(Being and appeal from the decree arising from the judgment of Hon. L.W. Kabaria (Principal Magistrate) delivered on 4/11/2022 in the Magistrates Court at Gichugu in Civil Suit No. 28 of 2021)
1. Mary Wairimu Mwaura and Sicily Ruguru Muriithi are the widows of Francis Muriithi Muchira (deceased). They were both administrators of their late husband’s estate in the Magistrates Court at Gichugu in Succession Cause No. 210 of 2016, In the Matter of the Estate of Francis Muriithi Muchira alias Francis Muriithi Nyaga (deceased). On 11/3/2020, the court delivered a ruling on an application by Mary, the appellant, for review of the probate court’s certificate of grant issued on 22/3/2019 and dated 4/3/2019 on the distribution of the estate of the deceased.
2. Among the court’s findings was that the Public Trustee Office at Nyeri had paid Sicily, the respondent herein some KShs 327,966.05 on 18/8/2006 vide cheque No. 295734 before the filing of the succession cause.
3. In her plaint amended on 9/7/2021 appellant filed suit claiming half share of the KShs 327,966.05. She pleaded that Sicily, the respondent took the entire KShs 327,966.05 from Kirinyaga District Farmers Sacco Society Ltd on 25/4/2008 which was money for the benefit of the estate and dependants of the deceased and spent the money alone to her exclusion and her children. It was her case therefore that she was entitled to KShs 163,983.05. Her prayer was for a declaration that as the other widow of the deceased and co-administrator she was equally entitled to half share of KShs 327,966.05.
4. The respondent filed a statement of defence dated 13/9/2021 and admitted the appellant’s claim that she had indeed received the KShs 327,966.05 from Kirinyaga District Farmers Sacco Society Ltd. She pleaded that she had received the money as the widow and administrator of the deceased’s estate.
5. On account of the statement of defence, the appellant filed a notice of motion dated 21/92021 seeking judgment on admission against the respondent. In a ruling delivered on 6/5/2022, the court dismissed the application on grounds that the admission in the statement of defence was not unequivocal.
6. The case proceeded for hearing. Only the appellant testified at the hearing. The respondent did not attend. The appellant adopted her witness statement dated 9/6/2021 and the accompanying documents in support of her case. Her evidence was more or less as her pleading, that the respondent pays her half of the KShs 327,966.05 from Kirinyaga Farmers Sacco.
7. Upon hearing the evidence the court dismissed her claim finding that she had wrongly made the claim in her individual capacity as a widow and not as administrator of the estate of the deceased. The court found that she should have brought the suit as administrator to recover the same as an asset of the estate.
8. The appellant was dissatisfied with the decision of the trial court and now appeals to this court through the memorandum of appeal amended on 21/12/2022 on grounds that:
a. the trial court took up a preliminary issue of jurisdiction, stating that the claim by the appellant ought to have been raised in a succession or probate court, without inviting the parties to address the court on that technical issue.
b. the learned trial misapprehended the law because the same court differently constituted and, in a succession cause, had declined to take up the claim and this ruling was before the trial court.
c. the appellant had proved her claim under section 107 of the Evidence Act (Cap. 80) Laws of Kenya and the respondent had failed to attend court and therefore no evidence to challenge that of the appellant.
d. the trial court was in error to come to the present decision when in an earlier ruling it had found that the respondent had nearly admitted the appellant’s claim.
9. The appellant therefore prays that the judgment of the trial court be set aside and substituted with a judgment allowing the appellant’s claim.
10. 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)”.
11. The first ground of appeal is that the learned trial magistrate raised and determined an issue of jurisdiction without calling the parties to respond to the same. Indeed, the learned trial magistrate approached the issue as if it was for the succession court to determine when she commended that “… what the plaintiff asks the court to do here is to determine her share in a portion of the deceased’s estate which is a preserve of the probate court.” I will deal with this ground later together with the second ground of whether or not the issue should have been dealt with in the succession cause.
12. The second and third grounds are dealt with as one, whether the appellant proved her case on a balance of probability as provide for under section 107 of the Evidence Act (Cap. 80) Laws of Kenya.
13. Learned counsel for the appellant has made very substantial submissions on the appeal going back to the history of the case from the succession court to the interlocutory orders made by the trial court in the present case before the matter was finally heard and determined leading to the present appeal. At the end of the day, for this court, the issue boils down to whether the appellant proved that the funds being claimed by the appellant formed part of the free estate of the deceased and therefore available to the administrators for distribution to the beneficiaries.
