https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10227

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT MURANGA** **FAMILY DIVISION** **PROBATE AND ADMINISTRATION** **SUCCESSION CAUSE NO 650 OF 2014** **IN THE MATTER OF THE ESTATE OF MBOGO MWATHI (DECEASED)** **DANIEL KAMAU MBOGO & ANOTHER ………..……. APPLICANT** **VERSUS** **JAMLICK GITAU MBOGO …………………….………. RESONDENT** **JUDGEMENT** 1. The applicant and the respondent on 16th September 2014 applied for grant of letters of Administration of the Estate of Mbogo Mwathi Deceased in their capacity as the sons and named the following survivors: 2. Jamlick Gitau Mbogo ……… son 3. Joseph Wainaina Mbogo ……. Son 4. Francis Gichu Mbogo …….. son 5. Daniel Kamau Mbogo ……… son 6. Lydia Njeri Mwangi ……. Married Daughter 7. Jane Wangari Mbogo …….. Daughter 8. Ruth Wambui Muigai ……. Daughter 9. Eric Mbogo Gachihi ….. Grandson 10. John Mbogo Gachihi…… Grandson. 11. They named the following as assets of the deceased available for distribution : 12. Loc16/ KIMANDI /WANYAGE /81 13. LOC16/KIMANDI/231 14. 88 SHARES IN K.T.D.A FARMERS COMPANY LIMITED 15. 400 SHARES IN K.T.D.A FAMERS COMPANY LIMITED 16. 58 SHARES IN K.T.D.A FARMERS COMPANY LIMITED 17. 9205 SHARES IN MAKOMBOKI TEA FACTORY CO. LIMITED 18. 169 SHARES IN IKUMBI TEA FACTORY CO LTD 19. 338 SHARES IN MATARA TEA FACTORY CO. LTD 20. 750 SHARES IN NJUNU TEA FACTORY CO LIMITED 21. 11,883 SHARES IN NGERE TEA FACTORY COMPANY LTD 22. 8673 SHARES IN NGERE TEA FACTORY COMPANY LTD 23. 4974 SHARES IN NJUNU TEA FACTORY COMPANY LTD 24. 247 SHARES IN ICDS INVESTMENT CO LTD 25. 283 SHARES IN NIC BANK LTD . 26. On the 23rd November 2016 Daniel Kamau Mbogo took out summons for confirmation of grant of letters of administration and proposed the following mode of distribution; 27. Land reference number Loc 16/Kimandi /81 measuring 4 acres be inherited by Daniel Kamau Mbogo ( the applicant therein) 28. Land reference number Kimindi/Wanyaga ?231 measuring 5.58 hectares to be inherited as follows: 29. Ruth Wambui Muigai in trust for : 30. Francis Gichu Mbogo -------- 0.93 hectares 31. Ruth Wambui Muigai --------0.4 hectares 32. Joseph Wainaina Mbogo -----0.92 Hectares 33. Jamlick Gitau Mbogo --------0.96 hectares . 34. Lydia Njeri Mwangi in trust for: 35. Lydia Njeri Mwangi ----------0.40 hectares 36. Jane Wangari Gathuo --------0.44 hectares 37. John Mbogo Gachihi -------------0.55 hectares in trust for 38. John Mbogo Gachihi 39. James Kibe Gachihi 40. Lucy Wanjiru Gachihi …. In equal shares 41. Eric Mbogo Gachihi ------------0.55 hectares in trust for 42. Eric Mbogo Gachihi 43. Lucy Mumbi Gachihi 44. Naomi Kaburu Gachihi 45. Edith Wairimu Gachihi …… in equal shares 46. Daniel Kamau Mbogo ----------0.55 hectares in trust for 47. Daniel Kamau Mbogo 48. Joseph Wainaina Mbogo 49. John Mbogo Gachihi ……. In equal shares 50. Road reserve -------------------0.18 hectares . C. Mitumbiri /Wemba/Block /3974 measuring 0.202 hectares to be inherited by (a) Daniel Kamau Mbogo in trust for (i) Daniel Kamau Mbogo …… 0.0404 hectares (ii) Francis Gicho Mbogo ……..0.0404 hectares. (iii)Joseph Wainaina Mbogo ….0.0404 hectares (b) Jamlick Gitau Mbogo …….0.0404 hectares (c ) John Mbogo Gachihi …..0.0202 hectares in trust for 1. John Mbogo Gachihi 2. James Kibe Gachihi 3. Lucy Wanjiru Gachihi ……. In equal shares (d) Erick Mbogo Gachihi ……...0.0202 hectares intrust for 1. Eric Mbogo Gachihi 2. Lucy Mumbi Gachihi 3. Naomi Kaburu Gachihi 4. Edith Wairimu Gachihi …… in equal shares . D. LR Kericho /Londiani /Block 2/Kamuingi /123 comprising 1.756 hectares to be inherited by Daniel Kamau Mbogo. E) LR Sosian/sosian/Block 1/12487 compromising 0.4047 hectares. (a) Jamlick Gitau Mbogo ………0.5Acers or 0.2023 hectares (b) Daniel Kamau Mbogo …….0.5 acres or 0.2023 hectares . F. Sosian /Sosian/Block1/12486 comprising 0.4047 hectares to be inherited by: (i) Daniel Kamau Mbogo …………0.0404 hectares (ii) Joseph Wainaina Mbogo …….0.0404 hectares (iii)Francis Gichu Gachihi ………0.0404 hectares (v)John Mbogo Gachihi ……..0.2441 in trust for (a) John Mbogo Gachihi (b)James Kibe Gachihi ( c) Lucy Wanjiru Gachihi (d) Eric Mbogo Gachihi (e) Lucy Mumbi Gachihi (f) Naomi Kabura Gachihi (g) Edith Wairimu Gachihi …… in equal shares G.. LR, Sosian Block 1/16472 comprising 0.407 comprising 0.4047 to be inherited by (a) Joseph Wainaina Mbogo (b) Francis Gicho Mbogo . H. 3117 shares in NIC Bank to be inherited by a) John Mbogo Gachihi (b) Erick Mbogo ………….1559 share in trust of their houses C) Joseph Wainaina Mbogo. 