[2022] KEHC 10797 (KLR)

In re Estate of Ngigi Njege (Deceased) (Civil Appeal 3 of 2019) [2022] KEHC 10797 (KLR) (2 June 2022) (Judgment)

Neutral citation: [2022] KEHC 10797 (KLR)

Republic of Kenya

In the High Court at Kerugoya

Civil Appeal 3 of 2019

RM Mwongo, J

June 2, 2022

Between

Harrison Ngigi Kimondo

Appellant

and

Jeremiah Wanjohi Kimondo

Respondent

((Being an appeal against the Judgment of Hon E Wambo SRM dated 19/12/2018 in CM Succession Cause No 208 of 2001))

Judgment

Appeal Grounds 1. In the trial court, judgment was rendered to the effect that: Jeremiah Wanjohi Kimondo be made a joint administrator of the deceased’s estate; and that land parcel No Mwerua/Kiandai/383 be distributed in accordance with the affidavit of protest dated and filed on October 22, 2018.

2. The distribution ordered was as follows (set out in pargraph 9 of the said affidavit of protest:“Jeremiah Wanjohi Kimondo -5 Acres( to hold in trust for Jason Maina Kimondo, Penina Wangu Mathini, Judy Njeri Muriithi and Eunice Wanjiku”

3. Dissatisfied, the appellant faults the judgment of the lower court on the grounds that:1. The learned Magistrate erred in law and in fact in deciding the case against the weight of evidence adduced by the petitioner and his witness.2. The learned magistrate erred in law and in fact in deciding the issue of trust land in a succession cause without having heard evidence on the same.3. The learned magistrate erred in law and in fact in issuing orders of joint administration of the estate of the deceased while no application had been by either the petitioner or the respondent.4. The learned magistrate erred in law and in fact in making a decision that anyone in occupation of land parcel number Mwerua/Kiandai /383 was a trespasser.5. The learned magistrate erred in-law and in fact in deciding the matter on extraneous evidence contrary to what has been adduced in court.

4. The appellant prays that the appeal be allowed and that the distribution of the deceased’s estate be as follows:i)Joyce Micere Kimondo - 1 acreii)Peninah Wangu Mathini - ½ acreiii)Jeremiah Wanjohi Kimondo- ½ acreiv)Jason Maina Kimondo - ½ acrev)Judy Njeri Muriithi - ½ acrevi)Eunice Wanjiku - ½ acresvii)Godfrey Ngungu - 1½ jointlyviii)Naftaly Kangani Ngungu -ix)John Muriithi Ngungu -

Introduction and Background 5. The duty of this appellate court on first appeal is to reevaluate all the evidence and to come to its own conclusions noting that it did not itself have an opportunity to hear and see the demeanour of witnesses. This was well put in Peters v Sunday Post Ltd [1958] EA 424, where the court held:“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 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”

6. Similarly, in Abok James Odera t/a A.J Odera & Associates v John Patrick Machira t/a Machira & Co. Advocates [2013] eKLR, the court’s duty was restated as follows:“This being a first appeal, we are reminded of our primary role as a first appellate court namely, to re-evaluate, re-assess and reanalyze the extracts on the record and then determine whether the conclusions reached by the learned trial Judge are to stand or not and give reasons either way”

7. I proceed to consider the appeal in that light, taking into account the material on record.

8. The record shows that the deceased, Ngigi Njege, died on 9th April 1977. Harrison Ngige Kimondo, the appellant who indicated himself as a grandson of the deceased, filed Succession Cause No 208 of 2001, on 28th August 2001. According to the Chief’s letter accompanying the petition, the deceased’s wife died on 31st August, 1978, and his only son Kimondo Ngige (then aged 80 years), survived the deceased. Harrison Ngige Kimondo named himself, Jeremiah Wanjohi Kimondo and Ngungu Kimondo Ngige, also grandsons of the deceased, as survivors. For unexplained reasons, he omitted the surviving son of the deceased from the petition.

