(Being an appeal from the judgment and decree by Hon. Benson Ireri, Senior Principal Magistrate, in Makindu MC Succession Cause No. 69 of 2016 delivered on 3 rd day of July, 2023 )
JUDGMENT
Introduction
1. This appeal arises from the judgement of the Chief Magistrate Court at Makindu Succession Cause No.69 of 2016 in the Matter of the Estate of Katiku Mbuva (Deceased) delivered on 3 rd July, 2023.
2. The Respondents’ case was that the deceased had during his lifetime allocated the three portions of land to his three units. Their proposed distribution was that Plot No. 830 should remain with the first unit, Plot No. 1223 should go to the second unit and Plot No. 1224 should go to the third unit.
3. The Appellant disputed that position. His case was that the three properties formed part of one estate and ought to be brought together and distributed in accordance with the Law of Succession Act. He further contended that Plot No. 830 was larger and more valuable because it bordered the highway and was near a market.
4. After receiving viva voce evidence and written submissions the learned trial magistrate accepted the Respondents’ proposed mode of distribution.
5. Dissatisfied with the judgement of the trial court, the Appellant filed the present appeal vide a memorandum of appeal dated the 11 th July, 2024 with the following listed grounds;
1. The Learned Magistrate erred in law and in fact by confirming a proposed mode of distribution by the 1 st & 2 nd Administrators that was construed contrary to Section 40 of CAP 160, Succession Act.
2. The learned magistrate erred in law and in fact by adopting a clan verdict on the subdivision of the land of the late KATIKU MBUVA, which was biased and unfairly favored the 1 st household with only two members by allocating 32.24 acres, whereas the 3 rd household with 9 members was granted only 13.5 Acres. The clan verdict was unjust and prejudiced.
3. The learned magistrate erred in law and in fact by adopting a clan verdict on the sub-division of the Estate of the late KATIKU MBUVA, which was unlawfully relied on an oral will that was not substantially proven.
4. The learned magistrate erred in law and in fact by making a finding that the deceased had made an oral will which was not proven to distribute the parcel as follows: - 1 st household with only 2 members – 32.24 acres, 2 nd Household with seven members – 17-5 acres, and 3 rd Household with 9 members – 13.5 acres.
5. The learned magistrate erred in law and in fact by adopting a proposed mode of distribution by the 1 st and the 2 nd administrators, which failed to consider the lucrative nature of plot 830 awarded to the 1 st household, measuring 32.24 acres and situated closest to the Nairobi – Mombasa Highway.
6. The learned magistrate erred in law and in fact by making a conclusion that the deceased had made a conclusive gift of his land to members of his households as stated here above and when indeed there was no evidence to show any such gift had been made by the deceased either inter vivo or cause mortis and when the requirements of such gifts had not been met.
7. The learned magistrate erred in law and in fact by recognizing/giving a seal of approval to transactions of sale of land made by members of the 1 st household when the said truncations were made without letters of administration to the estate of the deceased and when the same was a nullity before the law.
6. The Appellants prayed for the Court to quash the entire judgement delivered by the trial court on the 3 rd day of July, 2023 and to adopt the mode of distribution proposed by the 3 rd administrator with costs.
7. The present appeal was canvassed by way of written submissions. The Appellants submissions are dated 23 rd January 2026 and the Respondents submissions are dated 7 th February 2026.
Appellants submissions
8. In their written submissions dated the 23 rd day of January, 2026 the Appellant argued that the reason for challenging the mode of distribution was by dint of Section 40 of the Law of Succession Act which governs distribution of estates in polygamous families and required the court to consider each house according to the number of children in a single house while adding the surviving wife as an additional unit to the number of children thereof.
9. He further argued that the adoption of the mode of distribution suggested by the Ambua Clan was against the law and the minutes accepted by Court stating how the Deceased herein had shared his estate among his wives was improper and he relied on the case of Re Estate of M’ngarithi M’Miriti (Deceased) eKLR and the case of Kivuitu vs Kivuitu (1991) eKLR .
