In re Estate of Joel Njiru Hezekiah Ndwiga (Deceased) (Succession Cause E020 of 2021) [2026] KEHC 5056 (KLR) (22 April 2026) (Judgment)

In re Estate of Joel Njiru Hezekiah Ndwiga (Deceased) (Succession Cause E020 of 2021) [2026] KEHC 5056 (KLR) (22 April 2026) (Judgment) Neutral citation: [2026] KEHC 5056 (KLR) Republic of Kenya In the High Court at Embu Succession Cause E020 of 2021 RM Mwongo, J April 22, 2026 Between Edwin Nwiga Njiru Muriithi 1st Administrator Elijah Gichangi Njiruh 2nd Administrator Felista Wawira Njiru 3rd Administrator and Hosea Nyaga Njiru Protestor Judgment Background 1.The deceased died on 13th August 2019. On 06th June 2022, a grant of letters of administration was issued jointly to the 3 administrators in the estate of the deceased. They filed summons for confirmation of grant dated 23rd February 2024, accompanied by a supporting affidavit through which they proposed a mode of distribution. Summons for confirmation of Grant 2.According to the summons for confirmation of grant, the deceased was survived by the following:1.Edwin Ndwiga Njiru Muriithi2.Ephraim Njiru Ndii.3.Violet Mutitu Njeru4.Humphrey Nyaga Njiru5.Hosea Nyaga Njiru6.Irene Njiru7.Margaret Murugi Njiru8.Elijah Gichangi9.Joshua Gitonga Njiru10.Felista Wawira Njiru 3.The administrators stated that the estate of the deceased comprised of the following properties:1.Land Parcel Number Kyeni/Mufu/792 measuring 1.348 Ha2.Land Parcel Number Kyeni/Mufu/T.22 measuring 0.05 Ha3.Land Parcel Number Gaturi/Githimu/2016 measuring 0.05 Ha4.Land Parcel Number Kyeni/Kathanjuri/T.1405.Nawiri Sacco Account Number 1XXXXXXXXX84 Estimated amount Kshs.45,000/=6.Equity Bank Account Number 0XXXXXXXXX42 Estimated amount Kshs.480,000/=7.ABSA/Barclays Bank Account Number unknown amount unknown.8.Post Bank Account Number 0XXXXXXXXX93 Estimated amount Kshs.45,000/=9.Shares in various Companies. 4.The administrator proposed that the estate be distributed as follows:1.Land Parcel Number Kyeni/Mufu/792 measuring 1.348Ha to be inherited by Edwin Ndwiga Njiru (1.048Ha) & Elijah Gichangi Njiruh, Joshua Gitonga Njiru and Felista Wawira Njiru (home compound in trust for the entire family-0.3Ha)2.Land Parcel Number Kyeni/Mufu/T.22 measuring 0.05Ha to be inherited by Margeret Murigi Njiru (0.05Ha)3.Land Parcel Number Gaturi/Githimu/2016 measuring 0.05Ha to be inherited by Irene Njiru (0.05Ha)4.Land Parcel Number Kyeni/Kathanjuri/T.140 to be inherited by Felista Wawira Njiru.5.Nawiri Sacco Account Number 1XXXXXXXXX84 Estimated amount Kshs.45,000/= to be held by the 3 administrators to cater for the succession expenses.6.Equity Bank Account Number 0XXXXXXXXX42 Estimated amount Kshs.480,000/= to be held by the 3 administrators to cater for the succession expenses.7.ABSA/Barclays Bank Account Number with amount unknown.8.Post Bank Account Number 0XXXXXXXXX93 Estimated amount Kshs.45,000/= to be held by the 3 administrators to cater for the succession expenses.9.Shares in various Companies to be inherited by Felista Wawira Njiru. The Protest 5.The protestor filed an affidavit of protest stating that he had been omitted from the summons for confirmation as a beneficiary to the estate yet he is also a son of the deceased. He prayed that the matter be referred to mediation so that he can be involved as an administrator. Under paragraph 7 of the protest, he listed the properties forming the estate of the deceased. That list is the same as the one produced by the administrators. However, he contended that he had been completely left out in the proposed mode of distribution. 6.He stated that the administrators are fully aware that he buried his child on Land Parcel Number Kyeni/Mufu/792 and he therefore claimed the land be subdivided into 2 portions and he be given the half of that land where his child’s grave is located. He also claimed a share of the monies held in Nawiri Sacco Account Number 1XXXXXXXXX84, Equity Bank Account Number 0XXXXXXXXX42, ABSA/Barclays Bank Account Number unknown and Post Bank Account Number 0XXXXXXXXX93. Response to the Protest 7.The administrators filed a reply to the protest stating that the respondent was given some properties by the deceased prior to his death and so he benefited from the estate already. That the deceased gave him parcel number Kyeni/Kigumo/6285 measuring 3 acres and that the said land is much bigger than other portions inherited by the other beneficiaries. That other siblings were also given land by the deceased prior to his death as follows: Violet Mutitu Njeru was given Kyeni/Kiaragana/T.95 which she developed, Margaret Murugi Njiru was given Kyeni/Mufu/T22, Felister Wawira Njiru was given Kyeni/Kathanjuri/T140 and Irene Njiru was given Gaturi/Githimu/2016. 