https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8986

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT KIAMBU** **CIVIL FAMILY APPEAL NO. E034 OF 2022** **IN THE ESTATE OF GEORGE WAIRERE GATORO** **SAMUEL NJOROGE WAIRERE …………...................APPELLANT** **-VERSUS-** **GEOFFREY NGUGI WAIRERE…………............1ST RESPONDENT** **JEMIMAH NJERI WAMAE…………………………2ND RESPONDENT** **(*Being an appeal against the Ruling of Hon. A.R Ireri- PM delivered on 18th January 2013 in Limuru Magistrates Succession Case No. 98 of 2009)*** **JUDGMENT** 1. This appeal arises from the Ruling of Hon. A.R. Ireri, Principal Magistrate, delivered on 18th January 2013 in Limuru Magistrate’s Succession Cause No. 98 of 2009. The proceedings before the lower court were commenced by way of a Petition for Grant of Letters of Administration Intestate dated 20th August 2009 filed by Samuel Njoroge Wairere (the Appellant herein) in respect of the estate of the late George Wairere Gatoro (deceased), who died intestate on 16th July 1986. 2. Following the filing of the petition, the Respondents lodged an Answer to Petition for Grant of Letters of Administration dated 25th September 2009, opposing the petition on the ground that the Petitioner had petitioned for the grant without their consent. In the alternative, they prayed that the grant be issued jointly to them and the Petitioner. Upon consideration of the pleadings, the trial court issued a Grant of Letters of Administration Intestate on 16th November 2010 to Samuel Njoroge Wairere, Geoffrey Ngugi Wairere and Jemimah Njeri Wamae as joint administrators of the estate. 3. Subsequently, Samuel Njoroge Wairere, in his capacity as one of the administrators, filed a Summons for Confirmation of Grant dated 11th October 2011 proposing, inter alia, that Land Parcel No. Karai/Gikambura/573 be distributed equally amongst the beneficiaries, with each beneficiary receiving 0.202 hectares. Dissatisfied with the proposed mode of distribution, David Mugo Ngugi Wairere, on his own behalf and on behalf of the other beneficiaries, filed an Affidavit of Protest dated 18th October 2011 proposing an alternative mode of distribution as follows: 4. Alice Mugure Ngugi 0.138Ha 5. Samuel Njoroge Wairere 0.145Ha 6. Jemimah Njeri Wamae 0.276Ha 7. David Mugo Ngugi 0.276Ha 8. Stephen Mbugua Ngugi 0.276Ha 9. Geoffrey Ngugi Wairere 0.304Ha 10. Upon hearing the protest, the learned trial magistrate delivered a ruling on 18th January 2013 allowing the protest and adopting the proposed mode of distribution. The grant was consequently confirmed and a Certificate of Confirmation of Grant was issued on 26th February 2013. The certificate, however, reflected only two administrators, namely Jemimah Njeri Wamae and Geoffrey Ngugi Wairere. Subsequently, on 10th December 2018, the grant was rectified to include Samuel Njoroge Wairere as a co-administrator, while maintaining the mode of distribution adopted by the court in its ruling of 18th January 2013. 11. Aggrieved with the Ruling dated 18th January 2013 the Appellant preferred this appeal which is based on the following grounds: 12. **THAT the learned trial magistrate erred in law and fact by disregarding the evidence presented by the Appellant, which was crucial to the case.** 13. **THAT the learned magistrate erred in law and fact by failing to consider the Appellant’s Replying Affidavit, submissions and the case law file in its entirety, and instead relied on extrinsic factors’ which resulted in prejudice against the Appellant.** 14. **THAT the learned magistrate erred in law and fact by dismissing the Appellant’s application for equal distribution and allowing the protester’s protest dated 18th October 2011 which culminated in the unequal distribution of the estate to the beneficiaries to the detriment of the Appellant.** 15. **THAT learned magistrate erred in law and fact by failing to distribute the estate equally as per the requirements of the Law of Succession Cap 160 Laws of Kenya.** 16. **THAT learned magistrate erred in law and fact by distributing the estate without consent of all beneficiaries** 17. **THAT the learned trial magistrate court misdirected itself and made conclusions that were not supported by the facts on record and failed to make findings based on the evidence presented** 18. **The Honourable court erred in law and fact in failing to find that the grant and confirmation of grant were obtained by means of untrue allegation of facts essential in point of law to justify the grant** 19. **The Ruling was against the evidence presented on record, and as such, it cannot stand.** 20. The appeal was canvassed by way of written submissions. The Appellant submitted that the learned trial magistrate erred in law and fact in confirming the grant and adopting a mode of distribution that resulted in unequal allocation of the estate to the detriment of the beneficiaries. 