[2025] KEHC 1073 (KLR)

In re Estate of James Wamalwa Wangila (Deceased) (Succession Cause 174 of 2014) [2025] KEHC 1073 (KLR) (27 February 2025) (Ruling)

Neutral citation: [2025] KEHC 1073 (KLR)

Republic of Kenya

In the High Court at Bungoma

Succession Cause 174 of 2014

REA Ougo, J

February 27, 2025

IN THE MATTER O THE ESTATE OF JAMES WAMALWA WANGILA ( DECEASED)

In the matter of

Christopher Simiyu Wamalwa

1st Petitioner

Wilerforce Wangila Wamai

2nd Petitioner

and

Beatrice Nanjala Kololi Wamalwa

Interested Party

Ruling

1. James Wamalwa Wangila died on the 7. 08. 1997. On the 22nd May 2015 Christopher Simiyu Wamalwa and Wilberforce Wangila Wamai (the petitioners) applied to confirm the grant of letters issued on 14. 7.2014. This is after a grant of letters of administration intestate was issued to the 2 petitioners and Beatrice Nanjala Kokoli Wamalwa on 14. 7.2014. The deceased was survived by 8 wives and several children, about 29 as per the affidavit in support of the petition of administration intestate. The assets of the estate of the deceased are: East Bukusu/ North Sang'alo/ 865-7. 49HA, East Bukusu/ North Sang'alo/2193-2. 4HA, East Bukusu/ Sang’alo/860-4. 2 ACRES Plot no.105-50X100FT /Municipality Bungoma Town and Plot No/3 Ndengelwa Market.

2. After the application to confirm the grant was filed, Beatrice, the 3rd administrator/ interested party, filed an affidavit of protest dated 15. 6.2015. In a joint affidavit dated 22. 5.2015, the petitioners propose their mode of distribution and aver as follows;a)1st Widow: Margaret Nasambu Subai Wamalwa(i)Christopher Simiyu Wamalwa - Son(ii)Jentrix Nekesa Wamalwa Daughter – Married(iii)Stephen Munoko Wamalwa Son – Deceased(iv)Scolastic Nasambu Wamalwa daughter – unmarried.(v)Batholomeni Georgrey Wamalwa Son – Deceasedb)2nd Widow: Consolata Nanjala Wamalwa – Deceased(i)Philis Likelesia Wamalwa – Daughter ( married).(ii)Wilberforce Wangila Wamalwa – Son(iii)Catherine Nafuna Wamalwa - daughter - married(iv)Gladys Naliaka Wamalwa daughter – Married(v)Dorice Nafula Wamalwa – Daughter – Married.(vi)Edward Wakhungu Wamalwa - Son(vii)Fernandes Wafula Wamalwa – Son(viii)Virginia Nanyama Wamalwa – Daughter – Married(ix)Pauline Nanyama Wamalwa – Daughter – Married.c)3rd Widow : Sarah Nambuba Wamalwa(i)Francis Sudi Wamalwa - Son(ii)Natecho Wamalwa – Daughter – Married(iii)Nabwile Wamalwa – Daughter – Married.d)4th Widow: Beatrice Nanjala Kokoli Wamalwa(i)Anthony Masinde Wamalwa – Son(ii)Faith Nangami Wamalwa – Daughter – Married(iii)Kennedy Wafula Wamalwa – Son – Deceased(iv)Seiler N. Wamalwa – Daughter – unmarried(v)Mulongo Wamalwa - Daughter unmarried(vi)Mukhwana Wamalwa – Daughter – unmarried.e)5th Widow: Jane Wamalwa – Deceased(i)William Juma Wamalwa - Son – deceasedf)6th Widow: Syrilla Wamalwa – deceased(i)Nafula Wamalwa - Daughter -married(ii)Hosea Simiyu Wamalwa – son – deceased(iii)Colleta Wamalwa - Daughter - married.g)7th Widow:Perita Wamalwa(i)Kennedy Wamalwa – Sonh)8th Widow: N. Wamalwa(i)David Wamalwa – Son

