HIGH COURT SUCCESSION CAUSE NO. 284 OF 1996
IN THE MATTER OF THE ESTATE OF SAMUEL WAHOME GATHERU (DECEASED)
WACHIURI WAHOME………………………..……...…..PROTESTOR
JUDGEMENT
1. Before this court for determination is the Affidavit of Protest to confirmation of Grant dated 12 th June 2023 filed by WACHIURI WAHOME (hereinafter the Protestor).
BACKGROUND
2. This succession cause relates to the estate of the late SAMUEL WAHOME GATHERU who died intestate on 1 st January 1994 . A copy of the Death Certificate Serial No. 295287 is in the Court file. The Deceased was survived by a widow REBECCA MUTHONI (who later passed away on 20 th July 2008 ) and ten (10) children. One of the sons of the Deceased JOHN NDURA WAHOME also passed away on leaving behind no family.
3. In the Petition for Grant of letters of administration Intestate the estate of the Deceased was said to comprise of the following assets;-
(i) Property known as LR KIRIMUKUYU/KIRIA/17 - 9.7 Acres
(ii) Property known as LR KIRIMUKUYU/KIRIA/68 - 1.4 Acres
(iii) Property known as LR KAGARI/KANJA/1863 - 7.0 Acres
(iv) Property known as LR GATHURI/GITHIMU/1583 - 0.15 Hectares (40 x 80)
(v) Plot No. 1 NGURUMO
4. Following the demise of the Deceased Grant of Letters of Administration were on 20 th December 2022 issued to the widow Rebecca Muthoni Wahome . After the demise of the said widow the Grant was issued jointly to FESTUS GATHERU WAHOME, GLADYS WANGUI WAHOME and WACHIURI WAHOME . There has been protracted litigation over this estate. Indeed during the hearing some of the beneficiaries expressed frustration over the fact that this matter remains unconcluded almost thirty (30) years after the death of the Deceased.
5. On 13 th January 2023 the Respondents herein filed a Summons for Confirmation of Grant seeking that the Grant issued to them be confirmed. They proposed that the net estate be distributed in the following manner;-
SCHEDULE OF DISTRIBUTION OF ASSETS
DESCRIPTION
OF PROPERTY
NAME OF HEIR
SHARE (Acres)
1.
KIRIMUKUYU/KIRIA/17
FESTUS GATHERU WAHOME
ALICE WANJIRA WAHOME,
WACHIURI WAHOME,
JACKSON KINYORI WAHOME,
REGINA WANJA WAHOME,
GLADYS WANGUI WAHOME,
JOHN NDURA WAHOME,
SAMUEL WAHOME
WAITHIEGENI
1.14
1.14
1.14
1.14
1.14
1.14
1.14
1.14
PATRICK MBOGO WAHOME
0.61
2.
KIRIMUKUYU/KIRIA/68
PATRICK MBOGO WAHOME
Whole Share
3.
KAGAARI/KANJA/1863
FESTUS GATHERU WAHOME,
ALICE WANJIRA NJOROGE,
WACHIURI WAHOME,
JACKSON KINYORI WAHOME,
REGINA WANJA WAHOME,
GLADYS WANGUI WAHOME,
JOHN NDURA WAHOME,
SAMUEL WAHOME
WAITHIEGENI
0.88
0.88
0.88
0.88
0.88
0.88
0.88
0.88
4.
GATURI/GITHIMU/1583
FESTUS GATHERU WAHOME
ALICE WANJIRA NJOROGE
WACHIURI WAHOME
JACKSON KINYORI WAHOME
REGINA WANJA WAHOME
GLADYS WANGUI WAHOME
JOHN NDURA WAHOME
PATRICK MBOGO WAHOME
SAMUEL WAHOME
WAITHIEGENI
Equal
Share
5.
PLOT NO.1 NGURUMO
PATRICK WAHOME MBOGO
Whole
Share
6. The Protestor who himself is one of the administrators of the estate filed in response this Affidavit of Protest. The matter was referred to Court Annexed Mediation ( CAM ) but no settlement was reached thus the dispute was set down for hearing.
7. The matter was heard by way of oral evidence. The Protestor called two (2) witnesses whilst the Respondents also called two (2) witnesses.
THE EVIDENCE
8. The Protestor Wachiuri Wahome told the Court that he was a son to the Deceased, a beneficiary to the estate and also an Administrator of the same. The Protestor stated that he was not involved in the preparation of the Summons for Confirmation of Grant and states that he opposes the proposed mode of distribution of the estate contained in Paragraph 5 of that Summons.
9. The Protestor avers that some of the assets belonging to the Deceased have been omitted from the Summons namely the property known as KIRIMUKUYU/KIRIA/17 where the Deceased had set up his homestead. The Protestor seeks to rely on a Valuation Report filed on Succession Cause 490 of 2009 Estate of Rebecca Muthoni Wahome (Late Widow of the Deceased).
10. Further the Protestor contends that Plot No. Gathuri/Gitumu/1583 does not form part of the estate of the Deceased. That the said plot in fact forms part of the estate of their late mother Rebecca Muthoni Wahome . That Plot No. 2 Ngurumo Village which the Deceased purchased from one Philip Machira has been omitted from the list of assets to be distributed. That the mode of distribution has also left out certain personal and household items which belonged to the Deceased i.e wardrobes, sofasets, tables, cupboards, farming tools, sewing machine etc which the Protestor accuses his brother Patrick Mbogo of having illegally bequeathed to himself.
