[2025] KEHC 7145 (KLR)

In re Estate of Zalon Maruti Mola (Deceased) (Succession Cause 3 of 2017) [2025] KEHC 7145 (KLR) (21 May 2025) (Ruling)

Neutral citation: [2025] KEHC 7145 (KLR)

Republic of Kenya

In the High Court at Bungoma

Succession Cause 3 of 2017

REA Ougo, J

May 21, 2025

N THE MATTER OF THE ESTATE OF ZALON MARUTI MOLA (DECEASED)

In the matter of

Beatrice Nanjala Mola

1st Petitioner

Marcyline Nasimiyu Mola

2nd Petitioner

Caroline Mola Nabukanda

3rd Petitioner

Ruling

1. Zalon Maruti Mola, hereinafter referred to as the deceased, died on 15th May 2015. On 12th March 2020, a grant of letters of administration was issued to Beatrice Nanjala Mola (1st petitioner, hereinafter referred to as Beatrice), Marcyline (2nd petitioner, hereinafter referred to as Marcyline), and Caroline Mola Nabukanda (hereinafter referred to as Caroline). On 3rd June 2022, the 2nd and 3rd Petitioners applied to confirm the grant issued on 12th March 2020.

2. The 1st Petitioner listed the following persons as beneficiaries of the estate of the deceased;1. 1ST HouseI.Caroline Nabukanda MolaIi.Paul Waiula MolaIii.Albert Sitati MolaIv.Hellen Mutonyi MolaV.George Wafula MolaVi.Rose Maruti MolaVii.Nancy Matingi Mola2. 2Nd HouseI.Beatrice Nanjala MolaIi.Joab Silicho OlaIii.Sellah Mutonyi MolaIv.Norah Khaoma Mola3. 3Rd HouseI.Mercyline Nasimiyu MolaIi.Job MolaIii.Patrick W. MolaIv.Nathan Sitati Mola4. Other ChildrenI.Esther Khaoma MolaIi.David Wafula Mola

3. The immovable assets, according to the 1st Petitioner, comprise the following;1. Immovable Properties1. East Bukusu/South Kanduyi/4299(2. 0 HA)2. East Bukusu/South Kanduyi/11229 (0. 15HA)3. Malakisi North & Central Namwela /1094 (1 ¼ Acres)4. Bungoma/Ndalu/170 ( 2. 4.Ha) 6 acres5. Malakisi/North/Central Namwela /47 ( 2 acres)6. Kimilili/Kibingei/300 (3 plots)7. South Bukusu/South Kanduyi/1770 – Mulaha8. Petrol Oil Kenya Limited Lease L.R NO. 7996/202 Webuye9. Plot KWA Felix ( 100x100)10. Kahawa Sukari Ranch- 5 Acres2. Movable Assets1. Bank No. XXXXXXXXXXXXX National Bank of Kenya2. Bank No. XXXXXXXXXXXXX Kenya Commercial BankLiabilitiesLegal Fees

4. The 2nd and 3rd Petitioners listed the following properties:i.East Bukusu/ South Kanduyi/4299( 2. 0HA)ii.East Bukusu/ South Kanduyi/11229 (0. 15HA)iii.Malakisi North & Central Namwela/ 1094 ( 1 ½ HA)iv.Bungoma/ Ndalu/ 170 (2. 4HA) -6 acresv.Malakisi/ North/ Central Namwela/47 ( 2 acres)vi.Kimilili/ Kibingei/ 3001 ( 4 plots)vii.East Bukusu/ South Kanduyi/ 5908 ( Sonoko)viii.East Bukusu/ South Kanduyi/ 8038 Wangunda’six.Petrol station adjacent in Webuyex.Rent Kshs. 14. 4 million.

