REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT VIHIGA
SUCCESSION CAUSE NO E012 OF 2022
(FORMERLY KAKAMEGA HCSC NO 249 OF 1992)
IN THE MATTER OF THE ESTATE OF EPHRAIM BRIAN KAVAI
(DECEASED)
AND
HERBERT JUMBA KAVAI………………………………..1 ST ADMINISTRATOR
ZIPPY LODENYI KAVAI…………………………………2 ND ADMINISTRATOR
VERSUS
ROSE OSIDE KIYUNZU………………………………… OBJECTOR
RULING
INTRODUCTION
1. In a Ruling dated 6 th August 2021, Musyoka J revoked the Grant of Letters of Administration Intestate that was issued to Ebby Kanguha Kavai on 12 th October 1992 on account of her death. The learned Judge appointed the 1 st and 2 nd Administrators herein and directed them to seek confirmation of the Grant to facilitate distribution of the deceased's estate.
2. Accordingly, the 1 st Administrator filed a Summons for Confirmation of Grant dated 30 th November 2021 and filed on 2 nd December 2021. In response thereto, the 2 nd Administrator filed an Affidavit of Protest dated 15 th May 2022 on 17 th May 2022. On 30 th May 2022, the court directed the parties to file affidavits on the proposed mode of distribution. The 1 st Administrator filed an Affidavit in Support of the Summons for Confirmation of Grant and in response to the Protest dated 9 th June 2022 and filed on 15 th June 2022. The 2 nd Administrator subsequently filed a Further Affidavit dated 30 th November 2024 and filed on 2 nd December 2024 and another further Affidavit dated 10 th October 2025 and filed on 15 th October 2025.
3. The 1 st Administrator filed Written Submissions dated 3 rd October 2022 on even date. The Objector filed her Written Submissions dated 14 th October 2022 on 14 th November 2022. However, the 2 nd Administrator did not file Written Submissions herein.
4. The Ruling herein is based on the affidavit evidence and the Written Submissions which the parties relied upon in their entirety.
LEGAL ANALYSIS
5. The 1 st Administrator submitted that the deceased died intestate on 18 th June 1992 leaving behind his widow, Ebby Kanguha Kavai (now deceased), himself, the 2 nd Administrator and the Objector herein. He submitted that although the widow had obtained a Grant of Letters of Administration on 12 th October 1992 and a Certificate of Confirmation of Grant was on 24 th November 1993, in a ruling delivered on 15 th November 2001, Waweru J., , set aside the confirmation after finding that the court had failed to identify the persons beneficially entitled to the estate and their respective shares before confirming the Grant. He further submitted that the learned Judge cancelled the registration of Land Parcels North Maragoli/Gavudia/56, North Maragoli/Gavudia/515 and Bungoma/Kamokoiwa/117 ( hereinafter referred to as “the subject properties”) and ordered that they revert to deceased’s name. He averred that the only identifiable assets remaining for distribution were the subject properties, , the other assets of the estate having been wasted during the prolonged administration.
6. He averred that Land Parcel Number North Maragoli/Gavudia/515 measured approximately 0.7 hectares and comprised the family homestead where their parents and grandparents were buried. He pointed out that Ebby Kanguha Kavai (now deceased) registered Land Parcel Number North Maragoli/Gavudia/56, and Land Parcel Number North Maragoli/Gavudia/515 in his name and it was not true that he registered the same in his name once he was appointed as an administrator.
7. He stated that he sub-divided Land Parcel Number North Maragoli/Gavudia/56 to one Naphas Mulinya Asava to meet his financial obligations which was assigned Land Parcel Number 1268 and measured approximately 1.37 hectares and had continuously served as the family's ancestral home and farming land.
8. He stated at a meeting of the Vavuluge Clan that was held on 30 th December 1995 and 2 nd January 1996, it was resolved that he inherits Land Parcel Bungoma/Kamokoiwa/117 since the deceased, who was his father, had built him a house there. He stated that the 2 nd Administrator and the Objector had unlimited permission uninhibited and automatic right to access the family ancestral home situated in Land Parcel North Maragoli/Gavudia/1268.
