JOSEPH KARUOYA GITHINJI VS LYDIA WANJERI AND PHILISIKA WANJA AND 4 Others

HIGH COURT FAMILY APPEAL NO. E008 OF 2022

(From Karatina Succession Cause No. 20 of 2018)

JOHN KARUOYA GITHINJI……………………..…………….APPELLANT

VERSUS

LYDIA WANJERI…………………….…………………..1^ST RESPONDENT

PHILISIKA WANJA…………………………………….2^ND RESPONDENT

ZIPPORAH MURUGI…………………………………..3^RD RESPONDENT

ANNAH WARUGURU…………………………………..4^TH RESPONDENT

ELIZABETH MUTHONI…………………………….….5^TH RESPONDENT

JUDGEMENT

1. Before this Court is the Memorandum of Appeal dated 20^th July 2022 by which the Appellant JOSEPH KARUOYA GITHINJI seeks the following orders:-

“(a) That the Ruling and orders of the learned trial magistrate dated 22^nd June 2022 be set aside and the protest be upheld.

(b) Alternatively and without prejudice to prayer 1 above the case be remitted back to the lower court for hearing of the protest in accordance with Kikuyu customary law.

(c) Costs of this appeal.

2. The 1^st to 6^th Respondents all opposed the appeal. However on 28^th June 2024 when the matter came up for hearing, the court was informed that the 1^st to 5^th Respondents are all now deceased.  Counsel for the Appellant indicated that they would therefore proceed with the appeal only as against the 6^th Respondent.

3. Accordingly the court withdrew the Appeal against the 1^st to 5^th Respondents and the Appeal proceeded against the 6^th Respondent ELIZABETH MUTHONI only.

4. The appeal was canvassed by way of written submissions.  The Appellant filed the written submissions dated 18^th September 2024 whilst the Respondent relied upon her written submissions dated 12^th July 2024.

BACKGROUND

5. This appeal arises from the proceedings and Ruling in Karatina Succession Cause No. 20 of 2018.  That Succession Cause related to the estate of the late JOSEPH KARUOYA GITHINJI (hereinafter ‘the Deceased’) who passed away on 30^th September 1972.  A copy of the Death Certificate Serial Number 37470 appears at page 3 of the Record of Appeal filed on 23^rd March 2023.

6. Following the demise of the Deceased PHILISIKA WANJA KAMWENJI and ELIZABETH MUTHONI were appointed as the Administrators of the estate vide a Grant of letters of Administration Intestate jointly to the two on 6^th March 2018.

7. The two administrators then filed a Summons for Confirmation of Grant dated 23^rd September 2019 in which they proposed that the estate be distributed equally amongst all the beneficiaries.

8. At that point the Appellant Joseph Karuoya Githinji filed a Protest dated 10^th February 2020.  The Appellant was a grandson to the Deceased being a son to one LYDIA WANJERI (Deceased) who was a daughter to the Deceased.

9. In his Affidavit of Protest the Appellant averred that the Deceased actually died testate having left a written will dated 24^th August, 1971 in which the Deceased left to the Appellant land Parcel Number IRIANI/GATUNDU/176 absolutely (hereinafter the “Suit land’).

10. The Appellant claimed that he resided with the Deceased and cared for him.  The Appellant further claimed that the Deceased had acquired the suit land through a loan facility taken from a bank and that it was the Appellant who repaid the loan.  That the Appellant has extensively developed the property.

11. The Appellant argued that the daughters of the Deceased got married and each had her own homes and do not utilize the suit land.  The Appellant therefore proposed that the suit land be divided equally amongst the grandchildren of the Deceased.

12. That Protest was heard in the lower court and vide a Ruling delivered on 22^nd June 2022, Hon. K. M. NJALALE Principal Magistrate dismissed the protest and directed that the mode of distribution proposed by the Respondents be adopted.

13. Being aggrieved by that ruling the Appellant filed the present appeal which appeal was premised upon the following grounds:-

“1. The Learned Principal Magistrate erred in and in fact in placing reliance upon the law of Succession Act (Chapter 160, Laws of Kenya) at the time of the demise of JOSEPH KARUOYA GITHINJ (Deceased) thereby arriving at an erroneous decision.

