[2017] KEHC 2093 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MERU

SUCCESSION CAUSE APPEAL NO. 292 OF 2013

JOSEPH M’ MUKIRA…………………………………..APPELLANT

-Versus-

CIOMUGWIKA THUMAITA…….……………...1ST RESPONDENT

M’ KIUNGA M’ THUMATIA…………………….2ND RESPONDENT

CIOMWEBIA THUMATIA………………….…...3RD RESPONDENT

MUTARU KIUNGA………………………….….4TH RESPONDENT

MUTUNGA THUMATIA………………………...5TH RESPONDENT

MUTHAURA THUMATIA………………….……6TH RESPONDENT

NCANA THUMATIA……………………………..7TH RESPONDENT

MURIUNGI THUMATIA…………………………8TH RESPONDENT

MWETERI THUMATIA…………………………..9TH RESPONDENT

SAKAYO THUMATIA……………………….…..10TH RESPONDENT

KABII THUMATIA ………………………………11TH RESPONDENT

JUDGMENT

[1] This Appeal arises from the Judgment of the Chief Magistrate’s Court at Maua, in Maua Succession Cause No. 33 of 2009 delivered on 16th August 2013, in which the Learned Trial Magistrate inter alia found that the Appellant was not entitled to a bigger portion of land than his brothers. The Appellant was aggrieved by the said Judgment and he filed this appeal via Memorandum of Appeal dated 13th September 2013 and raised the following grounds of appeal:

1. The Learned Trial Magistrate erred in law and in fact in holding that the evidence by the land committee member and others that the Appellant had some land in Matiu which his father the deceased gathered alongside his is not convincing when there was overwhelming evidence before the honourable court.

2. The Learned Trial Magistrate erred in law and fact by finding that the Appellant was not entitled to a bigger portion than his brothers when there was overwhelming evidence before the honourable court.

3. That the Learned Trial Magistrate erred in law and in fact in that he made a finding that parcel No Akithi/Akithi 11/881 be shared equally by all the sons of the deceased when there was no such evidence before the court.

4. The Learned Trial Magistrate erred in law and fact in entertaining this cause when he had no jurisdiction under sections 48 and 49 of the Law of Succession Act CAP 160 of the Laws of Kenya.

5. The Learned Magistrate erred in law and fact by failing to consider and analyze the entire evidence of the witnesses and thereby arrived at the wrong finding on the issue of land.

6. The Learned Trial Magistrate further erred in law and fact by failing to find that the evidence pf the petitioner was convincing and credible.

7. The Learned Trial Magistrate erred in law and fact by disregarding the exhibits which were produced by the Appellant thereby arrived on the wrong finding regarding the estate.

8. The Learned Trail Magistrate erred in law and fact in that he disregarded and failed to consider the weight of the evidence of the Appellant and other witnesses.

9. The decision of the Learned Trial Magistrate was and is against the weight of evidence and the same was bad in law.

Directions

[2] When the matter came up for hearing on 21st July 2016, it was agreed that this appeal shall be canvassed by way of written submissions. Parties filed submissions accordingly and those submissions are analyzed below.

Appellant’s submissions

[3] Briefly, it was submitted for the Appellant that he was entitled to a bigger portion as submitted in the lower court and that 8 witnesses testified that the Appellant was entitled to 0. 70 acres. In addition, the Learned Magistrate ignored the evidence by the Adjudication Committee Member and other clan elders that the Appellant was entitled to a bigger share namely 0. 70 acres. Accordingly, the Appellant submitted that there was sufficient evidence to find that the Appellant was entitled to 0. 70 acres as this was the wish of his deceased father.

Respondent’s submissions

[4] The Respondents on the other hand filed not quite clear responses to the Appellant’s submissions. Nonetheless, they contended inter alia that there was no evidence that the Appellant had a plot of land at Matiru but was taken from him by his late father.

DETERMINATION

Appellate Court’s duty

[5] This being a first appeal, the court should analyze and re-assess the evidence on record and reach its own conclusions except bearing in mind that it neither saw nor heard the witnesses testify. On this obligation, see the cases of SELLE vs. ASSOCIATED MOTOR BOAT CO.[1968] EA 123and KIRUGA vs. KIRUGA & ANOTHER[1988] KLR 348. I shall so proceed.

