https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7118

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT KAJIADO** **HCCA NO. E029 OF 2025** **IN THE MATTER OF THE ESTATE OF** **JOSEPH MWANGI MWANIKI MARTIN (DECEASED)** **NORINCE WAMBUI GICHINGA……………………….1ST APPELLANT** **STEPHANIE KURIA...............................................2ND APPELLANT** **VERSUS** **LUCY GATHONI NJAMA...........................................RESPONDENT** **(Being an appeal from the ruling delivered on 14.03.2025 in Ngong CM’s Succession Cause No. E021 of 2024 -Maritim, RM)** **JUDGMENT** 1. This appeal emanates from the ruling delivered on 14.03.2025 in **Ngong CM’s Succession Cause No. E021 of 2024** in respect of an objection and protest filed by the children of **Joseph Mwangi Mwaniki Martin** (the deceased herein), namely, **Norince Wambui Gichinga** and **Stephanie** **Kuria** (hereafter the Appellants)to the summons toconfirm the grantearlier issued to **Lucy Gathoni Njama** (hereafter the Respondent). 2. The court heard the objection to grant and protest together as a protest and in the impugned ruling dismissed the protest and proceeded to confirm the Respondent as the sole administrator of the deceased's estate . And thereafter distributed the estate's only asset being funds held in a bank account, in the manner that had been proposed in the Respondent’s summons to confirm grant. 3. Aggrieved by this outcome, the Appellants appealed to this court via the memorandum of appeal dated 19.3.2025 which contains the following grounds: **‘’1. THAT the Learned Magistrate erred in law and fact by confirming the grant despite the Appellants' objection, which sought equal distribution of the estate among the beneficiaries**. **2**. **THAT the Learned Magistrate erred in law and fact by approving the proposed mode of distribution, which unfairly allocated 2/3 of the estate to the Respondent without proper justification which is inequitable and contrary to the principle of equal distribution as provided under Section 38 of the Law of Succession Act …**. **3. THAT the Learned Magistrate erred in law and fact by upholding the Respondent's appointment as Administrator despite clear evidence that she had excluded the Appellants from the succession proceedings**. **4. THAT the Learned Magistrate erred in law and fact by failing to revoke or vary the grant to ensure fair representation of all rightful beneficiaries in the administration of the estate**. **5. THAT the Court erred in erred in law by failing to analyze the specific needs and rights of all beneficiaries before confirming the grant**. **6. THAT the Learned Magistrate erred in dismissing the Appellants' objection without properly considering the evidence adduced, thereby occasioning a miscarriage of justice’’**. **Submissions** 1. The appeal was canvassed by way of written submissions. The Appellants by their submissions dated 22.10.2025 took the position that the lower court erred in law and in fact in its determination of the protest and the distribution of the estate. The Appellants asserting the principle that children of a deceased are entitled to an equal share in any distribution of his estate and that, unless circumstances otherwise dictate, all beneficiaries should receive an equal share of an estate. 2. The submission was anchored on the decision of the Court of Appeal in **Stephen Gitonga M'Murithi v Faith Ngira Murithi, Civil Appeal No. 3 of 2015, [2015] KECA 347 (KLR,** where the court, in allowing an appeal on the ground of unequal distribution, held that Section 38 of the Law of Succession Act, enshrines the principle of equal distribution of the net intestate estate to the surviving children of the deceased irrespective of gender and whether married or unmarried. 3. The Appellants further drew support from the judgment of the High Court of Kenya at Meru in **In the Matter of the** **Estate of M'Ngarithi M'Miriti alias Paul M'Ngarithi M'Miriti (Deceased), Succession Cause No. 108 of 2014,** which addressed the issue of discriminative practices against daughters in inheritance. And citing the **Stephen Gitonga M'Murithi v Faith Ngira Murithi** [supra]for the proposition that Section 38 enshrines the principle of equal distribution of the net intestate estate to the surviving children of the deceased irrespective of gender and marital status. Thus, held that a son will not have priority over a daughter simply because he is male, that all male and female siblings are equal before the law and are entitled to equal protection of the law under Article 27 of the Constitution. 4. Further, the Appellants complained that the trial court’s ruling dismissing the Appellants' protest was against the weight of the evidence and the law, whereas the distribution of the estate was inequitable and without legal basis. Here citing the fact that the Respondent, while alleging that she was the wife of the deceased without proof, had unilaterally applied for a grant without involving the Appellants, who are children of the deceased, and despite evidence of separation of from the deceased for many years. The Appellants therefore describe as erroneous the finding by the trial court that the Respondent was the wife of the deceased. 