[2025] KEHC 3044 (KLR)

Mutahi & another v Mutahi & 3 others (Succession Appeal E002 of 2024) [2025] KEHC 3044 (KLR) (17 March 2025) (Judgment)

Neutral citation: [2025] KEHC 3044 (KLR)

Republic of Kenya

In the High Court at Nyeri

Succession Appeal E002 of 2024

MA Odero, J

March 17, 2025

Between

Mary Wanjiku Mutahi

1st Appellant

Racheal Wothaya Mutahi

2nd Appellant

and

Martin Wachira Mutahi

1st Respondent

Samuel Ali Mutahi

2nd Respondent

Daniel Kimondo

3rd Respondent

Elizabeth Ngima Wanjiru

4th Respondent

Judgment

1. Before this Court is the Memorandum of Appeal dated 26th January 2024 by which the Appellants Mary Wanjiku Mutahi And Rachel WOthaya Mutahi seek the following orders“(a)That this Appeal be allowed.(b)That the orders issued on 20th December 2023 be set aside.(c)That costs of the appeal be provided.(d)Any other relief this Appellate Court may deem fit to grant.”

2. The Respondents Martin Wachira Mutahi, Samuel Ali Mutahi, Daniel Kimondo And Elizabeth Ngima Wanjiru all opposed he appeal.

3. The matter was canvassed by way of written submissions. The appellants filed the written submissions dated 11th October 2024, whilst the Respondents relied upon their written submissions dated 18th November 2024.

Background 4. The Original cause being Othaya Succession Cause No. E14 of 2020 related to the estate of the late Mutahi Mutitu Alias Mutahi S/o Mutitu who died intestate on 27th November 2017. A copy of the Death Certificate Serial No. 061xxxx was filed in the Lower Court on 2nd December 2020.

5. The Deceased was said to have been survived by two widows Mary Wanjiku Mutahi And Rachel WOthaya Mutahi as well as the following children:-(1)James Mutitu Mutahi - Son(2)Stephen ……………..Mutahi - Son(3)Simon Mukundi Mutahi - Son(4)Jackson Wahome Mutahi - Son(5)Rachel WOthaya Mutahi - Daughter(6)James Mwangi Mutahi - Son(7)Abraham Murungi Mutahi - Son(8)Elizabeth Nguma Mutahi - Daughter

6. The estate left behind by the Deceased comprised the following assetsAssetsa.Land Title Number Othaya/Kiandemi/634 Approximately 5. 45 Acresb.Land Title Number Othaya/Kiandemi/848 Approximately 0. 56 Hac.Land Title Number Othaya/Kiandemi/842 Approximately 0. 56 Had.Land Title Number Othaya/Kiandemi/826 Approximately 0. 83 Hae.Land Title Number Othaya/Kihugiru/860 Approximately 0. 05 Haf.Land Title Number Othaya/Kihugiru/2852 Approximately 0. 05 Hag.Land Title Number Othaya/Kihugiru/2850 Approximately 0. 10 Hah.Land Title Number Othaya/Kihugiru/770 Approximately 0. 09 Hai.Plot Number 3b Kihuri.j.Motor Vehicle Registration No. KBT 410Ck.Money With Equity Bank A/C NO. 00801015XXXXXl.Money With Family Bank A/C NO. 011000XXXXX2. m.Shares With Iriani Tea Factory Total estimated value Kshs. 5,000,000/=Liabilities(a)Nil.

7. Following the demise of the Deceased Grant the two widows Mary Wanjiku Mutahi and Rachel WOthaya Mutahi jointly filed a Petition for Grant of letters of Administration Intestate dated 1st December, 2020.

8. The Objectors (the Respondents in this Appeal) filed an Objection to the making of grant dated 17th October 2022. The Objectors alleged that the Petition for grant was filed secretly without involving them yet they are biological children of the Deceased and therefore beneficiaries to this estate.

9. The Objection was heard by way of Vive Voce evidence. Vide a Ruling delivered on 20th December 2023 Hon. M. N. Munyendo Principal Magistrate upheld the Objection and made the following orders:-“(a)I declare that the Objectors herein Martin Wachira Mutahi, Samuel Ali Mutahi, Daniel Kimondo and Elizabeth Wanjiru being children of Mutitu alias Mutahi s/o Mutitu (Deceased) are entitled to participate in these Succession proceedings.(b)That a grant is hereby issued to Mary Wanjiku Mutahi, Rachel WOthaya Mutahi and Martin Wachira Mutahi as joint administrators.(c)Upon expiry of the statutory timelines the joint administrators to move the court appropriately to apply for confirmation of the grant.(d)There are no orders as to costs.”

