James Mburu Gachomo v Jacinta Wambui Kariuki

a) The learned trial magistrate erred in fact and law in finding that the appellant was not a beneficiary of the deceased yet he is the son of the deceased. b) The learned trial magistrate erred in fact and in law in finding that the respondent did not conceal any facts while prosecuting the present succession cause. c) The learned trial magistrate erred in fact and in law in finding that the deceased had two properties which was not proven by way of evidence. d) The learned trial magistrate erred in fact and in law in finding that the deceased had settled his two wives in his lifetime and therefore erroneously determining that the respondent was the sole beneficiary of the deceased. 3. Parties put in written submissions to dispose of the appeal. Appellant’s Submissions 4. The appellant submits that he and the respondent are siblings with him being the first born and only son of the deceased’s first wife Reginah Muthoni Gachomo whereas the respondent is the only child of the second wife Joyce Muthoni Gachomo. Thus, being a child of the deceased, HC. FAMILY APPEAL NO. E026 OF 2024 PAGE 2

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the appellant argues that he is a dependant of the deceased pursuant to section 29 of the Law of Succession Act. 5. The appellant submits that the respondent while applying for petition of letters of administration concealed the children of the first house and indicated that the deceased was survived by herself and her mother only. Thus the trial court ought to have revoked the grant issued on 18/4/2016 and confirmed on 17/7/2017. To support his averments, the appellant refers to the case of Re Estate of George Koome Kubai (Deceased) 2022 KEHC 1507 (KLR). 6. The appellant argues that the trial court erred by holding that the deceased had two properties and that before his demise he had settled his wives in the properties respectively. The appellant argues that he bought LR. No. Loc4/Kiranga/696 and produced an abstract of title to the said property showing that he was the first registered owner. Further respondent’s when mother he the deceased brought them married the on No. LR. Loc4/Kiranga/258 where the appellant and his siblings were living, which was the only property of the deceased. The appellant submits that when the deceased died, the respondent’s mother began to harass his mother forcing him to relocate her to his land LR. No. Loc4/Kiranga/696. HC. FAMILY APPEAL NO. E026 OF 2024 PAGE 3

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7. Relying on the case of Re Estate of Mwangi s/o Ngamba alias Mwangi Ngamba (Deceased) (2015) eKLR, the appellant submits that the wishes of the deceased were that the respondent’s mother would till the land until her demise and thereafter the property would be taken by the appellant who was the only son. The appellant further submits that the suit property ought to be shared with all his siblings including the respondent. The Respondent’s Submissions 8. The respondent submits that the deceased had distributed his properties during his lifetime allocating LR. No. LOC.4/KIRANGA/696 to the appellant’s mother which was later registered to the appellant’s name and LOC.4/KIRANGA/258 to the respondent’s mother. The allocation was not contested by the appellant at the time and the burial of each wife on their respective parcels further corroborates the deceased’s intention. Thus, the respondent argues that her acquisition of the grant and registration of the parcel in her name was consistent with the law. Further, the trial court correctly applied Section 42 of the Law of Succession Act and therefore the appellant having already received his share through his mother cannot claim from the estate again. 9. The respondent argues that there was no concealment or misrepresentation of facts as she petitioned for letters of HC. FAMILY APPEAL NO. E026 OF 2024 PAGE 4

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grant based on facts known and verifiable through documentary evidence including land records and the deceased’s lifetime distribution. 10. The respondent submits that the learned magistrate carefully considered affidavits, oral testimony, land documents and the cultural context. The appellant and his witness PW2, expressed discriminatory views regarding her right to inherit citing gender and alleged non biological status and the trial court rightfully held that a daughter has equal rights under succession law and Article 27 of the Constitution of Kenya. 11. The respondent submits that the appellant’s witness confirmed that the deceased owned and distributed two parcels. Further, the green card entries support the existence and allocation of both parcels. Issue for determination 12. The main issue for determination is whether the appeal has merit. The Law 13. 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: HC. FAMILY APPEAL NO. E026 OF 2024 PAGE 5

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“…..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.” 14. 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. 15. The foregoing cases show that the appropriate standard of review established therein can be stated in three complementary principles:HC. FAMILY APPEAL NO. E026 OF 2024 PAGE 6

