Ann Wanjiru Muchina v Isaac Kariuki Macharia & 1 other

Nancy Waithire-1 acre The late Beth Muthoni-1/2 acre The late Mary Wambui-1/2 acre 2. Elburgon/Turi Block 2/287(Ndendene), measuring 3 acres The late Mary Wambui-1/2 acre The late Beth Muthoni-1/2 acre Licia Njeri-acre John Kariki Macharia-1 acre Isaac Kariuki Macharia-1 acre 3. Elburgon Arimi Ndoshwa-1/2 acre 3/265 measuring 40/80 Isaac Kariuki Macharia-Full share 4 Elburgon Arimi Ndoshwa Block 5. 3/128, measuring ¼ acre-To be shared equally among John Mbugua Macharia, Esther Wanjiku and Nancy Waithira 6. Cash in bank and shares-To be shared equally amongst all the 7 siblings Namely; John Mbugua Macharia, Isaac Kariuki Macharia, Lucia Njeri, Esther Wanjiku, Nancy Waithera, The late Beth Muthoni and the Late Mary Wambui. 2. The Appellant was aggrieved by the decision and lodged this Appeal vide Memorandum of Appeal dated 5/2/2025 predicated upon the following grounds; 1. That the learned Magistrate erred in law and fact by adopting a mode of distribution that unfairly discriminated against the female beneficiaries of the estate, contrary to Article 27 of the Constitution of Kenya 2010, which guarantees equal rights to inheritance irrespective of gender. 2. That the learned trial Magistrate erred in law and fact by failing to hold that the estate of MACHARIA MUHITHUKO (Deceased)ought to have been distributed equally among the seven(7) children; inclusive of the two daughters who are deceased. 3. That the learned Magistrate erred in law and fact by finding that a consent has been reached on the mode of distribution, despite the fact the opinions of the beneficiaries of the deceased daughters, namely Mary Wambui Macharia(Deceased) and Beth Muthoni Macharia(Deceased), were never sought. (sic) 4. That the learned Magistrate erred in law and fact by holding that the issue raised for determination by the Interested parties herein (who were protestors in the proceedings) were identical to those raised by the Appellant, despite material differences in their claims. 5. That the learned trial Magistrate erred in law and fact by failing to consider the affidavits of the Appellant, hence arriving at a wrong decision. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7235/eng@2026-05-20 2

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3. The Appellant in the premises seeks these reliefs; a. That the Appeal be allowed. b. That the Ruling dated 8th May, 2023 of the lower court be set aside and be substituted with an order that the deceased’s estate be distributed equally among all the seven(7) beneficiaries of the deceased, irrespective of whether they are male or female, alive or deceased. c. That the Appellant be awarded costs of the Appeal. Background Of The Appeal 4. Grant of Letters of Administration intestate was issued to the Respondents on 25th June 2018. The Appellant appears to have filed a Summons dated 5th November 2019 for confirmation of the Grant but transmission of the deceased’s Estate to identified lawful beneficiaries does not seem to have been completed. The Respondent filed an Affidavit of protest dated 11/11/2019 that was replied to by the Appellants. The protest was disposed of by written submissions and the impugned Ruling was rendered on the 8th May 2023. A certificate of confirmation of Grant dated 8th May 2023 was thereafter issued in accordance with the Court’s decision. 5. The Appellant was not satisfied and filed a Summons dated 14/3/2024 for revocation of the Grant. Upon hearing the Application, the court delivered a Ruling dated 3rd December 2024 dismissing the same. 6. In allowing the Protest and distributing the deceased’s Estate, the learned trial Magistrate correctly observed that the law does not discriminate between male and female children of a deceased person in determining their shares of the Estate. The court also noted that the parcels of land forming part of the Estate were very small and indivisible. Preferring the mode of distribution suggested by the Respondents, the lower court Proceeded to share out the Estate as per paragraph of 1 of this Judgment. Appellant’s Submissions 7. It is submitted inter alia that the delay to bring the Appeal was not deliberate as the Appellant was not represented by Counsel to advise on the requisite legal timelines. The circumstances were therefore beyond a litigant’s control and this is sufficient to condone the belated Appeal, pleads the Appellant. 8. Reference is made to the judicial determination in Adana vs Ogora(Civil Appeal E006 Of 2021) [2025] 1462 (KLR) (12 February 2025) (Ruling) where it was held that in such an Application the court considers various factors including the resources available to a party to mount an Appeal. Further reference is made to case law in the famous case of Nicholas Kiptoo Arap Korir Salat vs IEBC that outlines relevant principles to apply in considering whether or not to extend time for filing of an Appeal. 10. It is contended that the Trial Magistrate discriminated against female children of the deceased and that the Estate should have been distributed equally among all the children since every person is equal before the law and has the right to equal protection of the law. In support of this submission, the Appellant pitches tent on Article 27(1) & (3) of the constitution that provides everyone has the right to equal protection and benefit of the law regardless of their political economic, cultural and social spheres. Case law in Mary Rono vs James Rono & Another (200) KECA 326(KLR) decided by the Court of Appeal and relied upon by the Appellant underscores the legal position. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7235/eng@2026-05-20 3