11. Finally the Protestor accuses his two (2) co-administrators of having
illegally intermeddled with the estate by concealing assets which they have secretly bequeathed to themselves. The Protestor sets out in his annextures an alternative mode of distribution of the estate as follows;-
1. Kirimukuyu/Kiria/17 Kagaari/Kanja/1863 Kirimukuyu/Kiria/68
Festus Gatheru 1.3275 acres 1.575 -
Wahome
Wachiuri Wahome 1.375 acres 1.575 -
Jackson Kinyori 1.3275 acres 1.575 -
Wahome
Patrick Mbogo 1.2475 acres 0.175 1.40
Wahome
Samuel Wahome 1.3275 acres 1.575 -
Waithiegeni
Alice Wanjira
Njoroge
Regina Wanja 2.9425 acres 0.525
Wahome
Gladys Wangui
Wahome
Access road 0.20 acres - -
2. The homestead and personal and household effects therein go to
Alice Wanjira Njoroge, Regina Wanja and Gladys Wangui as part of
the 2.5 acres.
3. Layout on the ground be guided by the resolutions of elders at the
meeting convened by the chief on 22/7/2013.
4. Plot No. 1 be sold to meet administration expenses. Proceeds of
sale to be deposited in a bank account to be operated jointly by
the three Administrators. Any balance to be shared equally among
all beneficiaries.
12. PW2 JACKSON KINYORI WAHOME is also a son to the Deceased
and a beneficiary to the estate. He states that he opposes the mode of
distribution as set out in the Summons for Confirmation of Grant and
states that he supports the Affidavit Protest dated 12 th June 2023 .
13. DW1 FESTUS GATHERU testified on behalf of the Respondents.
DW1 confirmed that Grant of letters of administration was on 20 th
December 2022 issued to himself, the Protestor and Gladys
Wangui . The witness prays that the court now proceed to confirm
the grant so that distribution of the estate may proceed.
14. DW1 denied the allegation that some of the Deceased’s properties
had not been included in the summons for Confirmation of Grant and
denied the allegation of intermeddling with the estate.
15. DW2 PATRICK MBOGO WAHOME a son of the Deceased and a
beneficiary to the estate supported the summons for confirmation of
the grant. Both DW1 and DW2 expressed great frustration due to
the fact that over thirty (30) years since the demise of their father,
the estate was yet to be distributed. They blamed the Protestor for
causing delay by filing numerous applications thereby keeping the
family in litigation over the matter.
16. Upon closure of oral evidence parties were invited to file and exchange
written submissions. The Protestor filed written submissions which
were undated whilst the Respondents relied upon the written
submissions dated 2 nd February 2026 .
ANALYSIS AND DETERMINATION
17. I have carefully considered the Summons for Confirmation of Grant
dated 13 th January 2023 , the Affidavit of Protest dated 12 th June
2023 the evidence adduced in court as well as the written submissions
filed by the parties.
18. It is common ground that the Deceased in this matter passed away on
1 st January 1994 . The parties are in agreement that the initial grant
was issued to the widow Rebecca Muthoni Wahome and that
following her demise on 20 th July 2008 a grant was issued jointly to
the Protestor and the two Respondents. Similarly there exists no
dispute regarding the names and identities of the beneficiaries to the
estate. However the Protestor does challenge the extent of the estate
as set out in the summons for confirmation.
19. At the outset it is important to set it straight that this succession cause
No. 284 of 1996 relates to the estate of Samuel Wahome Gatheru .
This cause is not concerned with the estate of his widow Rebecca
Muthoni Wahome and the court will not allow any attempt to
intermingle the two estates. Each cause is independent of the other.
20. The Protestor has alleged that his co-administrators have deliberately
omitted some of the assets owned by the Deceased. In paragraph (5)
of his protest the Protestor makes reference to certain permanent and
non-permanent free assets which existed in the family home namely
Kirimukuyu/Kiria/17 .
21. I note that the said parcel of land has been included in the summons
for confirmation as one of the assets available for distribution. The
Protestor makes reference to certain household goods including sofa
sets, tables, cupboards, farming tool etc which he claims were not
included in the assets to be distributed. This is indeed laughable and
in my view is a frivolous submission.
22. Firstly the personal and household goods left in the family home would
ordinarily have gone to the widow of the Deceased, who all the
parties concede was still living when the deceased met his death. This
would be in line with the provisions of Section 35 (1) (a) of the Law
of Succession Act which vests in the surviving spouse absolutely all the
personal and household effects of the Deceased. Thus these sofa sets,
jembes, wheelbarrows, clothes and other such items do not form part
of the estate of the Deceased. If the Protestor has a burning desire
to inherit said items then he would need to follow up the issue in
Succession Cause No. 4 of 2009 Estate of Rebecca Muthoni
Wahome .
23. Secondly the Deceased died in the year 1994 over thirty (30) years
ago. It is highly unlikely that these personal items still exist and are
usable today. This is clearly a mischievous claim put in by the Protestor
to waste the Court’s time. On the off chance that the items still exist
and are usable the Protestor may as I have stated earlier pursue them
in Succession No. 49 of 2008 .
