https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12232

**REPUBLIC OF KENYA** **IN THE HIGH COURT AT NYERI** **SUCCESSION CAUSE NO. 349 OF 2001** **IN THE ESTATE OF MICHAEL KAMERE KAMAMIA (DECEASED)** **CHARLES KAMAMIA KAMERE ……………………………. APPLICANT** **VERSUS** **STEPHEN KAGEMA KAMERE …………….……..….1ST RESPONDENT** **PETER KAMAMIA KAMERE………………..………..2ND RESPONDENT** **RULING** 1. The deceased herein, Michael Kamere Kamamia, died on 27.03.1988. Stephen Kagema Kamere, the 1st Respondent herein, filed for Petition of Letters of Administration intestate and received into court on 21st June 1989, as Succession Cause No. 118 of 1989 in the magistrate’s court at Nyeri. The case was later transferred to this court as Succession Cause Number 349 of 2001. It has been in this court for the last 24 years and 10 months. Upon application on 24.03.2025. I made the following orders: The foregoing brings the court to an inevitable conclusion that the application for revocation is merited. I make the following orders: * 1. The application for revocation of grant is allowed. The grant issued to the Respondent and confirmed and subsequently rectified on 15.03.2018 is hereby revoked. 2. All proceedings from inception to date are set aside for having been fraudulently undertaken by the Respondents. 3. The consequence of the foregoing is that the Respondents, having participated in fraudulent concealment, cannot continue to be administrators. They are effectively released from being the administrators. 4. The applicant, Charles Kamamia Kamere is hereby appointed as an administrator. He shall forthwith gather all the estate and file an application for confirmation to include all beneficiaries. 5. All transfers for land parcel number Aguthi/Ithekahuno/242 together with all subdivisions are hereby revoked. The title deed to revert to the deceased herein and the registry index map be to remove all subdivisions and revert to the status as at the date of death of the deceased on 27.03.1988. 6. The Respondents to surrender all titles in their possession within 7 days. The Respondent shall give an account of the estate from the grant date to date. 7. The Respondents are perpetually barred from ever being administrators in this estate or any other estate whatsoever, having fraudulently applied for letters herein. 8. The matter shall be mentioned to confirm that the titles have reverted to the name of the deceased and that the new administrator has filed a summons for confirmation of grant. 9. The Respondents shall bear costs of Ksh. 45,000/= to the Applicants, within 45 days, in default, execution do issue. 1. The matter proceeded for one year, beseeching the former administrator to surrender the titles to court as per order (f), until 23.04.2026 when I found the former administrator in contempt and did the needful. The titles were produced within 24 hours of the contemnor’s incarceration. The matter is now for ruling on the protest and confirmation. The administrator indicates that there are the following beneficiaries: 1. Charles Kamamia Kamere - son 2. Lyadia wangui Kamere - daughter 3. Hilda Gachambi Ndiangui – daughter in law 4. Diana Nyaitaha Kamere - daughter 5. Jane Wambui Kamere 2. He also included other beneficiaries, that is, 1. James Kamamia - Grandson 2. Michael Kamere - Grandson 3. From the record, the deceased had 2 widows, or houses as follows: 1. Phyllis Njoki Kamamia (1st wife), * 1. Charles Kamamia Kamere, 2. Mary Wangare Kamere 3. Lydia Wangui Muitimu, 4. Stephen Kagema Kamere, 5. Bancy Wanjiru Kamere(Deceased), 6. Christopher Mwangi Kamere 2. Second house * 1. Peter Kamamia Kamere, 2. Diana Nyaitaha Kamere, 3. Andrew Ndumia kamere 4. Jane Wambui kamere-Wachira, 3. Dependant * 1. Leah Muringi Kamamia (deceased) 4. The deceased left the following properties: 1. Land parcel number Aguthi/Ithekahuno/257 - 11 acres 2. Plot No. 15, Ithekahuno market - 0.125 acres 3. Land parcel number Aguthi/Ithekahuno/242 - 3.7 acre Total acreage - 14.825 acres 1. The protest was filed by Peter Kamamia Kamere raising the following issues: 1. That the deceased died on 17.03.1988 not 17.03.1998. 2. Mary Wangari Kamere is deceased; hence, the signature on form 38 is forged. She left behind the following children: * 1. Michael Kamere Ndegwa 2. Wanjiru Ndegwa 3. Mwangi Ndegwa 3. He submitted that not all beneficiaries were mentioned. 2. He then listed 11 beneficiaries in the first house and three in the second house as follows in the first house: * 1. Charles Kamamia Kamere, 2. Lydia Wangui Muitimu, 3. Stephen Kagema Kamere, 1. Hilda Gachambi Mwangi - Daughter-in-law 2. Peter Mburu – Grandson 3. Charles Mwangi - Grandson 4. Michael Kamere - Grandson 5. Michael Kamere Ndegwa - Grandson 6. Joseph Njuguna - Grandson 4. Wanjiru Ndegwa – Grandson (Daughter?) 