In re Estate of Thuita alias Samuel Ndegwa (Deceased) (Succession Appeal E002 of 2025) [2026] KEHC 12500 (KLR) (29 July 2026) (Judgment)

**REPUBLIC OF KENYA** **IN THE HIGH COURT AT NYERI** **SUCCESSION APPEAL NO. E002 OF 2025** **IN THE MATTER OF THE ESTATE OF SAMUEL NDEGWA THUITA alias SAMUEL NDEGWA (DECEASED)** **DAVID CHENUKA NDEGWA………………………………. … APPELLANT** ## **VERSUS** ## **JERIOTH NYAMBURA NDEGWA……………..…………… RESPONDENT** **JUDGMENT** 1. This is an appeal from the Judgment and decree of Hon. W. Kagendo, Chief Magistrate, dated 28.11.2018 in Nyeri CMCSUCC Cause No. 30 of 2018. 2. The Memorandum of Appeal dated 23.1.2025 raised 4 grounds of appeal. The grounds are, however, in concise and do not appear to derive any apparent error of law or fact on the part of the lower court. They were stated as follows: 3. The learned magistrate erred in law and fact in distributing the intestate where there are children and a surviving spouse (sic). 4. The learned magistrate displayed open bias against the Appellant by stating that he was the only one complaining. 5. The learned magistrate erred in law and fact in failing to interrogate the external forces that could have caused the Respondent to keep changing mode of distribution. 6. The learned magistrate erred in law and fact in dealing with individual assets separately rather than sharing all equally regardless of their location. Pleadings 1. By way of summons dated 23.6.2017 and filed by the Respondent, the Respondent sought the following reliefs in the lower court: 2. *The Grant of Letters of Administration made to Jerioth Nyambura Ndegwa on 5.12.2014 be confirmed.* 3. The summons was premised on the grounds on the face of it expounded and supported through the sworn affidavit of the Respondent. By the said Affidavit, it was deposed as follows: 4. The Deceased was survived by the following dependants and children: 5. Jerioth Nyambura Ndegwa - widow 6. Ann Wangui Mathenyu – daughter 7. Charles Mwangi Ndegwa – son 8. Grace Muthoni Irura - daughter 9. David Chenuka Ndegwa - son 10. Merioth Kagure Ndegwa - daughter 11. Joseph Joe Mathenge - son 12. The assets owned by the deceased were as follows: 13. LR Gataragwa/Gatarakwa/Block 3/931 to be shared as follows: 14. Merioth Kagure Ndegwa 1.54 ha 15. David Chenuka Ndegwa 1.54 ha 16. LR No. Tetu/Thatha/175 to be shared as follows: 17. Charles Mwangi Ndegwa 4.3 acres 18. Joseph Joe Mathnge 4.3 acres 19. The Appellant filed an affidavit of protest dated 13.7.2027 as well as supplementary affidavit dated 2.5.2017 by which it was deposed as follows: 20. The Respondent had initially filed summons for confirmation of grant dated 5.5.2014 which she abandoned and had now filed this present application. 21. The statements by Merioth and Joseph was false. Testimonies and Evidence in the Lower Court 1. The Appellant testified in the lower court as PW1. He relied on his two affidavits dated 2.5.2017 and 13.7.2017. 2. It was his case that the family of the deceased had a meeting in which they came up with a memorandum of understanding on the distribution of the property. The Respondent changed the initial confirmation of grant and filed the current one. He stated that he was thrown on rocks and a dry desert place. On cross examination, he stated that his mother was misadvised by his siblings. He was given 1.54 ha. In the previous distribution, 0.77 ha in Gatarakwa and 2.15 acres in Tetu were proposed to him. 3. PW2 was John Ndungu Thuita. The deceased was his step brother. He had two shambas. The deceased showed the Appellant land to build on in Tetu. He testified that the shamba should be shared without discrimination. The Appellant had planted trees and had an 8 roomed house in Tetu. 4. PW3 was Charles Wachira. The deceased was a brother to his father. Charles, Joseph and David lived in Tetu. The land had been subdivided. 5. The Respondent also testified as DW1. She relied on her affidavit dated 23.6.2017 in support of the confirmation of grant. 6. She lived in Tetu with Mwangi and Mathenge. No one else lived there. She did not know where the Appellant lived. He had a shamba in Gatarakwa but never lived there. The Appellant was brought up in Thatha. She constructed a small house for the Appellant. She had not given the Appellant land in Thatha. He did not sign the consent. 