George Mbugua Kimari v Elizabeth Nyamweru Muthoni

c. 3. The learned trial magistrate erred in law and in fact in applying Sections 26, 27 and 28 of the Law of Succession Act to make provision for deceased dependants. Parties put in written submissions to dispose of the appeal. Appellant’s Submissions 4. The appellant submits that he was not aware of the proceedings in the High Court in Nairobi Succession Cause No. 1332 of 2011 as he was not served with any pleadings or documents. The appellant further submits that his brother and himself were the only beneficiaries of the estate of the deceased and thus the great grandchildren of Wamai Kigotho are not qualified to inherit from the said property. Wamai Kigotho was a step brother to his father Kimani Kigotho and that Wamai Kigotho was father to an only child, a girl by the name Wairimu who was married to Karanu Ndethi and the couple were blessed with two daughters. 5. The appellant submits that he was not able to appeal the decision in Thika MCCC 1082 of 2009 which found that the suit property was ancestral land as he was put in civil jail for three months. 6. The appellant submits that Wamai Kigotho sold his land parcels being LR. Nos. Kiganjo/ Kiamwangi/320 and Kiganjo/Kiamwangi/338 and he was only left with 1/6 share of LR. No. Kiganjo/ Kiamwangi/335 which he eventually sold to Njoroge Gichure after registration which he held as a proprietor in common with the deceased between April 1958 and December 1968. The respondent refers to Section 66 of the Law of Succession Act and submits that he was properly appointed as the administrator of the estate of the deceased and the respondent being a distant relative is a stranger in the estate and not a beneficiary to the estate. 7. The appellant argues that the trial court misapplied Sections 26, 27 and 28 of the Law of Succession Act by concluding that the respondent was a dependant and that trust was created because the deceased had allowed the respondent’s family to reside on the suit property. The appellant further argues that both Pauline and Teresia had already been married by the time their grandfather Wamai died in December 1968 and they are still at their matrimonial home. Further the respondent knew that her mother did not have any land left since their grandfather had sold their entire land. The appellant argues that allowing the respondent and her family to stay on the suit property did not infer a trust. 8. The appellant refers to the case of Isack Kieba M’inanga vs Isaaya Theuri M’Lintari & Another [2018] eKLR and submits that the nature of the holding of the land and the intention of the parties is what determines a customary trust which he argues the respondent did not demonstrate. The appellant argues that since the respondent is married, she belongs to her husband’s clan and therefore not entitled to the suit property. The Respondent’s Submissions 9. The respondent submits that the High Court in Nairobi Succession Cause No. 1332 of 2011, judgment was delivered on 14/6/2016 whereby the grant issued to the appellant herein was revoked because it was obtained fraudulently by gross misrepresentation and concealment of material facts by the appellant. The court further ordered cancellation of titles of subplots that had emanated from the said impugned certificate of confirmation of grant and directed that the matter be heard afresh. 10. The respondent relies on the case of Mbogo & Another vs Shah [1968] EA and submits that the trial court heard the matter and properly exercised its discretion and arrived at the correct findings which the appellant has not shown any cause on why this court ought to interfere with the decision. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19786/eng@2025-06-12 2

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11. The respondent submits that it is not contested that the only asset of the estate of the deceased LR. No. Kiganjo/Kiamwangi/3335 was originally registered in the name of Wamai Kigotho. upon his demise, the family agreed that 5/6 share of the said land be registered in the name of Kimani Kigotho who is a step brother to Wamai Kigotho. The subject land was ancestral land and thus Kimani Kigotho held the land in trust for the benefit of the family of Wamai Kigotho. The respondent further submits that the entire family of Wamai Kigotho have been in occupation of the subject land to date. Wamai Kigotho did not have a son and therefore the said parcel of land was registered in the name of the appellant. 12. The respondent argues that the parties herein are related and thus the members of the family of Wamai Kigotho are direct and legitimate beneficiaries of the deceased herein. Further the family members of Wamai Kigotho have been in possession of the subject land from time immemorial and members have been buried on the suit land namely Kimani Kigotho, Wanjiku Wamai and Pauline Muthoni Kimari. The respondent argues that the land was ancestral land and the said trust was pleaded and proven before the trial court. Further the trial court visited the land parcel and confirmed for itself before making its findings. 13. The respondent submits that it does not matter that she and her sisters were not married at the time as the law treats all children equally and therefore all beneficiaries are equally entitled to a share in the estate of the deceased. Further, the respondent submits that the findings in the trial court in CMCC No. 1082 of 2009 Thika and in Nairobi High Court Succession Cause No. 1332 of 2011 on trust in favour of the respondents has never been reviewed or set aside. 14. The respondent argues that the allegations by the appellant that he did not know of the proceedings in High Court Succession Cause No. 1332 of 2011 are not true as the court noted that he had been served but he failed to enter appearance. He was aware of the proceedings all the time and ignorance cannot be used as a defence in the instant case. 15. The respondent further argues that the said proceedings in the high Court are valid because in the year 2011, the magistrates court lacked the jurisdiction to handle applications for revocation of grant. Consequently, the trial court in Succession No. 93 of 2006 Thika was not wrong in relying and giving effect to the said orders of the High Court. Issue for determination 16. The main issue for determination is whether the appeal has merit. The Law 17. 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.” 18. 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 https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19786/eng@2025-06-12 3

