'(Being an Appeal from the ruling and order of the Hon. S. M. Nyaga, SRM in Baricho Magistrate’s Court Succession Cause No. E176 of 2021 – In the Estate of Gacheru Kamunye, delivered on 27th July 2023)
1. This appeal arises from the ruling of the trial court delivered on 27th July 2023, dismissing the appellant’s protest against the summons for confirmation of grant dated 2nd June 2022. The succession matter relates to the estate of Gacheru Kamunye, who died intestate on 31st December 2002 at the age of 88. He hailed from Kirinyaga County, Giachong’e location. Letters of Administration Intestate of his estate were granted to Francis Matere Gathuka Gachuka and Michael Muriithi Gacheru, two of his sons and the protagonists in this case, on 7th December 2021 in the Magistrates Court Succession Cause no. 176 of 2021 by the Magistrates court at Baricho. According to Form 5 filed before the magistrate’s court, the deceased was survived by nine children (six sons and one daughter) and three grandchildren (two grandsons and one granddaughter). The estate comprises of the following assets:
a. A parcel of land No. Mwerua/Kagioini/144.
b. Plot No. 3154 Jericho, Nairobi.
c. Savings Accounts numbers 047-117220212 and 047-117215921 Kenya Commercial Bank, Karatina branch.
2. A dispute arose over the distribution of the estate, specifically on the parcel of land. This led to one of the administrators, Michael Muriithi Gacheru, filing the summons for confirmation of grant dated 2nd June 2022 alone, and the other administrator, Francis Matere Gathuka Gacheru, filing an affidavit of protest sworn on 8th June 2022.
3. It is common ground that the deceased died a polygamous man, having been married to two wives, namely Hannah Wangithi Gacheru and Susan Wambia Gacheru. Both of them are deceased. He therefore had two houses.
4. Hannah Wangithi Gacheru (deceased) was the 1st wife who had two children with the deceased, namely:
a. Francis Matere Gathuka Gacheru – son – the applicant herein.
b. Eliud Kariuki Gacheru - son
5. Susan Wambia Gacheru (deceased) was the 2nd wife and had nine children with the deceased, namely:
a. Michael Muriithi Gacheru – son – the protestor herein.
b. Shem Wacira Gacheru – son (deceased)
c. Waithira Gacheru – daughter (deceased)
d. Nahashon King’uru Gacheru – son
e. Stephen Kanja Gacheru – son
f. George Kimani Gacheru – son
g. Wandia Gacheru – daughter (deceased)
h. Patrick Mugo Gacheru – son
i. Maureen Wahito Gacheru – daughter.
6. Waithira Gacheru, one of the deceased daughters, left behind three children and therefore grandchildren of the deceased herein, namely:
a. Gedion Gacheru Waithira – grandson
b. Anthony Muriithi Waithira – grandson
c. Catherine Muthoni Kusiisto, alias Catherine Wanjiru Kusiisto – granddaughter
7. In the affidavit in support of the summons for confirmation of grant, it was proposed by the applicant, Michael Muriithi Gacheru (the respondent herein), that the parcel of land No. Mwerua/Kagioini/144 be shared equally amongst the deceased’s surviving children and the grandchildren. He deposed that the adult dependents were agreeable and had consented to the proposed mode of distribution. However, since the co-administrator had not signed the summons nor the affidavit, it was apparent that he was not agreeable. The applicant annexed to the supporting affidavit a consent on the proposed mode of distribution, signed by some beneficiaries, notably, those from the second house. Those from the first house, namely Francis Matere Gathuka Gacheru and Kariuki Eliud Gacheru, did not sign it.
8. Francis Matere Gathuka Gacheru filed an affidavit of protest, sworn on 8th June 2022, to the confirmation of grant, disputing the proposed mode of distribution of the parcel of land. He deposed that during the lifetime of the deceased in the year 1980, he had made his intentions of how his estate, the parcel of land No. Mwerua/Kagioini/144 measuring 3.0. acres, would be distributed to his two wives into two portions by the clan elders, and each wife or house was shown her portion, where each resided with her children. The families had developed their respective parcels considerably. The deceased had another property known as Plot No. 5 Riakiania market, which was shared equally between the two houses with each house getting half a share. That, the deceased also had the plot in Nairobi and the bank accounts.
9. The protestor proposed that the estate of the deceased be shared between the two houses equally, and each to remain in the portion that each had developed.
10. In answer to the protest, the applicant filed an affidavit sworn on 18th June 2022. He denied that the deceased had subdivided his estate with the help of elders before. He deposed that their father was not living with either of his wives. He urged the court to apply sections 38 and 40 of the Law of Succession Act in the distribution of the estate.
11. In further answer to the protest sworn on 28th July 2022, Michael Muriithi Gacheru rectified the error made in his summons for confirmation of grant by proposing that each of the surviving children of the deceased gets 0.16 Ha, while the three grandchildren all get 0.16 Ha as their late mother’s share of the land.
12. He filed a further affidavit sworn on 24th February 2023 where he deposed that one of the beneficiaries, Patrick Mugo Gacheru, had since passed on 12th August 2022. That he had no wife or children or any other dependent and so he proposed that the distribution of the estate be adjusted to account for the extra portion of land that would have gone to Patrick so that the remaining beneficiaries would now get 0.182 Ha each.
