Being an appeal against the judgment and decree of Hon. A. N. Makau, Senior Resident Magistrate at Gichugu in Succession Cause No. 59 of 2017 delivered on 7th June 2017.
Introduction
1. Jephitha Njue Ernest and David Kingangi have been seeking to be recognized as children of Ernest Ndambiri King’ang’i for the longest time. In a judgment delivered on 7th June 2017, the trial court recognized them as children of the deceased and ordered that they be included in the distribution of the estate of the deceased. The appellant who was a wife of the deceased at the time of his demise is not satisfied with that decision. She maintained through the succession cause before the trial court and now in the present appeal that the two were not the deceased’s children and therefore are not entitled to inherit his estate.
2. The story leading to this conundrum looks almost straightforward but due to the fallibility of human beings, it has been complicated from beginning to now. The learned trial magistrate remarked after what she believed to be a careful analysis of the obtaining circumstances that her decision would bring to a close the long-protracted inheritance issues between the petitioner (now appellant) and protestors (now respondents) since it had remained in the courts since 1996 shortly after the demise of Ernest. It has not and the dispute continues now before this court on appeal.
Grounds of appeal
3. The memorandum of appeal amended on 28th August 2024 lists 21 grounds of appeal, some with sub-paragraphs. They can be summarized as follows.
i. Grounds 1, 3, 5, 9, 14: That the learned trial magistrate erred in law and in fact in failing to critically and exhaustively analyze the evidence tendered by the appellant and her witnesses, showing open bias against the appellant’s evidence and improperly analyzing the evidence of the respondents in isolation and thereby making the judgment against the weight of the evidence tendered by the appellant and her witnesses.
ii. Grounds 2, 8, 19, 20: That the learned trial magistrate erred in law and in fact by failing to properly apply the Law of Succession Act to the facts of the case in distributing the deceased’s estate by awarding the estate to the deceased’s beneficiaries and then to the protestors which in any case was disproportionate to their shares, if they were proper beneficiaries, which however is denied.
iii. Grounds 4, 7, 18: That the learned trial magistrate erred in law and in fact by failing to hold that the deceased died testate as per his last will dated 10th of June 1994.
iv. Grounds 6, 10, 11, 12, 13, 15, that the learned trial magistrate erred in law and in fact by irregularly introducing and relying on “evidence” that was not otherwise produced and neglecting to consider the evidence adduced by the appellant in that she disregarded the chief’s letter dated 5th November 2016 and instead relied on the one dated May 2016 in favour of the respondents yet the maker of the same had not been called to produce it and no party had produced it thereby causing herself to act as a witness for the respondents/protestors.
v. Grounds 16, 17. That the learned trial magistrate failed to ascertain the truthfulness of the assertion that the mother of the respondent/protestors had sired other children after she had separated with the deceased such as the 1st protestor who was born in 1966 and consequently, there was no evidence that the protestors were the children of the deceased
vi. Ground 21. The learned trial magistrate erred by leaving out a beneficiary of the estate namely James Muriithi who is a child of the deceased.
Submissions
4. Both parties filed submissions based on the initial memorandum of appeal dated 5th July 2017 yet the amended memorandum of appeal was allowed by the court on 29th July 2024. I will proceed on the amended memorandum of appeal with the submissions as filed.
5. The appellant submits that the deceased’s estate should be distributed in accordance with his last known will dated 10th June 1994. The appellant has raised nine issues for determination. Like the grounds of appeal, some of these grounds are for consolidation because they are basically the same issue repeated. The issues are consolidated as follows:
6. Issue numbers 1, 2, 3 and 9 which are:
i. Whether the trial magistrate erred in law and fact by making a judgment against the weight of the evidence presented by the appellant and her witnesses.
ii. Whether the trial court failed to adhere to the provisions of the Law of Succession Act (Cap. 160) Laws of Kenya in distributing the deceased’s estate.
iii. Whether the learned trial magistrate erred by not recognizing that the deceased died testate and thus should have distributed the estate according to the will dated 10th June 1994.
iv. Whether the trial court’s decision to award the estate to the respondents as if the deceased died intestate constituted a miscarriage of justice.
7. These issues relate to the appellant’s contention that the deceased died testate and so the trial magistrate erred by distributing the estate as if he had died intestate.
8. The appellant submits on these issues that she tendered evidence that the deceased had left behind a will which the appellant filed in court on 16th December 1998, but the trial court disregarded and dismissed her evidence and relied on the unsubstantiated claims of the respondent thereby proceeding as if the deceased died intestate.
9. The appellant submits further that in accordance with section 5 of the LSA, the will should have prevailed over the intestate succession and therefore the trial court erred in applying section 40 of the LSA which governs intestate succession to the distribution of the estate. The appellant supports this submission with the case of In re Estate of Lusila Wairu Waweru (Deceased) [2020] KEHC 4731 (KLR) for the holding that a testator’s will should be respected and that there exist substantive complexity for the court to vary or set aside the will made by a testator.
10. The case of In re Estate of Gurdip Kaur Sagoo [2021] KEHC 6634 (KLR) is also cited for the court’s holding that:
“The Court’s jurisdiction to interfere with the valid will of a testator should be cautiously and sparingly exercised. Indeed, a testator must be allowed to exercise his unfettered testamentary freedom provided that his disposition as regards dependents is in the eyes of the Court, reasonable, taking into account all circumstances.”
11. In the above case, the High Court’s final decision was that it declined to interfere with the will of the deceased and instead to honour the wishes of the deceased as expressed in her will on grounds that Harvinder, who was the applicant seeking reasonable provision for herself as a dependent out of the net estate of the deceased, had received advancement from the deceased during her lifetime and further that she was not destitute. This decision was however overturned by the Court of Appeal in Dadhialla v Chaudri (Sued as Executor of the Estate of Gurdip Kaur Sagoo) & 2 others [2025] KECA 728 (KLR) on grounds that there was insufficient evidence to prove that the appellant, Harvinder was adequately provided for previously.
