In re Estate of Wanjihia (Deceased) (Probate & Administration E018 of 2021) [2026] KEHC 10198 (KLR) (19 June 2026) (Ruling)

In re Estate of Wanjihia (Deceased) (Probate & Administration E018 of 2021) [2026] KEHC 10198 (KLR) (19 June 2026) (Ruling) Neutral citation: [2026] KEHC 10198 (KLR) Republic of Kenya In the High Court at Kiambu Probate & Administration E018 of 2021 MN Mwangi, J June 19, 2026 IN RE - ESTATE OF ONESMUS MURIU WANJIHIA (DECEASED) Between Margaret Wangui Muriu Applicant and Michael Wanjihia Onesmus, Cecilia Wangui Muturi, Theresia Mukuhi Macharia, Salome Nyagititu Mundia 1st Interested Party Dr Francis Kinuthia, Dr. Peter Wanjihia Muriu 2nd Interested Party Ruling 1.Before the Court is a General Summons dated 24th May 2023 filed pursuant to Sections 2 & 47 of the Law of Succession Act and Rules 59(5), 60, 63, 64, 72 and 73 of the Probate and Administration Rules. The applicant stated that she is a beneficiary of the deceased’s Estate as a daughter. She prays for this Court to find that it lacks jurisdiction to hear the Succession matter under Section 2 of the Law of Succession Act, because the deceased died on or about 29th December 1976, given that the Law of Succession Act commenced on 1st July 1981. She prays for an order that the matter be fully considered under the Kikuyu customary law and be referred to area Elders. 2.The application is premised on the grounds set out on the face of it, and the affidavit sworn on 24th May 2023, by Ms Margaret Wangui Muriu, the applicant herein. Ms Muriu stated that she is a daughter of the deceased hence a beneficiary of his Estate, which was confirmed vide the 1st interested parties’ application dated 4th July 2023. She stated that the deceased died on 29th December 1976 before the commencement of the Law of Succession Act and that the case should be determined by Kikuyu Elders, and not by the Court. The applicant urged this Court to find that it has no jurisdiction to entertain this cause. 3.The 1st interested parties opposed the Summons through a joint replying affidavit sworn on 31st May 2023 by Michael Wanjihia Onesmus, Cecilia Wangui Muturi, Theresia Mukuhi Macharia and Salome Nyagititu Mundia. They averred that they consider the applicant a beneficiary of the deceased’s Estate, because she was raised within their homestead, despite not having been sired by the deceased, since she was born long after his death. 4.They stated that the applicant was brought on board by the 2nd interested parties to impede the hearing of this cause. They further stated that the 2nd interested parties were against physical attendance at the hearing of the application for Revocation of Grant, before the Court delivered itself on the need for all parties to attend Court to tender their evidence viva voce. 5.The 1st interested parties contended that the 2nd interested parties are the ones who influenced the applicant to file the instant application, yet they are the ones who filed these proceedings knowing well that the deceased died in 1976, before commencement of the Law of Succession Act in 1981. 6.The 1st interested parties deposed that the deceased’s properties which form the subject of these succession proceedings, are all held under statutory tenure as the same are registered under the Registered Land Act (Repealed). They contended that the applicant lacks truthfulness and genuineness of the allegations. They also contended that under Section 2 of the Magistrates’ Court Act, land held under the Registered Land Act cannot form the basis of a claim under customary law, and that a claim to inherit such land, cannot be subject to Sections 2 and 9 of the Magistrates’ Court Act. 7.The 1st interested parties averred that the deceased was of Kikuyu ethnicity and his Estate is governed by Kikuyu customary law which is notorious for stating that only sons of a deceased can inherit, and if a daughter remained unmarried past the marriage age, the “muramati”, usually the eldest son of the deceased, can allocate a piece of land for her use during her lifetime. They stated that the Kikuyu customary law of inheritance is based on a patriarchal system which favours males over females and is discriminatory of the constitutional rights of a girl child. They asserted that they did not understand how the applicant herein seeks to use Kikuyu customary law which is discriminatory to lay a claim in the deceased’s Estate. 8.They also argued that African customary law is not documented and it must be established for the Court’s guidance by the party intending to rely on it. They urged this Court to hold that the application herein has no merits, is vexatious and has been brought in utmost bad faith and it should be dismissed. 9.The application was canvassed by way of written submissions. The applicant filed submissions dated 1st August 2023 in person. The 1st interested parties’ written submissions dated 22nd August 2023 were filed by the law firm of E.K. Njagi & Co. Advocates and the 2nd interested parties’ filed submissions dated 30th August 2023 through the law firm of Wambugu Kariuki & Associates. 