REPUBLIC OF KENYA
IN THE HGH COURT OF KENYA
AT BUNGOMA
SUCCESSION CAUSE NO. 4 OF 2008
IN THE ESTATE OF JOSEPH MAINJA MALIMAE (DECEASED)
OSCAR KIBERENGE NALIMAE……………….…1ST ADMINISTRATOR
VERSUS
IRENE N. NALIMAE……………..2ND ADMINISTRATOR/PROTESTOR
SCHOLASTICA C. WAMETE……..2ND ADMINISTRATOR/OBJECTOR
JUDGEMENT
Introduction
1. The deceased herein, Joseph Mainja Nalimae, died intestate on 1st August 2006, and his estate comprised of the following assets: Land Parcels No. East Bukusu/North Nalondo/275 and East Bukusu/North Nalondo/283.
2. The deceased was survived by: Mary Nafula, Mary Nagila Mainja, Irene Nalika Nalimae, George Kiberenge Nalimae, Kenneth Kiberenge Nalimae, Ronald Taracha Nalimae, Oscar Wanjala Nalimae, Eric Nyongesa Nalimae, Dennis Simiyu Nalimae, Billy Nalimae, Felishan Nalimae, Amos Nalimae and Scholastic Chemari Wambete
3. The estate of the deceased herein was indicated as indebted to the following persons: Francis Wabwile, Justus Mukhula Kisabuli and Mr. Masalange.
4. The Grant of Letters of Administration were issued to Kenneth Kiberenge Nalimae on 14th January 2009.
5. When the matter came up for Confirmation of Grant, there was a discord on the proposed mode of sharing with the 3rd Administrator herein objecting to the proposal to have her son get 0.5 acres only.
6. Vide a ruling issued by this Court on 8th October 2012, where this Court found that the then Administrator had relinquished his role as an Administrator to the estate of the deceased herein and the Court directed the beneficiaries of the estate of the deceased to appoint another Administrator(s).
7. On 20th November 2015, fresh Grant of Letters of Administration were made out to Kenneth Kiberenge Nalimae, Scholastic Chemari Wambete and Irene Naliaka Nalimae.
8. On 24th February 2017, the 2nd and 3rd Administrators herein sought the orders of this Court to have a County Surveyor visit the site to establish and confirm the exact acreage of each beneficiary to the estate of the deceased as per the demarcations on both assets belonging to the estate of the deceased.
9. Vide Orders issued on 3rd October 2017, by Ali-Aroni J. (as she was then) this Court directed the County Surveyor to visit, establish and confirm the acreage of each beneficiary to the estate of the deceased as per the demarcations made by the deceased on both parcels of land belonging to the estate of the deceased.
10. Subject to the demise of the 1st Administrator to the estate of the deceased, this Court under the stewardship of Justice David Kemei issued Orders on 21st September 2022, substituting Kenneth Kiberenge Nalimae who passed away on 4th November 2019 with Nalimae Oscar Wanjala.
11. On 16th March 2023, the County Surveyor Bungoma filed the survey report dated 26th February 2023. He noted that the assets comprising of the estate of the deceased herein were settled as follows:
Land Parcel East Bukusu/North Nalondo /275
a. Oscar Wanjala Nalimae -1.90 Ha
b. Dennis Simiyu Nalimae-2.00 Ha
c. Erick Nyongesa Nalimae-1.60 Ha
d. Scholastic Chemari Nalimae-1.70 Ha
e. Irene Naliaka Nalimae-1.70 Ha
f. Justus K. Mukhula-2.72 Ha
g. 5.84 Ha remained as the portion for the deceased.
Land Parcel East Bukusu/North Nalondo /283
a. Kenneth Kiberenge Nalimae-3.0 Ha
b. Edith Nafula Nalimae-1.60 Ha
c. Ronald Taracha Nalimae-1.70 Ha
Application
1. Vide Summons of Confirmation of Grant dated 6th November 2023, the 1st Administrator herein pursuant to Section 71 of the Law of Succession Act and Rule 40(2) of the Probate and Administration Rules sought the Confirmation of the Grant of Letters of Administration issued on 8th October 2015.
2. The gist of the application is premised on the grounds on the face of it and the Supporting Affidavit sworn by Oscar Nalimae Wanjala, the 1st Administrator herein, on the even date. According to him, the six months post issuance of the Grant have already lapsed and as per the annexed proposed mode of distribution dated 19th October 2023, the beneficiaries to the estate of the deceased were in concurrence of how he wishes the estate of the deceased to be distributed as depicted hereunder:
Land Parcel No. East Bukusu/North Nalondo/275
NO. BENEFICIARY’S NAME SHARE (HA)
1. Dennis Simiyu Nalimae 2 HA
2. Oscar Wanjala Nalimae 1.90 HA
3. Erick Nyongesa Nalimae 1.60 HA
4. Pongola Secondary School-purchased from Irene Naliaka (widow to the deceased) 0.4 HA
5. Elizabeth Machuma Wanjala purchased from Scholastic Chemari (widow to the deceased) 0.2 HA
6. Justus K. Mukhula 2.72 HA
7. Benjamin Kitayi Masalange 0.70 HA
Given to the daughters of the deceased and was sold off as follows based on the agreements. 5.84 HA
8. Benjamin Wabwile Biketi (purchaser) 0.4 HA
9. Pius Walubengo Mumiuka (purchaser) 1.2 HA
10. Cornelius Wanjala (purchaser) 0.10 HA
11. Benjamin Kitayi (purchaser) 0.8 HA
12. Dismas Kisiangani (purchaser) 0.8 HA
13. Francis Barasa Wanyonyi (purchaser) 0.8 HA
14. Cornelius W. Wanjala (purchaser) 0.8 HA
15. Cleophas Khisa Kwanusu (purchaser) 0.81 HA
16. Moses Wanjala Wamalwa (purchaser) 1.6 HA
Land Parcel Number East Bukusus/North Nalondo/283
NO. BENEFICIARY’S NAME SHARE (HA)
1. Edith Nafula Nalimae 1.92 HA
2. Ronald Taracha Nalimae 1.33 HA
3. Kenneth Kiberenge Nalimae 2.24 HA
4. Teresina Nasipwondi Wabwile 0.72 HA
Nalondo Market Plot No. 7-Plot was not surveyed.
NO. BENEFICIARY’S NAME ROOM NO.
1. Erick Nalimae 101
2. George Eugene (Edith Nalimae) 102
3. Dennis Nalimae 103
4. Kenneth Nalimae 104
5. Oscar Nalimae 105
6. Ronald Nalimae 106
Rental Rooms
NO. BENEFICIARY’S NAME ROOM NO.
1. Kenneth Nalimae 301
2. Kenneth Nalimae 302
3. George Eugene 303
4. George Eugene 304
5. George Eugene 305
6. Administrators (jointly) 201 and 202
7. Felix (Irene) 203
8. Amos (Irene) 204
9. Bill Martin (Scholastic) 205
3. According to the 1st Administrator, the above schedule of distribution was based on the surveyor’s report and the family meeting held on 18th January 2019 as attested to by minutes of even date.