24. The Protestor has annexed a valuation report in respect of LR
KIRIMUKUYU/KIRIA/17 (Annexture ‘ WW1’ to the Protest). The
valuation report dated 17 th March 2010 was prepared by Mwai
Githiomi Associates and was filed in Succession 490 of 2008 .
As I have clearly stated succession 490 of 2008 relates to a totally
different estate. The Protestor is making the mistake of treating the
estates of his two parents as one cause. That is not the case. Each is
a separate and distinct cause. In my view this valuation report has no
bearing on the distribution of the assets herein. The courts role is only
to determine how the particular asset should be distributed, not their
value.
25. The Protestor has accused his co-administrators of intermeddling with
the estate and of concealing assets which they have secretly
bequeathed to themselves. The Protestor did not give details of these
assets which the co-administrators had bequeathed to themselves.
26. The Protestor cites the property known as LR Gaturu/Githumu/
1583 which he asserts does not belong to this estate but rather
belongs to the estate of his late mother vide succession No. 490 of
2008 . I was not able to trace the Title document for this particular
parcel in this file. However a perusal of succession cause No. 490
of 2008 revealed a search certificate dated 20 th April 2009 which
indicated that Title Gaturu/Githimu/1583 is registered in the name
of Rebecca Muthoni Wahome . A copy of the title document for
Gaturu/Githimu/1583 which is also in the same file shows
that the said parcel of land was on 5 th June 1972 registered in the
name of Rebecca Muthoni Wahome . There is no evidence of any
change in proprietorship of this parcel of land.
27. The protestor referred to the judgment of Hon. Lady Justice Mary
Kasango (Retired) dated 7 th July 2008 . I have carefully
perused that judgment. In the said judgment the Honourable judge indicated that LR No. Gaturi/Githimu 1583 was in fact registered in the name of then Administrator of the estate one Rebecca Muthoni Wahome . Indeed I note that in Succession Cause No. 490/2008 this parcel of land Gaturi/Githimu 1583 is included as one of the assets owned by the Deceased Rebecca Muthoni Wahome . The same property cannot be an asset in two different estates.
28. I therefore find and hold that this parcel of land did not belong to the
Deceased and therefore is not available for distribution under this
cause. The same may be dealt with in Succession Cause No. 490
of 2008 .
29. At paragraph 15 of the Affidavit of Protest the Protestor states that
the Respondents have failed to take into account Plot No. 2 in
Ngurumo village which he claims that the Deceased purchased from
one Phillip Machira and gave to Festus Gatheru (a beneficiary). The
protestor asserts that this Plot No. 2 forms part of the estate of the
Deceased yet the same has not been included in the Summons for
confirmation.
30. Having perused the voluminous documents in this file I do note that
there exist two plots in Ngurumo being Plot No. 1 and Plot No. 2 .
The Protestors complaint relates to Plot No. 2 which he claimed initially
belonged to the Deceased but was later transferred to ‘ Festus
Gatheru’ . The Protestor has not adduced any evidence to show that
Plot No. 2 Ngurumo was initially registered in the name of the
Deceased and was later transferred to Festus Gatheru .
31. Annexed to the Affidavit of Rebecca Muthoni Wahome dated 2 nd
May 2001 is a Plot Search Certificate (Annexture RMW ‘4’ ) dated 19 th
April 2001 which certificate indicates that Plot No. 2 Ngurumo Market
is registered in the name of Gatheru Wahome (the 1 st Respondent
herein). There is nothing to show that, the position has changed.
There is no evidence that Plot No. 2 ever at any time belonged to the
Deceased. I therefore find and hold that Plot No. 2 Ngurumo Market
belongs to Festus Gatheru Wahome and as such does not form part
of the estate of the Deceased.
32. Regarding Plot No. 1 Ngurumo a Plot search Certificate dated
11 th January 1996 indicates that the same is registered in the name
of Samuel Wahome (the Deceased herein). I therefore find and hold
that Plot No. 1 Ngurumo does form part of the estate of the Deceased
and is available for distribution.
33. To conclude on the question of Plot No. 1 DW1 testified that the family
agreed to sell this plot for Kshs. 40,000 in order to raise funds to cater
for the costs of this succession cause. DW2 Patrick Mbogo indicated
his desire to purchase the said plot. The Protestor under cross-
examination concedes that the parties did agree to sell Plot No. 1
although he denies that the plot was ever sold. The Protestor states
that
“We held a family meeting on 17/9/2000 to discuss the distribution of the estate. My late mother chaired the meeting. We agreed that Plot No. 1 would be sold to meet the costs of administration. The plot was never sold…….”
34. The Protestor goes on to concede that the family agreed that priority
would be given to a beneficiary of the estate to purchase the plot and
that Patrick Mbogo expressed his desire to purchase Plot No. 1 . In
the affidavit dated 1 st August 2024 sworn by Maina Karingithi
Advocate , who was representing the then Administrator of the estate.
It is averred that Patrick Mbogo did indeed pay to the lawyer Kshs.
40,000/= and was issued with a receipt. In the circumstances I do
find that the allocation of Plot No. 1 to Patrick Mbogo is fair and just
as it conforms with the family agreement.
