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JudgmentIn the Estate of Gicheru Johnson Evan9 min read

In the Estate of Gicheru Johnson Evan

High Court at Milimani High Court · · Nyaundi Patricia Mande, SC

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John Evan Gicheru alias Johnson Evans Gicheru alias Mr. Johnson M. Evans died intestate on 25 th December 2020. Grant of Letters of Administration Intestate was issued Margaret Wangechi Gicheru on 9 th May 2023.
The deceased is survived by the following;
Margaret Wangechi Gicheru- widow (deceased).
Florence Wanjiru Gicheru –daughter.
Rosalind Wanjiku Gicheru –daughter.
Evalyne Njeri Gicheru – daughter.
Evan Njue Gicheru- son.
Joseph Irungu Gicheru- son.
Grace Wairimu Gicheru- daughter.
Lilian Muthoni Gicheru- daughter.

Subsequent to the grant of letters of administration intestate the administrator presented summons for confirmation of grant dated 22 nd November 2025. Not all the beneficiaries agreed to the proposed mode of distribution. The parties were referred to Court Annexed Mediation which gave rise to a partial settlement agreement dated 14 th August 2024 which was adopted as an order of the court. The parties agreed;
Land Title No. Mutira/Kikrunda/1983 to be shared equally between Evan Njue Gicheru and Joseph Irungu.
Land Title No. Mutira/Kaiga/05 to be shared equally between Florence Wanjiru Gicheru, Rosalind Wanjiku Gicheru, Evalyne Njeri Gicheru, Grace Wairimu Gicheru and Lilian Muthoni Gicheru.
Title Deed No. KJD/Kaputie- North/40301 be shared as follows;
All the seven children to get one acre each.
The mother to get three acres.
Motor Vehicle Registartion No. KBV 987 M Volks Wagen Toureg goes to Margaret Wangechi Gicheru.
Kenya Electricity Generating Company Ltd (KENGEN) shares go to Margaret Wangechi Gicheru
Kirinyaga Traders Company Limited Shares goes to Evan Njue Gicheru.
The family to follow up on properties mentioned and their clear position of existence which could not be ascertained during mediation process.
The parties failed to agree on the mode of Distribution of the following assets-
I.R 137404.
I.R 137403.
I.R 95244.
I.R 95245.
I.R 105343.
I.R 105342.
I.R 95243.
The court therefore directed that that the protestors file their mode of distribution. Rosalind Wanjiku Gicheru, Lilian Muthoni Gicheru and Florence Wanjiru Gicheru filed their proposed mode of distribution dated 10 th March 2025 as follows;
LIST OF PROPERTIES/ASSETS
BENEFICIARY
SHARE

Title Deed No. Mutira/Kirunda/1983
Evan Njue Gicheru
Joseph Irungu Gicheru
Equal shares

Title Deed No. Mutira/Kiaga/605
Florence Wanjiru Gicheru
Rosalind Wanjiku Gicheru
Evalyne Njeri Gicheru
Grace Wairimu Gicheru
Lilian Muthoni Gicheru
Equal shares

Title Deed No. KJD/Kaputie-North/40301
Margaret Wangechi Gicheru
Evan Njue Gicheru
Joseph Irungu Gicheru
Florence Wanjiru Gicheru
Rosalind Wanjiku Gicheru
Evalyne Njeri Gicheru
Grace Wairimu Gicheru
Lilian Muthoni Gicheru
Equal shares

Certificate of Title No. IR 137403 (half)
Margaret Wangechi Gicheru
Evan Njue Gicheru
Joseph Irungu Gicheru
Florence Wanjiru Gicheru
Rosalind Wanjiku Gicheru
Evalyne Njeri Gicheru
Grace Wairimu Gicheru
Lilian Muthoni Gicheru
Equal shares

Certificate of Title No. IR 137404 (half)
Margaret Wangechi Gicheru
Evan Njue Gicheru
Joseph Irungu Gicheru
Florence Wanjiru Gicheru
Rosalind Wanjiku Gicheru
Evalyne Njeri Gicheru
Grace Wairimu Gicheru
Lilian Muthoni Gicheru
Equal shares

Certificate of Title No. I.R 95243 (half)
Margaret Wangechi Gicheru
Evan Njue Gicheru
Joseph Irungu Gicheru
Florence Wanjiru Gicheru
Rosalind Wanjiku Gicheru
Evalyne Njeri Gicheru
Grace Wairimu Gicheru
Lilian Muthoni Gicheru
Equal shares

