Leonard Wachira Wamai & 2 others v Humphrey Wanjohi Wamae

Background 3. This Succession Cause relates to the estate of the late Jackson Wamae (hereinafter ‘the Deceased’) who died intestate on 2nd March 1998. A copy of the Death Certificate Serial No. 16XXXX53 is annexed to the citation dated 27th November 2023. 4. The Deceased was survived by the following persons:(1) Isabella Nyaguthii Wanjohi - Daughter (2) Ephraim Wanjohi Wamae - Son (3) Mercy Wangui Wamae - Daughter (4) Charity Wamuyu Wamae - Daughter (5) Humphrey Wanjohi Wamae - Son (6) Leonard Wachira Wamae - Son (7) Jane Nyakinyua Muriithi - Daughter (8) James Muriuki Wamae - Son (9) John Kiama Wamae - Son (10) Peter Nguthiru Wamae - Son 5. Following the demise of the Deceased three (3) of his children Humphrey Wanjohi Wamae, Isabella Nyaguthii Wanjohi and Charity Wamuyu Wamae filed citation proceedings against the remaining beneficiaries (the Appellants herein) to accept or refuse letters of Administration intestate under Rule 21 of the Probate and Administration Rules. That citation was compromised by way of a consent entered into on 2nd April 2024, which consent provided that Humphrey Wanjohi Wamae, Leonard Wachira Wamai and Jane Nyakinyua Wamai jointly file a petition for administration of the estate of the Deceased. The consent was duly adopted by the court vide the order dated 13th June 2024 (Page 28 of the Record of Appeal) 6. Thereafter the citators filed an application dated 20th August 2024 seeking a variation of the consent orders on grounds that the citees had declined or were reluctant to sign the relevant documentation required to facilitate the filing of the main petition for Grant of letters of Administration Intestate. 7. The Citees filed a reply to this application dated 19th September 2023 sworn by Jane Nyakinyua Muriithi in which they opposed any variation of the consent order. The citees argued that they had declined to sign the documents because the Applicants had failed to include in the petition certain of the Deceased’s assets being rental income and a motor vehicle. They claim that the Respondent ‘Humphrey’ had collected the rental income alone from the years 2019 to 2023. 8. The Citees further claimed that the 2nd Applicant Isabella Nyaguthii had the information pertaining to motor vehicle owned by the Deceased which information she was reluctant to avail. 9. That application was heard by the trial court but the same was dismissed vide the Ruling delivered on 26th November 2024. In her ruling the learned trial magistrate allowed the variation to the consent order issued on 2nd April 2024 and directed that the names of Leonard Wachira Wamae and Jane https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/1108/eng@2026-02-06 2

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Nyakinyua Muriithi (the Citee’s) be expunged as administrators to the estate. Being aggrieved by this ruling the Appellants filed this present appeal which is premised upon the following grounds:“ 1. The learned magistrate erred in fact and in law in holding that the appellants had the particulars of the assets that were omitted in the succession cause without proof. 2. The learned magistrate erred in fact and in law in ignoring the fact that the respondent was aware of the assets the appellants wanted included in the cause and the respondent and his sister Isabella Nyaguthii were the only ones who had the full particulars of the same and the court erred when it failed to order them to include the same in the petition so that the matter could move on. 3. The learned magistrate erred in fact and in law in ordering/allowing the applicant to file the petition without including all the deceased assets contrary to the Law of Succession Act. 4. The learned magistrate erred in fact and in law in ordering that the appellants names to be removed from the list of petitioners for insisting that all the deceased’s assets be included in the petition before they could sign the joint petition and holding that their insistence that the assets of the deceased be included in the petition was a refusal to sign. 5. The learned magistrate erred in fact and in law in failing to appreciate the law on an appointment of administrators and attendant responsibilities of administrators which include the duty to account. 6. The learned magistrate erred in fact and in law in failing to find fault in the respondents conduct of refusing to disclose information on the accounts for rental income and motor vehicle of the deceased to the court and the other beneficiaries and when they insisted on the issue, he sought orders to the effect that they be removed from being petitioners. 7. The learned magistrate erred in fact and in law in failing to hold that it is the respondent who had made the case to halt as he had led to a collapse of the process during the family meetings which led to the citation proceedings. 8. The learned magistrate erred in fact and in law in failing to hold that it is be improper for legal administrators to leave out some of the assets of the deceased’s estate. 9. The learned magistrate erred in fact and in law in failing uphold the law and the mandatory provisions of Section 51 of The Law of Succession Act. 10. The learned magistrate erred in fact and in law in failing to order that the applicants counsel to amend the petition by including the rental income of the deceased’s estate and the deceased’s motor vehicle details in the list of assets since the applicant and Isabella Nyaguthii Wanjohi are the custodians of the two assets. 11. The learned magistrate erred in fact and in law in failing to [find that the] applicants were ready to sign the petition that once the two assets are included. 12. The learned magistrate erred in fact and in law in failing to exercise her discretion judiciously. 13. The learned magistrate erred in fact and in law in allowing the application dated 20/8/2024. 14. The learned magistrate erred in fact and in law in making her ruling on 26/11/2024 and the same was erroneous. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/1108/eng@2026-02-06 3

