REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT BUNGOMA
CIVIL APPEAL NO. E171 OF 2024
MAURICE MAFWABI MAKOMBOTI ……………….……. APPELLANT
- VERSUS -
FRANCISCAH NAFULA MAKOKHA …..……………..… RESPONDENT
(Being an appeal from the judgement of Hon. H. Getenga RM delivered on the 22/11/2024 in Bungoma CMC Succession Cause No. 167 of 2020,)
JUDGMENT
1. The deceased Yakobo Makomboti Mafwabi died on 29/8/2021. He had three sons: Japheth Makoha Makomboti (deceased), James Wasike Makomboti (deceased), and the appellant herein, Maurice Mafwabi Makomboti. He left behind only a piece of land as the sole property for distribution, Land Parcel number Malakisi/N&C/Namwela/155.
2. The appellant filed a petition for Letters of Administration Intestate dated 16/7/2020 and was granted the Letters of Administration on 17/11/2021.
3. The respondent, who is a daughter of one of the deceased’s sons, Japheth Makoha Makomboti, then filed a summons for the revocation of the grant issued to the appellant on the grounds that the appellant failed to involve the members of the family of Japheth Makoha Makomboti (the 2nd son).
4. By a ruling delivered on 30/1/2024, the summons for revocation was decided in favour of the respondent, and she was appointed as co-administrator of the deceased’s estate.
5. Consequently, the appellant proposed that the deceased’s estate be divided into specified acreages among the deceased’s beneficiaries, while the respondent filed an objection and suggested that the estate be shared equally among the beneficiaries.
6. In its judgment, the trial court adopted the respondent’s proposed method of distribution and ordered that the deceased’s estate be divided equally.
7. Being dissatisfied with the said judgment, the appellant lodged this appeal via the Memorandum of Appeal dated 9/12/2024 and raised four (4) grounds of appeal as follows: -
a) The learned trial magistrate erred in both law and fact by solely relying on section 38 of the Law of Succession.
b) The learned trial magistrate erred in law and fact by disregarding the wishes of the deceased.
c) The learned trial magistrate erred in law and fact by failing to realize that the deceased had already settled his beneficiaries.
d) The learned trial magistrate erred in both law and fact by ruling in favour of the objector despite there being sufficient evidence to the contrary.
8. The appeal was disposed off by written submissions; however, at the time of writing this judgment, only the respondent’s submissions are before me for consideration, and I have considered the same as well as the appeal before me.
ANALYSIS AND DETERMINATION
9. As this is a first appeal, the Court is duty-bound to reassess the evidence presented at trial and reach its own independent conclusions, while always bearing in mind that it did not have the advantage of observing the witnesses testify. (See Selle & Anor v Associated Motor Boat Co Ltd & Others [1968] EA 123).
10. From the foregoing, it is clear that the issue for determination before the trial court was the manner of distributing the deceased's estate. The estate consisted solely of land parcel number Malakisi/N&C/Namwela/155, measuring 2.894 Ha, and the appellant proposed the following distribution.
NAME
ACREAGE
DAVID WALIAULA MAKOKHA
0.56HA
ISAAC MAFWABI MAKOKHA
0.234HA
LONAH MUSUYA SIMIYU
0.23HA
PATRICK WANYAMA WASIKE
0.20HA
KENNEDY MASINDE WASIKE
0.20HA
WYCLIFFE NYONGESA
0.28HA
MAURICE BARASA WASIKE
0.23HA
MAURICE MAFWABI MAKOMBOTI
0.96HA
11. On her part, the respondent proposed that the entire estate of the deceased be divided equally among the three houses of the deceased’s sons.
12. In support of her objection, the respondent testified as Pw1. She stated that the deceased was her grandfather and the appellant her uncle. Her father, Japheth Makokha Makomboti, had passed away. The deceased had three wives, one of whom was the appellant's mother, and the appellant had only requested distribution to his mother’s house, leaving the other two houses unprovided for.
13. In cross-examination, the respondent testified that her mother had a parcel of land in Sango. She stated that her mother and grandmother shared the same house in Namwela. She also testified that her mother was the second wife of the deceased Japheth Makokha Makomboti and that her father never informed her of his share of the deceased's land. She added that the deceased only divided his properties among his three sons. In re-examination, it was her testimony that her father did not possess a title deed. She also stated that she had not seen in whose name the matrimonial property in Sango was registered.
