1. On 21 st July 2022, the court (Odunga J., as he was then) revoked the Grant made to the Petitioner(“Daniel”) and ordered that a fresh one be issued jointly in the names of the parties herein. The issue now before the court is how the Grant is to be confirmed as the Objector(“Gladys”) is objecting to the manner of distribution proposed by Daniel which is that the remaining estate be distributed equally between the two surviving households. Daniel is a son to the Deceased, Muia Muomo, whereas Gladys is the deceased’s daughter-in-law, having been married to the Deceased’s son, Samuel (Sammy) Muia Ngemu, who is also deceased and was a brother to Daniel.
2. The objection was heard by way of viva voce evidence where Gladys testified on her own behalf (OW 1) and she called Kavata Kitala, who stated that she was the wife of Kitala Muomo, a brother to Deceased (OW 2), Harisson Musyoka Kitala who stated that he was a nephew to the Deceased (OW 3) and Jonathan Mwangangi Muthami, a clansman of the Deceased (OW 4). Daniel testified on his own behalf. Whereas the court directed the parties to file written submissions, only those of Daniel are on record. I have considered the same together with the pleadings and evidence.
3. As submitted by Peter, the Court of Appeal, in M’Murithi v Murithi [2015] KECA 347 (KLR), emphasized that 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.
4. The position on daughters-in-law as beneficiaries of a deceased’s estate has been enunciated by this court in various decisions. Odunga J., (as he was then) In re Estate of Catherine Nduku Malinda (Deceased) [2020] KEHC 8389 (KLR) held as follows:
176. In my view a daughter in law may lay a claim as a beneficiary not in her own right but as a legal representative of a deceased son. In other words, the legal representatives of a deceased’s dependants may properly stake a claim to the estate of a deceased person on behalf of legally recognized dependants. However, that is not the Protestor’s claim in these proceedings. My view is reinforced by the decision in the case of Re Estate of Munyua Mbeke (Deceased) [2015] where it was held that:
“The clear wording of Section 29 of the Act does not include daughters-in-law of the deceased. Daughters-in-law are not children of the deceased, and therefore they do not fall within the category of the children of the deceased. They therefore cannot mount an application under Section 26 of the Act as the applicant has done in this case.”
5. In re Estate of Cecilia Wanjiru Kibiche (Deceased) [2016] KEHC 2881 (KLR) , Musyoka J., held as follows:
20….. I should also add that a daughter-in-law is not listed in section 29(b) of the Act as being among persons who may move the court under section 26 for reasonable provision and who the court may declare to be a dependant.
……
26. The applicant in the confirmation application is a daughter-in-law of the deceased, by dint of her having had married the deceased’s son, Peter Gakuha Kibiche. She is not a blood relative of the deceased. She, therefore, does not qualify to be among the survivors of the deceased as defined in Part V. She is, consequently, not entitled to a share in the deceased’s estate. However, her children with the deceased’s son would be blood relatives of the deceased in their capacity as grandchildren of the dead.
…..
28. However, in view of what I have stated with respect to the applicant, the fact that the protestor had been married to the deceased’s son may not be a relevant fact in determining whether she was a survivor of the deceased in terms of Part V of the Act. She was not a blood relative of the deceased, and the fact of having been a spouse of the deceased’s son does not make her a survivor of the deceased. She is therefore not entitled to a share in her estate. However, her biological children with the deceased qualify automatically to be survivors of the deceased, by virtue of being the biological grandchildren of the deceased.
