Introduction
1. This is a Judgment on the protest dated 19.7.22 filed by Richard Onami Omwega and John Miruka Omwega(hereinafter reffered to as protestors) against summons for confirmation of grant dated 25th May 2022 filed by Francis Ayiecha Omwega (hereinafter referred to as respondent ).
Background
2. On 17th February 2022 this court issued letters of administration in the joint names of the protestors and the respondent and directed them to file a joint mode of distribution.
3. The respondent filed a summons dated 25th May 2022 seeking confirmation of the grant. In his supporting affidavit he presented a mode of distribution said to reflect the deceased’s alleged settlement of each of his three wives on separate and distinct parcels, with family members occupying and developing those respective portions.
4. The respondent claimed that during his life time the deceased delineated parcels for each family and intendedthat the families to occupy those portions permanently.
Proposed distribution by respondent
5. The respondent’s proposed distribution (consented to by members of the first house only) allocated shares on Parcel LR NO. MAJOGE/BOSOTI/839 as follows:
- Teresa Bitengo Ayiecha — 0.44 Ha
- Wycliffe Omwega Ayiecha — 0.43 Ha
- Reuben Nyangau Omwega — 0.68 Ha
- Francis Onyango Omwega — 0.88 Ha
- Abigael Monyenye — nil
- Teresa Bitengo to get the centre of Plot B in Mesabakwa Market
He proposed that LR NO. MAJOGE/690 and Plot 12 in Ibencho Market go to the 2nd house, LR NO. MAJOGE/660 and LR NO. MAJOGE/958 to the 3rd house, and that the charge in favour of National Bank on LR NO. MAJOGE/690 be dealt with immediately.
Protest
6. The protestors (1st and 2nd petitioners) filed a joint affidavit of protest dated 19th July 2022. They averred that:
- The respondent did not obtain their consent to the mode of distribution; the application was not shared with them before filing.
- They had earlier met the respondent (as administrator) and agreed certain matters, but did not consent to confirmation of grant.
- The respondent’s schedule included names of persons not appearing in the succession cause and omitted several daughters and dependents of the deceased.
7. The objectors listed the alleged omitted beneficiaries as :
a) Pauline Nyanduko Omwega
b) Estah Mwango Omwega
c) Josephine Mokeira Omwega
d) Naomi Magoma Miruka (wife to a deceased son — dependent)
e) Tabitha Nyansiaboka Omwega
f) Teresia Bitengo Ayiecha (wife to a deceased son — dependent)
8. They also challenged inclusion of Wycliffe Omwega Ayiecha as a beneficiary, disputed that Land parcel NO. MAJOGE/BOSOTI/958 formed part of the estate, and alleged that Ibencho Market Plot No. 12 had been sold during the deceased’s lifetime.
9. The objectors proposed equal distribution among the full list of beneficiaries (18 persons) and suggested sale of the indivisible Mesabakwa Market Plot No. 4B with net proceeds shared equally. They asked the court to direct the County Surveyor to inspect, subdivide and report, and to have the Sub-County Commander oversee peaceful distribution.
Evidence
10. The court viva voce evidence of the 1st protestor and the respondent PW1 (Richard Onami Omwega, 1st protestor ) confirmed the deceased had three wives and 18 beneficiaries. He stated LR NO. MAJOGE/BOSOTI/839 is ancestral and is occupied by members of the 1st and 3rd houses, land parcel No. MAJOGE/BOSOTI/690 is occupied by the 2nd house and that land parcel No. MAJOGE/BOSOTI/660 is shared by all three houses. He confirmed the deceased did not allocate specific shares during his lifetime and expressed no objection to each house remaining on the parcels of land they occupy. He stated he personally resides on parcel 690.
11. DW1 (Francis Onyango Omwega, the respondent) admitted the proposed mode did not include all beneficiaries and conceded he was not opposed to beneficiaries remaining where they had been settled by deceased .
12. From the evidence of record deceased was a polygamous man having married 3 wives and he settled the houses as follows :
i. Land Parcel parcel NO. MAJOGE/BOSOTI/958 -1st and 3rd houses
ii. Land Parcel NO. MAJOGE/BOSOTI/690 – 2nd house
iii. Land parcel parcel NO. MAJOGE/BOSOTI/660 – utilized by the 3 houses.
