REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT BUNGOMA
SUCCESSION CAUSE NO. E004 OF 2023
IN THE MATTER OF THE ESTATE OF ADRIAN WEKESA MAKOKHA (DECEASED)
AND
CHRISPINUS WEKESA MAKOKHA…………………….1ST PETITIONER
FELISTUS NEKESA ODANGA……………………….….2ND PETITIONER
VERSUS
CAMILUS PETER WEKESA………………………………..……OBJECTOR
RULING
Background
1. The deceased herein one Adrian Wekesa Makokha died on 28th September 2000 while domiciled in Kabula within Bungoma County. The deceased was polygamous and had two wives namely Anna Kwena Wekesa, 1st wife and Mary Nasimiyu Makokha, 2nd wife.
2. Anna Kwena Wekesa begot 10 daughters and 4 sons with deceased namely:-
i) Felistus Jacinta Odanga - daughter
ii) Odilia Mshambala - daughter
iii) Gaudencia N Ashitiva - daughter
iv) Generveve Wekesa Makokha – daughter
v) Roselyne W Wekesa – daughter
vi) Gladys K Kituyi – daughter
vii) Lorraine Machio – daughter
viii) Evalyne K Odhiambo – daughter
ix) Regina Wekesa – daughter
x) Salome Odhiambo (deceased) – daughter
xi) Chrispinus Wekesa Makokha – son
xii) Anthony Wekesa (deceased) – son
xiii) Kennedy Wekesa (deceased) – son
xiv) Eugene Wekesa (deceased) - son
3. Mary Nasimiyu Makokha bore the deceased five sons and five daughters, namely:-
i) Stella Wekesa Wasike – daughter
ii) Abscondita Wekesa - daughter
iii) Sabentia Wekesa – daughter
iv) Constance wekesa – daughter
v) Nancy A Wekesa – daughter
vi) Camilus Peter Wekesa – son
vii) Erick Wekesa – son
viii) Denis Wekesa – son
ix) Mathias Wekesa (deceased) – son
x) Charle Wekesa – son
Petition
4. Subsequent to the demise of the deceased, the 1st and the 2nd petitioners petitioned this court for a grant of letters of administration intestate of the estate of the deceased Adrian Wekesa Makokha and on 26th June 2023, a grant of letters of administration of the estate of the deceased was issued to them.
Summons for confirmation of grant
5. On 2nd January 2024 the 1st and the 2nd Petitioners jointly filed Summons for confirmation of grant which was supported by their joint affidavit sworn on even date. They attached a purported consent on the mode of distribution as outlined hereunder :-
L.P NO. W. BUKUSU/S.MATEKA/103
No. Name Id No. Share (Acres)
1. Chrispinus Wekesa Makokha 4371968 10 Acres
2. Felistus Nekesa Odanga 4370224 1.5 Acres
3. Gaudencia Nabwire Ashitiva 0393133 1.5 Acres
4. Odilia Mshambala 0261788 1.5 Acres
5. Genevive Wekesa 1341259 1.5 Acres
6. Gladys Kuchio Kitui 1959573 1.5 Acres
7. Everlyne Kituyi Odhiambo 6661403 1.5 Acres
8. Roselyne Wekesa 9998875 1.5 Acres
9. Lorraine Wekesa 10036282 1.5 Acres
10. Regina Wekesa 21081779 1.5 Acres
L.P NO. W. BUKUSU/S.MATEKA/139
To be shared out amongst the children of the deceased’s 2nd wife namely Mary Nasimiyu.
L.P NO. W. BUKUSU/S.MATEKA/40
To be shared out amongst Anthony Wekesa’s widow; Kennedy Wekesa’s widow for the 1st House; Camilus Peter Wekesa, Maithas Wekesa (late); Erick Wekesa for the 2nd House.
6. In the cause of these proceedings, it emerged that Camilus Peter Wekesa, one of the sons of the deceased from the 2nd House, had filed a similar petition in the subordinate court being Bungoma CMC Succession Cause No E290 of 2023. The said Cause was, on 15th April 2024, by consent of parties, consolidated with this Cause and the petitioner therein was thus appointed as the 3rd administrator herein. A will dated 7th march 1998 was then expunged from the record of this court as it did not meet the criteria for drawing a valid will and parties agreed to treat the estate as intestate. Parties that had pending applications opted to withdraw the same whereafter directions were taken for the matter to proceed by way of viva voce evidence. Parties duly filed their witness statements and lists of documents.
7. The 3rd administrator Camilus Peter Wekesa filed an Affidavit of Protest sworn on 21st June 2024, wherein he averred that that the deceased herein was the registered owner of the following parcels of land:
a. West Bukusu/South Mateka/139.
b. West Bukusu/South Mateka/103.
c. Plot at harambee market to be hived out of North Wanga/Kholera/1012.
d. Plot at Watoya market-Plot No. 1
e. Plot at Kanduyi
f. West Bukusu/South Mateka/40 now West Bukusu/South Mateka/5500, 5501 and 5502.
8. The 3rd administrator’s proposed mode of distribution is as follows :-
a) Parce No. West Bukusu/South Mateka/103 be distributed to the 1st house as follows:
i. Anna Kwena Wekesa(1st widow)-5 acres.
ii. Chrispinus Wekesa Makokha, Felistus Wekesa Odanga and Camilus Peter Wekesa -1 acre.
iii. Chrispinus Wekesa Makokha-10 acres.
iv. Margaret Achieng Wekesa(widow to Anthony Wekesa)-2 acres.
v. Felistus Nekesa Odanga, Gaudencia Nabwire Ashitiva, Odilia Mshambala, Genevive Wekesa, Gladys Kuchio Kituyi, Everlyne Kituyi Odgina Wekesa Odhiambo, Roselyne Wekesa, Lorraine Wekesa and Regina Wekesa-6 acres (to be shared equally amongst them).
b) Parcel No. West Bukusu/South Mateka/139 be distributed to the 2nd house as follows:
i. Mary Nasimiyu Makokha (2nd widow)-1.11 acres to be registered in the name of Stella Nabwile Makokha and Abscondita N. Wekesa to hold in trust for her
ii. Erick Wekesa-0.59 acres
iii. Charles Wekesa-0.59 acres
iv. Denniss Wekesa-0.68 acres
v. Patricia Odhaimbo-6.74 acres
vi. Constance Wekesa -1 acre to be hived out of West Bukusu/South Mateka/40 now West Bukusu/South Mateka/5500
vii. Nancy Auma Makokha-Nil
viii. Stella Nabwile Makokha-Nil
ix. Abscondita N. Wekesa-Nil
x. Sabenzia Nabalayo Wekesa-Nil
xi. Camilus Peter Wekesa-Nil
c) Parcel NO. West Bukusu/South Mateka/40. currently West Bukusu/South Mateka/5500, 5501 and 5502 be distributed as follows:-
i) Camilus Peter Wekesa (5 acres) -West Bukusu/South Mateka/5500 measuring 6 acres and to surrender 1 acre to his sister Constance Khamala Wekesa thus
ii) Constance Khamala Wekesa (1 acre) - West Bukusu/South Mateka/5500
iii) Family of Kennedy Wekesa - West Bukusu/South Mateka/5501.
iv) Margaret Achieng Wekesa, the widow of Anthony Wekesa - West Bukusu/South Mateka/5502 measuring 10 acres.
d) Plot at Kanduyi be shared equally to all his sisters of the 1st House.
e) Plot at Harambee market to be hived out of West Bukusu/South Mateka/1012 and be share equally between himself and the widow of his late brother Anthony Wekesa-Margret Achieng Wekesa
f) Plot at Watoya market- Plot No. 1 to be shared as follows: widow of his late brother Kennedy Wekesa-front 2 doors; Chrispinus Wekesa Makokha-extreme left door; the hind building to Margaret Achieng Wekesa (widow of my late brother Anthony Wekesa).
