Mwangangi v Timothy & 2 others (Succession Appeal E007 of 2023) [2026] KEHC 9510 (KLR) (25 June 2026) (Judgment)

**** **REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT MACHAKOS** **SUCCESSION APPEAL NO. E007 OF 2023** **GABRIEL KIMEU MWANGANGI ……………………...APPELLANT** **VERSUS** **MWANGANGI TIMOTHY ……………………….....1ST RESPONDENT** **JOHNBOSCO MAINGI MWANGANGI ……..........2ND RESPONDENT** **MICHAEL NDOLO MWANGANGI ……………….3RD RESPONDENT** (Being an appeal from the Ruling of Hon. Martha Opanga (CM) of in Kangundo Chief Magistrate’s Court Succession Cause No. 114 of 2019 delivered on 25th May 2023) **JUDGMENT** 1. This appeal impugns the ruling, of the court below, dated 25th May 2023, which dismissed the protest, filed by the Appellant herein, to the mode of distribution proposed by the Administrators of this estate via the Summons for Confirmation of grant dated 12th February 2021. 2. It is instructive that therefore, the beneficiaries of the estate had gone for court Annexed Mediation and had reached a partial agreement in regard to the following assets of the estate: 3. **Kangundo/Kikambuani/1354** 4. **Kangundo/Kikambuani/1359** 5. **Kangundo/Muisuni/2281** 6. **Kangundo/Muisuni/2238** 7. **Share No. 1005 Drumville Co-operative Society** 8. **Yatta shamba measuring 47 acres.** The partial agreement was recorded in court and adopted. 1. The Appellant together with Michael Ndolo Mwangangi were aggrieved by the manner the Administrator proposed to distribute LR No. Kangundo/Kikambuani/1354 – 0.7 hectares which was to be registered in his name to hold in trust for himself and the first house. The deceased had two wives and the appellant was a child in the first house. 2. The appellant was also aggrieved by the proposed mode of distribution of LR No. Yatta/Mathingau/1105 which according to the Administrator was to be divided equally between the two houses with the share due to the 1st house being registered in the name of Mwangangi Timothy in trust for himself and the rest of his siblings in the first house including the appellant. His protest in regard to the distribution of LR No. Yatta/Mathingau/1105 was that it was where he had built a permanent house and settled his family and bringing in more people to the property would displace him. He proposed that the property should be shared so that he gets half the land and the other half be shared between the two houses equally. He was willing to forfeit whatever other share was allotted to him in the other properties. He also alleged to have been left on that land by his father. 3. The learned magistrate did not agree with the Protestors and so she dismissed the protest and proceeded to confirm the grant in the mode of distribution proposed by the Administrator. 4. Being aggrieved, the Appellant moved to this court. The grounds of Appeal are: “(**1)** **The learned Magistrate erred in law and in fact by failing to find that the proposed mode of distribution by the Administrators did not distribute the estate of the deceased equally in accordance with the provisions of the Law of Succession.** **(2) The learned Magistrate erred in law and in fact by failing to consider that the mode of distribution would displace the appellant from the property Yatta/Mathingau/1105 where he has built a permanent house.** **(3) The learned Magistrate erred in law and in fact in holding that the deceased had shared out his assets during his lifetime and captured his preferred mode of distribution in writing.** **(4) The learned Magistrate erred in law and in fact by relying on the document containing the wishes of the deceased which were written in Kamba language without having the same translated.** **(5) The learned Magistrate erred in law by failing to apply the rules of evidence.** **(6) The learned Magistrate erred in law by failing to consider the appellant’s protest and submissions.** **(7) All in all the learned Magistrate so misdirected herself on matters of both law and fact as to occasion a miscarriage of justice against the Appellant.”** 1. On 7th July 2025 this court directed that the appeal would be heard by way of written submissions but we only received those of the 1st and 2nd Respondents. **Analysis and determination** 1. As a first appellate court I am enjoined to reconsider and evaluate the evidence in the court below so as to arrive at my own independent findings while keeping in mind that I did not see or hear the witnesses. I have also considered the grounds of appeal, the submissions on record, the cases cited and the law. 2. The first grievance by the Appellant is that the estate was not shared equally; that the learned magistrate erred in holding that the deceased had shared out his assets during his lifetime and recorded it in writing; that the said record which was written in Kikamba was not translated into English. Further that the learned magistrate failed to consider that the mode of distribution would displace him from LR No. Yatta/Mathingau/1105 where he has built his permanent house. I notice that the issue of LR No. Kangundo/Kikambuani/1373 which formed the substratum of the protest was not raised in this appeal. 