5. The 1st petitioner’s proposed mode of distribution is as follows:A .Immovable Assets1. 1. Bungoma/ndalu/170 (2. 4.ha) 6 AcresI.Paul Waiula Mola – 1 AcreIi.Albert Sitati Mola - 1 AcreIii.Job Silicho Mola – 1 AcreIv.Patrick W. Mola – 1 AcreV.David Wafula Mola - 1 AcreVi.George W Mola – 1 Acre( Ancestral land meant for boys only )2. 2. Malakisi North & Central Namwela/1094 (1 ¼ Acres )1. Nathan S Mola3. Malakisi/north/central Namwela/47 (2 ½ Acres)I.Job Mola - 2 AcresIi.Beatrice Mola - ½ Acres Under Coffee4. Kimilili/kibingei/3001 ( 3 Plots )I.Albert Sitati Mola – 1 PlotIi.Paul Waliula - 1 PlotIii.David Wafula - 1 Plot(Compensation for those who got one acre each in Ndalu compared to Namwela )5. South Bukusu/south Kanduyi/1770- Mulaha1. George W. Mola6. East Bukusu/south Kanduyi/4299(2. 0ha ) East &Bukusu/south Kanduyi/11229(0. 15 Ha)1. Beatrice Nanjala Mola – 1 Acre2. Mercyline Nasimiyu Mola – 1 Acre3. Albert Sitati Mola - ¼ Acres4. Joab Mola – ¼ AcreThe remaining 4 ½ Acres are to be distributed equally among all the children except Albert Sitati Mola and Joab Mola.Petrol Oil Kenya Limited Lease L.r. No. 7996/202 Webuye TownThe expired lease on plot No. LR 7996/202 Webuye Town to be renewed. A Joint Bank is to be opened by the three administrators for future transactions, and proceeds are to be shared equally among all the beneficiaries.8. Plot Kwa Felix ( 100x100)1. Patrick W. Mola – 50x1002. Joab Mola – 50x1009. Kahawa Sukari Ranch1. paul Waliula Mola – 1 Acre2. Albert Sitati - 1 Acre3. George W. Mola – 1 Acre4. Beatrice Mola – 1 Acre5. Mercyline Mola – 1 Acre(As per the letter dated 18/2/2011 from the deceased to Loice)B.Movable AssetsNoneC.Money In The BankAfter paying the liabilities, the balance is to be shared equally amongst all the beneficiaries.

6. The 2nd and 3rd petitioners proposed mode of distribution is as follows:1. East Bukusu/south Kanduyi/4299 (2. 0ha)1. Paul Waliaula Mola - 1 ½ Acre2. Albert Sitati Mola - 1 ½ Acres3. George Wafula Mola – 1 Acre4. Hellen Mutonyi Maruti - ¼ Acre5. Rose Maruti - ¼ Acre6. Caroline Mola -1/4 Acre7. Nancy Mating’1 Marisa - ¼ Acre2. East Bukusu/south Kanduyi/11229 (0. 15ha) 1 ½ Acres1. David Wafula Mola - 0. 2 Ha2. Nathan Sitati -0. 2 Ha3. Beatrice Nanjala Mola (job Mola)- ¼ Acre4. Mercyline Nasimiyu Mola (joab Mola) – ¼ Acre3. Malakisi North & Central Namwela /1094 (1 ½ (ha)Nathan Sitati - 1 AcreMarcyline Nasimiyu Mola -1/2 Acre4. Bungoma/ndalu/170(2. 4ha) 6 Acres1. Joab Mola - 0. 8 Ha2. Patrick Mola - 0. 8 Ha3. David Mola - 0. 8ha4. George Wafula Maruti – 0. 8ha5. Malakisi/north/central Namwela /47 (2 Acres)Job Mola - 1 ½ AcresBeatrice Nanjala Mola - ½ Acre6 .Kimilili/kibingei/3001 ( 4 Plots)1. Rose Maruti - 50 X 1002. Norah Mola – 50 X1003. Sella Mola - 50 X 1004. Denver Sabwami Pepela - 50 X 1005. Esther Khaoma Maruti - 50 X 1006. East Bukusu/south Kanduyi/5908 (sinoko)1. Sella Mutonyi Mola - 50 X 1002. Norah Khaoma Mola - 50 X 1006. East Bukusu/south Kanduyi/8038 Wang’unda’s1. Paul Waliula Mola - 50 X 1002. Parick Mola - 50 X 1003. Job Mola -50 X 1009. Petrol Station in Webuye ( land the assets be valued ) - Decision be a family asset.

