1. This is a first Appeal. It arises from a protracted succession dispute. The dispute pits blood against blood. The subject is the estate of the late Muthengo Chalovu Nguma. The deceased died intestate on 4th March, 1992.
2. The Court is called upon to determine how the Estate of a polygamous person should be distributed. In distributing such an Estate what would be said to be fair and equitable?
Background Facts
3. The deceased was a polygamist. He had six wives. He left behind twenty-five beneficiaries. The estate is substantial. It comprises seven distinctive parcels of land located in Kilifi County.
4. The deceased having passed away on 4th March, 1992, the estate administration commenced nearly three decades after his demise. The beneficiaries attempted mediation. The mediation collapsed. They could not agree on a mode of distribution. They are however not in dispute as to the identities of the beneficiaries.
5. Earlier on 22nd April, 2017, the family had invited the then Area Chief one Gibson Katana Kazungu to solve the dispute. The Chief convened a family meeting and led a panel of elders in determining the dispute. That the dispute still found its way to the Court is a testament that the determination by the Chief and Elders panel did not sit well with the entire family.
6. At the lower Court the matter proceeded to a full hearing. The Trial Court took viva voce evidence. The Trial Court delivered its judgment on 28th April, 2025 (wrongly dated 28th April, 2024). The Learned Trial Magistrate directed that the entire estate be shared equally among all twenty-five beneficiaries.
7. The Appellant was aggrieved by this blanket decree of equality. He lodged this Appeal. He filed a Memorandum of Appeal dated 26th May, 2025.
8. The grounds of appeal relied upon are as follows:
1. The learned Magistrate erred in law and fact when he failed to properly evaluate the evidence adduced by the parties and arrived at an erroneous decision on the mode of distribution of the estate of the deceased.
2. The learned Magistrate erred in law and fact when he failed to appreciate that the deceased had prior to his demise apportioned and or distributed his estate to his heirs and that the heirs had acquiesced to the mode of distribution.
3. The Learned Magistrate erred in law and fact when he failed to appreciate that some of the properties forming part of the estate of the deceased could not economically be shared out equally amongst all the beneficiaries due to their limited acreage.
9. The Appellant seeks the following reliefs in this Appeal:
a) This Appeal be allowed by setting aside the Judgment and decree by Hon. G.M. MOKUA, Resident Magistrate delivered at Kaloleni in M.C.Succession Cause No. E008 of 2022- In the estate of Muthengo Chalovu Nguma and substituting the said Judgment and Decree with a Judgment and Decree distributing the estate in the mode of distribution proposed by the appellant in the affidavit in support of the Summons for confirmation of grant dated 20th November 2023.
The Appellant’s Submissions
10. The Appellant filed written submissions dated 28th February, 2026. He relied on Section 42 of the Law of Succession Act. He argued that the deceased had apportioned some properties during his lifetime. He submitted that the heirs had acquiesced to this distribution for decades without objection.
11. The Appellant further asserted a customary trust. He argued that two parcels, Kilifi/Chilulu/432 and Kilifi/Chilulu/64, were purchased using dowry proceeds. These proceeds belonged to the daughters of the first wife, Pahe Mutengo. He submitted that sharing small parcels, some measuring less than an acre, equally among twenty-five people is economically absurd.
12. The Respondent opposed the Appeal. He filed written submissions urging the Court to uphold the Trial Court's decision. He argued that the deceased did not leave a will. He asserted that the properties were unequivocally registered in the deceased's name. He argued that customary dowry claims belong in a land or trust Court, not a succession Court.
13. The Respondent anchored his case on Sections 38 and 40 of the Law of Succession Act. He cited the Court of Appeal decision in M’Murithi v Murithi [2015] KECA 347 (KLR). He submitted that equal distribution was the only fair method mandated by law when parties fail to reach an agreement.
Issues for determination
14. The Court has carefully considered the Memorandum of Appeal, the evidence on record, and the rival submissions by Counsel for the parties. The Court frames three issues for determination as follows:
(a) Whether the Appellant proved that the deceased made lifetime gifts or held properties in a customary dowry trust.
(b) Whether the Trial Court erred in law by ordering an equal distribution of a polygamous estate.
