1. Inheritance disputes frequently bring into sharp focus the delicate balance between family expectations, cultural perceptions and the legal principles governing succession. Courts are often called upon to safeguard the principles of equality and fairness where competing claims arise among beneficiaries regarding entitlement to a deceased person’s estate. Such disputes become particularly pronounced where one beneficiary claims a greater entitlement on account of having cared for the deceased during his lifetime, seeks to exercise control over the shares due to other adult beneficiaries, or relies on alleged oral or written wishes of the deceased despite the succession proceedings having been commenced and prosecuted as an intestate estate.
2. Questions also arise where the family of a deceased beneficiary alleges exclusion or discriminatory treatment in the proposed distribution of the estate.
3. It is against that background that this court is called upon to determine the present dispute in accordance with the provisions of the Law of Succession Act and the constitutional principles of equality and non-discrimination under the Constitution of Kenya, 2010.
4. The deceased herein, Jackson Guto Nyaboga, died on 12th June 2018. The dispute before this court concerns distribution of his estate and, more specifically, whether the deceased died testate or intestate.
5. It is common ground that the deceased had the following children:
1) Moses Nyaboga Guto;
2) Robert Omari Guto (now deceased);
3) Alice Mokeira Guto;
4) Mary Nyasuguta Guto;
5) Kennedy Guto (now deceased);
6) Thomas Momanyi Guto; and
7) George Macridis Guto.
7. The evidence further established that Robert Omari Guto predeceased the deceased leaving behind children represented herein by Nick Aboko Omari while Kennedy Guto died without wife or children.
8. The estate of the deceased comprises principally:
1) LR No. Nyansiongo/Gesima Scheme/200 measuring approximately 7.1 hectares equivalent to approximately 17.54 acres;
2) LR No. North Mugirango/Ikonge/688 measuring approximately 0.86 hectares equivalent to approximately 2.13 acres; and
3) Monies held in an Absa Bank account.
9. The record shows that these proceedings were commenced by way of a petition for grant of letters of administration intestate filed by George Macridis Guto and Alice Mokeira Guto in respect of the estate of the deceased. The succession proceedings were however met with objections lodged by Moses Nyaboga Guto and Nick Aboko Omari who became the 1st and 2nd Objectors respectively. Thereafter, by consent recorded on 12th May 2022, George Macridis Guto, Alice Mokeira Guto and Moses Nyaboga Guto were appointed joint administrators of the estate. This court further directed that the estate be preserved pending determination of the dispute and prohibited any further construction, alienation, subdivision or other dealings with the estate properties without the consent of all beneficiaries or leave of the court.
10. Subsequently, the petitioners filed summons for confirmation of grant dated 18th April 2024 together with an affidavit in support proposing that LR No. Nyansiongo/Gesima Scheme/200 be distributed as follows:
1) Moses Nyaboga Guto to receive approximately 4 acres;
2) Thomas Momanyi Guto to receive approximately 4 acres; and
3) George Macridis Guto to receive the balance of the property for himself and in trust for Alice Mokeira Guto and Mary Nyasuguta Guto.
11. The petitioners further proposed that LR No. North Mugirango/Ikonge/688 measuring approximately 0.86 hectares equivalent to approximately 2.13 acres be allocated wholly to the house of the late Robert Omari Guto represented by Nick Aboko Omari.
12. Following the filing of the summons for confirmation of grant, Moses Nyaboga Guto filed an affidavit of protest dated 20th April 2024 opposing the petitioners’ proposed mode of distribution and contending that LR No. Nyansiongo/Gesima Scheme/200 ought to be shared equally amongst all the children of the deceased including the house of Robert Omari Guto pursuant to section 41 of the Act.
13. Nick Aboko Omari similarly filed an affidavit of protest sworn on 20th June 2024 opposing the petitioners’ proposed mode of distribution and asserting that the house of Robert Omari Guto was entitled to inherit equally from LR No. Nyansiongo/Gesima Scheme/200 together with the other children of the deceased and proposed that LR No. Nyansiongo/Gesima Scheme/200 and LR No. North Mugirango/Ikonge/688 be distributed equally amongst all the beneficiaries including the house of Robert Omari Guto.
14. The disagreement regarding the proposed mode of distribution persisted and the parties were unable to reach consensus on how the estate ought to devolve. Consequently, on 27th May 2024, this court directed that the dispute concerning distribution of the estate be canvassed by way of viva voce evidence and granted parties liberty to file witness statements, affidavits and documentary evidence before the hearing date.
15. At the hearing, Moses Nyaboga Guto, the first-born son of the deceased and one of the administrators of the estate testified that the deceased had seven children namely Moses Nyaboga Guto, Robert Omari Guto, Alice Mokeira Guto, Mary Nyasuguta Guto, Kennedy Guto, Thomas Momanyi Guto and George Macridis Guto. He stated that Robert Omari Guto and Kennedy Guto had since died though Robert Omari Guto left behind children while Kennedy Guto died without dependants. He further testified that the deceased left behind LR No. Nyansiongo/Gesima Scheme/200 and LR No. North Mugirango/Ikonge/688 together with an Absa Bank account into which tea proceeds from the estate property were deposited. It was his testimony that the deceased did not leave behind a will. He stated that disagreements arose after the death of the deceased because some family members objected to the children of Robert Omari Guto inheriting from the estate.
16. The witness stated that in his view LR No. Nyansiongo/Gesima Scheme/200 measuring approximately 17.54 acres ought to be shared equally amongst all the children of the deceased including the house of Robert Omari and LR No. North Mugirango/Ikonge/688 be shared amongst the sons.
17. The witness acknowledged that although the deceased had at some point expressed wishes regarding distribution of the property, no consensus was reached within the family concerning the alleged wishes. He further testified that the deceased had not specifically allocated any portion to the house of Robert Omari Guto.
18. Nick Aboko Omari stated that he was the administrator of the estate of the late Robert Omari Guto and had authority from the other members of the said house to represent their interests in these proceedings. He added that the late Robert Omari Guto, who was the second-born son of the deceased, predeceased the deceased leaving behind children who were entitled to inherit his share of the estate through representation pursuant to section 41 of the Act.
