https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9583

In re Estate of Nderitu (Deceased) (Succession Cause E001 of 2024) [2026] KEHC 9583 (KLR) (2 July 2026) (Ruling) Neutral citation: [2026] KEHC 9583 (KLR) Republic of Kenya In the High Court at Nyahururu Succession Cause E001 of 2024 LN Mutende, J July 2, 2026 IN THE MATTER OF THE ESTATE OF JAMES WAIHENYA NDERITU (DECEASED) -VERSUS- Between Judith Itata Waihenya 1st Petitioner Joseph Muturi Kahiga 2nd Petitioner and Nicholas Ngure Nderitu 1st Objector Catherine Wangui 2nd Objector Edith Nyokabi 3rd Objector Ruling 1.This is a matter in respect of the Estate of James Waihenya Nderitu (Deceased) who died Intestate domiciled at Karagoini, Nyandarua County, in the Republic of Kenya on 16th November, 2020. 2.By a petition for Letters of Administration Intestate dated 5th day of October, 2023, Judith Itata Waihenya and Joseph Muturi Kahiga stated to be a wife of the deceased and friend of the family respectively, sought grant of representation so as to administer the Estate according to the law. 3.In an affidavit in support of the petition, the deceased is stated to have been survived by Judith Itata Waihenya (wife) and Francis Nderitu Waihenya (son) and that he was not survived by any other dependent. 4.Further, it is stated that he left the following assets and liabilities;Assets:1.Half a share in Nyandarua/Karagoini/550 2 ½ acres2.One plot in Plot 72 Gwa-Kung’u3.Half a share in the Estate of Jane Wambui Nderitu4.Half a share in the Estate of Fredrick Rukwaro NderituLiabilities – nil. 5.Later, on 6th May, 2025, Nicholas Ngure Nderitu, Catherine Wangui and Edith Nyokabi filed an objection to the making of the grant and answer to the petition. They did so in their capacity as brother and cousins to the deceased as well as the Administrators of the Estate of Fredrick Rukwaro Nderitu and Jane Nderitu (the father and mother of the deceased). They seek dismissal of the petition on grounds that;a.The 1st Petitioner, Judith Itata Waihenya, is not a lawful widow of the deceased, has not produced proof of any marriage, and has misrepresented her identity using multiple aliases, namely Judith Akol, Judith Emuria, and Judith Itati.b.The 2nd Petitioner, Joseph Muturi Kahiga, has no legal standing under Section 66 of the Law of Succession Act, being neither family nor dependant of the deceased.c.The petition misleadingly includes as part of the deceased’s Estate “half shares” in the Estates of his deceased parents, Fredrick Rukwaro Nderitu and Jane Wambui Nderitu, whose Estates are still under administration and not distributable to the deceased’s Estate.d.The true and sole heir of the deceased is his minor son, F.N.W., whose interests are already lawfully under the administration in the Estates of his paternal grandparents.e.The 1st Petitioner intermeddled with the Estate of the deceased contrary to Section 45 of the Law of Succession Act by unlawfully transferring to herself Share Certificate No. 079 held by the deceased in Manguo Tumaini Company Limited. This share was the only known asset of the deceased, yet it was deliberately omitted from the petition. Without first obtaining a grant of representation, the 1st Petitioner caused the issuance of the Title No. Laikipia/Pesi/Block 1/2559 in her name.f.The estimate value of the deceased’s estate is Kshs.350,000/- consisting solely of a plot measuring 50x100ft held under Share Certificate No. 079 in Manguo Tumaini Company Limited. This falls squarely within the pecuniary jurisdiction of the Magistrate’s Court. Accordingly, the Petitioners ought to have instituted the cause in the proper forum. 6.Further, Nicholas Ngure, Catherine Wangui Gichungu and Edith Nyokabi Kigambi filed a cross-petition for Letters of Administration Intestate dated 7th May, 2025 where they stated that;1.The deceased died intestate domiciled in Karagoini, Nyandarua County and was the son of Jane Wambui Nderitu and Fredrick Rukwaro Nderitu both deceased.2.The deceased left behind one verified dependant and beneficiary; F.N.W. a minor.3.The interests of the minor are already under the stewardship of the undersigned Cross-Petitioners, who are the court-appointed Administrators in; Succession Cause No. E006 of 2023 (Fredrick Rukwaro Nderitu’s Estate), and Succession Cause No. E005 of 2023 (Jane Wambui Nderitu’s Estate). 4.The Cross-Petitioners are best placed to continue administering James’s Estate seamlessly, ensuring the protection of the minor’s inheritance across all three estates.5.They will faithfully administer according to law all the Estate which by law devolves upon and vests in the personal representatives of the deceased and they will render a just and true account of such estate whenever required by law so to do and they will when required by this court deliver up thereto the said grant. 