https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8253

**** **REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT MAKUENI** **SUCCESSION CAUSE NO. 22 OF 2017** **IN THE MATTER OF THE ESTATE OF USWII MUTYAUVYU (DECEASED)** MWIKALI NZOMA USWII ………CO-ADMINISTRATOR/PROTESTOR **VERSES** NTHANGO MDAMBUKI MUKUSYO ……………………..1ST APPLICANT NZISIVA KILUNGU ……………………………………….…2ND APPLICANT NDUKI MAKEMU A.K.A. LOKO MAKEMU MUTUKI..3RD APPLICANT NG’ANGUI MUTUNGA KATEI……………………..………4TH APPLICANT **JUDGMENT** 1. This matter began as Machakos Succession Cause No. 13/2008 2. In the matter of the estate of Uswii Mutyauvyu who died on 22/7/1982 vide a letter dated 12/9/06 the chief Kalamba Location wrote the Deputy Registrar Machakos listing the names of the beneficiaries of the estate of the deceased: Nganda Uswii – 1st wife, deceased Mbulwa Uswii – 2nd wife deceased Muia Uswii – Son, deceased Nzomi Uswii – Son, deceased Ndonde Uswii – Wife of Muia Uswii Nzioki Mwakavi – Daughter, married Ng’angui Mutunga – Daughter, married Nthango Ndambuki – Daughter, married Nzisiva Kilungu – Daughter, married Nduki Makemu – Daughter, married 1. His estate was listed as Nzaui/Nziu/111. 2. Ndonde Muia Uswii applied for grant of letters of administration for the estate. The record shows that Ng’angui, Nzioki, Nthango, Nzisiva & Nduki gave their consents for the appointment as administrators. She was issued with grant of letters of administration on 26/2/2007. 3. A certificate of confirmation of the grant was issued on 26/2/2009 – and the property Nzaui/Nziu/111 was given to Ndonde Muia Uswii. 4. A rectified certificate of confirmation of grant was issued on 17/4/2012 where the property Nzaui/Nziu/618 was given to Peter Mutanya Maliti. 5. By summons for Revocation and annulment of grant dated 9/9/2013, Nthango Ndambuki Mukusyo sought the revocation of the grant. On 24/11/2016, the court issued the following orders:- 6. **THAT**, the summons for Revocation and annulment of grant dated 9th September 2016 is hereby allowed. 7. **THAT** the grant of letters of administration issued to Ndonde Muia Uswii on 22nd October 2007 and Certificate of Confirmation of grant issued to Ndonde Muia Uswii with respect to the estate of Uswii Mutayauvyu on 9th November 2012 are hereby revoked. 8. **THAT** all consequent dealings, and transfers of the deceased property namely Nzaui/Nziu/111 and Nzaui/Nziu/618 are accordingly cancelled. 9. **THAT** the registration and legal position as regard the said properties shall revert to the situation obtaining as at the time of the deceased death on 22nd July 1982. 10. On 17/2/2017 the matter was transferred to Makueni and attained the number Succession cause 22/2017. 11. By an application filed on 7/12/2017, Nthango Ndambuki Mukusyo filed summons for confirmation of grant – deponing that the grant was made to her as the administrator on 22/6/17. 12. She listed the same beneficiaries as the persons who survived the deceased and stated that the beneficiaries and their shares had been identified as follows:- 13. Nganda Uswii - 1st wife (deceased) 14. Nzomi Uswii - Son (deceased) 15. Muia Uswii - Son (deceased) 16. Nzioki Uswii - Daughter (deceased) 17. A Preliminary Objection was filed on 22/3/18 to the effect that there was no grant of letters of administration annexed to the application – this Preliminary Objection was filed by Mwikali Nzomi Uswii. 18. In response Nthango filed copy of the grant issued to Mwikali. Nzomi Uswii and herself on 22/6/2017. 19. In the Replying Affidavit filed on 26/4/18 – she averred that deceased had 2 houses – House of Mbulwa, house of Nganda; that house of Mbulwa had 3 children – Nthango, Nduki and Nzisiva, the house of Nganda had Ng’anguu, Muia & Nzomi, and Nzoki and that Mwikali Nzomi was child of Muia – and that the estate to be shared equally between the 2 houses, whereby Mwikali would hold the ½ for Nganda on behalf of her siblings. 1. Mwikali opposed the proposal to distribute the estate by Nthango sating in her affidavit of 20/9/18 – 2. The said **Nthango Ndambuki and my late father (Nzomi Uswii) are children of the deceased, BUT** from different houses (mothers). 3. Land parcel **No. NZAUI/NZIU/111 belongs to my father’s house/family as Nthango Ndambuki Mukusyo, her siblings and their late mother have long sold their share thereof to my father’s house**. 4. Nthango Ndambuki Mukusyo and her siblings CANNOT purport to claim any form of interest in the aforesaid **parcels of land or the sub-divisions thereof**. 