In re Estate of Reuben Nabibia Wangokho (Deceased) [2023] KEHC 21390 (KLR)

In re Estate of Reuben Nabibia Wangokho (Deceased) (Succession Cause 10 of 2018) [2023] KEHC 21390 (KLR) (28 July 2023) (Judgment)

Neutral citation: [2023] KEHC 21390 (KLR)

Republic of Kenya

In the High Court at Bungoma

Succession Cause 10 of 2018

DK Kemei, J

July 28, 2023

Between

Benjamin Masibo Nabibia

Petitioner

and

Agnes Nasombi Wanyama

Objector

Judgment

Background 1. The deceased herein, Reuben Nabibia Wangokho, died on 13th May 1983, in Bungoma. He had married two wives during his life time and had seven daughters and four sons. It is evident that both the wives and some of his issues are now deceased.

2. Details of his household:1st Housea.Lukelesia Maruti Nabibia-widow(deceased)b.Benjamin Masibo Nabibia-sonc.John Wasike-sond.Norah Namaemba-daughtere.Elizabeth Nafuna-daughter(deceased)f.Dinah Nanjala- daughter(deceased)g.Esther Nakhungu- daughter(deceased)h.Rael Nekesa- daughter(deceased)i.Concepta Khanjila- daughter2nd Housea.Zipporah Naliaka Nabibia-widow(deceased)b.Christopher Wangamati-son (deceased)c.Charles Wanyama-son(deceased)d.Mary Nekoye-Daughter

3. After the demise of the deceased, Benjamin Masibo Nabibia who is a son from the 1st house petitioned for grant of letters of administration intestate in the Chief Magistrate’s Court, Succession Cause number 6 of 2017. The said grant was confirmed on the 5th July 2018.

4. Upon his death, the deceased had two assets, land parcel No. Kimilili/Kimilili/747 and LR. No. Ndivisi/Makuselwa/518.

5. The Objector, Amos Maombo Wanyama, is the son of the late Charles Wanyama, son to the deceased herein from the 2nd house filed an application dated 23rd August 2018 seeking for several orders inter alia; revocation and/or annulment of the grant issued to the Petitioner and the cancellation of the resultant title deeds flowing from the contentious grant.

6. Vide an amended Notice of Motion application, Agnes Nasombi Wanayama, sought to substitute Amos Maombo Wanyama as the Objector in this matter.

7. Vide orders issued on 29th April 2019, Justice S.N. Riechi directed that Agnes Nasombi Wanyama the widow of the deceased Charles Wanyama replace the Objector Amos Maombo Wanyama and that the confirmed grant issued on 5th July 2018 be revoked. The only issue pending was on the mode of distribution of the estate of the deceased and that parties were directed to file their respective schedule of distribution. The Court further directed that the issue of distribution be canvassed by way of viva voce evidence.

Hearing 8. On 17th March 2022, the matter proceeded to full hearing where the Objector, OB.PW1, Agnes Nasombi Wanyama, relied on her filed statement dated 1st July 2020 seeking the same to be adopted as evidence in chief. She testified that the deceased herein was her father-in-law as she was married to his son, the late Charles Wanyama. According to her, the deceased had the following properties: land parcel No. Kimilili/Kimilili/747 measuring approximately 50 acres and LR. No. Ndivisi/Makuselwa/518 measuring approximately 10. 5 Ha. She told the Court that the distribution of both assets should be done in such a way that under land parcel No. Kimilili/Kimilili/747 the 1st house to get 5. 25 Ha and the 2nd house to get 5. 5 Ha, and with regard to LR. No. Ndivisi/Makuselwa/518 the 1st house to get 23. 25 acres, the 2nd house to get 23. 25 acres and the daughters to share 3. 5 acres.

