[2023] KEHC 25420 (KLR)

In re Estate of Francis Wekesa (Deceased) (Succession Cause 3 of 2019) [2023] KEHC 25420 (KLR) (17 November 2023) (Judgment)

Neutral citation: [2023] KEHC 25420 (KLR)

Republic of Kenya

In the High Court at Bungoma

Succession Cause 3 of 2019

DK Kemei, J

November 17, 2023

In the matter of

Joseph Wamalwa Wekesa

1st Petitioner

Florence Namarome Wekesa

2nd Petitioner

Ann Kisaka Otieno

3rd Petitioner

Judgment

1. The 1st petitioner herein filed an affidavit of protest dated 29th day of April, 2021 in which he challenged the summons for confirmation of grant filed dated January 29, 2021 filed by the 2nd and 3rd Petitioners. The protestor’s gravamen is inter alia; that some beneficiaries namely Patrick Wanyonyi, Violet Nanjala Wekesa, Samuel Wanjala Wekesa, Titus Nabukhamba are not children of the deceased and thus not entitled to inherit from the estate and that the esrtate of the deceased should be shared among the three petitioners only; that at no time did the family of the late Francis Wekesa sat or had a meeting to agree on the mode of distribution of the deceased’s estate nor for the petitioning for the grant of letters of administration; that no notice was given to the 1st Petitioner with regard to any sitting to discuss the deceased’s estate and how the same ought to be distributed and that there are no minutes confirming his participation; that the proposed schedule of distribution put forward by the 2nd and 3rd Petitioners is unacceptable, unfair, riddled with illegalities and is generally lacking in material particulars; one Patrick Wanyonyi Wekesa is not a son of the deceased an is totally a stranger to the estate of the deceased and hence not entitled to any share of the deceased’s estate and likewise Patrick Wanyonyi who has never been brought up by the deceased and thus not a dependant of the deceased and as such his inclusion in the list of beneficiaries is not only fraudulent, illegal but also unlawful; that Violet Nanjala Wekesa is not a daughter of the deceased to whom these proceedings relate; that Samuel Wanjala Wekesa and Titus Nabukhamba have never been sons of the deceased nor beneficiaries of the deceased’s estate as they are children of one Pinka Kitui Namachanja ( deceased) who hailed from Bulondo sub-location and who are entitled to inherit LR No. E. Bukusu / W. Sangalo/487 which parcel of land is registered in the names of the said Pinka Kitui Namachanja; that from the apparent search of LR No. E. Bukusu/W. Sangalo/487 Titus Nabukhamba has already moved to exercise his beneficial rights thereto by registering a caustion over the said parcel; that the said Titus Nabukhamba and Samuel Wanjala ought to only play their role as sureties in this cause as they have already sworn affidavits indemnifying the deceased’s estate; that the land registration No. E. Bukusu/ S. Kanduyi/2612 is measuring approximately 2. 82ha translating to 6. 96 acres which ought to be divided between legal beneficiaries of the estate of the deceased as follows:- Ann Kisaka Otieno – 2. 9 acres

Florence Namarome ( to have life interest in the same )

Joseph Wekesa – 4 acres.

2. Partiies agreed to canvass the protest and the summons for confirmation of grant by way of viva voce ( oral) evidence. Parties filed and exchanged witness statements and documents before reception of the evidence. The evidence was as follows:

3. PROT. W1 James Wafula Wekesa adopted his witness statement dated 25/7/2021 as his evidence in chief. On cross-examination, he stated that he is not a family member of the deceased and that he had bought land from one Patrick Wekesa but did not have with him the sale agreement. Her finally stated that a child born out of wedlock can be brought home and denied knowledge as to whether a child born out of wedlock was brought to the home of the deceased.On re-examination, he stated that he had bought land from Patrick Wanyomyi Wekesa and cannot tell if the seller was the registered proprietor thereof.