5. Mwangi Ndegwa –Grandson 1. He left out the following from the application by Charles Kamamia Kamere, 1. Mary Wangare Kamere 2. Bancy Wanjiru Kamere (Deceased) 3. Christopher Mwangi Kamere Second House * + 1. Peter Kamamia Kamere, 2. Diana Nyaitaha Kamere, 3. Jane Wambui Kamere-Wachira 1. He left out Andrew Ndumia Kamere for the administrator’s list. He indicated that the late Leah Muringi Kamamia (deceased) was their aunt. He was survived by: 1. Michel Kamere Muringi 2. James Kamamia Muringi 2. He stated that Andrew Ndumia Kamere (deceased) did not leave any children or wife. They lamented that the court failed to have viva voce evidence. It was not indicated at the time of directions that there is any letter saying anything about Andrew Ndumia Kamere. Such a request does not appear to be on record or make sense. First, for the second house, it is suicidal as it means their share drastically reduces. There is a question of whether or not the persons who claim to be wives of the late Andrew Ndumia Kamere (deceased) are outside the purview of this court. I find that the question is in the province of the estate of the late Andrew Ndumia Kamere. Submissions 1. The protestor, filed submissions stating that they opposed the summons as proposed and an Affidavit of Protest was sworn by Peter Kamamia Kamere on 28.10.2025. It was indicated that the Summons as well as the Affidavit of Protest have no dispute that at the time of his death the deceased was polygamous and was married to two wives who constitute two houses. They prayed that sharing be according to section 40 of the Succession Act. They relied on the case of [**Rono v Rono & another [2005] KECA 326 (KLR)**](https://new.kenyalaw.org/akn/ke/judgment/keca/2005/326/eng%402005-04-29)**,** where Waki JA in the leading judgment, accepted the proposition that the Court had the discretion in ensuring a fair distribution of the deceased’s estate but that the discretion must be exercised judiciously. He posited as follows: While I do not doubt the discretion donated by the Act in matters where dependants seek a fair distribution of the deceased’s net estate I think the discretion, like all discretions exercised by courts, must be made judicially or to put it another way, on sound legal and factual basis. The possibility that girls in any particular family may be married is only one factor among others that may be considered in exercising the court’s discretion. It is not a determining factor. In this particular case however, I find no firm factual basis for making a finding that the daughters would be married. As shown by the undisputed facts above, all except one were unmarried or divorced in 1994 and were advanced in age. Eleven years later when this appeal was heard, there was no evidence that the situation had changed. It is also an undisputed fact that the deceased treated all his children equally and never discriminated between them on account of sex. It is a factor in my view that was not sufficiently considered although it resonates with the noble notions enunciated in our Constitution and international laws. The Respondents themselves clearly recognized and honoured the wishes of the deceased when they proposed to give 14 acres of the land to each daughter of the deceased. I find no justification for the superior court whittling that proposal down to 5 acres to each daughter. More importantly, section 40 of the Act which applies to the estate makes provision for distribution of the net estate to the “houses according to the number of children in each house, but also adding any wife surviving the deceased as an additional unit to the number of children.” A “house” in a polygamous setting is defined in section 3 of the Act as a “family unit comprising a wife … and the children of that wife”. There is no discrimination of such children on account of their sex. 1. It was further submitted that in the case [**Douglas Njuguna Muigai v John Bosco Maina Kariuki & another [2014] KECA 753 (KLR)**](https://new.kenyalaw.org/akn/ke/judgment/keca/2014/753/eng%402014-01-21)**,** the court of appeal [Visram, Koome & Odek, JJ.A] noted the absurdity of a blind application of section 40(1) of the Law of Succession Act as follows: **Back to *Section 40(1)*, the *Law of Succession Act*, that provides that a widow shall be considered as a unit alongside the children of the deceased when it comes to the distribution of the deceased's estate. In this case, Jerioth Wangechi the first wife of the deceased who even participated in the dowry negotiations for her co wives is equated to the last born child of the 3rd wife of the deceased. Her contribution and support to the deceased as a spouse is not recognized and in our view that failure to recognize her contribution is tantamount to discrimination.