[2023] KEHC 26333 (KLR)

Mbaabu & 2 others v Kiugu & another (Civil Appeal E140 of 2022) [2023] KEHC 26333 (KLR) (7 December 2023) (Judgment)

Neutral citation: [2023] KEHC 26333 (KLR)

Republic of Kenya

In the High Court at Meru

Civil Appeal E140 of 2022

EM Muriithi, J

December 7, 2023

Between

Eunice Kajuju Mbaabu

1st Appellant

Beatrice Karwitha Gichuru

2nd Appellant

Lawrence Mutwiri Kibiti

3rd Appellant

and

Mathew Gichuru Kiugu

1st Respondent

Salome Mwarania Gideon

2nd Respondent

(An appeal from the Judgment of Hon. E. Tsimonjero (R.M) in Meru CMC Succession Cause No. 37 of 2020 delivered on 3/10/2020)

Judgment

1. On 1/4/2022, the 1st Appellant filed summons for confirmation of grant where she proposed that L.R No. Nthimbiri/Abonyai/98 measuring approximately 0. 62 Ha (henceforth called the estate property) be distributed solely to the 3rd appellant, on the basis that he was an adopted son to Rose Gauku, the deceased herein. On 19/4/2022, the Respondents filed affidavits of protests in opposition to the 1st Appellant’s mode of distribution as well as the listed beneficiaries. They listed their own beneficiaries and proposed a more equitable mode of distribution that catered for all the beneficiaries they had listed.

2. Upon hearing of the case through affidavit evidence and submissions, the trial court distributed the estate property to the parties herein and other beneficiaries who had initially been left out during the filing of the cause.

The Appeal 3. On appeal, the Appellants filed their memorandum of appeal on 13/10/2022 raising 8 grounds as follows:1. The learned trial magistrate erred in law and fact by his failure to analyse or isolate all the salient issues for determination as contained in the pleadings of all the parties in the case.2. The learned trial magistrate erred in law and fact by failing to adjudicate over all the prayers in the application dated 21st January 2021. 3.The learned trial magistrate erred in law and fact in that he failed to consider or sufficiently consider the affidavits by the appellants.4. The learned trial magistrate erred in law and fact by failing to find that Lawrence Mutwiri Kibiti was adopted as a son of Rose Gauku M’inoti as per the Meru customs since she could not bear children of her own.5. The learned trial magistrate erred in law and fact in failing to appreciate the provisions of section 39 (1) (c) of the Law of Succession Act which provides that the children of the full biological siblings of the deceased have a superior right to inherit their deceased aunt or uncle than the deceased person’s half siblings but the trial magistrate disregarded this and provided for half brothers and children of half brothers who do not rank in priority to brothers and sisters.6. The learned trial magistrate erred in law and fact by not providing for the 1st and 2nd appellants while he provided for other beneficiaries who were not parties to the cause herein.7. The learned trial magistrate erred in law and fact in that he failed to decide the cause between the petitioner and the protestors and objectors and render judgment accordingly.8. The learned trial magistrate erred in law and fact by disregarding the affidavit evidence of the 3rd petitioner, 2nd objector and 3rd objector and their witnesses while upholding those of the 1st and 2nd petitioners and their witnesses against the weight of the evidence.

Duty of the court 4. This being a first appeal, this court is duty bound to delve at some length into factual details and revisit the facts as presented in the trial court, analyse the same and arrive at its own independent conclusions, but always remembering that, the trial court had the advantage of seeing the witnesses testify. (See Selle v Associated Motor Boat Co. & others [1968] E.A. 123).

Submissions to the Appeal 5. The Appellants urge that the 3rd Appellant was an adopted son of the deceased herein, and thus the estate should devolve solely to him, as he ranks high in priority as compared to the Respondents.

6. The Respondents urge that Rose Gauku held the estate property in trust for the 2 households of their deceased grandfather, and cite Charles Makheti v Florence Mukanda Barasa (2020) eKLR. They urge that the application dated 21/2/2021 was finally determined by the trial court vide its ruling of 18/2/2022, and therefore the same is res judicata, and cite Njangu v Wambugu and another Nairobi HCC No. 2340 of 1991 (unreported), Republic v Attorney General and another Exparte James Alfred Koroso (2013) eKLR and Uhuru Highway Development Ltd v Central Bank of Kenya, Exchange Bank Ltd (in voluntary liquidation) and Kamlesh Mansukhlal Pattni (1996) eKLR. They urge that the 3rd Appellant is a biological son to the late Gideon Kibiti, a son to the late M’Inoti M’Mutungi with the late Rebecca Muthoni M’Inoti from the 2nd house, and not an adopted son to the late Rose Gauku, as alleged by the Appellants. They urge that the estate property is ancestral land meant to benefit both households with the 3rd Appellant inheriting from the 2nd house, and cite Re Estate of Ndongu Kabugua (Deceased) (2019) eKLR. They urge that the 3rd Appellant was a grandson of the deceased herein and could only inherit the share of his father Gideon Kibiti (deceased), and cite Cleopa Amutala Namayi v Judith Were (2015) eKLR, Re Estate of Imoli Luhatse Paul (Deceased) (2021) eKLR and Estate of Veronica Njoki Wakagoto (deceased) (2013) eKLR. They submit that the Appellants claim that there was a de-facto adoption holds no water since no ceremony, customary or otherwise was ever conducted to show that the 3rd Appellant was adopted by the deceased herein in accordance with the Meru traditions and customs, and cite Re Estate of M’mwari Kithima (Deceased) (2019) eKLR and Rono v Rono Civil Appeal No. 66 of 2002.