19. Nick contended that the petitioners’ proposed mode of distribution unfairly excluded the house of Robert Omari Guto from LR No. Nyansiongo/Gesima Scheme/200 and instead confined that house to LR No. North Mugirango/Ikonge/688 only. It was his position that all the children of the deceased together with the house of Robert Omari Guto were entitled to inherit equally from the entirety of the estate. He further contended that the deceased did not distribute LR No. Nyansiongo/Gesima Scheme/200 during his lifetime and that substantial portions of the property remained undeveloped and undistributed. He urged this court to order equal distribution of the estate in accordance with sections 38 and 41 of the Act. He produced the Surveyor’s Report dated 23rd April 2026 prepared by Henry O. Owuor, the County Surveyor, Nyamira County, concerning LR No. Nyansiongo/Gesima Scheme/200 and LR No. North Mugirango/Ikonge/688. He also produced the valuation report dated 28th April 2026 prepared by Duncan Njiri of Nirvana Appraisal Limited concerning LR No. Gesima Settlement Scheme/200. He maintained that the children of Robert Omari Guto were entitled to inherit equally from the estate of the deceased through representation pursuant to section 41 of the Act.
20. In support of the Petitioners’ case, George Macridis Guto, a son of the deceased, testified that during his lifetime the deceased allegedly distributed LR No. Nyansiongo/Gesima Scheme/200 by allocating approximately 4 acres each to Moses Nyaboga Guto and Thomas Momanyi Guto while reserving the balance of the property for himself and the deceased’s daughters namely Alice Mokeira Guto and Mary Nyasuguta Guto.
21. He further testified that the deceased trusted him and that he assisted both the deceased and the deceased’s wife during their old age, including management of the deceased’s bank account as a co-signatory after the deceased became elderly.
22. He maintained that the deceased intended the daughters to benefit through him and that the house of Robert Omari Guto ought to inherit LR No. North Mugirango/Ikonge/688 only.
23. Mike Onsomi, the Senior Chief of Nyansiongo Location, testified that in the year 2015 he visited the deceased in the company of village elder Manoa Nyangwara during which meeting the deceased allegedly stated that he had distributed LR No. Nyansiongo/Gesima Scheme/200 by allocating approximately 4 acres each to Moses Guto and Thomas Guto while reserving the balance of the property for George Guto and his sisters, with the understanding that George Guto would hold the daughters’ shares in trust. He further acknowledged that daughters possess equal inheritance rights and that the children of a deceased son inherit through representation.
24. Thomas Momanyi Guto, a son of the deceased, testified that during a family meeting allegedly held on 09th November 2013 attended by the deceased, Nyang’au Guto, Moses Guto, George Guto and himself, the deceased allegedly distributed LR No. Nyansiongo/Gesima Scheme/200 by allocating approximately 4 acres each to Moses Guto and Thomas Guto while reserving the balance of the property for George Guto on behalf of himself and the deceased’s daughters. He further testified that George Guto together with the daughters assisted the deceased and the deceased’s wife during their old age.
25. Alice Mokeira Guto, a daughter of the deceased, testified that the deceased informed her that George Guto would hold the balance of LR No. Nyansiongo/Gesima Scheme/200 for himself and on behalf of herself and her sister Mary Nyasuguta Guto. She further testified that George Guto assisted the deceased and the deceased’s wife during their old age and that she trusted him to continue holding the property in accordance with the deceased’s wishes.
26. Mary Nyasuguta Guto, also a daughter of the deceased, testified that although she was not present during the family meeting where the deceased allegedly distributed the land, the deceased later informed her that George Guto would hold the balance of the property for himself and on behalf of herself and Alice Mokeira Guto. She further testified that George Guto had been assisting and supporting both herself and the deceased’s household and that she expected to benefit from the portion the deceased allegedly entrusted to him.
27. Upon conclusion of the oral hearing, this court directed the parties to file written submissions together with survey reports indicating the occupation and status of the estate properties on the ground.
28. In the Petitioners’ written submissions dated 16th June 2026 filed by M/s G.M. Nyambati & Company Advocates, counsel submitted that although the deceased died intestate, he had during his lifetime expressed and implemented his wishes regarding distribution of the estate properties and that the beneficiaries had settled on their respective portions accordingly. Counsel further submitted that George Macridis Guto assisted the deceased during his lifetime and was intended to hold part of the property in trust for the deceased’s daughters. The Petitioners accordingly urged this court to adopt their proposed mode of distribution together with the survey report dated 07th May 2026.
29. In the 1st Objector’s written submissions dated 16th April 2026 filed by GCM Advocates LLP, it was contended that the deceased had during his lifetime distributed his properties amongst the beneficiaries in accordance with his wishes and Abagusii customary law and that the Petitioners’ proposed mode of distribution ought to be adopted by the court. It was further submitted that the beneficiaries had occupied and developed their respective portions of the estate properties in accordance with the deceased’s wishes and that the prevailing occupation on the ground ought to be upheld.
30. In the 2nd Objector’s written submissions dated 23rd April 2026 filed in person by Nick Aboko Omari, it was contended that the deceased died intestate, that the alleged oral wishes did not constitute a valid will under section 9 of the Law of Succession Act and that the children of Robert Omari Guto were entitled to inherit through representation from the entirety of the estate.
31. This court has carefully considered the pleadings, oral evidence, documentary exhibits, surveyor’s reports, valuation reports, written submissions and the authorities cited by the parties and identified the following issues for determination:
1) Whether the deceased died testate or intestate;
2) Whether the house of Robert Omari Guto is entitled to inherit from the estate of the deceased; and
3) How the estate of the deceased ought to be distributed.
32. The Petitioners’ case was substantially anchored on the contention that although these succession proceedings were commenced as intestate proceedings, the deceased had during his lifetime expressed wishes regarding distribution of LR No. Nyansiongo/Gesima Scheme/200 and had allegedly distributed portions thereof amongst the beneficiaries prior to his death.
33. In support of that contention, reliance was placed on the evidence of George Macridis Guto, Mike Onsomi, Thomas Momanyi Guto and Mary Nyasuguta Guto, all of whom testified that the deceased had during meetings allegedly held prior to his death expressed wishes regarding distribution of LR No. Nyansiongo/Gesima Scheme/200.
