https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7068

In re Estate of Githunguri Thara (Deceased) (Succession Cause 96 of 2018) [2026] KEHC 7068 (KLR) (22 May 2026) (Ruling) Neutral citation: [2026] KEHC 7068 (KLR) Republic of Kenya In the High Court at Kiambu Succession Cause 96 of 2018 A Mshila, J May 22, 2026 IN THE MATTER OF THE ESTATE OF GITHUNGURI THARA (DECEASE Ruling Background 1.Geoffrey Ngugi Githunguri, Sarah Njoki Maina, Grace Njoki Kamenyi And Bernard Githunguri Kamau the administrators herein having been issued with the Grant of Letters of Administration Intestate on 2nd February, 2018 filed their Summons for Confirmation of Grant dated 17/5/2022 in respect of the estate of Githunguri Thara the deceased’s herein who died on 16/10/1958. 2.The Administrators herein sought for orders;-a.That the Grant of Letters of Administration intestate issued to Geoffrey Ngugi Githunguri, Sarah Njoki Maina, Grace Njoki Kamenyi And Bernard Githunguri Kamau on 2/2/2018 be confirmed. 3.The surviving beneficiaries were named as follows;-The 1st house of Joyce Nyambura (deceased)i.Henry Kamau Githunguri (deceased) Survived By Bernard Githunguri Kamau-sonii.Peter Munga GithunguriThe 2Nd House Of Rahab Muikamba Githunguri (deceased)I.Geoffrey Ngugi GithunguriIi.Hannah Wambui GacheruIii.Winnie Nduta NjugunaThe 3Rd House Of Lilian Nyagaki Githunguri (deceased)I.Stanley Munga GithunguriIi.Sarah Njoki MainaIii.Rosemary Wanjiku GithunguriThe 4th House of Furashia Njeri Githunguri (deceased)I.Grace Njoki Kamenyi 4.At the time of death of the deceased his estate assets and properties comprised of;-i.Kiambaa/Kihara/505ii.Kiambaa/Kihara/T.213 5.The beneficiaries of the estate were said to have consented to the distribution of the estate as follows;- Property Name Share Kiambaa/Kihara/505 1. Bernard Githunguri Kamau To Hold In Trust For The 1St House In Exclusion Of Peter Munga Githunguri.2. Sarah Njoki Maina To Hold In Trust For The 3Rd House.3. Grace Njoki Kamenyi 1/3 Share1/3 Share1/3 Share Kiambaa/kihara/t.213 Stanley Munga Githunguri Whole 6.Peter Munga Githunguri was said to have benefited from the deceased’s property being Kabete/Karura/T.237 as confirmed by the Court in NAIROBI HIGH COURT CASE NO. 726 OF 1971 as such he was excluded in Kiambaa/Kihara/505. 7.In his Protest dated 2/6/2022 Peter Munga Githunguri deposed that he has not been given a share in the estate of his deceased father because he is the registered owner of Kabete/Karura/T.237. The grant issued in Succession No. 75 of 2000-Kiambu was revoked in Succession Cause No. 144 of 2001 Nairobi further he contended that in HCCC No. 726 of 1971-Nairobi held that LR NO. Kabete/Karura/T.237 did not belong to the deceased at the time of his death and that the decision has not been appealed. The administrators have never listed Kabete/Karura as forming part of the deceased’s estate. 8.The Protestor proposed the mode of distribution as follows;- Name Property Share Grace Njoki KaimenyiBernard Githunguri KamauPeter Munga GithunguriSarah Njoki Maina Kiambaa/kihara/505 In Equal SharesAbsolutely Grace Njoki KaimenyiBernard Githunguri KamauPeter Munga GithunguriSarah Njoki Maina Kiambaa/kihara/t.213 In Equal SharesAbsolutely 9.The Administrators filed their replying affidavit dated 10th November, 2022 where they deposed that the matter is not Res Judicata. The Protestor was excluded as he had benefited from the deceased before his demise and the same should be considered. The administrators agree that property no. Kabete/Karura/T.237 does not form part of the deceased’s estate but the same was purchased with proceeds from the dowry of the deceased’s daughters and registered in the name of the Protestor, therefore, the same is a benefit to the Protestor from the deceased. The deceased was said to have a habit of registering his property in the names of the eldest son of each house. The house of Rahab Muikamba was said to not be sharing in the remaining properties of the deceased for the same reason. The Court was urged to distribute Kiambaa/Kihara/505 as proposed that is 3 portions each for the house of Joyce Nyambura, Lilian Nyagaki And Furashia Njeri as holding otherwise may result in more complications and unfair/unequal distribution. Stanley Githunguri is to benefit from Kiambaa/Kihara/T.213 as he had given money to the estate therefore, he should be considered a purchaser for value rather than a beneficiary. They urged the Court to dismiss the protest in the interest of justice. 10.In his further affidavit, Peter Munga Githunguri the Protestor stated that the deceased left Kshs. 35,000/= in the bank which was distributed to the family of the deceased and he was given Kshs. 4,000/= and later added Kshs. 500/= so as to purchase LR NO. Kabete/Karura/237 in 1960. The deceased passed in 1958 as such the property had never been registered in the name of the deceased. He averred that he is the last born in the house of Joyce Nyambura and that the Court in HCCC NO. 726 OF 1971 conclusively determined that he was not holding the said property in trust for any person. The Applicant stated that he has no objection in LR NO. Kiambaa/Kihara/505 being divided into 3 portions as long as the share for the house of Joyce Nyambura Githunguri is shared equally between himself and the 4th administrator as they belong to the same house. The deceased was the registered owner of LR. NO. Kiambaa/Kihara/ T.213 at the time of his demise and that after the revocation of grant in P & A 144 OF 2001-Milimani the property reverted to the estate to be shared by all the beneficiaries. He stated that there are no legal grounds for him to be excluded from sharing LR NO. Kiambaa/Kihara/T.213 and 505. 