9. In the affidavit in support of the petition filed by the petitioner, the only property of the deceased indicated therein is Parcel No Mwerua/Kiandai/383. The parcel comprises 5. 2 Acres. Annexed to Deceased’s Death Certificate and Chief’s letter is a copy of the Green Card for the Parcel Mwerua /Kiandai/383 filed on 28/August 2001. Entry No 1 of 4. 2.1961 shows the proprietor as Ngige Njege.

10. The last proceeding in the file shows that on 28/11/2001, an application for an order for issuance of the grant of letters of administration was made. An order was made by the District Registrar for the grant to issue. The actual grant of letters of administration was issued on 10th December, 2001 to the petitioner.

11. The file then apparently went to sleep until 13th February, 2017, when the petitioner filed an application for confirmation of grant. In his affidavit in support of the summons for confirmation, the only property of the deceased indicated as ascertained is Mweru/Kiandai/ 383. In the affidavit, the petitioner averred:“3. That the deceased was survived by the following children:a)Joyce Micere Kimondo (Wife)b)Himself, Harrison Ngigi Kimondo (son)c)Peninah Wangu Mathini (daughter)d)Geoffrey Ngungu (son)e)Jeremiah Wanjohi Kimondo (son)f)Jason Maina Kamondo (son)g)Judy Njeri Muriithi (daughter)h)Eunice Wanjiku (daughter)4. That the deceased was survived by the following other dependantsa)Naftary Kangangi Ngungu – son of Geoffrey Ngungub)John Muriithi Ngungu – son of the deceased”

12. The application for confirmation was opposed by Jeremiah Wanjohi Kimondo; Jason Maina Kimondo; Judy Njeri Muriithi; and Eunice Wanjiku Mutugi through an affidavit of protest filed on 6th June 2017. It introduces the deceased’s children as Wanjiku Ngigi, Wambui Ngigi, both respectively married and deceased, and Kimondo Ngigi, the deceased’s son who survived the deceased. Kimondo Ngigi was referred to in the Chief’s letter as aged 80 years at the timen of the deceased’s death.

13. The affidavit of protest further indicates that the deceased’s son, Kimondo Ngigi had three wives, namely Joyce Micere Kimondo, Agnes Muthoni (deceased) and Teresiah Muthoni. Each had children who are named in the affidavit. The protest proposes distribution of the deceased’s land to the three homes as follows:-House of Joyce Micere Kimondo -1Acre to Joyce Micere Kimondo and 11/2 Acres jointly to her son Godfrey Ngungu and two others-the House of Agnes Muthoni – 1 Acre to each of Jeremiah Wanjohi Kimondo and Jason Maina Kimondo, her sons; and ½ Acre jointly to Peninah Wangu Mathini, Judy Njeri Muriithi and Eunice Wanjiku Mutugi;The House of Teresiah Muthoni is left out as they have land elsewhere.

14. The petitioner filed a reply to the protest on 15th June, 2017, opposing the distribution proposed by the protestors. He admits that Kimondo Ngige had three wives, namely, Joyce Micere Kimondo, Agnes Muthoni (deceased) and Teresiah Muthoni. Further, the petitioner introduces a property, viz. Rice Holding in Mwea No 3778, Karaba, which he asserts belonged to Agnes Muthoni and benefits Jeremiah Wanjohi and Jason Maina Kimondo.

15. In the meantime, it appears that on 7th April 2015, Jeremiah Wanjohi Kimondo had filed Succession Cause 197 of 2015 in the High Court at Kerugoya in the estate Ngigi Njege alias Ngige Njege. After the enhancement of the Magistrate’s courts’ jurisdiction, the file was re-numbered Succession Cause No 165 of 2016 in the Principal Magistrate’s court at Baricho. In the result, a Grant of letters of administration was issued to Jeremiah Wanjohi Kimondo on 7th February 2017.

16. In the subsequent application for confirmation in Cause No 165 of 2016, the only property of the deceased was indicated as Mwerua/Kiandai/383. Equally, the petitioner Jeremiah Wanjohi Kimondo was, improperly, identified as solely entitled to the said property. The grant was confirmed as shown by Certificate of Confirmation of Grant issued by the Baricho Court on 14th August 2017, to Jeremiah Wanjohi Kimondo. The said confirmation of grant was revoked by the trial court on 28th June 2018.

