(Being an appeal from the Ruling arising from the Ruling and order of Hon. Mwicigi (SPM) and read by Hon. Ireri (SRM), delivered on 27/4/2022 in Baricho Magistrates Court Succession Cause No. 383 of 2016)
Background
1. The appellants James Gataiyi Munyi, and the respondent Joseph Muriithi Mutinia are both children of the deceased herein Mutinia Gataiye alias Mutinia Gitaiye. They are step-brothers. They are also joint administrators of the estate of the deceased. They have five other siblings and the seven make up the beneficiaries of the estate of the deceased. The deceased had two wives, Wamiru Muthia, his first wife and Janet Micere Mutinia his second wife, both deceased in 2013 and 2015 respectively.
2. The deceased was from the Kikuyu community. With two wives he therefore had two houses. He died on 27/3/1980 before the Law of Succession Act (Cap. 160) Laws of Kenya came into effect on 1/7/1981.
3. The deceased’s estate comprises of only one property being Land Parcel Number Mutithi/Strip/64 measuring approximately 4 Ha.
4. The issue in contention between the appellant and the respondent is only on the mode of distribution of the deceased’s estate. The appellant maintains that the estate should be distributed equally between the two houses whereby each household will get an equal share. The respondent on his part maintains that the property should be distributed as provided for under section 38 of the law of the succession Act whereby each child will get an equal share.
Case before the trial court.
5. James Gataiyi Munyi, the appellant filed a petition for grant of letters of administration dated 4/9/2015. In the affidavit in support of the petition he named the following persons as having survived the deceased James Gataiyi (son), Joseph Muriithi Mutinia (son), Ejidia Micere Mwangi (daughter), Eunice Njoki Wanjohi (daughter), Saverio Muthee Mutinia (daughter) and Jane Wanjiru Muthike (daughter). He left out one person David Munene who was indicated in the chief’s letter dated 20/4/2015 as a son of the deceased but also having died. David was later included through his widow Jane Wanjiku Munene. It appears that the siblings were not interested or were uncooperative in filing the proceedings. James had to take out a citation (which was not necessary provided he had given them notice) for them to give their consents to the issuance of the grant. On his part, Joseph, the respondent herein and two others Saverio Muthee Mutinia and Jane Wanjiru Muthike filed a reply to the citation on23/9/2015 asking the court that the letters of administration intestate should be granted to two administrators, James Gataiyi Munyi amd Joseph Muriithi Mutinia and a further reply to the citation dated 20/2/2016 in which they disclosed that the deceased was married to two wives thereby making two houses as follows:
a. First house of Janet Micer (deceased) had the following issues:
i. Jane Wanjiru Mutinia.
ii. Joseph Muriithi Mutinia
iii. David Munene Mutinia (late).
iv. Saverio Muthee.
b. Second house of Julia Wairimu (deceased) had the following issues:
i. Ejidia Micere Mutinia.
ii. Eunice Njoki Mutinia.
iii. James Gataiye Munyi.
6. A compromise was reached and Joseph Muriithi Mutinia, the respondent herein was brought on board and appointed as a co-administrator of the estate with James Gataiyi Munyi. The grant in both names was issued on 9/4/2018.
7. In the summons for confirmation of grant dated 25/2/2019, only the appellant James Gataiyi Munyi signed. The proposed mode of distribution of the estate was that the estate be divided into two equal shares of 2 Ha each. The first share would go to three beneficiaries namely James Gataiyi, Ejidia Micere Mwangi and Eunice Njoki Wanjohi while the second portion would go to Joseph Muriithi Mutinia, Jane Wanjiru Muthike, Jane Wanjiku Munene and Saverio Muthee Mutinia.
8. The respondent filed an affidavit of protest sworn on 7/3/2019. He swore that the appellant, his co-administrator had not consulted him on the mode of distribution of the estate. He deposed that he together with other members of the family proposed that the estate be shared equally among the seven beneficiaries of the estate with Jane Wanjiku Munene being a trustee for Boniface Murimi, Sharon Micere and Reginah Wanjiru.
