https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10608

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT NAIROBI** **MILIMANI LAW COURTS** **FAMILY DIVISION** **SUCCESSION CAUSE NO. E3185 OF 2022** ***IN THE MATTER OF THE ESTATE OF JOHN RICHARD GITHERE ALIAS JOHN MBURU ALIAS JOHN RICHARD MBUGUA ALIAS J.R.M. GITIIERE ALIAS JOHN RICHARD MBUGUA GITHERE (DECEASED)*** **HANNAH WANJIKU WAITHAKA ................... 1ST OBJECTOR** **LEONA WAIRIMU GITHERE ................... 2ND OBJECTOR** **VERSUS** **STANLEY NG’ETHE KINYANJUI ........ 1ST EXECUTOR/RESPONDENT** **ANTHONY SAIYALEL** **SALAON PERTET ........ 2ND EXECUTOR/RESPONDENT** **JOSEPH MOCHU GITHERE .........3RD EXECUTOR/RESPONDENT** **RULING** 1. This matter encapsulates a complex, multi-layered succession dispute that cuts across the foundational principles of Kenya’s probate jurisprudence. At the centre of the dispute is the expansive estate of the late John Richard Githere, also known by various aliases including John Mburu, John Githere, J.R. Githere, John Richard Mbugua, J.R.M. Githere, and John Richard Mbugua Githere. The Deceased, a man of considerable wealth and extensive real estate holdings, met his demise on 9 October 2021. 2. Prior to his death, the Deceased exercised his testamentary freedom by executing a written Will dated 26 March 2014. This testamentary instrument, which sought to regulate the devolution of his lifetime acquisitions, named Stanley Ng'ethe Kinyanjui, Anthony Saiyalel Salaon Pertet, and Joseph Mochu Githere as Executors. The Executors successfully petitioned this Court for a Grant of Probate, which was duly issued on 5 December 2022. 3. The proceedings presently before the Court stem from a Summons for Confirmation under Section 71(1) of the Law of Succession Act dated 27 September 2024, in which the Executors seek the confirmation of the Grant of Probate in accordance with the terms of the Will, as subsequently varied by a Deed of Family Arrangement dated 18 April 2024. 4. The application for confirmation did not proceed uncontested. It elicited formal objections from two parties: Hannah Wanjiku, the 1st Objector and Leona Wairimu Githire, the 2nd Objector. The 1st Objector asserts that she is a former wife of the Deceased, having been married to him under Kikuyu customary law. She contends that the Will failed to make reasonable provision for her as a dependant, and she seeks the Court's intervention to secure the matrimonial home in Naivasha (Plot 140 Lakeview), alongside shares in the Kahawa Estate and Kabati Naivasha plots. Conversely, the Deceased’s Will contains a specific forfeiture clause—an *in terrorem* provision—designed to disinherit any beneficiary who objects to the administration of the estate. The Executors, relying on this clause and pointing to the 1st Objector's nearly 30-year desertion of the Deceased, pray that her objection be dismissed. 5. The 2nd Objector also signalled her opposition to the confirmation. However, the procedural trajectory of her objection diverged significantly from that of the 1st Objector. Despite being afforded ample opportunity to file witness statements, Affidavits, and documentary exhibits as required by the pre-trial directions of this Court, she failed to do so. **The Case for the 1st Objector** 1. The 1st Objector took the stand as PW1. She testified that she currently resides in the United Kingdom, where she works as a foster carer. She asserted that she was married to the Deceased under Kikuyu customary law, a union that she claims was never formally dissolved. PW1 adopted her witness statement dated 7 October 2025 and produced a bundle of documents (Exhibits 1 through 5) to support her claim that she was a wife to the Deceased and is thus entitled to a share of the estate beyond what was provided in the Will. 2. During cross-examination, several critical facts emerged. PW1 admitted that she departed from the Deceased and her matrimonial home in Naivasha, Kenya, in 1995, relocating to London. She conceded that she has not returned to the Naivasha home in the 29 years since her departure. More significantly, PW1 admitted that in 1998, 3 years after abandoning the Deceased, she gave birth to a son sired by another man. She confirmed that the Deceased was not the biological father of this child, a fact corroborated by the child's Birth Certificate. 3. When probed about customary divorce proceedings, PW1 denied any knowledge of efforts by the Deceased to formally dissolve their union. She denied attending or sending representatives to a meeting with the local chief and her father, Joseph Kiriro, and denied receiving a letter dated 2 September 2004 regarding the divorce. 