6. In an even more elaborate elucidation of the law on the matter, Musyoka J., again, In re Estate of Imoli Luhatse Paul (Deceased) [2021] KEHC 1389 (KLR) pronounced himself as follows:
4. I believe that there is a misconception. Grandchildren are not in the same footing with the daughters-in-law or children-in-law of the deceased. Grandchildren would be blood relatives of the deceased. They would be entitled automatically, as blood kin of their grandparent, to take the share due to their own parents, the biological children of the deceased, where such biological children are dead. A surviving spouse of a dead child of the deceased is not a biological kin of the deceased parent-in-law. Such a child-in-law would have no automatic right or entitlement to a share in the estate of her parent-in-law. Whereas statute is clear that grandchildren have a right under sections 39 and 41 of the Law of Succession Act, there is not a single provision in the Law of Succession Act, or any other statute for that matter, which makes provision for any in-law. Consequently, since in-laws have no rights of inheritance from the estates of their in-laws, they can only approach the court upon obtaining representation to the estates of the persons on whose account they claim. Their claim to a stake in the estate of the parent-in-law would not be in their own right, but rather on behalf of the estate of another, their dead spouse. They can only stake a direct claim to the estate of their late spouse, whose assets include what the dead spouse inherits from the estate of their parents. I must emphasize that grandchildren are not in that boat with such in-laws, and they claim from their grandparent’s estate, not on behalf of their dead parents, but directly as grandchildren, children of such dead children, the share that ought to have gone to their parents.
7. Musyoka J., again, In re Estate of Francis Andachila Luta (Deceased) [2022] KEHC 16900 (KLR) went even further by stating as follows:
2 9.One of the sons of the deceased is dead, and that is to say the husband of the protestor. I have mentioned section 41 above, in connection with how the share of a dead child of a deceased parent is to be handled. When a child of the deceased dies, and is survived by offspring, their entitlement is not extinguished or diminished. It should go to their offspring or to his/her estate. Section 41 says that the offspring step into the shoes of their dead parent, and take the share that is due to such dead parent. That share should be equal to the shares taken by the surviving children of the deceased. More importantly, section 41 talks of the offspring of the dead child of the deceased and not the spouse of the dead child. In intestate succession, the estate passes to the kindred of the deceased, that is to say the blood relatives of the deceased, except for the surviving spouse of the deceased. In-laws, be they parents-in-laws or children-in-laws, are not blood relatives of their children-in-law or father-in-law. They have no right or entitlement to the intestate estate of their dead in –law. The Law of Succession Act does not recognize them or their rights. Indeed, the does not even mention them. They can only claim on behalf of others. A daughter-in-law, for example, can only claim the share due to her late husband, otherwise she has no direct right. For her to access the share due to her late husband, she has to obtain representation to his estate first, by way of a grant of letters of administration intestate. Pursuing the interest due to her late husband without first obtaining the grant in his estate would amount to intermeddling, and her activities would run afoul of section 45 of the Law of Succession Act . Section 45 of the Law of Succession Act provides as follows:-
“45.No intermeddling with property of deceased person…………………………………………………….
30.The protestor is not a child of the deceased. She is a daughter–in-law. In terms of rights or entitlement to a share in the estate, she had none at all. She is not in the same league with the applicant nor the son, Andrew Muchenditsi. Nor any of the other daughters of the deceased. She has zero right or entitlement. It is her children, with her late husband, who have right or entitlement to a share of the estate, by dint of section 41, by way of stepping into the shares of their late father. The protestor can only agitate a claim on behalf of her late husband, and she can only agitate the same upon obtaining a grant of representation to his estate, for it only that grant that would clothe her with authority to speak on behalf of her husband, speaking for her husband without obtaining a grant to his estate amounts to intermeddling into his estate, which is a criminal offence under section 45(2) of the Law of Succession Act. The mere fact that she is his surviving spouse clothes her with no authority whatsoever to claim that which accrues to her late husband. The protestor has not provided any proof that she holds such a grant with respect to the estate of her husband.”
8. In re Estate of Stephen Kiplagat Mutai (Deceased) [2025] KEHC 348 (KLR) , Wananda J., while agreeing with aforementioned positions also held as follows:
35. I fully agree and associate myself with the above sentiments of the said respective Judges. Like them, I, too, find that the Objector, claiming as a daughter-in-law, is so far removed from, and is too remote to the estate of the deceased herein. The law does not recognize a daughter-in-law to be a direct beneficiary in the estate of her father-in-law. She can only sustain a claim, as a legal representative, on behalf of her children since it is only they, the children, who are permitted in law, to “step into” the position of their late father and claim his share of the inheritance.
