[2023] KEHC 26980 (KLR)

Wachira v Theuri & 10 others (Civil Appeal E045 of 2021) [2023] KEHC 26980 (KLR) (24 October 2023) (Judgment)

Neutral citation: [2023] KEHC 26980 (KLR)

Republic of Kenya

In the High Court at Kerugoya

Civil Appeal E045 of 2021

FN Muchemi, J

October 24, 2023

Between

William Wachira

Protestor

and

Lewis Wahome Theuri

1st Respondent

Ephantus Wanyumba Theuri

2nd Respondent

Mwangi Stephen

3rd Respondent

and

Josephine Njeri Maina

1st Protestor

Ann Wanjiku Waweru

2nd Protestor

Grace Gathoni Mungai

3rd Protestor

Ephantus Wanyumba

4th Protestor

Alfred Kigano Maina

5th Protestor

Kelvin Kigano

6th Protestor

Ann Wamaitha Theuri

7th Protestor

Stanley Mwigereri Wanyumba

8th Protestor

((Being an Appeal from the Judgment of Hon. M. Kivuti (SRM) delivered on 30th September 2021 in Baricho SPM Succession Cause No. 100 of 2016 In the Matter of the Estate of Stephenson Theuri Wanyumba)

Judgment

Brief facts 1. This appeal arises from the judgment of Baricho Senior Resident Magistrate in SPM Succession Cause No. 100 of 2016 where as the court distributed the estate of the deceased in its judgment dated 30th September 2021.

2. Dissatisfied with the court’s decision, the appellant lodged this appeal citing 7 grounds summarized as follows:-a.The learned magistrate erred in law and fact in distributing land parcel number KIINE/SAGANA/1828 to Mercy Gathoni Theuri who is deceased;b.The learned trial magistrate erred in law and in fact in distributing land parcel number KIINE/SAGANA/1816 to the 2nd – 7th respondents whereas the said parcel of land did not constitute part of the estate of the deceasedc.That the learned trial magistrate erred in fact and in law in disregarding the evidence adduced by the appellant in respect to land parcel numbers KIINE/SAGANA/386 and Plot Number 4C Sagana;d.That the learned trial magistrate erred in law and in fact in disregarding the evidence and interests of the 2nd, 3rd and 4th respondents in relation to land parcel number KIINE/SAGANA/1870;e.That the learned trial magistrate erred in law and in fact in disregarding the interests of the other beneficiaries in distributing land parcel number KIINE/SAGANA/1817.

3. Parties put in written submissions to dispose of the appeal.

Appellant’s Submissions 4. The appellant submits that the trial court erred in distributing land parcel numbers KIINE/SAGANA/386 and KIINE/SAGANA/1828 to Mercy Gathoni Theuri who was already deceased. The appellant argues that the parties indicated in their pleadings that the deceased married four wives who are all deceased, including the 4th wife Mercy Theuri.

5. The appellant further submits that the trial court erred in distributing land parcel number KIINE/SAGANA/1816 which did not form part of the estate of the deceased as the same had already been transferred to Gladys Wambui Theuri on 30th May 1989.

6. The appellant further submits that he testified that he was a dependant of the deceased and very close to him with the deceased referring to him as a son. The appellant further testified that the deceased gave him land parcel numbers KIINE/SAGANA/386 and Plot Number 4C Sagana during his lifetime. Furthermore, the other protestors and petitioner confirmed that the appellant lived with the deceased since his childhood and that he was a dependant of the deceased. The appellant relies on the case of Beatrice Ciamutua Rugamba vs Fredrick Nkari Mutegi (2016) eKLR and submits that the trial court failed to take into account that he lived with the deceased and that the deceased gave him the said land parcels of land during his lifetime.

7. The appellant argues that the trial court failed to take into account the interests of the 2nd – 7th protestors when distributing land parcel number KIINE/SAGANA/1870 as the said protestors occupy half share of the said land. Instead, the trial court distributed the said property to Beatrice Wanjiku Mbugua, Margaret Muthoni Hosea, Lydia Wamaitha Theuri and Christopher Macharia Theuri to hold in trust for the twenty three (23) children.

8. The appellant states that the trial court distributed land parcel number KIINE/SAGANA/1817 to be jointly owned by the 9th protestor and James Gikuuri despite the fact that the deceased had bequeathed the said land to Wilson Karingithi Theuri. Thus the appellant argues that it would be in the interest of justice that land parcel number KIINE/SAGANA/1817 to be jointly owned by the 9th protestor and James Gikuuri to hold in trust for themselves and their siblings Charity Njeri, Grace Gathoni and Jedida Njoki.