34. The Objectors consistently maintained throughout the proceedings that the deceased died intestate and that the alleged oral declarations relied upon by the Petitioners did not satisfy the legal requirements governing validity of oral wills under the Law of Succession Act.
35. This court notes from the record that these proceedings were commenced, prosecuted and defended throughout as intestate succession proceedings. The petition for grant of letters of administration intestate, the grant issued by this court and the summons for confirmation of grant were all founded upon intestate succession.
36. This court further notes that although an alleged written will dated 09th February 2015 was introduced during the hearing, the same was subsequently expunged from this court record vide the ruling delivered on 01st July 2025 for failure to satisfy the legal requirements governing validity of wills and due to apparent inconsistencies and alterations appearing on the face of the document.
37. The only remaining question for determination under this issue is whether the oral declarations attributed to the deceased constituted a valid oral will capable of governing distribution of the estate.
38. The Petitioners relied on the evidence of George Macridis Guto, Mike Onsomi, Thomas Momanyi Guto and Mary Nyasuguta Guto who testified that the deceased had during various family meetings allegedly expressed wishes regarding distribution of LR No. Nyansiongo/Gesima Scheme/200 and had allegedly allocated approximately 4 acres each to Moses Nyaboga Guto and Thomas Momanyi Guto while reserving the balance of the property for George Macridis Guto to hold for himself and the deceased’s daughters.
39. This court has carefully considered sections 5 and 9 of the Law of Succession Act together with the authorities cited by the parties concerning validity of oral wills. Section 9 of the Law of Succession Act provides as follows:
“No oral will shall be valid unless—
(a) it is made before two or more competent witnesses; and
(b) the testator dies within a period of three months from the date of making the will.”
40. The effect of section 9 of the Law of Succession Act is that two mandatory conditions must coexist before an oral will can be upheld by the court. First, the oral declaration must be made before two or more competent witnesses and secondly, the testator must die within three months from the date the oral will was made. Failure to satisfy either requirement renders the alleged oral will invalid.
41. In Re Estate of Joyce Kanjiru Njiru (Deceased) [2017] KEHC 1435 (KLR), relied upon by the 2nd Objector, the court held that where an alleged oral will fails to satisfy the requirements of section 9 of the Law of Succession Act, the estate devolves through intestate succession. The authority underscores the mandatory nature of the statutory requirements governing oral wills and demonstrates that informal family discussions or expressions of intention cannot displace the statutory framework governing intestate succession unless the requirements of section 9 are strictly satisfied. The same principle was reiterated in Elizabeth Chepkoech Salat v Josephine Chesau Chepkorir Salat [2015] eKLR, also relied upon by the 2nd Objector, where the court emphasized that an oral will must strictly comply with the requirements of section 9 of the Law of Succession Act.
42. Applying the foregoing principles to the present dispute, this court notes that the oral declarations relied upon by the Petitioners were alleged to have been made during family meetings held in or about 2013 and 2015 whereas the deceased died on 12th June 2018. Even assuming that the alleged declarations were made in the manner described by the Petitioners’ witnesses, the same would still fall outside the statutory three-month period prescribed under section 9 of the Law of Succession Act.
43. The Petitioners further contended that the deceased had already distributed the suit property during his lifetime in accordance with his wishes and consistent with Abagusii customary practices. However, no documentary evidence of subdivision, transfer, mutation, gift inter vivos or completed transmission was produced before court to demonstrate that the deceased had conclusively implemented the alleged distribution during his lifetime. To the contrary, the estate properties remained registered in the deceased’s name at the time of his death.
44. The evidence placed before court therefore established, at most, informal expressions of intention or family discussions regarding possible future distribution of the estate rather than a legally enforceable oral will recognized under the Law of Succession Act.
45. This court consequently finds that the alleged oral declarations attributed to the deceased did not constitute a valid oral will capable of governing distribution of the estate herein.
46. The estate of the deceased therefore falls for distribution in accordance with the provisions governing intestate succession under the Law of Succession Act.
47. The second issue for determination is whether the house of Robert Omari Guto is entitled to inherit from the estate of the deceased through representation. The Petitioners proposed that the house of Robert Omari Guto inherit LR No. North Mugirango/Ikonge/688 only while the Objectors contended that the said house was entitled to inherit equally from the entirety of the estate.
48. It is not disputed that Robert Omari Guto was a son of the deceased who predeceased him leaving behind children represented herein by Nick Aboko Omari as the legal representative of his estate.
49. The applicable law regarding inheritance by grandchildren where their parent predeceases the intestate is section 41 of the Law of Succession Act which embodies the doctrine of representation. Section 41 of the Law of Succession Act provides as follows:
“41. Property devolving upon child to be held in trust
Where reference is made in this Act to the ‘net intestate estate’, or the residue thereof, devolving upon a child or children, the property comprised therein shall be held in trust, in equal shares in the case of more than one child, for all or any of the children of the intestate who attain the age of eighteen years or who, being female, marry under that age, and for all or any of the issue of any child of the intestate who predecease him and who attain that age or so marry, in which case the issue shall take through degrees, in equal shares, the share which their parent would have taken had he not predeceased the intestate.”
50. In Christine Wangari Gachigi v Elizabeth Wanjira Evans & 11 Others [2014] KECA 150 (KLR), relied upon by the Objectors, the Court of Appeal held that although sections 35 and 38 of the Law of Succession Act do not expressly mention grandchildren, section 41 incorporates the doctrine of representation thereby permitting grandchildren to step into the shoes of their deceased parent and inherit the share their parent would have inherited had he or she survived the intestate. The Court further explained that such inheritance occurs per stirpes, meaning that the descendants collectively take the share due to their deceased parent.
51. The principle articulated in the foregoing authority applies directly to the present dispute because the children of Robert Omari Guto are claiming through representation following the death of their father prior to the deceased’s demise. Their entitlement therefore arises through the share which Robert Omari Guto himself would have inherited from the deceased had he survived.
52. The same position was reaffirmed in In Re Estate of Japheth Kisaka Ayuya (Deceased) [2023] KEHC 21211 (KLR), relied upon by the 1st Objector, where the court reiterated that grandchildren inherit through representation where their parent predeceases the intestate.
