https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10311

In re Estate of Gatei (Deceased) (Succession Cause 325 of 2013) [2026] KEHC 10311 (KLR) (9 July 2026) (Ruling) Neutral citation: [2026] KEHC 10311 (KLR) Republic of Kenya In the High Court at Kerugoya Succession Cause 325 of 2013 EM Muriithi, J July 9, 2026 Between Teresia Karuana Karimi Petitioner and Susan Muthoni Njiru Protestor Ruling 1.This is a ruling on an application for confirmation of Grant with protest heard by oral evidence as to the assets and size of the estate and alleged gifts inter vivos. There was no dispute as to he beneficiaries. The Deceased herein Sophia Wanjiru Gatei, died on 15th May, 2012, survived by the following beneficiaries:-a)Teresia Karuana Karimi - daughterb)Chabeta Mutitu Gachoki - daughterc)Susana Muthoni Njiru - daughterd)Francis Wanjohi Gachoki - grandsone)Ann Kariuko Gachoki - granddaughter 2.The estate of the deceased comprised of L.R No. Kabare/gachigi/855 measuring 1.70 Hectares. 3.The petitioner was issued a grant of letters of administration intestate on 17/6/2013. She thereafter filed summons for confirmation of grant on 26/2/2014 where at paragraph 5 of her affidavit in support, she has proposed that that the estate be shared among her, Chabeta Mutitu Gachoki and Francis Wanjohi Gachoki. 4.The petitioner swore further and supplementary affidavits on 11/11/2014 and 16/12/2016 respectively, denying receiving any gift inter vivos from the deceased. 5.In her affidavit of protest sworn on 24/6/2014, the protestor urges that the petitioner had received a gift inter vivos from the deceased, and was thus not entitled to a share of the estate. She proposes that the estate property should be distributed equally among her, Chabeta Mutitu Gachoki, Susana Muthoni Njiru and the children of her late sister Grace Muthoni Gatei. Oral Evidence 6.Susana Muthoni Wanjiru, the protestor herein adopted her affidavit of protest as her evidence in chief. She testified that, “I live in Unjiru Village. I am a farmer. The deceased is my mother. This succession is in relation to her estate. I was not involved in the succession. I wish the land of deceased to be divided between Zabeta Mutitu, Susana Muthoni and Grace Wanjohi. I know Teresia Karimi she is our last born sister. Teresia has her own land - she was given by deceased. She was given 1 acre. I know Francis Munene Njiru. He is my son. He was given a shamba by the deceased. That shamba had a case. He did the case. He attended to it with the deceased. The deceased’s land was being taken away so she gave him that land as a reward for doing the case on it. He spent money on the case. Teresia says Francis was given the land on my behalf but that is not true.” 7.On cross examination, she stated that, “The case Francis did – I can’t recall the case number. I did not mention the case to my lawyer. I have no documents to prove existence of that case. Francis Munene was given land by Sofia but I don’t know the amount of land. I was not involved in that transaction at all. Teresia was given land by deceased. I don’t know the size. The remaining land of deceased is 4½ acres. I want that land to be given to 3 of us: Zabeta Mutitu, Grace Muthoni and myself. Grace Muthoni is deceased. It is true Teresia was given land – I can’t tell the size. If it is subdivided, each of us should get 1½ acres. If it is subdivided I will get my share.” 8.Teresia Karuana Karimi, petitioner herein, testified that, “I live in Kiangweri village. I am a farmer. Deceased is my mother. She had 4 children: Susana Muthoni, Teresia Karuana, Grace Muthoni and......(Unable to remember the 4th) (Remembering) and Zabeta Mutitu. Grace Muthoni died. She had 2 children Francis Wanjohi and Ann Kariuki. I went to our lawyer. I did Affidavit dated 26/2/2014, 11/11/2014 and another one dated 16/12/2016. I want the court to adopt them as my evidence in chief. The Affidavit of 11/11/2014 has 5 green card attachments. I wish them all to be taken as part of my evidence. I want Francis Wanjohi Gachoki my sister Grace’s children to be given 1¾ Acre together with Ann Kariuki Gachoki. Zabeta Mutitu to get 1¾ Acre. Me to get ¾ Acre for me Teresia. Susana Muthoni is not to get because she was given 1¾ Acres by my mother and she said Francis Munene to be given on behalf of Susana. I was given 1 Acre. I want another ¾ Acres so that we all have equal shares. Francis Munene contributed nothing to that case; he was a child. Shown paragraph 5 of Affidavit of 16/12/2016. That is the mode of distribution I want.” 9.On cross examination, she stated that, “There was a case about the land. It ended. It was done by clan elders. It was between my mother and others who died and were clan members. Francis Munene was given land on a date I can’t