10. The Appellant went further to state that apart from the trial court relying on an unproven will, the court failed to consider the value and the location of some of the property and that the alleged allocation of land belonging to the deceased including the boundaries marked with sisals plants and occupation of parcel of land 1223 and 1224 was not evidence of any prior distribution and the estate ought to be sub-divided in tandem with the laws of succession. He submitted that the parcel of land Plot 830 can conveniently be shared to the parties herein as it measures approximately 32.24 acres. He relied on the case of Elijah Kiptarus Chepkwony (Deceased) (2017) eKLR .
11. He argued that there was no gift that was granted to the 1 st house and that the Respondent breached Section 45 of the Law od Succession Act by selling the portions of the suit land to third parties.
Respondent’s submissions
12. In their written submissions dated the 7 th February, 2026, the Respondent argued that prior to the Deceased herein passing on he divided his estate among his three house and that that the boundaries between those households were clearly marked and the said boundaries are still known and recognized on the ground today that being Plots No, 830, 1224 and 1223 which each house occupying their specific households.
13. The Respondent argued that Plot No. 830 is not especially lucrative just because it borders a road being that there is no major town or market close to it and it bordering the highway does not give it any commercial advantage as opposed to parcel number 1223 and 1224 which are near the river bank making them agriculturally productive.
14. The Respondent argued that the estate also has recognized liabilities arising from bona fide purchasers who were identified and verified as beneficiaries by the Ambua Clan and the area chief making the sales a valid liability to the estate of the Deceased.
15. He further argued that trial court was right to uphold the physical boundaries and the allocations already made by the deceased. Those allocations are not a side issue and relied on Section 42 of the Law of Succession Act.
16. It was the Respondent argument that Section 40 of the Law of Succession Act should not be applied blindly and relied on Scholastica Ndululu Sura vs Agnes Nthenya Suva (2019) eKLR and Re Estate of Morogo A. Mugun alias Moroko Mukumu* (2019) Succession Cause No. 113 of 2011 .
Analysis and determination
17. This is a first appeal. My duty as the 1 st appellate court is to re-evaluate and re-examine the evidence in the trial court and come to my own findings and conclusions but in doing so, to have in mind that I neither heard nor saw the witnesses testify.
18. In Gitobu Imanyara & 2 Others vs Attorney General [2016] eKLR the Court of Appeal stated 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. ”
19. The record before me shows that this succession cause has been in court for close to eight years and the deceased died approximately 18 years ago to which I bear this history in mind, together with the overriding objective of just, expeditious and proportionate resolution of disputes under Sections 1A and 1B of the Civil Procedure Act which will applies to these proceedings by virtue of Article 159(2)(d) of the Constitution of Kenya, 2010 .
20. In my view, the main issues for determination in this matter are:
(a) Whether the evidence established that the deceased had during his lifetime subdivided or allocated the land among his three houses?
(b) Whether the appellant’s mode of distribution was consistent with an equitable distribution of the estate.
(c) Whether the learned magistrate misapplied section 42(a) of the Law of Succession Act.
(d) Whether the learned magistrate failed to apply section 40 of the Act, or failed to exercise discretion judicially, in a polygamous intestacy.
(e) Whether the confirmation of the grant complied with the proviso to section 71(2) of the Act and Rule 40(4) of the Probate and Administration Rules .
21. The respondents’ case before the trial court was that the deceased had long before his death subdivided the original block among his three houses. Plot No. 830 was associated with the first house, Plot No. 1223 with the second house, and Plot No. 1224 with the third house.
22. The allocation was said to have been effected in 1993 while the deceased was alive and thereafter each house occupied developed and in some instances sold portions from their own parcel and that the boundaries were marked by sisal plants and remained intact.