The 2nd, 3rd, 4th, 5th & 7th & 8th Protestors’/4th, 5th, 6th, 7th, 9th & 10th Respondents’ Submissions 9. The respondents submit that they are grandchildren of the deceased since their mother Gladys Wambui was one of the daughters of the deceased. The respondents submit that they lived with the deceased and in 1981 the deceased allocated to them half share of land parcel number KIINE/SAGANA/1870 which they have been in possession of till date. The respondents rely on Section 42 of the Law of Succession Act and submit that the trial court did not consider the deceased’s wishes and proceeded to distribute the said parcel of land which measures approximately 0. 71 ha to Beatrice Wanjiku Mbugua, Margaret Muthoni Hosea, Lydia Wamaitha Theuri and Christopher Macharia Theuri to hold in trust for themselves and the rest of the twenty three children.

The 8thProtestor’s/ 10thRespondent’s Submissions 10. The 10th respondent submits that the trial court was correct in disregarding the evidence by the appellant in respect of land parcel number KIINE/SAGANA/386 and Plot No. 4C Sagana as he failed to prove that the deceased bequeathed the said parcels of land during his lifetime. Furthermore, the suit before Kerugoya Court in respect of land parcel number KIINE/SAGANA/386 was filed in 2012, long after the demise of the deceased and thus it was apparent that the appellant was being dishonest and selfish keeping in mind that some children of the deceased were not given any land. The 10th protestor agrees with the trial court that the allegation by the appellant that he was a grandson of the deceased has no bearing on the properties he is claiming for and thus the trial court was just and fair in excluding him from sharing the remainder of the estate. As such, the 10th respondent asks the court to dismiss the appeal.

Issue for determination 11. The main issue for determination is whether the appeal has merit.

The Law 12. Being a first Appeal, the court relies on a number of principles as set out in Selle and Another vs Associated Motor Boat Company Ltd & Others [1968] 1EA 123:“…..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.”

13. It was also held in Mwangi vs Wambugu [1984] KLR 453 that an appellate court will not normally interfere with a finding of fact by the trial court unless such finding is based on no evidence or on a misapprehension of the evidence; or where the court has clearly failed on some material point to take into account of particular circumstances or probabilities material to an estimate of the evidence.

14. Dealing with the same point, the Court of Appeal in Kiruga vs Kiruga & Another [1988] KLR 348, observed that:-“An appeal court cannot properly substitute its own actual finding for that of a trial court unless there is no evidence to support the finding or unless the judge can be said to be plainly wrong. An appellate court has jurisdiction to review the evidence in order to determine whether the conclusion reached upon that evidence should stand.”

15. Therefore this Court is under a duty to delve at some length into factual details and revisit the facts as presented in the trial court, analyse the same, evaluate it and arrive at its own independent conclusions, but always remembering and giving allowance for it, that the trial court had the advantage of hearing the parties.

Whether the appeal has merit. 16. The deceased herein died on 24th December 1992 and was survived by the following:- 1st Housea.Mina Wangui Theuri - wife (deceased)b.Grace Gathoni Theuri – daughterc.Gladys Wambui Theuri – daughter (deceased)d.Wilson Kangithi Theuri – sone.Priscillah Mumbi Kariuki – daughterf.Morrison Gikuru Theuri – son (deceased)g.Stanley Muriuki Theuri – sonh.Beatrice Wanyi Kumbugwa – daughteri.Godfrey Mwangi Theuri – son (deceased)j.Lewis Wahome Theuri – son

2nd Housea.Zeriba Konyu Theuri – wife (deceased)b.Joyce Wawira Maina – daughterc.Margaret Gathoni Hoseah – daughterd.Rosemary Mumbi Theuri – daughtere.Esther Njeri Theuri – daughterf.Millicent Warigia Mwangi – daughterg.Elizabeth Wanjiru Theuri – daughterh.Florence Wamartha Theuri – daughteri.Catherine Wangui Amos – daughterj.Ephantus Wanyumba Theuri – son

3rd Housea.Jedidah Njoki Theuri – wife (deceased)b.Joseph Mwangi Theuri – sonc.Violet Wangui Nguro – daughterd.Felix Wanyumba Theuri – sone.Roseline Wanjira Kungu – daughterf.Purity Wandia Theuri – daughterg.Joseph Maina Wandia – sonh.Harrison Wachira Theuri – soni.Wamaitha Theuri – daughterj.Muthoni Muhoro – daughter

4th Housea.Muthoni Theuri – wife (deceased)b.Mwangi Theuri – sonc.Julius Kimani Theuri – sond.Wanjiku Theuri – daughter (deceased)e.Christopher Macharia Theuri – sonf.Nelson Wanyumba Theuri – son (deceased)g.Peter Mburu Theuri – sonh.Mumbi Theuri – daughteri.Nyaguthii Theuri – daughterj.Wairimu Theuri – daughter