recall. I don’t know the land parcel number. Deceased first subdivided but I can’t recall when we were given. Susan Muthoni presently lives on a shamba in Embu with her husband. The land subject of this case has a house. Susan has a house on the land in question. The house was built on a day I don’t know. Sophia (deceased) was alive when it was built. Deceased did not prevent Susan from building. I don’t recall when I was given land by deceased. I also don’t recall when Francis was given land. There are green cards. I don’t know of papers I brought. I don’t to read. I can’t recall when Francis was given land. Deceased did not call any meeting to distribute land. I was present when deceased gave Susan. Francis had been given earlier. At that time I was told by villagers that deceased was giving land. My mother gave me 1 Acre. I did not ask why she gave me less. I don’t recall when Grace Muthoni died. She died after I was given land. Grace was not given land, she was ill then died. Zabeta had also not been given she was ill. I am the lastborn. The case I spoke of was done in court, I don’t know which court. I was young. Francis Munene is aged...... I don’t know his age. I know that someone must have an Id to be registered owner of land. Susana is at present harvesting tea planted by deceased. She started immediately after deceased’s death. Susana also cultivates bananas there. She started after deceased died. Susana used to dig on land which had no tea. She was told to go where her son was given. My mother was old. She did not object. The shamba was leased out before. Her son Francis Munene is the one who brought lessees. The land was leased only a small section. There are things I am forgetting. When Francis was mature is when the case ended. The grandchildren of deceased the oldest is Francis. I have children. The oldest is about 30 years. Susana Muthoni was 2nd born of deceased.” 10.In re-examination, she stated that, “Susan has a house in the land. It was built by deceased. The house was demolished and was rebuilt. The material that was demolished was used to build for Susana. Grace had mental illness. Zabeta also had mental illness. I was present when Susan proposed her son be registered on the land. I was given 1 Acre only because I could not read. I asked deceased to add me some land. I was given ¾ but it was not registered. I still use it. Susan begun to dig on the shamba after deceased died. Submissions 11.The petitioner did not file any submissions. 12.The protestor urges that the gift inter vivos was given to her son as appreciation for the assistance he gave to the deceased in handling Meru High Court Case No. 75/1989 and was not in any way related to the estate or the distribution hereof, and cites Re Estate of Pratik Ramesh Meghii Shah [2015] eKLR. She urges the court to find that the gift inter vivos did not form part of the estate of the deceased. Analysis and Determination 13.The sole issue for determination is how the estate property should be distributed. 14.Whereas the petitioner contends that the protestor received a gift inter vivos from the deceased and therefore she is not entitled to a share of the estate, the protestor maintains that the gift inter vivos was given to her son as a token of appreciation for handling another case. 15.The green card in respect of L.R No. Kabare/Gachige/854 reveals that it was initially owned by the deceased before she transferred it to the protestor and Joel Karimi Githinji as joint owners on 15/9/1993. The court also notes the green card for L.R No. Kabare/Gachigi/813 which the deceased transferred to Francis Munene Njiru, the protestor’s son on 18/2/1993. 16.The protestor testified that, “I wish the land of deceased to be divided between Zabeta Mutitu, Susana Muthoni and Grace Wanjohi. Teresia has her own land - she was given by deceased. She was given 1 acre. I know Francis Munene Njiru. He is my son. He was given a shamba by the deceased. The deceased’s land was being taken away so she gave him that land as a reward for doing the case on it.” 17.On her part, the petitioner testified that, “I want Francis Wanjohi Gachoki my sister Grace’s children to be given 1¾ Acre together with Ann Kariuki Gachoki. Zabeta Mutitu to get 1¾ Acre. Me to get ¾ Acre for me Teresia. Susana Muthoni is not to get because she was given 1¾ Acres by my mother and she said Francis Munene to be given on behalf of Susana. I was given 1 Acre. I want another ¾ Acres so that we all have equal shares.” On cross examination, she stated that, “There was a case about the land. It ended. It was done by clan elders. Susan has a house on the land in question. The house was built on a day I don’t know. Sophia (deceased) was alive when it was built. Deceased did not prevent Susan from building. My mother gave me 1 Acre.” 18.The question that then arises is why the deceased elected to bequeath L.R No. Kabare/Gachigi/813 measuring 0.73 Hectares to the protestor’s son, if her true intention had been to benefit the protestor directly. Had that been her intention, nothing would have been easier than making the gift to the protestor herself. 