https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6215

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA** **AT NYERI** **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 **12th June 2023** filed by **WACHIURI** **WAHOME** (hereinafter the Protestor). **BACKGROUND** 1. This succession cause relates to the estate of the late **SAMUEL WAHOME GATHERU** who died intestate on **1st 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 **20th July 2008**) and ten (10) children. One of the sons of the Deceased **JOHN NDURA WAHOME** also passed away on leaving behind no family. 2. In the Petition for Grant of letters of administration Intestate the estate of the Deceased was said to comprise of the following assets;- 3. Property known as LR KIRIMUKUYU/KIRIA/17 - 9.7 Acres 4. Property known as LR KIRIMUKUYU/KIRIA/68 - 1.4 Acres 5. Property known as LR KAGARI/KANJA/1863 - 7.0 Acres 6. Property known as LR GATHURI/GITHIMU/1583 - 0.15 Hectares (40 x 80) 7. Plot No. 1 NGURUMO 8. Following the demise of the Deceased Grant of Letters of Administration were on **20th 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. 9. On **13th 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 | 1. 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. 2. 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** 1. 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. 2. 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 **12th June 2023**. 13. **DW1** **FESTUS GATHERU** testified on behalf of the Respondents. **DW1** confirmed that Grant of letters of administration was on **20th** **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 **2nd February 2026**. **ANALYSIS AND DETERMINATION** 17. I have carefully considered the Summons for Confirmation of Grant dated **13th January 2023**, the Affidavit of Protest dated **12th 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 **1st 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 **20th 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 **17th 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 **20th 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 **5th 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 **7th 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 **2nd** **May** **2001** is a Plot Search Certificate (Annexture **RMW ‘4’**) dated **19th** **April 2001** which certificate indicates that **Plot No. 2** Ngurumo Market is registered in the name of **Gatheru Wahome** (the 1st 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 **11th 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 **1st 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 **15th 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 20th 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 8th day of May 2026** **…………………..** **MAUREEN A. ODERO** **JUDGE**