A. INTRODUCTION
1. This cause concerns the estate of the late Kerubo Mogere (deceased) who died in the year 2007.
2. The dispute arises from summons for confirmation of grant filed by the Petitioner, which have been opposed by the Objectors through affidavits of protest dated 1st August 2022.
3. The matter proceeded to full hearing, with both oral and documentary evidence tendered by the parties, including the testimony of the County Land Registrar, Nyamira.
4. The central dispute revolves around:
a. The validity and effect of the deceased’s written will dated 7th September 2006;
b. Whether the Objectors were unlawfully excluded;
c. The status of Land Parcel West Mugirango/Siamani/332; and
d. Whether the estate should be distributed in accordance with the will or otherwise.
5. B. BACKGROUND
6. Evidence on record shows that earlier proceedings had been filed in Succession Cause No. 651 of 2013, where Francis Mogaka Mogere had obtained a confirmed grant.
7. That grant was revoked by the High Court (Majanja J.) on 20th February 2019, on grounds that material beneficiaries had been excluded.
8. The present cause was thereafter pursued by the Petitioner, who claims to be:
a. A grandson of the deceased; and
b. An executor named in the will dated 7th September 2006.
9. C. THE OBJECTORS’ CASE
10. The protestors (George Oyagi Mogaka and Daniel Mosomi Mogere) contend that:
a) They did not sign the summons for confirmation of grant and allege forgery;
b) The Petitioner is a stranger to the estate;
c) The estate property—particularly Land Parcel No. West Mugirango/Siamani/332—was unlawfully interfered with;
d) The proposed distribution is contrary to Section 29 of the Law of Succession Act;
e) The will is invalid, unfair or unknown to them.
11. They further alleged that:
a. The Petitioner transferred land to himself fraudulently;
b. Portions of the estate were sold and charged;
c. Additional beneficiaries were irregularly introduced.
THE PETITIONER’S CASE
12. The Petitioner relies on:
a) A written will dated 7th September 2006;
b) His appointment as executor and trustee therein;
c) Prior court findings affirming the validity of the will.
13. He testified that as per the will the deceased distributed some properties inter vivos, including:
a. Land parcel no. West Mugirango /Siamani / 1811 to Francis Mogaka Mogere ;
b. Land parcel no. West Mugirango/ Siamani 1812 to Daniel Mosomi Mogere
c. Land parcel West Mugirango/ Siamani /332 (3.0 ha) was reserved for:
a) The children of Monica Nyanchoka i.e Jared Mogere . Ezekiel Mogere and Vincent Omanga Mogere who were to inherit 2.5 hectares out of the said land 332
b) Agnes Osiri was to inherit 0.5 hectare of that land no 332
14. He maintained that the Will was upheld by Hon Justice Majanja and thus the estate should be distributed strictly in accordance with the will.
15. The issue of validity of the Will and capacity of the deceased to make were conclusively dealt with by Justice Majanja vide his ruling dated 20.2.2019 delivered in Succession cause no 651 of 2013 (Also Estate of the deceased herein )in which he upheld the Will and revoked the grant . I will thus not delve into that issue as it is Res judicata .
ISSUES FOR DETERMINATION
16. I have carefully considered the objection the response , the summons for revocation of grant and the able summissions by counsel . The issues arising for determination are:
a. Whether parcel number West Mugirango/Siamani/332 is available for distribution
b. How the estate should be distributed.
ANALYSIS
17. On Whether parcel number West Mugirango/Siamani/332 is available for distribution
The petitioner’s case is that the said parcel is available for distribution. This is supported by the evidence of the land registrar Pw3 who said that the land no 332 is available for distribution. The protesters say that the petitioner intermeddled with the said land by having it registered in his name illegally and also selling a portion of it . PW3 said that his office noticed a purported registration of the land to the petitioner’s name and flagged it as ‘’suspected fraud ‘’ and their office exercised its powers under Section 79 (2) of the of the Land Registration Act and reverted the same to the name of the deceased . A purported transfer to the Petitioner in 2016 was flagged as “suspected fraud”. This evidence was not dislodged on cross examination. have seen the free card of the land produced by the land registrar and the same is clear that the transfer and the subsequent subdivisions were cancelled on 31.5.2016and the land reverted back to the name of the deceased . I therefore find that land parcel no. West Mugirango/Siamani/332 is in the name of deceased and is thus available for distribution.
