In re Estate of Gathita Mahinda (Deceased) (Succession Appeal E022 of 2024) [2026] KEHC 5985 (KLR) (30 April 2026) (Judgment)

REPUBLIC OF KENYA IN THE HIGH COURT AT NYERI SUCCESSION APPEAL NO. E022 OF 2024 IN THE MATTER OF THE ESTATE OF GATHITA MAHINDA (DECEASED) LAWRENCE KINYUA MWANGI….……………...….……….... APPELLANT VERSUS CHRISTOPHER MWANGI MAHINDA..………............1ST RESPONDENT AGATA WAIRIMU MAHINDA………..................….... 2ND RESPONDENT JUDGMENT 1. This is an appeal from the Ruling and Order of Hon. VN Kosgey, Senior Resident Magistrate dated 24.9.2024 in Karatina PMCSUCC Cause No. EE111 of 2021. 2. The Memorandum of Appeal dated 14.10.2021 raised 8 Grounds of Appeal. The grounds are, however, argumentative, winding and repetitive. The distinct Grounds of Appeal are as follows: (a) The learned magistrate erred in law and fact in awarding the deceased’s estate to the 2nd Respondent. Page 1 of 27 M. D. KIZITO, J. (b) The learned magistrate erred in law and fact in dismissing the Appellant’s evidence that Plot No D1 Majengo Nanyuki Town forms part of the estate of the deceased person. (c) The learned magistrate erred in law and fact in not awarding the estate to one house and disinheriting the other house. (d) The learned magistrate erred in law and fact in holding that the Appellant was not entitled to the deceased’s estate. Pleadings 3. By the Petition for summons for confirmation of the grant dated 13.9.2023 and filed by the Appellant, the Appellant sought for an order that the Grant issued to Susan Nyareri Gichuki, Lawrence Kinyua Mwangi and Christopher Mwangi Mahinda be confirmed. The Appellant described himself as grandson, the 1st Respondent as grandson and the 2nd Respondent as daughter in law of the deceased. It was common position of the parties that the 2nd Respondent had renounced her right to inherit in the estate. 4. Before the Petition for summons was heard before the Lower court, the 1st Respondent filed an affidavit of protest dated 29.1.2024. By the said Affidavit, it was deposed as follows: a) The 1st Respondent was a grandson and the 2nd Respondent was his mother. b) The deceased was polygamous with 3 wives. Page 2 of 27 M. D. KIZITO, J. c) The 1st house was survived by one daughter, Susan Nyareri who had renounced her right to the estate. d) The 2nd house was not survived by any child and had 5 surviving grandchildren. e) The 3rd house had one surviving daughter who was the 2nd Respondent. f) Plot No. D1 Majengo did not form part of the estate and ought to be excluded. g) The family had agreed that Property Kirimukuyu/Mutathiini/348 goes to the late Daniel Mahinda, father of the 1st Respondent. h) The Petitioner had failed to include and inform all beneficiaries and dependants of the proceedings. i) The protestors had quiet and uninterrupted possession of the property since 1965 and had made tremendous developments thereon. 5. The lower court considered the matter and, in its Judgement, dated 24.9.2024, the court found that Plot No. D1 Majengo did not form part of the estate for want of evidence and that Kirimukuyu/Mutathiini/348 should vest in the name of the 2nd Respondent, wholly. 6. Aggrieved, the Appellants lodged a memorandum of Appeal hence this Appeal. Submissions Page 3 of 27 M. D. KIZITO, J. 7. The Appellant filed submissions dated 11.10.2024. They submitted that the Respondents were not children of the deceased. Only 1st Respondent had filed a birth certificate in court and which was suspiciously acquired on 26.7.2021 after the demise of the deceased. The 2nd Respondent had no name depicting the deceased. Reliance was placed on Re Estate of Patrick Mwangi Wathiga (2015)e KLR to submit that on evidence was tendered to demonstrate that the Respondents were children of the deceased and therefore beneficiaries. 8. It was also submitted that there was no evidence of marriage between the deceased and one Virginia alleged to be the mother of the Respondents. They cited Section 3 of the Marriage Act to define the meaning of a marriage. 9. Therefore, the Appellants submitted that the Respondents had not proved dependency as required under Section 29 of the Law of Succession Act. 10. The Respondents on their part also filed submissions dated 18.11.2024. it was submitted for the Respondents that the Appellants obtained introductory letter from the chief by concealing material fact that the Respondents were children of the Deceased. 11. It was further submitted that the inclusion of a name of person as mother or father of a child was dependent on willingness of the person. They cited Section 11 of the Births and Deaths Registration Act to submit that the absence of a Page 4 of 27 M. D. KIZITO, J. name of the deceased in their names would not be conclusion that they were not children of the deceased. 