In re Estate of Kimani Gitere (Deceased) (Succession Cause 777 of 1985) [2026] KEHC 1533 (KLR) (13 February 2026) (Ruling)

REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAIROBI SUCCESSION CAUSE NO. 777 of 1985 IN THE MATTER OF THE ESTATE OF KIMARI GITERE (DECEASED) RULING 1. Pursuant to ruling delivered on 13th February 2025, JEMIMAH JANE WACEKE KIMARI the Administrator herein presented Summons for Confirmation of Grant dated 4th March 2025, under Section 71 of the Law of Succession Act. The deceased was polygamous and the Administrator proposes that the property be distributed as follows- S/NO. ASSETS 1ST HOUSE 2ND HOUSE a) LR.NO. Elizabeth Wacu Robert Mwangi 1.087 acre Judy Githunguri/Kiaria/273 Mwangi 2.174 acre Nyawira 1.087 acre Florence Dina Wambui Kamau Wangui Kimari 2.17 acres 2.174 acre Charity Waceke Kimari 2.17 acres Jemima Waceke Kimari Winnie Wanjiru Kimari 2.17 acre 2.174 acre Ruth Njeri Kimari 2.17 acres, Edward Kimari Muturi 2.174 acre Hellen Nyambura and Victor Mburu Kamau as trustees for them and 2 Others 1.087 acre Edith Wamaitha and Kenneth Kimari Kamau as trustees for them and 5 Others 1.087 acre b) LR.NO. Elizabeth Wacu Robert Mwangi 0.62 Acres Judy Gatamaiyu/Gachoiri/ Mwangi 1.24 acre Nyawira 0.62 acres Florence 316 Dina Wambui Kamau Wangui Kimari 1.24 acres 1.24 acre Shem Kihoro Kimari 1.24 acres Jemima Waceke Kimari Winnie Wanjiru 1.24 acres Ruth 1.24 acre Njeri Kimari 1.24 acres Edward Kimari Muturi 1.24 acre Hellen Nyambura and Victor Mburu Kamau as trustees for them and 2 Others 0.62 acre Edith Wamaitha and Kenneth Kimari Kamau as trustees for them and 5 Others 0.62 acre c) Plot No. 28 1ST HOUSE 2ND HOUSE Githunguri Market Hellen Nyambura and Winnie Wanjiru Kimari ½ share Victor Mburu Kamau as trustees for them and 2 Others ¼ share Edith Wamaitha and Kenneth Kimari Kamau as trustees for them and 5 Others ¼ share d) Plot No. 2 Gathanji Edward Kimari Gitere Shem Kihoro Kimari ½ share ½ share e) Plot No. 76 Jemima Waceke Ruth Njeri Kimari ½ share Githunguri Kimari ½ share f) LR.Githunguri/Kiaria/Nil Florence Wangui Kimari ½ share T.236 Robert Mwangi & Judy Nyawira ·½ share jointly g) LR.Githunguri/Kiaria/ Nil Winnie Wanjiru Kimari ½ share T.132 Charity Waceke Kimari ½ share h) LR.Githunguri/ Edward Kimari Gitere Nil Kiaria/T.3 Whole .3 i) LR.Githunguri/ Hellen Nyambura and Nil Kiairia/ T.133 Victor Mburu Kamau as trustees for them and 2 Others- Whole j) LR.Githunguri/ Elizabeth Wacu Robert Mwangi ¼ acre Judy Githunguri /165 Mwangi 0.16 acre Nyawira ¼ acre Florence Wangui Dina Wambui Kamau 0.5 0.16 acre Acre Jemima Waceke Kimari 0.5 acre Edward Kimari Muturi 0.16 acre k) LR. K. Jemima Waceke Kimari Ruth Njeri Kimari ½ share Githunguri/T.209 ½ share l) ICDC Shares Edith Wamaitha ½ Shem Kihoro Kimari ½ share share m)Rioki Estates Edith Wamaitha ½ Charity Waceke ½ share share n) Kiaria Co-operative Edith Wamaitha ½ Shem Kihoro Kimari ½ share shares share o) Ndumberi Co- Edith Wamaitha ½ Shem Kihoro Kimari ½ shar e operative shares share p) Breweries shares Edith Wamaitha ½ Shem Kihoro Kimari ½ share 2. Three affidavits of Protest have been filed. Charity Waceke Kimari is a daughter of the deceased. She states that the proposed mode of distribution does not factor in gifts by the deceased person and the present occupation of parcels of land by the beneficiaries. She states that she is entitled to a share of L.R. No. Gatamaiyu/ Gachoiri/316. Further she contends that Florence Kimari has been allocated an unjustifiable large share of the estate. 3. She contests the allocation of a portion of LR K Githunguri/ T.209 to Ruth Njeri Kimari (Now Deceased) as the property should be transmitted to the children of Joyce Wacu (Deceased). She avers that both that parcel and LR NO. Githunguri/ Githunguri/165 should be allocated to the children of Joyce Wacu Kimari (Deceased)- Judith Nyawira Wanjohi and Robert Mwangi Wanjohi. She reiterates that the parcels of land were gifted to the two by the deceased. Further she contends that Shem Kihoro Kimari was gifted 8.7 acres by the deceased and this should be factored into account. She urges that the Court proceed to distribute the estate as per the previous grant 4. Judith Nyawira Wanjohi’s affidavit of protest is dated 14th March 2025. She is a granddaughter of the deceased, she contends that the proposed mode of distribution does not incorporate gifts by the deceased and the current occupation of the land. As does Charity Waceke Kimari, she submits that parcels no. LR K Githunguri/ T.209 and LR NO. Githunguri/ Githunguri/165 were gifted to her mother Joyce Wacu (deceased); the parcels should be allocated to her and her brother. She contends that the 1st House is unfairly benefitting from assets that were allocated to the 2nd House. 