13. The matter proceeded for a hearing, where each party testified and called witnesses.
14. The applicant for summons for confirmation of grant, Michael Muriithi Gacheru, the respondent herein, who referred to himself as the Petitioner (but should be 1st Petitioner), testified as DW 1. He adopted his witness statement dated 28th July 2022. His evidence was that the family had agreed that the beneficiaries of the estate, all being children of the deceased, would each get an equal share of the land. He said that this was what they had all agreed on at the start of the succession process. He therefore prayed that the land be distributed in equal shares to the children.
15. In cross-examination, he said that his step-brother, Francis Matere Gathuka Gacheru, the protestor, and he, had been gifted a different parcel of land, which was formerly Plot No. 5 Riakainia, and it was shared between the two of them in half. He denied that each of them was holding the land in trust for the other children of their respective mothers. He said that a plot is different from land and therefore he wished to share in the remaining parcel of land with the other beneficiaries. He said that he did not know whether their other siblings were given anything or any other gift. He said that their entire family is settled on parcel No. 144, and their respective mothers were buried there. He denied that there is a footpath separating the two households in equal shares. He also denied that their mothers’ graves are on the respective portions on which they were staying. He said that the two graves were not far apart. He denied that the parcels of land are developed by each household. He also denied that clan elders had visited the land for the subdivision and termed this a pure lie and a distortion of evidence because they (the children) were not involved.
16. DW 2, Stephen Kanja Gacheru, was the witness for the applicant. He adopted his witness statement dated 28th July 2022. In that statement, he simply said that he adopted the applicant’s statement.
17. In cross-examination, DW 2 said that he was aware of the plot at Riakainia and that it was given to the applicant and the protestor as elder brothers to represent the respective households.
18. DW 2 said that land parcel No. 144 is not subdivided. He, however, said that each household was settled separately by their late father and that the houses are about 50m from each other.
19. The protestor Francis Matere Gachuka Gacheru gave evidence as PW 1. He said that besides land parcel No. 144, their father had other properties, including the plot at Riakainia, which is in the names of the Petitioners (himself and the applicant, Michael), a plot in Jericho estate, Nairobi, with rental houses, and the bank accounts.
20. He said that land parcel No. 144 was their matrimonial home. It is divided into two parts separated by a footpath. There are permanent houses fully developed since 1980, when their father was alive. He said that they had never lived in the same homestead. The 2nd household had lived in Nairobi and had recently developed a small house on their share of the land.
21. PW 1’s proposal was that the land parcel number 144, the Jericho plot, and the proceeds in the bank accounts be divided equally between the two households as per their father’s wishes. Otherwise, the proposal by the applicant on how to share the property will interfere with their father’s wishes.
22. In cross-examination, the protestor said that the Jericho plot was in the name of the County Government of Nairobi, but he was noted thereon as an occupant and he pays rent. He said the Riakiania plot is registered in his name and that of the applicant.
23. The protestor further said that land parcel No. 144 was shared on the ground but there was no subdivision.
24. PW 2, Michael Gathuka Murage, was a witness for the protestor. He adopted his witness statement dated 3/8/2022. He supported the protestor’s evidence that the land be subdivided between the houses. He said that he did not know the number of children in each household. Asked how he would subdivide his property among his children, he said that he would share it equally.
25. PW 3, Warui Joel, also a witness for the protestor, adopted his witness statement dated 21/9/2022 as his evidence in chief.
26. In cross-examination, he said that he wanted all the children to get equal shares. He said that he knew the two households of the deceased, but he did not know the children of the second house. He also said that the path would not be a barrier for children of the other household living on one side. He also said that permanent buildings are not a barrier for the beneficiaries to get land.
27. However, in re-examination, he stated that the deceased had shared his land on the ground and that the system should be maintained, and was not discriminatory.
28. Learned counsels did not make submissions after the testimonies.
29. After hearing the evidence, the learned trial magistrate found that the 1st household (the protestor) had failed to convince the court that the deceased’s intention was to share the land equally among the two households. He therefore applied section 40 of the LSA and decided that the land parcel No. Mwerua/Kagioini/144 be equally shared among the surviving beneficiaries who he identified as Francis Matere, Eliud Kariuki, Michael Muriithi, Stephen Karanja, George Kimani, Patrick Mugo, Maurine Wahito, with Gedion Gacheru, Antony Muriithi, and Catherine Muthoni sharing one unit. He also found that Plot No. 5, Riakiania, was already shared equally between the applicant and the protestor, hence it was not available for succession as the other beneficiaries were not pursuing it. He found that the Jericho plot No. 3154 in Nairobi was not the property of the deceased and so was not available for succession. However, any interested party may follow it up with the County Government of Nairobi. He then shared the proceeds in the bank accounts among the eight units.