[6] From the evidence as was recorded by the trial court, all the Respondent’s witnesses urged the trial court to share out the estate property equally among the sons of the deceased. It was also their testimony that all their sisters were married and were not interested in the property of the deceased. However, the Appellant testified that he had a portion of land in his father’s land and asked the court to distribute the estate in accordance with the proposals made by his mother who testified as DW1. DW1 was also the Petitioner in the succession cause appealed from and had proposed that the Appellant (Joseph M’ Mukira) should get 0. 70 acres and all the other sons 0. 30 acres each. The reason she gave for the proposal was that the Appellant’s land had been annexed to his father’s land. No evidence was however tendered in court to prove these claims. The Learned Trial Magistrate in rejecting the contention that the Appellant was entitled to a larger portion of land than the other sons of the deceased remarked inter alia thus:

“…the evidence adduced in support of that position in my considered view was not satisfactory. I find it strange and incredible that the deceased would call the chief to inform him that Joseph Mukira had some points in his shamba in the absence of his sons who were the would be beneficiaries knowing how sensitive land is not only in this part of the country but in the whole country. Had that been the case, there was nothing easer for the deceased to have done than for him to alienate these “points” to Joseph Mukira during his lifetime.”

The Learned Trial Magistrate further observed as follows:

“Joseph Mukira produced a certified copy of the gathering record but a close look at the record DEX.1 simply and only shows that the deceased Thumatia Mara had 2 pieces of land at Matilu which were consolidated with several others in other areas. It does not show that either of the 2 parcels of land at Matilu belonged to Joseph Mukira the son. It is not good evidence to support Joseph’s claim for a bigger portion than his brothers in the deceased estate.”

[7] I have scanned through the entire record and I do not find any evidence which supports the contention by the Appellant that his land or ‘’points’’ was annexed by his father and is part of the estate. The material before the court show that the estate property belonged to the deceased. I have also carefully perused the document marked PEXH.1- which I suspect is the one which the trial magistrate erroneously referred to as DEX.1- and the said exhibit only confirmed one thing: that deceased had 2 pieces of land at Matilu. The document does not show that the Appellant had any land or interest in any of the properties of the deceased. I also meticulously looked everywhere in the record but I did not see any other document or register from the Land Adjudication office. Therefore, the evidence by DW3 that he had noted in the register that Mukira had an interest in his father’s land is not supported by any record; and it is not on PEXH.1. Accordingly, my overall evaluation of the evidence is not any different from the analysis by the trial magistrate, and more specifically I find that a certified copy of the gathering record produced by the Appellant as PEXH.1 only shows that the deceased Thumatia Mara had 2 pieces of land at Matilu which were consolidated with several others in other areas. It does not show that any of the 2 parcels of land at Matilu belonged to Joseph Mukira the son or that he had any interest on any of those pieces of land. The document does not in any way support Joseph’s claim for a bigger portion than his brothers in the estate of the deceased.

[8] Applying the law, in the absence of evidence to the contrary, the principle of equality embodied in section 38 of the Law of Succession Act should apply in this case and all children of the deceased should share the estate equally. I note that it was stated that the daughters are not making any claims upon the estate. Therefore, the trial magistrate rightly applied the law in holding that all the 11 sons of the deceased shall share the estate property namely Akithi/Akithi II/881 equally. I reject the contention by the Appellant that he was entitled to a bigger portion of the estate property. The upshot is that the appeal is dismissed. As this dispute involves close family members, I order each party to bear own costs.

Dated, signed and delivered in open court at Meru this 8th day of

November, 2017

--------------------------------

F. GIKONYO

JUDGE

In the presence of:

M/s. Mutinda advocate for M/s. Thibaru for Appellant

Respondents in person – all present except 1st,5th,6th (deceased), 7th

(deceased) and 11th Respondents.

--------------------------------

F. GIKONYO

JUDGE