https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8302

Maguta v Karugu & 4 others (Succession Cause E108 of 2021) [2026] KEHC 8302 (KLR) (11 June 2026) (Ruling) Neutral citation: [2026] KEHC 8302 (KLR) Republic of Kenya In the High Court at Kajiado Succession Cause E108 of 2021 CW Meoli, J June 11, 2026 IN THE MATTER OF THE ESTATE OF THE LATE LUCY WAMBUI MAGUTA Between Esther Wangari Maguta Protestor and James Maina Karugu 1st Respondent Jane Wanjiru Maguta 2nd Respondent Grace Muthoni Maguta 3rd Respondent Catherine Njoki Maguta 4th Respondent Caroline Wambui Maguta (Sued as the Daughter of Alice Waithera Maguta - Deceased) 5th Respondent Ruling 1.This ruling relates to the summons for confirmation of grant dated 15.07.2023 and the affidavit of protest dated 12.02.2025. The summons for confirmation of grant seeks that the grant of letters of administration made to the James Maina Karugu (hereafter the Adminstrator) on the 27.06.2022 be confirmed in terms of paragraph 5 of the affidavit sworn in support of the summons. 2.By his supporting affidavit dated 15.07.2023, the Administrator deposes that his late mother, Lucy Wambui Maguta (hereafter the deceased) died intestate on the 25th day of March 2009. That subsequently a grant of letters of administration in respect of the estate of the deceased was made to him on the 27th day of June 2022. 3.The deponent further states that the deceased was survived by himself and the following beneficiaries: Jane Wanjiku Maguta (Daughter), Esther Wangari Maguta (Daughter), Grace Muthoni Maguta (Daughter), Catherine Njoki Maguta (Daughter), and Caroline Wambui Maguta (Grand Daughter, being the daughter of Alice Waithera Maguta, deceased). The deponent confirms that the deceased was not survived by any other dependants and that no application for provision for dependants is pending before the court. 4.With regard to the distribution of the estate, the deponent states that the identification and shares of all persons beneficially entitled to the said estate have been ascertained and determined as follows: that land parcels Ngong/Ngong/18491 and Ngong/Ngong/18489 be shared by all the beneficiaries equally; and that one and a half acres of ancestral land in Kigumo be shared equally by all the beneficiaries except the Administrator. 5.In response Esther Wangari Maguta (hereafter the Protestor), herself a daughter to the deceased daughter of the deceased herein, swore an affidavit of protest, in opposition to the proposed mode of distribution contained in the summons for confirmation of grant. According to the Protestor, she was a beneficiary of the estate and the basis of her opposition to the proposed mode of distribution is that it fails to take into account the deceased’s wishes, gifts previously given to certain beneficiaries during the deceased’s lifetime, and the actual occupation and use of some of the estate properties. 6.The Protestor averred that although the court previously found that the deceased did not leave behind an oral will, she had during her lifetime distributed portions of her property among her children. According to the Protestor, the Administrator had already benefitted from an allocation of ancestral land by his father and was therefore sufficiently provided for; that Jane Wanjiku Maguta had been gifted approximately two acres of land in Kigumo and a house at Jericho Estate and; and that the Protestor was allocated approximately 2.4 hectares comprising land parcels No. Ngong/Ngong/18490, 42609, 42610, 42611 and 42612 situated in Ngong. She therefore contended that the remaining daughters were not entitled to further shares of the estate land because, under Kikuyu customary practices, they had been provided for through their respective spouses. 7.The Protestor further asserted that she has openly and continuously lived and farmed on the Ngong properties since 2003 and had developed the land by cultivating crops and constructing a house. Hence, this possession should be taken into account when distributing the estate. Further asserting that the Administrator had in 2008 fraudulently sold part of parcel Ngong/Ngong/18490 to one Charles Mwangi Kinaro, and created an access road, without the consent of the deceased. A disposition which the deceased allegedly successfully challenged before the Kajiado Land Disputes Tribunal, the land reverting to the deceased, upon the Tribunal award being subsequently adopted as a judgment of the court. 8.Additionally, the Protestor complained that several properties had been omitted from the schedule of estate assets. Including a house at Uhuru Estate Settlement Scheme, Nairobi, and a stall at Jericho Market, Nairobi, both of which belonged to the deceased hence form part of the estate available for distribution. In her view, the proposed mode of distribution unfairly benefits some beneficiaries while overlooking previous gifts received during the deceased’s lifetime. 9.In conclusion, the Protestor urged the court to reject the proposed distribution and instead distribute the estate in accordance with the deceased’s wishes and prior gifts. She proposed that the Ngong parcels measuring approximately 2.4 hectares be allocated to her, and that the gifts previously given to the Administrator including property unlawfully disposed of by him and to Jane Wanjiku Maguta be considered in determining the final distribution of the estate. 10.By his replying affidavit, the Administrator, opposed the protest in his own behalf and on behalf of the other beneficiaries, who are children of the deceased. Pointing out that the issue whether the deceased left an oral or written will had already been determined by this court and is presently the subject of a pending appeal, he asserted that this court lacked jurisdiction to revisit that question. 