https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10903

In re Estare of Waweru (Deceased) (Succession Cause 22 of 2002) [2026] KEHC 10903 (KLR) (17 July 2026) (Judgment) Neutral citation: [2026] KEHC 10903 (KLR) Republic of Kenya In the High Court at Eldoret Succession Cause 22 of 2002 JRA Wananda, J July 17, 2026 IN THE MATTER OF THE ESTATE OF NJOROGE WAWERU (DECEASED) Between Migwi Njoroge Petitioner and Solomon Chege Objector Judgment 1.It is a rare case for a person to die intestate leaving no wife or children, or parents or any known siblings behind. This is one such rare case where no such immediate family member of the deceased has come forward to claim his estate heir. As a result of the vacuum created by this state of affairs, two protagonists have for almost 35 years now been engaged in a acrimonious tussle over inheritance of the only property left behind by the deceased, a 5-acre parcel of land situated in Moiben, Uasin Gishu County. As it were, the duo tussling is, one claiming as a “nephew” of the deceased, and the other, claiming as a “grandson”. They have both been at great pains throughout the said period to satisfactorily prove their rival alleged relationship to the deceased. Are the two genuine claimants or are they just “vultures” who saw an opportunity to swoop on unclaimed appetising flesh? The duty of deciding who, between, the two should be declared the heir to the estate of the deceased is what I am now called upon to determine by this Judgment. 2.The background of the matter is that the deceased, Migwi Kiama Njoroge, died on 13/02/1991 at the age of 75 years. By the Petition dated 18/02/2002, the Petitioner, Migwi Njoroge, describing herself as the 41 years old grandson of the deceased, applied for a Grant of Letters of Administration to manage the estate of the deceased listing himself as the sole survivor and heir thereof. In the letter from the Chief attached to the Petition, it was stated that the deceased had one son, who died in 1999, and who is the father of the Petitioner. The Petitioner then listed one parcel of land described as Uasin Gishu/Mafuta/117 (hereinafter referred to as “the suit land”), as the only asset comprising the estate. The Letters of Administration was thereafter granted to the Petitioner on 21/01/2003. 3.However, by the Summons dated 5/03/2023, the Objector filed a challenge to the Grant and applied for its revocation. In his Supporting Affidavit, he asserted that the Grant was obtained fraudulently by the Petitioner by the making of a false statement and/or by concealment from the Court of the material fact that the Petitioner is unknown, and is not a relative of the deceased. He contended that he stayed with the deceased for over 15 years and assisted the deceased when there was no any known relative of his, and that it is him who all alone treated and buried the deceased. He therefore prayed that the Grant be issued to him as he even is the one cultivating the suit land. 4.In response, the Petitioner appointed Messrs Chemitei & Co. Advocates to act for him, through whom he filed the Replying Affidavit sworn on 24/03/2003. In the Affidavit, he reiterated that the deceased was his grandfather, the father to his own father, Kiama Njoroge. He deponed that the deceased visited his parents in Embu in the mid-1970s where it was agreed that the Petitioner would go and stay with the deceased as the deceased had no child, that pursuant thereto, the Petitioner moved and stayed with the deceased and schooled at Moiben Primary School during which time, he all along deemed the deceased as his guardian and parent, that later in 1984, he returned home to undergo circumcision under the Embu rites and left the deceased. He asserted that he later married and moved to stay with the deceased, that he would stay with the deceased for a while then return home to check on his own old parents but during the 1992 land clashes, he moved to Embu and left the deceased but when he came back after the clashes, he did not find the deceased and the home had also been destroyed, and he therefore believed that the deceased had relocated, only to later learn from the local Chief that the deceased had died and had been buried by the Objector. He denied that the Objector had any relationship with the deceased and averred that the mere fact that the Objector buried the deceased does not grant him any right of inheritance. 5.Upon determination of various interlocutory Applications, it was directed that the matter be canvassed by way of viva voce trial which then commenced on 9/07/2017 before the late Ibrahim J (as he then was) when the Objector’s first witness testified. In the intervening period, in line with the new practice rules, the parties filed respective Witness Statements and bundles of documents, which were subsequently adopted at the trial as the witnesses’ respective evidence-in-chief. The parties seem to have however thereafter “gone to sleep” since it was not until after about 10 years on 13/11/2018 that the part-heard trial eventually continued, this time before H. Omondi J (as she then was) when the Objector’s second and third witnesses testified and the Objector closed his case. It was again not until after another 6 years on 28/11/2024 that the Petitioner began prosecuting his case before me after I took it over, and even so, only after I had threatened to lock him out and close the trial for reason of his long delay to prosecute his defence. The Petitioner then also called 3 witnesses, and I closed the trial on 20/02/2025 after the Petitioner’s last witness testified. 6.For purposes of depicting the proper context of matters, I will now recount the Statements. Objector’s Witnesses’ Statements 7.I did not come across any Statement from the Objector, Solomon Chege, now represented by Messrs Ngigi Mbugua & Co. Advocates. I therefore presume that he opted to rely on his earlier recounted Affidavit. 