https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6613

In re Estate of the Late Antonius Muthumbi Kimotho (Deceased) (Succession Cause 598 of 2015) [2026] KEHC 6613 (KLR) (Family) (14 May 2026) (Ruling) Neutral citation: [2026] KEHC 6613 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Law Courts) Family Succession Cause 598 of 2015 HK Chemitei, J May 14, 2026 IN THE MATTER OF THE ESTATE OF THE LATE ANTONIUS MUTHUMBI KIMOTHO (DECEASED) Between Faith Wanjiku & 4 Others 1st Petitioner Leonard Mburu Kimotho 2nd Petitioner Julie Wanjiku Kimotho 3rd Petitioner Stephen Kigera Muthumbi 4th Petitioner and Mary Wangui Kimemia 1st Objector Esther Mumbi Gichuru 2nd Objector Ruling 1.The deceased herein died intestate on 11th December 2013. A grant was issued to the Applicants/Petitioners on 3rd October 2017 and they filed an application dated 9th April 2018 seeking to confirm the same. 2.The 1st and 2nd Objectors did file objection proceedings dated 7th February 2018 and 10th April 2018 respectively on the grounds that they were both wives of the deceased and that they had been left out by the applicants. 3.The court gave directions that the objection proceedings be consolidated on 9th May 2018 and be determined by way of viva voce evidence. 4.The parties did file their written submissions after the close of the proceedings. 5.It is necessary to look at the evidence as presented by the parties at this juncture in summary. 6.The first Objector, Pw1 Mary Wangui Muthumbi testified that the deceased was her husband whom they married each other under Kikuyu customary law which took place at her parents home in Limuru in 1996. 7.That the dowry was paid to her uncles and that she had a son called Jasper with the deceased. She said that they had some differences but it was mediated upon and they continued living together as husband and wife. 8.When cross examined, she said that there were witnesses to the ceremony and further that she swore an affidavit dated 6th January 1997 in which she said that she was not married to the deceased and that no dowry was paid. 9.She said however that they stayed together until his death. That she did not add his name in the national identity card but her driving license bore his name as well as other legal documents. 10.When re-examined she said that she had filed for divorce but the same was not concluded as they reconciled. 11.Pw2 Stanley Munga Waweru adopted his statement and stated that he had known the deceased from 1970 and that he used to collect milk from his home. 12.When cross examined, he said that he did not know Teresia Nyambura but he knew her mother. 13.He said that he knew the deceased paid dowry to the Objectors’ parents. He was part of the group that went paying the dowry. 14.He appreciated that there were differences between the deceased and the first Objector. 15.Pw3 Joseph Kimani Ndirangu testified that he was 72 years old and understood the Kikuyu customs. He explained how Ngurario ceremony is undertaken and he relied on his statement dated 15th March 2019. 16.He said that Mary’s mother was his cousin and he knew that she was the deceased wife and that he was at the ceremony although he could not recall who took the minutes. That a sum of Kshs 15,000 was paid in 1986. 17.Pw4 the 2nd Objector Esther Mumbi Gichuru relied on her statement dated 20th July 2018. 18.She said that she stayed with the deceased from 1996 till he died and were blessed with one son called Boniface and that he had another son and the deceased treated all as his children. 19.When cross examined, she said that there was no dowry which was paid but only gave gifts to her parents. That they did not formalize their marriage but he paid fees for the children. 20.The witness also produced and relied on sets of photos some taken at Langata cemetery probably during the funeral. 21.She said that she lived in Mountain view and the deceased paid her rent although she did not have any evidence. 22.She said that he adopted the child Eddy as his son although there was no evidence of adoption. 23.The Petitioner Dw1 Teresia Nyambura Muthumbi, the deceased widow, relied on her statement dated 2nd May 2018 as part of her evidence. 24.She denied that she knew the Objectors at all. 25.When cross examined, she said that she did not have a marriage certificate as her marriage with the deceased was customary. 26.She said that she stayed in Karen with the deceased and did not see Mary at all. 27.She confirmed that Jasper was the deceased son with Mary. 28.She said further that she stayed with the deceased from 1973 till his death. 