35. The remaining properties Kirimukuyu/Kiria/17, Kagaari/Kanja/
1863 and Kirimukuyu/Kiria/68 all belonged to the Deceased as is
evidenced by the copies of the Green cards which are annexed to the
initial petition which is dated 15 th October 1996 . These documents
show that the properties in question were all registered in the name of
the Deceased Samuel Wahome Gatheru . The same all form part of
the estate of the Deceased and are available for distribution.
36. The Protestor has accused the Respondents of intermeddling with the
estate. The Protestor has not produced before the court any evidence
of this alleged intermeddling by the Respondents. Given that the
Protestor under cross-examination admitted to having sold a portion of
the property known as Kagaari/Kanja/1863 to one Ndwiga Njiru
for which he has already been paid a sum of Kshs. 750,000 , this
particular allegation is a case of the pot calling the kettle black. It was
the protestor himself who intermeddled with the estate by purporting
to sell off estate property to a third party. This sale was done
without the consent of the other beneficiaries and was before the
Grant had been confirmed.
37. As an Administrator the Protestor is a trustee of the estate. He had no
right to purport to sell off a portion of the estate. Section 45 of the
Law of succession Act makes any form of intermeddling a criminal
offence. Section 82 (b) (ii) of the Law of Succession Act provides that
“No immovable property shall be sold before confirmation of
the grant”
The purported sale by the Protestor before confirmation of the Grants
amounts to intermeddling and is null and void.
38. The purported sale to the said by the Protestor of a portion of estate
land was illegal under the terms of Section 45 of the Act. The so
called purchaser is not a beneficiary to the estate and has no locus
standi in this matter.
39. In RE ESTATE OF JOHN GAKUNGA NJOROGE [2015] eKLR the
Court stated as follows:-
“ For the transaction between the applicants and the beneficiaries of the estate of the deceased entered into before the Grant of Letters of Administration to them and before the confirmed Grant, the contracts of sale are invalid for offending the provisions of sections 45 and 82 of the Law of Succession Act . Even if the sale transactions were by the administrators the dealings with immovable property of the estate is restricted by the provisions of the powers and duties of the personal representative under Section 82(b) proviso (ii) which provides that “ no immovable property shall be sold before confirmation of the grant .” [Own emphasis]
40. I have looked at and compared the mode of distribution as proposed
by the Respondents and by the Protestor. I note that the Protestor
does not appear sure of how he wants the estate to be distributed. In
his Protest he sets out one mode of distribution yet in his written
submissions the Protestor proposes that a different mode of distribution
be adopted. In my view the proposal put forward by the Respondents
is fair just and all inclusive.
41. Finally this Protest is only partially successful specifically in respect of
parcel of land known as Gaturi/Githimu/1583 which this court has
found belonged to the widow Rebecca Muthoni Wahome .
42. In conclusion the court makes the following orders
(1) The property known as LR GATURI/GITHIMU/1583 does
not form part of the estate and is not available for distribution
under this cause.
(2) The Grant of letters of Administration Intestate made to FESTUS
GATHERU WAHOME , WACHIURI WAHOME and GLADYS
WANGUI WAHOME on 20 th December 2022 be and is hereby
confirmed.
(3) The estate of the Deceased SAMUEL WAHOME GATHERU is to
be distributed as follows;-
DESCRIPTION
OF PROPERTY
NAME OF HEIR
SHARE (Acres)
1.
KIRIMUKUYU/KIRIA/17
FESTUS GATHERU WAHOME,
ALICE WANJIRA WAHOME,
WACHIURI WAHOME,
JACKSON KINYORI WAHOME,
REGINA WANJA WAHOME,
GLADYS WANGUI WAHOME,
JOHN NDURA WAHOME,
SAMUEL WAHOME
WAITHIEGENI
1.14
1.14
1.14
1.14
1.14
1.14
1.14
1.14
PATRICK MBOGO WAHOME
0.61
2.
KIRIMUKUYU/KIRIA/68
PATRICK MBOGO WAHOME
Whole Share
3.
KAGAARI/KANJA/1863
FESTUS GATHERU WAHOME,
ALICE WANJIRA NJOROGE,
WACHIURI WAHOME,
JACKSON KINYORI WAHOME,
REGINA WANJA WAHOME,
GLADYS WANGUI WAHOME,
JOHN NDURA WAHOME,
SAMUEL WAHOME
WAITHIEGENI
0.88
0.88
0.88
0.88
0.88
0.88
0.88
0.88
4.
PLOT NO 1 NGURUMO
PATRICK WAHOME MBOGO
Whole
Share
(4) This being a family matter each party to meet their own costs.
43. FINALLY as a foot note the court notes that this matter has been under active litigation in the courts for over thirty (30) years . It is a discouraging trend that families are willing to spend years and decades squabbling over wealth left behind by their parents. The result is that family unity is affected, the families are left divided and this affects their children and grandchildren. I have no doubt that these never-ending court battles and the disunity in the family would greatly grieve the parents who did not anticipate this outcome as they worked so tirelessly to acquire the wealth which their children are now fighting over.
44. It is time to stop fighting and to let the parents rest in peace. Put away the daggers, let parties put aside their egos and act in unison to distribute the estate and hopefully to some degree family unity may be restored.
