M'Itwathuku (Legal Representative of the Estate of the Late Karuri M'Itwathuku) v Kairigo

Gituma Musa Muturuchiu, and the appellant in portions of 1.50 acres, 0.50 acres, 0.25 acres, 1 acre and 0.45 acres respectively. 3. The respondent, Charity Kairigo led an objection to the conrmation of grant and alleged that she was the 2nd wife to the deceased whom she married in March 1969 and that they were blessed with 3 children; Jerica Gakii, Lucy Kagendo and John Mwiti. Her position was that in addition to the deceased’s children with her, the deceased was also survived by one Francis Mbaabu M’Twathuku. She averred that the deceased left her residing on LR No. Nthimbiri/Igoki/581. She alleged that after her husband died, the appellant and M’Arimi M’tuanthuku started claiming the entire estate of the deceased and in the year 1996 they torched her house in a bid to evict her and ultimately removed her from the property on 10th February 2012. The respondent alleged that the appellant and M’Arimi M’tuathuku purposed to sell portions of land to one Silas Gituma, John Kaburia and one Peter Nturibi. The respondent claimed that the deceased died while she was still married to him and that she had never gotten married to any other person subsequent to his death. 4. The respondent further averred that the deceased subdivided the land with intention of transferring to his beneciaries as follows: 576 to the appellant, 577 to Francis Mbaabu, 578 to Ayub Mwenda, 579 to Harriet Gaiti, 580 to John Mwiti and 581 to the respondent. She averred that the deceased had already transferred LR. Nos. 579 and 580 to the respective beneciaries but died before he could transfer the other portions. 5. The appellant led a relying adavit in response to the objection. He averred that he had always been in occupation and use of the land parcel LR No. Nthimbiri/Igoki/581 and had built houses dating back to 1976. He averred that the respondent had an extra marital aair with his deceased father and that they got three children, Jerica Gakii, Lucy Kagendo and John Mwiti, whom he adopted when the respondent left them at their home as infants in 1976. He averred that he has provided for the children in the estate of the deceased. He averred that the respondent left in 1976 and got married to one Wilson Ngunyi and lived with him until 2012, getting three children with him. That in 2012, she moved back to the deceased estate, to live with her son, John Mwiti on parcel No. 580 which the deceased bequeathed to him before he died. He averred that it was on the same land that the deceased was buried. He averred that the respondent has no valid claim, right or interest in the deceased estate. 6. The appellant averred that the deceased sold land to three people, John Kaburu MiRimberia, Silas Gituma and Peter Nturibi 2 acres each but had not transferred to them. He also transferred 579 to Harriet Gaiti, and 580 to John Mwiti, and stated that they should be provided for in the deceased estate accordingly. 7. John Wycli Mureithi Gituma and Margaret Gituma were joined as interested parties, however on 22nd March 2017 the High Court made a ruling, revised its previous order made on 8th February 2016 enjoining them in the cause, and removed them from the proceedings. The Judge gave them 6 months to establish their claim against the administrator of the estate. 8. The matter proceeded by way of adavit evidence. The respondent’s evidence was as elaborated above. One Harriet Gaiti M’ikiao and Judah Matumbi led adavits in support of the respondent’s case. Harriet’s evidence was that the deceased had two wives; Karuri and the respondent. The deceased and the respondent had 3 children. At the time of deceased’s death, the respondent was living at his home. Lastly, after the death of the deceased, the children of the Karuri (deceased 1st wife) chased her away from her matrimonial home. 9. Judah, a former Chief of Nthimbiri Location, averred that he was appointed the area chief in 1996 and at that time the respondent was married and was living on the deceased’s estate and continued to live https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1978/eng@2026-09-25 2

