https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8300

In re Estate of Mutiso (Deceased) (Succession Cause 90 of 2001) [2026] KEHC 8300 (KLR) (12 June 2026) (Ruling) Neutral citation: [2026] KEHC 8300 (KLR) Republic of Kenya In the High Court at Machakos Succession Cause 90 of 2001 RC Rutto, J June 12, 2026 IN THE MATTER OF THE ESTATE OF BONIFACE MUNGUTI MUTISO (DECEASED Between Agnes Mumbi Munguti Petitioner and Alphonce Mutiso Protestor Ruling 1.Boniface Munguti Mutiso died intestate on 25th June, 1999. 2.On 7th June, 2001, Agnes Mumbi Munguti, was issued with a grant of letters of administration intestate. On 5th December, 2011, she filed a summons for confirmation of grant dated 2nd December, 2011, supported by an affidavit of even date. In the said affidavit, she deposed that she is the deceased’s widow. She further stated that the deceased had another wife, by the name Loko, whom he had divorced under Kamba Customary law long before his death. 3.She deposed that the Protestor is the son of the said divorced wife and that he and his siblings left the deceased’s home at Masii a long time ago following the divorce. She further stated that the deceased owned three parcels of land at Masii, the largest which he had given to Loko and her children, where they had been settled prior to the said divorce. 4.She alleges that Loko and her children including the Protestor sold the parcel of land to a known person in 2010. She also states that the deceased had another parcel of land Ngwata/Kambu which he had given Loko's household, and challenged the Protestor to disclose its current status, as it has always been in his mother’s care. 5.She further deposed that the remaining two parcels of land at Masii namely; land parcel Nos. Masii/Kithangaini/240 and 241 which form one farm on the ground, where she and her children with the deceased have been settled and have developed it over years. She asserted that these two parcels of land were given to her and her household by the deceased long before his death. 6.She also states that the deceased was also a shareholder in Katelembo Athiani Muputi Farmers’ Cooperative Society Limited, where he owned approximately two acres of land. She contended that both the shares and the land had been allocated to her house by the deceased before his death. 7.She maintained that the Protestor and his mother’s household had already received their share of the deceased’s estate, and therefore, the Protestor had no valid claim to the remaining assets, which she asserts belong to her and her children. Accordingly, she sought orders confirming the grant of letters of administration intestate issued to her. 8.The Protestor filed an affidavit of protest against the confirmation of grant sworn on 17th January, 2012. The Protestor, who is also an administrator, opposed the summons for confirmation of grant on the ground that the deceased, his father, had two surviving wives, Julian Loko Munguti as the first wife, and Agnes Mumbi Munguti as the second wife. 9.He states that the 1st wife had six children, Alphonse Mutiso, Teresiah N. Mutiso, Patrick Munguti Makau, Martin Mumo Munguti, Fibi Mutiso and Victor Mbithi Mutiso. That the second wife had five children, John Mutuku Mutiso, Jennifer Kitiva Munguti, Mutie Munguti, Makau Munguti and Elizabeth Mutile Munguti. 10.The Protestor listed the deceased’s estate comprising of the following properties;a.Masii/Kithangaini/240b.Masii/Kithangaini/241c.Masii/Kithangaini/211d.Katelembo Athiani Muputi Farmers Parcel of lande.Mtito Andei No. 134f.Plot at Mombasag.Account at Barclays Bank of Kenya, Machakos branchh.Motor vehicle Registration number KQA 177 Peugeot 504 11.The Protestor denied the allegation that his mother Loko sold any parcel of land as claimed by the Petitioner. He stated that neither he nor his siblings currently occupy any parcel of land and that it is the Petitioner who is in occupation of the properties. 12.He further contended that that parcels of land Masii/Kithangaini/240 and Masii/Kithangaini/241 are the properties where his mother had carried out developments before she was allegedly chased away following the divorce. He asserted that he and his siblings are entitled to half share of the deceased estate on the basis that their mother contributed to the acquisition and development of the properties, 13.The protest was canvassed through viva voce evidence. 14.Protestor Witness 1, Juliana Loko Munguti, testified that she was the first wife of the deceased, Boniface Munguti, having been married to him in 1957 under Kamba customary law. She stated that they had six children together, four sons and two daughters, although one daughter is now deceased. She further testified that the deceased later married a second wife, Agnes Mumbi, the Petitioner, with whom he had five children. 15.Juliana stated that the deceased owned several properties listed in her witness statement and contended that these properties formed part of the deceased’s estate. She complained that the Petitioner initiated succession proceedings without consulting her and sought to have the properties registered solely in her own name. PW1 maintained that the estate should instead be shared between the two houses and that her children, being children of the deceased, were entitled to inherit. 16.She denied ever having been formally divorced and asserted that no valid divorce existed that could disentitle her children from inheritance. She further claimed that some of the properties registered in the deceased’s name had originally been acquired through her efforts, including a plot she allegedly purchased before marriage and another property allegedly acquired through a loan she obtained. 17.During cross-examination, she admitted that she was illiterate, had never attended school, could neither read nor write, and ordinarily signed documents using a thumbprint. When shown her witness statement dated 13th November, 2012, she denied having signed or thumb-printed it, prompting counsel for the Petitioner to allege that the statement was a forgery. 