17. On 22nd October 2018, the protestor, Jeremiah Wanjohi Kimondo, filed a further affidavit of protest in Succession No 208 of 2001 (the present proceedings). He averred, inter alia:-That his father Ngigi Kimondo bequeathed his land parcel No Mwerua/ Kiandai/384 of 5 acres to Harrison Ngigi Kimondo, the appellant, from the House of Joyce Micere; He attached the Green card for the parcel;-That his father bequeathed LR Mutithi/Chumbiri/275 of 1. 6 hectares to Teresiah Muthoni who is living there with her House;-that his father did not bequeath any land to the House of Agnes Muthoni, the protestor’s ;-That the land Mwerua/ Kiandai/383 belonging to his grandfather should therefore be inherited by the children of his mother’s House, and that he should hold it on trust for Jason Maina Kimondo, Penninah Wangu Mathini, Judy Njeri Muriithi and Eunice Wanjiku, otherwise they will be rendered destitute.

18. This was the scenario at the time of the hearing of the protest against confirmation of the grant in the lower court in 2018.

Parties’ Cases 19. The evidence at the hearing was adduced by the protestor Jeremiah Wanjohi Kimondo, the petitioner Harrison Ngigi Kimondo and Joyce Micere Kimondo. All witnesses adopted their witness statements and affidavits, respectively, in support of or in protest to the confirmation.

20. In summary, the Protestors case is essentially that the house of Joyce Micere Kimondo and Teresiah Muthoni had been bequeathed land by their father, Ngigi Kimondo, during his lifetime and they gave their proposed mode of distribution in respect to L.R Mwerua/Kiandai/383 which is the only deceased’s properly available for distribution.

21. On 16. 10. 2018 when the matter came up for hearing, the protestors indicated that they wished to change their mode of distribution as appears in the proceedings on page 21 of the record of appeal. That the protestors were granted leave to file a proper mode of distribution within 3 days and they filed the affidavit of protest dated 22. 10. 2018, referred to earlier and relied upon by the trial court.

22. The core of the petitioner’s case is essentially that there is only one property in issue in the estate of the deceased Ngige Njege, and that is L.R Mwerua/Kiandai/383; that the property and or distribution of the property of the deceased’s son Kimondo Ngige cannot be the subject of the succession or distribution herein.

23. It is apt that I set out the parties submissions, which are as follows.

Appellant’s submissionsGround 1 and 5 Jointly 24. The appellant submitted that the learned magistrate relied on extraneous evidence to support his findings. That there was no cogent evidence adduced by the parties that proved that the late Kimondo Ngigi would have transferred the land to the late Agnes Muthoni.

25. Section 107 of the Evidence Act (cap 80 Laws burden of proof on the party who wants the court to rely on the existence of any set of facts those facts. The protestor’s reason for the protest was that the petitioner had been bequeathed Land Parcel Number Mwerua/Kiandai/384 to hold in trust of the house of Joyce Micere. The protestor did not produce cogent evidence to prove the alleged trust.

26. He also stated that the house of Agnes Muthoni will be rendered destitute. Both the Appellant and Respondent gave evidence that the Respondent occupies 2 1/2 acres of Mwerua/Kiandai/383 on which he has made various developments. The Appellant's proposed mode of distribution considers the Respondent and his siblings. However, the Respondent did not call any of his siblings as witnesses to confirm that indeed they will be left destitute. Therefore, the claim that the house of the late Agnes Muthoni would be left destitute could not stand for lack of evidence.

Ground 2 27. The learned magistrate's first issue for determination was whether or not the petitioner held Land Parcel Number Mwerua/Kiandai/384 in trust for the household of Joyce Micere. As Mwerua/Kiandai/384 is registered under the name of the Appellant, the appropriate court to deal with the parcel of land is the Environment and Land Court. Therefore, the suit on land ought to be the subject matter of a separate suit. Hence, the learned magistrate erred in deciding the issue of trust land in this case.