10. Being aggrieved by the decision made by the trial court the Petitioners (Appellants herein) filed this appeal. The appeal was premised upon the following grounds:-“(1)The learned magistrate erred in law and in fact in declaring the Respondents herein Martin Wachira Mutahi, Samuel Ali Mutahi, Daniel Kimondo And Elizabeth Ngima Wanjiru As Children Of Mutahi Mutitu Alias Mutahi S/o Mutitu (deceased)(2)The learned magistrate erred in law and in fact in not making a finding that Mutahi Mutitu Alias Mutahi S/o Mutitu (deceased) was not the father of Elizabeth Ngima Mutahi because her father as per her birth certificate already produced in the trial court is John Mutahi Mwangi.(3)The learned magistrate erred in law and in fact in not making a finding that Mutahi Mutitu Alias Mutahi S/o Mutitu (deceased) was not the father of Samuel Ali Mutahi ‘s as his father’s name is not mentioned in his birth certificate already produced in the trial court. Further the details in his identification report show his father’s name is Joseph Mutahi which name is not the name of the Deceased herein.(4)The learned magistrate erred in law and in fact in not making a finding that Mutahi Mutitu Alias Mutahi S/o Mutitu (deceased) Is Not The Father Of Daniel Kimondo because his identification report does not mention the name of his father and states his family name is Mbogo. The family name of the Deceased herein is not Mbogo But Mutahi.(5)The learned magistrate erred in law and in fact in not making a finding that the details in the Birth Certificate of Martin Wachira Mutahi cannot be relied upon as he was the informant and thus gave details as regards to the names of his mother and father in a manner that will suit him, which details were given to the Registrar of Births in the year 2021 after the demise of the deceased herein as evidenced in verification document of his birth certificate Mutahi Alias Mutahi S/o Mutitu (deceased) died on 27th November 2017. (6)The learned magistrate erred in law and in fact in declaring the Respondents herein Martin Wachira Mutahi, Samuel Ali Mutahi, Daniel Kimondo And Elizabeth Ngima Wanjiru are entitled to participate in the Succession Cause of Mutahi Mutitu Alias Mutahi S/o Mutitu (deceased) because as evidenced above the Respondents are not the children of the deceased herein and thus not entitled to participate in his Succession Cause.(7)The learned magistrate erred in law and in fact in declaring the Respondents herein Martin Wachira Mutahi, Samuel Ali Mutahi, Daniel Kimondo And Elizabeth Ngima Wanjiru As Children Of Mutahi Mutitu Alias Mutahi S/o Mutitu (deceased) based on hearsay evidence of area chief Paul Wamae Kamano who admitted to have received the information that the Respondents are the children of the Deceased after investigation from a third party Charles Kamau who never testified in the trial court.(8)The learned magistrate erred in law and in fact by failing to take into consideration that the 1st Respondent Martin Wachira Mutahi is the 3rd son of their late mother Virginia Wanjiru (Deceased) thus he was not named after the father of his father. Only the 1st son is named after the father of the child’s father under Kikuyu Customary Law. Daniel Kimondo is the 1st son of Virginia Wanjiru (Deceased).(9)The learned magistrate erred in law and in fact by failing to take into consideration that if indeed the Respondents herein are the children of Mutahi Mutitu Alias Mutahi S/o Mutitu (deceased), they should have protested his funeral arrangements until they are recognized as children of the deceased. They were all Adults at the time the deceased passed away on 27th November, 2017. (10)The learned magistrate erred in law and in fact in not making a finding that the Respondents’ late mother Virginia Wanjru (Deceased) was not married to Mutahi Mutitu Alias Mutahi S/o Mutitu (deceased) on the ground that her name as per her death certificate was Virginia Wanjiru Kimondo, Kimondo being her surname. Her name in her National Identity Card is Virginia Wanjiru Ali. Her father’s name as per her identification report is Samuel Ali. This clearly shows that the name Kimondo in her death certificate refers to her husband. The name of the Deceased herein is not Kimondo.(11)The learned magistrate erred in law and in fact in not making a finding that the Respondents’ late mother Virginia Wanjiru was not married to the Deceased herein on the ground that their late mother was buried at her parent’s home and not at the home of Mutahi Mutitu Alias Mutahi S/o Mutitu (deceased). If at all she was married to the Deceased herein, she should have been buried at his home as per Kikuyu Customary Law.(12)The learned magistrate erred in law and fact by failing to appreciate that if indeed Mutahi Mutitu Alias Mutahi S/o Mutitu (deceased) and Virginia Wanjiru (Deceased) lived together as husband and wife at Kiandemi, the 1st and 2nd Appellants should have known because they reside in the very same village named Kiandemi.(13)The learned magistrate erred in law and in fact in not issuing a grant of letters of representation in the estate of Mutahi Mutitu Alias Mutahi S/o Mutitu (deceased) to Mary Wanjiku Mutahi and Rachel WOthaya only who are the 1st and 2nd Appellants.(14)The learned magistrate erred in law and fact in issuing a grant of letters of representation to Mary Wanjiku Mutahi, Rachel WOthaya Mutahi and Martin Wachira Mutahi as joint administrators of the estate Mutahi Mutitu Alias Mutahi S/o Mutitu (deceased)(15)The learned magistrate erred in law and fact in including the Respondent Martin Wachira Mutahi as a joint administrator in the estate of Mutahi Mutitu Alias Mutahi S/o Mutitu (deceased) because he is not a child of the deceased and thus a stranger and not a party in the Succession Cause.(16)The learned magistrate erred in law and fact in ordering that upon the expiry of the statutory timelines the joint administrators to move the court appropriately to apply for confirmation of the grant as the 1st Respondent Martin Wachria Mutahi was erroneously declared as a joint administrator yet he is a stranger and not a party to Succession Cause of the Estate of Mutahi Mutitu Alias Mutahi S/o Mutitu (deceased)(17)The Learned magistrate erred in law and fact in not making a finding that the joint administrators of the estate of Mutahi Mutitu Alias Mutahi S/o Mutitu (deceased) are Mary Wanjiku Mutahi and Rachel WOthaya Mutahi and thus are the only ones who should have been ordered that upon the expiry of the statutory timelines to move the court appropriately to apply for confirmation of the grant.(18)The learned magistrate erred in law and fact in declining to take into account the 1st and 2nd appellants submissions.(19)The learned magistrate misdirected himself and reached a patently unjust conclusion of making a declaration that the Respondents herein Martin Wachira Mutahi, Samuel Ali Mutahi, Daniel Kimondo And Elizabeth Ngima Wanjiru Are The Children Of Mutahi Mutitu Alias Mutahi S/o Mutitu (deceased) and are entitled to participate in his Succession Proceedings contrary to Succession Act Cap 160 Laws of Kenya.(20)The learned magistrate misdirected himself and reached patently unjust conclusion of issuing a grant of letters of representation to a stranger who is the 1st Respondent jointly with the 1st and 2nd Appellants contrary to Succession Act Cap 160 Laws of Kenya.(21)The learned magistrate should have issued the grant of letters of administration to the 1st and the 2nd Appellants only.”