18.Regarding her marriage, Juliana explained the Kamba customary marriage process, stating that the deceased paid dowry in the form of goats and that a customary divorce would involve the return of a divorce goat. She testified that the deceased eventually took a goat from her parents’ home without her personally handing it over to him. 19.She further testified that after separating from the deceased, she lived with all her children and that none of the children were born after the separation. She maintained that the deceased continued to recognize the children as his own, and maintained contact with them. She denied suggestions that the deceased had completely severed ties with her and their children. 20.With regard to the estate, she claimed to have purchased land at Katelembo Athiani Muputi prior to marriage, which upon marriage, was registered in the deceased’s name. She also stated that another parcel was acquired using a loan she obtained, although it too was registered in the deceased’s name. She conceded she had no documentary evidence to support these claims, stating that any such documents had either been left with her parents or with the deceased. 21.She also testified about land at Mtito Andei (Kambo), stating that it belonged to the deceased and had never been transferred to her or her children. She denied allegations that she or her son had sold the land. Additionally, she referred to a Mombasa property, asserting that it had been acquired using proceeds from plots in Nairobi and that the deceased had informed her of its ownership structure. She stated that after the deceased’s death, she attempted to prevent the Petitioner from exclusively collecting rent from that property, as the estate belonged to all beneficiaries. 22.Throughout her testimony, she maintained that neither she nor her children had been allocated any portion of the deceased’s estate during his lifetime. Her position was that all the properties registered in the deceased’s name formed part of his estate and should be distributed equally between the two houses. 23.In re-examination, PW1 reiterated that the deceased had always acknowledged her children as his own and had continued to support them. She insisted that neither she nor her children had done anything to justify exclusion from inheritance and maintained that her children were entitled to one-half of the deceased’s estate. She further denied that the Mtito Andei property had ever been transferred to her or her son, and reaffirmed that the deceased never settled her or her children on any land during his lifetime. 24.Protestor Witness 2, Martin Musau Mbondo, testified that he is a cousin of the deceased, Boniface Munguti, their fathers having been brothers. He adopted his witness statement dated 13th November, 2012, as his evidence in chief. He stated that the deceased had two wives, namely Juliana Loko Munguti and Agnes Munguti. 25.He testified that the deceased and Juliana initially lived together and had children. He further stated that the deceased worked as a police driver. After retiring, the deceased engaged in business and acquired two plots. He explained that the deceased built a home for the first wife on one plot and a home for the second wife on the other plot. He maintained that under their custom, the deceased’s estate should be shared between the two houses, that is, Juliana Loko and her children on one hand, and Agnes Munguti and her children on the other. 26.During cross-examination, he confirmed his close familial relationship with the deceased and testified that they had lived on the same ancestral land in Masii before he relocated to Kathiani in 1990 after purchasing his own land there. 27.He testified that Juliana Loko had no child prior to her marriage to the deceased and that the marriage was conducted under Kamba customary law. However, he admitted that he neither participated in the marriage negotiations nor attended the ceremonies and therefore had no direct involvement in the customary rites surrounding the marriage. He further acknowledged that he was not aware of any Kamba customary divorce between Juliana Loko and the deceased, stating that he neither participated in nor witnessed any such proceedings. He only knew that Juliana left the deceased’s home in 1989 following a disagreement but did not know the cause circumstances or severity of the disagreement. 28.With regard to the deceased’s properties, he testified that he knew the deceased owned two plots in Masii, although he did not know their parcel numbers. He stated that the deceased had built separate homes for each wife on those plots and that Agnes Munguti continued to reside in the home built for her by the deceased. He further testified that after Juliana left the matrimonial home, the deceased sold the property where she had been living. He denied suggestions that Juliana herself sold that land. 29.He also referred to a parcel of land at Mtito Andei stating that the deceased had informed him that he had given that land to a son known as Mutua. However, he admitted that he had never visited the land, did not know its location, had no documentary evidence concerning it, and was unaware of when or how it had been acquired. He admitted that he did not know whether Juliana Loko or her children had received any property from the deceased upon separation or divorce. 30.In re-examination, he stated that, to the best of his knowledge, when the deceased died, he had not given Juliana Loko or her children any portion of his estate. 31.Protestor Witness 3, Alphonce Mutiso Munguti, testified that he is the firstborn son of the deceased and Juliana Loko Munguti, the deceased's first wife. He adopted his Affidavit of Protest dated 17th January, 2012, as his evidence in chief and stated that he opposed the proposed distribution of the estate on the basis that his siblings and their mother had been excluded from benefiting. 