28. The appellant relies on the High Court Succession Cause No. 364 of 1996 In Re Estate of Mbai Wanaina (Deceased)[2015] eKLR where the brothers of the Deceased claimed that a parcel of land was held in trust for all the brothers. There, Musyoka J stated:“18. Even if there was material establishing that there was such a trust, I doubt that that would be a matter for the probate court. The mandate of the probate court under the Law of Succession Act is limited. It does not extend to determine issues of ownership of property and declarations of trusts. It is not a matter of the probate court being incompetent to deal with such issue, but rather that the provisions of the — and the relevant subsidiary, legislation do not provide a convenient mechanism for determination of such issues. A party who wishes to have such matters to be resolved ought to file the Environment and Land Court.

29. The appellant submit that the learned magistrate made an error since the green card that was produced clearly showed that the land was given to Ngige Kimondo, the Appellant herein, in 1961 and he stated that he changed the name to read his full name, Harrison Ngige Kimondo. The learned magistrate relied on extraneous evidence which had not been proven by the parties.

Ground 4: 30. This ground is that the learned magistrate erred in law and in fact in making a decision that anyone in occupation of land parcel number Mwerua/Kiandai/383 was a trespasser; and that anyone in occupation of the suit land, who is not a child of the said Agnes Muthoni (deceased) is a trespasser.

31. Paragraph 9 of the petitioner's replying affidavit dated 22nd October 2018 stated that Mwerua/Kiandai/383 is occupied by Joyce Micere Kimondo (the appellant's mother), Jeremiah Wanjohi Kimondo (the respondent) and Godfrey Ngungu Kimondo (the appellant's brother). Paragraph 10 states that Godfrey Ngungu and Joyce Micere each occupies 2 1/2 acres of Mwerua/Kiandai/383 where they have built and developed since the late Ngige Njege was alive.

32. The appellant submits that the ruling infringes on the rights of the appellant’s mother and brother since they have equal beneficial interest in Ngige Njege as the house of Agnes Muthoni (deceased).

33. Additionally, the Respondent had not pleaded trespass. The elements of trespass were not proved to establish the tort of trespass in this court. Furthermore, this was not the appropriate court to make a declaration of trespass. The most appropriate court to do this is the Environment and Land Court Act.

34. Further, the appellant submits that the court should allow Ground 3 of the Memorandum of Appeal since no application for joint administration of the estate had been made by either the petitioner or the respondent. Section 58 (2) of the Law of Succession Act provides that where there is a resulting trust, a sole surviving administrator is required to apply for an additional administrator failing which the court will appoint on its own motion.

Respondent’s submissions Ground 1 & 2 35. The respondent submits that the Appellant confirmed that he was given land parcel Mwerua/Kiandai/384 by the clan. He said that his father had 3 wives and he gave land parcel Mutithi/Chumbiri/275 to his 3rd wife Teresiah Muthoni and gave his 2nd wife Agnes Muthoni 2 acres of land which is 3778B Karaba Section though he did not produce any evidence to show that Agnes was given the land.

36. The Appellant's mother who was his witness testified and confirmed that indeed the appellant had been given land parcel Mwerua/Kiandai/384 the clan for he was the first born son in their family. The court was right in deciding that the appellant held land parcel Mwerua/Kiandai /384 in trust for his family and that the only land that is available for distribution should go to the house of Agnes Muthoni since she was not given any land.

37. The respondent cited the case of In Re Estate of James Murimi Kamau (Deceased) [2018] eKLR. There, Ndung’u, J, relied on the case of Karisa Madumbo Mweni v Kavumbi Kitsano & 2 otherswhere the Judge while amplifying Section 26 of the Registered Land Act stated that "'there is no need to indicate in the register that one is a trustee but the principle can be inferred from the circumstances of this case. ”

38. The respondent submitted that evidence was adduced and the appellant (petitioner in the lower court) and his mother Joyce Micere Kimondo did confirm that there was a trust. The Appellant having who confirmed all this cannot argue that the court decided the issue of trust without hearing evidence on the same.

Grounds 3 and 4 39. The respondent submits that having said that the issue of trust was inferred from this case, the court held that since the Appellant was given Mwerua/Kiandai/384 by the clan, then the house of his mother Joyce Micere Kimondo ought to get a share from that land so that the only property that is available for distribution was Mwerua/Kiandai/383 which the court gave to the house of Agnes Muthoni with the Respondent Jeremiah Wanjohi Kimondo holding it in trust for his siblings.