Issues for determination
13. I have carefully considered the evidence on record , the objection and the summons for confirmation of grant and the able submissions by counsel . The issues are:
i. Who are the beneficiaries of the estate of deceased as per the 2 houses ?
ii. How should the portions occupied and being used by the 3 houses houses be distributed ?
ii. Whether land parcel No. MAJOGE/BOSOTI/958, Ibencho Plot No. 12 and plot no . 4B Mesabakwa Market form part of the estate of deceased .
iii. What final orders should issue?
iv. Who shall bear the costs of these proceedings ?
Analysis
Identification of beneficiaries
14. This court has a duty to determine beneficiaries of the deceased. As per the letter dated 4.10.2007 authored by the chief Sengera location and initially used to file this cause the deceased was survived by 11 sons only. I have also seen the letter dated 28.12.23 by the area Chief Ibencho location- Kenyanya which listed 15 survivors of deceased including the 3rd widow as follows :
First wife – Elizabeth Kerubo (deceased )whose children are ;
a. Samwel Ayiecha Omwega (deceased) - Son – represented by wife Teresia Bitengo Ayiecha - Daughter-in-law (ID/No. 1615632) .
b. Reuben Nyangau Omwega - Son (ID/No. 0975806)
c. Francis Onyango Omwega Ayiecha - Son (ID/No. 3105959)
d. Abigael Monyenche Omwega - Daughter (ID/No. 1617358)
Second Wife -Yunuke Mocheche Omwega (deceased )
a. Samwel Omwega Ayiecha - Son (ID/No. 8962659)
b. Henry Omwega - Son (ID/No. 7009441)
c. Gideon Omwega - Son (ID/No. 10927896)
d. Tabitha Nyansiaboka - Daughter (ID/No. 8533691)
e. Zachary Gitenya Omwega - Son (ID/No. 13081581)
f. Richard Onami Omwega - Son (ID/No. 13081581)
g. Estah Mwango Omwega - Daughter (ID/No. 20847183
h. Stephen Omwega - Son (ID/No. 21048868)
i. John Miruka Omwega - Son (ID/No. 21635923)
j. Josephine Moreira Omwega (ID/No. 23780565)
Third Wife: Mary Nyabwari Omwega (ID/No. 1612634) –
a. Pauline Nyanduko Omwega - Daughter (ID/No. 7288305) –
b. Kepha Miruka Omwega (deceased) -represented by wife Naom Magoma Miruka - Daughter in law (ID/No. 28799737).
15. Article 27 of the Constitution provides for the principle of non- discrimination of persons grounds of sex, gender , race , status etc
16. Section 29 of the Act provides that;-
A dependant is -
The wife or wives and children of the deceased, regardless of whether they were maintained by the deceased immediately prior to their death.
The deceased's parents, step-parents, grandparents, grandchildren, step-children, children taken into the family as their own brothers, sisters, and half-brothers/half-sisters, provided they were being maintained by the deceased immediately before their death.
17. Section 29 of the Law of Succession Act does not discriminate on children on grounds of gender or status. Section 29 of the Law of Succession Act is in tandem with the spirit of Article 27 on non- discrimination of children on grounds of gender or status. This list as per the said letter by the Chief of Ibancho location is not disputed and includes the daughters that the objectors alleged were left out in the proposed mode of distribution by the respondent . I admit the said list as a true reflection of the beneficiaries .
.
Applicable law for distribution of the estate of a polygamous man
18. The deceased herein was a polygamous man having married 3 wives. He died intestate . Section 40 of the Law of Succession Act primarily provides as follows;
“(1)Where an intestate has married more than once under any system of law permitting polygamy, his personal and household effects and the residue of the net intestate estate, shall, in the first instance, be divided among the houses according to the number of children in each house, but also adding any wife surviving him as an additional unit to the number of children.”