23. That case did not rest on the evidence of a single interested beneficiary. It was supported by George Maundu Peter and Andrew Katiku of the first house and by Ndanu Katiku the surviving third wife and an administrator of the estate. It was her testimony that her husband subdivided the land while he was alive and each family had their own land and that in her words nothing was left to subdivide and further she testified that she was satisfied with the arrangement of the deceased.
24. She accepted on cross-examination that the deceased never wrote the allocation anywhere and that Plot No. 830 touches the road, and that the three parcels may have different values. Those concessions did not destroy her evidence. They showed that she was speaking to a family arrangement which existed rather than to a paper transaction.
25. I have re-evaluated that evidence and the absence of a written instrument of mutation or transfer does not in the circumstances of this estate render the allocation irrelevant as land in a settlement scheme occupied for decades by polygamous houses according to known boundaries is commonly held and used long before formal subdivision and registration are completed.
26. I note that an oral allocation acted upon by occupation then development and the planting of boundary plants as well as the dealings of each respective houses with their own portions is evidence of the deceased’s intention and of a lifetime settlement for the benefit of each house. The trial court which saw and heard the witnesses was entitled to prefer that account to the appellant’s denial.
27. The appellant’s contrary narrative was that the family originally lived on Plot No. 830 and was forced by disputes to move to the other parcels and that the deceased could not have divided property which according to James Muindi, a witness was under dispute. That account does not displace the evidence of allocation.
28. I am of the considered view that even if the movement from Plot No. 830 followed family meetings or domestic tension the evidence on record remains that during the deceased’s lifetime the houses were settled on distinct parcels which were marked with boundaries and thereafter treated those parcels as their own noting that the appellant himself lives on Plot No. 1223 where he has built hence his occupation of the second house’s parcel is consistent with the very arrangement he asks this Court to reject.
29. The learned magistrate was therefore entitled to find that the deceased had during his lifetime allocated the land to the three households and that the subsequent occupation and development of Plots Nos. 1223 and 1224 demonstrated that intention. This Court on a fresh appraisal of the record reaches the same conclusion.
30. On the second issue, the Court notes that appellant’s complaint is not a call for a uniform reopening of the entire estate as he lives on Plot No. 1223 and has built there. Further his witness James Muindi was also explicit that Plot No. 830 ought to be shared among the three houses and not the entirety of the deceased properties. The practical result of the case advanced on appeal is that the portion occupied by the first house should be carved up, while the Appellant remains moot on the portions occupied by the second and third houses.
31. That demand cannot stand with the evidence of the lifetime subdivision coupled with the testimony of the third wife and if the deceased allocated each house its own land equity required that all three houses be treated on the same principle as one cannot accept the allocation as against Houses Two and Three and reject it only as against House One.
32. I am of the considered view that if the entire estate were truly to be thrown into a common pot and divided afresh then the inquiry would have to extend to Plots Nos. 1223 and 1224 as well including portions already occupied and developed and on the evidence produced before the trial court partly sold.
33. The appellant did not pursue that course with any consistency. He sought the advantage of disturbing the first house’s land without submitting the land of his own house, or of the third house, to the same process and this does not advance impartial distribution of the deceased Estate as a whole but an indication of bad faith hence the learned magistrate cannot be faulted for declining to sanction a redistribution so framed.
34. On the 3 rd issue, Section 42(a) of the Law of Succession Act provides that where an intestate has during his lifetime paid, given or settled any property to or for the benefit of a child, grandchild or house, that property shall be taken into account in determining the share of the net intestate estate finally accruing to the child, grandchild or house.
35. It is my considered view that the said Section does not require that every family allocation be perfected by a registered transfer before it can be recognized nor does it provide that an informal allocation automatically removes land from the estate in every case as its purpose is to prevent a child, grandchild or house from receiving a double benefit and to ensure that the deceased’s lifetime arrangements are brought into the final distribution. Further it is also my considered view that occupation alone does not conclusively establish the legal character of an alleged allocation.
