Mwathi v Karani (Succession Appeal E014 of 2024) [2026] KEHC 5002 (KLR) (17 April 2026) (Judgment)

REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NYERI HIGH COURT SUCCESSION APPEAL CASE NO. E014 OF 2024 GRACE GATHONI MWATHI…………….………….……… APPELLANT VERSUS ELIZABETH WANGU KARANI…………………….…… RESPONDENT JUDGEMENT 1. Before this Court is Memorandum of Appeal dated 25th July 2024 by which the Appellant GRACE GATHONI MWATHI seeks the following orders:- “(a) THAT the Appeal be allowed and the judgment of the subordinate court be set aside. (b) THAT costs of the Appeal be awarded to the Appellant.” 2. The Respondent ELIZABETH WANGU KARANI strenuously opposed the appeal. The matter was canvassed by way of written submissions. The Appellant filed the written High Court Succession Appeal Case No. E014 of 2014 JUDGEMENT Page 1 of 21 submissions dated 30th October 2025 whilst the Respondent relied upon her written submissions dated 3rd November 2025. BACKGROUND 3. The succession cause relates to the estate of the late JOHN KIRAGO GITAHO (hereinafter “the Deceased”) who died intestate on 28th April 2017. 4. Following the demise of the Deceased the Respondent Elizabeth Wangu Karani and her sister Lucian Nyawira sought and obtained a Grant of letters of Administration Intestate issued on 20th March 2018. Thereafter the Appellant Grace Gathoni filed a summons for revocation of Grant dated 11th June 2018. Vide a Ruling delivered on 27th November 2018 the first grant was revoked and a fresh grant was issued jointly to Elizabeth Wangu and Grace Gathoni. 5. On 25th August 2021 Grace Gathoni filed a Summons for Confirmation of Grant. Elizabeth Wangu filed a protest against the same. 6. The Appellant stated that she did not know the Respondent Elizabeth Wangu and stated that the Respondent and her Co- High Court Succession Appeal Case No. E014 of 2014 JUDGEMENT Page 2 of 21 Administrator Lucian Nyawira Muriithi were total strangers to the estate. The Appellant claimed that the grant was obtained fraudulently by concealment of material facts to wit that the Deceased left behind a widow and children as well as his father who were the ones legally entitled to administer and inherit the entire estate. 7. On her part the Respondent stated that she got married to the Deceased in the year 2006. That she came into the marriage with one child and that the couple bore another child together. The Respondent stated that she lived with the Deceased in Mihango. She concedes that the Appellant was her co-wife but states that in the year 2006 when the Deceased married her the Appellant was not in the home having earlier separated from the Deceased. She stated that the Deceased took care of and provided for herself and the two children. 8. The Protest was heard in the Lower Court by way of Vive Voce evidence. Vide the Ruling delivered on 28th July 2024 Hon. MATUTU Principal Magistrate dismissed the Protest finding that it had been proved that the Respondent was a wife of the Deceased. The trial court proceeded to confirm the Grant of High Court Succession Appeal Case No. E014 of 2014 JUDGEMENT Page 3 of 21 letters of Administration made to the Appellant and the Respondent on 27th November 2018 and gave directions on how the estate was to be distributed. 9. Being aggrieved by this ruling the Appellant filed this Memorandum of Appeal which is premised upon the following grounds:- “1. THE Learned Magistrate erred in law and fact in finding that Protestor was a wife to the deceased whereas no evidence was tendered before the court to ascertain this position. 2. THE Learned Magistrate erred in law and fact in finding that the Protestor and the deceased had a child whereas the birth certificate produced before the court was proved to be fraudulent and/or fake. 3. THE Learned Magistrate erred in law and fact in finding that the Protestor had purchased the Mihango Plot (LR No. 6845/1202) together with the deceased whereas the documents presented High Court Succession Appeal Case No. E014 of 2014 JUDGEMENT Page 4 of 21 by the Protestor to this court relate to different parcel of land. 4. THE Learned Magistrate erred in law and fact in finding that the Protestor had purchased the Parcel of land known as LR No. 6845/1202) together with the deceased yet she failed to explain as to why the Appellant was collecting rent from the time of purchase to date. 5. THE Learned Magistrate erred in law and fact in finding that the Mihango Plot did not form part of the Estate of the deceased yet the same was on the name of the deceased at the time of his death. 