https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6599

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT NYAHURURU** **SUCCESSION APPEAL NO. E007 OF 2024** **IN THE MATTER OF THE ESTATE OF SOLOMON MUNGURA MATHIA (DECEASED)** **TERESIA WAMBUI KESI……………………….……..1ST APPELLANT** **GLADYS MUTHONI MUNGURA……………………..2ND APPELLANT** **-VERSUS-** **JOSPHINE NDIKO MUNGURA…………..…………….RESPONDENT** **JUDGMENT** 1. This appeal emanates from a Ruling delivered by Hon M.N. Osoro SRM in Nyahururu CM Succession Cause No.32 of 2018. In the matter of the Estate of Solomon Mungura Mathia (Deceased). 2. The deceased died intestate on 13/11/016 whereby he was survived by five (5) children and one grandson namely; 3. **TERESIA WAMUI KESI - DAUGHTER** 4. **JOSEPH KARIUKI MUNGURA - SON** 5. **PENINAH MUGURE MUNGURA - DAUGHTER** 6. **JOSEPHINE NDIKO MUNGURA - DAUGHTER** 7. **GLADYS MUTHONI MUNGURA - DAUGTHER** 8. **KELVIN MBURU WANJOHI - GRANDSON** 9. A grant of letters of Administration Intestate was issued on 24/5/20218 whereby Teresia Wambui Kesi (1st Appellant) and Gladys Muthoni Mung’ura (2nd Appellant) were granted the power to administer the Estate. 10. An affidavit was sworn in support of summons for confirmation of Grant of Letters of Administration Intestate where shares of all persons who were entitled to benefit from the Estate were ascertained and determined thus; 11. **TERESIA WAMBUI KESI - 1.36 ACRES** 12. **JOSEPH KARIUKI MUNGURA - 1.36 ACRES** 13. **PENINAH MUGURE MUNG’URA - 1.36 ACRES** 14. **JOSPHINE NDIKO MUNGURA - 1.36 ACRES** 15. **GLADYS MUTHONI MUNG’URA - 1.36 ACRES** 16. **KELVIN MBURU WANJOHI - 1.36 ACRES** 17. **TERESIA WAMBUI KESI &** **GLADYS MUTHONI MUNG’URA - 0.24 ACRES** **(**to hold in trust of themselves and of **JOSEPH KARIUKI MUNGURA, PENINAH MUGURE MUNGURA, JOSPHINE NDIKO MUNGURA & KELVIN MBURU WANJOHI** as a family graveyard.) 1. An affidavit of protest was subsequently filed by the Respondent, Josephine Ndiko Ngugi, which necessitated hearing of the protest. Through a ruling dated 07th November, 2024 the trial court made orders as follows: ***“(b) Portion A(0.661ha) despite the dispute regarding its size, the said portion shall be in possession of Josphine Ndiko Mungura. This allocation is justified due to the presence of the family home and parents’ graves which hold a considerable sentimental value. The slightly larger value is offset by the fact that this portion serves as the family’s ancestral home.”*** 1. Aggrieved the Appellants preferred the instant appeal on grounds that; 2. ***That the learned trial Magistrate erred in law and in fact in awarding the Respondent a bigger share of the estate of the deceased of 0.661ha to be excised from L.R. No. Nyandarua/Wanjohi/342 as against the other beneficiaries who got 0.546ha.*** 3. ***That the learned trial Magistrate erred in law and in fact in awarding the area of 0.115ha holding the deceased’s homestead and the graveyard containing the remains of the deceased and his wife exclusively to the Respondent.*** 4. ***That the learned trial Magistrate erred in law and in fact in failing to distribute the 0.115ha holding the deceased’s homestead and the graveyard equally among the 6 surviving beneficiaries of the deceased.*** 5. ***That the learned trial Magistrate erred in law and in fact in failing to allow the Appellants free access to the portion of land holding their deceased parents graves and their homestead and for allocating the same to the Respondent.*** 6. ***That the learned trial Magistrate erred in law and in fact in failing to distribute the deceased estate equally among the 6 surviving children as provided for under Section 38 of the Law of Succession Act Cap. 160 Laws of Kenya.*** 7. ***That the learned trial Magistrate erred in law and in fact in completely disregarding the evidence by the Appellants, the written submissions and the applicable law while distributing the estate of the deceased.*** 8. ***That the learned trial Magistrate erred in law and in fact in holding that the Respondent was entitled to portion marked A whereas no evidence was tendered to support the same.*** 9. For that reason, they sought orders that; 10. ***The estate of the deceased comprised of L.R. No. Nyandarua/Wanjohi/342 to be distributed equally among the 6 surviving beneficiaries with the area holding the deceased’s house and graves being held in trust of all the beneficiaries by the administrators.*** 11. ***The estate of the deceased be distributed equally in line with Section 38 of the Law of Succession Act Cap 160 Laws of Kenya.