36. It is therefore trite that the court upon looking at the evidence on record on the evidence whether there was a gift or a settlement or even a family arrangement or any other form of allocation for the benefit of a house must then determine its consequences under Sections 40 and 42 of the Law of Succession Act .
37. In the present case the evidence tabled before the trial court went beyond bare occupation as from the records there was a demarcation in the deceased’s lifetime, sisal boundaries were placed, the settlement of each house on a distinct parcel, the development of those parcels and lastly dealings by the respective houses in respect to their own land which was confirmed by the 3 rd wife.
38. Going further, the trial court in its judgement cited Section 42(a) of the Law of Succession Act and treated the lifetime allocation as a matter to be given effect in the confirmation of the grant and that the accounting exercise required by section 42 was in substance performed by leaving each house with the land already settled upon it rather than by adding the three parcels together and then subtracting hypothetical lifetime gifts. This Court is not persuaded that the magistrate treated section 42 as a licence to abandon the statute as it was used to give weight to a lifetime settlement for the benefit of the houses.
39. The deceased having been polygamous and having died intestate, the starting point is Section 40 of the Act which provides a general framework for the distribution of the net intestate estate among the houses according to the number of children in each house, counting a surviving widow as an additional unit. The Court of Appeal has held that a rigid or blind application of section 40 may produce absurdity, and that the court retains a discretion to take into account the factual circumstances of the particular case in order to achieve a fair and equitable distribution.
40. Reliance is placed in the case of Rono vs Rono & Another [2005] eKLR and Scolastica Ndululu Suva vs Agnes Nthenya Suva [2019] eKLR . The same principle appears in Douglas Njuguna Muigai vs John Bosco Maina Kariuki & Another [2014] eKLR . Those authorities do not abolish section 40 but only require that discretion be exercised judicially on a sound legal and factual basis.
41. The learned magistrate recited those authorities and declined to apply Section 40 blindly and adopted the mode dated 6 th July 2019 as basing on the evidence it gave effect to the deceased’s lifetime allocation and to long occupation and to the wishes of the overwhelming majority of the family. That was a legitimate exercise of discretion.
42. I am of the considered view that the circumstances which a court may take into account under the Rono line of authority include the deceased’s intention as well as the manner in which the family has lived on the land, any developments on particular portions and the need to avoid a redistribution that would visit unnecessary hardship on persons in occupation.
43. This court notes that the appellant’s own proposed remedy was not the statutory result of section 40 as at one point he opined that the parcel of land be shared equally among the 3 units of the houses whereas Section 40 does not require equal acreage for every individual and I proceed to reject the said approach.
44. On the fifth issue, the learned magistrate cited the proviso to section 71(2) of the Law of Succession Act and Rule 40(4) of the Probate Rules and held that those provisions had been complied with as there had been full disclosure and also the Chief’s report identified buyers and lastly the matter of the shares allotted to the persons disclosed as beneficiaries was not disputed by any other beneficiaries apart from the objector.
45. Even though it is my considered view that a confirmed grant in intestacy must specify the persons beneficially entitled and their respective shares even reference to a proposed mode of distribution is capable of satisfying that command where the mode itself identifies the houses, the parcels and the beneficiaries to get portions thereof.
46. I therefore hold that the statutory purpose of Section 71(2) was met as the persons entitled were the members of the three houses of the deceased taking the parcels already associated with those houses.
Final Disposition
a. As a result of the foregoing, the appeal herein stands dismissed.
b. The judgment of the Senior Principal Magistrate’s Court at Makindu delivered on 3 rd July 2023 in Makindu SPM Succession Cause No. 69 of 2016 and the confirmation of the grant on the mode of distribution dated 6 th July 2019 are upheld.
c. The parties shall give effect to the confirmed grant as the lifetime allocation of the three houses as confirmed by the trial court stands.
d. This being a family dispute each party shall bear their own costs of the appeal .
Orders accordingly.
Dated, signed and delivered virtually via Microsoft Teams this 9 th Day of September 2026.