The Evidence 11. The Objectors/Respondents called six (6) witnesses in support of their case. They testified that their mother one Virginia Wanjiru Ali got married to the Deceased as his second wife in the year 1979. That the marriage was conducted under Kikuyu customary law.

12. The Objectors went on to claim that they lived as a family with their father, mother and the 1st wife Mary Wanjiku Mutahi (the 1st Appellant) on land parcel Number Othaya/Kiandemi/634. That later the Objectors family moved to Nanyuki Town in search of better business opportunities. That the Deceased set up a second hand clothes business for their mother.

13. The Objectors went on to state that sometime in or about the year 1998 the Deceased and their mother had a falling out and as a result the Deceased relocated back to Othaya leaving the objectors and their mother in Nanyuki.

14. They state that despite this separation the Deceased continued to provide for the objectors as his children by buying food, paying school fees, catering for their medical bills as well as other necessities.

15. The Objectors state that their mother Virginia Wanjiru Ali passed away on 6th March 2010. A copy of her Death Certificate Serial Number 106xxxx appears at Page 101 of the Record of Appeal dated 12th August 2024.

16. It is the Objectors state that following the demise of their mother the Deceased as her husband took care of all her burial expenses. That however their late mother was buried in her paternal home as per her wishes.

17. The Objectors claim that in the year 2012 the Deceased purchased a plot in Nanyuki Town which plot he had registered in the name of Daniel Kimondo (the 3rd Respondent). That the Deceased built a permanent residential house on this plot for the objectors to occupy as their home.

18. The objectors complain that they were not notified neither were they included in the succession cause filed by the Appellants. They assert that as the biological children of the Deceased they have a legal right to inherit from his estate. The Objectors therefore prayed to be recognised as the children of the Deceased and to be included as administrators of this estate.

19. The Petitioners vehemently opposed the claims made by the objectors. They categorically denied that the Deceased had married the Objectors mother under customary law or otherwise. The petitioners denied that the objectors were the children of the Deceased. They stated that the Deceased had never introduced any of the objectors or their mother to his family members.

20. The two widows of the Deceased Mary Wanjiku Mutahi and Rachel WOthaya Mutahi swore an Affidavit dated 27th January 2023 opposing to the claims made by the Objectors. They stated that the objection filed was merely an afterthought. That none of the objectors has ever lived with the family and none occupies any property owned by the Deceased.

21. The petitioners asserted that the deceased was survived only by two (2) widows and the eight (8) children as named in their petition dated 1st December 2020. That the initial chief’s letter dated 24th November 2020 named the genuine beneficiaries to the estate of the Deceased.

