https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7659

In re Estate of Mary Wanjiru Kibara (Deceased) (Succession Cause 457 of 2004) [2026] KEHC 7659 (KLR) (28 May 2026) (Ruling) Neutral citation: [2026] KEHC 7659 (KLR) Republic of Kenya In the High Court at Nyeri Succession Cause 457 of 2004 DKN Magare, J May 28, 2026 IN THE MATTER OF THE ESTATE OF THE LATE MARY WANJIRU KIBARA (DECEASED) Between James Muraya Kibara 1st Applicant Jelius Wanjiku Wahome 2nd Applicant and John Kibara Wahome Respondent Ruling 1.There will never be an end to greed, subterfuge and skullduggery. This ruling is in respect of the summons for revocation of grant filed on 12.01.2018. It sought that a grant that had been issued on 10.11.2016 be annulled. The application is deceptively recent. There was a similar application filed by the first applicant for revocation of grant 20 years ago, but the administrator died in between. The respondent moved the court for confirmation. This was done on 10.11.2016. The first applicant now involved the second wife to the late administrator, his mother, the second applicant, to file the application. 2.After confirmation of grant, the respondent filed an application for the Deputy Registrar to sign transmission documents. The first applicant responded to the same on 10.1.2018. He stated that during her lifetime, the deceased herein indicated that the sharing was to be 2.4 acres for James Muraya Kibara and 1 acre for Charles Wahome Kibara. 3.Charles Wahome Kibara had been given land parcel number Naromoru/Block 2/Muriru/73 as a gift inter vivos and he sold the same to Charles Ngumo Kania to whom it was transferred directly by their father. For that reason Charles Wahome Kibara was to get 1 acre as refuge from Ngarua, where Naromoru/Block 2/Muriru/73 is situate. 4.The application was also supported by an affidavit of Gladys Wamuyu Mwangi, who repeated the same story as the other two applicants. The application was opposed. Parties proceeded by way of viva voce evidence. I only heard defence evidence. PW1 and PW2 were heard before Justice Nyaga J. PW3 testified before Justice Muya on 13.10.2022. 5.PW1 was James Muraya Kibara. He testified that Jelius Wanjuku Wahome was a wife of Charles Wahome Kibara, the original petitioner. He stated that Charles Wahome Kibara was living in Kinanga, Laikipia before he died. The dispute in court was in relation to Land parcel number Aguthi/Gaki/1713. His father died in 1996. Succession was carried out and the land registered in the name of the mother. The father had another parcel which he gave to Charles Wahome Kibara who sold to Charles Ngumo. The father transferred the land directly to the buyer. He was not present when the land was sold. Charles Wahome Kibara returned to Ngarua after selling the land. The late father told the brothers that Charles Wahome Kibara was to get one acre while he was to get the rest. The instructions were given to the mother and not written. He stated that it was the children to Wahome who were to get one acre. 6.Wanjiku Kibara did not give any land to Charles Wahome Kibara. There was no written document on the sharing of the land. There was no document showing that Charles Wahome Kibara received money. He did not go to Naromoru. 7.PW2 was Gladys Wamuyu Kibara. She stated that Mary Wanjiku Kibara is her mother. Jelius Wanjuku Wahome was the second wife of Charles Wahome. The late father had land in Naromoru and Aguthi Gaki. The late father gave instructions that children of Charles Wahome to get an acre. The rest was to go to James Muraya. Before the mother died she said that 2.4 acres should go to Muraya and one acre to Charles Wahome. She stated that Charles Wahome sold land in Naromoru. 8.On cross examination, she stated that the deceased did not give 2.4 acres to James Muraya and 1 acre to James when she registered the land. The land was registered in her name. The land in issue is in the name of Mary Wanjiru Kibara. She did not give any land to the parties. The instructions on the parcels were not written down. Two sisters were present but they are both dead. She did not agree that the land should be shared equally. 9.PW3 was Jelius Wanjiku Wahome from Sipili, Laikipia. She knew the first applicant who was her brother-in-law. Her husband was Charles Wahome Kibara. The deceased herein had two son, the first applicant James Muraya and Charles Wahome Kibara, her husband. They are the ones who should be heirs. Charles Wahome Kibara is deceased. She wished that the Aguthi land be shared between houses; one acre to her house, other two acres to the other house. Monica’s house was given 2.7 acres. James Muraya’s share is 2.7 acres. 10.On cross examination, she stated that the land in Naromoru was given to Charles Wahome Kibara. She stated that it was Charles Wahome Kibara who sold to Ngumo. She was shown an agreement dated 5.3.1986 showing that it was sold by Kibara Wahome, the father to Charles Wahome Kibara. She stated that she had no contrary agreement. She stated that the deceased husband Charles Wahome Kibara, sold 1.7 acres to his relative. John Muraya did not buy land there. Monica, the respondent’s mother did not stay on the land. 11.She stated that John Maina Muraya is not an innocent purchaser. He has a house on the land. 12.DW1 was the respondent who testified that he prayed for equal distribution. He stated that the plot at Naromoru was sold by the grandfather. He stated that Jelius’s parcel is elsewhere. 