1. By Summons for Confirmation of Grant dated 29 th November 2023, the petitioners pray for the following:
(1) That the Grant of Letters of Administration intestate made to Bibiana Okwara Nalyanya, Anthony Naulikha Nalyanya, Charles Sifuna Nalyanya and Patrick Wafula Nalyanya on 27 th November 2023, be confirmed;
(2) That costs of this application be in the cause.
2. The application is based on the beneficiaries’ affidavits on the mode of distribution of the deceased’s estate. Further, it is contended that the application was not opposed, as no objections were filed within six months of the Grant of Letters of Administration intestate. The application is also supported by the affidavit of Charles Sifuna Nalyanya, sworn on 14th November 2023.
3. The objectors opposed the application. They filed several affidavits, which shall be summarised in the evidence adduced at during the trial court. The application and objection were canvassed by way of viva voce evidence.
THE OBJECTOR’S CASE
OW1 BIBIANA OKWARA
4. Bibiana Okwara OW1 adopted her affidavits filed in court on 12th July 2022 and those dated 25th August 2010, 8 May 2010 and 22nd June 2012 as her evidence in chief. She testified that the deceased was her husband, who had three wives: herself, Susan Nabalayo (a housewife) and Sirila, John Barasa’s mother. They were married under customary law. She lived on the Khasolo farm, namely plots 148 and 50, for 6 months before she was relocated to Mayanga, plots 314 and 315 , after her house was burnt down. She built a home there after her husband purchased land, and she resided there for four years. She had previously worked at Bukuru Farmers Training College.
5. Thereafter, the deceased acquired land at the Naitiri scheme, namely plot no. 125, where she lived, started farming on the land, and undertook other projects with the deceased. However, since the deceased worked at the Ministry of Agriculture, he was not allowed to own land. He thus put the name of their son, Joseph Sitati, in his stead on acquisition of the property. She has resided there to date.
6. OW1 further stated that her co-wife, Sirila, lived in the ancestral home, namely Khasolo/N West Sabot (Manala), together with the other co-wife, Susan Nabalayo. Further, the deceased bought three properties totalling 30 acres at the Nzoia scheme, which were registered in the names of Louis Simiyu, Pius Zukombo and Henry Baraza, the sons of Susan Nabalayo. Her evidence was that the said sons did not buy the land, as they were in school at the time the properties were acquired. Be that as it may, they were not entitled to make a claim on the deceased's property on that basis.
7. OW1 further testified that the proceeds from the land in Naitiri were used to pay school fees for all of the deceased’s children, together with upkeep. She explained that the deceased further acquired properties, namely Namajanja plot no. 319 and Kanduyi plot no. 3, together with her, through loans and other proceeds. Plot no. 319 was developed into structures that generated rental income. In Kanduyi, they sold maize and set up structures as well. She stated that, all the while, her co-wives did not contribute. However, it generated no income. Further, no properties were in rates arrears.
8. OW1 recalled that the deceased was critically ill and had been diagnosed with prostate cancer, which imposed a heavy financial burden. Patrick, Lewis and Pius initially assisted but later stopped. With the support of Anthony and the proceeds from maize, PW1 was able to raise funds for treatment. She added that when the deceased was taken to Mukumu Catholic Hospital, Patrick began to assist financially with the medical bills. She recalled that during his hospital stay, the deceased was mistreated by Patrick, Antony, Beatrice and their mother, who sought to have his assets distributed.
9. While in Naitiri, OW1 recalled that the daughter of Joseph Emmanuel Mukhwana had visited the deceased, who had been alone in hospital for three days. After his discharge, the deceased stayed with OW1 in Naitiri until his death. He was buried at the first wife’s homestead.
10. During the deceased’s memorial, OW1 recalled being treated with hostility by Peter and Nicolas, despite her having cared for them growing up. She accused them of claiming the deceased’s properties to her exclusion. Three days after the deceased’s death, the clan discussed his estate at the Lufu ceremony, but no distribution took place, as, according to her, the deceased did not want his relatives to divide the property. During cross-examination, she was pointed out that Sirila had three children: Judith, Margaret and John. It was also noted that the deceased had another wife, Victoria Mangreta, with whom he had two children: Teresa and Juliana. She recalled that the deceased acquired properties so that his sons could inherit them.
11. In the 1984 letter, OW1 stated that the deceased had acquired land while the children were in school. Louis did not obtain a loan to purchase the land, as it was for farming and inputs. If the deceased had shared out the property, it was done in her absence, as she was unaware. On behalf of her family, OW1 stated that she wanted to remain in Naitiri, as she faced hostility over the property in Khasolo. She proposed that plot no. 315 in Mayanga be given to her children or to herself, as it was vacant at the deceased’s death. Her son Arthur had planted sugarcane there.
12. OW1 further stated that, because Juliana’s grandfather’s land had been purchased for 0W1, it should pass to Juliana. She also expressed a desire to obtain plots 314 and 315, which had been purchased by the deceased. She emphasised that plot Bungoma/Naitiri/125 should remain with her children, with the Khasolo plot to be shared among the other children. Finally, her son Kennedy Mechumo should be given the 5 acres he built on the Naitiri parcel.
13. OW1 recalled that in 2002 it was agreed that all rent collected be deposited into one account. She was collecting rent. However, when the children were asked to open an account, they refused. The rent was her only source of income and was for her own treatment. She could not say how much money had been collected so far.
14. OW1 further stated that her husband was coerced by Susan Nabalayo and members of her family into dividing the property as follows: L.R. No. 150: Susan Nabalayo – 18.5 acres, Bibiana Okwaro – 12 acres, and Barasa Nalyanya – 7 acres; L.R. No. 145 Khasolo to be shared amongst the male children; L.R. No. 319 to be shared with Bibiana Okwara and Susan Nabalayo, with four and one front doors, respectively; and L.R. No. 3 Kanduyi to be taken by Bibiana Okwara. She stated that these pronouncements did not constitute a valid will.
15. OW1 offered to renounce her claim to the Khasolo farm so that Patrick Wafula, Nicolas Mechumo and Charles Sifuna would receive her share, as she believed they were the only ones entitled to benefit from the deceased’s estate. She also proposed that L.R. No. 319, L.R. No. Bungoma/Naitiri/125, L.R. No. Bungoma/Naitiri/124, L.R. No. W. Bukusu/N Myanga/315 and plot no. 3 Kanduyi be given to her and her house. She further proposed that Mayanga plot no. 24 and Bungoma township plot 305 not be distributed, as they were hers.
16. She proposed that Patrick Wafula, Nicholas Mechumo, Charles Sifuna and John Musa Barasa be named as beneficiaries of L.R. No. W. Bukusu/W. Saboti/50 (Khasolo farm), W. Bukusu/W. Saboti/148, L.R. No. Ndivisi/Khalumuli/1503 and L.R. No. Ndivisi/Khalumuli/1502. She produced a letter from Beatrice Waliaula to the deceased, which she claimed had upset the deceased. She added that her husband was happier living with her than with his co-wife, Susan.