40. Consequently, the Respondent was entitled to be made a joint administrator since he was a beneficiary of the deceased's estate. The appellant would not have executed the grant if he was a sole administrator since he was not given the deceased's land as he so wished.

41. Reliance was placed onsection 75 A (1) of the Law of Succession Act which states:“if, after confirmation of the grant of letters of administration at any time there is a continuing trust and only one surviving administrator, that administrator shall without delay apply to the court to appoint, subject to section 66, as administrators jointly with him not less than one or more than three persons as proposed by him, which failing are chosen by court on its own motion ’’

42. The respondent submitted that the court held that land parcel Mwerua/Kiandai/383 should be inherited by the house of Agnes Muthoni which had not been provided for. They relied onrule 73 of the Probate and Administration Rules which states nothing in the rules shall limit or otherwise affect the inherent power of the court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the court.

Ground 5 43. The learned magistrate relied on evidence which was adduced by the parties. The Appellant had indeed confirmed that he was given land by the clan and this evidence was also adduced by his mother Joyce Micere Kimondo. Having quoted the case of In Re Estate of James Muriithi Kamau, it was not necessary to repeat the fact that issues of trust can be inferred depending on the circumstances of each case. There is no conclusive law that states that issues of trust cannot be determined in a succession cause. The appellant cannot state that the court relied on extraneous evidence.

Analysis and Determination 44. Having carefully considered the documents availed, the evidence adduced and the representations of the parties, the issues which I consider are for determination are as follows:a.Whether the petition was properly anchored in law and capable of being confirmed?b.What properties are properly transmittable under the estate of the deceased, Ngigi Njege?c.The question of the alleged trustd.How should the said properties be distributed?

Whether the petition was properly anchored in law 45. The history already set out of the process of obtaining the petition is itself rather unsavoury. The petitioner filed the petition disregarding the fact that he was not the person in the first line of preference entitled to do so. This was in breach of sections 38 and rules 7(7) and 26 of the PAR. Similarly, the protestor further muddied the waters by also applying, in a separate suit, for the grant and named himself the sole survivor. Thankfully, that grant was later revoked, leaving the grant to the petitioner in situ.

46. Section 38 of the LSA provides:“38. 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.

47. The deceased, Ngigi Njege, died on 9/4/1977. According to the Chief’s letter, his wife died on 31st August 1978, a little over a year later. The Chief referred to the certificates of death by number. Under section 35(1) and (5) of the LSA, the surviving wife was entitled to the deceased’s personal effects and a life interest. The life interest expired on her death in 1978 and the property ought to have devolved upon the deceased’s son.

48. Section 35(1) and (5) provide:“(1)Subject to the provisions of section 40, where an intestate has left one surviving spouse and a child or children, the surviving spouse shall be entitled to— (a) the personal and household effects of the deceased absolutely; and (b) a life interest in the whole residue of the net intestate estate: Provided that, if the surviving spouse is a widow, that interest shall determine upon her re-marriage to any person.……(5) Subject to the provisions of sections 41 and 42 and subject to any appointment or award made under this section, the whole residue of the net intestate estate shall on the death, or, in the case of a widow, re-marriage, of the surviving spouse, devolve upon the surviving child, if there be only one, or be equally divided among the surviving children.” (Emphasis added)

49. The evidence on record shows that the deceased was the registered owner of parcel Mwerua/Kiandai/383 as far back as 1961. There was no evidence that he transferred it to anyone before his death. It is also documented, and not denied, that the deceased was survived by his son, Kimondo Ngigi, two other children having predeceased him. The Chief’s letter shows that Kimondo Ngigi was about 80 years old at the time of the petition. In pursuance of section 38 LSA, the deceased’s property should have devolved upon Kimondo Ngigi.