  2.  The Learned trial magistrate erred in fact and in law in applying the provisions of the Law of Succession Act (Cap 160, Laws of Kenya) having regard to the express provisions of section 2(2) of the said Act and therefore arrived at a wrong determination of the Protest.

3. The learned Principal Magistrate erred in fact and in law by failing to appreciate that the substantive law applicable in the circumstances of the case is Kikuyu Customary law.

4. That the learned Principal Magistrate erred in fact and in law in failing to Uphold the Written Will of deceased dated 24^th August 1971 to the extreme prejudice of the Appellant.

5. That the Learned Principal Magistrate erred in fact and in law in dealing with the matter in total disregard of the Probate & Administration rules regarding Testate Succession and proceeding with said Succession cause as Intestate thereby depriving the appellant an opportunity to Probate the Will of the deceased and therefore causing an irreparable error in law and in fact.

6. The Learned Principal Magistrate erred in law and in fact by misapprehending the provisions of section 1 of the law of Succession Act thereby arriving at a wrong conclusion in distributing the estate of the deceased.

7. The Learned trial Magistrate erred in fact and in law in disregarding the fact that the Appellant and his siblings have resided on the said parcel of land being ancestral land for a period exceeding 50 years to the exclusion of the Respondents and thereby disinheriting them.

8. The Learned Principal Magistrate erred in fact and in law by disregarding and dismissing the Appellants Protest without according the Appellant’s Protest due consideration.

9. The determination by the trial court is against the weight of the evidence adduced.”

ANALYSIS AND DETERMINATION

14. I have considered the Memorandum of Appeal filed in this matter, the record of the proceedings before the lower court as well as the written submissions filed by both parties.

15. This is a first appeal, thus it is the duty of this court to re-evaluate and review the evidence adduced in the lower court and to draw its own conclusions on the same.  In SELLE & ANOTHER -VS- ASSOCIATED MOTOR BOAT COMPANY LIMITED & OTHERS [1968] E.A 123, the court of Appeal held that;-

“An appeal to this court form 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 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……….”

16. The questions which arise for consideration in the appeal are as follows:-

(1) Who ranks in priority.

(2) Did the Deceased leave a written will.

(3) Should the estate be distributed in accordance with

Kikuyu customary law.

(4) Is the appeal merited.

PRIORITY

17. According to the letter dated 8^th January 1991 written by the chief of Iria-ini location the Deceased Joseph Karuoya Githinji was survived by six (6) daughters namely:-

1. Lydia Wanjeri

2. Priska Wanja

3. Zipporah Murugi

4. Annah Waruguru

5. Elizabeth Muthoni

6. Ruth Gathigia

18. Five (5) of the daughters of the Deceased have since died and only one daughter Elizabeth Muthoni is still alive.

19. The Appellant is not a biological child of the Deceased. He is the son of Lydia Wanjeri a daughter of the Deceased.  Therefore the Appellant is in fact a grandson to the Deceased.  The question which then arises is who ranks in priority as beneficiary in respect of the estate of the Deceased - is it the daughters of the Deceased or the grandson.

20. Section 66 of the Law of Succession Act Cap 160, Laws of Kenya provides as follows:-

“When a deceased dies intestate, the court shall save as otherwise expressly provided, have final discretion as to the person or persons to whom a grant of letters of administration shall, in the best interests of all concerned, be made, but shall, without prejudice to that discretion, accept as a general guide the following order of preference -

1. Surviving spouse or spouses, with or without

association of other beneficiaries;

1. Other beneficiaries entitled on intestacy, with

priority according to their respective beneficial

interests as provided by Part V;

1. The Public Trustee; and
2. Creditors:”

21. In order to determine who ranks in priority regarding the estate of the Deceased the court must consider the level of consanguinity which each party has to the Deceased.

22. Blacks Law Dictionary defined ‘consanguinity’ as

“The relationship of persons of the same blood or origin.”

23. The law requires that generations be counted from the intestate beginning with the parent up to the common ancestor and then down to the particular relation.  Therefore, if a person is claiming to be a next-of-kin he/she must show the level of relationship in equal degrees derived from each difference level of common ancestors.

