https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8145

In re Estate of Gaturu alias George Kimani Gaturu (Deceased) (Succession Cause 3012 of 2012) [2026] KEHC 8145 (KLR) (Family) (11 June 2026) (Judgment) Neutral citation: [2026] KEHC 8145 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Law Courts) Family Succession Cause 3012 of 2012 HK Chemitei, J June 11, 2026 IN THE MATTER OF THE ESTATE OF KIMANI GATURU ALIAS GEORGE KIMANI GATURU (DECEASED) Between James Wamwenja Kimani Protestor and Lucy Wataro Mwangi Petitioner Judgment 1.This judgement relates to the affidavit of protest dated 18th July, 2022 filed by the Applicant, James Wamwenja Kimani and the same supported by his further affidavit sworn on 16th June, 2025 and witness statement dated 24th April, 2023. 2.When the matter came up for directions the Court ordered that it be heard by way of oral evidence. The Objector and the Applicant testified and none called any witnesses. 3.In his affidavit of protest, he stated that he is a beneficiary of the deceased’s estate and was therefore entitled to participate in decisions concerning its administration and distribution. He acknowledged certain introductory averments in the Petitioner’s supporting affidavit but challenged the proposed mode of distribution. He contended that the Petitioner deliberately excluded him and his brother, Amos Ndung’u Kimani, from consultations and discussions relating to the distribution of the estate. He maintained that the Petitioner proceeded with the confirmation application without obtaining the consent of all beneficiaries and Administrators, thereby denying them an opportunity to participate in the process. According to him, this rendered the proposed distribution irregular and procedurally defective. He further pointed out that a Grant of Letters of Administration Intestate had been issued on 19th December, 2019 appointing both Lucy Wataro Mwangi and Amos Ndung’u Kimani as Administrators of the estate. He accused the Petitioner of acting unilaterally, undertaking administrative responsibilities without involving her co-administrator and seeking to distribute the estate without the concurrence of all beneficiaries. He argued that the consent filed alongside the summons for confirmation did not bear the signatures of all beneficiaries and therefore could not validly support confirmation of the grant. He also challenged the accuracy of the list of estate assets. He asserted that the Petitioner had made significant errors in identifying estate property and specifically objected to the inclusion of land parcel Tigoni/Karambani/81, claiming that the deceased had disposed off the property during his lifetime and that it no longer formed part of the estate. He further alleged that other assets belonging to the deceased had been omitted from the schedule of assets and indicated his intention to produce documentary evidence in support of those assertions. He emphasized that the role of a co-administrator is as important as that of any other administrator and argued that all Administrators and beneficiaries should be actively involved in determining the mode of distribution. Consequently, he urged the Court to direct that all beneficiaries participate in discussions and decisions concerning the estate and sought the removal of the Petitioner as an Administrator on grounds that she had demonstrated incompetence and had failed to properly discharge her duties. He maintained that his proposals would not prejudice any beneficiary and asked the Court to reject the proposed confirmation of grant. 4.In his witness statement dated 24th April, 2023, James Wamwenja Kimani reiterated that he is a son of the deceased and a beneficiary of the estate, while the Petitioner, Lucy Wataro Mwangi, is his sister. He confirmed that Lucy Wataro Mwangi and Amos Ndung’u Kimani were appointed Administrators of the estate pursuant to a grant issued on 19th December, 2019. He explained that after the Petitioner filed the Summons for Confirmation of Grant in March 2022, he lodged a protest challenging the proposed distribution. He stated that both he and Amos Ndung’u Kimani had made numerous attempts to convene family meetings to discuss the distribution of the estate, but these efforts were frustrated by the Petitioner. He accused her of assuming sole control over the administration process and attempting to distribute the estate without consulting the beneficiaries or obtaining their consent. He maintained that the consent filed in support of the proposed distribution lacked the signatures of all beneficiaries and Administrators and was therefore improper. He further testified that the Petitioner had committed substantial errors in identifying the estate assets. He asserted that some of the properties listed did not form part of the estate and specifically challenged the inclusion of Tigoni/Karambani/81, contending that the deceased did not own the property and that its ownership status remained uncertain. He also stated that several estate properties had been omitted from the schedule of assets. According to him, the participation of all Administrators was essential in the administration process and all beneficiaries should be involved in determining how the estate should be distributed. He therefore prayed that the Court direct that the rightful estate assets be identified and distributed lawfully among the beneficiaries. 