50. At the time of applying for grant, and to enable the court to properly exercise its discretion, the Petitioner should have indicated the survivorship of Kimondo Kanyi. Rules 7(7) and 26 of the PAR provide that:“7. (7)Where a person who is not a person in the order of preference set out in section 66 of the Act seeks a grant of administration intestate he shall before the making of the grant furnish to the court such information as the court may require to enable it to exercise its discretion under that section and shall also satisfy the court that every person having a prior preference to a grant by virtue of that section has—(a)renounced his right generally to apply for a grant; or(b)consented in writing to the making of the grant to the applicant; or I been issued with a citation calling upon him either to renounce such right or to apply for a grant.”“26. (1) Letters of administration shall not be granted to any applicant without notice to every other person entitled in the same degree as or in priority to the applicant.(2) An application for a grant where the applicant is entitled in a degree equal to or lower than that of any other person shall, in default of renunciation, or written consent in Form 38 or 39, by all persons so entitled in equality or priority, be supported by an affidavit of the applicant and such other evidence as the court may require” (Emphasis added).

51. Thus, the petitioner ought to have obtained the consent or renunciation of Kimondo Ngigi who was entitled in higher priority to apply for the grant of his deceased’s father’s estate. This was not done, and the court ought not to have issued the grant pursuant to Rule 26. The consequence is that the court issued the grant to a person who was lower in the chain of entitlement or consanguinity, and without critical relevant information to guide it on the question of subsequent distribution..

52. I am aware that these issues were not argued by the parties from the perspective indicated here, which is the law. It may, however, be noted that the petitioner himself raised the point that the only property relevant to this succession cause was the property of Ngigi Njege, showing he was clearly cognizant that only that estate was in issue herein and not the estate of Kimondo Ngigi.

53. I have not seen any representations or documentation indicating whether or not there were succession proceedings relating to the estate of Kimondo Ngigi. Such proceedings, if any, were the proper forum to deal with the distribution of the land belonging to him – Kimondo Ngigi – whether by devolution, purchase or gift.

54. The proceedings herein have therefore been conflated by the fact that the parties have brought into these succession proceedings that commenced way back in 2001, elements of succession of the estate of the late Kimondo Ngigi, which properly ought to be the subject of separate succession proceedings. The trial court did not pick out these issues. The red herring fronted before the learned magistrate was that the estate of Kimondo Ngigi (Deceased) had been distributed or settled in certain ways including by way of gifts to two of his wives. The trial court was therefore more intent on ensuring that there was a fair distribution of all land under both estates, in respect of the three houses of Kimondo Ngigi.

55. There was the additional influence on the trial magistrate of fact that the House of Kimondo Ngigi’s third wife had not taken any role in seeking to make any claim from the estate of the deceased Ngigi Njege. This gave the impression that the third house had been properly taken care of by Kimondo Ngigi, and therefore all houses ought to be equally well settled,

What properties are properly transmittable under the estate of the deceased, Ngigi Njege? 56. As already pointed out, the evidence was clear that the only property of the deceased capable of being the subject of the succession proceedings was Mwerua/Kiandai/383. This constituted the entire estate of the deceased at the time of his death. There is consensus that the deceased died intestate.

57. Section 3 LSA defines “estate” as follows:“‘estate’ means the free property of the deceased person”Free property is defined as that property of the deceased which he was legally competent to freely dispose during his lifetime. Accordingly, the law permits a succession cause concerning an estate to concern mothing but the free property of the deceased, and only it. Other properties belonging to other estates cannot be somehow be infused or interlinked into the estate of the deceased, unless with the consensus of parties, and the approval of the court.

58. The trial magistrate, as already pointed out, was caught in the web of conflation of the different estates being addressed by the parties. For example, whilst finding at pg 4 that:“It is very clear that the land in question belonged to one Ngige Njege who is a grandfather to the petitioner and protestor ”And that:“…..at the time of commencement of these proceedings the son of the deceased Kimondo was alive and the sons decided not to involve him or even mention himHe later on at pg 6 goes on to state:“It is clear that the only title or land available for distribution Mwerua/Kiandai/383 which is this court’s humble finding would go to the wife who was not given land ie. Agnes Muthoni [wife of Kimondo Ngigi]. If she were alive tis court would have given her the land absolutely as it appears that is what there husband. Kimondo Ngigi could have done by way of transfer to deal with it as she wishes with the household”

59. It was a misdirection for the court to find that the deceased’s property could devolve directly to one of the deceased’s son’s wives, on the ground that that is what the said son may have desired.