8.Regarding the monies held in the bank accounts, they stated that the beneficiaries found it best to leave those amounts to the administrators to use for meeting succession expenses. They noted that the protestor disagreed with all the resolutions made at the family meetings where properties were given by the deceased prior to his death. He was also present at the meetings after the death of the deceased but he still disagreed with the resolutions of the beneficiaries on succession issues. 9.They stated that it was sensible to leave a portion of the home where they were raised, intact and under the care of Violet, Margaret and Felister, with each receiving 0.34Ha. In addition, the grave site measuring 0.33Ha would be registered in the names of the administrators to hold in trust for the rest of the family members. That the protestor lives nearest to the home and he has never been denied access to it as he visits frequently. 10.The administrators produced minutes of a family meeting held on 30th March 2024 as evidence. They stated that the unmarked grave of the protestor’s child is on the part of Kyeni/Mufu/792 which is set aside as a grave site for the whole family. That this property is not available for any further distribution given the resolutions of the beneficiaries. they also stated that the protestor is usually violent, confrontational, unaccountable and always feels entitled. 11.They disclosed that the protestor related very poorly with the deceased while he was s till alive and the deceased could not trust the protestor with any assignment. That the protestor was determined to misappropriate the deceased’s wealth before he died. They stated that the monies held in the various bank accounts should be given to their youngest sister Felister since this was their mother’s last wish. Hearing of the Protest 12.The protest was heard viva voce. 13.PW1 was the protestor. He stated that before his death, the deceased had given plot number Gaturi/Githimu/2016 to him and Irene Muthoni to share equally, but Irene started constructing on it by herself. That he did not know that the administrators were proceeding with the succession proceedings. He stated that his brother sold a motor vehicle which his father left him. That he buried his late son on Kyeni/Mufu/792 on a side of the property which his father had given to him. He stated that none of the administrators told him how much money was being held in the accounts or what was happening towards initiating succession proceedings. He claimed that he had been given half of Kyeni/Mufu/792 and Felister was given the other half although no survey had been done. 14.On cross-examination, the court noted that the witness was contentious. He denied being present at the meeting according to the minutes of the family meeting held on 2nd January 2021. He denied that the motor vehicle was sold to raise money for settling a hospital bill for their mother. That the deceased had money in the bank accounts for that. He stated that when the deceased began ailing, his wife was helped by the family to relocate closer home to support the deceased. That he lives 25km away from the Kaithenge home but he used to visit his ailing parents. 15.He stated that the value of parcel number Kyeni/Kigumo/6285 is much smaller than what the administrators have disclosed. That the value of Gaturi/Githimu/2016 is Kshs.10 million and Irene has built on that land yet the deceased had said that he be given half of it. He stated that he did not know anything that was being done towards administration of the estate of the deceased and no one explained it to him. He stated that he wants to be given the piece of land where his son was buried. 16.RW1 was the 1st administrator. He stated that Kyeni/Mufu/792 is the homestead of the deceased where he was also buried. That all the sons of the deceased were given land as stated in paragraph 7 of the affidavit in support of the summons for confirmation of grant. That it was the wish of the deceased that his daughters should inherit the homestead land and the grave site should be left to the administrators on trust. He relied on page 2 of the minutes of the family meeting held on 30th March 2024 where the issue of succession was discussed. He stated that at the meeting, it was agreed that the daughters of the deceased would get equal shares of Kyeni/Mufu/792. 17.He highlighted the details of the minutes as to distribution of the estate and noted that the protestor had already received land from the deceased before he died. He stated that none of the beneficiaries who received land from the deceased before he died, had the land transferred to their names although they took possession of it. On cross-examination, he stated that all the children, except the protestor, contributed to buy the deceased a vehicle which the protestor took without permission. That the deceased gave the protestor a 3-acre piece of land although his deceased child was buried on Kyeni/Mufu/792. That the family pooled efforts to bring the protestor’s wife home from Ukambani at the time of burying his deceased child. 