HIGH COURT SUCCESSION CAUSE NO. 348 OF 2008
IN THE MATTER OF THE ESTATE OF KARIUKI MAUCHU (DECEASED)
JUDGEMENT
1. The three Administrators of this estate filed in Court a Summons for Confirmation of Grant dated 24 th November 2022 . In response to that Summons two Affidavits of Protest were filed as follows;-
(i) Affidavit of Protest dated 18 th January 2023 sworn by JULIANA WACERA KARIUKI (hereinafter the 1 st Protestor)
(ii) Affidavit of Protest dated 18 th January 2023 sworn by JANE NYAGUTHII KARIUKI (hereinafter the 2 nd Protestor)
2. The protest was heard by way of oral evidence in open court.
BACKGROUND
3. This succession cause relates to the estate of the late KARIUKI MAUCHU who died intestate on 2 nd February 2008 . A copy of the Death Certificate Serial Number 331586 appears as Annexture
JNNK ‘1’ to the Petition for letters of Administration Intestate dated 24 th June 2008 .
4. The Deceased was survived by several children. The only asset left behind by the Deceased was a parcel of land known as LR No. AGUTHI/GATITU/2968 (hereinafter referred to as the ‘suit land’)
5. Following the demise of the Deceased the 2 nd Protestor Jane Nyaguthii sought and obtained Grant of letters of Administration which were issued to her on 2 nd June 2009 . The said Grant was thereafter confirmed on 26 th February 2010 and the only asset being the suit land was to devolve entirely to the 2 nd Protestor.
6. On 18 th September 2013 one of the beneficiaries of the estate SILVESTER NGUNJIRI KARIUKI filed a Summons for revocation of Grant. That Summons was heard in the High Court at Nyeri and vide a judgment delivered on 12 th October 2018 , Hon. Justice NGAAH revoked the Grant which had been issued to the 2 nd Protestor and directed that title in LR Aguthi/Gatitu/2968 revert back to the name of the Deceased.
7. Following revocation of the Grant which had been issued to the 2 nd Protestor, a fresh grant was then issued to the three (3) respondents. On 24 th November 2022 the three Administrator filed a Summons for confirmation of grant and in their supporting affidavit it was proposed that the suit land be allocated absolutely to the 1 st Respondent Sylvester Ngunjiri Kariuki . The two protestors then filed Affidavit of Protest.
THE EVIDENCE
8. The 2 nd Protestor Jane Nyaguthii Kariuki testified as PW1 . The 2 nd Protestor states that she is a daughter of the Deceased and therefore is entitled to a share of his estate. She states that she lived with and was cared for by the Deceased who also paid her school fees.
9. The 2 nd Protestor stated that the Deceased owned a large parcel of land which he partitioned into several plots. That parcel No. LR Aguthi/Gatitu/2968 was supposed to be allocated to her according to the wishes of the Deceased. The 2 nd Protestor opposed the allocation of the said parcel of land to the 1 st Administrator.
10. PW2 JULIANA WACEKE KARIUKI largely repeated the evidence of
PW1. ‘Juliana’ told the court that she was a daughter of the Deceased. PW2 stated that the Deceased owned a large parcel of land which he subdivided into several plots. That the family all agreed that Parcel No. 2968 was to be allocated to the 2 nd Protestor.
11. DW1 Sylvester Ngunjiri Kariuki was the 1 st Administrator. He told
the court that the Deceased who was his father left behind six (6)
children. DW1 vehemently denies that the 2 nd Protestor was a child of the Deceased. He asserts that Jane Nyaguthii was a daughter to Lucy Wanjiru who was the daughter of the Deceased. Therefore according to DW1 the 2 nd Protestor was ‘ grand-child ’ of the Deceased and was therefore not a direct beneficiary to the estate.
12. The Administrators urge this court to dismiss the two protests and
confirm the Grant as prayed in the summons dated 24 th November 2022 .
13. At the close of oral evidence the parties were invited to file their written
submissions. The Respondents filed the written submissions dated 4 th March 2026 whilst the Protestors relied on their written submissions dated 19 th March 2026.
ANALYSIS AND DETERMINATION
14. I have carefully considered the Protests filed in this matter, the
evidence on record as well as the written submissions filed by both parties.