17. OW1 did not claim the land in the Webuye plot (Ndivisi/Khalumali/1502) or the Bitovo/Tulienge plot. She claimed only land in Myanga and Naitiri. In summary, she proposed the following distribution: house of OW1 - L.R. No. W. Bukusu/N. Myanga 314 and L.R. No. W. Bukusu/N. Myanga 315 – 14 acres each; L.R. No. Bungoma/Naitiri125 and L.R. No. Bungoma/Naitiri/124 (now Bungoma/Naitiri/448) – 42 acres; house of Susan Nabalayo – L.R. No. Kakamega/Nzoia/23 – 29.16 acres, L.R. No. Kakamega/Nzoia/7 – 29.65 acres, and L.R. No. Kakamega/Nzoia/9 – 30.64 acres; and Khasolo farm, L.R. No. W. Bukusu/W. Siboti/50 - 54 acres. Victoria Nang’undo and Sirira Simuli are to be given half of the Khasolo farm.
OW2 JOSEPH SITATI NALYANYA
18. Joseph Sitati Nalyanya, OW2, relied on his witness statement dated 6th July 2021 and on affidavits filed on 17th February 2022 and 12th July 2022, which he adopted as his evidence in chief. He objected to the petitioners’ proposals on the grounds that they were discriminatory and unfair, as they disinherited some of the deceased’s children. He further argued that they ignored the deceased’s prior settlement of the two wives and the allocation of specific parcels during his lifetime.
19. As the deceased’s second-born son, he testified that the deceased married four wives: Susan Nabalayo Nalyanya, the deceased’s first wife, who bore six sons: Louis Simiyu, Pius Lokorita, Henry Baraza, Patrick, Nicolas and Charles Sifuna Nalianya. The second wife, Sirila Nalyanya, had three children: Judith Makoye, Margaret Meru and John Barasa.
20. He testified that the fourth wife, OW1, his mother, also had six sons, namely: Antony Nalyanya, Joseph Sitati, Kennedy Maguna, David Barasa, Peter Otaya and Ernest Wafula. John Barasa Nalyanya was a son of Frida Nalianya, who divorced the deceased. PW2 recalled that the deceased was a civil servant in the Lands and Agriculture Ministry. While he was away working, all his children grew up together at Naitiri under their mother's care.
21. He acknowledged that his proposals for distribution did not take into account Judith, Margaret, and the 3rd house, and that he could not remember their mother's name. However, he confirmed that she had two children, namely Teresa Nalyanya and Juliana Nalyanya.
22. OW2 conceded that, in his affidavit, he stated that the deceased had two wives. He added that L.R. No. Kakamega/Nzoia/9 was bought by the deceased and should form part of the estate. He confirmed that, according to the search results, L.R. No. Kakamega Nzoia/9 was registered on 25th May 1993 in the name of Wanyama. The farm was bought in 1966 from the Settlement Fund Trustee. He denied that Henry and Pius paid for their properties by loan or otherwise, as they were not employed then. Therefore, the properties should form part of the deceased’s estate.
23. OW2 testified that L.R. No. West Bukusu/North Siboti Siboti/350 and L.R. No. W. Bukusu/North Siboti/148 were ancestral land, which Susan preferred to settle on. He therefore urged that she be given those parcels of land. He denied that it was the deceased's wish for each house to receive a portion of the ancestral land. However, he had no interest in it.
24. Regarding L.R. No. Bungoma Township/319 property, located in the township area, he testified that it is a commercial property and that his mother, OW1, had been collecting rent from the deceased’s death to date. He was unaware that the deceased had wanted the same divided amongst the houses. He was also unaware that the Bungoma Municipal Council intended to sell the property for non-payment of rates, and that Charles Sifuna paid 12,300 for the rates to prevent the sale.
25. Regarding the acquisition, that is, L.R. No. Bungoma Township/319, OW2 relied on letters dated 17th August 1970 and 4th March 1998, which stated that his father intended the property to belong to his mother. Further, his brother Anthony Naulikha paid Kshs. 17,400 towards his father’s debt. His father directed his mother to develop the property and to pay off his debt to the Agricultural Finance Corporation.
26. OW2 recalled that a meeting took place at Mukumu Hospital on 28th November 1998. He added that plot no. 3, another commercial property generating rent, was collected by his mother, as it was developed from her proceeds. He confirmed that the plot at Tulienge market was commercial but empty. He added that he was not aware whether a portion of L.R. No. Ndivisi/Alumali 1502 was gifted to Charles. However, he recalled that a third party once fenced it, saying he had purchased it from Charles. Speaking about L.R. No. Ndivisi/Alumali/1503, he confirmed that the parcel is registered in the names of David Mokoti.
27. OW2 stated that he had a problem with the daughters who had not renounced their interest in the deceased’s estate. It was his view that all married sisters were not entitled to a share of the deceased’s estate. However, he was of the view that those who were not married were entitled to a share. He clarified that he had not made a counter-proposal on the mode of distribution.
28. OW2 continued that his step-brothers acquired the following properties as trustees of the family while the deceased was alive: L.R. No. Kakamega/Nzoia/7 was registered on 14th May 1969 in the name of Pius Naulikha; L.R. No. Kakamega/Nzoia/9 was registered in the name of Henry Wanyonyi on 14th May 1969. It was later subdivided into plots 234 and 235; L.R. No. Kakamega/Nzoia/23 was registered on 16th May 1969 in the name of Louis C. Simiyu. It was closed for subdivision on 4th March 2014, giving rise to parcel numbers 675 and 678.
29. He also stated that parcel no. 125 was registered in his name on 14th May 1969, when he resided there. He adduced an application for consent and transfer in respect of this transaction. He maintained that the property should be given to his mother’s family in accordance with his father’s wishes, and that it remains registered in the name of the Settlement Fund Trustee.
30. Regarding L.R. No. Bungoma Township/319, he recalled that the court directed that the rent be deposited into a joint account held by all administrators. At that point, he became an administrator of the estate. He was not aware whether it had been accounted for.
31. He recalled that during the deceased's lifetime, Henry and Pius were instructed in 1990 to hive off their lands for sale to offset their loans. On 14th May 1969, an irrevocable order for payment of Kshs. 100.00 for the farm was issued on behalf of Naulikha. There was also an authorisation for the Chief Finance Accountant to deduct Kshs. 100.00 on behalf of H. Wanyonyi, effective 14th May 1969. Another irrevocable order for payment of Kshs. 100.00 was issued from Louis Simiyu.
32. OW2 recalled seeing an irrevocable order by the deceased, on his behalf, to deduct Kshs. 100.00, effective 14th May 1969. There was a transfer from himself to the deceased for plot no. 125, Naitiri Settlement Scheme. There was an application for consent and a letter of consent to that effect. He confirmed that the deceased had paid for the parcels belonging to Pius, Henry and himself. The lands were purchased when they were minors. He also stated that Henry and Pius saw the deceased when they failed to pay the debt to the Settlement Scheme.
33. OW2 further stated that 2Ha of L.R. No. Bungoma/Naitiri/124 was purchased by his father from Wanyonyi Matingi. He also acquired L.R. No. Bungoma/Naitiri/448. He urged this court to give the Myanga farm to his mother, as she had previously been settled there before moving to Naitiri. He also urged that Kanduyi plot no. 3 be given to his mother because she developed it from the proceeds of maize she had cultivated, as well as the rent collected from the plot.
34. OW2 also proposed that L.R. Nos. Ndivisi/Khalumuli/1502 and Ndivisi/Khalumuli/1503 be subdivided into two families, with 7 portions of 0.4 ha each, and that each household have four plots of equal size. Lastly, the property in Tulienge Market, plot no. 1, be sold, with the proceeds shared equally between the two houses.
