https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/486

 REPUBLIC OF KENYA IN THE MAGISTRATE COURT OF KENYA AT MURANGA COUNTY COURT NAME: MURANGA MAGISTRATE COURT CASE NUMBER: MCSUCC/262/2018 IN THE ESTATE OF HARRISON IRUNGU MWANGI ALIAS E.IRUNGU MWANGI RULING 1. The deceased, Harrison Irungu Mwangi alias Harisson E. Irungu Mwangi, died on 12th February 2015. He was survived by his widow Lucy Wamuyu Mwaniki and his children Stella Wanjiru Irungu, Betty Wanjiku Irungu, Isaac Ichakua Irungu and Samuel Momo Irungu. It is contended that at the time of his demise, the deceased’s estate comprised of land parcel numbers Loc. 15/Gathukiini/2347 and Makuyu/Kimorori/Block IV/1044, plot numbers 8 Kiambugi Market and 821 with Umagara Wiyonere Company limited as well as a pension pay out of Kshs. 1,045,000/=. 2. On 16th June 2022, Lucy Wamuyu Mwaniki and Stella Wanjiru Irungu were appointed co-administrators in the estate of the deceased by consent. Stella Wanjiru Irungu and Betty Wanjiku Irungu are the beneficiaries of the first house whereas Lucy Wamuyu Mwaniki, Isaac Ichakua Irungu and Samuel Momo Irungu are the deceased’s beneficiaries of the second house. 3. The subject of the dispute between the parties is the mode of distribution to be adopted for the estate. # THE WIDOW’S CASE 1. The deceased’s widow, Lucy Wamuyu Mwaniki, proposed the following mode of distribution in Summons for Confirmation dated 16th December 2021; 1. Loc 15/Gathukiini/2347 - Lucy Wamuyu Mwaniki absolutely; 2. Makuyu/Kimorori Block IV/1044 - Lucy Wamuyu Mwaniki absolutely; 3. Plot No. 8 Kiambugi market- Stella Wanjiru Irungu and Betty Wanjiku Irungu in equal shares; 4. Pension payout at treasury of Kshs. 1,045,000/= - Lucy Wamuyu, Stella Wanjiru Irungu, Betty Wanjiku, Isaac Ichakua Irungu (minor) and Samuel Momo equally with Lucy Wamuyu Mwaniki holding the minor’s share in trust. 2. In her witness statement, Lucy Wamuyu explained that her proposed mode of distribution was based on the fact that land parcels 2347 and 1044 were owned jointly by her and the deceased, therefore the properties ought to devolve solely to her. She added in her testimony before this court that the plot in Kasarani, that is 821 with Umagara Wiyonere Company limited, was registered in her name. She had transferred the plot to her name when the deceased died on his instructions. She also told the court that she lived in Kasarani as well as on parcel number 1044. She further informed the court that she had developed the plot in Kasarani and the land in Kimorori by completing constructions on those parcels of land. 3. Although the deceased’s widow initially insisted that the plot in Kasarani had never had tenants since 2015, she subsequently conceded that the plot had 11 rooms from which she would get Kshs. 5,000/= when fully occupied. She also divulged that the parcel of land in Kimorori, Makuyu had a two-bed room house where she lived with her children. The parcel of land in Gathukiini had one grave and was jointly owned, while the plot in Kiambugi had four tenants from whom she had been collecting a rent of Kshs. 2,000/= per month. She also admitted that although the deceased had a written will, she had not produced it in court as part of her documents. # THE PROTESTORS’ CASE 1. Stella Wanjiru swore an affidavit on 23rd March 2022 contesting the mode of distribution proposed by Lucy Wamuyu. Her proposal was that the deceased’s assets including land parcel numbers Loc. 15/Gathukiini/2347 and Makuyu/Kimorori/Block IV/1044, plot numbers 8 Kiambugi Market and 821 with Umagara Wiyonere Company limited and a pension pay out of Kshs. 1,045,000/= be distributed equally between the deceased’s two houses. She averred that her co-administrator had deliberately left out plot no. 821 with Umagara Wiyonere Company limited yet the same was part of the deceased’s estate. 1. In support of the protest, Betty Wanjiku asserted that the deceased had died intestate. She questioned the manner in which the initial grant issued to the widow and the protestors’ grandmother, Miriam Wanjiku, had been revoked and the widow’s brother, Bernard Maingi Mwaniki inserted in place of their grandmother as an administrator. This was not withstanding the fact that the protestors were adults capable of taking care of their own interests in the estate. Betty Wanjiku also claimed that the deceased’s widow had reserved for herself and her children 3 prime properties and had left one low value property for her and her sister. 