page 2 of 11

there even after the demise of the deceased. On 3rd February 2000 he held a meeting at the deceased’s home accompanied by 5 elders and after a lengthy deliberation, it was agreed that the respondent was a wife to the deceased. In the meeting all the children of the deceased were present. Lastly, he conrmed that the respondent was married to the deceased and she never left the deceased’s estate after his demise. 10. Anjerica Gakii and Lucy Kagendo, daughters of the respondent, and Harriet Gaiti also swore adavits in support of her case. The daughters averred that prior to the death of their father, their father had subdivided his land into six portions and had intended to distribute as described by the respondent herein above. Lastly, they averred that by the time of his demise, their father had already transferred Nthimbiri/579 and 580. Harriet on her part averred that the respondent was a wife of the deceased and that she never married but was thrown out by the sons of the rst wife after the deceased died. Harriet laid no basis of how she knew about the respondent and the deceased. 11. On his part, the appellant’s evidence was as elaborated herein above. One William Kigunda Mutunga and M’Ringera M’Miriti led adavits in support of his case. William’s evidence was that the respondent was married to the deceased in 1971 and they had 3 children. Afterwards she divorced him and got married to one M’Ikiugu M’Mutungi. Sometime later elders met and agreed that the dowry paid by the deceased for the respondent be returned before M’Ikiungu could pay his own dowry and the same was done. He averred that before the deceased died he subdivided his land and transferred to John Mwiti 3 acres. When the deceased died, the respondent who by then had 3 children with his subsequent husband, returned to the deceased home and demolished his dwelling and sold all the building materials. It was averred that the respondent never returned to his subsequent husband but instead she got married to one Mutwiri and only returned to the deceased village in 2012. William contended that the respondent left the deceased for 20 years and was re-married and therefore was not entitled to any share of the estate of the deceased. 12. M’Ringera M’Miriti’s evidence was similar to that of William to the eect that the respondent got married to the deceased in 1971 and got three children with him. The elders ordered dowry paid by the deceased to her family be returned when she married someone else, and that it was returned in 1977. 13. In the judgment dated 18th December 2018 Gikonyo, J. conrmed the grant to the appellant. He identied two issues for determination: whether the objector is a wife of the deceased for purposes of distribution, and how the estate of the deceased should be distributed. 14. The Judge applied; section 2 of the Law of Succession Act [LSA] and found that the respondent was a former wife of the deceased; applied section 29 of the LSA and found that she was a dependant of the deceased. He found that the evidence adduced showed that, although it was said that the respondent remarried, she later on went back to the estate after the death of the deceased, and that therefore she continued to depend on the deceased. 15. The Judge recognized that the deceased transferred part of his land inter vivos; being 3 acres transferred to John Mwiti; being LR. No. Thimbiri/Igoki/580 and No. 579 transferred to Harriet Gaiti. That what was left of the estate was LR. No. Thimbiri/Igoki/576, 577, 578 and 581. Lastly, the Judge found that the deceased had 7 children and noted that they could not agree on the mode of distribution of the estate and therefore relying on section 38 of Law of Succession he ordered as follows: 1. “LR. No. Thimbiri/Igoki/576 (measuring 0.40 ha) – M’Arimi M’tuathuku wholly. 2. LR. No. Thimbiri/Igoki/577 (measuring 0.40 ha) – Charity Kairigo wholly. 3. LR. No. Thimbiri/Igoki/578 (measuring 0.40 ha) – Anjerica Gakii and Lucy Kagendo to share equally. https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1978/eng@2026-09-25 3

