https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10404

 **REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT MAKUENI** **P & A CASE NO.E009 OF 2021** **IN THE MATTER OF THE ESTATE OF THE LATE** **JULIUS MUTISO MULILI – (DECEASED)** RICHARD KIEMA MUTISO...................................................1ST PETITIONER FREDERICK MUSYOKI MUTISO..........................................2ND PETITIONER VERSUS JOSHUA MANTHI MUTISO...................................................1ST PROTESTOR ROSE NDIA MUTISO............................................................2ND PROTESTOR **JUDGMENT** 1. Julius Mutiso Mulili died on 24th March, 1998. Machakos HC Succession Cause No.714/2009 (in the matter of the Estate of Julius Mutiso Mulili) was filed. By a letter dated 13th August, 2008 the chief Kivani Location wrote a letter listing the dependents – reproduced in the form P & A 5 filed on 8th September, 2009. 1. The deceased died intestate and was survived by the following:- 2. *Esther Muthei Mutiso ........Wife* 3. *Joshua Manthi Mutiso .........son* 4. *Rose Ndia Mutiso ..................Daughter (married)* 5. *Christine Ndete Mutiso .........Daughter (married)* 6. *Richard Kiema Mutiso...........Son.* 7. *Gladys Nzola Mutiso...............Daughter (married)* 8. *Fredrick Musyoki Mutiso........Son.* 9. *Catherine Wayua Mutiso.........Daughter (married)* 10. *Judith Kasiva Mutiso................Daughter (not married)* 11. *Cornelius Kyalo Mutiso ...........Grandson.* 12. *Muthini Mutiso.........................Grandson.* and his estate was listed as **Kithembe/Kivani/271.** 1. The matter was transferred to Makueni vide letter dated 26th July, 2021 and it acquired the number P&A 9/2021. 2. On 19th September, 2024 a grant was issued to Richard Kiema Mutiso& Fredrick Musyoki Mutiso to be administrators. 3. A Summons for confirmation of Grant was filed dated 9th October, 2024. An Affidavit in Protest was filed on 23rd October, 2024. Directions were taken by counsel Mr Hassan for the petitioners – Mr. Musyoka for protesters to proceed by way of viva voce evidence. 4. In the summons for confirmation of grant dated 9th October, 2024 the administrators urged the court to issue a certificate of confirmation of grant in accordance with the distribution set out therein and supported by what they refer to as a family agreement written in Kikamba and translated into English dated 2nd January, 1998. It states: - *“SUBDIVISION OF MY PARCEL OF LAND KIVANI ADJUDICATION 271.* *I, Julius Mutiso Mulili, today I have called my children who were present so that I can subdivide my parcel of land because am not feeling well and I am ailing and incase of death, it might arise problem.* *So first is my three (3) sons who are MANTHI MUTISO, KIEMA MUTISO and MUNYOKI MUTISO and their mother ESTHER MUTHEI MUTISO who is my wife.* *That I have not been forced by anyone it is my wish my sons have subdivided the parcel of land as follows:-* 1. *Manthi Mutiso have given him a parcel of land from my homestead in a place called NDIU and borders with KIEMA MUTISO from the way of river for Ndeti to Kithayoni and surrounds to border with Musyoki Mutiso village of Tuvilani in Mango tree.* 2. *Kieme Mutiso to surround to border with Masingu and to go up with the river for Ruth side and border with MUSYOKI MUVEA and Musyoki from the gate and skip the road that enters the homestead to go down and border with Manthi Tuvilani village Kalembeni and border with Mumo in the stream and go up to the road that goes to Mavia Meu and surround the hill and border with Maisila,..upto the stream in Ruth side.* 3. *My daughter MUMO MUTISO who has children I have given her Waiu village downwards up to Kithayoni and border with Musyoki in the valley and the rest of the daughters. I have given them Kitulu village where I order with Ndunge upwards to the road up to Kithayoni.”* 4. The same indicates that the following were present:- 5. *Julius Mutiso Mulili.* 6. *Esther Muthei Mutiso.* 7. *Joshua Manthi Mutiso.* 8. *Richard Kiema Mutiso.* 9. *Fredrick Musyoki Mutiso.* 10. *Monicah Mumo Mutiso.* ***Clan elders present:-*** 1. *Japheth N. Muumbi.* 2. *Mutuku Ndwiko.* 3. *John K. Ngelema* 4. The beneficiaries to the estate were listed at paragraph 4 of the summons for confirmation of grant viz. 5. *Richard Kiema Mutiso* 6. *Rose Ndia Mutiso* 7. *Christine Ndete Mutiso* 8. *Gladys Nzula Mutiso* 9. *Catherine Wayua Mutiso* 10. *Judith Kasiva Mutiso.* 11. The summons for confirmation of grant provoked the Affidavit in Protest sworn by Joshua Manthi Mutiso and Catherine Wayua Mutiso. They swore that affidavit with the authority (*attached*) of the other protesters. 