2. Betty urged the court to bequeath land parcels 2347 and 1044 to the deceased’s widow as she claimed that they were jointly owned. She also urged the court to have the pension distributed equally amongst all the deceased’s beneficiaries. She admitted that the petitioner lived in the parcel of land in Makuyu, Kimorori with her children. Regarding the plot in Kasarani, Betty Wanjiku stated the protestor’s interest in it. According to her, the property fetched an income of about Kshs. 80,000/= to Kshs. 90,000/=. She pointed out that there was no evidence of transfer of the plot before the deceased’s death. She claimed that Lucy Wamuyu had been collecting rent from the properties on the guise that she was educating her sons while she and her sister suffered. # ISSUES FOR DETERMINATION 1. From the depositions and testimonies of the parties herein, the issues arising for determination are; 1. Whether the deceased died testate or intestate; 2. What properties constitute the deceased’s estate; and 3. What mode of distribution ought to be adopted for the estate. # ANALYSIS AND DETERMINATION 1. **Whether the deceased died testate or intestate;** 2. During the hearing of the matter, the deceased’s widow claimed that the deceased had left a written will distributing his property. If that were the case, she ought to have filed a Petition for Grant with Will Annexed after which the court would have issued a grant under **Section 53 (a)** of the **Law of** **Succession Act.** She however sought letters of administration intestate and has never produced a copy of the alleged will. In the absence of proof of a valid will, this court finds that the deceased died intestate. # What properties constitute the deceased’s estate; 1. According to the protestors, the deceased’s estate comprises of land parcel numbers Loc. 15/Gathukiini/2347 and Makuyu/Kimorori/Block IV/1044, plot numbers 8 Kiambugi Market and 821 with Umagara Wiyonere Company limited and a pension pay out of Kshs. 1,045,000/=. The deceased’s widow, Lucy Wamuyu, agrees that the deceased’s assets are as enumerated by the protestor but she asserts that land parcel 2347 and land parcel 1044 were registered in her name and the deceased’s name jointly. She also claims that plot 821, is not part of the deceased’s estate. 2. In support of the argument that the deceased owned land parcels 2347 and 1044 jointly with the deceased, the widow’s learned counsel referred this court to the repealed Registered Land Act. He argued that in this case, the aforementioned parcels of land were jointly owned by the deceased and his widow, as the title documents were silent on their respective shares. It was counsel’s submissions that the deceased interest automatically passes to the petitioner by virtue of the principle of survivorship. 3. The copies of the searches on record show that land parcels 2347 and 1044 were owned by the deceased and his widow. The title documents are indeed silent on the respective shares of the deceased and the widow. However, on the law regarding tenancy in common and joint tenancy, **Section 91 (2)** of the **Land Registration Act** is clear that where the respective share of the proprietors is not indicated upon transfer, there is a presumption that the proprietors hold the interest as tenants in common in equal shares. Elucidating this provision, Mutungi J (as he then was) held as follows in the case of [***Karuga***](https://kenyalaw.org/akn/ke/judgment/keelc/2024/5562/eng%402024-07-31)[***v National Irrigation Authority & 4 others (Environment and Land***](https://kenyalaw.org/akn/ke/judgment/keelc/2024/5562/eng%402024-07-31)[***Judicial Review Case E003 of 2023) [2024] KEELC 5562 (KLR) (31 July***](https://kenyalaw.org/akn/ke/judgment/keelc/2024/5562/eng%402024-07-31)[***2024) (Judgment)***](https://kenyalaw.org/akn/ke/judgment/keelc/2024/5562/eng%402024-07-31) *21 ... Section 91(1) of the Land Registration Act, 2012 defines co- tenancies as follows: -* *91(1) In this Act, co-tenancy means the ownership of land by two or more persons in undivided shares and includes joint tenancy or tenancy in common.* *Subsection (2) of Section 91 of the Act further provides that where the instrument of transfer to two or more persons is silent on the nature of the rights transferred there is a presumption that the transferees hold the interest as tenants in common in equal shares. Section 91(2) of the Land Registration Act, provides as follows: -* *91(2) Except as otherwise provided in any written law, where the instrument of transfer of an interest of land to two or more persons does not specify the nature of their rights there shall be a presumption that they hold the interest as tenants in common in equal shares.* *24. In the present matter the instrument of surrender by Karuga Mburia (deceased) to his wife and daughter was not express on the nature of the interest bestowed on each one of them. In the premises there is therefore a presumption that the licence in regard to Riceholding 2251 was held by the Applicant in common and in equal shares.