[2022] KEHC 11636 (KLR)

MAS & another v Opondo & another (Succession Appeal 4 of 2020) [2022] KEHC 11636 (KLR) (14 July 2022) (Judgment)

Neutral citation: [2022] KEHC 11636 (KLR)

Republic of Kenya

In the High Court at Machakos

Succession Appeal 4 of 2020

MW Muigai, J

July 14, 2022

IN THE MATTER OF THE ESTATE OF MODKAYO OGUTA (DECEASED)

Between

MAS

1st Appellant

Janet Anyango Oguta

2nd Appellant

and

Irene Awino Opondo

1st Respondent

Pamela Atieno Ochar

2nd Respondent

(Being an appeal from the judgment and Decree of the Chief Magistrate Court at Mavoko made on 27th April, 2020 by Hon. C.C Oluoch, Chief Magistrate in Succession Cause No. 21 of 2017)

Judgment

Background 1. The deceased herein, Modkayo Ouma Oguta died on 3rd April, 2016 intestate.

2. On 22nd March, 2017, before the Chief Magistrate’s Court at Mavoko, MAS and Janet Anyango Oguta, the 1st and 2nd Appellants herein respectively applied for a Grant of letters of administration intestate of the estate herein in their capacity as widow and daughter of the deceased. The Grant of letters of administration was issued to the Appellants on 6th February, 2018 by Hon. Agonda, SRM.

3. On 19th November, 2018, when the matter came up for confirmation of the Grant, Hon. C.C Oluoch SPM noted in the Chief’s letter dated 4th January, 2017 that Irene Awino Opondo had been listed as a second wife to the deceased herein but had been left out in the Petition. She directed that the application for confirmation of Grant be served upon Irene Awino Opondo who is now the 1st Respondent in this Appeal.

4. On 26th February, 2019, Irene Awino Opondo filed an Affidavit of Protest/Objection to the confirmation of the Grant stating that she was married to the deceased for three (3) years and blessed with a son called LRO who was born on 8th February, 2015 but she was excluded in the Petition for the Grant of letters of administration and had never been informed.

5. The 2nd Respondent also filed an Affidavit of Protest to the confirmation of the Grant stating that as at December, 15th 2015 the deceased owed her Kshs. 2,160,000/- and that the deceased agreed to hand over a Certificate of Title to the land/house in Syokimau which 2nd Respondent was in custody of with instructions to find a buyer, sell the house and recover the debt.

6. The Trial Magistrate also heard the parties’ viva voce evidence.

7. PW1, MAS stated that she met the deceased in 1996. He was her husband whom she lived with for over 20 years in Umoja 1, Donholm and Tena estates and eventually built a matrimonial home in Syokimau. She stated that they bought the land in Syokimau in 2003 and had a sale agreement to prove the transaction. According to PW1, they finished building a house on it in 2007. She stated that they had four children namely; IK-born in 1994, JA-born in 1996, IP-born in 1997 and JN-born in 2007. It was her testimony that they formalized their marriage in December, 2010 and that’s when the dowry was paid. According to PW1, her father sent Kshs. 20,000/- to her mother to prepare food. She stated that her deceased husband came with other three people namely Odhiambo Oguta, Samuel Onyango Oguta and Walter Ochieng Oguta.

8. It was PW1’s testimony that she knew the protestor whom she had met in their matrimonial home in mid-2014 although the deceased did not introduce the Protestor to her. She stated that she did not participate in the funeral arrangement of the deceased because of the events that took place. According to PW1 she had gone for three weeks before the deceased death. She stated that she learnt in 2014 about the deceased’s treatment for cancer.

9. PW1 stated that she was not aware that the deceased had used the title deed as security. It was PW1 testimony that in March, 2016 three weeks before the demise of the deceased, the deceased told her that there was no need of her leaving the house but sell the house and educate their children using the proceeds. She stated that when Irene was pulling her out, her husband was trying to stop Irene.

10. In cross-examination by Mr.Odhiambo, PW1 stated that I is not a biological son of the deceased. She denied that she left to stay with the father of I. PW1 stated that the sale agreement showed the deceased and her purchased the property although her name did not appear in the title deed. She stated that she was working in Kisumu at the time. She stated that the deceased agreed that the parcel of land be registered in his name.

