[2022] KEHC 15070 (KLR)

Geoffrey & another v M’buri (Civil Appeal E015 of 2020) [2022] KEHC 15070 (KLR) (3 November 2022) (Judgment)

Neutral citation: [2022] KEHC 15070 (KLR)

Republic of Kenya

In the High Court at Chuka

Civil Appeal E015 of 2020

LW Gitari, J

November 3, 2022

Between

Raphael Murungi Geoffrey

1st Appellant

Elias Mutegi M’Buri

2nd Appellant

and

Kenneth Micheni M’buri (Legal Rep. of the Estate of Geoffrey M’mbuuri Magiri alias Buuri Magiri alias Mburi Magiri – Deceased)

Respondent

Judgment

1. This appeal relates to the distribution of the estate of Geoffrey M’Buuri Magiri alias Buuri Magiri alias Mburi Magiri (deceased) who died intestate on February 14, 1997. A grant of letters of administration was issued to the respondent in Chuka CMC Succession Cause No 168 of 2017. The respondent consequently applied for confirmation of the grant through the summons application dated June 13, 2019.

2. Vide the affidavit of protest sworn by the 1st appellant on September 17, 2019, the appellants herein raised their protests against the mode of distribution proposed by the respondent. The parties then opted to rely on their pleadings and by a ruling delivered on January 15, 2020 by the learned chief magistrate the said protest was dismissed and the grant was confirmed as prayed by the respondent.

3. This appeal is against the said ruling. The appellants have raised 19 grounds in support of their appeal as contained in the memorandum of appeal dated December 8, 2020. These are:-1. The learned trial chief magistrate erred in law and fact in holding that he had agreed with the respondent’s distribution of the deceased’s estate without taking into account the proposal made by the appellants.2. The learned chief magistrate erred in law and fact in holding that majority of the beneficiaries had agreed with the respondent’s distribution of the deceased’s estate without taking into consideration whey the appellants had not signed the consent to the mode of distribution and the serious pertinent issues raised by the appellants particularly in paragraph 5(i) to 5(viii) of the affidavit of protest.3. The learned chief magistrate erred in law and fact in agreeing with the respondent’s allegations that the deceased had sat down the beneficiaries prior to the deceased’s death whereas there was no oral or documentary evidence to come to such conclusion.4. The learned chief magistrate erred in law and fact in entirely relying on the replying affidavit in response to the appellants’ affidavit of protest and completely ignored the issues raised in the affidavit of protest by the appellants.5. The learned chief magistrate erred in law and fact in not considering and/or ignoring the distribution proposed by the appellants in their affidavit of protest.6. The learned chief magistrate erred in law and fact in not considering that the distribution proposed by the appellants from the portions they occupy in Land Parcel No Mwimbi/murugi/520 where they (appellants) have constructed permanent buildings/homesteads and have occupied and lived all heir lives with their families.7. The learned chief magistrate erred in law and fact in holding that all the beneficiaries have been accommodated on specific portions where they have built so as to avoid losses whereas in actual fact, the appellants who have built their homes in Land Parcel Nomwimbi/murugi/520 were not getting any share of the said land as clearly demonstrated by the respondent’s distribution of the deceased’s estate.8. The learned chief magistrate erred in law and fact in not making a finding that land parcel No Mwimbi/chogoria/367 which had been distributed to the appellants is landlocked with no road of access which would in event affect the sharing of the said land9. The learned chief magistrate erred in law and fact in holding that the respondent has accommodated and provided the shares to be inherited by the protestors (appellants) without considering the unequal manner in which the respondent distributed the deceased’s estate.10. The learned chief magistrate in law and fact in failing to make a finding that the distribution proposed by the respondent was discriminatory against the appellants.11. The learned chief magistrate erred in law and fact in failing to make a finding that the respondent distributed the deceased’s estate inform of shares without disclosing the acreage each of the beneficiary is entitled to so as to conceal the correct amount of acreage in respect each of the deceased’s parcel of land.12. The learned chief magistrate erred in law and fact in holding the appellants had not challenged the fact that the deceased had during his life time pronounced himself as to how he wished the beneficiaries and each shown the specific portion whereas in actual fact, there was no oral or written Will and/or evidence to support such a finding.13. The learned chief magistrate erred in law and fact in holding that majority of the beneficiaries were in agreement with the petitioner’s proposal yet the appellants had raised their dissatisfaction of unequal distribution of the deceased’s estate even if they were only the two (2) of them.14. The learned chief magistrate erred in law and fact in not considering that the proposed mode of distribution by the appellants was the most equitable.15. The learned chief magistrate erred in law and fact in holding that all the beneficiaries had been allocated almost equal shares in sizes whereas it was not true.16. The learned chief magistrate erred in law and fact by wrongly interpreting the provisions of section 39 of the Law of Succession Act, cap 160 Laws of Kenya and thus ended up in arriving at the wrong decision and ruling.17. The learned chief magistrate erred in law and fact in holding that the respondent had equitably divided the deceased’s properties among the widow, sons and daughters whereas it was not correct.18. The learned chief magistrate erred in law and fact in upholding the application for summons for confirmation of grant dated June 13, 2019 and in dismissing the appellants’ protest without considering all the issues raised by the appellants in their affidavit of protest.19. The learned chief magistrate decision and ruling is against the law and the weight of evidence (affidavits) tendered in court.The appellant prays that:-a.The appeal to be allowed.b.An order that all the deceased’s land parcels Nos LR Mwimbi/Murugi/1055, LR Mwimbi/Chogoria/367, and LR Mwimbi/Murugi/520 be ascertained in acreage taking into account the roads of access, the topography of the said parcels of land and the deceased’s estate to be shared equally among all the beneficiaries.c.An order for the distribution of the deceased’s estate equally taking into account the specific portions the appellants and/or any other beneficiary has constructed his home.d.Cost of this appeal and in the trial court.

