https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12537

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA** **AT NYERI** **HIGH COURT SUCCESSION APPEAL CAUSE NO. E023 OF 2024** **MARY WANJIRU WAMBUGU.…………...…….…….APPELLANT** **VERSUS** **PHILLYS WANGUI WAMBUGU………………….RESPONDENT** **JUDGEMENT** 1. The Appellant **MARY WANJIRU WAMBUGU** has filed this appeal challenging the judgment, decision and orders made by the Lower Court on **27th September 2024** in **Othaya MC SUCC E139 of 2021**. In the Memorandum of Appeal dated **22nd October 2024**, the Appellant sought the following orders:- **“1. The decision of Hon. M. N. Munyendo PM be set** **aside.** **2. The estate of the deceased be distributed equally between the houses of the widows, with actual size being clearly identified.** **3. Costs of the Appeal be awarded to the Appellant.”** 2. The Respondent **PHILLYS WANGUI WAMBUGU** opposed the appeal. The appeal was canvassed by way of written submissions. The Appellant filed the written submissions dated **5th September 2025** whilst the Respondent relied upon her written submissions dated **3rd March 2026**. **BACKGROUND** 3. This succession cause relates to the estate of the late **ERNEST** **WAMBUGU NDIRANGU** (hereinafter ‘**the Deceased’**) who died intestate on **31st December 2006**. A copy of the Death certificate Serial Number **04487** was filed in Court on **15th October 2021**. 4. The Deceased was a polygamous man who had two wives. He was survived by the following:- **First House** 1. **Ann Wambui Wambugu - Wife** 2. **Milica Muthoni Kimani - Daughter** 3. **Phillys Wangui Wambugu - Daughter** **Second House** 1. **Mary Wanjiru Wambugu - Wife** 2. **Simon Ndirangu Wambugu - Son** 3. **John Mwangi Wambugu - Son** 4. **Joseph Ndegwa Wambugu - Son** 5. **Charles Muchiri Wambugu - Son** 5. The estate left behind by the deceased comprised of the following assets **(a) Land, Title Number CHINGA/GIKIGE/1255 – measuring approximately 1.01. Hectares.** **(b) Land title Number NYANDARUA/NDARAGUA BLOCK 1 (KAHUTHA) 929 - measuring approximately 1.21 Hectares.** **(c) Title Number NYANDARUA/NDARAGUA BLOCK 1 (KAHUTHA) 850 – measuring approximately 0.405 Hectares.** 6. Following the demise of the deceased Grant of Letters of Administration Intestate was on **14th February 2022** made to **Mary** **Wanjiru Wambugu** (widow) and **Phillys Wangui Wambugu** (daughter). 7. The 2nd Administrator **Phillys Wangui Wambugu** (the Respondent) then filed a Summons for Confirmation of Grant dated **8th September** **2022**. In her summons the Respondent proposed that the estate be distributed as follows:- **“(a) L.R CHINGA/GIKIGIE/1255 to go to Mary Wanjiru Wambugu.** **(b) L.R CHINGA/GIKIGIE/146 to be shared among:** **(i) Mary Wanjiru Wambugu** **(ii) Ann Wambui Wambugu** **(iii) Milica Muthoni Kimani; to the portions as marked out on the ground occupations and as the deceased gave to them now as it is on the ground indicated in the annexed sketch marked M1.** **(c)** **L.R. NYANDARUA/NDARAGUA BLOCK 1 (KAHUTHA) 929 to go to Milica Muthoni Kimani** - given by our father. **(d) L. R. NYANDARUA/NDARAGUA BLOCK 1 (KAHUTHA) 850** **to go to Mary Wanjiru Wambugu absolutely**.” 8. The Protestor who is the second wife of the Deceased then filed an Affidavit of Protest dated **5th October 2022** opposing the proposed mode of distribution of the estate. The position of the Protestor was that all the assets comprising the estate should be distributed ‘equally’ between all the beneficiaries. 9. The Protest was heard in the lower court and vide the judgment delivered on **27th September 2024** the trial court dismissed the protest and upheld the mode of distribution as proposed by the Respondent. 10. Being aggrieved by this decision the Appellant filed this appeal which is premised upon the following grounds:- **1) That the learned trial magistrate erred in law and in fact by confirming the grant upon a grossly unjust proposal on distribution of the estate of the deceased.** **2) That the learned trial magistrate erred in law and fact by generally distributing the estate of the deceased without identification of shares for each beneficiary.** **3) That the learned trial magistrate erred in law and fact by disinheriting the house of the Appellant.** **4) The learned trial magistrate erred in law and in fact by** **relying on a defective sketch without any conclusive** **identification of the sizes of the parcels of land.** **5) The learned trial magistrate erred in law and in fact by ignoring the status quo of the estate particularly the tea bushes and trees at the distribution stage.** **6) The learned trial magistrate erred in law and in fact by arriving at a decision that is contrary to the evidence on record.** **7) The learned trial magistrate erred in law and in fact by** **misdirecting himself that the deceased had already expressed his wishes on the distribution of the estate.** **8) That the learned trial magistrate erred in law and in fact by ignoring the evidence and submissions of the Appellant.”** **ANALYSIS AND DETERMINATION** 11. I have carefully considered this memorandum of appeal as well as the record of Appeal filed in this matter. 12. 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 conclusion [**see Peters -vs- Sunday post limited [1958] E. A. 424**] 13. In **SELLE** and **Another -vs- ASSOCIATED MOTOR BOAT COMPANY LTD & Others [1968] 1 E.A 123** it was stated that **“An appeal to this court from 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 [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 particular circumstances or probabilities materially to estimate the evidence.”** 14. Likewise in **GITOBU IMANYARA & 2 Others -vs- ATTORNEY GENERAL [2016] eKLR,** the Court of Appeal stated as follows:- **“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.”