In re Estate of Ainea Masinde Walubengo (Deceased) [2022] KEHC 13934 (KLR)

In re Estate of Ainea Masinde Walubengo (Deceased) (Succession Cause 67 of 2001) [2022] KEHC 13934 (KLR) (7 October 2022) (Ruling)

Neutral citation: [2022] KEHC 13934 (KLR)

Republic of Kenya

In the High Court at Bungoma

Succession Cause 67 of 2001

SN Riechi, J

October 7, 2022

IN THE MATTER OF THE ESTATE OF AINEA MASINDE WALUBENGO-DECEASED CHARLES MUSUNGU MASINDE ..............................1ST PETITIONER ANN NANJALA MASINDE.....................................2ND PETITIONER PETER WANYAMA OKUMU..................................3RD PETITIONER VERSUS PATRICK WAMALWA MASINDE...............................1ST OBJECTOR SIMON WEKESA SIMIYU.......................................2ND OBJECTOR ALBERT NYONGESA.............................................3RD OBJECTOR

Ruling

1. The distribution herein relates to the deceased’s 2 parcels of land namely Bokoli/bokoli/XXX (hereinafter Bokoli Plot) measuring 18. 5 acres and Bungoma/tongaren/XXX (hereinafter Tongaren Plot) measuring 15 acres. By a judgement of this court delivered on October 5, 2017, Aroni J decreed that the estate be shared in accordance with the provisions of section 40 of Law of Succession Act cap 160.

2. Subsequently, on Novemebr 5, 2018 Charles Musungu Masinde, Dinah Nabututu, Anna Nanjala Masinde, Peninah Nelima Khaemba, Titus Nyongesa Masinde, Dickson Wanyama Masinde, Isaac Masinde Khaemba, Felisia Ombonya Sande, Zakayo Wafula Masinde, Martin Sikuku Masinde and Leah Wanjala Wakhungu appeared before the court and affirmed their agreement with the proposed mode of distribution as hereunder;Bungoma/tongaren/XXX1. Charles Musungu Masinde- 2. 5 acres2. Anna Nanjala- 1 acre3. Isaac Masinde Khaemba- 2 acres4. Felisia Ombonya Masinde- 2 ½ acres5. Zakayo Wafula Masinde- 2 ½ acres6. Martin Sikuku Masinde- 2 ½ acresBokoli/bokoli/XXX1. Dinah Nabututu- 1 ½ acres2. Peninah Nelima- 1 ½ acres3. Titus Nyongesa- 2 ½ acres4. Dickson Wanyama Masinde- 2½ acres5. Isaac Masinde Khaemba- ½ acre6. Leah Nanjala Wakhungu -2 ½ acres

3. Patrick Wamalwa Masinde on his part objected to the distribution on the ground that in as much as he agrees with the allocation of 2. 5 acres out of Bokoli plot, he had not been shown the position on the ground and that he wishes to be given land in Tongaren plot.

4. Simon Wekesa Masinde on his part objected to the proposed mode on the ground that though he is satisfied with the 2. 5 acres allocated in Bokoli plot, he wishes to stay in Tongaren plot.

5. Albert Nyongesa on his part stated that he is not satisfied with the 2. 5 acres allocated in Bokoli since his father had given him 9 acres in the said parcel of land.

6. According to a hand-sketch drawn by Titus; Patrick and Simon currently occupy the Tongaren plot even though the same is not drawn to scale, the position of their respective occupation on the ground have been indicated. Both are agreeable to their allocation in the Bokoli plot but their wish is to stay in Tongaren. This means that they would wish to get allocation in both parcels.

7. According to Albert Nyongesa, his late father had divided the Bokoli plot giving him one half and Jared Okumu-deceased the other half. The hand drawn sketch by Titus shows that indeed the land in Bokoli is occupied by Leah Nanjala Wakhungu, Jared Okumu’s widow who appeared in court and was satisfied with 2. 5 acres so allocated.

8. Albert’s contention on the issue cannot be true since the sketch purportedly drawn by his father and filed in court only refers to land parcel in Tongaren. In any case, the same is undated and bears no signature that can be attributed to the deceased.

9. Having considered their respective grounds of objection to the mode of distribution, the court finds that the same is not merited since all the parties save the 3 are agreeable to the proposal. The occupation of the Bokoli plot favours only 2 beneficiaries and there is need for the estate to be divided equitable among all the beneficiaries in terms of section 40 ofLaw of Succession Act, cap 160.

10. The court has taken into consideration the principles enunciated by section 40 and the various authorities on the subject extensively discussed by Aroni J in her judgement and the court is satisfied that the mode of distribution filed in court on October 26, 2018 by the petitioner is fair and accords with the principle of equitable distribution as follows;Bokoli/bokoli/XXX1. Leah Nanjala Wakhungu- 2. 5 acres2. Peninah Nelima- 1. 5 acres3. Dinah Nabututu 1. 5 acres4. Albert Nyongesa- 2. 5 acres5. Simon Wekesa Masinde- 2. 5 acres6. Patrick Wamalwa Masinde- 2. 5 acres7. Tutus Nyongesa Masinde-2. 5 acres8. Dickson Wanyama Masinde-2. 5 acres9. Isaac Khainea Masinde 0. 5 acresBungoma/tongaren/XXX1. Charles Musungu Masinde- 2. 5 acres2. Isaac khainea Masinde- 2. 0 acres3. Felisia Ombonya Masinde- 2. 5 acres4. Zakayo Wafula Masinde- 2. 5 acres5. Martin Sikuku Masinde- 2. 5 acres6. Annah Nanjala Masinde 1. 0 acre

11. As such, in addition to the mode of distribution stated above, the objectors that is; Patrick Wamalwa Masinde, Simon Wekesa Simiyu and Albert Nyongesa are allocated 2. 5 acres each in land parcel Bokoli/bokoli/XXX.

12. A certificate of confirmation of grant do issue forthwith in terms aforesaid.

DATED AT BUNGOMA THIS 7TH DAY OF OCTOBER, 2022. S.N. RIECHIJUDGE