53. This court has also considered the decision in Omollo v Ongoro (Succession Cause 366 of 2001) [2023] KEHC 18999 (KLR) cited by the 1st Objector concerning the doctrine of representation and equality in intestate succession. The authority reinforces the principle that beneficiaries claiming through a deceased child are entitled to the share due to that child under the Law of Succession Act.
54. The Petitioners nevertheless urged the court to allocate the house of Robert Omari Guto LR No. North Mugirango/Ikonge/688 only on the basis that the deceased had allegedly settled the other beneficiaries on LR No. Nyansiongo/Gesima Scheme/200 during his lifetime.
55. However, having already found that the alleged oral declarations did not constitute a valid oral will and further noting the absence of evidence demonstrating completed inter vivos distribution by the deceased, the court finds no legal basis for excluding the house of Robert Omari Guto from sharing in LR No. Nyansiongo/Gesima Scheme/200.
56. The survey reports filed before court further demonstrated that substantial portions of LR No. Gesima Settlement Scheme/200 remained undeveloped and available for redistribution notwithstanding the existing occupation by some beneficiaries.
57. To the extent that reliance was placed on customary notions regarding preferential inheritance by particular sons or allocation of larger portions to certain beneficiaries, the court reiterates that distribution of the estate herein is governed by the Constitution and the Law of Succession Act which guarantee equal inheritance rights subject only to the statutory framework governing intestate succession and representation.
58. This court consequently finds that the house of Robert Omari Guto is entitled, through representation, to inherit from the entirety of the estate of the deceased in the same manner as the other beneficiaries.
59. The final issue for determination concerns the appropriate mode of distribution of the estate of the deceased. In resolving that issue, this court has carefully considered the oral testimony tendered before court, the documentary exhibits produced by the parties, the survey reports filed pursuant to the court’s directions, the valuation report produced by the 2nd Objector, the prevailing occupation on the ground, the written submissions filed by the parties and the authorities cited.
60. As already observed earlier in this judgment, it is common ground that the deceased died intestate and was survived by Moses Nyaboga Guto, Alice Mokeira Guto, Mary Nyasuguta Guto, Thomas Momanyi Guto and George Macridis Guto together with the children of Robert Omari Guto who are entitled to inherit through representation, while Kennedy Guto predeceased the deceased without leaving a wife or children. The evidence further established that the estate principally comprises LR No. Gesima Settlement Scheme/200, LR No. North Mugirango/Ikonge/688 and monies held in the deceased’s Absa Bank account.
61. The dispute before court therefore concerns the mode of distribution of the estate. Whereas the Petitioners proposed that Moses Nyaboga Guto and Thomas Momanyi Guto retain approximately 4 acres each out of LR No. Gesima Settlement Scheme/200 and that the balance thereof be held by George Macridis Guto for himself and on behalf of Alice Mokeira Guto and Mary Nyasuguta Guto, with the house of Robert Omari Guto inheriting LR No. North Mugirango/Ikonge/688 only, the Objectors contended that the entirety of the estate ought to be distributed equally amongst all the beneficiaries in accordance with the provisions governing intestate succession under the Law of Succession Act.
62. This court has however already found that the deceased did not leave a valid oral will and that there was no completed inter vivos distribution capable of excluding any beneficiary from the estate. Accordingly, the competing proposals on distribution must be determined in accordance with the statutory framework governing intestate succession.
63. The applicable law governing distribution of the estate is section 38 of the Law of Succession Act which provides as follows:
“38. Where an intestate has left a surviving child or children but no spouse, the net intestate estate shall, subject to the provisions of sections 41 and 42, devolve upon the surviving child, if there be only one, or shall be equally divided among the surviving children.”
64. The effect of section 38 of the Law of Succession Act is that where an intestate die leaving children but no surviving spouse, the estate devolves equally amongst the surviving children subject only to the principles embodied under sections 41 and 42 of the Act. In the present dispute, section 41 applies in relation to the children of Robert Omari Guto who inherit through representation.
65. This court has carefully considered the surveyors’ report prepared by Moha Survey Consultants dated 07th May 2026 and filed by the Petitioners, the County Surveyor’s report dated 23rd April 2026 filed by the 2nd Objector, Nick Omari, as well as the valuation report dated 28th April 2026 prepared by Nirvana Appraisal Limited in respect of LR No. Gesima Settlement Scheme/200. The valuation report indicates that the valuers received instructions from Moses Nyaboga Guto and Nick Omari.
66. The evidence before court established that Moses Nyaboga Guto, Thomas Momanyi Guto and George Macridis Guto occupied portions of LR No. Gesima Settlement Scheme/200 upon which they had established homes and undertaken cultivation activities while Alice Mokeira Guto resided at the deceased’s homestead and Mary Nyasuguta Guto utilised portions of the land for cultivation and grazing. The dispute between the parties principally concerned whether such occupation constituted completed distribution of the estate during the lifetime of the deceased.
67. The surveyors’ report prepared by Moha Survey Consultants associated Mary Nyasuguta Guto with grazing land measuring approximately 2.67 hectares equivalent to about 6.60 acres; George Macridis Guto with grazing land measuring approximately 0.34 hectares equivalent to about 0.84 acres, compound area measuring approximately 0.27 hectares equivalent to about 0.67 acres and agricultural land measuring approximately 0.76 hectares equivalent to about 1.88 acres; Thomas Momanyi Guto with grazing land measuring approximately 0.35 hectares equivalent to about 0.86 acres, compound area measuring approximately 0.34 hectares equivalent to about 0.84 acres and agricultural land measuring approximately 0.74 hectares equivalent to about 1.83 acres; and Moses Nyaboga Guto with grazing land measuring approximately 0.34 hectares equivalent to about 0.84 acres, compound area measuring approximately 0.23 hectares equivalent to about 0.57 acres and agricultural land measuring approximately 0.74 hectares equivalent to about 1.83 acres. The report further associated LR No. North Mugirango/Ikonge/688 exclusively with Moses Nyaboga Guto and was accompanied by survey sketches, satellite imagery and photographs depicting homesteads, tea crops, pasture land and other developments on LR No. Gesima Settlement Scheme/200.
