https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11809
The protest failed because the protestor did not prove that his mother was ever married to the deceased under Kikuyu customary law or any statutory regime, and the evidence showed the deceased's only recognized wife was Susan Wanjiru Gatubi; accordingly, the protestor had no basis to upset the proposed distribution...
Source-derived case information.
- Citation
- [2026] KEHC 11809 (KLR)
- Parties
- Petitioner: Susan Wanjiru Gatubi; Protestor: David Macharia Gatubi
- Court
- High Court
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 252 of 1995
- Procedural Posture
- Succession Cause Protest to Confirmation of Grant / Ruling on Protest and Confirmation of Grant
- Outcome
- Protest dismissed; grant confirmed
- Judges
- ["M Muya"]
- Legal Topics
- Confirmation of Grant, Protest to Proposed Distribution, Validity of Alleged Second Marriage, Kikuyu Customary Marriage, Beneficial Entitlement in Intestacy, Delay in Lodging Protest
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Susan Wanjiru Gatubi
Petitioner
David Macharia Gatubi
Protestor
Procedural Posture
Succession Cause Protest to Confirmation of Grant / Ruling on Protest and Confirmation of Grant
Legal Issues
- 1 Whether the mother of the protestor was legally married to the deceased under Kikuyu customary law or statutory law
- 2 Whether the protestor established a basis to be included among the beneficiaries of the estate
- 3 Whether the proposed distribution in the summons for confirmation of grant should be disturbed
Ratio Decidendi
The protest failed because the protestor did not prove that his mother was ever married to the deceased under Kikuyu customary law or any statutory regime, and the evidence showed the deceased's only recognized wife was Susan Wanjiru Gatubi; accordingly, the protestor had no basis to upset the proposed distribution and the grant was confirmed.
Court Disposition
Protest dismissed; grant confirmed
Orders
- The protest is dismissed.
- The grant dated 28th May, 2015 is confirmed.
Full Case Text
Judgment text and source record
1 paragraphs
**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT NYERI** **SUCCESSION CAUSE NO. 252 OF 1995** **IN THE MATTER OF THE ESTATE OF GATUBI NJAIRIA (DECEASED)** **SUSAN WANJIRU GATUBI ....................................................................PETITIONER** **VERSUS** **DAVID MACHARIA GATUBI ................................................................PROTESTOR** **R U L I N G** The petitioner herein filed summons for confirmation of grant dated 28th May, 2015 seeking distribution of Parcel No. Lower Muhito/Mutundu/300 measuring 7.8 acres to be shared amongst the following beneficiaries; 1. Cyrus Muchiri Muturi - 2.3 acres 2. Lucy Muthoni Muhiu - 2.3 acres 3. Susan Wanjiru Gatubi - 0.8 acres 4. Flesher Wangari Muturi – 0.6 acres 5. Peter Muturi Njoki - 0.6 acres 6. Stephen Muhiu Wairimu -0.4 acres 7. Cyrus Muchiri Wairimu - 0.4 acres 8. Simon Ndegwa Wairimu – 0.4 acres Being aggrieved by this mode of distribution the protestor filed an affidavit of protest sworn on 31st May, 2024 wherein she proposed Land Parcel No. Lower MUHITO/MUTUNDU/300 to be distributed in the following manner; **1st House** i. Lucy Muthoni Muhiu ii. Cyrus Muchiri Muturi iii. Flesher Wangari Muturi iv. Peter Muturi Njoki v. Stephen Muhiu Wairimu vi. Simon Ndegwa Wairimu vii. Cyrus Muchiri Wairimu **2nd House** i. David Macharia Gatubi ii. Teresia Wairimu Gatubi iii. Paul Mwangi Gatubi iv. Francis Wachira Gatubi v. Martha Wangu Gatubi vi. Joseph Ngatia Gatubi vii. John Njogu Gatubi The main issue in this protest is whether there was any marriage either under Kikuyu customary law or statutory between the mother of the protestor and the Deceased. It is not in dispute that the deceased died on the 25th day of April, 1978. An introductory letter by the Chief dated 7th February, 1995 shows that *Susan* *Wanjiru Gatubi* was the only wife of the Deceased. The protestor is a son of one *Eliana Mumbi* the alleged second wife of the Deceased. The protestor alleges that the Deceased married his mother in the year 1971 and dowry was paid. He concedes never to have lived and or stayed in the disputed land. In the year 2018 they went to the chief’s office together with members of the 1st house for purposes of claiming their portion of the Deceased Estate. The protestor states that he was later surprised to learn that the petitioner had filed the present petition. This petition was filed way back in the year 2015. The protest was filed on 31st May, 2024 a duration of a years after the filing. The Deceased passed on in the year 1978. The protestor showed up at the chiefs’ offices in the year 2018 which is a duration of close to 40 years. There is evidence which is conceded that the protestor has never lived in the disputed land. The evidence of the alleged marriage between his mother and the Deceased is very scarcity. It is alleged that she was married under Kikuyu customary law. There is no evidence of the said marriage in any form or manner. This protest has no merit and it is dismissed. The grant dated 28th May, 2015 is hereby confirmed. Certificate to issue. **RULING DELIVERED** virtually this 8th day of May, 2026. \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_ **MARTIN M. MUYA** **JUDGE** **In the Presence of:** Mrs. Wambui – For the Protestor Muhoho – For the Petitioner Court assistant – Isack Molu