https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12591

**REPUBLIC OF KENYA** **IN THE HIGH COURT AT NYERI** **SUCCESSION CAUSE NO. 900 of 2014** **IN THE MATTER OF THE ESTATE OF NDERITO NGENDA MATTEO (DECEASED)** **PATRICK KANYI WAMUYU …………………………….. PETITIONER** **VERSUS** **REV. FR. JOHN BAPTISTA GICHUHI ………….…......1ST PROTESTER** **MATHEW NGENDA ……………………………….…....2ND PROTESTER** **KADIDA NYOKABI MUGWERU ……………….……... 3RD PROTESTER** **JUDGMENT** 1. The deceased died quietly on 03.02.2014 at a ripe old age of 86 years. He was said to be a business man from Gîtathînî. In his life he was a man of immense means. His estate was declared to be valued slightly above 950 million shillings. He was a public figure and a long-standing Town Clerk of then Municipal Council of Nyeri. 2. For avoidance of doubt the petitioner was Patrick Kanyi Wamuyu. All submissions described all the parties as petitioners. Ann Wamuyu Kanyi does not appear to have been a party but she consented to the issuance of grant to her son, Patrick Kanyi Wamuyu, who filed a petition dated 30.10.2014 on 31.10.2014. He indicated that he was a son to the deceased. The deceased was indicated to be married to one Gachoki Nderito but had no children. The Chief’s letter indicated that a former wife had one son, the petitioner. 3. Throughout the proceedings I reminded parties of the provision of section 112 of the Evidence Act. I reminded parties that any doubt could easily be removed by a DNA test. The petitioner was willing while the protestors were reluctant to do so. 4. Throughout the proceedings, the Court drew the parties’ attention to the provisions of section 112 of the Evidence Act and observed that any uncertainty regarding the disputed issue of paternity could have been resolved through DNA testing. The Court further noted that such testing was available as an objective and reliable means of addressing the issue. The position of each of the parties will be addressed shortly. This may end up being an Achilles heel. In determining the matter, the Court will consider the evidence placed before it. 5. At the onset, I wish to thank the advocates for their industry in the matter. Also, for well drafted submissions. I shall endeavour as much as possible to set the submissions and the evidence in full. Should they not be captured fully, it will not be for lack of analyzing the same, but due to economy of space. 6. The petition was published in the Kenya gazette on 19.12.2014. Immediately thereafter objections flowed. The first objector, Rev. Fr. John Baptista Gichuhi through the firm of M/s Wabandi Gacheru & Company Advocates, filed an objection on 20.1.2015. He indicated that he was the deceased’s nephew and heir to the estate. His main objection was that the petitioner, Patrick Kanyi Wamuyu had no *locus standi* to file the petition. 7. There was another objection dated 16.01.2015 by Eliud Muchemi Gathii, *pro se.* He indicated that he purchased Aguthi/Gatitu/1019 in 1984. He indicated that he was in possession since. He stated that he was left on the land and hence the sole heir. It is not clear whether this related to the land or the estate but he filed a cross petition for letters of administration. 8. On 29.01.2015, Kadida Nyokabi Mugweru filed an objection dated 28.01.2015 through the firm of M/s Gathiga Mwangi & Company Advocates. In the objection, she disputed the petitioner's claim that he was a child of the deceased. She described herself as the deceased's sister and contended that the deceased held the estate property in trust for the wider family. She further stated that the deceased married Euphresia Gacoki at Tetu Mission Hospital on 17.06.1952 and that she personally served as the bride's maid during the wedding ceremony. According to the objector, the deceased did not contract any other marriage thereafter. She also asserted that the petitioner did not attend the deceased's burial, a fact which, in her view, undermined his claim to be a child of the deceased. 9. The next objection was filed on 4.02.2015 by Cornelia Wanjiku Matteo, through the firm of M/s Gathiga Mwangi & Company Advocates. She indicated that she was the deceased’s sister. The deceased died on 3.02.2014. She filed answer to petition and cross petition for letters of administration. 10. The first objector, Rev. Fr. John Baptista Gichuhi, filed an Answer to Petition and a Cross-Petition for Grant of Letters of Administration. In the said pleadings, he indicated that he intended to petition jointly with Kadida Nyokabi Mugweru, whom he described as a sister of his deceased father. The objector maintained that the petitioner was not a son of the deceased and consequently had no priority or superior right to petition for the grant as claimed. He further contended that there existed other persons with a higher priority to administer and inherit the estate, including members of the deceased’s immediate family and other heirs, including himself. 11. He also stated that the petitioner had filed for letters of administration through concealment of material facts from the court, particularly concerning the identity of the rightful beneficiaries and administrators of the estate. According to the first objector, the petitioner had failed to make full and frank disclosure of all relevant matters, thereby rendering the proceedings defective. He set the following as the only surviving heirs, that is: 1. Mathew Ng’enda Makara - Nephew 2. Mathew Ng’enda Theuri- Nephew 3. Elesphan Ndungu Kibaara - Nephew 4. Edwin Kibaara Wanjiru - Nephew 5. Laura Nyokabi Kibaara – widow to one of the deceased’s brothers (name not given). 6. Mathew Ng’enda Makara - Nephew 12. He also named three others who are the deceased’s sisters, including, Kadida Nyokabi Mugweru, Cornelia Wanjiku Matteo and the late Maria Wangari Matteo. 13. He also indicated that the deceased left the following properties: 1. Nyeri /Emndaradha/ Township 12(L) 2. Tetu/Muthaini/1639 3. Nyeri Municipality/Block 1/215 14. He maintained that the petitioner was an intruder and stranger. He also filed an application for confirmation of grant dated 23.09.2016. He later filed summons for confirmation of grant dated 23.09.2016. He suggested that the deceased’s assets be subdivided into 4 families, that is: 1. The estate of the late Dominic Makara Matheo (deceased). 2. The estate of the late Edward Theuri Mateo (deceased). 3. The estate of the late Elemenjidio Kibaara Ngenda (deceased). 4. Cornelia Wanjiku Matteo. 15. The petitioner also sought that letter of administration intestate made on 19.09.2016 to Patrick Kanyi Wamuyu, Cornelia Wanjiku Matteo, Kadida Nyokabi Mugweru and Fr. John Baptista Gichuhi, be confirmed. 16. He proposed that the assets comprising the estate of the deceased be distributed to the sole beneficiary, Patrick Kanyi Wamuyu, in the following manner: 1. Nyeri /Emndaradha/ Township 12(L) - Patrick Kanyi Wamuyu 2. Tetu/Muthaini/1639 - Patrick Kanyi Wamuyu 3. Nyeri Municipality/Block 1/215 - Patrick Kanyi Wamuyu 17. It was the proposition by Patrick Kanyi Wamuyu, that he was the sole heir. The other parties are not beneficiaries. 18. The matter started on 25.09.2015 before Mativo J, where the three applications were heard together. On 25.2.2026 the application dated 29.1.2016 was allowed by consent. This was for leave to file answer to petition and cross petition together with witness statements. 19. Rev. Fr. John Baptista Gichuhi testified that he is a son of the third born brother of the deceased. He did not know the petitioner. In support of the cross petition, he wished to be given letters of administration. On cross examination by Mr. Kiminda, he stated that he came to know the petitioner when he heard they went to the chief. He was aware of the chief’s meeting of 3.10.2014. He confirmed that all his relatives were in the meeting, which had been called by one of the cousins of the witness. There was an advocate Jemimah Kiarie. 20. The witness testified that the Chief’s letter was issued following a meeting attended by the deceased’s relatives on 16.10.2014. He further stated that an earlier meeting had been held before the Chief on 3.06.2014. He confirmed that he was aware of one Michael Mwangi Maimba, also known as Maiba, whom he described as a son of the deceased’s sister. According to the witness, Michael Mwangi Mihuri guaranteed the petitioner’s petition. 21. The witness further testified that he did not believe that the deceased had a former wife or a son because the deceased had never informed him of the existence of either. However, he conceded that he was unable to independently confirm whether the deceased had a wife or child. He also stated that he could not identify or confirm the deceased’s properties with any particularity or provide details thereof. 22. On cross-examination by Mr. Mwangi, the witness stated that he did not know the petitioner or the petitioner's mother and was therefore unable to tell whether either of them attended the deceased's burial. Upon re-examination, he stated that he did not recall seeing any photographs in the deceased's home. He further testified that he had no knowledge of the properties comprising the deceased's estate. Additionally, he stated that he had not seen the photograph depicting two men and a goat. 23. The parties agreed by consent for grant of letters of administration to Patrick Kanyi Wamuyu, Cornelia Wanjiku Matteo, Kadida Nyokabi Mugweru and Fr. John Baptista Gichuhi on 19.09.2016. This aborted the hearing on the objection. 24. Further, on 19.09.2016, the parties entered into a consent appointing Patrick Kanyi Wamuyu, Cornelia Wanjiku Matteo, Kadida Nyokabi Mugweru, and Fr. John Baptista Gichuhi as joint administrators of the estate. The effect of that consent was to resolve, at least temporarily, the dispute regarding the administration of the estate and consequently abort the hearing of the objection proceedings. 25. The parties subsequently agreed that the dispute be determined through viva voce evidence. They further agreed that the Summons for Confirmation of Grant dated 20.03.2017 be treated as a protest to the proposed mode of distribution. Consequently, the court directed that the protest be heard and determined on the basis of oral evidence to be adduced by the respective parties and their witnesses. 26. Patrick Kanyi Wamuyu testified as PW1. He adopted his witness statement as his evidence-in-chief. In his testimony, he stated that he was the biological son of the deceased. He further testified that he was contacted by the deceased’s late wife, who reached out to him through her sister. According to him, at the time efforts were being made to trace him, the deceased was still alive. He stated that he subsequently went to see the deceased, Nderitu, in the year 2009. Thereafter, he established a relationship with him and came to know him as his father. He received support from the deceased’s wife. 27. PW1 further testified that after meeting the deceased in 2009, they maintained a father-son relationship until the deceased passed away. He stated that at the time of the deceased’s death, he was in South Africa undertaking a fellowship and was therefore unable to return in time. He eventually came back to Kenya on 22.04.2014. Upon his return, he commenced efforts to participate in matters relating to the deceased’s estate and to assert his status as the deceased’s son. 28. He met a few people who were working at the deceased’s home and went to see his father’s workers and people living in the house. They requested him to go and see Ndungu Kibaara. They agreed to meet in Donholm with the protestor and the Chairman of the clan. 29. PW1 testified that upon his return, he visited the deceased’s home where he met some people who had been working or staying with the deceased and others who were residing on the property. According to him, these individuals advised him to seek out Ndungu Kibaara who was looking for him. He thereafter contacted Ndungu Kibaara, and it was agreed that a meeting would be held at Donholm. The meeting was attended by the protestor and the chairman of the clan, among other persons. 