5. Winnie Wanjiru Kimari is a daughter to the deceased, her affidavit of protest is sworn on 4th March 2024, she challenges the summons on essentially the same grounds as does Charity Waceke Kimari. The Administrator has sworn a further affidavit on 5th June 2025 and she proposes to adjust the mode of Distribution so that Charity Waceke Kimari is allocated 1- acre land out of LR Gatamaiyu/ Gachoiri/ 316 and adjusting the shares of the other beneficiaries so that they each get a share. She disagrees with the other proposals. 6. The summons was canvassed via written submissions. The submissions of the administrator are dated 9th October 2025 and reference is made to the decision in the Matter of the Estate of Simiyu Wasike Walubengo (Deceased) Succession Cause No. 17 of 2018 [2022] 12299 KLR on the distribution of the estate of a polygamous deceased person and the decision In the Matter of the Estate of Mikirima Karingu (deceased) Succession Cause 167 of 1979 [2022] KEHC 3119 KLR on the judicial principle that litigation must come to an end. 7. The protestors submissions are dated 1st September 2025 and the frame the following as the issues for determination- a) Whether the properties in dispute being; LR K Githunguri/ T.209 and LR NO. Githunguri/ Githunguri/165 should be redistributed to other beneficiaries or should be distributed to Judith Nyawira and Robert Mwangi Wanjohi as the children of Joyce Wacu Kimari, and b) Whether the distribution on the part of the 1st Household should be interfered with. 8. The submission restates the averments in the affidavits of protest so I need not set them out in detail here. ANALYSIS AND DETERMINATION 9. This being a summons for confirmation, the issue for determination is how the net Estate of the Deceased should be divided among the rightful beneficiaries. 10. The parties are agreed on who the beneficiaries of the Estate are. The issue of the assets of the deceased available for distribution was resolved by the orders of Hon. Musyoka J on 18th December 2015. At this stage of the proceedings and in light of the decision delivered 13th February 2025, the question of whether the two contentious properties (LR K Githunguri/ T.209 and LR NO. Githunguri/ Githunguri/165) comprise part of the estate of the deceased is not on the cards for deliberation. 11. The other issue is how the assets should be distributed, the 2nd House is adamant that the properties LR K Githunguri/ T.209 and LR NO. Githunguri/ Githunguri/165 should be vested in Judith Nyawira and Robert Mwangi Wanjohi. The substantive ground is that the parcel was gifted to their mum. As already stated a determination has already been made on this point. 12. This is a polygamous home; the applicable law is Section 40 of the Law of Succession Act provides- 40. Where intestate was polygamous (1)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 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. (2)The distribution of the personal and household effects and the residue of the net intestate estate within each house shall then be in accordance with the rules set out in sections 35 to 38. 13. The Law requires that division of the net intestate estate shall, in the first instance, be among the houses according to the number of children in each house, adding any wife surviving him as an additional unit to the number of children. The surviving wife is an additional unit to the children. 14. In Re Estate of John Musambayi Katumanga – (Deceased) [2014] eKLR Musyoka J. stated as follows; Section 40 was not designed for the circumstances of the instant estate, but it would appear more appealing for the purpose of the distribution of the said estate than Section 35. The spirit of Part V, especially Sections 35, 38, and 40, is equal distribution of the intestate estate amongst the children of the deceased. There have been debates on whether the distribution should be equal or equitable. My reading of these provisions is that they envisage equal distribution for the word used in Sections 35 (5) and 38 is “equally” as opposed to “equitably”. This is the plain language of the provisions. The provisions are in mandatory terms – the property “shall … be equally divided among the surviving children.” Equal distribution is envisaged regardless of the ages, gender, and financial status of the children. 