4. PROT. W2 John Kasembeli- Wafula adopted his witness statement dated 16/11/2021 as his evidence in chief. On cvross-ecamination, he stated that the deceased was his younger uncle and the last born in the family. That the 2nd petitioner is the second wife of the deceased after the first wife died. That the 2nd petitioner came along with her children to the deceased. That none of the 2nd petitioner’s children were circumcised by the deceased. That they do not recognize the 2nd petitioner’s children as part of the family. That his father was the eldest brother to the deceased herein. That the land should be taken over by the deceased’s biological children. That he was present during the Bukusu ceremony ( Lufu) and that minutes were taken by the clan chairman Oscar Bwire. That he did not witness the circumcision of the illegitimate children. That the deceased did not accept the 2nd petitioner’s children born out of wedlock and who should move out and settle on their biological father’s land. He denied destroying the 2nd petitioner’s homestead as the destruction was due to rain water (flash floods). He maintained that the 2nd petitioner’s children were sired by one Pinika Namachanja. He denied claims that he and the family have harassed the 2nd petitioner since it is the 1st petitioner/protestor who has prevented her from farming on the land. He stated that the 1st petitioner has some mental problems and had previously been charged with an offence of murder.On re-examination, he stated that the minutes of the ‘’lufu’’ ceremony does not have the name of Titus Nabukhamba Namachanja. That the 2nd petitioner’s homestead was destroyed by flash floods. That the 2nd petitioner’s children were not sired by the deceased as the male children were sired by Pinika Namachanja and Meshack Naracha.

5. PROT. W3 George Mateyi Gabriel adopted his witness statement dated 14/1/2022 as his evidence in chief. He introduced himself as the secretary general of Bahengele clan in Kenya. On cross-examination, he stated that he cannot recall the date deceased married the 2nd petitioner but that the deceased had inherited the 2nd petitioner who was then a widow and who came along with two children namely Titus Nabukhamba and Samuel Wanjala and who remained with the deceased until his demise. That the said children did not become children of the deceased as he was not their biological father. That the deceased organized for the circumcision of the 2nd petitioner’s children. That the deceased used to mainatain the 2nd petitioner’s children. That the biolohgical children of the deceased are Joseph Wamalwa and Anne Kisaka. That it is the 1st petitioner who is currently using the land. He finally stated that they are not denying the 2nd petitioner and her children the land.On re-examination, he stated that during the ‘’lufu’’ ceremony Patrick Wanyonyi Wekesa turned up and claimed that he was a son of the deceased but his claim was rejected as he was known to be a son of one Meshack Naracha.

6. PROT. W4 Joseph Wamalwa Wekesa the protestor herein relied on his affidavit of protest sworn on 29/4/2021 as well as the documents annexed thereto as his evidence in chief. On cross-examination, he stated that he opposes the distribution by his co-petitioners as they have their own portions of land elsewhere. That he is sharing the land with his sister Anne Kisaka. That Samuel Wanjalka and Violet Nanjala are his brother and sister respectively. That he does not know Patrick Wanyonyi whom he has seen in court. He admitted that when he was born he found Titus, Samuel, Anne Violet andf Patrick already in the home as his parents used to take care of them. That it is only him whose hair was shaved in the river during the ‘’lufu’’ ceremony. That he had been having medical challenges. He admitted that his father took parental responsibility over Titus and Patrick when they were young and therefore are entitled to the estate.That he does not hate his mother and that he is the one who has leased out the whole parcel of land.On re-examination, he stated that it is only him and the 3rd petitioner who are the biological children of the deceased. That it is the flash floods which destroyed their mother’s homestead.

7. PROT. W5 Zacharia Masika Khisa testified that he is the assistant chief of Bulondo sub location and sought to rely on a letter dated 28/12/2018 regarding a dispuite over land parcel Bukusu/W. Sangalo/487. On cross-examination, he stated that the owner of parcel 487 is Namachanja Kitui alia Pinika. That the 2nd petitioner herein was inherited by the deceased and that he could not tell if the deceased maintained the two children that the 2nd petitioner came with.On re-examination, he stated that the two children who came along with the 2nd petitioner are entitled to a share of the estate.

