https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7859

Arusei v Arusei (Civil Appeal E120 of 2024) [2026] KEHC 7859 (KLR) (3 June 2026) (Judgment) Neutral citation: [2026] KEHC 7859 (KLR) Republic of Kenya In the High Court at Eldoret Civil Appeal E120 of 2024 E Ominde, J June 3, 2026 Between Rosemary Jerubet Arusei Appellant and Margaret Jeptanui Arusei Respondent (Being an appeal against the Ruling of Hon. N. Barasa Principal Magistrate delivered on 13th May 2024 in suit number Eldoret CMCSUCC E096 OF 2022 in the matter of the Estate of Thomas Kiplagat Arusei) Judgment 1.The Respondent filed an Affidavit of protest dated 11th October 2023 opposing the mode of distribution that had been proposed by the Petitioner. She pleaded that the deceased, who was her father, had distributed the estate before his death, to both houses with the 1st House of the late Jepkosgei Tameresei Arusei receiving 5 acres whereas the 2nd house, the petitioner, was given 9 acres. She deponed that the first house had 2 representatives whereas the 2nd house had 8 children and the Petitioner, by giving each of the children in the 1st house one acre, she had had disadvantaged the two of them. She prayed that their request be granted including the appointment of one of them as the co-administrator of the estate. 2.The parties filed submissions on the protest and the trial court, vide a Ruling delivered on 10th May 2024 allowed the objection. The court noted that due to the inclusion of Dinah Jeptarus in the P&A 5 form and form 38, the Petitioner had acknowledged her as a dependant and additionally, she was described as a daughter to the deceased in the chief’s letter. The court ordered that the parcel of land known as Moi’s Bridge/Sirikwa Block 2 (Ziwa) 138 measuring 14 acres be distributed between the two houses with the first house being allocated 5 acres and the rest be allocated to the house of Rosemary Jerubet Arusei. 3.Being aggrieved with the Ruling, the Appellant instituted this Appeal vide the Memorandum of Appeal dated 25th May 2024 premised on the following grounds.1.That the learned Magistrate erred in both facts and law in allowing the Respondent’s protest taking into account the totality of the evidence tendered during trial.2.That the learned Magistrate erred in both facts and in Law by failing to correctly evaluate to evidence and thereby among of a wrong conclusion that the Respondent’s sister is a beneficiary of the estate hereby finding in favour of the Respondent’s protest.3.That the learned magistrate erred in law and in facts by failing to appreciate that Respondent had submitted to having been settled by the deceased during his lifetime.4.That the learned Magistrate erred both in facts and in law in failing to take into the account the evidence tendered during trial that the Respondent submitted to the deceased having distributed the estate in his lifetime and awarding the Respondent more land.5.That the learned Magistrate erred both in facts and in law in validating acts of intermeddling of the estate of the deceased where chief awarded the Respondent 5 acres and the Appellant, incarcerated to the give effect of the 5 acres given to the Respondent.6.That the learned Magistrate erred both in facts and in law in applying the principles of testate succession in an interstate estate.7.That the learned magistrate erred in law and in facts by awarding the Respondent more land more than what she deserved.8.That the learned magistrate erred in both facts and law by finding that the deceased person had two wives hereby finding in favour of the Respondent protest.9.That the learned Magistrate erred in law and in fat by consideration irrelevant facts at the same time ignoring relevant facts hereby arrived at a completely erroneous conclusion.10.The learned Magistrate failed to properly analyze the evidence on record and appreciate the submissions of the learned counsel for the Appellant by finding favour at the Respondent herein.11.That the learned magistrate erred in law and facts by failing to justify the basis for her ruling as required. 4.The matter was canvassed by way of written submissions. The Appellant’s Advocate M/s Maritim & Company filed their submissions dated 2nd February 2026. There were no submissions filed on behalf of the Respondents. Appellants’ submissions 5.Learned Counsel for the Appellant laid down the duty of the court as an appellate court as per Selle and Another v Associated Motors Boat Company and Others [1968] EA and Williams Diamonds Ltd vs Brown [1970] EALR and proceeded to submit on the issues for determination. 6.On the 1st ground of the appeal, Counsel urged that the learned Magistrate's decision to allow the Respondent's protest was a fundamental error given the totality of the evidence tendered by the Applicant during trial. That a proper analysis of the evidence tendered by the Applicant ought to have led the court to the conclusion that the protest by the Respondent was without merit and the mode of distribution proposed by the Respondent was not fair. 7.Counsel submitted that it should not be lost that Rosemary Arusei effectively stayed with the deceased. Further, that Tameresei fell out with the deceased and moved out and only sired one child with the deceased. When Tameresei gave out her children in marriage none of the dowry was received by the deceased. He submitted that a person cannot be considered as a beneficiary of the estate of the deceased only in fair weather. 