9. The parties agreed to have the summons for confirmation of grant and the protest disposed of by way of affidavits filed and submissions.
10. The learned trial magistrate found that the parties were agreed that the only issue for determination was whether the estate should be shared equally between the two houses of the deceased or equally among the seven children.
11. In considering the matter, the learned trial magistrate in his judgment made the following findings:
a. the deceased died intestate on 27/3/1980 as per the death certificate number 02288567. This is also supported by the documents in the petition.
b. the deceased had two wives, Wamiru Muthia, his first wife and Janet Micere Mutinia his second wife, both deceased in 2013 and 2015 respectively.
c. the first household comprises of Jane Wanjiru Mutinia, Joseph Muriithi Mutinia (the protestor), David Munene Mutinia (Deceased) and Saverio Muthee Mutinia while the second household comprises of Ejidia Micere Mutinia, Eunice Njoki Mutinia and James Gataiyi.
d. the deceased’s estate comprises of only one property being Land Parcel number Mutithi/Strip/64 measuring approximately 4 Ha.
e. the applicant and protestor are step-brothers.
12. The learned trial magistrate held that the estate should be distributed as provided for under section 38 of the Law of Succession Act, that is, equally among the seven beneficiaries.
13. Dissatisfied with the decision, the appellant filed the present appeal through the memorandum dated 15/1/2024 based on the following grounds:
a. the trial magistrate erred in law and in distributing the estate in terms of section 38 of the Law of Succession Act yet the deceased had died before the Law of Succession Act came into force.
b. the trial magistrate erred in law in interpreting the provisions of section 38 of the Law of Succession Act thereby depriving the appellant’s mother’s house of a substantial part of the estate.
14. He therefore prays that the distribution of the estate by the trial court be set aside and the estate of the deceased be shared in accordance with Kikuyu customary law.
Submissions
15. The appeal was disposed of by way of written submissions filed by leared counsels for both parties. I have considered the same in the analysis following.
Analysis and Findings
16. Learned counsels for the parties have both cited section 2 of the Law of Succession Act which provides as follows:
“2. Application of Act
1. 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.
2. The estates of persons dying before the commencement of this Act are subject to the written laws and customs applying at the date of death, but nevertheless the administration of their estates shall commence or proceed so far as possible in accordance with this Act.”
17. It is therefore clear that the estate of any person who died before July 1, 1981, is subject to written laws and customs applying at the date of death, but with a rider that the administration of their estates shall commence or proceed, so far as possible, in accordance with the Law of Succession Act. (see the case of Njoroge v Gitau & 3 others [2023] KECA 417 (KLR)).
18. Learned counsel for the appellant submits that the learned trial magistrate was wrong in applying Section 38 of the Laws of Succession Act and the estate should have been distributed in accordance with the Kikuyu customary law. He has cited the case of In the Estate of Mwangi (Deceased) [2018] e KLR where the Court cited with approval the case of Kanyi Muthiora v Maritha Nyokabi Muthiora [1984] KECA 23 (KLR) where it was stated that under Kikuyu customary law of inheritance observance of equality amongst the different households of the deceased is the cardinal principle. The property is shared equally amongst the houses of the deceased regardless of the number of children in each house. In the case of Kanyi Muthiora v Maritha Nyokabi Muthiora [1984] KECA 23 (KLR) Chesoni Ag JA put the issue thus:
“It was immaterial whether the suit land was inherited by Mathiora from his father or purchased by him. Upon his death whatever land he owned had to be inherited in accordance with the Kikuyu customary law unless he had disposed of it by a will before his death which he did not. It is settled Kikuyu customary law that the estate of a deceased intestate polygamous man is inherited according to the houses. Each house gets an equal share and a house is constituted by each wife. The children of each house then share their portion equally.”(emphasis by Italics by this court).
