https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7349

Mugai v Wanjiku (Family Appeal E002 of 2023) [2026] KEHC 7349 (KLR) (28 May 2026) (Judgment) Neutral citation: [2026] KEHC 7349 (KLR) Republic of Kenya In the High Court at Eldoret Family Appeal E002 of 2023 AK Ndung'u, J May 28, 2026 Between Virginia Wacuka Mugai Petitioner and Peninah Hellen Wanjiku Respondent (Being an Appeal from the Judgement and Decree delivered by Hon. V.M Masivo in in Nanyuki Chief Magistrates Succession Cause No. 37 of 2020 on 30th November 2023) Judgment 1.The brief facts underlying the Appeal are that a Grant of Letters of Administration issued to Virginia Wacuka Mugai Peninah and Peninah Hellen Wanjiku by Consent on 2nd December 2021 and thereafter, the Petitioner filed an Application dated 8th December 2021 seeking that the Grant be confirmed. 2.The Respondent then filed an Affidavit of Protest on 7th June 2023 claiming to be a daughter to the deceased and seeking to benefit from the estate. The court then directed that the matter then proceeded by way of viva voce evidence. 3.The trial court adopted the mediation agreement as a partial judgment and upon considering the testimonies of the parties, the final holding was1.That the following properties be registered in the name of Virginia Wacuka Mugai;a.LR Sosian/Sosian Block 1/5601 (Mifugo)b.LR Sosian/Sosian Block 2/5601 (Mifugo)c.National Bank of Kenya Ltd Share A/C No. 0102177d.Cooperative Bank of Kenya Member No. 5004129782.Parcel No, Muhito/Gaturia/522 to be transferred and registered in the name of Peninah Hellen Wanjiku. 4.Being dissatisfied with the decision, the Appellant instituted the present appeal vide a Memorandum of Appeal dated 20th December 2023 premised on the following grounds;1.The Learned Magistrate erred in law and in fact in making a finding that the respondent was a dependant of the deceased in spite of her conduct towards the deceased during his lifetime and after his death.2.The Learned Magistrate erred in law and in fact in awarding the respondent the entire LR. MUHITO/GATURIA/522 which was in exclusive possession and occupation by the appellant.3.The Learned Magistrate in effect chased away the appellant from where the deceased settled her upon their marriage as their matrimonial home and where the deceased after his death left her.4.The respondent never occupied this land and has nothing there and yet the Learned Magistrate awarded her the entire land.5.The Learned Magistrate erred in his observation that there was a time that the appellant had agreed to let the respondent get this land and later changed her mind. This was a misdirection on the part of the Learned Magistrate.6.Although the only asset available for distribution by the Learned Magistrate was LR. MUHITO/GATURIA/522, it was therefore unfair to the appellant to award the whole of it to the respondent contrary to her request. 5.The parties filed submissions on the Appeal. Appellants’ Submissions 6.Counsel urged that it is not in dispute that the respondent's mother was awarded by a court of law the custody of the respondent and her siblings in 1991. They never came back to the deceased. He died in 2004 without reconciling with them. That the deceased was not given any responsibility towards them and they grew up without depending on him. 7.He urged that the respondent did not attempt to assert her sense of belonging to the deceased even during his funeral. She said that her inaction was informed by the desire not to create a scene during the funeral. Bur for a person who claims that they kept in touch with the deceased during his lifetime, her absence during the mourning period and the funeral itself is telling. Apart from the certificate of birth which she obtained after attaining the age of majority, she has no other document that brings any nexus with the deceased. She did not produce her identity card for reasons known to her. 8.Counsel cited Section 28 of Law of Succession Act and urged that the deceased died when the respondent was 22 years old and during this time no evidence has been adduced to show that the two had any relationship. Further, that the learned Magistrate ought to have come to the conclusion that the Certificate of Birth whether valid or not is not enough to entitle her to inherit the deceased. He submitted that the learned Magistrate awarded the entire LR.MUHITO/GATURIA/522 to the respondent but in her affidavit of protest she did not ask for the entire land and therefore, the appellant ought to get a share of the same. 9.Counsel urged that the learned Magistrate did not give reasons why the appellant should not get this land which was the land on which the appellant and her deceased husband established their matrimonial home. They lived as husband and wife from 1991 to the time the deceased died in 2004. That she is exclusively living there to date. She urged that there is no justification at all to require the appellant to vacate the land she has lived for more than 30 years to move to the arid Laikipia County at her advance age to start a new life. That the appellant is now 67 years old, compared with the respondent who is only 43, posing the question as to who should move to start a new life? 10.Counsel urged that the entire estate should go to the appellant because that was the wish of the deceased. In particular he did not wish that LR. MUHITO/GATURIA/522 would be shared between the appellant and other persons leave alone the respondent. Counsel submitted that the appellant has established that she alone is the beneficiary of the estate of her husband and the same should be transmitted to her. He prayed that the appeal be allowed with costs. Respondents’ submissions 11.Counsel submitted that the six Grounds of appeal can be collapsed into one; that the learned magistrate erred in awarding the respondent the entire land title number MUHITO /GATURIA/522 as this is the only grievance of the Appellant. 