4. The 2nd and 3rd Administrators proceeded to oppose the Summons for Confirmation vide an Affidavit of Protest sworn on 25th March 2024, wherein they averred that the deceased person herein is survived by the following: Dennis Simiyu Nalimae, Oscar Wanjala Nalimae, Erick Nyongesa Nalimae, Irene Naliaka Nalimae, Scholastica Chemari Nalimae, Ronald Taracha Nalimae and Kenneth Kiberenge Nalimae. That the estate of the deceased is indebted to Justus K. Mukhula and Teresina Nasipwondi Wabwile.
5. According to the 2nd and 3rd Administrators, it is there proposal that the balance in Land Parcel No. East Bukusu/North Nalondo/275 being 5.84 hectares forms part of the estate of the deceased and the same ought to be distributed equally amongst all the beneficiaries to the estate of the deceased as follows:
NO. BENEFICIARY’S NAME SHARE (HA)
1. Oscar Wanjala Nalimae 0.73 HA
2. Erick Nyongesa Nalimae 0.73 HA
3. Irene Naliaka Nalimae 0.73 HA
4. Scholastic Chemari Nalimae 0.73 HA
5. Edith Nafula Nalimae 0.73 HA
6. Ronald Taracha Nalimae 0.73 HA
7. Kenneth Kiberenge Nalimae 0.73 HA
8. Dennis Simiyu Nalimae 0.73 HA
6. With regards to the rental houses located on Nalondo plot number 7, they proposed that the same be distributed as follows:
NO. BENEFICIARY’S NAME ROOM NO.
1. Erick Nyongesa Nalimae 101
2. Edith Nafula Nalimae 102
3. Dennis Simiyu Nalimae 103
4. Bill Martha Nalimae 104
5. Oscar Wanjala Nalimae 105
6. Felix Wafula Nalimae 106
7. Kenneth Kiberenge Nalimae 301
8. Amos Wanjala Nalimae 302
9. Oscar Wanjala Nalimae 303
10. Ronald Taracha Nalimae 304
11. Dennis Simiyu Nalimae 305
12. Administrators (jointly) 201 and 202
13. Ronald Taracha Nalimae 203
14. Edith Nafula Nalimae 204
15. Erick Nyongesa Nalimae 205
7. Further, the 2nd and 3rd Administrators opposed the proposal to distribute the unsettle portion of Parcel No. East Bukusu/North Nalondo/275 being 5.84 hectares to individuals who are not beneficiaries of the estate of the deceased herein.
8. Finally, the 2nd and 3rd Administrators averred that the proposed mode of distribution by the 1st Administrator/Petitioner with regards to plot number 7 at Nalondo Market is also discriminatory as the same alienates part of the deceased’s beneficiaries by giving others front doors and/or rooms and others back doors and/or rooms.
9. In response to the 2nd and 3 Administrators Affidavit of Protest, the 1st Petitioner herein swore a Replying Affidavit on 13th April 2024, wherein he averred that the 2nd and 3rd Administrators sold off their share of the land and that the inclusion of Edith Nafula Nalimae is to cater for the interest of the late George Euguene Kiberenge Nalimae who was the son of the deceased herein. Further he averred that with the demise of Kenneth Kiberenge Nalimae, Grace Wanjiru Murugu, his widow, is meant to cater to the interest of Kenneth.
10. He averred that Benjamin Kitayi Masalange is a liability to the estate of the deceased herein as he is in occupation of 0.70 Ha as he was one of the purchasers of the same.
11. Further, he averred that land parcel number East Bukusu/North Nalondo/275 measuring 5.84 Ha was partly sold off to various purchasers and part of the proceeds was used to partition and partial construction of Nalondo Market plot number 7 and the constructed rooms were shared amongst all the family members including the 2nd and 3rd Administrators herein. Also, he averred that the daughters of the deceased herein were also considered with some of his daughters receiving part of the proceeds that the purchasers gave. He averred that the is no unoccupied land remaining to be shared out on the main Land Parcel No. East Bukusu/North Nalondo/275 and that the sharing of the Nalondo Market plot number 7 was initially done as per the proposal agreed upon by all parties whereby the 2nd and 3rd Administrators were granted doors and even collected rent for about 2-3 months. He maintained that the rooms that are subject to the protest are still under lock and key with no occupants.
12. Finally, he averred that the 2nd and 3rd Administrators are at liberty to occupy their share at Nalondo Market plot number 7.
13. Vide Court directions issued on 15th April 2024, this Court under the esteemed leadership of my colleague Justice David Kemei directed that the Protest dated 25th March 2024 and the Summons of Confirmation dated 6th November 2023, be canvassed by way of viva voce evidence and the matter was placed down for hearing.
Evidence
Protestors Case
14. OB-PW1, Scholastic Chemari Wambete, adopted her statement dated 15th March 2024 and Affidavit of Protest sworn on 25th March 2024, as her evidence in Chief. She testified that she is not in agreement with the proposed mode of distribution as fronted by the 1st Administrator as her deceased husband had allocated to her 4 ¾ acres in Nalondo, but she was chased away and is currently residing at her parents’ home. She maintained that her portion was grabbed and sold off by other people and that she moved out of the said land in the year 2007. Further that Parcel No. East Bukusu/North/Nalondo/275 has unsettled acreage of 5.84 Ha and the same ought to be shared equally among all the beneficiaries and that she was not aware that the remaining 5.84 Ha was sold off. She also craved for an allocation in Nalondo Market plot number 7.
15. OB-PW2, Irene Naliaka Walimae, adopted her statement dated 15th March 2024, as her evidence in Chief. It was her evidence that the 1st Administrator’s proposed mode of distribution does not cater to her and that the 2nd and 3rd Administrators proposed mode of distribution is inclusive and promotes equality. She testified that her deceased husband provided for her in Land Parcel No. East Bukusu/North/Nalondo/275, but the daughters of the deceased chased her away in the year 2008. She maintained that she did not sell off her portion as alleged and that she received some money but was not aware of the source and purpose of the money. She proposed that the remaining 5.84 Ha in Land Parcel No. East Bukusu/North/Nalondo/275 should be divided equally and she stated that she had not declined to take up any room at Nalondo Market plot number 7, as she was not allocated any.
16. OB-PW3, Joel Wambete Psirmoi, adopted his statement dated 15th March 2024 as his evidence in Chief. He testified that the deceased herein was his brother-in-law and that he witnessed the deceased sub-divide his land on 1st January 2002, although he availed no documents to that effect before the Court. According to him, the 3rd Administrator was allocated 4 ¾ acres by the deceased but she is no residing on the said portion as she was evicted in 2007. He maintained that his sister never sold any portion of her land and that 5.84 Ha is vacant to date.