7. Equal distribution of rent Kshs. 14. 4. million among 18 beneficiaries, each getting Kshs. 800,000/-.1. Paula Mola2. Albert Mola3. George Mola4. Carolyne Mola5. Helen Mola6. Rose Maruti7. Nancy Mola8. Denver Sabwami9. David Mola10. Beatrice Mola11. Marcyline Mola12. Job Mola13. Joab Mola14. Esther Khaoma15. Patrick Mola16. Sella Mola17. Nora Mola18. Nathan Mola1. 1St House 9 MembersComprise of Paul Mola, Albert Mola, Carolyne Mola, George Mola, Hellen Maruti, Rose Maruti, Nancy Mola, Denver Sabwami, and David Mola to be sent to Stanbic Bank XXXXXXXXXXXX No. XXXXXXXXXXXX XXXXXXXXXXXX Name Rose Maruti total Kshs. 7,200,000/-.2. 2ND HouseBeatrice Mola, Job Mola, Sela Mola, and Nora Mola are to be given a cheque of Kshs. 3,200,000/- .3. 3Rd HouseMercyline Mola, Joab Mola, Patrick Mola, and Nathan Mola share to be deposited to KCB Bank XXXXXXXXXXXX Name Joab Mola XXXXXXXXXXXX No. XXXXXXXXXXXX total Kshs. 3,200,000/-.4. 4Th HouseEsther Khaoma, XXXXXXXXXXXX Name: Absa Bank, XXXXXXXXXXXX Number: 2041149720, Kshs. 800,000/-.

8. The 2nd and 3rd petitioners depone that they are in the process of selecting a family chairman who will be in charge of land adjacent to the petrol station, who will work on a new lease agreement and communicate to all beneficiaries as listed above. The school fee is to be paid from XXXXXXXXXXXX name Zablon Maruti Mola XXXXXXXXXXXX Number 3094405700 National Bank Of Kenya Bungoma Branch. The court should issue a standing order regarding this matter. All daughters have been allocated ¼ an acre of land each. The widows will be of life interest to their sons, as indicated above. Other assets will be rationalised according to the household subject for individual shares, as listed in the attached list. The petrol station and land adjacent, being a family project, will be valued and similarly rationalised. The family clan supreme council executive has entered this covenant. For any alternative or correction to the above, the three parties must be consulted

9. The parties testified in court. Beatrice Nanjala Mola, the 1st petitioner, adopted her affidavit in support of her mode of distribution. She told the court that she resides in parcel number 4299. She has a house there; the 2nd respondent also has a house on the same parcel of land. She seeks to remain on the said plot with her son Albert. She disagrees with the mode of distribution of the 2nd & 3rd Petitioners. As per their distribution, she has been left out of parcel number 4299, yet she lives there. During cross-examination, she admitted that the beneficiaries did not sign a consent on her mode of distribution. She is a cancer patient. The matrimonial home was built in 1985, and she married the deceased in 1989. The deceased built for her in Ndalu in 1990. The deceased built the house in Sonoko after his retirement. The deceased’s 1st wife left. She retired in 2012. The deceased retired in 1994. She was staying with the deceased when he put up the house in Ndalu. She did not move into the said house when he died. She did not abandon the deceased when he married the 3rd wife. She denied changing the locks on the house to keep the children of the first house away. She moved and stayed with the deceased in Sonoko. She withdrew Kshs. 538,000/- for her treatment. She consulted the other petitioners, and she withdrew the money from the count with George, the brother of the 3rd petitioner. The said sum should not be deducted from her share. She did not withdraw any funds from KCB. During the re-examination, she told the court that the deceased’s 1st wife and deceased were divorced in 1987. After the deceased built Sonoko, she moved in with him, along with her three children. The deceased was buried in Sonoko. The deceased showed Albert a place to build in Sonoko. She was not shown the contribution made by the children of the 1st house towards the said house. School fees have been paid from the deceased’s XXXXXXXXXXXXs. She paid Kshs. 68000/- for fees. She did not abandon the deceased. She does not know the wazees who support the 2nd and 3rd petitioners' mode of distribution.