11. It was PW1 testimony that she does not consider Irene as a wife of the deceased. According to PW1, by the time they were moving into the house, it was complete but she didn’t have a Certificate of Completion. She stated that she stayed in the rental house in Donholm as they were sorting out their marital issues. According to PW1, they already drew a consent on distribution of the property. She stated that there were no further developments to the house after she left. She stated that she and the children did not attend the deceased funeral.

12. In re-examination, PW1 stated that the deceased took care of IK as his own son as the deceased used to visit him at Technical University in 2014 and 2015. She stated that she left her matrimonial home in 2011. She stated that they did not divorce in court or traditionally. PW1 stated that she had excluded the Protestor as a beneficiary because she had been paid benefits from NSSF. It was PW1 testimony that the deceased had in custody the title deed while she had the Sale Agreement. She stated that she lodged the caveat over the land in 2014 which was presented to the deceased hence the land could have not been used as security.

13. PW2, Thoma Arara Midega stated that he knew the deceased since the deceased had come to Kibera to pay dowry for his cousin’s daughter M.

14. PW3, Hellen Jalenda Azere stated that she knew the deceased as a husband to her former colleague. She stated that she used to work with Metro Cash from 1997 to 2005 and lived in Syokimau. She stated that her house was about five minutes away from PW1 and deceased house. PW3 stated that M and Oguta had 2 children when she started working with M but later got other two children. According to PW3, PW1 and deceased built the house together.

15. In cross-examination by Mr. Odhiambo, PW3 stated that she couldn’t recall when the deceased stopped living with M and didn’t know who was staying there when M left.

16. DW1, Irene Awino Opondo stated that she lived in Syokimau and sells building materials. DW1 stated that the deceased was her husband since they got married in April, 2014 but knew each other in 2013. She stated that they started cohabiting in January, 2014. She stated that the deceased told her that he had another woman but there was a misunderstanding that led the first wife to get married to another man. She stated that they were blessed with one child in February, 2015 who was called W. DW1 stated that the house was incomplete when they moved in but they put floor tiles, permanent wall and ceiling. It was DW1 testimony that the deceased had in October, 2014 been admitted at KNH and due to the deceased illness, she was taking care of him until his demise.

17. It was DW1’s testimony that her co-wife only came to visit the deceased at KNH when the deceased had undergone surgery. DW1 stated that her co-wife came to her house in March, 2016 with all the children but the co-wife left with her son and left behind three girls. DW1 stated that she stated that the deceased had to pay school fees but her sister in laws proposed the children be taken upcountry for cheaper education and build her a house in Oyugis but she declined by not attending the meeting. DW1 stated that she came two weeks before her husband died as she was not in talking terms with her. DW1 stated that her husband stayed exclusively with her and there was no woman in that house. She stated that she made developments in the house ceiling, kitchen finishing, tank (6000 litres), pit and septic latrine.

18. It was DW1 testimony that the title was in the name of her late husband. She stated that she was not aware of the caveat registered against the title as she came to know about the caveat in court. According to DW1, her husband told her that the first wife had stolen the title deed and a new one was issued. It was DW1, testimony that her sister in law had given her husband 2. 16 Million in 2014 by installments for finishing the house before his demise. DW1 stated that the title deed was given to her sister in law as security. DW1 stated that she is entitled to a substantial part of the house because of the developments and taking care of her husband.

19. In cross-examination, DW1 stated that her husband told him that he bought the land by himself and believed him since he had the title deed in his name. She stated that she does not have the receipts in court to show the developments made to the house. It was DW1 testimony that she did not acquire the property with the deceased but she was claiming a share of the property as a wife of the deceased. DW1 stated that the deceased gave title to the sister in law in December 2014 but she could not remember the date. She stated that she could not tell how much was given for development of the house and treatment but Kshs. 2,000,000/- was to be refunded.

20. In re-examination, DW1 stated that the purpose of the money received was to finish the house as the deceased could not sell the house because it was not complete. She stated that the deceased wanted to sell the house then get the money to go to India for treatment. It was DW1 testimony that the deceased was not aware of the caveat when he gave his sister the title deed. DW1 stated that she was aware that she had a co-wife and she had no issue with that. According to DW1, PW1’s father told them that PW1 would not bury the deceased as she had decided to go back to the first husband.

21. DW1 stated that she had no problem sharing the estate with her co-wife and there was a mother in law who was in wheel chair hence ought to be given something.