11.Subsequently, parties filed their written submissions. Protestor’s Submissions 12.The Protestor submits that LR NO. Kabete/Karura/237 did not form part of the deceased’s estate as the Petitioners in Kiambu Succession Cause No. 75 of 2000 did not include the said parcel of land as part of the estate of the deceased. In HCCC NO. 726 OF 1971 which case involved the Protestor and the three widows of the deceased, the High Court held that LR NO. Kabete/Karura/237 belonged to the Protestor and that the Protestor is a purchaser of LR NO. Kabete/Karura/237. It was submitted that the judgment has never been appealed against. The Petitioners were said to have stated in the Summons for Confirmation of Grant that the property left behind by the deceased were Kiambaa/Kihara /505 and T. 213 leaving out Kabete/Karura/237. The Protestor submits that the Petitioners have never tendered any evidence to show that the suit property was ever registered in the name of the deceased before his demise. Petitioner’s Submissions 13.The Petitioners submit that the Protestor was excluded in sharing the two assets left behind by the deceased as he had benefited from an asset given to him by the deceased. The Petitioners contend that they did not claim that the disputed property was ever in the name of the deceased. The Protestor was said to have failed to answer the question whether the disputed property was bought using dowry money paid to the deceased where the deceased in turn bought the disputed property but registered it in the name of the Protestor as such he should not claim from the remaining properties of the deceased. The gift inter vivos should be considered during distribution or else the Protestor will get a bigger share of the estate. Lastly, that it was found in HCC NO. 729 OF 1971 that the property was bought using dowry paid to the deceased and the same was registered in favour of the deceased. Issues For Determination 14.Upon reading the application and the supporting affidavits and written submissions this Court has framed the following issues for determination;i.Whether LR.No.Kabete/Karura/237 forms part of the deceased’s estateii.Distribution of Kiambaa/Kihara /505 and T. 213. Analysis Whether LR.No.Kabete/Karura/237 forms part of the deceased’s estate 15.The Protestor contends that LR NO. Kabete/Karura/237 did not form part of the deceased’s estate as the Petitioners in Kiambu Succession Cause No. 75 of 2000 did not include the said parcel of land as part of the estate of the deceased. In HCCC NO. 726 OF 1971 which case involved the Protestor and the three widows of the deceased, the High Court held that LR NO. Kabete/Karura/237 belonged to the Protestor; and he submitted that the judgment has never been appealed against. 16.As no appeal has been preferred to date contesting the ownership this Court is satisfied that the property known as LR NO. Kabete/Karura/237 does not form part of the deceased’s estate and it is therefore not available for distribution. Distribution of Kiambaa/Kihara /505 and T. 213 17.It is also not disputed that the deceased was a polygamous man and had married four wives and that they are ALL deceased; if any of the widows were still alive then in those circumstances the applicable law would have been Section 40 of the Law of Succession Act and distribution of the estate would have been subjected to and in accordance with that said provision of law. 18.In this instance there being no surviving spouses, the applicable section in these circumstances is found to be Section 38 of the Law of Succession Act which provides that the estate of the deceased be divided equally between the surviving children of the deceased; the section reads as follows:-“ 38.Where intestate has left a surviving child or children but no spouseWhere an intestate has left a surviving child or children but no spouse, the net intestate estate shall, subject to the provisions of sections 41 and 42, devolve upon the surviving child, if there be only one, or shall be equally divided among the surviving children.” 19.It is also an undisputed fact that the deceased was survived by nine (9) children; and that there is no dispute as to how the property Kiambaa/Kihara /505 should be divided amongst them; therefore for the sake of harmony this Court will adopt the proposed mode of distribution as set out in paragraph 5 hereof. 20.The contentious property is the property known as Kiambaa/Kihara /T.213 shall be distributed equally amongst the Nine (9) children of the deceased in accordance with Section 38 of the Law of Succession Act. Findings And Determination 21.For the foregoing reasons this Court makes the following findings and determinations;i.The Protest is found to be partially with merit and it is partially allowed;ii.LR NO. Kabete/Karura/237 is found that it does not form part of the deceased’s estate and it is therefore not available for distribution.iii.The property Kiambaa/Kihara /505 be divided as set out in paragraph 5 herein.iv.The property known as Kiambaa/Kihara /T.213 shall be distributed equally amongst the Nine (9) children of the deceased.v.The Certificate of Confirmation of Grant be issued accordingly.vi.This being a family issue each party to bear their own costs. Orders Accordingly. DATED SIGNED AND DELIVERED VIA TEAMS AT KIAMBU THIS 22ND DAY OF MAY, 2026HON. A. MSHILAJUDGEIn the presence of;Sanja/Millicent – Court AssistantsGatumuta - For the AdministratorsMokua Manyara - For the Protestor