8.Njenga Wakaba made the Statement dated 22/09/2017. He stated that he knew the deceased as they were allocated plots in Mafuta Farm which were created in 1975 through the Settlement Fund Trustee (STF), during which time they were both working at East African Tanning Extract Company Limited at Ainabkoi, where they worked between 1958 to 1972. He stated that their shares were later increased to 5 acres from 2.5 acres, and that their employer later sold the farm where they were working with the deceased, known as Sky Land, and they demanded resettlement around 1972. He stated further that the deceased did not have a family, wife or children but used to talk fondly of a nephew by the name Njoroge Chege who was in the Western region but in Rift Valley, and that the deceased used to cultivate 1 acre and lease out the remaining 3 acres. He stated further that the deceased started ailing and had swollen legs (elephantiasis) and could not remain mobile, and they called the nephew (Objector) who came and took him to hospital in 1991. He contended further that the deceased in mid-1991 called him (Njenga Wakaba) and Mungai Kagino to hear him “speak his wishes” upon which the deceased told them that it is the Objector who had been taking care of him and to whom he therefore wished to bequeath the suit land to inherit, and he then gave the title deed to the Objector as a gift, that the Objector later took the deceased to hospital where he however died about 1 or 2 weeks later, the Objector paid the bills and they buried him. He contended that the Petitioner was not there for the deceased and did not even attend the burial and only surfaced to claim the land. He described the suit land No. 117 as being about 5 plots from his own plot No. 343, and he denied knowledge of the alleged Kiama Njoroge said to be a son of the deceased who allegedly died in 1999 some 8 years after the deceased died but never made a claim. 9.Mungai Kagino Kamau made a similar word-by-word replica Statement as the one made by Njenga Wakaba, including the plot number of his own parcel of land. The Statement is similarly dated 22/09/2017. Petitioner’s Witnesses’ Statements 10.The Petitioner, Migwi Njoroge, now represented by Messrs Kiboi Tuwai & Co. Advocates made the Statement dated 19/09/2017. He stated that when he was a young boy, his grandfather (the deceased herein) came to his father requesting for a child to stay with him at Mafuta, upon which a meeting was held and the family agreed that he goes to live with the deceased. He stated that they left home, a place by the name “Kimathi” in Kirinyaga for the home of the deceased in Mafuta, where upon reaching Mafuta, they stayed at her aunt’s place for a while as they were still building their house in the suit property Uasin Gishu/Mafuta/117, and thereafter, his grandfather took him to school at Moiben Primary School and paid 2 bags of maize. He stated that after some years, he heard that his father was unwell, he went to attend to him but he passed on and so he buried him at Kimathi, that he is made to understand that it was during the same time that his also grandfather died since he found him already buried on the subject land, and that he did not come back immediately because there were violent ethnic clashes at the time, around 1992, when he came back and found nobody in the suit land which had now been taken by the Petitioner under unclear circumstances. 11.Mbetha Waruguru Gitonga, in her not so well-drafted, and in some portions even incomprehensible Statement also dated 19/09/2017, stated that the deceased herein and his grandson, the Petitioner, are well known to her as they were her neighbours and also relatives, and that the deceased is her uncle (brother to her father) and the Petitioner is thus her nephew (her brother’s son). She stated that sometime just after independence, she accompanied her husband who worked for a “white man” by the name “Jimmy” at Mafuta farm but where he did not work for long as “Jimmy” left the country, that the land was then sub-divided into 5 acre plots and each “squatter” was given one plot each, the remaining plots were given to other persons who were brought in by the Government from various parts of the country, and one of the persons brought in was the deceased. She stated further that they were all allocated 5 acres pieces of land though they were first required to clear off the loan before the land fully became theirs, that the Settlement Fund Trust came to their aid and took 2 ½ acres of each person and later cleared the debts, and that they were then required to pay 15,000/- for title deeds which they did and received the titles. She stated that she bought 2 acres of the land from the deceased (his uncle) to enable him pay the SFT as he was old and could not work for to get the needed amount. She then stated that the deceased stayed with the Petitioner all the times until the Petitioner’s father who resided in Embu fell sick and the Petitioner went to attend to him, that it was at this time that his aging grandfather (the deceased herein) also passed on and was hurriedly buried by the Objector and his two children in unclear controversial circumstances that forced him to report the matter to the Administration. She then asserted her knowledge that the deceased stayed with the deceased from his childhood to his death and in conclusion, insisted that the Objector has no relationship whatsoever with the deceased and that his intention is to disinherit the Petitioner. 