9. Camilus Peter Wekesa averred that the family of his late brother Anthony Wekesa led by the widow Margaret Achieng Wekesa agreed with his brother Chrispinus Wekesa Makokha to hive 2 acres out of West Bukusu/South Mateka/40 now West Bukusu/South Mateka/5502 in exchange of a share of 2 acres given to his brother Chrispinus Wekesa Makokha in parcel No West Bukusu/ South Mateka /103. (according to the agreement marked CPW1).
10. On 16th July 2024, one Constance Khamala Wekesa from the 2nd House filed an affidavit in protest to the mode of distribution. This prompted a reaction from the 3rd administrator who swore a replying affidavit on 17th august 2024 wherein he deposed that due to the refusal by Constance to be allocated 1 acre in parcel NO West Bukusu/ South Mateka / 5500, the said sister should be allocated 1 acre from parcel NO West Bukusu/South Mateka/139. He averred that a family meeting was held in 3rd May 2024, to discuss the mode of distribution but no agreement was reached and that he has no problem with his sisters from the 1st house getting a share from the estate of the deceased herein.
11. Vide a Motion application dated 12th July 2024 and filed on 16th July 2024, the son of the late Anthony Wekesa, Tobias Namusonge Wekesa, craved for orders that the family of his father the late Anthony Wekesa be apportioned what he termed as it’s rightful and fair share in West Bukusu/South Mateka/103; the current residential compound and 5 acres of the portion stretching to Mucheusi and Wakhuleka farms. Further that the agreement with Chrispinus Wekesa Makokha, 1st Petitioner, of equitably exchanging an equivalent in value and significance, a portion of 2 acres from West Bukusu/South Mateka/5502 be adopted, ratified, adhered to and protected by this court.
12. Vide a Replying Affidavit sworn on 12th February 2024, the 2nd Petitioner herein, averred that the Objector’s mode of distribution as proposed is frivolous, an afterthought and a waste of the Court’s time. She averred that the Objector’s proposed mode of distribution has excluded some of the assets of the estate of the deceased herein and some beneficiaries.
13. In response, the Objector/Protestor swore his Supplementary Affidavit sworn on 8th April 2024, wherein he averred that the mother to the 2nd Petitioner herein, Anna Kwena Wekesa, is not in the ICU as alleged and that the Petitioners never sold any 4 ½ acres to cater to her medical needs rather they have allocated themselves 13½acres. He averred that while they have handed over 10 acres to Chrispinus Wekesa Makokha they excluded the family of the late Anthony Wekesa and that West Bukusu/South Mateka/103 measures 23 acres and not 28 as distributed.
14. In a Further Affidavit to the mode of distribution sworn by the 1st Petitioner herein, on 22nd August 2024, he averred that his late father had the following assets:
a. West Bukusu/South Mateka/103.
b. West Bukusu/South Mateka/139.
c. Kanduyi Plot No. 4.
d. Harambee/Kholera/Plot No. 1012.
e. Watoya Plot No. 1
f. M/V KYG 251
g. Motor Vehicle Registration KTN 420.
15. He proposed that the properties be distributed as follows:
a) West Bukusu/South Mateka/103 :-
i. Ann W. Kwena (widow)-3.5 Acres
ii. Homestead/Compund-1 Acre
iii. Chrispinus Wekesa Makokha-7 Acres
iv. Felistus N. Odanga-0.5 Acres
v. Odilia Mshambala-0.5 Acres
vi. Gaudencia Ashitiva-0.5 Acres
vii. Genevive Wekesa-0.5 Acres
viii. Gladys Kituyi-0.5 Acres
ix. Everylne Odhiambo-0.5 Acres
x. Roselyne Washiali-0.5 Acres
xi. Lorraine Wekesa-0.5 Acres
xii. Regina Wekesa-0.5 Acres
xiii. Tobias Namusonge (To hold in trust for the family of the late Anthony Wekesa Makokha)-7 Acres
xiv. Access road/pathway-0.5 Acres.
16. He averred that the initial land parcel West Bukusu/South Mateka/40 had been utilized by the family of the late Anthony Wekesa Makokha and they have agreed to surrender 3 Acres of the land from West Bukusu/South Mateka/40 to Chrispinus Wekesa Makokha.
17. He averred that the plot at Kanduyi No. 4 to be shared amongst his mother’s 2nd house.
18. He averred that land parcel No. West Bukusu/South Mateka/139 to be shared out amongst the 2nd house.
19. He averred that plot No. 1 at Watoya/Kabula plot be shared amongst three members i.e: Front Doors has 3 doors – 2 doors to the family of Kennedy Wekesa and 1 door to the Chrispinus Wekesa Makokha, and the door behind and the undeveloped portion to be shared amongst Anthony’s family.
20. He averred that the plot at Harambee/Kholera/1012 to be shared amongst Chrispinus Wekesa Makokha and Anthony Wekesa’s family.
21. He averred that the Motor Vehicle Registration No. KYG 251 Matatu Pickup was to be allocated to his late brother Anthony Wekesa but the same was taken by Genevive Wekesa.
22. He averred that the Motor Vehicle Registration Number KTN 420 to be sold and the proceeds to be shared amongst:
i. Felistus N. Odanga
ii. Odilia Mshambala
iii. Gaudencia Ashitiva
iv. Gladys Kituyi
v. Everylne Odhiambo
vi. Roselyne Washiali
vii. Lorraine Wekesa
viii. Regina Wekesa
23. Mildred Apiyo Oleso, swore an Affidavit in Protest to the mode of distribution on 16th July 2024, wherein she averred that she is the daughter of the late Anthony Wekesa and that she is aware that her late father was allocated a share in land parcel number W. Bukusu/S. Mateka/40, currently West Bukusu/South Mateka/5502 which parcel of was registered in the name of her step- mother Margaret Achieng Wekesa by her uncle Camilus Peter Wekesa without regard to the fact that she is the 1st born child of Anthony Wekesa, born by a different mother. She thus craves for a share of a plot to be hived from N. Wanga/Kholera/1012 and a share in Plot No.1. Watoya Market.
24. This cause was referred to mediation and registered as Bungoma Mediation Case No. 005 of 2023. It however failed to bear fruit. This Court then proceeded to set the matter down for hearing and the Summons for Confirmation of Grant was canvassed by way of viva voce evidence.
PROTESTOR’S CASE
25. Protestor-PW1, Chrispinus Wekesa Makokha, testified that he was the 1st Petitioner herein now Protestor and that the deceased herein was his father. At his request this Court adopted his recorded witness statement dated 16th September 2024, and a Further Affidavit on the mode of distribution dated 22nd August 2024, as his evidence in chief. He told this court that he was disassociating himself from the affidavit in reply that he swore jointly with Felistus Nekesa Odanga on 9th May 2024 and the joint affidavit in support of the summons for confirmation of grant sworn on 2nd January 2024. It was his testimony that the deceased herein had during his lifetime settled his sons on his land Parcels Number East.Bukusu/South.Mateka/103 and East.Bukusu/South.Mateka/139. Further that the deceased had inherited ancestral land parcel number East.Bukusu/South. Mateka/40 from his father, the late Leo Makokha Ongaka vide Kakamega High Court P&A Cause NO 289 of 1993. He told the Court that his endeavour as an administrator to have all the beneficiaries consent to the mode of distribution of the estate of the deceased bore no fruits. He proposes that all the daughters of the deceased should get ½ an acre each from land parcel number BUKUSU/S.MATKEKA/103 and the court be pleased to adopt his proposed mode of distribution.