35. In summary, OW2 proposed the following: the following parcels be given to OW1: L.R. No. Bungoma Township/319, L.R. No. Kanduyi plot no. 3, L.R. No. Bungoma/Naitiri 124, L.R. No. Bungoma/Naitiri 125, L.R. No. W. Bukusu/N. Myanga/314, L.R. No. W. Bukusu/N. Myanga/315, and half of L.R. Nos. W. Bukusu/N. Siboti/50 and W. Bukusu/N. Siboti/148. To the house of Susan Nabalayo, OW2 proposed that the following properties be given: L.R. No. Kakamega/Nzoia/7, L.R. No. Kakamega/Nzoia/9, half of L.R. Nos. W. Bukusu/N. Siboti/50 and W. Bukusu/N. Siboti/148, Webuye Khalumuli plot, and Bitobo plot.
OW3 - ANTHONY MAULIKHA NALYANYA
36. OW3, OW1’s first-born son, testified that he was born on 4th August 1962. He confirmed that the deceased, his father, had two wives. He adopted his affidavits sworn on 7th May 2012 and 18th October 2023 as his evidence in chief. He confirmed that Louis Simiyu was his step-brother and the owner of parcel no. 23. Plot no. 7 is registered in the name of Pius Lokorito, while plot no. 9 is registered in the name of the late Henry Barasa. All parcels were purchased, paid for, and belonged to his father in 1966. However, because the deceased worked for the Ministry of Agriculture, he could not register the properties in his name.
37. He also stated that at the time of purchasing plots 7 and 9, Pius and Henry were 22 and 18 years old, respectively. In his view, they therefore lacked the capacity to purchase land. He confirmed that OW2 was 3 years old when the land he resides on was purchased. He lived in parcel no. 125 with all his siblings and his mother while growing up.
38. He recalled that OW1 was given the Khasolo farm. However, a misunderstanding led to the arson of their house. The deceased bought land at the Miyendo farm. His stepmother, Susan, was moved to the Nzoia farm, while plot no. 319 in Bungoma was developed using produce from the Naitiri parcel. Furthermore, his brother OW2 transferred parcel no. 125 from his own name to their late father. It was not a sale and remains registered in his name.
39. OW3 confirmed that plots no. 319 Bungoma and no. 3 Kanduyi are registered in the deceased’s name. POW1 has since been collecting rent for these commercial properties, both before and after the deceased’s lifetime. He recalled the court ordering rent deposits but could not state the amount in the accounts. He was out of the country after opening a Barclays Bank account with OW1. However, since she was unable to run it, it was redundant and closed, so he opted to collect money from the tenants directly.
40. He recalled that his father was unhappy about the repayment of the 3 plots. Pius and Henry came to Naitiri with their wives to request permission to sell part of the land to settle the loan. Part of parcels 7, 9 and 23 were sold to pay the loan.
41. OW3 also testified that the structures on plot No. 3 in Kadunyi were demolished in April 2024. The demolition arose from an ELC dispute and followed the issuance of an injunction against the County Government of Bungoma. He recalled that the beneficiaries had at some point agreed to open a joint account. However, this did not take place because the petitioners failed to appear. Later, they opened account number 8017675, registered at Barclays Bank Eldoret Branch, and deposited Kshs. 4,000.00 on 17th September 2001. Lastly, he was not aware of any application to render accounts.
42. For those reasons, OW3 disagreed with the proposed mode of distribution by the petitioners, as no prior consent was obtained. Further, his siblings did not agree with the proposed mode of distribution, as they did not execute it. He concurred with the averments, dispositions and testimony of OW1, praying that the court share the deceased’s estate in the manner she proposed.
43. Regarding DW3’s statement, he explained that the meeting on 19 January 1999 was a post-burial rite known as Lufu, ordinarily observed by members of the deceased’s family. It was therefore incorrect to say that L.R. No. W. Bukusu/W. Siboti/50 was subdivided by his father. He urged this court not to adopt that contention in its determination.
THE PETITIONERS’ CASE
44. DW1, Charles Nalyanya Situma, relied on a bundle of documents dated 30th November 2023, comprising his affidavit supporting the application for confirmation of the grant, dated 14th November 2023; an affidavit dated 21st March 2022; a further affidavit dated 15th November 2007; a supplementary list of documents dated 7th December 2015; a further list of documents dated 2nd May 2023; and a witness affidavit dated 22nd July 2021, as his evidence in chief.
45. According to DW1, the deceased died intestate on 7th January 1999, after which the four administrators were appointed. The deceased was survived by four houses, namely: 1st house – Susan Nabalayo, married in 1942, settled in L.R. No. W. Bukusu/W. Siboti/50 (Khasolo farm) and had 10 children; 2nd house – Victoria Nang’unda, married in 1948 but separated in 1954, had 2 children, Juliana Nekoye and Teresa Nekesa; 3rd house – Sirira Simuli, married in 1955, divorced in 1978 and had 3 children, Judith Nekoye, Margaret Melu and John Barasa; and 4th house – Bibiana Okwara, married in 1961, initially lived on the Khasolo farm and had 7 children.
46. The deceased died, leaving the following assets: L.R. No. W. Bukusu/W. Siboti/50, L.R. No. W. Bukusu/W. Siboti/148, L.R. No. W. Bukusu/N. Myanga/314, L.R. No. W. Bukusu/N. Myanga/315 (plot no. 3, Tulienge Market), L.R. No. Bungoma/Naitiri/125, L.R. No. Bungoma/Township/319, L.R. No. Ndivisi/Khalumuli/1502 and L.R. No. Ebukusu/Kanduyi/3. He acknowledged that OW1 had been collecting rent on parcels L.R. No. Bungoma/Township/319 and L.R. No. Ebukusu/Kanduyi/73. He proposed that, once accounts were rendered, the proceeds be shared and distribution of all assets be as follows:
ASSETS
NAME OF PARCEL
BENEFICIARIES
1.
L.R. No. West Bukusu/West Siboti/50 - 37.5 acres :
18.5 acres
12 acres
7 acres
1 st house (Susan Nabalayo) divided as follows:
Louis Simiyu – 2 acres, Bibiana Lukorito for Pius Lukorito (deceased) – 2 acres, Imelda Baraza for Henry Barasa (deceased) – 2 acres, Patrick Wafula – 4 acres, Nicolas Mechumo – 4 acres and Charles Sifuna – 4.5 acres.
2 nd house (Bibiana Okwara) divided as follows: Anthony Naulikha, Joseph Sitati, Kennedy Mechumo, David Barasa, Peter Otaya and Ernest Wafula to each get 2 acres.
3 rd house (Sirira Simuli Wamalwa) – 7 acres to be bequeathed to John Barasa
2.
L.R. No. West Bukusu/West Siboti/148 - 14 acres:
10.5 acres
3.5 acres
The 1 st house of Susan Nabalayo to divide the portion into acreage of 3.5 acres each going to Patrick Wafula, Nicolas Mechumo and Charles Sifuna.
To the 3 rd house of Sirira Simuli Wamalwa, all to go to John Baraza
3.
L.R. No. West Bukusu/North Myanga/314 - 14 acres :
12 acres
2 acres
1 st house of Susan Nabalayo to share 4 acres each to Patrick Wafula, Nicolas Mechumo and Charles Sifuna
3 rd house of Sirira Simuli to give the whole share to John Baraza
4.