12.Counsel submitted that the Learned Magistrate correctly applied himself to the law and the facts of the case before him in arriving at his decision. Counsel urged that from the facts and evidence presented before the court, the deceased Peter Mugai George died on 1st November 2004. As at the time of his death, he was married to the Applicant Virginia Wacuka Mugai with whom they had a daughter by the name Evelyn Wangui Mugai. Prior to marrying Virginia, the deceased was married to one Pauline Wambura Mugai and they had five (5) children. The marriage between the deceased and Pauline had been dissolved as evidenced by the judgement exhibited as Applicant's Exh No. 1 vide NYERI HIGH COURT DIVORCE CAUSE NO. 1 OF 1991. 13.Counsel laid down the brief history of the proceedings and urged that prior to hearing of the protest, the court, in line with Article 159 of the Constitution referred the matter to mediation. Out of the mediation, a partial agreement on the mode of distribution was reached and the partial mediation settlement agreement dated 5/10/2022 filed in court on the same day. Upon adoption of the Mediation agreement, the Trial magistrate had one thing to decide; whether the Respondent herein and her siblings were entitled to the only remaining asset of the estate i.e. Land Title Number Muhito/Gaturia/522. 14.The Respondent’s summary and punch of her presentation to court was that together with her siblings, they are children of the deceased. They are dependants of his estate within the meaning of the Law and should therefore be allowed to inherit from his estate. She made a passionate prayer to court that together with her siblings they had ceded claim to all other assets of the estate and were only interested in the Mutito property where they were born and raised until the separation of their parents. It is their ancestral home and they have nowhere else to go. 15.Contrary to the allegations of the applicant in her documents, she testified that despite the divorce of their parents they tried in the circumstances to keep in touch with him and they did so up to the time of his death but the applicant upon death excluded them from their father’s burial arrangements and that explains why they were not even made reference to in the eulogy or burial plans. Notably the Appellant recognized that the deceased had divorced the protestor’s mother by the time she got married to him. She has not refuted the fact that the protestors and her siblings are children of the deceased in her statement. 16.Counsel urged the court to take judicial notice that as matter of public notoriety, a divorce between parents interrupts the normal family set up. It may at times lead to reduced interventions between parents and their children due to various facts including finances and the running emotions of the process but be that as it may, children remain and retain their entitlement in law including the right to inherit from their children divorced or otherwise. In other words "one can divorce a spouse but one cannot divorce the children.” 17.Counsel urged that the Respondent and her siblings are dependants of the deceased within the meaning of the Law of Succession Act. He cited Section 29 of the Act and posited that by dint of this Section, the respondent and siblings are entitled to inherit from the estate of the deceased as of right. The appellant cannot simply decide to exclude them. 18.Counsel urged that the Appellant has not pointed this Honourable Court to any misapprehension of the law or fact by the Trial magistrate. It is unacceptable that the Appellant should be allowed to inherit all assets of the estate to the exclusion of the Respondent and her siblings whereas it is undisputed that they are heirs of the deceased and rightful beneficiaries. Counsel urged the court to hold that the Respondent and her siblings are entitled to LAND TITLE NUMBER MUHITO /GATUR1A/522 as held by the Honourable Magistrate. Counsel urged that the same should be share equally between the two houses and further, that the court find that the provision for the Respondent and her siblings as dependants of the deceased made by the learned magistrate is just in the circumstances. Analysis & Determination 19.This is a first appeal. The principle upon which a first appellate court exercises jurisdiction is well settled. The task of a first appellate court was summarized in Abok James Odera t/a A. J Odera & Associates v John Patrick Machira t/a Machira & Co Advocates [2013] eKLR as follows:“This being a first appeal, we are reminded of our primary role as a first appellate court, namely, to re-evaluate, re-assess and re-analyse the extracts on the record and then determine whether the conclusions reached by the learned trial judge are to stand or not and give reasons either way.” 20.Additionally, the Court the of Appeal, in the case of Susan Munyi v Keshar Shiani (2013) eKLR stated as follows:“As a first appellate court our duty of course is to approach the whole of the evidence on record from a fresh perspective and with an open mind. We are to analyse, evaluate, assess, weigh, interrogate and scrutinize all of the evidence and arrive at our own independent conclusions 21.I shall now recall the evidence in the trial court. 22.PW1 was Peninah Wanjiku who testified that she was a daughter to the deceased and his first wife Pauline Nyambura. She testified that the Court Annexed Mediation resolved and agreed on properties except parcel No. LR Muhito Gathura 522 which was their farm. That the petitioner may have everything save for that parcel for her and her siblings. 23.During cross examination, she stated that upon divorce, they remained with their mother and abandoned the other properties in the interest of mediation. That she and her siblings would regularly meet their dad. 24.DW1 was Virginia Wacuka who testified that the deceased was her husband and she confirmed the mediation agreement. She asked for adoption of the partial mediation agreement and testified that the subject parcel belongs to her. Upon their marriage, she took possession of the subject parcel and has been in quiet possession of this parcel. That the protestors were not taking care of the deceased and did not attend his burial. In her adopted witness statement, she stated that around 1991 she got married to the deceased under Kikuyu customary law which was solemnized at PCEA Muhito Church. When she got married to the deceased, he was single having divorced. She did not find the protestor or her siblings in the matrimonial home as the wife had been awarded their custody. 