https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/339

**** **REPUBLIC OF KENYA** **IN THE CHIEF MAGISTRATE’S COURT AT MURANG’A** **SUCCESSION CAUSE NO. E118 OF 2023** **IN THE MATTER OF THE ESTATE OF JASON MUNYUA KARANJA ALIAS MUNYUA KARANJA (DECEASED)** **JOHN KARANJA MUNYUA …..................................................... PETITIONER** **VERSUS** **JESEE NG’ANG’A MUNYUA ........................................................ PROTESTOR** **RULING** 1. The deceased herein, Jason Munyua Karanja *alias* Munyua Karanja (Deceased) died intestate on 23rd November 1994. He was survived by his widow Esther Wairimu Munyu and his children John Karanja Muyua, Philis Wambui Munyu, Gibson Gitau Munyua, Danson Mwiruri Munyu, Nelius Wanjiku Munju, Jesse Ng’ang’a Munyua, Joyce Muthoni Munyua and Alice Mugure Munyua. The deceased’s assets comprise of land parcel Loc. 5 Githunguri/244 and land parcel no. Makuyu/Blk II/516 (Mihang’o). 2. John Karanja Munyua, the administrator of the deceased’s estate sought to have the deceased’s assets distributed as follows in the summons for confirmation of grant dated 14th May 2025; 1. Loc. 5 Githunguri/244 in equal shares among; 1. John Karanja Munyua 2. Philis Wambui Munyu and 3. Alice Mugure Munyua 2. Land parcel No. Makuyu/Blk. II (MIHANGO)/516 in equal shares between; 1. Jesse Ng’ang’a Munyua; and 2. Joyce Muthoni Munyua. 3. While all other beneficiaries agreed to the mode proposed by the administrator, Jesse Ng’ang’a Munyua swore an affidavit of protest on 19th January 2026 seeking to have the deceased’s estate distributed as follows; 1. Loc. 5 Githunguri/244 in equal shares among; 1. John Karanja Munyua 2. Jesse Ng’ang’a Munyua and 3. Alice Mugure Munyua 2. Land parcel no. Makuyu/Blk. II (MIHANG’O)/516 in equal shares between 1. Phillis Wambui Munyu; and 2. Joyce Muthoni Munyua. 4. Essentially, he sought to interchange his proposed share in Land parcel no. Makuyu/Blk. II (MIHANG’O)/516 with Phillis’s portion in Loc. 5 Githunguri/244. In support of his proposal Jesse asserted that he had extensively developed the share allotted to him by his mother in the parcel of land in Githunguri by constructing two permanent houses and planting trees while Phillis had made no developments to the parcel of land in Githunguri. He averred that the mode of distribution proposed by the administrator would occasion him losses and would result in unjust enrichment to others. 5. For her part, Phillis swore an affidavit in response to the protest on 3rd March 2026 asserting her support of the mode of distribution proposed by the administrator. She refuted Jesse’s claim that she had not developed the parcel of land in Githunguri. She claimed that she had constructed a school and three permanent houses in Githunguri when the land was reallocated to her by her mother. Similar averments were made by the administrator John Karanja and the deceased’s brothers Joel Kinyanjui and Geoffrey Ndung’u. **THE EVIDENCE** 1. When the matter came up for hearing, Jesse reiterated the averments made in the protest. He added that he lived on the parcel of land in Githunguri with his children who also studied there. He claimed that his sister Phillis had planted trees in the parcel of land in Makuyu, but later on, when the succession proceedings commenced, he was given the parcel of land in Makuyu. 2. During cross examination, Jesse admitted that he had asked their mother to swap his share of the land in Githunguri with Phillis’ portion in Makuyu. He also admitted that Phillis had built a nursery and a house for her grand child on the parcel of land in Githunguri in December 2025. He however stated that although he had agreed to the exchange of the portion of land with Phillis, she was unable to build him a house similar to what he had built before the exchange, so he had rejected the exchange of their respective portions. 3. John Karanja (DW1) testified that Jesse and Phyllis had agreed to swap their parcels of land hence the mode of distribution. He informed the court that most of the land in Githunguri had coffee, and the portion cultivated by Jesse was only 10 by 10 meters. He stated that Phillis had built a school on one portion of the land and all three including himself, Phyllis and Jesse had constructions on the same parcel of land. 4. Joel Kinyanjui (DW2) told the court that the family had discussed and settled the issue of distribution sometime in 2010. He told the court that both Phillis and Jesse lived in Githunguri. He also told the court that it would be unjust to move Phillis from Githunguri as she had taken up the responsibility of taking care of their elderly mother and was running a school on the parcel of land in Githunguri. 5. Phillis (DW3) told the court that she lived in Githunguri. She produced photographs to show that she had constructed a house and was running a school on the parcel of land in Githunguri. She also admitted that Jesse had a house on the same parcel of land in Githunguri where he lived with his family. She told the court that Jesse had asked her to build him a house on the other parcel of land but she had declined. She had asked him to speak to her son about the issue but Jesse had too many demands so they were unable to agree. **ISSUES, ANALYSIS AND DETERMINATION** 1. This court has considered the averments made by the parties as well as their testimonies before this court. The sole issue for determination is the manner in which the deceased’s estate ought to be distributed. **Section 35** of the **Law of Succession Act** (herein “the Act”) provides the mode of distribution for the assets of the deceased, where the deceased is survived by one surviving spouse and children as in the present case. It states; ***35. Where intestate has left one surviving spouse and child or children*** *(1) Subject to the provisions of section 40, where an intestate has left one surviving spouse and a child or children, the surviving spouse shall be entitled to-* *(a) the personal and household effects of the deceased absolutely; and* *(b) a life interest in the whole residue of the net intestate estate:* *Provided that, if the surviving spouse is a widow, that interest shall determine upon her re-marriage to any person.