[2023] KEHC 24792 (KLR)

In re Estate of Bedan Njiru Gikathi alias Njiro Gikathi (Deceased) (Civil Appeal 26 of 2019) [2023] KEHC 24792 (KLR) (3 November 2023) (Judgment)

Neutral citation: [2023] KEHC 24792 (KLR)

Republic of Kenya

In the High Court at Kerugoya

Civil Appeal 26 of 2019

LM Njuguna, J

November 3, 2023

Between

Tabitha Warigia Bedan

Appellant

and

Loise Wanjiru Njiru

Respondent

(Appeal from the Judgment of Hon. S.M.S. Soita RM delivered in Chief Magistrate’s Court at Kerugoya Succession Cause No. 323 of 2016 on 24th April 2019)

Judgment

1. Before this court is a memorandum of appeal dated 08th May 2019, through which the appellant is seeking orders that the judgment of the trial court be set aside and a declaration be made that the deceased had 5 wives and so the estate be distributed according to section 40 of the Law of Succession Act. The appellant has also sought costs of the appeal and any other orders as the court shall deem fit. The appeal is premised on the grounds that the trial magistrate erred in law and fact by:a.Determining that the deceased had 4 wives instead of 5 wives basing on evidence of his occupation, and therefore confirming the grant;b.Relying on the evidence of the respondent at the expense of the appellant, thereby wrongly finding that the deceased had not married Jane Wanjiru Njiru;c.Failing to consider all the material placed before it thereby disinheriting the 5th wife and her children;d.Failing to apply the provisions of the Law of Succession Act to distribute the estate and that the occupation does not amount to a will; ande.Considering extraneous matters in determining the spouses of the deceased.

2. Grant of letters of administration intestate was issued on 19th January 2016 jointly to Tabitha Warigia Njiru and Loise Wanjiru Njiru, the appellant and respondent herein. They proceeded to file summons for confirmation of the grant stating that the deceased had five widows. The petitioner told the court that they had all agreed to have the estate distributed through the widows who would in turn distribute to their children. Therefore, no dependents were listed. The affidavit in support of the summons for confirmation proposed equal distribution of land title number Mutira/Kangai/xx equally amongst all the five wives and the shares to the deceased wife to be held by her surviving children.

3. The respondent filed an affidavit of protest contesting this distribution to Jane Wanjiru Njiru stating that she is a close relative of the deceased and that she cannot inherit as a wife as she was prohibited per the degree of consanguinity. She proposed that the parcel namely Mutira/Kangai/xx be distributed to the respondent, Faith Kariouko Njiru and the sons of the deceased second wife in equal measure and the property in Makima be given to the appellant.

4. The court took viva voce evidence. PW1 was the respondent herein who stated that the deceased left behind land title number Mutira/Kangai/xx measuring approximately 4. 1 acres and another property in Makima measuring approximately 10 acres. That Jane Wanjiru Njiru who is listed in the summons for confirmation of grant as the 5th wife of the deceased was not her co-wife but was a cousin to the deceased. That before his death, the deceased had subdivided parcel no. Mutira/Kangai/xx into three portions for his deceased 2nd wife’s children, 3rd wife and 4th wife. That he has allocated the land in Makima to his first wife the appellant herein and it is registered in the name of her only child. PW2, son of the 2nd wife- Grace Micere, stated as much as PW1, adding that the purported 5th wife never resided on the land and was never married to the deceased. PW3, son of the 4th wife- Faith Kariuko stated in the same terms as PW1 and PW2.

5. DW1 is the appellant herein who stated that when her husband died she moved to the Makima property and the same is registered in the name of her son. That Jane Wanjiru Njiru was not the deceased’s cousin and that she knew Jane’s children who were not living on the land of the deceased. That before his death, the deceased had subdivided his land title no. Mutira/Kangai/79 into three portions for his late 2nd, 3rd and 4th wives. DW2, Jane Wanjiru Njiru stated that she was the 5th wife of the deceased and that she is entitled to a part of his estate. That she is not related to the deceased and that her father and the father of the deceased are not brothers as alleged. That she had seven children with him and one of the children died and was buried on that land.

6. She stated that during the funeral, she was not photographed alongside the other wives because there was fracas. That she did not know that title number Mutira/Kangai/xx had been subdivided. DW3 Duncan Kinyua Njiru, son of DW2 stated that the deceased had five wives and his property should be distributed amongst them all. That they went to the funeral of the deceased but were not included in the photographs. He stated that one of his siblings passed away and had been buried at a public cemetery.

7. After hearing the evidence, the trial court found that the protest had merit and ordered that the property be distributed per paragraph 13A of the affidavit of protest, that is, land Mutira/Kangai/xx to be shared equally amongst the 2nd, 3rd and 4th houses and the 1st house to get the Makima property. It also found that Jane Wanjiru Njiru was not a wife of the deceased and therefore couldn’t inherit.

8. In this appeal, the court directed that the appeal be canvassed by way of written submissions and both parties complied.

9. The appellant submitted that the deceased indeed had five wives including Jane Wanjiru Njiru, with whom he had seven children. That the fact that Jane Wanjiru Njiru did not live or work on the land title number Mutira/Kangai/xx does not mean she was not a wife of the deceased. That the property in Makima is not part of the estate of the deceased as it is registered in the name of her son, Julius Githinji. That the protestor failed to prove that the said property belonged to the estate of the deceased. She relied on the case of Re Estate of Kimitei Cherop (2021) eKLR to argue that the property title number Mutira/Kangai/xx which is the only estate of the deceased should be divided amongst all the 5 wives in accordance with Section 40 of the Law of Succession Act.