3. According to the petitioners the deceased left behind the following assets; East Bukusu/North Sang'alo/865, East Bukusu/North Sang'alo/2193, East Bukusu/ North Sang'alo/860, Ndengelwa Market Plot No. 3 fully developed, 1 Acre Purchased from Pius Juma Macheusi not transferred and Bungoma Municipality No 105 Measuring 50x100 ft fully developed. They aver they have agreed to share the deceased Estate as follows:-1. East Bukusu/North Sang'alo/8651. Christopher Wamalwa 0. 67HA2. Alice Auma Samuel 0. 20HA3. Eliya Matibila 0. 26 HA4. Wafula Nalianya Wajuye 0. 21 HA5. Margaret Nasambu 0. 18 HA6. Joseph Gicharu Wanyoike 0. 22 HA7. Benjamin Juma Simiyu 0. 13 HA8. Grace Nafula Wasike 0. 05 HA9. Antonina Waswa 0. 30 HA10. Raphael Wafula 0. 07 HA11. Natembea 0. 05 HA12. Christine Atemba Okwemba 0. 08 HA13. Elizabeth Walubuka 0. 05 HA14. Antonina Waswa 0. 03 HA15. Roy Ngutu Wafula 0. 07 HA16. Wilberforce Waswa 0. 23 HA17. Margaret Mateba 0. 04 HA18. Christopher Simiyu Wamalwa 0. 39 HA19. Bridgit Nafula Juma 0. 19 HA20. Alice Nekesa Amukata 0. 04 HA21. Peter Mboyia Okaka &Japheth Guda Midambu 0. 21 HA22. Nerbert Mandala 0. 031HA23. Josephine Naliaka Waswa 0. 25 HA24. Jane Imali Wamalwa 0. 47HA25. Aria Ken Co. Ltd 1. 03HA26. Nerbert Mandala 0. 07HA2. East Bukusu/North Sang'alo/219327. Aria Ken. Co ltd 0. 48 HA28. Nerbert Mandala 0. 07 HA29. Jane Munoko Wamalwa 0. 35 HA30. Peter Okaka & JaphethGuka Midambu 0. 39 HA31. Julia Namukuru 0. 72 HA32. Roy Ngutu Wafula 0. 20 HA33. Antonina Naswa Juma 0. 06 HA34. Raphael Wafula 0. 04 HA35. Antonina Naswa Juma 0. 10 HA

4. They also avers that they agreed to have the Bungoma/Municipality/105 and the plot No. 3 at Ndengelwa market shared equally as per each widow’s house. Some of those they have included as beneficiaries are purchasers who purchased from the deceased’s dependents.

5. Beatrice states as follows in her affidavit dated 24. 1.2018: The deceased had 4 wives, namely:-1. Margaret Nasambu Subai2. Sarah Mahaya3. Consolota Nanjala ( deceased)4. Beatrice Nanjala

6. That of the 4 wives, Sarah Mahaya had left the deceased by the time she got married to him in 1980. She had 3 children with him namely: -(i)Francis Sudi Mahaya(ii)Natecho Wamalwa(iii)Nabwile Wamalwa.Sarah got married elsewhere and never came back. She is still away.

7. Consolata Nanjala had 9 children with the deceased namely:-(i)Philis Lukelesia(ii)Wilberforce Wangila(iii)Catherine Nafuna(iv)Gladys Naliaka(v)Dorice Nafula(vi)Edward Wakhungu(vii)Feranandes Wafula(viii)Virginia Nelima(ix)Paulyne Nanyama

8. That the deceased had the following properties in his names(a)Land parcel NO. E. Bukusu/N. Sang’alo/860(b)Land Parcel No. E. Bukusu/N. Sang’alo/865(c )Land Parcel No. E Bukusu/N. Sang’alo/2193(d)Plot No.3 at Ndengelwa Market(e)Plot No. 105 in Bungoma town.

9. These properties had already been allocated to the beneficiaries by the deceased himself as follows before he died:-(a)Land Parcel NO. E. Bukusu/N. Sang’alo/8651st House1. Margaret Nasambu Subai - Widow – 1 acre2. Christopher Simiyu Wamalwa – Son – 1 acre3. Jentrix Nekesa Wamalwa – Daughter – 1 acre4. Stephen Munoko Wamalwa – Son (deceased) – 1 acre5. Betholomew Geoffrey Wamalwa – Son (deceased) – 1 acre6. William Juma Wamalwa - Son ( deceased) – 1 acre7. Scolastic Nasambu Wamalwa – son – 1acre8. Francis Sudi Wamalwa – Son – 1 acre9. Natecho Wamalwa - Daughter – 1 acre10. Kennedy Wamalwa – Son – 1 acre, Total 10 acres2nd House1. Consolata Nanjala Wamalwa - Widow ( deceased ) – 1 acre2. Philis Lukelesia Wamalwa - Daughter - 1 acre3. Wilberforce Wangila Wamalwa – Son – 1 acre4. Catherine Nafuna Wamalwa – Daughter – 1 acre5. Gladys Naliaka Wamalwa – Daughter – 1 acre6. Dorice Nafula Wamalwa - Daughter - 1 acre7. Edward Wakhungu Wamalwa - Son – 1 acre8. Fernandes Wafula Wamalwa – Son – 1 acre9. Virginia Nelima Wamalwa – Daughter - 1 acre10. Pauline Nanyama Wamalwa – Daughter – 1 acreTotal 10 acres(b)Land Parcel No. E. Bukusu/N. Sang’alo/2193(c )Land parcel No. E. Bukusu/N. Sang’alo/8603rd House1. Beatrice Nanjala Wamalwa - Widow 1 acre2. Anthony Masinde Wamalwa – Son - 1 acre3. Faith Nangami Wamalwa - Daughter - 1 acre4. Kennedy Opare Wamalwa - Son ( deceased) 1 acre5. Sella Nafula Wamalwa - Daughter - 1 acre6. Marion Purity Mulongo Wamalwa - Daughter - 2 acres, Total 9 acres.(d)Plot No. 3 Ndengelwa MarketMargaret Nasambu Subai Wamalwa( e)Plot No. 105 Bungoma TownBeatrice Nanjala Wamalwa.