3. The submissions filed by the 3rd Respondent did not address itself to the issues raised by the appellant. They appear to me to be a cross appeal but there is no cross appeal. The same raise issues regarding properties whose distribution was agreed through the mediation and which cannot be addressed in the absence of an appeal by the 3rd respondent. Moreover, issues raised in the submissions should have been raised in the court below. 4. Be that as it may, I have considered this appeal carefully and in my considered view the claim that the appellant is entitled to half of LR Yatta/Mathingau/1105 is not merited. In the court below, the protest was heard by way of affidavits and written submissions. Other than stating that he had lived on the land for 30 years and built a permanent house, the appellant did not give a credible reason for claiming half of this property. He who alleges must prove. It cannot be that the appellant discredited the evidence of the wishes of the deceased adduced by the administrator, while he himself was riding on the claim that he was settled on the land by his father. The property in question is big and he shall still get his due share even if he shares it with his own siblings and those in the second house. The deceased being polygamous it was only fair and just that the property was distributed as was done by the learned magistrate. This is more so as the deceased having expressed his wishes so succinctly albeit not by way of a valid will. My so saying finds support in the judgment of Mativo J, as he then was, in the case of In **Re Estate of Cyrus Mucira Karuri (deceased) [2019] eKLR** where he stated: ***“The contention by the applicant that the deceased had not made a will and died intestate is indeed true. The protestor is not relying on a will but is stating that though the deceased died intestate, he had made his wishes known to all those concerned including the applicant. Section 42 is clear that a deceased is free to distribute his properties during his lifetime and such distribution will not be disrupted by the court but will be respected.”*** 1. Similarly, in the case of **Paul Kiruhi Nyingi & Another v Francis Wanjohi Nyingi [2009] eKLR** Makhandia J, as he then was, stated: “***Unless it can be demonstrated that those wishes of the deceased as captured in the black book were illegal, unfair, discriminatory and unjust to the beneficiaries or some of them, such wishes ought to be respected in my view. Nothing has been brought to my attention that remotely suggests that the deceased was biased, unfair and or discriminatory against any of the beneficiaries in the manner he wanted his estate shared out on his demise. In any event, it would appear that some of the beneficiaries were aware of the contents of the black book during the deceased’s lifetime. If they were deschanted with the distribution they should have taken it up with him.”*** 1. Further, in the case of **Martha Wanjiku Waweru v Mary Wambui Waweru [2007]** **KEHC 1655 (KLR)** Onyancha, J observed: ***“In this case the deceased had in his lifetime distributed his estate as he wished. He had power to do so. His family members did not protest or change his mode of distribution which they had opportunity to do during his lifetime. He fixed clear physical boundaries which no one interfered with at any stage even after his death. In my view his wishes should have been respected ………”.*** 1. Contrary to the assertion by the Appellant, the book relied upon by the Administrators to distribute the estate, was translated in English. There was a dispute as to whether the contents were authored by the deceased but those who impeached its validity did not adduce evidence to prove it was not authored by the deceased. It is trite that he who alleges must prove and in the absence of such proof the court must find the book was authored by the deceased. 2. The upshot is that this appeal has no merit and it is dismissed with costs to the respondents. The judgment of the court below is upheld. Orders accordingly. **Judgment signed, dated and delivered virtually through Microsoft teams on this 25th day of June, 2026.** **E. N. MAINA** **JUDGE** **In the presence of:** Ms Kioko for 1st & 2nd Respondents No party (self-represented) No appearance for S. N. Thuku for the Appellant Catherine - Court Assistant/Interpreter