10. Marcyline Nasimiyu Mola (the 2nd petitioner) adopted her statements dated 3. 6.2024 and 10. 6.2024. She testified as follows: she has three (3) children. She shares a joint mode of distribution with the 3rd petitioner, which she accepts. During cross-examination, she informed the court that she was the deceased’s 3rd wife. Beatrice and Loise were also wives of the deceased. She owns a house in Ekitare in Sonoko, where she found Beatrice. Beatrice resides in Ndalu. The parcel of land where she lives has three houses. She occupies the middle house, while Beatrice lives in the 1st house, and Albert’s house is the 2nd one. Her house was the first to be built. The deceased lived in that house until his death. Beatrice continues to reside in the house she was left in. She does not work, nor do her children. She can vacate the house if asked to do so. She was present during the burial. It is not true that she was brought back by those in the 1st house to assist them in the conflict. Beatrice returned just before the house was completed. The deceased’s body was buried in the 1st wife’s house, mama Loise, in Sonoko. During re-examination, she informed the court that the children of the 1st house had helped her educate her children and that she was not being used by the 1st house to confront Beatrice.

11. . Caroline Mola ( 3rd Petitioner) adopted her statement dated 3. 6.2023 and the further statement dated 10. 6.2024 plus her joint mode of distribution with the 2nd Petitioner. During cross-examination, she told court that they are seven (7) siblings. The 1st and 2nd petitioners stay in Sonoko in parcel number 4299. Albert, too, stays in parcel number 4299. The deceased was buried in the same parcel of land. Her mother was the 1st wife. Her parents divorced in 1987. Her parents had a home in Ekitale in Sonoko. They would visit Ndalu and Sonoko farms. Her parents decided to settle in Sonoko. They bought the land together, and her siblings helped build the house. The 1st petitioner has her house in parcel number 4299. The house in parcel number 4299 was constructed in the early 1990s. Her mother did not live in parcel number 4299. The 1st petitioner moved into the said house after the deceased completed it. The 1st petitioner contributed some iron sheets. Her father had promised that the house would be their family house where the grandchildren would visit and stay. The 1st petitioner and her father lived in the said house until his demise. The 1st petitioner moved into the said house against her father’s will. Beatrice declined to stay in Ndalu. She contributed to the house in Sonoko, and her brother in California took a loan, and her brother in Rome also supported the construction of the house. Beatrice has a house in Ndalu and Namireka. Beatrice should move to her land. The 1st house’s portion is in 4299, their family home. The home will be open to all. No one stays in plot number 11229. It has a banana plantation. Accessing Sonoko is currently difficult. Beatrice does not open the door for them. If she allowed them access, they would let her stay there. Their bone of contention is the mode of distribution. It is fair to deduct her treatment. Beatrice withdrew Kshs.700,000/-. Beatrice did not use the money to pay school fees for the younger siblings. They have been supporting the children by paying the fees. Their clan has a say in the mode of distribution as they were consulted on the same. During the ‘lufu’ ceremony, they did not discuss the parcels of land. During the re-examination, Caroline told the court that her father married the 2nd petitioner after Beatrice refused to come home. Beatrice came home when they were roofing. They got a court order after Beatrice withdrew Kshs. 700,000/-.

12. Japhether Sitati Werunga (Dw3) adopted his statement dated 15. 1.2024. He told the court that he is the Secretary-General of the Bamusomi clan. The clan and the family decided on the mode of distribution; they divided as per each household. Beatrice was present, but she was very uncooperative when they discussed the mode of distribution. They met in the home of Mola. Beatrice was hostile and closed the doors and left. The deceased had three wives, Loise, Beatrice, and Mercy. Other wives were girlfriends. Every wife had been built a home. Beatrice and Sonoko. Beatrice and Mercy should move out of the home. The Sonoko home should go to the 1st house.

