[2022] KEHC 10101 (KLR)

In re Estate of Julius Muthuri Mwamba (Deceased) (Civil Appeal E149 of 2021) [2022] KEHC 10101 (KLR) (7 July 2022) (Judgment)

Neutral citation: [2022] KEHC 10101 (KLR)

Republic of Kenya

In the High Court at Meru

Civil Appeal E149 of 2021

TW Cherere, J

July 7, 2022

In re Estate of Julius Muthuri Mwamba (Deceased

Between

Tabitha Nkanaci Mwamba

1st Appellant

Salome Gaita Mutethia

2nd Appellant

and

Julia Gacheri Arimi

Respondent

(Being an appeal from the judgment in Nkubu PMCC Succession Cause No. 44 Of 2016 by Hon. J. Irura on 06th October, 2021)

Judgment

Background 1)Julius Muthuri Mwamba (Deceased) died on the 11th September, 2010. His estate comprised of LR Abogeta/L-chure/839.

2)Tabitha Nkanaci Mwambaand Salome Gaita Mutethia(1st and 2nd Appellants respectively) in their capacity as mother and sister of the deceased applied for Letters of Administration but before they were issued, Julia Gacheri arimi (Respondent) in her capacity as widow of the deceased filed a cross-petition and subsequently Letters of Administration were on 04. 07. 2018 to 2nd Appellant and Respondent.

3)By summons dated 26. 11. 2018, the 1st Appellant/Administrator applied for confirmation of the grant and proposed to distribute the estate as follows:i.½ share to Tabitha Nkanaci Mwambaand Rahab Gakii Mwambaii.½ share to Salome Gaita Mutethia and Julia Gaceri Arimi to hold in trust for Favour Kangai (deceased’s daughter)

4)2nd Administrator/Respondent protested on the ground that deceased was survived by her and their daughter Favour Kangai who were the only rightful beneficiaries.

5)The protest was heard interpartes and by a judgment dated 06/10. 2021, the court upheld the protest and directed that deceased’s estate comprised in LR Abogeta/L-chure/839 be distributed to were issued to Julia Gaceri Arimi (Respondent) on her own behalf and in trust for Favour Kangai (deceased’s daughter)

Appeal 6. Appellants were aggrieved by the trial court’s decision and they filed this appeal on 28. 10. 2021 raising 6 grounds mainly that the learned trial magistrate erred in failing to find that LR Abogeta/L-Chure/839 was family land that was registered in the name of deceased in trust for the family.

7. This being the first appellate court, its duty is to re-evaluate the evidence and come up with its own conclusions but also bear in mind that it should not interfere with the findings of the trial court unless the same were based on no evidence or on misapprehension of the evidence or the trial court applied the wrong principles in reaching its findings. ( See Selle & Another v Associated Motor Boat Co. Ltd & Another (1968) EA 123.

Analysis and Determination 8. I have considered the appeal in the light of the evidence on record and submissions on behalf of the parties and I have deduced the issue for determination as hereunder:1. Whether LR Abogeta/L-Chure/839 belonged to deceased or was held by him in trust for the family2. Whether Appeal has merit

9. The evidence in the form of a Green Card discloses that deceased’s father M’Mwamba M’Nchani owned LR Abogeta/L-Chure/731 which he subdivided into 3 portions namely LR Abogeta/L-Chure/791 which he transferred to his son David Mwiti; LR Abogeta/L-Chure/ 792 which was sold to M’Richuni M’Mwanganthia and retained LR Abogeta/L-Chure/793. He subsequently portioned LR Abogeta/L-Chure/793 into LR Abogeta/L-Chure/839 which he transferred to his son (deceased herein) and LR Abogeta/L-Chure/840 which he transferred to Robert Mbaabu MÍthinji.

10. In her evidence before the trial court, the Respondent confirmed that her father in law lived on the suit land until he died and further that the 1st Appellant still resides on the suit land to date. 1st Appellant told court that she was residing on the suit land before it was transferred to the deceased and has lived there to date. Chief Igoki Location in his introduction letter dated June 4, 2015 which was filed in court on June 29, 2005 confirmed that Appellants and one David Mwiti resided on the land.

11. From the evidence on record, I find that it could not have been the intention of M’Mwamba M’Nchani (deceased) to disinherit his wife (1st Petitioner) when he caused some of his parcels of land to be transferred to his two sons and some to buyers. The fact that M’Mwamba M’Nchani (deceased) lived on the suit land until he died and his wife the 1st Appellant has lived there to date can only mean that the transfer to the deceased was not an absolute gift but that the deceased was holding the suit land in trust for himself and his mother the 1st Appellant herein.

12. Having considered all the evidence on record. I find that the learned trial magistrate’s order disinheriting the 1st Appellant was made against the weight of evidence and is set aside.

13. From the foregoing analysis, I have come to the conclusion that this appeal has merit and it is allowed in the following terms:1. The trial court’s judgment dated October 6, 2021 is set aside and substituted with an order dismissing the protest.2. Deceased’s estate comprised in LR Abogeta/L-Chure/839 shall be distributed as follows:i.½ share to Tabitha Nkanaci Mwambaii.½ share to Julia Gaceri Arimi for herself and in trust for Favour Kangai (deceased’s daughter)3. Respondent shall bear the costs of this appeal

DELIVERED IN MERU THIS 07THDAY OF JULY, 2022WAMAE. T. W. CHEREREJUDGEAppearancesCourt Assistant - Mr. KinotiFor Appellants - Ms. Maore for Kuria Karatu & Co. AdvocatesFor Respondent - Mr. Karanja for Mwirigi Kaburu & Co. Advocates