[2018] KEHC 4769 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KIAMBU

HIGH COURT CIVIL APPEAL NO. 44 OF 2016

PETER KAMAU NJAU...................APPELLANT

VERSUS

HANNAH WANGARI NJAU........RESPONDENT

(Being an appeal from the Judgment of Honourable Ochieng, Chief Magistrate, delivered on 16th December, 2014 in Succession Cause No. 8 of 2009 - Kiambu)

JUDGMENT

1. This is an appeal from the Judgement delivered on 16/12/14 by Honourable Ochieng (Chief Magistrate) in succession cause No.8 of 2009-Kiambu.

2. The Appellant herein, Peter Kamau Njau, filled this appeal and raised the following grounds:

a) That the Learned Magistrate erred in law and in fact by misdirecting himself as to the issues before him and hence determining the cause in issue as though it was a matrimonial cause.

b) That the Learned Trial Magistrate erred in Law and in fact in relying and considering extraneous matters as a foundation for his judgment.

c) That the Learned Magistrate erred in Law and in fact in failing to find that no substantive evidence on distribution of the estate was tendered by the respondent.

d) That the Learned Magistrate erred in law and in fact in failing to appreciate the very solid points of law raised by the appellant in his submissions.

e) That the Learned Magistrate erred in law and in fact in arbitrarily favouring the respondent with a grossly retrospective award in absolute conflict with the pleadings basis thereof.

f) That the Learned Magistrate erred in law and in fact in failing to find that the legal pre-requisites of a summons for confirmation were non-existent and hence summons was fatally defective and ought to have been dismissed.

3. The appeal was canvassed by way of written submissions.

4. The Appellant through his counsel submitted that prior to his death the deceased had established a distinct status quo which could only be opined to have been his intention of how distribution of his estate would follow upon his demise.

5. Counsel submitted that the judgment by the trial court went against the very established intentions of the deceased as in the status quo.

6. The Respondent on the other hand submitted that the trial court was properly guided by the law in directing that the deceased’s property should be divided equally between the two houses.

7. The duty of the 1st appellate court was explained in the case of SELLE AND ANOTHER VERSUS ASSOCIATED MOTOR BOAT COMPANY LTD & OTHERS [1968] EA 123, where it was observed thus:-

“An appeal to this Court from a trial by the High Court is by way of 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 conclusion. 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 Judges findings of fact if it appears either that he has clearly failed in some point to take account of particular circumstances or probabilities materially to estimate the evidence or if the impression based on the demeanor of a witness is inconsistent with the evidence on the case generally”

8. The main issue for determination in this appeal as presented is:-

a) Whether the deceased’s estate should be shared equally between the two houses surviving the deceased.

9. The evidence on record is that the appellant was specially granted a plot by the deceased making the share of their house bigger than that of the 2nd wife’s house.

10. The trial court visited the deceased’s parcel of land to get to understand the issues of status quo that were being raised by parties.

11. The trial court found out that on the ground there were no permanent structures save for one belonging to the appellant.

12. Upon the court enquiring the said plot that the appellant alleges to have been granted, the appellant did not show a particular plot.

13. With that in mind, the trial court went ahead and ordered that the deceased’s land be shared equally amongst the two houses. I find no fault in that decision.

14. The appellant having failed to prove on a balance of probabilities that he had been given an extra portion before the death of the deceased, the trial court was left with no choice but to rely on section 40(1) of the Law of Succession Act.

15. In the circumstances, the appeal lacks merit and is hereby dismissed with costs.

16. Orders accordingly.

Delivered at Kiambu this 2nd day of August, 2018.

.........................

JOEL NGUGI

JUDGE