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11. Citing section 41 of the Law of Succession Act, Counsel submit that where the Deceased’s child predecease his Estate, their children will take their place. Even grand children can directly take the share of their deceased grandparents, (see Estate of Imoli Luhatse Paul (Deceased) (2012) KEHC 1389 KLR also cited and relied upon by the Advocates). The court is urged to find that such beneficiaries ought to be involved in confirmation of a relevant Grant. In line with this argument, the Appellant submits that the children of two dead daughters of the deceased herein were not involved in the confirmation of the Grant and/or catered for. Each beneficiary ought to get 1/7 share of the Estate, according to the Appellant. Respondents’ Submissions 12. . The Respondents’ Advocates submit that the Appeal was filed out of time without leave. Section 79 G of the Civil Procedure Act is quoted for the authority that an Appeal ought to be filed within 30 days from the date of the impugned decree or order, excluding the period taken to deliver the decree or order as may be certified by the lower court (see in Wainaina vs Mwendo & Another) [Court of Appeal E937/2022] alluded to by Counsel). According to the Respondents, an Appeal may only be admitted out of time if the court is satisfied on an Application heard and allowed if sufficient cause for delay is shown, (see Githinji vs Waigure Civil Application E773 of 2023 2024) KEHC relied upon by Counsel). 13. The Respondents complain that the Appellant took over 2 years to lodge the Appeal which he brought without seeking and obtaining leave. I am therefore urged to strike out the Appeal. 14. The Interested Parties do not appear to have filed submissions. Guiding Priciples 15. It is trite law that an appellate court has the duty of re-assessing the evidence and reaching its own conclusions on matters of fact and law. The court will only interfere with the trial court’s findings if relevant factors were not taken into account or irrelevant factors were considered or the trial court otherwise misdirected itself. (see case law in Selle vs. Associated Boat Company [1968] EA 123 and Ocean Freight Shipping Co. Ltd vs. Oakdale Commodities Ltd (1997) eKLR. The Court of Appeal for East Africa in Peters –vs- Sunday Post Limited [1958] EA 424 underscored the same principles delivering itself thus:” i. First, on first appeal, the Court is under a duty to reconsider and re-evaluate the evidence on record and draw its own conclusions; ii. 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 her; and iii. 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. Determination 16. The case of Adana vs Ogora supra is distinguishable from the instant matter. In that case an Application for leave to appeal out of time was made and allowed on the ground that the court’s registry caused delay to process the Appeal to the detriment of the proposed Appellant. The Appellant cannot file an irregular Appeal and then seek to justify delay to bring it by submissions. It has variously been https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7235/eng@2026-05-20 4

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held by superior courts that submissions are not evidence and thus not probative of any fact in issue in a case. 17. This Appeal is therefore clearly defective and incompetent. It is unnecessary in the circumstances to determine the Appeal on merits. Instead, it is struck out with no orders as to costs given the relationship of the parties. JUDGEMENT DATED, SIGNED AND DELIVERED VIRTUALLY THIS 20TH DAY OF MAY 2026 IN THE PRESENCE OF; J.M NANG’EA, JUDGE. The Appellants’ advocate, Mr.Kilel. The Respondents’ Advocate, Mr.Maina for Ms.Njoroge. The Interested Parties’ Advocate, Ms Mwashi for Mr Githiru. The Court Assistant, Jeniffer. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7235/eng@2026-05-20 5

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