'(Being an appeal against the judgment and decree of G. K. Odhiambo, Resident Magistrate, at Gichugu Law Courts in Magistrates Court Succession Cause No. 57 of 2019 delivered on 20th November 2020).
1. This appeal filed through a memorandum dated 18/12/2020 is based on four grounds as follows:
a. The learned trial magistrate erred in law and in fact in finding that land parcel No. Baragwe/Kariru/1085 should be shared equally among the beneficiaries disregarding the deceased’s wishes who had distributed the land during his lifetime.
b. The learned trial magistrate erred in law and in fact in disregarding the appellant’s evidence that the deceased had subdivided the land into three portions and that he intended to transfer the 0.93 Ha to each of his two sons and 0.93 Ha to himself and his daughters.
c. The learned trial magistrate erred in law and in fact in failing to fairly analyse the evidence adduced in court.
d. The learned trial magistrate erred in law and in fact in delivering the judgment in favour of the respondents against the weight of the evidence.
2. The appeal was disposed of by way of written submissions filed by learned counsels for both parties.
3. 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)”.
4. I am well guided by these principles in the consideration and determination of this appeal.
5. The background to the appeal is that James Muiru Ngai, the appellant herein, whom I will refer to as the petitioner in most instances for purposes of clarity and Luka Mukono are sons while Mary Wanjiku Ngai, Margaret Njeri Ngai and Felista Wanjira Kaburachi, the respondents and who I will also refer to in most instances as the protestors as well as Virginia Muthoni also deceased and Ann Wambui also deceased are daughters of Ngai Gachoki the deceased in this case, who died on 3rd April 2015 intestate and whose estate is under consideration for administration.
6. The petitioner was granted Letters of Administration Intestate to the estate of the deceased on 11th November 2019 by the Magistrates Court at Gichugu.
7. The petitioner took out summons for confirmation of grant dated 11th August 2020 together with a supporting affidavit sworn on even date. In the affidavit he named the deceased’s survivors as James Muiru Ngai (son) Felista Wanjira Kaburachi, Mary Wanjiku Ngai, Margaret Njeri Ngai (daughters) Nancy Waruguru Muriithi, Catherine Wambui Mithamo, Poline Wanjiku Gikunju (granddaughters), Benson Nyamu Mwaniki, Symon Komba Wambui (grandsons), Priscilla Wandia Wachira (granddaughter), Stephen Kinyua Wambui (Grandson), Priscilla Wandia Mwendia (granddaughter) and Wachira Luka Mukono (Grandson). He also filed alongside the summons for confirmation of grant a consent to confirmation of grant with all the above survivors shown to have appended their respective signatures against their names except for Mary Wanjiku Ngai whose space for signature remained blank.
8. In the supporting affidavit, the petitioner proposed the distribution of the deceased’s estate as follows:
a. James Muiru Ngai ………………………………0.93 Ha.
b. Felista Wanjira Kabarachi……………….0.186 Ha
c. Mary Wanjiku Ngai…………………………0.186 Ha
d. Margaret Njeri Ngai………………………..0.186 Ha
e. Priscilla Wandia Mwendia
f. Wachira Luka Mukono 0.93 Ha
g. Nancy Waruguru Muriithi
h. Catherine Wambui Mithamo
i. Poline Wanjiku Gikunju 0.186 Ha
j. Benson Nyamu Mwaniki
k. Symon Chomba
l. Priscilla Wandia Wachira 0.186 Ha
m. Stephen Kinyua Wambui
9. Felista Wanjira Kaburachi and Mary Wanjiku Ngai filed affidavits of protest to the summons for confirmation of grant.
10. In her affidavit sworn on 24th September 2020, Felista denied that she had appended her signature to the consent filed alongside the petition by the petitioner. She claims she does not know how to write. She alleges that her purported signature on the consent is a forgery.
11. Mary on her part deposes that although she signed the consent, she did so in error as she is opposed to the mode of distribution proposed by the petitioner.
12. They also deposed that:
a. Their brother Luka Mukono is deceased and left behind two children namely Priscilla Wandia Mukono and Wachira Luka Mukono.
b. Their sister Anne Wambui, who was married, is deceased and left behind three children namely Symon Chomba Wambui, Priscilla Wandia Wachira and Stephen Kinyua Wambui who is a minor.
c. Their sister Virginia Muthoni, who was also married, is deceased and left behind four children namely Nancy Waruguru Muriithi, Catherine Wambui Mithamo, Poline Wanjiku Gikunju and Benson Nyamu Mwaniki.
d. Their sister Margaret Njeri Ngai is married.