15. The 2 nd Protestor states she is a daughter of the Deceased Kariuki
Mauchu and that she is therefore a direct beneficiary to the estate of the Deceased. The 1 st Protestor ‘ Juliana’ supports the assertion of the 2 nd Protestor that she is a daughter of the Deceased and is entitled
to a share of the estate.
16. The 2 nd Protestor has not adduced any tangible and/or documentary
evidence to confirm her assertion that she is a daughter of the Deceased - no birth certificate was produced as evidence.
17. Despite her protestations that the Deceased was her father in her own
affidavit of Protest at Paragraph 1 the 2 nd Protestor avers that she was brought up by the Deceased and her grand-mother in their homestead. This implies that the Deceased was in actual fact her grand-father not her father.
18. Likewise in her written statement dated 16 th June 2023 the 2 nd
Protestor states as follows
“ The deceased in this cause is my grandfather . As a young child, youth school days and adulthood I was brought up by the deceased and my grandmother. I was brought up as one of his children. It is only as an adult that I came to learn that indeed I was a grandchild .” [Own emphasis]
19. If way back in the year 2023, the 2 nd Protestor clearly identified the
Deceased as her grandfather then why would she come to court in July 2025 and state under oath that the Deceased was her father.
20. The evidence which the 2 nd Protestor gave in court was totally
decimated under Cross-examination. The 2 nd Protestor in cross-examination claims that she did not know any grandmother yet in her statement of 16 th June 2023 , she states that she was raised by her grandmother.
21. The 1 st Protestor fared no better. She was not able to state with
certainty whether or not the 2 nd Protestor was the child of the Deceased. I was able to observe the demeanor of the 1 st Protestor as she testified and in my view she was not an honest witness.
22. The Respondent told the court that the 2 nd Protestor was not the
daughter of the Deceased but was in fact the last born child of one ‘ Lucy Wanjiru’ who was the Deceased’s daughter. Both the 1 st and 2 nd Protestor feigned ignorance about the existence of this ‘ Lucy Wanjiru ’ and neither was able to state with clarity her relationship to the 2 nd Protestor. In her testimony the 2 nd Protestor claimed that ‘ Lucy Wanjiru ’ was her sister. Under cross-examination she goes on to state that she did not know whether the Respondents were her siblings or her aunts and uncles. On her part the 1 st Protestor says
“I do not know if the [2 nd ] Protestor is the child of my
sister Lucy…….”
I do not know if Lucy is the Protestors mother.”
23. Once again I was able to closely observe the demeanour of the 2 nd
Protestor. The evidence was fumbled and contradictory. It is clear that she was not telling the truth.
24. It is pertinent to note that in the initial chiefs letter issued to court the
2 nd Protestor was not named as a child of the Deceased. Likewise the 2 nd Protestor was not named as a beneficiary (child) in the Petition for letters of Administration dated 24 th June 2008 . However both documents did name ‘Lucy Wanjiru’ as a daughter of the Deceased. Why did the 2 nd Protestor not raise any legal objection from the year 2008 until now?
25. It is clear that the 2 nd Protestor is in actual fact a granddaughter to the
Deceased being the child of ‘ Lucy Wanjiru’ a daughter of the Deceased. As is common in many families the 2 nd Protestor was raised by her grand-parents. This Protest is nothing but a desperate attempt by the 2 nd Protestor to misrepresent herself as a child of the Deceased in order to claim a share of the estate. It is telling that the Protestor did not call this ‘ Lucy Wanjiru’ as a witness
in support of her claims.
26. This issue of whether or not the 2 nd Protestor was the daughter of the
Deceased was settled in finality by Hon. Justice Jairus Ngaah in his judgment delivered on 12 th October 2016 . In that judgement the learned Judge revoked the Grant which had been issued to the 2 nd Protestor on grounds that the said grant had been obtained fraudulently through material misrepresentation.