10. That land parcel No. E. Bukusu/S. Kanduyi/860 was specifically purchased for her, and she contributed half of its purchase price from her salary. By the time the deceased passed on, the title to this land was still in the name of the seller. She took out limited grant letters of administration and eventually got it registered directly in her name. That the mode of distribution proposed by the petitioners in support of the summons for confirmation of grant dated 22nd May 2015 is not acceptable. Paragraph 5 contains names of persons who are not dependents of the deceased. Although there is an attempt to justify this by alleging that those persons are purchasers from the deceased dependants it is important to know which of the dependents sold and to whom for equitable distribution. Paragraph 6 is vague. It does not disclose who agreed and what: equal “means”. Regarding plot no. 105 Bungoma Town it has been her matrimonial home ever since she was married by the deceased, save for a short time when she lived in a rental house. The plot was undeveloped when she got married to the deceased, and there was a threat by the government to repossess it for lack of development. She decided to save it by carrying out the development that is now on it, thus making it her home. She used my salary and contributions from her late father to do this. The deceased’s only contribution was supervision and a bit of labor. She has all along paid the rates and rent for the plot from my own money. Consent has not been given by all the beneficiaries. She has not also consented to it. The mode of distribution proposed by the petitioners should be rejected and in the place her be approved since it came from the deceased’s plan for his family.

12. Parties testified and adopted their modes of distribution, with each justifying their proposals. The land administrator testified on the owner of plot no. 105. They filed submissions thereafter. The petitioner submitted that the deceased left behind 8 widows and beneficiaries. They propose that land parcel number Bungoma/ Municipality /105 and plot no. 3 at Ndengelwa market be shared equally. As per each widow's house. When Emma Nabwire, the land administrator, testified in court, she produced documents for parcel plot no. 105 showing that the allotment was issued to the deceased James Wangila Wamalwa and, therefore the said plot is a part of the estate of the deceased. The petitioner urged the court to order the protestor to account for all the rent she has been drawing from the commercial plots since the demise of the deceased to date and to consider the said rent while distributing the said plot amongst each house.

13. The protestor submitted the purported mode of distribution by the petitioners’ purport to distribute the estate to 35 people, several of whom are not beneficiaries ( see paragraphs 3 (a) & (h). There is no evidence of consent from the beneficiaries of the estate. The deceased left behind 4 wives, Consolata has passed, and Sarah left before the deceased died. The proposal of the petitioners should be rejected as their list includes purchasers from the deceased’s dependents, this is wrong and this alone has vitiated the proposed distribution. The said persons can seek their pieces from the beneficiaries who sold the pieces of land to them. She has dealt with all the properties and has not included strangers. Her mode of distribution should be the acceptable one, and section 66 (a) of the Law of Succession Act also gives her priority as the spouse of the deceased.

Analysis And Determination 14. I have considered the affidavits by the parties. The issues for determination are: what are the assets of the estate of the deceased, who are the beneficiaries of the estate of the deceased, and how should the estate be distributed?What are the assets; According to the petitioners, the assets that comprise the deceased’s estate are East Bukusu/ North Sang'alo 860,865 and 2193, Ndengelwa Market plot no.3, one acre purchased from Pius Juma Macheusi not transferred and Bungoma/Municipality No. 105 measuring 50 by 100 feet. The protestor is in agreement; however, she claims that plot no. 105 is her matrimonial home, and she contributed to the purchase of parcel number 860. During the pendency of this cause, the petitioner’s counsel submitted the petitioners' further documents, which attach the green card of land parcels East Bukusu/ North Sang'alo 860,865 and 2193. As per the certificate of search dated 11. 04. 2014, the proprietor of parcel number 860 was Beatrice Wanjala Wamalwa from 26. 9.2012. The green card shows that parcel number 860 in 1969 belonged to Wekesa Pepela Nabukanda, and on 27. 9.2012 Beatrice Nanjala restricted the land parcel number. There is an entry on 29. 5.2018 that there would be no dealings until the matter involving Beatrice the current owner is resolved. On parcel number 865, the green card shows that the deceased was the owner in 1969 and a restriction was placed on 26. 9.2012 until the succession matter is finalized. The same applies to parcel number 2193. The evidence of the land administrator indicates that plot no. 105 belongs to the deceased, the allotment was given to the deceased on the 14th of June, 1988.