13. Parties filed written submissions. The 1st petitioner submitted as follows: she relies on her mode of distribution. The beneficiaries listed in the mode of distribution are the only ones entitled to the deceased's properties. Reliance was placed on Section 29 of the Law of Succession Act, Cap 160 (the Act). The 1st wife cannot be included as a beneficiary via written submissions. The 2nd and 3rd petitioners excluded her, and the 1st petitioner did not cross-examine her. Caroline confirmed that her parents divorced. The 1st petitioner is entitled to her home in East Bukusu/South Kanduyi/4299, which was built by the deceased and where she lived with her husband. The 2nd and 3rd petitioners did not present any evidence to show that the 1st house contributed to the construction of the 1st petitioner's matrimonial home (see Section 107 of the Evidence Act, Cap 80). All the sons of the deceased are entitled to a share of the matrimonial home in Ndalu, situated on Bungoma/Ndalu/170, excluding the petitioners since it is ancestral land. The remaining beneficiaries share the portion adjoining the plots of the matrimonial homes of the 1st and 2nd petitioners, and the proceeds from Petrol Oil Kenya Limited should be distributed equally among all beneficiaries, as well as the funds in the National Bank of Kenya in XXXXXXXXXXXX no. XXXXXXXXXXXX after payment of their liabilities. The allegation that the 1st petitioner withdrew Kshs. 700, 000/- is misconceived. The 1st petitioner obtained a limited grant under Section 54 of the Act and was permitted to withdraw the money. She is a cancer survivor. The 2nd and 3rd petitioners also applied to withdraw school fees, which the court allowed. The legal fees for the Advocate- Client bill of costs in Court Family Misc. Case No. E 003/2024 should be paid as a liability of the estate. Reliance was placed on sections 83 ( c) & (d) of the Act. The 1st petitioner is a cancer patient with no source of income, being the first in line of next of kin with the right to file the petition. Noting she did not exclude any beneficiary, it is only fair for the legal fees to be paid from the estate.

14. The 2nd and 3rd petitioner submitted as follows; they rely on their mode of distribution dated 3. 6.2022. It is clear that the 1st house is the one who gave out their resources that assisted the deceased in constructing the home in land parcel East Bukusu/ South Kanduyi/ 4299, and therefore the estate should be shared as proposed by the 2nd & 3rd petitioners. The 1st petitioner has a matrimonial home in Ndalu. The sum of Kshs. 700,000/- withdrawn by the 1st petitioner should be taken into consideration when the amount is shared. The money withdrawn for school fees was paid directly to the school XXXXXXXXXXXXs. The 1st petitioner came to court exparte when she sought to withdraw the sum of Kshs. 700,000/-. The leasehold in Webuye should be held as a family asset as consented by all parties. The mother of the 3rd petitioner and the deceased had separated by the time of the demise of the deceased, and therefore, she is the wife of the deceased as they had not divorced, and no certificate of divorce was produced in court. Land parcel number East Bukusu/ South Kanduyi/ 4299 will be awarded to the 1st house the 1st petitioner be awarded her matrimonial home in Ndalu, and the 2nd petitioner will put up a home in land parcel East Bukusu/South Kanduyi/11229 where she has been apportioned her share with her children. Reliance was made in the case of Re-estate of the late Joseph Muhika Itungu Succession Cause No. 441 of 2011 (2024) KEHC 2316 [KLR] 1/3/2024 where the court stated that under section 3(1) of the Act, a separated wife is considered a wife and a divorced spouse may make a claim under the family provision in section 26 of the Act for the reasonable provision of the estate section 26 of the Act includes a former wife of wives recognized as such and are protected under section 3(5) of the Act. On the claim by the 1st petitioner over advocates fees, the same should be catered for by each petitioner and should not be imposed on the estate.