* 1. Guided by the foregoing authority and provisions of the law, this court similarly finds that land parcels 2347 and 1044 were held by the deceased and his widow as tenants in common as there was no indication on the title documents that those parcels of land were held jointly. Consequently, the deceased owned half a share of land parcels 2347 and 1044 which were separate and distinct from his widow’s interests in those parcels of land. The argument that the deceased’s interest in the land automatically passes to the petitioner by virtue of the principle of survivorship is therefore without basis. The proper position is found in **Section 91 (5)** of **the Land Registration Act** which provides; *“91 (5) If any land, lease or charge is owned in common, each tenant shall be entitled to an undivided share in the whole and on the death of a tenant, the deceased’s share shall be treated as part of their estate.”* 1. The deceased’s half share in land parcels 2347 and 1044 therefore forms part of his estate. 2. Turning to the ownership of plot number 821 with Umagara Wiyonere Company limited, the deceased’s widow, Lucy, claims that the plot is not part of the deceased’s estate whereas the protestors argue that the plot forms part of the estate. This court has seen the plot certificate issued to the deceased with respect to the plot number 821 on 14th September 1991. During cross examination, the deceased’s widow told the court that the plot was currently in her name. She claimed that she had transferred the plot to her name when the deceased died on his instructions. If she had in fact transferred the asset to her name after the deceased’s death, that would amount to intermeddling with the estate of the deceased which is prohibited under **Section 45** of the **Law of Succession Act**. Under **Section 45(2)(b)** of the Act, a person who intermeddles with any free property of the deceased is answerable to the rightful executor or administrator, to the extent of the assets with which he has intermeddled after deducting any payments made in the due course of administration. 1. Further, this court notes that Lucy did not produce any document in support of the claim that she currently owns Plot 821. She claimed that she and the deceased bought the land together but that was evidently not the case, given her testimony that she got married to the deceased in 2002. By the time the deceased and his widow Lucy got married, the deceased had owned the plot for close to a decade. 2. In light of the foregoing analysis, this court finds that the deceased’s estate comprises of; 1. Half a share in Land parcel Loc. 15/Gathukiini/2347; 2. Half a share in Makuyu/Kimorori/Block IV/1044, 3. Plot number 8 Kiambugi Market; 4. Plot 821 with Umagara Wiyonere Company limited; and 5. Pension pay out of Kshs. 1,045,000/=. # What mode of distribution ought to be adopted for the estate; 1. The mode of distribution envisioned in the Law of Succession Act is equal division of property. In this case, it is common ground that the deceased had two houses. **Section 40** of the **Law of Succession Act** is therefore the applicable provision for distribution of the deceased’s estate. The provision stipulates that, where a deceased had married more than once, his estate would be apportioned among the houses based on the number of children in each house. Each surviving wife is counted as an additional unit, after which each house's share is distributed in accordance with sections 35 to 38 of the Act. 1. The deceased’s widow has proposed that land parcels 2347 and 1044 devolve to her solely, plot no. 8 be divided equally between the two protestors and the pension pay out between all beneficiaries. That mode of distribution is outrightly unequal. This court also notes that Lucy has been collecting rent from the deceased’s assets to the exclusion of the protestors. Although she was adamant during cross-examination that the plots had no tenants, she conceded when questioned about it by the court that the plot in Kasarani had 11 rooms with 10 tenants and fetched an income of Kshs. 5,000/= when fully occupied. She also conceded that Plot no. 8 in Kiambugi had 4 tenants who paid a rent of Kshs. 2,000/= each. 1. On 16th September 2025, Lucy was directed to render accounts within 21 days. She filed an affidavit on 9th October 2025 attaching her Mpesa statements for the period between 1st January 2025 and 7th October 2025 which showed that she had received a total of Kshs. 85,000/= from three people. And on 2nd December 2025 filed a supplementary affidavit attaching her Mpesa statements for the period between 1st January 2023 and 31 st December 2024 which showed that she had received a total of Kshs. 172,100/= from same three people. 