The principles expounded in the above provisions was discussed in the case Rono –v-Rono Civil Appeal NO. 66 of 2002, where Waki J.A stated inter alia that;-
“More importantly, section 40 of the Act which applies to the estate makes provision for distribution of the net estate to the “houses according to the number of children in each house, but also adding any wife surviving the deceased as an additional unit to the number of children.” A “house” in a polygamous setting is defined in section 3 of the Act as a “family unit comprising a wife and children of that wife.”
19. In the case, in the Matter of Re Estate of Benson Ndirangu Mathenge (deceased) Nakuru HCSC NO. 231 of 1998 the deceased was survived by his two widows and their children. The first widow had four children, while the second widow had six children. The court stated that the first house was comprised of five units while second had seven units. The two houses of the deceased combined and looked at in terms of units made up twelve units. The court distributed the estate to the children and the widows treating each as a unit. The land available for distribution was forty acres, which was divided by the court into twelve units. Out of the twelve units, five were given to the first widow and her four children, while the remaining seven units went to the second widow and her six children.
20. Further, in the Estate of Nelson Kimotho Mbiti(deceased) HCSC NO.169 of 2000, this court directed that the estate of a polygamist be divided in accordance with the provisions of Section 40 of the Act. The estate was divided into units according to the number of children in each house with the widows being added as additional units. The same reasoning was also applied in the Estate of Ainea Masinde Walubengo(deceased) (2017)eKLR where it was held that “I am of the view that Section 40 of the Law of Succession Act will apply to the circumstances of this Case. Meaning that the Court will distribute the estate of the deceased according to each house taking into account the number of children in each unit including the surviving widow.”
21. It is not disputed that the deceased herein in his wisdom settled his family as follows :
(a) Land Parcel parcel NO. MAJOGE/BOSOTI/958 -1st and 3rd houses .
(b) Land Parcel NO. MAJOGE/BOSOTI/690 – 2nd house .
(c) Land parcel parcel NO. MAJOGE/BOSOTI/660 – utilized equally
by the 3 houses.
Though the deceased died intestate, his intention is discernible from the manner in which the respective houses have occupied and utilized the suit parcels, as admitted by both the protestors and the respondent. That pattern of settlement demonstrates that the deceased had regard to the acreage of the parcels and the number of children in each house. I have also considered the interests of justice, and the need to preserve family harmony, peace, and tranquility. In the circumstances, this Court will adopt the mode of distribution contemplated under Section 40 of the Law of Succession Act, while taking into account that, notwithstanding the absence of a will, the deceased had substantially settled his families as aforesaid. I have further considered the interests of justice, and the need to preserve family harmony, peace, and tranquility. The daughters of the deceased, who were omitted in the proposed mode of distribution, shall be accommodated within their respective houses as beneficiaries of the estate, in accordance with the law.
22. On land parcel No. MAJOGE/BOSOTI/958 the respondent included it in the proposed mode of distribution but I have perused its search filed herein the same is clear that it is registered in the joint names of Lucia Monchari Okwoyo and Doris Monyancha Okwoyo (as at 19.12.2023). The same thus does not form part of the estate of deceased and is thus not available for distribution.
d) On Plot Ibencho Market Plot No. 12 is not available for distribution as it was sold during the deceased’s lifetime as alleged by the petitioners and not contradicted. No documentary evidence of ownership of Mesabakwa Market Plot No. 4B was availed and so it is also not available for distribution
23.The protest has thus partially succeeded . The estate of the deceased herein shall be distributed in accordance with Section 40 of the Law of Succession Act, taking into account current occupation and use. I proceed to distribute the estate as hereunder :
(a)Land Parcel No. MAJOGE/BOSOTI/839 (approximately 8.5 acres) shall be shared equally between the 1st and 3rd houses.
4.25 acres to the first house - shall thereafter be distributed in equal shares among the following beneficiaries ;
a. Teresia Bitengo Ayiecha - Daughter-in-law (ID/No. 1615632) .
b. Reuben Nyangau Omwega - Son (ID/No. 0975806)
c. Francis Onyango Omwega Ayiecha - Son (ID/No. 3105959)
d. Abigael Monyenche Omwega - Daughter (ID/No. 1617358)
Second house -4.25 acres to be shared by Pauline Nyanduko Omwega (ID/No. 7288305) & Naom Magoma Miruka - Daughter in law (ID/No. 28799737) in equal shares - Mary Nyabwari Omwega shall have a life interest on the portion of Pauline .