5. In addition, the Appellants took issue with the fact that the trial court upon reading its ruling immediately proceeded to distribute the estate solely based on the Respondent's proposal, to the prejudice of the Appellants and other beneficiaries. They contended that there was no justification for the Respondent receiving a larger share of the estate. More so as the Respondent was neither a wife nor a dependant of the deceased prior to his death. 6. They asserted that the rightful beneficiaries to the estate of the deceased comprise two households, namely, the house of the Appellants and that of the Respondent, and complain that under the mode of distribution approved by the lower court, the Respondent and her children received the larger portion of the estate, to the prejudice of the Appellants. Hence, they contended that the mode of distribution adopted by the trial court was flawed and without legal foundation. 7. The court was therefore urged to set aside the impugned ruling and to order that all beneficiaries be awarded equal shares in the estate. Finally, the Appellants submitted that it was imperative that one of them be appointed as a co-administrator to protect the interests of the Appellants and to ensure that the administration of the estate is carried out in accordance with the Court's orders. 8. On her part, the Respondent filed submissions dated 23.10.2025 principally in defence of the impugned ruling. The submissions were prefaced by a restatement of the foundational principles governing first appeals as spelt out in **Selle & Another v Associated Motor Boat Company Limited & Others [1968] EA 123** **.** 9. Having further restated the history of the dispute and evidence tendered in the lower court, the Respondent supported the trial court’s application of Section 66 of the Law of Succession Act, which establishes the order of preference for appointment of administrators where the deceased died intestate. It was the Respondent’s view that the trial court was justified in refusing to appoint the Appellants as co-administrators, given the clear evidence that they were acting on behalf of third parties with no legal or legitimate interests in the estate. Hence, their appointment would have been inimical to the proper administration of the estate. And that, no cogent reasons have been advanced to justify disturbing the trial court's finding that the Respondent was the sole spouse and lawful administrator of the estate. 10. Attacking the 4th ground of appeal, the Respondent pointed to what was described as abundant evidence by which the trial court was satisfied that all beneficiaries had been correctly identified and provided for. The Respondent, having in both her petition for grant and her summons for confirmation of grant, disclosed all beneficiaries of the estate including her own three children and the Appellants, the undisputed children of the deceased born out of wedlock. 11. Asserting that the Appellants were deliberately evasive before the lower court concerning the identities of persons they referenced *"all beneficiaries,"*, the Respondent contended that their witness statements exposed these to include their respective mothers who did not participate in the succession cause, and who were never married to the deceased. As well as the deceased's siblings, as conceded by the 2nd Appellant during her evidence. It was asserted that the Respondent produced documentary evidence establishing her status as the deceased's spouse, including copies of the NHIF Data Summary and the Obituary and Funeral Program prepared by the deceased's own family at the time of his burial. 12. Concerning the mode of distribution adopted by the trial court, it was contended that the Respondent's distribution proposal invited the court to compare her age and diminished earning capacity as against the children of the deceased, all of whom were young and capable of taking up gainful employment. Dismissing the Appellant’s reliance on Section 38 of the Law of Succession Act in urging equal distribution, the Respondent argued that the provision applied to estates where there was no surviving spouse, which was not the case here. 13. The Respondent views the appeal as an attempt to subject a widowed spouse to litigation fatigue in order to compel her to succumb to the illegitimate demands of persons who are not entitled to any part of the estate. The Respondent therefore urged that the appeal be dismissed with costs. **Analysis and Determination** 1. The court has considered the grounds of appeal, the record of appeal, as well as the parties’ respective submissions. This is a first appeal. The Court of Appeal for East Africa spelt out the duty of the first appellate court in **Selle v Associated Motor Boat Co. [1968] EA 123** in the following terms: - **“An appeal from the High Court is by way of re-trial and the Court of Appeal is not bound to follow the trial judge’s finding of fact if it appears either that he failed to take account of circumstances or probabilities, or if the impression of the demeanour of a witness is inconsistent with the evidence generally.