[1] This is an appeal from the Ruling and Order of the Resident Magistrate’s Court dated 14 th June 2024. The Ruling was delivered in Ndhiwa Magistrate’s Court Succession Cause No. E045 of 2022: In the Matter of the Estate of Magolo Obunga alias Magolo Obunga Onyango. The Ruling was in respect of an objection raised by the appellants vide their Affidavit of Protest to the proposed Mode of Distribution made via the respondent’s Summons for Confirmation of Grant dated 19 th January 2023.
[2] Upon considering the evidence presented before him by way of affidavits, the learned magistrate came to the conclusion that:
“20. …the Objectors have failed to prove their claim for a portion of LPN 24 on a balance of probabilities.
21. Moreover, the Objector’s proposed mode of distribution clearly contravened the wishes of the deceased on how LPN 24 was to be distributed. The mode of distribution proposed by the Respondents reflected the wishes of the deceased.
22. Accordingly,
i. the Grant is Confirmed in the name of the Petitioners.
ii. LPN Kanyamwa/Kabonyo/Kwandiku/24 is allocated as follows:
a. Joshua Magolo Obunga 1.8 Ha
b. John Raila Magolo 1.8 Ha
c. Sophia Atieno Obunga 4.4 Ha
d. Justus Okoth Magolo 11 Ha
iii. LPN Kanyamwa/Kabonyo/Kwandiku/417 is allocated to Elsa Agutu Owuor considering that the Objectors in their submissions and affidavits proposed the same be allocated to the aforesaid Elsa.
iv. Each party to bear their own costs as this is a family matter.
[3] Being aggrieved by the decision of the lower court, the appellants filed this appeal vide their Memorandum of Appeal dated 11 th July 2024, contending that:
[a] The learned magistrate erred in law in determining a succession cause without paying regard to the basic principles laid down in the Law of Succession Act or general principles of law.
[b] The learned magistrate erred in fact and in law in solely relying on the questionable evidence of one party and in disregard of the evidence of the other.
[c] The learned magistrate erred in fact and in law in deciding that once a party was bequeathed a gift by a 3 rd party, they stood no chance of inheriting the estate of their parent.
[d] The learned magistrate misdirected himself on matter of fact and law when he decided his ruling based on disputed Minutes of an alleged meeting and deemed it ‘the will of the deceased.’
[e] The learned magistrate misdirected himself on matters of fact and law by inferring an oral will of the deceased more than 30 years after the death of the deceased.
[f] The learned magistrate erred in law by disregarding the provisions of the Law of Succession Act on intestacy and disinheriting the deceased’s daughters despite them showing their interest in the estate of the deceased.
[g] The learned magistrate erred in fact and in law by considering the properties bequeathed to the appellants to disinherit them, and utterly ignoring the properties bequeathed to the respondents by the deceased during his lifetime.
[h] The learned magistrate failed to apply judicially and to adequately evaluate the facts and submissions on record and thereby arrived at a ruling unsustainable in law.
[4] Accordingly, the appellants prayed that their appeal be allowed with costs and that the ruling of the lower court be set aside and the said Summons for Confirmation of Grant be dismissed entirely with costs.
[5] The appeal was canvassed by way of written submissions pursuant to the directions given herein on 20 th May 2025. In accordance with those directions, the appellants filed written submissions dated 29 th August 2025 in which they reiterated the factual background to the appeal as well as a summary of the evidence presented before the lower court. The appellants proposed the following issues for determination:
[a] Whether the properties known as Parcel Nos. KANYAMWA/KABONYO/KWANDIKU/160 and 166 formed a part of the estate of the deceased for purposes of succession.
[b] Whether an heir to the estate of the deceased who had acquired his own property has no share in the estate of the deceased.
[c] Whether the will of the deceased can be inferred without the existence of a written will.
[d] Whether the parties in intestacy may receive different unequal shares of the estate of the deceased.
[e] Whether the Minutes produced by the respondents in the trial court were admissible.
[6] On the first issue, namely, whether Land Parcel Numbers KANYAMWA/KABONYO/KWANDIKU/160 and 166 formed a part of the estate of the deceased for purposes of succession, the appellants submitted that, according to the doctrine of survivorship, jointly owned property is not available for distribution as part of the estate of a deceased person since it automatically devolves upon the survivor. They pointed out that the two parcels of land aforementioned are both registered in the joint names of Magolo Obunga (deceased) and Nyangwara Magolo ; and that upon the death of the deceased, ownership thereof vested in Nyangwara Magolo.
[7] In support of their argument, the appellants relied on Section 3 of the Law of Succession Act in which “estate” is defined to mean the free property of a deceased person, while “free property” in relation to a deceased person is defined to mean the property of which that person was legally competent freely to dispose of during his lifetime and in respect of which his interest has not been terminated by his death. They also relied on the following authorities to buttress their argument that the two properties that were jointly owned by the deceased and Nyangwara Magolo did not form free property of the deceased and therefore not available for distribution under intestacy:
[a] Re Estate of Job Ndunda Muthike (Deceased) [2018] eKLR
[b] Isabel Chelangat v Samuel Tiro [2012] eKLR
[c] Re Joseph Kipkemoi Limo [2025] KEHC 1623 (KLR),
[8] Therefore, the appellants urged the Court to find that Parcel Numbers KANYAMWA/KABONYO/KWANDIKU/160 and 166 did not form part of the estate of the deceased and therefore could not be transferred under the rules of intestacy.
[9] On whether the learned magistrate erred by disinheriting Bonface Magolo on the ground that he had received a prior allocation from the deceased, the appellants submitted that, at the time of adjudication, Bonface Magolo was an adult person who already had a family of his own and had acquired property form the clan which was registered in his name. They pointed out that the respondents produced a Certificate of Search before the lower court indicating that the said Bonface Magolo had property of his own which was registered in his name as proprietor, but failed to demonstrate that the piece of land had been given to him by the deceased as a gift in his lifetime.
[10] The appellants made reference to Section 29 of the Law of Succession Act, and submitted that Bonface Magolo was entitled to a share of the estate of the deceased notwithstanding that he was not maintained by the deceased immediately prior to his death. He urged the Court to consider the decision in Re Joseph Kipkemboi Limo (supra) in which the court made a 10% provision for the deceased’s son despite the fact that he was an adult, had acquired his own property and was a surviving owner of certain properties jointly owned with the deceased. They urged the Court to find that Bonface Magolo, being a son to the deceased, has an equal right to the share of the estate of the deceased despite having acquired property elsewhere, and was therefore wrongfully disinherited.