6. THE Learned Magistrate erred in law and fact in overlooking the fact that the Protestor had transferred the Land Parcel known as LR No. 6845/1202 after the death of the deceased without any orders from the court in an effort to defeat justice. High Court Succession Appeal Case No. E014 of 2014 JUDGEMENT Page 5 of 21 7. THE Learned Magistrate erred in law and fact in failing to appreciate the evidence before the court and erroneously referred to Parcels of land not forming part of the Estate thus delivering an ambiguous judgment. 8. THE Learned Magistrate erred in law and fact in disregarding all evidence that was tendered by the Appellant.” ANALYSIS AND DETERMINATION 10. I have carefully considered this appeal, the record filed on 5th march 2026 as well as the written submissions filed by both parties. 11. This is a first appeal and in this regard I take cognizance of the holding in Imanyara & 2 others v Attorney General [2016] KECA 557 (KLR) in which the Court of Appeal stated as follows:- This being a first appeal it is trite law, that this Court is not bound necessarily to accept the findings of fact High Court Succession Appeal Case No. E014 of 2014 JUDGEMENT Page 6 of 21 by the court below and that an appeal to this Court from a trial by the High Court is by way of retrial and the principles upon which this Court acts in such an appeal is are well settled. Briefly put, they are that this court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect. See Selle and Another v Associated Motor Boat Company Limited and others [1968] EA 123 and Williamson Diamonds Ltd. V. Brown [1970] E.A.L As we discharge our mandate of evaluating the evidence placed before the High Court, we keep in mind what the predecessor of this Court said in Peters -vs- Sunday Post Ltd [1958] EA 424. In its own words:- “Whilst an appellate court has jurisdiction to review the evidence to determine whether the conclusions of the trial judge should stand, this jurisdiction is exercised with caution; if there is High Court Succession Appeal Case No. E014 of 2014 JUDGEMENT Page 7 of 21 no evidence to support a particular conclusion, or if it is shown that the trial judge has failed to appreciate the weight or bearing of circumstances admitted or proved, or had plainly gone wrong, the appellate court will not hesitate so to decide…..” 12. It is not in dispute that the Deceased herein passed away on 28th April 2017. A copy of the Death certificate Serial Number 0652258 appears at page 6 of the Record of Appeal. The controversy in this matter relates to the identities of the beneficiaries to the estate. The Protestor herein claimed that she was a wife of the Deceased having been married by the Deceased in the year 2006. That she came into the marriage with one child and that she and Deceased were blessed with a son ‘V N’ born on January 2008. 13. On her part the Appellant denies all knowledge of the Protestor and High Court Succession Appeal Case No. E014 of 2014 JUDGEMENT Page 8 of 21 states that she only saw the protestor at the funeral of the Deceased. 14. It is trite law that he who alleges must prove. Section 107 (1) of the Evidence Act, Cap 80 Laws of Kenya provides that “107 (1) Whoever desires any court to give judgment as to any legal right on liability dependent on the existence of facts which he asserts must prove that those facts exist.” 15. Similarly Sections 109 and 112 of the same Act provide that: “109. The burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person. “112. In civil proceedings, when any fact is especially within the knowledge of any party to those proceedings, the burden of proving or disproving that fact is upon him.” High Court Succession Appeal Case No. E014 of 2014 JUDGEMENT Page 9 of 21 16. The Protestor having alleged that she was a wife of the Deceased has the obligation in law to prove this fact. The Protestor claims that she got married to the Deceased under Kikuyu Customary Law. Therefore she needed to prove that the cultural rites constituting to a Kikuyu Customary marriage were performed key being payment of dowry ‘Ruracio’ and the ‘Ngurario ceremony’. 17. In her evidence the Protestor made no mention of the payment of any dowry by the Deceased to her parents/family. It would also appear that no ngurario ceremony was conducted. 18. PW2 Elizabeth Wangu who was the Protestors mother told the court that she does not recall the year when her daughter got married. PW2 further stated that although she attended the burial of the Deceased she was not recognised at that funeral as an in-law. 19. PW3 John Kinyua is an elder brother to the Protestor. He too cannot High Court Succession Appeal Case No. E014 of 2014 JUDGEMENT Page 10 of 21 recall when the Protestor got married to the Deceased. PW2 and PW3 were both close relatives of the Protestor who would have been intimately involved in any marriage of the Protestor. Neither witness is able to state with clarity when the dowry was paid, how much was paid and/or when the customary marriage took place. Their evidence was sketchy at best. I find that the evidence on record falls short of proving the existence of a customary union between the Deceased and the Protestor. 