High Court 1510 of 2026

3. Moses Kikuvi- Son. 4. Their preferred mode of distribution seems is informed by1. What they perceive to comprise the Estate of the deceased available for distribution 2. Their opinion on the position of the widow regarding the posterity of the deceased’s Estate especially as she did not have a child with the deceased and she has the means to provide for herself. 5. Accordingly, they submit that the house erected on Nairobi/Block 140/ 529/ 030 (Nyayo Estate House) does not comprise part of the estate of the deceased as the deceased nominated them as next of Kin and therefore the property properly passed to them with the concurrence of the NSSF Trustees. 6. Secondly, it is submitted that the terminal benefits of the deceased ought to be distributed in accordance with his nomination form and not equally as proposed by the Protestor. They proffer the same position about the Life insurance Policy, submitting that the same should be in accordance with the Policy itself. 7. They are opposed to the Protestors proposal to have the following assets transferred to her absolutely, KJD/ Kaputei North/ 39863/4 and 5; and submit she is only entitled to a life interest to the same. 8. It is submitted that the ancestral land (Yathui Kyamatula, Machakos Wamunyu and Yathui Market Plots) does not comprise the estate as it is still the subject of succession proceedings in Succession Cause No. 468 of 1999 Estate of James Kikuvi Chambo (Deceased). This is the father of the deceased herein. 9. Based on their interpretation of Section 35 of the Law of Succession Act, the Applicants argue that the applicant is only entitled to a life interest. Reference is made to the Court’s interpretation of this Section in the case of Tau Kakungi v Margrethe Thorning Katungi & Another [2014] eKLR. The applicant also refers to the decision in Re Estate of Caleb Opuka Oluchina (Deceased) [2024] KEHC 833 (KLR) on the exercise of the Court’s discretion to safeguard the interests of children of a deceased. 10. It is submitted further that the under Section 36 A of the Retirement Benefits Act, benefits payable under the scheme do not form part of a deceased’s estate and reference made to the decision in Re Estate of Carolyne Achieng’ Wagah ( Deceased) [2014]Eklr; Jimmy R. Kavilu & 16 Others vs Stanbic Bank Kenya Limited and 7 Others (2019) eKLR and Joseph Kimani Kamau vs Sundeep Raichura & 5 Others ( sued as trustees of Alexander Forbes Retirement Fund (Provident Section) (2019) Eklr 11. It is submitted by the applicant’s that their proposal is fair as their deceased mother and her children have a superior claim to the matrimonial home and assets (including the ancestral home)- which in any event does not comprise the estate. Summary of Protestor’s Submissions 12. The applicant urges that her interest will be safeguarded if she is granted an absolute interest in her share of the estate. She relies on the Court of Appeal decision in M’Murithi v Murithi (Civil Appeal 3 of 2015) [2015] KECA 347 (KLR) (14 October 2015) (Judgment) and Mary Rono v Jane Rono Another [2005] eKLR. 13. She urges further that the Court should include the terminal benefits of the deceased, the Life Policy and the Nyayo Estate House as assets in the estate of the deceased available for distribution. She states further that she has a stake in the ancestral land as her matrimonial home was established there, and she contributed towards its renovation. She therefore urges that the court adopt her proposal on distribution. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/1510/eng@2026-02-13 2