** **An appeal to this court from a trial by the High Court is by way of retrial and the principles upon which this court acts in such an appeal are well settled. Briefly put they are that this court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect.** **In particular this court is not bound necessarily to follow the trial judge’s findings of fact if it appears either that he has clearly failed on some point to take account of particular circumstances or probabilities materially to estimate the evidence or if the impression based on the demeanor of a witness is inconsistent with the evidence in the case generally.”** 1. An appellate court will not ordinarily interfere with a finding of fact made by a trial court unless such finding was based on no evidence, or it is demonstrated that the court below acted on wrong principles in arriving at the finding it did. See **Ephantus Mwangi & Another vs Duncan Mwangi Wambugu [1982 – 1988] 1 KAR 278**. 2. The undisputed background to this appeal is as follows. Following the death of the deceased after what appears a long illness, the Respondent petitioned the trial court for letters of administration, in her asserted capacity as the spouse of the deceased. The Appellants who were born out of wedlock to different mothers, were named in the petition as children of the deceased, alongside the Respondent’s own three children. 3. The Appellants filed an objection to the grant and a protest to confirmation of the grant and sought joint appointment with the Respondent as administrators. On grounds that the Respondent had allegedly failed to involve other beneficiaries in filing the petition. During the trial, the 2nd Appellant and the Respondent testified, which principally involved adoption of their respective affidavit material. On 14.03.2025, the trial court by the impugned ruling dismissed the objection and protest (which the court treated together as a protest) and proceeded on 18.03.2025 to confirm the grant to the Respondent in terms of the mode of distribution in her so-called chamber summons dated 23.08.2024. This outcome prompted the present appeal. 4. From the record of proceedings in respect of the protest the Appellants’ case was that they were daughters of the deceased though their respective mothers did not marry him; that they were rightful beneficiaries of the estate of the deceased; that the Respondent, while misrepresenting herself as the deceased’s wife had surreptitiously filed the petition for grant without involving them; that the Respondent whom they describe as an ex-wife to the deceased had deserted the matrimonial home some ten years prior to his death; and that they ought to be appointed as co-administrators to the estate; and that the estate ought to be shared equally between all the beneficiaries. 5. The Respondent’s case was that she was the legitimate wife of the deceased having been married to him since 1988 and therefore entitled to be the sole administrator of his estate. She further stated that the couple had three children during their cohabitation which ceased in 2013, when she left the matrimonial home; that the couple had nevertheless maintained communication during the ten-year separation before the death of the deceased and; that she had taken care of the deceased during his illness. 6. She stated that before filing the petition for grant, she had sent consent forms to the Appellants who declined to execute them but she had included them as children of the deceased alongside her own three children; that the Appellants are acting as proxies for her in-laws who were eyeing the estate of the deceased; and that the grant ought to be confirmed as prayed her proposal in the summons. 7. The court takes the following view of the matter. First, the Appellants appeared to challenge the status of the Respondent as the lawful spouse of the deceased, hence entitlement to petition for a grant. However, from their own affidavits, they all but conceded that she was a wife, save that she had allegedly deserted the matrimonial home some ten years prior to the death of the deceased. Indeed the Appellants referred to the Respondent as an ‘’*ex-wife’’* of the deceased based on the alleged desertion. The Respondent while asserting her marriage to the deceased in 1988 confirmed having left the matrimonial home in 2013. Thus, for purposes of Section 3 of the Law of Succession Act, the Respondent remained a wife, albeit separated from the deceased at the time of death. She was therefore had legal standing to apply for a grant in respect of the estate of the deceased. The court so finds. 