Jane Muthoni Kinyua v Monica Wanjiku Muchira

3. v. Lydia Kuthii Muchira. vi. Jane Muthoni Kinyua. vii. Esther Wambui Migwi. viii. Nancy Wawira Muriithi. ix. Stephen Mbugua (deceased) x. Simon Muriuki (deceased) The two deceased sons left the following surviving them: i. Rose Gichugu Nyaga (widow of Simon Muriuki). i. Joseph Gichobi Mbugua. ii. Charity Wambura Mbugua. iii. Eunice Wawira Mbugua. Children of Stephen Mbugua iv. Bernard Wachira Mbugua. v. Peter Murimi Mbugua. vi. Albert Waweru Mbugua. 4. The widow of Stephen Mbugua also passed on. 5. Charity had three (3) children with the deceased namely: 6. i. Stephen Mbugua (deceased), ii. Jane Muthoni Kinyua (the protestor) and iii. Esther Wambui Migwi. Jemima had seven children namely: a. Cicilia Njoki Njogu. b. Beth Wambere Nyaga. c. Susan Wamunyu Mugo. d. Monica Wanjiku Muchira. e. Lydia Kuthii Muchira. f. Nancy Wawira Muriithi. g. Simon Muriuki Case before the trial court. 7. A grant of letters of administration of the deceased’s estate was issued to Monica Wanjiku Muchira, the respondent herein and Jane Muthoni Kinyua, the appellant herein on 8th April 2015. 8. The deceased’s estate comprises of only one property being Land Parcel Number Ngariama/ Thirikwa/14 measuring approximately 7 acres. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18298/eng@2025-11-26 2

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9. One of the administrators, Monica Wanjiku Muchira, filed summons for confirmation of grant dated 26th October 2015 listing all the above as beneficiaries and/or dependents. She proposed that the estate of the deceased be divided equally among the deceased’s ten children. 10. The consent to confirmation of grant was signed by the following: i. Cicilia Njoki Njogu. ii. Beth Wambere Nyaga. iii. Susan Wamunyu Mugo. iv. Lydia Kuthii Muchira. v. Nancy Wawira Muriithi. 11. The rest of the beneficiaries and/dependents did not sign the consent form. 12. Jane Muthoni Kinyua, the appellant herein filed an affidavit of protest sworn on 9th November 2015 to the summons for confirmation of grant. Among the issues she raised was that the land ought to be shared between the two houses of the deceased as he died in the year 1979. 13. The deceased was from the Kikuyu community. With two wives he therefore had two houses. He died on 20th July 1979 before the Law of Succession Act (Cap. 160) Laws of Kenya came into effect on 1st July 1981. 14. The trial court conducted a viva voce hearing of the summons for confirmation of the grant and the protest. 15. The hearing started with the protest. 16. The appellant herein PW 1, Jane Muthoni Kinyua gave her evidence and called one more witness PW 2, Alfred Ireri Njeru. 17. It was the protestor’s position that the land should be shared between the two houses of the deceased equally. So that each gets 3½ acres each. She said this was based on the fact that upon their father’s demise, each house was using the land in that proportion and that was in accordance with Kikuyu customary laws. 18. In cross-examination, the protestor said that her sister Esther Wambui Migwi supported her proposal even as she was not present in court. She said that she was Kikuyu and she was conversant with Kikuyu customary laws which provided that married women do not get land from their fathers. She however said that law was unfair to women. 19. The protestor denied that her proposal was based on the fact that they were only three children in their house and in her proposal, children of their house will get bigger shares than those from the second house. She said that she is married and lives in her matrimonial home but she does farming on one acre of their household’s share of their late father’s land, her sister Esther farms on one acre and their late brother’s children stay on 1½ acres. She also said that the land had not been sub-divided but that their father shared the coffee farm into two and shared the total coffee stems equally between the two houses and planted euphobia to mark the boundary. She also said that currently each house uses 3½ portion of the land. 20. PW 2, Alfred Ireri Njeru said he was 78 years old Kikuyu male. He testified that he was conversant with Kikuyu customs and traditions. He said that upon the demise of a polygamous Kikuyu man, his https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18298/eng@2025-11-26 3