13. They are both opposed to the mode of distribution of their late father’s estate as proposed by the petitioner and propose that each of the seven of the deceased’s children gets an equal share of the estate. They allege that the petitioner has in his mode of distribution given himself a bigger share of the land which they find selfish and he has also favoured their other deceased brother Luka Mukono.
14. They therefore feel that the mode of distribution proposed by the petitioner is discriminatory. Each of them claims to be entitled to 0.528 acres.
15. The petitioner filed a replying affidavit sworn on 9th September 2020 to the affidavits of protest. He deposed that he was opposed to the mode of distribution of the estate as proposed by the protestors and maintains the distribution as he had proposed in the affidavit in support of the summons for confirmation of grant. He deposes that Felista was always aware of the succession cause but declined to sign the consent form.
16. The petitioner deposes that during his lifetime, the deceased had already shared his land into three portions and each of the two sons was to get 0.93 Ha and the remaining share of 0.93 Ha was for the deceased and his daughters.
17. The summons for confirmation of grant and the protests were heard both on the affidavits and viva voce evidence.
18. The matter came up for hearing 4th November 2020. The protestors were the first to testify followed by the petitioner and then other two witnesses Simon Njogu and Mwaniki Gachanga Francis.
19. PW 1, Mary Wanjiku Ngai gave evidence in line with her affidavit. She testified that their father and mother were deceased. That their father, the deceased, had left behind seven children, two sons and 5 daughters. She reiterated that the petitioner had not consulted them on the mode of distribution of their father’s estate and he had given himself a larger portion of land. According to her, the land should be distributed equally among the children as per her protest.
20. Mary said that she lived on the land with the petitioner and that the other sisters of theirs were married.
21. In cross-examination by the petitioner in person, Mary said that she had lived on the land since 1978 and that the deceased had not distributed the land at the time of his death. She insisted that if he had done so, title deeds would have been issued.
22. However, on further cross-examination, she said that the land measures some 3 acres and a few points and that their late father had said that since the land was small, he distributed the land 1½ acres jointly to the sons and 1½ acres jointly to the daughters. She also said that a surveyor was called by their late father and the land was to be subdivided 0.53 acres to go to the sons and 0.63 acres to the daughters (I suppose the trial court could have meant to write Ha here instead of acres). She said further that the petitioner was called to the land and he stopped the process and he was arrested over the issue of the land. The surveyor came a second time and police were around and the land was sub-divided. She said that she was the one who was distributing the land on the instructions of their father who was alive at the time and the petitioner did not like the mode of distribution. She said she called all the children of the deceased for the exercise.
23. Mary said further that their father did not distribute the land but showed them where to settle and that is how they reside on it. Otherwise if the process of distribution was finalized, each one would have been issued with a title deed.
24. Mary therefore insists that the land should now be shared equally.
25. Margaret Kinyua Mbaka, the 2nd protestor testified as PW 2. Her evidence was brief, that the land is 3 acres and a few points and should be shared equally, whatever portion each gates, even if it is ½ acre each.
26. In cross-examination, Margaret said that she resides in Mbeere and she used to visit their father and the petitioner. She said the petitioner was showed where to live by their father.
27. Felista Wanjira, the 3rd protestor testified as PW 3. She said she was the first borne in the family. She also said that the land should be distributed equally among the deceased’s children. She also said that some of them were opposed to how their late father had distributed the land.
28. The petitioner, James Muiru Ngai, gave evidence as DW 1. He reiterated that the deceased had seven children as named above. Luka Mukono, Anne Wambui and Muthoni Ngai are deceased.
29. The petitioner said that he had distributed the land according to how his father had distributed it, that is 0.93 Ha to the petitioner, 0.93 Ha to Luka Mukono and 0.93 Ha to the daughters jointly, meaning that each of the daughters would get 0.186 Ha. He said that Felista had confirmed that indeed he had his own portion of land. This means that Ngai Gachoki (whom I believe was meant to refer to Luka Mukono) also has his home. He said that indeed, one of the protestors had confirmed that the land had been distributed and she visits him at his home and there is also their father’s home.
30. The petitioner said that Mary Wanjiku was the one who was the cause of all the problems as she had written a letter to court that she wanted ½ an acre. But that she had not challenged their father when he gave the petitioner a bigger portion of the land. The petitioner said that he did not know where to get the ½ acre demanded by Mary as he had distributed 0.93 Ha of the land to Luka Mukono’s children.
31. The petitioner further said that Mary Wanjiku came back home after she had sold her land with her husband and Felista Wanjiru as well.