17. The court, on its own motion issued grant of letters of administration to Stanley Muriuki Theuri, Ephantus Wanyumba Theuri, Harrison Wachira Theuri and Mwangi Stephen on 9th November 2012. Upon application to be removed as a co-administrator, Stanley Muriuki Theuri was removed and Lewis Wahome Theuri was appointed a co-administrator. On 25th September 2018, one of the petitioners, Mwangi Stephen filed for summons for confirmation of grant and the same was contested by the protestors filing their respective protests. The matter proceeded by viva voce evidence and the trial court found that the available properties for distribution were as follows:-a.KIRIMUKUYU/THIU/283b.KIINE/SAGANA/386c.KIINE/SAGANA/1870d.Plot No. 4C Sagana

18. The court thus proceeded to distribute the estate as per her judgment dated 30th September 2021.

19. The appellant, aggrieved with the mode of distribution argues that land parcel number KIINE/SAGANA/1828 was distributed to Mercy Gathoni Theuri although she is deceased. I have perused the court record and noted that the 9th protestor filed his affidavit which stated that the deceased had on 26th August 1982 applied to the Mwea Land Control Board for consent to subdivide and later to transfer portions of his land resulting from KIINE/SAGANA/901 to fifteen (15) members of his family. The Mwea Land Control Board granted the requisite letters of consent on 15th September 1982. The transfers of the resultant parcels of land Kiine/Sagana were effected in favour of 12 out of the 15 named children leaving out Mercy Gathoni Theuri, Mwangi Stephen Theuri and Julius Kimani Theuri. The trial court noted that although the 9th protestor did not give oral evidence, the facts deposed in his affidavit were not disputed or controverted by any of the parties. I have perused the applications for consent of the Land Control Board and the letters of consent issued thereon. It is my considered view that the deceased expressed his intentions and effected the transfers to the beneficiaries as provided by the law in regard to L.R.No. KIINE/SAGANA/1817,1828,1829 and 1830. Once the said transfers were effected by the deceased in favour of the fifteen beneficiaries the deal was sealed in that ownership passed to the 15 children of the deceased. It was therefore wrong to include the said parcels of land as assets of the deceased available for distribution. The trial court noted in its judgement that the deceased had given out the parcels of land in accordance with his wishes and excluded them from the list of assets listed for distribution.

20. The appellant argued that the trial court erred in bequeathing L.R. Kiine/Sagana/1828 to one Mercy Gathoni Theuri, a daughter of the deceased now deceased. I do not see anything wrong with this aspect of distribution because Mercy was a beneficiary entitled to the share in her late father’s estate. The share of Mercy who is now deceased should be taken up by her children, if any, or the closest surviving relative in degree of consanguinity. The law under Section 74 of the Succession Act provides for review of the grant to take up the shares of the deceased beneficiary, if need be.

21. Having analysed the evidence and issues on ground one of the appeal, I find no merit in it.

22. On ground two of the appeal, the appellant argues that land parcel number KIINE/SAGANA/1816 did not form part of the estate of the deceased and thus should not have been distributed to the 2nd – 7th protestors. The court record shows that L.R.KIINE/SAGANA/1816 was a result of the sub division of L.R. KIINE/SAGANA/901 and was transferred to Gladys Wambui on 30th May 1989 during the lifetime of the deceased. A copy of the tittle in the name of Gladys Wambui theuri is in the court record. At the time of distribution of the estate, Gladys was deceased. The trial court allocated the said property to the 2nd -7th protestors as children of Gladys Wambui on grounds that they were entitled to benefit from their mother’s share in the estate.

23. The court may have overlooked the fact that title of L.R. Kiine/Sagana/1816 had already changed hands and it was not an asset of the deceased’s estate. The court ought to have removed the parcel of land from the estate and left it for the children of Gladys Wambui to file a Succession cause for their late mother’s estate.

24. On ground number three, the appellant states that the trial court erred in disregarding the evidence he adduced in respect to L.R.No. KIINE/SAGANA/386 and Plot No. 4C Sagana. The appellant testified that the deceased gave him land parcel number KIINE/SAGANA/386 in 1981 and he cultivates on the said property. He further stated that the said land is subject to a court case filed by Sagana Town Council CC 158 of 2012 where he is the defendant in the said case. The appellant further testified that in 1956, the deceased picked him from his mother’s matrimonial home to live with him. He further testified that the deceased also gave him Plot No. 4C Sagana. Upon perusal of the appellant’s testimony, it is evident that although he claims that the deceased bequeathed to him land parcels KIINE/SAGANA/386 and Plot No. 4C Sagana, he did not produce any evidence to support the claim. It is noted that the deceased in his lifetime gave the appellant land parcel number KIINE/SAGANA/1873 as evidenced by a copy of Certificate of Official Search annexed to the affidavit of the 8th protestor.There was no problem from the children of the deceased in deceased having given L.R.NO. KIINE/SAGANA/1873 to the appellant during his lifetime. Moreover, the suit pending in Kerugoya ELC Court in respect of L.R No. KIINE/SAGANA/386 was filed in the year 2012 which was long after the death of the deceased. The magistrate rightly observed that the assertions made by the appellant that he was like a son to the deceased and that he lived with the deceased since 1956 have no bearing to the distribution of the deceased’s estate. The appellant had already benefited from the deceased’s estate in way of a gift intervivos.

