[2023] KEHC 24795 (KLR)

Miano & another v Miano & 2 others (Civil Appeal 44 of 2019) [2023] KEHC 24795 (KLR) (3 November 2023) (Judgment)

Neutral citation: [2023] KEHC 24795 (KLR)

Republic of Kenya

In the High Court at Kerugoya

Civil Appeal 44 of 2019

LM Njuguna, J

November 3, 2023

IN THE MATTER OF THE ESTATE OF KINYI GACHAGUA alias KINYI NJANJA (DECEASED)

Between

Jackson Maina Miano

1st Appellant

David Muthike Miano

2nd Appellant

and

Gichira Samson Miano

1st Respondent

Mary Waithira Njuguna

2nd Respondent

Veronicah Wanjiru Wamugunda

3rd Respondent

(Appeal from the Judgment of Hon. S.M.S. Soita CM delivered in Chief Magistrate’s Court Kerugoya Succession Cause No. 192 of 2004 on 24th December 2018)

Judgment

1. By a memorandum of appeal dated 28th June 2019, the appellants seek orders that the appeal herein be allowed, the judgment of the subordinate court be set aside and be substituted with a judgment in the terms proposed by the appellants, and costs. The appeal is premised on the grounds that:a.The learned magistrate erred in law in his judgment in distributing the estate of the deceased;b.The learned magistrate erred in law and fact in confirmation of the grant which showed that the two properties in the estate of the deceased were to be shared equally by all the beneficiaries;c.The learned magistrate erred in law and fact, as the judgment does not propose mode of distribution of the estate of the deceased among the beneficiaries;d.The learned magistrate erred in law and fact in relying merely on affidavits instead of viva voce evidence as adduced in court;e.The learned magistrate erred in law and fact in failing to consider the deceased oral will gifting one parcel of land namely Mwerua/Githimu/031 to Jackson Maina, David Muthike and Timothy Irungu;f.The learned magistrate erred in law and fact in failing to consider the evidence adduced in court by two widows of the deceased who confirmed the three grandchildren of the deceased as beneficiaries through an oral will;g.The learned magistrate erred in law and fact in dismissing the protestors as ranking below the beneficiaries and only having a claim over their father’s estate even though they were beneficiaries;h.The learned magistrate erred in law and fact in failing to consider the wayleave agreement with Kenya Power relating to land parcel number Mwerua/Githimu/031;i.The learned magistrate erred in law and fact in dismissing the protestor’s claim; andj.The learned magistrate erred in law and fact in making a finding that the protestors had not proven their claim on a balance of probabilities.

2. The respondents filed summons for confirmation of grant dated 07th June 2017 seeking confirmation of the grant issued on 29th January 2009 to the 1st and 2nd respondents. The summons for confirmation was supported by the affidavit sworn by the 1st appellant wherein he suggested the mode of distribution as follows:Mwerua/Kithumbu/31David Muthike Miano- 1. 08 haTimothy Irungu Miano- 1. 08haJackson Maina Miano- 0. 68 haEunice Wangeci GathumbiMary Waithira GathumbiJoyce Wanjiru Makumi Jointly to hold 0. 0404 haElizabeth Njoki MianoMwerua/Chumbiri/251David Muthike Miano- 0. 67 haTimothy Irungu Miano- 0. 47 haJackson Maina Miano- 0. 535 haGichira Samson Miano- 0. 335 ha

3. An affidavit of protest was filed by Jackson Maina Miano, Mirriam Ngenesi Muriithi and Joyce Wanjiru Mukami who are grandchildren of the deceased, challenging the mode of distribution of the estate on the basis that parcel number Mwerua/Kithumbu/31 had an existing easement which the deceased gave to East African Power and Lighting Company Limited in 1978. It was their case that all the grandchildren had equal rights to the estate of the deceased and that they have been utilizing the land even before the deceased died.

4. Another affidavit of protest was filed by Gichira Samson Miano and Mary Waithira Njuguna who are also grandchildren of the deceased and whose father had died in 2003. They stated that prior to his death, the deceased had subdivided his property three ways to his three wives. That 1st and 2nd appellants together with Timothy Irungu pretended to be the sons of the deceased for purposes of succession and only dropped the act when the issue was brought to the attention of the court. That the issue was settled out of court, culminating into the appointment of the 1st and 2nd respondents as administrators.

