https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10319

Wambui v Wakaba & another (Civil Appeal E057 of 2024) [2026] KEHC 10319 (KLR) (8 July 2026) (Judgment) Neutral citation: [2026] KEHC 10319 (KLR) Republic of Kenya In the High Court at Kiambu Civil Appeal E057 of 2024 MW Mutuku, J July 8, 2026 Between Samuel Mbiriri Wambui Appellant and Keziah Nyambura Wakaba 1st Respondent Daniel Kangangi Wambui 2nd Respondent (Being an appeal from against the judgement of Honourable Peter Muholi (PM) on 21st March 2024 in Githunguri Senior Magistrate’s Court Succession Cause no. 143 of 2019- In the matter of the estate of MARY WAMBUI WAKABA -Deceased.) Judgment 1.Before this court is an appeal against a Judgement delivered on 21st March 2024. The appellant filed a memorandum of appeal dated 27th May 2025 seeking the following orders:a)That the Appellant be declared to be the sole beneficiary of plot No. 2636 measuring 1/8 an acre.b)That property 3231 measuring about 1 ¼ Acres and plot 1170 measuring about ¼ Acers be shared equitably amongst the beneficiaries /heirs of the deceased taking into account plot No. 2636 occupied by the appellant.c)That the costs can be defrayed from the Estate or each party to bear their own cost. 2.The memorandum is anchored on the following grounds:-i)) That the learned magistrate erred in law and fact by holding that the appellant was intermeddling with the Estate of the deceased especially plot no 2636 without considering the evidence that the appellant had constructed and started living on the said parcel even before the demise of the decades being the owner and the deceased had therefore acquiescence the said occupation/construction thereby arriving at a very erroneous decision.ii)That the learned magistrate erred in law and fact by failing to consider exhaustively the size or assets of the estate of the deceased and wrongly considered the principles as to what amount to equality or equitable distribution thereby arriving at an erroneous decision.iii)That the learned magistrate erred in law and fact by failing to appreciate the length of time, occupied, the development on plot 2636 done by the appellant in exclusion of all the other beneficiaries who have never lived, occupied, possessed the plot during and after the deceased demise thereby arriving at an erroneous decision.iv)That the Learned Trial Magistrate erred in law and fact in holding that plot 2636 which is approximately 50 ft x 100 ft or 1/8 Acre and was fully developed by the appellant and his children should be shared out among the deceased five children without taking into consideration that an 1/8 acre is impractical or cannot be shared among 5 people both physically on the ground and also no title can issue in such a sub division thereby arriving at an erroneous decision.v)That the Learned magistrate erred in fact and law by applying the law strictly and without an open mind set by failing to appreciate that the deceased who had piece 3231 measuring approximately 1 ¼ of an acre and plot 1170 measuring ¼ acres were adequate enough to cater for all the other beneficiaries and would infant be in excess other than order the sharing out of a fully constructed property 2636 whilst the other two were vacant and available for sharing thereby arriving at an erroneous decision.vi)That the Learned Trial Magistrate erred in law and fact by failing to appreciate the weight of evidence and submissions by the appellant herein and put more weight on the respondents case thereby arriving at an erroneous decision.vii)That the Learned Trial Magistrate erred in law and fact in by failing to appreciate and understand the principles governing distribution of deceased estates that equitable sharing/distribution does not entail or amount that each beneficiary must share each party in equal share in disregard to the size or the practicality of such distribution thereby arriving at an erroneous decision.viii)That the Learned Trial Magistrate erred in law and fact by failing to appreciate that his decision would render or cause prejudice to the appellant and his family who have occupied plot no 2636 for periods exceeding 30 years, would cause demolition of properties, duly constructed house most of which were constructed during the lifetime of the deceased whilst two other properties much bigger that the suit plot existed and are available for distribution.ix)That the Learned Trial Magistrate erred in law and in principle by not visiting the scene and come up with an independent practical sharing out formula of the estate and the consequence of his decision whether it would be practical or justified hereby rendering an erroneous decision. Back ground. 3.The deceased died intestate and was survived by the following children:-i)Keziah Nyambura Wakaba.ii)Samuel Mbiriri Wambui.iii)Daniel Kagangi Wambui.iv)Margaret Wangari Wambui.v)Simon Kuria Wakaba. 