10.The applicant submitted that under Section 2 of the Law of Succession Act, where a deceased died before commencement of the Law of Succession Act, their Estates are subject to written laws and customs applying at the date of death. She held the position that since the deceased died on 29th December 1976, his Estate should be governed by the written laws and customs applicable at that time. She relied on the case of the Estate of Stanley Kimani Karanja (Succ Cause No. 1475 of 2014 cited as Monica Wangui Kimani & another v Josphat Mburu Wainaina [2015] KEHC 7209 (KLR). She submitted that this Court does not have the jurisdiction to handle the Succession matter, and relied on the case of the Owners of the Motor Vessel ‘Lilian S’ v Caltex Oil Kenya Ltd (1989) KLR 1 and the Court of Appeal decision in Kenya Ports Authority vs Modern Holdings EA (Ltd) Appeal No. 108 of 2016 [2017] eKLR. The applicant submitted that issues of jurisdiction should be raised at the earliest opportunity by any party or suo moto. 11.She denied that she was influenced by the 2nd interested parties herein, and maintained that this Court does not have jurisdiction, and it should refer the matter to Elders. 12.Mr C. K. Njagi, learned Counsel for the 1st interested parties submitted that the Law of Succession Act provides the governing law for administration of the Estates of deceased persons, regardless of the date of death. He relied on Section 2 of the said Act. He cited the case of Re Estate of Peter Gathogo (deceased) [2020] eKLR, and stated that the Kikuyu customary law discriminated against girls as they could not inherit, which was changed by the Constitution of Kenya under Articles 10 and 27. He cited the case of Wambugi w/o Gatimu vs. Stephen Nyaga Kimani (1988-92) 2 KAR 292, to support the said position. 13.He argued that African customary law is not documented and must be established for the Court’s guidance, and relied on the case of Otieno v Ougo & another [2008] 1 KLR, to support his assertion. He maintained that the applicant moved this Court under the influence of the 2nd interested parties to defeat the main substance of the 1st interested parties’ case. He urged this Court to dismiss the application. 14.Mr. Kariuki, learned Counsel for the 2nd interested parties submitted that the applicant was introduced as a beneficiary of the deceased’s Estate by the 1st interested parties and vide a Consent Order made on 22nd June 2023. He submitted that it is obvious that it is the 1st interested parties who brought the applicant to the case and she is already a beneficiary of the deceased’s Estate, yet they keep on alleging that it is the 2nd interested parties who brought her on board so as to attempt to paint the latter in bad light, yet the record speaks for itself. 15.On the issue of whether or not this Court has the jurisdiction to determine the issue of the applicant’s inheritance, he cited the case of Re Estate of Peter Gathogo (Deceased) [2020] KEHC 4824 (KLR), Re Estate of Mwangi S/O Ngamba Alias Mwangi Ngamba (Deceased) [2015] eKLR, Andrew Manunzyu Musyoka (Deceased) [2005] KEHC 514 (KLR), Kimondo v Attorney General [2022] KECA 1008 (KLR), Kenya Ports Authority v Modern Holdings [E.A] Limited (supra) and the Owners of the Motor Vessel ‘Lilian S’ vs Caltex Oil Kenya Ltd (supra). 16.Counsel distinguished the authorities relied on by the 1st interested parties to the facts of this case and contended that it is unreasonable for the 1st interested parties to appear to be restricting themselves to Kikuyu African customary law, as if they were oblivious to the global developments on the equalization of the boy/girl child, and the Constitution of Kenya, 2010. 17.Despite making the foregoing submissions, Mr. Kariuki supported the Notice of Preliminary Objection and contended that this Court does not have the jurisdiction to hear the matter, which should be determined by Kikuyu customary law Elders. Analysis And Determination. 18.I have considered the General Summons, as well with the supporting affidavit, the replying affidavit and the submissions filed by Counsel for the parties. The issue that arises for determination is whether this Court has the jurisdiction to hear the succession cause for the deceased’s Estate. 19.The Preliminary Objection herein, is on the issue of jurisdiction. In the case of Mukisa Biscuits Manufacturing Co. Ltd –vs- West End Distributors Ltd (1969) EA 696, the Court defined what constitutes a valid Preliminary Objection as follows-“----a preliminary objection consists of a point of law which has been pleaded, or which arises by clear implication out of pleadings, and which if argued as a preliminary point may dispose of the suit. Examples are an objection to the jurisdiction of the Court or a plea of limitation or a submission that the parties are bound by a contract giving rise to the suit to refer the dispute to arbitration”.In the same case, Sir Charles Newbold, P, stated thus-“a preliminary objection is in the nature of what used to be a demurrer. It raises a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion. The improper raising of preliminary objections does nothing but unnecessarily increase costs and on occasion, confuse the issue, and this improper practice should stop”. 