4. The appeal was canvassed by way of written submissions. Through their counsel on record, the appellants and the respondent filed their written submissions on March 3, 2022 and July 12, 2022 respectively. Below is a summary of their respective cases.

The appellants’ Submissions 5. The appellants submitted that their protest to the respondent’s proposed mode of distribution of the subject estate raised pertinent issues which if the lower court had considered, it would not have dismissed the said protest. First, the appellants faulted the lower court for failing to take into account that the appellants had permanent houses on land parcel No LR Mwimbi/Murugi/520. They submitted that the mode of distribution of confirmed by the lower court denied them a share of land parcel No LR Mwimbi/Murugi/520 in which they alleged to have lived in all their lives.

6. In addition, the appellants faulted the trial court for not addressing the issue that land parcel No LR Mwimbi/Chogoria/367 was not arable and had no access to a road. They further faulted the trial magistrate for confirming the grant based on the mode of distribution consented by a majority of the beneficiaries (11 out of 13) and failing to address the issues raised by the appellants.

7. The appellants’ refuted the respondent’s contention that the deceased had demanded the appellants to re-locate from where they were residing and submitted that there was no evidence to buttress this position. In any case, they maintained that the deceased died intestate and as such the rules of intestacy were applicable to this estate.

8. The appellants further contends that the respondent’s proposed mode of distribution was inequitable as allegedly evident from the respondent’s failure to disclose the specific acreage that each of the beneficiaries was to be allocated. It was thus their submission that the most and equitable mode of distribution was for all the land parcels comprising the deceased estate to each be shared equally among all the beneficiaries. They maintained that the respondent’s allegation it would be uneconomical for all the beneficiaries to get equal shares of all the parcels of lands in the subject estate was baseless.

9. In conclusion, the appellant urged this court to reevaluate the evidence placed before the trial court as well as the ruling made by the said court and find that this appeal is merited.

