https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/13055

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA** **AT NAKURU** **(FAMILY DIVISION)** **SUCCESSION CAUSE NO. 442 OF 2016** **IN THE MATTER OF THE ESTATE OF GEOFFREY RURUA M'KIOGA (DECEASED)** LUCY KAGWIRIA RURUA ............................................… 1ST PETITIONER MOSES THOMAS MUTHOMI ......................................… 2ND PETITIONER -VERSUS- FRANCIS MUGERA RURUA .....................................… 1ST RESPONDENT PETER BUNDI RURUA .................................…....….. 2ND RESPONDENT -AND- DAVID KIPTOO SANGUTEI ............................………....… 1ST PROTESTOR JOANINA KIUNGA RURUA ....................................….... 2ND PROTESTOR **JUDGMENT** 1. The Deceased, Geoffrey Rurua M'Kioga, died intestate on 10th September 2013, the registered proprietor of LR NAKURU/SAN MARCO/5, measuring approximately 50 acres acquired under the Settlement Fund Trustees Scheme in 1998. He was survived by two wives — Juliet Waithera Rurua (1st house), who predeceased him in 2009, and Joanina Kiunga Rurua (2nd house), the 2nd Protestor — and by nine children: from the 1st house, Francis Mugera Rurua (1st Respondent), Lucy Kagwiria Rurua (1st Petitioner), Stephen Muigai Rurua, John Kirima Rurua and Moses Thomas Muthomi Rurua (2nd Petitioner); and from the 2nd house, James Mukaria Rurua, Daniel Mwirigi Rurua, Erick Mwenda Rurua and Peter Bundi Rurua (2nd Respondent). 2. The Petitioners herein obtained Letters of Administration Intestate on 27th July 2016 and moved for confirmation of grant on 6th March 2018. This was protested by the 1st Respondent and subsequently by the 1st Protestor (a purchaser for value from the deceased) and the 2nd Protestor (the surviving widow). This Court directed independent investigations by the Nakuru District Land Registrar and the DCI, whose reports, together with viva voce evidence taken between October 2024 and July 2025 and the parties' written submissions, form the record now before me. 3. It is unchallenged that there existed a long-standing estrangement existed between the deceased and the 1st Petitioner, the 2nd Petitioner, Stephen Muigai Rurua and John Kirima Rurua — evidenced by hostility, refusal to bear his name, and non-participation in his life — and that this, on the unrebutted evidence of the 1st Respondent, explains why the Deceased did not allocate them any portion in his 2013 lifetime arrangements. 4. The Petitioners' case is that LR NAKURU/SAN MARCO/5 remained intact and undivided at the Deceased's death; that all subdivisions and titles were procured by the Respondents after his death, without a grant, and in part by forgery; and that the land should be shared equally among all the ten beneficiaries (wrongly including the 2nd Protestor as a tenth "child" rather than as widow). 5. The 1st Respondent’s case is that he jointly acquired the land with the Deceased in 1996/97 on a 50/50 basis, paying half the purchase price, and was allocated 25 acres accordingly; that the deceased, before his death, executed a further subdivision in 2013 (parcels Nos. 819-825) allocating specific portions to him and to his four Meru-house brothers; and that the land, having been fully subdivided and distributed by the deceased in his lifetime, is no longer available for distribution. The 2nd Protestor's evidence corroborates this account of the lifetime arrangement. 6. The 1st Protestor's case is that he purchased 2.43 hectares (6 acres) from the deceased under a written sale agreement dated 12th April 2006, paid the full price of Kshs. 900,000/=, and is entitled either to that specific portion in specie or, failing that, to a refund with the 20% uplift stipulated in the agreement. 7. The 2nd Protestor's case is that she is the surviving widow and was never cited nor served and was wrongly omitted from meaningful participation despite ranking in priority under Part V of the Law of Succession Act. 8. The Land Registrar's report traced the registry history of LR NAKURU/SAN MARCO/5, confirming closure on subdivision (16/9/2013, six days before death) into parcels 819-825, and the subsequent chain of combinations and further subdivisions (Nos. 953, 961-965, 983-984) between 2015 and 2018, some of which reached a stranger to these proceedings, Susan Wariua Wachira. 9. The DCI Report, following forensic document examination, found: (a) the mutation of 24th August 2013 creating parcels 819-825, and the transfer instruments conveying parcel 820 to the 1st Respondent and parcel 821 to the 2nd Respondent, were genuinely signed by the deceased; but (b) the instruments purporting to transfer parcels 962, 963 and 964 (executed in 2016, three years after death) were not signed by the deceased and are forged; and (c) parcels 822, 823 and 824 remained registered in the deceased's own name at his death, no genuine transfer to James Mukaria Rurua, Daniel Mwirigi Rurua or Erick Mwenda Rurua ever having been produced or traced. 