Kamau Kamara v John Kamau Mwangi & 1 other

Appellant’s Submissions 4. The appellant submits that although the respondents alleged that the deceased was also known as Kamau Kimani, they did not produce any documents to support their claim. According to the appellant, LR. No. Ndarugu/Kamunyaka/123 was not included in the list of assets of the deceased in the petition for letters of administration attached to the Supplementary Record of Appeal nor in the Summons for Confirmation of Grant. Additionally, the certificate of official search for the said land shows that the property belongs to the appellant. The appellant further argues that one of the sons of the deceased, Johana Ndegwa Kamau has admitted in his Further affidavit that the said suit land does not belong to the deceased and should not have been included in the estate of the deceased. The appellant refers to Section 71(2)(d) of the Law of Succession Act, Rule 41(3) of the Probate and Administration Rules and the case of Succession Cause No. 15 of 2010 Busia High Court In the Estate of Francis Omuzee Khasindu (Deceased) and submits that the court ought to have postponed the summons for confirmation for the Environment and Land Court to determine the issue of ownership. 5. The appellant submits that the trial magistrate erred in holding that the assets of the deceased be shared by persons who are not named as beneficiaries of the deceased. As per the Chief’s letter, the beneficiaries of the deceased are Johana Ndegwa Kamau, Juliana Wanjiku Mwaura, Reginah Murugi Karanja, Margaret Nyambura Mwaura and Samuel Mwangi Kamau. The Respondents’ Submissions 6. The respondents submit that the appellant failed to explain how he acquired the suit property and he said that he has been living on the said land since 1969. The respondents submit that the suit land belongs to their grandfather, the deceased herein who is also known as Kamau Kamara having been registered as the owner on 1st February 1958. 7. The respondents argue that the appellant failed to produce a copy of his national identity card to compare the date of birth and dates appearing on the green card which would have painted a true picture on the age of the appellant and who between the appellant and the deceased was the bonafide owner of the suit property. On 23rd July 2018, the appellant informed the court that he had lost his national identity card but would produce the birth certificate and police abstract at a later date but he failed to honour his undertaking. 8. The respondent submits that the learned magistrate found that the appellant was claiming on behalf of his mother, Juliana Wanjiku Mwaura thus explaining the similarity in the names. Further proceedings of 7th January 2000 show that there was an application dated 27th October 1999 for rectification of grant with respect to the deceased’s name to read Kamau Kimani alias Kamau Kamara and the said application was allowed without contestation. 9. The appellant filed Supplementary Submissions and states that although the amended Grant of Letters of Administration dated 9/9/1997 show that the deceased was known as Kamau Kimani alias Kamau Kamara there were no documents produced in court to confirm that position. Issue for determination 10. The main issue for determination is whether the appeal has merit. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19732/eng@2025-06-26 2

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The Law 11. Being a first Appeal, the court relies on a number of principles as set out in Selle and Another vs Associated Motor Boat Company Ltd & Others [1968] 1EA 123: “ …..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 into account of particular circumstances or probabilities materially to estimate the evidence.” 12. In Gitobu Imanyara & 2 Others vs Attorney General [2016] eKLR the Court of Appeal stated 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. 13. From the above cases, the appropriate standard of review to be established can be stated in three complementary principles:a. That on first appeal, the Court is under a duty to reconsider and re-evaluate the evidence on record and draw its own conclusions; b. That in reconsidering and re-evaluating the evidence, the first appellate court must bear in mind and give due allowance to the fact that the trial court had the advantage of seeing and hearing the witnesses testify before it; and c. That it is not open to the first appellate court to review the findings of a trial court simply because it would have reached different results if it were hearing the matter for the first time. Whether the appeal has merit. 14. The record shows that deceased died in the year 1965 and Regina Murugi Karanja and Samuel Mwangi Kamau petitioned for letters of administration which was issued on 9th September 1997. Summons for Confirmation of Grant was filed on 16th February 1998 seeking for orders that the estate of the deceased comprising of LR. No. Ndarugu/GAKO/445, Ndarugu/GAKO E/T 146, CHANIA/KANYONI 420 and Ndarugu/Kamunyaka/123 be shared equally among the beneficiaries namely Juliana Wanjiku Mwaura, Regina Murugi Karanja, Margaret Nyambura Mwaura, Johana Ndegwa Kamau and Samuel Mwangi Kamau. One of the beneficiaries, the appellant herein filed an affidavit of protest and argued that he is the registered proprietor of LR. No. Ndarugu/Kamunyaka/123 and thus it should be removed from the estate of the deceased. The appellant argued that he has been in possession of the suit land since the year 1969 without any interruption. To support his claim he produced a search confirming the same and an affidavit by Johana Ndegwa Kamau, one of the beneficiaries supporting his protest. 15. On perusal of the record, the appellant is claiming his share in the estate through Juliana Wanjiku Mwaura, the deceased’s daughter in law makes him a grandson of the deceased. On further perusal of the record, the green card shows that the suit land was registered in the name of Kamau Kamara on https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19732/eng@2025-06-26 3

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1st February 1958. The appellant alleges to have been in possession of the suit land in the year 1969 but he has not led evidence how he acquired the said property. It is trite that he who alleges must prove, and the appellant has failed to prove how he acquired the land or how he came into possession. He failed to produce his national identity card which would have shown whether its particulars were reflected in the certificate of title as the proprietor. Additionally, if the said property was in the name of the appellant as he claims, why did he take possession of the same in the year 1969 yet he was the alleged proprietor in the year 1958? This court is not convinced by the line of argument the appellant took before the magistrate. The magistrate was not convinced either. The record shows that before the appellant was substituted with his mother, the late Juliana Wanjiku Mwaura, his mother had not laid any claim of the land in question LR. No. Ndarugu/Kamunyaka/123 or even claim that the property belonged to his son the appellant. Although it was not proved, the appellant may bear the same names as the deceased given he is the grandson. It is important to note that the petitioners in their application dated 27th October 1999 sought to have the grant rectified in respect of the deceased’s names to read Kamau Kimani alias Kamau Kamara. There was no opposition to the said application not even from the appellant who was well briefed of the matter was allowed. 16. It is therefore my considered view that the appellant did not prove that he was the registered owner of LR. No. Ndarugu/Kamunyaka/123 and thus the said property was found to form part of the estate of the deceased. 17. The appellant further argues that the trial court erred in holding that the assets of the deceased be shared by persons who were not named as beneficiaries of the deceased. I have perused the judgment and noted that the trial magistrate before distributing the estate noted that most of the beneficiaries of the deceased were deceased. The trial court then directed that the estate be distributed equally among the original beneficiaries namely Juliana Wanjiku Mwaura, Regina Murugi Karanja, Margaret Nyambura Mwaura, Johana Ndegwa Kamau and Samuel Mwangi Kamau and should any of the beneficiaries be deceased, their share of the estate be distributed equally amongst all their heirs or children. Thus, the trial court distributed the estate to the beneficiaries and provided for the children of any of the deceased beneficiaries which was in accordance with the law. 18. In my considered view, the appellant has failed to establish any of the grounds of appeal. The magistrate did not err in holding that the land L.R. Ndarugu/Kamunyaka/123 formed part of the estate of the deceased. 19. Consequently, I find no merit in this appeal and it is hereby dismissed. 20. The respondents shall have the costs of this appeal. 21. It is hereby so ordered. JUDGMENT DELIVERED VIRTUALLY, DATED AND SIGNED AT THIKA THIS 26TH DAY OF JUNE 2025. F. MUCHEMI JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19732/eng@2025-06-26 4

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