5. The applicant has **NOT** listed all the properties of the deceased. 6. People **NOT** **related to the deceased have been listed as beneficiaries**. 7. In a further affidavit filed on 28/2/2019 she deponed; 8. That the petitioner and initial administrator herein, **NDONDE** **MUIA USWII**, was my mother; and the grant issued to her **had long been confirmed and administration process substantially undertaken**. 9. That the deceased, **USWII MUTYAUVYU** (deceased) had two wives (houses): namely 10. **Nganda Uswii, and** 11. **Mbulwa Uswii** 12. **FIRST HOUSE** 13. Nganda Uswii (1st wife – deceased). 14. Nzomi Uswii (son – deceased). 15. Nzioki Uswii (son – deceased). 16. Muia Uswii (son – deceased). 17. Ng’angui Mutunga (daughter – alive). 18. **SECOND HOUSE** 19. Mbulwa Uswii (2nd wife – deceased). 20. Nthango Ndambuki (daughter married). 21. Nduki Makemu (daughter – married). 22. Nzisiva Kilungu (daughter – married). 7. **THAT** although the deceased’s un-administered estate/properties should ordinarily be shared out between the deceased’s two (2) houses Nthango Ndambuki and her afore-named sisters from the 2nd house substantially sold their share to the 1st house over the years, as there was a longstanding agreement that the first house (my mother and her children) takes care of the deceased’s 2nd wife (Mbulwa Uswii) for life as she had been left at her home alone after her daughters were married off, and that in consideration of this expenses and effort covering many years, the deceased’s 1st house would take the 2nd house’s share of the deceased’s land and/or a substantial part thereof. 8. **THAT** pursuant to the aforesaid agreement, the deceased’s 1st house (my mother Ndonde Muia Uswii) took care of the deceased’s 2nd wife (Mbulwa Uswii) and footed all her medical expensed for life. 10. **THAT** pursuant to confirmation of grant held by my said mother (the petitioner herein), she commenced the administration process whereupon the deceased’s land parcel No. NZAUI/NZIU/111 was sub-divided. (Hereto annexed and marked MN – (a) is a copy of the confirmed grant dated 26/2/2009). 12. THAT before sub-division as aforesaid, land parcel No. NZAUI/NZIU/111 measured approximately 3.4 hectares. (Hereto annexed and marked MN – (b) is a copy of a certificate of official search dated 21/9/2007). 13. **THAT** prior to his death, the deceased herein had sold his land parcel NZAUI/NZIU/618 to Peter Mutanya Maliti, and this land has since been transferred to him by my mother (the petitioner) herein before her death as aforestated. (Hereto annexed and marked MN – (c) is a copy of a certificate of official search). 14. **THAT** it has turned out that the deceased had sold only a portion of the said land (NO. NZAUI/NZIU/618 but not the whole parcel. Nthango Ndambuki and her aforesaid sisters have informally hived off the unsold portion and subsequently purported to sell it to a third party. They should make a full disclosure on this issue. 15. **THAT** the sub-division of land parcel No. NZAUI/NZIU/111, which still remain in my mother’s name (the former administrator, and which are shown to have been cautioned by stranger/imposter (one Ndambuki Mukusyo “USUI”) are land parcel) NOS. NZAUI/NZIU/946 and NZAUI/NZIU/945. (Hereto annexed and marked MN – (d) and MN – (e) respectively are copies of certificate of official search). 16. **THAT** I verify believe that in view of all the foregoing, the aforesaid two (2) parcels of land should be given to the deceased’s 1st house (my house). 1. Nthango responded under affidavit filed on 30/4/2019 and deponed as follows:- 4. **THAT** the grant which had been issued before was revoked and annulled by the court meaning any title issued pursuant to the revoked grant collapsed. 5. **THAT** the effect of the revocation and annulment of the grant had the effect of nullifying any title deed that may have been issued pursuant to the grant. 6. **THAT** the court granted the new grant of letters of administration to me with the protestor but the protestor chose to be un co-operative and unpredictable towards having a common schedule of distribution being led by greed to dis inherit rightful beneficiaries of the deceased. 7. **THAT** the mere fact that daughters of the 2nd house are married is not a bar to them to getting a share of their father’s estate as the protestor wants the court to belief. 