Petitioner’s hearing
17. PET-PW1, Oscar Nalimae Wanjala, adopted his Replying Affidavit sworn on 15th April 2024 in reply to the Affidavit of Protest, his statement dated 12th July 2024, and his list of exhibits (PET-EXH1-6) dated 16th July 2024, as his evidence in chief. He testified that the deceased herein was his father and that since he does not agree with the 2nd and 3rd Administrators proposed mode of distribution, he wished for this Court to assist him distribute the deceased person’s estate.
18. It was the evidence of PW1, that the 2nd and 3rd Administrators herein took over their portions in the year 2017 while this matter was still pending in Court and when he had not been appointed as an Administrator of the estate of the deceased. Further, that the deceased had distributed his properties and had duly settled his heirs/heiresses prior to his demise, save for 5.84 Hectares in Land Parcel No. East Bukusu/North/Nalondo/275 which he had left for his own personal user. He maintained that the 5.84 Ha was sold off by his predecessor Administrator who had informed the whole family prior to selling it off. He told the Court that the proceeds from the sale were appropriated by the late Kenneth to develop Nalondo Market plot number 7; he constructed an entire brick block.
19. PW1 testified that he was appointed as an Administrator in the year 2022 and the widows, sons and daughters of the deceased were all allocated rooms in Nalondo Market plot number 7. He reiterated that the late Kenneth Kiberenge informed him that the 2nd and 3rd Administrators had sold off their allocated shares in Land Parcel No. East Bukusu/North/Nalondo/275 and proceeded to purchase lands elsewhere. He urged this Court not to promote double allocation and if they are allocated portion from the 5.84 Ha the same should be given to the bona fide purchasers.
20. PET-PW2, Ronald Taracha Nalimae, adopted his statement dated 12th July 2024, as his evidence in Chief. He testified that this Court should adopt the 1st Administrator’s proposed mode of distribution and stated that the deceased did not distribute any of his properties prior to his demise but only settled his married sons while he declined to settle the single ones. He maintained that the remaining 5.84 Ha from Land Parcel No. East Bukusu/North/Nalondo/275 still exists and upon the death of the deceased some part of it was sold while the other was given to the daughters of the deceased herein, who eventually sold off their portions to the school. He stated that when given some time he will avail the sale agreements. Finally, he told the Court that the people who purchased the 2nd and 3rd Administrator’s portions are in actual possession of on the land and they have the requisite sale agreements.
Submissions
21. At the close of the 1st Administrator’s case this Court directed the parties to file and exchange their respective written submissions. Both parties complied with this Court directive.
22. Vide written submissions dated 19th September 2025, the 1st Administrator/Petitioner submitted that the only part of the deceased’s estate that is under contention is with regards to the balance of 5.84 Ha from Land Parcel No. East Bukusu/North/Nalondo/275. He argues that the said portion was sold off to various purchasers and a portion of the proceeds was utilized in the partition, construction and refurbishment of the houses on Nalondo Market plot number 7. Subsequently, he submitted that these houses were duly shared amongst all the beneficiaries to the estate of the deceased including the 2nd and 3rd Administrators herein. This was duly demonstrated in the availed minutes of Lufu ceremony of the late Kenneth K. Nalimae dated 18th November 2019, which was produced in Court as the 1st Administrator’s exhibits. Further, he submitted that with regards to the daughters of the deceased, under the representation of the eldest daughter, Mwanaisha Nekesa Tonnu, they received part of the proceeds the purchasers gave as demonstrated in the availed Bakimweyi clan meeting minutes dated 8th October 2006.
23. The 1st administrator submitted that the 2nd and 3rd Administrators in conjunction with the late Kenneth K. Nalimae, engaged in the sharing and they are taking advantage of the death of Kenneth K. Nalimae to insinuate that there is a balance portion from Land Parcel No. East Bukusu/North/Nalondo/275 to be shared contrary to the availed land sale agreements.
24. The 1st administrator further submitted that the deceased died intestate and the allegation that the 3rd Administratrix was allocated 4 ¾ acres by the deceased prior to his demise are mere allegations as the deceased never provided any physical boundaries or exact measurements.
25. It is submitted by the 1st administrator that 2nd and 3rd Administrators entered into an agreement with the late Kenneth K. Nalimae to sell off their portions and the sale agreement dated 16th February 2017, was availed in Court as an exhibit.
26. With regards to Nalondo Market plot number 7, he submitted that the same was distributed as per the minutes of Lufu ceremony of the late Kenneth K. Nalimae dated 18th November 2019. He posits that the 2nd and 3rd Administrators accepted their allocated rooms and proceeded to have the same listed under their sons’ names and assented to the same. That they duly collected the rent for 5 months prior to their decision to file this petition.
27. Vide written submissions dated 5th September 2025, the 2nd and 3rd Administrators submitted that the only issue under contention with regards to the estate of the deceased is the distribution of 5.8 hectares of part of Land Parcel No. East Bukusu/North/Nalondo/275 and the rental houses on Nalondo Market plot number 7. They submit that the same ought to be distributed equally as proposed by the 2nd and 3rd Administrators pursuant to Section 38, 40, 41 and 42 of the Law of Succession Act.
Analysis and determination.
28. The application for determination is a summons for confirmation of grant.
29. In confirmation applications the has Court to consider the following factors:
i) Who are the beneficiaries of the estate of the deceased?
ii) What are the assets and liabilities of the estate of the deceased?
iii) Whether the beneficiaries have consented to the administrators’ proposed mode of distribution.
iv) Whether any beneficiary had received a gift from the deceased.
v) What was the relationship between the beneficiary and the deceased prior to his/her demise.
30. The principal purpose of confirmation is the distribution of the assets of the estate of a deceased person to his/her heirs/heiresses. Where parties differ on the proposed mode of distribution of the estate of a deceased person, the Court takes up the duty of distributing the same in accordance with the law of Succession Act, and precedents. The Court would while undertaking this mandate ensure that the distribution is fair and just in the circumstances of the case.
31. I have considered the evidence of the parties, and their respective proposed mode of distribution of the deceased’s estate. I have also considered their rival submissions and the relevant provisions of the law, and the issue that emerges for determination what is the most suitable mode distribution of the Estate of the deceased.
32. This inheritance is by descent. The claims of descent and all existing models and rules are set forth in the law of Succession Act covering both real and personal property.
33. The deceased as evidence by a Death Certificate filed herein died intestate on 1st August 2006, after the commencement of the Law of Succession Act on 1st July, 1981. Consequently, by dint of the provisions of Section 2(1) of the Law of Succession Act the law applicable to the distribution of his estate is the Law of Succession Act Chapter 160 Laws of Kenya.
34. Given that the deceased was polygamous, Section 40 of the Law of Succession Act will be applicable in this succession cause. The same provides that:
(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.
(2) The distribution of the personal and household effects and the residue of the net intestate estate within each house shall then be in accordance with the rules set out in sections 35 to 38.
