'1. This ruling pertains to the distribution of the deceased''s estate pursuant to protest proceedings in which the court held that L.R. No. KAKAMEGA/SHITOCHI/1064 and L.R. No. KAKAMEGA/VIREMBE/761 form part of the estate of the deceased.
2. The court deferred the confirmation of grant and directed that the Administrators file a letter from the Area Chief listing all the deceased''s male and female children. The court further directed that if the daughters of the deceased have no interest in the estate, they should file affidavits to renounce their claims.
3. In compliance with the court’s directions, the Administrators filed a letter dated 16th June 2025 from the Chief, Shihuli Location, in which he stated that the deceased had the following dependants:-
(i) Clement Boyia (out-grower son)
(ii) Clement Luchitio (son)
(iii) Sebenzia Lihabi Peter (daughter)
(iv) Alexander Muhembe Ligabo (son)
(v) Mary Achitsa Ligabo (daughter)
(vi) Margaret Khati Nandwa (daughter)
4. The daughters Margaret Khati Nandwa, Sebenzia Lihabi Peter, and Mary Achitsa Ingusu also swore affidavits in which each confirmed that they had no interest in the deceased''s estate.
5. On 23rd July 2025, the daughters of the deceased also attended court physically, and Ms. Mburu submitted that they had filed their affidavits as required by the court. The daughters also confirmed that they did not have any interest in the deceased''s estate. According to them, the deceased had distributed his land to his sons during his lifetime, and they did not intend to disturb the distribution.
6. The court is now tasked with distributing the deceased''s estate. The court’s duty is made lighter by the fact that the court found that the deceased had not distributed his land during his lifetime. The beneficiaries of his estate are three: Clement Luchitio Likavo, Alexander Muhambe, and Judith Nyawina, who represents Clement Boyia Likabo.
7. L. R. No. KAKAMEGA/SHITOCHI/1064 comprises 0.7 hectares, while L. R. No. KAKAMEGA/VIREMBE/761 comprises 0.9 hectares.
8. From the record, the land comprised in L. R. No. KAKAMEGA/SHITOCHI/1064 had been distributed pursuant to a Grant confirmed on 22nd February 2020, which was later revoked.
9. The Constitution of Kenya vide Article 27 embeds the principle of non-discrimination of persons and provides that:-
“27. Equality and freedom from discrimination
(1) Every person is equal before the law and has the right to equal protection and equal benefit of the law.
(2) Equality includes the full and equal enjoyment of all rights and fundamental freedoms.
(3) Women and men have the right to equal treatment, including the right to equal opportunities in political, economic, cultural and social spheres.
(4) The State shall not discriminate directly or indirectly against any person on any ground, including race, sex, pregnancy, marital status, health status, ethnic or social origin, colour, age, disability, religion, conscience, belief, culture, dress, language or birth.
(5) A person shall not discriminate directly or indirectly against another person on any of the grounds specified or contemplated in clause (4).”
10. Therefore, by dint of the Constitution, Clement Boyia Likabo, referred to by the rest of his siblings as “an out grower” because he is a stepbrother, is guaranteed equal treatment and the benefit of the law. Article 27 (5) enjoins the court to protect the “out grower” from discrimination which is founded on the fact that his mother was not married to the deceased at the time of his birth.
11. More significantly, the Law of Succession Act, which was enacted in 1972, long before the current Constitution, does not countenance the discrimination of biological children of a deceased person in matters of inheritance. Section 3 (2) and (3) of the Act defines a child as:-
“(2)References in this Act to "child"or "children" shall include a child conceived but not yet born (as long as that child is subsequently born alive) and, in relation to a female person, any child born to her out of wedlock, and, in relation to a male person, any child whom he has expressly recognized or in fact accepted as a child of his own or for whom he has voluntarily assumed permanent responsibility.
(3)A child born to a female person out of wedlock, and a child as defined by subsection (2) as the child of a male person, shall have relationship to other persons through her or him as though the child had been born to her or him in wedlock.”
12. Given the above, it is apparent that all three of the deceased''s sons must be treated equally when considering the distribution of their father’s estate, as it was not disputed that the alleged out grower was a biological son whom the deceased had recognized in his lifetime.
13. Under Section 38 of the Law of Succession Act, where the surviving dependents of the deceased are only children, the estate should devolve equally to them.
14. It is well settled that the court has the discretion to distribute the estate of a deceased person where the Beneficiaries are not in consensus. The distribution need not necessarily be equal and depends on the unique circumstances of each cause. However, the distribution must be equitable.