32.He testified that several assets belonging to the deceased had been omitted from both the Petition and the Summons for Confirmation of Grant including land at Mtito Andei and a property in Mombasa. He maintained that neither he nor his siblings had ever been allocated any land by the deceased and that no property was registered in his name. He further asserted that his mother had never been divorced and that their household had not been allocated any share in the proposed distribution. 33.Alphonce stated that his mother left the matrimonial home in the early 1980s due to persistent threats and intimidation. He recalled first seeing the Petitioner, Agnes Mumbi, at the family compound in the early to mid-1980s, by which time his parents had already acquired several properties together. He contended that the Petitioner had not approached the court with clean hands and maintained that his family was entitled to a share of the estate. 34.During cross-examination, he confirmed that Agnes Mumbi was his father's second wife and his stepmother. He testified that he was born in 1959 and that the deceased married Agnes Mumbi in the early to mid-1980s. He stated that his mother had resided on land at Upper Kiandani in Machakos since the early 1980s, land which he said was registered in her name. 35.He also identified one of the deceased's properties as Masii/Kithangaini/211, which he believed was registered in the deceased's name. He denied knowledge that Agnes Mumbi had been settled on parcels Masii/Kithangaini/240 or 241 and stated that he did not know her place of residence. He maintained that his mother left the matrimonial home due to threats and intimidation allegedly perpetrated by the deceased. 36.He further testified that despite the separation, the deceased continued to support them then and that some of the children continued to visit him. He denied allegations that his mother had sold any household goods, livestock or land belonging to the deceased, attributing such claims to her advanced age and past experiences. He confirmed that his mother had six children with the deceased, one of whom, Teresia Mutiso, is deceased and left children residing in Germany. 37.Regarding the deceased's assets, Alphonce testified that he had previously filed documents relating to a Barclays Bank account held by the deceased and had conducted a search on land parcel No. 134 in Kathekani Settlement Scheme, Mtito Andei. He described the Mtito Andei land as a sizeable agricultural property and stated that neither he nor his mother had been given any interest in it. 38.He further testified that the deceased held shares in Katelembo Athiani and that he intended to establish whether those shares resulted in land allocation. He also stated that the deceased had an interest in a commercial and residential property in Mombasa known as Fourways Towers which was co-owned with several other individuals. He stated the property generated rental income and was managed by an estate agent known as Fourways Accommodation Bureau. 39.He maintained that the rental income should not be paid exclusively to the Petitioner until the court determined the rightful beneficiaries. He denied any knowledge of a customary divorce between his parents. He rejected claims that his father had settled him or his siblings on the Mtito Andei property or that the deceased had communicated such intentions to him. 40.He explained that he only became aware of the Mtito Andei land after conducting an official search in preparation for the succession proceedings. He further testified that although he had been estranged from the deceased for a period, they reconciled in 1995 when the deceased visited him at his workplace in Nairobi. He denied allegations that he had refused to see his father or that the deceased had informed clan members of any intention to settle him and his siblings on the Mtito Andei property. 41.In re-examination, PW3 emphasized that the deceased died in June 1999 and that both the Mtito Andei land and the Mombasa property had been omitted from the succession proceedings. He stated that he had attempted to challenge the issuance of the grant to Agnes Mumbi and reiterated that the rental income from the Mombasa property should not be paid solely to her. 42.He also stated that he had a strong attachment to the Masii land as it constituted his ancestral home and urged the court to award him a share of it. Finally, he maintained that Agnes Mumbi's marriage to the deceased was under Kamba customary law. 43.This marked the close of the Protestor’s witness’s testimony. 44.Agnes Mumbi Munguti, the Petitioner, testified that she resides in Mukuyuni, Kithangaini Village, Masii, Machakos County, where she is a farmer. She stated that she was married to the deceased, Boniface Munguti Mutiso, around 1980 under Kamba customary law. At the time of her marriage, the deceased already had another wife, Juliana Loko Munguti, the mother of the Protestor, Alphonce Mutiso Munguti. 45.The Petitioner, testified that following her marriage, the deceased established a separate homestead for her on land in Kithangaini where she continues to reside. She stated that Juliana Loko also had her a homestead within the same village. According to the Petitioner Juliana's marriage to the deceased was later dissolved and she left the matrimonial home in 1988. 46.The Petitioner further testified that Juliana did not return to the matrimonial home, until after the deceased's death. She alleged that thereafter Juliana sold a parcel of land and referred to Juliana’s own testimony as confirmation of that fact. She maintained that Juliana had already benefited from property allocated to her during the deceased's lifetime. 