https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9814

In re Estate of Kimari (Deceased) (Probate & Administration 508 of 2001) [2026] KEHC 9814 (KLR) (3 July 2026) (Judgment) Neutral citation: [2026] KEHC 9814 (KLR) Republic of Kenya In the High Court at Nyeri Probate & Administration 508 of 2001 MA Odero, J July 3, 2026 IN THE MATTER OF THE ESTATE OF TUMUTI KIMARI (DECEASED) In the matter of Victor Kimari Ndumuti Protestor Judgment 1.The Protestor herein Victor Kimari Ndumuti filed an Amended Affidavit of Protest dated 23rd June 2025. The matter was canvassed by way of written submissions. The Protestor filed undated submissions whilst the Respondent/Petitioners relied upon the written submissions dated 10th November 2025 and the Further Written submissions dated 5th May 2026. Background 2.This succession cause relates to the estate of the late Tumuti Kimari (hereinafter the Deceased) who died intestate on 17th July 1991. A copy of the Death Certificate Serial Number 236984 is in the Court file. The Deceased was a polygamous man who had two (2) wives both now deceased. The first wife (house) had five (5) children whilst the second wife (house) consisted of nine (9) children who include the Protestor. 3.Following the demise of the Deceased one Duncan Wachira Wahome filed a Petition for letters of Administration Intestate on Grant of Letters of Administration Intestate were on 17th April 2024 issued to Victor Kimari Ndumuti (the Protestor) Mueni Mwanzia and Grace Waithira Wachira. The 2nd and 3rd Administrators then filed a summons for Confirmation of Grant dated 29th August 2024. The Protestor (who is also an administrator of the estate) then filed an Affidavit of Protest dated 30th October 2024 and later filed the Amended Affidavit of Protest dated 23rd June 2025. 4.The Protestor objected to the mode of distribution of the estate as proposed his co-administrators in the summons for Confirmation of Grant dated 29th August 2024. He claims that the proposed mode of distribution does not reflect what was agreed between the parties/beneficiaries. Analysis And Determination 5.I have considered the Amended Affidavit of Protest, as well as the submissions filed by both parties. It is not in dispute that the estate of the Deceased consists of the following assets;-i.Parcel of Land known as LR Aguthi/Gathaithi/789.ii.Parcel of Land known as LR Aguthi/Gathaithi/790iii.Shares in Plot No. 16 and 17 Muthingaiv.Monies held in two Bank accounts in the name of the Deceased beinga.Standard Chartered Bank Nyeri Branch Account No.05xxxxxxxxxx33.b.Kenya Commercial Bank Nyeri Branch - account No.11xxxxx64. 6.The protestor’s main complaint was that the 2nd House had been largely left out in the proposed distribution of the estate. He denied that he was the sole surviving beneficiary from the 2nd House and asserts that the 2nd House in fact had eight (8) survivors all children of the Deceased being Mary Muthoni Wambugu Alice Nduta Mwangi (Deceased) Victor Kimari Ndumuti Jane Mweru Ndumuti Charity Wambui Ndumuti Purity Wangechi Ruo Wandia Ndumuti (Deceased) Ann Murugi Wachira Diana Mukami. 7.The Petitioners opposed the Affidavit of Protest and stated that during his lifetime, the Deceased had made gifts of parcels of land to the Protestor. They cited Section 42 of the Law of Succession Act Cap 160 Laws of Kenya. They argued that the sisters are not claiming any share of the estate, and were therefore excluded in the distribution. 8.A close scrutiny of the mode of distribution as proposed by the Respondents reveals that it names as beneficiaries several grand-children from the 1st House whereas from the 2nd House only the protestor is named as a beneficiary. This is despite the fact that the 2nd House also included several grand-children of the Deceased. 9.The Courts are replete with decisions to the effect that grandchildren can inherit directly from the estate of their grandparents in cases where their parents (being the children of the Deceased grandparents) are also deceased. In RE Estate Of Florence Mukami Kinyua(Deceased) [2018] eKLR it was held as follows;-“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 parents’ 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 no right to inherit their grandparents who die intestate after 1st July 1981. The argument is that such 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.” [Own emphasis] 10.Therefore all the grandchildren of the Deceased whose parents have died, are equal beneficiaries of the estate and all must be included in the distribution of the said estate save for those who formally and in writing waive their right to inherit. 