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Analysis and Determination 14. Having considered the pleadings herein, the evidence adduced and the submissions filed alongside the relevant law, I consider the following to be the issues for determination1. What assets comprise the Estate of the deceased? 2. How should the Estate of the deceased should be distributed? 3. Arising from (a) and (b) above what are the consequential orders? 15. Section 3 of the Law of Succession Act provides that “estate” means the free property of a deceased person. Therefore, the logical starting point will be to exclude all those assets that do not fall within this definition. 16. The 1st would be the property that is subject in Succession Cause No. 468 of 1999 Re Estate of James Kikuvi Chambo (Deceased), namely ancestral land measuring 27 acres (Yathui Kyamatula) and Yathui Market Plots. It is not in dispute that Succession Cause is not yet concluded, and the deceased’s share therein has not been defined. Issues of the respective shares of the beneficiaries to the deceased’s entitlement to his father’s estate can only be determined in that cause and not the current one. Once the deceased’s share is determined, they are at liberty to approach this Court for the distribution of his share. This was well enunciated in the case of re Estate of Francis Andachila Luta (Deceased) (Succession Cause 875 of 2012) [2022] KEHC 16900 (KLR) (23 December 2022) (Judgment), where the Court stated (29) 17. One of the sons of the deceased is dead, and that is to say the husband of the protestor. I have mentioned section 41 above, in connection with how the share of a dead child of a deceased parent is to be handled. When a child of the deceased dies, and is survived by offspring, their entitlement is not extinguished or diminished. It should go to their offspring or to his/her estate. Section 41 says that the offspring step into the shoes of their dead parent, and take the share that is due to such dead parent. That share should be equal to the shares taken by the surviving children of the deceased. More importantly, section 41 talks of the offspring of the dead child of the deceased and not the spouse of the dead child. In intestate succession, the estate passes to the kindred of the deceased, that is to say the blood relatives of the deceased, except for the surviving spouse of the deceased. In-laws, be they parents-in-laws or childrenin-laws, are not blood relatives of their children-in-law or father-in-law. They have no right or entitlement to the intestate estate of their dead in –law. The Law of Succession Act does not recognize them or their rights. Indeed, the Law of Succession Act does not even mention them. They can only claim on behalf of others. A daughter-in-law, for example, can only claim the share due to her late husband, otherwise she has no direct right. For her to access the share due to her late husband, she has to obtain representation to his estate first, by way of a grant of letters of administration intestate. …. The 2nd Asset is the property erected on title Number Nairobi/Block 140/529/030. The property is currently in the name of the Applicants; the transfer was transferred to them after the death of the deceased purportedly on the strength of a nomination. The Protestor challenges the validity of this transfer. This Court is not vested with the mandate to make a determination on the validity of that transaction. The protestor will present her challenge in the right forum, if her challenge is successful and the property reverts to the deceased, it can be presented to this Court for a determination on its distribution. The limits of the mandate of a probate Court were well articulated in the case of re Estate of Alice Mumbua Mutua (Deceased) [2017] KEHC 8289 (KLR) the Court stated, https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/1510/eng@2026-02-13 3

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(27) Disputes of course do arise in the process. The provisions of the Law of Succession Act and the Probate and Administration Rules are tailored for resolution of disputes between the personal representatives of the deceased and the survivors, beneficiaries and dependants. However, claims by and against third parties, meaning persons who are neither survivors of the deceased nor beneficiaries, are for resolution outside of the framework set out in the Law of Succession Act and the Probate and Administration Rules. Such have to be resolved through the structures created by the Civil Procedure Act and Rules, which have elaborate rules on suits by and against executors and administrators… (29) Clearly, disputes as between the estate and third parties need not be determined within the succession cause…. The presumption is that such disputes arise before the distribution of the estate, or the confirmation of the grant. Where they arise after confirmation, then they ought strictly to be determined outside of the probate suit, for the probate court would in most cases be functus officio so far as the property in question is concerned. The primary mandate of the probate court is distribution of the estate and once an order is made distributing the estate, the court’s work would be complete. The proposition therefore is that not every dispute over property of a dead person ought to be pushed to the probate court. The interventions by that court are limited to what I have stated above. 18. The 3rd are the nominated benefits. The law is clear that nominated benefits such as terminal benefits, pension, and Life insurance policies do not comprise Estate of the deceased distributable by a probate Court. The terminal benefits of the deceased, monies payable under the Life Insurance Policy shall therefore not fall due for distribution under the Estate. Where there are no nominees, the same is distributed in accordance with the rules of the scheme or policy. We need not go beyond the decision in Re Estate of Carolyne Achieng’ Wagah (Deceased) [2014] EKLR. 19. I find therefore that the Estate of the deceased available for distribution comprises1. House Erected on title Number Nairobi/Block/ 82/6085 2. Title Number Wamunyu/Kyamutula/ 594 3. Konza South/ Konza South Block 5 (Konza) 24 4. Athi River/ Athi River Block I/2749 5. Title No Kajiado / Kipeto/8164 6. Title No Kajiado / Kipeto/8165 7. Title Number KJD/Kaputiei/ 39866 8. Title Number KJD/Kaputiei/39865 9. Title Number KJD/Kaputiei/ 39864 10. Title Number KJD/Kaputiei/ 39863 11. Plot Numbers 101, 572 and 573 erected on Land reference Number 9042/ 571 12. Account Number SA3- 235xxxxx59 at NIC Bank 13. Account Number 100xxxxx63 at NIC Bank 14. Account Number 094xxxxx05 at ABSA Bank https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/1510/eng@2026-02-13 4