Dated in Nyeri this 8 th day of May 2026
HIGH COURT SUCCESSION CAUSE NO. 284 OF 1996 JUDGEMENT Page 20 of 20
IN THE MATTER OF THE ESTATE OF SAMUEL WAHOME GATHERU (DECEASED)
WACHIURI WAHOME………………………..……...…..PROTESTOR
JUDGEMENT
1. Before this court for determination is the Affidavit of Protest to confirmation of Grant dated 12 th June 2023 filed by WACHIURI WAHOME (hereinafter the Protestor).
BACKGROUND
2. This succession cause relates to the estate of the late SAMUEL WAHOME GATHERU who died intestate on 1 st January 1994 . A copy of the Death Certificate Serial No. 295287 is in the Court file. The Deceased was survived by a widow REBECCA MUTHONI (who later passed away on 20 th July 2008 ) and ten (10) children. One of the sons of the Deceased JOHN NDURA WAHOME also passed away on leaving behind no family.
3. In the Petition for Grant of letters of administration Intestate the estate of the Deceased was said to comprise of the following assets;-
(i) Property known as LR KIRIMUKUYU/KIRIA/17 - 9.7 Acres
(ii) Property known as LR KIRIMUKUYU/KIRIA/68 - 1.4 Acres
(iii) Property known as LR KAGARI/KANJA/1863 - 7.0 Acres
(iv) Property known as LR GATHURI/GITHIMU/1583 - 0.15 Hectares (40 x 80)
(v) Plot No. 1 NGURUMO
4. Following the demise of the Deceased Grant of Letters of Administration were on 20 th December 2022 issued to the widow Rebecca Muthoni Wahome . After the demise of the said widow the Grant was issued jointly to FESTUS GATHERU WAHOME, GLADYS WANGUI WAHOME and WACHIURI WAHOME . There has been protracted litigation over this estate. Indeed during the hearing some of the beneficiaries expressed frustration over the fact that this matter remains unconcluded almost thirty (30) years after the death of the Deceased.
5. On 13 th January 2023 the Respondents herein filed a Summons for Confirmation of Grant seeking that the Grant issued to them be confirmed. They proposed that the net estate be distributed in the following manner;-
SCHEDULE OF DISTRIBUTION OF ASSETS
DESCRIPTION
OF PROPERTY
NAME OF HEIR
SHARE (Acres)
1.
KIRIMUKUYU/KIRIA/17
FESTUS GATHERU WAHOME
ALICE WANJIRA WAHOME,
WACHIURI WAHOME,
JACKSON KINYORI WAHOME,
REGINA WANJA WAHOME,
GLADYS WANGUI WAHOME,
JOHN NDURA WAHOME,
SAMUEL WAHOME
WAITHIEGENI
1.14
1.14
1.14
1.14
1.14
1.14
1.14
1.14
PATRICK MBOGO WAHOME
0.61
2.
KIRIMUKUYU/KIRIA/68
PATRICK MBOGO WAHOME
Whole Share
3.
KAGAARI/KANJA/1863
FESTUS GATHERU WAHOME,
ALICE WANJIRA NJOROGE,
WACHIURI WAHOME,
JACKSON KINYORI WAHOME,
REGINA WANJA WAHOME,
GLADYS WANGUI WAHOME,
JOHN NDURA WAHOME,
SAMUEL WAHOME
WAITHIEGENI
0.88
0.88
0.88
0.88
0.88
0.88
0.88
0.88
4.
GATURI/GITHIMU/1583
FESTUS GATHERU WAHOME
ALICE WANJIRA NJOROGE
WACHIURI WAHOME
JACKSON KINYORI WAHOME
REGINA WANJA WAHOME
GLADYS WANGUI WAHOME
JOHN NDURA WAHOME
PATRICK MBOGO WAHOME
SAMUEL WAHOME
WAITHIEGENI
Equal
Share
5.
PLOT NO.1 NGURUMO
PATRICK WAHOME MBOGO
Whole
Share
6. The Protestor who himself is one of the administrators of the estate filed in response this Affidavit of Protest. The matter was referred to Court Annexed Mediation ( CAM ) but no settlement was reached thus the dispute was set down for hearing.
7. The matter was heard by way of oral evidence. The Protestor called two (2) witnesses whilst the Respondents also called two (2) witnesses.
THE EVIDENCE
8. The Protestor Wachiuri Wahome told the Court that he was a son to the Deceased, a beneficiary to the estate and also an Administrator of the same. The Protestor stated that he was not involved in the preparation of the Summons for Confirmation of Grant and states that he opposes the proposed mode of distribution of the estate contained in Paragraph 5 of that Summons.
9. The Protestor avers that some of the assets belonging to the Deceased have been omitted from the Summons namely the property known as KIRIMUKUYU/KIRIA/17 where the Deceased had set up his homestead. The Protestor seeks to rely on a Valuation Report filed on Succession Cause 490 of 2009 Estate of Rebecca Muthoni Wahome (Late Widow of the Deceased).
10. Further the Protestor contends that Plot No. Gathuri/Gitumu/1583 does not form part of the estate of the Deceased. That the said plot in fact forms part of the estate of their late mother Rebecca Muthoni Wahome . That Plot No. 2 Ngurumo Village which the Deceased purchased from one Philip Machira has been omitted from the list of assets to be distributed. That the mode of distribution has also left out certain personal and household items which belonged to the Deceased i.e wardrobes, sofasets, tables, cupboards, farming tools, sewing machine etc which the Protestor accuses his brother Patrick Mbogo of having illegally bequeathed to himself.