8. PROT. W6 Moses Nyongesa testified that he is the senior chief of Khalaba location. He sought to rely on minutes taken on 2/4/2019 wherein he was present and participated in in the offices of the Assistant County Commisioner Kanduyi Division and that he later wrote an introductory letter for purposes of instituting a succession cause.On cross-examination, he stated that the 2nd petitioner informed him that the deceased had adopted her three children born out of wedlock as his own. That the land belonged to the family and not the clan.

9. That marked the close of the 1st petitioner/protestor’s case.

10. The 2nd and 3rd petitioners called nine witnesses in support of their case. Their evidence was as follows:

11. PET. W1 Florence Namarome Wekesa the 2nd petitioner herein, testified that the deceased was her husband. She adopted her witness statement dated 29/9/2021 as her evidence in chief. She added that she had six children with the deceased and urged the court to accept her proposed mode of distribution of the estate. On cross-examination, she stated that Pinika Kituyi Namachanja had been her husband with whom she had three children namely Samuel Wanjala Wekesa, Titus Nabukhamba and Violet Nanjala and after his death, she remarried and got married to the deceased herein. That the deceased had taken the children she came with as his own.That she does not agree with the proposed mode of distribution by the 1st petitioner and that she will not move to Bulondo as suggested by the 1st petitioner.On re-examination, she ststed that her children were then young when she moved in. That her sons were given two acres each iun Bulondo area.

12. PET. W2 Anne Kisaka Otieno the 3rd petitioner herein testified that she is the first born child of the deceased who left behind six children including herself. She stated that she found the 1st petitioner when she was born and that her father later introduced Patrick Wanyonyi in 2012. She added that the deceased died in 2017. She adopted her witness statement dated 26/5/2021 as her evidence in chief. She stated that she is in agreement with the proposed mode of distribution by the 2nd petitioner. On cross-examination, she stated that she is the first born child of the deceased while the 1st petitioner follows after her. That her mother gave birth to her and the 1st petitioner. That she is contended with the one acre provided for her in the proposed distribution.On re-examination, she stated that Patrick Wanyonyi works with the Catholic Church Kanduyi and resides there.

13. PET. W3 Titus Nabukhamba Namachanja stated that he is a resisdent of Mayanja and that the deceased had brought him up right from childhood. He stated that the 2nd petitioner is his mother. Hev stated that he was eight years old when the deceased rtook up parental obligations on him. He adopted his statement dated 20/9/2021as his evidence in chief. He stated that the family of the deceased is made of Samuel Wanjala Wekesa, Ann Kisaka Otieno, Patrick Wekesa, Joseph Wamalwa Wekesa, Violet Nanjala Wekesa and himself. He stated that he is in agreement with the proposed mode of distribution by the 2nd and 3rd petitioners herein.On cross-examination, he stated that the deceased brought him up from childhood. That he does not know one Pinika Kituyi Namachanja though he had been informed by his mother that the said person had been his biological father. That it is not true that he has been allocated two acres at his biological father’s land and that he is not utilizing the portion allocated to to him.On re-examination, he stated that he was chased by Kasembeli who demolished his house and that hei not able to access the portion allocated to him due to harassment by Kasembeli who has gone ahead to lease his portion of land. That he does not have land at his biological father’s home as alleged by the 1st petitioner.

14. PET. W4 Samuel Wanjala Wekesa testified that the deceased was his biological father and that they are six family members. He added that he is satisfied with the half acre allocated to him and that the distribution proposed by the 1st petitioner should be rejected. He further stated that his mother (2nd petitioner) currently resides with his brother Titus since her home was destroyed and all items sold.On cross-examination, he stated that his mother has not informed him of the identity of his biological father. That they are three siblings from his mother’s side before she bore three other children with the deceased.On re-examination, he stated that he does not know of any other land apart from the one allocated to him.

