In re Estate of Beth Nyambura Wagako (Deceased) (Succession Cause 33 of 2010) [2025] KEHC 16597 (KLR) (Family) (7 October 2025) (Ruling) Neutral citation: [2025] KEHC 16597 (KLR) REPUBLIC OF KENYA IN THE HIGH COURT AT NAIROBI (MILIMANI LAW COURTS) FAMILY SUCCESSION CAUSE 33 OF 2010 EKO OGOLA, J OCTOBER 7, 2025 IN THE MATTER OF THE ESTATE OF BETH NYAMBURA WAGAKO (DECEASED RULING 1. Vide an amended Summons for Confirmation of Grant dated 25th March 2019 and amended on 23rd October 2023 the applicant seeks the following orders: 1. That there be partial confirmation in respect of KSH 12,609,502/= the rent yielded by the company’s property known as LR No. 209/1496 Nyakio House River Road and LR No. 209/2211/2 -2nd Avenue Parklands Nairobi and also KSH 28,000,000 the proceeds of sale from the said LR No. 209/2211/2. 2. 3. A. That thereafter the grant of letters of administration issued on 3rd November 2015 be confirmed in respect of the remaining assets of the deceased. 2. B. That as an alternative to 1 and 2 above, there be a confirmation of grant in terms of paragraph 26 of the supplementary supporting affidavit of the applicant. That the costs of this application be provided for. 2. The summons is supported by the sworn affidavit of the applicant dated 25th March 2019 and a supplementary supporting affidavit dated 21st October 2023. 3. The Applicant in her affidavit avers that the grant of letters of administration were issued to 3rd November 2015 to Alice Wanjiru Wagako. 4. That the estate of the deceased herein comprises of both her own self-acquired properties and properties that were bequeathed to her by her late husband, Wagiko Ndibaru who died testate in the year 2000. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/16597/eng@2025-10-07 1
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5. That on 4th February 2009 the estate of the late Wagiko Ndibaru was distributed amongst his three widows whereas disputes arose which have since been concluded by the various courts. That a rectified grant has not yet been issued regarding the estate of the deceased herein after the order made on 4th February 2009. 5. That there was a sale of some of the deceased property known as L.R NO. 209/2211/2 and that the proceeds of the sale amounting to KSH 12,690,502 is now available for the partial distribution to the beneficiaries. 7. That further to that there was a sale of then immovable property known as Nyandarua/Passenga/183 and that the proceeds of sale were received by Irene Wamukore, a beneficiary of the estate. 8. An affidavit of protest dated 6th October 2021 and another dated 30th June 2020 were filed in opposition to the summons. 9. This court also heard oral statements from the beneficiaries of the estate both in support and in opposition to the summons 10. Pw1, Alice Wanjiru Wagaka, the applicant herein relied on her sworn affidavit dated 21st October 2023. 11. PW2, Irene Wamukore, in her oral evidence stated that she was given Nyandarua/Passenga/183 to sell in order to pay school fees. That the same was sold for KSH 1,800,000. 12. DW1, Nancy Wairimu Mungai stated in her viva voce evidence relied on her affidavit of protest dated 6th October 2021 and stated that she disagrees with the mode of distribution proposed by the Applicant. 13. DW2, Mwangi Wagako in his viva voce evidence adopted his affidavit of protest dated 30th June 2020 and stated that there was rental income for Nyakio house that amounted to KSH 2,000,000 which the applicant has not disclosed to court. 14. The objectors urged the court to dismiss the summons. 15. All parties herein filed their respective submissions 16. That the administrator failed to conclude the administration of the estate and the court found it prudent to close the file suo moto. 17. The applicant further stated that the administrator fraudulently sold property No. L.R NYA/ Passenga/183 without the consent of the other beneficiaries. That further to that the administrator has refused to disclose the full and proper accounts of the proceeds of the sale to the other beneficiaries of the estate. Determination 18. I have gone through the Summons, the protest, sworn affidavit and the documents produced in court both in support of the summons and in opposition to the same. The issue for determination is whether the summons for partial distribution of the deceased estate should be allowed. 19. Section 71(2) of the Law of Succession Act, requires administrators to satisfy the court as to the identities of and shares of all the persons beneficially entitled to the estate of the deceased. The effect of this provision is that the administrators have a duty, before they seek distribution of the estate, and indeed, solely for that purpose, to ascertain the assets of the estate and the persons who are beneficially entitled to a share in the estate. It is the persons who are beneficially entitled to a share in the estate, who ultimately get to be allocated share in the estate. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/16597/eng@2025-10-07 2
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The proviso, by way of repetition, for emphasis sake, says: “ 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 such grant shall specify all such person and their respective shares.” The said provision is reinforced by Rule 40(4), which, again I shall hereby repeat for emphasis, which says, by way of imposing a duty on the administrator, that: “ Where the deceased has died wholly or partially intestate the applicant shall satisfy the court that the identification and shares of all persons entitled to the estate have been ascertained and determined.” 20. By ascertaining persons who are beneficially entitled means identifying the persons who are entitled to a share in the estate of the deceased. In this instance there is a contention as to the shares due to Irene Wamukore who had initially been given a parcel of land to sell. None of the beneficiaries is aware as to how much the proceeds of the sale amounted to and as such the amount due to Irene Wamukore cannot be ascertained at this point. 21. Further, it is not clear how the Shs. 12,609,502/= sought to be distributed was arrived at. Was it rent from Nyakio House River Road as at 2019, or as at 2025. There are several loose ends to the partial Summons for Confirmation. These loose ends should be tied together in a full Summons for Confirmation to enable the court to have a complete picture of the full assets of the estate. 22. That costs be in the cause. It is so ordered . DATED AND DELIVERED AT NAIROBI THIS 7 TH DAY OF OCTOBER, 2025. E.K OGOLA JUDGE In the presence of: M/s Nduta Kimeu…………………………………… for the Petitioner/Applicant Mr. Wagako………………………………………………………………...........In person Mr Kinyanjui holding brief Kinuthia ………………………………. for Protestor Gisiele………………………………………………….………………….…Court Assistant https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/16597/eng@2025-10-07 3
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