11. Finally the Protestor accuses his two (2) co-administrators of having
illegally intermeddled with the estate by concealing assets which they have secretly bequeathed to themselves. The Protestor sets out in his annextures an alternative mode of distribution of the estate as follows;-
1. Kirimukuyu/Kiria/17 Kagaari/Kanja/1863 Kirimukuyu/Kiria/68
Festus Gatheru 1.3275 acres 1.575 -
Wahome
Wachiuri Wahome 1.375 acres 1.575 -
Jackson Kinyori 1.3275 acres 1.575 -
Wahome
Patrick Mbogo 1.2475 acres 0.175 1.40
Wahome
Samuel Wahome 1.3275 acres 1.575 -
Waithiegeni
Alice Wanjira
Njoroge
Regina Wanja 2.9425 acres 0.525
Wahome
Gladys Wangui
Wahome
Access road 0.20 acres - -
2. The homestead and personal and household effects therein go to
Alice Wanjira Njoroge, Regina Wanja and Gladys Wangui as part of
the 2.5 acres.
3. Layout on the ground be guided by the resolutions of elders at the
meeting convened by the chief on 22/7/2013.
4. Plot No. 1 be sold to meet administration expenses. Proceeds of
sale to be deposited in a bank account to be operated jointly by
the three Administrators. Any balance to be shared equally among
all beneficiaries.
12. PW2 JACKSON KINYORI WAHOME is also a son to the Deceased
and a beneficiary to the estate. He states that he opposes the mode of
distribution as set out in the Summons for Confirmation of Grant and
states that he supports the Affidavit Protest dated 12 th June 2023 .
13. DW1 FESTUS GATHERU testified on behalf of the Respondents.
DW1 confirmed that Grant of letters of administration was on 20 th
December 2022 issued to himself, the Protestor and Gladys
Wangui . The witness prays that the court now proceed to confirm
the grant so that distribution of the estate may proceed.
14. DW1 denied the allegation that some of the Deceased’s properties
had not been included in the summons for Confirmation of Grant and
denied the allegation of intermeddling with the estate.
15. DW2 PATRICK MBOGO WAHOME a son of the Deceased and a
beneficiary to the estate supported the summons for confirmation of
the grant. Both DW1 and DW2 expressed great frustration due to
the fact that over thirty (30) years since the demise of their father,
the estate was yet to be distributed. They blamed the Protestor for
causing delay by filing numerous applications thereby keeping the
family in litigation over the matter.
16. Upon closure of oral evidence parties were invited to file and exchange
written submissions. The Protestor filed written submissions which
were undated whilst the Respondents relied upon the written
submissions dated 2 nd February 2026 .
ANALYSIS AND DETERMINATION
17. I have carefully considered the Summons for Confirmation of Grant
dated 13 th January 2023 , the Affidavit of Protest dated 12 th June
2023 the evidence adduced in court as well as the written submissions
filed by the parties.
18. It is common ground that the Deceased in this matter passed away on
1 st January 1994 . The parties are in agreement that the initial grant
was issued to the widow Rebecca Muthoni Wahome and that
following her demise on 20 th July 2008 a grant was issued jointly to
the Protestor and the two Respondents. Similarly there exists no
dispute regarding the names and identities of the beneficiaries to the
estate. However the Protestor does challenge the extent of the estate
as set out in the summons for confirmation.
19. At the outset it is important to set it straight that this succession cause
No. 284 of 1996 relates to the estate of Samuel Wahome Gatheru .
This cause is not concerned with the estate of his widow Rebecca
Muthoni Wahome and the court will not allow any attempt to
intermingle the two estates. Each cause is independent of the other.
20. The Protestor has alleged that his co-administrators have deliberately
omitted some of the assets owned by the Deceased. In paragraph (5)
of his protest the Protestor makes reference to certain permanent and
non-permanent free assets which existed in the family home namely
Kirimukuyu/Kiria/17 .
21. I note that the said parcel of land has been included in the summons
for confirmation as one of the assets available for distribution. The
Protestor makes reference to certain household goods including sofa
sets, tables, cupboards, farming tool etc which he claims were not
included in the assets to be distributed. This is indeed laughable and
in my view is a frivolous submission.
22. Firstly the personal and household goods left in the family home would
ordinarily have gone to the widow of the Deceased, who all the
parties concede was still living when the deceased met his death. This
would be in line with the provisions of Section 35 (1) (a) of the Law
of Succession Act which vests in the surviving spouse absolutely all the
personal and household effects of the Deceased. Thus these sofa sets,
jembes, wheelbarrows, clothes and other such items do not form part
of the estate of the Deceased. If the Protestor has a burning desire
to inherit said items then he would need to follow up the issue in
Succession Cause No. 4 of 2009 Estate of Rebecca Muthoni
Wahome .
23. Secondly the Deceased died in the year 1994 over thirty (30) years
ago. It is highly unlikely that these personal items still exist and are
usable today. This is clearly a mischievous claim put in by the Protestor
to waste the Court’s time. On the off chance that the items still exist
and are usable the Protestor may as I have stated earlier pursue them
in Succession No. 49 of 2008 .
