Nguu v Muthoni & 3 others

noted that although the grant was revoked, no administrator had been appointed and allowed the previous administrator to remain in place. 4. Following those directions, the appellant led summons dated 10th December 2018 for conrmation of grant, setting out his proposed mode of distribution of the estate. In the summons and subsequent submissions, the appellant stated that he had included all beneciaries who were entitled to inherit from the estate. His proposed distribution was as follows: i. LR No. Ngando/Kirigi/2588 – to himself, Renson Nyaga Nguu; ii. LR No. Ngando/Kirigi/2589 – to Ephantus Njagi Nguu; and iii. LR No. Ngando/Kirigi/2590 – to the appellant’s son Moat Njeru. 5. The appellant further pleaded that the married daughters ought not to inherit from the deceased's estate. For that reason, parcel No. Ngando/Kirigi/2590, ought to be inherited by a great-grandson, Lewis Murimi Njeru, rather than the 4th respondent. 6. The respondents led their respective adavits of protest opposing the appellant’s proposed mode of distribution, and proposing an alternative mode. The 1st to 3rd respondents stated that the assets of the estate comprised of land parcels No. Ngando/Kirigi/2587, 2588, 2589 and 2590. That during his lifetime, the deceased transferred parcels No. 2588 and 2589 to his grandsons, with parcel No. 2588 going to the appellant and parcel No. 2589 to Ephantus Njagi Nguo. Consequently, the only properties remaining for distribution were parcels No. 2587 and 2590. 7. The 4th respondent similarly opposed the appellant’s proposal. He stated that the deceased was his maternal grandfather and had owned approximately seven acres of land. He too agreed that before his death, the deceased had allocated two acres each to the appellant and Ephantus Njagi, who already held title deeds to those portions. The remaining three acres, comprising of parcels No. 2587 and 2590 were therefore, the only portions subject to the succession proceedings. 8. The 4th respondent further stated that he had, during the deceased's lifetime, been assigned one acre representing his mother's share. He therefore, supported a mode of distribution that would allow him to retain the one acre represented by parcel LR No. 2590, while the deceased's granddaughters would share the remaining two acres. 9. When the matter was set down for hearing, the appellant, Morris Mbogo Nguu and Lincoln Muthee Kithaka testied in support of the appellant’s case, while the 3rd and 4th respondents testied in support of the respondents’ case. 10. The 4th respondent testied that the deceased who was his maternal grandfather had two children, Elijah Nguu Njuguna and Elizabeth Wandu, the latter being the 4th respondent’s mother. He testied that the deceased originally owned LR No. Ngando/Kirigi/491, measuring approximately seven acres. According to him, the deceased distributed the land during his lifetime, giving two acres to the appellant Renson Nyaga Nguu; two acres to Ephantus Njagi Nguu; and one acre to the 4th respondent, being the share attributable to his mother, Elizabeth Wandu. 11. The 4th respondent maintained that the dispute concerned the remaining three acres comprised in LR Nos. Ngando/Kirigi/2587 and 2590, measuring two acres and one acre respectively. He therefore, laid claim to LR No. 2590 as the one acre said to have been allocated to him in place of his mother. 12. The 3rd respondent conrmed that the original parcel, LR No. Ngando/Kirigi/491, measured seven acres and belonged to their grandfather. That in 1977 the deceased subdivided the land and allocated two acres to Renson Nyaga Nguu and two acres to Ephantus Njagi Nguu. The remaining three acres https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1974/eng@2026-09-25 2

