https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6841

REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAIROBI FAMILY DIVISION SUCCESSION CAUSE NO. 308 OF 1997 IN THE MATTER THE ESTATE OF GACHERU WANDAKA (DECEASED) LUCY WANJIRU THAIRU ……………. 1ST APPLICANT/OBJECTOR JOYCE NJERI MUKIRA ………………. 2ND APPLICANT/OBJECTOR VERSES EVERSON GACHERU MBUGUA ………………….. 1ST RESPONDENT STANLEY KARUGA MBUGUA ……………………. 2ND RESPONDENT JAMES MUNGAI MBUGUA ……………………….. 3RD RESPONDENT JUDGEMENT 1. The deceased herein died intestate on 16th September 1985 leaving behind his two wives Njoki Gacheru and Leah Watiri Gacheru. SUCCESSION CAUSE NO. 308 OF 1997 RULING Page 1 of 16 po/ hkc 2. The house of Njoki, 1st Widow, was blessed with two sons namely Mbugua Gacheru and Karuga Gacheru while the second Widow Leah had one daughter Marion Wairimu Gacheru. 3. The deceased only property and now subject of contention is land parcel number Kabete/Karura/183. 4. After the death of the deceased Mbugua Gacheru took out letters of administration without involving the rest and the grant issued to him was confirmed on 11th December 1998. 5. The second son Karuga Gacheru successfully had the said grant revoked. 6. Apparently, all the deceased children passed on and the Applicants as well as the Respondents are the deceased grandchildren. 7. The court on 26th June 2024 issued fresh grant to the four, namely, Lucy Wanjiru Thairu who was the deceased grandchild born by his daughter Marion Gacheru, Evanson Gacheru Mbugua, John Njoroge Karuga and Peter Karanja from the deceased other two sons respectively. 8. The battle therefore between them is on distribution of the above stated property. The Objectors are claiming that their deceased mother was never married and that even at the time their grandmother was alive they ploughed and worked on the portion of the land. SUCCESSION CAUSE NO. 308 OF 1997 RULING Page 2 of 16 po/ hkc 9. On the other hand, it is the Respondent’s case is that the land ought to be shared out between the deceased two sons as that was his original intention. 10. The court directed the matter to be determined by way of oral evidence. 11. It is noteworthy therefore at this juncture to summarise their evidence as presented. 12. Pw1 Lucy Wanjiru Thairu while relying on her witness statement dated 17th October 2017 testified that they had been ploughing the suit land for many years from the time they were young. The portion they ploughed was the one belonging to her grandmother who had only one child and who was her mother. 13. She said that her grandmothers house was in the middle and that the deceased had divided his house between his two sons. 14. When her grandmother passed on they were stopped by Mbugua from working on the land and he proceeded to cut the trees and divided the land into five portions. He accused the Respondents who were her cousins of stopping them from ploughing the land. She further stated that their portion was the smallest. 15. When cross examined, she said that the land had been divided into three portions between Mbugua, her grandmother and Karanja Gacheru, the deceased children. SUCCESSION CAUSE NO. 308 OF 1997 RULING Page 3 of 16 po/ hkc 16. She said further that her grandfather died in 1985, grandmother in 1995 and her mother in 2022. Her grandmother came from the second house. 17. When shown the sketch plan, she said that the same did not indicate the names of anybody, neither the number of the land and that the document written in Kikuyu language did not indicate the number of the land. 18. Pw2 John Njoroge Karuga testified on behalf of Francis, Peter and Jack all his brothers. He acknowledged that the Objectors were his cousins and that their mother was his Aunt. 19. He said that the land belonged to his grandfather and had divided it into three with the middle portion belonging to the Objectors. He said that he was in agreement with the sub division. 20. When cross examined, he said that the Objectors had a right of getting a share in the land. 21. Dw1 James Muigai Mbugua relied on his statement dated 7th November 2024. He acknowledged that the Objectors were his cousins. 22. He said on cross examination that his father wanted a compensation for the contribution towards the land. He said that the deceased did not have another parcel of land. SUCCESSION CAUSE NO. 308 OF 1997 RULING Page 4 of 16 po/ hkc 23. He further said that the Objector Lucy was ploughing the middle part of the land and that is where the deceased was buried. 24. Dw2 Peter Karanja Mbugua the son to Mbugua Gacheru and one of the Administrators testified that he was 75 years old and stays on the land. He said that the grandmother to the Objectors ploughed the land and that the Objectors as well ploughed while the said grandmother was alive. 