https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9616

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA** **AT NYERI** **HIGH COURT SUCCESSION CAUSE NO. 52 OF 1995** **IN THE MATTER OF ESTATE OF GRACE NYAMBURA KAIRU ALIAS NYAMBURA KAIRU (DECEASED)** **LAWRENCE KAIRU NYAMBURA………………………………PROTESTOR** **VERSUS** **BERNARD WACHIRA NYAMBURA…………………ADMINISTRATOR** **JUDGEMENT** 1. Before this Court for determination is the Affidavit of Protest to Confirmation of Grant filed dated **21st January 2025** filed by the Protestor **LAWRENCE KAIRU NYAMBURA**. 2. The Administrator/Respondent **BERNARD WACHIRA NYAMBURA** filed a Reply dated **3rd March 2025** to the Affidavit of Protest. The Protest was canvassed by way of written submissions. The Protestor filed the written submissions dated **16th February 2026**, whilst the Respondent filed the written submissions dated **12th January 2026**. **BACKGROUND** 1. This succession cause relates to the estate of the late **GRACE** **NYAMBURA KAIRU** (hereinafter ‘the Deceased’) who died intestate on **12th April 1978**. A copy of the Death Certificate Serial No. **328811** was filed in court. 2. The Deceased was survived by the following persons:- 3. **Bernard Wachira Mbogo - son** 4. **Alfred Murefu Mbogo - son** 5. **Tabitha Wamahiga Grace - Daughter** 6. **Francis Njuguna Grace - Son** 7. **Lawrence Kairu Grace - Son** 8. The estate left behind by the Deceased comprised the following assets 9. Parcel of Land known as **LR No. Nyeri/Watuka/738** measuring **29 Hectares**. 10. Parcel of Land known as **Nyandarua/Aberdare Forest North Block** **1/777** - measuring **1.50 Hectares**. 11. Following the demise of the Deceased his son **Bernard Wachira Mbogo** (the Respondent) sought and obtained Grant of Letters of Administration Intestate which were issued on **25th April 2024**. Thereafter the Respondent filed a Summons for Confirmation of Grant dated **15th October 2024**. In that summons it was proposed that the two parcels of land left behind by the Deceased each be distributed equally amongst all the five beneficiaries. The Protestor then filed this Affidavit of Protest Objecting to the proposed mode of distribution of the estate. **ANALYSIS AND DETERMINATION** 1. I have carefully considered this Affidavit of Protest, the reply filed thereto as well as the written submissions filed by both parties. There is no dispute regarding the names and identities of the beneficiaries to the estate and likewise there is no dispute regarding the extent of the estate left behind by the Deceased. 2. In the Summons for confirmation of Grant the Respondent has proposed that the entire estate be distributed amongst all five beneficiaries ‘**equally’**. The Protestor appears to have no issue with the equal distribution of the property known as **Nyandarua/Aberdare Forest North Block 1/777**. However the Protestor takes a great issue with the equal distribution of **LR No.** **Nyeri/Watuka/738** (hereinafter referred to as **‘Plot 738’**). 3. The Protestor avers that he is entitled to a larger share/portion of **Plot** **738**. According to the Protestor he became the custodian of this parcel of land following the demise of the deceased. The Protestor further avers that he took it upon himself to clear an outstanding loan on **Plot 738**. That he has been prosecuting various suits involving the said parcel of land thereby incurring and paying legal costs and expenses in the process 4. Finally the protestor avers that he has occupied **Plot 738** for the past 25 years made and has significant developments on the said parcel of land. As such the Protestor believes that he is entitled to a larger portion of the land. 5. In his reply to the Affidavit of Protest the Respondent denies that it was the Protestor who cleared the loans in respect of which **Plot 738** had been charged. Rather the Respondent asserts that the deceased herself had already cleared the entire loan before she passed away. The Respondent further avers that all the five siblings were involved in the cases involving the suit land and that they all incurred legal costs and expenses in relation to the same. 1. Finally the Respondents states that the Protestor misled the clan that the Deceased had wished him to occupy **32 acres** of the land and instead claims that the Protestors activities on the said land have been illegal and were reported to **Embarungo Police Station**. 