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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. 16. Section 76 of the Law of Succession Act gives the court powers to revoke a grant provided the conditions stipulated therein have been met. It states that:A grant of representation, whether or not confirmed, may at any time be revoked or annulled if the court decides, either on application by any interested party or of its own motion:a) That the proceedings to obtain the grant were defective in substance; HC. FAMILY APPEAL NO. E026 OF 2024 PAGE 7

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b) That the grant was obtained fraudulently by the making of a false statement or by the concealment from the court of something material to the case; c) That the grant was obtained by means of an untrue allegation of a fact essential in point of law to justify the grant notwithstanding that the allegation was made in ignorance or inadvertently; d) That the person to whom the grant was made has failed, after due notice and without reasonable cause either:i. To apply for confirmation of the grant within one year from the date thereof, or such longer period as the court has ordered or allowed; or ii. To proceed diligently with the administration of the estate; or iii. To produce to the court, within the time prescribed, any such inventory or account of administration as is required by the provisions of paragraphs (e) and (g) of section 83 HC. FAMILY APPEAL NO. E026 OF 2024 or has produced any such PAGE 8

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inventory or account which is false in any material particular; or iv. The grant has inoperative become useless through and subsequent circumstances. 17. The circumstances in which a grant can be revoked were discussed in the case of In the Matter of the Estate of L.A.K. (Deceased) [2014] eKLR as follows:“Revocation of grants is governed by Section 76 of the Law of Succession Act. The relevant portions of Section 76 are paragraphs (a), (b) and (c) since the issues raised relate to the process of the making of a grant. A grant may proceedings defective, leading or were up be revoked to its attended where the making by fraud were and concealment of important matter, or was obtained by an untrue allegation of a fact essential to the point.” 18. Notably, the power to revoke or uphold a grant is a discretionary on part of the court but must be based on the weight of evidence. This principle was enunciated in the persuasive decision in HC. FAMILY APPEAL NO. E026 OF 2024 PAGE 9

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Albert Imbuga Kisigwa vs Recho Kavai Kisigwa Succession Cause No. 158 of 2000 where Mwita J stated:“Power to revoke a grant is a discretionary power that must be exercised judiciously and only on sound grounds. It is not discretion to be exercised whimsically or capriciously. There must be evidence of wrong doing for the court to invoke section 76 and order to revoke or annul a grant. And when a court is called upon to exercise this discretion, it must take into account interests of all beneficiaries entitled to the deceased’s estate and ensure that the action taken will be for the interest of justice.” 19. Applying the foregoing principles to the present case it is important to cite the brief facts of this case. The deceased died on 1st May 1989 and the respondent petitioned for letters of administration intestate in Thika CM Succession Cause No. 512 of 2015. The said grant was issued on 18th April 2016 and confirmed on 14 th July 2017. The appellant herein is the respondent’s step brother and he sought for revocation of the grant on grounds that the grant was obtained fraudulent and by concealment of facts as the respondent concealed that the deceased was survived by two wives and six children. The deceased was married to two wives, Regina Muthoni being his first wife and together they had five children namely- James Mburu Gachomo (the appellant), Charity Njeri Mburu, Wanjiru, HC. FAMILY APPEAL NO. E026 OF 2024 PAGE 10

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Mary Ngechu and Nduta. The second wife was named Joyce Muthoni Gachomo and they had one child, Jacinta Wambui Kariuki, the respondent herein. 20. I have perused the court record and noted that the respondent as he applied for the grant of letters of administration listed herself and her mother as the only survivor of the deceased. The only asset of the estate LOC.4/KIRANGA/258 was listed and the administrator named herself as the sole beneficiary. The respondent led evidence that the deceased had two parcels of land being LOC.4/KIRANGA/696 and 258. She further led evidence that during the lifetime of the deceased, he distributed his two parcels of land and bequeathed LOC.4/KIRANGA/696 to the first wife and LOC.4/KIRANGA/258 to the second wife. To support her averments, the respondent produced minutes showing that the deceased had shared out the two parcels of land between his two wives. The respondent stated that the first wife was buried on her parcel of land as allocated. The same case applied to the second wife. The respondent produced the green card for LOC.4/KIRANGA/696 which showed the deceased was the registered owner of the parcel of land and later the appellant became the proprietor. 21. I have also noted that the appellant argues that LR. No. LOC.4/KIRANGA/696 is his land having purchased it. HC. FAMILY APPEAL NO. E026 OF 2024 PAGE 11