Respondent’s Submissions 10. On his part, the respondent’s submitted that the mode of distribution of the deceased’s estate as proposed by the appellants in their affidavit of protest filed in the lower court was not tenable in law because the deceased left behind 13 (thirteen) beneficiaries who, in his view, could not be accommodated on the subject estate as proposed by the appellant. Further, the respondent submitted that the appellants failed to tender any documentary evidence to support their allegation some parts of the subject estate were not arable, were land locked and were of no economic value. The respondent thus submitted that the lower court did not misdirect itself in dismissing the appellant’s Protest and upholding the mode of distribution proposed by the respondent. He therefore prayed for the dismissal of the appeal.

Analysis 11. The main issue for determination is whether the mode of distribution the deceased’s estate, as proposed by the respondent and confirmed by the lower court, was backed by law. To determine this, the following issues arise:a.Which are assets comprising the deceased’s estateb.Who are the beneficiaries of the subject estatec.Which mode of distribution is applicable to the estate

12. The role of this court as the first appellate court is stated in many authorities. In Kiilu and another v R (2005) 1 KLR 174 the court held as follows:“an appellant in a 1st appeal is entitled to expect the whole evidence as a whole to be submitted to a fresh and exhaustive examination and to the appellate court's own decision in the evidence. The 1st appellate court must itself weigh conflicting evidence and draw its own conclusions.”

13. Hereunder is a review of the evidence presented before the lower court and an analysis of the issues raised by the appellants in light of the applicable laws.

Identified assets forming the estate 14. It is not disputed that the deceased left behind the following known assets:a.Mwimbi/Murugi/1055 – 2. 524 Hab.Mwimbi/Chogoria/367 – 1. 42 Hac.Mwimbi/Murugi/520 – 2. 02 Ha

Identified beneficiaries 15. It is also not disputed that the deceased was survived by:a.Philis Keeru Geoffrey - Widowb.Raphael Murungi Geoffrey - Sonc.Elias Mutegi M’Buri - Sond.Watson Kithuci M’Buri - Sone.Anderson Mugambi M’Buri - Sonf.Edwin Murithi M’Buri - Song.George Njagi Geoffrey - Sonh.Kenneth Micheni M’Buri - Soni.William Geoffrey Kithinji – Sonj.Harriet Wanja M’Buri - Daughterk.Jane Karimi Mugambi – Daughterl.Winfred Kaari Kiogora - Daughterm.Alice Njeri Geoffrey – Daughter

The mode of distribution 16. section 34 of the Law of Succession Act provides:-“A person is deemed to die intestate in respect of all his life property of which he has not made any will which is capable of taking effect.”There was no prove that the deceased had made an oral will. No cogent evidence was adduced. This is not helped by the fact that those alleging that there was an oral will proceeded and filed intestate succession.

17. From the record and evidence as a whole, the deceased died intestate as he did not leave a valid will. As such, the rules of intestacy as governed by the Law of Succession Act, cap 160 of the Laws of Kenya (the “Act”) are applicable to the distribution of the properties forming this estate. Specifically, the relevant applicable provision in the distribution of this estate is section 35 of the act given that the deceased left behind a spouse and 13 children. Section 35(1) of the act states as follows:“(1)Subject to the provisions of section 40, where an intestate has left one surviving spouse and a child or children, the surviving spouse shall be entitled to—(a)the personal and household effects of the deceased absolutely; and(b)a life interest in the whole residue of the net intestate estate:Provided that, if the surviving spouse is a widow, that interest shall determine upon her re-marriage to any person.”