19.The court, therefore, finds no basis for the petitioner’s contention that the bequest was merely a proxy for a gift to the protestor. 20.The record is clear that the petitioner indeed received a gift inter vivos from the deceased of L.R No. Kabare/Gachigi/854 measuring 0.40 Hectares from the deceased. In accordance with the provisions of Section 42 of the Law of Succession Act, that gift must be taken into consideration during distribution of the estate, to ensure equity and equality among the beneficiaries. This court and several other court decisions have consistently applied the provision on gift inter vivos. 21.In Re Estate of the Late Gedion Manthu Nzioka (deceased) [2015] eKLR, the court (P. Nyamweya J, as she then was) stated as follows:“In Law, gifts are of two types (gift inter-vivos and gifts made in contemplation of death (gifts Mortis Causa. For gifts inter-vivos, the requirements of law are that the said gift may be granted by deed, an instrument in writing, or by delivery, by a way of a declaration of a trust by the donor, or by way of resulting trusts or the presumption of gifts of land must be by way of registered transfer, or if the land is not registered it must be in writing or by a declaration of a trust in writing. Gift’s inter- vivos must be complete for the same to be valid.” 22.In Re Estate of Godana Songoro Guyo (Deceased) [2020] eKLR, the court (R. Nyakundi J) said that:“When someone makes a gift to another with the intention of vesting it wholly on that other person and will not be expected to revert back to himself, then such disposition arising there to ought to be validated. Notwithstanding the evidence by the applicants attempt to persuade this Court to admit such evidence on gift intervivos or gift causa mortis there is no such gift over this disputed title in the legal sense.” 23.The Court finds that that the Petitioner herself received L.R No. Kabare/Gachigi/854 measuring 1 acre as a gift inter vivos from the deceased. 24.After the transfer of parcel No. L.R No. Kabare/Gachigi/813 measuring 0.73 Hectares, the estate that remained for distribution being parcel No. Kabare/Gachigi/812 was 2.137 hectares (5.27839 acres). The estate property ought to be shared equally among the 4 beneficiaries of the deceased, with each getting approximately 1.3195975 acres. However, having taken into account the gift inter vivos previously received by the Petitioner of 0.40 ha (1 Acre) being L.R No. Kabare/Gachigi/854 (upon subdivision of parcel no. 812 into nos. 854 and 855), her share hereof will be 0.3195975 acres. 25.Grace Muthoni Gatei died on 25/11/1993, while the deceased herein died on 15/5/2012. Having predeceased the deceased, the court invokes the provisions of section 41 of the Law of Succession Act, which provides that, “Where reference is made in this Act to the “net intestate estate”, or the residue thereof, devolving upon a child or children, the property comprised therein shall be held in trust, in equal shares in the case of more than one child, for all or any of the children of the intestate who attain the age of eighteen years or who, being female, marry under that age, and for all or any of the issue of any child of the intestate who predecease him and who attain that age or so marry, in which case the issue shall take through degrees, in equal shares, the share which their parent would have taken had he not predeceased the intestate.” 26.It was established that the said Grace Muthoni Gatei (deceased) was survived by her 2 children, namely Francis Wanjohi Gachoki and Ann Kariuko Gachoki. Those children shall rightly step into the shoes of their deceased mother and inherit the portion that would otherwise have devolved upon her. Orders 27.Accordingly, for the reasons set out above, the Grant issued to the Petitioner on 17/6/2013 is confirmed for distribution of the estate asset of L.R No. Kabare/gachigi/855 measuring 1.70 hectares (1.70 x 2.47 = 4.199 acres) in the following terms:a.Teresia Karuana Karimi – 0.3195975 acres approximately.b.Chabeta Mutitu Gachoki - 1.3195975 acres approximately.c.Susana Muthoni Njiru – 1.3195975 acres approximately.d.Francis Wanjohi Gachoki and Ann Kariuko Gachoki jointly – 1.3195975 acres approximately. 28.There shall be no orders as to costs. DATED AND DELIVERED THIS 9TH DAY OF JULY 2026.EDWARD M. MURIITHIJUDGEAppearances:Mr. Ngigi for the Petitioner.Mr. Kamuga Mburu for the Protestor.