5. Veronicah Wanjiru Wamugunda who is a daughter of the deceased, also filed an affidavit of protest contesting the proposed mode of distribution of the estate because she had been left out. She suggested that land parcel number Mwerua/Kithumbu/31 be divided equally amongst the following:Veronica Wanjiru WamugundaDavid MuthikeGichira Samson MianoPeris WangeciEunice GathumbiMilka WanjiruMary Waithira NjugunaFaith WanjikuJoyce Wanjiru MakumiTimothy IrunguMiriam Ngereci MuriithiJoseph KariukiBenson MurimiMary NditiNelson MuriukiJohn KiamaRose WanjiruWinnie WaithiraShe proposed that land parcel number Mwerua/Chumbiri/251 be distributed equally amongst the following:Elizabeth NjokiDavid MuthikeGichira Samson MianoPeris WangeciEunice GathumbiMilka WanjiruMary Waithira NjugunaFaith WanjikuJoyce Wanjiru MakumiTimothy IrunguMiriam Ngereci MuriithiJoseph KariukiBenson MurimiMary NditiNelson MuriukiJohn KiamaRose WanjiruJackson MainaWinnie Waithira

6. Another affidavit of protest was filed by Elizabeth Njoki Miano who is a grandchild of the deceased, challenging the mode of distribution as proposed by Jackson Maina Miano on the basis that he was not qualified to file the summons for confirmation of grant as he was not the legally appointed personal representative of the deceased. That she has been cultivating part of property parcel number Mwerua/Kithumbu/31 since the time her parents were alive and that her sisters were in stable marriages for over 25 years. She stated that the deceased had 3 wives. She proposed the following mode of distribution:Mwerua/Kithumbu/31David Muthike Miano- 1. 08 haTimothy Irungu Miano- 1. 08haJackson Maina Miano- 0. 542 haElizabeth Njoki Miano- 0. 542 haMwerua/Chumbiri/251David Muthike Miano- 0. 67 haTimothy Irungu Miano- 0. 67 haJackson Maina Miano- 0. 290 haElizabeth Njoki Miano- 0. 290 haGichira Samson Miano- 0. 290 ha

7. The court took viva voce evidence. PW1, the appellant and a grandson of the deceased, stated that before his death, the deceased gave land parcel number Mwerua/Kithumbu/31 to PW1, the 2nd appellant and Timothy Irungu. That the 1st respondent is only claiming a part of the said land because he is their elder brother. That PW1 had been residing on the land for 23 years. On cross-examination he stated that the parcel of land had been subdivided into three portions and that the deceased had 19 children and 36 grandchildren. He denied that he forged documents relating to succession cause. He also denied that he said there had been an oral will.

8. In a statement filed by Margaret Muthoni Miano, daughter-in-law of the deceased and 2nd wife of the late Simon Miano- son of the deceased, she stated that prior to his death, the deceased called a meeting which was attended by two witnesses namely Peterson Kamunge and Paul Muthingani. That in the said meeting, the deceased gave his property to the appellants and Timothy Irungu Miano as a gift to his grandsons to hold in equal portions. That the deceased called a surveyor to subdivide the land and the three took possession of the portions. That after doing this, the deceased died 1½ months later.

9. Another statement was filed by Lilian Wanjeri Miano who is also daughter-in-law of the deceased and 3rd wife of the late Simon Miano- son of the deceased, wherein she stated that she has been wrongly included as a beneficiary of the land. That the deceased, prior to his death, gave his land as a gift to his three grandsons, the appellants and Timothy Irungu Miano, to hold in equal shares. That he ordered the surveyor to subdivide the property as such and the three have since been living on the land. That the other beneficiaries named by the administrators were never mentioned as beneficiaries by the deceased.

