https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12194

 **REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT KERUGOYA** **CIVIL APPEAL NO. E005 OF 2024** **JESIDA KAMORI MUTHEE…….…….……………………………APPELLANT** **VERSUS** **ROSEMARY WANJIKU WAWERU...............................................RESPONDENT** *(An appeal from the Ruling of Hon. E.O Wambo (P.M) in Kerugoya Succession Cause No. 309 of 2001 delivered on 26/5/2023)* **JUDGMENT** 1. By Summons dated 29/11/2017, the Respondent herein sought the revocation of the grant of letters of administration issued to the Appellant herein on 5.4.2001 and confirmed on 7.2.2008 on the ground that the grant was obtained fraudulently by concealment from court of the fact that the Respondent was a daughter of the deceased and therefore a beneficiary thereto. She could not protest to the confirmation of the grant because she was unaware of these proceedings. 2. The Appellant swore a replying affidavit on 8/3/2018 refuting the contention that the Respondent was a daughter of the deceased, and listed herself and her 5 children as the only beneficiaries of the estate. 3. Beth Wanjiku Kinyua, a daughter-in-law of the deceased swore a replying affidavit on 5/9/2018 in opposition to the application. 4. In its impugned Ruling, the trial court rendered: *“The evidence on record is clear that the applicant ROSEMARY WANJIRU WAWERU was a child of the from the first wife JANE RUGURU MUTHEE as per the evidence of JOSEPH KARIMI KAMAU who was a cousin to the deceased. The applicant to this court has been able to prove on a balance of probability at she was a daughter of the deceased and one will not lose her rights to inherit simply because she was raised elsewhere by an uncle after the demise her mother. This court could not fail to notice that the Petitioner testified that she did not find any wife with the deceased for sure she could not as the said JANE UGURU MUTHEE was dead by the time she was married. But ironically she testified that by the time she was married the deceased, there was a house in the homestead. Surely, who did the house belong to. This Court is not convinced that the Petitioner was not aware of the deceased earlier marriage and existence of the applicant. ROSEMARY WANJIKU WAMBU having stated as above, I find the application summons dated 29th November, 2017 has merit and revoke the grant issued on 5.4.2001 and confirmed 7.2.2008. The certificate for confirmation is also set aside. I proceed to issue a fresh grant to the following jointly: JESIDA KAMORI MUTHEE and ROSEMARY WANJIKU WAWERU. Taking this court to the mode of distribution as it appears that the daughter this estate were being given 0.5 acres each will consider her as such and allocate her 0.5 acres but from the share of JESIDA KAMORI MUTHEE who d been allocated 1.3 acres so she gets remains 0.7 acres ordinarily as a wife I would have given her life interest but this is a 2001 file. It will not be the interest of justice to interfere a lot with what is on the ground I shall not interfere in any way with the shares of the sons who each will remain with 1.5 acres. For the avoidance of doubt the estate is distributed as follows:* *KABARE/GACHIGI/452* *JESIDA KAMORI - 0.7 ACRES* *PETER KARIMI MUTHEE - 1.5 ACRES* *JACKSON MURIUKI MUTHEE - 1.5 ACRES* *BETH WANJIRA MUTHEE - 0.5 ACRES* *LILIAN WAMBUI MUTHEE - 0.5 ACRES* *ROSEMARY WANJIKU WAWERU - 0.5 ACRES* *CAROLINE WANJIRU KINYUA) - 1.5 ACRES* *METRACIA WANGARI KINYUA)* *VIVIAN NYAGUTHII KINYUA)* *TONY BLAIR MUTHII KINYUA)* *CAROLYNE WANJIRU KINYUA and JESIDA KAMORI MUTHEE to hold in trust the benefit of MATERICO WANGARI KINYUA, VIVIAN NYAGUTHII KINYUA, TONY BLAIR MUTHII [minors].”* **The Appeal** 1. On appeal, the Appellant filed her memorandum of appeal dated 30/4/2024 raising 6 grounds as follows: 1. *The learned trial Magistrate erred in law and fact by holding that the Applicant was the daughter of the deceased contrary to the evidence tendered in court. A miscarriage of justice was thereby occasioned.* 2. *The learned trial Magistrate erred in law and fact by giving the Applicant a portion measuring 0.20 Ha out of L.R KABARE /GACHIGI/452 when there was no evidence tendered by the Applicant to claim the said parcel. A miscarriage of Justice was thereby occasioned.* 3. *The learned trial Magistrate erred in law and fact by revoking the grant when there was no evidence tendered to prove that the grant had been obtained fraudulently by making false statement or concealment of material to the court. A miscarriage of Justice was thereby occasioned.* 4. *The learned trial Magistrate erred in law and fact by revoking the grant and the same time confirming the grant without parties filing an application for the confirmation of grant. A miscarriage of justice was thereby occasioned.