9. **THAT** I have never had any agreement with the protestor or her deceased father that the 1st house would take the 2nd house’s share. 10. **THAT** we have never sold our share to the 1st house as alleged and dare the protestor to produce the sale agreement. 11. **THAT** we cautioned the title deed when we discovered there were attempt to sell the same as we battled in court to have the grant revoked. 12. **THAT** the deceased did not sell any of his properties before his demise and any sale done pursuant to the revoked grant is null and void since the administrator had no capacity to sell any property of the estate and dare the protestor to produce the alleged sale agreement if any. 1. On 18/6/2025, the three sisters Nthango, Nzisiva and Nduki swore a joint affidavit. They reiterated that Mwikali Nzomi Uswii was the daughter to their stepbrother Muia Uswii who was survived by his wife Ndonde. They deponed – 4. **THAT** we attended to our sick mother all through at home thus no medical expenses was incurred and after he demise, she was preserved with sand at her house and thus no morgue expenses was incurred concerning her burial. 5. **THAT** before the demise of our late mother, she had married a concubine namely Wavinya and she settled in our mother’s land but later on the family of Ndonde Muia destroyed her house and she disappeared due to land dispute. 6. **THAT** Ndonde Muia Uswii started interfering with our stay in our mother’s land and the clan came and subdivided the land into two shares. One share for our late mother (Mbulwa) and the other to Nganda Uswii. 22 Euphorbia tree pieces was planted by the clan elders to mark out the boundaries. 7. **THAT** we never at any given time consented and/or acknowledged receipt of any purchase price for the land of our late mother and wish to request for forensic analysis towards our signatures on the agreements adduced as list of documents by the protestor herein and we highly doubt the said agreements as it does not hold any of our identity card numbers, we are not learned hence cannot scribble our signatures as evident in the adduced agreement. 8. **THAT** no Government Officer was present during the said transactions and the thump prints differs in the submitted copies. 9. **THAT** why was the said agreements shifted from medical attention to land sale, our mother was alive during those transactions and she was not involved. 10. **THAT** a dispute was filed with the Lands Tribunal Court as CASE No. 45 of 2006 on 6th July 2006 and the same made a decision which was adopted as the Court Judgment and subsequently an Order from the High Court of Kenya at Machakos issued directions that, the title deed Nos. Nzaui/Nziu/111 and Nzaui Nziu/618 to revert to the situation obtaining as at the time of deceased death on 22/7/1982 and a certificate of Confirmation of a Grant issued on the 26th day of February 2009 to Ndonde Muia Uswii was also revoked on the 9th December 2016. 1. They also recorded a joint statement which was filed on 19/5/2025. They filed the proceedings of the Makueni District Land Dispute Tribunal Court case No. 45/2006 dated 6/7/2006 where after they heard the three sisters, and the mother to the protester and her witnesses were heard – the tribunal made the following award – 2. *The claimants to possess their mother’s share in the disputed land;* 3. *The tribunal recommends subdivision of the disputed land by the survey. The provincial administration to supervise the exercise.* 4. *The objector to meet the cost of the suit.* 5. *Any party aggrieved by the decision has 30 days right of appeal to the LDAC*. 6. The protest was heard by way of viva voce evidence. **The Objector’s Case** 1. OW1 was Mwikali Nzomi. She testified that she came into the matter after the death of her mother Ndonde. She said she filed the protest against the distribution proposed by her co-administrator. 2. Her position is that the parcel of land 111 was sold to her family by the family of Nthango – that they asked for money to take their mother to hospital, and in exchange, gave them their share of the land. 3. She said that the land was subdivided into 2 parcels, No. 945 & No. 946. She said it was her mother who had subdivided the land. She claimed that she was the only one living on the said land. 4. On cross-examination she said that the three sisters sold the land to her son Kizito, that there were witnesses but some were already dead. She claimed that the village elder was present, that she had witnesses, she claimed that the land was sold when their mother was alive – but that their mother was sick and was just lying there. 