Erastus Gichingiri Muhoro v Gerishon Gichingiri Muhoro & 2 others [2014] KECA 655 (KLR)
The bottom line
#Kenya's Court of Appeal ruled that children of a divorced wife cannot be disinherited under unproven customary law, and they share equally in the estate.
What this practically means
#Executive summary
#Key legal issues
#Whether children of a divorced wife may be disinherited under Kikuyu Customary Law
The trial judge erred: the alleged customary bar was not backed by sound evidence; PW 2 was not an expert and the practice is not documented or notorious, so Erastus and James, found to be children of the deceased, are entitled to inherit.
The deceased died in 1974, before the Law of Succession Act came into operation, so section 2(2) applies customary law as at the date of death. However, customary law must be proved when not documented or notorious. The treatise relied on concerned widows, not divorced women, and the sole witness on custom was not an expert. Non-discrimination principles in the Children Act and the Constitution reinforce that such children cannot be excluded.
Whether Gerishon received a gift inter vivos from the deceased and so was excluded from Kirimukuyu/Thiu/262
The Court of Appeal affirmed the trial judge's finding that Gerishon was an unreliable witness who failed to prove personal purchase of the land, and that he was not discriminated against as he had already benefited from the estate.
Gerishon bore the burden of proving the title did not belong to the deceased. He was aged about 14 years when the land was registered in his name, could not explain the source of purchase funds or identify the sellers, and produced no sale agreement. The trial judge, who saw him testify, found his explanation incredible; that credibility finding stands.
What share of the estate should Erastus and James receive
A just distribution: Kirimukuyu/Thiu/262 remains with the protestors who lived on and developed it, while Erastus and James share equally with the other sons in the plots, bank money and shares.
The court exercises discretion under the Law of Succession to ensure the ends of justice, informed by the overriding objective. Erastus and James never lived with or depended on the deceased, whereas the protestors lived on the estate and may have developed it; interfering with their occupation of Kirimukuyu/Thiu/262 would not serve the interest of justice.
Duties of a first appellate court
A first appeal court must re-evaluate the evidence and reach its own conclusions, while giving due regard to the fact that it did not see or hear the witnesses.
The court adopted the classic statement in Mwangi v Wambugu that an appellate court will not interfere with findings of fact based on evidence, or where the trial judge's assessment turned on the demeanour of witnesses, unless the finding is based on no evidence, misapprehension of evidence, or a demonstrably wrong principle.
Legal principles established
#- Customary law that is neither notorious nor documented must be proved by evidence, including expert opinion evidence, and cannot be judicially noticed without such proof.
- An appellate court on a first appeal will not interfere with findings of fact of the trial court unless they are based on no evidence, a misapprehension of the evidence, or a wrong principle.
- Customary law practices that are not documented and were relied on without expert evidence cannot be used to disinherit children of a divorced wife of their father's estate.
Court orders
#- 1.Appeal in Civil Appeal No. 248 of 2009 allowed and the orders made on 20th March, 2008 set aside and substituted.
- 2.LR NO. KIRIMUKUYU/THIU/262 to be shared equally between Jackson Kanyuiro Muhoro and Josphat Kahunyo Muhoro.
- 3.Plot No. 127 Karatina Town, Plot No. 53 Karogoto, money with Kenya Commercial Bank Karatina Branch and 450 shares at Nation Publishers to be shared equally between Gerishon Gichingiri Muhoro, Jackson Kanyuiro Muhoro, Josphat Kahunyo Muhoro, Erastus Gichingiri Muhoro and James Kahunyo Muhoro.
- 4.Each party to bear their own costs of the appeal.
- 5.Civil Appeal No. 298 of 2010 dismissed.
- On appeal from
- High Court of Kenya at Nyeri
- H.C. Succ. Cause No. 327 of 1996
- Jurisdiction invoked
- First appeal under the Appellate Jurisdiction Act against the judgment of the High Court in a succession cause
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (5)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- In re Estate of Samuel Kimalel Tanui (Deceased) - Prisca Jepng'etich Tanui v. Prisca Jepkolum Malel & 2 Others[2020] KEHC 1443 (KLR)30 Nov 2020applied
- Ruth Nyawira Wamai v Wangui Wamai [2017] KEELC 2005 (KLR)[2017] KEELC 2005 (KLR)16 Aug 2017applied
- In re Estate of George Kwenja Muthangato (Deceased)[2016] KEHC 1445 (KLR)16 Aug 2016applied
- In re Estate of Kahugu Kimamo (Deceased) - Polly Nyambura Kahugu v Loise Nyambura Ngugi[2015] KEHC 296 (KLR)11 Dec 2015followed
- In the Matter of the Estate of H W K (Deceased)[2015] KEHC 28 (KLR)19 Nov 2015followed
Cite this brief
#Cite this brief
Caselaw, "Erastus Gichingiri Muhoro v Gerishon Gichingiri Muhoro & 2 others [2014] KECA 655 (KLR)", Case Analysis (2014). Civil Appeal No. 248 of 2009. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2014/655/eng@2014-04-07
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.