15. PET. W5 Violet Nanjala Wanyama testified that the deceased was her father while the 2nd petitioner is her mothe. She adopted her statement dated 26/5/2021 as her evidence in chief. She stated that the deceased hewrein died in 2017 and left behind six children. She added that she came to know Patrick in 2012 when the deceased accepted him as a family member. She finally stated that she is in agreement with the proposed mode of distribution of the estate by her mother.On cross-examination, she stated that the deceased was her father. That Patrick does not have a house on the deceased’s land. That she was present during the ‘’lufu’’ ceremony but cannot recall the person who conducted it. That Patrick joined the family in 2012 while already an adult and circumcised. That she does not know where her biological father lived and that her mother did not inform her on his identity.On re-examination, she stated that there is a family dispute as they are ubnable to access the land. That it is the 1st petitioner who is in cahoots with Kasembeli and both of whom demolished her mother’s house. That the 1st petitioner is of unsound mind. That during the ‘’lufu’’ ceremony, all the assets of the deceased were distributed in the presence of the family members and that there were no disagreements.x

16. PET. W6 Oscar Wabwile Tela testified that he is the second born from the second house while the deceased herein hailed from the first house. He adopted his statement dated 26/5/2021 as his evidence in chief. He added that the deceased left behind his wife (2nd petitioner ) and six children.On cross-examination, he stated that the 2nd petitioner had earlier been married to one Pinika Nmachanja and thye had three children namely Elozabeth Nanjala, Titus Nabukhamba and Samuel Wanjala. That at the time the 2nd petitioner married the deceased, the said children’s ages ranged between two and one year each and that the said children lived with the deceased. That the deceased had not sub divided his land prior to his death. That he has the clan minutes regarding the sharing of the assets of the deceased.On re-examination, he stated that the 2nd petitioner came with young children and that the deceased took them in as his own. That in 2012 Patrick Wanyonyi who was then residing in a church compound and was warmly received by the deceased as his son and that a ceremony was held.

17. PET. WK7 Patrick Wanyonyi Wekesa testified that he is a resident of Kanduyi Catholic church seminary where he had stayed from childhood. He adopted his statement dated 26/5/2021 as his evidence in chief. He stated that the deceased was his father who died in 2017. On cross-examination, he stated that he was born in 1977 and joined Kibabii Catholic Seminary in 1995 as an employee. That in 2012 the deceased organized a ceremony where he received him as hs son and he later went back to the seminary. That he used a different name during registration for an identity card as he had not been given the correct names of his father..On re-examination, he stated that the deceased had not sub divided his land by 2012. That in 2012 the 1st petitioner was in prison custody over a murder case. That nobody opposed him as a child of the deceased and that it is only John Kasembeli who is against him.

18. PET. W8 Geoffrey Musungu Walumbe testified that the deceased was his cousin. He testified that he was present during the ‘’lufu’’ ceremony upon demise of the decerased and that there was no problem. He adopted his statement dated 26/5/2021 as his evidence in chief.

19. PET. W9 Nehemiah Mukubwa Kinisu testified that he is the chairman of Human Rights Network Western Kenya. He adopted his statement dated 22/11/2021 as his evidence in chief. He stated that the family of the deceased sought help from him as the area chief had refused to issue them with the requisite introductory letter in order to enable them to lodge succession cause. He addede that they engaged the local administration where a way forward was given.

20. That marked the close of the 2nd and 3rd petitioners’ case.

21. Parties filed and exchanged written submissions.

22. Mr Murunga, learned counsel for the 1st petitioner/protestor raised two issues for determination namely whether Samuel Wanjala Wekesa, Violet Nanjala Wekesa, Titus Nabukhamba and Patrick Wanyonyi are children of the deceased and/or dependents and whether the court should adopt the mode of distribution as proposed in the application. It was submitted that the said persons should not inherit the estate of the deceased as they are not biological children of the deceased. It was submitted that the said persons have their own biological fathers and that they have already been provided accordingly by their families. Learned counsel further submitted that there was no proof of dependency by the aforesaid persons who are for all intents and purposes strangers to the estate. To allow them to inherit the estate will cause great prejudice to the petitioners herein who should be left to inherit the estate of the deceased as proposed by the 1st petitioner. Reliance was placed in section 29 of the Law of Succession Act and the case of Re Estate of Jedida Wambui Njoroge (deceased) Succession Cause 541 of 2014 [2022] KLR.