25. When cross examined further, he said that his father redeemed the land from the clan and that since the Objectors’ mother was married, she ought to get land elsewhere. 26. The Applicant has filed written submissions dated 22nd October, 2025 and the Objectors have filed written submissions dated 1st December, 2025 and 5th December, 2025 and I wish not to reproduce the same here. ANALYSIS AND DETERMINATION 27. I have gone through the applications, the responses thereto and the rival submissions and the cited authorities. 28. The issues arising for determination are whether the Applicant’s, being grandchildren of the deceased through Marion Wairimu Gacheru, are entitled to inherit from the estate; whether the alleged declarations and SUCCESSION CAUSE NO. 308 OF 1997 RULING Page 5 of 16 po/ hkc testamentary documents relied upon by the Objectors constitute a valid Will or otherwise exclude the Applicants from inheritance; and finally, what constitutes the proper mode of distribution of L.R. No. Kabete/Karura/183. 29. Are the beneficiaries entitled to inherit from the estate and more particularly the Objectors? 30. In Ngingo v Mwangi & 2 others [2023] KEHC 24817 (KLR) the court pronounced itself as follows: “… 9. In my view and from the foregoing, the issue for determination is whether the Respondents are entitled to claim the estate of the deceased as grandchildren in place of their deceased parents. 10. To begin with, the appellant is right to lay claim on the estate of the deceased. However, the question arises as to whether she is the only child surviving the deceased. From the evidence, it is true that the Appellant is one among four siblings and three of them are already dead. The Respondents are the children of two of those deceased siblings of the Appellant, meaning that the Respondents are grandchildren of the deceased. The law guides us on the issue of inheritance by grandchildren of the deceased. 11. Section 38 of the Law of Succession Act provides that: Where an intestate has left a surviving child or children but no spouse, the net intestate estate shall, subject to the provisions of SUCCESSION CAUSE NO. 308 OF 1997 RULING Page 6 of 16 po/ hkc sections 41 and 42, devolve upon the surviving child, if there be only one, or shall be equally divided among the surviving children. 12. Clause 4 of the Second Schedule to the Probate and Administration Rules provides: In determining the degree of consanguinity of a person from the deceased by tracing through an intermediate relative it is not necessary that such relative was living at the death of the deceased, e.g. a grandchild of the deceased living at the latter’s death would be included among the relatives notwithstanding that his parent (i.e. the deceased’s child) had died before the deceased. 13. It is trite that grandchildren of the deceased cannot inherit directly from the estate of the deceased but only through their parents by taking the place of their deceased parents in the estate of the deceased. The same applies when the parents of the grandchildren die before distribution of the estate of the deceased. In the case of In re Estate of Florence Mukami Kinyua (Deceased) [2018] eKLR where it was held thus: “A grandchild is a direct heir to the estate of the grandparent where the parent predeceased the grandparent. The grandchildren get into the shoes of their deceased parents and take the parent’s SUCCESSION CAUSE NO. 308 OF 1997 RULING Page 7 of 16 po/ hkc share in the estate of the grandparents. This was stated in Re Estate of Wahome Njoki Wakagoto (2013) eKLR where it was held: -“Under Part V, grandchildren have not right to inherit their grandparents who die intestate after 1st July 1981. The argument is that such grandchildren should inherit from their own parents. This means that the grandchildren can only inherit their grandparents’ indirectly through their own parents, the children of the deceased. The children inherit first and thereafter grandchildren inherit from the children. The only time grandchildren inherit directly from their grandparents is when the grandchildren’s own parents are dead. The grandchildren step into the shoes of their parents and take directly the share that ought to have gone to the said parents.” 31. In In re Estate of Samson Murithi M’mugambi (Deceased [2019] KEHC 10726 (KLR) the court stated as follows: “… Of daughters 23. The daughters of the deceased have been side-lined in the distribution of the estate. The law of the succession Act provides for equal distribution of the estate when the deceased dies intestate as is in this case. The distribution of the estate should therefore not favour a particular gender and exclude the other as this will be tantamount to discrimination and an upfront to SUCCESSION CAUSE NO. 308 OF 1997 RULING Page 8 of 16 po/ hkc Article 27 of the Constitution that protects persons from discrimination on the basis of gender and/or sex or status. 