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Court of AppealDismissedCivil Appeal No 239 of 2016· [2020] KECA 605 (KLR)

Njuru v Njuru (Civil Appeal 239 of 2016) [2020] KECA 605 (KLR)

Court of Appeal of Kenya
5 June 2020
3,568 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal confirmed that polygamous family estates must be divided by house under section 40 of the Law of Succession Act, with little room for courts to deviate.

What this practically means

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Executive summary

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This is a first appeal to the Court of Appeal from a High Court ruling upholding a protest in the distribution of the intestate estate of John Njuru Gakuu, a polygamous man who died leaving two houses: the 1st house of the late Josephine Muthoni Njuru (mother of the respondent, Loice Njeru Njuru) and the 2nd house of the appellant, Grace Wanjiru Njuru, with eleven children. The High Court confirmed the grant jointly in the names of the appellant and respondent and distributed the estate, retaining the Ndarugu/Gakoe/1619 and 1620 tea plots and Naivasha/Kabati 457 with the 1st house, and the Rift Valley (Longonot/Kijabe and Kiambogo/Elementaita) properties with the 2nd house. The appellant complained that the properties were inequitably distributed without valuation, that the judge shifted the burden of proof, and that the deceased's wishes were disregarded. The Court, applying the first-appeal retrial principles in Selle v Associated Motor Boat Co Ltd, framed three issues: the correctness of the distribution methodology, equitable distribution, and the deceased's wishes. It held that section 40 of the Law of Succession Act governs polygamous intestacies and leaves only limited residuary discretion to adjust shares; that the distribution reflected the deceased's lifetime settlement of his families, the 1st house's tea farming on the Gakoe land and payment of rates on the Naivasha plot; and that the appellant failed to prove, by hard evidence, that the 1st house had received four Rift Valley plots during the deceased's lifetime, or that the Rift Valley properties were of lesser value. The Court affirmed the High Court's distribution and dismissed the appeal, ordering each party to bear its own costs as a family dispute.

Key legal issues

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01

The correct methodology for distributing a polygamous intestate's estate

Holding

Section 40 of the Law of Succession Act governs: the estate is divided among the houses according to the number of children in each house plus a surviving wife as an additional unit; the court has only a limited residuary discretion within the statute to make adjustments.

Reasoning

The court applied section 40(1) as the controlling provision for a polygamous intestate. Relying on Elizabeth Chepkoech Salat and Scolastica Ndululu Suva, it held that where parties have not consented, the court is bound by the statutory principles and cannot substitute its own notion of equity, though it may adjust shares for factual circumstances such as lifetime settlement of property on a house.

p. 5
02

Whether the estate was equitably distributed between the two houses

Holding

Yes. The distribution, which retained the Gakoe tea plots and Naivasha/Kabati 457 with the 1st house and the Rift Valley properties with the 2nd house, reflected the deceased's lifetime settlement of his families and was fair and equitable.

Reasoning

The Court re-evaluated the evidence afresh as on a first appeal. It found no evidence that the 1st house had been allocated Rift Valley plots during the deceased's lifetime, and no valuation proving the Gakoe properties were more valuable. The 1st house farmed tea on, and was settled on, the Gakoe land where Josephine was buried, and had paid rates on the Naivasha plot. The trial judge also correctly included all daughters as beneficiaries.

p. 7
03

Whether the deceased's wishes ought to have been taken into account

Holding

The deceased died intestate, so the statutory regime applied; however, the judge did in fact give due regard to his wishes by distributing the estate according to how he had settled his two families during his lifetime.

Reasoning

Section 34 deems a person to die intestate in respect of free property not disposed of by a valid will, and the estate of an intestate must be distributed according to law. Nothing in the Law of Succession Act authorises a court to disregard a deceased's wishes where lawful and fair. Here, the distribution respected his preexisting settlement of the 1st house on the Gakoe and Naivasha plots and the 2nd house in the Rift Valley.

p. 7
04

Whether the appellant discharged the burden of proving that the 1st house received and sold four Rift Valley plots during the deceased's lifetime

Holding

No. The claim was not proved by hard evidence, and therefore provided no basis for reallocating Ndarugu/Gakoe/1620 to the 2nd house.

Reasoning

Both the trial court and this Court examined the record and found nothing to show the 1st house was allocated plots in the Rift Valley during the deceased's lifetime. The appellant's proposal would have given the 2nd house all the Rift Valley properties, the Naivasha plot and one Gakoe parcel, i.e. more than the lion's share of the estate, which was inequitable.

p. 6

Legal principles established

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  • On a first appeal, the Court of Appeal must evaluate the evidence recorded before the trial court afresh by way of a retrial and reach its own independent conclusion, while making due allowance for not having seen or heard the witnesses.
  • Where an intestate has married more than once under a system permitting polygamy, the estate is divided among the houses according to the number of children in each house, with any surviving wife added as an additional unit, but a court may make limited adjustments within the statutory framework, such as for property settled during the deceased's lifetime.

Court orders

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  1. 1.The appeal is dismissed
  2. 2.Each party to bear its own costs, the matter being a family dispute

Authorities

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Legislation

  • Law of Succession Act (Cap 160)Section 40(1)
  • Law of Succession Act (Cap 160)Section 34

Cases cited (5)

  • Selle v Associated Motor Boat Co. Ltd
    (1968) EA 123
  • Abdul Hameed Saif v Ali Mohammed Sholan
    (1955), 22 EACA 270
  • Elizabeth Chepkoech Salat v Josephine Chesang Salat
    [2015] eKLR
  • Scolastica Ndululu Suva vs Agnes Nthenya Suva
    [2019] eKLR
  • Margaret Wanja Elija vs Peter Ngari Elijah Kimani
    [2013] eKLR
On appeal from
High Court of Kenya
Not stated in the judgment (succession cause concerning the estate of John Njuru Gakuu, deceased)
Jurisdiction invoked
First appeal to the Court of Appeal under the Court of Appeal's appellate jurisdiction (specific provision not stated in the judgment)

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, "Njuru v Njuru (Civil Appeal 239 of 2016) [2020] KECA 605 (KLR)", Case Analysis (2020). Civil Appeal No 239 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2020/605/eng@2020-06-05

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