Benson Kiarie & 1 other v Eliud Kiarie & 1 other

Githunguri Magistrate's Court Succession Cause No. 52 of 2016) JUDGEMENT 1. This is a first appeal against the entire ruling of the Principal Magistrate’s Court at Githunguri (Hon. M.W. Wanjala, PM) delivered on 27th January 2025 in Succession Cause No. 52 of 2016. The appellants, Benson Gatere Kiarie and Jasan Ndung'u Kiarie, who are sons of the deceased and administrators of her estate, were aggrieved by the learned magistrate’s decision on the distribution of the estate, particularly the parcel of land known as Githunguri/Ikinu/2063 (hereinafter “the suit property). 2. The core dispute is a family quarrel over whether the suit property should be distributed equally among all the deceased’s children (as proposed by the Appellants) or whether it was beneficially held by the deceased for her late son, Peter Kihara Kiarie, and should therefore devolve wholly upon his widow, the 2nd Respondent as found by the trial court. BACKGROUND AND PROCEDURAL HISTORY 3. The deceased, Phillis Gathoni Kiarie, died on 11th September 1999. The succession cause has a long history, which the trial court has meticulously summarized. 4. Initially, in 2016, Winifred Wanjiru Kihara (2nd Respondent), the widow of the deceased’s son Peter Kihara Kiarie, petitioned for letters of administration, listing only herself and her son as beneficiaries. A grant was issued and pg. 2 JUDGMENT IN KIAMBU HC CIVIL APPEAL NO. E013 OF 2024

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confirmed, with the suit property going solely to her. This grant was later revoked on 4th December 2017 for material non-disclosure of other beneficiaries (the Appellants and other children of the deceased). 5. Subsequently, the Appellants were appointed as administrators. They filed a summons for confirmation of grant dated 8th November 2018, proposing that the suit property be shared equally among all the seven listed beneficiaries, including the 2nd Respondent as a trustee for her late husband's house. This proposal was opposed by Eliud Mathu Kiarie (1st Respondent), a brother to the Appellants, who filed an affidavit of protest. 6. The protestor’s (1st Respondent’s) case was that the deceased had, during her lifetime, sub-divided her original land parcel No. Githunguri/Ikinu/1252 into five equal portions. Four portions were given to her sons (including the Appellants and the 1st Respondent), and the fifth portion (the suit property No. 2063) was retained by the deceased but was intended for her last-born son, Peter Kihara Kiarie (now deceased). He argued that Peter’s widow, the 2nd Respondent, was entitled to this land. 7. The trial court heard viva voce evidence and, in its ruling of 27th January 2025, it made the following key findings: a. That the suit property, Githunguri/Ikinu/2063, was not part of the free estate to be shared among all children. b. That the deceased held the suit property in trust for her late son, Peter Kihara Kiarie. pg. 3 JUDGMENT IN KIAMBU HC CIVIL APPEAL NO. E013 OF 2024

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c. That the 2nd Respondent, as the administrator of Peter Kiarie’s estate, was the rightful person to inherit the suit property wholly and absolutely. d. That the other asset, Wanyororo Farmers Company Ltd Share Certificate No. 461, still belonged to the deceased's estate and should be shared equally among all beneficiaries as listed in the appellants’ summons for confirmation. 8. Aggrieved by this outcome, the appellants filed the present appeal, raising 19 grounds, which can be condensed into four main ground that: a) The trial court erred by giving the entire suit property to the 2nd Respondent, effectively disinheriting the other children, especially the daughters. b) The trial court erred by failing to find that the 2nd Respondent and Eliud Mathu Kiarie had been dishonest in the initial proceedings. c) The trial court erred by directing the inclusion and sharing of the Wanyororo share certificate. d) The trial court’s findings were against the weight of the evidence, particularly regarding the alleged eviction of the 2nd Respondent and the validity of the Land Control Board consent. THE APPELLANTS’ SUBMISSIONS 9. The Appellants, through the firm of Moses Odawa & Company, filed written submissions. They argued that the trial court’s finding that they had chased away the 2nd pg. 4 JUDGMENT IN KIAMBU HC CIVIL APPEAL NO. E013 OF 2024