5.In his further affidavit sworn on 16th June, 2026, James Wamwenja Kimani supplemented his earlier protest and witness statement and presented his own proposal regarding the distribution of the estate. He began by proposing that Amos George Kimani be removed as a co-administrator and be replaced by him. He explained that Amos’ health had deteriorated significantly, rendering him incapable of effectively performing the duties of an administrator. He maintained that the substitution would not prejudice any beneficiary and asserted that he possessed sufficient knowledge of the estate assets to competently undertake the responsibilities of administration. He further averred that prior to his death, the deceased had distributed certain properties during his lifetime. He claimed that the deceased had gifted Githunguri/Githiga/2105 to him absolutely and had similarly allocated Githunguri/ Githiga/293 and Githunguri/Githiga/252 to his elder brother, Amos George Kimani. He explained that these allocations were made because he and Amos were the only sons remaining at the family homestead after their sisters had married and moved away. He further stated that the latter two parcels contained the family homestead and that, having been gifted inter vivos, the three properties should not be regarded as forming part of the deceased’s estate available for distribution. He also addressed the circumstances of their sister, Esther Wanjiru Kimani, stating that she had separated from her husband and returned to the family home with her two children. In view of her circumstances and because she was the only sister without a matrimonial home, he proposed that she be allocated the entirety of parcel Tigoni/Karambani/81. With regard to a property situated in Subukia measuring approximately four acres, the Protestor proposed that it be shared equally among Joyce Wangari Njenga, the estate of the late Alice Njeri Njoroge, Lucy Wataro Mwangi and Hannah Wanjiku Njoroge. He further proposed that all shares belonging to the deceased and the proceeds held in K-Unity Finance Co-operative account number 0864-299-01 be distributed equally among the same four beneficiaries. He stated that his proposals were intended to achieve fairness and justice among all beneficiaries while considering the deceased’s lifetime wishes and the prevailing family circumstances. 6.In opposition to the affidavit of protest, Lucy Wataro Mwangi has filed a further affidavit sworn on 11th October, 2022 and witness statement dated 16th March, 2023. 7.In her affidavit sworn on 11th October, 2022, Lucy Wataro Mwangi, one of the Administrators of the estate of the late Kimani Gaturu alias George Kimani Gaturu, responds to the protest lodged by her brother, James Wamwenja Kimani. She maintained that she had consistently sought to involve both the Protestor and her co-administrator, Amos Ndung’u Kimani, in discussions regarding the distribution of the estate, but they failed or refused to participate in the consultation process. She stated that after the grant was issued on 19th December, 2019, her advocates wrote to Amos through his advocates inviting him to propose a date and venue for a family meeting to discuss the distribution of the estate. When no response was received, a further invitation was sent in September 2020, but neither Amos nor the Protestor responded or attended any consultations. According to her, the refusal by the Protestor and her co-administrator to participate in family consultations left her with no alternative but to file the summons for confirmation of grant without their involvement. She stated that despite their absence, she obtained the consent of her three surviving sisters and the personal representative of their late sister, Alice Njeri Kimani, regarding the proposed confirmation and mode of distribution. She denied allegations that she had acted unilaterally, subdivided the estate or failed in her duties as administrator, asserting that she had at all times acted in good faith and in the best interests of all beneficiaries. She further rejected the Protestor’s claims that the list of estate assets was inaccurate. She maintained that there were no errors in the schedule of assets contained in her application for confirmation of grant. In particular, she disputed the contention that parcel Tigoni/Karambani/81 did not belong to the deceased. She exhibited an official search dated 23rd August, 2022 showing that the property remained registered in the name of the deceased and therefore formed part of the estate available for distribution. She added that she was unaware of any estate properties omitted from the list and challenged the Protestor to provide particulars of any such assets if they existed. She further alleged that the Protestor had taken possession of the deceased’s title deeds and share certificates after the deceased’s death and had refused to make