12. It was also submitted that the existence or otherwise of a marriage between the Respondent’s mother and the deceased did not affect their nature as children of the deceased. They cited Re In the Matter of the Estate of JCG and Section 392) of the Law of Succession Act on presumption of marriage. 13. Therefore, the Respondents submitted that they were dependents within the meaning of Section 29 of the Law of Succession Act. they relied inter alia on In Re Estate of EAK (Deceased) (2022) e KLR. Analysis 14. This being a first appeal, this court is under a duty to re- evaluate and assess the evidence and make its own conclusions. It must, however, keep at the back of its mind that a subordinate court, unlike the appellate court, had the advantage of observing the demeanour of the witnesses and hearing their evidence first hand. 15. The duty of the first appellate court was set out in the case of Selle and another Vs Associated Motor Board Company and Others [1968] EA 123, where the court in their usual gusto, held as follows; - “.. this court is not bound necessarily to accept the findings of fact by the court below. An appeal to this court ... is by way of re-trial and the Court Page 5 of 27 M. D. KIZITO, J. of Appeal is not bound to follow the subordinate Court’s finding of fact if it appears either that he failed to take account of particular circumstances or probabilities or if the impression of demeanour of a witness is inconsistent with the evidence generally.” 16. The Court is to bear in in mind that it had neither seen nor heard the witnesses. It is the subordinate court that has observed the demeanor and truthfulness of those witnesses. However, documents still speak for themselves. The observation of documents is the same as the lower court as parties cannot read into those documents matters extrinsic to them. In Fidelity & Commercial Bank Ltd V Kenya Grange Vehicle Industries Ltd (2017) eKLR, the Court of Appeal, Ouko, Kiage and Murgor JJA held as doth;- “Courts adopt the objective theory of contract interpretation, and profess to have the overriding aim of giving effect to the expressed intentions of the parties when construing a contract. This is what sometimes is called the principle of four corners of an instrument, which insists that a document's meaning should be derived from the document itself, without reference to anything outside of the document (extrinsic evidence), such Page 6 of 27 M. D. KIZITO, J. as the circumstances surrounding its writing or the history of the party or parties signing it. 17. In Gerald Dworkin, Odgers' Construction of Deeds and Statutes (5th edn, Sweet & Maxwell 1967), the learned author at p. 106 states as follows: “Parol Evidence and written documents. It is a familiar rule of law that no parol evidence is admissible to contradict, vary or alter the terms of a deed or any written instrument. The rule applies as well as deeds as to contracts in writing. Although the rule is expressed to relate to parol evidence, it does in fact apply to all forms of extrinsic evidence. As it stands this is not a rule of interpretation but of law, and means that the interpretation of the document must be found in the document itself with the addition if necessary of such evidence as we have previously seen is admissible for explaining or translating words and expressions used therein” 18. This court’s the jurisdiction to review the evidence should be exercised with caution. In the cases of Peters vs Sunday Post Limited [1958] EA 424 , the court therein rendered itself as follows: - “It is a strong thing for an appellate court to differ from the findings on a question of fact, of the judge who had the advantage of seeing and hearing the Page 7 of 27 M. D. KIZITO, J. witnesses…But the jurisdiction to review the evidence should be e4xercised with caution: it is not enough that the appellate court might have come to a different conclusion…” 19. Bearing in mind that the court does not have the advantage of seeing and hearing the witnesses as did the lower court, yet this court must reconsider the evidence, evaluate it itself and draw its own conclusions. the law applicable was not clearly delineated. the succession act came into force 23.06.1981. this was enunciated n the court of appeal decision of Rono v Rono & another [2005] KECA 326 (KLR) , the court of appeal, sitting at Eldoret, stated as doth: The deceased in this matter died in 1988, while the Succession Act which was enacted in 1972, became operational by Legal Notice No. 93/81, published on 23.06.1981. I must therefore hold, as the Act so directs, that the estate of the deceased falls for consideration under the Act. Section 2(1) provides: “2.