SUCC APPEAL NO. E001 OF 2024 MUSYOKA KATIKU VS GEORGE KATIKU JUDGMENT Pg. 12
JUDGMENT
Introduction
1. This appeal arises from the judgement of the Chief Magistrate Court at Makindu Succession Cause No.69 of 2016 in the Matter of the Estate of Katiku Mbuva (Deceased) delivered on 3 rd July, 2023.
2. The Respondents’ case was that the deceased had during his lifetime allocated the three portions of land to his three units. Their proposed distribution was that Plot No. 830 should remain with the first unit, Plot No. 1223 should go to the second unit and Plot No. 1224 should go to the third unit.
3. The Appellant disputed that position. His case was that the three properties formed part of one estate and ought to be brought together and distributed in accordance with the Law of Succession Act. He further contended that Plot No. 830 was larger and more valuable because it bordered the highway and was near a market.
4. After receiving viva voce evidence and written submissions the learned trial magistrate accepted the Respondents’ proposed mode of distribution.
5. Dissatisfied with the judgement of the trial court, the Appellant filed the present appeal vide a memorandum of appeal dated the 11 th July, 2024 with the following listed grounds;
1. The Learned Magistrate erred in law and in fact by confirming a proposed mode of distribution by the 1 st & 2 nd Administrators that was construed contrary to Section 40 of CAP 160, Succession Act.
2. The learned magistrate erred in law and in fact by adopting a clan verdict on the subdivision of the land of the late KATIKU MBUVA, which was biased and unfairly favored the 1 st household with only two members by allocating 32.24 acres, whereas the 3 rd household with 9 members was granted only 13.5 Acres. The clan verdict was unjust and prejudiced.
3. The learned magistrate erred in law and in fact by adopting a clan verdict on the sub-division of the Estate of the late KATIKU MBUVA, which was unlawfully relied on an oral will that was not substantially proven.
4. The learned magistrate erred in law and in fact by making a finding that the deceased had made an oral will which was not proven to distribute the parcel as follows: - 1 st household with only 2 members – 32.24 acres, 2 nd Household with seven members – 17-5 acres, and 3 rd Household with 9 members – 13.5 acres.
5. The learned magistrate erred in law and in fact by adopting a proposed mode of distribution by the 1 st and the 2 nd administrators, which failed to consider the lucrative nature of plot 830 awarded to the 1 st household, measuring 32.24 acres and situated closest to the Nairobi – Mombasa Highway.
6. The learned magistrate erred in law and in fact by making a conclusion that the deceased had made a conclusive gift of his land to members of his households as stated here above and when indeed there was no evidence to show any such gift had been made by the deceased either inter vivo or cause mortis and when the requirements of such gifts had not been met.
7. The learned magistrate erred in law and in fact by recognizing/giving a seal of approval to transactions of sale of land made by members of the 1 st household when the said truncations were made without letters of administration to the estate of the deceased and when the same was a nullity before the law.
6. The Appellants prayed for the Court to quash the entire judgement delivered by the trial court on the 3 rd day of July, 2023 and to adopt the mode of distribution proposed by the 3 rd administrator with costs.
7. The present appeal was canvassed by way of written submissions. The Appellants submissions are dated 23 rd January 2026 and the Respondents submissions are dated 7 th February 2026.
Appellants submissions
8. In their written submissions dated the 23 rd day of January, 2026 the Appellant argued that the reason for challenging the mode of distribution was by dint of Section 40 of the Law of Succession Act which governs distribution of estates in polygamous families and required the court to consider each house according to the number of children in a single house while adding the surviving wife as an additional unit to the number of children thereof.
9. He further argued that the adoption of the mode of distribution suggested by the Ambua Clan was against the law and the minutes accepted by Court stating how the Deceased herein had shared his estate among his wives was improper and he relied on the case of Re Estate of M’ngarithi M’Miriti (Deceased) eKLR and the case of Kivuitu vs Kivuitu (1991) eKLR .