them available to her and the other beneficiaries. She expressed concern that he may have interfered with or disposed of certain estate assets, including shares held in Githiga Muiri Company Limited, Githiga Corner Provision House (Wazee Hukumbuka) and Gatatha Farmers Company Limited. She accused him of being uncooperative, unwilling to engage with the family on matters concerning the estate and intent on denying his sisters their rightful inheritance. She also recalled that the Protestor had previously sought to remove Amos Ndung’u Kimani as an administrator on grounds of ill health, but that attempt had been rejected by the Court. She viewed the current protest as another effort to delay and frustrate the long-overdue distribution of the estate. Consequently, she urged the Court to dismiss the protest, confirm the grant in accordance with her application, and allow the estate to be distributed without further delay. 8.In her witness statement dated 16th March, 2023, Lucy Wataro Mwangi stated that she is a daughter of the deceased and a joint administrator of his estate together with her brother, Amos Ndung’u Kimani. She explained that following a lengthy and contentious succession dispute spanning more than nine years, the High Court appointed her and Amos as joint Administrators of the estate in February 2019. The appointment arose after competing petitions and objections filed by different family members, which culminated in the consolidation of two succession causes. She testified that one of the major concerns prompting her and her sisters to object to their brothers’ petition was their fear that the daughters of the deceased would be excluded from inheriting the estate. She explained that there had been previous indications that her brothers believed daughters should not benefit from the estate. Consequently, she and her sisters proposed a system of administration that would ensure representation of both sons and daughters. The Court accepted that proposal and appointed her and Amos as co-Administrators. Lucy stated that despite the Court’s decision, the Protestor, James Wamwenja Kimani, continued efforts to exclude her and her sisters from participating in the administration and distribution of the estate. She alleged that he had repeatedly threatened to disinherit them, had occasionally threatened her personally, and had sought to frustrate any process that would result in her sisters receiving their rightful inheritance. She further accused him of interfering with estate assets and threatening to evict their sister, Esther Wanjiru Kimani, from family properties situated on Githunguri/Githiga/293 and Githunguri/ Githiga/252, where Esther had been residing before the deceased’s death. She also asserted that the Protestor had retained possession of the deceased’s title deeds and share certificates and had declined to share them with the other beneficiaries. She expressed concern that he may have dealt with some of the shares without the knowledge or consent of the family. In her view, his continued dissatisfaction with the appointment of Amos as co-administrator had motivated him to make repeated attempts to remove Amos and assume control of the administration of the estate. She noted that an earlier application seeking to replace Amos on grounds of illness had been dismissed by the Court. She further testified that after obtaining the grant, she instructed her advocates to invite both Amos and the Protestor to family meetings aimed at discussing and agreeing on a mode of distribution. Letters were sent in March and September 2020, but neither attended or participated in the consultations. As a result of their non-cooperation, she proceeded to file the summons for confirmation of grant. She explained that she had engaged a surveyor to assist in developing a practical mode of distribution and had obtained the consent of her three surviving sisters and the personal representative of their deceased sister. Despite her efforts, she was unable to secure the participation or consent of the Protestor and Amos. She denied all allegations that she had sidelined her co-administrator, unlawfully subdivided the estate, or omitted assets from the schedule of estate property. She maintained that the list of assets contained in the application for confirmation was accurate to the best of her knowledge. She specifically affirmed that parcel Tigoni/Karambani/81 belonged to the deceased and formed part of the estate, relying on an official land search. She concluded by asserting that if any estate property had been omitted, the Protestor should identify it, since he was the person in possession of the deceased’s title documents. 