https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11452

 **REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT KERUGOYA** **CIVIL APPEAL NO. 67 OF 2019** **IN THE MATTER OF THE ESTATE OF EUNICE WANJIRU NGAI-IMWE (DECEASED)** **BEATRICE NDUNGURI MWAI.....…….…………………………….1ST APPELLANT** **ALFRED NGAIRE NGAI-IMWE........................................................2ND APPELLANT** **VERSUS** **SICILY WAWIRA TITUS...................................................................1ST RESPONDENT** **BANCY NJERI MURIUKI………………...…………………………2ND RESPONDENT** **(Being an appeal arising from the Judgment of Honourable Y.M Barasa (S.R.M) in Kerugoya Succession Cause No. 172 of 2018 delivered on 30/8/2019)** **JUDGMENT** 1. By Summons dated 10/5/2019, the 1st Respondent herein, a daughter of the deceased herein, sought that the letters of administration intestate issued to her on 8/4/2019 be confirmed. She listed herself, Beatrice Ndunguri Mwai, Bancy Njeri Mburu, Justus Mbogo Ngaiimwe and Edith Wamrwa Muriuki as the beneficiaries of the estate. She proposed that **L.R No. Kabare/Njiku/2167 (hereinafter referred to as the suit property)** be registered in the names of the Respondents, since the Appellants were bequeathed L.R Nos. Kabare/Njiku/2169 and 2170 respectively by the deceased. She further contended that Edith Wamarwa Muriuki also had her own land. 2. The 1st Respondent swore a replying affidavit on 26/7/2019 in support of her application. 3. The Appellants herein, a daughter and a son to the deceased, respectively swore an affidavit of protest on 8/7/2019. They urged that the Respondents were aware of the subdivision of L.R No. Kabare/Njiku/1660 into L.R No. Kabare/Njiku/2167 subject to various court cases namely Nairobi HCCA No. 297/1989, Kerugoya Civil Case No. 177/1992, Nairobi Civil Case No. 133/1993, Kerugoya LDT No. 120/1996, Embu HCCA 62/1997, Nyeri Court of Appeal No. 52/2000 and Kerugoya Award 1/1989. The deceased, had during her lifetime allotted her 4 sons the suit property where they have settled on and extensively developed without any interference from their sisters. They proposed that the suit property be shared equally among Beatrice N. Mwai, Justus Mbogo Richard, Alfred Ngare Ngai-imwe and Edith Wawera Muriuki. 4. In its impugned judgment, the trial court determined as follows: ***“The protestor’s father was polygamous. It emerged that in his lifetime he had distributed his property equally to his two wives. It is important to note however that what is being distributed is not the man’s estate but that of one of his widows and so my main focus will be section 35 of the Act...It is on that strength that the petitioner and the beneficiary named Bancy Njeri Mburu have come to court to ask to be given a share of land that belonged to their late mother i.e. land parcel no. KABARE/NJIKU/2167. It is therefore evident that the protestors already got reasonable share out of the estate of the deceased. It is therefore unfair for them to stake a claim on the land their late mother had set aside for herself that is land parcel no. KABARE/NJIKU/2167 measuring 0.40 Ha. The said land parcel should therefore be given to the petitioner and Bancy Njeri Muriuki in equal share. The petitioner and Bancy Njeri have successfully persuaded this court that they were unfairly left out in the distribution of their late mother’s land and are therefore entitled to a share. The petitioner has succeeded and the summons for confirmation of grant dated 10/5/19 is hereby allowed. The petitioner Sicily Wawira Titus and Bancy Njeri Muriuki are hereby allocated land parcel no. KABARE/NJIKU/2167 (measuring 0.40 Ha) equally.”*** **The Appeal** 1. On appeal, the Appellants filed their amended memorandum of appeal on 9/2/2024 raising 9 grounds as follows: 1. *The learned trial magistrate erred in law and fact when he misinterpreted the provisions of Section 35 of the Succession Act Cap 160, by applying to the estate yet the same was inapplicable thereby coming into a wrong conclusion.* 2. *The learned trial magistrate erred in law and fact by holding that the decision of the Court of Appeal touching the estate was not binding to the trial court thus by his decision sitting on appeal of the latter thus occasioning a miscarriage of justice.* 3. *The learned trial magistrate erred in law and fact by misdirecting himself on the provisions of Section 2 of the Succession Act Cap 160, thus applying non applicable provisions leading to a wrong decision.* 4. *The learned trial magistrate erred in law and fact when he ignored the fact that the estate distribution had been settled before promulgation of the 2010 Kenya Constitution which he relied on his decision thus occasioning a miscarriage of justice.* 5. *The learned trial magistrate erred in law and fact in failing to consider evidence of the respondents been married and living in their husbands lands and proceeding to grant the entire estate to them thus occasioning a miscarriage of justice.