Analysis and Determination 7. Whereas the Appellants contend that the estate property ought to have wholly devolved to the 3rd Appellant, as an adopted son to the deceased herein, the Respondents vehemently deny the purported adoption and maintain that the 3rd Appellant was the son to Gideon Kibiti (now deceased). The Respondents are certain that the estate property was registered in the name of the deceased herein to hold in trust for the larger family of their grandfather, Samuel M’Inoti M’Mutungi (deceased).

8. In its impugned judgment, the trial court rendered thus:“…As it turns out both widows are since deceased. Consequently, the estate shall devolve to the children of the late Samuel M’inoti M’mutungi and where deceased, the estate shall devolve to the surviving grandchildren. The children from the 1st house are; Stephen M’ikiugu M’inoti (deceased) (whose children are Peter Kathurima, Mathew Gichuru and Joseph Guantai Kiugu), Muruga M’inoti (deceased), Kamba M’inoti (deceased) and Kajujum’inoti (deceased). It appears that Muruga M’inoti, Kamba M’inoti and Kajuju M’inoti predeceased their father Samuel M’inoti M’mutungi and did not leave behind any widows or children. The children from the 2nd house are; Rose Gauku (deceased), Eunice Kajuju Mbabu and Gedion Kibiti M’inoti (deceased). Rose Gauku having left no surviving child or spouse, her share of the estate then devolves to her brothers and sisters equally. From the above analysis, the beneficiaries who would have been entitled to a share of the estate are therefore the following; Estate of Stephen M’ikiugu M’inoti, Estate of Gideon Kibiti M’inoti, Eunice Kajuju Mbabu and Beatrice Karwithia Gichuru. I have perused the affidavits of both Eunice Kajuju Mbabu and Beatrice Karwithia Gichuru and neither of them is laying any claim in the estate. They both support the 3rd Objector to be the sole heir of the estate. Had they expressed any interest of their own, this court could have, without hesitation considered them in the final distribution of the estate. In the end, the court comes to the conclusion that there are only beneficiaries of the estate herein, Nthimbiri/Abonya/98 and these are; The estate of Stephen M’ikiugu M’inoti and the Estate of Gideon Kiniti M’inoti. There being only two beneficiaries, the estate property ought to be divided equally between the two of them. I note from the pleadings on record that Gideon Kibiti M’inoti had three wives. It thus means that his share shall be divided equally amongst the three houses….”

9. The record is clear that the deceased herein was a daughter to Samuel M’Inoti M’Mutungi (deceased), the original proprietor of the estate property before its subsequent transfer to Rose Gauku, the deceased herein. The said Rose, Gideon Kibiti (now deceased), the 3rd Appellant’s father, Eunice Kajuju and Beatrice Karwithia, the 1st and 2nd Appellants herein, were siblings. Samuel M’Inoti M’Mutungi had 2 wives, namely Rebecca Muthoni Mburaa and Rebecca Muthoni M’Inoti who have since died.

10. In her affidavit of protest dated 19/4/2022, the 2nd Respondent averred that:“For clarification purposes, I am not a wife to the Late Samuel M’Inoti M’Mutungi. I am the wife to the late Gideon Kibiti M’Inoti, the son to Rebecca Muthoni M’Inoti, who was the second wife to the late Samuel M’Inoti M’Mutungi. The late Rose Gauku M’Inoti was the biological sister to my late Husband Gideon Kibiti M’Inoti, as such, the deceased was my sister in law, and had no children, biological or otherwise, during her lifetime. For clarification purposes, the 3rd objector is the biological son of the late Gideon Kibiti, who I took care of, nurtured, and educated until the university level and as such, cannot purport to be the adopted child of rose Gauku who never had any children during her lifetime. Land parcel No. Nthimbiri/abonyai/98 measuring approximately 0. 62 Ha belonged to the late Samuel M’Inoti M’Mutungi, who was the father to my late husband and the late Rose Gauku M’Inoti herein. As such, the said parcel of land is ancestral family land. Before his death, the late Samuel M’Inoti M’Mutungi, subdivided the suit land to his 2 wives, Rebecca Muthoni Mburaa, his 1st wife and Rebecca Muthoni M’Inoti his 2nd wife, with each household utilizing their respectively allocated parcel of land with their children.”

11. From the above excerpt in the averments by the 2nd Respondent, it is clear that the 3rd Appellant was a son to Gideon Kibiti (now substituted by the 2nd Respondent), and not an adopted son to the deceased herein.

12. This court finds that the trial court was more than fair when it gave the 2nd Respondent and the 3rd Appellant a share of the deceased estate, even when there was evidence that the 3rd Appellant’s share ought to have been excised from that of the 2nd Respondent.

Orders 13. Accordingly, for the reasons set out above, the Court finds that the appeal is without merit and it is dismissed.

14. The appellant shall pay to the Respondents the costs of the Appeal.Order accordingly.

DATED AND DELIVERED THIS 7TH DAY OF DECEMBER, 2023. EDWARD M. MURIITHIJUDGEAppearances:Mr. Kaimenyi for the Appellant.Mr. Ashaba for the Respondent.