In re Estate of Shikuri alias Masingu (Deceased) (Succession Appeal E002 of 2025) [2026] KEHC 9356 (KLR) (29 June 2026) (Judgment)

In re Estate of Shikuri alias Masingu (Deceased) (Succession Appeal E002 of 2025) [2026] KEHC 9356 (KLR) (29 June 2026) (Judgment) Neutral citation: [2026] KEHC 9356 (KLR) Republic of Kenya In the High Court at Kakamega Succession Appeal E002 of 2025 S Mbungi, J June 29, 2026 IN THE MATTER OF HENRY MASINGU SHIKURI alias MASINGU SHIKURI (DECEASED) Between Khamasi Laban Masingu Appellant and Cecilia Nanjala Respondent (Being an appeal rising from the judgment dated 19th December 2024 delivered by the Hon. J.R Ndururi SPM in Kakamega Chief Magistrates ' Court Succession cause No E368 of 2023) Judgment 1.The Respondent, in a judgment delivered on 19th December 2024 by Justice Ndururi, had filed a summons for confirmation of the grant dated 15th October 2024, where she had proposed the asset of the deceased, land parcel No. Kakamega/Shiswa/116 be shared equally between herself and the 2nd petitioner/ objector, Khamasi Laban Masingu, each getting 1.4 Ha. The trial court, upon analysing the parties' case, found that the objector's mode of distribution was not fair as it would have disadvantaged the other beneficiaries and shared Kakamega/Shiswa /116 between the applicant, objector, and Prisca Shikuri as follows: Khamasi Laban Masingu 1.4 Ha, Cecilia Najala 0.7 Ha, and Prisca Busieka Shikuri 0.7 Ha 2.The Appellant, being dissatisfied with the decision of the Honourable court, preferred the above appeal based on the following grounds;a.That the Learned Trial Magistrate erred in law and in fact in making his decision without considering all the facts before him, and ignored his paramount duty as well as his inherent powers of doing sob.That the learned Trial Magistrate erred in law and fact in making his decision without considering the consent dated 16/09/2024, thumb printed by Prisca Busieka Shikuri and signed Peninah Lusuyi Masingu, laying no claim to benefiting from the estate of Henry Masingu Shikuri – deceased with respect to land Parcel No. Kakamega /Shiswa /116c.That in his consideration of law and facts before him, the learned magistrate misdirected himself and erred in coming to his decision on wrong principles, thus working hardship to the Appellant that occasioned miscarriage of justice.d.The learned Trial Magistrate decision is unfair and unjust and cannot be maintained as they are contrary to the interest of justice. 3.The appeal was to be canvassed by way of written submissions. 4.At the time of writing the judgment, only the respondent had their submissions on the court’s record. Respondent’s submissions 5.In their submissions dated 27th January, 2026, the Respondent gave a breakdown of the succession proceedings by stating that the deceased Henry Masingu had died on 8th April 1975 and that he had one property being Kakamega/ Shiswa/116, measuring 2.8 Ha. She submitted that the deceased was survived by Habel Shikuri (son), now deceased; Caleb Shanyula Masingu (son), now deceased; Laban Khamasi Masingu (son and the Appellant); and Peninah Lusiyi (daughter). The deceased 1st born son, Habel Shikuri, was survived by his widow, Prisca Busieka, and the 2nd born son, Caleb Shanyua, was survived by his widow, Cecilia Nanjala, the Respondent herein. 6.She confirmed that the court issued a grant of letters of administration in the estate of the deceased in the name of the Appellant and Respondent, and the grant was to be confirmed within 90 days. When she filed for confirmation of the grant on 16th October 2024, she proposed an equal share of the land property. She claimed that the deceased had parcels of land Kakamega/Shiswa/173 (0.7 Ha) and Kakamega / Shiswa/172 (0.7 Ha) which prior to his demise the deceased had transferred to his two sons Habel Shikuri and Caleb Shanyula Masingu, and that each son was to receive 0.7 Ha from the remaining land parcel Kakamega/ Shiswa/116, bringing the total to 1.4 Ha, and the remaining 1.4 Ha to be issued to the surviving son, being the Appellant. 7.She claimed that the remaining daughter of the deceased, Peninah Lusiya, had renounced her right to inherit from the deceased. 8.The trial court agreed with the mode of distribution; however, the Appellant, being dissatisfied, filed the following appeal. 