12. Issues Nos 4, 6 and 7:
i. Whether the trial magistrate relied on unsubstantiated facts and failed to critically analyze the evidence provided by the appellant leading to an erroneous judgment.
ii. Whether the trial magistrate improperly introduced evidence such as the chief’s letters without calling the makers for cross-examination.
iii. Whether the trial magistrate erred by awarding land to the respondents in a manner that was disproportionate and potentially unjust, given the alleged absence of evidence that they were beneficiaries.
13. These issues relate to the position by the appellant that the protestors/respondents herein had not been proved to be sons of the deceased and therefore not dependents so as to benefit from his estate The appellant submits on these issues that the claims by the respondents that they were sons of the deceased were not verified as the evidence relied upon by the trial court was witness testimonies and uncorroborated documents such as national identity cards that were not substantiated with proof of paternity and letters from local chiefs dated 15th June 1987 which identified the deceased’s dependents were produced by the protestors in examination-in-chief without calling the authors for cross-examination contrary to sections 68 as read with section 146 of the Evidence Act (Cap. 80) Laws of Kenya. Further that the trial court did not consider whether the mother of the respondents was ever married to the deceased and if indeed all requirements of Kikuyu marriage were met and whether there was a divorce and what was the case number.
14. Issue Nos 5 and 8 are as follows:
i. Whether the trial magistrate demonstrated open bias against the appellant by making unwarranted conclusions about her credibility.
ii. Whether the trial magistrate failed to consider the appellant’s entire evidence while improperly analyzing the respondent’s evidence in isolation.
15. These are issues where the appellant submits that the trial court was biased in its assessment of the evidence tendered in favour of the respondents. It is submitted that the comments by the learned magistrate that the appellant pretended not to know that the deceased was married to another woman, the respondents’ mother before and the appellant never welcomed the respondents to her home were without basis and therefore biased against the appellant and not objective in view of the evidence tendered.
16. The final issue number 10 is whether the exclusion of a potential beneficiary James Muriithi from the distribution of the estate by the trial court was an error by the trial magistrate.
17. It is submitted on this issue that by excluding James Muriithi, a child of the deceased without examining his status as a legitimate heir, the trial court’s decision was incomplete and unjust.
18. The issues as outlined above cover all the grounds of appeal set out in the memorandum of appeal as raised by the appellant.
19. The respondents on their part support the trial court’s decision, maintaining that the learned trial magistrate properly analyzed the evidence adduced and reached the correct decision. They therefore ask this court to uphold it.
20. The respondents submit that the appellant filed the petition for letters of administration intestate and only filed the alleged will after the respondents filed the protest. Even then, the trial court found that the same did not satisfy the requirements of a valid will and therefore determined that the deceased died intestate. That the trial court applied section 40 of the LSA to the distribution of the estate because the deceased was polygamous.
21. The respondents submit that the trial court perused files in other cases being Civil Suit No. 408 of 1966 inside of which was found a file for Civil Suit No. 46 (or 48) of 1983 from which it determined that the protestors were children of the deceased.
22. The respondents support their submissions with the decision in the case of In Re Estate of John Musambayi Katumanga – (Deceased) [2014] KEHC 7506 (KLR).
Duty of appellate court on a first appeal
23. 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)”.
24. I am well guided by these principles in the consideration and determination of this appeal.
25. I have considered the grounds of appeal, the submissions by the parties in this appeal and reviewed the evidence tendered before the trial court and the judgment of the trial court. The issue for determination is whether or not the learned trial magistrate was correct in allowing the protest and in her distribution of the deceased’s estate.
Background to the case
26. As stated at the beginning of this judgment, this case revolves around the issue of whether or not the respondents/protestors before the trial court proved that they were children of the deceased and therefore dependents under section 29 of the LSA and therefore entitled to a share of his estate. That issue then ties in the issue of the validity of the will dated 10th June 1994 because in the will, the deceased did not make any provision for the respondents. The evidence before the trial court on these two issues has to be considered.
27. The deceased herein Ernest Ndambiri King’ang’a (as per the certificate of death No. 291858 on record dated 8th May 1996) died on 17th March 1996 aged 69 years.
28. On 17th October 1996, the appellant, Nancy Rwamba Ndambiri as wife of the deceased Ernest Ndambiri Kingangi (as per the petition), took out a petition for letters of administration intestate (emphasis by underlining and bold mine) in the Senior Principal Magistrate’s Court at Embu Succession Cause No. 195 of 1996. In the affidavit in support of petition for letters of administration intestate she deposed that the deceased died intestate and left the following surviving him:
i. Nancy Rwamba Ndambiri (wife).
ii. James Muriithi (son)
iii. Lydia Kuthii
iv. Abisagi Muthoni.
v. John Muchira.
vi. Manasses Njeru.
vii. Irene Wanja
viii. Muriuki Ernest.
29. She also deposed that the deceased assets were land parcel No. Ngariama/Thirikwa/236.
30. On 30th October 1996, a notice by the District Registrar, Embu was issued that a petition for grant of letters of administration Intestate (emphasis by underlining and bold mine) to the estate of the deceased had been filed by Nancy Rwamba Ndambiri, in her capacity as wife of the deceased, in the Senior Principal Magistrate’s Court registry.