(1) Except as otherwise expressly provided in the 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 Page 8 of 27 M. D. KIZITO, J. this Act and to the administration of estates of those persons.” 20. The said decision was quoting section 2 of the law of succession act which provides 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. (2) The estates of persons dying before the commencement of this Act are subject to the written laws and customs applying at the date of death, but nevertheless the administration of their estates shall commence or proceed so far as possible in accordance with this Act. (3) Subject to subsection (4), the provision of this Act shall not apply to testamentary or intestate succession to the estate of any person who at the time of his death is a Muslim to the intent that in lieu of such provisions the devolution of the estate of any such person shall be governed by Muslim law. Page 9 of 27 M. D. KIZITO, J. (4) Notwithstanding the provisions of subsection (3), the provisions of Part VII relating to the administration of estates shall where they are not inconsistent with those of Muslim law apply in case of every Muslim dying before, on or after the 1st January, 1991. 21. The succession act is thus applicable to the extent of the administration of their estates. In this matter no party indicated that custom was applicable. Therefore, the tenets of article 27 of the Constitution Act will be had regard of. 22. The background of the case was that the 1st Respondent protested against the summons for confirmation of the Grant. It was his case that the surviving grandchildren were left out of the succession by concealment and that property known as Plot D1 Majengo did not form part of the estate. The burden was on the Appellants to proof their assertions. In Anne Wambui Ndiritu –vs- Joseph Kiprono Ropkoi & Another [2005] 1 EA 334, the Court of Appeal, held that: “As a general proposition under Section 107 (1) of the Evidence Act, Cap 80, the legal burden of proof lies upon the party who invokes the aid of the law and substantially asserts the affirmative of the issue. There is however the evidential burden that is case upon any party the burden of proving any particular Page 10 of 27 M. D. KIZITO, J. fact which he desires the court to believe in its existence which is captured in Sections 109 and 112 of the Act. 23. The Appellant was thus expected to demonstrate on a balance of probabilities that the assertions in the summons for revocation of grant were such as to shift the scales of justice towards adopting his proposed case. The question then is what amounts to proof on a balance of probabilities. Kimaru, J in William Kabogo Gitau vs. George Thuo & 2 Others [2010] 1 KLR 526 as follows: In ordinary civil cases a case may be determined in favour of a party who persuades the court that the allegations he has pleaded in his case are more likely that not to be what took place. In percentage terms, a party who is able to establish his case to a percentage of 51% as opposed to 49% of the opposing party is said to have established his case on a balance of probabilities. He has established that it is probable than not that the allegations that he made occurred.” 24. The 1st Respondent maintained that it was agreed at a family meeting that parcel number Kirimukuyu/Mutathiini/348 should go to his father, the deceased Daniel Mahinda. 25. The Appellant on the other hand maintained in his affidavit in support of the summons for confirmation of Grant as well as Page 11 of 27 M. D. KIZITO, J. supplementary Affidavit sworn on 6.2.2024 that Plot D1 Majengo was property of the deceased and the beneficiaries from the 2nd house had consented to him getting parcel number Kirimukuyu/ Mutathiini/348. He proposed that the 1st Respondent gets ½ share on behalf of the 3rd house and that himself gets ½ share on behalf of the 2nd house. 26. Be that as it may, on dependants, the Law of Succession Act (Cap 160 ) defines who is a dependant at Section 29 as follows: “(a)the wife or wives, or former wife or wives, and the children of the deceased whether or not maintained by the deceased immediately prior to his death; (b)such of the deceased’s parents, step-parents, grand- parents, grandchildren, step-children, children whom the deceased had taken into his family as his own, brothers and sisters, and half-brothers and half-sisters, as were being maintained by the deceased immediately prior to his death; and (c) Where the deceased was a woman, her husband if he was being maintained by her immediately prior to the date of her death. 