JUDGEMENT
(Being an appeal against the Judgment of the learned Honourable N. MUNYENDO SRM delivered on 10th May 2019 at Othaya SRM succession Cause No 15 of 2018)
INTRODUCTION
1.The appellant in his memorandum of Appeal raised of grounds of Appeal challenging the learned Honourable Magistrate’s decision. The appellant contends that:
- a)the judgment is incapable of being effected.
- b)the learned Honourable Magistrate failed to take into account the prevailing circumstances and other related facts.
- c)The Hon. Magistrate disinherited the appellant and rendered her destitute.
- d)The court failed to take into account the occupation of each party before the decision.
- e)the process was not followed and letters of Absent beneficiaries were accepted impropriety.
- f)The learned Hon. Magistrate failed to analyse the Evidence .
- g)the Appellant was not granted an opportunity to present his case in the absence of counsel.
- 2.The court directed parties to file written submissions in the matter and they all complied.
DUTY OF THE COURT ON FIRST APPEAL
3.The duty of this court as a first appellate court is ably stated in the case of Selle Vs. Associated Motor Boat & Company Ltd (1986) E.A 123 where it was held that :
“An appeal to this court from the High court is hereby a way of a retrial and principles upon which this court acts in such an appeal are well settled”.
Briefly put they are that, this court must consider the evidence evaluate 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 that respect.
I am particular this court is necessarily bound to follow the trial judge’s findings of fact if it appears that we has clearly failed on some points to take into account particular circumstances or probabilities materially to estimate the evidence or if the impression based on the demeanour if a witness is inconsistent with the evidence in the case on general”.
4.It is this task of evaluating the evidence before the learned Honourable Magistrate that I now embark on in order to establish whether it is indeed true, that the magistrate arrived at a decision that was not supported by evidence or worse still the court disinherited the appellant as is alleged in her Grounds of Appeal.
ANALYSIS OF EVIDENCE
5.The allegation that the magistrate did not accord the appellant a hearing is out rightly made without reason. The record reflects that on the 27th March 2019 Margaret Ngina Miatu took to the stand and indicated to the court that:-
“I filed my affidavit of protest dated 25th April 2013 which I wish to adopt as my evidence in chief. That is all”.
6.It is clear therefore that the Appellant proceeded in person and adopted her affidavit as her evidence in chief.
7.Affidavit evidence is good evidence for in it the deponent avers that what is contained in the affidavit is true to the best of her knowledge and belief. It cannot therefore be argued by a party that where the court only receives an affidavit as the only evidence, that does not amount to a hearing.
8.To adopt such a position would render the Oaths and Statutory Declarations Act a useless piece of legislation in that evidence presented by way of affidavit would not be deemed to be sufficient for any judicial or quasi-judicial proceedings. Affidavit evidence has always been admitted in our courts and utilized fully in determination of cases to the exclusion of any other evidence.
9.The ground of appeal must therefore fail since the party elected to rely on the affidavit in its entirety. The choice of that mode of tendering evidence was voluntary and as such the appellant cannot be heard to say that she was prejudiced. Further, the Appellant was cross-examined by counsel for the petitioner and gave evidence at length. It is not in doubt therefore she was heard fully by the court.
10.The appellant admitted that his deceased father had two wives at the time of his death namely Teresa Wambui Miatu and Margaret Miatu. She told the court that she was the only child of her mother and that Margaret Wairimu her step mother had six children. According to the appellant, her deceased father had land parcel Nos. CHINGA/GIKIE/791 and Sipil Ponyolop Block 1/860. Additionally, the deceased had two plots at Kariko as per the Appellant’s testimony.
11.The appellant was clear that the dispute was solely about distribution. The appellant was emphatic that the property of the deceased should not be shared equally between all the siblings. She however was quick to remind the court that despite her position on distribution she was not selfish and was willing to share with her siblings.
12.The Respondent also testified and confirmed in material particulars the evidence of the Appellant in respect of the beneficiaries and properties. The Respondent testified that his wish was to have the properties shared equally between the 7 siblings since their mothers were deceased.