68. The County Surveyor’s report on the other hand established that LR No. Gesima Settlement Scheme/200 contained occupied compounds utilised by Moses Nyaboga Guto measuring approximately 0.28 hectares equivalent to about 0.69 acres, Thomas Momanyi Guto measuring approximately 0.41 hectares equivalent to about 1.01 acres, George Macridis Guto measuring approximately 0.28 hectares equivalent to about 0.69 acres and the deceased’s homestead measuring appro
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2. Questions also arise where the family of a deceased beneficiary alleges exclusion or discriminatory treatment in the proposed distribution of the estate.
3. It is against that background that this court is called upon to determine the present dispute in accordance with the provisions of the Law of Succession Act and the constitutional principles of equality and non-discrimination under the Constitution of Kenya, 2010.
4. The deceased herein, Jackson Guto Nyaboga, died on 12th June 2018. The dispute before this court concerns distribution of his estate and, more specifically, whether the deceased died testate or intestate.
5. It is common ground that the deceased had the following children:
1) Moses Nyaboga Guto;
2) Robert Omari Guto (now deceased);
3) Alice Mokeira Guto;
4) Mary Nyasuguta Guto;
5) Kennedy Guto (now deceased);
6) Thomas Momanyi Guto; and
7) George Macridis Guto.
7. The evidence further established that Robert Omari Guto predeceased the deceased leaving behind children represented herein by Nick Aboko Omari while Kennedy Guto died without wife or children.
8. The estate of the deceased comprises principally:
1) LR No. Nyansiongo/Gesima Scheme/200 measuring approximately 7.1 hectares equivalent to approximately 17.54 acres;
2) LR No. North Mugirango/Ikonge/688 measuring approximately 0.86 hectares equivalent to approximately 2.13 acres; and
3) Monies held in an Absa Bank account.
9. The record shows that these proceedings were commenced by way of a petition for grant of letters of administration intestate filed by George Macridis Guto and Alice Mokeira Guto in respect of the estate of the deceased. The succession proceedings were however met with objections lodged by Moses Nyaboga Guto and Nick Aboko Omari who became the 1st and 2nd Objectors respectively. Thereafter, by consent recorded on 12th May 2022, George Macridis Guto, Alice Mokeira Guto and Moses Nyaboga Guto were appointed joint administrators of the estate. This court further directed that the estate be preserved pending determination of the dispute and prohibited any further construction, alienation, subdivision or other dealings with the estate properties without the consent of all beneficiaries or leave of the court.
10. Subsequently, the petitioners filed summons for confirmation of grant dated 18th April 2024 together with an affidavit in support proposing that LR No. Nyansiongo/Gesima Scheme/200 be distributed as follows:
1) Moses Nyaboga Guto to receive approximately 4 acres;
2) Thomas Momanyi Guto to receive approximately 4 acres; and
3) George Macridis Guto to receive the balance of the property for himself and in trust for Alice Mokeira Guto and Mary Nyasuguta Guto.
11. The petitioners further proposed that LR No. North Mugirango/Ikonge/688 measuring approximately 0.86 hectares equivalent to approximately 2.13 acres be allocated wholly to the house of the late Robert Omari Guto represented by Nick Aboko Omari.
12. Following the filing of the summons for confirmation of grant, Moses Nyaboga Guto filed an affidavit of protest dated 20th April 2024 opposing the petitioners’ proposed mode of distribution and contending that LR No. Nyansiongo/Gesima Scheme/200 ought to be shared equally amongst all the children of the deceased including the house of Robert Omari Guto pursuant to section 41 of the Act.
13. Nick Aboko Omari similarly filed an affidavit of protest sworn on 20th June 2024 opposing the petitioners’ proposed mode of distribution and asserting that the house of Robert Omari Guto was entitled to inherit equally from LR No. Nyansiongo/Gesima Scheme/200 together with the other children of the deceased and proposed that LR No. Nyansiongo/Gesima Scheme/200 and LR No. North Mugirango/Ikonge/688 be distributed equally amongst all the beneficiaries including the house of Robert Omari Guto.
14. The disagreement regarding the proposed mode of distribution persisted and the parties were unable to reach consensus on how the estate ought to devolve. Consequently, on 27th May 2024, this court directed that the dispute concerning distribution of the estate be canvassed by way of viva voce evidence and granted parties liberty to file witness statements, affidavits and documentary evidence before the hearing date.
15. At the hearing, Moses Nyaboga Guto, the first-born son of the deceased and one of the administrators of the estate testified that the deceased had seven children namely Moses Nyaboga Guto, Robert Omari Guto, Alice Mokeira Guto, Mary Nyasuguta Guto, Kennedy Guto, Thomas Momanyi Guto and George Macridis Guto. He stated that Robert Omari Guto and Kennedy Guto had since died though Robert Omari Guto left behind children while Kennedy Guto died without dependants. He further testified that the deceased left behind LR No. Nyansiongo/Gesima Scheme/200 and LR No. North Mugirango/Ikonge/688 together with an Absa Bank account into which tea proceeds from the estate property were deposited. It was his testimony that the deceased did not leave behind a will. He stated that disagreements arose after the death of the deceased because some family members objected to the children of Robert Omari Guto inheriting from the estate.
16. The witness stated that in his view LR No. Nyansiongo/Gesima Scheme/200 measuring approximately 17.54 acres ought to be shared equally amongst all the children of the deceased including the house of Robert Omari and LR No. North Mugirango/Ikonge/688 be shared amongst the sons.
17. The witness acknowledged that although the deceased had at some point expressed wishes regarding distribution of the property, no consensus was reached within the family concerning the alleged wishes. He further testified that the deceased had not specifically allocated any portion to the house of Robert Omari Guto.
18. Nick Aboko Omari stated that he was the administrator of the estate of the late Robert Omari Guto and had authority from the other members of the said house to represent their interests in these proceedings. He added that the late Robert Omari Guto, who was the second-born son of the deceased, predeceased the deceased leaving behind children who were entitled to inherit his share of the estate through representation pursuant to section 41 of the Act.