10. The Appellant went further to state that apart from the trial court relying on an unproven will, the court failed to consider the value and the location of some of the property and that the alleged allocation of land belonging to the deceased including the boundaries marked with sisals plants and occupation of parcel of land 1223 and 1224 was not evidence of any prior distribution and the estate ought to be sub-divided in tandem with the laws of succession. He submitted that the parcel of land Plot 830 can conveniently be shared to the parties herein as it measures approximately 32.24 acres. He relied on the case of Elijah Kiptarus Chepkwony (Deceased) (2017) eKLR .
11. He argued that there was no gift that was granted to the 1 st house and that the Respondent breached Section 45 of the Law od Succession Act by selling the portions of the suit land to third parties.
Respondent’s submissions
12. In their written submissions dated the 7 th February, 2026, the Respondent argued that prior to the Deceased herein passing on he divided his estate among his three house and that that the boundaries between those households were clearly marked and the said boundaries are still known and recognized on the ground today that being Plots No, 830, 1224 and 1223 which each house occupying their specific households.
13. The Respondent argued that Plot No. 830 is not especially lucrative just because it borders a road being that there is no major town or market close to it and it bordering the highway does not give it any commercial advantage as opposed to parcel number 1223 and 1224 which are near the river bank making them agriculturally productive.
14. The Respondent argued that the estate also has recognized liabilities arising from bona fide purchasers who were identified and verified as beneficiaries by the Ambua Clan and the area chief making the sales a valid liability to the estate of the Deceased.
15. He further argued that trial court was right to uphold the physical boundaries and the allocations already made by the deceased. Those allocations are not a side issue and relied on Section 42 of the Law of Succession Act.
16. It was the Respondent argument that Section 40 of the Law of Succession Act should not be applied blindly and relied on Scholastica Ndululu Sura vs Agnes Nthenya Suva (2019) eKLR and Re Estate of Morogo A. Mugun alias Moroko Mukumu* (2019) Succession Cause No. 113 of 2011 .
Analysis and determination
17. This is a first appeal. My duty as the 1 st appellate court is to re-evaluate and re-examine the evidence in the trial court and come to my own findings and conclusions but in doing so, to have in mind that I neither heard nor saw the witnesses testify.
18. In Gitobu Imanyara & 2 Others vs Attorney General [2016] eKLR the Court of Appeal stated 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. ”
19. The record before me shows that this succession cause has been in court for close to eight years and the deceased died approximately 18 years ago to which I bear this history in mind, together with the overriding objective of just, expeditious and proportionate resolution of disputes under Sections 1A and 1B of the Civil Procedure Act which will applies to these proceedings by virtue of Article 159(2)(d) of the Constitution of Kenya, 2010 .
20. In my view, the main issues for determination in this matter are:
(a) Whether the evidence established that the deceased had during his lifetime subdivided or allocated the land among his three houses?
(b) Whether the appellant’s mode of distribution was consistent with an equitable distribution of the estate.
(c) Whether the learned magistrate misapplied section 42(a) of the Law of Succession Act.
(d) Whether the learned magistrate failed to apply section 40 of the Act, or failed to exercise discretion judicially, in a polygamous intestacy.
(e) Whether the confirmation of the grant complied with the proviso to section 71(2) of the Act and Rule 40(4) of the Probate and Administration Rules .
21. The respondents’ case before the trial court was that the deceased had long before his death subdivided the original block among his three houses. Plot No. 830 was associated with the first house, Plot No. 1223 with the second house, and Plot No. 1224 with the third house.
22. The allocation was said to have been effected in 1993 while the deceased was alive and thereafter each house occupied developed and in some instances sold portions from their own parcel and that the boundaries were marked by sisal plants and remained intact.
23. That case did not rest on the evidence of a single interested beneficiary. It was supported by George Maundu Peter and Andrew Katiku of the first house and by Ndanu Katiku the surviving third wife and an administrator of the estate. It was her testimony that her husband subdivided the land while he was alive and each family had their own land and that in her words nothing was left to subdivide and further she testified that she was satisfied with the arrangement of the deceased.
