Rahab Mukuhi Nganga v Michael Kaguongo Minji

4. The Deceased was said to have been survived by the following persons. (1) Francis Wachira Njogu - Son (Deceased) (2) Grace Nyaguthii Ngari - Daughter (3) Anthony Mwangi Munge - Son (Deceased) (4) Maureen Michire Mburuki - Daughter (5) Michael Kaguongo Minji - Son (6) Stephen Kariuki Minji - Son (7) Paul Kanyeki Minji - Son (8) Joseph Iregi Minji - Son (9) Jane Wanjiku Minji - Daughter (10) Nancy Nyokabi Munene - Daughter-in-law (wife to Anthony Mwangi Minji (Deceased) (11) Lornah Wairimu Wachira - Daughter in law (wife to Francis Wachira Njogu (Deceased) (12) 5. Winnie Wanjugu Mwangi - Grand-daughter The estate of the Deceased comprised the following assets:(a) LR No. NYERI/ISLANDFARM/2xxx2 (b) LR No. NYERI/ISLAND FARM/2xxx9 (c) Co-operative Bank Shares 2000 in Number 6. Following the demise of the Deceased Grant of letters of Administration Intestate was on 5th July 2018 made to his son Michael Kaguongo Minji (hereinafter ‘the Administrator’). 7. On 8th January 2019 the Administrator filed a summons for confirmation of Grant. On 22nd February 2019 the Protestor Rahab Mukuhi Nganga (the Appellant herein) filed an Affidavit of Protest. 8. The Protest was heard in the Lower Court vide Nyeri CM Succession No. 256 of 2017. 9. On 20th May 2024 Hon. Edina N. Angima delivered a judgment in which she partially allowed the protest and directed that the Co-operative Bank shares be allocated to the Protestor to hold in trust for her son BN ( a minor). 10. Being aggrieved by this decision the Appellant filed this appeal which was premised on the following grounds;“ 1) The learned trial Magistrate erred in law and fact in awarding the appellant/ applicant cooperative shares to hold in trust for the minor which shares are uncertain and their existence has not been verified despite having found that the minor BN was indeed a beneficiary within the meaning of Section 29 of the Law of Succession Act. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/17779/eng@2025-11-28 2

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2) That the learned magistrate erred in law and fact in failing to distribute the estate of the deceased therein equitably thereby leaving out the minor BN. 3) That the learned trial magistrate erred in law and in fact when she failed to properly analyse the relevance or otherwise of the whole evidence that was tendered before her thus arriving at a wrong finding.” Analysis And Determination 11. I have carefully considered this memorandum of appeal as well as the record of Appeal filed in this matter. 12. This is a first appeal. It is settled law that the duty of the first appellate court is to re-evaluate the evidence which was adduced in the subordinate court both on points of law and fact and come up with its own findings and conclusion [see Peters -vs- Sunday post limited [1958] E.A 424] 13. In SELLE and Another -vs- Associated Motor Boat Company Ltd& Others [1968] 1 E.A 123 it was stated that “ An appeal to this court from the High Court is by way of 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 [the fact] that it has neither seen nor heard the witnesses and should make due allowance in this respect. In particular this court is not bound necessarily to follow the trial judge’s findings of fact if it appears that he has clearly failed on some point to take into account particular circumstances or probabilities materially to estimate the evidence.” 14. Likewise in Gitobu Imanyara& 2 Others -vs- Attornye General[2016] eKLR, the Court of Appeal stated as follows:“ An appeal to this 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 this respect.” 15. The instant appeal raises three issues for determination;(i) Whether the Appellant was a beneficiary of the estate of the Deceased. (ii) Whether the Appellants minor son was a beneficiary to the estate of the Deceased. 16. The Appellant was not claiming a share of the estate of the Deceased as a direct beneficiary i.e a child or spouse of the Deceased. She was claiming as a wife (widow) of Francis Wachira Njogu who was the son of the Deceased in this cause. In her evidence before the trial court the Appellant stated that she was a wife to one ‘Francis Wachira Njogu’ (hereinafter ‘Francis’) who was a son to the Deceased. The said Francis passed away on 11th March 2018. 17. The Appellant testified that she and Francis began to cohabit as man and wife in the year 2001 and that their union was blessed with a son BN who was born on 29th November 2006 at the Pumwani Maternity Hospital. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/17779/eng@2025-11-28 3

