Eileen Wanjiru Kihunyu & 1 other v Jane Wachu Macharia & 1 other

1. Jane Wachu Macharia 2. Faith Nyaguthie 3. Eileen Wanjiru Kihunyu 4. EWK 3. The Administrators filed Summons for Confirmation dated 11th June 2021 by Judy Thongori Advocates seeking for Confirmation of Grant issued on 6th December 2017. 4. EWK a co- administrator and daughter of Eileen filed preferred mode of distribution hereunder: https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5915/eng@2026-04-30 2

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Asset Beneficiary Share 23 Shares in Mukima Holdings Limited which owns Ngong/Ngong/3XXXX and Ngong/Ngong/3XXXX Eileen Wanjiru Kihunyu Absolutely Paul Gichuhi Kihunyu EWK Tabitha Waithera Kihunyu Esther Wairimu Kihunyu Plot No. Eileen Wanjiru Kihunyu Sinyerere/Sitatunga Block Paul Gichuhi Kihunyu 7/Chepkoiyo/XXX EWK Absolutely Tabitha Waithera Kihunyu Esther Wairimu Kihunyu Plot No. 2XXX Umoja Eileen Wanjiru Kihunyu Innercore Paul Gichuhi Kihunyu Absolutely EWK Tabitha Waithera Kihunyu Esther Wairimu Kihunyu Plot at Embakasi Ranching Company Limited Eileen Wanjiru Kihunyu Absolutely Paul Gichuhi Kihunyu EWK Tabitha Waithera Kihunyu Esther Wairimu Kihunyu House No. 158 Greenspan Estate, Donholm, Nairobi Eileen Wanjiru Kihunyu Absolutely Paul Gichuhi Kihunyu EWK Tabitha Waithera Kihunyu Esther Wairimu Kihunyu Apartment in Mwewe Eileen Wanjiru Kihunyu Apartments, Kileleshwa Paul Gichuhi Kihunyu Nairobi EWK Absolutely Tabitha Waithera Kihunyu Esther Wairimu Kihunyu https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5915/eng@2026-04-30 3

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House in Kijani Kileleshwa Nairobi Villas, Shares in Sameer EA Limited Jane Wachu Macharia to hold on her behalf and in trust for her children Absolutely Eileen Wanjiru Kihunyu Shared Equally Paul Gichuhi Kihunyu EWK Tabitha Waithera Kihunyu Esther Wairimu Kihunyu Shares in professionalCleaners City Eileen Wanjiru Kihunyu Shared Equally Paul Gichuhi Kihunyu EWK Tabitha Waithera Kihunyu Esther Wairimu Kihunyu Shares in Safaricom Limited Eileen Wanjiru Kihunyu Shared Equally Paul Gichuhi Kihunyu EWK Tabitha Waithera Kihunyu Esther Wairimu Kihunyu Proceeds of funds held in Eileen Wanjiru Kihunyu Stanbic Bank Limited & Paul Gichuhi Kihunyu CBA Bank EWK To be shared equally after payment of outstanding expenses. Tabitha Waithera Kihunyu Esther Wairimu Kihunyu Motor vehicles Eileen Wanjiru Kihunyu KBH 8XXX Lexus Paul Gichuhi Kihunyu KAX 7XXX Nissan EWK KBZ 8XXX- Alphad Tabitha Waithera Kihunyu To be sold and proceeds shared equally Esther Wairimu Kihunyu 5. In support of her proposed mode of distribution, Elizabeth stated that the same is supported by 4 of the beneficiaries namely: 1. Eileen Wanjiru 2. Tabitha Waithera https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5915/eng@2026-04-30 4