36. Although the Objector, in urging that daughters-in-law were long established by the Courts as being dependants and cited the decision of A. Mshila J, in the case of Re Estate of Karuri Magu(deceased (2016) eKLR, having read through that authority, I find nowhere in it where the Judge expressly stated that a daughter-in-law can be recognized as a survivor of the deceased, or as a beneficiary to the estate of the deceased, by virtue of being married to a son of the deceased. The daughter-in-law in that case was only included in the distribution of the estate as representing the estate of her late husband, and not in her own direct right. No issue of the nature in issue herein was placed before the Judge for determination and the interpretation alleged by the Objector appears to have been made out of extent.
9. From the above, it is that a clear that a daughter-in-law, like Gladys, is not a direct beneficiary of her father-in-law's estate and that she has no legal right to a share in her own name. However, I note that in her testimony, Gladys stated that she is not claiming the subject property WAMUNYU/KAMBIITI/117 for herself alone. She is the surviving spouse of the Deceased’s son, Samuel and the mother of his five children who are the grandchildren of the deceased). As stated above, the law, specifically section 41 of the Law of Succession Act is clear that the children of a deceased child, that is, the grandchildren "step into the shoes" of their dead parent and are entitled to the share that would have gone to him. Therefore, Gladys's legal standing is not to claim the land as her personal property, but to represent the interests of her children, her children who are the rightful beneficiaries of Samuel's share of the estate.
10. Turning to the Objection and the manner of distribution of the estate, I find that Gladys’ testimony and those of her three witnesses are consistent and credible. They all testified that the Deceased had already subdivided and allocated his land to his two sons during his lifetime where Daniel received Wamunyu/Kyangulumi/319 and the unsurveyed Yatta land and Samuel received Wamunyu/Kambiti/117.The distribution of a deceased’s estate is subject to the provisions of section 42 of the Law of Succession Act which reads as follows:“
42. Previous benefits to be brought into account
Where—
(a)an intestate has, during his lifetime or by will, paid, given or settled any property to or for the benefit of a child, grandchild or house; or
(b)property has been appointed or awarded to any child or grandchild under the provisions of section 26 of section 35,
that property shall be taken into account in determining the share of the net intestate estate finally accruing to the child, grandchild or house.
11. The aforementioned section recognizes that during one’s lifetime, a person may give any part of his or her property to any of his child, grandchild or family member or settle them on any part of his or her land. Such a gift or settlement must be taken into account in distributing a deceased’s estate under section 38 (see In re Estate of Cypriano Imanyara Imiru (Deceased) [2022] KECA 1176 (KLR)]. Since the Deceased had already given Daniel his share while he was alive, then those properties are no longer part of the net intestate estate to be distributed under section 38 of the Law of Succession Act which only applies to the property that the deceased owned at the time of his death. The court cannot redistribute property that the deceased had already given away.
12. Gladys’ evidence that Daniel sold both of his allocated parcels and moved to Ekalakala is also uncontroverted. Gladys stated that he came back and was even allocated a portion of Property 117 as a gesture of goodwill and family support and after intervention by the clan. It is therefore clear that Daniel had already received and enjoyed the full benefit of his inheritance from his father and more and he cannot now return and claim a share of his brother's land, which was a separate and distinct allocation by the Deceased. Gladys also denied selling a portion of the Property 117 asserting that she never received any consideration for it and that all she concedes is the 120ft x 100ft plot given to Daniel from that property.
13. In the end, I reject Daniel's proposal for an equal 50:50 split of the Wamunyu/Kambiti/117 property as the same was not part of the Deceased's undistributed estate, but had already been given to Samuel. His only entitlement to that land, based on the clan agreement and Gladys’ concession, is the 120ft x 100ft plot he was given in 2006. I find that the property Wamunyu/Kambiti/117 rightfully belongs to Samuel's children, who are the direct beneficiaries of their father's inheritance and Gladys, as their mother and legal representative, is the appropriate person to hold it in trust for them. Further, property Wamunyu/Kyangulumi/319 is not part of the estate to be distributed as the same was allocated to Daniel and he has already sold it.
14. In the foregoing, the Grant on record is hereby confirmed on terms that property Wamunyu/Kambiti/117, save for the 120ft x 100ft plot given to the Petitioner in 2006, is to be allocated to the Objector Gladys Mwikali Sammy to be held in trust for her children and a certificate of confirmation of grant shall issue accordingly.