47.The Petitioner relied on her Affidavit in Support of the Summons for Confirmation of Grant dated 2nd December, 2011, as evidence of the assets comprising the deceased's estate. She testified that the deceased owned three parcels of land in Masii. According to her, two of those parcels, namely Masii/Kithangaini Nos. 240 and 241, were intended for her, while another parcel belonged to Juliana Loko. 48.She further stated that the deceased had allocated to her the Katelembo Athiani property, which remains intact and unsold. With respect to the Mtito Andei property, the Petitioner testified that the deceased had informed her that the land belonged to Juliana Loko and her family. She stated that the deceased personally took her to the land and explained that it had been set aside for Juliana's household. On that basis, she maintained that Juliana and her children had been provided for and should not make any further claim against the estate. 49.The Petitioner also acknowledged the existence of a Mombasa property jointly owned by the deceased and other individuals, namely Maingi Kinuthia and Ndambuki Mangeli, both now deceased. She testified that the property generated rental income through an estate agent but payment of her share of the rental income had been stopped due to the present succession dispute and following intervention by Juliana Loko. 50.She explained that the rental income had been her only source of livelihood after the deceased's death and complained that, while the families of the other co-owners continued receiving their shares, she was no longer receiving hers. The Petitioner further testified that the deceased owned a motor vehicle, which remained at home. 51.She reiterated her claim that Juliana had sold the land allocated to her, identifying it as Plot No. Masii/Kithangaini/211, although she admitted that she had no documentary evidence to support that assertion. In support of her case, she produced a letter dated 15th July, 1977, from Kenya Commercial Bank and relied on the contents of her affidavit filed in the succession proceedings. 52.During cross-examination, the Petitioner conceded that Juliana's children were indeed children of the deceased and acknowledged their legal right to inherit from their father. She also confirmed that parcels Masii/Kithangaini Nos. 240 and 241 remained registered in the deceased's name. However, she maintained that those properties should not be distributed equally among all beneficiaries, asserting that Juliana and her children had already received their share during the deceased's lifetime. 53.The Petitioner testified that she had disclosed all the deceased's properties in the succession proceedings, though she acknowledged difficulty recalling certain details due to the passage of time. She confirmed the existence of the Katelembo Athiani property, estimating it to measure approximately one and a half acres. She also stated that she did not know the amount held in the deceased's bank accounts or who had withdrawn the funds. 54.She maintained that the Mombasa property had been allocated to her by the deceased, although she acknowledged that it was jointly owned with others. She insisted that the property did not belong to Juliana Loko. Finally, she stated that the deceased had subdivided and allocated his properties before his death, although the titles remained registered in his name. 55.Petitioner’s Witness No. 2, Makau Muthusi testified that he had recorded a witness statement dated 22nd March, 2017, which he adopted as his evidence in chief. He also produced an agreement dated 11th September, 1988, between Juliana Loko Munguti and the deceased, Boniface Munguti Mutiso, which was admitted as Petitioner’s Exhibit 2. 56.During cross-examination, he stated that he was a cousin of the deceased and that they spent a considerable amount of time together. He testified that on 11th September, 1988, he accompanied the deceased and other family members to the home of Juliana Loko's parents at Mathethia. According to him, he personally recorded the contents of the agreement executed on that date. 57.He explained that although the document did not expressly indicate that he was the author, the handwriting appearing on it was his. He maintained that both the deceased and Juliana Loko signed the agreement in his presence and identified the signatures on the document as theirs. He insisted that the signature attributed to Juliana Loko was genuine. He further described Juliana Loko as a stubborn person. 58.With regard to the deceased's assets, DW2 acknowledged the existence of land at Mtito Andei, which he stated belonged to the deceased and estimated to be approximately 15 acres, although he could not recall the parcel number. He conceded that this property had not been disclosed in the succession proceedings, despite his knowledge of its existence. He further acknowledged that land parcel Masii/Kithangaini/211 had similarly not been included among the disclosed assets. 59.Notwithstanding these omissions, he maintained that the agreement produced in Court bore the genuine signatures of both the deceased and Juliana Loko. He further conceded that all the deceased children were entitled to inherit. He also stated that Alphonce Mutiso, the deceased’s son and the Protestor had advised the family to commence succession proceedings following the deceased's death. 60.Petitioner’s Witness No. 3, Aliasgar Patwa Amir testified that Fourways Accommodation Bureau had been run by his late uncle. He stated that he was a real estate agent and that his role was to ensure that the rightful beneficiaries received funds held by the firm. 61.He testified further that he is aware of the estate of Boniface Munguti Mutiso and had made efforts to engage the family. He informed the Court that the firm was holding approximately Kshs 6, 035, 690/=. He added that he could request the firm’s accountant to produce a detailed statement of account. He also testified that the firm held title to plot title No. 157 Mombasa. 62.Petitioner’s witness No. 4, Joseph Njagi Githinji, testified that he is the Land Adjudication and Settlement Officer, stationed at Kibwezi. When referred to a letter dated 24th February, 2026, and 20th October, 2005, he testified that the latter was a letter of offer for settlement plot No 134 in Kathekani Settlement issued to Boniface Munguti Mutiso. He confirmed that both letters originated from their office and produced them as Petitioner’s Exhibits 3 and 4. 