https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9363

Kinyua & another v Kihanda (Succession Cause E1094 of 2023) [2026] KEHC 9363 (KLR) (Family) (22 June 2026) (Ruling) Neutral citation: [2026] KEHC 9363 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Law Courts) Family Succession Cause E1094 of 2023 CJ Kendagor, J June 22, 2026 Between Rosemary Margaret Wanjiru Kinyua 1st Administrator Faith Wambui Kihanda 2nd Administrator and Peter Kariuki Kihanda Protestor Ruling 1.This succession cause is in respect of the estate of Isaac Kihanda Kinyua, who died on 7th June, 2023. He was survived by the following dependants;a.Rosemary Margaret Wanjiru Kinyua – widow, aged 78 years oldb.Peter Kariuki Kihanda – Son, 57 yearsc.Susan Rahabu Wanjiku Kihanda – daughter, 54 yearsd.Faith Wambui Kihanda – daughter, 40 years. 2.Rosemary (widow) and Faith (daughter) were appointed as administrators via a Grant of Letters of Administration intestate issued on 31st January, 2024. 3.The Administrators filed an application dated 18th December, 2024 seeking Confirmation of the Grant. They listed the deceased’s assets and liabilities and proposed a mode of distribution. 4.Rosemary (widow) and Susan and Faith (daughters) consented to the proposed mode of distribution while Peter (son) lodged a protest through an Affidavit of Protest dated 22nd January, 2025. The administrators filed a response affidavit dated 25th August, 2025. 5.The protest was set down for hearing, and after the examination and the protestor’s assertion that his discontent stemmed from the administrators not involving him, the witness stepped down to allow for out-of-court deliberations. 6.Subsequently, the Court was informed that the parties had agreed on how to distribute the immovable property, but they had not reached an agreement regarding the funds held in the deceased’s two bank accounts. The amounts held at Standard Chartered Bank, after a Court order directing the confirmation of balances, were found to be Kshs.6,025,052.20/=. 7.In the schedule of distribution attached to the summons for confirmation, the Administrators and the two beneficiaries propose that all the money go to Rosemary (widow) for her use and benefit. The Protestor, in the affidavit of protest, proposes that the money be shared equally among all beneficiaries. 8.The parties agreed to dispose of the issue in dispute by way of submissions. The Administrators filed submissions dated 20th February, 2026. The protestor did not file any. 9.The Administrators’ submissions urged the Court to review the past and present benefits received by the Protestor and other beneficiaries, and to determine that the Protestor is receiving the largest share of the deceased’s estate. 10.Reliance was placed on the decision In the matter of the Estate of Charles Kakuru Katungu [2024] KEHC 3226 (KLR). It was argued that, since the immovable properties have passed to the children and the widow is elderly and ailing, she should be the sole beneficiary of the funds, as a contrary decision would leave her without support. 11.The administrators also submitted that, as an alternative, a sum of Kshs.896,406/=, which represents an estate liability incurred by the widow, should be deducted from the total funds. The remaining amount would then be distributed equally among the four beneficiaries, while the deducted sum would be added to the widow’s share. Analysis and determination 12.Upon reviewing the summons for Confirmation of Grant, the proposed schedule of distribution, the affidavit of protest, the response to the protest, and the submissions on record, I find that the main issue for determination is how the funds held at Standard Chartered Bank should be distributed. 13.The Administrators already ascertained that the referenced bank accounts belonged to the deceased. There is no indication that the deceased had made any nominations regarding the beneficiaries upon death. The amount at the bank has also been ascertained to be an aggregate of Kshs.6,025,052.20/=. 14.From the schedule of distribution dated 18th December, 2025 agreed upon, the following is the distribution of the immovable assets; LIST OF PROPERTIES WHO TO INHERIT SHARE OF HEIR Gilgil/Gilgil/Block 1/1421 (Kikopey) Rosemary Margaret Wanjiru KinyuaPeter Kariuki KihandaSusan Rahabu Wanjiku KihandaFaith Wambui Kihanda To be divided and shared in equal shares Ngong/Ngong/2378 Rosemary Margaret Wanjiru KinyuaPeter Kariuki KihandaSusan Rahabu Wanjiku KihandaFaith Wambui Kihanda To be divided and shared in equal shares Plot No. B383 (Formerly (440/Res) Ongata Rongai (consisting of the residential house and nine (9) rental units namely: Three studio flats Three (3) – 2-Bedroom flats Three (3) – 1-Bedroom flates Rosemary Margaret Wanjiru Kinyua The residential house.One (1) Studio flat.Two (2) 1-Bedroom flats.Two (2) 2-Bedroom flats.(Solely for her use and benefit). Peter Kariuki Kihanda One (1) 1-Bedroom flat – solely for his occupation.One (1) 2-Bedroom – to draw rental income only.Two (2) Studio flats – to draw rental income only. 15.The guiding provision on distribution in intestacy where the intestate has left one surviving spouse and child or children is section 35 of the Law of Succession Act, which provides as follows;“35(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.” 16.In the Matter of the Estate of Charles Kakuru Katungi - (Deceased) (Succession Cause 1040 of 1991) [2014] KEHC 3226 (KLR) the Court discussed the import of Section 35 and held as follows;“ 16.“Life interest” is not defined in the Law of Succession Act. Black’s Law Dictionary, ninth edition, West, 2009, defines it as “an interest in real or personal property measured by the duration of the holder’s or another person’s life.” In the context of Section 35 it is an interest held by the surviving spouse during their life “in the whole of the residue of the net interest estate.” Its effect is that the surviving spouse first enjoys rights over the property and at his or her death the property passes to other persons. In the context of Section 35, the widow is entitled to enjoy rights over the residue of the net intestate estate, that is after taking away the chattels and settlement of liabilities, during her life time with the property passing to the children upon her demise or remarriage of she be a widow. 