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estate was to be sub-divided equally amongst the houses. In this case, the deceased’s estate was to be shared equally between the two houses and children inherited their mother’s share. He said that once married, women were not given a share of their father’s land but nowadays they are given. 21. The petitioner/respondent herein Monica Wanjiku Muchira then testified. She did not have another witness to call. She testified that the estate should be shared in equal shares among the deceased’s ten children. 22. She said that upon their father’s death each of his wives was utilizing a different portion of the land but she was not sure whether they were equal or not but one of them had a larger share than the other and one of them had more stems of coffee than the other. She said that the land was not subdivided. 23. In hearing the summons for confirmation of the grant the trial court began with taking the evidence of the protestor contrary to the express provisions of Rule 41(1) of the Probate and Administration Rules which provides that the court “… shall then hear the applicant and each protester and any other person interested, …” an indication that the petitioner who is the applicant for summons for confirmation of grant ought to have been the first one to be heard since in any case the application for confirmation was hers. 24. Even though the procedure adopted by the trial court to start the hearing of the summons for confirmation of the grant with the protestors was flawed, I find that no prejudice was occasioned to any of the parties who participated and so nothing much turns on that issue. 25. The issue in contention between the appellant and the respondent was only on the mode of distribution of the deceased’s estate. The appellant maintained that the estate should be distributed equally between the two houses whereby each household will get an equal share. The respondent/ petitioner on her part maintained that the property should be distributed in a manner whereby each child will get an equal share. 26. The learned trial magistrate found that the only issue for determination was whether the estate should be shared equally between the two houses of the deceased or equally among the ten children. 27. In considering the matter, the learned trial magistrate in her judgment held that the estate should be distributed, equally among the ten children of the deceased. 28. The appellant was dissatisfied with the decision, and filed the present appeal through the memorandum dated 17th April 2018 based on the following grounds: i. the learned trial magistrate erred in law and fact by failing to appreciate that the deceased having died in 1979 the substantive law governing the distribution of his estate is Kikuyu customary law. ii. the learned trial magistrate erred in law and fact by failing to take into account the proposed mode of distribution filed by the protestor. iii. the learned trial magistrate erred in law and fact by finding that Kikuyu customary law on distribution of a deceased polygamous man’s estate was repugnant to justice and morality. iv. the learned trial magistrate seriously misdirected himself when he stated that the petitioner’s mother had only daughters when in fact she had a son. v. the learned trial magistrate erred in law and fact by finding that since the land of the deceased was registered under statutory law being the Registered Land Act (cap. 300) Laws of Kenya, then it could not be subject to customary law. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18298/eng@2025-11-26 4

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29. vi. the learned trial magistrate erred in law and fact by failing to consider the protestor’s evidence and that of her witness as well as her submissions. vii. the learned trial magistrate erred in law and fact by dismissing the protest against the weight of the evidence. She therefore prays that the judgment of the trial court delivered on 13th September 2017 be set aside and substituted with an order confirming the grant as per the protestor’s proposal together with an award of costs of the appeal. Submissions 30. The appeal was disposed of by way of written submissions filed by learned counsels for both parties. I have considered the same in the analysis following. 31. Learned counsel for the appellant submits that the deceased having died in the year 1979, before the Law of Succession Act came into force, his estate ought to be distributed in accordance with Kikuyu customary law whereby it would be equally divided between the two houses as per the evidence of PW 2 who was conversant with Kikuyu culture and customs. He submits further that there is nothing repugnant to morality and justice in that mode of distribution, contrary to what the trial court stated. 32. On the finding by the learned trial magistrate that the respondent’s mother’s household had no son, I agree with the learned counsel that this was a misapprehension of evidence by the learned trial magistrate as evidence by PW 1, PW 2 and DW 1 was that each house had a son. 33. I also agree with learned counsel for the appellant that the learned magistrate’s holding that since the parcel of land was registered under the RLA then it was not subject to Kikuyu customary law. That was a misdirection and that finding has to be and is hereby set aside. 34. Learned counsel submits further that according to the evidence of the respondent, the deceased had shown each wife a separate portion of land where to cultivate and this meant that the intention of the deceased was to have each house inherit his parcel of land in equal shares as per the Kikuyu customary law. 35. Learned counsel for the respondent on his part submits that in his view, the key issue in this appeal is what law ought to apply with regard to the distribution of the estate of the deceased who died intestate in 1979 and had two wives. His answer to that question is that the Law of Succession Act (Cap 160) Laws of Kenya would apply post 1981 for the reasons that because the Kikuyu Customary Law that the appellant herein wanted applied discriminated against Kikuyu women and denied them, the appellant included, the right to inherit their father's property by virtue of being women hence all land was solely inherited by sons only and where there were none, by the deceased’s brothers. Secondly, the Kikuyu Customary Law also discriminated against married women by categorically providing that married women should not inherit their father's property. Learned counsel submits further that it was on that basis that in coming to court, the appellant as protestor relied on the Law of Succession Act to claim inheritance as a daughter and child of the deceased. However, she turned around when it came to sharing the property between themselves as siblings. Learned counsel therefore submits that fairness dictates that the ten children of the deceased share his estate equally. Duty of appellate court on a first appeal 36. This being a first appeal, the duty of this court is to re-evaluate, re-analyze and re-consider the evidence and draw its own conclusions, bearing in mind that it did not see witnesses testifying and therefore give https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18298/eng@2025-11-26 5