26. On cross-examination, the 1st petitioner turned protestor told the Court that the deceased herein had 10 daughters and 4 sons in the 1st house and that each daughter should get ½ an acre as he is aware that the law in Kenya treats all the children of the deceased equally wherefore the ½ acre will suffice for daughters. He told the Court that he should be apportioned 7 acres and that his late brother Anthony Wekesa should also get 7 acres, Eugene Wekesa and Kennedy Wekesa should also get 7 acres each. According to him, theses shares are from the land parcel number West Bukusu/South Mateka/103. In regard to parcel No. West Bukusu/South Mateka/40, he testified that his brother Camilus Wekesa, the Objector herein, was appointed the administrator to represent their deceased father in Kakamega High Court P&A Cause No 289 of 1993; in the matter of the estate of the late Leo Makokha Ongoka alias Leo Makokha Ongaka and that the objector divided that land into 3 portions whereat Kennedy Wekesa (deceased) and Anthony Wekesa ( deceased) both from the 1st house got 3.5 hectares each while the objector remained with 7 hectares to hold in trust for the 2nd house. He told the Court that when he came up with his proposed mode of distribution he had in mind land parcels West Bukusu/South Mateka/103 and West Bukusu/South Mateka/40 and that the family of the late Anthony Wekesa already received their own share from West Bukusu/South Mateka/40 amounting to 8.75 Acres, and that the same is now duly registered under the name of Margaret Achieng Wekesa(widow to Anthony Wekesa) as parcel No West Bukusu/ South mateka/5502. He told the Court that the family of Kennedy Wekesa received their respective portion from West Bukusu/South Mateka/40 as subdivision No West Bukusu/ South Mateka/ 5501 and had sold the same to three individulas namely Sarah Nawakhosi, Kevin Bully Wakwabubi and Dennis Luhale Simiyu.
27. The protestor told the Court that his brother Anthony Wekesa used to reside in the portion that their father had settled the former and that the latter died before moving out to go and settle on his portion at Parcel No West Bukusu/South Mateka/40. He further told the Court that his father had apportioned him and his late brother Eugene Wekesa 10 acres each in land parcel West Bukusu/South Mateka/103. Further that he intended to settle on 7 acres and let the family of Anthony Wekesa remain in possession of the 3 acres that they currently occupy and in return the family of Anthony was to give him 3 acres from West Bukusu/South Mateka/40 currently known as West Bukus/South Mateka/5502. He proposed that the homestead should have 1 acre while the daughters ought to get ½ acre each, and that his proposal is based on his father’s wishes. He told the Court that land parcel number West Bukusu/South Mateka/103 has 23 ½ acres and the proposal by his 10 sisters to be given the 10 acres that was meant for Eugene will inconvenience other stakeholders. He insisted that as long as his apportionment is not reduced, that of his brothers should also not be affected and that he will not accommodate equal sharing of the estate of the deceased herein among all the beneficiaries. PW1 denied that his proposed mode of distribution was gender biased and premised on male chauvinism.
28. On re-examination, he told the Court that he had initially considered all the family members and that the sizes of land of his late brothers were almost equal, and despite their demise he did not want their respective families to be disadvantaged. He noted that it was his father who distributed the land and that he proposes that each daughter should be given ½ of an acre.
29. On cross-examination by the Court, he told the Court that he had initially considered the total number of the family members as they are 18 in both households, and that he was basing his distribution on the portion of Eugene who died without an heir. He told the Court that his father did not do any subdivision and he understood that it is the duty of this Court to ensure equal distribution of the estate of the deceased, however if the court was to assign him ½ an acre he would consider such distribution as unfair to him.
30. The Protestor’s witness No 2; PW2, Tobias Namusonge Wekesa, testified that he is the son of the late Anthony Wekesa and that the Protester-PW1 herein is his uncle. According to him, the deceased herein had two parcels of land namely West Bukusu/South Mateka/103 and 139, and that he was supposed to inherit two parcels namely West Bukusu/South Mateka/40 and Watoya Plot Kabula/1. Further that the deceased had bought parcel No North Wanga / Kholera/1012 that was pending distribution in Succession proceedings but the vendor later sold the land to a third party.
31. PW2 told the Court that his late grandfather had a plot at Kanduyi but the same was repossessed by the County Government. He maintained that the deceased had a written a will and that parcel No. West Bukusu/South Mateka/103, measuring 23.5 acres, was bequeathed to the Protestor-PW1 and Eugene Wekesa, who were to agree on the mode of sharing given that Anthony Wekesa has constructed a house therein.
32. As regards land parcel number West Bukusu/South Mateka/139, PW2 told the Court that the deceased herein had shared it amongst his second wife Mary Nasimiyu and his two sons namely Mathias and Dennis. He told the Court that the deceased inherited parcel West Bukusu/South Mateka/40 from his father and the same was shared between Anthony Wekesa(deceased) and Kennedy Wekesa(deceased), Charles Mgawane(deceased), Erick Wekesa, and Camilus Peter Wekesa and that it was utilized for farming.
33. It was the testimony of PW2 that the Kanduyi Plot was given to the 2nd House of Mary but the same was taken over by the County Government. He also told the Court that Plot No.1 Kabula Market is still registered in the name of his great grandfather (Leo Makokha) and that it has a commercial building; 3 front doors were shared to Kennedy-2 doors and Eugene-1 door, while the late Anthony got the hind building.
34. PW2 testified that the deceased had distributed his real properties in the year 2000 and that some have been occupied while one is by the river and is not habitable. He told the Court after the death of Eugene a meeting was convened by the brother to the deceased herein one Bilasio Mulongo Makokha and his grandmother Kwena Wekesa was present, and it was decided that his aunties should be given 5 acres jointly and the remaining 5 acres should be left for the late Anthony as he had built therein. He insisted that the daughters of the deceased should be contended with the given 5 acres instead of wanting the whole 10 acres on grounds that they intend to sell some portion to enable them cater for their mother’s medical bill.
35. On cross-examination, PW2 told the Court that he is not the son of the deceased herein and was only before this Court to secure the interests of his late father, Anthony Wekesa, although he conceded that he had not obtained a grant of letters of administrationto the estate of his late father. Whereas he feigned ignorance of the transmission of parcel No West Bukusu/ South Mateka /40 and it’s subdivision to parcel Nos West Bukusu/ South Mateka/5500,5501 and 5502, he told the Court that he heard that his mother, Margaret Achieng Wekesa was registered in one of the sub-divisions and that they are currently using the said West Bukusu/South Mateka/40 for farming purposes and that nobody has ever stopped them.