5. Nthango testified she adopted the joint statement of herself and her sisters. She denied that they had sold their mother’s land. That when their mother fell sick, they took care of her – and that their mother also had a grandson who also assisted her. 6. She denied signing any sale agreements. 7. OW2 Erustus Mbuvi Kilungu testified that Nzisiva Kilungu was his mother. He stated that he had come to tell the truth – He claimed to be the secretary of the family agreements between the 2 houses of Uswii dated 20/1/2005, and 18/8/2005. 8. He said the agreements were not for sale of land, but that the agreements were written to the effect that whoever gave them money to take care of their mother, could have a share of their mother’s land. He said he heard Mwikali say that the land was sold to them. 9. On cross-examination he said that money Ksh 9000 was given to Nduki which she signed for, then, Nthangu said the money be given to the sister of Mwikali one Mumbe, then Nthangu went and took the money – he later said that the three sisters decided that Nthangu was the clever one and decided she was the one to receive the money on their behalf. 10. OW3 Philip Ngao Evata testified that as Secretary of Mbaa Muthama, he was present when the issue started on 18/8/2005. 11. He stated that the issue was that the family of Nthangu took money from the family of Mwikali but failed to do their part of giving a share of their land to the family of Mwikali. 12. OW4 James Nzomo Evata testified that Nthangu’s family sold land in 2013, part of No618. He said he bought part of that land at Ksh.50,000/= on 12/7/2013, paid the money through the chief. 13. The witness confirmed that the piece of land he brought a portion that was wrongly surveyed – and he had planted trees – and when the sisters found out – the chief brokered an agreement where he paid Ksh.50000/=. **Petitioners Case** 1. Nthangu testified that the objector was like her grand daughter, her grandmother was Nganda, her mother Mbulwa. She denied that they had sold any land to the family of Mwikali. She adopted all her affidavits and statements and documents in evidence . She said that she and her sisters stayed with their mother when she was sick. 2. Nzisiva testified and adopted her statement dated 18/6/2025.She said that when their mother fell sick she is the one who lived her till she passed on. 3. She said she had not brought my other witness to confirm that she was the one who lived with their mother taking care of her till she died. 4. She said that Mwikali and others demolished her mother’s house and ferried everything away. 5. She confirmed that the parcel of land for which they took Ksh. 50000/= had been left out during the survey, and he had taken it secretly and when it was discovered he paid them the money – she said the rest of the family had already sold that part of their father’s land – she said her son lied. 6. PW3 was Nduki. She confirmed that they brought one Wavinya as an “Iweto” for their mother because their mother had no sons. She said Wavinya died after she let their home, and they would not bring her to court. 7. She said they were not interested in No. 618 because it was sold by their father – the only property that belonged to their father was 111. 8. PW4 Daniel Ngulu testified that Uswii was his uncle. He confirmed that Nzisiva came back home from her matrimonial home, and is the one who took care of her mother. He was aware that his uncles land was divided into 2. 9. PW5 Benson Muthoka testified that Uswii was his grandfather. He confirmed that parcel 111 was shared into 2 – between the wives of his grandfather – that he testified before the land tribunal. 10. Parties closed their cases. **The Submissions** 1. The sisters filed submissions – and set out 2 issues for determination. 2. **Whether the applicants are rightful beneficiaries.** 3. **Whether the land sale agreement provided was valid.** 4. On the 1st issue they relied on section 29 of the LOSA, and In **Re Estate of the late Cheratasi Kigen Jonathan (deceased) (Succ cause 48/2002) [2024] KEHC 12310 (KLR)** and **In Re Estate of Chepkurgat Cheplony (Deceased) (Succ Cause 112/15) [2023] KEHC 1978 [KLR].