18. On how the estate should be distributed , the deceased died testate as per the ruling of Hon . Justice Majanja dated 20.2.219 which upheld the Will .The protestors said they had an interest in land parcel no. 332 . The evidence on record and the Will shows that Daniel and Francis were already gifted land parcels no 1811 and 1812 by deceased inter vivos . The protestors were thus provided for by the deceased . In any event failure to provide for a dependant is not a ground for invalidation of a will as was held in the case of Maina Anyanga vs. Lorna Yimbiha Ottaro & 4 others [2014] eKLR where court held that
‘’Failure to make provision for a dependant by a deceased person in his will does not invalidate the will as the court is empowered under Section 26 of the Law of Succession Act to make reasonable provision for the dependant.’’. In this case the protestors were provided for by deceased .
19. This is a straight forward matter. It is trite law that where a deceased died testate and distribution distribution is governed by the wishes of deceased and it is the duty of the court to give effect to the testator’s wishes as a person has right to dispose off his free property as he wills . The last wishes of a deceased person by be respected by all and saundry .
FINDINGS
20. I proceed to make the following findings:
a) The deceased left a valid written will dated 7th September 2006.
b) No ground for revocation of grant has been established
c) Parcel No. West Mugirango/Siamani/332 is the estate of the estate of deceased and is available for distribution.
d) The protests lacks merit .
e) The estate shall be distributed in accordance with the will of the deceased.
ORDERS
21. Accordingly, I make the following orders:
a) The protest dated 1st August 2022 and 22.7.22 are hereby dismissed.
b) The summons for confirmation of grant is allowed as prayed .
c) The estate shall be distributed strictly in accordance with the will dated 7th September 2006.
d) Land Parcel No. West Mugirango/Siamani/332 is available for distribution . The Summons for confirmation of grant dated 12.8.2020 is allowed and the grant is confirmed in terms of paragragh 6 (i) of the supporting affidavit of Jared Morege . For purposes of clarity land parcel No. West Mugirango/Siamani/332 shall be distributed as per the last wishes of deceased as follows ;
i.The children of Monica Nyanchoka i.e Jared Mogere . Ezekiel Mogere and Vincent Omanga Mogere to inherit 2.5 ha .
ii. Agnes Osiri to inherit 0.5 ha.
e) Administration of the estate be concluded within 120 days from today .
f) Mention on 29.9.26 to confirm completion of administration.
g) Each party shall bear their own costs, this being a family matter .
T. A. ODERA
JUDGE
9.4.26
DELIVERED, VIRTUALLY VIA TEAMS PLATFORM ON THIS 9TH TH DAY OF APRIL 2026, IN THE PRESENCE OF MISS CHEPKIENG FOR PETITIONER . N/A FOR PROTESTORS . CA ONKUNDI
1. This cause concerns the estate of the late Kerubo Mogere (deceased) who died in the year 2007.
2. The dispute arises from summons for confirmation of grant filed by the Petitioner, which have been opposed by the Objectors through affidavits of protest dated 1st August 2022.
3. The matter proceeded to full hearing, with both oral and documentary evidence tendered by the parties, including the testimony of the County Land Registrar, Nyamira.
4. The central dispute revolves around:
a. The validity and effect of the deceased’s written will dated 7th September 2006;
b. Whether the Objectors were unlawfully excluded;
c. The status of Land Parcel West Mugirango/Siamani/332; and
d. Whether the estate should be distributed in accordance with the will or otherwise.
5. B. BACKGROUND
6. Evidence on record shows that earlier proceedings had been filed in Succession Cause No. 651 of 2013, where Francis Mogaka Mogere had obtained a confirmed grant.
7. That grant was revoked by the High Court (Majanja J.) on 20th February 2019, on grounds that material beneficiaries had been excluded.
8. The present cause was thereafter pursued by the Petitioner, who claims to be:
a. A grandson of the deceased; and
b. An executor named in the will dated 7th September 2006.
9. C. THE OBJECTORS’ CASE
10. The protestors (George Oyagi Mogaka and Daniel Mosomi Mogere) contend that:
a) They did not sign the summons for confirmation of grant and allege forgery;
b) The Petitioner is a stranger to the estate;
c) The estate property—particularly Land Parcel No. West Mugirango/Siamani/332—was unlawfully interfered with;
d) The proposed distribution is contrary to Section 29 of the Law of Succession Act;
e) The will is invalid, unfair or unknown to them.
11. They further alleged that:
a. The Petitioner transferred land to himself fraudulently;
b. Portions of the estate were sold and charged;
c. Additional beneficiaries were irregularly introduced.
THE PETITIONER’S CASE
12. The Petitioner relies on:
a) A written will dated 7th September 2006;
b) His appointment as executor and trustee therein;
c) Prior court findings affirming the validity of the will.