L.R. No. West Bukusu/North Myanga/315 - 14 acres :
12 acres
2 acres
2 nd house of Bibiana Okwara to divide 2 acres each to Anthony Naulikha, Joseph Sitati, Kennedy Mechumo, David Barasa, Peter Otaya and Ernest Wafula.
To Victoria Nang’unda’s house and bequeathed to Juliana Nekoye.
5.
L.R. No. Bungoma/Naitiri/125 – 37 acres:
9 acres
3 acres
25 acres
1 st house of Susan Nabalayo – 3 acres to each go to Patrick Wafula, Nicolas Mechumo and Charles Sifuna.
3 rd house of Sirira Simuli – the entire acreage to John Baraza.
2 nd house of Bibiana Okwara – five acres each to Anthony Naulikha, Joseph Sitati, Kennedy Mechumo, David Barasa, and Ernest Wafula/Bibiana Okwara.
6.
L.R. No. Bungoma/Naitiri/124 (Bungoma/Naitiri/448 – 5 acres
Kennedy Mechumo
7.
Bungoma Township/319
1 st house of Susan Nabalayo – 4 doors as follows: 1 door each to Mary Tindi, Cornelia Musila, Beatrice Waliaula and Elizabeth Nasimiyu
3 rd house of Sirira Simuli – 1 door shared by John Baraza, Judith Nekoye and Margaret Melu.
8.
L.R. No. Ebukusu/Kanduyi/3
Bibiana Okwara Nalyanya.
9.
L.R. No. West Bukusu/North Myanga/315
1.5 acres to Bungoma County Council, 0.3ha to Nicolas Mechumo of the 1 st house and 0.3ha to Peter Okaya from the 2 nd house.
10.
L.R. No. Ndivisi/Khalumali/1502
Rita and Hassan Wanyonyi - 50 × 100ft purchased from deceased;
Hudson Namiti Wanyonyi - 50 × 100ft purchased from deceased;
Annerose Nakhungu Masafu - 25 × 100ft (1/2) purchased from the deceased at a consideration of Kshs. 66,000.00 and extra ½ plot of 25 × 100ft allocated to her as part of her benefit from the estate;
Charles Sifuna – gifted 80 × 100ft on 19 th May 1997;
Victoria Nang’unda house – Teresa Nekesa 50 × 100ft full plot allocated to her as her benefit from the estate.
Demarcated boundaries to be respected.
11.
Rental income from L.R. No. Bungoma Township/319 and plot no. 3 (East Bukusu/South Kanduyi/3) as from 7 th January 1999 to date
All monies to be collected and deposited to court by the objectors and shared as follows:
House of Susan Nabalayo shared amongst the following 11 beneficiaries – 45.84% of amount collected: Susan Nabalayo (Charles Sifuna on her behalf), Louis Simiyu, Mary Tindi, Pius Lukorito (Bibiana Lukorito on his behalf), Henry Baraza (Imelda Baraza on his behalf), Cornelia Musila, Elizabeth Nasimiyu (Oliver Tambo Mito on her behalf), Patrick Wafula, Beatrice Waliaula, Nicolas Muchemo and Charles N. Sifuna.
House of Victoria Nang’unda – 8.33% for two beneficiaries namely Juliana Nekoye and Teresa Nekesa.
House of Sirira Simuli Wamalwa – 12.5% for three beneficiaries namely Judith Nekoye, Margaret Melu and John Musa Barasa Nalyanya.
House of Bibiana Okwara – 33.33% to eight beneficiaries namely Bibiana Okwara, Anthony Naulikha, Joseph Sitati, Anne Rose Nakhungu Masafu, Kennedy Mechumo, David Barasa, Peter Otaya and Ernest Wafula.
12.
Farming land sharing – 121.5 acres
House of Susan Nabalayo – 50 acres;
House of Victoria Nang’unda – 2 acres;
House of Sirira Simuli Wamalwa – 15.5 acres;
House of Bibiana Okwara – 54 acres.
13.
Tulienge Market/1
Nicolas Nalyanya and Peter Otaya.
14.
West Bukusu/N Nyanga/971 plot no. 23
Patrick Wafula and Anthony Naulikha.
15.
20 cows worth Kshs. 240,000.00
Care of Bibiana Okwara Nalyanya.
16.
370 bags of maize as at 7 th January 1999 worth Kshs. 370,000.00
Sold by Bibiana Okwara Nalyanya.
LIABILITIES
DEBTOR/DEBT/BENEFICIARY
PROPOSAL FOR PAYMENT
1.
Clement Inyasi
To be given 6 cows worth Kshs. 72,000.00 in settlement of the birth of Sirira Simuli’s three children. The said sum to be deducted from the full payment of Kshs. 1,210,000.00. The balance thereof to be paid to settle any other claims.
2.
Wafula Ernest
School fees up to 31 st July 1999 at Bura Teachers College.
3.
Any balances left be shared between the two widows: Susan Nabalayo Nalyanya and Bibiana Okwaro Nalyanya.
47. DW1 added that L.R. No. Kakamega/Nzoia/23, L.R. No. Kakamega/Nzoia/7, L.R. No. Kakamega/Nzoia/9 and Bungoma Township/305 were registered in the names of Louis Simiyu, Pius Lukorito, Henry Barasa Wanyonyi (all his elder brothers) and Bibiana Okwara, respectively. Accordingly, they did not form part of the deceased’s estate.
48. Regarding the objectors’ proposed mode of distribution, DW1 objected to it for the following reasons: it failed to take into account the houses of Victoria Nang’unda and Sirira Simuli; it favoured the house of Bibiana Okwara; it included properties in other people’s names that did not belong to the deceased; it failed to take into account the income generated from commercial properties; and it did not indicate the respective shares of each beneficiary, thereby opening a can of worms.
49. DW1 stated that Judith Nekoye and Margaret Melu renounced their interest in favour of their brother, John Baraza Nalyanya. He suggested that the distribution proposals set out by the objectors were inequitable. Accordingly, this court ought to consider the proposal as presented. He denied the allegations set out by the objectors.
50. DW1 confirmed that, as a minor, he lived with OW1 on the Naitiri plot from 1973 to 1979, until he completed his CPE, together with all the deceased’s children. His mother, Susan, never lived there, but they would stay at her Khasolo farm for the holidays. He explained that his father earned a pension of Kshs 234,000.00 as a government officer, though this information was not captured in his proposed mode of distribution.
51. DW1 confirmed that his father was admitted to Mukumu Mission Hospital from early November to 20th November 1998. He had no issue with his late father’s wishes but did not address the sale of maize. At Khasolo, they grew sugarcane and kept bees. Pius was born in 1946, Louis in 1944, and Henry in 1948. As at 1966, they were not minors, as Henry was 18 years, Pius 20 years, and Louis 22 years. They bought their parcels of land through loans that were ultimately settled. He relied on loan disbursement letters from SFT and receipts as proof of this contention.
52. DW1 maintained that his father developed plot 319 single-handedly in 1973, using family resources and retirement benefits, when DW1 was 5 years old. His father explained his wishes regarding his properties to him in 1981, in the absence of OW1’s children. DW1 further stated that the deceased did not inform him that he was supported by POW1 in the purchase of his assets.
53. He testified that the deceased allocated 12 acres under L.R. No. W. Bukusu/W. Saboti/50 to OW1 on 13th August 1988 and established a boundary. This is the portion she sought to renounce. He had no objection to OW1 and her house having L.R. No. W/Bukusu/N. Myanga 315, measuring 12 acres. However, for L.