Certificate of Title No. I.R 95244 (half)
Margaret Wangechi Gicheru
Evan Njue Gicheru
Joseph Irungu Gicheru
Florence Wanjiru Gicheru
Rosalind Wanjiku Gicheru
Evalyne Njeri Gicheru
Grace Wairimu Gicheru
Lilian Muthoni Gicheru
Equal shares

Certificate of Title No. I.R 95245 (half)
Margaret Wangechi Gicheru
Evan Njue Gicheru
Joseph Irungu Gicheru
Florence Wanjiru Gicheru
Rosalind Wanjiku Gicheru
Evalyne Njeri Gicheru
Grace Wairimu Gicheru
Lilian Muthoni Gicheru
Equal shares

Certificate of Title No. I.R 105342 (half)
Margaret Wangechi Gicheru
Evan Njue Gicheru
Joseph Irungu Gicheru
Florence Wanjiru Gicheru
Rosalind Wanjiku Gicheru
Evalyne Njeri Gicheru
Grace Wairimu Gicheru
Lilian Muthoni Gicheru
Equal shares

Certificate of Title No. I.R 105343 (half)
Margaret Wangechi Gicheru
Evan Njue Gicheru
Joseph Irungu Gicheru
Florence Wanjiru Gicheru
Rosalind Wanjiku Gicheru
Evalyne Njeri Gicheru
Grace Wairimu Gicheru
Lilian Muthoni Gicheru
Equal shares

Motor Vehicle Registration No. KBV 987 M Volks Wagen Toureg
Margaret Wangechi Gicheru
Absolutely

KENGEN Shares
Margaret Wangechi Gicheru
Absolutely

Kirinyaga Traders Company Limited Shares
Evans Njue Gicheru
Absolutely

Margaret Wangechi Gicheru filed a response to the above proposed mode of distribution which is dated 9 th June 2025. She opposes the protestors proposed mode of distribution. She avers that parties entered in to a consent on how some properties should be distributed. That the proposed mode of distribution includes some of these properties in the mediation report. She opposes the distribution of KJD/Kaputie- North/40301 to be shared equally amongst all the beneficiaries. She avers that she has put up a permanent house in one of the portion. She argues that the cost of sub dividing the properties and the beneficiaries will end up with small portions which will diminish the value of the properties.
She proposes the properties be consolidated as one property then she takes half of the total acreage and share the remaining with her seven children. Alternatively, each child is allocated a parcel of land then she excises half of it from each child. She avers that the seven properties have an outstanding land rates of Kshs. 589, 850. She urged the court to allow her proposed mode of distribution. She proposes that the remaining seven properties be distributed as follows;
NO.
DESCRIPTION OF PROPERTIES
BENEFICIARY
SHARE