** 1. They further submitted that in the instant case the affidavit in support of the Summons for Confirmation of the Grant contains inaccurate and misleading information which has been pointed out in the Affidavit of Protest. They submitted that the application contains information that is misleading and not correct. The late Andrew Ndiuini Kamere was not married and did not have any children. Since the court did not allow this matter to proceed by way of tendering *viva voce* evidence as requested by the Protestor, we have taken the liberty to file a letter dated 5th February, 2026 from the Chief of Aguthi location which clearly shows that Jemima Wambui Mutiria is married to one Mr. Ngunyi and has never been a wife to the late Andrew Ndumia Kamere. 2. The Applicant filed submissions dated 13.02.2026. They deviated from the application they filed and submitted that the estate should be subdivided between the 10 children and the 11th, who is their aunt, who is entitled to a share in 257 equally. They prayed that the land parcel number Aguthi/ Ithekahuno/257, and Land parcel number Aguthi/Ithekahuno/242 be subdivided equally, whereas Plot No. 15B, Ithekahuno market be sold and proceeds be shared equally in exclusion of Leah Mutungi Kamanda, deceased. 3. They submitted that the protest is not merited. They posited that the purpose of succession is to distribute assets to the estate of the deceased. Reliance was placed on the case of [**In re Estate of Joseph Kipkirui Chuma (Deceased) [2022] KEHC 14648 (KLR)**](https://new.kenyalaw.org/akn/ke/judgment/kehc/2022/14648/eng%402022-10-31)**,** where, PJO Otieno J held as follows: 5. In this court’s view, succession causes should be smooth sailing causes limited to disputes between family members and limited to questions whether a property is or not a part of the net estate, whether one is or is not a child to the deceased, whether one had been gifted by the deceased during the deceased life and therefore such gifts need to be taken into account in the scheme of distribution. 6.It is not the mandate of succession cause to delve into the dealings over the estate property before or after death. Where there be a controversy as to whether any transaction was undertaken and not concluded even by the deceased before death, and where the administration do not admit such liability, the only avenue open to such a claimant is to establish its claim before a civil court, in the usual way, then seek to enforce the resultant decree against the estate. 1. They submitted that the same is a nonstarter. The protest is not based on succession law. Analysis 1. My duty today is to find the best way out of the imbroglio. It is noted that the 2nd Respondent has developed plot number Plot No. 15 Ithekahuno market. He is 81 years old and is unlikely to develop any other plot. This development has taken since 1988. He shall therefore have the plot. However, the size (not value) shall be reduced from his share of the remainder of the estate. The three parcels of land shall be taken as one unit to be shared among the beneficiaries in the following three units: 1. First house 6 units 2. Second house 4 units 3. The dependant - 1 unit 2. There is one dependant, whom all parties agree is entitled to a portion of land parcel number Aguthi/Ithekahuno/257, that is, the late Leah Muringi Kamamia (deceased), who the parties indicated was given 2 acres by his late brother, the deceased herein. 3. The following are beneficiaries and dependants entitled in law to inherit as follows: 1. The properties of the estate shall be treated as one unit, that is, Land parcel number Aguthi/Ithekahuno/257, Plot No. 15B, Ithekahuno market and Land parcel number Aguthi/Ithekahuno/242, all measuring 8.2 hectares or 18.3101 acres. 2. The estate of the late Leah Muringi Kamamia (deceased) – 2 acres out of Aguthi/Ithekahuno/257. 3. I decline to direct the sale of Plot No. 15B, Ithekahuno market. The plot shall be inherited by Peter Kamamia Kamere absolutely since he has been developing it without opposition from other members for the last 34 years. 