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18. The Appellant testified that prior to entering into a union with ‘Francis’ she had a daughter Purity Esther Wangari whom ‘Francis’ accepted as his own and provided for all her needs. 19. The Appellant stated that she was fully aware that ‘Francis’ had another wife named Lorna Wairimu Wachira with whom he had four (4) children but asserted that ‘Francis’ had married her as his second wife and that they cohabited as man and wife for a period of seventeen (17) years. 20. The Appellant therefore claimed that both she and her two (2) children were beneficiaries to the estate of the Deceased and protested their exclusion from the distribution of the said estate. 21. On his part the Administrator who was a brother to the late ‘Francis’ filed a Reply to the Affidavit of Protest dated 18th April 2019 in which he categorically denied that the Appellant was ever married to his late brother. The Respondent asserted that ‘Francis’ had only one wife Lorna Wairimu with whom he bore four (4) children. That having married his wife under statutory law Francis had no legal capacity to marry a second wife. 22. The Respondent also denied that the Appellant’s son had been fathered by Francis. In short he denied that the Appellant and/or her children had any rightful claim to the estate of the Deceased. The Respondent produced a copy of the Eulogy for Francis Wachira (page 42-43 of the Record of Appeal) in which no mention was made of the Appellant or her children. He stated neither the Appellant nor her children attended the burial of Francis in the family, home. 23. The Respondent confirmed that he did obtain letters of Administration for the estate of his late father and states that he has included all the genuine beneficiaries in the distribution. 24. It is trite law that he who alleges must prove. Section 107 of the Evidence Act Cap 80 Laws of Kenya provides as follows:“ 107(1) Whoever desires any court to given judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist. (2) 25. When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person.” The Appellant claimed that Francis had married her as his second wife. The Appellant therefore had the burden to prove that she was indeed married to Francis. The Appellant made no claim that she and Francis got married under statutory law (in church). The Appellant also conceded that at no time did Francis ever visit her parents and further admits that no dowry was paid to her parents in keeping with Kikuyu customary norms. In her evidence the Appellant stated “ He [Francis] had not paid my dowry. 26. The payment of dowry is a critical element in any customary union. What then was the nature of marriage between the Appellant and Francis? In the absence of evidence proving the existence of a statutory and/or customary marriage, the Appellant can only rely on a presumption or marriage through cohabitation. 27. In order to prove a presumption of marriage through a long period of cohabitation the Appellant would have had to call witnesses to testify that they knew the two as a couple. She did not call any such witnesses. No mention was made of the Appellant in the Eulogy for ‘Francis’ neither did she attend his https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/17779/eng@2025-11-28 4

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burial. Surely if the Appellant was the second wife of Francis as she claims then the family would have included her in the burial arrangements – she would have at the very least been mentioned in the eulogy. 28. Most pertinently the Respondent produced as evidence a copy of the marriage certificate issued by the Archdiocese of Nairobi confirming that Francis got married to his wife Lorna Wairimu at St Teresa’s Catholic Church in EastLeigh, Nairobi on 28th July 1985. No evidence was tendered to show or even to suggest that Francis and his wife ever divorced in a court of law. 29. Having procured a statutory marriage with his wife the said Francis had no legal capacity to enter into another marital union with the Appellant or anyone else. 30. All factors lead to the conclusion that the Appellant was not married to Francis and was not his wife at all. I therefore confirm the finding by the trial court that the Appellant had no claim as a beneficiary to the estate of the Deceased. 31. The next question is whether the Appellant’s son BN whom she claims was the biological child of ‘Francis’ was entitled to a share in the estate of the Deceased. 32. It must be borne in mind that the estate which is the subject matter in this suit is not the estate of Francis Wachira but rather is the estate of David Minji Ngari who was the ‘Father’ to Francis Wachira. Therefore any claim the minor child of the Appellant would have to this estate would be as the ‘grandchild’ of the Deceased in this cause. 33. In her judgment the learned trial magistrate went to great lengths to analyse and render a finding on whether the minor was the biological child of ‘Francis’ and whether the minor was entitled to a share of the estate of the Deceased. In my view this was all unnecessary labour by the trial court. 34. The minor in question would be seeking a share of the estate of the Deceased in his capacity as a child of ‘Francis’. The first question that arises is whether being a ‘grandson’ the minor has locus standi in the succession cause of his grand-father. The persons who have a proper interest in a succession cause are the direct heirs/beneficiaries who include the spouse and children of the Deceased. 35. The minor is neither the spouse or child of the Deceased David Minji. It is alleged that the minor is the son of Francis who himself was a son to the Deceased herein. 36. Where there is a dispute over paternity (as in this case) then the question of whether or not the minor was the biological child of ‘Francis’ can only be ventilated under the succession cause of Francis Wachira not under the succession cause for Francis’ father. 37. That is not say that a grand-child cannot inherit from the estate of his/her grandfather. In cases where the child of a Deceased person passes away then the grandchild of that Deceased may step into the shoes of his/her late parent and inherit the share of the estate that would have been due to their Deceased parent. 38. In the case of Cleopa Amutala Namayi v Judith Were Succession Cause 457 of 2005 [2015] eKLR Hon. Mrima, J. observed that:“ Be that as it may, under Part V of the Act grandchildren have no automatic right to inherit their grandparents….. The argument behind this position is that such grandchildren should inherit from, their own parents. This means that the grandchildren can only inherit from their grandparents indirectly through their own parents….. The only time where the grandchildren inherit https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/17779/eng@2025-11-28 5