1559shares in NIC Bank I.169 Shares in Ikumbiti Tea Factory to be inherited by 1. John Mbogo Gachihi 84 shares intrust of their house 2. Erick Mbogo Gachihi 85 shares in trust of their house J. 20,558 shares in Ngerere tea Factory to be inherited by (a) Daniel Kamau Mbogo ………7198 (b) John Mbogo Gachihi …….2512 in trust of their house (c ) Eric Mbogo Gachihi …..2512 in trust of their house (d) Joseph Wainaina Mbogo …..6860 shares (e ) Francis Gichu Mbogo ……1474 shares K. 9205 Shares in Makomboki Tea Factory to be inherited by (a) John Mbogo Gachihi ………1003 shares in trust of their House (b) Eric Mbogo Gachihi ……1004 shares in trust of their house. ( c) Jamlick Gitau Mbogo ….. 7198 shares L. 338 shares in Matata Tea Factory to be inherited by Joseph Wainaina Mbogo M. 133 Shares in Kenya Commercial Bank ltd to be inherited by Francis Gichu Mbogo N. 1000 shares in Kenya Airways to bed inherited by a) Joseph Wainaina Mbogo ……500 shares b) Francis Gichu Mbogo ……..500 shares O. 5724 shares Njunu Tea Factory to be inherited by Francis Gichu Mbogo. Q. 400 shares in KTDA RAHIMTULA TRUST to be inherited by Jamlick Gitau Mbogo R. 6700 shares ICDC to be inherited by Jamlick Gitau Mbogo …………3350 shares Daniel Kamau Mbogo ……….3350 shares S. 100 Shares in WATTLE BARK CO LTD to be inherited by Daniel Kamau Mbogo . 1. On 29th march 2017 the applicant took out a chamber summons in which he sought an amendment to the summons for conformation of grant on the grounds that one of the sons of the deceased namely Francis Gicho Mbogo had since died and that he had expressed his wish that that his estate should go to Solomon Mbogo Kamau as per his alleged will . 2. On 22nd may 2023 the applicant filed a further application for confirmation of grant through the law firm of Gacheru Nganga and proposed the following mode of distribution…. 3. When served with the said application the applicants co-administrator on 12th October 2023 filed what he considered an affidavit in support of the summons for confirmation of grant and stated that one of the children of the deceased Francis Gichu Mbogo died without leaving a wife or children and that the co administrator in his proposed mode of distribution included one Solomon Mbogo Kamau who was his son and not a beneficiary and or dependent of the estate of the deceased in respect an alleged will which was contested and that he could not gift out an asset which he did not own at the time. 4. He deposed further that the deceased had proposed that Daniel Kamau Mbogo retains Kimindi/Wanyaga /81 measuring 4 acres because he was expected to finance all the cost of the succession thus getting more acreage than the rest of the beneficiaries, who had already been placed in actual occupation on the ancestral land. He therefore proposed the following mode of distribution:………………… **PROCEEDINGS** 1. When the matter appeared before me on 13th July 2023, I gave direction that since the administrators did not agree on the mode of distribution, the co- administrator’s affidavit be treated as a protest and the matter be heard by way of oral evidence upon filing of witness statements. 2. On behalf of the applicant he testified as PW1 and stated he was 78 years old the first born in the family and that the objector was younger than him with twenty years. His father used to call him on all family matters. As regards Kimandi /Wanyanga /81his father had given him since the family had a case for which he was given power of attorney and after the success thereof he was given 6 acres while the deceased retained 4 acres thereof, which he distributed. 