13. He testified that as per the will the deceased distributed some properties inter vivos, including:
a. Land parcel no. West Mugirango /Siamani / 1811 to Francis Mogaka Mogere ;
b. Land parcel no. West Mugirango/ Siamani 1812 to Daniel Mosomi Mogere
c. Land parcel West Mugirango/ Siamani /332 (3.0 ha) was reserved for:
a) The children of Monica Nyanchoka i.e Jared Mogere . Ezekiel Mogere and Vincent Omanga Mogere who were to inherit 2.5 hectares out of the said land 332
b) Agnes Osiri was to inherit 0.5 hectare of that land no 332
14. He maintained that the Will was upheld by Hon Justice Majanja and thus the estate should be distributed strictly in accordance with the will.
15. The issue of validity of the Will and capacity of the deceased to make were conclusively dealt with by Justice Majanja vide his ruling dated 20.2.2019 delivered in Succession cause no 651 of 2013 (Also Estate of the deceased herein )in which he upheld the Will and revoked the grant . I will thus not delve into that issue as it is Res judicata .
ISSUES FOR DETERMINATION
16. I have carefully considered the objection the response , the summons for revocation of grant and the able summissions by counsel . The issues arising for determination are:
a. Whether parcel number West Mugirango/Siamani/332 is available for distribution
b. How the estate should be distributed.
ANALYSIS
17. On Whether parcel number West Mugirango/Siamani/332 is available for distribution
The petitioner’s case is that the said parcel is available for distribution. This is supported by the evidence of the land registrar Pw3 who said that the land no 332 is available for distribution. The protesters say that the petitioner intermeddled with the said land by having it registered in his name illegally and also selling a portion of it . PW3 said that his office noticed a purported registration of the land to the petitioner’s name and flagged it as ‘’suspected fraud ‘’ and their office exercised its powers under Section 79 (2) of the of the Land Registration Act and reverted the same to the name of the deceased . A purported transfer to the Petitioner in 2016 was flagged as “suspected fraud”. This evidence was not dislodged on cross examination. have seen the free card of the land produced by the land registrar and the same is clear that the transfer and the subsequent subdivisions were cancelled on 31.5.2016and the land reverted back to the name of the deceased . I therefore find that land parcel no. West Mugirango/Siamani/332 is in the name of deceased and is thus available for distribution.
18. On how the estate should be distributed , the deceased died testate as per the ruling of Hon . Justice Majanja dated 20.2.219 which upheld the Will .The protestors said they had an interest in land parcel no. 332 . The evidence on record and the Will shows that Daniel and Francis were already gifted land parcels no 1811 and 1812 by deceased inter vivos . The protestors were thus provided for by the deceased . In any event failure to provide for a dependant is not a ground for invalidation of a will as was held in the case of Maina Anyanga vs. Lorna Yimbiha Ottaro & 4 others [2014] eKLR where court held that
‘’Failure to make provision for a dependant by a deceased person in his will does not invalidate the will as the court is empowered under Section 26 of the Law of Succession Act to make reasonable provision for the dependant.’’. In this case the protestors were provided for by deceased .
19. This is a straight forward matter. It is trite law that where a deceased died testate and distribution distribution is governed by the wishes of deceased and it is the duty of the court to give effect to the testator’s wishes as a person has right to dispose off his free property as he wills . The last wishes of a deceased person by be respected by all and saundry .
FINDINGS
20. I proceed to make the following findings:
a) The deceased left a valid written will dated 7th September 2006.
b) No ground for revocation of grant has been established
c) Parcel No. West Mugirango/Siamani/332 is the estate of the estate of deceased and is available for distribution.
d) The protests lacks merit .
e) The estate shall be distributed in accordance with the will of the deceased.
ORDERS
21. Accordingly, I make the following orders:
a) The protest dated 1st August 2022 and 22.7.22 are hereby dismissed.
b) The summons for confirmation of grant is allowed as prayed .
c) The estate shall be distributed strictly in accordance with the will dated 7th September 2006.
d) Land Parcel No. West Mugirango/Siamani/332 is available for distribution . The Summons for confirmation of grant dated 12.8.2020 is allowed and the grant is confirmed in terms of paragragh 6 (i) of the supporting affidavit of Jared Morege . For purposes of clarity land parcel No. West Mugirango/Siamani/332 shall be distributed as per the last wishes of deceased as follows ;
i.The children of Monica Nyanchoka i.e Jared Mogere . Ezekiel Mogere and Vincent Omanga Mogere to inherit 2.5 ha .
ii. Agnes Osiri to inherit 0.5 ha.
e) Administration of the estate be concluded within 120 days from today .
f) Mention on 29.9.26 to confirm completion of administration.
g) Each party shall bear their own costs, this being a family matter .
T. A. ODERA
JUDGE
9.4.26
DELIVERED, VIRTUALLY VIA TEAMS PLATFORM ON THIS 9TH TH DAY OF APRIL 2026, IN THE PRESENCE OF MISS CHEPKIENG FOR PETITIONER . N/A FOR PROTESTORS . CA ONKUNDI