[2017] KEHC 9473 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

MILIMANI LAW COURTS

FAMILY DIVISION

CIVIL APPEAL NO. 107 OF 2014

IN THE MATTER OF THE ESTATE OF STEPHEN GICHIRU GETATHA (DECEASED)

JOHN KARIUKI GICHIRU.....................................................APPELLANT

VERSUS

ISAAC NJOROGE GICHIRU......................................1ST RESPONDENT

MWAGO GICHIRU.....................................................2ND RESPONDENT

ESTATER WAIRIMU GATIMU..................................3RD RESPONDENT

BEATRICE WANJIRU MWEAGA.............................4TH RESPONDENT

(Being an appeal from The judgment delivered by the Hon. Mr. E.O. Owino Chief Magistrate on the 29th October 1999 in succession Cause No. 295 of 1993)

JUDGMENT

1. The deceased Stephen Gichiru Getacha died intestate on 28th July 1984. He had two wives, Wangui Gichiru (deceased) and Wanini Gichiru. In Wangui’s house were three sons (the 1st and 2nd respondents and the late husband of the 3rd respondent) and five daughters. In Wanini’s house were two sons (the appellant included) and one daughter. The appellant petitioned the Chief Magistrate’s Court at Thika in Succession Cause No. 295 of 1993 for the grant of letters of administration intestate. On 21st June 1996 the grant was issued to him. He subsequently applied to have the grant confirmed, and proposed that the only estate property in the estate of the deceased (LR No. Chania/Mataara/926 measuring about 4. 18Ha or about (10. 25 acres) be given to him as he was the only beneficiary who had not benefitted; that the rest of the sons had been gifted by the deceased before his death.

2. The 1st and 2nd respondents swore a replying affidavit filed on 22nd May 1997 to say that before the deceased died he had shared the parcel among his children as follows:-

(a) 1st respondent – 2 acres;

(b) 2nd respondent – 2 acres;

(c) 4th respondent (who is widow of deceased’s son Mwega Gichiru) – 2 acres;

(d) appellant – 2 acres;

(e) 3rd respondent – 2 acres; and

(f) Rachel Wangari Gichuru (the deceased’s unmarried daughter) – 0. 25 acres.

3. The dispute was heard orally by the trial court to determine how the estate would be distributed. The court agreed with the respondent’s evidence and confirmed the grant on basis of their case.

4. The appellant was aggrieved by the decision and filed this appeal. He complained that the trial court erred when it did not find that the deceased had shared his estate and left only this parcel which was meant for him as he had not received any intervivos gift. There was no dispute that this parcel formed part of 40 acres which, during the deceased’s time, was subdivided and shared to give the deceased 10. 25 acres (the present parcel comprised in parcel 926), leaving portions 925, 927 and 928 which went to the 1st respondent, Gatimu Gichiru and 2nd respondent, respectively. The respondents’ case was that the 40 acres were jointly bought by the respondents, the deceased and Gatimu Gichiru; that each had equal share; and that before the deceased died he gave each owner his portion and got it transferred. The applicant’s case was that the whole 40 acres belonged to the deceased who gifted his sons leaving him to inherit the disputed land; that he was at the time of gifting not married, and that was why he was not given land. The trial court heard both sides and found for the respondents. The appellant faulted this finding, and stated, as part of his grounds of appeal, that the court fell into error when it did not consider that there was no evidence to support the alleged purchase by the respondents and Gatimu Gichiru.

5. The appeal was disposed of by way of written submissions. Mr Irungu Mwangi was for the appellant and Mr Chege for the respondents. This is a first appeal. The court is aware of its duty to re-evaluate the evidence on record and come to its own conclusions, while keeping in mind that the trial court had the advantage of seeing and hearing the witnesses testify, observe their demeanour and assess their credibility (Selle & Another –v- Associated Motor Boat Co. Ltd & Others [1968] EA 123). The issue for determination was whether, given the evidence on record, the lower court fairly and equitably distributed the estate of the deceased among its beneficiaries. To put it differently, the question was whether, on the evidence on record, the share given to the appellant was fair and equitable.

6. Did the evidence support the appellant’s contention that the appellant was the only son who had not been provided for by the deceased, and therefore was entitled to the entire LR Chania/Mataara/629? According to the appellant, the deceased gave away land (from the 40 acres) to the 1st and 2nd respondents and the late husband of the 3rd respondent in 1977. The appellant was then 31 but not married. The deceased registered this parcel in his name promising that it belonged to the appellant. He (the appellant) was cross-examined to admit that from the time the deceased was alive all his children were cultivating the disputed land. They still do. He was supported in his evidence by his mother Wanini Gichiru, a relative Francis Nganga Gatura and sister Rachel Wangari Gichiru. On their side, the 1st and 2nd respondents testified that the deceased left only this parcel as his estate and that the entire family always cultivated it. They denied that the deceased gave each of them 10 acres of land, and said that they, the deceased and their brother Gitimu Gichiru jointly bought 40 acres which was registered as Chania/Mataara/482. Each was entitled to 10 acres. The land was later subdivided to give each of them 10 acres. This is how the deceased became the owner of the disputed land. The 1st respondent was left to take care of this land and to give each son 2 acres and 0. 25 acres to Rachel Wangari Gichiru. The purchases, they said, happened during consolidation and were bought as fragments. No writing was done during the process. The 3rd respondent gave similar evidence.

7. The lower court considered this evidence and accepted the version of the respondents. The court had the opportunity to hear the parties and assess their credibility. No reason has been given why this court should disturb that finding.

8. It follows that the appellant’s claim that all the disputed land was to go to him, the respondents having been provided for by the deceased during his lifetime, was not supported by evidence and is discounted.

9. The grant issued to the appellant is hereby confirmed on the basis that the appellant, the 1st, 2nd and 3rd and 4th respondents shall each get 2 acres. Rachel Wangari Gichiri shall get 0. 25 acres.

10. The appeal is dismissed but, since this is a family dispute, I make no order as to costs.

DATED, DELIVERED and SIGNED at NAIROBI this 5TH OCTOBER 2017

A.O. MUCHELULE

JUDGE