4.The estate of the deceased comprised of the following properties:-i)Gitambaya Plot No. 2636 – 1/8 acres.ii)Plot No. 1170- ¼ acre.iii)Plot No. 3231. 5.The Trial Learned magistrate upon hearing the parties herein entered judgment in the following terms:-a)Gitambaya plot No. 2636 – to be shared equally among all the beneficiaries.b)Plot No. 1170- to be sold and be distributed equally among all the beneficiaries.c)Plot no. 3231 –to be shared equally among all the beneficiaries. 6.The case proceeded by way of viva voce evidence, and a judgment delivered which is subject of this appeal. 5.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] 6.In SELLE and Another -vs- Associated Motor Boat Company Ltd & Others [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.” 7 .Likewise in Gitobu Imyanyara & 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.” 8.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 of 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. Evidence. 9.The protestor’s evidence was that he lives on land parcel 2636, and that no one lives on land parcel 1170 and 3231. That plot no. 2636 which was given to him by his mother. That the respondents have never lived on this parcel of land which he, the appellant ha extensively developed. That he raised money through a fund raising which he had organized to the exclusion of his siblings to develop the land. That after the construction of the timber houses, he proceeded to build a permanent house on the same plot. He produced exhibits 1-9, being photographs of the developments on the pot of land. 10.He went on to state that the respondents had not helped him in any way to put up the houses, and that he had lived on the land for a period of 29 years. That the respondents who have never lived on the land had gained interest in because they had learned that the government wanted to acquire the land. 11.In cross examination, the witness stated that he commenced developments on the land in 2001, while the mother passed on in 1996. He did not have any objections to plot no. 1170, measuring ¼ acre being sold and the proceeds sub dived equally. He also conceded to the fact that plot no. 3231 could be divided equally among the beneficiaries of the deceased. 12.The admistrator/ respondent on her part stated that at no point in time did she hear her mother giving the land parcels to the appellant. She also confirmed that the houses on land parcel 2636 were constructed using funds from a fundraiser conducted to assist her mother. Her evidence was supported by Mwaura Wangui, who stated that the houses on land parcel 2636 were constructed using funds raised during a fund raising held to help the deceased. He could not tell how much money was expended in building the five rooms that he was engaged to build by the church. He did not make reference to the main house that is said to be on the land. He also stated that the appellant was the first one to occupy the land, since the other children of the deceased were very young. 13.She conceded to the fact that there was a main house that had been constructed on land parcel 2636, though her explanation was that they conducted a second fund raising. She in cross examination admitted that it was the appellant who connected electricity to plot no. 2636. Her evidence was that she lives in rental housing, and further told the court that plot no. 2636 had a higher valued compared to the other properties. Analysis and Determination 14.I have carefully considered this memorandum of appeal, the record of proceedings before the lower court as well as the written submissions filed by the appellant and the respondents. The properties that form the estate of the deceased have been ascertained and not in dispute. The beneficiaries of the deceased have been outlined, and from the evidence on record, are in consensus that they are all entitled to share the deceased estate. 15.The issue for determination is;-i)What is the most equitable mode of distribution, bearing the circumstances of the case? 16.Plot No. 1170. This plot measures ¼ and the beneficiaries are in agreement that it cannot be sub divided further, and should therefore be sold and the proceeds sub divided between the beneficiaries. 17.Plot no. 3232. The beneficiaries are in agreement that the plot can be practically distributed and further subdivided among the beneficiaries of the deceased. 18.Plot no. 2636. This plot seems to be at the centre of controversy between the parties herein. From the evidence presented in this case, it is not in dispute that there were five rooms that there build trough a fund raising that was conducted by the church in aid of the deceased. This fact was alluded to by all the witnesses, and particularly Mwaura Wangui, who stated that he was personally engaged in the construction of the five rooms. 