DATED SIGNED AND DELIVERED virtually this 3 rd DAY OF SEPTEMBER
2026
............................................................................
J W W MONGARE
JUDGE
IN THE PRESENCE OF
1. Ms. Khandiesi holding for the Petitioner
2. N/A for the Objector
3. Abdisalan- Court Assistant
2 | Page
2. The objection was heard by way of viva voce evidence where Gladys testified on her own behalf (OW 1) and she called Kavata Kitala, who stated that she was the wife of Kitala Muomo, a brother to Deceased (OW 2), Harisson Musyoka Kitala who stated that he was a nephew to the Deceased (OW 3) and Jonathan Mwangangi Muthami, a clansman of the Deceased (OW 4). Daniel testified on his own behalf. Whereas the court directed the parties to file written submissions, only those of Daniel are on record. I have considered the same together with the pleadings and evidence.
3. As submitted by Peter, the Court of Appeal, in M’Murithi v Murithi [2015] KECA 347 (KLR), emphasized that 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.
4. The position on daughters-in-law as beneficiaries of a deceased’s estate has been enunciated by this court in various decisions. Odunga J., (as he was then) In re Estate of Catherine Nduku Malinda (Deceased) [2020] KEHC 8389 (KLR) held as follows:
176. In my view a daughter in law may lay a claim as a beneficiary not in her own right but as a legal representative of a deceased son. In other words, the legal representatives of a deceased’s dependants may properly stake a claim to the estate of a deceased person on behalf of legally recognized dependants. However, that is not the Protestor’s claim in these proceedings. My view is reinforced by the decision in the case of Re Estate of Munyua Mbeke (Deceased) [2015] where it was held that:
“The clear wording of Section 29 of the Act does not include daughters-in-law of the deceased. Daughters-in-law are not children of the deceased, and therefore they do not fall within the category of the children of the deceased. They therefore cannot mount an application under Section 26 of the Act as the applicant has done in this case.”
5. In re Estate of Cecilia Wanjiru Kibiche (Deceased) [2016] KEHC 2881 (KLR) , Musyoka J., held as follows:
20….. I should also add that a daughter-in-law is not listed in section 29(b) of the Act as being among persons who may move the court under section 26 for reasonable provision and who the court may declare to be a dependant.
……
26. The applicant in the confirmation application is a daughter-in-law of the deceased, by dint of her having had married the deceased’s son, Peter Gakuha Kibiche. She is not a blood relative of the deceased. She, therefore, does not qualify to be among the survivors of the deceased as defined in Part V. She is, consequently, not entitled to a share in the deceased’s estate. However, her children with the deceased’s son would be blood relatives of the deceased in their capacity as grandchildren of the dead.
…..
28. However, in view of what I have stated with respect to the applicant, the fact that the protestor had been married to the deceased’s son may not be a relevant fact in determining whether she was a survivor of the deceased in terms of Part V of the Act. She was not a blood relative of the deceased, and the fact of having been a spouse of the deceased’s son does not make her a survivor of the deceased. She is therefore not entitled to a share in her estate. However, her biological children with the deceased qualify automatically to be survivors of the deceased, by virtue of being the biological grandchildren of the deceased.
6. In an even more elaborate elucidation of the law on the matter, Musyoka J., again, In re Estate of Imoli Luhatse Paul (Deceased) [2021] KEHC 1389 (KLR) pronounced himself as follows:
4. I believe that there is a misconception. Grandchildren are not in the same footing with the daughters-in-law or children-in-law of the deceased. Grandchildren would be blood relatives of the deceased. They would be entitled automatically, as blood kin of their grandparent, to take the share due to their own parents, the biological children of the deceased, where such biological children are dead. A surviving spouse of a dead child of the deceased is not a biological kin of the deceased parent-in-law. Such a child-in-law would have no automatic right or entitlement to a share in the estate of her parent-in-law. Whereas statute is clear that grandchildren have a right under sections 39 and 41 of the Law of Succession Act, there is not a single provision in the Law of Succession Act, or any other statute for that matter, which makes provision for any in-law. Consequently, since in-laws have no rights of inheritance from the estates of their in-laws, they can only approach the court upon obtaining representation to the estates of the persons on whose account they claim. Their claim to a stake in the estate of the parent-in-law would not be in their own right, but rather on behalf of the estate of another, their dead spouse. They can only stake a direct claim to the estate of their late spouse, whose assets include what the dead spouse inherits from the estate of their parents. I must emphasize that grandchildren are not in that boat with such in-laws, and they claim from their grandparent’s estate, not on behalf of their dead parents, but directly as grandchildren, children of such dead children, the share that ought to have gone to their parents.