(c) Whether this Court should impeach the Trial Court's decision and substitute a different mode of distribution.
Analysis
15. This is a first appeal. The duty of a first appellate Court is well settled. The Court must reconsider the evidence. It must evaluate the facts afresh. It must draw its own independent conclusions.
16. This principle was laid down in the locus classicus case of Selle & Another v Associated Motor Boat Company Ltd and Others [1968] 1 EA 123. The Court of Appeal held:
"An appeal to the Court of Appeal from a trial by the High Court is by way of a 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."
(a) Whether the Appellant proved that the deceased made lifetime gifts or held properties in a customary dowry trust.
17. On the first issue, the Appellant alleged lifetime apportionment. He also claimed a dowry trust regarding two properties. The law places the strict burden of proof on the person who makes the allegation.
18. Section 107 of the Evidence Act is absolute. He who desires a Court to give judgment dependent on the existence of facts must prove that those facts exist. The Appellant carried this evidential burden.
19. The Court of Appeal articulated this doctrine in Ndiritu (Suing as Administrator for the Estate of George Ndiritu Kariamburi - Deceased) v Ropkoi & another [2004] KECA 65 (KLR). The Court held:
"As a general proposition under Section 107 (1) of the Evidence Act, Cap 80, the legal burden of proof lies upon the party who invokes the aid of the law and substantially asserts the affirmative of the issue. There is however the evidential burden that is cast upon any party the burden of proving any particular fact which he desires the court to believe in its existence which is captured in Sections 109 and 112 of the Act."
20. The Appellant brought two village elders as witnesses. They testified about a family meeting held on 22nd April, 2017. They relied purely on oral narratives regarding dowry proceeds. There was no documentary evidence of a will. There was no financial proof tracing the dowry proceeds to the purchase of the land. The parties who were said to have benefited from this dowry arrangement or the purchase of the land were not called to testify.
21. The Trial Court properly evaluated this specific aspect. The Appellant failed to discharge his evidential burden regarding the dowry trust and the lifetime gifts. The challenge on this specific evidentiary ground must fail. The properties remain part of the free estate of the deceased. They are available for distribution.
(b) Whether the Trial Court erred in law by ordering an equal distribution of a polygamous estate.
22. On the second issue, the deceased died intestate. He was in a polygamous marriage. The applicable law is therefore Section 40 of the Law of Succession Act which states as follows:
“40. Where intestate was polygamous
(1)Where an intestate has married more than once under any system of law permitting polygamy, his personal and household effects and the residue of the net intestate estate shall, in the first instance, be divided among the houses according to the number of children in each house, but also adding any wife surviving him as an additional unit to the number of children.
(2) The distribution of the personal and household effects and the residue of the net intestate estate within each house shall then be in accordance with the rules set out in sections 35 to 38.”
23. Section 40(1) dictates the exact statutory formula for distribution. The net intestate estate must first be divided among the houses. This is done according to the number of children in each house. The surviving wife is added as an additional unit to that house.
24. The Trial Court ordered absolute, mathematical equality across all twenty-five beneficiaries. This was a grave misdirection in law. It blatantly disregarded the statutory "house" formula mandatory for polygamous estates.
25. The Respondent's reliance on Stephen Gitonga M'Murithi was misplaced. While that case guarantees equality among children, it does not oust the strictures of Section 40 in polygamous setups. The current law on intestate distribution in polygamous homes provides for equity within the houses, not a blind, blanket equality across the entire family tree.
26. The Court of Appeal clarified this exact position in Scolastica Ndululu Suva v Agnes Nthenya Suva [2019] KECA 1053 (KLR) The Court held:
"It is therefore evident, that, although section 40 of the Law of Succession Act provides a general provision for the distribution of the estate of a polygamous deceased person, the court has discretion to take into account factual circumstances of the particular case that may be relevant in ensuring equitable and fair distribution of the estate."
27. The Appellant rightly pointed out a glaring problem in the Trial Court's judgment. To demonstrate this, the Court notes that all the properties are of varying sizes. Title Kilifi/Chilulu/432 is said to be 1.3 ha. Title Kilifi/Chilulu/64 is 1.2ha. Title Kilifi/Chilulu/225 is 9.6ha. This is the plot where the entire family is said to reside.