32. In cross-examination, the petitioner said that the deceased’s land No. Baragwe/Kariru/1085 measures about 2.8 Ha. He said that the land was surveyed two times, in 1994 and 2012 and their parents were alive at the time. However, in one of the surveys, the land had been subdivided into two portions while in the other, it was sub-divided into three portions. A surveyor called Kagemi, was called by their father and he came around and surveyed the land. The land was then sub-divided into three portions and he was given one of the portions. However, their father was not aware of what was happening. He said that their father did not issue him with a title deeds.
33. He said the area chief was present in 1994 and in 2012 when he was being arrested and he left the chief on the ground. He said the chief knew the whole history of their father’s land.
34. The petitioner said that he informed Mary when he was filing the petition for letters of administration.
35. He conceded that all the children of the deceased are equal, including those married. However, he was opposed to the land being distributed equally amongst them.
36. The petitioner said that he complained to the DC after Wanjiku had sub-divided the land and a restriction was registered on it. He said that he filed two cases in court at Kerugoya blocking Mary and their father from distributing the land. He said that he was blocking the sub-division that was being done while he was in custody where their father had sub-divided the land into three portions.
37. DW 2, Simon Njogu testified that the deceased was his maternal uncle and he had subdivided his land into three portions before his death a long time ago. He gave a portion to the petitioner, and to Luka Mukono since deceased. He also said that only Wanjiku lives at home and the other daughters were married.
38. In cross-examination, DW 2 said that the deceased called him to his home when he was sub-diving the land. He did not know for what reason the land was being sub-divided but he saw the deceased sub-dividing the land into three portions. He said that he was not aware of the sub-division that was done in 2012, that it was into two portions and that the petitioner had been arrested for uprooting the beacons. He said that he did not know that the petitioner was arrested by the police. He also said that he was not aware of the suit filed by the petitioner against his late father and Mary.
39. DW 2 also said that all the children of the deceased were equal but according to him, the petitioner should get a larger portion as his father had distributed the land. He denied being couched by the petitioner on what to say in court.
40. DW 3, Mwaniki Gathanga Francis testified that he was aware that the deceased had sub-divided his land into three portions. One was given to the petitioner, another to Luka Mukono and the last one was for the deceased.
41. In cross-examination, DW 3 said he is a neighbor of the deceased. He said the sub-division was done by a surveyor. He said the petitioner and Luka lived on either side of their late father’s portion of land. He said that the deceased did not have the land transferred to any one and neither did he write a will.
42. DW 3 further said that the land had been sub-divided twice. He was not around during the second sub-division but he heard of it. This touched the petitioner’s and Luka’s portions. He said that the owner of the land would know why he sub-divided it into two portions. He said that he was aware that the petitioner has had disputes with the other family members over the land. He was reported to the chief by the deceased. The petitioner on his part reported his father to the D.O. for sub-dividing his land.
43. In further cross-examination by Margaret DW 3 said that everyone was shown where to build but no title deed was issued. He told Margaret that she was aware that the land had been distributed.
44. Upon taking the evidence by the parties, the court delivered a judgment on 20th November 2020 wherein it ordered that the deceased’s estate shall be sub-divided in equal shares to his seven children, and those who were since deceased, their children would get their respective shares. That decision prompted the present appeal by the petitioner.
45. The appeal was disposed of on written submissions of the appellant and the respondents filed by their respective learned counsels.
46. The appellant proposed one issue for determination, whether the trial court erred in distributing the estate equally among the beneficiaries while the deceased had already distributed the land to the beneficiaries during his lifetime.
47. The appellant submitted that the deceased had already settled the beneficiaries during his lifetime and the trial court erred by deciding that the land should be distributed equally among the beneficiaries as that was contrary to the deceased’s wishes. The appellant relied on the case of Peter M. Murungi & another v Enid Gatune Mwongera & another [2016] KEHC 3387 (KLR) where the court held, inter alia, that once the deceased had settled his family in his life time, the same cannot be subject to disruption after death.
48. The respondents on their part have set out four issues for determination which are as per the grounds of appeal.
49. The respondents submit that the crucial issue to determine is whether or not the deceased had clearly articulated his wishes during his lifetime. They submit that the trial court properly interpreted and applied the provisions of section 38 of the Law of Succession Act in determining the distribution of the deceased’s estate.
50. Before delving into analyzing the evidence, I have noted an issue that ought to be addressed before the court decides on how to proceed with the judgment.