* 6. *The learned trial magistrate erred in law and fact disregarded the provisions of Section 38 of the Succession Act Cap 160, by leaving out the majority of the equal interest beneficiaries to the estate thus occasioning a miscarriage of justice.* 7. *The learned trial magistrate erred in law and fact in failing to evaluate evidence thus making decision against the weight of evidence thus occasioning a miscarriage of justice.* 8. *The learned trial magistrate erred in law and fact in failing to consider the appellants protest evidence which was largely uncontroverted by the respondents thus occasioning a miscarriage of justice.* 9. *The learned trial magistrate erred in law and fact in failing to consider the relationship between the appellants and the respondents thus aggravating a small family misunderstanding by his wrong conclusion which is tantamount to eviction of the appellants, decision against the succession laws thereby occasioning a miscarriage of justice.* **Duty of the Court** 1. This being a first appeal, this court is duty bound to delve at some length into factual details and revisit the facts as presented in the trial court, analyse the same and arrive at its own independent conclusions, but always remembering that, the trial court had the advantage of seeing the witnesses testify. (See ***Selle v Associated Motor Boat Co. & others [1968] E.A. 123***). **Oral Evidence** 1. **Protestor’s Witness 1 Beatrice Ndunguri Mwai** testified that, *“I live in Kiangesho. I am a farmer. The deceased was my mother. We are 4 children. Evans Mwai, Ephantus Muriuki, Justus Mugo, Alfred Ngai-imwe. Sicily Wawira is my sister in law. I am married to Sicily’s brother. I do not agree with the mode of distribution. The land had been distributed through a court order.”* 2. On cross examination, she stated that, *“I got 2 acres from the court order. It is the deceased who instituted the suit to the court. We are not the ones who took her to court. My sisters and Sicily were not part of the court proceedings. In the court proceedings we did not include Sicily. Our mother left one acre for herself. The land is small. We have carried out development on the land.”* 3. **Protestor’s Witness 2 Alfred Ngaire Ngai-imwe** testified that, *“I live in Kimunye. I am a farmer the deceased was my mother. We were 6 children. I am the only surviving son. The Petitioner is an elder sister. I am objecting to the mode of distribution because the 6 of us the Petitioner herein is the 1st born, Evans Mwai 2nd born, Ephantus 4th born, Bancy 5th born and I 6th born. Evanson Mwai died in 2000 when the matter was pending in Court of Appeal. In 1987, our mother said she will give us land. My mother sub divided the land unfortunately giving some people bigger portion mine was the smallest. We sat down with village elders. Mother accepted to distribute the land equally. Sicily indicated that they distribute the land equally. The village elders advised us to go to court. In 1989, the court ordered the land be sub divided equally. My mother appealed in Nairobi. I lost the case and I was advised to take the share I was given by the elders. I filed a fresh case No. 197/92. I lost the case. I appealed in the Court of Appeal. I lost the case and the judge advised me to reconcile with my mother. We reconciled and my mother fined me a he-goat and we settled. In 1995 my mother again sub divided the land unfairly. I went back to court. I went back to court with my mother in 1996. We were referred to the LDT. We won. The tribunal said my mother gets one acre. The Petitioner appealed in the High Court. We lost the case. We went to the Court of Appeal. My mother accepted that the land be sub divided according to the elders award. The Court of Appeal marked the case as settled. In 2003 the land was sub divided through a court order when my mother was still alive. There was an application for the issuance of title deeds. I won it. We got title deeds, me and the 1st protestor. After sub division in 2003 we sat down with village elders and Sicily was also present. Mother warned Sicily not to disturb us because she had settled in her husband’s land. In 2004 we had not drawn plan scheme properly. We requested the same to be amended. I have annexed copy of the map. At that time ladies were not inheriting land. Our mother told us that when she dies we should take her one acre. We have settled on the one acre and built permanent houses. The land was sub divided before the new constitution was promulgated. The Petitioner has more than 7 acres and she is above 80 years. I am 60 years. If you add my share with that of my mother we have 2.7 acres and I have a family. Sicily and Bancy have a bad nature because at Gichugu Law court they wanted the whole land. We transferred the case from Gichugu when we noticed the court was biased. It is not true that the one acre my mother left was supposed to be taken by the petitioner because we have built on it and we sat down and agreed.”