9. He pointed out that no Valuation Reports had been filed to assist the court in coming up with a determination. He averred that the homestead and ancestral home measuring 3.7 acres and 1.7 acres respectively could not equal Land Parcel Number Bungoma/Kamokoiwa/117 which measured 17.8 acres. He, therefore, proposed that Land Parcels North Maragoli/Gavudia/515 and North Maragoli/Gavudia/56 be allocated wholly to him. Regarding Land Parcel Bungoma/Kamokoiwa/117 , he proposed that he be allocated 10.8 acres while the 2 nd Administrator and the Objector each receive 3.5 acres. He submitted that Land Parcel Bungoma/Kamokoiwa/117 was considerably more valuable than Land Parcels North Maragoli/Gavudia/515 and North Maragoli/Gavudia/56. He averred that the 2 nd Administrator and the Objector had voluntarily expressed no interest in occupying the ancestral homestead.
10. He further submitted that both the 2 nd Administrator and the Objector were married, employed as teachers and had established homes elsewhere. He argued that they neither occupied nor required the ancestral homestead for residential purposes and that they had unrestricted access to visit the family home whenever they wished. He urged the court to adopt his proposed mode of distribution as being fair to all the beneficiaries.
11. The Objector and the 2 nd Administrator were children of the deceased and were therefore entitled to inherit his estate. They relied on Section 38 of the Law of Succession Act and submitted that, following the death of the widow (sic), the estate devolved upon the surviving children. They were in agreement with the 1 st Administrator on the deceased’s assets and narrated of how he came to be in possession of Land Parcels North Maragoli/Gavudia/515 and Land Parcel North Maragoli/Gavudia/56 and how he sub-divided Land Parcel North Maragoli/Gavudia/56.
12. The Objector and the 2 nd Administrator further submitted that the 1 st Administrator had enjoyed exclusive possession of Land Parcel Number Maragoli/Gavudia/515 and had harvested tea therefrom for many years without rendering any account to the estate. They submitted that he had leased Land Parcel Bungoma/Kamokoiwa/117 to third parties and retained the proceeds exclusively. They argued that those actions amounted to intermeddling with the estate contrary to Section 45 of the Law of Succession Act.
13. Notwithstanding those complaints, the Objector and the 2 nd Administrator expressly conceded that Land Parcel North Maragoli/Gavudia/56, which comprised the ancestral home occupied by the 1 st Administrator and his family, should be allocated wholly to him. They similarly conceded that Land Parcel North Maragoli/Gavudia/515 should also devolve wholly upon him despite their contention that he had derived substantial income from its tea bushes over the years.
14. The Objector and the 2 nd Administrator however, opposed the 1 st Administrator's proposal regarding Land Parcel Bungoma/Kamokoiwa/117. They submitted that the parcel should not be distributed unequally and instead proposed that it be shared equally between them equally contending that the 1 st Administrator had already substantially benefited from the other estate properties.
15. They rejected the 1 st Administrator's proposal to allocate himself a substantially larger portion of Land Parcel Number Bungoma/Kamokoiwa/117solely because they were married and employed as it was inconsistent with Section 38 of the Law of Succession Act, which required equal distribution among surviving children where the deceased died intestate leaving no surviving spouse.
16. The Objector and the 2 nd Administrator therefore urged the court to adopt their proposed mode of distribution by allocating Land Parcel Number North Maragoli/Gavudia/515 and Land Parcel North Maragoli/Gavudia/56 wholly to the 1 st Administrator and distributing Land Parcel Bungoma/Kamokoiwa/117between them.
17. From the pleadings, affidavits, evidence on record and written submissions, the court found that there was no dispute regarding the identity of the beneficiaries. It was common ground that the deceased was survived by three (3) children, the parties herein.
18. The court was guided by Section 38 of the Law of Succession Act, which provides that: -
"Where an intestate has left a surviving child or children but no spouse, the net intestate estate shall, subject to the provisions of sections 41 and 42, devolve upon the surviving child, if there be only one, or shall be equally divided among the surviving children."
19. The provision established the general principle that where an intestate was survived only by children, the net estate devolved equally upon them unless the circumstances contemplated under Sections 41 or 42 of the Act were proved.