3. It was his evidence that the deceased distributed Kimandi /Wanyanga /231 before he died and that he was given 2 acres thereof which he started using and 2 acres’ fir saving the land. He proposed that the objector and Joseph be given 2 acres each and that 2 acres thereof was given to the sister by the deceased and that each beneficiary had developed their portion thereof. He started further that the kericho land was sold to them in 2007and that his proposed mode of distribution was based on mutual agreement in the presence of the elders. It was his evidence that once his father died each person decided to build as they wished and the daughters started demanding their share of the estate . 4. In cross examination he conceded that two of their brothers were dead and that the Londiani land was bought by himself and that in 2006 their father was a live, and that his son Solomon inherited their deceased brothers land and took possession thereof in 2018. 5. PW2 Joseph Kamau Kihoro stated that he was 82-year-old and a friend of the deceased and that in respect of 231, the deceased called him and stated that he wanted to divide into 2 acres each for amongst his children and that the Kericho land was sold to the applicant.PW3 DAVID MWATHI KARUMI stated that he was present during the subdivision of 231 in the presence of the applicant and the respondent. PW 4 Isaac Ndungu Mwangi stated that the Londiani land was bought by his father Solomon Mwangi and that after his death he took over the land . 6. DW1 Jamlick Gitau Mbogo stated that their father had eight children , two who had since died. Of the two Francis , did not have a wife and or children. He proposed that in 81 the applicant should be given 2acres plus one which was to take care of the cost of succession. In 231 he proposed that each house was to be given one acre each with the share of Gachigi Mbogo going to his wife Lucy an that the land for their late brother Francis should be shared by all the brothers as he had not seen his alleged will. 7. On the Londiani land he conceded that what Solomon and David bought should be given to them. On the shares he stated that they should be divided equally and that the properties should be divided as per his proposal. 8. In cross examination he stated that their father gave the applicant one acre to compensate him for the court case and for succession and that they were willing to pay the cost for succession since the applicant had not asked them for their shares of the cost. He confirmed that they had built on the subject lands since 2016 and that his proposal will not affect the present settlement. He stated the applicant did not have a house in 231, wherein only himself , joseph , William and Samuel had settled so he should not get land thereat. 9. DW2 John Mbogo Gachigi stated that he was the son of Samuel Gathi Mbogo (deceased )and that he wanted a fair distribution of the estate of his grandfather. There was a family meeting which was not attended by the applicant and that they agreed on the mode of distribution as proposed by the respondent. It was his evidence that he was later provided with a document which he signed not knowing that it was a will. 10. In cross examination he stated that his father had two wives and that he was supposed to be given a share in 231 and that their sister was supporting the proposed by the applicant. On the shares he stated that they balloted for the same and he had no problem with the same. **SUBMISSIONS** 1. On behalf of the applicant it was submitted that nine of the beneficiary had signed consent on the mode of distribution as proposed by the applicant. On the proposed mode of distribution, it was submitted that KIMANDI/WANYAGA/81 be given to him whole based on the fact that the same had been given to him by the deceased in his life time and has been utilizing the same as a gift inter vivo. It was contented whereas the same was 4 acres each of the other beneficiaries were given 2 acres each from Kimandi/ Wanyaga/231 because he had used his resource and effort in litigation which was before the Land Tribunal. 