51. I have noted that during the hearing of the summons for confirmation of grant and the protests, the other beneficiaries of the estate other than the petitioner and the protestors and Margaret were not given an opportunity to present their evidence on the confirmation and therefore the protest. This was against the provisions of Rule 41 of the Probate and Administration Rules made under the Law of Succession Act. Learned counsels for the parties have not addressed that issue in their submissions.
52. Rule 41(1) of the Probate and Administration Rules provides as follows:
“At the hearing of the application for confirmation the court shall first read out in the language or respective languages in which they appear the application, the grant, the affidavits and any written protests which have been filed and shall then hear the applicant and each protester and any other person interested, whether such persons appear personally or by advocate or by a representative.”
53. Considering this rule in the case of In re estate of Robert Mungai Gichinji (Deceased) [2016] KEHC 2377 (KLR) the High Court, W. Musyoka, J. stated as follows:
“Then there is Rule 41 of the Probate and Administration Rules. It deals with the actual hearing of the application for confirmation for grant. The language of Rule 41(1) suggests that the grant, the application, the supporting affidavits and the protest affidavits ought to be read to the administrator applicants, any protestors and ‘any other person interested.’ This would mean that all those interested in the estate ought to be notified of the hearing in order that they may be present when the grant is being confirmed, so that they can raise any issues of concern to them.
The record of 19th May 1995 indicates that apart from counsel for the administrators, there was no attendance by any other person, including the applicants herein. There is nothing on record to indicate that they had been notified of the hearing. They ought to have been so notified in compliance with Rule 41(1) of the Probate and Administration Rules.”
54. In the present case, the persons who were participating in the confirmation of the grant and the protest were the petitioner, the protestors and yet the summons for confirmation of grant indicated that there were three other beneficiaries to the estate who would then be interested in the administration of the estate as provided for under the rule. There is no indication that the court directed that they participate in the hearing as provided for under Rule 41(1) of the Probate and Administration Rules. I am persuaded to follow the decision above and find that the trial court erred in not involving the other beneficiaries in the proceedings for confirmation of the grant. It is indicated that three of the beneficiaries are since deceased. However, their children are there and they ought to have been given an opportunity of participating in the confirmation and protest hearings.
55. The importance of their attendance and participation is underscored by the fact that, the children of Luka Mukono (deceased) would particularly be affected by the decision made by the learned trial magistrate because it was leading to fresh distribution of the estate of the deceased and in the manner suggested, they were obviously going to lose out a portion of their land in which they were in occupation.
56. The second effect would be on those who were not protesting the proposed distribution of the estate. Could they have renounced their right to inherit the property so that after all, the distribution of the estate would only affect the petitioner, the three protestors Mary, Margaret and Felista and the children of Luka Mukono? If that turned out to be the case, it would mean that the mode of distribution of the estate and the share of each beneficially may turn out to be different from that proposed by the learned trial magistrate because it would mean distribution amongst only five and not seven beneficiaries if at all what was suggested by the trial court was to be retained.
57. As stated above there is the consent to the mode of distribution which was signed by all the beneficiaries apart from Mary Wanjiku Ngai. All the persons who signed the consent ought to have been given an opportunity of stating whether they were agreeable to the mode of distribution as proposed by the petitioner and if not, why a change of mind.
58. Yet again, in hearing the protest which was within the confirmation proceedings, the court began with taking the evidence of the protestors contrary to the express provisions of Rule 41(1) of the Probate and Administration Rules above which provides that the court “… shall then hear the applicant and each protester and any other person interested, …” an indication that the petitioner ought to have been the first one to be heard since in any case the application for confirmation was his.
59. Even though the procedure adopted by the trial court to start the hearing of the summons for confirmation of the grant with the protestors was in error, I find that no prejudice was occasioned to any of the parties who participated.
60. All the same, it is important that all the parties who were required to be heard on the confirmation of the grant and protest should be heard.
61. At this point, it is difficult to know whether the parties and witnesses who testified are still present and well to testify or participate in the matter again. In the circumstances, in order to issue comprehensive directions on how the matter will be proceeded with, I will ask all the parties to attend this court for confirmation of this issue.
62. Therefore, from the foregoing consideration of the proceedings before the trial court, I find that this court needs to establish the status of all the parties interested in the administration of the estate before issuing final orders on the case.
63. Consequently, it is directed that the Deputy Registrar of this court at Kerugoya shall issue summonses to each of the parties, the petitioner, protestors and all the other beneficiaries to attend this court virtually on 17th December 2025 for further directions on how the case will proceed.
64. Orders accordingly.
Dated, signed and delivered on the Virtual Platform, Teams this 10th day of November 2025.
ANDAYI W. F.
JUDGE
In the presence of:
Nyakeriga for the Appellant.