28. Dividing a parcel like Kilifi/Chilulu/332, which measures a mere 0.8ha, equally among twenty-five people yields microscopic, unusable shares per person. This may be said of the other properties forming the estate.
29. This blanket equality promotes the severe and uneconomic subdivision of agricultural land. Unplanned fragmentation destroys the utility of the land. It defies logic. It frustrates land utility. It offends public policy as recognized in property law.
30. The Trial Court failed to appreciate the physical impossibility of its own decree. The Trial Court's decision is therefore fatally flawed. It misapplied Section 40 of the Law of Succession Act. It failed to prevent the uneconomic fragmentation of the estate. The law has provided the Court with a formula. It was incumbent upon the Court and the parties to follow it. The beneficiaries could agree on a separate formula, but they have failed to do so in this case.
(c) Whether this Court should impeach the Trial Court's decision and substitute a different mode of distribution.
31. The third issue is whether this Court should impeach the Trial Court's decision. Having found the trial judgment erroneous, this Court has a duty to intervene. It must substitute a lawful, practical mode of distribution or provide directions. The challenge mounted in the Memorandum of Appeal stands on solid legal ground.
32. The estate must be divided according to the houses as provided for by Section 40 of the Law of Succession Act. The distribution must factor in the varying units of each house to ensure equity, without fracturing the land into dust. In doing so the Court has a duty to act equitably and fairly. The decision of the Court of Appeal in Scolastica Ndululu Suva v Agnes Nthenya Suva [2019] KECA 1053 (KLR) should guide the Trial Court in arriving at such a mode of distribution.
33. The Trial Court failed to group the beneficiaries in their respective houses. The information provided by the parties as to how they occupy the properties is also scanty. To proceed to distribute the estate in absence of such information may lead to disruption and uprooting of families from properties they have long resided upon.
34. The Appellant proposed a structured mode of distribution in his Summons for Confirmation of Grant dated 20th November, 2023. While his claims of lifetime gifts lacked strict legal proof, his proposed physical distribution prevents severe land fragmentation. It groups beneficiaries reasonably but it is not clear from the evidence whether this was as per their respective houses.
35. The Court must balance the strictures of Section 40 with practical equity. The Appellant's proposal clusters beneficiaries into manageable, economic units. It aligns far closer to the equitable distribution envisioned by the Law of Succession Act than the Trial Court's equality. The missing link is the grouping into the housing units.
36. In doing so the Court should take into consideration the values of the properties as some will hold greater value than others.
37. Therefore, the Court finds merit in the Appeal. The Trial Court's judgment must be vacated to correct the legal and practical errors.
38. The Appeal is hereby allowed. The Judgment and Decree of the Trial Court delivered on 28th April, 2025 is set aside in its entirety.
39. The suit is remitted back to the Trial Court with directions that the Court takes appropriate evidence as to the houses of the deceased, the value of the respective properties and distributes the estate in accordance with the provisions of Section 40 of the Law of Succession Act. In doing so the Court is to apply equity and fairness.
40. Succession disputes pit family members against each other. The Court exercises its discretion on costs to preserve family harmony and encourage reconciliation. Each party shall bear their own costs of this Appeal.
Determination
41. The Appeal is allowed in the following terms:
(a) This Appeal be allowed by quashing and setting aside the Judgment and decree by Hon. G.M. MOKUA, Resident Magistrate delivered at Kaloleni in M.C.Succession Cause No. E008 of 2022- In the estate of Muthengo Chalovu Nguma.
(b) The matter is remitted back to the Trial Court (to be retried by any other Court other than the one that delivered the judgment) and the estate be distributed among the houses as per the provisions of Section 40 of the Law of Succession Act.
(c) Each party to bear their own costs of this Appeal.
42. It is so ordered.
DATED, SIGNED AND DELIVERED AT MALINDI THIS 17TH DAY OF SEPTEMBER, 2026
NJOROGE BENJAMIN K.
JUDGE
In the presence of:
Mr. Shujaa for the Appellant.