9. On cross-examination, she testified that she is the widow of the late Charles Wanyama and that they got married in 1972. According to her, she is occupying parcel Ndivisi/Makuselwa/518 now but with the Petitioner herein she used to reside in parcel Kimilili/Kimilili/747 at the time she got married into the family. She maintained that the Petitioner has never resided on parcel Ndivisi/Makuselwa/518 where she is currently residing. She told the Court that together with her late husband, they occupied about five acres and that the petitiner used to live on parcel Kimilili/Kimilili/747 during the lifetime of the deceased but she was not aware of when exactly he settled there. She testified that both parcel Kimilili/Kimilili/747 and parcel Ndivisi/Makuselwa/518 are separated by a road and that she has never farmed on parcel Kimilili/Kimilili/747. She insisted that the deceased never subdivided parcel Kimilili/Kimilili/747 and that it belongs to the maternal uncles to the Petitioner. She told the Court that both the late John Wasike Wachana and Reuben Wangokho were buried on parcel Ndivisi/Makuselwa/518. She further testified that all of them occupy parcel Ndivisi/Makuselwa/518 while the Petitioner solely occupies parcel Kimilili/Kimilili/747 and that they have never built homes on parcel Kimilili/Kimilili/747.

10. On re-examination, she told the Court that she could not tell when exactly the Petitioner took charge of parcel Kimilili/Kimilili/747 and that both parcels were owned by the deceased and that the same are still in the name of the deceased.

11. O.B. PW2, Mary Nekoye Wasike, relied on her filed statements dated 1st July 2020 seeking the same to be adopted as evidence in chief. She testified that the deceased herein was her father, that the Petitioner is her brother while the Objector is her sister-in-law.

12. On cross-examination, she testified that the Petitioner herein is her elder brother and that she grew up on parcel Ndivisi/Makuselwa/518. According to her, the Petitioner resided on parcel Kimilili/Kimilili/747 and that the parcel belonged to her late father. She told the Court that she is from the 2nd house and that the deceased never subdivided parcel Kimilili/Kimilili/747. According to her, her and her siblings are residing on parcel Ndivisi/Makuselwa/518 and that she has not heard anything like parcel Kimilili/Kimilili/747 belongs to petitioner’s uncles. She told the Court that the deceased used to show the parcels to his sons whenever they got married and that she wants parcel Kimilili/Kimilili/747 to be divided equally.

13. On re-examination, she told the Court that her late father had two wives and that the mother of the Petitioner used to reside on parcel Ndivisi/Makuselwa/518 and that she never occupied parcel Kimilili/Kimilili/747. She told the Court that their grandfather was buried on parcel Kimilili/Kimilili/747 and that the deceased never subdivided the land.

14. O.B. PW3, Murumba Wangamati, who is the 2nd Objector relied on his filed statements dated 11th May 2022 seeking the same to be adopted as evidence in chief. He testified that the deceased herein was his grandfather and that his father is the late Christopher Wangamati from the 2nd house. According to him, his great grandfather, Murumba Wangokho, was buried on land parcel Kimilili/Kimilili/747 and that although the deceased showed his sons portions to build their respective homes he did not distribute his estate. According to him, he disagreed with the Objector’s proposal as well as that of the petitioner that would lead to unsettlement of respective beneficiaries considering that some have extensively developed the portions as showed to them by the deceased. He testified that he resides on parcel Ndivisi/Makuselwa/518 on a portion measuring approximately nine acres and that the same place has a permanent dwelling house and graves of his father and sibling. He further testified that there is a consensus among majority of the beneficiaries that all daughters of the deceased be given a half an acre each from the land parcel Kimilili/Kimilili/747.

15. On cross-examination by Counsel for the 1st Objector, he testified that he made his own proposed schedule of distribution and noted that the Petitioner’s mode of distribution is unfair. He further noted that he objects to the 1st Objector’s proposed mode of distribution due to the issues raised factually on ground as it will not promote peaceful co-existence.

16. On cross-examination by Counsel for the Petitioner, he testified that both parcel Kimilili/Kimilili/747 and parcel Ndivisi/Makuselwa/518 belonged to the deceased and that it was not true that parcel Kimilili/Kimilili/747 was given to the 1st wife. He confirmed that he resides on parcel Ndivisi/Makuselwa/518 on a portion measuring approximately nine acres and that the Petitioner did not have any portion of land on parcel Ndivisi/Makuselwa/518.

17. The Petitioner (Pet PW1), Benjamin Masibo Nabibia, relied on his filed statements dated 13th March, 2021 which he adopted as his evidence in chief. He testified that he is the eldest son of the deceased herein and that the deceased had two parcels of land namely: parcel Kimilili/Kimilili/747 and parcel Ndivisi/Makuselwa/518. According to him, parcel Kimilili/Kimilili/747 was given to his mother by her family and that the deceased acquired parcel Ndivisi/Makuselwa/518. He testified that his other siblings are occupying parcel Ndivisi/Makuselwa/518 while he occupies parcel Kimilili/Kimilili/747. He insisted that parcel Kimilili/Kimilili/747 belonged to his maternal grandfather who gave it to his mother.

