https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11780

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT MILIMANI** **FAMILY DIVISION** **SUCCESSION CAUSE NO. 1293 OF 2002** ***IN THE MATTER OF THE ESTATE OF DANIEL WANGEWA KAMAU (DECEASED)*** **SOPHIA WAMBUI KIMANI .…… 1ST APPLICANT** **SUSAN WANDIA GICHERU .........2ND APPLICANT** **NELLY WANJIKU THIONGO ..........3RD APPLICANT** **-VERSUS-** **PATRICK K. WANGEWA …...............1ST RESPONDENT/PROTESTOR** **PETER K. WANGEWA ..................2ND RESPONDENT/PROTESTOR** **RULING** 1. The proceedings presently before this Court represent the culmination of a protracted, deeply contentious, and legally complex succession dispute that has engaged the judicial system for over two decades. The Deceased peacefully departed this life on 21 June 2001. The trajectory of this succession cause is emblematic of the profound tensions that frequently arise at the intersection of statutory inheritance frameworks, entrenched customary practices, and the imperative to protect acquired proprietary rights. 2. The genesis of the dispute dates back to the year 2002. Following the demise of the Deceased, a Grant of Letters of Administration Intestate was surreptitiously petitioned for and subsequently issued on 25 September 2002. This initial Grant was championed primarily by the male offspring of the Deceased, the Respondents/Protestors. On 9 June 2003, a Certificate of Confirmation of Grant was issued by this Court, effectively distributing the entirety of the Deceased's expansive real estate portfolio exclusively among the male beneficiaries. The female offspring of the Deceased were entirely excluded from this distribution matrix. The situation was further compounded on 18 June 2014 when an amended Certificate of Confirmation of Grant was issued, which continued to reflect a distribution pattern that wholly disenfranchised the daughters of the Deceased. 3. Upon discovering this material non-disclosure and the active concealment of their status as rightful beneficiaries, the Applicants, comprising the daughters of the Deceased, petitioned this Court for the revocation of the initial Grant. The Applicants demonstrated that the foundational proceedings leading to the 2002 Grant were fundamentally defective in substance and tainted by deliberate misrepresentation, thereby triggering the Court's statutory revocation powers. 4. On 23 September 2019, this Court delivered a comprehensive Ruling revoking the Grant of Letters of Administration issued on 25 September 2002, alongside the Certificate of Confirmation issued on 9 June 2003, and the amended Certificate of Confirmation issued on 18 June 2014. The Court exercised its unfettered discretion under Section 76 of the Law of Succession Act, observing that a Grant obtained through the concealment of material facts cannot be permitted to stand. As a remedial measure, a fresh, joint Grant was issued to the Applicants alongside the Protestors. This joint Grant was subsequently rectified on 14 July 2020, and the Court directed the newly appointed joint Administrators to file an application for confirmation proposing a lawful and equitable mode of distribution. 5. The matter is currently before the Court driven by Summons for Confirmation of Grant dated 29 September 2020, filed by the Applicants, seeking the confirmation of the rectified Grant and proposing an equal distribution of the Deceased's estate among all eleven surviving biological children or their respective estates. In fierce opposition, the Protestors filed an Affidavit of Protest dated 9 September 2022, aggressively challenging the inclusion of certain properties in the inventory and contesting the physical practicality of the proposed equal distribution. 6. By consent recorded during the inter partes hearing on 27 January 2026, the parties elected to dispense with *viva voce* testimony. Consequently, the Court admitted the Applicants' Supporting Affidavit dated 29 September 2020, the Applicants' List of Documents dated 26 March 2024, and the Protestors' Affidavit of Protest dated 9 September 2022 as the primary evidentiary record. The parties filed extensive written submissions, which the Court has carefully read and evaluated. **The Applicants' Case** 1. The Applicants assert that the Deceased died intestate possessed of a substantial estate comprising multiple parcels of prime real estate, primarily located in the Dagoretti/Kangemi and Dagoretti/Riruta areas of Nairobi County. The Applicants’ inventory of the estate, as presented in their Summons for Confirmation and Supporting Affidavit, comprises the following eleven registered land parcels: 2. Dagoretti/Kangemi/1228 measuring 0.15 hectares; 3. Dagoretti/Kangemi/1229 measuring 0.21 hectares; 4. Dagoretti/Kangemi/1230 measuring 0.20 hectares; 5. Dagoretti/Kangemi/1231, measuring 0.20 hectares, 6. Dagoretti/Kangemi/1232, measuring 0.12 hectares, 7. Dagoretti/Kangemi/1233, measuring 0.12 hectares, 8. Dagoretti/Kangemi/1234, measuring 0.17 hectares, 9. Dagoretti/Kangemi/1235, measuring 0.17 hectares, 10. Dagoretti/Kangemi/1236, measuring 0.72 hectares, 11. Dagoretti/Karandini/68, measuring 0.023 hectares, 12. Dagoretti/Riruta/51, measuring 0.359 hectares, 13. The Applicants propose that all the named properties should be jointly and equally among the 11 beneficiaries. 