22. DW2, Pamela Atieno Ochar stated that the deceased was his elder brother. DW2 stated that the deceased had a first wife called M who had left in 2011 and his brother married a second wife under Luo Customary law whereby dowry was paid. According to DW2, the deceased was living with Irene when ailing but stated that he had moved in with M first when the house was incomplete as the floor was not plastered, with no ceiling and fence. DW2 stated that M ran away.

23. It was DW2 testimony that since his deceased brother was ailing but wanted to complete the house, DW2 talked to his partner in business whereby the gave the deceased Kshs. 2,160,000/- against the title deed as a security. He stated that he had attached a bank statement to show how he withdrew the money. DW2 stated that he had the title deed to date but the first title deed got lost and was replaced with a duplicate. According to DW2, he was willing to return the title deed if paid the money. It was DW2 testimony that M’s father told them that M had decided to go back to the first marriage and would decide whether or not the children would attend the burial.

24. In cross-examination by Opiyo, DW2 stated that he gave the deceased money as his brother buy they did not sign any agreement although the deceased gave him the title deed as security. DW2 stated that he never did a search as he knew the land belonged to the deceased. According to DW2, he had not tried selling the land after the deceased demise. DW2 stated that he gave him money to do renovations. He stated that in 2014 he went to their house in Syokimau to get the title deed.

25. DW2 stated that he withdrew the money on 24/11/14 but he stated that he did not know what he did with it although the cheque counterfoil would show what he did with the money. He stated that he had not presented to court an audited statement to show how he used the money.DW2 stated that he had not presented a photograph to show the house was incomplete.

26. In re-examination, DW2 stated that he used to contribute Kshs. 70,000/- for chemotherapy and was also providing food. He stated that he is not claiming what went into treatment.

27. DW3, EOO stated that the deceased was his biological brother. DW1 stated that he knew MAS who was married to his brother but separated in 2011. DW3 stated that the deceased brother died in 2016 while staying with the second wife. It was DW3’s testimony that his sister Pamela paid for the deceased treatment and his family members contributed. According to DW3, Pamela was given the title deed. According to DW3, his brother borrowed money from his sister to complete the house and her sister business partner asked for security hence the title deed was given. DW3 stated that Oguta’s family knew about the payment.

28. DW3 stated that M’s father told them that M had gone back to her first husband and could not bury the husband. DW3 attached minutes of the meeting. It was DW3 testimony that M came after the burial of her husband. It was DW3’s testimony that the Chief called them to identify M as she wanted the Chief to write a letter to her so as to get a bursary.

29. In cross-examination, DW3 stated that the title deed was given in 2014 when the deceased was alive as he did not have to consult his wife and children. DW3 stated that the deceased wanted them to sell the house to finance the treatment. He stated that they could not talk to M since they did not know where she was.

30. DW4, Jemimah Oguta stated that the deceased was his brother. He stated that they were contributing for his food and treatment. DW4 stated that the deceased was staying with Irene a second wife but there was a first wife who left in 2011. DW4 stated that when the deceased lived with M, the house was not complete and is still not complete. He stated that Pamela gave his brother Kshs. 2 Million and his brother gave Pamela the title deed as a security. That his brother told him about the money. DW4 stated that M’s father told them that M had gone back to the first husband. He stated that M did not attend the burial as well as her children.DW4 stated that they recognize Irene as a wife of his late brother.

31. In cross-examination by Opiyo, DW4 stated that it was his deceased brother who told him about the loan.

Trial Court’s Judgment 32. In her Judgment, the Trial Magistrate found that the 1st Appellant and the 1st Respondent were wives of the deceased herein. Regarding the 2nd Respondent’s claim over the house/land in Syokimau, the Trial Magistrate found that the claim did not fall within the jurisdiction of the Trial Court as a Succession Court but a Civil Court.

33. Regarding the distribution of the estate, the Trial Magistrate found that the property was registered in the name of the deceased and not any of the spouses hence proceeded to invoke her discretion to ensure equitable distribution of the property and Section 40 of the Law of Succession Act. She directed that the administrators were to hold the shares for minors in trust until they became of age or until the Court gave further orders.

34. In the end, the Trial Magistrate held as follows;a.LR No.12715/3208 to be sold and proceeds of sale be shared in the ratio of 55% to 45% between the 1st wife MAS and 2nd wife Irene Awino Opondo. The 1st wife shall take 55% of the proceeds of sale as she has more children than the 2nd wifeb.The proceeds of sale will then be shared equally among the children of the deceased and wives according to the ratio allocated to themc.Shares of minors, IPO, JNO and LRO shall be paid out of interest earning accounts to be opened by the administrators in consultation with their advocates. Their shares shall only be appropriated with the leave of court.d.The 2nd Protestor, Pamela Atieno Ochar, shall surrender the title deed to the court administrator Mavoko Law Courts, within forty (45) days from the date of this judgment, to supervise disposal of the property.e.Each party shall bear its own costs.