12.Njoroge Kimani in his Statement also dated 19/09/2017, stated that he resides at Mafuta Farm, that he knows the deceased herein very well and his grandson, the Petitioner herein, that the deceased was an old man who lived alone with the Petitioner who schooled at Moiben Primary School, and that they were his neighbours at Mafuta Farm, which was allocated by the Government just after independence. He stated that they were many people amongst whom was the deceased, they we were required to cultivate 5 acres and pay off the loan but since they did not have the capacity to cultivate for maximum profit, the Government, through the Settlement Fund Trust (SFT) took 2 ½ acres of each person’s land and cultivated it in order to repay the loan, and completed the payment and the land, upon which 2 acres was reverted to them although they were then required to pay for the title deeds, which they did and were issued. He asserted that it was during this time that the Petitioner got information that his father was sick at Kimathi and he travelled back there to attend to him but he died, only for the Petitioner to be struck by double tragedy as the deceased (his grandfather) also fell sick and was taken to Iten Hospital by the Objector who met him on the way, but by bad luck the deceased also died. He claimed that their astonishment, the Petitioner secretively, very early in the morning, and in the company of his two children and another man, hurriedly buried the deceased at dawn, brought down his house and carried all his belongings, and that it is from that time that the Objector started claiming that the land was his. He, too, thus asserted that the Objector’s intention is to disinherit the Petitioner of his rightful share. Hearing of the Objection 13.I will now recount the testimonies of the respective witnesses. Objectors’ Witness Testimonies 14.PW1, the Objector, Solomon Njoroge Chege testified on 9/07/2007 before Ibrahim J (as he then was). Led by Mr. Ngigi Mbugua, he basically reiterated the matters contained in his Statement, and stated that the deceased was his uncle from his mother’s side. He then stated that he was born in 1943 and thus he was, at the date of testifying, aged 63 years old, that he is from Kiambu and that the deceased left Kiambu and went to Timboroa when he (Objector was still young) and that he later found the deceased at “Skyline”. He stated further that the deceased was born by someone from Embu and his mother was his (Objector’s) aunt, that the father of the of the deceased was from Embu and the aunt was known as “Njuhi”. He testified that he came to Rift Valley with his mother in 1950 and the deceased welcomed them at “Skyline” Tanning, and that the deceased was not married and had no children but was ill suffering from elephantiasis. He stated that the deceased, later in 1975, moved with them to Moiben where they were registered as squatters and he and the deceased were given 5 acres of land each by the Government, but his mother was not given and she later died. He testified that the deceased died at a hospital in Iten from cancer of the throat/oesophagus but that he does not have the Certificate of Death. He stated that he stayed with the deceased when he was sick as the deceased could not take care of himself, that the deceased was buried as proved by the Burial Permit he had produced, and that no one else used to visit the deceased. He also claimed that the Petitioner is known to him as he (Petitioner) used to go to school with his (Objector’s) own children at Moiben Primary School and he also knew his parents, that the Petitioner used to live with one “Gitonga” whose wife is the one who was related to the Petitioner, whom the Petitioner used to refer to as his “aunt”, and that “Gitonga’s” family was not related to the deceased and were only neighbours. He denied that the deceased was the Petitioner’s grandfather and also denied any knowledge of the alleged “Kiama Njoroge” said to be the Petitioner’s father. He pointed out that according to one of the Petitioner’s Affidavits filed in this matter, the alleged father died in 1999 at the age of 79, while the deceased died in 1991. He also asserted that neither the Petitioner nor the alleged father attended the burial, that he only learnt that the Petitioner had applied for Letters of Administration when the Petitioner fought with his (Objector’s) son in respect to the suit land and that he had all along been the one cultivating the land, together with his own separate land, since 1975 while he was living with the deceased. He stated that after the death they dispersed due to the tribal clashes and insisted that the deceased was his uncle. 15.Under cross-examination by Mr. Chemitei, he agreed that he had no relatives in Embu and also that he used to see the Petitioner around 1975-1977, and that he (Objector) was in Moiben when the late President of Kenya, Kenyatta died as they were neighbours. He reiterated that the Petitioner used to live in the said “Gitonga’s” land who was also a squatter given land by the Government, that “Gitonga” was desirous of purchasing a piece of land from the deceased and even paid Kshs 10,000/- in 1985 for 2 acres and there was even an agreement in writing but he was unable to complete, and that the deceased had built a house on “Gitonga’s” land. In conclusion, he stated that the deceased died about 2-3 weeks after admission in hospital. 16.PW2 was Njenga Wakaba, who testified on 13/11/2018 before H. Omondi J (as she then was). He stated that he lives in Moiben and that he lived with the deceased at “Skyland” where they were working for a “white man”. He then adopted his Witness Statement and reiterated that the deceased was the Objector’s uncle, and that the Petitioner is not known to him and he never saw him when he lived with the deceased in Skylark. He added that after the deceased died, he was buried in his farm at Mafuta farm in Moiben about 3 farms from his own which is No. 140, that the Objector also holds a plot at Mafuta Farm, that when the deceased fell sick, it is the Objector who would take him to hospital, and that the deceased suffered from elephantiasis and had no wife or children. He stated that he cannot tell where the original home of the deceased as they only met at Skyland, and that the deceased never talked about his relatives and told them that his family was killed by “Mau Mau”. Under cross-examination by Mr. Kiboi, he stated that the original home of the deceased was Kirinyaga, that the Objector was the only relative of the deceased that he knew, and that he met the Objector’s mother but he cannot remember his name as it was a long time. (At this point, the Judge noted that the witness is advanced in age and is even testifying while seated). The witness then stated that from his