30. The protestor was dissatisfied with that decision and filed the present appeal through the memorandum dated 9th August 2023, based on the following three grounds:
a. The ruling was against the weight of the evidence adduced and without considering the appellant’s evidence.
b. The trial court erred in law and fact by holding that the estate should be shared equally among the beneficiaries instead of being shared between the two houses.
c. The trial court erred in law and fact by holding that the estate be shared equally without appreciating the nature of the developments therein.
31. He prayed that the decision of the trial court be set aside and the protest be upheld with costs of the appeal to the appellant.
32. The appeal was disposed of by way of written submissions filed by learned counsels for both parties.
33. The appellant, through his learned counsel, made brief submissions stating that if the confirmation of grant was to be executed as proposed, the 1st house would automatically suffer financial and emotional loss, and this would lead to more unwarranted family squabbles because they had extensively developed their portion of the land, whereas the second house had not developed its portion. He submitted that this was not the spirit of sections 38 and 40 of the LSA.
34. On his part, the respondent, through his learned counsel, submits, invoking section 38 of the LSA that the deceased’s estate should be distributed equally amongst the beneficiaries. He submits that, going by the proposal made by the protestor would lead to discrimination which is contrary to Articl 27 of the Constitution, because the first house had less children than the second house. The children of the first house would therefore get a bigger share of the estate than those of the second house.
35. The respondent submits further that an unchecked application of section 40 of the LSA may lead to absurdity as was held in the case of Scolastica Ndululu Suva v Agnes Nthenya Suva [2019] KECA 1053 (KLR). He also cited the case of In re Estate of Ramaita Solitei (Deceased) [2019] KEHC 9929 (KLR)where the High Court observed that distribution of an intestate estate under section 40 of the LSA has always been a touchy issue subject to contradictory interpretations by courts on whether in a polygamous situation, the estate of a deceased ought to be distributed equally or equitably.
36. This being a first appeal, the duty of this court is to re-evaluate, re-analyze and re-consider the evidence and draw its own conclusions, bearing in mind that it did not see witnesses testifying and therefore give due allowance for that. This is the position as held in Selle & another vs. Associated Motor Boat Co. Ltd & others [1968] E.A at page 126 on a first appeal from the High Court to the Court of Appeal 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. 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 account of particular circumstances or probabilities materially to estimate the evidence or if the impression based on the demeanor of a witness is inconsistent with the evidence in the case generally (Abdul Hameed Saif v Ali Mohamed Sholan (1955), 22 E.A.C.A. 270)”.
37. I am well guided by these principles in the consideration and determination of this appeal.
38. I have considered the grounds of appeal, the submissions by the parties in this appeal and reviewed the evidence tendered before and the judgment of the trial court. There is no dispute that the deceased was polygamous with two wives; that he had 12 children, 2 from the 1st house and 10 from the 2nd house. Both wives are since deceased. As at the time the trial court was making its decision the two children of the first house were both alive while four of the children of the second house were still alive, with one of the deceased children, Waithera, having three children surviving her. This makes five units in the second house. The issue for determination is whether the learned trial magistrate erred in his interpretation and application of Section 40 of the Law of Succession Act. In other words, whether the learned trial magistrate erred in the mode of distribution of the deceased''s estate among the two houses.
39. Under section 107 of the Evidence Act, the legal burden of proof was upon the applicant to prove his case for confirmation of the grant in accordance with the mode of distribution proposed therein, on a balance of probabilities. In other words, he was required to present enough evidence to prove his claim.
40. Section 109 of the Evidence Act on the other hand, provides that the burden of proof as to any particular fact lies on the person who wishes the Court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person.
41. In this case, the applicant bore the evidential burden of proof to show that the distribution of the deceased’s estate should be in accordance with the provisions of section 40 of the LSA while the protestor, who thought otherwise, had the evidential burden to prove that the estate should be distributed in accordance with what he alleged were the deceased’s wishes.
42. The learned trial magistrate found that the protestor had failed to discharge his evidential burden of proof and therefore decided that section 40 of the LSK would apply in this case. However, as seen in the various cases cited above, the application of section 40 LSA is not a straightforward matter. It is problematic and courts have given it varied interpretations.
43. I find that in arriving at his decision, the learned trial magistrate failed to take into account, or provide for, various issues.
44. First, there was evidence that the applicant and the protestor had already benefited from their father’s other property, being the plot No. 5 at Riakiania market. In that case, under section 42 of the LSA, it would not be fair for them to get an equal share of the remaining property with the other beneficiaries. I find so because, according to the applicant and the protestor, the plot was gifted to them individually and not in trust for the siblings from their respective mothers. The learned trial magistrate needed to take evidence from the other siblings on this issue to reach a definitive finding regarding the appropriate distribution of the remaining estate. For instance, DW 2, a brother of the applicant, said that in fact the two were holding the respective portions of the plots in trust for the other siblings according to their respective houses.
45. Secondly, the learned trial magistrate failed to give an opportunity to all the beneficiaries to state their wishes, seeing that there was a contest between the administrators on the mode of distribution. Under such circumstances, it was only fair that each of them states his or her position. That way, the court would know whether some wished to renounce their inheritance due to their stations in life and therefore leave the court to make the distribution of the estate among those remaining.