page 3 of 11

4. LR. No. Thimbiri/Igoki/581 (measuring 1.72 ha) – to the estate of Ayub Mwenda, Georey Mworia and Estate of Margaret Karegi to share equally.” 16. This judgment is what aggrieved the appellant and caused him to prefer this appeal. The Judge has been faulted of: failing to hold that the respondent, though a former wife of the deceased, was divorced and remarried during the lifetime of the deceased and begot 3 children with the new husband and thereby relinquished any personal interest in or entitlement to the estate of the deceased; failing to be guided by the principles set out at sections 28, 37 - 41 of the Law of Succession Act, Cap 160 in determining the distribution of the estate; failing to hold that the respondent, even if she were married, was entitled to life interest in the estate and not a denite share; of awarding the respondent 1.00acre of land and failing to make any award for the appellant’s mother who was the genuine surviving spouse and the original petitioner for the benet of her children, thus disadvantaging the appellant’s house; failing to appreciate the fact that the respondent’s house had received a gift inter vivos through her son John Mwiti M’Tuanthuku of LR. No. Nhtimbiri/Igoki/580 measuring 3 acres and failed to take it into account when distributing the estate; failing to set aside any portion of the estate to await the determination of the claims by the interested parties who had purchased from the deceased thus creditors of the estate despite permitting them to establish their claims against the appellant in a land court thereby leaving the appellant exposed to attachment on behalf of the estate.; and, arriving at a decision wholly against the adduced evidence, applicable law and totality of the circumstances of the case. 17. The appellant seeks this Court to make orders that the judgment and decree of the High Court dated 18th December 2018 be set aside, the estate of the deceased be redistributed by this Court or any other Superior Court in order to ensure equity and justice between the 2 houses of the deceased and the creditors of the estate, and for costs in the appeal and in the Superior Court. 18. The appeal was heard through this Court’s virtual platform on 24th February, 2025. Present for the appellant was learned counsel Ms. Kajuju Kanampiu who held brief for Mr. Mwenda Mwarania, while learned counsel Mr. Kariuki was present for the respondent. Both counsel relied entirely on their written submissions dated 11th and 14th February 2025 respectively. 19. Ms. Kajuju for the appellant challenged the trial court for recognizing the respondent as a wife of the deceased for succession purposes, against clear evidence that she had divorced, remarried, and bore other children with another man during the deceased’s lifetime, thus forfeiting any spousal claim to the deceased’s estate. The appellant placed reliance on section 3 of LSA, 20. Counsel also relied on a text in the Book; the Law of Succession by Justice William Musyoka at Page 100, where he states: “ For the purpose of the rules of intestacy, a divorced spouse has no rights to the intestate’s estate; a judicially separated spouse is, however, entitled. This applies to all legal marriages whether contracted under statute or customary law. Customary law marriages include the woman- to-woman marriage arrangements. Under Section 3(1) of the Law of Succession Act, a separated wife is considered a wife for succession purposes. The divorced spouse may make a claim under the family provisions in Section 26 of the Law of Succession Act for reasonable provision from the estate. The denition in Section 29 of a dependant for the purpose of Section 26 includes a former wife or former wives recognized as such and protected under Section 3(5) of the Law of Succession Act.” https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1978/eng@2026-09-25 4