13.On cross examination, it was stated that Jelius was staying elsewhere. He stated that he does not understand why the uncles were saying that they should be given only one acre. The parcel in Ngarua is no longer there having been sold by the grandfather. He stated that the mediation was on land parcel number 1713 and not on the consent. The land in Naromoru belonged to Charles Kibara who sold it. Submissions 14.The respondent filed submissions dated 6.5.2025. They submitted that there was no evidence that Charles Wahome Kibara had been given land parcel number Naromoru/Block 2/Muriru/73 as a gift inter vivos by the deceased or his father. 15.The respondent invited the court to rely on section 38 of the Law of Succession. 16.The applicants filed submissions dated 30.1.2025. They submitted that the distribution of land parcel number Aguthi/Gaki/1713 was made between two persons that is:a.Paul Muraya Kibara andb.James Muraya Kibara 17.They lamented that the sale took place on 1.08.2005 before confirmation on 2.06.2006. It was further submitted that the Land parcel number Aguthi/Gaki/1713 should have been distributed equally between the estate of the late Charles Wahome Kibara and James Muraya Kibara. 18.Being children of the late Kibara Wahome and Mary Wanjiku Kibara. There are few instances where the court may depart. This is in case of gifts inter vivos. Reliance was placed on section 42 of the Law of Succession. The same provides as thus: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 of this Act, that property shall be taken into account in determining the share of the net intestate estate finally accruing to the child, grandchild or house. 19.Thy submitted that the land belonged to the estate of the late Kibara Wahome and was transmitted to the estate of the deceased herein. The applicant always resided onto suit land while Charles Wahome resided in Sipiri Ngarua. Kibara Wahome also owned shares which resulted in being given land parcel number Naromoru/Block 2/Muriru/73. They then gave other reasons for the sale. This kind of submissions are not helpful. They introduce evidence at submission level. 20.Mwera J, posited as follows when postulating on what is the role of submissions. He stated that they are a course by which counsel or able litigants focus the court’s attention on those points of the case that should be given the closest scrutiny in order to firmly establish a claim. In the case of Nancy Wambui Gatheru vs. Peter W Wanjere Ngugi Nairobi HCCC No. 36 of 1993:“Indeed, and strictly speaking, submissions are not part of the evidence in a case. Submissions, to this court’s view, are a course by which counsel or able litigants focus the court’s attention on those points of the case that should be given the closest scrutiny in order to firmly establish a claim/charge or disprove it. Once the case is closed a court may well proceed to give its judgement. There are many cases especially where parties act in person where submissions are not heard. Even some counsel may opt not to submit. So submissions are not necessarily the case.” 21.Submissions are not, strictly speaking, part of the case, the absence of which may do no prejudice to a party. Their presence or absence does not in any way prejudice a case. As held in Ngang’a & Another vs. Owiti & Another [2008] 1KLR (EP) 749, the Court stated that:“As the practice has it and especially where counsel appears, a Court may hear final submissions from them. This, strictly speaking, is not part of the case, the absence of which may do prejudice to a party. A final submission is a way by which counsel or sometimes (enlightened) parties themselves, crystallise the substance of the case, the evidence and the law relating to that case. It is, as it were, a way by which the Court’s focus is sought to be concentrated on the main aspects of the case which affect its outcome. Final submissions are not evidence. Final submissions may be heard or even dispensed with. But the main basis of a decision in a case, we can say are: the claim properly laid, evidence fully presented and the law applicable.” 22.The Court of Appeal was more succinct in that Submissions cannot take the place of evidence when they addressed the question in the case of Daniel Toroitich Arap Moi vs. Mwangi Stephen Muriithi & Another [2014] eKLR:“Submissions cannot take the place of evidence. The 1st respondent had failed to prove his claim by evidence. What appeared in submissions could not come to his aid. Such a course only militates against the law and we are unable to countenance it. Submissions are generally parties’ “marketing language”, each side endeavouring to convince the court that its case is the better one. Submissions, we reiterate, do not constitute evidence at all. Indeed there are many cases decided without hearing submissions but based only on evidence presented.” 