1. DW1 was Mary Kagure Ndegwa. She relied on her witness statement dated 30.3.2017. The Respondent was her mother. She was married. All her brothers and sisters had signed the consent. Later, her mother, the Respondent, changed mind. She said the deceased had instructed how to share the land. The Appellant signed the second consent. The Respondent withdrew the first summons. The Appellant had no house in Gatarakwa. He has a small house in Tetu which parents constructed for him. 2. DW3 was Joseph Joe Mathenge. Charles and him lived in Tetu. The deceased had no will. 3. The lower court considered the matter and rendered its judgment dismissing the protest. Aggrieved, the Appellant lodged a Memorandum of Appeal hence this appeal. Submissions 1. The Appellant filed submissions dated 11.11.2025. It was submitted that under section 35 of the Law of Succession Act, the widow is entitled to a life interest in the net estate as well as household and personal effects of the deceased. 1. It was also submitted that the mode of distribution was unfair. The Appellant was removed from the land in Tetu where he has planted tea bushes and trees. 2. The Respondent filed submissions dated 16.6.2026. It was submitted that the lower court looked at fairness and equity in distribution. 1. It was submitted that litigation must come to an end and the protest was rightly dismissed, and the appeal should be dismissed. Analysis 1. The issue for determination is whether the protest should have been allowed and the mode of distribution suggested by the Respondent set aside. Section 51 of the [Law of Succession Act](http://resolver.caselaw.kenyalaw.org/resolver/akn/ke/act/1972/14), requires a person seeking to administer the estate of a person who died in 1980 to comply with section 51(2)(g) of the [*Law of Succession Act*](http://resolver.caselaw.kenyalaw.org/resolver/akn/ke/act/1972/14) and Rule 7(1)(e) of the *Probate and Administration Rules*, which require disclosure of all the children of the deceased. 2. A perusal of the summons for confirmation of grant dated 23.6.2017 reveals that the Appellant was included as a beneficiary. The Appellant however did not sign the consent. This appears to have been the reason he filed the protest. However, he did not state or demonstrate that he was not aware of the proceedings. 3. That said, it was imperative for the Appellant to state with certainty and prove circumstances that would persuade the court to find that the proposed mode of distribution by the Respondent was untenable and disinherited him or was unfair. The burden was on the Appellant. In **Anne Wambui Ndiritu –vs- Joseph Kiprono Ropkoi & Another [2005] 1 EA 334**, the Court of Appeal held that: **“As a general proposition under Section 107 (1) of the Evidence Act, Cap 80, the legal burden of proof lies upon the party who invokes the aid of the law and substantially asserts the affirmative of the issue. There is however the evidential burden that is case upon any party the burden of proving any particular fact which he desires the court to believe in its existence which is captured in Sections 109 and 112 of the Act.”** 1. The Appellant has to satisfy the court to adopt the mode of distribution that he supported. It was a matter of discretion to be exercised in accordance with the law. In the case of **Albert Imbuga Kisigwa v Recho Kavai Kisigwa, Succession Cause No.158 of 2000**, the Court stated as follows: “[13] Power to revoke a grant is a discretionary power that must be exercised judiciously and only on sound grounds. It is not discretion to be exercised whimsically or capriciously. There must be evidence of wrong doing for the court to invoke section 76 and order to revoke or annul a grant. And when a court is called upon to exercise this discretion, it must take into account interests of all beneficiaries entitled to the deceased’s estate and ensure that the action taken will be for the interest of justice.” 1. The Respondent on the other hand maintained that she proceeded as per the wishes of the deceased. However, it was uncontested case that there was no will. Therefore, in absence of other reasons or fairness, the said wishes of the deceased could amount to nothing. 2. The Appellant’s case was not that the Respondent concealed any or acted fraudulently or the proceedings were defective. His position was conversely that the Respondent was misadvised to change the initial proposed mode of distribution. There was no material placed before the court to suggest that the Appellant opposed the change of the mode. The Appellant did not object to the withdrawal of the initial summons for confirmation of grant. A party cannot wait the court process to take effect and then refute the effects, having taken no action. The withdrawal of the initial summons was proper and effective. 