1. It is pertinent to note that the Protestor is **not** seeking to have the Grant issued to the Respondent revoked. He is only objecting to the equal distribution of **Plot 738** on grounds that he is entitled to a larger portion of the land. 2. The law of succession Act treats all the children of a Deceased person equally for purposes of inheritance. Indeed **Section 38** of the Act provides that:- **“38, where an intestate has left a surviving child or children but no spouse, the net intestate shall subject to the provisions of sections 41 and 42 devolve upon the surviving child if there be only one, or be equally divided among the surviving children [Own emphasis]** 1. On the basis of the above provision the Protestors claim to a larger share of **Plot 738** has no legal basis. The Protestor claims that he is entitled to a larger portion of the land as he paid off the loans with the **Settlement Finance Trustees** and **Agricultural Corporation**. 2. The Protestor has annexed to his Affidavit of Protest an official receipt issued by settlement Fund Trustees (Annexture **‘LKN - 1a’**). I have carefully perused the said receipt Serial No. **465137** dated **2nd April** **1990**. The same is for an amount of **Kshs. 1,200/=** only. Whilst the court was not informed of how much of the loan was outstanding by the time the Deceased died, I hardly think that a payment of **Kshs.** **1,200** would clear the entire loan. 3. Regarding the loan with Agricultural Finance Corporation annexture ‘**LKN - 1b’** is a letter dated **22nd May 1989** written by the lender confirming that the loan had been repaid in full. This letter was addressed **not** to the Protestor but to the Deceased ‘**Nyambura Kairu**.’ There is no evidence availed to prove that the monies to clear the loan were paid by the Protestor. I therefore find that the Protestors claim to have cleared all outstanding loans of the property have no basis. 4. Similarly the Protestor claims that he had undertaken or participated in legal suits to protect the said property incurring legal costs in the process. The Protestor has not availed any receipts or invoices to show that he incurred any legal costs in respect to the suits. In any event there is no evidence of a pre-existing agreement/arrangement between the Protestor and his siblings to the effect that if he catered for legal expenses he would be entitled to a larger portion of the land. The Protestor cannot now after the fact stake a claim to a larger share of **Plot 738**. 5. Finally in staking a claim to a larger share of the land the Protestor seeks to rely on a decision of the “**Agachiku a mbari ya Mwangi**” clan made on **1st May 1995**. A copy of this clan resolution appears as annexture **BWN 1**’ to the Reply to Protest dated **3rd March 2025**. A clan decision **does not** bind this court at all. The Protestor had informed the clan elders that the deceased wished him to get a larger portion of **Plot 738.** There is no evidence that the Deceased ever uttered or put in writing such a desire. The Deceased did not leave behind any written or an oral will. 6. All in all I find that this attempt by the Protestor to put himself above all the other beneficiaries is both selfish and misguided. It has no legal basis at all. As stated earlier the law of succession Act obligates courts to treat all surviving siblings equally. 7. In conclusion I find no merit in this Protest. The same is dismissed in its entirety. The summons for confirmation of Grant dated **15th October 2024** is hereby allowed. The estate is to be distributed as follows 1. **TITLE NO: NYERI/WATUKA/738 to:** 2. BERNARD WACHIRA NYAMBURA - SON 3. ALFRED MUREFU NYAMBURA - SON In equal 4. TABITHA NYAMBURA - DAUGHTER shares 5. LAWRENCE NYAMBURA - SON 6. FRANCIS NJUGUNA NYAMBURA - SON 7. **TITLE NO: NYANDARUA/ABERDARE FOREST NORTH BLOCK 1 777 to:** 8. BERNARD WACHIRA NYAMBURA - SON 9. ALFRED MUREFU NYAMBURA - SON In equal 10. TABITHA NYAMBURA - DAUGHTER shares 11. LAWRENCE NYAMBURA - SON 12. FRANCIS NJUGUNA NYAMBURA - SON Each party to meet its own costs for this matter. **Dated in Nyeri this 3rd day of July 2026.** **………………………..** **MAUREEN A. ODERO** **JUDGE**