https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11396

In re Estate of Nganatha (Succession Cause 48 of 2001) [2026] KEHC 11396 (KLR) (23 July 2026) (Judgment) Neutral citation: [2026] KEHC 11396 (KLR) Republic of Kenya In the High Court at Nyeri Succession Cause 48 of 2001 DKN Magare, J July 23, 2026 IN THE MATTER OF THE ESTATE OF THE LATE PHILIP NGANATHA Between Eusevio Karugu Nganatha Applicant and Rosemary Wanjiru Nganatha Protestor Judgment 1.Since 2001, this matter has proceeded as an uncontested estate. However, by a very strange twist of fate, stranger than fiction, the petitioner who filed the petition for letters intestate grew very wise. She discovered that the deceased had left wishes. The wishes were meant to sanitise the intermeddling she had carried out. For example, in respect of land parcel number Nyeri/Lusoi/327, there is a restriction registered as it was subject to criminal case number 216 of 2019 at the Chief Magistrate’s Court at Nyeri. 2.Secondly, there is Plot 55 Chaka Ranch, which is said to have been sold by Rosemary Wanjiru Nganatha after the deceased died; there are now wishes that the same and the posho mill be sold. 3.Though not involving burial, the matter reminded me of the words of Justice Gachoka JA, contextualizing the death, burial and resurrection of Jesus Christ of Nazareth, when he stated as follows:1.Despite no one having personal experience with death, we all know that one day we will all meet our end at some point, but how and by whom our corporal remains will be disposed remains unknown to us. In Christian theology, we are told that Jesus of Nazareth predicted his death, but he did not at any point prophesy that Joseph of Arimathea would inter his body at Golgotha. Fortunately, no burial dispute ensued.2.In Greek mythology, one of the earliest recorded burial disputes is aptly depicted by Sophocles in his work 'Antigone.' Following the brutal murder of Polyneices, Creon, the King of Thebes, prohibits the burial of Polyneices. Polyneices's sister, Antigone, defies the king and proceeds to bury him. She then declares to her sister, Ismene, that we have only a limited time to please the living, but an eternity to honour the deceased. Abiding by the law of the gods, she defies the human law set by Creon. 4.The practice of resurrecting the deceased to sanctify human treacheries and misdeeds is from time immemorial and may not end soon. However, our courts will only use empirical evidence, while holding dear immutable truths that human greed, envy, gluttony, wrath, and sloth will continue to bedevil succession cases. It is always concerning that the wishes of the deceased will be brandished so that others may fear the wrath of the gods and ancestral spirits that must be appeased by complying with the wishes. It is true that the deceased's wishes, if genuinely expressed, should be regarded. However, the law of succession remains as set out in section 2(1) of the Succession Act as follows: 1.Except as otherwise expressly provided in this Act or any other written law, the provisions of this Act shall constitute the law of Kenya in respect of, and shall have universal application to, all cases of intestate or testamentary succession to the estates of deceased persons dying after the commencement of this Act and to the administration of estates of those persons. 5.Rosemary Wanjiru Nganatha and James Nganatha Ndumia filed for letters of administration intestate in this court on 9.02.2001, a period of 25 years and 4-5 months ago. The following were listed as beneficiaries:a.James Nganatha Ndumia – sonb.Titus Mwangi Nganatha – sonc.Eusevio Karugu Nganatha – sond.Edward kamoth Nganatha – sone.Charles ndirangu Nganatha – sonf.Jane Wangui Nganatha – daughterg.Phoeby Wanjira Nganatha – daughterh.Faith Njoki Nganatha – daughteri.Rose Kagure Nganatha – daughterSecond housej.Rosemary Wanjiru Nganatha – wife/widowk.Janet Wakarima Nganatha – daughterl.Esther Wanjiku Nganatha – daughterm.Juliana Wambui Nganatha – daughtern.Emma Wachera Nganatha – daughter 6.Although Rosemary Wanjiru Nganatha was described as the wife of the deceased, she was in fact the second widow. The first wife had predeceased the deceased. Further, the children listed in the proceedings were from the deceased's two houses. This distinction is material for purposes of accurately identifying the beneficiaries and the composition of the deceased's family. 