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4. The learned magistrate erred in fact and in law and acted irregularly by informing the applicants to attend the ruling in the afternoon and proceeding to read the same in the morning in the presence of the applicants counsel and in the absence of the applicants and their counsel. Analysis and Determination 10. I have considered the appeal before this court, the record of the proceedings before the Lower Court as well as the written submissions filed by both parties. 11. This is a first appeal and in this regard I take cognizance of the holding in Imanyara & 2 others v Attorney General [2016] KECA 557 (KLR) where the Court of Appeal stated as follows:This being a first appeal it is trite law, that this Court is not bound necessarily to accept the findings of fact by the court below and that an appeal to this Court from a trial by the High Court is by way of retrial and the principles upon which this Court acts in such an appeal is are well settled. Briefly put, they are that this court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowances in this respect. See Selle and Another v Associated Motor Boat Company Limited and others [1968] EA 123 and Williamson Diamonds Ltd. V. Brown [1970] E.A.L As we discharge our mandate of evaluating the evidence placed before the High Court, we keep in mind what the predecessor of this Court said in Peters -vs- Sunday Post Ltd [1958] EA 424. In its own words:“Whilst an appellate court has jurisdiction to review the evidence to determine whether the conclusions of the trial judge should stand, this jurisdiction is exercised with caution; if there is no evidence to support a particular conclusion, or if it is shown that the trial judge has failed to appreciate the weight or bearing of circumstances admitted or proved, or had plainly gone wrong, the appellate court will not hesitate so to decide….” 12. The Citees/Respondents in their application for variation averred that although their Advocate forwarded to the Appellants advocates all documents required to facilitate filing of the petition the Appellants did not reciprocate by also forwarding their details and documents so that the petition could be filed. 13. The Appellants argued that the Respondents had failed to include as assets the rental income derived from rental property belonging to the estate as well as details of a motor vehicle allegedly owned by the Deceased. 14. It is trite law that he who alleges must prove. Section 107 (1) of the Evidence Act Cap 80 Laws of Kenya provides that “ Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.” 15. The two provisions were dealt with in the decision of Anne Wambui Ndiritu -vs- Joseph Kiprono Ropkoi & Another [2005] 1 EA 334, in which this Court held as follows: “ As a general proposition under Section 107 (1) of the Evidence Act, Cap 80, the legal burden of proof lies upon the party who invokes the aid of the law and substantially asserts the https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/1108/eng@2026-02-06 4

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affirmative of the issue. There is however the evidential burden that is case upon any party the burden of proving any particular fact which he desires the court to believe in its existence which is captured in Sections 109 and 112 of the Act.” 16. The Appellants had alleged that there was rental income collected from the estate. They did not tender any evidence whatsoever of this rental income, the amount or which properties it was derived from. They have not cited the properties in question and no searches were annexed to show that said properties (if any) belonged to the Deceased. 17. Secondly the Appellants claimed that there existed a motor vehicle which belonged to the Deceased. The registration number of this vehicle was not given. No search was annexed to show that there existed a vehicle registered in the name of the Deceased. In short the Appellants failed to prove any of the reasons they had given for their failure to avail the relevant documents. 18. From the history of this matter it is obvious that the persons selected to petition for grant would not be able to act in concert. Squabbles Have emerged even before the petition for grant was filed. It would serve no purpose and would be detrimental to the estate to retain all three as administrators. 19. In re Estate of William Nzioka Mutisya (deceased) [2018] eKLR the court observed that:- “It is however my view that the administrators may be removed from their duties where, due to wrangles and disagreements amongst themselves, it is impossible for them to proceed diligently with the administration of the estate…. In my view if the Court finds that the administrators are unable to properly administer the estate due to their disagreements, nothing stops the Court from removing them from the administration and appointing new administrators notwithstanding the issue of priority or preference.” [Own emphasis] 20. It is obvious that the actions of the Appellants were aimed at stalling and/or blocking the filing of the Petition for grant. This the court will not countenance. I agree with the decision of the trial magistrate to vary the order of 2nd April 2024 so as to expunge the names of the 1st and 2nd Appellants as Administrators. 21. In my view this decision will not prejudice the Appellants as they remain at liberty to file a cross-petition or an objection to the Petition once it has been filed. 22. Finally I find no merit in this appeal. The same is dismissed in its entirety. This being a family matter each party will meet their own costs. DATED IN NYERI THIS 6TH DAY OF FEBRUARY 2026 MAUREEN A. ODERO JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/1108/eng@2026-02-06 5

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