24. The Protestor has annexed a valuation report in respect of LR
KIRIMUKUYU/KIRIA/17 (Annexture ‘ WW1’ to the Protest). The
valuation report dated 17 th March 2010 was prepared by Mwai
Githiomi Associates and was filed in Succession 490 of 2008 .
As I have clearly stated succession 490 of 2008 relates to a totally
different estate. The Protestor is making the mistake of treating the
estates of his two parents as one cause. That is not the case. Each is
a separate and distinct cause. In my view this valuation report has no
bearing on the distribution of the assets herein. The courts role is only
to determine how the particular asset should be distributed, not their
value.
25. The Protestor has accused his co-administrators of intermeddling with
the estate and of concealing assets which they have secretly
bequeathed to themselves. The Protestor did not give details of these
assets which the co-administrators had bequeathed to themselves.
26. The Protestor cites the property known as LR Gaturu/Githumu/
1583 which he asserts does not belong to this estate but rather
belongs to the estate of his late mother vide succession No. 490 of
2008 . I was not able to trace the Title document for this particular
parcel in this file. However a perusal of succession cause No. 490
of 2008 revealed a search certificate dated 20 th April 2009 which
indicated that Title Gaturu/Githimu/1583 is registered in the name
of Rebecca Muthoni Wahome . A copy of the title document for
Gaturu/Githimu/1583 which is also in the same file shows
that the said parcel of land was on 5 th June 1972 registered in the
name of Rebecca Muthoni Wahome . There is no evidence of any
change in proprietorship of this parcel of land.
27. The protestor referred to the judgment of Hon. Lady Justice Mary
Kasango (Retired) dated 7 th July 2008 . I have carefully
perused that judgment. In the said judgment the Honourable judge indicated that LR No. Gaturi/Githimu 1583 was in fact registered in the name of then Administrator of the estate one Rebecca Muthoni Wahome . Indeed I note that in Succession Cause No. 490/2008 this parcel of land Gaturi/Githimu 1583 is included as one of the assets owned by the Deceased Rebecca Muthoni Wahome . The same property cannot be an asset in two different estates.
28. I therefore find and hold that this parcel of land did not belong to the
Deceased and therefore is not available for distribution under this
cause. The same may be dealt with in Succession Cause No. 490
of 2008 .
29. At paragraph 15 of the Affidavit of Protest the Protestor states that
the Respondents have failed to take into account Plot No. 2 in
Ngurumo village which he claims that the Deceased purchased from
one Phillip Machira and gave to Festus Gatheru (a beneficiary). The
protestor asserts that this Plot No. 2 forms part of the estate of the
Deceased yet the same has not been included in the Summons for
confirmation.
30. Having perused the voluminous documents in this file I do note that
there exist two plots in Ngurumo being Plot No. 1 and Plot No. 2 .
The Protestors complaint relates to Plot No. 2 which he claimed initially
belonged to the Deceased but was later transferred to ‘ Festus
Gatheru’ . The Protestor has not adduced any evidence to show that
Plot No. 2 Ngurumo was initially registered in the name of the
Deceased and was later transferred to Festus Gatheru .
31. Annexed to the Affidavit of Rebecca Muthoni Wahome dated 2 nd
May 2001 is a Plot Search Certificate (Annexture RMW ‘4’ ) dated 19 th
April 2001 which certificate indicates that Plot No. 2 Ngurumo Market
is registered in the name of Gatheru Wahome (the 1 st Respondent
herein). There is nothing to show that, the position has changed.
There is no evidence that Plot No. 2 ever at any time belonged to the
Deceased. I therefore find and hold that Plot No. 2 Ngurumo Market
belongs to Festus Gatheru Wahome and as such does not form part
of the estate of the Deceased.
32. Regarding Plot No. 1 Ngurumo a Plot search Certificate dated
11 th January 1996 indicates that the same is registered in the name
of Samuel Wahome (the Deceased herein). I therefore find and hold
that Plot No. 1 Ngurumo does form part of the estate of the Deceased
and is available for distribution.
33. To conclude on the question of Plot No. 1 DW1 testified that the family
agreed to sell this plot for Kshs. 40,000 in order to raise funds to cater
for the costs of this succession cause. DW2 Patrick Mbogo indicated
his desire to purchase the said plot. The Protestor under cross-
examination concedes that the parties did agree to sell Plot No. 1
although he denies that the plot was ever sold. The Protestor states
that
“We held a family meeting on 17/9/2000 to discuss the distribution of the estate. My late mother chaired the meeting. We agreed that Plot No. 1 would be sold to meet the costs of administration. The plot was never sold…….”
34. The Protestor goes on to concede that the family agreed that priority
would be given to a beneficiary of the estate to purchase the plot and
that Patrick Mbogo expressed his desire to purchase Plot No. 1 . In
the affidavit dated 1 st August 2024 sworn by Maina Karingithi
Advocate , who was representing the then Administrator of the estate.
It is averred that Patrick Mbogo did indeed pay to the lawyer Kshs.
40,000/= and was issued with a receipt. In the circumstances I do
find that the allocation of Plot No. 1 to Patrick Mbogo is fair and just
as it conforms with the family agreement.