Memorandum Of Appeal Dated 17. 8.2020 35. Aggrieved by the Judgment, the Appellants have appealed citing 19 grounds of appeal. They have urged this Court to allow their appeal and vary the Trial Magistrate’s judgment to the extent:-a.That a finding be made that the Protestor Irene Awino Opondo (i) did not prove that she was a wife and/or otherwise that (ii) she does not qualify as a beneficiary to the estate.b.That the estate of the deceased constituted of land parcel LR No. Mavoko Municipality 12715/3208 be shared by six (6) units constituted of the (1) of the wife MAS and the five (5) children namely (2) IKK (3) JAO (4) IPO (5) JNO (6) LRO.c.That costs be awarded to the Appellant.d.That the Court do make any other or further directions and/or orders in the interest of fairness and justice.

Appellants’ Submissions 36. On behalf of the Appellants, it is submitted that the Appellants in summary dispute the findings of the Trial Court that;1. The sole asset of the estate being the property known LR No. 12715/3208(hereinafter the property) absolutely belonged to the deceased;2. The 1st Respondent was a wife of the deceased; and3. The distribution of assets in the ratio of 55:45 between the family of the 1st Appellant and that of the 1st Respondent.

37. The Appellants proposed the following grounds for determination;

a.Whether the Sole Property of the Estate was Held in Trust on behalf of the 1st Appellant. 38. This issue covered grounds 7, 8 and 9 of the appeal. It is submitted that before proceeding with the distribution of the assets of an estate, the court must establish what assets form part of the estate of the deceased as well as determining the debt of the estate in order to distribute only the net estate.

39. According to the 1st Appellant, no evidence was adduced to rebut the evidence of the 1st Appellant as to the fact that they bought the property with the deceased as per the Agreement dated 26th August, 2003 which is attached to the affidavit dated 2nd April, 2019 found at page 55 of the Record of Appeal but the Trial Magistrate despite acknowledging there was an agreement, disregarded the evidence stating that it was immaterial that the Sale Agreement showed the 1st Appellant as a joint purchaser of the property. It is submitted that there was intention of the parties since the 1st Appellant contributed the purchase money and her name appeared in the said Sale Agreement.

40. The 1st Appellant asserts that since she was in Kisumu and the deceased was in Nairobi, they agreed that it was convenient for the property to be registered solely in the name of the deceased as the transaction was being undertaken in Nairobi. According to the Appellants, in presuming a resulting trust, it does not matter that the property was registered only in the name of the deceased. Reliance was placed on the case of Juletabi African Adventures Limited & Another vs. Christopher Michael Lockley [2017] eKLR.

41. According to the Appellants, the Trial Magistrate misapplied the law in reaching her finding that the property solely belonged to the deceased.

b.Whether the 1st Respondent proved that she was a Wife of the Deceased (Ground 10,11,,12,13 and 14) 42. It is submitted that 1st Respondent was introduced to the suit by an order/direction of the Trial Magistrate to be served since she appeared as a wife in the Chief’s letter dated 4th January, 2017 and proceeded to direct the parties to enter into a consent dated 24th July, 2019 to join the 1st Respondent as a beneficiary and an administrator of the estate herein. According to the Appellants, the said Chief was not listed as a witness and his letter is not proof of marriage. That his letter is merely an introduction to what he may know of the members of his location and the contents are often dictated upon by the family member(s) who approach the Chief for the said letter. It is therefore without evidence/proof of low evidentiary value.

43. Reliance was placed on the case of ASA vs. NA & Another [2020] eKLR. It is submitted that the contents of the said Chief’s letter should be considered as hearsay.

44. According to the Appellants, despite the 1st Respondent citing Luo custom under which a traditional marriage ceremony was conducted to prove that she was married to the deceased, no parent or any witness was called in court to confirm the ceremony or payment of the dowry.

45. It is submitted that the burden of proof in such matters fall on the person alleged to be married as the Court of Appeal made reference to the case of Hortensia Yawe vs. The Public Trustees, Civil Appeal No.13 of August 6, 1976 referred to by Wendoh J. in ASA vs. NA & Another (supra). According to the Appellants, the 1st Respondent did not meet the threshold to prove that she was married to the deceased either under customary law or by presumption of marriage under common law.