36. In relation to parcel West Bukusu/South Mateka/103, PW2 told the Court that the same was to be shared between Protestor-PW1 and Eugene(deceased), and that his late father, Anthony Wekesa, had a building thereon and that the said land was never shared out wherefore he disputes the allegation that he is residing on the portion of Protestor-PW1. He testified that they (family of Anthony) had entered into an agreement with the PW1 whereby they were to give him 4 acres in parcel No West Bukusu/ South Mateka /40 in exchange for 7 acres in parcel No West Bukusu/South Mateka/103; 2 acres for the homestead and 5 acres for farming. He maintained that the share belonging to the late Eugene Wekesa was shared in a meeting but failed to tender in evidence any minutes in proof thereof and he maintained that the minute were taken by the daughters of the deceased herein. He told the Court that he wants the daughters of the deceased person to get only ½ of an acre each. He said that in their custom they share land without effecting sub-division and transfer for generations. He said that his father got 8.75 acres from land parcel West Bukusu/South Mateka/40. He told the Court that he is strictly relying on the words of his grandmother who said in the meeting that the daughters of the deceased should get 5 acres jointly.
37. PW3, Patrick Barasa Mucheusi, testified that he was the neighbor of the deceased herein and on his request this Court adopted his recorded statement dated 16th September 2024, as his evidence in Chief. He told the Court that the deceased herein had 2 wives and several children. He told the Court that land parcel number West Bukusu/South Mateka/40 is ancestral. He told the Court that the deceased shared his land parcels numbers West Bukusu/South Mateka/139 and 103 and that land parcel number West Bukusu/South Mateka/40 had a swampy area and was not suitable for human settlement and that the land parcel number West Bukusu/South Mateka/103 and 139 were to be considered in sharing. He told the Court that he is aware that the daughters of the deceased are all married and that the sons had agreed to share the assets of the estate by giving them ½ an acre each so that they too can enjoy the estate of their deceased father.
38. On cross-examination, PW3 said that he was just a neighbor and that he was present during the meeting when it was agreed that the daughters should ger 3 acres. He told the Court that he has no evidence in form of minutes to prove that the meeting occurred or that land parcel number West Bukusu/South Mateka/40 is not habitable.
39. Protestor’s PW4, Ibrahim Bunyolo Masibo, testified that he knows the family of the deceased and that he is the clan chairman of the Awarende clan. At his request this Court adopted his recorded statement dated 16th September 2024, as his evidence in Chief. He told the Court that prior to the demise of the deceased herein, he had in the year 2000 shared his land parcels number West Bukusu/South Mateka/103 and 139 and that he also had another parcel of ancestral land which he was given by his late father Leo Makokha Ong’aka. He told the Court that the land was land parcel West Bukusu/South Mateka/40. He testified that he tried to solve the issue of land as the clan chairman but the parties could not agree and he supported the Protestor’s proposal that the daughters of the deceased be given ½of an acre each from the land parcel West Bukusu/South Mateka/103.
40. On cross-examination, PW4 told the Court that the daughters of the deceased should be given their shares and that the family members of the deceased should negotiate.
2ND PETITIONER’S CASE
41. 2ND PET-W1, Felisters Nekesa Odanga, testified that she is the 1st born daughter of the deceased herein and that Protestor-PW1 and the Objector are her siblings, with Protestor-PW1 hailing from the 1st house and the Objector hailing from the 2nd house. At her request this Court adopted the Replying Affidavit sworn on 9th June 2024, jointly sworn by the Protestor-PW1 and herself, her Supplementary Affidavit sworn on 9th July 2024 and her recorded statement dated 19th September 2024 as her evidence in chief. She also produced her documents as per her list of documents filed in Court and dated 19th September 2023, namely:
(i) Confirmed Grant in Kakamega P&A 289/1993 as 2PEXH.1,
(ii) Green card for land parcel W. Bukusu/S. Mateka/40 as 2PEXH. 2,
(iii) Green card for land parcel W. Bukusu/S. Mateka/5500 as 2PEXH. 3,
(iv) Green card for land parcel W. Bukusu/S. Mateka/5501 as 2PEXH. 4,
(v) Green card for land parcel W. Bukusu/S. Mateka/5502 as 2PEXH. 5.
42. According to the second petitioner, the deceased herein had, prior to his demise, separately settled his widows and children as follows: land parcel W. Bukusu/S. Mateka/103 was given to the widow Anna Kwena Wekesa (3 acres), Chrispinus Wekesa Makokha (10 acres) and Eugene Wekesa (10 acres); land parcel W. Bukusu/S. Mateka/139 was given to Kennedy Wekesa (3.5Ha), Anthony Wekesa (3.5 Ha) and the balance of 7 Ha was to be divided between Camilus Peter Wekesa , Charles Wekesa and Eric Wekesa (as to be agreed amongst themselves); Plot at Kanduyi was given to the 2nd house (was repossessed by the County Government); Plot at Harambee (No. 1012/N. Wanga/Kholera) was given to the sons of the 1st House; Plot Watoya Market (Plot No. 1) the hind buildings was given to Anthony Wekesa, front 2 doors was given to Kennedy Wekesa and extreme left door was given to Eugene Wekesa. That the deceased herein died before transmitting the land parcel W. Bukusu/S. Mateka/40 into his name so the Objector herein substituted the deceased herein in the Succession Cause in Kakamega High Court and had the land transmitted to him as per EXH. 1 and EXH. 2 before this Court.
43. 2PW1 told the Court that her brother the objector transmitted land parcel W. Bukusu/S. Mateka/40 to his name and subsequently subdivided it into 3 subdivisions currently parcels Nos West Bukusu/ South Mateka 5500; in the name of the objector Camilus Peter Wekesa, 5501; in the name of Kennedy Wekesa who in turn sold his portion to 3 purchasers as evident from 2PEX3, 2PEX4 and 2PEX 5 and 5502 in the name of Margaret Achieng Wekesa (widow of Anthony Wekesa).
44. 2PETW1 She told the Court that her late brother Anthony Wekesa died before he could relocate to his portion comprised in then land parcel W. Bukusu/S. Mateka/40 and now land parcel W. Bukusu/S. Mateka/5502, currently occupied by his widow and children. She told the Court that at the time of his demise, the late Anthony Wekesa was occupying a portion comprised in Chrispinus Makokha Wekesa’s share in land parcel W. Bukusu/S. Mateka/103, which they agreed on a mode of swapping between themselves. According to her, the daughters of the deceased herein have no problem with the way the 1st Petitioner and the family of the late Anthony Wekesa have agreed with regards to their respective shares in land parcel W. Bukusu/S. Mateka/103 and land parcel W. Bukusu/S. Mateka/5502. She insisted that if the Prostetor-PW1 has agreed to exchange some portions of land with the family of the late Anthony Wekesa then his share in land parcel W. Bukusu/S. Mateka/103 ought to be reduced by the share to be exchanged.
45. 2PETW1 testified that the daughters of the deceased herein are fully aware that they are equally entitled to a share from their father’s estate and have agreed and proposed that since their brother Eugene Wekesa died without a family, they should be given his 10 acres share in land parcel W. Bukusu/S. Mateka/103. She beseeched this Court to confirm the Grant as per the proposed mode of distribution dated 9th May 2024.
46. On cross-examination, she insisted that the deceased had 15 daughters, ten from the 1st house, with one deceased and 5 from the 2nd house. She told the Court that the daughters of the 2nd house have no issues. She told the Court that the deceased herein gave the 1st house land parcel W. Bukusu/S. Mateka/103 and it was for her mother and 2 brothers. She confirmed that she attended the “Lufu” ceremony upon the demise of her father and that she did not raise any complaint. She insisted that she just wants her share of the inheritance.