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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. 19. 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. 20. The appellant filed a petition for letters of administration intestate in Thika CM Succession Cause No. 93 of 2006 and the same was issued on 18th May 2006 and confirmed on 17th September 2008. The appellant’s brother one Francis Kamau sought for revocation of the grant in High Court in Nairobi Succession Cause No. 1332 of 2011 on the grounds of fraud as the appellant failed to disclose that the deceased was survived by other beneficiaries. Further, Francis Kamau told the court that the suit property was ancestral land and that the deceased was holding it in trust for the family of Wamai Kigotho. Further the applicant therein argued that the proceedings to obtain the grant before the Chief Magistrates court was defective in substance as the magistrate did not have jurisdiction. 21. Whilst the appellant herein claims that he was not aware of the proceedings in the High Court or that his grant was revoked, the High Court noted that the appellant had not entered appearance despite being served and neither did he file any reply to the applicant’s allegations. The High Court then proceeded to consider the merits of the application and revoked the grant and directed that the matter be referred back to the magistrates court in Thika to be heard afresh. To date, the appellant has never appealed or set aside the ruling of the High Court. He never contested the fact that he was never served. 22. That notwithstanding, the appellant had filed a suit prior in the trial court being Thika MCCC 1082 of 2009 where he tried to block the burial of Pauline Muthoni Kinyajui, the respondent’s mother, on the suit land. The trial court visited the suit land and noted that a trust over the land could be inferred in the circumstances as the family of Wamai Kigotho still lived on the land. Notably, the appellant having initiated that case participated in the proceedings and did not appeal on the trial court’s findings that the suit land was ancestral land. 23. Furthermore from the record, it is evident that the appellant does not deny that the deceased and Wamai Kigotho were half brothers. In MCCC No. 1082 of 2009 evidence was led by Francis Kamau that the suit land was first registered in the name of Wamai Kigotho and after he passed away, the land was registered in the deceased’s name who was Wamai’s half brother to hold in trust for Wamai’s family. Furthermore, Wamai’s family still lived on the suit land and tilled the same. The record also shows that all the people that testified before the trial court including the protestor agreed that the land was originally owned by Wamai Kigotho. It is therefore, evident that the suit land was ancestral land and since the appellant has not appealed any of the decisions of the trial court and the high Court, the same orders remain valid. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19786/eng@2025-06-12 4

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24. Having found that the suit land is ancestral land, the beneficiaries and dependants of the family of Wamai Kigotho are entitled to benefit the same pursuant to Section 29(b) of the Law of Succession Act. The law is clear that all children are equal before the law irrespective of their gender or their marriage status. Article 27 of the Constitution prohibits all forms of discrimination on any basis. Both female and male children of the deceased are entitled to equal shares of his estate and the Law of Succession does not make a distinction between the children of the deceased, whether male or female, all are equal children. 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 purportedly invoking a facet of an old Kikuyu customary law. Like most other customary laws in this country they are always biased against women and indeed they 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. 25. The appellant admits that the respondent is a daughter to Wamae Kigotho, the brother to the deceased whose family lives on the land. The respondent has told the court that the appellant had blocked the burial of her mother Pauline Muthoni on the land but the court issued an order for the burial to take place there. It is imperative to note that appellant’s argument that since the family of Wamai Kigotho only comprised of a daughter who got married and gave birth to daughters who are all married and thus not entitled to inherit from the estate of the deceased is not supported by law or evidence. The appellant argues that the respondent is married and is not entitled to inherit from the deceased’s estate. The law does not discriminate on beneficiaries on grounds of sex or marital status. Article 27 of the Constitution prohibits discrimination on grounds of sex and this provision supports the case of the respondent herein. 26. The appellant claims that he was not notified of the High Court Succession Case. The respondent says he was duly served and this was confirmed by the magistrate in Thika CM Succession Cause No. 93 of 206. It is noted that the appellant has not filed an appeal against the High Court decision. The magistrate was therefore bound by the said decision. 27. In that regard, it is my considered view that this appeal lacks merit and is hereby dismissed. 28. Although this is a family matter, the appellant due to his litigious conduct in several matters related to the deceased’s estate shall meet half of the costs of this appeal in favour of the respondent. 29. It is hereby so ordered. JUDGMENT DELIVERED VIRTUALLY, DATED AND SIGNED AT THIKA THIS 12 TH DAY OF JUNE 2025. F. MUCHEMI JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19786/eng@2025-06-12 5

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