* 5. *The learned trial Magistrate erred in law and fact by misinterpreting the law of succession Act and particularly the sections dealing with the distribution of the estate of the deceased. A miscarriage of Justice was thereby occasioned.* 6. *The decision and ruling of the learned trial Magistrate is not only flawed by error on the record but total misunderstanding of the legal principal involves in law of succession Act which deals with distribution of the estate of the deceased. A miscarriage of Justice was thereby occasioned.* **Duty of the court** 1. This being a first appeal, this court is duty bound to delve at some length into factual details and revisit the facts as presented in the trial court, analyse the same and arrive at its own independent conclusions, but always remembering that, the trial court had the advantage of seeing the witnesses testify. (See *Selle v Associated Motor Boat Co. & others [1968] E.A. 123*). **Oral Evidence** 1. PW1 Rosemary Wanjiku Waweru, adopted her supporting affidavit dated 29/11/ 2017 and the statement dated 8/3/2019 as her evidence in chief. She testified that, *“She didn’t tell me when filing. I am a daughter of the deceased. Jesida does not. She used to refuse me. I went to visit my father with my uncle. I was going there when my father was there.”* 2. On cross examination, she stated that, *“I am a daughter of the deceased. I was born in 1975. My mother passed on when I was 8 months. I have ever stayed with Jesida. I was raised by Peter Gichobi Wambui an uncle. I have never utilized the land. I never obtained identity card with my father. I took the ID with my husband’s name. My husband is Vincent Waweru Gichobi. I was married customarily. No bride price has been paid. I got married in 1991. We went later to talk to my father. Muthee Mwai took care of me. He used to pay my school fees. Went Nyagithuci Primary school. I have no receipts for school fees. I have a birth certificate. The birth certificate is for 2018. From 1975 I had no birth certificate. I got another birth certificate which got lost. I was not given any portion of land by my father during his lifetime. I used to visit him at Kerugoya General hospital in 1998. He had a stomach problem. He was in the hospital for 3 days. I went to hospital only once. He died in 28th January, 2000. He was in the same hospital. I didn’t participate in the burial. I didn’t contribute to the funeral. I attended but I stood on the road. I was not in the mortuary. I would meet him at my uncle’s place and give him some money.”* 3. PW2 Jackson Mwai, the Chief of Gachigi Location Gichugu West, testified that, *“I did the introduction letter dated 15th November, 2017. Rosemary came to my office when she wanted to claim. She had attended a burial in which she realized that she had not been involved. I did investigation and realized she was a daughter of the deceased. She might have been chased away. I wrote the letter.”* 4. On cross examination, he stated that, *“I am the Chief of the Location. I was employed in 2012. I was never an assistant chief. They fall in my jurisdiction. Rosemary is not my relative. My father is Peterson Mwai Wambu. Gichobi Wambu is not my relative. I don’t have. Gichobi Wambu. I don’t have any knowledge of the relation. In my letter I did not indicate my property it was just introduction. I did investigation. The clan Unjiru of Mbari of Matu. I visited several wazees. The ones who are neighbours. They visited the office. I write a letter. The estate belongs to Muthee Mwai and not Richard Kamunde is the same person. I did not put alias. I did investigation. I didn’t indicate the ID number. I did not request for death certificate. After new relocation the area went to Kirima. The details are missing in my letter. At that time there were differences between the family. There was a lot of problem. Peter Githinji is the area Assistant Chief. The information was not from Mary Wanjiru. The application was filed 4 days after obtaining the document from me. The deceased died in 2000. I did not indicate in my letter. I indicate all the beneficiaries. I was not doing the letter from the court process.”* 5. PW3 Peter Gichobi, adopted his statement dated 8th March 2019 as his evidence in chief. 6. On cross examination, he stated that, *“I was the one staying with Rose. She was born in 1975. The mother was married in 1974 under Kikuyu customs. Dowry was paid to the parents. The parents were Micheni was the mother. Waruguru was my sister. Rosemary Wanjiku had a birth certificate. It was a long time ago 1975. The mother died when she was 8 months. The grandmother raised her up. She raised her for a short time and brought her to me. The father died in 1980s. She did not ask for land. I used to visit the deceased at Kerugoya. We used to talk before he came to the hospital. I also came to visit at Kerugoya. He had sickness in his body. She is married. The husband is called Waweru. Rosemary I don’t know when she was married. I can’t remember if she was married before the death of the deceased. Rosemary has not used the land. She stays at her husband home. There were no photographs. Rosemary has children. Two children. From 2001 to 2018 she did not know there was a succession matter.”