23.They prayed that the deceased Charles Wahome Kibara gets 1 acre while the first applicant gets 2.4 acres. Reliance was placed on the Caseo Kagina v Kagina case where the court stated as follows:We have revisited that rival position on the record and agree with the position taken by the Judge that a deceased person has capacity to divest himself of property during his lifetime known in law as gifts inter vivos which in the Judge’s opinion and correctly so in our view are not only protected under the Act but are also sanctionable by a court of law irrespective of whether they are perfect or imperfect. 24.They also addressed the share of the estate of the late Charles Wahome Kibara who was polygamous. They posit it should be shared under Section 40 of the Law of Succession, which states that:(1)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.(2)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.They prayed that the one acre be shared equally between the two houses. Analysis 26.The issue before me is a fairly simple one, whether the applicants have met the threshold for revocation of grant. Revocation of grant is provided for under section 76 of the Law of Succession Act as follows:A grant of representation, whether or not confirmed, may at any time be revoked or annulled if the court decides, either on application by any interested party or of its own motion-(a)that the proceedings to obtain the grant were defective in substance;(b)that the grant was obtained fraudulently by the making of a false statement or by the concealment from the court of something material to the case;(c)that the grant was obtained by means of an untrue allegation of a fact essential in point of law to justify the grant notwithstanding that the allegation was made in ignorance or inadvertently;(d)that the person to whom the grant was made has failed, after due notice and without reasonable cause either-(i)to apply for confirmation of the grant within one year from the date thereof, or such longer period as the court order or allow;or(ii)to proceed diligently with the administration of the estate; or(iii)to produce to the court, within the time prescribed, any such inventory or account of administration as is required by the provisions of paragraphs (e) and (g) of section 83 or has produced any such inventory or account which is false in any material particular; or(e)that the grant has become useless and inoperative through subsequent circumstances. 27.Some of the factors that delay succession matters is the failure to decide whether an estate is intestate or testate. Secondly is succession within succession. If the courts can be puritans and dissect succession matters in the said prisms then succession will be a one-off thing. 28.Section 8 of the Succession Act provides for both oral and written wills. Section 9 provides as follows in regard to oral wills:(1)No oral will shall be valid unless—(a)it is made before two or more competent witnesses; and(b)the testator dies within a period of three months from the date of making the will:Provided that an oral will made by a member of the armed forces or merchant marine during a period of active service shall be valid if the testator dies during the same period of active service notwithstanding the fact that he died more than three months after the date of making the will.(2)No oral will shall be valid if, and so far as, it is contrary to any written will which the testator has made, whether before or after the date of the oral will, and which has not been revoked as provided by sections 18 and 19. 29.On the other hand section 11 of the Succession Act provides as follows:No written will shall be valid unless-(a)the testator has signed or affixed his mark to the will, or it has been signed by some other person in the presence and by the direction of the testator;(b)the signature or mark of the testator, or the signature of the person signing for him, is so placed that it shall appear that it was intended thereby to give effect to the writing as a will;(c)the will is attested by two or more competent witnesses, each of whom must have seen the testator sign or affix his mark to the will, or have seen some other person sign the will, in the presence and by the direction of the testator, or have received from the testator a personal acknowledgement of his signature or mark, or of the signature of that other person; and each of the witnesses must sign the will in the presence of the testator, but it shall not be necessary that more than one witness be present at the same time, and no particular form of attestation shall be necessary 30.The foregoing are the tests to take in relation to a will and if the same does not fall under the two sections, parties must move to intestacy. This is covered under section 35-43 of the Law of Succession Act. Section 35 of the said Act provides as follows:(1)Subject to the provisions of section 40, where an intestate has left one surviving spouse and a child or children, the surviving spouse shall be entitled to-(a)the personal and household effects of the deceased absolutely; and(b)a life interest in the whole residue of the net intestate estate:Provided that, if the surviving spouse is a widow, that interest shall determine upon her re-marriage to any person.