Josphat v Muguna (Civil Appeal E012 of 2024) [2026] KEHC 5833 (KLR) (28 April 2026) (Judgment)

REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT MERU CIVIL APPEAL NO. E012 OF 2024 GLADYS GATABI JOSPHAT………………………………………..APPELLANT VERSUS ANNE KARIMI MUGUNA………………...……………………… RESPONDENT (Being an Appeal from the Judgement of Hon. T.A.Sitati (SPM) delivered on 28th June,2024 in Githongo CM Succession cause No. 54 of 2019) JUDGEMENT 1. This appeal arises out of the Judgement from a protest filed by the Respondent dated 31st August,2022 against the summons for confirmation of grant dated 17th September 2021. Background. 2. The succession cause in the lower court relates to the estate of the late Damiano Murugu M’Mugwika. According to the Meru Family Appeal No. E012 of 2024 Page 1 of 16 petitioner and the death certificate on record, the deceased passed away on 18th June 2015, aged 70 years. A letter dated 28th November, 2018 from the Deputy County Commissioner in Meru Sub County, indicates that the deceased was unmarried and survived by only one child. i.e. Josphat Njuki. 3. According to the petitioner the estate of the deceased comprised a single asset, namely ; “1.4 acres in Abothuguchi/Kiija/189 to be held by Gladys Gatabi Kiambi and Ann Karimi Muguna share of Damiano Murugu Mugwika to be held in trust by the Adminstrator until they file a succession cause in respect of the estate of Damiano Murugu M’Mugwika.” 4. In her summons for confirmation of the grant, the appellant proposed that the estate of the deceased be shared as follows; a. 1 acre- Gladys Gatabi Kiambi b. 0.24 acre- Eunice Gaicugi c. 0.24 acre- Irene Gatwiri Meru Family Appeal No. E012 of 2024 Page 2 of 16 5. The proposed mode of distribution by the Petitioner/ Appellant was consented to by Eunice Gaicugi and Irene Gatwiri. 6. In the said affidavit of protest, the Respondent contended that she was the wife of the deceased’s son one Josphat Njuki Murugu having been married under the Kimeru Customary Law, and they were blessed with two children. 7. She asserted that the Appellant refused to acknowledge her as Josphat Njuki’s wife despite the area chief recognizing her as such and issuing her with a letter to that effect. 8. She further asserted that the High Court in Meru H.C. Succession Cause No. 700 of 2015 directed that the 1.48 acres should be shared equally between the Appellant and herself. 9. She thus proposed that; (a) 0.74 acres be allocated to the Appellant, Eunice Gaicugi and Irene Gatwiri; and (b)The remaining 0.74 acres be allocated to her and her children, Kelvin Koome and Carlos Mawira. Meru Family Appeal No. E012 of 2024 Page 3 of 16 10. The said protest proceeded for hearing and in its Judgement, the trial court found that both the Appellant and the Respondent were wives to the late Josphat Njuki by dint of the consent recorded by the parties herein in the aforementioned High Court matter and proceeded to share the estate’s asset i.e. ABOTHUGUCHI/KIIJA/ 189 equally between the parties herein and their children with the widows being counted as extra units. 11. Being aggrieved by the said determination, the Appellant preferred this Appeal raising the following grounds of appeal: - a) That the Learned Senior Principal Magistrate erred in law and fact by arriving at a finding that High Court of Kenya at Meru Succession Cause No. 700 of 2015 had decided on who were the widows to JOSPHAT NJUKI DAMIANO yet the court had not done so. b) That the Learned Senior Principal Magistrate erred in law and fact in arriving at a finding that this matter was res judicata yet the parties had never been heard nor their rights determined. Meru Family Appeal No. E012 of 2024 Page 4 of 16 c) That the Learned Senior Principal Magistrate erred in law and fact by finding that Carlos Mawira was a son of the late Josphat Njuki Murugu yet no evidence was adduced to that effect not even a birth certificate. d) That the Learned Senior Principal Magistrate erred in law and fact by misinterpreting the evidence of PW3 Samson Kiambi contrary to his evidence pertaining whom the deceased was living with in Meru town. e) That the Learned Senior Principal Magistrate erred in law and fact by finding that Anne Karimi Muguna was a widow to one Josphat Njuki Murugu by virtue of cohabitation yet no evidence was adduced that they were cohabiting. f) That the Learned Senior Principal Magistrate erred in law and fact by relying on speculations and conjectures in the Judgement. g) That the Learned Senior Principal Magistrate made a finding outside the weight of the pleadings and evidence. Meru Family Appeal No. E012 of 2024 Page 5 of 16 12. The Appellant thus prayed that the impugned judgement be set aside and summons for confirmation be allowed with costs. 13. The Appeal was canvassed through written submissions. Appellant’s Submissions 14. The Appellant submitted that there was no cogent evidence advanced to prove that the Respondent and her son Carlos Mawira were the wife and son of the Late Josphat Njuki respectively. 