46. Noting that other beneficiaries of the estate, besides the applicant, the respondent, and DW 2 were not given an opportunity to present their evidence on the distribution of the estate, I find that this was against the provisions of Rule 41 of the Probate and Administration Rules.
47. Rule 41(1) of the Probate and Administration Rules provides as follows:
“At the hearing of the application for confirmation the court shall first read out in the language or respective languages in which they appear the application, the grant, the affidavits and any written protests which have been filed and shall then hear the applicant and each protester and any other person interested, whether such persons appear personally or by advocate or by a representative.”
48. Considering this section of the law in the case of In re estate of Robert Mungai Gichinji (Deceased) [2016] KEHC 2377 (KLR) the High Court, W. Musyoka, J. stated as follows:
“Then there is Rule 41 of the Probate and Administration Rules. It deals with the actual hearing of the application for confirmation for grant. The language of Rule 41(1) suggests that the grant, the application, the supporting affidavits and the protest affidavits ought to be read to the administrator applicants, any protestors and ‘any other person interested.’ This would mean that all those interested in the estate ought to be notified of the hearing in order that they may be present when the grant is being confirmed, so that they can raise any issues of concern to them.
The record of 19th May 1995 indicates that apart from counsel for the administrators, there was no attendance by any other person, including the applicants herein. There is nothing on record to indicate that they had been notified of the hearing. They ought to have been so notified in compliance with Rule 41(1) of the Probate and Administration Rules.”
49. In the present case, the persons who were participating in the confirmation of the grant and the protest were the applicant and the protestor only, yet the summons for confirmation of grant indicated that there were no less than six other beneficiaries to the estate who would then be interested in the administration of the estate as provided for under the rule. There is no indication that the court directed that they participate in the hearing as provided for under Rule 41(1) of the Probate and Administration Rules. I am persuaded to follow the decision above and find that the trial court erred in not involving the other beneficiaries in the proceedings for confirmation of the grant.
50. Thirdly, the trial court was faced with two conflicting versions of how the land parcel No. 144 would be distributed. In that case, the proper way to go was for the court to visit the land in order to better understand the assertions of the witnesses. That way, it would have determined whether the deceased had made his wishes known while he was alive by settling each family on a specific portion of the land or not. The court would then determine the fair mode of distribution of the land. It has been determined in a myriad of cases beginning with Mary Rono v Jane Rono & another [2005] KECA 326 (KLR) that sections 38 and 40 of the LSA does not mean that the estate has to be subdivided equally among the beneficiaries. Similarly, in the case of Rahab Njeri Kariuki v Joyce Waruguru Kariuki & 2 Others [2016] e KLR, the court while interpreting the inference of Section 40 of the Law of Succession Act observed as follows: -
“The Learned Judges essentially espoused the principal of fairness and equity in distribution of a deceased’s estate between or amongst persons beneficiary entitled to such an estate in a polygamous family set-up. While the number of children in a particular house is an important factor in the determination of the share to be allocated to each house, it is not the only factor; neither is it the controlling factor. The share each house gets is not contingent upon the number of children in any particular house; there are other considerations which will guide the court’s discretion in the distribution of the estate; for instance, the age of the children and their station in life are factors that the court will necessarily take into account.”
51. In this case, there were other factors to take into account, and this would include whether the deceased had settled the respective families on identifiable portions of land and therefore, fair distribution would mean them remaining on those portions irrespective of the number of children in each house. That is just one of the factors, among many others, that the trial court ought to have considered before exercising its discretion on the distribution of the estate.
52. Yet again, in hearing the protest which was within the confirmation proceedings, the court began with taking the evidence of the protestor contrary to the express provisions of Rule 41(1) above that the court “… shall then hear the applicant and each protester and any other person interested, …” an indication that the petitioner ought to have been the first one to be heard since in any case the application for confirmation was his.
53. I therefore find that the procedure adopted by the trial court to start the hearing of the summons for confirmation of the grant with the protestor was in error.
54. Therefore, from the foregoing consideration of the proceedings before the trial court, I find that the appeal must succeed on the grounds considered herein. Since the rest of the grounds deal with the substance of the protestor’s case before the trial court, it will not be appropriate for this court to delve into them lest it prejudices the decision of the court that will handle the matter.
55. Consequently, I find that the appeal has merit and the same succeeds. The judgment of the trial court dated 27th July 2023 is set aside and the case remitted to the magistrate’s court for rehearing of the summons for confirmation of the grant issued herein together with the protest de novo and in accordance with the directions of this court on where the trial court made errors. For clarity and emphasis, all parties interested in the administration of the estate of the deceased Gacheru Kamunye should be notified and given an opportunity to present their respective cases at the hearing.
56. Each party to bear his own costs.
57. Mention on 22/10/2025 before the Head of Station, Baricho Magistrates Court, or duty court for allocation of the case for a fresh hearing of the summons for confirmation of the grant and the protest before a magistrate other than Hon. S.M. Nyaga (P.M) for implementation of the orders herein.
58. Orders accordingly.
Dated, signed, and delivered on the Virtual Platform, Teams, this 3rd day of October 2025.
ANDAYI W. F.
JUDGE
In the presence of:
Gitau Kahiga for the Appellant.