[11] On whether a Will can be inferred by the court in the absence of a written Will, the appellants impugned the ruling of the lower court, contending that the learned magistrate erred in relying on Minutes of an alleged family meeting and in referring to them as the wishes of the deceased on how his estate ought to be distributed in the event of his demise. They submitted that the only evidence of the respondents to support the wishes of the deceased are the uncorroborated, undated Minutes of a purported meeting; which Minutes are disputed. They therefore contended that where, as in this case, the Minutes were disputed, the learned magistrate had no option but to fall back on the provisions of the Law of Succession Act.
[12] Further to the foregoing, the appellants contended that:
[a] The Minutes were not presented before the lower court by the maker and the respondents did not make any attempt to satisfy the court as to why the maker was not called as a witness.
[b] The Minutes produced were not presented in their original form, or certified to be a true copy of the original as is contemplated by Section 35 (2) of the Evidence Act.
[c] The Minutes are undated, raising questions as to when the document was compiled or when the purported meeting took place.
[d] The Minutes amounts to hearsay evidence, as they speaks of people who were not present in the alleged meeting, as well as alleged utterances of persons who are now deceased.
[13] The appellants made reference to Section 2(1) of the Law of Succession Act as to the applicable procedure on intestacy. They also placed reliance on the following authorities in urging the Court to disregard the Minutes which formed the basis of the lower court’s decision:
[a] Re Estate of Mong’are Obanyi [2024] KEHC 4630 (KLR)
[b] Estate of Ngaruhiya Kamau (Deceased) [2025] KEHC 4303 (KLR)
[14] On whether the parties in intestacy may receive unequal shares of the estate of the deceased the appellants pointed out that, in the impugned ruling, the beneficiaries of the deceased were treated differentially, not only in terms of the acres apportioned to them but also because Bonface Magolo and the daughters were completely left out. They submitted that the deceased had two daughters, Pesila Awino Oduk and Siprina Osuago Nyangweso , who are married. They pointed out that the two daughters of the deceased were neither included in the introduction letter by the chief nor provided for in the distribution of the estate by the trial court.
[15] The appellants further submitted that the said daughters were never invited to intimate to the court whether or not they had an interest in the deceased’s estate. They contended that the daughters were excluded notwithstanding that they had sworn affidavits declaring their interests in a share of the estate as surviving children of the deceased. The appellants relied on Article 27(3) of the Constitution, Section 38 of the Law of Succession Act and the case of In the Matter of the Estate of M’Ngarithi M’Miriti alias Paul M’Ngarithi M’Miriti (Deceased) [2017] eKLR in urging the Court to find that Bonface Magolo and the two daughters of the deceased were wrongfully disinherited.
[16] It was therefore the submission of the appellants that the learned magistrate misdirected himself in relying on Minutes whose authenticity had been questioned to disinherit some of the beneficiaries of the deceased. They prayed that the said Minutes be declared inadmissible and expunged from the record.
[17] On their part, the respondents proposed the following issues for determination in their written submissions dated 18 th November 2025:
[a] Whether the appeal is merited.
[b] Who bears the costs of the appeal?
[18] The respondents faulted the argument by the appellants that parcels KANYAMWA/KABONYO/KWANDIKU 160 and 166, which are registered in the joint names of the deceased and Nyaguara Magolo , should not be deemed part of the estate of the deceased, since the property should automatically devolve to the survivor. They made reference to Jethwa v Jethwa (Environment & Land Case 16 of 2023) [2023] eKLR in which the terms “joint tenancy” as opposed to “common tenancy” was discussed. The court held:
”…the term "joint tenancy" refers to a legal arrangement in which two or more people own a property together, each with equal rights and obligations. Joint tenancies can be created by married and non-married couples, friends, relatives, and business associates. This legal relationship creates what is known as a right of survivorship so if one owner dies, their interest in the property is directly passed on to the surviving party(s) without having to go through probate or court system.
Tenancy in Common is different from joint tenancy, the former is a legal arrangement in which two or more parties share ownership rights in a real estate property or parcel of land. Each independent owner may control an equal or different percentage of the total property, whether commercial or residential. The parties are known as tenants in common. Tenancy in Common is one of three types of shared ownership. The other two types are Joint Tenancy and Tenancy by Entirety. A tenancy in common has no right of survivorship and when a tenant in common dies, their share of the property passes to their estate, where a beneficiary of the share of property may be named. Tenancy by the entirety refers to a form of shared property ownership that is reserved only for married couples. A tenancy by the entirety permits spouses to jointly own property as a single legal entity. This means that each spouse has an equal and undivided interest in the property”
[19] They argued that the appellants’ allegation that the parcels KANYAMWA/KABONYO/KWANDIKU/160 and 166 are held in a joint tenancy was not backed by any evidence at all. They contended that there was no evidence whatsoever presented before the lower court by the appellants in support of the alleged joint tenancy in respect of the two parcels mentioned above. They further submitted that, in relying on the Minutes of the family meeting, the learned magistrate did not misdirect himself at all. The respondents relied on In Re Morogo A Mugun (Deceased) [2019] in which similar Minutes were relied on to determine the Mode of Distribution of the deceased’s estate.
[20] In response to the appellant’s contention that Bonface Magolo who is the eldest son of the deceased had been disinherited, the respondents pointed out that, at paragraph 10-12 of the ruling, the trial court clearly indicated that Bonface Magolo had actually proposed that the whole of LPN KANYAMWA/KWANDIKU/24 should be allocated to Justus Magolo according to the Minutes of Deceased family meeting. In their submission, the appellants are estopped from changing positions at this stage to state that the land was given to him by his clan. The respondent relied on Abdul v Mokua (Civil Appeal E077 of 2023) [2025] and Palace Investment Ltd v Geoffrey Kariuki Mwenda & Another [2015] eKLR, to support their submissions that the burden of proof was on the appellants to prove their allegations on a balance of probabilities.