11.Regarding the ancestral land in Kigumo, Murang’a, he swore that because he was the only son in the family his share thereof had been transferred to him by his paternal uncle pursuant to the wishes of his grandmother. Stating further that the said land parcel never belonged to the deceased and consequently did not form part of her estate. He asserted further that parcel Loc.18/Kirere/832, measuring approximately 0.64 hectares, was registered in the deceased’s name and had never been transferred to any other person. He acknowledges that this property was inadvertently omitted from the list of assets proposed for distribution. 12.The deponent disputed the protestor’s claims regarding the Jericho Estate property. He states that House No. 3200, Block 10, Jericho Estate, Nairobi, was the property of the Nairobi City County Government and was not owned by the deceased. According to him, the 2nd Respondent, Jane Wanjiku Maguta, is merely the recognized tenant of the premises. He relied on the tenancy card annexed to the affidavit and contended that the property cannot therefore be considered part of the deceased’s estate. 13.With regard to the Ngong properties, the Administrator asserted that the deceased herself subdivided the original parcel Ngong/Ngong/18489 into three separate parcels, namely Ngong/Ngong/18489, 18490 and 18491, and informed her children the reasons for the subdivision. Denying any fraud or unlawful dealings in relation to the properties, he asserted that prior to her death the deceased openly and voluntarily sold parcel Ngong/Ngong/18490 to Charles Kinaro. Adding that he had in his possession title documents relating to parcels Ngong/Ngong/18489 and Ngong/Ngong/18491 and was never involved in any fraudulent transaction concerning the land. 14.The Administrator in challenging the Protestor’s alleged long occupation of the Ngong property averred that she briefly moved onto the property together with the deceased and later relocated to Savannah Estate in 2016. Clarifying that the house situated on parcel Ngong/Ngong/18489 was originally constructed by their father in 1971 and renovated by him in 1994. According to him, the Protestor had been leasing portions of the land to farmers and renting out the house without accounting for the income to either the Administrator or the other beneficiaries. 15.Finally, acknowledged that parcel Loc.18/Kirere/832 formed part of the estate and should be distributed. However, stating that, in accordance with the deceased’s wishes, the said non-ancestral properties should be shared equally among the daughters because he had already received ancestral land during the deceased’s lifetime. He asserted that the proposed mode of distribution grants the Protestor an equal share with the other beneficiaries and does not favour any beneficiary over another. Consequently, he urged the court to dismiss the protest and to proceed to confirm the grant in accordance with the proposed distribution scheme. Submissions 16.The court directed that the summons for confirmation and the protest be canvassed by way of written submissions. The Protestor’s submissions are not on the CTS portal. 17.The Respondents’ submissions are dated 13th October 2025. The Respondents submit that the protest filed by Esther Wangari Maguta is devoid of merit and should be dismissed. They argue that the thrust of the protest is the assertion that the estate should be distributed in accordance with the deceased’s alleged oral wishes. An issue the Court had already determined, in its ruling delivered on 2nd October 2024, having found that there was no evidence of a valid oral will. According to the Respondents, that finding has not been reviewed or set aside, and therefore remains binding. They argued that the Court cannot revisit the issue and that, once the question of an oral will was settled, the protest lost its legal foundation. They further noted that despite being granted an opportunity by the Court, the Protestor did not file submissions in support of her protest. 18.The Respondents maintain that the estate falls to be distributed as an intestate estate under the provisions of the Law of Succession Act. The Respondents reiterated the contents of their replying affidavit dated 4th April 2025, in which they disputed the Protestor’s allegations regarding gifts inter vivos and the inclusion of certain assets. 19.The Respondents further submitted that the application before the Court concerns only the assets that belonged to the deceased and that the proposed mode of distribution represents an equitable sharing of those assets among the beneficiaries. They emphasized that the 1st Respondent, as Administrator, has proposed an equal distribution of the estate and that all beneficiaries save for the Protestor have consented to the proposed mode of distribution. They contend that the evidence previously adduced before the Court, including viva voce testimony during the revocation proceedings, supported both the appointment of the 1st Respondent as administrator and the proposal that the beneficiaries should share the estate equally. 20.With regard to assets omitted from the schedule of the estate, the Respondents conceded that indeed the land parcel LR No. Loc.18/Kirere/832 was inadvertently left out. Adding that there is already consensus among the beneficiaries that this property should be included among the estate assets and distributed equally among the daughters of the deceased, as earlier proposed by Grace Muthoni Maguta in her affidavit dated 14th March 2024. They therefore urge the Court to amend the list of estate assets to include the said property. 