Whether the protestor has merit
13.The deceased herein died on 12th October 1993. He was not married and had no children surviving him. It is not contested that the applicant is a nephew of the deceased, for his mother Regina Wanjiku Ruoro and the deceased were siblings.
14.The 2nd protestor said that he is a grandchild of the deceased as the deceased was an uncle to his father. The applicant testified that the 2nd protestor was a neighbour of the deceased and a first cousin to the 1st protestor in that his father, Silas Gitahi is a step brother to the father of the 1st protestor. It is thus clear on the evidence that the 2nd protestor is not a grandson of the deceased as he claims. The only relation that could be deciphered from the evidence is that the 1st and 2nd protesters are cousins, which fact has been confirmed by the applicant. Although the 2nd protestor denied knowing the 1st protestor on cross examination, on cross-examination, he said that the two were cousins. Furthermore, the 2nd protestor testified that he did not know the administrator as he never saw him go visit the deceased and that he did not know the sister to the deceased who was the mother of the applicant. Thus it is evident that the 2nd protestor is not related to the deceased.
15.The 2nd protestor further claims that the deceased sold LR. No. Tetu/Ihururu/158 to his father vide a verbal agreement. It is trite law that he who alleges must prove. This degree of prove is well enunciated in the case of Miller vs Minister of Pensions  cited with approval in D.T. Dobie Company (K) Limited vs Wanyonyi Wafula Chabukati  eKLR. The court stated:-
16.Further, Section 107 of the Evidence Act Cap 80 places the burden of proof on the party who wants the court to rely on the existence of any set of facts to make a finding in his favour, to prove those facts. The 2nd protestor did not produce any documentary evidence to show that the deceased had sold the suit premises to his late father. The 2nd protestor only called PW2 as a witness to support his allegation that his father purchased the land from the deceased. The said witness testified that he did not witness the sale agreement but instead it was the 2nd protestor’s father who told him that the deceased had sold the land to him. Such evidence is hearsay evidence which is not admissible. Therefore, it is my considered view that the 2nd protestor did not prove that the said land was sold to his father.
17.I find that the applicant herein is the closest surviving relative of the deceased in degree of consanguinity and is therefore entitled to inherit from the deceased who was his uncle.
18.Having found no merit in the protest, it is hereby dismissed with no order as to costs.
19.The grant issued to the applicant on 16th November 2018 is hereby confirmed. The applicant Gerald Gakuha Makuri shall be the sole heir of the deceased’s estate comprising of L.R. Tetu/Ihuru/158.
20.The certificate of grant to issue in the foregoing terms.
21.It is hereby so ordered.