[21] In the respondents’ submission, the Minutes relied on by the court are the closest to a will of the deceased since the family was able to reach a particular level of understanding among the beneficiaries of the deceased. They contended that matters relating to succession often depend on the agreements reached at the family level and a meeting involving the dependants of the deceased and a resolution of the same is often of great value. They cited Justus Thiora Kiugu & 4 others v Joyce Nkatha Kiugu & another [2015] eKLR and posited that the learned magistrate did not err but merely balanced the evidence of both the petitioners and the objectors to arrive at the finding on a balance of probabilities.
[22] According to the respondents, it is not uncommon to find that the dependants and/or beneficiaries of a deceased person end up having different shares of the estate or for some members to get nothing from the estate of the deceased. In their submission this is not illegal but based on the consent of the beneficiaries of the estate of the deceased person. They relied on Mukila & another v M’Mulika & another [2024] eKLR and Jairo Kinuthia Kanyoria v Zipporah Wanjiku & 7 Others [2017] eKLR for the proposition that courts have on occasions shunned equal distribution for equitable distribution.
[23] In response to the appellants’ claim that the daughters of the deceased were left out, the respondents submitted that those allegations were never raised during the family meeting and therefore are belated. They relied on the maxim that equity does not aid the indolent. They also cited Mungai v Kimanu (Civil Appeal 42 of 2004) [2025] and contended that the appellants cannot now fault the court for relying on the Minutes of a meeting that they were part of.
[24] The respondents also addressed the issue of costs and submitted that, although costs are awarded at the discretion of the court, in this instance they are entitled to costs of the appeal. They contended that they had raised substantive reasons as to why the appeal should be dismissed and therefore prayed that costs be awarded to them, in the event of dismissal of the appeal. The respondents relied on the case of Ocean Engineering Works Ltd & Another v SBM Bank of Kenya Ltd (Civil Appeal 112 of 2021) [2024] KEELC 4724 (KLR) in which the Court held as follows with regard to costs:
“It is now well established that the issue of Costs is a discretion of the Court. Costs mean the award a party is awarded at the conclusion of a legal action or proceedings in any litigation. The provision of Section 27 (1) of the Civil Procedure Act (Cap 21) holds that costs follow the events. By event it means the results or outcome of the legal action or proceedings.”
[25] This being a first appeal, it is the duty of the Court to re-evaluate the evidence adduced before the lower court and come to its own conclusions thereon while bearing in mind that it did not have the opportunity to see or hear the witnesses. In Selle & another v Associated Motor Boat Co. Ltd & Others [1968] EA 123 it was held that:
"...this court is not bound necessarily to accept the findings of fact by the court below. An appeal to this 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..."
[26] From the record of the lower court it is manifest that the late Magolo Obunga alias Magolo Obunga Onyango died intestate on 4 th November 1987. The record further shows that a Petition for Grant of Letters of Administration Intestate was filed by four of the deceased’s beneficiaries and that Grant was issued by the lower court on 26 th April 2022 to the following:
[a] Jane Adhiambo Samba - widow
[b] Grace Auma Nyaguara - daughter in law
[c] Sophia Atieno Obunga – daughter in law, and
[d] Justus Okoth Magolo - son
[27] Apparently, the four petitioners did not fully disclose the assets the deceased in Form P&A. 5. At paragraph 6 thereof, they averred that the estate comprised of NSSF benefits estimated at Kshs. 500,000/= only. At the confirmation stage the beneficiaries differed on how the estate was to be distributed. Accordingly, the appellants, the respondents and some of the other beneficiaries filed their respective affidavits making disclosures that had not hitherto been made by the respondents. In particular, the appellants, Bonface Magolo, Pesila Awino Oduk (deceased’s daughter), Siprina Osuago Nyangueso (deceased’s daughter) and Elsa Agutu Owuor (deceased’s daughter-in-law) swore affidavits in opposition to the respondent’s proposed Mode of Distribution for the following reasons:
[a] The respondents included parcels of land that did not form part of the estate of the deceased;
[b] The respondents’ proposed Mode of Distribution disinherited other rightful heirs of the deceased, including the deceased’s own son and daughters;
[c] The respondents disrupted the possession of some of the beneficiaries of the deceased’s estate despite the heirs having lived on the estate property for a lengthy period of time.
[d] The respondents disinherited some of the survivors of the deceased by allocating portions of their inheritance to other persons.
[28] According to Form P&A.5, the deceased was survived by the following:
[a] Jane Adhiambo Samba - 3 rd widow (now deceased)
[b] Bonface Magolo - son
[c] Justus Okoth Magolo - son
[d] Joshua Ouma Magolo - son
[e] Grace Auma Nyagwara - daughter-in-law
[f] Sophia Atieno Obunga- daughter-in-law
[g] Elsa Agutu Owuor- daughter-in-law
[h] George Nyagwara – grandson
[i] Joseph Odero – grandson
[29] In support of their objection, the appellants swore an affidavit of protest dated 23 rd June 2023. They also relied on their affidavits dated 1 st February 2024, affidavits of Elsa Agutu and Bonface Magolo dated 6 th March 2024, Further affidavits of Bonface Magolo and Grace Auma Nyagwara and affidavits of Pesila Awino and Siprina Osuago dated 22 nd March 2024. The appellants annexed copies of documents in proof of all the estate of the deceased, as well as properties of the deceased registered in the names of some of the surviving heirs to further affirm their case, being Land Parcel KANYAMWA/KABONYO/KWANDIKU/24, 417, 160, 166 and 416.
[30] It is manifest from the annexures that:
[a] Land Parcel Numbers KANYAMWA/KABONYO/KWANDIKU 160 and 166, measuring 3.4 Hectares each, are both registered in the joint names of Nyangwara Magolo and the deceased, Magolo Obunga;
[b] Land Parcel Number KANYAMWA/KABONYO/KWANDIKU 417, measuring 7.8 Hectares, is registered in the name of the deceased, but according to the parties has all along been occupied by Elsa Agutu Owuor , one of the daughters in law of the deceased.
[c] Land Parcel Number KANYAMWA/KABONYO/KWANDIKU/ 416, measuring 11.4 Hectares, was bequeathed by the deceased in his lifetime to Morris Obunga , one of the sons of the deceased who is since deceased. The property is in the possession of his widow, Sophia Obunga , the 1 st respondent;
[d] Land Parcel Number KANYAMWA/KABONYO/KWANDIKU/24 was the deceased’s homestead and is registered in the deceased’s name. It measures approximately 19 Hectares.