19.The administrator also confirmed that there is a permanent house on the said land parcel. This is supported by the evidence of the appellant, who produced photographs of the main house. The appellant stated that he is the one who constructed the house. Though the administrator stated that there was a 2nd fund raising that was conducted to build this house, no evidence was called to support this allegations. 20.The evidence on record is that none of the parties live on plot number 2636, apart from the appellant who according to the administrator, connected electricity to the land.one can thus safely state that it appears that it is the appellant who live on the land parcel, and that he constructed the main house. 21.In an attempt to equally distribute the deceased’s estate among the beneficiaries, many at times a party may not agree with the court’s mode of distribution. In the case of Anne Nyambura Ndungu v Beatrice Wangari Ndungu & 2 others [2021] eKLR the court of appeal stated as follows:‘Having reconsidered the record and the circumstances surrounding this matter, we wish to point out first and foremost, that succession matters, though deceptively a person dies intestate leaving behind many properties and many beneficiaries, and sometimes different houses as is the case here. It will always be difficult to distribute the properties “equally” and with scientific precision because different properties will have different sizes and different economic values. Section 40 of the Law of Succession Act is not a magic pill which can be applied to resolve all issues pertaining to distribution of a deceased person’s estate. In a as much as section 40 LSA talks of “Equal Shares” the distribution must also be equitable. Where the parties themselves are unable to agree on the mode of distribution, it is left to the court to do the distribution based purely on the documents presented to the court.It is highly unlikely that the court would arrive at a mode of distribution that will be acceptable to all the beneficiaries. In this case, we are persuaded by the fact that following the death of the deceased, the principal parties sat, discussed the way forward and arrived at some kind of agreement which they reduced into writing, appended their signatures and filed in court. We appreciate the fact that the third respondent appears to have withdrawn her consent and subsequently denounced the agreement, hence the trial court’s reluctance to endorse or adopt the same. We have keenly pondered on this issue and come to the conclusion that there is no guarantee that any other mode of distribution dictated by this court will be better, or more equitable than that presented in that document.’ 22.Guided by the above cited authority and the circumstance of the case before court. I find that this is one of the cases where parties have not been able to agree on the best way to distribute the estate of the deceased. Though the admistrator states that plot No. 2636 was more valuable that the other two properties, I find that no valuation report was presented before the court in respect of the value of the plots. 23.Secondly, it was also submitted that it is not practical to sub divide plot 2636 further owing to the size of the land. That any further subdivision would lead to demolition of permanent houses occupied by the appellant and his children. 24.Since it is not in dispute that the appellant has resided on this parcel for close to 29 years, and that none of the other siblings have lived on the land, it would only be fair and just that he be allowed to retain the said land parcel, and continue residing on the same land. Further, owing to the fact that he is benefiting from the 5 wooden structures, it would only be fair that he be excluded from inheriting the other parcels of land, which should be shared out between the remaining siblings. 25.I find that the appeal partially succeeds and I hereby order that the Grant issued to Keziah Nyambura Wakaba be confirmed in the following terms:-a)Gitambaya plot No. 2636 be inherited by Samuel Mbiriri Wambui, solely.b)Plot No. 1170- to be sold and be distributed equally among the following beneficiaries.i)Keziah Nyambura Wakaba.ii)Daniel Kagangi Wambui.iii)Margaret Wangari Wambui.iv)Simon Kuria Wakaba.c)Plot no. 3231 –to be shared equally among all the following beneficiaries.i)Keziah Nyambura Wakaba.ii)Daniel Kagangi Wambui.iii)Margaret Wangari Wambui.iv)Simon Kuria Wakaba. 26.This being a family dispute, each party shall bear the costs of the appeal. DELIVERED, DATED AND SIGNED ON THIS 8TH DAY JULY, 2026.JUDGEMENT DELIVERED THROUGH MICROSOFT TEAMS ONLINE PLATFORM.MARTHA MUTUKU.JUDGE.In the presence of:-Court Assistant- Mr. Kibet.Mr. Kanyi for the Appellant.N/A for the Respondent.