35. Section 3 of the Law of Succession Act, defines the “house” as a family unit comprising a wife, whether alive or dead at the date of the death of the husband, and the children of that wife. There is no discrimination of the children on grounds of their sex. All wives of the deceased and all their children are therefore entitled to a share of his net intestate estate equally as provided for by Section 40 of the Law of Succession Act.
36. In this case, there are eight units. The distribution shall factor any benefit the deceased had given to any beneficiary during his lifetime as envisaged under section 42 of the Law of Succession Act which provides as follows:
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 of this Act, that property shall be taken into account in determining the share of the net intestate estate finally accruing to the child, grandchild or house.
37. Besides Section 40, this court shall place reliance on section 42 of the Law of Succession Act as the appropriate applicable law. I also find guidance in the case of Scolastica Ndululu Suva vs. Agnes Nthenya Suva (2019) eKLR , where the court rendered itself as hereunder ;
“It is therefore evident that although Section 40 of the Law of Succession Act provides a general provision for distribution of the estate of a polygamous deceased person, the Court has the discretion to take into account factual circumstances of the particular case that may be relevant in ensuring equitable and fair distribution of the estate.”
38. The properties available for distribution are as follows:
i) Land Parcel number East Bukusu/North Nalondo/283,
ii) Land Parcel number East Bukusu/North Nalondo/275
iii) Commercial building on Nalondo Market Plot number 7.
39. With regards to the Land Parcel number East Bukusu/North Nalondo/283, the 1st Administrator argues that the same to be distributed in accordance to the family minutes dated 18th January 2019. In his Affidavit on distribution, he depicted that the parcel was already settled and the 2nd & 3rd Administrators clearly had no issue with this parcel of land. I will adopted the 1st administrator’s said mode of distribution in respect of this property.
40. On the Land Parcel number East Bukusu/North Nalondo/275, both parties allude to the fact that the deceased had partially settled his heirs on the same and left 5.8 hectares for himself. According to the 1st Administrator, the said portion does not exist as the same was sold off by the late Kenneth K. Nalimae in agreement with the 2nd and 3rd Administrators, and the proceeds of that sale were duly appropriated in the partition, construction and refurbishment of the houses on Nalondo Market plot number 7, which houses were duly distributed to the beneficiaries of the estate of the deceased including the 2nd and 3rd Administrators. He maintains that this was clearly demonstrated in the minutes of the “Lufu” ceremony of the late Kenneth K. Nalimae dated 18th November 2019 which he duly produced in court. Further he argued that the daughters of the estate of the deceased, under the representation of the eldest daughter, Mwanaisha Nekesa Tonnu, had received part of the proceeds of the sale of the 5.8 hectares of parcel No East Bukusu / North Nalondo/275 as evident from the exhibited minutes dated 8th October 2006 of Bakimweyi clan meeting.
41. Faced with this reality and I am convinced that the late Kenneth K. Nalimae (former Administrator) and the 2nd & 3rd Administrators had nothing to sell because the property in question was not theirs, as at that time, this Court must find that the purported sale of the balance 5.84 Ha from Land Parcel number East Bukusu/North Nalondo/275 was void ab initio.
42. This Court respectfully notes the case of re Estate of M’Ajogi M’Ikiugu (Deceased) [2017] eKLR where the Court, (F. Gikonyo J) stated as follows:
“Courts have said time and again- and I will not be tired of stating it again- that, under section 82(b) (ii) of the law of Succession Act, sale of immovable property of the estate before confirmation of grant is prohibited. Again, under section 55 of the Law of Succession Act, the law has placed restriction on distribution of any capital assets of the estate before confirmation of grant. Therefore, no person shall have any power or legal authority or capacity to sell immovable property of the deceased before confirmation of grant. As such, any such attempted sale of immovable property of the estate before confirmation of grant shall be null and void for all purposes and intents. I need not also state that beneficial interest of a person beneficially entitled to a share in the estate must be identified and be capable of registration in his name before it could be sold or pledged as security or exchanged with another type of property.”
43. In Macfoy v United Africa Co. Ltd [1961] 3 All ER 1169 at page 1172, Lord Denning stated that:
“…If an act is void, then it is in law a nullity. It is not only bad, but incurably bad. There is no need for an order of the court to set aside. It is automatically null and void without more ado, though it is sometimes convenient to have the court declare it to be so. And every proceeding which is founded on it is also bad and incurably bad. You cannot put something on nothing and expect it to stay there. It will collapse.”
44. The burden of proof in a suit or proceedings, lies on that person, who will fail if no evidence at all were given on either side. See also Section 107 of the Evidence Act. The 1st Administrator availed the Bakimweyi clan minutes dated 8th October 2006, which showed that the 2nd and 3rd Administrators were not in attendance despite invitation. The minutes indicate that the sub-division and distribution of the deceased person’s land was to be done in accordance with the deceased person’s initial instructions and to all the nine sons. Regarding his10 daughters, the deceased person had already given out a portion of the land to Everlyne Nalimae who later sold it off and that he also showed willingness to support some of his other daughters, and that they ought to be considered in sharing of the land. The minutes/resolutions as availed by the 1st Administrator supports the assertions by 1st Administrator and the reference to the surveyors’ report and the availed sale agreements, I believe that he has availed sufficient proof to the required standards that he adhered to the deceased person’s wishes and that the 2nd and 3rd Administrators were duly catered for in Land Parcel number East Bukusu/North Nalondo/275.
45. According to the evidence of the 1st Administrator, the 2nd and 3rd Administrators were duly given their share in Land Parcel number East Bukusu/North Nalondo/275, but they decided to sell off the same. He did avail before this Court evidence to support his allegations in form of sale agreements. Sale of a property is perfected by conveyance of title from the vendor to the purchaser. Ownership of a property is proved through registration of a purchaser as the proprietor and issuance of a title document in her/his name. The question as to whether there was a valid sale of land by the 2nd and 3rd administrators is an issue that is well outside the jurisdiction of the High Court and is within the purview of the Environment and Land Court by dint of the provisions of article 162 (2) (b) of the Constitution of Kenya 2010. Any person who supposedly purchased any parcel of land forming part of the estate of the deceased prior to the confirmation of the grant did so at his/her own peril and this court will not condone acts that amount to intermeddling with the estate of the deceased. Such a person will have to pursue the beneficiary who purported to have sold her/his share, once the grant herein is confirmed.