7.In an affidavit in support of the cross-petition the Applicants depone that they are duly appointed administrators in Succession Cause No. E006 of 2023 (Estate of Fredrick Rukwaro Nderitu) Succession Cause No. E005 of 2023 (Estate of Jane Wambui Nderitu). 8.That the deceased died intestate and was survived by F.N.W. a minor son and was not survived by any dependent. 9.That at the time of his demise, he had the following assets;1.Half a share in Nyandarua/Karagoini/550 – 2 ½ acres2.One plot in Plot 72 Gwa-Kung’u3.Half a share in the estate of Jane Wambui Nderitu4.Half a share in the estate of Fredrick Rukwaro Nderitu 10.They oppose grant of Letters of Administration to the Applicant because the Petitioner Judith Itata Waihenya has not demonstrated any lawful marriage to the deceased under Statute or Kikuyu Customary Law including payment of dowry or family involvement and the 1st Petitioner has inconsistently claimed various identities namely; Judith Akoi Judith Itata Emuria Judith Itati Waihenya 11.That the Petitioner has documents which represent multiple conflicts hence doubtful of identity representation which has resulted into launch of a complaint to the Directorate of Criminal Investigation on 24th October, 2022, a matter under investigation. 12.That although the 2nd Petitioner styles himself as a friend of the deceased despite having no recognition from members of the deceased family. 13.That the 1st Petitioner fraudulently represented that F.N.W. was born in Kenya and fraudulently obtained a birth certificate registered in Nyandarua North District, a document not attached to pleadings yet the true record of birth of the minor is a birth notification issued in Uganda by the National Identification and registration Authority (NIRA) raising the question whether it was deliberately withheld to avoid scrutiny of its contents and the likelihood that it was a forgery. 14.That it is doubtful if the Petitioners have the minor’s best interest at heart and neither Petitioner has disclosed how they will safeguard the interests of the minor, who is the deceased’s only beneficiary. 15.That the minor is already under their care as trustees and Administrator’s of the Estate of the minor’s grandparents. 16.Further, that the Petitioners’ list assets of the deceased as ‘half a share in the Estate of Jane Wambui Nderitu’ and ‘half a share in the Estate of Fredrick Rukwaro Nderitu’ is incorrect as the deceased had no vested interest of these shares at the time of his death; and both parents’ estates are still pending full administration, confirmation and distribution. 17.That the 1st Petitioner has concealed a material asset of the deceased’s estate, namely a share held at Manguo Tumaini Company Limited – share certificate No. 079 which she unlawfully caused the transfer into her name resulting in the issuance of Title No. Laikipia/Salama/Pesi Block 1/2559. 18.That the Petitioner has intermeddled in the deceased’s parents’ estate and has been reported for felling and commercially exploiting trees on 2nd January, 2024. 19.That they are best suited to continue representing and protecting the child’s interest in the estate of the deceased hence for the best interest of the child, the grant should not issue to the Petitioners. 20.In response to the answer to the petition and cross-petition, it is deposed that the Respondent and Cross-Petitioners do not rank in priority to apply for letters of the 1st Petitioner’s husband, and the Cross-Petitioners have no legal standing in the proceedings and Catherine Wangui Gichungu and Esther Nyokabi are strangers do the 1st Petitioner and have not disclosed their interest in the proceedings. 21.That the Cross-Petitioners should disclose the source of documents annexed to the cross-petition which constitute forgeries and illegally obtained evidence. 22.Further, that 1st Petitioner married the deceased in a customary marriage and she was the only wife named in the eulogy which also contained photographs of their traditional marriage where one of the Cross-Petitioners Nicholas Ngure was one of the guests. And, that a wife is entitled to a life interest in the Estate of her deceased husband. 23.Finally, that the cross-petition is a continuation of harassment visited on the 1st Petitioner/Respondent by her brother in-law Nicholas Ngure. 24.The application was disposed through written submissions which I have taken into consideration, alongside the affidavits deposed in support and opposition and the annexures thereto. 25.The deceased passed on having not made a will therefore died Intestate. The surviving family members were required to Petition for Letter of Administration Intestate. Procedurally, they were required to avail some documents, namely a death certificate, a letter from an Administrator confirming where the deceased was domiciled; those interested in administering the Estate and other beneficiaries. The inventory of assets and liabilities included. 