11.In his Affidavit dated 23rd June 2025 the Protestor averred that the Deceased was survived by two (2) wives who are now both deceased. The Deceased was also survived by the following children;-1.1ST House (five Children)1.James Weru Tumuti2.Peter Mwangi Tumuti3.John Clement Kariuki Tumuti4.Joseph Maina Tumuti5.Rose Wambui Wahome2.2ND House (nine Children)1.Mary Muthoni Wambugu2.Victor Kimari Ndumuti3.Jane Mweru Ndumuti4.Purity Wangeci Ruo5.Ann Murugi Muchiri6.Diana Mukami Murungi7.Victor Kimari Ndumuti 12.Out of the above list of beneficiaries (which was not challenged by Petitioners) some of the children of the Deceased have passed away. As such the share of such deceased beneficiaries ought to go to their respective estates (children). 13.I note that the grand-children from the 2nd House are notably absent from the proposed mode of distribution and further I note that the excluded grandchildren are all females. I reiterate that where a beneficiary has no interest in inheriting a share of the estate, he/she is required to indicate this by signing a letter of waiver to be filed in court. 14.The Petitioners defended their proposed mode of distribution of the estate arguing that during his lifetime the Deceased had made ‘gifts inter vivos’ of various assets to some of the beneficiaries. 15.Section 42 of the Law of Succession Act provides for gift inter vivos as follows:-Where -(a)an intestate has, during his lifetime or by will, paid, given or settled any property to or for the benefit of a child, grandchild or house;or(b)Property has been appointed or awarded to any child or grandchild under the provisions of section 26 or section 35, that property shall be taken into account in determining the share of the net intestate estate finally accruing to the child, grandchild or house. [Emphasis my own] 16.In the case of Khalifa Abdalla Khamis v Mohamed Abdalla Khamis [2021] eKLR Hon. Justice Nyakundi observed that it is a requirement that the right to dispose of property by will or gift is exacting in its requirement. Similarly Nyamweya J. (as she then was) in Re: Estate of the Late Gedion Manthu Nzioka (deceased) [2015] eKLR stated as follows:-“In law, gifts are of two types (gift inter-vivos and gifts made in contemplation of death (gifts Mortis Causa. For gifts inter-vivos, the requirements of law are that he said gift may be granted by deed, an instrument in writing, or by delivery, by a way of a declaration of a trust by the donor, or by way of resulting trusts or the presumption of gifts of land must be by way of registered transfer, or if the land is not registered it must be in writing or by a declaration of a trust in writing. Gifts inter-vivos must be complete for the same to be valid.” [Emphasis my own] 17.A close examination of the Summons for confirmation of Grant shows that only the five (5) children from the first house were named and the names of their children (grand-children of the Deceased) given. 18.From the 2nd House only the Protestor was named as a beneficiary. The other children from the 2nd house (whether alive or deceased) were not named. 19.Similarly I note that the consent to confirmation of Grant dated 29th August 2024 has not been signed by the children from the 2nd House. There is no indication that they were invited to sign the consent but declined to do so. Their names are omitted altogether. 20.I therefore find that the summons for confirmation is defective as it does not include all the beneficiaries of the estate. Additionally the beneficiaries from the second house were not invited to sign the consent. In the circumstances I find merit in this Protest. The same is allowed. The Administrators to file an Amended Summons for confirmation of Grant taking into account all the children of the Deceased. The beneficiaries who have no interest in the estate are to sign a waiver indicating this. Each party to meet its own costs. DATED IN NYERI THIS 3RD DAY OF JULY 2026.…..……………………MAUREEN A. ODEROJUDGE