47. On re-examination, she told the Court that with regards to land parcel W. Bukusu/S. Mateka/40 the same is being used by the family of the late Anthony (1st House) and Objector (2nd house) and that the late Kennedy Wekesa sold his portion and that the purchasers are utilizing the same. She reiterated that she was not
[...truncated]
IN THE HIGH COURT OF KENYA
AT BUNGOMA
SUCCESSION CAUSE NO. E004 OF 2023
IN THE MATTER OF THE ESTATE OF ADRIAN WEKESA MAKOKHA (DECEASED)
AND
CHRISPINUS WEKESA MAKOKHA…………………….1ST PETITIONER
FELISTUS NEKESA ODANGA……………………….….2ND PETITIONER
VERSUS
CAMILUS PETER WEKESA………………………………..……OBJECTOR
RULING
Background
1. The deceased herein one Adrian Wekesa Makokha died on 28th September 2000 while domiciled in Kabula within Bungoma County. The deceased was polygamous and had two wives namely Anna Kwena Wekesa, 1st wife and Mary Nasimiyu Makokha, 2nd wife.
2. Anna Kwena Wekesa begot 10 daughters and 4 sons with deceased namely:-
i) Felistus Jacinta Odanga - daughter
ii) Odilia Mshambala - daughter
iii) Gaudencia N Ashitiva - daughter
iv) Generveve Wekesa Makokha – daughter
v) Roselyne W Wekesa – daughter
vi) Gladys K Kituyi – daughter
vii) Lorraine Machio – daughter
viii) Evalyne K Odhiambo – daughter
ix) Regina Wekesa – daughter
x) Salome Odhiambo (deceased) – daughter
xi) Chrispinus Wekesa Makokha – son
xii) Anthony Wekesa (deceased) – son
xiii) Kennedy Wekesa (deceased) – son
xiv) Eugene Wekesa (deceased) - son
3. Mary Nasimiyu Makokha bore the deceased five sons and five daughters, namely:-
i) Stella Wekesa Wasike – daughter
ii) Abscondita Wekesa - daughter
iii) Sabentia Wekesa – daughter
iv) Constance wekesa – daughter
v) Nancy A Wekesa – daughter
vi) Camilus Peter Wekesa – son
vii) Erick Wekesa – son
viii) Denis Wekesa – son
ix) Mathias Wekesa (deceased) – son
x) Charle Wekesa – son
Petition
4. Subsequent to the demise of the deceased, the 1st and the 2nd petitioners petitioned this court for a grant of letters of administration intestate of the estate of the deceased Adrian Wekesa Makokha and on 26th June 2023, a grant of letters of administration of the estate of the deceased was issued to them.
Summons for confirmation of grant
5. On 2nd January 2024 the 1st and the 2nd Petitioners jointly filed Summons for confirmation of grant which was supported by their joint affidavit sworn on even date. They attached a purported consent on the mode of distribution as outlined hereunder :-
L.P NO. W. BUKUSU/S.MATEKA/103
No. Name Id No. Share (Acres)
1. Chrispinus Wekesa Makokha 4371968 10 Acres
2. Felistus Nekesa Odanga 4370224 1.5 Acres
3. Gaudencia Nabwire Ashitiva 0393133 1.5 Acres
4. Odilia Mshambala 0261788 1.5 Acres
5. Genevive Wekesa 1341259 1.5 Acres
6. Gladys Kuchio Kitui 1959573 1.5 Acres
7. Everlyne Kituyi Odhiambo 6661403 1.5 Acres
8. Roselyne Wekesa 9998875 1.5 Acres
9. Lorraine Wekesa 10036282 1.5 Acres
10. Regina Wekesa 21081779 1.5 Acres
L.P NO. W. BUKUSU/S.MATEKA/139
To be shared out amongst the children of the deceased’s 2nd wife namely Mary Nasimiyu.
L.P NO. W. BUKUSU/S.MATEKA/40
To be shared out amongst Anthony Wekesa’s widow; Kennedy Wekesa’s widow for the 1st House; Camilus Peter Wekesa, Maithas Wekesa (late); Erick Wekesa for the 2nd House.
6. In the cause of these proceedings, it emerged that Camilus Peter Wekesa, one of the sons of the deceased from the 2nd House, had filed a similar petition in the subordinate court being Bungoma CMC Succession Cause No E290 of 2023. The said Cause was, on 15th April 2024, by consent of parties, consolidated with this Cause and the petitioner therein was thus appointed as the 3rd administrator herein. A will dated 7th march 1998 was then expunged from the record of this court as it did not meet the criteria for drawing a valid will and parties agreed to treat the estate as intestate. Parties that had pending applications opted to withdraw the same whereafter directions were taken for the matter to proceed by way of viva voce evidence. Parties duly filed their witness statements and lists of documents.
7. The 3rd administrator Camilus Peter Wekesa filed an Affidavit of Protest sworn on 21st June 2024, wherein he averred that that the deceased herein was the registered owner of the following parcels of land:
a. West Bukusu/South Mateka/139.
b. West Bukusu/South Mateka/103.
c. Plot at harambee market to be hived out of North Wanga/Kholera/1012.
d. Plot at Watoya market-Plot No. 1
e. Plot at Kanduyi
f. West Bukusu/South Mateka/40 now West Bukusu/South Mateka/5500, 5501 and 5502.
8. The 3rd administrator’s proposed mode of distribution is as follows :-
a) Parce No. West Bukusu/South Mateka/103 be distributed to the 1st house as follows:
i. Anna Kwena Wekesa(1st widow)-5 acres.
ii. Chrispinus Wekesa Makokha, Felistus Wekesa Odanga and Camilus Peter Wekesa -1 acre.
iii. Chrispinus Wekesa Makokha-10 acres.
iv. Margaret Achieng Wekesa(widow to Anthony Wekesa)-2 acres.
v. Felistus Nekesa Odanga, Gaudencia Nabwire Ashitiva, Odilia Mshambala, Genevive Wekesa, Gladys Kuchio Kituyi, Everlyne Kituyi Odgina Wekesa Odhiambo, Roselyne Wekesa, Lorraine Wekesa and Regina Wekesa-6 acres (to be shared equally amongst them).
b) Parcel No. West Bukusu/South Mateka/139 be distributed to the 2nd house as follows:
i. Mary Nasimiyu Makokha (2nd widow)-1.11 acres to be registered in the name of Stella Nabwile Makokha and Abscondita N. Wekesa to hold in trust for her
ii. Erick Wekesa-0.59 acres
iii. Charles Wekesa-0.59 acres
iv. Denniss Wekesa-0.68 acres
v. Patricia Odhaimbo-6.74 acres
vi. Constance Wekesa -1 acre to be hived out of West Bukusu/South Mateka/40 now West Bukusu/South Mateka/5500
vii. Nancy Auma Makokha-Nil
viii. Stella Nabwile Makokha-Nil
ix. Abscondita N. Wekesa-Nil
x. Sabenzia Nabalayo Wekesa-Nil
xi. Camilus Peter Wekesa-Nil
c) Parcel NO. West Bukusu/South Mateka/40. currently West Bukusu/South Mateka/5500, 5501 and 5502 be distributed as follows:-
i) Camilus Peter Wekesa (5 acres) -West Bukusu/South Mateka/5500 measuring 6 acres and to surrender 1 acre to his sister Constance Khamala Wekesa thus
ii) Constance Khamala Wekesa (1 acre) - West Bukusu/South Mateka/5500
iii) Family of Kennedy Wekesa - West Bukusu/South Mateka/5501.
iv) Margaret Achieng Wekesa, the widow of Anthony Wekesa - West Bukusu/South Mateka/5502 measuring 10 acres.
d) Plot at Kanduyi be shared equally to all his sisters of the 1st House.
e) Plot at Harambee market to be hived out of West Bukusu/South Mateka/1012 and be share equally between himself and the widow of his late brother Anthony Wekesa-Margret Achieng Wekesa
f) Plot at Watoya market- Plot No. 1 to be shared as follows: widow of his late brother Kennedy Wekesa-front 2 doors; Chrispinus Wekesa Makokha-extreme left door; the hind building to Margaret Achieng Wekesa (widow of my late brother Anthony Wekesa).