15. The three Beneficiaries of the deceased failed to find a common ground concerning how the deceased''s estate should be distributed. The third Administrator urged the court to allocate the Shitochi land to her on behalf of Clement Boyia Likabo, while the Virembe land devolves to the 1st and 2nd Administrators. She urged that it would ostensibly cover for the deceased’s absence in her late husband’s life to compensate for the paternal love that he was never accorded. She further urged the court that, in the event the court finds Section 40 of the Law of Succession Act applicable, then it should allocate shares to the parties in accordance with their current occupation and development. The Applicant’s plea is not tenable as failure to accord a child the necessary paternal love does not constitute grounds for enhancement of the child’s share in the father’s estate.
16. I have carefully considered the issue of distribution and the submissions made earlier by the parties. It was not disputed that the 1st and 2nd Administrators had sold their shares in L.R. No. KAKAMEGA/SHITOCHI/1064 to the 1st Protestor upon confirmation of the original grant and that the said Purchaser has been in occupation of the said land to date. The 2nd Protestor averred that he and his brother had sold their share of land to the 1st Protestor and Margaret Masitsa Luchesi. However, it was not clear how much land was transferred to each of the purchasers. It was also not disputed that the market value of the two parcels of land comprising the deceased''s estate is disparate. Therefore, to ensure equity, each Beneficiary should get a share in the two parcels of land.
17. Ultimately, I make the following orders regarding distribution:-
(a) L. R. No. KAKAMEGA/SHITOCHI/1064
(i) Judith Nyawina as legal representative of Clement Boyia Likabo (deceased) – one-third share.
(ii) Clement Luchitio Likabo and Alexander Muhembe Likabo – two-thirds share (to hold in trust for Fredrick Muhanji Mangala and Margaret Masitsa Luchesi according to the acreage purchased by each of them).
(b) L. R. No. KAKAMEGA/VIREMBE/761
(i) Judith Nyawina as legal representative of Clement Boyia Likabo (deceased) – Equal Share.
(ii) Clement Luchitio Likabo – Equal Share.
(iii) Alexander Muhembe Likabo – equal share
(c) The survey and subdivision of the two parcels of land shall be done per the current occupation and development on the land.
(d) A fresh Grant and Certificate of Confirmation of Grant shall issue to Clement Luchitio Likabo, Alexander Muhembe Likabo and Judith Nyawina
(e) There shall be no order as to costs, as this is a family matter.
'
2. The court deferred the confirmation of grant and directed that the Administrators file a letter from the Area Chief listing all the deceased''s male and female children. The court further directed that if the daughters of the deceased have no interest in the estate, they should file affidavits to renounce their claims.
3. In compliance with the court’s directions, the Administrators filed a letter dated 16th June 2025 from the Chief, Shihuli Location, in which he stated that the deceased had the following dependants:-
(i) Clement Boyia (out-grower son)
(ii) Clement Luchitio (son)
(iii) Sebenzia Lihabi Peter (daughter)
(iv) Alexander Muhembe Ligabo (son)
(v) Mary Achitsa Ligabo (daughter)
(vi) Margaret Khati Nandwa (daughter)
4. The daughters Margaret Khati Nandwa, Sebenzia Lihabi Peter, and Mary Achitsa Ingusu also swore affidavits in which each confirmed that they had no interest in the deceased''s estate.
5. On 23rd July 2025, the daughters of the deceased also attended court physically, and Ms. Mburu submitted that they had filed their affidavits as required by the court. The daughters also confirmed that they did not have any interest in the deceased''s estate. According to them, the deceased had distributed his land to his sons during his lifetime, and they did not intend to disturb the distribution.
6. The court is now tasked with distributing the deceased''s estate. The court’s duty is made lighter by the fact that the court found that the deceased had not distributed his land during his lifetime. The beneficiaries of his estate are three: Clement Luchitio Likavo, Alexander Muhambe, and Judith Nyawina, who represents Clement Boyia Likabo.
7. L. R. No. KAKAMEGA/SHITOCHI/1064 comprises 0.7 hectares, while L. R. No. KAKAMEGA/VIREMBE/761 comprises 0.9 hectares.
8. From the record, the land comprised in L. R. No. KAKAMEGA/SHITOCHI/1064 had been distributed pursuant to a Grant confirmed on 22nd February 2020, which was later revoked.
9. The Constitution of Kenya vide Article 27 embeds the principle of non-discrimination of persons and provides that:-
“27. Equality and freedom from discrimination
(1) Every person is equal before the law and has the right to equal protection and equal benefit of the law.