24. In other words, the term “next of kin.” for intestate succession purposes only, is understood in the primary sense of those nearest to the intestate by blood.  Thus this dispute can only be determined by examining the degree of consanguinity and affinity so as to determine who between the parties is nearest by blood to the deceased.  An examination of the consanguinity and affinity chart below will help in determining this issue.

       AFFINITY             TRANSANGUINITY                                                                                                                                                    

AFFINITY

T

25. Therefore the Respondent being a biological child of the Deceased is at the 1^st degree and ranks in priority over the Appellant who is a grandchild of the Deceased.

26. That is not to say that grandchildren can never inherit from the estate of their grandchildren.  Where the child of a deceased person passes away then the grandchild of that Deceased may step in and inherit the share of the estate due to their deceased parent.

27. In RE Estate of Wahome Njoki Wakagoto (2013) eKLR it was held:-

“Under Part V, grandchildren have no right to inherit their grandparents who died intestate after 1^st July 1981.  The argument is that such grandchildren should inherit from their own parents.  This means that the grandchildren can only inherit their grandparents’ indirectly through their own parents, the children of the deceased.  The children inherit first and thereafter grandchildren inherit from the children.  The only time grandchildren inherit directly from their grandparents is when the grandchildren’s own parents are dead.  The grandchildren step into the shoes of their parents and take directly the share that ought to have gone to the said parents.”  [own emphasis]

28. In the case of Cleopa Amutala Namayi v Judith Were Succession Cause 457 of 2005 [2015] eKLR Hon. Mrima, J. observed that:-

“Be that as it may, under Part V of the Act grandchildren have no automatic right to inherit their grandparents….  The argument behind this position is that such grandchildren should inherit from their own parents.  This means that the grandchildren can only inherit from their grandparents indirectly through their own parents….  The children to the grandparents inherit first and thereafter the grandchildren inherit from their parents.  The only time where the grandchildren inherit directly from their grandparents is when the grandchildren’s own parents are dead…. [own emphasis]

29. I therefore find that the Appellant cannot claim a right in priority over the estate of the Deceased for as long as one of the biological children of the Deceased remains alive.  The Appellant can only claim the share that would be due to his late mother.

30. The Appellant in his protest claimed that the Deceased left a written will in which the Deceased bequeathed his entire estate comprising of Land Parcel No. Iriani/Gatundu/176 to the Appellant.  According to the Respondents the Deceased died intestate.

31. In order for a will to be adopted by a court that written will must be proved in court.  The formal requirements of a Written will are set out in Section 11 of the Law of Succession Act, as follows:-

“11.  No written will shall be valid unless –

1. The testator has signed or affixed his mark to the

will, or it has been signed by some other person in the presence and by the direction of the testator;

1. The signature or mark of the testator, or the

signature of the person signing for him, is so placed that it shall appear that it was intended thereby to give effect to the writing as a will:

1. The will is attested by two or more competent

witnesses, each of whom must have seen the testator sign or affix his mark to the will, or have seen some other person sign the will, in the presence and by the direction of the testator, or have received from the testator a personal acknowledgement of his signature or mark, or of the signature of that other person; and each of the witnesses must sign the will in the presence of the testator, but it shall not be necessary that more than one witness be present at the same time, and no particular form of attestation shall be necessary.”

32. The written will which the Appellant claims was left by the Deceased was produced in the trial court.  It a handwritten document in Kikuyu Vernacular language and translated into English (see page 7 and 8 of the record of Appeal.)  The document is dated 24^th August 1971.

33. The written will produced by the Appellant not surprisingly indicates that due to the fact that he had no biological son, the Deceased leaves his entire estate to the Appellant.  The document is signed by three persons namely GACHERU BURI, KAMUNGE KARONJI and FINEHAS KABOI.

34. Where a written will is not opposed then the court would have no issue in accepting it. However where as in the present case the question of whether the Deceased left a written will is disputed then the person seeking to introduce the will must adduce sufficient evidence to prove the same.

35. It is not clear who wrote this purported will.  Was it written by the Deceased or somebody else?  None of the three (3) persons who witnessed the will were called to testify in this matter.  The identity card numbers of the alleged witnesses were not indicated on the document.