Analysis And Determination 15. I have considered the evidence presented by the parties, their affidavits, the rival submissions, and the law as per the Law of Succession Act Cap 160. The issue for determination is the mode of distribution of the deceased's estate. I will start by listing the properties as listed by the petitioners and the documents in support of the said properties, if any ;1 .East Bukusu/South Kanduyi/4299(2. 0 HA), title deed indicates it is 2. 0 HA which is 5 acres.2. East Bukusu/South Kanduyi/11229 (0. 15 HA) ,the title deed states it is 0. 05 HA, equivalent to approximately 0. 125 acres. However, a certificate of search document dated 11th November 2016 indicates the actual area as 0. 15 HA. The acreage specified in the title deed is less than that in the certificate of search. The title deed, in my view, has the correct acreage.3. Malakisi North & Central Namwela /1094 (1 ¼ Acres) has no title deed, petitioners are in agreement it exists.4. Bungoma/Ndalu/170 (2. 4 Ha), 6 acres, has no title deed, it is only mentioned by the 1st petitioner. It is also listed by the 2nd and 3rd petitioners.5. Malakisi/North/Central Namwela /47 ( 2 acres), no title deed, the petitioners are in agreement it exists, but the acreage differs. The 1st petitioner indicates it is 2 ½ acres, and the 2nd & 3rd indicate it is 2 acres.6. Kimilili/Kibingei/3001 (3 plots) no title deed in the names of the deceased. The 1st petitioner attached a sale agreement dated 22nd January 2004 between Bernard Wanjala Simiyu and the deceased, and the deceased was buying 200ft X 100 ft; if divided into 50X 100, they are 4 plots.7. South Bukusu/South Kanduyi/1770 – Mulaha, is listed by the 1st petitioner only. No title deed, no sale agreement, or letter of allocation is provided to show it belongs to the deceased.8. Petrol Oil Kenya Limited, Lease L.R. No. 7996/202, Webuye, petitioners agree that a lease is in existence, no title attached by any of the parties.9. Plot KWA Felix, measuring 100 ft x 100 ft. A sale agreement is attached by the 1st petitioner. The 2nd and 3rd petitioners have not listed it as part of the deceased’s estate.10. Kahawa Sukari Ranch (5 acres) is listed by the 1st petitioner. There is no document to show that it belongs to the deceased. The 1st petitioner has attached a letter, purportedly written by the deceased, to Loice, who is the deceased’s sister. He states in the said letter that the land is six acres, and he was ready to allocate it to the beneficiaries as indicated. The letter suggests the property was purchased in the name of Loice from Nairobi Mwalimu Teachers Sacco.11. The 1st Petitioner has listed two XXXXXXXXXXXXs: XXXXXXXXXXXX No. XXXXXXXXXXXXX at the National Bank of Kenya and XXXXXXXXXXXX No. XXXXXXXXXXXXX at the Kenya Commercial Bank. The 2nd & 3rd petitioners have listed XXXXXXXXXXXX No. 3094405700. 12. East Bukusu/ South Kanduyi/ 5908 (Sinoko) measuring 100ft X 100ft. The 2nd and 3rd petitioners list this parcel of land, but they have not attached a title deed. It is not in the 1st petitioner list.13. East Bukusu/ South Kanduyi/ 8038 Wanguda. This property is listed by the 2nd and 3rd petitioner. It is not in the 1st petitioner list, but she has attached a sale of land agreement between Alfred Wangunda Masaha and the deceased. The deceased was purchasing 3 plots of 50ft X 100ft.

16. . The petitioners generally agree on the beneficiaries of the 1st, 2nd, and 3rd houses, as well as the other children. However, a beneficiary named Denver Sabwami is neither mentioned in the 1st petitioner's document nor in the Chief’s letter dated August 14, 2016. There was no evidence of this beneficiary during the hearing.