46. It is therefore submitted that the Trial Magistrate erred in making the presumption based on the Chief’s letter and unduly influencing the 1st Appellant to enter into a consent.

c. Whether the court erred in Distributing the Estate of the Deceased in the Ratio of 55%:45%(Ground 1,2,3,5,6 and 18) 47. According to the Appellants, the Trial Magistrate erred in distributing the estate of a polygamous family in the ratio of 55:45. It is submitted that the distribution envisaged under Section 40 of the Law of Succession was considered in the case In re Irene Mabuti Gitari vs. Zacharia Njege Gitari [2017] eKLR where the estate was distributed according to the number of children each being one (1) unit and each wife being an additional unit which is not the case herein.

48. Reference was made to the viva voce evidence of the 1st Appellant that she had four (4) children while the 1st Respondent had one child(1) and each of the wife being added as a unit. According to the Appellants, by following Section 40(supra), she ought to have reached the decision that the units be divided into the ratio of 5:2.

49. Reliance was placed on the case In re estate of Zablon Komingoi Mateget [2018] eKLR where the units are seven (7) divided into a ratio of 5:2. It is submitted that if the rule in Section 40 was to be used, it would have been 71. 4% to the 1st House and 28. 5% to the 2nd House. According to the Appellants, awarding 45% to the 1st House was discriminatory when it had more children that the 2nd House. It is submitted that the provisions of Section 40 LSA are mandatory and not discretionary.

50. According to the Appellants, given that they have shown that the 1st Respondent is not a beneficiary, the estate should be divided only among the remaining beneficiaries. It is submitted that the decision of the Trial Magistrate should be interfered with as it was based on a misapprehension and/or misapplication of the law.

d.With whom did the Burden of Proof Lie at the Trial Court(Ground 15) 51. According to the Appellants, the 1st Respondent became the Plaintiff in the Affidavit of Protest since she was objecting to the mode of distribution hence the burden of proof lay upon her and not the Appellants herein. Reliance was placed on the case In re Estate of Margaret Kedogo (Deceased) eKLR. It is submitted that the burden was shifted to the Appellants as they testified first instead of the Respondents hence prejudicial to the Appellants.

e.Whether the Magistrate in considering all the Evidence Misapprehended the Law and Misapplied Facts in Reaching a Wrong Decision(Grounds 16,17,18 and 19) 52. It is submitted that the Trial Magistrate considered the Chief’s Letter as proof of marriage when the Court had not heard the Chief’s evidence or any other evidence on proof of marriage. That Section 40 of the Law of Succession Act is not discretionary but mandatory.

f.What Orders ought to be Issued Given the Above 53. According to the Appellants, the Trial Court judgment should be varied and the Court finds that the 1st Respondent did not prove that she was a wife and/or a beneficiary to the estate and that parcel of land No. Mavoko Municipality 12175/3208 be shared by six units constituted of the (1) wife MAS and the 5 children namely IKK, JAO, IPO, JNO and LRO.

54. The Appellants sought costs to be awarded to them.

Respondent’s Submissions 55. On behalf of the Respondents, it is submitted that the only three (3) issues that fall for determination are;

a.Whether the 1st Appellant is a Wife for the Purposes of Succession 56. It is submitted that all of the Protestors witnesses led evidence to the effect that the deceased actually went to the 1st Respondent’s home in 2014 and paid dowry in solemnization of their customary wedding. That DW1, DW2 and DW3 recognized the 1st Respondent as their late brother’s wife and no evidence was led during their cross-examination that the 1st Respondent was not a wife. According to Respondents, none of the Appellants attended the marriage ceremony between the deceased and the 1st Respondent hence they were unable to comment if the ceremony took place or not.

57. According to the Respondents, the consent which incorporated the 1st Respondent as an administrator was entered into by the parties’ advocates and at no point did the parties to the suit directly talk to the consent order hence the issue of coercion and undue influence does not arise. It is submitted that the issue of the impropriety of the consent is an afterthought which does not assist in the solution of the instant dispute in any way.

b.Whether there was a Trust held by the Deceased over the Property of the Estate on Behalf of the 1st Appellant 58. It is submitted that the 1st Appellant did not produce any document to show that she was working in Kisumu. According to the 1st Respondent, the sale agreement is a forgery for the following reasons;i.The 1st Appellant never called the vendors whose names appear in the said agreement to testify that indeed she was one of purchasers.ii.The only persons who could ascertain the authenticity of the agreement were the alleged vendors.iii.That details of the sale agreement are transmitted onto the transfer forms hence both the names of the deceased and the 1st Appellant ought to have been included in the title deed.