23. Mr Onyando for the 2nd and 3rd petitioners submitted that the proposed mode of distribution by the 2nd and 3rd petitioners should be accepted since all the beneficiaries except the 1st petitioner have duly signed the consent to distribution. It was submitted that the protestor failed to prove that the other beneficiaries were not dependent on the deceased prior to his death. Reliance was placed in section 3(2) and 29 of the Law of Succession Act. It was pointed out that the 1st petitioner in his evidence confirmed that the 2nd petitioner had come with her young children when she got married to the deceased and that the deceased took them in as his own children even as he sired the 1st petitioner and the 3rd petitioner. Learned counsel sought for the dismissal of the protest and that the grant be confirmed in accordance with the proposed mode of distribution by the 2nd and 3rd petitioners.

Analysis and Determination 24. I have given due consideration to the rival evidence of the 1st petitioner/protestor and the 2nd, 3rd petitioners as well as the submissions of their respective learned counsels. It is not in dispute that the 2nd petitioner was married to the deceased after the deceased’s first wife died. It is also not in doubt that the said 2nd petitioner at the time of the marriage came along with her young childfren whom the deceased took in as his children. It is also not in dispute that the deceased and the 2nd petitioner were blessed with two biological children namely the 1st and 3rd petitioners herein. It is also not in dispute that the 2nd petitioner had earlier been married to one Pinika Kitui Namachanja and that upon his demise, she got married to the deceased herein. I find the two issues foe determination are firstly, whther the 2nd petitioner and her children born out of wedlock including the one introduced by the deceased namely Patrick Wanyonyi Wekesa are dependants of the deceased and entitled to inherit his estate and secondly; which mode of distribution of the estate is suitable in the circumstances?

25. As regards the first issue, it is necessary to fall back on the Law of Succession Act as regards the question of who is a dependant. Section 29 of the Act provides:“‘’a.the wife or wives, or former wife, or wives, and the children of the deceased whether or not maintained by the deceased immediately prior to his death;b.such of the deceased’s parents, step-parents, grandchildren, step-grandchildren, children whom the deceased had taken into his familyas his own, brothers and sisters, and half-brothers and half-sisters, as were being maintained by the deceased immediately prior to his death; andc.where the deceased was a woman, her husband if he was being maintained by her immediately prior to the date of her death.’’

26. It transpired from the evidence that the 2nd petitioner at the time of her marriage to the deceased she came along with three children namely Samuel Wanjala, Titus Nabukhamba and Vilolet Nanjala who were then still young and that the deceased took them in as his own and maintained them. The deceased and the 2nd petitioner were subsequently blessed with two children namely Joseph Wamalwa Wekesa and Ann Kisaka Otieno. The evidence of the 3rd petitioner Ann Kisaka Otieno is that she is the first born biological child of the deceased and the 2nd petitioner and who stated that she grew up together with her brothers Titus Nabukhamba, Samuel Wanjala, Joseph Wamalwa as well as Violet Nanjala. She also testified that the deceased later introduced to the family Patrick Wanyonyi Wekesa as one of his sons through Bahengele clan ceremony regarding children sired out of wedlock. She added that her father later organized for her brothers’ circumcision and that he later collected dowry during the marriage of Violet Nanjala. It was her evidence that the 1st petitioner has ganged up with the clan to disinherit her and the rest of the family. She vouched for the mode of distribution presented by the 2nd and 3rd petitioners. Her sentiments have been echoed by Oscar Wabwile Tela who is a brother to the deceased and who stated that the 2nd petitioner came along with her young three children when she married the deceased and that the deceased agreed to take them as his own and maintained them since he loved them. He also stated that in 2012 the deceased invited him for a ceremony wherein he introduced one of his sons sired out of wedlock namely Patrick Wanyonyi Wekesa. It was his evidence that the 1st petitioner is ganging up with one John Kasembeli to disinherit the dependents of the deceased. Geoffrey Musungu Walumbe a cousin to the deceased echoed the sentiments of Oscar Wabwile Tela that during the Bukusu ‘’Lufu’’ ceremony the clan members resolved that all the children of the 2nd petitioner who had been taken in by the deceased were deemed as the deceased’s children. He further stated that the deceased had taken parental responsibilities as he later circumcised the male childrenand lkater collected dowry following the marriage of one of the female children who had came along with the 2nd petitioner.

