https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12353

 **REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT MACHAKOS** **SUCCESSION CAUSE NO. 181 OF 2014** **IN THE MATTER OF THE ESTATE OF JULIUS SYANO NDONYE (DECEASED)** **JUDGMENT** **A. Background** **1.** The deceased, Julius Syano Ndonye, died intestate on 21 August 2002. He was survived by two houses: the house of his first wife, the late Alice Munee Syano (who predeceased him, dying on 14 June 1992), comprising six children; Judah Nthwao Syano (deceased), Eliud Musembi Syano (deceased), Josephine Nzisa Syano, Fredrick Kimani Syano, Achim Ndunda Syano (deceased) and Wilfred Manase Syano; and the house of his second wife, Agnes Mueni Syano, who survives him, comprising four children; Davidson Wambua Syano, Danson Kioko Syano, Deborah Nthenya Syano and Joyce Mukulu Syano. **2.** A grant of letters of administration intestate was first issued to Agnes Mueni Syano and Wilfred Manase Syano on 22 November 2014 and confirmed on 30 May 2016. On 25 October 2022 the Applicant, Josephine Nzisa Syano, took out summons under section 76 of the Law of Succession Act to revoke that confirmed grant. **3.** By a judgment delivered on 31 May 2024 by Muigai, J., this court revoked the confirmed grant of 30 May 2016 on the footing that the proceedings leading to it were defective in substance and had concealed material facts; principally the omission from the petition and from the confirmed grant of the households of Judah Nthwao Syano, Eliud Musembi Syano and Achim Ndunda Syano, all of whom had predeceased the filing of the petition, contrary to section 51(2)(g) of the Law of Succession Act. The court further held that several transactions affecting Mavoko Town Block 3/2439; including the sales and exchanges culminating in the subdivisions now registered as Mavoko Town Block 3/53381 and 3/53382; had been carried out before confirmation of the grant and were accordingly void under section 82(b)(ii) of the Act. The court, however, declined to adjudicate the resulting land ownership questions, holding these to be properly a matter for the Environment and Land Court. **4.** The court ordered, among other things, that a fresh grant issue jointly to Agnes Mueni Syano, Wilfred Manase Syano, Fredrick Kimani Syano and Josephine Nzisa Syano; that the family meet, and where possible agree, on a mode of distribution, including through court-annexed mediation; that a preservation order under section 45 of the Act continue over the estate pending distribution; and that any disputed sale agreements be pursued before the Environment and Land Court. **5.** The fresh grant was issued on 9 July 2024. Family meetings were convened on 3 August 2024 and 12 October 2024, and minutes of those meetings were produced by the 4th Respondent, Priscilla Mumbua Mathii, as annexure “PMM-1” to her affidavit of protest sworn on 3 December 2024. In that affidavit, the 4th Respondent avers that a mode of distribution was thereafter filed on 2 December 2024 which departed from what had been agreed at the family meetings, in particular as regards Mavoko Town Block 3/2439 (by then subdivided into Mavoko Town Block 3/53381, registered in her name, and Mavoko Town Block 3/53382, registered in the name of the since-joined 3rd Respondent, Andrew Mbaluto Musila). She protests that this was done without a further family agreement to that effect. **6.** Since then, the matter has come up repeatedly for mention on the question of the mode of distribution: on 16 July 2025, when the court directed that a family meeting be held; on 10 November 2025, when counsel were directed to identify agreed and contentious issues so that a ruling date could be fixed on the competing proposed modes; and on 23 March 2026, when counsel for Josephine Nzisa Syano (Mr Ndambo) confirmed that each party had by then filed its own proposed mode of distribution, and counsel then appearing for the 1st, 2nd and 3rd Administrators (Mr Muongela) confirmed that his clients would abide by the mode filed by Mr Kingoo. A ruling was accordingly fixed for 23 July 2026, and, the file having been erroneously returned to the registry rather than to chambers, was re-fixed for delivery today. **B. The Proposed Modes of Distribution** **7.** Two modes of distribution are before the court. The first, filed by Nzaku & Nzaku Advocates (“the first mode”), proposes, by reference to the deceased's written wishes of 1 June 1997 as follows: (a) **As to Masii/Vyula/1457;** 1. **Josephine Nzisa Syano to take and occupy the deceased’s house and compound where the house stands excluding the portion reserved as the family graveyard.