[2022] KEHC 14884 (KLR)

In re Estate of Kamau Njoro alias Kamau s/o Njoro (Deceased) (Family Appeal 7 of 2020) [2022] KEHC 14884 (KLR) (2 November 2022) (Judgment)

Neutral citation: [2022] KEHC 14884 (KLR)

Republic of Kenya

In the High Court at Nyeri

Family Appeal 7 of 2020

JN Njagi, J

November 2, 2022

Between

Nancy Wamuyu Kariuki

1st Appellant

Charity Kariungu Githae

2nd Appellant

Agnes Katto Njoroge

3rd Appellant

Wanjiku J. Kamau

4th Appellant

and

Rosemary Wanjiru Mwangi

Respondent

(Being an appeal from the judgment and order of Hon. E. N. Angima, RM, in Mukurwe-ini SPM`s Court Succession Cause No. 201 of 2018 delivered on 28/4/2020)

Judgment

1. The appeal herein arises from the manner the lower court distributed the estate of the deceased herein among the beneficiaries. The grounds of appeal are:-1. That the learned trial magistrate erred in law and fact in allocating Rosemary Wanjiku Mwangi, Agnes Katto Njoroge & Wanjiku Kamau land parcel No Githi/Kiharo/815 thus disinheriting Charity Wakiuru Githae and Nancy Wamuyu Kariuki on allegations that they were married yet they had not renounced their rights which was discriminatory in nature on the basis of gender contrary to section 38 of the Law of Succession Act.2. That the learned trial magistrate erred in law and fact in failing to make a finding that land parcel no Githi/Kiharo/204 was property of the deceased and the appellant as well as the children of the deceased were entitled to equal shares as per the provisions of to section 38 of Law of Succession Act.3. That the learned magistrate erred in law and fact in allocating Jane Njeri Maina 2. 5 acres out of land parcel Githi/Kiharo/815 instead of ¼ an acre when she had already been provided for by the deceased for what she had purchased save for ¼ acre that was pending.4. That the learned trial magistrate erred in law and fact in failing to make a finding that land parcel Githi/Kiharo/815 measured 2 ½ acres which was the share to be distributed but instead proceeded to distribute land parcel no Githi/Kiharo/815 as 5 acres thus distributing what was non-existent.5. That the learned magistrate misdirected herself in law and facts in failing to consider the evidence of the petitioner and her witnesses in distributing the estate.

2. The appeal was opposed by the respondent videher grounds of opposition dated March 15, 2022. By consent of the parties the appeal was to be canvassed by way of written submissions of the respective advocates for the parties. The firm of Keli & Mwaura Advocates filed submissions on behalf of the appellants. The firm of Makaka & Kiramana Advocates did not comply with the order to file submissions.

3. The advocates for the appellants submitted that the trial court erred in allocating land parcel Githi/Kiharo/815 to the respondent and two of the appellants while leaving out the 1st and the 2nd appellants on the basis that they are married yet they had not renounced their rights over the estate which action was discriminatory on the basis of gender contrary to section 38 of the Law of Succession Act. That the magistrate took the action despite pointing out that the law does not discriminate children of a deceased on the basis of gender and after making a finding that the applicable law in the case was section 38 of the Law of Succession Act. That it was an error for the magistrate to distribute the estate contrary to section 38 of the said act even after finding that the deceased died intestate.

4. Counsel for the appellant faulted the trial court in allocating Jane Njeri Maina 2 ½ acres in land parcel Githi/Kiharo/815 instead of quarter an acre as she had already been provided for by the deceased for her purchase safe for quarter an acre.

5. Counsel further faulted the trial court for failing to make a finding that land parcel Githi/Kiharo/815 measured 2 ½ acres yet the court proceeded to distribute the land as 5 acres thus distributing what was non-existent.

6. Counsel further submitted that the trial court failed to make a finding that land parcel No Githi/Kiharo/204 was the property of the deceased and therefore that the appellants as the children of the deceased were entitled to equal shares.

7. In their grounds of opposition the respondent stated that the trial magistrate did not discriminate against the 1st and 2nd appellants in the manner the court distributed land parcel No Githi/Kiharo/815 as they were allocated another parcel of land in Githi/Kiharo/204 after the court considered the evidence before it. That the distribution was fair, just and equitable.