8.Additionally, that when sharing the gains of dowry, the deceased was not recognized yet on his demise, the family of Tameresei received the lion’s share of the inheritance. He urged that it should be noted that this estate devolved from the grand parents who gave Rosemary a home to settle in. Counsel cited Section 40 (1) of the Law of Succession Act and the case of In re Estate of Francis Andadbila Luta (Deceased) (Succession Cause 875 of 2012) [2022] KEHC 16900 (KLR) (23 December 2022) (Judgment) in support of this submission. 9.On Ground 2 counsel urged that Dinah Jeptarus Cheruiyot, who is the Respondent's sister, was never a child of the deceased. According to the evidence tendered, Dinah Jeptarus was married when the deceased was still alive, and the deceased never gave her out for marriage, nor did he receive her. He urged that Section 107 of the Evidence Act places the burden of proof on the party that alleges. Further, that In Re Estate of George Musau Matheka (Deceased) [2010] eKLR, it was held that on proving dependency, the onus lies on the claimant to prove paternity of the deceased. It is thus incumbent that the Respondent had the duty to prove on a balance of probability that Dinah Jeptarus Cheruiyot was indeed a daughter of the deceased and was entitled to be a beneficiary of the estate, which she failed to do. Therefore, the learned Magistrate erred in law and facts by elevating the Respondent's sister to the status of the beneficiary without a sufficient legal and factual basis, therefore misapplying Section 29 of the Law of Succession Act on who qualifies to be a beneficiary. 10.On Ground 3 of the Appeal, Counsel urged that the Respondent submitted in the trial court, that the deceased had made express provisions for each house. The trial court's failure to appreciate that the Respondent had been settled by the deceased led to the Respondent getting more land than what she deserved, leading to an unfair distribution of the estate of the deceased. 11.On Ground 5 of the Appeal, Counsel urged that the learned Magistrate erred in law and in fact in validating the acts of intermeddling of the estate of the deceased contrary to Section 45 of the Law of Succession Act. From the evidence on record, it is evident that the chief intermeddled with the estate of the deceased by awarding the Respondent 5 acres of the deceased's estate. That the distribution of an estate of the deceased, as stated in re Estate of Olengo Matete (Deceased) (Succession Cause 427 of 2007) [2023], can only be distributed in succession proceedings initiated under the provisions of the Law of Succession Act. 12.That an entity that gets itself involved in the matter without the leave of the court is deemed to be intermeddling, as stated in Re Estate of Alexander Mathenge Njera (Deceased) [2010] eKLR. Counsel urged that the learned Magistrate, instead of nullifying this illegal act of intermeddling, validated the acts by the chief. This validation is evident from the fact that the trial court's judgment was influenced and sought to give effect to this prior illegal distribution by the chief. The trial court was under the mandate of recognizing this as a grave breach of the succession process, yet it is clear that it took into consideration as relevant fact in its final determination. 13.On Ground 6 of the appeal, counsel urged that from the evidence tendered by both the Applicant and the Respondent, it is evident that the deceased died intestate. The trial court, however, applied the principles of testate succession in making its determination. The trial court relied on the submission made by the Respondent that the deceased, before his demise, had made an express indication of the provision and apportionment of each house. It is not disputed that the deceased died intestate since no will was presented before the court. The Respondent also failed to produce proof that the deceased had divided the land and that the proportion of the land was to be subdivided. 14.On Ground 7, Counsel urged that the learned Magistrate's final determination of awarding the Respondent herein 5 acres of the deceased estate. He urged that the award by the learned Magistrate was unjust, disproportionate, and was not supported by evidence tendered by both the Applicant and the Respondent. The distribution of an intestate estate where the deceased was polygamous is provided for under Section 40 of the Law of Succession Act. Further, that the provisions of Section 40 of the Law of Succession Act have been the subject of various judicial pronouncements, citing the decision of the high court in Chuka in Muriuki V Murianki [2023] KEHC 23458 (KLR). 