20. The court also had regard to Section 42 of the Law of Succession Act, which provides that: -
"Where—
(a) an intestate has, during his lifetime or by will, paid, given or settled any property to or for the benefit of a child, grandchild or house; or
(b) property has been appointed or awarded to any child or grandchild under the provisions of section 26 or section 35, that property shall be taken into account in determining the share of the net intestate estate finally accruing to that child, grandchild or house."
21. The said Section 42 of the Law of Succession Act required the court, to take a lifetime gift or advancement that had been proved into account in determining the beneficiary's ultimate entitlement.
22. The court further recognised that, under Section 71 of the Law of Succession Act, its duty at confirmation was not merely to confirm the Grant but also to satisfy itself as to the identities of all persons beneficially entitled to the estate and the respective shares to which each beneficiary was entitled before approving any proposed mode of distribution.
23. The 1 st Administrator contended that the deceased had settled him on Bungoma/Kamokoiwa/117during his lifetime and had constructed a residence for him there. He further relied upon the minutes of the Vavuluge Clan meetings held on 30 th December 1995 and 2 nd January 1996 in support of that assertion. The court carefully considered that evidence.
24. The court found, however, that the clan resolutions were made several years after the deceased's death and, therefore, did not constitute evidence of a completed gift made by the deceased during his lifetime. Apart from the assertion that the deceased had built him a house on the said land, no documentary evidence was produced showing that the deceased had transferred the property to him or had otherwise divested himself of ownership before his death.
25. In the case of Rono v Rono & Another [2005] 1 EA 363 where the Court of Appeal held that the Law of Succession Act embodied the principle of equality among children and that discrimination based on gender or marital status had no place in succession proceedings. Similarly, in Re Estate of M'Ngarithi M'Miriti (Deceased) [2017] eKLR, the High Court reaffirmed that sons and daughters ranked equally in inheritance and that equality under the Constitution reinforced the provisions of the Law of Succession Act.
26. The court was further guided by Re Estate of Lerionka Ole Ntutu (Deceased) [2019] eKLR where the court held that customary considerations could not override the provisions of the Law of Succession Act and Article 27 of the Constitution. The fact that a beneficiary was married, employed or financially stable did not constitute a lawful basis for reducing that beneficiary's entitlement to inherit from a parent's estate.
27. Applying those principles, the court found that the 1 st Administrator had not proved that Land Parcel Number Bungoma/Kamokoiwa/117had been gifted to him during the deceased's lifetime within the meaning of Section 42 of the Act. Consequently, the parcel remained part of the net intestate estate available for distribution under Section 38.
28. The court nevertheless observed that both the 2 nd Administrator and the Objector had consistently stated, both in their Affidavit of Protest and in their written submissions, that Land Parcel Number North Maragoli/Gavudia/515 and Land Parcel Number North Maragoli/Gavudia/56 should devolve wholly upon the 1 st Administrator. They expressly acknowledged that Land Parcel Number North Maragoli/Gavudia/56 56 comprised the ancestral home occupied by the 1 st Administrator and his family, while Land Parcel Number North Maragoli/Gavudia/515 contained the family homestead and tea bushes that had remained under his occupation.
29. The court found that the concession made by the 2 nd Administrator and the Objector was voluntary, unequivocal and was consistently maintained throughout the proceedings. There was no allegation that the concession had been procured by fraud, coercion or undue influence. As competent adult beneficiaries were entitled to agree on the distribution of an estate among themselves, the court found no reason to reject the consensus reached regarding those two parcels.
30. The dispute therefore narrowed to Bungoma/Kamokoiwa/117. The court found that neither party's proposal accorded with Section 38 of the Law of Succession Act. The 2 nd Administrator’s and Objectors' proposal would exclude the 1 st Administrator altogether from that parcel despite his status as a surviving child of the deceased. Conversely, the 1 st Administrator's proposal would have awarded him a substantially larger share without proof of a gift inter vivos or any other legal basis warranting departure from the principle of equality.
31. The court consequently found that there was no lawful justification for distributing Land Reference Number Bungoma/Kamokoiwa/117 otherwise than equally among the three (3) surviving children. Such distribution accorded with Section 38 of the Law of Succession Act and the constitutional principle of equality.
32. Having considered the evidence, the law and the rival proposals, the court found that the mode of distribution that best gave effect to both the beneficiaries' consensus and the mandatory provisions of the Law of Succession Act was one that preserved the parties' agreement regarding the ancestral properties while distributing the remaining parcel equally among all the beneficiaries.
