HIGH COURT SUCCESSION CAUSE NO. 883 OF 2009
IN THE MATTER OF THE ESTATE OF PHILIP WACHIRA KOIGU ALIAS WACHIRA KOIGU (DECEASED)
KANJA WACHIRA KOIGU………………………….…..1ST PROTESTOR
GRACE WAMBUI NDUNGU………………….………..2ND PROTESTOR
-VERSUS-
RONALD KAHARU WACHIRA….RESPONDENT/ADMINISTRATOR
JUDGEMENT
1. Before this Court for determination is the Affidavit of Protest Against
Confirmation of Grant dated 17th April 2023 filed by KANJA
WACHIRA KOIGU (hereinafter referred to as ‘the Protestor”).
2. A second Affidavit of Protest dated 3rd October 2023 was filed by
GRACE WAMBUI NDUNGU (hereinafter referred to as ‘the 2nd
Protestor’)
3. The Respondent/Administrator RONALD KAHARU WACHIRA opposed
the protests.
BACKGROUND
4. This succession cause relates to the estate of the late PHILIP WACHIRA
KOIGU (hereinafter ‘the Deceased’) who died intestate on 29th May
1991. A copy of the Death certificate serial No. 386045 was filed in
court on 28th September 2009.
5. The Deceased was survived by the following children;-
(a) Douglas Ndegwa Wachira
(b) Johnson Macharia Wachira
(c) Henry Gichohi Wachira - (Deceased)
(d) Michael Wagura Wachira
(e) Harun Wambugu Wachira
(f) Grace Wambui Wachira
(g) Pricilla Wanjira Wanjau - (Deceased)
(h) Monica Wangari Mwangi
(i) Eunice Wambui Waweru
(j) Winfred Wanjugu Njoroge
(k) Thomas Kanja Wachira
(l) Samuel Kaharu Wachira - (Deceased)
(m) Ronald Kaharu Wachira
(6) The estate of the Deceased comprised the following assets;-
(i) Parcel of Land known as MWEIGA/GAKANGA/110 - measuring
7.4 Hectares.
(ii) Parcel of land known as NYANDARUA/NDARAGWA/BLOCK 1
(KAHUTHA) 88
(7) Following the demise of the Deceased Grant of Letters of Administration
was on 1st April 2010 made to the Respondent Ronald Kaharu
Wachira and Samuel Kaharu Wachira (now Deceased). The Grant
was duly confirmed on 3rd February 2012.
(8) The 1st Protestor herein Kanja Wachira Koigu then filed a Summons
for revocation of Grant dated 24th November 2021 on grounds that
the Grant was obtained fraudulently by making of false statements. The
1st Protestor further alleged that he had been left out of the distribution
of the property. The 1st Protestor categorically denied that he has ever
held the name ‘Thomas’ as was stated in the grant.
(9) Vide a Ruling delivered on 19th October 2022, Hon. Justice Njagi
(retired) allowed the Summons for revocation of Grant and in doing so
made the following orders:-
“(a) The grant of letters of administration intestate to
the estate of Philip Wachira Koigu granted to the
late Samuel Kaharu Wachira and Ronald Kaharu
Wachira on 1/4/2010 and confirmed on 3/2/2012
in this matter is revoked.
(b) The sub-division and registration of land parcel
Mweiga/Gakanja/110 into land parcels Mweiga/Gakanja/
283,284, 285,286, 287, 288 and 289 is hereby cancelled.
(c) The Land Registrar Nyeri is hereby ordered to
rectify the register by cancelling title Nos. Mweiga/Gakanja/283, 284, 285, 286, 287, 288 and 289 and the titles to the said parcels of land are hereby ordered to revert to the original number; Mweiga/Gakanja/110 in the name of the deceased herein, Philip Wachira Koigu, for purposes of distribution of the deceased’s beneficiaries.
(d) A fresh grant of letters of administration is to issue
to the respondent herein, Ronald Kaharu Wachira.”
10. Following this ruling a fresh Grant was issued to the Respondent on 19th
October 2022. The Respondent then filed a summons for confirmation
of Grant dated 1st March 2023. In that Summons the Respondent
proposed that the estate be distributed as follows;-
“(a) MWEIGA/GAKANGA/110 to be shared as follows:-
(1) SAMUEL KAHARU WACHIRA (DCD) - 1.4 acres
(2) HARUN WAMBUGU WACHIRA - 2.42 acres
(3) RONALD KAHARU WACHIRA - 2.54 acres
(4) DOUGLAS NDEGWA WACHIRA - 2.75 acres
(5) HENRY GICHOHI WACHIRA (DCD) - 2.75 acres
(6) JOHSON MACHARIA WACHIRA - 2.67 acres
(7) MICHAEL WAGURA WACHIRA - 3.13 acres”
11. The two Protestors being dissatisfied with the mode of distribution
proposed by the Respondent filed the aforementioned Affidavits of
Protest. The matter was canvassed by way of oral evidence in open
court.
THE EVIDENCE
12. The 1st Protestor Kanja Wachira Koigu stated that he had declined to
sign the consent to confirmation of the Grant as the question of how
the estate was to be distributed had not been discussed or agreed upon
by the family.
13. The 1st protestor took great umbrage at the Respondents insistence
of referring to him by the name ‘Thomas’ He annexed a copy of this
National Identity Card No. 5491231 which gives his names as KANJA
WACHIRA KOIGU (Annexture ‘KWK 3’) to the Affidavit of protest
dated 17th April 2023.
14. The 1st Protestor complained that he had been excluded from the list of
persons who were to benefit from the estate. The 1st Protestor denied
the allegation that the Deceased had during his lifetime gifted to him
the parcel of land known as MWEIGA/GAKANGA/203.
15. According to the 1st Protestor the mode of distribution proposed by the
Respondents was discriminatory as some of the Deceased’s children i.e
himself and all the daughters of the Deceased have unjustifiably been
excluded. His position was that the estate ought to be distributed
among all beneficiaries paying no regard to their gender. The 1st
Protestor stated that the mode of distribution proposed in the summons
for Confirmation of Grant dated 1st March 2023 is a replica of the
proposed mode of distribution in the confirmed Grant dated 3rd
February 2012 which Grant had been revoked by the court. He
proposes that the parcel of land known as Mweiga/Gachanga/110 be
distributed equally amongst all the children of the Deceased save for
those who have waived any right to inherit from the estate.
16. The 2nd Protestor Grace Wambui Ndung’u stated that she was the
eldest child of the Deceased and is currently aged 87 years. She
admits to having signed the consent to confirmation of the Grant but
states that she did not clearly understand the contents of the document
she was signing.