24. She accepted on cross-examination that the deceased never wrote the allocation anywhere and that Plot No. 830 touches the road, and that the three parcels may have different values. Those concessions did not destroy her evidence. They showed that she was speaking to a family arrangement which existed rather than to a paper transaction.
25. I have re-evaluated that evidence and the absence of a written instrument of mutation or transfer does not in the circumstances of this estate render the allocation irrelevant as land in a settlement scheme occupied for decades by polygamous houses according to known boundaries is commonly held and used long before formal subdivision and registration are completed.
26. I note that an oral allocation acted upon by occupation then development and the planting of boundary plants as well as the dealings of each respective houses with their own portions is evidence of the deceased’s intention and of a lifetime settlement for the benefit of each house. The trial court which saw and heard the witnesses was entitled to prefer that account to the appellant’s denial.
27. The appellant’s contrary narrative was that the family originally lived on Plot No. 830 and was forced by disputes to move to the other parcels and that the deceased could not have divided property which according to James Muindi, a witness was under dispute. That account does not displace the evidence of allocation.
28. I am of the considered view that even if the movement from Plot No. 830 followed family meetings or domestic tension the evidence on record remains that during the deceased’s lifetime the houses were settled on distinct parcels which were marked with boundaries and thereafter treated those parcels as their own noting that the appellant himself lives on Plot No. 1223 where he has built hence his occupation of the second house’s parcel is consistent with the very arrangement he asks this Court to reject.
29. The learned magistrate was therefore entitled to find that the deceased had during his lifetime allocated the land to the three households and that the subsequent occupation and development of Plots Nos. 1223 and 1224 demonstrated that intention. This Court on a fresh appraisal of the record reaches the same conclusion.
30. On the second issue, the Court notes that appellant’s complaint is not a call for a uniform reopening of the entire estate as he lives on Plot No. 1223 and has built there. Further his witness James Muindi was also explicit that Plot No. 830 ought to be shared among the three houses and not the entirety of the deceased properties. The practical result of the case advanced on appeal is that the portion occupied by the first house should be carved up, while the Appellant remains moot on the portions occupied by the second and third houses.
31. That demand cannot stand with the evidence of the lifetime subdivision coupled with the testimony of the third wife and if the deceased allocated each house its own land equity required that all three houses be treated on the same principle as one cannot accept the allocation as against Houses Two and Three and reject it only as against House One.
32. I am of the considered view that if the entire estate were truly to be thrown into a common pot and divided afresh then the inquiry would have to extend to Plots Nos. 1223 and 1224 as well including portions already occupied and developed and on the evidence produced before the trial court partly sold.
33. The appellant did not pursue that course with any consistency. He sought the advantage of disturbing the first house’s land without submitting the land of his own house, or of the third house, to the same process and this does not advance impartial distribution of the deceased Estate as a whole but an indication of bad faith hence the learned magistrate cannot be faulted for declining to sanction a redistribution so framed.
34. On the 3 rd issue, Section 42(a) of the Law of Succession Act provides that where an intestate has during his lifetime paid, given or settled any property to or for the benefit of a child, grandchild or house, that property shall be taken into account in determining the share of the net intestate estate finally accruing to the child, grandchild or house.
35. It is my considered view that the said Section does not require that every family allocation be perfected by a registered transfer before it can be recognized nor does it provide that an informal allocation automatically removes land from the estate in every case as its purpose is to prevent a child, grandchild or house from receiving a double benefit and to ensure that the deceased’s lifetime arrangements are brought into the final distribution. Further it is also my considered view that occupation alone does not conclusively establish the legal character of an alleged allocation.
36. It is therefore trite that the court upon looking at the evidence on record on the evidence whether there was a gift or a settlement or even a family arrangement or any other form of allocation for the benefit of a house must then determine its consequences under Sections 40 and 42 of the Law of Succession Act .