3. The Appellant was not a beneficiary of Rule 26 of the Probate and Administration Rules. It was not his case that he had no notice of the proceedings. The Respondent complied with the law. Rule 26 of the ***Probate and Administration Rules,*** states that; (1) Letters of Administration shall not be granted to any applicant without notice to every other person entitled in the same degree as or in priority to the Applicant. (2) An Application for a grant where the Applicant is entitled in a degree equal to or lower than that of any other person shall in default of renunciation or written consent in form 38 or 39 by all persons so entitled in equality or priority be supported by an affidavit of the applicant and such other evidence as the court may require. 1. The Respondent also delineated the shares to the beneficiaries. The Appellant’s case was not that he was disinherited. He maintained that he was given property on a rocky desert land when he wished to get elsewhere. His witnesses testified that he had planted tea bushes and trees on LR No. Tetu/Thatha/175 which he claimed. There was no evidence that indeed the Appellant owned the alleged tea bushes and trees or cared for them. The Respondent denied that the Appellant had planted any coffee bushes, trees or even constructed on the alleged parcel. In the case of **Charles Mutua M’anyoro vs. Maria Gatiria [2009] eKLR,** it was held that: “…in mandatory language, the proviso to section 71 of the Law of Succession Act enjoins the court, in case of intestacy, to confirm the grant only if it is satisfied as to the respective identities and shares of all persons beneficially entitled to the estate. Another safeguard in ensuring that only the deceased person’s dependants benefit from the estate is in Rule 40(3) of the Probate and Administration Rules which requires that before a grant can be confirmed the particulars of the dependants must be disclosed…*It is imperative under the rules that all the dependants be in attendance during the hearing of the application for confirmation save where the dependants have signed a consent in writing. See Rule 40(8).”* 1. The court in deciding whether or not to revoke a grant must take into account all the relevant facts including the prejudice, if any, that was occasioned by the failure to comply with Section 76 of the Act. It therefore follows that the mere fact that the conditions under Section 76 of the Act exist, does not necessarily follow that the grant must be revoked. In this case, no condition was even pleaded or proved. 1. No prejudice was demonstrated and where the justice of the case tilts against the interference with these proceedings, the Court ought not to revoke the grant. It is not all cases where consent is proved to have not been obtained from all beneficiaries that Grants must as a condition be revoked. The Appellant has not proved that he has been disinherited or that any of the property granted to him was unavailable or relatively decimal as compared to other beneficiaries. The variations in the sizes and location of the two properties were explained by the Respondent and the witnesses who testified for the Respondent and I find no basis to interfere. It was in good faith and has not been proved to have reduced or adversely affected the Appellant’s inheritance. As held by Mwita, J, in **Albert Imbuga Kisigwa vs. Recho Kavai Kisigwa, Succession Cause No.158 of 2000**: “Power to revoke a grant is discretionary power that must be exercised judiciously and only on sound grounds. It is not discretion to be exercised whimsically or capriciously. There must be evidence of wrong doing for the court to invoke section 76 and order to revoke or annul a grant. And when a court is called upon to exercise this discretion, it must take into account interests of the beneficiaries entitled to the deceased’s estate and ensure that the action taken will be for the interests of justice.” 1. The net effect of the foregoing is that I find no basis to fault the finding of the lower court. The process of obtaining the impugned grant was not defective nor attended by misrepresentation and concealment of matters from the court. 2. The court finds that the lower court was correct in its finding. Determination 1. In the upshot, I make the following orders:- 2. The appeal is not merited and is dismissed. 3. The Appellant shall pay disbursements of Ksh. 25,000/= to the Respondent. **DELIVERED, DATED** and **SIGNED** at **NYERI** on this **29th** day of **July, 2026**. Judgment delivered through Microsoft Teams Online Platform. **KIZITO MAGARE** **JUDGE** **In the presence of: -** Mrs. Maina for the Appellant No appearance for the Respondent Court Assistant – Timothy