27. The lower court found that grandchildren could not inherit directly as they did not prove that they were being maintained by the deceased at the time of his demise. Page 12 of 27 M. D. KIZITO, J. 28. As the Appellants are undisputedly also beneficiaries, under Section 28 of the Law of Succession Act it is provided as follows, it is provided as follows: In considering whether any order should be made under this Part, and if so what order, the court 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 dependant; c. The existing and future means and needs of the dependant; d. Whether the deceased had made any advancement or other gift to the dependent during his lifetime; e. The conduct of the dependant in relation to the deceased; f. The situation and circumstances of the deceased’s other dependants and the beneficiaries under any will; g. The general circumstances of the case, including, so far as can be ascertained, the testator’s reasons for not making provision for the dependant Page 13 of 27 M. D. KIZITO, J. 29. In the circumstances of this case, there were said to be surviving grandchildren that would be entitled to the estate. The court erred in its finding that the grandchildren had to prove that they were not being maintained. The circumstances of this case reveals that the court was dealing with houses that the deceased left and not grandchildren as independent dependents. 30. In respect of grandchildren section 41 of the succession Act provides as follows regarding grandchildren: Where reference is made in this Act to the "net intestate estate", or the residue thereof, devolving upon a child or children, the property comprised therein shall be held in trust, in equal shares in the case of more than one child, for all or any of the children of the intestate who attain the age of eighteen years or who, being female, marry under that age, and for all or any of the issue of any child of the intestate who predecease him and who attain that age or so marry, in which case the issue shall take through degrees, in equal shares, the share which their parent would have taken had he not predeceased the intestate. 31. It was not a disputed fact that there were 3 houses and the 1st house had only one daughter who had renounced her right. This renunciation is not seen but she has not actively Page 14 of 27 M. D. KIZITO, J. participated in the mother. Both the Appellant and the 1st Respondent were grandchildren representing their respective houses- the 2nd and 3rd house. The 2nd Respondent was the widow of a son in the 3rd house described to have ceded her litigation rights herein to the 1st Respondent. 32. Therefore, the property ought to have shared in accordance with the rules on polygamous houses. The Court of Appeal, in Elizabeth Chepkoech Salat v Josephine Chesang Chepkwony Salat [2015] eKLR, held that: - ‘From the consideration of sections 35, 40 and 42 of the Act, the broad principle of law which emerges is that where an intestate was polygamous, the estate, in the first instance, should be divided among the houses according to the number of children in each house adding a surviving wife as an additional unit taking into account any previous benefit to any house. Thereafter the estate devolving on any house is, subject to her life interest distributed by the surviving spouse in exercise of her power of appointment to each beneficiary taking into account previous benefit, if any, to any beneficiary. However, in the event that the life interest is terminated either by remarriage or death, then the net interstate estate devolves upon a house is divided among the surviving beneficiates equally subject to any previous benefit to any beneficiary. Page 15 of 27 M. D. KIZITO, J. [30] Section 40 of the Act does not give discretion to a court to deviate from the general principles therein enunciated. Where a matter is contentious and the parties have not reached a consent judgment, the court is bound to apply the statutory provisions. More specifically, the court has no power to substitute the statutory principles for its own notion of what is an equitable or just decision. However, court has a limited residuary discretion within the statutory provisions to adjust the share of each house or of a beneficiary where, for instance, the deceased had during his lifetime settled any property to a house or beneficiary or to decide which property should be disposed of to pay liabilities of the estate or to determine which properties should be retained by each house or several houses in trust. 33. This matter relates to an intestate estate of a polygamous man. In respect of the distribution of the Deceased’s estate, this court is guided by Sections 40(1) and 42 of the Law of Succession Act, Cap 160, Laws of Kenya. Section 40(1) of the Law of Succession Act provides that: ‘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 Page 16 of 27 M. D. KIZITO, J. 