** 5. It is submitted that as children of the deceased, they are entitled to inherit his property. That the petitioner/protester is a grand-daughter who can only step into the shoes of her father – See Estate of John Musambayi Katumanga [2014] eKLR; Re estate of M’Ngarithi M’Miriti [2017] KEHC 704 [KLR[. 6. On the right of married daughters to inheritance they rely on **Rono Vs Rono [2008] 1 KLR 803.**Finding that section 38 of the LOSA applies to this case and cite. *11. From thence, there are many cases – and the number is rising by the day as courts implement the Constitution – which state categorically that discrimination in inheritance on the basis of gender or sex or status is prohibited discrimination in law and the Constitution. More specifically, I am content to cite the proclamation by the Court of Appeal in the case of* ***STEPHEN GITONGA M’MURITHI vs. FAITH NGIRAMURITHI [2015] eKLR*** *that:- “Section 38 enshrines the principle of equal distribution of the net intestate to the surviving children of the deceased irrespective of gender and whether married and comfortable in their marriage of unmarried….”* *12. Therefore, a son will not have priority over a daughter of the deceased simply because he is male; all – male and female siblings – are equal before the law and are entitled to equal protection of the law as provided for by article 27 of the Constitution.* They seek that the protest be dismissed with costs. **Protester’s Submission** 1. It is submitted for the protester that the protest was filed on 20/9/18 to the SCG dated on 6/12/2017. 2. The protester’s position is that she entered into an agreement with the respondents (the sisters) that she would give them money to take care of their sick mother, and they would give her the portion of land given to their mother to her. 3. The respondents response to the protest was that the estate had been shared equally between the 2 houses of the deceased and should be confirmed. 4. The protester set out one issue for determination: whether the protest had been established on a balance of probabilities they cite **Gitonga & Another v Kinyae & 2 others (Civil Appeal E244 of 2024) 2025 KEHC 11706(KLR**): the court stated; *“Proof on a balance of probabilities means that the court is satisfied that the occurrence of the event was more probable than not. In other words, the evidence adduced by the Plaintiff must carry a degree of probability which is more than just plausible. It must be cogent, convincing and must tilt the balance in the Plaintiff’s favour.” [Emphasis ours]* 1. It is submitted that the protestor availed documentary evidence, and witnesses to corroborate that position and prove the case. It is submitted that the respondents did not produce any evidence to refute the documentary evidence, and forensic evidence to show that the thumb prints in the various documents produced by the protester did not belong to them. 2. It was submitted that even in the Makueni Land Dispute Tribunal proceedings – it was admitted that the respondents (the sisters) had sold portions of their mothers land to various individuals That for instance in the proceedings they concede to receiving money to bring a coffin, yet here they deny that any mortuary/burial expenses were incurred. 1. That the proceedings were adopted as order of the court where the parcels Nzaui/Nziu/618 and 111 were to revert back to the estate of the deceased but what the respondents did not include No. 618 in the distribution because they had sold it w/o involving the protester. 2. It is further submitted that the sale agreement produced by the respondents showing that land was sold to Moses Masunga and later to Peter Maliti demonstrates that the respondents sold the land w/o involving the protester – and that the respondents attempt to produce the same as part of their submissions should not be allowed. 3. It is submitted that the respondents have not come with clean hands. It is submitted that the protester does not want to disinherit the respondents because they are married but that she took over from her mother who was the initial administrator, the de facto matriarch of the 1st family of Nganda Uswii – that she is here to protect the interests of her mother, and the 1st house of Nganda Uswii. **Analysis and Determination** 1. I have carefully considered the record, the evidence and the documents produced by the parties, and the submissions by each party. The issue that arises is whether the protest is **tenable** – 2. To arrive at an answer the following question must be answered:- 3. What is the estate of Uswii Mutyauvyu? 