10. The respondent submitted that the Makima Land was registered in the name of the appellant’s son and therefore does not form part of the estate of the deceased. That the deceased moved the appellant to the Makima Land and then subdivided the land number Mutira/Kangai/xx into three portions for the 2nd, 3rd and 4th houses. She relied on the case of Rose Kuthii Weru Vs Mercy Koina (2015) eKLR where the court when faced with similar questions, found that the land that had been given to the 1st born of the family under customary law did not form part of the estate of the deceased. The respondent also argued that the appellant cannot litigate the appeal on behalf of the purported 5th wife and that she ought to have been a party to this appeal herself.

11. From the forgoing, the emerging issues for determination are as follows:a.Whether Jane Wanjiru Njiru is a wife of the deceased who should inherit;b.What is the net estate of the deceased available for distribution; andc.Whether section 40 of the law of Succession Act should apply to such distribution.

12. In determining factual issues on a balance of probabilities, I am guided by the sentiments of the court of appeal in the case of Kiilu & Another Vs. Republic (2005)1 KLR 174, where it was held:“An Appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination and to the appellate Court’s own decision on the evidence. The first appellate Court must itself weigh conflicting evidence and draw its own conclusions. It is not the function of a first appellate Court merely to scrutinize the evidence to see if there was some evidence to support the lower Court’s findings and conclusions; Only then can it decide whether the Magistrate’s findings should be supported. In doing so, it should make allowance for the fact that the trial Court has had the advantage of hearing and seeing the witnesses.” Emphasis mine

13. On the first issue for determination, the issue is a question of fact which should have been determined by evidence. Not much was presented to that effect but whatever evidence was adduced is to be subjected to the standard of proof that is, on a balance of probabilities. There is evidence from the opposing sides to show that the deceased had subdivided his land number Mutira/Kangai/xx into three portions and that the appellant moved to the Makima property which belonged to her son. PW1 stated that Jane Wanjiru Njiru was a cousin to the deceased. PW2 said that Jane Wanjiru Njiru was not a wife and never resided on the land number Mutira/Kangai/xx. PW3 also said that Jane Wanjiru Njiru was a cousin to the deceased and that when the deceased was subdividing the land, she was not given any portion of it. That Jane Wanjiru Njiru’s father owned a different piece of land which was sold.

14. DW1 stated that Jane Wanjiru Njiru was not listed as a wife of the deceased in the eulogy and she was also not in the photographs taken at the deceased’s funeral. DW2 who was Jane Wanjiru Njiru stated that she was a wife of the deceased and had seven children with him. That she did not sign the burial permit because she had gone to answer a call of nature. That she didn’t join the other wives for the photoshoot at the funeral because there was fracas and she didn’t know that the land number Mutira/Kangai/xx had been subdivided. DW3, son of Jane Wanjiru Njiru stated that his grandfather and the deceased were not brothers. That growing up, they never lived on the land in dispute but they attended the burial of the deceased. DW3 produced photographs showing the family of Jane Wanjiru Njiru but none of the photos showed the family of Jane Wanjiru Njiru with the deceased. He stated that the deceased member of their family was buried in a public cemetery.

15. The deceased married several wives during his lifetime. I have no doubts that he introduced them to each other and that is how they are able to commonly and comfortably identify each other. If the deceased had married Jane Wanjiru Njiru at any point in time, I doubt he would have been unable to tell the other wives about her. Further, that he had sired children with her. In other words, it is possible that the deceased was fraternizing with Jane Wanjiru Njiru and did not want his four wives to know about it for reasons known to him. Some evidence points to the fact that Jane Wanjiru Njiru and the deceased were first cousins. It is possible that the deceased kept his relationship with Jane Wanjiru Njiru away from his wives because she would not have been accepted. From a wholesome look at the evidence, it is my view that Jane Wanjiru Njiru was not a wife of the deceased. There may have been a relationship between them, but not the kind that can be defined as a marriage for succession purposes.

16. On the question of the net estate of the deceased that is available for distribution, the witnesses testified that the Makima property was given to the 1st wife and registered in the name of her son. This fact was not disputed and in fact, the protestor did not want the Makima property to be included in the estate for distribution. Therefore, the Makima property is not part of the estate available for distribution. As for property number Mutira/Kangai/xx, the deceased subdivided it into 3 portions intended for use by the 2nd, 3rd and 4th houses. I am inclined to agree with the distribution of number Mutira/Kangai/xx as ordered by the lower court.

17. If we should subject the distribution of land parcel number Mutira/Kangai/xx to Section 40 of the Law of Succession Act, we shall be required to consider the number of dependents in each house. However, from the proceedings, the parties had agreed to have the property divided to the wives of the various houses who in turn will divide to their children. This position has also not been contested and I shall therefore not depart from this understanding.

18. In the end, I find that the appeal fails and I do order as follows:a.The property title number Mutira/Kangai/xx be divided in equal shares to the following wives;i.Grace Micere Njiru (deceased) through John Muthike Njiru, Joseph Kinyua Njiru and Nancy Wanjiru Njiruii.Loise Wanjiru Njiruiii.Faith Karioko Njirub.Certificate of confirmation of grant to issue following this judgment; andc.Each party shall bear their own costs in this appeal.

19. It is so ordered.

DELIVERED, DATED AND SIGNED AT KERUGOYA THIS 3RD DAY OF NOVEMBER, 2023. L. NJUGUNAJUDGE