27. Specifically the Honourable Judger rendered himself as follows
“One fact that stands out prominently in the affidavit in support of the summons for revocation of grant and on which this summons must turn is that the petitioner is a granddaughter to the deceased and not his daughter as alleged in the affidavit which she swore in support of the petition for grant of letters of administration… Without such rebuttal and in the absence of any evidence to the contrary, the court is entitled to assume that the applicant is right that the description which the respondent assumed in her petition for grant of letters of administration is misleading. That being the case, it can be assumed too, that the respondent deliberately chose to mislead the court so as to obtain the grant of the letters of administration of the deceased’s estate . In these circumstances, I would agree with the applicant that the grant is vitiated in at least two respects. I am left with no alternative but to revoke the grant that was made to the respondent….” [Own emphasis]
28. The 2 nd Protestor has not filed any appeal against this judgment. She
cannot now through this Protest attempt to relitigate matters which have already been decided upon by a court of competent jurisdiction. This court cannot sit in appeal over the decision of a concurrent jurisdiction. The question of whether the 2 nd Protestor is a daughter to the Deceased is now Res Judicata.
29. At this point I deem it necessary to warn the 2 nd Protestor that her
action of lying under oath amounts to perjury which is actionable
under Criminal Law. The 2 nd Protestor should stop propagating
the myth that she is a daughter of the Deceased.
30. Based on her own admission and the unimpeached finding by this
Court vide its judgment of 12 th October 2018 , I find and hold that the 2 nd Protestor is not a child of the Deceased but is in fact his grandchild. The question then is whether as a grandchild the 2 nd Protestor had a right to benefit from the estate of the Deceased.
31. The law is very clear that grandchildren are not considered
direct beneficiaries to the estate of their deceased grandparent, grandchildren can only inherit from the estate in situations where their own parents (the children) of the deceased person) are also Deceased.
32. In RE ESTATE OF FLORENCE MUKAMI KINYUA (Deceased)
2018 eKLR, the Court held that
“A grandchild is a direct heir to the estate of the grandparent where the parent predeceased the grandparent. The grandchildren get into shoes of their deceased parents and take the parents’ share in the estate of the grandparents. This was stated in Re Estate of Wahome Njoki Wakagoto (2013) eKLR where it was held: - Under Part V, grandchildren have no right to inherit their grandparents who die intestate after 1 st July 1981. The argument is that such grandchildren should inherit from their own parents. This means that the grandchildren can only inherit their grandparents’ indirectly through their own parents, the children of the deceased. The children inherit first and thereafter grandchildren inherit from the children. The only time grandchildren inherit directly from their grandparents is when the grandchildren’s own parents are dead. The grandchildren step into the shoes of their parents and take directly the share that ought to have gone to the said parents .” [Own emphasis]
33. The record shows that Lucy Wanjiku the mother of the 2 nd Protestor
and a daughter to the Deceased herein is still alive. Indeed all the witnesses confirmed that the said ‘Lucy Wanjiru’ was still living has five (5) children one of who resides in Dubai and that Lucy herself resides in Nanyuki . The said ‘ Lucy Wanjiru’ did not appear as a witness nor has she filed any document renouncing or waiving her right to a share of the estate. I find that it is the said Lucy Wanjiru who would be entitled to claim a share of the estate of the deceased and not the 2 nd Protestor.
34. The 2 nd Protestor has claimed that she was raised by the deceased
(her grandfather) and that the deceased paid her school fees. The 2 nd Protestor is now an adult. In order to qualify as a dependant under Section 29 of the law of Succession Act , the 2 nd Protestor must demonstrate that she was dependant on the Deceased immediately prior to his death. In the case of Beatrice Gamutua Rugamba v Fredrick Nkari Mutegi and 5 Others [2016] eKLR it was stated that:-
“……a dependent under Section 29 (b) and (c) must prove that he or she was being maintained by the deceased immediately prior to his demise. It is not the mere relationship that matters, but proof of dependency that counts.”
35. The 2 nd Protestor has not tendered any evidence to show that she was
dependant upon the deceased person immediately prior to his death. As such she cannot claim a share of the estate under Section 29 .
36. Finally I find no merit in the two protests. The same are dismissed.
Having said that I note that the summons for confirmation of Grant does not have a consent signed by the beneficiaries annexed to it. In the circumstances I direct that the Administrator file in Court a consent signed by the beneficiaries, before the summons can be heard and determined. This being a family matter I make no orders on costs.
Dated in Nyeri this 10 th day of July 2026.
