https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11774

**** **REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT NAKURU** **SUCCESSION CAUSE NUMBER 242 OF 2014** **IN THE MATTER OF THE ESTATE OF THE STEPHEN WAWERU KIMUI alias STEPHEN WAWERU J. KIMUI (DECEASED)** **MARY NYAMBURA WAWERU …… ADMINISTRATOR/APPLICANT** **VERSUS** **PETER KIMUI WAWERU ……………………………. 1ST RESPONDENT** **HELLEN WACHIRA ……………..………………… 2ND RESPONDENT** **JUDGMENT** 1. Grant of letters of Administration herein was on 17th June 2014 granted to Naomi Wambui Waweru, Peter Kimui Waweru and Hellen Wachera Waweru. The Grant was confirmed on 17th July 2015 *vide* Summons for Confirmation dated 10th February 2015, and the deceased's Estate wholly devolved to Naomi Wambui Waweru, his widow. The record shows that the widow passed away before the Estate was transferred in her name. By Summons dated 19/1/2021, she was substituted as Administratix by her daughter called Mary Nyambura Waweru who subsequently brought an application dated 11/3/2024 for confirmation of the Grant. The Applicant is therefore one of the Administrators of the Estate now. 2. The other two remaining Administrators of the Estate (Peter Kimui Waweru and Hellen Wachera Waweru) disagreed with the mode of distribution of the Estate proposed by the Applicant, filing an affidavit of protest purportedly sworn on 8/4/2020. On 13/11/2024 the court directed that the protest be disposed of by oral evidence and this Judgement is on that Protest. For the purpose of this Judgement, the Administrators (Mary Nyambura Waweru, Peter Kimui Waweru and Hellen Wachera) shall be referred to as "Mary", "Peter" and "Hellen" respectively. 3. The Protestors rely on the affidavit dated 8/4/2024 sworn by Peter on his behalf as well as on behalf of Hellen. He contends that they are opposed to Mary's proposal on distribution of the Estate. According to the Protestors, majority of the beneficiaries at a meeting convened on 20/11/2020 agreed on sharing of the Estate as per formula filed on 5/2/2024. Mary was the lone objector to the proposals. Under the formula, married daughters of the deceased who are named as Mary Nyambura, Alice Wanjiru, Mercy Njeri, Leah Wangari and Esther Wamaitha would each be granted 2 (two) acres of land and a plot measuring (50x100). 4. The two sons and unmarried daughters of the deceased were to share the rest of the Estate equally as follows according to the Protestors: **Nyandarua/Mirangine Township 58** - Hellen Wachera **Block 16/Ndunyu Choge 1975** - Peter Kimui Waweru **Nakuru Municipality Block 3/291** - Peter Kimui * + Jane Wanjiku + Mary Nyambura (Equally) + Alice Wanjiru + Agnes Wugure + Joseph Nganga + Esther Wamaitha **Nyandarua/Sabugo/462 -** Peter Kimui, Hellen Wachera 1. Rather inconsistently, the protestors also seemed to agree that the properties be sold off and proceeds shared equally. 2. There are other properties described as **Nyandarua Sabugo Block 3/9215** and **Block 3/240** in respect of which the protestors do not propose the mode of sharing in their purported meeting of 20/11/2020. Other properties described as Nya/Sabugo 39, Nya/Sabugo 1813, Sabugo 1812, Nya/Sabugo 2230 and Nya/Sabugo 2229 are said to have been "combined" into one Title described as **Nyandarua Sabugo Block 3/9215** *supra*. It is not shown how the same is proposed to be shared out. 3. The Protestors object to Mary's suggestions as to distribution of the Estate as per paragraph 11(a), (d), (e) to (g) of her affidavit supporting her Summons for Confirmation of Grant dated 11/3/2020. The court is told that the properties known as **Nyandarua Township/58** and **Block 16/Ndunyu Chege /1975** were given by the deceased in his lifetime to Hellen and Peter respectively. 4. In their oral evidence in Court, the Protestors suggest that married daughters of the deceased get 2 (two) acres each out of **Nyandarua Sabugo/9215** while the deceased's sons and unmarried daughters get 3 (three) acres each from that parcel of land. The Protestors think that married daughters are not entitled to equal shares of the Estate as their other siblings. 5. On her part, Mary adopted her affidavit she swore on 11/3/2024 in support of the Summons for confirmation of Grant as her evidence herein. She proposes distribution of the Estate as follows; * + 1. **Nakuru Municipality block 3/291:** **Ground floor - Mary Nyambura Waweru, Esther Wamaitha Waweru, Agnes Mugure Waweru.** **1st Floor - Peter Kimui Waweru, Joseph Nganga Waweru's children, Naomi Wambui and Stephen Waweru.** **2nd Floor - Mary Nyambura Waweru and Agnes Mugure Waweru.** **b) Formerly Nyandarua/Sabugo/1812, 1813, 2229, 2230, 2039 now consolidated to read Nyandarua/Sabugo/9215 measuring 11.993 Hectares - to be shared equally amongst all beneficiaries.** **c) Nyandarua/Sabugo/240 measuring 12.35 acres - to be divided equally amongst all beneficiaries.