[2023] KEHC 25166 (KLR)

In re Estate of Marete Mwirebua (Deceased) (Civil Appeal E006 of 2022) [2023] KEHC 25166 (KLR) (9 November 2023) (Judgment)

Neutral citation: [2023] KEHC 25166 (KLR)

Republic of Kenya

In the High Court at Chuka

Civil Appeal E006 of 2022

LW Gitari, J

November 9, 2023

IN THE MATTER OF THE ESTATE OF MARETE MWIREBUA (DECEASED)

Between

Gerrard Kabii Marete

Appellant

and

Fridah Nkirote Marete

Respondent

(An appeal against the ruling delivered on 16th March, 2022 in Chuka CMC Succession Cause No. 92 of 2017 by Hon Joyce Gandani CM)

Judgment

1. This is an appeal was instituted vide the Memorandum of Appeal dated 25th March, 2022. The Appeal is against the ruling delivered on 16th March, 2022 in Chuka CMC Succession Cause No. 92 of 2017. The appeal is premised on the following grounds:a.The learned magistrate misdirected herself in law by failing to give the Appellant a chance to argue his case through a full hearing once the affidavit of protest was filed.b.The learned magistrate erred in law in confirming the grant with the condition that the protestor’s mode of distribution be used in distributing the estate.c.The learned magistrate erred in law and in fact in failing to consider that the Appellant’s mode of distribution was anchored upon inter vivos gifts bequeathed by the deceased person before his demise.d.Such other grounds as will be adduced and/or canvassed at the hearing hereof.

2. Based on the above grounds, the Appellant prays for the following orders:a.That the appeal be allowed and the decision/ruling of the Honourable Joyce Gandani, Chief Magistrate made on 16th March, 2022 be quashed, vacated and/or set aside.b.That the deceased person distributed his estate to his children through inter vivos.c.That the Appellant’s mode of distribution presented at paragraph 5 of the affidavit dated 11th May, 2021 is the correct way to distribute the wealth as it takes into account the inter vivos gifts.d.That the Respondent bears the costs for the proceedings before the lower court and those before this Honourable Court.

3. The parties were directed to canvass the appeal by way of written submissions. The Appellant filed his appeal through his advocate on record on 29th December, 2022. On the other hand, the Respondent failed to put in her submissions.

4. I have considered the Appellant’s grounds of appeal as well as his submissions. The main issue that arises for determination by this Court is whether the present appeal is merited.

Analysis 5. This is a first appeal. From the foregoing analysis, it is my view that the Appellant’s appeal is merited. The role of the first appellate court is stated in many authorities. In Kiilu and another vs. R (2005) 1 KLR 174 the court held that:“An Appellant in a 1st appeal is entitled to expect the whole evidence as a whole to be submitted to a fresh and exhaustive examination and to the appellate Court's own decision in the evidence. The 1st appellate Court must itself weigh conflicting evidence and draw its own conclusions.”

6. This cause relates to the estate of Marete Mwerebua (deceased) who died intestate on 8th April, 2004. A grant of letters of administration intestate in respect of the deceased’s estate was issued to the Appellant herein on 16th July, 2018. Consequently, vide Summons for Confirmation of Grant dated 11th May, 2021, the Appellant sought for the confirmation of the aforesaid grant issued to him in the following terms:and Parcel No. L.R. Mwimbi/Chogoria/3856 – 4. 64 Hai.Miriti Marete - 2 Acresii.Gerald Kabii Marete - 2 ½ Acresiii.Gilbert Mugambi Marete - 2 Acresiv.John Mwenda Kithinji - 2 Acresv.Grace Igoji Marete - ½ Acresvi.Dores Jiomba Marete - ½ Acresvii.Agness Kanyua Marete - ½ Acresviii.Celina Wanja Kaaria - ½ Acresix.Kelvin Murimi Mbae - ½ Acresx.Joses Ndiga Mbae - ½ Acresxi.Catherine Muthoni Maretexii.Mercy Nkinga Maretexiii.Allison Gatune Marete jointly to get ½ Acresxiv.Fridah Nkirote Marete

7. The Respondent herein then filed an Affidavit of Protest sworn on by herself on 25th January, 2022. She protested against the mode of distribution proposed by the Appellant on the grounds that:a.No beneficiary of the estate of the deceased had consented to the said mode of distribution as proposed by the Appellant.b.The Appellant did not involve them during the filing of the summons of confirmation of grant.c.The said mode is discriminatory and biased in that some are getting a larger part of the deceased’s estate while others are getting a small piece.d.The consent filed by the Appellant dated 11th May, 2021 is not the correct consent for they did not have a chance to read the mode of distribution before signing the consent for the Appellant only brought the consent alone for them to sign.