31. At the same time on 30th October 1916, there was issued in the same cause a notice by the same District Registrar that an application for probate of the last will (or letters of administration of the estate) of the deceased Ernest Ndambiri King’ang’a had been made by the same Nancy Rwamba Ndambiri
32. On 13th November 1996 Jefitha Njue Ndambiri, the 1st respondent herein, filed vide Form No. 76, Objection to Making of a Grant in the said succession cause to the petition on grounds that he was a son of the deceased and his mother was the 1st wife and that the petitioner did not inform him and his brothers about the succession cause. Contemporaneously, he filed Form No. 25 by way of answer to the petition for grant of representation to the estate of the deceased and prayed that the application for grant by the petitioner should be dismissed for reasons that the petitioner did not inform him and his brothers and she omitted their names and that they should also get a share of the parcel of land. He also filed Form No. 84 being a notice of a petition for a grant of representation to the estate of the deceased on grounds that the petitioner did not want them to get any share out of the deceased’s land parcel No. Ngariama/Thirikwa/236 and that they wanted a share of the same. He named the following persons as those left out in the succession cause filed by the appellant:
i. David King’ang’i
ii. Jefitha Njue
iii. Josphat Njiru
iv. Nancy Wanjira
v. Mary Muthoni
33. On 6th April 1997, the parties attended court and upon hearing them, the court issued a Grant of Letters of Administration Intestate of the estate of the deceased to the petitioner Nancy Rwamba Ndambiri as the widow of the deceased with directions that the objector Jephitha to file protest after the petitioner had applied for confirmation of grant and that the petitioner to serve a copy of the application for confirmation of grant upon the objector.
34. On 10th March 1998, the petitioner filed a chamber summons dated 5th February 1998 praying that the court issues her with temporary letters of administration. She deposed in her affidavit sworn on 6th March 1996 that the succession cause had already been gazetted vide Notice No. 694 of 13th February 1998.
35. On 3rd November 1998, the petitioner filed summons for confirmation of grant dated 3rd November 1998 (see the difference in years). In her supporting affidavit sworn on 31st October 1998 the petitioner deposed that the deceased was survived by his wife Nancy Rwamba Ndambiri and the following:
i. James Muriithi Ernest - adult son
ii. Lydia Kuthii Ernest - adult daughter (unmarried)
iii. John Muchira Ernest - adult son
iv. Abisagi Muthoni Ernest - adult daughter (unmarried)
v. Irene Wanja Ernest - daughter – minor
vi. Manasse Gichovi Ernest - son - minor
vii. Justine Muriuki Ernest. - son - minor
36. She then deposed that the identification and shares of all persons beneficially entitled to the said estate had been ascertained and determined as follows:
i. Nancy Rwamba Ndambiri to get 0.79 Ha
ii. Lydia Kuthii Ernest to get 0.57 Ha.
iii. John Muchira Ernest to get 0.57 Ha.
iv. Abisagi Muthoni Ernest to get 0.57 Ha.
v. Irene Wanja Ernest to get 0.57 Ha.
vi. Manasse Gichovi Ernest to get 0.57 Ha.
vii. Justine Muriuki Ernest. to get 0.57 Ha.
37. It is immediately discernible from this proposed distribution of the estate of the deceased that James Muriithi Ernest, who was indicated in the supporting affidavit to the summons for confirmation of grant, as an adult son and survivor of the deceased is not among the beneficiaries to whom the estate was to be shared. Therefore, the ground of appeal alleging that the trial court was the one that erred in excluding him as a potential beneficiary cannot be valid. In actual fact James Muriithi Ernest was not left out even as his name was not indicated above because the trial court simply said that the share of the estate that was to go to their mother’s house was to be shared equally among the eight beneficiaries, who were the mother, the appellant herein, and her seven children who included James Mureithi Ernest. That ground of appeal therefore fails this early in the determination of the appeal.
38. On 6th November 1998, Jephitha Njue Ndambiri filed a caveat dated 29th October 1998 against distribution of the estate without notice to him.
39. On 12th November 1999, one year after the summons for confirmation of grant had been filed, when the matter came up in court, Mr. Githinji, learned counsel for the petitioner informed the court that after filing the cause they had learnt that the deceased had drafted a will and so they had to comply with Form 80. The matter was thus stood over generally.
40. On 24th May 2000, one and a half years later, the matter was again stood over generally on the application of counsel that they wished the matter heard in the High Court there being a new discovery of a will.
41. The matter was eventually transferred and registered in the High Court at Embu as Succession Cause No. 337 of 2002. A hearing was conducted on 18th October 2007 when two witnesses, the protestors, were heard. Their advocate then applied for adjournment to call other witnesses but due to various reasons no further hearing was heard before the High Court until 1st March 2017 when it appears that the High Court on its own motion directed that the file be transferred to the Principal Magistrate’s Court at Kianyaga/Gichugu for hearing and determination.
42. The case started de novo before Hon. A. N. Makau, SRM who then heard the matter to conclusion and delivered the judgment, the subject of the appeal herein.
Case before the trial court
43. The case before the trial court was heard on 10th May 2017. The hearing started with the protestors’ case where both of them Jefitha Njue Ndambiri, PW 1 and David Kingangi Ernest Ndambiri PW 2, testified and called one witness PW 3, Peter Kingangi Njeru.
44. The petitioner’s case was then heard with the petitioner PW 1, Nancy Rwamba testifying and also called two other witnesses, DW 2, Stephen Mburu Kiranga, DW 3, Mutura Njeru.
45. The protestors’ case was that they were the sons of the deceased with his first wife Jane Njoki, now deceased. That the appellant herein Nancy Rwamba Ndambiri was their step-mother but she had refused to recognize them as sons of the deceased nd had failed to involve them in the succession cause and thus their protest. That they need a share of the deceased’s estate as his children.
46. In cross-examination he produced his national identity card and said he did not have a certificate of birth. He said that he knew both his parents and they brought him up. They lived on their land parcel No. 236.
47. PW 1 said further in cross-examination that he knew very well that his parents had a case in court about divorce in 1966, the year that he was born. His mother was the one who had sued his father. According to him they had divorced. He however said that he did not know about another case between his parents filed in 1983. He named his siblings as Nancy Wanjira, Nancy (Mary) Muthoni, Jedidah Wairimu and David Kingangi. Here he left out Josephat Njiru who had appeared in his initial filings in court when he named the persons who had allegedly been left out by the appellant when she filed the succession cause. He instead included Jedidah Wairimu who was not in the initial list.
