https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11021

In re Estate of Kathurima (Deceased) (Succession Cause 109 of 2016) [2026] KEHC 11021 (KLR) (22 July 2026) (Judgment) Neutral citation: [2026] KEHC 11021 (KLR) Republic of Kenya In the High Court at Meru Succession Cause 109 of 2016 SM Githinji, J July 22, 2026 IN THE MATTER OF THE ESTEATE OF HENRY MUTHEE KATHURIMA (DECEASED) Between Sarah Mwaka Kathurima Petitioner and Joseph Kimathi Kathurima Interested Party Judgment 1.For determination is the summons for confirmation of grant dated 4/3/2020 under Section 73 of the Law of Succession Act and Rule 40 of the Probate and Administration Rules, seeking that:1.The Grant of Letters of Administration intestate issued to the Petitioner now be confirmed.2.Costs be provided for. 2.The application is supported by an affidavit sworn by the Petitioner on even date. She has at paragraph 5 thereof, proposed how Ngusishi Settlement Scheme/10 measuring 110 Acres, Meru Municipality Block II/870 & 871, Nyaki/Thuura/2129 measuring 4 Acres, Plot Nos. 33A & 33B Kithirune Market, Plot No. 2890/120 Timau measuring 50 100 feet, Ntirimiti Settlement Scheme/129307 at Subuiga area measuring 0.1538 Ha, BCR Plot No. 10 at Subuiga area measuring 0.1538 Ha, BCR Plot No. 10 at Subuiga, Ngusishi Settlement Scheme/1844 at Subuiga measuring 0.03 Ha, Ntirimiti Settlement Scheme/1861 at Subuiga measuring 0.03 Ha and funds in Barclays Bank A/C Nos. 0512002557 and 2023844217, Equity Bank A/C No. 0010261456681 and KCB Bank A/C No. 1109003811-4001-0 (hereinafter referred to as the estate properties) ought to be distributed. 3.The Interested Party swore an Affidavit of protest on 6/6/2022 in opposition to the proposed mode of distribution. He proposed at paragraph 7 thereof the properties which ought to be given to him, and accused the Petitioner of deliberately omitting Narumoru Farm and Mazeras Mombasa Plot No. 1892 from the schedule of distribution, yet they formed part of the estate of the deceased. He contended that he purchased Motor Vehicle Registration No. KAU 989 N Toyota Corolla DX from the deceased, and it did not thus form part of the estate. 4.The Petitioner filed a statement dated 4/4/2024 in support of her Summons for Confirmation of Grant. Oral Evidence 5.Protestor’s Witness 1 Joseph Kimathi Kathurima, the Interested Party herein, adopted his Affidavit of protest, filed on 7/6/2022, as part of his evidence in chief. He told the Court that the deceased was his father and the Petitioner was his stepmother. While he indicated that he was the owner of Motor Vehicle Registration No. KAU 989 N, the purchaser and the registered owner was the deceased. He concurred that the deceased and the Petitioner had a home on L.R No. Nguishi Settlement Scheme/10 and Plot No. Nairobi Block KIT/101/F52 Kitusuru was jointly owned by the Petitioner and deceased. He was in possession of Plot Nos. 33A and B Kithirune Market and Nyaki/Thuura/2129 and he did not have any document to confirm either LR. Isiolo Plot No. 5403 existed or it belonged to the deceased. While he was aware Meru Block II/870 was embroiled in pending litigation with the county government, he was unaware of the sale of Plot No. 1892 prior to the demise of the deceased. He sold 1 of the 3 vehicles the Petitioner gave him, and the 110-acre land was not being cultivated at the material time, nor was the farm machinery being used. 6.Petitioner’s Witness 1 Sarah Mwaka Kathurima, the Petitioner herein, adopted her Affidavit in support of the Summons for Confirmation of Grant and her statement dated 4/4/2024 as part of her Evidence In Chief. She told the Court that she was the wife of the deceased and she resided at Nguishi Plot No. 10, where her matrimonial home was situated. The Kitusuru property was not available for distribution, and the Mazeras property, which was gifted to her by her father, was subsequently registered jointly in her name and the deceased. Motor vehicle Registration Nos. KBR 809 P and KTCB 571 J were used in farm activities, which she relied on for her livelihood. The Interested Party farmed on Thuura, and she had kept Kshs. 4,450,000/-, being the remainder of the proceeds from the sale of Ntirimiti Settlement Scheme/149 for settling other liabilities. She had equally sold another property but had not presented a schedule of how the proceeds therefrom had been utilized. She wanted 63 acres of the Nguishi Settlement Scheme/10 property because she contributed to its purchase. She sold the motor vehicle registration No. KBR 809 P to meet the legal fees in another suit involving the deceased. 