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due allowance for that. This is the position as held in Selle & another vs. Associated Motor Boat Co. Ltd & others [1968] E.A at page 126 on a first appeal from the High Court to the Court of Appeal that: “ 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. 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. In particular, this court is not bound necessarily to follow the trial judge’s findings of fact if it appears either that he has 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 Mohamed Sholan (1955), 22 E.A.C.A. 270)”. 37. I am well guided by these principles in the consideration and determination of this appeal. Analysis and Determination 38. Section 2 of the Law of Succession Act provides with respect to its application to succession proceedings as follows: “ 2. Application of Act 1. Except as otherwise expressly provided in this Act or any other written law, the provisions of this Act shall constitute the law of Kenya in respect of, and shall have universal application to, all cases of intestate or testamentary succession to the estates of deceased persons dying after the commencement of this Act and to the administration of estates of those persons. 2. The estates of persons dying before the commencement of this Act are subject to the written laws and customs applying at the date of death, but nevertheless the administration of their estates shall commence or proceed so far as possible in accordance with this Act.” 39. It is therefore clear that the estate of any person who died before July 1, 1981, is subject to written laws and customs applying at the date of death, but with a rider that the administration of their estates shall commence or proceed, so far as possible, in accordance with the Law of Succession Act. (see the case of Njoroge v Gitau & 3 others [2023] KECA 417 (KLR)). 40. It is the evidence of the appellant that during his lifetime, the deceased had already subdivided his said property between the two households and the family members had settled in their respective portions. This evidence was not disputed by the respondent. It is not contended by the respondent that such distribution of the land did not adequately provide for the beneficiaries. There is no evidence that any of the beneficiaries had raised any issue with the deceased over the subdivision while he was alive. 41. The learned trial magistrate correctly observed that distribution of the estate in a manner that would be discriminatory to any of the beneficiaries. Indeed, this was the observation of the Court of Appeal in the case of Njoroge v Gitau & 3 others [2023] KECA 417 (KLR) that: “ The learned Judge, cognizant of and based on the principle of equality envisaged in the Constitution of Kenya, 2010 gave orders for the administration of their estates to proceed as https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18298/eng@2025-11-26 6