15. She argued that the issue of whether the Respondent was a wife of Josphat Njuki was not subject of determination before the High Court in Succession cause no. 700 of 2015. She asserted that the court in this case categorically stated that the issue of who was the widow or not of Josphat Njuki should be determined in a different succession cause. 16. The Appellant urged this court to allow her appeal. Respondent’s Submissions 17. Regarding the contention that she was not a widow of Josphat Njuki, the Respondent stated that the issue was settled by parties’ consent which was recorded in the Meru Family Appeal No. E012 of 2024 Page 6 of 16 aforementioned High Court matter and the evidence on record which demonstrated she was a wife of the late Josphat Njuki under the doctrine of presumption of marriage. 18. On the issue of whether Carlos Mawira was a son of Josphat Njuki, the Respondent submitted that the Chief’s testimony corroborated by the letter he produced in evidence, cogently proved that Carlos Mawira was indeed the son of Josphat Njuki. She further contended that the said letter having been produced without objection, this issue ought not to arise in this appeal. 19. The respondent argued that she proved her case on a balance of probabilities and urged this court uphold the decision of the trial court and dismiss the Appeal with costs to her. Analysis and Determination. 20. This being the first appellate court, its duty is well expressed in Selle vs. Associated Motor Boat Co [1986] EA 123 where court held as follows: - “The appellate court is not bound necessarily to accept the findings of fact by the court below. An Meru Family Appeal No. E012 of 2024 Page 7 of 16 appeal from the trial court by the high court is by way of a retrial and the principles upon which the Court of Appeal acts are that the court must reconsider the evidence, evaluate it itself and draw its own conclusions through it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect in particular the court is not bound necessarily to follow the trial judge’s findings of fact if it appears either that he has clearly failed on some point to take account of particular circumstances or probabilities materially to estimate the evidence or if the impression based on the demeanour of a witness is inconsistent with the evidence in the case generally.” 21. The Court of Appeal in Ephantus Mwangi and Another vs. Duncan Mwangi Civil Appeal No. 77 of 1982 [1982- 1988] 1KAR 278 also dealt with the same issue. It held that: Meru Family Appeal No. E012 of 2024 Page 8 of 16 “A member of an appellate court is not bound to accept the learned Judge’s findings of fact if it appears either that (a) he has clearly failed on some point to take account of particular circumstances or probabilities material to an estimate of the evidence, or (b) if the impression based on the demeanour of a witness is inconsistent with the evidence in the case generally.” 22. The same court observed in Kiruga vs Kiruga & Another [1988] KLR 348, that: - “An appeal court cannot properly substitute its own actual finding for that of a trial court unless there is no evidence to support the finding or unless the judge can be said to be plainly wrong. An appellate court has jurisdiction to review the evidence in order to determine whether the conclusion reached upon that evidence should stand.” Meru Family Appeal No. E012 of 2024 Page 9 of 16 23. With the above principles in mind, I will now proceed to deal with this appeal. The core issues for determination are: - a) Whether the deceased had any property to be distributed. b) Whether the court erred in its finding? c) What order should the Court make as regards the appeal herein. 24. The Appellant petitioned for letters of administration intestate in her capacity as the “daughter in law” of the deceased and listed herself and her aforementioned two children as the only beneficiaries of the deceased’s estate. 25. The Respondent also claimed to have been a wife of Josphat Njuki and averred that she and the deceased were blessed with two children. i.e. Kelvin Koome and Carlos Mawira. 26. Considering that the Appellant did not also acknowledge the Respondent and her children as beneficiaries of the deceased estate in her summons for confirmation of grant, the Respondent lodged a protest against the same, which was determined in her favour. Meru Family Appeal No. E012 of 2024 Page 10 of 16 27. The trial court in allowing the protest held that the issue of whether the Respondent was a wife of Josphat Njuki had been settled by the parties’ consent recorded in High Court Succession Cause No. 700 of 2015 and was therefore res judicata. The court further found that the Respondent had established that she was married to the late Josphat Njuki under the doctrine of presumption of marriage. 28. I have looked at the court record in Succession Cause No. 700 of 2015. The cause related to the estate of M’Mugwika M’Ikibitu, who was the father to the deceased in this cause. 