4. Regarding the Will itself, PW1 acknowledged that Clause 8.1.6 bequeathed her a cash legacy of Kshs 5 million, aligning her provision with that of the Deceased's other former wives. She stated that she desired this monetary bequest but sought additional reasonable provision, specifically claiming the Naivasha matrimonial home, which she alleged was currently being transferred to her, alongside other properties. She contested the validity of Clause 8.11 of the Will, arguing that the *in terrorem* clause unfairly targets her and discriminates against her pursuit of fairness. When questioned about her specific contributions to the acquisition of the estate, she claimed she was running three farms and supervised the construction of the Naivasha home, though she admitted she had no written evidence to substantiate these claims. 5. The 1st Objector also called Godfrey Nganga, who testified as PW2. He stated that he knew the 1st Objector through her mother and was present as a witness during the initial customary marriage negotiations between the two families. During cross-examination, however, PW2 admitted that he had no documentary evidence and that his role was strictly limited to witnessing the marriage ceremonies decades ago—a fact that the Executors did not rigorously contest. **The Posture of the 2nd Objector** 1. At the commencement of the hearing on 17 February 2026, Mr. Wamuti, coming on record for the 2nd Objector, sought an adjournment. The Court declined this request, noting that the 2nd Objector’s active evidentiary participation had already been dispensed with. She had neglected to file witness statements or documentary evidence. Consequently, Mr. Wamuti elected to rely entirely on legal submissions to challenge the confirmation of the Grant. **The Case for the Executors** 1. Joseph Mochu Githere, the son of the Deceased and one of the appointed Executors, testified as DW1. He adopted his witness statement and bundle of documents dated 3 November 2025. DW1 acknowledged that the 1st Objector is his biological mother. However, he testified that she abandoned the family in 1985 and never returned to the Naivasha home. He corroborated the documentary evidence showing that the Deceased was not the father of the child born to PW1 in 1998, emphasizing that by the time of the Deceased's passing, he was no longer married to the 1st Objector. 2. DW1 led evidence to demonstrate that the Deceased took deliberate steps to dissolve the customary marriage. He referred to Minutes of a meeting dated 19 January 2001 before a local chief, which was attended by PW1's father, resolving to dissolve the union. DW1 asserted that the customary divorce was final. 3. Defending the integrity of the Will, DW1 testified that the Deceased treated all 3 of his former wives equally, leaving each a legacy of Kshs 5 million. He disputed the 1st Objector's claims of direct financial contribution to the estate, stating that the Deceased was the sole provider and businessman, while the 1st Objector was a housewife engaged in small-scale farming. He further noted that the Deceased had generously bought properties and placed them in her name during his lifetime as gifts *inter vivos* (e.g., the Kikopey properties). DW1 concluded by stating that transferring the Naivasha home to the 1st Objector, who had deserted it nearly three decades ago, would violate the Deceased's express wishes that it remain a family home. **Analysis & Determination** 1. Having carefully reviewed the pleadings, the testimonies of the witnesses, the documentary exhibits, and the rival submissions, this Court distills the following issues for determination: 2. Whether the legal submissions advanced by the 2nd Objector can substitute the requirement for substantive evidentiary proof in a succession dispute. 3. Whether Clause 8.11 of the Deceased's Will (the *in terrorem* or forfeiture clause) is valid and enforceable, and whether it can oust the statutory jurisdiction of the Court under Section 26 of the Law of Succession Act. 4. Whether the Deceased made reasonable provision for 1st Objector under Section 26 of the Law of Succession Act, evaluated against the mandatory statutory parameters outlined in Section 28. The Evidentiary Value of Legal Submissions in the Absence of Testimony 1. The participation of the 2nd Objector presents a foundational question regarding civil practice and procedure. As established, the 2nd Objector failed to file witness statements, affidavits, or documentary evidence to support her objection to the confirmation of the Grant. Her counsel sought to persuade the Court solely through legal submissions. 2. The adversarial system of justice is anchored on a basic, immutable premise: he who alleges must prove. Section 107(1) of the Evidence Act states unequivocally that 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. In civil litigation, the architecture of a case involves three distinct pillars: pleadings, evidence, and submissions. Pleadings define the parameters of the dispute; evidence substantiates the factual allegations contained within the pleadings; and submissions synthesize the proven facts against the applicable law. One cannot leap from pleadings directly to submissions while bypassing the evidentiary stage. 