Kamau holding brief for Murigu for the Respondent
Ummu holding brief for Job: Court Assistant.
'
1. This appeal arises from the ruling of the trial court delivered on 27th July 2023, dismissing the appellant’s protest against the summons for confirmation of grant dated 2nd June 2022. The succession matter relates to the estate of Gacheru Kamunye, who died intestate on 31st December 2002 at the age of 88. He hailed from Kirinyaga County, Giachong’e location. Letters of Administration Intestate of his estate were granted to Francis Matere Gathuka Gachuka and Michael Muriithi Gacheru, two of his sons and the protagonists in this case, on 7th December 2021 in the Magistrates Court Succession Cause no. 176 of 2021 by the Magistrates court at Baricho. According to Form 5 filed before the magistrate’s court, the deceased was survived by nine children (six sons and one daughter) and three grandchildren (two grandsons and one granddaughter). The estate comprises of the following assets:
a. A parcel of land No. Mwerua/Kagioini/144.
b. Plot No. 3154 Jericho, Nairobi.
c. Savings Accounts numbers 047-117220212 and 047-117215921 Kenya Commercial Bank, Karatina branch.
2. A dispute arose over the distribution of the estate, specifically on the parcel of land. This led to one of the administrators, Michael Muriithi Gacheru, filing the summons for confirmation of grant dated 2nd June 2022 alone, and the other administrator, Francis Matere Gathuka Gacheru, filing an affidavit of protest sworn on 8th June 2022.
3. It is common ground that the deceased died a polygamous man, having been married to two wives, namely Hannah Wangithi Gacheru and Susan Wambia Gacheru. Both of them are deceased. He therefore had two houses.
4. Hannah Wangithi Gacheru (deceased) was the 1st wife who had two children with the deceased, namely:
a. Francis Matere Gathuka Gacheru – son – the applicant herein.
b. Eliud Kariuki Gacheru - son
5. Susan Wambia Gacheru (deceased) was the 2nd wife and had nine children with the deceased, namely:
a. Michael Muriithi Gacheru – son – the protestor herein.
b. Shem Wacira Gacheru – son (deceased)
c. Waithira Gacheru – daughter (deceased)
d. Nahashon King’uru Gacheru – son
e. Stephen Kanja Gacheru – son
f. George Kimani Gacheru – son
g. Wandia Gacheru – daughter (deceased)
h. Patrick Mugo Gacheru – son
i. Maureen Wahito Gacheru – daughter.
6. Waithira Gacheru, one of the deceased daughters, left behind three children and therefore grandchildren of the deceased herein, namely:
a. Gedion Gacheru Waithira – grandson
b. Anthony Muriithi Waithira – grandson
c. Catherine Muthoni Kusiisto, alias Catherine Wanjiru Kusiisto – granddaughter
7. In the affidavit in support of the summons for confirmation of grant, it was proposed by the applicant, Michael Muriithi Gacheru (the respondent herein), that the parcel of land No. Mwerua/Kagioini/144 be shared equally amongst the deceased’s surviving children and the grandchildren. He deposed that the adult dependents were agreeable and had consented to the proposed mode of distribution. However, since the co-administrator had not signed the summons nor the affidavit, it was apparent that he was not agreeable. The applicant annexed to the supporting affidavit a consent on the proposed mode of distribution, signed by some beneficiaries, notably, those from the second house. Those from the first house, namely Francis Matere Gathuka Gacheru and Kariuki Eliud Gacheru, did not sign it.
8. Francis Matere Gathuka Gacheru filed an affidavit of protest, sworn on 8th June 2022, to the confirmation of grant, disputing the proposed mode of distribution of the parcel of land. He deposed that during the lifetime of the deceased in the year 1980, he had made his intentions of how his estate, the parcel of land No. Mwerua/Kagioini/144 measuring 3.0. acres, would be distributed to his two wives into two portions by the clan elders, and each wife or house was shown her portion, where each resided with her children. The families had developed their respective parcels considerably. The deceased had another property known as Plot No. 5 Riakiania market, which was shared equally between the two houses with each house getting half a share. That, the deceased also had the plot in Nairobi and the bank accounts.
9. The protestor proposed that the estate of the deceased be shared between the two houses equally, and each to remain in the portion that each had developed.
10. In answer to the protest, the applicant filed an affidavit sworn on 18th June 2022. He denied that the deceased had subdivided his estate with the help of elders before. He deposed that their father was not living with either of his wives. He urged the court to apply sections 38 and 40 of the Law of Succession Act in the distribution of the estate.
11. In further answer to the protest sworn on 28th July 2022, Michael Muriithi Gacheru rectified the error made in his summons for confirmation of grant by proposing that each of the surviving children of the deceased gets 0.16 Ha, while the three grandchildren all get 0.16 Ha as their late mother’s share of the land.
12. He filed a further affidavit sworn on 24th February 2023 where he deposed that one of the beneficiaries, Patrick Mugo Gacheru, had since passed on 12th August 2022. That he had no wife or children or any other dependent and so he proposed that the distribution of the estate be adjusted to account for the extra portion of land that would have gone to Patrick so that the remaining beneficiaries would now get 0.182 Ha each.