14. The Applicants maintain that certified copies of the Land Registers (the Green Cards) irrefutably demonstrate that the Deceased was the registered proprietor of these parcels at the exact time of his demise. They argue that the Protestors' fervent attempt to exclude parcels 1228, 1231, 1232, 1233, 1234, and 1235 on the premise that they were gifted *inter vivos* to the male children is factually flawed and legally untenable. Relying on the strictures of Section 108(1) of the repealed Registered Land Act, the Applicants assert that no written instruments of transfer were ever executed by the Deceased. Consequently, they argue that the alleged gifts remained imperfect, never translating into legal transfers of ownership, thus rendering the properties the free property of the Deceased subject to intestate succession. 15. Furthermore, the Applicants invoke the equitable doctrine of estoppel. They highlight that the Protestors had previously sworn Affidavits in 2003 and 2013 admitting that these very properties formed part of the Deceased's estate in order to secure the initial, now-revoked Grants. The Applicants submit that the Protestors cannot be permitted by this Court to approbate and reprobate—acknowledging the properties as part of the estate when it suited their exclusive distribution schema, only to disavow them when the female beneficiaries seek their rightful, equitable shares. **The Protestors' Case** 1. The Protestors, represented by the 2nd Respondent mounted a vigorous defence predicated on the finality of completed *inter vivos* transfers, the strict protection of third-party purchaser rights, the sanctity of customary norms, and the practical absurdity of the Applicants' proposed distribution. The Protestors argue that the estate inventory has been impermissibly enlarged by the Applicants, who have sought to drag properties that the Deceased had fully alienated during his lifetime back into the succession matrix. 2. Specifically, the Protestors advance four primary contentions. Firstly, they argue that Properties Dagoretti/Kangemi/1228, 1231, 1232, 1233, 1234, and 1235 were unconditionally gifted to the sons prior to the Deceased's death. They assert that these lifetime gifts were executed in accordance with Kikuyu customary law, under which ancestral land is traditionally bequeathed solely to male heirs. They posit that these gifts were fully complete, evidenced by the fact that the male beneficiaries immediately took vacant possession of their respective parcels and have since erected substantial, permanent residential structures thereon over the last two decades. They argue that to revoke these gifts now would amount to a retrospective nullification of settled property rights. 3. Secondly, the Protestors assert that Property Dagoretti/Karandini/68 does not form part of the free estate because it was lawfully sold to a third party on 13 July 2005. They submit that this transaction occurred during the lifetime of the Deceased's widow, Loise Muthoni Wangewa, who passed away on 8 December 2007, to generate funds required to offset her escalating medical bills. Since the widow held an overriding life interest in the estate, the Protestors contend this sale was an administrative necessity and the property is no longer available for distribution. 4. Thirdly, the Protestors submit that Property Dagoretti/Riruta/51 was legitimately subdivided in 2006. A one-eighth (1/8) portion of this parcel was sold to a *bona fide* third-party purchaser, the late Alice Nyambura Mungai. The Protestors furnished the Court with a Sale Agreement dated 13 July 2005 indicating that Alice Nyambura Mungai purchased the subdivision, took vacant possession, and subsequently undertook extensive capital developments, culminating in the construction of an apartment block. Upon her demise, this specific portion devolved to her son, Daniel Mungai Kung'u, through a finalized testate succession process (High Court Succession Cause No. 1915 of 2015). The Protestors argue that attempting to redistribute this alienated portion violates the indefeasibility of third-party titles protected under the Land Registration Act. 5. Lastly, the Protestors attack the physical and legal practicality of the Applicants' proposed distribution. They point out that subdividing microscopic parcels—some measuring a mere 0.12 Hectares or 0.15 Hectares—into eleven distinct, equal portions inherently violates physical planning and land control regulations. They argue that such a mathematical subdivision would result in absurdly small, economically unviable fragments and necessitate the destruction of permanent homes already constructed