26.The 1st and 2nd Petitioners availed necessary documents namely; a death certificate that was duly certified which confirmed the fact of the deceased having emanated from Laikipia which was his area of residence. Also attached was the burial permit issued to the 1st Petitioner which indicated his usual residence as Karagoini. 27.The Administrator’s letter was authored by the Assistant Chief, Karagoini Sub-Location who confirmed that the deceased hailed from Karagoini and he was survived by a wife Judith Itata Waihenya and a son F.N.W., assets and liabilities and estimated value of the alleged Estate. Actual beneficiaries and the value of the Estate are contested by the Objectors/Cross-Petitioners but some are indicated which establishes a fact of procedural requirements having been substantially complied with. 28.To determine who is suitable to be the Administrator of the estate this court is guided by Section 66 of the Law of Succession Act which provides thus;When a deceased has died intestate, the court shall, save as otherwise expressly provided, have a final discretion as to the person or persons to whom a grant of letters of administration shall, in the best interests of all concerned, be made, but shall, without prejudice to that discretion, accept as a general guide the following order of preference—(a)surviving spouse or spouses, with or without association of other beneficiaries;(b)other beneficiaries entitled on intestacy, with priority according to their respective beneficial interests as provided by Part V;(c)the Public Trustee; and(d)creditors:Provided that, where there is partial intestacy, letters of administration in respect of the intestate estate shall be granted to any executor or executors who prove the will. 29.It is apparent that there is a minor beneficiary hence there is need for multiple Administrators for purposes of protecting the properties in the continuing trust until the child is of age. 30.It is argued by the Objectors/Cross-Petitioners that the 1st Petitioner is not suitable to be an Administratix of the Estate because she was not the deceased’s wife. That she has not demonstrated any lawful marriage to the deceased under Statute or Kikuyu Customary Law. 31.Section 43 of the Marriage Act, 2014, provides thus;Governing law for customary marriage;(1)A marriage under this Part shall be celebrated in accordance with the customs of the communities of one or both of the parties to the intended marriage.(2)Where the payment of dowry is required to prove a marriage under customary law, the payment of a token amount of dowry shall be sufficient to prove a customary marriage. 32.The 1st Petitioner was bound to prove the fact of having been a wife. To inherit from the deceased, she must establish spousal rights. she urges that they got married under the customary law, a fact recognized by the family. That she was recognized as the only wife of the deceased in the eulogy and the traditional ceremony was attended by the 1st Objector/Cross-Petitioner, her brother in-law, Nicholas Ngure Nderitu as exhibited by photographic evidence. 33.The Objectors peg their argument on the inconsistency on the identification documents held by the 1st Petitioner. The 1st Objector/Cross-Petitioner acknowledging that there was a ceremony in Uganda argues that it depicts the presence of an infant amidst people and at the same time the child breast feeding. 34.That the more plausible explanation consistent with the record would relate to a family visit or introduction meeting which is presented as evidence of marriage. 35.In T v M [2008] 1KLR (G&F) Kimaru J (as he then was) stated this concerning Kikuyu Customary Law;“In this case I hold that the fact that Kikuyu Law Marriage ceremonies were not concluded does not preclude this court from finding that evidence presented before it that there existed a common law marriage between the Applicant and Respondent by virtue of the fact that had lived together as a husband and wife for a long period of time...” 36.This was a cross border celebration hence it was not celebrated under the Kikuyu Customs/Culture. There was a ceremony conducted in Uganda. The 1st Petitioner argues that the marriage was solemnized under their culture but the Objectors argue that it may have been simply a visitation or introduction. It is interesting that the 1st Objector who was present at the ceremony cannot state with certainty what the ceremony was all about. 37.After the ceremony that is dismissed as introduction or just visitation, the couple (deceased and 1st Petitioner) cohabited in Kenya at the ancestral home of the deceased until his demise in 2020. A child F.N.W. was born out the relationship who is acknowledged by the Objectors. 38.The question to be determined is whether a presumption of marriage did arise. In Njoki v Mutheru & 3 Others (Civil Appeal 71 of 1984) [1985] KECA 32 (KLR) Nyarangi JA stated that;“Before a presumption of marriage can arise, a party needs to establish cohabitation and acts showing general repute. If the woman bears a child or better still children, so that the man could not be heard to say he is not the father...” 