24. Bizarre as it may sound the petitioner and 1st Administrator seems to justify exclusion of the daughters of the deceased from inheritance because they are women. They are seeking exclusive interest in the estate of the deceased. This Court will not tire to banish the ugly patriarchal garment of discrimination against women whenever it stalks the path of justice. There can never be justice until all forms of discrimination including against women are eliminated. 25. The deceased died intestate. From the evidence, the 2nd Administrator got his share of the estate, being land in Kibiricha measuring 8 acres during the lifetime of the deceased. I will take that bequest into consideration. 26. The distribution of the estate of the deceased is governed by Section 40 of the Law of Succession Act which provides; 40. (1) Where an intestate has married more than once under any system of law permitting polygamy, his personal and household effects and the residue of the net intestate estate shall, in the first instance, be divided among the houses according to the number of children in each house, but also adding any wife surviving him as an additional unit to the SUCCESSION CAUSE NO. 308 OF 1997 RULING Page 9 of 16 po/ hkc number of children. (2) The distribution of the personal and household effects and the residue of the net intestate estate within each house shall then be in accordance with the rules set out in sections 35 to 38. 27. I should also consider the claim by the grandsons. Grandsons do not supersede the children of the deceased. The only two instances when grandsons take a share directly from the estate of the deceased are; (1) when they bring themselves under Section 29(b) of the Law of Succession Act; or (2) when they are taking the share of their deceased parent- a beneficiary of the estate. See Cleopa Amutala Namayi v Judith Were [2015] eKLR. What is the position in this case? 28. The grandsons are said to have been taking care of their grandfather prior to his death and have in turn became dependants of his estate. Joshua Kinoti even built in the estate. They shall therefore have a share in the estate of the deceased…” 32. The evidence on record unequivocally establishes that Marion Wairimu Gacheru was a biological daughter of the deceased and that Lucy Wanjiru Thairu and Joyce Njeri Mukirai are her daughters. The Objectors themselves admit this relationship but seek to exclude the Applicants on the basis that Marion Wairimu married elsewhere and SUCCESSION CAUSE NO. 308 OF 1997 RULING Page 10 of 16 po/ hkc that neither she nor her daughters occupied or developed the suit property. 33. That position is inconsistent with both the Law of Succession Act and the Constitution. Grandchildren inherit by representation where their parent, being a child of the deceased, has died before distribution of the estate. The grandchildren step into the shoes of their deceased parent and take the share that would have accrued to that parent. The argument that daughters who marry elsewhere cease to inherit from their paternal lineage is discriminatory and contrary to Article 27 of the Constitution. Courts must reject patriarchal notions that seek to exclude daughters or their descendants from inheritance on account of gender or marital status. Accordingly, the Applicants are lawful beneficiaries of the estate through their deceased mother, Marion Wairimu Gacheru (deceased). 34. The Objectors further contend that the deceased left behind oral and written declarations allocating the land exclusively to Mbugua Gacheru and Karuga Gacheru and that the latter acquired superior equitable interests in the land through contribution and participation in prior disputes. 35. Rahab Nyakangu Waithanji vs Fredrick Thuku Waithanji (2019) eKLR where the court held that the purported will was not properly executed and failed SUCCESSION CAUSE NO. 308 OF 1997 RULING Page 11 of 16 po/ hkc to meet the test of validity as set out in Section 11 (c) of the Law of Succession Act as no witnesses were available to confirm execution of the will and the Judge referred to the case of Veronica Njoki Mungai (Deceased) (2017) eKLR where it was held that key players should testify on the making of the will. It was therefore found that the proceedings were defective and the grant was revoked." 