[31] The affidavits filed before the lower court further indicate that, at the time of the demise of the deceased, the 1 st appellant, Grace Auma Nyagwara, was already in possession of a portion of Land Parcel Number KANYAMWA/KABONYO/KWANDIKU/24 as a daughter-in-law of the deceased; and that she is still in possession thereof to date in spite of having been given another piece of land for occupation. It is further evident from the material placed before the lower court that Bonface Magolo had acquired his own property during the lifetime of the deceased, and that property was deposed to herein to be Land Parcel Number KANYAMWA/KABONYO/KWANDIKU/156. In addition, the evidence presented before the lower court shows that Bonface was registered as a joint proprietor with the deceased in respect of Parcel Numbers KANYAMWA/KABONYO/KWANDIKU/160 and 166.
[32] In the light of the foregoing, the appellants pointed out that the respondents too had been bequeathed parcels of land by the deceased in his lifetime, which they concealed from the court. The appellants pointed out that, as a result of the concealment, some of the beneficiaries ended up receiving a bigger portion of the deceased’s free estate to the disadvantage of other heirs. Accordingly, it is manifest that the only properties that the lower court had occasion to pronounce itself on were KANYAMWA/KABONYO/KWANDIKU/24 and 417.
[33] Therefore, the issues for determination, as I see them, are:
[a] Whether the properties known as Parcel Nos. KANYAMWA/KABONYO/KWANDIKU/160 and 166 formed a part of the estate of the deceased for purposes of succession.
[b] Whether an heir to the estate of the deceased who has acquired his own property has any share in the estate of the deceased.
[c] Whether the parties in intestacy may receive different unequal shares of the estate of the deceased.
A. On Land Parcels Nos. KANYAMWA/KABONYO/KWANDIKU/160 and 166 and whether they formed part of the estate of the deceased for purposes of succession:
[34] The deceased having died intestate, the applicable law is as provided for in the Law of Succession Act. Section 2(1) thereof states:
Except as otherwise expressly provided in this Act or any other written law, the provisions of this Act shall constitute the law of Kenya in respect of, and shall have universal application to, all cases of intestate or testamentary succession to the estates of deceased persons dying after the commencement of this Act and to the administration of estates of those persons.
[35] In addition, Part V of the Act provides the formula for distribution of the estate of a deceased person in the absence of a valid oral or written will. Therefore, the wishes of a deceased person under intestacy, while admissible and worthy of consideration by the probate court, cannot override the express provisions of statute where there is no consensus by the parties on the Mode of Distribution. In this respect, I am in agreement with the position taken in Re Estate of Mong’are Obanyi [2024] KEHC 4630 (KLR) and Re Estate of Ngaruhiya Kamau (Deceased) [2025] KEHC 4303 (KLR) that in the absence of a consensus by the parties as to the mode of distribution of the deceased’s estate, the court was bound to follow the procedure laid down in Section 35 of the Law of Succession Act.
[36] The position was reiterated in R e Estate of Justus Nguyo Waititu alias Jastus Nguyo Waititu (Deceased) [2019] KEHC 4368 (KLR) as follows:
“Where there is a disagreement, as has turned out to be the case here, then the only available alternative open to this court is to revert to the strict application of section 35(1) (b) of the Act and transfer the entire net intestate estate to the deceased’s widow subject, of course, to a life interest.”
[37] For purposes of the Law of Succession Act, what is available for distribution is the free estate of the deceased. In Section 3 thereof, “free property” is defined as follows:
“free property", in relation to a deceased person, means the property of which that person was legally competent freely to dispose during his lifetime, and in respect of which his interest has not been terminated by his death;”
[38] From the averments of the parties, Parcel Nos. KANYAMWA/KABONYO/KWANDIKU/160 and 166 were given by the deceased to Bonface Nyaguara during the deceased’s lifetime. To that extent, the two pieces were not available for distribution by the lower court. It is trite that a gift inter vivos must be respected at the time of distribution by letting it remain with the beneficiary thus gifted by the deceased in his lifetime, so long as that gift is taken into consideration at the time of distribution for purposes of fairness and equity.
[39] Section 42 of the Law of Succession Act is explicit in this regard. It states:
“Where—
(a) an intestate has, during his lifetime or by will, paid, given or settled any property to or for the benefit of a child, grandchild or house; or
(b) property has been appointed or awarded to any child or grandchild under the provisions of section 26 or section 35 of this Act,
that property shall be taken into account in determining the share of the net intestate estate finally accruing to the child, grandchild or house.”
[40] The Court was addressed at length on the nature of ownership of the two pieces of land as between the deceased and Bonface Nyaguara, with the appellants contending that it was a joint tenancy and therefore the interest of the deceased in the two parcels of land ceased upon his death. It is noteworthy that the two appellants are the widow and son of Bonface Nyaguara and their contention was therefore that upon the demise of the deceased, ownership of the two properties vested in Bonface Nyaguara by dint of the doctrine of jus accrescendi.
[41] In Isabel Chelangat v Samuel Tiro [2012] eKLR, the court held:
“A joint tenancy imparts to the joint owners, with respect to all other persons than themselves, the properties of one single owner. Although as between themselves joint tenants have separate rights, as against everyone else they are in the position of a single owner. Joint tenancy carries with it the right of survivorship and “four unities.” The right of survivorship (jus accrescendi) means that when one joint owner dies, his interest in the land passes on to the surviving joint tenant. A joint tenancy cannot pass under will or intestacy of a joint tenant so long as there is a surviving joint tenant as the right of survivorship takes precedence.”
[42] Similarly, in Re Joseph Kipkemoi Limo [2025] KEHC 1623 (KLR), the court held that property that was jointly owned by the deceased did not form free property of the deceased and therefore did not fall under intestacy. Although the respondents contended that the fact of joint ownership was not proved before the lower court to the requisite standard, it suffices that they conceded to the fact that the land was owned jointly by the deceased and Bonface before his death. Therefore, the two pieces of land, as has been pointed out herein above, did not form part of the free estate of the deceased for purposes of succession. It is also noteworthy that the two pieces of land were not listed in Form P&A.5 as comprising the estate of the deceased.