HIGH COURT SUCCESSION CAUSE NO. 348 OF 2008 JUDGEMENT Page 13 of 13
IN THE MATTER OF THE ESTATE OF KARIUKI MAUCHU (DECEASED)
JUDGEMENT
1. The three Administrators of this estate filed in Court a Summons for Confirmation of Grant dated 24 th November 2022 . In response to that Summons two Affidavits of Protest were filed as follows;-
(i) Affidavit of Protest dated 18 th January 2023 sworn by JULIANA WACERA KARIUKI (hereinafter the 1 st Protestor)
(ii) Affidavit of Protest dated 18 th January 2023 sworn by JANE NYAGUTHII KARIUKI (hereinafter the 2 nd Protestor)
2. The protest was heard by way of oral evidence in open court.
BACKGROUND
3. This succession cause relates to the estate of the late KARIUKI MAUCHU who died intestate on 2 nd February 2008 . A copy of the Death Certificate Serial Number 331586 appears as Annexture
JNNK ‘1’ to the Petition for letters of Administration Intestate dated 24 th June 2008 .
4. The Deceased was survived by several children. The only asset left behind by the Deceased was a parcel of land known as LR No. AGUTHI/GATITU/2968 (hereinafter referred to as the ‘suit land’)
5. Following the demise of the Deceased the 2 nd Protestor Jane Nyaguthii sought and obtained Grant of letters of Administration which were issued to her on 2 nd June 2009 . The said Grant was thereafter confirmed on 26 th February 2010 and the only asset being the suit land was to devolve entirely to the 2 nd Protestor.
6. On 18 th September 2013 one of the beneficiaries of the estate SILVESTER NGUNJIRI KARIUKI filed a Summons for revocation of Grant. That Summons was heard in the High Court at Nyeri and vide a judgment delivered on 12 th October 2018 , Hon. Justice NGAAH revoked the Grant which had been issued to the 2 nd Protestor and directed that title in LR Aguthi/Gatitu/2968 revert back to the name of the Deceased.
7. Following revocation of the Grant which had been issued to the 2 nd Protestor, a fresh grant was then issued to the three (3) respondents. On 24 th November 2022 the three Administrator filed a Summons for confirmation of grant and in their supporting affidavit it was proposed that the suit land be allocated absolutely to the 1 st Respondent Sylvester Ngunjiri Kariuki . The two protestors then filed Affidavit of Protest.
THE EVIDENCE
8. The 2 nd Protestor Jane Nyaguthii Kariuki testified as PW1 . The 2 nd Protestor states that she is a daughter of the Deceased and therefore is entitled to a share of his estate. She states that she lived with and was cared for by the Deceased who also paid her school fees.
9. The 2 nd Protestor stated that the Deceased owned a large parcel of land which he partitioned into several plots. That parcel No. LR Aguthi/Gatitu/2968 was supposed to be allocated to her according to the wishes of the Deceased. The 2 nd Protestor opposed the allocation of the said parcel of land to the 1 st Administrator.
10. PW2 JULIANA WACEKE KARIUKI largely repeated the evidence of
PW1. ‘Juliana’ told the court that she was a daughter of the Deceased. PW2 stated that the Deceased owned a large parcel of land which he subdivided into several plots. That the family all agreed that Parcel No. 2968 was to be allocated to the 2 nd Protestor.
11. DW1 Sylvester Ngunjiri Kariuki was the 1 st Administrator. He told
the court that the Deceased who was his father left behind six (6)
children. DW1 vehemently denies that the 2 nd Protestor was a child of the Deceased. He asserts that Jane Nyaguthii was a daughter to Lucy Wanjiru who was the daughter of the Deceased. Therefore according to DW1 the 2 nd Protestor was ‘ grand-child ’ of the Deceased and was therefore not a direct beneficiary to the estate.
12. The Administrators urge this court to dismiss the two protests and
confirm the Grant as prayed in the summons dated 24 th November 2022 .
13. At the close of oral evidence the parties were invited to file their written
submissions. The Respondents filed the written submissions dated 4 th March 2026 whilst the Protestors relied on their written submissions dated 19 th March 2026.
ANALYSIS AND DETERMINATION
14. I have carefully considered the Protests filed in this matter, the
evidence on record as well as the written submissions filed by both parties.