*** 12. ***That the Respondent be ordered to surrender the original title deed for L.R. No. Nyandarua/Wanjohi/342 to the administrators for the distribution of the estate.*** 13. Pursuant to directions taken, the appeal was disposed through written submissions. It is urged by the Appellants that the Respondent signed a consent dated 15th December, 2018, to the filing of the Petition and appointment of administrators. There was an attempt to introduce a Will during hearing of the objection filed by the Respondent and the trial court held as follows; ***“The other limb which is not properly ventilated was why the Petitioner brought an Intestate process if they had a will. Their explanation to the effect that the will came to their knowledge after the petition was filed does not make sense as they still could have amended and or withdrawn the Intestate petition and replaced it with a Testate petition. It’s my feeling that they were on a fishing expedition trying their luck to see if the Will may be used to effect the final subdivision.”*** ***(Having analysed the evidence before me, its my humble finding that the Will in its current form is not valid hence not admissible.”*** 1. And, that no appeal was lodged against that finding. 2. That an objection was raised by the Respondent before the trial court which held that; ***“The objection was in respect to the mode of distribution. The Objector attempted to show through her evidence that the deceased had intended to have her retain the part of the plot where the homestead is situated which is slightly bigger than the rest of the subdivided parts. She produced a consent letter to that effect but I have already made a finding that the consent letter by itself does not show how the subdivision was done and more specifically where each dependent was to have.*** ***Having made this finding, it thus support my position to the effect that the objection has no basis hence no merit.”*** 1. That no appeal was lodged against the finding. 2. That there was no valid justification for all beneficiaries to get an award of equal share of 0.546Ha while the Respondent was awarded 0.661Ha. A bigger portion which includes the homestead and graveyard holding the remains of the deceased and his wife, a piece of land which is of sentimental value to all the beneficiaries. 3. Reliance was placed on the case of ***Re-Solomon Njehu Wandia (deceased) [2018] eKLR and Re-Estate of Ephanson Karanja Kiriongi (deceased) [2020] eKLR.*** 4. Lastly it is submitted that the Respondent be awarded 0.546Ha like other beneficiaries. And that the Respondent be ordered to surrender the original title deed for the land to the Administrators to enable them discharge their duties or distributing the Estate to the beneficiaries as provided by Section 79 and 83 of Cap 160. 5. In response, the Respondent submits that the Memorandum of Appeal dated 27/01/2024 is a replica of Nyahururu HC Succession Appeal No.2 of 2020 hence an abuse of the process of the court and has no merit whatsoever. That Hon. Osoro M.N. SRM only distributed the Estate in accordance with specific dictates issued by *Kariuki J. on 06/10/2022 in Nyahururu High Court Succession Appeal No.2 of 2020* having rejected the Appellants’ challenge against the judgment entered in Succession Cause No. 32/18 on 18/06/2020. That the Judge directed in the judgment that the distribution of the Estate of the deceased be done in accordance with the Letter of Consent of the Land Board dated 21/07/2015 as per the judgment and the Surveyor was only meant to confirm the situation on the ground. That the decision by Kariuki J. resolved the issue of distribution of the Estate of the deceased. 6. Nevertheless, it is urged that the 1st and 2nd Appellants filed an appeal dated 20/06/2020, the HC Succession Appeal NO.2 of 2020 which is meant to challenge the judgment of Hon. J.H.S Wanyanga SRM, an appeal that challenged the trial court’s findings that the deceased had subdivided the Estate into 6 portions as per the consent letter dated 20/07/2015 which was not disputed. 7. Also challenged was the calling of the Surveyor’s Report with an intent to distribute the Estate per the consent letter dated 21/07/2015; failing to fault the Respondent for taking over the area of homestead and family graveyard and as a result rewarding the intermeddler by approving unlawful action; unlawfully ordering that the Surveyor’s Report was not conclusive, a ballot was to be cast as to allocate the Estate; failure to equitably distribute the Estate, and allocate the area holding the homestead and family graveyard for the six (6) beneficiaries jointly, an appeal (HC SUCC. No E007/24) that was heard and dismissed. Hence it is not open for the Appellant to regurgitate the same grounds of appeal. 