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20. 21. 15. Account at HFC Bank 16. Account at National Bank of Kenya Limited 17. Shares at Kenya Airways 18. Shares at Standard Chartered Bank Kenya Limited 19. Shares at ABSA Kenya Limited 20. Shares at Safaricom 21. M-PESA Phone Number 0722xxxx69 22. Shares at Tierra Limited 23. Shares in Kyakwakya Self Help Group 24. Motor vehicles (KBW 159 C; KBV 858D and KCQ 903J The next issue is how the properties should be distributed. As stated earlier, the parties are agreed on who the beneficiaries are. They are also agreed on how the following properties should be distributed: 1. House Erected on title Number Nairobi/Block/ 82/6085 2. Title Number Wamunyu/Kyamutula/ 594 3. Konza South/ Konza South Block 5 (Konza) 24 4. Title No Kajiado / Kipeto/8164 5. Title No Kajiado / Kipeto/8165 6. Title Number KJD/Kaputiei/ 39866 7. Plot Numbers 101, 572,573 erected on Land reference Number 9042/ 571 8. Account Number SA3- 235xxxxx59 at NIC Bank 9. Account Number 100xxxxx63 at NIC Bank 10. Account Number 094xxxxx05 at ABSA Bank 11. Account at HFC Bank 12. Account at National Bank of Kenya Limited 13. Shares at Kenya Airways 14. Shares at Standard Chartered Bank Kenya Limited 15. Shares at ABSA Kenya Limited 16. Shares at Safaricom 17. M-PESA Phone Number 0722xxxx69 The Applicants are opposed to the Applicant holding any of the assets absolutely and are prepared to accept that she be allocated the following properties on condition that she has a life interest and not an absolute interest. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/1510/eng@2026-02-13 5

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1. Title Number KJD/Kaputiei/39865 2. Title Number KJD/Kaputiei/ 39864 3. Title Number KJD/Kaputiei/ 39863 22. It is proposed that the Applicants be allocated Athi River/ Athi River Block I/2749 so that they carry on developments. 23. The Applicants also wish to have the shares in Tierra Limited and Shares in Kyakwakya Self Help Group, for sentimental value as the same were obtained by their father and they wish to maintain their father’s legacy. 24. The Applicants also propose that they each get a car with the protestor getting Motor Vehicle KBV 858D which is in her possession. 25. The Protestor urges that she be allowed to hold the properties absolutely as a spouse to the deceased, she submits that she is a dependant of the deceased. Section 29 of the Law of Succession Act provides 29. Meaning of dependant For the purposes of this Part, “dependant” means— (a) the wife or wives, or former wife or wives, and the children of the deceased whether or not maintained by the deceased immediately prior to his death; 26. Where a deceased dies intestate the Court will exercise discretion to ensure that all the beneficiaries are treated justly and equitably. The Applicants hinge their opposition to her accessing estate property absolutely on the fact that she did not have children with the deceased and that they are the biological children of the deceased. 27. Courts have repeatedly when applying the Law of Succession Act done so with the human rights lens referring to the constitutional imperative to ensure that all persons are treated equally and discrimination avoided on the prohibited grounds. On that basis we have the land mark decision in Mary Rono v Jane Rono & another [2005] eKLR where the Court stated that the rights of inheritance of a child of a deceased were not limited by the gender or marital status, thereby settling the issue of the rights of married daughters to the estate of their deceased parent. 28. Further in Mungai v Attorney General [2025] KEHC 8544 (KLR) the Court found that the requirement under Section 29 (c) that a husband prove dependency on his deceased wife before he benefits from her estate was discriminatory and proceeded to strike it out. 29. In the case of Ripples International v Attorney General & another; FIDA (Interested Party) (Constitutional Petition E017 of 2021) [2022] KEHC 13210 (KLR) (29 September 2022) (Judgment). The Court held that the text of sections 35(1)(b), 36(1)(b) and 39(1)(a) and (b) of the Law of Succession Act (the Act) were restrictive of the women and female child’s right to inherit in equal measure and circumstances as the men and male child. Sections 35(1)(b) and 36(1)(b) restricted a widow’s life interest in the property of her deceased spouse when she remarried, unlike the widower who remarried. Section 39(1)(a) and (b) gave priority to the father ahead of mother over the property of a child who died intestate, unmarried and childless. 30. Article 27(4) of the Constitution prohibited discrimination of the grounds of sex and marital status among other grounds. The differential treatment of the female as against their male counterparts was indefensible, and the Act which predated the Constitution, had no explanation for the latent https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/1510/eng@2026-02-13 6