9.The Appellant contends that several facts are undisputed by both herself and the Respondent being that the deceased had died intestate and further he had no objection to the grant of letters of administration that was issued by the lower court on 13th June 2024. 10.It was submitted that the other issue that was not disputed was that the deceased owned three parcels of land being;a.Kakamega/Shiswa/172 measuring 0.7 hectares;b.Kakamega/Shiswa/173 measuring 0.7 hectares; andc.Kakamega/Shiswa/116 measuring 2.8 hectares. 11.Before his death, the deceased had distributed his land among his sons during his lifetime. According to the evidence, the deceased intended each son to receive an equal share of approximately 1.4 hectares. 12.The first son, Habel Shikuri Masingu, took possession of parcels Kakamega/Shiswa/172 and Kakamega/Shiswa/173, which together measure 1.4 hectares. 13.The Appellant and the second son, Caleb Shanyula Masingu, were each allocated 1.4 hectares from parcel Kakamega/Shiswa/116. 14.The Appellant further argues that the evidence adduced before the trial court demonstrated the deceased's clear intention that all his sons should inherit equal portions of his land. The deceased had already settled his sons on their respective portions and put them in possession before his death. 15.It is also submitted that deceased allegedly gave directions regarding the occupation and utilization of the land, reflecting his intention that the distribution among his sons remain equal and orderly. They argued that the appellant failed to adduce evidence to substantiate their position that the deceased had intended the entire parcel of land Kakamega/shiswa/116 to be given to the appellant. 16.She agreed with the court’s decision holding that it conformed to the deceased's wishes and was fair to the parties involved. They quoted the case of Re Late Morogo A. Mugun (deceased) eKLR, stating that the deceased had issued the parcels of land Kakamega/ Shiswa/172 and Kakamega/Shiswa/173 to his eldest son Habel Shikuri Masingu, to his two wives, and the remaining parcel Kakamega/Shiswa/116 to the remaining sons Caleb Shanyula Masingu 1.4 Ha and Khamasi Laban Masingu (1.4 Ha), which they had occupied, constructed their houses, and lived before and after the demise of the deceased. 17.She held that the Appellant had received his equal share, being 1.4 Ha from the deceased, and that all the sons equally received the land they relied on section 35 as read with section 38 of the Law of Succession Act. She claimed that the sons of the deceased had died, hence their widows were to inherit their shares, and that the estate was to be shared equally among the children. Analysis and determination. 18.This being a first appeal, this court is obligated to re-evaluate and re-analyse the evidence that was placed before the trial court and arrive at its own independent conclusions, while bearing in mind that it neither saw nor heard the witnesses testify. 19.The duty of a first appellate court was stated by the court of Appeal in the case of Selle & Another v Associated Motor Boat Co. Ltd & Others, where the court held:“An appeal to this court from a trial by the High court is by way of retrial, and the principles upon which this Court acts are well settled. Briefly put, they are that 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.” 20.I have considered the memorandum of appeal, the record of appeal, the judgment of the lower court, and the Respondent’s submission and find that the key issues for determination being;a)Whether the trial court failed to consider the consent allegedly executed by Prisca Busieka Shikuri and Peninah Lusiyi Masingu renouncing their interests in the estate;b)Whether the learned magistrate erred in distributing land parcel Kakamega/Shiswa/116 between the Appellant, Respondent, and Prisca Busieka Shikuri;c)Whether the trial court properly applied the provisions of the Law of Succession Act regarding distribution of the estate. 21.The first issue that was raised by the Appellant in his memorandum of appeal dated 14th January 2025 was that the trial magistrate had failed to consider that the beneficiaries, being Prisca Busieka Shikuri and Peninah Lusiyi Masingu, had filed a consent dated 16th September 2024, where they had renounced their claim to the deceased estate, and hence the trial court made an error in considering Prisca Busieka and awarding her 0.7 Ha in the mode of distribution. 