18. On cross-examination by the 1st Objector’s Counsel, he told the Court that the deceased was his father and that he had parcels of land namely parcel Kimilili/Kimilili/747 and parcel Ndivisi/Makuselwa/518. It was his evidence that at the time of the deceased’s demise, the titles were under his name but parcel Kimilili/Kimilili/747 had been given to his mother by her father and that the land records could not be in the name of his mother as she was a woman. According to him, the deceased shared out parcels of land in 1977 and relatives were involved including Ezekiel Wangukho, but he did not have the minutes on the distribution.

19. On cross-examination by Counsel for the 2nd Objector, he testified that he filed a succession cause in 2017 as the administrator and affirmed that the 2nd house did not give him their consent. He further told the Court that he could not recall when exactly parcel Kimilili/Kimilili/747 was handed over to his late mother and that it was his mother who told him but the same was not captured in his filed statement. He told the Court that after the demise of his father, his late mother never lodged a claim against the estate of the deceased so as to get back parcel Kimilili/Kimilili/747 which he insisted belonged to her. He told the Court that family members and the clan did write minutes on the orally issued instructions of the deceased but that they are not before this Court to testify. According to him, his late grandfather’s remains are buried on parcel Kimilili/Kimilili/747. He told the Court that he saw the proposed mode of distribution of the 2nd Objector and since he is just a grandson, he could not dictate to the sons of the estate of the deceased and that the deceased never gave any land to his female children since they are married off.

20. On re-examination, he told the Court that his mother informed him that her father gave her parcel Kimilili/Kimilili/747 and that a traditional ceremony was conducted which involved setting up of a homestead. He reiterated that parcel Kimilili/Kimilili/747 belonged to his maternal grandfather while parcel Ndivisi/Makuselwa/518 belonged to his father.

21. (Pet PW2), John Wasike Wachana, relied on his filed statements dated 13th March, 2021 which he adopted as his evidence in chief.

22. On cross-examination by the 1st Objector’s Counsel, he told the Court that parcel Kimilili/Kimilili/747 was bequeathed to his late mother by her father and that he resides on parcel Ndivisi/Makuselwa/518. According to him, the Petitioner consulted him prior to lodging this succession cause but he could not ascertain whether the 2nd house was consulted. He told the Court that he owns 10. 5 acres on parcel Ndivisi/Makuselwa/518 and that his mother gave him 15 acres on parcel Kimilili/Kimilili/747. He noted that the two properties are registered in the name of the deceased as they belonged to him and that he has a total of twenty-five acres while the 2nd house has about eight acres of land.

23. On cross-examination by Counsel for the 2nd Objector, he testified that the Petitioner is his elder brother and that he is the one in charge of the administration of the estate of the deceased. He noted that the Petitioner simply briefs them on what he has done. According to him, his mother gave him fifteen acres of land on parcel Kimilili/Kimilili/747 and that he is not aware of the person who gave the Petitioner land on the same parcel. He maintained that parcel Kimilili/Kimilili/747 belonged to his mother and not his father and that the deceased did the requisite sharing of his property prior to his death. He disagreed with the proposed mode of distribution of the objectors.

24. On re-examination, he told the Court that parcel Ndivisi/Makuselwa/518 measures twenty-six acres and that the deceased gave him six acres and later added him three acres.

25. (Pet PW3), Gabriel Muchumbeli, relied on his filed statements dated 20th September 2022 which he adopted as his evidence in chief. He testified that the deceased herein was his maternal grandfather and that he left behind parcel Ndivisi/Makuselwa/518 and parcel Kimilili/Kimilili/747 which was given to him by his father-in-law. According to him, the deceased was buried on parcel Ndivisi/Makuselwa/518 which was an ancestral land as parcel Kimilili/Kimilili/747 was simply gifted to him. He confirmed that the deceased did distribute the lands around 1976-1978.

26. On cross-examination by the 1st Objector’s Counsel, he told the Court that he was 20 years’ old when the deceased distributed his lands between 1976-1978. He told the Court that the deceased was the father to his mother, sister of the Petitioner. He confirmed that there are no documents to prove that the deceased was gifted by his in-law’s parcel Kimilili/Kimilili/747.