8. The respondent further stated in her grounds of opposition that it was established that Jane Njeri Maina had bought part of land parcel Githi/Kaharo/815 from the deceased. That the trial court distributed the rest of the land equitably amongst the beneficiaries.

Analysis and determination – 9. This being a first appeal, the court is guided by the principles set out in Selle and Another vs Associated Motor Boat Company Ltd & Others [1968] 1EA 123 where the Court of Appeal stated 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. In particular, this 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 into account of particular circumstances or probabilities materially to estimate the evidence.”

10. The issues for determination in the appeal are:(1)Whether the deceased gave the whole of land parcel Githi/Kaharo to the late husband of the respondent.(2)How the estate ought to be distributed.

11. The four appellants are daughters to the deceased while the respondent is the wife to their late brother. The court distributed the estate as follows:Land parcel Githi/Kaharo/204:Respondent and her children ……To get 3 acresAppellants ……………………..........To jointly get 1½ acresLand parcel Githi/Kaharo/815:Jane Njeri Maina ……………………To get 2½ acresRespondent and her children…....To get 0. 83 acresAgnes Katto Njoroge …………....…To get 0. 83 acresWanjiku J Kamau …………….…..To get 0. 83 acres

12. It was the evidence of the 1st appellant who was the petitioner in the matter that she is married. That before her father died he had allocated the respondent 2 acres in land parcel Githi/Kaharo/204 and gave the rest to the appellants as his daughters. That after the death of their father the respondent chased the 3rd appellant from the land and fenced off the whole land.

13. She further stated that one Jane Njeri Maina had bought 2¼ acres from their father in land parcel Githi/Kaharo/815. That the documents at the land registry indicated that the land is two-and-a-half acres but what was available on the on the ground is 2¼ acres. She filed the succession cause and proposed that the estate be distributed as follows:Land parcel Githi/Kaharo/204:Respondent ……………………To get 0. 80 HaAppellants……………….........To jointly share 0. 98 Ha.Land parcel Githi/Haharo/815:Jane Njeri Maina …………….......To get 0. 10 HaRespondent and Appellants …..To jointly share 0. 90 Ha

14. The appellants called two witnesses when the matter was heard at the lower court. Cyrus Githinji Kanyange PW2 testified that the 1st appellant is married by his nephew. That the deceased herein was married to his sister. That at one time he visited the deceased who told him that he had allocated his son 2 acres of his land. He showed him the beacons. The deceased told him that he was reserving the other 2½ acres for his daughters. That upon the death of the deceased he was buried on the 2½ acres portion and when his son died he was buried on the 2 acres that he had been allocated by his father. That when his sister died in 2014, she was buried next to her husband on the 2 ½ acres portion.

15. The other witness, Charles Nyaga PW3, testified that the deceased was his neighbour. That before the deceased died he had sub-divided his land and given his son 2 acres of the land. He remained with 2½ acres which he said was meant for his wife and daughters. That when the deceased died he was buried on his 2½ acres portion. His son, the husband to the respondent, died and he was buried on his 2 acres portion. That a son to the respondent also died and he was buried next to his father on the 2 acres portion. The witness however stated in cross-examination that he was not there when the land was sub-divided. He further said that the deceased sold another parcel of land No Githi/Kaharo/815 to one Jane Maina.

16. The respondent had at the lower court opposed the mode of distribution proposed by the appellant. She testified that the whole of land parcel No Githi/Kaharo/204 was given to her husband by his father in a meeting held in the year 1996 which meeting was attended by her mother-in-law, her children and elders. Further that her father-in-law had sold 2 acres of land parcel Githi/Kaharo/815 to Jane Maina. That 2½ acres of that land remained after the sale. She proposed that the whole of land parcel Githi/Kaharo/204 goes to her and the appellants to get the 2½ acres of Githi/Kaharo/815.

17. The respondent called 4 witnesses in the case. Mwangi Murimi DW2 testified that the deceased was his uncle. That he used to visit him. That the husband to the respondent was the first-born son to the deceased. That the deceased had 3 parcels of land. One of them was sold to Jane. The other was 204 and there was also clan land. That the deceased used to say that his land was for his son and his wife. Therefore, that the land should be distributed as per the proposal of the respondent as it agrees with the wishes of the deceased.

18. In cross-examination the witness said that the deceased used to say that in case any of his daughters was unmarried she could take the land that was given to their mother.