18. In this regard, the appellant took issue with the trial court’s reliance on section 39 of the act in arriving at its finding. This was indeed erroneous. section 39 of the act applies where the deceased has left no surviving spouse or children. As stated hereinabove, the applicable law in the distribution of the subject estate is section 35 of the act which applies to distribution of a deceased’s estate where the deceased is survived by a spouse and children, as is the case in this cause. In intestate succession under the section and from other provision under the Act equal distribution of the estate to all the beneficiaries is advocated unless the parties agree otherwise. Furthermore article 27(1) and (2) of the Constitution outlaws any form discrimination and provides that every person is equal before the law and enjoys equal protection and equal benefit of the law. Distribution of the estate of the deceased which discriminates some beneficiaries in any way is not only irregular but is also unlawful.

19. As to the mode of distribution, the respondent in his affidavit in support of the summons for confirmation of grant dated June 13, 2019, proposed under paragraph 7 that the deceased’s estate be distributed as follows:a.Mwimbi/Murugi/1055i.Watson Kithuci M’Buri to get 1/3 shareii.Edwin Murithi M’Buri to get 1/3 shareiii.William Geoffrey Kithinji to get 1/3 shareb.Mwimbi/Chogoria/367i.Raphael Murungi Geoffrey to get ½ shareii.Elias Mutegi M’Buri to get ½ sharec.Mwimbi/Murugi/520i.George Njagi Geoffrey to get ¼ shareii.Anderson Mugambi M’Buri to get ¼ shareiii.Kenneth Micheni M’Buri to get ½ share and to hold in trust for himself and for the benefit of Philis Keeru Geoffrey, Harriet Wanja M’Buri, Jane Karimi Mugambi, Winfred Kaari Kiogora, Alice Njeri Geoffrey.

20. The appellants have taken issue with the equality of the distribution in terms of the actual acreage and value of the respective shares allocated to the beneficiaries. The spirit of section 35 of the act is equal distribution of an intestate estate amongst the children of the deceased. W Musyoka J in Re Estate of John Musambayi Katumanga – deceased [2014] eKLR expressed himself as follows on this:“The spirit of part v, especially sections 35, 38 and 40, is equal distribution, of the intestate estate amongst the children of the deceased. There have been debates on whether the distribution should be equal or equitable. My reading of these provisions is that they envisage equal distribution for the word used in sections 35(5) and 38 is ‘equally’ as opposed to ‘equitably’. This is the plain language of the provisions. The provisions are in mandatory terms – the property “shall … be equally divided among the surviving children.”

21. In this case, the land searches on record show that the three parcels of land forming the subject estate measure as indicated in paragraph 16 above. It follows, therefore, that the specific shares as distributed to the beneficiaries as per the grant confirmed by the lower court is as indicated hereunder:a.Mwimbi/Murugi/1055 – 2. 524 Hai.Watson Kithuci M’Buri - 0. 8413 Haii.Edwin Murithi M’Buri - 0. 8413 Haiii.William Geoffrey Kithinji - 0. 8413 Hab.Mwimbi/Chogoria/367 – 1. 42 Hai.Raphael Murungi Geoffrey – 0. 71 Haii.Elias Mutegi M’Buri – 0. 71 Hac.Mwimbi/Murugi/520 – 2. 02 Hai.George Njagi Geoffrey – 0. 505 Haii.Anderson Mugambi M’Buri – 0. 505 Haiii.Kenneth Micheni M’Buri to get 1. 01 Ha and to hold in trust for himself and for the benefit of Philis Keeru Geoffrey, Harriet Wanja M’Buri, Jane Karimi Mugambi, Winfred Kaari Kiogora, Alice Njeri Geoffrey.

22. From the above, it is true as submitted by the appellants that the beneficiaries would not end up with exact equal shares of the estate. However, the lower court did acknowledge this fact and stated that the allocated shares were almost equal in sizes. In my view, that was a fair observation, safe for the other contentions by the parties and particularly the appellants as I will analyse which the learned trial magistrate did not consider.

