[2025] KEHC 326 (KLR)

In re Estate of Simeon Wanyonyi Khwatenge (deceased) (Succession Cause 466 of 2009) [2025] KEHC 326 (KLR) (17 January 2025) (Ruling)

Neutral citation: [2025] KEHC 326 (KLR)

Republic of Kenya

In the High Court at Bungoma

Succession Cause 466 of 2009

REA Ougo, J

January 17, 2025

IN THE MATTER OF THE ESTATE OF SIMEON WANYONYI KHWATENGE ( DECEASED)

In the matter of

Joseph Wanambuko Malaba

1st Administrator

Jacob Mwima

2nd Administrator

dishon Wanyonyi

3rd Administrator

Ruling

1. Simeon Wanyonyi Khwatenge, the deceased, died on 31. 5.2008. On 17. 12. 2009 Kennedy Khawtenge Wanyonyi, the petitioner, filed a petition for letters of administration intestate as the son and beneficiary of the deceased. In his supporting affidavit, he lists the following persons surviving the deceased; Mary Wafula ( widow), Joseph Wanamboko ( son), Jacob Mwima (son), Simeon Wanyonyi ( son), Beatrice Mutonyi (daughter), Jane Mutonyi (daughter), Janelah Nafula (daughter), Judith Wakasa (daughter), Kennedy Khwatenge Wanyonyi ( son), Catherine Nambuye Wanyonyi ( daughter), Alice Nasimiyu Wanyonyi (daughter), Jestimore Nakitare Wanyonyi ( son), Peter Wanadbwa Wanyonyi ( son), Elizabeth Muyoka Wanyonyi ( (daughter), Caleb Simiyu Wanyonyi (son) and Daniel Wafula Wanyonyi (son). The deceased left behind the following assets; Land parcel numbers; Kakamega / Mosibridge/ 1162 (1. 84HA), 1161 ( 0. 82HA), 1160 ( 1. 60 HA), 1164 ( 1. 74HA), 1163 (2. 16HA), 1165 (1. 80 HA) and Bungoma/ Soysambu/ 6 ( 8. 4 HA).

2. On 13. 5.2010 a grant of letter of administration intestate was issued to Kennedy Khwatenge Wanyonyi. This grant was revoked by a ruling dated 10. 6.2019.

3. On the 19th of December 2022 a grant of letters of administration was issued to Joseph Wanambuko ( Joseph), Jacob Simeon Wanyonyi (Jacob), and Kennedy Wanyonyi (Kennedy ).

Affidavits 4. On the 1st of February 2023, Kennedy Khwatenge Wanyonyi applied to confirm the grant of letters of administration intestate issued to the three administrators, Joseph, Jacob, and Kennedy. Kennedy filed an affidavit in support dated 1,2. 2023 in which he deposes as follows; land parcel no. Kakamega / Moi Bridge/ 82, later divided into parcels numbers 1160,1161,1162, 1163, 1164, 1165 & 1166 be shared as follows;i.Catherine Nambuye Wanyonyi ,Alice Nasimiyu andElizabeth Muyoka Wanyonyi………. to share 2 acresii.Kennedy Khwatenge Wanyonyi…. 4. 6 acresiii.Jestimore Nakitare Wanyonyi…...4. 6 Acresiv.Kennedy Khwatenge Wanyonyi….4. 6 Acres(To hold in trust for Judith Wanadabwa Wanyonyi)v.Caleb Simiyu Wanyonyi……..4. 6 Acresvi.Daniel Simiyu Wanyonyi…...4. 6 Acresvii.Kennedy Wafula- Buyer………0. 6 AcresThe 2nd house and purchaser Kennedy Wafula, is to be given Land Parcel No. Kakamega/ MoisBridge/82 because they had already shared it on the 1st of March 2008. The 1st house is to be given Land Parcel Bungoma/ Soysambu/6 measuring 15 acres because they had already shared it out on the 8th December 1994. Land Parcel No. Bungoma/ Soysambu/6 measuring 15 acres to be shared as follows;i.Joseph Wanamboko Malaba…..5 Acresii.Jacob Mwima Wanyonyi…..….5 Acresiii.Zablon Wanyonyi……………...5 Acres.