** 15. It is not in dispute that the deceased in this cause passed away on **31st** **December 2006** and that he died intestate. The parties are all in agreement that the deceased was a polygamous man who had two (2) wives. The names and identities of the beneficiaries to the estate are not disputed. The only dispute revolves around the mode of distribution of the estate. 16. Given that the deceased was a polygamous man **Section 40** of the **Law of Succession Act** **Cap 160 Laws of Kenya** would be applicable. **Section 40 (1)** reads as follows:- **“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 the children in each house, but also adding any surviving wife 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 section 35 to 38.”** 17. The import of **Section 40(1)** is that there ought to be equal distribution of the deceased’s assets among the children adding each surviving spouse as an additional unit. The division of the net estate shall in the first instance be among the houses according to the number of children in each house. The surviving wife is to be considered as additional unit to the children. 18. In Re Estate of **John Musambayi Katumanga - (Deceased) [2014] eKLR Musyoka J**. stated as follows; “**Section 40 was not designed for the circumstances** **of the instant estate, but it would appear more appealing for the purpose of the distribution of the said estate than Section 35. The spirit of Part V, especially Sections 35, 38 and 40 is equal distribution of the intestate estate amongst the children of the deceased**. **There have been debates on whether the distribution should be equal or equitable. My reading of these provisions is that they envisage equal distribution for the word used in Sections 35 (5) and 38 is “equally” as opposed to “equitably”. This is the plain language of the provisions. The provisions are in mandatory terms – the property “shall …..be equally divided among the surviving children.” Equal distribution is envisaged regardless of the ages, gender, and financial status of the children.”** 19. Further **Hon. Justice (Prof) Ngugi** (as he then was) in **re Estate of Kamau Rungathu (Deceased) (Succession Cause 479 of 1994) [2022] KEHC 14417 (KLR) (31 October 2022 (Judgment)** was of the view that **section 40 of the Law of Succession Act** is meant to ensure the equitable distribution of the estate, and he held as follows: **“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. 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. 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 persons’ estate. In as much as section 40 LSA talks of “Equal Shares,” the distribution must also be equitable.”*** **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.” [Own Emphasis]** 20. The duty of the Probate Court is to ensure that there is ‘**equitable’** distribution of the net estate of the deceased in conformity with the rules of natural justice and taking into consideration circumstances of each beneficiary. This is different from ‘**equally’** which envisages having the same in quantity, degree or value. 21. In **Mary Rono v Jane Rono & Another [2005] eKLR**, **Omolo JA** , had this to **“My understanding of that section is that while the net** **intestate estate is to be distributed according to houses, each house being treated as a unit, yet the Judge doing the distribution still has a discretion to take into account or consider the number of children in each house. If Parliament had intended that there must be equality between houses, there would have been no need to provide in the section that the number of children in each house be taken into account. Nor do I see any provision in the Act that each child must receive the same or equal portion…….”** 22. Similarly in **re Estate of M’ Ramare Nkunga (Deceased) [2018] eKLR, F. Gikonyo** stated: **“My view is this. Section 40 of the Law of Succession Act is an existing law which must be read with such alterations, adaptations, qualifications, and exceptions necessary to bring it into conformity with the** **Constitution. See section 7 of the Transitional and** **Consequential Provisions, Sixth Schedule of the Constitution.”** 23. Therefore **Section 40** of the **Law of Succession Act** must be applied based on the peculiar facts and circumstance of each case. It cannot be applied in a blanket manner. **Kanyi Kimondo J.** held in re **Estate of Githumbi Kanyari (Deceased) (Succession Appeal 2 of 2017) [2022] KEHC 12673 (KLR) (29 August 2022) Judgment),** that: **“Section 40 does not however, take away the discretion of the court to distribute the estate fairly. By didn’t of sections 26, 27, 28, 29 and 35 of the Act, as read together with Rule 73 of the Probate and Administration Rules, the court has been clothed with complete discretion to provide for dependents or beneficiaries.”** 24. I have carefully perused the judgment dated **27th September 2024**. The learned trial magistrate was careful to take into account the circumstances of the various beneficiaries. The court noted that ‘**Milicah’** (the deceased’s daughter) and **Ann Wambui** (the 1st Wife) had been in occupation of **Chinga Gakige** where they were cultivating tea. The parties were in agreement that during his lifetime the deceased had settled the two wives and that the families took up occupation of the portions allocated to them and indeed have been living peacefully. The Protestor herself did concede to the fact that the deceased had settled the two families in their respective portions before he died. 25. The allegation by the Appellant that her house (2nd House) had been disinherited is not true at all. The distribution as set out by the trial court includes the 2nd wife **Mary Wanjiru** who has been allocated three (3) properties. 26. I am in agreement with the trial court that there is no reason and would serve no purpose to upset the status quo. Accordingly I find no merit in this protest. The same is dismissed in its entirety. This being a family matter each side will meet their own costs. **Dated in Nyeri this 31st day of July 2026** **……………………….** **MAUREEN A. ODERO** **JUDGE**