22. The Petitioners challenged the birth certificates of the objectors as the same did not bear the name of the Deceased as their father. That the birth certificate relied on by the 1st Objector which named the Deceased as his father had been obtained in the year 2021 – four (4) years after the deceased had died.

23. The Petitioners pointed to the fact that the objectors mother Virginia Wanjiru Ali was buried not in the home of the Deceased but in her parents home as proof that no marriage existed between the two.

24. The Petitioners urged the trial court to dismiss the objection in its entirety with costs.

25. As stated earlier the learned trial magistrate in a Ruling delivered on 20th December 2023 allowed the objection. The trial court found and declared that all the four (4) objectors were the children of the Deceased and directed that the 1st Objector Martin Wachira Mutahi be included as an administrator of the estate.

Analysis And Determination 26. I have carefully considered this memorandum of appeal, the record of proceedings before the lower court as well as the written submissions filed by both parties.

27. This is a first appeal. It is settled law that the duty of the first appellate court is to re-evaluate the evidence which was adduced in the subordinate court both on points of law and fact and come up with its own findings and conclusions [see Peters -vs- Sunday Post Limited [1958] E.A 424]

28. In Selle And Another -vs- Associated Motor Boat Company Litd & Ohers [1968] 1. E.A 123 it was stated as follows:-“…………………this court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind [the fact] 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 that he has clearly failed on some point to take into account of particular circumstances or probabilities materially to estimate the evidence.”

29. Likewise in Gitobu Imanyara & 2 Others -vs- Attorney General [2016] eKLR, the court of Appeal stated thus;-“An appeal to this court is by way of a 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.”

30. Therefore the appropriate standard of review in cases of appeal can be summarized in the following three principles:-(1)On first appeal the court is under a duty to reconsider and re-evaluate the evidence on record and draw its own conclusions.(2)In reconsidering and re-evaluating the evidence the first appeal court must bear in mind and give due allowance for the fact that the trial court had the advantage of seeing and hearing the witnesses.(3)It is not open to the first appellate court to review the findings of a trial court simply on the basis that it would have reached a different conclusion had it been hearing the matter for the first time.

31. It is common ground that the Deceased in this matter Mutahi Mutitu passed away on 27th November 2017. The dispute between the parties revolves the genuine heirs to the estate. In this appeal two main questions arise for determination.(i)Was the Deceased married to the Objectors mother Virginia Wanjiru Ali.(ii)Are the Objectors the biological children of the Deceased and therefore beneficiaries to the estate.

32. On the first question the Objectors claimed that the Deceased got married to their late mother sometime in the year 1979 under Kikuyu customary law. A kikuyu customary marriage (just like the marital customs of other African communities) consists of certain rites which must be performed. Further a customary marriage is not a clandestine or secret affair. It involves the coming together of two families and clans and is often conducted publicly and with much fanfare.

33. Eugene Contran’s casebook on Customary Law at page 30 sets out the essentials of Kikuyu Customary Marriage. These are stipulated as:“1. Capacity; the parties must have capacity to marry and also the capacity to marry each other.

2. Consent; the parties to the marriage and their respective families must consent to the union.

3. Ngurario; no marriage is valid under Kikuyu customary law unless the Ngurario ram is slaughtered.

4. Ruracio; there can be no valid marriage under Kikuyu law unless a part of the ruracio (dowry) has been paid.

34. In the case of EVa Naima & Another -vs- Tabitha Waithera Mararo [2018] eKLR the Court of Appeal in observing that ‘ngurario’ ceremony did not take place stated as follows:-“From the above it becomes apparent that, no ram or goat was slaughtered to mark the coming into existence of a marriage. Without the presence of the central feature of the ngurario ceremony, it cannot be said that a valid Kikuyu customary marriage came into existence between Waithera and the Deceased.” (Own emphasis)

35. The Objectors did not tender any evidence to show that the Deceased entered into a customary union with their late mother. There is no evidence that a ‘Ngurario ceremony’ was ever conducted. Pw6 Agnes Wamaitha Mwangi only stated that ‘Virginia’ told her that ‘Mutahi’ was her husband. Pw6 did not witness any of the cultural rites associated with a Kikuyu customary marriage. She had no evidence to prove that such a customary marriage ever took place between the Deceased and ‘Virginia’. Therefore I find that no evidence was adduced to point to the existence of a customary marriage between the Deceased and ‘Virginia Wanjiru.’