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Respondent was unsupported by evidence, noting that no police report was made and the 2nd Respondent herself testified to living in Nairobi. 10. They submitted that the deceased’s intention was to distribute her land to all her children, including the daughters, who the trial court ignored. 11. They contended that the Wanyororo share certificate was not part of the pleadings and that evidence showed it had been gifted to Peter Kihara Kiarie who sold it and therefore it should not be distributed. 12. They argued that the Land Control Board consent form was a forgery and that the failure to complete the transfer meant the suit property remained free for distribution to all beneficiaries. They placed reliance on the fact that a caution had been placed on the title. 13. They further submitted that the 2nd Respondent had only an ad litem grant and could not inherit the land absolutely, and that doing so would disinherit the other wives and children of the late Peter Kihara Kiarie. THE RESPONDENTS’ SUBMISSIONS 14. The 1st and 2nd Respondents, through the firm of K.K. Waithanji & Company Advocates, opposed the appeal. They argued that the trial court correctly found a customary trust existed where the late Phillis Gathoni held the disputed parcel of land in trust for Peter Kihara Kiarie, her last born son. They cited the Supreme Court decision in Isack M’Inanga Kiebia v Isaaya Theiri M’Lintari & another for pg. 5 JUDGMENT IN KIAMBU HC CIVIL APPEAL NO. E013 OF 2024

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the proposition that customary trusts are overriding interests proved through the history of the land, possession, and family relationships. 15. They submitted that the deceased’s actions of subdividing the original land, giving four sons title deeds, and retaining the fifth parcel while initiating its transfer to Peter Kihara Kiarie, unequivocally demonstrated her intention. 16. They argued that the Appellants had already received their shares inter vivos and could not claim the portion intended for their deceased brother, as this would amount to unjust enrichment. They cited Section 42 of the Law of Succession Act and Re Estate of Gedion Manthi Nzioka (Deceased). 17. Regarding the Wanyororo certificate, they submitted that the document allegedly showing its sale, was not signed by Peter Kihara Kiarie and the purchaser was not called as a witness. Therefore, the trial court was correct to treat it as part of the deceased’s undistributed estate. 18. As this is a first appeal, this court, has a duty to re-evaluate the evidence on record and draw its own conclusions, while bearing in mind that it did not see or hear the witnesses testify. In the case of Selle v Associated Motor Boat Co. Ltd [1968] EA 123) it was held: “An appeal from a decision of a trial court is by way of re trial and the Court of Appeal is not bound to follow the finding of fact by the trial judge if it appears either that he has clearly failed on particular some point to circumstances take account of or probabilities pg. 6 JUDGMENT IN KIAMBU HC CIVIL APPEAL NO. E013 OF 2024

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materially relevant to an estimate of the evidence, or if the impression based on the demeanour of a witness is inconsistent with the evidence in the case generally.” 19. The following key issues arise for determination: a. Whether the trial court correctly identified and distributed the assets of the estate. b. Whether the trial court erred in finding that the suit property (No. 2063) was held in trust for the late Peter Kihara Kiarie, or whether it was available for equal distribution among all beneficiaries listed by the Appellants. c. Whether the trial court’s orders effectively and unjustly disinherited other beneficiaries, including the daughters and other houses of Peter Kihara Kiarie. d. What are the appropriate final orders for distribution of the estate? ANALYSIS AND DETERMINATION Issue (a): Identification of Assets 20. There is no dispute that the primary asset subject of the proceedings before the trial court is parcel number Githunguri/Ikinu/2063. The Appellants’ own summons for confirmation lists this as the sole property of the estate. 21. Regarding the Wanyororo Farmers Company Ltd Share Certificate No. 461, this court has carefully reviewed the record. This asset was not listed in the Appellants’ summons for confirmation of grant dated 8th November 2018.This pg. 7 JUDGMENT IN KIAMBU HC CIVIL APPEAL NO. E013 OF 2024