63.During cross-examination, he testified that he has been stationed at Kibwezi office since 2004. He confirmed that he was aware that Boniface Munguti was deceased but did not know who his successors were. 64.In re-examination, he stated that their office maintains a record keeping system dating back to before 2005. 65.Upon conclusion of the Petitioner’s case, parties filed their submissions. The Protestor’s submissions are dated 22nd May, 2023, while the Petitioner’s submissions are dated 25th March, 2026. Protestor’s submissions 66.The Protestor's submissions begin by outlining the background of the succession proceedings. He contends that the Petition filed on 28th March, 2001, deliberately omitted the names of the deceased's children from the first house. According to the Protestor, the following beneficiaries were excluded: Alphonce Mutiso (the Objector); Teresia Mutiso (deceased); Patrick Makau Munguti; Martin Mumo Munguti (deceased); Phoebe (Fibi) Mutiso; and Victor Mbithi. 67.The submissions then trace the procedural history of the matter. It is stated that on 13th November, 2001, the Petitioner, through her advocates, filed an application seeking leave and directions on the distribution of the estate. On 12th April, 2002, the parties consented to directions that the dispute be determined by viva voce evidence. 68.The hearing commenced on 30th July, 2004, during which the Objector testified and explained the basis of his claim, that is why he and his siblings were entitled to benefit from the estate. He was cross-examined by counsel for the Petitioner. 69.The Protestor submits that an application dated 13th November, 2001, was eventually withdrawn and the Petitioner was directed to file Summons for Confirmation of Grant within thirty days. Following service of the summons, the Protestor filed an Affidavit of Protest dated 17th January, 2012, in response to the Summons for Confirmation of Grant dated 2nd December, 2011. The matter subsequently proceeded by way of oral evidence pursuant to directions issued on 11th November, 2015. 70.Based on the evidence adduced, the Protestor submits that the assets forming part of the deceased's estate are: Land Parcel Masii/Kithangaini/240; Land Parcel Masii/Kithangaini/241; Land Parcel No. 134 at Kathekani/Ngai Ndethya Settlement Scheme, Mtito Andei; A one-third share in Mombasa Plot No. 157/xx; and Compensation funds arising from the acquisition of part of the Mtito Andei property for the Standard Gauge Railway (SGR) project. 71.He further submits that any other assets previously owned by the deceased were disposed of during his lifetime and therefore do not form part of the estate available for distribution. 72.On the applicable law, the Protestor argues that the Petitioner commenced the succession proceedings without full disclosure of all the deceased's dependants and beneficiaries. He relies on Rule 40(6) of the Probate and Administration Rules which permits any person objecting to confirmation of a grant to file an affidavit setting out the grounds of objection. 73.The Protestor also submits that although the hearing had substantially concluded by 7th September, 2022, the Petitioner sought an adjournment to produce additional evidence. The court granted the adjournment in consideration of her advanced age and marked it as the final adjournment. He contends that despite further opportunities, the Petitioner has failed to conclude her case, thereby delaying the final determination of the matter. Consequently, the Protestor urges the Court to proceed to determine the identities of the beneficiaries and their respective shares in the estate. 74.On whether the Protestor and his siblings are entitled to inherit from the estate, reliance is placed on Sections 27, 28 and 29 of the Law of Succession Act. The Protestor submits that where a deceased person fails to make reasonable provision for a dependant, the court is empowered to make such provision from the estate as it deems fit. He further argues that under Section 29, a former wife remains a dependant for purposes of succession irrespective of whether she was being maintained immediately prior to the deceased’s death. Accordingly, Juliana Loko Munguti remains a dependant of the deceased regardless of whether a customary divorce occurred. 75.The Protestor also invoked Section 79 (b) of the Law of Succession Act, contending that concealment of material facts and the making of false statements constitute grounds for revocation of a grant. He argues that the omission of the deceased's children from the first house amounted to concealment. In support of this position, reliance is placed on the decision in Joseph Moswaqi Mabeya v Alfred Gichana & 4 Others [2016] eKLR where the High Court held that the omission of a dependant from succession proceedings is sufficient ground for setting aside a grant and redistributing the estate. The Protestor submits that the same principle applies in this case. 76.The Protestor emphasizes that the dispute has been pending for an inordinately long period and urges the Court to bring the litigation to a close so that the parties may achieve finality and enjoy the estate without further delay. 77.With respect to distribution, the Protestor proposes the following mode of distribution of the estate:i.Land Parcel Masii/Kithangaini/240 to be allocated to the Petitioner, Agnes Mumbi Munguti, in trust for her family;ii.Land Parcel Masii/Kithangaini/241 to be similarly allocated to the Petitioner in trust for her family;iii.The deceased's one-third share in Mombasa Plot No. 157/xx to be shared between the Petitioner and the Objector, each holding their respective interests in trust for all the beneficiaries;iv.Land Parcel No. 134 at Kathekani/Ngai Ndethya Settlement Scheme, Mtito Andei, to be allocated to Alphonce Mutiso in trust for the beneficiaries from the first house, namely Alphonce Mutiso, Patrick Munguti, Phoebe (Fibi) Mutiso and Victor Mbithi;v.Compensation monies arising from the acquisition of part of the Mtito Andei property for the SGR project to be distributed among the same beneficiaries from the first house. Petitioner’s submissions 78.The Petitioner begins by outlining the background of the dispute and identifies four principal issues for determination namely; who the beneficiaries of the deceased's estate are; what constitutes the free property of the deceased; whether the protest is merited; and the appropriate mode of distribution of the estate. 