13. The matter proceeded for a hearing, where each party testified and called witnesses.
14. The applicant for summons for confirmation of grant, Michael Muriithi Gacheru, the respondent herein, who referred to himself as the Petitioner (but should be 1st Petitioner), testified as DW 1. He adopted his witness statement dated 28th July 2022. His evidence was that the family had agreed that the beneficiaries of the estate, all being children of the deceased, would each get an equal share of the land. He said that this was what they had all agreed on at the start of the succession process. He therefore prayed that the land be distributed in equal shares to the children.
15. In cross-examination, he said that his step-brother, Francis Matere Gathuka Gacheru, the protestor, and he, had been gifted a different parcel of land, which was formerly Plot No. 5 Riakainia, and it was shared between the two of them in half. He denied that each of them was holding the land in trust for the other children of their respective mothers. He said that a plot is different from land and therefore he wished to share in the remaining parcel of land with the other beneficiaries. He said that he did not know whether their other siblings were given anything or any other gift. He said that their entire family is settled on parcel No. 144, and their respective mothers were buried there. He denied that there is a footpath separating the two households in equal shares. He also denied that their mothers’ graves are on the respective portions on which they were staying. He said that the two graves were not far apart. He denied that the parcels of land are developed by each household. He also denied that clan elders had visited the land for the subdivision and termed this a pure lie and a distortion of evidence because they (the children) were not involved.
16. DW 2, Stephen Kanja Gacheru, was the witness for the applicant. He adopted his witness statement dated 28th July 2022. In that statement, he simply said that he adopted the applicant’s statement.
17. In cross-examination, DW 2 said that he was aware of the plot at Riakainia and that it was given to the applicant and the protestor as elder brothers to represent the respective households.
18. DW 2 said that land parcel No. 144 is not subdivided. He, however, said that each household was settled separately by their late father and that the houses are about 50m from each other.
19. The protestor Francis Matere Gachuka Gacheru gave evidence as PW 1. He said that besides land parcel No. 144, their father had other properties, including the plot at Riakainia, which is in the names of the Petitioners (himself and the applicant, Michael), a plot in Jericho estate, Nairobi, with rental houses, and the bank accounts.
20. He said that land parcel No. 144 was their matrimonial home. It is divided into two parts separated by a footpath. There are permanent houses fully developed since 1980, when their father was alive. He said that they had never lived in the same homestead. The 2nd household had lived in Nairobi and had recently developed a small house on their share of the land.
21. PW 1’s proposal was that the land parcel number 144, the Jericho plot, and the proceeds in the bank accounts be divided equally between the two households as per their father’s wishes. Otherwise, the proposal by the applicant on how to share the property will interfere with their father’s wishes.
22. In cross-examination, the protestor said that the Jericho plot was in the name of the County Government of Nairobi, but he was noted thereon as an occupant and he pays rent. He said the Riakiania plot is registered in his name and that of the applicant.
23. The protestor further said that land parcel No. 144 was shared on the ground but there was no subdivision.
24. PW 2, Michael Gathuka Murage, was a witness for the protestor. He adopted his witness statement dated 3/8/2022. He supported the protestor’s evidence that the land be subdivided between the houses. He said that he did not know the number of children in each household. Asked how he would subdivide his property among his children, he said that he would share it equally.
25. PW 3, Warui Joel, also a witness for the protestor, adopted his witness statement dated 21/9/2022 as his evidence in chief.
26. In cross-examination, he said that he wanted all the children to get equal shares. He said that he knew the two households of the deceased, but he did not know the children of the second house. He also said that the path would not be a barrier for children of the other household living on one side. He also said that permanent buildings are not a barrier for the beneficiaries to get land.
27. However, in re-examination, he stated that the deceased had shared his land on the ground and that the system should be maintained, and was not discriminatory.
28. Learned counsels did not make submissions after the testimonies.
29. After hearing the evidence, the learned trial magistrate found that the 1st household (the protestor) had failed to convince the court that the deceased’s intention was to share the land equally among the two households. He therefore applied section 40 of the LSA and decided that the land parcel No. Mwerua/Kagioini/144 be equally shared among the surviving beneficiaries who he identified as Francis Matere, Eliud Kariuki, Michael Muriithi, Stephen Karanja, George Kimani, Patrick Mugo, Maurine Wahito, with Gedion Gacheru, Antony Muriithi, and Catherine Muthoni sharing one unit. He also found that Plot No. 5, Riakiania, was already shared equally between the applicant and the protestor, hence it was not available for succession as the other beneficiaries were not pursuing it. He found that the Jericho plot No. 3154 in Nairobi was not the property of the deceased and so was not available for succession. However, any interested party may follow it up with the County Government of Nairobi. He then shared the proceeds in the bank accounts among the eight units.
30. The protestor was dissatisfied with that decision and filed the present appeal through the memorandum dated 9th August 2023, based on the following three grounds:
a. The ruling was against the weight of the evidence adduced and without considering the appellant’s evidence.
b. The trial court erred in law and fact by holding that the estate should be shared equally among the beneficiaries instead of being shared between the two houses.
c. The trial court erred in law and fact by holding that the estate be shared equally without appreciating the nature of the developments therein.