9. Camilus Peter Wekesa averred that the family of his late brother Anthony Wekesa led by the widow Margaret Achieng Wekesa agreed with his brother Chrispinus Wekesa Makokha to hive 2 acres out of West Bukusu/South Mateka/40 now West Bukusu/South Mateka/5502 in exchange of a share of 2 acres given to his brother Chrispinus Wekesa Makokha in parcel No West Bukusu/ South Mateka /103. (according to the agreement marked CPW1).
10. On 16th July 2024, one Constance Khamala Wekesa from the 2nd House filed an affidavit in protest to the mode of distribution. This prompted a reaction from the 3rd administrator who swore a replying affidavit on 17th august 2024 wherein he deposed that due to the refusal by Constance to be allocated 1 acre in parcel NO West Bukusu/ South Mateka / 5500, the said sister should be allocated 1 acre from parcel NO West Bukusu/South Mateka/139. He averred that a family meeting was held in 3rd May 2024, to discuss the mode of distribution but no agreement was reached and that he has no problem with his sisters from the 1st house getting a share from the estate of the deceased herein.
11. Vide a Motion application dated 12th July 2024 and filed on 16th July 2024, the son of the late Anthony Wekesa, Tobias Namusonge Wekesa, craved for orders that the family of his father the late Anthony Wekesa be apportioned what he termed as it’s rightful and fair share in West Bukusu/South Mateka/103; the current residential compound and 5 acres of the portion stretching to Mucheusi and Wakhuleka farms. Further that the agreement with Chrispinus Wekesa Makokha, 1st Petitioner, of equitably exchanging an equivalent in value and significance, a portion of 2 acres from West Bukusu/South Mateka/5502 be adopted, ratified, adhered to and protected by this court.
12. Vide a Replying Affidavit sworn on 12th February 2024, the 2nd Petitioner herein, averred that the Objector’s mode of distribution as proposed is frivolous, an afterthought and a waste of the Court’s time. She averred that the Objector’s proposed mode of distribution has excluded some of the assets of the estate of the deceased herein and some beneficiaries.
13. In response, the Objector/Protestor swore his Supplementary Affidavit sworn on 8th April 2024, wherein he averred that the mother to the 2nd Petitioner herein, Anna Kwena Wekesa, is not in the ICU as alleged and that the Petitioners never sold any 4 ½ acres to cater to her medical needs rather they have allocated themselves 13½acres. He averred that while they have handed over 10 acres to Chrispinus Wekesa Makokha they excluded the family of the late Anthony Wekesa and that West Bukusu/South Mateka/103 measures 23 acres and not 28 as distributed.
14. In a Further Affidavit to the mode of distribution sworn by the 1st Petitioner herein, on 22nd August 2024, he averred that his late father had the following assets:
a. West Bukusu/South Mateka/103.
b. West Bukusu/South Mateka/139.
c. Kanduyi Plot No. 4.
d. Harambee/Kholera/Plot No. 1012.
e. Watoya Plot No. 1
f. M/V KYG 251
g. Motor Vehicle Registration KTN 420.
15. He proposed that the properties be distributed as follows:
a) West Bukusu/South Mateka/103 :-
i. Ann W. Kwena (widow)-3.5 Acres
ii. Homestead/Compund-1 Acre
iii. Chrispinus Wekesa Makokha-7 Acres
iv. Felistus N. Odanga-0.5 Acres
v. Odilia Mshambala-0.5 Acres
vi. Gaudencia Ashitiva-0.5 Acres
vii. Genevive Wekesa-0.5 Acres
viii. Gladys Kituyi-0.5 Acres
ix. Everylne Odhiambo-0.5 Acres
x. Roselyne Washiali-0.5 Acres
xi. Lorraine Wekesa-0.5 Acres
xii. Regina Wekesa-0.5 Acres
xiii. Tobias Namusonge (To hold in trust for the family of the late Anthony Wekesa Makokha)-7 Acres
xiv. Access road/pathway-0.5 Acres.
16. He averred that the initial land parcel West Bukusu/South Mateka/40 had been utilized by the family of the late Anthony Wekesa Makokha and they have agreed to surrender 3 Acres of the land from West Bukusu/South Mateka/40 to Chrispinus Wekesa Makokha.
17. He averred that the plot at Kanduyi No. 4 to be shared amongst his mother’s 2nd house.
18. He averred that land parcel No. West Bukusu/South Mateka/139 to be shared out amongst the 2nd house.
19. He averred that plot No. 1 at Watoya/Kabula plot be shared amongst three members i.e: Front Doors has 3 doors – 2 doors to the family of Kennedy Wekesa and 1 door to the Chrispinus Wekesa Makokha, and the door behind and the undeveloped portion to be shared amongst Anthony’s family.
20. He averred that the plot at Harambee/Kholera/1012 to be shared amongst Chrispinus Wekesa Makokha and Anthony Wekesa’s family.
21. He averred that the Motor Vehicle Registration No. KYG 251 Matatu Pickup was to be allocated to his late brother Anthony Wekesa but the same was taken by Genevive Wekesa.
22. He averred that the Motor Vehicle Registration Number KTN 420 to be sold and the proceeds to be shared amongst:
i. Felistus N. Odanga
ii. Odilia Mshambala
iii. Gaudencia Ashitiva
iv. Gladys Kituyi
v. Everylne Odhiambo
vi. Roselyne Washiali
vii. Lorraine Wekesa
viii. Regina Wekesa
23. Mildred Apiyo Oleso, swore an Affidavit in Protest to the mode of distribution on 16th July 2024, wherein she averred that she is the daughter of the late Anthony Wekesa and that she is aware that her late father was allocated a share in land parcel number W. Bukusu/S. Mateka/40, currently West Bukusu/South Mateka/5502 which parcel of was registered in the name of her step- mother Margaret Achieng Wekesa by her uncle Camilus Peter Wekesa without regard to the fact that she is the 1st born child of Anthony Wekesa, born by a different mother. She thus craves for a share of a plot to be hived from N. Wanga/Kholera/1012 and a share in Plot No.1. Watoya Market.
24. This cause was referred to mediation and registered as Bungoma Mediation Case No. 005 of 2023. It however failed to bear fruit. This Court then proceeded to set the matter down for hearing and the Summons for Confirmation of Grant was canvassed by way of viva voce evidence.
PROTESTOR’S CASE
25. Protestor-PW1, Chrispinus Wekesa Makokha, testified that he was the 1st Petitioner herein now Protestor and that the deceased herein was his father. At his request this Court adopted his recorded witness statement dated 16th September 2024, and a Further Affidavit on the mode of distribution dated 22nd August 2024, as his evidence in chief. He told this court that he was disassociating himself from the affidavit in reply that he swore jointly with Felistus Nekesa Odanga on 9th May 2024 and the joint affidavit in support of the summons for confirmation of grant sworn on 2nd January 2024. It was his testimony that the deceased herein had during his lifetime settled his sons on his land Parcels Number East.Bukusu/South.Mateka/103 and East.Bukusu/South.Mateka/139. Further that the deceased had inherited ancestral land parcel number East.Bukusu/South. Mateka/40 from his father, the late Leo Makokha Ongaka vide Kakamega High Court P&A Cause NO 289 of 1993. He told the Court that his endeavour as an administrator to have all the beneficiaries consent to the mode of distribution of the estate of the deceased bore no fruits. He proposes that all the daughters of the deceased should get ½ an acre each from land parcel number BUKUSU/S.MATKEKA/103 and the court be pleased to adopt his proposed mode of distribution.