60. In coming to its conclusions, the trial court took into account the properties belonging to Kimondo Ngige, and the fact that his wife Agnes Muthoni had not been gifted any land by her husband. The court noted that Mutithi/Chumbiti 3199 had been gifted to Teresia Muthoni by Kimondo Ngigi (pg 5 of judgment).

61. These were not proper factors to be taken into account insofar as the estate of the deceased was concerned, as that amounted to conflating the succession causes in two distinct estates.

The question of the alleged trust 62. The trial court stated an issue for determination on trusts as follows:“The issue for determination is distribution or whether or not the petitioner held land parcel Mwerua/Kiandai/384 in trust for the household of Joyce Micere.” (pg 4 judgment)

63. Oi have carefully read the learned magistrate’s judgment in search for his finding on this issue. I see no finding. Instead, the learned Magistrate stated( pg 6 judgment) that he was:“…not convinced that the petitioner Harrison Ngigi Kimondo was given the land by the clan.…. and it appears the land was given to the father and transferred to him recently in the(sic) 3. 5.82 and as it is clear the said Ngigi Njage had only one son…”

64. I do not find that the trial court made any concrete finding on this issue; and indeed the trial court further said :I would not want to deal with land parcels Mutithi/ Chumbiri/2775, LR Mwerua/ Kiandai/384 but will say that Joyce Micere and her children should ask for land from Harrison Ngigi Kimondo…”

65. I perused the Green Card for the said LR 384, and noted that the first entry was on 4. 2.1961 in the name of Ngigi Kimondo and transferred to Harrison Ngige Kimondo on 31. 5.1982. The testimony of the petitioner was that the land was given to Ngigi to hold on trust for their house. The testimony of Harrison Ngigi was that he was given the land by the clan, and that in 1961 he was about 7 years old. The testimony of Joyce Micere was that her son Harrison Ngigi was given the land by the clan as her first born.

66. In light of the evidence, there is insufficient proof in my view to make a firm finding that the said property was held in trust.

67. In any event, the present proceedings concern the estate of the deceased, Ngigi Njege, and not Kimondo Ngigi and I doubt that thisese proceedings are the correct forum to determine whether or not there was a trust in respect of that property.

How should the said deceased’s property be distributed? 68. Given my above findings, I think the proper beneficiary in whom the property Mwerua/Kiandai/383 ought to properly have devolved is Kimondo Ngige, the father of the petitioner and the protestor who survived the deceased Ngige Njege. Strictly speaking, his estate should have been the subject of succession proceedings, and it is in those proceedings that the distribution was, or is, capable of being concluded. The said property would then devolve upon his surviving children and their children, most of whom are living.

69. In those proceedings, it will or would be possible for the parties to exercise the right to bring previous benefits given or settled by the deceased, Kimondo Ngigi, into account pursuant to section 42 of the LSA.

70. Alternatively, the parties would be entitled to enter into any agreement to which the court could consent if, for whatever reason, it is not possible to prosecute the proceedings relating to the estate of Kimondo Ngigi.

71. In any such proceedings the survivors of the deceased, namely, his living wives or children from each of the three Houses would be entitled to apply for grant.

72. Given that this matter has been on-going since 2001, the parties shall move the court within sixty (60) days, and proceed expeditiously, failing which this file will be closed, at the discretion of the court.

Disposition 73. Given the foregoing, and for the reasons stated, I find that the trial court conflated the estate of the deceased with that of the deceased’s son in its judgment. The judgment cannot therefore stand and is hereby set aside in its entirety.

74. On that basis, the appeal succeeds.

75. This being a family matter, there shall be no order as to costs

76. Orders accordingly.

DELIVERED AT KERUGOYA ON THIS 2ND DAY OF JUNE, 2022. ..........................................R MWONGOJUDGEDelivered in the presence of:1. G. Kahiga holding brief for Waweru for the Respondent2. No Representation for Makworo for the Appellant3. Murage Court Assistant