12. It is denied that their father made such an agreement, and in particular, they deny being present or signing the same: In addition it is deponed; *“THAT by the time of the alleged family agreement our father had sold parts of the subjects land to Paul Nzan’gala, Peter Ivulila, Ndunge Kinyenze, Kisilu, Peter Mutwiwa, Nicholus Muasa, Muange Maundu, Mbole, Mutava Musyimi, Richard Katoni and Justus Mwau Nzivo and they are not mentioned or provided for in the alleged family agreement.”* * *That some of the beneficiaries i.e. Esther Muthei Mutiso (or mother), Rose Ndia Mutiso, Christine Ndete Mutiso, Gladys Nzula Mutiso, Catherine Wayua Mutiso, Judith Mwau Nzivo and they are not mentioned or provided for in the alleged family agreement.* * *That our mother together with Fredrick Musyoki Mutiso sold part of the subject land to Muange maundu, NIcholus Muasa and Mathew Mweu after the demise of our father and none of the petitoners disclosed to us the contents of the alleged family agreement.* * *That our mother sold a portion of land in the year 2019 in order to clear her hospital bill.”* 1. It was further deponed that their mother in a meeting held on 11th April, 2014 – where all family members were present, save for Fredrick Musyoki Mutiso, their mother distributed the land – in a document written in Kikamba and translated to English, in the following manner:- *“Today 11/4/2014 I Esther Muthei Mutiso have shown my children i.e. 1. Musyoki Mutiso. 2. Kiema Mutiso 3. Manthi Mutiso where they should cultivate:-* * *Musyoki to cultivate the phase called kwa Malau* * *Kiema to cultivate the phase called kwa Tuvae* * *Kiema and Musyoki border each other from the road in the homestead and border is shown by the following trees: silky oak, ficus thonningii, broad-leaved croton, combretum molle, kiva, kithethe and follow the river. The river is on Kiema’s side.* * *Kyalo to cultivate on the phase of Tuvilani from the road, to start from the lower side of the entrance.* * *Manthi to continue to cultivate where he cultivates that is in the homestead.* * *Musyoki to harvest from the phase of kwa sevu and leave from the phase.*” 1. I heard the parties testify. OW1, OW2, OW3 were siblings of the petitioners. Their testimony was that their father never subdivided his property to his children. That the position was that those on the land could just use it, and cultivate the portions they had cultivated all laong . That their mother simply showed their brothers where to continue to cultivate but neither of their parents actually distributed the estate to their children. 2. OW4, was the organizing secretary of the deceased’s clan. He told the court that the deceased did not leave any will. 3. For the Petitioners, – PW1 – the 1st administrator told the court that his father had distributed the land into 5 parcels as per the agreement that he had produced dated 2nd January 1998. Shown the agreement said to have been done by the mother on 11th April, 2014, he told the court that by then his father was deceased, having already divided his land , and that is why he refused to attend the meeting. 4. His position is that the current push is for redistribution of the estate because the tarmac road is near the property. He said that their father had given a portion to the sisters and that all the time no one had touched the same. He also stated that his father had also given each of the buyers their portions before he made the agreement on distribution and that is why they were not mentioned . Asked whether he had made provision for his mother in his proposed mode of distribution, he could not show it. He simply stated that everyone knew his mother’s portion of their father’s land . He said in the agreement of 2nd January, 1998 his mother was mentioned 5. He was asked if his father sold portions of land, why he did not put it in the “agreement” his explanation was that because he had already sold it, he did not need to distribute it. 6. According to the 2nd administrator – their father distributed his land, and provided for every child. 1. On cross-examination the 2nd administrator could not explain where the copy of the agreement had been kept after his father had written it. After some questions he said their father had kept the agreement after it was written. He testified that when the tarmac road came to their land, the compensation money was paid to the family, that it was her, PW2 who collected the money. He said that the court should affirm the distribution by the father. 2. PW3, Senior chief Kivani location between 1988 to 2015 he said he was not present when the deceased shared the land. **Submissions** 1. Parties filed written submissions through their respective counsel. The objectors set out these issues for determination; 2. *Whether the deceased left a valid will.* 3. *Whether the alleged will was proved to the required legal standard.