79.The Petitioner addressed the legal duty of the Succession Court submitting that under the Law of Succession Act, the court is mandated to identify the assets comprising the estate, determine the beneficiaries and persons beneficially entitled, and thereafter distribute the estate. The Petitioner emphasizes that the matter has been pending since approximately 2001 and that the estate has remained unsettled for over two decades. The court is therefore urged to bring the proceedings to a conclusion so that the beneficiaries may achieve closure. 80.On the question of beneficiaries, the Petitioner relies on Section 29(a) of the Law of Succession Act which defines dependants to include the wife or wives, former wife or wives, and children of the deceased, whether or not they were being maintained immediately before death. She submits that it is undisputed that the deceased first married Juliana Loko and later married Agnes Mumbi and that both unions produced children. Accordingly, the Petitioner concedes that both households fall within the ambit of Section 29(a) of the Law of Succession Act and are entitled to recognition as beneficiaries of the estate. 81.On the extent of the Deceased's Estate, the Petitioner relies on the definition of "free property" contained in Section 3 of the Law of Succession Act, submitting that only assets registered in the deceased's name at the time of his death and over which he retained power of disposition form part of the estate available for distribution. She notes that in the Summons for Confirmation of Grant dated 2nd December, 2011, she identified two parcels of land for distribution, that is, Land Parcel No. Masii/Kithangaini/240 measuring approximately 4.8 hectares; and Land Parcel No. Masii/Kithangaini/241 measuring approximately 4.4 hectares. 82.She explains that these were initially the only disclosed assets because she believed that the first house had already been allocated substantial land in Kibwezi (Mtito Andei) during the deceased's lifetime. She adds that the deceased personally showed her the land and informed her that it belonged to Juliana Loko and her children. 83.The Petitioner further submits that Juliana Loko admitted during her testimony to having sold land still registered in the deceased's name to raise legal fees. It is argued that this constituted intermeddling with the estate contrary to Section 45 of the Law of Succession Act and should be condemned by the court. She contends that despite asserting entitlement to additional assets, the Protestor and his witnesses failed to conclusively prove that those assets formed part of the deceased's estate. In her view, it was the Petitioner who took steps to establish ownership of the disputed properties by calling independent witnesses and producing official records. 84.In particular, the Petitioner called the Land Adjudication and Settlement Officer, Kibwezi, Mr. Joseph Njagi Githinji, (PW4) whose testimony confirmed that Plot No. 134 at Kathekani Settlement Scheme measuring approximately 7.32 hectares was registered in the deceased's name. She also called the Manager of Fourways Accommodation Bureau, (PW3) who confirmed that the deceased owned a one-third share in Plot No. 157 Section XX, Mombasa. 85.The witness further testified that the property generated rental income but that payment of the deceased's share had been halted following instructions issued by the Protestor, through his advocates. He confirmed that the accumulated rental proceeds exceeded Kshs. 6,000,000/= and had been deposited in court pending determination of the succession proceedings. 86.The Petitioner then addresses the Protestor's claim regarding compensation allegedly payable in respect of Plot No. 134 for the Standard Gauge Railway (SRG) project. She submits that no evidence was produced to prove the existence, amount or payment of such compensation. Reliance is placed on the decision of Moi v Muriithi & Another [2014] KECA 642 (KLR) in which the Court of Appeal held that submissions cannot substitute evidence. The court is therefore urged to disregard the claim relating to SGR compensation for lack of evidentiary support. 87.On the basis of the evidence adduced, the Petitioner submits that the deceased's estate consists of the following assets:- Land Parcel No. Masii/Kithangaini/240; Land Parcel No. Masii/Kithangaini/241; Plot No. 134 Kathekani Settlement Scheme; the deceased's one-third share in Plot No. 157 Section XX, Mombasa; and shares and benefits held in Katelembo Athiani Muputi Farmers' Co-operative Society. 88.On whether the protest is merited, the Petitioner relies on Section 107 of the Evidence Act and the decision in In re Estate of Grace Wanjiru Mucheru (Deceased) [2023] KEHC 25306 (KLR), submitting that the burden of proof lies with the Protestor, as the party who initiated the Protest proceedings. She argues that the Protestor alleged omission of several assets but failed to provide sufficient evidence demonstrating that those properties belonged to the deceased. 89.The Petitioner further submits that the Protestor's case is weakened by the fact that it was she who ultimately procured and produced evidence establishing ownership of the disputed assets. She contends that the Protestor relied largely on speculation and assumptions rather than documentary proof. Similarly, she argues that there was no evidence to support Juliana Loko's claim that she obtained a bank loan used to acquire property later registered in the deceased’s name. 90.Accordingly, the Petitioner submits that the Protest lacks merit and that the Protestor failed to discharge the burden of proof. The court is therefore urged to dismiss the Protest. 