10. There were real shortcomings — most notably the failure to cite the 2nd Protestor as the surviving widow. Given, however, the length of these proceedings, the exhaustive independent investigation this Court itself commissioned and the full participation of every now-known interested party (including the 2nd Protestor, who has been heard), I decline to nullify the grant. The just and proportionate course is to correct the record and determine the substance of the dispute, which I do below. 11. Section 3 of the Law of Succession Act confines the "free estate" to property the deceased was competent to dispose of in his lifetime and whose devolution was not completed before his death; conversely, a mere intention to give, unaccompanied by a completed disposition, does not divest the estate. The High Court has recently affirmed that prior benefits are recognised in distribution only where they were completed. 12. Equally, the settled acts of a deceased person effected during his lifetime are ordinarily to be honoured and given effect, not disturbed: see **Reginah Nyambura Waitathu v Tarcisio Kagunda Waithatu & 3 Others [2016] eKLR.** 13. Parcels 819, 820, 821 and 825 satisfy that test — the deceased personally executed the 2013 mutation and the transfer instruments in favour of the 1st and 2nd Respondents, a fact independently confirmed by the forensic examiner. Registration completed after death does not defeat a transaction whose substantive elements were completed by the transferor before he died. Those four parcels (approx. 35 acres in aggregate) accordingly stand outside the free estate. 14. Parcels 822, 823 and 824, and everything derived from them (Nos. 953, 961-965, 983-984, approx. 15 acres), fail that test. No transfer instrument signed by the deceased was ever produced for these; they were dealt with only years after his death, without a grant, in breach of Section 45 of the Act, and — as regards 962, 963 and 964 — by documents forensically confirmed as forged. They remain part of the free estate. I make this finding without purporting to cancel any title or adjudicate the position of third parties (in particular Susan Wariua Wachira, not before the Court) — that lies within the jurisdiction of the Environment and Land Court, as counsel for the 1st Respondent rightly submitted, citing the case of **Re Estate of David Mutisya Makumbi (Deceased) [2022] eKLR.** My finding is confined to identifying, for probate purposes, what forms the free estate; recovery or cancellation, if pursued, is a matter for that court. 15. The 1st Respondent led evidence that he was a bank employee of means and that he made payments to the deceased and that the deceased issued him receipts. The 2nd Protestor’s evidence corroborates the underlying family arrangement. I accept that evidence as to the fact of payment and the family understanding it reflected. 16. That, however, is a different question from whether an enforceable contract of sale for 25 acres was concluded in 1996/97. On his own evidence there was no written sale agreement — a fatal difficulty under Section 3(3) of the Law of Contract Act, which renders a contract for the disposition of an interest in land unenforceable absent writing signed by the parties, save where rescued by a completed act of part-performance such as possession coupled with payment. See **Willy Kimutai Kitilit v Michael Kibet [2018] eKLR.** His own receipts, moreover, total only Kshs. 82,000 and are, on his own account, referable to 5 acres, not the 25 acres pleaded — a material and unexplained shortfall. 17. I find, therefore, that an independent, arm's-length 1996/97 purchase of 25 acres is not established on a balance of probabilities. This finding does not, however, disturb the 1st Respondent’s title to parcels 819, 820 and 825: that title rests not on the disputed 1996/97 arrangement but on the independently sufficient and forensically verified 2013 transfer instruments addressed above, which I have already found valid. The correct characterization of the 30 acres he holds is accordingly as a completed inter vivos advancement from the deceased, not a purchase for value, with the consequence — addressed at paragraph 22 below — that it falls to be brought into hotchpot under Section 42 of the Act rather than treated as an asset acquired outside the estate altogether. This distinction is one of legal characterization only; it does not affect the security of his title to the three parcels themselves. 