46. In light of the analysis made hereinabove, I do make the following findings;-
a. That, the mode of distribution proposed by the 2nd and 3rd Administrators is therefore unacceptable and the same is dismissed;
b. That, the mode of distribution proposed by the 1st Administrator is partly acceptable as regards parcel No Est Bukusu/North Nalondo/283.
c. Each widow will remain in occupancy of the parcel of land bought by the deceased during his lifetime for her;
d. I therefore proceed to distribute the deceased person’s estate as follows:
Land Parcel No. East Bukusu/North Nalondo/2
[...truncated]
IN THE HGH COURT OF KENYA
AT BUNGOMA
SUCCESSION CAUSE NO. 4 OF 2008
IN THE ESTATE OF JOSEPH MAINJA MALIMAE (DECEASED)
OSCAR KIBERENGE NALIMAE……………….…1ST ADMINISTRATOR
VERSUS
IRENE N. NALIMAE……………..2ND ADMINISTRATOR/PROTESTOR
SCHOLASTICA C. WAMETE……..2ND ADMINISTRATOR/OBJECTOR
JUDGEMENT
Introduction
1. The deceased herein, Joseph Mainja Nalimae, died intestate on 1st August 2006, and his estate comprised of the following assets: Land Parcels No. East Bukusu/North Nalondo/275 and East Bukusu/North Nalondo/283.
2. The deceased was survived by: Mary Nafula, Mary Nagila Mainja, Irene Nalika Nalimae, George Kiberenge Nalimae, Kenneth Kiberenge Nalimae, Ronald Taracha Nalimae, Oscar Wanjala Nalimae, Eric Nyongesa Nalimae, Dennis Simiyu Nalimae, Billy Nalimae, Felishan Nalimae, Amos Nalimae and Scholastic Chemari Wambete
3. The estate of the deceased herein was indicated as indebted to the following persons: Francis Wabwile, Justus Mukhula Kisabuli and Mr. Masalange.
4. The Grant of Letters of Administration were issued to Kenneth Kiberenge Nalimae on 14th January 2009.
5. When the matter came up for Confirmation of Grant, there was a discord on the proposed mode of sharing with the 3rd Administrator herein objecting to the proposal to have her son get 0.5 acres only.
6. Vide a ruling issued by this Court on 8th October 2012, where this Court found that the then Administrator had relinquished his role as an Administrator to the estate of the deceased herein and the Court directed the beneficiaries of the estate of the deceased to appoint another Administrator(s).
7. On 20th November 2015, fresh Grant of Letters of Administration were made out to Kenneth Kiberenge Nalimae, Scholastic Chemari Wambete and Irene Naliaka Nalimae.
8. On 24th February 2017, the 2nd and 3rd Administrators herein sought the orders of this Court to have a County Surveyor visit the site to establish and confirm the exact acreage of each beneficiary to the estate of the deceased as per the demarcations on both assets belonging to the estate of the deceased.
9. Vide Orders issued on 3rd October 2017, by Ali-Aroni J. (as she was then) this Court directed the County Surveyor to visit, establish and confirm the acreage of each beneficiary to the estate of the deceased as per the demarcations made by the deceased on both parcels of land belonging to the estate of the deceased.
10. Subject to the demise of the 1st Administrator to the estate of the deceased, this Court under the stewardship of Justice David Kemei issued Orders on 21st September 2022, substituting Kenneth Kiberenge Nalimae who passed away on 4th November 2019 with Nalimae Oscar Wanjala.
11. On 16th March 2023, the County Surveyor Bungoma filed the survey report dated 26th February 2023. He noted that the assets comprising of the estate of the deceased herein were settled as follows:
Land Parcel East Bukusu/North Nalondo /275
a. Oscar Wanjala Nalimae -1.90 Ha
b. Dennis Simiyu Nalimae-2.00 Ha
c. Erick Nyongesa Nalimae-1.60 Ha
d. Scholastic Chemari Nalimae-1.70 Ha
e. Irene Naliaka Nalimae-1.70 Ha
f. Justus K. Mukhula-2.72 Ha
g. 5.84 Ha remained as the portion for the deceased.
Land Parcel East Bukusu/North Nalondo /283
a. Kenneth Kiberenge Nalimae-3.0 Ha
b. Edith Nafula Nalimae-1.60 Ha
c. Ronald Taracha Nalimae-1.70 Ha
Application
1. Vide Summons of Confirmation of Grant dated 6th November 2023, the 1st Administrator herein pursuant to Section 71 of the Law of Succession Act and Rule 40(2) of the Probate and Administration Rules sought the Confirmation of the Grant of Letters of Administration issued on 8th October 2015.
2. The gist of the application is premised on the grounds on the face of it and the Supporting Affidavit sworn by Oscar Nalimae Wanjala, the 1st Administrator herein, on the even date. According to him, the six months post issuance of the Grant have already lapsed and as per the annexed proposed mode of distribution dated 19th October 2023, the beneficiaries to the estate of the deceased were in concurrence of how he wishes the estate of the deceased to be distributed as depicted hereunder:
Land Parcel No. East Bukusu/North Nalondo/275
NO. BENEFICIARY’S NAME SHARE (HA)
1. Dennis Simiyu Nalimae 2 HA
2. Oscar Wanjala Nalimae 1.90 HA
3. Erick Nyongesa Nalimae 1.60 HA
4. Pongola Secondary School-purchased from Irene Naliaka (widow to the deceased) 0.4 HA
5. Elizabeth Machuma Wanjala purchased from Scholastic Chemari (widow to the deceased) 0.2 HA
6. Justus K. Mukhula 2.72 HA
7. Benjamin Kitayi Masalange 0.70 HA
Given to the daughters of the deceased and was sold off as follows based on the agreements. 5.84 HA
8. Benjamin Wabwile Biketi (purchaser) 0.4 HA
9. Pius Walubengo Mumiuka (purchaser) 1.2 HA
10. Cornelius Wanjala (purchaser) 0.10 HA
11. Benjamin Kitayi (purchaser) 0.8 HA
12. Dismas Kisiangani (purchaser) 0.8 HA
13. Francis Barasa Wanyonyi (purchaser) 0.8 HA
14. Cornelius W. Wanjala (purchaser) 0.8 HA
15. Cleophas Khisa Kwanusu (purchaser) 0.81 HA
16. Moses Wanjala Wamalwa (purchaser) 1.6 HA
Land Parcel Number East Bukusus/North Nalondo/283
NO. BENEFICIARY’S NAME SHARE (HA)
1. Edith Nafula Nalimae 1.92 HA
2. Ronald Taracha Nalimae 1.33 HA
3. Kenneth Kiberenge Nalimae 2.24 HA
4. Teresina Nasipwondi Wabwile 0.72 HA
Nalondo Market Plot No. 7-Plot was not surveyed.
NO. BENEFICIARY’S NAME ROOM NO.
1. Erick Nalimae 101
2. George Eugene (Edith Nalimae) 102
3. Dennis Nalimae 103
4. Kenneth Nalimae 104
5. Oscar Nalimae 105
6. Ronald Nalimae 106
Rental Rooms
NO. BENEFICIARY’S NAME ROOM NO.
1. Kenneth Nalimae 301
2. Kenneth Nalimae 302
3. George Eugene 303
4. George Eugene 304
5. George Eugene 305
6. Administrators (jointly) 201 and 202
7. Felix (Irene) 203
8. Amos (Irene) 204
9. Bill Martin (Scholastic) 205
3. According to the 1st Administrator, the above schedule of distribution was based on the surveyor’s report and the family meeting held on 18th January 2019 as attested to by minutes of even date.
