NELSON NYAGA NJIRU VS LUCY WAWIRA NJIRU

Being an appeal arising from the decision of Hon. D. Endoo RM, in Embu Chief Magistrate’s Court Succession Cause No. E138 of 2021 delivered on 17^th October 2023

1. The appellant has filed a memorandum of appeal dated 24^th October 2023, challenging the decision of the trial court and seeking the following orders:
   1. That the ruling by the trial court be set aside;
   2. That the honourable court distributes the estate of the deceased as per the affidavit of protest filed on 31^st October 2022;
   3. That this appeal be allowed; and
   4. That the costs of the lower court case be awarded to the appellant.
2. The appeal is premised on grounds that:
   1. The learned trial magistrate erred in law and fact when she distributed the estate of the deceased as per the mode proposed by the respondent in the affidavit in support of the summons for confirmation of grant whereas the deceased had already settled his male children on their respective pieces of land which they have occupied and developed;
   2. The learned trial magistrate erred in law and fact when she distributed land to the grandchildren of the deceased who were not his dependants contrary to section 29 of the Law of Succession Act;
   3. The learned trial magistrate erred in law and fact as she did not consider the factual situation on the ground in ensuring equitable and fair distribution of the estate before distributing the estate that the appellant and his brothers have fully developed even after the elder daughters of the deceased had testified as such; and
   4. The learned trial magistrate erred in law and fact by dismissing the appellant’s mode of distribution whereas the deceased had formally subdivided the land to his sons prior to his death but he had not transferred the respective portions to his sons.
3. A grant of letters of administration was issued jointly to the appellant and the respondent in the estate of the deceased. The respondent filed summons for confirmation of the grant together with a supporting affidavit in which she named 12 beneficiaries and land parcel number Ngandori/Kirigi/150 as the only property forming the estate of the deceased. She deposed that 3 of the beneficiaries were deceased and she proposed a mode of distribution as detailed on the affidavit.
4. The appellant filed an affidavit of protest against the mode of distribution proposed by the respondent and stated that the deceased had already distributed his land amongst his sons who had already settled on the land and built permanent homes. That the deceased gave each of the sons 1½ acres of the named land leaving 1.075acres part of which is a road reserve and he occupied the remaining land measuring 0.33Ha which should be distributed to the daughters. That the deceased showed the 3 sons their pieces of land in the years 1979 and 1989 and he was in the process of obtaining land control board consent to transfer the land but he died before the consents were obtained. That the deceased made his wishes in writing and he produced a note showing these wishes. He stated that the proposed mode does not cover the wishes of the deceased. He also opposed the proposed distribution because it bequeaths part of the estate to grandchildren of the deceased whose parents are deceased. He proposed that each of the 4 sons of the deceased gets 1½ acres of the land and all the daughters get 0.825 acres shares equally.
5. At hearing of the protest, PW1 was the protestor, the appellant herein who stated that in 1987, the deceased called them to a meeting where he distributed the land in the manner aforementioned herein. That after 10years, he went to the lands registry and obtained the relevant consent to transfer the land but unfortunately, he died before the transfers were completed. That the deceased showed them the road accesses on the land to separate the various portions he had given to his sons.
6. He stated that they have since settled on the land and have even planted trees and built permanent homes. That the 3 older sons were given the land in 1979 but the youngest son was given his portion in 1989. That the deceased left a will which was found among his belongings and his wishes were written on it. He stated that he protests distribution of the estate to the children of his deceased’s sisters since they were married. On cross-examination, he stated that he did not consider his 3 deceased sisters as beneficiaries because they were married when they died.
7. PW2 was Mary Ikamba, a daughter of the deceased, who stated that she disagrees with the mode of distribution proposed by the respondent because the respondent is a younger sister and distribution of land is a role of the fathers. That she has no problem being given the 1 acre that belonged to their mother before her death. That the deceased made his wishes clear and he settled his sons who have since developed the property and given the same to their children and grandchildren. That all the daughters of the deceased are married and their children are to be provided for by their fathers. On cross-examination, she stated that she was present in 1979 when the deceased distributed the land to his sons. That none of the grandchildren were raised in her late mother’s house.