* 4. On cross examination, he stated that, *“I filed many cases against my mother. She used to win some and I win some. My mother never instituted any suit. I built on the portion I was given and where our mother left. Sicily has 5 children. I have 3 children. In the Court of Appeal our mother agreed out of her own will to give us land. Our mother died in 2011. When our mother was alive the petitioner used to farm on the land.”* 5. **Petitioner’s Witness 1 Sicily Wawera Titus**, testified that, *“I live in Gatunguru. I am married with children. I want the one acre together with my sister Bancy Njeri. I used to support my mother. I only want the one acre our mother left for us.”* 6. On cross examination by the 1st Appellant, she stated that, *“I used to visit my mother when she was sick. When our mother was in the hospital you demolished her house.”* 7. On cross examination by the 2nd Appellant, she stated that, *“I am 80 years old. I was married in 1960. Mother was sick for many years. You are the one who reported me to father. Our mother said that I be given the land.”* **Submissions** 1. The 1st Appellant (deceased and now represented by Charles Gitari Mwai) faults the trial court for misapplying the law in distributing the estate, thus disinheriting 4 beneficiaries of the estate of the deceased. He urges the court to set aside the impugned decision so that the estate can be shared proportionally among all the beneficiaries taking into account any previous benefits. 2. The 2nd Appellant submits that pursuant to Section 35 (2) of the Law of Succession Act, the deceased herein exercised her power of Appointment and subdivided her net intestate estate, L.R No. KABARE/NJUKI/1660, amongst her surviving children, and the Respondents had not proved any unreasonableness in the distribution of the suit property to the Appellants in four equal shares. He faults the trial court for failing to consider that the Respondents had inherited from the estate of their father and that the suit property was part of the net intestate estate of the surviving widow, who had power of appointment under Section 35 (2) of the Law of Succession Act. He alludes to a consent entered into on 2/6/2022 between the Appellants and the 2nd Respondent. 3. The 1st Respondent urges that the Appellants, Edith Wamwirwa Muriuki and Pauline Karuana Mbogo, benefited from the deceased’s estate, and in accordance with the provisions of Section 38 as read together with Section 42 of the Law of Succession Act, they are not entitled to any share of the suit property, and cites ***Joseph Wairuga Migwi v Mikielina Ngina Munga (2016) eKLR and Martha Wanjiku Waweru v Mary Wambui Waweru (2007) eKLR***. She urges that Section 38 of the Law of Succession Act enshrines the principles of equal distribution of the net intestate to the surviving children of the deceased irrespective of gender and marital status, and cites ***Stephen Gitonga M’murithi v Faith Ngira Murithi (2015) eKLR***. She prays for the dismissal of the appeal with costs, and cites ***Jasbir Singh Rai & Others v Tarlochan Rai & Others (2014) eKLR***. 4. The 2nd Respondent urges the court to consider the validity of the consent that had been entered by Bancy Njeri after all died, and after the other sister and two brothers died. **Analysis and Determination** 1. From the grounds of appeal, the issue for determination is whether the impugned judgment was grounded in fact and law. 2. The 1st Appellanttestified that, ***“The deceased was my mother.******We are 4 children. Evans Mwai, Ephantus Muriuki, Justus Mugo, Alfred Ngai-imwe. Sicily Wawira is my sister in law.”*** On cross examination, she stated that, ***“I got 2 acres from the court order.******My sisters and Sicily were not part of the court proceedings. In the court proceedings we did not include Sicily. Our mother left one acre for herself. The land is small. We have carried out development on the land.”*** 3. The 2nd Appellant testified that, ***“In 2003 the land was sub divided through a court order when my mother was still alive. We got title deeds, me and the 1st protestor. After sub division in 2003 we sat down with village elders and Sicily was also present. Mother warned Sicily not to disturb us because she had settled in her husband’s land.******At that time ladies were not inheriting land. Our mother told us that when she dies we should take her one acre.******We have settled on the one acre and built permanent houses. It is not true that the one acre my mother left was supposed to be taken by the petitioner because we have built on it and we sat down and agreed.”*** 4. The 1st Respondent testified that, ***“I am married with children. I want the one acre together with my sister Bancy Njeri. I only want the one acre our mother left for us.”*** On cross examination by the 2nd Appellant, she stated that, ***“Our mother said that I be given the land.”*** 5. Section 42 of the Law of Succession Act which provides that: ***“42. Where — (a) 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 (b) property has been appointed or awarded to any child or grandchild under the provisions of***[***section 26***](http://www.kenyalaw.org/lex/actview.xql?actid=CAP.