36. The two widows and their children all deny any knowledge of a marriage between the Deceased and the Objectors’ mother. The Petitioners first and second witnesses Joseph Kiragu Kariuki And Joseph Magu Mukabi both told the court that they knew the Deceased and his family very well. The witnesses stated that the Deceased had only two (2) wives Mary and Rachel and that the Deceased settled each wife on different parcels of land. The witnesses went on to name the children of each wife. They deny any knowledge of the Respondents of their mother ‘Virginia.’ As stated earlier marriage in the African context are not secretive affairs. The Deceased was an openly polygamous man. If he had married an additional wife then I have no doubt that he would have notified his family and friends of the fact.

37. It is pertinent to note that upon her death the Objectors’ mother was not buried by the Deceased in his homestead in compliance with customary norms. Instead she was buried in her parents’ home. This is further evidence that the said Virginia Wanjiru was not a wife to the Deceased.

38. The Objectors’ late mother Virginia did not ever use the name of the Deceased as a surname. She was variously referred to as ‘Virginia Wanjiru Ali, ‘Virginia Wanjiru Kimondo’ or Virginia Wanjiru Gathee’. From the evidence it would appear that the objectors’ mother cohabited with the Deceased for a period of time but they later disagreed and the Deceased returned to his family in ‘Othaya’

39. The next question would be whether sufficient evidence was adduced to lead to a ‘Presumption of marriage’ between the Deceased and ‘Virginia’. In the case of Hortensiah Wanjiku Yawe -vs- The Public Trustee [1976]--------the court stated as follows:-“(i)The onus of proving customary law marriage is generally on the party who claims it.(ii)The standard of proof is the only usually for a civil action namely “on the balance of probabilities.”(iii)Evidence as to the formalities required for a customary law marriage must be proved to that standard.(iv)Long cohabitation as a man and wife gives rise to a presumption of marriage in favour of the party asserting it.(v)Only cogent evidence to the contrary can rebut the presumption.(vi)If specific ceremonies and rituals are not fully accomplished this does not invalidate such a marriage.”

40. The Objectors claimed that the Deceased cohabited with their mother as man and wife from the year 1979 to 1998. Aside from the statements of the Objectors (who are parties to this suit) no independent evidence was availed to prove that the Deceased did in fact cohabit with Virginia for this period of time. There is no evidence that the Deceased introduced ‘Virginia’ to family or friends as his wife or that the two held themselves out as a married couple. Indeed the local chief admits that he did not know of the existence of ‘Virginia’ and her children until this dispute arose. I therefore find that no presumption of marriage can be said to exist.

41. Having so stated I do agree with the observation of the learned trial magistrate that the finding that no marriage existed between the Deceased and the Objectors’ mother does not preclude the possibility that the objectors were the biological children of the Deceased. Their status as beneficiaries is not dependant on the proof of a valid marriage between the Deceased and their mother.

42. The next question therefore is whether sufficient evidence was placed before the court to prove on a balance of probabilities that the four objectors were in fact the children of the Deceased.

43. The Objectors had filed in the trial court copies of their birth certificates and national Identity cards. Although they later opted not to produce the same;- these documents were not expunged from the record. As such they remain documents which the court is at liberty to refer to.

44. The said identification documents appear from pages 100 to 118 of the record. The Birth Certificate Serial No. 4527398 issued to Samuel Ali (2nd Respondent) does not name the Deceased as the father. There is no entry under father’s name, yet somehow the 2nd objector decided to obtain an identity card using the name Samuel Ali Mutahi i.e to include the name of Deceased.

45. However the identification report for the 2nd Respondent gives the name of his father as ‘Joseph Mutahi’. That is not the name of the Deceased herein. The court can only conclude that this is a different ‘Mutahi.’ The names on this identity card do not correspond with the names on the Birth Certificate and there is nothing to show that the Deceased authorized and/or consented to the use of his name on this identity card.

46. It is only the birth certificate of Martin Wachira (1st Objector) where the Deceased is named as the father. However it is suspicious and indeed raises questions that this Birth Certificate was issued on 13th August 2021 yet the Deceased died on 27th November 2017 i.e the Birth Certificate was issued four (4) years after the death of the Deceased.

47. In the Birth Certificate of Elizabeth Ngima (the 4th Respondent) the Fathers name is given as ‘John Mutahi Mwangi.” These are not the given names of the Deceased. Further this name differs from the name given by the 2nd Respondent yet the objectors’ all claim to have had the same father. If that is the case then why do their documents bear different names for this father.

48. Under cross-examination the 2nd Respondent states;-“I know the name John Mutahi Mwangi, it is familiar, but I cannot place the face to the name. I am not related to John Mutahi Mwangi.Under Re-examination the 2nd Respondent categorically states that “I do not know John Mutahi Mwangi. That is all” [Own emphasis]

49. This John Mutahi Mwangi is named in the docuemtns of the 4th Respondent as her father. Yet her brother (the 2nd Respondent) claims not to know any such person. It is obvious that the evidence of these witnesses is fabricated hence the inconcnsistencies. In any event what becomes clear is that this John Mutahi Mwangi is not the Deceased herein.