33. Accordingly, the court determined that Land Parcel North Maragoli/Gavudia/515 shall devolve wholly upon the 1 st Administrator , Land Parcel Number North Maragoli/Gavudia/56 shall devolve wholly upon the 1 st Administrator , and Land Parcel Number Bungoma/Kamokoiwa/117shall devolve in equal shares to the 1 st Administrator, the 2 nd Administrator and the Objector.
34. The court found that the foregoing mode of distribution recognised the voluntary wishes of the beneficiaries regarding the ancestral homestead while ensuring that the remaining estate was distributed in accordance with Section 38 of the Law of Succession Act and the applicable legal principles governing intestate succession.
DISPOSITION
35. For the foregoing reasons, the upshot of this court’s decision was that the Summons for Confirmation of Grant dated 30 th November 2021 was merited and is hereby allowed in the following terms: -
1. THAT the Grant of Letters of Administration Intestate issued to Herbert Jumba Kavai and Zipporah Lodenyi Kavai on 30 th August 2021 be and is hereby confirmed.
2. THAT the estate of the deceased, comprising Land Parcel Numbers North Maragoli/Gavudia/515, North Maragoli/Gavudia/56 And Bungoma/Kamokoiwa/117, shall be distributed as follows: -
a) Land Parcel North Maragoli/Gavudia/515 shall devolve wholly upon Herbert Jumba Kavai.
b) Land Parcel North Maragoli/Gavudia/56 shall devolve wholly upon Herbert Jumba Kavai.
c) Land Parcel Bungoma/Kamokoiwa/117 shall devolve in equal shares to Herbert Jumba Kavai, Rose Oside Kiyunzu and Zipporah Lodenyi Kavai.
36. As this was a family matter and not to escalate any tensions and bad blood, this court deviated from the general principle that costs follow the event and hereby directs that each party will bear its own costs.
37. It is so ordered.
DATED and DELIVERED at VIHIGA this 30 th day of July 2026
J. KAMAU
JUDGE
HCFP& A cause no 12 of 20228
IN THE HIGH COURT OF KENYA AT VIHIGA
SUCCESSION CAUSE NO E012 OF 2022
(FORMERLY KAKAMEGA HCSC NO 249 OF 1992)
IN THE MATTER OF THE ESTATE OF EPHRAIM BRIAN KAVAI
(DECEASED)
AND
HERBERT JUMBA KAVAI………………………………..1 ST ADMINISTRATOR
ZIPPY LODENYI KAVAI…………………………………2 ND ADMINISTRATOR
VERSUS
ROSE OSIDE KIYUNZU………………………………… OBJECTOR
RULING
INTRODUCTION
1. In a Ruling dated 6 th August 2021, Musyoka J revoked the Grant of Letters of Administration Intestate that was issued to Ebby Kanguha Kavai on 12 th October 1992 on account of her death. The learned Judge appointed the 1 st and 2 nd Administrators herein and directed them to seek confirmation of the Grant to facilitate distribution of the deceased's estate.
2. Accordingly, the 1 st Administrator filed a Summons for Confirmation of Grant dated 30 th November 2021 and filed on 2 nd December 2021. In response thereto, the 2 nd Administrator filed an Affidavit of Protest dated 15 th May 2022 on 17 th May 2022. On 30 th May 2022, the court directed the parties to file affidavits on the proposed mode of distribution. The 1 st Administrator filed an Affidavit in Support of the Summons for Confirmation of Grant and in response to the Protest dated 9 th June 2022 and filed on 15 th June 2022. The 2 nd Administrator subsequently filed a Further Affidavit dated 30 th November 2024 and filed on 2 nd December 2024 and another further Affidavit dated 10 th October 2025 and filed on 15 th October 2025.
3. The 1 st Administrator filed Written Submissions dated 3 rd October 2022 on even date. The Objector filed her Written Submissions dated 14 th October 2022 on 14 th November 2022. However, the 2 nd Administrator did not file Written Submissions herein.
4. The Ruling herein is based on the affidavit evidence and the Written Submissions which the parties relied upon in their entirety.