10. The trial court noted that none of the parties denied that Veronica Wanjiru Wamugunda was the daughter of the deceased. The learned magistrate proceeded to state that since the parties in the case were grandchildren of the deceased, the daughter of the deceased took greater priority in terms of inheritance, in light of Section 29(a) of the Law of Succession Act and the level of consanguinity held by Veronica Wanjiru Wamugunda vis-à-vis the other parties. The learned magistrate explained Section 38 of the law of succession Act and made reference to the cases of Re the Estate of John Musambayi Katumanga (deceased) (2015) eKLR and Re Estate of Solomon Ngatia Kariuki (deceased) (2008) eKLR. The trial magistrate ordered that the grant be confirmed and property be distributed according to the proposal fronted by Veronica Wanjiru Wamugunda in her affidavit of protest.

11. In this appeal, the parties filed their written submissions as directed by the court.

12. The appellants submitted that the trial court failed to consider the statements filed by Margaret Muthoni Miano and Lilian Wanjeri Miano, both filed on 08th May 2018. That if the court had considered the said statements, it would have noted that they stated that the deceased had called a family meeting and gave parcel number Mwerua/Kithumbu/31 to the appellants and one Timothy Irungu Miano as a gift. That parcel number Mwerua/Chumbiri/251 had a power line passing through it, with the consent of the deceased, which significantly affected the land and that the court failed to consider Section 42 of the Law of Succession Act with respect to such investments. They relied on the cases of Martha Wanjiku Waweru v Mary Waweru (2007) eKLR and Samuel Atika Bikeri v Pius Akara Bikeri (2019) eKLR in arguing that the wishes of the deceased should be respected and acknowledged by the court. They submitted that the land parcel number Mwerua/Kithumbu/31 ought to be distributed amongst the appellants and Timothy Irungu Miano and Mwerua/Chumbiri/251 be divided amongst all the other remaining beneficiaries.

13. The respondent relied on the case of Scolastica Ndululu Suva v Agnes Nthenya Suva (2019) eKLR and stated that the distribution adopted by the trial court was not equitable in light of Section 40 of the Law of Succession Act and the circumstances of the case. They relied on the case of Re Estate of Joshua Orwa Ojode (2014) eKLR in arguing that the respondents were indeed dependants of the estate of the deceased. It was their case that the trial court did not consider their respective claims in arriving at the judgment. On their argument that the deceased left an oral will, they relied on Section 8 of the Law of Succession Act which provides for oral wills and the case of Re Rufus Ngethe Munyu (deceased) Public Trustee v Wambui (1977) KLR 137. They urged the court to uphold the findings of the trial court.

14. having perused the grounds of appeal, the proceedings before the trial court and the submissions herein, the issues for determination are as follows:a.Whether there was a valid oral will; andb.Who are the beneficiaries of the estate of the deceased and whether the distribution of the estate was fair and just in the circumstances.

15. The role of an appellate court is to re-examine the evidence at trial and come up with its own conclusions while keeping in mind the findings of the trial court. In the case of Selle & Another v Associated Motor Boat Co. Ltd & Others [1968] EA 123, this principle was enunciated thus:“...this court is not bound necessarily to accept the findings of fact by the court below. An appeal to this court ... is by way of retrial and the principles upon which this court acts in such an appeal 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..."

16. On the first issue of whether the deceased left a valid oral will, I have perused the statements of Margaret Muthoni Miano and Lilian Wanjeri Miano who alleged that the deceased called a meeting with two witnesses present and he gave land to the appellants and Timothy Irungu Miano. I note that in both statements, it is not clear as to which parcel of land the deceased gave as a gift to his grandsons. PW1 who is the 1st appellant stated that the deceased gave them as a gift land parcel number Mwerua/Kithumbu/31 to be shared in three equal shared for the appellants and Timothy Irungu Miano.

17. Section 9 of the Law of Succession Act provides as follows:(1)No oral will shall be valid unless:(a)It is made before two or more competent witnesses and(b)The testator dies within a period of three months from the date of making the will.Provided that an oral will made by a member of the armed forces or merchant marine during a period of active service shall be valid if the testator dies during the same period of active service notwithstanding the fact that he died more than three months after the date of making the will.(2)No oral will shall be valid if, and so far as, it is contrary to any written will which the testator has made, whether before or after the date of the oral will, and which has not been revoked as provided for by sections 18 and 19"

18. The spirit of this provision is that the person claiming existence of a valid will should move the court with evidence proving this fact on a balance of probabilities. In the statement filed by Margaret Muthoni Miano, she named two witnesses who were allegedly present when the alleged oral will was made. The said witnesses did not testify, neither did they file their statements for consideration by the court. While it may be the case that the deceased gave this property as a gift, it remains unclear to this court whether indeed there was a valid oral will as there was not much by way of evidence to be subjected to the standard of proof.