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directly from their grandparents is when the grandchildren’s own parents are dead.” [Own emphasis] 39. Therefore the minor has no right to inherit directly from this estate. He only has a right to inherit out of the share of the estate allocated to his alleged father ‘Francis’. As such I find that the trial magistrate erred in allocating a share of the estate of the Deceased to the minor. 40. The minor is only entitled to claim out of the share of the estate allocated to ‘Francis’. In the summons for confirmation of Grant dated 8th January 2019 the widow of Francis Lorna Wairmu was allocated 1.32 acres of land. As such the minor could only claim a share out of this 1.32 acres allocated to the estate of the late Francis. The trial magistrate erred in allocating a share of the estate of the Deceased to the minor, separate from what had been allocated to the estate of Francis as represented by his widow ‘Lorna’ 41. That being the case the minor can only share a claim out of the 1.32 acres allocated to Francis’ family. This claim can only be ventilated in the succession cause for the late Francis Wachira and not in the cause. It is only in the succession cause of Francis Wachira that the question of whether or not the minor is the biological child of Francis can be heard and determined. In short the protestor has filed the claim for her son under the wrong estate. 42. Finally I have considered the evidence adduced by the Appellant as proof that Francis was the father of her child of her child and in my view that evidence fell short of proving her claim on a balance of probability. 43. The Appellant sought to rely on Birth Certificate Serial No. 0159086 (Page 30 of the record of Appeal), in which Francis Wachira is named as the child’s father as proof of paternity. I find that the trial court erred in placing reliance on this birth certificate for two reasons. Firstly a birth certificate does not amount to adequate proof of paternity. In RE: KAMAU MUIGAI (Deceased) [2018] eKLR Hon. Justice Musyoka stated that a Birth Certificate is not adequate proof of paternity. 44. Secondly the said Birth Certificate was issued four (4) months after the death of ‘Francis’ 45. Section 12 of the Births and Deaths Registration Act Cap 149, Laws of Kenya provides as follows:“ No person shall be entered in the Register as the father of any child except at the joint request of the father and mother or upon production to the Registrar of such evidence as he may require that the father and mother were married according to law or in accordance with some recognized customs.” 46. Given that he said Birth Certificate was obtained after the demise of ‘Francis’, there is no way Francis could be said to have been involved in the procurement of the said birth certificate or to have authorized the insertion of his name into the document. 47. In this modern age there exists a sure and direct way to prove paternity which is by way of DNA testing. 48. In Re: Estate Of Peter Muraya Chegealias Muraya Chege[2019] eKLR Hon Justice A. K. Ndungu observed that “ In this time of considerable scientific discovery, development and achievement, where a dispute arises as to the paternity of an individual, there is no better way to settle that issue with finality than through a dependable DNA test.” 49. No request for DNA testing was made by any of the parties in this cause. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/17779/eng@2025-11-28 6

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50. In conclusion I find that the learnt trial magistrate erred in allocating a share of this estate to the minor Biran Ng’ang’a. 51. Finally I find no merit in this appeal. I set aside the award/allocation of Co-operative shares made by the trial court to the minor. The certified of Confirmed Grant issued on 20th May 2024 is hereby revoked. For avoidance of doubt I direct that the estate of the Deceased is to be distributed in terms of paragraph (6) of the Affidavit in support of the summons for confirmation of Grant dated 8th January 2019. 52. Finally this appeal is dismissed in its entirety. This being a family matter each side will bear its own costs. DATED IN NYERI THIS 28TH DAY OF NOVEMBER 2025. ……………………………… MAUREEN A. ODERO JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/17779/eng@2025-11-28 7

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