Joseph Muthee Nderitu v Lucy Gathoni Mugambi & 2 others

3. The Deceased herein was married to three (3) wives and was blessed with eleven (11) children one of which was an adopted daughter. 4. The 1st protester Lucy Gathoni Mugambi is the said adopted daughter in line with Gikuyu customary rituals. Her parents died during a pandemic and her grandparents gave her out to the Deceased. 5. The petitioners proposed mode of distribution singles out four (4) sons and leaves out his unmarried sisters including the 1st protestor. 6. His proposed mode of distribution is as follows; 1. John Muthee Nderitu - 5 acres 2. Francis Muiga Nderitu - 2.85 acres 3. John Ngunjiri - 2.85 acres 4. Ngatia Nderitu - 2.85 acres 5. Lucy Gathoni - 0 acres 7. The protest is based on the petitioners’ mode of distribution. The petitioner and his witness contend that the 1st protestor was not a daughter of the deceased as her father is one Ikua. 8. The 1st protestor and the 2nd and 3rds witness evidence is that she was not a biological daughter but was given to the Deceased under Gikuyu customary rites. 9. Her witness Francis Githua Ikua did testify that the 1st protestor was a daughter to the Deceased under Kikuyu customary rites. The Deceased took her up as his daughter from the tender age of two (2) years and grew up under the first house as the first wife did not have children. 10. The petitioner in his affidavit in support of the summons for confirmation of grant has acknowledged the 1st protestor as a daughter of the deceased and therefore cannot be allowed to blow hot and cold at the same time. It is crystal clear that in his preferred mode of distribution he did not include the 1st protestor and the other sisters. Two of whom are the 2nd and 3rd protestors. 11. Evidence goes to show that the Deceased during his life time distributed his land into six (6) equal portions. Two (2) portions to his second house given to the two (2) sons, three (3) portions (3) to the 3rd house given to the three (3) sons and the remaining portion to the 1st house to belong to the 1st protestor. 12. The 1st protestor testified that she lived and cultivated in the portion given to her by the Deceased till the time she got married. It is this portion that the petitioner had claimed to be his and added it to read five (5) acres. It is the portion that she has obtained restraining orders from the court. 13. The 1st protestor places odiance on section 42 of the Law of Succession which provides; ‘An intestate has, during his lifetime or by will, paid, given, or settled any property to or for the benefit of a child, grandchild or house, or taken had he not predeceased the intestater, that property shall be taken into account in determining the share accruing to the child, grandchild or house’. 14. Having found that the 1st protestor was a daughter of the Deceased from the 1st house. I find that she is entitled to 1/6 of the suit land as the only child of the 1st house. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12550/eng@2026-03-05 2

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15. The 2nd protestor Elizabeth Wacuka belongs to the 2nd house. Her share should be excised from that of her two (2) brothers. 16. The 3rd protestor Kirigo Nderitu should get her share from the 3rd house. It should be excised from that of her three (3) brothers. 17. The court is satisfied that the protest by the three (3) protestors has merit and it is allowed as prayed. RULING READ AND DELIVERED VIRTUALLY THIS 5TH DAY OF MARCH, 2026. .......................... MARTIN M. MUYA JUDGE In the Presence of: Mrs. Njuguna for the Respondent Petitioner Court assistant – Kinyua https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12550/eng@2026-03-05 3

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