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property was introduced in the proceedings by Benson Gateri Kiarie in his testimony before Court. The learned magistrate thereafter made a finding for its distribution. 22. While a court has wide discretion in succession matters, parties are bound by their pleadings. No party sought the distribution of this share certificate. The evidence regarding this property was conflicting. The Appellants claimed that the said property constituted Peter Kihara Kiaries’s share of the properties owned by their late Mother, who gifted him while still alive. The Appellants further allege that Peter Kihara Kiarie sold it to one Suleiman Karuga. The Respondents claimed the deceased (Phillis Gathoni Kiarie) sold the Wanyororo parcel while she was still alive. 23. The Court has perused the letter dated 15.2.1990 availed by the Appellants to demonstrate the Peter Kihara Kiarie sold the Wanyoror plot. The letter is not signed. The Appellant also relied on a letter purportedly by their late mother, dated 15.1.1991 where she gifted the Appellants and their two other brothers the Githunguri property(1252) and Peter Kihara Kiarie the Wanyororo plot. 24. The question that must arise with regard to the above letters is: If the deceased mother gifted her sons her properties on 15.1.1991, then how is it possible that Peter Kiarie sold his Wanyororo portin on 15.2.1990, A year before? That is not possible because he did not own that land. The documents relied by the Appellants in that doubtful authenticity. pg. 8 JUDGMENT IN KIAMBU HC CIVIL APPEAL NO. E013 OF 2024

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25. Again, with regard to the Wanyororo parcel, I find that there was no specific prayer and clear evidence that it formed part of the deceased’s net estate at her death. The trial court erred in making a binding order for its distribution. 26. In the foregoing, this court faults the trial court’s finding and determination on the Wanyororo share certificate as forming part of the estate of Phillis Gathoni Kiarie for purposes of distribution. It is for the same reason that this court finds nothing credible to demonstrate that the said Wanyororo property constituted the absolute share of Peter Kihara Kiarie, in his late mothers’ free property, the same way the Appellants benefitted from the initial property known as Githunguri/Ikinu/1252. Issue (b): Whether the Suit Property (Githunguri/Ikinu 2063) was held in trust for Peter Kihara Kiarie 27. This is the crux of the appeal. The Appellants argue for equal distribution of this property among the children of their late mother. The Respondents argue for a customary trust in favor of Peter Kihara Kiarie. 28. I have re-evaluated the entire evidence on record, including the affidavits, exhibits, and the oral testimony summarized in the proceedings (pages 119-164 of the record of appeal). The following facts are not in dispute: (a) The deceased (Phillis Gathoni Kiarie) originally owned Githunguri/Ikinu/1252 measuring about 3.95 acres. pg. 9 JUDGMENT IN KIAMBU HC CIVIL APPEAL NO. E013 OF 2024

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(b) In or around 1991/1992, she caused this land to be sub-divided into five equal portions (approx. 0.32 Ha each). The mutation and consent forms are on record. (c) Four of these portions were transferred during the deceased’s lifetime to her sons: John Mburu, Eliud Mathu (1st Respondent), Jason Ndung’u (2nd Appellant), and Benson Gatere (1st Appellant). They each received their own title deeds. This is an inter vivos gift to these four sons. (d) The fifth portion, Githunguri/Ikinu/2063, remained registered in the name of the deceased. The evidence is clear that she continued to live on this portion with her last-born son, Peter Kihara Kiarie, and his family. 29. According to the Respondents, the deceased took concrete steps to transfer this fifth portion to Peter Kihara Kiarie by making an application to the Land Control Board (LCR No. 189/98 – page 72 of the record). She however died before completing the process. 30. The Appellants argue that because the transfer was not completed, the land remains free property of the estate. 31. The Court must look beyond the formalistic requirements for transfer of the property and consider the clear history and family intention. The law recognizes that a gift or trust can be established even if legal formalities are incomplete, particularly in African customary law contexts. The allegation pg. 10 JUDGMENT IN KIAMBU HC CIVIL APPEAL NO. E013 OF 2024