* 7. In re-examination, he stated that, *“Rosemary was supported by the deceased. I am not sure of the year and date he died.”* 8. RW1 Daniel Murigo Kamau, adopted his statement dated 8/3/2019 as his evidence in chief. He testified that, *“Rosemary Wanjiru Waweru is my sister. Muthee Mwai deceased was my cousin.”* 9. On cross examination, he stated that, *“Jane Ruguru Muthee was married by the deceased in 1975. Dowry was paid. I was present. I don’t know when she was born. The mother died in 1975 and she was born in 1978. Jesida Kamori refused her and her uncles. Jesida Kamori Muthee was married 1975. Jane Ruguru was alive when Jesida Kamori. Jane was married early. Jesida Kamori muthee. We are age mates. I was born in 1940. You should deduct 18 years. The deceased older than me with 1 year. He married in 1975. He was not married all that way. She had the name of the deceased. She was named Rosemary Wanjiru Muthee. I have seen her identity card. I don’t know her full name as per the birth certificate. He educated her at her uncle’s place. She was at Nyagithuci Primary. She did not go to secondary school. She has never utilized the land. She took care of him when he was sick. She used to visit him in the hospital. I visited him in the hospital. I can’t remember the year. He died at Kerugoya not Mweiga hospital. I never went to see him at Kenyatta hospital. I attended the funeral. I didn’t participate in funeral arrangement. We used to fold in the blanket and bury. Arrangement were not there. This was in 1955. He died in the year 2000. Rose attended the burial. In this photo Rose is not there. I am not there. This is a coffin not a blanket. I was in Kangaita. I first heard of the burial. Using a blanket. Rosemary is not married but she has a husband. She is single. I am saying what I know. I used to do that with Rosemary many times. He had a boil and went for operation and never remarried. I know the children of Tabitha Kamori Muthee. She had 5 children: Kanjugi - a son, Betha, Kariuki, Kinyua, Wangui. I don’t know the registration number of their identity cards. It is 6.6 acres. Rosemary stay with another man. They have children 3 in number. The man has land.”* 10. In re-examination, he stated that, *“I did not attend the burial. I was at work. He died at Kerugoya hospital. I went to the Ruracio.”* 11. RW2 Justin Muriuki Rukenya, testified that, *“I am from Gachigi Sub location. I am the sub chief of the Location from 1994 to last year July 2020. I knew one Muthii Mwai he came from my Sub location. The wife was Jesida. Kamori Muthee. She had 5 children. 3 sons, 2 daughters namely: Jackson Muriuki, Francis Kinyua, Peter Karimi. Daughters Were Beth Wanjira, Lillian Wambui. I am not aware of another wife. When the deceased passed on I attended the burial and issued the burial permit. Before he passed on I witnessed him sub divide KABARE/GACIGI/452. He sub-divided into 4 portions. Each son 1 ½ acres balance himself. Wife and daughters it was 1.7 acres. The land was approximately 6 acres. I witnessed before the elders. The land was sub divided in 1978. None came to claim. There was no dispute. I introduced Jesida to the chief. Jackson M. Ndathi who was the chief of that area. Jackson Kariuki Mwai was employed as chief of Gachigi Location in 2002. It was a sub location before then. Jackson M. Ndathi became the chief of Kirima Location. I know Jackson Kariuki Mwai is the current chief. I know Rosemary Waweru she is a stranger in that location. I have never seen her before. She used to stay in home brother to the father Jackson Kariuki Mwai (current chief). The brother is Waweru Kabue. I have no further details. Francis Kinyua Muthee was married to Beth Wanjiku they had 2 children. They separated in 1998. They had a children case which I forwarded to the area chief who referred to the children officer. She refused to hand over the children. Judy Wangithi Kinyua is not married to Francis Kinyua Muthee. She is married to George Njuki Muya. They have one boy. From my home is just 5 shambas. Beth hold no church wedding. They are from my area of my jurisdiction. The two brothers Jackson Kariuki Mwai (Chief) and Kinyua Mwai. It is one, is one and the same person, whose brother was Gichohi Wambu.”