9.The Petitioner has filed written submissions dated 12th June, 2025. She urged the Court to find the protest without merit, affirm that she had acted properly in her capacity as administrator and confirm the grant in accordance with her proposed mode of distribution. The Petitioner recounted the history of the succession dispute, stating that the deceased died on 25th December, 2006 and was survived by his widow, two sons and five daughters. Since the widow did not petition for administration of the estate, the daughters initiated citation proceedings to compel those with prior entitlement to either apply for or renounce the grant. Thereafter, she petitioned for letters of administration in 2014. She later discovered that her brothers, together with their mother, had already filed a separate succession cause which excluded her and her sisters from participation in the administration of the estate. The two succession causes were eventually consolidated. Following the issuance of a grant to her and Amos Ndung’u Kimani in December 2019, she filed summons for confirmation of grant in March 2022, proposing a mode of distribution. The Protestor opposed the application and filed an affidavit of protest. Although the matter was referred to mediation and the parties agreed on the list of beneficiaries and estate assets, they failed to agree on how the estate should be distributed. On the issue of the protest itself, the Petitioner submitted that the allegations that she excluded the Protestor and the co-administrator from consultations were unfounded. She pointed to correspondence sent by her advocates in March and September 2020 inviting the Protestor and co-administrator to participate in family discussions concerning distribution of the estate. According to her, neither invitation was answered and both individuals declined to engage in the process. She therefore contended that the protest was merely the latest attempt in a long-running effort by the Protestor to frustrate and delay the administration and eventual distribution of the estate. The Petitioner further argued that the Protestor had consistently demonstrated hostility towards the inclusion of daughters in the inheritance process. She maintained that he had fostered an atmosphere of fear among his sisters by insisting that daughters were not entitled to inherit from the estate. She accused him of withholding title deeds and share certificates belonging to the estate, threatening to evict one of their sisters from property she occupied before the deceased’s death, attempting unsuccessfully to replace the co-administrator on exaggerated claims of incapacity, and generally interfering with estate affairs to the detriment of other beneficiaries. In her view, these actions showed a deliberate intention to obstruct the settlement of the estate and deny the daughters their lawful inheritance. Relying on recent judicial decisions, the Petitioner submitted that a beneficiary cannot defeat succession proceedings merely by refusing to cooperate with the administrator. She emphasized that despite the lack of cooperation from her brothers, she had included all beneficiaries in her proposed distribution and had treated the Protestor and co-administrator as equal beneficiaries. She argued that her actions demonstrated fairness and compliance with the law and that the protest lacked any legitimate basis. Regarding the Protestor’s proposed mode of distribution, the Petitioner argued that it was unreasonable because it was founded on discrimination against daughters. She noted that the Protestor had repeatedly maintained that daughters were not entitled to inherit from their father’s estate and had not advanced any lawful or equitable proposal for distribution. She relied on Section 38 of the Law of Succession Act and several authorities affirming that sons and daughters are entitled to inherit equally, regardless of gender or marital status. She submitted that any mode of distribution that discriminated against daughters was contrary to the Constitution and the Law of Succession Act and therefore could not be sanctioned by the Court. The Petitioner contended that her own proposal was reasonable, lawful and inclusive. She argued that as an administrator she had a statutory duty to distribute the estate according to the beneficial interests of all beneficiaries. Her proposed distribution reflected that duty by providing for all surviving children of the deceased equally and without discrimination. She emphasized that even in the absence of consent from the Protestor and the co-administrator, she had nevertheless safeguarded their interests and proposed that they receive equal shares alongside their sisters. In her view, her proposal represented the fairest and most practical means of concluding a dispute that had persisted for more than a decade. The Petitioner further submitted that the prolonged nature of the dispute demonstrated the need for the Court to intervene decisively. She warned that the Protestor’s refusal to cooperate would continue to delay the administration of the estate indefinitely if the Court did not exercise its authority to determine the matter. Citing appellate authority, she argued that while parties are encouraged to agree on a mode of distribution, where consensus cannot be reached the Court must apply the provisions of the Law of Succession Act and distribute the estate according to the law. She therefore invited the Court to either confirm the grant in accordance with her proposed mode of distribution or, in the alternative, distribute the estate directly in accordance with the statutory