by the sons, thereby fostering endless familial conflict. **Analysis & Determination** 1. Upon an exhaustive and meticulous review of the pleadings, the Court finds that the resolution of this cause hinges on the determination of the following legal issues: 2. Whether this Court possesses the requisite jurisdiction to interrogate and determine the ownership status of properties claimed to have been transferred *inter vivos* or alienated to third parties; 3. Whether the alleged lifetime gifts of the Dagoretti/Kangemi parcels to the male beneficiaries were completely constituted in law, thereby validly removing them from the free property of the Deceased; 4. Whether the subsequent sale and transfer of specific portions of the estate (namely Dagoretti/Karandini/68 and the 1/8th portion of Dagoretti/Riruta/51) to third-party purchasers are statutorily protected despite the eventual revocation of the initial grant of representation; 5. Whether the application of Kikuyu customary law is legally sustainable and enforceable under the progressive framework of the Constitution of Kenya, 2010. 6. Assuming the disputed properties form part of the net intestate estate, what constitutes the most equitable, practical, and least disruptive mode of distribution. The Jurisdictional Competence of the Probate Court 1. A preliminary, though implicitly raised, hurdle in this matter is whether this Court possesses the jurisdictional competence to essentially strip *inter vivos* donees or third-party purchasers of their purported titles and claw properties back into the estate matrix. The jurisdiction of the High Court in probate and administration matters is statutorily ring-fenced, and it is imperative that this Court does not overstep its jurisdictional boundaries. 2. Jurisprudence emanating from the superior courts has consistently and rigidly delineated the boundaries of the probate court. As stated in ***In re Estate of Atibu Oronje Asioma (Deceased) KEHC 11046 (KLR)*,** the probate court is constituted for one overarching purpose: the distribution of the property of a deceased person. The mandate of the probate court is inherently limited to the distribution of undisputed assets. Where a complex, substantive dispute arises regarding the foundational ownership of an asset—such as a claim for a declaration of a resulting trust, adverse possession, or a sophisticated land fraud dispute—the High Court sitting in succession lacks the requisite jurisdiction. Such proprietary disputes must be deferred to the Environment and Land Court (ELC), which holds exclusive jurisdiction over disputes relating to the environment and the use and occupation of, and title to, land pursuant to Article 162(2)(b) of the Constitution and Section 13 of the Environment and Land Court Act. This precise jurisdictional limitation was recently reaffirmed in ***Kilongosi v Kilongosi & 4 others KEHC 10575 (KLR)*,** which reiterated that core disputes involving land ownership and proprietary rights fall entirely outside the purview of the succession court. 3. However, this jurisdictional limitation must be carefully and correctly nuanced to avoid rendering the probate court entirely toothless when confronted with a contested schedule of properties. Under Section 47 of the Law of Succession Act, the court possesses the inherent, supervisory jurisdiction to determine what actually constitutes the free property of the deceased. Section 3 of the Act defines free property as the property which the deceased was legally competent to freely dispose of during his lifetime, and in respect of which his interest has not been terminated by his death. 4. When an administrator lists a property in the statutory inventory under Section 51 of the Act, and an objector subsequently claims that the property was gifted to them by the deceased before death, the probate court retains the jurisdiction to conduct a *prima facie* inquiry into whether the deceased successfully and legally divested themselves of the title before their demise. If the documentary evidence unequivocally demonstrates that the deceased remained the registered proprietor at the exact time of death without executing any valid transfer instruments, the property is deemed free property subject to the court's distribution mandate. The Court is not determining a complex trust or title dispute; it is simply ascertaining the contents of the deceased's estate based on official registration records. 5. In the instant case, the Applicants have furnished the Court with official certificates of official search from the land registry confirming that the Deceased remained the registered proprietor of the disputed Dagoretti/Kangemi parcels at the time of his death. The Protestors do not claim adverse possession or a resulting trust; they claim the properties were gifted to them. Therefore, this Court possesses the full jurisdictional competence to examine the legal validity of these alleged *inter vivos* gifts to ascertain if the properties legitimately form part of the free estate. If the gifts were legally incomplete, the properties remain in the estate for distribution by this Court. The Legal Efficacy of the Alleged Gifts *Inter Vivos* 1. The Protestors aver that Dagoretti/Kangemi parcels 1228, 1231, 1232, 1233, 1234, and 1235 do not form part of the estate as they were gifted to the sons during the Deceased's lifetime. They argue that because they took possession and built homes, the gifts are complete and irreversible. 