farm to that of the deceased is about 5 kilometres, that he used to visit the deceased frequently, a week would not pass, and that the Objector’s separate farm was about 400 metres from that of the deceased. He also stated that the Objector’s children used to accompany the Petitioner to school as they were schooling together in Moiben, that he did not know who was paying the Petitioner’s school fees. He also testified that he (PW2) was present at the burial of the deceased and denied that the same was conducted n the morning. He agreed that he heard that the deceased’s house was demolished after his death but he did not know who demolished it. He then identified the Petitioner seated in Court and stated that he knew him when he (PW2) lived in “Skyland” but “only recently”. He then also asserted that he was present when the deceased gave the Objector the title deed to the suit property and told the Objector that “take this title document, if I die, the land is yours”. In re-examination, he stated that he worked with the deceased at “Skyland” just at the dawn of independence, that he never saw the Petitioner but he used to hear that he went to school at Moiben. He insisted that the Petitioner’s father is “Gitonga” whose home he (Petitioner) used to live in, and also that it is the Objector who used to cultivate the suit land herein, particularly when the deceased began ailing, and that before then, the deceased used to lease the suit land to different people. 17.PW3 was Mungai Kagino Kamau who also testified on 13/11/2018 before H. Omondi J (as she then was). He, too, adopted his Witness Statement and reiterated the matters contained therein, including that he lives in Moiben at Mafuta town, plot No. 333 which he has occupied since 1975, where the deceased was one of one his neighbours, and whom he knew when they lived in Ainabkoi in Skyland Town. He reiterated that the deceased did not have a family and was allocated a home next to his and they used to visit each other and even borrow household items from each other. He stated that the deceased was also given a farm at Maigwa Farm, about 750 metres away in which he constructed a house and lived with his sister and her son, the Objector herein, who also had his own home and was a nephew of the deceased. He denied any knowledge of the Petitioner and refuted any allegation that the Objector was a grand-child of the deceased insisting that it is the Objector who took the deceased to hospital and also buried him when he died. He also denied that the burial was conducted secretly asserting that the same was done in broad daylight. In cross-examination, he stated that they left Skyland and came to Moiben in 1975, that he does not know the original home of the deceased or any of his relatives save for the sister known as “Wakuhe” and her son whom he had referred to, and it is the deceased who told him about his relationship with them. He stated that the Objector had his own family and children who attended school in Ainabkoi known as “Rosemary Mafuta”. About the burial, he stated that it was conducted at 2.00 pm and not early morning before sunrise. Petitioners’ Witnesses’ Testimonies 18.DW1 was the Petitioner, the said Migwi Njoroge, who testified before me on 27/11/2024, and also adopted his Witness Statement. Led by Mr. Kiboi, he insisted that the deceased was his grandfather and that he only knew the Objector when the Objector showed up at the suit land sometime in 1991-1992 around the time of the tribal clashes. He stated that it is his aunt, Mbetha Kitonga who welcomed him and the deceased when they came from Embu, and denied that the Objector took care of the deceased when he was sick stating that it is her aunt, the said Mbetha Kitonga, who did so since he (Petitioner) had travelled to Embu to bury his own father who had died and later, the deceased also died when he (Petitioner) was away in Embu and later, somebody told him that he had been buried by a person by the name Solomon Chege. He also testified that his aunt was not at Moiben at that time because she had fled the tribal clashes, that as he could not find the burial place, he went to the Chief to inquire, who advised him to check with several hospitals, that he did so and eventually found records of the death of the deceased at the Iten District Hospital. He stated that he then returned to Embu where he met the aunt with whom he later travelled back to Moiben, He added that he did not know the said Solomon Chege referred to but he later learnt that Solomon Chege’s children were in school with him when they were still young. 19.Under cross-examination by Mr. Ngigi Mbugua, he agreed that his National Identity Card indicates that he was born in Kirinyaga, and not Embu, but explained that Embu used to be a part of Kirinyaga before the two were split. He also stated that he was 17 years old when he came to Moiben and schooled at Moiben Primary where he stopped in Class 6 and that it is the deceased who used to pay his school fees. He reiterated that his father is Kiama Njoroge while his mother was one Margaret Waichiri. He also reiterated that his father died in 1991 but agreed that the Certificate of Death on record indicates that the death was in fact in 1999 at the age of 75 years, which he conceded further, would mean that the age difference between his father and the deceased would be only 4 years. He also stated that both his father’s 2 siblings are also now dead, and agreed that he did not mention or include any of his 4 brothers as his co-heirs but claimed that he obtained their consent to do so. He stated that he was away in Embu during the 1991-1992 tribal clashes during which period the deceased died and that he returned later. He insisted that his father died before the deceased although the Certificate of Death shows otherwise, and agreed that he was 41 years old when he filed this matter, and also agreed that the Chief’s letter he attached to his Petition indicates that his (Petitioner’s) father was the only son of the deceased, and that his own (Petitioner’s father) died in 1999. He then stated that the deceased suffered from elephantiasis, and about the title deed to the suit land, he stated that he does not know its whereabouts neither is he aware of the deceased having gave it to the Objector. He also agreed that it is the Objector who had lived on the land since 1991 but pointed out that the Objector has now vacated pursuant to a Court order, and it is him (Petitioner) who currently occupies it. In cross-examination, he stated that the Objector took occupation of the suit land after the deceased died, that the deceased had been suffering from elephantiasis for a long time, and that his father and the deceased died about 3-4 years apart. 