19. Nick contended that the petitioners’ proposed mode of distribution unfairly excluded the house of Robert Omari Guto from LR No. Nyansiongo/Gesima Scheme/200 and instead confined that house to LR No. North Mugirango/Ikonge/688 only. It was his position that all the children of the deceased together with the house of Robert Omari Guto were entitled to inherit equally from the entirety of the estate. He further contended that the deceased did not distribute LR No. Nyansiongo/Gesima Scheme/200 during his lifetime and that substantial portions of the property remained undeveloped and undistributed. He urged this court to order equal distribution of the estate in accordance with sections 38 and 41 of the Act. He produced the Surveyor’s Report dated 23rd April 2026 prepared by Henry O. Owuor, the County Surveyor, Nyamira County, concerning LR No. Nyansiongo/Gesima Scheme/200 and LR No. North Mugirango/Ikonge/688. He also produced the valuation report dated 28th April 2026 prepared by Duncan Njiri of Nirvana Appraisal Limited concerning LR No. Gesima Settlement Scheme/200. He maintained that the children of Robert Omari Guto were entitled to inherit equally from the estate of the deceased through representation pursuant to section 41 of the Act.
20. In support of the Petitioners’ case, George Macridis Guto, a son of the deceased, testified that during his lifetime the deceased allegedly distributed LR No. Nyansiongo/Gesima Scheme/200 by allocating approximately 4 acres each to Moses Nyaboga Guto and Thomas Momanyi Guto while reserving the balance of the property for himself and the deceased’s daughters namely Alice Mokeira Guto and Mary Nyasuguta Guto.
21. He further testified that the deceased trusted him and that he assisted both the deceased and the deceased’s wife during their old age, including management of the deceased’s bank account as a co-signatory after the deceased became elderly.
22. He maintained that the deceased intended the daughters to benefit through him and that the house of Robert Omari Guto ought to inherit LR No. North Mugirango/Ikonge/688 only.
23. Mike Onsomi, the Senior Chief of Nyansiongo Location, testified that in the year 2015 he visited the deceased in the company of village elder Manoa Nyangwara during which meeting the deceased allegedly stated that he had distributed LR No. Nyansiongo/Gesima Scheme/200 by allocating approximately 4 acres each to Moses Guto and Thomas Guto while reserving the balance of the property for George Guto and his sisters, with the understanding that George Guto would hold the daughters’ shares in trust. He further acknowledged that daughters possess equal inheritance rights and that the children of a deceased son inherit through representation.
24. Thomas Momanyi Guto, a son of the deceased, testified that during a family meeting allegedly held on 09th November 2013 attended by the deceased, Nyang’au Guto, Moses Guto, George Guto and himself, the deceased allegedly distributed LR No. Nyansiongo/Gesima Scheme/200 by allocating approximately 4 acres each to Moses Guto and Thomas Guto while reserving the balance of the property for George Guto on behalf of himself and the deceased’s daughters. He further testified that George Guto together with the daughters assisted the deceased and the deceased’s wife during their old age.
25. Alice Mokeira Guto, a daughter of the deceased, testified that the deceased informed her that George Guto would hold the balance of LR No. Nyansiongo/Gesima Scheme/200 for himself and on behalf of herself and her sister Mary Nyasuguta Guto. She further testified that George Guto assisted the deceased and the deceased’s wife during their old age and that she trusted him to continue holding the property in accordance with the deceased’s wishes.
26. Mary Nyasuguta Guto, also a daughter of the deceased, testified that although she was not present during the family meeting where the deceased allegedly distributed the land, the deceased later informed her that George Guto would hold the balance of the property for himself and on behalf of herself and Alice Mokeira Guto. She further testified that George Guto had been assisting and supporting both herself and the deceased’s household and that she expected to benefit from the portion the deceased allegedly entrusted to him.
27. Upon conclusion of the oral hearing, this court directed the parties to file written submissions together with survey reports indicating the occupation and status of the estate properties on the ground.
28. In the Petitioners’ written submissions dated 16th June 2026 filed by M/s G.M. Nyambati & Company Advocates, counsel submitted that although the deceased died intestate, he had during his lifetime expressed and implemented his wishes regarding distribution of the estate properties and that the beneficiaries had settled on their respective portions accordingly. Counsel further submitted that George Macridis Guto assisted the deceased during his lifetime and was intended to hold part of the property in trust for the deceased’s daughters. The Petitioners accordingly urged this court to adopt their proposed mode of distribution together with the survey report dated 07th May 2026.
29. In the 1st Objector’s written submissions dated 16th April 2026 filed by GCM Advocates LLP, it was contended that the deceased had during his lifetime distributed his properties amongst the beneficiaries in accordance with his wishes and Abagusii customary law and that the Petitioners’ proposed mode of distribution ought to be adopted by the court. It was further submitted that the beneficiaries had occupied and developed their respective portions of the estate properties in accordance with the deceased’s wishes and that the prevailing occupation on the ground ought to be upheld.
30. In the 2nd Objector’s written submissions dated 23rd April 2026 filed in person by Nick Aboko Omari, it was contended that the deceased died intestate, that the alleged oral wishes did not constitute a valid will under section 9 of the Law of Succession Act and that the children of Robert Omari Guto were entitled to inherit through representation from the entirety of the estate.
31. This court has carefully considered the pleadings, oral evidence, documentary exhibits, surveyor’s reports, valuation reports, written submissions and the authorities cited by the parties and identified the following issues for determination:
1) Whether the deceased died testate or intestate;
2) Whether the house of Robert Omari Guto is entitled to inherit from the estate of the deceased; and
3) How the estate of the deceased ought to be distributed.
32. The Petitioners’ case was substantially anchored on the contention that although these succession proceedings were commenced as intestate proceedings, the deceased had during his lifetime expressed wishes regarding distribution of LR No. Nyansiongo/Gesima Scheme/200 and had allegedly distributed portions thereof amongst the beneficiaries prior to his death.
33. In support of that contention, reliance was placed on the evidence of George Macridis Guto, Mike Onsomi, Thomas Momanyi Guto and Mary Nyasuguta Guto, all of whom testified that the deceased had during meetings allegedly held prior to his death expressed wishes regarding distribution of LR No. Nyansiongo/Gesima Scheme/200.
34. The Objectors consistently maintained throughout the proceedings that the deceased died intestate and that the alleged oral declarations relied upon by the Petitioners did not satisfy the legal requirements governing validity of oral wills under the Law of Succession Act.
35. This court notes from the record that these proceedings were commenced, prosecuted and defended throughout as intestate succession proceedings. The petition for grant of letters of administration intestate, the grant issued by this court and the summons for confirmation of grant were all founded upon intestate succession.