[...truncated]
(1) That the Grant of Letters of Administration intestate made to Bibiana Okwara Nalyanya, Anthony Naulikha Nalyanya, Charles Sifuna Nalyanya and Patrick Wafula Nalyanya on 27 th November 2023, be confirmed;
(2) That costs of this application be in the cause.
2. The application is based on the beneficiaries’ affidavits on the mode of distribution of the deceased’s estate. Further, it is contended that the application was not opposed, as no objections were filed within six months of the Grant of Letters of Administration intestate. The application is also supported by the affidavit of Charles Sifuna Nalyanya, sworn on 14th November 2023.
3. The objectors opposed the application. They filed several affidavits, which shall be summarised in the evidence adduced at during the trial court. The application and objection were canvassed by way of viva voce evidence.
THE OBJECTOR’S CASE
OW1 BIBIANA OKWARA
4. Bibiana Okwara OW1 adopted her affidavits filed in court on 12th July 2022 and those dated 25th August 2010, 8 May 2010 and 22nd June 2012 as her evidence in chief. She testified that the deceased was her husband, who had three wives: herself, Susan Nabalayo (a housewife) and Sirila, John Barasa’s mother. They were married under customary law. She lived on the Khasolo farm, namely plots 148 and 50, for 6 months before she was relocated to Mayanga, plots 314 and 315 , after her house was burnt down. She built a home there after her husband purchased land, and she resided there for four years. She had previously worked at Bukuru Farmers Training College.
5. Thereafter, the deceased acquired land at the Naitiri scheme, namely plot no. 125, where she lived, started farming on the land, and undertook other projects with the deceased. However, since the deceased worked at the Ministry of Agriculture, he was not allowed to own land. He thus put the name of their son, Joseph Sitati, in his stead on acquisition of the property. She has resided there to date.
6. OW1 further stated that her co-wife, Sirila, lived in the ancestral home, namely Khasolo/N West Sabot (Manala), together with the other co-wife, Susan Nabalayo. Further, the deceased bought three properties totalling 30 acres at the Nzoia scheme, which were registered in the names of Louis Simiyu, Pius Zukombo and Henry Baraza, the sons of Susan Nabalayo. Her evidence was that the said sons did not buy the land, as they were in school at the time the properties were acquired. Be that as it may, they were not entitled to make a claim on the deceased's property on that basis.
7. OW1 further testified that the proceeds from the land in Naitiri were used to pay school fees for all of the deceased’s children, together with upkeep. She explained that the deceased further acquired properties, namely Namajanja plot no. 319 and Kanduyi plot no. 3, together with her, through loans and other proceeds. Plot no. 319 was developed into structures that generated rental income. In Kanduyi, they sold maize and set up structures as well. She stated that, all the while, her co-wives did not contribute. However, it generated no income. Further, no properties were in rates arrears.
8. OW1 recalled that the deceased was critically ill and had been diagnosed with prostate cancer, which imposed a heavy financial burden. Patrick, Lewis and Pius initially assisted but later stopped. With the support of Anthony and the proceeds from maize, PW1 was able to raise funds for treatment. She added that when the deceased was taken to Mukumu Catholic Hospital, Patrick began to assist financially with the medical bills. She recalled that during his hospital stay, the deceased was mistreated by Patrick, Antony, Beatrice and their mother, who sought to have his assets distributed.
9. While in Naitiri, OW1 recalled that the daughter of Joseph Emmanuel Mukhwana had visited the deceased, who had been alone in hospital for three days. After his discharge, the deceased stayed with OW1 in Naitiri until his death. He was buried at the first wife’s homestead.
10. During the deceased’s memorial, OW1 recalled being treated with hostility by Peter and Nicolas, despite her having cared for them growing up. She accused them of claiming the deceased’s properties to her exclusion. Three days after the deceased’s death, the clan discussed his estate at the Lufu ceremony, but no distribution took place, as, according to her, the deceased did not want his relatives to divide the property. During cross-examination, she was pointed out that Sirila had three children: Judith, Margaret and John. It was also noted that the deceased had another wife, Victoria Mangreta, with whom he had two children: Teresa and Juliana. She recalled that the deceased acquired properties so that his sons could inherit them.
11. In the 1984 letter, OW1 stated that the deceased had acquired land while the children were in school. Louis did not obtain a loan to purchase the land, as it was for farming and inputs. If the deceased had shared out the property, it was done in her absence, as she was unaware. On behalf of her family, OW1 stated that she wanted to remain in Naitiri, as she faced hostility over the property in Khasolo. She proposed that plot no. 315 in Mayanga be given to her children or to herself, as it was vacant at the deceased’s death. Her son Arthur had planted sugarcane there.
12. OW1 further stated that, because Juliana’s grandfather’s land had been purchased for 0W1, it should pass to Juliana. She also expressed a desire to obtain plots 314 and 315, which had been purchased by the deceased. She emphasised that plot Bungoma/Naitiri/125 should remain with her children, with the Khasolo plot to be shared among the other children. Finally, her son Kennedy Mechumo should be given the 5 acres he built on the Naitiri parcel.
13. OW1 recalled that in 2002 it was agreed that all rent collected be deposited into one account. She was collecting rent. However, when the children were asked to open an account, they refused. The rent was her only source of income and was for her own treatment. She could not say how much money had been collected so far.
14. OW1 further stated that her husband was coerced by Susan Nabalayo and members of her family into dividing the property as follows: L.R. No. 150: Susan Nabalayo – 18.5 acres, Bibiana Okwaro – 12 acres, and Barasa Nalyanya – 7 acres; L.R. No. 145 Khasolo to be shared amongst the male children; L.R. No. 319 to be shared with Bibiana Okwara and Susan Nabalayo, with four and one front doors, respectively; and L.R. No. 3 Kanduyi to be taken by Bibiana Okwara. She stated that these pronouncements did not constitute a valid will.
15. OW1 offered to renounce her claim to the Khasolo farm so that Patrick Wafula, Nicolas Mechumo and Charles Sifuna would receive her share, as she believed they were the only ones entitled to benefit from the deceased’s estate. She also proposed that L.R. No. 319, L.R. No. Bungoma/Naitiri/125, L.R. No. Bungoma/Naitiri/124, L.R. No. W. Bukusu/N Myanga/315 and plot no. 3 Kanduyi be given to her and her house. She further proposed that Mayanga plot no. 24 and Bungoma township plot 305 not be distributed, as they were hers.
16. She proposed that Patrick Wafula, Nicholas Mechumo, Charles Sifuna and John Musa Barasa be named as beneficiaries of L.R. No. W. Bukusu/W. Saboti/50 (Khasolo farm), W. Bukusu/W. Saboti/148, L.R. No. Ndivisi/Khalumuli/1503 and L.R. No. Ndivisi/Khalumuli/1502. She produced a letter from Beatrice Waliaula to the deceased, which she claimed had upset the deceased. She added that her husband was happier living with her than with his co-wife, Susan.