7.The application was canvassed by way of written submissions, which were only filed by counsel for the Petitioner. Analysis and Determination 8.The issue for determination is how the estate properties ought to be distributed. 9.The deceased herein died intestate on 23/5/2016, survived by a widow and 5 children namely Sarah Mwaka Kathurima, Joseph Kimathi Kathurima, Judy Nyakairu Ng’ngira, Brian Gitobu Kathurima, Sheila Nkatha Kathurima and Laura Mbodze Mutisya. 10.The provisions of Section 35 (1) of the Law of Succession Act provides that;“Subject to the provisions of section 40, where an intestate has left one surviving spouse and a child or children, the surviving spouse shall be entitled to – (a) the personal and household effects of the deceased absolutely; and (b) a life interest in the whole residue of the net intestate estate: Provided that, if the surviving spouse is a widow, that interest shall determine upon her re-marriage to any person” 11.In the absence of any evidence to support the Interested Party’s assertion that Motor Vehicle Registration No. KAU 989 N belongs to him, its registration in the deceased’s name must be taken as conclusive proof that it is estate property. 12.Further, in light of the Interested Party’s concession that the deceased and the Petitioner have a home on L.R No. Nguishi Settlement Scheme/10, I find that the Petitioner’s proposal to allocate herself 56.6 acres thereof is justified. 13.The Interested Party equally conceded that the Kitusuru property was jointly owned by the deceased and the Petitioner. Consequently, upon the death of one of the joint owners, the doctrine of survivorship applies, with the effect that the deceased’s interest in the property automatically vested in the surviving joint owner. I take cognizance of the letter from Obra International dated 11/9/2017 referring to the proposed construction of a residential house for the deceased and the Petitioner thereon. 14.It was undoubtedly established that the Interested Party was in possession of Plot Nos. 33A and B Kithirune Market and Nyaki/Thuura/2129, and thus it was only just that the same devolve wholly to him. 15.It is manifest that the Petitioner cultivated a substantial portion of L.R No. Nguishi Settlement Scheme/10 using farm machinery and Motor vehicle Registration Nos. KBR 809 P and KTCB 571 J. 16.It was further demonstrated that the Mazeras Plot was also jointly owned by the deceased and the Petitioner, and it was thus unavailable for distribution. 17.In Elizabeth Wanjiru Njonjo Rubia v Brian Mwaituria (2019) KECA 44 (KLR), cited by the Petitioner, the Court of Appeal faulted the trial Court for disregarding the contribution of a widow to the construction of a property, and confining her entitlement to a mere life interest. The appellate Court awarded the widow a 50% share of the property, in view of her direct and indirect contribution thereto. 18.The Petitioner led uncontroverted evidence of her contribution towards the acquisition of L. R No. Nguishi Settlement Scheme/10, and she is thus entitled to half a share thereof. 19.The Court is enjoined by the provisions of Section 28 of the Law of Succession Act to take into account the conduct of the dependants in relation to the deceased, and generally, the nature of the relationship that subsisted between the deceased and the dependants in determining the distribution of the estate. In that regard, I note the letter dated 27/5/1990 where the deceased expressed his displeasure with the Interested Party’s misconduct and his refusal to make amends. 20.I am satisfied that the proposal by the Interested Party is unequitable and clearly skewed towards unfair distribution of the estate to the other beneficiaries. He seeks to have the greater part of the estate devolve solely to him, for no apparent justifiable cause. Such a proposal is manifestly unfair and unconscionable. 21.Conversely, I find the mode of distribution proposed by the Petitioner to be fair and just, as it adequately provides for all the beneficiaries in a manner that is equitable and reasonable. 22.The upshot from the foregoing analysis is that the grant issued to Sarah Mwaka Kathurima, the Petitioner herein, is hereby confirmed as proposed by the Petitioner at paragraph 5 of her Affidavit in support of the Summons for Confirmation of Grant dated 4/3/2020. 23.The Interested Party’s protest, falls by the wayside and it is accordingly dismissed. 24.Each party to bear own costs. DATED AND DELIVERED AT MERU THIS 22ND DAY OF JULY, 2026.S.M. GITHINJI –JUDGE22/7/2026In the Presence of:-Joseph Kimathi Kathurima (Protestor) PresentPetitioner (absent)N/BAdvocates are on strike and are absent.Mention 16/11/2026.DATED AND DELIVERED AT MERU THIS 22ND DAY OF JULY, 2026.S.M. GITHINJI –JUDGE22/7/2026