(b) Land parcel No. MAJOGE/BOSOTI/690 (approximately 9.0 acres) shall be inherited by the 2nd house and shall be subsequently shared equally among it’s members that ie .
a. Samwel Omwega Ayiecha - Son (ID/No. 8962659)
b. Henry Omwega - Son (ID/No. 7009441) .
c. Gideon Omwega - Son (ID/No. 10927896)
d. Tabitha Nyansiaboka - Daughter (ID/No. 8533691)
e. Zachary Gitenya Omwega - Son (ID/No. 13081581) .
f. Richard Onami Omwega - Son (ID/No. 13081581)
g. Estah Mwango Omwega - Daughter (ID/No. 20847183
h. Stephen Omwega - Son (ID/No. 21048868)
i. John Miruka Omwega - Son (ID/No. 21635923)
j. Josephine Moreira Omwega (ID/No. 23780565)
(c) Land parcel No. MAJOGE/BOSOTI/660 (approximately 1.4 ha) shall be shared equally among the three houses; each house shall retain the portions it currently occupies or uses.
d) Mesabakwa Market Plot No. 4B and Ibencho Market Plot No. 12 are not available for distribution.
e) Land parcel No. MAJOGE/BOSOTI/958 does not belong to deceased and so it is also not available for distribution.
f) The Kisii County Surveyor to visit the above parcels undertake survey in compliance with orders a-c above parties .
g)Each house shall share the costs of the visit by the surveyor .
h) The Surveyor shall file his report within 60 days from today.
i)Administration be concluded within 6 months from today.
j) This being a family matter , each party shall bear their own costs.
k) Mention on 1.10.26 to confirm completion of administration.
T.A ODERA
JUDGE
22.4.26
DELIVERED VIRTUALLY VIA TEAMS PLATFORM ON THIS 23RD DAY OF APRIL 2026 IN THE PRESENCE OF CA KIPCHIRCHIR . PARTIES ABSENT
1. This is a Judgment on the protest dated 19.7.22 filed by Richard Onami Omwega and John Miruka Omwega(hereinafter reffered to as protestors) against summons for confirmation of grant dated 25th May 2022 filed by Francis Ayiecha Omwega (hereinafter referred to as respondent ).
Background
2. On 17th February 2022 this court issued letters of administration in the joint names of the protestors and the respondent and directed them to file a joint mode of distribution.
3. The respondent filed a summons dated 25th May 2022 seeking confirmation of the grant. In his supporting affidavit he presented a mode of distribution said to reflect the deceased’s alleged settlement of each of his three wives on separate and distinct parcels, with family members occupying and developing those respective portions.
4. The respondent claimed that during his life time the deceased delineated parcels for each family and intendedthat the families to occupy those portions permanently.
Proposed distribution by respondent
5. The respondent’s proposed distribution (consented to by members of the first house only) allocated shares on Parcel LR NO. MAJOGE/BOSOTI/839 as follows:
- Teresa Bitengo Ayiecha — 0.44 Ha
- Wycliffe Omwega Ayiecha — 0.43 Ha
- Reuben Nyangau Omwega — 0.68 Ha
- Francis Onyango Omwega — 0.88 Ha
- Abigael Monyenye — nil
- Teresa Bitengo to get the centre of Plot B in Mesabakwa Market
He proposed that LR NO. MAJOGE/690 and Plot 12 in Ibencho Market go to the 2nd house, LR NO. MAJOGE/660 and LR NO. MAJOGE/958 to the 3rd house, and that the charge in favour of National Bank on LR NO. MAJOGE/690 be dealt with immediately.
Protest
6. The protestors (1st and 2nd petitioners) filed a joint affidavit of protest dated 19th July 2022. They averred that:
- The respondent did not obtain their consent to the mode of distribution; the application was not shared with them before filing.
- They had earlier met the respondent (as administrator) and agreed certain matters, but did not consent to confirmation of grant.
- The respondent’s schedule included names of persons not appearing in the succession cause and omitted several daughters and dependents of the deceased.
