High Court Miscellaneous Application No. 44 v Nyakio Nyaini & 2 others

1. The subject matter herein is the summons for confirmation of grant dated 5th October 2020. The applicant is seeking that, the Honourable Court be pleased to confirm the grant of letter of Administration made herein to the Administrators by way of the ruling delivered on 20th May 2016. That the costs thereof be in the cause. 2. The application is supported by the grounds thereto and an affidavit sworn by the applicant, Hannah Muthoni Kamau. She avers that, the grant was made to her, together with Nyakio Nyaini and Jane Wanjiku Muthee, but it could not be confirmed due to interference by the 3rd Administrator and the beneficiary who had taken a portion of the estate and even sold some of them. 3. That some of the titles issued fraudulently were cancelled and that, the shares of the beneficiaries 2|Page

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have now been identified in accordance with the guidelines laid out by the court and therefore it is only fair and just that the grant be confirmed. 4. The applicant sets out at paragraph 4 of the supporting affidavit the beneficiaries of the estate in both the 1st and 2nd house(s). At paragraph 5 of the affidavit she avers that, the deceased owned parcel of land known as Naivasha/Mwichirigiri Block 2/68 which has been subdivided into parcels known as Naivasha/Mwichirigiri Block 2284, 2285 and 2286 and at paragraph 6 the applicant indicates the proposed mode of distribution of the estate. 5. On 11th February 2021, Nyaki Nyaini filed an affidavit of protest against the summons for confirmation of the grant. In a nutshell she averred that, land parcel No. Kiambogo settlement scheme plot No. 1910 had been omitted from the assets of the estate. She has 3|Page

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annexed to the affidavit a letter of allocation of the subject land. 6. On 12th July 2021, the applicant filed a further affidavit in support of the summons for confirmation of the grant and in response to the affidavit of protest. She averred that, the property which is a subject of protest was allocated to the deceased Wanjiru Njoroge Kamau, and wife to the deceased herein. That as such the same does not form part of the estate herein and cannot be distributed herein. That the protestor should seek for that property through succession cause relating to Wanjiru Njoroge Kamau and no in this matter. 7. On 12th November 2021, Jane Wanjiku Muthee the 3rd Administrator filed an affidavit of protest. She averred that, the summons for confirmation of grant was filed without the concurrence of co-administrators. Further 4|Page

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to distribute Naivasha/Mwichirigiri Block 2/2085 between the two houses while Nyandarua Muruki 533 is not shared equally would be unfair to the 1st house. She conceded to parcel No. Naivasha/Mwichirigiri Block 22884 being given to Nyakia but protested to equal sharing of 5.4677 acres of Mwichiringiri Block 2/2286. She argues that before sharing that land, the portions in 533 be considered. 8. On 22nd May 2023, the applicant filed a signed consent to the confirmation of the grant which indicates the agreed mode of distribution and the signatories thereto. 9. However, the 3rd Administrator filed a further consent affidavit to the contents of paragraphs 2, 3, and 4 of summons for the confirmation of the grant, but argued that, 0407 Ha of LR No. Naivasha Mwichiringiri Block 2/2286 was sold to raise money used to process 5|Page

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title deeds and would be unfair for that parcel of land to be considered in the sharing. She deposes at paragraphs 5, 6, 8, 9, 10 and 11 of the affidavit to the proposed mode of distribution. 10. In response to the afore affidavit, the applicant filed a further affidavit dated 1st December 2024. She averred that, the allegation that, parcel of land Nyandarua/Muruaki/533 was not shared as between the two families or excluded the older family is false. That, both families participated in all decisions made and that the deceased had 12 acres of land, sold 5.25acres and 6.75 acres was left. 11. That each family took 3 acres and a quarter was taken up for access road. Further the balance is half acre to be shared between the two families. Furthermore the balances of the purchase price paid by the purchasers has been shared equally. 6|Page