30. PW1 further testified that in October 2014, he was summoned by the Assistant Chief and informed that a meeting of the deceased’s relatives had been convened. He attended the meeting at Muruguru Sub-location accompanied by his mother, Anne Wamuyu Kanyi. He recalled that among those present were Joseph Kamunya Gichure, the late Samuel Ndungu Theuri, and an advocate whose name he could not readily recall. 31. According to PW1, although some of the deceased’s nephews disputed his claim and maintained that he was not a son of the deceased, he remained steadfast in his assertion that he was indeed the deceased’s biological son. He testified that the deceased later fell ill and subsequently passed away while he was in India. He maintained that despite his absence from the country during that period, his relationship with the deceased as father and son had already been established. 32. On cross examination, he stated that he was a Professor at a local international university. He stated that the mother had 6 children, one of who passed away. He stated that the mother was the deceased’s wife. He stated that the mother was not married and he did not know any other husband of her mother. He stated that he met the deceased for the first time in 2009. He knew the deceased’s other wife in 2007. He called him through his sister, Jane Wanjiru. When he went to the home, the deceased’s wife had passed away. He was in India and could not attend the funeral but the mother attended. The eulogy did not indicate the deceased had any child. 33. Ndungu, he stated was situated less than one kilometre from the deceased’s homestead. During that visit, he was provided with the telephone contacts of Kibera Ndungu, Dr. Kibera, and Mathew, who was said to be the chairman of the clan, although he did not meet Mathew at that time. 34. He further stated that he was later called by two Assistant Chiefs, one from Gitathînî and another from Murungaru. According to his testimony, it was Kamiti who initially contacted him and informed him of the meetings concerning the deceased’s family and estate. He reiterated that it was Kamiti who called and facilitated his participation in those discussions. 35. He stated that the meeting was to determine who was to take out letters of administration. He stated that he knew his father’s home but not the extended family. He agreed that he was to get all the property of the estate. He said the mother and sisters are not getting anything since he was the only relative. He agreed that the deceased was legally married to the late widow who died in 2010. He stated that he knew his father when he was 37 years old in 2007. He was brought up by the grandparents. He stated that proposal by his cousins was that he gets nothing. 36. On cross examination by Gathiga Mwangi, he stated that he knew who his father was. His birth certificate did not have his father’s name as he did not know his father when he took the birth certificate. He stated that he knew Nderitu. He stated that his father was Nderitu Mateo. He said his father is not Christopher Mateo. He stated that the deceased went to postgraduate education. He said he had not taken DNA samples. He maintained on re-examination that the deceased was his father. 37. PW2 was Anne Wamuyu Kanyi, the petitioner’s mother. She adopted her statement as evidence in chief. She stated that the witnesses during succession was Michael Mwangi. Nderitu had introduced Mwangi who is now deceased. 38. On cross-examination by Mr. Mbuthia for the first protestor, the witness testified that she first met the deceased in 1969 when he was campaigning for election as a Member of Parliament. She stated that she was introduced to the deceased through elders who desired that she becomes his wife. According to her, the deceased was then married to one Gachoki, but that marriage had not been blessed with children. 39. The witness further testified that the elders had convened a celebration at Bhais Bar and Restaurant, during which the deceased informed them that the young lady whom they had introduced to him was expectant. She testified that this information was relayed in the presence of the elders who had facilitated their meeting. 40. She was assaulted after the party at 2 a.m. The petitioner was shown to the deceased, that is, pointed out to the deceased and elders, when he was in standard 4. The parents discouraged the relationship after the attack. She was initially a nursery school teacher at Gitathînî employed by the Municipal Council of Nyeri, though she did not have papers in court to show employment. She worked for 30 days. 41. She stated that the deceased helped with fees when the petitioner was in primary school. He did not help in university but attended the party before the petitioner joined university. As for fees, the witness paid in secondary but the deceased could help from time to time. It was her evidence that the deceased acknowledged the petitioner as his child in his life time. The deceased bought a sheep that helped to take the petitioner to the university. 42. The deceased was introduced to the petitioner, after graduation. After the petitioner married, the deceased’s wife went to the witness’ parents and told them to be updating her on the progress of the petitioner. When the petitioner married, he did not know that the deceased was the father, however, the deceased was given a wedding invitation. She explained the presence of the deceased in the prayer meeting as a family friend. She checked on the deceased several times after Gachoki died. She hailed from the same village as the deceased. 1. On cross examination by Gathiga Mwangi, she stated that she was not a wife of the deceased, though the chief indicated so. She stated that the parents wanted her to discontinue the relationship with the deceased and as an obedient daughter, she obeyed. She stated that they used to meet in lodging at Ruringu. She stated that she was attacked by the decease’s wife, but she did not report to the police. She stated that she knew Paul Kinuthia Muthiga, and knew from days she was teaching in nursery school. 2. She stated that she did not complain of the properties of Nderitu. She was summoned by the area Assistant Chief over the deceased’s property. She stated that she completed school when she had the child. They never married to the deceased or Nderitu of Kiguande or any other person. She got 4 children with Nderitu of Kiguande. She only informed the petitioner of his father when he went to take dowry. She did not have any document that the deceased could not sire children. She did not marry Nderitu because she was attacked by 4 other women. She stated that Patrick was a product of the pregnancy with the deceased. 3. She stated that Patrick knew that deceased was his father when he was at the University of Nairobi while on the other hand, the deceased knew the petitioner while the petitioner was in standard 4. She gave birth to other children after the petitioner. 4. The matter was then sent to this court. I heard PW3 and defence witnesses. 5. PW3 Joseph Kamuyu Gichure testified and adopted his witness statement. He knew the petitioner as the son of PW2 and the deceased. He was aware of their relationship. On being cross examined by Gathiga Mwangi, he stated that he went with three others to PW2’s parents to seek a hand in marriage for the deceased. He went with: 1. George Kage Kariuki 2. Moses Nderitu Kuchi 3. James Matteo Kahoro 6. He was sent while Nderitu had a wife. He did not know whether PW2 was married to the deceased. He remembered the deceased and the late wife attending the harambee. 7. It was PW2 who had convened the harambee. At that time the deceased had tried becoming an MP for Nyeri town. He was a Clerk to Nyeri Municipal Council. He recalled being invited to Bhais Bar in 1970 with the three men who had been sent for PW2 earlier in 1969. The deceased indicted that he wanted PW2 as a wife. He saw PW2 pregnant in April 1970. 8. He indicated that had she been married, the first son could have been named after the deceased. He did not know that PW2 was married to the deceased or to a mechanic. He stated such information could not be true as they are separated by a road. 9. On cross examination by Mr. Wabandi, he stated that PW2 had 4 other children but he has not counted the other children. He knew PW2 as they met in the community and she used to sell coffee to the factory where he worked. He stated he knew the petitioner who is educated up to Ph.D. level but usually leaves the country for further studies. He recalled that there used to be harambees and the deceased used to pay for the petitioner’s education. He stated that they did not talk to PW2. The court noted in the notes that he was a credible witness and was consistent. He had an opportunity to lie but did not lie. 10. He recalled that the deceased was buried on land parcel **Tetu/Mutathini/1689**. He further testified that there were disputes between 1969 and 1970 involving the late Eva Gachoki, the deceased's wife, and PW2. Although information regarding a confrontation between them reached him, he was not present and therefore did not witness the incident personally. 11. He stated that the deceased passed away in 2010, while Eva Gachoki died in 2014. He did not attend either of the burials. According to him, it was only Kanyi who informed him that he had attended one of the burials. 12. The defence case then proceeded with the testimony of Rev. Fr. John Baptista Gichuhi, as DW1, who adopted his witness statement as his evidence-in-chief. He testified that he is a Catholic priest and serves at the Rector of Christ the King Major Seminary, where he also resides. He recalled having filed for distribution dated 23.09.2016, a witness statement dated 06.09.2018, and a list of documents, all of which he adopted as part of his evidence-in-chief. The court observed, during his testimony, that there was a remarkable physical resemblance between the witness and the petitioner. He was not examined by Mr. Gathega Mwangi. 13. On cross examination he indicated that he was born in 1957. He came to know the petitioner when the petition was filed. He objected to the petition. He stated that Michael Mwangi Maimba was his relative and was staying in the same village as the deceased, that is, Gîtathînî. In the petition, Michael Mwangi Maimba recognized the petitioner as the deceased’s son. One of Michael Mwangi Maimba’s sons was staying with the deceased at Gîtathînî. 