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3. Paul Gichohi 4. Esther Wairimu 6. Elizabeth gave evidence in support of her proposal. In her evidence she testified that she had distributed the estate to the two houses. The house of her mother Eileen and that of the second wife Jane. She has proposed that the houses in Kitsuru, Estate in Karen, 2 plots in Thome be given to Jane as she has the title documents and the rest of the assets be given to the house of Eileen. The Tamarind Meadows house is still in dispute in Machakos HCC 10/2020. 7. On being cross-examined by Kibe for Jane she stated that at the time of death the deceased was staying with Jane in Lavington. She confirmed that she was aware that deceased had separated with her mother Eileen in 2006 or 2007. As a result of the separation the deceased and Eileen had entered into a Matrimonial property Settlement agreement dated and had agreed to share the property. Eileen was to have; 1. Plot number 1XXXX/XXX house at Avenue Park. 2. Block 9X/4X Nyari Estate (which Eileen sold in 2010 for her treatment in USA) 8. In the agreement Clause 9.1 stipulated that upon execution of the agreement, Eileen would not have any claim against the deceased even under the Law of Succession Act. 9. On further Cross examination she stated that although she has included some properties in the summons she did not have documents to show the current owner of the properties. These include: 1. Kileleshwa Apartment 2. Kijani Villas 3. Shares in Sumeer Africa 4. Shares in Safaricom 5. Motor Vehicle KBH 8XXX and KBZ 8XXX. 10. Jane Wachu Macharia the 1st Administrator filed her preferred mode of distribution in her Replying Affidavit sworn on 17th August 2023 11. She deponed that she was the second wife of the deceased whom he married after his separation from his first wife Eileen. The Deceased died in 2014 leaving the following beneficiaries. i. Junior James Gichuru Kihunyu Son 18 years. ii. AMK Son 15 years. iii. NEK Daughter 14 years. iv. JK Son 8 years. v. JK Son 7 years. vi. EWK Daughter 3 years 10 months. vii. MWK Daughter 2 years 10 months. viii. Paul Gichuhi (Adult). ix. Elizabeth Wambui (Adult). https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5915/eng@2026-04-30 5

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12. 13. x. Tabitha Waithera (Adult). xi. Esther Wairimu (Adult). That the deceased was also survived by the following other dependants:i. Jane Wachu Macharia, widow, aged 45 years, ii. Eileen Wanjiru Kihunyu, widow, aged over 80 years, Jane then made her proposed mode of distribution as hereunder: https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5915/eng@2026-04-30 6

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Name Junior James Kihunyu Gichuru (Adult). AMK (Minor). Description Of Properties Share Of Heirs 23 Shares in Mukima Holdings Ltd which owns Ngong/Ngong/3XXXX and Ngong/Ngong/3XXXX Jointly/in Trust Tamarind House No. 8 Jointly/in Trust Umoja Innercore A26/XX Jointly/in Trust Embakasi Ranching 4XX & 4XX Jointly/in Trust Sinyerere/Sitatunga Block 7/ Chepkoiyo/XXX Jointly/in Trust NEK (Minor). Eileen Wanjiru Kihunyu Elizabeth Wambui Paul Gichuhi Tabitha Waithera JK JK EWK. MWK. Eileen Wanjiru Kihunyu Elizabeth Wambui Paul Gichuhi Tabitha Waithera Jane Wachu Macharia Junior James Kihunyu Gichuru ”” ”” AMK NEK JK JK EWK MWK Jane Wachu Macharia 2. Motor Vehicle KBH 8XXX Absolutely JK 2. Motor Vehicle KAX 7XXX Jointly or in trust by Jane Wachu Macharia JK EWK. MWK https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5915/eng@2026-04-30 7

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14. In support of her proposed mode of distribution Jane testified that the deceased had her and Eileen as the spouses. Eileen had 4 children and she had 7 children. The deceased had eight properties. She testified that 3 of the properties in the list of a Elizabeth were her properties and registered in her names. She referred to the Matrimonial Properties settlement agreement between Eileen and the deceased where property was transferred to Eileen and her children. In her proposal she testified that she took into consideration the transfers made in the Matrimonial Property settlement. On shares in the Mukima Holdings, she testified that deceased held 23 shares and she held 77 shares. Mukima Holdings has two properties in Ngong which were valued at Ksh.166,000,000/-. 15. On being cross-examined by M/s. Ndirangu she confirmed the three of the seven children James Gichuki, Alex Mwangi and Nicole were not biological children of the deceased. She testified that; 16. 17. 1. House in Kijani was bought by herself. 2. Kileleshwa Apartments was bought by herself and deceased. 3. Received from deceased house in Greenspan 4. She had 25 Shares and the deceased had 75 shares in City Professional Cleaners. 5. Deceased had 23 shares and she had 77 shares from Mukima Holdings and has been receiving rent from 31st July 2014 to 30th November 2014. 6. Eileen had her shares 50:50 the funds in Deceased's Account amounting to Ksh 29 million less 4 million paid to Advocate. On being reexamined by Kibe she stated that: 1. Kijani property was in her name 2. Kileleshwa property was jointly owned by deceased and herself 3. Greenspan property was jointly owned by her and Deceased. These properties reverted to her upon the death of deceased. M/s Ndirangu for Eileen filed Written Submissions dated 18th August 2025 in support of the proposed mode of distribution by Elizabeth. Counsel submitted that the same is in line with the principles of equitable distribution. Counsel submitted that the distribution by Elizabeth took into consideration that Jane had benefited considerably from the deceased by way of inter vivos gifts and from the estate in particular to her children as hereunder: https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5915/eng@2026-04-30 8