50. The only name in common with that of the Deceased is ‘Mutahi’. People can and often do bear similar names. The name ‘Mutahi’ was not reserved for the Deceased alone.

51. The 3rd Objector Daniel Kimondo did not avail his birth certificate. His Identity card at Page 103-104 did not bear any of the names of the Deceased. The particulars in the Identification Report (Paragraph 104) gives the family name of the 3rd Objector as ‘Mbogo’. This is not one of the known names of the Deceased.

52. Further I note that the 4th Respondent’s (Elizabeth Ngima) Birth Certificate Serial No. 472857 was also issued on 8th April 2021 which is after the death of the Deceased.

53. In both cases the birth Certificates which purportedly identify the Deceased as the father were issued several years after the death of the deceased. Section 12 of the Births and Deaths Registration Act Cap 149, Laws of Kenya provides that:-“No person shall be entered in the Register as the father of any child except at the joint request of the father and mother of upon the production to the Registrar of such evidence as he may require that the father and mother were married according to law or in accordance with some recognized customs.”

54. A certificate of birth obtained after the death of the deceased would raise doubt as its genuiness and the court is entitled to a plausible explanation for such turn of events. In any event, a certificate of birth, even though a proper one, is not adequate proof of paternity. In the matter of Kamau Muigai (Deceased) (2018) eKLR Hon. Justice Musyoka held as follows:-“Regarding the second Applicant there is a Birth Certificate on record that places the name of the late son of the Deceased on record as her father. The family claims that she was not related to them as she was not introduced as such. The certificate was obtained before the alleged father died. I am however, alive to the fact that a certificate of Birth is not adequate proof of paternity…..” [Own emphasis]

55. Similarly in the Matter of The Estate of Peter Muraya Chege Alias Muraya Chege (2019) eKLR Hon. Justice A. K. Ndungu held that:-“In this time and age of considerable scientific discovery, development and achievement, where a dispute arises as to the paternity of an individual, there is no better way to settle that issue with finality than through a dependable DNA test.”

56. The very real possibility that these documents were obtained deliberately with a view of ‘presenting them as evidence to support the objectors’ claims cannot be ignored. Given the numerous anomalies in the identification cards and birth certificates I find that the same do not constitute conclusive evidence of paternity.

57. The Objectors went on to claim that the Deceased provided for them as a father and that the Deceased continued to make such provision even after he had separated from their mother. They alleged that the Deceased paid their school fees, paid for their medical expenses and provided money for food.

58. There was no evidence tendered to prove that the Deceased met any of the above expenses. No invoices for school fees sent to the Deceased were produced. No evidence of payment of medical expenses for any of the objectors was availed. These remain unproven allegations.

59. The objectors went on to claim that the Deceased purchased a parcel of land in Nanyuki which land he had registered in the name of ‘Daniel Kimondo’ (the 3rd Objector). That the Deceased put up a residential house on this parcel of land to settle the objectors.

60. Once again no proof was tendered to show that the Deceased ever purchased a parcel of land in Nanyuki. No Sale Agreement was produced. Details of this parcel of land i.e the land Reference Number was not availed to the Court. Indeed under cross-examination the 1st Respondent says:-“My father bought land for us in Nanyuki. We live on the land. I cannot recall the land registration number”

61. If as 1st Respondent claims they lived on this land in Nanyuki then nothing would have been easier than providing the Title documents in order to confirm the existence of the said parcel of land as well as ownership of the same. Once again this remains an unproven allegation by the objectors.

62. The Objectors further claim that upon the demise of their mother the Deceased met all the funeral expenses for the burial of their mother in her parents home. Once again this remains a mere allegation. No documents, receipts and/or invoices were produced to show that the Deceased met these funeral expenses. Indeed there is nothing to show that the Deceased ever even attended the burial of the objectors’ mother.

63. It is pertinent to note that although they claim to be the biological children of the Deceased there exists no evidence to show that any of the objectors participated in and/or attended the burial of the Deceased, yet they were all adults when the Deceased passed away. Why would he objectors fail to attend the burial of a man whom they now insist was their father. Why wait until several years after his demise to pop up and claim that the Deceased was their father - and only when succession proceedings have commenced.

64. Lastly I will deal with the involvement of the local chief in this matter. Pw5 Paul Wamae Kamano told the court that he was at the material time the chief or Iriani South Location where the Deceased hailed from. He told the court that he knew the family of the Deceased very well.

65. Pw5 confirmed that in his initial letter dated 24th November 2020 he indicated that the family of the Deceased consisted of two widows Mary Wanjiku Mutahi and Rachel WOthaya Mutahi and their children. No mention was made in this letter of Virginia Wanjiru or any of the objectors.

