Kioga & another v Kioga (Civil Case 61 of 2022) [2026] KEHC 10281 (KLR) (9 July 2026) (Judgment)

Kioga & another v Kioga (Civil Case 61 of 2022) [2026] KEHC 10281 (KLR) (9 July 2026) (Judgment) Neutral citation: [2026] KEHC 10281 (KLR) Republic of Kenya In the High Court at Meru Civil Case 61 of 2022 HM Nyaga, J July 9, 2026 Between Erastus Kirimania Kioga 1st Appellant Edward Mworia Kioga 2nd Appellant and Winnie Kananu Kioga Respondent (Being an appeal from the judgment and decree of Hon. T.M Mwangi in Meru CM SUCCC NO. 281 OF 2017 dated 6/5/2022)) Judgment Background 1.The deceased died on 14th November 2016. 2.On 30th August 2017, Erastus Kirimania (the 1st appellant) and Edward Mworia Kioga the 2nd appellant petitioned the Chief Magistrates court for a grant of letters of administration intestate with will annexed (sic). 3.The petition was actually filed for a grant of Probate, but was incorrectly described by the petitioners as a petition for an intestate estate. The petitioners annexed the last Will And Testament of the deceased dated 20th May 2008. 4.On 9th January 2018, the lower court issued a grant of letters of administration intestate. 5.Subsequently, the petitioners filed summons for confirmation of the grant. The only property listed was land parcel No. Kiirua/Kiirua/705. It was proposed that as per the testamentary instrument left by the deceased the property would devolve to the following:a.Fred Munene Mworia – 0.7 Hectaresb.The balance of 0.38 Hectares to be held by Fred Munene Mworia in trust for Winnie Kananu Kioga, Isabella Kathambi Kioga and Gloria Gacheri Mworia. 6.The said Winnie Kananu filed an affidavit of protest sworn on 13th June 2019. It was her position that the proposed mode of distribution did not confirm to the will of her late father and mother. That the petitioners had not disclosed that they had already received a share of the estate and that the deceased herein was supposed to share her land with her daughters only. 7.After hearing the protest, the trial court delivered its judgment on 5th May 2022, it found that the will was invalid. It then ordered that the estate be shared as follows:a.Winnie Kioga – 0.57 hectaresb.Festus Mutwiri and Samson Kaanua Kioga shall be registered as proprietors 0.57 hectares to hold in trust for the sole benefit of the children of Evangeline.c.Confirmation of the grant is stayed so that the name of the children of Evangeline are availed by the parties to this succession cause. The Appeal 8.Aggrieved by the said judgment, the appellants lodged a Memorandum of Appeal dated 23rd May 2022 in which they set out the following grounds:i.That the learned trial Magistrate erred in law and facts in invalidating a written will of the deceased on the manner the deceased wished to share her estate without proper reasons.ii.That the learned trial Magistrate erred in law and facts in failing to affirm a properly drawn will by the deceased and her witnesses and the grounds relied on to invalidate the same were improper in law and facts.iii.That the learned trial Magistrate erred in law and facts by failing to ascertain the age of the deceased who was born in 1920 as per her identity card and thus wrongly assumed she had no capacity to do a will contrary to the true facts and evidence tendered.iv.That the learned trial court’s judgment/decree was wrong and made without considering the relevant facts and the law and was based on consideration of irrelevant and inapplicable facts and the law.v.That the learned trial court erred in law and facts in disregarding the cogent evidence tendered by the appellants who were the petitioners.vi.That the learned trial court erred in law and facts by its decision which denied the intended beneficiaries their entitlement and disregarded the expressed wish and written intention of the deceased and wrongly imposed an unacceptable and an inequitable distribution.vii.That the learned trial court’s judgment and decree is not founded on facts as per evidence tendered or the law and therefore wrong and need to be reversed. 9.Directions were given by this court that the appeal be argued by way of written submissions. I will not rehash the submissions, but will, where necessary, refer to them. Analysis and determination 10.Being a first appeal, this court’s duty is to re-evaluate the evidence adduced in the lower court and come to its own independent conclusion (see Selle -vs Associated Motor Boat Co. Ltd and Others [1968] 1. EA 123). 11.The issues for my determination are:a.Whether the deceased could will away the property in question,b.Whether the will in question is valid,c.Whether the appeal ought to be allowed. 12.It is instructive to note that the 1st issue was not raised by the parties. When I noted that it was an important issue, I gave the parties a chance to submit on the same, hence the reason why the delivery of the judgment was deferred. Whether the deceased could will away the property 13.It is evident that the deceased was the 2nd wife of the late M’Kioga Muthagane, who is said to have died in 1966. When the latter died, Meru Succession Cause No. 96 of 1990 was filed in respect to his estate. 