36. In her ruling the learned trial magistrate noted that the Deceased having died in the year 1972 and the Appellant having been born in the year 1964 then the Appellant was only eight (8) years old when the Deceased died.  The Appellant has not explained he came into possession of this will.  It is also curious that only the Appellant (who stands to benefit immensely from this will) appeared to have had any knowledge of its existence.  None of the Deceased’s children appeared to have had knowledge of a written will.

37. The Administrators in this case petitioned the court for a Grant Intestate which Grant was issued in March 2018.  Two (2) years later the Appellant claims that the Deceased left a written will.  Why did he not object to the Petition for Grant earlier.

38. I am inclined to believe that his so-called will is nothing but a manufactured document.  It is an afterthought now being raised in an attempt to bolster the Appellants claim to the estate.  I am not satisfied that the document produced by the Appellant is genuine as the same has not been proved satisfactorily.  I therefore find and hold that the Deceased died intestate.

(iii) Whether the estate should be distributed in accordance with Kikuyu Customary Law

39. The Appellant submits that the estate of the Deceased ought to be distributed according to Kikuyu cultural norms.  In so saying the Appellant is of the view that since the Deceased had no biological son his estate ought to be inherited not by his daughter but by a close male relative.  The Appellant cites C. Cotrans Restatement of African Customary Law as follows;-

“Daughters are normally excluded but may also receive a share if they remain unmarried.  In the absence of sons, the heirs are the nearest patrilineal relatives of the Deceased namely father, full brothers, half-brothers and paternal uncles.”

40. Section 38 of the law of Succession Act provides for the mode of distribution of an estate where the Deceased died intestate leaving behind a child or children but no spouse (as is the case here).

41. The Appellant cited Section 2(2) of the Law of Succession Act which provides as follows;-

“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 estate shall commence or proceed so far as possible in accordance with this Act.” 

42. The Appellant therefore submitted that since the Deceased died before 1^st July 1981 when the Succession Act came into operation, then the estate ought to be governed by the written law and customs applicable at the date of death being Kikuyu customary law. The application of Kikuyu Customary law would in effect disinherit the biological children (daughters) of the Deceased.

43. In MARY RONO -VS- JANE RONON & Another [2005] eKLR the Court of Appeal observed as follows:-

“As a member of the international community Kenya subscribes to International Customary Laws and has ratified various international covenants and treaties.  In particular, it subscribes to the International Bill of Rights.  What is the Universal Declaration of Human Rights (1948) and two International human rights covenants.  The covenant on economic, Social and cultural rights and the Covenant on Civil and Political Rights (both adopted by the UN General Assembly in 1966.  In 1984, it also ratified, without reservations the Convention on the Elimination of All forms of Discrimination against Women in short CEDAN.  Article 1 thereof defines discrimination against women as;-

“Any Distinction, exclusion, or restriction made on the basis of sex which has the effect or purpose of impairing or nullifying the recognition, enjoyment or exercise by women irrespective of their marital status, on a basis of equality of men and women, of human rights and fundamental freedoms in the political, economic, social, cultural field”

44. In the African context Kenya subscribes to the African charter of Human and Peoples Rights otherwise known as the Banjul Charter (1981) which it ratified in 1992 without reservations.  In Article 18 the charter enjoins member states interalia to:-

“………ensure the elimination of every discrimination against women and also ensure the protection of the woman and the child as stipulated in International declarations and conventions.”

45. In RE ESTATE OF M’MURUNGI M’ BWIRIA [2019] eKLR the Court qualified the application of customary law by citing Section 3(2) of the Judicature Act, Cap 8 which provides that

“The High Court, the court of Appeal and all subordinate courts shall be guided by African customary law in Civil cases in which one or more of the parties is subject to it or affected by it so far as it is applicable and is not repugnant to justice and morality or inconsistent with any written law, and shall decide all such cases according to substantial justice without undue regard to technicalities of procedure and without undue delay”  [own emphasis]

46. In Succession Cause No. 23 of 2018.  IN THE MATTER OF THE ESTATE of JOEL M’ THARA RURIA (Deceased) [2021] eKLR, a case on all fours with the present case where the Appellant  sought to rely on Meru customary law which also excluded married daughters in the distribution of the estate of the Deceased.  Hon. Justice L. W. GITARI stated as follows:-