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were intended for the grand-daughters. Of those three acres, two acres were in the name of Nguu Njuguna, while one acre remained in the name of the deceased. 13. The 3rd respondent testied that in 1990, her father, Nguu Njuguna, called the daughters and the appellant, together with the late Dedan Muriuki and Mr. Nyaga Mutakaa, in the meeting he expressed his wish that his two-acre portion be subdivided into four equal portions of half acre each and distributed to: i. Perris Muthoni – ½ acre; ii. Lucy Njuru – ½ acre; iii. Rosaline Wambugu (deceased) – ½ acre; and iv. Mercy Wanyaga – ½ acre That Rosaline Wambugu’s half-acre portion was subsequently given to her son, Morris Mbogo. The remaining portions left for the grand-daughters continued to be held in the family, and the granddaughters were therefore, entitled to their respective portions. 14. The appellant’s testimony was that his grandfather the deceased, owned LR No. Ngando/Kirigi/491 measuring approximately seven acres. He subdivided it and allocated LR. No. 2587 measuring two acres to his father, Elijah Nguu Njuguna, two acres to the appellant being LR No. 2588 and two acres to the appellant’s brother Ephantus Njagi Nguu, being LR No. 2589. The remaining portion being LR No. 2590 measuring one acre was given to the appellant’s son, Moat Njeru Nyaga, who was then a minor. 15. The appellant stated that he continued to occupy and cultivate the parcel LR No. 2590 and that Moat and other family members were buried thereon. He therefore asserted that it should devolve to Moat’s son, Lewis Murimi Njeru. He disputed the 4th respondent’s claim to LR No. 2590, stating that the 4th respondent had never used or cultivated the land. 16. The appellant maintained that LR. No. 2587 belonged to his late father and was not available for redistribution as part of the deceased’s estate. That his late father had stated that his parcel be divided among his unmarried daughters: Peris Muthoni and Rosaline Wambugu (deceased) and his sons: Ephantus Njagi and the appellant. He therefore, proposed Morris Mbogo Nguu as a beneciary through his mother, Rosaline Wambugu. 17. Morris Mbogo Nguu, a great-grandson of the deceased, testied that he was a son of the late Rosaline Wambugu, who had been allocated a ½ acre from the portion of land belonging to his grandfather, Elijah Nguu Njuguna. That his mother subsequently gave that portion to him and acquired land elsewhere. That he was born in his grandfather’s homestead in 1982 after the deceased’s death, and the land was not transferred to his grandfather because of inability to meet the transfer fees. He denied selling the land and maintained that he was entitled to his mother’s share. 18. Lincoln Muthee Kithaka, the Assistant Chief of Riangage Sub- Location, testied that he knew the deceased as well as his family members, including Elizabeth Wandu and Nguu Njuguna. He claried that he was not a member of the family of the deceased and in 1977, when the land was allegedly subdivided, he was about 13 years old. He acknowledged that he was aware that Njuguna Thagicu had subdivided his land during his lifetime but he did not know the reason for the subdivision, or the way it was eected. He had no personal interest in the land and had not participated in its subdivision. 19. Upon considering the evidence before her, L. Njuguna J. rendered a judgment on 24th November, 2021 and found that the appellant had already beneted from the deceased during his lifetime by https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1974/eng@2026-09-25 3

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receiving LR No. 2588. The learned Judge proceeded to distribute LR No. 2590 in its entirety to the 4th respondent, and ordered that LR No. 2587 be shared among the 1st to 3rd respondents and Rosaline Wambugu’s children, (Charles Mukundi Njeru, David Muturi Njeru, Morris Mbogo Nguu, Diana Stacia Njeru and Wycli Mumanthi Njeru). 20. That decision did not please the appellant and he led this appeal. In the Memorandum of Appeal dated 7th February 2022, he alleged that the learned trial judge erred in law and in fact: 1. By assuming the role of advocate for the protestors and solely relying on their submissions hence occasioning a miscarriage of justice. 2. By disregarding the petitioner’s evidence and adopting the protestors evidence and mode of distribution which was not based on any evidence and the law, hence arriving at the wrong conclusion. 3. By entirely coming to the conclusion that the cause should be determined under cap 160 laws of Kenya, an act which led to disinheriting the appellant. 4. By disregarding the petitioners act of supporting the purchaser’s interest stating that it was intended to defraud the protestors, an act which prejudiced the purchasers and arrived at the wrong conclusion. 5. By ignoring the petitioner’s evidence as presented hence arrived at the wrong conclusion. 6. By failing to analyze the evidence presented to her hence arrived at the wrong conclusion. 21. The appellant led written submissions dated 20th November, 2025 in person, challenging the High Court judgment and urging this Court to uphold his proposed mode of distribution. He disputed the 4th respondent’s claim arguing that it was unsupported and was largely hearsay. He asserted that LR. No. 2587 belonged to his late father and was not available for distribution as part of the deceased’s estate. He challenged the 1st to 3rd respondents’ claim to equal shares, positing that their allegation concerning subdivision of the land had not been corroborated by the person they claimed was involved in the arrangement. 22. The appellant submitted that the respondents had failed to prove their claims on a balance of probabilities and therefore, the learned judge erred in adopting their proposed distribution. He asserted that his proposed mode of distribution was fair and consistent with the deceased’s and his father’s wishes and prayed that it be upheld and the judgment be set aside. 23. The 2nd respondent led submissions dated 25th June 2025, on behalf of the respondents, opposing the appeal and stating that it was incompetent for want of jurisdiction. The respondents contended that, under section 50(1) of the Law of Succession Act, (LSA) an appeal from a decision of the High Court in probate and administration matters lies to this Court only with leave of the High Court. Since no such leave had been obtained, they urged this Court to strike out the appeal. 24. On the merits of the appeal, the respondents submitted that the learned Judge properly evaluated the evidence and correctly applied the LSA. That the appellant’s attempt to disinherit the 1st to 3rd respondents merely because they were married granddaughters, amounted to discrimination and was contrary to Article 27 of the Constitution. They further argued that the appellant having already beneted from the estate by receiving LR. No. 2588, which was registered in his name, the learned judge was entitled to take that benet into account when determining the distribution of the remaining estate. https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1974/eng@2026-09-25 4