18.It was also his evidence that in 2012 the protestor forced the deceased to the Land Control Board several times to coerce him to subdivide the land but the deceased faced the Board and declined to subdivide. He had receipts to prove this. He stated that when the deceased placed the protestor in charge of some rental properties in Embu town, the protestor mismanaged the place and misappropriated the rental income. This is the same property which the deceased gave to Irene because she had helped to develop it while the deceased was still alive. Parties’ Submissions 19.In his written submissions, the protestor stated that he is entitled to half of Kyeni/Mufu/792 where his child was buried. That the other half can be given to his sisters Felister, Margaret, Violet and Irene. He submitted that the name of the deceased as proprietor of parcel number Gaturi/Githimu/2016 is captured with an error and so he had escorted his father to the Land Control Board to have the error rectified. He insisted that he should be given a share of the money in the various bank accounts. He prayed that their parents’ wish that land parcel number Kyeni/Kathanjuri/T.140 should be given to Irene Muthoni Njiru be honoured. He stated that the estate of the deceased should be shared equally amongst all the children. 20.The administrators submitted urging the court to uphold the mode of distribution proposed in the supporting affidavit to the summons for confirmation of grant. They relied on the minutes of a family meeting held on 2nd January 2021 which the protestor attended as the Vice Treasurer. That the protestor related poorly with the deceased but he still gave him land which is bigger than the land which the other beneficiaries have proposed to inherit. They denied that the deceased ever intended to give the protestor a part of the Kaithege home where he lived. 21.They asserted that the family helped to procure a transfer for the protestor’s wife to move closer to home to support their ailing parents but the protestor declined this move. As a result, the 1st protestor took his parents to his Nairobi home and cared for them. They also relied on the testimony by RW1 that the protestor misappropriated rental income from the deceased’s rental properties in Embu Town. As such, he cannot claim any part of the said property since it was developed through the efforts of the deceased and Irene Muthoni Njiru. They argued that there was no basis for the protestor to claim a part of this property Gaturi/Githimu/2016. 22.They argued that the protestor received a gift inter vivos from the deceased prior to his death, which gift is more valuable than any proposed inheritance to other beneficiaries. On inter vivos gifts, they relied on section 42 of the Law of Succession Act and the cases of In the matter of the Estate of Mwaura Mutungi alias Mwaura Gichigo Mbura alias Mwaura Mbura (deceased) Nairobi HCSC No. 935 of 2003, In re Estate of Gideon Karanja (Deceased) [2020] eKLR and Rono v Rono & another [2005] KECA 326 (KLR). They urged the court to uphold the proposed mode of distribution as it is fair and equitable. Issues for Determination 23.The issues for determination are:1.Whether land parcel number parcel number Kyeni/Kigumo/6285 measuring 3 acres should be regarded as a gift inter vivos to the protestor:2.How should the estate of the deceased be distributed? Analysis and Determination 24.Evidence has been led to the effect that the deceased gave the protestor land parcel number Kyeni/Kigumo/6285 prior to his death. The administrators have submitted that this was a gift inter vivos and they have urged the court to consider it as such. In the case of Ngugi v Mukuria [2025] KEHC 11395 (KLR), the court stated as follows:“It is a cardinal rule in our jurisprudence that the right to dispose of property by will or gift is exacting in its requirement as observed by Nyamweya J. (as she then was) in Re: Estate of the Late Gedion Manthu Nzioka (deceased) [2015] eKLR where she stated as follows:“In Law, gifts are of two types (gift 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 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.”” 25.Section 42 of the Law of Succession Act provides for gifts inter vivos 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.” 26.This provision has been interpreted by the court to mean that when a beneficiary receives a gift from the deceased prior to his death, and where the gift is defined as a gift inter vivos, the same must be perfected/ transferred to such beneficiary. Eventually, after the death of the deceased who gave a gift inter vivos, that gift is supposed to be considered in determining the net estate of the deceased before distribution. 