19. That case was decided by the Court of Appeal in 1984 where the deceased had died in 1954.
20. Learned counsel for the respondent on his part maintains that such custom is outdated and should not be followed in the distribution of the estate. He submits that had all the children of the deceased agreed to be governed by Kikuyu customary law in the distribution of the estate then the same would have applied. However, since a majority of them want the estate distributed equally among the beneficiaries the sections 38 and 40 of the Law of Succession Act should apply. He has cited the dictum of Gachuhi, J (as he then was) in the case of Muthama & Others-Vs- Mwaniki HCCC CA at Nairobi 267/80 while analyzing the law of succession Act Cap 160 and the customary law prior to the enactment stated that:
“The deceased died intestate in 1975. At that time he was subjected to customary law on the intestacy applicable to members of the Kikuyu tribe which they belonged… Due to the provisions of the Succession Act the administration of the estate shall commence or proceed so far as possible in accordance with this Act. This section2 (2) actually means that the administration of the deceased estate being overtaken by events and the residue estate being administrated in accordance with Succession Act Cap 160.”
21. Unfortunately learned counsel for the respondent did not file the full authority and I have not been able to get hold of it for this court’s full consideration.
22. The other cited case of In Re Estate of John Musambayi Katumanga – (Deceased) [2014] KEHC 7506 (KLR) was not dealing with distribution of the estate before the Law of Succession Act came into force as is the case therein.
Duty of appellate court on a first appeal
23. 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)”.
24. I am well guided by these principles in the consideration and determination of this appeal.
25. It is the evidence of the appellant that during his lifetime, the deceased had already subdivided his said property between the two households and the family members had settled in their respective portions. This evidence was not disputed by the respondent. It is not contended by the respondent that such distribution of the land did not adequately provide for the beneficiaries. There is no evidence that any of the beneficiaries had raised any issue with the deceased over the subdivision while he was alive.
26. The learned trial magistrate correctly observed that distribution of the estate in a manner that would be discriminatory would not be proper. Indeed, this was the observation of the Court of Appeal in the case of Njoroge v Gitau & 3 others [2023] KECA 417 (KLR) that:
“The learned Judge, cognizant of and based on the principle of equality envisaged in the Constitution of Kenya, 2010 gave orders for the administration of their estates to proceed as far as possible in accordance with the Law of Succession Act. Article 27 of the Constitution prohibits any form of discrimination on the basis of race, sex, marital status, or culture. Under Article 27, the people of Kenya did away with discriminatory practices such as those advanced by the appellant, that married daughters should not be considered in the distribution of the estate of a deceased person because they are married.”
27. It is important to note that the dispute herein is not about sons and daughters where sons usually wanted to inherit their deceased parents’ property to the exclusion of the daughters or to give daughters smaller shares mostly on account of their being married and settled. It is also not about one child as a beneficiary wishing to disinherit others. For me, it is about a deceased’s property that had already been subdivided and beneficiaries settled on their respective properties. Each of the two houses had its share of the property. None of them raised an issue with the deceased during his lifetime complaining that he or she had not or had not been adequately catered for.
28. The deceased died some 35 years before any of the family members other than James Gataiyi Munyi, the appellant decided to file the petition for succession. The appellant had to take out a citation (which was not necessary provided he had given them notice) for them to give their consents to the issuance of the grant. It appears that the siblings were not interested or were uncooperative or did not see the need to file the succession cause. A compromise was reached and Joseph Muriithi Mutinia, the respondent herein, was brought on board and appointed as a co-administrator of the estate. During confirmation of the grant the respondent then came up with his proposal that the land be redistributed afresh. The reason behind it is that his mother’s household had more children, by one, than that of the appellant’s mother’s household.