20.DW2 was the said Mbetha Waruguru who also testified before me on 27/11/2024 and stated that she lives in Nakuru. She, too, adopted her Witness Statement and stated that the deceased was one of the 5 sons of one “Waweru”, namely, the deceased, Gachira Zephania, Muciimi, Kaiguchi and Kan’gara, and that her father is Maina, the son of Kaiguchi also known as “Waweru”, whose children included the deceased and the Petitioner’s father. She thus reiterated that she is the Petitioner’s aunt as his father is her brother though from a different mother. She then prayed that the suit land should go to the Petitioner because he is the one who took care of the deceased since childhood, and reiterated that she does not know the Objector. In cross-examination, she stated that her own parcel of land is No. 119 while the suit land herein is No. 117. She then gave a narrative of the clan of the deceased across the generations some of which she appeared to mix-up leading to some incomprehensible accounts. She however stated that Kiama, the Petitioner’s father, died before the deceased, who died around the time when the tribal clashes of 1991-1992 commenced, and that the deceased sold 2 acres of his land to her (DW2’s) husband. She also stated that she is the one who took care of the deceased when the Petitioner travelled to Embu to bury his own father. She further stated that she is not aware that the Certificate of Death on record contradicts the dates of death that she had given or show that the deceased and the Petitioner’s father were only 4 years apart in age. In re-examination, she agreed that although she was in Moiben when the deceased died, she does not know how he died, only describing the death as mysterious, and also agreed that she did not attend the burial, claiming that the same was conducted in a manner that did not please her, and that she tried to attend but was chased away, and she went to call the Chief. 21.DW3 was the said Njoroge Kimani who testified before me on 20/02/2025 and stated that she he knew the deceased since the 1960s when they moved to the Mafuta area, their homes were near as their plots were about 6 plots apart. He then stated that he knows the Petitioner who was the son of Njoroge, and also knows the Objector who also lived in the area but a little further. In cross-examination, he stated that he was 88 years old, his original home is Kiambu, and he has never been to Embu or Kirinyaga. He reiterated that the Petitioner travelled for a funeral to Embu or Kirinyaga but stated that he did not know whose funeral it was although he did, in his Statement, state that it is the Petitioner’s father who died. He also testified that when the Petitioner returned, he found that the deceased had also died, that the person who died in Embu died before the deceased, and that it was around the time of the 1992 land clashes that the Petitioner had travelled for the funeral. He contended further that his plot is 169 while the deceased owned plot No. 117, that they were among the very first settlers there and were friends, that while he was a cattle herder, the deceased carried all manners of work, and that the deceased sold a portion of his land to one Gitonga who is still alive, and was not married. He asserted that Gitonga’s wife was one Bertha who could not give birth and that because of this reason, they asked the Petitioner to go and live with them, which the Petitioner did. He asserted further that the Objector came from Kericho and he, too, got a parcel of land of his own in Mafuta which he still owns. He agreed that it is the Objector who took the deceased to hospital, and claimed that the deceased and Gitonga had a clan relationship, he did not why Gitonga and his wife Bertha are not the people who took the deceased to hospital but that the deceased and the Objector were friends. He also agreed that he did not attend the burial, denied that the deceased was the Objector’s uncle, and insisted that the two had no relationship. Although he claimed that the Objector’s father was one Kiama, he agreed that he never met him nor his wife or children. In re-examination, he claimed that when the Objector came to the area from Kirinyaga at school-going age, he went to the family of Gitonga but became friends with the family of the deceased Written Submissions 22.Upon close of the trial, the parties filed Written Submissions. The Objector filed the Submissions dated 30/09/2025, while the Petitioner’s is dated 3/11/2025. Objector’s Submissions 23.Mr. Ngigi Mbugua, Counsel for the Objector basically submitted that the Grant issued to the Petitioner should be revoked under the provisions of Section 76 of the Law of Succession Act, and Rules 44 and 26 of the Probate and Administration Rules as it was obtained fraudulently and/or by non-disclosure of the material fact that the Objector took care of the deceased in his sunset years as well as cater for his medical expenses and basic needs as he would his own father, and that the Objector used to cultivate the suit land. He also submitted that the Petitioner did not disclose that he is not related to the deceased in any way, and his deliberate failure to involve the Objector in filing these proceedings or to list him as a beneficiary was in bad faith and amounts to concealment of material facts. He contended further that the Objector has established that he has a prima facie case