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.’ 34. On the expanse of the estate, there were allegations that Plot No. D1 Majengo forms part of the estate of the deceased. The existence of the said parcel was not disputed. Nothing was placed before the court below to show the property existed. There was a note that showed that there was payment of rates. No documents were placed before the court below. The court found that there was no such plot. This was correct exercise of discretion. This Court will not interfere with the exercise of judicial discretion by an inferior court unless it is satisfied that its decision is clearly wrong. In the case of Mbogo and Another vs. Shah [1968] EA 93 the court stated: “…that this Court will not interfere with the exercise of judicial discretion by an inferior court unless it is satisfied that its decision is clearly wrong, because it has misdirected itself or because it has acted on matters on which is should not have acted or because it failed to take into consideration matters which it should have taken into consideration and in doing so arrived at a wrong conclusion.” Page 17 of 27 M. D. KIZITO, J. 35. Without evidence of ownership, the court below was correct in excluding plot no. D1 Majengo from the estate. The estate consisted only of land parcel number Kirimukuyu/Mutathini/348. 36. The court directed that the same be held in the name of the 2nd Respondent. This was contrary to the distribution of the estate of a polygamous person. Such a formular would not determine the shareable portion that would go to the 2 nd house and amounted to completely leaving out the 2nd house and which was a grave injustice. 37. The court had the obligation to do all that it could to ensure equitable distribution for the entire estate of the deceased and which I find it failed. In re Estate of Jackson Nicholas Kyengo Mulwa (Deceased) [2021] KEHC 1545 (KLR) the court stated as follows: 32. In the interest of justice, it is paramount that all beneficiaries of the deceased are properly catered for. The Law of Succession Act in its very nature aims at ensuring all beneficiaries of a deceased person and their interests are protected… 38. The position prosed by the Appellant was thus the fairest manner of distributing the estate of the deceased. One half of the entire estate would go to each of the two houses that were sharing. The two houses would then retreat to their own Page 18 of 27 M. D. KIZITO, J. cocoons to distribute their share among themselves. This was so particularly because there were no children or wives of the deceased left and only grandchildren and granddaughter were living from the respective 2 houses. The court is unable to find a ground based on which to fault the proposal by the Appellant in the summons for conformation of the Grant. The 1st Respondent did not prove any grounds upon which a Grant could be revoked or annulled as set out in Section 76 of the Law of Succession 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; Page 19 of 27 M. D. KIZITO, J. d. That the person to whom the grant was made has failed, after due notice and without reasonable cause either- i. (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. 39. The court explained the rationale of Section 76 of the Law of Succession Act in In the Matter of the estate of Veronica Njoki Wakagoto (Deceased) [2013] KEHC 1930 (KLR) , where W. M. Musyoka, J observed as doth: Under section 76, a court may revoke a grant so long as the grounds listed above are disclosed, either on Page 20 of 27 M. D. KIZITO, J. its own motion or on the application of a party. A grant of letters of administration may be revoked on three general grounds. The first is where the process of obtaining the grant was attended by problems. The first would be where the process was defective, either because some mandatory procedural step was omitted, or the persons applying for representation was not competent or suitable for appointment, or the deceased died testate having made a valid will and then a grant or letters of administration intestate was made instead of a grant of probate, or vice versa. It could also be that the process was marred by fraud and misrepresentation or concealment of matter, such as where some survivors are not disclosed or the applicant lies that he is a survivor when he is not, among other reasons. The second general ground is where the grant was obtained procedurally, but the administrator, thereafter, got into problems with the exercise of administration, such as where he fails to apply for confirmation of grant within the time allowed, or he fails to proceed diligently with administration, or fails to render accounts as and when required. The third general ground is where the grant has become useless and inoperative following subsequent circumstances, such as where a sole administrator dies leaving Page 21 of 27 M. D. KIZITO, J. behind no administrator to carry on the exercise, or where the sole administrator loses the soundness of his mind for whatever reason or even becomes physically infirm to an extent of being unable to carry out his duties as administrator, or the sole administrator is adjudged bankrupt and, therefore, becomes unqualified to hold any office of trust.” 