27. On cross-examination by Counsel for the 2nd Objector, he testified that he resides on parcel Ndivisi/Makuselwa/518 and that he was not present when the deceased was given parcel Kimilili/Kimilili/747. He confirmed that the father of the deceased was buried on parcel Kimilili/Kimilili/747 and that both parcels are registered in the name of the deceased.

28. on re-examination, he told the Court that the deceased used sisal plants as boundaries on the lands and that the deceased was buried on parcel Ndivisi/Makuselwa/518.

29. Vide directions dated 14th February 2023, this Court directed parties to file and exchange their respective submissions. They duly complied.

30. Vide submissions dated 31st March 2023 and filed in court on 3rd April 2023, the 1st Objector submits that beneficiaries of the deceased are:1st Housea.Lukelesia Maruti Nabibia……widow(deceased)b.Benjamin Masibo Nabibia……sonc.John Wasike……………………sond.Norah Namaemba……………. daughtere.Elizabeth Nafuna………………daughter(deceased)f.Dinah Nanjala…………………. daughter(deceased)g.Esther Nakhungu-……………..daughter(deceased)h.Rael Nekesa……………………. daughter(deceased)i.Concept Khanjila………………. daughter2nd Housea.Zipporah Naliaka Nabibia…………widow(deceased)b.Christopher Wangamati………. son (deceased)c.Charles Wanyama………………. son(deceased)d.Mary Nekoye……………………. Daughter

31. The 1st Objector submitted that the deceased’s estate comprises of two parcels of land namely: land parcel No. Kimilili/Kimilili/747 measuring approximately 50 acres and LR. No. Ndivisi/Makuselwa/518 measuring approximately 26 acres.

32. Counsel submitted that at the demise of the deceased and as per the current records the owner of the two parcels of land is the deceased as they are still registered in his name. He argued that land parcel No. Kimilili/Kimilili/747 forms part of the estate of the deceased and no evidence was adduced to state the contrary. He urged this Court equally distribute the estate of the deceased. He relied on the case of HC. SUCC. CAUSE NO. 141 of 2015 in the estate of Stakus Osunga Amino(deceased) and Eldoret CA No. 66 of 2022 Mary Rono vs Jane Rono.

33. The Petitioner vide submissions dated 3rd April 2023 and filed in court on even date submitted that this Court ought to respect the wishes of the deceased as made during his lifetime. It was also submitted that parcel number Kimilili/Kimilili/747 does not form part of the estate of the deceased as the same had been gifted to the mother of the petitioner from her father and which the deceased distributed to him. It was also submitted that the deceased held parcel number Kimilili/Kimilili/747 in customary trust for the 1st wife’s house and hence the same does not qualify as part of the estate of the deceased under section 40 of the Law of Succession Act. It was further submitted that the said parcel number 747 qualifies as a gift inter vivos in which the Petitioner’s mother was gifted the land by her father while he was alive. It was finally submitted that it is unfair for the 2nd objector to seek to propose to distribute only parcel 747 and leave out parcel 518 yet the deceased only held parcel 747 in customary trust for the 1st wife’s house and thus had no property to pass as a trustee. Learned counsel sought for the dismissal of the objection.

34. The 2nd Objector vide submissions dated 20th March 2023 and filed in Court on 3rd April 2023 submitted that the estate of the deceased is currently distribute as follows:a.Benjamin Masibo Nabibia – 35 acres on land parcel No. Kimilili/Kimilili/747b.John Wasike Wachana-12 acres on LR. No. Ndivisi/Makuselwa/518 and 15 acres on parcel No. Kimilili/Kimilili/747c.Agnes Nasombi Wanyama-5 acres on LR. No. Ndivisi/Makuselwa/518d.Murumba Wangamati-9 acres on LR. No. Ndivisi/Makuselwa/518

35. He submitted that the proposed re-distribution of the estate will see the sons and the daughters of the deceased respectively get even shares for fairness. He proposed that each daughter of the estate of the deceased gets 0. 5 acres on parcel No. Kimilili/Kimilili/747 and that the remainder be shared out equally amongst the four sons/representatives with each of them getting 18. 125 acres. He further proposed that the mode of distribution respects existing boundaries occupied by various beneficiaries to ensure no one is displaced from his/her home or investment. It was submitted that the proposal by the 2nd Objector is in line with the provisions of section 38 of the Law of Succession Act where each beneficiary gets an equal share.