19. The other 3 witnesses - Joseph Gichure DW3, Peris Wanjiru DW4 and Maina Weru DW5 all testified that it is the respondent who is occupying land parcel 204. DW4 confirmed that the respondent fenced the land where she lives after the death of her mother-in-law. DW5 stated that the land where the respondent lives was given to her husband by his father.

20. I have considered the grounds in support of the appeal, the grounds in opposition and the submissions. The issue for determination is whether the trial court erred in the manner it distributed the estate.

21. The respondent was claiming the whole of land parcel Githi/Kaharo/204 which measures 1. 78 Haor the equivalent of 4. 5 acres on the ground that the deceased had given the whole of the land to her husband. The appellants on the other hand proposed that the respondent be given 0. 80 Ha (equivalent to 2 acres) and the appellants to jointly get 0. 98 Ha (equivalent to 2. 5 acres) on the basis that the deceased had given the respondent`s husband 2 acres and that the remaining 2 ½ should go to them. The question then that was before the magistrate is whether the deceased had given the respondent`s husband the whole of land parcel Githi/Kiharo/204. The trial magistrate did not answer that question and neither did she give a plausible reason as to why she proceeded to allocate the respondent 3 acres and the appellants 1. 5 acres.

22. The respondent alleged that her father-in-law gave her husband the whole of land parcel No Githi/Kaharo/204 in a meeting that took place in the year 1996. That the meeting was attended by her mother-in-law, her children and elders. That Mwangi Murimi was one of the elders who attended the meeting. However, none of the 4 witnesses that the respondent called mentioned such a meeting. Mwangi Murimi DW2 whom the respondent claimed to have attended the meeting never made mention of such a meeting. The respondent was then lying that her late husband was given the whole of the said land by his father. There was no credible evidence that the deceased gave the whole of the land to the respondent`s husband.

23. It is most likely that the deceased`s husband was given 2 acres as stated by the 1st appellant and her witnesses and his father had remained with 2 ½ acres. It is to be observed that the respondent fenced the whole of the land and kicked out the 3rd appellant after the death of her mother-in-law. The unanswered question is as to why she had to wait for the death of her mother-in-law to fence off the whole of the land. I reject the contention by the respondent that the whole of land parcel Githi/Kaharo/204 was given to her late husband by the deceased. The land should be distributed as intestate estate.

Distribution of the estate- 24. In distributing the estate, the magistrate stated that the estate was to be distributed in accordance of the provisions of section 38 of the Law of Succession Act. Further that she had considered the status of the beneficiaries` families visa vis the portion that was the subject of distribution.

25. Section 38 of the Law of Succession Act provides as follows:-Where an intestate has left a surviving child or children but no spouse, the net intestate estate shall, subject to the provisions of sections 41 and 42, devolve upon the surviving child, if there be only one, or shall be equally divided among the surviving children.

26. In this matter the deceased was survived by 4 daughters, the appellants and a daughter-in-law, the respondent. The daughter-in-law is taking the place of her late husband. Section 38 of the Law of Succession Act requires that the property be divided equally between the children of the deceased. InStephen Gitonga M’murithi vs. Faith Ngira Murithi (2015)eKLR the Court of Appeal made it explicit that for purposes of the law of succession, the children of a deceased are equal, irrespective of their gender or marital status. It accordingly held that:-“…Section 38 enshrines the principle of equal distribution of the net intestate estate to the surviving children irrespective of gender and whether married and comfortable in their marriage or unmarried. Section 40 on the other hand enjoins the inclusion of a surviving spouse as an additional unit to each household of a polygamous deceased. Applying the above principles … it is our finding that the learned trial Judge fell into an error when he failed to accord equal distribution to all the children of the deceased in violation of the section 38 of the Law of Succession Act by discriminating against the married daughters of the deceased…”

27. The trial court in this case seems to have given the respondent 3 acres of land parcel Githi/Kaharo/204 and reduced that of the appellants to 1 ½ acres on the ground that she had considered the “status of the beneficiaries` families vis a vis the portion that is now the subject of distribution..” It is not clear what the magistrate meant by this statement but she seems to have implied that she had to consider the marital status of the appellants and the fact that the respondent had many children as was stated by her witnesses. This is evidenced by the fact that in her distribution she gave the respondent`s share to her and her children. She did not consider the fact that the appellants may also have their own children. In my view, the magistrate employed the wrong approach. Whether the appellants were married or not was not the issue as the law requires distribution of an estate to be done without regard to marital status. Whether the respondent had a big family was not the issue as it is not the grandchildren of the deceased who were being considered for inheritance but the deceased`s children. In Re Estate of Veronica Njoki Wakagoto (Deceased)(2013) eKLR, it was explained that:-“Under Part V, grandchildren have no right to inherit their grandparents who die intestate after July 1, 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.”