** **d) Nyandarua/Sabugo/4621 Nyandudo 3 acres - to be shared equally amongst all beneficiaries.** **e) Lock 16/Ndunyu Chege 1975 measuring 0.94 Hectares - to be divided equally amongst all beneficiaries.** **f) Nyandarua/Mirangini Township/58 - Hellen Wachera Waweru (whole share).** **g) The money in rent payable by Kenya Telecommunications Company be shared by all beneficiaries.** **h) Equity Bank account No 0130197355900 funds to be shared equally amongst all the beneficiaries.** 1. Mary wants the court to order subdivision of the properties for equitable distribution. According to her, **Nakuru Municipality Block 3/291** had been shared out by their deceased father and each beneficiary is collecting rent from sections of the property allocated to them. She favours retention of the existing arrangement. Mary adds that the ground floor of the property was built by their parents. 2. Mary further testifies that she and some of her siblings are in occupation of **Nyandarua Sabugo Block 3/9215**. She accuses Peter of unlawfully selling off part of this property in concert with Hellen. She also complains that she and other married daughters of the deceased have unfairly been allocated marshy parts of the property. 3. While conceding that the deceased had bequeathed **Nyandarua/Mirangine Township 58** to Hellen, Mary denies that Peter was given **Block 16/Ndunyu Chege/ 1975**. According to her, rent on the property given to Hellen was, however, to be shared by all beneficiaries. 4. The parties filed written submissions. Peter and Hellen submit that all the other beneficiaries except Mary agree with the proposals reached in the family meeting of 20/11/2020. Relying on **Re Estate of Mary Njoki Zakaria (deceased) (2020) KLR 9942,** their Advocates submit *inter alia* that consent of beneficiaries of an Estate is generally accepted by the court unless fraud or coercion is proven. 5. The Applicant’s Advocates rely on **section 38 of Law of Succession Act** which provides that where a deceased person dies intestate leaving surviving children but no spouse, the Estate shall devolve to the surviving child or be divided among the surviving children, as the case may be, (see **Re Estate of Grace Nguli Michoki (deceased)** among other judicial determinations cited in the submissions). Counsel contend that the **Law of Succession Act** does not discriminate against children of a deceased person based on gender. All the properties of the deceased should therefore be divided among his surviving children, according to Counsel. 6. It is common ground that the deceased herein died intestate. It is also apparent that only Mary is opposed to the Protestors' proposal of distribution of the deceased's property according to the minutes of the meeting of 20/11/2020. 7. I agree with Mary's evidence and submissions that married daughters of a deceased person have equal rights of inheritance as their unmarried siblings regardless of gender. This is indeed the constitutional and legal position, unless married daughters renounce their claims. 8. There is no evidence that Peter sold off any part of the Estate contrary to Mary’s claim. There is further no evidence that **Block 16/Ndunyu Choge/1975** exclusively claimed by Peter was gifted to him by the deceased.The parties, however, agree that Hellen was gifted **Nyandarua/Mirangine Township 58** by the deceased. 9. No evidence is equally placed before the court showing any funds held with Equity Bank. 10. As there is no unanimity among the beneficiaries as to how to share the Estate, the court shall distribute it equally and equitably as follows; 11. **Nakuru Municipality Block 3/291 - Equal shares** 12. **Nyandarua/Sabugo/9215 - Equal shares.** 13. **Block 16/Ndunyu Choge/1975- Equal shares among all beneficiaries except Hellen Wachera Waweru.** 14. **Nyandarua/Sabugo/4621- Equal shares.** 15. **Nyandarua/Sabugo 3/240 - Equal shares.** 16. **Nyandarua/Mirangine Township/58 - Hellen Wachera Waweru.** 17. It is further directed as follows; * + 1. **A registered valuer to be agreed by the parties shall conduct valuation of Nakuru Municipality Block 3/291 within 90 days. The beneficiaries shall thereafter have liberty to buy off each other's shares or the property be sold off and proceeds shared equally.** 2. **A Land Surveyor shall subdivide the rest of the properties among the beneficiaries equally while ensuring that a beneficiary takes a portion they have built on.** 3. **Each party has the liberty to apply.** 4. **As this is a family matter, the parties shall bear their own costs of the proceedings.** **19.** Judgment accordingly. **J. M. NANG’EA, JUDGE.** **Judgment, dated, signed and delivered virtually this 20th day of July, 2026.** **In the presence of:** Ms Njoroge Advocate for the 1st Administrator. Mr. Odhiambo Advocate for the Protestors. Court Assistant (Jeniffer). **J. M. NANG’EA, JUDGE.**