29. I do not think that such conduct should be countenanced whether under the written law or equity.
30. The learned trial magistrate found that the Kikuyu customary law should not supersede section 38 of the Law of Succession Act because the former was discriminatory of daughters when it comes to inheritance as it was patrilineal. The Court of Appeal considering this issue in the case of Peter Karumbi Keingati & 4 others v Ann Nyokabi Nguthi & 4 others [2015] KECA 785 (KLR) had this to say that:
“But perhaps a clearer indication of the new constitutional dispensation’s inclination, in the event of any conflict between its pro-equality and non-discrimination values and those of customary laws and cultural practices, is provided by Article 2(4), which declares:
“Any law, including customary law, that is inconsistent with this Constitution is void to the extent of the inconsistency, and any act or omission in contravention of this Constitution is invalid.” [Emphasis added].
As we understand it, the provisions of the Constitution on non-discrimination and equality are meant to address, not abstract and theoretical postulates, but very real problems of discrimination, exclusion and marginalization rooted in and perpetuated by the realities of our society, including our cultures and customary laws and practices.”
31. There is no doubt that applying Kikuyu customary law of inheritance as enunciated above can lead to children in one household getting a bigger share of the property than the other because they are less in number. I agree with the learned trial magistrate that this would amount to discrimination on grounds of culture and birth. Culture because the Kikuyu Community Customs dictate that property of a deceased person be distributed among the households without regard to the number of children in each household and birth because they were born of different mothers.
32. However, the respondent failed to address the issue raised by the appellant in his evidence through his witness statement and supported by his witness Nyaga Mbuthia Karanja that the deceased while he was alive, sub-divided his land into two equal portions between his two houses in 1971 and since then the families had been cultivating their respective portions as such.
33. Considering a similar issue in the case of In re Estate of Ripongole Seronei Parutumei (Deceased) (Succession Cause 2 of 2017) [2022] KEHC 9918 (KLR) (13 July 2022) (Judgment)the High Court W. Korir (as he then was) held thus:
“Adopting the patrilineal way of distributing the estate of the deceased as per Pokot customary law is discriminatory in that the custom overlooks the right of women to inherit from the estates of their fathers. This offends Article 27 of the Constitution which provides for the right to equality and freedom from discrimination. Eugene Cotran, however, support the position of the Respondent that the deceased distributed his estate prior to his death. In the case at hand, the deceased had shared out his property during his lifetime. From how the deceased arranged his homestead, it is clear that he wanted each house to have an equal share of his land. There is no reason to depart from his wish. Each house will therefore have an equal share of the land of the deceased. There is no evidence that the deceased left any other property.”
34. Although this decision concerned members of the Pokot community it is relevant because the facts are and issues being considered therein are similar to the present case including the customary law on inheritance.
35. In the present case, the issue is on the equitable distribution of the estate between children of the deceased where this had already been done during the deceased’s lifetime in accordance with Kikuyu customary law where each house received one half share of the estate. None of the beneficiaries seemed to raise any issue with the same. I have not seen any claim by any of the beneficiaries that they will be left out of the distribution of the estate if the mode proposed by the appellant was adopted. None of them, not even the respondent has claimed that they were not adequately catered for. I therefore do not find, as as opposed to the learned trial magistrate’s finding any form of discrimination in the mode of distribution proposed by the appellant, that is, according to what the deceased had bequeathed to each household during his lifetime. Within the households the property should then be distributed equally among the children.
36. Consequently, I find that the decision of the learned trial magistrate to distribute the property equally amongst the beneficiaries without regard to the prior distribution by the deceased is not tenable and the decision has to be and is hereby set aside.
37. The estate of the deceased shall be distributed as per the proposal of the appellant herein where each house will get one half share of the estate and within the houses each beneficiary will get an equal share.
38. This being a family matter it is ordered that each party will bear his or her costs.
Dated, signed and delivered on the Virtual Platform, Teams this 28th day of July 2025.
ANDAYI W. F.
JUDGE
In the presence of:
Naliaka (Ms) for Appellant.