17. Further the 2nd, Protestor avers that she did not sign the consent before
any advocate but stated that the document was brought to her home
in Rurie - Nairutia which is almost 50 Kilometers away from Nyeri
Town and that is where she signed the document.
18. The 2nd Protestor states that she has not waived her right to inherit from
her father’s estate and was not aware that the confirmed grant
effectively disinherited her. She reiterates her belief that all children
are equal under the law and asserts that as a daughter of the Deceased
she is entitled to a share of his estate.
19. The 2nd Protestor states that at no time did the family ever meet to
discuss the mode of distribution and at no time did she ever agree to
the mode of distribution proposed in the summons for confirmation of
Grant. She confirms that Mweiga Plot 203 belongs to the 1st
Protestor and never at any time belonged to the Deceased. The 2nd
Protestor proposes that the property known as Mweiga/Gakanga/
110 be divided equally amongst all the beneficiaries.
20. The Respondent Ronald Kaharu Wachira confirms that he is the
Administrator of the estate of the Deceased having been issued
with letters of Grant of Administration on 19th October 2022. The
Respondent confirms that he filed the Summons for confirmation of
Grant dated 1st March 2023 in which he set out the proposed mode
of distribution of the estate.
21. The Respondent stated that the two protestors were his siblings. He
states that the 2nd Protestor signed the consent for confirmation of the
Grant whilst the 1st Respondent declined to sign the same.
22. The Respondent explained that he did not include the 1st protestor as
one of those to benefit from a share of Mweiga Plot 110 because the Deceased had during his lifetime made a gift of Mweiga Plot 203 to the 1st Protestor. That Mweiga Plot 203 was a mutation which came from Mweiga Plot 110 which belonged to the Deceased.
23. The Respondent states that he has proposed the distribution in
accordance with the wishes of the Deceased. He stated that the
Deceased had during his lifetime apportioned to each of his sons the
land that was to be allocated to them. That the Deceased made no
allocation of land to his daughters. The Respondent alleges that the
2nd Protestor has merely been incited by the 1st Protestor and that her
claim over the estate is merely an afterthought. He states that the 2nd
Protestor occupies seventeen (17) acres of land in Kieni West.
24. DW2 Eunice Wambui and DW3 Winfred Wanjogu are both
daughters of the Deceased. Both stated that they had no interest in the
estate of their late father. In effect both waived their right to inherit.
25. DW4 Esther Wanjiru is a grand-child of the Deceased being the
daughter of Priscilla Wanjiru (now deceased) who was a daughter of
the Deceased. DW4 stated that neither she nor her siblings wish to
claim any share in the estate of the Deceased.
26. Upon conclusion of oral evidence the parties were invited to file and
exchange final submissions. The protestors filed the written
submissions dated 17th March 2025 whilst the Respondent relied
upon his written submissions dated 30th May 2025.
ANALYSIS AND DETERMINATION
27. I have carefully considered this summons for confirmation of Grant, the
two protests filed against that Summons, the evidence on record as well
as the written submissions filed by the parties.
28. The protestors have asked the court to dismiss the summons for
confirmation of Grant dated 1st March 2023 on grounds that no
provision was made for the two in the mode of distribution proposed in
that summons yet they are both children of the Deceased and therefore
beneficiaries to his estate.
29. The Respondent denies the allegation that he has in this summons
disinherited any of the rightful beneficiaries of the estate. Whilst
conceding that the 1st and 2nd protestors are not provided for in the
distribution of Mweiga Plot 110, the Respondent proceeded to explain
why this omission was justifiable in his eyes. With respect to the
exclusion of the 1st Protestor the Respondent states that he did not
include ‘Kanja’ as he had already inherited a parcel of land from the Deceased. The Respondent accuses the 1st Protestor of seeking to benefit from a double inheritance.
30. It is trite law that he who alleges must prove. In law the burden of
proof lies upon the party who asserts the existence of a fact or set of facts. Section 107 of the Evidence Act Cap 80 Laws of Kenya provide as follows:-
“Burden of Proof
107 (1) whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.
(2) When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person.”
31. In the case of EVANS NYAKWANA -VS- CLEOPHAS BWANA
ONGARO [2015] eKLR, it was held that:-
“As a general preposition the legal burden of proof lies upon the party who invokes the aid of law and substantially asserts the affirmative of the issue. That is the purport of Section 107 (1) of the Evidence Act Chapter 80 Laws of Kenya. Furthermore, the evidential burden is cast upon any party, the burden of proving any particular fact which he desires the court to believe in its existence. That is captured in Section 109 and 112 of the law of proof of that fact shall lie on any particular person…..” [Own emphasis]
32. The Respondent in his Further Supplementary Affidavit dated 25th
October 2023 sought to rely on a letter dated 24th March 2000
(Annexture ‘RKW’) written by the District Land Registrar Nyeri to the
Chief Land Registrar Nairobi. The letter states that Title No.
TETU/KABAGE/141 registered in the name of the Deceased
Wachira Koigu was to be exchanged with Parcel Nos 110, 203, 208
and 213 in Mweiga/Gakanga section which belonged to the
Government. That this letter amounted to proof that
Mweiga/Gakanga/203 originally belonged to the Deceased and was
later gifted to the 1st Protestor by the Deceased.
33. However it is pertinent to note that in the very same letter it is indicated
that “the transfer………could not be registered because the exercise has not been completed in full.” The author of the letter concludes thus” I will feed you with the status position on the ground once I visit the area with the complainant.”
34. Therefore it is clear that this exchange and transfer of Plot 203 to the
Deceased was yet to be concluded and registered. The Respondent
has not availed any further evidence to prove that said exchange and
transfer actually took place. No evidence was presented to court to
show that Plot 203 was ever at any time registered in the name of the
Deceased - thus no evidence was adduced to prove conclusively that
this Plot 203 ever in fact belonged to the Deceased.
35. Secondly although the 1st protestors claims to have acquired this Plot
203 way back in the year 1975 to date forty (40) down the line, he
still has no Title Document to the said property. There is also no
evidence of the transfer by way of gift of this property from the
committee to the 1st Protestor.
36. The Respondent contends that Plot 203 was gifted by the Deceased
during his lifetime to the 1st Protestor. However in the Replying Affidavit
dated 12th November 2021, the Respondent himself annexed a
certificate of Official Search dated 8th November 2021 in respect of Mweiga/Gakanga/203. That search reveals that as at November 2021 the said parcel of land was registered neither the Deceased or to the 1st Protestor but was in fact registered to the ‘Government of Kenya’.