provisions governing intestate succession. In conclusion, the Petitioner maintained that she had discharged her duties faithfully and transparently as administrator, that the protest was intended only to frustrate the administration of the estate and that there was no lawful basis for denying the daughters of the deceased their equal entitlement to inherit. She therefore urged the Court to dismiss the protest with costs and confirm the grant so that the estate could finally be distributed and the long-running succession dispute ended. Overview Of The Viva Voce Proceedings Before Hon. Judge Chemitei On 26Th January, 2026: 10.Vide directions issued on 9th October, 2025, the parties were referred to viva voce hearing so as to enable the Court obtain clarity on the mode of the distribution of the deceased’s estate amongst the beneficiaries. 11.The matter proceeded by way of oral testimony on the disputed mode of distribution of the deceased’s estate. The principal disagreement concerned several parcels of land, including parcels numbered 2105, 2106, 252, 253, 470 and 81, and whether distribution should follow the deceased’s lifetime wishes or be undertaken equally among all beneficiaries. 12.James Wamwenja Kimani testified that during his lifetime, the deceased had personally allocated portions of his land to various family members and had shown them the specific parcels intended for each beneficiary. 13.According to him, the deceased had physically pointed out the land on the ground and indicated where each child was to settle. He maintained that these allocations reflected the deceased’s wishes and should therefore be respected by the Court. He further stated that some beneficiaries had occupied and developed the parcels assigned to them for many years and had built their homes there in reliance on the deceased’s directions. 14.He explained that parcel number 81 had been allocated by the deceased to one of his sons, who subsequently established his home there. He asserted that the deceased had similarly earmarked other parcels, including parcels 252 and 253, for specific beneficiaries. 15.In his view, these allocations were well known within the family and had been accepted by those who were present when the deceased made them. He therefore urged the Court to uphold the deceased’s wishes and maintain the existing occupation patterns. 16.During cross-examination, he acknowledged that some of the parcels had not yet been formally subdivided and that title documents remained in the deceased’s name. Nevertheless, he insisted that the deceased had clearly communicated his intentions before his death and that the beneficiaries had acted on those directions by taking possession and developing the land. He further stated that some beneficiaries had occupied their respective portions for decades without objection. 17.Lucy Wataro Mwangi’s position advanced in the testimony was that all beneficiaries of the estate were entitled to equal treatment and that the estate should be distributed fairly among all surviving children of the deceased. It was contended that some beneficiaries had received larger portions than others and that reliance on alleged oral allocations by the deceased would perpetuate inequality. Those supporting equal distribution argued that any land remaining in the deceased’s name formed part of the estate and should be shared in accordance with the Law of Succession Act. 18.The evidence further revealed disagreement concerning income-generating assets and dividends derived from estate property. Questions arose as to who had been collecting such proceeds after the deceased’s death and whether the income had been shared with all beneficiaries. Some witnesses expressed the view that any income generated from estate assets should be accounted for and distributed equitably among all beneficiaries pending final distribution of the estate. 19.Overall, the viva voce hearing exposed a fundamental conflict between two competing approaches to distribution. One group of beneficiaries urged the Court to respect the deceased’s lifetime allocations and preserve the occupation and developments already established on the various parcels. The other group advocated for equal distribution among all beneficiaries, arguing that the estate should be administered strictly in accordance with the provisions of the Law of Succession Act and constitutional principles of equality and non-discrimination. Submissions 20.The Petitioner has filed written submissions dated 12th June, 2025. She urged the Court to find the protest without merit, affirm that she had acted properly in her capacity as administrator and confirm the grant in accordance with her proposed mode of distribution. 21.The Petitioner recounted the history of the succession dispute, stating that the deceased died on 25th December, 2006 and was survived by his widow, two sons and five daughters. Since the widow did not petition for administration of the estate, the daughters-initiated citation proceedings to compel those with prior entitlement to either apply for or renounce the grant. Thereafter, she petitioned for letters of administration in 2014. 