LEGAL ANALYSIS
5. The 1 st Administrator submitted that the deceased died intestate on 18 th June 1992 leaving behind his widow, Ebby Kanguha Kavai (now deceased), himself, the 2 nd Administrator and the Objector herein. He submitted that although the widow had obtained a Grant of Letters of Administration on 12 th October 1992 and a Certificate of Confirmation of Grant was on 24 th November 1993, in a ruling delivered on 15 th November 2001, Waweru J., , set aside the confirmation after finding that the court had failed to identify the persons beneficially entitled to the estate and their respective shares before confirming the Grant. He further submitted that the learned Judge cancelled the registration of Land Parcels North Maragoli/Gavudia/56, North Maragoli/Gavudia/515 and Bungoma/Kamokoiwa/117 ( hereinafter referred to as “the subject properties”) and ordered that they revert to deceased’s name. He averred that the only identifiable assets remaining for distribution were the subject properties, , the other assets of the estate having been wasted during the prolonged administration.
6. He averred that Land Parcel Number North Maragoli/Gavudia/515 measured approximately 0.7 hectares and comprised the family homestead where their parents and grandparents were buried. He pointed out that Ebby Kanguha Kavai (now deceased) registered Land Parcel Number North Maragoli/Gavudia/56, and Land Parcel Number North Maragoli/Gavudia/515 in his name and it was not true that he registered the same in his name once he was appointed as an administrator.
7. He stated that he sub-divided Land Parcel Number North Maragoli/Gavudia/56 to one Naphas Mulinya Asava to meet his financial obligations which was assigned Land Parcel Number 1268 and measured approximately 1.37 hectares and had continuously served as the family's ancestral home and farming land.
8. He stated at a meeting of the Vavuluge Clan that was held on 30 th December 1995 and 2 nd January 1996, it was resolved that he inherits Land Parcel Bungoma/Kamokoiwa/117 since the deceased, who was his father, had built him a house there. He stated that the 2 nd Administrator and the Objector had unlimited permission uninhibited and automatic right to access the family ancestral home situated in Land Parcel North Maragoli/Gavudia/1268.
9. He pointed out that no Valuation Reports had been filed to assist the court in coming up with a determination. He averred that the homestead and ancestral home measuring 3.7 acres and 1.7 acres respectively could not equal Land Parcel Number Bungoma/Kamokoiwa/117 which measured 17.8 acres. He, therefore, proposed that Land Parcels North Maragoli/Gavudia/515 and North Maragoli/Gavudia/56 be allocated wholly to him. Regarding Land Parcel Bungoma/Kamokoiwa/117 , he proposed that he be allocated 10.8 acres while the 2 nd Administrator and the Objector each receive 3.5 acres. He submitted that Land Parcel Bungoma/Kamokoiwa/117 was considerably more valuable than Land Parcels North Maragoli/Gavudia/515 and North Maragoli/Gavudia/56. He averred that the 2 nd Administrator and the Objector had voluntarily expressed no interest in occupying the ancestral homestead.
10. He further submitted that both the 2 nd Administrator and the Objector were married, employed as teachers and had established homes elsewhere. He argued that they neither occupied nor required the ancestral homestead for residential purposes and that they had unrestricted access to visit the family home whenever they wished. He urged the court to adopt his proposed mode of distribution as being fair to all the beneficiaries.
11. The Objector and the 2 nd Administrator were children of the deceased and were therefore entitled to inherit his estate. They relied on Section 38 of the Law of Succession Act and submitted that, following the death of the widow (sic), the estate devolved upon the surviving children. They were in agreement with the 1 st Administrator on the deceased’s assets and narrated of how he came to be in possession of Land Parcels North Maragoli/Gavudia/515 and Land Parcel North Maragoli/Gavudia/56 and how he sub-divided Land Parcel North Maragoli/Gavudia/56.
12. The Objector and the 2 nd Administrator further submitted that the 1 st Administrator had enjoyed exclusive possession of Land Parcel Number Maragoli/Gavudia/515 and had harvested tea therefrom for many years without rendering any account to the estate. They submitted that he had leased Land Parcel Bungoma/Kamokoiwa/117 to third parties and retained the proceeds exclusively. They argued that those actions amounted to intermeddling with the estate contrary to Section 45 of the Law of Succession Act.