37. By his allegation that the Deceased had during his lifetime made a gift
of Plot 203 to the 1st Protestor, the Respondent would be seeking to
rely on Section 42 of the Law of Succession Act which provides that
where an intestate had during his lifetime or by will paid, given or settled
any property for the benefit of one of his children that fact is to be taken
into account in determining the share of the net estate finally accruing
to said child. The Respondent is in effect alleging that the Deceased
made a ‘gift intervivos’ of this Plot 203 to the 1st Protestor. In order
for a ‘Gift Intervivos’ to be deemed valid and binding, there must be
sufficient evidence to prove that the donor had done all that was
necessary to have the gift perfected to facilitate the transfer of
said gift inter vivos to the donee.
38. In re Estate of The Late Gedion Manthi Nzioka (Deceased)
[2015] KEHC 944 (KLR) the Court stated that:-
“………..Gifts of land must be by way of registered transfer, or if the land is not registered it must be in writing or by a declaration of trust in writing. Gifts intervivos must be complete for the same to be valid. In this regard it is not necessary for the donee to give express acceptance, and acceptance of a gift is presumed until or unless dissent or disclaimer is signified by the donee. (Emphasis added).”
39. In Odunga’s Digest on Civil Case Law and Procedure Volume
III, Page 2417 at Paragraph 5484 it is stated as follows
“Generally speaking the moment in time when the gift
takes effect is dependent on the nature of the gift; the statutory provisions governing the steps taken by the donor to effectuate the gift. Equity will not come to the aid of volunteer and therefore, if a donee needs to get an order from a court of equity in order to complete his title, he will not get it. If, on the other hand, the donee has under his control everything necessary to constitute his title completely without any further assistance from the donor, the donee need no assistance from equity and the gift is complete. It is on that principle that in equity it held that a gift is complete as soon as the donor has done everything that the donor has to do that is to say as soon as the donee has within his control all those things necessary to enable him, complete his title. Where the donor has done all in his power according to the nature of the property given to vest the legal interest in the property in the donee, the gift will not fail even if something remains to be done by the donee or some third person. Likewise, a gift of registered land becomes effective upon execution and delivery of the transfer and cannot be recalled thereafter even though the donee has not yet been registered as a proprietor.” [Own emphasis]
40. The Respondent has not tendered any evidence to even suggest much
less prove that the ‘alleged gift’ of Plot 203 to the 1st Protestor was
ever initiated much less perfected by the Deceased during his
lifetime.
41. There are no transfer forms duly signed by the Deceased, no request
for Land Control Board Consent was ever made by the Deceased. All
the court has is a search showing that as late as November 2021,
Plot 203 was still registered to the Government of Kenya. No Title
Document or Green Card for this parcel of land produced by either of
the parties.
42. The Respondent claims that the 1st Protestor inherited the parcel of
land known as Tetu/Kabage/141, which belonged to the Deceased.
43. As evidence of the claim the Respondent has annexed to his further
supplementary affidavit dated 25th October 2023 a letter dated 24th
March 2000 (Annexture ‘RKW’). In that letter which was authored by
the District Land Registrar - Nyeri and addressed to the Chief Land
Registrar, it is stated that “Title Tetu/Kabage/141 in the name of
Phillip Wachira Koigu, “was to be exchanged with Parcel Nos.
110, 203, 208 and 213 in Mweiga/Gakanga Section”.
44. Therefore according to the Respondent this Plot 203 which was to have
been registered in the name of the Deceased was later gifted by the
Deceased during his lifetime to the 1st Protestor.
45. On his part the 1st protestor vehemently denies that Plot 203 was ever
gifted to him by the Deceased. The 1st Protestor asserts that Plot 203
is his own property which he acquired in the years 1974/1975. That
he was given the land by the Gakanga Land Exchange Committee
where he served as a cook. The 1st protestor insists that this Plot 203
never at any time belonged to the Deceased. Whilst he admits that he
does not have any Title document to Plot 203, the 1st Protestor
produces as proof of his claim to ownership of the parcel of land of
letter dated 2nd May 1990, which letter appears as Annexture ‘KWK
- 4’ to the 1st protestors further Affidavit dated 29th September
2023.
46. The said letter which is addressed to the land Registrar and is authored
by the District Officer confirms that Mweiga/Gakanga/203 belongs
to Wachira Koigu and that there is no objection to his being issued
with the Title to said parcel of land. That letter in no way confers ‘title’ or ‘ownership’ of Plot 203 to the 1st Protestor. It is merely a letter of ‘no objection’ to issuance of the Title.
47. The position, status and or ownership of Mweiga 203 is not very clear
at all. On the one hand you have the 1st Protestor claiming that
Mweiga/Gakanga/203 belongs to him and was never at any time
owned by the Deceased. On the other hand you have the Respondent
claiming that the said parcel of land initially belonged to the Deceased
who in turn gifted it to the 1st Protestor during his lifetime, what is the
correct position? This court is unable to tell.
48. I find that neither the 1st Protestor nor the Respondent has proved their
allegations in respect of Mweiga/Gakanga/203. In order to
determine the true ownership of this property the parties will have to
seek a declaration from the Environment and Land Court, which is
the only court mandated by Article 162(2) (b) of the Constitution
of Kenya 2010 to determine issues relating to the ownership, use and
occupation of land. This court sitting as a probate court has no
jurisdiction to delve into those issues.
49. In RE ESTATE OF ATIBU ORONJE ASIOMA (Deceased) [2022]
KEHC Hon. Justice William Musyoka held as follows:-
“The Probate Court only distributed assets that were undisputedly owned by the Deceased. Assets that were encumbered or the subject of ownership disputes were not undisputedly owned by the Deceased and were not available for distribution by the court until the encumbrances were removed or the ownership disputes resolved. Property available for distribution was deferred in section 3 of the Law of Succession Act as the free property of the Deceased.”
50. For the avoidance of doubt this court finds that the property known as
LR Mweiga/Gakanga/203 was not registered in the name of the
Deceased at the time of his death, nor was any evidence adduced to
show that this parcel of land was ever registered in the name of the
Deceased. Therefore Plot 203 does not form part of the estate of
the Deceased and cannot be taken into account in distribution of the
estate to the beneficiaries. Similarly I reject the claim by the
Respondent that the 1st Protestor had been gifted a piece of land
by the Deceased during his lifetime. The threshold for the application
of Section 42 relating to gifts inter vivos has not been met. Based on
this finding it is clear that the 1st Protestor being a genuine beneficiary
was unjustifiably excluded from the distribution of the estate of the
Deceased.
51. Regarding the 2nd Protestor, it is alleged and indeed the 2nd Protestor
readily concedes that she signed the consent to confirmation of Grant.