59. According to the Respondents, there cannot exist a trust since the deceased person bought the property in the year 2003 and the Certificate of Title issued on 2nd June, 2005. It is submitted that the customary wedding was conducted in December, 2010, this is 7 years after the deceased had acquired the suit property hence it does not form part of the matrimonial property as it was acquired before the subsistence of the marriage. Reference was made to the definition of what is matrimonial property under the Matrimonial Property Act No.43 of 2013.

60. According to the Respondents, it was improper for the Trial Magistrate to find that there was a trust yet the Appellants never claimed or sought to establish one at the trial stage hence a fresh issue that the Appellants are attempting raise and litigate at the appellate stage.

c.Whether the Trial Court was Correct to Share the Estate in the Manner it did i.e 55% to 45% as Between the First and Second Households 61. According to the Respondents, the literal interpretation of Section 40 of the Law of Succession Act which the Appellants sought to have the Trial Court adopt would be that the proceeds of the estate of the deceased should be divided into 7 units and assign the 1st Family 5 units and relegating 2 units for the 2nd family. According to the Respondents, the Trial Magistrate applied Section 40(1)LSA in the liberal interpretation rather than the literal way to achieve equity rather than equality.

62. It is submitted that the 1st Appellant did not demonstrate that she or her children were dependents of the deceased immediately prior to the deceased death as provided by Section 29 LSA. According to the Respondents, the 1st Appellant returned the children to the deceased two weeks prior to his death under the pretext that he should pay their school fees. That since the 1st Appellant went back to her former husband, she and her first son ceased to be the dependents of the deceased herein but the other children who are biological children of the deceased are beneficiaries of the estate. According to the 1st Respondent, his son is very young unlike the 1st Appellant’s children who are adults and she deserves more support hence a justification to the manner in which the Trial Magistrate shared the estate.

63. According to the Respondents, the Appellants have not demonstrated that the discretion was wrongfully exercised hence it should be left to stand. It is submitted that the 1st Appellant only came back out of greed and to reap where she did not help sow. The Respondents urged the court to find that the appeal is unmerited and dismiss it with costs.

Determination 64. This being the first appellate court, its duty is well expressed in Selle vs. Associated Motor Boat Co [1986] EA 123 where court held as follows:-“The appellate court is not bound necessarily to accept the findings of fact by the court below. An appeal from the trial court by the high court is by way of a retrial and the principles upon which the Court of Appeal acts are that the court must reconsider the evidence, evaluate it itself and draw its own conclusions through it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect in particular the court is not bound necessarily to follow the trial judge’s findings of fact if it appears either that he has clearly failed on some point to take account of particular circumstances or probabilities materially to estimate the evidence or if the impression based on the demeanour of a witness is inconsistent with the evidence in the case generally.”

65. The Court of Appeal in Ephantus Mwangi and Another vs. Duncan Mwangi Civil Appeal No. 77 of 1982 [1982-1988] 1KAR 278 that:“A member of an appellate court is not bound to accept the learned Judge’s findings of fact if it appears either that (a) he has clearly failed on some point to take account of particular circumstances or probabilities material to an estimate of the evidence, or (b) if the impression based on the demeanour of a witness is inconsistent with the evidence in the case generally.”

66. I have considered the grounds of appeal, documentary and viva voce evidence on record, issues raised and the submissions filed on behalf of respective parties. The issues that emerge for determination are:-1. Whether the 1st Respondent had proved that she was a wife and a beneficiary of the deceased.2. Whether parcel of land LR Mavoko Municipality 12715/3208 was held in trust by the deceased for the 1st Appellant3. What mode of distribution to the estate of the deceased ought to have been applied.Whether the 1st Respondent had proved that she was a wife and a beneficiary of the deceased

67. It is trite that the legal burden of proof lies with the person who alleges. Section 107 (1) of the Evidence Act, Cap 80 Laws of Kenya provides that:-Whoever desires any court to give judgment as to any legal right or liability dependant on the existence of facts which he asserts must prove that those facts exist.