48. He said that they had left the land where they were living with their parents a long time ago when his mother was alive.
49. PW 2, was David Kingangi Ernest Ndambiri. He testified that they started having fights with their step-mother, the appellant herein, some 20-30 years or so ago and he decided to move out of their home and rented a house where he stays.
50. In cross-examination, PW 2 said that his father, the deceased herein brought him up as his child. His father died in 1996 and their mother died afterwards. He had however never obtained a certificate of birth or a chief’s letter introducing him as the deceased’s son and he has never known when he was born. He said that he was young when his parents sued each other in court. He said further that he did not report the fights with the appellant to the area chief even as he knew the chief very well.
51. PW 3 Peter Kingangi Njeru said that he is a cousin of the protestors, their fathers being brothers, with his father being older than the protestors’ father. He was the eldest son to his father. He was also the former chief of Njukuini location. He said he knew the protestors as the deceased’s children as he saw them when they were born. He said that their parents were separated by the court in his presence and the deceased was ordered to take care of his children. He said that the deceased, his uncle, had several wives and he settled down with the appellant herein. He said that the mother of the protestors went away as she had no one to take care of her. She bore other children afterwards and the protestors were not welcome by the appellant herein and they have suffered for so long.
52. In cross-examination, PW 3 said he could not remember the case number in which the deceased and the protestors’/respondents’ mother were separated but that at the time they had five children. He said that the other children were women and they passed on. The two respondents were young and had suffered a lot and were roaming about after their mother separated with their father. He said the deceased was ordered by the same magistrate’s court to take care of the protestors. He however could not recall the case number. He also said that the respondents had never lived on their father’s land.
53. The appellant testified as DW 1 and called two witnesses, DW 2, Stephen Mburu Kiranga and DW 3, Muthira Njeru to support her case.
54. The appellant said she was a wife of the deceased and they had eight (8) children. She had stayed at his home for over 50 years. She said that at the time she was married, she did not find the deceased with a wife. She also did not know the respondents’ mother known as Jane Njoki nor the respondents. She did not know them to be the deceased’s children, she had never stayed with them and she had never seen them on her land, her husband’s land where she stays with her children and for that matter she had never chased them from that land. She said that she came to know of the respondents when they filed the objection to her petition for grant of the letters of administration. She found out about the divorce case from the protestors/respondents. She was shown the proceedings of the divorce case by her counsels and she acknowledged that she had seen them and they showed that they were conducted in the Gichugu Magistrates’ court but she did not know what transpired in the case.
55. In cross-examination by the 1st protestor/respondent, the appellant said that if he was a son of her husband he ought to have told her. She said that she did not find him at her husband’s home at the time the deceased married her and never saw him at a young age. She only saw him in court during this case. She denied that her son resembles the 1st respondent.
56. The 2nd respondent had no question in cross-examination for the appellant.
57. PW 2, Stephen Mburu Kiranga said that he was a former assistant chief of Ngerwe sub-location where the deceased came from and they were also good friends. He knew the appellant as the only wife of the deceased since she was married and he was not aware that the deceased had any other wife or children. He knew and named her children. PW 2 said that there had never been a conflict over the deceased’s land.
58. In cross-examination by the 1st respondent, PW 2 said that he had never gone to his office about this case and he had never sat to hear their case. He said that he had never signed any document for the 1st respondent about the deceased’s land. He denied that he knew the 1st respondent’s clan nor that the 1st respondent was from his clan. He denied that he was interfering with the case nor that he was lying.
59. The 2nd respondent’s cross-examination was on the same lines as that of the 1st respondent and PW 2’s answers were the same.
60. DW 3, Muthira Njeru said that he is an immediate neighbor of the deceased and the appellant as their respective parcels of land share boundaries since land demarcation around 1957. However, he could not remember his land registration number. His evidence was similar to that of DW 2 that the deceased had only one wife, the appellant and none else and no other children.
61. Upon hearing the parties, the trial court delivered its judgment on 7th June 2017 whereby it allowed the protest and recognized the protestors/respondents herein as dependents of the deceased Ernest Ndambiri and that they were entitled to a share of their father’s estate. The trial court directed that the deceased’s estate be subdivided into two shares, each representing a house and the subdivision be made depending on the number of units in each house. The first house had five units and would get a total of 4.46 acres while the second house had eight units and would get a total of 7.13 acres. The units in each house would each get an equal share of their total share with the appellant getting a life interest in the estate.
62. The appellant was dissatisfied with that decision and filed the present appeal on the grounds outlined above. The appeal was disposed of on written submissions filed by both parties. The submissions are considered in the analysis that follows.
63. The central issue in this case is whether or not the respondents are children of the deceased and if so they would be his dependents as provided for under section 29 of the Law of Succession Act (Cap. 160) Laws of Kenya and therefore entitled to a share of his estate.
64. The appellant has raised and extensively submitted on the issue of the trial court having fallen into error by determining the succession cause as intestate and failed to determine it as testate on the basis that the deceased had left behind a valid will that was filed by the appellant in court on 16th December 1998. The trial court referred to the will twice in its judgment by stating that a will was filed in the proceedings on 16th December 1998. She however found that neither the appellant nor the respondents referred to it in their respective testimonies. The trial court therefore proceeded to determine the cause as an intestate succession.