1.
Certificate of Title No. I.R 95245 (half)
Evan Njue Gicheru
Absolute

2.
Certificate of Title No. I.R 95244 (half)
Rosalind Wanjiku Gicheru
Absolute

3.
Certificate of Title No. I.R 95243 (half)
Florence Wanjiru Gicheru
Absolute

4.
Certificate of Title No. I.R 105343 (half)
Evalyne Njeri Gicheru
Absolute

5.
Certificate of Title No. I.R 105342 (half)
Grace Wairimu Gicheru
Absolute

6.
Certificate of Title No. IR 137404 (half)
Lilian Muthoni Gacheru
Absolute

7.
Certificate of Title No. IR 137403 (half)
Joseph Irungu Gicheru
Absolute

Parties filed written submissions in support of their proposed mode of distribution.
ADMINISTRATOR’S WRITTEN SUBMISSIONS.
The Administrator submits that the objection is an abuse of the court process because it was filed out of the stipulated 30 days as provided by Section 67 and 68 of the Law of Succession Act. Reference was placed on the decision in In re Estate of Caleb Oluchina Opuka, Deceased [2019] KEHC 1058 (KLR). She further submits that the affidavit filed by the protestors is not a protest. According to her, a person objecting to the confirmation of a grant is required to file a protest and not an affidavit. Reliance was placed on the decision in In re Estate of David Ngoosa Mua (Deceased) [2016] KEHC 5985 (KLR) . Relying on the decision of Muhuri Muchiri v Hannah Nyamunya (Sued as the Administrator of the Estate of Njenga Muchiri also Known as Samuel Njenga Muchiri (Deceased) (1076 of 2014) [2015] KEELC 499 (KLR) (Environment and Land) (7 May 2015), the administrator submits that the remaining properties are registered in her name and that of the deceased. According to her, she is a tenant in common and is therefore entitled to half of each property. She urged the court to distribute the remaining properties to each beneficiary then she excises half from each one of them.
PROTESTORS WRITTEN SUBMISSIONS.
The protestors submit that although the surviving wife of the deceased is entitled to a life interest, the court should not award the same to her. Instead, the court should consider the interest of the other beneficiaries and distribute the properties equally amongst them.
ANALYSIS AND DETERMINATION.
The issue for determination is;
How the estate should be distributed.
What constitutes estate or free property of the deceased?
It is common ground that the parcels of land are registered in the joint names of the deceased and the administrator as tenants in common in equal shares. Only half of each parcel is available for distribution. There are 3 proposals on how the half share of the deceased should be distributed.
The administrators proposes that since the parcels of land are neighboring each other, she be allowed to consolidate all the parcels of land, divide in two retaining her share and then she subdivides the other half between the 7 beneficiaries, she is prepared to surrender her life interest.
She has a second proposal, she excise her half portion from each parcel and then the remaining half be registered in the name of an individual child, for each of the 7 parcels of land. She will again forfeit her life interest.
The 3 rd proposal is by the protestors. They propose that each of the parcels of land be divided equally among the 8 beneficiaries. They base their proposal on the provisions of Sections 29, 35 and 38 of the Law of Succession Act, which requires that in the case of intestate administration the estate be divided equally among all the beneficiaries.
The administrator is opposed to the proposal as in her view it will cause a devaluation of the property and that the resulting parcels will be small. Further she states that cost of subdividing the properties is prohibitive if the Court adopts the proposal by the protestors. Courts step in to distribute the estate when as in the current case parties are unable to agree.
As well articulated in the celebrated decision of Mary Rono vs Jane Rono & Another, [2005] eKLR,  the principle of equal shares in land distribution is tempered by the principle of equitable distribution. This approach allows the Court to take an approach that avoids physical division of each parcel of land that may result in uneconomical sizes or increases the Costs of transmission if this can be avoided. The Court in exercising its discretion should ensure a fair distribution of the deceased’s estate.
Having regard to the circumstances, I favour the first proposal of the administrator. She has waived her life interest. She is entitled by operation of law to half share of each of the parcels of land. She has forfeited her interested in the half that comprises the deceased’s estate.
It is fair therefore that she be allowed to consolidate the parcels, divide the emerging parcel of land in half. Retain her half and then divide the other half in 7 equal shares.
In the affidavit of protest, the protestors seek to alter the mode of distribution with regard to parcel, Title Deed No. KJD/Kaputie-North/40301. This is not possible as the same was already resolved in the partial settlement agreement that has since been adopted by the Court.
On account of the foregoing the following are the final orders; The Grant issued to the Administrator herein on 9 th May 2023 is confirmed
The Estate of the Deceased is to be distributed as hereunder;

Title Deed No. Mutira/Kirunda/1983 to be shared equally between Evan Njue Gicheru and Joseph Irungu Gicheru.
Title Deed No. Mutira/ Kaiga/605 to be shared equally between Florence Wanjiru Gicheru, Rosalind Wanjiku Gicheru, Evalyne Njeri Gicheru, Grace Wairimu Gicheru and Lilian Muthoni Gicheru.
Title Deed No. KJD/Kaputie- North 40301 to be shared as follows;
Margaret Wangechi Gicheru- 3 acres.
Evan Njue Gicheru – 1 acre.
Joseph Irungu Gicheru- 1 acre.
Florence Wanjiru Gicheru -1 acre.
Rosalind Wanjiku Gicheru – 1 acre.
Evalyne Njeri Gicheru- 1 acre.
Grace Wairimu Gicheru – 1 acre.
Lilian Muthoni Gicheru – 1 acre.
Motor Vehicle Registartion No. KBV 987 M Volks Wagen Toureg goes to Margaret Wangechi Gicheru.
Kenya Electricity Generating Company Ltd (KENGEN) shares go to Margaret Wangechi Gicheru
Kirinyaga Traders Company Limited Shares goes to Evan Njue Gicheru.
With regards to I.R 137404, I.R 137403., I.R 95244., I.R 95245., I.R 105343., I.R 105342, I.R 95243 the same shall be registered in the name of the Administrator. The Administrator shall consolidate the same into a single parcel of land and then hive off her ½ share of the consolidated title and divide the other half in equal shares between the 7 children of the deceased.
The Administrator will finalise transmission of the Estate within 9 months
Mention on 5 th October 2026 to confirm compliance.
Parties are at liberty to appeal, any party exercising their right of appeal to do so within 30 days
Each party shall bear their own costs.

SIGNED DATED AND DELIVERED IN VIRTUAL COURT THIS 28 TH DAY OF NOVEMBER, 2025.

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    In the Estate of Gicheru Johnson Evan In the Estate of Gicheru Johnson Evan