N/A for Mr. Mawasaa for the Respondent.
Mr. Mohamed - Court Assistant.
2. The Court is called upon to determine how the Estate of a polygamous person should be distributed. In distributing such an Estate what would be said to be fair and equitable?
Background Facts
3. The deceased was a polygamist. He had six wives. He left behind twenty-five beneficiaries. The estate is substantial. It comprises seven distinctive parcels of land located in Kilifi County.
4. The deceased having passed away on 4th March, 1992, the estate administration commenced nearly three decades after his demise. The beneficiaries attempted mediation. The mediation collapsed. They could not agree on a mode of distribution. They are however not in dispute as to the identities of the beneficiaries.
5. Earlier on 22nd April, 2017, the family had invited the then Area Chief one Gibson Katana Kazungu to solve the dispute. The Chief convened a family meeting and led a panel of elders in determining the dispute. That the dispute still found its way to the Court is a testament that the determination by the Chief and Elders panel did not sit well with the entire family.
6. At the lower Court the matter proceeded to a full hearing. The Trial Court took viva voce evidence. The Trial Court delivered its judgment on 28th April, 2025 (wrongly dated 28th April, 2024). The Learned Trial Magistrate directed that the entire estate be shared equally among all twenty-five beneficiaries.
7. The Appellant was aggrieved by this blanket decree of equality. He lodged this Appeal. He filed a Memorandum of Appeal dated 26th May, 2025.
8. The grounds of appeal relied upon are as follows:
1. The learned Magistrate erred in law and fact when he failed to properly evaluate the evidence adduced by the parties and arrived at an erroneous decision on the mode of distribution of the estate of the deceased.
2. The learned Magistrate erred in law and fact when he failed to appreciate that the deceased had prior to his demise apportioned and or distributed his estate to his heirs and that the heirs had acquiesced to the mode of distribution.
3. The Learned Magistrate erred in law and fact when he failed to appreciate that some of the properties forming part of the estate of the deceased could not economically be shared out equally amongst all the beneficiaries due to their limited acreage.
9. The Appellant seeks the following reliefs in this Appeal:
a) This Appeal be allowed by setting aside the Judgment and decree by Hon. G.M. MOKUA, Resident Magistrate delivered at Kaloleni in M.C.Succession Cause No. E008 of 2022- In the estate of Muthengo Chalovu Nguma and substituting the said Judgment and Decree with a Judgment and Decree distributing the estate in the mode of distribution proposed by the appellant in the affidavit in support of the Summons for confirmation of grant dated 20th November 2023.
The Appellant’s Submissions
10. The Appellant filed written submissions dated 28th February, 2026. He relied on Section 42 of the Law of Succession Act. He argued that the deceased had apportioned some properties during his lifetime. He submitted that the heirs had acquiesced to this distribution for decades without objection.
11. The Appellant further asserted a customary trust. He argued that two parcels, Kilifi/Chilulu/432 and Kilifi/Chilulu/64, were purchased using dowry proceeds. These proceeds belonged to the daughters of the first wife, Pahe Mutengo. He submitted that sharing small parcels, some measuring less than an acre, equally among twenty-five people is economically absurd.
12. The Respondent opposed the Appeal. He filed written submissions urging the Court to uphold the Trial Court's decision. He argued that the deceased did not leave a will. He asserted that the properties were unequivocally registered in the deceased's name. He argued that customary dowry claims belong in a land or trust Court, not a succession Court.
13. The Respondent anchored his case on Sections 38 and 40 of the Law of Succession Act. He cited the Court of Appeal decision in M’Murithi v Murithi [2015] KECA 347 (KLR). He submitted that equal distribution was the only fair method mandated by law when parties fail to reach an agreement.
Issues for determination
14. The Court has carefully considered the Memorandum of Appeal, the evidence on record, and the rival submissions by Counsel for the parties. The Court frames three issues for determination as follows:
(a) Whether the Appellant proved that the deceased made lifetime gifts or held properties in a customary dowry trust.
(b) Whether the Trial Court erred in law by ordering an equal distribution of a polygamous estate.
(c) Whether this Court should impeach the Trial Court's decision and substitute a different mode of distribution.