** 2. **Josephine Nzisa to receive portions of land from each of : Frederick Kimani Syano, Lois Mwikali and Margaret Mwikali being compensation for the lost land in Lukenya** 3. **Agnes Mueni to be buried in the graveyard and all other family members to be buried in their allocated land** **(b) that the 1/3 share of Muputi/Kiima-Kimwe/400 be registered in the name of Jackson Kiilu Kivinda.** **(c) that the one share in Wendano wa Matuu Farming Society and the one in Mathatani Farming Society be divided equally among ten named and** **(d) that, as regards Mavoko Town Block 3/2439, be handled and resolved through the ELC** **8.** The second mode, filed by Mr Kingoo on 6 November 2025 on behalf of the 1st, 2nd and 3rd Administrators (“the second mode”), proposes: **(a)** **as to Masii/Vyulya/1457, that the four Administrators hold the property in trust for a list of named beneficiaries, in materially more general terms than the first mode, without the specific house/compound allocation to the Applicant, the graveyard carve-out, or the Lukenya compensation-land terms found in the first mode;** **(b) the same registration of the 1/3 share of Muputi/Kiima-Kimwe/400 to Jackson Kiilu Kivinda;** **(c) the shares in Wendano wa Matuu Farming Society and, with no mention of Mathatani Farming Society, divided among a substantially similar list of named beneficiaries;** **(d) as to Mavoko Town Block 3/2439, a direct distribution of the disputed subdivisions; Mavoko Town Block 3/53382 to Andrew Mbaluto Musila, and Mavoko Town Block 3/53381 shared between Josephine Nzisa Syano (together with Michael Nzisa), Priscillah Mumbua Mathii, and Wilfred Manase Syano**. **9.** The two modes agree on the 1/3 share of Muputi/Kiima-Kimwe/400, before diverging in distribution and in schedule of what forms the estate of the deceased as As to Masii/Vyulya/1457, the first mode sets out a detailed, asset-specific arrangement (the house and compound, the graveyard, the Lukenya compensation-land allocation) that the second mode does not repeat, offering instead only a general trust-holding clause for a differently framed list of beneficiaries; the two cannot be treated as the same proposal. As to Wendano wa Matuu Farming Society, the first mode makes the share conditional on the resolution of Wendano wa Matuu Farming Society v Joshua Kimeu Kioko, Machakos HCCC No. 2 of 2014, a condition the second mode does not repeat, again making the two materially different proposals rather than a shared one. Mathatani Farming Society appears only in the first mode and, as discussed at paragraph 9A below, does not feature in the second mode at all. As to Mavoko Town Block 3/2439, the first mode preserves the twenty acres already held by Jonathan Mutuku Kioko and refers the balance to the Environment and Land Court, while the second mode, on one reading of an internally inconsistent filing, distributes the disputed subdivisions directly, the same filing elsewhere referring the parcel to the Environment and Land Court instead. The court does not need to resolve that inconsistency, since, for the reasons given at paragraphs 14 to 16 below, no part of Mavoko Town Block 3/2439 is confirmed or distributed by this ruling. 10**.** A third document is also before the court: the affidavit of the Applicant, Josephine Nzisa Syano, sworn on 12 September 2025, annexing its own schedule. That schedule is confined to Masii/Vyulya/1457 and proposes fixed acreages rather than the house/compound and Lukenya-compensation terms set out in the first mode; it does not purport to be a filed mode of distribution, and the court treats the first mode's more detailed terms, confirmed at paragraph 12 below, as the operative record for that property. As to the 1/3 share of Muputi/Kiima-Kimwe/400, the same affidavit avers, at paragraph 29(b) of the affidavit, that the share was sold to a third party on 15 February 2003, a claim neither filed mode repeats and which is unsupported by any document before the court. The court does not resolve that claim in this ruling; it confirms the share as the first and second modes agree, to Jackson Kiilu Kivinda, without prejudice to any party's right to raise the alleged 2003 sale before the appropriate forum. As to Mathatani Farming Society, the same affidavit, at paragraph 29(d), describes its status as unknown, consistent with its absence from the second mode and confirming the need for the supplementary affidavit ordered at paragraph 17(c) below. **C. The Law and Its Application** 11**.