36. This court further notes that although an alleged written will dated 09th February 2015 was introduced during the hearing, the same was subsequently expunged from this court record vide the ruling delivered on 01st July 2025 for failure to satisfy the legal requirements governing validity of wills and due to apparent inconsistencies and alterations appearing on the face of the document.
37. The only remaining question for determination under this issue is whether the oral declarations attributed to the deceased constituted a valid oral will capable of governing distribution of the estate.
38. The Petitioners relied on the evidence of George Macridis Guto, Mike Onsomi, Thomas Momanyi Guto and Mary Nyasuguta Guto who testified that the deceased had during various family meetings allegedly expressed wishes regarding distribution of LR No. Nyansiongo/Gesima Scheme/200 and had allegedly allocated approximately 4 acres each to Moses Nyaboga Guto and Thomas Momanyi Guto while reserving the balance of the property for George Macridis Guto to hold for himself and the deceased’s daughters.
39. This court has carefully considered sections 5 and 9 of the Law of Succession Act together with the authorities cited by the parties concerning validity of oral wills. Section 9 of the Law of Succession Act provides as follows:
“No oral will shall be valid unless—
(a) it is made before two or more competent witnesses; and
(b) the testator dies within a period of three months from the date of making the will.”
40. The effect of section 9 of the Law of Succession Act is that two mandatory conditions must coexist before an oral will can be upheld by the court. First, the oral declaration must be made before two or more competent witnesses and secondly, the testator must die within three months from the date the oral will was made. Failure to satisfy either requirement renders the alleged oral will invalid.
41. In Re Estate of Joyce Kanjiru Njiru (Deceased) [2017] KEHC 1435 (KLR), relied upon by the 2nd Objector, the court held that where an alleged oral will fails to satisfy the requirements of section 9 of the Law of Succession Act, the estate devolves through intestate succession. The authority underscores the mandatory nature of the statutory requirements governing oral wills and demonstrates that informal family discussions or expressions of intention cannot displace the statutory framework governing intestate succession unless the requirements of section 9 are strictly satisfied. The same principle was reiterated in Elizabeth Chepkoech Salat v Josephine Chesau Chepkorir Salat [2015] eKLR, also relied upon by the 2nd Objector, where the court emphasized that an oral will must strictly comply with the requirements of section 9 of the Law of Succession Act.
42. Applying the foregoing principles to the present dispute, this court notes that the oral declarations relied upon by the Petitioners were alleged to have been made during family meetings held in or about 2013 and 2015 whereas the deceased died on 12th June 2018. Even assuming that the alleged declarations were made in the manner described by the Petitioners’ witnesses, the same would still fall outside the statutory three-month period prescribed under section 9 of the Law of Succession Act.
43. The Petitioners further contended that the deceased had already distributed the suit property during his lifetime in accordance with his wishes and consistent with Abagusii customary practices. However, no documentary evidence of subdivision, transfer, mutation, gift inter vivos or completed transmission was produced before court to demonstrate that the deceased had conclusively implemented the alleged distribution during his lifetime. To the contrary, the estate properties remained registered in the deceased’s name at the time of his death.
44. The evidence placed before court therefore established, at most, informal expressions of intention or family discussions regarding possible future distribution of the estate rather than a legally enforceable oral will recognized under the Law of Succession Act.
45. This court consequently finds that the alleged oral declarations attributed to the deceased did not constitute a valid oral will capable of governing distribution of the estate herein.
46. The estate of the deceased therefore falls for distribution in accordance with the provisions governing intestate succession under the Law of Succession Act.
47. The second issue for determination is whether the house of Robert Omari Guto is entitled to inherit from the estate of the deceased through representation. The Petitioners proposed that the house of Robert Omari Guto inherit LR No. North Mugirango/Ikonge/688 only while the Objectors contended that the said house was entitled to inherit equally from the entirety of the estate.
48. It is not disputed that Robert Omari Guto was a son of the deceased who predeceased him leaving behind children represented herein by Nick Aboko Omari as the legal representative of his estate.
49. The applicable law regarding inheritance by grandchildren where their parent predeceases the intestate is section 41 of the Law of Succession Act which embodies the doctrine of representation. Section 41 of the Law of Succession Act provides as follows:
“41. Property devolving upon child to be held in trust
Where reference is made in this Act to the ‘net intestate estate’, or the residue thereof, devolving upon a child or children, the property comprised therein shall be held in trust, in equal shares in the case of more than one child, for all or any of the children of the intestate who attain the age of eighteen years or who, being female, marry under that age, and for all or any of the issue of any child of the intestate who predecease him and who attain that age or so marry, in which case the issue shall take through degrees, in equal shares, the share which their parent would have taken had he not predeceased the intestate.”
50. In Christine Wangari Gachigi v Elizabeth Wanjira Evans & 11 Others [2014] KECA 150 (KLR), relied upon by the Objectors, the Court of Appeal held that although sections 35 and 38 of the Law of Succession Act do not expressly mention grandchildren, section 41 incorporates the doctrine of representation thereby permitting grandchildren to step into the shoes of their deceased parent and inherit the share their parent would have inherited had he or she survived the intestate. The Court further explained that such inheritance occurs per stirpes, meaning that the descendants collectively take the share due to their deceased parent.
51. The principle articulated in the foregoing authority applies directly to the present dispute because the children of Robert Omari Guto are claiming through representation following the death of their father prior to the deceased’s demise. Their entitlement therefore arises through the share which Robert Omari Guto himself would have inherited from the deceased had he survived.
52. The same position was reaffirmed in In Re Estate of Japheth Kisaka Ayuya (Deceased) [2023] KEHC 21211 (KLR), relied upon by the 1st Objector, where the court reiterated that grandchildren inherit through representation where their parent predeceases the intestate.
53. This court has also considered the decision in Omollo v Ongoro (Succession Cause 366 of 2001) [2023] KEHC 18999 (KLR) cited by the 1st Objector concerning the doctrine of representation and equality in intestate succession. The authority reinforces the principle that beneficiaries claiming through a deceased child are entitled to the share due to that child under the Law of Succession Act.
