https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10734

 **REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT KERUGOYA** **SUCCESSION CAUSE NO 128 OF 2013** **IN THE MATTER OF THE ESTATE OF JORAM MUUNA GICHUNGE (DECEASED)** **JOYCE WANJIKU MUUNA…………………..…………. PETITIONER/APPLICANT** **VERSUS** **ALEXANDER MUGWERU GICHUNGE………….………………........ PROTESTOR** **RULING** 1. The Administrator/applicant filed Summons dated 8th November, 2024 seeking the following orders: * + 1. *That the Certificate of Confirmation of Grant dated 22nd January, 2016 be amended.* 2. *That the costs of this application be paid out of the estate.* 2. The application is supported by the supporting affidavit of the applicant setting out the facts relied on that she is the administrator of the deceased estate. The grant herein was confirmed pursuant to the judgement of the Court dated 10th June 2015 and that Estate comprised in LR. NO. MWERUA/KAGIOINI/98 was distributed 3. The applicant avers that upon presenting the grant together with the relevant transmissions for registration at the Lands Office she was advised that prior to his demise the deceased had subdivided the land into 10 equal portions LR. No 1357 to 1366. All the resultant subdivisions measure 0.093 ha each. Further, the applicant avers that 3 of her sons have since died. None of the sons were married and they have agreed on how their respective portions will be re- assigned to their brothers. 4. Moreover, the applicant avers that each of the beneficiary is living on the portion shown by the deceased prior to his death and they agreed that the resultant portions should be distributed as follows: 5. ***Mwerua/Kagioini/1357- 0.093Ha*** *Joyce Wanjiku Muuna - Equally* *Beth Wakini Muriuki* *Lilian Wakio Githome* *Esther Wambui Muna* 1. ***Mwerua/Kagio-ini/1358-0.093 Ha*** *John Kimani Muna -Whole - Whole* 1. ***Mwerua/Kagioini/1359-0.093Ha*** *Edward Mwangi Joram - Equally* *John Kimani Muna* 1. ***Mwerua/Kagioini/1360-0.093Ha*** *Francis Murimi Muna - Equally* *Fredrick Gichira Muna* *Edward Mwangi Joram* *John Kimani Muna* 1. ***Mwerua/Kagioini/1361-0.093Ha*** *Alexander Mugweru Gichunge - Whole* 1. ***Mwerua/Kagio-ini/1362-0.093Ha*** *Shelmith Njeri Muriuki - Whole* 1. ***Mwerua/Kagioini/1363-0.093Ha*** *Francis Murimi Muna -Whole* 1. ***Mwerua/Kagioini/1364-0.093Ha*** *Fredrick Gichira Muna -Equally* *Francis Murimi Muna* 1. ***Mwerua/Kagioini/1365-0.093Ha*** *Fredrick Gichira Muna -Whole* 1. ***Mwerua/Ka ioini/1366-0.093Ha*** *Edward Mwangi Joram -Whole* 1. Lastly, the applicant avers that it is only mete and just that the Grant be amended to incorporate the resultant sub divisions and the names of the deceased beneficiaries be removed. ***Protestor’s Response*** 1. The protestor filed two Replying Affidavits to the same effect that the land MWERUA/KAGIO-INI/98 was given acreage jointly with his mother GRACE NYAWIRA GICHUNGE which is about 2 acres. The deceased family administrator who was MUNA GICHUNGE was brother to ALEXANDER MUGWERU GICHUNGE. The protestor avers that he be granted his hereditary rightful portion of his ancestral land from the land no: MWERUA/KAGIO-INI/98 which is genetic immigration inheritance of his mother’s estate. Lastly, the protestor avers that he opposes the application dated on 8th November 2024 on the part of application by JOYCE WANJIKU MUUNA for orders: a. He recognizes only land no: Mwerua/Kagio-ini/98 and not land No:1357. b. She has no mandate to rule the land without any agreeable stamp. ***Objection by daughters of the deceased*** 1. There was an initial objection by the daughters of the deceased who had filed a Replying Affidavit in response principally . The Counsel for the applicant reported on 9/7/2025 that the objection filed by the daughters of the deceased by their said replying affidavit was settled by compromise, and the only issue of the 1 acre awarded to the Protestor/respondent had been reserved for him in the application for confirmation. 2. The issue then remained between the applicant’s and the respondent and the Court directed that the disputing parties file respective submissions and ruling was reserved. ***Applicant submissions*** 1. The grant issued is in respect to LR. NO. MWERUA/KAGIOINI/98. This Land parcel was subdivided by the deceased before his demise but the petitioner learnt of the subdivision when she attempted to register the transmission. 2. The resultant subdivisions are land parcels number MWERUA/KAGIOINI/1357 to 1366. It is these parcels the applicant seeks to substitute in place of closed title. Some of the beneficiaries in the certificate of confirmation of grant have since died. The applicants seek to redistribute the shares. The protestor who has filed 2 affidavits opposing the amendment is not affected by the amendment in any manner. The trial judge awarded him 0.093 Ha in LR. NO. MWERUA/KAGIONI/98. This share which he occupies and utilizes is now LR. NO. MWERUA/KAGIOINI/13461 measuring 0.093 Ha which the amendment seeks to award him. 3. The applicant further submits that the protestor’s objection is misplaced since his entitlement to the Estate was determined on merit by the trial Judge. He did not appeal the judgment and consequently his entitlement to the estate was conclusively