7. Musyoka J., again, In re Estate of Francis Andachila Luta (Deceased) [2022] KEHC 16900 (KLR) went even further by stating as follows:
2 9.One of the sons of the deceased is dead, and that is to say the husband of the protestor. I have mentioned section 41 above, in connection with how the share of a dead child of a deceased parent is to be handled. When a child of the deceased dies, and is survived by offspring, their entitlement is not extinguished or diminished. It should go to their offspring or to his/her estate. Section 41 says that the offspring step into the shoes of their dead parent, and take the share that is due to such dead parent. That share should be equal to the shares taken by the surviving children of the deceased. More importantly, section 41 talks of the offspring of the dead child of the deceased and not the spouse of the dead child. In intestate succession, the estate passes to the kindred of the deceased, that is to say the blood relatives of the deceased, except for the surviving spouse of the deceased. In-laws, be they parents-in-laws or children-in-laws, are not blood relatives of their children-in-law or father-in-law. They have no right or entitlement to the intestate estate of their dead in –law. The Law of Succession Act does not recognize them or their rights. Indeed, the does not even mention them. They can only claim on behalf of others. A daughter-in-law, for example, can only claim the share due to her late husband, otherwise she has no direct right. For her to access the share due to her late husband, she has to obtain representation to his estate first, by way of a grant of letters of administration intestate. Pursuing the interest due to her late husband without first obtaining the grant in his estate would amount to intermeddling, and her activities would run afoul of section 45 of the Law of Succession Act . Section 45 of the Law of Succession Act provides as follows:-
“45.No intermeddling with property of deceased person…………………………………………………….
30.The protestor is not a child of the deceased. She is a daughter–in-law. In terms of rights or entitlement to a share in the estate, she had none at all. She is not in the same league with the applicant nor the son, Andrew Muchenditsi. Nor any of the other daughters of the deceased. She has zero right or entitlement. It is her children, with her late husband, who have right or entitlement to a share of the estate, by dint of section 41, by way of stepping into the shares of their late father. The protestor can only agitate a claim on behalf of her late husband, and she can only agitate the same upon obtaining a grant of representation to his estate, for it only that grant that would clothe her with authority to speak on behalf of her husband, speaking for her husband without obtaining a grant to his estate amounts to intermeddling into his estate, which is a criminal offence under section 45(2) of the Law of Succession Act. The mere fact that she is his surviving spouse clothes her with no authority whatsoever to claim that which accrues to her late husband. The protestor has not provided any proof that she holds such a grant with respect to the estate of her husband.”
8. In re Estate of Stephen Kiplagat Mutai (Deceased) [2025] KEHC 348 (KLR) , Wananda J., while agreeing with aforementioned positions also held as follows:
35. I fully agree and associate myself with the above sentiments of the said respective Judges. Like them, I, too, find that the Objector, claiming as a daughter-in-law, is so far removed from, and is too remote to the estate of the deceased herein. The law does not recognize a daughter-in-law to be a direct beneficiary in the estate of her father-in-law. She can only sustain a claim, as a legal representative, on behalf of her children since it is only they, the children, who are permitted in law, to “step into” the position of their late father and claim his share of the inheritance.
36. Although the Objector, in urging that daughters-in-law were long established by the Courts as being dependants and cited the decision of A. Mshila J, in the case of Re Estate of Karuri Magu(deceased (2016) eKLR, having read through that authority, I find nowhere in it where the Judge expressly stated that a daughter-in-law can be recognized as a survivor of the deceased, or as a beneficiary to the estate of the deceased, by virtue of being married to a son of the deceased. The daughter-in-law in that case was only included in the distribution of the estate as representing the estate of her late husband, and not in her own direct right. No issue of the nature in issue herein was placed before the Judge for determination and the interpretation alleged by the Objector appears to have been made out of extent.
