Chweya Orina Patrobas v Albert Gichaba Chweya & 1 other

4. The appeal is premised on several grounds, primarily centered on the claim that the learned trial magistrate erred both in law and in fact by misinterpreting the provisions of Sections 29 and 76 of the Law of Succession Act and by disregarding the evidence on record. 5. The Appeal was canvassed by way of written submissions which I have considered. While the Appellant filed submissions to the appeal, the Respondents opted to rely on the submissions that they had presented before the trial court. Issues for Determination 6. I have carefully considered the record of appeal and the parties’ respective submissions. I find that the following issues arise for determination: a. Whether the trial magistrate erred in law and fact by holding that the respondents were dependants and bona fide beneficiaries of the estate of Florence Chweya Gisacho (deceased). b. Whether the learned trial magistrate misapplied Sections 29 and 76 of the Law of Succession Act. c. Whether the parcel Nyansiongo Settlement Scheme/662 forms part of the estate of the deceased or was separate property already distributed inter vivos. d. Whether the ruling of the trial court ought to be quashed and the appeal allowed. Analysis and Determination Whether the Respondents were Bona Fide Beneficiaries 7. The trial court held that since the respondents were the Appellant’s stepbrothers, they were beneficiaries of the deceased’s estate. The uncontested evidence on record from PW1, PW2, and DW1 however confirmed that the respondents were children of the 2nd and 4th wives of the late Chweya Orina, and not of Florence Gisacho. 8. Section 29 of the Law of Succession Act stipulates that “dependants” include the spouse, children, and such persons as were being maintained by the deceased immediately prior to her death. In the instant case, the respondents produced no evidence of dependency or recognition by the deceased. I therefore find that the learned magistrate erred by extending the definition of “child” to include stepchildren in the absence of any proof of dependency or express acceptance. 9. My finding aligns with the decision in FWK (Guardian ad litem for TK and SN Minors) v MWM & Another [2022] KEHC 16610 (KLR) where it was held that: “ The definition of ‘a child’ in Section 3(2) of the Law of Succession Act includes a child whom the deceased has expressly recognized or accepted as his own, or for whom he has voluntarily assumed permanent responsibility. Episodic support alone will not suffice.” 10. Applying the principle stated in the above cited case to the instant case, I find that the Respondents did not demonstrate that they had any express recognition or permanent dependency upon the deceased Florence Gisacho. Whether Section 29 and Section 76 were Misapplied 11. Flowing from my finding that the Respondents were not bona fide beneficiaries of the deceased, I find that the Appellant was justified in her argument that the trial magistrate misconstrued the provision of Section 29 of the Act by assuming that sharing a father automatically entitles all children to benefit https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19382/eng@2025-10-16 2

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from each wife’s estate. My take is that succession to a wife’s estate must be limited to her biological or adopted children unless dependency is proved. 12. Section 76 of the Act governs revocation of grants where fraud, concealment, or misrepresentation have been established. In this case, the record reveals no concealment by the Appellant when applying for the letters of administration, as the respondents had no legitimate claim to the 5th household’s share. I therefore find that the magistrate’s invocation of Section 76 of the Act was unsupported by evidence and contrary to law. 13. In Re Estate of Veronica Njoki Wakagoto (Deceased) [2013] eKLR, the court emphasized: “ The estate of a deceased woman devolves upon her children or those who were being maintained by her prior to death; stepchildren cannot claim unless dependency is proved.” Ownership of Nyansiongo Settlement Scheme/662 14. Evidence by PW1 and DW1 confirmed that their deceased father, Chweya Orina, had subdivided his property Nyansiongo Settlement Scheme/11 into seven parcels (Nos. 664–670) for each wife. Parcel 662 was specifically allocated to Florence Chweya Gisacho, who obtained title in her name. It is clear that Nyansiongo Settlement Scheme/662 formed part of Florence Chweya’s individual estate, separate from the father’s estate. It is also clear that in the scheme of sharing their father’s estate, the Respondents have their own distinct portions under their respective mothers’ shares. I find that the trial magistrate erred in law and fact by treating the entire family land as a common estate. 15. It is my finding that the trial court misdirected itself on both fact and law. The evidence on record overwhelmingly supports the Appellant’s position that the respondents were not dependants or beneficiaries of the deceased Florence Chweya Gisacho. 16. Accordingly, I make the following final orders: a. The appeal is allowed. b. The ruling of Honourable C. Ombija, S.R.M., delivered on 17th April 2024 in Keroka CM Succession Cause No. E09 of 2021 is set aside. c. It is hereby declared that the respondents, Albert Gichaba Chweya and Mogire Chweya, are not bona fide beneficiaries of the estate of Florence Chweya Gisacho (deceased). d. The parcel Nyansiongo Settlement Scheme/662 shall remain the property of the 5th household, comprising: e. 17. i. Chweya Orina Patrobas, ii. Gladys Kerubo Chweya, and iii. Teresa Moraa Chweya. The respondents shall bear the costs of this appeal and those of the lower court. Orders accordingly. JUDGMENT DATED, SIGNED AND DELIVERED AT NYAMIRA VIRTUALLY VIA MICROSOFT TEAMS 16TH DAY OF OCTOBER 2025. W. A. OKWANY JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19382/eng@2025-10-16 3

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