** Under section 41 of the Law of Succession Act, a predeceased child’s own children, not that child’s surviving spouse, take the representation, see ***In re Estate of Luka Modole (Deceased) [2019] KEHC 5430 (KLR) (Musyoka J)***, holding that a daughter-in-law is not herself entitled to her father-in-law’s estate; ***In re Estate of Pamba Manyole (Deceased) [2024] KEHC 11914 (KLR)***; and ***In re Estate of William Rongora Ntimama (Deceased) [2025] KEHC 11803 (KLR)***, the last cautioning, per ***In re Estate of John Musambayi Katumanga, Succession Cause No. 399 of 2007 [2014] eKLR (Musyoka J)***, that representation must be proved, not merely asserted. The equal-treatment principle is reinforced by ***Rono v Rono [2005] KECA 326 (KLR)***; ***M’murithi v Murithi [2015] KECA 347 (KLR)*** (section 38 applies regardless of gender or marital status). 12.These principles depend, however, on the assets being apportioned belonging to the deceased's estate without dispute; the equal-treatment and representation rules discussed above cannot be applied to property whose ownership is itself contested, since there is, as yet, no settled estate asset to divide. That is the position with Mavoko Town Block 3/2439. This court found, in its judgment of 31 May 2024, that the transactions affecting that parcel, including those producing Mavoko Town Block 3/53381 and 3/53382, were carried out before confirmation of the grant and are void under section 82(b)(ii) of the Act: ***Virginia Mwari Thuranira v Purity Nkirote Thuranira [2017] eKLR***;. That finding stands unappealed. Additionally, under rule 41(3) of the Probate and Administration Rules, a question of ownership must be resolved before confirmation. See ***In re Estate of Teresa Wangui Muruga alias Wangui Muruga (Deceased), Succession Cause No. 378 of 2009 [2021] eKLR (Chemitei J)***, striking a disputed parcel from a distribution schedule while confirming the balance of the estate. 13.The court declines to confirm any distribution of Mavoko Town Block 3/2439, including the twenty acres said to have been settled in Jonathan Mutuku Kioko's name before the deceased's death. A probate court's mandate extends only to assets undisputedly owned by the deceased; where a link in the chain of title is contested or unverified, the asset falls outside what is available for distribution until the dispute is resolved elsewhere: ***In re Estate of Atibu Oronje Asioma (Deceased), Succession Cause No. 312 of 2008 [2022] KEHC 11046 (KLR)***, Additionally, this court’s earlier judgement of 31 May 2024 referred the matter to the ELC and the proceedings are still on going. The entire parcel, not merely its most visibly disputed subdivisions, is accordingly left to the Environment and Land Court, and none of it is distributed. 14.The court does not consider it necessary, still less appropriate, to resolve at this stage whether the 4th Respondent's account of the family meetings, the first mode's account, or the second mode's account of Mavoko Town Block 3/2439 is correct. That is precisely the kind of contested question of fact and title that the 31 May 2024 judgment held to lie outside this court's succession jurisdiction. What the court can and must do is decline to fold any part of a disputed, and on its own prior findings substantially void, chain of title into a confirmed grant. 15**.** For these reasons, it declines to confirm either mode's treatment of Mavoko Town Block 3/2439 in its entirety, that parcel being reserved for the Environment and Land Court. For the avoidance of doubt, the exclusion of Mavoko Town Block 3/2439 from this distribution is without prejudice to the entitlement of any beneficiary, including the 4th Respondent, to pursue that land, or the proceeds of its disposal, before the Environment and Land Court or by way of a further consent application properly brought before this court once the parties have reached an agreement capable of being verified. **D. Disposition** 16.Having perused the proposed modes of distribution of the undisputed assets, I have come to the conclusion that they are ambiguous as they do not specify the identity of the shares to each beneficiary as is requisite under section 71 (2) of the Law of succession Act which states; “***Provided that, in cases of intestacy, the grant of letters of administration shall not be confirmed until the court is satisfied as to the respective identities and shares of all persons beneficially entitled; and when confirmed the grant shall specify all such persons and their respective shares.”*** 17. Accordingly, confirmation of the grant is postponed until such time as the Administrators shall, with the consent of wit the beneficiaries, identify with specificity the respective share(s) of each beneficiary in accordance with the law. 18. The time for confirmation shall for that reason be extended by 90 days. It is so ordered. RULING DELIVERED, DATED AND SIGNED AT MACHAKOS THIS 30TH DAY OF JULY 2026. **E. N. MAINA** **JUDGE** *In the presence of:* Mr. Ndambo for Appellant/Administrator Mr. King’oo for the respondent Mr. Mwongela for 1st, 2nd & 3rd Administrator