36. From the foregoing, it is clear that the parties herein are not in total agreement on the mode of distribution of their father’s estate. I think it is important to point out at this juncture that for as long as parties are not in agreement, it is left to the court to apply the laid down law and principles to arrive at what the court would consider to be fair and just in the circumstances of the case.

37. I have considered the averments of the parties, and the mode of distribution of the deceased’s estate that each proposes. I have also considered the authorities relied on, and the relevant provisions of the law cited. In my view, one main issue arises for determination namely;i.which of the proposed mode of distribution of the estate between the houses is fair?

38. After carefully analysing the proposed modes of distribution of the estate of the deceased, it is clear to me that the mode of distribution proposed by the parties discriminates against the daughters of the deceased. It allocates to the sons massive acres each and the daughters 0. 5 acres each as pert the 2nd Objector, 3. 5acres as per the 1st Objector and none as per Petitioner’s modes of distribution respectively. Given that the parties argue strongly in favour of a distribution of the deceased’s property on the basis of the Law of Succession Act, it is hard to understand the basis on which they propose an allocation of sons and daughters, that is not equal. The mode of distribution proposed by all the parties is therefore unacceptable and in contravention of the law on two levels: It discriminates against daughters of the estate of the deceased and which is against the provisions of Article 27 of the Constitution of Kenya 2010; and is in contravention of section 40 of the Law of Succession Act where all the beneficiaries and surviving widows are taken as a whole unit.

39. Section 40(1) of the Law of Succession Act provides for distribution of the estate of a polygamous deceased’s person as follows:“40(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.”

40. The above provision deals with the distribution of the estate of a polygamous intestate person. However, the said section does not take away the discretion of the Court to distribute the estate of a deceased person fairly. In this court’s view, sections 27, 28 and 35 of the Act clothe the Court with wide discretion to provide for dependents or beneficiaries.

41. It is therefore evident that, although section 40 of the Law of Succession Act provides a general provision for the distribution of the estate of a polygamous deceased person, the Court has discretion to take into account factual circumstances of the particular case that may be relevant in ensuring equitable and fair distribution of the estate.

42. This Court is not bound to accept the mode of distribution based on open discrimination of the female children because disinheriting from the deceased’s estate would be an ‘unequal process’ by simply stating that property distribution of the deceased was never meant to be equal. Further, the suggested modes of distribution would be to allow the perpetuation of discrimination against women for simply being women or girls or daughters. It would be allowing the desecration of the constitutional rejection of such acts and it would be an abdication to protect and defend a very key constitutional principle; non-discrimination.

43. Prior to the promulgation of the Constitution in 2010, Makhandia J (as he then was) In Re Estate of Solomon Ngatia Kariuki (Deceased) (2008) Eklr, while speaking about the existing provisions of the Law of Succession Act, made a very strong statement on the issue of discrimination against daughters generally in succession matters and he said;“The Law of Succession Act does not discriminate between the female and male children or married or unmarried daughters of the deceased person when it comes to the distribution of his estate.….”

44. The non-discrimination principle stated in section 38 of the Law of Succession Act is given force by the Constitution of Kenya 2010, which outlaws discrimination based on gender. Under Article 27 persons of either gender are to be treated equally in all respects, including succession. Previously, the old Constitution allowed for the application of laws that were discriminatory. African customary law, which permitted discrimination of daughters, was one such law. The Constitution promulgated in 2010 does not carry similar provisions. The only provision which allows limited discrimination is Article 24(4) of the Constitution, but the same is limited to persons who profess the Muslim faith. The deceased did not die a Muslim, and, therefore, Article 24(4) is not relevant to these proceedings.