14. The learned trial magistrate seems to have had a challenge in appreciating this issue and I am inclined to find that the appellant seems to be acting under a similar misapprehension.
15. The respondent did not participate in the appeal by filing submissions.
16. It is apparent from her pleadings in paragraph 7 of the amended plaint and evidence in court and exhibits produced in the trial court as pay slip of the deceased that the funds KShs 327,966.05 the subject of the suit, were from Kirinyaga District Farmers Sacco Society Ltd. The misapprehension by the appellant is in the same paragraph 7 where she goes on to state that, “the money was for the benefit of the estate and dependents of the deceased.” In her witness statement dated 9/6/2021 which she adopted in her testimony in court as her evidence in chief, she stated that the KShs 327,966.05 was from Kirinyaga District Farmers Sacco Society Ltd. That the money was from the Sacco is also supported by the pay slip of the deceased for the month of December 2004 which shows that as at that date the deceased had cooperative shares worth KShs 273,5000/=. It is endorsed thereon in handwriting that, “cheque No. 295734 collected by Sicily Ruguru Muriithi 18/8/2006 amount 327,966.05.” No doubt this is the evidence the appellant was using to claim her alleged half share of the amount.
17. Besides her written statement that the money was from Kirinyaga District Farmers Sacco Society Ltd, the appellant in her oral testimony in court said that the money Sicily took was from Kirinyaga District Sacco and that she took the money as the wife of the deceased.
18. It is therefore apparent from the evidence tendered by the appellant that the funds she is seeking to get a share of were Sacco shares of the deceased as a member of Kirinyaga District Farmers Sacco Society Ltd.
19. Now, for purposes of succession, the funds claimed by the appellant are subject to nomination and do not form part of the estate of the deceased. The process for distribution of the funds is set out under the Co-operatives Societies Act (Cap. 490) Laws of Kenya and its subsidiary legislation allowing the Sacco to release funds to a nominee or the personal representative of a deceased’s estate where there is no nominee.
20. This issue has been dealt with extensively in various cases, among them the case of G.A.A.M & another v M. O. A. O [2016] KEHC 6296 (KLR) where the High Court stated as follows:
“The deceased held shares with Kakamega Teachers Sacco Society because that is what the estate herein is all about. However, under section 39(1) of the Co-operative Societies Act 1997, upon the death of a Co-operator, the Society may transfer his shares or interest to the person nominated by the Co-operator in accordance with the Act or if no person has been nominated, to such person as may appear to be the personal representative of the deceased. … shares in a Co-operative Society are dealt with differently and only in accordance with section 39(1) of the Co-operative Society Act where the co-operator nominated nominee. The section makes it clear that where the Co-operator nominated a person to be the nominee. Shares in the Co-operative Society should be transferred direct to that person. The personal representative comes in and can only access those shares in cases where there was no nominee.
In the case of re Estate of Carolyne Achieng Wagah (deceased) 2015 eKLR Nairobi Musyoka, J. rendered himself on the law as follows:
“It is the law that funds the subject of a nomination do not form part of the nominator’s estates and therefore such funds cannot pass under the will of the deceased or vest in his personal representative. Such funds are not subject to the succession process, and should be dealt with in accordance with the law governing nominations. Nominations are statutory, in the sense of them being specifically provided for by a particular statute.”
A similar legal position was taken by Gikonyo, J. in the case of Benson Mutuma Muriungi vs CEO Kenya Police Sacco & Another [2016] eKLR when the learned Judge said:-
“Nominations under the Co-operative Societies Act are statutory. Section 39(1) of the co-operative Societies Act provides that upon death of a member, a Co-operative Society may transfer the share or interest of the deceased member to a person nominated in accordance with the Act or the rules made thereunder ... The property which is subject of a statutory nomination is not free property of a deceased member. It does not pass or vest in the personal representative of the deceased member or to the estate; it passes directly to the nominee.”
When the petitioners brought this cause, they said the estate of the deceased comprised shares in Kakamega Teachers Co-operative Society. I agree with both Musyoka, J. and Gikonyo, J. that shares in a Co-operative Society do not form part of a deceased’s estate since they are dealt with in accordance with clear provisions of a statute.
The question would be whether there was a nomination in the case of the deceased herein, and if his share was dealt with in accordance with the law. However, that is not an issue before this Court now.”