8. The real sticking points in this appeal revolve around the lower court’s confirmation of the Respondent as sole administrator and the mode of distribution of the assets of the estate. Regarding the former, under Section 66 of the Law of Succession Act the Respondent as the surviving spouse of the deceased enjoyed priority to be appointed as an administrator of his estate. 9. That said, the Respondent admitted that the two Appellants were children of the deceased through two different women who were never married to the deceased. It is obvious from the proceedings before the trial court and on this appeal that the Respondent and Appellants were pursuing competing interests. Despite this fact, the trial court apparently applied the provisions of Section 66 in a manner that excluded the Appellants from participating in administration of the estate of the deceased. Section 66 is in the following terms: “**When a deceased has died intestate, the court shall, save as otherwise expressly provided, have a final discretion as to the person or persons to whom a grant of letters of administration shall, *in the best interests of all concerned*, be made, but shall, without prejudice to that discretion, accept as a general guide the following order of preference—** **(a) surviving spouse or spouses, with or without association of other beneficiaries;** **(b) other beneficiaries entitled on intestacy, with priority according to their respective beneficial interests as provided by Part V;** **(c) the Public Trustee; and** **(d) creditors:** **Provided….. ‘’** 1. From the wording of the Section, the order of preference in the Section is intended to be read as a general guide to the court’s exercise of its wide discretion to make grants of letters of administration. The rider in the Section is that the discretion ought to be exercised ‘’in *the best interests of all concerned* ‘’. While it is true, as the trial court found, that the Respondent was the sole surviving spouse of the deceased, the Appellants being children of the deceased from different mothers had legitimate interests in the estate, a fact confirmed in the Respondent’s proposed mode of distribution in her summons for confirmation of the grant. The Respondent nevertheless was adamant in her evidence that she should remain the sole administrator of the estate. 2. Evidently, therefore, there was serious contention between the parties who were undisputed beneficiaries of the estate regarding not only the administration of the estate but distribution as well. 3. The apprehension expressed by the Respondent in the trial that the appointment of one of the Appellants as a co-administrator would hinder the administration of the estate could well be unfounded and was not sufficient reason to exclude the Appellants from the administration of the estate. Besides, the Respondent would not be without recourse; in the event of non-co-operation by the co-administrator, she would be at liberty to move the court appropriately. 4. In the court’s view had the trial court considered these matters and the full purport of Section 66 above, it would have reached a different conclusion, namely, that to safeguard their interests, it was imperative to appoint at least one of the Appellants to co-administer the estate alongside the Respondent. On this score, the court agrees with the Appellants. 5. Turning now to the question of the distribution of the estate, the Respondent in her petition and summons to confirm the grant properly included the Appellants as beneficiaries of the estate. Thus, recognizing them as children of the deceased albeit born out of wedlock. There was oblique reference made by the Appellants to other unnamed would-be beneficiaries, including siblings of the deceased and or the mothers of the Appellants. None of these persons presented their supposed claims to the estate before the trial court and the court cannot engage in shadow boxing. That said, the Respondent’s accusation that the Appellants were acting as proxies at the behest of third parties appeared to be no more than speculation, there being no proof tendered. 6. On this appeal, the Appellants invoke Section 38 of the Law of Succession Act**,** as applied in **Stephen Gitonga M'Murithi v Faith Ngira Murithi,** (supra)to argue that all beneficiaries including the Respondent ought to receive equal shares. Section 38 provides for the distribution of the net intestate estate among the children of the deceased, where there is no surviving spouse. Moreover, the court’s objective in distributing an intestate’s estate is to attain equity and fairness and not necessarily equality. **See Rono v Rono [2005] e KLR.