14.It is not in doubt that the deceased’s ownership of the property herein came by virtue of the said succession cause, as a widow of the deceased. 15.It is in respect to this property that according to the appellant, the deceased executed the will in question. 16.So what is the nature of the interest or property did the deceased, as a widow/spouse acquire? 17.For the appellants, it was argued that the deceased’s acquisition of the property was as a consequence of getting her share of the matrimonial property. The appellants relied on section 2 of Matrimonial Property Act and urged the court to find that the property was matrimonial property, that was to be reduced from the estate of her late husband in her favour. Cited in support of this argument was the decision in Elizabeth Wanjiru Njonjo Rubia vs Brian Mwaituria Civil Appeal No. 193 of 2018. 18.For the respondents, the argument was that the widow acquired a life interest and upon her death the property reverted to the estate of her deceased husband. 19.The argument by the appellants, although very inviting, has to fail for several reasons. 20.First, the deceased acquired the property way before the enactment of the Matrimonial Property Act. The appellants cannot rely on the said Act to apply it retrospectively. 21.Secondly, the claim has to be made by the widow/spouse herself during her lifetime. The appellants cannot use her status to claim her share as a spouse. 22.Thirdly, even if the court is to agree that this was the deceased’s share of the matrimonial estate, then why is it that only some of the children were entitled to that share, to the exclusion of others like the respondents herein? 23.I find that the argument by the appellants is not only legally unsound but also self-defeating. 24.The other argument on the constitutionality of section 35 of the Law of Succession Act cannot arise at this stage since it is not the widow who is staking her claim in the estate of her husband. If she had wanted to, then she should have done so during her lifetime and not through the appellants. 25.It is thus clear that the deceased’s interest in her husband’s estate was pursuant to section 35 of the Act. 26.Section 35 of the Law of Succession Act provides as follows:35. Where intestate has left one surviving spouse and child or children(1)Subject to the provisions of section 40, where an intestate has left one surviving spouse and a child or children, the surviving spouse shall be entitled to—(a)the personal and household effects of the deceased absolutely; and(b)a life interest in the whole residue of the net intestate estate: Provided that, if the surviving spouse is a widow, that interest shall determine upon her re-marriage to any person.(2)A surviving spouse shall, during the continuation of the life interest provided by subsection (1), have a power of appointment of all or any part of the capital of the net intestate estate by way of gift taking immediate effect among the surviving child or children, but that power shall not be exercised by will nor in such manner as to take effect at any future date.(3)Where any child considers that the power of appointment under subsection (2) has been unreasonably exercised or withheld, he or, if a minor, his representative may apply to the court for the appointment of his share, with or without variation of any appointment already made.(4)Where an application is made under subsection (3), the court shall have power to award the applicant a share of the capital of the net intestate estate with or without variation of any appointment already made, and in determining whether an order shall be made, and if so what order, shall have regard to—(a)the nature and amount of the deceased's property;(b)any past, present or future capital or income from any source of the applicant and of the surviving spouse;(c)the existing and future means and needs of the applicant and the surviving spouse;(d)whether the deceased had made any advancement or other gift to the applicant during his lifetime or by will;(e)the conduct of the applicant in relation to the deceased and to the surviving spouse;(f)the situation and circumstances of any other person who has any vested or contingent interest in the net intestate estate of the deceased or as a beneficiary under his will (if any); and(g)the general circumstances of the case including the surviving spouse's reasons for withholding or exercising the power in the manner in which he or she did, and any other application made under this section.(5)Subject to the provisions of sections 41 and 42 and subject to any appointment or award made under this section, the whole residue of the net intestate estate shall on the death, or, in the case of a widow, re-marriage, of the surviving spouse, devolve upon the surviving child, if there be only one, or be equally divided among the surviving children. 