21.In conclusion, the Respondents urged the Court to allow the summons for confirmation of grant dated 15th July 2023 and confirm the grant in accordance with the proposed mode of distribution, which they described as fair, lawful, and consistent with the principles of equality among beneficiaries. Analysis and Determination 22.The court having considered the material canvassed in respect of the summons for confirmation and protest takes the following view of the matter. 23.The protest is substantially anchored on the contention that the deceased had distributed her property during her lifetime and had expressed wishes as to how the estate ought to devolve. However, by its ruling delivered on 2nd October 2024, the court found that the deceased did not make any valid oral will. That finding has neither been reviewed nor set aside and remains binding upon the parties. Therefore, the court cannot, at the stage of confirmation of grant, revisit the question of whether the deceased left an oral will. Consequently, the estate falls for distribution as an intestate estate under the provisions of the Law of Succession Act. 24.The protestor further urged the court to take into account alleged gifts inter vivos made to the 1st and the 2nd Respondents, a matter addressed by their responses. The burden lay upon the Protestor to establish, on a balance of probabilities, that such gifts were made by the deceased and that they ought to be brought into account in the distribution of the estate. The evidence placed before the court does not sufficiently demonstrate that the ancestral land in Kigumo was a gift to the Administrator from the deceased. On the contrary, the evidence of the Administrator is that the said land parcel was ancestral land, and was transferred to him by his paternal uncle pursuant to a bequest made to him by his grandmother as the only son of the family. On the evidence, that property never formed part of the deceased’s estate, hence it cannot be taken into account in distributing the estate before this court. 25.As regards House No. 3200, Block 10, Jericho Estate, the evidence before the court shows that the property belongs to the County Government of Nairobi and that the 2nd Respondent is merely a tenant. No documentary evidence has been produced to establish its ownership by the deceased. Similarly, the alleged stall at Jericho Market and the house at Uhuru Estate Settlement Scheme have not been sufficiently shown to belong to the deceased. A succession court can only distribute assets proved to have formed part of the free property of the deceased at the time of death. The court therefore declines to include those properties in the schedule of assets for distribution. 26.The court has also reviewed the Protestor’s allegations concerning the sale LR. No. Ngong/Ngong/18490 to Charles Mwangi Kinaro. The evidence shows that the parcel is no longer among the assets proposed for distribution and that disputes concerning the sale were the subject of proceedings before the Land Disputes Tribunal prior to the death of the deceased. The present proceedings are concerned with confirmation of grant and distribution of the estate. The court is not called upon to adjudicate afresh the validity of historical land transactions beyond determining the assets presently available for distribution. These transactions have no bearing to the dispute the land in question having apparently been disposed of in the lifetime of the deceased. 27.The court however notes the common position taken by the Respondents that land parcel LR No. Loc.18/Kirere/832 remains registered in the name of the deceased and was inadvertently omitted from the schedule of assets. The administrator has conceded the omission and the beneficiaries, save for the Protestor appear to be in agreement that the property forms part of the estate and available for distribution. The court is therefore satisfied that the said parcel ought to be included among the estate assets. 28.Under Section, 38 of the Law of Succession Act, “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.” The deceased herein was survived by her daughters, namely Jane Wanjiku Maguta, Esther Wangari Maguta, Grace Muthoni Maguta and Catherine Njoki Maguta, and a granddaughter Caroline Wambui Maguta who represents the estate of the deceased’s daughter Alice Waithera Maguta, now deceased. There is no lawful basis placed before the court to justify exclusion of any beneficiary or the allocation of a larger share to any one beneficiary. The court must be guided by the principle of equity. 29.In the result, the court finds that the protest dated 12th February 2025 is without merit and is hereby dismissed. The summons for confirmation of grant dated 15th July 2023 is allowed save that the property described as LR. No. Loc.18/Kirere/832 will be included among the estate assets. The assets of the estate, namely land parcels LR No. Ngong/Ngong/18489, Ngong/Ngong/18491, shall be distributed equally among the all the beneficiaries, while the land parcel LR No. Loc.18/Kirere/832, will be shared equally among the daughters of the deceased. In all instances, the share due to Alice Waithera Maguta (deceased) will vest in her daughter Caroline Wambui Maguta by way of representation. Parties will bear their own costs in view of the nature of the dispute. DELIVERED AND SIGNED ELECTRONICALLY AT KAJIADO ON THIS 11TH DAY OF JUNE 2026.C.MEOLIJUDGEIn the presence of:For the Administrator & Respondents: Mr. OlondeProtestor: AbsentC/A: Lepatei