* 12. On cross examination, he stated that, *“I know Gichobi Wambu. They have no relationship with the deceased that I know of. Jane Ruguru Muthee is a stranger to me. Rosemary Wanjjiku is a stranger to that home. Jackson Kariuki Mwai is the current chief. I am most conversant person. I have been in service of over 40 years. 27 years as a chief and 13 years in water project. I am not aware of the birth certificate. Muthee Mwai deceased. I have known him for 40 years. In 1975 I did not know him. I don’t know if he had another woman. The children did not claim anything during the sub division.”* 13. In re-examination, he stated that, *“The son of Beth stays with George Njuki.”* 14. RW3 Jesida Kamori Muthee, adopted her statement dated 13/3/2019 as her evidence in chief. She testified that, *“I come from Kianguenyi. Rosemary Wanjiku Waweru is a stranger to me. I came to know her in court. I got married in 1966. I did not find any other wife. There was a house. I was married customary then Christian marriage. I never saw Rosemary Wanjiku. I know chief Jackson Mwai. He was previously a Surveyor before he became a Surveyor. I took him to Nyeri District then Mweiga and transferred to Nairobi. He died at hospital. He was never admitted to Kenya hospital. I did not see Mary. I filed the succession cause in 2001. Wanjiku and Jane Wangithi. Beth was a wife to Francis Kinyua my son. She left in 1998. She had with 2 children. She later married Mary Wanja. Married with a daughter Patricia Wanjiru. She later got Vivian Nyaguthie. She left the baby at 3 months. Jane Wangithi is a sister to late Mary. She was not married to Kinyua. She came to look after the child. The portion of Kinyua should be given to my children 3 in number. I request or dismissal of application.”* 15. On cross examination, she stated that, *“I know Peter Gichobi. They were not related to Muthee Mwai. Rosemary Wanjiku is not my child. I have marriage certificate of 1966. I have no documents for the hospital.”* 16. In re-examination, she stated that, *“The funeral was for Mary Wanja. Francis Kinyua is in the photograph. Judy Wangechi was never married. The eulogy was not done when I was present. Beth Wanjiku parted with my son in 1998. He remarried. I want the land be written in the name of the children, Carolyne Wanjiru Kinyua, Maureen Wangare Kinyua, Vivian Nyaguthii Kinyua.”* Submissions 1. The Appellant faults the Respondent for failing to prove that she was a daughter of the deceased to be entitled to a share of his estate. She faults the trial court for revoking the grant when there was no evidence to prove that it was obtained fraudulently, and cites *Barnaba Kiprono Kosgei v Tereki Cheromo (Family Appeal No. E002 of 2023 [2024] KEHC 1337 (KLR) and Albert Imbuga Kisigwa v Recho Kavai Kisigwa (2016) eKLR*. According to her, the application was inordinately filed 18 years after the confirmation of the grant, the court proceeded to suo moto issue a joint grant to the parties and distribute the estate in blatant disregard of the procedure set out under section 71 of the Law of Succession Act. 2. The Respondent urges that she tendered sufficient evidence that she was a daughter to the deceased hence the share of 0.5 Acres out L.R No. Kabare/Gachigi/452 was merited. She prays for the dismissal of the appeal with costs, and cites *Re Estate of JGM (Deceased) (Probate and Administration Appeal E012 of 2022 [2024] KEHC 7740 (KLR)*. **Analysis and Determination** 1. From the grounds of appeal, the singular issue for determination is whether the threshold for the revocation of the grant was met. 2. The Appellant vehemently refuted the contention that the Respondent was a daughter of the deceased, when she restated that, *“I got married in 1966. I did not find any other wife. I was married customary then Christian marriage. I never saw Rosemary Wanjiku. I did not see Mary.”* 3. The sub chief of Gachigi Location testified that, *“I knew one Muthii Mwai he came from my Sub location. The wife was Jesida. Kamori Muthee. She had 5 children. 3 sons, 2 daughters namely: Jackson Muriuki, Francis Kinyua, Peter Karimi. Daughters Were Beth Wanjira, Lillian Wambui. I am not aware of another wife. When the deceased passed on I attended the burial and issued the burial permit. Before he passed on I witnessed him sub divide KABARE/GACIGI/452. He sub-divided into 4 portions. Each son 1 ½ acres balance himself. Wife and daughters it was 1.7 acres. The land was approximately 6 acres. I know Jackson Kariuki Mwai is the current chief. I know Rosemary Waweru she is a stranger in that location. I have never seen her before. She used to stay in home brother to the father Jackson Kariuki Mwai (current chief). The brother is Waweru Kabue. The two brothers Jackson Kariuki Mwai (Chief) and Kinyua Mwai. It is one, is one and the same person, whose brother was Gichohi Wambu.”