Kamau holding brief for Murigu for the Respondent
Job: Court Assistant.
ANDAYI W. F.
JUDGE
Background
1. The appellants James Gataiyi Munyi, and the respondent Joseph Muriithi Mutinia are both children of the deceased herein Mutinia Gataiye alias Mutinia Gitaiye. They are step-brothers. They are also joint administrators of the estate of the deceased. They have five other siblings and the seven make up the beneficiaries of the estate of the deceased. The deceased had two wives, Wamiru Muthia, his first wife and Janet Micere Mutinia his second wife, both deceased in 2013 and 2015 respectively.
2. The deceased was from the Kikuyu community. With two wives he therefore had two houses. He died on 27/3/1980 before the Law of Succession Act (Cap. 160) Laws of Kenya came into effect on 1/7/1981.
3. The deceased’s estate comprises of only one property being Land Parcel Number Mutithi/Strip/64 measuring approximately 4 Ha.
4. The issue in contention between the appellant and the respondent is only on the mode of distribution of the deceased’s estate. The appellant maintains that the estate should be distributed equally between the two houses whereby each household will get an equal share. The respondent on his part maintains that the property should be distributed as provided for under section 38 of the law of the succession Act whereby each child will get an equal share.
Case before the trial court.
5. James Gataiyi Munyi, the appellant filed a petition for grant of letters of administration dated 4/9/2015. In the affidavit in support of the petition he named the following persons as having survived the deceased James Gataiyi (son), Joseph Muriithi Mutinia (son), Ejidia Micere Mwangi (daughter), Eunice Njoki Wanjohi (daughter), Saverio Muthee Mutinia (daughter) and Jane Wanjiru Muthike (daughter). He left out one person David Munene who was indicated in the chief’s letter dated 20/4/2015 as a son of the deceased but also having died. David was later included through his widow Jane Wanjiku Munene. It appears that the siblings were not interested or were uncooperative in filing the proceedings. James had to take out a citation (which was not necessary provided he had given them notice) for them to give their consents to the issuance of the grant. On his part, Joseph, the respondent herein and two others Saverio Muthee Mutinia and Jane Wanjiru Muthike filed a reply to the citation on23/9/2015 asking the court that the letters of administration intestate should be granted to two administrators, James Gataiyi Munyi amd Joseph Muriithi Mutinia and a further reply to the citation dated 20/2/2016 in which they disclosed that the deceased was married to two wives thereby making two houses as follows:
a. First house of Janet Micer (deceased) had the following issues:
i. Jane Wanjiru Mutinia.
ii. Joseph Muriithi Mutinia
iii. David Munene Mutinia (late).
iv. Saverio Muthee.
b. Second house of Julia Wairimu (deceased) had the following issues:
i. Ejidia Micere Mutinia.
ii. Eunice Njoki Mutinia.
iii. James Gataiye Munyi.
6. A compromise was reached and Joseph Muriithi Mutinia, the respondent herein was brought on board and appointed as a co-administrator of the estate with James Gataiyi Munyi. The grant in both names was issued on 9/4/2018.
7. In the summons for confirmation of grant dated 25/2/2019, only the appellant James Gataiyi Munyi signed. The proposed mode of distribution of the estate was that the estate be divided into two equal shares of 2 Ha each. The first share would go to three beneficiaries namely James Gataiyi, Ejidia Micere Mwangi and Eunice Njoki Wanjohi while the second portion would go to Joseph Muriithi Mutinia, Jane Wanjiru Muthike, Jane Wanjiku Munene and Saverio Muthee Mutinia.
8. The respondent filed an affidavit of protest sworn on 7/3/2019. He swore that the appellant, his co-administrator had not consulted him on the mode of distribution of the estate. He deposed that he together with other members of the family proposed that the estate be shared equally among the seven beneficiaries of the estate with Jane Wanjiku Munene being a trustee for Boniface Murimi, Sharon Micere and Reginah Wanjiru.