13. Notwithstanding those complaints, the Objector and the 2 nd Administrator expressly conceded that Land Parcel North Maragoli/Gavudia/56, which comprised the ancestral home occupied by the 1 st Administrator and his family, should be allocated wholly to him. They similarly conceded that Land Parcel North Maragoli/Gavudia/515 should also devolve wholly upon him despite their contention that he had derived substantial income from its tea bushes over the years.
14. The Objector and the 2 nd Administrator however, opposed the 1 st Administrator's proposal regarding Land Parcel Bungoma/Kamokoiwa/117. They submitted that the parcel should not be distributed unequally and instead proposed that it be shared equally between them equally contending that the 1 st Administrator had already substantially benefited from the other estate properties.
15. They rejected the 1 st Administrator's proposal to allocate himself a substantially larger portion of Land Parcel Number Bungoma/Kamokoiwa/117solely because they were married and employed as it was inconsistent with Section 38 of the Law of Succession Act, which required equal distribution among surviving children where the deceased died intestate leaving no surviving spouse.
16. The Objector and the 2 nd Administrator therefore urged the court to adopt their proposed mode of distribution by allocating Land Parcel Number North Maragoli/Gavudia/515 and Land Parcel North Maragoli/Gavudia/56 wholly to the 1 st Administrator and distributing Land Parcel Bungoma/Kamokoiwa/117between them.
17. From the pleadings, affidavits, evidence on record and written submissions, the court found that there was no dispute regarding the identity of the beneficiaries. It was common ground that the deceased was survived by three (3) children, the parties herein.
18. The court was guided by Section 38 of the Law of Succession Act, which provides that: -
"Where an intestate has left a surviving child or children but no spouse, the net intestate estate shall, subject to the provisions of sections 41 and 42, devolve upon the surviving child, if there be only one, or shall be equally divided among the surviving children."
19. The provision established the general principle that where an intestate was survived only by children, the net estate devolved equally upon them unless the circumstances contemplated under Sections 41 or 42 of the Act were proved.
20. The court also had regard to Section 42 of the Law of Succession Act, which provides that: -
"Where—
(a) an intestate has, during his lifetime or by will, paid, given or settled any property to or for the benefit of a child, grandchild or house; or
(b) property has been appointed or awarded to any child or grandchild under the provisions of section 26 or section 35, that property shall be taken into account in determining the share of the net intestate estate finally accruing to that child, grandchild or house."
21. The said Section 42 of the Law of Succession Act required the court, to take a lifetime gift or advancement that had been proved into account in determining the beneficiary's ultimate entitlement.
22. The court further recognised that, under Section 71 of the Law of Succession Act, its duty at confirmation was not merely to confirm the Grant but also to satisfy itself as to the identities of all persons beneficially entitled to the estate and the respective shares to which each beneficiary was entitled before approving any proposed mode of distribution.
23. The 1 st Administrator contended that the deceased had settled him on Bungoma/Kamokoiwa/117during his lifetime and had constructed a residence for him there. He further relied upon the minutes of the Vavuluge Clan meetings held on 30 th December 1995 and 2 nd January 1996 in support of that assertion. The court carefully considered that evidence.
24. The court found, however, that the clan resolutions were made several years after the deceased's death and, therefore, did not constitute evidence of a completed gift made by the deceased during his lifetime. Apart from the assertion that the deceased had built him a house on the said land, no documentary evidence was produced showing that the deceased had transferred the property to him or had otherwise divested himself of ownership before his death.
25. In the case of Rono v Rono & Another [2005] 1 EA 363 where the Court of Appeal held that the Law of Succession Act embodied the principle of equality among children and that discrimination based on gender or marital status had no place in succession proceedings. Similarly, in Re Estate of M'Ngarithi M'Miriti (Deceased) [2017] eKLR, the High Court reaffirmed that sons and daughters ranked equally in inheritance and that equality under the Constitution reinforced the provisions of the Law of Succession Act.
26. The court was further guided by Re Estate of Lerionka Ole Ntutu (Deceased) [2019] eKLR where the court held that customary considerations could not override the provisions of the Law of Succession Act and Article 27 of the Constitution. The fact that a beneficiary was married, employed or financially stable did not constitute a lawful basis for reducing that beneficiary's entitlement to inherit from a parent's estate.
