[2023] KEHC 25716 (KLR)

Muriuki v Maina & another (Succession Appeal E027 of 2021) [2023] KEHC 25716 (KLR) (16 November 2023) (Judgment)

Neutral citation: [2023] KEHC 25716 (KLR)

Republic of Kenya

In the High Court at Nyeri

Succession Appeal E027 of 2021

FN Muchemi, J

November 16, 2023

IN THE MATTER OF THE ESTATE OF KARIUKI NJOGU alias KARIUKI s/o NJOGU (DECEASED

Between

Margaret Waruguru Muriuki

Appellant

and

Catherine Wangui Maina

1st Respondent

Wanjiku Mwangi

2nd Respondent

(Being an appeal from the Ruling of Resident Magistrate, Hon. V. S. Kosgei Principal Magistrate court Karatina Succession Cause No. 203 of 2017 delivered on 26th October 2021)

Judgment

Brief facts 1. The appeal is in respect to the ruling in Karatina Principal Magistrate court Succession Cause No. 203 of 2017 in which the court found that the appellant’s proposed mode of distribution of the estate was discriminatory against the 2nd house and distributed the estate in equal shares between the two houses of the deceased.

2. Being aggrieved with the decision of the Trial Court, the appellant has lodged the instant appeal citing 5 grounds of appeal be summarised as follows:-a.The Learned Magistrate erred in law and in fact in misapplying the provisions of Section 40 of the Law of Succession Act by treating the children of the 1st house equally to her and ignoring her children;b.The Learned Magistrate erred in law and in fact in ignoring the wishes of the deceased;c.The Learned Magistrate erred in law and in fact in distributing the estate to Julius Murimi and Esther Njoki Muriuki, the petitioner’s children who had not participated in the cause.

3. By consent parties agreed to dispose of the appeal by written submissions.

The Appellant’s Submissions 4. The appellant contends that it is the respondents’ case that she is their step mother in law, a co-wife to their deceased mother in law. The appellant confirms that when she got married to the deceased herein she knew that he had another wife who had passed away. Thus the respondents were marred to the sons of the deceased by the 1st wife. The appellant further submits that she testified that she had her own two children. Accordingly, the appellant submits that the estate of the deceased ought to have been distributed in pursuance of Section 40 of the Law of Succession Act whereby it would be shared equally amongst the children of the deceased and the surviving spouse being treated as a separate unit. Particularly, the appellant submits that the estate ought to have been shared out into five equal units that is the two respondents, the appellant and the appellant’s two sons. The appellant argues that instead the trial court shared the estate equally amongst the two respondents and herself ignoring her two sons.

5. The appellant further submits that the trial court misapprehended the law as he distributed the estate where she got a total of 0. 6433 ha and each of the two respondents got 0. 6433ha.

6. The appellant submits that all the parties agreed in evidence in the trial court that the deceased had settled his family on his two parcels of land. They agreed that she was settled exclusively on land parcel number Iriaini/Gatundu/507 which measures 0. 42 ha. She further submits that the deceased hived off half a portion of land parcel number Iriaini/Gatundu/739 and given it to her and the rest of the portion of the said land was left to the respondents. Notwithstanding these wishes of the deceased, the appellant argues that the trial court redistributed the estate of the deceased.

7. The appellant further argues that the trial court brought in other children of the deceased namely Julius Murimi and Esther Njoki Muriuki who never expressed any interest in the sharing out of the estate. The appellant argues that by the trial court doing so overstepped in its mandate by distributing the estate to persons not interested in the estate. Further, the appellant argues that the purposes of bringing the two persons in the distribution has not been explained by the court.

8. The appellant thus submits that the appeal has merit and urges the court to distribute the estate with the appellant getting L.R. NO. Iriaini/Gatundu/507 absolutely and half portion of land parcel number Iriaini/Gatundu/739 and for the respondents to get the remaining half of L.R. No. Iriaini/Gatundu/739.

The Respondents’ Submissions 9. The respondents submit that the deceased married his first wife Esther Wandia who died around 1985 and that is when the deceased married the appellant. Thus the respondents argue that the deceased was not polygamous but was monogamous as he had only one wife at a time. It was after the death of his wife that the deceased got married to the appellant. As such the deceased’s house was monogamous

10. The respondents submit that the trial court took into consideration the fact that the deceased had settled the two families and it was clear that the appellant was settled in land parcel number Iriaini/Gatundu/507 but was doing some coffee farming in a small portion in L.R. NO. Iriaini/Gatundu/739 where the lower court gave her 0. 233ha. The respondents argue that the distribution by the trial court is fair, just and in accordance with the wishes of the deceased even though they would desire that the be bequeathed appellant get only L.R. No.iriaini/Gatundu/507 solely whereas the and they get L.R. number Iriaini/Gatundu/739 absolutely.

11. The respondents further argue that the appellant is seeking to overturn the lower court’s judgment to have the life interests removed so that she sells her portion.

Issue for determination 12. The main issue for determination is whether the appeal has merit.

