Karibe v Mbugua & another (Succession Appeal E001 of 2023) [2026] KEHC 6732 (KLR) (20 May 2026) (Judgment)

Karibe v Mbugua & another (Succession Appeal E001 of 2023) [2026] KEHC 6732 (KLR) (20 May 2026) (Judgment) Neutral citation: [2026] KEHC 6732 (KLR) Republic of Kenya In the High Court at Nakuru Succession Appeal E001 of 2023 JM Nang'ea, J May 20, 2026 Between Benard Njoroge Karibe Appellant and Lenah Wambui Mbugua 1st Respondent Bennis Njambi Kinuthia 2nd Respondent (Being an Appeal from Judgement of the Chief Magistrate’s Court ( Hon. K.I Orenge- PM ) delivered on 17{{^th}} March 2023 in Nakuru CM SUCC. CAUSE NO. 64 of 2018 in the matter of the Estate of Mariam Njoki Kinuthia alias Njoki Kinuthia (deceased)) Judgment 1.This Appeal challenges the lower court’s Judgement dated 17/2/2023 by which the Appellant’s protest dated 14/10/2019 against confirmation of Grant of Letters of Administration herein was dismissed. The Appeal is predicated upon the following grounds contained in the Memorandum of Appeal dated 4/4/2023;1.That the learned trial magistrate erred in dismissing the appellant’s affidavit of protest sworn on 14th October, 2019.2.That the learned trial magistrate erred in law and in fact in disregarding the mode of distribution proposed by the Appellant.3.That the learned trial magistrate erred in law and fact in failing to hold that the deceased died intestate and in the circumstance the law applicable to the matter before her was section 38 of the Law of Succession Act.4.That the learned trial magistrate erred in law and in fact in considering exteneous matter in his judgement and arising on a judgement that cannot stand. (sic)5.That the learned trial magistrate erred in law and in fact when he refused to consider the protestor’s objection in the manner in which the administrator’s took out the grant of letters of administration.6.That the learned trial magistrate erred in law and in fact in failing to consider that the proposed subdivision of the property by the administrators was objected to by the Protestor during the lifetime of the deceased.7.That the learned trial magistrate erred in law and in fact in when he held that the Protestor was provided for during the lifetime of the deceased when there was no evidence before him to that effect.8.That the learned trial magistrate erred in law and in fact in dismissing the Protestor protest and proceeding to allow the Petition to proceed to schedule the summons for hearing upon securing the requisite consent by the beneficiaries without indicating whether the Protestor’s consent would be required or not. (sic) 2.The Appellant prays for the Appeal to be allowed and the lower court’s Judgement dated 17th March 2023 be set aside and the Protest allowed. 3.The background to the Appeal is that Grant of Letters of Administration in respect of the deceased’s Estate herein was issued to the Respondents on 31/8/2018. The Respondents thereafter filed an Application dated 11th April 2019 seeking confirmation of Grant in order to transmit the deceased’s Estate to lawful beneficiaries. That Application provoked the Appellant’s protest that was dismissed by the lower court. 4.The protest was disposed of by viva voce evidence. The Appellant relied on his affidavit in protest sworn on 14/10/2019 in reply to the Application for confirmation of the Grant herein. He contended that the proposed mode of distribution of the Estate was flawed for the reason that it aims to benefit the Respondents to the detriment of other beneficiaries. In the Appellant’s opinion, the deceased’s Estate comprising of parcel of land known as Nakuru/Rare/Gichobo/230 the deceased inherited from her late husband, ought to be shared out equally among all the deceased’s children. One of the siblings (Frasha Wangari Mwangi) who is said to be deceased, however, allegedly renounced her share of the Estate. Another sibling called Henry Mungai Kinuthia also died and, according to the Appellant, his share should go to his wife and their 7 children. 5.The Appellant attacked the Respondents’ proposal for unfairly depriving him and his other brothers of their rightful shares of the deceased’s property, hence his protest. The Appellant claimed to have had his own 5 acres of land that he sold off in 2001. 6.Both Respondents also testified before the trial court. The 1st Respondent stated that before their deceased mother died in 2015, she had sat down her children and directed how her land would be divided among them. The Respondents were given 4 acres each. Because the Appellant and his other brother called Ng’ang’a had other land, they were bequeathed one acre each. These two brothers allegedly disagreed with their mother’s decision but the deceased went ahead to call a Surveyor to subdivide the land as per her wishes. The objecting brothers threatened the Surveyor who stopped the exercise, according to the 1st Respondent. She wants the wishes of the deceased to be respected. 7.The 2nd Respondent fully confirmed the 1st Respondent’s evidence. 8.In dismissing the Appellant’s protest, the trial court noted that the Appellant had been given land by his deceased, father, as per the local chief’s letter. His mother then gave him and his brother (Ng’ang’a) an additional one acre each. The court therefore found the Appellant to be insincere. His protest was dismissed for lack of merit. 9.Principles guiding determination of a first Appeal such as before me were long settled in many cases including the often quoted case of Selle vs Associated Motor Boat Company. Ltd & Others (1968) EA 123. The court is enjoined to review the material placed before the lower court with a view to reaching its own conclusions both on matters of fact and law while bearing in mind that it didn’t have the benefit of seeing witnesses testify. 10.I have perused the Record of Appeal and written submissions proffered by learned Counsel for the parties. It is not in dispute that the deceased’s Estate comprises only one property, Nakuru/Rare/Gichobo/230 measuring 10 acres. The deceased’s children who are beneficiaries of the Estate are not also in dispute. The issue for determination is whether all the deceased’s children are entitled to equal shares of the Estate. 11.While the Respondents claim that the deceased had directed how her property would be distributed among all her children, that apparent oral will has not been proven. No independent witness has been called to corroborate the Respondents’ evidence. There is therefore no Will or proven Will to guide the court in resolution of the dispute. 12.That the Appellant had benefited from the Estate of his also deceased father to the detriment of his siblings, would be a factor to consider in this matter. There is, however, no evidence that he inherited a portion of his deceased’s father’s Estate said to have been a subject of separate Succession proceedings. Whereas the area Chief’s letter produced in the lower court purports to show that the Appellant did benefit from his father’s Estate, there is no evidence corroborating his claim as the Chief did not testify in the lower court and subject himself to cross-examination in order to test credibility of his claim. I agree with the Appellant that, in any event, a Chief’s role in such proceedings is usually limited to helping identify the deceased’s close relatives and therefore potential beneficiaries of the Estate for reference by the court. 13.The Appeal is allowed. The impugned Judgement of the lower court is set aside and substituted with this court’s order allowing the Appellant’s protest. All the children of the deceased are entitled to equal shares of the Estate, unless any of them renounces their shares. 14.Being a family matter, no order is made as to costs. JUDGEMENT DELIVERED THIS 20TH DAY OF MAY, 2026 IN THE ABSENCE OF THE PARTIES AND/OR THEIR ADVOCATES.J.M. NANG’EA - JUDGE.