https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6965

In re Estate of Thuku (Deceased) (Succession Cause E256 of 2022) [2026] KEHC 6965 (KLR) (Family) (14 May 2026) (Ruling) Neutral citation: [2026] KEHC 6965 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Law Courts) Family Succession Cause E256 of 2022 CJ Kendagor, J May 14, 2026 IN THE MATTER OF THE ESTATE OF HENRY GACHATHI THUKU – DECEASED Between Aliet Wawira Gachathi Petitioner and Esther Muthoni Kimani Objector Ruling 1.Henry Gachathi Thuku died on 17th March, 2021. His widow, Aliet Wawira Gachathi, filed for Letters of Administration intestate and she was appointed administrator via a Grant issued on 23rd August, 2022. 2.Esther Muthoni Kimani filed an objection, but the same was lodged after the Grant had been issued. Thereafter, on 8th March 2024, the parties framed an issue for determination as to whether Esther was the deceased’s daughter. 3.The administrator filed an application for Confirmation of Grant dated 30th January, 2023 and thereafter filed an amended summons dated 14th July, 2025. In the amended summons, the administrator acknowledged Esther as a child of the deceased and included her in the schedule of distribution. 4.Esther lodged a protest to the confirmation and an amended protest dated 24th October, 2025. 5.The parties agreed to have the issue on distribution of the estate determined by way of submissions which they filed and the Court has duly considered them. 6.In her pleadings, Esther (the protestor) asked that her mother, Jane Wanjiru Ndungu, be included in the list of beneficiaries. Jane filed an affidavit in support of the protest. The protestor also contested the inclusion of the administrator’s children as beneficiaries of the deceased’s estate, arguing that they were not his biological children. 7.The administrator, on the other hand, acknowledged the paternity subject but maintained that the parties qualified as dependants under the Law of Succession Act. 8.The issue for determination is how the estate’s assets should be distributed among the rightful beneficiaries. 9.Unless there are subsequent proceedings, the probate file concludes with the confirmation of the grant made to the administrator, followed by the administrator’s submission of accounts to verify that the estate has been properly managed and distributed to the rightful beneficiaries. 10.The examination in confirmation of a grant entails identifying the rightful beneficiaries, the free assets of the estate, and their distribution. 11.In this case, there is a dispute over who the dependants are and how the assets are to be distributed; the administrator’s and the protestor’s named beneficiaries and the proposed shares are at variance. 12.Section 29 of the Law of Succession Act defines the meaning of a dependant. It provides as follows:“29(a)the wife or wives, or former wife or wives, and the children of the deceased whether or not maintained by the deceased immediately prior to his death;(b)such of the deceased’s parents, step-parents, grand-parents, grandchildren, step-children, children whom the deceased had taken into his family as his own, brothers and sisters, and half-brothers and half-sisters, as were being maintained by the deceased immediately prior to his death; and(c)Where the deceased was a woman, her husband if he was being maintained by her immediately prior to the date of her death.” 13.Rule 41 of the Probate and Administration Rules provides as follows on the hearing of an application for confirmation;41(1)At the hearing of the application for confirmation the court shall first read out in the language or respective languages in which they appear the application, the grant, the affidavits and any written protests which have been filed and shall then hear the applicant and each protester and any other person interested, whether such persons appear personally or by advocate or by a representative.(2)The court may either confirm the grant or refer it back for further consideration by the applicant or adjourn the hearing for further evidence to be adduced or make any other order necessary for satisfying itself as to the expediency of confirming the applicant as the holder of the grant or concerning the identities, shares and interests of the persons beneficially entitled and any other issue which has arisen including the interpretation of any will.(3)Where a question arises as to the identity, share or estate of any person claiming to be beneficially interested in, or of any condition or qualification attaching to, such share or estate which cannot at that stage be conveniently determined, the court may prior to confirming the grant, but subject to the provisions of section 82 of the Act, by order appropriate and set aside the particular share or estate or the property comprising it to abide the determination of the question in proceedings under Order XXXVI, rule 1 of the Civil Procedure Rules and may thereupon, subject to the proviso to section 71(2) of the Act, proceed to confirm the grant.