14. Pw2 & Pw3, the respondent’s mother and brother, corroborated her testimony. They both testified that they did not have a house in Namwela, where the deceased hailed from, but shared a house with their husband/father’s co-wife. They added that in Namwela, they would farm together with her co-wife.
15. The appellant testified and called two other witnesses in support of his case. DW1, David Waliaula Makokha, testified that the respondent was his step-sister, with her mother being his father’s second wife. He adopted his witness statement dated 11/11/2022 as his evidence in chief, in which he reiterated the appellant’s claims and proposed mode of distribution. In cross-examination, he testified that the suit property was registered in the name of his grandfather, the deceased Yakobo Makomboti Mafwabi. He stated that his father was entitled to 3 acres out of the 9 acres of the suit property. He also said that the proposed mode of distribution by the appellant was fair and that before his father passed on, he had already distributed property to the first house in 1997.
16. The appellant testified as Dw2. He adopted his statement dated 11/11/2022 as his evidence in chief and further stated that the respondent was the daughter of his deceased brother Makoha, who had two wives. His deceased brother divided his properties between his two wives, with the property in Namwela reserved for his first wife and the one in Matunda for the second wife, who is the respondent’s mother. In cross-examination, he admitted that he left out the children of his deceased brother from the second wife because his brother had given them an inheritance prior to his death. He stated that the property in Matunda, where the respondent’s mother resided, was in the name of his deceased brother. In re-examination, he reiterated that his brother distributed his parcels of land between his two wives, with the property in Namwela set aside for his first wife.
17. Dw3 Jephaneah Kilwake Muresia adopted his statement dated 11/11/2022 as his evidence in chief and further testified that he knew the appellant and had known his family since he was a young boy. In cross-examination, he testified that he did not know the respondent’s mother prior to her husband’s death but that he knew that her husband had distributed his property between his two wives.
18. From the foregoing, the sole issue to be determined is the mode of distribution of the deceased’s estate.
19. It is worth noting that the matter before the trial court concerned a dispute over the distribution of Yakobo Makomboti Mafwabi's estate, who died intestate, with the estate comprising solely land parcel number Malakisi/N&C/Namwela/155. It is also not in contention that the deceased had three wives, who in turn had three surviving sons: Japheth Makoha Makomboti (deceased), James Wasike Makomboti (deceased), and the appellant, Maurice Mafwabi Makomboti. The respondent’s father was Japheth Makoha Makomboti (deceased). From the record, it is clear that none of the deceased’s wives was alive when the parties involved approached the court.
20. It is important to note that this matter concerns the estate of a polygamous man. Accordingly, the distribution of the estate will be governed by Sections 40(1) and 42 of the Law of Succession Act Cap 160 Laws of Kenya. Section 40(1) states that;
“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.”
21. In Estate of John Musambayi Katumanga (Deceased) [2014] eKLR Hon. Justice William Musyoka stated as follows:
“Under Section 40 of the Act, if the deceased had several wives, as opposed to households, the estate would devolve depending on the number of children. Ideally, the estate would be divided equally among all the members of the entire household, lumping the children and the surviving spouses together. After that the family members would retreat to their respective houses where Section 35 of the Act would be put into effect, so that if there was a surviving spouse in a house she would enjoy life interest over the property due to her children. The house without a surviving spouse would split its entitlement in terms of Section 38 of the Law of Succession Act, the children would divide the estate equally amongst themselves.” [Own emphasis]
22. Section 38 of the Law of Succession Act 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.” [Own emphasis]
23. In the present case, the estate to be distributed was that of Yakobo Makomboti Mafwabi, who was survived by three sons. I have also reviewed and considered the proposed mode of distribution by both the appellant and the respondent.
24. Consequently, section 38 of the Law of Succession is the relevant part of the law regarding distribution. The appellant’s allegation that his deceased brother divided his property prior to his death is unfounded; in any case, he could not distribute property belonging to his deceased father.
25. Based on the foregoing, this court is not inclined to disturb the finding and holding of the trial court in its judgment delivered on 22/11/2024.
26. The conclusion is that I find this appeal lacks merit and I dismiss it. As this concerns a family matter, I order each party to bear their own costs.
Dated, signed and delivered at Bungoma this 18 th Day of March 2026.
