Paul Kamacia Lawrence alias Paul Kamacia Laurent v Mary Njoki Njeru

Wangai Raurend. He first wife, Teresia Kairu predeceased him. Esther had ten children including the respondent, while Agnes had no children. Teresia had two children including the appellant. The appellant and the respondent are therefore half siblings. 3. Following the death of Lawrence Njue, on 26th January, 2015, an amended grant of letters of administration intestate was issued to Njue Kimotho, Agnes Wangai Raurend, Esther Wanjira Njue and Paul Kamacia Laurent (the appellant). The grant was confirmed on the same date and the suit property was shared out to the four co-administrators as follows: (a) Njue Kimotho – 1.05 Ha (b) Agnes Wangai Laurent, Esther Wanjira Njue and Paul Kamacia Raurend – 1.26 Ha to be shared equally. 4. On 15th August, 2016, the respondent filed an application before the probate court seeking revocation or annulment of the amended letters of administration intestate made to the four co- administrators, including the appellant, on 26th January, 2015, and confirmed on the same date. The respondent further sought orders directing that the suit property revert back to the names of the deceased. It was Page 2 of 12

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the respondent’s case that the grant was fraudulently and through concealment of material Page 3 of 12 obtained

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facts. She averred that the deceased, during his lifetime, shared out the suit property to his two sons: Lawrence Njue Kimotho (the appellant’s and respondent’s father), and Njue Kimotho. She deponed that their late father got 1.2 Ha while Njue Kimotho was given a portion measuring 1.05 Ha. 5. The respondent averred that their late father was survived by three widows, and that the only surviving widow was Agnes Wangai. She contended that the appellant, who was from the first wife, did not involve the children of the second and third wives when he filed the succession cause relating to the deceased’s estate. She urged that the appellant included her mother, Esther Wanjira Njue, who is now deceased, but failed to inform her of the said inclusion. The respondent contended that, save for the appellant, none of the children of Lawrence Njue benefited from his share of the deceased’s estate. 6. In response, the appellant filed a replying affidavit dated 30 th August, 2016, where he denied the averments made by the respondent. The appellant contended that the deceased’s estate was distributed between his two sons, Lawrence Njue and Njue Kimotho. He averred that he only became involved in the succession cause upon substituting his Page 4 of 12

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father, Lawrence Njue, as an administrator, alongside two co-administrators Page 5 of 12

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representing the three houses of Lawrence Njue. He stated that he represented the first house, Agnes Wangai the second house, and Esther Wanjira Njue (the respondent’s mother) the third house. He further pointed out that by the time the grant was confirmed, all three houses of Lawrence Njue were duly represented and had consented to the mode of distribution of his share of the deceased’s estate. 7. The appellant further averred that the respondent and himself were merely the deceased’s grandchildren, and that he was only included as a co-administrator since his mother, Teresia Kairu, was dead. He urged that there was no need for the respondent as well as the other children of Esther Wanjira Njue to be included as beneficiaries, as their mother, Esther Wanjira Njue, was a co-administrator, and participated in the succession proceedings. He asserted that following the death of the respondent’s mother, she ought to have applied for an amendment of the grant so that she could substitute her mother as a co-administrator, instead of applying for a revocation of the grant. 8. The application for revocation of the grant was heard by way of viva voce evidence. The respondent testified as PW1. She reiterated the averments made in her affidavit in support of Page 6 of 12

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the Page 7 of 12

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application for revocation of the grant. She averred that her father’s first wife, Teresia Kairu had two children, including the appellant; his second wife Agnes Wangai had no children; while his third wife Esther Wanjira had ten children, including the respondent. She testified that the equal distribution of their late father’s share of the deceased’s estate among the three houses was inequitable, as it disadvantaged the children of Esther Wanjira, who are ten in number, compared to the appellant, who has only one sibling with whom to share his mother’s portion. She maintained that she and her siblings were excluded from the succession proceedings and that, on that basis, the grant ought to be revoked. 9. The appellant testified as DW1. He opposed the distribution of their late father’s share based on the number of children. He maintained that an equal distribution among the houses was fair, with each house thereafter distributing its share among its respective children. DW2, Jernado Kinyua Kimotho, and DW3, Nicholas Njeru, sons of the deceased, and siblings to the late Lawrence Njue, supported the appellant’s case. They told the court that it was the wish of the late Lawrence Njue that his share of the deceased’s Page 8 of 12

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estate be distributed equally amongst his three houses. Page 9 of 12

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10. After hearing the parties, the learned Judge found in favour of the respondent. He determined that the entire house of Esther Wanjira proceedings and was not involved in the succession that the mode of distribution disadvantaged them, and was contrary to the provisions of Section 40 of the Law of Succession Act. The learned Judge found that the confirmed amended grant erroneously included Esther Wanjira, as she was deceased by the time of the confirmation, and was therefore, defective. 11. The learned Judge made orders: revoking the amended grant issued on 26th January, 2015; revoking the confirmed grant made on 21st June, 1996, and substituting it with a fresh grant in the names of Njue Kimotho, Agnes Wangai Raurend, Paul Kamacia Laurent, and Mary Njoki Njeru; reverting the suit property to the names of the deceased, Kimotho Njanguthi; and made an order distributing the estate of the deceased to Njue Kimotho (1.05 Ha), and equal shares of 0.105 Ha each to the twelve children of Lawrence Njue. 12. Aggrieved by this decision, the appellant filed the instant appeal where he faulted the learned Judge for: holding that Esther Wanjira Njue died before the grant was confirmed Page 10 of 12

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on 26th January, 2015, when she in fact died in May, 2015; Page 11 of 12

