[2022] KEHC 14990 (KLR)

In re Estate of Peter Gachiri Ichura (Deceased) (Succession Appeal 17 of 2019) [2022] KEHC 14990 (KLR) (2 November 2022) (Judgment)

Neutral citation: [2022] KEHC 14990 (KLR)

Republic of Kenya

In the High Court at Nyeri

Succession Appeal 17 of 2019

JN Njagi, J

November 2, 2022

IN THE MATTER OF THE ESTATE OF PETER GACHIRI ICHURA (DECEASED)

Between

Serah Wairimu Gachiri

1st Appellant

Elizabeth Wanjiru Wanderi

2nd Appellant

Lydia Njoki Gachiri

3rd Appellant

Evans Maina Gachiri

4th Appellant

Zablon Gathua Gachiri

5th Appellant

Tabith Muthoni Gachiri

6th Appellant

John Nderitu Gachiri

7th Appellant

Samuel Kingori Gachiri

8th Appellant

and

Mary Njoki Gachiri

Respondent

(Being an appeal from the Judgment and decree of Hon. R. Kefa, SRM, in Nyeri CM`s Court Succession Cause No. 275 of 2018 delivered on 25th November 2019)

Judgment

1. The respondent who is the petitioner in this cause filed summons for confirmation of grant proposing that the estate of the deceased be distributed in accordance with a supposed oral will of the deceased. The appellants herein were opposed to that mode of distribution on the ground that there was no such oral will made by the deceased. The 1st appellant filed a protest and proposed that the estate be shared equally amongst the 8 children of the deceased and herself.The protest proceeded by way of viva voce evidence after which the court made a determination that the deceased had made an oral will on February 2, 2009 expressing his final wishes on how his property was to be distributed, contents of which had been reduced down into writing. On that basis the trial court proceeded to distribute the estate as per the oral declarations of the deceased as follows:Nyeri/Mweiga/99 - Mary Njoki GachiriMweiga Block 5/Muthuini/445 - Serah WairimuMweiga Block 5/Muthuini/152 - Moses Nyota NgunjiriNanyuki/Marura Block 2/113 (Matanya Marura)- Lawrence Gitahi Gachiri

2. The appellants were aggrieved by the decision of the court and filed the instant appeal on the grounds that:(a)The learned magistrate erred in law and in fact in disregarding and failing to consider the weight of the evidence of the protestor.(b)The decision of the learned magistrate was and is against the weight of the evidence knowing very well that there was no oral will as the succession cause was filed intestate.(c)The decision of the learned magistrate was biased as the learned magistrate failed to appreciate and misinterpreted Section 40(1) of the Law of Succession Act as there is only one child in the 1st house while there are 8 children including the mother in the 2nd house.(d)The learned magistrate erred in law and fact by failing to find that some of the persons put by the petitioner in the said confirmation of grant dated May 17, 2014 to inherit the deceased`s estate are not dependants as per Section 29 of the Law of Succession Act thus are not entitled to inherit and leaving out the legitimate beneficiaries.(e)The learned magistrate erred in law and in fact in failing to consider the contents of the appellants’ evidence documents and submissions which had been filed before making her judgment.

The Case for the Respondent/petitioner 3. It was the case for the petitioner/respondent that she is a daughter of the deceased from the first wife who is deceased. That she was the only child. That the 1st appellant is the 2nd wife to the deceased. That on the February 2, 2009 the deceased called his family members to a meeting at his home which was attended by many of his close family members and relatives. That the deceased told them how his estate was to be distributed. That the respondent was to get the Mweiga land while the 1st appellant and her children was to get the 15 acres Muthuini land. That the wishes were written down by Francis Gathii (now deceased). The appellants were in attendance of the meeting. They later disowned the contents of what was written down. The deceased died 20 days later after the meeting. She produced the said document as exhibit, Pexh1.

4. The respondent called one witness, Esther Wamaitha, who testified that she was a niece to the deceased. That on February 2, 2009 she attended a family gathering that had been called by the deceased. That the deceased told them of his wishes on how he wanted his property to be distributed. His wishes were written down by Gathii. The names of those who were present were taken down but they did not sign the document. The deceased died 2 weeks later.

The Case for the Appellants/protestors 5. It was the case for the appellants that the deceased had 2 wives. The 1st wife is deceased and had one issue, the respondent. The 2nd wife who was the protestor in the matter, is a life and has 7 children. The protestor proposed that the estate be distributed equally between the 8 children of the deceased and herself. She gave evidence and denied that the deceased had left any oral will. She denied attending any meeting summoned by the deceased on February 2, 2009.