18. The 1st Protestor holds a written, advocate-drawn sale agreement, full payment of Kshs. 900,000/= and an identified sketch of the portion sold — a materially stronger footing than a mere oral arrangement. I do not accept that the absence of possession is, by itself, fatal to his claim in the way the parties' submissions suggested: possession is chiefly relevant to rescuing an informal or unwritten bargain by part-performance; it is not, without more, a precondition to enforcing a written, fully-paid contract for sale, and specific performance may in principle issue even in the absence of possession. 19. The real difficulties with specific performance here are, firstly, that no subdivision, survey or Land Control Board consent was ever completed to sever an identifiable 6-acre portion for the 1st Protestor before the deceased's death and secondly, specific performance is a discretionary remedy which the court will decline where performance has become impracticable or would unsettle the position of persons not before the court, particularly where — as here — the contracting parties themselves already provided for exactly this contingency. See **Reliable Electrical Engineers (K) Ltd v Mantrac Kenya Ltd [2006] eKLR** (specific performance discretionary, requires an enforceable and complete contract); **Otundo & 5 Others v Creek Marketing and Development Ltd [2024] KECA 353 (KLR)** (a claimant for specific performance must show full performance and continuing readiness and willingness); and by contrast with cases such as **Macharia Mwangi Maina & 87 Others v Davidson Mwangi Kagiri [2014] eKLR and Willy Kimutai Kitilit v Michael Kibet [2018] eKLR** (both turning on a purchaser who had paid and taken possession), the absence of possession or completed subdivision here removes the factual foundation on which a constructive trust of a specific, ascertained portion could be raised. 20. I take note that clause 5 of the sale agreement itself anticipates non-delivery and fixes the remedy: refund of the purchase price plus 20%. Effect should be given to that bargain rather than displacing it with an order this Court cannot practically enforce over unascertained land. I therefore find the 1st Protestor is a creditor of the Estate entitled to Kshs. 900,000/= plus Kshs. 180,000/= (20%), total Kshs. 1,080,000/=, payable in priority to distribution under Section 83 of the Law of Succession Act and not to conveyance of land in specie. 21. I have already found Joanina Kiunga Rurua to be the surviving widow, wrongly recorded as one of ten equal-sharing children. Her protest is upheld to that extent; she is confirmed as a beneficiary in her correct capacity and shall participate in distribution as set out below. 22. Sections 38 and 40 of the Law of Succession Act require the net intestate estate to be divided among the houses and children of a polygamous deceased, subject to Section 42, which requires lifetime advancements to be brought into hotchpot so that the ultimate shares are equalised. The Court of Appeal has recently confirmed that Sections 38 and 40 must be applied flexibly, having regard to the factual circumstances, to achieve an equitable and non-discriminatory outcome: See **Ramaita & Another v Ramaita [2025] KECA 300 (KLR); Koech & Another v Chemutai & 2 Others [2022] KECA 1309 (KLR).** 23. Of the original 50 acres, 30 acres (parcels 819, 820, 825) were validly advanced to the 1st Respondent and 5 acres (parcel 821) to the 2nd Respondent — together 35 acres to two of nine children. The deceased's evident intention to exclude four of his other children flows from the unchallenged estrangement found in paragraph 3 above; that intention, however genuine, cannot in law defeat their statutory entitlement to whatever the deceased did not validly dispose of before death, since Kenyan intestacy admits no informal disinheritance absent a valid will. 24. I decline to unwind the completed advancements to the 1st and 2nd Respondents — that would trespass on title cancellation, a remedy outside this Court's present jurisdiction — but bring their value into hotchpot for account purposes. The residue actually available for distribution (parcels 822, 823, 824 and their traceable successors, approx. 15 acres, or such part as may be recovered through the Environment and Land Court) shall be shared in five equal shares among Joanina Kiunga Rurua, Lucy Kagwiria Rurua, Stephen Muigai Rurua, John Kirima Rurua and Moses Thomas Muthomi Rurua — the beneficiaries who received no lifetime advancement — each thereby taking approximately 3 acres, in partial satisfaction of the hotchpot account against the 35 acres already taken by the 1st and 2nd Respondents. James Mukaria Rurua, Daniel Mwirigi Rurua and Erick Mwenda Rurua, who occupy portions of this residue under the instruments found to lack valid root of title, shall not participate further unless recovery proves impossible, in which event the Administrators shall seek further directions. 