[2022] KEHC 13918 (KLR)

Mwangi & 2 others v Ngari & another; Muriuki & another (Interested Parties) (Civil Appeal 46 of 2018) [2022] KEHC 13918 (KLR) (18 October 2022) (Judgment)

Neutral citation: [2022] KEHC 13918 (KLR)

Republic of Kenya

In the High Court at Kerugoya

Civil Appeal 46 of 2018

RM Mwongo, J

October 18, 2022

Between

Wanja Wanjohi Mwangi

1st Appellant

Daniel Kariuki Wanjohi

2nd Appellant

Ezekiel Ngari Wanjohi

3rd Appellant

and

Jane Njeri Ngari

1st Respondent

Hannah Wamwirua Nagri

2nd Respondent

and

Andrew Murimi Muriuki

Interested Party

John Murage Njue

Interested Party

Judgment

Brief Facts 1. This appeal arises from a Ruling and orders made on July 5, 2018 by Hon M Kivuti, RM, in Baricho SPMC Succession Cause No 418 of 2016, with which the appellants are dissatisfied. The appellant raises the following grounds:1. That the learned magistrate erred in law and facts in making judgement against the weighty evidence.2. That the learnt magistrate erred in law in disregarding the evidence tendered by the appellants thereby arriving at an erroneous decision.3. That the learned magistrate erred in law and facts in failing to find that the appellants had established that they were dependants on LR Mwerua/Kagioini/359. That the learned magistrate erred in law and facts in failing to find that the deceased held LR Mwerua/Kagioini/359 in trust for his younger brother Wanjohi Mwangi who was survived by the appellants and the same didn’t therefore comprise the estate of the deceased herein.

2. The background of the matter is as follows.

3. The deceased, Ngari Mwangi Mocha died intestate on January 15, 1995. On July 14, 2016 the petitioners applied for a grant of letters of administration intestate, which was issued to them on February 20, 2017. However, on October 6, 2016, the protestors filed a caveat indicating that nothing should be done in the estate of the deceased without notice to them.

4. On April 3, 2018, the petitioners took out summons for confirmation of Grant of the estate comprising Parcel Nos Mwerua/Kagioini/359 measuring 3 acres and parcel Kiine/Kibingoti/ Nguguini/1046. Their proposed mode of distribution was as follows:-Mwerua/Kagioini/359 measuring 3 acres be jointly shared by the two petitioners, and- Kiine/Kibingoti/Nguguini/1046 be shared between the two petitioners each receiving one and half acres jointly; and the remaining one and a half acre be shared jointly between the children of the deceased namely Jane Njeri Ngari, Mercy Wanjiru Ngari, Peter Maina Ngari and Grace Wairimu Gitari.

5. On April 17, 2018, the protestors filed a joint Affidavit of protest against the proposed mode of distribution by the petitioners on the grounds that the deceased was the younger brother of the 1st petitioner’s husband; Wanjohi Mwangi and hence entitled to the estate.

6. The protestors’ protest was heard and dismissed and the grant confirmed as per the petitioners’ proposal.

Parties’ submissions 7. The appellants submitted on two prongs: that there was a customary trust and that they were dependents.

8. As regards customary trust, the appellant submit that it was not in dispute that the Land Parcel Mwerua/ Kagioni/359 was given to Ngari Mwangi by the clan. It was the 1st Appellants evidence that the land Mwerua/Kagioni/359 given to Ngari Mwangi by the clan was meant to be subdivided between Ngari Mwangi and Wanjohi Mwangi. This is the only explanation as to why to date the Appellants live on the LR Mwerua/ Kagioni/359.

9. They further submit that the customary trust was at all times an overriding interest, on the land. The trust was also created when the land was issued to Ngari Mwangi by the clan, and though the land was registered in Ngari Mwangi’s name, he only held it in trust for his younger brother Wanjohi Mwangi.

10. They argue that there is no demonstration of trust because the deceased was buried in a different parcel of land from the one the1st appellant claimed to have dwelled in. The appellants never raised the issue of the deceased being the trustee of the land parcel Mwerua/Kagioini/359.

11. The respondents also submit that there is no pleading or proof of any trust in the deceased land. The appellant raised confusion and showed she does not have a clear claim as she is claiming both lands on grounds of dependency, ground that the 1st appellants husband bought the land jointly with the deceased and that the deceased held the land in trust. They state that the court correctly held that utilizing the deceased’s land did not confer any ownership on the appellants.