22.She later discovered that her brothers, together with their mother, had already filed a separate succession cause which excluded her and her sisters from participation in the administration of the estate. The two succession causes were eventually consolidated. 23.Following the issuance of a grant to her and Amos Ndung’u Kimani in December 2019, she filed summons for confirmation of grant in March 2022, proposing a mode of distribution. The Protestor opposed the application and filed an affidavit of protest. 24.Although the matter was referred to mediation and the parties agreed on the list of beneficiaries and estate assets, they failed to agree on how the estate should be distributed. 25.On the issue of the protest itself, the Petitioner submitted that the allegations that she excluded the Protestor and the co-administrator from consultations were unfounded. She pointed to correspondence sent by her advocates in March and September 2020 inviting the Protestor and co-administrator to participate in family discussions concerning distribution of the estate. 26.According to her, neither invitation was answered and both individuals declined to engage in the process. She therefore contended that the protest was merely the latest attempt in a long-running effort by the Protestor to frustrate and delay the administration and eventual distribution of the estate. 27.The Petitioner further argued that the Protestor had consistently demonstrated hostility towards the inclusion of daughters in the inheritance process. She maintained that he had fostered an atmosphere of fear among his sisters by insisting that daughters were not entitled to inherit from the estate. She accused him of withholding title deeds and share certificates belonging to the estate, threatening to evict one of their sisters from property she occupied before the deceased’s death, attempting unsuccessfully to replace the co-administrator on exaggerated claims of incapacity, and generally interfering with estate affairs to the detriment of other beneficiaries. 28.In her view, these actions showed a deliberate intention to obstruct the settlement of the estate and deny the daughters their lawful inheritance. 29.Relying on recent judicial decisions, the Petitioner submitted that a beneficiary cannot defeat succession proceedings merely by refusing to cooperate with the administrator. She emphasized that despite the lack of cooperation from her brothers, she had included all beneficiaries in her proposed distribution and had treated the Protestor and co-administrator as equal beneficiaries. She argued that her actions demonstrated fairness and compliance with the law and that the protest lacked any legitimate basis. 30.Regarding the Protestor’s proposed mode of distribution, the Petitioner argued that it was unreasonable because it was founded on discrimination against daughters. She noted that the Protestor had repeatedly maintained that daughters were not entitled to inherit from their father’s estate and had not advanced any lawful or equitable proposal for distribution. She relied on Section 38 of the Law of Succession Act and several authorities affirming that sons and daughters are entitled to inherit equally, regardless of gender or marital status. 31.She submitted that any mode of distribution that discriminated against daughters was contrary to the Constitution and the Law of Succession Act and therefore could not be sanctioned by the Court. The Petitioner contended that her own proposal was reasonable, lawful and inclusive. She argued that as an administrator she had a statutory duty to distribute the estate according to the beneficial interests of all beneficiaries. 32.Her proposed distribution reflected that duty by providing for all surviving children of the deceased equally and without discrimination. She emphasized that even in the absence of consent from the Protestor and the co-administrator, she had nevertheless safeguarded their interests and proposed that they receive equal shares alongside their sisters. 33.In her view, her proposal represented the fairest and most practical means of concluding a dispute that had persisted for more than a decade. The Petitioner further submitted that the prolonged nature of the dispute demonstrated the need for the Court to intervene decisively. She warned that the Protestor’s refusal to cooperate would continue to delay the administration of the estate indefinitely if the Court did not exercise its authority to determine the matter. 34.Citing appellate authority, she argued that while parties are encouraged to agree on a mode of distribution, where consensus cannot be reached the Court must apply the provisions of the Law of Succession Act and distribute the estate according to the law. 35.She therefore invited the Court to either confirm the grant in accordance with her proposed mode of distribution or, in the alternative, distribute the estate directly in accordance with the statutory provisions governing intestate succession. In conclusion, the Petitioner maintained that she had discharged her duties faithfully and transparently as administrator, that the protest was intended only to frustrate the administration of the estate and that there was no lawful basis for denying the daughters of the deceased their equal entitlement to inherit. 