21. From the foregoing rendition of the law on how shares in a cooperative society should be dealt with upon the demise of a member of the society, it follows that the appellant was required to show that she was either a nominee of the deceased to receive the funds or that there was no such nominee and therefore the funds would go to the personal representative who was not necessarily the administrator of the estate. Even in that case, it appears that the Society has a discretion to determine to which personal representative the funds would go.
22. The appellant in this case filed this suit after the funds had already been given out to the respondent by the Kirinyaga Farmers Sacco Ltd. The appellant did not produce any evidence before the trial court to prove either that she was a nominee or one of the nominees to receive the funds or that there no such nominee and therefore the funds should have been reserved by the Society to await the appointment of a personal representative of the deceased’s estate. As it were, there is evidence, and the respondent admitted as much in her statement of defence, that the funds were paid out to her as a widow of the deceased. The only assumption that can be made, in the absence of evidence to the contrary, is that the Cooperative society paid out the money to the nominee in accordance with the law. The basis of the appellant’s claim to the half share was that she was a widow of the deceased and also a co-administrator of the estate of the deceased. She should have pursued the Sacco to get information on who were the nominees for the funds for the deceased. There was no such evidence the appellant tendered before the trial court and therefore failed to prove her case on a balance of probability as required under section 107 of the Evidence Act.
23. It is apparent that the appellant was mistaken on her claim and therefore failed to make available evidence to enable the court find that she was entitled to the amount claim.
24. The learned trial magistrate was in error on her part to approach the issue of the funds as if they formed part of the estate of the deceased for distribution to the beneficiaries. Although she arrived at the correct, decision that the suit appellant had not proved her case on a balance of probability, the reasons were not correct.
25. Nevertheless, I find that the trial court was correct in dismissing the appellant’s claim albeit for different reasons which I have found were in error.
26. Consequently, the appeal herein is dismissed and this court confirms the judgment of the trial court dismissing the suit but for the reasons stated hereinabove.
27. Considering the relations of the parties herein and the fact that the suit was filed out of a mistake, I order each party to bear her own costs of this appeal and of the trial court seeing that there was no order for costs therein.
28. Orders accordingly.
29. Dated, signed and delivered on the Virtual Platform, Teams this 10th day of July 2025.
ANDAYI W. F.
JUDGE
In the presence of:
Kariuki for Appellant.
No appearance for the Respondent.
Job: Court Assistant.
This decision is uploaded on the Judiciary Case Tracking System for immediate access by the parties upon upload.
1. Mary Wairimu Mwaura and Sicily Ruguru Muriithi are the widows of Francis Muriithi Muchira (deceased). They were both administrators of their late husband’s estate in the Magistrates Court at Gichugu in Succession Cause No. 210 of 2016, In the Matter of the Estate of Francis Muriithi Muchira alias Francis Muriithi Nyaga (deceased). On 11/3/2020, the court delivered a ruling on an application by Mary, the appellant, for review of the probate court’s certificate of grant issued on 22/3/2019 and dated 4/3/2019 on the distribution of the estate of the deceased.
2. Among the court’s findings was that the Public Trustee Office at Nyeri had paid Sicily, the respondent herein some KShs 327,966.05 on 18/8/2006 vide cheque No. 295734 before the filing of the succession cause.
3. In her plaint amended on 9/7/2021 appellant filed suit claiming half share of the KShs 327,966.05. She pleaded that Sicily, the respondent took the entire KShs 327,966.05 from Kirinyaga District Farmers Sacco Society Ltd on 25/4/2008 which was money for the benefit of the estate and dependants of the deceased and spent the money alone to her exclusion and her children. It was her case therefore that she was entitled to KShs 163,983.05. Her prayer was for a declaration that as the other widow of the deceased and co-administrator she was equally entitled to half share of KShs 327,966.05.
4. The respondent filed a statement of defence dated 13/9/2021 and admitted the appellant’s claim that she had indeed received the KShs 327,966.05 from Kirinyaga District Farmers Sacco Society Ltd. She pleaded that she had received the money as the widow and administrator of the deceased’s estate.
5. On account of the statement of defence, the appellant filed a notice of motion dated 21/92021 seeking judgment on admission against the respondent. In a ruling delivered on 6/5/2022, the court dismissed the application on grounds that the admission in the statement of defence was not unequivocal.
6. The case proceeded for hearing. Only the appellant testified at the hearing. The respondent did not attend. The appellant adopted her witness statement dated 9/6/2021 and the accompanying documents in support of her case. Her evidence was more or less as her pleading, that the respondent pays her half of the KShs 327,966.05 from Kirinyaga Farmers Sacco.