(4)In proceedings under subrule (3), unless the court otherwise directs, the personal representative of the deceased shall be the applicant seeking determination of the question, and the person claiming so to be beneficially interested together with the residuary legatee or other person to be appointed by the court to represent the residuary estate shall be the respondents; and the court in such proceedings shall give all necessary directions relative to the prosecution thereof including the safeguarding of the share or estate so appropriated and set aside and the provision of costs …” 14.In considering the issue of who the dependants of the deceased are, I have reviewed the pleadings from both the administrator and the protestor. I find it challenging to decide on the issues solely on the basis of the submissions without a viva voce hearing. 15.Determining the matter without hearing all parties involved, and noting that the children named in the petition have not yet had the opportunity to respond to the issues raised by the protestor, would be procedurally improper and unjust. 16.While pleadings and submissions may suffice in certain probate cases, the resolution of probate matters involving dependency issues such as those raised in this case (whether Jane is a wife and or a dependant, and whether Fridah, Joshua, and Carolyne qualify as dependants under the Law of Succession Act) necessitates that all potentially affected parties be granted an opportunity to be heard and to submit their perspectives prior to the rendering of any decisions. Accordingly, this issue remains unresolved and is hereby deferred for future proceedings. 17.The Court has also looked at the issue of the assets, and a key question arises on whether the assets listed are free properties of the estate. 18.Section 3 of the Law of Succession Act defines ‘free property’ as follows: -… In relation to a deceased person, means the property of which that person was legally competent freely to dispose during his lifetime, and in respect of which his interest has not been terminated by his death. 19.The administrator and the protestor listed the assets belonging to the estate as follows;i.Half share of plot No. 238 Site and Service Scheme at Kariobangi, Nairobi;ii.Half share of plot No. 3, Gathage Market, Kimabu County;iii.Portion of Land parcel Ngenda/Gathage/244 (parties specify different sizes of the available portion). 20.Based on the available evidence, the properties are subject to Succession Cause No. 332 of 2009, concerning the estate of Joseph Thuku Gacathi, who is the father-in-law of the administrator and the grandfather of the protestor. 21.The shares are based on the Certificate of Confirmation of Grant dated 7th June, 2024. According to the grant in 333/09, the shares in the three properties are vested in the administrator’s name (Aliet); it is, however, not indicated in that Grant if it was in her capacity as a personal representative of Henry, deceased, whose estate this matter relates to. 22.According to the definition provided in Section 3 of the Law of Succession Act, the listed properties are not considered free properties of the estate. Therefore, the Court cannot issue a Certificate of Confirmation of Grant to transfer the shares that were already distributed in case 339/09 to the beneficiaries in this case before transmission by succession (as per the Grant in case 333/09). There must be evidence presented that the properties have been vested in Henry’s estate before any distribution can occur. 23.If this Court distributes the assets through the issuance of a new certificate in the manner proposed by the administrator or the protestor, it would conflict with an existing valid Certificate of Confirmation of Grant. Further, it would be contrary to Section 3 as the property in question is registered under the name of the father-in-law/grandfather and not in the name of Henry, whom this succession cause relates. 24.In light of the aforementioned reasons, the Court deems it premature to confirm the grant issued to the administrator at this time. 25.This matter will be scheduled for mention in 60 days, during which date the administrator shall confirm the status with regard to the issue of transmission (in 332/2009), following which directions will be taken as may be appropriate. 26.I make no order as to costs. 27.It is so ordered. DATE, DELIVERED AND SIGNED AT NAIROBI THROUGH THE MICROSOFT TEAMS ONLINE PLATFORM ON THIS 14TH DAY OF MAY, 2026.……………………C. KENDAGORJUDGEIn the presence of:Court Assistant: BerylMs. Tikolo Advocate holding brief for Advocate Nguu for the AdministratorNo attendance for the Protestor