5. Joseph Wanamboko filed an affidavit of protest dated the 24th of March 2023. He deposes as follows; he is one of the sons of the deceased. Kakamega/Moisbridge/996 measuring 10. 03 Ha be shared amongst the two widows Maria Nafula and Judith Wakasa in equal shares of 12 ½ acres each. He represents the 1st house of Mary Nafula and Kennedy represents the house of Judith Wakasa. That plot Kakamega/ Moisbridge/82 does not exist. All subdivisions were done from plot No. Kakamega/ Moisbridge/ 996 and the new numbers are parcel numbers, 1160,1161,1162,1163 and 1164 as per the Ruling of Justice Riechi delivered on 7. 10. 2022.

6. Simeon Mwima Wanyonyi filed an affidavit dated 15. 5 2023. He depones as follows; their deceased father died leaving them with land parcel number Kakamega Moisbridge/82 which he subdivided and it became Kakamega / Moisbridge/996 of which their late father subdivided into parcels numbers; 1160,1161,1162,1163,1164,1165 and 1166 measuring 26 acres. The clan sat on 31. 3.2009 and 26. 3.2010 to share the said land to the children of the deceased. The land is 26 acres. The deceased sold 0. 98 acres from parcel no.996 to Henry Mukhwana Wanakuta leaving behind 25. 01 acres. The buyers are Henry Mukhwana, Goddy Avoka, Antony Ngu’ti, Daniel Shihuma, Alex Juma, Milton Isusa, Turbman M. Wafula, and Gabriel Lusamamba. The purchaser from the late Simeon Wanyonyi Khwatenge one Henry Mkhwana Wanakuta 0. 980 acres, 1. 02 acres for the access, and the 2nd family to get 12 acres out of parcel 996 ( sub-divisions of 1169,1160,1161,1162,1163, 1164,1165 and 1166). The 1st house of Maria Nafula ( deceased) to share the 12 acres as follows;a.Joseph Wanambuko…………....1. 0 acresb.Mwimwa Simeon Wanyonyi..…1. 835 acresc.Dishon Zabulon Wanyonyi…….1. 735 acresd.Philip Nabanga ………………….0. 1 acrese.Jane Mutonyi Wanyonyi………..0. 1 acresf.Concepter Khakasa Wanyonyi…0. 1 acresg.Turbaman M. Wafula……………..3. 6 acresh.Gabriel Lusamamba……………1. 5 acresi.Henry Mukhwana Wanakuta…….1 acresj.Milton Isusa………………………0. 1 acresk.Alex Juma…………………………0. 3 acresl.Antony Ngu’ti……………………0. 3 acresm.Daniel Shiuma…………………..0. 3 acresn.Access Road………………………0. 05 acres

7. The 2nd house of Judith Wakasa ( deceased) is to get 12 acres and to be divided amongst the siblings in the said house. He disputes paragraph 6 of the affidavit of Kennedy as a ruling was made on the same. The deceased bought a parcel of land from Kirwa Arap Kirwa and sold the same to Alex Juma Karani- 11 acres, Mr. Khayani-3 acres, Barasa Omondi-2 acres and Wanyonyi Sikuku- 3 acres before he died. Parcel No. Soysambu / 6 did not make part of the estate of the deceased ( see rulings dated 16. 11. 2021 and 7. 10. 2022. They are left with Kakamega. Moisbridge/996 on sub-divisions 1159,1160,1161,1162,1163,1164,1165 and 1166 measuring 10. 034 Ha which should be divided amongst the 2 houses and the house of Maria Nafula to get12 acres.

8. In a further affidavit dated 26. 5.2023 Kennedy averred as follows in response to the affidavits of Joseph and Simeon follows; land parcel Bungoma/ Soysambu/6 was shared amongst the 3 namely; Joseph, Jacob, and Dishon and was sub-divided into ten (10) portions namely; Bungoma/ Soysambu/1332,1249,1250,1251,1252,1253,1254,1255,1256 and 1257. Parcels nos; 1332, 1251,1252,1253,1254,1255,1256,and 1257 are still in the names of the deceased. Parcels Nos 1249,1250 and 1254 are registered in the names of Moses Namanda, Welamondi and Alex Juam Karani respectively who bought the said parcels of land from Joseph, Jacob and Dishon. Joseph sold his share including the house on 5/9/1999 to one Moses Daniel Nyongesa. He seeks that his mode of distribution be upheld.