14. He recalled that PW1 and PW2 were summoned by the chief on 3.10.2013 since someone was claiming to be the deceased’s son. The cousins attended the summons. He stated that the purpose was property of the deceased. The witness however looked evasive. He did not attend the meeting. He stated that the deceased and his wife were incapable of siring. He did not know who could not sire between the two. He did not know PW2 and did not know if they had a relationship. He did not discuss the relationship between the deceased and PW2 with the deceased. He could not tell whether the petitioner was a product between the deceased and PW2’s relationship. He could not say for sure that the petitioner was not the deceased’s son. His issue was that the petitioner was an intruder and the nephews should inherit. . 1. On re-examination, he stated that summons was issued at the instigation of the petitioner. He did not know who attended the meeting and he did not know how the petitioner and Michael Mwangi Maimba were relating. He did not know whether there was friendship. The deceased was in hospital with Mwangi’s son, Mwangi. He could not dispute that the petitioner was a product of the relationship between PW2 and the deceased. However, the deceased had a wife and no children. 2. DW2, Mathew Ngenda, testified and adopted his witness statement dated 06.03.2019 as his evidence-in-chief. He stated that he knew the deceased and Eva Gachoki, whom he described as having raised him following the death of his father in 1952. He, however, testified that he did not know all of Eva Gachoki's names. According to the witness, there is one parcel of land situated between his residence and the deceased's land. He further stated that the deceased worked as a Treasurer at the Nyeri Municipal Council. He testified that Eva Gachoki died in 2008 and that he attended her funeral. He maintained that neither PW1 nor PW2 was involved in the funeral arrangements or proceedings. He further stated that he was a schoolmate of PW2 in 1962. 3. He indicated that he was born in 1949 and was 21 years old in 1970. Nderitu did not tell him that he had a child. He knew PW2 had other children but he did not know them. He only knew PW1. He did not know whether PW2 was married. He did not know that in 1952, the deceased married as he was only a child, I dare add, only 3 years old. He stated that the petitioner was not a child of the deceased since, “I had not seen him.” He stated that he attended the meeting at the chief’s office in 2004 but DW1 was not present. He continued that the deceased was living alone between 2008 and 2014. He stated that Michael Mwangi Maimba was his cousin as the mothers are sisters. 4. He did not know Maimba’s son who was staying with the deceased. He did not know that Michael Mwangi Maimba was a guarantor to the petition. Maimba had his own children. He stated that Eva Gachoki did not have children but he did not know who between the two had a problem siring children. 5. On further testimony, DW2 stated that he did not know Maimba's son who was allegedly residing with the deceased. He also testified that he was unaware that Michael Mwangi Maimba had acted as a guarantor to the petition. He stated that Maimba had children of his own. The witness further testified that Eva Gachoki did not have any children. However, he conceded that he did not know whether it was Eva Gachoki or the deceased who had difficulties siring children, and was therefore unable to state which of the two was responsible for their childlessness. 6. During cross-examination, the witness was reluctant to disclose his relationship with DW1. However, upon being directly questioned by the court, he eventually acknowledged that DW1 was his brother, albeit after taking a circuitous route before making the admission. On re-examination he stated that in 1952 he was a small boy. 7. DW3 was Raphael Makara Wambugu, from Kamakwa. He adopted his statement dated 26.03.2019. 8. On cross-examination by Mr. Wabande Gacheru, the witness stated that he was a cousin of the deceased. He testified that he was born in 1947 and resides near the deceased's land. According to him, the land on which they lived had originally belonged to a single owner before it was subdivided. 9. He stated that he was not aware of any child having been begotten by the deceased and Eva Gachoki and thought that the two had no children. He further testified that he came to know PW2 when she was sweeping in town. However, he stated that he was unaware of the nature of her relationship, if any, with the deceased. He never visited the deceased and did not attend the deceased. The court noted that the witness was lying and evasive. 10. On cross-examination by Mr. Kiminda, the witness stated that he was five years old in 1952 and twenty-three years old in 1970. He testified that he did not discuss the deceased's private affairs with him. 11. The witness disowned and recanted the portion of his witness statement suggesting that the deceased was incapable of siring children. He clarified that he had neither examined the deceased nor Eva Gachoki and was therefore not in a position to state which of the two, if any, had fertility challenges. He further conceded that PW2 was employed by the then Nyeri County Council, and that the deceased was likewise employed by the same local authority. 12. The court was thereafter informed that the next witness was bedridden and unable to attend court. In the circumstances, the court directed that the witness could be heard at his place of residence, provided that the necessary security arrangements were made to facilitate the visit. 13. The court further urged the parties to explore the possibility of resolving the issue of paternity through DNA testing and the filing of an appropriate report. The petitioner indicated his willingness to undergo such testing and to cooperate with the process. The other parties, however, were reluctant to commit themselves to the proposal, and no consensus was reached on the matter at that stage. 14. DW4 was Octavia Muthoni Mutahi, of Tetu Murungaini. She knew the deceased. She adopted her statement dated 26.03.2019. On cross examination by Wabandi Gacheru, she stated that they used to live in the same village as the deceased. She knew the deceased’s father, Mateo, the deceased’s wife Eva and used to go to Tetu Catholic Church. Her husband and the deceased were agemates. The witness’s husband came from Mathira, where Eva Gachoki hailed from. She was not married when they met first. He knew where the deceased used to live, which was across the road from where the session was being undertaken. Eva Gachoki did not have children. She did not know PW2. 15. She stated that the deceased’s home is ½ km from her home. It is just beyond the tarmac to Tetu. She did not know Michael Mwangi Maimba. However, she knew that on the right to the deceased’s house was the house of Maimba. She used to go to the deceased’s house until Gachoki died. She never went to Maimba’s house. She now stated that she never entered the deceased’s house, but only greeted him. She did not know who had issues getting children. 16. DW5 was John Ndungu Kanja who was born in 1947. He adopted a statement dated 11.03.2019. On cross examination by Gathiga Mwangi, he stated that he knew the deceased in 1971. He also knew PW2. He did not know whether she was married to the deceased. Between 1972 and 1989, she was a councillor at Nyeri Municipal Council. PW2 was a nursery teacher. The deceased exited the council in 1972. 17. The witness testified that the deceased did not have any children. He further stated that the customary rites associated with the introduction and recognition of a child within the family were never performed. He also testified that, under the applicable customs, there was a requirement for the payment of a customary fee in respect of a pregnancy, which was 10 goats. He stated that he had never heard of anyone having paid the customary ten goats said to be payable in respect of the pregnancy in question. 18. The witness testified that he knew DW1 and had in fact served as the master of ceremonies during the burial of Eva Gachoki. He stated that he was unable to explain why DW1 had indicated that he did not know him. He further testified that he knew PW2, whom he identified as being from Gîtathînî. According to the witness, PW2 was at the material time employed as a nursery school teacher by the Nyeri Municipal Council. 19. On re-examination, he stated that he knew PW2 and that her home was 200m to his home and 300m to the deceased’s home. He used to see the deceased occasionally, but he never told him that he had a child from the village. He recommended employment between 1979 and 1989. 20. On examination by the court, the witness stated that he did not know the deceased personally during the period between 1969 and 1970. He nevertheless testified that, during that time, the deceased was serving as the Mayor of the Nyeri Municipal Council. 21. On further cross-examination by Mr. Kiminda, arising from issues raised during re-examination, the witness stated that he knew Patrick. However, he testified that he did not know Patrick's father. He further stated that he was unaware whether the deceased attended any harambee organized to raise funds for Patrick's education, including his admission to university. 22. The court further reminded the parties of the issue of paternity and the need to consider resolving it through DNA testing. While the petitioner remained amenable to the proposal, the protestors were reluctant to commit themselves to the process. The court directed that the proposal for DNA testing be taken seriously, particularly in light of Section 112 of the Evidence Act, which places the burden of proving facts especially within the knowledge of a party upon that party. 23. Parties filed submissions and the filing of an appropriate report. The petitioner indicated his willingness to undergo such testing and cooperate with the process. The other parties, however, were reluctant to commit themselves to the proposal, and no consensus was reached on the matter at the end of trial. Parties left the decision to the court. 24. The matter had initially been scheduled for delivery of judgment on 15.06.2026. However, the court was due to proceed on leave and was consequently unable to complete and deliver the judgment within the anticipated timeframe. The delivery was therefore rescheduled for today. Any inconvenience occasioned by the delay is sincerely regretted. Submissions 1. The petitioner filed submissions dated 13.12.2025. They submitted that the petitioner filed the petition and was guaranteed by Michael Mwangi Maimba, who has featured prominently in the proceedings. He submitted that the objection proceedings were heard with Fr. John Baptista Gichuhi as the only witness who testified. After testimony, parties reached consent on 19.09.2016, where parties reached a consent on administrators. They were unable to agree hence each filed separate application for confirmation of grant where directions were given. 2. The petitioner submitted that he was summoned at the instant of the deceased’s nephews but the 2nd protestor was not in attendance though he indicated he was aware of the meeting in Kamakwa location, but the nephews stride both sublocations. During the objection proceedings, Fr. John Baptista Gichuhi admitted that the deceased’s nephews caused the meeting with the chief. It was submitted that a party was held, according to PW3, to celebrate the anticipated birth of the deceased. It was his position that he was summoned to the Assistant Chief’s office in Munungaini and also for Gîtathînî. 