40. The 1st Respondent alleged that Kirimukuyu/Mutathiini/348 would go to his father, the late Daniel Mahinda. The extended family has no role in succession business. A decision of a family meeting whether or not it met the conditions of a consent would not be used to override a beneficiary’s valid claim in an estate. There was no evidence that the said property had been transferred to the said Daniel Mahinda during the lifetime of the deceased as to consider it as a gift. In as much as the property was in the name of the deceased, the same was available for succession purposes. 41. It is not true that the said Agata Wairimu Mahinda ranks in priority to the appellant. so long as the parents are deceased, the children step into the shoes of their parents without further ado. 42. There were 20 grandchildren listed by Lawrence Kinyua Mwangi without their parents. It is not possible to address their shares without their interest without knowing whose grandchildren they are. The evidence indicated that there are Page 22 of 27 M. D. KIZITO, J. 5 grandchildren of the second house. However, it is not indicated who the parents are. 43. Consequently, I find that the estate property shall be shared equally between the estates of the late and the late. I decline to directly assign to any one beneficiary given the emotional rift in the houses. the parcels will be divided equally between the second and third house. each of the houses to settle their shares form there. 44. This leaves the issue of costs, which is governed by Section 27 of the Civil Procedure Act, which provides as follows: (1) Subject to such conditions and limitations as may be prescribed, and to the provisions of any law for the time being in force, the costs of and incidental to all suits shall be in the discretion of the court or judge, and the court or judge shall have full power to determine by whom and out of what property and to what extent such costs are to be paid, and to give all necessary directions for the purposes aforesaid; and the fact that the court or judge has no jurisdiction to try the suit shall be no bar to the exercise of those powers: Provided that the costs of any action, cause or other matter or issue shall follow the event unless the court or judge shall for good reason otherwise order. Page 23 of 27 M. D. KIZITO, J. (2) The court or judge may give interest on costs at any rate not exceeding fourteen per cent per annum, and such interest shall be added to the costs and shall be recoverable as such. 45. Costs 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 if 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. 46. 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 Page 24 of 27 M. D. KIZITO, J. 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. 47. The family has a had enough drama. therefore, each party will bear their own costs. I will remit the matter to the court below to assign names of the beneficiaries in each of the Page 25 of 27 M. D. KIZITO, J. houses of the deceased. ant further sharing shall be done in those estates. Determination 48. In the upshot, The Appeal is merited and allowed to the following extent: a) The Judgement and Order of the lower court dated 24.9.2024 is set aside. b) The estate consists of only one parcel of land, that is, Kirimukuyu/Mutathiini/348 measuring 1.8 acres, which shall be shall be shared equally between the second and third houses as follows: (i) The estate of 0.9 acres to represent the house of Ngunju Gathita, the second house. (ii) Agata Wairimu Mahinda 0.9 acres to represent the house of Judy Wamuyu Gatitha. c) Plot No. D1 Majengo does not form part of the estate of the deceased. d) All the other prayers are dismissed. e) Each party to bear its costs. DELIVERED, DATED and SIGNED at NYERI on this 30th day of April, 2026. Judgment delivered through Microsoft Teams Online Platform. Page 26 of 27 M. D. KIZITO, J. KIZITO MAGARE JUDGE In the presence of: - P.M. Kahiga for the Appellant Mr. Kariuki G.E for Mr. Ndichu for the Respondent Court Assistant: Michael/Martin Page 27 of 27 M. D. KIZITO, J.