7.The petitioners listed the following assets in form P&A 5:a.Nyeri/Warazo/219b.Nyeri/Warazo/219c.Tetu/Unjiru/246d.Laikipia/Tigithi/Block III/374 (Matanya) Plot No. 75 Maki Manambu (Kiganjo-Shaka).e.Nation Media Group Old Shares - 270f.Munungaînî Sharesg.Bicycle Make Largerh.Vehicle registration number KTZ xxxx, make Datsun 1200. 8.The estimated value was wrongly indicated as 100,000/=; the estate is far much lower, and the correct value is upwards of 50,000,000/. However, nothing turns on this for now. 9.There was a cross petition filed by the 6 objectors declaring that the deceased left the following surviving him:a.Jane Wangui Nganathab.Titus mwangi Nganathac.Eusevio Karugu Nganathad.Edward Kamotho Nganathae.Phoeby Wanjira Nganathaf.Faith Njoki Nganatha 10.The objection had been made by Titus Mwangi Nganatha, Eusevio Karugu Nganatha, Edward Kamotho Nganatha, Phoeby Wanjira Nganatha, Faith Njoki Nganatha and Jane Wangui Nganatha. The last of the objectors was not listed as a beneficiary in the objection. Nevertheless, the letters were issued to the two, Rosemary Wanjiru Nganatha and James Nganatha Ndumia, on 11.04.2002. 11.For confirmation, by a summons for confirmation of grant dated 9.2.2011, the Petitioners sought the letters of administration intestate made to Rosemary Wanjiru Nganatha and James Nganatha Ndumia on 11.4.2002. 12.Summons for revocation of grant was filed on 15.09.2010 by Eusevio Karugu Nganatha for failure to complete the estate and disposal of money in the account and some movable properties. The matter went into a lull until an application was made on 14.11.2023 to appoint Eusevio Karugu Nganatha as a co-administrator for the first house together with Rosemary Wanjiru Nganatha. This was because the co-administrator, James Nganatha Ndumia, died on 16.10.2023. 13.The new co-administrator filed summons for confirmation dated 5.06.2024. The widow, Rosemary Wanjiru Nganatha, filed a protest dated 19.9.2025 claiming that plot No. 55 Chaka did not belong to the deceased and was not part of the estate. 14.There was a consent by which the protestors and the petitioners resolved and adopted the proposed mode of distribution. However, the second house had difficulties on how to pronounce part of their shares. 15.By an application by way of summons for confirmation dated 5.06.2025, signed by Eusevio Karugu Nganatha, it sought confirmation of the grant. They set out that the proposed mode of distribution of the estate was stated under paragraph 5 of the said Affidavit as follows:a.Land Parcel No. Nyeri/Warazo/219a.Jane Wangui Nganatha - 1.25 Acresb.Titus Kagiri Nganatha - 2 Acresc.Phoeby Wanjira Nganatha - 1.25 Acresd.Faith Njoki Nganatha - 1.255 Acrese.Eusevio Karugu Nganatha - 2 Acresf.Edward Kamotho Nganatha - 2 Acresg.Rose Kagure Nganatha - 1.25 Acresb.Land Parcel No. Nyeri/Warazo/217 – to share 1 acrea.Rose Kagure Nganathab.Jane Wangui Nganathac.Faith Njoki Nganathad.Phoeby Wanjira Nganathae.Eusevio Karugu Nganathaf.Edward Kamotho Nganathag.Titus Kagiri Nganathac.Land Parcel No. Nyeri/Warazo/217– to share 6 acresa.Eusevio Karugu Nganathab.Edward Kamotho Nganathac.Titus Kagiri Nganathad.Land Parcel No. Tetu/Unjiru/246a.Rose Kagure Nganathab.Jane Wangui Nganathac.Faith Njoki Nganathad.Phoebe Wanjira Nganathae.½ share in plot number 12 Kagogi - Eusevio Karugu Nganathaf.Motor vehicle Registration No. KTZ xxxx Datsun 1200 - Rosemary Wanjiru Nganathag.