Analysis
15. This is a first appeal. The duty of a first appellate Court is well settled. The Court must reconsider the evidence. It must evaluate the facts afresh. It must draw its own independent conclusions.
16. This principle was laid down in the locus classicus case of Selle & Another v Associated Motor Boat Company Ltd and Others [1968] 1 EA 123. The Court of Appeal held:
"An appeal to the Court of Appeal from a trial by the High Court is by way of a 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."
(a) Whether the Appellant proved that the deceased made lifetime gifts or held properties in a customary dowry trust.
17. On the first issue, the Appellant alleged lifetime apportionment. He also claimed a dowry trust regarding two properties. The law places the strict burden of proof on the person who makes the allegation.
18. Section 107 of the Evidence Act is absolute. He who desires a Court to give judgment dependent on the existence of facts must prove that those facts exist. The Appellant carried this evidential burden.
19. The Court of Appeal articulated this doctrine in Ndiritu (Suing as Administrator for the Estate of George Ndiritu Kariamburi - Deceased) v Ropkoi & another [2004] KECA 65 (KLR). The Court held:
"As a general proposition under Section 107 (1) of the Evidence Act, Cap 80, the legal burden of proof lies upon the party who invokes the aid of the law and substantially asserts the affirmative of the issue. There is however the evidential burden that is cast upon any party the burden of proving any particular fact which he desires the court to believe in its existence which is captured in Sections 109 and 112 of the Act."
20. The Appellant brought two village elders as witnesses. They testified about a family meeting held on 22nd April, 2017. They relied purely on oral narratives regarding dowry proceeds. There was no documentary evidence of a will. There was no financial proof tracing the dowry proceeds to the purchase of the land. The parties who were said to have benefited from this dowry arrangement or the purchase of the land were not called to testify.
21. The Trial Court properly evaluated this specific aspect. The Appellant failed to discharge his evidential burden regarding the dowry trust and the lifetime gifts. The challenge on this specific evidentiary ground must fail. The properties remain part of the free estate of the deceased. They are available for distribution.
(b) Whether the Trial Court erred in law by ordering an equal distribution of a polygamous estate.
22. On the second issue, the deceased died intestate. He was in a polygamous marriage. The applicable law is therefore Section 40 of the Law of Succession Act which states as follows:
“40. Where intestate was polygamous
(1)Where an intestate has married more than once under any system of law permitting polygamy, his personal and household effects and the residue of the net intestate estate shall, in the first instance, be divided among the houses according to the number of children in each house, but also adding any wife surviving him as an additional unit to the number of children.
(2) The distribution of the personal and household effects and the residue of the net intestate estate within each house shall then be in accordance with the rules set out in sections 35 to 38.”
23. Section 40(1) dictates the exact statutory formula for distribution. The net intestate estate must first be divided among the houses. This is done according to the number of children in each house. The surviving wife is added as an additional unit to that house.
24. The Trial Court ordered absolute, mathematical equality across all twenty-five beneficiaries. This was a grave misdirection in law. It blatantly disregarded the statutory "house" formula mandatory for polygamous estates.
25. The Respondent's reliance on Stephen Gitonga M'Murithi was misplaced. While that case guarantees equality among children, it does not oust the strictures of Section 40 in polygamous setups. The current law on intestate distribution in polygamous homes provides for equity within the houses, not a blind, blanket equality across the entire family tree.
26. The Court of Appeal clarified this exact position in Scolastica Ndululu Suva v Agnes Nthenya Suva [2019] KECA 1053 (KLR) The Court held:
"It is therefore evident, that, although section 40 of the Law of Succession Act provides a general provision for the distribution of the estate of a polygamous deceased person, the court has discretion to take into account factual circumstances of the particular case that may be relevant in ensuring equitable and fair distribution of the estate."
27. The Appellant rightly pointed out a glaring problem in the Trial Court's judgment. To demonstrate this, the Court notes that all the properties are of varying sizes. Title Kilifi/Chilulu/432 is said to be 1.3 ha. Title Kilifi/Chilulu/64 is 1.2ha. Title Kilifi/Chilulu/225 is 9.6ha. This is the plot where the entire family is said to reside.