3. The jurisprudence is highly developed and emphatically clear on this frontier. Submissions are not, and can never be elevated to the status of, evidence. In the seminal Court of Appeal decision in ***Moi v Muriithi & another [2014] KECA 642 (KLR),*** the appellate Court laid down the definitive rule regarding the status of submissions: *“Submissions cannot take the place of evidence. The 1st respondent had failed to prove his claim by evidence. What appeared in submissions could not come to his aid. Such a course only militates against the law and we are unable to countenance it. Submissions are generally parties’ “marketing language”, each side endeavouring to convince the court that its case is the better one. Submissions, we reiterate, do not constitute evidence at all. Indeed there are many cases decided without hearing submissions but based only on evidence presented. In any event all the 1st respondent would claim and prove as loss could only relate to the shares in the companies and not the properties of the companies. And even that he did not do.”* 1. Applying this precedent to the present cause, the 2nd Objector's failure to tender evidence is fatal to any factual claim she seeks to advance against the Estate. A claim for reasonable provision under Section 26 of the Law of Succession Act, or an objection to the validity of a Will, is intensely factual. It requires the objector to prove, on a balance of probabilities, their relationship to the deceased, their degree of dependency, their current financial needs, and the unreasonableness of the testamentary disposition. The 2nd Objector cannot establish her status as a dependant, the nature of her relationship with the Deceased, the extent of her maintenance prior to his death, or the unreasonableness of her exclusion from the Will solely through the rhetoric of her counsel. 2. Consequently, the Court finds that the 2nd Objector has failed to discharge the burden of proof required to sustain an objection to the confirmation of the Grant. Her objection is hereby dismissed in its entirety for want of proof. The Status of 1st Objector and the Mechanics of Customary Divorce 1. The 1st Objector asserts that she was the customary wife of the Deceased. The Executors do not rigorously dispute that a Kikuyu customary marriage originally took place; rather, they contend that the Deceased formally dissolved the marriage between 2001 and 2004, following the 1st Objector's desertion of the matrimonial home in 1985 (or 1995, per her testimony). 2. The legal recognition of customary marriages is enshrined in Section 3(1) of the Marriage Act, 2014, which validates marriages celebrated in accordance with the customs of the communities of the parties. To prove a valid Kikuyu customary marriage, courts rely heavily on the anthropological codifications found in expert treatises, notably Dr. Eugene Cotran's *Restatement of African Law: Kenya Vol. 1 - The Law on Marriage and Divorce*. The essential prerequisites for a valid Kikuyu customary marriage (*Ngurario*) are: capacity, consent of the parties and their families, the slaughter of a ram (*ngurario*), the payment of part dowry (*ruracio*), and cohabitation. The evidence tendered by PW1 and PW2 establishes on a balance of probabilities that these initial rites were undertaken. 3. The controversy lies in the dissolution of this union. Under Kikuyu customary law, divorce is traditionally viewed as an extreme measure of last resort, primarily triggered by severe infractions such as prolonged desertion, cruelty, infidelity, or barrenness. Crucially, the process of customary divorce is not unilateral. It cannot be effected merely by a spouse walking away or writing a letter. The process mandates the convening of family elders to attempt reconciliation. If reconciliation fails, the dissolution becomes legally complete only upon the return of the dowry (*ruracio*) by the wife's family to the husband's family. The refund of the *ruracio* serves as the definitive legal marker severing the customary marital bond. 4. DW1, seeking to prove that the marriage was dissolved, relied on documentary evidence: Minutes of a meeting dated 19 January 2001 before a local chief, which allegedly involved PW1's father, and a subsequent letter from the Deceased dated 2 September 2004. While these documents indicate a strong, undeniable intention on the part of the Deceased to terminate the union following PW1's desertion, PW1 denied any participation in these meetings and denied receiving the 2004 letter. 5. Further, the statutory requisite for a divorce, that is the Decree Absolute, was neither mentioned nor produced. As the law stands now, a presumption of divorce cannot be plucked from the air merely because parties have lived apart for decades. 