12. As regards dependency, the appellants/ protestors submit that they fall under Section 29(b) of the Law of Succession Act since, prior to the deceased death, he took the protestors as his own and further that he also maintained them. It was the evidence of the 1st appellant that she lives on parcel LR Mwerua/Kagioni/359 and the deceased died while she was still living there. The deceased, Ngari Mwangi even bought iron sheets for her to build her house, and planted coffee for her. The house still sits on LR Mwerua/Kagioini/359.

13. The respondents’ submissions were that the appellants had made admissions that they were not dependent on the deceased. They urged that Section 107 of the Evidence Act places the burden of proof on the party who wants the court to rely on the existence of any set of facts to make a finding in his favour, to prove those facts. It was therefore correct for the court to rule that they failed to prove dependency in its judgement and we submit that the judgment was sound and we urge the court to dismiss ground one and two of the appeal.

14. Further, the respondents submit that under the Law of Succession Act one cannot inherit land by being a dependant on someone’s land.

15. They stated that the trial court noted that the respondents had produced an introduction letter from the chief introducing the rightful beneficiaries of the deceased and the appellants were not included in the letter as they were not rightful beneficiaries. Accordingly, they submit, the appellants neither proved they were dependents nor was their claim recognized by section 29 or section 26 of the Act. Thus the appellants cannot inherit under section 35 of the Succession Act as the deceased was survived by 2 wives and children as per the introduction letter by the chief.

16. The respondents also submit that the trial court had no jurisdiction to hear the issues of trust. They submit that succession proceedings are not the appropriate way to challenge the deceased’s title.

Issues 17. The issues that arise for determination are as follows:1. Whether the appellants were dependents of the deceased.2. Whether the deceased held the suit land in trust for the appellants.

Analysis and Determination Whether the appellants were dependents of the deceased 18. From the testimony and documents in the lower court, the relationships are as follows. The 1st respondent who testified as PW1, was the wife of the deceased, Ngari Mwangi. The 2nd respondent was also a wife of the deceased.

19. The 1st appellant (DW1) was the sister in law of the deceased, as her late husband, Wanjohi Mwangi, was the brother of the deceased. He died in 1978, prior to the deceased’s death. He was apparently buried on LR No Kiine/Kibingoti/Nguguini/1046.

20. The 3rd appellant, Ezekiel Ngari Wanjohi (DW3) is the son of the deceased’s brother and the 1st appellant, and thus a nephew of the deceased. Similarly, the 3rd appellant DW3 Ezekiel Ngari Wanjohi, is the son of the deceased’s brother and the 1st appellant, and thus a nephew of the deceased.

21. The 2nd appellant, Daniel Kariuki Wanjohi DW2, stated that the deceased was his uncle and his mother is the 1st appellant. He was born in 1982, long after the decease of his mother’s late husband Wanjohi Mwangi. In cross examination, he denied that he was a dependent of the deceased.

22. The evidence given to suggest dependency was tendered by the 1st appellant who testified that the deceased bought her iron sheets and planted coffee for her. In cross examination however, she admitted that:“the coffee planted by Ngari ( the deceased) was done on his land……Ngari […..]never gave me any portion of the land….I have no evidence to prove that the deceased bought me iron sheets. I have been supporting my children alone. I educated 4 of them from the proceeds of the coffee…the deceased educated them the children by virtue of giving me coffee….”

23. Section 29 of the LSA defines dependant as follows:“Meaning of dependantFor purposes of this Part “Dependant”meansa.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 deathb.such of the deceased's parents, step-parents, grandparents, grandchildren, step-children, children whom the deceased had taken into his family as his own, brothers and sisters, and half-brothers and half-sisters, as were being maintained by the deceased immediately prior to his death; andc.where the deceased was a woman, her husband if he was being maintained by her immediately prior to the date of her death

24. While considering the meaning of a dependant under section 29 of the Act, the court held as follows in the case of Beatrice Ciamutua Rugamba v Fredrick Nkari Mutegi & Others, Chuka Succ Cause No 12 of 2016:“From the foregoing, a dependent under section 29 (b) and (c) must prove that he/she was being maintained by the deceased immediately prior to his demise. It is not the mere relationship that matters, but proof of dependency."