15.Counsel urged that from the evidence tendered by the Applicant, it is clear that the Respondent is the only child from the first house, as no proof has been tendered to prove that Dinah Jeptarus Cheruiyot is also a daughter of the deceased. From the facts, it can be concluded that the first house has only one issue, while the second house has nine issues. In applying Section 40 of the Law of Succession Act, the court has discretion in ensuring a fair distribution of the deceased's estate, which should be exercised judicially on a sound legal and factual basis, as stated by the Court of Appeal in Scholastica Ndululu Suva v Agnes Nthenya Suva [2019] eKLR. Counsel urged that the learned Magistrate failed to exercise this discretion and therefore awarded the Respondent more land than she deserved. 16.On Ground 8 of the Appeal, Counsel urged that the learned Magistrate erred both in facts and in law by finding that the deceased had two wives, which in turn influenced her determination on the Respondent’s protest. That the Respondent alleges that their mother (deceased) was the first wife to Thomas Kiplagat Arusei (deceased), hence the duty of proving that marriage existed between her mother and the deceased, as per Section 107 of the Evidence Act, is on her. 17.That the Appellant submitted that she was the only lawful wife of the deceased and the inclusion of the Jepkosgei as a widow was done illegally by the chief in collaboration with the Respondent in a letter that was used to take out the grant of letters of administration. The Respondent has not provided any evidence to prove that her mother was the wife of the deceased. He urged that the trial court's finding that there existed a first house belonging to Jepkosgei Tapsaramgei without evidence of the existence of the marriage tainted the entire determination made by the trial court. 18.On Ground 9 of the Appeal, Counsel urged that the learned Magistrate erred in law and in fact by basing her determination on irrelevant facts and ignoring relevant facts raised by the Applicant. The trial Magistrate, in determining the suitable mode of distribution, relied on the chief’s letter dated 19th May 2018 which amounted to intermeddling with the estate of the deceased. In addition, the trial court's final determination that the deceased had two wives was irrelevant in determining the mode of distribution of the deceased estate since the Respondent tendered no proof to prove that her mother was indeed the deceased's wife. 19.That conversely, the trial Magistrate failed to consider relevant facts raised by the Applicant that were critical for the just determination of this matter. The trial Magistrate further relied on the Respondent's submission that they have been in possession and use of the parcel of land in deciding that the Respondent's proposed mode of distribution was the most suitable. 20.He referred to the Respondents’ submissions in the trial court and urged that if indeed the deceased had distributed the estate inter vivo as per the Respondent's submission, then the Respondent wouldn't have approached the trial court objecting to the mode of distribution proposed by the Applicant. He urged that there was no prior division of the estate of the deceased by the deceased as mere settlement doesn't amount to distribution as was held in Estate of Olengo Matete (Deceased.) (Succession Cause 427 of 2007) [2023] eKLR. 21.Counsel urged that the ruling delivered by the learned Magistrate demonstrates a patent illustration of failure to engage with the evidence and submissions tendered by the Applicant, hence finding in favour of the Respondent. He urged the court to consider the evidence by the Applicant and gives due weight to the facts therein. Counsel cited a plethora of authorities that the appellant sought to rely on and urged the court allow the appeal. Analysis & Determination 22.Having considered the grounds of appeal filed as well as the submisissions, it is my considered opinion that the issues that arise for determination are as set out hereunder;1.Whether the trial court erred in finding that the protestors were beneficiaries of the estate of the deceased.2.Whether the trial court erred in its finding on distribution of the estate 23.The court is guided by the principles as set out in Selle and Another v Associated Motor Boat Company Ltd & Others [1968] 1EA that sets out the duty of the first appellate court as follows;“…..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.” 24.On the issue of whether or not Dinah Jeptarus Cheruiyot is a dependant of the deceased and therefore a beneficiary of his estate, the court only needs to point out that parties are bound by their own pleadings. I note that the Appellant herein is the one who petitioned the lower court for a grant of letters of administration of the deceased estate in her capacity as a widow. In those proceedings, in every statutory document filed in support of the Petition by the Appellant herself, the said Dinah Jeptarus Cheruiyot is listed as a dependant of the deceased. 25.The court also notes that in the very same Petition the mother of the objectors is listed as a dependant of the deceased though she too is indicated as deceased. In this regard, by dint of the fact that a party is bound by their pleadings, the Appellant herein is now hereby estopped from asserting otherwise as regards the fact that the objector’s deceased mother was a wife to the deceased and Dinah was a daughter. I therefore find that the Learned Trial Magistrate did not err in her finding to that effect and the said finding is accordingly upheld. 