* 4. On her part, the Respondent testified that, *“I went to visit my father with my uncle. I was going there when my father was there.”* On cross examination, she stated that, *“I am a daughter of the deceased. I was born in 1975. My mother passed on when I was 8 months. I was raised by Peter Gichobi Wambui an uncle. I have never utilized the land. I never obtained identity card with my father. I took the ID with my husband’s name. My husband is Vincent Waweru Gichobi. I was married customarily. No bride price has been paid. I got married in 1991. We went later to talk to my father. Muthee Mwai took care of me. He used to pay my school fees. I have no receipts for school fees. I didn’t participate in the burial. I didn’t contribute to the funeral. I attended but I stood on the road. I was not in the mortuary.”* 5. The Chief of Gachigi Location Gichugu West, testified that, *“Rosemary came to my office when she wanted to claim. She had attended a burial in which she realized that she had not been involved. I did investigation and realized she was a daughter of the deceased. ”* On cross examination, he stated that, *“Rosemary is not my relative. My father is Peterson Mwai Wambu. Gichobi Wambu is not my relative. I don’t have. Gichobi Wambu. I don’t have any knowledge of the relation. I visited several wazees. The ones who are neighbours. They visited the office.”* 6. The Respondent’s uncle stated on cross examination, that, *“I was the one staying with Rose. She was born in 1975. The mother was married in 1974 under Kikuyu customs. Dowry was paid to the parents.”* In re-examination, he stated that, *“Rosemary was supported by the deceased.”* 7. A cousin of the deceased herein stated on cross examination, that, *“Jane Ruguru Muthee was married by the deceased in 1975. Dowry was paid. I was present. He educated her at her uncle’s place. Jesida Kamori Muthee was married 1975. Rose attended the burial.”* 8. When the chief, an independent witness, testified, he categorically refuted the assistant chief’s assertion that he knew or was in any way related to one Gichobi Wambu. The uncle of the deceased, the chief, the Respondent and her uncle led consistent and largely uncontroverted evidence that the Respondent was a daughter of the deceased whom he educated, and the Respondent in turn supported and visited him during his illness. It was further demonstrated that the Respondent attended the deceased’s burial, and her lack of participation in the funeral arrangements was evidently due to the hostility between her and the Appellant. Moreover, dowry had indeed been paid in respect of her mother, Jane Ruguru Muthee, the 1st wife of the deceased, thereby lending credence to the Respondent’s claim of paternity. 9. The court is minded that the scope of the definition of a child under section 3 (2) of the Law of Succession Act transcends mere biological ties. It encompasses a child born out of wedlock, an adopted child, or those otherwise recognized under the law. 10. Having carefully re-evaluated the evidence on record, this court is satisfied that the Respondent proved on a balance of probabilities that she was a daughter of the deceased with his 1st wife, and was a beneficiary of his estate entitled to participate in its distribution. 11. On whether the trial court erred in issuing the grant jointly to the parties herein and distributing the estate suo moto, the provisions of Section 47 of the Law of Succession Act enjoin a court to determine any dispute and make such orders therein as may be expedient. The trial court, utterly mindful of the age of this cause and in the spirit of Sections 1A, 3 and 3A of the Civil Procedure Act, simultaneously appointed the Appellant and the Respondent as joint administrators and distributed the estate, which brought it to a closure and invariably obviated the need for the parties to institute further applications for the appointment of administrators and the subsequent confirmation of the grant. 12. The parties herein were duly heard before the decision to revoke the grant was made. The Appellant’s witness, the assistant chief, gave a detailed account of how the deceased sub-divided the estate, and gave each son 1½ acres while the wife and daughters got 1.7 acres. The contention that the appointment of the joint administrators and the subsequent distribution of the estate circumvented the laid down procedure under section 71 of the Law of Succession Act is thus misconceived. **ORDERS** 1. Accordingly, for the reasons set out above, the Court finds that the appeal has no merit and it is dismissed. 2. The Appellant will pay to the Respondent the costs of the appeal. *Order accordingly.* **DATED AND DELIVERED THIS 30TH DAY OF JULY 2026.** **EDWARD M. MURIITHI** **JUDGE** **APPEARANCES:** Mr. Ndana for the Appellant. Ms. Otieno for Mrs Makworo for the Respondent.