8. The Respondent thus proposed the distribution of the subject estate as follows:Land Parcel No. L.R. Mwimbi/Chogoria/3856 – 4. 64 Haxv.Miriti Marete - 1. 50 Acresxvi.Gerald Kabii Marete - 1. 50 Acresxvii.Gilbert Mugambi Marete - 1. 50 Acresxviii.John Mwenda Kithinji - 1. 50 Acresxix.Grace Igoji Marete - 0. 50 Acresxx.Dores Jiomba Marete - 0. 50 Acresxxi.Agnes Kanyua Marete - 0. 50 Acresxxii.Celina Wanja Kaaria - 0. 50 Acresxxiii.Kelvin Murimi Mbae - 0. 50 Acresxxiv.Joses Ndiga Mbae - 0. 50 Acresxxv.Catherine Muthoni Marete - 0. 50 Acresxxvi.Mercy Nkinga Marete - 0. 50 Acresxxvii.Allison Gatune Marete - 0. 50 Acresxxviii.Fridah Nkirote Marete - 0. 50 Acres

9. In this appeal, the Appellant states that he is aggrieved by the process of the confirmation of the grant by the subordinate court. The Appellant contends that the protest filed by the Respondent was not heard. The Appellant thus faults the trial court for adopting the Respondent’s proposal on the mode of the distribution of the estate and failing to consider that the deceased had prior to his demise distributed his estate to his children through inter vivos gifts.

10. It is not in dispute that the estate of the deceased is comprised of a single land parcel the same being L.R. Mwimbi/Chogoria/3856.

11. The procedure to be followed at the hearing of an application for confirmation of grant is provided under Rule 41 of the Probate and Administration Rules (the “Rules”). Sub-rules (1) and (2) of Rule 41 of the Rules provide as follows:“(1)At the hearing of the application for confirmation the court shall first read out in the language or respective languages in which they appear the application, the grant, the affidavits and any written protests which have been filed and shall then hear the applicant and each protester and any other person interested, whether such persons appear personally or by advocate or by a representative.(2)The court may either confirm the grant or refer it back for further consideration by the applicant or adjourn the hearing for further evidence to be adduced or make any other order necessary for satisfying itself as to the expediency of confirming the applicant as the holder of the grant or concerning the identities, shares and interests of the persons beneficially entitled and any other issue which has arisen including the interpretation of any will.”

12. I have perused the record of proceedings before the lower court. I note after the summons for confirmation of grant were filed on 11th May, 2021, one of the beneficiaries of the deceased’s estate, Agnes Kanyua, indicated to the court on 8th November, 2021 that Mercy Nkunga, Gatua Marete, Grace Igoji and Doris Jiomba were all opposed to the distribution of the estate. The learned magistrate then directed that those opposed to the proposed mode of distribution to file their objections within 14 days and the matter was given a mention date on 26th January, 2022. The Respondent then filed her affidavit of protest on 25th January, 2022. The following day when the matter was set for a mention, the learned magistrate indicated that she had seen the affidavit of protest and proceeded to give a ruling date on 16th March, 2022. On 16th March, 2022, the learned magistrate then delivered the impugned ruling which is the subject of this appeal.

13. Without going into the merits of the summons application for confirmation of grant, it is clear from a reading of the provision of Rule 41(1) of the Rules that the subordinate court erred for failing to give the Appellant a chance to argue his case through a full hearing once the affidavit of protest was filed by the Respondent. It follows that the confirmation process was flawed as it did not follow the laid down legal procedure for hearing of applications for confirmation of grants and should therefore not be allowed to stand. It is clear from the impugned ruling that the trial magistrate found that the beneficiaries had not consent were not involved in filing of the summons and the proposed mode of distribution was discriminatory. The beneficiaries were not given an opportunity to be heard. It is important that the protest be heard on merits.

Conclusion 14. From the foregoing, I opine that the present appeal is merited.I therefore order as follows:1. The appeal is allowed.2. The ruling by the trial magistrate dated 16/3/2022 is set aside.3. The file is remitted back to Chuka Chief Magistrate’s Court for the hearing and determination of the respondents and any other matters that may arise in the proceedings.4. I make no orders as to costs.

DATED, SIGNED AND DELIVERED AT CHUKA THIS 9TH DAY OF NOVEMBER 2023. L.W. GITARIJUDGE