68. The opposing party bear the evidential burden of proof which is well captured under Sections 109 and 112 of the same Act as follows:Section 109The burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence, unless it is provided by any law that the proof of the fact shall lie on any particular person.Section 112In civil proceedings, when any fact is especially within the knowledge of any party to those proceedings, the burden of proving or disproving the fact is upon him.

69. Based on the evidence on record, the court’s view is that the Chief’s letter was sufficient to find that the 2nd Respondent was a wife/widow to the deceased since the 1st Appellant and her witnesses did not sufficiently rebut that evidence. The 1st Respondent’s testimony was supported by the deceased siblings that she was recognized as a wife to the deceased. DW2’s evidence that the 1st Respondent was married by the deceased under Luo customary law and dowry was paid was not challenged during cross-examination. PW1 stated that she left the matrimonial home in 2011 and in mid-2014 she had met the 1st Respondent at the matrimonial home. The 1st Respondent siblings have stated that she stayed with the deceased at the matrimonial home and took care of the deceased both at home and in hospital until his demise.

70. I find that the Trial Magistrate did not error to find that the 1st Respondent was a wife of the deceased as well as a beneficiary to the estate of the deceased.Whether parcel of land LR Mavoko Municipality 12715/3208 was free property capable of distribution

71. According to the Respondents, parcel of land LR Mavoko Municipality 12715/3208 is exclusively a property of the deceased hence subject to a trust as submitted by the Appellants. The Trial Magistrate held that the parcel of land was registered in the name of the deceased and not any of the spouses despite there being a sale agreement 26th August, 2003 that shows the 1st Appellant to be a joint purchaser.

72. ‘Free property’ has been defined under Section 3(supra) to mean:“free property", in relation to a deceased person, means the property of which that person was legally competent freely to dispose during his lifetime, and in respect of which his interest has not been terminated by his death;..”

73. ‘Estate’ has been defined under Section 3 of the Law of Succession Act as follows;-“estate" means the free property of a deceased person;.”

74. The Appellants fault the Trial Magistrate for not finding that the parcel of land belonged to the 1st Appellant and the deceased based on a sale agreement. It was the view of the Trial Magistrate that it was immaterial that the sale agreement did show the 1st Appellant to be a joint purchaser.

75. In this Appeal, the Respondents have contested the authenticity of the sale agreement on the basis that it is a forgery. According to the Respondents, the vendors were not called in court to testify that the 1st Appellant was one of the purchasers and that if the sale agreement was genuine, then the 1st Appellant’s name ought to have appeared in the title deed but she did not. However, I note in cross-examination, the 1st Appellant stated that she agreed to have the parcel of land registered in the name of deceased since she was busy working in Kisumu.

76. It was the 1st Appellant’s evidence that they purchased the parcel of land in 2003. According to the 1st Appellant, they built a matrimonial home on it which was completed in 2007 and they moved in from Donholm where they were tenants.

77. The Court’s view is that having established that there was a sale agreement that established the 1st Appellant to be one of the purchasers, the said parcel of land was not a free property for the deceased to dispose during his life time. The 1st Appellant had a proprietary interest over that parcel of land hence the reason why she lodged a caveat over the parcel of land. It is not in dispute that the 1st Appellant was the first wife from 1996 and therefore survived the deceased. The parcel of land was therefore jointly owned as depicted by the Sale agreement between the 1st Appellant and the deceased despite the title to land indicating that it was the deceased who was the registered owner.

78. This principle of survivorship over jointly owned property operates to exclude the property from the Law of Succession Act upon the death of one of the joint tenants. The said property is not available for distribution to the beneficiaries of the estate.