27. The 1st petitioner and his witnesses have strongly taken the view that the three children who came along with the 2nd petitioner during her marriage to the deceased are children of one Pinika Kitui Namachanja and that they have already been provided for in land parcel number East Bukusu/West Sangalo/487 and therefore should leave the 1st Petitioner and 3rd petitioner who are the biological children of the deceased to inherit land parcel East Bukusu/South Kanduyi/2612. The 1st petitioner has also maintained that Patrick Wanyonyi Wekesa is a son to one Meshack Masinde Naracha and that he should pursue his interest there and should not claim from the deceased.

28. It transpired that the 2nd petitioner’s former husband Pinika Kitui Namachanja owned parcel number East Bukusu/West Sangalo/487 and that the 1st petitioner now insists that the three children that accompanied the 2nd petitioner during her marriage to the deceased should proceed to occupy the land and leave him alone with his sister (3rd petitioner). It also transpired there was a dispute about the identity of the biological father of one of the beneficiaries namely Patrick Wanyonyi Wekesa. Whereas the maintains that 2nd and 3rd Petitioners claimed that the father of the said beneficiary was the deceased herein, the 1st petitioner maintains that Meshack Masinde Naracha is the biological father of Patrick Wanyonyi Wekesa. The 2nd and 3rd petitioners have claimed that the deceased had introduced the said Patrick Wnyonyi Wekesa as his son in 2012 and organized a ceremony over the same. A perusal of the pleadings herein reveals that one Meshack Masinde Naracha filed an affidavit sworn on 24/11/2021 wherein he vehemently denied being the biological father and added that even though he had a relationship with Patrick Wanyonyi Wekesa’s mother following the death of her husband, he did not sire him and that he later learnt from his mother that the person who sired him was indeed the deceased herein and he thus severed the relationship. At the time of the hearing of this matter both the deceased herein was already dead as well as the mother of Patrick Wanyonyi Wekesa and hence the only person who could shed more light regarding his paternity is Meshack Masinde Naracha but who has denied being his biological father. Matters have not been helped any better since none of the parties herein availed any DNA evidence linking the said Patrick Wanyonyi Wekesa to the deceased as his biological father or even to Meshack Masinde Naracha who has distanced himself.

29. As the protestor has isolated the three children who acme alongside the 2nd petitioner during her marriage with the deceased, it was thus necessary for the said beneficiaries to prove the fact of dependency and show that the dceased had maintained them prior to his death. It is not in dispute that at the time of the marriage between the 2nd petitioner and the deceased, her three children sired by the late Pinika Kitui Namachanja were still minors and that thery grew up at the home of the deceased until the other children were (1st and 3rd petitioners) were born. If the said children remained with the deceased all that long, then it is obvious that the deceased had taken them in as his own children. The two clan elders, Oscar Wabwile Tela (PET. W6) and Geoffrey Musungu Walimbe (PET. W 8) confirmed that indeed the deceased had taken the three children born out of wedlock as his own and maintained them during his lifetime. They also stated that the said children were recognized as children of the deceased during the Bukusu ceremony (‘’lufu’’). Iam satisfied that the three beneficiaries namely Titus Nabukhamba Namachanja, Samuel Wanjala Wekesa and Violet Nanjala Wanyama have established on a balance of probabilities that they were mainatained by the deceased at the time of his death and are thus entitled to share in his estate. Even though the protestor and his witnesses have claimed that the said beneficiaries have already been provided for in the estate of Pinika Kitui Namachanja, I find such assertion does not prevent the said beneficiaries from having a shgare in the estyate of the deceased herein. The assets of the late Pinika Kitui Nmachanja are not part of the estate of the deceased herein and hence should not be used as a measure against what the beneficiaries are to get. The protestor’s grouse that his step- siblings are going to have more than him is thus not convincing since the two properties werer not wholly owned by the decased. The protestor therefore must be prepared to share the estate with his erstwhile step-siblings who apparently are children of two worlds so to speak. In any event, the issue of sharing need not necessarily be based on equality but equity.