In so doing the 2nd Protestor indicated her agreement to the mode of
distribution proposed therein. However the 2nd Protestor now states
that she did not understand the document she was signing or its
implications.
52. The 2nd Protestor is an 87 year old lady. It would have been prudent
to have the summons explained to her as well as the implications of the
consent which she was signing. To the extent that this was not done
her signature on the consent can be questioned.
53. In his evidence the Respondent admits that he made no allocation out
of the estate to the daughters of the Deceased. The Respondent
explains that he was merely following the wishes of his late father who
distributed his land to his seven (7) sons only and not to the
daughters. The Respondent also argues that the 2nd Respondent already
has possession of 17 acres of land in Kieni West.
54. Firstly the fact that the 2nd Protestor may have seventeen (17) acres
of land estate elsewhere does not exclude her from inheriting a share of
her father’s estate.
55. In the RE ESTATE OF M’ IRINGO KIRIGIA (Deceased) [2017]
eKLR the High Court stated that;-
“……From his arguments, it is clear the objector is suggesting that the protestor is not entitled to a share of the Estate because she is a woman and more so a married woman. Such arguments are, to say the least are a worn out motion and do not have any place in modern day society. It is also vehemently frowned upon by the constitution of Kenya 2010 as well as the Law of Succession Act. See eminent literary work by W. M. Musyoka Law of Succession at Page 118 in relation to reference to children in the Law of Succession Act that;-
“Non discrimination of daughters
Reference to children does not distinguish between sons and daughters, neither is there distinction between married and un married daughters.”[Own emphasis]
56. Similarly in RE ESTATE OF SOLOMON NGATIA KARIUKI
(Deceased) [2008] eKLR Hon. Justice Makhandia (as he then
was) rendered himself interalia thus:-
“The law of succession Act does not discriminate between the female and male children or married or unmarried daughters of the Deceased person. When it comes to the children of the deceased are entitled stake a claim to the deceased’s estate. In seeking to disinherit the protestor under the guise that the protestor was married, her father, brothers and sisters were invoking an old Kikuyu customary law. Like most other customary laws in this country they are always biased against women and indeed they tend to bar married daughters from inheriting their father’s estate. The justification for this rather archaic and primitive customary law demand appears to be that such married daughters should forgo their father’s inheritance because they are likely to enjoy inheritance of their husband’s side of the family.” [Own emphasis]
57. Finally on this point in RE ESTATE OF ELIZABETH WANJIKU MUNGE
(Deceased) 2015 eKLR the court rendered itself as follows;-
“The provisions of Part V of the Act refer to “child” or “children”. They make no distinction as between sons and daughters or male and female children. No distinction is made on their marital status. The effect of this is that the estate ought to be shared equally among all the children of the deceased without considering their gender or their marital status. It should be shared equally between the sons and daughters, where reference to daughters includes those that are married. This is the position so long as the deceased died after 1st July 1981 and the Law of Succession Act applied to the estate.” [ Own emphasis]
58. Article 27(3) of the Constitution of Kenya outlaws any form of
discrimination on the basis of gender. Section 38 of the Law of
Succession Act is clear on equal distribution of the net estate to all the
surviving children of the Deceased. Likewise Section 38 of the same
Act enshrines the principle of equal distribution of the net estate to the
surviving children of the deceased irrespective of gender and whether
married and comfortable in their marriage or unmarried. The law of
succession Act provides that all children of the Deceased with the
exception of those who have specifically waived their right to inheritance
are entitled to a share of the estate. The Deceased did not leave any
written will dictating that none of his daughters was to benefit from his
estate.
59. I do note that DW2, DW3 both daughters of the Deceased as well as
DW4 who is a granddaughter of the Deceased have stated in court that
they have no interest in inheriting from the estate. That is all well and
good and is in fact their right. No beneficiary can be compelled to
partake of a share of the estate against their will.
60. However again it would have been prudent to have those who wish to
waive their right to inherit do so in writing especially where like in the
current case the estate is contested. In RE ESTATE OF SIMON
IKANDI GITUNGA (Deceased) Succession Cause No. 5 of 1995,
the court stated that
“Concerning renunciation of right to inheritance, it should be noted that a beneficiary under a will or a survivor in intestacy cannot be compelled to take a share in the estate against their wish. In other words, it is not mandatory that a beneficiary take his bequest or legacy under the will of the deceased or that a survivor in intestacy takes the share allotted to them. In both cases, there is liberty to renounce or disclaim the right to the share. The usual practice is for such beneficiary or survivor or heir to file a Deed or instrument of renunciation disclaiming such right …………….”
61. The protestors have complained that at no time did the family members
hold a meeting to discuss and agree on the mode of distribution of the
estate. Under cross-examination the Respondent admits that
“I did not call for a meeting of all the beneficiaries before I filed the summons for confirmation…………..”
62. One wonders then how the Respondent came up with a mode of
distribution if he did not bother to discuss the issue with his siblings.
The appointment of the Respondent as an administrator did not bestow
upon him the mandate to dictate terms to all the other beneficiaries.
As an administrator the duty of the Respondent was to act in the best
interests of the estate and all the beneficiaries. How can the Respondent
claim to be acting in the best interests of the beneficiaries when he has
not even bothered to sit down with said beneficiaries to get their views
on how the estate ought to be distributed.
63. The Respondent failed in his responsibility. To the extent that he failed
to consult and take into account the views of the other beneficiaries
regarding the distribution of the estate then the mode of distribution
proposed therein cannot be upheld by the court.
64. It is common ground that the initial Grant which was confirmed on 3rd
February 2012 was revoked. A look at the mode of distribution in
that revoked grant reveals that it largely mirrors the mode of distributed
proposed by the Respondent in this summons. Indeed under cross-
examination the Respondent admits that
“The new mode of distribution is similar to the one in the revoked grant. I have not included Kanja as he had already inherited a parcel of land from the Deceased.”
65. It smacks of mischief not to mention being an abuse of court
process for the Respondent to file a new summons containing a similar
mode of distribution as that contained in a grant which had already
been revoked by the court.
66. Finally I find merit in the two protests dated 17th April 2023 and 3rd
October 2023. The mode of distribution proposed in the summons for
confirmation of Grant is in my view discriminatory as some of the
beneficiaries have been unjustifiably excluded. I therefore dismiss the
summons for confirmation of Grant dated 1st March 2023 and make
the following orders;-
(i) The Respondent/Administrator is directed to hold meetings with all the beneficiaries to enable them give input on the mode of distribution of the estate.
(ii) The Respondent to file within ninety (90) days a fresh summons for confirmation of grant to be considered by the court.