15. The 2 nd Protestor states she is a daughter of the Deceased Kariuki
Mauchu and that she is therefore a direct beneficiary to the estate of the Deceased. The 1 st Protestor ‘ Juliana’ supports the assertion of the 2 nd Protestor that she is a daughter of the Deceased and is entitled
to a share of the estate.
16. The 2 nd Protestor has not adduced any tangible and/or documentary
evidence to confirm her assertion that she is a daughter of the Deceased - no birth certificate was produced as evidence.
17. Despite her protestations that the Deceased was her father in her own
affidavit of Protest at Paragraph 1 the 2 nd Protestor avers that she was brought up by the Deceased and her grand-mother in their homestead. This implies that the Deceased was in actual fact her grand-father not her father.
18. Likewise in her written statement dated 16 th June 2023 the 2 nd
Protestor states as follows
“ The deceased in this cause is my grandfather . As a young child, youth school days and adulthood I was brought up by the deceased and my grandmother. I was brought up as one of his children. It is only as an adult that I came to learn that indeed I was a grandchild .” [Own emphasis]
19. If way back in the year 2023, the 2 nd Protestor clearly identified the
Deceased as her grandfather then why would she come to court in July 2025 and state under oath that the Deceased was her father.
20. The evidence which the 2 nd Protestor gave in court was totally
decimated under Cross-examination. The 2 nd Protestor in cross-examination claims that she did not know any grandmother yet in her statement of 16 th June 2023 , she states that she was raised by her grandmother.
21. The 1 st Protestor fared no better. She was not able to state with
certainty whether or not the 2 nd Protestor was the child of the Deceased. I was able to observe the demeanor of the 1 st Protestor as she testified and in my view she was not an honest witness.
22. The Respondent told the court that the 2 nd Protestor was not the
daughter of the Deceased but was in fact the last born child of one ‘ Lucy Wanjiru’ who was the Deceased’s daughter. Both the 1 st and 2 nd Protestor feigned ignorance about the existence of this ‘ Lucy Wanjiru ’ and neither was able to state with clarity her relationship to the 2 nd Protestor. In her testimony the 2 nd Protestor claimed that ‘ Lucy Wanjiru ’ was her sister. Under cross-examination she goes on to state that she did not know whether the Respondents were her siblings or her aunts and uncles. On her part the 1 st Protestor says
“I do not know if the [2 nd ] Protestor is the child of my
sister Lucy…….”
I do not know if Lucy is the Protestors mother.”
23. Once again I was able to closely observe the demeanour of the 2 nd
Protestor. The evidence was fumbled and contradictory. It is clear that she was not telling the truth.
24. It is pertinent to note that in the initial chiefs letter issued to court the
2 nd Protestor was not named as a child of the Deceased. Likewise the 2 nd Protestor was not named as a beneficiary (child) in the Petition for letters of Administration dated 24 th June 2008 . However both documents did name ‘Lucy Wanjiru’ as a daughter of the Deceased. Why did the 2 nd Protestor not raise any legal objection from the year 2008 until now?
25. It is clear that the 2 nd Protestor is in actual fact a granddaughter to the
Deceased being the child of ‘ Lucy Wanjiru’ a daughter of the Deceased. As is common in many families the 2 nd Protestor was raised by her grand-parents. This Protest is nothing but a desperate attempt by the 2 nd Protestor to misrepresent herself as a child of the Deceased in order to claim a share of the estate. It is telling that the Protestor did not call this ‘ Lucy Wanjiru’ as a witness
in support of her claims.
26. This issue of whether or not the 2 nd Protestor was the daughter of the
Deceased was settled in finality by Hon. Justice Jairus Ngaah in his judgment delivered on 12 th October 2016 . In that judgement the learned Judge revoked the Grant which had been issued to the 2 nd Protestor on grounds that the said grant had been obtained fraudulently through material misrepresentation.