25.In cross-examination she stated that the deceased divorced his former wife and she does not know if the deceased had children with his former wife. Analysis & Determination 26.The Appellant contends that the Respondent was never a dependant of the deceased. For clarity, Section 29 of the Law of Succession Act provides as follows;For the purposes of this Part, "dependant" means-a.the wife or wives, or former wife or wives, and the children of the deceased whether or not maintained by the deceased immediately prior to his death; 27.It follows that in order for the protestor to have been considered a dependant of the estate, she would have to establish that she was a child of the deceased. She produced a Birth certificate as proof of this allegation and a baptismal card as well, which indicated that the deceased was her father. These documents were never challenged and no evidence was led to the contrary. Further, the Appellant admitted in court that the deceased was married to the Respondents’ mother then divorced her and left the protestor in her custody. 28.The issue that arises is whether the children of the deceased from his previous marriage are disentitled from inheriting his estate merely because the deceased had divorced their mother prior to marrying DW1. The answer is in the negative. 29.Section 29 of the Law of Succession Act recognizes the children of a deceased person as dependants and beneficiaries of the estate irrespective of the status of the relationship between their parents. Divorce between spouses does not extinguish the parent-child relationship nor deprive children of their right to inherit from their deceased parent. 30.In Re Estate of Julius Mimano (Deceased) [2019] eKLR, the court held that all children of a deceased person are entitled to benefit from the estate without discrimination, whether born within or outside marriage, and irrespective of the relationship between their parents. Similarly, in Rono v Rono & Another [2005] 1 KLR 538, the Court of Appeal emphasized that the Law of Succession Act does not countenance discrimination among children in matters of inheritance and that all beneficiaries are entitled to fair consideration by the court. 31.The court therefore finds that if the protestor and her siblings are proved to be children of the deceased, they are entitled to inherit from the estate notwithstanding that their mother had divorced the deceased before his subsequent marriage to DW1. 32.The testimony by DW1 that she did not find the protestor and her siblings in the matrimonial home and that their mother had custody of them does not negate their entitlement as children of the deceased. Equally, allegations that they did not take care of the deceased or attend his burial do not constitute lawful grounds for disinheritance under the Law of Succession Act. 33.The resultant distribution therefore achieves an equitable outcome by safeguarding the proprietary and occupational interests of DW1 as the surviving widow while ensuring that the children of the deceased are not unlawfully excluded from inheritance. 34.I am alive to the provisions of Section 28 of the Law of Succession Act which provides as follows;In considering whether any order should be made under this Part, and if so what order, the court 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 dependant;c.the existing and future means and needs of the dependant;d.whether the deceased had made any advancement or other gift to the dependant during his lifetime;e.the conduct of the dependant in relation to the deceased;f.the situation and circumstances of the deceased's other dependants and the beneficiaries under any will;g.the general circumstances of the case, including, so far as can be ascertained, the testator's reasons for not making provision for the dependant 35.The Appellant contends that the conduct of the protestor was not taken into account by the trial court. Further, that the conduct was wanting and the consequence of the same was that she should not have inherited from the estate. It is trite law that he who alleges must prove. No evidence was led or corroborated to lend credence to the allegation that the protestors’ conduct was wanting. 36.I am of the view that the trial magistrate correctly found that the protestor was a dependant of the estate under section 29 of the act. Additionally, the trial court correctly considered the conduct as per the provisions of section 28. I have also taken into consideration the mediation agreement that was adopted as an order of the court. The Appellant received the lions’ share of the estate and therefore, it would be unfair to dispossess the protestor of her portion of the estate of the deceased, having proved that she was a daughter to the deceased. 37.The bona fides of the Appellant’s claim over the only property that remained undistributed at the mediation stage is highly questionable. This is particularly so considering that all the other properties in the estate had already devolved to her, without any concession whatsoever to the children of the deceased’s earlier marriage. Her insistence on exclusively retaining LR. Muhito/Gaturia/522, despite having benefited substantially from the estate, smacks of bad faith, greed, and a sense of selfish entitlement. 38.The children from the deceased’s earlier marriage are equally beneficiaries of the estate and are entitled to inherit from their late father. In the absence of any other property devolving to them from the estate, the trial magistrate cannot be faulted for awarding LR. Muhito/Gaturia/522 to the Respondent so as to achieve a fair and equitable distribution among all the beneficiaries. 39.The upshot of the foregoing is that the Appeal is dismissed. This being a family matter, each party shall bear its own costs. DATED SIGNED AND DELIVERED VIRTUALLY THIS 28TH DAY OF MAY 2026A.K. NDUNG’UJUDGE