2. The purported statements of account do not identify the three individuals or explain the purpose of the payments reflected therein. Moreover, the deceased died in April 2016, nearly a decade ago, yet the statements cover only a limited period. Although Lucy admitted that the property had 14 tenants, she produced statements for only three individuals, who are presumed to be among those tenants. Her accounting is therefore plainly incomplete. 3. It is also worth noting that Lucy was, to put it mildly, not candid when she testified before this court. Initially, she denied collecting income from the deceased’s property. It was only after sustained cross examination and questions from the court that she admitted that she had been collecting rent from the deceased’s estate. The inevitable conclusion to be drawn from this, is that Lucy was not a credible witness. Given her failure to make candid disclosure, this court draws an adverse inference that the statements she filed represent only a small fraction of what she has collected in the decade following the deceased’s demise. While she may have used part of the rental income to maintain her children following the deceased’s death, all the deceased’s children were entitled to benefit from the estate without discrimination on the basis of gender or any other basis. In any event, such circumstances do not justify giving false evidence under oath. 4. In distributing the deceased’s estate, this court has considered the foregoing finding that Lucy has been collecting income from the deceased’s estate without properly accounting for it. It has also taken into account the measurements of the properties. The copies of search show that parcel no. 2347 measures 0.40 Ha whereas parcel no. 1044 measures 0.063 Ha. This court has also taken into consideration the protestor’s admission that Lucy and her children live on parcel 1044. The court further observes that the protestors do not dispute Lucy’s mode of distribution with respect to land parcel 2347 and 1044. Additionally, the court has seen proof that Isaac Ichakua Irungu is now an adult. 5. The court is further guided by 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) where the court 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.* *…* *While the Protestors have raised legitimate concerns regarding intermeddling and certain inaccuracies in the proposed mode of distribution, their overarching approach to distribution particularly the suggestion that sons should receive larger shares than daughters, is not supported by law. Their reliance on the deceased’s alleged lifetime distribution while relevant, cannot override clear statutory and constitutional provisions governing intestate succession. I therefore find that the protest partially succeeds only to the extent that the court must take into account prior benefits received by certain beneficiaries and address instances of intermeddling.* 1. Accordingly, this court hereby distributes the deceased's estate as follows: 1. **Half a share in Land parcel Loc. 15/Gathukiini/2347** shall be distributed equally among; # Lucy Wamuyu Mwaniki; * + 1. **Isaac Ichakua Irungu; and** 2. **Samuel Momo Irungu**, whose share shall be held in trust by Lucy Wamuyu Mwaniki until he attains the age of majority. # Half a share in Makuyu/Kimorori/Block IV/1044 shall be distributed equally among; # Lucy Wamuyu Mwaniki; * + 1. **Isaac Ichakua Irungu; and** 2. **Samuel Momo Irungu**, whose share shall be held in trust by Lucy Wamuyu Mwaniki until he attains the age of majority. * 1. **Plot number 8 Kiambugi Market** shall be distributed equally between; # Stella Wanjiru Irungu; and * + 1. **Betty Wanjiku Irungu**. 1. **Plot 821 with Umagara Wiyonere Company limited** shall be distributed equally among; # Lucy Wamuyu Mwaniki; * + 1. **Stella Wanjiru Irungu; and** 2. **Betty Wanjiku Irungu.** 3. **Isaac Ichakua Irungu; and** 4. **Samuel Momo Irungu** , whose share shall be held in trust by Lucy Wamuyu Mwaniki until he attains the age of majority. * 1. **Pension** pay out of Kshs. 1,045,000/= shall be distributed equally among; # Stella Wanjiru Irungu; * + 1. **Betty Wanjiku Irungu;** 2. **Isaac Ichakua Irungu; and** 3. **Samuel Momo Irungu**, whose share shall be held in trust by Lucy Wamuyu Mwaniki until he attains the age of majority. 1. Being a family matter, the parties shall bear their own costs. # DATED, SIGNED AND DELIVERED AT MURANG’A THIS 22ND DAY OF JULY 2026. **HON. GRACE WAITHĨRA SENIOR RESIDENT MAGISTRATE** **RULING READ ON THE VIRTUAL PLATFORM IN THE PRESENCE OF; C/A JEREMIAH** **MR. NJOROGE FOR LUCY WAMUYU MWANIKI MR. NABENDE FOR THE PROTESTORS** SIGNED BY/FOR: **★ TH E JUDICIAR Y O F KENY A ★** **HON. GRACE WAITHIRA** Muranga Magistrate Court Magistrate Court Date: 2026-07-22 12:59:13