https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9397

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT KAKAMEGA** **SUCCESION CAUSE NO 703 OF 2011** IN THE MATTER OF THE ESTATE OF THE LATE JOHN LUVISIA LUKAMASIA(DECEASED) AND JEDINAH LUVISIA-------------------------------------------------------------------1ST PETITIONER DAVID LUKAMASIA LUVISIA-------------------------------------------------- 2ND PETITIONER AND KHATENJE LUVISIA------------------------------------------------ 1ST APPLICANT/OBJECTOR JULIA KHASIALA LUBISIA----------------------------------------2nd APPLICANT/OBJECTOR JACKLINE ANGOLIO LUVISIA---------------------------------3RD APPLICANT/ OBJECTOR MABEL KHAVAKALI ---------------------------------------------4TH APPLICANT/ OBJECTOR BRENDA MISHELI LUVISIA--------------------------------------- 5TH APPLICANT/OBJECTOR FRIDAH NYAKOA LUVISIA--------------------------------------6TH APPLICANT/ OBJECTOR **JUDGMENT** 1. The matter refers to the estate of the late John Luvisia Lukamasia, who died intestate on 30th November 2006. His beneficiaries, Jedinah Luvisia(widow) and David Lukamasia Luvisia(son), applied to be administrators of his estate, which comprised South /Kabras/Bushu/291 measuring 2.8 HA. 2. On 7th November 2013, Hon. Chitembwe issued a certificate of confirmation of a grant to both Jedinah Luvisia and David Lukamasia Luvisia. The whole of LR No. S/ Kabras/ Bushu/291 was allocated to David Lukamasia Luvisia. 3. Being dissatisfied with the mode of distribution and allocation of the whole of the deceased estate to David Lukamasia, the deceased daughters filed a notice of motion application dated 16th September 2025, claiming that the whole succession process was conducted in secret and in seclusion of the other beneficiaries, claiming that their brother had evicted their mother from the land and already leased it out to cane growers. 4. The court directed the matter for mediation, which was partially successful as the parties settled on the beneficiaries, the deceased properties, and the administrators; however, the issue still left unresolved for this court is the mode of distribution. 5. The parties had agreed that the deceased had died intestate, survived by one widow, and that he owed one parcel of land being S/Kabras/Bushu/291. 6. They listed the deceased beneficiaries. 7. Jedinah Luvisia- widow 8. David Lukamasia Luvisia- son 1975 9. Khatenje Luvisia- daughter- 1980 10. Julia Khashali Luvisia- daughter 2000 11. Jacklyne Angolio Luvisia- daughter 1986 12. Mabel Khavakhali Luvisia- daughter- 1990 13. Brenda Misheli Luvisia- daughter-1996 14. Fridah Nyakoa Luvisia- daughter- 1981 15. Boars Luvisia (deceased) 16. Kamande Luvisia (deceased) 17. The parties agreed that the grant and the certificate of confirmed grant be cancelled and a fresh grant be issued in the joint names of Jedinah Luvisia, David Lukamasia Luvisia, and Khatenje Luvisia, and that the land parcel S/ Kabras/ Bushu/291 be distributed to the beneficiaries. Analysis and determination. **ANALYSIS AND DETERMINATION** 1. This court has had the opportunity to carefully consider the prayers by the parties, the pleadings on record, as well as the mediation report dated 17th March 2026. 2. From the mediation report, the parties successfully settled most of the issues in dispute. They agreed on the identity of the deceased, the administrators of the estate, the beneficiaries, and the assets constituting the estate. They further agreed that the grant issued on 7th November 2013 and the certificate of confirmation of grant issued pursuant thereto be revoked and a fresh grant be issued jointly in the names of Jedinah Luvisia, David Lukamasia Luvisia, and Khatenje Luvisia. 3. The only issue left for determination by this court is the mode of distribution of Land Parcel No. South Kabras/Bushu/291 measuring approximately 2.8 hectares. 4. The deceased, John Luvisia Lukamasia, died intestate on 30th November 2006. It is not disputed that he was survived by one widow and several children, namely one son, being the 2nd petitioner, David Lukamasia Luvisia, and six daughters named above. The deceased, therefore, left behind a surviving spouse and children within the meaning of the Law of Succession Act. 5. This court notes that the grant confirmed on 7th November 2013 by Hon. Chitembwe allocated the entire estate to David Lukamasia Luvisia to the exclusion of all the daughters of the deceased and without any provision for the widow. 6. The Applicants contend that they were excluded from the succession proceedings and only discovered the existence of the confirmed grant after the estate had already been transmitted to their brother. They further state that the administrator has since leased out the land to outsiders to grow sugar cane and has since evicted their mother from the parcel of land to her detriment. 7. During the mediation process, the respondent did not deny the fact that the daughters of the deceased had not benefited from the estate. Indeed, during mediation, the parties agreed that the estate ought to be redistributed amongst the beneficiaries. 8. The issue, therefore, is whether the daughters of the deceased are entitled to inherit from the estate of their father and, if so, in what proportion. 9. The applicable law is Section 35 of the Law of Succession Act, which provides: - ***“35(1) Subject to the provisions of section 40, where an intestate has left one surviving spouse and a child or children, the surviving spouse shall be entitled to—*** ***(a) the personal and household effects of the deceased absolutely; and*** ***(b) a life interest in the whole residue of the net intestate estate:*** ***Provided that if the surviving spouse is a widow, that interest shall determine upon her remarriage to any person.”