91.On the proposed mode of distribution, the Petitioner submits that, given the Protest’s lack of merit, the distribution proposed by the Protestor should not be adopted. However, she acknowledges that the deceased was polygamous and that distribution should therefore be guided by Section 40 of the Law of Succession Act, subject to the particular circumstance of the case. 92.Reliance is placed on the decision of Scolastica Ndululu Suva v Agnes Nthenya Suva [2019] KECA 1053 (KLR) where the Court of Appeal held that although section 40 provides a framework for distribution in polygamous estates, the court retains discretion to consider the unique facts of each case in order to achieve a fair and equitable outcome. 93.The Petitioner urges the court to consider that Juliana Loko admitted to having sold property belonging to the deceased, including land at Masii and property associated with Katelembo Athiani Muputi Farmers' Co-operative Society. It is argued that such conduct amounted to intermeddling with the estate and should be taken into account in determining equitable distribution. 94.The Petitioner proposes the following mode of distribution;i.Land Parcels Masii/Kithangaini/240 and Masii/Kithangaini/241 to be registered in her name Agnes Mumbi Munguti to hold in trust for herself and her children;ii.The deceased’s 1/3 share of Mombasa Plot No. 157/xx be shared to be shared between the 1st and 2nd house respectively in the ratio of 1:5;iii.Plot no. 134 Kathekani Settlement scheme and any accruing benefits therefrom (subject to struct proof) be held by the Petitioner and Objector in trust for all the beneficiaries. 95.In conclusion, the Petitioner urges the court to distribute the estate on the basis of proven facts rather than mere assertion. Analysis and Determination 96.I have carefully considered the summons for confirmation of grant, the supporting affidavit, the affidavit of protest, the viva voce evidence adduced by the parties, as well as the rival written submissions. From the foregoing, the issues that arise for determination are;-a.Whether Juliana Loko Munguti and her children are beneficiaries of the deceased's estate.b.What constitutes the free property of the deceased available for distribution.c.Whether the Protestor has established that the alleged omitted properties form part of the deceased's estate.d.What is the appropriate mode of distribution. 97.On the first issue, there is no dispute that Juliana Loko Munguti was the deceased's first wife under Kamba customary law and that six children were born of that union. It is equally undisputed that the deceased subsequently married Agnes Mumbi Munguti under Kamba customary law and that their union was also blessed with children. 98.The Petitioner contends that Juliana Loko's marriage to the deceased was dissolved through a customary divorce in 1988, following which she left the matrimonial home permanently together with her children. It is further asserted that her house was provided for during the deceased's lifetime and is therefore not entitled to any further share of the estate. 99.The Protestor and Juliana Loko however, maintain that no valid customary divorce occurred. Their position is that Juliana was forced out of the matrimonial home and that neither she nor her children received any share of the deceased's estate during his lifetime. 100.Even assuming that a customary divorce did occur, such separation does not in law disentitle Juliana Loko or her children from inheriting from the estate. Section 29(a) of the Law of Succession Act expressly recognizes "former wife or wives" as dependants. Further, children remain beneficiaries of a deceased parent irrespective of the marital status of their parents. Notably, the Petitioner conceded during cross-examination that Juliana's children were indeed children of the deceased and have a right to inherit their father's property. Similarly, Makau Muthusi, (PW2) acknowledged that all the deceased’s children have a right to benefit from the estate. 101.Accordingly, this Court finds that the beneficiaries of the estate comprise both houses namely:a.First House- Juliana Loko Munguti, Alphonce Mutiso Munguti, Patrick Makau Munguti, Phoebe (Fibi) Mutiso, Victor Mbithi Mutiso, the estate of Teresiah Mutiso and the estate of Martin Mumo Munguti.b.Second House- Agnes Mumbi Munguti and five children, John Mutuku Mutiso, Jennifer Kitiva Munguti, Mutie Munguto, Makau Munguti and Elizabeth Mutile Munguti. 102.This Court therefore rejects the contention that the first house is excluded from inheritance by reason only of separation or an alleged customary divorce. 103.On the second issue, Section 3 of the Law of Succession Act, defines free property as property which the deceased was legally competent to freely dispose of during his lifetime and in respect of which his interest had not terminated by the time of death. The starting point is the material placed before the court. 104.The Summons for Confirmation of Grant dated 2nd December, 2011, identified only Land Parcel No. Masii/Kithangaini/240 and Land Parcel No. Masii/Kithangaini/241. The supporting documents comprised land certificates relating to those two parcels. The Protestor sought to expand the estate by including additional assets, namely Masii/Kithangaini/211, Mtito Andei Plot No. 134, Mombasa Plot No. 157 Section XX, Katelembo Athiani property, Barclays Bank account, Motor Vehicle KQA 177 and alleged SGR compensation funds. 