7. Upon hearing the evidence the court dismissed her claim finding that she had wrongly made the claim in her individual capacity as a widow and not as administrator of the estate of the deceased. The court found that she should have brought the suit as administrator to recover the same as an asset of the estate.
8. The appellant was dissatisfied with the decision of the trial court and now appeals to this court through the memorandum of appeal amended on 21/12/2022 on grounds that:
a. the trial court took up a preliminary issue of jurisdiction, stating that the claim by the appellant ought to have been raised in a succession or probate court, without inviting the parties to address the court on that technical issue.
b. the learned trial misapprehended the law because the same court differently constituted and, in a succession cause, had declined to take up the claim and this ruling was before the trial court.
c. the appellant had proved her claim under section 107 of the Evidence Act (Cap. 80) Laws of Kenya and the respondent had failed to attend court and therefore no evidence to challenge that of the appellant.
d. the trial court was in error to come to the present decision when in an earlier ruling it had found that the respondent had nearly admitted the appellant’s claim.
9. The appellant therefore prays that the judgment of the trial court be set aside and substituted with a judgment allowing the appellant’s claim.
10. 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)”.
11. The first ground of appeal is that the learned trial magistrate raised and determined an issue of jurisdiction without calling the parties to respond to the same. Indeed, the learned trial magistrate approached the issue as if it was for the succession court to determine when she commended that “… what the plaintiff asks the court to do here is to determine her share in a portion of the deceased’s estate which is a preserve of the probate court.” I will deal with this ground later together with the second ground of whether or not the issue should have been dealt with in the succession cause.
12. The second and third grounds are dealt with as one, whether the appellant proved her case on a balance of probability as provide for under section 107 of the Evidence Act (Cap. 80) Laws of Kenya.
13. Learned counsel for the appellant has made very substantial submissions on the appeal going back to the history of the case from the succession court to the interlocutory orders made by the trial court in the present case before the matter was finally heard and determined leading to the present appeal. At the end of the day, for this court, the issue boils down to whether the appellant proved that the funds being claimed by the appellant formed part of the free estate of the deceased and therefore available to the administrators for distribution to the beneficiaries.
14. The learned trial magistrate seems to have had a challenge in appreciating this issue and I am inclined to find that the appellant seems to be acting under a similar misapprehension.
15. The respondent did not participate in the appeal by filing submissions.
16. It is apparent from her pleadings in paragraph 7 of the amended plaint and evidence in court and exhibits produced in the trial court as pay slip of the deceased that the funds KShs 327,966.05 the subject of the suit, were from Kirinyaga District Farmers Sacco Society Ltd. The misapprehension by the appellant is in the same paragraph 7 where she goes on to state that, “the money was for the benefit of the estate and dependents of the deceased.” In her witness statement dated 9/6/2021 which she adopted in her testimony in court as her evidence in chief, she stated that the KShs 327,966.05 was from Kirinyaga District Farmers Sacco Society Ltd. That the money was from the Sacco is also supported by the pay slip of the deceased for the month of December 2004 which shows that as at that date the deceased had cooperative shares worth KShs 273,5000/=. It is endorsed thereon in handwriting that, “cheque No. 295734 collected by Sicily Ruguru Muriithi 18/8/2006 amount 327,966.05.” No doubt this is the evidence the appellant was using to claim her alleged half share of the amount.
17. Besides her written statement that the money was from Kirinyaga District Farmers Sacco Society Ltd, the appellant in her oral testimony in court said that the money Sicily took was from Kirinyaga District Sacco and that she took the money as the wife of the deceased.
18. It is therefore apparent from the evidence tendered by the appellant that the funds she is seeking to get a share of were Sacco shares of the deceased as a member of Kirinyaga District Farmers Sacco Society Ltd.
19. Now, for purposes of succession, the funds claimed by the appellant are subject to nomination and do not form part of the estate of the deceased. The process for distribution of the funds is set out under the Co-operatives Societies Act (Cap. 490) Laws of Kenya and its subsidiary legislation allowing the Sacco to release funds to a nominee or the personal representative of a deceased’s estate where there is no nominee.