8. That the present appeal being a replica of HC.SUCC.APPEAL No 2 of 2020 which offends **Section 7 Explanation 4 and 5 of the Civil Procedure Act** which cannot be a subject of litigation before the same court (High Court). 9. That Kariuki J. having concurred with the decision of Hon. H.S. Wanyanga SRM, the District Surveyor was only supposed to ascertain who occupied what portion of the grounds hence this could only be challenged in Court of Appeal. 10. That the bigger portion allocated to the Respondent was justified because of the family graveyard. That the distribution was shared fairly and equitably and it was not discriminatory and distribution does not need to be mathematically equal. Reliance is placed on the case of ***Boniface Matonye Musyoka Maingi (KLR) [2023] KEHC 19520*** where it was held that; ***“……..one is legally entitled to a reasonable share of the deceased’s estate considering all the relevant circumstances to each specific case.”*** ***“each beneficiary shall remain settled on the portion settled on the land developed or cultivated and the said portion shall be taken into account during the distribution of the estate of the deceased….”*** And, in the ***Estate of Kariuki Muchina Mbati [Deceased] [2017] eKLR*** where the court held; ***“The distribution of the Estate of the deceased shall be equitable and not equal amongst the beneficiaries due to prevailing factors..”*** 1. That the deceased’s intention was unequivocal hence should be respected as held in ***Paul Kiruhi Nyingi & Another v Francis Wanjohi Nhingi [2005] eKLR*** where the court declared as follows: ***“…that the deceased blackbook remained uncontroverted expression of the deceased wishes. It was not produced a Will but it was to show his intentions on the way the estate should be distributed. Unless it can be demonstrated that those wishes of the deceased captured in the blackbook are illegal, unfair, discriminatory and unjust to beneficiaries or some of them, such wishes ought to be respected in my view….”*** 1. I have considered rival submissions put forth. This is a first appellate court hence I am reminded of its primary role to re-evaluate, re-assess and re-analyze and reconsider what transpired at trial so as to determine whether conclusions reached are correct. (***see Abok James Odera HA AJ Odera & Associates v John Patrick Machira t/a Machira & Co. Advocates [2013] eKLR).*** 2. An appeal emanated from this matter, from the decision of Hon. J.H.S Wanyanga SRM. On appeal issues to be determined were: * Validity of the Will dated 24th November, 2024. * Equitable distribution of the Estate as against Land Control Board Consent letter dated 21st July, 2015. 1. The question of the Will was conclusively determined by the High Court which affirmed the findings of the Lower Court. 2. On the question of Equitable distribution of the Estate, the High Court (Kariuki J) delivered itself thus; ***“19. Consequently, the court dismissed the purported Will and the Respondent’s contention, the court dismissed the purported will and the Respondent’s contention concerning subdivision and allocation. Accordingly, the court was left with the issue of distribution of the estate of resolve.*** ***20. The Appellants are aggrieved by the court’s desire to establish how the ground/physical occupation of the estate property is currently. However, it is not demonstrated that it will be prejudicial to any beneficiaries. The court’s primary duty in exercising its jurisdiction as a probate court is the distribution of the Estate of a dead person.*** ***21. I agree with the trial court that issuing directions requiring a surveyor to visit the estate property and file a report showing who occupies what portion and where on the ground was a fair decision to enable fairness in establishing each beneficiary’s equitable share. In addition, the surveyor’s report will help he court to make an informed final determination as to who was to get what and where physically on the ground.*** ***22. Since the surveyor’s report was not made because this court stayed the trial court orders, the Appellants complaint against the trial court judgment was premature as the grievance of unfair distribution could only be made after the court distributes the estate and, in this case, same was not done.