21. The Appellant submitted that the deceased died intestate and that a grant of letters of administration intestate was issued on 16th November,2010 in favour of Samuel Njoroge Wairere, Geoffrey Ngugi Wairere, and Jemimah Njeri Wamae. That on 11th October 2011, the Appellant filed a summons for confirmation of grant proposing equal distribution of the estate among all the surviving children. 22. He stated that on 18th October 2011, the Respondents filed a protest opposing the Appellant’s proposed equal distribution and instead proposed an alternative mode of distribution. He contended that the trial court failed to properly consider the Appellant’s proposal and instead adopted the Respondents’ proposed distribution. It was further submitted that the Appellant also filed an affidavit of protest dated 18th June 2015 opposing the proposed distribution, which was neither heard nor determined by the trial court. 23. The Appellant submitted that the ruling confirming the grant was delivered on 18th January 2013, whereby the trial court adopted the Respondents’ proposed mode of distribution, resulting in an unequal distribution of the estate. He further contended that the confirmation proceedings were conducted without affording the Appellant a hearing, as he was incarcerated at the material time and was not served with hearing notices. 24. It was therefore the Appellant’s submission that the confirmation of grant was conducted in breach of Section 38 of the Law of Succession Act, the Probate and Administration Rules, and the Appellant’s right to a fair hearing under Article 50(1) of the Constitution. Counsel urged the Court to set aside the confirmation of grant and order redistribution of the estate equally among the beneficiaries. 25. On the applicable law, Counsel relied on ***Rono v Rono & another [2005] eKLR*** for the principle that distribution of intestate estates should be equal among beneficiaries unless there is a valid justification for deviation. It was submitted that no justification was provided for the unequal distribution adopted by the trial court. 26. Further reliance was placed on ***JMK v MWM & another [2015] eKLR*** for the proposition that a decision made without affording a party a hearing is a nullity. Counsel also cited ***In re Estate of M’Ngarithi M’Miriti (Deceased) [2017] eKLR*** to support the argument that confirmation of a grant in the face of an unresolved protest amounts to a denial of due process 27. Finally, Counsel referred to ***Matheka v Matheka [2005] eKLR*** in support of the position that a grant obtained or confirmed in breach of procedural requirements and without full participation of all beneficiaries is liable to revocation under Section 76 of the Law of Succession Act. 28. The Appellant therefore urged this Court to allow the appeal, set aside the ruling delivered on 18th January 2013, revoke the Certificate of Confirmation of Grant issued pursuant thereto, and order that the estate be redistributed equally among the beneficiaries of the deceased. 29. The Respondents, on the other hand, opposed the appeal and submitted that the trial court properly considered and determined the issue of distribution of the estate in its ruling delivered on 18th January 2013. 30. It was their case that the matter was heard before the Magistrate’s Court at Kiambu, where family deliberations and the decision of elders on the mode of distribution were considered in the presence of the Appellant. The Respondents further contended that the Appellant participated in the process and appended his signature to a declaration of consent on distribution, which formed the basis upon which the trial court adopted the impugned mode of distribution. 31. The Respondents further submitted that pursuant to the confirmed grant, the estate comprising land parcel Karai/Gikambura/573 was subsequently subdivided and titles issued to the respective beneficiaries on 24th February 2021. It was their position that the Appellant has never moved the court for revocation of the grant issued on 16th November 2010 and confirmed on 30th November 2018. Reliance was placed on the decision in ***In re Estate of Ithara Ibutu (Deceased) (2009) eKLR*,** where the court cautioned that setting aside orders made many years earlier is not only inequitable but also prejudicial to beneficiaries who have taken possession and developed their respective portions of the estate. **ANALYSIS AND DETERMINATION** 1. The court has considered the record of appeal, the pleadings and original record of the proceedings as well as the submissions by the respective parties. This is a first appeal. The Court of Appeal for East Africa set out the duty of the first appellate court in **Selle v Associated Motor Boat Co. [1968] EA 123** in the following terms: **“An appeal from the High Court is by way of re-trial and the Court of Appeal is not bound to follow the trial judge’s finding of fact if it appears either that he failed to take account of circumstances or probabilities, or if the impression of the demeanour of a witness is inconsistent with the evidence generally.** **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 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 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 in the case generally.”