25. I have perused the grant and noted that although the judgement of the court gave the land to Gladys Wambui, the grant indicates that the land was bequeathed to her six (6) children to be registered jointly. This was irregular because the distribution was not supported by the record. In my considered view, the children of Gladys ought to file a succession cause in respect of the assets of their deceased mother.

26. On this 2nd ground of appeal, I find that the learned magistrate misdirected herself in bequeathing the property of a deceased person Glady’s Wambui to her children in another person’s succession proceedings contrary to the provisions of the Law of Succession Act. In my view, this ground has merit and the said distribution was a misdirection on part of the Magistrate.

27. On ground number four, the appellant contends that the learned magistrate disregarded the evidence and interests of the 2nd – 7th protestors in respect to land parcel number KIINE/SAGANA/1870. According to the appellant, the magistrate ought to have allocated L.R No. KIINE/SAGANA/1870 which measures approximately 0. 71 ha (1. 75 acres) to the 2nd – 7th protestors as they occupy half share of the said land. The 2nd – 7th protestors agree with the appellant and state that they lived with the deceased since 1981 and he allocated to them half share of land parcel number KIINE/SAGANA/1870 which they cultivate to date. The 2nd protestor testified that she is a daughter to Gladys Wambui and together with her siblings, that they lived with the deceased and cultivated the said land and further, that before her mother’s demise the 2nd protestor cultivated ¼ acre on the said property. On cross-examination, the 2nd protestor testified that her mother was given land L.R KIINE/SAGANA/1816 by the deceased and that land parcel was cultivated by many people. It is trite law that grandchildren can only inherit from their grandparents through their deceased parent but not directly from their grandparents’ estate over and above what their deceased’s parent’s share. Accordingly, the 2nd -7th protestors being children of Gladys Wambui are entitled to inherit their late mother’s land given to her by the deceased herein. It is my considered view that the 2nd -7th objector did not prove their claim on L.R. KIINE/SAGANA/1870. The magistrate did not misdirect herself in this aspect. The 4th ground of appeal has no merit.

28. On ground number five, the appellant argues that the trial court erred in distributing land parcel number KIINE/SAGANA/1817 to Stanley Mwigerei and James Gikuuri whereas the said property had been bequeathed to the late Wilson Karingithi Theuri. From the evidence on record, land parcel number KIINE/SAGANA/1817 was a result from the sub division of land parcel number KIINE/SAGANA/901. From the affidavit sworn by the 9th protestor, the deceased gave L.R No. KIINE/SAGANA/1817 to his son the late Wilson Karingithi Theuri who is the 9th protestor’s father. The deceased obtained the requisite consent of the Land Control Board and transferred the land to Wilson Karingithi. This land was not a part of the deceased’s estate and should not have been formed part of the assets available for distribution The children of the late Wilson Karingithi ought to file a succession cause to inherit their deceased father’s estate. The magistrate found that the 2nd, 3rd and 4th protestors did not satisfy the court on their claim in the deceased’s estate. The said protestors ought share L.R NO, KIINE/SAGANA/1816 that was given to their deceased mother by the deceased as he shared out his land during his lifetime. This 5th ground therefore lacks merit and accordingly fails.

29. In conclusion, I make the following orders:-a.That the order for distribution of the deceased’s estate in regard to L.R.NO.KIINE/SAGANA/386,forL.R.KIINE/SAGANA/1870, Kirimukyu/Thiu/283 and Plot No.4C Sagana are hereby upheld.b.That the orders distributing L.R.No.1816,L.R.No.1817, L.R.No.1828, L.R.No.1829 and L.R.No.1830 which did not form part of the estate of the deceased are hereby set aside.

30. A fresh grant to issue in regard to the distribution in order (a) in paragraph 29 herein.

31. This appeal is partly successful.

32. That each party to meet their own costs.

33. It is so ordered.

34. It is hereby so ordered.

DATED AND SIGNED AT KERUGOYA THIS 24TH DAY OF OCTOBER, 2023. F. MUCHEMIJUDGEJudgement delivered through video link this 24th day of October, 2023