determined at 0.093Ha. ***Protestor submissions*** 1. On 21/06/1993 the protestor and the clan members, village elders and family members held a meeting, the issue was a land dispute, Mr. Muna Gichunge and Mr. Mugweru Gichunge, that is the day every person who was there declared. The protestor and Grace Nyawira Gichunge jointly (2) two acres. The chief made a mistake when stating to add Munas (10) ten sons adding him with his mother as his beneficiaries while they are not his beneficiaries. He prays to be granted his rightful portion of his ancestral land from the no: Mwirua/Kagio-ini/98 which is genetic immigration inheritance of his mother’s a state as cultural inheritance land. ***Issue*** 1. Whether the applicant has established sufficient grounds for amendment or rectification of the confirmed grant. ***Analysis*** 1. The powers of the Court to makes such orders as necessary in the circumstances of the case is reserved under Section 47 of the Law of Succession Act, which provides that: *“The High Court shall have jurisdiction to entertain any application and determine any dispute under this Act and to pronounce such decrees and make such orders therein as may be expedient.”* 1. Further, Rule 73 of the Probate and Administration Rules preserves the inherent powers of the Court and provides that: *“Nothing in these Rules shall limit or otherwise affect the inherent power of the court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the court.”* 1. This Court, therefore, possesses wide discretionary powers to issue orders necessary for the proper administration of estates. Under Section 71 of the Law of Succession Act, the Court has jurisdiction over the confirmation and implementation of grants so as to ensure that the estate is effectively administered. Rule 43 of the Probate and Administration Rules further empowers the Court to rectify errors in grants and certificates of confirmation where necessary to give effect to the intention of the Court and facilitate administration of the estate. 2. For instance, in ***re Estate of Mwaura Mutungi alias Mwaura Gichimu (Deceased)*** [2019] eKLR, the Court held that where the identity or description of estate property changes due to subdivision or survey processes, the Court may amend the certificate of confirmation to reflect the correct parcel numbers so long as the substantive shares of beneficiaries remain unaffected. 3. From the material placed before this Court, it is not disputed that LR No. MWERUA/KAGIOINI/98 no longer exists in its original form having been subdivided by the deceased during his lifetime into parcels numbers 1357 to 1366. The amendment sought is therefore necessary to facilitate transmission and implementation of the confirmed grant. 4. The protestor’s principal grievance appears to concern the extent of his entitlement to the estate. However, the record clearly shows that the issue of distribution was conclusively determined by the judgment delivered on 10th June 2015. The protestor did not appeal against that judgment. 5. This Court cannot, under the guise of rectification proceedings, reopen the question of distribution already settled by a competent court. As held in ***re Estate of Prisca Ong’ayo Nande (Deceased)*** [2020] KEHC 6553 (KLR), an application seeking implementation of a confirmed grant cannot be used as a platform to relitigate issues already determined by the Court. 6. The applicant has demonstrated that the proposed amendment merely substitutes the original parcel number with the resultant subdivisions and redistributes the shares of deceased beneficiaries by consent of the surviving beneficiaries, save the protestor whose interest in the subject matter has already been determined by a lawful final judgment. No prejudice has been shown to be occasioned to the protestor whose share remains intact. ***Conclusion*** 1. The Court understands the dispute between the parties to be the sharing of parcel No. Mwirua/Kagio-ini/98 which the protestor asserts was ancestral land which he was entitled to share together with his brother the deceased, while the applicants seek to enforce the judgment of the Court which they say granted the respondent a share of 0.093 ha on the parcel of land but, on seeking to implement it, found the deceased had subdivided the land and new titles created and hence the need for amendment. It is pointed out by the applicant that the amendment does not affect the respondent’s share as awarded by the Court and that there had been no appeal from the Judgment of the Court. 2. The Court has confirmed from the record that this Court by a judgment delivered on ruled on the Protestor’s entitlement and awarded him 0.093 ha of LR. Mwirua/Kagioini/98. 3. The Judgment of the Court (Limo, J.) dated 10/6/2025 is set out in full, as follows: *“****REPUBLIC OF KENYA*** ***IN THE HIGH COURT OF KENYA AT KERUGOYA*** ***SUCCESSION CAUSE NO. 128 OF 2013*** ***IN THE MATTER OF THE ESTATE OF JORAM MUNA GICHUNGE {DECEASED}*** ***JOYCE WANJIKU MUNA .........................****PETITIONER I****APPLICANT*** ***AND*** ***ALEXANDER MUGWERU GICHUNGE.................... PROTESTOR*** ***JUDGMENT*** *1.