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25. The respondents argued that the appellant had failed to demonstrate any basis for disinheriting them and his proposed distribution was not supported by the evidence. They urged this Court to uphold the distribution as ordered in the determination of the High court. 26. The appeal came before Court for hearing on the virtual platform on 17th March, 2026. There was no appearance from either side, even though both parties had been duly served with the hearing notice but their led submissions were on record. This judgment is therefore based on the submissions on record, without highlights from any of the parties. 27. As the rst appellate Court our mandate is well stated in Gitobu Imanyara & 2 Others v Attorney General (2016) eKLR as follows: “ An appeal to this Court from a trial by the High Court is by way of retrial and the principles upon which this Court acts in such an appeal are well settled. Briey 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 allowances in this respect.” 28. In Volpi vs. Volpi [2022] 4 WLR 48, a UK Court of Appeal decision, Lewison L J summed up the law as follows: “ i. An appeal court should not interfere with the trial judge’s conclusions on primary facts unless it is satised that he was plainly wrong. ii. The adverb "plainly" does not refer to the degree of condence felt by the appeal court that it would not have reached the same conclusion as the trial judge. It does not matter, with whatever degree of certainty, that the appeal court considers that it would have reached a dierent conclusion. What matters is whether the decision under appeal is one that no reasonable judge could have reached. iii. An appeal court is bound, unless there is compelling reason to the contrary, to assume that the trial judge has taken the whole of the evidence into his consideration. The mere fact that a judge does not mention a specic piece of evidence does not mean that he overlooked it. iv. The validity of the ndings of fact made by a trial judge is not aptly tested by considering whether the judgment presents a balanced account of the evidence. The trial judge must of course consider all the material evidence (although it need not all be discussed in his judgment). The weight which he gives to it is however pre-eminently a matter for him. v. An appeal court can therefore set aside a judgment on the basis that the judge failed to give the evidence a balanced consideration only if the judge's conclusion was rationally insupportable. vi. Reasons for judgment will always be capable of having been better expressed. An appeal court should not subject a judgment to narrow textual analysis. Nor should it be picked over or construed as though it was a piece of legislation or a contract.” https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1974/eng@2026-09-25 5

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29. 30. Upon considering the record and grounds of appeal, the submissions and the law, we discern that the three issues for determination are whether: i. Leave was required before lodging this appeal; ii. The learned Judge properly evaluated the evidence and correctly applied the Law of Succession Act; and iii. The mode of distribution by the High Court was justied. The respondents raised a Preliminary Objection that the appeal was incompetent for want of leave under section 50(1) of the LSA. They contended that an appeal from the High Court in succession proceedings could only be brought to this Court with the leave of court. The record shows that the impugned decision was made by the High Court in exercise of its original jurisdiction in HCSucc Cause No. 284 of 2009. Section 50(1) of the LSA provides that: “ An appeal shall lie to the High Court in respect of any order or decree made by a Resident Magistrate in respect of any estate and the decision of the High Court shall be nal.” 31. In the recent Supreme Court decision in Wandi v Muchira (Suing as the Administrator Ad Litem of Jane Muthoni Muchira) [2026] KESC 29 (KLR), considered the precise question as to whether leave is a prerequisite for an appeal in this Court, from a decision of the High Court exercising its original jurisdiction in succession matters. It pronounced itself as follows: “ 52. It follows, therefore, that the Law of Succession Act and the Probate and Administration Rules do not contain any express provision requiring leave for appeals from decisions of the High Court rendered in the exercise of its original jurisdiction. In the absence of such express stipulation, the requirement for leave in succession jurisprudence cannot be said to arise from statute, but rather from judicial interpretation. Indeed, it is notable that the Court of Appeal, in several of the decisions we have considered in this judgment, has characterised the requirement for leave to appeal as one grounded in “judicial practice. ……………………………………………………………………… ……………………………………………………………………… ….. 54. We therefore come to the inevitable conclusion that there is no legal basis for imposing a requirement of leave as a prerequisite for lodging an appeal to the Court of Appeal against a decision of the High Court rendered in the exercise of its original jurisdiction in a succession matter. Such a requirement, not being anchored in either the Constitution or statute, cannot properly be sustained.” 32. This decision has authoritatively settled the controversy and armed that an appeal from the High Court exercising original jurisdiction in succession matters, lies to this Court without the need to obtain leave. 33. On to the second issue, the appellant urged that the judge failed to properly consider his evidence and instead adopted the respondents’ version of events. His position was that the deceased had, during his lifetime, subdivided the original parcel LR No. Ngando/Kirigi/491 measuring approximately seven https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1974/eng@2026-09-25 6