%20160#KE/LEG/EN/AR/L/CHAPTER%20160/sec_26)***or***[***section 35***](http://www.kenyalaw.org/lex/actview.xql?actid=CAP.%20160#KE/LEG/EN/AR/L/CHAPTER%20160/sec_35)***of this Act, that property shall be taken into account in determining the share of the net intestate estate finally accruing to the child, grandchild or house.”*** 1. The significance of that section was encapsulated by the court *(F. Gokonyo J)* in ***re Estate of Marete Mbui alias M’Marete M’Mbui alias Justus Marete (Deceased) [2017] eKLR***, as follows: ***“At this point I feel obliged to state - and I have stated in other cases - that section 42 of the Law of Succession Act serves two important purposes; one, it fends off selfish tendencies of human beings in seeking for double portions in the estate of the deceased; and two. It enables the court to attain equity in the sharing out of the estate property among the rightful beneficiaries. Thus, that is the law which I will apply in this case. Another thing; I must state that as a matter of the Constitution and the law, daughters of the deceased are as entitled to inherit their father’s estate in equality with the sons. I need not overemphasize this constitutional reality.”*** 1. Whereas the Appellants contend that the suit property was intended by the deceased to be inherited exclusively by her 4 male children, the Respondents maintain that the same was specifically reserved for the 2 of them (respondents), the other beneficiaries having already received gifts *inter vivos* from the deceased during her lifetime. 2. The Elders Award, which was subsequently adopted by the Court of Appeal had decreed that L.R No. Kabare/Njiku/484 later on changed to L.R No. Kabare/Njiku/1660, be shared equally among Ephantus Muriuki (now deceased), Justus Nyaga (now deceased), Evans Mwai (now deceased), Alfred Ngaire while the deceased herein retained 1 acre thereof. L.R No. Kabare/Njiku/1660 was subdivided into L.R Nos. Kabare/Njiku/2167, 2168, 2169, 2179 and 2171. The record shows that the deceased transferred L.R No. Kabare/Njiku/2169 measuring 1.06 Ha to Beatrice Ndunguri Mwai - daughter in law, L.R No. Kabare/Njiku/2170 measuring 1.06 Ha to Alfred Ngare Ngai-Imwe – son and retained L.R No. Kabare/Njiku/2168, 2171 and the suit property. It appears from the evidence led that L.R No. Kabare/Njiku/2171 was reserved for Edith Wamwirwa Muriuki – daughter in law and L.R No. Kabare/Njiku/2168 for Paulina Karuana Mbogo – daughter in law. 3. The Court must arrive at the irresistible conclusion that having received no comparable benefit from the deceased, the Respondents were justifiably entitled to the suit property to the exclusion of the other beneficiaries, and the trial court, properly applying the provisions of Section 42 of the Law of Succession Act, so found. 4. On the consent purported entered into by the **Appellants and the 2nd Respondent**, the consent dated 2/6/2022 was executed solely by the 2nd Appellant and the 2nd Respondent, to the exclusion of the 1st Appellant and the 1st Respondent, whose rights were directly affected. The question then begs whether such consent can be binding upon all the parties herein, if at all. If at all, such a consent may only be an agreement between the consenting parties. But having excluded crucial parties, it cannot be held to bind **all** the parties. 5. I respectfully agree with the Court in ***Edward Acholla v Sogea Satom Kenya Branch & 2 others [2014] KEELRC 1498 (KLR)***, where the court *(M. Mbaru, J)* observed that: ***“Consent becomes a judgment or order of the court once adopted as such. Once consent is adopted by the court, it automatically changes character and becomes a consent judgment or order with contractual effect and can only be set aside on grounds which would justify setting aside, or if certain conditions remain unfulfilled, which are not carried out.”*** 1. In ***Brooke Bond Liebig v Mallya (1975) EA 266*** where the court stated that: ***“The compromise agreement was made an order of the court and was thus a consent judgment.”*** 1. It is trite that such consent cannot constitute a legally enforceable agreement where there was no *consensus ad idem* and/or mutuality among the parties. Further, the said consent was never adopted as an order of the court, for it to be properly characterized as a consent judgment capable of attracting the effect ordinarily attendant thereto. 2. Upon re-evaluation of the evidence on record, as required of a first appellate court, this Court is satisfied that the trial court’s decision was based on the evidence before the Court and, there is, on the authorities, no basis to interfere with the findings of the trial court. **ORDERS** 1. Accordingly, for the reasons set out above, the Court finds that the appeal has no merit and it is dismissed. 2. There shall be no order as to costs in this succession matter. *Order accordingly.* **DATED AND DELIVERED THIS 23RD DAY OF JULY 2026.** **EDWARD M. MURIITHI** **JUDGE** **APPEARANCES:** Mr. Heyi for 1st Appellant. The 2nd Appellant in person. Mr. Ngigi for 1st Respondent. N/A for the 2nd Respondent.