9. The parties agreed to have the summons for confirmation of grant and the protest disposed of by way of affidavits filed and submissions.
10. The learned trial magistrate found that the parties were agreed that the only issue for determination was whether the estate should be shared equally between the two houses of the deceased or equally among the seven children.
11. In considering the matter, the learned trial magistrate in his judgment made the following findings:
a. the deceased died intestate on 27/3/1980 as per the death certificate number 02288567. This is also supported by the documents in the petition.
b. the deceased had two wives, Wamiru Muthia, his first wife and Janet Micere Mutinia his second wife, both deceased in 2013 and 2015 respectively.
c. the first household comprises of Jane Wanjiru Mutinia, Joseph Muriithi Mutinia (the protestor), David Munene Mutinia (Deceased) and Saverio Muthee Mutinia while the second household comprises of Ejidia Micere Mutinia, Eunice Njoki Mutinia and James Gataiyi.
d. the deceased’s estate comprises of only one property being Land Parcel number Mutithi/Strip/64 measuring approximately 4 Ha.
e. the applicant and protestor are step-brothers.
12. The learned trial magistrate held that the estate should be distributed as provided for under section 38 of the Law of Succession Act, that is, equally among the seven beneficiaries.
13. Dissatisfied with the decision, the appellant filed the present appeal through the memorandum dated 15/1/2024 based on the following grounds:
a. the trial magistrate erred in law and in distributing the estate in terms of section 38 of the Law of Succession Act yet the deceased had died before the Law of Succession Act came into force.
b. the trial magistrate erred in law in interpreting the provisions of section 38 of the Law of Succession Act thereby depriving the appellant’s mother’s house of a substantial part of the estate.
14. He therefore prays that the distribution of the estate by the trial court be set aside and the estate of the deceased be shared in accordance with Kikuyu customary law.
Submissions
15. The appeal was disposed of by way of written submissions filed by leared counsels for both parties. I have considered the same in the analysis following.
Analysis and Findings
16. Learned counsels for the parties have both cited section 2 of the Law of Succession Act which provides as follows:
“2. Application of Act
1. 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.
2. The estates of persons dying before the commencement of this Act are subject to the written laws and customs applying at the date of death, but nevertheless the administration of their estates shall commence or proceed so far as possible in accordance with this Act.”
17. It is therefore clear that the estate of any person who died before July 1, 1981, is subject to written laws and customs applying at the date of death, but with a rider that the administration of their estates shall commence or proceed, so far as possible, in accordance with the Law of Succession Act. (see the case of Njoroge v Gitau & 3 others [2023] KECA 417 (KLR)).
18. Learned counsel for the appellant submits that the learned trial magistrate was wrong in applying Section 38 of the Laws of Succession Act and the estate should have been distributed in accordance with the Kikuyu customary law. He has cited the case of In the Estate of Mwangi (Deceased) [2018] e KLR where the Court cited with approval the case of Kanyi Muthiora v Maritha Nyokabi Muthiora [1984] KECA 23 (KLR) where it was stated that under Kikuyu customary law of inheritance observance of equality amongst the different households of the deceased is the cardinal principle. The property is shared equally amongst the houses of the deceased regardless of the number of children in each house. In the case of Kanyi Muthiora v Maritha Nyokabi Muthiora [1984] KECA 23 (KLR) Chesoni Ag JA put the issue thus:
“It was immaterial whether the suit land was inherited by Mathiora from his father or purchased by him. Upon his death whatever land he owned had to be inherited in accordance with the Kikuyu customary law unless he had disposed of it by a will before his death which he did not. It is settled Kikuyu customary law that the estate of a deceased intestate polygamous man is inherited according to the houses. Each house gets an equal share and a house is constituted by each wife. The children of each house then share their portion equally.”(emphasis by Italics by this court).