9. On 29. 5.2023 Moses Daniel Nyongesa Namanda, Martin Sikuku Sindani, Francis Barasa Omoding and Albert Waswa Machasio filed a joint affidavit of protest and aver as follows; they are liabilities in the estate of the deceased as they have sale agreements and have been using their parcels of land to date. They bought the said parcels of land from the objectors and the petitioner did not include them when he filed the cause. The objectors have been given shares from plot No. 6 Soysambu but they might not transfer the same to them. Land parcel No. 6 Soysambu was sub-divided and it sired new numbers namely; 1249,1251,1252, and 1257, and the same was shared as follows; Moses Daniel Nyongesa-parcel no.1279-0. 8Ha, Martin Sikuku Sindani- parcel no.1251-0. 6Ha, Francis Barasa Omoding-parcel no. 1252-0. 8Ha and Albert Waswa Machasio- parcel no. 1257-1. 2 Ha. They seek to be included as beneficiaries of the estate in particular to parcel No. 6 Soysambu.

10. Jacob Mwima Wanyonyi filed a replying affidavit of protest on 27. 6.2023. He avers as he has the authority from Dishon Wanyonyi to swear the affidavit. They did not know that the deceased sold land to the protestors from parcel no. 6 Soysambu which was later sub-divided into many portions and numbers given to the protestors as follows;i.Moses Daniel Nyongesa Namande - 1249. ii.Martin Sikuku Sindani -1251iii.Francis Barasa Omodingi -1252iv.Albert Waswa Macheso -1257v.Alex Juma Karani -11 acresvi.Mr. Khayani -3 acresvii.Barasa Omondi - 2 acresviii.Wanyonyi Sikuku -3 acres

11. Since 1999 their late father carried out mutation of land parcel No. Bungoma/Soysambu/6. Nobody knew of it as the search certificate showed the name of Simeon Wanyonyi Khwatenge. They the sons and daughters of the late Simeon Wanyonyi Khwatenge succeeded him in a parcel of land No. Kakamega/Moisbridge/996 and not Bungoma/ Soysambu/6. If Bungoma/Soysambu/6 was subdivided into 10 parcels to the protestors among others by the late Simeon Wanyonyi Khwatenge there is no parcel from land parcel no. Bungoma/Soysambu/6 that was ever given to the objectors namely Joseph Wanyonyi Malaba, Dishon Wanyonyi and Jacob Mwima. The objectors have not been given parcel No. Bungoma/ Soysambu/6 or at all and there is no evidence of the parcel ever belonging to them. The protestors entered into an agreement with the late Simeon Wanyonyi Khwatenge who was the owner of the parcel No. Bungoma/ Soysambu/6 which was subdivided into 10 numbers. That since their late father sold the parcels from Bungoma/ Soysambu/1249,1251,1252,1257 the protestors should be in possession .

12. Jacob filed a further replying affidavit dated 4. 8.2023 to the further affidavit of Kennedy Khwatenge dated 27. 6.2023. He avers as follows he still stands by his affidavits dated 27. 6.2023. He caused the beneficiaries to sign the document. The affidavit has the signatures of the following persons;i.Mwima Simeon Wanyonyi..1,835 acres/ ID No. 5662998ii.Dishon Zabulon Wanyonyi…1. 735 acres/ID No.iii.Philip Nabangala …………..0. 1 acres/ ID No. 30568846iv.Concepter Khakasa Wanyonyi..0. 1 acres/ ID No. 401338588v.Henry Mukhwana Wanakuta…1 acres ID No. 6876509vi.Antony Nguti………0. 3 acres ID No. 8025645vii.Daniel Shiuma…….0. 3 acres ID No. 20882992

13. He averred further that they shall share L.R. Kakamega/ Moisbridge/966 and the sub-mission was no. 1159,1160,1161,1162,1163,1164,1165 and 1166. 12 acres.