15. The petitioners claim that the deceased had 8 wives and 29 children, the protestor on the other hand, claims that the deceased had 4 widows and 29 children. There is no dispute that the deceased was a polygamous man. Did he have 4 or 8 wives? I have had to go to the genesis of this matter. The affidavit in support of the petition filed by the petitioners indicates that the deceased had 8 wives. The protestor does not acknowledge the 5th to 8th wife and Sarah who she claims left the deceased even before he died. There was no evidence adduced on or by the 5th to 8th wife. The petitioners did not call them, nor have they sworn any affidavits on the same, nor have the persons named as their children sworn any affidavits on the same. Their evidence and or evidence of their children could have helped this court decide on whether the deceased had 8 wives. I am persuaded by the protestor’s evidence that the deceased had 4 wives, that Sarah left before the deceased died, and that Consolata is deceased. The protestor has also stated why she is entitled to plot no. 105 in Bungoma/ Municipality. She developed it whilst married to the deceased, and it is her matrimonial home. The petitioner has indicated that the said plot and the one at Ndengelwa market be shared equally as per each widow's house. I have indicated that I am persuaded by the evidence of the objector that the deceased left 4 widows. Her proposal on the 2 plots is reasonable. The petitioners admit that some of the persons who are included in their mode of distribution are purchasers. It is apparent that the petitioners sold portions of the land parcels before the grant was confirmed. This amounts to intermeddling ( see section 45 of the Law of Succession Act Cap. 160). I find that due to the intermeddling which has been openly admitted by the petitioners, I reject their proposed mode of distribution. The deceased was polygamous; he had 4 wives, but only 2 widows are alive, Margaret and Beatrice the Protestor. Section 40 of the Act provides on the mode of distribution where a person is polygamous it states as follows;Where an intestate has married more than once under any system of law permitting polygamy, his personal and household effects and the residue of the net intestate estate shall, in the first instance, be divided among the houses according to the number of children in each house, but also adding any wife surviving him as an additional unit to the number of children. (2) The distribution of the personal and household effects and the residue of the net intestate estate within each house shall then be in accordance with the rules set out in sections 35 to 38. ”

16. In Douglas Njuguna Muigai & vs John Bosco Maina Kariuki & another [2014]KECA 753 (KLR), the Court of Appeal noted the absurdity of a blind application of section 40(1) of the Law of Succession Act as follows:“Back to section 40(1) of the Law of Succession Act, that provides that a widow shall be considered as a unit alongside the children of the deceased when it comes to the distribution of the deceased’s estate. In this case, Jerioth Wangechi the first wife of the deceased who even participated in the dowry negotiations for her co-wives is equated to the last born child of the 3rd wife of the deceased. Her contribution and support to the deceased as a spouse is not recognized and, in our view, that failure to recognize her contribution is tantamount to discrimination.”It is therefore evident, that, although section 40 of the Law of Succession Act provides a general provision for the distribution of the estate of a polygamous deceased person, the court has discretion to take into account factual circumstances of the particular case that may be relevant in ensuring equitable and fair distribution of the estate”.

17. The protestor's mode of distribution is more in line with the provisions of section 40. I have also taken into account the factual circumstances of this case in ensuring equitable distribution of the estate of the deceased, and I find that it is reasonable and caters to all the beneficiaries. The administrators shall hold the land in trust for any beneficiary who has died during the pendency of this suit. The grant of letters of administration intestate issued on 14/7/2014 is confirmed on the mode of distribution provided by the protestor, as stated in paragraph 9 of this Ruling. Each party is to bear its costs.

DATED, SIGNED, AND DELIVERED AT BUNGOMA THIS 27TH DAY OF FEBRUARY 2025. R. E. OUGOJUDGEIn the presence of;Miss Masakhalia h/b Mr. Bw’onchiri -For the PetitionersMr. Alovi -For the Protestor/ 3rd AdministratorWilkister - C/A