* *(2) A surviving spouse shall, during the continuation of the life interest provided by subsection (1), have a power of appointment of all or any part of the capital of the net intestate estate by way of gift taking immediate effect among the surviving child or children, but that power shall not be exercised by will nor in such manner as to take effect at any future date.* *(3) Where any child considers that the power of appointment under subsection (2) has been unreasonably exercised or withheld, he or, if a minor, his representative may apply to the court for the appointment of his share, with or without variation of any appointment already made.* 1. In a nutshell, Section 35 above provides that where a person dies intestate leaving one surviving spouse and children, the surviving spouse inherits the deceased's personal and household effects absolutely and enjoys a life interest in the remainder of the estate. During the subsistence of that life interest, the spouse may distribute all or part of the capital of the estate among the surviving children by way of an immediate gift. If a child considers that this power has been exercised unreasonably or unfairly withheld, the child may apply to the court for an appropriate share of the estate. 2. Although the deceased's widow was entitled to a life interest in the deceased's assets, the evidence before the court demonstrates that she exercised her power to appoint some of the deceased’s children to settle on the deceased’s estate. Save for the protestor, the beneficiaries are largely in agreement with the mode of distribution proposed by the administrator. The only outstanding issue is whether the protestor, Jesse, should inherit an equal share of the parcel of land in Githunguri in place of Phillis as proposed by the administrator. 3. In his protest, Jesse claimed that Phillis had not made any developments to the parcel of land in Githunguri. His claim was however overwhelmingly challenged by Phillis, the administrator and the deceased’s brother, DW3, who testified that Phillis lived in Githunguri where she also ran a nursery school. They also testified that among her siblings, she was the one that had taken up the responsibility of looking after their elderly mother who also lived in Githunguri. Jesse also admitted that Phillis ran a school on the parcel of land in Githunguri during cross-examination. It is therefore clear that contrary to his assertion that she had made no developments to the land, Phillis lives in Githunguri and has made a substantial investments to the property where she runs a nursery school. 4. On the other hand, the evidence also demonstrates that Jesse has made substantial developments to the parcel of land in Githunguri. His evidence that he had built houses on the land was not challenged. The administrator, John Karanja told the court that he, Phillis and Jesse all had buildings on the same parcel of land. DW3 also testified that Jesse lives in Githunguri. Phillis similarly conceded that Jesse had a house in Githunguri. She told the court that he had asked her to build him a house in Makuyu as compensation for the house in Githunguri, but she did not accept his proposal. 5. The decision of the court in[***In re Estate of David Munuve Nthiwa (Deceased) (Succession Cause 12 of 2018) [2026] KEHC 6364 (KLR) (7 May 2026) (Ruling)***](https://kenyalaw.org/akn/ke/judgment/kehc/2026/6364/eng%402026-05-07) provides useful guidance in the determination of this case. The court in that matter held; *This court acknowledges that distribution need not always be mathematically equal where special circumstances exist ... At the same time, the court must remain alive to practical realities including long standing occupation and substantial developments on specific parcels. It would be both unjust and disruptive to remove beneficiaries who have settled on specific parcels for many years.* 1. The evidence before this court proves that the administrator John Karanja, the protestor Jesse and Phillis are in occupation of land parcel Loc. 5 Githunguri/244. Further, Phillis told the court that there are no permanent developments on the parcel of land in Makuyu. It was in fact her testimony that the beneficiaries’ portions in the land in Makuyu were bigger as compared to the portions of land in Githunguri. 2. The witnesses did not explain why Jesse and Phillis can no longer reside on the Githunguri parcel as they have done in the past. Further, no evidence was adduced to show that Alice Mugure has made any developments or comparable investments on that parcel. In distributing the estate, the court has taken into account the fact that both Jesse and Phillis have made substantial investments on the Githunguri property, whereas no similar investment by Alice Mugure was established. The court has also considered the potential injustice that would result from requiring either Jesse or Phillis to vacate the land, as well as the practical difficulties and attendant complexities of compensating either of them for their respective developments. 3. Accordingly, the deceased's estate shall be distributed as follows: 1. **Loc. 5 Githunguri/244 in equal shares among;** 1. **John Karanja Munyua;** 2. **Jesse Ng’ang’a Munyua;** 3. **Philis Wambui Munyu and** 2. **Land parcel no. Makuyu/Blk. II (MIHANG’O)/516 in equal shares between;** 1. **Alice Mugure Munyua; and** 2. **Joyce Muthoni Munyua.** 4. This being a family matter the parties shall each bear their own costs. **DATED, SIGNED AND DELIVERED AT MURANG’A THIS 8TH DAY OF JULY 2026.** **HON. GRACE WAITHĨRA** **SENIOR RESIDENT MAGISTRATE** **RULING READ IN OPEN COURT IN THE PRESENCE OF;** **C/A JEREMIAH** **PROTESTOR: PRESENT** **ESTHER WAIRIMU: PRESENT** **JOHN KARANJA: PRESENT** **PHYLIS WAMBUI: PRESENT** **GIBSON GITAU: PRESENT** **DANSON MWIRURI: ABSENT** **NELIUS WANJIKU: PRESENT** **JOYCE MUTHONI: PRESENT** **ALICE MUGURE: PRESENT**