37. In the present case the evidence tabled before the trial court went beyond bare occupation as from the records there was a demarcation in the deceased’s lifetime, sisal boundaries were placed, the settlement of each house on a distinct parcel, the development of those parcels and lastly dealings by the respective houses in respect to their own land which was confirmed by the 3 rd wife.
38. Going further, the trial court in its judgement cited Section 42(a) of the Law of Succession Act and treated the lifetime allocation as a matter to be given effect in the confirmation of the grant and that the accounting exercise required by section 42 was in substance performed by leaving each house with the land already settled upon it rather than by adding the three parcels together and then subtracting hypothetical lifetime gifts. This Court is not persuaded that the magistrate treated section 42 as a licence to abandon the statute as it was used to give weight to a lifetime settlement for the benefit of the houses.
39. The deceased having been polygamous and having died intestate, the starting point is Section 40 of the Act which provides a general framework for the distribution of the net intestate estate among the houses according to the number of children in each house, counting a surviving widow as an additional unit. The Court of Appeal has held that a rigid or blind application of section 40 may produce absurdity, and that the court retains a discretion to take into account the factual circumstances of the particular case in order to achieve a fair and equitable distribution.
40. Reliance is placed in the case of Rono vs Rono & Another [2005] eKLR and Scolastica Ndululu Suva vs Agnes Nthenya Suva [2019] eKLR . The same principle appears in Douglas Njuguna Muigai vs John Bosco Maina Kariuki & Another [2014] eKLR . Those authorities do not abolish section 40 but only require that discretion be exercised judicially on a sound legal and factual basis.
41. The learned magistrate recited those authorities and declined to apply Section 40 blindly and adopted the mode dated 6 th July 2019 as basing on the evidence it gave effect to the deceased’s lifetime allocation and to long occupation and to the wishes of the overwhelming majority of the family. That was a legitimate exercise of discretion.
42. I am of the considered view that the circumstances which a court may take into account under the Rono line of authority include the deceased’s intention as well as the manner in which the family has lived on the land, any developments on particular portions and the need to avoid a redistribution that would visit unnecessary hardship on persons in occupation.
43. This court notes that the appellant’s own proposed remedy was not the statutory result of section 40 as at one point he opined that the parcel of land be shared equally among the 3 units of the houses whereas Section 40 does not require equal acreage for every individual and I proceed to reject the said approach.
44. On the fifth issue, the learned magistrate cited the proviso to section 71(2) of the Law of Succession Act and Rule 40(4) of the Probate Rules and held that those provisions had been complied with as there had been full disclosure and also the Chief’s report identified buyers and lastly the matter of the shares allotted to the persons disclosed as beneficiaries was not disputed by any other beneficiaries apart from the objector.
45. Even though it is my considered view that a confirmed grant in intestacy must specify the persons beneficially entitled and their respective shares even reference to a proposed mode of distribution is capable of satisfying that command where the mode itself identifies the houses, the parcels and the beneficiaries to get portions thereof.
46. I therefore hold that the statutory purpose of Section 71(2) was met as the persons entitled were the members of the three houses of the deceased taking the parcels already associated with those houses.
Final Disposition
a. As a result of the foregoing, the appeal herein stands dismissed.
b. The judgment of the Senior Principal Magistrate’s Court at Makindu delivered on 3 rd July 2023 in Makindu SPM Succession Cause No. 69 of 2016 and the confirmation of the grant on the mode of distribution dated 6 th July 2019 are upheld.
c. The parties shall give effect to the confirmed grant as the lifetime allocation of the three houses as confirmed by the trial court stands.
d. This being a family dispute each party shall bear their own costs of the appeal .
Orders accordingly.
Dated, signed and delivered virtually via Microsoft Teams this 9 th Day of September 2026.
SUCC APPEAL NO. E001 OF 2024 MUSYOKA KATIKU VS GEORGE KATIKU JUDGMENT Pg. 12