65. The succession cause was filed as intestate on 17th October 1996 through a petition for letters of administration intestate. The lower court record shows that on 3rd November 1997 a copy of the will of Ernest Ndambiri Kingangi, the deceased herein was filed in court. The appellant was throughout represented by counsel in the case. The respondents were also represented by counsel. On 12th November 1999, both the petitioner and objector were present in court with their respective counsels when Mr. Githinji, learned counsel for the petitioner informed the court that they had since realized that the deceased had drafted a will and hence t
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Introduction
1. Jephitha Njue Ernest and David Kingangi have been seeking to be recognized as children of Ernest Ndambiri King’ang’i for the longest time. In a judgment delivered on 7th June 2017, the trial court recognized them as children of the deceased and ordered that they be included in the distribution of the estate of the deceased. The appellant who was a wife of the deceased at the time of his demise is not satisfied with that decision. She maintained through the succession cause before the trial court and now in the present appeal that the two were not the deceased’s children and therefore are not entitled to inherit his estate.
2. The story leading to this conundrum looks almost straightforward but due to the fallibility of human beings, it has been complicated from beginning to now. The learned trial magistrate remarked after what she believed to be a careful analysis of the obtaining circumstances that her decision would bring to a close the long-protracted inheritance issues between the petitioner (now appellant) and protestors (now respondents) since it had remained in the courts since 1996 shortly after the demise of Ernest. It has not and the dispute continues now before this court on appeal.
Grounds of appeal
3. The memorandum of appeal amended on 28th August 2024 lists 21 grounds of appeal, some with sub-paragraphs. They can be summarized as follows.
i. Grounds 1, 3, 5, 9, 14: That the learned trial magistrate erred in law and in fact in failing to critically and exhaustively analyze the evidence tendered by the appellant and her witnesses, showing open bias against the appellant’s evidence and improperly analyzing the evidence of the respondents in isolation and thereby making the judgment against the weight of the evidence tendered by the appellant and her witnesses.
ii. Grounds 2, 8, 19, 20: That the learned trial magistrate erred in law and in fact by failing to properly apply the Law of Succession Act to the facts of the case in distributing the deceased’s estate by awarding the estate to the deceased’s beneficiaries and then to the protestors which in any case was disproportionate to their shares, if they were proper beneficiaries, which however is denied.
iii. Grounds 4, 7, 18: That the learned trial magistrate erred in law and in fact by failing to hold that the deceased died testate as per his last will dated 10th of June 1994.
iv. Grounds 6, 10, 11, 12, 13, 15, that the learned trial magistrate erred in law and in fact by irregularly introducing and relying on “evidence” that was not otherwise produced and neglecting to consider the evidence adduced by the appellant in that she disregarded the chief’s letter dated 5th November 2016 and instead relied on the one dated May 2016 in favour of the respondents yet the maker of the same had not been called to produce it and no party had produced it thereby causing herself to act as a witness for the respondents/protestors.
v. Grounds 16, 17. That the learned trial magistrate failed to ascertain the truthfulness of the assertion that the mother of the respondent/protestors had sired other children after she had separated with the deceased such as the 1st protestor who was born in 1966 and consequently, there was no evidence that the protestors were the children of the deceased
vi. Ground 21. The learned trial magistrate erred by leaving out a beneficiary of the estate namely James Muriithi who is a child of the deceased.
Submissions
4. Both parties filed submissions based on the initial memorandum of appeal dated 5th July 2017 yet the amended memorandum of appeal was allowed by the court on 29th July 2024. I will proceed on the amended memorandum of appeal with the submissions as filed.
5. The appellant submits that the deceased’s estate should be distributed in accordance with his last known will dated 10th June 1994. The appellant has raised nine issues for determination. Like the grounds of appeal, some of these grounds are for consolidation because they are basically the same issue repeated. The issues are consolidated as follows:
6. Issue numbers 1, 2, 3 and 9 which are:
i. Whether the trial magistrate erred in law and fact by making a judgment against the weight of the evidence presented by the appellant and her witnesses.
ii. Whether the trial court failed to adhere to the provisions of the Law of Succession Act (Cap. 160) Laws of Kenya in distributing the deceased’s estate.
iii. Whether the learned trial magistrate erred by not recognizing that the deceased died testate and thus should have distributed the estate according to the will dated 10th June 1994.
iv. Whether the trial court’s decision to award the estate to the respondents as if the deceased died intestate constituted a miscarriage of justice.
7. These issues relate to the appellant’s contention that the deceased died testate and so the trial magistrate erred by distributing the estate as if he had died intestate.
8. The appellant submits on these issues that she tendered evidence that the deceased had left behind a will which the appellant filed in court on 16th December 1998, but the trial court disregarded and dismissed her evidence and relied on the unsubstantiated claims of the respondent thereby proceeding as if the deceased died intestate.
9. The appellant submits further that in accordance with section 5 of the LSA, the will should have prevailed over the intestate succession and therefore the trial court erred in applying section 40 of the LSA which governs intestate succession to the distribution of the estate. The appellant supports this submission with the case of In re Estate of Lusila Wairu Waweru (Deceased) [2020] KEHC 4731 (KLR) for the holding that a testator’s will should be respected and that there exist substantive complexity for the court to vary or set aside the will made by a testator.
10. The case of In re Estate of Gurdip Kaur Sagoo [2021] KEHC 6634 (KLR) is also cited for the court’s holding that:
“The Court’s jurisdiction to interfere with the valid will of a testator should be cautiously and sparingly exercised. Indeed, a testator must be allowed to exercise his unfettered testamentary freedom provided that his disposition as regards dependents is in the eyes of the Court, reasonable, taking into account all circumstances.”
11. In the above case, the High Court’s final decision was that it declined to interfere with the will of the deceased and instead to honour the wishes of the deceased as expressed in her will on grounds that Harvinder, who was the applicant seeking reasonable provision for herself as a dependent out of the net estate of the deceased, had received advancement from the deceased during her lifetime and further that she was not destitute. This decision was however overturned by the Court of Appeal in Dadhialla v Chaudri (Sued as Executor of the Estate of Gurdip Kaur Sagoo) & 2 others [2025] KECA 728 (KLR) on grounds that there was insufficient evidence to prove that the appellant, Harvinder was adequately provided for previously.