6. The protestor adopted her affidavit of protest as her evidence in court. She stated in the said affidavit that some of the people that the respondent proposed to give part of the estate were not children of the deceased and were not entitled to share in the estate. That the respondent proposed to give Title No Mweiga/Block 5/Muthuini/152 to moses Nyota Ngunjiri who is her son -in-law when he has no entitlement to the estate. That she proposed to give Title No Nanyuki/MaruraBlock 2/113 to her grandson Lawrence Gitahi Gachiri who does not have a priority in the estate of the deceased and is not entitled to the share of the estate. That the proposal to give the estate to strangers is calculated to rob the rightful dependants of their entitlement to the estate. The protestor sought that the estate be shared by the lawful beneficiaries as follows:Serah Wairimu Gachiri -widowMary Njoki Gachiri - daughterElizabeth Wanjiru Wanderi – daughter-in-lawLydia Njoki Gachiri - daughterEvans Maina Gachiri - sonZablon Gathua Gachiri - sonTabitha Muthoni Gachiri - sonJohn Nderitu Gachiri - sonSamuel Kingori Gachiri - son

The Appellant’s Submissions 7. The advocates for the appellants submitted that the document produced in court as the will of the deceased, Pexh1 lacks authenticity as it is not the original document and does not bear the signature of the person purported to have authored it. That it is not signed by those said to have been present thereby giving credence to the evidence that the appellants were not in attendance. Counsel submitted that as the maker of the document did not testify in the case the document was not admissible. They relied on section 66 of the Evidence Act in support of that proposition and cited the case of Mugo Mungai & 4 Others v Official Receiver & Provisional Liquidator (Capital Finance Limited & Pioneer & 2 Others)(2019) eKLR.

8. It was submitted that the petition was filed as an intestate succession and not by way of testate succession. That the succession cause should have proceeded as an intestate succession. That the deceased was polygamous and therefore the estate should have been distributed in accordance with section 40 of the Law of Succession Act. That the beneficiaries of the estate are the children of the deceased and the surviving widow who should get equal shares. Counsel relied on the decision inIn re Estate of Kimitei Cherop (Deceased) (2021) eKLR.

9. The advocates for the respondent did not file any submissions.

Analysis and Determination 10. Being a first Appeal, the court relies on a number of principles as set out in Selle and Another vs Associated Motor Boat Company Ltd & Others [1968] 1EA 123:“…..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.”

11. It was also held in Mwangi vs Wambugu[1984] KLR 453 that an appellate court will not normally interfere with a finding of fact by the trial court unless such finding is based on no evidence or on a misapprehension of the evidence; or where the court has clearly failed on some material point to take into account of particular circumstances or probabilities material to an estimate of the evidence.

12. The issues for determination in the appeal are:(1)Whether there was an oral will.(2)Whether the court adopted the right procedure in admitting evidence of oral will in an intestate petition.(3)How the estate ought to be distributed.

Whether there was an oral will 13. The respondent alleged that the deceased left an oral will whose contents were reduced down into writing.

14. The making of oral wills is provided for under section 9 of the Law of Succession Act that provides that:No oral will shall be valid unless:a.It is made before two or more competent witnesses andb.The testator dies within a period of three months from the date of making the will.

15. While discussing the requirements of a valid oral will, Musyoka J in Re Estate of Evanson Mbugua Thong’ote (Deceased)[2016] eKLR stated that:-An oral will is made simply by the making of utterances orally relating to disposal of property. In asserting whether the deceased had made a valid oral will, it needs to be considered first whether there was an utterance of the will. The question being whether there was an oral utterance of the terms of the will. The Honourable Judge continued…..The other consideration is that the utterance ought to be made in the presence of two or more persons.

16. The trial court considered whether the deceased left an oral will and in doing so referred to section 10 of the Law of Succession Act that provides that:Proof of oral willsIf there is any conflict in evidence of witnesses as to what was said by the deceased in making an oral will, the oral will shall not be valid except so far as its contents are proved by a competent independent witness.

17. The court then considered the evidence adduced in court in proof of the oral will and held that the contents of the oral will was proved by an independent witness, Esther Wamaitha, who was present when the deceased made his wishes. That the deceased died after two weeks. Therefore, that the will was valid in accordance with section 9 of the Law of Succession Act. The question then is whether the trial magistrate was right in holding that there was a valid oral will.

18. The case for the respondent was based on the assertion that the declaration by the deceased was reduced down into writing. It has however to be noted in the first place that what was produced in court in proof of the oral will was a photocopy of the alleged document. There was no explanation as to where the original document was. Moreover, it was not signed by the author who is now said to be deceased. Neither was it signed by the respondent and any of the people who were said to have attended the meeting. The procedure under section 68 of the Evidence Act dealing with production of secondary evidence was not followed before the document was produced in court as exhibit. In view of that, I am in agreement with counsel for the appellants that the document was wrongly admitted in court as exhibit.

19. The trial court found that the deceased summoned a meeting at his home on February 2, 2009 when he made his wishes known to his family members. The question is whether such a meeting ever took place.

20. The 1st appellant said that she and her children did not attend such a meeting. The respondent in her evidence in court stated that those who were present in the meeting signed the impugned document. It is however apparent that the document was not signed by anybody. The witness was therefore lying that the appellants signed the document. Esther Wamaitha who was said to be an independent witness never mentioned that the 1st appellant was in attendance. She in fact could not even remember the 1st appellant`s name. I wonder whether she was that close to the family for her to have been invited to the meeting. There was no sufficient evidence to prove that the said meeting took place.