20. The next question would be whether the evidence available is sufficient to establish a ‘presumption of marriage’. Presumption of marriage is a well settled common law principle that a long cohabitation of a man and a woman with the general reputation as man and wife raises a presumption of marriage. However this presumption is rebuttable. 21. Section 119 of the Evidence Act provides as follows:- “The court may presume the existence of any fact which it thinks likely to have happened, High Court Succession Appeal Case No. E014 of 2014 JUDGEMENT Page 11 of 21 regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case.” 22. According to Halsbury’s Laws of England, Matrimonial and Civil Partnership Law (Volume 72) 5th Edition 2015: “Where a man and a woman have cohabited for such a length of time, in such circumstances, as to have acquired the reputation of being man and wife, a lawful marriage between them will be presumed even if there is no prior evidence of any marriage ceremony having taken place, particularly where the relevant facts have occurred outside the jurisdiction and this presumption can be rebutted only by strong and weighty evidence to the contrary.” 23. Section 2 of the Marriage Act defines the word cohabit, in its technical term as follows: High Court Succession Appeal Case No. E014 of 2014 JUDGEMENT Page 12 of 21 “cohabit” means to live in an arrangement in which an unmarried couple lives together in a long-term relationship that resembles a marriage.” 24. The Protestor did not call any evidence to prove a “presumption’ of marriage. No witness e.g. neighbours, friends etc were called to testify that they knew the couple and regarded them as man and wife. The mere fact of cohabitation does not lead to a presumption of marriage. In the case of PHYLIS NJOKI KARANJA & 2 Others -vs- ROSEMARY MUENI KARANJA & Another [2009] eKLR the Court of Appeal held as follows;- “Before presumption of marriage can arise a party a needs to establish long cohabitation and acts of general repute; that long cohabitation is not mere that the long cohabitation has crystallized into a marriage and it is safe to presume the existence of a marriage. We are of the view that since the presumption is the nature of an assumption it is imperative that certain High Court Succession Appeal Case No. E014 of 2014 JUDGEMENT Page 13 of 21 customary rites be performed. [emphasis my own] 25. In the case of SWK v RNK [2019] eKLR, the court held as follows; “The Respondent’s evidence on alleged cohabitation, and strenuously denied by the Appellant, was not corroborated by any other witness. Not a single independent witness was called, or probative documentary material produced by the Respondent to confirm such cohabitation. Not even a single photograph was placed before the Court to support the alleged cohabitation. Had she cohabited with the Appellant in Nakuru since 2006….., she would surely have been able to call witnesses such as parents, siblings, friends or neighbours or to tender documentary evidence in proof, beyond the four MPesa transactions.. Reviewing the evidence tendered in the lower Court, I am of the High Court Succession Appeal Case No. E014 of 2014 JUDGEMENT Page 14 of 21 view that there was neither credible proof of cohabitation between the parties.” 26. Likewise in this case I find there is no evidence to suggest the existence of a presumption of marriage between the Deceased and the Protestor. I therefore fault the finding of the trial magistrate that the protestor was a wife to the Deceased. 27. The Protestor stated that she bore a son with the Deceased and contends that this child is a dependant of the Deceased and is entitled to inherit from the estate. Firstly the fact that a man and a woman bore a child together does not prove the existence of a marriage. 28. The Protestor did produce as evidence a copy of a birth certificate Serial No. 0467198 (see Annexture ‘EWK 1’) to the Replying to Summons for revocation of Grant dated 5th September 2018. That Birth Certificate was issued on 13th High Court Succession Appeal Case No. E014 of 2014 JUDGEMENT Page 15 of 21 June 2013 relates to a child ‘V N’ who was born on 6th January 2008. The document lists the father’s name as John Kiragu Gitaho’ (the Deceased herein). 29. On the face of it the birth certificate appears to be genuine. However vide a letter to the Registrar of Birth [see Page 40 of the Record of Appeal] Counsel for the Respondents sought to verify the authenticity of the document. In a reply dated 24th August 2018 (Page 41 of the record) the County Civil Registrar Nyeri County indicated that the birth certificate did not represent the true facts as the genuine document held in the official records did not indicate the name of the child’s father. 