½ share in Nyeri/lusoi/327 to be registered in the names of:a.Janet Wakarima Nganathab.Esther Wanjiku Nganathac.Juliana Wambui Nganathad.Emma Wachera Nganathah.Plot Number Chaka Plot No. 55 - Margaret Wachuka Ndumia in trust for Esther Nyaguthii Ndumia, Susan Wambui Nganatha, Catherine Esther Wanjiku Ndumia, Philip Nganatha Ndumia.i.Munungaînî Shares - Margaret Wachuka Ndumia in trust for Esther Nyaguthii Ndumia, Susan Wambui Nganatha, Catherine Esther Wanjiku Ndumia, Philip Nganatha Ndumia.j.Laikipia/Tigithi/Block III/374(Matanya)- to be sold to cater for administration expensesk.Nation Media Group Old Shares 270a.Janet Wakarima Nganathab.Esther Wanjiku Nganathac.Juliana Wambui Nganathad.Emma Wachera Nganathal.Vehicle registration number KTZ xxxx, make Datsun 1200 - Rosemary Wanjiru Nganatha.m.Plot No. 85 Maki - Maajabua.Janet Wakarima Nganathab.Esther Wanjiku Nganathac.Juliana Wambui Nganathad.Emma Wachera Nganathan.½ Plot No. 12 Kagogi Market - James Ndumia Nganathao.Munungaini Sharesp.Nation Shares - Rosemary Wanjiru Nganathaq.Bicycle Make Larger - Rosemary Wanjiru Nganatha 16.The co-administrator raised a protest on grounds that:a.The deceased had two wivesb.The deceased had, by an affidavit dated 2.09.199, declared his wishes.c.Plot number 55 Chaka Market does not form part of the deceased’s estate and was not capable of distribution as proposed in paragraph (g). Analysis 17.The court directed the matter to be heard by way of viva voce evidence. However, when issues were being settled, I noted that there is no dispute to go for hearing. The dispute relates only to Plot number 55 Chaka Market, and land parcel number Nyeri/Lusoi/327. The court divided the dispute into two. The dispute was divided into Plot number 55 Chaka Market and land parcel number Nyeri/Lusoi/327 on one side, and other properties on the other side. 18.The protestor did not have a dispute over the rest of the property. Regarding Plot number 55 Chaka Market, and land parcel number Nyeri/Lusoi/327, she was of the view that they should be in her name and not with her children. The first house had no claim to the two. I set aside viva voce evidence and directed that the court was to decide how the land to be given to the second house was to be presented. 19.The death certificate for the deceased indicates that he died from hepatic failure secondary to hepatocellular carcinoma. The medical explanation from the medical dictionary was that the disease ordinarily progresses from chronic liver inflammation to fibrosis, then cirrhosis, culminating in hepatic failure. In its advanced stages, it may be accompanied by coagulopathy and hepatic encephalopathy, conditions that significantly impair both physical and cognitive functioning and may ultimately result in death. 20.In those circumstances, the allegation that the deceased was lucidly making detailed testamentary wishes barely two weeks before his death must be approached with considerable caution. Given the advanced stage of the illness and its known clinical manifestations, such an assertion required cogent and convincing evidence. Without such evidence, the court would be slow to accept the allegation at face value. 21.To show the lack of truth of the allegation, the wishes were never made known until recently. Nevertheless, when parties appeared before me, on enquiry I noted that there was no factual dispute involved. It was simply a question whether or not to use the wishes. On further interrogation, I noted there was no dispute on shares for each of the parties. It was on characterization. In other words, the remaining widow simply wanted to disinherit her own children. There was no dispute with the first house. I also noted that what the parties suggested to be given to the second house had not been listed in Form P &A 5. 