29. The parties herein are alleged widows of Josephat Njuki, who a son to the deceased herein. The deceased herein was a son to the said M’mugwika M’Ikibitu. Therefore, Josephat Njuki was a grandson to the said M’Mugwika M’Ikibitu. 30. It is important to note that the said M’mugwika M’Ikibitu,was the registered proprietor of the only property that is the subject of this cause and appeal. 31. In its orders of 4th May 2018, this Court, in the said Succession Cause No. 700 of 2015, directed as follows; Meru Family Appeal No. E012 of 2024 Page 11 of 16 “It is agreed that the portion of LR No. Abothoguci/Kijia/189 belonging to Damiano M’Mugwika is known and marked on the ground. The said portion is to held I trust for the children and wife and/or wives of Josephat Njuki pending Gladys Gatabi Kiambi and the alleged co-wife filing succession cause to the estate of Josephat Njuki, grandson to the deceased herein.” 32. It is clear that the court asked the parties to deal with the estate of Josephat Njuki, but instead of proceeding as directed , the parties filed a succession cause in respect to the estate of Domiano M’Mugwika. The said deceased was not registered as the owner of the property in question as he was just a beneficiary. The land still bore the name of M’mugwika M’Ikibitu. At the time the orders of the court were issued the said Damiano was also deceased. 33. The correct interpretation of the Law of Succession Act is that in that event any child of the deceased predeceases him, the grandchildren of the deceased shall step into the Meru Family Appeal No. E012 of 2024 Page 12 of 16 shoes of their dead parent, to take the share that ought to have gone to such dead parent. 34. This position was reiterated in Re Estate of Veronica Njoki Wakagoto (Deceased) [2013] eKLR, where it was held that: “Under Part V, grandchildren have no right to inherit their grandparents who die intestate after 1st July 1981. The argument is that such grandchildren should inherit from their own parents. This means that the grandchildren can only inherit their grandparents’ indirectly through their own parents, the children of the deceased. The children inherit first and thereafter grandchildren inherit from the children. The only time grandchildren inherit directly from their grandparents is when the grandchildren’s own parents are dead. The grandchildren step into the shoes of their parents and take directly the share that ought to have gone to the said parents.” Meru Family Appeal No. E012 of 2024 Page 13 of 16 35. The above position was also spelt out by the Court of Appeal in Christine Wangari Gachenge vs. Elizabeth Wanjiru Evans & 11 Others [2014] eKLR where it stated that: “Although Section 35 and 38 of the Law of Succession Act is silent on the fate of surviving grandchildren whose parents predeceased the deceased, the rate of substitution of a grandchild for his/her parent in all cases of intestate known as the principle of representation is applicable. The law is on section 41. If a child of the intestate has predeceased the intestate, then that child’s issue alive or en ventre sa mere on that date of the intestate’s death will take in equal share per stirpes contingent on attaining the age of majority. Per stirpes means that the issue of a deceased child of the intestate take between them the share their parents would have taken had the parent been alive at the intestate’s death.” Meru Family Appeal No. E012 of 2024 Page 14 of 16 36. In my view the said Damiano had no property vested in him that could form the estate set out in the petition. Once he passed on, his share passed to his child/children. In this case, the share went to Josephat Njuki, who is said to have been his only child, and since he too died before his share had crystallized, then the property passed to his children. 37. Therefore, the cause before the court in Githongo was an exercise in futility, as Damiano had no property to his name. His share in the estate of M’Mugwika M’Ikibitu had passed on to his child upon his death. Upon that child’s own death then the property passed to the child of that child. 38. I am therefore of the finding that the proceedings before Githongo Court, ought to be set aside. 39. That said I do not see the need to delve into the other issues raised as that may occasion prejudice to the parties once they move the court properly, as directed by this Court. 40. The following orders do thus issue; a) The judgment of the lower court is set aside entirely. Meru Family Appeal No. E012 of 2024 Page 15 of 16 b) An order is issued to the effect that the deceased herein had no property capable of being litigated upon as the same was still in the name of M’Mugwika M’Ikibitu (deceased). c) There shall be no orders as to costs on this appeal. Dated, signed and delivered at Meru this 28th day of April, 2026. H.M. NYAGA JUDGE Meru Family Appeal No. E012 of 2024 Page 16 of 16