* ***ALEXANDER MUKWERU GICHUNGE*** *the protester herein filed a* *protest to the application by the Petitioner herein for Confirmation of Grant issued to her on 5th November, 2011. The main basis for objection to the mode of distribution proposed by the administrator is that the estate should be divided into two equal parts, one part going to administratrix and her children while the remaining part going to him by virtue of being a brother to the deceased the late* ***JORAM MUNA GICHUNGE*** *to which this succession cause relates to.* *2. The protest filed was canvassed through viva voce evidence and all the parties in this cause tendered oral evidence in support of their respective position. The protestor testified that he was living on the land forming part of estate even during the lifetime of his deceased brother. He testified that he had some disagreement with his late brother over the parcel he was occupying. According to him the late brother should have given him half the land since the land belonged to their father. He further told this Court that his late brother did not agree with him and instead chased him out of the land. According to the protestor, his late brother was registered as a trustee of the land parcel No.* ***MWERUA/KAGIOINI/98,*** *the only property forming the estate in this cause.* *3. The Petitioner on her part testified that she was the sole widow to the deceased and that is the capacity in which she petitioned for letters of administration in this cause. She told this Court that the deceased died leaving behind the following children:* *(i) Edward Mwangi* *(ii) Gichira Muna* *(iii) Lilian Nyawira* *(iv) John Kimani* *(v) Mugweru Muna* *(vii)Wamboi Muna* *(vi) Gacheru Muna* *(viii) Wakiine Muna* *(ix) Maina Muna (deceased)* *(x) Irungu Muna (deceased)* *4. The Petitioner testified that her late husband had indicated that all his children should be given a share in the estate and that the protestor be given a share as well and had in fact carried out sub-division and showed each beneficiary their respective portions. She further stated that a surveyor was brought by her late husband and that the protestor should have raised issues with her late husband if he was dissatisfied with the portion given to him. According to the Petitioner the proposed mode of distribution is in accordance with the way her husband had sub-divided the land and reflects his wishes. She conceded that after the demise of her husband, the protestor took her to the area District Commissioner to deliberate over the land dispute but said that the District Commissioner ruled in her favour since the land belonged exclusively to her late husband.* *5. The Petitioner was supported by one of the beneficiaries* ***EDWARD******MWANGI JORAM,*** *a son to the deceased who told the Court that they had agreed as a family to have the estate distributed in accordance with the proposed mode suggested by the administratrix herein. He told the Court that all beneficiaries had got an equal share save for the Petitioner who got a larger share as per their agreement. He told the Court that the land forming the estate had been divided into ten (10) portions. He told this Court that his late father was kind enough to accommodate his brother herein who according to him had otherwise no right to claim any part of the estate arguing that the protestor never even stayed on the portion given to him but they respected their late father's wishes to let him (protestor) take the portion given to him.* *6. This Court has considered all the oral evidence tendered by parties who testified in this cause. The issue for determination is whether the protestor qualifies in law to be considered as a beneficiary to the estate of the late* ***Joram Muna Gichunge*** *(deceased) as a 'dependant' within the meaning given under* ***Section 29*** *of the* ***Law of Succession Act (Cap. 160).*** *Under that section the Petitioner herein and her children automatically qualify to be referred to as dependants therefore entitled to a share in the estate. The protestor however, qualifies under* ***Section 29 (2)*** *only if it is proved that prior to his death, he was maintained by the deceased herein.* *7. Looking at the evidence tendered, there is no doubt that the protestor was actually living in the estate and by extension he was being looked after by the deceased prior to his death. It is only in that respect that this Court considers him a "dependant" and therefore entitled to a share in the estate.* *8. This Court is however, unable to enforce his claim on half the estate as there is no evidence placed before the Court to establish his entitlement to half the estate. He told the Court that his late brother had chased him out of the estate and had a case before the elders and the local administrators. This Court however, is a succession court dealing with testate and intestate succession to the estates of deceased persons. There is no dispute that the property forming the estate* ***(MWERUA/KAGIOINI/98) is*** *registered exclusively in the name of the deceased person herein.* *The protestor though alleging that the deceased was a trustee did not place any evidence to prove the fact. It is also important to note that this Court does not deal with disputes over ownership of land per se, rather it deals with inheritance rights of parties who claim to be heirs or dependants to deceased persons. Where a person has claim over a property forming the estate but has no right as a beneficiary, the right cause is to take up the claim in a separate suit against the administrator / administratrix before a court with requisite jurisdiction to determine the claim.