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Name Junior James Kihunyu Gichuru (Adult). AMK (Minor). Description Of Properties Share Of Heirs 23 Shares in Mukima Holdings Ltd which owns Ngong/Ngong/3XXXX and Ngong/Ngong/3XXXX Jointly/in Trust Tamarind House No. 8 Jointly/in Trust Umoja Innercore A26/32 Jointly/in Trust Embakasi Ranching 478 & 479 Jointly/in Trust Sinyerere/Sitatunga Block 7/ Chepkoiyo/XXX Jointly/in Trust NEK (Minor). Eileen Wanjiru Kihunyu Elizabeth Wambui Paul Gichuhi Tabitha Waithera JK JK EWK. MWK. Eileen Wanjiru Kihunyu Elizabeth Wambui Paul Gichuhi Tabitha Waithera Jane Wachu Macharia Junior James Kihunyu Gichuru ”” ”” AMK NEK JK JK EWK MWK Jane Wachu Macharia 2. Motor Vehicle KBH 8XXX Absolutely JK 2. Motor Vehicle KAX 7XXX Jointly or in trust by Jane Wachu Macharia JK EWK. MWK https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5915/eng@2026-04-30 9

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18. 19. 20. On the proposed mode of distribution by Jane Counsel submits that if effected, it will be prejudicial and disadvantageous to the house of Eileen on the following grounds: a. The Respondents propose that the 23 shares in Mukima Holdings Limited in the name of the deceased be transferred to the 1st Respondent and the listed beneficiaries jointly or to be held in trust. Your Honour, the 1st Respondent after the demise of the deceased, illegally transferred 77 shares in the company to herself. It would therefore be unfair that the Applicants retain the 23 shares in the name of the deceased. b. In any case, as per the consent order adopted on 31st January 2019, the 23 shares in the name of the deceased have been partially distributed equally amongst the 2 houses wherein 11.5 shares go to the 1st Applicant while 11.5 shares go to the 1st Respondent. This therefore means that the 1st Respondent has enjoyed more that half of the proceeds from Mukima Holdings during the pendency of this matter. c. They further propose that the Applicants retain the Tamarind property and we reiterate that the same is not available for distribution. During the 1st Respondent's cross examination the Court inquired about the status of the Machakos HCCC Case No. 10 of 2020 matter and was informed that the there was a judgement delivered at the time and the property was to be demolished, a fact that the Respondents were well aware of. d. As for the Sinyerere/Sitatunqa Block 7/Chepkoiyo/XXX property, the 1st Respondent in her testimony admitted to farming and cutting down trees for profit yet again to the detriment of the Applicants. The same prompted the Applicants to file an application under certificate of urgency dated 28th August 2019 seeking for the 1st Respondent to cease the said activities in an aim to preserve the Estate. e. For the house in Kiiani Property. Kileleshwa, the Court should note that the 1st Respondent is currently in possession of the same and it is where she currently resides. f. The 1st Respondent further states that the two properties House No. 1XX Greenspan Estate, Donholm and Mwewe Apartments, Kileleshwa are not to be distributed as they are not Estate properties. She alleges that the deceased and herself jointly owned these properties and after his demise, the same automatically reverted to her. The Court will note that these allegations were not backed by any evidence brought before it to show that the Properties were in their joint names. On refund of funds by Jane as a consequence of a partial agreement Counsel submits that Jane owes the house of Eileen the following sums: a. A total of Kshs.3,515,141.21/- being the proceeds from Mukima Holdings Limited. b. A total of Kshs. 471 ,788/- being the proceeds from the Tamarind Property. c. A total of Kshs. 1,050,000/- to pay into the Estate for the 7 years she has leased L.R. No. Sinyerere/Sitatunga Block 7/ Chepkoiyo/XXX which property would otherwise have been used to generate income for the Estate. Mr Kibe for Jane filed his submissions dated 21st October 2025. He Submitted that contrary to allegations by the house of Eileen the Deceased's Estate comprised of the following the properties: i) 23 shares in Mukima Holdings Ltd — L. R. No. Ngong/Ngong/3XXXX and 3XXXX. ii) Motor vehicle Reg. No. KBH SXXX; https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5915/eng@2026-04-30 10