and that the balance of convenience favours revoking the Grant. Counsel also cited several authorities to support his various limbs of submissions. Petitioners’ Submissions 24.On his part, Mr. Kiboi, Counsel for the Petitioner, after recounting the respective witness’ testimonies, submitted that the Petitioner qualifies as a dependent of the estate of the deceased under the provisions of Section 29 and 26 of the Law of Succession Act since he has demonstrated that was provided for by the deceased prior to his death, and to also claim under Section 39 and that as he is a grandson of the deceased, he does not require Letters of Administration. Regarding the Objector, he submitted that if he is claiming as a relative of the deceased, then the law does not allow him to file the Summons for revocation without taking our Letters of Administration, and he also described him as a stranger and an impostor to the estate lacking locus standi. He therefore contended that the Objector has not demonstrated any fraud or concealment of material facts to justify revocation of the Grant. He, too, cited several authorities to support his various limbs of submissions. Determination 25.The broad issues that call for determination in this matter can be summarised as follows:i.The deceased having died without leaving behind a wife or children, who, between the Petitioner, claiming as a nephew, and the Objector, claiming as a grandson of the deceased, should be the correct heir of the estate of the deceased?ii.Whether therefore the Grant issued to the Petitioner was obtained fraudulently and should be revokediii.How then should the estate be distributed? 26.In Kenya, as set out under Section 39 of the Law of Succession Act, when a person dies without a will (intestate) and does not leave behind a spouse or child or parents or siblings, the estate is distributed to their extended blood relatives up to the 6th degree of consanguinity. Section 39(a) stipulates that where the primary family unit does not exist, the net intestate estate shall devolve upon the remaining kindred in the following strict order of priority:(a)father; or if dead(b)mother; or if dead(c)brothers and sisters, and any child or children of deceased brothers and sisters, in equal shares; or if none(d)half-brothers and half-sisters and any child or children of deceased half-brothers and half-sisters, in equal shares; or if none(e)the relatives who are in the nearest degree of consanguinity up to and including the sixth degree, in equal shares. 27.Under Section 39(2), if no relatives within the above degree can be found, the entire estate escheats (reverts) to the State and is placed into the Government of Kenya's Consolidated Fund as it is deemed to be bona vacantia (ownerless property). 28.Regarding the Petitioner’s claim as a “grandson”, the entitlement of grand-children to inherit from their grandfather, their fathers having predeceased them, is recognized under Section 41 of the Law of Succession Act which provides that where one of the children of the deceased is himself/herself deceased, and such deceased child is survived by a child or children of his/her own, then the share due to him/her ought to devolve upon his/her said child. This position has been reiterated in many Court decisions. The Section as follows:“ 41.Property devolving upon child to be held in trustWhere reference is made in this Act to the "net intestate estate", or the residue thereof, devolving upon a child or children, the property comprised therein shall be held in trust, in equal shares in the case of more than one child, for all or any of the children of the intestate who attain the age of eighteen years or who, being female, marry under that age, and for all or any of the issue of any child of the intestate who predecease him and who attain that age or so marry, in which case the issue shall take through degrees, in equal shares, the share which their parent would have taken had he not predeceased the intestate.” 29.In this case therefore, if the Petitioner were to prove his claim that he is a “grandson” of the deceased, thus claiming his own late father’s share of the estate, then he would rank higher in priority in claiming the estate, over and above the Objector who is claiming as a “nephew”, allegedly a son of a sister of the deceased. 30.Regarding the Objector’s case, he basically asserts that the deceased was his uncle from his mother’s side and that he lived with the deceased for over 15 years. He also states that he was born in 1943 and he was therefore, at the date of testifying, aged 63 years old. He contends further that he is from Kiambu where the deceased left and went to Timboroa when he (Objector) was still young, and that he later found the deceased at “Skyline”. He stated further that the mother of the deceased was his (Objector’s) aunt, that he came to Rift Valley with his mother in 1950 and the deceased welcomed them at “Skyline” Tanning, and that the deceased, later in 1975, moved with them to Moiben. He contended that he stayed with the deceased when he was sick as the deceased could not take care of himself, and he is the one who buried the deceased when he died. He stated that the Petitioner is also known to him as he (Petitioner) used to go to school with his (Objector’s) own children at Moiben Primary School, and that the Petitioner used to live with one “Gitonga” whose wife is the one who was related to the Petitioner, whom the Petitioner used to refer to as his “aunt”, and that “Gitonga’s” family was not related to the deceased, and were only neighbours. He also poked holes in the Petitioner’s claim that he was a grandson of the deceased, and that his father was the son of the deceased, pointing out the anomaly in the Petitioner’s Affidavits indicating that the Petitioner’s alleged father died in 1999 at the age of 79, while the deceased died in 1991 at the age of 75 years old. 31.Njenga Wakaba (PW2) and Mungai Kagino Kamau (PW3) in support of the Petitioner’s case, claimed that they knew the deceased as they were allocated plots in Mafuta Farm around 1975 through the Settlement Fund Trustee (STF), during which time they were all working at a company at Ainabkoi, where they worked between 1958 to 1972. They also contended that the deceased in mid-1991 called the two of them to hear him “speak his wishes” upon which the deceased told them that it is the Objector who had been taking care of him and to whom he therefore wished to bequeath the suit land to inherit, and he then gave the title deed to the Objector as a gift. They contended that the deceased use lived with his sister and her son, the Objector herein, who was thus was a nephew of the deceased. They also stated that they left “Skyland” and came to Moiben in 1975. 