[2023] KEHC 24817 (KLR)

Ngingo v Mwangi & 2 others (Civil Appeal 41 of 2019) [2023] KEHC 24817 (KLR) (3 November 2023) (Judgment)

Neutral citation: [2023] KEHC 24817 (KLR)

Republic of Kenya

In the High Court at Kerugoya

Civil Appeal 41 of 2019

LM Njuguna, J

November 3, 2023

Having considered the relevant case law and the submissions, I find that the appeal lacks merit and is hereby dismissed.

Between

Roseta Misere Ngingo

Appellant

and

Sophia Warware Mwangi

1st Respondent

Peris Nyaguthii Kamore

2nd Respondent

Beth Njoki Gachoki

3rd Respondent

(Appeal from the Judgment of Hon. E.H. Keago SPM delivered in Senior Principal Magistrate’s Court Baricho Succession Cause No. 573 of 2016 on 17th May 2019)

Judgment

1. The appellant has filed memorandum of appeal dated 17th June 2019, being dissatisfied with the above-cited decision of the trial court, now seeking orders that the appeal be allowed with costs, the judgment be set aside and substituted with an order dismissing the amended protest with costs and allowing application for confirmation of grant dated 15th March 2016 in accordance with paragraph 16 of the affidavit of even date.

2. The appeal is premised on the grounds that the learned magistrate erred in law and fact by:a.Failing to judiciously analyze all the evidence and submissions placed before him thereby leading to a wrong conclusion;b.Failing to consider the undisputed fact that during her lifetime, the deceased gave the protestor’s mothers one acre each and leaving one acre namely Mwerua/Kagio/2058 for the Petitioner, thereby contravening section 42 of the Law of Succession Act;c.Disregarding verbal and affidavit evidence and written submissions of the appellant;d.Holding that the property Mwerua/Kagio/2058 was where the deceased and the appellant lived and that it was not transferred to the appellant during the lifetime of the deceased for good reasons presented in evidence;e.Holding that the deceased never wished for her estate to be divided amongst her children;f.Giving a mode of distribution of the property Mwerua/Kagio/2058 that is ambiguous and incapable of being effected.

3. A grant of letters of administration was issued on 24th July 2017 to the appellant. She proceeded to file summons for confirmation of the grant dated 15th March 2018 together with an affidavit of even date in support of the summons. In the affidavit, she stated that she is the only surviving child of the deceased and is entitled to the whole of the property known as Mwerua/Kagio/2058. She averred that the deceased had given property to the parents of the respondents, and that they have inherited through their parents.

4. The respondents filed a protest stating that they were dependents of the estate of the deceased and that they have a share in the inheritance. They stated that the appellant did not consult them before filing the summons for confirmation of grant.

5. The trial court took viva voce evidence. PW1 was the 1st respondent who was the 1st protestor who stated that her mother, Wangu Muchiri, was one of the sisters of the appellant herein. She stated that she did not have the exact property numbers on hand but she knows that the appellant was also given 1 acre by the deceased. That her late mother was buried on the portion of land that had been given to her by the deceased. She stated that the property given to her mother had been subdivided and sold. That she did not know the whereabouts of the other portions of the land but she knows that the appellant lives on the portion of land left by the deceased. PW2 who was the 2nd respondent herein stated that the deceased had sold 1 acre and the proceeds were for the benefit of the appellant. That the appellant continued to live on the land of the deceased until her death. That the deceased subdivided the land and paid for the incurring expenses herself.

6. The appellant, testified that the deceased had 4 children and one predeceased her. That she had 10½ acres of land and she gave 6½ acres to the widow of the son who predeceased her. That the remaining 4 acres remained in her name. It was her testimony that when the deceased was dividing land to her siblings, the appellant advised her not to apportion her any land because of her hostile husband who was looking forward to selling the said land. That it was better for her to live on her mother’s land rather than transferring the portion to her. She testified that she was aware that the deceased had subdivided and given portions of land to her two deceased sisters, one acre each and that she does not know when the deceased sold another one acre as she was not living at home at the time. That her deceased sisters shared out their portions of land to the respondents herein and they should not be claiming the portion left as it belongs to the appellant and her children.

7. In this appeal, the court directed that the parties file their written submissions. Upon perusal of the appellant’s submissions dated 13th July 2022, I have noted that the same are not relevant to this case as they relate to a different cause altogether. Therefore, this court will not consider the arguments therein in making its decision. The appellant also filed “appellant’s replying submissions” dated 12th July 2023 under Order 42 Rule 19(2) of the Civil Procedure Rules. I have read the provision cited and the same is not applicable in this instant.

8. The respondents submitted that in as much as the appellant was the only surviving child of the deceased, it is not true that the whole portion of land belonging to the deceased should be inherited by her alone. It is their argument that the appellant cannot lay claim on the property on the basis that it was a gift from the deceased. That there is no evidence that the deceased did not wish that her property should not be inherited by the respondents. That the court noted that the appellant was not the only dependent with the right to inherit the estate of the deceased as the other deceased siblings were survived by the respondents. The respondents argued that they should be awarded the costs of the appeal.

9. In my view and from the foregoing, the issue for determination is whether the respondents are entitled to claim the estate of the deceased as grandchildren in place of their deceased parents.

10. To begin with, the appellant is right to lay claim on the estate of the deceased. However, the question arises as to whether she is the only child surviving the deceased. From the evidence, it is true that the appellant is one among four siblings and three of them are already dead. The respondents are the children of two of those deceased siblings of the appellant, meaning that the respondents are grandchildren of the deceased. The law guides us on the issue of inheritance by grandchildren of the deceased.

11. Section 38 of the Law of Succession Act provides that:Where an intestate has left a surviving child or children but no spouse, the net intestate estate shall, subject to the provisions of sections 41 and 42, devolve upon the surviving child, if there be only one, or shall be equally divided among the surviving children.

12. 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.

13. It is trite that grandchildren of the deceased cannot inherit directly from the estate of the deceased but only through their parents by taking the place of their deceased parents in the estate of the deceased. The same applies when the parents of the grandchildren die before distribution of the estate of the deceased. In the case of In re Estate of Florence Mukami Kinyua (Deceased) [2018] eKLR where 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.””

14. It is not before this court to determine how the deceased dealt with her property before her death. Of importance is what portion of the deceased’s estate is defined as intestate and who can lay claim on it. It is settled that property Mwerua/Kagio/2058 is the only estate in the name of the deceased that is available for distribution. The trial magistrate rightly found that the respondents were within their right to claim part of this estate in their representative capacities for their deceased parents. The magistrate ordered that a certificate of confirmation of grant do issue indicating the appellant and respondents as beneficiaries in equal measure.

15. Based on the above, it is my view that the trial magistrate was correct in his finding and I find no reason to disturb the judgment.

16. Having considered the relevant case law and the submissions, I find that the appeal lacks merit and is hereby dismissed.

17. Each party shall bear their own costs as this is an issue between members of the same family.

18. It is so ordered.

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