4. Whether the grant issued to Ndonde Muia Uswii was revoked, and the effect of that revocation – 5. Whether the sisters (the children of the 2nd house) sold their mother’s share to the protester and her family. 6. Whether the proposal for distribution of the estate by the sisters is acceptable under the LOSA. 7. **On the 1st question** This court in an order dated 24/11/2016 revoked the grant issued to Ndonde Muia, and ***cancelled*** “**all consequent dealings and transfers of the deceased property namely Nzaui/Nziu/111 and Nzaui/Nziu/111 and Nzaui/Nziu/618 are accordingly cancelled”** 8. Clearly the estate of the estate is comprised of Nzaui/Nziu/111 and Nzaui/Nziu/618. 9. On the 2nd question – the revocation of the grant meant that all the subdivisions that Ndonde had effected, and any transfers to any other party had been cancelled. 10. Hence, even the title deed issued to Peter Mutanya Maliti on 26/2/2014 was cancelled. 11. These titles were directed to revert to the status in 1982. Peter Mutavya Maliti’s title was obtained in 2014 – it was effectively cancelled by the court, and any title deed he holds to that land null and void. 12. I take note that one Moses Kingoo Masunga who sold the land to Peter Maliti claims in the sale agreement to have bought the land from Uswii Mutyauvyu on 23/10/16 – there is no evidence to support that Moses Kingoo Masunga to have bought the land from the deceased. 13. Peter Maliti did not produce any other evidence to show that the person who sold him the land bought it from the deceased. I am aware that any issue of ownership would have to be determined by the court that has that jurisdiction – what stands now is that the decision to revoke the titles was not appealed from – and the titles stands revoked. 14. On whether the sisters sold their mother’s portion to the protester’s family – it emerged from the evidence that the protester was not sure whether the sisters had sold the land to her or that they had agreed to give her the land. 15. The record shows that at one point she said the land was sold, another, that it was an arrangement for assistant. She asserts, she must prove – with these 2 sides standing with the protester, the court finds that the proposition is doubtful. 16. What clearly emerges is that the sisters did not have brothers. They got married – their mother became elderly and sickly. So that she needed care. The sisters demonstrated that Nzisiva was at home when their mother was sick. 17. In any event the sisters did not have any land that they could give away. The land belonged to the deceased – and any purported transfer, sale, would amount to intermeddling. In any event, by then their father was deceased their mother did not own any land, and they could not have given any one land. 18. If any money was exchanged, then it cannot be deemed to have been for the sale of the deceased’s property – however the protester can always pursue the same in the relevant court. 19. In the circumstances the gist of the protest is without legs. The role of this court is to determine the estate of the deceased, the beneficiaries and their shares. 20. I have settled the issue of the estate **On beneficiaries** –The protester and the sisters are in agreement on the beneficiaries. The distribution by the sisters is that the estate be shared between the 2 houses equally. I have looked at the record and even the tribunal was of the view that the property be shared equally between the 2 houses. 21. However, section 38 of the LOSA provides that the estate shall be equally divided among the surviving children. 22. Even the evidence before me – I find that it would be in order for each house to get its share, and each house to share their share equally among them. Both houses are represented –hence for the house of Nganda – the protester to hold the share of the family members in trust. For the house of Mbulwa – the sisters in equal shares. **Final Orders** 1. The estate Nzaui/Nziu/618 and 111 be divided into 2 equal shares:- * 1st house – Mwikali Nzomi to hold in trust in equal shares. * 2nd house – to be held by the three in equal shares. Each party to bear its own costs. **Judgment** dated, signed and delivered virtually on 29th May 2026 **MUMBUA T MATHEKA** **JUDGE** CA Chrispol.