2. In law, an *inter vivos* gift is a voluntary, unconditional, and immediate transfer of property from a donor to a donee for the immediate benefit and enjoyment of the recipient, without any valuable consideration passing. The foundational requirements for a valid and legally binding gift *inter vivos* of registered land are exceedingly stringent. To be legally effective, several elements must seamlessly coalesce: the donor must possess the requisite mental capacity, there must be a clear and unequivocal intention to make an immediate and irrevocable gift, there must be acceptance by the donee, and crucially, the gift must be completely constituted. 3. The Court of Appeal comprehensively and authoritatively addressed the mechanics of completing gifts of registered land in the *locus classicus* of ***Registered Trustees Anglican Church of Kenya Mbeere Diocese v David Waweru Njoroge [2007] eKLR*.** In that case, the Court evaluated whether a gift of land was revocable prior to formal registration. Relying heavily on established equitable doctrines and English precedents such as ***Macedo v Beatrice Stround AC 330* and *Mascall v Mascall (1984) 50 P & CR 119***, the Court of Appeal reaffirmed the foundational maxim that equity will not come to the aid of a volunteer to perfect an imperfect gift. If a donor merely promises to give land but fails to execute the necessary legal instruments, the gift is imperfect and unenforceable. 4. However, the Court noted a critical exception: if the donor has done absolutely everything within their statutory power to vest the legal interest in the donee—specifically, by executing the prescribed statutory transfer forms, obtaining necessary Land Control Board consents, and delivering the title documents to the donee—the gift is deemed complete in equity. Once the donor puts it beyond their power to recall the transfer, the gift is complete, even if the actual administrative act of registration at the Lands Registry has not yet occurred. 5. Applying this rigorous legal standard to the present dispute, the Protestors' claim of completed *inter vivos* gifts spectacularly collapses. At the time these gifts were purportedly made, the properties in question were governed by the strictures of the Registered Land Act (repealed). Section 108(1) thereof strictly and mandatorily required that any disposition of land, including a gift, be effected by an instrument in the prescribed form. 6. The documentary evidence on record, particularly the official land searches adduced by the Applicants, reveals that the Deceased remained the registered proprietor of these parcels until his death. Crucially, the Protestors have failed to tender even a scintilla of documentary evidence demonstrating that the Deceased ever executed formal transfer forms, sought the requisite Land Control Board consents, or delivered the original title deeds to the male beneficiaries with the demonstrable intention of completing the transfers during his lifetime. 7. As affirmed by the Court of Appeal in ***Munyole v Munyole KECA 373******(KLR)*,** a mere oral promise to give property—even if made at a formal family gathering—unaccompanied by the execution of statutory transfer instruments, constitutes an incomplete and wholly unenforceable gift. The courts are fundamentally unwilling to presume the existence of a valid gift without clear documentary evidence and actual legal delivery. Furthermore, as articulated in ***In re Estate of Mirikwa Werimo (Deceased) eKLR*,** where a deceased person points out portions of land for sons to occupy but never executes transfers or subdivides the title, the land remains the free property of the deceased and falls into intestacy. 8. Since the Deceased herein did not take the requisite statutory steps to legally divest himself of his proprietary interest, the alleged gifts to the sons remained imperfect. Consequently, under Section 3 of the Law of Succession Act, the legal and equitable interests in parcels 1228, 1231, 1232, 1233, 1234, and 1235 were never terminated prior to his death. They constitute the free property of the Deceased and are squarely available for distribution by this Court. 