27. Applying those principles, the court found that the 1 st Administrator had not proved that Land Parcel Number Bungoma/Kamokoiwa/117had been gifted to him during the deceased's lifetime within the meaning of Section 42 of the Act. Consequently, the parcel remained part of the net intestate estate available for distribution under Section 38.
28. The court nevertheless observed that both the 2 nd Administrator and the Objector had consistently stated, both in their Affidavit of Protest and in their written submissions, that Land Parcel Number North Maragoli/Gavudia/515 and Land Parcel Number North Maragoli/Gavudia/56 should devolve wholly upon the 1 st Administrator. They expressly acknowledged that Land Parcel Number North Maragoli/Gavudia/56 56 comprised the ancestral home occupied by the 1 st Administrator and his family, while Land Parcel Number North Maragoli/Gavudia/515 contained the family homestead and tea bushes that had remained under his occupation.
29. The court found that the concession made by the 2 nd Administrator and the Objector was voluntary, unequivocal and was consistently maintained throughout the proceedings. There was no allegation that the concession had been procured by fraud, coercion or undue influence. As competent adult beneficiaries were entitled to agree on the distribution of an estate among themselves, the court found no reason to reject the consensus reached regarding those two parcels.
30. The dispute therefore narrowed to Bungoma/Kamokoiwa/117. The court found that neither party's proposal accorded with Section 38 of the Law of Succession Act. The 2 nd Administrator’s and Objectors' proposal would exclude the 1 st Administrator altogether from that parcel despite his status as a surviving child of the deceased. Conversely, the 1 st Administrator's proposal would have awarded him a substantially larger share without proof of a gift inter vivos or any other legal basis warranting departure from the principle of equality.
31. The court consequently found that there was no lawful justification for distributing Land Reference Number Bungoma/Kamokoiwa/117 otherwise than equally among the three (3) surviving children. Such distribution accorded with Section 38 of the Law of Succession Act and the constitutional principle of equality.
32. Having considered the evidence, the law and the rival proposals, the court found that the mode of distribution that best gave effect to both the beneficiaries' consensus and the mandatory provisions of the Law of Succession Act was one that preserved the parties' agreement regarding the ancestral properties while distributing the remaining parcel equally among all the beneficiaries.
33. Accordingly, the court determined that Land Parcel North Maragoli/Gavudia/515 shall devolve wholly upon the 1 st Administrator , Land Parcel Number North Maragoli/Gavudia/56 shall devolve wholly upon the 1 st Administrator , and Land Parcel Number Bungoma/Kamokoiwa/117shall devolve in equal shares to the 1 st Administrator, the 2 nd Administrator and the Objector.
34. The court found that the foregoing mode of distribution recognised the voluntary wishes of the beneficiaries regarding the ancestral homestead while ensuring that the remaining estate was distributed in accordance with Section 38 of the Law of Succession Act and the applicable legal principles governing intestate succession.
DISPOSITION
35. For the foregoing reasons, the upshot of this court’s decision was that the Summons for Confirmation of Grant dated 30 th November 2021 was merited and is hereby allowed in the following terms: -
1. THAT the Grant of Letters of Administration Intestate issued to Herbert Jumba Kavai and Zipporah Lodenyi Kavai on 30 th August 2021 be and is hereby confirmed.
2. THAT the estate of the deceased, comprising Land Parcel Numbers North Maragoli/Gavudia/515, North Maragoli/Gavudia/56 And Bungoma/Kamokoiwa/117, shall be distributed as follows: -
a) Land Parcel North Maragoli/Gavudia/515 shall devolve wholly upon Herbert Jumba Kavai.
b) Land Parcel North Maragoli/Gavudia/56 shall devolve wholly upon Herbert Jumba Kavai.
c) Land Parcel Bungoma/Kamokoiwa/117 shall devolve in equal shares to Herbert Jumba Kavai, Rose Oside Kiyunzu and Zipporah Lodenyi Kavai.
36. As this was a family matter and not to escalate any tensions and bad blood, this court deviated from the general principle that costs follow the event and hereby directs that each party will bear its own costs.
37. It is so ordered.
DATED and DELIVERED at VIHIGA this 30 th day of July 2026
J. KAMAU
JUDGE
HCFP& A cause no 12 of 20228