The Law 13. Being a first Appeal, the court relies on a number of principles as set out in Selle and Another vs Associated Motor Boat Company Ltd & Others [1968] 1EA 123:“…..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. In particular,, this 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 into account of particular circumstances or probabilities materially to estimate the evidence.”

14. It was also held in Mwangi vs Wambugu [1984] KLR 453 that an appellate court will not normally interfere with a finding of fact by the trial court unless such finding is based on no evidence or on a misapprehension of the evidence; or where the court has clearly failed on some material point to take into account of particular circumstances or probabilities material to an estimate of the evidence.

15. Dealing with the same point, the Court of Appeal in Kiruga vs Kiruga & Another [1988] KLR 348, observed that:-“An appeal court cannot properly substitute its own actual finding for that of a trial court unless there is no evidence to support the finding or unless the judge can be said to be plainly wrong. An appellate court has jurisdiction to review the evidence in order to determine whether the conclusion reached upon that evidence should stand.”

16. Therefore this Court is under a duty to delve at some length into factual details and revisit the facts as presented in the trial court, analyse the same, evaluate it and arrive at its own independent conclusions, but always remembering and giving allowance for it, that the trial court had the advantage of hearing the parties.

Whether the appeal has merit 17. From the evidence of the parties, the deceased was married to a first wife, Esther Wandia and together they had six (6) children. The 1st wife died in 1985 and the deceased married the appellant as his second wife and they have three children together although one is deceased. The deceased herein died on 13th July 2005 and was survived by the following:-1st Housea.Catherine Wangui Maina – daughter in lawb.Mary Waraguyu Kahuko- daughterc.Jedidah Wanjiru Kambaru – daughterd.Wanjiku Mwangi – daughter in lawe.Elizabeth Muthoni Muriuki- daughter2nd Housea.Margaret Waurguru Muriuki – wifeb.Julius Murimi – sonc.Esther Njoki Muruki – daughter

18. The appellant argues that the estate ought to be distributed according to the deceased’s wishes with L.R. No. Iriaini/Gatundu/507 being allocated to her absolutely and L.R. No. Iriaini/Gatundu/739 be shared between her getting 0. 75ha and the respondents each getting 0. 37ha. The respondents opposed that mode of distribution and proposed that the two parcels of land be shared to the three of them in equal measures.

19. I have perused the court record and noted that from the evidence of all the parties, the appellant resides on L.R. NO. Iriaini/Gatundu/507 where the deceased moved her to avoid squabbles with his sons. Further, it is not in dispute that the appellant carries on farming of 400 coffee bushes on L.R. NO. Iriaini/Gatundu/739 up to date. According to the 2nd respondent’s testimony, the appellant’s late husband gave her a coffee farm on L.R. No. Iriaini/Gatundu/739 to tend as she had young children and needed to pay their school fees. Upon her children completing, the appellant was to give back the land to the 2nd protestor’s husband. The appellant on the other hand testified that the deceased moved her to L.R. No. Iriaini/Gatundu/507 and gave her 400 coffee tress to farm on L.R. No. Iriaini/Gatundu/739. She further testified that she still farms on that said of land up to date. As such, it is not disputed that the appellant carries on farming on the said parcel of land even after the death of the deceased..

20. It is evident from the testimonies of the parties that the deceased married two wives at different times in his lifetime. The applicable law in the distribution of his estate is Section 40 of the Law of Succession Act which provides;-Where an intestate has married more than once under any system of law permitting polygamy, his personal and household effects and the residue of the net intestate estate shall in the first instance, be divided among the houses according to the number of children in each house, but also adding any wife surviving him as an additional unit to the number of children.

21. It is noted that three of the deceased’s children by his first wife named in the petition did not show any interest in the estate. It is also noted that they were of advanced age ranging between 56 – 70 years in 2017 when this cause was filed. No evidence was given as to their whereabouts by their two sisters who are the respondents herein seems to have no interest. The magistrate summoned them to court to express their interests or to denounce their rights of inheritance. It will be difficult to make those inquiries at this stage of appeal and I will therefore proceed to address the issue of distribution as raised herein.

22. Having found that Section 40 of the Act is applicable in distribution of the estate, the magistrate ought to have distributed the estate equally among the six (6) beneficiaries of the estate, that is, the respondents and the appellant and her two children who are of the age of majority. The court failed to distribute the estate equitably and gave the respondents a bigger share as opposed to the appellant and her children who were more in number. For this reason, I am of the considered view that the court has a basis of interfering with the distribution of the estate.

23. I therefore set aside the orders of the magistrate and distribute the estate as follows:-a)Iriaini/Gatundu/507 - 0. 42 hai)Julius Murimi - 0. 21 haii)Esther Njoki - 0. 21 hab)Iriaini/Gatundu/739 - 1. 51 hai)Life interest to Magaret Waruguru Muriuki – 053 ha and on her demise – Julius Murimi and Esther Njoki to share equallyii)Catherine Wangu Maina - 0. 53 haiii)Wanjiku Mwangi - 0. 53 ha

24. Certificate of confirmation to issue.

25. The appeal is partly successful.

26. It is so ordered.

F. MUCHEMIJUDGEDATED AND SIGNED AT NYERI THIS 16THDAY OF NOVEMBER2023