79. In the case of Isabel Chelangat vs. Samuel Tiro(2012) eKLR, the principle of survivorship also known as ‘jus accrescendi’ was expounded where it was stated:‘At this juncture, I must distinguish between joint ownership of land and land held in common. These are two different types of tenancies by which two or more people are entitled to simultaneous enjoyment of land. To expound on this point I have borrowed heavily from two texts, Megary & Wade, The Law of Real Property [2] and Cheshire & Burn’s, Modern Law of Real Property, [3]. According to Burn, “...a joint tenancy arises whenever land is conveyed or devised to two or more persons without any words to show that they are to take distinct and separate shares…”[4]. Further, that “there is a thorough and intimate union between joint tenants. Together, they form one person.”[5]A joint tenancy imparts to the joint owners, with respect to all other persons than themselves, the properties of one single owner. Although as between themselves joint tenants have separate rights, as against everyone else they are in the position of a single owner. Joint tenancy carries with it the right of survivorship and “four unities”. The right of survivorship (jus accrescendi) means that when one joint owner dies, his interest in the land passes on to the surviving joint tenant. A joint tenancy cannot pass under will or intestacy of a joint tenant so long as there is a surviving joint tenant as the right of survivorship takes precedence. The four unities that must be present in a joint tenancy are(i)The unity of possession.(ii)The unity of interest.(iii)The unity of title.(iv)The unity of time.On unity of possession, each co-owner is entitled to possession of any part of the land as the other/s.[6] One co-owner cannot point to any part of the land as his own to the exclusion of the other/s. If he could, then this would be separate ownership and not co-ownership. No one co-owner has a better right to the property than the other/s, so that an action for trespass cannot lie against another co-owner. Unity of interest means that the interest of each joint tenant is the same in extent, nature and duration, for in theory of law, they hold just one estate.[7] Unity of title means that each joint tenant must claim his title to the land under the same act or document. This is satisfied by having the joint tenants acquiring their rights by the same conveyance and being so registered as joint tenants. Unity of time means that the interest of each tenant must vest at the same time.”

80. According to the Judge William Musyoka in his book “Law of Succession” published by Law Africa at page 36, he discusses survivorship as follows:“This applies in cases of joint tenancies that is where property is jointly owned. Where a co-owner of property is a beneficial joint tenant of the property, whether real or personal, their interest will automatically pass to the surviving joint tenant (s) upon their death by virtue of the principle of survivorship, otherwise known as the principle of jus accrescendi. Upon the demise of one of the tenants, that tenants’ interest would merge with that of the surviving tenant…..The principle of survivorship operates to remove jointly owned property from the operation of the law of succession, upon the death of a spouse who jointly owns property with the other spouse.”

81. In Re Estate of Johnson Njogu Gichohi (Deceased) Succession Cause No. 112 of 2016 [2018] eKLR where L.W. Gitari L J. held as follows: -“Section 60 of the Land Registration Act provides:“If any of the joint tenants of any land, lease or charge dies, the Registrar shall, upon proof of death delete the name of the deceased tenant from the register by registering the death certificate.”This means that where property is in the names of joint owners, upon the death of one of them, the surviving owner automatically becomes the owner upon presenting the evidence of death of the joint tenant i.e death certificate to the registrar. The property automatically passes to the surviving joint tenant. This principle of survivorship over jointly owned property operates to exclude the property from the Law of Succession Actupon the death of one of the joint tenants. I am in agreement with the holding by Achode J. – Mwangi Gakuri v Bernard Kigotho Maina & Another, H.C NBI. Succ. Cause No. 2335/2011 where she stated:“Property is capable of passing upon death other than by will. It may pass by survivorship…….. This applies in cases of joint tenancies that is, where property is jointly owned. Where a co-owner of property is a beneficial joint tenant of the property, their interest will automatically/pass to the surviving tenant upon their death by virtue of the principle of survivorship…… The principle of survivorship operates to remove jointly owned property from the operation of the law of Succession upon the death of one of the joint tenants….”My view is that as the objector and the deceased were joint owners, the objector as the surviving joint owner was entitled to acquire ownership without being subjected to the process of intestacy.”

82. The Court finds that the parcel of land LR Mavoko Municipality 12715/3208 does not exclusively form part of the estate of the deceased as the deceased could not be freely disposed off it in his lifetime without knowledge and/or consent of the Appellant as joint owner. By virtue of the principle of survivorship, the 1st Appellant became the owner of the parcel of land upon the death of the deceased herein. The effect of this then is that parcel of land LR No. 12715/3208 ceased to form part of the estate of the deceased and was not available for distribution in the estate of the deceased herein.

83. Having found that the 1st Appellant automatically became the owner of the said parcel of land, it is therefore needless for the court to delve into the mode of distribution that ought to have been applied by the Trial Magistrate. The parcel of land does not form part of the estate of the deceased.

84. Pursuant to Section 60 of the Land Registration Act, the 1st Appellant does not even need to initiate a succession cause to have the property transferred to her name.

Dispositiona.In the premises, the Appeal is partly upheld and partly dismissed.

b.Each party to bear their own costs.Judgment accordingly.

DELIVERED, DATED AND SIGNED AT MACHAKOS THIS 14TH JULY, 2022 (VIRTUAL CONFERENCE).M.W. MUIGAIJUDGE