35. The remaining properties Kirimukuyu/Kiria/17, Kagaari/Kanja/
1863 and Kirimukuyu/Kiria/68 all belonged to the Deceased as is
evidenced by the copies of the Green cards which are annexed to the
initial petition which is dated 15 th October 1996 . These documents
show that the properties in question were all registered in the name of
the Deceased Samuel Wahome Gatheru . The same all form part of
the estate of the Deceased and are available for distribution.
36. The Protestor has accused the Respondents of intermeddling with the
estate. The Protestor has not produced before the court any evidence
of this alleged intermeddling by the Respondents. Given that the
Protestor under cross-examination admitted to having sold a portion of
the property known as Kagaari/Kanja/1863 to one Ndwiga Njiru
for which he has already been paid a sum of Kshs. 750,000 , this
particular allegation is a case of the pot calling the kettle black. It was
the protestor himself who intermeddled with the estate by purporting
to sell off estate property to a third party. This sale was done
without the consent of the other beneficiaries and was before the
Grant had been confirmed.
37. As an Administrator the Protestor is a trustee of the estate. He had no
right to purport to sell off a portion of the estate. Section 45 of the
Law of succession Act makes any form of intermeddling a criminal
offence. Section 82 (b) (ii) of the Law of Succession Act provides that
“No immovable property shall be sold before confirmation of
the grant”
The purported sale by the Protestor before confirmation of the Grants
amounts to intermeddling and is null and void.
38. The purported sale to the said by the Protestor of a portion of estate
land was illegal under the terms of Section 45 of the Act. The so
called purchaser is not a beneficiary to the estate and has no locus
standi in this matter.
39. In RE ESTATE OF JOHN GAKUNGA NJOROGE [2015] eKLR the
Court stated as follows:-
“ For the transaction between the applicants and the beneficiaries of the estate of the deceased entered into before the Grant of Letters of Administration to them and before the confirmed Grant, the contracts of sale are invalid for offending the provisions of sections 45 and 82 of the Law of Succession Act . Even if the sale transactions were by the administrators the dealings with immovable property of the estate is restricted by the provisions of the powers and duties of the personal representative under Section 82(b) proviso (ii) which provides that “ no immovable property shall be sold before confirmation of the grant .” [Own emphasis]
40. I have looked at and compared the mode of distribution as proposed
by the Respondents and by the Protestor. I note that the Protestor
does not appear sure of how he wants the estate to be distributed. In
his Protest he sets out one mode of distribution yet in his written
submissions the Protestor proposes that a different mode of distribution
be adopted. In my view the proposal put forward by the Respondents
is fair just and all inclusive.
41. Finally this Protest is only partially successful specifically in respect of
parcel of land known as Gaturi/Githimu/1583 which this court has
found belonged to the widow Rebecca Muthoni Wahome .
42. In conclusion the court makes the following orders
(1) The property known as LR GATURI/GITHIMU/1583 does
not form part of the estate and is not available for distribution
under this cause.
(2) The Grant of letters of Administration Intestate made to FESTUS
GATHERU WAHOME , WACHIURI WAHOME and GLADYS
WANGUI WAHOME on 20 th December 2022 be and is hereby
confirmed.
(3) The estate of the Deceased SAMUEL WAHOME GATHERU is to
be distributed as follows;-
DESCRIPTION
OF PROPERTY
NAME OF HEIR
SHARE (Acres)
1.
KIRIMUKUYU/KIRIA/17
FESTUS GATHERU WAHOME,
ALICE WANJIRA WAHOME,
WACHIURI WAHOME,
JACKSON KINYORI WAHOME,
REGINA WANJA WAHOME,
GLADYS WANGUI WAHOME,
JOHN NDURA WAHOME,
SAMUEL WAHOME
WAITHIEGENI
1.14
1.14
1.14
1.14
1.14
1.14
1.14
1.14
PATRICK MBOGO WAHOME
0.61
2.
KIRIMUKUYU/KIRIA/68
PATRICK MBOGO WAHOME
Whole Share
3.
KAGAARI/KANJA/1863
FESTUS GATHERU WAHOME,
ALICE WANJIRA NJOROGE,
WACHIURI WAHOME,
JACKSON KINYORI WAHOME,
REGINA WANJA WAHOME,
GLADYS WANGUI WAHOME,
JOHN NDURA WAHOME,
SAMUEL WAHOME
WAITHIEGENI
0.88
0.88
0.88
0.88
0.88
0.88
0.88
0.88
4.
PLOT NO 1 NGURUMO
PATRICK WAHOME MBOGO
Whole
Share
(4) This being a family matter each party to meet their own costs.
43. FINALLY as a foot note the court notes that this matter has been under active litigation in the courts for over thirty (30) years . It is a discouraging trend that families are willing to spend years and decades squabbling over wealth left behind by their parents. The result is that family unity is affected, the families are left divided and this affects their children and grandchildren. I have no doubt that these never-ending court battles and the disunity in the family would greatly grieve the parents who did not anticipate this outcome as they worked so tirelessly to acquire the wealth which their children are now fighting over.
44. It is time to stop fighting and to let the parents rest in peace. Put away the daggers, let parties put aside their egos and act in unison to distribute the estate and hopefully to some degree family unity may be restored.
Dated in Nyeri this 8 th day of May 2026
HIGH COURT SUCCESSION CAUSE NO. 284 OF 1996 JUDGEMENT Page 20 of 20