REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT BUNGOMA
SUCCESSION CAUSE NO. 198 OF 2015
IN THE MATTER OF THE ESTATE OF BUSOLO NAMBILI (DECEASED)
MARTIN MASINDE SIKUKU……………………1 st PETITIONER
JOHN WEKESA BUSOLO .………………………… 2 nd PETITIONER
AND
FELISTA NEKESA SIKUKU ... INTERESTED PARTY/ APPLICANT
JANE NABWOBA………………………………INTERESTED PARTY
RULING
INTRODUCTION
1. The instant succession cause was filed in court on or around the 8 th of July, 2015 and relates to the estate of Busolo Nambili. The estate comprise L.R. No. E. Bukusu/ S. Nalondo/1013, a search certificate annexed to the succession forms shows that the land is registered in the name of the deceased, Busolo Nambili, Stephen Masinde, Dismas Sikuku and John Wekesa and the land is shown to measure 17.5 Hectares. In a ruling on how the estate of the deceased was to be distributed, Lady Justice Ali-Aroni held that Stephen Masinde, Dismas Sikuku alias Matini Sikuku and John Wekesa who were proprietors in common alongside the deceased were sons of the deceased.
2. It is noted in the ruling that Stephen Masinde predeceased his father but left behind two widows who are Joyce Makhungu Masinde and Judith Nanjala Masinde.
3. Lady Justice Ali-Arono held that the late Busolo Nambili had a single daughter called Felistus Nafula Busolo. The court held that the estate of the deceased should be distributed equally among his four children being the late Stephen Masinde, Martin Masinde, John Wekesa Masinde and Felistas Nafula Busolo.
4. The learned Judge distributed the estate of the deceased as follows;
(a) Joyce Nakhungu Masinde & Judith Nanjala Masinde were apportioned 14 acres to hold in trust for the estate of Stephen Masisnde,
(b) Martin Masinde 14 acres,
(c) John Wekesa Masinde 14 acres, and
(d) Felistas Nafula Busolo 12 acres.
5. Pursuant to an application dated 1 st November, 2019 which sought to rectify the confirmed grant issued by Lady Justice Ali-Aroni, Hon. Justice D. Kemei delivered a ruling dated 23rd August, 2024 in which he allowed the change of the name of Martin Masinde to Martin Sikuku Busolo and John Wekesa Masinde to John Wekesa Busolo. And in accordance with a consent recorded by the parties the acreage apportioned to Felistas Nafula Busolo was reduced from 12 to 1.20 acres. Save for the above changes the ruling of Hon. Lady Justice Ali-Aroni remained unaffected.
6. Justice D. Kemei also directed that the land be surveyed to give effect to the ruling by Lady Justice Ali-Aroni as amended by his ruling of 23 rd August, 2024. It was noted that there was marked hostility among the beneficiaries to the estate of the deceased and it was directed that the OCS Nalondo Police Station was to provide security during the survey exercise.
7. The survey report submitted pursuant to the above orders is the subject of the grounds of opposition filed by the interested parties herein; being Felista Nekesa Sikuku and Jane Nabwoba through an affidavit dated 5 th May, 2025 and grounds of opposition dated 24 th October, 2025 respectively. Felista Nekesa describes herself as a widow to the late Martin Masinde Sikuku while Jane Nabwoba is silent on what her interest in the estate is.
8. What the interested parties are saying, in essence, is that the survey was conducted clandestinely, through use of or threat of force and in the absence of some of the beneficiaries to the estate of the deceased.
9. They are also saying that the surveyor acted ultra-vires the ruling of Lady Justice Ali-Aroni as varied by the latter ruling of Hon. Justice D. Kemei.
10. The impugned survey report is dated 13 th March, 2025. The surveyor reports that he visited the estate of the deceased on 7 th March, 2025 after the beneficiaries were summoned through a letter of the area chief dated 27 th February, 2024.
11. In the report, the surveyor notes that the deceased had distributed his estate to his sons save for the single daughter who was to be apportioned 1.20 acres. He further reports that the boundaries were properly marked on the ground save that the registered acreage was larger than the actual acreage on the ground.
12. The surveyor reports picking the boundaries for the sons and the single daughter and the respective acreages which are as follows;
(a) John Wekesa Busolo 13.00 acres
(b) Martin Sikuku Busolo 9.30 acres
(c) Joyce Nakhungu Masinde & Judith Nanjala 8.05 acres to hold in trust for estate of Stephen Masinde, and
(d) Felistus Nafula Busolo 1.20 acres.