9. The Court further notes and upholds the Applicants' invocation of the doctrine of estoppel. The Protestors, in their own Affidavits dated 11 March 2003 and 29 October 2013, explicitly listed these exact properties as forming part of the Deceased's estate to facilitate the issuance and amendment of the previous grants. They actively utilized the probate process to distribute these properties amongst themselves. They cannot now, having been caught in their non-disclosure, be permitted by this Court to approbate and reprobate by claiming the properties fall outside the estate merely because their sisters now seek their equitable share. The argument regarding *inter vivos* gifts is dismissed in its entirety. The Protection of Third-Party Purchasers 1. While the Court has determined that the Dagoretti/Kangemi parcels remain firmly within the estate, the factual matrix surrounding Dagoretti/Karandini/68 and the subdivided portion of Dagoretti/Riruta/51 demands a markedly different legal analysis. 2. The Protestors have submitted cogent evidence that Karandini/68 was sold on 13 July 2005 to offset the escalating medical bills of the Deceased's widow. Furthermore, they demonstrated that Dagoretti/Riruta/51 was legitimately subdivided in 2006, and a one-eighth (1/8) portion was sold to a third-party purchaser, the late Alice Nyambura Mungai. A Sale Agreement dated 13 July 2005 was executed, and Alice Nyambura Mungai took vacant possession, subsequently investing substantial capital to construct a permanent apartment block. Upon her death, her estate was subjected to formal testate succession, and the property lawfully devolved to her son, Daniel Mungai Kung'u. It is critical to note that these dispositions occurred while the initial (now revoked) grant of representation was in active, legal operation. 3. The Applicants, through their proposed distribution schedule, seek to pull these alienated properties back into the distribution matrix, essentially requesting the Court to nullify the third-party sales. The Applicants did not enjoin the affected third parties to these proceedings. To vitiate the proprietary rights acquired by Alice Nyambura Mungai (deceased) in 2006 or the purchaser of Karandini/68 in 2005, two decades later, would trigger catastrophic commercial uncertainty and undermine the indefeasibility of the title protected under section 26 of the Land Registration Act. 4. Accordingly, this Court determines that Dagoretti/Karandini/68 and the alienated one-eighth (1/8) portion of Dagoretti/Riruta/51 ceased to be part of the Deceased's free estate upon their lawful transfer to third-party purchasers. They are strictly excluded from the final distribution schedule. If the Applicants believe that the proceeds from these sales were misappropriated or unaccounted for by the Protestors in their capacity as former administrators, their remedy lies not in reclaiming the land *in rem*, but in demanding a strict accounting and tracing the proceeds against the former administrators under Section 94 of the Law of Succession Act, which penalizes the neglect or misapplication of estate assets by personal representatives. Customary Law versus Constitutional Equality 1. A deeply troubling aspect of the Protestors' defence is their heavy reliance on Kikuyu customary law. They assert that the Deceased shared out his land to his sons in strict alignment with traditional practices, under which ancestral land is historically bequeathed exclusively to male heirs. To bolster this position, the Protestors filed an Affidavit from one of the female siblings, Esther Wairimu Kamau, who purportedly renounced her share in deference to the Deceased's oral wishes and cultural norms, stating that her father intended only for the sons to inherit. 2. This argument strikes at the very heart of gender justice and constitutionalism in Kenya and must be decisively dismantled by this Court. The application of customary law in matters of intestate succession is heavily circumscribed by the Law of Succession Act and is expressly subordinate to the supreme law of the land: the Constitution of Kenya, 2010. 3. Firstly, under the statutory framework, Section 2(1) of the Law of Succession Act establishes that the Act has universal application to all cases of intestate succession for persons dying after 1 July 1981, effectively superseding and ousting customary law unless specifically exempted by the Minister under Sections 32 and 33 of the Act. The Deceased died in 2001, and Nairobi County is not an exempted area. Therefore, the distribution of this estate is governed exclusively by the provisions of Part V of the Law of Succession Act, not Kikuyu customary law. 4. More profoundly, the ideological premise that married or unmarried daughters cannot inherit ancestral land is fundamentally unconstitutional. Article 27 of the Constitution guarantees equality and freedom from discrimination on the basis of sex and marital status. Article 60 further reinforces the principle of equitable access to land and the elimination of gender discrimination in law, customs, and practices related to land and property in Kenya. 5. The Court of Appeal definitively settled this jurisprudential debate in the landmark case of ***Rono v Rono [2005] eKLR*.