26.On the second issue on whether the Learned Trial Magistrate erred in the manner in which she distributed the Estate and her reliance on the Chief’s directions as per the family meeting minutes availed to the court at the hearing, the distribution of the estate of a polygamous man is governed by Section 40 of the Law of Succession Act which provides as follows:1.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.2.The distribution of the personal and household effects and the residue of the net intestate estate within each house shall then be in accordance with the rules set out in sections 35 to 38. 27.In re Estate of Kamau Rungathu (Deceased) (Succession Cause 479 of 1994) [2022] KEHC 14417 (KLR) (31 October 2022) (Judgment) Prof Joel Ngugi J (as he then was) held as follows:“ 50.50. The literal interpretation of the above provision is that the estate is first distributed among the houses, depending on the number of children in each house, with any surviving spouse being an additional unit. Thereafter, the assets allocated to each house are distributed within the house in accordance with sections 35 to 38 of the Law of Succession. 51.The Courts have, however, cautioned against the uniform application of Section 40. In Scolastica Ndululu Suva v Agnes Nthenya Suva [2019] eKLR, the Court of Appeal recommended a case-to-case application of Section 40 of the Law of Succession Act as follows:It is therefore evident that, although section 40 of the Law of Succession Act provides a general provision for the distribution of the estate of a polygamous deceased person, the court has discretion to take into account the factual circumstances of the particular case that may be relevant in ensuring equitable and fair distribution of the estate. 52.The Court of Appeal further observed in Jane Nyambura Ndungu v Beatrice Wangari Ndungu & 2 Others [2021] eKLR:“Section 40 of the Law of Succession Act is not a magic pill that can be applied to resolve all issues pertaining to the distribution of a deceased person’s estate. In as much as section 40 LSA talks of “Equal Shares,” the distribution must also be equitable.” 53.The common thread from the above case law is that Section 40 of the Law of Succession Act is meant to ensure the equitable distribution of the estate and not necessarily the equal distribution. In arriving at the mode of distribution, the Court is to be guided by the facts of each case, including the circumstances of the beneficiaries at the time of distribution.” 28.The above being the settled law on the applicability of Section 40, the position in this cause is that the Appellants house with 8 children and a surviving widow comprises of 9 units. The 2nd House with 2 children and no surviving widow comprises 2 units bringing the total units to 11. The total land acreage available for distribution is 14 acres. In an ideal situation this divided equally amongst all the units brings the total acreage to around acreage of 1.27 acres per unit. 29.In the impugned judgement, the Trial Magistrate allocated 5 acres to the 2 units comprising the objectors house an 9 acres to the 9 units comprising the appellant’s house on the basis of the agreement reached by the family as per Chief’s letter. This therefore means that each of the 2 units in the objector’s house gets 2.5 acres each whereas each of the units in the appellant’s house gets 1 acre each. The Appellant herein had proposed 2.6 acres to be shared by the 1st house as her house retains the balance from the 14 acres. This would mean that each unit in the objector’ s house gets 1.2 acres each and each unit in the appellant’s house also gets 1.26 acres or thereabouts. 30.In considering these two proposals juxtaposed against the strict application of Section 40, I find that the proposal by the Appellant herein is more reason able, fair and just would have been more equitable distribution of the estate. The proposal adopted by the Trial Magistrate on the other hand is clearly grossly unfair and inequitable even just prima facie before juxtaposing the same against what would be ideal under Section 40 of the Law of Succession Act and for this reason, I find that the Learned Trial Magistrate erred in so distributing the estate and the said determination is now hereby set aside. 31.In light of the above, for reasons that the acreage of land available to be distributed is almost equivalent to the number of dependants, the court is of the opinion that a literal application of Section 40 of the Act is warranted in this case. In this regard, I now hereby find that the available units for the distribution of the estate are 11 and in line with the calculations that I have already herein done, each unit is allocated 1.27 acres out of land parcel Number Moi’s Bridge/Sirikwa Block 2 (Ziwa) 138. 32.It is so ordered. READ DATED AND SIGNED VIRTUALLY AT BUNGOMA ON 3RD JUNE 2026E. OMINDEJUDGE