7. The objectors listed the alleged omitted beneficiaries as :
a) Pauline Nyanduko Omwega
b) Estah Mwango Omwega
c) Josephine Mokeira Omwega
d) Naomi Magoma Miruka (wife to a deceased son — dependent)
e) Tabitha Nyansiaboka Omwega
f) Teresia Bitengo Ayiecha (wife to a deceased son — dependent)
8. They also challenged inclusion of Wycliffe Omwega Ayiecha as a beneficiary, disputed that Land parcel NO. MAJOGE/BOSOTI/958 formed part of the estate, and alleged that Ibencho Market Plot No. 12 had been sold during the deceased’s lifetime.
9. The objectors proposed equal distribution among the full list of beneficiaries (18 persons) and suggested sale of the indivisible Mesabakwa Market Plot No. 4B with net proceeds shared equally. They asked the court to direct the County Surveyor to inspect, subdivide and report, and to have the Sub-County Commander oversee peaceful distribution.
Evidence
10. The court viva voce evidence of the 1st protestor and the respondent PW1 (Richard Onami Omwega, 1st protestor ) confirmed the deceased had three wives and 18 beneficiaries. He stated LR NO. MAJOGE/BOSOTI/839 is ancestral and is occupied by members of the 1st and 3rd houses, land parcel No. MAJOGE/BOSOTI/690 is occupied by the 2nd house and that land parcel No. MAJOGE/BOSOTI/660 is shared by all three houses. He confirmed the deceased did not allocate specific shares during his lifetime and expressed no objection to each house remaining on the parcels of land they occupy. He stated he personally resides on parcel 690.
11. DW1 (Francis Onyango Omwega, the respondent) admitted the proposed mode did not include all beneficiaries and conceded he was not opposed to beneficiaries remaining where they had been settled by deceased .
12. From the evidence of record deceased was a polygamous man having married 3 wives and he settled the houses as follows :
i. Land Parcel parcel NO. MAJOGE/BOSOTI/958 -1st and 3rd houses
ii. Land Parcel NO. MAJOGE/BOSOTI/690 – 2nd house
iii. Land parcel parcel NO. MAJOGE/BOSOTI/660 – utilized by the 3 houses.
Issues for determination
13. I have carefully considered the evidence on record , the objection and the summons for confirmation of grant and the able submissions by counsel . The issues are:
i. Who are the beneficiaries of the estate of deceased as per the 2 houses ?
ii. How should the portions occupied and being used by the 3 houses houses be distributed ?
ii. Whether land parcel No. MAJOGE/BOSOTI/958, Ibencho Plot No. 12 and plot no . 4B Mesabakwa Market form part of the estate of deceased .
iii. What final orders should issue?
iv. Who shall bear the costs of these proceedings ?
Analysis
Identification of beneficiaries
14. This court has a duty to determine beneficiaries of the deceased. As per the letter dated 4.10.2007 authored by the chief Sengera location and initially used to file this cause the deceased was survived by 11 sons only. I have also seen the letter dated 28.12.23 by the area Chief Ibencho location- Kenyanya which listed 15 survivors of deceased including the 3rd widow as follows :
First wife – Elizabeth Kerubo (deceased )whose children are ;
a. Samwel Ayiecha Omwega (deceased) - Son – represented by wife Teresia Bitengo Ayiecha - Daughter-in-law (ID/No. 1615632) .
b. Reuben Nyangau Omwega - Son (ID/No. 0975806)
c. Francis Onyango Omwega Ayiecha - Son (ID/No. 3105959)
d. Abigael Monyenche Omwega - Daughter (ID/No. 1617358)
Second Wife -Yunuke Mocheche Omwega (deceased )
a. Samwel Omwega Ayiecha - Son (ID/No. 8962659)
b. Henry Omwega - Son (ID/No. 7009441)
c. Gideon Omwega - Son (ID/No. 10927896)
d. Tabitha Nyansiaboka - Daughter (ID/No. 8533691)
e. Zachary Gitenya Omwega - Son (ID/No. 13081581)
f. Richard Onami Omwega - Son (ID/No. 13081581)
g. Estah Mwango Omwega - Daughter (ID/No. 20847183
h. Stephen Omwega - Son (ID/No. 21048868)
i. John Miruka Omwega - Son (ID/No. 21635923)
j. Josephine Moreira Omwega (ID/No. 23780565)
Third Wife: Mary Nyabwari Omwega (ID/No. 1612634) –
a. Pauline Nyanduko Omwega - Daughter (ID/No. 7288305) –
b. Kepha Miruka Omwega (deceased) -represented by wife Naom Magoma Miruka - Daughter in law (ID/No. 28799737).