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21. 22. iii) Motor vehicle Reg. No. KAX 7XXX; iv) Title No. Sinyerere/Sitatunga Block 7/Chepkoiyo/XXX. v) Tamarind Meadows house No. 8. vi) 25 shares in City Professional Cleaners. vii) Plot at Umoja Innercore. viii) Plot at Embakasi Ranch. Counsel submitted that the following properties listed in the Elizabeth proposal did not belong to deceased at the time of death and therefore did not form part of the estate. i. House in Kijani Villas, Nairobi. ii. House in Kitisuru Estate, Nairobi. iii. Apartment in Mwewe Apartment, Kileleshwa, Nairobi. iv. House in Karen, near Karen County Club. iv. Two Plots in Thome Estate, Nairobi. Counsel further submits that: a. The court should take into account that by a Matrimonial Property Settlement Agreement dated 2nd June, 2006 the 1st Applicant herein waived off her further claims under both the Matrimonial Cause Act, Cap 152 and under the Law of Succession Act, Cap 160. The said Agreement remains valid and binding. Consequently, the 1st Applicant is not personally entitled to any provision in these proceedings. b. By dint of or pursuant to the Matrimonial Settlement Agreement aforementioned the Applicant's children were given the following: iii. c. 23. EWK got 40 Shares in Mukima Holdings Ltd which has two plots known as Ngong/ Ngong/3XXXX and 33133 located at Ngong Town Kajiado County. Bearing in mind the contents of the Deceased's letter to his advocates Ms. Hamilton Harrison & Mathews dated 30th January, 2006, the Deceased under the Matrimonial Agreement aforementioned retained the following properties in order to maintain his family with the 1st Respondent — Jane Wachu Macharia — and to preserve his family heritage:a. The ten acre plot in Cherengany, Trans-Nzoia District. b. Plot No. 2XXX Umoja Inner-Core. c. Site and Service Scheme Plot in Mathare North, Nairobi, N. M. 208. d. Town House No. Bl erected on Land Reference No. 330/59 On the proposed mode of distribution by the Elizabeth for the first house, he submits that Jane had no objection to the following properties being given to the house of Eileen 1. Plot number 2XXX Umoja Innercore 2. Plot A Embakasi Ranching https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5915/eng@2026-04-30 11

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3. Greenspan Estate Donholm 24. He submits that there is no evidence that the deceased had shares or how many in 1. Sameer EA Limited Safaricom Limited and but is it Professional Cleaners is inactive and of no value. He submits that the proposal by Jane takes into account the fact that she has young children. Finally Counsel submits that Eileen Wanjiru Kihunyu should not be a beneficiary of the estate as she had relinquished any claim including under Law of Succession Act in her Matrimonial Properties Settlement agreement. 25. A Probate Court under Law of Succession Act has the following duties: 1. Confirms death of deceased. 2. Appoint of Administrators or Executors of the estate of deceased. 3. Determine the inventory of assets forming the estate of the deceased. 4. Identify the beneficiaries 5. Distribute the estate to the beneficiaries 26. It is not in dispute that deceased Morris Macharia Kihunyu died on 24th July 2014 at MP Shah Hospital. A death certificate has been produced to confirm the death. It is also not in contention that this Court on 6th December 2017 appointed Jane Wachu, Faith Nyaguthie Eileen Wanjiru and Elizabeth Wambui as Administratrix of the estate of the deceased Morris Macharia Kihunyu. The 3rd issue a court has to determine is the assets which form the estates of the deceased. Asset is any tangible or intangible item that has value 27. These assets would include; 1. Real Property - Land, houses 2. Shares in companies 3. Funds in Bank accounts 4. Plant and equipment 5. Vehicles 6. Digital assets- crypto passwords... 28. For the property to form part of the estate it must be free property of the deceased. The Law of Succession Act defines free property as free property in relation to a deceased person, means the property of which the person was legally competent freely to dispose of during his lifetime and in respect of which his interest has not been terminated by his death. 29. It therefore follows that for a property to qualify to be property of the estate of the deceased, there must be tendered evidence of ownership of the property or interest by the deceased at the time of death. 30. EWK for the house of Eileen deponed that the deceased's estate comprised of the following assets; i. House No. 158 Greenspan Estate, Donholm, Nairobi. ii. Tamarind Meadows house No. 8. iii. Shares in Mukima Holdings limited which owns Ngong|Ngong/3XXXX and Ngong/Ngong 3XXXX. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5915/eng@2026-04-30 12