22.I have had the opportunity to peruse the lower court records and the consent order, which shows that Peninah Lusiyi Masingu, the daughter of the deceased, indeed renounced her entitlement to a share of the estate. The Respondent herself acknowledged this fact during the succession proceedings at the lower court. 23.However, the position regarding Prisca Busieka Shikuri is different. Prisca Busieka Shikuri was not claiming to be a child of the deceased. Rather, she was claiming through the estate of her deceased husband, Habel Shikuri Masingu, who was one of the sons of the deceased. 24.The question, therefore, becomes whether the alleged consent by Prisca could extinguish the entitlement of the house and children of Habel Shikuri Masingu to inherit from the estate of the deceased. 25.The evidence before the trial court demonstrated that Habel Shikuri Masingu was the son of the deceased and had predeceased the confirmation of grant proceedings. The entitlement of a deceased child of an intestate devolves upon his own estate and beneficiaries.In succession proceedings, the court is mainly concerned with identifying the beneficiaries entitled to inherit under the Law of Succession Act and ensuring that no lawful beneficiary is unjustly disinherited. 26.A renunciation by Prisca, who in this case is a widow, cannot necessarily extinguish the inheritance rights accruing to the estate of a deceased child unless the law allows for it. 27.Consequently, even assuming that such consent as alleged by the Appellant is uncontested, the trial court was still under a legal obligation to ensure that the estate of Habel Shikuri Masingu was not unjustly excluded from their rightful inheritance. The court would have to consider the deceased children and other beneficiaries from the household of Habel and ensure they are not disadvantaged by the decision of the widow, Prisca Shikuri. 28.I therefore find no merit in the Appellant's contention that the trial court's failure to adopt the alleged consent automatically rendered the judgment erroneous. 29.On the second claim of whether the deceased had distributed his estate during his lifetime, the evidence before the trial court established certain facts which were largely uncontested. 30.The first issue that was uncontested was that the deceased Henry Masingu had died intestate on 8th April 1975. Secondly, that he had owned several parcels of land, which were listed as follows;i.Kakamega/Shiswa/172 measuring approximately 0.7 hectares;ii.Kakamega/Shiswa/173 measuring approximately 0.7 hectares;iii.Kakamega/Shiswa/116 measuring approximately 2.8 hectares. 31.The third uncontested issue was that the deceased in his lifetime had settled his sons on the different parcels of the land. According to the respondent, land parcels No. Kakamega/Shiswa/172 and Kakamega/Shiswa/173, measuring a combined total of 1.4 hectares, had been allocated to Habel Shikuri Masingu, while parcel No. Kakamega/Shiswa/116 had been occupied by Caleb Shanyula Masingu and Khamasi Laban Masingu, each utilizing approximately 1.4 hectares. 32.The learned magistrate accepted that evidence and found that the deceased's intention was to distribute his land equally among his sons.The Law of Succession Act expressly recognizes benefits and gifts made by a deceased person during his lifetime. 33.Section 42 of the Law of Succession Act provides:“Where—(a)an intestate has, during his lifetime or by will, paid, given, or settled any property to or for the benefit of a child, grandchild, or house; or(b)Property has been appointed or awarded to any child or grandchild under the provisions of section 26 or section 35, that property shall be taken into account in determining the share of the net intestate estate finally accruing to the child, grandchild, or house.” 34.The effect of Section 42 is that gifts or settlements made by a deceased person during his lifetime must be considered when determining the final distribution of the estate. 