[43] If the administrators were minded to claim the deceased’s portions thereof on behalf of the estate then the best course was for them to sue before the Environment and Land Court for purposes of determination of the interest of the deceased. It has often been held that the probate court is not well-suited and indeed does not
[...truncated]
[2] Upon considering the evidence presented before him by way of affidavits, the learned magistrate came to the conclusion that:
“20. …the Objectors have failed to prove their claim for a portion of LPN 24 on a balance of probabilities.
21. Moreover, the Objector’s proposed mode of distribution clearly contravened the wishes of the deceased on how LPN 24 was to be distributed. The mode of distribution proposed by the Respondents reflected the wishes of the deceased.
22. Accordingly,
i. the Grant is Confirmed in the name of the Petitioners.
ii. LPN Kanyamwa/Kabonyo/Kwandiku/24 is allocated as follows:
a. Joshua Magolo Obunga 1.8 Ha
b. John Raila Magolo 1.8 Ha
c. Sophia Atieno Obunga 4.4 Ha
d. Justus Okoth Magolo 11 Ha
iii. LPN Kanyamwa/Kabonyo/Kwandiku/417 is allocated to Elsa Agutu Owuor considering that the Objectors in their submissions and affidavits proposed the same be allocated to the aforesaid Elsa.
iv. Each party to bear their own costs as this is a family matter.
[3] Being aggrieved by the decision of the lower court, the appellants filed this appeal vide their Memorandum of Appeal dated 11 th July 2024, contending that:
[a] The learned magistrate erred in law in determining a succession cause without paying regard to the basic principles laid down in the Law of Succession Act or general principles of law.
[b] The learned magistrate erred in fact and in law in solely relying on the questionable evidence of one party and in disregard of the evidence of the other.
[c] The learned magistrate erred in fact and in law in deciding that once a party was bequeathed a gift by a 3 rd party, they stood no chance of inheriting the estate of their parent.
[d] The learned magistrate misdirected himself on matter of fact and law when he decided his ruling based on disputed Minutes of an alleged meeting and deemed it ‘the will of the deceased.’
[e] The learned magistrate misdirected himself on matters of fact and law by inferring an oral will of the deceased more than 30 years after the death of the deceased.
[f] The learned magistrate erred in law by disregarding the provisions of the Law of Succession Act on intestacy and disinheriting the deceased’s daughters despite them showing their interest in the estate of the deceased.
[g] The learned magistrate erred in fact and in law by considering the properties bequeathed to the appellants to disinherit them, and utterly ignoring the properties bequeathed to the respondents by the deceased during his lifetime.
[h] The learned magistrate failed to apply judicially and to adequately evaluate the facts and submissions on record and thereby arrived at a ruling unsustainable in law.
[4] Accordingly, the appellants prayed that their appeal be allowed with costs and that the ruling of the lower court be set aside and the said Summons for Confirmation of Grant be dismissed entirely with costs.
[5] The appeal was canvassed by way of written submissions pursuant to the directions given herein on 20 th May 2025. In accordance with those directions, the appellants filed written submissions dated 29 th August 2025 in which they reiterated the factual background to the appeal as well as a summary of the evidence presented before the lower court. The appellants proposed the following issues for determination:
[a] Whether the properties known as Parcel Nos. KANYAMWA/KABONYO/KWANDIKU/160 and 166 formed a part of the estate of the deceased for purposes of succession.
[b] Whether an heir to the estate of the deceased who had acquired his own property has no share in the estate of the deceased.
[c] Whether the will of the deceased can be inferred without the existence of a written will.
[d] Whether the parties in intestacy may receive different unequal shares of the estate of the deceased.
[e] Whether the Minutes produced by the respondents in the trial court were admissible.
[6] On the first issue, namely, whether Land Parcel Numbers KANYAMWA/KABONYO/KWANDIKU/160 and 166 formed a part of the estate of the deceased for purposes of succession, the appellants submitted that, according to the doctrine of survivorship, jointly owned property is not available for distribution as part of the estate of a deceased person since it automatically devolves upon the survivor. They pointed out that the two parcels of land aforementioned are both registered in the joint names of Magolo Obunga (deceased) and Nyangwara Magolo ; and that upon the death of the deceased, ownership thereof vested in Nyangwara Magolo.
[7] In support of their argument, the appellants relied on Section 3 of the Law of Succession Act in which “estate” is defined to mean the free property of a deceased person, while “free property” in relation to a deceased person is defined to mean the property of which that person was legally competent freely to dispose of during his lifetime and in respect of which his interest has not been terminated by his death. They also relied on the following authorities to buttress their argument that the two properties that were jointly owned by the deceased and Nyangwara Magolo did not form free property of the deceased and therefore not available for distribution under intestacy:
[a] Re Estate of Job Ndunda Muthike (Deceased) [2018] eKLR
[b] Isabel Chelangat v Samuel Tiro [2012] eKLR
[c] Re Joseph Kipkemoi Limo [2025] KEHC 1623 (KLR),
[8] Therefore, the appellants urged the Court to find that Parcel Numbers KANYAMWA/KABONYO/KWANDIKU/160 and 166 did not form part of the estate of the deceased and therefore could not be transferred under the rules of intestacy.
[9] On whether the learned magistrate erred by disinheriting Bonface Magolo on the ground that he had received a prior allocation from the deceased, the appellants submitted that, at the time of adjudication, Bonface Magolo was an adult person who already had a family of his own and had acquired property form the clan which was registered in his name. They pointed out that the respondents produced a Certificate of Search before the lower court indicating that the said Bonface Magolo had property of his own which was registered in his name as proprietor, but failed to demonstrate that the piece of land had been given to him by the deceased as a gift in his lifetime.
[10] The appellants made reference to Section 29 of the Law of Succession Act, and submitted that Bonface Magolo was entitled to a share of the estate of the deceased notwithstanding that he was not maintained by the deceased immediately prior to his death. He urged the Court to consider the decision in Re Joseph Kipkemboi Limo (supra) in which the court made a 10% provision for the deceased’s son despite the fact that he was an adult, had acquired his own property and was a surviving owner of certain properties jointly owned with the deceased. They urged the Court to find that Bonface Magolo, being a son to the deceased, has an equal right to the share of the estate of the deceased despite having acquired property elsewhere, and was therefore wrongfully disinherited.
