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Court of AppealPartially AllowedCivil Appeal No. 248 of 2009· [2014] KECA 655 (KLR)

Erastus Gichingiri Muhoro v Gerishon Gichingiri Muhoro & 2 others [2014] KECA 655 (KLR)

Court of Appeal of Kenya
7 April 2014
4,786 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~19 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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This consolidated appeal concerned the estate of Washington Muhoro, who died intestate in 1974, before the Law of Succession Act came into force. Two cross-appeals were filed against the High Court's confirmation of the grant: Erastus Gichingiri Muhoro (Civil Appeal No. 248 of 2009) claimed that he and his brothers, sons of the deceased's divorced wife Jedidah Wairimu, were wrongly disinherited under Kikuyu Customary Law; Gerishon Gichingiri Muhoro (Civil Appeal No. 298 of 2010) challenged the finding that he had received a share of the estate inter vivos and was therefore excluded from Kirimukuyu/Thiu/262. The Court of Appeal, in a joint judgment by Visram, Koome and Odek, JJ.A., held that Erastus and James were children of the deceased, but that the trial judge erred in relying on an unproven customary bar: the sole witness on Kikuyu Customary Law was not an expert, the practice of disinheriting children of a divorced wife was undocumented and not shown to be notorious, and customary law must be proved by expert evidence where it is neither documented nor notorious. Paul and Titus were confirmed not to be children of the deceased. Gerishon's appeal was dismissed: he bore the burden of proving personal acquisition of the land and, registered at age 14 with no explained source of funds, the credibility finding against him stood. The Court allowed Erastus' appeal in part, holding it unjust to dislodge the protestors from Kirimukuyu/Thiu/262, but directing that Erastus and James share equally with the other sons in the plots, bank money and shares. Each party was ordered to bear their own costs as a family matter.

Key legal issues

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01

Whether children of a divorced wife may be disinherited under Kikuyu Customary Law

Holding

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.

Reasoning

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.

p. 7
02

Whether Gerishon received a gift inter vivos from the deceased and so was excluded from Kirimukuyu/Thiu/262

Holding

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.

Reasoning

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.

p. 8
03

What share of the estate should Erastus and James receive

Holding

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.

Reasoning

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.

p. 8
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Duties of a first appellate court

Holding

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.

Reasoning

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.

p. 5

Legal principles established

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  • 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

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  1. 1.Appeal in Civil Appeal No. 248 of 2009 allowed and the orders made on 20th March, 2008 set aside and substituted.
  2. 2.LR NO. KIRIMUKUYU/THIU/262 to be shared equally between Jackson Kanyuiro Muhoro and Josphat Kahunyo Muhoro.
  3. 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. 4.Each party to bear their own costs of the appeal.
  5. 5.Civil Appeal No. 298 of 2010 dismissed.

Authorities

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Legislation

  • Law of Succession ActCap 160
  • Law of Succession ActSection 2(2)
  • Law of Succession ActSection 27
  • Law of Succession ActSection 28
  • Law of Succession ActSection 29(1)
  • Law of Succession ActSection 42
  • Law of Succession ActSection 83(3)
  • Judicature ActCap 8, Section 3(2)
  • Children Act2001, Section 5
  • Appellate Jurisdiction Actnull
  • Constitution of Kenya 2010null
  • Repealed Constitution of Kenyanull

Cases cited (4)

  • Mwangi v Wambugu
    [1984] KLR 453
  • Otieno v Ougo & Another
    2008 1 KLR 9 & F page 948
  • Wambugi w/o Gatimu v Stephen Nyaga Kimani
    1992 2 KAR 292
  • Kimani v Gikanga
    [1965] EA 735
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

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Practical implications

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Frequently asked questions

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Later judgments citing this (5)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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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.