https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11104

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA** **AT NYERI** **HIGH COURT SUCCESSION APPEAL CAUSE NO. E025 OF 2024** **DORIS MUYIA MATHENGE.……………………...…….…….APPELLANT** **VERSUS** **JOHN KANG’ETHE NDIRITU……………………..……….RESPONDENT** **JUDGEMENT** 1. Before this Court is the Memorandum of Appeal dated **29th October 2024** by which the Appellant **DORIS MUYIA MATHENGE** seeks the following orders:- **“1. THAT the appeal be allowed with costs.** **2. THAT the ruling of the Lower Court be set aside, Doris Muyia Mathenge be reinstated as the administrator and land parcel Number TETU/KARAIHU/491 be transmitted to DORIS MUYIA MATHENGE absolutely.”** 2. The Respondent **JOHN KANG’ETHE NDIRITU** opposed the appeal. The matter was canvassed by way of written submissions. The Appellant filed the written submissions dated **11th December 2025** whilst the Respondent relied upon his written submissions dated **10th** **March 2026**. **BACKGROUND** 3. This succession cause relates to the estate of the late **REBECAH** **MUTHONI MATHENGE** (hereinafter ‘**the Deceased’**) who died intestate on **14th June 1994**. A copy of Death certificate Serial No. **0612956** is annexed to the petition for letters of Administration Intestate dated **3rd May 2018**. 4. The Deceased was survived by two sons **PETER CHARLES NDERITO** and **CHARLES NDUNGU MATHENGE** who are also both Deceased. Each of the two sons of the Deceased was survived by a wife and children. The Appellant **Doris Muyia Mathenge** is the widow of the late **Charles Ndung’u Mathenge** whilst the Respondent **John** **Kang’ethe Nderito** is the son of the late **Peter Charles Nderito**. Therefore the Appellant is a daughter-in-law of the deceased whilst the Respondent is a grand-child to the Deceased. 5. The estate of the deceased comprised of two (2) parcels of land as follows:- **(a) TETU/KARAIHU/488** **(b) TETU/KARAIHU/491** 6. Following the demise of the deceased the Respondent filed a citation which was not prosecuted. Thereafter the Appellants sought and obtained a Grant of letters of Administration Intestate which was issued on **30th July 2020**. The Grant was duly confirmed on **29th June** **2021**. According to the certificate of confirmed Grant the estate was to be distributed as follows;- | | | | | | --- | --- | --- | --- | | **NO.** | **DESCRIPTION OF PROPERTY** | **NAMES** | **SHARE OF HEIRS** | | 1. | Tetu/Karaihu/488 | Doris Muyia Mathenge John Kangethe Ndiritu ***in trust of the family of Peter Ndiritu Mathenge*** | To be shared equally | | 2. | Tetu Karaihu/491 | Doris Muyia Mathenge | Absolutely | 7. The Respondent then filed a summons for Revocation of grant dated **6th February 2023** seeking to have the estate distributed equally between the estates of the two sons of the deceased. The Respondent argued that the Appellant had obtained the grant fraudulently by failing to disclose the fact that there existed other beneficiaries to the estate and that not all the beneficiaries had consented to confirmation of the grant. 8. The Appellant filed a Replying Affidavit dated **28th February 2023** in which she denied having obtained the grant fraudulently. She stated that the summons for confirmation of grant being unopposed was allowed by the court. Finally the Appellant defended the mode of distribution of the estate stating that the deceased in fact owned three (3) parcels of land being **(i) Tetu/Karaihu/491 - 1.260 Hectares** **(ii) Tetu/Karaihu/488 - 0.75 Hectares** **(iii) Tetu/Karaihu/496 - 1.76 Hectares** 9. That during her lifetime the deceased had bequeathed to the Respondents father **Peter Charles Nderito** the parcel of land known as **Tetu/Karaihu/491** which parcel of land the Respondents father later sold. 10. The Summons for revocation was heard in the Lower Court and in a judgment delivered on **30th** **September 2024 Hon. ISMAEL IMOLEIT** Resident Magistrate revoked the grant which had been issued to the Appellant. The trial court further directed that **Tetu/Karaihu/488** and **Tetu/Karaihu/491** be shared equally in line with **Section 38** of the **Law of Succession Act**. 11. Being dissatisfied with this decision the Appellant filed this appeal which is premised upon the following grounds:- **“1. The Learned Magistrate erred in law and in fact in failing to recognize that it is the respondent herein and not the appellant who initiated the succession cause using the Chief’s letter dated 28th March 2018.** **2. The learned Magistrate erred in law and in fact in finding that the appellant took advantage of the situation and made herself the sole administrix while in fact it is the respondent who initiated the cause and abandoned it and failed to appear in court even though duly served and as such the appellant took over the cause and finished it.** **3. The learned Magistrate erred in law and in fact in finding that the introduction of land parcel number TETU/KARAIHU/496 was meant to disinherit the applicant’s family.** **4. The learned Magistrate erred in law and in fact by not** **approaching Section 42 of the Law of Succession Act with regard that the respondent’s father had been gifted LR. TETU/KARAIHU/496 during the deceased’s lifetime.** **5. The learned Magistrate erred in law and in fact by revoking the Grant of letters of Administration Intestate made to Doris Muyia Mathenge on 23rd March 2020 and the Certificate of Confirmation of Grant dated 29th June 2021 and yet the grounds under Section 76 of the Law of Succession Act had not been proved by the respondent.** **ANALYSIS AND DETERMINATION** 12. I have carefully considered this memorandum of appeal as well as the record of Appeal filed in this matter. 