** The Court authoritatively held that the Constitution shields women from archaic customary succession laws that bar them from inheriting property. The Court ruled that male and female children must be treated equally before the law, noting that international instruments ratified by Kenya, such as the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), inform the interpretation of domestic laws. Any discriminatory customary rule that treats women as inferior to men, or predicates their inheritance rights on their marital status, is invalid, null, and void. 6. This progressive, rights-based jurisprudence was seamlessly applied in ***In Re******Estate of Lerionka Ole Ntutu (Deceased) [2008] eKLR*,** where the Court faced a strikingly similar argument from sons seeking to apply Maasai customary law to completely disinherit their sisters. Justice Rawal (as she then was) held that any tenet of customary law abrogating the right of daughters to inherit a father's estate is repugnant to justice and morality and cannot be applied under Section 3 of the Judicature Act. The Court noted unequivocally that the Law of Succession Act does not discriminate between male and female children, nor does it draw any distinction between married and unmarried daughters. 7. Therefore, the Protestors' reliance on Kikuyu customary law to monopolize the estate and disenfranchise their sisters is unequivocally rejected. The Applicants, as biological daughters of the Deceased, possess an absolute, indefeasible legal right to inherit equally alongside their brothers. 8. While the Court notes that some daughters, such as Esther Wairimu Kamau, have sworn Affidavits expressing a desire to abandon their claims out of respect for traditional wishes, the law allows a beneficiary the liberty to disclaim their inheritance. An individual cannot be forced to inherit against their will. However, such voluntary renunciation by one sibling cannot be weaponized by the Protestors to extinguish the statutory and constitutional rights of the Applicants who actively seek their rightful shares. The rights of the Applicants remain intact and protected by this Court. The Mechanics of Equitable Distribution and the Doctrine of Hotchpot 1. Having established that the unalienated properties form part of the estate and that the daughters are constitutionally and statutorily entitled to inherit, the Court must now design a distribution matrix that is lawful, equitable, and practical. 2. Section 38 of the Act governs intestacy where a deceased is survived by children but no spouse, dictating that the net intestate estate shall be equally divided among the surviving children. A mechanical, literal interpretation of this provision would suggest that every single parcel of land must be surveyed and physically subdivided into eleven equal portions. The Applicants pray for exactly this outcome. 1. The Protestors vehemently object to this proposal, highlighting the sheer physical and administrative impracticality of subdividing parcels as small as 0.12 Hectares or 0.15 Hectares into eleven microscopic pieces. They argue that such an exercise would violate physical planning laws, render the land economically useless, and necessitate the demolition of permanent homes built by the sons over the past 20 years. 2. The Court finds profound merit in the Protestors' objection regarding the mechanics of distribution. The Court's approach to distribution must be guided by two vital legal principles: the statutory doctrine of hotchpot and the jurisprudential mandate for equitable, least-disruptive distribution. 3. While the Court previously ruled that the *inter vivos* gifts of the Kangemi properties to the sons were legally imperfect, it is an undeniable factual reality that the Protestors and their brothers were placed in possession of these properties by the Deceased (or subsequently assumed exclusive control) and have erected permanent residential structures thereon over the last two decades. 4. Section 42 of the Act provides a vital statutory mechanism to balance this inequity. It states that where an intestate has, during his lifetime, paid, given, or settled any property for the benefit of a child, that property shall be taken into account in determining the share of the net intestate estate finally accruing to that child. This is the hotchpot doctrine, whose fundamental purpose is to ensure that beneficiaries who received substantial lifetime benefits from the deceased do not gain an unfair, double advantage over those who received nothing, thereby preserving the overarching principle of equality in intestacy. The sons have enjoyed exclusive use, possession, and development of parcels 1228, 1231, 1232, 1233, 1234, and 1235 for decades. Under Section 42, the value of these specific parcels must be charged against the sons' overall entitlement to the estate. 