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Court of AppealPartially AllowedCivil Appeal No. 39 of 2015· [2016] KECA 775 (KLR)

Eliud Chira Muriithi & 2 others v Kinyua Muriithi Ngari [2016] KECA 775 (KLR)

Court of Appeal of Kenya
17 February 2016
1,598 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Court of Appeal ruled that land inherited by a family whose father died in 1976 must be shared equally among all four siblings, not split in half.

What this practically means

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Executive summary

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This was a first appeal from the High Court at Kerugoya (Limo, J.) in a succession dispute over INOI/THAITA/468, the sole property of the estate of Muriithi Ngari, who died intestate on 22 November 1976. The High Court had ordered the respondent, sole child of the deceased's first wife Sarah, to receive half the estate, with the three appellants (children of the second wife, Alice) sharing the other half, on the basis that the deceased was polygamous and his estate devolved under Gikuyu Customary Law, the Law of Succession Act not being in force at his death. The Court of Appeal (Githinji, Nambuye and Kiage, JJ.A) unanimously allowed the appeal in part. It affirmed that Gikuyu Customary Law governed the distribution and that such customs are not repugnant to justice and morality, rejecting the appellants' Article 27 challenge. However, it found the trial Judge erred in holding there were two houses: the unchallenged evidence showed the respondent, orphaned at age three in 1941, was brought up by the appellants' mother as her own child in a one-wife homestead. The court also noted the deceased had allocated portions to each child in his lifetime. Holding that the respondents' 50% award was wrong in fact, law and principle, the court set aside the High Court judgment and substituted an order that the land be shared equally among all four siblings, with costs of the appeal and the court below awarded to the appellants, the court observing the respondent's greed precipitated the dispute.

Key legal issues

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01

Governing law for a pre-1981 intestate estate

Holding

The Law of Succession Act did not apply retrospectively; the deceased's 1976 intestate estate devolved under Gikuyu Customary Law

Reasoning

Because the deceased died in 1976, five years before the Law of Succession Act came into force, the High Court correctly applied Gikuyu Customary Law. The court adopted the principle from Cotran's Restatement of African Law that Gikuyu inheritance is patrilineal and distributed among a man's wives' houses, and held the learned Judge was right on this point.

p. 3
02

Repugnancy of Gikuyu customary succession to the Constitution

Holding

Gikuyu customs of succession are not repugnant to justice and morality; house-based distribution is lawful

Reasoning

The court endorsed the decisions in Mucembi and the Estate of Kirutho Kiiru that Gikuyu succession customs contain no element of repugnancy or immorality, rejecting the appellants' Article 27 attack and counsel's submission that the customs were unfair. Distribution between houses under customary law was upheld as the correct legal framework.

p. 3
03

Number of houses in the homestead

Holding

There was one house, not two, because the respondent was taken in and brought up by the appellants' mother as her own child

Reasoning

The unchallenged affidavit evidence showed the respondent's mother died in 1941 when he was three, and the deceased's homestead was a one-wife homestead from 1941 to 1976, all children being brought up by one mother. The High Court's finding of two houses was wrong in fact, law and principle, justifying appellate interference.

p. 3
04

Deceased's lifetime allocation of land

Holding

The deceased had shown each child the portion to occupy and till, and giving effect to the High Court's order would create inequity

Reasoning

On the unchallenged testimony, the deceased allocated portions equally or equitably among his children during his lifetime. The court found that the High Court's order awarding the respondent 50% would cause inequity and inequality, and substituted equal distribution among all four children.

p. 3

Legal principles established

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  • Where a person died before the Law of Succession Act came into force, the distribution of his intestate estate is governed by the customary law applicable to him
  • Gikuyu customs of succession are not repugnant to justice and morality
  • An appellate court is freer to interfere with findings of fact where the trial court decided on affidavits rather than live testimony, since it stands in as good a position as the trial court
  • An appellate court will not normally interfere with a finding of fact of the trial court unless it was based on no evidence, a misapprehension of the evidence, or a wrong principle

Court orders

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  1. 1.The judgment and decree of the High Court is set aside and substituted with orders that the land known as INOI/THAITA/468 measuring 2.6 hectares (approximately 6.17 Acres) shall be shared equally between Kinyua Muriithi Ngari, Eliud Chira Muriithi, Elizabeth Wanjiku Ngari and Nancy Wambui Murathi
  2. 2.The respondent to pay the costs of the appellants in this court and the court below

Authorities

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Legislation

  • Law of Succession Actgenerally (came into force 1981)
  • Constitution of KenyaArticle 27
  • Court of Appeal RulesRule 29(1)(a)

Cases cited (6)

  • SUMARIA & ANOTHER -VS- ALLIED INDUSTRIES LTD
    [2007] 2 KLR 1
  • EPHANTUS MWANGI & ANOTHER -VS- DUNCAN MWANGI WAMBUGU
    [1982-88] 1 KLR 278
  • PETERS -VS- SUNDAY POST LTD
    [1958] EA 424
  • SELLE -VS- ASSOCIATES MOTOR BOAT CO. LTD
    [1968] EA 123
  • PHILIS MICHERE MUCEMBI -VS- WAMAI MUCHEMBI
    [2010] eKLR
  • RE the matter of the Estate of KIRUTHO KIIRU (deceased)
    [2007] eKLR
On appeal from
High Court of Kenya at Kerugoya
Succession Cause No. 553 of 2013
Jurisdiction invoked
First appeal under the Court of Appeal Rules (Rule 29(1)(a) of the Court of Appeal Rules invoked); appellate jurisdiction over 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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Cite this brief

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Cite this brief

Caselaw, "Eliud Chira Muriithi & 2 others v Kinyua Muriithi Ngari [2016] KECA 775 (KLR)", Case Analysis (2016). Civil Appeal No. 39 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2016/775/eng@2016-02-17

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.