13. This is a first appeal. It is settled law that the duty of the first appellate court is to re-evaluate the evidence which was adduced in the subordinate court both on points of law and fact and come up with its own findings and conclusion **[see Peters -vs- Sunday post limited [1958] E. A. 424]** 14. In **SELLE** and **Another -vs- ASSOCIATED MOTOR BOAT COMPANY LTD & Others [1968] 1 E.A 123** it was stated that **“An appeal to this court from the High Court is by way of retrial and the principles upon which this court acts in such an appeal are well settled. Briefly put they are that, this court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind [the fact] that it has neither seen nor heard the witnesses and should make due allowance in this respect. In particular this court is not bound necessarily to follow the trial judge’s findings of fact if it appears that he has clearly failed on some point to take into account particular circumstances or probabilities materially to estimate the evidence.”** 15. Likewise in **GITOBU IMANYARA & 2 Others -vs- ATTORNEY GENERAL [2016] eKLR**, the Court of Appeal stated as follows:- **“An appeal to this court is by way of a retrial and the principles upon which this court acts in such an appeal are well settled. Briefly put, they are that this court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should** **always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect.”** 16. It is common ground that the deceased in this cause passed away on **14th June 1994**. It is not in dispute that the deceased died intestate. The names and identities of the beneficiaries to the estate are not in dispute. The main problem between the parties is the mode of distribution of the estate. 17. The Appellant stated that in coming up with her mode of distribution of the estate she took into account the fact that the deceased had during her lifetime gifted **Plot 496** to her son **Peter Charles Nderito**. As such the Appellant contended that the family of the said **Peter** **Charles Nderito** were not entitled to an equal share of the estate. 18. The Appellant annexed to her Replying Affidavit dated **28th February** **2023** the Green card for **Tetu/Karaihu/496** (Annexture ‘**DMM3**’). The green card shows that the deceased was the original proprietor of **Plot** **496**. On **9th April** **1979** the land changed proprietorship and was registered to **Peter Charles Nderito**. Later on **30th November** **1982** ownership changed hands yet again to one **Jason Ndungu Mathenge**. 19. Initially the Respondent denied that **Plot 496** had been gifted to his late father by the deceased. However under cross-examination he conceded that the land was given to his father as a gift (see **Page 110** of the record of appeal). 20. From the above I do find that the deceased did during her lifetime make a gift of **Plot 496** to her son, **Peter Charles Nderito.** 21. **Section 42** of the **Law of Succession Act** provides as follows:- **“Where (a) an intestate has, during his lifetime or by will, paid, given or settled any property to or for the benefit of a child, grandchild or house;** **or** **(b) property has been appointed or awarded to any child or grandchild under the provisions of section 26 or section 35, that property shall be taken into account in determining the share of the net intestate estate finally accruing to the child, grandchild or house.** 22. Therefore courts are required to take into consideration gifts inter vivos made by the deceased when determining how the estate should be distributed. 23. In **Re: Estate of the Late Gedion Manthu Nzioka (deceased) [2015] eKLR** the court stated as follows: **“In Law, gifts are of two types (gifts inter-vivos and gifts made in contemplation of death (gifts Mortis Causa. 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 a way of a declaration of a trust by the donor, or by way of resulting trusts or the presumption of gifts of land must be by way of registered transfer, or if the land is not registered it must be in writing or by a declaration of a trust in writing. Gift’s inter-vivos must be complete for the same to be valid.” [Emphasis my own]** 24. In this case the gift was perfected and title was transferred to the Respondents father as evidenced by the Green Card. The Respondents father later transferred (sold) the land to a third party. 25. The Appellant in her evidence stated that the deceased had directed that **Plot 488** be shared equally between her two sons whilst **Plot 491** was to go to the Appellant absolutely. It is trite law that he who alleges must prove. There is no evidence that the deceased left a written or an oral will directing how her estate was to be divided. Indeed the estate was treated as intestate. 26. The Appellant has not provided any concrete and/or tangible evidence to support her claim as to what the wishes of the deceased were. **Plot** **491** was still registered in the name of the deceased at the time of her death. As such any gift intervivos purportedly made to the appellant had not been perfected and was incomplete. Therefore I find that **Plot 491** forms part of the estate of the deceased and is available for distribution to the beneficiaries. 27. The question arises as to whether the Appellant being a daughter-in-law of the deceased is a direct beneficiary to the estate and whether the Appellant would rank in priority over the respondent who is a grandchild of the deceased. 