page 4 of 11

21. Ms. Kajuju submitted that the text claried that while a separated spouse may inherit, a divorced and remarried spouse cannot. She further argued that even if the respondent was recognized as a spouse, she remained only entitled to a life interest under section 35 of the LSA, not an absolute share. Therefore, the one (1) acre awarded to her should have reverted to the estate of the deceased upon her death. In addition, the appellant emphasized that the respondent’s household had already beneted from a gift inter vivos of three A (3) acres LR. Nthimbiri/Igoki/580, and that under section 42 of the LSA it ought to have been factored in the distribution of the estate. 22. Mr. Kariuki for the respondent submitted that the appeal was without merit, and emphasized that the trial court correctly recognized the respondent as a wife of the deceased for succession purposes. He urged that under section 29 of the Act, a dependant includes a wife or former wife, that contrary to the appellant’s submission, the trial court rightly found evidence that supported the fact she never remarried but that she continued to depend on the deceased’s estate. He contended further that the appellant’s witnesses could not prove the alleged divorce or remarriage and argued that her witnesses conrmed her long cohabitation with the deceased, their three (3) children, and the fact that hostility from the appellant’s family; including burning her matrimonial home, forced her out only after the deceased’s death. 23. Ms. Kajuju raised the issue of creditors and faulted the Judge for failing to set aside land to settle claims of the purchasers, thereby exposing the appellant to estate creditors. Citing the case of Abok Jmaes Odera T/A AJ. Odera & Associates vs. John Patrick Machira (2013) eKLR and Selle vs. Associated Motor Boat Co. Ltd (1968) EA 123, counsel urged this Court, as a rst appellate Court, to re-evaluate the evidence and the law, arguing that the judgment was against the weight of evidence, statutory provisions, and equitable considerations. 24. Mr. Kariuki, in support of the trial court’s distribution of the estate, maintained that the court was justied in awarding the respondent a dened share, rather than a life interest, citing the case of Stephen Gitinga M’murithi vs. Faith Ngira Murithi (2015)eKLR, where this Court held that in peculiar circumstances, justice may require granting a widow a tangible share instead of a mere life interest. 25. On the issue of gift inter vivos, counsel contended that the Judge considered the land previously transferred to the respondent’s son and ensured he received no additional portion. 26. Regarding third party purchasers, the respondent relied on the trial court’s ruling of 22nd March 2017 which removed them from the succession proceedings and directed them to pursue claims against the administrator and submitted that the Judge was right in not setting aside land for them. 27. In conclusion, Mr. Kariuki urged this Court to uphold the judgment of the trial court and dismiss the appellant’s appeal with costs. 28. We have considered the evidence on record, the written submissions by and on behalf of the parties to this appeal and the authorities cited. 29. This being the rst appeal, the law regarding this Court’s duty, as restated in the oft-cited decision of Selle & Another vs Associated Motor Boat Co. Ltd & Others [1968] EA 123, is to reconsider the evidence, evaluate it and draw its own conclusion of facts and law. In so doing, the Court will only depart from the ndings by the trial Court if they were not based on evidence on record; where the said Court is shown to have acted on wrong principles of law as was held in Jabane v Olenja [1968] KLR 661, or where its discretion was exercised injudiciously as held in Mbogo & Another v Shah [1968] EA 93. https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1978/eng@2026-09-25 5

page 5 of 11

30. In light of the evidence, facts and the applicable law, we are of the view that what falls for our determination is: i. Whether the trial Judge erred to nd that the respondent was a former wife of the deceased; was a dependant, and was entitled to a denite share of the estate of the deceased; ii. Whether the trial court properly considered the gifts inter vivos at the time of distribution of the deceased’s estate; iii. Whether the trial court erred in failing to set aside part of the estate land for claims by purchasers/creditors of the estate. 31. We start by making an observation that there were facts that were not in dispute. There was no dispute that the deceased married the respondent in 1971 and that he sired three of her children: Anjerica Gakii, Lucy Rugendo and John Mwiti. The other undisputed fact is that the deceased gave two persons’ land as a gift inter vivos, LR. Nthimbiri/Igoki/579 and 580 to Harriet Gaiti and John Mwiti, respectively. John was his only son with the respondent. There is no dispute that the deceased sub-divided his land LR. Nthimbiri/Igoki/305, into six portions being, LR Nthimbiri/Igoki/ 576 to 581. The other undisputed fact is that the respondent’s children with the deceased were provided for in the estate, the son John through a gift inter vivos, and Anjerica and Lucy in the proposed distribution by the appellant. 32. On the rst issue of the status of the respondent to the deceased, Judge relied on section 3 LSA that provides: “ wife’ included a wife who is separated from her husband and the terms ‘husband’ and ‘spouse’, ‘widow’ and ‘widower’ shall have a corresponding meaning.” 33. The issue that was before the court is not whether the respondent had been married to the deceased, given that the appellant, though describing her as one who got children with his father, nevertheless admitted she had lived with him between 1971 to 1976. His two witnesses, William and M’Ringeria testied to the marriage between them and the eventual divorce in 1977 in the presence of elders, where the dowry the deceased had paid to her family for her was returned. 34. On the side of the respondent, she called the area Chief Judah and her two daughters, Anjerica and Lucy, and Harriet Gaiti. The Chief said he was posted to the area in 1996. He said that in 2000, he sat with the elders to discuss whether the respondent was the deceased's wife. He said that after the deliberations, he declared she was his wife entitled to inherit from him. The two daughters of the respondent and Harriet averred that their mother was the wife of the deceased. 35. After considering this evidence, the Judge found that ‘the evidence adduced showed that although it was said that the respondent remarried, she later on went back to the estate after the death of the deceased’, and that therefore she continued to depend on the deceased. 36. The Judge did not properly evaluate the evidence adduced on this issue. Judah, the area Chief averred that he was deployed to the area the deceased estate was located in 1996, the same year that the deceased died. Judah did not say whether he ever met the deceased, or whether he witnessed the respondent living with the deceased. Judah knew nothing about the marriage of the respondent to the deceased. Further, he had no power of determining who is a wife for purposes of succession. His evidence was therefore unreliable in that regard. https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1978/eng@2026-09-25 6