12. Issues Nos 4, 6 and 7:
i. Whether the trial magistrate relied on unsubstantiated facts and failed to critically analyze the evidence provided by the appellant leading to an erroneous judgment.
ii. Whether the trial magistrate improperly introduced evidence such as the chief’s letters without calling the makers for cross-examination.
iii. Whether the trial magistrate erred by awarding land to the respondents in a manner that was disproportionate and potentially unjust, given the alleged absence of evidence that they were beneficiaries.
13. These issues relate to the position by the appellant that the protestors/respondents herein had not been proved to be sons of the deceased and therefore not dependents so as to benefit from his estate The appellant submits on these issues that the claims by the respondents that they were sons of the deceased were not verified as the evidence relied upon by the trial court was witness testimonies and uncorroborated documents such as national identity cards that were not substantiated with proof of paternity and letters from local chiefs dated 15th June 1987 which identified the deceased’s dependents were produced by the protestors in examination-in-chief without calling the authors for cross-examination contrary to sections 68 as read with section 146 of the Evidence Act (Cap. 80) Laws of Kenya. Further that the trial court did not consider whether the mother of the respondents was ever married to the deceased and if indeed all requirements of Kikuyu marriage were met and whether there was a divorce and what was the case number.
14. Issue Nos 5 and 8 are as follows:
i. Whether the trial magistrate demonstrated open bias against the appellant by making unwarranted conclusions about her credibility.
ii. Whether the trial magistrate failed to consider the appellant’s entire evidence while improperly analyzing the respondent’s evidence in isolation.
15. These are issues where the appellant submits that the trial court was biased in its assessment of the evidence tendered in favour of the respondents. It is submitted that the comments by the learned magistrate that the appellant pretended not to know that the deceased was married to another woman, the respondents’ mother before and the appellant never welcomed the respondents to her home were without basis and therefore biased against the appellant and not objective in view of the evidence tendered.
16. The final issue number 10 is whether the exclusion of a potential beneficiary James Muriithi from the distribution of the estate by the trial court was an error by the trial magistrate.
17. It is submitted on this issue that by excluding James Muriithi, a child of the deceased without examining his status as a legitimate heir, the trial court’s decision was incomplete and unjust.
18. The issues as outlined above cover all the grounds of appeal set out in the memorandum of appeal as raised by the appellant.
19. The respondents on their part support the trial court’s decision, maintaining that the learned trial magistrate properly analyzed the evidence adduced and reached the correct decision. They therefore ask this court to uphold it.
20. The respondents submit that the appellant filed the petition for letters of administration intestate and only filed the alleged will after the respondents filed the protest. Even then, the trial court found that the same did not satisfy the requirements of a valid will and therefore determined that the deceased died intestate. That the trial court applied section 40 of the LSA to the distribution of the estate because the deceased was polygamous.
21. The respondents submit that the trial court perused files in other cases being Civil Suit No. 408 of 1966 inside of which was found a file for Civil Suit No. 46 (or 48) of 1983 from which it determined that the protestors were children of the deceased.
22. The respondents support their submissions with the decision in the case of In Re Estate of John Musambayi Katumanga – (Deceased) [2014] KEHC 7506 (KLR).
Duty of appellate court on a first appeal
23. 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)”.
24. I am well guided by these principles in the consideration and determination of this appeal.
25. I have considered the grounds of appeal, the submissions by the parties in this appeal and reviewed the evidence tendered before the trial court and the judgment of the trial court. The issue for determination is whether or not the learned trial magistrate was correct in allowing the protest and in her distribution of the deceased’s estate.
Background to the case
26. As stated at the beginning of this judgment, this case revolves around the issue of whether or not the respondents/protestors before the trial court proved that they were children of the deceased and therefore dependents under section 29 of the LSA and therefore entitled to a share of his estate. That issue then ties in the issue of the validity of the will dated 10th June 1994 because in the will, the deceased did not make any provision for the respondents. The evidence before the trial court on these two issues has to be considered.
27. The deceased herein Ernest Ndambiri King’ang’a (as per the certificate of death No. 291858 on record dated 8th May 1996) died on 17th March 1996 aged 69 years.
28. On 17th October 1996, the appellant, Nancy Rwamba Ndambiri as wife of the deceased Ernest Ndambiri Kingangi (as per the petition), took out a petition for letters of administration intestate (emphasis by underlining and bold mine) in the Senior Principal Magistrate’s Court at Embu Succession Cause No. 195 of 1996. In the affidavit in support of petition for letters of administration intestate she deposed that the deceased died intestate and left the following surviving him:
i. Nancy Rwamba Ndambiri (wife).
ii. James Muriithi (son)
iii. Lydia Kuthii
iv. Abisagi Muthoni.
v. John Muchira.
vi. Manasses Njeru.
vii. Irene Wanja
viii. Muriuki Ernest.
29. She also deposed that the deceased assets were land parcel No. Ngariama/Thirikwa/236.
30. On 30th October 1996, a notice by the District Registrar, Embu was issued that a petition for grant of letters of administration Intestate (emphasis by underlining and bold mine) to the estate of the deceased had been filed by Nancy Rwamba Ndambiri, in her capacity as wife of the deceased, in the Senior Principal Magistrate’s Court registry.