(2) Equality includes the full and equal enjoyment of all rights and fundamental freedoms.
(3) Women and men have the right to equal treatment, including the right to equal opportunities in political, economic, cultural and social spheres.
(4) The State shall not discriminate directly or indirectly against any person on any ground, including race, sex, pregnancy, marital status, health status, ethnic or social origin, colour, age, disability, religion, conscience, belief, culture, dress, language or birth.
(5) A person shall not discriminate directly or indirectly against another person on any of the grounds specified or contemplated in clause (4).”
10. Therefore, by dint of the Constitution, Clement Boyia Likabo, referred to by the rest of his siblings as “an out grower” because he is a stepbrother, is guaranteed equal treatment and the benefit of the law. Article 27 (5) enjoins the court to protect the “out grower” from discrimination which is founded on the fact that his mother was not married to the deceased at the time of his birth.
11. More significantly, the Law of Succession Act, which was enacted in 1972, long before the current Constitution, does not countenance the discrimination of biological children of a deceased person in matters of inheritance. Section 3 (2) and (3) of the Act defines a child as:-
“(2)References in this Act to "child"or "children" shall include a child conceived but not yet born (as long as that child is subsequently born alive) and, in relation to a female person, any child born to her out of wedlock, and, in relation to a male person, any child whom he has expressly recognized or in fact accepted as a child of his own or for whom he has voluntarily assumed permanent responsibility.
(3)A child born to a female person out of wedlock, and a child as defined by subsection (2) as the child of a male person, shall have relationship to other persons through her or him as though the child had been born to her or him in wedlock.”
12. Given the above, it is apparent that all three of the deceased''s sons must be treated equally when considering the distribution of their father’s estate, as it was not disputed that the alleged out grower was a biological son whom the deceased had recognized in his lifetime.
13. Under Section 38 of the Law of Succession Act, where the surviving dependents of the deceased are only children, the estate should devolve equally to them.
14. It is well settled that the court has the discretion to distribute the estate of a deceased person where the Beneficiaries are not in consensus. The distribution need not necessarily be equal and depends on the unique circumstances of each cause. However, the distribution must be equitable.
15. The three Beneficiaries of the deceased failed to find a common ground concerning how the deceased''s estate should be distributed. The third Administrator urged the court to allocate the Shitochi land to her on behalf of Clement Boyia Likabo, while the Virembe land devolves to the 1st and 2nd Administrators. She urged that it would ostensibly cover for the deceased’s absence in her late husband’s life to compensate for the paternal love that he was never accorded. She further urged the court that, in the event the court finds Section 40 of the Law of Succession Act applicable, then it should allocate shares to the parties in accordance with their current occupation and development. The Applicant’s plea is not tenable as failure to accord a child the necessary paternal love does not constitute grounds for enhancement of the child’s share in the father’s estate.
16. I have carefully considered the issue of distribution and the submissions made earlier by the parties. It was not disputed that the 1st and 2nd Administrators had sold their shares in L.R. No. KAKAMEGA/SHITOCHI/1064 to the 1st Protestor upon confirmation of the original grant and that the said Purchaser has been in occupation of the said land to date. The 2nd Protestor averred that he and his brother had sold their share of land to the 1st Protestor and Margaret Masitsa Luchesi. However, it was not clear how much land was transferred to each of the purchasers. It was also not disputed that the market value of the two parcels of land comprising the deceased''s estate is disparate. Therefore, to ensure equity, each Beneficiary should get a share in the two parcels of land.
17. Ultimately, I make the following orders regarding distribution:-
(a) L. R. No. KAKAMEGA/SHITOCHI/1064
(i) Judith Nyawina as legal representative of Clement Boyia Likabo (deceased) – one-third share.
(ii) Clement Luchitio Likabo and Alexander Muhembe Likabo – two-thirds share (to hold in trust for Fredrick Muhanji Mangala and Margaret Masitsa Luchesi according to the acreage purchased by each of them).
(b) L. R. No. KAKAMEGA/VIREMBE/761
(i) Judith Nyawina as legal representative of Clement Boyia Likabo (deceased) – Equal Share.
(ii) Clement Luchitio Likabo – Equal Share.
(iii) Alexander Muhembe Likabo – equal share
(c) The survey and subdivision of the two parcels of land shall be done per the current occupation and development on the land.
(d) A fresh Grant and Certificate of Confirmation of Grant shall issue to Clement Luchitio Likabo, Alexander Muhembe Likabo and Judith Nyawina
(e) There shall be no order as to costs, as this is a family matter.
'