Otieno h/b for Makworo for the Respondents.
Ummu h/b for Job: Court Assistant.
'
1. This appeal filed through a memorandum dated 18/12/2020 is based on four grounds as follows:
a. The learned trial magistrate erred in law and in fact in finding that land parcel No. Baragwe/Kariru/1085 should be shared equally among the beneficiaries disregarding the deceased’s wishes who had distributed the land during his lifetime.
b. The learned trial magistrate erred in law and in fact in disregarding the appellant’s evidence that the deceased had subdivided the land into three portions and that he intended to transfer the 0.93 Ha to each of his two sons and 0.93 Ha to himself and his daughters.
c. The learned trial magistrate erred in law and in fact in failing to fairly analyse the evidence adduced in court.
d. The learned trial magistrate erred in law and in fact in delivering the judgment in favour of the respondents against the weight of the evidence.
2. The appeal was disposed of by way of written submissions filed by learned counsels for both parties.
3. 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)”.
4. I am well guided by these principles in the consideration and determination of this appeal.
5. The background to the appeal is that James Muiru Ngai, the appellant herein, whom I will refer to as the petitioner in most instances for purposes of clarity and Luka Mukono are sons while Mary Wanjiku Ngai, Margaret Njeri Ngai and Felista Wanjira Kaburachi, the respondents and who I will also refer to in most instances as the protestors as well as Virginia Muthoni also deceased and Ann Wambui also deceased are daughters of Ngai Gachoki the deceased in this case, who died on 3rd April 2015 intestate and whose estate is under consideration for administration.
6. The petitioner was granted Letters of Administration Intestate to the estate of the deceased on 11th November 2019 by the Magistrates Court at Gichugu.
7. The petitioner took out summons for confirmation of grant dated 11th August 2020 together with a supporting affidavit sworn on even date. In the affidavit he named the deceased’s survivors as James Muiru Ngai (son) Felista Wanjira Kaburachi, Mary Wanjiku Ngai, Margaret Njeri Ngai (daughters) Nancy Waruguru Muriithi, Catherine Wambui Mithamo, Poline Wanjiku Gikunju (granddaughters), Benson Nyamu Mwaniki, Symon Komba Wambui (grandsons), Priscilla Wandia Wachira (granddaughter), Stephen Kinyua Wambui (Grandson), Priscilla Wandia Mwendia (granddaughter) and Wachira Luka Mukono (Grandson). He also filed alongside the summons for confirmation of grant a consent to confirmation of grant with all the above survivors shown to have appended their respective signatures against their names except for Mary Wanjiku Ngai whose space for signature remained blank.
8. In the supporting affidavit, the petitioner proposed the distribution of the deceased’s estate as follows:
a. James Muiru Ngai ………………………………0.93 Ha.
b. Felista Wanjira Kabarachi……………….0.186 Ha
c. Mary Wanjiku Ngai…………………………0.186 Ha
d. Margaret Njeri Ngai………………………..0.186 Ha
e. Priscilla Wandia Mwendia
f. Wachira Luka Mukono 0.93 Ha
g. Nancy Waruguru Muriithi
h. Catherine Wambui Mithamo
i. Poline Wanjiku Gikunju 0.186 Ha
j. Benson Nyamu Mwaniki
k. Symon Chomba
l. Priscilla Wandia Wachira 0.186 Ha
m. Stephen Kinyua Wambui
9. Felista Wanjira Kaburachi and Mary Wanjiku Ngai filed affidavits of protest to the summons for confirmation of grant.
10. In her affidavit sworn on 24th September 2020, Felista denied that she had appended her signature to the consent filed alongside the petition by the petitioner. She claims she does not know how to write. She alleges that her purported signature on the consent is a forgery.
11. Mary on her part deposes that although she signed the consent, she did so in error as she is opposed to the mode of distribution proposed by the petitioner.
12. They also deposed that:
a. Their brother Luka Mukono is deceased and left behind two children namely Priscilla Wandia Mukono and Wachira Luka Mukono.
b. Their sister Anne Wambui, who was married, is deceased and left behind three children namely Symon Chomba Wambui, Priscilla Wandia Wachira and Stephen Kinyua Wambui who is a minor.
c. Their sister Virginia Muthoni, who was also married, is deceased and left behind four children namely Nancy Waruguru Muriithi, Catherine Wambui Mithamo, Poline Wanjiku Gikunju and Benson Nyamu Mwaniki.
d. Their sister Margaret Njeri Ngai is married.