*** ***(i) Thus, I return the lower court file here to the trial court or replacement of the trial Magistrate or as head of the station may determine for distribution of the estate intestate per the law after the surveyor’s report establishes the situation on the ground as directed by the trial court.*** ***(ii) Parties to bear their costs.”*** 1. It is urged that the relief sought on appeal is *res-judicata,* **Section 7 of the Civil Procedure Act** sets out the principle of *res-judicata* thus: ***No court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such court.*** 1. In ***John Florence Maritime Services Limited & Another V Cabinet Secretary, Transport and infrastructure & 3 Others [2021] KESC 39(KLR)*** the Supreme Court stated that: ***“The principle of finality or res judicata is a matter of public policy and is one of the pillars on which a judicial system is founded. Once a Judgment becomes conclusive, the matters in issue covered thereby cannot be reopened unless fraud or mistake or lack of jurisdiction is cited to challenge it directly at a later stage. The principle is rooted to the rationale that issues decided may not be reopened and has little to do with the merit of the decision.”*** 1. In ***Bernard Mugo Ndegwa v James Nderitu Githae & 2 others [2010] KEHC 3922 [KLR] W. Karanja*** [as she then was] summarized: 2. ***the matter in issue is identical in both suits;*** 3. ***the parties in the suit are the same;*** 4. ***sameness of the title/claim;*** 5. ***concurrence of jurisdiction;*** 6. ***finality of the previous decision.*** 7. Clearly the High Court did not pronounce itself on the question of distribution of the Estate. The High Court in its appellate jurisdiction sent the file back to the trial court for further action. The learned Magistrate of concurrent jurisdiction was required to determine the question of distribution of the Estate intestate. 8. The trial court was expected to exercise magisterial jurisdiction conferred upon it and any decision arising therefrom would be appealable by a party aggrieved. For that reason, the decision by Hon. Osoro SRM was appealable to the High Court. 9. The main contention on appeal is that the Respondent got a bigger share of the Estate, a portion that includes the homestead and the graveyard of the deceased and his wife without any justification, a portion of land that should have been awarded to all beneficiaries without discrimination. 10. According to the Surveyor’s Report dated 05/09/2023 authored by F.O. Sakwa for District surveyor, Nyandarua South, parcel of land No. Nyandarua/Wanjohi/342 was divided into six (6) portions. The portion occupied by the Respondent was bigger measuring 0.661Ha. while the rest occupied by the Appellants were equal. Each portion measured 0.546Ha. The portion held by the Respondent is 0.115 Ha which is 0.28Acres. This is the bone of contention. According to the Surveyor’s Report of 05/09/2023 other family members claim that the bigger portion comprises of the family home as well as their parents’ graves. It was also pointed out that only the Respondent and 5th Appellant have occupied and developed their portions. The 5th Appellant’s parents were buried on his portion. The fact that the parents of the 5th Appellant were not buried at a common graveyard demonstrates that were no such intentions. To the contrary, that would suggest that each person was to be buried on their respective portion of land. 11. Be as it may, a graveyard and homestead being a family home no doubt held sentimental significance to all beneficiaries. These may even be preserved for posterity. Future generations may be interested in such sites. It may not be advisable for an individual to control a burial site. 12. It is urged that the Respondent developed the homestead. This being part of an intestate Estate, it may not entitle her to get exclusive ownership. However, if proved, the Respondent may be entitled to some compensation from other beneficiaries. This being the case, I find the appeal partially successful in that; I set aside the order of the trial court presided by Hon. Osoro SRM and substitute it with an order directing the Surveyor to visit the Land Parcel Nyandarua/Wanjohi/342 portion A to take measurement of the portion occupied by the house and graveyard. 13. Mention for further orders on 02/07/2026. The Appellants and Respondent to bear expenses of the Surveyor. 14. It is so ordered. **Dated, signed and delivered virtually this 6th day of May, 2026.** **……………………** **L.N. MUTENDE** **JUDGE**