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far as possible in accordance with the Law of Succession Act. Article 27 of the Constitution prohibits any form of discrimination on the basis of race, sex, marital status, or culture. Under Article 27, the people of Kenya did away with discriminatory practices such as those advanced by the appellant, that married daughters should not be considered in the distribution of the estate of a deceased person because they are married.” 42. The learned trial magistrate found that the Kikuyu customary law was discriminatory of daughters when it comes to inheritance as it was patrilineal. The Court of Appeal considering this issue in the case of Peter Karumbi Keingati & 4 others v Ann Nyokabi Nguthi & 4 others [2015] KECA 785 (KLR) had this to say that: “ But perhaps a clearer indication of the new constitutional dispensation’s inclination, in the event of any conflict between its pro-equality and non-discrimination values and those of customary laws and cultural practices, is provided by Article 2(4), which declares: “Any law, including customary law, that is inconsistent with this Constitution is void to the extent of the inconsistency, and any act or omission in contravention of this Constitution is invalid.” [Emphasis added]. As we understand it, the provisions of the Constitution on non-discrimination and equality are meant to address, not abstract and theoretical postulates, but very real problems of discrimination, exclusion and marginalization rooted in and perpetuated by the realities of our society, including our cultures and customary laws and practices.” 43. However, it is important to note that the dispute herein is not about sons and daughters where sons usually wanted to inherit their deceased parents’ property to the exclusion of the daughters or to give daughters smaller shares mostly on account of their being married and settled. It is also not about one child as a beneficiary wishing to disinherit others. For me, it is about a deceased’s property that had already been subdivided and beneficiaries settled on their respective portions. Each of the two houses had its share of the property. None of them raised an issue with the deceased during his lifetime complaining that he or she had not or had not been adequately catered for in spite of their difference in numbers in the respective houses. 44. In the case of In the Estate of Mwangi (Deceased) [2018] e KLR where the Court cited with approval the case of Kanyi Muthiora v Maritha Nyokabi Muthiora [1984] KECA 23 (KLR) it was stated that under Kikuyu customary law of inheritance observance of equality amongst the different households of the deceased is the cardinal principle. The property is shared equally amongst the houses of the deceased regardless of the number of children in each house. Chesoni Ag JA put the issue thus: “ It was immaterial whether the suit land was inherited by Mathiora from his father or purchased by him. Upon his death whatever land he owned had to be inherited in accordance with the Kikuyu customary law unless he had disposed of it by a will before his death which he did not. It is settled Kikuyu customary law that the estate of a deceased intestate polygamous man is inherited according to the houses. Each house gets an equal share and a house is constituted by each wife. The children of each house then share their portion equally.”(emphasis by Italics by this court). 45. That case was decided by the Court of Appeal in 1984 where the deceased had died in 1954. 46. There is no doubt that applying Kikuyu customary law of inheritance as enunciated above can lead to children in one house getting a bigger share of the property than the other because they are less in number. I agree with the learned trial magistrate that this would amount to discrimination on grounds https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18298/eng@2025-11-26 7

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of culture and birth. Culture because the Kikuyu Community Customs dictate that property of a deceased person be distributed among the households without regard to the number of children in each household and birth because they were born of different mothers. 47. However, the respondent agreed with the appellant in her evidence and supported by her witness Alfred Ireri Njeru that the deceased while he was alive, sub-divided his land into two portions between his two houses and since then the families had been cultivating their respective portions as such. Whereas the protestor said that the portions were equal, the petitioner said that they were not equal. All the same, both were in agreement that each household had a distinct and identifiable portion that they were cultivating. 48. Considering a similar issue in the case of Philis Michere Mucembi V Wamai Muchembi [2010] KEHC 357 (KLR) the High Court considering this issue in circumstances similar to the present one held that: “ … from the evidence adduced before the trial court, that the deceased had already subdivided his land to the 2 widows equally before he died and that must have been because that is what his customs mandated him to do. That arrangement was not against the law, nor was it repugnant to justice and morality. It ought to have been respected.” 49. I am persuaded to follow this decision where the facts are almost on all fours with the present case. 50. In the present case, the issue is on the equitable distribution of the estate between children of the deceased where this had already been done during the deceased’s lifetime in accordance with Kikuyu customary law where each house received one half share of the estate. In this case, half share does not mean equal share. None of the beneficiaries seemed to raise any issue with the same. I have not seen any claim by any of the beneficiaries that they will be left out of the distribution of the estate if the mode proposed by the appellant was adopted. None of them, not even the respondent has claimed that they were not adequately catered for. I therefore do not find, as as opposed to the learned trial magistrate’s finding, any form of discrimination in the mode of distribution proposed by the appellant, that is, according to what the deceased had bequeathed to each household during his lifetime. Within the households the property should then be distributed equally among the children. 51. Consequently, I find that the decision of the learned trial magistrate to distribute the property equally amongst the beneficiaries without regard to the prior distribution by the deceased is not tenable and the decision has to be and is hereby set aside. The appeal succeeds to that extent. 52. The estate of the deceased shall be distributed as per the proposal of the appellant herein where each house will get one half share of the estate. For emphasis, this does not mean equal share but the share each was occupying and cultivating at the time of the deceased’s death and within the houses each beneficiary will get an equal share. The confirmation of the grant shall therefore proceed on those lines. 53. This being a family matter it is ordered that each party will bear her costs. DATED, SIGNED AND DELIVERED ON THE VIRTUAL PLATFORM, TEAMS THIS 26TH DAY OF NOVEMBER 2025. ANDAYI W. F. JUDGE In the presence of: Njagi (Ms) holding brief for Joe Kathungu for the Appellant. Otuke for the Respondent https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18298/eng@2025-11-26 8

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Ummu h/b for Job: Court Assistant. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18298/eng@2025-11-26 9

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