15. On his part Hon. Joel Ngugi J. (as he then was) in re Estate of Kamau Rungathu (Deceased) (Succession Cause 479 of 1994) [2022] KEHC 14417 (KLR) (31 October 2022) (Judgment) was of the view that section 40 of the Law of Succession Act is meant to ensure the equitable distribution of the estate, and that he held as follows: The literal interpretation of the above provision is that the estate is first distributed among the houses, depending on the number of children in each house, with any surviving spouse being an additional unit. Thereafter, the assets allocated to each house are distributed within the house in accordance with sections 35 to 38 of the Law of Succession. 16. In Scolastica Ndululu Suva v Agnes Nthenya Suva [2019] eKLR, the Court of Appeal recommended a case-to- case application of Section 40 of the Law of Succession Act stating It is therefore evident that, although section 40 of the Law of Succession Act provides a general provision for the distribution of the estate of a polygamous deceased person, the court has discretion to take into account the factual circumstances of the particular case that may be relevant in ensuring equitable and fair distribution of the estate. 17. The Court of Appeal further observed in Jane Nyambura Ndungu v Beatrice Wangari Ndungu & 2 Others [2021] eKLR: Section 40 of the Law of Succession Act is not a magic pill that can be applied to resolve all issues pertaining to the distribution of a deceased person’s estate. In as much as section 40 LSA talks of “Equal Shares,” the distribution must also be equitable. 18. In distributing the Estate, the Court strives to achieve fairness and justice for the beneficiaries. The Protestor Judy Nyawira asserts that she and her brother have no interest in the estate apart from LR K Githunguri/ T.209 and LR NO. Githunguri/ Githunguri/165. Her assertion that Ruth Njeri Kimari (now deceased) had no interest in those parcels of land is not controverted. With this in mind I will direct that the estate be distributed as hereunder- S/ PROPERTIES 1STHOUSE 2ND HOUSE NO. a) LR.NO. Elizabeth Wacu Mwangi 2.174 Florence Wangui Kimari Githunguri/Kiaria/ acre 4.34 acres 273 Dina Wambui Kamau 2.174 acre Charity Waceke Kimari Jemima Waceke Kimari 2.174 2.17 acres acre Winnie Wanjiru Kimari Edward Kimari Muturi 2.174 acre2.17 acre Hellen Nyambura and Victor Estate of Ruth Njeri Mburu Kamau as trustees for Kimari 2.17 acres, them and 2 Others 1.087 acre Edith Wamaitha and Kenneth Kimari Kamau as trustees for them and 5 Others 1.087 acre b) LR.NO. Elizabeth Wacu Mwangi 1.24 Charity Wacheke 1.24 Gatamaiyu/Gachoiri/ acre acres Florence Wangui 316 Dina Wambui Kamau 1.24 acre Kimari 1.24 acres Jemima Waceke Kimari 1.24 acre Shem Kihoro Kimari 1.24 Edward Kimari Muturi 1.24 acre acres Hellen Nyambura and Victor Winnie Wanjiru 1.24 Mburu Kamau as trustees for acres them and 2 Others 0.62 acre Estate of Ruth Njeri Edith Wamaitha and Kenneth Kimari 1.24 acres Kimari Kamau as trustees for them and 5 Others 0.62 acre 1ST HOUSE 2ND HOUSE c) Plot No. 28 Githunguri Hellen Nyambura and Winnie Wanjiru Kimari ½ Market Victor Mburu Kamau as share trustees for them and 2 Others ¼ share Edith Wamaitha and Kenneth Kimari Kamau as trustees for them and 5 Others ¼ share d) Plot No. 2 Gathanji Edward Kimari Gitere ½ Shem Kihoro Kimari ½ share share e) Plot No. 76 Githunguri Jemima Waceke Kimari ½ Estate of Ruth Njeri Kimari share ½ share f) LR.Githunguri/Kiaria/ Nil Florence Wangui Kimari ½ T.236 share Estate of Ruth Njeri Half Share g) LR.Githunguri/Kiaria/ Nil Winnie Wanjiru Kimari ½ T.132 share Charity Waceke Kimari ½ share h) LR.Githunguri/Kiaria/T.3 Edward Kimari Gitere Nil Whole i) LR.Githunguri/Kiairia/ Hellen Nyambura and Nil T.133 Victor Mburu Kamau as trustees for them and 2 Others- Whole LR.Githunguri/Githung Elizabeth Wacu Mwangi Robert Mwangi ½ acre Judy j) uri/165 0.16 acre Nyawira ½ acre Dina Wambui Kamau 0.16 acre Jemima Waceke Kimari 0.5 acre Edward Kimari Muturi 0.16 acre k) LR. K. Jemima Waceke Kimari ½ Robert Mwangi and Judy Githunguri/T.209 share Nyawira ½ jointly l) ICDC Shares Edith Wamaitha ½ share Shem Kihoro Kimari ½ share m) Rioki Estates Edith Wamaitha ½ share Charity Waceke ½ share n) Kiaria Co-operative Edith Wamaitha ½ share Shem Kihoro Kimari ½ share Shares o) Ndumberi Co-operative Edith Wamaitha ½ share Shem Kihoro Kimari ½ share shares e p) Breweries shares Edith Wamaitha ½ share Shem Kihoro Kimari ½ 19. The administrator will finalise transmission of the Estate within 90 days. 20. Mention on 5th May 2025 to confirm compliance and take further directions 21. Party at liberty to appeal. The party exercising right of appeal to do so within 30 days 22. Each party to bear their own costs It is so ordered. SIGNED, DATED and DELIVERED VIRTUALLY at NAIROBI this 13TH day of February, 2026. P. M NYAUNDI HIGH COURT JUDGE In the presence of: Fardosa Court Assistant Komen holding brief for Marubu for Protestors Njoroge Baiya for Administrator