a meeting at which family members allegedly attended and at which the said distribution was agreed; however, this was controverted by the objector, who contended that it did not include all family members. 15.Finally, I find the mode of distribution proposed by the objector to be well reasoned and to offer a proportional redistribution of the deceased’s estate, as provided under Section 40 of the Law of Succession Act, compared with the mode proposed by the administrators. 16.The upshot of the above is that this court adopts the mode of distribution attached to the Survey Report dated 15/11/2023. DATED, SIGNED AND DELIVERED VIRTUALLY THIS 21ST DAY OF MAY 2026.R.E. OUGOJUDGEIn the presence of:Mr. Murunga for the petitionerMiss Nekesa h/b for Mr. Kapten the BeneficiariesWilkister C/A