* 4. *Whether the deceased lawfully subdivided his land during his lifetime.* 5. *Whether the proposed mode of distribution is lawful.* Citing **Vijay Chandrakant Shah –vs- Public Trustee [2016]eKLR** it is submitted that a person propounding a will must prove its due execution and authenticity. It was submitted that the document presented did not comply with **Section 11** of the **Law of Succession Act** on the mandatory requirements for a will. 1. It is submitted that the petitioners did not call attesting witnesses though one was said to be alive. The court’s attention was drawn to the contradictions in the evidence of the 2 administrators with regard to the alleged will. The court was urged to reject the will and was referred to the **Estate of Wahome Njoki (deceased) [2018] eKLR for that proposition,** 2. That the petitioners failed to call crucial witnesses – the court was referred to **Bukenya & others –vs- Uganda [1972] EA 549**, and the **Estate of Gitau (deceased) [2020] eKLR** for the proposition that failure to call crucial witnesses fatally weakens the case of the party who ought to have called those witnesses. 3. That after the death of deceased – no one even came up with a will – and even when their mother – on 11th February, 2014 subdivided the land – they did not raise any issue. That the alleged will was an afterthought and only intended to disinherit the other beneficiaries. 4. That contrary to **Rono –vs- Rono & Another [2005] 1 KLR 538** the daughters were left out of the alleged distribution. It is conceded that there were purchasers– but they were not provided for. 5. It was submitted that the will was incomplete *See* the estate of **Thiong’o Njoroge (deceased) [2016] eKLR** *see* the estate of **Charles Muriuki Gathungu (deceased) [2020] eKLR.** The court was urged to find the alleged will to be invalid, and find that the deceased died intestate, and distribute the estate as per **Section 38 of the Law of Succession Act.** 6. It was submitted that the administrators had failed to discharge the burden of proving the validity of the alleged will. That the alleged will is riddled with inconsistencies, unproved signatures, exclusion of beneficiaries, and lack of corroborative evidence. That the estate was intestate and ought to be treated as such and distributed equally among all beneficiaries 7. The Protestors urged the court to grant the following orders**:** 8. *Reject the alleged will for want of validity and proof;* 9. *Dismiss the Administrators’ proposed mode of distribution;* 10. *Order equal distribution of the estate among all beneficiaries pursuant to Section 38 of the Law of Succession Act; and* 11. *Grant such further orders as the Court may deem just.* **For the Petitioners:** 1. It is submitted that protesters object to the distribution of 2nd January 1998 on the ground that it was a forgery/fraudulent. That this involved an accusation of criminal conduct, and the standard of proof required is higher than the ordinary civil standard of balance of probabilities, though not as high as the criminal standard of proof beyond reasonable doubt. That this principal was established in **Elizabeth Kamene Ndolo v George Matata Ndolo [1996] eKLR**, where the Court of Appeal held: *“We start by saying that it was the respondent who was alleging that the will was a forgery and the burden to prove that allegation lay squarely on him. Since the respondent was making a serious charge of forgery or fraud, the standard of proof required of him was obviously higher than the required in ordinary civil cases, namely proof upon a balance of probabilities, but the burden of proof on the respondent was certainly not one beyond a reasonable doubt as in criminal Cases.”* 1. It is submitted that it is not enough to allege forgery and fraud. The protesters were required to prove the same. 2. That on the alleged forgery and fraud they ought to have availed hand writing experts. The court was referred to **Asira –vs- R. [1986] KLR 227** and **Namalna –vs- R. [1978] KLR 11**. 3. The court was referred to Re-**Estate of Bernard Kimurei Chirchir [2025] KEHC 448 KLR** quoted in **Re Estate of Samuel Ngugi Mbugua (deceased) [2017] eKLR**. 4. It was submitted that the document dated 2nd January, 1998 was written in the life time of the deceased. 5. It was submitted that a will is the legal expression of a man’s wishes as to the disposition of his property after his death. That his wishes were already effected – that what his wife tried to do after he died amounted to intermeddling. 6. That on the issue of buyers – it was submitted that the deceased left out the part of the land he had sold. It is submitted that the issue of re-subdivision came up after the tarmac road came to their land raising the value of the land next to the landmark. 