Esther Wanjiru Kiarie v Mary Wanjiru Githatu [2016] eKLR

Key Facts

Deceased Name

Issues

• The court determined whether the objector (first wife) was entitled to half of the deceased's estate acquired between 1968-1984 under a resulting trust, or if the entire estate should be distributed equally among both widows and all children under section 40 of the Law of Succession Act. The court found the objector's non-financial contributions to the businesses and properties established a resulting trust, entitling her to half of the pre-1984 assets.
• The court ordered the objector, who has been managing the estate, to provide a full and true account of all rents and income collected from 2002 to the date of judgment. This was mandated to ensure transparency, with the report to be filed by a Certified Public Accountant within 60 days.
• The court assessed if the objector's management of the deceased's butchery, hotel, and farming enterprises between 1968-1984—despite properties being registered in his name—established a resulting trust under Kikuyu customary law and equity principles. Evidence from witnesses confirmed her active role, leading to the conclusion that her contributions created a valid trust claim.

Date of Death

Holdings

• The court ordered valuation of all immoveable assets by a registered valuer within 30 days and a full account of rents and income from the estate by a CPA within 60 days to facilitate fair distribution.
• The originating summons by the objector was upheld as valid under the Law Reform Act and Probate Rules, despite procedural challenges about timing and self-adversary claims. The objector's rights were determined before distribution under the Law of Succession Act.
• The court found that the objector (first widow) is entitled to half of the properties acquired prior to 1984 due to non-financial contributions under Kikuyu customary law and a resulting trust. The remaining half of pre-1984 properties and all post-1984 acquisitions will be divided among the two widows and children under section 40 of the Law of Succession Act.

Remedies

• The court confirms the petitioner retains the costs awarded by the Court of Appeal in the superior court and the Court of Appeal itself, declining to reopen the matter.
• The court orders the valuation of all immoveable assets registered in the deceased's name by a registered valuer agreed upon by the administrators within 30 days, or appointed by the court if no agreement is reached. The objector must submit a full and true account of all rents and income from the properties from 9th April 2002 to date, filed under a Certified Public Accountant within 60 days. The costs of valuation and accounts are to be borne by the estate. A mention is scheduled after 60 days to receive the reports and finalize distribution orders.

Will Type

Probate Status

Legal Principles

• The court exercised discretion under sections 27, 28, and 35-38 of the Law of Succession Act to ensure a fair distribution of the estate, deviating from the strict application of section 40.
• The court recognized a resulting trust in properties acquired prior to 1984 due to the objector's non-financial contributions under Kikuyu customary law.
• The objector successfully met the burden of proof to establish a resulting trust by demonstrating her contributions to the deceased's businesses and property acquisition.

Succession Regime

Precedent Name

• Rono v Rono & another
• Evans Nyakwana v Cleophas Ongaro
• Samuel Kamau Macharia and another v Kenya Commercial Bank
• Re Mwangi Giture (Deceased)
• Rael Vulekani Musi v Rachael Edagaye Akola

Executor Name

• Esther Wanjiru Kiarie
• Mary Wanjiru Githatu

Cited Statute

• Law of Succession Act
• Evidence Act
• Matrimonial Property Act 2013

Executor Appointment

Judge Name

Passage Text

• Section 40 does not however take away the discretion of the court to distribute the estate fairly. By dint of sections 27, 28 and 35 of the Act, the court has been clothed with wide discretion to provide for dependents or beneficiaries.
• The properties here are all registered in the name of the deceased. I am alive that under the repealed land regime... one of the overriding interests was a trust including a spousal interest.
• In answer to question number 4 in the originating summons, the joint interest of the deceased and the objector cannot be easily partitioned. I apply the maxim that equality is equity. It must follow that the objector is entitled to half of the properties acquired prior to 1984.

Beneficiary Classes

• Spouse / Civil Partner
• Child / Issue