30. As regards Patrick Wanyonyi Wekesa, it is noted that he was not staying with the deceased all his youthful life until 2012 when the deceased is reported to have introduced him to the family and held a small ceremony for him where he announced that he was his son born out of wedlock. It is instructive that the said Patrick Wanyonyi Wekesa left as soon as the ceremony was over and thus did not stay with the deceased. No evidence was shown the that the deceased maintained him prior to his death. In fact it transpired that the said beneficiary used to work and reside within the catholic church around Kanduyi. Consequently, I find that he has failed to prove dependency to the required standard and hence he will be excluded from the distribution. Towards this end therefore, the protestor’s claim only succeeds to the extent that Patrick Wanyonyi Wekesa stands excluded from the estate while the other three beneficiaries Titus Nabukhamba Nmachanja, Samuel Wanjala Wekesa and Violet Nanjala Wanyama as well as the 2nd and 3rd petitioners will be entitled to a share in the estate.

31. As regards the second issue, it is notted that the 2nd and 3rd petitioners have come up with a reasonable mode of distribution of the estate which caters for the three children born out of wedlock as wellas the two biological children of the deceased including the 2nd petitioner. It is noted that during the hearing of the protest, it came out clearly that the protestor exhibited a lot of distain against the 2nd petitioner who is his own biological mother and the only surviving parent. This was quite astonishing. It also transpired that the protestor had teamed up with a few clan members to remove thos who were not biological children of the deceased and further extended the ban on his own mother. At the time of the hearing, his mother was reported to be staying with one of her sons who is not a biological child of the deceased as it was claimed that her homestead had been demolished. Even though the protestor claimed that the 2nd petitioner’s house had been damaged by flash floods, the same is not convincing as it is obvious that the 2nd petitioner had been evicted from her house as he was not wanted in the area. The proposed mode of distribution by the protestor isnot reasonable in the circumstances and is for rejection as there is element of discrimination. The proposed mode of distribution by the 2nd and 3rd petitioners appear to be reasonable save only that the share of Patrick Wanyonyi Wekesa ought to be removed as he has not proved that he was a dependant of the deceased prior to his death. Hence, the share of that particular beneficiary will be distributed equally among the six beneficiaries.

32. In the result, the protestor’s protest partly succeeds to the extent that Patrick Wanyonyi Wekesa is not a beneficiary and that his share of 2 acres will be distributed among the six beneficiaries equally so that each beneficiary will get an extra 0. 3 acres. Consequently, the grant issued on 29/9/2020 is hereby confirmed and that the estate will be distributed as follows:1. Florence Namarome Wekesa(Widow)…………0. 8 acres2. Ann Kisaka Otieno(daughter)………………….1. 3 acres3. Samuel Wanjala (son)…………………………..0. 8 acres4. Violet Nanjala (daughter)…………………….0. 55 acres5. Titus Namukhamba (Son)……………………0. 8 acres6. Joseph Wamalwa (son)……………………2. 8 acres7. Patrick Wanyonyi Wekesa…………………NILAs the parties are related, I order each to bear their own costs.

Dated and delivered at Bungoma this 17 th dayOf November ,2023D.KemeiJudgeIn the presence of :Sabwan for Masengeli for 1st Petitioner/ProtestorOnyando for 2ndand 3rdPetitionersKizito Court Assistantjudgment in bgm hc p&A no. 3 of 2019 0