** 1. An appellate court will not ordinarily interfere with a finding of fact made by a trial court unless such finding was based on no evidence, or it is demonstrated that the court below acted on wrong principles in arriving at the finding it did. See **Ephantus Mwangi & Another vs Duncan Mw** 2. In light of the foregoing principles, the following issues fall for determination: 3. Whether the Appellant was denied the right to be heard in the proceedings leading to confirmation of the grant; 4. Whether the learned magistrate erred in law and fact in allowing the protest and adopting the mode of distribution of the estate; 5. Whether this Court is justified in interfering with the exercise of discretion by the trial court. **Issue No. 1: Whether the Appellant was denied the right to be heard** 1. The Appellant contends that he was not served with hearing notices and that he was incarcerated at the material time, and therefore did not participate in the proceedings leading to the confirmation of the grant. 2. The record, however, shows that the Appellant himself filed a Summons for Confirmation of Grant dated 11th October 2011 proposing equal distribution of the estate. Upon receipt of the same, four beneficiaries filed an Affidavit of Protest dated 18th October 2011 contesting the proposed distribution and setting out an alternative mode of distribution. 3. The protest was set down for hearing on 23rd October 2012. The record shows that the Appellant was represented at the hearing by learned counsel, Muhuhu & Co Advocates, who appeared on his behalf. The proceedings culminated in the ruling delivered on 18th January 2013. In light of the foregoing, it is evident that the Appellant was not excluded from the proceedings and was duly represented during the determination of the protest. 4. The Appellant has relied on a document dated 3rd August 2018 indicating that he was in remand custody. However, that document post-dates the ruling by approximately five years and does not demonstrate that the Appellant was in custody during the hearing of the protest or at the time the ruling was delivered. 5. In the circumstances, this Court finds that the Appellant was not denied an opportunity to be heard in the proceedings leading to the confirmation of the grant. **Issue No. 2: Whether the learned magistrate erred in allowing the protest and adopting the mode of distribution** 1. The Appellant’s contention is that the learned magistrate ought to have ordered equal distribution of the estate in accordance with Section 38 of the Law of Succession Act. 2. It is not disputed that the deceased died intestate and was survived by his children. Section 38 of the Law of Succession Act provides that the net intestate estate shall be equally divided among the surviving children. However, the application of the principle of equality must be considered in light of the circumstances of each case. 3. In **Rono v Rono & Another [2005] eKLR**, the Court of Appeal held that equality is the starting point in the distribution of an intestate estate, but the court may depart from strict equality depending on the circumstances presented before it. 4. In the present case, the learned magistrate considered the competing proposals placed before the court, including the protest dated 18th October 2011. The record shows that the court exercised its discretion upon consideration of the material before it. 5. The Appellant has not demonstrated that the trial court considered irrelevant considerations, ignored relevant material, or misapplied the law in adopting the impugned distribution. Accordingly, there is no basis for this Court to interfere with the exercise of discretion by the trial court on that ground. **Issue No. 3: Whether the Appellant has established grounds for interference with the ruling** 1. It is further noted that the ruling was delivered on 18th January 2013, the grant was confirmed on 26th February 2013, and subsequently rectified on 10th December 2018. The estate was thereafter distributed and titles issued to the respective beneficiaries on 24th February 2021. 2. The present appeal was filed in 2022, nearly nine years after the impugned ruling and after the estate had already been substantially administered. 3. In the absence of proof of fraud, concealment of material facts, breach of due process, or other fundamental procedural irregularity in the proceedings culminating in the Ruling of 18th January 2013, this Court finds no basis to interfere with the decision of the trial court. **DISPOSITION** 1. The appeal lacks merits and is hereby dismissed. 2. The Ruling of the learned trial Magistrate delivered on 18th January,2013 is hereby upheld. 3. In the circumstances of this case I direct that parties shall bear their own costs of the appeal **DATED, SIGNED AND DELIVERED AT NAIROBI THIS 26TH DAY OF JUNE, 2026 VIRTUALLY THROUGH THE MICROSFT TEAMS PLATFORM.** **KENNEDY KANDET** **JUDGE** **IN THE PRESENCE OF:** **KIHARA FOR THE APPELLANT** **MS MUCHANGI HB FOR NGUGI FOR THE RESPONDENT** **COURT ASSISTANT:AGGREY OCHIENG**