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However, the appellant did not adduce any evidence of the alleged sale of the land to him. His witness, PW2 said on cross examination, that the deceased had two parcels of land of which he shared to his wives. He who alleges must prove and the appellant failed to prove that he purchased the said land. Furthermore, the green card shows that the land first belonged to his father the deceased and was later transferred to the appellant. This statement supports the evidence of the respondent that the deceased shared out his land in his lifetime to his two wives. However, the appellant’s evidence was that the deceased distributed his two parcels of land during his lifetime. As such, since the deceased had already bequeathed to the first house L.R. LOC.4/KIRANGA/696, the said family were not entitled to inherit from LOC. 4/KIRANGA/258. Section 42 of the Law of Succession Act, demonstrate that in the event of distributing property amongst beneficiaries, the court will take into consideration any prior gifts bequeathed to beneficiaries during his lifetime. Thus, the appellant should not argue that he was left out of the succession proceedings for he had taken his late mother’s land that the deceased gave during his lifetime. The respondent ought to have just given notice to the appellant as he filed the cause but was not supposed to give a share to the appellant. It is noted that the appellant’s siblings did not dispute the distribution of the estate which supports the contentions that the deceased had distributed his two parcels during HC. FAMILY APPEAL NO. E026 OF 2024 PAGE 12

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his lifetime. Accordingly, the appellant has failed to establish that the grant was obtained through fraudulent means or concealment of facts. The magistrate correctly found that there was no ground under Section 76 of the Act that was established by the applicant. 22. The appellant further argues that the respondent is not entitled to inherit as the appellant is the only son of the deceased. The law is clear that all children of the deceased are equal before the law irrespective of their gender or their marriage status. Article 27 of the Constitution prohibits all forms of discrimination on grounds of sex, religion, race and so on. Both female and male children of the deceased are entitled to equal shares of the estate of the deceased. The Law of Succession does not make a between the children of the deceased on grounds of gender. In Re Estate of Solomon Ngatia Kariuki (Deceased) (2008) eKLR Makhandia J (as he then was) stated:The LSA does not discriminate between the female and male children or married or unmarried daughters of the deceased person when it comes to the distribution of his estate. All children of the deceased are entitled to state a claim to the deceased’s estate. In seeking to disinherit the protestor under the guise that the protestor was married, her father, brothers and sisters were HC. FAMILY APPEAL NO. E026 OF 2024 PAGE 13

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purportedly invoking a facet of an old Kikuyu customary law. Like most other African customary laws is based against women and indeed tend to bar married daughters from inheriting their father’s estate. The justification for this rather archaic and primitive customary law demand appears to be that such married daughters should forego their father’s inheritance because they are likely to enjoy inheritance of their husband’s side of the family. 23. Thus, the assertions by the appellant that he was the only son of the deceased and as such was entitled to inherit the deceased’s estate solely is not supported by the law. There is no law that prohibits married women from inheriting their parents’ property. beneficiaries equally. The law treats all Article 27 of the Constitution prohibits discrimination as I have pointed out. The respondent was entitled to equal rights of inheritance from the deceased just as the appellant. 24. It is my considered view that the magistrate did not err in her ruling dismissing the appellant’s Summons for Revocation of grant dated 6th July 2022. 25. I find no merit in this appeal and I hereby dismiss it. 26. Being a family matter, each party shall meet their own costs. HC. FAMILY APPEAL NO. E026 OF 2024 PAGE 14

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27. It is hereby so ordered. JUDGMENT DELIVERED VIRTUALLY, DATED AND SIGNED AT THIKA THIS 26TH DAY OF JUNE 2025. F. MUCHEMI JUDGE HC. FAMILY APPEAL NO. E026 OF 2024 PAGE 15

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