13. They are both opposed to the mode of distribution of their late father’s estate as proposed by the petitioner and propose that each of the seven of the deceased’s children gets an equal share of the estate. They allege that the petitioner has in his mode of distribution given himself a bigger share of the land which they find selfish and he has also favoured their other deceased brother Luka Mukono.
14. They therefore feel that the mode of distribution proposed by the petitioner is discriminatory. Each of them claims to be entitled to 0.528 acres.
15. The petitioner filed a replying affidavit sworn on 9th September 2020 to the affidavits of protest. He deposed that he was opposed to the mode of distribution of the estate as proposed by the protestors and maintains the distribution as he had proposed in the affidavit in support of the summons for confirmation of grant. He deposes that Felista was always aware of the succession cause but declined to sign the consent form.
16. The petitioner deposes that during his lifetime, the deceased had already shared his land into three portions and each of the two sons was to get 0.93 Ha and the remaining share of 0.93 Ha was for the deceased and his daughters.
17. The summons for confirmation of grant and the protests were heard both on the affidavits and viva voce evidence.
18. The matter came up for hearing 4th November 2020. The protestors were the first to testify followed by the petitioner and then other two witnesses Simon Njogu and Mwaniki Gachanga Francis.
19. PW 1, Mary Wanjiku Ngai gave evidence in line with her affidavit. She testified that their father and mother were deceased. That their father, the deceased, had left behind seven children, two sons and 5 daughters. She reiterated that the petitioner had not consulted them on the mode of distribution of their father’s estate and he had given himself a larger portion of land. According to her, the land should be distributed equally among the children as per her protest.
20. Mary said that she lived on the land with the petitioner and that the other sisters of theirs were married.
21. In cross-examination by the petitioner in person, Mary said that she had lived on the land since 1978 and that the deceased had not distributed the land at the time of his death. She insisted that if he had done so, title deeds would have been issued.
22. However, on further cross-examination, she said that the land measures some 3 acres and a few points and that their late father had said that since the land was small, he distributed the land 1½ acres jointly to the sons and 1½ acres jointly to the daughters. She also said that a surveyor was called by their late father and the land was to be subdivided 0.53 acres to go to the sons and 0.63 acres to the daughters (I suppose the trial court could have meant to write Ha here instead of acres). She said further that the petitioner was called to the land and he stopped the process and he was arrested over the issue of the land. The surveyor came a second time and police were around and the land was sub-divided. She said that she was the one who was distributing the land on the instructions of their father who was alive at the time and the petitioner did not like the mode of distribution. She said she called all the children of the deceased for the exercise.
23. Mary said further that their father did not distribute the land but showed them where to settle and that is how they reside on it. Otherwise if the process of distribution was finalized, each one would have been issued with a title deed.
24. Mary therefore insists that the land should now be shared equally.
25. Margaret Kinyua Mbaka, the 2nd protestor testified as PW 2. Her evidence was brief, that the land is 3 acres and a few points and should be shared equally, whatever portion each gates, even if it is ½ acre each.
26. In cross-examination, Margaret said that she resides in Mbeere and she used to visit their father and the petitioner. She said the petitioner was showed where to live by their father.
27. Felista Wanjira, the 3rd protestor testified as PW 3. She said she was the first borne in the family. She also said that the land should be distributed equally among the deceased’s children. She also said that some of them were opposed to how their late father had distributed the land.
28. The petitioner, James Muiru Ngai, gave evidence as DW 1. He reiterated that the deceased had seven children as named above. Luka Mukono, Anne Wambui and Muthoni Ngai are deceased.
29. The petitioner said that he had distributed the land according to how his father had distributed it, that is 0.93 Ha to the petitioner, 0.93 Ha to Luka Mukono and 0.93 Ha to the daughters jointly, meaning that each of the daughters would get 0.186 Ha. He said that Felista had confirmed that indeed he had his own portion of land. This means that Ngai Gachoki (whom I believe was meant to refer to Luka Mukono) also has his home. He said that indeed, one of the protestors had confirmed that the land had been distributed and she visits him at his home and there is also their father’s home.
30. The petitioner said that Mary Wanjiku was the one who was the cause of all the problems as she had written a letter to court that she wanted ½ an acre. But that she had not challenged their father when he gave the petitioner a bigger portion of the land. The petitioner said that he did not know where to get the ½ acre demanded by Mary as he had distributed 0.93 Ha of the land to Luka Mukono’s children.
31. The petitioner further said that Mary Wanjiku came back home after she had sold her land with her husband and Felista Wanjiru as well.