2. On Kimandi/Wanyaga/321 which is 13.8 acres it was submitted that the same had been distributed by the deceased in his life time save for 2.3 acres which the deceased had retained for himself. It was therefore submitted that the same was distributed inter vivo and that the remaining 2.3 acres had been distributed in 2016into several plots and each beneficiary took possession thereof. It was his submission that he bought 1 acre thereof from their sister Lydia Njeri Mwangi who is a married sister who has not come to court to deny the fact. 3. It was further submitted that the smaller portion of 0.1 acre be sold to meet the cost the succession which the protestor had opposed. It was his further submission that 2 acres of the land which was the portion granted to Francis Gichu be given to Solomon Mbogo Kamau his son and a grand son of the deceased as per the will of the deceased, which will has been denied by the protestors who allegedly witnessed the execution but have denied the same and that the said will satisfied the provisions of section 11(a) of the law of Succession in support of which the case of In re Estate of Francis Andabwa Nabwangu (deceased ) [2021] e KL. 4. It was contended that the court should give effect to the will of Solomon Kamau Mbogo as was stated in the case of In the Estate of Ngaulo Arap Tanui alias Arap Tanui (deceased) [2022] eKLR. 5. On Kericho/Londiani Block 2/123 it was submitted that the same was sold by the deceased in his life time and did not therefore form part of the estate of the deceased. On the shares it was submitted that the same was agreed upon by the beneficiary through balloting. It was submitted that the distribution should be as per his proposed mode. 6. On behalf of the protestor, it was submitted that his proposed mode of distribution was based on the fact that the applicant had been given the whole of Kimandi/Wanyaga /81 which measures 4 acres while the rest were given 3 acres each in /321 to compensate him for the expenses incurred on court cases and that the proposed mode of distribution was equally and equitably favourable to all the beneficiaries. 7. As regards the purported will by Francis Gichu Mbogo , it was submitted that the purported beneficiary named therein was the applicant’s son and that the said will did mot meet ball the requirements of section 11( c) of the laws of succession and that the purported witnesses had denied doing so. Further there was no free property for the same to will. **DETERMINATION** 1. In this cause, the beneficiaries of the estate are not in dispute, the only issues in dispute are five (5) 2. The estate of Francis Kamau Mbogo 3. Whether the applicant (1st Administrator) is entitled to apportion of Kimandi/Wanyanga /321 4. What is the status of the portion to Lydia Njeri Mwangi 5. What order should the court make in respect of the property identified by the respondent and not mentioned by the applicant? 6. In this matter, the beneficiaries of the estate of the deceased was not disputed, they have been identified as such by both the Administrator/ applicant and the administrator/objector as indicated in the consent to confirmation of grant. It is also not in dispute that the deceased in his life time had distributed part of his estate to the beneficiaries some of whom have settled on the portion thereof. 7. From the proceedings herein the family of the deceased have as in the nature of these disputes formed two camps and the court has formed an opinion and hold that the dispute herein steamed from the feeling by the objector / respondent and his group that the applicant who is their elder brother has not been very generous with sharing information and has in their mind taken advantage of his birth rite to impose his will upon them and has unjustly enriched himself while the applicant and his group feels that the objector and his group are un-great full for failing to appreciate the role the same played in securing the properties herein. 8. This matter for record purposes was refereed by the court to Court Annexed mediation and by a report thereon the appointed mediator reported that the parties did not reach an agreement and preferred the matter being determined by the court. 9. The first issue for determination is the statutes of the Estate of Francis Gichu who was a beneficiary of the estate and who died before the administration of the estate without leaving dependants? It is not in dispute that the same is entitled to 2 acres out of Kimandi /Wanyaga / 321. It is the applicant’s contention that in his life time he had bequeathed his interest thereto to Solomon Mbogo Kamau, a son of the applicant through a will which is disputed by the respondent and his group. Whereas the applicant produced what he considered the will, it is clear to the court that the said will has not been probated as at the time of this judgement. 