[11] On whether a Will can be inferred by the court in the absence of a written Will, the appellants impugned the ruling of the lower court, contending that the learned magistrate erred in relying on Minutes of an alleged family meeting and in referring to them as the wishes of the deceased on how his estate ought to be distributed in the event of his demise. They submitted that the only evidence of the respondents to support the wishes of the deceased are the uncorroborated, undated Minutes of a purported meeting; which Minutes are disputed. They therefore contended that where, as in this case, the Minutes were disputed, the learned magistrate had no option but to fall back on the provisions of the Law of Succession Act.
[12] Further to the foregoing, the appellants contended that:
[a] The Minutes were not presented before the lower court by the maker and the respondents did not make any attempt to satisfy the court as to why the maker was not called as a witness.
[b] The Minutes produced were not presented in their original form, or certified to be a true copy of the original as is contemplated by Section 35 (2) of the Evidence Act.
[c] The Minutes are undated, raising questions as to when the document was compiled or when the purported meeting took place.
[d] The Minutes amounts to hearsay evidence, as they speaks of people who were not present in the alleged meeting, as well as alleged utterances of persons who are now deceased.
[13] The appellants made reference to Section 2(1) of the Law of Succession Act as to the applicable procedure on intestacy. They also placed reliance on the following authorities in urging the Court to disregard the Minutes which formed the basis of the lower court’s decision:
[a] Re Estate of Mong’are Obanyi [2024] KEHC 4630 (KLR)
[b] Estate of Ngaruhiya Kamau (Deceased) [2025] KEHC 4303 (KLR)
[14] On whether the parties in intestacy may receive unequal shares of the estate of the deceased the appellants pointed out that, in the impugned ruling, the beneficiaries of the deceased were treated differentially, not only in terms of the acres apportioned to them but also because Bonface Magolo and the daughters were completely left out. They submitted that the deceased had two daughters, Pesila Awino Oduk and Siprina Osuago Nyangweso , who are married. They pointed out that the two daughters of the deceased were neither included in the introduction letter by the chief nor provided for in the distribution of the estate by the trial court.
[15] The appellants further submitted that the said daughters were never invited to intimate to the court whether or not they had an interest in the deceased’s estate. They contended that the daughters were excluded notwithstanding that they had sworn affidavits declaring their interests in a share of the estate as surviving children of the deceased. The appellants relied on Article 27(3) of the Constitution, Section 38 of the Law of Succession Act and the case of In the Matter of the Estate of M’Ngarithi M’Miriti alias Paul M’Ngarithi M’Miriti (Deceased) [2017] eKLR in urging the Court to find that Bonface Magolo and the two daughters of the deceased were wrongfully disinherited.
[16] It was therefore the submission of the appellants that the learned magistrate misdirected himself in relying on Minutes whose authenticity had been questioned to disinherit some of the beneficiaries of the deceased. They prayed that the said Minutes be declared inadmissible and expunged from the record.
[17] On their part, the respondents proposed the following issues for determination in their written submissions dated 18 th November 2025:
[a] Whether the appeal is merited.
[b] Who bears the costs of the appeal?
[18] The respondents faulted the argument by the appellants that parcels KANYAMWA/KABONYO/KWANDIKU 160 and 166, which are registered in the joint names of the deceased and Nyaguara Magolo , should not be deemed part of the estate of the deceased, since the property should automatically devolve to the survivor. They made reference to Jethwa v Jethwa (Environment & Land Case 16 of 2023) [2023] eKLR in which the terms “joint tenancy” as opposed to “common tenancy” was discussed. The court held:
”…the term "joint tenancy" refers to a legal arrangement in which two or more people own a property together, each with equal rights and obligations. Joint tenancies can be created by married and non-married couples, friends, relatives, and business associates. This legal relationship creates what is known as a right of survivorship so if one owner dies, their interest in the property is directly passed on to the surviving party(s) without having to go through probate or court system.
Tenancy in Common is different from joint tenancy, the former is a legal arrangement in which two or more parties share ownership rights in a real estate property or parcel of land. Each independent owner may control an equal or different percentage of the total property, whether commercial or residential. The parties are known as tenants in common. Tenancy in Common is one of three types of shared ownership. The other two types are Joint Tenancy and Tenancy by Entirety. A tenancy in common has no right of survivorship and when a tenant in common dies, their share of the property passes to their estate, where a beneficiary of the share of property may be named. Tenancy by the entirety refers to a form of shared property ownership that is reserved only for married couples. A tenancy by the entirety permits spouses to jointly own property as a single legal entity. This means that each spouse has an equal and undivided interest in the property”
[19] They argued that the appellants’ allegation that the parcels KANYAMWA/KABONYO/KWANDIKU/160 and 166 are held in a joint tenancy was not backed by any evidence at all. They contended that there was no evidence whatsoever presented before the lower court by the appellants in support of the alleged joint tenancy in respect of the two parcels mentioned above. They further submitted that, in relying on the Minutes of the family meeting, the learned magistrate did not misdirect himself at all. The respondents relied on In Re Morogo A Mugun (Deceased) [2019] in which similar Minutes were relied on to determine the Mode of Distribution of the deceased’s estate.
[20] In response to the appellant’s contention that Bonface Magolo who is the eldest son of the deceased had been disinherited, the respondents pointed out that, at paragraph 10-12 of the ruling, the trial court clearly indicated that Bonface Magolo had actually proposed that the whole of LPN KANYAMWA/KWANDIKU/24 should be allocated to Justus Magolo according to the Minutes of Deceased family meeting. In their submission, the appellants are estopped from changing positions at this stage to state that the land was given to him by his clan. The respondent relied on Abdul v Mokua (Civil Appeal E077 of 2023) [2025] and Palace Investment Ltd v Geoffrey Kariuki Mwenda & Another [2015] eKLR, to support their submissions that the burden of proof was on the appellants to prove their allegations on a balance of probabilities.
[21] In the respondents’ submission, the Minutes relied on by the court are the closest to a will of the deceased since the family was able to reach a particular level of understanding among the beneficiaries of the deceased. They contended that matters relating to succession often depend on the agreements reached at the family level and a meeting involving the dependants of the deceased and a resolution of the same is often of great value. They cited Justus Thiora Kiugu & 4 others v Joyce Nkatha Kiugu & another [2015] eKLR and posited that the learned magistrate did not err but merely balanced the evidence of both the petitioners and the objectors to arrive at the finding on a balance of probabilities.