66. Later on Pw5 stated some people came to his office claiming to be the children of the Deceased. The chief called all the parties to a meeting in his office but no solution was reached.

67. Pw5 went on to state that he conducted further investigations. He then wrote a second letter dated 27th November 2021 in which he included the Objectors and their mother as beneficiaries of the Deceased’s estate.

68. From his evidence it is apparent that the chief wrote the second letter naming the Objectors as beneficiaries a full twelve (12) months after he had written the first letter which did not include the objectors. What made the chief change his mind regarding the identity of the beneficiaries of the Deceased?

69. The chiefs letter though not a legal requirement has become a critical requirement in succession causes as a tool to enable the court to determine the genuine heirs of the departed individual. It is presumed that the local chief is the person best placed to identify the immediate family parents, wives and children of a Deceased person. Indeed under cross-examination Pw5 stated“I have been an Assistant Chief and chief for 16 years. I know a majority of people………….”

70. Pw5 had been an administrator in the Deceased’s locality for sixteen (16) years. Yet he had no idea that the Deceased supposedly had a third wife and other children. What made the chief change his mind and conclude that the objectors were in fact the children of the Deceased.

71. Firstly there seems to be an implication that Pw5 was pressurized into changing his mind. In his evidence Pw5 narrates how he was summoned to court and directed to write a second letter to include the objectors. He says“…………………..i was summoned to court why I could not write a letter for the children who came. The court gave me 14 days to write another letter…….” [Own emphasis]

72. Pw5 says that he conducted further investigations which led him to write the second letter naming the objectors as beneficiaries. It is clear that Pw5 relied on what the objectors told him. He states that he spoke to some relatives [of Deceased] who gave leads that connected the objectors to the Deceased. Pw5 did not name these relatives he allegedly spoke to nor did he reveal what evidence persuaded him that there existed a connection between the Deceased and the Objectors.

73. Later under cross-examination Pw5 states that an elder named Charles Kamau gave him the information linking the Deceased to the objectors. This Charles Kamau was not called to testify in this case.Pw5 did not reveal what information this elder gave him that led to his changing his mind regarding the beneficiaries of the Deceased. This remains hearsay evidence with little probative value to the court.

74. Under further cross-examination Pw5 says that“I did not get information on Virginia’s last born. Biologically I am not sure of the children of Virginia.”By this Pw5 is admitting that he is not sure if the children of ‘Virginia’ were fathered by the Deceased.

75. In this modern age with the advances in science, courts do not need to rely on guess-work to establish paternity. All that would be required is a simple DNA test to prove the paternity of the objectors into a 99. 9% degree of certainty.

76. I note that the objectors did file an application in the lower court dated 14th March 2021 seeking orders to have a DNA test conducted to determine the paternity of the objectors. This application was heard by the trial court who in a ruling delivered on 3rd May 2023 dismissed the prayer for DNA testing. In that ruling the trial magistrate observed as follows:-“There is no other evidence adduced to demonstrate the relationship between the deceased and the Applicants’ [Objectors’] mother. I then asked myself if this evidence was enough to warrant a DNA test to be conducted on the Applicants to establish paternity. I don’t think so. I was not persuaded that the birth certificates and ID cards as presented were genuine due to the inconsistencies pointed out. The dates of birth of the siblings are contradictory and some less than nine months apart especially with respect to the 2nd, 3rd and 4th Respondent. Unless some of the siblings were adopted which I have not been told. I also noted that their mother’s name morphed with every birth certificate. Virginia Wanjiru Gathee, Virginia Wanjiru Ali and Vriginia Wanjiru. I could not tell with precision which of the two sets of documents to rely on. This casted a dark cloud on the credibility of the identification documents………….”

77. In the same ruling the trial court went onto state that:-“There is no proof of a customary marriage between the deceased and the Applicants mother, nothing was presented to demonstrate their parents had long cohabitation, no evidence to show the Deceased took care of them as her children and that he paid the funeral expenses for their late mother…………………. Having failed to meet the test, I find that there is no justification to consider or to order for the DNA test to be conducted to establish paternity of the Applicants…………”[own emphasis]

78. From the above lengthy quotation it is evident that the trial magistrate was not persuaded that sufficient grounds had been laid to order for a DNA test i.e she found no link between the objectors and the Deceased. No new or fresh evidence was adduced during the trial. It is difficult to see why same court came to a different conclusion in the ruling of 20th December 2023.