25. Neither the 2nd Protestor nor any other party prayed for her appointment as a co-administrator; her pleaded prayers are confined to recognition of her status and inclusion as a beneficiary, which I have granted. However, this Court is not confined to the four corners of the prayers sought where the proper administration of the Estate requires more. Section 47 of the Law of Succession Act confers on the High Court jurisdiction to "pronounce such decrees and make such orders therein as may be expedient" and Rule 73 of the Probate and Administration Rules preserves the Court's inherent power to make such orders as are necessary to meet the ends of justice. Rule 26(1) of the Rules in turn permits a grant to issue to, or be held by, more than one person. Courts have exercised this jurisdiction to add or substitute administrators where the interests of the Estate so requires. 26. Nine years of contested litigation between two houses of this family counsel strongly against leaving execution of this judgment — a survey and subdivision of contested land, payment of a substantial sum to the 1st Protestor and the conveyancing of several parcels — in the hands of administrators drawn from one house alone, however blameless their conduct has been found to be. No misconduct is established against Lucy Kagwiria Rurua or Moses Thomas Muthomi and I do not remove them; but the proper and even-handed administration of an estate straddling two houses is best assured by joint representation. I therefore exercise the Court's inherent jurisdiction, of my own motion, to add Joanina Kiunga Rurua, the surviving widow, as a co-administrator of the estate alongside the 1st and 2nd Petitioners. 27. Each side has achieved only partial success in hard-fought family litigation over inherited land. I direct that each party bears its own costs, save that the sum due to the 1st Protestor and the general costs of administration shall be borne by the Estate. 28. The Grant of Letters of Administration Intestate issued on 27th July 2016 to Lucy Kagwiria Rurua and Moses Thomas Muthomi is CONFIRMED, subject to the following corrections and directions; - i) **The name of Joanina Kiunga Rurua should be made a co-administrator of the estate jointly with the petitioners herein as joint representation of both houses.** **(ii) The schedule of beneficiaries is corrected to record Joanina Kiunga Rurua as surviving widow.** **(iii) This court finds that the following parcels of land were transferred and or gifted inter vivos as follows:** 1. **L.R. No. Nakuru San Marco/819, measuring approximately 9 acres jointly to Francis Mugera Rurua and Grace Wangui Mugera.** 2. **L.R. No. Nakuru San Marco/820, measuring approximately 16 acres to Francis Mugera Rurua** 3. **L.R. No. Nakuru San Marco/825, measuring approximately 5 acres to Francis Mugera Rurua** 4. **L. R. Nakuru/San Marco 821, measuring approximately 5 acres to Peter Bundi Rurua** **(iv) The aforesaid parcels ie** **L.R. No. Nakuru/San Marco/819** **L.R. No. Nakuru/San Marco/820** **L.R. No. Nakuru/San Marco/821 and** **L.R. No. Nakuru/San Marco/225 do not therefore form part of the estate’s free estate** **(v) Parcels L R. No. Nakuru/San Marco/822, 823 and 824, and all parcels resulting from their combination and subdivision (Nos. 953, 961, 962, 963, 964, 965, 983 and 984), are declared to remain as part of the free estate available for distribution, subject to the rights of any third-party purchasers who are not parties herein. Nothing in this judgment shall be construed as determining or prejudicing interest of such purchasers. Any question concerning the validity of those transactions or the recovery of purchase funds must be pursued in the court with jurisdiction.** **(vi) The said residue, or such part as may be recovered, shall be distributed in five equal shares to Joanina Kiunga Rurua, Lucy Kagwiria Rurua, Stephen Muigai Rurua, John Kirima Rurua and Moses Thomas Muthomi Rurua, the advancements to Francis Mugera Rurua and Peter Bundi Rurua being treated, in hotchpot, as satisfying their respective shares in full.** **(vii) The 1st Protestor's claim for land in specie is declined; he is declared a creditor of the estate entitled to Kshs. 1,080,000/= (Kshs. 900,000/= plus 20%), payable by the Administrators in priority to distribution.** **(viii) Each party shall bear its own costs** **Dated, signed and delivered at Nakuru this 13th day of August, 2026.** **J. K. SERGON** **JUDGE** **In presence of:** Rutoh C/A Obura holding brief for Ombui for the Petitioner Chirchir holding bried for Chesoo for 1st protestor