* *9. Having found that the protestor has a right to claim the estate as a dependant under* ***Section 29 (2)*** *of the* ***Law of Succession Act,*** *the next issue is to determine the mode of distribution. Before looking at provisions of the law, it is important to note that the protestor herein ranks second to the Petitioner and the children of the deceased in terms of entitlement to the estate. The provisions of* ***Section 29 (a) and (b), Section 66*** *of the* ***Law of Succession Act and Rule 71) (e) (iii)*** *of Probate & Administration Rules is clear on this and therefore it is important to note what underpins the decision of this Court in determining the mode of distribution of the estate. It must be further noted that distribution of an estate of an intestate person is well provided under the provisions of* ***Sections 35 and 40*** *of the* ***Law of Succession Act.*** *10. The above provisions are applied where parties are in dispute over the mode of distribution. I have considered the suggestion by the protestor that the estate should be divided into two equal portions and be shared between himself and the Petitioner. However, the proposal is unsustainable in law. The protestor really has no right under the Law of Succession to claim ½ share in the estate. I have looked at the mode suggested by Petitioner which appears more acceptable in law as the proposed mode has given almost equal share to all the dependants to the deceased including the protestor herein. Although she has proposed to have a slightly bigger share than the rest, though I do find that the other beneficiaries have no objection with her having the same as the widow to the deceased, the law must apply.* *The upshot of this is that the protest filed herein is not sustained. The grant issued to the Petitioner on 5th July 2011 is hereby confirmed and the mode of distribution shall be as follows:* 1. *Alexander Mugweru Gichunge the protestor herein, shall get 0.093Ha as proposed by the administrator and shall occupy the portion he has been occupying.* 2. *The remaining portion shall be distributed equally among the following beneficiaries:* 3. *Joyce Wanjiku Muna* 4. *John Kimani Muna* 5. *Alex Mugweru Muna* 6. *Edward Mwangi Joram* 7. *Lilian Wakio Githome* 8. *Fredrick Gichira Muna* 9. *Selmith Njeri Muriuki* 10. *Beth Wakini Muriuki* 11. *Francis Murimi Muna* 12. *Esther Wambui Maina* *In order to bring this matter to an end, the District Surveyor is directed to go to that property known as* ***MWERUA/KAGIOINI/98*** *and ensure that the subdivision is carried out in accordance with the confirmed grant and ensure that the respective beneficiaries are shown the beacons respecting as much as possible where each beneficiary may have developed or put up a dwelling house so as to minimize as much as possible movement of houses. The surveyor’s fees shall be shared out equally among the beneficiaries. The Deputy Registrar shall sign requisite documents to facilitate transmission in the event that some beneficiaries become reluctant to cooperate. The District Land registrar is also directed to dispense with productions of Personal Identification Numbers and Identity Cards by he beneficiaries who may be reluctant to cooperate so that the beneficiaries can get their respective titles to their respective shares. It is so ordered.* *Dated and delivered at Kerugoya this 10th day of June 2015.* *R.K. LIMO* *JUDGE* ***10.6.15.*** ***Before Hon. Justice R. Limo*** *Court Assistant Willy* *Edward Mwangi Joram present* *Joyce Wanjiku Muna present* *Alexander Mugweru Gichunge present* ***COURT*** *Judgment signed, dated and delivered in the open Court in the presence of Edward Mwangi Joram, Joyce Wanjiku Muna and Alexander Mugwery Gichunge.* ***R. K. LIMO*** ***JUDGE.****”* 1. The Judgement was delivered in the presence of the protestor. There was no appeal and judgment of the Court delivered almost 11 years ago on 10/6/2025 stands to be implemented. The application to amend simply seeks to align the order of the Court with the reality on the ground following the subdivision and titling of parcels of land created out of the LR No. Mwirua/Kagio-ini/98. Moreover, as pointed out by the Court in the Judgment the issue of the deceased’s holding the property in trust is a land matter the proper province of the Environment and Land Court. 2. At this stage of the proceedings, the role of this Court is to ensure that the determination of the Court on distribution, there having no appeal or stay of any kind, is implemented and enforced. **ORDERS** 1. Accordingly, for the reasons set out above, the Court finds merit in the application by **Summons dated 8/11/2024**, which is granted as prayed. 2. There shall be no orders as to costs in the succession cause. *Orders accordingly.* **DATED AND DELIVERED THIS 14TH DAY OF MAY 2026.** **EDWARD M. MURIITHI** **JUDGE** **APPEARANCES:** M/S Kinyua Kiama & Co. Advocates for the Applicant. Mr. Alexander Mugweru the Respondent.