4. The 2nd and 3rd Administrators proceeded to oppose the Summons for Confirmation vide an Affidavit of Protest sworn on 25th March 2024, wherein they averred that the deceased person herein is survived by the following: Dennis Simiyu Nalimae, Oscar Wanjala Nalimae, Erick Nyongesa Nalimae, Irene Naliaka Nalimae, Scholastica Chemari Nalimae, Ronald Taracha Nalimae and Kenneth Kiberenge Nalimae. That the estate of the deceased is indebted to Justus K. Mukhula and Teresina Nasipwondi Wabwile.
5. According to the 2nd and 3rd Administrators, it is there proposal that the balance in Land Parcel No. East Bukusu/North Nalondo/275 being 5.84 hectares forms part of the estate of the deceased and the same ought to be distributed equally amongst all the beneficiaries to the estate of the deceased as follows:
NO. BENEFICIARY’S NAME SHARE (HA)
1. Oscar Wanjala Nalimae 0.73 HA
2. Erick Nyongesa Nalimae 0.73 HA
3. Irene Naliaka Nalimae 0.73 HA
4. Scholastic Chemari Nalimae 0.73 HA
5. Edith Nafula Nalimae 0.73 HA
6. Ronald Taracha Nalimae 0.73 HA
7. Kenneth Kiberenge Nalimae 0.73 HA
8. Dennis Simiyu Nalimae 0.73 HA
6. With regards to the rental houses located on Nalondo plot number 7, they proposed that the same be distributed as follows:
NO. BENEFICIARY’S NAME ROOM NO.
1. Erick Nyongesa Nalimae 101
2. Edith Nafula Nalimae 102
3. Dennis Simiyu Nalimae 103
4. Bill Martha Nalimae 104
5. Oscar Wanjala Nalimae 105
6. Felix Wafula Nalimae 106
7. Kenneth Kiberenge Nalimae 301
8. Amos Wanjala Nalimae 302
9. Oscar Wanjala Nalimae 303
10. Ronald Taracha Nalimae 304
11. Dennis Simiyu Nalimae 305
12. Administrators (jointly) 201 and 202
13. Ronald Taracha Nalimae 203
14. Edith Nafula Nalimae 204
15. Erick Nyongesa Nalimae 205
7. Further, the 2nd and 3rd Administrators opposed the proposal to distribute the unsettle portion of Parcel No. East Bukusu/North Nalondo/275 being 5.84 hectares to individuals who are not beneficiaries of the estate of the deceased herein.
8. Finally, the 2nd and 3rd Administrators averred that the proposed mode of distribution by the 1st Administrator/Petitioner with regards to plot number 7 at Nalondo Market is also discriminatory as the same alienates part of the deceased’s beneficiaries by giving others front doors and/or rooms and others back doors and/or rooms.
9. In response to the 2nd and 3 Administrators Affidavit of Protest, the 1st Petitioner herein swore a Replying Affidavit on 13th April 2024, wherein he averred that the 2nd and 3rd Administrators sold off their share of the land and that the inclusion of Edith Nafula Nalimae is to cater for the interest of the late George Euguene Kiberenge Nalimae who was the son of the deceased herein. Further he averred that with the demise of Kenneth Kiberenge Nalimae, Grace Wanjiru Murugu, his widow, is meant to cater to the interest of Kenneth.
10. He averred that Benjamin Kitayi Masalange is a liability to the estate of the deceased herein as he is in occupation of 0.70 Ha as he was one of the purchasers of the same.
11. Further, he averred that land parcel number East Bukusu/North Nalondo/275 measuring 5.84 Ha was partly sold off to various purchasers and part of the proceeds was used to partition and partial construction of Nalondo Market plot number 7 and the constructed rooms were shared amongst all the family members including the 2nd and 3rd Administrators herein. Also, he averred that the daughters of the deceased herein were also considered with some of his daughters receiving part of the proceeds that the purchasers gave. He averred that the is no unoccupied land remaining to be shared out on the main Land Parcel No. East Bukusu/North Nalondo/275 and that the sharing of the Nalondo Market plot number 7 was initially done as per the proposal agreed upon by all parties whereby the 2nd and 3rd Administrators were granted doors and even collected rent for about 2-3 months. He maintained that the rooms that are subject to the protest are still under lock and key with no occupants.
12. Finally, he averred that the 2nd and 3rd Administrators are at liberty to occupy their share at Nalondo Market plot number 7.
13. Vide Court directions issued on 15th April 2024, this Court under the esteemed leadership of my colleague Justice David Kemei directed that the Protest dated 25th March 2024 and the Summons of Confirmation dated 6th November 2023, be canvassed by way of viva voce evidence and the matter was placed down for hearing.
Evidence
Protestors Case
14. OB-PW1, Scholastic Chemari Wambete, adopted her statement dated 15th March 2024 and Affidavit of Protest sworn on 25th March 2024, as her evidence in Chief. She testified that she is not in agreement with the proposed mode of distribution as fronted by the 1st Administrator as her deceased husband had allocated to her 4 ¾ acres in Nalondo, but she was chased away and is currently residing at her parents’ home. She maintained that her portion was grabbed and sold off by other people and that she moved out of the said land in the year 2007. Further that Parcel No. East Bukusu/North/Nalondo/275 has unsettled acreage of 5.84 Ha and the same ought to be shared equally among all the beneficiaries and that she was not aware that the remaining 5.84 Ha was sold off. She also craved for an allocation in Nalondo Market plot number 7.
15. OB-PW2, Irene Naliaka Walimae, adopted her statement dated 15th March 2024, as her evidence in Chief. It was her evidence that the 1st Administrator’s proposed mode of distribution does not cater to her and that the 2nd and 3rd Administrators proposed mode of distribution is inclusive and promotes equality. She testified that her deceased husband provided for her in Land Parcel No. East Bukusu/North/Nalondo/275, but the daughters of the deceased chased her away in the year 2008. She maintained that she did not sell off her portion as alleged and that she received some money but was not aware of the source and purpose of the money. She proposed that the remaining 5.84 Ha in Land Parcel No. East Bukusu/North/Nalondo/275 should be divided equally and she stated that she had not declined to take up any room at Nalondo Market plot number 7, as she was not allocated any.
16. OB-PW3, Joel Wambete Psirmoi, adopted his statement dated 15th March 2024 as his evidence in Chief. He testified that the deceased herein was his brother-in-law and that he witnessed the deceased sub-divide his land on 1st January 2002, although he availed no documents to that effect before the Court. According to him, the 3rd Administrator was allocated 4 ¾ acres by the deceased but she is no residing on the said portion as she was evicted in 2007. He maintained that his sister never sold any portion of her land and that 5.84 Ha is vacant to date.