27.In both the summons for confirmation and the protest, the list of properties for distribution is the same. The property Kyeni/Kigumo/6285 does not feature anywhere in the lists provided and the protestor is also not included in the list of distributed properties. The protestor did not deny that the named property was given to him as a gift. In fact, in his testimony, he stated that he indeed received the property from the deceased, although he contended that its value is not as high as stated by the administrators. This evidence, and the fact that both sides are in agreement, settles the fact that the property was given by the deceased to the protestor before his death and the protestor settled therein. 28.Therefore, it may be treated as a gift inter vivos which must be considered in determining the net estate of the deceased. In the same case of Ngugi v Mukuria (supra), Ouya, J. stated thus:“The characteristics of the gifts inter vivos are that they are made and settled during the lifetime of the deceased and have been identified, awarded and settled for the person to whom it has been given. It is a gift made to a beneficiary when the deceased was alive and is considered when distributing the net intestate estate so that person who received it may be considered as having received his share and may reduce or diminish any entitlement to the net intestate estate. The gift which is transferred and settled for the beneficiary during the life-time of the deceased, will not form part of his estate but it will be taken into account in determining the share of the net intestate estate finally accruing to that beneficiary.” [Emphasis added] 29.In proposing the mode of distribution, the administrators would have done right to include this property and explain that it was given to the protestor, their sibling, by the deceased before his death. However, since this has arisen through evidence, no detriment is suffered as the court is now satisfied that it was a gift inter vivos. It then follows that the net estate of the deceased comprises of the properties named under paragraph 6 of the affidavit in support of the summons for confirmation and under paragraph 7 of the protest. 30.Distribution of the net estate is guided by section 38 of the Law of Succession Act as follows:“Where an intestate has left a surviving child or children but no spouse, the net intestate estate shall, subject to the provisions of sections 41 and 42, devolve upon the surviving child, if there be only one, or shall be equally divided among the surviving children.” 31.The administrators produced minutes of a meeting held on 30th March 2024 indicating that all the named beneficiaries were in attendance, including the protestor. The protestor is recorded to have objected to the resolutions reached regarding parcel number Kyeni/Mufu/792. 32.They also produced another set of minutes of a meeting held on 2nd January, 2021, in which the protestor was in attendance. In those minutes, the protestor stated that he had been given 1 acre on Kyeni/Mufu/792 and the deceased had initiated the subdivision process. Later, the deceased informed him that he had abandoned the process because some siblings were dissatisfied. It emerged from the minutes that the deceased had a change of heart about giving the protestor a part of that property because he had refused to help in caring for him while he was sick. 33.In that meeting, the 1st administrator stated that towards the end of his life, the deceased stated that he wished that his home located on land parcel number Kyeni/Mufu/792 shall have within it the grave site for the family. The deceased also communicated his other wishes. The members present at the meeting voted on the question of whether the protestor ought to be given 1 acre out of Kyeni/Mufu/792. The protestor voted for while 6 of his siblings voted against. 2 siblings abstained. On the issue of the protestor’s interest in Gaturi/Githimu/2016, the family voted on whether the protestor should be given a piece of that property. The protestor voted for and his 9 siblings voted against him being given a part of that property because of his conduct and the wishes of the deceased. 34.The protestor’s case is that he was denied a part of Kyeni/Mufu/792 where his child was buried. He also claimed a piece of Gaturi/Githimu/2016 which has rental houses. From the evidence adduced, PW1, the protestor, stated that the deceased had intended that he gets a piece of that property. In cross-examination, he stated that his sister had taken the rental property and developed it without including him even though that was the wish of the deceased. RW1 testified that the conduct of the protestor towards the deceased made him change his mind and he even removed the protestor from management of that property. The minutes produced as evidence indicated that the protestor’s siblings voted against him getting any part of Kyeni/Mufu/792 and Gaturi/Githimu/2016. 