20.It is trite that a Court derives its jurisdiction either from the Constitution or Statute or both, as was held by the Supreme Court of Kenya in the case of Samuel Kamau Macharia vs KCB & 2 others, Civil Application No. 2 of 2011, wherein the said Court stated as follows -“A Court’s jurisdiction flows from either the Constitution or Legislation or both. Thus a Court of Law can only exercise jurisdiction as conferred by the Constitution or other written law. It cannot arrogate to itself jurisdiction exceeding that which is conferred upon it by Law” 21.The applicant relied on the provisions of Section 2(2) of the Law of Succession Act, and stated that since the deceased died prior to the commencement of the said Act, then the proceedings in the main cause herein should revert to the Kikuyu Elders for determination. The said provisions state as follows -“2(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 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.” 22.The Court in the case of Kinyanjui v Muchiri & 2 others [2023] KEHC 1590 (KLR), when faced with an issue similar to the instant one held as follows -“From the proceedings it was not disputed that the deceased died intestate on 2nd December 1970 before the enactment of the Law of Succession Act and therefore the said estate was subject to the provision of Section 2(2) of the Act which provides that the estate of a person dying before the enactment of the Act is subject to written laws and customs applying at the date of death.The trial Court can therefore not be faulted in his holding that the applicable law in respect of the estate herein was the Kikuyu Customary Law subjected to Section 3(2) of the Judicature Act in as far as the same is not in conflict with any written law and not repugnant to justice and morality. I therefore find no merit on the submission by the Appellant that the Court erred in applying the Kikuyu Customary law in the distribution of the estate and accordingly dismiss the same. 23.Customary law is applicable so far as it is not repugnant to justice and morality and it should not be inconsistent with any written law. This Court relies on the Judicature Act under Section 2 which states that-“(2)The High Court, the Court of Appeal and all subordinate Courts shall be guided by African customary law in civil case in which one or more of the parties is subject to it or affected by it, so far as it is applicable and is not repugnant to justice and morality or inconsistent with any written law, and shall decide all such cases according to substantial justice without undue regard to technicalities of procedure and without undue delay.” (Emphasis added). 24.In this matter, it is undisputed that the deceased died in 1976 prior to the commencement of the Law of Succession Act and the proper channel to address the succession cause is through the Kikuyu customary law. This Court however notes that vide a Consent dated 20th June 2023, which was adopted as an Order of the Court, the applicant herein, Margaret Wanjiru Muriu, was joined as a beneficiary of the Estate of Onesmus Wanjihia Muriu. This Court also takes cognizance of Articles 10 and 27 of the Constitution of Kenya, and the proviso to Section 2 of the Law of Succession Act. The latter provisions state that -“but nevertheless, the administration of their estates shall commence or proceed so far as possible in accordance with this Act.” 25.This Court notes that this is a matter which was previously referred to mediation on 16th October 2023 by Hon. Judge Mshila, and the matter was mentioned on several occasions until 30th June 2025, when it was noted that mediation had failed. This Court is of the considered view that referring the matter to the Kikuyu Elders for determination, will still be a mode of Alternative Dispute Resolution (ADR), as it will still be mediation. This Court doubts that referring the matter to Kikuyu Elders will bear any fruit at this point in time. 26.This Court has considered the history of this matter, the date the deceased died and the fact that the matter has already commenced in this Court, and hereby directs that the administration of the deceased’s Estate proceeds in Court, in accordance with the Law of Succession Act. 27.The upshot is that the application dated 24th May 2023 lacks merits. The same is dismissed. This being a family matter each party shall bear his/her own costs.It is so ordered. DATED, SIGNED AND DELIVERED IN KIAMBU ON 19TH DAY OF JUNE 2026. RULING DELIVERED THROUGH MICROSOFT TEAMS ONLINE PLATFORM.NJOKI MWANGIJUDGEIn the presence of:Mr. Kariuki for the petitioners (2nd interested parties) and h/b for the applicantMr. E.K. Njagi for the objectors (1st interested parties)Ms Julia – Court Assistant.NJOKI MWANGI, J.