17. . I have considered the deceased's assets, as shown in the above paragraph. I will refer to the land parcels using their title numbers. In my view, the only assets available for distribution are land parcel number 4299, measuring 2. 0 HA; and parcel number 11229, measuring 0. 05 HA, which have titles bearing the deceased name and monies in the XXXXXXXXXXXXs left by the deceased in XXXXXXXXXXXX number XXXXXXXXXXXX at National Bank as shown in a letter from the bank that the deceased had an XXXXXXXXXXXX with the said bank.

18. . Parcel numbers 1094, 170, and 47, Lease L.R No. 7996/202 Webuye have no title deeds. None were produced in court. Parcel numbers 3001, 1770, and Plot Kwa Felix, Kahawa Sukari, also lack titles. The 1st petitioner has produced sale agreements, which are not proof of title. The agreements indicate the deceased sought to purchase the said properties. An agreement can be challenged as there was no transfer of the properties to the deceased. The petitioners can move to the Environment and Land Court to have the said properties declared to belong to the deceased so that titles are issued in his name. The documentation attached to each of these properties does not make them part of the estate of the deceased. A succession court will only distribute property that belongs to the deceased and which is clearly shown are in the name of the deceased.

19. The 2nd and 3rd petitioners have submitted that the 1st wife of the deceased should also be regarded as a wife for succession purposes. Section 29 of the Act provides as follows:“For the purposes of this Part, "dependant" means— (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”There is no dispute that the deceased was a polygamous man. He was married to the mother of the 3rd petitioner, and, according to the 3rd petitioner’s evidence, her parents divorced. The 3rd petitioner is, therefore, a former wife of the deceased. The 2nd and 3rd petitioners have submitted that she is also entitled to a share of the deceased's estate. However, the mother of the 3rd petitioner did not feature in the matter during the hearing, nor did she seek to be considered a beneficiary of the deceased’s estate. I will, therefore, not include her as part of the beneficiaries of the deceased’s estate.

20. . Having noted that the parties have included properties in their mode of distribution that do not currently form part of the deceased's estate, I have been faced with a dilemma regarding how to distribute the deceased’s estate. Each petitioner has submitted that their mode of distribution should be considered. The deceased was survived by two widows and 15 children, comprising three houses. Section 40 of the Law of Succession Act Cap.160 provides that;“Where intestate was polygamous(1)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.

21. . Parties have disagreed on a mode of distribution for parcels numbers 4299 and 11229. Therefore, in my view, there is no need for this court to exercise its discretion to establish a mode of distribution that contradicts the equal distribution stated in Section 40 of the Law of Succession Act. Section 40 will apply to the circumstances of this case. The estate of the deceased will be divided according to the number of children in each household, with the widows being counted as additional units (see in the Matter of the Estate of Nelson Kiomoth Mbiti (deceased) HSC No. 169 of 2000).

22. . Concerning legal fees, it is my view that the estate of the deceased should not bear the costs of counsel appointed by the parties themselves. As for the funds withdrawn by the parties, I will not issue any order on this matter, as I find that the parties have failed to provide sufficient evidence to demonstrate the exact amounts each party withdrew. The figures presented were not clearly established, thus preventing this court from ordering that these amounts be deducted from their shares.

23. . Consequently, the deceased’s estate shall be distributed in accordance with Section 40 of the Law of Succession Act. The deceased’s children and surviving spouse 1st petitioner and 2nd petitioner shall have equal share. The estate of the deceased comprises of parcel number East Bukusu/Kanduyi/ 4299 (2. 0HA) and East/ Bukusu/ South Kanduyi/11229 (0. 05HA), the monies held at National Bank of Kenya will be distributed equally among the beneficiaries who comprise seven (7) from the 1st house, four (4) from the 2nd house, four (4) from the 3rd house and two (2) from other children. Parties to bear their own costs.

DATED, SIGNED AND DELIVERED AT BUNGOMA THIS 21 ST DAY OF MAY 2025. R.E.OUGOJUDGEIn the presence of:Mr. Ambutsi For the 1 st PetitionerMiss Wanyama h/b Mr. Bw’Onchiri -For the 2 nd & 3 rd PetitionerWilkister C/ A