6. Therefore, a strict application of the law indicates that the marriage technically subsisted, despite the total breakdown of the relationship and a 29-year separation. 7. The Court, therefore, finds that the 1st Objector possesses the requisite *locus standi* as a dependant to petition this Court for reasonable provision under Section 26 of the Act. Testamentary Freedom vs. Statutory Dependency and the Validity of the *In Terrorem* Clause (Clause 8.11) 1. Having established her standing, the Court must confront a deeply contested legal mechanism deployed by the Deceased in his Will: Clause 8.11. The Executors rely heavily on this clause to argue that by filing her objection and disrupting the swift administration of the Estate, the 1st Objector has forfeited any right to benefit from the Estate, including the specific Kshs 5 million legacy granted to her under Clause 8.1.6. 2. Clause 8.11 constitutes what is historically known in probate and contract jurisprudence as an *in terrorem* clause, or a no-contest forfeiture clause. The fundamental objective of such a clause is to terrorize, frighten, or coerce a beneficiary into acquiescence, penalizing them with complete disinheritance should they challenge the Will's validity or its distribution scheme. 3. The tension in this issue lies between two competing, foundational doctrines of succession law: the principle of testamentary freedom and the statutory protection of dependants. 4. Section 5 of the Law of Succession Act enshrines the principle of testamentary freedom, granting every adult of sound mind the autonomy to dispose of their free property as they deem fit upon their death. Testators utilize *in terrorem* clauses precisely to fortify this freedom, seeking to ensure that their final wishes are honoured without subjecting the estate to the financial and emotional haemorrhage of protracted family litigation. 5. However, testamentary freedom under the law is not absolute. It is strictly circumscribed by Section 26 of the Act, which empowers the Court to intervene where a will fails to make reasonable provision for a dependant. 6. The core legal question is this: Can a testator use an *in terrorem* clause to oust the statutory jurisdiction of the Court granted under Section 26? 7. Jurisprudence answers this question in the definitive negative. In ***Erastus Maina Gikunu & another v Godfrey Gichuhi Gikunu & another [2016] KECA 126 (KLR)*,** the Court of Appeal emphasized that testamentary freedom must be exercised responsibly and in a manner that makes reasonable provision for dependants, striking down attempts to rigidly disinherit those whom the law protects. Similarly, in the landmark Court of Appeal decision in ***Elizabeth Kamene Ndolo v George Matata Ndolo* [2009] eKLR,** the appellate court ruled that while a testator enjoys the freedom to bequeath property under Section 5, that freedom must be exercised with responsibility, bearing in mind the moral and legal obligations the testator owes to their dependants. The Court cautioned that a testator is not entitled to use his will to vindictively hurt those for whom he was responsible. 8. More directly on the issue of forfeiture clauses, the Court in ***In Re Estate of G.K.K (Deceased) eKLR (2013 KEHC 7002 KLR)*** decisively held that beneficiaries cannot be barred from seeking judicial intervention where it is necessary and just to do so. The Court ruled that judicial oversight prevails over restrictive testamentary provisions, noting that an *in terrorem* clause cannot extinguish the right to challenge a will if it conflicts with statutory guarantees. 9. Furthermore, enforcing a no-contest clause against a dependant seeking relief under Section 26 would be fundamentally contrary to public policy and the constitutional guarantee of access to justice enshrined in Article 48 of the Constitution. A statutory right granted by Parliament to vulnerable dependants cannot be contracted away or unilaterally extinguished by the stroke of a testator's pen. Any attempt to simply block a beneficiary from bringing an inheritance claim is invalid as a matter of public policy because it attempts to oust the jurisdiction of the Court. 10. While *in terrorem* clauses may be validly deployed to deter truly frivolous or malicious challenges to the validity of a will, for example baseless claims of fraud or lack of mental capacity where a specific gift-over is provided, they are wholly void and unenforceable to the extent that they seek to penalize a recognized dependant for invoking their statutory right to seek reasonable provision under Section 26. 11. Therefore, the Court holds that Clause 8.11 of the Will is legally void insofar as it attempts to strip the 1st Objector of her Kshs 5 million legacy merely for approaching this Court to test the reasonableness of her provision. She does not forfeit her specific bequest by virtue of filing this objection. Reasonable Provision 1. Having preserved her legacy and established her standing, the final and most substantive issue is whether the Kshs 5 million bequeathed to the 1st Objector actually constitutes reasonable provision, or whether the Court should interfere with the Will and award her the matrimonial home in Naivasha and equal shares in the Kahawa Estate and Kabati Naivasha plots, as she prays. 