(iii) Any benefi
[...truncated]
IN THE MATTER OF THE ESTATE OF PHILIP WACHIRA KOIGU ALIAS WACHIRA KOIGU (DECEASED)
KANJA WACHIRA KOIGU………………………….…..1ST PROTESTOR
GRACE WAMBUI NDUNGU………………….………..2ND PROTESTOR
-VERSUS-
RONALD KAHARU WACHIRA….RESPONDENT/ADMINISTRATOR
JUDGEMENT
1. Before this Court for determination is the Affidavit of Protest Against
Confirmation of Grant dated 17th April 2023 filed by KANJA
WACHIRA KOIGU (hereinafter referred to as ‘the Protestor”).
2. A second Affidavit of Protest dated 3rd October 2023 was filed by
GRACE WAMBUI NDUNGU (hereinafter referred to as ‘the 2nd
Protestor’)
3. The Respondent/Administrator RONALD KAHARU WACHIRA opposed
the protests.
BACKGROUND
4. This succession cause relates to the estate of the late PHILIP WACHIRA
KOIGU (hereinafter ‘the Deceased’) who died intestate on 29th May
1991. A copy of the Death certificate serial No. 386045 was filed in
court on 28th September 2009.
5. The Deceased was survived by the following children;-
(a) Douglas Ndegwa Wachira
(b) Johnson Macharia Wachira
(c) Henry Gichohi Wachira - (Deceased)
(d) Michael Wagura Wachira
(e) Harun Wambugu Wachira
(f) Grace Wambui Wachira
(g) Pricilla Wanjira Wanjau - (Deceased)
(h) Monica Wangari Mwangi
(i) Eunice Wambui Waweru
(j) Winfred Wanjugu Njoroge
(k) Thomas Kanja Wachira
(l) Samuel Kaharu Wachira - (Deceased)
(m) Ronald Kaharu Wachira
(6) The estate of the Deceased comprised the following assets;-
(i) Parcel of Land known as MWEIGA/GAKANGA/110 - measuring
7.4 Hectares.
(ii) Parcel of land known as NYANDARUA/NDARAGWA/BLOCK 1
(KAHUTHA) 88
(7) Following the demise of the Deceased Grant of Letters of Administration
was on 1st April 2010 made to the Respondent Ronald Kaharu
Wachira and Samuel Kaharu Wachira (now Deceased). The Grant
was duly confirmed on 3rd February 2012.
(8) The 1st Protestor herein Kanja Wachira Koigu then filed a Summons
for revocation of Grant dated 24th November 2021 on grounds that
the Grant was obtained fraudulently by making of false statements. The
1st Protestor further alleged that he had been left out of the distribution
of the property. The 1st Protestor categorically denied that he has ever
held the name ‘Thomas’ as was stated in the grant.
(9) Vide a Ruling delivered on 19th October 2022, Hon. Justice Njagi
(retired) allowed the Summons for revocation of Grant and in doing so
made the following orders:-
“(a) The grant of letters of administration intestate to
the estate of Philip Wachira Koigu granted to the
late Samuel Kaharu Wachira and Ronald Kaharu
Wachira on 1/4/2010 and confirmed on 3/2/2012
in this matter is revoked.
(b) The sub-division and registration of land parcel
Mweiga/Gakanja/110 into land parcels Mweiga/Gakanja/
283,284, 285,286, 287, 288 and 289 is hereby cancelled.
(c) The Land Registrar Nyeri is hereby ordered to
rectify the register by cancelling title Nos. Mweiga/Gakanja/283, 284, 285, 286, 287, 288 and 289 and the titles to the said parcels of land are hereby ordered to revert to the original number; Mweiga/Gakanja/110 in the name of the deceased herein, Philip Wachira Koigu, for purposes of distribution of the deceased’s beneficiaries.
(d) A fresh grant of letters of administration is to issue
to the respondent herein, Ronald Kaharu Wachira.”
10. Following this ruling a fresh Grant was issued to the Respondent on 19th
October 2022. The Respondent then filed a summons for confirmation
of Grant dated 1st March 2023. In that Summons the Respondent
proposed that the estate be distributed as follows;-
“(a) MWEIGA/GAKANGA/110 to be shared as follows:-
(1) SAMUEL KAHARU WACHIRA (DCD) - 1.4 acres
(2) HARUN WAMBUGU WACHIRA - 2.42 acres
(3) RONALD KAHARU WACHIRA - 2.54 acres
(4) DOUGLAS NDEGWA WACHIRA - 2.75 acres
(5) HENRY GICHOHI WACHIRA (DCD) - 2.75 acres
(6) JOHSON MACHARIA WACHIRA - 2.67 acres
(7) MICHAEL WAGURA WACHIRA - 3.13 acres”
11. The two Protestors being dissatisfied with the mode of distribution
proposed by the Respondent filed the aforementioned Affidavits of
Protest. The matter was canvassed by way of oral evidence in open
court.
THE EVIDENCE
12. The 1st Protestor Kanja Wachira Koigu stated that he had declined to
sign the consent to confirmation of the Grant as the question of how
the estate was to be distributed had not been discussed or agreed upon
by the family.
13. The 1st protestor took great umbrage at the Respondents insistence
of referring to him by the name ‘Thomas’ He annexed a copy of this
National Identity Card No. 5491231 which gives his names as KANJA
WACHIRA KOIGU (Annexture ‘KWK 3’) to the Affidavit of protest
dated 17th April 2023.
14. The 1st Protestor complained that he had been excluded from the list of
persons who were to benefit from the estate. The 1st Protestor denied
the allegation that the Deceased had during his lifetime gifted to him
the parcel of land known as MWEIGA/GAKANGA/203.
15. According to the 1st Protestor the mode of distribution proposed by the
Respondents was discriminatory as some of the Deceased’s children i.e
himself and all the daughters of the Deceased have unjustifiably been
excluded. His position was that the estate ought to be distributed
among all beneficiaries paying no regard to their gender. The 1st
Protestor stated that the mode of distribution proposed in the summons
for Confirmation of Grant dated 1st March 2023 is a replica of the
proposed mode of distribution in the confirmed Grant dated 3rd
February 2012 which Grant had been revoked by the court. He
proposes that the parcel of land known as Mweiga/Gachanga/110 be
distributed equally amongst all the children of the Deceased save for
those who have waived any right to inherit from the estate.
16. The 2nd Protestor Grace Wambui Ndung’u stated that she was the
eldest child of the Deceased and is currently aged 87 years. She
admits to having signed the consent to confirmation of the Grant but
states that she did not clearly understand the contents of the document
she was signing.