27.It is clear that the spouse/widow acquired a life interest in the property, under sub-section (2) the widow had power of appointment of all part of the wit estate by of gift taking immediate effect (emphasis mine) among the surviving child or children. 28.The subsection is also clear that the power is not to be exercised by will nor in such a manner as to take effect in the future. 29.In simpler terms, the deceased, during her lifetime could have gifted any of her children her share of the estate, but could not, as she did, execute a will that would take effect in the future and upon her demise. 30.Once the surviving spouse passes on the subsection (5) hereinabove kicks in. on this issue, I agree with the finding in Re estate of George Arap Soy where it was held as follows;“By dint of these provisions the surviving spouse is entitled to personal and household effects of the deceased absolutely and to enjoy a life interest on the remainder. The effect of this is that the surviving spouse is not entitled absolutely to the remainder of the estate, as they should only enjoy a life interest over such property. By virtue of Section 35(5) of the Law of Succession Act, the ultimate destination of the remainder of the estate is to the children of the deceased. This is the reason why surviving spouse cannot take the property absolutely. The life interest is held trust by the surviving spouse for the benefit of the children.” 31.In short upon her death, the deceased’s interest in the property was to devolve upon the surviving children equally but subject to sections 41 and 42 of the Act. 32.Section 42 of the Act provides for gifts inter vivos. The law is settled that such gifts are to be taken into account in determination the share of the net estate finally according to a child, grandchild or house of the deceased. 33.In answer to the first issue, it is my finding that the deceased had by operation of the law no capacity to will away her share of the estate of her husband. 34.Having found the above, I think that the second issue, the question of whether the will was valid or not is rendered moot. Even if it was properly executed, it was not lawful, for reasons adduced hereinabove. 35.So how is the deceased’s interest to be shared out? 36.To get an answer to this question, one needs to look at how the estate of the deceased’s husband was shared among his children. Any gift inter vivos made to every child or where applicable the grandchild would be taken account of or provided for under section 42 of the Act. 37.From a perusal of succession cause No. 96 of 1990 it is clear that the appellants moved to court as sons of the deceased therein. They did not include their sisters in the cause. The minutes they used to support the summons for confirmation of the grant in that cause did not contain the names of the appellant’s sisters. Only the sons are listed as having sat as a family alongside the deceased herein. 38.It is thus clear that from the word go, the daughters of the deceased herein were totally excluded from a share of the estate of their father. 39.That exclusion was also evident in this cause where the appellants failed to involve their sisters. 40.The appellant claims that the sisters were present in the meeting but their names were not included. 41.That argument is an insult to the intelligence of any reasonable man or woman. The letter from the chief included the respondent as a child of the deceased herein. The petitioners also included the respondent’s name in the cause but in order to exclude her from the estate, the appellants came up with the impugned will which I have now found to be invalid. 42.What is clear is that the appellants shared their father’s estate amongst the brothers leaving out the sisters. 43.Not satisfied with the shares that they got from the estate of their father, to the exclusion of their sisters they further sought to have the share which their mother got as a widow shared among themselves, again to the exclusion of the sisters, who include the respondent. 44.The conduct of the appellants paints a pattern of open discrimination against daughters of a deceased. 45.The trial court, in its wisdom, found the will in question to be invalid on account of the deceased’s age at the time that she allegedly executed it. The court duly acknowledged that the land that the deceased kept for herself was meant for her daughters, as the sons had already received their share of their father’s estate. 46.The trial court arrived at a decision that in my view was correct in its determination. 47.For different reasons, I arrive at the same conclusion as regards the will. 48.Having considered the matter, I find no reason to disturb the decision of the trial court. It puts an end somehow, to the inexplicable discrimination of the daughters of the deceased’s husband, perpetuated by the appellants themselves. 49.For these reasons, I find that the appeal lacks any merit and it is dismissed with costs. 50.The orders of the lower court should proceed to implementation. DATED, SIGNED AND DELIVERED AT MERU THIS 9TH DAY OF JULY 2026.H. M. NYAGAJUDGE.