page 6 of 11

37. As for the two daughters of the respondent, they were born between 1971 and 1975 or1976. By 1976 when the respondent walked out of the marriage with the deceased, they were toddlers. Any evidence they could have known regarding their parents must have been what was told to them. Their evidence in that regard was unreliable. As for Harriet, she did not say on what basis she claimed that the respondent did not remarry, nor did she disclose whether it was from her own personal knowledge or how she came by the information. She too was not reliable. 38. The inevitable conclusion to make from this evidence is that the deceased lived with the respondent between 1971 and 1976. She left the home and proceeded to re-marry, having three other children with someone else. She was ocially divorced by the deceased in 1977 in a meeting attended by William and M’Ringera and others. The evidence and the respondent’s own conduct squarely fall under section 35 of the LSA. 39. Section 35 (1) of the LSA provides as follows:“ … where an intestate has left one surviving spouse and a child or children, the surviving spouse shall be entitled toa. The personal and household eects of the deceased absolutely and b. A life interest in the whole residue of the net intestate estate: Provided that, if the surviving spouse is a widow, that interest shall determine upon her remarriage to any person.” [Emphasis added] 40. This section makes it clear that a surviving spouse is entitled to the personal and household eects of the deceased and a life interest in the residue of the net estate; provided she does not remarry. The evidence adduced in this case is that, the respondent remarried and got other children while the deceased was still alive. Secondly, the dowry paid to her family was refunded/returned in 1977 thus ocially dissolving the marriage. That dissolution of marriage determined her interest in the estate of the deceased, and upon remarriage solidied it. That determination is incapable of reversa;, thus, the fact that the respondent returned to the deceased estate after he died, and entered the home of her son to live there, did not have any eect on the dissolution of her marriage, and neither could it earn her any entitlement or interest in the deceased estate. The learned Judge fell into error when he found that even though she was divorced by the deceased and remarried, by returning to the deceased estate after his death, it was proof of dependence on the deceased. Dependence cannot be after the fact of the death of the intestate. We nd that the Judge erred in nding that the respondent was entitled to any interest in the estate of the deceased. 41. Section 3, 29 and 40 of the LSA that the Judge applied to nd that the respondent was entitled to an interest in the deceased estate as a dependant, do not apply to her circumstances. 42. The second issue was whether the trial court properly considered the gifts inter vivos at the time of distribution of the deceased’s estate. As we started by observing, there was no dispute that the deceased gave gifts inter vivos to Hariet Gakii and John Mwiti. The Judge took them into consideration during distribution, ensuring the deceased wishes were fullled, and not allocating any other land to them. However, in considering the overall distribution of the estate to the two houses of the deceased, no mention was made. 43. There was other evidence by the respondent and the two daughters that the deceased intended to distribute the rest of the estate to others, whom they named. The Judge did not act on that evidence. The appellant and his witnesses made no mention of such intention. We think the Judge did the correct https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1978/eng@2026-09-25 7