105.The evidentiary basis for some of these assets is inadequate. In respect of parcel Masii/Kithangaini/211, no documentary proof of ownership was produced. Although several witnesses referred to the parcel, there is insufficient documentary evidence establishing ownership by the deceased at the time of death. Similarly, no documentary evidence was produced regarding the alleged Barclays Bank account, the alleged motor vehicle, or the alleged Katelembo Athiani land. While witnesses referred to these assets, in oral testimony, such assertions without corroborative documentation fall short of the required evidentiary threshold. 106.However, a different conclusion emerges in respect of:(a)Plot No. 134 Kathekani Settlement Scheme (Mtito Andei)PW4, the Land Adjudication and Settlement Officer, produced official records confirming that Plot No. 134 Kathekani Settlement Scheme was allocated to and registered in the name of Boniface Munguti Mutiso. This evidence emanating from a public office, was neither controverted nor impeached. The Court is therefore satisfied that Plot No. 134 formed part of the deceased's estate.(b)One-third share in Plot No. 157 Section XX MombasaPW3 confirmed that the deceased owned a one-third share in the Mombasa property and that rental proceeds exceeding Kshs. 6,000,000/= had accumulated and been deposited in court pending determination of this cause. 107.The existence and ownership of this property were admitted by both parties. This Court accordingly finds that the deceased's one-third share in Plot No. 157 Section XX Mombasa, together with the accrued rental income, forms part of the estate. 108.Consequently, this Court is satisfied that the assets proved to constitute the estate are Masii/Kithangaini/240, Masii/Kithangaini/241, Plot No. 134 Kathekani Settlement Scheme and the deceased's one-third share in Plot No. 157 Section XX Mombasa together with accrued rental income. 109.As regards the alleged SGR compensation, no documentary evidence was produced to establish acquisition, valuation, or payment for compensation. This Court therefore agrees with the Petitioner's submission that submissions cannot take the place of evidence. The claim regarding SGR compensation therefore remains unsubstantiated and is rejected. 110.For the avoidance of doubt, and in recognition of the possibility that additional documentary evidence may emerge, this Court directs that should any party subsequently obtain credible and verifiable evidence establishing that any of the properties disregarded herein belonged to the deceased at the time of his death, such party shall be at liberty to move the court by appropriate application for inclusion of such property in the estate and for consequential orders on its distribution. This Court retains jurisdiction to consider such applications in order to ensure that the estate of the deceased is fully and justly administered in accordance with the law. 111.On the third issue, the Protestor successfully demonstrated that the initial petition omitted beneficiaries from the first house, a fact evident from the pleadings. However, this omission was cured by the participation of the Protestor and the subsequent proceedings. 112.As regards omitted assets, the Protestor only partially succeeds. While several alleged assets were not proved, evidence ultimately established the existence of Plot No. 134 Kathekani Settlement Scheme and the Mombasa property indeed belonged to the deceased. Notably, the decisive documentary evidence in respect of these assets was produced through the Petitioner's own witnesses. Nevertheless, the court's duty is to ascertain the true estate irrespective of the source of evidence. 113.The Protest therefore succeeds to the extent that it established the existence of additional estate assets beyond those initially disclosed 114.On the mode of distribution, it is not disputed that the deceased died intestate and was polygamous. Accordingly, Section 40 of the Law of Succession Act applies. 115.The Petitioner contends that the first house had already been provided for during the deceased’s lifetime. However, this assertion is unsupported by documentary evidence demonstrating transfer or settlement to any of the property. The Court therefore cannot conclude that the first house had already received its inheritance. At the same time, the Court must take cognizance of the reality that Agnes Mumbi and her children have occupied parcels no’s 240 and 241 for decades and have developed the property as their home. 116.An equitable distribution must therefore balance the legal entitlement of both houses and the factual occupation on the ground. The proposal advanced by the Protestor allocating parcels 240 and 241 to the second house to remain with the Petitioner's house while Plot No. 134 be allocated to the first house, achieves a fair balance and is consistent with both the evidence and the principle of equity. 117.Accordingly, I make the following orders;a.The protest succeeds in part.b.The estate of Boniface Munguti Mutiso comprises;Land Parcel No. Masii/Kithangaini/240;Land Parcel No. Masii/Kithangaini/241;Plot No. 134 Kathekani Settlement Scheme (Mtito Andei) andThe deceased's one-third share in Plot No. 157 Section XX Mombasa together with all accrued rental income held on behalf of the estate.c.Land Parcel No. Masii/Kithangaini/240 shall devolve to Agnes Mumbi Munguti in trust for herself and the beneficiaries of the second house.d.Land Parcel No. Masii/Kithangaini/241 shall devolve to Agnes Mumbi Munguti in trust for herself and the beneficiaries of the second house.e.Plot No. 134 Kathekani Settlement Scheme shall devolve to Alphonce Mutiso Munguti in trust for the beneficiaries of the first house.f.The deceased's one-third share in Plot No. 157 Section XX Mombasa together with the rental proceeds held by Fourways Accommodation Bureau and deposited in court shall be shared equally between the first and second houses, each house holding its respective share for the beneficiaries therein. 118.Each party shall bear their own costs in view of the family nature of the dispute. 119.Orders accordingly. DELIVERED, DATED AND SIGNED VIRTUALLY THIS 12TH DAY OF JUNE, 2026RHODA RUTTOJUDGEIn the presence of;Court Assistant: SelinaMr. Nyamai holding brief for the firm of Nzei for the Petitioner