17. OW1 did not claim the land in the Webuye plot (Ndivisi/Khalumali/1502) or the Bitovo/Tulienge plot. She claimed only land in Myanga and Naitiri. In summary, she proposed the following distribution: house of OW1 - L.R. No. W. Bukusu/N. Myanga 314 and L.R. No. W. Bukusu/N. Myanga 315 – 14 acres each; L.R. No. Bungoma/Naitiri125 and L.R. No. Bungoma/Naitiri/124 (now Bungoma/Naitiri/448) – 42 acres; house of Susan Nabalayo – L.R. No. Kakamega/Nzoia/23 – 29.16 acres, L.R. No. Kakamega/Nzoia/7 – 29.65 acres, and L.R. No. Kakamega/Nzoia/9 – 30.64 acres; and Khasolo farm, L.R. No. W. Bukusu/W. Siboti/50 - 54 acres. Victoria Nang’undo and Sirira Simuli are to be given half of the Khasolo farm.
OW2 JOSEPH SITATI NALYANYA
18. Joseph Sitati Nalyanya, OW2, relied on his witness statement dated 6th July 2021 and on affidavits filed on 17th February 2022 and 12th July 2022, which he adopted as his evidence in chief. He objected to the petitioners’ proposals on the grounds that they were discriminatory and unfair, as they disinherited some of the deceased’s children. He further argued that they ignored the deceased’s prior settlement of the two wives and the allocation of specific parcels during his lifetime.
19. As the deceased’s second-born son, he testified that the deceased married four wives: Susan Nabalayo Nalyanya, the deceased’s first wife, who bore six sons: Louis Simiyu, Pius Lokorita, Henry Baraza, Patrick, Nicolas and Charles Sifuna Nalianya. The second wife, Sirila Nalyanya, had three children: Judith Makoye, Margaret Meru and John Barasa.
20. He testified that the fourth wife, OW1, his mother, also had six sons, namely: Antony Nalyanya, Joseph Sitati, Kennedy Maguna, David Barasa, Peter Otaya and Ernest Wafula. John Barasa Nalyanya was a son of Frida Nalianya, who divorced the deceased. PW2 recalled that the deceased was a civil servant in the Lands and Agriculture Ministry. While he was away working, all his children grew up together at Naitiri under their mother's care.
21. He acknowledged that his proposals for distribution did not take into account Judith, Margaret, and the 3rd house, and that he could not remember their mother's name. However, he confirmed that she had two children, namely Teresa Nalyanya and Juliana Nalyanya.
22. OW2 conceded that, in his affidavit, he stated that the deceased had two wives. He added that L.R. No. Kakamega/Nzoia/9 was bought by the deceased and should form part of the estate. He confirmed that, according to the search results, L.R. No. Kakamega Nzoia/9 was registered on 25th May 1993 in the name of Wanyama. The farm was bought in 1966 from the Settlement Fund Trustee. He denied that Henry and Pius paid for their properties by loan or otherwise, as they were not employed then. Therefore, the properties should form part of the deceased’s estate.
23. OW2 testified that L.R. No. West Bukusu/North Siboti Siboti/350 and L.R. No. W. Bukusu/North Siboti/148 were ancestral land, which Susan preferred to settle on. He therefore urged that she be given those parcels of land. He denied that it was the deceased's wish for each house to receive a portion of the ancestral land. However, he had no interest in it.
24. Regarding L.R. No. Bungoma Township/319 property, located in the township area, he testified that it is a commercial property and that his mother, OW1, had been collecting rent from the deceased’s death to date. He was unaware that the deceased had wanted the same divided amongst the houses. He was also unaware that the Bungoma Municipal Council intended to sell the property for non-payment of rates, and that Charles Sifuna paid 12,300 for the rates to prevent the sale.
25. Regarding the acquisition, that is, L.R. No. Bungoma Township/319, OW2 relied on letters dated 17th August 1970 and 4th March 1998, which stated that his father intended the property to belong to his mother. Further, his brother Anthony Naulikha paid Kshs. 17,400 towards his father’s debt. His father directed his mother to develop the property and to pay off his debt to the Agricultural Finance Corporation.
26. OW2 recalled that a meeting took place at Mukumu Hospital on 28th November 1998. He added that plot no. 3, another commercial property generating rent, was collected by his mother, as it was developed from her proceeds. He confirmed that the plot at Tulienge market was commercial but empty. He added that he was not aware whether a portion of L.R. No. Ndivisi/Alumali 1502 was gifted to Charles. However, he recalled that a third party once fenced it, saying he had purchased it from Charles. Speaking about L.R. No. Ndivisi/Alumali/1503, he confirmed that the parcel is registered in the names of David Mokoti.
27. OW2 stated that he had a problem with the daughters who had not renounced their interest in the deceased’s estate. It was his view that all married sisters were not entitled to a share of the deceased’s estate. However, he was of the view that those who were not married were entitled to a share. He clarified that he had not made a counter-proposal on the mode of distribution.
28. OW2 continued that his step-brothers acquired the following properties as trustees of the family while the deceased was alive: L.R. No. Kakamega/Nzoia/7 was registered on 14th May 1969 in the name of Pius Naulikha; L.R. No. Kakamega/Nzoia/9 was registered in the name of Henry Wanyonyi on 14th May 1969. It was later subdivided into plots 234 and 235; L.R. No. Kakamega/Nzoia/23 was registered on 16th May 1969 in the name of Louis C. Simiyu. It was closed for subdivision on 4th March 2014, giving rise to parcel numbers 675 and 678.
29. He also stated that parcel no. 125 was registered in his name on 14th May 1969, when he resided there. He adduced an application for consent and transfer in respect of this transaction. He maintained that the property should be given to his mother’s family in accordance with his father’s wishes, and that it remains registered in the name of the Settlement Fund Trustee.
30. Regarding L.R. No. Bungoma Township/319, he recalled that the court directed that the rent be deposited into a joint account held by all administrators. At that point, he became an administrator of the estate. He was not aware whether it had been accounted for.
31. He recalled that during the deceased's lifetime, Henry and Pius were instructed in 1990 to hive off their lands for sale to offset their loans. On 14th May 1969, an irrevocable order for payment of Kshs. 100.00 for the farm was issued on behalf of Naulikha. There was also an authorisation for the Chief Finance Accountant to deduct Kshs. 100.00 on behalf of H. Wanyonyi, effective 14th May 1969. Another irrevocable order for payment of Kshs. 100.00 was issued from Louis Simiyu.
32. OW2 recalled seeing an irrevocable order by the deceased, on his behalf, to deduct Kshs. 100.00, effective 14th May 1969. There was a transfer from himself to the deceased for plot no. 125, Naitiri Settlement Scheme. There was an application for consent and a letter of consent to that effect. He confirmed that the deceased had paid for the parcels belonging to Pius, Henry and himself. The lands were purchased when they were minors. He also stated that Henry and Pius saw the deceased when they failed to pay the debt to the Settlement Scheme.
33. OW2 further stated that 2Ha of L.R. No. Bungoma/Naitiri/124 was purchased by his father from Wanyonyi Matingi. He also acquired L.R. No. Bungoma/Naitiri/448. He urged this court to give the Myanga farm to his mother, as she had previously been settled there before moving to Naitiri. He also urged that Kanduyi plot no. 3 be given to his mother because she developed it from the proceeds of maize she had cultivated, as well as the rent collected from the plot.
34. OW2 also proposed that L.R. Nos. Ndivisi/Khalumuli/1502 and Ndivisi/Khalumuli/1503 be subdivided into two families, with 7 portions of 0.4 ha each, and that each household have four plots of equal size. Lastly, the property in Tulienge Market, plot no. 1, be sold, with the proceeds shared equally between the two houses.