27. Specifically the Honourable Judger rendered himself as follows
“One fact that stands out prominently in the affidavit in support of the summons for revocation of grant and on which this summons must turn is that the petitioner is a granddaughter to the deceased and not his daughter as alleged in the affidavit which she swore in support of the petition for grant of letters of administration… Without such rebuttal and in the absence of any evidence to the contrary, the court is entitled to assume that the applicant is right that the description which the respondent assumed in her petition for grant of letters of administration is misleading. That being the case, it can be assumed too, that the respondent deliberately chose to mislead the court so as to obtain the grant of the letters of administration of the deceased’s estate . In these circumstances, I would agree with the applicant that the grant is vitiated in at least two respects. I am left with no alternative but to revoke the grant that was made to the respondent….” [Own emphasis]
28. The 2 nd Protestor has not filed any appeal against this judgment. She
cannot now through this Protest attempt to relitigate matters which have already been decided upon by a court of competent jurisdiction. This court cannot sit in appeal over the decision of a concurrent jurisdiction. The question of whether the 2 nd Protestor is a daughter to the Deceased is now Res Judicata.
29. At this point I deem it necessary to warn the 2 nd Protestor that her
action of lying under oath amounts to perjury which is actionable
under Criminal Law. The 2 nd Protestor should stop propagating
the myth that she is a daughter of the Deceased.
30. Based on her own admission and the unimpeached finding by this
Court vide its judgment of 12 th October 2018 , I find and hold that the 2 nd Protestor is not a child of the Deceased but is in fact his grandchild. The question then is whether as a grandchild the 2 nd Protestor had a right to benefit from the estate of the Deceased.
31. The law is very clear that grandchildren are not considered
direct beneficiaries to the estate of their deceased grandparent, grandchildren can only inherit from the estate in situations where their own parents (the children) of the deceased person) are also Deceased.
32. In RE ESTATE OF FLORENCE MUKAMI KINYUA (Deceased)
2018 eKLR, the Court held that
“A grandchild is a direct heir to the estate of the grandparent where the parent predeceased the grandparent. The grandchildren get into shoes of their deceased parents and take the parents’ share in the estate of the grandparents. This was stated in Re Estate of Wahome Njoki Wakagoto (2013) eKLR where it was held: - Under Part V, grandchildren have no right to inherit their grandparents who die intestate after 1 st July 1981. The argument is that such grandchildren should inherit from their own parents. This means that the grandchildren can only inherit their grandparents’ indirectly through their own parents, the children of the deceased. The children inherit first and thereafter grandchildren inherit from the children. The only time grandchildren inherit directly from their grandparents is when the grandchildren’s own parents are dead. The grandchildren step into the shoes of their parents and take directly the share that ought to have gone to the said parents .” [Own emphasis]
33. The record shows that Lucy Wanjiku the mother of the 2 nd Protestor
and a daughter to the Deceased herein is still alive. Indeed all the witnesses confirmed that the said ‘Lucy Wanjiru’ was still living has five (5) children one of who resides in Dubai and that Lucy herself resides in Nanyuki . The said ‘ Lucy Wanjiru’ did not appear as a witness nor has she filed any document renouncing or waiving her right to a share of the estate. I find that it is the said Lucy Wanjiru who would be entitled to claim a share of the estate of the deceased and not the 2 nd Protestor.
34. The 2 nd Protestor has claimed that she was raised by the deceased
(her grandfather) and that the deceased paid her school fees. The 2 nd Protestor is now an adult. In order to qualify as a dependant under Section 29 of the law of Succession Act , the 2 nd Protestor must demonstrate that she was dependant on the Deceased immediately prior to his death. In the case of Beatrice Gamutua Rugamba v Fredrick Nkari Mutegi and 5 Others [2016] eKLR it was stated that:-
“……a dependent under Section 29 (b) and (c) must prove that he or she was being maintained by the deceased immediately prior to his demise. It is not the mere relationship that matters, but proof of dependency that counts.”
35. The 2 nd Protestor has not tendered any evidence to show that she was
dependant upon the deceased person immediately prior to his death. As such she cannot claim a share of the estate under Section 29 .
36. Finally I find no merit in the two protests. The same are dismissed.
Having said that I note that the summons for confirmation of Grant does not have a consent signed by the beneficiaries annexed to it. In the circumstances I direct that the Administrator file in Court a consent signed by the beneficiaries, before the summons can be heard and determined. This being a family matter I make no orders on costs.
Dated in Nyeri this 10 th day of July 2026.
HIGH COURT SUCCESSION CAUSE NO. 348 OF 2008 JUDGEMENT Page 13 of 13