31. He prayed that the decision of the trial court be set aside and the protest be upheld with costs of the appeal to the appellant.
32. The appeal was disposed of by way of written submissions filed by learned counsels for both parties.
33. The appellant, through his learned counsel, made brief submissions stating that if the confirmation of grant was to be executed as proposed, the 1st house would automatically suffer financial and emotional loss, and this would lead to more unwarranted family squabbles because they had extensively developed their portion of the land, whereas the second house had not developed its portion. He submitted that this was not the spirit of sections 38 and 40 of the LSA.
34. On his part, the respondent, through his learned counsel, submits, invoking section 38 of the LSA that the deceased’s estate should be distributed equally amongst the beneficiaries. He submits that, going by the proposal made by the protestor would lead to discrimination which is contrary to Articl 27 of the Constitution, because the first house had less children than the second house. The children of the first house would therefore get a bigger share of the estate than those of the second house.
35. The respondent submits further that an unchecked application of section 40 of the LSA may lead to absurdity as was held in the case of Scolastica Ndululu Suva v Agnes Nthenya Suva [2019] KECA 1053 (KLR). He also cited the case of In re Estate of Ramaita Solitei (Deceased) [2019] KEHC 9929 (KLR)where the High Court observed that distribution of an intestate estate under section 40 of the LSA has always been a touchy issue subject to contradictory interpretations by courts on whether in a polygamous situation, the estate of a deceased ought to be distributed equally or equitably.
36. This being a first appeal, the duty of this court is to re-evaluate, re-analyze and re-consider the evidence and draw its own conclusions, bearing in mind that it did not see witnesses testifying and therefore give due allowance for that. This is the position as held in Selle & another vs. Associated Motor Boat Co. Ltd & others [1968] E.A at page 126 on a first appeal from the High Court to the Court of Appeal 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. 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 account of particular circumstances or probabilities materially to estimate the evidence or if the impression based on the demeanor of a witness is inconsistent with the evidence in the case generally (Abdul Hameed Saif v Ali Mohamed Sholan (1955), 22 E.A.C.A. 270)”.
37. I am well guided by these principles in the consideration and determination of this appeal.
38. I have considered the grounds of appeal, the submissions by the parties in this appeal and reviewed the evidence tendered before and the judgment of the trial court. There is no dispute that the deceased was polygamous with two wives; that he had 12 children, 2 from the 1st house and 10 from the 2nd house. Both wives are since deceased. As at the time the trial court was making its decision the two children of the first house were both alive while four of the children of the second house were still alive, with one of the deceased children, Waithera, having three children surviving her. This makes five units in the second house. The issue for determination is whether the learned trial magistrate erred in his interpretation and application of Section 40 of the Law of Succession Act. In other words, whether the learned trial magistrate erred in the mode of distribution of the deceased''s estate among the two houses.
39. Under section 107 of the Evidence Act, the legal burden of proof was upon the applicant to prove his case for confirmation of the grant in accordance with the mode of distribution proposed therein, on a balance of probabilities. In other words, he was required to present enough evidence to prove his claim.
40. Section 109 of the Evidence Act on the other hand, provides that the burden of proof as to any particular fact lies on the person who wishes the Court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person.
41. In this case, the applicant bore the evidential burden of proof to show that the distribution of the deceased’s estate should be in accordance with the provisions of section 40 of the LSA while the protestor, who thought otherwise, had the evidential burden to prove that the estate should be distributed in accordance with what he alleged were the deceased’s wishes.
42. The learned trial magistrate found that the protestor had failed to discharge his evidential burden of proof and therefore decided that section 40 of the LSK would apply in this case. However, as seen in the various cases cited above, the application of section 40 LSA is not a straightforward matter. It is problematic and courts have given it varied interpretations.
43. I find that in arriving at his decision, the learned trial magistrate failed to take into account, or provide for, various issues.
44. First, there was evidence that the applicant and the protestor had already benefited from their father’s other property, being the plot No. 5 at Riakiania market. In that case, under section 42 of the LSA, it would not be fair for them to get an equal share of the remaining property with the other beneficiaries. I find so because, according to the applicant and the protestor, the plot was gifted to them individually and not in trust for the siblings from their respective mothers. The learned trial magistrate needed to take evidence from the other siblings on this issue to reach a definitive finding regarding the appropriate distribution of the remaining estate. For instance, DW 2, a brother of the applicant, said that in fact the two were holding the respective portions of the plots in trust for the other siblings according to their respective houses.
45. Secondly, the learned trial magistrate failed to give an opportunity to all the beneficiaries to state their wishes, seeing that there was a contest between the administrators on the mode of distribution. Under such circumstances, it was only fair that each of them states his or her position. That way, the court would know whether some wished to renounce their inheritance due to their stations in life and therefore leave the court to make the distribution of the estate among those remaining.
46. Noting that other beneficiaries of the estate, besides the applicant, the respondent, and DW 2 were not given an opportunity to present their evidence on the distribution of the estate, I find that this was against the provisions of Rule 41 of the Probate and Administration Rules.