29.She said that she saw the second Objector in court and that she did not know Boniface Kibue her son despite being shown the birth certificate. 30.When re-examined she said that Mary swore an affidavit dated 6th January 1997 denying the marriage between her and the deceased. 31.Dw2 Faith Wanjiku Kimotho the daughter of the deceased with her late wife Florence Nyambura testified and relied on her affidavit dated 8th November 2018. 32.She denied that she knew Esther the Objector and that she saw her in court. Neither did she know one Eddy Gichuru nor Boniface 33.She admitted that Mary sired Jasper Kimotho with the deceased. 34.When cross-examined further she said that Mary were friends with the deceased. 35.She denied that Mary ever lived in Karen. At Karen, she said that there are three houses, one of which belonged to her grandmother. Her mother Teresia stayed in Karen from 1973 to 2013 when she moved to Rongai. 36.She said that the deceased had sold one of the houses to one Norman Ndirangu but denied that he was the one sponsoring the case herein. 37.When referred to the eulogy she said that the name of Mary was contained in the eulogy and the same was included because they wanted a peaceful send off of the deceased. 38.She said that the estate assets are intact and none has been sold. 39.Further that there was a criminal case at Kibera Number 3145 of 2015 in which Mary Wangui Kimemia is the accused although the case has not been concluded. 40.She denied that eulogy was a legal document but it was just to give the deceased a good sent off. 41.Dw3 Julie Wanjiku Kimotho testified and relied on her testament dated 8th November 2018. She said that she was the daughter of the deceased and that Teresia was her mother. 42.She denied that she knew Esther and that she saw her in court for the first time. She said that she did not know Eddy Mumbi nor Boniface Mumbi but acknowledged Jasper whom the deceased sired with Mary. 43.She said that she stayed both in Rongai and Karen. The Karen property had three houses but currently they are two one having been demolished and the other one rented out. 44.On eulogy she said that they were in a mourning mood and did not want to complicate matters and that is why they added Mary’s name. 45.As stated above parties filed submissions except the 2nd Protestor. Analysis And Determination 46.I have perused the submissions by the 1st Protestor dated 10th June 2025 and the Petitioners dated 28th November 2025 extensively together with the cited authorities. 47.What is for determination as captured by the parties include whether the Protestors are indeed wives of the deceased and whether or not their children indeed were sired by the deceased. 48.As clearly submitted by the Petitioners the position of Teresia, the widow to the deceased was never an issue as it was evident that they were married from 1973 until his demise. The deceased first wife Florence Nyambura predeceased him as she died on 24th December 2009. 49.The deceased’s children with Teresia are uncontested and it is my considered view that Teresia was a legitimate wife to the deceased. 50.As for the second Protestor Esther Mumbi Gichuru she did not provide any evidence to support her claim. She stated that they lived together with the deceased for a period of six months and that she recognised her two children as his. 51.There was no evidence whatsoever that the deceased adopted the two children. 52.I find no sufficient evidence to suggest that there was any marriage between her and the deceased and neither do I find any evidence that the deceased recognised her in any manner. 53.There was no evidence of any marriage ceremony and the same does not qualify as a long-term marriage to qualify for the principal of long cohabitation and repute as was emphasized in M N K v P O M; Initiative For Strategic Litigation In Afrcia (isla) (amicus Curie) Petition No 9 OF 2021 (2023) KESC 2 (KLR). 54.The Mpesa transactions she relied upon to suggest that the deceased paid for her children’s fees are unverified and further the payment of Kshs. 4,000 towards the circumcision of one of her children does not exhibit any prove of any marriage with the deceased. 55.As for the 1st Objector, although there was some oral evidence of customary marriage under the Kikuyu customary law I am not persuaded for the following reasons. 