20. This issue has been dealt with extensively in various cases, among them the case of G.A.A.M & another v M. O. A. O [2016] KEHC 6296 (KLR) where the High Court stated as follows:
“The deceased held shares with Kakamega Teachers Sacco Society because that is what the estate herein is all about. However, under section 39(1) of the Co-operative Societies Act 1997, upon the death of a Co-operator, the Society may transfer his shares or interest to the person nominated by the Co-operator in accordance with the Act or if no person has been nominated, to such person as may appear to be the personal representative of the deceased. … shares in a Co-operative Society are dealt with differently and only in accordance with section 39(1) of the Co-operative Society Act where the co-operator nominated nominee. The section makes it clear that where the Co-operator nominated a person to be the nominee. Shares in the Co-operative Society should be transferred direct to that person. The personal representative comes in and can only access those shares in cases where there was no nominee.
In the case of re Estate of Carolyne Achieng Wagah (deceased) 2015 eKLR Nairobi Musyoka, J. rendered himself on the law as follows:
“It is the law that funds the subject of a nomination do not form part of the nominator’s estates and therefore such funds cannot pass under the will of the deceased or vest in his personal representative. Such funds are not subject to the succession process, and should be dealt with in accordance with the law governing nominations. Nominations are statutory, in the sense of them being specifically provided for by a particular statute.”
A similar legal position was taken by Gikonyo, J. in the case of Benson Mutuma Muriungi vs CEO Kenya Police Sacco & Another [2016] eKLR when the learned Judge said:-
“Nominations under the Co-operative Societies Act are statutory. Section 39(1) of the co-operative Societies Act provides that upon death of a member, a Co-operative Society may transfer the share or interest of the deceased member to a person nominated in accordance with the Act or the rules made thereunder ... The property which is subject of a statutory nomination is not free property of a deceased member. It does not pass or vest in the personal representative of the deceased member or to the estate; it passes directly to the nominee.”
When the petitioners brought this cause, they said the estate of the deceased comprised shares in Kakamega Teachers Co-operative Society. I agree with both Musyoka, J. and Gikonyo, J. that shares in a Co-operative Society do not form part of a deceased’s estate since they are dealt with in accordance with clear provisions of a statute.
The question would be whether there was a nomination in the case of the deceased herein, and if his share was dealt with in accordance with the law. However, that is not an issue before this Court now.”
21. From the foregoing rendition of the law on how shares in a cooperative society should be dealt with upon the demise of a member of the society, it follows that the appellant was required to show that she was either a nominee of the deceased to receive the funds or that there was no such nominee and therefore the funds would go to the personal representative who was not necessarily the administrator of the estate. Even in that case, it appears that the Society has a discretion to determine to which personal representative the funds would go.
22. The appellant in this case filed this suit after the funds had already been given out to the respondent by the Kirinyaga Farmers Sacco Ltd. The appellant did not produce any evidence before the trial court to prove either that she was a nominee or one of the nominees to receive the funds or that there no such nominee and therefore the funds should have been reserved by the Society to await the appointment of a personal representative of the deceased’s estate. As it were, there is evidence, and the respondent admitted as much in her statement of defence, that the funds were paid out to her as a widow of the deceased. The only assumption that can be made, in the absence of evidence to the contrary, is that the Cooperative society paid out the money to the nominee in accordance with the law. The basis of the appellant’s claim to the half share was that she was a widow of the deceased and also a co-administrator of the estate of the deceased. She should have pursued the Sacco to get information on who were the nominees for the funds for the deceased. There was no such evidence the appellant tendered before the trial court and therefore failed to prove her case on a balance of probability as required under section 107 of the Evidence Act.
23. It is apparent that the appellant was mistaken on her claim and therefore failed to make available evidence to enable the court find that she was entitled to the amount claim.
24. The learned trial magistrate was in error on her part to approach the issue of the funds as if they formed part of the estate of the deceased for distribution to the beneficiaries. Although she arrived at the correct, decision that the suit appellant had not proved her case on a balance of probability, the reasons were not correct.
25. Nevertheless, I find that the trial court was correct in dismissing the appellant’s claim albeit for different reasons which I have found were in error.
26. Consequently, the appeal herein is dismissed and this court confirms the judgment of the trial court dismissing the suit but for the reasons stated hereinabove.
27. Considering the relations of the parties herein and the fact that the suit was filed out of a mistake, I order each party to bear her own costs of this appeal and of the trial court seeing that there was no order for costs therein.
28. Orders accordingly.
29. Dated, signed and delivered on the Virtual Platform, Teams this 10th day of July 2025.
ANDAYI W. F.
JUDGE
In the presence of:
Kariuki for Appellant.
No appearance for the Respondent.
Job: Court Assistant.
This decision is uploaded on the Judiciary Case Tracking System for immediate access by the parties upon upload.