Petitioner’s hearing
17. PET-PW1, Oscar Nalimae Wanjala, adopted his Replying Affidavit sworn on 15th April 2024 in reply to the Affidavit of Protest, his statement dated 12th July 2024, and his list of exhibits (PET-EXH1-6) dated 16th July 2024, as his evidence in chief. He testified that the deceased herein was his father and that since he does not agree with the 2nd and 3rd Administrators proposed mode of distribution, he wished for this Court to assist him distribute the deceased person’s estate.
18. It was the evidence of PW1, that the 2nd and 3rd Administrators herein took over their portions in the year 2017 while this matter was still pending in Court and when he had not been appointed as an Administrator of the estate of the deceased. Further, that the deceased had distributed his properties and had duly settled his heirs/heiresses prior to his demise, save for 5.84 Hectares in Land Parcel No. East Bukusu/North/Nalondo/275 which he had left for his own personal user. He maintained that the 5.84 Ha was sold off by his predecessor Administrator who had informed the whole family prior to selling it off. He told the Court that the proceeds from the sale were appropriated by the late Kenneth to develop Nalondo Market plot number 7; he constructed an entire brick block.
19. PW1 testified that he was appointed as an Administrator in the year 2022 and the widows, sons and daughters of the deceased were all allocated rooms in Nalondo Market plot number 7. He reiterated that the late Kenneth Kiberenge informed him that the 2nd and 3rd Administrators had sold off their allocated shares in Land Parcel No. East Bukusu/North/Nalondo/275 and proceeded to purchase lands elsewhere. He urged this Court not to promote double allocation and if they are allocated portion from the 5.84 Ha the same should be given to the bona fide purchasers.
20. PET-PW2, Ronald Taracha Nalimae, adopted his statement dated 12th July 2024, as his evidence in Chief. He testified that this Court should adopt the 1st Administrator’s proposed mode of distribution and stated that the deceased did not distribute any of his properties prior to his demise but only settled his married sons while he declined to settle the single ones. He maintained that the remaining 5.84 Ha from Land Parcel No. East Bukusu/North/Nalondo/275 still exists and upon the death of the deceased some part of it was sold while the other was given to the daughters of the deceased herein, who eventually sold off their portions to the school. He stated that when given some time he will avail the sale agreements. Finally, he told the Court that the people who purchased the 2nd and 3rd Administrator’s portions are in actual possession of on the land and they have the requisite sale agreements.
Submissions
21. At the close of the 1st Administrator’s case this Court directed the parties to file and exchange their respective written submissions. Both parties complied with this Court directive.
22. Vide written submissions dated 19th September 2025, the 1st Administrator/Petitioner submitted that the only part of the deceased’s estate that is under contention is with regards to the balance of 5.84 Ha from Land Parcel No. East Bukusu/North/Nalondo/275. He argues that the said portion was sold off to various purchasers and a portion of the proceeds was utilized in the partition, construction and refurbishment of the houses on Nalondo Market plot number 7. Subsequently, he submitted that these houses were duly shared amongst all the beneficiaries to the estate of the deceased including the 2nd and 3rd Administrators herein. This was duly demonstrated in the availed minutes of Lufu ceremony of the late Kenneth K. Nalimae dated 18th November 2019, which was produced in Court as the 1st Administrator’s exhibits. Further, he submitted that with regards to the daughters of the deceased, under the representation of the eldest daughter, Mwanaisha Nekesa Tonnu, they received part of the proceeds the purchasers gave as demonstrated in the availed Bakimweyi clan meeting minutes dated 8th October 2006.
23. The 1st administrator submitted that the 2nd and 3rd Administrators in conjunction with the late Kenneth K. Nalimae, engaged in the sharing and they are taking advantage of the death of Kenneth K. Nalimae to insinuate that there is a balance portion from Land Parcel No. East Bukusu/North/Nalondo/275 to be shared contrary to the availed land sale agreements.
24. The 1st administrator further submitted that the deceased died intestate and the allegation that the 3rd Administratrix was allocated 4 ¾ acres by the deceased prior to his demise are mere allegations as the deceased never provided any physical boundaries or exact measurements.
25. It is submitted by the 1st administrator that 2nd and 3rd Administrators entered into an agreement with the late Kenneth K. Nalimae to sell off their portions and the sale agreement dated 16th February 2017, was availed in Court as an exhibit.
26. With regards to Nalondo Market plot number 7, he submitted that the same was distributed as per the minutes of Lufu ceremony of the late Kenneth K. Nalimae dated 18th November 2019. He posits that the 2nd and 3rd Administrators accepted their allocated rooms and proceeded to have the same listed under their sons’ names and assented to the same. That they duly collected the rent for 5 months prior to their decision to file this petition.
27. Vide written submissions dated 5th September 2025, the 2nd and 3rd Administrators submitted that the only issue under contention with regards to the estate of the deceased is the distribution of 5.8 hectares of part of Land Parcel No. East Bukusu/North/Nalondo/275 and the rental houses on Nalondo Market plot number 7. They submit that the same ought to be distributed equally as proposed by the 2nd and 3rd Administrators pursuant to Section 38, 40, 41 and 42 of the Law of Succession Act.
Analysis and determination.
28. The application for determination is a summons for confirmation of grant.
29. In confirmation applications the has Court to consider the following factors:
i) Who are the beneficiaries of the estate of the deceased?
ii) What are the assets and liabilities of the estate of the deceased?
iii) Whether the beneficiaries have consented to the administrators’ proposed mode of distribution.
iv) Whether any beneficiary had received a gift from the deceased.
v) What was the relationship between the beneficiary and the deceased prior to his/her demise.
30. The principal purpose of confirmation is the distribution of the assets of the estate of a deceased person to his/her heirs/heiresses. Where parties differ on the proposed mode of distribution of the estate of a deceased person, the Court takes up the duty of distributing the same in accordance with the law of Succession Act, and precedents. The Court would while undertaking this mandate ensure that the distribution is fair and just in the circumstances of the case.
31. I have considered the evidence of the parties, and their respective proposed mode of distribution of the deceased’s estate. I have also considered their rival submissions and the relevant provisions of the law, and the issue that emerges for determination what is the most suitable mode distribution of the Estate of the deceased.
32. This inheritance is by descent. The claims of descent and all existing models and rules are set forth in the law of Succession Act covering both real and personal property.
33. The deceased as evidence by a Death Certificate filed herein died intestate on 1st August 2006, after the commencement of the Law of Succession Act on 1st July, 1981. Consequently, by dint of the provisions of Section 2(1) of the Law of Succession Act the law applicable to the distribution of his estate is the Law of Succession Act Chapter 160 Laws of Kenya.
34. Given that the deceased was polygamous, Section 40 of the Law of Succession Act will be applicable in this succession cause. The same provides that:
(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.
(2) The distribution of the personal and household effects and the residue of the net intestate estate within each house shall then be in accordance with the rules set out in sections 35 to 38.