** Equally, Section 40 of the Law of Succession Act cited by the Appellants is inapplicable to this case, as the deceased despite having sired several children out of wedlock cannot be considered a polygamous man. 7. The facts of this case do not fit neatly into any of the categories anticipated in Part V of the Law of Succession Act. The deceased was survived by a spouse, her three children and two other children whose mothers were not his spouses. Moreover, the estate asset comprises of monies in a bank account and not immoveable property or other capital assets. In the court’s estimation the provisions of Section 35 of the Law of Succession Act, with modification might be more proximate to this case. In that Section and indeed the entire Part, it is apparent that in an ideal case, the surviving spouse ought to benefit from a larger portion of the intestate’s estate, commensurate with her status and sufficient for her maintenance. 8. That is not to say that a surviving spouse is entitled to a disproportionate share of the estate that effectively deprives the children of the deceased, or other beneficiaries of their fair and equitable share of the estate. Hence the proviso to Section 71 of the Law of Succession Act to the effect that:- **”Provided that in cases of intestacy, the grant of letters of administration shall not be confirmed until the court is satisfied as to the respective identities and shares of all persons beneficially entitled ; and when confirmed the grant shall specify all such persons and their respective shares’.’** 1. In giving effect to the foregoing, the Probate and Administration Rules require that consents, not just to the summons to confirm the grant, but also to the mode of distribution be executed by all beneficiaries and be filed with the summons for confirmation of grant. This is intended to ensure fairness and equity in the distribution of intestate estates. The trial court in its ruling cited Section 71 of the Law of Succession Act before stating as follows: **‘’The first objector stated the Petitioner awarded herself a larger portion. The rest of the beneficiaries who are children of the deceased are not opposed to the share allocated to them as none of them tendered any evidence in protest. The spouse of the deceased in her proposal prays that court considers her age in allowing 2/3rds. The proposed mode of distribution is allowed….”**sic 1. The Appellants did not execute the consents to the confirmation or mode of distribution, instead filing protests. While it is true that three children did not oppose the summons, these were the Respondent’s own children, and it may well be assumed that they were on their mother’s side. From the text of the ruling, it seems that beyond considering the plea for a larger share by the Respondent, the trial court did not fully address its mind to the family dynamics at play and the circumstances and interests of all beneficiaries, with a view to balancing their interests in order to arrive at a fair and equitable distribution. That is the objective of the distribution. 2. Thus, despite the Appellant’s spirited protests, the trial court without making any serious enquiry as to its equity and fairness, adopted wholesale the Respondent’s proposal that two thirds of the estate funds be apportioned to her because of her age. Five children, including three of her own, survived the deceased. The apportionment of two thirds of the funds to the Respondent meant that five children would share between them one third of the funds stated to be in the sum of Kes. 2,500,000/-. 3. By any estimate, the share to the Respondent is manifestly disproportionate, her age and the financial standing of the Appellants, the latter which, was not demonstrated, notwithstanding. The court therefore agrees with the Appellants that the mode of distribution of the estate was flawed. While the Respondent as a spouse deserved a higher portion of the estate of the deceased, the children of the deceased were also entitled to a fair and equitable share. 4. In the result, the court is inclined to interfere by allowing this appeal in part. Accordingly, the court hereby sets aside the impugned ruling of the lower court, and subsequent orders, and substitutes therefor the following orders: - 5. **The Appellants’ protests in the lower have been allowed in part.** 6. **The confirmed grant issued in favour of Lucy Gathoni Njama in the lower court is hereby revoked.** 7. **Pursuant to Section 66(a) of the Law of Succession Act, Stephanie Kuria, the 2nd Appellant is hereby appointed as co-administrator in addition to the Respondent Lucy Gathoni Njama.** 8. **The sole asset of the estate comprising of monies held in a bank account shall be distributed among the six beneficiaries of the estate in the following shares: -** 9. **Lucy Gathoni Njama (spouse) - 40%** 10. **Norince Wambui Gichinga (daughter) - 12%** 11. **Maureen Wamuyu (daughter)- 12%** 12. **Martin Mwangi Mwaniki (son)- 12%** 13. **Sidney Njama Mwaniki (son)-12%** 14. **Stephanie Kuria (daughter) - 12%** 15. **A fresh grant and confirmed grant shall issue accordingly.** 16. **The parties shall bear their owns costs in the appeal, in view of the nature of the litigation.** **DELIVERED AND SIGNED ELECTRONICALLY AT KAJIADO ON THIS 21ST DAY OF MAY 2026** **** **C. MEOLI** **JUDGE** **In the presence of:** **For the Appellants: Messrs. Mwachofi and Mbaya** **For the Respondent: Mr. Orina** **C/A: Lepatei**