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discrimination and restriction. Article 45(3) of the Constitution recognised the equality of men and women in marriage set up. 31. The Court went further to state that sections 35, 36 and 39 of the Law of Succession Act had to be interpreted in a manner that gave effect to the equality of women and men regarding the protections and benefits accruing under sections 35, 36, and 39. 32. It was evident at the trial that the relationship between the Children of the deceased and his surviving spouse is strained. The Court cannot turn a blind eye to this. There are clearly two distinct houses or homes as relates to the estate of the deceased. In the circumstances I find that the circumstances of this case and the requirement to do justice necessitate that the spouse of the deceased be treated as a dependant and have her share transmitted to her absolutely. 33. I find therefore that the Estate of the deceased will be distributed as follows1. House Erected on title Number Nairobi/Block/ 82/6085- Moses Kikuvi and Linda Kikuvi in Equal shares 2. Title Number Wamunyu/Kyamutula/ 594- Moses Kikuvi absolutely 3. Konza South/ Konza South Block 5 ( Konza) 24- Moses Kikuvi and Linda Kikuvi in Equal shares 4. Athi River/ Athi River Block I/2749- Judy Kariki Kikuvi absolutely 5. Title No Kajiado / Kipeto/8164- Moses Kikuvi absolutely 6. Title No Kajiado / Kipeto/8165 Linda Kikuvi absolutely 7. Title Number KJD/Kaputiei/ 39866 Linda Kikuvi 8. Title Number KJD/Kaputiei/39865 Judy Kariki Kikuvi absolutely 9. Title Number KJD/Kaputiei/ 39864 Judy Kariki Kikuvi absolutely 10. Title Number KJD/Kaputiei/ 39863 Judy Kariki Kikuvi absolutely 11. Plot Numbers 101, 572 and 573 erected on Land reference Number 9042/ 571Moses Kikuvi and Linda Kikuvi in Equal shares 12. Account Number SA3- 235xxxxx59 at NIC Bank Judy Kariki Kikuvi, Moses Kikuvi and Linda Kikuvi in Equal shares 13. Account Number 100xxxxx63 at NIC Bank Judy Kariki Kikuvi, Moses Kikuvi and Linda Kikuvi in Equal shares 14. Account Number 094xxxxx05 at ABSA Bank Judy Kariki Kikuvi, Moses Kikuvi and Linda Kikuvi in Equal shares 15. Account at HFC Bank Judy Kariki Kikuvi, Moses Kikuvi and Linda Kikuvi in Equal shares 16. Account at National Bank of Kenya Limited Judy Kariki Kikuvi, Moses Kikuvi and Linda Kikuvi in Equal shares 17. Shares at Kenya Airways Judy Kariki Kikuvi, Moses Kikuvi and Linda Kikuvi in Equal shares 18. Shares at Standard Chartered Bank Kenya Limited Judy Kariki Kikuvi, Moses Kikuvi and Linda Kikuvi in Equal shares https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/1510/eng@2026-02-13 7

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19. Shares at ABSA Kenya Limited Judy Kariki Kikuvi, Moses Kikuvi and Linda Kikuvi in Equal shares 20. Shares at Safaricom Judy Katiki Kikuvi 21. Shares at Queensway Sacco Moses Kikuvi and Linda Kikuvi in Equal shares 22. Shares at Old Mutual Moses Kikuvi and Linda Kikuvi in Equal shares 23. M-PESA Phone Number 0722xxxx69 Judy Katiki Kikuvi 24. Shares at Tierra Limited Judy Kariki Kikuvi, Moses Kikuvi and Linda Kikuvi in Equal shares 25. Shares in Kyakwakya Self Help Group Judy Kariki Kikuvi, Moses Kikuvi and Linda Kikuvi in Equal shares 26. Motor vehicles a. KBW 159 C Linda Kikuvi b. KBV 858D Judy Katiku Kikuvi c. KCQ 903J Moses Kikuvi 27. The Administrators will finalise transmission within 6 months. 28. This being a family matter each party will bear their own costs. 29. Parties at liberty to appeal, the party exercising their right of appeal to do so within 30 days. It is so ordered DATED, SIGNED AND DELIVERED ONLINE VIA MICROSOFT TEAMS AT NAIROBI THIS 13TH DAY OF FEBRUARY, 2026. P.M. NYAUNDI JUDGE In the presence of: Fardosa Court Assistant Kimani for Administrator (Judy Kivuvi) Musinga for 1st and 2nd Administrator (Moses and Linda Kivuvi) https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/1510/eng@2026-02-13 8

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