R. OUGO
JUDGE
In the presence of:
Franscisha Nafula Makokha/ Respondent
Appellant - Absent
hcca no. e171 of 2024- judgment 2
IN THE HIGH COURT OF KENYA AT BUNGOMA
CIVIL APPEAL NO. E171 OF 2024
MAURICE MAFWABI MAKOMBOTI ……………….……. APPELLANT
- VERSUS -
FRANCISCAH NAFULA MAKOKHA …..……………..… RESPONDENT
(Being an appeal from the judgement of Hon. H. Getenga RM delivered on the 22/11/2024 in Bungoma CMC Succession Cause No. 167 of 2020,)
JUDGMENT
1. The deceased Yakobo Makomboti Mafwabi died on 29/8/2021. He had three sons: Japheth Makoha Makomboti (deceased), James Wasike Makomboti (deceased), and the appellant herein, Maurice Mafwabi Makomboti. He left behind only a piece of land as the sole property for distribution, Land Parcel number Malakisi/N&C/Namwela/155.
2. The appellant filed a petition for Letters of Administration Intestate dated 16/7/2020 and was granted the Letters of Administration on 17/11/2021.
3. The respondent, who is a daughter of one of the deceased’s sons, Japheth Makoha Makomboti, then filed a summons for the revocation of the grant issued to the appellant on the grounds that the appellant failed to involve the members of the family of Japheth Makoha Makomboti (the 2nd son).
4. By a ruling delivered on 30/1/2024, the summons for revocation was decided in favour of the respondent, and she was appointed as co-administrator of the deceased’s estate.
5. Consequently, the appellant proposed that the deceased’s estate be divided into specified acreages among the deceased’s beneficiaries, while the respondent filed an objection and suggested that the estate be shared equally among the beneficiaries.
6. In its judgment, the trial court adopted the respondent’s proposed method of distribution and ordered that the deceased’s estate be divided equally.
7. Being dissatisfied with the said judgment, the appellant lodged this appeal via the Memorandum of Appeal dated 9/12/2024 and raised four (4) grounds of appeal as follows: -
a) The learned trial magistrate erred in both law and fact by solely relying on section 38 of the Law of Succession.
b) The learned trial magistrate erred in law and fact by disregarding the wishes of the deceased.
c) The learned trial magistrate erred in law and fact by failing to realize that the deceased had already settled his beneficiaries.
d) The learned trial magistrate erred in both law and fact by ruling in favour of the objector despite there being sufficient evidence to the contrary.
8. The appeal was disposed off by written submissions; however, at the time of writing this judgment, only the respondent’s submissions are before me for consideration, and I have considered the same as well as the appeal before me.
ANALYSIS AND DETERMINATION
9. As this is a first appeal, the Court is duty-bound to reassess the evidence presented at trial and reach its own independent conclusions, while always bearing in mind that it did not have the advantage of observing the witnesses testify. (See Selle & Anor v Associated Motor Boat Co Ltd & Others [1968] EA 123).
10. From the foregoing, it is clear that the issue for determination before the trial court was the manner of distributing the deceased's estate. The estate consisted solely of land parcel number Malakisi/N&C/Namwela/155, measuring 2.894 Ha, and the appellant proposed the following distribution.
NAME
ACREAGE
DAVID WALIAULA MAKOKHA
0.56HA
ISAAC MAFWABI MAKOKHA
0.234HA
LONAH MUSUYA SIMIYU
0.23HA
PATRICK WANYAMA WASIKE
0.20HA
KENNEDY MASINDE WASIKE
0.20HA
WYCLIFFE NYONGESA
0.28HA
MAURICE BARASA WASIKE
0.23HA
MAURICE MAFWABI MAKOMBOTI
0.96HA
11. On her part, the respondent proposed that the entire estate of the deceased be divided equally among the three houses of the deceased’s sons.
12. In support of her objection, the respondent testified as Pw1. She stated that the deceased was her grandfather and the appellant her uncle. Her father, Japheth Makokha Makomboti, had passed away. The deceased had three wives, one of whom was the appellant's mother, and the appellant had only requested distribution to his mother’s house, leaving the other two houses unprovided for.
13. In cross-examination, the respondent testified that her mother had a parcel of land in Sango. She stated that her mother and grandmother shared the same house in Namwela. She also testified that her mother was the second wife of the deceased Japheth Makokha Makomboti and that her father never informed her of his share of the deceased's land. She added that the deceased only divided his properties among his three sons. In re-examination, it was her testimony that her father did not possess a title deed. She also stated that she had not seen in whose name the matrimonial property in Sango was registered.