*** 1. Section 35 further provides that upon the termination of the life interest, the property shall devolve upon the surviving child or children equally. 2. Section 38 of the Law of Succession Act, which provides: - ***“Where an intestate has left a surviving child or children, but no spouse, the net intestate estate shall, subject to the provisions of sections 41 and 42, devolve upon the surviving child, if there be only one, or shall be equally divided among the surviving children.”*** 1. The operative words under Section 38 are *“equally divided among the surviving children.”* The statute does not distinguish between sons and daughters, married daughters and unmarried daughters, or children residing on the land and those living elsewhere. 2. The law recognizes all children of the deceased as equal beneficiaries. 3. The constitutional underpinning of that principle is found in Article 27 of the Constitution of Kenya 2010, which provides: ***“27(1) Every person is equal before the law and has the right to equal protection and equal benefit of the law.*** ***(3) Women and men have the right to equal treatment, including the right to equal opportunities in political, economic, cultural, and social spheres.*** ***(4) The State shall not discriminate directly or indirectly against any person on any ground, including sex, marital status, culture, birth, or social origin.”*** 1. The Constitution, therefore, outlaws discrimination based on gender and marital status. 2. The courts have consistently held that daughters cannot be disinherited merely because they are female or because they are married. 3. In Re Estate of **Solomon Ngatia Kariuki (Deceased) [2008] eKLR*,*** the court held that daughters are entitled to inherit equally with sons and that any customary practice that seeks to deny daughters inheritance rights is inconsistent with the Constitution and the Law of Succession Act. 4. Similarly, **in Rono v Rono & Another [2005] eKLR,** the Court of Appeal emphatically stated: *“The Law of Succession Act does not provide for discrimination between female and male children or between married and unmarried daughters. All children are entitled to equal treatment.”* 5. In **Re Estate of Lerionka Ole Ntutu (Deceased) [2019] eKLR*,*** the High Court reiterated that daughters have equal inheritance rights with sons and cannot be excluded merely because of customary considerations. 6. Likewise, in **In Re Estate of M'Ngarithi M'Miriti (Deceased) [2017] eKLR,**the Court of Appeal held that all children rank equally in inheritance and there is no legal basis for preferring sons over daughters. The court stated: “Daughters are entitled to equal treatment in matters of succession and inheritance. The Constitution and the Law of Succession Act do not permit discrimination based on gender.” 7. From the record, the entire estate measuring 2.8 hectares was allocated to David Lukamasia Luvisia, the 1st Applicant, who did not explain why the other beneficiaries, being the daughters of the deceased, were excluded during succession. 8. Further, there was no evidence on record to show that the daughters had renounced their entitlement. 9. No consents executed by the daughters were placed before the court. 10. There is equally no evidence that the daughters were notified of the confirmation proceedings. 11. Such distribution is inconsistent with Sections 35 and 38 of the Law of Succession Act. It is equally inconsistent with Articles 27 and 60 of the Constitution. 12. The court cannot sanction a mode of distribution that discriminates against daughters merely because they are female. 13. This court therefore finds that the allocation of the entire estate to David Lukamasia Luvisia was unlawful, discriminatory, and contrary to both the Constitution and the Law of Succession Act. 14. The parties have agreed that the deceased was survived by one widow and seven surviving children. 15. The court must therefore fashion a distribution that accords with the law and ensures substantive justice to all beneficiaries. 16. Given the age of the dispute and the consensus reached during mediation, the court is persuaded that equal distribution amongst the children of the deceased is the fairest and most equitable mode of distribution. 17. The court takes judicial notice that succession disputes involving the exclusion of daughters have historically generated conflict and family disharmony. 18. Accordingly, this court finds that Land Parcel No. South Kabras/Bushu/291 should be shared equally amongst the surviving children of the deceased after recognition of the widow's entitlement under Section 35 of the Law of Succession Act. 19. Such a distribution ensures that no beneficiary is unfairly disadvantaged and that all children of the deceased benefit from their father's estate without discrimination. 20. Consequently, this court makes the following orders:- a) The grant issued on 7th November 2013 and the certificate of confirmation of grant arising therefrom are hereby revoked and set aside. b) A fresh grant of letters of administration intestate shall issue jointly to Jedinah Luvisia, David Lukamasia Luvisia, and Khatenje Luvisia. c) Land Parcel No. South Kabras/Bushu/291 shall be shared equally among the deceased children, the mother shall have life interest as per the requirements of Section 35 of Succession Act. e) For avoidance of doubt, all surviving daughters of the deceased are entitled to inherit from the estate equally with the son and shall not be discriminated against on account of gender or marital status. In case any of the child is dead the share to go to their children. g) Each party shall bear its own costs, this being a family dispute. h) Right of Appeal 30 days. 1. Orders accordingly. **DATED, SIGNED AND DELIVERED IN OPEN COURT AT KAKAMEGA THIS 29TH DAY OF JUNE, 2026.** **S.MBUNGI** **JUDGE** **In the presence of:-** **CA:** Zildah/Velma. Parties present.