30. This reply was confirmed by the copy of the Register of Births (Page 42 of the Record) which reveals that only the mother’s name Elizabeth Wangu was listed in the official Register. The name of the Father is not indicated – that portion is left blank. Another letter dated 29th August 2018 written by the Director Civil Registration Services (Page 43 of the High Court Succession Appeal Case No. E014 of 2014 JUDGEMENT Page 16 of 21 record) clearly states that “There is ‘No Fathers’ name in our records.” 31. From the above it is manifestly clear that the birth certificate relied upon by the Protestor as proof that the Deceased was the biological father of her child is not in fact a genuine document. It would appear that the name of the Deceased was inserted AFTER that birth certificate had been issued. As such I find that there is no proof that this child ‘V N’ was sired by the Deceased. There is no evidence that the Deceased was providing for the Protestors two children immediately prior to his demise. I therefore find that the two children are not dependants and are not beneficiaries of the estate. 32. The Protestor stakes a claim to the property known as Plot No. 723 (LR 6845/12) (hereinafter the ‘Mihango Plot’) which she claims to have purchased from Mathare Trade Union where she settled and currently resides. That the said Mihango plot was registered in her name by the time the Deceased High Court Succession Appeal Case No. E014 of 2014 JUDGEMENT Page 17 of 21 passed away. The Protestor complains that the rental income derived from this Mihango Plot is currently being collected and utilized by the father of the Deceased despite the said property being registered in her name. 33. I have perused the Summons for Confirmation of Grant dated 23rd August 2021. At Paragraph 6 of the Supporting affidavit is a list of the Deceased’s assets. Item No. 3 is Mathare Trader Union - Plot No. 173 now LR 6845/1202. This is different form Plot 723 (LR 6845/1202) which the Protestor has referred to in her Affidavit of Protest. Further at Paragraph 8 of the said Affidavit a Protest reference is made to a “Plot 175 now LR 6845/1202’’. There is therefore no clarity over which parcel of land the Protestor is laying claim to. 34. The protestor alleges that she together with the Deceased purchased the Mihango Plot. On the other hand the Appellant claims that she purchased the plot and developed it and has been collecting rent therefrom todate. The obvious question High Court Succession Appeal Case No. E014 of 2014 JUDGEMENT Page 18 of 21 which would arise is if as the Protestor claims the Mihango Plot had been transferred into her name in the year 2015, then how come it was Deceased’s father who has been collecting the rent from the said property? Why has the Protestor taken no action from 2015 to date to reclaim this property? Why has she only come forward to claim this Mihango Plot after the death of the Deceased. 35. The Protestor claims that the Mihango Plot is her property, that it does not form part of the estate of the Deceased and is not available for distribution. If the Protestor is staking a claim over part of the estate property then her remedy lies in the Environment and Land Court (ELC) which is the only court mandated under Article 162 (2) (b) of the Constitution of Kenya 2010 to determine issues relating to ownership of land. 36. With respect to the other assets being (a) LR Muhito/Mbiuni/1100 (b) Motor Cycle Registration KMDS 447 (c) Bank Account No. 1370161952795 held at Equity Bank, High Court Succession Appeal Case No. E014 of 2014 JUDGEMENT Page 19 of 21 Kangemi Branch. I find that these forms part of the estate of the Deceased. 37. Based on the foregoing I do find merit in this appeal. The same is allowed and this court makes the following orders;- (1) The Summons for Confirmation of Grant dated 25th August 2021 is allowed. (2) The estate to be distributed as follows;- ASSETS BENEFICIARY SHARES in 1. Money held Equity Bank Ltd A/C No. 1370161952795 Kangemi Branch 2. MATHARE TRADER UNION PLOT NO. 173 NOW LR 6845 /1202 GRACE GATHONI MWATHI WHOLLY GRACE GATHONI MWATHI 3. L.R MUHITO/MBUINI/11 00 GRACE GATHONI MWATHI In trust for the children Elizabeth Wangari Kiragu, Margaret Wanjiru Kiragu, Lawrence Gitaho Kiragu and Jane Nyambura Kiragu. In trust for her children Elizabeth Wangare Kiragu, Margaret Wanjru Kiragu, Lawrence Gitaho Kiragu and Jane Nyambura Kiragu High Court Succession Appeal Case No. E014 of 2014 JUDGEMENT Page 20 of 21 (3) Each party to meet their own costs for this appeal. Dated in Nyeri this 17th day of April 2026. ………………………… MAUREEN A. ODERO JUDGE High Court Succession Appeal Case No. E014 of 2014 JUDGEMENT Page 21 of 21