The High Court has upheld the unequal distribution of a deceased father’s estate, dismissing an appeal by one of his sons who argued that the family land should have been shared equally among all beneficiaries.
In a judgment delivered on June 26, 2026, Justice Kennedy Kandet affirmed the decision of the Limuru Magistrate’s Court, finding no legal basis to interfere with the distribution of the estate of the late George Wairere Gatoro.
The appeal was filed by Samuel Njoroge Wairere, who contended that the estate ought to have been divided equally under Section 38 of the Law of Succession Act. He also claimed that he had been denied a fair hearing because he was allegedly not served with hearing notices and was in custody during the succession proceedings.
However, Justice Kandet found that the court record did not support those claims. The judge noted that Samuel had himself applied for confirmation of the grant in October 2011, proposing an equal distribution of the estate. His proposal was opposed by other beneficiaries through an affidavit of protest, prompting the trial court to determine how the estate should be shared. Court records further showed that Samuel was represented by advocates during the hearing of the protest.
“The Appellant was not denied an opportunity to be heard in the proceedings leading to the confirmation of the grant,” Justice Kandet held.
The court also dismissed Samuel’s claim that he was in custody during the proceedings, noting that the remand warrant he relied on was dated August 3, 2018—about five years after the ruling complained of was delivered in January 2013. Although Section 38 of the Law of Succession Act provides that the estate of a person who dies intestate should ordinarily be shared equally among surviving children, the judge emphasized that equal distribution is not an inflexible rule.
Citing decisions of the Court of Appeal, Justice Kandet observed that courts may depart from strict equality where the circumstances of a particular case justify a different mode of distribution. The judge found that the trial magistrate had considered both Samuel’s proposal for equal sharing and the alternative proposal by the other beneficiaries before adopting the latter.
“The Appellant has not demonstrated that the trial court considered irrelevant matters, ignored relevant evidence, or misapplied the law,” the judge ruled.
The High Court also noted that the disputed ruling was delivered in January 2013, the grant was confirmed the following month, rectified in 2018, and the estate was fully distributed with individual land titles issued to beneficiaries in February 2021. Justice Kandet observed that Samuel only filed his appeal in 2022, nearly nine years after the ruling and after the succession process had largely been completed.
Finding no evidence of fraud, procedural unfairness, concealment of material facts or any other legal error, the court dismissed the appeal, upheld the magistrate’s decision and ordered each party to bear their own costs.