35. In summary, OW2 proposed the following: the following parcels be given to OW1: L.R. No. Bungoma Township/319, L.R. No. Kanduyi plot no. 3, L.R. No. Bungoma/Naitiri 124, L.R. No. Bungoma/Naitiri 125, L.R. No. W. Bukusu/N. Myanga/314, L.R. No. W. Bukusu/N. Myanga/315, and half of L.R. Nos. W. Bukusu/N. Siboti/50 and W. Bukusu/N. Siboti/148. To the house of Susan Nabalayo, OW2 proposed that the following properties be given: L.R. No. Kakamega/Nzoia/7, L.R. No. Kakamega/Nzoia/9, half of L.R. Nos. W. Bukusu/N. Siboti/50 and W. Bukusu/N. Siboti/148, Webuye Khalumuli plot, and Bitobo plot.
OW3 - ANTHONY MAULIKHA NALYANYA
36. OW3, OW1’s first-born son, testified that he was born on 4th August 1962. He confirmed that the deceased, his father, had two wives. He adopted his affidavits sworn on 7th May 2012 and 18th October 2023 as his evidence in chief. He confirmed that Louis Simiyu was his step-brother and the owner of parcel no. 23. Plot no. 7 is registered in the name of Pius Lokorito, while plot no. 9 is registered in the name of the late Henry Barasa. All parcels were purchased, paid for, and belonged to his father in 1966. However, because the deceased worked for the Ministry of Agriculture, he could not register the properties in his name.
37. He also stated that at the time of purchasing plots 7 and 9, Pius and Henry were 22 and 18 years old, respectively. In his view, they therefore lacked the capacity to purchase land. He confirmed that OW2 was 3 years old when the land he resides on was purchased. He lived in parcel no. 125 with all his siblings and his mother while growing up.
38. He recalled that OW1 was given the Khasolo farm. However, a misunderstanding led to the arson of their house. The deceased bought land at the Miyendo farm. His stepmother, Susan, was moved to the Nzoia farm, while plot no. 319 in Bungoma was developed using produce from the Naitiri parcel. Furthermore, his brother OW2 transferred parcel no. 125 from his own name to their late father. It was not a sale and remains registered in his name.
39. OW3 confirmed that plots no. 319 Bungoma and no. 3 Kanduyi are registered in the deceased’s name. POW1 has since been collecting rent for these commercial properties, both before and after the deceased’s lifetime. He recalled the court ordering rent deposits but could not state the amount in the accounts. He was out of the country after opening a Barclays Bank account with OW1. However, since she was unable to run it, it was redundant and closed, so he opted to collect money from the tenants directly.
40. He recalled that his father was unhappy about the repayment of the 3 plots. Pius and Henry came to Naitiri with their wives to request permission to sell part of the land to settle the loan. Part of parcels 7, 9 and 23 were sold to pay the loan.
41. OW3 also testified that the structures on plot No. 3 in Kadunyi were demolished in April 2024. The demolition arose from an ELC dispute and followed the issuance of an injunction against the County Government of Bungoma. He recalled that the beneficiaries had at some point agreed to open a joint account. However, this did not take place because the petitioners failed to appear. Later, they opened account number 8017675, registered at Barclays Bank Eldoret Branch, and deposited Kshs. 4,000.00 on 17th September 2001. Lastly, he was not aware of any application to render accounts.
42. For those reasons, OW3 disagreed with the proposed mode of distribution by the petitioners, as no prior consent was obtained. Further, his siblings did not agree with the proposed mode of distribution, as they did not execute it. He concurred with the averments, dispositions and testimony of OW1, praying that the court share the deceased’s estate in the manner she proposed.
43. Regarding DW3’s statement, he explained that the meeting on 19 January 1999 was a post-burial rite known as Lufu, ordinarily observed by members of the deceased’s family. It was therefore incorrect to say that L.R. No. W. Bukusu/W. Siboti/50 was subdivided by his father. He urged this court not to adopt that contention in its determination.
THE PETITIONERS’ CASE
44. DW1, Charles Nalyanya Situma, relied on a bundle of documents dated 30th November 2023, comprising his affidavit supporting the application for confirmation of the grant, dated 14th November 2023; an affidavit dated 21st March 2022; a further affidavit dated 15th November 2007; a supplementary list of documents dated 7th December 2015; a further list of documents dated 2nd May 2023; and a witness affidavit dated 22nd July 2021, as his evidence in chief.
45. According to DW1, the deceased died intestate on 7th January 1999, after which the four administrators were appointed. The deceased was survived by four houses, namely: 1st house – Susan Nabalayo, married in 1942, settled in L.R. No. W. Bukusu/W. Siboti/50 (Khasolo farm) and had 10 children; 2nd house – Victoria Nang’unda, married in 1948 but separated in 1954, had 2 children, Juliana Nekoye and Teresa Nekesa; 3rd house – Sirira Simuli, married in 1955, divorced in 1978 and had 3 children, Judith Nekoye, Margaret Melu and John Barasa; and 4th house – Bibiana Okwara, married in 1961, initially lived on the Khasolo farm and had 7 children.
46. The deceased died, leaving the following assets: L.R. No. W. Bukusu/W. Siboti/50, L.R. No. W. Bukusu/W. Siboti/148, L.R. No. W. Bukusu/N. Myanga/314, L.R. No. W. Bukusu/N. Myanga/315 (plot no. 3, Tulienge Market), L.R. No. Bungoma/Naitiri/125, L.R. No. Bungoma/Township/319, L.R. No. Ndivisi/Khalumuli/1502 and L.R. No. Ebukusu/Kanduyi/3. He acknowledged that OW1 had been collecting rent on parcels L.R. No. Bungoma/Township/319 and L.R. No. Ebukusu/Kanduyi/73. He proposed that, once accounts were rendered, the proceeds be shared and distribution of all assets be as follows:
ASSETS
NAME OF PARCEL
BENEFICIARIES
1.
L.R. No. West Bukusu/West Siboti/50 - 37.5 acres :
18.5 acres
12 acres
7 acres
1 st house (Susan Nabalayo) divided as follows:
Louis Simiyu – 2 acres, Bibiana Lukorito for Pius Lukorito (deceased) – 2 acres, Imelda Baraza for Henry Barasa (deceased) – 2 acres, Patrick Wafula – 4 acres, Nicolas Mechumo – 4 acres and Charles Sifuna – 4.5 acres.
2 nd house (Bibiana Okwara) divided as follows: Anthony Naulikha, Joseph Sitati, Kennedy Mechumo, David Barasa, Peter Otaya and Ernest Wafula to each get 2 acres.
3 rd house (Sirira Simuli Wamalwa) – 7 acres to be bequeathed to John Barasa
2.
L.R. No. West Bukusu/West Siboti/148 - 14 acres:
10.5 acres
3.5 acres
The 1 st house of Susan Nabalayo to divide the portion into acreage of 3.5 acres each going to Patrick Wafula, Nicolas Mechumo and Charles Sifuna.
To the 3 rd house of Sirira Simuli Wamalwa, all to go to John Baraza
3.
L.R. No. West Bukusu/North Myanga/314 - 14 acres :
12 acres
2 acres
1 st house of Susan Nabalayo to share 4 acres each to Patrick Wafula, Nicolas Mechumo and Charles Sifuna
3 rd house of Sirira Simuli to give the whole share to John Baraza
4.