[22] According to the respondents, it is not uncommon to find that the dependants and/or beneficiaries of a deceased person end up having different shares of the estate or for some members to get nothing from the estate of the deceased. In their submission this is not illegal but based on the consent of the beneficiaries of the estate of the deceased person. They relied on Mukila & another v M’Mulika & another [2024] eKLR and Jairo Kinuthia Kanyoria v Zipporah Wanjiku & 7 Others [2017] eKLR for the proposition that courts have on occasions shunned equal distribution for equitable distribution.
[23] In response to the appellants’ claim that the daughters of the deceased were left out, the respondents submitted that those allegations were never raised during the family meeting and therefore are belated. They relied on the maxim that equity does not aid the indolent. They also cited Mungai v Kimanu (Civil Appeal 42 of 2004) [2025] and contended that the appellants cannot now fault the court for relying on the Minutes of a meeting that they were part of.
[24] The respondents also addressed the issue of costs and submitted that, although costs are awarded at the discretion of the court, in this instance they are entitled to costs of the appeal. They contended that they had raised substantive reasons as to why the appeal should be dismissed and therefore prayed that costs be awarded to them, in the event of dismissal of the appeal. The respondents relied on the case of Ocean Engineering Works Ltd & Another v SBM Bank of Kenya Ltd (Civil Appeal 112 of 2021) [2024] KEELC 4724 (KLR) in which the Court held as follows with regard to costs:
“It is now well established that the issue of Costs is a discretion of the Court. Costs mean the award a party is awarded at the conclusion of a legal action or proceedings in any litigation. The provision of Section 27 (1) of the Civil Procedure Act (Cap 21) holds that costs follow the events. By event it means the results or outcome of the legal action or proceedings.”
[25] This being a first appeal, it is the duty of the Court to re-evaluate the evidence adduced before the lower court and come to its own conclusions thereon while bearing in mind that it did not have the opportunity to see or hear the witnesses. In Selle & another v Associated Motor Boat Co. Ltd & Others [1968] EA 123 it was held that:
"...this court is not bound necessarily to accept the findings of fact by the court below. An appeal to this 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..."
[26] From the record of the lower court it is manifest that the late Magolo Obunga alias Magolo Obunga Onyango died intestate on 4 th November 1987. The record further shows that a Petition for Grant of Letters of Administration Intestate was filed by four of the deceased’s beneficiaries and that Grant was issued by the lower court on 26 th April 2022 to the following:
[a] Jane Adhiambo Samba - widow
[b] Grace Auma Nyaguara - daughter in law
[c] Sophia Atieno Obunga – daughter in law, and
[d] Justus Okoth Magolo - son
[27] Apparently, the four petitioners did not fully disclose the assets the deceased in Form P&A. 5. At paragraph 6 thereof, they averred that the estate comprised of NSSF benefits estimated at Kshs. 500,000/= only. At the confirmation stage the beneficiaries differed on how the estate was to be distributed. Accordingly, the appellants, the respondents and some of the other beneficiaries filed their respective affidavits making disclosures that had not hitherto been made by the respondents. In particular, the appellants, Bonface Magolo, Pesila Awino Oduk (deceased’s daughter), Siprina Osuago Nyangueso (deceased’s daughter) and Elsa Agutu Owuor (deceased’s daughter-in-law) swore affidavits in opposition to the respondent’s proposed Mode of Distribution for the following reasons:
[a] The respondents included parcels of land that did not form part of the estate of the deceased;
[b] The respondents’ proposed Mode of Distribution disinherited other rightful heirs of the deceased, including the deceased’s own son and daughters;
[c] The respondents disrupted the possession of some of the beneficiaries of the deceased’s estate despite the heirs having lived on the estate property for a lengthy period of time.
[d] The respondents disinherited some of the survivors of the deceased by allocating portions of their inheritance to other persons.
[28] According to Form P&A.5, the deceased was survived by the following:
[a] Jane Adhiambo Samba - 3 rd widow (now deceased)
[b] Bonface Magolo - son
[c] Justus Okoth Magolo - son
[d] Joshua Ouma Magolo - son
[e] Grace Auma Nyagwara - daughter-in-law
[f] Sophia Atieno Obunga- daughter-in-law
[g] Elsa Agutu Owuor- daughter-in-law
[h] George Nyagwara – grandson
[i] Joseph Odero – grandson
[29] In support of their objection, the appellants swore an affidavit of protest dated 23 rd June 2023. They also relied on their affidavits dated 1 st February 2024, affidavits of Elsa Agutu and Bonface Magolo dated 6 th March 2024, Further affidavits of Bonface Magolo and Grace Auma Nyagwara and affidavits of Pesila Awino and Siprina Osuago dated 22 nd March 2024. The appellants annexed copies of documents in proof of all the estate of the deceased, as well as properties of the deceased registered in the names of some of the surviving heirs to further affirm their case, being Land Parcel KANYAMWA/KABONYO/KWANDIKU/24, 417, 160, 166 and 416.
[30] It is manifest from the annexures that:
[a] Land Parcel Numbers KANYAMWA/KABONYO/KWANDIKU 160 and 166, measuring 3.4 Hectares each, are both registered in the joint names of Nyangwara Magolo and the deceased, Magolo Obunga;
[b] Land Parcel Number KANYAMWA/KABONYO/KWANDIKU 417, measuring 7.8 Hectares, is registered in the name of the deceased, but according to the parties has all along been occupied by Elsa Agutu Owuor , one of the daughters in law of the deceased.
[c] Land Parcel Number KANYAMWA/KABONYO/KWANDIKU/ 416, measuring 11.4 Hectares, was bequeathed by the deceased in his lifetime to Morris Obunga , one of the sons of the deceased who is since deceased. The property is in the possession of his widow, Sophia Obunga , the 1 st respondent;
[d] Land Parcel Number KANYAMWA/KABONYO/KWANDIKU/24 was the deceased’s homestead and is registered in the deceased’s name. It measures approximately 19 Hectares.