17. Further the 2nd, Protestor avers that she did not sign the consent before
any advocate but stated that the document was brought to her home
in Rurie - Nairutia which is almost 50 Kilometers away from Nyeri
Town and that is where she signed the document.
18. The 2nd Protestor states that she has not waived her right to inherit from
her father’s estate and was not aware that the confirmed grant
effectively disinherited her. She reiterates her belief that all children
are equal under the law and asserts that as a daughter of the Deceased
she is entitled to a share of his estate.
19. The 2nd Protestor states that at no time did the family ever meet to
discuss the mode of distribution and at no time did she ever agree to
the mode of distribution proposed in the summons for confirmation of
Grant. She confirms that Mweiga Plot 203 belongs to the 1st
Protestor and never at any time belonged to the Deceased. The 2nd
Protestor proposes that the property known as Mweiga/Gakanga/
110 be divided equally amongst all the beneficiaries.
20. The Respondent Ronald Kaharu Wachira confirms that he is the
Administrator of the estate of the Deceased having been issued
with letters of Grant of Administration on 19th October 2022. The
Respondent confirms that he filed the Summons for confirmation of
Grant dated 1st March 2023 in which he set out the proposed mode
of distribution of the estate.
21. The Respondent stated that the two protestors were his siblings. He
states that the 2nd Protestor signed the consent for confirmation of the
Grant whilst the 1st Respondent declined to sign the same.
22. The Respondent explained that he did not include the 1st protestor as
one of those to benefit from a share of Mweiga Plot 110 because the Deceased had during his lifetime made a gift of Mweiga Plot 203 to the 1st Protestor. That Mweiga Plot 203 was a mutation which came from Mweiga Plot 110 which belonged to the Deceased.
23. The Respondent states that he has proposed the distribution in
accordance with the wishes of the Deceased. He stated that the
Deceased had during his lifetime apportioned to each of his sons the
land that was to be allocated to them. That the Deceased made no
allocation of land to his daughters. The Respondent alleges that the
2nd Protestor has merely been incited by the 1st Protestor and that her
claim over the estate is merely an afterthought. He states that the 2nd
Protestor occupies seventeen (17) acres of land in Kieni West.
24. DW2 Eunice Wambui and DW3 Winfred Wanjogu are both
daughters of the Deceased. Both stated that they had no interest in the
estate of their late father. In effect both waived their right to inherit.
25. DW4 Esther Wanjiru is a grand-child of the Deceased being the
daughter of Priscilla Wanjiru (now deceased) who was a daughter of
the Deceased. DW4 stated that neither she nor her siblings wish to
claim any share in the estate of the Deceased.
26. Upon conclusion of oral evidence the parties were invited to file and
exchange final submissions. The protestors filed the written
submissions dated 17th March 2025 whilst the Respondent relied
upon his written submissions dated 30th May 2025.
ANALYSIS AND DETERMINATION
27. I have carefully considered this summons for confirmation of Grant, the
two protests filed against that Summons, the evidence on record as well
as the written submissions filed by the parties.
28. The protestors have asked the court to dismiss the summons for
confirmation of Grant dated 1st March 2023 on grounds that no
provision was made for the two in the mode of distribution proposed in
that summons yet they are both children of the Deceased and therefore
beneficiaries to his estate.
29. The Respondent denies the allegation that he has in this summons
disinherited any of the rightful beneficiaries of the estate. Whilst
conceding that the 1st and 2nd protestors are not provided for in the
distribution of Mweiga Plot 110, the Respondent proceeded to explain
why this omission was justifiable in his eyes. With respect to the
exclusion of the 1st Protestor the Respondent states that he did not
include ‘Kanja’ as he had already inherited a parcel of land from the Deceased. The Respondent accuses the 1st Protestor of seeking to benefit from a double inheritance.
30. It is trite law that he who alleges must prove. In law the burden of
proof lies upon the party who asserts the existence of a fact or set of facts. Section 107 of the Evidence Act Cap 80 Laws of Kenya provide as follows:-
“Burden of Proof
107 (1) whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.
(2) When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person.”
31. In the case of EVANS NYAKWANA -VS- CLEOPHAS BWANA
ONGARO [2015] eKLR, it was held that:-
“As a general preposition the legal burden of proof lies upon the party who invokes the aid of law and substantially asserts the affirmative of the issue. That is the purport of Section 107 (1) of the Evidence Act Chapter 80 Laws of Kenya. Furthermore, the evidential burden is cast upon any party, the burden of proving any particular fact which he desires the court to believe in its existence. That is captured in Section 109 and 112 of the law of proof of that fact shall lie on any particular person…..” [Own emphasis]
32. The Respondent in his Further Supplementary Affidavit dated 25th
October 2023 sought to rely on a letter dated 24th March 2000
(Annexture ‘RKW’) written by the District Land Registrar Nyeri to the
Chief Land Registrar Nairobi. The letter states that Title No.
TETU/KABAGE/141 registered in the name of the Deceased
Wachira Koigu was to be exchanged with Parcel Nos 110, 203, 208
and 213 in Mweiga/Gakanga section which belonged to the
Government. That this letter amounted to proof that
Mweiga/Gakanga/203 originally belonged to the Deceased and was
later gifted to the 1st Protestor by the Deceased.
33. However it is pertinent to note that in the very same letter it is indicated
that “the transfer………could not be registered because the exercise has not been completed in full.” The author of the letter concludes thus” I will feed you with the status position on the ground once I visit the area with the complainant.”
34. Therefore it is clear that this exchange and transfer of Plot 203 to the
Deceased was yet to be concluded and registered. The Respondent
has not availed any further evidence to prove that said exchange and
transfer actually took place. No evidence was presented to court to
show that Plot 203 was ever at any time registered in the name of the
Deceased - thus no evidence was adduced to prove conclusively that
this Plot 203 ever in fact belonged to the Deceased.
35. Secondly although the 1st protestors claims to have acquired this Plot
203 way back in the year 1975 to date forty (40) down the line, he
still has no Title Document to the said property. There is also no
evidence of the transfer by way of gift of this property from the
committee to the 1st Protestor.
36. The Respondent contends that Plot 203 was gifted by the Deceased
during his lifetime to the 1st Protestor. However in the Replying Affidavit
dated 12th November 2021, the Respondent himself annexed a
certificate of Official Search dated 8th November 2021 in respect of Mweiga/Gakanga/203. That search reveals that as at November 2021 the said parcel of land was registered neither the Deceased or to the 1st Protestor but was in fact registered to the ‘Government of Kenya’.