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31. 32. iv. Title No. Sinyerere/Sitatunga Block 7/Chepkoiyo/XXX. v. Title No. 2XXX Umoja Innercore. vi. Plot at Embakasi Ranching Company Limited. vii. vii. Motor vehicles KBZ 8XXX, KBH 8XXX and KAX 7XXX. viii. Proceeds of an account in Stanbic Bank Ltd and CBA (now NCBA). ix. Shares in NSE in respect of Sameer EA Ltd and Safaricom Limited. x. Shares in City Professional Cleaners. xi. House in Kijani Villas, Nairobi. xii. House in Kitisuru Estate, Nairobi. xiii. Apartment in Mwewe Apartment, Kileleshwa, Nairobi. xiv. House in Karen, near Karen County Club. xv. Two Plots in Thome Estate, Nairobi. Jane Wachu Wamuyu for the second house deponed that the Estate comprised of the following assets: i) 23 shares in Mukima Holdings Ltd — L. R. No. Ngong/Ngong/3XXXX and 3XXXX. ii) Motor vehicle Reg. No. KBH SXXX; iii) Motor vehicle Reg. No. KAX 7XXX; iv) Title No. Sinyerere/Sitatunga Block 7/Chepkoiyo/XXX. v) Tamarind Meadows house No. 8. vi) 25 shares in City Professional Cleaners. vii) Plot at Umoja Innercore. viii) Plot at Embakasi Ranch. From evidence of the parties, the following properties are agreed to be free property of the deceased. i) 23 shares in Mukima Holdings Ltd — L. R. No. Ngong/Ngong/3XXXX and 3XXXX. – 1st house ii) Motor vehicle Reg. No. KBH SXXX; - 1st House iii) Motor vehicle Reg. No. KAX 7XXX; - 2nd House iii. Title No. Sinyerere/Sitatunga Block 7/Chepkoiyo/XXX – 1st and 2nd House equally v) Tamarind Meadows house No. 8. - 1st and 2nd House equally vi) 25 shares in City Professional Cleaners. – 1st House vii) Plot at Umoja Innercore. – 1st House viii) Plot at Embakasi Ranch. – 2nd House https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5915/eng@2026-04-30 13

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33. 34. The following properties are disputed by the parties as to whether they are free property of the deceased or not and if they form part the estate. i. House No. 158 Greenspan Estate, Donholm, Nairobi. ii. Proceeds of an account in Stanbic Bank Ltd and CBA (now NCBA). iii. Shares in NSE in respect of Sameer EA Ltd and Safaricom Limited. iv. House in Kijani Villas, Nairobi. v. House in Kitisuru Estate, Nairobi. vi. Apartment in Mwewe Apartment, Kileleshwa, Nairobi. vii. House in Karen, near Karen County Club. viii. Two Plots in Thome Estate, Nairobi. The third issue that has to determine is who are the beneficiaries of the deceased Estate. The distribution of the estate of the deceased is made by the Court to the dependants of the deceased. Section 29 of the Law of Succession Act identifies the dependants who can be beneficiaries. Section 29 provides: Meaning of dependant For the purpose of this Part of this Act, "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; (b) such of the deceased's parents, step-parents, grandparents, grandchildren, step-children, children whom the deceased had taken into his family as his own, brothers and sisters, and half-brothers and half-sisters, as were being maintained by the deceased immediately prior to his death; and (c) where the deceased was a woman, her husband if he was being maintained by her immediately prior to the date of her death. 35. The first group of dependants are the wife or wives or the former wife or wives. It is not in contention that the deceased married Eileen Wanjiru Kihunyu on 5th July 1975. It is also not disputed that he married Jane Wachu Macharia as evidenced by an affidavit of customary marriage sworn by the deceased introducing her to obtain an Identification Card in his name. 36. Being wives both would be dependants as per the Act. From the pleadings and evidence it is clear that the marriage of the deceased to Eileen Wanjiru ran into problems and they separated on 19th March 2006, and agreed to live separately. They consequently entered into a matrimonial property settlement agreement on 2nd June 2006. In the agreement the parties stated; 37. Following the separation of the parties the parties desire to share the properties in the manner hereinafter appearing in accordance with the Married Women's Property Act of 1882 ("the Act") as applied in Kenya by virtue of the Judicature Act. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5915/eng@2026-04-30 14