31. At the same time on 30th October 1916, there was issued in the same cause a notice by the same District Registrar that an application for probate of the last will (or letters of administration of the estate) of the deceased Ernest Ndambiri King’ang’a had been made by the same Nancy Rwamba Ndambiri
32. On 13th November 1996 Jefitha Njue Ndambiri, the 1st respondent herein, filed vide Form No. 76, Objection to Making of a Grant in the said succession cause to the petition on grounds that he was a son of the deceased and his mother was the 1st wife and that the petitioner did not inform him and his brothers about the succession cause. Contemporaneously, he filed Form No. 25 by way of answer to the petition for grant of representation to the estate of the deceased and prayed that the application for grant by the petitioner should be dismissed for reasons that the petitioner did not inform him and his brothers and she omitted their names and that they should also get a share of the parcel of land. He also filed Form No. 84 being a notice of a petition for a grant of representation to the estate of the deceased on grounds that the petitioner did not want them to get any share out of the deceased’s land parcel No. Ngariama/Thirikwa/236 and that they wanted a share of the same. He named the following persons as those left out in the succession cause filed by the appellant:
i. David King’ang’i
ii. Jefitha Njue
iii. Josphat Njiru
iv. Nancy Wanjira
v. Mary Muthoni
33. On 6th April 1997, the parties attended court and upon hearing them, the court issued a Grant of Letters of Administration Intestate of the estate of the deceased to the petitioner Nancy Rwamba Ndambiri as the widow of the deceased with directions that the objector Jephitha to file protest after the petitioner had applied for confirmation of grant and that the petitioner to serve a copy of the application for confirmation of grant upon the objector.
34. On 10th March 1998, the petitioner filed a chamber summons dated 5th February 1998 praying that the court issues her with temporary letters of administration. She deposed in her affidavit sworn on 6th March 1996 that the succession cause had already been gazetted vide Notice No. 694 of 13th February 1998.
35. On 3rd November 1998, the petitioner filed summons for confirmation of grant dated 3rd November 1998 (see the difference in years). In her supporting affidavit sworn on 31st October 1998 the petitioner deposed that the deceased was survived by his wife Nancy Rwamba Ndambiri and the following:
i. James Muriithi Ernest - adult son
ii. Lydia Kuthii Ernest - adult daughter (unmarried)
iii. John Muchira Ernest - adult son
iv. Abisagi Muthoni Ernest - adult daughter (unmarried)
v. Irene Wanja Ernest - daughter – minor
vi. Manasse Gichovi Ernest - son - minor
vii. Justine Muriuki Ernest. - son - minor
36. She then deposed that the identification and shares of all persons beneficially entitled to the said estate had been ascertained and determined as follows:
i. Nancy Rwamba Ndambiri to get 0.79 Ha
ii. Lydia Kuthii Ernest to get 0.57 Ha.
iii. John Muchira Ernest to get 0.57 Ha.
iv. Abisagi Muthoni Ernest to get 0.57 Ha.
v. Irene Wanja Ernest to get 0.57 Ha.
vi. Manasse Gichovi Ernest to get 0.57 Ha.
vii. Justine Muriuki Ernest. to get 0.57 Ha.
37. It is immediately discernible from this proposed distribution of the estate of the deceased that James Muriithi Ernest, who was indicated in the supporting affidavit to the summons for confirmation of grant, as an adult son and survivor of the deceased is not among the beneficiaries to whom the estate was to be shared. Therefore, the ground of appeal alleging that the trial court was the one that erred in excluding him as a potential beneficiary cannot be valid. In actual fact James Muriithi Ernest was not left out even as his name was not indicated above because the trial court simply said that the share of the estate that was to go to their mother’s house was to be shared equally among the eight beneficiaries, who were the mother, the appellant herein, and her seven children who included James Mureithi Ernest. That ground of appeal therefore fails this early in the determination of the appeal.
38. On 6th November 1998, Jephitha Njue Ndambiri filed a caveat dated 29th October 1998 against distribution of the estate without notice to him.
39. On 12th November 1999, one year after the summons for confirmation of grant had been filed, when the matter came up in court, Mr. Githinji, learned counsel for the petitioner informed the court that after filing the cause they had learnt that the deceased had drafted a will and so they had to comply with Form 80. The matter was thus stood over generally.
40. On 24th May 2000, one and a half years later, the matter was again stood over generally on the application of counsel that they wished the matter heard in the High Court there being a new discovery of a will.
41. The matter was eventually transferred and registered in the High Court at Embu as Succession Cause No. 337 of 2002. A hearing was conducted on 18th October 2007 when two witnesses, the protestors, were heard. Their advocate then applied for adjournment to call other witnesses but due to various reasons no further hearing was heard before the High Court until 1st March 2017 when it appears that the High Court on its own motion directed that the file be transferred to the Principal Magistrate’s Court at Kianyaga/Gichugu for hearing and determination.
42. The case started de novo before Hon. A. N. Makau, SRM who then heard the matter to conclusion and delivered the judgment, the subject of the appeal herein.
Case before the trial court
43. The case before the trial court was heard on 10th May 2017. The hearing started with the protestors’ case where both of them Jefitha Njue Ndambiri, PW 1 and David Kingangi Ernest Ndambiri PW 2, testified and called one witness PW 3, Peter Kingangi Njeru.
44. The petitioner’s case was then heard with the petitioner PW 1, Nancy Rwamba testifying and also called two other witnesses, DW 2, Stephen Mburu Kiranga, DW 3, Mutura Njeru.
45. The protestors’ case was that they were the sons of the deceased with his first wife Jane Njoki, now deceased. That the appellant herein Nancy Rwamba Ndambiri was their step-mother but she had refused to recognize them as sons of the deceased nd had failed to involve them in the succession cause and thus their protest. That they need a share of the deceased’s estate as his children.
46. In cross-examination he produced his national identity card and said he did not have a certificate of birth. He said that he knew both his parents and they brought him up. They lived on their land parcel No. 236.
47. PW 1 said further in cross-examination that he knew very well that his parents had a case in court about divorce in 1966, the year that he was born. His mother was the one who had sued his father. According to him they had divorced. He however said that he did not know about another case between his parents filed in 1983. He named his siblings as Nancy Wanjira, Nancy (Mary) Muthoni, Jedidah Wairimu and David Kingangi. Here he left out Josephat Njiru who had appeared in his initial filings in court when he named the persons who had allegedly been left out by the appellant when she filed the succession cause. He instead included Jedidah Wairimu who was not in the initial list.