(2)A surviving spouse shall, during the continuation of the life interest provided by subsection (1), have a power of appointment of all or any part of the capital of the net intestate estate by way of gift taking immediate effect among the surviving child or children, but that power shall not be exercised by will nor in such manner as to take effect at any future date.(3)Where any child considers that the power of appointment under subsection (2) has been unreasonably exercised or withheld, he or, if a minor, his representative may apply to the court for the appointment of his share, with or without variation of any appointment already made.(4)Where an application is made under subsection (3), the court shall have power to award the applicant a share of the capital of the net intestate estate with or without variation of any appointment already made, and in determining whether an order shall be made, and if so, what order, shall have regard to-(a)the nature and amount of the deceased’s property;(b)any past, present or future capital or income from any source of the applicant and of the surviving spouse;(c)the existing and future means and needs of the applicant and the surviving spouse;(d)whether the deceased had made any advancement or other gift to the applicant during his lifetime or by will;(e)the conduct of the applicant in relation to the deceased and to the surviving spouse;(f)the situation and circumstances of any other person who has any vested or contingent interest in the net intestate estate of the deceased or as a beneficiary under his will (if any); and(g)the general circumstances of the case including the surviving spouse’s reasons for withholding or exercising the power in the manner in which he or she did, and any other application made under this section. 31.Before I address the question of testacy and intestacy it is import to issue a caveat that only pathological liars are expected to lie incessantly. It is rather embarrassing for persons to stand before the court, lie, knowing they are lying and expect the court to look at the multiplicity of lies and give them judgment. Some of the evidence given, the evidence of some of the witnesses, especially PW3, reminds me of the lamentations by Odunga J, as he then was, in Kioko Peter v Kisakwa Ndolo Kingóku [2019] KEHC 11387 (KLR) where he stated:….Parties and Counsel ought to give the court’s some credit that the courts are not manned by morons who can be easily duped into believing all manner of incredible stories with little or no iota of truth. It is these kinds of allegations that Madan, J (as he then was) had in mind when in N vs. N [1991] KLR 685 he expressed himself in the following terms:“I wish people would not tell me absurd and unbelievable lies. I feel disappointed if a lie told in court is not reasonable imitation of the truth and is not reasonably intelligently contrived. I wish people who tell lies before me would respect my grey hair even if they consider that my intelligence is not of high order. I wish the witness had not told me the most stupid of his lies, which both disappointed and made me feel intellectually insulted.”5.In the South African case of Matatiele Municipality & Others vs. President of the Republic of South Africa & others (1) (CCT73/05) (2006) ZACC 2: 2006 (5) BCLR (CC); 2006(5) SA 47 (CC) it was held that“In my view a person who deliberately either by commission or omission misleads the court and the public that a particular state of affairs exist while knowing very well that that is not the position cannot be said to be open, candid and transparent. Dishonest in my view is an Act which is antithesis to transparency and vice versa…” 32.Parties who lie, must do so with a reasonable expectation of belief; the lie should mimic the truth in so uncanny way that even the less gullible will fall for the same. However, lies that are blatantly out of this should be avoided as they just waste the court’s time. 33.The second applicant’s application is a waste of judicial time. The original grant was given to her husband. The sharing was by the husband. Consequently, she cannot question the application by husband through whom she claims. The second administrator did not change the ration but took over the application for grant from where the father left and effected titles. Accordingly, the second applicant’s application has no legs to stand on. It is consequently dismissed in limine. 34.The entire edifice of the summons for revocation are based on a lie. The deceased herein had only one asset, that is, Land parcel number Aguthi/Gaki/1713. She died intestate. Land parcel number Naromoru/Block 2/Muriru/73 did not belong to the deceased herein. It is thus irrelevant on who sold it. This is a question to be dealt with in the estates of James Kibara Wahome. In any case the same did not even form part of the estate of the late James Kibara Wahome who died in 1996. 