15. Article 27 of the Constitution provides for the principle of non- discrimination of persons grounds of sex, gender , race , status etc
16. Section 29 of the Act provides that;-
A dependant is -
The wife or wives and children of the deceased, regardless of whether they were maintained by the deceased immediately prior to their death.
The deceased's parents, step-parents, grandparents, grandchildren, step-children, children taken into the family as their own brothers, sisters, and half-brothers/half-sisters, provided they were being maintained by the deceased immediately before their death.
17. Section 29 of the Law of Succession Act does not discriminate on children on grounds of gender or status. Section 29 of the Law of Succession Act is in tandem with the spirit of Article 27 on non- discrimination of children on grounds of gender or status. This list as per the said letter by the Chief of Ibancho location is not disputed and includes the daughters that the objectors alleged were left out in the proposed mode of distribution by the respondent . I admit the said list as a true reflection of the beneficiaries .
.
Applicable law for distribution of the estate of a polygamous man
18. The deceased herein was a polygamous man having married 3 wives. He died intestate . Section 40 of the Law of Succession Act primarily provides as follows;
“(1)Where an intestate has married more than once under any system of law permitting polygamy, his personal and household effects and the residue of the net intestate estate, shall, in the first instance, be divided among the houses according to the number of children in each house, but also adding any wife surviving him as an additional unit to the number of children.”
The principles expounded in the above provisions was discussed in the case Rono –v-Rono Civil Appeal NO. 66 of 2002, where Waki J.A stated inter alia that;-
“More importantly, section 40 of the Act which applies to the estate makes provision for distribution of the net estate to the “houses according to the number of children in each house, but also adding any wife surviving the deceased as an additional unit to the number of children.” A “house” in a polygamous setting is defined in section 3 of the Act as a “family unit comprising a wife and children of that wife.”
19. In the case, in the Matter of Re Estate of Benson Ndirangu Mathenge (deceased) Nakuru HCSC NO. 231 of 1998 the deceased was survived by his two widows and their children. The first widow had four children, while the second widow had six children. The court stated that the first house was comprised of five units while second had seven units. The two houses of the deceased combined and looked at in terms of units made up twelve units. The court distributed the estate to the children and the widows treating each as a unit. The land available for distribution was forty acres, which was divided by the court into twelve units. Out of the twelve units, five were given to the first widow and her four children, while the remaining seven units went to the second widow and her six children.
20. Further, in the Estate of Nelson Kimotho Mbiti(deceased) HCSC NO.169 of 2000, this court directed that the estate of a polygamist be divided in accordance with the provisions of Section 40 of the Act. The estate was divided into units according to the number of children in each house with the widows being added as additional units. The same reasoning was also applied in the Estate of Ainea Masinde Walubengo(deceased) (2017)eKLR where it was held that “I am of the view that Section 40 of the Law of Succession Act will apply to the circumstances of this Case. Meaning that the Court will distribute the estate of the deceased according to each house taking into account the number of children in each unit including the surviving widow.”
21. It is not disputed that the deceased herein in his wisdom settled his family as follows :
(a) Land Parcel parcel NO. MAJOGE/BOSOTI/958 -1st and 3rd houses .
(b) Land Parcel NO. MAJOGE/BOSOTI/690 – 2nd house .
(c) Land parcel parcel NO. MAJOGE/BOSOTI/660 – utilized equally
by the 3 houses.