37. By his allegation that the Deceased had during his lifetime made a gift
of Plot 203 to the 1st Protestor, the Respondent would be seeking to
rely on Section 42 of the Law of Succession Act which provides that
where an intestate had during his lifetime or by will paid, given or settled
any property for the benefit of one of his children that fact is to be taken
into account in determining the share of the net estate finally accruing
to said child. The Respondent is in effect alleging that the Deceased
made a ‘gift intervivos’ of this Plot 203 to the 1st Protestor. In order
for a ‘Gift Intervivos’ to be deemed valid and binding, there must be
sufficient evidence to prove that the donor had done all that was
necessary to have the gift perfected to facilitate the transfer of
said gift inter vivos to the donee.
38. In re Estate of The Late Gedion Manthi Nzioka (Deceased)
[2015] KEHC 944 (KLR) the Court stated that:-
“………..Gifts of land must be by way of registered transfer, or if the land is not registered it must be in writing or by a declaration of trust in writing. Gifts intervivos must be complete for the same to be valid. In this regard it is not necessary for the donee to give express acceptance, and acceptance of a gift is presumed until or unless dissent or disclaimer is signified by the donee. (Emphasis added).”
39. In Odunga’s Digest on Civil Case Law and Procedure Volume
III, Page 2417 at Paragraph 5484 it is stated as follows
“Generally speaking the moment in time when the gift
takes effect is dependent on the nature of the gift; the statutory provisions governing the steps taken by the donor to effectuate the gift. Equity will not come to the aid of volunteer and therefore, if a donee needs to get an order from a court of equity in order to complete his title, he will not get it. If, on the other hand, the donee has under his control everything necessary to constitute his title completely without any further assistance from the donor, the donee need no assistance from equity and the gift is complete. It is on that principle that in equity it held that a gift is complete as soon as the donor has done everything that the donor has to do that is to say as soon as the donee has within his control all those things necessary to enable him, complete his title. Where the donor has done all in his power according to the nature of the property given to vest the legal interest in the property in the donee, the gift will not fail even if something remains to be done by the donee or some third person. Likewise, a gift of registered land becomes effective upon execution and delivery of the transfer and cannot be recalled thereafter even though the donee has not yet been registered as a proprietor.” [Own emphasis]
40. The Respondent has not tendered any evidence to even suggest much
less prove that the ‘alleged gift’ of Plot 203 to the 1st Protestor was
ever initiated much less perfected by the Deceased during his
lifetime.
41. There are no transfer forms duly signed by the Deceased, no request
for Land Control Board Consent was ever made by the Deceased. All
the court has is a search showing that as late as November 2021,
Plot 203 was still registered to the Government of Kenya. No Title
Document or Green Card for this parcel of land produced by either of
the parties.
42. The Respondent claims that the 1st Protestor inherited the parcel of
land known as Tetu/Kabage/141, which belonged to the Deceased.
43. As evidence of the claim the Respondent has annexed to his further
supplementary affidavit dated 25th October 2023 a letter dated 24th
March 2000 (Annexture ‘RKW’). In that letter which was authored by
the District Land Registrar - Nyeri and addressed to the Chief Land
Registrar, it is stated that “Title Tetu/Kabage/141 in the name of
Phillip Wachira Koigu, “was to be exchanged with Parcel Nos.
110, 203, 208 and 213 in Mweiga/Gakanga Section”.
44. Therefore according to the Respondent this Plot 203 which was to have
been registered in the name of the Deceased was later gifted by the
Deceased during his lifetime to the 1st Protestor.
45. On his part the 1st protestor vehemently denies that Plot 203 was ever
gifted to him by the Deceased. The 1st Protestor asserts that Plot 203
is his own property which he acquired in the years 1974/1975. That
he was given the land by the Gakanga Land Exchange Committee
where he served as a cook. The 1st protestor insists that this Plot 203
never at any time belonged to the Deceased. Whilst he admits that he
does not have any Title document to Plot 203, the 1st Protestor
produces as proof of his claim to ownership of the parcel of land of
letter dated 2nd May 1990, which letter appears as Annexture ‘KWK
- 4’ to the 1st protestors further Affidavit dated 29th September
2023.
46. The said letter which is addressed to the land Registrar and is authored
by the District Officer confirms that Mweiga/Gakanga/203 belongs
to Wachira Koigu and that there is no objection to his being issued
with the Title to said parcel of land. That letter in no way confers ‘title’ or ‘ownership’ of Plot 203 to the 1st Protestor. It is merely a letter of ‘no objection’ to issuance of the Title.
47. The position, status and or ownership of Mweiga 203 is not very clear
at all. On the one hand you have the 1st Protestor claiming that
Mweiga/Gakanga/203 belongs to him and was never at any time
owned by the Deceased. On the other hand you have the Respondent
claiming that the said parcel of land initially belonged to the Deceased
who in turn gifted it to the 1st Protestor during his lifetime, what is the
correct position? This court is unable to tell.
48. I find that neither the 1st Protestor nor the Respondent has proved their
allegations in respect of Mweiga/Gakanga/203. In order to
determine the true ownership of this property the parties will have to
seek a declaration from the Environment and Land Court, which is
the only court mandated by Article 162(2) (b) of the Constitution
of Kenya 2010 to determine issues relating to the ownership, use and
occupation of land. This court sitting as a probate court has no
jurisdiction to delve into those issues.
49. In RE ESTATE OF ATIBU ORONJE ASIOMA (Deceased) [2022]
KEHC Hon. Justice William Musyoka held as follows:-
“The Probate Court only distributed assets that were undisputedly owned by the Deceased. Assets that were encumbered or the subject of ownership disputes were not undisputedly owned by the Deceased and were not available for distribution by the court until the encumbrances were removed or the ownership disputes resolved. Property available for distribution was deferred in section 3 of the Law of Succession Act as the free property of the Deceased.”
50. For the avoidance of doubt this court finds that the property known as
LR Mweiga/Gakanga/203 was not registered in the name of the
Deceased at the time of his death, nor was any evidence adduced to
show that this parcel of land was ever registered in the name of the
Deceased. Therefore Plot 203 does not form part of the estate of
the Deceased and cannot be taken into account in distribution of the
estate to the beneficiaries. Similarly I reject the claim by the
Respondent that the 1st Protestor had been gifted a piece of land
by the Deceased during his lifetime. The threshold for the application
of Section 42 relating to gifts inter vivos has not been met. Based on
this finding it is clear that the 1st Protestor being a genuine beneficiary
was unjustifiably excluded from the distribution of the estate of the
Deceased.
51. Regarding the 2nd Protestor, it is alleged and indeed the 2nd Protestor
readily concedes that she signed the consent to confirmation of Grant.