8. PW3 was Gladys Wanjovi, a daughter of the deceased, who stated that the deceased distributed the land to his sons while he was still alive and they settled on their respective portions. That the deceased did not distribute any land to his daughters and she has no problem with the position. She supported the mode of distribution proposed by the protestor. On cross-examination, she stated that she was left her father’s house in 1962 and only went home to visit the deceased. That the deceased distributed the land to his sons but he died before the transfers were effected.
9. PW4 was Faith Wambugu Njeru, a daughter-in-law of the deceased, who stated that before the death of the deceased, he apportioned part of his land to his sons, including her husband. That the distributed land was well defined and the boundaries were well established. On cross-examination, she stated that her mother-in-law called her to cook tea for the surveyors when the deceased had brought them to the land to establish boundaries. That the respondent was very young when the deceased distributed the land.
10. DW1 was the respondent who stated that most of the land is unoccupied save for her brother’s homes that are built in separate places. That the land measures 7 acres and her mother’s portion left is about ⅛ acre and none of the deceased’s daughters lives on it. That 3 of her sisters died and they were buried at their husband’s homes but they had children who should inherit from the estate. That when their mother died, the appellant threated her and her sister Mary and gave them money so that they should never step in that home again. That the appellant demolished her mother’s house and he had told their mother that the land belonged to the sons only. She asked the court to distribute the estate equally amongst the 12 children of the deceased.
11. DW2 was Muranyi Njiru, daughter of the deceased, who stated that she supports that the estate be distributed amongst the 12 children of the deceased. She stated that the appellant had bought land elsewhere but he later settled at home. She did not know how her brothers settled on the land. She stated that when she attended her mother’s burial, the appellant gave her some money along the road and warned her and DW1 never to return home. That the children of the deceased beneficiaries are living at their parents’ homes.
12. DW3 was Mercy Wandiri Njuki, a daughter of the deceased, who stated that she wishes for the court to distribute the estate equally amongst all the beneficiaries. She stated that their brothers distributed the land amongst themselves and that the deceased did not show them any land. That the sons of the deceased are not living in harmony on the land and they are always quarrelling about boundaries. 
13. The trial magistrate found that the proposed mode of distribution proposed by the protestor is not equitable and it offends the provisions of law in the spirit of the Constitution by discriminating against the daughters of the deceased. She found that the grandchildren of the deceased can inherit the estate of the deceased through their parents thus she made provision for them. She ordered that the estate be distributed as appears in her ruling and a certificate of confirmation of grant was consequently issued.
14. This appeal was canvassed by way of written submissions.
15. The appellant submitted that the deceased gave his sons the land as gifts inter vivos and at the time, all the children of the deceased were adults. He relied on the cases of In re Estate of Nyachieo Osindi (deceased) (2019) eKLR, In Re Estate of Phylis Muthoni M’inoti (deceased) (2018) eKLR and Muthemba v. Mungai (2021) KECA 118 (KLR). It was his argument that the deceased children of the deceased are not acknowledged as part of the beneficiaries according to the chief’s letter. He relied of section 29 of the Law of Succession Act and stated that the children of the deceased beneficiaries should not be given any of the deceased’s land. He urged the court to set aside the findings of the trial magistrate.
16. PW2 and PW3 filed their submissions in support of the appellant, stating that even though the deceased had not obtained the land control board consent, it does not change the fact that he wished for the sons to get the portions he had given then during his lifetime. They opposed distribution of the estate to the deceased’s grandchildren and argued that the grandchildren were not dependants within the meaning of section 29 of the Law of Succession Act.
17. The respondent submitted that the findings of the trial court are in line with the Law of Succession Act and is well supported by case law. That the trial court was well informed of the rights of the grandchildren to inherit from the estate of the deceased. She relied on the cases of In re Estate of Francis Mwangi Mbaria (Deceased) [2018] KEHC 8214 (KLR) and In Re Estate Of Solomon Ngatia Kariuki (Deceased) (2008) eKLR as relied on by the trial court. It was her argument that the deceased did not leave a valid will that was produced in court thus the estate was subject to the provisions of the Law of Succession Act. She urged the court to uphold the findings of the trial court.
18. From the foregoing, the issues for determination are:
    1. Whether the grandchildren of the deceased can inherit from the estate;
    2. Whether the estate was equitably distributed.
19. This court is bound to re-examine the evidence adduced at the trial court and make its own findings. This was the sentiment in the case of Selle & Another v. Associated Motor Boat Co. Ltd & Others [1968] EA 123, where the court stated thus:

"...this court is not bound necessarily to accept the findings of fact by the court below. An appeal to this 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..."

1. The appellant has contended that the children of his 3 deceased sisters should not inherit from the estate of the deceased because they are not children of the deceased. He argued that his deceased sisters were already married and when they died, they were buried at their husbands’ homes. From evidence, it is established that the children of those deceased beneficiaries live at their parents’ homes and that they never lived with the deceased or his wife. The respondent argued that the children of her deceased sisters should inherit the portions that their parents ought to have inherited.
2. In order to determine the first issue, it is important to note that since the deceased had male and female children, they are held to have equal rights in the eyes of the law. It is therefore immaterial that the 3 deceased daughters of the deceased were married and upon death, buried at their respective husbands’ homes. For purposes of succession, they are children of the deceased with as much right to inherit from the estate as the sons of the deceased. Article 27(3) of the Constitution provides that:

“Women and men have the right to equal treatment, including the right to equal opportunities in political, economic, cultural and social spheres.”.

1. This means that the deceased daughters of the deceased are counted as beneficiaries of his estate. Now, since they are deceased and were survived by children, these children can benefit from the estate, not directly, but through their parents such that the portions due to their parents are to be given to them. In the case of In re Estate of Muguro Njeru (Deceased) [2023] KEHC 20904 (KLR), the court held that:

“It is important to state that the law does not bar grandchildren from inheriting their deceased parents. Grand children may not inherit directly but the share of their parents in a deceased’s estate must be bequeathed to them.”

1. Further, in the case of In re Estate of Florence Mukami Kinyua (Deceased) [2018] eKLR, the court held thus:

“The grandchildren get into the shoes of their deceased parents and take the parent’s share in the estate of the grandparents. This was stated in Re Estate of Wahome Njoki Wakagoto (2013) eKLR where it was held:-

“Under Part V, grandchildren have not right to inherit their grandparents who die intestate after 1st July 1981. The argument is that such grandchildren should inherit from their own parents. This means that the grandchildren can only inherit their grandparents’ indirectly through their own parents, the children of the deceased. The children inherit first and thereafter grandchildren inherit from the children. The only time grandchildren inherit directly from their grandparents is when the grandchildren’s own parents are dead. The grandchildren step into the shoes of their parents and take directly the share that ought to have gone to the said parents.””

1. On the second issue of whether the estate was equitably distributed, the trial magistrate was persuaded by the mode of distribution proposed by the respondent in the supporting affidavit to the summons for confirmation of grant. The deceased was survived by 12 children namely, Gladys Wanjovi Ireri, Mary Ikamba Mwaniki, Mercy Wandiri Njuki, Nelson Nyaga Njiru, Wilson Ndwiga Njiru, Joseph Njagi Njiru, Mary Murangi Njiru, Lucy Wawira Njiru, Bernard Njeru Njiru, Catherine Njoki Njiru (deceased), Nancy Muthanje Njiru (deceased) and Sacida Mutitu Njiru (deceased).
2. Catherine Njoki Njiru (deceased) was survived by her 6 children namely Denis Kariuki, Mercy Wanjiru, Martin Mbogo, Erick Gitonga, John Mucangi, Joylina Mukami and Everlyn Mwende. Nancy Muthanje Njiru (deceased) was survived by her 6 children namely Nekitom Kinyua, Wilson Muchangi, Faith Wanyaga, David Kivuti, Fridah Muthoni and John Mugendi. Sacida Mutitu Njiru (deceased) was survived by Millicent Murugi. As already stated earlier herein, these 13 grandchildren of the deceased are eligible to inherit the portions that would have been given to their late mothers.
3. The respondent proposed that the estate comprising parcel number Ngandori/Kirigi/150 be distributed as follows:

1. The appellant proposed the following mode which excludes the deceased beneficiaries and their children:

1. Having determined that all the children of the deceased are eligible to benefit from his estate, equitable distribution of the estate of a deceased person means that the estate is to be distributed to all the beneficiaries regardless of their age, gender or financial status. It may not necessarily mean that the estate should be equally distributed but it means that none of the children of the deceased should be disinherited. In the case of In Re Estate of John Musambayi Katumanga – (Deceased) [2014] eKLR, the court held:

“The spirit of Part V, especially Sections 35, 38 and 40, is equal distribution, of the intestate estate amongst the children of the deceased.  There have been debates on whether the distribution should be equal or equitable.  My reading of these provisions is that they envisage equal distribution for the word used in Sections 35(5) and 38 is “equally” as opposed to “equitably”.  This is the plain language of the provisions.  The provisions are in mandatory terms – the property “shall … be equally divided among the surviving children.”  Equal distribution is envisaged regardless of the ages, gender and financial status of the children.”

1. From a perusal of the trial court’s findings, it is my view that the mode proposed by the respondent and adopted by that court achieves equitable distribution of the estate since none of the children of the deceased were disinherited. The portions of the estate due to the deceased daughters of the deceased are to be inherited by their children.
2. As I conclude, the appellant claimed that the wishes of the deceased were captured in writing through a note that was found amongst his belongings. However, this argument was not canvassed at the trial court and in any event, the note could not have passed as a valid will therefore this court finds no merit in it. He also averred that the trial magistrate did not consider the actual position on the ground in making her decision. It is my view that the trial magistrate, in her well-reasoned ruling, considered all the relevant factors and the provisions of the Constitution, written law and caselaw. Her decision ensured that all the bona fide beneficiaries are provided for and so I agree with her findings.
3. Therefore, I find that the appeal herein lacks merit and the same is hereby dismissed.
4. This being a family matter, there shall be no order as to costs for both the lower court matter and this appeal.
5. It is so ordered.

Delivered, dated and signed at Embu this 4^th day of December, 2024.