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that the consent to the Land Control Board was a forgery, remains just that, an allegation. Nothing was placed before the trial court to demonstrate it was a forgery even for purposes of challenging its admissibility. 32. The Supreme Court in Isack M’Inanga Kiebia v Isaaya Theiri M’Lintari & another [2018] eKLR firmly established that customary trusts are overriding interests. The court stated that such a trust arises from the history of the land, the conduct of the parties, and the intention of the original owner. Registration of the land in the name of a trustee (here, the deceased) does not extinguish the beneficial interest of the intended beneficiary (here, Peter Kihara Kiarie). 33. Having considered all the material placed before the trial court, the following fundamental questions would arise in the circumstances of this case. a. Why would the deceased give four out of her five sons their own titles but leave the fifth title in her name? b. Why would the deceased mother allegedly witness the sale of the Wanyororo property (she is shown in the Appellant’s exhibit as a witness) on 15.2.1990 but leave out his last-born son, Peter Kiarie as a beneficiary of the Githunguri property? 34. The Appellants’ argument that Peter Kihara Kiarie was compensated with the Wanyororo plot is not plausible. As observed above, the said Wanyororo property was sold a year before it was purportedly gifted to Peter Kihara Kiarie. That property was not in existence as of 15.1.1991 when the pg. 11 JUDGMENT IN KIAMBU HC CIVIL APPEAL NO. E013 OF 2024

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distribution of the deceased property was being done, as suggested in the Appellant’s documents exhibited before the trial court. In any event the share certificate for this property is still in the name of the deceased mother. Why didn’t the deceased transfer that property to Peter Kihara Kiarie during her lifetime the same way she transferred the Githunguri portions to the Appellants? 35. The alleged sale happened in 1990, before the 1991/1992 subdivision of Githunguri/ Ikinu/1252. It is possible the deceased (Philis Gathoni Kiarie) sold the said parcel at Wanyororo as the rightful owner. There is no single reason advanced as to why the deceased would discriminate against one of her sons from benefitting from the prime family land at Githunguri. The intention of the deceased was to gift the said portion to her last-born son and not to render him destitute noting she allowed sale of the alleged Wanyororo property. It is not uncommon in many African societies that a mother would stay with the last-born son to take care of her during her old age. Depending on the age of the last-born son or whether or not they are married, the mother would hold the property in trust for them. I find this to be the case for Philis Gathoini Kiarie and Peter Kihara Kiarie. 36. The fact that the 2nd Respondent and her son lived on the land until PeterKihara Kiarie’s death, and the Appellants’ failure to explain why they allowed this if they also had a claim, strongly supports the existence of a trust. The 2 nd Respondent’s allegation of being “chased away” may not have been reported to the police, but the reality of family pg. 12 JUDGMENT IN KIAMBU HC CIVIL APPEAL NO. E013 OF 2024

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conflict and the subsequent 9-year court battle makes such a failure to report understandable. It is instructive that since the death of Peter Kihara Kiarie in the year 2001, neither the Appellants nor their siblings claimed as beneficiaries of the subject property. They were awoken by the filing of the succession matter by the 2nd Respondent at the trial Court. 37. I have considered the Ruling of the trial Court. I find that the deceased held Githunguri/Ikinu/2063 in a customary trust for her son, Peter Kihara Kiarie. Consequently, this asset is not available for equal distribution among all her children. It belongs beneficially to the estate of Peter Kihara Kiarie. pg. 13 JUDGMENT IN KIAMBU HC CIVIL APPEAL NO. E013 OF 2024