9. From the above, it is that a clear that a daughter-in-law, like Gladys, is not a direct beneficiary of her father-in-law's estate and that she has no legal right to a share in her own name. However, I note that in her testimony, Gladys stated that she is not claiming the subject property WAMUNYU/KAMBIITI/117 for herself alone. She is the surviving spouse of the Deceased’s son, Samuel and the mother of his five children who are the grandchildren of the deceased). As stated above, the law, specifically section 41 of the Law of Succession Act is clear that the children of a deceased child, that is, the grandchildren "step into the shoes" of their dead parent and are entitled to the share that would have gone to him. Therefore, Gladys's legal standing is not to claim the land as her personal property, but to represent the interests of her children, her children who are the rightful beneficiaries of Samuel's share of the estate.
10. Turning to the Objection and the manner of distribution of the estate, I find that Gladys’ testimony and those of her three witnesses are consistent and credible. They all testified that the Deceased had already subdivided and allocated his land to his two sons during his lifetime where Daniel received Wamunyu/Kyangulumi/319 and the unsurveyed Yatta land and Samuel received Wamunyu/Kambiti/117.The distribution of a deceased’s estate is subject to the provisions of section 42 of the Law of Succession Act which reads as follows:“
42. Previous benefits to be brought into account
Where—
(a)an intestate has, during his lifetime or by will, paid, given or settled any property to or for the benefit of a child, grandchild or house; or
(b)property has been appointed or awarded to any child or grandchild under the provisions of section 26 of section 35,
that property shall be taken into account in determining the share of the net intestate estate finally accruing to the child, grandchild or house.
11. The aforementioned section recognizes that during one’s lifetime, a person may give any part of his or her property to any of his child, grandchild or family member or settle them on any part of his or her land. Such a gift or settlement must be taken into account in distributing a deceased’s estate under section 38 (see In re Estate of Cypriano Imanyara Imiru (Deceased) [2022] KECA 1176 (KLR)]. Since the Deceased had already given Daniel his share while he was alive, then those properties are no longer part of the net intestate estate to be distributed under section 38 of the Law of Succession Act which only applies to the property that the deceased owned at the time of his death. The court cannot redistribute property that the deceased had already given away.
12. Gladys’ evidence that Daniel sold both of his allocated parcels and moved to Ekalakala is also uncontroverted. Gladys stated that he came back and was even allocated a portion of Property 117 as a gesture of goodwill and family support and after intervention by the clan. It is therefore clear that Daniel had already received and enjoyed the full benefit of his inheritance from his father and more and he cannot now return and claim a share of his brother's land, which was a separate and distinct allocation by the Deceased. Gladys also denied selling a portion of the Property 117 asserting that she never received any consideration for it and that all she concedes is the 120ft x 100ft plot given to Daniel from that property.
13. In the end, I reject Daniel's proposal for an equal 50:50 split of the Wamunyu/Kambiti/117 property as the same was not part of the Deceased's undistributed estate, but had already been given to Samuel. His only entitlement to that land, based on the clan agreement and Gladys’ concession, is the 120ft x 100ft plot he was given in 2006. I find that the property Wamunyu/Kambiti/117 rightfully belongs to Samuel's children, who are the direct beneficiaries of their father's inheritance and Gladys, as their mother and legal representative, is the appropriate person to hold it in trust for them. Further, property Wamunyu/Kyangulumi/319 is not part of the estate to be distributed as the same was allocated to Daniel and he has already sold it.
14. In the foregoing, the Grant on record is hereby confirmed on terms that property Wamunyu/Kambiti/117, save for the 120ft x 100ft plot given to the Petitioner in 2006, is to be allocated to the Objector Gladys Mwikali Sammy to be held in trust for her children and a certificate of confirmation of grant shall issue accordingly.
DATED SIGNED AND DELIVERED virtually this 3 rd DAY OF SEPTEMBER
2026
............................................................................
J W W MONGARE
JUDGE
IN THE PRESENCE OF
1. Ms. Khandiesi holding for the Petitioner
2. N/A for the Objector
3. Abdisalan- Court Assistant
2 | Page