19. That case was decided by the Court of Appeal in 1984 where the deceased had died in 1954.
20. Learned counsel for the respondent on his part maintains that such custom is outdated and should not be followed in the distribution of the estate. He submits that had all the children of the deceased agreed to be governed by Kikuyu customary law in the distribution of the estate then the same would have applied. However, since a majority of them want the estate distributed equally among the beneficiaries the sections 38 and 40 of the Law of Succession Act should apply. He has cited the dictum of Gachuhi, J (as he then was) in the case of Muthama & Others-Vs- Mwaniki HCCC CA at Nairobi 267/80 while analyzing the law of succession Act Cap 160 and the customary law prior to the enactment stated that:
“The deceased died intestate in 1975. At that time he was subjected to customary law on the intestacy applicable to members of the Kikuyu tribe which they belonged… Due to the provisions of the Succession Act the administration of the estate shall commence or proceed so far as possible in accordance with this Act. This section2 (2) actually means that the administration of the deceased estate being overtaken by events and the residue estate being administrated in accordance with Succession Act Cap 160.”
21. Unfortunately learned counsel for the respondent did not file the full authority and I have not been able to get hold of it for this court’s full consideration.
22. The other cited case of In Re Estate of John Musambayi Katumanga – (Deceased) [2014] KEHC 7506 (KLR) was not dealing with distribution of the estate before the Law of Succession Act came into force as is the case therein.
Duty of appellate court on a first appeal
23. 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)”.
24. I am well guided by these principles in the consideration and determination of this appeal.
25. It is the evidence of the appellant that during his lifetime, the deceased had already subdivided his said property between the two households and the family members had settled in their respective portions. This evidence was not disputed by the respondent. It is not contended by the respondent that such distribution of the land did not adequately provide for the beneficiaries. There is no evidence that any of the beneficiaries had raised any issue with the deceased over the subdivision while he was alive.
26. The learned trial magistrate correctly observed that distribution of the estate in a manner that would be discriminatory would not be proper. Indeed, this was the observation of the Court of Appeal in the case of Njoroge v Gitau & 3 others [2023] KECA 417 (KLR) that:
“The learned Judge, cognizant of and based on the principle of equality envisaged in the Constitution of Kenya, 2010 gave orders for the administration of their estates to proceed as far as possible in accordance with the Law of Succession Act. Article 27 of the Constitution prohibits any form of discrimination on the basis of race, sex, marital status, or culture. Under Article 27, the people of Kenya did away with discriminatory practices such as those advanced by the appellant, that married daughters should not be considered in the distribution of the estate of a deceased person because they are married.”
27. It is important to note that the dispute herein is not about sons and daughters where sons usually wanted to inherit their deceased parents’ property to the exclusion of the daughters or to give daughters smaller shares mostly on account of their being married and settled. It is also not about one child as a beneficiary wishing to disinherit others. For me, it is about a deceased’s property that had already been subdivided and beneficiaries settled on their respective properties. Each of the two houses had its share of the property. None of them raised an issue with the deceased during his lifetime complaining that he or she had not or had not been adequately catered for.
28. The deceased died some 35 years before any of the family members other than James Gataiyi Munyi, the appellant decided to file the petition for succession. The appellant had to take out a citation (which was not necessary provided he had given them notice) for them to give their consents to the issuance of the grant. It appears that the siblings were not interested or were uncooperative or did not see the need to file the succession cause. A compromise was reached and Joseph Muriithi Mutinia, the respondent herein, was brought on board and appointed as a co-administrator of the estate. During confirmation of the grant the respondent then came up with his proposal that the land be redistributed afresh. The reason behind it is that his mother’s household had more children, by one, than that of the appellant’s mother’s household.