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Issue (c): Whether the orders disinherit other beneficiaries 38. The Appellants argue that the ruling of the trial court disinherits the daughters and the other wives and children of Peter Kihara Kiarie. The trial court noted that the four sons received inter vivos gifts from their late mother. Having found that Githunguri /Ikinu belongs to the estate of the late Peter Kihara Kariuki and not Philis Gathoni Kiarie, then it follows that only dependents of the late Peter Kihara Kiarie can lay claim to the said property. In any event the Appellants have not identified the alleged ‘other’ wives and ‘children’ of the late Peter Kihara Kiarie beside Winfred and her son Benson. The other listed beneficiaries are not dependants of Peter Kihara Kiarie within the meaning section 29 of the Law of Succession Act. In any event the interest of Phillis Gathoni (deceased) expired upon her death and consequently the subject property devolved to Peter Kihara Kiarie. 39. This Court also observed that the trial court ordered that parcel number Githunguri/Ikinu/2023 devolves to the Respondent, Winfred Wanjiru Kihara. This is potentially problematic as it leaves out her son, Benson Kiarie. That determination must be varied. The suit property is declared to be an asset of the estate of Peter Kihara Kiarie (deceased). It shall be transferred to the only known beneficiaries (Winfred Wanjiru Kiarie and her son Benson Kihara Kiarie). Winfred Wanjiru Kiarie, shall hold it in trust for pg. 14 JUDGMENT IN KIAMBU HC CIVIL APPEAL NO. E013 OF 2024

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her son until when he is confirmed to have attained the age of 18 years. pg. 15 JUDGMENT IN KIAMBU HC CIVIL APPEAL NO. E013 OF 2024

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FINAL DISPOSITION 40. For the reasons set out above, I make the following final orders: a) A declaration is hereby issued that Land Parcel No. Githunguri/Ikinu/2063 is not available for distribution to all children as part of the free estate of Phillis Gathoni Kiarie (deceased). b) That the deceased, Phylis Gathoni Kiarie, held the suit property, Githunguri/Ikinu/2063 in trust for her late lastborn son, Peter Kihara Kiarie. c) A declaration is hereby issued that the said Land Parcel No. Githunguri/Ikinu/2063 was beneficially owned by and is now an asset forming the estate of Peter Kihara Kiarie (deceased). d) That the decision of the trial Magistrate granting parcel No. Githunguri/Ikinu/2063 only to the 2nd Respondent is hereby varied and or modified to include her son Benson Kihara Kiarie e) That the administrators of the estate of Phillis Gathoni Kiarie (the Appellants) shall take all necessary steps to transfer Land Parcel No. Githunguri/Ikinu/2063 to Winifred Wanjiru Kihara and her son Benson Kihara Kiarie in their capacities as the beneficiaries of the estate of Peter Kihara Kiarie, within 90 days from the date of this Judgment. In default the Court Administrator at Kiambu High Court / Deputy Registrar of the Court shall sign all necessary documents to effect the transfer. pg. 16 JUDGMENT IN KIAMBU HC CIVIL APPEAL NO. E013 OF 2024

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f) That the order of the trial court regarding the distribution of the Wanyororo Farmers Company Ltd Share Certificate is hereby set aside. g) From the nature of these proceedings, I direct that the parties shall bear own costs of this appeal. DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI THIS 26th DAY OF JUNE, 2026 THROUGH THE MICROSOFT TEAMS PLATFORM. KENNEDY KANDET JUDGE IN THE PRESENCE OF: OKORE HB FOR WAITHANJI FOR THE APPELLANT ODAWA FOR THE RESPONDENT COURT ASSISTANT: AGGREY OCHIENG pg. 17 JUDGMENT IN KIAMBU HC CIVIL APPEAL NO. E013 OF 2024

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