Though the deceased died intestate, his intention is discernible from the manner in which the respective houses have occupied and utilized the suit parcels, as admitted by both the protestors and the respondent. That pattern of settlement demonstrates that the deceased had regard to the acreage of the parcels and the number of children in each house. I have also considered the interests of justice, and the need to preserve family harmony, peace, and tranquility. In the circumstances, this Court will adopt the mode of distribution contemplated under Section 40 of the Law of Succession Act, while taking into account that, notwithstanding the absence of a will, the deceased had substantially settled his families as aforesaid. I have further considered the interests of justice, and the need to preserve family harmony, peace, and tranquility. The daughters of the deceased, who were omitted in the proposed mode of distribution, shall be accommodated within their respective houses as beneficiaries of the estate, in accordance with the law.
22. On land parcel No. MAJOGE/BOSOTI/958 the respondent included it in the proposed mode of distribution but I have perused its search filed herein the same is clear that it is registered in the joint names of Lucia Monchari Okwoyo and Doris Monyancha Okwoyo (as at 19.12.2023). The same thus does not form part of the estate of deceased and is thus not available for distribution.
d) On Plot Ibencho Market Plot No. 12 is not available for distribution as it was sold during the deceased’s lifetime as alleged by the petitioners and not contradicted. No documentary evidence of ownership of Mesabakwa Market Plot No. 4B was availed and so it is also not available for distribution
23.The protest has thus partially succeeded . The estate of the deceased herein shall be distributed in accordance with Section 40 of the Law of Succession Act, taking into account current occupation and use. I proceed to distribute the estate as hereunder :
(a)Land Parcel No. MAJOGE/BOSOTI/839 (approximately 8.5 acres) shall be shared equally between the 1st and 3rd houses.
4.25 acres to the first house - shall thereafter be distributed in equal shares among the following beneficiaries ;
a. Teresia Bitengo Ayiecha - Daughter-in-law (ID/No. 1615632) .
b. Reuben Nyangau Omwega - Son (ID/No. 0975806)
c. Francis Onyango Omwega Ayiecha - Son (ID/No. 3105959)
d. Abigael Monyenche Omwega - Daughter (ID/No. 1617358)
Second house -4.25 acres to be shared by Pauline Nyanduko Omwega (ID/No. 7288305) & Naom Magoma Miruka - Daughter in law (ID/No. 28799737) in equal shares - Mary Nyabwari Omwega shall have a life interest on the portion of Pauline .
(b) Land parcel No. MAJOGE/BOSOTI/690 (approximately 9.0 acres) shall be inherited by the 2nd house and shall be subsequently shared equally among it’s members that ie .
a. Samwel Omwega Ayiecha - Son (ID/No. 8962659)
b. Henry Omwega - Son (ID/No. 7009441) .
c. Gideon Omwega - Son (ID/No. 10927896)
d. Tabitha Nyansiaboka - Daughter (ID/No. 8533691)
e. Zachary Gitenya Omwega - Son (ID/No. 13081581) .
f. Richard Onami Omwega - Son (ID/No. 13081581)
g. Estah Mwango Omwega - Daughter (ID/No. 20847183
h. Stephen Omwega - Son (ID/No. 21048868)
i. John Miruka Omwega - Son (ID/No. 21635923)
j. Josephine Moreira Omwega (ID/No. 23780565)
(c) Land parcel No. MAJOGE/BOSOTI/660 (approximately 1.4 ha) shall be shared equally among the three houses; each house shall retain the portions it currently occupies or uses.
d) Mesabakwa Market Plot No. 4B and Ibencho Market Plot No. 12 are not available for distribution.
e) Land parcel No. MAJOGE/BOSOTI/958 does not belong to deceased and so it is also not available for distribution.
f) The Kisii County Surveyor to visit the above parcels undertake survey in compliance with orders a-c above parties .
g)Each house shall share the costs of the visit by the surveyor .
h) The Surveyor shall file his report within 60 days from today.
i)Administration be concluded within 6 months from today.
j) This being a family matter , each party shall bear their own costs.
k) Mention on 1.10.26 to confirm completion of administration.
T.A ODERA
JUDGE
22.4.26
DELIVERED VIRTUALLY VIA TEAMS PLATFORM ON THIS 23RD DAY OF APRIL 2026 IN THE PRESENCE OF CA KIPCHIRCHIR . PARTIES ABSENT