3. He submitted that the mother’s evidence is that the petitioner was born in October 1970 as a result of the relationship between the deceased and his mother. She attended the pre-birth cerebrations at Bhais Bar. They did not marry since the deceased’s wife made the relationship sour. This was corroborated by PW3. They submitted that DW2 and DW3 changed their statements and in cross examination admitted that they did not know who was not capable of siring. 4. The petitioner submitted that he was summoned to a meeting convened at the instance of the deceased’s nephews. However, the 2nd applicant was not in attendance, despite acknowledging that he was aware of the meeting held within Kamakwa Location. It was pointed out that the deceased’s nephews resided across the two sub-locations concerned. Reliance was placed on the testimony given during the objection proceedings, where Rev. Fr. John Baptista Gichuhi admitted that it was the deceased’s nephews who had initiated and organised the meeting with the Chief. 5. The petitioner further submitted that, according to PW3, a celebration was held in anticipation of the petitioner’s birth. He maintained that he was summoned both to the Assistant Chief’s office at Munungaini and Gîtathînî. The petitioner relied on the evidence of his mother, who testified that he was born in October 1970 as a result of a relationship between herself and the deceased. It was submitted that it was her evidence that that she attended the pre-birth celebrations held at Bhai’s Bar. Although she and the deceased never married, this was not due to the absence of a relationship but rather because the deceased’s wife made the relationship difficult and ultimately untenable. They submitted that this evidence was corroborated by PW3. 6. The petitioner further argued that DW2 and DW3 fundamentally departed from their earlier statements. During cross-examination, they conceded that they had no knowledge as to whether the deceased was capable or incapable of siring children. It was therefore submitted that their testimony could not support the assertion that the deceased had no biological children and should have no evidential weight. 7. They submitted that DNA could have cleared the issue but the protestors were unwilling. In absence of consent of all parties sections 112, 107 and 109 of the Evidence Act came in handy. The petitioner testified that the protestors were posting that they did not know who between the deceased and his late wife was not siring. The protestors refused to consent to DNA. On the other hand, the petitioner asserted that he was the son of the deceased, called the mother and the father’s friend, the guarantee by the deceased’s cousin with Michael Mwangi Maimba. They relied on the case of *K V S (2008) eKLR.* They prayed that he has discharged the burden of proof. 8. Mathew Ngenda and Kadida Nyokabi Mugweru filed submissions dated 26.02.2026. They submitted that the deceased died without a spouse or child hence Section 39 of the Law of Succession Act applies. The said section provides for the situation, where intestate has left no surviving spouse or children, and provides as follows: 9. *Where an intestate has left no surviving spouse or children, the net intestate estate shall devolve upon the kindred of the intestate in the following order of priority-* * 1. *Father; or if dead* 2. *Mother; or if dead* 3. *Brothers and sisters, and any child or children of deceased brothers and sisters, in equal shares; or if none* 4. *Half-brothers and half-sisters and any child or children of deceased half-brothers and half-sisters, in equal shares; or if none* 5. *The relatives who are in the nearest degree of consanguinity up to and including the sixth degree, in equal shares.* 10. *Failing survival by any of the persons mentioned in paragraphs (a) to (e) of subsection (1), the net intestate estate shall devolve upon the* *State, and be paid into the Consolidated Fund.* 11. Reliance was placed on the matter of the estate of **Joseph Muchiri Komu (deceased) Nakuru HC Succession 441/1998)**. They submitted that the petitioner’s evidence was that he was never assisted by the deceased. He knew the deceased in 1997 and was told by the sister who was never called as a witness. They submitted that contrary to section 46 of the Law of Succession a different Assistant Chief issued a letter for succession purposes. The said section provides as follows: 12. Whenever it becomes known to any police officer or administrative officer that any person has died, he shall, unless aware that a report has already been made, forthwith report the fact of the death to the sub-chief of the sub-location or to the chief or administrative officer of the area where the deceased had his last known place of residence. 13. Any person to whom a report is made under subsection (1) shall- * 1. at the request of any person who appears to have a legitimate interest in the estate of the deceased; or 2. if no application for representation in respect of the estate has been made within one month after the date of the death of the deceased, forthwith proceed to the last known place of residence of the deceased, and take all necessary steps for the protection of his free property found there, for ascertainment of his other free properties (if any), for ascertainment of all persons appearing to have any legitimate interest in succession to or administration of his estate, and for the guidance of prospective executors or administrators as to formalities and duties: Provided that if the last known place of residence of the deceased is situated in a municipality, or when the deceased dies outside Kenya wherever his property is situated, the person to whom a report is made under subsection (1) shall not take the action which he is required to take under this subsection unless and until he has first reported the death to the Public Trustee, who may if he so wishes himself take the action instead of that person; 1. If any person to whom a report is made under subsection (1) finds that there is any free property of the deceased, or that the person appearing to have the greatest legitimate interest in succession to or administration of his estate are resident in any other sub-location or area, he shall forthwith report those facts to the sub-chief, chief or administrative officer of that other sub-location or area, who shall thereupon take, in respect of the property or persons, the steps are prescribed by subsection (2). 2. Any assistant chief, chief or administrative officer becoming aware that there is in his sub-location or area any free property of a deceased person, or that there are resident in his sub-location or area any persons appearing to have the greatest legitimate interest in succession to or administration of the estate of a deceased person, but that no grant of representation in respect of that estate has yet been made, shall, at the request of any person who appears to have any legitimate interest in that estate, and without waiting for a report under this section, forthwith take, in respect of the property or persons, the steps prescribed by subsection (2). 3. A person who is required to take the steps referred to in subsection * 1. shall forthwith report to the Public Trustee the death of the person concerned; and 2. notify the Public Trustee of the steps taken by him pursuant to that subsection. 4. They submitted rather falsely that PW2 admitted to be married to Nderitu the mechanic. They also dealt with questions of legitimacy, which are irrelevant to the case and should not engage the court any further. They relied on the question of having been accepted by the mother’s husband and section 118 of the Evidence Act. They anchored the petitioner’s lack of support as a factor removing dependency. By these submissions they admitted that the petitioner was a son but not supported by the deceased, but someone else. 5. They submitted that the mother claimed to be married but did not produce any evidence as required under section 59 of the Marriage Act. The Act is irrelevant for the matter herein for the deceased was not bound by it nor is it sine qua non dependency. 6. The protestors submitted that the petitioner neither sought nor subjected himself to DNA testing. They contended, somewhat paradoxically, that the burden of proving paternity rested entirely upon the petitioner. The protestors further argued that they had presented credible community witnesses who testified that the deceased had no biological children. It was their position that dependency and entitlement to benefit from an estate must be strictly proved in accordance with section 29 of the Law of Succession Act. In support of their submissions, reliance was placed on the persuasive case of [**In re Estate of M'muthamia Mwendwa (Deceased)** [2016] KEHC 2599 (KLR)](https://new.kenyalaw.org/akn/ke/judgment/kehc/2016/2599/eng%402016-10-13), where A.Mabeya J, posited as follows: 11. While considering the meaning of a dependant under section 29 of the Act in the case of Beatrice Ciamutua Rugamba .v. Fredrick Nkari Mutegi & Others Chuka Succ. Cause No. 12 of 2016 (UR), the court held:- "From the foregoing, a dependent under section 29 (b) and (c) must prove that he/she was being maintained by the deceased immediately prior to his demise. It is not the mere relationship that matters, but proof of dependency." 12. In the present case, there was no evidence that was led to show that any of the children of the Petitioner were being maintained by the deceased immediately before his demise. There was no evidence, and indeed it was not even suggested that the deceased had settled any of his grandsons (children of the Petitioner) on the estate land. Indeed the evidence on record shows otherwise. According to the Petitioner, through the documents produced in the submissions of his Counsel, as late of February, and April, 1995 the deceased had intended to transfer the whole of the estate land to him. If that was the intention of the deceased as contended by the Petitioner, the deceased must not have settled any of his grandsons on that land. Further to the foregoing, there was no evidence to show how the grand children were dependent on the deceased during his lifetime. In the absence of any such evidence, it will be safe to assume that their residency and occupation of the estate land was by virtue of their father's (Petitioner) interest thereon. Their right and interest on the estate land cannot be held to be independent of their father. Their interest emanates from and falls under their father's interest and claim to the estate. In this regard, other than the children of the deceased under section 29 (a) of the Act, I hold that there were no other dependants of the deceased. First Protestor’s Submissions 1. The first protestor filed submissions stating that the petitioner filed for letters of administration intestate. He was described in form P&A 5 as a son of the deceased. In the same petition, his mother, Ann Wamuyu Kanyi, was described as a widow of the deceased and duly executed the requisite consent supporting the petitioner's appointment as administrator of the estate. The petition was supported by a letter from the Chief of Kamakwa Location dated 16.10.2014. It was indicated that notably, the letter contained certain inaccuracies. It stated that the deceased died on 26.08.2014, whereas the evidence before the court demonstrates that he died on 03.02.2014. The letter further indicated that the deceased was married to Gachoki Nderitu and had no children. They set out the summary of evidence tendered, which I may not regurgitate in view of its commonality with the summary above. 