23. The appellants further contention is that LR Mwimbi/Chogoria/367, which the respondent proposed that the appellants be given, was not arable land hence not as valuable as the other parcels of land forming the estate. There was no proof to ascertain whether the estate had developed assets and even if there was, there was no evidence to prove who the assets belonged to. Without such evidence, it would obviously be difficult for any court to distribute such an estate with mathematical precision as to the portions of shares to give to which beneficiary.

24. The appellants further raised issue with the fact that the respondent did not distribute any land to the deceased’s widow and daughter. He instead distributed half of land parcel No Mwimbi/Murugi/520 – 2. 02 Ha to himself and to hold in trust for the widow and daughters of the deceased. On this issue, I note that there is a consent form on record that is signed by, inter alia, the widow and the daughters of the deceased. The consent is not challenged and it is therefore proof that the said widow and daughter of the deceased were agreeable to the mode of distribution of the estate that the respondent proposed.

25. In Justus Thiora Kiugu & 4 others v Joyce Nkatha Kiugu & another [2015] eKLR, the Court of appeal appreciated that an estate of a deceased person who died intestate leaving one spouse and children, like in this case, cannot legally be distributed in any other way other than the parties agreeing among themselves and filing a consent, or by the court following the provisions of section 35 of the act. The court in the said case expressed itself as follows:“In the event that parties agree and they record consent on the mode of distribution, the court has no choice but to adopt the consent and make it an order of the court. Short of a written consent on the mode of distribution, the court has no discretion but to distribute the estate of the deceased as per the provisions of section 35 of the Law of Succession Act which makes provisions for an intestate who has left one surviving spouse and child or children.”

26. In this case, the consent on distribution referred to hereinabove was endorsed by all beneficiaries save for the appellants herein. Guided by the binding of decision of the Court of appeal in Justus Thiora Kiugu’s case (supra), it follows that the lower court erred in considering a consensus by a majority of the beneficiaries as opposed to all the beneficiaries. There being no consensus of all the persons beneficially entitled, the court should have applied the law strictly.

27. The appellants finally allege that they had built permanent houses on land parcel No LR Mwimbi/Murugi/520 and that the confirmed grant would deny them a share of the said land. In Justus Thiora Kiugu’s case (supra), the Court of appeal noted that a random distribution is likely to misplace some members of the family who have settled and perhaps developed some assets that are distributed to others, which would fuel more conflicts within a family. It follows that a probate court, in distributing the estate of a deceased person, should be inclined to consider the developments on the ground and should as much as possible not disturb the occupation on parcels where permanent structures have been built.

28. In this case, the appellants contention of having permanent houses on LR Mwimbi/Murugi/520 was not denied by the respondent. However, the respondent alleged that the structures that the appellants were talking about were put up in defiance of an earlier agreement that the family members had reached on the distribution of the estate. There was however no evidence of any family meeting held in respect to the distribution of the subject estate. In addition, the respondent alluded to the fact that pending confirmation of the grant in the lower court, the appellant put up extra structures in an attempt to influence the allocation of the land in their favour. Again, no evidence was tendered to prove the contention that some structures were constructed during the pendency of this succession cause before the lower court.

29. In my view, the lower court merely observed that some beneficiaries had been accommodated on specific portions of the estate and had built structures without proper evidence to ascertain the same. Thus, its finding that the grant as confirmed would alleviate losses that would be occasioned by demolition of the existing structures on the estate was, in my view, not backed by evidence.

Conclusion 30. The upshot of the foregoing, is that the appeal is merited.I order as follows:-i.The appeal is allowedii.The ruling of the learned trial magistrate is set aside.iii.The district surveyor shall visit the land to ascertain the situation on the ground of the three parcels of land forming the estate of the deceased, and file a report within 30 days.iv.The estate shall then be distributed by this court.v.No orders as to costs.

DATED, SIGNED AND DELIVERED AT CHUKA THIS 3RD DAY OF NOVEMBER 2022. LW GITARIJUDGENovember 3, 2022The Judgment has been read out in open court.LW GITARIJUDGENovember 3, 2022