32. In cross-examination, the petitioner said that the deceased’s land No. Baragwe/Kariru/1085 measures about 2.8 Ha. He said that the land was surveyed two times, in 1994 and 2012 and their parents were alive at the time. However, in one of the surveys, the land had been subdivided into two portions while in the other, it was sub-divided into three portions. A surveyor called Kagemi, was called by their father and he came around and surveyed the land. The land was then sub-divided into three portions and he was given one of the portions. However, their father was not aware of what was happening. He said that their father did not issue him with a title deeds.
33. He said the area chief was present in 1994 and in 2012 when he was being arrested and he left the chief on the ground. He said the chief knew the whole history of their father’s land.
34. The petitioner said that he informed Mary when he was filing the petition for letters of administration.
35. He conceded that all the children of the deceased are equal, including those married. However, he was opposed to the land being distributed equally amongst them.
36. The petitioner said that he complained to the DC after Wanjiku had sub-divided the land and a restriction was registered on it. He said that he filed two cases in court at Kerugoya blocking Mary and their father from distributing the land. He said that he was blocking the sub-division that was being done while he was in custody where their father had sub-divided the land into three portions.
37. DW 2, Simon Njogu testified that the deceased was his maternal uncle and he had subdivided his land into three portions before his death a long time ago. He gave a portion to the petitioner, and to Luka Mukono since deceased. He also said that only Wanjiku lives at home and the other daughters were married.
38. In cross-examination, DW 2 said that the deceased called him to his home when he was sub-diving the land. He did not know for what reason the land was being sub-divided but he saw the deceased sub-dividing the land into three portions. He said that he was not aware of the sub-division that was done in 2012, that it was into two portions and that the petitioner had been arrested for uprooting the beacons. He said that he did not know that the petitioner was arrested by the police. He also said that he was not aware of the suit filed by the petitioner against his late father and Mary.
39. DW 2 also said that all the children of the deceased were equal but according to him, the petitioner should get a larger portion as his father had distributed the land. He denied being couched by the petitioner on what to say in court.
40. DW 3, Mwaniki Gathanga Francis testified that he was aware that the deceased had sub-divided his land into three portions. One was given to the petitioner, another to Luka Mukono and the last one was for the deceased.
41. In cross-examination, DW 3 said he is a neighbor of the deceased. He said the sub-division was done by a surveyor. He said the petitioner and Luka lived on either side of their late father’s portion of land. He said that the deceased did not have the land transferred to any one and neither did he write a will.
42. DW 3 further said that the land had been sub-divided twice. He was not around during the second sub-division but he heard of it. This touched the petitioner’s and Luka’s portions. He said that the owner of the land would know why he sub-divided it into two portions. He said that he was aware that the petitioner has had disputes with the other family members over the land. He was reported to the chief by the deceased. The petitioner on his part reported his father to the D.O. for sub-dividing his land.
43. In further cross-examination by Margaret DW 3 said that everyone was shown where to build but no title deed was issued. He told Margaret that she was aware that the land had been distributed.
44. Upon taking the evidence by the parties, the court delivered a judgment on 20th November 2020 wherein it ordered that the deceased’s estate shall be sub-divided in equal shares to his seven children, and those who were since deceased, their children would get their respective shares. That decision prompted the present appeal by the petitioner.
45. The appeal was disposed of on written submissions of the appellant and the respondents filed by their respective learned counsels.
46. The appellant proposed one issue for determination, whether the trial court erred in distributing the estate equally among the beneficiaries while the deceased had already distributed the land to the beneficiaries during his lifetime.
47. The appellant submitted that the deceased had already settled the beneficiaries during his lifetime and the trial court erred by deciding that the land should be distributed equally among the beneficiaries as that was contrary to the deceased’s wishes. The appellant relied on the case of Peter M. Murungi & another v Enid Gatune Mwongera & another [2016] KEHC 3387 (KLR) where the court held, inter alia, that once the deceased had settled his family in his life time, the same cannot be subject to disruption after death.
48. The respondents on their part have set out four issues for determination which are as per the grounds of appeal.
49. The respondents submit that the crucial issue to determine is whether or not the deceased had clearly articulated his wishes during his lifetime. They submit that the trial court properly interpreted and applied the provisions of section 38 of the Law of Succession Act in determining the distribution of the deceased’s estate.
50. Before delving into analyzing the evidence, I have noted an issue that ought to be addressed before the court decides on how to proceed with the judgment.
51. I have noted that during the hearing of the summons for confirmation of grant and the protests, the other beneficiaries of the estate other than the petitioner and the protestors and Margaret were not given an opportunity to present their evidence on the confirmation and therefore the protest. This was against the provisions of Rule 41 of the Probate and Administration Rules made under the Law of Succession Act. Learned counsels for the parties have not addressed that issue in their submissions.