L.R. No. West Bukusu/North Myanga/315 - 14 acres :
12 acres
2 acres
2 nd house of Bibiana Okwara to divide 2 acres each to Anthony Naulikha, Joseph Sitati, Kennedy Mechumo, David Barasa, Peter Otaya and Ernest Wafula.
To Victoria Nang’unda’s house and bequeathed to Juliana Nekoye.
5.
L.R. No. Bungoma/Naitiri/125 – 37 acres:
9 acres
3 acres
25 acres
1 st house of Susan Nabalayo – 3 acres to each go to Patrick Wafula, Nicolas Mechumo and Charles Sifuna.
3 rd house of Sirira Simuli – the entire acreage to John Baraza.
2 nd house of Bibiana Okwara – five acres each to Anthony Naulikha, Joseph Sitati, Kennedy Mechumo, David Barasa, and Ernest Wafula/Bibiana Okwara.
6.
L.R. No. Bungoma/Naitiri/124 (Bungoma/Naitiri/448 – 5 acres
Kennedy Mechumo
7.
Bungoma Township/319
1 st house of Susan Nabalayo – 4 doors as follows: 1 door each to Mary Tindi, Cornelia Musila, Beatrice Waliaula and Elizabeth Nasimiyu
3 rd house of Sirira Simuli – 1 door shared by John Baraza, Judith Nekoye and Margaret Melu.
8.
L.R. No. Ebukusu/Kanduyi/3
Bibiana Okwara Nalyanya.
9.
L.R. No. West Bukusu/North Myanga/315
1.5 acres to Bungoma County Council, 0.3ha to Nicolas Mechumo of the 1 st house and 0.3ha to Peter Okaya from the 2 nd house.
10.
L.R. No. Ndivisi/Khalumali/1502
Rita and Hassan Wanyonyi - 50 × 100ft purchased from deceased;
Hudson Namiti Wanyonyi - 50 × 100ft purchased from deceased;
Annerose Nakhungu Masafu - 25 × 100ft (1/2) purchased from the deceased at a consideration of Kshs. 66,000.00 and extra ½ plot of 25 × 100ft allocated to her as part of her benefit from the estate;
Charles Sifuna – gifted 80 × 100ft on 19 th May 1997;
Victoria Nang’unda house – Teresa Nekesa 50 × 100ft full plot allocated to her as her benefit from the estate.
Demarcated boundaries to be respected.
11.
Rental income from L.R. No. Bungoma Township/319 and plot no. 3 (East Bukusu/South Kanduyi/3) as from 7 th January 1999 to date
All monies to be collected and deposited to court by the objectors and shared as follows:
House of Susan Nabalayo shared amongst the following 11 beneficiaries – 45.84% of amount collected: Susan Nabalayo (Charles Sifuna on her behalf), Louis Simiyu, Mary Tindi, Pius Lukorito (Bibiana Lukorito on his behalf), Henry Baraza (Imelda Baraza on his behalf), Cornelia Musila, Elizabeth Nasimiyu (Oliver Tambo Mito on her behalf), Patrick Wafula, Beatrice Waliaula, Nicolas Muchemo and Charles N. Sifuna.
House of Victoria Nang’unda – 8.33% for two beneficiaries namely Juliana Nekoye and Teresa Nekesa.
House of Sirira Simuli Wamalwa – 12.5% for three beneficiaries namely Judith Nekoye, Margaret Melu and John Musa Barasa Nalyanya.
House of Bibiana Okwara – 33.33% to eight beneficiaries namely Bibiana Okwara, Anthony Naulikha, Joseph Sitati, Anne Rose Nakhungu Masafu, Kennedy Mechumo, David Barasa, Peter Otaya and Ernest Wafula.
12.
Farming land sharing – 121.5 acres
House of Susan Nabalayo – 50 acres;
House of Victoria Nang’unda – 2 acres;
House of Sirira Simuli Wamalwa – 15.5 acres;
House of Bibiana Okwara – 54 acres.
13.
Tulienge Market/1
Nicolas Nalyanya and Peter Otaya.
14.
West Bukusu/N Nyanga/971 plot no. 23
Patrick Wafula and Anthony Naulikha.
15.
20 cows worth Kshs. 240,000.00
Care of Bibiana Okwara Nalyanya.
16.
370 bags of maize as at 7 th January 1999 worth Kshs. 370,000.00
Sold by Bibiana Okwara Nalyanya.
LIABILITIES
DEBTOR/DEBT/BENEFICIARY
PROPOSAL FOR PAYMENT
1.
Clement Inyasi
To be given 6 cows worth Kshs. 72,000.00 in settlement of the birth of Sirira Simuli’s three children. The said sum to be deducted from the full payment of Kshs. 1,210,000.00. The balance thereof to be paid to settle any other claims.
2.
Wafula Ernest
School fees up to 31 st July 1999 at Bura Teachers College.
3.
Any balances left be shared between the two widows: Susan Nabalayo Nalyanya and Bibiana Okwaro Nalyanya.
47. DW1 added that L.R. No. Kakamega/Nzoia/23, L.R. No. Kakamega/Nzoia/7, L.R. No. Kakamega/Nzoia/9 and Bungoma Township/305 were registered in the names of Louis Simiyu, Pius Lukorito, Henry Barasa Wanyonyi (all his elder brothers) and Bibiana Okwara, respectively. Accordingly, they did not form part of the deceased’s estate.
48. Regarding the objectors’ proposed mode of distribution, DW1 objected to it for the following reasons: it failed to take into account the houses of Victoria Nang’unda and Sirira Simuli; it favoured the house of Bibiana Okwara; it included properties in other people’s names that did not belong to the deceased; it failed to take into account the income generated from commercial properties; and it did not indicate the respective shares of each beneficiary, thereby opening a can of worms.
49. DW1 stated that Judith Nekoye and Margaret Melu renounced their interest in favour of their brother, John Baraza Nalyanya. He suggested that the distribution proposals set out by the objectors were inequitable. Accordingly, this court ought to consider the proposal as presented. He denied the allegations set out by the objectors.
50. DW1 confirmed that, as a minor, he lived with OW1 on the Naitiri plot from 1973 to 1979, until he completed his CPE, together with all the deceased’s children. His mother, Susan, never lived there, but they would stay at her Khasolo farm for the holidays. He explained that his father earned a pension of Kshs 234,000.00 as a government officer, though this information was not captured in his proposed mode of distribution.
51. DW1 confirmed that his father was admitted to Mukumu Mission Hospital from early November to 20th November 1998. He had no issue with his late father’s wishes but did not address the sale of maize. At Khasolo, they grew sugarcane and kept bees. Pius was born in 1946, Louis in 1944, and Henry in 1948. As at 1966, they were not minors, as Henry was 18 years, Pius 20 years, and Louis 22 years. They bought their parcels of land through loans that were ultimately settled. He relied on loan disbursement letters from SFT and receipts as proof of this contention.
52. DW1 maintained that his father developed plot 319 single-handedly in 1973, using family resources and retirement benefits, when DW1 was 5 years old. His father explained his wishes regarding his properties to him in 1981, in the absence of OW1’s children. DW1 further stated that the deceased did not inform him that he was supported by POW1 in the purchase of his assets.
53. He testified that the deceased allocated 12 acres under L.R. No. W. Bukusu/W. Saboti/50 to OW1 on 13th August 1988 and established a boundary. This is the portion she sought to renounce. He had no objection to OW1 and her house having L.R. No. W/Bukusu/N. Myanga 315, measuring 12 acres. However, for L.
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