14. Joseph Wanambuko Malaba filed a replying affidavit dated 10. 7 2023. He avers as follows; Moses Daniel Nyongesa and others did acquire entry into plot No. 6 Soysambu by an eviction order from the Chief’s office Tongaren. The deceased decided to subdivide plot No.6 and gave the buyers transfer documents. That Moses Daniel Nyongesa has been in the land illegally and that land belongs to the deceased and one Kirwa Arap Kirwa as per the ruling dated 10. 6.2019 delivered by Judge Aroni ( as she the was) and ruling delivered by Justice Riechi. None of the parcels of land are registered in his name. An affidavit filed by Joseph dated 1. 9.2023 repeats the contents of the affidavit dated 10. 7.2023. In a replying affidavit dated 11. 9.2023, Joseph proposes that Kakamega Moisbridge/996 has been subdivided into 1160,1161,1162, 1163, 1164, and 1166 and which measures 25 acres be divided in equal portions between the two houses and that LR Bungoma Soysambu/6 is not a part of the deceased’s estate as per the Ruling of Justice Riechi dated 7. 10. 2022.

Evidence 15. Oral evidence was adduced. Kennedy testified and adopted his affidavits dated 1. 2.2023 and 26. 5.2023 as his evidence. During cross-examination, he denied that his father sold the plot in Soysambu, and that it was his brothers who sold the land to the buyers. Simeon Mwima too adopted his affidavits as his evidence. According to him, his father sold the parcel of land in Soysambu. He denied being given 5 acres from Soysambu. They left the land after his father sold it. Joseph adopted the affidavits he filed as his evidence. During cross-examination he told the court that the deceased sold parcel no. 6. He denied selling land to the buyers. Moses Daniel Nyongesa adopted his affidavit as his evidence. During cross-examination, he told the court that he bought 2 acres from Joseph, and the deceased signed the mutation form. Hudson Sirengo Khaemba too adopted his agreement. He told the court that he bought one acre from Joseph, they moved to court and the court recognized the deceased as the owner of the land. The deceased took the trouble to divide the land after Joseph sold it. When the land reverted to the deceased he was given his one acre. Francis Barasa too adopted his affidavit as his evidence. He told the court that he bought 2 acres from Joseph, Wickliff and Dishon and sold their shambas. They as the buyer stay in the shamba. Albert Wasawa too adopted his affidavit as his affidavit as his evidence. He told court that he bought his shamba from Wickliff.

Submissions 16. Parties filed written submissions. I have carefully read and considered the written submissions. Mr. Kassim for the petitioner submitted as follows; the issues for consideration are,i.whether the deceased shared his parcel of land according to the house and later to sons in each houseii.whether Bungoma/ Soysambu/6 belonged to the deceased and its creation of parcels nos. Bungoma/ Soysambu/ 1332:1251:1552:1257 and 1333 form part of the deceased’s estate.iii.Whether the deceased gave land parcel number 6 to the 1st house and Kakamega/ Moisbridge/82 plus its subdivisions to the 2nd house.iv.Whether the deceased shared out his land before his demisev.Whether the protestors are entitled to the shares they occupyvi.Whether the 1st, 2nd petitioners and Dishon Wanyonyi who are sons of the 1st house are entitled to a share in Land Parcel No. Kakamega/ Moisbridge/82 or its resultant subdivisions.vii.Whether the 3rd petitioner plus his brothers from the 2nd house are exclusively entitled to share Parcel No. Kakamega/ Moisbridge/996 or resultant subdivisions or parcel Nos. Kakamega/ Moisbridge/1160-1166.