39.During the ceremony in Uganda and at the time of the deceased’s demise more than seven (7) years later it was not suggested that either party was married to somebody else hence the participation of relatives of both parties in the ceremony in Uganda was evidence of each one of them having mutually consented to the act. 40.The community represented by the Assistant Chief Karagoini Sub-Location acknowledged the deceased as having hailed from her area of jurisdiction and the 1st Petitioner related as mother of his minor child. 41.As to the eulogy, it is written that the deceased married in Uganda where he met the love of his life Judith Waihenya and got married in a cultural marriage and were blessed with a baby boy FN. It was indicated that the deceased was the first born in the family. 1st Objector, Ngure, was his follower and there was a younger brother who predeceased him. In the eulogy are pictures depicting the family then the deceased childhood up to the time of the ceremony and the deceased, the baby and the 1st Petitioner. 42.This court acknowledges that the eulogy is circumstantial evidence which must be corroborated by some other evidence to prove existence of marriage. 43.In MKW v AMW [2017] eKLR J. Ngugi J (as he then was) stated that;“The progressive tone by the Court of Appeal is well taken. As customs are surely organic, the exact procedures for a valid customary marriage cannot be said to be codified. Even then, there is no denying that certain pre-requisites must be present. However, the failure of certain formalities does not per se invalidate a customary marriage if there is enough evidence to show that a customary marriage was intended and certain substantive pre-requisites performed.” 44.In acknowledging what is stated in the eulogy that the deceased married the 1st Petitioner under the Ugandan Customary Law, the 1st Objector argues that there was an illegality of the documentary evidence which put her age as below the recognized age of 16 years. But, this is evidently double speak as he did participate in the ceremony without any question. Thereafter, he was comfortable when his brother lived with the 1st Petitioner as a wife without any question. 45.The Objectors stated under oath that the minor is already under their care and legal representative of the Estates of his grandparents, Fredrick Rukwaro Nderitu and Jane Wambui Nderitu. In a related matter that has been quoted severally – P&A E006/2023, the Estate of Fredrick Nderitu Rukwaro, the 1st Petitioner stated under oath that the minor stays with his mother, the 1st Petitioner at Karagoini, the deceased’s ancestral home, while he resides at Mombasa/Nairobi. None of the Objectors provide for the child and they do not reside at the ancestral home, leaving the question what would be the best interest of the minor alluded to by the Objectors ? 46.This is a unique case where circumstances that prevailed then and currently make this court draw a conclusion that based on cohabitation of the deceased and 1st Petitioner, after the ceremony in Uganda, reinforced by the birth of the child, and recognition by the family through eulogy, a presumption of marriage did exist. 47.Section 58 of the Laws of Succession Act provides;(1)Where a continuing trust arises—(a)no grant of letters of administration in respect of an intestate estate shall be made to one person alone except where that person is the Public Trustee or a Trust Corporation.(b)no grant of letters of administration with the will annexed shall be made to one person alone except where-(i)that person is the Public Trustee or a Trust Corporation; or(ii)in the will the testator has appointed one or more trustees for the continuing trust who are willing and able to act.(2)Where an application for a grant of letters of administration in respect of an intestate estate is made by one person alone and a continuing trust arises the court shall, subject to section 66, appoint as administrators the applicant and not less than one or more than three persons as proposed by the applicant which failing as chosen by the court of its own motion. 48.There is inclusion of persons not anchored in consanguinity due to the fact of a minor being involved. The 1st Petitioner, filed the petition jointly with the 2nd Petitioner, a friend of the family. The 1st Objector is a biological brother of the deceased therefore on the court’s own notion I appoint the following individuals as Administrators of the Estate of the deceased;1.Judith Itata Waihenya2.Nicholas Ngure Nderitu3.Joseph Muturi Kahiga 49.There is a dispute as to what actually comprised of the Estate of the deceased. This will be determined at the point of confirmation of the grant of Letters of Administration Intestate. 50.Being a family matter, there will be no orders as to costs. 51.It is so ordered. DATED, SIGNED AND DELIVERED VIRTUALLY THIS 2ND DAY OF JULY, 2026.……………………L.N. MUTENDEJUDGE