28. In **RE: ESTATE OF CATHERINE NDUKU MALINDA (Deceased) [2020] eKLR Hon. Justice George Odunga** (as he then was) held as follows:- **“176. In my view a daughter in law may lay a claim as beneficiary not in her own right but as a legal representative of a deceased son. In other words, the legal representatives of a deceased’s dependants may properly stake a claim to the estate** **of a deceased person on behalf of legally recognized dependants. However, that is not the Protestor’s claim in these proceedings. My view is reinforced by the decision in the case of Re Estate of Munyua Mbeke (Deceased) [2015]………”** 29. In the said case of **In Re Estate of Munyua Mbeke (Deceased) [2015] eKLR Hon. Justice W. Musyoka J,** held that: **“3. The clear wording of section 29 of the act does not include daughters-in-law of the deceased. Daughters-in-law are not children of the deceased and therefore they do not fall within the category of the children of the deceased…..” [Own emphasis]** 30. Similarly, in the case of **In re Estate of Imoli Luhatse Paul (Deceased) [2021] eKLR**, **Hon. Justice Musyoka** again pronounced himself as follows: **“4. I believe that there is a misconception. Grandchildren are not in the same footing with the daughters-in-law or children-in-law of the deceased. Grandchildren would be blood relatives of the deceased. They would be entitled automatically, as blood kin of their grandparent, to take the share due to their own parents, the biological children of the deceased, where such biological children are dead. A surviving spouse of a dead child of the deceased is not a biological kin of the deceased parent-in-law. Such a child-in-law would have no automatic right or entitlement to a share in the estate of her parent-in-law. Whereas statute is clear that grandchildren have a right under sections 39 and 41 of the Law of Succession Act, there is not a** **single provision in the law of succession Act, or any other statue for that matter, which makes provision for any in-law. Consequently, since in-laws have no rights of inheritance from the estates of their in-laws, they can only approach the court upon obtaining representation to the estates or the persons on whose account they claim. That claim to a stake in the estate of the parent-in-law would not be in their own right, but rather on behalf of the estate of another, their dead spouse. They can only stake a direct claim to the estate of their late spouse, whose assets include what the dead spouse inherits from the estate of their parents. I must emphasize that grandchildren are not in that boat with such in-laws, and they claim from their** **grandparent’s estate, not on behalf of their dead parents, but directly as grandchildren, children of such dead children, the share that ought to have gone to their parents.” [Own emphasis]** 31. In the case of **In re Estate of Francis Andachila Luta (Deceased) (Succession Cause 875 of 2012 [2022] eKLR Hon. Justice Musyoka** went even further by stating as follows: **“29. One of the sons of the deceased is dead, and that is to say the husband of the protestor. I have mentioned section 41 above, in connection with how the share of the deceased parent is handled. When a child of the deceased dies, and is survived by offspring, their entitlement is not extinguished or diminished. It should go to their offspring or to his/her estate. Section 41** **says that the offspring step into the shoes of their dead parent, and take the share that is due to such dead parent. That share should be equal to the shares taken by the surviving children of the deceased. …..In-laws, be they parents-in-laws or children-in-laws, are not blood relatives of their children-in-law or father-in-law. They have no right or entitlement to the intestate estate of their dead in-law. The Law of Succession Act does not recognize** **them or their rights. Indeed, the Law of Succession Act does not even mention them. They can only claim the share due to her late husband, otherwise she has no direct right. For her to access the share due to her late husband, she has to obtain representation to his estate first, by way of a grant of letters of administration intestate. Pursuing the interest due to her late husband without first obtaining the grant in his estate would amount to intermeddling and her activities** **would run afoul of Section 45 of the Law of Succession** **Act”** 32. Therefore the Appellant being a daughter-in-law of the Deceased does not have an automatic right of claim to the estate of her late mother in-law. However the respondent who is the grand-child of the Deceased ranks in priority and can directly claim the share of the estate due to his late father. 33. **Section 47** of the Law of **Succession Act** vests court with wide discretion in granting protective powers of purposes of safeguarding the estate of a deceased person. It provides: **“The High Court shall have jurisdiction to entertain any application and determine any dispute under this Act and to pronounce such decrees and make such orders therein as may be expedient.”** **Likewise, Rule 73 of the Probate and Administration Rules provides that:-** **“Nothing in these Rules shall limit or otherwise affect the inherent power of the court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the court.”** 34. In conclusion this Court now makes the following orders (1) A confirmed Grant to be issued jointly in the names of **Doris Muyia** **Mathenge and John Kang’ethe Nderitu**. (2) The two assets forming the estate namely **(i) Tetu/Karaihu/488** **(ii) Tetu/Karaihu/491** **to be shared equally between the estates of Peter Charles Nderito and Charles Ndungu Mathenge.** 35. This being a family matter each side to bear their own costs. **Dated in Nyeri this 22nd day of July 2026.** **………………………..** **MAUREEN A. ODERO** **JUDGE**