32.On his part, the Petitioner claims that the deceased was his grandfather, the father to his own father, Kiama Njoroge. He asserts that the deceased visited his parents in Embu in the mid-1970s where it was agreed that the Petitioner would go and stay with the deceased as the deceased had no child, that pursuant thereto, the Petitioner moved and stayed with the deceased and schooled at Moiben, and that he would stay with the deceased for a while then return home to check on his own old parents. About his not being present when the deceased died, he stated that during the 1992 land clashes, he moved to Embu and left the deceased but when he came back after the clashes, he did not find the deceased and the home had also been destroyed, only to later learn from the local Chief that the deceased had died and had been buried by the Objector. 33.In support of the Petitioner’s case, Mbetha Waruguru Gitonga (DW2) and Njoroge Kimani (DW3) stated that the deceased and his alleged grandson, the Petitioner herein, were their neigbhours at Mafuta Farm. DW2 also stated that the deceased and the Petitioner were her relatives as the deceased is her uncle (brother to her father) and the Petitioner is thus her nephew (her brother’s son). She stated that she moved to Mafuta Farm with her husband sometime after Kenya obtained independence, where the deceased also came to settle. She then gave a long narrative of the lineage of their family or family tree with the deceased tracing it all the way from the great-grandfather. Both DW2 and DW3 then contended that the deceased at all times lived with the Petitioner who schooled at Moiben. They both also asserted that the Petitioner at some point travelled to Kimathi to visit his sick father who however died, and it is around that same time that the Petitioner also died in Moiben. They both also claimed that the Objector then secretively and hurriedly buried the deceased, brought down his house and carried all his belongings, and that it is from that time that the Objector started claiming that the suit land was his. 34.In this case, the narration of the two rival parties’ entitlement to claim the estate of the deceased was both not quite convincing to me. I say so because there were a lot of gaps in both accounts and many questions left unanswered. Although both called independent witnesses, it cannot be ruled out that the witnesses may in fact been “hired guns” promised rewards in exchange for their coming to Court to advance favourable narratives. I also say so because while all the independent witnesses claim to have known the deceased for a long time and have been close to him being neighbours, depending on the side they were testifying for, each took a marked different tangent on whether the deceased lived with the Petitioner or the Objector. Only one account can be true since all of them claim to have lived in the same neighbourhood with the deceased since the 1970s, at Ainabkoi, and later at Moiben, or both. It is not therefore possible that such long-standing neighbours would differ on such a simple fact such as who between the Petitioner and the Objector lived with the decaesd. 35.If the parties were serious, I believe they could have called neutral and more reliable witnesses, such as members of the local administration, for instance, the Chief or village elders whom, I believe, could have assisted the Court to a large extent considering their close day-to-day interaction with villagers and their “ears on the ground”. The parties could also have called some close family members from the Embu home origin of the deceased. Neither alleged that they had encountered any challenges in bringing such reliable witnesses. For the Petitioner, although DW2, Mbetha Waruguru Gitonga claimed to be an aunt of the Petitioner as the deceased was her uncle (brother to her father), that claim, too, was also not convincingly demonstrated. It is also curious that the Petitioner and the Objector, despite having lived in the same Moiben area for a long time, and both claiming to be related to the deceased, would not know each other as being relatives of the deceased or at least know their other mutual relatives. Relationship or kinship is not something that requires such painstaking rummaging for proof as I have seen in this case, it is something apparent that should be obvious, and if disputed, should be easily proved by other relatives. 36.Having carefully studied the witness accounts, I find both the narratives by the Petitioner and the Objector and their witnesses to be based on speculation and hearsay and both are very shaky and unconvincing. All the witnesses could convince me about was only that they lived with the deceased in the same localities in Ainabkoi, and perhaps later at Moiben. About the origin and relatives of the deceased, they knew nothing and were simply advancing what they were told. The only witness who tried to demonstrate her knowledge of the origin of the deceased was DW2, Mbetha Waruguru Gitonga, but as aforesaid, even she, was at pains to sufficiently give explanations. To her credit, she tried to take the Court through the lineage and/or family tree of the deceased but she visibly greatly laboured in trying to do so. 37.I am also alive to the Objector’s “poking of the hole” in the Petitioner’s case as regards the dates indicated in the respective Certificates of Death