22.The first dispute I must resolve is whether plot number 55 Chaka Market is still part of the estate of the deceased. It was sold by the remaining widow in the year 2000. This was 26 years ago. Whichever decision I make, the plot has gone by virtue of the doctrine of nec vi, nec clam, nec precario. In the case of Isaac Cypriano Shingore v Kipketer Togom [2016] KECA 656 (KLR), the Court of Appeal [MARAGA, GATEMBU & MURGOR, JJ.A.] posited as follows in addressing limitation in respect of the deceased’s property:1.By the time the respondent filed the originating summons in November 2006, he had been in possession of the property for about 24 years. Even by the time the appellant became registered as proprietor by transmission on 28th April 2000, the appellant had been in occupation of the property for about 18 years. No attempts were made by the appellant over all those years to assert title. There is no merit in the argument by the appellant that the objection proceedings in the succession cause by the respondent and the complaint by the respondent before the Land Disputes Tribunal had the effect of interrupting the respondent’s possession of the property. We are unable to appreciate how steps taken by the respondent to assert his claim to the property can be construed as steps by the appellant to assert his right to ownership of the property.14.As the Court held in Githu Vs. Ndeete [1984] KLR 776 “Assertion of right occurs when the owner takes legal proceedings or makes an effective entry into the land; see Cheshire’s Modern Law of Real Property, 11th edition at p 894. In my view the giving of notice to quit cannot be an effective assertion of right for the purpose of stopping the running of time under the Limitation of Actions Act.” In Mount Carmel Investments Ltd vs. Peter Thurlow Ltd and another [1988] 3AII ER 12g, the Court of Appeal, in England, held:“The mere assertion by the true owner of a claim to possession of land in a letter sent to a squatter was not sufficient to prevent the squatter obtaining title by adverse possession. Accordingly, the letter sent to the defendants by the plaintiff’s solicitors did not have the effect of causing the defendants to cease to be in possession for the purposes of acquiring title by adverse possession.”See also the law of Real Property by R. Megarry, Sweet & Maxwell, 2012 at para 35–7. The letter dated 17/8/2005, written on behalf of the appellant demanding that the respondent should vacate the property, was therefore not sufficient to prevent the Respondent obtaining title to the property by adverse possession. In effect the respondent was in continuous, uninterrupted and exclusive possession of the property. 23.The court therefore finds that the second house has already sold plot number 55. It cannot be recovered back to the estate due to effluxion of time. It shall be assigned to the second house but for the benefit of the purchaser. 24.The deceased had two wives: Susan Wambui Nganatha, who is deceased and Rosemary Wanjiru Nganatha. This appears to be serial monogamy, where the first widow died, and the current widow was married. The distribution of his estate is thus guided by section 40 of the Law of Succession Act as follows:Where the intestate was polygamousa.Where an intestate has married more than once under any system of law permitting polygamy, his personal and household effects and the residue of the net intestate estate shall, in the first instance, be divided among the houses according to the number of children in each house, but also adding any wife surviving him as an additional unit to the number of children.b.The distribution of the personal and household effects and the residue of the net intestate estate within each house shall then be in accordance with the rules set out in sections 35 to 38. 25.The co-administrator suggested the bicycle be given to the remaining widow. It is part of household goods, and it shall be. Only two aspects of the first house’s subdivision did not make sense and cannot be registered. That is in respect of Land Parcel No. Nyeri/Warazo/217. The same is indicated to be divided into two, and then everyone is sharing. I reject such a suggestion. In Land Parcel No. Nyeri/Warazo/219, the children of the first house are sharing albeit not equally. Why the land is to be subdivided further and shared many times is beyond comprehension. In the case of David Sironga Ole Tukai v Francis Arap Muge & 2 others [2014] KECA 155 (KLR), The Court of Appeal posited as follows regarding uneconomic subdivisions:The reason behind the above stringent