52. Rule 41(1) of the Probate and Administration Rules provides as follows:
“At the hearing of the application for confirmation the court shall first read out in the language or respective languages in which they appear the application, the grant, the affidavits and any written protests which have been filed and shall then hear the applicant and each protester and any other person interested, whether such persons appear personally or by advocate or by a representative.”
53. Considering this rule in the case of In re estate of Robert Mungai Gichinji (Deceased) [2016] KEHC 2377 (KLR) the High Court, W. Musyoka, J. stated as follows:
“Then there is Rule 41 of the Probate and Administration Rules. It deals with the actual hearing of the application for confirmation for grant. The language of Rule 41(1) suggests that the grant, the application, the supporting affidavits and the protest affidavits ought to be read to the administrator applicants, any protestors and ‘any other person interested.’ This would mean that all those interested in the estate ought to be notified of the hearing in order that they may be present when the grant is being confirmed, so that they can raise any issues of concern to them.
The record of 19th May 1995 indicates that apart from counsel for the administrators, there was no attendance by any other person, including the applicants herein. There is nothing on record to indicate that they had been notified of the hearing. They ought to have been so notified in compliance with Rule 41(1) of the Probate and Administration Rules.”
54. In the present case, the persons who were participating in the confirmation of the grant and the protest were the petitioner, the protestors and yet the summons for confirmation of grant indicated that there were three other beneficiaries to the estate who would then be interested in the administration of the estate as provided for under the rule. There is no indication that the court directed that they participate in the hearing as provided for under Rule 41(1) of the Probate and Administration Rules. I am persuaded to follow the decision above and find that the trial court erred in not involving the other beneficiaries in the proceedings for confirmation of the grant. It is indicated that three of the beneficiaries are since deceased. However, their children are there and they ought to have been given an opportunity of participating in the confirmation and protest hearings.
55. The importance of their attendance and participation is underscored by the fact that, the children of Luka Mukono (deceased) would particularly be affected by the decision made by the learned trial magistrate because it was leading to fresh distribution of the estate of the deceased and in the manner suggested, they were obviously going to lose out a portion of their land in which they were in occupation.
56. The second effect would be on those who were not protesting the proposed distribution of the estate. Could they have renounced their right to inherit the property so that after all, the distribution of the estate would only affect the petitioner, the three protestors Mary, Margaret and Felista and the children of Luka Mukono? If that turned out to be the case, it would mean that the mode of distribution of the estate and the share of each beneficially may turn out to be different from that proposed by the learned trial magistrate because it would mean distribution amongst only five and not seven beneficiaries if at all what was suggested by the trial court was to be retained.
57. As stated above there is the consent to the mode of distribution which was signed by all the beneficiaries apart from Mary Wanjiku Ngai. All the persons who signed the consent ought to have been given an opportunity of stating whether they were agreeable to the mode of distribution as proposed by the petitioner and if not, why a change of mind.
58. Yet again, in hearing the protest which was within the confirmation proceedings, the court began with taking the evidence of the protestors contrary to the express provisions of Rule 41(1) of the Probate and Administration Rules above which provides that the court “… shall then hear the applicant and each protester and any other person interested, …” an indication that the petitioner ought to have been the first one to be heard since in any case the application for confirmation was his.
59. Even though the procedure adopted by the trial court to start the hearing of the summons for confirmation of the grant with the protestors was in error, I find that no prejudice was occasioned to any of the parties who participated.
60. All the same, it is important that all the parties who were required to be heard on the confirmation of the grant and protest should be heard.
61. At this point, it is difficult to know whether the parties and witnesses who testified are still present and well to testify or participate in the matter again. In the circumstances, in order to issue comprehensive directions on how the matter will be proceeded with, I will ask all the parties to attend this court for confirmation of this issue.
62. Therefore, from the foregoing consideration of the proceedings before the trial court, I find that this court needs to establish the status of all the parties interested in the administration of the estate before issuing final orders on the case.
63. Consequently, it is directed that the Deputy Registrar of this court at Kerugoya shall issue summonses to each of the parties, the petitioner, protestors and all the other beneficiaries to attend this court virtually on 17th December 2025 for further directions on how the case will proceed.
64. Orders accordingly.
Dated, signed and delivered on the Virtual Platform, Teams this 10th day of November 2025.
ANDAYI W. F.
JUDGE
In the presence of:
Nyakeriga for the Appellant.
Otieno h/b for Makworo for the Respondents.
Ummu h/b for Job: Court Assistant.
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