2. They submitted that the deceased herein contracted marriage in the year 1952 with his deceased wife which was terminated by the deceased wife’s death on 25/08/2010. It was posited that the foundation of the petition herein is that PW2 is the widow and/or the wife of the deceased and PW1 is the son of the deceased. Such union is contemplated to have occurred with PW2 in the year 1967 going forward. 3. It was submitted rather harshly that it is ridiculous to assert that the deceased had another wife. The deceased having contracted marriage which was monogamous was not eligible to enter into any other marriages during the subsistence thereof and it is incumbent that the deceased never contracted a marriage after the death of his wife. 4. It was submitted that PW2 had other children yet only PW1 claimed. They positively asserted that the children belonged to another Nderitu. They submitted that parties are bound by pleading and that whoever alleges must prove. Reliance was placed on section 107 and 108 of the Evidence Act that provide as follows: 1. **Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.** 2. **When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person.** **The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side.** 1. Further reliance was placed on the case of [**Muriungi Kanoru Jeremiah v Stephen Ungu M’mwirabua [2015] KEHC 1315 (KLR)**](https://new.kenyalaw.org/akn/ke/judgment/kehc/2015/1315/eng%402015-11-04)**,** where F. Gikonyo J, stated as follows in regard to the burden of proof: As I have already stated, in law, the burden of proving the claim was the Appellant’s including the allegation that the Respondent did not pay the sum claimed as agreed; i.e. into the account provided. Therefore, contrary to the argument by the Appellant, the trial magistrate was right in holding that the burden of proving that the banking of the proceeds of miraa supplied was not done in accordance with their mutual agreement was the Appellant’s and not the Respondent’s. The trial magistrate was absolutely correct in so holding and did not shift any legal burden to the Appellant. The Appellant claimed in his evidence that deposits made by the Respondent were not in accordance with the mutual agreement and were not commensurate to the quantity of miraa purportedly supplied to the Respondent. The Appellant was obliged in law to prove that allegation; after the legal adage that he who asserts or alleges must prove. Banking money into the account provided was part of the mutual agreement, at least as per the pleadings and the evidence by the Appellant. The Respondent simply testified that he paid for all the miraa he received and deposited into the account provided the agreed prices after deductions of his expenses. That averment does not place or create any burden, legal or evidential, on the Respondent to prove that he deposited a sum of Kshs. 98,200 as he has already denied the debt claimed in toto. In the circumstance of this case, the Respondent bore no burden of proof whatsoever in relation to the debt claimed. 1. On the binding nature of pleadings, reliance was placed on the decision of **In** [**Njeru & another v Nyakundi [2022] KEHC 13963 (KLR)**](https://new.kenyalaw.org/akn/ke/judgment/kehc/2022/13963/eng%402022-10-11), where LM Njuguna, J, as she then was, posited as follows: As submitted by the appellants, a party is bound by their pleadings. (See the case of Independent Electoral and Boundaries Commission (supra) where the court held;“….it is now trite principle in law that parties are bound by their pleadings and that any evidence led by any of the parties which does not support the averments in the pleadings, or put in another way, which is at variance with the averment of the pleadings goes to no issue and must be disregarded….In fact that parties are not allowed to depart from their pleadings is on the authorities basic as this enables the parties to prepare their evidence on the issues as joined and avoid surprises by which no opportunity is given to the other party to meet the new situation. I wholly concur. 1. They submitted, in their words, that the petitioner cannot run away on requirements for proving the allegations that PW2 is the wife of the deceased and himself is the son of the deceased having not received acceptance and/or acknowledgement from the deceased as son in the context of a natural father who assumed responsibility and/or dependency could be construed on the part of the protester and PW2 as widow of the deceased. That the context would have informed this court, that PW1 is the son of the deceased if PW1 carried the name of his father as an identity in his certificate of birth, identity card and other relevant documents including baptism card and academic records and documents, and was supported by the deceased in his upbringing in terms of provision and payment of school fees, and if at all the deceased was negligent. 2. They submitted that it is clear that PW1 himself allege to have known the deceased in 2007 at the age of 37 years implying that there was no interaction between PW1 and the deceased prior, as falsely alleged by PW2. That PW1 proceeded and wedded and nowhere the deceased was recognized as his father. They submitted that the protester’s claim to the estate of the deceased is not backed by any wishes of the deceased nor is the protester established as a beneficiary in the deceased lineage under the law of intestacy under section 66 of the Succession Act and rule 7(7) of the probate and administration rules as a person even entitled to grant of representation of the deceased. The protester and PW2 are stranger to estate of the deceased with no *locus standi*. 3. Further reliance was placed on Rule 7(7) of Probate & Administration Rules. They placed further reliance on the case of ***re Guandai (Deceased) (Succession Cause 1931 of 2009) [2026] KEHC 3598 (KLR) (Family*)**.They concluded thatas the deceased had no known children and PW1 and PW2 have failed to sufficiently prove dependency during the deceased’s lifetime, the person entitled to share in the estate of the deceased are established pursuant to *Section 39(1) (c) of the Law of Succession Act* Analysis 1. This matter has been before the courts for over twelve years. It is by all accounts, a fairly straightforward dispute. The cause was instituted on 31.10.2014 and has remained pending ever since. Over the years, the parties have advanced numerous reasons for the failure to bring the proceedings to a timely conclusion. Despite its age, the matter has remained surprisingly active, generating a considerable volume of applications, and interlocutory proceedings. 2. The history of this litigation aptly illustrates the concerns that the Constitution seeks to address under Article 159(2)(b), namely, that justice shall not be delayed. While parties are entitled to fully ventilate their respective cases, litigation must, at some point, come to an end. The prolonged pendency of this matter has not only delayed the final resolution of the dispute but has also postponed the enjoyment of the fruits of succession by those ultimately found to be entitled to the estate. 3. The court was reluctant to take the short cut that is available. The parties abandoned objection proceedings on 19.09.2026 by consent. They were never revived or consent order set aside. No application was made to set it aside. The matter, therefore is strictly for confirmation. However, given the evidence tendered, the court will have to address the issues left to it, albeit having been decided earlier. This is on the basis of the decision in **Odd Jobs –vs- Mubia [1970] EA 476.**, where the Court of Appeal for East Africa held that a court may base its decision on an unpleaded issue, if it appears from the course followed at the trial that the issue has been left to the court for decision. 4. That decision was followed by the Court of Appeal in the case of **Vyas Industries –vs- Diocese of Meru [1982] KLR 114** in which the Court of Appeal cited with approval the decision in the case of *Odd Jobs –vs- Mubia [1970] EA 476* in the following terms – **“The circumstances in which an unpleaded issue can become an issue in a suit is a question which was considered in Odd Jobs –vs- Mubia [1970] EA 476 in which it was held that:** **a) a court may base its decision on an unpleaded issue if it appears from the cause followed at the trial that the issue had been left to the court for decision.** **b) On the facts the issue had been left for decision by the court as the advocate for the appellant led evidence and addressed the court on it.”** 1. This was also addressed in the case of [**Isaboke v Nyakundi [2021] KECA 42 (KLR)**](https://new.kenyalaw.org/akn/ke/judgment/keca/2021/42/eng%402021-09-23)**,** where the court of appeal [S. Ole Kantai, HA Omondi & M. Ngugi, JJA] posited as follows: 17…..It was established to the required standard that the tile was obtained fraudulently. The parties in the pleadings and evidence made a case in respect of the title and it was within the courts mandate to determine. Parties are free to lead evidence and leave the matter for the court to decide – see Odd Jobs v Mubia where this Court stated: “With respect to the learned Judge, that issue does not flow from the pleadings. However, that notwithstanding, a court may base a decision on an unpleaded issue where, as here, it appears from the course followed at the trial, that the issue has been left to the court for decision – see [Odd Jobs vs Mubia](https://kenyalaw.org/akn/ke/judgment/keca/2021/42/null)[1974] EA 476” 1. There are only two substantive issues for determination in this matter. The first is the identification of the beneficiaries entitled to inherit the estate of the late Nderito Ngenda Matteo (deceased). The second concerns the mode of distribution of the estate among those beneficiaries found to be entitled. There is also an ancillary issue relating to costs, namely, who should bear the costs of these proceedings. Accordingly, the issues falling for determination are framed as hereunder: 1. *Who are the beneficiaries entitled to the estate of the late Nderito Ngenda Matteo (deceased)?* 2. *What is the appropriate mode of distribution of the estate?* 3. *Who should bear the costs of these proceedings?* 2. The file is a tale of love, power, balance of power, innate need for survival, and unfortunately, greed, subterfuge and skullduggery. If it may be recalled, Kiage JA, addressed the minefield that is love in the case of [**Walutsachi v Mary’s Mission Hospital [2022] KECA 1023 (KLR)**](https://new.kenyalaw.org/akn/ke/judgment/keca/2022/1023/eng%402022-09-23) as follows: **15. The field of love, no doubt, is littered with the wreckage of many a broken heart. The tears that have flowed, in the wake of betrayal, perfidy and other two - or multiple-timing adventures of lovers, is beyond reckoning. Thus must one who ventures into love do so alive to the perils that abound.** **16. For the appellant herein, whose sad tale is well-captured in the judgment of my learned sister Mumbi Ngugi, JA, with which I am in full agreement, the lesson learnt is that the wounds of love find scant balm in the courts of law. Love’s ills and woes can only be found in lovers’ return and reconciliation, failing which, in accepting and moving on, while holding onto hope for comfort elsewhere, or leaving Love’s threshing floor altogether, paying heed to Kahil Gibran’s The Prophet: “But if in your heart you would seek only love’s peace and loves pleasure, then it is better for you that you cover your nakedness and pass out of love’s threshing floor ….”