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acres. According to him, the deceased allocated parcel No. LR. 2587 measuring two acres to the appellant’s father, Elijah Nguu Njuguna; two acres to the appellant under parcel No. LR. 2588; two acres to his brother Ephantus Njagi Nguu under parcel No. LR. 2589; and the remaining one acre being parcel No. LR. 2590, was given to the appellant’s son, Moat Njeru Nyaga. 34. The appellant therefore, contended that, parcels No. LR. 2587, 2588 and 2589 had already been distributed and only parcel No. LR. 2590 remained and it ought to devolve to Moat’s son, Lewis Murimi Njeru. The appellant further stated that his late father had intended his portion to be divided amongst his unmarried daughters: Peris Muthoni and the late Rosaline Wambugu; and his sons: Ephantus Njagi and the appellant. Consequently, he proposed that Morris Mbogo Nguu, a son of the late Rosaline, be recognized as a beneciary. 35. The respondents took a contrary position. They asserted that the judge properly evaluated the evidence and correctly applied the LSA. That the appellant had already beneted from the deceased during his lifetime, through parcel No. LR 2588, which was registered in his name. They therefore supported the learned judge’s decision to take that previous benet into account when determining the appellant’s entitlement to the remaining estate. They also rejected the attempt to exclude the 1st to 3rd respondents on the basis that they were married granddaughters, contending that such exclusion was discriminatory and contrary to Article 27. 36. Regarding lifetime allocations, section 42 of the LSA provides that: “ Where— a. an intestate has, during his lifetime or by will, paid, given or settled any property to or for the benet of a child, grandchild or house; or b. property has been appointed or awarded to any child or grandchild under the provisions of section 26 or section 35, that property shall be taken into account in determining the share of the net intestate estate nally accruing to the child, grandchild or house. 37. In Munyole v Munyole (Civil Appeal No. 21 of 2017) [2022] KECA 373 (KLR), this Court had occasion to consider this issue and it held that, before a court can conclude that a deceased made a gift inter vivos to a beneciary, evidence must be led to establish the gift. 38. There is clear evidence in the present case, including the appellant's own testimony, that he had received parcel No. LR. 2588 from the deceased during his lifetime. The learned judge was therefore entitled to take that benet into account under section 42 of the LSA. 39. We also nd no merit in the appellant's contention that the 1st to 3rd respondents should be excluded because they are married. His evidence was that his late father intended his parcel to be shared among his unmarried daughters and sons. That alleged intention could not, however, override the applicable law, or create a distinction between married and unmarried daughters in an intestate succession. 40. This position has been stated times without number in the decisions of this Court. For instance, in Njoroge v Gitau & 3 Others [2023] KECA 417 (KLR) the Court rendered itself thus: “ 32. In the instant case, the deceased died before the promulgation of the Law of Succession Act. https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1974/eng@2026-09-25 7

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However, the distribution of the estate should proceed so far as possible in accordance with the provisions of the Act, which denes a dependant in section 29 (a) as follows: “For purposes of this part, “Dependant” means a) 33. the wife or wives, or former wife or wives, and the children of the deceased whether or not maintained by the deceased immediately prior to his death.” This section does not distinguish between children who are either sons or daughters, married or unmarried. Neither does it discriminate between children of the deceased on the basis of sex or marital status. It is discriminatory and unconstitutional to suggest that married daughters of a deceased have no right to get a share in their father’s estate. Such submission has no place in modern society. We nd and hold that the learned Judge did not err and this ground of appeal fails.” 41. Similarly, in Peter Karumbi Keingati & 4 Others v Ann Nyokabi Nguthi & 4 Others [2015] KECA 785 (KLR), the Court rejected the argument that married daughters should be excluded because they may inherit from their husbands’ families. The Court was arming that there was no basis for giving daughters a lesser share, let alone excluding them altogether, from their father’s estate. 42. Accordingly, we nd that the appellant’s attempt to exclude his married sisters from their father’s property solely because they are married has no legal basis. Their marital status did not extinguish their right to inherit, and the learned Judge was correct to include them in the distribution of the estate. 43. Having stated the above, we nd that the learned judge properly evaluated the evidence and applied section 42 of the LSA correctly. The mode of distribution was supported by the evidence and the applicable law, and there is no basis for us to interfere with her ndings. 44. Consequently, we nd that this appeal has no merit and is dismissed. Being a family matter, we make no orders as to costs. DATED AND DELIVERED AT NYERI THIS 25TH DAY OF SEPTEMBER, 2026. S. ole KANTAI JUDGE OF APPEAL .............................. L. ACHODE JUDGE OF APPEAL .............................. KATWA KIGEN JUDGE OF APPEAL I certify that this is a true copy of the original Signed DEPUTY REGISTRAR https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1974/eng@2026-09-25 8

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