on record as regards the respective dates of death of the deceased and the Petitioner’s alleged father, Kiama Njoroge, and the respective ages at which they are indicated to have each died. This is relevant because the Petitioner claims that the deceased was his grandfather, the father of the said Kiama Njoroge. The contradiction is that in the Certificate of Death, the deceased is indicated to have died in 1991 at the age of 75 years, while Kiama Njoroge, in the Certificate relating to him, is indicated to have died in 1999 at the age of 79 years. The two Certificates, compared to each other, therefore alludes that the deceased was only 4 years older than Kiama Njoroge. Unless it can be shown that there was an error in one of the Certificates, this state of affairs, needless to state, would easily expose as scientifically inaccurate, the allegation that Kiama Njoroge was the son of the deceased, and in turn, shatter the allegation that the deceased was the Petitioner’s grandfather. As matters stand, no evidence was led to allude that there was an error in either of the Certificates. Although the Petitioner’s Counsel did not address this issue in his Submissions opting to steer clear of it, the Petitioner simply explained that he is not the author of the Certificates of Death. What he appears to therefore mean is that there being no evidence that he is the person who supplied the information contained therein, the Court should extend to him the benefit of doubt as regards the discrepancy pointed out above. I disagree. It is him who produced the Certificate of Death for Kiama Njoroge and sought to use it as proof that he is the son of Kiama Njoroge. He cannot now run away from it when that same piece of evidence backfires. 38.The Petitioner’s claim that his father is a son of the deceased is also doubtful considering that the overwhelming evidence is that the deceased never got married and never got any child. 39.Although Mr. Kiboi, Counsel for the Petitioner has, belatedly through his final Submissions, sought to introduce the angle that the Petitioner should also be deemed to be a “dependent” of the deceased under the provisions of Section 26 of the Law of Succession Act, I am not persuaded that there was any demonstration that the deceased, before his death, was taking care of the Petitioner, an adult man with his own family. No evidence whatsoever was led in respect to that allegation. On the contrary, is the Petitioner not the same person who claimed that it was in fact, vice versa, he taking care of the deceased? 40.Regarding the Objector, even if he were to prove that he took care of the deceased in his sunset years, or catered for his medical expenses or basic needs as he alleged, or that he is the one who buried the deceased, or used to cultivate the suit land, cannot under the law, by themselves confer to him the right to inherit. 41.I am also not persuaded by the claim by PW2 and PW3 made in their Statements on behalf of the Objector, that the deceased, before his death, called the two of them to hear him “speak his wishes” and, in their presence, bequeathed the suit land to the Objector to inherit, and handed him the title deed as a gift. Considering the weight of that claim, I would have expected it to have been canvassed in greater detail by the witnesses at the trial but I notice that the same was never raised or revisited at the trial The claim was very therefore scanty, devoid of relevant particulars, and with too many unexplained gaps. 42.In the circumstances, my finding is that the Petitioner has failed to demonstrate that he is a “grandson” of the deceased and the Objector has similarly failed to demonstrate that he is a “nephew” of the deceased. Although, they could, yes, have been remotely related to the deceased, they appear to have both tried to exaggerate that relation to the level of “nephew” and “grandson”, respectively. They appear to have just been acquaintances of the deceased who are trying to force through the “relative” narrative. 43.In the circumstances, issue No. (ii), namely, revocation of the Grant under the provisions of Section 76 of the Law of Succession of Act on the ground that the Petitioner should have involved the Objector in filing of the Petition does not arise. 44.Regarding issue No. (iii), namely, how the estate should be distributed, having found as above, should I therefore order for vesting of the estate to the State as unclaimed estate? Considering the situation of the two claimants, I think not. There is indication that they both, perhaps at different stages, utilized the suit land, or stayed there, all while the deceased was still alive. The two of them being the only people who have come forward to claim as heirs, it is likely that they had some kind of attachment to the deceased, even if just as his acquaintances, and may at different points have been the companions of the deceased. Under the above circumstances, in the interest of justice, I do not think it will fair to lock them both out of the suit land after demonstrating some interest thereon for such a long time. Having agonized at length over the fate of the Petitioner and Objector, I have reached the decision that justice will be better served by allowing them to share the suit land, rather than ordering for the same to eschew to the State as unclaimed property. Final Orders 45.In the end, I rule and order as follows:i.The Objector and the Petitioner shall equally share the estate of the deceased, comprising of the parcel of land known as Uasin Gishu/Mafuta/117, at 50:50 ratio.ii.To ensure that both parties are involved in the process of transmission of the suit land, I hereby add the Objector to be a co-Administrator of the Petitioner such that the two of them shall now become two joint Administrators.iii.Each party shall bear his own costs. DELIVERED, DATED AND SIGNED AT NAIROBI THIS 17TH DAY OF JULY 2026…………………..WANANDA JOHN R. ANUROJUDGEDelivered in the presence of:Ms. Ngigi Mbugua for the ObjectorMr. Sirengo h/b for Mr. Kiboi for the PetitionerCourt Assistant: Brian Kimathi