35.The evidence adduced proves that Irene Muthoni developed Gaturi/Githimu/2016 while the deceased was alive and even after he died. That she continued to maintain it and manage it to remain productive. As for Kyeni/Mufu/792, the minutes indicated that the deceased had planned to give the protestor a part of it but he changed his mind later because of how poorly the protestor related with him. 36.The acknowledgment of the wishes of the deceased on distribution of his properties is reflected in the mode of distribution proposed by the administrators to the court. The courts have severally upheld such wishes of a deceased person, not because he left a valid will, but because the beneficiaries have chosen to go by those wishes upon intestacy. In other words, the wishes of a deceased person offered a guide for the beneficiaries on distribution of the estate. 37.For a succession court, determination and distribution of an estate should be done in a just manner to attain equality in the eyes of the law. If this equality can be attained through a consent by the beneficiaries and parties, even better. Another way to attain equality is for the court to consider the evidence on a balance of probabilities and to reach a just and equitable distribution of the estate. 38.In the cases of Martha Wanjiku Waweru v Mary Wambui Waweru [2007] KEHC 1655 (KLR) and In Estate of Stanley Kori Kiongo Alias Kori Kiongo-Deceased [2016] KEHC 1752 (KLR) as cited in the case of Ongawa v Ocharo [2026] KEHC 3443 (KLR), the courts were guided by the wishes of the deceased in distributing the various estates. 39.That being said, it is evident that the deceased gave the protestor a gift inter vivos during his lifetime. The deceased intended to give the protestor parts of Kyeni/Mufu/792 and Gaturi/Githimu/2016 but he changed his mind. This was buttressed by the evidence adduced that the protestor related poorly with the deceased during his lifetime, more so towards the end of his life. Further, the fact that the deceased retracted his choice to place the protestor as manager over Gaturi/Githimu/2016 and replaced him with his sister Irene, speaks to the deceased’s intention. On a balance of probabilities, the evidence demonstrates that the protestor is not entitled to any part of Gaturi/Githimu/2016. 40.Regarding Kyeni/Mufu/792, the deceased’s home, the administrators have proposed that there be left a gravesite which will be maintained for posterity. The protestor stated that he has no problem with his sisters taking the portion of that land which the administrators had proposed to be taken by these sisters. 41.However, he claimed the remaining portion because his child was buried on it. That part of the land has a grave site and the protestor’s child is not the only one buried there. Therefore, upon due consideration, it makes more sense to reserve that part of Kyeni/Mufu/792 under the estate as proposed to be held by the administrators in trust as a common grave site for the whole family. To this end, the protestor’s claim over that part of the land has no foundational justification. 42.All in all, the protestor has been provided for from the wealth of the deceased through a gift inter vivos. Being a recipient of that gift in this particular case, diminishes his claim over any other part of the estate as such claim is not justified, given the evidence adduced. 43.On the question of monies held in the bank accounts, the protestor claimed a portion of these monies. The administrators asserted that the monies would be used to cater for succession expenses and to renovate the grave site. There is no evidence that these uses will not benefit all the beneficiaries at the end of the day. To that end, these proposed uses of these monies amount to equal distribution of the same under the Law of Succession Act. Disposition 44.In light of the foregoing discussion, I find that the protest lacks merit and it is hereby dismissed. The mode of distribution proposed under paragraph 7 of affidavit in support of the summons for confirmation of grant dated 25th April 2024 is hereby equally allowed. 45.The court hereby orders that a certificate of confirmation of grant be issued forthwith indicating the distribution proposed by the administrator in the summons. 46.Orders accordingly. DELIVERED, DATED AND SIGNED AT EMBU HIGH COURT THIS 22ND DAY OF APRIL, 2026.R. MWONGOJUDGEDelivered in the presence of:Odawa for Administrator – coming on record lateHosea Nyaga Njiru – Protester in Person in CourtStella Kithinji - Court Assistant