13. It is apparent from a google map attached to the report that the entire 1.20 acres apportioned to Felistus Nafula Busolo has been hived from a portion marked C earmarked for the estate of Stephen Masinde. It is evident that the above portions are not equal as ruled by L.J. Ali-Aroni and as varied by Hon. Justice D. Kemei pursuant to a consent.
14. This succession cause involves an intestate estate, it is apparent that the surveyor conducted a partisan exercise meant to circumvent the directions issued by this court and for the benefit of some of the beneficiaries and to the detriment of some of the beneficiaries.
15. I agree with the submissions of the objectors that the survey report dated 13 th March, 2025 is ultra-vires the mode of distribution decreed by this court, the report is for total rejection and ought to be expunged.
16. I do allow the grounds of opposition as advanced by the interested parties who have rightly pointed out the usurpation of this courts judicial authority by the County Land Surveyor. The survey report dated 13 th March, 2026 is consequently expunged and quashed as of no consequence.
17. In its place, I do order that the County Survey Officer conduct a fresh survey within a period of 30 days with the OCS of Nalondo Police Station providing security. The survey to be done in the presence of the beneficiaries as ascertained by Lady Justice Ali-Aroni in the ruling delivered on 27 th March, 2018 as varied by Justice D. Kemei on 23 rd August, 2018 and in accordance with the directions given therein.
18. The net estate of the deceased be and is hereby ordered to be distributed equally among the three sons of the deceased or their representatives after setting apart 1.20 acres ascertained for Felistas Nafula Busolo, who is a daughter to the deceased, from the entire estate.
19. The 2 nd Administrator respondent shall bear the costs of this application.
Ruling read, dated, Signed and delivered in the open court this 23 rd July, 2026
R. K.Koech
JUDGE
In the presence of;
Mr. Wekesa h/b for Mr. Wamalwa Simiyu for the 2 nd Petitioner and Mr. Alovi for the 1 st Petitioner.
Ms. Wekesa h/b for Mr. Wayongo for the Interested Party.
Ms. Roselyne Makali, court assistant.
Right of appeal within 30 days.
Page 6Page 6Ruling Bungoma P&A 198 of 2015
IN THE HIGH COURT OF KENYA AT BUNGOMA
SUCCESSION CAUSE NO. 198 OF 2015
IN THE MATTER OF THE ESTATE OF BUSOLO NAMBILI (DECEASED)
MARTIN MASINDE SIKUKU……………………1 st PETITIONER
JOHN WEKESA BUSOLO .………………………… 2 nd PETITIONER
AND
FELISTA NEKESA SIKUKU ... INTERESTED PARTY/ APPLICANT
JANE NABWOBA………………………………INTERESTED PARTY
RULING
INTRODUCTION
1. The instant succession cause was filed in court on or around the 8 th of July, 2015 and relates to the estate of Busolo Nambili. The estate comprise L.R. No. E. Bukusu/ S. Nalondo/1013, a search certificate annexed to the succession forms shows that the land is registered in the name of the deceased, Busolo Nambili, Stephen Masinde, Dismas Sikuku and John Wekesa and the land is shown to measure 17.5 Hectares. In a ruling on how the estate of the deceased was to be distributed, Lady Justice Ali-Aroni held that Stephen Masinde, Dismas Sikuku alias Matini Sikuku and John Wekesa who were proprietors in common alongside the deceased were sons of the deceased.
2. It is noted in the ruling that Stephen Masinde predeceased his father but left behind two widows who are Joyce Makhungu Masinde and Judith Nanjala Masinde.
3. Lady Justice Ali-Arono held that the late Busolo Nambili had a single daughter called Felistus Nafula Busolo. The court held that the estate of the deceased should be distributed equally among his four children being the late Stephen Masinde, Martin Masinde, John Wekesa Masinde and Felistas Nafula Busolo.
4. The learned Judge distributed the estate of the deceased as follows;
(a) Joyce Nakhungu Masinde & Judith Nanjala Masinde were apportioned 14 acres to hold in trust for the estate of Stephen Masisnde,
(b) Martin Masinde 14 acres,
(c) John Wekesa Masinde 14 acres, and
(d) Felistas Nafula Busolo 12 acres.