** 1. Unfortunately, matters of love and human relationships seldom lend themselves to neat certainties. It is often difficult to discern who truly belongs within the fold and who does not. Many individuals carry deeply personal secrets to their graves, while others guard matters of the heart with remarkable discretion. Consequently, the court is frequently left to navigate a state of evidentiary uncertainty, piecing together fragments of the past in an effort to arrive at the truth. In the present case, however, the evidence placed before the court has gradually moved the matter from the realm of speculation and animated limbo towards a greater degree of certainty. 1. I have painstakingly listened to the witnesses who testified before this court. One common thread that emerged from the evidence is the tendency of some people to forget that old men were once young men and toddlers in nappies, wet behind the ears and that the passage of time does not erase the realities of their earlier lives. Some witnesses, who in their youth or childhood had no knowledge of the events in question, appeared before this court many decades later as elderly men, purporting to testify with certainty on matters that were plainly beyond their knowledge. In several instances, their testimony bore the hallmarks of reconstruction, conjecture, and, at times, deliberate falsehood. 2. The court was reminded that memory is fallible, but falsehood is altogether different. As I listened to the evidence, I found solace in the enduring wisdom that time may dim recollection, but it cannot alter the truth. Ultimately, the duty of the court is not to accept assertions merely because they are confidently made, but to weigh them against the totality of the evidence and determine where the truth resides and where the lies jut out from the evidence on record. This wisdom was made by C B Madan J, as he then was, way back in 1977, in *N v. N [1991] KLR 685*, where he expressed himself in the following terms: *I wish people would not tell me absurd and unbelievable lies. I feel disappointed if a lie told in court is not reasonable imitation of the truth and is not reasonably intelligently contrived. I wish people who tell lies before me would respect my grey hair even if they consider that my intelligence is not of high order. I wish the witness had not told me the most stupid of his lies, which both disappointed and made me feel intellectually insulted.* 1. However, I must recall that succession cases in their very nature are civil matters. The burden of proof lies on whoever positively asserts. It must also be recalled that evidence is not only direct evidence but circumstantial evidence. The first and most critical issue is whether the parties proved their case on a balance of probabilities. The burden of proof is set out in section 107-109 of the Evidence Act, which places the burden on whoever alleges: 107. (1) Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist. (2) When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person. 108. The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side. 109. The burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person.” 1. This is thus a civil hearing in which the court must find for one party or the other on the balance of probabilities. The question as to what amounts to proof on a balance of probabilities was discussed by Kimaru, J in **William Kabogo Gitau vs. George Thuo & 2 Others [2010] 1 KLR 526** as follows: **“In ordinary civil cases, a case may be determined in favour of a party who persuades the court that the allegations he has pleaded in his case are more likely than not to be what took place. In percentage terms, a party who is able to establish his case to a percentage of 51% as opposed to 49% of the opposing party is said to have established his case on a balance of probabilities. He has established that it is probable than not that the allegations that he made occurred.”** 1. This was further enunciated in the case of [**Palace Investments Limited v Geoffrey Kariuki Mwenda & Dollar Auctions [2015] KECA 616 (KLR)**](https://new.kenyalaw.org/akn/ke/judgment/keca/2015/616/eng%402015-06-19)**,** where the Court of Appeal [J Karanja, GG Okwengu, CM Kariuki, JJA] stated as follows: The burden of proof is placed upon the party that asserts a particular fact is to be discharged on a balance of probabilities. Denning J. in Miller –vs- Minister of Pensions [1947] 2 ALL ER 372 discussing the burden of proof had this to say:- “That degree is well settled. It must carry a reasonable degree of probability, but not so high as is required in a criminal case. If the evidence is such that the tribunal can say: ‘We think it more probable than not’, the burden is discharged, but, if the probabilities are equal, it is not. Thus, proof on a balance or preponderance of probabilities means a win, however narrow. A draw is not enough. So, in any case in which the tribunal cannot decide one way or the other which evidence to accept, where both parties’ explanations are equally (un)convincing, the party bearing the burden of proof will lose, because the requisite standard will not have been attained.” 1. The objections were based on 6 distinct criteria and for which they had a duty to prove. 1. Kadida Nyokabi Mugweru, alleged that the deceased’s properties were held in trust by the deceased for the entire family and were not his. 2. Eliud Muchemi Gathii indicated that he bought land parcel number Aguthi/Gatitu/ 1019 in 1984. 3. Cornelia Wanjiru Matteo maintained that only sisters and brother survived the deceased, and 4. The deceased was married to Euphrasia Gacoki in 1952 and did not marry anybody else. 5. Rev. Fr. John Baptista Gichuhi maintained that the petitioner was not a son of the deceased. 6. The deceased was incapable of siring children. 1. On the other hand, the petitioner made one allegation for which the burden was with him. 2. Given the current situation related to succession, I shall ignore the following issues as they are irrelevant to the determination of the question at hand. That is: 1. Whether the deceased was married to Euphrasia Gacoki in 1952 and did not marry anybody else. 2. Whether Eliud Muchemi Gathii bought land parcel number Aguthi/Gatitu/1019 in 1984. 3. Whether the deceased’s properties were held in trust by the deceased for the entire family and were not his. 3. Further, Eliud Muchemi Gathii fell by the wayside as the matter proceeded. In order to determine the question that is the elephant in the room, the court has to set out what the law is, in relation to succession. It was agreed that the deceased’s wife, Gachoki, did not bear children. It is irrelevant whether she was capable or not. What is relevant is whether the petitioner was born out of the relationship between the deceased and PW2. He was born in 1970. The court will then put together evidence of whether he was a son. 4. I will start with defence evidence which was to the effect that the petitioner was not a child of the deceased herein. DW5 knew the deceased in 1971. He was only 24 years. The deceased was born in 1928, and was 43 years then, in 1971. He retired from the municipal council. DW5 was not within his cycles then. He alleged existence of a custom, that is non existent. He has never seen it in place. 5. Further, customary law is irrelevant when it comes to recognition of children. He was a busy body that could not give the court any useful evidence. He was liar that could not even reconcile with the fact that they were neighbours and alleged friend of the deceased. DW1 did not know him, though he alleged to be the master of ceremony in Gachoki’s burial. He knew the deceased, by his own admission, after the petitioner was born. He did not even know when the petitioner who is a neighbor, went to school. 6. DW4 was equally not a useful witness. She could only confirm that the deceased and Gachoki did not have children and rightly wondered how she could know who had a problem. 7. She had never been to the deceased’s house despite his home being ½ km from the deceased’s home. She admitted that she did not know if the petitioner was the deceased’s son. Her evidence was therefore limited to the fact that Gachoki did not have children. Whether the deceased had children, it is outside her knowledge. 8. DW3 was a toddler when the deceased married. The court noted that he was an evasive and lying witness. His evidence was useless. He did not know the relationship between the deceased and PW2. 9. DW2’s evidence was related to only one question, Eva Gachoki did not have children. He was not told about PW2’s children and the deceased’s children. He did not know that Michael Mwangi Maimba, his cousin guaranteed the petitioner to file this succession case. His evidence did not show how the petitioner was not a son. It also did not support the application he filed. It is surprising that out of the several brothers and sisters of the deceased only DW1 and DW2, children of Edward Theuri Ndenga were interested. 10. DW1 was an interesting witness. His only issue was that the petitioner was a stranger. He had not come home. However, he himself had not been to the deceased’s home. He did not know how the man who was caring for the deceased was relating with the deceased. He could not dispute whether the petitioner was a produce of the relationship between the deceased and PW2. 11. Indeed, at the end of his testimony, he admitted that he cannot know whether the petitioner was not a child of the deceased. On cross-examination by the court, when he was evasive, he went like this: *Question – Can you for certain be sure that Patrick is not your cousin?* *Answer – I am not sure.* 1. He did not know if his uncle had a relationship with the deceased. Surely, if he was ignorant, could he just be informed. DW1 is a Catholic Priest as has been indicated that he was not sharing in the estate but has indicated his brothers and other nephews. The court is mindful of the maxim that there exists a duty to inform the ignorant. This duty, requires that truth be shared where ignorance prevails and that knowledge be imparted where misconception threatens to obscure justice, counsel the ignorant and admonish wrong doers. Before lamenting that the petitioner is a stranger, he had a duty to welcome strangers, shelter the homeless and show the way for those who are lost. He did not bother to inquire on the merit of the claim by the petitioner. When confronted in court, he was unable to resist the truth. In a rather disappointing manner, the court saw both the petitioner and DW1. Later, when at the site when DW4 another cousin of DW1 were in court. They are all a split image of each other. 