provisions of the Act is to be found, in our view, in the rationale of the land control legislation. Before enactment in its present form, the Land Control Act had existed in one form or another in the colonial period. Writing on a previous version of the same law namely, the Land Control (Native Lands) Ordinance (No. 28 of 1959), the eminent Kenyan legal scholar, the late Prof. HWO Okoth Ogendo captured the purpose of the legislation thus:“The purpose of the Land Control (Native Lands) Ordinance was to protect uninitiated peasants from improvident use of their rights under the new tenure system. Even though individualization was seen as necessary precondition to the planned development of the African areas, it was also appreciated that it could lead to many other problems more difficult to solve than the ones it was intended to eliminate. The Royal Commission had warned, for example, that in many peasant communities individualization had led to ‘the emergence of a chronic state of indebtedness, the continued fragmentation of holdings and the unproductive accumulation and holding of land by a few individuals in circumstances of little income-earning opportunity for those who have parted with the land’ ”.(See Tenants Of The Crown, Acts Press (1991) page 74).What is beyond doubt, the paternalistic nuances of its colonial origins notwithstanding, is the fact that the enactment of the Land Control Act in 1967 was informed by noble and deliberate public policy considerations. The Act seeks to regulate transactions in agricultural land, to among other things avoid sub-division of land holdings into uneconomical units, thus undermining agricultural production; to mitigate the danger of landlessness inherent in unchecked sale and alienation of land; to control land holding by non-Kenyans, etc. It is for these reasons that in considering whether to grant or refuse consent regarding dealings in agricultural land, the land control board is obliged under the Act to consider, among others, such factors as the economic development of the land in question, the possibility of maintenance or improvement of standards of good husbandry; the agricultural land already owned by the proposed transferee; the fairness or unfairness of the proposed consideration or purchase price; and whether subdivision of the land in question would reduce the productivity of the land. 26.I decline to allow skewed and multifaced subdivision of the land parcel of Land Parcel No. Nyeri/Warazo/219. The same shall be shared equally among the children of the first house. 27.Consequently, the estate of the deceased will be distributed in accordance with paragraph 5 of the supporting affidavit, with the amendments as indicated above. 28.The grant is accordingly confirmed. The administrators shall distribute the estate within six (6) months from the date of this judgment in accordance with section 83 of the Law of Succession Act, which imposes upon personal representatives the duty to complete the administration of the estate within the period prescribed by law. The relevant part provides as follows:Personal representatives shall have the following duties-a.…b.…c...d.…e.….f.subject to section 55, to distribute or to retain on trust (as the case may require) all assets remaining after payment of expenses and debts as provided by the preceding paragraphs of this section and the income therefrom, according to the respective beneficial interests therein under the will or on intestacy, as the case may be;g.within six months from the date of confirmation of the grant, or such longer period as the court may allow, to complete the administration of the estate in respect of all matters other than continuing trusts, and to produce to the court a full and accurate account of the completed administration.h.to produce to the court, if required by the court, either of its own motion or on the application of any interested party in the estate, a full and accurate inventory of the assets and liabilities of the deceased and a full and accurate account of all dealings therewith up to the date of the account;i.To complete the administration of the estate in respect of all matters other than continuing trusts and if required by the court, either of its own motion or on the application of any interested party in the estate, to produce to the court a full and accurate account of the completed administration. 