28. The magistrate in the instant case erred in tending to consider the grand children when distributing The estate of the deceased. She tended to discriminate on the appellants based on their marital status. This is sufficient reason for this court to interfere with the distribution done by the magistrate. The beneficiaries were required to share the land equally.

29. The appellants were magnanimous enough to allow the respondent to take 2 acres while they were to share jointly 2 ½ acres. It is my humble view that their proposal was reasonable and the trial court ought not to have rejected it in the name of doing an equitable distribution of the estate. There were no exceptional circumstances to warrant departure from the principles set out in section 38 of the Law of Succession Act. I therefore find that the respondent should take 2 acres of land parcel Githi/Kaharo/204 while the appellants are to jointly share 2 ½ acres.

30. As regards land parcel Githi/Kaharo/815, the respondent had stated in her written statement that it is the appellants who sold Jane Njeri Maina a portion of the said land. However, in her evidence in court she conceded that it is in fact the deceased who sold Jane the land. The parties are then in agreement that Jane Njeri bought a portion of land parcel Githi/Kaharo/815 from the deceased.

31. According to the search certificate filed with the petition, the subject land measures 0. 94 Hawhich is equivalent to 2. 32 acres. The 1st appellant in her evidence stated that Njeri bought 2 acres from her father. That later on her parents gifted her with ¼ an acre in appreciation for taking care of them. That her entitlement is 2 ¼ acres. The respondent on the other hand said that Njeri had only bought 2 acres. In my view, there is no evidence that the deceased gifted Njeri with ¼ an acre. There is no document to prove so and the ¼ acre was not transferred to her by the deceased. The entitlement for Jane Njeri Maina is therefore 2 acres. Whatever is over and above the 2 acres is the property of the estate of the deceased. The proposal that was being put forth by the respondent that the appellants should get their share from land parcel Githi/Kiharo/815 is not possible as what is remaining after Njeri gets her share is barely enough to be shared by the 4 of them. As the appellants have surrendered part of their entitlement to the respondent in land parcel Githi/Kaharo/204, it is my view that they should get the small portion that is remaining in land parcel Githi/Kaharo/815 after Jane is given her share.

32. The trial magistrate allocated Jane Njeri 2½ acres in land parcel Githi/Kaharo/815. The magistrate did not explain why she allocated Jane Njeri 2½ acres when her entitlement was admitted to be less than that. In any case the search certificate that was annexed to the petition indicated that the whole land measures 2. 32 acres, which is less than the 2. 5 acres that the court allocated to Jane Njeri. The trial court erred in that respect.

33. Whereas it was clear from the search certificate that the said land measured 2. 32 acres, the trial magistrate proceeded to distribute the land as if it was 5 acres. The 2 ½ that was distributed after removing Jane`s share was non-existent. The trial magistrate was in error to distribute land that was not in existence.

34. In view of the foregoing, the orders of the trial court are set aside and I distribute the estate as follows:-Land parcel No.Githi/Kaharo/204:Rosemary Wanjiru Mwangi ……….To get 2 acresNancy Wamuyu KariukiCharity Wakiuru GithaeAgnes Katto NjorogeWanjiku J. Kamau……To jointly share 2½ acresLand parcel Githi/Kaharo/815:Jane Njeri Mwangi ……………………To get 2 acresNancy Wamuyu KariukiCharity Wakiuru GithaeAgnes Katto NjorogeWanjiku J. Kamau…........To jointly share the balance

35. Orders accordingly. As the matter involves members of the same family, I order each party to bear its own costs to the appeal.

Signed by:J. N. NJAGIJUDGEDELIVERED, DATED AND SIGNED AT NYERI THIS 2ND DAY OF NOVEMBER, 2022. By:HON. JUSTICE M. MUYAJUDGEIn the presence of:Mwania Absent: for AppellantsMakaka: for RespondentRespondent : MakakaCourt Assistant: Kinyua30 days R/A.