35.The Court of Appeal in Rono v Rono & another (Civil Appeal 66 of 2002) [2005] KECA 326 (KLR) (29 April 2005) held that Section 42 requires previous benefits received by beneficiaries to be taken into account when distributing an intestate estate. 36.The parties' affidavits supported the trial court's finding that the deceased had already settled Habel Shikuri Masingu on parcels No. Kakamega/Shiswa/172 and 173 measuring 1.4 hectares. 37.The trial court decision was supported with evidence that the deceased sons, that is Caleb Shanyula Masingu and the appellant had each occupied and utilized approximately 1.4 hectares from parcel No. Kakamega/Shiswa/116. 38.Consequently, the trial court correctly appreciated the principle under Section 42 of the Act that previous benefits received by beneficiaries must be considered when distributing the estate. 39.On the claim of whether the trial court had correctly applied section 38 and 42 of the succession Act, the appellant contends that parcel No. Kakamega/Shiswa/116 ought to have devolved entirely to him claiming that that was the deceased will however he never availed any supporting evidence to support the alleged “will of the deceased” 40.Section 38 of the Law of Succession Act provides:“Where an intestate has left a surviving child or children but no spouse, the net intestate estate shall, subject to the provisions of sections 41 and 42, devolve upon the surviving child, if there be only one, or shall be equally divided among the surviving children.” 41.The deceased herein was survived by several children. Although some of his children had passed on at the time of the succession process however as the Law of succession provided their share of the estate would devolve to their respective their children. 42.The principle of equality among children has repeatedly been emphasized by Kenyan courts. As seen above in the case of Rono v Rono & Another, (supra) the Court of Appeal stated that;“The Law of Succession Act does not discriminate between female and male children or between married and unmarried daughters.” 43.The evidence that the trial court had taken into consideration showed that each son of the deceased had effectively received or been allocated approximately 1.4 hectares. Habel Shikuri Masingu had received 1.4 hectares through parcels 172 and 173. Caleb Shanyula Masingu had his share which was estimated to be 1.4 hectares. The Appellant similarly had the same share which was 1.4 hectares as was allocated to him by the lower court. 44.From my analysis, the learned magistrate was right to come to the conclusion that the houses of the deceased's sons ought to benefit equally. He proceeded to allocate the deceased shares as follows;a.Khamasi Laban Masingu —1.4 hectares;b.Cecilia Nanjala — 0.7 hectares;c.Prisca Busieka Shikuri — 0.7 hectares. 45.This court is therefore unable to find any error of law, misdirection, or improper exercise discretion on the part of the learned magistrate. 46.In Mbogo & Another v Shah it was stated that; an appellate court will not interfere with the exercise of the discretion of a judge unless it is satisfied that the judge misdirected himself in some matter and as a result arrived at a wrong decision.” 47.Having re-evaluated the entire record, I find no such misdirection by the trial magistrate. 48.It is my understanding that the learned magistrate considered the evidence, the beneficiaries entitled to inherit and the applicable provisions of the Law of Succession Act. 49.In conclusion, I find that the appeal lacks merit. The Appellant has failed to demonstrate that the learned trial magistrate erred in law or fact, misapprehended the evidence, ignored relevant considerations, or reached a decision that was plainly wrong. 50.The judgment delivered on 19th December 2024 in Kakamega CM Succession Cause No. E368 of 2023 is hereby upheld in its entirety. 51.Consequently, the appeal is dismissed. 52.As this is a family dispute each party shall bear its own cost 53.It is so ordered. 54.Right of Appeal 30 days. DATED, SIGNED AND DELIVERED IN OPEN COURT AT KAKAMEGA THIS 29TH DAY OF JUNE,2026.S.N.MBUNGIJUDGEIn the Presence of:-CA: Zilda/VelmaMr. Khaemba for the Respondent present online.Mr. Karamula for the Appellant absent.Mr Khaemba: I seek for a copy of the judgment.Court: A copy of the Judgment be availed to the Respondent counsel.