29.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) had this to say:“It is our finding that the position in law is that costs are at the discretion of the court seized 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. 30.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), 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. 31.The matter ended cordially. Each party will bear their own costs. Determination 32.In the upshot, I make the following orders:a.The Summons for Confirmation of Grant dated 5th June, 2025 be and is hereby confirmed.b.A certificate of confirmation of grant to issue forthwith as follows:i.Land Parcel No. Nyeri/Warazo/219 - 5.26 haa.Jane Wangui Nganatha - 0.5058 hab.Titus Kagiri Nganatha - 0.8094 hac.Phoeby Wanjira Nganatha - 0.5058 had.Faith Njoki Nganatha - 0.5058 hae.Eusevio Karugu Nganatha - 0.8094 haf.Edward Kamotho Nganatha - 0.8094 hag.Rose Kagure Nganatha - 0.5058 haii.Land Parcel No. Nyeri/Warazo/217 (2.83 hectares) to be shared equally among the following:a.Rose Kagure Nganatha- 0.4042 hab.Jane Wangui Nganatha- - 0.4042 hac.Faith Njoki Nganatha- - 0.4042 had.Phoeby Wanjira Nganatha- - 0.4042 hae.Eusevio Karugu Nganatha- - 0.4042 haf.Edward Kamotho Nganatha-- 0.4042 hag.Titus Kagiri Nganatha- -0.4042 haiii.Land Parcel No. Tetu/Unjiru/246(0.60 ha).a.Rose Kagure Nganatha - 0.15 hab.Jane Wangui Nganatha - 0.15 hac.Faith Njoki Nganatha - 0.15 had.Phoebe Wanjira Nganatha - 0.15 hac.½ share in plot number 12 Kagogi - Eusevio Karugu Nganatha.d.Motor vehicle Registration No. KTZ xxxx Datsun 1200 - Rosemary Wanjiru Nganatha.e.The deceased’s interest in ½ share in NYERI/LUSOI/327 to be registered in the names of Rosemary Wanjiru Nganatha, who shall have life interest and thereafter to be shared equally among the following:a.Janet Wakarima Nganathab.Esther Wanjiku Nganathac.Juliana Wambui Nganathad.Emma Wachera Nganathaf.Plot Number Chaka Plot No. 55 is assigned to the second house, for avoidance of doubt, Rosemary Wanjiru Nganatha. The same should be transferred by the administrators to the purchaser.g.Munungaînî Shares - Margaret Wachuka Ndumia, Esther Nyaguthii Ndumia, Susan Wambui Nganatha, Catherine Esther Wanjiku Ndumia, and Philip Nganatha Ndumia equally.h.Laikipia/Tigithi/Block III/374(Matanya) - to be sold to cater for administration expenses. The remainder to be shared equally among all the 11 beneficiaries, that is, James Nganatha Ndumia, Titus Mwangi Nganatha, Eusevio Karugu Nganatha, Edward Kamotho Nganatha, Charles Ndirangu Nganatha, Jane Wangui Nganatha, Phoeby Wanjira Nganatha, Faith Njoki Nganatha, Rose Kagure Nganatha, Rosemary Wanjiru Nganatha, Janet Wakarima Nganatha, Esther Wanjiku Nganatha, Juliana Wambui Nganatha, Emma Wachera Nganatha.i.Nation Media Group Old Shares 270 to be shared equally among the following:a.Janet Wakarima Nganathab.Esther Wanjiku Nganathac.Juliana Wambui Nganathad.Emma Wachera Nganathaj.Vehicle registration number KTZ xxxx, make Datsun 1200 - Rosemary Wanjiru Nganatha.k.Bicycle Make Larger -Rosemary Wanjiru Nganatha.l.Plot No. 85 Maki-Maajabu to be shared in common among the following:a.Janet Wakarima Nganathab.Esther Wanjiku Nganathac.Juliana Wambui Nganathad.Emma Wachera Nganatham.Each party to bear their own costs.n.The administrators to conclude transmission within 6 months. The matter be mentioned on 3.02.2027, before the Deputy Registrar, to confirm conclusion of transmission. DELIVERED, DATED AND SIGNED AT NYERI ON THIS 23RD DAY OF JULY THE YEAR OF OUR LORD TWO THOUSAND AND TWENTY-SIX. RULING DELIVERED THROUGH MICROSOFT TEAMS ONLINE PLATFORM.KIZITO MAGAREJUDGEIn the presence of: -Mr. Macharia for the PetitionerNo appearance for the ProtestorCourt Assistant – Timothy