17.The effect of Section 35(1) is that the children of the deceased are not entitled to access the net intestate estate so long as there is a surviving spouse. The children’s right to the property crystallises upon the determination of the life interest following the death of the life interest holder or her remarriage. Prior to that, the widow would be entitled to exclusive right over the net estate. This means that if the net estate is generating income she would be the person entitled exclusively to the income so generated. 18.The device is designed to safeguard the position of the surviving spouse. The ultimate destination of the net intestate estate where there are surviving children is the children. It is the children who are entitled of right to the property of their deceased parent. However, if the property passes directly to the children, in cases where there is a surviving spouse, he or she is likely to be exposed to destitution. This would particularly be the case where the surviving spouse was wholly dependent on the departed spouse. She would be left without any means of sustenance. The other aspect is that life interest ties up with the concept of matrimonial property: the said property would in most part be property acquired during marriage and with the contribution of the surviving spouse. Direct devolution of such property to the children would deny the surviving spouse of enjoyment of their own property.” 17.Section 35(2) of the Act grants the holder of a life interest the authority to distribute property covered by that interest prior to its termination, as outlined in the proviso to Section 35 (1). This provision allows the spouse to allocate any or all property within the scope of the life interest. Section 35(3) provides a remedy to any child who feels aggrieved with the manner of the exercise of the power of appointment. 18.When deciding on the orders related to the funds, Section 35 (4) is also relevant. It states that Courts will consider various factors such as the deceased’s property type and amount, the Applicant’s and surviving spouse’s financial status, any prior gifts from the deceased to the Applicant, the Applicant’s behaviour, the interests of other potential beneficiaries, and the overall case context, including the surviving spouse’s reasons for their estate-related actions. 19.In this case, the surviving widow and the children have, by consent, converted the life interest in respect of the immovable properties. For the properties Gilgi/Gilgil/Block 1/1421 (Kikopey) and Ngong/Ngong/2378. They have agreed that the properties are to be divided and shared in equal shares among the four beneficiaries. 20.For the third immovable property, Plot No. B383 (Formerly 440/Res) Ongata Rongai, which is described as consisting of the residential house (matrimonial home) and nine (9) rental units; the residential house has been vested in the widow together with one studio flat, two 1-bedroom flats, and two 2-bedroom flats solely for her use and benefit. The protestor has been allocated one 1-bedroom flat for his occupation, one 1-bedroom flat and two studio flats to draw rental income only. 21.It is clear from this that the protestor will have the benefit of the occupation of the one unit and the receipt of rental income from the two units, but the property remains vested in the widow. 22.Under Section 42 of the Act, previous benefits are taken into account when confirming the grant. The section 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 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.” 23.It is undisputed that the widow and the children received benefits during the deceased’s lifetime. The widow averred that from a compensation award of Kshs.35,667,891/=, Kshs.10,500,000/= was divided equally among the three children, while the remaining amount was shared equally between her and the deceased. 24.From the analysis, I find that none of the deceased’s children has been left destitute. They are all adults. It is also clear that the Protestor is getting a greater benefit than the rest of the siblings, and that his mother (widow) and his sisters made the proposals that favour him; the Court will not disturb this consent. 25.The life interest in the whole residue of the net intestate estate, protected by Section 35 (1) of the Act, is designed to prevent the spouse from being left destitute during their lifetime and therefore to make the estate available only for equal distribution among the children upon the death of the spouse. But what about the widow who has forfeited her life interest in favour of the children? 26.The widow is aged 78, and she has presented a compelling case regarding her financial situation. From the analysis of the assets outlined, her sole source of income is derived from the rental properties associated with her matrimonial home. She has indicated that this income is insufficient to meet her medical and household expenses. 27.In her affidavit, the widow disclosed the subdivision and transfer of her personal property (Ngong/Ngong/14093), which she has tabled evidence is not part of the deceased’s estate. From this and her choice to relinquish her life interest in favour of her children, it is evident that she has acted in good faith. The protest calling for equal distribution of the funds, while also maintaining that the Court should uphold the consent extinguishing the life interest, has failed to take into account the widow’s financial position and the overall context of the case. This Court is entrusted with the noble duty and jurisdiction to make appropriate orders to meet the interests of justice in the case. 28.The protest calling for equal distribution of the funds is rejected. The funds currently held in the deceased’s bank accounts amounting to Kshs.6,025,052.20/= or any other accrued amount shall be utilized exclusively for the benefit of the widow, Rosemary Margaret Wanjiru Kinyua. 29.The Grant is hereby confirmed in accordance with the distribution schedule dated 18th December, 2025, mutually agreed by the parties, with endorsement of the allocation of the funds solely to the widow. 30.Orders accordingly. DATED, DELIVERED AND SIGNED AT NAIROBI THROUGH THE MICROSOFT TEAMS ONLINE PLATFORM ON THIS 22ND DAY OF JUNE, 2026.…………………….C. KENDAGORJUDGEIn the presence of:Court Assistant: Beryly