“29. A court of law cannot invoke a customary law which is repugnant to natural justice, equity and good conscience.  The promulgation of the Constitution of Kenya 2010 drastically changed the position under the retired Constitution which under Section 82(4) had sanctioned some discrimination in some matters of personal law, it stated –

“Subsection (1) 82(1) shall not apply to any law so far as that makes provision, (b), with respect to adoption, marriage, divorce, burial devolution of property on death or other matters of personal law,”

30. I observe that the Petitioner’s proposed mode of distribution suggests that the daughters of the deceased are not entitled to an equal share of the estate as the sons.  In my view, the distribution of the deceased’s estate should be at par between his sons and daughters.  The Petitioner’s proposed mode of distribution offends the principles of natural justice, equity and good conscience and it’s my view that the same should not be adopted by this Court.

31. The Constitution which takes hierarchical primacy in the mode of exercise of jurisdiction, outlaws any law that is discriminatory.  Article 27 of the Constitution 2010 expressly prohibits discrimination on the basis of gender or marital status.  Notably, the 1963 independence Constitution equally outlawed discrimination.  In my view, a custom that prohibits the inheritance rights of females is discriminatory and unconstitutional.  I am therefore in agreement with the protestor’s submission that all children (daughters and sons) are equal before the law and therefore entitled to equal share of the deceased’s estate.

32. In the case of Stephen Gitonga M. Murithi v Faith Ngira Murithi [2015] eKLR, the Court of Appeal stated that:

“Section 38 enshrines the principle of equal distribution of the net intestate estate to the surviving children of the deceased irrespective of gender and whether married and comfortable in their marriage or unmarried.”[Own emphasis]

47. Based on the above I find that Kikuyu customary law cannot be applied to distribute the estate of the Deceased.  This would amount to disinheriting the children of the Deceased merely because they are married females – and would certainly amount to discrimination on the basis of gender.

48. This is a case in which the Deceased died intestate, leaving behind daughters but no sons Section 38 of the Law of succession Act provides that:-

“Where an intestate has left a surviving child or children but no spouse the net estate shall subject 41 and 42 devolve upon the surviving child if there is only one but shall be equally divided among the surviving children.”

49. The Appellant being a grandson of the Deceased is not considered a beneficiary of the estate under the terms of Section 29 of the Law of Succession Act, Neither has the Appellant proved that he was dependent on the Deceased person immediately prior to his demise.  The Appellant cannot rank in priority over the biological children of the Deceased even if they are married female children.  The Appellant has proposed that the estate devolve absolutely to himself seeking to selfishly disinherit the Deceased’s children.  I agree with the trial magistrate’s rejection of the Appellants proposal.

50. The appellant claimed that the Deceased took out a loan to purchase the suit property and that he (the Appellant) repaid that loan.  Firstly the Appellant has not availed any documentation to prove this claim.  Which Bank did the Deceased take the loan from and how much?  There is no proof that the Appellant made payments to any financial institution in order to offset a loan taken by the Deceased.

51. Secondly if the Appellant is by this claim implying that he has a stake in the suit land then he is before the wrong forum.  Any claim the Appellant may have on account of having contributed towards the purchase the suit property can only be ventilated in the Environment and Land Court (ELC) which is the only court empowered by Article 162 (2) (b) of the Constitution of Kenya 2010 to determine questions relating to ownership, use and occupation of land.  I therefore dismiss this claim by the Appellant.

52. Finally the learned trial magistrate concluded her ruling with the following words”-

“………….. I humbly opine that’s the protestors mode of proposed distribution is not merited and this court proceeds to adopt that [proposed] by the petitioners since it properly caters for all of the deceased’s beneficiaries as should be.  In the event that any beneficiary is deceased then her share goes to be equally distributed amongst her children.”

53. I could not agree more with the above finding.  In conclusion I find no merit whatsoever in this appeal.  The same is dismissed in its entirety costs.  Costs will be met by the Appellant.

Dated in Nyeri this 8^th day of November 2024.