page 7 of 11

thing not to act on the respondent’s evidence, as there was no evidence given that the deceased either put them into possession, or entered into a contract or such, so as to leave no doubt that his intention was to gift them land. 44. This Court in the case of Peter Wahome Kimotho vs. Josphine Mwiyeria Mwanu [2014] KECA 74 (KLR) held as follows regarding claims of civil nature by parties who entered into contracts with the deceased estate: “On merit of the appeal, it is not disputed that the respondent was not a beneciary of the estate of the deceased…It has been repeated time without number that the objective of the Law of Succession Act is the administration of a deceased’s estate. Claims of civil nature regarding contracts entered into on behalf of the estate of a deceased person unless they have been recognized by the administrators of that deceased person’s estate as liabilities to the estate, fall within the civil realm of the law and cannot appropriately be determined in a succession cause.” Emphasis added. 45. In Mugambi & 2 Others vs. M’Mugambi (Civil Appeal 274 of 2019) [2025] KECA 1235 (KLR) (27 June 2025) (Judgment) this Court stated that: “ As this Court has stated in previous decisions, the ideal situation is where the gift inter vivos is complete. In the sense that it has been transferred to the name of the beneciary, or steps have been taken to eectuate the intention, such as obtaining the consent of the necessary authority if needed, signing of the transfer form, or there is occupation.” 46. In Munyole vs. Munyole (Civil Appeal No. 21 of 2017) [2022] KECA 373 (KLR) (18 February 2022) this Court stated: “ In order for the court to conclude that s deceased person had made a gift inter vivos to a beneciary, evidence must be led to this eect. We note that the trial court considered this question and came to the conclusion that no evidence had been placed before it to show that the deceased had intended that each house should occupy the parcel of land that it was occupying at the time of his death.” 47. This is demonstrated further in Halsbury’s Laws of England, 4th Edition Volume 20 (1) paragraph 67 where it is stated as follows with respect to incomplete gifts: “ where a gift rests merely in promise, whether written or oral, or in unfullled intention, it is incomplete and imperfect, and the court will not compel the intending donor, or those claiming under him, to complete and perfect it, except in circumstances where the donor’s subsequent conduct gives the done a right to enforce the promise. A promise made by a deed is however binding even though it is made without consideration. If a gift is to be valid the donor must have done everything which according to the nature of the property comprised in the gift, was necessary to be done by him in order to transfer the property and which it was in his power to do. ‘The subsequent acts of the donor may give the intended donee a right to enforce an incomplete gift. Thus if a donor puts the donee into possession of a piece of land and tells him that he has given it to him so that he may build a house on it, and the done accordingly, and with the donor’s assent, expends money in building a house, the donee can call upon the donor or his representative to complete the gift’” https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1978/eng@2026-09-25 8