[31] The affidavits filed before the lower court further indicate that, at the time of the demise of the deceased, the 1 st appellant, Grace Auma Nyagwara, was already in possession of a portion of Land Parcel Number KANYAMWA/KABONYO/KWANDIKU/24 as a daughter-in-law of the deceased; and that she is still in possession thereof to date in spite of having been given another piece of land for occupation. It is further evident from the material placed before the lower court that Bonface Magolo had acquired his own property during the lifetime of the deceased, and that property was deposed to herein to be Land Parcel Number KANYAMWA/KABONYO/KWANDIKU/156. In addition, the evidence presented before the lower court shows that Bonface was registered as a joint proprietor with the deceased in respect of Parcel Numbers KANYAMWA/KABONYO/KWANDIKU/160 and 166.
[32] In the light of the foregoing, the appellants pointed out that the respondents too had been bequeathed parcels of land by the deceased in his lifetime, which they concealed from the court. The appellants pointed out that, as a result of the concealment, some of the beneficiaries ended up receiving a bigger portion of the deceased’s free estate to the disadvantage of other heirs. Accordingly, it is manifest that the only properties that the lower court had occasion to pronounce itself on were KANYAMWA/KABONYO/KWANDIKU/24 and 417.
[33] Therefore, the issues for determination, as I see them, are:
[a] Whether the properties known as Parcel Nos. KANYAMWA/KABONYO/KWANDIKU/160 and 166 formed a part of the estate of the deceased for purposes of succession.
[b] Whether an heir to the estate of the deceased who has acquired his own property has any share in the estate of the deceased.
[c] Whether the parties in intestacy may receive different unequal shares of the estate of the deceased.
A. On Land Parcels Nos. KANYAMWA/KABONYO/KWANDIKU/160 and 166 and whether they formed part of the estate of the deceased for purposes of succession:
[34] The deceased having died intestate, the applicable law is as provided for in the Law of Succession Act. Section 2(1) thereof states:
Except as otherwise expressly provided in this Act or any other written law, the provisions of this Act shall constitute the law of Kenya in respect of, and shall have universal application to, all cases of intestate or testamentary succession to the estates of deceased persons dying after the commencement of this Act and to the administration of estates of those persons.
[35] In addition, Part V of the Act provides the formula for distribution of the estate of a deceased person in the absence of a valid oral or written will. Therefore, the wishes of a deceased person under intestacy, while admissible and worthy of consideration by the probate court, cannot override the express provisions of statute where there is no consensus by the parties on the Mode of Distribution. In this respect, I am in agreement with the position taken in Re Estate of Mong’are Obanyi [2024] KEHC 4630 (KLR) and Re Estate of Ngaruhiya Kamau (Deceased) [2025] KEHC 4303 (KLR) that in the absence of a consensus by the parties as to the mode of distribution of the deceased’s estate, the court was bound to follow the procedure laid down in Section 35 of the Law of Succession Act.
[36] The position was reiterated in R e Estate of Justus Nguyo Waititu alias Jastus Nguyo Waititu (Deceased) [2019] KEHC 4368 (KLR) as follows:
“Where there is a disagreement, as has turned out to be the case here, then the only available alternative open to this court is to revert to the strict application of section 35(1) (b) of the Act and transfer the entire net intestate estate to the deceased’s widow subject, of course, to a life interest.”
[37] For purposes of the Law of Succession Act, what is available for distribution is the free estate of the deceased. In Section 3 thereof, “free property” is defined as follows:
“free property", in relation to a deceased person, means the property of which that person was legally competent freely to dispose during his lifetime, and in respect of which his interest has not been terminated by his death;”
[38] From the averments of the parties, Parcel Nos. KANYAMWA/KABONYO/KWANDIKU/160 and 166 were given by the deceased to Bonface Nyaguara during the deceased’s lifetime. To that extent, the two pieces were not available for distribution by the lower court. It is trite that a gift inter vivos must be respected at the time of distribution by letting it remain with the beneficiary thus gifted by the deceased in his lifetime, so long as that gift is taken into consideration at the time of distribution for purposes of fairness and equity.
[39] Section 42 of the Law of Succession Act is explicit in this regard. It states:
“Where—
(a) an intestate has, during his lifetime or by will, paid, given or settled any property to or for the benefit of a child, grandchild or house; or
(b) property has been appointed or awarded to any child or grandchild under the provisions of section 26 or section 35 of this Act,
that property shall be taken into account in determining the share of the net intestate estate finally accruing to the child, grandchild or house.”
[40] The Court was addressed at length on the nature of ownership of the two pieces of land as between the deceased and Bonface Nyaguara, with the appellants contending that it was a joint tenancy and therefore the interest of the deceased in the two parcels of land ceased upon his death. It is noteworthy that the two appellants are the widow and son of Bonface Nyaguara and their contention was therefore that upon the demise of the deceased, ownership of the two properties vested in Bonface Nyaguara by dint of the doctrine of jus accrescendi.
[41] In Isabel Chelangat v Samuel Tiro [2012] eKLR, the court held:
“A joint tenancy imparts to the joint owners, with respect to all other persons than themselves, the properties of one single owner. Although as between themselves joint tenants have separate rights, as against everyone else they are in the position of a single owner. Joint tenancy carries with it the right of survivorship and “four unities.” The right of survivorship (jus accrescendi) means that when one joint owner dies, his interest in the land passes on to the surviving joint tenant. A joint tenancy cannot pass under will or intestacy of a joint tenant so long as there is a surviving joint tenant as the right of survivorship takes precedence.”
[42] Similarly, in Re Joseph Kipkemoi Limo [2025] KEHC 1623 (KLR), the court held that property that was jointly owned by the deceased did not form free property of the deceased and therefore did not fall under intestacy. Although the respondents contended that the fact of joint ownership was not proved before the lower court to the requisite standard, it suffices that they conceded to the fact that the land was owned jointly by the deceased and Bonface before his death. Therefore, the two pieces of land, as has been pointed out herein above, did not form part of the free estate of the deceased for purposes of succession. It is also noteworthy that the two pieces of land were not listed in Form P&A.5 as comprising the estate of the deceased.
[43] If the administrators were minded to claim the deceased’s portions thereof on behalf of the estate then the best course was for them to sue before the Environment and Land Court for purposes of determination of the interest of the deceased. It has often been held that the probate court is not well-suited and indeed does not
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