2. The court observed that the dispute had crossed the Rubicon and it was no longer in doubt that the defence was very weak, as it was based on conjecture, hyperbole, and surmises. However, the objectors were reluctant to embrace that course, notwithstanding the state of their case. All witnesses had already admitted that the basis of their protest was conjecture. The witness was averse to the truth and did not inspire confidence. He was unable to reconcile with the fact that he was not in the deceased’s life and could not know his whereabouts. He was born in 1957. Thus in 1969, when conception was reportedly taking place, he was 20 years old, probably in a seminary pursuing other interests. It is the same place, he still stays in, the seminary. His evidence confirmed rather than destroyed the petitioner’s case. It is my humble hope that DW1 will one day find one virtue he lost, the ability to discern the truth right before his eyes. 3. On the other hand, PW3 was one of the 4 persons that took PW2 from her home. She was taken by the deceased and unfortunately, they were found, in one of the escapades by the wife, Eva Gachoki. PW2 was beaten. He saw PW2 pregnant in April 1970. At least, even not considering the other facts, PW2 was pregnant in 1969-1970. The question was not pregnancy, since PW1 was born in 1970. The only difference is that he was accompanied by other errand boys to PW2’s home to get her. The other errand boys were: 1. George Kage Kariuki 2. Moses Nderitu Kuchi 3. James Matteo Kahoro 4. The protestors however, instead of testing that evidence, asserted positively that the petitioner was a son of Nderitu the mechanic; they again brought one Nderitu of Kiguande. The assertion was not proved by the protestors. The court noted that the witness was credible. Having attended the cerebrations in April 1970 to cerebrate the pregnancy, he got this first hand from the two love birds, PW2 and the deceased. It is irrelevant that they had very different power relations. His evidence was not impeached. 5. PW1’s evidence was taken by other judges. It has a different status from the rest of the evidence that I took. The evidence of PW3 and defence witnesses were taken by me and I was able to observe their demeaor. This is not true of PW1 and PW2. I shall peruse and look for consistency but not demeanor. In the case of **Sugut v Jemutai & 3 others** (Civil Appeal 110 of 2018) [2023] KECA 202 (KLR), (KLR Kiage JA stated as doth: - 21. I have carefully considered those rival submissions by counsel in light of the record and the bundles of authorities placed before us. I have done so mindful of our role as a first appellate court to proceed by way of re-hearing and to subject the entire evidence to a fresh and exhaustive re-evaluation so as to arrive at our own independent conclusions. See Rule 29(1) of the [Court of Appeal Rules 2010](http://kenyalaw.org:8181/exist/kenyalex/sublegview.xql?subleg=CAP.%209); Selle Vs Associated Motor Boat Co [1968] EA 123). I do accord due respect to the factual findings of the trial court out of an appreciation that it had the advantage, which we do not, of having seen and heard the witnesses as they testified. I am, however, not bound to accept any such findings if it appears that the judge failed to take any particular circumstance into account or they were based on no evidence or were otherwise plainly wrong. I note from the record before us that the learned Judge may not have been in a fully advantageous position in that regard having taken up the case when it was already half-way heard. Her conclusions on the evidence and findings of fact were therefore from a reading of what was recorded by the previous judge. I think that this further widens our latitude for departure where necessary. 1. PW2 indicated that he broke the relationship with the deceased because when she was pregnant, she was attacked by 4 women, including the wife. It appears from the evidence, that Eva Gachoki came to know the husband’s mission which was supported by PW3. Her story rhymes with PW3. Given that the attack occurred at 2.00 a.m, the deceased and PW2 must have over celebrated. PW2 and PW3 were eye witnesses to the cerebration. Much was taken of the question of marriage. When it comes to children, marriage is irrelevant. 2. Article 53(a)(1(e) of the Constitution provides as follows: * 1. **To parental care and protection, which includes equal responsibility of the mother and father to provide for the child, whether they are married to each other or not; and…** 3. The right to inherit is not extinguished upon a child attaining the age of majority. Indeed, it is one of the few rights that endures throughout a person's lifetime and may not be defeated even by death. In matters of succession, the law does not discriminate between children on account of the status of their mothers. A child remains entitled to claim a share of a deceased parent's estate whether he or she is a minor, an adult, married, or otherwise independent. And whether the parents are married or not. It must also be borne in mind that every act of procreation has the potential to create a beneficiary in a succession cause. The Law of Succession Act recognizes this reality and expressly safeguards the rights of children of the deceased. The Act provides more succinctly for a situation where intestate has left a surviving child or children but no spouse, as follows: **Where an intestate has left a surviving child or children but no spouse, the net intestate estate shall, subject to the provisions of**[**sections 41 and 42**](https://new.kenyalaw.org/akn/ke/act/1972/14/eng%402022-12-31#sections%2041%20and%2042)**, devolve upon the surviving child, if there be only one, or shall be equally divided among the surviving children.** 1. First, the Law of Succession Act provides for universal application of the Succession Act. Section 2(1) provides as follows: *Except as otherwise expressly provided in this Act or any other written law, the provisions of this Act shall constitute the law of Kenya in respect of, and shall have universal application to, all cases of intestate or testamentary succession to the estates of deceased persons dying after the commencement of this Act and to the administration of estates of those persons.* 1. Therefore, in any case, whether PW2 was married to the deceased is irrelevant. On the other hand, Eva Gachoki did not leave any child. Relating to the petitioner, the purported customs to sanitise the relationship by payment of 10 goats does not exist. In any case, it is not applicable to Succession Act. 2. The child is not related to marriage but the act of being a child entitled one to inherit. The question the court is to answer, is not whether the petitioner was born outside or inside wedlock. It is whether, he was a child of the deceased. 3. First, PW1 led evidence that he was his father’s son. I take solace that from the evidence tendered, he was recognized by a huge chunk of the deceased’s extended family except that of Theuri. Secondly, DW1 acknowledged that he has no evidence that the petitioner was not a son. More crucially, when invited to consider DNA, the defence was reluctant. The petitioner was willing. The court is entitled to make an adverse inference, under section 112 of the Evidence Act. The said section provides as follows: In civil proceedings, when any fact is especially within the knowledge of any party to those proceedings, the burden of proving or disproving that fact is upon him. 1. The protestors asserted that the petitioner had a different father. The petitioner was willing to undertake DNA. He could not do so without samples from the protestors and others. Refusal or reluctance to provide samples can only mean one thing, if they were provided, the results could have been adverse to the protestors. In the case of **Nesco Services Limited v CM Construction [EA] Limited [2021] eKLR**, Justice G V Odunga as then he was stated as doth: 41. Since the said author was for reasons unknown to the Court not called to testify and dispute its authenticity, adverse inference could be made thereon. In Kenya Akiba Micro Financing Limited vs. Ezekiel Chebii & 14 others [2012] eKLR the court stated as follows: “Section 112 of the Evidence Act Chapter 80 of the laws of Kenya provides: ‘In civil proceedings, when any fact is especially within the knowledge of any party to those proceedings, the burden of proofing of disproving that fact is upon him.’ Where a party has custody or is in control of evidence which that party fails or refuses to tender or produce, the court is entitled to make the adverse inference that if such evidence was produced, it would be adverse to such a party. In the case of Kimotho –vs- KCB (2003) 1 EA 108 the court held that adverse inference should be drawn upon a party who fails to call evidence in his possession.” 1. Secondly, the petitioner’s mother proved that the pregnancy was caused by the deceased. Attempts to blame the deceased for being unable to impregnant holds no water. Assertions add no value at all. There needed to be medical evidence of that inability. None was produced in court. The evidence that was not controverted was that the deceased’s wife sought for the petitioner in the tail end of her life. The petitioner also met and was recognized by the deceased as a son. PW2 attended the funeral while PW1 did not attend as he was out of the country. 2. The protestors took issue as to why the petitioner did not challenge his involvement in burial. There is no link between burial disputes and succession. It must also be noted that the deceased was introduced to the petitioner when he was in standard 4, while the petitioner was introduced later in life. 3. The evidence demonstrates that the family members who attended the meeting before the Chief resolved that the petitioner should petition for representation to the estate of the deceased. The only dissent emanated from persons who did not attend that meeting and therefore did not participate in the deliberations leading to the resolution. The court also attaches considerable weight to the fact that Michael Mwangi Maimba, who was described as one of the persons closest to the deceased, stood as a guarantor for the petitioner. His conduct was not that of a stranger but of a person familiar with the deceased's family circumstances. Such support lends credence to the petitioner's claim and is consistent with the family's contemporaneous recognition of him as a person entitled to take out representation in respect of the estate. 4. Had there been genuine doubt regarding the petitioner's status within the family, it is unlikely that those closest to the deceased would have entrusted him with the responsibility of petitioning for letters of administration. 5. The respondents were setting several fathers for the petitioner without actually, proving this. In cross examination, the advocates concentrated on PW2’s marriage, which was irrelevant to the determination of the matter in dispute. It is not the law that only those born within wedlock inherit. They also dealt with the deceased’s lack of responsibility. 6. Having elected to compromise the objection proceedings through a consent, the parties cannot seek to revive the abandoned objection through the back door of summonses for confirmation of grant. The issue that had been the subject of the objection was settled by the consent, and the court must give effect to the parties’ agreement. A confirmation proceeding cannot be used as a vehicle to reopen matters that were compromised and concluded by consent without first seeking and obtaining an order setting the consent aside 7. Having evaluated all the evidence, I find as a fact that the petitioner was son of the deceased. None of his siblings or mother were dependents of the deceased. Having so found, I shall proceed to the next question, how to share properties. 