36.She therefore urged the Court to dismiss the protest with costs and confirm the grant so that the estate could finally be distributed and the long-running succession dispute ended. Analysis And Determination 37.The issue before the Court is the determination of the affidavit of protest dated 18th July, 2022 against the summons for confirmation of grant dated 10th March, 2022. The dispute revolves around three principal questions: whether the Petitioner excluded beneficiaries and co-administrator Amos Ndung’u Kimani from the administration process; whether certain properties, particularly Githunguri/Githiga/2105, Githunguri/Githiga/ 252, Githunguri/Githiga/253 and Tigoni/Karambani/81, were gifted inter vivos by the deceased and therefore fall outside the estate; and whether the estate should be distributed according to the alleged wishes of the deceased or equally among all his children. 38.In Re Estate Of The Late Gideon Manthi Nzioka (deceased) [2015] eKLR the Court observed that, “… In law, gifts are of two types. There are gifts made between living persons (gifts intervivos) and gifts made in contemplation of death (gifts mortis causa). Section 31 of the Law of Succession Act provides as follows with respect to gifts made in contemplation of death: “For gifts inter vivos, the requirements of law are that the said gift may be granted by deed, an instrument in writing or by delivery, by way of declaration of trust by the donor, or by way of presumption of gifts of land must be by way of registered transfer, [emphasis mine] or if the land is not registered it must be in writing. Gifts intervivos must be complete for the same to be valid.” 39.On incomplete gifts, the Halsbury’s Laws of England state that, “… Where a gift rests merely in promise, whether written or oral, it is incomplete and imperfect, and the Court will not compel the intending donor, or those claiming under him, to complete and perfect it, except in circumstances where the donor’s subsequent conduct gives the done a right to enforce the promise. A promise made by the deed is however, binding even though it is made without consideration. If a gift is to be valid the donor must have done everything which according to the nature of the property comprised in the gift, was necessary to be done by him in order to transfer the property and which it was in his power to do.” 40.In Cain V Moon [1896] 2QB 283 Lord Russel held that, “… for effectual donation mortis causa three things must combine. First, the gift or donation must have been made in contemplation, though not necessarily in expectation, of death, secondly, there must have been delivery to the done of the subject matter of the gift, and thirdly, the gift must be made under such circumstances as slew that the thing is to revere to the donor in case he should recover.” Whether the Petitioner Excluded the Protestor and Co-administrator: 41.The Protestor's primary complaint is that the Petitioner acted unilaterally and failed to involve him and Amos Ndung’u Kimani in the administration and proposed distribution of the estate. However, the evidence placed before the Court demonstrates that invitations were extended to both the Protestor and Amos through advocates in March 2020 and September 2020 to attend meetings aimed at discussing distribution of the estate. 42.The Petitioner exhibited correspondence supporting those assertions, while the Protestor did not place before the Court any documentary evidence demonstrating that he responded to those invitations or that the Petitioner actively prevented consultation. 43.The Court is mindful that confirmation proceedings need not fail merely because unanimity among beneficiaries is unattainable. Rule 40 of the Probate and Administration Rules contemplates situations where beneficiaries disagree, in which case the Court hears the protest and determines the appropriate mode of distribution. A beneficiary cannot indefinitely delay confirmation by withholding consent where the Court is otherwise satisfied that all interested parties have been notified and heard. 44.Accordingly, I hold that the allegation that the Petitioner deliberately excluded the Protestor and Amos from participation has not been proved on a balance of probabilities. Whether Amos Ndung’u Kimani Should Be Removed as Co-administrator: 45.The Protestor seeks the removal of Amos Ndung’u Kimani on account of ill health and proposes that he be substituted with himself. However, the record reveals that a similar application had previously been made and dismissed by the Court. No fresh medical evidence demonstrating incapacity was tendered during these proceedings. Mere allegations that an administrator is unwell are insufficient to warrant removal under Section 76 of the Law of Succession Act or the Court's inherent jurisdiction. 