47. Rule 41(1) of the Probate and Administration Rules provides as follows:
“At the hearing of the application for confirmation the court shall first read out in the language or respective languages in which they appear the application, the grant, the affidavits and any written protests which have been filed and shall then hear the applicant and each protester and any other person interested, whether such persons appear personally or by advocate or by a representative.”
48. Considering this section of the law in the case of In re estate of Robert Mungai Gichinji (Deceased) [2016] KEHC 2377 (KLR) the High Court, W. Musyoka, J. stated as follows:
“Then there is Rule 41 of the Probate and Administration Rules. It deals with the actual hearing of the application for confirmation for grant. The language of Rule 41(1) suggests that the grant, the application, the supporting affidavits and the protest affidavits ought to be read to the administrator applicants, any protestors and ‘any other person interested.’ This would mean that all those interested in the estate ought to be notified of the hearing in order that they may be present when the grant is being confirmed, so that they can raise any issues of concern to them.
The record of 19th May 1995 indicates that apart from counsel for the administrators, there was no attendance by any other person, including the applicants herein. There is nothing on record to indicate that they had been notified of the hearing. They ought to have been so notified in compliance with Rule 41(1) of the Probate and Administration Rules.”
49. In the present case, the persons who were participating in the confirmation of the grant and the protest were the applicant and the protestor only, yet the summons for confirmation of grant indicated that there were no less than six other beneficiaries to the estate who would then be interested in the administration of the estate as provided for under the rule. There is no indication that the court directed that they participate in the hearing as provided for under Rule 41(1) of the Probate and Administration Rules. I am persuaded to follow the decision above and find that the trial court erred in not involving the other beneficiaries in the proceedings for confirmation of the grant.
50. Thirdly, the trial court was faced with two conflicting versions of how the land parcel No. 144 would be distributed. In that case, the proper way to go was for the court to visit the land in order to better understand the assertions of the witnesses. That way, it would have determined whether the deceased had made his wishes known while he was alive by settling each family on a specific portion of the land or not. The court would then determine the fair mode of distribution of the land. It has been determined in a myriad of cases beginning with Mary Rono v Jane Rono & another [2005] KECA 326 (KLR) that sections 38 and 40 of the LSA does not mean that the estate has to be subdivided equally among the beneficiaries. Similarly, in the case of Rahab Njeri Kariuki v Joyce Waruguru Kariuki & 2 Others [2016] e KLR, the court while interpreting the inference of Section 40 of the Law of Succession Act observed as follows: -
“The Learned Judges essentially espoused the principal of fairness and equity in distribution of a deceased’s estate between or amongst persons beneficiary entitled to such an estate in a polygamous family set-up. While the number of children in a particular house is an important factor in the determination of the share to be allocated to each house, it is not the only factor; neither is it the controlling factor. The share each house gets is not contingent upon the number of children in any particular house; there are other considerations which will guide the court’s discretion in the distribution of the estate; for instance, the age of the children and their station in life are factors that the court will necessarily take into account.”
51. In this case, there were other factors to take into account, and this would include whether the deceased had settled the respective families on identifiable portions of land and therefore, fair distribution would mean them remaining on those portions irrespective of the number of children in each house. That is just one of the factors, among many others, that the trial court ought to have considered before exercising its discretion on the distribution of the estate.
52. Yet again, in hearing the protest which was within the confirmation proceedings, the court began with taking the evidence of the protestor contrary to the express provisions of Rule 41(1) above that the court “… shall then hear the applicant and each protester and any other person interested, …” an indication that the petitioner ought to have been the first one to be heard since in any case the application for confirmation was his.
53. I therefore find that the procedure adopted by the trial court to start the hearing of the summons for confirmation of the grant with the protestor was in error.
54. Therefore, from the foregoing consideration of the proceedings before the trial court, I find that the appeal must succeed on the grounds considered herein. Since the rest of the grounds deal with the substance of the protestor’s case before the trial court, it will not be appropriate for this court to delve into them lest it prejudices the decision of the court that will handle the matter.
55. Consequently, I find that the appeal has merit and the same succeeds. The judgment of the trial court dated 27th July 2023 is set aside and the case remitted to the magistrate’s court for rehearing of the summons for confirmation of the grant issued herein together with the protest de novo and in accordance with the directions of this court on where the trial court made errors. For clarity and emphasis, all parties interested in the administration of the estate of the deceased Gacheru Kamunye should be notified and given an opportunity to present their respective cases at the hearing.
56. Each party to bear his own costs.
57. Mention on 22/10/2025 before the Head of Station, Baricho Magistrates Court, or duty court for allocation of the case for a fresh hearing of the summons for confirmation of the grant and the protest before a magistrate other than Hon. S.M. Nyaga (P.M) for implementation of the orders herein.
58. Orders accordingly.
Dated, signed, and delivered on the Virtual Platform, Teams, this 3rd day of October 2025.
ANDAYI W. F.
JUDGE
In the presence of:
Gitau Kahiga for the Appellant.
Kamau holding brief for Murigu for the Respondent
Ummu holding brief for Job: Court Assistant.
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