5. Pursuant to an application dated 1 st November, 2019 which sought to rectify the confirmed grant issued by Lady Justice Ali-Aroni, Hon. Justice D. Kemei delivered a ruling dated 23rd August, 2024 in which he allowed the change of the name of Martin Masinde to Martin Sikuku Busolo and John Wekesa Masinde to John Wekesa Busolo. And in accordance with a consent recorded by the parties the acreage apportioned to Felistas Nafula Busolo was reduced from 12 to 1.20 acres. Save for the above changes the ruling of Hon. Lady Justice Ali-Aroni remained unaffected.
6. Justice D. Kemei also directed that the land be surveyed to give effect to the ruling by Lady Justice Ali-Aroni as amended by his ruling of 23 rd August, 2024. It was noted that there was marked hostility among the beneficiaries to the estate of the deceased and it was directed that the OCS Nalondo Police Station was to provide security during the survey exercise.
7. The survey report submitted pursuant to the above orders is the subject of the grounds of opposition filed by the interested parties herein; being Felista Nekesa Sikuku and Jane Nabwoba through an affidavit dated 5 th May, 2025 and grounds of opposition dated 24 th October, 2025 respectively. Felista Nekesa describes herself as a widow to the late Martin Masinde Sikuku while Jane Nabwoba is silent on what her interest in the estate is.
8. What the interested parties are saying, in essence, is that the survey was conducted clandestinely, through use of or threat of force and in the absence of some of the beneficiaries to the estate of the deceased.
9. They are also saying that the surveyor acted ultra-vires the ruling of Lady Justice Ali-Aroni as varied by the latter ruling of Hon. Justice D. Kemei.
10. The impugned survey report is dated 13 th March, 2025. The surveyor reports that he visited the estate of the deceased on 7 th March, 2025 after the beneficiaries were summoned through a letter of the area chief dated 27 th February, 2024.
11. In the report, the surveyor notes that the deceased had distributed his estate to his sons save for the single daughter who was to be apportioned 1.20 acres. He further reports that the boundaries were properly marked on the ground save that the registered acreage was larger than the actual acreage on the ground.
12. The surveyor reports picking the boundaries for the sons and the single daughter and the respective acreages which are as follows;
(a) John Wekesa Busolo 13.00 acres
(b) Martin Sikuku Busolo 9.30 acres
(c) Joyce Nakhungu Masinde & Judith Nanjala 8.05 acres to hold in trust for estate of Stephen Masinde, and
(d) Felistus Nafula Busolo 1.20 acres.
13. It is apparent from a google map attached to the report that the entire 1.20 acres apportioned to Felistus Nafula Busolo has been hived from a portion marked C earmarked for the estate of Stephen Masinde. It is evident that the above portions are not equal as ruled by L.J. Ali-Aroni and as varied by Hon. Justice D. Kemei pursuant to a consent.
14. This succession cause involves an intestate estate, it is apparent that the surveyor conducted a partisan exercise meant to circumvent the directions issued by this court and for the benefit of some of the beneficiaries and to the detriment of some of the beneficiaries.
15. I agree with the submissions of the objectors that the survey report dated 13 th March, 2025 is ultra-vires the mode of distribution decreed by this court, the report is for total rejection and ought to be expunged.
16. I do allow the grounds of opposition as advanced by the interested parties who have rightly pointed out the usurpation of this courts judicial authority by the County Land Surveyor. The survey report dated 13 th March, 2026 is consequently expunged and quashed as of no consequence.
17. In its place, I do order that the County Survey Officer conduct a fresh survey within a period of 30 days with the OCS of Nalondo Police Station providing security. The survey to be done in the presence of the beneficiaries as ascertained by Lady Justice Ali-Aroni in the ruling delivered on 27 th March, 2018 as varied by Justice D. Kemei on 23 rd August, 2018 and in accordance with the directions given therein.
18. The net estate of the deceased be and is hereby ordered to be distributed equally among the three sons of the deceased or their representatives after setting apart 1.20 acres ascertained for Felistas Nafula Busolo, who is a daughter to the deceased, from the entire estate.
19. The 2 nd Administrator respondent shall bear the costs of this application.
Ruling read, dated, Signed and delivered in the open court this 23 rd July, 2026
R. K.Koech
JUDGE
In the presence of;
Mr. Wekesa h/b for Mr. Wamalwa Simiyu for the 2 nd Petitioner and Mr. Alovi for the 1 st Petitioner.
Ms. Wekesa h/b for Mr. Wayongo for the Interested Party.
Ms. Roselyne Makali, court assistant.
Right of appeal within 30 days.
Page 6Page 6Ruling Bungoma P&A 198 of 2015