46.In the absence of cogent evidence showing inability to discharge his duties, the request for removal of Amos Ndung’u Kimani fails. Whether the Alleged Gifts Inter Vivos Were Proved: 47.The Protestor's case substantially rests on the assertion that the deceased distributed parcels Githunguri/Githiga/2105, Githunguri/Githiga/252 and Githunguri/Githiga/253 during his lifetime and that these properties should therefore not form part of the estate. The viva voce evidence indicated that the deceased allegedly showed beneficiaries their respective portions and that some beneficiaries occupied and developed the parcels for many years. 48.The law regarding gifts inter vivos is settled. For a gift of land to be valid, there must ordinarily be a completed transfer during the donor's lifetime. A gift of land is only perfected through transfer and registration or through other legally recognized means demonstrating completion of the gift. Mere intention, oral declarations or informal family arrangements are generally insufficient where the donor retained legal ownership until death. 49.Although the Protestor and his witnesses testified that the deceased allocated specific parcels to particular beneficiaries, it was also admitted that several of the properties remained registered in the deceased's name and had not been formally transferred before his death. No transfer instruments, mutation forms, registered conveyances, declarations of trust or other documentary evidence were produced to demonstrate that the deceased completed the alleged gifts. 50.Consequently, while the Court accepts that the deceased may have expressed wishes regarding occupation and future ownership of the properties, those wishes did not mature into legally enforceable gifts inter vivos. The parcels therefore remain part of the free property of the deceased available for distribution under the Law of Succession Act. Whether Parcel Tigoni/Karambani/81 Forms Part of the Estate: 51.The Protestor contended that parcel Tigoni/Karambani/81 did not belong to the deceased. However, the Petitioner produced an official search dated 23rd August, 2022 showing that the property remained registered in the deceased's name. The Protestor did not produce any contrary title document, transfer instrument or official search disproving that evidence. 52.I, therefore, find that parcel Tigoni/Karambani/81 forms part of the deceased's estate and is available for distribution. Whether Distribution Should Be Equal Among the Children 53.The deceased died intestate. The parties agree that the beneficiaries are the deceased's surviving children and the estate of the deceased daughter, Alice Njeri Njoroge. The principal distinction between the parties is that the Protestor's proposal largely preserves the alleged lifetime allocations to the two sons while allocating comparatively limited assets to the daughters. The Petitioner advocates equal treatment of all children. 54.Section 38 of the Law of Succession Act provides that where an intestate leaves surviving children but no spouse, the net intestate estate shall devolve equally among the surviving children. Further, Articles 27 and 60 of the Constitution prohibit discrimination on the basis of gender or marital status. Modern succession jurisprudence has consistently affirmed that daughters and sons are entitled to inherit equally from their parents' estates. 55.I am persuaded by the Petitioner’s argument that any distribution which effectively excludes or substantially disadvantages daughters merely because they are married would be unconstitutional and contrary to the Law of Succession Act. 56.I also note that the parties vide a mediation exercise had agreed on 25th July 2023 on sharing out part of the estate and the same was adopted on 12th October 2023. 57.In light of the foregoing, this Court makes the following determination:a)The affidavit of protest dated 18th July, 2022 lacks merit and is hereby dismissed.b)The application seeking the removal and substitution of Amos Ndung’u Kimani as co-administrator is declined.c)The Protestor failed to prove that parcels Githunguri/Githiga/2105, Githunguri/Githiga/252 and Githunguri/Githiga/293 were valid gifts inter vivos that had been completed during the deceased's lifetime.d)Land parcel number Tigoni/Karambani/81 forms part of the estate of the deceased.e)All assets remaining registered in the deceased's name at the time of death constitute estate property available for distribution.f)The estate shall be distributed in accordance with Section 38 of the Law of Succession Act, considering all surviving children of the deceased and the estate of any deceased child, without discrimination based on gender or marital status.g)The summons for confirmation of grant dated 10th March, 2022 is allowed and the grant shall be confirmed on a mode of distribution that accords equal entitlement to all beneficiaries, subject to any necessary adjustments reflecting proven occupation or developments where the parties can agree.h)The confirmation of the grant shall take into consideration the consent adopting the mediation results adopted as an order of the Court on 12th October 2023.i.Each party to bear its own costs. DATED SIGNED AND DELIVERED AT NAIROBI VIA VIDEO LINK THIS 11TH DAY OF JUNE 2026.H K CHEMITEIJUDGE, FCIArb.