8. The first wife died without an heir. PW2 did not qualify as a wife and she admitted as such. Beneficiaries must be in terms of Section 29 of the Law of Succession Act which provides as follows: **For the purposes of this Part, "dependant" means-** 1. **the wife or wives, or former wife or wives, and the children of the deceased whether or not maintained by the deceased immediately prior to his death;** 2. **such of the deceased's parents, step-parents, grandparents, grandchildren, step-children, children whom the deceased had taken into his family as his own, brothers and sisters, and half-brothers and half-sisters, as were being maintained by the deceased immediately prior to his death; and** 3. **where the deceased was a woman, her husband if he was being maintained by her immediately prior to the date of her death.** 4. I have to address one vexing question, the petitioner’s claim. The protestors submitted they had presented credible community witnesses who testified that the deceased had no biological children. It was their position that dependency and entitlement to benefit from an estate must be strictly proved in accordance with section 29 of the Law of Succession Act. With respect, the submissions by the protestors proceed on a fundamental misapprehension of the law. The petitioner has not approached this court as a dependant under section 29 of the Law of Succession Act. His claim is founded on his assertion that he is a son of the deceased and is therefore entitled to inherit by dint of sections 3(2) and 38 of the Act. The legal principles applicable to a dependant's claim are consequently inapplicable to the present dispute. 5. The distinction is critical. Section 29 concerns persons who seek provision from the estate on account of dependency. Such a claimant must establish that he or she was being maintained by the deceased immediately prior to death or otherwise falls within the statutory definition of a dependant. Dependency is therefore the cornerstone of a claim under section 29. 6. In contrast, section 38 concerns the distribution of an intestate estate among the surviving children of the deceased. A child claiming under that provision does not have to prove dependency, maintenance, cohabitation, usefulness to the deceased, affection, recognition, or even regular contact with the deceased. The law confers the right to inherit by virtue of the parent-child relationship itself, *ipso facto*. 7. Indeed, a child may have been born out of wedlock, raised by another family, lived far away from the deceased, or never received any financial support from the deceased. Such circumstances do not extinguish the child's right to inherit. Once paternity is established, the law places the child on equal footing with all other children of the deceased. He can even be born within wedlock of another man’s family. 8. Section 3(2) of the Law of Succession Act is particularly instructive. It provides that references to a child include children whom the deceased had expressly recognized or accepted as his own. The provision was enacted to ensure that inheritance rights are not defeated by the circumstances of birth. More importantly, where biological paternity is proved, the child's entitlement flows from that blood relationship and not from proof of dependency. 9. The protestors' insistence that the petitioner was required to prove maintenance or dependency therefore imposes a burden unknown in law. The petitioner is not seeking discretionary provision from the estate. He is asserting a direct inheritance right as a child of the deceased. The only material question for determination is whether the petitioner has established, on a balance of probabilities, that he is the son of the deceased. Conversely, whether the protestors disproved the petitioner’s assertion as a son. It must be recalled, that the court’s quest to determine the question of paternity in the objection proceedings was aborted by consent. This was a tacit concession that the petitioner was a child of the deceased. Otherwise they should have waited for objection proceedings to be determined. 10. If the question of sonship is answered in the affirmative, the petitioner's right to participate in the estate follows automatically by operation of law. The court would not be required to undertake any further inquiry as to whether he was supported by the deceased, whether he lived with the deceased, whether he was known to the deceased, or whether he rendered any benefit to the deceased during his lifetime. Those considerations are relevant to dependency claims under section 29 but are wholly irrelevant to a child's claim under section 38. 11. The court must therefore be careful not to conflate the law relating to dependants with the law relating to children. The petitioner's case stands or falls on proof of sonship. It does not stand or fall on proof of dependency. 12. However, that the sole spouse predeceased the deceased herein. Therefore, the next question is how to distribute the estate. The distribution can only be in terms of section 38 of the Law of Succession Act. Given that the petitioner is the sole heir, therefore the protest cannot have merit since the indicated beneficiaries are not in the close degree of consanguinity. Nephews are in the 4th degree of consanguinity. Only the petitioner is in the first degree of consanguinity. I therefore dismiss the protest by Cornelia Wanjiku Matteo, Kadida Nyokabi Mugweru, and Rev. Fr. John Baptista Gichuhi as unmerited. 13. The consequence of my finding is that the estate of the late Dominic Makara Matteo (deceased), the estate of the late Edward Theuri Matteo (deceased), the estate of the late Elemenjidio Kibaara Ngenda (deceased), and Cornelia Wanjiku Matteo are not beneficiaries of the estate herein and are therefore not entitled to inherit from the deceased. The continued inclusion of Cornelia Wanjiku Matteo, Kadida Nyokabi Mugweru, and Rev. Fr. John Baptista Gichuhi as administrators of the estate serves no useful purpose. 14. Accordingly, the grant of letters of administration intestate issued on 19.09.2016 is hereby revoked. In its place, a fresh grant of letters of administration intestate shall issue to Patrick Kanyi Wamuyu as the sole administrator of the estate of the deceased. 15. The New administrator shall proceed to complete the administration of the estate in accordance with this judgment and the provisions of the Law of Succession Act without further reference to the now removed beneficiaries. In any case, the evidence on record is that one of the administrators, Cornelia Wanjiku Matteo is deceased. Therefore, the grant stands revoked. 16. The administrators shall render a full, true, and accurate account of their administration of the estate to the sole beneficiary, Patrick Kanyi Wamuyu. 17. Further, all monies, funds, and other assets held, deposited, or invested on behalf of the estate shall be released and transferred to Patrick Kanyi Wamuyu forthwith, he being the sole heir and beneficiary of the estate of the deceased as determined in this judgment. 18. Given that there are no other heirs, I confirm the letters of administration intestate same in terms of summons for confirmation dated 20.03.2017. 19. This leaves the issue of costs, which are generally discretionary. However, the discretion is not arbitrary. The Court of Appeal in the case of [**Farah Awad Gullet v CMC Motors Group Limited [2018] KECA 158 (KLR**)](https://new.kenyalaw.org/akn/ke/judgment/keca/2018/158/eng%402018-10-18) had this to say: **It is our finding that the position in law is that costs are at the discretion of the court seized up of the matter with the usual caveat being that such discretion should be exercised judiciously mkeaning without caprice or whim and on sound reasoning secondly that a court can only withhold costs either partially or wholly from a successful party for good cause to be shown.** 1. The Supreme Court set forth guiding principles applicable in the exercise of that discretion in the case of [**Rai & 3 others v Rai & 4 others** [2014] KESC 31 (KLR)](https://new.kenyalaw.org/akn/ke/judgment/kesc/2014/31/eng%402014-03-04), as follows: 18.It emerges that the award of costs would normally be guided by the principle that “costs follow the event”: the effect being that the party who calls forth the event by instituting suit, will bear the costs if the suit fails; but if this party shows legitimate occasion, by successful suit, then the defendant or respondent will bear the costs. However, the vital factor in setting the preference, is the judiciously-exercised discretion of the Court, accommodating the special circumstances of the case, while being guided by ends of justice. The claims of the public interest will be a relevant factor, in the exercise of such discretion, as will also be the motivations and conduct of the parties, prior-to, during, and subsequent-to the actual process of litigation. 22. Although there is eminent good sense in the basic rule of costs - that costs follow the event- it is not an invariable rule and, indeed, the ultimate factor on award or non-award of costs is the judicial discretion. It follows, therefore, that costs do not, in law, constitute an unchanging consequence of legal proceedings - a position well illustrated by the considered opinions of this Court in other cases. The relevant question in this particular matter must be, whether or not the circumstances merit an award of costs to the Applicant. 1. The parties are related and must now learn to live with the new lived reality. Therefore, I direct that each party to bear its own costs. Determination 1. The court makes the following orders: 2. Summons for Confirmation of Grant dated 23.09.2016 lacks merit and is accordingly dismissed. 3. For avoidance of doubt, the estate of the late Dominic Makara Matteo (deceased), the estate of the late Edward Theuri Mateo (deceased), the estate of the late Elemenjidio Kibaara Ngenda (deceased) and Cornelia Wanjiku Matteo are not beneficiaries of the estate of the deceased herein, and are not entitled to inherit from the estate of the late Nderito Ngenda Matteo (Deceased). 4. The petitioner, Patrick Kanyi Wamuyu, is a son of the deceased herein and the sole heir of the estate of his father, Nderito Ngenda Matteo (Deceased). 5. The grant issued on 19.09.2016 to Patrick Kanyi Wamuyu, Cornelia Wanjiku Matteo, Kadida Nyokabi Mugweru and Fr. John Baptista Gichuhi, is hereby revoked. 6. A new grant is issued to Patrick Kanyi Wamuyu alone in respect of the entire estate of his father, the late Nderito Ngenda Matteo (Deceased). 7. The new grant is confirmed in terms of paragraph 5 of the summons for confirmation dated 20.03.2017, and a certificate of confirmation be issued for the estate to be distributed to to the sole beneficiary, Patrick Kanyi Wamuyu, in the following manner: * 1. Nyeri /Emndaradha/Township 12(L) - Patrick Kanyi Wamuyu 2. Tetu/Muthaini/1639 - Patrick Kanyi Wamuyu 3. Nyeri Municipality/Block 1/215 - Patrick Kanyi Wamuyu 8. Transmission within 6 months. Mention before the Deputy Registrar on 03.02.2027. 9. Each party to bear their own costs. **DELIVERED, DATED** and **SIGNED** at **NYERI** this **30th** day of **July** the year of our Lord **Two Thousand and Twenty-Six**. Judgment delivered through Microsoft Teams Online Platform. **KIZITO MAGARE** **JUDGE** **In the presence of; -** Ms. Mwangi for the Protestor/Petitioner Mr. Wabandi for Fr. John Baptista, Objector Mr. Gathiga Mwangi for Matthew Ngenda Court Assistant – Timothy