21. Even if I were to believe that the meeting took place, it is not clear from the evidence on what the deceased stated. Esther Wamaitha whom the trial court relied on as an independent witness in the case did not give out the full statement and terms of the will that was uttered by the deceased. She did not adopt her written statement when she testified in court. The court can only go by the statement that she gave in court. She only mentioned that the deceased gave some parcels of land to the respondent, the 2nd wife and to a person called Nyota. In my view her evidence fell short of proving that the deceased made an oral will as she could not give the full terms of the will. The witness seemed to have relied on the impugned document which as already stated was not credible.

22. The respondent in her evidence in court only mentioned the deceased as having distributed the Mweiga land and the Muthuini land. She did not state whether the deceased mentioned the other parcels of land. She similarly did not adopt her written statement when she testified in court. The court can only go by the statement that she gave in court. She also seemed to rely on the impugned document on the distribution of the property. I do not think that she was a credible witness. The document she heavily relied on in the case might as well be a forgery.

Whether right procedure was adopted 23. It was explained in the case of In the Matter of the Estate of Elizabeth Wanjiku Munge (Deceased) (2015) eKLR that where it is alleged that the deceased died testate and that there existed a valid will, the person named in the will as executor petitions for a grant of probate. Rule 13 of the Probate and Administration Rules governs applications for grant of probate where the deceased left an oral will. The said provision states as follows:“(1)An application for proof of an oral will or letters of administration with a written record of the terms of an oral will annexed shall be by a petition in Form 78 or 92 and be supported by such evidence on affidavit in Form 4 or 6 as the applicant can adduce as to the matters referred to in rule 7, so far as relevant, together with evidence as to-(a)The making and date of the will;(b)The terms of the will;(c)The names and addresses of any executors appointed;(d)The names and addresses of all the alleged witnesses before whom the will was made;(e)…

24. In this matter the petitioner did not petition for grant of probate as set out in Rule 13 of the Probate and administration Rulesbut filed for grant of letters of administration intestate, meaning that there was no will left by the deceased. The impugned document only cropped up when the 1st appellant filed a protest. It was wrong procedure for the petitioner to have turned an intestate petition to a testate petition midway during the trial. The petition should have proceeded as an intestate petition all the way to the end. The trial court thereby adopted the wrong procedure when it admitted evidence of an alleged oral will in an intestate petition. Moreso, the court fell into error in distributing the estate in accordance with an oral will when there was no credible evidence to prove the oral will.

25. I view of the foregoing, I find the deceased did not leave an oral will.

Distribution of the estate 26. The deceased was polygamous. The distribution of the estate of a polygamous person is governed by section 40 of the Law of Succession Act that provides that:‘‘Where the intestate was polygamous1. Where an intestate has married more than once under any system of law permitting polygamy, his personal and household effects and the residue of the net intestate estate shall, in the first instance, be divided among the houses according to the number of children in each house, but also adding any wife surviving him as an additional unit to the number of children.2. The distribution of the personal and household effects and the residue of the net intestate estate within each house shall then be in accordance with the rules set out in sections 35 to 38. ’’

27. In the instant case the 1st house is represented by one child, the respondent. In the 2nd house there are 7 children and a surviving spouse. There is therefore one unit in the 1st house and 8 units in the 2nd house. The proposal for the 1st appellant was for the estate to be shared equally by all the children of the deceased and the surviving spouse.

28. The respondent though admitting that the deceased was survived by herself and the spouse from the 2nd house and her children, she added 2 more beneficiaries to the estate- Moses Nyota Ngunjiri and Lawrence Gitari Gachiri- on the ground that they were beneficiaries of the estate by virtue of the deceased`s oral will. Since the finding of this court is that there was no such a will, the two are not beneficiaries to the estate of the deceased as they are neither his children nor his dependants. I am in agreement with the appellants that the inclusion of the said strangers in the distribution of the estate of the deceased was a mischievous attempt to disinherit the lawful beneficiaries.

29. InScholastic Ndululu Sura versus Agnes Nthenya Sura[2019] eKLR, the Court of Appeal held as follows: -‘‘It is therefore evident, that, although section 40 of the Law of Succession Act provides a general provision for the distribution of the estate of a polygamous deceased person, the court has discretion to take into account factual circumstances of the particular case that may be relevant in ensuring equitable and fair distribution of the estate.’’

30. In the instant case I do not see any factual circumstances to warrant departure from the provisions of section 40 of the Law of Succession Act. Since there is only one beneficiary in the 1st house, I am of the considered view that the estate should be shared equally between all the children of the deceased (with Elizabeth Wanjiru Wanderi taking the share of her late husband) and the surviving spouse, the 1st appellant.

31. I view of the foregoing, I do find merit in the appeal. Consequently, the distribution of the estate as per the judgment of the trial court is set aside. I order that the estate be shared equally between the beneficiaries as set out in paragraph 6 above.

32. 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:Maina hold brief for Kibira for AppellantsKibuka: for RespondentCourt Assistant: Kinyua30 days R/A.