5. Further, the Court of Appeal in ***Jane Nyambura Ndungu v Beatrice Wangari Ndungu & 2 others [2021] eKLR*** provided critical, binding guidance on managing complex, multi-property family distributions. The Court astutely observed that succession matters cannot always be resolved with scientific precision because different properties possess different sizes, locational advantages, and economic values. The Court explicitly warned that Section 40, and by extension Section 38, is not a magic pill. While the Act mandates equal shares, the distribution must ultimately be equitable. 6. Crucially, the Court in ***Jane Nyambura Ndungu (supra)*** established that where beneficiaries have settled on specific properties and undertaken substantial developments, the Court should strive to preserve the *status quo* by endorsing a mode of distribution that is the least disruptive. Tearing down permanent homes built by the sons to achieve a strict mathematical subdivision of a 0.15-hectare plot would be an unconscionable exercise of judicial power, fostering perpetual family strife and economic destruction. 7. Consequently, this Court determines that the equal division mandated by Section 38 requires equality in overall value, not the physical, fractal subdivision of every individual title deed. 8. To achieve equity, prevent the destruction of property, and uphold the long-denied rights of the daughters, the Court adopts the following distribution framework: 9. The male beneficiaries who have been in exclusive occupation of Dagoretti/Kangemi/1228, 1231, 1232, 1233, 1234, and 1235 shall retain these specific parcels absolutely. By allocating these developed properties to them, their respective shares in the estate are deemed fully satisfied under the hotchpot principle of Section 42. 10. The Applicants, along with the other female beneficiaries who have not renounced their claims, have been entirely deprived of their inheritance for over two decades. They shall jointly and exclusively inherit the unalienated and unoccupied properties, namely: Dagoretti/Kangemi/1229, Dagoretti/Kangemi/1230, Dagoretti/Kangemi/1236, and the remaining un-subdivided seven-eighths (7/8) portion of Dagoretti/Riruta/51. **Disposition** 1. In the premises, the Summons for Confirmation of Grant dated 29 September 2020 is hereby allowed, subject to the equitable adjustments and third-party exclusions detailed above. The Affidavit of Protest is allowed only to the extent of protecting the third-party purchasers and preventing the physical subdivision of the developed parcels, but is otherwise dismissed in its attempt to apply customary law or validate the incomplete *inter vivos* gifts. 2. It is hereby ordered and directed as follows: 3. The properties known as Dagoretti/Karandini/68 and the alienated one-eighth (1/8) portion of Dagoretti/Riruta/51 (currently held by Daniel Mungai Kung'u) are explicitly excluded from the inventory of the Deceased’s free property, having been lawfully acquired by *bona fide* purchasers for value. 4. The Grant of Letters of Administration Intestate rectified on 14 July 2020 is hereby confirmed. 5. The free property of the Deceased shall be distributed equitably among the beneficiaries (or their respective estates) in the following manner: | **Asset / Property Reference** | **Beneficiaries / Allottees** | **Nature of Share** | | --- | --- | --- | | Dagoretti/Kangemi/1228 | Estate of Robert Githinji Wangewa (Deceased) | Absolutely | | Dagoretti/Kangemi/1231 | Patrick Kibe Wangewa | Absolutely | | Dagoretti/Kangemi/1232 | Peter Kamuyu Wangewa | Absolutely | | Dagoretti/Kangemi/1233 | Estate of Bethuel Njenga Wangewa (Deceased) | Absolutely | | Dagoretti/Kangemi/1234 | Estate of James Kamau Wangewa (Deceased) | Absolutely | | Dagoretti/Kangemi/1235 | Estate of Stephen Gachomo Wangewa (Deceased) | Absolutely | | Dagoretti/Kangemi/1229 | Sophia Wambui Kimani & Susan Wandia Gicheru | Jointly in equal shares | | Dagoretti/Kangemi/1230 | Sophia Wambui Kimani & Susan Wandia Gicheru | Jointly in equal shares | | Dagoretti/Kangemi/1236 | Sophia Wambui Kimani, Susan Wandia Gicheru, Nelly Wanjiku Thiongo, Lydia Waruguru Wangewa & Jacinta Wanjiku Wangewa | Jointly in equal shares | | Dagoretti/Riruta/51 *(Remaining 7/8 portion only)* | Sophia Wambui Kimani & Susan Wandia Gicheru | Jointly in equal shares | 1. The Court notes the voluntary renunciation of inheritance by Esther Wairimu Kamau; her share is deemed absorbed into the general distribution matrix benefitting her sisters as outlined above. 2. The Joint Administrators are hereby directed to execute the necessary transfer instruments to effect this distribution within ninety (90) days of this Ruling. Should any Administrator fail, refuse, or neglect to execute the transfers, the Deputy Registrar is authorized to sign the necessary mutation and transfer forms on their behalf. 3. Each party shall bear their own costs of these proceedings. **DATED AND DELIVERED AT NAIROBI THIS 30 DAY OF JULY 2026** **HELENE R. NAMISI** **JUDGE OF THE HIGH COURT** Delivered on virtual platform in the presence of: For the Applicants: Muasya h/b Musyoki For the Respondents/Protestors: N/A Court Assistant: Lucy Mwangi