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Property 38. The parties pursuant to the separation and in accordance with the Act aforesaid agree to divide the matrimonial property in accordance with the provisions of the Act and on the terms and conditions set out herein. Kihunyu will retain and hold absolutely and free of any claim by Wanjiru: 39. a. The ten acre plot in Cherengany, Trans-Nzoia District b. Plot No. 2XXX Umoja Inner-Core c. Site and Service Scheme Plot in Mathare North, Nairobi, N.M.208 d. Town House No. Bl erected on Land Reference Number 330/59 Kihunyu will transfer to Wanjiru to hold absolutely free of any claim by Kihunyu: (a) Land Reference Number 1XXXX/XXX (Avenue Park Estate) Title Number Nairobi/Block 94/XXX (Nyari Estate) Kihunyu will sell Town House No. Al erected on Land Reference Number 330/XX Land Reference Number Githunguri/Githiga/1XXX and Land Reference Number Githunguri/ Githiga/2XXX in order to discharge all and any debts, loans and expenses may constitute an encumbrance on the properties to be transferred by Kihunyu to and on the properties to be retained by Kihunyu or which would in any way or which may be a pre-requisite for such transfers. 40. a. The parties agree that all the furniture fittings and effects in the properties or any of them shall belong to the party to whom the property is to vest by virtue of this Agreement. b. Kihunyu will transfer to their daughter Tabitha Waithera Kihunyu Title Number Nairobi/Block XXX/305 (Imara Daima) to hold absolutely and free off any claim by either party. In paragraph 9.1 of the Settlement Agreement the deceased and Eileen agreed; Each of the parties hereto agrees and confirms that this Matrimonial Property Settlement Agreement constitutes a full and final settlement and/or a determination of any claims by any party against the other for the properties and that this Agreement constitutes a determination of and/or waiver by Wanjiru of any further claim by her against Kihunyu under the Act or under the Matrimonial Causes Act, Chapter 152, or under the Law of Succession Act. 41. Mr. Kibe for Jane submits that in view of the clear provisions of this agreement Eileen cannot be a dependant in this cause. Counsel for Eileen did not respond to this aspect. The Law of Succession Act identifies wife or wives, former wife or wives as dependants of the deceased for the purposes of Succession. 42. A wife becomes a former wife when their relationship is dissociated or severed by divorce, separation or severed by agreement. Where the marriage has been severed, each becomes free from the other. Being free from the marriage bond, they can remarry or in any way chart their own lives without references to the former relationship. Why then should a person who was set free when the man was alive be allowed https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5915/eng@2026-04-30 15

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to come back and claim his estate as a dependant when he is dead? Why is the provision silent about the former husband in relation to the estate of the deceased 's former wife? This in my view amounts to discrimination as a situation prohibited by the Constitution of Kenya 2010? 43. It is my view that entertaining a former wife to the table of distribution only when the former husband is dead as a disruption of family peace particularly where both parties have moved on after the divorce. This is even more absurd when the parties have divorced, the former wife has exercised her rights under the Matrimonial Property Act, received her share in the division of the Matrimonial Property, moved on and got married. She learns of the death of the former husband, hurries back to the former husband's home to demand her share as a dependant. Any provision of law whose application would lead to absurd outcomes cannot be constitutional. I therefore find identifying former wife or wives as dependantsto be unconstitutional on grounds of discrimination against former husband and secondly on the ground that it's application leads to absurd outcomes. 44. In respect the position of Eileen Wanjiru Kihunyu, in these proceedings, it is not contested that they separated and there was an agreement on division of Matrimonial Property. She received her share. Elizabeth her daughter informed Court that Eileen indeed received her share of the property. She confirmed that Eileen received all the property under the agreement and in fact sold her house to fund her treatment in the U.S. In the agreement the parties agreed: 45. Each of the parties hereto agrees and confirms that this Matrimonial Property Settlement Agreement constitutes a full and final settlement and/or a determination of any claims by any party against the other for the properties and that this Agreement constitutes a determination of and/or waiver by Wanjiru of any further claim by her against Kihunyu under the Act or under the Matrimonial Causes Act, Chapter 152, or under the Law of Succession Act. 46. In view of the explicit agreement in which she relinquished any claim by her on the property of the deceased or his estate under the Law of Succession Act, she cannot now purport to claim to be a beneficiary. This agreement excludes her and I do not find that Eileen Wanjiru is not a dependant or beneficiary of the estate of deceased. 47. The second group of dependants under section 29 (a) are: 48. 1. The children of the deceased whether or not maintained by the deceased immediately prior to his death. 2. Grandchildren, step children whom the deceased had taken into his family as his own This provision identifies biological children the grandchild the child of deceased son or daughter as a beneficiary. It also identifies the step child as a beneficiary. A step child is a child born to or legally adopted by the one spouse before marriage whom deceased have not legally adopted. If deceased legally adopts the child, the parent-child relationship is the same as if the child was biologically related to deceased. 49. The 3rd group is a child whom the deceased had taken in as his family as his own. The taking of the child as his family is what is explained in Section 3 of the act as taking permanent parental responsibility. 50. Ms Ndirangu for Eileen urged the court to exclude from the list of dependants 3 of the Children born by Jane as they are not biological children of the deceased. These children are: 1. Janim James Gichuru Kihunyu 2. AMK https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5915/eng@2026-04-30 16