35.Secondly the false belief that there were instructions relating to Land parcel number Aguthi/Gaki/1713, can easily be deconstructed and dismissed as hyperbole, surmise and subterfuge. In order to conceptualize, problematize and contextualize the dispute between the parties it is necessary to go back to the original sin. If there were instructions from the late James Kibara Wahome to the deceased herein, they would have been effected at the time of succession in the estate of the late James Kibara Wahome (Deceased). They were not effected and the only conclusion is that there were no such instructions. The land was then transmitted absolutely to the deceased herein. Nothing could have been harder than to note the interest of the two sons in the ratio proposed. 36.Thirdly, had the first applicant been keen on the alleged oral will, then he could have filed petitions for letters of administration with oral will. This was not done, the matter proceeded as an intestate matter. In that context rules of intestacy apply. All parties were of the view that there were only two persons entitled to inherit the said parcel. This therefore is not a case of other beneficiaries being excluded. 37.The late Charles Wahome Kibara filed for letters of administration and disclosed the presence of the second applicant, who is his brother. The applicant signed form 38 which was filed on 13.10.2004. Summons for confirmation were filed on 14.07.2005 where the two were to share Land parcel number Aguthi/Gaki/1713 together with the other movable assets. The mediation agreement covered the movable assets in the same terms as the proposal by the late Charles Wahome Kibara, the deceased administrator. The grant was confirmed on 2.03.2006. 38.The application for revocation filed on 25.10.2006 by the first applicant herein related to failure to disclose the gift inter vivos in relation to Naromoru/Block 2/Muriru/73. It was not in relation to any fraud by the late Charles Wahome Kibara. Subsequently the administrator of the estate of the late Charles Wahome Kibara, applied and substituted the father. The share by the first applicant was not affected. The responded had been granted letters of administration in Nyeri HC P&A 202 of 2016. 39.He applied to transfer the father’s share to Paul Muraya Kibara, to whom the late Charles Wahome Kibara had sold his 1.7 acres or half of the estate. The first applicant opposed the transfer through a lengthy affidavit dated 10.1.2018. 40.The same remains alive in the file. The saddest bit is that the other person who bought the land from the late Charles Wahome Kibara, is deceased. There was no attempt to inform the said person in light of the doctrine of audi laterum paterm. It was agreed that the deceased administrator sold his share of land to the late Paul Muraya Kibara (deceased). Being an administrator and having sold the land that was his share, the question of the validity of the sale is a land question. This court cannot impugne the same. It is not just a land question but a question between the estate of the late Paul Muraya Kibara and the late Charles Wahome Kibara. I therefore decline to make any finding relating to the sale. 41.The applicants did not lay any basis for departure from section 40 of the Law of Succession Act. The equal sharing was thus proper in the circumstances. Section 38 of the Law of Succession provides 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. 42.Therefore, I find and hold that the grant was properly issued, the parties were to share equally, that is 0.7775 (1.7 acres each). Having found that the summons for revocation is unmerited, I proceed to dismiss the same. The next question is costs. 43.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 up 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. 44.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 litigation22.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. 45.The respondent is entitled to costs. A sum of Ksh 65,000/= will suffice. The net effect is that I dismiss the summons for revocation dated 10.1.208. For avoidance of doubt the summons earlier filed are spent, given that the grant it sought to revoke was revoked by dint of operation of the law. Determination 46.In the upshot, I make the following orders:a.Summons for revocation dated 10.1.2018 is hereby dismissed.b.The respondent shall have costs of Ksh 65,000/= payable within 30 days in default execution do issue.c.The matter is fixed for hearing of the application dated 4.02.2017 on 5.11.2026. Parties to file submissions.d.14 days right of appeal. DELIVERED, DATED AND SIGNED AT NYERI ON THIS 28TH DAY OF MAY, 2026. JUDGMENT DELIVERED THROUGH MICROSOFT TEAMS ONLINE PLATFORM.KIZITO MAGAREJUDGEIn the presence of: -Mr. Wahome Gikonyo for the AdministratorNo appearance for the ApplicantCourt Assistant – Martin