56.First of all, there was no evidence that the sums of Kshs 15,000, Kshs 22,000 and Kshs 20,000 taken as dowry by the deceased in the years 1986, September 1986 and 1989 respectively was given to the 1st Objectors parents. It was the witnesses’ word alone. If indeed the three trips were made then it would have been prudent to have such accounts documented, even one at least. 57.More significantly is the affidavit by the 1st Protestor dated 6th January 1997. The same categorically denies any marriage between her and the deceased. 58.She goes on to state as hereunder:“That the ceremonies and rituals that create a legal customary marriage were also not performed. “ 59.Although the basis for the said affidavit was not explained, the fact that she denies any rituals being undertaken lance credence to my findings that there was no marriage ceremony and the amount of money stated above in form of dowry was not true. 60.Paragraph 7 thereof is poignant. The same states:“That the said Anthony Muthumbi Kimotho has no basis in law to claim that any marital bond exits between him and myself. “ 61.The affidavit was never withdrawn nor denied by the 1st Protestor. It remains a strong legal document under oath. Despite her allegations that she swore the same under anger, there was no reason for the said anger. Several years later she ought to have withdrawn the “angry affidavit.” 62.Further, although there was an affidavit of marriage dated 16th May 1989 by the deceased and the 1st Objector indicating solemnization of the marriage the same is negated by the affidavit of 6th January 1997. 63.More importantly there was no evidence led to suggest that the deceased lived with the 1st Protestor as husband and wife. 64.The three houses at Karen do not indicate that the deceased stayed with the 1st Protestor in any of them or in any other place for that matter. 65.There was evidence of adding her names in her official documents. I respectfully do not think that the same amounts to any marriage in view of what I have stated above. 66.The proper way perhaps was for the said Protestor to actuate her divorce which according to her was not concluded. 67.In the premises and barring any other factors which I cannot find I hold that the 1st Protestor might have been simple love birds with the deceased but not married in any manner or style. 68.As regards the children I do not find any evidence that Boniface Kibue was sired by the deceased and the 2nd Protestor as earlier alluded above. 69.Although a birth certificate was produced, I find the same suspect as the child was born in 1999 and the certificate registered on 25th June 2014, 15 years after his birth and seven months after the deceased death. 70.In any case the name of the deceased was inserted after his death and he could obviously not grant his consent. The 2nd Protestor in any case did not explain why it took her 15 years to obtain the said certificate yet the deceased was alive. If the child was his there would not have been any reason noting that the same is now easily obtainable and is a necessary instrument in all registration especially in schools and other institutions. 71.Neither did she provide any evidence that the deceased paid the child’s fees at Nginduki Primary School or at all as she claims in her statement. 72.The photos she produced in my view were insufficient without any corroboration. Photos could be taken anywhere by anybody at any moment and does not on their own mean any relationships. There must some added evidence. 73.Similarly, there was no evidence that Eddy Gichuru was adopted by the deceased or for that matter accepted by him before he died. There was no evidence that he maintained him in any manner whatsoever. 74.On the other hand, Jasper Kimotho the son to Mary Muthumbi was acknowledged across the board that he was deceased son and for that matter he qualifies to inherit from the estate. The Petitioners too acknowledged the same as indicated in the P& A form 5 on record. 75.In the premises I hold and find as hereunder:(a)The 1st and 2nd Protestors are not the deceased’s wives or at all and do not qualify for any inheritance in the estate herein and their objections are hereby dismissed.(b)Jasper Kimotho is a son to the deceased.(c)The application dated 9th April 2018 is hereby allowed and the Administrators directed to file a proposed mode of distribution forthwith.(d)Costs in the cause. DATED SIGNED AND DELIVERED AT NAIROBI VIA VIDEO LINK THIS 14TH DAY OF MAY 2026.H K CHEMITEIJUDGE