54. The Petitioners nevertheless urged the court to allocate the house of Robert Omari Guto LR No. North Mugirango/Ikonge/688 only on the basis that the deceased had allegedly settled the other beneficiaries on LR No. Nyansiongo/Gesima Scheme/200 during his lifetime.
55. However, having already found that the alleged oral declarations did not constitute a valid oral will and further noting the absence of evidence demonstrating completed inter vivos distribution by the deceased, the court finds no legal basis for excluding the house of Robert Omari Guto from sharing in LR No. Nyansiongo/Gesima Scheme/200.
56. The survey reports filed before court further demonstrated that substantial portions of LR No. Gesima Settlement Scheme/200 remained undeveloped and available for redistribution notwithstanding the existing occupation by some beneficiaries.
57. To the extent that reliance was placed on customary notions regarding preferential inheritance by particular sons or allocation of larger portions to certain beneficiaries, the court reiterates that distribution of the estate herein is governed by the Constitution and the Law of Succession Act which guarantee equal inheritance rights subject only to the statutory framework governing intestate succession and representation.
58. This court consequently finds that the house of Robert Omari Guto is entitled, through representation, to inherit from the entirety of the estate of the deceased in the same manner as the other beneficiaries.
59. The final issue for determination concerns the appropriate mode of distribution of the estate of the deceased. In resolving that issue, this court has carefully considered the oral testimony tendered before court, the documentary exhibits produced by the parties, the survey reports filed pursuant to the court’s directions, the valuation report produced by the 2nd Objector, the prevailing occupation on the ground, the written submissions filed by the parties and the authorities cited.
60. As already observed earlier in this judgment, it is common ground that the deceased died intestate and was survived by Moses Nyaboga Guto, Alice Mokeira Guto, Mary Nyasuguta Guto, Thomas Momanyi Guto and George Macridis Guto together with the children of Robert Omari Guto who are entitled to inherit through representation, while Kennedy Guto predeceased the deceased without leaving a wife or children. The evidence further established that the estate principally comprises LR No. Gesima Settlement Scheme/200, LR No. North Mugirango/Ikonge/688 and monies held in the deceased’s Absa Bank account.
61. The dispute before court therefore concerns the mode of distribution of the estate. Whereas the Petitioners proposed that Moses Nyaboga Guto and Thomas Momanyi Guto retain approximately 4 acres each out of LR No. Gesima Settlement Scheme/200 and that the balance thereof be held by George Macridis Guto for himself and on behalf of Alice Mokeira Guto and Mary Nyasuguta Guto, with the house of Robert Omari Guto inheriting LR No. North Mugirango/Ikonge/688 only, the Objectors contended that the entirety of the estate ought to be distributed equally amongst all the beneficiaries in accordance with the provisions governing intestate succession under the Law of Succession Act.
62. This court has however already found that the deceased did not leave a valid oral will and that there was no completed inter vivos distribution capable of excluding any beneficiary from the estate. Accordingly, the competing proposals on distribution must be determined in accordance with the statutory framework governing intestate succession.
63. The applicable law governing distribution of the estate is section 38 of the Law of Succession Act which provides as follows:
“38. Where an intestate has left a surviving child or children but no spouse, the net intestate estate shall, subject to the provisions of sections 41 and 42, devolve upon the surviving child, if there be only one, or shall be equally divided among the surviving children.”
64. The effect of section 38 of the Law of Succession Act is that where an intestate die leaving children but no surviving spouse, the estate devolves equally amongst the surviving children subject only to the principles embodied under sections 41 and 42 of the Act. In the present dispute, section 41 applies in relation to the children of Robert Omari Guto who inherit through representation.
65. This court has carefully considered the surveyors’ report prepared by Moha Survey Consultants dated 07th May 2026 and filed by the Petitioners, the County Surveyor’s report dated 23rd April 2026 filed by the 2nd Objector, Nick Omari, as well as the valuation report dated 28th April 2026 prepared by Nirvana Appraisal Limited in respect of LR No. Gesima Settlement Scheme/200. The valuation report indicates that the valuers received instructions from Moses Nyaboga Guto and Nick Omari.
66. The evidence before court established that Moses Nyaboga Guto, Thomas Momanyi Guto and George Macridis Guto occupied portions of LR No. Gesima Settlement Scheme/200 upon which they had established homes and undertaken cultivation activities while Alice Mokeira Guto resided at the deceased’s homestead and Mary Nyasuguta Guto utilised portions of the land for cultivation and grazing. The dispute between the parties principally concerned whether such occupation constituted completed distribution of the estate during the lifetime of the deceased.
67. The surveyors’ report prepared by Moha Survey Consultants associated Mary Nyasuguta Guto with grazing land measuring approximately 2.67 hectares equivalent to about 6.60 acres; George Macridis Guto with grazing land measuring approximately 0.34 hectares equivalent to about 0.84 acres, compound area measuring approximately 0.27 hectares equivalent to about 0.67 acres and agricultural land measuring approximately 0.76 hectares equivalent to about 1.88 acres; Thomas Momanyi Guto with grazing land measuring approximately 0.35 hectares equivalent to about 0.86 acres, compound area measuring approximately 0.34 hectares equivalent to about 0.84 acres and agricultural land measuring approximately 0.74 hectares equivalent to about 1.83 acres; and Moses Nyaboga Guto with grazing land measuring approximately 0.34 hectares equivalent to about 0.84 acres, compound area measuring approximately 0.23 hectares equivalent to about 0.57 acres and agricultural land measuring approximately 0.74 hectares equivalent to about 1.83 acres. The report further associated LR No. North Mugirango/Ikonge/688 exclusively with Moses Nyaboga Guto and was accompanied by survey sketches, satellite imagery and photographs depicting homesteads, tea crops, pasture land and other developments on LR No. Gesima Settlement Scheme/200.
68. The County Surveyor’s report on the other hand established that LR No. Gesima Settlement Scheme/200 contained occupied compounds utilised by Moses Nyaboga Guto measuring approximately 0.28 hectares equivalent to about 0.69 acres, Thomas Momanyi Guto measuring approximately 0.41 hectares equivalent to about 1.01 acres, George Macridis Guto measuring approximately 0.28 hectares equivalent to about 0.69 acres and the deceased’s homestead measuring appro
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