2. Section 26 of the Act grants the Court the discretion to order reasonable provision for a dependant out of the deceased's net estate if the disposition effected by the Will fails to do so. However, this discretion is not at large. Section 28 outlines the mandatory statutory parameters the Court must consider when making such an order. 3. The interplay of these factors heavily dictates the outcome of this objection. The jurisprudential concept of reasonable provision does not mean equal distribution, nor does it guarantee a dependant the specific assets they desire. It simply means a provision that is adequate to prevent the dependant from being left destitute, taking into account the history of the relationship, the conduct of the parties, and the size of the estate. 4. The 1st Objector heavily anchored her claim on her alleged contributions to the Estate during her cohabitation with the Deceased prior to 1995. She testified that she supervised the construction of the Naivasha home and managed farms. However, she produced no documentary evidence of financial contribution. While non-monetary contribution is recognized in law, a claim for the division of matrimonial property based on contribution must be brought under the Matrimonial Property Act during the lifetime of the spouses or within the prescribed timelines following a divorce. The Law of Succession Act is not a backdoor mechanism to litigate stale matrimonial property disputes decades after the fact. 5. Furthermore, the 1st Objector’s demand for the transfer of the Naivasha matrimonial home is legally and equitably unsustainable. By her own admission, she deserted the said home in 1995 and never set foot in it for 29 years. An individual cannot abandon a property for nearly three decades, establish a new life and a new family unit in a foreign jurisdiction (including bearing a child with another man), and subsequently return upon the owner's death to claim the property under the guise of reasonable provision. Equity aids the vigilant, not those who slumber on their rights, and the Law of Succession Act cannot be weaponized to reward long-term desertion. 6. Despite the total breakdown of the relationship, the Testator was remarkably magnanimous. Despite the 1st Objector's 29-year absence and her having a child with another man, the Testator did not completely disinherit her. He bequeathed her Kshs 5 million, treating her exactly the same as his other former wives. In evaluating Section 28(e) on the conduct of the dependant, the Court finds that the 1st Objector's prolonged desertion and formation of a new union drastically extinguished any moral or legal obligation the Deceased had to maintain her at a standard higher than what he voluntarily provided in the Will. 7. The Court finds that the Kshs 5 million legacy constitutes reasonable, adequate, and, indeed, generous provision for an estranged wife who had no contact with the Deceased for nearly 30 years. There is no justification whatsoever for this Court to interfere with the Testator's freedom, rewrite the Will, or reallocate the Naivasha matrimonial home or the Kahawa Estate to the 1st Objector. **Disposition** 1. The Deceased herein meticulously documented his wishes in a valid written Will, which was subsequently optimized by the primary beneficiaries via a Deed of Family Arrangement. 2. Accordingly, it is the determination of this Court that the Summons for Confirmation of Grant of Probate is merited and ought to succeed. I, hereby, order as follows: 3. The Objection filed by the 2nd Objector is hereby struck out and dismissed for want of evidentiary proof. 4. The Objection filed by the 1st Objector seeking enhanced provision under Section 26 of the Law of Succession Act lacks merit and is hereby dismissed. 5. The Court declares Clause 8.11 of the Will void and unenforceable to the extent that it seeks to forfeit the specific legacy of the 1st Objector; the 1st Objector remains entitled to the Kshs 5 million bequeathed to her under Clause 8.1.6 of the Will. 6. The Grant of Probate issued to Stanley Ng'ethe Kinyanjui, Anthony Saiyalel Salaon Pertet, and Joseph Mochu Githere on 5 December 2022 is hereby confirmed. The Estate shall be distributed in strict accordance with the written Will dated 26 March 2014, as varied by the Deed of Family Arrangement dated 18 April 2024. 7. Each party shall bear their own costs. **DATED AND DELIVERED AT NAIROBI THIS 17 DAY OF JULY 2026** **HELENE R. NAMISI** **JUDGE OF THE HIGH COURT** Delivered on virtual platform in the presence of: Court Assistant: Lucy Mwangi