19. The standard of proof in civil cases like this one can only be achieved when all the evidence is subjected to examination, cross-examination and re-examination. In the case of Kanyungu Njogu v Daniel Kimani Maingi (2000) eKLR the court held thus:“…when the court is faced with two probabilities, it can only decide the case on a balance of probability, if there is evidence to show that one probability was more probable than the other.”In my view, on a balance of probabilities and in light of the evidence adduced, there was no valid oral will.

20. On the second issue for determination of who the rightful beneficiaries of the estate of the deceased are, the appellants and the 1st and 2nd respondents are all grandchildren of the deceased. The 3rd respondent is a daughter of the deceased. The appellants have alleged that their late father, Simon Miano was a son of the deceased. It has been mentioned that the deceased had three wives but there are no further details as to this allegation, neither is it a contentious issue. The trial court applied Section 29(a) and 38 of the Law of Succession Act and gave priority to the 3rd respondent who is the daughter of the deceased. The court proceeded to order distribution of the estate of the deceased according to her proposal.

21. It is settled law that the grandchildren of the deceased cannot inherit directly from the estate of the deceased unless through their deceased parents. Grandchildren may however be included in distribution of the estate of the deceased as provided under clause 4 of the Second Schedule to the Probate and Administration Rules provides:“In determining the degree of consanguinity of a person from the deceased by tracing through an intermediate relative it is not necessary that such relative was living at the death of the deceased, e.g. a grandchild of the deceased living at the latter’s death would be included among the relatives notwithstanding that his parent (i.e. the deceased’s child) had died before the deceased.”

22. Further, in the case of In re Estate of Florence Mukami Kinyua (Deceased) [2018] eKLR it was held thus:“A grandchild is a direct heir to the estate of the grandparent where the parent predeceased the grandparent. The grandchildren get into the shoes of their deceased parents and take the parent’s share in the estate of the grandparents. This was stated in Re Estate of Wahome Njoki Wakagoto (2013) eKLR where it was held:-““Under Part V, grandchildren have not right to inherit their grandparents who die intestate after 1st July 1981. The argument is that such grandchildren should inherit from their own parents. This means that the grandchildren can only inherit their grandparents’ indirectly through their own parents, the children of the deceased. The children inherit first and thereafter grandchildren inherit from the children. The only time grandchildren inherit directly from their grandparents is when the grandchildren’s own parents are dead. The grandchildren step into the shoes of their parents and take directly the share that ought to have gone to the said parents.””

23. At this point, it is important to clarify that given the circumstances of this case, the appellants cannot exclusively claim a part of the estate in disregard of the other beneficiaries, but rather, only the portion that would have been held by their deceased parents as rightly stated by the trial court. I have noted that the mode of distribution of the estate as proposed by the 3rd respondent includes all the grandchildren of the deceased as well as herself as the surviving daughter (whom the trial court noted, she has since died).

24. In my view, the distribution is equitable and just. The trial court also rightly noted that the sisters of Elizabeth Njoki Miano whom she alleged were happily married, had a share of the inheritance. I share the same sentiments in the spirit of Article 27 of the Constitution of non-discrimination. Given my findings herein, the fact that there is an existing power-line on the property Mwerua/Kithumbu/31 does not in any way affect the distribution of the estate as the same has been found to be just.

25. In conclusion, I have considered the competing arguments and the relevant case law. I do find that the appeal lacks merit and is hereby dismissed. I shall make no order as to costs given the nature of relationship between the parties.

26. It is so ordered.

DELIVERED, DATED AND SIGNED AT KERUGOYA THIS 3RD DAY OF NOVEMBER, 2023. L. NJUGUNAJUDGE………………………………………………for the Appellants…………………………………………for the Respondents