35. Section 3 of the Law of Succession Act, defines the “house” as a family unit comprising a wife, whether alive or dead at the date of the death of the husband, and the children of that wife. There is no discrimination of the children on grounds of their sex. All wives of the deceased and all their children are therefore entitled to a share of his net intestate estate equally as provided for by Section 40 of the Law of Succession Act.
36. In this case, there are eight units. The distribution shall factor any benefit the deceased had given to any beneficiary during his lifetime as envisaged under section 42 of the Law of Succession Act which provides as follows:
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 of this Act, that property shall be taken into account in determining the share of the net intestate estate finally accruing to the child, grandchild or house.
37. Besides Section 40, this court shall place reliance on section 42 of the Law of Succession Act as the appropriate applicable law. I also find guidance in the case of Scolastica Ndululu Suva vs. Agnes Nthenya Suva (2019) eKLR , where the court rendered itself as hereunder ;
“It is therefore evident that although Section 40 of the Law of Succession Act provides a general provision for distribution of the estate of a polygamous deceased person, the Court has the discretion to take into account factual circumstances of the particular case that may be relevant in ensuring equitable and fair distribution of the estate.”
38. The properties available for distribution are as follows:
i) Land Parcel number East Bukusu/North Nalondo/283,
ii) Land Parcel number East Bukusu/North Nalondo/275
iii) Commercial building on Nalondo Market Plot number 7.
39. With regards to the Land Parcel number East Bukusu/North Nalondo/283, the 1st Administrator argues that the same to be distributed in accordance to the family minutes dated 18th January 2019. In his Affidavit on distribution, he depicted that the parcel was already settled and the 2nd & 3rd Administrators clearly had no issue with this parcel of land. I will adopted the 1st administrator’s said mode of distribution in respect of this property.
40. On the Land Parcel number East Bukusu/North Nalondo/275, both parties allude to the fact that the deceased had partially settled his heirs on the same and left 5.8 hectares for himself. According to the 1st Administrator, the said portion does not exist as the same was sold off by the late Kenneth K. Nalimae in agreement with the 2nd and 3rd Administrators, and the proceeds of that sale were duly appropriated in the partition, construction and refurbishment of the houses on Nalondo Market plot number 7, which houses were duly distributed to the beneficiaries of the estate of the deceased including the 2nd and 3rd Administrators. He maintains that this was clearly demonstrated in the minutes of the “Lufu” ceremony of the late Kenneth K. Nalimae dated 18th November 2019 which he duly produced in court. Further he argued that the daughters of the estate of the deceased, under the representation of the eldest daughter, Mwanaisha Nekesa Tonnu, had received part of the proceeds of the sale of the 5.8 hectares of parcel No East Bukusu / North Nalondo/275 as evident from the exhibited minutes dated 8th October 2006 of Bakimweyi clan meeting.
41. Faced with this reality and I am convinced that the late Kenneth K. Nalimae (former Administrator) and the 2nd & 3rd Administrators had nothing to sell because the property in question was not theirs, as at that time, this Court must find that the purported sale of the balance 5.84 Ha from Land Parcel number East Bukusu/North Nalondo/275 was void ab initio.
42. This Court respectfully notes the case of re Estate of M’Ajogi M’Ikiugu (Deceased) [2017] eKLR where the Court, (F. Gikonyo J) stated as follows:
“Courts have said time and again- and I will not be tired of stating it again- that, under section 82(b) (ii) of the law of Succession Act, sale of immovable property of the estate before confirmation of grant is prohibited. Again, under section 55 of the Law of Succession Act, the law has placed restriction on distribution of any capital assets of the estate before confirmation of grant. Therefore, no person shall have any power or legal authority or capacity to sell immovable property of the deceased before confirmation of grant. As such, any such attempted sale of immovable property of the estate before confirmation of grant shall be null and void for all purposes and intents. I need not also state that beneficial interest of a person beneficially entitled to a share in the estate must be identified and be capable of registration in his name before it could be sold or pledged as security or exchanged with another type of property.”
43. In Macfoy v United Africa Co. Ltd [1961] 3 All ER 1169 at page 1172, Lord Denning stated that:
“…If an act is void, then it is in law a nullity. It is not only bad, but incurably bad. There is no need for an order of the court to set aside. It is automatically null and void without more ado, though it is sometimes convenient to have the court declare it to be so. And every proceeding which is founded on it is also bad and incurably bad. You cannot put something on nothing and expect it to stay there. It will collapse.”
44. The burden of proof in a suit or proceedings, lies on that person, who will fail if no evidence at all were given on either side. See also Section 107 of the Evidence Act. The 1st Administrator availed the Bakimweyi clan minutes dated 8th October 2006, which showed that the 2nd and 3rd Administrators were not in attendance despite invitation. The minutes indicate that the sub-division and distribution of the deceased person’s land was to be done in accordance with the deceased person’s initial instructions and to all the nine sons. Regarding his10 daughters, the deceased person had already given out a portion of the land to Everlyne Nalimae who later sold it off and that he also showed willingness to support some of his other daughters, and that they ought to be considered in sharing of the land. The minutes/resolutions as availed by the 1st Administrator supports the assertions by 1st Administrator and the reference to the surveyors’ report and the availed sale agreements, I believe that he has availed sufficient proof to the required standards that he adhered to the deceased person’s wishes and that the 2nd and 3rd Administrators were duly catered for in Land Parcel number East Bukusu/North Nalondo/275.
45. According to the evidence of the 1st Administrator, the 2nd and 3rd Administrators were duly given their share in Land Parcel number East Bukusu/North Nalondo/275, but they decided to sell off the same. He did avail before this Court evidence to support his allegations in form of sale agreements. Sale of a property is perfected by conveyance of title from the vendor to the purchaser. Ownership of a property is proved through registration of a purchaser as the proprietor and issuance of a title document in her/his name. The question as to whether there was a valid sale of land by the 2nd and 3rd administrators is an issue that is well outside the jurisdiction of the High Court and is within the purview of the Environment and Land Court by dint of the provisions of article 162 (2) (b) of the Constitution of Kenya 2010. Any person who supposedly purchased any parcel of land forming part of the estate of the deceased prior to the confirmation of the grant did so at his/her own peril and this court will not condone acts that amount to intermeddling with the estate of the deceased. Such a person will have to pursue the beneficiary who purported to have sold her/his share, once the grant herein is confirmed.
46. In light of the analysis made hereinabove, I do make the following findings;-
a. That, the mode of distribution proposed by the 2nd and 3rd Administrators is therefore unacceptable and the same is dismissed;
b. That, the mode of distribution proposed by the 1st Administrator is partly acceptable as regards parcel No Est Bukusu/North Nalondo/283.
c. Each widow will remain in occupancy of the parcel of land bought by the deceased during his lifetime for her;
d. I therefore proceed to distribute the deceased person’s estate as follows:
Land Parcel No. East Bukusu/North Nalondo/2
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