10. That will cannot be probated in this cause and therefore this court cannot make determination on the validly thereof as the applicant has invited the court to do. The executor/administrator thereof is at liberty to probate the said will where the respondent will have the opportunity to challenge the same. 11. That being the finding of the court, the 2 acres belonging to Solomon Mbogo Kamau, shall be registered in the name of the two applicants her to hold in trust for the rightful beneficiary/ beneficiaries upon the grant of probate and or letters of administration thereon if the court is confirmed to be valued the same shall be transferred to Solomon and if not shared equally. 12. The second issue is the interest of Lydia Njeri Mwangi, which the applicant submitted had been sold to him and which the respondent has disputed. As stated by the applicant the said Lydia Signed the consent for the confirmation of grant as proposed by the applicant and the same has not raised any objection thereon. I therefore find no merit in the objection herein and find that even if the same did not have any property right to sell to the applicant, in the absence of any objection by the said Lydia, I agree with the proposal by the applicant that his right be transferred to him to hold in trust for her. 13. The other issue is the 1 acre which the applicant proposed to be sold to take care of the expenses for this particular case. As submitted by the applicant, there was no way the deceased would have factored for the same in his life time. I would therefore agree that the cost of this succession must be born by the estate and therefore the said 1 acre shall be registered in the names of the two Administrators herein, subject to taking account of the cost incurred by the applicant up to the time when the dispute herein arose, should the beneficiaries agree on reimbursement to the applicant then the same shall be divided as proposed by the respondent and if not the same to be sold as proposed by the applicant and once the accounts are settled the balance thereof to be shared in the ratio proposed by the respondent. 14. As regards Kericho/LondianiBlock2/123 there is evidence that the deceased had sold the same in his life time and therefore agree with the applicant that the same is not available for distribution. 15. As regards the shares , there is evidence tendered before the court which I find credible that the beneficiaries balloted for the shares during a family meeting which was acceptable to all and the respondent has not given any justification on his proposed mode of distribution. The identified shares shall be distributed as proposed by the applicant save that those beneficiaries who are not interested in having the shares transferred to them , shall be at liberty to sell to any beneficiary who is willing to take it or his share sold by the administrators and proceeds thereto given to the same. 16. From the proposed mode of distribution by the applicant and the respondent in respect of the rest of the assets of the estate, I am unable to see the point of divergence save that the respondent is proposing as an alternative that they be sold and proceeds shares equal. 17. Save for the three issues determined herein as regards the property sold by the deceased in his life time, the shares of Francis and Lydia all the rest of the assets shall be divided as proposed by the applicant unless it is impracticable whereof it shall be sold and shared equally as proposed by the objector. 18. In view of the determination aforesaid the grant is confirmed. The matter shall be mentioned before the DR of the Court within the next 90 days for an execution report thereon . 19. This being a family matter each party shall meet their own cost. 20. And it is ordered. **DATED SIGNED AND DELIVERED THIS 2nd DAY OF JULY 2026** **J WAKIAGA** **JUDGE** In the presence of Court Assistant - Irene Ms. Ndonga for the applicant Mr. Nganga for the respondent