17. On issue i,ii,iii & iv it was submitted that the deceased shared out his land parcels to his 2 wives and proceeded to share the land to the sons in each house. This is in the evidence of the 1st , 2nd petitioners and the protestors who have been in occupation since 1994. The deceased settled 2nd house in parcel number 996 which was later subdivided into parcels number 1160-1166. This land was distributed to the deceased himself (1160), Kennedy Wanyonyi(1161 & 1163- to hold in trust for Judith Wanyonyi), Caleb Wanyonyi ( 1164), Daniel Wanyonyi (1165) and Kennedy Wafula a buyer (1166). The protestors bought parcel no Bungoma/ Soysambu/6 from the 1st and 2nd petitioner with the consent of their late father and have been occupying the land since 1994. The protestors have a right to inherit the land they bought. Each son from the 1st house had 5 acres which they sold. The sons in the 2nd house got 4. 6 acres. It was submitted that the law does not allow double inheritance. Reliance was made on sections 28 & 42 of the Law of Succession Act (LSA) and the decisions in In Re- Estate of Kihiga Mwathi (Deceased). (2021) eKLR and In Re Estate of the Sandislau Murianki ( Deceased) ( Miscellaneous Succession Cause 49 of 2018) ( 2022) KEHC 423 (KLR) (16 March 2022) . Lastly, it was submitted that previous benefits besotted on any beneficiary shall be taken into account when determining the shares that each beneficiary should receive during the distribution of the estate and that the estate should be distributed as the mode of proposal by the 3rd petitioner.

18. Ms Nanzushi for the 2nd petitioner submitted as follows; there is only one parcel of land for distribution, parcel number Kakamega/ Moisbridge/ 996 which later became parcels number 1159 to 1166 measuring 10. 034(HA, about 25 acres). The deceased did not give any land to his sons from the 1st house from Kakamega/ Soysambu/6. The Batecho Welfare Association divided the land parcel numbers 1159-1166 on 31/3/2009, and 26/3/2010 between the 2 houses, 1st house was to get 10 acres and 2nd house was to get 16 acres, a fact the 3rd petitioner does not dispute. No evidence was adduced that land parcel no. 6 Soysambu belonged to the 2nd petitioner. The deceased subdivided plot no.6 to the purchasers.

19. The 3rd petitioner urged the court to divide parcel no. 966 in line with the provisions of section 25 of LSA.

Analysis and Determination 20. I have considered the affidavits filed, the evidence adduced in court, the written submissions, and the law as provided under the Law of Succession Act Cap 160 ( LSA) . There is no dispute that beneficiaries from 2 houses survived the deceased. As per the petition filed by Kennedy the deceased owned 2 parcels of land namely; Kakamega/ Soysambu/6 and Kakamega Moisbridge/966. The parties in this matter have had a protracted battle since 2009, various applications have been filed and rulings delivered.

21. The issues for determination are; what assets of the deceased are available for distribution and the mode of distribution of the deceased’s asset/s. When Kennedy filed the petition on 17. 12 2009 he listed the following assets Bungoma/ Soysambu /6 and land parcels Kakamega/ Moisbridge/1160 (1. 60HA),1161 ( 0. 82HA),1162( 1. 84HA),1163 (2. 16HA) ,1164(1. 74HA) and 1165(1. 80HA). The certificates of official searches attached all show the latter land parcel numbers all belong to Simeon Wanyonyi Khwatenge, the deceased. In a Ruling dated 16th November 2021 Justice Riechi stated as follows:“While preparing to write this ruling and upon perusing the file, the court finds the following:1. That the deceased Simeon Wanyonyi died on 31st/5/2008. 2.That the deceased had 2 wives Mary Nafula and Judith Wakosa and their respective children.3. That the deceased was the registered owner of land parcel No. Kakamega/ Moi’sBridge/82 measuring 11. 4 ha.4. That he was issued with the title deed on 10/8/20075. On the 4/2/2008 the title deed was closed for sub-division and new numbers 996-998 issued.6. That the title deed for Kakamega/ Moi’s Bridge/ 82 was closed when the deceased was alive, a month before he died on 31/5/2008. 7.That land parcel Kakamega/ Moi’s Bridge/82 does not therefore exist having been closed for sub-division on 4/2/2008 while this cause was filed on 17/2/2009 and it cannot therefore be for the purposes of distribution non-existent property.It is alleged by the petitioner that the deceased was the owner of Bungoma/Soysambu/6 measuring 8. 3 ha. A copy of the green card produced shows the following transaction;30/7/96 Joseph W. Malaba- Transfer30/7/96: Title Deed Issued.This means therefore that the deceased was not at the time of death 30/5/2008, the registered owner of the land.From the above observations , the parties need to clarify the issue in this petition and which the court ought to adjudicate on.As presented in this petition, this court has no power to distribute unless it is shown it belongs to the deceased. If the issue is that the deceased had commenced the distribution when alive but the process had not been completed before he died, the parties should make that clear and file the appropriate application. As such the instant application is dismissed. Each party to bear own costs. “