29. I do not think that such conduct should be countenanced whether under the written law or equity.
30. The learned trial magistrate found that the Kikuyu customary law should not supersede section 38 of the Law of Succession Act because the former was discriminatory of daughters when it comes to inheritance as it was patrilineal. The Court of Appeal considering this issue in the case of Peter Karumbi Keingati & 4 others v Ann Nyokabi Nguthi & 4 others [2015] KECA 785 (KLR) had this to say that:
“But perhaps a clearer indication of the new constitutional dispensation’s inclination, in the event of any conflict between its pro-equality and non-discrimination values and those of customary laws and cultural practices, is provided by Article 2(4), which declares:
“Any law, including customary law, that is inconsistent with this Constitution is void to the extent of the inconsistency, and any act or omission in contravention of this Constitution is invalid.” [Emphasis added].
As we understand it, the provisions of the Constitution on non-discrimination and equality are meant to address, not abstract and theoretical postulates, but very real problems of discrimination, exclusion and marginalization rooted in and perpetuated by the realities of our society, including our cultures and customary laws and practices.”
31. There is no doubt that applying Kikuyu customary law of inheritance as enunciated above can lead to children in one household getting a bigger share of the property than the other because they are less in number. I agree with the learned trial magistrate that this would amount to discrimination on grounds of culture and birth. Culture because the Kikuyu Community Customs dictate that property of a deceased person be distributed among the households without regard to the number of children in each household and birth because they were born of different mothers.
32. However, the respondent failed to address the issue raised by the appellant in his evidence through his witness statement and supported by his witness Nyaga Mbuthia Karanja that the deceased while he was alive, sub-divided his land into two equal portions between his two houses in 1971 and since then the families had been cultivating their respective portions as such.
33. Considering a similar issue in the case of In re Estate of Ripongole Seronei Parutumei (Deceased) (Succession Cause 2 of 2017) [2022] KEHC 9918 (KLR) (13 July 2022) (Judgment)the High Court W. Korir (as he then was) held thus:
“Adopting the patrilineal way of distributing the estate of the deceased as per Pokot customary law is discriminatory in that the custom overlooks the right of women to inherit from the estates of their fathers. This offends Article 27 of the Constitution which provides for the right to equality and freedom from discrimination. Eugene Cotran, however, support the position of the Respondent that the deceased distributed his estate prior to his death. In the case at hand, the deceased had shared out his property during his lifetime. From how the deceased arranged his homestead, it is clear that he wanted each house to have an equal share of his land. There is no reason to depart from his wish. Each house will therefore have an equal share of the land of the deceased. There is no evidence that the deceased left any other property.”
34. Although this decision concerned members of the Pokot community it is relevant because the facts are and issues being considered therein are similar to the present case including the customary law on inheritance.
35. In the present case, the issue is on the equitable distribution of the estate between children of the deceased where this had already been done during the deceased’s lifetime in accordance with Kikuyu customary law where each house received one half share of the estate. None of the beneficiaries seemed to raise any issue with the same. I have not seen any claim by any of the beneficiaries that they will be left out of the distribution of the estate if the mode proposed by the appellant was adopted. None of them, not even the respondent has claimed that they were not adequately catered for. I therefore do not find, as as opposed to the learned trial magistrate’s finding any form of discrimination in the mode of distribution proposed by the appellant, that is, according to what the deceased had bequeathed to each household during his lifetime. Within the households the property should then be distributed equally among the children.
36. Consequently, I find that the decision of the learned trial magistrate to distribute the property equally amongst the beneficiaries without regard to the prior distribution by the deceased is not tenable and the decision has to be and is hereby set aside.
37. The estate of the deceased shall be distributed as per the proposal of the appellant herein where each house will get one half share of the estate and within the houses each beneficiary will get an equal share.
38. This being a family matter it is ordered that each party will bear his or her costs.
Dated, signed and delivered on the Virtual Platform, Teams this 28th day of July 2025.
ANDAYI W. F.
JUDGE
In the presence of:
Naliaka (Ms) for Appellant.
Kamau holding brief for Murigu for the Respondent
Job: Court Assistant.
ANDAYI W. F.
JUDGE