28. Dividing a parcel like Kilifi/Chilulu/332, which measures a mere 0.8ha, equally among twenty-five people yields microscopic, unusable shares per person. This may be said of the other properties forming the estate.
29. This blanket equality promotes the severe and uneconomic subdivision of agricultural land. Unplanned fragmentation destroys the utility of the land. It defies logic. It frustrates land utility. It offends public policy as recognized in property law.
30. The Trial Court failed to appreciate the physical impossibility of its own decree. The Trial Court's decision is therefore fatally flawed. It misapplied Section 40 of the Law of Succession Act. It failed to prevent the uneconomic fragmentation of the estate. The law has provided the Court with a formula. It was incumbent upon the Court and the parties to follow it. The beneficiaries could agree on a separate formula, but they have failed to do so in this case.
(c) Whether this Court should impeach the Trial Court's decision and substitute a different mode of distribution.
31. The third issue is whether this Court should impeach the Trial Court's decision. Having found the trial judgment erroneous, this Court has a duty to intervene. It must substitute a lawful, practical mode of distribution or provide directions. The challenge mounted in the Memorandum of Appeal stands on solid legal ground.
32. The estate must be divided according to the houses as provided for by Section 40 of the Law of Succession Act. The distribution must factor in the varying units of each house to ensure equity, without fracturing the land into dust. In doing so the Court has a duty to act equitably and fairly. The decision of the Court of Appeal in Scolastica Ndululu Suva v Agnes Nthenya Suva [2019] KECA 1053 (KLR) should guide the Trial Court in arriving at such a mode of distribution.
33. The Trial Court failed to group the beneficiaries in their respective houses. The information provided by the parties as to how they occupy the properties is also scanty. To proceed to distribute the estate in absence of such information may lead to disruption and uprooting of families from properties they have long resided upon.
34. The Appellant proposed a structured mode of distribution in his Summons for Confirmation of Grant dated 20th November, 2023. While his claims of lifetime gifts lacked strict legal proof, his proposed physical distribution prevents severe land fragmentation. It groups beneficiaries reasonably but it is not clear from the evidence whether this was as per their respective houses.
35. The Court must balance the strictures of Section 40 with practical equity. The Appellant's proposal clusters beneficiaries into manageable, economic units. It aligns far closer to the equitable distribution envisioned by the Law of Succession Act than the Trial Court's equality. The missing link is the grouping into the housing units.
36. In doing so the Court should take into consideration the values of the properties as some will hold greater value than others.
37. Therefore, the Court finds merit in the Appeal. The Trial Court's judgment must be vacated to correct the legal and practical errors.
38. The Appeal is hereby allowed. The Judgment and Decree of the Trial Court delivered on 28th April, 2025 is set aside in its entirety.
39. The suit is remitted back to the Trial Court with directions that the Court takes appropriate evidence as to the houses of the deceased, the value of the respective properties and distributes the estate in accordance with the provisions of Section 40 of the Law of Succession Act. In doing so the Court is to apply equity and fairness.
40. Succession disputes pit family members against each other. The Court exercises its discretion on costs to preserve family harmony and encourage reconciliation. Each party shall bear their own costs of this Appeal.
Determination
41. The Appeal is allowed in the following terms:
(a) This Appeal be allowed by quashing and setting aside the Judgment and decree by Hon. G.M. MOKUA, Resident Magistrate delivered at Kaloleni in M.C.Succession Cause No. E008 of 2022- In the estate of Muthengo Chalovu Nguma.
(b) The matter is remitted back to the Trial Court (to be retried by any other Court other than the one that delivered the judgment) and the estate be distributed among the houses as per the provisions of Section 40 of the Law of Succession Act.
(c) Each party to bear their own costs of this Appeal.
42. It is so ordered.
DATED, SIGNED AND DELIVERED AT MALINDI THIS 17TH DAY OF SEPTEMBER, 2026
NJOROGE BENJAMIN K.
JUDGE
In the presence of:
Mr. Shujaa for the Appellant.
N/A for Mr. Mawasaa for the Respondent.
Mr. Mohamed - Court Assistant.