45. I am also in complete agreement with the holding of Gikonyo J, who put it very clearly in the Matter of the Estate of M’Ngarithi M’Miriti Alias Paul M’Ngarithi M’Miriti (Deceased) [2017] KLR, regarding the discrimination of daughters in inheritance;“From the arguments coming through, it is clear issues to do with discrimination based on gender and sex have emerged. There were bad times in the heavily patriarchal African society; that being born as daughter disinherited you. And so, even the judicial journey to liberate daughters from being so down-trodden by the patriarchal society in Kenya on matters of inheritance has been long and painful. As a matter of fact, due to the constitutional architecture of our nation at the time, before 2010, we only saw pin-prick thrusts and rapier-like strokes by courts on these persistent patriarchal biases. But things changed when RONO vs. RONO [2008] 1 KLR 803 delivered the downright bludgeon-blow on these discriminatory practices against women in inheritance; it splendidly paid deference to the international instruments against all forms of discrimination against women especially the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW). And, I am happy to say that from thence, there are many cases- and the number is rising by the day as courts implement the Constitution- which states categorically that discrimination in inheritance on the basis of gender or sex or status is prohibited discrimination in law and the Constitution.”

46. Section 38 of the Law of Succession Act enshrines the principle of equal distribution of the net intestate estate to the surviving children of the deceased irrespective of gender and whether married and comfortable in their marriage or unmarried. Therefore, a son will not have priority over a daughter of the deceased simply because he is male; all- male and female siblings- are equal before the law and are entitled to equal protection of the law.

47. It is evident from the foregoing that this Court would be failing in its constitutional mandate to uphold a disputed mode of distribution that is based on an open discrimination on the grounds of gender and sex. The fact of the equality of the children in the inheritance of their parents’ property should be the norm. Any exception must have a basis. In this case the sharing of large acres of property among the sons only has not been given any legal basis. The same is not tenable.So, what is the acceptable mode of distribution? The deceased died intestate. He was polygamous. At the time of distribution of the estate, there were surviving children and dependants. The best mode of distribution of the estate of the deceased would be that of sharing equally between the two houses. None of the witnesses tendered evidence to the effect that the deceased had given any express instructions regarding the distribution of the land parcel No. Kimilili/Kimilili/747 and LR. No. Ndivisi/Makuselwa/518. The attempts by the Petitioner to resort to unsubstantiated clan and relative meetings that supposedly happened prior to the demise of the deceased to justify his mode of distribution must be rejected as the same cannot override the constitutional provisions that safeguard discrimination against certain persons on ground of gender. It transpired from the evidence that the remains of father to the deceased herein one Murumba Wangokho were buried on parcel number Kimilili/Kimilili/747 which implies that the land was ancestral land which passed on to the deceased herein. The petitioner did not convince this court that the said property was a gift inter vivos by his maternal grandfather to his mother and held in trust by the deceased for the 1st wife’s household. Hence, the said property is available for distribution among the dependants of the deceased herein.

48. Lastly, it is noted that not all of the surviving female children were invited to appear in Court to state whether or not they wish to be given a share of the estate and the one who testified did insinuate the importance of equal distribution of her father’s assets between the two houses. It is also noted that the said female children of the deceased did not file affidavits renouncing a claim to the estate. The distribution as ordered by this Court will not prejudice them since their interests will be taken care of under their respective households. All this boil down to the conclusion that the two parcels of land belonging to the deceased must be shared equally between the two houses of the deceased and that each house gets 25 acres in LR. Kimilili/Kimilili/747 and 13 acres in LR Ndivisi/Makuselwa/ 518. The Petitioner herein will hold the shares in trust for the 1st house while the Objector will hold the shares in trust for the 2nd house. I find that this is the best and fair manner the estate of the deceased ought to be shared among his households.

49. In the result, it is my finding that the Objector’s protest has merit. The same is allowed and that the estate of the deceased herein shall be shared equally between the two houses as follows:a.LR No. Kimilili/Kimilili/747-25 acres to be held in trust by Benjamin Masibo Nabibia on behalf of the 1st house.-25 acres to be held in trust by Agnes Nasombi Wanyama on behalf of the 2nd house.b.LR No. Ndivisi/Makuselwa/518 13 acres to be held in trust by Benjamin Masibo Nabibia on behalf of the 1st house.

13 acres in trust by Agnes Nasombi Wanyama on behalf of the 2nd house.c.The parties to engage the County Surveyor Bungoma who will visit the two parcels of land and carry out the exercise of sub division and to ensure that the developments on the ground and occupation are considered so as to leave minimal disruptions.Each party to bear their own costs.

DATED AND DELIVERED AT BUNGOMA THIS 28TH DAY OF JULY 2023. D.KEMEIJUDGE