page 8 of 11

48. As to whether the trial court erred in failing to set aside part of the estate land for claims by purchasers/ creditors of the estate. Mr. Kariuki for the respondent submitted that the Judge removed the interested parties from the record, and that these were the persons the appellant referred to as creditors and included in his proposed mode of distribution of the estate. 49. The creditors were John Kaburia M’Rimberia, Peter Nturibi Mbiria and Silas Gituma Muturuchui. Those removed from the record in a ruling that was dated 22nd March, 2017 were John Wycli Mureithi Gituma and Margaret Gituma who had earlier been enjoined as interested parties in the cause. The creditors were recognized by the appellant, the administrator of the deceased estate. The agreements for sale were included in the documents led. The one in respect of John Kaburia M’Rimberia was dated 18th August, 1978, and signed by him as purchaser and the deceased as vendor; the one in respect of Silas Gituma Muturuchia was dated 7th June, 1994, and was signed by him as purchaser and the deceased as vendor, and, the one in respect of Peter Ntubiri was dated14th December, 1994, signed by him as purchaser and the deceased as vendor. The appellant factored these creditors in the proposed mode of distribution of the estate. None of the other beneciaries objected. However, the Judge did not consider them in the distribution. 50. This Court in the case of Peter Wahome Kimotho vs. Josphine Mwiyeria Mwanu (2014) KECA 74 (KLR) held as follows regarding claims of civil nature by parties who entered into contracts with the deceased estate: “ On merit of the appeal, it is not disputed that the respondent was not a beneciary of the estate of the deceased…It has been repeated time without number that the objective of the Law of Succession Act is the administration of a deceased’s estate. Claims of civil nature regarding contracts entered into on behalf of the estate of a deceased person unless they have been recognized by the administrators of that deceased person’s estate as liabilities to the estate, fall within the civil realm of the law and cannot appropriately be determined in a succession cause.” Emphasis added. 51. In the persuasive authority of the High Court in In re Estate of Prisca Ong’ayo Nande (Deceased) [2020] KEHC 6553 (KLR) Musyoka, J. held as follows: “ The applicant considers himself to be a liability of the estate, in other words a creditor, in the sense that the estate was indebted to him. Often, at conrmation, persons who are creditors of the estate are treated as persons who are benecially entitled to a share in the estate. That should not be, for distribution of an intestate estate should be of the net share. It is envisaged that debts and liabilities are settled rst before the estate is distributed. It presupposes that administrators ought to identify the debts and liabilities of the estate rst, settle them and thereafter move on to distribute the net estate after payment of debts and liabilities. For that reason, therefore, creditors and purchasers of property estate ought not to be entertained at this stage. That should be sorted out rst before the administrators le the application for conrmation of grant. However, where they have not been settled, an application for conrmation of ground is mounted, the administrators can quite properly provide for them, within the proposed distribution.” Emphasis added 52. The cases we have cited of Peter Wahome Kimotho vs. Josphine Mwiyeria Mwanu, supra and In re Estate of Prisca Ong’ayo Nande, supra are good law that where administrators of an estate of a deceased person are unable to sort creditors before the distribution of the estate, they can, if they recognize the creditors as a liability of the estate, provide for them in the mode of distribution. In this case, the https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1978/eng@2026-09-25 9

page 9 of 11

appellant did provide for them in the mode of distribution, included the evidence showing they were a liability to the estate of the deceased, and that as the administrator of the estate, he recognized them as such. We nd that it was a misdirection or non- direction for the Judge not to factor them in the distribution of the deceased estate. 53. The result of this appeal is that the Judge erred to declare the respondent a wife and dependant of the deceased estate, and for providing a denite share of the estate. The Judge also erred by failing to provide for the creditors. We are of the view that this matter should go back to the High Court for re- distribution of the estate. We direct that the court handling the re-distribution should take into account, as much as possible, where the beneciaries have settled to reduce disruption and diculties. The re-distribution should not aect LR. No. Nthimbiri/Igoki/579 and 580 that were gifts inter vivos and which ought to be taken into account when re- distribution is done. 54. The result of this appeal is as follows: 1. The judgment of the High Court Succession Cause No. 113 of 1997 delivered by Gikonyo, J. and dated 18th December, 2018, together with the decree issued therein dated 9th July, 2019 be and are hereby set aside; 2. The land parcel LR. No. Nthimbiri/Igoki/581 shared to the respondent, now deceased, should revert back to the estate of the deceased for re- distribution alongside the rest of the estate; 3. The le be returned to the High Court at Meru, before a Judge other than Gikonyo, J. who heard this matter, for proper distribution of the estate, bearing in mind the beneciaries and the creditors of the estate; 4. For eciency sake, the Deputy Registrar, Nyeri Court of Appeal do deliver the le and the judgment of this Court to the Deputy Registrar, High Court Meru within 7 days of receipt of this judgment; 5. The DR, High Court Meru should thereafter cause a mention of this appeal before him/her after serving all the parties for purposes of taking directions for mention of the matter before the Resident Judge, Meru. 6. As the matter is between family members, we make no order as to costs. DATED AND DELIVERED IN NYERI THIS 25TH DAY OF SEPTEMBER, 2026. S. ole KANTAI ………………….…………… JUDGE OF APPEAL J. LESIIT ………………….…………… JUDGE OF APPEAL ALI – ARONI ………………….…………… JUDGE OF APPEAL I certify that this is a true copy of the original Signed https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1978/eng@2026-09-25 10

page 10 of 11

DEPUTY REGISTRAR https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1978/eng@2026-09-25 11

page 11 of 11