4. The remainder of the land, that is, Aguthi/Ithekahuno/242 and the remaining portion of Aguthi/Ithekahuno/257, shall be shared as follows: 1. Charles Kamamia Kamere 1.4060 acres 2. Estate of the late Mary Wangare Kamere 1.4060 acres * + 1. Lydia Wangui Muitimu 1.4060 acres 2. Stephen Kagema Kamere 1.4060 acres 3. The estate of the late Bancy Wanjiru Kamere (Deceased) 1.4060 acres The estate of the late Christopher Mwangi Kamere (Deceased) 1.4060 acres * + 1. Peter Kamamia Kamere 1.2285 acres 2. Diana Nyaitaha Kamere 1.4060 acres 3. The estate of the late Andrew Ndumia Kamere (deceased) 1.4060 acres * + 1. Jane Wambui Kamere-Wachira 1.4060 acres 2. The estate of the late Leah Muringi Kamamia(deceased) 1.4060 acres The estate of the late Andrew Ndumia Kamere (deceased) 1.4060 acres * 1. Jane Wambui Kamere-Wachira 1.4060 acres 1. I decline to order the sale of Plot No. 15B, Ithekahuno Market. The evidence before the court shows that the plot has been extensively developed by Peter Kamamia Kamere and that all the buildings erected thereon belong to him. It was further demonstrated that he has occupied and developed the property openly and without objection from the other beneficiaries for a period of approximately 34 years. 2. The court takes judicial notice of the fact that Peter Kamamia Kamere is now advanced in age, 81 years as a fact, and, in the circumstances, it would be neither equitable nor practical to require him to start afresh elsewhere after having invested substantial resources in the development of the property over such a long period. Accordingly, I find that the interests of justice are best served by preserving the status quo. In essence, it is prudent to let sleeping dogs lie. 3. With regard to the grandchildren, there was no agreement among the parties as to who the rightful beneficiaries of the deceased beneficiaries are. This court cannot, within these succession proceedings, embark on the determination of rights arising in the estates of deceased beneficiaries. To do so would amount to opening and adjudicating separate estates that are not presently before the court. Accordingly, any claim by grandchildren through their deceased parents must be pursued and determined in the respective estates of those parents. The grandchildren will therefore have to establish their entitlement in those proceedings before any consequential claims can be made in respect of the estate now before this court. The same applies to spouses of deceased beneficiaries. 4. In undertaking the subdivision and distribution of the estate, due regard shall be had to the existing occupation and possession by the beneficiaries and their dependants. Beneficiaries who have extensively developed portions of the estate may, where appropriate, receive a comparatively smaller acreage, provided that the portions already developed are, as far as practicable, allocated to the respective houses in occupation thereof. This approach will promote fairness, minimize disruption, and avoid unnecessary displacement of beneficiaries who have established long-standing interests on the land. 5. 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 meaning 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. They have gone through court for decades. It is better that the court promotes reconciliation, family unity and closure. Each party shall have their own costs. Determination 1. The grant is confirmed in the following manner: 1. The properties of the estate shall be treated as one unit, that is, Land parcel number Aguthi/Ithekahuno/257, Plot No. 15B, Ithekahuno market and Land parcel number Aguthi/Ithekahuno/242, all measuring 8.2 hectares. 2. The estate of the late Leah Muringi Kamamia (deceased) – 2 acres out of Aguthi/Ithekahuno/257. 3. I decline to direct the sale of Plot No. 15B, Ithekahuno market. The plot shall be inherited by Peter Kamamia Kamere absolutely since he has been developing it without opposition from other members for the last 34 years. 4. The remainder of the land, that is, Aguthi/Ithekahuno/242 and the remaining portion of Aguthi/Ithekahuno/257, shall be shared as follows: 2. Charles Kamamia Kamere 1.4060 acres 3. Estate of the late Mary Wangare Kamere 1.4060 acres 1. Lydia Wangui Muitimu 1.4060 acres 2. Stephen Kagema Kamere 1.4060 acres 3. The estate of the late Bancy Wanjiru Kamere (Deceased) 1.4060 acres The estate of the late Christopher Mwangi Kamere (Deceased) 1.4060 acres 1. Peter Kamamia Kamere 1.2285 acres 2. Diana Nyaitaha Kamere 1.4060 acres 3. The estate of the late Andrew Ndumia Kamere (deceased) 1.4060 acres 1. Jane Wambui Kamere-Wachira 1.4060 acres 2. The estate of the late Leah Muringi Kamamia(deceased) 1.4060 acres The estate of the late Andrew Ndumia Kamere (deceased) 1.4060 acres 1. Jane Wambui Kamere-Wachira 1.4060 acres 1. The properties for deceased beneficiaries shall be registered in the deceased beneficiaries’ estates to enable the beneficiaries of those estates to separately share. 2. Each party to bear their own costs. 3. It is sincerely hoped that this family will this day find peace. **DELIVERED, DATED** and **SIGNED** at **NYERI** this **23rd** day of **July,** the year of our Lord **Two Thousand and Twenty-Six**. Ruling delivered through Microsoft Teams Online Platform. **KIZITO MAGARE** **JUDGE** **In the presence of: -** Parties present Court Assistant – Timothy