25. The overall undisputed evidence is that the 1st appellant’s children were brought up by her for some time in Nairobi, then when they moved to Kirinyaga they lived on Plot Kiine/Kibingoti/Nguguini/1046 which had been bought by the deceased; that that parcel of land is where the 1st appellant’s husband was buried.; That it was the deceased who moved the 1st appellant’s family to the Mwerua/Kagioini/359 parcel; and that the said Kagioini land had been given to the deceased by his clan after he had bought the Nguguini land.

26. Whether a person will be considered to have been entitled to be provided for from the estate of a deceased is determined by section 26 LSA, which provides:“Where a person dies after the commencement of this Act, and so far as succession to his property is governed by the provisions of this Act, then on the application by or on behalf of a dependant, the court may, if it is of the opinion that the disposition of the deceased's estate effected by his will, or by gift in contemplation of death, or the law relating to intestacy, or the combination of the will, gift and law, is not such as to make reasonable provision for that dependant, order that such reasonable provision as the court thinks fit shall be made for that dependant out of the deceased's net estate”

27. From the above evidence, I am unable to find that there is clear evidence that the appellants were in fact dependants of the deceased. it is clear

28. The mere fact of having been allowed to use land is not proof of dependency See Gitari J In re Estate of the Sandislau Murianki Mutwiria (Deceased) (Miscellaneous Succession Cause 49 of 2018) [2022] KEHC 423 (KLR)“The fact of one being allowed to use land does not make one a dependant. The law requires that one proves that he was a dependant as defined. It is trite that grandchildren don’t inherit from their grandparents. They inherit what their parents inherit unless they prove dependancy as pointed out above.”

29. I note that the appellants admit that they are not the Deceased’s children, and did not provide any concrete evidence of how the Deceased maintained the nieces and nephews, and the responsibility he undertook with respect to them. Indeed, one of them, the 2nd appellant, openly stated that he was not the deceased’s dependent, and that the combined affidavit of the appellants was incorrect.

30. Ultimately, I am not convinced of the alleged dependency relationship and find no basis to interfere with the trial court’s finding on this issue.

Whether the deceased held the suit land in trust for the appellants 31. The 1st Appellant testified that the land Mwerua/Kagioni/359 was given to Ngari Mwangi by the clan was meant to be subdivided between Ngari Mwangi and Wanjohi Mwangi. This, they submitted explains why to date the Appellants live on the LR Mwerua/Kagioni/359. The appellants submit that at all times this land had an overriding interest, a customary trust.

32. On their part, the respondents submit that the trial court had no jurisdiction to hear the issue of trust. They submit that succession proceedings are not the appropriate way to challenge the deceased’s title. In Re Estate Of The Late Jonathan Kinyua Waititu - (Deceased) [2017] eKLR the court stated:“…I do not think that these Succession proceedings are the appropriate way to challenge the title of the deceased to the said properties. Their claim of a trust is or ought to be the subject matter of a separate suit or proceedings. The objectors have to prove the trust and thereafter seek revocation of the title and/or partition thereof. This requires declaratory orders of the existence of trust. This is not the function of a Succession court where the claimant is neither a beneficiary nor dependant. Succession proceedings are also not appropriate for the resolution of serious contested claims against an Estate by third parties”.

33. Further, the respondents submit that the appellants never raised the issue of the deceased being the trustee of the land parcel Mwerua/Kagioini/359. I have perused the proceedings in the lower court, the protest and other documentation including the written submissions of the protestors. I have seen nothing there regarding a trust.

34. Accordingly, since the issue was never pleaded or deliberated upon as an issue in the trial court, it cannot now feature as a subject for appeal in the High Court.

35. In the premises the issue of customary trust is an afterthought which cannot feature as subject of the appeal. Accordingly, the same is hereby dismissed.

36. Given the findings and conclusions made on the two issues herein, the appeal is dismissed in its entirety.

37. In light of the nature of the matter parties shall bear their own costs.

38. Orders accordingly.

DATED AT KERUGOYA THIS 18TH DAY OF OCTOBER, 2022. .......................R MWONGOJUDGE,KERUGOYA HIGH COURTAsiimwe - holding brief for Magee for ApplicantKagio - holding brief for Thungu for RespondentNo representation - Andrew Murimi Interested PartyJohn Murage Njue - Present in personCourt Assistant - Murage