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3. NEK 51. Counsel submits that since no evidence has been adduced showing that the deceased accepted them in the family and taken permanent parental responsibility, they are strangers to his estate. Mr. Kibe for Jane admits that the said three children are not biological children of the deceased, He submits that there is evidence that the deceased took them in his family and took permanent parental responsibility. This is evidenced by the fact that the children adopted his surname in the Identification documents and he stayed with them from 2008 to the date of death in 2014. He submits that this is evidence that they are children of the deceased for the purpose of Succession. 52. Eileen when giving evidence testified that she married the deceased in 1975. They had four children; 53. 1. Paul Gichuki Kihunyu 2. EWK 3. Tabitha Waithera Kihunyu 4. Esther wairimu Kihunyu In a letter dated 20th January 2006 to his advocate Hamilton Harrison and Matthew, the deceased explained his marriage to Eileen and stated: We have 4 grown up children: a. Paul Gichuhi born 22nd August 1970 before I met his mother and therefore I am not his biological father. He is a trainee pastor with Pentecostal Church at Karen, married with 3 children. b. Elizabeth Wambui - born on 16th September 1975. Although born 3 months after our wedding, I am confident that I am her biological father. She went to study in Britain in 1997 and she is now working there after finishing her education. c. Tabitha Waithera — born on 20th July 1978. She is a self employed florist and beautician in Nairobi. She also supplements her income by collecting rent on a house I own at Imara Daima Estate. It had been agreed with my wife that it would eventually be transferred to her as a gift since I did not spend as much on her education as I had on the other children. 54. Esther Wairimu – born on 20th July, 1978 (Tabitha’s twin sister) A graduate nurse working in Hawaii, USA and having a 10 year USA resident permit. 55. From this evidence, it is clear to this court that although Paul was the biological son of Eileen, was not biological son of the deceased. He accepted him and took him into the family as his own. He gave Paul his family name and acknowledged him. The deceased being the gentleman he was, took in children of his spouses from a previous association and accepted them as his. He took them in and stood with them and gave them his family names. This to me is a clear testimony that he took in Paul Gichuru Kihunyu the son of Eileen and Junior James Mwangi Kihunyu and NEK the children of Jane as his children. and therefore find that they are all children of the deceased for the purpose of succession to his estate. The objection by Eileen is therefore rejected. 56. Consequently, I find the beneficiaries of the estate of the Deceased's estate are: 1. 1st House 1. Paul Gichohi Kihunyu https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5915/eng@2026-04-30 17

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2. 57. 58. 2. EWK 3. Tabitha We Waithera Kihunyu 4. Esther Wairimu Kihunyu 2nd House 1. Jane Wachu Macharia 2. Junior James Gichuru Kihunyu 3. AMK 4. NEK 5. JK - Minor 6. JK Minor 7. Elizabeth Wambui - Minor 8. Mary Wairimu - Minor Upon determining the death of the deceased, identifying the beneficiaries and ascertaining the property which form part of the estate of the deceased, the last of the probate's Court responsibility is to distribute the estate among the beneficiaries. The principles guiding the court in distribution of the estate have now been settled by Courts. Guidance however is provided by Part IV of the Law of Succession Act. Briefly the principles that emerge are: 1. Equity in distribution to each of the Beneficiaries where the personal circumstances are the same or equal. 2. Equitable distribution where personal circumstances are not equal due to age disability or peculiar personal circumstances of beneficiaries. 3. Regard to be given to and taken into account, any transfers made to beneficiaries intervivos during the life of the deceased. These circumstances are provided for in section 28 of the act which provides: Section 28 Circumstances to be taken into account by court in making order 59. In considering whether any order should be made under this Part, and if so, what order, the court shall have regard to(a) the nature and amount of the deceased's property; (b) any past, present or future capital or income from any source of the dependant; (c) the existing and future means and needs of the dependant; (d) whether the deceased had made any advancement or other gift to the dependant during his lifetime; (e) the conduct of the dependant in relation to the deceased; https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5915/eng@2026-04-30 18