36. John Wagura Ikiki & 7 others v Lee Gachigia Muthoga [2019] KECA 751 (KLR) where the court quoted with approval Honourable Justice Githinji in Karanja & another v Karanja [1999] KEHC 181 (KLR) where it was held that: “Where the will is regular on the face of it with an attestation clause and signatures of attesting witnesses and the signature of the testator, there is a rebuttable presumption of due execution (Omnia esse riteatta).” 37. The alleged testamentary documents produced by the Objectors do not meet the threshold for validity under Sections 9 and 11 of the Law of Succession Act. The purported written declaration dated 22nd November, 1981 was not shown to have been properly executed or attested by competent witnesses in accordance with Section 11 of the Act. 38. The validity of a Will must be proved through proper execution and testimony of attesting witnesses. Similarly, SUCCESSION CAUSE NO. 308 OF 1997 RULING Page 12 of 16 po/ hkc the presumption of due execution only arises where the Will is regular on its face, bears proper attestation clauses and contains signatures of the testator and witnesses. The alleged declarations herein fall short of that standard. They appear more in the nature of family arrangements or records of disputes before elders and the Assistant Chief rather than a legally enforceable testamentary instrument capable of disinheriting an entire line of beneficiaries. 39. Moreover, the title deed for Kabete/Karura/183 remained registered in the deceased’s name, thereby confirming that the land legally formed part of the deceased’s estate at the time of his death. 40. The viva voce evidence nevertheless demonstrates that Mbugua Gacheru and Karuga Gacheru occupied, defended and developed substantial portions of the land over many years and that the deceased had physically settled the various family houses on the ground during his lifetime. This court must therefore strike a balance between the statutory principles of intestate succession and the historical occupation pattern acknowledged by the parties themselves. 41. The evidence by John Njoroge Karuga is particularly instructive because, while supporting the Applicants’ entitlement to inherit, he also recognized the historical subdivisions and occupation boundaries existing on the ground. SUCCESSION CAUSE NO. 308 OF 1997 RULING Page 13 of 16 po/ hkc 42. In the circumstances, I find that the fairest and most legally sound approach is to distribute the estate either among the three houses representing the deceased’s three children, namely Marion Wairimu Gacheru, Mbugua Gacheru and Karuga Gacheru, with each house inheriting by representation through the surviving grandchildren or alternatively to each and every beneficiary who is the deceased grandchild. Such distribution accords with Sections 38, 40 and 41 of the Law of Succession Act and preserves, as far as practicable, the historical occupation and settlement pattern established by the deceased during his lifetime. 43. I have looked at the proposal made by Lucy Thairu the Objector in which she suggested that the land be split into three, that is, the houses of Karuga Gacheru and Mbugua Gacheru each to get 1.599 hectares which is about 3.8 acres or thereabouts and their house to get 0.761 hectares which is roughly 1.82acres. 44. This looks fine safe to state that when divided against the twelve grandchildren the Objector and her sister are likely to get 0.2 of an acre more than the rest of their cousins. The bottom line herein is that all of them have equal rights to inherit their grandfather’s estate equitably. 45. In the premises I find that the best approach is to have the land divided equally among all the twelve of them. At the level of carrying out the survey exercise they must SUCCESSION CAUSE NO. 308 OF 1997 RULING Page 14 of 16 po/ hkc ensure that each of them remains as proximately as possible where they have settled over the years without much interruptions of the capital developments. 46. Consequently, the summons for confirmation of grant dated 22nd July 2024 is hereby allowed and the grant issued on 26th June 2024 is confirmed and land parcel number Kabete/Karura/183 is shared out equally as hereunder:- (a) JOHN NJOROGE KARUGA, PETER MBUGUA KARUGA, JACK KARUGA WANGARI, CYRUS KARUGA KARONGO, FRANCIS KARORI KARUGA (from the house of KARUGA GACHERU), (b)CHARLES NJUNGE MBUGUA, EVANSON GACHERU MBUGUA STANLEY KARUGA MBUGUA, PETER KARANJA MBUGUA AND JAMES MUNGAI MBUGUA (from the house of MBUGUA GACHERU), (c) LUCY WANJIRU THAIRU AND JOYCE NJERI MUKIRAI (from the house of MARION WAIRIMU GACHERU). (d) The matter being family, each party shall bear respective costs. Dated signed and delivered at Nairobi via video link this 21st day of May 2026. H K CHEMITEI JUDGE SUCCESSION CAUSE NO. 308 OF 1997 RULING Page 15 of 16 po/ hkc SUCCESSION CAUSE NO. 308 OF 1997 RULING Page 16 of 16 po/ hkc