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12. Notably as the matter was on going, the parties negotiated settlement thereof and resolved some issues. The court was informed as per the proceeding of 3rd February 2025, that the parties had narrowed issues and the only unresolved issue is whether the one acre (1) allegedly sold and proceeds used to process title deed should be included in the distribution. Whereas the applicant held that it should, the 3rd Administrator held the contrary view. 13. Upon considering the arguments on that issue, the court directed the 3rd Administrator to provide documentary evidence to support her allegation of sale and use of the proceeds as stated. However, at the time of writing this decision that evidence has not been provided. The 3rd Administrator stated that, she could not get receipts as most of that money was paid to the learned Counsel Mr. Masese appearing for the 7|Page

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2nd Administrator to process the title deeds, and sought that Mr. Masese avail the receipts. None were availed. 14. Be that as it were the 1st and 3rd Administrator’s counsels herein. filed The skeleton applicant submissions submitted that considered first and foremost the 3rd Administrator sold the one acre in contention through a fraudulent grant, further she has failed to produce receipts to support the expenditure of processing the title deeds. 15. Further, as regards the property owned by Peter Njoroge Kamau the same is a subject of contention within the 1st house and does not concern the 2nd house. Furthermore, property Nyanduaru/Muruaki/533 was shared equally and is not before the court. 16. That the 3rd Administrator concedes to the mode of distribution proposed by the 1st Administrator and the 8|Page

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issues she raises concerns her and the brothers and a subject of a different forum. That indeed no titles were ever issued. Further, all other members of the 1 st house have not protested to the applicants proposed mode of distribution. 17. However, the 3rd Administrator submitted that when Njoroge Kamau, the deceased died, parcel No. Naivasha/Mwichiringiri 2/68 had not been registered. That in order to subdivide the land into three portions, the 3rd Administrator in conjunction with her siblings sold one acre of the land LR Naivasha/Mwichiringiri 2/2286 to raise funds which were required for the subdivision. That it be left out to the benefit of its owner, the purchaser. 18. That, the 3rd Administrator could not provide receipts due to poor record keeping but the court should take judicial notice of the fact that in sub division, survey 9|Page

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work, registration of land is expensive and stamp duty is payable and so the one (1) acre be excluded. 19. Having considered the afore arguments and submissions tendered by the respective parties, I find that, it is not in dispute that, the deceased herein left two sons namely peter Kamau Njoroge and Nyaini Njoroge. Consequently, any property left by the deceased should be distributed among them equally. There doesn’t seem to be a major dispute to the same and the parties are in agreement. 20. However, the 3rd Administrator avers that, before the distribution is done, one (1) acre be removed as the same was sold to meet subdivision of LR No. 2/68. The court directed and/or ordered the 3 rd Administrator to provide evidence of the same and none was availed. This court is being invited to take judicial notice of payment associated with sub-division transaction. 10 | P a g e

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21. However, the law is settled he who alleges proves. It is not just receipts that could prove the alleged transaction. The 3rd Administrator allege that, the land was sold. The question is where is the proof of the sale agreement. How much was it sold for and how was the payment made. How was the entire funds received utilized? Did the 3rd Administrator have legal authority to sell the land? How much was stamp duty and/or any other related transactions and payment. How can the court take judicial notice of the transaction that is not supported by any evidence. 22. It is the finding of this court that to omit a total of one (1) acre from the estate’s property without supportive evidence will be unjust and unfair. If indeed, the 3rd Administrator spent any money in the said subdivision, then she should seek for reimbursement 11 | P a g e

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from the parties who benefited from the sub-division thereof. 23. Having resolved that issue as such. I direct that, the estate of the deceased be distributed equally among his two sons as proposed in the document dated 11 th May 2023 entitled “consent to the confirmation of the grant” which supports the summons for confirmation. 24. Those then are the orders of the court. 25. Any aggrieved party may lodge an appeal within 14 days of the date of this order. Dated, delivered and signed this 17th day of November 2025 GRACE L. NZIOKA JUDGE In the presence of: Mr. P. K. Njuguna for the 1st administrator Ms. Kirubi H/B for Mr. Mboga for the 3rd Administrator 12 | P a g e

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Ms. Hannah: court assistant 13 | P a g e

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