https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9580

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT BUNGOMA** **SUCCESSION CAUSE NO. 51 OF 2003** **IN THE MATTER OF THE ESTATE OF THE LATE WILLIAM MURUNGA ALSO KNOWN AS MURUNGA NABILAYI — DECEASED** **BETWEEN** **JOSEPH MUTORO MALOBA ................1ST PETITIONER/APPLICANT** **BENSON NABILAYI MURUNGA ..................................2ND PETITIONER** **JOHN WAMALWA MURUNGA ......................................3RD PETITIONER** **RULING** 1. This matter is coming up for directions. On **11th February 2025**, The District Surveyor who had filed in court a report dated 8th December 2023, which identified the acreage of the four parcels the subject matter of this cause as **Kimilili/Kamukuywa 271, 280, 2349 and 2350**, appeared in court and spoke to his said report for reasons that the 1st Petitioner/Applicant had filed an affidavit of protest to the said report dated 7th February 2024. 2. After the cross examination of the Surveyor by the said Applicant Joseph Mutoro Maloba, the Hon Ougo J considered the report and gave directions that what is left is the mode of distribution of the estate. She also observed that the surveyor in his report informed the court that the petitioner needs to file a proper application based on his observation recorded in the report. The court therefore ordered that the parties were at liberty to file an amended mode of distribution or a proper application based on the District Surveyor’s Report. Subsequent thereto, the 1st Applicant filed and served upon the 2nd Petitioner a Replying Affidavit dated 3rd April 2025. 3. The court considered the said Affidavit and gave a Ruling dated 3rd March 2026. In that Ruling, Hon Justice Ougo noted that the parties had not complied with the directions that the court had given. As a way forward, the Hon Judge issued summons to the 2nd Administrator Benson Nalibayi to attend court so that the court can then decide on the next step. The court further ordered the two administrators to inform the beneficiaries to attend court. 4. At the subsequent mention and the one thereafter when this court took up the matter, it is only the 1st Administrator and one Wycliffe Chebukati and Enock Wekesa who are purchasers, who attended court. The 1st Administrator informed the court that he had filed a Further Replying Affidavit that he wanted the court to consider. The purchasers on their part stated that they do not want many stories, all they want is that the boundaries be determined and they be given their titles. 5. The court has perused the Replying Affidavit referred to by the 1st Applicant. It is dated 5th March 2026. The court has observed that it is a replication in almost all of its material particulars, to the Replying Affidavit dated 3rd April 2025 filed by the same said 1st Applicant/Respondent Joseph Mutoro Maloba. It is this Replying Affidavit dated 3rd April 2025 that culminated into the court’s Ruling dated 3rd March 2026. The Hon Ougo J therein held that the Affidavit does not amount to a proposed a mode of distribution that the court had directed the parties to file on 11th February 2025 that the court could act upon. 6. This court further notes that in the said Affidavit dated 5th March 2026, the 1st Petitioner/Applicant repeatedly refers to orders/directions of the court given on 15th June 2023 and issued on 6th September 2023. He seeks that the District Surveyor executes his mandate in accordance with this order/directions. 7. My perusal of the court file has revealed that it is on the basis of the orders of 15th June 2023 that the District Surveyor visited the site and prepared his Report dated 8th December 2023 to which the 1st Applicant/Petitioner, the said Joseph Mutoro Maloba, filed an Affidavit of Protest, whereupon he was given an opportunity to cross examine the Surveyor, subsequent to which the court gave the directions dated 11th February 2025. 8. Having perused the Affidavit dated 5th March 2026 and having considered its contents, this court also agrees with the finding of Hon Ougo J as I have herein above summarised, that the Further Affidavit cannot by any stretch of the imagination be considered to be a proposed mode of distribution, even supposing the court were to give the 1st Applicant the benefit of disregarding procedure and looking to the substance of his case, for reasons that he is unrepresented. 9. Further, the main issue of the District Surveyor visiting the site in compliance with the courts orders/directions that the 1st Applicant/Petitioner has prominently raised in the said Affidavit is already spent and is now moot. This because on the strength of these very same directions, the District Surveyor already visited the site, surveyed the parcels of land and filed his Report, which the 1st Applicant/Petitioner even cross examined the Surveyor on and the court gave a way forward on 11th February 2025. 10. It is this order of 11th February 2025 that is still the subject of these directions of today. From my brief summation as herein above, it is clear that nothing has changed. There has been no compliance with the said directions thus far. For the foregoing reasons, so as to enable the Court make a proper determination on the distribution of the estate, the Court now hereby gives the following orders and directions: 11. **the 1st Petitioner, together with the other administrators of the estate and parties, shall file and serve a consolidated Amended Mode of Distribution which is to incorporate the observations and recommendations made in the District Surveyor’s Report dated 8th December 2023 and signed by the all the Administrators as a proposed formal mode of distribution within 45 days from the date of this Ruling. In the event that the Administrators are not able to agree on a consolidated proposal, the 1st Applicant/Petitioner is to comply** 12. **The proposed Amended Mode of Distribution or the formal application must comply with the following:** 13. **identify each parcel by parcel number and the acreage as recorded in the surveyor’s report;** 14. **state which beneficiary(ies) are proposed to receive each parcel, or set out the precise method by which parcels will be allocated among beneficiaries; and** 15. **where practical, include copies of any title documents, transfer documents, or particulars that will assist the Court match the parcels to the beneficiaries.** 16. **Should any party fail to comply with this Order, the Court shall proceed to determine the mode of distribution based on the material already on record without any further reference to the defaulting party and will proceed to make any such consequential orders as may be appropriate, including an order as to costs.** 17. **The matter shall be mentioned on 8th October 2026 for confirmation of compliance and further directions.** 18. **The administrators are directed to inform all the beneficiaries of these directions and avail them all on the dates fixed for compliance. For those beneficiaries that shall not be available, proof of service is to be filed at the registry before the mention date.** **Read Dated and Signed at BUNGOMA on 2nd July 2026.** **E. OMINDE** **JUDGE**