26. On cross-examination, the 1st petitioner turned protestor told the Court that the deceased herein had 10 daughters and 4 sons in the 1st house and that each daughter should get ½ an acre as he is aware that the law in Kenya treats all the children of the deceased equally wherefore the ½ acre will suffice for daughters. He told the Court that he should be apportioned 7 acres and that his late brother Anthony Wekesa should also get 7 acres, Eugene Wekesa and Kennedy Wekesa should also get 7 acres each. According to him, theses shares are from the land parcel number West Bukusu/South Mateka/103. In regard to parcel No. West Bukusu/South Mateka/40, he testified that his brother Camilus Wekesa, the Objector herein, was appointed the administrator to represent their deceased father in Kakamega High Court P&A Cause No 289 of 1993; in the matter of the estate of the late Leo Makokha Ongoka alias Leo Makokha Ongaka and that the objector divided that land into 3 portions whereat Kennedy Wekesa (deceased) and Anthony Wekesa ( deceased) both from the 1st house got 3.5 hectares each while the objector remained with 7 hectares to hold in trust for the 2nd house. He told the Court that when he came up with his proposed mode of distribution he had in mind land parcels West Bukusu/South Mateka/103 and West Bukusu/South Mateka/40 and that the family of the late Anthony Wekesa already received their own share from West Bukusu/South Mateka/40 amounting to 8.75 Acres, and that the same is now duly registered under the name of Margaret Achieng Wekesa(widow to Anthony Wekesa) as parcel No West Bukusu/ South mateka/5502. He told the Court that the family of Kennedy Wekesa received their respective portion from West Bukusu/South Mateka/40 as subdivision No West Bukusu/ South Mateka/ 5501 and had sold the same to three individulas namely Sarah Nawakhosi, Kevin Bully Wakwabubi and Dennis Luhale Simiyu.
27. The protestor told the Court that his brother Anthony Wekesa used to reside in the portion that their father had settled the former and that the latter died before moving out to go and settle on his portion at Parcel No West Bukusu/South Mateka/40. He further told the Court that his father had apportioned him and his late brother Eugene Wekesa 10 acres each in land parcel West Bukusu/South Mateka/103. Further that he intended to settle on 7 acres and let the family of Anthony Wekesa remain in possession of the 3 acres that they currently occupy and in return the family of Anthony was to give him 3 acres from West Bukusu/South Mateka/40 currently known as West Bukus/South Mateka/5502. He proposed that the homestead should have 1 acre while the daughters ought to get ½ acre each, and that his proposal is based on his father’s wishes. He told the Court that land parcel number West Bukusu/South Mateka/103 has 23 ½ acres and the proposal by his 10 sisters to be given the 10 acres that was meant for Eugene will inconvenience other stakeholders. He insisted that as long as his apportionment is not reduced, that of his brothers should also not be affected and that he will not accommodate equal sharing of the estate of the deceased herein among all the beneficiaries. PW1 denied that his proposed mode of distribution was gender biased and premised on male chauvinism.
28. On re-examination, he told the Court that he had initially considered all the family members and that the sizes of land of his late brothers were almost equal, and despite their demise he did not want their respective families to be disadvantaged. He noted that it was his father who distributed the land and that he proposes that each daughter should be given ½ of an acre.
29. On cross-examination by the Court, he told the Court that he had initially considered the total number of the family members as they are 18 in both households, and that he was basing his distribution on the portion of Eugene who died without an heir. He told the Court that his father did not do any subdivision and he understood that it is the duty of this Court to ensure equal distribution of the estate of the deceased, however if the court was to assign him ½ an acre he would consider such distribution as unfair to him.
30. The Protestor’s witness No 2; PW2, Tobias Namusonge Wekesa, testified that he is the son of the late Anthony Wekesa and that the Protester-PW1 herein is his uncle. According to him, the deceased herein had two parcels of land namely West Bukusu/South Mateka/103 and 139, and that he was supposed to inherit two parcels namely West Bukusu/South Mateka/40 and Watoya Plot Kabula/1. Further that the deceased had bought parcel No North Wanga / Kholera/1012 that was pending distribution in Succession proceedings but the vendor later sold the land to a third party.
31. PW2 told the Court that his late grandfather had a plot at Kanduyi but the same was repossessed by the County Government. He maintained that the deceased had a written a will and that parcel No. West Bukusu/South Mateka/103, measuring 23.5 acres, was bequeathed to the Protestor-PW1 and Eugene Wekesa, who were to agree on the mode of sharing given that Anthony Wekesa has constructed a house therein.
32. As regards land parcel number West Bukusu/South Mateka/139, PW2 told the Court that the deceased herein had shared it amongst his second wife Mary Nasimiyu and his two sons namely Mathias and Dennis. He told the Court that the deceased inherited parcel West Bukusu/South Mateka/40 from his father and the same was shared between Anthony Wekesa(deceased) and Kennedy Wekesa(deceased), Charles Mgawane(deceased), Erick Wekesa, and Camilus Peter Wekesa and that it was utilized for farming.
33. It was the testimony of PW2 that the Kanduyi Plot was given to the 2nd House of Mary but the same was taken over by the County Government. He also told the Court that Plot No.1 Kabula Market is still registered in the name of his great grandfather (Leo Makokha) and that it has a commercial building; 3 front doors were shared to Kennedy-2 doors and Eugene-1 door, while the late Anthony got the hind building.
34. PW2 testified that the deceased had distributed his real properties in the year 2000 and that some have been occupied while one is by the river and is not habitable. He told the Court after the death of Eugene a meeting was convened by the brother to the deceased herein one Bilasio Mulongo Makokha and his grandmother Kwena Wekesa was present, and it was decided that his aunties should be given 5 acres jointly and the remaining 5 acres should be left for the late Anthony as he had built therein. He insisted that the daughters of the deceased should be contended with the given 5 acres instead of wanting the whole 10 acres on grounds that they intend to sell some portion to enable them cater for their mother’s medical bill.
35. On cross-examination, PW2 told the Court that he is not the son of the deceased herein and was only before this Court to secure the interests of his late father, Anthony Wekesa, although he conceded that he had not obtained a grant of letters of administrationto the estate of his late father. Whereas he feigned ignorance of the transmission of parcel No West Bukusu/ South Mateka /40 and it’s subdivision to parcel Nos West Bukusu/ South Mateka/5500,5501 and 5502, he told the Court that he heard that his mother, Margaret Achieng Wekesa was registered in one of the sub-divisions and that they are currently using the said West Bukusu/South Mateka/40 for farming purposes and that nobody has ever stopped them.