79. From my reading of the ruling dated 20th December 2023 it is clear that the only reason why the trial court found that the objectors were entitled to be included as beneficiaries of the estate was the fact that they bore similar names to the recognized children of the Deceased. In the said Ruling at Paragraphs 130 the learned Magistrate stated as follows:-“30. I have considered all of the above carefully, in as such as I can find that the failed to produce any documentary evidence in support of their case. I however found that I cannot shut my eyes on the fact that some of the Objectors bear similar names of the children of the Petitioners and I take judicial notice of the fact that in the Kikuyu customary laws that the first son and daughter are usually named after the parents of the father. This I cannot ignore and I cannot state that it is coincidental. I was also persuaded by the testimonies of the Objectors uncle and Agnes Wamaitha who both testified to the marriage between the deceased and Virginia and that the four Objectors were born out of this union. These pieces of evidence in my view, draws the connection between the objectors and the deceased whom I find on a balance of probabilities was their father.” [Own emphasis]

80. In as much as the Gikuyu Community does have naming patterns for children born within a marriage, the fact of naming alone is not in my view sufficient proof of paternity. This would be too tenuous a link. A mother is free to give her child any name she wishes and name alone cannot entitle a person to inheritance rights.

81. In any event as stated by the trial magistrate himself the Kikuyu naming customs require that the first son and the first daughter be named after the parents of the father. In this case the 1st objector Martin Wachira Mutahi is the one who ostensibly is named after the father of the Deceased. The Respondents state that 1st Objector is not the first son of his mother ‘Virginia Wanjiru’. That he is in fact the 3rd son. That it is Daniel Kimondo (3rd Objector) who is the first son and who therefore ought to have been given the name of the Deceased’s father.

82. The second chief’s letter dated 27th November 2021 confirms this fact. In said letter it is indicated that Daniel Kimondo aged 40 years is the supposed first child of ‘Virginia’ and Deceased whilst Martin Wachira Mutahi whose age is given as 34 years is the last born child. It is clear that the alleged first born son of Deceased and the objectors mother bears the name ‘Kimondo’ which is not the family name of the Deceased. Moreover as stated earlier the family name of the 3rd Respondent was given as ‘Mbogo’ and not ‘Mutahi’. Under cross-examination the 3rd Respondent states that;-“I am the 1st son. I am named after my paternal grandfather. His name was Daniel Kimondo. My father is Mutahi Mutitu and John Mutahi Mwangi. I do not know where Mwangi comes from” [own emphasis]

83. Clearly the 3rd Respondent has no idea what he is talking about. He identifies his father by two different names. Then he says he has no idea where the name ‘Mwangi’ came from. The Appellants states that the name ‘Mwangi’ is not one of the names by which the Deceased father was known. The evidence of the 3rd Respondent is incoherent and disjointed. He is clearly not being truthful. No explanation was offered for this anomaly. Therefore the naming customs of the Gikuyu community were apparently not adhered to in this case and ought not have been taken to amount to proof of paternity.

84. I find that no tangible and incredible evidence was adduced to prove that the Deceased recognized and/or accepted the objectors as his children.

85. Further I find that the learned trial court erred in relying on the existence of a customary marriage between the Deceased and the Objectors’ mother when in fact no evidence of such customary union existed. Moreover as the trial court itself had pointed out proof of existence of a marital union does not amount to proof of paternity.

86. The only other way the Objectors could stake claim to the estate of the Deceased is by proving that they were dependants of the Deceased in terms of Section 29 of the Law of Succession Act i.e that they were dependant on the Deceased immediately prior to his demise. This has not been proved at all. As noted the Objectors did not even attend the burial of the Deceased.

87. Finally I find that the objectors failed to adduce evidence to prove on a balance of probabilities that the Deceased was their father. The Objectors have not proved that they were dependant on the Deceased immediately prior to his death. The Objectors have failed to prove that they are genuine beneficiaries of the estate of the Deceased and are entitled to inherit therefrom.

88. Based on the foregoing I find that the true and genuine beneficiaries of the estate of the Deceased are his two widows Mary Wanjiku Mutahi and Rachel WOthaya Mutahi and their children. This is in line with Section 29 of the Law of Succession Act which defines a dependant as“(a)The wife or wives or former wife or wives and children of the deceased whether or not maintained by the deceased immediately prior to his death.”

89. In conclusion I am satisfied that this appeal has merit. The same is hereby allowed. This court makes the following orders:-(i)The orders made in the Ruling delivered by Hon. M. N. Munyendo, Principal Magistrate on 20th December 2023 in Othaya PM Succession Cause No. E014B of 2020 is hereby set aside.(ii)Grant of Letters of Administration Intestate in respect of the estate of Mutahi Mutitu alias Mutahi s/o Mutitu (Deceased) to issue to Mary Wanjiku Mutahi and Rachel WOthaya Mutahi as joint administrators.(iii)This being a family matter I direct that each party meets its own costs.

DATED IN NYERI THIS 17TH DAY OF MARCH 2025. ….……………………MAUREEN A. ODEROJUDGE