48. He said that they had left the land where they were living with their parents a long time ago when his mother was alive.
49. PW 2, was David Kingangi Ernest Ndambiri. He testified that they started having fights with their step-mother, the appellant herein, some 20-30 years or so ago and he decided to move out of their home and rented a house where he stays.
50. In cross-examination, PW 2 said that his father, the deceased herein brought him up as his child. His father died in 1996 and their mother died afterwards. He had however never obtained a certificate of birth or a chief’s letter introducing him as the deceased’s son and he has never known when he was born. He said that he was young when his parents sued each other in court. He said further that he did not report the fights with the appellant to the area chief even as he knew the chief very well.
51. PW 3 Peter Kingangi Njeru said that he is a cousin of the protestors, their fathers being brothers, with his father being older than the protestors’ father. He was the eldest son to his father. He was also the former chief of Njukuini location. He said he knew the protestors as the deceased’s children as he saw them when they were born. He said that their parents were separated by the court in his presence and the deceased was ordered to take care of his children. He said that the deceased, his uncle, had several wives and he settled down with the appellant herein. He said that the mother of the protestors went away as she had no one to take care of her. She bore other children afterwards and the protestors were not welcome by the appellant herein and they have suffered for so long.
52. In cross-examination, PW 3 said he could not remember the case number in which the deceased and the protestors’/respondents’ mother were separated but that at the time they had five children. He said that the other children were women and they passed on. The two respondents were young and had suffered a lot and were roaming about after their mother separated with their father. He said the deceased was ordered by the same magistrate’s court to take care of the protestors. He however could not recall the case number. He also said that the respondents had never lived on their father’s land.
53. The appellant testified as DW 1 and called two witnesses, DW 2, Stephen Mburu Kiranga and DW 3, Muthira Njeru to support her case.
54. The appellant said she was a wife of the deceased and they had eight (8) children. She had stayed at his home for over 50 years. She said that at the time she was married, she did not find the deceased with a wife. She also did not know the respondents’ mother known as Jane Njoki nor the respondents. She did not know them to be the deceased’s children, she had never stayed with them and she had never seen them on her land, her husband’s land where she stays with her children and for that matter she had never chased them from that land. She said that she came to know of the respondents when they filed the objection to her petition for grant of the letters of administration. She found out about the divorce case from the protestors/respondents. She was shown the proceedings of the divorce case by her counsels and she acknowledged that she had seen them and they showed that they were conducted in the Gichugu Magistrates’ court but she did not know what transpired in the case.
55. In cross-examination by the 1st protestor/respondent, the appellant said that if he was a son of her husband he ought to have told her. She said that she did not find him at her husband’s home at the time the deceased married her and never saw him at a young age. She only saw him in court during this case. She denied that her son resembles the 1st respondent.
56. The 2nd respondent had no question in cross-examination for the appellant.
57. PW 2, Stephen Mburu Kiranga said that he was a former assistant chief of Ngerwe sub-location where the deceased came from and they were also good friends. He knew the appellant as the only wife of the deceased since she was married and he was not aware that the deceased had any other wife or children. He knew and named her children. PW 2 said that there had never been a conflict over the deceased’s land.
58. In cross-examination by the 1st respondent, PW 2 said that he had never gone to his office about this case and he had never sat to hear their case. He said that he had never signed any document for the 1st respondent about the deceased’s land. He denied that he knew the 1st respondent’s clan nor that the 1st respondent was from his clan. He denied that he was interfering with the case nor that he was lying.
59. The 2nd respondent’s cross-examination was on the same lines as that of the 1st respondent and PW 2’s answers were the same.
60. DW 3, Muthira Njeru said that he is an immediate neighbor of the deceased and the appellant as their respective parcels of land share boundaries since land demarcation around 1957. However, he could not remember his land registration number. His evidence was similar to that of DW 2 that the deceased had only one wife, the appellant and none else and no other children.
61. Upon hearing the parties, the trial court delivered its judgment on 7th June 2017 whereby it allowed the protest and recognized the protestors/respondents herein as dependents of the deceased Ernest Ndambiri and that they were entitled to a share of their father’s estate. The trial court directed that the deceased’s estate be subdivided into two shares, each representing a house and the subdivision be made depending on the number of units in each house. The first house had five units and would get a total of 4.46 acres while the second house had eight units and would get a total of 7.13 acres. The units in each house would each get an equal share of their total share with the appellant getting a life interest in the estate.
62. The appellant was dissatisfied with that decision and filed the present appeal on the grounds outlined above. The appeal was disposed of on written submissions filed by both parties. The submissions are considered in the analysis that follows.
63. The central issue in this case is whether or not the respondents are children of the deceased and if so they would be his dependents as provided for under section 29 of the Law of Succession Act (Cap. 160) Laws of Kenya and therefore entitled to a share of his estate.
64. The appellant has raised and extensively submitted on the issue of the trial court having fallen into error by determining the succession cause as intestate and failed to determine it as testate on the basis that the deceased had left behind a valid will that was filed by the appellant in court on 16th December 1998. The trial court referred to the will twice in its judgment by stating that a will was filed in the proceedings on 16th December 1998. She however found that neither the appellant nor the respondents referred to it in their respective testimonies. The trial court therefore proceeded to determine the cause as an intestate succession.
65. The succession cause was filed as intestate on 17th October 1996 through a petition for letters of administration intestate. The lower court record shows that on 3rd November 1997 a copy of the will of Ernest Ndambiri Kingangi, the deceased herein was filed in court. The appellant was throughout represented by counsel in the case. The respondents were also represented by counsel. On 12th November 1999, both the petitioner and objector were present in court with their respective counsels when Mr. Githinji, learned counsel for the petitioner informed the court that they had since realized that the deceased had drafted a will and hence t
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