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disregarding the evidence of the appellant; failing to acknowledge that the respondent was required to file an application to substitute her mother (Esther Wanjira) as a coadministrator, as opposed to filing an application to revoke the grant; disregarding the evidence on record which was that the deceased estate was shared out between his two sons, and that Lawrence Njue’s portion, was to be distributed equally amongst his three wives, as was consented to by the beneficiaries during the confirmation of the grant; cancelling the grant issued on 26 th January, 2015, and making the subsequent orders thereto; and lastly, for delivering a judgment that was against the weight of the evidence. 13. The appeal was canvassed by way of written submissions. The parties appeared in person. It was the appellant’s submission that Esther Wanjira died after confirmation of the grant, and not prior as held by the learned Judge, and that she participated in succession proceedings and fully consented to the mode of distribution. He averred that according to Paragraphs 16, 17 and 20 of the 5th Schedule of the Probate and Administration Rules, the respondent ought to have Page 12 of 12 applied for letters of

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administration de bonis non for purposes of completing the estate, after the death of her mother who was Page 13 of 12

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a co-administrator. He contended that Section 35 as read together with Section 58(1) of the Law of Succession Act stipulates that where an intestate leaves a surviving spouse, the children are not entitled absolutely to the estate, but the surviving spouse holds the estate in trust for the children. It was his submission that at the time of confirmation of the amended grant, the two surviving widows of Lawrence Njue were alive and consented to the mode of distribution. 14. In rebuttal, the respondent intimated to this Court that she wished to rely on her submissions filed before the probate court. However, we note that those submissions do not form part of the record, and consequently, we were unable to consider them. 15. This being a first appeal, our duty was well stated in Selle and Another v. Associated Motor Boat Co. Ltd [1968] E.A. 123, where the court observed as follows: “An appeal to this Court from a trial by the High Court is by way of a retrial and the principles upon which this Court acts in such an appeal are well settled. Briefly put they are that this Court must reconsider the evidence, evaluate it itself and draw its own conclusions, though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in Page 14 of 12

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this respect. In particular this Court is not bound necessarily to follow the trial judge’s findings of fact, if it appears either that he has Page 15 of 12

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clearly failed on some point to take account of particular circumstances or probabilities materially to estimate the evidence, or if the impression based on the demeanor of a witness is inconsistent with the evidence in the case generally (Abdul Hameed Saif v Ali Mhamed Sholan, (1955) E.A.C.A. 270)”. 16. Guided by the foregoing principles, the grounds of appeal, record of appeal as well as submission made by the appellant, the issue for determination is one: whether the probate Court erred in adopting a mode of distribution that considered the children as a unit of distribution instead of, as asserted by the appellant, the three wives of the Lawrence Njue (deceased) being considered as a unit. 17. It was the appellant’s appeal that the family of the deceased had met, discussed and agreed that the unit of distribution in respect of the portion of the estate of the deceased to be inherited by the Lawrence Njue’s family would be his wives instead of the number of children born of the said Lawrence Njue now also deceased. The appellant’s testimony in that regard was corroborated by the evidence of DW2 and DW3, who also happen to be the sons of the deceased. 18. On the respondent’s part, it was her evidence that if a mode of distribution, other than the one adopted by the Probate Court Page 16 of 12

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was upheld, it would result in the discrimination of the children of her mother who were more compared to the children of the appellant’s mother. 19. In finding in favour of the respondent, the Probate Court relied on section 40(1) of the Law of Succession Act which provides thus: “Where an intestate has married more than once under any system of law permitting polygamy, his personal and household effects and the residue of the net intestate estate shall, in the first instance, be divided among the houses according to the number of children in each house, but also adding any wife surviving him as an additional unit to the number of children.” 20. This Court in Rono v Rono & Another [2005] KECA 326(KLR) held thus in reference to the application of Section 40(1) of the Law of Succession Act in the distribution of estates of a deceased polygamous man who had many wives and children (per Omolo JA): “35. My understanding of that section is that while the net intestate estate is to be distributed according to houses, each house being treated as a unit, yet the Judge doing the distribution still has a discretion to take into account or consider the number of children in each house. If Parliament had intended that there must be equality between houses, there would have been no need to provide in the section that the number of children in each house be taken into account.” Page 17 of 12

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21. In the present appeal, the appellant’s grievance is that the probate court ought to have considered what the family agreed prior to the filing of the proposed mode of distribution and not the objection later raised by the respondent. The appellant argued that the mother of the respondent prior to her death had consented to the mode of distribution according to the houses of Lawrence Njue (deceased) and not the number of children. 22. Our perusal of the record of the probate court does not support the assertion by the appellant to the effect that the respondent’s family consented or participated in the family meeting that allegedly agreed that the portion of the estate due to the family of Lawrence Njue (deceased) should be distributed in accordance with his wives and not his children. The respondent’s assertion that her family was not consulted or involved in the discussion regarding the mode of distribution to be adopted was properly upheld by the probate Court. 23. In the circumstances, therefore, we are satisfied that the High Court did not err when it ordered the portion of the estate to be inherited by the family of Lawrence Njue (deceased) in accordance with the number of the children, each considered as a unit, and not in the manner proposed Page 18 of 12

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by the appellant. The Page 19 of 12

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mode of distribution adopted by the probate court was equitable and fair. 24. The upshot of the above reasons is that the appeal lacks merit and is hereby dismissed. There shall be no orders as to costs as this is a dispute within the family. Dated and delivered at Nyeri this 25 th day of September, 2026. W. KARANJA ........................ .. JUDGE OF APPEAL L. KIMARU ........................ .. JUDGE OF APPEAL A.O. MUCHELULE ......................... .. JUDGE OF APPEAL I certify that this is a true copy of original. Signed DEPUTY REGISTRAR Page 20 of 12

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