14. Pw2 & Pw3, the respondent’s mother and brother, corroborated her testimony. They both testified that they did not have a house in Namwela, where the deceased hailed from, but shared a house with their husband/father’s co-wife. They added that in Namwela, they would farm together with her co-wife.
15. The appellant testified and called two other witnesses in support of his case. DW1, David Waliaula Makokha, testified that the respondent was his step-sister, with her mother being his father’s second wife. He adopted his witness statement dated 11/11/2022 as his evidence in chief, in which he reiterated the appellant’s claims and proposed mode of distribution. In cross-examination, he testified that the suit property was registered in the name of his grandfather, the deceased Yakobo Makomboti Mafwabi. He stated that his father was entitled to 3 acres out of the 9 acres of the suit property. He also said that the proposed mode of distribution by the appellant was fair and that before his father passed on, he had already distributed property to the first house in 1997.
16. The appellant testified as Dw2. He adopted his statement dated 11/11/2022 as his evidence in chief and further stated that the respondent was the daughter of his deceased brother Makoha, who had two wives. His deceased brother divided his properties between his two wives, with the property in Namwela reserved for his first wife and the one in Matunda for the second wife, who is the respondent’s mother. In cross-examination, he admitted that he left out the children of his deceased brother from the second wife because his brother had given them an inheritance prior to his death. He stated that the property in Matunda, where the respondent’s mother resided, was in the name of his deceased brother. In re-examination, he reiterated that his brother distributed his parcels of land between his two wives, with the property in Namwela set aside for his first wife.
17. Dw3 Jephaneah Kilwake Muresia adopted his statement dated 11/11/2022 as his evidence in chief and further testified that he knew the appellant and had known his family since he was a young boy. In cross-examination, he testified that he did not know the respondent’s mother prior to her husband’s death but that he knew that her husband had distributed his property between his two wives.
18. From the foregoing, the sole issue to be determined is the mode of distribution of the deceased’s estate.
19. It is worth noting that the matter before the trial court concerned a dispute over the distribution of Yakobo Makomboti Mafwabi's estate, who died intestate, with the estate comprising solely land parcel number Malakisi/N&C/Namwela/155. It is also not in contention that the deceased had three wives, who in turn had three surviving sons: Japheth Makoha Makomboti (deceased), James Wasike Makomboti (deceased), and the appellant, Maurice Mafwabi Makomboti. The respondent’s father was Japheth Makoha Makomboti (deceased). From the record, it is clear that none of the deceased’s wives was alive when the parties involved approached the court.
20. It is important to note that this matter concerns the estate of a polygamous man. Accordingly, the distribution of the estate will be governed by Sections 40(1) and 42 of the Law of Succession Act Cap 160 Laws of Kenya. Section 40(1) states that;
“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.”
21. In Estate of John Musambayi Katumanga (Deceased) [2014] eKLR Hon. Justice William Musyoka stated as follows:
“Under Section 40 of the Act, if the deceased had several wives, as opposed to households, the estate would devolve depending on the number of children. Ideally, the estate would be divided equally among all the members of the entire household, lumping the children and the surviving spouses together. After that the family members would retreat to their respective houses where Section 35 of the Act would be put into effect, so that if there was a surviving spouse in a house she would enjoy life interest over the property due to her children. The house without a surviving spouse would split its entitlement in terms of Section 38 of the Law of Succession Act, the children would divide the estate equally amongst themselves.” [Own emphasis]
22. Section 38 of the Law of Succession Act 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.” [Own emphasis]
23. In the present case, the estate to be distributed was that of Yakobo Makomboti Mafwabi, who was survived by three sons. I have also reviewed and considered the proposed mode of distribution by both the appellant and the respondent.
24. Consequently, section 38 of the Law of Succession is the relevant part of the law regarding distribution. The appellant’s allegation that his deceased brother divided his property prior to his death is unfounded; in any case, he could not distribute property belonging to his deceased father.
25. Based on the foregoing, this court is not inclined to disturb the finding and holding of the trial court in its judgment delivered on 22/11/2024.
26. The conclusion is that I find this appeal lacks merit and I dismiss it. As this concerns a family matter, I order each party to bear their own costs.
Dated, signed and delivered at Bungoma this 18 th Day of March 2026.
R. OUGO
JUDGE
In the presence of:
Franscisha Nafula Makokha/ Respondent
Appellant - Absent
hcca no. e171 of 2024- judgment 2