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60. (f) the situation and circumstances of the deceased's other dependants and the beneficiaries under any will; (g) the general circumstances of the case, including, so far as can be ascertained the testator's reasons for not making provision for the dependants. The deceased during his lifetime and in the Matrimonial Property Settlement agreement gave some of the beneficiaries his property. 1. Clause 3.15 Deceased transferred to Tabitha Waithera Kihunyu Nairobi Block XXX/305 Imara Daima free of any claim. 2. Paul Gichohi was given a block of flats in Mathare North. 3. EWK 20 shares in Mukima Limited. 4. Esther Wairimu Kihunyu 20 shares in Mukima Limited. Ksh.12.5 million from Bank. 61. In accordance with the provision of section 28 this intervivos transfers have to be taken into account by the Court. 62. Jane Wachu Macharia the second house had received the following assets/properties intervivos or shortly after the death of the deceased. 1. 77 Shares in Mukima Investment Company. 2. Kileleshwa Mwewa Apartments 3. Property in Greenspan Estate 4. 75 shares in City Professional Cleaners 5. Kenya shilling 12.5 million from Bank 63. In accordance with the provisions of section 28 of the Act this transfers to beneficiaries of assets or properties intervivos or shortly after death of the deceased will be taken into account by the Court. 64. From the evidence and submissions of the following properties have been agreed to form part of the estate. i) 23 shares in Mukima Holdings Ltd — L. R. No. Ngong/Ngong/3XXXX and 3XXXX. – 1st house ii) Motor vehicle Reg. No. KBH SXXX; - 1st House iii) Motor vehicle Reg. No. KAX 7XXX; - 2nd House iv. Title No. Sinyerere/Sitatunga Block 7/Chepkoiyo/XXX – 1st and 2nd House equally v) Tamarind Meadows house No. 8. - 1st and 2nd House equally vi) 25 shares in City Professional Cleaners. – 1st House vii) Plot at Umoja Innercore. – 1st House viii) Plot at Embakasi Ranch. – 2nd House https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5915/eng@2026-04-30 19

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65. This Court therefore issues a partial confirmation of the grant of the estate and distribution as follows,: https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5915/eng@2026-04-30 20

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Name Description Of Properties Share Of Heirs Paul Gichuhi Kihunyu 23 shares in Mukima Holdings Ltd — To share Equally EWK Esther Wairimu Kihunyu L. R. No. Ngong/3XXXX 3XXXX. – Paul Gichuhi Kihunyu Motor Vehicle KBH 8XXX To share Equally Motor vehicle Reg. No. KAX 7XXX; - Absolutely Plot at Embakasi Ranch. To hold in trust for herself and her children Title No. Sinyerere/Sitatunga Block 7/Chepkoiyo/XXX – To share 50% equally Tabitha Waithera Kihunyu Ngong/ and EWK Tabitha Waithera Kihunyu Esther Wairimu Kihunyu Jane Wachu Macharia Paul Gichuhi Kihunyu EWK Tabitha Waithera Kihunyu Esther Wairimu Kihunyu Jane Wachu Macharia Paul Gichuhi Kihunyu EWK To 50% hold in trust for herself and her children Tamarind Meadows house No. 8. To share 50% equally Tabitha Waithera Kihunyu Esther Wairimu Kihunyu Jane Wachu Macharia Paul Gichuhi Kihunyu EWK To 50% hold in trust for herself and her children 25 shares in City Professional Cleaners. To share Equally Plot at Umoja Innercore. To share Equally Tabitha Waithera Kihunyu Esther Wairimu Kihunyu Paul Gichuhi Kihunyu EWK https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5915/eng@2026-04-30 21

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Tabitha Waithera Kihunyu Esther Wairimu Kihunyu 66. The following properties whose ownership is in dispute are left out: i. House No. 158 Greenspan Estate, Donholm, Nairobi. ii. Proceeds of an account in Stanbic Bank Ltd and CBA (now NCBA). iii. Shares in NSE in respect of Sameer EA Ltd and Safaricom Limited. iv. House in Kijani Villas, Nairobi. v. House in Kitisuru Estate, Nairobi. vi. Apartment in Mwewe Apartment, Kileleshwa, Nairobi. vii. House in Karen, near Karen County Club. viii. Two Plots in Thome Estate, Nairobi. DATED THIS 30TH DAY OF APRIL, 2026 S. N. RIECHI JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5915/eng@2026-04-30 22

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