Mwithalie (Suing as the Legal Representative of the Estate of Teresia Ntundu) v Kiringuri & 4 others
The bottom line
#Kenya's Court of Appeal confirmed that grandchildren cannot inherit from a grandparent's estate unless they prove they were dependants under section 29 of the Law of Succession Act.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the appellant established that he was a dependant of the deceased and therefore entitled to inherit from his estate
Key legal issues
#Whether the appellant, a grandchild, qualified as a dependant under section 29 of the Law of Succession Act
He did not; his mother was found to be born out of wedlock and not a child of the deceased, and no evidence showed she was taken in by the deceased as his own child
The court applied section 29, noting grandchildren qualify only if taken into the family as the deceased's own or maintained by him immediately prior to death. The trial court, having seen and heard the witnesses, believed the 1st respondent's testimony that Teresia Ntundu was her daughter from a previous relationship. The appellate court deferred to that credibility finding and found no persuasive evidence of adoption or maintenance.
The duty of a first appellate court
The court applied the Selle principles: reconsider and evaluate the evidence itself while making due allowance for not having seen or heard the witnesses
The court restated the classic Selle formulation that a first appeal is by way of retrial, but that the appellate court is not bound by trial findings of fact only where the trial judge clearly failed to take account of particular circumstances or probabilities. It then deferred to the trial court's assessment of demeanour and credibility.
Legal principles established
#- A grandchild has no direct claim to a deceased's estate unless the grandchild establishes dependant status under section 29 of the Law of Succession Act, e.g. that the deceased took the grandchild's parent into his family as his own or maintained the grandchild immediately prior to death
- On a first appeal, an appellate court defers to the trial court's findings on witness credibility where the trial court saw and heard the witnesses
Court orders
#- 1.The appeal is dismissed
- 2.No orders as to costs, the matter being a family dispute
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Meru
- Succession Cause No. 517 of 2008 (ruling dated 18th November 2021)
- Jurisdiction invoked
- First appeal to the Court of Appeal under the Law of Succession Act / Court of Appeal jurisdiction (no specific constitutional provision cited)
Relief refused
#Revocation of the confirmed grant issued to the 1st respondent and fresh re-distribution of the estate
Appellant failed to establish his late mother was a dependant of the deceased; as a grandchild he has no direct claim
Costs
No orders as to costs as this was a family dispute
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
In the premises therefore, we nd no merit with the appeal. It is hereby dismissed but with no orders as to costs as this was a family dispute.
Having pegging his right to inherit the estate of the deceased on his late mother’s status as a dependant, and having failed to do so, the appellant as a grandchild has no direct claim to the estate of the deceased.
Grandchildren also qualify to be considered as dependants if “the deceased had taken into his family as his own” or “were being maintained by the deceased immediately prior to his death.” (see section 29(b)).
As the rst appellate court, having not had the opportunity to see and hear the witnesses, we defer to the nding made by the trial court regarding assessment of the credibility of the witness.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mwithalie (Suing as the Legal Representative of the Estate of Teresia Ntundu) v Kiringuri & 4 others", Case Analysis (2025). Civil Appeal 22 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/2227/eng@2025-12-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.