The Appellant and the Respondent were the only two witnesses who have evidence that the court was left to consider.
13.This court has independently analysed the evidence presented by the parties to the court and it is the view of the court that the only issue that is to be determined in this matter is whether the distribution ordered by the magistrate was proper in law considering all facts of the matter.
14.Upon careful analysis of the Evidence I have come to the conclusion that this is a case of a lone child who does not wish to share equally the property of her late father with the rest of siblings. It is a case of unbridled greed on the part of the Appellant. It is clear that the appellant being the only child of her mother must have entertained the wrongly held notion in most uninformed polygamous families that upon the demise of their father property should be shared as per the number of households irrespective of the children each household has. The appellant appears to me to be laboring under that illusion and somehow hopes that this court will grant her wish.
15.To divide the property of a deceased person based on the number of households without regard to the number of children in each household would be a great travesty of justice.
It is not any woman’s wish to bear one child or many children. Matters of children per household are not easy to determine.
Not easy because there is no way of telling in this case why Teresa Wambui Miatu lady one child (the Appellant) and Margaret Wairimu Miatu six.
The reasons could range from biological to personal choice and only the concerned mothers could tell. That however, is besides the point here.
16.The deceased had seven children and none of his wives was alive at the time the Appellant and the Respondent were tussling in court over distribution.
I have considered submissions filed by counsel for the Appellant and the Respondent as well.
DETERMINATION
17.In determining the distribution of the estate of the deceased in a polygamous family the court should do so bearing in mind the principles of fairness, equity and not equality among the beneficiaries see JEPORE SARAH CHRISTOPHER & 2 OTHERS Vs TERESS CHESANG CHRISTOPHER Succession Cause No. 14 of 2016.
18.It is the appellants position that the court failed to reach a decision guided by the above pronouncement. According to her, parties ought to have been allowed to retain what according to her was held by them at the time of the deceased’s death. She laments that the court coerced her to proceed in the absence of her counsel thus she was prejudiced.
19.I have scrutinized the record and I am not persuaded that the appellant was prejudiced at the hearing for she came out clearly her problem was distribution and no other. Evidence is by a party and not his counsel. The court did not wait for the Appellant’s counsel to arrive as per the record. The appellant must be reminded that it is not the business of courts to wait for counsel. The appellant was nevertheless accorded ample opportunity to prosecute her case.
20.The appellant did not tell the court why her counsel was late for court. In any event on 24th April 2019 the parties appeared and confirmed to the court that they all had filed submissions thus the input of counsel was taken into account by the court.
21.The learned Honourable Magistrate in making her decision on distribution was guided by the decision of Mabeya, J in Re- Estate of SBS [2014] eKLR in which he held:-
“It is clear from the above provision that the distribution in a polygamous union must be equal in accordance with the number of the children each house has and not otherwise”
22.This courts adopts a similar approach as Mabeya, J. It should never be the case that some siblings of a deceased person are disadvantaged in distribution simply because in their household they are many.
23. Equity would frown upon such distribution method. The deceased gathered property for his children and it did not matter to him how many children were there per household.
24.The deceased would have otherwise distributed the properties to the children before his demise. The Respondent in this appeal has come out as a gentleman who loves and cares for all his siblings. He was categorical that the deceased properties should be shared equally.
25.The learned Honourable Magistrate did not in my view apply the law incorrectly or misconstrue the provisions of Section 40 of the law of Succession Act to Warrant this courts intervention.
26.I decline to interfere with her exercise of judicial discretion for I find the mode of distribution adopted by the court to be legal, fair and equitable. 27.The Appellant stated in her evidence that she is not selfish. I however entertain serious doubts about the truthfulness and honesty in that statement. The appeal smacks of greed. It is not understandable why the appellant would be aggrieved by a decision that promotes equality, equity and fairness in the family such as the one arrived at by the magistrate.
28.In the end I find the appeal is lacking in merit and it is therefore dismissed.
29.Parties to bear their own costs.
30.it is so ordered.