36. In relation to parcel West Bukusu/South Mateka/103, PW2 told the Court that the same was to be shared between Protestor-PW1 and Eugene(deceased), and that his late father, Anthony Wekesa, had a building thereon and that the said land was never shared out wherefore he disputes the allegation that he is residing on the portion of Protestor-PW1. He testified that they (family of Anthony) had entered into an agreement with the PW1 whereby they were to give him 4 acres in parcel No West Bukusu/ South Mateka /40 in exchange for 7 acres in parcel No West Bukusu/South Mateka/103; 2 acres for the homestead and 5 acres for farming. He maintained that the share belonging to the late Eugene Wekesa was shared in a meeting but failed to tender in evidence any minutes in proof thereof and he maintained that the minute were taken by the daughters of the deceased herein. He told the Court that he wants the daughters of the deceased person to get only ½ of an acre each. He said that in their custom they share land without effecting sub-division and transfer for generations. He said that his father got 8.75 acres from land parcel West Bukusu/South Mateka/40. He told the Court that he is strictly relying on the words of his grandmother who said in the meeting that the daughters of the deceased should get 5 acres jointly.
37. PW3, Patrick Barasa Mucheusi, testified that he was the neighbor of the deceased herein and on his request this Court adopted his recorded statement dated 16th September 2024, as his evidence in Chief. He told the Court that the deceased herein had 2 wives and several children. He told the Court that land parcel number West Bukusu/South Mateka/40 is ancestral. He told the Court that the deceased shared his land parcels numbers West Bukusu/South Mateka/139 and 103 and that land parcel number West Bukusu/South Mateka/40 had a swampy area and was not suitable for human settlement and that the land parcel number West Bukusu/South Mateka/103 and 139 were to be considered in sharing. He told the Court that he is aware that the daughters of the deceased are all married and that the sons had agreed to share the assets of the estate by giving them ½ an acre each so that they too can enjoy the estate of their deceased father.
38. On cross-examination, PW3 said that he was just a neighbor and that he was present during the meeting when it was agreed that the daughters should ger 3 acres. He told the Court that he has no evidence in form of minutes to prove that the meeting occurred or that land parcel number West Bukusu/South Mateka/40 is not habitable.
39. Protestor’s PW4, Ibrahim Bunyolo Masibo, testified that he knows the family of the deceased and that he is the clan chairman of the Awarende clan. At his request this Court adopted his recorded statement dated 16th September 2024, as his evidence in Chief. He told the Court that prior to the demise of the deceased herein, he had in the year 2000 shared his land parcels number West Bukusu/South Mateka/103 and 139 and that he also had another parcel of ancestral land which he was given by his late father Leo Makokha Ong’aka. He told the Court that the land was land parcel West Bukusu/South Mateka/40. He testified that he tried to solve the issue of land as the clan chairman but the parties could not agree and he supported the Protestor’s proposal that the daughters of the deceased be given ½of an acre each from the land parcel West Bukusu/South Mateka/103.
40. On cross-examination, PW4 told the Court that the daughters of the deceased should be given their shares and that the family members of the deceased should negotiate.
2ND PETITIONER’S CASE
41. 2ND PET-W1, Felisters Nekesa Odanga, testified that she is the 1st born daughter of the deceased herein and that Protestor-PW1 and the Objector are her siblings, with Protestor-PW1 hailing from the 1st house and the Objector hailing from the 2nd house. At her request this Court adopted the Replying Affidavit sworn on 9th June 2024, jointly sworn by the Protestor-PW1 and herself, her Supplementary Affidavit sworn on 9th July 2024 and her recorded statement dated 19th September 2024 as her evidence in chief. She also produced her documents as per her list of documents filed in Court and dated 19th September 2023, namely:
(i) Confirmed Grant in Kakamega P&A 289/1993 as 2PEXH.1,
(ii) Green card for land parcel W. Bukusu/S. Mateka/40 as 2PEXH. 2,
(iii) Green card for land parcel W. Bukusu/S. Mateka/5500 as 2PEXH. 3,
(iv) Green card for land parcel W. Bukusu/S. Mateka/5501 as 2PEXH. 4,
(v) Green card for land parcel W. Bukusu/S. Mateka/5502 as 2PEXH. 5.
42. According to the second petitioner, the deceased herein had, prior to his demise, separately settled his widows and children as follows: land parcel W. Bukusu/S. Mateka/103 was given to the widow Anna Kwena Wekesa (3 acres), Chrispinus Wekesa Makokha (10 acres) and Eugene Wekesa (10 acres); land parcel W. Bukusu/S. Mateka/139 was given to Kennedy Wekesa (3.5Ha), Anthony Wekesa (3.5 Ha) and the balance of 7 Ha was to be divided between Camilus Peter Wekesa , Charles Wekesa and Eric Wekesa (as to be agreed amongst themselves); Plot at Kanduyi was given to the 2nd house (was repossessed by the County Government); Plot at Harambee (No. 1012/N. Wanga/Kholera) was given to the sons of the 1st House; Plot Watoya Market (Plot No. 1) the hind buildings was given to Anthony Wekesa, front 2 doors was given to Kennedy Wekesa and extreme left door was given to Eugene Wekesa. That the deceased herein died before transmitting the land parcel W. Bukusu/S. Mateka/40 into his name so the Objector herein substituted the deceased herein in the Succession Cause in Kakamega High Court and had the land transmitted to him as per EXH. 1 and EXH. 2 before this Court.
43. 2PW1 told the Court that her brother the objector transmitted land parcel W. Bukusu/S. Mateka/40 to his name and subsequently subdivided it into 3 subdivisions currently parcels Nos West Bukusu/ South Mateka 5500; in the name of the objector Camilus Peter Wekesa, 5501; in the name of Kennedy Wekesa who in turn sold his portion to 3 purchasers as evident from 2PEX3, 2PEX4 and 2PEX 5 and 5502 in the name of Margaret Achieng Wekesa (widow of Anthony Wekesa).
44. 2PETW1 She told the Court that her late brother Anthony Wekesa died before he could relocate to his portion comprised in then land parcel W. Bukusu/S. Mateka/40 and now land parcel W. Bukusu/S. Mateka/5502, currently occupied by his widow and children. She told the Court that at the time of his demise, the late Anthony Wekesa was occupying a portion comprised in Chrispinus Makokha Wekesa’s share in land parcel W. Bukusu/S. Mateka/103, which they agreed on a mode of swapping between themselves. According to her, the daughters of the deceased herein have no problem with the way the 1st Petitioner and the family of the late Anthony Wekesa have agreed with regards to their respective shares in land parcel W. Bukusu/S. Mateka/103 and land parcel W. Bukusu/S. Mateka/5502. She insisted that if the Prostetor-PW1 has agreed to exchange some portions of land with the family of the late Anthony Wekesa then his share in land parcel W. Bukusu/S. Mateka/103 ought to be reduced by the share to be exchanged.
45. 2PETW1 testified that the daughters of the deceased herein are fully aware that they are equally entitled to a share from their father’s estate and have agreed and proposed that since their brother Eugene Wekesa died without a family, they should be given his 10 acres share in land parcel W. Bukusu/S. Mateka/103. She beseeched this Court to confirm the Grant as per the proposed mode of distribution dated 9th May 2024.
46. On cross-examination, she insisted that the deceased had 15 daughters, ten from the 1st house, with one deceased and 5 from the 2nd house. She told the Court that the daughters of the 2nd house have no issues. She told the Court that the deceased herein gave the 1st house land parcel W. Bukusu/S. Mateka/103 and it was for her mother and 2 brothers. She confirmed that she attended the “Lufu” ceremony upon the demise of her father and that she did not raise any complaint. She insisted that she just wants her share of the inheritance.
47. On re-examination, she told the Court that with regards to land parcel W. Bukusu/S. Mateka/40 the same is being used by the family of the late Anthony (1st House) and Objector (2nd house) and that the late Kennedy Wekesa sold his portion and that the purchasers are utilizing the same. She reiterated that she was not
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