7. That there was a whole portion of land that was left for the girls which no one had used or was using that the daughter who was living on the land was given land by their father, and it is evident that she established her home there. 8. The petitioners urged the court to uphold the wishes of the deceased. The court was referred to; **Re Matheson (deceased) [1958] 1 ALL ER 202** at **204** wherethe court held:- *“As I have said, the primary function of the court is to keep faith with the dead. When a man nears his end and contemplates Christian burial, he may reasonably hope that his remains will be undisturbed, and the court should ensure that, if reasonably possible, this assumed wish will be respected. In all these cases, the court must and will have regard to the supposed wishes of the deceased. I say supposed wishes, because it can rarely, if ever, happen that the circumstances giving rise to the application could have been contemplated still, less, discussed, in the lifetime of the deceased.”* **Analysis & Determination**: 1. I have carefully considered the evidence and the submissions by both sides – The issue this court is required to determine is how should the estate of the deceased be distributed? Is the document dated 2nd January 1998 a will? If that agreement was his wishes, were those wishes effected to the extent that this court can uphold them? 2. It is important to note from the onset, that the agreement that was produced by the Petitioners was no will as per **Section 11 of the Law of Succession Act**. Hence the petitioners cannot be heard to say that the deceased left a will. 3. The argument that it was a will cannot stand as the administrators filed this cause as a matter brought as an estate intestate – that the deceased did not leave a will, and therefore the deceased can only be treated as having died intestate. 4. I have looked at the agreement of 2nd January, 1998. The petitioners are not calling it the wishes of the deceased. They are saying it is his will. Be that as it may the court is required to look at it. 5. The allegation of forgery was not proved – but the petitioners did not call the one independent witness, who was not a family member who was the alleged witness to the agreement. 6. The form P & A 5 had a list of 11 beneficiaries. However, the only distribution is to Manthi Mutiso, Kiema Mutiso and Musyoki Mutiso and the daughter Mumo Mutiso. This document did not provide anything for the wife though she was alive and present at the time. 7. The document does not also give the other daughters anything. 8. According to **Richard Mutiso** – in his statement he says *“our father subdivided the land on the old Constitution and all the sisters were allocated although they were married”* This statement is mistaken. **The Law of Succession Act** came before the Constitution, 2010 – and in it, the law does not differentiate between children, as male or female or married or unmarried. according to the law of Succession Act the children of a deceased person are just children. 9. Looking at the mode of distribution the petitioners have left the distribution vague. The size of the estate is not described, and the size of each of the shares are not known. **Section 71** of the LOSA is clear that the shares must be known. 10. In addition, the fact that the alleged wishes did not clearly describe where the deceased’s wife (widow) was to live , and which part of the land was for the daughters, makes the wishes difficult to enforce. 11. Additionally, while there is no doubt that the family members have occupied and used parts of the estate for the longest time the distribution needs to be clear and equitable . 12. In the circumstances I find that the protest has merit and the mode of distribution proposed by the Petitioners is not tenable. In my considered view **Section 42 of the Law of Succession Act** would apply with respect to the distribution of the estate to the children of the deceased. 13. Further, the application of Section 42 will allow the distribution to respect the portions that have been cultivated and occupied by the children of the deceased. 14. In Conclusion I find that the document dated 2nd January 1998 is not a will. 15. The Protest is allowed. 16. Pursuant to s. 35. (1) (b) of the LOSA the widow shall have a life interest in the whole residue of the net intestate estate 17. There after the estate of the deceased will devolve to the children of the deceased in equal shares pursuant to s. 38 and s.42 of the Law of Succession Act. Each party to bear its own costs. **Judgment Read, dated and delivered virtually at Kabarnet High Court this 13th July 2026.** **MUMBUA T. MATHEKA** **JUDGE** **In the presence of:** Court Assistant: **Dan**