In so doing the 2nd Protestor indicated her agreement to the mode of
distribution proposed therein. However the 2nd Protestor now states
that she did not understand the document she was signing or its
implications.
52. The 2nd Protestor is an 87 year old lady. It would have been prudent
to have the summons explained to her as well as the implications of the
consent which she was signing. To the extent that this was not done
her signature on the consent can be questioned.
53. In his evidence the Respondent admits that he made no allocation out
of the estate to the daughters of the Deceased. The Respondent
explains that he was merely following the wishes of his late father who
distributed his land to his seven (7) sons only and not to the
daughters. The Respondent also argues that the 2nd Respondent already
has possession of 17 acres of land in Kieni West.
54. Firstly the fact that the 2nd Protestor may have seventeen (17) acres
of land estate elsewhere does not exclude her from inheriting a share of
her father’s estate.
55. In the RE ESTATE OF M’ IRINGO KIRIGIA (Deceased) [2017]
eKLR the High Court stated that;-
“……From his arguments, it is clear the objector is suggesting that the protestor is not entitled to a share of the Estate because she is a woman and more so a married woman. Such arguments are, to say the least are a worn out motion and do not have any place in modern day society. It is also vehemently frowned upon by the constitution of Kenya 2010 as well as the Law of Succession Act. See eminent literary work by W. M. Musyoka Law of Succession at Page 118 in relation to reference to children in the Law of Succession Act that;-
“Non discrimination of daughters
Reference to children does not distinguish between sons and daughters, neither is there distinction between married and un married daughters.”[Own emphasis]
56. Similarly in RE ESTATE OF SOLOMON NGATIA KARIUKI
(Deceased) [2008] eKLR Hon. Justice Makhandia (as he then
was) rendered himself interalia thus:-
“The law of succession Act does not discriminate between the female and male children or married or unmarried daughters of the Deceased person. When it comes to the children of the deceased are entitled stake a claim to the deceased’s estate. In seeking to disinherit the protestor under the guise that the protestor was married, her father, brothers and sisters were invoking an old Kikuyu customary law. Like most other customary laws in this country they are always biased against women and indeed they tend to bar married daughters from inheriting their father’s estate. The justification for this rather archaic and primitive customary law demand appears to be that such married daughters should forgo their father’s inheritance because they are likely to enjoy inheritance of their husband’s side of the family.” [Own emphasis]
57. Finally on this point in RE ESTATE OF ELIZABETH WANJIKU MUNGE
(Deceased) 2015 eKLR the court rendered itself as follows;-
“The provisions of Part V of the Act refer to “child” or “children”. They make no distinction as between sons and daughters or male and female children. No distinction is made on their marital status. The effect of this is that the estate ought to be shared equally among all the children of the deceased without considering their gender or their marital status. It should be shared equally between the sons and daughters, where reference to daughters includes those that are married. This is the position so long as the deceased died after 1st July 1981 and the Law of Succession Act applied to the estate.” [ Own emphasis]
58. Article 27(3) of the Constitution of Kenya outlaws any form of
discrimination on the basis of gender. Section 38 of the Law of
Succession Act is clear on equal distribution of the net estate to all the
surviving children of the Deceased. Likewise Section 38 of the same
Act enshrines the principle of equal distribution of the net estate to the
surviving children of the deceased irrespective of gender and whether
married and comfortable in their marriage or unmarried. The law of
succession Act provides that all children of the Deceased with the
exception of those who have specifically waived their right to inheritance
are entitled to a share of the estate. The Deceased did not leave any
written will dictating that none of his daughters was to benefit from his
estate.
59. I do note that DW2, DW3 both daughters of the Deceased as well as
DW4 who is a granddaughter of the Deceased have stated in court that
they have no interest in inheriting from the estate. That is all well and
good and is in fact their right. No beneficiary can be compelled to
partake of a share of the estate against their will.
60. However again it would have been prudent to have those who wish to
waive their right to inherit do so in writing especially where like in the
current case the estate is contested. In RE ESTATE OF SIMON
IKANDI GITUNGA (Deceased) Succession Cause No. 5 of 1995,
the court stated that
“Concerning renunciation of right to inheritance, it should be noted that a beneficiary under a will or a survivor in intestacy cannot be compelled to take a share in the estate against their wish. In other words, it is not mandatory that a beneficiary take his bequest or legacy under the will of the deceased or that a survivor in intestacy takes the share allotted to them. In both cases, there is liberty to renounce or disclaim the right to the share. The usual practice is for such beneficiary or survivor or heir to file a Deed or instrument of renunciation disclaiming such right …………….”
61. The protestors have complained that at no time did the family members
hold a meeting to discuss and agree on the mode of distribution of the
estate. Under cross-examination the Respondent admits that
“I did not call for a meeting of all the beneficiaries before I filed the summons for confirmation…………..”
62. One wonders then how the Respondent came up with a mode of
distribution if he did not bother to discuss the issue with his siblings.
The appointment of the Respondent as an administrator did not bestow
upon him the mandate to dictate terms to all the other beneficiaries.
As an administrator the duty of the Respondent was to act in the best
interests of the estate and all the beneficiaries. How can the Respondent
claim to be acting in the best interests of the beneficiaries when he has
not even bothered to sit down with said beneficiaries to get their views
on how the estate ought to be distributed.
63. The Respondent failed in his responsibility. To the extent that he failed
to consult and take into account the views of the other beneficiaries
regarding the distribution of the estate then the mode of distribution
proposed therein cannot be upheld by the court.
64. It is common ground that the initial Grant which was confirmed on 3rd
February 2012 was revoked. A look at the mode of distribution in
that revoked grant reveals that it largely mirrors the mode of distributed
proposed by the Respondent in this summons. Indeed under cross-
examination the Respondent admits that
“The new mode of distribution is similar to the one in the revoked grant. I have not included Kanja as he had already inherited a parcel of land from the Deceased.”
65. It smacks of mischief not to mention being an abuse of court
process for the Respondent to file a new summons containing a similar
mode of distribution as that contained in a grant which had already
been revoked by the court.
66. Finally I find merit in the two protests dated 17th April 2023 and 3rd
October 2023. The mode of distribution proposed in the summons for
confirmation of Grant is in my view discriminatory as some of the
beneficiaries have been unjustifiably excluded. I therefore dismiss the
summons for confirmation of Grant dated 1st March 2023 and make
the following orders;-
(i) The Respondent/Administrator is directed to hold meetings with all the beneficiaries to enable them give input on the mode of distribution of the estate.
(ii) The Respondent to file within ninety (90) days a fresh summons for confirmation of grant to be considered by the court.
(iii) Any benefi
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