22. My understanding of this ruling is that land parcel Kakamega/ Moi’s Bridge/82 was not available for distribution and is still is not available, as it sub-division was on 4/2/2008. This Ruling has not been set aside or reviewed. The court with the jurisdiction to determine who owned the said parcel of land and the capacity to transfer the said land is the Environmental and Land Court, (ELC).

23. From the evidence adduced land parcels numbers 1160 to 1166 were a sub-division of land parcel number 996, the certificate of searches shows that the said parcels of land belong to the deceased. The Certificate of search of Kakamega/ Moi’s Bridge /82 dated 17. 2.2010 indicates it is 11. 4Ha and that there was a sub-division done and the title closed on sub-divisions, new numbers were 996-998. Kennedy is adamant that the deceased left behind two houses and that each house was allocated a parcel of land 1st house- Bungoma/ Sosambu/6 and 2nd house – Kakamega/ Moisbridge/ 82 and that parcel number 82 was divided into Kakamega/ Moisbridge/996, 997 and 998, the deceased retained one parcel and sold two. The deceased retained 996 which should be shared by the children of the 2nd house. According to Kennedy, the 1st house had a tussle over the ownership of land parcel number 6 with their deceased father but their father won the case and won back the land and thereafter he shared the land allocated to the 1st house among the three sons in the presence of the clan in 1994 and that the sons sold the land to buyers and had Kirwa Arap Kirwa transfer the land to them, hence his proposed mode of distribution.

24. The protestors testified that parcel number Soysambu 6 was sold by their father and that they are entitled to share parcel number 996 which was subdivided into parcel numbers 1160-1166.

25. On the issue of which assets are available for distribution. although the 1st petitioner insists that parcel number Soysambu was sold by Joseph and not the buyer, I am unable to make a conclusive Ruling on this as this court lacks the jurisdiction to interrogate the said titles or the agreements signed by the parties. This only be done by the ELC Court. Further as stated earlier the ruling by Justice Riechi stated that the said parcel of land is not available for distribution. This ruling has not been set aside of reviewed. The protestors who testified in court claim their shares in land parcel number 6, which per the court ruling is not available for distribution.

26. In my view, therefore, the only parcel available for distribution is parcel number 996 which was sub-divided into parcel number 1160-1166. I agree with the submissions of the 1st petitioner that a beneficiary who has bequeathed a parcel of land whilst the deceased was alive should have that potion taken into account. However, it is not clear whether the deceased sold parcel number 6 after he gave it to the first house or that the deceased sanctioned his sons selling their portions as alleged by the 1st petitioner. This argument was made by the 1st petitioner in his earlier affidavits which I have read. Some of his attachments in the earlier affidavits e.g. the proceedings before the land tribunal are incomplete. I find cannot make a conclusive finding on this hence my view is that the only parcel available for distribution is parcel number 996, which was later subdivided into parcels number 1160-1166.

27. The deceased was a polygamous man. He had 2 wives. Section 38 of the LSA provides as follows; 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.

28. Both wives have died. The only reasonable thing to do is to divide the said parcel of land between the two houses equally as proposed by the objectors Joseph Wambuko, Jacob Mwima and Dishon Wanyonyi. The two houses will share the said parcels numbers 1160- 1166, in equal shares. Each party to bear its own costs.

DATED, SIGNED, AND DELIVERED AT BUNGOMA ON THIS 17TH OF JANUARY 2025. R.E.OUGOJUDGEIn the presence of:For the 1st petitionerFor the 1st, 2nd & 3rd ObjectorsFor the ProtestorsWilkster C/A